People of the Philippines vs. Felecisimo Bombasi Y Vergara

SECOND DIVISION

[ G.R. No. 230555, October 09, 2019 ]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, V. FELECISIMO[*]'BOMBASI Y VERGARA, ACCUSED-APPELLANT.

DECISION

LAZARO-JAVIER, J.:

The Case

This appeal seeks to reverse the Decision dated July 28, 20161'of the Court of Appeals in CA-G.R. CR-HC No. 07180, affirming the conviction of appellant Felecisimo Bombasi y Vergara for: (a) violation of Section 5, Article II of Republic Act No. 91652'(RA 9165) and imposing on him life imprisonment and Five Hundred Thousand Pesos (P500,000.00) fine; and (b) Section 11 of the same act and imposing on him twelve (12) years and one day as minimum to fourteen (14) years and eight months as maximum and Three Hundred Thousand Pesos (P300,000.00) fine.

The Proceedings Before the Trial Court

Appellant Felecisimo Bombasi y Vergara was charged with violation of Sections 5 and 11, Article II of RA 9165 under two (2) separate Informations:

Criminal Case No. 11-8056-SPL

(Section 5, Article II of RA 9165)

That on or about October 27, 2011, in the Municipality of San Pedro, Province of Laguna, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, without any authority from the law, did then and there, willfully, unlawfully and feloniously, sell, pass, deliver and convey one (1) small heat-sealed transparent plastic sachet containing zero point zero two (0.02) gram of methamphetamine hydrochloride (shabu), a dangerous drug, to a police poseur-buyer in exchange for two hundred peso genuine bill.

CONTRARY TO LAW.3

Criminal Case No. 11-8057-SPL

(Section 11, Article II of RA 9165)

That on or about October 27, 2011, in the Municipality of San Pedro, Province of Laguna, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, without any authority from the law, did then and there, willfully, unlawfully and feloniously have in his possession, control and custody, one (1) small heat-sealed transparent plastic sachet containing zero point zero two (0.02) gram of methamphetamine hydrochloride (shabu).

CONTRARY TO LAW.4

On arraignment, appellant pleaded not guilty.5'Trial ensued.

PO2 Sonny Xyrus De Leon, PO1 Rick Jaison Almadilla,6'and Forensic Chemist Donna Villa Huelgas testified for the prosecution. On the other hand, appellant and his neighbor Myrna Lacap testified for the defense.

Version of the Prosecution

On October 27, 2011, around 10 o'clock in the morning, Police Senior Inspector (P/S Insp.) Jaime Pederio, Jr. received a report from a confidential informant that alias "Toto Turat" was involved in illegal drug activities in Barangay Cuyab, San Pedro, Laguna. P/S Insp. Pederio, Jr. relayed the information to the Chief of Police, Police Superintendent (P/Supt.) Kirby John B. Kraft, who instructed them to verify the information. Thus, P/S Insp. Pederio, Jr., PO2 De Leon, PO1 Almadilla, and two (2) confidential informants proceeded to Barangay Cuyab. There, they observed "Toto Turat" and confirmed his illegal drug activities. The team returned to the police station to prepare the buy-bust operation. PO2 De Leon was designated as poseur buyer while PO1 Almadilla and P/S Insp. Pederio, Jr. as back up.7

Around 12 o'clock in the afternoon, the buy-bust team returned to Barangay Cuyab, San Pedro, Laguna. PO2 De Leon and the confidential informant went to the residence of "Toto Turat." Meantime, the back up team strategically positioned themselves close by and waited for the pre-arranged signal.8

When PO2 De Leon and the confidential informant reached the house of "Toto Turat," the latter who was up in its terrace saw them. Upon seeing them from the terrace, "Toto Turat" went down. The confidential informant told "Toto Turat" "kukuha kami." To this, the latter asked "kukuha kayo?" They then handed two (2) P100.00 bills to "Toto Turat" who, in turn, drew two (2) small heat-sealed transparent plastic sachet from his pocket and asked PO2 De Leon to choose one. PO2 De Leon took a sachet and slid it into his right pocket. While the confidential informant was conversing with "Toto Turat," PO2 De Leon called P/S Insp. Pederio, Jr. to signal that the sale had been consummated.9

