People of the Philippines vs. Rommel Diputado

THIRD DIVISION

July 5, 2017

G.R. No. 213922

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee vs. ROMMEL DIPUTADO, Accused-Appellant

DECISION

TIJAM, J.:

Challenged in this appeal is the Decision1 dated December 16, 2010 of the Court of Appeals (CA) in CA-G.R. CEB-CR-HC No. 00968, which affirmed the Decision2 dated September 2, 2008 of the Regional Trial Court (RTC) of Iloilo City, Branch 36, in Criminal Case No. 06-62342 finding Rommel Diputado (accused-appellant) guilty beyond reasonable doubt for violation of Section 5, Article II of Republic Act (R.A.) No. 9165, otherwise known as the "Comprehensive Dangerous Drugs Act of 2002."

The accusatory portion of the Information reads as follows:

That on or about the 7th day of March 2006, in the City of Iloilo, Philippines and within the jurisdiction of this Court, said accused, with deliberate intent and without any justifiable motive, did then and there willfully, unlawfully and criminally sell, distribute and deliver to a PNP poseur buyer one (1) heat-sealed transparent plastic packet containing 3.957 grams of rnethamphetamine hydrochloride (shabu), a dangerous drug, in consideration of twenty-four thousand pesos, without the authority to sell and distribute the same; that four (4) pieces of twenty-peso marked bills with Serial Numbers DV076150, DV811721, KW270225 and DT923404 which form part of the buy-bust money were recovered from the possession of the herein accused.

CONTRARY TO LAW.3

Upon arraignment, accused-appellant pleaded not guilty to the charge. Thereafter, trial ensued.

The pertinent facts, as narrated by the RTC, are as follows:

A. Version of the Prosecution

On February 27, 2006, an asset of to [sic] the Office of the Regional Special Anti-Crime Task Force (RSAC-TF) of the Philippine National Police, Region 6 went to their Office and gave an information to P/Sr. Insp. Gallardo that a certain Rommel Dipuitado [sic] (the herein accused who was identified in Court), who was in the Watch List of said Task Force, is engaged in selling drugs in Brgy. San Vicente, Jaro, Iloilo City. Upon receipt of said information, Inspector Gallardo instructed PO1 Ronald Estares and POl Ygan, both members of said Task Force, to conduct surveillance and test buy on the accused. Accordingly, PO1 Estares and POI Ygan together with the asset, who gave the information, conducted a test buy on the accused on March 3, 2006 in Brgy. San Jose, Molo, Iloilo City. During the test buy, they were able to purchase suspected shabu from the accused worth P500.00 and when they returned to their Office, P/Sr. Inspector Gallardo instructed them to conduct a buy-bust operation. Thus, on the morning of March 7, 2006, P/Sr. Inspector Gallardo conducted a briefing wherein PO 1 Estares was designated to be the poseur-buyer with PO 1 Lord Arnbrocio as his buddy who will give a support. Also, during the briefing, P/Sr. Inspector Gallardo gave to POI Estares a buy-bust money amounting to ₱24,000.00 consisting of five Twenty Peso bills, four of which were authenticated at the Iloilo City Prosecution Office, and the others were fake money in different denominations. Moreover, PO1 Estares and PO1 Ambrocio were informed that the buy-bust operation will be conducted at around 1:00 o'clock in the afternoon in Brgy. San Vicente, Jaro, Iloilo City where they will meet their asset who was used during the test-buy and that the group of P/Sr. Inspector Gallardo will also serve as back-up.

Then, at around 10:00 o'clock in the morning of the same day, PO1 Estares and Ambrocio proceeded to Brgy. San Vicente, Jaro, Iloilo City and upon arrival thereat, they positioned themselves at a billiard hall and an eatery where they waited for their asset. After about one and a half hour[s], the asset arrived at the area and said asset informed PO1 Estares to wait for the accused. By 12:45 noontime, the accused arrived and as such, PO1 Estares transacted with accused at the comer of the street for the purchase of shabu worth ₱24,000.00. During the transaction, the accused told PO1 Estares and PO1 Ambrocio to just wait and then said accused left the place. After a while, the accused arrived and alighted from a taxi, approached PO1 Estares and PO I Ambrocio and then he asked for the money. Accordingly, PO1 Estares handed to the accused their buy-bust money which accused placed inside his pocket and then, he handed to PO1 Estares a big sachet containing white crystalline substance. At that point, PO1 'Estares and PO1 Ambrocio introduced themselves as police officers and they immediately frisked the accused which resulted to the recovery of the buy-bust money by POl Estares: Thereafter, the group of P/Sr. Inspector Gallardo, who was "miss called" [sic] by PO1 Ambrocio, arrived at the scene of the incident and they brought the accused to the house of the barangay captain about 100 meters away together with the item subject of the buy-bust.

