THIRD DIVISION
Methamphetamine Hydrochloride, a dangerous drug. 6
[G.R. No. 223142. January 17, 2018.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROLANDO
SANTOS y ZARAGOZA, accused-appellant.
DECISION
MARTIRES, J p:
This resolves the appeal of accused-appellant Rolando Santos y
Zaragoza (Santos) seeking the reversal and setting aside of the 6
August 2014 Decision 1 and 2 March 2015 Resolution 2 of the Court
of Appeals, Fourth Division (CA) in C.A.-G.R. CR-HC No. 05851,
affirming the Decision 3 of the Regional Trial Court (RTC), Branch
120, Caloocan City, in Criminal Case Nos. C-82010 and C-82011
finding him guilty of Illegal Possession of Dangerous Drugs and
Illegal Possession of Drug Paraphernalia under Republic Act (R.A.)
No. 9165, respectively.
THE FACTS
Accused-appellant Santos was charged before the RTC of Caloocan
City with three (3) counts of violation of certain provisions of R.A. No.
9165, viz.:
Crim. Case No. C-82009
(Violation of Sec. 6, Art. II of R.A. No. 9165)
That on or about the 21st day of August, 2009 in Caloocan City,
Metro Manila and within the jurisdiction of this Honorable Court, the
above-named accused, without authority of law, did then and there
willfully, unlawfully, and feloniously maintain in his house at 21
Tagaytay St., Caloocan City, a drug den, dive or resort where
dangerous drugs are habitually dispensed for use by the customers
and addicts. 4
Crim. Case No. C-82010
(Violation of Sec. 11, Art. II of R.A. No. 9165)
That on or about the 21st day of August, 2009 in Caloocan City,
Metro Manila and within the jurisdiction of this Honorable Court, the
above-named accused, without being authorized by law, did then
and there willfully, unlawfully and feloniously have in his possession,
custody, and control dried crushed leaves and seeds wrapped in a
newsprint and contained in transparent plastic "tea bag" marked
"ELS-21-8-09-06" weighing 1.0022 grams, when subjected for
laboratory examination gave positive result to the tests for
Marijuana, a dangerous drug. 5
Crim. Case No. C-82011
(Violation of Sec. 12, Art. II of R.A. No. 9165)
That on or about the 21st day of August, 2009 in Caloocan City,
Metro Manila and within the jurisdiction of this Honorable Court, the
above-named accused, without being authorized by law, did then
and there willfully, unlawfully, and feloniously have in his possession,
custody, and control several strips of used aluminum foil in a
transparent plastic bag, several pieces of used plastic sachet in a
transparent "tea bag," and a plastic tube intended for sniffing
In relation to Criminal Case No. C-82009 where Santos was charged
for maintaining a drug den, Imee Baltazar Loquinario-Flores
(Loquinario-Flores) who was found inside the house of Santos during
the service of the search warrant, was charged with violation of Sec.
7, Art. II of R.A. No. 9165. 7
When arraigned, both Santos and Loquinario-Flores pleaded not
guilty. 8 Joint trial of the cases thereafter ensued.
Version of the Prosecution
The prosecution tried to prove its cases against Santos through the
testimony of Special Investigator Elson Saul (Saul), Agents Jerome
Bomediano (Bomediano), Henry Kanapi (Kanapi) and Atty. Fatima
Liwalug (Atty. Liwalug), all from the Reaction, Arrest and Interdiction
Division (RAID) of the National Bureau of Investigation (NBI), and
Nicanor Cruz, Jr. (Cruz), of the NBI Forensic Chemistry Division
(FCD). AaCTcI
Prior to the application on 20 August 2009 by Atty. Liwalug for a
search warrant before the RTC, Manila, the RAID-NBI received
information from their confidential informant that there was a group
of individuals at Tagaytay St., Caloocan City, selling drugs and
using minors as runners. After Atty. Liwalug interviewed the
informant, she, along with an NBI team and the technical staff of
Imbestigador, a GMA Channel 7 investigative program, went to the
reported area to conduct surveillance. The actual surveillance, where
videos were taken of the buying, selling, and use of drugs in the
different houses on Tagaytay St., lasted for two weeks. During the
first test-buy, Bomediano was able to buy shabu from Santos alias
"Rolando Tabo." Two informants were used by the NBI for the
surveillance but the spy camera was attached to only one of them.
The informants were able to buy drugs from Santos and to use them
inside his house. 9
The first video, 10 taken by the staff of Imbestigador, showed the
informants going inside a makeshift house on Tagaytay St. which,
according to one of the informants, was owned by Santos. He was
shown standing in front of a table while preparing the
paraphernalia to sniff shabu. Also shown in the video was Jenny
Coyocot, the adopted daughter of Santos, who, according to the
informant, sold foil for the price of P2.00 per strip. The second video
11 depicted Erwin Ganata Ayon telling Jack, one of the occupants
in Santos' house, "pasok kami sa bahay ni Tabo." 12 The videos were
turned over by Mean de Chavez of Imbestigador to Atty. Liwalug.
13
On 21 August 2009, Kanapi, Saul, Bomediano, and SI Junnel
Malaluan, armed with a search warrant, 14 proceeded to the house
of Santos on Tagaytay St. Kanapi and Malaluan guarded the
perimeter of Santos' house to ensure that no one could exit from or
enter the house during the service of the search warrant. Previous to
the service of the warrant, the NBI RAID coordinated 15 with the
Department of Justice (DOJ), the officials of the barangay, and the
media. 16
Saul knocked on the door of Santos' house. When nobody answered
despite several minutes of waiting, the NBI team broke open the
door. Saul, Bomediano, Malaluan, and the Imbestigator team
proceeded to the second floor where they found a person who
identified himself as Rolando Santos. Saul told Santos that the team
was from the NBI and that they were to serve a search warrant on
him, which copy was actually shown to Santos. The team waited for
the representatives from the DOJ and the barangay before
conducting the search. 17 SDAaTC
During the conduct of the search at the living room on the second
floor of the house, Saul found inside the bedroom and beside the
bed of Santos several used and unused foil strips either crumpled or
rolled, the size of a cigarette stick. The foil strips, 18 numbering
fourteen, were found inside a baby powder container. 19 He also
found unused small plastic sachets. 20 Saul placed the foil and
plastic sachets on the center table in the living room. When Saul
frisked Santos, he found marijuana leaves wrapped in paper on the
right pocket of his pants. Saul informed Santos of his constitutional
rights and placed the marijuana leaves on top of the center table.
Saul searched the rooms on the second floor but found nothing. From
a trash can in the kitchen, Saul found used small transparent sachets
which he also placed on the center table. Loquinario-Flores, who was
caught on video selling to the informant aluminum foil to be used
with drugs, and two minor children were found on the first floor of
the house. The children admitted that they were part of a gang in
the area. 21
Santos, Assistant City Prosecutor Darwin Cañete, Kagawad Magno
Flores, and media representative Eugene Lalaan of Imbestigador
witnessed the inventory 22 of the seized items by Saul and when he
marked them. Santos, Loquinario-Flores, and the two minors were
brought to the NBI office. When Saul returned to the NBI office after
the operation, he submitted the seized items to the NBI forensic
chemist. A joint affidavit of arrest 23 was thereafter executed by
Saul, Malaluan, Bomediano, and Kanapi. 24
The testimony of Cruz, the forensic chemist, was dispensed with after
the parties agreed to stipulate on the matters he would testify and
after a short cross-examination by the defense.
Version of the Defense
The version of the defense was established through the testimony of
Loquinario-Flores, Santos, and Renamel Destriza (Destriza).
On 21 August 2009 at about 3:00 p.m., while Santos was alone at
home playing his guitar, the NBI team armed with long firearms
suddenly arrived looking for a certain Roland Tabo. Santos was
made to lie face down and thereafter was frisked. The team took
Santos' money amounting to P140.00 and his house was searched in
the presence of a kagawad from Quezon City but the search team
found nothing. As a result, the team brought out foil, lighters, and
marijuana and took pictures. Loquinario-Flores was inside the house
that time as she was called by Destriza to help bring down from the
second floor an elderly who was hit by the door when the NBI team
forcibly opened it. Loquinario-Flores was no longer allowed to leave
while Destriza, who was carrying a child that time, was allowed to
go out of the house. Santos, Loquinario-Flores, and the other persons
arrested were brought to the NBI office. It was only during the
inquest held the following day that Santos was informed that he was
being charged of violating the provisions of R.A. No. 9165 and
allowed to see the items allegedly seized from him. 25
The Ruling of the RTC
The RTC 26 ruled that the entry in the house of Santos by the NBI
team and the subsequent confiscation of the paraphernalia and
marijuana were valid and legal since the team had a search
warrant. Moreover, it held that the search was conducted following
proper procedure. Thus, the RTC resolved the cases as follows:
Premises considered, this court finds and so holds the accused
Rolando Santos y Zaragoza GUILTY beyond reasonable doubt for
violation of Sections 6, 11 and 12, Article II of Republic Act No.
9165, otherwise known as the Comprehensive Dangerous Drugs Act
of 2002 and imposes upon him the following:
(1) In Crim. Case No. C-82009, the penalty of Life
Imprisonment and a fine of Five Hundred Thousand Pesos
(P500,000.00);
(2) In Crim. Case No. C-82010, the penalty of Imprisonment of
twelve (12) years and one (1) day to Fourteen (14) years and a fine
of Three Hundred Thousand Pesos (P300,000.00); and
(3) In Crim. Case No. C-82011, the penalty of Imprisonment of
six (6) months and one (1) day to four (4) years and a fine of Ten
Thousand Pesos (P10,000.00).
Further, in Crim. Case No. C-82012, accused Imee Baltazar
Loquinario-Flores was likewise found GUILTY beyond reasonable
doubt for violation of Section 7 of the above-cited law and imposes
upon her the penalty of imprisonment of twelve (12) years and one
(1) day to fourteen (14) years and a fine of Three Hundred
Thousand Pesos (P300,000.00). AIDSTE
The drugs and drug paraphernalia subject matter of these cases are
hereby confiscated and forfeited in favor of the government to be
dealt with in accordance with law.
SO ORDERED.
The Ruling of the CA
Feeling aggrieved with the decision of the RTC, Santos appealed
before the Court of Appeals.
In Criminal Case No. C-82009, the CA, Fourth Division 27 ruled that
the RTC should not have given much weight to the video footages
because these were not identified and authenticated by the
confidential informant who took them. It held that the prosecution
failed to present any witness who had personal knowledge and who
could have testified that Santos' house was a drug den. The team,
on the other hand, failed to show that Santos or any other person
was committing illegal activities inside the house. It found that the
testimony of the confidential informant was essential and
indispensable for the conviction of Santos because the NBI agents
did not have any personal knowledge as to the alleged illegal
activities in the house that would characterize it as a drug den. 28
In Criminal Case No. C-82012, because of its ruling that the
prosecution failed to establish that Santos was maintaining a drug
den, the CA held that it necessarily followed that Loquinario-Flores,
pursuant to Sec. 11 (a), Rule 122 29 of the Rules of Court, must be
exonerated of the charge against her for violating Sec. 7, Art. II of
R.A. 9165. Despite the fact that Loquinario-Flores did not appeal,
the CA relied on the dictum that everything in an appealed case is
open for review by the appellate court. 30
In Criminal Case Nos. C-82010 and C-82011, the CA held that the
prosecution was able to show the guilt of Santos beyond reasonable
doubt. It held that the testimony of Saul was straightforward and
that there was no proof that he had ill motive to testify against
Santos. On the other hand, it found the defense of frame-up put up
by Santos was self-serving which failed to rebut the overwhelming
evidence presented by the prosecution; and that the alleged
inconsistencies in the testimonies of Kanapi and Bomediano were on
trivial and immaterial details that do not affect their credibility. 31
Hence, the appeal of Santos was decided as follows:
WHEREFORE, the appeal is PARTIALLY GRANTED. The Decision
dated 26 September 2012 of the lower court is MODIFIED as
follows:
1. The judgment in Criminal Case No. C-82010 finding the
appellant Rolando Santos y Zaragoza guilty beyond reasonable
doubt of the crime of Illegal Possession of Dangerous Drugs under
Section 11, Article II of RA 9165 is hereby AFFIRMED;
2. The judgment in Criminal Case No. C-82011 finding the
appellant Rolando Santos y Zaragoza guilty beyond reasonable
doubt of the crime of Illegal Possession of Drug Paraphernalia under
Section 12, Article II of RA 9165 is hereby AFFIRMED;
3. The judgment in Criminal Case No. C-82009 finding the
appellant Rolando Santos y Zaragoza guilty beyond reasonable
doubt of the crime of maintaining a Drug Den under Section 6, Article
II of RA 9165 is REVERSED and SET ASIDE. Appellant Rolando Santos
y Zaragoza is hereby ACQUITTED in Criminal Case No. C-82009
for insufficiency of evidence.
4. The judgment in Criminal Case No. C-82012 finding the
accused Imee Baltazar Loquinario-Flores guilty beyond reasonable
doubt of the crime of Visiting a Drug Den under Section 7, Article II
of RA 9165 is likewise REVERSED and SET ASIDE. She is hereby
ACQUITTED in Criminal Case No. C-82012 for insufficiency of
evidence. TIADCc
SO ORDERED.
Santos sought for a partial reconsideration 32 of the decision of the
CA insofar as it affirmed his conviction in Crim. Case Nos. C-82010
and C-82011. Finding no persuasive grounds or substantial bases to
reconsider, however, the CA denied the motion. 33
ISSUES
I.
THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-
APPELLANT DESPITE THE PROSECUTION'S FAILURE TO PROVE HIS
GUILT BEYOND REASONABLE DOUBT.
II.
THE TRIAL COURT GRAVELY ERRED IN GIVING FULL WEIGHT AND
CREDENCE TO THE PROSECUTION'S EVIDENCE
NOTWITHSTANDING ITS FAILURE TO PROVE THE INTEGRITY AND
IDENTITY OF THE ALLEGED CONFISCATED DRUGS.
OUR RULING
The appeal is without merit.
It bears to stress that while an accused in a criminal case is presumed
innocent until proven guilty, the evidence of the prosecution must
stand on its own strength and not rely on the weakness of the
evidence of the defense. 34 The Court firmly holds that the
prosecution was able to successfully discharge its burden of
overcoming the constitutional presumption of innocence of Santos
and in proving his guilt beyond reasonable doubt in Crim. Case Nos.
C-82010 and C-82011.
The findings of the trial
court and the appellate
court as to the credibility
of the prosecution
witnesses are binding
and conclusive upon the
Court.
Santos claimed that the testimonies of the prosecution witnesses were
indecisive, conflicting, and contradictory; as opposed to the version
of the defense which was consistent, straightforward, and
complementary with each other.
To justify his claim, Santos averred that when Saul first testified he
stated that the second floor of the house had a living room, kitchen,
and two rooms. It was when Saul allegedly frisked Santos that he
found several used and unused aluminum foil and a sachet of
marijuana, but nothing was found inside the two rooms. When Saul
was again put on the witness stand, he allegedly admitted that the
five disposable lighters and the strips of aluminum foil were found
inside Santos' bedroom.
Contrary to the claim of Santos, the testimonies of Saul were not
inconsistent with each other. When first put on the stand, Saul
admitted that he found the strips of aluminum foil in the living room;
and that when he frisked Santos he found in the right pocket of his
pants the marijuana leaves wrapped in paper. 37 Clearly, Saul was
forthright in stating where he found the used and unused aluminum
foil and the marijuana. Saul never claimed that the strips of aluminum
foil were found on the body of Santos.
When Saul testified again, he described in detail that the strips of
aluminum foil were found inside a plastic baby powder container.
38 Although Saul claimed that he found these in the bedroom of
Santos, the Court took note of the fact that in most houses in urban
areas, the living room is also used as the bedroom. What is
important is that Saul was consistent that he found the strips of
aluminum foil on the second floor of the house where the living room
and bedroom were located.
It must be emphasized that the finding of illicit drugs and
paraphernalia in a house or building owned or occupied by a
particular person raises the presumption of knowledge and
possession thereof which, standing alone, is sufficient to convict. 39
The truth that the strips of aluminum foil were found in the house of
Santos and the marijuana in his body, had not been successfully
controverted by him. In fact, there was but the lame defense of
frame-up offered by Santos to overcome the presumption.
Enlightening at this point is the jurisprudence in People v. Lagman,
40 viz.:
It held that illegal possession of regulated drugs is mala prohibita,
and, as such, criminal intent is not an essential element. However, the
prosecution must prove that the accused had the intent to possess
(animus posidendi) the drugs. Possession, under the law, includes not
only actual possession, but also constructive possession. Actual
possession exists when the drug is in the immediate possession or
control of the accused. On the other hand, constructive possession
exists when the drug is under the dominion and control of the accused
or when he has the right to exercise dominion and control over the
place where it is found. Exclusive possession or control is not
necessary. The accused cannot avoid conviction if his right to exercise
control and dominion over the place where the contraband is
located, is shared with another.
The contention of Santos that the members of the raiding team gave
an altogether different account as to who actually witnessed the
implementation of the search warrant, 42 is a trivial and
inconsequential matter that does not affect the credibility of the
prosecution witnesses. These matters do not deal with the central fact
of the crime. Besides, it has been held, time and again, that minor
inconsistencies and contradictions in the declarations of witnesses do
not destroy the witnesses' credibility but even enhance their
truthfulness as they erase any suspicion of a rehearsed testimony.
In stark contrast, the defense of denial proffered by Santos cannot
prevail over the positive identification by the prosecution witnesses.
A defense of denial which is unsupported and unsubstantiated by
clear and convincing evidence becomes negative and self-serving
deserving no weight in law, and cannot be given greater evidentiary
value over convincing, straightforward, and probable testimony on
affirmative matters. Courts generally view the defense of denial
with disfavor due to the facility with which an accused can concoct it
to suit his or her defense. 45
Equally important is that it is the general rule that "the factual
findings of the trial court, its calibration of the testimonies of the
witnesses, and its assessment of the probative weight thereof, as well
as its conclusions on the credibility of the witnesses on which said
findings were anchored are accorded great respect. This great
respect rests in the trial court's first-hand access to the evidence
presented during the trial, and in its direct observation of the
witnesses and their demeanor while they testify on the occurrences
and events attested to." 46 Settled also is the rule that factual
findings of the appellate court affirming those of the trial court are
binding on this Court, unless there is a clear showing that such findings
are tainted with arbitrariness, capriciousness, or palpable error. 47
Let it be underscored that appeal in criminal cases throws the whole
case open for review and it is the duty of the appellate court to
correct, cite, and appreciate errors in the appealed judgment
whether they are assigned or unassigned. 48 The Court had
assiduously reviewed the records but found nothing to qualify these
cases as falling within the exception to the general rule.
Santos asserted that the search warrant was only for an
undetermined amount of shabu; thus, the discovery of the
incriminating items other than that described in the warrant must
result from bodily search or seized in plain view to be admissible in
evidence.
The assertion of Santos has no merit considering that he did not
question the admissibility of the seized items as evidence against him
during the trial of these cases. It was only when he appealed the
decision of the RTC before the CA that he raised the issue as to the
admissibility of the seized items. Well-entrenched in our
jurisprudence is that no question will be entertained on appeal unless
it has been raised in the lower court. 50
There was an unbroken
chain in the custody of
the seized drugs and
paraphernalia.
It was the position of Santos that there was doubt as to the whether
the marijuana and paraphernalia seized from him were the very
same objects offered in court as corpus delicti. He claimed that there
was no explanation given regarding the items confiscated from
Santos from the time these were seized until their turnover for
laboratory examination. 51
"Corpus delicti is the 'actual commission by someone of the particular
crime charged.' In illegal drug cases, it refers to the illegal drug item
itself." 52
The Dangerous Drugs Board (DDB) — the policy making and
strategy formulating body in the planning and formulation of
policies and programs on drug prevention and control tasked to
develop and adopt a comprehensive, integrated, unified, and
balanced national drug abuse prevention and control strategy 53
— has expressly defined chain of custody involving dangerous drugs
and other substances in the following terms in Sec. 1 (b) of DDB
Regulation No. 1, Series of 2002, 54 to wit:
b. "Chain of Custody" means the duly recorded authorized
movements and custody of seized drugs or controlled chemicals or
plant sources of dangerous drugs or laboratory equipment of each
stage, from the time of seizure/confiscation to receipt in the forensic
laboratory to safekeeping to presentation in court for destruction.
Such record of movements and custody of seized item shall include
the identity and signature of the person who held temporary custody
of the seized item, the date and time when such transfer of custody
were made in the course of safekeeping and use in court as
evidence, and the final disposition. 55 aDSIHc
The exacting requirement as to the chain of custody of seized drugs
and paraphernalia is highlighted in R.A. No. 9165 as follows:
Section 21. Custody and Disposition of Confiscated, Seized,
and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous
Drugs. Controlled Precursors and Essential Chemicals,
Instruments/Paraphernalia and/or Laboratory Equipment. — The
PDEA shall take charge and have custody of all dangerous drugs,
plant sources of dangerous drugs, controlled precursors and
essential chemicals, as well as instruments/paraphernalia and/or
laboratory equipment so confiscated, seized and/or surrendered,
for proper disposition in the following manner:
(1) The apprehending team having initial custody and control
of the drugs shall, immediately after seizure and confiscation,
physically inventory and photograph the same in 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
copies of the inventory and be given a copy thereof; HEITAD
On the one hand, the Implementing Rules and Regulations (IRR)
settles the proper procedure to be followed in Sec. 21 (a) of R.A.
No. 9165, viz.:
(a) The apprehending office/team having initial custody and
control of the drugs shall, immediately after seizure and confiscation,
physically inventory and photograph the same in 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
copies of the inventory and be given a copy thereof: Provided, that
the physical inventory and photograph shall be conducted at the
place where the search warrant is served; or at the nearest police
station or at the nearest office of the apprehending officer/team,
whichever is practicable, in case of warrantless seizures; Provided,
further that non-compliance with these requirement" under justifiable
grounds, as long as the integrity and the evidentiary value of the
seized items are properly preserved by the apprehending
officer/team, shall not render void and invalid such seizures of and
custody over said items.
The Court has explained in a catena of cases the four (4) links that
should be established in the chain of custody of the confiscated item:
first, the seizure and marking, if practicable, of the illegal drug
recovered from the accused by the apprehending officer; second,
the turnover of the illegal drug seized by the apprehending officer
to the investigating officer; third, the turnover by the investigating
officer of the illegal drug to the forensic chemist for laboratory
examination; and fourth, the turnover and submission of the marked
illegal drug seized from the forensic chemist to the court. 56
On the first link, jurisprudence dictates that "'(M)arking' is the placing
by the apprehending officer of some distinguishing signs with his/her
initials and signature on the items seized. It helps ensure that the
dangerous drugs seized upon apprehension are the same dangerous
drugs subjected to inventory and photography when these activities
are undertaken at the police station or at some other practicable
venue rather than at the place of arrest. Consistency with the 'chain
of custody' rule requires that the 'marking' of the seized items — to
truly ensure that they are the same items that enter the chain and
are eventually the ones offered in evidence — should be done (1)
in the presence of the apprehended violator and (2) immediately
upon confiscation." 57 DETACa
Saul testified that after he gathered the drug paraphernalia and
the marijuana which he confiscated from Santos, he prepared the
inventory of seized items/property 58 in the presence of Santos,
and the respective representatives of the DOJ, media, and the
barangay. In addition to the inventory, he marked the confiscated
items as follows:
1. five (5) pieces of disposable lighters "ELS-21-8-09"
2. several pieces or strips of unused aluminum foil "ELS-21-8-
09-01"
3. several pieces/strips of used aluminum foil "ELS-21-8-09-
02"
4. several pieces unused small plastic sachet "ELS-21-8-09-
03"
5. several pieces used small plastic sachet "ELS-21-8-09-04"
6. one (1) improvised plastic pipe "ELS-21-8-09-05"
7. undetermined amount of marijuana leaves and seed
wrapped in newspaper "ELS-21-8-09-06"
Anent the second and third links, on the same day that Saul arrived
at the NBI RAID office after the service of the search warrant, he
forthwith prepared the disposition form 59 for the turnover of the
seized items to the FCD. The seized items were received by the FCD
on 21 August 2009 at 11:05 p.m. A certification 60 dated 21 August
2009 was likewise issued by the FCD confirming that the confiscated
items marked as "ELS-21-8-09-02," "ELS-21-8-09-04," and "ELS-
21-8-09-05" yielded positive results for the presence of
methamphetamine hydrochloride, and positive results for marijuana
for "ELS-21-8-09-06." On 25 August 2009, the FCD released its
Dangerous Drugs Report Nos. DDM-09-08 61 and DD-09-47.
On the fourth link, the testimony of Cruz was dispensed with after
the parties had agreed to stipulate on the following facts:
That he is an expert witness, and as such is of the receipt of a letter
request dated 21 August 2009;
That attached to the letter request were several pieces/strips of
used aluminum foil marked as ELS-21-8-09-02; several pieces of
used small plastic sachet marked as ELS-21-8-09-04; one (1)
improvised plastic pipe marked as ELS-21-8-09-05, and
undetermined amount of marijuana leaves and seed wrapped in a
newspaper marked as ELS-21-8-09-06;
That he conducted laboratory examination on the specimen
submitted to their office, the result of which he reduced into writing
as evidenced by Dangerous Drugs Report No. DDM-09-08, stating
that upon examination conducted on the dried crushed leaves and
seeds wrapped in a newsprint gave positive results for "marijuana"
and by Dangerous Drugs Report No. DDM-09-47, stating that upon
examinations conducted on the several strips of used aluminum foil
in a transparent plastic bag; several pieces of used plastic sachets
in a transparent "tea bag" and a plastic sachet tube gave positive
results for the presence of Methamphetamine Hydrochloride,
respectively;
That he issued a Certification dated 21 August 2009 to the effect
that he conducted examination upon the above-mentioned specimen
submitted to their office.
As opposed therefore, to the claim of Santos, there was no
significant gap in the chain of custody of the seized items. Moreover,
the assertion of Santos that the forensic chemist did not testify to
explain the measures undertaken to preserve the integrity and
identity of the substance examined until their presentation in court,
64 has no merit. As earlier mentioned, both the prosecution and the
defense had agreed to dispense with the testimony of the forensic
chemist upon stipulation on certain facts. Moreover, the defense
counsel had the opportunity to cross-examine the forensic chemist
but, as revealed by the records, his cross-examination never dealt
on matters pertaining to the measures carried out by the NBI team
to maintain the integrity of the confiscated items.
In the same vein, it needs to be stressed that Cruz is a public officer;
thus, his reports carried the presumption of regularity. Besides, Sec.
44, Rule 130 of the Revised Rules of Court provides that entries in
official records made in the performance of his duty by a public
officer of the Philippines, or by a person in the performance of a
duty specifically enjoined by law, are prima facie evidence of the
facts therein stated. 65 It necessarily follows that the findings of Cruz
as contained in Dangerous Drugs Report Nos. DDM-09-08 and
DDM-09-47 were conclusive in view of the failure of the defense to
present evidence showing the contrary.
Noteworthy, the legal teaching in our jurisprudence is that "the
integrity of the evidence is presumed to have been preserved unless
there is a showing of bad faith, ill will, or proof that the evidence
has been tampered with. Accused-appellant bears the burden of
showing that the evidence was tampered or meddled with in order
to overcome the presumption of regularity in the handling of exhibits
by public officers and the presumption that public officers properly
discharged their duties." 66 Santos had miserably failed in
presenting any evidence that would justify a finding that the NBI
team had ill motive in tampering with the evidence in order to hold
him liable for these grave offenses.
The prosecution was
able to fully discharge
its burden of proving
beyond reasonable doubt
its charges against
Santos.
In Crim. Case No. C-82010, Santos was charged with and convicted
of violation of Sec. 11, Art. II of R.A. No. 9165, 67 the elements of
which are as follows: (1) the accused is in possession of an item or
object, which is identified to be prohibited or regulated drug; (2)
such possession is not authorized by law; and (3) the accused freely
and consciously possessed the drug. 68
Saul testified that when he frisked Santos, he found marijuana in the
right pocket of his pants. Santos did not offer any explanation on
why he was in possession of the marijuana or if he was authorized
by law to possess the dangerous drug. Based on the Dangerous
Drugs Report No. DDM-09-08, the dried crushed leaves and seeds
wrapped in newspaper and contained in the transparent plastic tea
bag marked as "ELS-21-8-09-06" and which gave a positive result
for marijuana, had a net weight of 1.0022 grams. CAIHTE
Pursuant to Sec. 11, Art. II of R.A. No. 9165, the penalty of
imprisonment of twelve (12) years and one (1) day to twenty (20)
years, and a fine ranging from Three Hundred Thousand Pesos
(P300,000.00) to Four Hundred Thousand Pesos (P400,000.00),
shall be imposed if the quantity of marijuana is less than three
hundred (300) grams. Thus, the penalty of imprisonment of twelve
(12) years and one (1) day to fourteen (14) years, and a fine of
Three Hundred Thousand Pesos (P300,000.00) as imposed by the
RTC and affirmed by the CA, is hereby sustained.
In Crim. Case No. C-82011, Santos was convicted of violation of
Sec. 12, Art. II of R.A. No. 9165, 69 its elements being as follows:
(1) possession or control by the accused of any equipment,
apparatus or other paraphernalia fit or intended for smoking,
consuming, administering, injecting, ingesting, or introducing any
dangerous drug into the body; and (2) such possession is not
authorized by law. 70
Saul testified that when he served the search warrant on Santos at
his house on 21 August 2009, he found thereat several strips of used
aluminum foil in a transparent plastic bag, several pieces of used
plastic sachet in a transparent tea bag, and a plastic tube intended
for sniffing shabu, which he respectively marked "ELS-21-8-09-01,"
"ELS-21-8-09-04," and "ELS-21-8-09-05." Similar to the marijuana,
Santos failed to justify his possession of these items. Significantly,
Dangerous Drugs Report No. DD-09-47 showed that the
examination made on the washings of these confiscated items
yielded positive results for the presence of methamphetamine
hydrochloride.
Pursuant to Sec. 12, Art. 11 of R.A. No. 9165, the penalty of
imprisonment ranging from six (6) months and one (1) day to four
(4) years, and a fine ranging from Ten Thousand Pesos (P10,000.00)
to Fifty Thousand Pesos (P50,000.00) shall be imposed for violation
of this provision of the Act. Finding no error in the penalty of
imprisonment of six (6) months and one (1) day to four (4) years,
and a fine of Ten Thousand Pesos (P10,000.00) imposed by the RTC,
which was affirmed by the CA, the Court hereby maintains the
same. HTcADC
WHEREFORE, the appeal is DENIED. The 6 August 2014 Decision
and 2 March 2015 Resolution of the Court of Appeals, Fourth
Division in C.A.-G.R. CR-HC No. 05851 are hereby AFFIRMED.
SO ORDERED.
FIRST DIVISION
[G.R. No. 219175. December 14, 2017.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.
AMRODING MACUD y DIMAAMPAO, accused-appellant.
DECISION
DEL CASTILLO, J p:
Before the Court is the appeal 1 of accused Amroding Macud y
Dimaampao a.k.a. "Ambro" (Macud) seeking the reversal of the
Decision 2 dated July 31, 2014 of the Court of Appeals (CA) in CA-
G.R. CR-H.C. No. 06239. The CA affirmed the Judgment 3 dated
April 30, 2013 of the Regional Trial Court (RTC), Branch 164, Pasig
City in Criminal Case No. 17847-D. The RTC convicted Macud of
violating Section 5 of Republic Act (RA) No. 9165 or the
Comprehensive Dangerous Drugs Act of 2002, as
amended. HTcADC
The Facts
Through an Amended Information dated January 31, 2012, Macud
and his co-accused, Mohammad Khair M. Bayabao a.k.a. "Khalil"
(Bayabao), were charged with the offense of illegal sale of
dangerous drugs penalized under Section 5 of RA No. 9165,
allegedly committed in the following manner:
On or about January 10, 2012, in Pasig City, and within the
jurisdiction of this Honorable Court, the accused, conspiring and
confederating together, and both of them mutually helping and
aiding one another, and not being lawfully authorized to sell,
possess or otherwise use any dangerous drug, did then and there
willfully, unlawfully and feloniously sell, deliver and give away to
Police Officer Lorenzo S. Catarata, a police poseur-buyer, one (1)
heat-sealed transparent plastic sachet containing white crystalline
substance weighing eight (8) centigrams (0.08 gram) marked as
"CATS 1-10-12 with signature," which was found positive to the test
for methamphetamine hydrochloride (shabu), a dangerous drugs, in
violation of the said law.
Contrary to law. 4
Bayabao was not arrested and, to this day, remains at large.
During the arraignment, Macud (assisted by a lawyer from the Public
Attorney's Office) pleaded not guilty to the offense charged. 5 After
the pre-trial proceedings were conducted, trial on the merits ensued.
6 received from PO2 Francisco a Request for Laboratory Examination
The Prosecution's Evidence
The prosecution's case revolves around its claim that the charge
against Macud arose from a legitimate buy-bust operation. It
presented as its witnesses (1) Police Officer 2 Lorenzo S. Catarata
(PO2 Catarata), (2) Police Chief Inspector Lourdeliza G. Cejes (PCI
Cejes), (3) Police Officer 2 Jay Santos Francisco (PO2 Francisco),
and (4) Police Officer 2 Jeffrey Male (PO2 Male).
PO2 Catarata testified on the acts constituting the offense charged
and leading to the apprehension of Macud. He narrated that, at
about 6:00 p.m. of January 10, 2012, the Station Anti-Illegal Drugs
Special Operations Task Group (SAID-SOTG) of Pasig City, led by
Police Chief Inspector Joel Q. Quintero (PCI Quintero), held a
briefing for the conduct of a buy-bust operation at Vicper
Compound, Barangay Malinao, Pasig City. 7 The operation was
supposedly in response to confidential information received by the
SAID-SOTG that illegal drug activities were being done in the area.
A team was formed to conduct the operation, which included PO2
Catarata, PO2 Francisco, PO2 Male, and three other police officers.
8 PO2 Catarata was to act as the poseur-buyer and was given a
P500.00 bill on which he placed the mark "CATS," representing his
surname. 9 CAIHTE
Accompanied by their informant, the team proceeded to and
arrived at the Vicper Compound at about 8:20 p.m. of the same
day. As the other team members spread out and positioned
themselves, PO2 Catarata and the informant proceeded to the
house of one "Khalil" (later identified as the co-accused Bayabao).
When they approached the house, they saw Macud standing outside
of it and inquired if "Khalil" was inside because they wanted to buy
"tres" or P300.00 worth of shabu. In reply, Macud nodded and
asked for the money. PO2 Catarata then gave the marked P500.00
bill to Macud. After receiving the money, Macud went upstairs to the
second floor of the house where "Khalil" was. PO2 Catarata claimed
that he heard Macud and "Khalil" talking but did not understand
what they said as they were speaking in their vernacular. He then
saw Macud hand over to "Khalil" the P500.00 bill, and "Khalil" in
turn gave Macud a small plastic sachet. Macud thereafter went
downstairs and gave the plastic sachet to PO2 Catarata. It was at
this point that PO2 Catarata arrested Macud, introduced himself as
a police officer, and read Macud his rights. The other team members
tried to chase "Khalil" but he was able to flee, allegedly with the
marked P500.00 bill. 10
PO2 Catarata further testified on what he did with the plastic sachet
that Macud gave him after the buy-bust operation. He claimed that,
immediately after arresting Macud, he placed the mark "CATS 1-
10-12" and his signature on the single heat-sealed transparent
plastic sachet containing white crystalline substance and then
prepared the Inventory of Seized Evidence, which Macud refused to
sign. 11 PO2 Catarata and the team thereafter brought Macud and
the plastic sachet, first, to the police station for the preparation of
documents, and second, to the Crime Laboratory Office in Marikina
City for the examination of Macud and the contents of the plastic
sachet. 12
PCI Cejes testified on the delivery and receipt of the plastic sachet
and the examination of its contents. She stated that she was the
Forensic Chemist assigned at the Crime Laboratory Office in
Marikina City. At about 11:15 p.m. of January 10, 2012, she
of a specimen contained in one heat-sealed transparent plastic
sachet marked "CATS 1-10-12" with signature, along with the
mentioned specimen. She proceeded with the laboratory
examination of the specimen, which she marked as "Exhibit A, D-
0010-2012E LGC," and found that it tested positive for
methamphetamine hydrochloride or shabu. She then prepared
Physical Science Report No. D-0010-2012E where she listed her
findings on the submitted specimen. 13 aScITE
The testimonies of PO2 Francisco and PO2 Male were dispensed
with after the prosecution and the defense agreed on the following
stipulation of facts:
As to PO2 Francisco:
1. That he was the investigator in the present case;
2. That, as investigator, he prepared the Booking Sheet and
Arrest Report of the accused, the Request for Laboratory
Examination of the specimen, and the Request for Drug Test of the
accused;
3. That he took pictures of the accused and the seized
evidence at the police station;
4. That he delivered the Request for Laboratory Examination
and the specimen subject of the request, and the Request for Drug
Test of the accused to the Crime Laboratory Office in Marikina City;
and
5. That he has no personal knowledge of the circumstances
surrounding the arrest of the accused and the origin and source of
the specimen. 14
As to PO2 Male:
1. That he was the police officer who coordinated with the
Philippine Drug Enforcement Agency (PDEA). 15
In addition to the above testimonies, the prosecution offered the
following documentary and object evidence: 16
• Exhibit A and its submarkings Request for Laboratory The RTC found that the prosecution's evidence sufficiently established
Examination dated January 10, 2012 17 that Macud committed the offense charged. Macud was caught in
flagrante delicto illegally selling shabu, a dangerous drug.
• Exhibit B Improvised brown envelope with markings "D-10- Accordingly, it rendered judgment finding Macud guilty beyond
2012 E LGC" reasonable doubt of the offense of illegal sale of dangerous drugs,
• Exhibit B-1 One (1) heat-sealed transparent plastic sachet and sentenced him to life imprisonment and to pay a fine of
containing 0.08 gram of white crystalline substance, with markings P500,000.00. 31
"CATS 1-10-12" and signature As mentioned, the CA affirmed the RTC's guilty verdict after finding
• Exhibit C and its submarkings Physical Sciences Report No. Macud's appeal unmeritorious. Like the RTC, the CA found that the
DD-0010-2012E 18 prosecution's evidence sufficiently established that the elements of
the offense of illegal sale of dangerous drugs and that Macud was
• Exhibit D and its submarkings Sinumpaang Salaysay ng Pag- liable therefor. 32
Aresto 19
The CA did not agree with Macud's contention that the police
• Exhibit E and its submarkings Inventory of Seized Evidence officers' failure to comply with Section 21 of RA No. 9165 on the
20 custody and disposition of the seized drugs tainted the buy-bust
operation and rendered the evidence inadmissible. It declared that
• Exhibit F Booking Sheet and Arrest Report of the accused there was substantial compliance with the procedure to establish an
21 unbroken chain of custody which preserved the integrity and
• Exhibit G Photograph of the accused after he was arrested evidentiary value of the seized evidence. 33 HEITAD
22 Moreover, the CA did not find credible Macud's claim of frame
• Exhibit H Photograph of one (1) heat-sealed transparent up/extortion by the police officers. This claim was uncorroborated
plastic sachet containing 0.08 gram of white crystalline substance, and unsupported by any proof of ill motive on the part of the police
with markings "CATS 1-10-12" and signature 23 officers why they would falsely testify against Macud. The CA
considered Macud's defense as a mere alibi which cannot stand
• Exhibit I Request for Drug Test 24 against the clear and positive testimony of PO2 Catarata who was
performing his job when he caught Macud illegally selling shabu. 34
• Exhibit J and its submarkings Request for Laboratory
Examination 25 The Appeal

• Exhibit L Pre-Operation Report 26
• Exhibit M Coordination Sheet 27
The Accused's Evidence
Macud denied the charges against him and raised as defense frame
up/extortion by the police officers. DETACa
Macud stated that he earned a living by selling toys in the market.
On January 10, 2012, at about 8:20 p.m., he was walking along
Vieros Street on his way to the market when he saw five men
entering an alley that led to the Vicper Compound. One of the men
asked if he knew "Cali" to which he replied "no;" the men then
continued walking. A few seconds after, a commotion ensued but he
continued on his way. Suddenly, two of the five men returned, held
him, and ordered him to join them to their office for questioning. The
men then brought him to the Pasig City Motorpool where they frisked
him and demanded P50,000.00 from him, otherwise, they
threatened to file a case against him. When Macud replied that he
had no such amount, he was brought to Marikina City for drug test
and medical examination. Thereafter, he was detained in jail for
about 21 days until he was transferred to Nagpayong. 28
Macud claimed that he does not know the men and saw them for the
first time only during their encounter on January 10, 2012. He said
that prior to his arrest, he had been living at Vicper Compound for
about three months 29 and he previously came from Mindanao. 30
Ruling of the RTC and the CA
Through the present appeal, Macud seeks the reversal of his
conviction by claiming that his guilt was not proven beyond
reasonable doubt. 35 He alleges that no legitimate buy-bust
operation was conducted; instead, what transpired was an extortion
attempt. In support of this allegation, he refers to the failure of the
police officers to comply with the procedural requirements under
Section 21 of RA No. 9165 and of the prosecution to present the
marked money used in the alleged buy-bust operation. 36
The People, represented by the Solicitor General, disagrees and
contends that all the elements of the offense charged were duly
proved. 37 It claimed that Macud was arrested through a valid buy-
bust operation where he was caught in flagrante selling shabu.
Hence, the appeal must be denied and the conviction affirmed.