In response, the back up team immediately closed in. PO2 De Leon introduced himself to "Toto Turat," frisked the latter, and confiscated from him the other small heat-sealed transparent plastic sachet. PO2 De Leon also marked the sachets bought and confiscated with "FB-P1" and "FB-B1" and slid them into his pocket. The buy-bust team arrested "Toto Turat" who was later identified as appellant Felecisimo Vergara Bombasi.10

At the police station, the team conducted a physical inventory of the seized items and took photographs of appellant, the seized items, and the buy-bust money. The inventory was made in the presence of a media representative. The team prepared a request for laboratory examination of the contents of the small plastic sachets. PO2 De Leon brought the plastic sachets to the crime laboratory where Forensic Chemist Huelgas received them.11

Per Chemistry Report No. D-616-11, Forensic Chemist Huelgas found the specimens positive for methamphetamine hydrochloride (shabu), a dangerous drug.12

The prosecution offered the following exhibits: "A" to "A-2" - PO2 De Leon's Pinanumpaang Salaysay dated October 27, 2011;13'"B" to "B-2" - PO1 Almadilla's Pinanumpaang Salaysay dated October 27, 2011;14'"C" - Request for Laboratory Examination dated October 27, 2011;15'"D" - Chemistry Report No. D-616-11 dated October 27, 2011;16'"E" - Coordination Form dated October 27, 2011;17'"F" - Pre-Operation Report dated October 27, 2011;18'"G" - Certification of Inventory dated October 27, 2011;19'"H" to "H-1" - photographs;20'"I" to "I-1" - two (2) marked P100.00 bills;21'and "J" to "J-1" - two small heat-sealed transparent plastic sachet marked "FB-B1" and "FB-P1."

Version of the Defense

On October 27, 2011, between 11 o'clock in the morning and 12 o'clock in the afternoon, appellant was having lunch with his wife and children in his home in Barangay Cuyab, San Pedro, Laguna. Suddenly, PO2 De Leon, whom he frequently saw in barangay fiestas, barged in, asked him to stand up, and frisked him. His wife asked PO2 De Leon why he was being arrested. PO2 De Leon simply replied "ako na bahala dito." PO2 De Leon made him board a police vehicle where other police officers were waiting. He was taken to the police station. He was made to sit in front of a table on top of which PO2 De Leon laid two (2) small plastic sachets.22

The Trial Court's Ruling

By Consolidated Judgment dated November 5, 2014,23'the trial court found appellant guilty as charged,'viz:

WHEREFORE, foregoing considered, judgment is hereby rendered as follows:

1. In Criminal Case No. 11-8056-SPL, accused Felicisimo Bombasi y Vergara is hereby found GUILTY beyond reasonable doubt of violation of Section 5, Article II of RA 9165 and is hereby sentenced to suffer the penalty of life imprisonment and to pay a fine of Five Hundred Thousand (P500,000.00) Pesos without subsidiary imprisonment in case of insolvency.

The period of his preventive imprisonment (shall) be given full credit.

2. In Criminal Case No. 11-8057-SPL, accused Felicisimo Bombasi y Vergara is (hereby) found GUILTY beyond reasonable doubt of violation of Section 11, Article II of Republic Act No. 9165 and is hereby sentenced to suffer the penalty of twelve (12) years and one day as minimum to fourteen (14) years and eight months as maximum and to pay a fine of Three Hundred Thousand (P300,000.00) pesos without subsidiary imprisonment in case of insolvency.

Let the two plastic sachets of shabu subject matter of these cases be immediately forwarded to the Philippine Drug Enforcement Agency for its disposition as provided by law. The P200.00 buy-bust money is ordered forfeited in favour of the government and deposited in the National Treasury through the Office of the Clerk of Court.

SO ORDERED.24

The Proceedings Before the Court of Appeals

On appeal, appellant faulted the trial court for rendering a verdict of conviction. He argued25'that the prosecution failed to prove with moral certainty the identity and integrity of the alleged seized drugs. The prosecution witnesses' accounts of the incident were inconsistent. Too, it was not shown how the alleged seized items were handled and stored after it was examined. The marking, inventory, and taking of photograph were done sans the presence of an elected public official and a representative from the Department of Justice (DOJ). Considering these irregularities, the trial court erred in applying the presumption of regularity in the performance of the police officers' duty.

