People of the Philippines vs. Jesus Dumagay y Suacito

FIRST DIVISION

February 7, 2018

G.R. No. 216753

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee vs. JESUS DUMA GAY y SUACITO, Accused-Appellant

DECISION

DEL CASTILLO, J.:

"[B]etter to set free ten men who might be probably guilty of the crime charged than to convict one innocent man for a crime he did not commit."1

This is an appeal filed by appellant Jesus Durnagay y Suacito from the October 23, 2014 Decision2 of the Court of Appeals (CA) in CA-G.R. CR HC No. 00985-MIN, affirming the August 26, 2011 Decision3 of the Regional Trial Court (RIC) of Zamboanga City, Branch 13 in Criminal Case No. 6030 (22827), finding the appellant guilty beyond reasonable doubt of violating Section 5, Article II of Republic Act (RA) No. 9165.

The Factual Antecedents

Appellant was charged with violation of Section 5, Article II of RA 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002, in an Information4 which reads:

That on or about October 14, 2006 in the City of Zamboanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, not being authorized by law to sell, deliver, give away to another, transport or distribute, any dangerous drug, did then and there willfully, unlawfully and feloniously sell and deliver to P02 JOSEPH RICHMOND C. JIMENEA, PNP, RUD-PRO 9, PDEA, who acted as poseur-buyer, twenty (20) vials of l ml. Morphine, one ( l) vial of 200 ml. Nandrolone Decanoate, two (2) syringes, which accused knowing the same to be dangerous drugs.

That further, the accused was at the time of his apprehension in possession of an unlicensed .45 Caliber pistol (Homemade) with Serial Number l 12074 with two (2) magazines and thirteen (l3) live ammunition for caliber .45 and a Lifan Mitsukoshi Motorcycle with Plate No. JH 7640 and Chassis No. LF3XCH7AX1AOOA363, which he used, in furtherance of the crime charged as special aggravating circumstances.

CONTRARY TO LAW.5

Appellant pleaded not guilty to the crime charged,6

Version of the Prosecution

During the trial, the prosecution presented PO3 Joseph Richmond Jimenea (PO3 Jimenea) and SPO4 Roy Bello Rosales (SPO4 Rosales) as witnesses.7 However, the presentation of SPOl Melvin Gallego (SPOl Gallego), the investigating officer, and Police Chief Inspector Mercedes D. Diestro (PCI Diestro), the forensic chemist, were dispensed with since the prosecution and the defense already agreed to a stipulation of facts.8 They stipulated that SPO1 Gallego was the investigator who received the appellant and the seized items; that he conducted an inventory of the items and took pictures thereof; and that ho prepared the Investigation Report and the Request for Laboratory Examination.9 They also stipulated that PCI Diestro received the Request for Laboratory Examination of the vials and conducted the examination thereon, which yielded a positive result for the presence of morphine.10