The Court's Ruling
The Court grants the appeal and reverses the CA Decision that
affirmed Macud's conviction for the offense charged. We find that
the integrity and relevance of the prosecution's evidence have been
compromised by the failure of the police to preserve the chain of
custody of the dangerous drug subject of the crime charged and,
thus, insufficient to support Macud's conviction therefor.
The preservation of the chain of
custody is essential in a successful
prosecution for the illegal sale of
dangerous drug
In every criminal prosecution, the Constitution affords the accused
presumption of innocence until his or her guilt for the crime charged
is proven beyond reasonable doubt. 38 The prosecution bears the
burden of overcoming this presumption and proving the liability of
the accused by presenting evidence showing that all the elements of
the crime charged are present. 39
To sustain a conviction for the offense of illegal sale of dangerous
drug as penalized under Section 5 of RA No. 9165, the following
elements must be established: aDSIHc
"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."
40
At this point, we address Macud's contention that the failure to
present the marked P500.00 bill used in the illegal sale of
dangerous drugs is fatal to the prosecution's case. The failure to
present the marked money in evidence, by itself, is not material since
its absence will not necessarily disprove the transaction. "[N]either
law nor jurisprudence requires the presentation of [the] money used
in [the] buy-bust operation." 41 We declared in People v. Rebotazo
what evidence has to be presented in prosecuting a violation of
Section 5 of RA No. 9165:
in prosecuting a case for the sale of dangerous drugs, the failure to
present marked money does not create a hiatus in the evidence for
the prosecution, as long as the sale of dangerous drugs is
adequately proven and the drug subject of the transaction is
presented before the court. 42 (Emphasis supplied)
Evidence must be shown that the sale transaction transpired, coupled
with the presentation of the corpus delicti, i.e., the body or substance
of the crime establishing its commission. 43 In a charge for illegal
sale of dangerous drugs, the corpus delicti is the dangerous drug
subject of the transaction. 44
Section 21 of RA No. 9165 provides a special rule on the handling
of items seized and confiscated in dangerous drugs cases. It
establishes a chain of custody rule which aims to preserve the
integrity of the items to be used in prosecutions under the law. 45
The adoption of a special rule in the handling of the dangerous
drugs in particular is necessitated by the nature of the dangerous
drug itself which is likely to be tampered, altered, contaminated, or
substituted. As the Court explained in Mallillin v. People 46 —
A unique characteristic of narcotic substances is that they are not
readily identifiable as in fact they are subject to scientific analysis
to determine their composition and nature. The Court cannot
reluctantly close its eyes to the likelihood, or at least the possibility,
that at any of the links in the chain of custody over the same there
could have been tampering, alteration or substitution of substances
from other cases — by accident or otherwise — in which similar
evidence was seized or in which similar evidence was submitted for
laboratory testing. Hence, in authenticating the same, a standard
more stringent than that applied to cases involving objects which are
readily identifiable must be applied, a more exacting standard that
entails a chain of custody of the item with sufficient completeness if
only to render it improbable that the original item has either been
exchanged with another or been contaminated or tampered with.
47 (Emphasis supplied) ATICcS
Jurisprudence identified four critical links in the chain of custody of
the dangerous drugs, to wit: "first, the seizure and marking, if
practicable, of the illegal drug recovered from the accused by the
apprehending officer; second, the turnover of the illegal drug seized
by the apprehending officer to the investigating officer; third, the
turnover by the investigating officer of the illegal drug to the
forensic chemist for laboratory examination; and, fourth, the
turnover and submission of the marked illegal drug seized from the
forensic chemist to the court." 48
With regard the first two links, Section 21 (1) of RA No. 9165 49
prescribes the procedure to be observed immediately after the
seizure and confiscation of the dangerous drugs. It reads:
SEC. 21. Custody and Disposition of Confiscated, Seized, and/or
Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs,
Controlled Precursors and Essential Chemicals,
Instruments/Paraphernalia and/or Laboratory Equipment. — The
PDEA shall take charge and have custody of all dangerous drugs,
plant sources of dangerous drugs, controlled precursors and
essential chemicals, as well as instruments/paraphernalia and/or
laboratory equipment so confiscated, seized and/or surrendered,
for proper disposition in the following manner:
(1) The apprehending team having initial custody and control
of the drugs shall, immediately after seizure and confiscation,
physically inventory and photograph the same in 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, and
any elected public official who shall be required to sign the copies
of the inventory and be given a copy thereof. (Emphasis supplied)
xxx xxx xxx
The law requires that, immediately after the seizure and confiscation
of the dangerous drugs, the apprehending team having initial
custody and control of the dangerous drugs shall physically
inventory and photograph the same. Both acts must be done in the
presence of the following persons: ETHIDa
1. the accused or his/her representative or counsel;
2. a representative from the media;
3. a representative from the Department of Justice (DOJ); and
4. any elected public official.
The witnesses shall then sign the inventory and be given copies
thereof.
The above procedure is supplemented by the Implementing Rules
and Regulations (IRR) of RA No. 9165. 50 Under Section 21 (a) of
the IRR, the physical inventory and photograph of the items seized
shall be conducted where the search warrant is served; otherwise, in
case of warrantless seizures, these shall be conducted at the nearest
police station or at the nearest office of the apprehending
officer/team. 51
Despite the mandatory language of the law, rigid compliance with
the above procedure is not expected. For this reason, the last proviso
of Section 21 (a) of the IRR states that "non-compliance with these
requirements under justifiable grounds, as long as the integrity and
the evidentiary value of the seized items are properly preserved by
the apprehending officer/team, shall not render void and invalid Q: Please show to us the evidence that it was received by
such seizures of and custody over said items." The prosecution must your office?
thus be able to explain the reasons behind the procedural lapses
and to prove as facts the grounds raised to justify non-compliance. A: There is a stamp receipt located at the lower portion of
52 Moreover, it must show that the integrity and evidentiary value the document and in that stamp receipt indicates the case number
of the seized evidence must have been preserved. 53 and the date and time received and the person who delivered. It
was PO2 Francisco, and my name is written in the received by [sic]
There was a break in the chain of portion, PCI Cejes.
custody of the seized dangerous drug xxx xxx xxx
which the prosecution failed to Q: You said it was not you who put the stamp mark receipt?
explain A: It was the duty recording clerk. The specimen was given to
me by PO2 Francisco and I instructed the . . . (discontinued).
The Court now proceeds to determine whether the laws and rules
discussed have been complied with in the present case. COURT:
The chain of custody began with PO2 Catarata who testified that Q: The request for laboratory examination?
he received from Macud a plastic sachet containing white crystalline
substance after he indicated interest to buy P300.00 worth of shabu A: The specimen, Your Honor, one heat-sealed transparent
and handed over the marked P500.00 bill. Upon receipt of the plastic sachet.
plastic sachet, PO2 Catarata said he arrested Macud and promptly xxx xxx xxx
prepared the Inventory of Seized Evidence.
RE-DIRECT EXAMINATION BY PROS. MADAMBA:
According to PO2 Catarata, he had custody of the plastic sachet
from the time Macud gave it to him up to the time it was turned over Q: What is your standard operating procedure upon
to the Criminal Laboratory Office in Marikina for examination: receiving the specimen, subject of the request for laboratory
examination?
PROS. MADAMBA:
A: Upon receiving the request for laboratory examination
Q: By the way, Mr. Witness, you are the one who is in and the specimen, the duty recording clerk will record the
custody of the transparent plastic sachet at the time that you arrest documents that would be received by the office and he will put the
[sic] the accused? stamp receipt and he will write entries on that document, while the
[PO2 CATARATA] specimen will be handed over to the forensic chemist who is the
duty officer for that particular case.
A: Yes, ma'am.
Q: Do you know the reason why he put your name PCI Cejes
Q: At the time you were at the office[,] who is in custody of as received by?
the evidence?
ATTY. AMPONG III:
A: From the start when I was able to confiscate it [sic] was in
my custody until it was delivered to the Crime Laboratory. She will be incompetent.

Q: So who gave the specimen to the Crime Laboratory? PROS. MADAMBA:

A: I was the one. 54 (Emphasis supplied) If she knows.

PO2 Catarata's testimony, however, is contradicted by that of PCI COURT:

Cejes — the forensic chemist in the Crime Laboratory Office, who Witness may answer.
stated that she received both the Request for Laboratory
Examination and the specimen, not from PO2 Catarata, but from A: Because, I am the duty forensic chemist and I was the one
PO2 Francisco: TIADCc who received the specimen from PO2 Francisco.
[PROS. MADAMBA:] xxx xxx xxx
Q: On that day, did you receive any document and Q: Who received the specimen, subject of your laboratory
specimens [sic] with regard to this case? examination, one heat sealed plastic sachet? cSEDTC
[PCI CEJES] A: I was the one, from PO2 Francisco. 55 (Emphasis supplied)
A: Yes, ma'am. I received request for laboratory Later in his testimony, PO2 Catarata was asked to clarify who
examination from [PO2] Francisco from the Pasig City Police turned over what item to PCI Cejes:
Station and together with the request is one heat sealed plastic
sachet containing white crystalline substance. Q: Mr. Witness, as you mentioned a while ago, you're
carrying that specimen from your office to the Crime Laboratory in
Marikina and what about this document who handed over this to There is thus a break in the chain of custody of the dangerous drug
the Marikina Crime Laboratory personnel, if you can remember? that was never explained by the prosecution, even when the
opportunity to do so arose. Nothing in the records showed when,
ATTY. AMPONG: how, and why the custody of the plastic sachet was transferred from
I believe, Your Honor, it [has] already been answered. PO2 Catarata to PO2 Francisco. We emphasized in Mallillin v.
People 58 how the chain of custody must be explained:
COURT:
As a method of authenticating evidence, the chain of custody rule
No, witness may answer. The prosecution is asking who requires that the admission of an exhibit be preceded by evidence
handed the Request for Laboratory Examination. sufficient to support a finding that the matter in question is what the
proponent claims it to be. It would include testimony about every link
A: Perhaps, it was Francisco. in the chain, from the moment the item was picked up to the time it
PROS. MADAMBA: is offered into evidence, in such a way that every person who
touched the exhibit would describe how and from whom it was
Q: But a while ago, when you were asked who went with you received, where it was and what happened to it while in the witness'
to the Crime Laboratory, you didn't mention Francisco, Mr. possession, the condition in which it was received and the condition
Witness? in which it was delivered to the next link in the chain. These witnesses
would then describe the precautions taken to ensure that there had
A: Yes, ma'am. been no change in the condition of the item and no opportunity for
someone not in the chain to have possession of the same. (Emphasis
Q: But now you remember it was PO2 Francisco who handed
supplied)
over this document?
It may nevertheless be argued that the identity and integrity of the
A: Yes, ma'am.
corpus delicti was preserved, since the plastic sachet that PO2
Q: How about the specimen who handed that specimen? Catarata, PO2 Francisco, PCI Cejes had all bore the marking "CATS
1-10-12" and PO2 Catarata's signature, suggesting that they all
A: I was the one, we were together in going to the Crime handed the same item that was seized from Macud. Though such an
Laboratory. explanation is plausible, we note that there are other significant
lapses in the prosecution's evidence that — viewed as a whole —
xxx xxx xxx
cast reasonable doubt on its case against Macud.
[CROSS-EXAMINATION BY ATTY. AMPONG]
There was an unjustified failure to
Q: In fact, after that the Request for Laboratory Examination
comply with the procedure
was shown to you and you saw in this stamp receipt the name of
PO2 Francisco, that was the only time that you said PO2 Francisco prescribed under Section 21, RA No.
accompanied you to the Crime Laboratory, isn't it.
9165
A: Yes, sir.
The prosecution never contested that the police officers failed to
xxx xxx xxx comply with Section 21 (1) of RA No. 9165 and Section 21 (a) of its
IRR. The lapses constituted of the following:
Q: What is that something that PO2 Francisco handed to the
receiving officer? first, the absence of a representative of the media, the DOJ, and
any elected public official to witness the marking and physical
A: Document, sir.
inventory of the seized drugs; and
Q: He was the one who handed that document but you were
second, although the marking and physical inventory of the seized
the one who handed the plastic sachet to the receiving officer,
drugs were done immediately after the arrest, the photograph was
correct?
done after the operation and in the police station by PO2 Francisco,
A: Yes, sir. 56 (Emphasis supplied) 59 also without the requisite persons who should have witnessed the
act.
While no one is expected to have a perfect memory, we find more
credible PCI Cejes' straightforward and consistent statement that it When asked to explain why there was failure to comply with the
was PO2 Francisco who handed her both the document entitled procedural requirements, PO2 Catarata simply said that doing so
Request for Laboratory Examination and the specimen subject of the could compromise the buy-bust operation:
request, i.e., the plastic sachet with shabu. Indeed, this was among
COURT:
the facts that the parties stipulated on with regard the testimony of
PO2 Francisco: AIDSTE Q: Mr. Witness, why in the inventory receipt there is no
representative from PDEA, from barangay, Department of Justice
x x x (4) that he was the one who delivered the request for
and media? SDAaTC
laboratory examination together with the specimen stated thereon,
and the request for drug test to the Crime Laboratory Service in WITNESS:
Marikina City; x x x 57
A: We have no companion, your Honor.
COURT:
Q: You did not coordinate with the barangay of Vicper
Compound?
A: Yes, your Honor.
COURT:
Q: Why?
WITNESS:
A: Because if we will coordinate it might compromise the
operation, your Honor.
COURT:
Witness, you're [excused]. 60 (Emphasis supplied)
We find this justification insufficient. Other than PO2 Catarata's
bare allegation that coordination with the local officials could have
compromised the buy-bust operation, the prosecution offered no
factual evidence to substantiate this claim. Even if the claim were
true, there is no requirement under the law that the elected public
official who should witness the operation must be one of those
elected in the same locality where the operation is conducted so as
not to compromise the police operation in the area. This is clear from
the wordings of the law itself which says "any elected public official."
61
We cannot even declare that there was substantial compliance with
the law in this case as the police officers invited no other person to
witness the procedures that were done after the buy-bust operation,
i.e., the marking, inventory, and photography of the seized drugs.
There was no representative of the media or the DOJ and no
allegation that these people could similarly compromise the
operation if they had been informed of and present before, during,
and after the operation.
The presence of the persons who should witness the post-operation
procedures is necessary to insulate the apprehension and
incrimination proceedings from any taint of illegitimacy or
irregularity. 62 The insulating presence of such witnesses would have
preserved an unbroken chain of custody. 63 We have noted in
several cases that a buy-bust operation is susceptible to abuse, and
the only way to prevent this is to ensure that the procedural
safeguards provided by the law are strictly observed. In the present
case, not only have the prescribed procedures not been followed,
but also (and more importantly) the lapses not justifiably explained.
In People v. Dela Cruz 64 where there was a similar failure to
comply with Section 21 of RA No. 9165, the Court declared:
x x x This inexcusable non-compliance effectively invalidates their
seizure of and custody over the seized drugs, thus, compromising the
identity and integrity of the same. We resolve the doubt in the
integrity and identity of the corpus delicti in favor of appellant as
every fact necessary to constitute the crime must be established by
proof beyond reasonable doubt. Considering that the prosecution
failed to present the required quantum of evidence, appellants
acquittal is in order. 65
As in Dela Cruz, and in view of the foregoing, the Court finds the
acquittal of Macud in order. AaCTcI
The prosecution cannot rely on the
presumption of regularity in the
performance of official functions
and the weakness of the defense's
evidence to bolster its case
Any doubt on the conduct of the police operations cannot be
resolved in the prosecution's favor by relying on the presumption of
regularity in the performance of official functions. The failure to
observe the proper procedure negates the operation of the
regularity accorded to police officers. 66 Moreover, to allow the
presumption to prevail notwithstanding clear lapses on the part of
the police is to negate the safeguards precisely placed by the law
to ensure that no abuse is committed.
Macud may not have offered much by way of defense; he simply
denied the charges and claimed that it was nothing but an extortion
attempt by the police. Nevertheless, the prosecution cannot rely on
the weaknesses of the defense's evidence to bolster its case. "If the
prosecution cannot establish, in the first place, the [accused's] guilt
beyond reasonable doubt, the need for the defense to adduce
evidence in its behalf in fact never arises." 67
We recognize the pernicious effects of dangerous drugs in our
society, but the effort to defeat or eradicate these cannot trample
on the constitutional rights of individuals, particularly those at the
margins of our society who are prone to abuse at the hands of the
armed and uniformed men of the State. Time and again, we have
exhorted courts "to be extra vigilant in trying drug cases, lest an
innocent person is made to suffer the unusually severe penalties for
drug offenses." 68 This case in particular exhibits how a miniscule
amount — 0.08 gram — of drugs could have cost a man his liberty
for a lifetime due a bungled up buy-bust operation.
We thus end our ruling by reiterating our words in People v.
Holgado: 69
It is lamentable that while our dockets are clogged with prosecutions
under Republic Act No. 9165 involving small-time drug users and
retailers, we are seriously short of prosecutions involving the
proverbial "big fish." We are swamped with cases involving small
fry who have been arrested for miniscule amounts. While they are
certainly a bane to our society, small retailers are but low-lying fruits
in an exceedingly vast network of drug cartels. Both law enforcers
and prosecutors should realize that the more effective and efficient
strategy is to focus resources more on the source and true leadership
of these nefarious organizations. Otherwise, all these executive and
judicial resources expended to attempt to convict an accused for
0.05 gram of shabu under doubtful custodial arrangements will
hardly make a dent in the overall picture. It might in fact be
distracting our law enforcers from their more challenging task: to
uproot the causes of this drug menace. We stand ready to assess
cases involving greater amounts of drugs and the leadership of these
cartels.
WHEREFORE, premises considered, the Decision dated July 31,
2014 of the Court of Appeals in CA-G.R. CR-H.C. No. 06239 is
REVERSED and SET ASIDE. Accused-appellant Amroding Macud y
Dimaampao is hereby ACQUITTED for the failure of the prosecution
to prove his guilt beyond reasonable doubt. He is ordered
immediately RELEASED from detention, unless he is confined for any
other lawful cause. acEHCD
Let a copy of this Decision be furnished to the Director of the Bureau
of Corrections, Muntinlupa City, for immediate implementation. The
Director of the Bureau of Corrections is directed to report to this
Court within five days from receipt of this Decision the action he has
taken. Copies shall also be furnished to the Director General of
Philippine National Police and the Director General of Philippine
Drugs Enforcement Agency for their information.
SO ORDERED.
FIRST DIVISION
[G.R. No. 206590. March 27, 2017.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.
MYRNA GAYOSO y ARGUELLES, accused-appellant.
DECISION
DEL CASTILLO, J p:
In criminal prosecutions for the illegal sale and possession of shabu,
primordial importance must be given to "the preservation of the
integrity and the evidentiary value of the seized items as they will
be used to determine the guilt or innocence of the accused." 1 aScITE
This is an appeal from the June 23, 2011 Decision 2 of the Court of
Appeals (CA) in CA-G.R. CR-HC No. 00744 that affirmed in toto the
April 12, 2007 Decision 3 of the Regional Trial Court (RTC) of
Guiuan, Eastern Samar, Branch 3, in Criminal Case Nos. 2079 and
2078, finding Myrna Gayoso y Arguelles (appellant) guilty beyond
reasonable doubt of violating Sections 5 (illegal sale of a dangerous
drug) and 11 (illegal possession of a dangerous drug), Article II of
Republic Act (RA) No. 9165, respectively, and imposing upon her the
penalty of life imprisonment and a fine of P500,000.00 for selling
shabu, and the indeterminate prison term of eight (8) years and one
(1) day, as minimum, to fourteen (14) years, eight (8) months and
one (1) day, as maximum, for possessing 0.53 gram of shabu.
Factual Antecedents
The Information in Criminal Case No. 2078 contained the following
accusatory allegations against appellant:
That on or about the 24th day of March, 2004, at about 5:30 o'clock
in the morning at Jetty, Brgy. Hollywood, Guian, Eastern Samar,
Philippines, within the jurisdiction of this Honorable Court, the
abovementioned accused who acted without the necessary permit
from proper authorities whatsoever, did then and there willfully,
unlawfully and feloniously have in her possession, control and
custody eleven (11) x x x sachets [containing] Methamphetamine
Hydrochloride commonly known as "shabu" weighing 0.53 [gram], a
dangerous drug.
Contrary to law. 4
The Information in Criminal Case No. 2079 charged appellant in the
following manner:
That on or about the 24th day of March, 2004, at about 5:00 o'clock
in the morning at Jetty, Brgy. Hollywood, Guian, Eastern Samar,
Philippines, within the jurisdiction of this Honorable Court, the above-
named accused, who acted without the necessary permit or authority
whatsoever, did then and there willfully, unlawfully and criminally
sell, deliver and dispense one (1) pc. small heat sealed sachet of
Methamphetamine Hydrochloride commonly known as "shabu"
weighing 0.06 [gram], a dangerous drug. DETACa
Contrary to law. 5
During arraignment, appellant entered a plea of "not guilty" in both
cases. Joint trial then ensued.
Version of the Prosecution
Based on the testimonies of SPO3 Victorino de Dios (SPO3 De Dios),
SPO3 Rolando G. Salamida (SPO3 Salamida), PO2 Rex Isip (PO2
Isip), SPO4 Josefina Bandoy (SPO4 Bandoy), P/Insp. Eleazar
Barber, Jr. (PI Barber), PS/Insp. Benjamin Cruto (PSI Cruto), and the
documentary exhibits, the following facts emerged:
PI Barber of the PNP 6 Guiuan Police Station directed SPO3 De Dios
to conduct a surveillance on appellant after receiving several
reports that she was peddling prohibited drugs. Three weeks later,
SPO3 De Dios confirmed that appellant was indeed engaged in
illegal drug activities. PI Barber filed for and was issued a search
warrant. However, prior to implementing the search warrant, PI
Barber decided to conduct a "confirmatory test-buy" designating
SPO3 De Dios as poseur-buyer and giving him P200.00 marked
money for the operation.
On March 24, 2004, SPO3 De Dios and a civilian asset proceeded
to the house of appellant and asked her if they could buy shabu.
The sale was consummated when appellant took the marked money
from SPO3 De Dios after giving him a sachet of shabu. SPO3 De
Dios immediately informed PI Barber by text message about the
successful "confirmatory test-buy." PI Barber and his team of police
officers who were positioned 100 meters away rushed towards the
house of appellant. He also instructed SPO3 De Dios and the civilian
asset to summon the Barangay Chairman to witness the search of the
house. When he arrived together with a kagawad and a media
representative, SPO3 Salamida read the search warrant to
appellant.
During the search of the house, SPO4 Bandoy found a tin foil under
the mattress. SPO3 De Dios took it from SPO4 Bandoy and gave it
to SPO3 Salamida who found seven sachets of shabu inside, in
addition to the four sachets of shabu found inside the right pocket
of the short pants of appellant. The search of the house also
revealed several drug paraphernalia. An inventory of seized items
was prepared and the same was signed by the Barangay Chairman,
PO2 Isip, SPO4 Bandoy, and appellant. The sachets of shabu were
brought to the Philippine Drug Enforcement Agency (PDEA) then to
the PNP Crime Laboratory for qualitative examination. The results
of the examination verified that the seized sachets contained shabu.
Version of Appellant
Appellant denied the charges against her. She claimed that on
March 24, 2004, somebody forcibly kicked the front door of her
house and tried to break it open. When she opened the door, PI
Barber pushed her aside and told his companions to move quickly.
They went directly to her room; when PO2 Isip emerged therefrom
seconds later, he was holding a substance that looked like tawas.
SPO3 De Dios and SPO3 Salamida went in and out of her house.
She maintained that the search warrant was shown to her only after
an hour and that the sachets of shabu were planted. She argued
that the police officers fabricated the charges against her since her
family had a quarrel with a police officer named Rizalina Cuantero
regarding the fence separating their houses.
The Ruling of the Regional Trial Court
The RTC found appellant guilty beyond reasonable doubt of illegal
sale and illegal possession of shabu. It declared that the prosecution
ably established the elements of illegal sale and possession of shabu
through the testimonies of its witnesses who arrested appellant after
selling a sachet of the illegal drug in a "test-buy operation" and for
possessing 11 sachets of the same drug in her house after enforcing
a search warrant immediately thereafter. Appellant had no
evidence that she had license or authority to possess the shabu.
The RTC ruled that the evidence sufficiently established the chain of
custody of the sachets of shabu from the time they were bought from
appellant and/or seized from her house, to its turnover to the PDEA
and submission to the PNP Crime Laboratory for examination. The
RTC rejected appellant's defense of denial and frame-up in view of
her positive identification by eyewitnesses as the criminal offender.
The RTC therefore sentenced appellant to life imprisonment and to
pay a fine of P500,000.00 for the illegal sale of shabu. It also
sentenced appellant to suffer the indeterminate prison term of eight
(8) years and one (1) day, as minimum to fourteen (14) years, eight
(8) months and one (1) day, as maximum and a fine of P300,000
for illegal possession of shabu.
From this judgment, appellant appealed to the CA. In her Brief, 7
she assailed the validity of the search warrant claiming that it was
not issued by the RTC upon determination of probable cause. She
argued that the "confirmatory test-buy" conducted by the poseur
buyer and the confidential asset was not valid since they forced her
to engage in a drug sale. She maintained that the shabu presented
during trial was inadmissible in evidence due to several gaps in its
chain of custody. HEITAD
The Office of the Solicitor General (OSG) filed its Brief for the
Appellee 8 praying for the affirmance of the appealed Decision. It
argued that the evidence on which the RTC based its determination
of probable cause was sufficient for the issuance of the search
warrant. It asserted that the "test-buy operation" was an entrapment
and not an inducement. The OSG maintained that the shabu
confiscated from appellant was admissible in evidence since the
prosecution established the proper chain of custody.
The Ruling of the Court of Appeals
The CA affirmed in toto the RTC ruling finding appellant guilty of
unauthorized sale and possession of shabu. The CA ruled that all the
elements for the sale of shabu were established during the "test-buy
operation". It held that the illegal sale of shabu was proven by
SPO3 De Dios who participated in said operation as the designated
poseur buyer. His offer to buy shabu with marked money and
appellant's acceptance by delivering the illegal drug consummated
the offense. The CA likewise declared that the elements for
possession of shabu were present in the case against appellant.
After appellant's arrest for illegal sale of shabu, a valid search
resulted in the discovery of 11 sachets of shabu inside her house,
which were under her possession and control. She did not have legal
authority to possess the same and failed to overcome the
presumption that she consciously knew she was in possession of the
illegal drug discovered in her home.
The CA noted that the examination by the trial judge established
probable cause in issuing the search warrant. The deposition of PO3
Salamida shows that he had personal knowledge of appellant's
drug activities, and the same served as basis for the finding of
probable cause for the purpose of issuing a search warrant.
The CA was not swayed by appellant's contention that the "test-buy
operation" amounted to instigation since it is settled jurisprudence
that a "decoy solicitation" is not tantamount to inducement or
instigation. The CA was also unconvinced by appellant's claim that
the proof against her was inadmissible since the prosecution failed
to show strict compliance with Section 21 of RA 9165 and its
implementing rules on the custody and disposition of the evidence.
Appellant filed a Notice of Appeal. 9 On July 15, 2013, 10 the
Court notified the parties to file their supplemental briefs. However,
appellant opted not to file a supplemental brief since she had
extensively argued her cause in her appellants' brief. 11 For its part,
the OSG manifested that it would not file a supplemental brief since
its appellee's brief filed in the CA had already discussed and
refuted the arguments raised by appellant. 12
Our Ruling
The RTC Issued A Search Warrant After
Finding Probable Cause.
Appellant contends that there was no probable cause for the
issuance of the search warrant. She claims that PI Barber had no
personal knowledge of her alleged drug dealings.
There is no merit in this contention.
Probable cause for a valid search warrant is defined "as such facts
and circumstances which would lead a reasonably discreet and
prudent man to believe that an offense has been committed, and
that objects sought in connection with the offense are in the place
sought to be searched." 13 The probable cause must be "determined
personally by the judge, after examination under oath or
affirmation of the complainant and the witnesses he may produce,
and particularly describing the place to be searched and the
persons or things to be seized." 14 Probable cause does not mean
actual and positive cause, nor does it import absolute certainty. The
determination of the existence of probable cause is concerned only
with the question of whether the affiant has reasonable grounds to
believe that the accused committed or is committing the crime
charged. 15 aDSIHc
Here, the records reveal that the trial court issued the search warrant
after deposing two witnesses, namely PI Barber and SPO3
Salamida. In particular, the deposition of SPO3 Salamida shows that
he had personal knowledge of appellant's drug pushing activities
which served as basis for the finding of probable cause for the
issuance of the search warrant. Thus, whether or not PI Barber had
personal knowledge of the illegal drug activities committed by
appellant will not adversely affect the findings of probable cause
for the purpose of issuance of search warrant.
Confirmatory test-buy solicitation does
not constitute instigation.
Appellant argues that the "confirmatory test-buy" by the police
officers was not valid since she was induced by the designated
poseur buyer, SPO3 De Dios, and the confidential informant to sell
the seized shabu.
There is no merit in this argument.
In inducement or instigation —
the criminal intent originates in the mind of the instigator and the
accused is lured into the commission of the offense charged in order
to prosecute him. The instigator practically induces the would-be
accused into the commission of the offense and himself becomes a
co-principal. [This is distinguished from entrapment wherein] ways
and means are resorted to for the purpose of capturing the
lawbreaker in flagrante delicto. 16
The "test-buy" operation conducted by the police officers is not
prohibited by law. It does not amount to instigation. As in this case,
the solicitation of drugs from appellant by the poseur buyer merely
furnishes evidence of a course of conduct. 17 The police received an
intelligence report that appellant habitually deals with shabu. They
designated a poseur buyer to confirm the report by engaging in a
drug transaction with appellant. There was no proof that the poseur
buyer induced appellant to sell illegal drugs to him.
Notwithstanding the foregoing disquisition, appellant still deserves
an acquittal as will be discussed below.
The chain of custody of evidence was not
established. ATICcS
Appellant impugns the prosecution's failure to establish the charges
of illegal sale and possession of shabu against her due to the gaps
in the chain of custody and the assailable integrity of the evidence
in view of non-compliance with Section 21, Article II of RA 9165.
There is merit in this protestation.
The offense of illegal sale of shabu has the following elements: "(1)
the identities of the buyer and the seller, the object and
consideration of the sale; and (2) the delivery of the thing sold and
the payment therefor." 18 On the other hand, the offense of illegal
possession of shabu has the following elements: "(1) the accused is in
possession of an item or an object which is identified to be a
prohibited drug; (2) such possession is not authorized by law; and
(3) the accused freely and consciously possessed said drug." 19 In
the prosecution for illegal sale and possession of shabu, there must
be proof that these offenses were actually committed, coupled with
the presentation in court of evidence of corpus delicti. 20
In both illegal sale and illegal possession of [shabu,] conviction
cannot be sustained if there is a persistent doubt on the identity of
said drug. The identity of the [shabu] must be established with moral
certainty. Apart from showing that the elements of possession or sale
are present, the fact that the [shabu] illegally possessed and sold x
x x is the same [shabu] offered in court as exhibit must likewise be
established with the same degree of certitude as that needed to
sustain a guilty verdict. 21
"The chain of custody requirement performs this function in that it
ensures that unnecessary doubts concerning the identity of the
evidence are removed." 22
Chain of custody is defined as "duly recorded authorized movements
and custody of seized drugs or controlled chemicals or plant sources
of dangerous drugs or laboratory equipment of each stage, from
the time of seizure/confiscation to receipt in the forensic laboratory
to safekeeping, to presentation in court for destruction." 23 In People
v. Havana, 24 the Court expounded on the custodial chain
procedure in this wise:
As a method of authenticating evidence, the chain of custody rule
requires that the admission of an exhibit be preceded by evidence
sufficient to support a finding that the matter in question is what the
proponent claims it to be. It would include testimony about every link
in the chain, from the moment the item was picked up to the time it
is offered in evidence, in such a way that every person who touched
the exhibit would describe how and from whom it was received,
where it was and what happened to it while in the witness'
possession, the condition in which it was received and the condition
in which it was delivered to the next link in the chain. These witnesses
would then describe the precautions taken to ensure that there had
been no change in the condition of the item and no opportunity for
someone not in the chain to have possession of the same. ETHIDa
While the testimony about a perfect chain is not always the standard
because it is almost always impossible to obtain, an unbroken chain
of custody becomes indispensable and essential when the item of
real evidence is not distinctive and is not readily identifiable, or
when its condition at the time of testing or trial is critical, or when a
witness has failed to observe its uniqueness. The same standard
obtains in case the evidence is susceptible of alteration, tampering,
contamination and even substitution and exchange. In other words,
the exhibit's level of susceptibility to fungibility, alteration or
tampering — without regard to whether the same is advertent or
otherwise not — dictates the level of strictness in the application of
the chain of custody rule.
Thus, as a general rule, four links in the chain of custody of the
confiscated item must be established:
first, the seizure and marking, if practicable, of the illegal drug
recovered from the accused by the apprehending officer; second,
the turnover of the illegal drug seized by the apprehending officer
to the investigating officer; third, the turnover by the investigating
officer of the illegal drug to the forensic chemist for laboratory
examination; and fourth, the turnover and submission of the marked
illegal drug seized from the forensic chemist to the court. 25
Marking is the placing by the arresting officer or the poseur-buyer
of his/her initials and signature on the items after they have been
seized. It is the starting point in the custodial link. It is vital that the
seized items be marked immediately since the succeeding handlers
thereof will use the markings as reference. 26 The chain of custody
rule also requires that the marking of the seized contraband be done
"(1) in the presence of the apprehended violator, and (2)
immediately upon confiscation." 27
In this case, the records do not show that the arresting officers
marked the seized items with their initials in the presence of
appellant and immediately upon confiscation. While PO2 Isip
testified that the seized sachets of shabu were marked in the police
station, 28 no evidence was presented to show that the marking was
accomplished in the presence of appellant. Moreover, the author of
the markings on said items was never identified. None of the police
officers admitted placing the markings. There was therefore a
complete absence of evidence to prove authorship of the markings.
While marking of the evidence is allowed in the nearest police
station, this contemplates a case of warrantless searches and
seizures. 29 Here, the police officers secured a search warrant prior
to their operation. They therefore had sufficient time and
opportunity to prepare for its implementation. However, the police
officers failed to mark immediately the plastic sachets of shabu
seized inside appellant's house in spite of an Inventory of Property
Seized that they prepared while still inside the said house. The
failure of the arresting officers to comply with the marking of
evidence immediately after confiscation constitutes the first gap in
the chain of custody.
The turnover of the seized shabu from the arresting officers to the
investigating officer in the police station constitutes the second link in
the chain of custody. In this regard, the Court takes note that the
testimonies of the prosecution witnesses failed to identify the person
to whom the seized items were turned over at the police station.
While SPO3 Salamida was identified as the property custodian of
the police station, this does not necessarily mean that he is also the
investigating officer. There is nothing in the records to substantiate
this presumption. This total want of evidence gains importance
considering that none of the arresting officers presented as witnesses
identified the shabu presented during trial as the same shabu seized
from appellant. Thus, the second link in the chain of custody is missing.
The transfer of the seized shabu from the investigating officer to the
forensic chemist in the crime laboratory is the third link in the chain
of custody. While the seized shabu was turned over by PI Barber to
the PDEA, he no longer had any personal knowledge of the manner
it was handled therein. He also did not identify the police officer in
whose custody the seized sachets of shabu were placed at the PDEA.
He left it to the responsibility of the PDEA to forward the seized
shabu to the crime laboratory. The request for laboratory
examination of the PDEA identifies the police officer who delivered
the seized shabu as a certain SPO1 Asis, but he was not presented
to testify that the shabu delivered to the crime laboratory was the
same shabu confiscated from appellant. There is a third break in the
chain of custody. TIADCc
Nothing also can be gained from the testimony of the forensic
chemist PSI Cruto. His testimony is not clear and positive since he
failed to assert that the alleged packs of chemical substance
presented for laboratory examination and tested positive for shabu
were the very same substance allegedly recovered from appellant.
His testimony was limited to the result of the examination he
conducted and not on the source of the substance.
From the foregoing, it appears that no chain of custody was
established at all. What we have here are individual links with
breaks in-between which could not be seamlessly woven or tied
together. The so-called links in the chain of custody show that the
seized shabu was not handled properly starting from the actual
seizure, to its turnover in the police station and the PDEA, as well as
its transfer to the crime laboratory for examination. The Court
therefore cannot conclude with moral certainty that the shabu
confiscated from appellant was the same as that presented for
laboratory examination and then presented in court.
It is indeed desirable that the chain of custody should be perfect and
unbroken. In reality however, this rarely occurs. The legal standard
that must therefore be observed "is the preservation of the integrity
and the evidentiary value of the seized items as they will be used
to determine the guilt or innocence of the accused." 30 Here, the
Court finds that the apprehending officers failed to properly
preserve the integrity and evidentiary value of the confiscated
shabu. There are just too many breaks and gaps to the effect that a
chain of custody could not be established at all. Failure of the
prosecution to offer testimony to establish a substantially complete
chain of custody of the shabu and the inappropriate manner of
handling the evidence prior to its offer in court diminishes the
government's chance of successfully prosecuting a drug case. 31
Aside from the failure of the prosecution to establish an unbroken
chain of custody, another procedural lapse casts further uncertainty
on the identity and integrity of the subject shabu. This refers to the
non-compliance by the arresting officers with the most basic
procedural safeguards relative to the custody and disposition of the
seized item under Section 21 (1), Article II of RA 9165, which reads
as follows:
SEC. 21. Custody and Disposition of Confiscated, Seized, and/or
Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs,
Controlled Precursors and Essential Chemicals,
Instruments/Paraphernalia and/or Laboratory Equipment. — The
PDEA shall take charge and have custody of all dangerous drugs,
plant sources of dangerous drugs, controlled precursors and
essential chemicals, as well as instruments/paraphernalia and/or
laboratory equipment so confiscated, seized and/or surrendered,
for proper disposition in the following manner:
(1) The apprehending team having initial custody and control
of the drug shall, immediately after seizure and confiscation,
physically inventory and photograph the same in 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
copies of the inventory and be given a copy thereof.
Corollarily, Section 21 (a) of the Implementing Rules and Regulations
provides as follows:
Section 21 (a) The apprehending officer/team having initial custody
and control of the drug shall, immediately after seizure and
confiscation, physically inventory and photograph the same in 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, the Department of Justice (DOJ), and
a public official who shall be required to sign the copies of the
inventory and be given a copy thereof: Provided, that the physical
inventory and photograph shall be conducted at the place where
the search warrant is served; or at the nearest office of the
apprehending officer/team, whichever is practicable, in case of
warrantless seizures; Provided, further, that non-compliance with
these requirements under justifiable grounds, as long as the integrity
and the evidentiary value of the seized items are properly
preserved by the apprehending officer/team, shall not render void
and invalid such seizure of and custody over said items. cSEDTC
In this case, the apprehending team never conducted a physical
inventory of the seized items at the place where the search warrant
was served in the presence of a representative of the Department
of Justice, nor did it photograph the same in the presence of
appellant after their initial custody and control of said drug, and
after immediately seizing and confiscating the same. Neither was an
explanation offered for such failure. While this directive of rigid
compliance has been tempered in certain cases, "such liberality, as
stated in the Implementing Rules and Regulations can be applied
only when the evidentiary value and integrity of the illegal drug are
properly preserved." 32 Such an exception does not obtain in this
case. "Serious uncertainty is generated on the identity of the [shabu]
in view of the broken linkages in the chain of custody. [Thus,] the
presumption of regularity in the performance of official duty
accorded to the [apprehending officers] by the courts below cannot
arise." 33
WHEREFORE, the appeal is GRANTED. The Decision of the Court of
Appeals in CA-G.R. CR-HC No. 00744 dated June 23, 2011 is
REVERSED and SET ASIDE. Appellant Myrna Gayoso y Arguelles is
hereby ACQUITTED of the charges, her guilt not having been
established beyond reasonable doubt.
The Superintendent for the Correctional Institute for Women is
hereby ORDERED to immediately RELEASE the appellant from
custody, unless she is held for another lawful cause. AIDSTE
SO ORDERED.
SECOND DIVISION
[G.R. No. 198450. January 11, 2016.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.
FERNANDO RANCHE HAVANA a.k.a. FERNANDO RANCHE
ABANA, accused-appellant.
DECISION
DEL CASTILLO, J p:
"Statutory rules on preserving the chain of custody of confiscated
prohibited drugs and related items are designed to ensure the
integrity and reliability of the evidence to be presented against the
accused. Their observance is the key to the successful prosecution of
illegal possession or illegal sale of dangerous drugs." 1
At issue in this case is whether appellant Fernando Ranche Havana
a.k.a. Fernando Ranche Abana did in fact sell or deliver to an
alleged poseur-buyer some 0.03 gram of the banned substance
Methylamphetamine Hydrochloride, locally known as "shabu" on the
late afternoon of November 4, 2005. The appellant insists that he
never did. The prosecution asserts the contrary. HTcADC
On appeal is the May 31, 2010 Decision 2 of the Court of Appeals
(CA) in CA-G.R. CR-HC No. 00688, affirming the February 28, 2007
Decision 3 of the Regional Trial Court (RTC) of Cebu City, Branch 58
finding Fernando Havana y Ranche a.k.a. Fernando Abana y Ranche
(appellant) guilty of violating Section 5, Article II of Republic Act No.
9165 (RA 9165) otherwise known as the Comprehensive Dangerous
Drugs Act of 2002 and sentencing him to suffer the penalty of life
imprisonment and to pay a fine of P500,000.00.
