VIOLATION OF SECS, 5 & ELIGIO BALUCA y BALAGULAN, ‘Accused, LL, ART. I OF RA. 9165 eee THE PEOPLE OF THE PHILIPPINES, Crim, Case No. 22610 Plaintiff, For: ~ Versus - VIOLATION OF SEC. 11, MELCHOR GETGANO y HIBAYA, ART. IL OF R.A. 9165 Accused. Meee eee reese n ne f ORDER The prosecution through Prosecutor Margie Tan-Alvaro filed three informations charging the above-named accused for violation of Sections 5 & 11, Article IL of RA 9165 (Sale and Possession of Dangerous Drugs) after an inquest proceeding was conducted finding a probable cause against both accused. Tt appears on the evidence on record particularly the attached joint affidavit of arrest of PCpl Miludino 3. Libres and PCpl Dominador T. Senal specifically in paragraphs 5 & 6 thereof which states that immediately after seizure, the items were marked and when the witnesses arrived one after the others few minutes later (the witnesses did not arrive simultaneously), 2 Remarkably, the marking of the seized items which is part of the inventory was made without the presence of the required witnesses and more significantly, it was only after the operation and the arrest of the accused when they (police) called the required witnesses for the conduct of the inventory. In other words, although the buy-bust team was able to secure the presence of the witnesses required under the law, records reveal that these witnesses were only preseat during the inventory (not even present during the marking) and they (witnesses) were not actually present during the operation or at least immediately after the Tn the case of People vs. de Vera (GR, Wo. 2189%4, July 30, 2018), the Supreme Court discussed the importance of the presence of the mandatory witnesses near the area where the buy-bust operation is conducted. It rufed in in this wise: "hea, so they can be aocly aoa howe jures, eo three 2 mar for wl sa il aprecisely to guard against the rather pervasive police practice of planting evidence in anti-narcotics operations - a practice that necessarily takes place at the point of seizure and confiscation. Hence, it is at this point that their presence is most crucial. As the Court had clearly itustrated: x xX x Without the insulating presence of the representative from the meala or the [DQT), er any elected public official during the seizure and marking of the sachets of shabu, the evils of switching, "plenting” or contamination of the evidence that had tainted the buy- busts conducted under the regime of RA No, 6425 (Dangerous Drugs Act of 1972) again reared their ugly heads as to negate the integrity and credibility of the seizune and confiscation of the sachets of shabu that were evidence herein of the corpus delicti, and thus adversely affected the trustworthiness of the incrimination of the accused. x The Supreme Court in the case of People vs, Malana (GR. No, 233747, December 5, 2018) and People vs. de la Cruz and Bautista (GR, Ne, 225747, December 5, 2018) which adopted a separate concurring opinion in People vs. Lim (G.R. No, 231989, September 4, 2018), the Importance of compliance of the requirement of the presence of civilian witnesses in the conduct of the inventory emphasized and underscored when it w ctice of police operatives of not bringing to the intended place of arrest the three witnesses, when they could easily do so - aret "calling them in" to the place of inventory to witness the Inventory and phatographing of the drags only after the buy-bust operation has already been finished - does not achieve the purpose Of the law in having these witnesses prevent or Insulate against the planting of drugs. To restate, the presence of the three witnesses at the time of seizure and confiscation of the drugs must be secured and complied with at the time of the warrantless arrest; such that they are required to be at or near the intended place of the arrest so that they can be ready to witness the inventory and photographing of the seized and confiscated drugs "immedistely after selzure and confiscation”: it is important to point out that the apprehending team in this case had more than ample time ta comply with the requirements established by faw". Also in the earlier case of Peaple ws. Tomawis (G.R. No. 228890, agai 18, 2018), the importance of the said rule was. ussed, thus: "The presence of the three witnesses must be secured not only during the inventory but more importantly at the tine of the warrantless arrest. a \Therefore, it was a critical lapse on the buy-bust team for Sécuring the Presence of the witnesses only after the seizure oF confiscation of the items. The court believes that if a justification exists for the failure of the police to comply this requirement, the same should have been stated in the affidavit itself, Needless to say, the evidence constituting the crime Must be ready and available at the very start of the Proceedings and made part of the records, although the proper presentation, identification and determination of its Senuineness, authenticity and admissibility could be done during tral. Since @ preliminary investigation (inquest Proceedings included) is designed to screen cases for trial, only evidence available during that stage may be considered and only after ‘sutficient evidence has been gathered and evaluated warranting the eventual prosecution of the case in court should the information be filed, In other words, it is not enough that the preliminary mot enation is conducted in the sense of making sure that a transgressor shall ot escape with impunity. The proceeding before the Prosecutor serves not only the purposes of the Hate. More Important, itis a part of the guarantee or freedom and fair play Which are the birthrights of all who five in our country, It is therefore imperative chon the prosecutor to relieve the accused from the pain ot going through a trial once it is ascertained that the evidence is insufficient to Sustain a prina facie case or that no probable Cause exists to form a sufficient belief as to the guilt of the accused (Sates vs, Sandiganbayan, GR. No, 493802, November 16, 2001) WHEREFORE, premises considered, the court finds no sufficient basis for the charge for violation of Sections 5 & 11 of RA. 9165 against both accused The cases are therefore DISMISSED for lack of probable cause, Accused Eligio Baluca y Balaguian and Melchor Getgano y Hibaya are Prdered released from custody of the law unless they are detained for another lawful cause. Serve copies of this order Provincial Prosecutor Macario Prosecutor Roberto B, Maligmat, Prosecutor Josie Vida Corre-s: Prosecutor Margie Tan-Alvaro, the accused, the Jail Warden, Boho! and the Philippine National Police Antaniars ne it SEs see oe ges * Sis #2 i sea bee