Republic of the Philippines prescription, did then and there willfully, unlawfully and feloniously have in his possession,

SUPREME COURT direct custody and control weighing zero point zero four (0.04) gram and zero point ten (0.10)
Manila gram or [a] total weight of zero point fourteen (0.14) gram of Methylamphetamine
Hydrochloride (Shabu), which is a dangerous drug, in violation of the above-cited law.
SECOND DIVISION
CONTRARY TO LAW.5
G.R. No. 189840               December 11, 2013
During arraignment, appellant pleaded "not guilty" in the two cases. After the pre-trial
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,  conference, a joint trial on the merits ensued.
vs.
JAY MONTEVIRGEN y OZARAGA, Accused-Appellant. Version of the Prosecution

DECISION On July 18, 2005, P/Supt. Marietto Valerio (P/Supt. Valerio) of the Makati City Police Station
Anti-Illegal Drugs Special Operation Task Force received a report from a confidential
DEL CASTILLO, J.: informant that appellant was selling shabu in Malvar Street, Barangay South Cembo, Makati
City. Thus, he immediately formed a team composed of police officers and personnel of the
Makati Anti-Drug Abuse Council (MADAC) to conduct a buy-bust operation against
Failure to physically inventory and photograph the shabu seized from an accused in the appellant. The members of the entrapment team were PO3 Esterio M. Ruiz, Jr. (PO3 Ruiz),
manner prescribed by law do not invalidate his arrest or render said drug inadmissible in PO1 Percival Mendoza, PO1 Honorio Marmonejo (PO1 Marmonejo), Barangay Captain
evidence if its integrity and evidentiary value remain intact. It could still be utilized in Rodolfo Doromal, Eugenio Dizer, Miguel Castillo, Leo Sese, and Anthony Villanueva. PO3
determining the guilt or innocence of the accused. 1 Ruiz was designated as poseur-buyer and was provided with two 100-peso bills marked
money. PO1 Marmonejo, on the other hand, coordinated the operation with the Philippine
Factual Antecedents Drug Enforcement Agency (PDEA), which issued a Certificate of Coordination. 6 The buy-bust
team then proceeded to the subject area but could not locate appellant. 7
On appeal is the Decision2 dated July 31, 2009 of the Court of Appeals (CA) in CA-G.R. CR-
H.C. No. 03208 which affirmed the Decision3 dated December 18, 2007 of Branch 65, The next day, July 19, 2005, the buy-bust team returned to Malvar Street and found appellant
Regional Trial Court (RTC) of Makati City in Criminal Case Nos. 05-1396 to 1397 convicting talking to three men. After these men departed, PO3 Ruiz, accompanied by the confidential
beyond reasonable doubt Jay Montevirgen y Oza.raga (appellant) for the crime of illegal sale informant, approached appellant. The confidential informant introduced PO3 Ruiz to appellant
and possession of shabu under Sections 5 and 11, Article II of Republic Act (RA) No. 9165 or and told him that PO3 Ruiz wanted to buy shabu. Appellant asked PO3 Ruiz how much he
the "Comprehensive Dangerous Drugs Act of 2002." wanted to buy and he replied, ₱200.00. Appellant pulled out from his pocket three plastic
sachets containing white crystalline substance and told PO3 Ruiz to choose one. He complied
The Informations against appellant read as follows: and gave the marked money to appellant as payment. Appellant pocketed the remaining plastic
sachets together with the marked money. PO3 Ruiz then took off his cap – the pre-arranged
signal that the transaction had been consummated. The other buy-bust team members then
Criminal Case No. 05-1396 rushed to the scene to assist PO3 Ruiz in apprehending appellant. The two other plastic sachets
and marked money were recovered from appellant after PO3 Ruiz ordered him to empty his
That on or about the 19th day of July 2005, in the City of Makati, Philippines, a place within pockets. PO3 Ruiz then marked the plastic sachets – "EMR" for the one appellant sold to him
the jurisdiction of this Honorable Court, the above-named accused, without being authorized and "EMR-1" and "EMR-2"8 for the other two sachets confiscated from appellant.
by law, did then and there willfully, unlawfully and feloniously sell distribute and transport,
weighing zero point zero four (0.04) gram of Methylamphetamine Hydrochloride (Shabu), Appellant was taken to the police headquarters where he was booked and the incident recorded
which is a dangerous drug, in violation of the above-cited law. in the police blotter. The items seized from him were turned over to the duty investigator who
prepared a request for laboratory examination and then sent to the crime laboratory. The
CONTRARY TO LAW.4 results revealed that the contents of the plastic sachets are positive for shabu.9