For its part, the Office of the Solicitor General, through Senior State Solicitor M.L. Carmela P. Aquino-Cagampang, countered, in the main:26'(a) the elements of illegal sale and illegal possession of dangerous drugs were all duly proven by the prosecution; (b) the presumption of regularity in the performance of official duties in favor of the arresting officers prevailed over appellant's unsubstantiated denial; and (c) the alleged custodial and procedural lapses did not materially impair the integrity of the seized drugs.

The Court of Appeals' Ruling

By its assailed Decision dated July 28, 2016,27'the Court of Appeals affirmed.

The Present Appeal

Appellant now seeks affirmative relief from the Court and plead anew for his acquittal.

For the purpose of this appeal, both the OSG and appellant manifested that in lieu of supplemental briefs, they were adopting their respective briefs before the Court of Appeals.28

Issue

Was the chain of custody rule complied with?

Ruling

In illegal drugs cases, the drug itself constitutes the'corpus delicti'of the offense. The prosecution is, therefore, tasked to establish that the substance illegally possessed by the accused is the same substance presented in court.29

The illegal sale and possession of dangerous drugs was allegedly committed on October 27, 2011. The applicable law is RA 9165 before its amendment in 2014.

Section 21 of RA 9165 prescribes the standard in preserving the'corpus delicti'in illegal drug cases,'viz:

SEC. 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drags, 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)

xxx xxx xxx

The IRR of RA 9165 further commands:

Section 21.'(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: x x x'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)

To ensure the integrity of the seized drug item, the prosecution must account for each link in its chain of custody.'People v. de Leon30'enumerates the'links'in the chain of custody which must be shown for the successful prosecution of illegal sale of dangerous drugs,'i.e.'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.

This is the chain of custody rule. It came to fore due to the unique characteristics of illegal drugs which render them indistinct, not readily identifiable, and easily open to tampering, alteration, or substitution either by accident or otherwise.31

The'first link'speaks of seizure and marking which should be done immediately at the place of arrest and seizure. It also includes the physical inventory and taking of photograph of the seized or confiscated items which should be done in the presence of the accused, a media representative, a representative from the Department of Justice (DOJ), and any elected public official.

Here, PO2 De Leon testified:

Q: Where did you place the plastic sachet you recovered from alias Toto?

A: I placed my markings and then I put it in my pocket, sir.

Q: You mean to say, immediately thereafter you placed markings on that item?

A: Yes, sir.32

Q: Mr. Witness, you mentioned that you marked the item that you were able to confiscate from the possession of alias Toto, is that correct?

A: Yes, sir.

Q: How about the other item that you (were) able to buy?

A: I also put markings, sir.

Q: Where?

A: Also at the place of arrest, sir.33

PO1 Almadilla, on the other hand testified that he saw the plastic sachets for the first time at the police station.34

The Certification of Inventory35'(Exhibit "G") was signed by Nick Luares, a media personnel.

The'first link'in the chain of custody had been repeatedly breached.

One.'It was not clearly shown where the marking of the seized items was done. PO2 De Leon averred it was in the place of arrest, but no one corroborated it; he did not mention who were present during the marking. Even appellant's name was not mentioned. One of the members of the back up team, PO1 Almadilla, said he only saw the seized items at the police station. It was also not clear from PO1 Almadilla's testimony whether the items were already marked when he saw them at the police station.

Two.'The seized items were not inventoried at the place of arrest in Barangay Cuyab, San Pedro, Laguna. The inventory and taking of photograph were done only at the police station. The prosecution did not acknowledge, let alone, explain this procedural deviation.

Three.'Only a media representative was present during the inventory. There was no representative from the DOJ nor any elected public official. Notably, the prosecution once again failed to address this procedural lapse.