PO3 Jimenea testified that he was a member of the Philippine National Police (PNP) assigned at the Regional Intelligence & Investigation Division (RUD) PRO 9, Special Operations Group (SOG) in Zamboanga City;11 that on October 13, 2006, a confidential informant (CI) informed him that a certain "Buboy," later identified as appellant was selling morphine;12 that he relayed the information to Police Chief Inspector Aderito B. Lacema (PCI Lacema), who instructed him to confirm the report;13 that at about 5:00 p.m. of the same day, the CI called up appellant to buy morphine;14 that appellant agreed to meet them at about 7:00 p.m. of the same day at Suterville Intersection at San Roque near the gasoline station;15 that at around 7:00 p.m., appe1lant arrived on board a red motorcycle at the side of the gasoline station;16 that appellant talked with the CI in Chavacano dialect;17 that appellant asked if he was the buyer of the morphine;18 that appellant showed him one vial of morphine and asked how much he intends to buy;19 that he told him that he intends to purchase ₱3,000.00 worth of morphine;20 that appellant informed him that the said amount was good for 20 vials of morphine;21 that they exchanged cellphone numbers and agreed to meet at noon the next day near Western Mindanao Command (WESMINCOM);22 that he and the CI returned to their office to inform PCI Lacerna about the agreement with appellant;23 that PCI Lacema then informed SPO4 Rosales, the team leader of the SOG, to notify the other police operatives to be present at the office at 8:00 a.m. of October 14, 2006 for the briefing of the operation;24 that during the briefing, he was given the buy .. bust money, which was placed inside a white envelope;25 that it was also agreed that the prearranged signal would be a "thumbs up" sign;26 that around 10:00 a.m. that day, appellant contacted him and informed him that the morphine was ready for delivery at noon time in the vicinity of WESMINCOM;27 that at 11:30 a.m., he left ahead of the team while the other members followed and proceeded to the vicinity of WESMINCOM and positioned themselves at the vicinity of Paradise Bakery;28 that when appellant arrived on board his red motorcycle, appellant approached him and brought him to a corner so as not to be seen by passersby;29 that when appellant asked for the money, he gave him the white envelope containing the marked money;30 that appellant, in turn, took from his pocket the morphine placed inside a plastic bag;31 that after checking if the 20 vials were indeed morphine, he immediately made a ''thumbs up" sign;32 that SPO4 Rosales and PO3 Rommel Lamberte (PO3 Lamberte) and the other operatives immediately ran towards them to arrest appellant;33 that when appellant tried to flee, he immediately arrested him and informed him that he was a police officer;34 that appellant tried to escape and drew his gun; that they grappled for the gun causing them to fall on the ground; that appellant was subdued due to the timely arrival of SPO4 Rosales and PO1 Lamberte;35 that SPO4 Rosales confiscated the .45 pistol and the marked money from the pocket of appellant;36 that he informed appellant of the reason for his arrest and advised him of his constitutional rights; and later, brought him to their office in Camp Abendan, Mercedes;37 and that at the PNP office, he marked the seized items with his initials "JRCJ" and turned them over to SPOl Gallego, their investigating officer.38

SPO4 Rosales corroborated PO3 Jimenea's testimony and further testified that, after arresting appellant, they proceeded to the office, where he placed his initials "RBR" on the marked money which he later submitted to their investigator SPO1 Gallego as shown in the Certificate of Inventory dated October 14, 2006, signed by P/Insp. Lany Domingo (Pi Domingo), the representatives from the media and the Department of Justice (DOJ), and appellant himself;39 that the said items were marked with SPO1 Gallego's initials, "MRG;"40 that these items were photographed by SPOl Gallego and then brought to the PNP Regional Crime Laboratory Office-9, Zamboanga City on the same day for laboratory examination;41 that the contents of the 20 vials seized from appellant were subjected to laboratory examination at the PNP Regional Crime Laboratory Office by Forensic Chemist PCI Diestro;42 that the Chemistry Report43 confirmed that the vials contained morphine;44 and that as a result, an Investigation Report was prepared by SPO 1 Gallego, recommending the filing of cases in court against appellant for violation of Section 5, Article II of RA 9165 and of RA 8294.45

Version of the Appellant

Appellant, on the other hand, denied the accusations against him and testified that he was at the area to meet a certain "Bill," a member of the American Navy, to run errands for him;46 that while waiting for Bill, he went inside the canteen located at the back of the gas dump;47 that when he came out, he saw four policemen positioned outside the canteen;48 that he was approached, manhandled and hit continuously by the policemen;49 that there were several witnesses, among them was Sgt. Rogelio Necesario (Sgt. Necesario);50 and that he was brought to the police station, where the policemen demanded money from him.51