Criminal Case No. 05-1397 Version of the Defense

That on or about the 19th day of July 2005, in the City of Makati, Philippines, a place within Appellant testified that on July 19, 2005, at around 2 p.m., he was in his house with his wife
the jurisdiction of this Honorable Court, the abovenamed accused, not lawfully authorized to and child when he was roused from sleep by a man armed with a gun. Several other armed
possess or otherwise use any dangerous drug and without the corresponding license or men entered his house. He was told that a buy-bust operation was being conducted. They
searched his house then appellant was made to board a vehicle where he was showed a plastic WHEREFORE, the appeal is DENIED. The December 18, 2007 Decision of the Regional
sachet containing white crystalline substance that he believed to be shabu. He struggled to free Trial Court of the City of Makati, Branch 65 is hereby AFFIRMED.
himself and denied ownership thereof but his actions were futile. He was taken
to Barangay Olympia, Makati City, where he was detained for 30 minutes, then brought to the SO ORDERED.15
crime laboratory for drug testing.10
Assignment of Errors
Defense witness Fancy Dela Cruz corroborated the testimony of appellant. She averred that at
around 1:30 p.m. of July 19, 2005, two vehicles parked almost in front of her. Several men
alighted from the vehicles and forced open the door of appellant’s house. She inquired as to Still unable to accept his conviction, appellant is now before us raising the same interrelated
their intentions but was told not to intervene and to avoid involvement. She complied but errors he assigned before the CA, viz:
heard one of the men telling appellant to get up and put on his clothes. The men then had
appellant board one of the vehicles and sped away. She looked for appellant’s wife and I
informed her of the incident.11
THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-
Ruling of the Regional Trial Court APPELLANT DESPITE NON-COMPLIANCE WITH THE REQUIREMENTS FOR THE
PROPER CUSTODY OF SEIZED DANGEROUS DRUGS UNDER R.A. NO. 9165.
The RTC gave credence to the testimony of the prosecution witnesses on the events that
transpired prior to and during the buy-bust operation. It rendered a verdict of conviction on II
December 18, 2007,12 viz:
THE TRIAL COURT GRAVELY ERRED IN GIVING CREDENCE TO THE
WHEREFORE, in view of the foregoing, judgment is hereby rendered as follows: PROSECUTION’S EVIDENCE NOTWIT[H]STANDING THE FAILURE OF THE
A[P]PREHENDING TEAM TO PROVE [THE] INTEGRITY OF THE SEIZED DRUGS. 16
1. In Criminal Case No. 05-1396, the Court finds accused JAY MONTEVIRGEN y
OZARAGA, GUILTY beyond reasonable doubt of the charge for violation of Sec. In his joint discussion of these errors, appellant contends that the police officers involved in
5, Art. II, RA 9165, and sentences him to suffer LIFE imprisonment and to pay a the buy-bust operation failed to observe the proper procedure in the custody and control of the
fine of FIVE Hundred Thousand (₱500,000.00) pesos; seized drug by not marking the confiscated specimens in the manner mandated by law. He
claims that the arresting team did not immediately conduct a physical inventory of the seized
2. In Criminal Case No. 05-1397, the Court finds accused JAY MONTEVIRGEN y items and photograph the same in the presence of his representative or counsel, representative
OZARAGA, GUILTY beyond reasonable doubt of the charge for violation of Sec. from media, Department of Justice, and any elected public officials pursuant to Section 21 of
11, Art. II, RA 9165 and sentences him to suffer the penalty of imprisonment of the Implementing Rules and Regulations of RA 9165. He also argues that the Certificate of
Twelve (12) years and one (1) day as minimum to Twenty (20) years as maximum Coordination has no weight in evidence and cannot be used to prove the legitimacy of the buy-
and to pay a fine of Three Hundred Thousand (₱300,000.00); bust operation since it was issued for the failed entrapment operation the previous day, July
18, 2005.
The period of detention of the accused should be given full credit.
Appellee, through the Office of the Solicitor General argues that the prosecution sufficiently
established all the elements of illegal sale and possession of shabu against appellant. It asserts
Let the dangerous drug subject matter of these cases be disposed of in the manner provided for that the integrity and evidentiary value of the shabu seized from appellant were properly
by law. preserved by the arresting team.