The Court has repeatedly held that the required witnesses must be present even during the time of arrest.'People v. Escaran36'is apropos:

x x x It bears emphasis that the presence of the required witnesses at the time of the apprehension and inventory is mandatory, and that the law imposes the said requirement because their presence serves an essential purpose. In'People v. Tomawis, the Court elucidated on the purpose of the law in mandating the presence of the required witnesses as follows:

The presence of the witnesses from the DOJ, media, and from public elective office is necessary to protect against the possibility of planting, contamination, or loss of the seized drug. Using the language of the Court in'People v. Mendoza, without the'insulating presence'of the representative from the media or the DOJ and any elected public official during the seizure and marking of the drugs, the evils of switching, "planting" or contamination of the evidence that had tainted the buy-busts conducted under the regime of RA 6425 (Dangerous Drugs Act of 1972) again reared their ugly heads as to negate the integrity and credibility of the seizure and confiscation of the subject sachet that was evidence of the'corpus delicti, and thus adversely affected the trustworthiness of the incrimination of the accused.

The presence of the three witnesses must be secured not only during the inventory but more importantly'at the time of the warrantless arrest.'It is at this point in which the presence of the three witnesses is most needed, as it is their presence at the time of seizure and confiscation that would belie any doubt as to the source, identity, and integrity of the seized drug. If the buy-bust operation is legitimately conducted, the presence of the insulating witnesses would also controvert the usual defense of frame-up as the witnesses would be to able testify that the buy bust operation and inventory of the seized drugs were done in their presence in accordance with Section 21 of RA 9165.

The practice of police operatives of not bringing to the intended place of arrest the three witnesses, when they could easily do so - and "calling them in" to the place of inventory to witness the inventory and photographing of the drugs 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 "immediately after seizure and confiscation". (Emphasis supplied)

In'People v. Rojas,37'the Court similarly acquitted the accused because the presence of representatives from the DOJ and the media was not obtained despite the fact that the buy-bust operation on the accused was supposedly pre-planned. Here, the prosecution similarly did not acknowledge nor explain this deficiency.

In'People v. Paz,38'the Court acquitted the accused because there was no showing at all that representatives from the media and DOJ were present during the inventory and taking of photograph of the seized items.

Recently, in'People v. Vistro,39'the Court acquitted the accused in light of the arresting team's non-compliance with the three-witness rule during the physical inventory and photograph of dangerous drugs.

Next, the'second link'pertains to the turnover of the illegal drug seized by the apprehending officer to the investigating officer.40'Here, none of the prosecution witnesses testified as to whom the seized items were turned over. Aside from the alleged inventory, the taking of photograph, and the preparation of the request for laboratory examination and certificate of inventory, the prosecution was totally silent as to the other aspects of the proceedings conducted at the police station. The apprehending officers did not at all mention to whom the seized items were turned over, or who stood as the investigating officer.

The'third link'pertains to the turnover by the investigating officer to the forensic chemist of the illegal drugs for laboratory examination.⌊aшΡhi⌊ Here, the Request for Laboratory Examination dated October 27, 201141'(Exhibit "C") shows that PO2 De Leon delivered the alleged seized items to the crime laboratory where Forensic Chemist Huelgas received them.

But aside from PO2 De Leon's bare allegation that he remained in possession of the alleged item during transit from the police station up to the crime laboratory, there was no showing how the same was truly handled after the inventory up until it was handed over to Forensic Chemist Huelgas.

In'People v. Bermejo,42'the Court acquitted appellant therein because there was no proof how the seized drug was handled during the second and third links. The Court ruled that considering these intervening gaps, it cannot be reasonably concluded that the confiscated item was the same one presented for laboratory examination and eventually presented in court.

Lastly, the'fourth link'pertains to the turnover and submission of the seized item from the forensic chemist to the court. Here, after Forensic Chemist Huelgas examined the specimens, she claimed to have given the same to the evidence custodian.43'It was not shown, however, how the evidence custodian handled and stored the seized items before the same was retrieved for presentation in court.

In'Bermejo44'appellant therein was acquitted because no specific details were given as to who turned over the specimen, who received the same, who the evidence custodian is, and how the specimen was handled while in the custody of those persons.