Factual Antecedents
In an Information 4 dated November 18, 2005, the appellant was
charged with illegal sale of dangerous drugs committed as follows:
That on or about the 4th day of November, 2005, at about 6:30
p.m., in the City of Cebu, Philippines, and within the jurisdiction of
this Honorable Court, the said accused, with deliberate intent and
without authority of law, did then and there sell, deliver or give
away to a poseur[-]buyer the following:
One (1) beat-sealed transparent plastic packet containing 0.03
gram of white crystalline substance
containing Methylamphetamine Hydrochloride, locally known as
"SHABU", a dangerous drug.
CONTRARY TO LAW. 5
Appellant put in a negative plea. Trial then followed.
The prosecution's case is essentially erected upon the testimonies of
PO2 Miguel R. Enriquez 6 (PO2 Enriquez), SPO1 Rogelio J. Cañete,
Jr. (SPO1 Cañete), and Police Chief Inspector Mutchit G. Salinas (PCI
Salinas), all members of the Philippine National Police (PNP), Police
Station 10, Punta Princesa, Cebu City and documentary exhibits
pertaining to the buy-bust operation. The combined testimonies and
the documentary exhibits tended to establish these facts:
On the afternoon of November 4, 2005, a civilian informant, one
"Droga", went to Police Station 10, Punta Princesa, Cebu City and
reported to the duty officer SPO1 Vicente R. Espenido, Jr. (SPO1
Espenido) that the appellant was actively engaged in the illegal
drug trade at Sitio Mangga, Punta Princesa, Cebu City. SPO1
Espenido immediately assembled a buy-bust team, with him as the
team leader, the civilian asset and with PO2 Enriquez, SPO1 Cañete,
and SPO1 Jasper C. Nuñez (PO2 Nuñez) as back-up. The police
team designated the unnamed "civilian informant" as poseur-buyer
and provided him with a P100.00 marked money bill, with its serial
number (SN003332) noted in the police blotter, 7 to be used for the
purpose of buying shabu from appellant. The buy-bust operation
was allegedly coordinated with the Office of the Philippine Drug
Enforcement Agency (PDEA). 8 When the police team reached the
target area, the "civilian informant" went to the house of appellant
and called the latter. Hidden from view, some 15 meters away from
the house, the back-up operatives, PO2 Enriquez and SPO1 Cañete,
saw the civilian informant talking with the appellant. Not long after,
they saw the "civilian informant" handling over the marked P100.00
bill to the appellant, who in exchange gave to the former a plastic
pack containing 0.03 gram white crystalline substance which these
two suspected as shabu. The "civilian informant" then placed a face
towel on his left shoulder to signal that the sale had been
consummated. SPO1 Espenido and his two companions rushed
towards the "civilian informant" and the appellant and arrested the
latter after apprising him of his constitutional rights. SPO1 Espenido
recovered the P100.00 marked money from the appellant while the
plastic pack was given by the "civilian informant" to SPO1 Espenido.
The appellant was taken to the police station for investigation. The
P100.00 marked money and the plastic pack containing the
suspected shabu were turned over to SPO2 Nuñez who marked the
plastic pack with "FA" the initials of herein appellant. He then
prepared a letter requesting for examination 9 of the item seized
from the appellant addressed to the PNP Crime Laboratory. PCI
Salinas, a forensic chemist of the PNP Crime Laboratory of Brgy.
Apas, Cebu City, testified that he conducted a laboratory
examination of the recovered specimen 10 that yielded "positive
result for the presence of methylamphetamine hydrochloride, a
dangerous drug." 11
The appellant denied that he was a shabu-seller; he also denied
that he was arrested in a buy-bust operation. He claimed that on
that evening of November 4, 2005 he was eating bread when SPO2
Nuñez barged inside his house, handcuffed him and brought him to
the police precinct. He claimed that he was mistaken for his neighbor
"Narding" the real shabu-seller. His daughter, Maria Theresa,
corroborated him.
Ruling of the Regional Trial Court
The RTC found appellant guilty as charged and sentenced him to
suffer the penalty of life imprisonment and to pay a fine of
P500,000.00. CAIHTE
From this judgment, appellant appealed to the CA.
Ruling of the Court of Appeals
On appeal, the CA upheld the RTC ruling. The appellate court held
that the non-submission of the pre-operation report to the PDEA did
not at all render the buy-bust operation irregular. What it held as
important is that the police officers were able to call the PDEA prior
to the operation. The CA was convinced that all the elements of the
offense charged were established by the prosecution. The CA held
that the integrity and evidentiary value of the confiscated item had
been preserved, despite the fact that the police officers did not
strictly adhere to the procedure outlined in Section 21 of RA 9165
which governs the so-called "buy-bust" operations. It held that the
police officers regularly performed their functions. Thus, in its
Decision of May 31, 2010, the CA decreed dispositively —
WHEREFORE, premises considered, the Appeal is hereby
DISMISSED. The Decision dated February 28, 2007 of the Regional
Trial Court (RTC), Branch 58, Cebu City, in Criminal Case No. CBU-
75283, is AFFIRMED.
SO ORDERED. 12
Aggrieved, appellant is now before us seeking the reversal of his
conviction faulting the courts below for convicting him of the crime
charged. He questions in his Supplemental Brief. (1) the lack of pre-
coordination with the PDEA regarding the buy-bust operation, (2)
the non-presentation in court of the unnamed "civilian informant" as
poseur-buyer, (3) the non-compliance by the police officers with the
prescribed procedure under Section 21, Article II of RA 9165 and
lastly, the dubious chain of custody of the subject shabu.
The Office of the Solicitor General (OSG) prays for the affirmance
of the appealed Decision arguing that the essential elements of the
offense charged had been adequately established and that the
appellant's bare denial cannot prevail over the positive and
straightforward testimonies of the police operatives who are
presumed to have performed their duties regularly.
Our Ruling
The appeal is well-taken.
Prefatorily, we stress again that generally, the trial court's findings
of fact, especially when affirmed by the CA, are entitled to great
weight, and will not be disturbed on appeal. 13 Even as this Court
must defer to this salutary rule, it must likewise pay homage to a
higher duty which is to dispense real, conscientious and honest-to-
goodness justice by conducting a thorough examination of the entire
records of the case based on the settled principle that an appeal in
a criminal case opens the whole case for review on all questions
including those not raised by the parties. 14
The appellant contends that the belated submission of the pre-
operation report to the PDEA after the buy-bust operation violates
RA 9165; and that the non-presentation of the unnamed "civilian
informant" who allegedly brokered the transaction with him casts
serious doubts on the factuality of the buy-bust operation. 15
There is no merit in this contention.
We held in People v. Abedin 16 that coordination with the PDEA is
not an indispensable requirement before police authorities may
carry out a buy-bust operation; that in fact, even the absence of
coordination with the PDEA will not invalidate a buy-bust operation.
17 Neither is the presentation of the informant indispensable to the
success in prosecuting drug-related cases. 18 Informers are almost
always never presented in court because of the need to preserve
their invaluable service to the police. Unless their testimony is
absolutely essential to the conviction of the accused, their testimony
may be dispensed with since their narrations would be merely
corroborative to the testimonies of the buy-bust team.
Adherence to the chain of custody rule
not established.
In this ultimate recourse, appellant focuses his principal argument on
the alleged failure of the prosecution to establish a continuous and
unbroken chain of custody of the seized illegal drug and the lack of
integrity of the evidence in view of the police officers' non-
compliance with Section 21, Article II of RA 9165.
"In a prosecution for illegal sale of dangerous drugs, the following
elements must be duly established: (1) proof that the transaction or
sale took place; and (2) the presentation in court of the corpus delicti
or the illicit drug as evidence." 19 The dangerous drug itself
constitutes the very corpus delicti of the offense and the fact of its
existence beyond reasonable doubt plus the fact of its delivery
and/or sale are both vital and essential to a judgment of conviction
in a criminal case. 20 And more than just the fact of sale, "[o]f prime
importance therefore . . . is that the identity of the dangerous drug
be likewise established beyond reasonable doubt. In other words, it
must be established with unwavering exactitude that the dangerous
drug presented in court as evidence against the accused is the same
as that seized from him in the first place. The chain of custody
requirement performs this function in that in ensures that unnecessary
doubts concerning the identity of the evidence are removed." 21
The Dangerous Drugs Board Regulation No. 1, Series of 2002,
defines chain of custody as "duly recorded authorized movements
and custody of seized drugs or controlled chemicals or plant sources
of dangerous drugs or laboratory equipment of each stage, from
the time of seizure/confiscation to receipt in the forensic laboratory
to safekeeping, to presentation in court for destruction."
As a method of authenticating evidence, the chain of custody rule
requires that the admission of an exhibit be preceded by evidence
sufficient to support a finding that the matter in question is what the
proponent claims it to be. It would include testimony about every link
in the chain, from the moment the item was picked up to the time it
is offered in evidence, in such a way that every person who touched
the exhibit would describe how and from whom it was received,
where it was and what happened to it while in the witness'
possession, the condition in which it was received and the condition
in which it was delivered to the next link in the chain. These witnesses
would then describe the precautions taken to ensure that there had
been no change in the condition of the item and no opportunity for
someone not in the chain to have possession of the same. aScITE
While the testimony about a perfect chain is not always the standard
because it is almost always impossible to obtain, an unbroken chain
of custody becomes indispensable and essential when the item of
real evidence is not distinctive and is not readily identifiable, or
when its condition at the time of testing or trial is critical, or when a
witness has failed to observe its uniqueness. The same standard
obtains in case the evidence is susceptible of alteration, tampering,
contamination and even substitution and exchange. In other words,
the exhibit's level of susceptibility to fungibility, alteration or
tampering — without regard to whether the same is advertent or
otherwise not — dictates the level of strictness in the application of
the chain or custody rule. 22
Measured by the foregoing yardstick, we find that the prosecution
utterly failed to establish convincingly the chain of custody of the
alleged seized plastic pack subject matter hereof. In fact only PO2
Enriquez and SPO1 Cañete testified in respect to the identity of the
alleged evidence. However, from their testimonies, the prosecution
was not able to account for the linkages in the chain while the plastic
pack was not or no longer in their respective possession.
While both witnesses testified that after the sale and apprehension
of the appellant, the poseur-buyer turned over the subject pack of
shabu to their team leader SPO1 Espenido, there is no record as to
what happened after the turn-over. SPO1 Espenido to whom the
specimen was allegedly surrendered by the poseur-buyer was not
presented in court to identify the person to whom it was given
thereafter and the condition thereof while it was in his possession
and control. The prosecution did not bother to offer any explanation
for his non-presentation as a witness. This is a significant gap in the
chain of custody of the illegal stuff.
The prosecution's cause is also marred by confusion and uncertainty
regarding the possessor of the pack of shabu when it was brought
to the police station. By PO2 Enriquez's account, it was SPO2 Nuñez
who was in possession of the same — an account which is at
loggerheads with the claim of SPO1 Cañete that he was in custody
and possession thereof and that he personally brought the same to
the police station. These police officers cannot seem to agree on a
point over which there could hardly be a disagreement. It must be
observed that SPO2 Nuñez who had supposedly taken custody of
the substance following PO2 Enriquez's account was likewise not
presented in court to testify. Worse, the prosecution did not even try
to reconcile this inconsistency. Moreover, the prosecution failed to
show how, when and from whom SPO2 Nuñez or SPO1 Cañete
received the evidence. There was no evidence on how they came
into possession of the pack of shabu. Again, this is a clear missing
link in the chain of custody of the specimen after it left the hands of
SPO1 Espenido.
We also take note that the testimonies of the prosecution witnesses
failed to identify the person to whom the specimen was given at the
police station. All that has been said is that the investigator, SPO2
Nuñez, marked the specimen. But this statement did not necessarily
mean that he was the same officer who received the same from
either PO2 Enriquez or SPO1 Cañete. In fact, there is a total want
of evidence tending to prove that fact. It must be recalled that SPO2
Nuñez did not take the witness stand to identify the specific marking
on the alleged specimen; neither did the prosecution adduce
conclusive proof as to the author of the handwriting affixed therein
and admit the same as his own handwriting.
True, PO2 Enriquez claimed that he personally delivered to the
crime laboratory the specimen attached to the letter-request;
nonetheless, he did not categorically testify that the substance
presented in court was the very same substance delivered to the
crime laboratory for analysis. In fact, going by the records neither
of the two police officers testified that the substance delivered to
the crime laboratory for chemical analysis and later presented in
court was the same substance seized from the appellant.
Nor can the prosecution gain from the testimony of the forensic
chemist PCI Salinas. The records show that there is nothing positive
and convincingly clear from the testimony of PCI Salinas. She did not
at all categorically and straightforwardly assert that the alleged
chemical substance that was submitted for laboratory examination
and thereafter presented in court was the very same substance
allegedly recovered from the appellant. If anything, the sum and
substance of her testimony is that the alleged pack of shabu
submitted to her for laboratory examination showed that it was
positive for methamphetylane hydrochloride or shabu. She never
testified where the substance came from. Her testimony was limited
only on the result of the examination she conducted and not on the
source of the substance.
"[W]hile the chain of custody should ideally be perfect [and
unbroken], in reality it is not, 'as it is almost always impossible to
obtain an unbroken chain."' 23 As such, what is of utmost importance
"is the preservation of the integrity and the evidentiary value of the
seized items as they will be used to determine the guilt or innocence
of the accused." 24 In the case at bench, this Court finds it
exceedingly difficult to believe that the integrity and evidentiary
value of the drug have been properly preserved by the
apprehending officers. The inexplicable failure of the police officers
to testify as to what they did with the alleged drug while in their
respective possession resulted in a breach or break in the chain of
custody of the drug. In some cases, 25 the Court declared that the
failure of the prosecution to offer the testimony of key witnesses to
establish a sufficiently complete chain of custody of the shabu plus
the irregular manner which plagued the handling of the evidence
before the same was offered in court, whittles down the chances of
the government to obtain a successful prosecution in a drug-related
case.
Here, apart from the utter failure of the prosecution to establish an
unbroken chain of custody, yet another procedural lapse casts
further uncertainty about the identity and integrity of the subject
shabu. We refer to the non-compliance by the buy-bust team with
the most rudimentary procedural safeguards relative to the custody
and disposition of the seized item under Section 21 (1), 26 Article II
of RA 9165. Here, the alleged, apprehending team after the
alleged initial custody and control of the drug, and after
immediately seizing and confiscating the same, never ever made a
physical inventory of the same, nor did it ever photograph the same
in the presence of the appellant from whom the alleged item was
confiscated. There was no physical inventory and photograph of the
item allegedly seized from appellant. Neither was there any
explanation offered for such failure.
While this Court in certain cases has tempered the mandate of strict
compliance with the requisite under Section 21 of RA 9165, such
liberality, as stated in the Implementing Rules and Regulations 27
can be applied only when the evidentiary value and integrity of the
illegal drug are properly preserved as we stressed in People v.
Guru. 28 In the case at bar, the evidentiary value and integrity of
the alleged illegal drug had been thoroughly compromised. Serious
uncertainty is generated on the identity of the item in view of the
broken linkages in the chain of custody. In this light, the presumption
of regularity in the performance of official duty accorded the buy-
bust team by the courts below cannot arise.
WHEREFORE, premises considered, the Decision of the Court of
Appeals in CA-G.R. CR-HC No. 00688 dated May 31, 2010 is
REVERSED and SET ASIDE. Appellant Fernando Ranche Havana
a.k.a. Fernando Ranche Abana is hereby ACQUITTED of the charge,
his guilt not having been established beyond reasonable doubt.
The Director of the Bureau of Corrections is hereby ORDERED to
immediately RELEASE the accused from custody, unless he is held for
another lawful cause. DETACa
SO ORDERED.
THIRD DIVISION
[G.R. No. 202709. July 3, 2013.]
PEOPLE OF THE PHILIPPINES, appellee, vs.
ROMEO ONIZA y ONG and MERCY ONIZA y CABARLE,
appellants.
DECISION
ABAD, J p:
This case is about the need to absolve the accused of the charges
against them because of the police officers' outright failure without
any justification to abide by the law governing the conduct of seizure
operations involving dangerous drugs.
The Facts and the Case
On June 21, 2004 the Public Prosecutors Office of Rizal filed
separate charges of possession of dangerous drugs 1 before the
Regional Trial Court (RTC) of Rizal, Branch 2, against the accused
spouses Romeo in Criminal Case 7598 and Mercy Oniza in Criminal
Case 7599. The prosecution further charged the spouses with selling
dangerous drugs in Criminal Case 7600, all allegedly in violation of
the Dangerous Drugs Act.
The prosecution's version is that at about 9:30 p.m. on June 16,
2004, PO1 Reynaldo M. Albarico, PO1 Fortunato P. Jiro III, and
PO1 Jose Gordon Antonio of the Rodriguez Police Station in Rizal
received information from a police asset that accused Mercy Oniza
was selling dangerous drugs at Phase 1-D Kasiglahan Village,
Barangay San Jose. 2 They immediately formed a team to conduct
a buy-bust operation. After coordinating its action with the Philippine
Drug Enforcement Agency, the police team proceeded to Kasiglahan
Village on board an owner-type jeep. They brought with them two
pieces of pre-marked P100 bills. 3
On arrival at the place, the team members positioned themselves at
about 15 to 20 meters from where they spotted Mercy Oniza and
a male companion, later identified as her accused husband Romeo
Oniza. The police informant approached Mercy and initiated the
purchase. 4 He handed the two marked P100 bills to her which she
in turn gave to Romeo. 5 After pocketing the money, the latter took
out a plastic sachet of white crystalline substance from his pocket
and gave it to the informant. The latter then scratched his head as a
signal for the police officers to make an arrest. 6
The police officers came out of concealment to arrest Mercy and
Romeo. 7 On seeing the police officers, however, the two quickly ran
into their house, joined by Valentino Cabarle (separately charged)
who had earlier stood nearby, and locked the door behind them.
The officers rammed the door open to get in. They apprehended
Mercy, Romeo, and Valentino. 8 Officer Jiro recovered four heat-
sealed plastic sachets believed to contain shabu from Mercy. Officer
Albarico retrieved two marked P100 bills and a similar plastic
sachet from Romeo. Officer Antonio seized an identical sachet from
Valentino. 9
The police officers brought their three captives to the police station
for investigation and booking. Officer Jiro marked all the items the
police seized and had these brought to the Philippine National Police
(PNP) Crime Laboratory for examination. 10 After forensic chemical
analysis, the contents of the sachets proved to be shabu. 11
The prosecution and the defense stipulated that the specimens that
PO1 Annalee R. Forro, a PNP forensic chemical officer, examined
were methamphetamine hydrochloride (shabu). They further
stipulated, however, that Officer Forro "could not testify on the
source and origin of the subject specimens that she had examined."
12 As a result, PO1 Forro did not testify and only her report was
adduced by the prosecution as evidence.
The evidence for the accused shows, on the other hand, that at
around 9:30 p.m. on June 16, 2004, the spouses Mercy and Romeo
were asleep at their home when Mercy was suddenly awakened by
the voice of Belen Morales calling on her from outside the house. As
Mercy peeped through the window, Belen told her that the police
had arrested and mauled Mercy's brother, Valentino. Mercy
hurriedly ran out of the house to find out what had happened to her
brother. 13
When Mercy got to where Valentino was, she saw some police
officers forcibly getting him into an owner-type jeep while Zenaida
Cabarle, Mercy and Valentino's mother, kept pulling him out of the
owner-type jeep. When Mercy approached Valentino, the police
officers told her to accompany him to the police station. This
prompted her to shout for her husband's help. 14
Meanwhile, when Romeo had awakened, he came out of the house,
and saw two police officers in black jackets, Albarico and Antonio,
who approached him. They seized and shoved him into the owner-
type jeep to join Mercy and Valentino. Romeo noticed that Valentino
was grimacing in pain, having been beaten up by the police. 15
At the police station, the police officers asked their three captives to
produce P30,000.00 in exchange for their release. 16 Officer
Antonio took out something from his pocket, showed it to them, and
told them that he would use it to press charges against them.
Afterwards, PO1 Antonio took Mercy to the kitchen room and hit her
head with two pieces of pot covers ("pinompyang"). 17
Nearly after five years of trial or on April 2, 2009 the RTC rendered
a decision 18 that found Romeo and Mercy guilty of possession of
dangerous drugs in Criminal Cases 7598 and 7599, respectively,
and imposed on them both the penalty of imprisonment of 12 years
and 1 day to 20 years and a fine of P300,000.00. Further, the trial
court found them guilty of selling dangerous drugs in Criminal Case
7600 and imposed on them both the penalty of life imprisonment
and a fine of P500,000.00. The trial court, however, acquitted
Valentino of the separate charge of possession of dangerous drugs
filed against him in Criminal Case 7597.
On appeal in CA-G.R. CR-HC 04301, the Court of Appeals (CA)
affirmed the judgments of conviction against Romeo and Mercy,
hence, the present appeal to this Court.
Issue Presented
The issue presented in this case is whether or not the prosecution
proved beyond reasonable doubt that Romeo and Mercy were in
possession of and were selling dangerous drugs when the team of
police officers arrested them on June 16, 2004.
Ruling of the Court
The law prescribes certain procedures in keeping custody and
disposition of seized dangerous drugs like the shabu that the police
supposedly confiscated from Romeo and Mercy on June 16, 2004.
Section 21 of Republic Act (R.A.) 9165 reads:
Section 21. Custody and Disposition of Confiscated, Seized,
and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous
Drugs, Controlled Precursors and Essential Chemicals,
Instruments/Paraphernalia and/or Laboratory Equipment. — The
PDEA shall take charge and have custody of all dangerous drugs,
plant sources of dangerous drugs, controlled precursors and
essential chemicals, as well as instruments/paraphernalia and/or
laboratory equipment so confiscated, seized and/or surrendered,
for proper disposition in the following manner:
(1) The apprehending team having initial custody and control
of the drugs shall, immediately after seizure and confiscation,
physically inventory and photograph the same in 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
copies of the inventory and be given a copy thereof; . . . . (Emphasis
supplied)
Compliance with the above, especially the required physical
inventory and photograph of the seized drugs in the presence of the
accused, the media, and responsible government functionaries,
would be clear evidence that the police had carried out a legitimate
buy-bust operation. Here, the prosecution was unable to adduce
such evidence, indicating that the police officers did not at all comply
with prescribed procedures. Worse, they offered no excuse or
explanation at the hearing of the case for their blatant omission of
what the law required of them.
Apart from the above, the prosecution carried the burden of
establishing the chain of custody of the dangerous drugs that the
police allegedly seized from the accused on the night of June 16,
2004. It should establish the following links in that chain of custody
of the confiscated item: first, the seizure and marking, if practicable,
of the illegal drug recovered from the accused by the apprehending
officer; second, the turnover of the illegal drug seized by the
apprehending officer to the investigating officer; third, the turnover
by the investigating officer of the illegal drug to the forensic chemist
for laboratory examination; and fourth, the turnover and submission
of the marked illegal drug seized from the forensic chemist to the
court. 19
Still, jurisprudence has established a rare exception with respect to
the first required link — immediate seizure and marking of the
seized items in the presence of the accused and others 20 — namely,
that (a) there must be justifiable grounds for non-compliance with the
procedures; and (b) the integrity and evidentiary value of the seized
items are properly preserved.
Here, the prosecution's own evidence as recited by the CA and the
RTC is that the police officers did not make a physical inventory of
the seized drugs nor did they take a picture of the same in the
presence of the accused, someone in the media, a Department of
Justice (DOJ) representative, and any elected public official.
All that Officer Albarico could say is that his companion, Officer Jiro,
marked the plastic sachets with the initials of the accused already at
the police station and then turned over the same to the desk officer
who prepared the Request for Laboratory Examination. 21 Thus:
Pros. Gonzales:
And after that, what, if any, did you do next?
PO1 Albarico:
After arresting them, we brought them to our police
station, sir.
Pros. Gonzales:
And at the station, Mr. Witness, what happened to the
items that you said was [sic] recovered from the possession of
accused Romeo?
PO1 Albarico:
We have the pieces of evidence blottered, sir.
Pros. Gonzales:
And thereafter, what happened to the evidence
gathered, Mr. Witness?
PO1 Albarico:
 PO1 Jiro marked the evidence, sir.
xxx xxx xxx
Pros. Gonzales:
Mr. Witness, those substance[s] that were marked by PO1
Jiro, what happened to them after the markings?
PO1 Albarico:
After marking the pieces of evidence, he turned them over
to the Desk Officer and prepared a request for examination and
those were brought to Camp Crame for examination, sir.
xxx xxx xxx
Pros. Gonzales:
If you know, what was the result of the request for
examination?
PO1 Albarico:
As far as we know, it is positive for methamphetamine
hydrochloride, sir.
Yet, the police officers did not bother to offer any sort of reason or
justification for their failure to make an inventory and take pictures
of the drugs immediately after their seizure in the presence of the
accused and the other persons designated by the law. Both the RTC
and the CA misapprehended the significance of such omission. It is
imperative for the prosecution to establish a justifiable cause for
non-compliance with the procedural requirements set by law. 22 The
procedures outlined in Section 21 of R.A. 9165 are not merely
empty formalities — these are safeguards against abuse, 23 the
most notorious of which is its use as a tool for extortion. 24
And what is the prosecution's evidence that the substances, which the
police chemist examined and found to be shabu, were the same
substances that the police officers allegedly seized from Romeo and
Mercy? No such evidence exists. As pointed out above, the
prosecution stipulated with the accused that the police chemist "could
not testify on the source and origin of the subject specimens that she
had examined." No police officer testified out of personal
knowledge that the substances given to the police chemist and
examined by her were the very same substances seized from the
accused.
In regard to the required presence of representatives from the DOJ
and the media and an elective official, the prosecution also did not
bother to offer any justification, even a hollow one, for failing to
comply with such requirement. What is more, the police officers could
have easily coordinated with any elected barangay official in the
conduct of the police operation in the locality.
WHEREFORE, the Court REVERSES and SETS ASIDE the February 23,
2012 Decision of the Court of Appeals in CA-G.R. CR-HC 04301,
which affirmed the April 2, 2009 Decision of the Regional Trial Court
in Criminal Cases 7598, 7599, and 7600 and, accordingly,
ACQUITS the accused-appellants Romeo Oniza y Ong and Mercy
Oniza y Cabarle of the charges against them in those cases on the
ground of reasonable doubt.
The National Police Commission is DIRECTED to INVESTIGATE PO1
Reynaldo M. Albarico, PO1 Fortunato P. Jiro III and PO1 Jose
Gordon Antonio for the possible filing of appropriate charges, if
warranted.
The Director of the Bureau of Corrections is ORDERED to immediately
RELEASE both the above accused-appellants from custody unless
they are detained for some other lawful cause.
No costs.
SO ORDERED.
SECOND DIVISION
[G.R. No. 195528. July 24, 2013.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.
JOSE CLARA y BUHAIN, accused-appellant.
DECISION
PEREZ, J p:
This is an appeal filed by herein accused Joel Clara y Buhain (Joel)
from the Decision 1 of the Court of Appeals (CA) affirming the
decision of conviction rendered by the Regional Trial Court of
Quezon City for violation of Section 5, Article II of R.A. No. 9165. 2
IcCDAS
The factual rendition of the prosecution follows:
Prosecution witness PO3 Leonardo R. Ramos (PO3 Ramos) narrated
that he acted as a poseur-buyer in a buy-bust operation conducted
by their office, the District Anti-Illegal Drug Special Task Group
(DAID-SOTG) of Quezon City on 12 September 2005. 3 He recalled
that on or about 4:00 o'clock in afternoon of the said date, a male
informant came to their office with the information that a person
named "Ningning" was selling drugs at 22-C Salvador Drive,
Balonbato, Quezon City. 4 Police team leader SPO2 Dante D.
Nagera (SPO2 Nagera) endorsed the matter to their Chief of Office
Col. Gerardo B. Ratuita (Col. Ratuita) for the conduct of a buy-bust
operation. 5 A buy-bust group was created consisting of SPO2
Nagera, PO1 Peggy Lynne V. Vargas (PO1 Vargas), PO1 Teresita
B. Reyes (PO1 Reyes), PO1 Alexander A. Jimenez (PO1 Jimenez)
and PO3 Ramos who was designated as the poseur-buyer. 6 During
the briefing, it was agreed upon that P200.00-worth of shabu would
be bought from "Ningning" by PO3 Ramos. Before leaving for their
target, PO1 Reyes prepared a Pre-Operation Report and
forwarded it to the Tactical Operation Communication of Philippine
Drug Enforcement Agency (PDEA) for coordination. 7 At 8:00 o'clock
in the evening, the team proceeded to the area on board three
vehicles: Nissan Sentra, Toyota Corolla and owner-type jeep. 8
Upon their arrival at 9:35 o'clock in the evening, PO3 Ramos and
the informant knocked on the door of the house while the rest of the
team positioned themselves ten meters away. 9 The informant
identified "Gigi" as the accused Joel, Ningning's uncle. 10 Initiating
a conversation, the informant introduced to Joel PO3 Ramos as a
buyer of P200.00-peso worth of illegal drug. When PO3 Ramos
asked for Ningning, Joel answered that she was upstairs. Joel asked
for payment and PO3 Ramos handed the P200 marked money. 11
Joel went upstairs and called Ningning. Ningning opened the door
and handed Joel a small plastic sachet of shabu which in turn was
handed to PO3 Ramos. 12 DHSEcI
Thereafter, PO3 Ramos touched his head as a pre-arranged signal
to prompt the back-up police officers of the consummation of the
illegal sale. Immediately, the rest of the team rushed to the place to
arrest Joel. 13 Joel tried to close the door to prevent the police
officers from entering the house but PO3 Ramos was able to grab
him. SPO2 Nagera quickly went upstairs to arrest Ningning but the
latter was able to escape apprehension. 14 PO3 Ramos
immediately frisked Joel inside the house but failed to recover
anything from him; the marked money was given to Ningning when
Joel went upstairs to get the plastic sachet. 15
Joel was brought to the police station and was informed by PO1
Jimenez of his constitutional rights as a consequence of his arrest. 16
Afterwards, the small plastic sachet recovered was marked by PO1
Jimenez inside the station and an inventory receipt was prepared.
17 PO3 Ramos clarified that the plastic sachet was in the possession
of PO1 Jimenez from the place of arrest until arrival at the police
station. PO3 Ramos added that PO1 Jimenez was present at the
time of arrest which explained his possession of the plastic sachet
containing shabu. 18
Inside the courtroom, PO3 Ramos identified Joel as the one involved
in the illegal transaction. 19 He also identified the small plastic
sachet of shabu as the subject of the illegal transaction through the
marking "LRR" he placed on it. 20 He testified that he brought the
plastic sachet containing the specimen to the crime laboratory for
examination 21 where it was tested positive for methamphetamine
hydrochloride, as certified by the examining Forensic Chemist Engr.
Leonard M. Jabonillo (Forensic Chemist Jabonillo) of Central Police
District Crime Laboratory in his Chemistry Report. 22 CAacTH
SPO2 Nagera was also called to the witness stand to present his
version of the events. However, some inconsistencies surfaced during
his examination at the witness stand.
When asked about the gender of the informant who came to their
office, he answered that the informant was a female, contradicting
the statement of PO3 Ramos. 23 He also differed from the statement
of PO3 Ramos when he testified that only two modes of
transportation, instead of three, were used by the buy-bust team in
proceeding to the target area, one Nissan Maxima and one owner-
type jeep. 24 He also had difficulty in identifying the accused inside
the court room when he was asked upon by the prosecutor to do so.
25
Further contradiction was made when SPO2 Nagera narrated that
PO3 Ramos was the one holding the plastic sachet before it was
turned over to PO1 Jimenez for investigation. 26 He also admitted
in his cross examination that he never saw Ningning during the entire
buy-bust operation. 27 Finally, when asked about on who placed
the initial "LRR" on the plastic sachet, he positively identified that it
was the investigator who put the same. 28 EcHIDT
PO1 Jimenez was also presented in court as a prosecution witness
to give details of the buy-bust operation. His version, however, also
differed from the versions presented by PO3 Ramos and SPO2
Nagera. He testified that the plastic sachet confiscated was already
marked by the apprehending officers when it was turned over to
him for investigation, a contradiction of the statements of both PO3
Ramos and SPO2 Nagera that it was him who marked the plastic
sachet with the initial "LRR." 29 He positively identified that he saw
the item being marked by the apprehending officers in their office.
30
The defense interposed denial.
Accused Joel denied any involvement in the buy-bust operation. He
recalled that he was inside his house sleeping between 9:00 to
10:00 o'clock in the evening of 12 September 2005 when five
uniformed police officers entered his house. 31 They got hold of his
arm and frisked him but failed to recover anything. 32 The police
officers did not inform him of the reason for his arrest; neither did
they recite his constitutional rights. Afterwards, he was made to ride
an owner type vehicle and was taken to the police station where he
was only asked for his name. 33 He denied having sold drugs and
having seen the marked money and plastic sachet containing shabu.
34 aEcDTC
On cross examination, Joel was also inconsistent in portions of his
testimony. He testified that all of his siblings were in the province
and his only companions in the house at the time of the arrest were
his nephew and niece. 35 However, when asked why the door was
still open at around 10:00 o'clock in the evening, he replied that he
was waiting for his sister. 36 He also contradicted his earlier
statement that he was sleeping with his nephew and niece downstairs
when in his cross examination he said that his niece was staying on
the second floor of the house at the time of the arrival of the police
officers. 37
Joel was eventually charged with Illegal Sale of Dangerous Drugs
punishable under Section 5, Article II of R.A. No. 9165 before the
Prosecutor's Office of Quezon City. The accusatory portion of the
Information reads:
Criminal Case No. 05-136719
That on or about the 12th day of September, 2005, in Quezon City,
Philippines, the said accused, not being authorized by law to sell,
dispense, deliver, transport or distribute any dangerous drug, did,
then and there wilfully and unlawfully sell, dispense, deliver,
transport, distribute or act as broker in the said transaction, ZERO
POINT ZERO SEVEN (0.07) gram of [Methamphetamine]
Hydrochloride (shabu), a dangerous drug. 38 STHAID
When arraigned, Joel pleaded not guilty to the offense charged.
39
During pre-trial, it was agreed upon by both parties that Forensic
Chemist Jabonillo had no personal knowledge as to how the plastic
sachet containing specimen positive for illegal drug came to of
police officers' possession. The forensic chemist merely examined the
specimen and found it to be positive for methamphetamine
hydrochloride. As a consequence of these stipulations, his testimony
was dispensed with by the court. 40
Ruling of the Trial Court
The trial court on 21 March 2007 found the accused guilty of the
offense charged. The dispositive portion of the decision 41 reads:
ACCORDINGLY, judgment is rendered finding the accused JOEL
CLARA Y BUHAIN GUILTY beyond reasonable of the crime [in]
violation of Sec. 5 of R.A. 9165 as charged (for drug pushing) and
he is sentenced to suffer the prescribed jail term of Life Imprisonment
and pay a fine of P500,000.00.
The shabu weighing 0.07 gram involved in this case is ordered presumption of innocence by presenting the quantum of evidence
transmitted to the PDEA thru DDB for disposal in accordance with required.
R.A. 9165. 42 ACDTcE
Proof beyond reasonable doubt does not mean such a degree of
The trial court ruled that Joel directly dealt with the poseur buyer proof as, excluding possibility of error, produces absolute certainty.
and participated in all the stages of the illegal sale. It found Moral certainty only is required, or that degree of proof which
conspiracy between Joel and Ningning. It pointed out that Ningning produces conviction in an unprejudiced mind. 48 It must rest on its
was able to escape the police dragnet while Joel was being own merits and must not rely on the weakness of the defense. If the
arrested because of her familiarity as a drug operator with police prosecution fails to meet the required amount of evidence, the
operations. defense may logically not even present evidence on its own behalf,
in which case, the presumption prevails and the accused should
The police operation and its coordination with the operatives of the necessarily be acquitted. 49
PDEA would be recognized by the appellate court as legally
performed. 43 On the contrary the prosecution's scenario that the In this case, the prosecution failed to overcome such presumption
police officers entered Joel's residence and hauled him out with no when it presented inconsistent versions of an illegal sale.
reason at all was found to be improbable. 44
PO3 Ramos identified Joel as the seller who sold to him a small
Ruling of the Court of Appeals plastic sachet containing shabu in exchange of two hundred pesos.
We quote the relevant portions: HIAEaC
In affirming the ruling of the trial court, the appellate court ruled
that all the elements of an illegal sale of dangerous drugs were FISCAL (to witness)
present. 45 First, Joel, as the seller of illegal drug, was positively
identified by the poseur buyer and the police officers; Second, the Q: What happened there?
confiscated white crystalline substance which was found by the PNP A: When we reached the house sir, we knocked at the door
crime laboratory as positive for Methamphetamine Hydrochloride and alias Gigi open (sic) it.
which is a dangerous drug was presented during trial; and Lastly,
the illegal sale was for a consideration of P200.00 given by PO3 xxx xxx xxx
Ramos as poseur buyer. The appellate court further held that the
non-presentation of the marked money was not fatal since the Q: What was the conversation with you during that time?
prosecution witnesses were able to establish that the P200.00 bill A: The informant first introduced me to Gigi that I will be the
used to purchase the illegal drug was in the possession of Ningning one to buy shabu.
who was able to evade arrest. 46 SATDEI
Q: What was the answer of Gigi at that time?
Our Ruling
A: He asked how much.
After a careful review of the evidence, we resolve to reverse the
ruling of conviction and render a judgment of acquittal in favor of Q: What was your answer?
the accused.
A: I said 'dos'.
In his Brief, the accused-appellant contested his conviction due to the
inconsistencies in the prosecution's presentation of a supposed buy- Q: After informing him that you intend to buy dos of illegal
bust operation, coupled with its failure to establish with certainty the drug, what happened?
chain of custody of evidence. He also argued against the
A: I first asked where is Ningning. CSEHIa
presumption of regularity of performance of duties. Finally, to
substantiate his innocence, he pointed out that he was not even the Q: What was the answer of Gigi?
target person in the PDEA Coordination Report and denied any
conspiracy and involvement with such target person named A: He said that she was upstairs.
"Ningning." 47
Q: What happened after that?
Inspite of the imperfect narration of events by the accused Joel, we
A: He asked for my money, sir.
are constrained to render a judgment of acquittal due to the lapses
of the prosecution that led to its failure to discharge the burden of Q: Did you give the P200.00.
proof beyond reasonable doubt that the accused committed the
crime. A: Yes sir, I gave the money.

In order to successfully prosecute an offense of illegal sale of Q: After giving that money to Gigi, what happened after
dangerous drugs, like shabu, the following elements must first be that?
established: (1) the identity of the buyer and the seller, the object
A: He called Ningning from up stair (sic).
and consideration of the sale; and (2) the delivery of the thing sold
and the payment therefor. TAaHIE Q: Did Ningning go to the place where you were talking with
Gigi at that time?
It is basic in criminal prosecutions that an accused is presumed
innocent of the charge laid unless the contrary is proven beyond A: No sir, she just open (sic) the door and handed the sachet
reasonable doubt. The prosecution has the burden to overcome such of shabu.
xxx xxx xxx A: LRR. 53 (Emphasis supplied)
Q: When he received that from Ningning at that time, what xxx xxx xxx
did you do? EcAHDT
Q: You said that the investigator placed the marking in the
A: After Gigi got it he gave it to me, sir. transparent plastic sachet and likewise he was the one who made
the inventory receipt. In what particular place that he prepared
Q: Can you describe that item you received from Gigi that this particular document?
came from Ningning at that time?
A: At the area, sir.
A: Yes sir.
Q: What do you mean by area? HAcaCS
Q: Can you describe?
A: In front of the house of the accused, sir.
A: Yes sir, just a small plastic sachet. 50
Q: What is the name of that investigator again?
PO3 Ramos initially testified that he placed his marking on the
small plastic sachet he was able to buy from Joel: A: Alexander Jimenez, sir. 54 (Emphasis supplied)
Q: If that small plastic sachet is shown to you can you identify The testimony of PO3 Ramos, which apparently was given as proof
the specimen? of all the elements that constitute an illegal sale of drug is
however, inconsistent on material points from the recollection of
A: Yes, sir. events of PO3 Ramos, SPO2 Nagera and PO1 Jimenez regarding
Q: Why? the marking, handling and turnover of the plastic sachet containing
the dangerous drug of shabu.
A: Because I placed my marking.
SPO2 Nagera narrated that it was PO1 Jimenez who marked the
Q: What marking did you place? aIEDAC plastic sachet after it was handed by PO3 Ramos:

A: LRR. Q: What did the investigator do to shabu, Mr. Witness?

Q: Showing to you this transparent plastic sachet containing A: They placed their initial and prepared request for
illegal drug, what can you say about that, what is the relation of examination address to the Crime Laboratory sir. 55 (Emphasis
that transparent plastic sachet to the plastic sachet you have just supplied) IcTEAD
mentioned?
xxx xxx xxx
A: That is the sachet I was able to buy, sir.
Q: Where was PO3 Ramos when that plastic sachet, when
Q: Where is the marking? the police investigator put the initial, Mr. Witness?

A: It was on top of the plastic sachet. 51 (Emphasis supplied) A: We were there sir. 56 (Emphasis supplied)

However, he would later present a new version on who marked the However, PO1 Jimenez later testified that it was PO3 Ramos who
plastic sachet: marked the plastic sachet in their office.

Q: Now, going [back] to the police station, other than Q: Being the investigator you saw the item confiscated?
searching, what other matters [were] taken during the arrest?
A: Yes, sir.
A: The evidence that I was able to get from Ningning and it
was the investigator who marked it. Q: Was it already marked when it was received by you?

Q: Other than putting the initial on the transparent plastic A: It was already marked by the apprehending officers.
sachet immediately after the arrest Mr. Witness, what was the SOP Q: Did you [see] it marked by the apprehending officer?
in a buy-bust operation, after taking or receiving the item from the
accused during the arrest? CSHEAI A: Yes, sir.