SO ORDERED.13 Our Ruling

Ruling of the Court of Appeals The appeal is unmeritorious.

On appeal, the CA concurred with the RTC’s findings and conclusions and, consequently, Elements for the Prosecution of Illegal
affirmed its judgment in the assailed Decision14 of July 31, 2009. The dispositive portion of Sale and Possession of Shabu.
CA’s Decision reads:
In every prosecution for the illegal sale of shabu, under Section 5, Article II of RA 9165, the
following elements must be proved: "(1) the identity of the buyer and the seller, the object and
the consideration; and (2) the delivery of the thing sold and the payment therefor. x x x What police station or at the nearest office of the apprehending officer/team, whichever is
is material in a prosecution for illegal sale of dangerous drugs is the proof that the transaction practicable, in case of warrantless seizures; Provided further, that non-compliance with these
or sale actually took place, coupled with the presentation in court of the corpus delicti"17 or the requirements under justifiable grounds, as long as the integrity and the evidentiary value of the
illicit drug in evidence. On the other hand, in prosecuting a case for illegal possession of seized items are properly preserved by the apprehending officer/team, shall not render void
dangerous drugs under Section 11, Article II of the same law, the following elements must and invalid such seizures of and custody over said items.
concur: "(1) the accused is in possession of an item or object, which is identified as a
prohibited drug; (2) such possession is not authorized by law; and (3) the accused freely and In other words, the failure of the prosecution to show that the police officers conducted the
consciously possessed the drug.18 required physical inventory and take photograph of the objects confiscated does not ipso
facto render inadmissible in evidence the items seized. There is a proviso in the implementing
In this case, all the elements for the illegal sale of shabu were established. PO3 Ruiz, the rules stating that when it is shown that there exist justifiable grounds and proof that the
poseur-buyer, positively identified appellant as the person he caught in flagrante integrity and evidentiary value of the evidence have been preserved, the seized items can still
delicto selling a white crystalline substance believed to be shabu in the entrapment operation be used in determining the guilt or innocence of the accused. 21
conducted by the police and MADAC operatives. Upon receipt of the ₱200.00 buy-bust
money, appellant handed to PO3 Ruiz the sachet containing 0.04 gram of white crystalline Here, the absence of evidence that the buy-bust team made an inventory and took photographs
substance which later tested positive for shabu. "The delivery of the contraband to the poseur- of the drugs seized from appellant was not fatal since the prosecution was able to preserve the
buyer and the receipt by the seller of the marked money successfully consummated the buy- integrity and evidentiary value of the shabu. PO3 Ruiz, the poseur-buyer and apprehending
bust transaction x x x."19 officer, marked the seized items in front of appellant, the barangay captain and other members
of the buy-bust team, immediately after the consummation of the drug transaction. He then
All the elements in the prosecution for illegal possession of dangerous drugs were also delivered the seized items to the duty investigator, who in turn sent the same to the PNP Crime
established. First, the two plastic sachets containing shabu subject of the case for the illegal Laboratory for examination on the same day. During trial, PO3 Ruiz was able to identify the
possession of drugs were found in appellant’s pocket after a search on his person was made said markings and explain how they were made.
following his arrest in flagrante delicto for the illegal sale of shabu. It must be remembered
that a person lawfully arrested may be searched for anything which may have been used or Clearly, there was no hiatus or confusion in the confiscation, handling, custody and