Sgt. Necesario testified that he has been a member of the Philippine Army since October 27, 1997;52 that appellant used to run errands for the American soldiers who joined the Balikatan Exercises;53 that on the said date, he was at the gas dump located at WESMINCOM;54 that he saw appellant enter the canteen; and that after a few minutes, he saw him board the PDEA van blind-folded, handcuffed, with plaster on his mouth, and lying face down on the floor.55 On cross-examination, he clarified that, from where he was positioned at that time, he could not see what was inside the canteen; and that about five minutes elapsed from the time he saw appellant enter the canteen and the time he saw him again inside the van.56

Ruling of the Regional Trial Court

On August 26, 2011, the R TC rendered a Decision finding appellant guilty of the crime charged. The dispositive portion of the Decision reads:

WHEREFORE, the foregoing considered, this Court finds accused JESUS DUMAGAY y SUACITO GUILTY beyond reasonable doubt of the crime of "VIOLATION OF SECTION 5, ARTICLE II OF R.A. 9165["] and hereby sentences him to suffer a penalty of LIFE IMPRISONMENT and a fine of FIVE HUNDRED THOUSAND PESOS (Php 500,000) without subsidiary imprisonment.

The dangerous drug subject of this case is ordered confiscated for proper disposal.

SO ORDERED.57

Ruling of the Court of Appeals

Appellant appealed the RTC Decision arguing that there was no valid buy-bust operation and that the police officers failed to comply with Section 21 of RA 9165, or the Chain of Custody Rule.58

On October 23, 2014, the CA rendered a Decision affirming the RTC Decision.1'шphi1 The CA ruled that based on the evidence presented there was a valid buy-bust operation.59 As to the chain of custody, the CA noted that the non-compliance with the Chain of Custody Rule was never raised during the trial of the case.60 In any case, the CA found that the Chain of Custody Rule was followed notwithstanding the non-presentation of SPOl Gallego and PCI Diestro.61 It also ruled that although the RTC committed an error in describing the dangerous drug as "methamphetan1ine hydrochloride" instead of morphine during the August 4 and 7, 2008 hearings and in its August 4, 2008 Order, such erroneous description does not affect the actual evidence presented and offered by the prosecution, which are the vials of morphine recovered from appellant.62

Hence, appellant filed the instant appeal, raising the same arguments he had in the CA.

On August 3, 2015, the Court required both parties to file their respective supplementary briefs; however, they opted not to file the same.63

The Court's Ruling

The appeal is meritorious.

Appellant contends that there was no valid buy-bust operation as he was allegedly instigated or induced to commit the crime by the CI;64 and that the prosecution failed to show that the Chain of Custody Rule was followed since the investigating officer and the forensic chemist failed to testify in court.65 He likewise puts in issue the error of the RTC in describing the dangerous drug subject of this case as "methamphetamine hydrochloride," instead of morphine during the August 4 and 7, 2008 hearings and in the August 4, 2008 Order.66

There was a valid Buy-Bust Operation.

There is instigation when "the accused is lured into the commission of the offense charged in order to prosecute him."67 On the other hand, "[t]here is entrapment when law officers employ ruses and schemes to ensure the apprehension of the criminal while in the actual commission of the crime."68 A buy-bust operation is a fom1 of entrapment used to apprehend drug peddlers.69 It is considered valid as long as it passes the "objective test," which demands that "the details of the purported transaction during the buy-bust operation must be clearly and adequately shown, i.e., the initial contact between the poseur-buyer and the pusher, the offer to purchase, and the promise or payment of the consideration until the consummation of the sale by the delivery of the illegal drug subject of the sale."70

In the instant case, the CA correctly found that there was a valid buy-bust operation as the prosecution was able to establish details of the transaction from the initial contact of the poseur-buyer and the appellant up to the consummation of the sale by the delivery of the morphine. The identities of the poseur-buyer and the appellant, as the seller of the morphine, and the details of the procedure employed by the police operatives in conducting the buy-bust were clearly established by the prosecution. The fact that the poseur-buyer? through the CI, solicited morphine from appellant is not prohibited by law and does not render the buy-bust operation invalid as, under prevailing jurisprudence, "a police officer's act of soliciting drugs from the accused during a buy-bust operation, or what is known as a 'decoy solicitation,' is not prohibited by law and does not render the buy-bust operation invalid."71

However, while there was a valid buy-bust operation, the Court finds that the prosecution failed to establish an unbroken chain of custody of the seized items, i.e., there were missing links.