A: We made the inventory receipt, sir. 52 (Emphasis Q: Where?
supplied)
A: In our office. 57 (Emphasis supplied) aIAEcD
xxx xxx xxx
Contradictory statements were further made as to who between
Q: . . . . You said that it was the investigator who made the PO3 Ramos and PO1 Jimenez held the shabu from the time of the
marking in the transparent plastic sachet, where were you when the arrest until arrival at the police station. PO3 Ramos pointed to
marking was placed on it? PO1 Jimenez in his direct examination:
A: I was in front of the investigator. Q: You said immediately after arresting and searching the
accused in this case you said that you brought the accused to the
Q: What was the marking placed? police station, who was in possession of the transparent plastic
sachet from where you received that transparent plastic sachet in
exchange to P200.00 going to the police station Mr. Witness?
A: The investigator, sir.
Q: You mean to say that investigator was present when the
accused was arrested in this case?
A: Yes sir, he was with us. 58 (Emphasis supplied)
However, SPO2 Nagera pointed to PO3 Ramos as the one in
possession:
Q: What about the shabu, who was holding it in going to the
police station, Mr. Witness?
A: Ramos, sir.
Q: What happened next, Mr. Witness? ScTaEA
A: It was turn (sic) over to the police investigator, sir. 59
(Emphasis supplied)
The clear inconsistency in the presentation of facts is fatal. It creates
doubts whether the transaction really occurred or not. Though Joel's
denial as a defense is weak, such cannot relieve the prosecution the
burden of presenting proof beyond reasonable doubt that an illegal
transaction actually took place. 60
Inconsistencies of the prosecution witnesses referring to the events
that transpired in the buy-bust operation can overturn the judgment
of conviction. As held in Zaragga v. People, 61 material
inconsistencies with regard to when and where the markings on the
shabu were made and the lack of inventory on the seized drugs
created reasonable doubt as to the identity of the corpus delicti.
Prosecution's failure to indubitably show the identity of the shabu led
to the acquittal of the accused in that case. 62
Inconsistencies and discrepancies referring to minor details and not
upon the basic aspect of the crime do not diminish the witnesses'
credibility. If the cited inconsistency has nothing to do with the
elements of a crime, it does not stand as a ground to reverse a
conviction. 63 However, in this case, the material inconsistencies are
furthered by inconsistencies of the police officers on minor details.
Referring back to the narration of circumstances of the buy-bust
operation, SPO2 Nagera was asked about the gender of the
informant who went to their office to report about the illegal
activities committed by Ningning. He readily answered that the
informant was a female. 64 PO3 Ramos in turn, when asked to
describe what happened in the afternoon before the buy-bust
operation, testified that a male informant came to their office to
report about a person selling illegal drugs. 65 aIcETS
These conflicting statements of the prosecution effectively broke the
chain of custody of evidence of the sale of dangerous drug.
Section 21 (a) of the Implementing Rules and Regulations (IRR) of
R.A. No. 9165 provides for the procedure to be observed in
preserving the integrity of chain of custody:
Section 21. Custody and Disposition of Confiscated, Seized
and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous
Drugs, Controlled Precursors and Essential Chemicals,
Instruments/Paraphernalia and/or Laboratory Equipment. — The
PDEA shall take charge and have custody of all dangerous drugs,
plant sources of dangerous drugs, controlled precursors and
essential chemicals, as well as instruments/paraphernalia and/or
laboratory so confiscated, seized and/or surrendered, for
disposition in the following manner:
(a) The apprehending officer/team having initial custody and
control of the drugs shall, immediately after seizure and confiscation,
physically inventory and photograph the same in 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 media and the Department of Justice (DOJ),
and any elected public official who shall be required to sign the
copies of the inventory and be given copy thereof. Provided, that
the physical inventory and the photograph shall be conducted at the
place where the search warrant is served; or at least the nearest
police station or at the nearest office of the apprehending
officer/team, whichever is practicable, in case of warrantless
seizures; Provided, further, that non-compliance with these
requirements under justifiable grounds, as long as the integrity and
evidentiary value of the seized items are properly preserved by the
apprehending team/officer, shall not render void and invalid such
seizures of and custody over said items. DIECTc
"Chain of custody" means the duly recorded authorized movements
and custody of seized drugs or controlled chemicals or plant sources
of dangerous drugs or laboratory equipment of each stage, from
the time of seizure/confiscation to receipt in the forensic laboratory
to safekeeping to presentation in court and finally for destruction.
Such record of movements and custody of seized item shall include
the identity and signature of the person who held temporary custody
of the seized item, the date and time when such transfer of custody
were made in the course of safekeeping and use in court as
evidence, and the final disposition. 66
To establish the chain of custody in a buy-bust operation, the
prosecution must establish the following links, namely: First, the
seizure and marking, if practicable, of the illegal drug recovered
from the accused by the apprehending officer; Second, the turnover
of the illegal drug seized by the apprehending officer to the
investigating officer; Third, the turnover by the investigating officer
of the illegal drug to the forensic chemist for laboratory
examination; and Fourth, the turnover and submission of the marked
illegal drug seized by the forensic chemist to the court. 67 cISDHE
The "objective test" in determining the credibility of prosecution
witnesses regarding the conduct of buy-bust operation provides that
it is the duty of the prosecution to present a complete picture
detailing the buy-bust operation — from the initial contact between
the poseur-buyer and the pusher, the offer to purchase, the promise
or payment of the consideration, until the consummation of the sale
by the delivery of the illegal subject of sale. 68 The manner by which
the initial contact was made, the offer to purchase the drug, the
payment of the buy-bust money, and the delivery of the illegal drug
must be the subject of strict scrutiny by courts to insure that law-
abiding citizens are not unlawfully induced to commit an offense. 69
In view of these guiding principles, we rule that the prosecution
failed to present a clear picture on how the police officers seized
and marked the illegal drug recovered by the apprehending officer
and how the specimen was turned over by the apprehending officer
to the investigating officer.
As to the first link of marking, the three police officers failed to
agree on who among them marked the plastic sachet, which is highly
improbable if they really had a clear grasp on what really
transpired on the day of operation.
PO3 Ramos testified that he placed his marking on the small plastic
sachet but recanted his previous statement at the latter part of the
examination and pointed out that it was the investigator PO1
Jimenez who put the marking in front of him at the area of arrest.
70 SPO2 Nagera in his testimony confirmed that it was PO1 Jimenez
who put marking on the plastic sachet. 71 However, PO1 Jimenez in
his testimony clarified that the item confiscated were already
marked by the apprehending officers when it was turned over to
him in their office. 72 DCIEac
Likewise, they cannot seem to agree on the second link on who
among them held the item confiscated from the time of arrest and
confiscation until it was turned over to the investigator and the place
where it was turned over.
PO3 Ramos positively pointed that it was PO1 Jimenez who took
possession of the item from the time of the arrest until arrival at the
police station. 73 However, when SPO2 Nagera was asked, he
pointed out that it was PO3 Ramos who held the item from the time
of the arrest until they reached the police where it was turned over
to Jimenez for investigation. 74
In Malillin v. People, 75 it was explained that the chain of custody
rule includes testimony about every link in the chain, from the moment
the item was picked up to the time it was offered in evidence, in such
a way that every person who touched the exhibit would describe
how and from whom it was received, where it was and what
happened to it while in the witness' possession, the condition in which
it was received and the condition in which it was delivered to the
next link in the chain. 76
The inconsistent statements of the police officers generated doubt on
whether the identity of the evidence seized upon apprehension is the
same evidence subjected to marking and inventory then given to the
Jimenez for investigation and eventually submitted by PO3 Ramos
for examination by the forensic chemist. HaIATC
The prosecution cannot rely on the saving clause provided under
Section 21 (a) of the IRR that non-compliance with the legal
requirements shall not render void and invalid seizures of and
custody over said items. This saving clause is applicable only if
prosecution was able to prove the twin conditions of (a) existence of
justifiable grounds and (b) preservation of the integrity and the
evidentiary value of the items. 77 The procedural lapses in this case
put to doubt the integrity of the items presented in court.
The People, through the Office of the Solicitor General, is adamant
in its argument that there is a presumption of regularity in the
performance of duty by police officers conducting buy-bust
operation.
We agree but with qualification.
In numerous cases, we were inclined to uphold the presumption of
regularity in the performance of duty of public officers. 78 However,
this is not a hard-and-fast rule. It does not mean that we straight
away and without a blink of the eye rule on the regularity of their
performance of duties. We at all times harmonize the interest of the
accused alongside the interest of the State. DAaIHT
Inconsistencies committed by the police officers amounting to
procedural lapses in observing the chain of custody of evidence
requirement effectively negated this presumption. Their inaccurate
recall of events amounted to irregularities that affected the
presumption and tilted the evidence in favor of the accused. The
absence of improper motive tends to sustain inexistence but does not
absolutely rule out false charges.
In case of conflict between the presumption of regularity of police
officers and the presumption of innocence of the accused, we rule
that the latter must prevail as the law imposes upon the prosecution
the highest degree of proof of evidence to sustain conviction. 79
Due to foregoing flagrant inconsistencies in the testimonies of police
officers which directly constitute the recollection of events of buy-
bust together and failure of observance of chain of custody of
evidence which effectively broke the links to sustain conviction, we
rule for the acquittal of the accused.
WHEREFORE, the appeal is GRANTED. The 4 August 2010 Decision
of the Court of Appeals in CA-G.R. CR-H.C. No. 02714 affirming
the judgment of conviction dated 21 March 2007 of the Regional
Trial Court, Branch 103 of Quezon City is hereby REVERSED and SET
ASIDE. Accused-appellant JOSE CLARA y BUHAIN is hereby
ACQUITTED and ordered immediately released from detention
unless his continued confinement is warranted for some other cause
or ground.
SO ORDERED. SDHITE
SECOND DIVISION
[G.R. No. 199219. April 3, 2013.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.
GERRY OCTAVIO Y FLORENDO and REYNALDO CARIÑO Y
MARTIR, accused-appellants.
DECISION
PEREZ, J p:
For review of this Court is the appeal filed by Gerry Octavio
(Octavio) and Reynaldo Cariño (Cariño) assailing the 29 March
2011 Decision 1 of the Court of Appeals (CA) in CA-G.R. CR-HC No.
03900. The CA affirmed the Decision of the Regional Trial Court
(RTC), Branch 65, Makati City finding both accused guilty of
violating Article II of Republic Act (R.A.) No. 9165, otherwise known
as the Comprehensive Drugs Act of 2002. STADIH
The Antecedents
On 21 August 2007, three (3) separate Informations were filed
before the Regional Trial Court (RTC), Makati City for violations of
R.A. No. 9165. The first information charges Gerry Octavio y
Florendo with violation of Section 5 thereof in the following manner:
CRIMINAL CASE NO. 07-1580
That on or about the 16th day of August, 2007, in the City of Makati,
Metro Manila, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, without the necessary
license or prescription and without being authorized by law, did then
and there willfully, unlawfully and feloniously sell, deliver and give
away Php200.00 worth of [Methamphetamine] Hydrochloride
(Shabu) weighing zero point zero two (0.02) gram, a dangerous
drug. 2
The second information charges the same accused with violation of
Section 11 of the same law allegedly committed as
follows: CDHacE
CRIMINAL CASE NO. 07-1581
That on or about the 16th day of August, 2007, in the City of Makati,
Metro Manila, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, not being lawfully
authorized to possess and/or use dangerous drugs and without any
license or proper prescription, did then and there willfully, unlawfully
and feloniously have in his possession, custody and control two (2)
plastic sachets of Methamphetamine Hydrochloride (Shabu) each
weighing zero point zero two (0.02) gram or a total of zero point
zero four (0.04) gram, which is a dangerous drug, in violation of the
aforesaid law. 3
The third information charges Reynaldo Cariño y Martir (Cariño) of
violating Section 11 of R.A. No. 9165, to wit:
CRIMINAL CASE NO. 07-1582
That on or about the 16th day of August, 2007, in the City of Makati,
Metro Manila, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, not being lawfully
authorized to possess and/or use dangerous drugs and without any
license or proper prescription, did then and there willfully, unlawfully
and feloniously have in his possession, custody and control two (2)
plastic sachets of [Methamphetamine] Hydrochloride (Shabu) each
weighing zero point zero two (0.02) gram or a total of zero point
zero four (0.04) gram, which is a dangerous drug, in violation of the
aforesaid law. 4 cEaTHD
Version of the Prosecution:
At around 7:00 o'clock in evening of 16 August 2007, an informant
went to the Office of the Makati Anti-Drug Abuse Council (MADAC)
to report the alleged rampant illegal drug trafficking activities of
Gerry Octavio alias "Buboy" at Pateros Street, Barangay Olympia,
Makati City. 5
On the basis of this report, an anti-narcotics team was formed to
conduct a buy-bust operation with MADAC operatives Danilo Baysa
(Baysa) and Danilo Sumudlayon (Sumudlayon) as the designated
poseur-buyer and immediate back-up, respectively. Two (2) pieces
of One Hundred Peso bills were pre-marked to be utilized as buy-
bust money. Proper coordination was made with the Philippine Drug
Enforcement Agency (PDEA) before the team, together with the
asset, proceeded to the target area. 6
Upon arrival at the designated area, the team spotted Octavio
conversing with another male person along an alley. MADAC
operative Baysa and the asset approached the duo while the rest
of the team strategically positioned themselves. The asset, who was
familiar with the subject, introduced MADAC operative Baysa as a
"scorer" or user of shabu. The other male person, however, tried to
convince MADAC operative Baysa to buy shabu from him instead,
at the same time showing two (2) pieces of small heat-sealed
transparent plastic sachets containing suspected shabu. The subject
then introduced his companion to MADAC operative Baysa as alias
"Nano" before asking him how much he wanted to purchase. MADAC
operative Baysa intimated that he needed P200.00 worth of shabu,
while simultaneously handing over the marked money to the subject
who, in turn, gave him one (1) small heat-sealed transparent plastic
sachet containing suspected shabu. cADEIa
The transaction having been consummated, MADAC operative Baysa
executed the pre-arranged signal to the rest of the team for
assistance. Taking their cue, [PO1 Michelle V. Gimena] (PO1
Gimena) and MADAC operative Sumudlayon rushed to the scene.
Meanwhile, MADAC operative Baysa introduced himself before
effecting the arrest of the subject, who was later identified as the
herein accused Gerry Octavio y Florendo. A routine body search
upon his person yielded the marked money, two (2) pieces of small
plastic sachets containing suspected shabu and another two (2) P100
bills. MADAC operative Sumudlayon, on the other hand, was able to
arrest alias "Nano," who was later identified as the herein accused
Reynaldo Cariño y Martir. Two (2) pieces of heat-sealed
transparent plastic sachets containing the same illegal substance
were recovered from his possession.
Thereafter, both of the accused, as well as the confiscated items
were brought to the SAID-SOTF office for further investigation and
later to the PNP Crime Laboratory for drug test and examination,
respectively. 7
Version of the Defense
Both accused vehemently denied the charges against them. Accused
Cariño maintained that at around 6:00 o'clock in the evening of 17
August 2007, he was resting inside his house when four (4) men
suddenly entered. They asked him if he was Cesar Martir, referring
to his cousin who resided next door. When he did not respond, they
handcuffed and boarded him inside their vehicle. One of those on
board was MADAC operative Ed Monteza who previously invited
him to the barangay hall in connection with an investigation
regarding persons suspected to be drug peddlers within the
neighborhood. Upon seeing him, MADAC Ed Monteza allegedly told
his companions that they arrested the wrong person ("Hindi iyan ang
target natin.") Thus, the men returned to the house of Cesar Martir
but the latter was already nowhere in sight. They later proceeded
to the SAID-SOTF and MADAC office, passing through Pateros
Street, Brgy. Olympia, Makati City, where his co-accused Gerry
Octavio was also arrested. TECcHA
For his part, accused Octavio narrated that at around 6:30 o'clock
in the evening of 16 August 2007, he was walking along Pateros
Street on his way to the house of Sylvia Lopez. Since he worked as
a car painter, he was supposed to estimate the cost of materials
needed to repaint her vehicle. Along the way, he caught sight of an
incoming Mitsubishi L-300 van. When it stopped in front of him, two
(2) armed men alighted therefrom and wanted to know where he
was going. They likewise accused him of using illegal drugs ("Siguro
i-iscore ka, ano?"). Although he denied the accusation, they
handcuffed and boarded him just the same inside their vehicle. Once
inside, he saw MADAC operative Eduardo Monteza who arrested
him sometime in 2003. He likewise saw his co-accused Reynaldo
Cariño already on board the van. Upon arrival at the SAID-SOTF
office, the men asked if they knew the whereabouts of Cesar Martir.
They allegedly threatened to file charges against the accused if
they refused to provide any information about him. Since the
accused were unable to give any information, an investigator
accordingly produced plastic sachets of shabu which were allegedly
recovered from them. 8
Upon arraignment, both accused pleaded not guilty to the offenses
charged. After pre-trial, trial on the merits ensued. IAcTaC
Ruling of the RTC
On 23 March 2009, the trial court rendered a decision finding both
accused guilty beyond reasonable doubt of the offenses charged.
In Criminal Case No. 07-1580, accused Octavio was sentenced to
suffer the penalty of life imprisonment and to pay a fine of
P500,000.00. In Criminal Case No. 07-1581, he was sentenced to
suffer the penalty of imprisonment of twelve (12) years and one (1)
day as minimum, to fourteen years (14) and eight (8) months as
maximum and to pay a fine of P300,000.00. Cariño, for his part,
was sentenced in Criminal Case No. 07-1582 to suffer the penalty
of imprisonment of twelve (12) years and one (1) day as minimum,
to fourteen years (14) and eight (8) months as maximum and to pay
a fine of P300,000.00. 9
The RTC found that the prosecution succeeded in proving beyond
reasonable doubt the guilt of the two accused for violation of
Sections 5 and 11, Article II, R.A. No. 9165. It ruled that the evidence
presented during the trial adequately established that a valid buy-
bust operation was conducted by the operatives of the MADAC, as
well as the SAID-SOTF, Makati City on 16 August 2007 upon proper
coordination with the PDEA. 10 On the other hand, accused Octavio
and Cariño failed to present substantial evidence to establish their
defense of frame-up. The RTC ruled that frame-up, as advanced by
the herein accused, is generally looked upon with caution by the
court because it is easy to contrive and difficult to disprove. Like
alibi, frame-up as a defense had invariably been viewed with
disfavor as it is common and standard line of defense in most
prosecutions arising from violation of the Dangerous Drugs Act. 11
aTCADc
The Ruling of the Court of Appeals
The CA affirmed the decision of the RTC, upon a finding that all of
the elements of illegal sale and illegal possession of dangerous drug
have been sufficiently established by the prosecution. It found
credible the statements of prosecution witnesses Baysa, Sumudlayon
and Barangay Captain Victor del Prado (Barangay Captain Del
Prado) about what transpired during and after the buy-bust
operation. Further, it ruled that the prosecution has proven as
unbroken the chain of custody of evidence. The CA likewise upheld
the findings of the trial court that the buy-bust operation conducted
enjoyed the presumption of regularity, absent any showing of ill-
motive on the part of the police operatives who conducted the same.
The CA found accused-appellants' defenses of denial and frame-up
unconvincing and lacked strong corroboration. 12
ISSUE
Accused-appellants raised in their brief a lone error on the part of
the appellate court, to wit: TAIESD
The court-a-quo gravely erred in finding the accused-appellants
guilty beyond reasonable doubt of the crime charged. 13
Our Ruling
The appeal is bereft of merit.
Accused-appellants submit that the trial court failed to consider the
procedural flaws committed by the arresting officers in the seizure
and custody of drugs as embodied in Section 21, paragraph 1,
Article II, R.A. No. 9165. 14 Accused-appellants allege that no
photograph was taken of the items seized from them. Further,
Barangay Captain Del Prado, an elected public official, was not
present during the alleged buy-bust operation. He was only asked
to sign the inventory of the seized items shortly after his arrival at
the scene of the buy-bust operation. Thus, he has no personal
knowledge as to whether the drugs allegedly seized from the
accused-appellants were indeed recovered from them. Accused-
appellants maintain that such failure created a cloud of doubt as to
whether the alleged shabu seized from them were the same ones
forwarded by the apprehending officers to the investigating officer,
to the crime laboratory for examination and later presented in court.
15
Relevant to accused-appellants' case is the procedure to be
followed in the custody and handling of the seized dangerous drugs
as outlined in Section 21, paragraph 1, Article II, R.A. No. 9165,
which reads: HCaEAT
(1) The apprehending team having initial custody and control
of the drugs shall, immediately after seizure and confiscation,
physically inventory and photograph the same in 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
copies of the inventory and be given a copy thereof[.]
This provision is elaborated in Section 21 (a), Article II of the
Implementing Rules and Regulations of R.A. No. 9165, which states:
(a) The apprehending officer/team having initial custody and
control of the drugs shall, immediately after seizure and confiscation,
physically inventory and photograph the same in 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
copies of the inventory and be given a copy thereof: Provided, that
the physical inventory and photograph shall be conducted at the
place where the search warrant is served; or at the nearest police
station or at the nearest office of the apprehending officer/team,
whichever is practicable, in case of warrantless seizures; Provided,
further, that non-compliance with these requirements under
justifiable grounds, as long as the integrity and the evidentiary value
of the seized items are properly preserved by the apprehending
officer/team, shall not render void and invalid such seizures of and
custody over said items[.] EDcICT
Clearly, there is nothing in the aforesaid law or its implementing
rules which require the presence of the elected public official during
the buy-bust operation. It is enough that he is present during the
physical inventory immediately conducted after the seizure and
confiscation of the drugs and he signs the copies of the inventory and
is given a copy thereof.
During the cross-examination by the defense counsel, Barangay
Captain Del Prado testified as follows:
Q: Mr. Witness, you mentioned it was evening time when compliance with the requirement of Section 21 with regard to the
Eduardo Monteza called you? presence and participation of the elected public official.
A: Yes, sir. Furthermore, this Court has consistently ruled that even if the
arresting officers failed to take a photograph of the seized drugs
Q: What was the date again? as required under Section 21 of R.A. No. 9165, such procedural
A: August 16 think. lapse is not fatal and will not render the items seized inadmissible in
evidence. 17 What is of utmost importance is the preservation of the
Q: Am I correct to say that Eduardo Monteza called you up integrity and evidentiary value of the seized items, as the same
regarding the arrest of the suspect in this case? would be utilized in the determination of the guilt or innocence of
the accused. 18 In other words, to be admissible in evidence, the
A: Yes, sir. SHECcT prosecution must be able to present through records or testimony,
Q: When you proceeded to the place, it was designated by the whereabouts of the dangerous drugs from the time these were
Ed Monteza, the place you would be? seized from the accused by the arresting officers; turned-over to the
investigating officer; forwarded to the laboratory for determination
A: They told me the site of apprehension because I know the of their composition; and up to the time these are offered in
place of operation, sir. evidence. For as long as the chain of custody remains unbroken, as
in this case, even though the procedural requirements provided for
THE COURT: in Sec. 21 of R.A. No. 9165 was not faithfully observed, the guilt of
the accused will not be affected. 19 ScaCEH
Q: Where was the area of operation?
The integrity of the evidence is presumed to have been preserved
A: Pateros Street Barangay Olympia near Osmeña Street.
unless there is a showing of bad faith, ill will, or proof that the
Q: You said that some items were shown to you, will you please evidence has been tampered with. Appellants bear the burden of
enlighten us what are these items? showing that the evidence was tampered or meddled with in order
to overcome the presumption of regularity in the handling of exhibits
A: I remember four (4) items in the inventory receipt that I by public officers and the presumption that public officers properly
signed, the first item consists of five (5) transparent plastic sachets discharged their duties. 20 Appellants in this case failed to present
containing suspected shabu, one with marking 'BUBOY', the subject any plausible reason to impute ill motive on the part of the arresting
which was bought from Buboy, then 2 plastic sachets with marking officers. Thus, the testimonies of the apprehending officers deserve
'BUBOY' 1 and 2, those recovered from the possession of the said full faith and credit. 21 In fact, accused-appellants did not even
@Buboy, then 2 items with marking 'NANO-1' and 'NANO-2' questioned the credibility of the prosecution witnesses. They
recovered from accused Reynaldo. anchored their appeal solely on the alleged broken chain of the
custody of the seized drugs.
Q: When you proceeded to the place, did you happen to see
the accused? Finally, we note and agree with the observation of the CA that the
issue regarding the break in the chain of custody of evidence was
A: Yes, sir. DAEaTS
raised belatedly and only for the first time on appeal. 22 In People
Q: What were they wearing at that time, if you can still v. Mateo, 23 this Court brushed aside the accused's belated
remember? contention that the illegal drugs confiscated from his person was
inadmissible because the arresting officers failed to comply with
A: I remember that Gerry was wearing sando and short. Section 21 of R.A. No. 9165. Whatever justifiable grounds may
excuse the police officers from literally complying with Section 21
Q: What's the color of the sando?
will remain unknown, because accused did not question during trial
A: I remember it's white, sir. the safekeeping of the items seized from him. Objection to evidence
cannot be raised for the first time on appeal; when a party desires
Q: The short, what's the color? the court to reject the evidence offered, he must so state in the form
of an objection. Without such objection, he cannot raise the question
A: It's maong shorts, sir.
for the first time on appeal.
Q: What about the other accused?
On the basis of the aforesaid disquisition, we find no reason to
A: I remember he's wearing white t-shirt, sir. modify or set aside the decision of the CA. HcDaAI

Q: And his lower garment? ECaScD WHEREFORE, the appeal is DENIED and the 29 March 2011
Decision of the Court of Appeals in CA-G.R. CR-HC No. 03900 in is
A: I did not notice, sir, because they were then sitting. 16 hereby AFFIRMED.
xxx xxx xxx SO ORDERED.
In the aforesaid testimony, Barangay Captain Del Prado, not only
positively identified both accused but also identified the items
contained in the inventory receipt. Such testimony clearly established
FIRST DIVISION
[G.R. No. 200748. July 23, 2014.]
JAIME D. DELA CRUZ, petitioner, vs.
PEOPLE OF THE PHILIPPINES, respondent.
DECISION
SERENO, C.J p:
This is a Petition for Review an Certiorari, filed by petitioner Jaime
D. dela Cruz, from the Decision 1 dated 22 June 2011 issued by the
Twentieth Division of the Court of Appeals (CA) and Resolution 2
dated 2 February 2012 issued by the Former Twentieth Division of
the CA in CA-G.R. C.R. No. 00670. AHcaDC
THE ANTECEDENT FACTS
Petitioner Jaime D. dela Cruz was charged with violation of Section
15, Article II of Republic Act No. (R.A.) 9165, or the Comprehensive
Dangerous Drugs Act of 2002, by the Graft Investigation and
Prosecution Officer of the Office of the Ombudsman — Visayas, in
an Information 3 dated 14 February 2006, which reads:
That on or about the 31st day of January 2006, at Cebu City,
Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, JAIME D. DE LA CRUZ, a public officer,
having been duly appointed and qualified to such public position as
Police Officer 2 of the Philippine National Police (PNP) assigned in
the Security Service Group of the Cebu City Police Office, after
having been arrested by agents of the National Bureau of
Investigation (NBI) in an entrapment operation, was found positive
for use of METHAMPHETAMINE HYDROCHLORIDE commonly known
as "Shabu", the dangerous drug after a confirmatory test conducted
on said accused. TAIaHE
CONTRARY TO LAW.
When arraigned, petitioner, assisted by counsel de parte, pleaded
not guilty to the charge. The records do not reveal whether De la
Cruz was likewise charged for extortion.
VERSION OF THE PROSECUTION
The evidence of the prosecution reveals that at 8:00 a.m. of 31
January 2006, the agents and special investigators of the National
Bureau of Investigation, Central Visayas Regional Office (NBI-
CEVRO) or simply NBI, received a Complaint from Corazon Absin
(Corazon) and Charito Escobido (Charito). The complainants claimed
that at 1:00 a.m. of that same day, Ariel Escobido (Ariel), the live-
in partner of Corazon and son of Charito, was picked up by several
unknown male persons believed to be police officers for allegedly
selling drugs. An errand boy gave a number to the complainants,
and when the latter gave the number a ring, they were instructed to
proceed to the Gorordo Police Office located along Gorordo
Avenue, Cebu City. In the said police office, they met "James" who
demanded from them PhP100,000, later lowered to PhP40,000, in
exchange for the release of Ariel. After the meeting, the
complainants proceeded to the NBI-CEVRO to file a complaint and
narrate the circumstances of the meeting to the authorities. While at
the NBI-CEVRO, Charito even received calls supposedly from
"James" instructing her to bring the money as soon as possible.
The special investigators at the NBI-CEVRO verified the text
messages received by the complainants. A team was immediately
formed to implement an entrapment operation, which took place
inside a Jollibee branch at the corner of Gen. Maxilom and Gorordo
Avenues, Cebu City. The officers were able to nab Jaime dela Cruz
by using a pre-marked PhP500 bill dusted with fluorescent powder,
which was made part of the amount demanded by "James" and
handed by Corazon. Petitioner was later brought to the forensic
laboratory of the NBI-CEVRO where forensic examination was done
by forensic chemist Rommel Paglinawan. Petitioner was required to
submit his urine for drug testing. It later yielded a positive result for
presence of dangerous drugs as indicated in the confirmatory test
result labeled as Toxicology (Dangerous Drugs) Report No. 2006-
TDD-2402 dated 16 February 2006.
VERSION OF THE DEFENSE
The defense presented petitioner as the lone witness. He denied the
charges and testified that while eating at the said Jollibee branch,
he was arrested allegedly for extortion by NBI agents. When he
was at the NBI Office, he was required to extract urine for drug
examination, but he refused saying he wanted it to be done by the
Philippine National Police (PNP) Crime Laboratory and not by the
NBI. His request was, however, denied. He also requested to be
allowed to call his lawyer prior to the taking of his urine sample, to
no avail. AcTDaH
THE RULING OF THE RTC
The Regional Trial Court (RTC) Branch 58 of Cebu City, in its Decision
4 dated 6 June 2007, found the accused guilty beyond reasonable
doubt of violating Section 15, Article II of R.A. 9165 and sentenced
him to suffer the penalty of compulsory rehabilitation for a period
of not less than six (6) months at the Cebu Center for the Ultimate
Rehabilitation of Drug Dependents located at Salinas, Lahug, Cebu
City. 5
Petitioner filed an appeal assigning as error the RTC's validation of
the result of the urine test despite its dubiousness having been
admitted in spite of the lack of legal basis for its admission. First, he
alleges that the forensic laboratory examination was conducted
despite the fact that he was not assisted by counsel, in clear violation
of his constitutional right. Secondly, he was allegedly held guilty
beyond reasonable doubt notwithstanding the lack of sufficient basis
to convict him.
THE RULING OF THE CA
The CA found the appeal devoid of merit and affirmed the ruling of
the RTC.
Petitioner filed a timely Motion for Reconsideration. He argued that
the CA overlooked prevailing jurisprudence, which states that drug
testing conducted under circumstances similar to his would violate a
person's right to privacy. The appellate court nevertheless denied
the motion.
Petitioner thus filed the present Petition for Review on certiorari. He
assigns as errors the use of hearsay evidence as basis for his
conviction and the questionable circumstances surrounding his arrest
and drug test.
Respondent, through the Office of the Solicitor General, filed its
Comment, 6 saying that "petitioner's arguments cannot be the subject
of a petition for review on certiorari under Rule 45, as they involve
questions of facts which may not be the subject thereof; after his
arraignment, he can no longer contest the validity of his arrest, less
so at this stage of the proceedings; his guilt has been adequately
established by direct evidence; and the manner in which the
laboratory examination was conducted was grounded on a valid
and existing law. SCDaET
THE ISSUE
We deem it proper to give due course to this Petition by confronting
head-on the issue of whether or not the drug test conducted upon the
petitioner is legal.
OUR RULING
We declare that the drug test conducted upon petitioner is not
grounded upon any existing law or jurisprudence.
We gloss over petitioner's non-compliance with the Resolution 7
ordering him to submit clearly legible duplicate originals or certified
true copies of the assailed Decision and Resolution.
Petitioner was charged with use of dangerous drugs in violation of
the law, the pertinent provision of which reads:
Section 15. Use of Dangerous Drugs. — A person
apprehended or arrested, who is found to be positive for use of any
dangerous drug, after a confirmatory test, shall be imposed a
penalty of a minimum of six (6) months rehabilitation in a government
center for the first offense, subject to the provisions of Article VIII of
this Act. If apprehended using any dangerous drug for the second
time, he/she shall suffer the penalty of imprisonment ranging from
six (6) years and one (1) day to twelve (12) years and a fine
ranging from Fifty thousand pesos (PhP50,000.00) to Two hundred
thousand pesos (PhP200,000.00): Provided, That this Section shall
not be applicable where the person tested is also found to have in
his/her possession such quantity of any dangerous drug provided
for under Section 11 of this Act, in which case the provisions stated
therein shall apply. 8
The RTC subsequently convicted petitioner, ruling that the following
elements of Section 15 were established: (1) the accused was
arrested; (2) the accused was subjected to drug test; and (3) the
confirmatory test shows that he used a dangerous drug. cdasia
Disregarding petitioner's objection regarding the admissibility of the
evidence, the lower court also reasoned that "a suspect cannot
invoke his right to counsel when he is required to extract urine
because, while he is already in custody, he is not compelled to make
a statement or testimony against himself. Extracting urine from one's
body is merely a mechanical act, hence, falling outside the concept
of a custodial investigation."
We find the ruling and reasoning of the trial court, as well as the
subsequent affirmation by the CA, erroneous on three counts.
The drug test in Section 15 does not
cover persons apprehended or
arrested for any unlawful act, but
only for unlawful acts listed under
Article II of R.A. 9165.
First, "[a] person apprehended or arrested" cannot literally mean
any person apprehended or arrested for any crime. The phrase must
be read in context and understood in consonance with R.A. 9165.
Section 15 comprehends persons arrested or apprehended for
unlawful acts listed under Article II of the law.
Hence, a drug test can be made upon persons who are
apprehended or arrested for, among others, the "importation", 9
"sale, trading, administration, dispensation, delivery, distribution
and transportation", 10 "manufacture" 11 and "possession" 12 of
dangerous drugs and/or controlled precursors and essential
chemicals; possession thereof "during parties, social gatherings or
meetings"; 13 being "employees and visitors of a den, dive or
resort"; 14 "maintenance of a den, dive or resort"; 15 "illegal
chemical diversion of controlled precursors and essential chemicals";
16 "manufacture or delivery" 17 or "possession" 18 of equipment,
instrument, apparatus, and other paraphernalia for dangerous
drugs and/or controlled precursors and essential chemicals;
possession of dangerous drugs "during parties, social gatherings or
meetings"; 19 "unnecessary" 20 or "unlawful" 21 prescription
thereof; "cultivation or culture of plants classified as dangerous
drugs or are sources thereof"; 22 and "maintenance and keeping of
original records of transactions on dangerous drugs and/or
controlled precursors and essential chemicals." 23 To make the
provision applicable to all persons arrested or apprehended for
any crime not listed under Article II is tantamount to unduly
expanding its meaning. Note that accused appellant here was
arrested in the alleged act of extortion. cCaIET
A charge for violation of Section 15 of R.A. 9165 is seen as
expressive of the intent of the law to rehabilitate persons
apprehended or arrested for the unlawful acts enumerated above
instead of charging and convicting them of other crimes with heavier
penalties. The essence of the provision is more clearly illustrated in
People v. Martinez 24 as follows:
On a final note, this Court takes the opportunity to be instructive on
Sec. 11 (Possession of Dangerous Drugs) and Sec. 15 (Use of
Dangerous Drugs) of R.A. No. 9165, with regard to the charges that
are filed by law enforcers. This Court notes the practice of law
enforcers of filing charges under Sec. 11 in cases where the presence
of dangerous drugs as basis for possession is only and solely in the
form of residue, being subsumed under the last paragraph of Sec.
11. Although not incorrect, it would be more in keeping with the intent
of the law to file charges under Sec. 15 instead in order to
rehabilitate first time offenders of drug use, provided that there is
a positive confirmatory test result as required under Sec. 15. The
minimum penalty under the last paragraph of Sec. 11 for the
possession of residue is imprisonment of twelve years and one day,
while the penalty under Sec. 15 for first time offenders of drug use
is a minimum of six months rehabilitation in a government center. To
file charges under Sec. 11 on the basis of residue alone would
frustrate the objective of the law to rehabilitate drug users and
provide them with an opportunity to recover for a second chance at
life.
In the case at bench, the presence of dangerous drugs was only in
the form of residue on the drug paraphernalia, and the accused
were found positive for use of dangerous drugs. Granting that the
arrest was legal, the evidence obtained admissible, and the chain
of custody intact, the law enforcers should have filed charges under
Sec. 15, R.A. No. 9165 or for use of dangerous drugs and, if there
was no residue at all, they should have been charged under Sec. 14
(Possession of Equipment, Instrument, Apparatus and Other
Paraphernalia for Dangerous Drugs During Parties, Social
Gatherings or Meetings). Sec. 14 provides that the maximum
penalty under Sec. 12 (Possession of Equipment, Instrument,
Apparatus and Other Paraphernalia for Dangerous Drugs) shall be
imposed on any person who shall possess any equipment, instrument,
apparatus and other paraphernalia for dangerous drugs. Under
Sec. 12, the maximum penalty is imprisonment of four years and a
fine of PhP50,000.00. In fact, under the same section, the possession
of such equipment, apparatus or other paraphernalia is prima facie
evidence that the possessor has used a dangerous drug and shall be
presumed to have violated Sec. 15.
In order to effectively fulfill the intent of the law to rehabilitate drug
users, this Court thus calls on law enforcers and prosecutors in
dangerous drugs cases to exercise proper discretion in filing charges
when the presence of dangerous drugs is only and solely in the form
of residue and the confirmatory test required under Sec. 15 is
positive for use of dangerous drugs. In such cases, to afford the
accused a chance to be rehabilitated, the filing of charges for or
involving possession of dangerous drugs should only be done when
another separate quantity of dangerous drugs, other than mere
residue, is found in the possession of the accused as provided for in
Sec. 15. (Emphasis supplied) IESAac
Furthermore, making the phrase "a person apprehended or
arrested" in Section 15 applicable to all persons arrested or
apprehended for unlawful acts, not only under R.A. 9165 but for all
other crimes, is tantamount to a mandatory drug testing of all
persons apprehended or arrested for any crime. To overextend the
application of this provision would run counter to our pronouncement
in Social Justice Society v. Dangerous Drugs Board and Philippine
Drug Enforcement Agency, 25 to wit:
. . .[M]andatory drug testing can never be random and suspicionless.
The ideas of randomness and being suspicionless are antithetical to
their being made defendants in a criminal complaint. They are not
randomly picked; neither are they beyond suspicion. When persons
suspected of committing a crime are charged, they are singled out
and are impleaded against their will. The persons thus charged, by
the bare fact of being haled before the prosecutor's office and
peaceably submitting themselves to drug testing, if that be the case,
do not necessarily consent to the procedure, let alone waive their
right to privacy. To impose mandatory drug testing on the accused
is a blatant attempt to harness a medical test as a tool for criminal
prosecution, contrary to the stated objectives of RA 6195. Drug
testing in this case would violate a person's right to privacy
guaranteed under Sec. 2, Art. III of the Constitution. Worse still, the
accused persons are veritably forced to incriminate themselves.
(Emphasis supplied)
The drug test is not covered by
allowable non-testimonial compulsion.
We find that petitioner never raised the alleged irregularity of his
arrest before his arraignment and raises the issue only now before
this tribunal; hence, he is deemed to have waived his right to question
the validity of his arrest curing whatever defect may have attended
his arrest. 26 However, "a waiver of an illegal warrantless arrest
does not mean a waiver of the inadmissibility of evidence seized
during an illegal warrantless arrest." 27
We are aware of the prohibition against testimonial compulsion and
the allowable exceptions to such proscription. Cases where non-
testimonial compulsion has been allowed reveal, however, that the
pieces of evidence obtained were all material to the principal cause
of the arrest. AIcaDC
The constitutional right of an accused against self-incrimination
proscribes the use of physical or moral compulsion to extort
communications from the accused and not the inclusion of his body in
evidence when it may be material. Purely mechanical acts are not
included in the prohibition as the accused does not thereby speak
his guilt, hence the assistance and guiding hand of counsel is not
required. (People vs. Olvis, 238 Phil. 513 [1987]) The essence of the
right against self-incrimination is testimonial compulsion, that is, the
giving of evidence against himself through a testimonial act. (People
vs. Casinillo, 213 SCRA 777 [1992]; People vs. Tranca, 235 SCRA
455 [1994]; People vs. Rondero, 378 Phil. 123 [1999]) Hence, it
has been held that a woman charged with adultery may be
compelled to submit to physical examination to determine her
pregnancy; (Villaflor vs. Summers, 41 Phil. 62 [1920]) and an
accused may be compelled to submit to physical examination and
to have a substance taken from his body for medical determination
as to whether he was suffering from gonorrhea which was contracted
by his victim; (U.S. vs. Tan Teng, 23 Phil. 145 [1912]) to expel
morphine from his mouth; (U.S. vs. Ong Siu Hong, 36 Phil. 735
[1917]) to have the outline of his foot traced to determine its identity
with bloody footprints; (U.S. vs. Salas, 25 Phil. 337 [1913]; U.S. vs.
Zara, 42 Phil. 308 [1921]) and to be photographed or measured,
or his garments or shoes removed or replaced, or to move his body
to enable the foregoing things to be done. (People vs. Otadora, 86
Phil. 244 [1950]) 28 (Emphasis supplied)
In the instant case, we fail to see how a urine sample could be
material to the charge of extortion. The RTC and the CA, therefore,
both erred when they held that the extraction of petitioner's urine
for purposes of drug testing was "merely a mechanical act, hence,
falling outside the concept of a custodial investigation."