Mallillin v. People45'ordained:

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.46'(Emphasis supplied)

In'People v. A'o,47'the Court decreed that if the chain of custody procedure had not been complied with, or no justifiable reason exists for its non-compliance, then it is the Court's duty to overturn the verdict of conviction.

Indeed, the multiple violations of the chain of custody rule here cast serious uncertainty on the identity and integrity of the'corpus delicti. The metaphorical chain did not link at all, albeit, it unjustly restrained appellant's right to liberty. Verily, therefore, a verdict of acquittal is in order.

ACCORDINGLY, the appeal is'GRANTED. The Decision dated July 28, 2016 of the Court of Appeals in CA-G.R. CR-HC No. 07180 is'REVERSED AND SET ASIDE. Appellant Felecisimo Bombasi y Vergara is'ACQUITTED'of violation of Sections 5 and 11, Article II of Republic Act No. 9165 (RA 9165).

The Court further'DIRECTS'the Director of the Bureau of Corrections, Muntinlupa City to: (a) cause the immediate release of Felecisimo Bombasi y Vergara from custody unless he is being held for some other lawful cause or causes; and (b) inform the Court of the action taken within five (5) days from notice.

Let entry of judgment immediately issue.

SO ORDERED.

Carpio (Chairperson), Caguioa, J. Reyes, Jr., and'Zalameda, JJ., concur.

Footnotes

*'Sometimes referred to as "FELICISIMO" in some parts of the'Rollo.

1'Penned by Associate Justice Remedios A. Salazar-Fernando and concurred in by Associate Justice Priscilla J. Baltazar-Padilla and Associate Justice Socorro B. Inting, CA'rollo, pp. 186-200.

2'Otherwise known as the Comprehensive Dangerous Drugs Act of 2002.

3'Record, p. 1.

4'Id. at 1A.

5'Id. at 40-42.

6'Later on referred to in the records as PO2 Rick Jaison Almadilla.

7'TSN, June 25, 2013, pp. 3-6.

8'TSN, November 13, 2012, p. 7; TSN, June 25, 2013, pp. 6-7.

9'TSN, November 13, 2012, pp. 7-9.

10'Id. at 9-10.

11'TSN, November 13, 2012, pp. 10-12; TSN, June 25, 2013, pp. 10-12.

12'TSN, November 13, 2012, p. 12; Record, p. 67.

13'Record, pp. 6-8.

14'Id. at 9-10.

15'Id. at 11.

16'Id. at 12.

17'Id. at 13.

18'Id. at 14.

19'Id. at 15.

20'Id. at 20.

21'Id. at 18.

22'TSN, January 28, 2014, pp. 3-5.

23'Penned by Judge Sonia T. Yu-Casano, CA rollo, pp. 87-93; Record, pp. 130-136.

24'CA'rollo, p. 93; Record, p. 136.

25'See Appellant's Brief dated October 29, 2015, CA'rollo, pp. 70-85.

26'See Appellee's Brief dated May 10, 2016, CA'rollo, pp. 116-133.

27'CA'rollo, pp. 186-200.

28'Rollo, pp. 29-30 and 24-25.

29'See'People v. Barte, 806 Phil. 533, 542 (2017).

30'G.R. No. 227867, June 26, 2019.

31'See'People v. Hementiza, 807 Phil. 1017, 1026 (2017).

32'TSN, November 13, 2012, p. 9.

33'Id. at 11.

34'TSN, June 25, 2013, p. 10.

35'Record, p. 15.

36'G.R. No. 212170, June 19, 2019.

37'G.R. No. 222563, July 23, 2018.

38'G.R. No. 233466, August 07, 2019.

39'G.R. No. 225744, March 6, 2019.

40'See'People of the Philippines v. Myrna Gayoso, 808 Phil. 19, 32 (2017).

41'Exhibit "A," Record, p. 58.

42'G.R. No. 199813, June 26, 2019; Also see'People of the Philippines v. Myrna Gayoso, 808 Phil. 19, 33-34.

43'Record, p. 67.

44'G.R. No. 199813, June 26, 2019

45'Mallillin v. People, 576 Phil. 576 (2008).

46'Id. at 587

47'G.R. No. 230070, March 14, 2018.