The Prosecution failed to establish an unbroken chain of custody of the seized items.

Chain of custody is "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."72

Section 21, Article II of RA 9165, as amended by RA 10640,73 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, x x x so confiscated, seized and/or surrendered, for proper disposition in the following manner:

(1) The apprehending team having initial custody and control of the dangerous drugs, x x x shall, immediately after seizure and confiscation, conduct a physical inventory of the seized items and photograph the same in the presence of the accused or the persons from whom such items were confiscated and/or seized, or his/her representative or counsel, with an elected public official and a representative of the National Prosecution Service or the media 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, .finally, That noncompliance of 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 and custody over said items.

(2) Within twenty-four (24) hours upon confiscation/seizure of dangerous drugs, x x x the same shall be submitted to the PDEA Forensic Laboratory for a qualitative and quantitative examination;

(3) A certification of the forensic laboratory examination results x x x shall be issued immediately upon the receipt of the subject item/s: Provided, That when the volume of dangerous drugs, x x x does not allow the completion of testing within the time frame, a partial laboratory examination report shall be provisionally issued stating therein the quantities of dangerous drugs still to be examined by the forensic laboratory: Provided, however, That a final certification shall be issued immediately upon completion of the said examination and certification;

The Court has consistently ruled that each link in the chain of custody rule must be sufficiently proved by the prosecution and examined with careful scrutiny by the court.74 The prosecution has the burden to show ''every link in the chain, from the moment the dangerous drug was seized from the accused until the time it is offered in court as evidence."75 Failure to strictly comply with rules of procedure, however, does not ipso facto invalidate or render void the seizure and custody over the items as long as the prosecution is able to show that "(a) there is justifiable ground for noncompliance; and (b) the integrity and evidentiary value of the seized items are properly preserved."76 Thus, in case the police officers fail to strictly comply with the rules of procedure, they must be able to "explain the reasons behind the procedural lapses, and that the integrity and value of the seized evidence had nonetheless been preserved x x x because the Court cannot presume what these grounds are or that they even exist."77 In other words, taking into consideration the difficulty of complete compliance with the chain of custody requirement, the Court has considered substantial compliance sufficient "as long as the integrity and evidentiary value of the seized items are properly preserved by the apprehending police officers."78

In this case, it was established by the testimonies of the prosecution's witnesses and the stipulation of facts agreed by the parties that PO3 Jimenea and SPO4 Rosales marked the seized items with their initials at the police station; that PO3 Jimenea tun1ed over the seized items to SPOl Gallego; that after the seized items were turned over to him, SPO1 Gallego marked and photographed them;79 that an Inventory80 of the seized items was then made in the presence of appellant and the representatives of the media and the DOJ; that SPO1 Gallego then prepared a Request for the Laboratory Examination81 of the seized vials, which were then brought to the crime laboratory on the same day; that PCT Diestro examined the specimen she received; and that her findings were reduced into writing in the Chemistry Report.82

No testimonies or stipulations, however, were made on the details of the turnover of the seized vials from the police station to the crime laboratory, and the turnover and submission of the same from the crime laboratory to the court, as only the following facts were stipulated:

In today's trial, the proposed testimony of [SPO1 Gallego] was dispensed with and [the] parties agreed to stipulate the following: that he was the investigator in this case; that he took cognizance of this case by vi1iue of the Investigation Report - Exhibit "L[;]" that he received the person of the [appellant], twenty pieces/vials of Morphine Sulfate - Exhibit "B[;]" one big vial [Decaject] 200; two syringe[s] - Exhibit "C;" five pieces of ₱l00.00 bills - Exhibit ''H[;]" picture - Exhibit "J[;]" finger prints - Exhibit ''N[;]" Inventory -- Exhibit "I[;]" that he prepared the forwarding report - Exhibit "M[;J" and that he has no personal knowledge as to the actual exchange of the buy-bust money and the dangerous drugs and the articles. x x x83

In today's trial, the testimony of the first witness for the prosecution, [PC1 Diestro] was dispensed with and the parties agreed to stipulate on the following: that the witness is an expert in the field of forensic chemistry; that she was assigned at the PNP Crime Laboratory Office No. 9 on October 14, 2006; that on said date, their office received a request for laboratory examination from the [RIID-SOG], Exhibit ''A;" Twenty (20) pieces/vials of Morphine Sulfate, one (l) big vial Decaject 200 - Exhibit "B," which she examined and gave positive result for the presence of methamphetamine hydrochloride, a dangerous drug, whose findings were reduced into writing in Chemistry Report No. D-158-2006, marked as Exhibit "E;" that the said witness has no personal knowledge as to the source of the specimen. x x x84

From the foregoing, it is very evident that the prosecution in dispensing with the testimonies of SPO1 Gallego, the investigating officer, and PCI Diestro, the forensic chemist, failed to show every link of the chain of custody. Without the testimonies or stipulations stating the details on when and how the seized vials were brought to the crime laboratory, and thereafter, to the court, as well as the details on who actually delivered and received the same from the police station to the crime laboratory, and later, to the court for the prosecution's presentation of evidence, the Court cannot ascertain whether the seized vials presented in evidence were the same vials seized from appellant when he was arrested. These gaps in the chain of custody create doubt as to whether the corpus delicti of the crime had been properly preserved. And more importantly, although appellant was charged with violation of. Section 5, Article II of RA 9165 for selling vials of morphine and Napdrolone Decanoate, the parties however stipulated, per August 4, 2008 Order of the RTC, that the items seized from appellant yielded positive results for the presence of methamphetamine hydrochloride or shabu. Clearly, the identity of the corpus delicti of the crime had not been properly established.

The prosecution likewise failed to give an explanation or a justifiable reason why the apprehending police officers had failed to mark the seized items and conduct the physical inventory of the same at the place where the appellant was arrested. It bears stressing that the marking of the apprehending police officers' initials or signatures on the seized items must be made in the presence of the accused immediately upon arrest.85 And although the Chain of Custody Rule allows the physical inventory of the seized items to be done at the nearest police station, this is more of an exception than a rule. Police officers, therefore, must provide an explanation to justify their failure to conduct the marking and the physical inventory at the place of arrest.

The Court also noticed that, although the prosecution stipulated that SPO1 Gallego conducted the inventory,86 the Certificate of Inventory87 was signed by a certain PI Domingo.

Considering all the foregoing, the Court finds that the prosecution failed to (1) prove the corpus delicti of the crime; (2) establish an unbroken chain of custody of the seized drugs; and (3) offer any explanation why the Chain of Custody Rule was not complied with. Accordingly, the Court is constrained to acquit appellant based on reasonable doubt.

WHEREFORE, the appeal is GRANTED. The assailed October 23, 2014 Decision of the Court of Appeals in CA-G.R. CR HC No. 00985-MIN, which affirmed the August 26, 2011 Decision of the Regional Trial Court of Zamboanga City, Branch 13, in Criminal Case No. 6030 (22827) is hereby REVERSED and SET ASIDE.

Accordingly, appellant Jesus Dun1agay y Suacito is ACQUITTED based on reasonable doubt.

The Director of the Bureau of Corrections is directed to cause the immediate release of appellant, unless the latter is being lawfully held for another cause, and to inform the Court of the date of his release or reason for his continued confinement within five days from notice.

SO ORDERED.