We note a case where a urine sample was considered as admissible.
In Gutang v. People, 29 the petitioner therein and his companions
were arrested in connection with the enforcement of a search
warrant in his residence. A PNP-NARCOM team found and
confiscated shabu materials and paraphernalias. The petitioner and
his companions in that case were also asked to give urine samples,
which yielded positive results. Later, the petitioner therein was found
guilty of the crime of illegal possession and use of prohibited drugs.
Gutang claimed that the latter's urine sample was inadmissible in
evidence, since it was derived in effect from an uncounselled
extrajudicial confession. HSDCTA
In the Gutang, et al. case, the Court clarified that "what the
Constitution prohibits is the use of physical or moral compulsion to
extort communication from the accused, but not an inclusion of his
body in evidence, when it may be material". The situation in Gutang
was categorized as falling among the exemptions under the
freedom from testimonial compulsion since what was sought to be
examined came from the body of the accused. The Court said:
This was a mechanical act the accused was made to undergo which
was not meant to unearth undisclosed facts but to ascertain physical
attributes determinable by simple observation. In fact, the record
shows that petitioner and his co-accused were not compelled to give
samples of their urine but they in fact voluntarily gave the same
when they were requested to undergo a drug test.
Assuming arguendo that the urine samples taken from the petitioner
are inadmissible in evidence, we agree with the trial court that the
record is replete with other pieces of credible evidence including the
testimonial evidence of the prosecution which point to the culpability
of the petitioner for the crimes charged.
We emphasize that the circumstances in Gutang are clearly
different from the circumstances of petitioner in the instant case. First,
Gutang was arrested in relation to a drug case. Second, he
volunteered to give his urine. Third, there were other pieces of
evidence that point to his culpability for the crimes charged. In the
present case, though, petitioner was arrested for extortion; he
resisted having his urine sample taken; and finally, his urine sample
was the only available evidence that was used as basis for his
conviction for the use of illegal drugs.
The drug test was a violation of
petitioner's right to privacy and right
against self-incrimination.
It is incontrovertible that petitioner refused to have his urine
extracted and tested for drugs. He also asked for a lawyer prior to
his urine test. He was adamant in exercising his rights, but all of his
efforts proved futile, because he was still compelled to submit his
urine for drug testing under those circumstances.
The pertinent provisions in Article III of the Constitution are clear:
Section 2. The right of the people to be secure in their
persons, houses, papers, and effects against unreasonable searches
and seizures of whatever nature and for any purpose shall be
inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by the
judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly
describing the place to be searched and the persons or things to be
seized. AEaSTC
Section 17. No person shall be compelled to be a witness
against himself.
In the face of these constitutional guarantees, we cannot condone
drug testing of all arrested persons regardless of the crime or
offense for which the arrest is being made.
While we express our commendation of law enforcement agents as
they vigorously track down offenders in their laudable effort to curb
the pervasive and deleterious effects of dangerous drugs on our
society, they must, however, be constantly mindful of the reasonable
limits of their authority, because it is not unlikely that in their clear
intent to purge society of its lawless elements, they may be
knowingly or unknowingly transgressing the protected rights of its
citizens including even members of its own police force.
WHEREFORE, premises considered, the assailed Decision dated 22
June 2011 issued by the Twentieth Division, and the Resolution dated
2 February 2012 issued by the former Twentieth Division of the
Court of Appeals, in CA-G.R. C.R. No. 00670 are SET ASIDE.
Petitioner is hereby ACQUITTED.
SO ORDERED.
SECOND DIVISION
[G.R. No. 184760. April 23, 2010.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.
PATERNO LORENZO y CASAS, defendant-appellant.
DECISION
PEREZ, J p:
Assailed in this appeal via Notice of Appeal is the 14 June 2007
Decision 1 of the Court of Appeals in CA-GR HC No. 02184 which
affirmed the 05 October 2005 Decision 2 promulgated by the
Regional Trial Court (RTC) of San Mateo, Rizal, in Criminal Case Nos.
6991-93, finding accused-appellant Paterno Lorenzo y Casas guilty
beyond reasonable doubt of violating Sections 5 and 11, Article II,
of Republic Act No. 9165, otherwise known as the Dangerous Drugs
Act of 2002. 3 cAHITS
Accused-appellant was arrested and charged following a buy-bust
operation.
On 12 September 2003, two (2) Informations were filed against
accused-appellant Paterno Lorenzo y Casas (Lorenzo) charging him
with violating Sections 5 and 11, Article II of Republic Act No. 9165,
the accusatory portions thereof reading.
Criminal Case No. 6992
That on or about the 10th day of September 2003 in the
Municipality of San Mateo, Province of Rizal, Philippines and within
the jurisdiction of this Honorable Court, the above-named accused,
not being authorized by law, did then and there willfully, unlawfully
and knowingly have in his possession, direct custody and control a
total of 2.04 grams of white crystalline substance contained in two
(2) heat-sealed transparent plastic sachets which gave positive result
to the test for Methylamphetamine Hydrochloride, a dangerous
drug. 4
Criminal Case No. 6993
That on or about the 10th day of September 2003, in the
Municipality of San Mateo, Province of Rizal, Philippines and within
the jurisdiction of this Honorable Court, the above-named accused,
not being authorized by law, did then and there willfully, unlawfully
and knowingly sell, deliver and give away to another 0.20 gram of
white crystalline substance contained in one (1) heat-sealed
transparent plastic sachet which gave positive result to the test for
Metamphetamine Hydrochloride, a dangerous drug. 5 DCaEAS
The cases were raffled to Branch 76 of the RTC of San Mateo, Rizal
and docketed as Criminal Case Nos. 6992-93.
One Conrado Estanislao y Javier (Estanislao) was similarly charged
in a different Information, which case was docketed as Criminal Case
No. 6991. Estanislao was accused of possessing illegal drugs in
violation of the provisions of Section 11, Article II of Republic Act No.
9165, the Information containing the following averments:
Criminal Case No. 6994
That on or about the 10th day of September 2003, in the
Municipality of San Mateo, Province of Rizal, Philippines and within
the jurisdiction of this Honorable Court, the above-named accused,
not being authorized by law, did then and there willfully, unlawfully
and knowingly have in his possession, direct custody and control of
0.05 gram of white crystalline substance contained in one (1) heat-
sealed transparent plastic sachet which gave positive result to the
test for Methylamphetamine Hydrochloride, a dangerous drug.
On arraignment, both accused, with the assistance of counsel,
entered 'NOT GUILTY' pleas. SCaITA
The three (3) cases having been consolidated, joint trial on the merits
ensued.
The prosecution presented as its lone witness, Police Officer 1 (PO1)
Noel P. Pineda, who was a member of the buy-bust team.
The evidence for the prosecution sought to establish that on 9
September 2003, upon a series of reports relayed by a confidential
informant that a certain Paterno Lorenzo was peddling shabu in the
Barangay Dulongbayan area, the team of PO3 Pineda embarked
on a buy-bust operation against said drug peddler. Anticipating the
operation, PO3 Pineda prepared two (2) pieces of marked
P100.00 bills to be used as buy-bust money. At around 10:00
o'clock in the evening of the same day, PO3 Pineda, along with
SPO1 Arellano and PO3 Tougan, proceeded to Barangay
Dulongbayan and secretly met with their confidential informant.
According to the confidential informant, he had not seen Lorenzo and
raised the possibility that he was not in the area at the time.
Assessing the situation, the police officers instructed the confidential
informant to continue with his surveillance of the area and to inform
them immediately if he comes across Lorenzo. DaScAI
At around 1:00 o'clock in the morning of 10 September 2003, while
PO1 Pineda and his companions were waiting at Gen. Luna Street,
the confidential informant reported that Lorenzo was already at the
Daangbakal, Dulongbayan I area and was selling prohibited drugs.
Riding an unmarked vehicle, the team proceeded to where Lorenzo
was. On their arrival, Lorenzo was talking to a man at the corner of
Pulong Diablo and Daangbakal. PO3 Tougan stepped out of their
vehicle and hid in a place where he was not visible to Lorenzo. PO3
Pineda stayed close to SPO1 Arellano, who was then hiding inside
a tricycle near Lorenzo. While this was happening, the confidential
informant approached Lorenzo for the transaction. Lorenzo and the
confidential informant were approximately four (4) meters away
from PO3 Pineda. Because PO3 Pineda knew who Lorenzo was and
considering the place was illuminated, PO3 Pineda recognized the
suspect. The confidential informant and Lorenzo were talking for
about one minute, after which the informant gave the marked money
to Lorenzo. After taking the marked money, Lorenzo handed the
shabu to the informant. PO3 Pineda and SPO1 Arellano alighted
from the tricycle and approached Lorenzo, and introduced
themselves as police officers. They arrested Lorenzo. AIHDcC
Upon being arrested, Lorenzo was bodily searched and PO1 Pineda
was able to retrieve the marked money and 2 other sachets of shabu
from him. Seeing what had happened to Lorenzo, the man he was
talking to and later on identified as a certain Estanislao, attempted
to escape the police officers and ran, but he was soon accosted by
PO3 Tougan. A search of his pockets yielded one (1) sachet of
shabu.
After the buy-bust operation, Lorenzo and Estanislao were taken to
the police station where the incident was recorded in the police
blotter. The plastic sachets containing 2.04 and 0.20 grams of white
crystalline substance bought from Lorenzo was sent to the PNP Crime
Laboratory for laboratory examination. The results as contained in
Chemistry Report No. D-1741-03E showed that the substance sold
by Lorenzo was positive for Methylamphetamine Hydrochloride or
shabu. 6
Interposing the twin defenses of denial and frame-up, accused-
appellant Lorenzo and Estanislao stood before the witness stand and
presented their version of the facts. HESAIT
Lorenzo was in his mountain bike on the way home to Dulongbayan
sometime between 12:00 o'clock in the evening and 1:00 o'clock in
the morning of 10 September 2003. Estanislao, who was also with
him at the time, was riding in his motor cross style bike and was
supposed to buy food at said place after playing 'tong-its.'
While the two (2) were traversing Daangbakal and Delos Angeles
Street, the chain on Estanislao's bike went loose. During the time
Estanislao was repairing his bike, PO3 Tougan, PO3 Pineda, and
SPO1 Arellano, who were then on board an owner type jeepney,
arrived and arrested Lorenzo and Estanislao. According to the police
officers, they were to be brought to the Municipal Hall. The two (2)
suspects protested, claiming not having done anything wrong but the
police officers continued with the arrest. It was later that they were
informed that the arrest was for illegal drugs.
On 5 October 2005, the RTC rendered a Decision convicting Lorenzo
for illegal possession and sale of dangerous drugs, but acquitting
Estanislao, disposing as follows:
WHEREFORE, judgment is hereby rendered: ESCTIA
(a) Finding accused Paterno Lorenzo y Casas guilty beyond
reasonable doubt for violation of Section 5, first paragraph, Article
II of Republic Act No. 9165 (Criminal Case No. 6993) or illegal
selling of 0.20 gram of methylamphetamine hydrochloride (shabu),
a dangerous drug, and is sentenced to suffer the penalty of life
imprisonment and to pay a fine of Five Hundred Thousand Pesos
(P500,000.00).
(b) Finding accused Paterno Lorenzo y Casas guilty beyond
reasonable doubt for Violation of Section 11, second paragraph,
No. 3, Article II of Republic Act No. 9165 (Criminal Case No. 6992)
or illegal possession of 2.04 gram of methylamphetamine
hydrochloride (shabu), a dangerous drug, and is sentenced to suffer
imprisonment of Twelve (12) years and one (1) day as minimum to
Twelve years and six (months) as maximum and to pay a fine of
Three Hundred Thousand Pesos (P300,000.00).
(c) Finding accused Conrado Estanislao y Javier, for violation
of Section 11, second paragraph, sub paragraph 3, Article II of
Republic Act No. 9165, NOT GUILTY for failure of the prosecution
to prove his guilt beyond reasonable doubt. SHDAEC
Detained accused Conrado Estanislao y Javier is ordered released
from detention at the San Mateo Jail unless detained for some other
lawful cause.
The plastic sachets of shabu subject matter of the instant cases are
ordered forfeited in favor of the government and the Officer-In-
Charge of the Court is hereby ordered to safely deliver or cause
the safe delivery of the same to the Philippine Drug Enforcement
Agency (PDEA) for proper disposition. 7
Weighing the testimonies of the prosecution and defense witnesses,
as well as the other evidence presented during trial, the trial court
gave more veracity to the prosecution's version that Lorenzo was
caught in flagrante delicto selling illegal drugs to a poseur-buyer
during a buy-bust operation. The trial court gave credence to the
prosecution's evidence in accordance with the presumption of
regularity in the performance of official functions accorded to police
officers. According to the trial court, the prosecution proved beyond
reasonable doubt the identity of the buyer in the buy-bust operation
and the seller, object and consideration, including the delivery of the
shabu sold by Lorenzo and the payment of the buy-bust
money. TEHIaD
Invoking his innocence, Lorenzo appealed his conviction to the Court
of Appeals, questioning the procedure followed by the police
operatives in the seizure and custody of the evidence against him.
On 14 June 2007, the Court of Appeals affirmed the judgment of
conviction rendered by the RTC, disposing to wit:
WHEREFORE, premises considered, appeal is hereby dismissed and
the assailed October 5, 2005 Decision of the Regional Trial Court
of San Mateo Rizal, Branch 76, in Criminal Case Nos. 6991-93, is
hereby AFFIRMED.
Pursuant to Section 13 (C), Rule 124 of the 2000 Rules of Criminal
Procedure, as amended by AM No. 00-5-03-SC dated September
28, 2004, which became effective on October 15, 2004. This
judgment of the Court of Appeals may be appealed to the Supreme
Court by notice of appeal filed with the Clerk of Court of the Court
of Appeals.
SO ORDERED.
Unyielding, Lorenzo appealed before this Court on Notice of
Appeal, 8 adopting the same arguments raised before the Court of
Appeals: HATICc
I.
THE COURT A QUO ERRED IN FINDING ACCUSED-APPELLANT
GUILTY BEYOND REASONABLE DOUBT OF VIOLATION OF
SECTIONS 5 AND 11, REPUBLIC ACT NO. 9165; AND
II.
THE COURT A QUO GRAVELY ERRED IN NOT GIVING WEIGHT
AND CREDENCE TO ACCUSED-APPELLANT'S DEFENSE OF DENIAL.
The presumption of innocence of an accused in a criminal case is a
basic constitutional principle, fleshed out by procedural rules which
place on the prosecution the burden of proving that an accused is
guilty of the offense charged by proof beyond reasonable doubt.
Corollary thereto, conviction must rest on the strength of the
prosecution's evidence and not on the weakness of the defense.
In fact, if the prosecution fails to meet the required quantum of
evidence, the defense may logically not even present evidence on
its behalf. In which case, the presumption of innocence shall prevail
and, hence, the accused shall be acquitted. However, once the
presumption of innocence is overcome, the defense bears the burden
of evidence to show reasonable doubt as to the guilt of the
accused. CSIDEc
Whether the degree of proof has been met is largely left for the
trial courts to be determined. Consistent with the rulings of this Court,
it is but a fundamental and settled rule that factual findings of the
trial court and its calibration of the testimonies of the witnesses and
its conclusions anchored on its findings are accorded by the
appellate court high respect, if not conclusive effect, more so when
affirmed by the Court of Appeals. The exception is when it is
established that the trial court ignored, overlooked, misconstrued or
misinterpreted cogent facts and circumstances which, if considered,
will change the outcome of the case. Considering that what is at
stake here is the liberty of accused-appellant, we have carefully
reviewed and evaluated the records of the case and find it
necessary to reverse the appellate court's decision convicting
accused-appellant.
Essentially, Lorenzo questions his conviction on the basis of
reasonable doubt. The defense anchors its claim on the failure of the
prosecution to adopt the required procedure under Section 21,
Article II, Republic Act No. 9165, on the custody and disposition of
confiscated, seized, or surrendered dangerous drugs. According to
the defense, this alleged failure to follow proper procedure, i.e.,
inventory and photographing of the retrieved evidence, raises
doubts as to whether the specimen examined by the forensic chemist
and presented in court were indeed retrieved from accused-
appellant. The defense also faults the police operatives for not
having coordinated with the PDEA regarding the buy-bust. ITDSAE
Thus, for resolution by this Court is the sole issue of whether the
prosecution discharged its burden of proving Lorenzo's guilt beyond
reasonable doubt for the crime charged.
We rule in the negative. The prosecution's case fails for failure to
establish the identity of the prohibited drug with moral certainty.
In order to successfully prosecute an accused for illegal sale of
drugs, the prosecution must be able to prove the following elements:
(1) identities of the buyer and seller, the object, and the
consideration; and (2) the delivery of the thing sold and the payment
therefor. 9 Material to the prosecution for illegal sale of dangerous
drugs is the proof that the transaction or sale had actually taken
place, coupled with the presentation in court of evidence of corpus
delicti. 10 The term corpus delicti means the actual commission by
someone of the particular crime charged.
On the other hand, in illegal possession of dangerous drugs, the
elements are: (1) the accused is in possession of an item or object
which is identified to be a prohibited drug; (2) such possession is not
authorized by law; and (3) the accused freely and consciously
possessed the said drug. Similarly, in this case, the evidence of the
corpus delicti must be established beyond doubt. HcACTE
In both illegal sale and illegal possession of prohibited drugs,
conviction cannot be sustained if there is a persistent doubt on the
identity of the drug. The identity of the prohibited drug must be
established with moral certainty. Apart from showing that the
elements of possession or sale are present, the fact that the
substance illegally possessed and sold in the first place is the same
substance offered in court as exhibit must likewise be established
with the same degree of certitude as that needed to sustain a guilty
verdict.
While buy-bust operations have been proven to be an effective way
to flush out illegal transactions that are otherwise conducted covertly
and in secrecy, a buy-bust operation is susceptible to police abuse.
Thus, courts have been mandated to be extra vigilant in trying drug
cases lest an innocent person is made to suffer the unusually severe
penalties for drug offenses.
Taking the aforementioned into consideration, specific procedures
relating to the seizure and custody of drugs have been laid down
under the Implementing Rules and Regulations (IRR) for Republic Act
No. 9165 and it is the prosecution's burden to adduce evidence that
these procedures have been complied with in proving the elements
of the offense. acHITE
The procedure for the custody and disposition of confiscated, seized
and/or surrendered dangerous drugs, among others, is provided
under Section 21 (a), paragraph 1 of Article II of Republic Act No.
9165, to wit:
(a) The apprehending team having initial custody and control
of the drugs shall, immediately after seizure and confiscation,
physically inventory and photograph the same in 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
copies of the inventory and be given a copy thereof;
Section 21 (a), Article II of the Implementing Rules and Regulations
of Republic Act No. 9165, which implements said provision, reads:
(a) The apprehending team having initial custody and control
of the drugs shall, immediately after seizure and confiscation,
physically inventory and photograph the same in 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
copies of the inventory and be given a copy thereof; Provided,
further that non-compliance with these requirements under justifiable
grounds, as long as the integrity and the evidentiary value of the
seized items are properly preserved by the apprehending
officers/team, shall not render void and invalid such seizures of and
custody over said items. ISEHTa
Section 21 (a), Article II of the IRR offers some flexibility in complying
with the express requirements. Indeed, the evident purpose of the
procedure is the preservation of the integrity and evidentiary value
of the seized items, as the same would be utilized in the
determination of the guilt of or innocence of the accused. Thus, the
proviso stating that non-compliance with the stipulated procedure,
under justifiable grounds, shall not render void and invalid such
seizures of and custody over said items, for as long as the integrity
and evidentiary value of the seized items are properly preserved
by the apprehending officers.
In People v. Sanchez, 11 we clarified that this saving clause applies
only where the prosecution recognized the procedural lapses, and
thereafter explained the cited justifiable grounds.
Accused-appellant claims that no physical inventory and no
photographing of the drugs took place. Non-compliance by the
police operatives with the foregoing requirements in the instant case
is fatal to the prosecution's case. Although the prosecution
recognized its failure to coordinate with the PDEA because of the
urgency of the situation, it ignored the issue of specifically
identifying the prohibited drug at the point of confiscation. There is
absolutely nothing in the records to show that the inventory and
photography requirements, or their credible substitute to prove
integrity and evidentiary value, were ever followed. CSaIAc
In People v. Lim, 12 this Court held:
. . . any apprehending team having initial custody and control of
said drugs and/or paraphernalia, should immediately after seizure
and confiscation, have the same physically inventoried and
photographed in the presence of the accused, if there be any, and
or his representative, who shall be required to sign the copies of the
inventory and be given a copy thereof. The failure of the agents to
comply with such a requirement raises a doubt whether what was
submitted for laboratory examination and presented in court was
actually recovered from the appellants. It negates the presumption
that official duties have been regularly performed by the PAOC-TF
agents.
In Bondad, Jr. v. People, 13 where the prosecution did not inventory
and photograph the confiscated evidence, this Court acquitted
therein accused reasoning that failure to comply with the aforesaid
requirements of the law compromised the identity of the items
seized.
In People v. Ruiz, 14 this Court acquitted accused due to the failure
of the prosecution to comply with the procedures under Republic Act
No. 9165 and its IRR as no physical inventory was ever made, and
no photograph of the seized items was taken under the circumstances
required. cAHIST
In People v. Orteza, 15 the Court explained the implications of the
failure to comply with Paragraph 1, Section 21, Article II of Republic
Act No. 9165, to wit:
In People v. Laxa, where the buy-bust team failed to mark the
confiscated marijuana immediately after the apprehension of the
accused, the Court held that the deviation from the standard
procedure in anti-narcotics operations produced doubts as to the
origins of the marijuana. Consequently, the Court concluded that the
prosecution failed to establish the identity of the corpus delicti.
The Court made a similar ruling in People v. Kimura, where the
Narcom operatives failed to place markings on the seized marijuana
at the time the accused was arrested and to observe the procedure
and take custody of the drug.
More recently, in Zarraga v. People, the Court held that the material
inconsistencies with regard to when and where the markings on the
shabu were made and the lack of inventory on the seized drugs
created reasonable doubt as to the identity of the corpus delicti. The
Court thus acquitted the accused due to the prosecution's failure to
indubitably show the identity of the shabu. HTAIcD
To reiterate, the flexibility offered by the IRR of Republic Act No.
9165 is coupled with the proviso that the integrity and evidentiary
value of the seized items must be preserved.
Thus, in Malillin v. People, 16 the Court explained that the "chain of
custody" requirement performs this function in that it ensures that
unnecessary doubts concerning the identity of the evidence are
removed. The chain of evidence is constructed by proper exhibit
handling, storage, labeling and recording, and must exist from the
time the evidence is found until the time it is offered in evidence. 17
Failure to prove that the specimen submitted for laboratory
examination was the same one allegedly seized from accused is
fatal to the prosecution's case. There can be no crime of illegal
possession or illegal sale of a prohibited drug when nagging doubts
persist on whether the item confiscated was the same specimen
examined and established to be the prohibited drug. 18
PO1 Pineda testified that it was their confidential agent who
purchased the shabu from accused-appellant and that he only
retrieved it from said informant. He further testified that he marked
the retrieved sachet of shabu together with the two other sachets of
shabu that were allegedly seized from the accused, but it was not
certain when and where the said marking was done nor who had
specifically received and had custody of the specimens thereafter.
The Court also observes that the prosecution did not present the
poseur-buyer who had personal knowledge of the transaction. The
lone prosecution witness was at least four meters away from where
accused-appellant and the poseur-buyer were. From this distance, it
was impossible for him to hear the conversation between accused-
appellant and the poseur-buyer. HDCAaS
The foregoing facts and circumstances create doubt as to whether
the sachets of shabu allegedly seized from accused-appellant were
the same ones that were released to Camp Crame and submitted
for laboratory examination. We therefore find that this failure to
establish the evidence's chain of custody is damaging to the
prosecution's case. 19
In sum, the totality of the evidence presented in the instant case
failed to support accused-appellant's conviction for violation of
Sections 5 and 11, Article II, Republic Act No. 9165, since the
prosecution failed to prove beyond reasonable doubt all the
elements of the offense.
Accordingly, the presumption of innocence should prevail.
WHEREFORE, the assailed Court of Appeals Decision dated 14 June
2007 in CA-G.R. CR-H.C. No. 02184, is hereby REVERSED and SET
ASIDE. Accused-appellant PATERNO LORENZO y CASAS is hereby
ACQUITTED for failure of the prosecution to prove his guilt beyond
reasonable doubt. He is ordered immediately RELEASED from
detention, unless he is confined for any other lawful cause. DTSaIc
Let a copy of this Decision be furnished the Director of the Bureau of
Corrections, Muntinlupa City for immediate implementation. The
Director of the Bureau of Corrections is directed to report to this
Court within five days from receipt of this Decision the action he has
taken. Copies shall also be furnished the Director General, Philippine
National Police, and the Director General, Philippine Drugs
Enforcement Agency, for their information.
SO ORDERED.
SECOND DIVISION
[G.R. No. 191366. December 13, 2010.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.
ARNOLD MARTINEZ Y ANGELES, EDGAR DIZON Y FERRER,
REZIN MARTINEZ Y CAROLINO, and RAFAEL GONZALES Y
CUNANAN, accused-appellants.
DECISION
MENDOZA, J p:
This is an appeal from the August 7, 2009 Decision 1 of the Court
of Appeals (CA), in CA-G.R. HC-NO. 03269, which affirmed the
February 13, 2008 Decision 2 of the Regional Trial Court, Branch
41, Dagupan City (RTC), in Criminal Case No. 2006-0525-D, finding
the accused guilty of violating Section 13, in relation to Section 11,
Article II of Republic Act No. 9165 for Possession of Dangerous
Drugs During Parties, Social Gatherings or Meetings. DHSEcI
The Facts
The Information indicting the accused reads:
That on or about the 2nd day of September 2006, in the City of
Dagupan, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, ARNOLD MARTINEZ y ANGELES,
EDGAR DIZON y FERRER, REZIN MARTINEZ y CAROLINO, ROLAND
DORIA y DIAZ and RAFAEL GONZALES y CUNANAN, without
authority of law, confederating together, acting jointly and helping
one another, did then and there wilfully, unlawfully and criminally,
sniff and possess dangerous drugs (shabu residues) contained in
empty plastic sachets and rolled aluminum foil, during a party, or at
a social gathering or meeting, or in the proximate company of at
least two (2) person[s].
Contrary to Section 13, Article II, R.A. 9165. 3
Version of the Prosecution
As culled from the testimonies of prosecution witnesses, Police Officer
1 Bernard Azardon (PO1 Azardon), one of the apprehending
officers, and Police Inspector Lady Ellen Maranion (P/Insp.
Maranion), the forensic chemical officer, it appears that on
September 2, 2006, at around 12:45 o'clock in the afternoon, PO1
Azardon was on duty at the Police Community Precinct II along
Arellano Street, Dagupan City, when a concerned citizen entered
the precinct and reported that a pot session was going on in the
house of accused Rafael Gonzales (Gonzales) in Trinidad
Subdivision, Dagupan City. Upon receipt of the report, PO1
Azardon, PO1 Alejandro Dela Cruz (PO1 Dela Cruz), and members
of the Special Weapons and Tactics (SWAT) team hied to Trinidad
Subdivision, Dagupan City. Upon inquiry from people in the area,
the house of Gonzales was located.
As the police officers entered the gate of the house, they saw
accused Orlando Doria (Doria) coming out of the side door and
immediately arrested him. Inside the house, they saw accused
Gonzales, Arnold Martinez (A. Martinez), Edgar Dizon (Dizon), and
Rezin Martinez (R. Martinez) in a room. The four were surprised by
the presence of the police. In front of them were open plastic sachets
(containing shabu residue), pieces of rolled used aluminum foil and
pieces of used aluminum foil. TaISDA
The accused were arrested and brought to the police precinct. The
items found in the room were seized and turned over to the
Pangasinan Provincial Police Crime Laboratory Officer, P/Insp.
Maranion. The latter conducted a laboratory examination on the
seized items and all 115 plastic sachets, 11 pieces of rolled used
aluminum foil, and 27 of the 49 pieces of used aluminum foil tested
positive for methamphetamine hydrochloride. The accused were
subjected to a drug test and, except for Doria, they were found to
be positive for methamphetamine hydrochloride.
Version of the Defense
The defense, through its witnesses, accused A. Martinez, Dizon, and
R. Martinez, claimed that in the morning of September 2, 2006, the
three of them were along Arellano Street in Trinidad Subdivision,
Dagupan City, to meet with a certain Apper who bumped the
passenger jeep of R. Martinez and who was to give the materials
for the painting of said jeep. As they were going around the
subdivision looking for Apper, they saw Gonzales in front of his
house and asked him if he noticed a person pass by. While they
were talking, Doria arrived. It was then that five to seven policemen
emerged and apprehended them. They were handcuffed and
brought to the police station in Perez, Dagupan City, where they
were incarcerated and charged with sniffing shabu.
The Ruling of the RTC
The case against Doria was dismissed on a demurrer to evidence.
On February 13, 2008, the RTC rendered its decision, the dispositve
portion of which reads: CSEHcT
WHEREFORE, premises considered, judgment is hereby rendered
finding accused ARNOLD MARTINEZ y Angeles, EDGAR DIZON y
Ferrer, REZIN MARTINEZ y Carolino, and RAFAEL GONZALES y
Cunanan GUILTY beyond reasonable doubt of the crime of
Possession of Dangerous Drugs During Parties, Social Gatherings or
Meetings defined and penalized under Section 13 in relation to
Section 11, Article II of Republic Act 9165, and each of them is
sentenced to suffer the penalty of life imprisonment and to pay the
fine in the amount of P500,000.00, and to pay the cost of suit.
The subject items are hereby forfeited in favor of the government
and to be disposed of in accordance with the law.
SO ORDERED. 4
The RTC was of the view that the positive testimony of prosecution
witness PO1 Azardon, without any showing of ill-motive on his part,
prevailed over the defenses of denial and alibi put up by the
accused. The accused were held to have been in constructive
possession of the subject items. A conspiracy was also found present
as there was a common purpose to possess the dangerous drug.
The Ruling of the CA
The CA ruled that there was sufficient evidence to support the
findings of the RTC as to the constructive possession of the dangerous
drugs by the accused. It further held that although the procedure
regarding the custody and disposition of evidence prescribed by
Section 21 of R.A. No. 9165 was not strictly complied with, the
integrity and evidentiary value of the evidence were nonetheless
safeguarded. The CA was of the view that the presumption of
regularity in the performance of official duty was not sufficiently
controverted by the accused.
Not in conformity, the accused now interposes this appeal before this
Court praying for the reversal of the subject decision, presenting the
following: STIcaE
Assignment of Errors
For accused Arnold Martinez, Edgar Dizon and Rezin Martinez
1. The lower court erred in finding the accused-appellants to
be having a pot session at the time of their arrest;
2. The lower court erred in not seeing through the antics of the
police to plant the shabu paraphernalia to justify the arrest of the
accused-appellants without warrant;
3. The lower court erred in not finding that the corpus delicti
has not been sufficiently established;
4. The lower court erred in not finding the uncorroborated
testimony of PO1 Azardon insufficient to convict the accused-
appellants of the crime charged;
5. The lower court erred in not acquitting the accused-
appellants.
For accused Rafael Gonzales
I
THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-
APPELLANT DESPITE THE PROSECUTION'S FAILURE TO
OVERTHROW THE CONSTITUTIONAL PRESUMPTION OF
INNOCENCE.
II
THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-
APPELLANT DESPITE THE PROSECUTION'S FAILURE TO ESTABLISH
THE CHAIN OF CUSTODY OF THE ALLEGED CONFISCATED
DRUG. cDHAaT
After an assiduous assessment of the evidentiary records, the Court
finds that the prosecution failed to prove the guilt of the accused.
The principal reasons are 1] that the evidence against the accused
are inadmissible; and 2] that granting the same to be admissible,
the chain of custody has not been duly established.
Illegal Arrest, Search and Seizure
Indeed, the accused is estopped from assailing the legality of his
arrest if he fails to raise such issue before arraignment. 5 However,
this waiver is limited only to the arrest. The legality of an arrest
affects only the jurisdiction of the court over the person of the
accused. A waiver of an illegal warrantless arrest does not carry
with it a waiver of the inadmissibility of evidence seized during the
illegal warrantless arrest. 6
Although the admissibility of the evidence was not raised as in issue
by the accused, it has been held that this Court has the power to
correct any error, even if unassigned, if such is necessary in arriving
at a just decision, 7 especially when the transcendental matter of life
and liberty is at stake. 8 While it is true that rules of procedure are
intended to promote rather than frustrate the ends of justice, they
nevertheless must not be met at the expense of substantial justice.
Time and again, this Court has reiterated the doctrine that the rules
of procedure are mere tools intended to facilitate the attainment of
justice, rather than frustrate it. Technicalities should never be used to
defeat substantive rights. 9 Thus, despite the procedural lapses of
the accused, this Court shall rule on the admissibility of the evidence
in the case at bench. The clear infringement of the accused's right to
be protected against unreasonable searches and seizures cannot be
ignored.
The State cannot, in a manner contrary to its constitutional
guarantee, intrude into the persons of its citizens as well as into their
houses, papers and effects. 10 Sec. 2, Art. III, of the 1987
Constitution provides: EScAHT
Section 2. — The right of the people to be secure in their persons,
houses, papers, and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall be inviolable,
and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to
be searched and the persons or things to be seized.
This constitutional guarantee, however, is not a blanket prohibition
against all searches and seizures without warrant. Arrests and
seizures in the following instances are allowed even in the absence
of a warrant — (i) warrantless search incidental to a lawful arrest;
11 (ii) search of evidence in "plain view;" (iii) search of a moving
vehicle; (iv) consented warrantless search; (v) customs search; (vi)
stop and frisk; and (vii) exigent and emergency circumstances. 12
This case would appear to fall under either a warrantless search
incidental to a lawful arrest or a plain view search, both of which
require a lawful arrest in order to be considered valid exceptions
to the constitutional guarantee. Rule 113 of the Revised Rules of
Criminal Procedure provides for the circumstances under which a
warrantless arrest is lawful. Thus:
According to the testimony of PO1 Azardon and his Joint Affidavit
13 with PO1 Dela Cruz, they proceeded to, and entered, the house
of accused Gonzales based solely on the report of a concerned
citizen that a pot session was going on in said house, to wit:
Q: I go back to the information referred to you by the
informant, did he not tell you how many persons were actually
conducting the pot session?
A: Yes, sir.
Q: When you went to the place of Rafael Gonzales, of
course you were not armed with a search warrant, correct?
A: None, sir.
Q: Before the information was given to you by your alleged
informant, you did not know personally Rafael
Gonzales? EcHIAC
A: I have not met [him] yet but I heard his name, sir.
Q: When this informant told you that he was told that there
was [an] ongoing pot session in the house of Rafael Gonzales, was
this report to you placed in the police blotter before you
proceeded to the house of Rafael Gonzales?
A: I think it was no longer recorded, sir.
Q: In other words, you did not even bother to get the
personal data or identity of the person who told you that he was
allegedly informed that there was an ongoing pot session in the
house of Rafael Gonzales?
A: What I know is that he is a jeepney driver of a downtown
jeepney but he does not want to be identified because he was
afraid, sir.
Q: And likewise, he did not inform you who told him that
there was an ongoing pot session in the house of Rafael Gonzales?

Sec. 5. Arrest without warrant; when lawful. — A peace officer or A: No more, sir.
a private person may, without a warrant, arrest a person:
Q: But upon receiving such report from that jeepney driver
(a) When, in his presence, the person to be arrested has you immediately formed a group and went to the place of Rafael
committed, is actually committing, or is attempting to commit an Gonzales?
offense;
A: Yes, sir.
(b) When an offense has just been committed and he has
xxx xxx xxx
probable cause to believe based on personal knowledge of facts
or circumstances that the person to be arrested has committed it; Q: When you were at the open gate of the premises of
and DHSCEc Rafael Gonzales, you could not see what is happening inside the
house of Rafael Gonzales? DTSaIc
(c) When the person to be arrested is a prisoner who has
escaped from a penal establishment or place where he is serving A: Yes, sir.
final judgment or is temporarily confined while his case is pending,
or has escaped while being transferred from one confinement to Q: You did not also see the alleged paraphernalia as well
another. as the plastic sachet of shabu on the table while you were outside
the premises of the property of Rafael Gonzales?
In cases falling under paragraphs (a) and (b) above, the person
arrested without a warrant shall be forthwith delivered to the xxx xxx xxx
nearest police station or jail and shall be proceeded against in
Q: Before they entered the premises they could not see the
accordance with section 7 of Rule 112.
paraphernalia?
A review of the facts reveal that the arrest of the accused was illegal
COURT:
and the subject items were confiscated as an incident thereof.
 Answer.
A: Of course because they were inside the room, how could
we see them, sir.
Q: But still you entered the premises, only because a certain
person who told you that he was informed by another person that
there was an ongoing pot session going on inside the house of
Rafael Gonzales?
A: Yes, sir.
Q: And that is the only reason why you barged in inside the
house of Rafael Gonzales and you arrested the persons you saw?
A: Yes, sir. 14
Paragraph (c) of Rule 113 is clearly inapplicable to this case.
Paragraphs (a) and (b), on the other hand, may be applicable and
both require probable cause to be present in order for a warrantless
arrest to be valid. Probable cause has been held to signify a
reasonable ground of suspicion supported by circumstances
sufficiently strong in themselves to warrant a cautious man's belief
that the person accused is guilty of the offense with which he is
charged. 15 ITADaE
Although this Court has ruled in several dangerous drugs cases 16
that tipped information is sufficient probable cause to effect a
warrantless search, 17 such rulings cannot be applied in the case at
bench because said cases involve either a buy-bust operation or
drugs in transit, basically, circumstances other than the sole tip of an
informer as basis for the arrest. None of these drug cases involve
police officers entering a house without warrant to effect arrest and
seizure based solely on an informer's tip. The case of People v.
Bolasa 18 is informative on this matter.
In People v. Bolasa, an anonymous caller tipped off the police that
a man and a woman were repacking prohibited drugs at a certain
house. The police immediately proceeded to the house of the
suspects. They walked towards the house accompanied by their
informer. When they reached the house, they peeped inside through
a small window and saw a man and woman repacking marijuana.
They then entered the house, introduced themselves as police
officers, confiscated the drug paraphernalia, and arrested the
suspects. This Court ruled:
The manner by which accused-appellants were apprehended does
not fall under any of the above-enumerated categories. Perforce,
their arrest is illegal. First, the arresting officers had no personal
knowledge that at the time of their arrest, accused-appellants had
just committed, were committing, or were about to commit a crime.
Second, the arresting officers had no personal knowledge that a
crime was committed nor did they have any reasonable ground to
believe that accused-appellants committed it. Third, accused-
appellants were not prisoners who have escaped from a penal
establishment.
Neither can it be said that the objects were seized in plain view.
First, there was no valid intrusion. As already discussed, accused-
appellants were illegally arrested. Second, the evidence, i.e., the
tea bags later on found to contain marijuana, was not inadvertently
discovered. The police officers intentionally peeped first through the
window before they saw and ascertained the activities of accused-
appellants inside the room. In like manner, the search cannot be
categorized as a search of a moving vehicle, a consented
warrantless search, a customs search, or a stop and frisk; it cannot
even fall under exigent and emergency circumstances, for the
evidence at hand is bereft of any such showing.
On the contrary, it indicates that the apprehending officers should
have conducted first a surveillance considering that the identities and
address of the suspected culprits were already ascertained. After
conducting the surveillance and determining the existence of
probable cause for arresting accused-appellants, they should have
secured a search warrant prior to effecting a valid arrest and
seizure. The arrest being illegal ab initio, the accompanying search
was likewise illegal. Every evidence thus obtained during the illegal
search cannot be used against accused-appellants; hence, their
acquittal must follow in faithful obeisance to the fundamental law.
19 DaScCH
It has been held that personal knowledge of facts in arrests without
warrant must be based upon probable cause, which means an actual
belief or reasonable grounds of suspicion. The grounds of suspicion
are reasonable when the suspicion, that the person to be arrested is
probably guilty of committing an offense, is based on actual facts,
that is, supported by circumstances sufficiently strong in themselves
to create the probable cause of guilt of the person to be arrested.
20
As to paragraph (a) of Section 5 of Rule 113, the arresting officers
had no personal knowledge that at the time of the arrest, accused
had just committed, were committing, or were about to commit a
crime, as they had no probable cause to enter the house of accused
Rafael Gonzales in order to arrest them. As to paragraph (b), the
arresting officers had no personal knowledge of facts and
circumstances that would lead them to believe that the accused had
just committed an offense. As admitted in the testimony of PO1
Azardon, the tip originated from a concerned citizen who himself
had no personal knowledge of the information that was reported to
the police:
Q: Mr. Witness, you claimed that the reason for
apprehending all the accused was based on a tip-off by an
informant?
A: Yes, sir.
Q: What exactly [did] that informant tell you?
A: He told us that somebody told him that there was an
ongoing pot session in the house of one of the accused Rafael
Gonzales, sir.
Q: You mean to say that it was not the informant himself to
whom the information originated but from somebody
else? IHcTDA
A: That was what he told me, sir.
Q: Because of that you proceeded to where the alleged pot
session was going on? [No Answer]
Q: Did you[r] informant particularly pinpointed [sic] to where
the alleged pot session was going on?
A: No more because he did not go with us, sir.
Q: So you merely relied on what he said that something or a
pot session was going on somewhere in Arellano but you don't
know the exact place where the pot session was going on?