constitute proof in the commission of an offense without a warrant. 20 Second, appellant did not examination of the shabu.1âwphi1 The illegal drugs that were confiscated from appellant,
adduce evidence showing his legal authority to possess the shabu. Third, appellant’s act of taken to the police headquarters, subjected to qualitative examination at the crime laboratory,
allowing the poseur-buyer to choose one from among the three sachets and putting back into and finally introduced in evidence against appellant were the same illegal drugs that were
his pocket the two sachets of shabu not chosen clearly shows that he freely and consciously confiscated from him when he was caught in flagrante delicto selling and possessing the
possessed the illegal drugs. Hence, appellant was correctly charged and convicted for illegal same.
possession of shabu.
Appellant’s contention that the buy-bust team should have coordinated with the PDEA on the
Appellant’s defense of denial cannot prevail against the positive testimony of prosecution day the entrapment operation occurred deserves scant consideration. Coordination with the
witnesses. There is also no imputation by appellant of any evil motives on the part of the buy- PDEA is not an indispensable element of a proper buy-bust operation. 22 A buy-bust operation
bust team to falsely testify against him. Their testimonies and actuations therefore enjoy the is not invalidated by mere noncoordination with the PDEA. 23
presumption of regularity.
Penalty
Failure to Physically Inventory and
Photograph the Shabu After Seizure
and Confiscation is Not Fatal. Under Section 5, Article II of RA 9165, the penalty for the unauthorized sale of shabu,
regardless of its quantity and purity, is life imprisonment to death and a fine ranging from
₱500,000.00 to ₱10 million. Since the penalty imposed by the RTC and affirmed by the CA is
Appellant draws attention to the failure of the apprehending police officers to comply with within the prescribed range, we affirm the lower courts’ imposition of life imprisonment as
Section 21(a), Article II of the Implementing Rules and Regulations of RA 9165 regarding the well as the payment of fine of ₱500,000.00.
physical inventory and photograph of the seized items. This provision reads as follows:
On the other hand, Section 11(3), Article II of the same law provides that illegal possession of
(1) The apprehending officer/team having initial custody and control of the drugs shall, less than five grams of shabu is penalized with imprisonment of twelve (12) years and one (1)
immediately after seizure and confiscation, physically inventory and photograph the same in day to twenty (20) years plus a fine ranging from ₱300,000.00 to ₱400,000.00.
the presence of the accused or the person/s from whom such items were confiscated and/or
seized, or his/her representative or counsel, a representative from the media and the
Department of Justice (DOJ), and any elected public official who shall be required to sign the Appellant was found guilty of selling one sachet containing 0.04 gram of shabu and of
copies of the inventory and be given a copy thereof; Provided, that the physical inventory and possessing two other sachets of the same substance with a total weight of 0.14 gram. Hence,
photograph shall be conducted at the place where the search warrant is served; or at the nearest applying the above provisions, the penalty of imprisonment of twelve (12) years and one (1)
day as minimum to twenty (20) years as maximum and the payment of fine of ₱300,000.00
imposed by the RTC and affirmed by the CA are also proper.

WHEREFORE, the appeal is DISMISSED. The assailed Decision dated July 31, 2009 of the
Court of Appeals in CA-G.R. CR-H.C. No. 03208 affirming the conviction of Jay
Montevirgen y Ozaraga by the Regional Trial Court of Makati City, Branch 65, for violation
of Sections 5 and 11, Article II of Republic Act No. 9165, is AFFIRMED.

SO ORDERED.

MARIANO C. DEL CASTILLO