MARIANO C. DEL CASTILLOAssociate Justice

WE CONCUR:

MARIA LOURDES P.A. SERENOChief JusticeChairperson

ALEXANDER G. GESMUNDO*Associate Justice

C E R T I F I C A T I O N

Pursuant to the Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court's Division.

MARIA LOURDES P.A. SERENOChief Justice

Footnotes

* Designated as additional member per November 29, 2017 raffle vice J. Jardeleza who recused due to prior action as Solicitor General.

1 People v. Sarap, 447 Phil. 642, 653 (2003).

2 Rollo, pp. 2-32; penned by Associate Justice Rafael Antonio M. Santos and concurred in by Associate Justices Edgardo T. Lloren and Edward B. Contreras.

3 Records, pp. 112-122; penned by Presiding Judge Eric D. Elumba.

4 Id. at 1.

5 Id.

6 Rollo, p. 3.

7 Id. at 4.

8 Id.

9 ld. at 9 and 25-26.

10 Id.

11 Id. at 4.

12 Id.

13 Id.

14 Id.

15 Id.

16 Id.

17 Id.

18 Id. at 5.

19 Id.

20 Id.

21 Id.

22 Id.

23 Id.

24 Id.

25 Id.

26 Id.

27 Id.

28 Id.

29 Id.

30 Id. at 6.

31 Id.

32 Id.

33 Id.

34 Id.

35 Id.

36 Id.

37 Id.

38 Id.

39 Id. at 7.

40 Id.

41 Id.

42 Id.

43 Exhibit "E" of the Prosecution, folder of' Exhibits, p. 2.

44 Rollo, p. 8.

45 Id.

46 Id. at 10.

47 Id.

48 Id.

49 Id.

50 Id. at 11.

51 Id. at l0-11.

52 Id. at 9.

53 Id.

54 Id.

55 Id. at 9-10.

56 Id. at 10.

57 Records, p. l21.

58 Rollo, p. 17.

59 Id. at 13- l 8.

60 Id. at 30.

61 Id. at 18-28.

62 Id. at 28-29.

63 Id. at 51.

64 CA, rollo, pp. 18-23.

65 Id. at 23-28,

66 Id. at 24.

67 People v. Pagkalinawan, 628 Phil. 101, 112 (2010).

68 Chang v. People, 528 Phil. 740, 751 (2006).

69 People v. Pagkalinawan, supra at 113.

70 Id.

71 Id. at 114.

72 People v. Gayoso, G.R. No. 206590, March 27, 2017: citing People v. Havana, G.R. No. 198450, January 11, 2016, 778 SCRA 524, 534-535.

73 AN ACT TO FURTHER STRENGTHEN THE ANTI-DRUG CAMPAIGN OF THE GOVERNMENT, AMENDING FOR THE PURPOSE SECTION 2! OF REPUBLIC ACT NO. 9165, OTHERWISE KNOWN AS THE ''COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002." Approved July 15. 2014.

74 Peoplev. Bartolini, G.R. No. 215192, July 47, 2016, 798 SCRA 711, 724.

75 Id. at 720.

76 Peoplev. Geronimo, G.R. No. 225500, September 11. 2017.

77 Id.

78 Peoplev. Morale, 725 Phil. 556, 571 (2014).

79 Exhibit "J" of the Prosecution, Folder of Exhibits, p. 7.

80 Exhibit "I" of the Prosecution, id. at 6.

81 Exhibit "A" of the Prosecution, id. at 1.

82 Rollo, pp. 6-9 and 26-29.

83 Records, p. 69; Order dated August 7, 2008.

84 Id. at 63; Order dated August 4, 2008.

85 People v. Ismael, G.R. No. 208093, February 20, 2017.

86 Rollo, pp. 9 and 26: TSN dated August 1; 2008, p, 3.

87 Id. at 7 and 25; Exhibit "1" of the Prosecution, Folder of Exhibits, p. 6.