A: Yes, sir.
Q: And your informant has no personal knowledge as to the
veracity of the alleged pot session because he claimed that he
derived that information from somebody else?
A: This is what he told us that somebody told him that there
was an ongoing pot session, sir.
Q: Despite of [sic] that information you proceeded to where?
A: Trinidad Subdivision, sir.
xxx xxx xxx
Q: Mr. Witness, did your informant named [sic] those
included in the alleged pot session?
A: No, sir.
Q: That was, because your informant don't [sic] know
physically what was really happening there? cITCAa
A: He was told by another person that there was an ongoing
pot session there, sir. 21 [Emphasis supplied]
Neither can it be said that the subject items were seized in plain
view. The elements of plain view are: (a) a prior valid intrusion
based on the valid warrantless arrest in which the police are legally
present in the pursuit of their official duties; (b) the evidence was
inadvertently discovered by the police who have the right to be
where they are; (c) the evidence must be immediately apparent;
and, (d) "plain view" justified mere seizure of evidence without
further search. 22
The evidence was not inadvertently discovered as the police officers
intentionally entered the house with no prior surveillance or
investigation before they discovered the accused with the subject
items. If the prior peeking of the police officers in Bolasa was held
to be insufficient to constitute plain view, then more so should the
warrantless search in this case be struck down. Neither can the search
be considered as a search of a moving vehicle, a consented
warrantless search, a customs search, a stop and frisk, or one under
exigent and emergency circumstances.
The apprehending officers should have first conducted a surveillance
considering that the identity and address of one of the accused were
already ascertained. After conducting the surveillance and
determining the existence of probable cause, then a search warrant
should have been secured prior to effecting arrest and seizure. The
arrest being illegal, the ensuing search as a result thereof is likewise
illegal. Evidence procured on the occasion of an unreasonable
search and seizure is deemed tainted for being the proverbial fruit
of a poisonous tree and should be excluded. 23 The subject items
seized during the illegal arrest are thus inadmissible. The drug, being
the very corpus delicti of the crime of illegal possession of dangerous
drugs, its inadmissibility thus precludes conviction, and calls for the
acquittal of the accused.
As has been noted previously by this Court, some lawmen,
prosecutors and judges have glossed over illegal searches and
seizures in cases where law enforcers are able to present the
alleged evidence of the crime, regardless of the methods by which
they were obtained. This attitude tramples on constitutionally-
guaranteed rights in the name of law enforcement. It is ironic that
such enforcement of the law fosters the breakdown of our system of
justice and the eventual denigration of society. While this Court
appreciates and encourages the efforts of law enforcers to uphold
the law and to preserve the peace and security of society, we
nevertheless admonish them to act with deliberate care and within
the parameters set by the Constitution and the law. 24 AaITCS
Chain of Custody
Even granting that the seized items are admissible as evidence, the
acquittal of the accused would still be in order for failure of the
apprehending officers to comply with the chain of custody
requirement in dangerous drugs cases.
The accused contend that the identity of the seized drug was not
established with moral certainty as the chain of custody appears to
be questionable, the authorities having failed to comply with
Sections 21 and 86 of R.A. No. 9165, and Dangerous Drug Board
(DDB) Resolution No. 03, Series of 1979, as amended by Board
Regulation No. 2, Series of 1990. They argue that there was no prior
coordination with the Philippine Drug Enforcement Agency (PDEA),
no inventory of the confiscated items conducted at the crime scene,
no photograph of the items taken, no compliance with the rule
requiring the accused to sign the inventory and to give them copies
thereof, and no showing of how the items were handled from the
time of confiscation up to the time of submission to the crime
laboratory for testing. Therefore, the corpus delicti was not proven,
thereby producing reasonable doubt as to their guilt. Thus, they
assert that the presumption of innocence in their favor was not
overcome by the presumption of regularity in the performance of
official duty.
The essential requisites to establish illegal possession of dangerous
drugs are: (i) the accused was in possession of the dangerous drug,
(ii) such possession is not authorized by law, and (iii) the accused
freely and consciously possessed the dangerous drug. 25
Additionally, this being a case for violation of Section 13 of R.A. No.
9165, an additional element of the crime is (iv) the possession of the
dangerous drug must have occurred during a party, or at a social
gathering or meeting, or in the proximate company of at least two
(2) persons.
The existence of the drug is the very corpus delicti of the crime of
illegal possession of dangerous drugs and, thus, a condition sine qua
non for conviction. In order to establish the existence of the drug, its
chain of custody must be sufficiently established. The chain of custody
requirement is essential to ensure that doubts regarding the identity
of the evidence are removed through the monitoring and tracking of
the movements of the seized drugs from the accused, to the police,
to the forensic chemist, and finally to the court. 26 Malillin v. People
was the first in a growing number of cases to explain the importance
of chain of custody in dangerous drugs cases, to wit: ESAHca
As a method of authenticating evidence, the chain of custody rule
requires that the admission of an exhibit be preceded by evidence
sufficient to support a finding that the matter in question is what the
proponent claims it to be. It would include testimony about every link
in the chain, from the moment the item was picked up to the time it
is offered into evidence, in such a way that every person who
touched the exhibit would describe how and from whom it was
received, where it was and what happened to it while in the witness'
possession, the condition in which it was received and the condition
in which it was delivered to the next link in the chain. These witnesses
would then describe the precautions taken to ensure that there had
been no change in the condition of the item and no opportunity for
someone not in the chain to have possession of the same. 27
Section 1 (b) of DDB Regulation No. 1, Series of 2002, 28 defines
chain of custody as follows:
b. "Chain of Custody" means the duly recorded authorized
movements and custody of seized drugs or controlled chemicals or
plant sources of dangerous drugs or laboratory equipment of each
stage, from the time of seizure/confiscation to receipt in the forensic
laboratory to safekeeping to presentation in court for destruction.
Such record of movements and custody of seized item shall include
the identity and signature of the person who held temporary custody
of the seized item, the date and time when such transfer of custody
were made in the course of safekeeping and used in court as
evidence, and the final disposition;
Paragraph 1, Section 21, Article II of R.A. No. 9165, provides for
safeguards for the protection of the identity and integrity of
dangerous drugs seized, to wit: EaICAD
SEC. 21. Custody and Disposition of Confiscated, Seized, and/or
Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs,
Controlled Precursors and Essential Chemicals,
Instruments/Paraphernalia and/or Laboratory Equipment. — The
PDEA shall take charge and have custody of all dangerous drugs,
plant sources of dangerous drugs controlled precursors and essential
chemicals, as well as instruments/paraphernalia and/or laboratory
equipment so confiscated, seized and/or surrendered, for proper
disposition in the following manner:
(1) The apprehending team having initial custody and control
of the drugs shall, immediately after seizure and confiscation,
physically inventory and photograph the same in 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
copies of the inventory and be given a copy thereof.
People v. Habana thoroughly discusses the proper procedure for the
custody of seized or confiscated items in dangerous drugs cases in
order to ensure their identity and integrity, as follows:
Usually, the police officer who seizes the suspected substance turns
it over to a supervising officer, who would then send it by courier to
the police crime laboratory for testing. Since it is unavoidable that
possession of the substance changes hand a number of times, it is
imperative for the officer who seized the substance from the suspect
to place his marking on its plastic container and seal the same,
preferably with adhesive tape that cannot be removed without
leaving a tear on the plastic container. At the trial, the officer can
then identify the seized substance and the procedure he observed
to preserve its integrity until it reaches the crime laboratory.
If the substance is not in a plastic container, the officer should put it
in one and seal the same. In this way the substance would assuredly
reach the laboratory in the same condition it was seized from the
accused. Further, after the laboratory technician tests and verifies
the nature of the substance in the container, he should put his own
mark on the plastic container and seal it again with a new seal since
the police officer's seal has been broken. At the trial, the technician
can then describe the sealed condition of the plastic container when
it was handed to him and testify on the procedure he took
afterwards to preserve its integrity. TaDSHC
If the sealing of the seized substance has not been made, the
prosecution would have to present every police officer, messenger,
laboratory technician, and storage personnel, the entire chain of
custody, no matter how briefly one's possession has been. Each of
them has to testify that the substance, although unsealed, has not
been tampered with or substituted while in his care. 29
Section 21 (a) of the Implementing Rules and Regulations (IRR) of
R.A. No. 9165 further elaborates, and provides for, the possibility
of non-compliance with the prescribed procedure:
(a) The apprehending officer/team having initial custody and
control of the drugs shall, immediately after seizure and confiscation,
physically inventory and photograph the same in 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
copies of the inventory and be given a copy thereof: Provided, that
the physical inventory and photograph shall be conducted at the
place where the search warrant is served; or at the nearest police
station or at the nearest office of the apprehending officer/team,
whichever is practicable, in case of warrantless seizures; Provided,
further that non-compliance with these requirements under justifiable
grounds, as long as the integrity and the evidentiary value of the
seized items are properly preserved by the apprehending
officer/team, shall not render void and invalid such seizures of and
custody over said items. [Emphasis supplied]
Accordingly, non-compliance with the prescribed procedural
requirements will not necessarily render the seizure and custody of
the items void and invalid, provided that (i) there is a justifiable
ground for such non-compliance, and (ii) the integrity and
evidentiary value of the seized items are properly preserved. In this
case, however, no justifiable ground is found availing, and it is
apparent that there was a failure to properly preserve the integrity
and evidentiary value of the seized items to ensure the identity of
the corpus delicti from the time of seizure to the time of presentation
in court. A review of the testimonies of the prosecution witnesses and
the documentary records of the case reveals irreparably broken
links in the chain of custody. CTAIHc
According to the apprehending police officers in their Joint Affidavit,
the following were confiscated from the accused, to wit:
a) Several pcs of used empty plastic sachets containing
suspected shabu residues.
b) Eight used (8) disposable lighters (two (2) pcs colored
orange, two (2) pcs colored yellow, one (1) pc colored green & one
(1) pc colored white).
c) Several pcs of used rolled aluminum foil containing
suspected shabu residues.
d) Several pcs of used cut aluminum foil containing suspected
shabu residues.
e) One (1) pc glass tube containing suspected shabu residues.
30
[Emphases supplied]
At the police station, the case, the accused, and the above-
mentioned items were indorsed to Duty Investigator Senior Police
Officer 1 Pedro Urbano, Jr. (SPO1 Urbano) for proper disposition.
31 A letter-request for laboratory examination was prepared by
Police Superintendent Edgar Orduna Basbag for the following
items: TaDIHc
a) Pieces of used empty small plastic sachets with suspected
shabu residues marked "DC&A-1."
b) Pieces of used rolled and cut aluminum foil with suspected
shabu residues marked "DC&A-2."
c) Pieces of used cut aluminum foil with suspected shabu
residues marked "DC&A-3." 32
[Emphases supplied]
The letter-request and above-mentioned items were submitted to
P/Insp. Maranion by SPO3 Froilan Esteban (SPO3 Esteban). Final
Chemistry Report No. D-042-06L listed the specimens which were
submitted for testing, to wit:
SPECIMENS SUBMITTED:
A — A1 to A115 — One Hundred fifteen (115) open transparent
plastic sachet with tag each containing suspected shabu residue
without markings.
B — B1 to B11 — Eleven (11) rolled used aluminum foil with tag
each containing suspected shabu residue without markings.
C — C1 to C49 — Forty-nine (49) used aluminum foil with tag each
containing suspected shabu residue without markings. 33
[Emphases supplied]
Three days after the subject items were seized, or on September 5,
2006, a Confiscation Receipt was issued by PO1 Azardon and PO1
Dela Cruz, which reads: DITEAc
DCPS AID SOTG 05 September 2006
CONFISCATION RECEIPT
TO WHOM IT MAY CONCERN:
THIS IS TO CERTIFY that on or about 12:45 noon of September 4,
2006, we together with our precinct supervisor, SPO4 Pedro Belen
Jr., and SWAT members composed of SPO1 Marlon Decano, PO3
Manuel Garcia, PO2 Adriano Cepiroto and PO1 Aldrin Guarin
apprehended the following names of persons of ARNOLD
MARTINEZ Y ANGELES, 37 yrs. old, married, jobless, a resident of
Lucao Dist., this city; EDGAR DIZON Y FERRER, 36 yrs old, single,
tricycle driver, a resident of 471 Lucao Dist., this city. REZIN
MARTINEZ Y CAROLINO, 44 yrs old, married, jitney driver, a
resident of Lucao District this city; ROLAND DORIA Y DIAZ, 39 yrs
old, married, businessman, resident of Cabeldatan, Malasiqui,
Pangasinan and RAFAEL GONZALES Y CUNANAN, 49 yrs old,
separated, jobless and a resident of Trinidad Subd., Arellano-Bani
this city.
Suspects were duly informed of their constitutional rights and were
brought to Dagupan City Police Station, Perez Market Site Dagupan
City and indorsed to Duty Desk Officer to record the incident and
the sachet of suspected Shabu Paraphernalias were brought to PNP
Crime Laboratory, Lingayen, Pangasinan for Laboratory
Examination.
Seizing Officer:
(sgd.) (sgd.)
PO1 Bernard B Azardon PO1 Alejandro Dela Cruz
Affiant Affiant
Remarks:
Refused to Signed
Refused to Signed
Refused to Signed
Refused to Signed
Refused to Signed 34
[Emphases supplied]
The 115 open transparent plastic sachets, 11 pieces of rolled used
aluminum foil, and 27 (of the 49) pieces of used aluminum foil, all
containing shabu residue, as identified in the Final Chemistry Report,
were presented in court and marked as Exhibits "H" and series, "I"
and series, and "J" and series, respectively. Said items were
identified by PO1 Azardon and P/Insp. Maranion at the witness
stand. 35
The CA ruled that the integrity and evidentiary value of the subject
items were properly preserved as there was sufficient evidence to
prove that the items seized from the accused were the same ones
forwarded to the crime laboratory for examination, as shown in the
Confiscation Receipt and the letter-request for laboratory
examination. TIDHCc
A review of the chain of custody indicates, however, that the CA is
mistaken.
First, the apprehending team failed to comply with Section 21 of
R.A. No. 9165. After seizure and confiscation of the subject items, no
physical inventory was conducted in the presence of the accused, or
their representative or counsel, a representative from the media and
the DOJ, and any elected public official. Thus, no inventory was
prepared, signed, and provided to the accused in the manner
required by law. PO1 Azardon, in his testimony, 36 admitted that
no photographs were taken. The only discernable reason proffered
by him for the failure to comply with the prescribed procedure was
that the situation happened so suddenly. Thus:
Q: But upon receiving such report from that jeepney driver you
immediately formed a group and went to the place of Rafael
Gonzales?
A: Yes, sir.
Q: Such that you did not even inform the PDEA before you
barged in that place of Rafael Gonzales?
A: It was so suddenly, [sic] sir.
Q: And that explains the reason why you were not able to
have pictures taken, is that correct? cHCIDE
A: Yes, sir. 37
[Emphasis supplied]
The Court does not find such to be a justifiable ground to excuse
non-compliance. The suddenness of the situation cannot justify non-
compliance with the requirements. The police officers were not
prevented from preparing an inventory and taking photographs. In
fact, Section 21 (a) of the IRR of R.A. No. 9165 provides specifically
that in case of warrantless seizures, the inventory and photographs
shall be done at the nearest police station or at the nearest office
of the apprehending officer/team. Whatever effect the suddenness
of the situation may have had should have dissipated by the time
they reached the police station, as the suspects had already been
arrested and the items seized. Moreover, it has been held that in
case of warrantless seizures nothing prevents the apprehending
officer from immediately conducting the physical inventory and
photography of the items at their place of seizure, as it is more in
keeping with the law's intent to preserve their integrity and
evidentiary value. 38
This Court has repeatedly reversed conviction in drug cases for
failure to comply with Section 21 of R.A. No. 9165, resulting in the
failure to properly preserve the integrity and evidentiary value of
the seized items. Some cases are People v. Garcia, 39 People v.
Dela Cruz, 40 People v. Dela Cruz, 41 People v. Santos, Jr., 42
People v. Nazareno, 43 People v. Orteza, 44 Zarraga v. People,
45 and People v. Kimura. 46
Second, the subject items were not properly marked. The case of
People v. Sanchez is instructive on the requirement of marking, to
wit:
What Section 21 of R.A. No. 9165 and its implementing rule do not
expressly specify is the matter of "marking" of the seized items in
warrantless seizures to ensure that the evidence seized upon
apprehension is the same evidence subjected to inventory and
photography when these activities are undertaken at the police
station rather than at the place of arrest. Consistency with the "chain
of custody" rule requires that the "marking" of the seized items —
to truly ensure that they are the same items that enter the chain and
are eventually the ones offered in evidence — should be done (1)
in the presence of the apprehended violator (2) immediately upon
confiscation. This step initiates the process of protecting innocent
persons from dubious and concocted searches, and of protecting as
well the apprehending officers from harassment suits based on
planting of evidence under Section 29 and on allegations of
robbery or theft. aSIHcT
For greater specificity, "marking" means the placing by the
apprehending officer or the poseur-buyer of his/her initials and
signature on the item/s seized. . . . Thereafter, the seized items shall
be placed in an envelope or an evidence bag unless the type and
quantity of the seized items require a different type of handling
and/or container. The evidence bag or container shall accordingly
be signed by the handling officer and turned over to the next officer
in the chain of custody. 47 [Emphasis in the original]
Nowhere in the testimony of PO1 Azardon or in his Joint Affidavit
with PO1 Dela Cruz does it appear that the subject items were at
all marked. It was only in the letter-request for laboratory
examination that the subject items were indicated to have been
marked with "DC&A-1," "DC&A-2" and "DC&A-3." There is no
showing, however, as to who made those markings and when they
were made. Moreover, those purported markings were never
mentioned when the subject items were identified by the prosecution
witnesses when they took the stand.
The markings appear to pertain to a group of items, that is, empty
plastic sachets, rolled and cut aluminium foil, and cut aluminium foil,
but do not specifically pertain to any individual item in each group.
Furthermore, it was only in the Chemistry Report 48 that the precise
number of each type of item was indicated and enumerated. The
Court notes that in all documents prior to said report, the subject
items were never accurately quantified but only described as
"pieces," 49 "several pcs," 50 and "shabu paraphernalias." 51
Strangely, the Chemistry Report indicates that all the subject items
had "no markings," although each item was reported to have been
marked by P/Insp. Maranion in the course of processing the subject
items during laboratory examination and testing. 52 Doubt,
therefore, arises as to the identity of the subject items. It cannot be
determined with moral certainty that the subject items seized from
the accused were the same ones subjected to the laboratory
examination and presented in court.
This Court has acquitted the accused for the failure and irregularity
in the marking of seized items in dangerous drugs cases, such as
Zarraga v. People, 53 People v. Kimura, 54 and People v. Laxa. 55
ADaECI
Third, the Confiscation Receipt relied upon by the prosecution and
the courts below gives rise to more uncertainty. Instead of being
prepared on the day of the seizure of the items, it was prepared
only three days after. More important, the receipt did not even
indicate exactly what items were confiscated and their quantity.
These are basic information that a confiscation receipt should
provide. The only information contained in the Confiscation Receipt
was the fact of arrest of the accused and the general description of
the subject items as "the sachet of suspected Shabu paraphernalias
were brought to the PNP Crime Laboratory." The receipt is made
even more dubious by PO1 Azardon's admission in his testimony 56
that he did not personally prepare the Confiscation Receipt and he
did not know exactly who did so.
Fourth, according to the Certification 57 issued by the Dagupan
Police Station, the subject items were indorsed by PO1 Dela Cruz to
Duty Investigator SPO1 Urbano for proper disposition. These were
later turned over by SPO3 Esteban to P/Insp. Maranion. There is,
however, no showing of how and when the subject items were
transferred from SPO1 Urbano to SPO3 Esteban.
Fifth, P/Insp. Maranion appears to be the last person in the chain of
custody. No witness testified on how the subject items were kept
after they were tested prior to their presentation in court. This Court
has highlighted similar shortcomings in People v. Cervantes, 58
People v. Garcia, 59 People v. Sanchez, 60 and Malillin v. People.
61
More irregularities further darken the cloud as to the guilt of the
accused. Contrary to PO1 Azardon's testimony 62 that they were
tipped off by a concerned citizen while at the police station, the
Letter 63 to the Executive Director of the DDB states that the
apprehending officers were tipped off "while conducting
monitoring/surveillance." Said letter also indicates, as does the
Confiscation Receipt, that the arrest and seizure occurred on
September 4, 2006, and not September 2, 2006, as alleged in the
Information. It was also mentioned in the aforementioned
Certification of the Dagupan Police and Joint Affidavit of the police
officers that a glass tube suspected to contain shabu residue was
also confiscated from the accused. Interestingly, no glass tube was
submitted for laboratory examination. HAIaEc
In sum, numerous lapses and irregularities in the chain of custody
belie the prosecution's position that the integrity and evidentiary
value of the subject items were properly preserved. The two
documents specifically relied on by the CA, the Confiscation Receipt
and the letter-request for laboratory examination, have been shown
to be grossly insufficient in proving the identity of the corpus delicti.
The corpus delicti in dangerous drugs cases constitutes the drug itself.
This means that proof beyond reasonable doubt of the identity of
the prohibited drug is essential before the accused can be found
guilty. 64
Regarding the lack of prior coordination with the PDEA provided in
Section 86 of R.A. No. 9165, in People v. Sta. Maria, 65 this Court
held that said section was silent as to the consequences of such
failure, and said silence could not be interpreted as a legislative
intent to make an arrest without the participation of PDEA illegal,
nor evidence obtained pursuant to such an arrest inadmissible.
Section 86 is explicit only in saying that the PDEA shall be the "lead
agency" in the investigation and prosecution of drug-related cases.
Therefore, other law enforcement bodies still possess authority to
perform similar functions as the PDEA as long as illegal drugs cases
will eventually be transferred to the latter.
Let it be stressed that non-compliance with Section 21 of R.A. No.
9165 does not affect the admissibility of the evidence but only its
weight. 66 Thus, had the subject items in this case been admissible,
their evidentiary merit and probative value would be insufficient to
warrant conviction.
It may be true that where no ill motive can be attributed to the police
officers, the presumption of regularity in the performance of official
duty should prevail. However, such presumption obtains only when
there is no deviation from the regular performance of duty. 67
Where the official act in question is irregular on its face, the
presumption of regularity cannot stand. AEITDH
In this case, the official acts of the law enforcers were clearly shown
and proven to be irregular. When challenged by the evidence of a
flawed chain of custody, the presumption of regularity cannot
prevail over the presumption of innocence of the accused. 68
This Court once again takes note of the growing number of acquittals
for dangerous drugs cases due to the failure of law enforcers to
observe the proper arrest, search and seizure procedure under the
law. 69 Some bona fide arrests and seizures in dangerous drugs
cases result in the acquittal of the accused because drug
enforcement operatives compromise the integrity and evidentiary
worth of the seized items. It behooves this Court to remind law
enforcement agencies to exert greater effort to apply the rules and
procedures governing the custody, control, and handling of seized
drugs.
It is recognized that strict compliance with the legal prescriptions of
R.A. No. 9165 may not always be possible. Thus, as earlier stated,
non-compliance therewith is not necessarily fatal. However, the
lapses in procedure must be recognized, addressed and explained
in terms of their justifiable grounds, and the integrity and evidentiary
value of the evidence seized must be shown to have been preserved.
70
On a final note, this Court takes the opportunity to be instructive on
Sec. 11 71 (Possession of Dangerous Drugs) and Sec. 15 72 (Use of
Dangerous Drugs) of R.A. No. 9165, with regard to the charges that
are filed by law enforcers. This Court notes the practice of law
enforcers of filing charges under Sec. 11 in cases where the presence
of dangerous drugs as basis for possession is only and solely in the
form of residue, being subsumed under the last paragraph of Sec.
11. Although not incorrect, it would be more in keeping with the intent
of the law to file charges under Sec. 15 instead in order to
rehabilitate first time offenders of drug use, provided that there is
a positive confirmatory test result as required under Sec. 15. The
minimum penalty under the last paragraph of Sec. 11 for the
possession of residue is imprisonment of twelve years and one day,
while the penalty under Sec. 15 for first time offenders of drug use
is a minimum of six months rehabilitation in a government center. To
file charges under Sec. 11 on the basis of residue alone would
frustrate the objective of the law to rehabilitate drug users and
provide them with an opportunity to recover for a second chance at
life.
In the case at bench, the presence of dangerous drugs was only in
the form of residue on the drug paraphernalia, and the accused
were found positive for use of dangerous drugs. Granting that the
arrest was legal, the evidence obtained admissible, and the chain
of custody intact, the law enforcers should have filed charges under
Sec. 15, R.A. No. 9165 or for use of dangerous drugs and, if there
was no residue at all, they should have been charged under Sec. 14
73 (Possession of Equipment, Instrument, Apparatus and Other
Paraphernalia for Dangerous Drugs During Parties, Social
Gatherings or Meetings). Sec. 14 provides that the maximum
penalty under Sec. 12 74 (Possession of Possession of Equipment,
Instrument, Apparatus and Other Paraphernalia for Dangerous
Drugs) shall be imposed on any person who shall possess any
equipment, instrument, apparatus and other paraphernalia for
dangerous drugs. Under Sec. 12, the maximum penalty is
imprisonment of four years and a fine of P50,000.00. In fact, under
the same section, the possession of such equipment, apparatus or
other paraphernalia is prima facie evidence that the possessor has
used a dangerous drug and shall be presumed to have violated Sec.
15. ETDaIC
In order to effectively fulfill the intent of the law to rehabilitate drug
users, this Court thus calls on law enforcers and prosecutors in
dangerous drugs cases to exercise proper discretion in filing charges
when the presence of dangerous drugs is only and solely in the form
of residue and the confirmatory test required under Sec. 15 is
positive for use of dangerous drugs. In such cases, to afford the
accused a chance to be rehabilitated, the filing of charges for or
involving possession of dangerous drugs should only be done when
another separate quantity of dangerous drugs, other than mere
residue, is found in the possession of the accused as provided for in
Sec. 15.
WHEREFORE, the August 7, 2009 Decision of the Court of Appeals
in CA-G.R. HC-NO. 03269 is REVERSED and SET ASIDE and another
judgment entered ACQUITTING the accused and ordering their
immediate release from detention, unless they are confined for any
other lawful cause.
Let a copy of this decision be furnished the Director of the Bureau of
Corrections, Muntinlupa City, for immediate implementation. The
Director of the Bureau of Corrections is directed to report to this
Court within five days from receipt of this decision the action he has
taken. Copies shall also be furnished the Director-General,
Philippine National Police, and the Director-General, Philippine
Drugs Enforcement Agency, for their information and guidance.
The Regional Trial Court, Branch 41, Dagupan City, is directed to
turn over the seized items to the Dangerous Drugs Board for
destruction in accordance with law.
SO ORDERED. HEScID
SECOND DIVISION
[G.R. No. 172953. April 30, 2008.]
JUNIE MALLILLIN Y LOPEZ, petitioner, vs.
PEOPLE OF THE PHILIPPINES, respondent.
DECISION
TINGA, J p:
The presumption of regularity in the performance of official functions
cannot by its lonesome overcome the constitutional presumption of
innocence. Evidence of guilt beyond reasonable doubt and nothing
else can eclipse the hypothesis of guiltlessness. And this burden is met
not by bestowing distrust on the innocence of the accused but by
obliterating all doubts as to his culpability. ECaAHS
In this Petition for Review 1 under Rule 45 of the Rules of Court, Junie
Malillin y Lopez (petitioner) assails the Decision 2 of the Court of
Appeals dated 27 January 2006 as well as its Resolution 3 dated
30 May 2006 denying his motion for reconsideration. The
challenged decision has affirmed the Decision 4 of the Regional Trial
Court (RTC) of Sorsogon City, Branch 52 5 which found petitioner
guilty beyond reasonable doubt of illegal possession of
methamphetamine hydrochloride, locally known as shabu, a
prohibited drug.
The antecedent facts follow.
On the strength of a warrant 6 of search and seizure issued by the
RTC of Sorsogon City, Branch 52, a team of five police officers
raided the residence of petitioner in Barangay Tugos, Sorsogon City
on 4 February 2003. The team was headed by P/Insp. Catalino
Bolanos (Bolanos), with PO3 Roberto Esternon (Esternon), SPO1
Pedro Docot, SPO1 Danilo Lasala and SPO2 Romeo Gallinera
(Gallinera) as members. The search — conducted in the presence of
barangay kagawad Delfin Licup as well as petitioner himself, his
wife Sheila and his mother, Norma — allegedly yielded two (2)
plastic sachets of shabu and five (5) empty plastic sachets containing
residual morsels of the said substance. AECIaD
Accordingly, petitioner was charged with violation of Section 11, 7
Article II of Republic Act No. 9165, otherwise known as The
Comprehensive Dangerous Drugs Act of 2002, in a criminal
information whose inculpatory portion reads:
That on or about the 4th day of February 2003, at about 8:45 in
the morning in Barangay Tugos, Sorsogon City, Philippines, the said
accused did then and there willfully, unlawfully and feloniously have
in his possession, custody and control two (2) plastic sachets of
methamphetamine hydrochloride [or] "shabu" with an aggregate
weight of 0.0743 gram, and four empty sachets containing "shabu"
residue, without having been previously authorized by law to
possess the same.
CONTRARY TO LAW. 8
Petitioner entered a negative plea. 9 At the ensuing trial, the
prosecution presented Bolanos, Arroyo and Esternon as witnesses.
Taking the witness stand, Bolanos, the leader of the raiding team,
testified on the circumstances surrounding the search as follows: that
he and his men were allowed entry into the house by petitioner after
the latter was shown the search warrant; that upon entering the
premises, he ordered Esternon and barangay kagawad Licup,
whose assistance had previously been requested in executing the
warrant, to conduct the search; that the rest of the police team
positioned themselves outside the house to make sure that nobody
flees; that he was observing the conduct of the search from about a
meter away; that the search conducted inside the bedroom of
petitioner yielded five empty plastic sachets with suspected shabu
residue contained in a denim bag and kept in one of the cabinets,
and two plastic sachets containing shabu which fell off from one of
the pillows searched by Esternon — a discovery that was made in
the presence of petitioner. 10 On cross examination, Bolanos
admitted that during the search, he was explaining its progress to
petitioner's mother, Norma, but that at the same time his eyes were
fixed on the search being conducted by Esternon. 11
Esternon testified that the denim bag containing the empty plastic
sachets was found "behind" the door of the bedroom and not inside
the cabinet; that he then found the two filled sachets under a pillow
on the bed and forthwith called on Gallinera to have the items
recorded and marked. 12 On cross, he admitted that it was he alone
who conducted the search because Bolanos was standing behind him
in the living room portion of the house and that petitioner handed to
him the things to be searched, which included the pillow in which the
two sachets of shabu were kept; 13 that he brought the seized items
to the Balogo Police Station for a "true inventory", then to the trial
court 14 and thereafter to the laboratory. 15
Supt. Lorlie Arroyo (Arroyo), the forensic chemist who administered
the examination on the seized items, was presented as an expert
witness to identify the items submitted to the laboratory. She
revealed that the two filled sachets were positive of shabu and that
of the five empty sachets, four were positive of containing residue
of the same substance. 16 She further admitted that all seven sachets
were delivered to the laboratory by Esternon in the afternoon of the
same day that the warrant was executed except that it was not she
but rather a certain Mrs. Ofelia Garcia who received the items from
Esternon at the laboratory. 17
The evidence for the defense focused on the irregularity of the
search and seizure conducted by the police operatives. Petitioner
testified that Esternon began the search of the bedroom with Licup
and petitioner himself inside. However, it was momentarily
interrupted when one of the police officers declared to Bolanos that
petitioner's wife, Sheila, was tucking something inside her
underwear. Forthwith, a lady officer arrived to conduct the search
of Sheila's body inside the same bedroom. At that point, everyone
except Esternon was asked to step out of the room. So, it was in his
presence that Sheila was searched by the lady officer. Petitioner
was then asked by a police officer to buy cigarettes at a nearby
store and when he returned from the errand, he was told that nothing
was found on Sheila's body. 18 Sheila was ordered to transfer to
the other bedroom together with her children. 19
Petitioner asserted that on his return from the errand, he was
summoned by Esternon to the bedroom and once inside, the officer
closed the door and asked him to lift the mattress on the bed. And
as he was doing as told, Esternon stopped him and ordered him to
lift the portion of the headboard. In that instant, Esternon showed
him "sachet of shabu" which according to him came from a pillow on
the bed. 20 Petitioner's account in its entirety was corroborated in
its material respects by Norma, barangay kagawad Licup and
Sheila in their testimonies. Norma and Sheila positively declared that
petitioner was not in the house for the entire duration of the search
because at one point he was sent by Esternon to the store to buy
cigarettes while Sheila was being searched by the lady officer. 21
Licup for his part testified on the circumstances surrounding the
discovery of the plastic sachets. He recounted that after the five
empty sachets were found, he went out of the bedroom and into the
living room and after about three minutes, Esternon, who was left
inside the bedroom, exclaimed that he had just found two filled
sachets. 22
On 20 June 2004 the trial court rendered its Decision declaring
petitioner guilty beyond reasonable doubt of the offense charged.
Petitioner was condemned to prison for twelve years (12) and one
(1) day to twenty (20) years and to pay a fine of P300,000.00. 23
The trial court reasoned that the fact that shabu was found in the
house of petitioner was prima facie evidence of petitioner's animus
possidendi sufficient to convict him of the charge inasmuch as things
which a person possesses or over which he exercises acts of
ownership are presumptively owned by him. It also noted petitioner's
failure to ascribe ill motives to the police officers to fabricate
charges against him. 24
Aggrieved, petitioner filed a Notice of Appeal. 25 In his Appeal
Brief 26 filed with the Court of Appeals, petitioner called the
attention of the court to certain irregularities in the manner by which
the search of his house was conducted. For its part, the Office of the
Solicitor General (OSG) advanced that on the contrary, the
prosecution evidence sufficed for petitioner's conviction and that the
defense never advanced any proof to show that the members of the
raiding team was improperly motivated to hurl false charges against
him and hence the presumption that they had regularly performed
their duties should prevail. 27
On 27 January 2006, the Court of Appeals rendered the assailed
decision affirming the judgment of the trial court but modifying the
prison sentence to an indeterminate term of twelve (12) years as
minimum to seventeen (17) years as maximum. 28 Petitioner moved
for reconsideration but the same was denied by the appellate court.
29 Hence, the instant petition which raises substantially the same
issues. EcSCHD
In its Comment, 30 the OSG bids to establish that the raiding team
had regularly performed its duties in the conduct of the search. 31
It points to petitioner's incredulous claim that he was framed up by
Esternon on the ground that the discovery of the two filled sachets
was made in his and Licup's presence. It likewise notes that
petitioner's bare denial cannot defeat the positive assertions of the
prosecution and that the same does not suffice to overcome the
prima facie existence of animus possidendi.
This argument, however, hardly holds up to what is revealed by the
records.
Prefatorily, although the trial court's findings of fact are entitled to
great weight and will not be disturbed on appeal, this rule does not
apply where facts of weight and substance have been overlooked,
misapprehended or misapplied in a case under appeal. 32 In the
case at bar, several circumstances obtain which, if properly
appreciated, would warrant a conclusion different from that arrived
at by the trial court and the Court of Appeals.
Prosecutions for illegal possession of prohibited drugs necessitates
that the elemental act of possession of a prohibited substance be
established with moral certainty, together with the fact that the same
is not authorized by law. The dangerous drug itself constitutes the
very corpus delicti of the offense and the fact of its existence is vital
to a judgment of conviction. 33 Essential therefore in these cases is
that the identity of the prohibited drug be established beyond
doubt. 34 Be that as it may, the mere fact of unauthorized possession
will not suffice to create in a reasonable mind the moral certainty
required to sustain a finding of guilt. More than just the fact of
possession, the fact that the substance illegally possessed in the first
place is the same substance offered in court as exhibit must also be
established with the same unwavering exactitude as that requisite to
make a finding of guilt. The chain of custody requirement performs
this function in that it ensures that unnecessary doubts concerning the
identity of the evidence are removed. 35
As a method of authenticating evidence, the chain of custody rule
requires that the admission of an exhibit be preceded by evidence
sufficient to support a finding that the matter in question is what the
proponent claims it to be. 36 It would include testimony about every
link in the chain, from the moment the item was picked up to the time
it is offered into evidence, in such a way that every person who
touched the exhibit would describe how and from whom it was
received, where it was and what happened to it while in the witness'
possession, the condition in which it was received and the condition
in which it was delivered to the next link in the chain. These witnesses
would then describe the precautions taken to ensure that there had
been no change in the condition of the item and no opportunity for
someone not in the chain to have possession of the same. 37
While testimony about a perfect chain is not always the standard
because it is almost always impossible to obtain, an unbroken chain
of custody becomes indispensable and essential when the item of
real evidence is not distinctive and is not readily identifiable, or
when its condition at the time of testing or trial is critical, or when a
witness has failed to observe its uniqueness. 38 The same standard
likewise obtains in case the evidence is susceptible to alteration,
tampering, contamination 39 and even substitution and exchange.
40 In other words, the exhibit's level of susceptibility to fungibility,
alteration or tampering — without regard to whether the same is
advertent or otherwise not — dictates the level of strictness in the
application of the chain of custody rule.
Indeed, the likelihood of tampering, loss or mistake with respect to
an exhibit is greatest when the exhibit is small and is one that has
physical characteristics fungible in nature and similar in form to
substances familiar to people in their daily lives. 41 Graham vs.
State 42 positively acknowledged this danger. In that case where a
substance later analyzed as heroin — was handled by two police
officers prior to examination who however did not testify in court on
the condition and whereabouts of the exhibit at the time it was in
their possession — was excluded from the prosecution evidence, the
court pointing out that the white powder seized could have been
indeed heroin or it could have been sugar or baking powder. It ruled
that unless the state can show by records or testimony, the continuous
whereabouts of the exhibit at least between the time it came into
the possession of police officers until it was tested in the laboratory
to determine its composition, testimony of the state as to the
laboratory's findings is inadmissible. 43
A unique characteristic of narcotic substances is that they are not
readily identifiable as in fact they are subject to scientific analysis
to determine their composition and nature. The Court cannot
reluctantly close its eyes to the likelihood, or at least the possibility,
that at any of the links in the chain of custody over the same there
could have been tampering, alteration or substitution of substances
from other cases — by accident or otherwise — in which similar
evidence was seized or in which similar evidence was submitted for
laboratory testing. Hence, in authenticating the same, a standard
more stringent than that applied to cases involving objects which are
readily identifiable must be applied, a more exacting standard that
entails a chain of custody of the item with sufficient completeness if
only to render it improbable that the original item has either been
exchanged with another or been contaminated or tampered
with. CAIaHS
A mere fleeting glance at the records readily raises significant
doubts as to the identity of the sachets of shabu allegedly seized
from petitioner. Of the people who came into direct contact with the
seized objects, only Esternon and Arroyo testified for the specific
purpose of establishing the identity of the evidence. Gallinera, to
whom Esternon supposedly handed over the confiscated sachets for
recording and marking, as well as Garcia, the person to whom
Esternon directly handed over the seized items for chemical analysis
at the crime laboratory, were not presented in court to establish the
circumstances under which they handled the subject items. Any
reasonable mind might then ask the question: Are the sachets of
shabu allegedly seized from petitioner the very same objects
laboratory tested and offered in court as evidence?
The prosecution's evidence is incomplete to provide an affirmative
answer. Considering that it was Gallinera who recorded and
marked the seized items, his testimony in court is crucial to affirm
whether the exhibits were the same items handed over to him by
Esternon at the place of seizure and acknowledge the initials marked
thereon as his own. The same is true of Garcia who could have, but
nevertheless failed, to testify on the circumstances under which she
received the items from Esternon, what she did with them during the
time they were in her possession until before she delivered the same
to Arroyo for analysis. CDHAcI
The prosecution was thus unsuccessful in discharging its burden of
establishing the identity of the seized items because it failed to offer
not only the testimony of Gallinera and Garcia but also any
sufficient explanation for such failure. In effect, there is no
reasonable guaranty as to the integrity of the exhibits inasmuch as
it failed to rule out the possibility of substitution of the exhibits, which
cannot but inure to its own detriment. This holds true not only with
respect to the two filled sachets but also to the five sachets allegedly
containing morsels of shabu.
Also, contrary to what has been consistently claimed by the
prosecution that the search and seizure was conducted in a regular
manner and must be presumed to be so, the records disclose a series
of irregularities committed by the police officers from the
commencement of the search of petitioner's house until the submission
of the seized items to the laboratory for analysis. The Court takes
note of the unrebutted testimony of petitioner, corroborated by that
of his wife, that prior to the discovery of the two filled sachets
petitioner was sent out of his house to buy cigarettes at a nearby
store. Equally telling is the testimony of Bolanos that he posted some
of the members of the raiding team at the door of petitioner's house
in order to forestall the likelihood of petitioner fleeing the scene. By
no stretch of logic can it be conclusively explained why petitioner
was sent out of his house on an errand when in the first place the
police officers were in fact apprehensive that he would flee to
evade arrest. This fact assumes prime importance because the two
filled sachets were allegedly discovered by Esternon immediately
after petitioner returned to his house from the errand, such that he
was not able to witness the conduct of the search during the brief
but crucial interlude that he was away.
It is also strange that, as claimed by Esternon, it was petitioner
himself who handed to him the items to be searched including the
pillow from which the two filled sachets allegedly fell. Indeed, it is
contrary to ordinary human behavior that petitioner would hand
over the said pillow to Esternon knowing fully well that illegal drugs
are concealed therein. In the same breath, the manner by which the
search of Sheila's body was brought up by a member of the raiding
team also raises serious doubts as to the necessity thereof. The
declaration of one of the police officers that he saw Sheila tuck
something in her underwear certainly diverted the attention of the
members of petitioner's household away from the search being
conducted by Esternon prior to the discovery of the two filled
sachets. Lest it be omitted, the Court likewise takes note of Esternon's
suspicious presence in the bedroom while Sheila was being searched
by a lady officer. The confluence of these circumstances by any
objective standard of behavior contradicts the prosecution's claim of
regularity in the exercise of duty. STIcaE
Moreover, Section 21 44 of the Implementing Rules and Regulations
of R.A. No. 9165 clearly outlines the post-seizure procedure in
taking custody of seized drugs. In a language too plain to require a
different construction, it mandates that the officer acquiring initial
custody of drugs under a search warrant must conduct the
photographing and the physical inventory of the item at the place
where the warrant has been served. Esternon deviated from this
procedure. It was elicited from him that at the close of the search of
petitioner's house, he brought the seized items immediately to the
police station for the alleged purpose of making a "true inventory"
thereof, but there appears to be no reason why a true inventory
could not be made in petitioner's house when in fact the
apprehending team was able to record and mark the seized items
and there and then prepare a seizure receipt therefor. Lest it be
forgotten, the raiding team has had enough opportunity to cause the
issuance of the warrant which means that it has had as much time to
prepare for its implementation. While the final proviso in Section 21
of the rules would appear to excuse non-compliance therewith, the
same cannot benefit the prosecution as it failed to offer any
acceptable justification for Esternon's course of action.
Likewise, Esternon's failure to deliver the seized items to the court
demonstrates a departure from the directive in the search warrant
that the items seized be immediately delivered to the trial court with
a true and verified inventory of the same, 45 as required by Rule
126, Section 12 46 of the Rules of Court. People v. Go 47
characterized this requirement as mandatory in order to preclude
the substitution of or tampering with said items by interested parties.
48 Thus, as a reasonable safeguard, People vs. Del Castillo 49
declared that the approval by the court which issued the search
warrant is necessary before police officers can retain the property
seized and without it, they would have no authority to retain
possession thereof and more so to deliver the same to another
agency. 50 Mere tolerance by the trial court of a contrary practice
does not make the practice right because it is violative of the
mandatory requirements of the law and it thereby defeats the very
purpose for the enactment. 51
Given the foregoing deviations of police officer Esternon from the
standard and normal procedure in the implementation of the
warrant and in taking post-seizure custody of the evidence, the blind
reliance by the trial court and the Court of Appeals on the
presumption of regularity in the conduct of police duty is manifestly
misplaced. The presumption of regularity is merely just that — a
mere presumption disputable by contrary proof and which when
challenged by the evidence cannot be regarded as binding truth.
52 Suffice it to say that this presumption cannot preponderate over
the presumption of innocence that prevails if not overthrown by
proof beyond reasonable doubt. 53 In the present case the lack of
conclusive identification of the illegal drugs allegedly seized from
petitioner, coupled with the irregularity in the manner by which the
same were placed under police custody before offered in court,
strongly militates a finding of guilt. cSIACD
In our constitutional system, basic and elementary is the
presupposition that the burden of proving the guilt of an accused
lies on the prosecution which must rely on the strength of its own
evidence and not on the weakness of the defense. The rule is
invariable whatever may be the reputation of the accused, for the
law presumes his innocence unless and until the contrary is shown. 54
In dubio pro reo. When moral certainty as to culpability hangs in the
balance, acquittal on reasonable doubt inevitably becomes a matter
of right.
WHEREFORE, the assailed Decision of the Court of Appeals dated
27 January 2006 affirming with modification the judgment of
conviction of the Regional Trial Court of Sorsogon City, Branch 52,
and its Resolution dated 30 May 2006 denying reconsideration
thereof, are REVERSED and SET ASIDE. Petitioner Junie Malillin y
Lopez is ACQUITTED on reasonable doubt and is accordingly
ordered immediately released from custody unless he is being
lawfully held for another offense. HDTISa
The Director of the Bureau of Corrections is directed to implement
this Decision and to report to this Court the action taken hereon within
five (5) days from receipt.
SO ORDERED.
EN BANC
[G.R. No. L-7295. June 28, 1957.]
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.
MARINA PADAN Y ALOVA, COSME ESPINOSA, ERNESTO REYES
and JOSE FAJARDO, defendants. MARINA PADAN Y ALOVA
and JOSE FAJARDO, defendants-appellants.
Augusto Revilla for appellant Jose Fajardo.
W.M. Bayhon for appellant Marina Padan y Alova.
Solicitor General Ambrosio Padilla and Solicitor Jose P. Alejandro
for appellee.
SYLLABUS
1. CRIMINAL LAW; OFFENSE AGAINST MORALS AND
DECENCY; CLAIM OF ART. — The Supreme Court has had occasion
to consider offenses like the exhibition of still or moving pictures of
women in the nude, which it condemned for obscenity and offensive
to morals. In those cases, one might yet claim that there was involved
the element of art; that connoisseurs of the same, and painters and
sculptors might find inspiration in the showing of pictures in the nude,
or the human body exhibited in sheer nakedness as models in
tableaux vivants. But an actual exhibition of the sexual act,
preceded by acts of lasciviousness, can have no redeeming features.
In it, there is no room for art. One can see nothing in it but clear and
unmitigated obscenity, indecency and an offense to public morals,
inspiring and causing as it does, nothing but lust and lewdness, and
exerting a corrupting influence especially on the youth of the land.
Considering the seriousness of the crime, the relatively severe
penalty imposed by the trial court is proper.
DECISION
MONTEMAYOR, J p:
In the Court of First Instance of Manila, Marina Padan, Jose Fajardo
y Garcia, Cosme Espinosa, and Ernesto Reyes were charged with a
violation of Article 201 of the Revised Penal Code, said to have
been committed as follows:
That on or about the 13th day of September, 1953, in the city of
Manila, Philippines, the said accused conspiring and confederating
together and mutually helping one another, did then and there
willfully, unlawfully and feloniously exhibit or cause to be exhibited
inside a building at the corner of Camba Ext. and Morga Ext., Tondo,
this City, immoral scenes and acts, to wit: the said accused Jose
Fajador y Garcia, being then the manager and Ernesto Reyes y
Yabut, as ticket collector and or exhibitor, willfully, unlawfully and
feloniously hired their co-accused Marina Palan y Alova and Cosme
Espinosa y Abordo to act as performers or exhibitionists to perform
and in fact performed sexual intercourse in the presence of many
spectators, thereby exhibiting or performing highly immoral and
indecent acts or shows thereat."
Upon arraignment, all pleaded not guilty. Later, however, Marina
Padan, with the assistance of her counsel de parte and counsel de
oficio, asked for permission to withdraw her former plea of not
guilty, which was granted, and upon rearraignment, she pleaded
guilty to the charge. In a decision dated October 12, 1953, Marina
Padan was found guilty as charged and sentenced to six months and
one day of prision correccional and a fine of P200, with subsidiary
imprisonment in case of insolvency, not to exceed one-third of the
principal penalty, with the accessory penalties prescribed by the
law, and to pay the proportionate costs. After trial of the three
remaining accused, they were all found guilty; Cosme Espinosa and
Ernesto Reyes were sentenced each to not less than six months and
one day of prision correccional and not more than one year, one
month and eleven days of prision correccional, to pay a fine of
P500, with subsidiary imprisonment in case of insolvency, not to
exceed one-third of the principal penalty, and to pay the
proportionate costs. Jose Fajardo was sentenced to not less than one
year, one month and ten days of prision correccional and not more
than one year eight months and twenty days, also of prision
correccional, to pay a fine of P1,000, with subsidiary imprisonment
in case of insolvency, not to exceed one-third of the principal penalty
and to pay the proportionate costs. The army steel bed, the army
woolen blanket, the pillow, the ladies' panties, and the men's
underwear, described in Exhibit C, were declared confiscated.
The four accused appealed in the decision, the appeal having been
sent to us. Appellants Espinosa and Reyes failed to file their briefs
within the period prescribed by law and their appeal was dismissed
by resolution of this Court of November 25, 1955, and the decision
as to them became final and executory on January 7, 1956, as
appears from the entry of judgment.
Because of her plea of guilty in the lower court, appellant Marina in
her appeal does not question her conviction; she merely urges the
reduction of the penalty by eliminating the prison sentence. We do
not feel warranted in interfering with the exercise of discretion in
this matter, made by the lower court presided by Judge Magno S.
Gatmaitan. According to his decision of October 12, 1953, in
imposing the sentence, he already considered Marina's plea of
leniency, and so despite the recommendation of the fiscal that she
be fined P600.00 in addition to the prison sentence of six months
and one day, his honor reduced the fine to only P200.
We believe that the penalty imposed fits the crime, considering its
seriousness. As far as we know, this is the first time that the courts in
this jurisdiction, at least this Tribunal, have been called upon to take
cognizance of an offense against morals and decency of this kind.
We have had occasion to consider offenses like the exhibition of still
or moving pictures of women in the nude, which we have condemned
for obscenity and as offensive to morals. In those cases, one might
yet claim that there was involved the element of art; that
connoisseurs of the same, and painters and sculptors might find
inspiration in the showing of pictures in the nude, or the human body
exhibited in sheer nakedness, as models in tableaux vivants. But an
actual exhibition of the sexual act, preceded by acts of
lasciviousness, can have no redeeming feature. In it, there is no room
for art. One can see nothing in it but clear and unmitigated
obscenity, indecency, and an offense to public morals, inspiring and
causing as it does, nothing but lust and lewdness, and exerting a
corrupting influence specially on the youth of the land. We repeat
that because of all this, the penalty imposed by the trial court on
Marina, despite her plea of guilty, is neither excessive nor
unreasonable.
Going to the appeal of Jose Fajardo y Garcia, while he does not
deny the fact of the commission of the offense charged, he insists
that he was not the manager or the person incharge of the show or
proceedings on the night of September 13, 1953; that his
participation, if he participated at all, was to play the role of an
innocent bystander, but that because of his popularity in the
neighborhood, being popularly known as a "siga-siga" character,
he was requested by the spectators to select the man and the woman
to engage or indulge in the actual act of coitus before the
spectators; that after making the selection, he did not even care to
witness the act but left the scene and returned to it only when he
heard a commotion produced by the raid conducted by the police.
The evidence on his active participation and that he was the
manager and one in charge of the show is however ample, even
conclusive. We have carefully examined such evidence, and we are
satisfied that they fully support the findings of the trial court. Such
facts may be briefly stated as follows: At the corner of Morga
Extension and Camba Extension, Tondo, Manila, was a one story
building which judging from the picture exhibited is nothing but a
shed, with a floor space of eight by fifteen meters which was mainly
used for playing ping-pong. A ping-pong table must have been
placed in the center and on two sides were built benches in tiers, so
that the spectators seated on them could look down and see the
game. On September 13, 1953, however, the building was used for
a different purpose. It was to be the scene of what was said to be
an exhibition of human "fighting fish", the actual act of coitus of
copulation. It must have been advertised by word of mouth; tickets
therefor were sold at P3 each, and the show was supposed to begin
at 8:00 o'clock in the evening. About that time of the night, there was
already a crowd around the building, but the people were not
admitted into it until about an hour later, and the show did not begin
until about 9:15. The Manila Police Department must have gotten
wind of the affair; it bought tickets and provided several of its
members who later attended the show, but in plain clothes, and after
the show conducted a raid and made arrests. At the trial, said
policemen testified as to what actually took place inside the building.
About two civilians who attended the affair gave testimony as to
what they saw.
The customers not provided with tickets actually paid P3 at the
entrance to defendant Ernesto Reyes. He also collected tickets. In all,
there were about ninety paying customers, while about sixteen were
allowed to enter free, presumably friends of the management. Jose
Fajardo y Garcia was clearly the manager of the show. He was at
the door to see to it that the customers either were provided with
tickets or paid P3.00 entrance fee. He even asked them from whom
they had bought the tickets. He ordered that an army steel bed be
placed at the center of the floor, covered with an army blanket and
provided with a pillow. Once the spectators, about 106 in number,
were crowded inside that small building, the show started. Fajardo
evidently to arouse more interest among the customers, asked them
to select among two girls present who was to be one of the principal
actors. By pointing to or holding his hand over the head of each of
the two women one after the other, and judging by the shouts of
approval emitted by the spectators, he decided that defendant
Marina Padan was the subject of popular approval, and he selected
her. After her selection, the other woman named Concha, left.
Without much ado, Fajardo selected Cosme Espinosa to be Marina's
partner. Thereafter, Cosme and Marina proceeded to disrobe while
standing around the bed. When completely naked, they turned
around to exhibit their bodies to the spectators. Then they indulged
in lascivious acts, consisting of petting, kissing, and touching the
private parts of each other. When sufficiently aroused, they lay on
the bed and proceeded to consummate the act of coitus in three
different positions which we deem unnecessary to describe. The four
or five witnesses who testified for the Government when asked about
their reaction to what they saw, frankly admitted that they were
excited beyond description. Then the police who were among the
spectators and who were previously provided with a search warrant
made the raid, arrested the four defendants herein, and took
pictures of Marina and Cosme still naked and of the army bed, which
pictures were presented as exhibits during the trial.
From all this, there can be no doubt that Jose Fajardo y Garcia
contrary to what he claims, was the person in charge of the show.
Besides, as found by the trial court and as shown by some of the
tickets collected from the spectators, submitted as exhibits, said
tickets while bearing on one side printed matter regarding an
excursion to Balara to be held on August 30, 1953, from 7:00 a.m.
to 5:00 p.m., sponsored by a certain club, on the other side appears
the following typewritten form, reading:
"P3.00 Admit one
PLEASURE SHOW
Place: P. Morga Ext. and Camba Ext.
Time: 8:00 o'clock sharp",
and superimposed on the same is the rubber stamped name "Pepe
Fajardo," which defendant Fajardo admits to be his name.
Considering all the above circumstances, we agree with the trial
court that Jose Fajardo is the most guilty of the four, for he was the
one who conducted the show and presumably derived the most profit
or gain from the same.
As regards the penalty imposed by the trial court on appellant
Fajardo, we agree with the Solicitor General that the same is
correct, except the minimum thereof which is beyond the legal range,
and which should be reduced from one year, one month, and ten
days of prision correccional to only six months of arresto mayor.
With the modification above-mentioned, the decision appealed
from by Marina Padan and Jose Fajardo are hereby affirmed, with
costs against both.
Paras, C.J., Padilla, Reyes, A., Bautista Angelo, Labrador,
Concepcion, Reyes, J.B.L., Endencia and Felix, JJ., concur.
EN BANC
[G.R. No. 119673. July 26, 1996.]
IGLESIA NI CRISTO (INC), petitioner, vs.
THE HONORABLE COURT OF APPEALS, BOARD OF REVIEW FOR
MOVING PICTURES AND TELEVISION and HONORABLE
HENRIETTA S. MENDEZ, respondents.
Cuevas De la Cuesta & De las Alas for petitioner.
The Solicitor General for respondents.
SYLLABUS
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF
RELIGION; ACCORDED A PREFERRED STATUS. — Freedom of
religion has been accorded a preferred status by the framers of our
fundamental laws, past and present. We have affirmed this
preferred status well aware that it is "designed to protect the
broadest possible liberty of conscience, to allow each man to believe
as his conscience directs, to profess his beliefs, and to live as he
believes he ought to live, consistent with the liberty of others and
with the common good.
2. ID.; ID.; ID.; CAN BE REGULATED BY THE STATE. — We
reject petitioner's postulate that its religious program is per se
beyond review by the respondent Board. Its public broadcast on TV
of its religious program brings it out of the bosom of internal belief.
Television is a medium that reaches even the eyes and ears of
children. The Court iterates the rule that the exercise of religious
freedom can be regulated by the State when it will bring about the
clear and present danger of some substantive evil which the State is
duty bound to prevent, i.e., serious detriment to the more overriding
interest of public health, public morals, or public welfare. A laissez
faire policy on the exercise of religion can be seductive to the liberal
mind but history counsels the Court against its blind adoption as
religion is and continues to be a volatile area of concern in our
country today.
3. ID.; ID.; FREEDOM OF SPEECH; PRIOR RESTRAINTS,
ENJOINED. — Deeply ensconced in our fundamental law is its
hostility against all prior restraints on speech, including religious
speech. Hence, any act that restrains speech is hobbled by the
presumption of invalidity and should be greeted with furrowed
brows. It is the burden of the respondent Board to overthrow this
presumption. If it fails to discharge this burden, its act of censorship
will be struck down.
4. ADMINISTRATIVE LAW; BOARD OF REVIEW FOR
MOVING PICTURES AND TELEVISION; T.V. SERIES CONTAINING
CRITICISM OF SOME OF DEEPLY HELD DOGMAS AND TENETS OF
OTHER RELIGION, NOT INDECENT, CONTRARY TO LAW AND
GOOD CUSTOMS. — The evidence shows that the respondent
Board x-rated petitioners TV series for "attacking" other religions,
especially the Catholic church. An examination of the evidence,
especially Exhibits "A," "A-1," "B," "C," "D" will show that the so-
called "attacks" are mere criticisms of some of the deeply held
dogmas and tenets of other religions. The videotapes were not
viewed by the respondent court as they were not presented as
evidence. Yet they were considered by the respondent court as
indecent, contrary to law and good customs, hence, can be
prohibited from public viewing under sections 3(c) of PD 1986. This
ruling clearly suppresses petitioner's freedom of speech and
interferes with its right to free exercise of religion. The respondent
Board may disagree with the criticisms of other religions by
petitioner but that gives it no excuse to interdict such criticisms,
however, unclean they may be. Under our constitutional scheme, it is
not the task of the State to favor any religion by protecting it against
an attack by another religion. Religious dogmas and beliefs are
often at war and to preserve peace among their followers,
especially the fanatics, the establishment clause of freedom of
religion prohibits the State from leaning towards any religion. Vis-
a-vis religious differences, the State enjoys no banquet of options.
Neutrality alone is its fixed and immovable stance. In fine,
respondent board cannot squelch the speech of petitioner Iglesia ni
Cristo simply because it attacks other religions, even if said religion
happens to be the most numerous church in our country. In a State
where there ought to be no difference between the appearance and
the reality of freedom of religion, the remedy against bad theology
is better theology. The bedrock of freedom of religion is freedom of
thought and it is best served by encouraging the marketplace of
dueling ideas. When the luxury of time permits, the marketplace of
ideas demands that speech should be met by more speech for it is
the spark of opposite speech, the heat of colliding ideas that can
fan the embers of truth.
5. ID.; ID.; T.V. SERIES CONTAINING "ATTACKS AGAINST
ANOTHER RELIGION," NOT A GROUND PROHIBITING
BROADCAST." — The respondents cannot also rely on the ground
"attacks against another religion" in x-rating the religious program
of petitioner. Even a sideglance at section 3 of PD No. 1986 will
reveal that it is not among the grounds to justify an order prohibiting
the broadcast of petitioner's television program. The ground "attack
against another religion" was merely added by the respondent
Board in its Rules. This rule is void for it runs smack against the hoary
doctrine that administrative rules and regulations cannot expand the
letter and spirit of the law they seek to enforce.
6. CRIMINAL LAW; IMMORAL DOCTRINES, OBSCENE
PUBLICATIONS AND EXHIBITIONS; SHOWS WHICH OFFEND ANY
RACE OR RELIGION; WORD "OFFEND" NOT SYNONYMOUS WITH
"ATTACK." — It is opined that the respondent board can still utilize
"attack against any religion" as a ground allegedly ". . . because
section 3(c) of PD No. 1986 prohibits the showing of motion pictures,
television programs and publicity material which are contrary to law
and Article 201 (2) (b) (3) of the Revised Penal Code punishes
anyone who exhibits "shows which offend any race or religion." We
respectfully disagree for it is plain that the word "attack" is not
synonymous with the word "offend."
7. ID.; ID.; ID.; CANNOT BE UTILIZED TO JUSTIFY PRIOR
CENSORSHIP OF SPEECH. — Article 201 (2) (b) (3) of the Revised
Penal Code should be invoked to justify the subsequent punishment
of a show which offends any religion. It cannot be utilized to justify
prior censorship of speech. It must be emphasized that E.O. 876, the
law prior to PD 1986, included "attack against any religion" as a
ground for censorship. The ground was not, however, carried over
by PD 1986. Its deletion is a decree to disuse it. There can be no
other intent.
8. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF
RELIGION; GROUND FOR RESTRAINTS. — In American Bible Society
v. City of Manila, this Court held: "The constitutional guaranty of free
exercise and enjoyment of religious profession and worship carries
with it the right to disseminate religious information. Any restraint of
such right can be justified like other restraints on freedom of
expression on the ground that there is a clear and present danger
of any substantive evil which the State has the right to prevent." In
Victoriano vs. Elizalde Rope Workers Union, we further ruled that ".
. . it is only where it is unavoidably necessary to prevent an
immediate and grave danger to the security and welfare of the
community that infringement of religious freedom may be justified,
and only to the smallest extent necessary to avoid the danger.
9. ID.; ID.; ID.; HYPOTHETICAL FEARS OF SUBSTANTIVE AND
IMMINENT EVIL, NOT VALID GROUND. — The records show that the
decision of the respondent Board, affirmed by the respondent
appellate court, is completely bereft of findings of facts to justify
the conclusion that the subject video tapes constitute impermissible
attacks against another religion. There is no showing whatsoever of
the type of harm the tapes will bring about especially the gravity
and imminence of the threatened harm. Prior restraint on speech,
including religious speech, cannot be justified by hypothetical fears
but only by the showing of a substantive and imminent evil which has
taken the life of a reality already on ground.
10. ID.; ID.; ID.; CLEAR AND PRESENT DANGER; RULE APPLY
TO SPEECHES AND ATTACKS AGAINST OTHER RELIGIONS. — It is
suggested we re-examine the application of clear and present
danger rule to the case at bar. In the United States, it is true that the
clear and present danger test undergone permutations. Presently in
the United States, the clear and present danger test is not applied
to protect low value speeches such as obscene speech, commercial
speech and defamation. Be that as it may, the test is still applied to
four types of speech: speech that advocates dangerous ideas,
speech that provokes a hostile audience reaction, out of court
contempt and release of information that endangers a fair trial.
Hence, even following the drift of American jurisprudence, there is
reason to apply the clear and present danger test to the case at bar
which concerns speech that attacks other religions and could readily
provoke hostile audience reaction. It cannot be doubted that
religious truths disturb and disturb terribly.
11. ID.; ID.; ID.; ID.; RULE APPLIES TO VIDEO TAPES THAT ARE
PRE-TAPED. — It is also opined that it is inappropriate to apply the
clear and present danger test to the case at bar because the issue
involves the content of speech and not the time, place or manner of
speech. Allegedly, unless the speech is first allowed, its impact
cannot be measured, and the causal connection between the speech
and the evil apprehended cannot be established. The contention
overlooks the fact that the case at bar involves videotape that are
pre-taped and hence, their speech content is known and not an X
quantity. Given the specific content of the speech, it is not
unreasonable to assume that the respondent Board, with its
expertise, can determine whether its sulphur will bring about the
substantive evil feared by the law.
12. ID.; CONGRESS; MAY GRANT ADMINISTRATIVE BODIES
QUASI-JUDICIAL POWER TO PREVIEW AND CLASSIFY T.V.
PROGRAMS. — We are not ready to hold that it is unconstitutional
for Congress to grant an administrative body quasi-judicial power
to preview and classify TV programs and enforce its decision subject
to review by our court.
PADILLA, J., concurring and dissenting opinion:
CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF SPEECH
AND OF RELIGION; THERE CAN BE NO PRIOR RESTRAINTS IN THE
EXERCISE THEREOF. — In this country there can be no prior restraints
on the exercise of free speech, expression or religion, unless such
exercises poses a clear and present danger of a substantive evil
which the State has the right and even the duty to prevent. The ban
against such prior restraints will result, as it has resulted in the past,
in occasional abuses of free speech and expression but it is
immeasurably preferable to experience such occasional abuses of
speech and expression than to arm a governmental administrative
agency with the authority to censor speech and expression in
accordance with legislative standards which albeit apparently
laudable in their nature, can very well be bent or stretched by such
agency to convenient latitudes as to frustrate and eviscerate the
precious freedoms of speech and expression.
MELO, J., concurring and dissenting opinion:
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF
RELIGION; DENOTES RIGHT TO DISSEMINATE RELIGIOUS
INFORMATION; PRIOR RESTRICTION ON RIGHT TO DISSEMINATE
INFORMATION, A RESTRICTION ON RIGHT OF RELIGION. — The
enjoyment of the freedom of religion is always coupled with the
freedom of expression. For the profession of faith inevitably carries
with it, as a necessary appendage, the prerogative of propagation.
The constitutional guaranty of free exercise and enjoyment of
religious profession and worship thus denotes the right to disseminate
religious information (American Bible Society vs. City of Manila, 101
Phil. 386 [1957]). Any prior restriction upon a religious expression
would be a restriction on the right of religion. We recognize the role
and the deep influence that religion plays in our community. No less
than the fundamental law of the land acknowledges the elevating
influence of religion by imploring the aid of almighty God to build
a just and humane society. Any restriction that is to be placed upon
this right must be applied with greatest caution.
2. ID.; ID.; ID.; GROUND FOR PRIOR RESTRAINT. — Freedom
of religion and expression is the rule and its restriction, the exception.
Any prior restriction on the exercise of the freedom to profess
religious faith and the propagation thereof will unduly diminish that
religion's authority to spread what it believes to be the sacred truth.
The State can exercise no power to restrict such right until the
exercise thereof traverses the point that will endanger the order of
civil society. Thus we have ruled in the case of Ebralinag vs. The
Division Superintendent of Schools of Cebu (219 SCRA 270 [1993]):
The sole justification for a given restraint or limitation on the exercise
of religious freedom is the existence of a grave and present danger
of a character both grave and imminent, of a serious evil to public
safety, public morals, public health or any other legitimate public
interest that the state has the right and duty to prevent.
Correspondingly, the MTRCB has no authority to use as standard, the
dangerous tendency rule, which we have long abandoned, and for
which reason, the dangerous tendency standard under
Subparagraph C, Section 3 of Presidential Decree No. 1986 has no
place in our statute books.
KAPUNAN, J., concurring and dissenting opinion:
1. CONSTITUTIONAL LAW; FREEDOM OF RELIGION;
CANNOT BE SUBJECT TO PRIOR RESTRAINT BY THE BOARD OF
REVIEW FOR MOTION PICTURES AND TELEVISION (now MTRCB).
— While I concur in the result of the majority's decision reversing
that of the Court of Appeals insofar as it set aside the action of
respondent MTRCB x-rating petitioner's TV Program Series Nos.
115, 119 and 121 with due respect, I cannot agree with its opinion
that respondent Board of Review for Motion Pictures and Television
(now MTRCB) has the power to review petitioner's TV program "Ang
Iglesia ni Cristo." The religious TV program enjoys the Constitution's
guarantee of freedom of religion, and of speech and expression,
and cannot be subject to prior restraint by the Board by virtue of its
power and functions under Section 3, P.D. 1986. It is my submission
that the government, under the guise of its regulatory powers in the
censorship law (P.D. 1986 and its corresponding implementing rules
and regulations), does not have the power to interfere with the
exercise of religious expression in film or television by requiring the
submission of the video tapes of petitioner's religious program
before their public viewing, absent a showing of a compelling state
interest that overrides the constitutional protection of the freedom of
expression and worship. Even if government can demonstrate a
compelling state interest, it would only burden such fundamental
right like the free exercise of religion by the least intrusive means
possible. There is no demonstration here of any sufficient state
interest to justify the infringement.
2. ID.; ID.; RELIGIOUS SECT OR DENOMINATION ALLOWED
FREE CHOICE OF UTILIZING MEDIA IN DISSEMINATING RELIGIOUS
INFORMATION. — The freedom to disseminate religious information
is a right protected by the free exercise clause of the Constitution. It
encompasses a wide range of ideas and takes many forms. In the
process of enlightening the adherents or convincing non-believers of
the truth of its beliefs, a religious sect or denomination is allowed the
free choice of utilizing various media, including pulpit or podium,
print, television film, and the electronic mail.
3. ID.; ID.; ENTITLED TO THE HIGHEST PRIORITY AND
GENERALLY INSULATED FROM COURT ACTION. — It is settled that
religious freedom is a fundamental right entitled to the highest
priority and amplest protection among human rights. Because of its
exalted position in our hierarchy of civil rights, the realm of religious
belief is generally insulated from state action, and state interference
with such belief is allowed only in extreme cases.
4. ID.; ID.; CLEAR AND PRESENT DANGER OF SUBSTANTIVE
EVIL, SOLE JUSTIFICATION FOR PRIOR RESTRAINT OR LIMITATION.
— In American Bible Society v. City of Manila, this Court held that
any restraint on the right to disseminate religious information "can
only be justified like other restraints of freedom of expression on the
grounds that there is a clear and present danger of any substantive
evil which the State has the right to prevent." Affirming the use of
this "clear and present danger" standard in cases involving religious
freedom and worship, the late Chief Justice Claudio Teehankee
warned that "[t]he sole justification for a prior restraint or limitation
on the exercise of religious freedom is the existence of a grave and
present danger of a character both grave and imminent of a serious
evil to public safety, public morals, public health or any other
legitimate public interest, that the State has a right (and duty) to
prevent."
5. ADMINISTRATIVE LAW; BOARD OF REVIEW FOR MOTION
PICTURES AND TELEVISION; POWER TO PROHIBIT EXHIBITION OF
TELEVISION BROADCASTS AND TV PROGRAMS; PETITIONER'S
RELIGIOUS PROGRAM ON TV, NOT OBJECTIONABLE AND
THEREFORE NOT SUBJECT TO CENSORSHIP. — Under Section 3 of
P.D. 1986 the MTRCB, while nominally a classification board, is
granted the power not only to classify, but also to approve or
disapprove/prohibit exhibition of film or television broadcasts of
motion pictures and TV programs. Petitioner's religious programs,
which in their very essence and characterization are the exercise of
religious freedom, cannot possibly come under the category of the
objectionable matters enumerated in Section 3(c) of P.D. 1986 or
analogous thereto. It is not likely that propagation of religion which
has been spoken of as "a profession of faith that binds and elevates
man to his Creator" will involve pornography, excessive violence or
danger to national security. Significantly, the enumeration in Section
3(c) does not include the standard "attack against any religion" as
among those considered objectionable and subject to censorship.
6. STATUTORY CONSTRUCTION AND INTERPRETATION;
SPECIFIC STANDARD FOLLOWING A GENERAL ENUMERATION
CANNOT GO BEYOND THE SCOPE OF THE LATTER. — While the
law's enumeration is concededly not exclusive, inclusion of other
standards should be made in the strict context of the words "immoral,
indecent, contrary to law and/or good customs." Specific standards
following a general enumeration cannot go beyond the scope of the
latter.
7. ID.; CENSORSHIP LAW; WORD "INDECENT" CONFINED
TO OBSCENITY REGULATION. — The word "indecent" in censorship
law has a narrow meaning, confined to obscenity regulation. It
cannot be conveniently employed as a catch-all term embracing all
forms of expression considered noxious by the Board.
8. ADMINISTRATIVE LAW; P.D. 1986; OMISSION OF
"ATTACK AGAINST ANY RELIGION," MANIFEST INTENTION TO DO
AWAY WITH THAT STANDARD. — In the light of what the Solicitor
General describes as the "transitional" nature of P.D. 1986, the
better view would be that the omission of "attack against any
religion" among the enumerated standards was intentional and part
of the evolving process of fashioning a system of strict classification
of films and television programs as opposed to censorship. As this
phrase was ubiquitous in the old censorhip law (particularly E.O. 868
and E.O. 876), its elimination in P.D. 1986 expresses the manifest
intention of the law-making authority to do away with the standard.
9. ID.; ID.; PHRASE "CONTRARY TO LAW" CANNOT AND
SHOULD NOT BE UNDERSTOOD TO REFER TO ARTICLE 201 OF THE
REVISED PENAL CODE. — The phrase "contrary to law" cannot and
should not be understood to refer to Article 201 of the Revised Penal
Code, as respondents mistakenly suggest. Article 201 deals with the
subject of subsequent punishment; P.D. 1986 clearly treats with an
altogether different matter — prior restraint and censorship. The
two laws stand at opposite poles in the continuum of regulation and
punishment.
10. REMEDIAL LAW; JURISDICTION; DETERMINATION OF
QUESTION AS TO WHETHER OR NOT VILIFICATIONS,
EXAGGERATION FALLS WITHIN OR LIES OUTSIDE THE
BOUNDARIES OF FREE SPEECH AND EXPRESSION, A JUDICIAL
FUNCTION. — We are faced with a case of censorship and restraint
which, I stated earlier, touches upon one of the most private and
sensitive of domains: the realm of religious freedom, thought and
expression. In this domain, sharp differences may arise such that the
tenets of one individual may seem the "rankest error" to his neighbor.
In the process of persuading others about the validity of his point of
view, the preacher sometimes resorts to exaggeration and
vilification. However, the determination of the question as to whether
or not such vilification, exaggeration or fabrication falls within or lies
outside the boundaries of protected speech or expression is a
judicial function which cannot be arrogated by an administrative
body such as a Board of Censors. Even if the exercise of the liberties
protected by the speech, expression and religion clauses of our
Constitution are regarded as neither absolute nor unlimited, there
are appropriate laws which deal with such excesses. The least
restrictive alternative would be to impose subsequent sanctions for
proven violations of laws, rather than inflict prior restraints on
religious expression. Our penal law punishes libel, or acts or
speeches offensive to other religions, and awards damages
whenever warranted. In our legal scheme, courts essentially remains
the arbiters of controversies affecting the civil and political rights of
persons. It is our courts which determine whether or not certain forms
of speech and expression have exceeded the bounds of correctness,
propriety or decency as to fall outside the area of protected speech.
In the meantime, the liberties protected by the speech and
expression and free exercise clauses are so essential to our society
that they should be allowed to flourish unobstructed and unmolested.
11. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF
RELIGION; ACTS OF PRIOR RESTRAINT, HOBBLED BY
PRESUMPTION OF INVALIDITY; FAILURE BY THE BOARD OF REVIEW
FOR MOTION PICTURE AND TELEVISION TO OVERTHROW
PRESUMPTION. — The majority opinion professes fealty to freedom
of religion which, it openly admits, has been accorded a preferred
status by the framers of our fundamental laws, and affirms that
"(D)eeply ensconced in our fundamental law is its hostility against all
prior restraints on speech, including speech." The majority then adds
pointedly that "acts of prior restraint are hobbled by the
presumption of invalidity and should be greeted with furrowed
brows. It is the burden of the respondent Board to overthrow this
presumption. If it fails to discharge this heavy burden, its acts of
censorship will be struck down. It failed in the case at bar.
12. ID.; ID.; CANNOT BE DEROGATED PEREMPTORILY BY AN
ADMINISTRATIVE BODY OR OFFICE WHO DETERMINES WHETHER
OR NOT TO ALLOW THE EXERCISE OF SUCH FREEDOM. — The
ruling in Sotto vs. Ruiz cannot be invoked as authority to allow
MTRCB to review petitioner's TV programs. In that case, the Court
held that the Acting Director of the Bureau of Posts is vested with
authority to determine what mail matter is obscene, lewd, filthy or
libelous, pursuant to Section 1954 of the old Administrative Code
which provides, among others, that no lewd, lascivious, filthy,
indecent or libelous character shall be deposited in, or carried by,
the mails of the Philippine Island, or be delivered to its addressee
by any officer or employee of the Bureau of Posts. Petitioner's
programs which are televised in the exercise of freedom of worship
cannot be placed in the category of the printed matter proscribed
in the old Administrative Code. Freedom of worship is such a precious
commodity in our hierarchy of civil liberties that it cannot be
derogated peremptorily by an administrative body or officer who
determines, without judicial safeguards, whether or not to allow the
exercise of such freedom. The rights of free expression and free
exercise of religion occupy a unique and special place in our
constellation of civil rights. The primacy our society accords these
freedoms determines the mode it chooses to regulate their
expression. But the idea that an ordinary statute or decree could,
by its effect, nullify both the freedom of religion and the freedom
of expression puts an ominous gloss on these liberties. Censorship
law as a means of regulation and as a form of prior restraint is
anathema to a society which places high significance to these values.
MENDOZA, J., separate opinion:
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF
SPEECH AND EXPRESSION; GROUNDS FOR CENSORSHIP. —
Censorship may be allowed only in a narrow class of cases involving
pornography, excessive violence, and danger to national security.
2. ADMINISTRATIVE LAW; P.D. 1986; POWER OF THE
BOARD TO CENSOR MOTION PICTURES AND TV PROGRAMS, NOT
FINAL; AGGRIEVED PARTY MAY RESORT TO COURTS. — Even in
these cases, only courts can prohibit the showing of a film or the
broadcast of a program. In all other cases, the only remedy against
speech which creates a clear and present danger to public interests
is through subsequent punishment. Considering the potentiality for
harm which motion pictures and TV programs may have especially
on the young, all materials may validly be required to be submitted
for review before they may be shown or broadcast. However, the
final determination of character of the materials cannot be left to
an administrative agency. That judicial review of administrative
action is available does not obviate the constitutional objection to
censorship. For these reasons, I would hold Sec. 3(b) of P.D. No.
1986, which gives to the Board limited time for review, to be valid,
while finding Sec. 3(c), under which the Board acted in this case in
censoring petitioner's materials to be, on its face and as applied,
unconstitutional.
3. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF
SPEECH AND EXPRESSION, PREFERRED RIGHTS; PRIOR RESTRAINT
ON THEIR EXERCISE CARRIES WITH IT A PRESUMPTION OF
INVALIDITY. — At the very least, free speech and free press may
be identified with the liberty to discuss publicly and truthfully any
matter of public interest without censorship or punishment. There is to
be . . . no previous restraint on the communication of views or
subsequent liability whether in libel suits, prosecution for sedition, or
action for damages, or contempt proceedings, unless there be a
clear and present danger of substantive evil that Congress has a
right to prevent. Because of the preferred character of the
constitutional rights of freedom of speech and expression, a weighty
presumption of invalidity vitiates measures of prior restraint upon
the exercise of such freedoms.
4. ID.; ID.; ID.; TYPES OF PRIOR RESTRAINTS. — Authoritative
interpretations of the free speech clause consider as invalid two
types of prior restraints, namely, those which are imposed prior to
the dissemination of any matter and those imposed prior to an
adequate determination that the expression is not constitutionally
protected.
5. ADMINISTRATIVE LAW; P.D. NO. 1986; SEC 3(b) THEREOF
REQUIRING THE SUBMISSION OF MOTION PICTURES, TV
PROGRAMS AND PUBLICITY MATERIALS TO THE BOARD FOR
REVIEW DOES NOT CONSTITUTE PRIOR RESTRAINT ON FREEDOM
OF SPEECH AND EXPRESSION. — P.D. No. 1986, Sec. 3(b) requires
motion pictures, television programs and publicity materials to be
submitted to the Board for review. Does Sec. 3(b) impermissibly
impose a prior restraint because of its requirement that films and TV
programs must be submitted to the Board for review before they
can be shown or broadcast? In my view it does not. The Burstyn case,
in declaring motion pictures to be protected under the free
expression clause, was careful to add: "It does not follow that the
Constitution requires absolute freedom to exhibit every motion
picture of every kind at all times and all places. . . . Nor does it
follow that motion pictures are necessarily subject to the precise rules
governing any other particular method of expression. Each method
tends to present its own peculiar problems." With reference to
television, this Court is on record that "a less liberal approach calls
for observance. This is so because unlike motion pictures where
patrons have to pay their way, television reaches every home where
there is a [TV] set. Children then will likely be among the avid
viewers of programs therein shown . . . .[T]he State as parens patriae
is called upon to manifest an attitude of caring for the welfare of
the young." I hold Sec. 3(b) to be a valid exercise of the State's
power to protect legitimate public interests. The purpose of this
restraint — temporary in character — is to allow the Board time to
screen materials and to seek an injunction from the courts against
those which it believes to be harmful.
6. ID.; ID.; SEC 3(c) AUTHORIZING THE BOARD TO PROHIBIT
THE EXHIBITION OF MOTION PICTURES, TV PROGRAMS AND
PUBLICITY MATERIALS WHICH IN THE BOARD'S OPINION ARE
IMMORAL, INDECENT, CONTRARY TO LAW AND/OR GOOD
CUSTOMS, INJURIOUS TO THE REPUBLIC OR ITS PEOPLE OR
WHICH HAVE A DANGEROUS TENDENCY TO ENCOURAGE
COMMISSION OF VIOLENCE, WRONG OR A CRIME CONSTITUTES
CENSORSHIP IN ITS BOLDEST FORM. — I reach a different
conclusion, however, with respect to Sec. 3(c). This provision
authorizes the Board to prohibit, among other things, the exhibition
or broadcast of motion pictures, television programs and publicity
materials which, in its opinion, are "immoral, indecent, contrary to
law and/or good customs, injurious to the prestige of the Republic
of the Philippines or its people, or [which have] a dangerous
tendency to encourage the commission of violence or of a wrong or
crime." Under this authority, the Board can determine what can be
shown or broadcast and what cannot. It is not true, as the Board
claims, that under P.D. No. 1986 its power is limited to the
classification of motion pictures and TV programs. The power to
classify includes the power to censor. The Board can x-rate films and
TV programs and thus ban their public exhibition or broadcast. And
once it declares that a motion picture or television program is, for
example, indecent or contrary to law, as in the case of the INC
program in question, its declaration becomes the law. Unless the
producer or exhibitor is willing to go to court, shouldering not only
the burden of showing that his movie or television program is
constitutionally protected but also the cost of litigation, the ban stays.
This is censorship in its boldest form. This is contrary to the
fundamental tenet of our law that until and unless speech is found
by the courts to be unprotected its expression must be allowed. By
authorizing the censorship of materials which in the opinion of the
Board are "contrary to law, Sec. 3(c) makes what is only a ground
for subsequent punishment also a ground for prior restraint on
expression. It is Sec. 3(c) of P.D. No. 1986, and not only the rules
implementing it, which is unconstitutional. To the extent therefore that
P.D. No. 1986, Sec. 3(c) vests in the Board the final authority to
determine whether expression by motion picture or television is
constitutionally protected, I find it unconstitutional.
7. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF
SPEECH AND EXPRESSION; CLEAR AND PRESENT DANGER RULE;
DETERMINATION OF APPLICABILITY OF RULE REQUIRES FACTUAL
RECORD. — The clear and present danger test has been devised
for use in criminal prosecutions for violations of laws punishing
certain types of utterances. While the test has been applied to the
regulation of the use of streets and parks — surely a form of prior
restraint — its use in such context can be justified on the ground that
the content of the speech is not the issue. But when the regulation
concerns not the time, place or manner of speech but its content (i.e.,
it is content based) the clear and present danger test simply cannot
be applied. This is because a determination whether an utterance
has created a clear and present danger to public interests requires
a factual record.
PANGANIBAN, J., separate (concurring) opinion:
1. ADMINISTRATIVE LAW; P.D. No. 1986 (MTRCB);
STATUTORY POWERS ARE LIMITED BY THE BILL OF RIGHTS. — The
statutory powers of the MTRCB are set forth in Sec. 3 of P.D. 1986.
In implementing P.D. 1986, the MTRCB issued its own Rules and
Regulations. At issue in this case is Section 4 of such Rules. On the
other hand, these statutory powers and internally generated
regulations are limited by the Bill of Rights, Art. III of the 1987
Constitution, particularly the rights to free speech and religion.
2. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF
RELIGION; ABSOLUTE WHEN CONFINED WITHIN THE REALM OF
THOUGHT BUT SUBJECT TO REGULATION WHEN TRANSFORMED
INTO EXTERNAL ACTS. — "(F)reedom of religion has been accorded
a preferred status by the framers of our fundamental laws, past and
present." Religious freedom is absolute when it is confined within the
realm of thought to a private, personal relationship between a man's
conscience and his God, but it is subject to regulation when religious
belief is transformed into external acts that affect or afflict others.
The mere invocation of religious freedom will not stalemate the State
and ipso facto render it incompetent in preserving the rights of others
and in protecting the general welfare.
3. ADMINISTRATIVE LAW; P.D. No. 1986 (MTRCB); BASIC
POWERS. — As an agency of the State created to promote the
general welfare, the MTRCB under P.D. 1986 has the basic initiatory
authority and power, to "approve or disapprove, delete
objectionable portion from and/or prohibit the importation,
exportation, production, copying distribution, sale, lease, exhibition
and/or prohibit the importation, exportation, production, copying
distribution, sale, lease, exhibition and/or television broadcast" of
pre-taped or canned (as contra-distinguished from "live") video-
audio/film/television programs and publicity materials.
4. ID.; ID.; ID.; AUTHORITY EXTENDS TO BOTH NON-
RELIGIOUS AND RELIGIOUS VIDEO MATERIALS. — Petitioner INC
contends that the MTRCB's authority extends only to non-religious
video materials but not to religious programs, particularly those of
INC, which it claims are neither "immoral" nor "indecent." This position
presents more problems than solutions. For who will determine
whether a given canned material is religions or not, and therefore
whether it can be publicly exhibited or not without its passing
through the Board? I would prefer that the State, which is
constitutionally mandated to be neutral, continue to exercise the
power to make such determination, rather than leave it up to the
producer, maker, or exhibitor of such matter, who/which, because of
vested interests would, in the normal course, be understandably
biased in his/its own favor. I feel less discomfort with the idea of
maintaining the censors' quasi-judicial authority to review such film
materials, subject to appeal to the proper courts aggrieved parties,
than with the prospect and consequences of doing away with such
power altogether. I agree with Mr. Justice Vitug in finding "it more
prudent to have a deferment of an exhibition that may be perceived
(by the Board) to be contrary to decency, morality, good custom or
the law until at least, the courts are given an opportunity to pass
upon the matter . . ." A contrary ruling would most regrettably
remove meaningful and necessary safeguards against a veritable
floodtide of prurient, violence-prone and values-eroding television
shows and programs.
5. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF
RELIGION; POWER OF REVIEW AND PROHIBITION THRU THE
MTRCB, STATE'S EXERCISE OF ITS ROLE AS PARENS PATRIAE. —
Gonzales vs. Kalaw Katigbak and Eastern Broadcasting Corp.
(DYRE) vs. Dans, Jr., this Court early on acknowledged the uniquely
pervasive presence of broadcast and electronic media in the lives
of everyone, and the easy accessibility of television and radio to just
about anyone, especially children. Everyone is susceptible to their
influence, even "the indifferent or unwilling who happen to be within
reach of a blaring radio or television set." And these audiences have
less opportunity to cogitate, analyze and reject the utterances,
compared to readers of printed material. It is precisely because the
State as parens patriae is "called upon to manifest an attitude of
caring for the welfare of the young" that I vote for the retention of
the State's power of review and prohibition via the MTRCB.
6. ADMINISTRATIVE LAW; P.D. NO. 1986 (MTRCB); EXERCISE
OF POWERS OF REVIEW AND PROHIBITION SUBJECT TO
CONSTITUTIONAL STANDARD. — In exercising its prerogatives, the
MTRCB cannot act absolutely or whimsically. It must act prudently.
And it can do so ONLY if it exercises its powers of review and
prohibition according to a standard and/or a limit.
7. ID.; ID.; ID.; PHRASE "WITH A DANGEROUS TENDENCY"
IN SEC. 3-C, UNCONSTITUTIONAL. — I believe that the phrase
"with a dangerous tendency" in Sec. 3-c of P.D. 1986 should be
struck down as an unconstitutional standard. This is martial law
vintage and should be replaced with the more libertarian "clear and
present danger rule" which is eloquently explained by JJ. Kapunan,
Puno and Mendoza (and which explanation I shall not repeat here).
On the other hand, when the question is whether the material being
reviewed "encourages the commission of violence or of a wrong or
crime" per the enumeration contained in Sec. 3-c, the "clear and
present danger" principle should be applied as the standard in
place of the "dangerous tendency" rule.
8. ID.; ID.; ID.; CONTEMPORARY PHILIPPINE CULTURAL
VALUES MORE APPROPRIATE STANDARD. — There is an even more
appropriate standard in the Philippine context proffered by the law
itself, and that is "contemporary Philippine cultural values." This
standard under the law, should be used in determining whether a
film or video program is "(a) immoral, (b) indecent, (c) contrary to
law and/or good customs, and (d) injurious to the prestige of the
Republic of the Philippines or its people."
9. ID.; ID.; INTERNAL RULES AND REGULATIONS SHOULD BE
READ TOGETHER WITH OTHER EXISTING LAWS. — Anent the
validity of Sec. 4 of the Board's Rules and Regulations authorizing
MTRCB to prohibit the showing of materials "which clearly constitute
an attack against any race, creed or religion . . .," I agree with Mr.
Justice Vitug that the phrase "contrary to law" in Sec. 3-c "should be
read together with other existing laws such as, for instance, the
provisions of the Revised Penal Code, particularly Article 201, which
prohibit the exhibition of shows that 'offend another race or
religion'." I note, in this connection, the caveat raised by the ponencia
that the MTRCB Rule bans shows which "attack" a religion, whereas
Art. 201 merely penalizes those who exhibit programs which
"offend" such religion. Subject to changing the word "attack" with
the more accurate "offend," I believe Section 4 of the Rules can
stand. In sum, I respectfully submit (1) that P.D. 1986 is constitutional,
subject to the substitution (or interpretation) of the words "dangerous
tendency" with the phrase (or as meaning) "clear and present
danger" in Sec. 3-c; and (2) that Sec. 4 of the Board's Rules would
be likewise valid, provided the words "constitute an attack" are
changed with "offend."
10. REMEDIAL LAW; EVIDENCE; PRESUMPTION THAT
OFFICIAL DUTIES HAVE BEEN REGULARLY PERFORMED; MUST YIELD
TO FREEDOMS OF EXPRESSION AND RELIGION. — The tape in
question was never submitted to the Court for viewing. Neither was
there a detailed description of its objectionable contents in the
assailed Decision of the Court of Appeals or Regional Trial Court.
Nor is there extant a detailed justification prepared by respondent
Board on why it banned the program — other than its bare
conclusion that the material constituted an attack against the Catholic
and Protestant religions. In no wise can the "remarks" in the voting
slips presented before the trial court be considered sufficient
justification for banning the showing of any material. In the face of
such inadequacy of evidence and basis, I see no way that this Court
could authorize a suppression of a species of the freedom of speech
on the say-so of anyone — not even the MTRCB. Paraphrasing
People vs. Fernando, the disputable presumption (which is of
statutory origin) that official duties have been regularly performed
must yield to the constitutionally enshrined freedoms of expression
and of religion. If courts are required to state the factual and legal
bases of their conclusions and judicial dispositions, with more reason
must quasi-judicial officers such as censors, especially when they
curtail a fundamental right which is "entitled to the highest priority
and amplest protection."
VITUG, J., separate opinion:
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF
RELIGION; OCCUPIES AN EXALTED POSITION. — Religious
freedom occupies an exalted position in our hierarchy of rights and
that the freedom to disseminate religious information is a
constitutionally-sanctioned prerogative that allows any legitimate
religious denomination a free choice of media in the propagation of
its credo. Like any other right, however, the exercise of religious
belief is not without inherent and statutory limitations.
2. ADMINISTRATIVE LAW; P.D. 1986 (BOARD OF REVIEW
FOR MOTION PICTURES AND TELEVISION); POWER TO DELETE
OBJECTIONABLE PORTIONS OF T.V. PROGRAMS FOR BEING
CONTRARY TO LAW; PHRASE "CONTRARY TO LAW" SHOULD BE
READ TOGETHER WITH OTHER EXISTING LAWS. — The Board
disapproved the exhibition of a series of television programs of
petitioner on the ground that they tend to "offend and constitute an
attack against other religions." An opinion has been expressed that
the non-inclusion in Section 3 of P.D. 1986 of an "attack against any
religion," as a standard for classification, and so the deletion of the
phrase "offensive to other religions" found in the old censorship law
(Executive Order No. 876), should be clear enough to manifest a
legislative intent "to do away with the standard." A reading of
Section 3 of P.D. 1986 shows that the Board is empowered to
"screen, review and examine all . . . television programs" and to
"approve or disprove, delete objectionable portion from and/or
prohibit the . . . television broadcast of . . . television programs . . .
which, in the judgment of the BOARD (so) applying contemporary
Filipino cultural values as standard, are objectionable for being
immoral indecent, contrary to law and/or good customs . . ." I believe
that the phrase "contrary to law" should be read together with other
existing laws such as, for instance, the provisions of the Revised Penal
Code, particularly Article 201, which prohibits the exhibition of
shows that "offend another race or religion." I see in this provision a
good and sound standard. Recent events indicate recurrent violent
incidents between and among communities with diverse religious
beliefs and dogma. The danger is past mere apprehension; it has
become a virtual reality and now prevalent in some parts of the
world.
3. ID.; ID.; ID.; RESTRICTION MUST BE FOR LEGITIMATE AND
VALID REASONS. — In order not to infringe constitutional principles,
any restriction by the Board must, of course, be for legitimate and
valid reasons.
4. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF
RELIGION; PRIOR CENSORSHIP SHOULD NOT BE REJECTED. — I
certainly do not think that prior censorship should altogether be
rejected just because sanctions can later be imposed. Regulating the
exercise of a right is not necessarily an anathema to it; in fact, it can
safeguard and secure that right.
DECISION
PUNO, J p:
This is a petition for review of the Decision dated March 24, 1995
of the respondent Court of Appeals affirming the action of the
respondent Board for Motion Pictures and Television which x-rated
the TV Program "Ang Iglesia ni Cristo."
Petitioner Iglesia ni Cristo, a duly organized religious organization,
has a television program entitled "Ang Iglesia ni Cristo" aired on
Channel 2 every Saturday and on Channel 13 every Sunday. The
program presents and propagates petitioner's religious beliefs,
doctrines and practices often times in comparative studies with other
religions.
Sometime in the months of September, October and November
1992, petitioner submitted to the respondent Board of Review for
Motion Pictures and Television the VTR tapes of its TV program
Series Nos. 116, 119, 121 and 128. The Board classified the series
as "X" or not for public viewing on the ground that they "offend and
constitute an attack against other religions which is expressly
prohibited by law."
Petitioner pursued two (2) courses of action against the respondent
Board. On November 28, 1992, it appealed to the Office of the
President the classification of its TV Series No. 128. It succeeded in
its appeal for on December 18, 1992, the Office of the President
reversed the decision of the respondent Board. Forthwith, the Board
allowed Series No. 128 to be publicly telecast.
On December 14, 1992, petitioner also filed against the respondent
Board Civil Case No. Q-92-14280, with the RTC, NCR, Quezon City.
1 Petitioner alleged that the respondent Board acted without
jurisdiction or with grave abuse of discretion in requiring petitioner
to submit the VTR tapes of its TV program and in x-rating them. It
cited its TV Program Series Nos. 115, 119, 121 and 128. In their
Answer, respondent Board invoked its power under PD No. 1986 in
relation to Article 201 of the Revised Penal Code.
On January 4, 1993, the trial court held a hearing on petitioner's
prayer for a writ of preliminary injunction. The parties orally argued
and then marked their documentary evidence. Petitioner submitted
the following as its exhibits, viz.:
(1) Exhibit "A," respondent Board's Voting Slip for Television
showing its September 9, 1992 action on petitioner's Series No. 115
as follows: 2
REMARKS:
There are some inconsistencies in the particular program as it is very
surprising for this program to show series of Catholic ceremonies and
also some religious sects and using it in their discussion about the
bible. There are remarks which are direct criticism which affect other
religions.
Need more opinions for this particular program. Please subject to
more opinions.
(2) Exhibit "A-1," respondent Board's Voting Slip for Television
showing its September 11, 1992 subsequent action on petitioner's
Series No. 115 as follows: 3
REMARKS:
This program is criticizing different religions, based on their own
interpretation of the Bible.
We suggest that the program should delve on explaining their own
faith and beliefs and avoid attacks on other faith.
(3) Exhibit "B," respondent Board's Voting Slip for Television
showing its October 9, 1992 action on petitioner's Series No. 119,
as follows: 4
REMARKS:
The Iglesia ni Cristo insists on the literal translation of the bible and
says that our (Catholic) veneration of the Virgin Mary is not to be
condoned because nowhere it is found in the bible that we should
do so.
This is intolerance and robs off all sects of freedom of choice,
worship and decision.
(4) Exhibit "C," respondent Board's Voting Slip for Television
showing its October 20, 1992 action on petitioner's Series No. 121
as follows: 5
REMARKS:
I refuse to approve the telecast of this episode for reasons of the
attacks, they do on, specifically, the Catholic religion.
I refuse to admit that they can tell, dictate any other religion that
they are right and the rest are wrong, which they clearly present in
this episode.
(5) Exhibit "D," respondent Board's Voting Slip for Television
showing its November 20, 1992 action on petitioner's Series No.
128 as follows: 6
REMARKS:
The episode presented criticizes the religious beliefs of the Catholic
and Protestant's beliefs.
We suggest a second review.
(6) Exhibits "E," "E-1," petitioner's block time contract with ABS-
CBN Broadcasting Corporation dated September 1, 1992. 7
(7) Exhibit "F," petitioner's Airtime Contract with Island
Broadcasting Corporation. 8
(8) Exhibit "G," letter dated December 18, 1992 of former
Executive Secretary Edelmiro A. Amante, Sr., addressed to Henrietta
S. Mendez reversing the decision of the respondent Board which x-
rated the showing of petitioner's Series No. 129. The letter reads in
part:
"xxx xxx xxx
The television episode in question is protected by the constitutional
guarantee of free speech and expression under Article III, section 4
of the 1987 Constitution.
We have viewed a tape of the television episode in question, as
well as studied the passages found by MTRCB to be objectionable
and we find no indication that the episode poses any clear and
present danger sufficient to limit the said constitutional guarantee."
(9) Exhibits "H," "H-1," letter dated November 26, 1992 of
Teofilo C. Ramos, Sr., addressed to President Fidel V. Ramos
appealing the action of the respondent Board x-rating petitioner's
Series No. 128.
On its part, respondent Board submitted the following exhibits, viz.:
(1) Exhibit "1," Permit Certificate for Television Exhibition No.
15181 dated December 18, 1992 allowing the showing of Series
No. 128 under parental guidance.
(2) Exhibit "2," which is Exhibit "G" of petitioner.
(3) Exhibit "3," letter dated October 12, 1992 of Henrietta S.
Mendez, addressed to the Christian Era Broadcasting Service which
reads in part:
xxx xxx xxx
In the matter of your television show "Ang Iglesia ni Cristo" Series
No. 119, please be informed that the Board was constrained to
deny your show a permit to exhibit. The material involved constitute
an attack against another religion which is expressly prohibited by
law. Please be guided in the submission of future shows.
After evaluating the evidence of the parties, the trial court issued a
writ of preliminary injunction on petitioner's bond of P10,000.00.
The trial court set the pre-trial of the case and the parties submitted
their pre-trial briefs. 9 The pre-trial briefs show that the parties'
evidence is basically the evidence they submitted in the hearing of
the issue of preliminary injunction. The trial of the case was set and
reset several times as the parties tried to reach an amicable accord.
Their efforts failed and the records show that after submission of
memoranda, the trial court rendered a Judgment, 10 on December
15, 1993, the dispositive portion of which reads:
"xxx xxx xxx
WHEREFORE, judgment is hereby rendered ordering respondent
Board of Review for Motion Pictures and Television (BRMPT) to grant
petitioner Iglesia ni Cristo the necessary permit for all the series of
'Ang Iglesia ni Cristo' program.
Petitioner Iglesia ni Cristo, however, is directed to refrain from
offending and attacking other existing religions in showing 'Ang
Iglesia ni Cristo' program.
SO ORDERED."
Petitioner moved for reconsideration 11 praying: (a) for the deletion
of the second paragraph of the dispositive portion of the Decision,
and (b) for the Board to be perpetually enjoined from requiring
petitioner to submit for review the tapes of its program. The
respondent Board opposed the motion. 12 On March 7, 1993, the
trial court granted petitioner's Motion for Reconsideration. It
ordered: 13
"xxx xxx xxx
WHEREFORE, the Motion for Reconsideration is granted. The second
portion of the Court's Order dated December 15, 1993, directing
petitioner to refrain from offending and attacking other existing
religions in showing 'Ang Iglesia ni Cristo' program is hereby deleted
and set aside. Respondents are further prohibited from requiring
petitioner Iglesia ni Cristo to submit for review VTR tapes of its
religious program 'Ang Iglesia ni Cristo'."
Respondent Board appealed to the Court of Appeals after its motion
for reconsideration was denied. 14
On March 5, 1995, the respondent Court of Appeals 15 reversed
the trial court. It ruled that: (1) the respondent board has jurisdiction
and power to review the TV program "Ang Iglesia ni Cristo," and (2)
the respondent Board did not act with grave abuse of discretion
when it denied permit for the exhibition on TV of the three series of
"Ang Iglesia ni Cristo" on the ground that the materials constitute an
attack against another religion. It also found the series "indecent,
contrary to law and contrary to good customs."
In this petition for review on certiorari under Rule 45, petitioner
raises the following issues:
I and/or political stability of the State;
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED
IN HOLDING THAT THE 'ANG IGLESIA NI CRISTO' PROGRAM IS
NOT CONSTITUTIONALLY PROTECTED AS A FORM OF RELIGIOUS
EXERCISE AND EXPRESSION.
II
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED
IN NOT HOLDING THAT BEING AN EXERCISE OF RELIGIOUS
FREEDOM, THE 'ANG IGLESIA NI CRISTO' PROGRAM IS SUBJECT
TO THE POLICE POWER OF THE STATE ONLY IN THE EXTREME CASE
THAT IT POSES A CLEAR AND PRESENT DANGER.
III
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED
IN HOLDING THAT THE MTRCB IS VESTED WITH THE POWER TO
CENSOR RELIGIOUS PROGRAMS.
IV
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED
IN HOLDING THAT THE 'ANG IGLESIA NI CRISTO,' A PURELY
RELIGIOUS PROGRAM IS INDECENT AND CONTRARY TO LAW
AND GOOD CUSTOMS.
The basic issues can be reduced into two: (1) first, whether the
respondent Board has the power to review petitioner's TV program
"Ang Iglesia ni Cristo," and (2) second, assuming it has the power,
whether it gravely abused its discretion when it prohibited the airing
of petitioner's religious program, series Nos. 115, 119 and 121, for
the reason that they constitute an attack against other religions and
that they are indecent, contrary to law and good customs.
The first issue can be resolved by examining the powers of the Board
under PD No. 1986. Its section 3 pertinently provides:
"Sec. 3 Powers and Functions. — The BOARD shall have the
following functions, powers and duties:
xxx xxx xxx
b) To screen, review and examine all motion pictures as herein
defined, television programs, including publicity materials such as
advertisements, trailers and stills, whether such motion pictures and
publicity materials be for theatrical or non-theatrical distribution for
television broadcast or for general viewing, imported or produced
in the Philippines and in the latter case, whether they be for local
viewing or for export.
c) To approve, delete objectionable portion from and/or
prohibit the importation, exportation, production, copying,
distribution, sale, lease, exhibition and/or television broadcast of
the motion pictures, television programs and publicity materials,
subject of the preceding paragraph, which, in the judgment of the
BOARD applying contemporary Filipino cultural values as standard,
are objectionable for being immoral, indecent, contrary to law
and/or good customs, injurious to the prestige of the Republic of the
Philippines and its people, or with a dangerous tendency to
encourage the commission of violence or of a wrong or crime, such
as but not limited to:
i) Those which tend to incite subversion, insurrection, rebellion
or sedition against the State, or otherwise threaten the economic
ii) Those which tend to undermine the faith and confidence of
the people, their government and/or duly constituted authorities.
iii) Those which glorify criminals or condone crimes;
iv) Those which serve no other purpose but to satisfy the
market for violence or pornography;
v) Those which tend to abet the traffic in and use of prohibited
drugs;
vi) Those which are libelous or defamatory to the good name
and reputation of any person, whether living or dead;
vii) Those which may constitute contempt of court or of any
quasi-judicial tribunal, or pertain to matters which are sub-judice in
nature (emphasis ours).
The law gives the Board the power to screen, review and examine
all "television programs." By the clear terms of the law, the Board
has the power to "approve, delete . . . and/or prohibit the . . .
exhibition and/or television broadcast of . . . television programs . .
." The law also directs the Board to apply "contemporary Filipino
cultural values as standard" to determine those which are
objectionable for being "immoral, indecent, contrary to law and/or
good customs, injurious to the prestige of the Republic of the
Philippines and its people, or with a dangerous tendency to
encourage the commission of violence or of a wrong or crime."
Petitioner contends that the term "television program" should not
include religious programs like its program "Ang Iglesia ni Cristo." A
contrary interpretation, it is urged, will contravene section 5, Article
III of the Constitution which guarantees that "no law shall be made
respecting an establishment of religion, or prohibiting the free
exercise thereof. The free exercise and enjoyment of religious
profession and worship, without discrimination or preference, shall
forever be allowed."
We reject petitioner's submission which need not set us adrift in a
constitutional voyage towards an uncharted sea. Freedom of religion
has been accorded a preferred status by the framers of our
fundamental laws, past and present. We have affirmed this
preferred status well aware that it is "designed to protect the
broadest possible liberty of conscience, to allow each man to believe
as his conscience directs, to profess his beliefs, and to live as he
believes he ought to live, consistent with the liberty of others and
with the common good." 16 We have also laboriously defined in our
jurisprudence the intersecting umbras and penumbras of the right to
religious profession and worship. To quote the summation of Mr.
Justice Isagani Cruz, our well-known constitutionalist: 17
Religious Profession and Worship
The right to religious profession and worship has a two-fold aspect,
viz., freedom to believe and freedom to act on one's beliefs. The
first is absolute as long as the belief is confined within the realm of
thought. The second is subject to regulation where the belief is
translated into external acts that affect the public welfare.
(1) Freedom to Believe
The individual is free to believe (or disbelieve) as he pleases
concerning the hereafter. He may indulge his own theories about life
and death; worship any god he chooses, or none at all; embrace or
reject any religion; acknowledge the divinity of God or of any being
that appeals to his reverence; recognize or deny the immortality of
his soul — in fact, cherish any religious conviction as he and he alone
sees fit. However absurd his beliefs may be to others, even if they
be hostile and heretical to the majority, he has full freedom to
believe as he pleases. He may not be required to prove his beliefs.
He may not be punished for his inability to do so. Religion, after all,
is a matter of faith. 'Men may believe what they cannot prove.' Every
one has a right to his beliefs and he may not be called to account
because he cannot prove what he believes.
(2) Freedom to Act on One's Beliefs
But where the individual externalizes his beliefs in acts or omissions
that affect the public, his freedom to do so becomes subject to the
authority of the State. As great as this liberty may be, religious
freedom, like all the other rights guaranteed in the Constitution, can
be enjoyed only with a proper regard for the rights of others. It is
error to think that the mere invocation of religious freedom will
stalemate the State and render it impotent in protecting the general
welfare. The inherent police power can be exercised to prevent
religious practices inimical to society. And this is true even if such
practices are pursued out of sincere religious conviction and not
merely for the purpose of evading the reasonable requirements or
prohibitions of the law.
Justice Frankfurter put it succinctly: 'The constitutional provision on
religious freedom terminated disabilities, it did not create new
privileges. It gave religious liberty, not civil immunity. Its essence is
freedom from conformity to religious dogma, not freedom from
conformity to law because of religious dogma.
Accordingly, while one has full freedom to believe in Satan, he may
not offer the object of his piety a human sacrifice, as this would be
murder. Those who literally interpret the Biblical command to "go
forth and multiply" are nevertheless not allowed to contract plural
marriages in violation of the laws against bigamy. A person cannot
refuse to pay taxes on the ground that it would be against his
religious tenets to recognize any authority except that of God alone.
An atheist cannot express his disbelief in acts of derision that wound
the feelings of the faithful. The police power can be validly asserted
against the Indian practice of the suttee born of deep religious
conviction, that calls on the widow to immolate herself at the funeral
pile of her husband.
We thus reject petitioner's postulate that its religious program is per
se beyond review by the respondent Board. Its public broadcast on
TV of its religious program brings it out of the bosom of internal
belief. Television is a medium that reaches even the eyes and ears
of children. The Court iterates the rule that the exercise of religious
freedom can be regulated by the State when it will bring about the
clear and present danger of some substantive evil which the State is
duty bound to prevent, i.e., serious detriment to the more overriding
interest of public health, public morals, or public welfare. A laissez
faire policy on the exercise of religion can be seductive to the liberal
mind but history counsels the Court against its blind adoption as
religion is and continues to be a volatile area of concern in our
country today. Across the sea and in our shore, the bloodiest and
bitterest wars fought by men were caused by irreconcilable religious
differences. Our country is still not safe from the recurrence of this
stultifying strife considering our warring religious beliefs and the
fanaticism with which some of us cling and claw to these beliefs. Even
now, we have yet to settle the near century old strife in Mindanao,
the roots of which have been nourished by the mistrust and
misunderstanding between our Christian and Muslim brothers and
sisters. The bewildering rise of weird religious cults espousing
violence as an article of faith also proves the wisdom of our rule
rejecting a strict let alone policy on the exercise of religion. For sure,
we shall continue to subject any act pinching the space for the free
exercise of religion to a heightened scrutiny but we shall not leave
its rational exercise to the irrationality of man. For when religion
divides and its exercise destroys, the State should not stand still.
It is also petitioner's submission that the respondent appellate court
gravely erred when it affirmed the ruling of the respondent Board
x-rating its TV Program Series Nos. 115, 119, 121 and 128. The
records show that the respondent Board disallowed the program
series for "attacking" other religions. Thus, Exhibits "A," "A-1,"
(respondent Board's Voting Slip for Television) reveal that its
reviewing members x-rated Series 115 for ". . . criticizing different
religions, based on their own interpretation of the Bible." They
suggested that the program should only explain petitioner's ". . . own
faith and beliefs and avoid attacks on other faiths." Exhibit "B" shows
that Series No. 119 was x-rated because "the Iglesia ni Cristo insists
on the literal translation of the bible and says that our Catholic
veneration of the Virgin Mary is not to be condoned because
nowhere it is found in the bible that we should do so. This is
intolerance . . ." Exhibit "C" shows that Series No. 121 was x-rated
". . . for reasons of the attacks, they do on, specifically, the Catholic
religion. . . . (T)hey can not tell, dictate any other religion that they
are right and the rest are wrong . . ." Exhibit "D" also shows that
Series No. 128 was not favorably recommended because it ". . .
outrages Catholic and Protestant's beliefs." On second review, it was
x-rated because of its "unbalanced interpretations of some parts of
the bible." 18 In sum, the respondent Board x-rated petitioner's TV
program series Nos. 115, 119, 121 and 128 because of petitioner's
controversial biblical interpretations and its "attacks" against
contrary religious beliefs. The respondent appellate court agreed
and even held that the said "attacks" are indecent, contrary to law
and good customs.
We reverse the ruling of the appellate court.
First. Deeply ensconced in our fundamental law is its hostility against
all prior restraints on speech, including religious speech. Hence, any
act that restrains speech is hobbled by the presumption of invalidity
and should be greeted with furrowed brows. 19 It is the burden of
the respondent Board to overthrow this presumption. If it fails to
discharge this burden, its act of censorship will be struck down. It
failed in the case at bar.
Second. The evidence shows that the respondent Board x-rated
petitioner's TV series for "attacking" other religions, especially the
Catholic church. An examination of the evidence, especially Exhibits
"A," "A-1," "B, "C," and "D" will show that the so-called "attacks" are
mere criticisms of some of the deeply held dogmas and tenets of
other religions. The videotapes were not viewed by the respondent
court as they were not presented as evidence. Yet they were
considered by the respondent court as indecent, contrary to law and
good customs, hence, can be prohibited from public viewing under
section 3(c) of PD 1986. This ruling clearly suppresses petitioner's
freedom of speech and interferes with its right to free exercise of
religion. It misappreciates the essence of freedom to differ as
delineated in the benchmark case of Cantwell v. Connecticut, 20 viz.:
xxx xxx xxx
In the realm of religious faith, and in that of political belief, sharp
differences arise. In both fields, the tenets of one man may seem the
rankest error to his neighbor. To persuade others to his own point of
view, the pleader, as we know, at times, resorts to exaggeration, to
vilification of men who have been, or are prominent in church or state
or even to false statements. But the people of this nation have
ordained in the light of history that inspite of the probability of
excesses and abuses, these liberties are, in the long view, essential
to enlightened opinion and right conduct on the part of the citizens
of democracy.
The respondent Board may disagree with the criticisms of other
religions by petitioner but that gives it no excuse to interdict such
criticisms, however, unclean they may be. Under our constitutional
scheme, it is not the task of the State to favor any religion by
protecting it against an attack by another religion. Religious dogmas
and beliefs are often at war and to preserve peace among their
followers, especially the fanatics, the establishment clause of
freedom of religion prohibits the State from leaning towards any
religion. Vis-a-vis religious differences, the State enjoys no banquet
of options. Neutrality alone is its fixed and immovable stance. In fine,
respondent board cannot squelch the speech of petitioner Iglesia ni
Cristo simply because it attacks other religions, even if said religion
happens to be the most numerous church in our country. In a State
where there ought to be no difference between the appearance and
the reality of freedom of religion, the remedy against bad theology
is better theology. The bedrock of freedom of religion is freedom of
thought and it is best served by encouraging the marketplace of
dueling ideas. When the luxury of time permits, the marketplace of
ideas demands that speech should be met by more speech for it is
the spark of opposite speech, the heat of colliding ideas that can
fan the embers of truth.
Third. The respondents cannot also rely on the ground "attacks
against another religion" in x-rating the religious program of
petitioner. Even a side-glance at section 3 of PD No. 1986 will
reveal that it is not among the grounds to justify an order prohibiting
the broadcast of petitioner's television program. The ground "attack
against another religion" was merely added by the respondent
Board in its Rules. 21 This rule is void for it runs smack against the
hoary doctrine that administrative rules and regulations cannot
expand the letter and spirit of the law they seek to enforce.
It is opined that the respondent board can still utilize "attack against
any religion" as a ground allegedly ". . . because section 3 (c) of PD
No. 1986 prohibits the showing of motion pictures, television
programs and publicity materials which are contrary to law and
Article 201 (2) (b) (3) of the Revised Penal Code punishes anyone
who exhibits "shows which offend any race or religion." We
respectfully disagree for it is plain that the word "attack" is not
synonymous with the word "offend." Moreover, Article 201 (2) (b)
(3) of the Revised Penal Code should be invoked to justify the
subsequent punishment of a show which offends any religion. It
cannot be utilized to justify prior censorship of speech. It must be
emphasized that E.O. 876, the law prior to PD 1986, included
"attack against any religion" as a ground for censorship. The ground
was not, however, carried over by PD 1986. Its deletion is a decree
to disuse it. There can be no other intent. Indeed, even the Executive
Department espouses this view. Thus, in an Opinion dated November
28, 1985 then Minister of Justice, now President of the Senate,
Neptali Gonzales explained:
"xxx xxx xxx
"However, the question whether the BRMPT (now MTRCB) may
preview and censor the subject television program of INC should be
viewed in the light of the provision of Section 3, paragraph (c) of
PD 1986, which is substantially the same as the provision of Section
3, paragraph (c) of E.O. No. 876-A, which prescribes the standards
of censorship, to wit: 'immoral, indecent, contrary to law and/or
good customs, injurious to the prestige of the Republic of the
Philippines or its people or with dangerous tendency to encourage
the commission of violence, or of a wrong' as determined by the
Board, 'applying contemporary Filipino cultural values as standard.'
As stated, the intention of the Board to subject the INC's television
program to 'previewing and censorship is prompted by the fact that
its religious program' makes mention of beliefs and practices of
other religion.' On the face of the law itself, there can conceivably
be no basis for censorship of said program by the Board as much as
the alleged reason cited by the Board does not appear to be within
the contemplation of the standards of censorship set by law."
(Emphasis supplied)
Fourth. In x-rating the TV program of the petitioner, the respondents
failed to apply the clear and present danger rule. In American Bible
Society v. City of Manila, 22 this Court held: "The constitutional
guaranty of free exercise and enjoyment of religious profession and
worship carries with it the right to disseminate religious information.
Any restraint of such right can be justified like other restraints on
freedom of expression on the ground that there is a clear and
present danger of any substantive evil which the State has the right
to prevent." In Victoriano vs. Elizalde Rope Workers Union, 23 we
further ruled that ". . . it is only where it is unavoidably necessary to
prevent an immediate and grave danger to the security and welfare
of the community that infringement of religious freedom may be
justified, and only to the smallest extent necessary to avoid the
danger."
The records show that the decision of the respondent Board,
affirmed by the respondent appellate court, is completely bereft of
findings of facts to justify the conclusion that the subject video tapes
constitute impermissible attacks against another religion. There is no
showing whatsoever of the type of harm the tapes will bring about
especially the gravity and imminence of the threatened harm. Prior
restraint on speech, including religious speech, cannot be justified by
hypothetical fears but only by the showing of a substantive and
imminent evil which has taken the life of a reality already on ground.
It is suggested that we re-examine the application of clear and
present danger rule to the case at bar. In the United States, it is true
that the clear and present danger test has undergone permutations.
It was Mr. Justice Holmes who formulated the test in Schenck v. US,
24 as follows: ". . . the question in every case is whether the words
used are used in such circumstances and are of such a nature as to
create a clear and present danger that they will bring about the
substantive evils that Congress has a right to prevent." Admittedly,
the test was originally designed to determine the latitude which
should be given to speech that espouses anti-government action.
Bannered by Justices Holmes and Brandeis, the test attained its full
flowering in the decade of the forties, when its umbrella was used
to protect speech other than subversive speech. 25 Thus, for instance,
the test was applied to annul a total ban on labor picketing. 26 The
use of the test took a downswing in the 1950's when the US Supreme
Court decided Dennis v. United States involving communist
conspiracy. 27 In Dennis, the components of the test were altered as
the High Court adopted Judge Learned Hand's formulation that ". .
. in each case [courts] must ask whether the gravity of the 'evil,'
discounted by its improbability, justifies such invasion of free speech
as is necessary to avoid the danger." The imminence requirement of
the test was thus diminished and to that extent, the protection of the
rule was weakened. In 1969, however, the strength of the test was
reinstated in Brandenburg v. Ohio, 28 when the High Court restored
in the test the imminence requirement, and even added an intent
requirement which according to a noted commentator ensured that
only speech directed at inciting lawlessness could be punished. 29
Presently in the United States, the clear and present danger test is
not applied to protect low value speeches such as obscene speech,
commercial speech and defamation. Be that as it may, the test is still
applied to four types of speech: speech that advocates dangerous
ideas, speech that provokes a hostile audience reaction, out of court
contempt and release of information that endangers a fair trial. 30
Hence, even following the drift of American jurisprudence, there is
reason to apply the clear and present danger test to the case at bar
which concerns speech that attacks other religions and could readily
provoke hostile audience reaction. It cannot be doubted that
religious truths disturb and disturb terribly.
It is also opined that it is inappropriate to apply the clear and
present danger test to the case at bar because the issue involves the
content of speech and not the time, place or manner of speech.
Allegedly, unless the speech is first allowed, its impact cannot be
measured, and the causal connection between the speech and the
evil apprehended cannot be established. The contention overlooks
the fact that the case at bar involves videotapes that are pre-taped
and hence, their speech content is known and not an X quantity.
Given the specific content of the speech, it is not unreasonable to
assume that the respondent Board, with its expertise, can determine
whether its sulphur will bring about the substantive evil feared by
the law.
Finally, it is also opined by Mr. Justice Kapunan that . . . the
determination of the question as to whether or not such vilification,
exaggeration or fabrication falls within or lies outside the
boundaries of protected speech or expression is a judicial function
which cannot be arrogated by an administrative body such as a
Board of Censors." He submits that a "system of prior restraint may
only be validly administered by judges and not left to administrative
agencies." The same submission is made by Mr. Justice Mendoza.
This thoughtful thesis is an attempt to transplant another American
rule in our jurisdiction. Its seedbed was laid down by Mr. Justice
Brennan in his concurring opinion in the 1962 case of Manual
Enterprise v. Day. 31 By 1965, the US Supreme Court in Freedman
v. Maryland 32 was ready to hold that "the teaching of cases is that,
because only a judicial determination in an adversary proceeding
ensures the necessary sensitivity to freedom of expression, only a
procedure requiring a judicial determination suffices to impose a
valid final restraint." 33
While the thesis has a lot to commend itself, we are not ready to
hold that it is unconstitutional for Congress to grant an administrative
body quasi-judicial power to preview and classify TV programs and
enforce its decision subject to review by our courts. As far back as
1921, we upheld this set-up in Sotto vs. Ruiz, 34 viz.:
"The use of the mails by private persons is in the nature of a privilege
which can be regulated in order to avoid its abuse. Persons possess
no absolute right to put into the mail anything they please,
regardless of its character.
On the other hand, the exclusion of newspaper and other
publications from the mails, in the exercise of executive power, is
extremely delicate in nature and can only be justified where the
statute is unequivocably applicable to the supposed objectionable
publication. In excluding any publication for the mails, the object
should be not to interfere with the freedom of the press or with any
other fundamental right of the people. This is the more true with
reference to articles supposedly libelous than to other particulars of
the law, since whether an article is or is not libelous, is fundamentally
a legal question. In order for there to be due process of law, the
action of the Director of Posts must be subject to revision by the courts
in case he had abused his discretion or exceeded his authority. (Ex
parte Jackson [1878], 96 U.S., 727; Public Clearing House vs. Coyne
[1903], 194 U.S., 497; Post Publishing Co. vs. Murray [1916], 23-
Fed., 773)
As has been said, the performance of the duty of determining
whether a publication contains printed matter of a libelous character
rests with the Director of Posts and involves the exercise of his
judgment and discretion. Every intendment of the law is in favor of
the correctness of his action. The rule is (and we go only to those
cases coming from the United States Supreme Court and pertaining
to the United States Postmaster-General), that the courts will not
interfere with the decision of the Director of Posts unless clearly of
opinion that it was wrong. (Bates & Guilid Co. vs. Payne [1904], 194
U.S., 106; Smith vs. Hitchcock [1912], 226 U.S., 63; Masses Pub. Co.
vs. Patten [1917], 246 Fed., 24. But see David vs. Brown [1900],
103 Fed., 909, announcing a somewhat different doctrine and relied
upon by the Attorney-General).
To be sure, legal scholars in the United States are still debating the
proposition whether or not courts alone are competent to decide
whether speech is constitutionally protected. 35 The issue involves
highly arguable policy considerations and can be better addressed
by our legislators.
IN VIEW WHEREOF, the Decision of the respondent Court of
Appeals dated March 24, 1995 is affirmed insofar as it sustained
the jurisdiction of the respondent MTRCB to review petitioner's TV
program entitled "Ang Iglesia ni Cristo," and is reversed and set
aside insofar as it sustained the action of the respondent MTRCB x-
rating petitioner's TV Program Series Nos. 115, 119, and 121. No
costs.
SO ORDERED.