At the house of the barangay captain, the subject item and the buy-bust money were recorded/listed by P02 Lucilo Mayores in a document which was signed by the barangay kagawads and media representative. After the recording, the items were gathered by PO1 Estares who brought them to their Office where he marked the plastic sachet with white crystalline substance with RDM, the initial of the accused. Then, PO1 Estares turned over the listed items to PO1 Alfredo Tilano, the Exhibit Custodian of RSAC-TF. Thereafter, the items were brought to the Iloilo City Prosecution Office where they were inventoried before Prosecutor Elvas and in the presence of a barangay kagawad and media representative who also signed the document relative thereto. After the inventory, the plastic sachet with white crystalline substance was submitted to the PNP Crime Laboratory for examination.

x x x x

B. Version of the Defense

At around 1:00 o'clock on the afternoon of March 7, 2005(sic) after accused has taken lunch in his house in Brgy. North San Jose, Molo, Iloilo City, he rode in a taxi in order to go to Brgy. Tabuc-Suba, Jaro, Iloilo City as he was requested by a friend to butcher a pig. Unfortunately, on the way to his friend and while passing Brgy. San Vicente, Jaro, the taxi ridden by accused was blocked by three persons, one of whom went to the door of the taxi and greeted the accused. Then, said person brought the accused at the back of the taxi and after a while, said accused was brought by the persons to the house of the Barangay Captain of Brgy. San Vicente, about one hundred meters away. At the house of the Barangay Captain, accused was surprised when the three persons presented money and shabu to the Barangay Captain and he was directed to point at the said items. Initially, he refused to point at the items but eventually he pointed at the items and at that point, he was photographed with the use of a cellphone. Thereafter, accused was brought to the Hall of Justice.4

On September 2, 2008, the RTC found5 the accused-appellant guilty beyond reasonable doubt for illegal selling of dangerous drugs, to wit:

WHEREFORE, judgment is hereby rendered finding accused Rommel Diputado y Montefolka GUILTY beyond reasonable doubt of Violation of Section 5, Article II of Republic Act No. 9165 and sentencing him to suffer the penalty of life imprisonment and to pay the fine of Five Hundred Thousand (₱500,000.00) Pesos.

The plastic sachet of shabu (Exhibit "H-1") and its container subject of the criminal case is [sic] confiscated in favor of the government and the OIC Branch Clerk of Court is directed to turn over said item to the Philippine Drug Enforcement Agency, Region 6 for proper disposition pursuant to existing rules and regulations.

On the other hand, the five (5) pieces of Twenty Peso bills (Exhibits "1" to "1-4") including the fake money amounting to ₱23,900.00 (Exhibit "1-5") is ordered to be returned to the Regional Special Anti-Crime Task Force of the Philippine National Police.

SO ORDERED.6

The CA, in its Decision7 dated December 16, 2010, affirmed in toto the ruling of the RTC, thus:

WHEREFORE, in view of all the foregoing considerations, the September 2, 2008 Decision of the Regional Trial Court, Branch 36, Iloilo City and its Order dated October 30, 2008, is hereby AFFIRMED.

SO ORDERED.8

Hence, this appeal with accused-appellant raising the following issue in his Supplemental Brief:9

WHETHER OR NOT THE TRIAL COURT AND THE COURT OF APPEALS BOTH. ERRED IN FINDING THAT THE EVIDENCE OF THE PROSECUTION WAS SUFFICIENT TO CONVICT THE ACCUSED OF THE ALLEGED SALE OF METHAMPHETAMINE HYDROCHLORIDE, IN VIOLATION OF SECTION 5 OF R.A. [NO.] 9165.10

Accused-appellant claims that the seized illegal drug was not marked immediately after his arrest at the scene of the crime, neither was it marked at the house of the barangay captain where the seized illegal drug and the buy-bust money were allegedly initially recorded/listed by PO1 Lucilo Mayores (PO1 Mayores ). The seized illegal drug was only marked at the office of the Regional Special Anti-Crime Task Force (RSAC-TF) by PO1 Ronald Estares (PO1 Estares) with the initial "RDM." Accused-appellant further argues that there was no evidence on record that photographs were . taken during the inventory of the seized items. Another break in the chain of custody, according to the accused-appellant, was the failure of the prosecution to present P03 Allen Holleza (P03 Holleza), the person who allegedly received the Request for Laboratory Examination.11 The non-presentation of PO3 Holleza was fatal to the prosecution's case considering that there is an additional marking, i.e., "RGE", on the plastic sachet which was not mentioned in any document presented by the prosecution nor was it explained by PO1 Estares, PO1 Mayores and PO1 Alfredo Tilano (PO1 Tilano). Thus, the procedural lapses or the gaps in the chain of custody of the illegal drug and the failure of the police officers to offer a justifiable reason for their non-compliance with the requirements of Section 21 of R.A. No. 9165, create a reasonable doubt as to the integrity and evidentiary value of the seized illegal drug.

The appeal is meritorious.

At the outset, appeal in criminal cases throws the whole 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.12 After a careful review and scrutiny of the records, We hold that the prosecution failed to preserve the integrity and evidentiary value of the seized dangerous drugs. As such, the acquittal of the accused-appellant comes in a matter of course.

In a successful prosecution for illegal sale of dangerous drugs, like shabu, the following elements must be established: (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. What is material in a prosecution for illegal sale of dangerous drugs is the proof that the transaction or sale actually took place, coupled with the presentation in court of the corpus delicti.13 It is however not enough that the prosecution merely establish the elements of the crime of illegal sale of dangerous drugs. It is well-settled that in the prosecution of cases involving the illegal sale or illegal possession of dangerous drugs, the evidence of the corpus delicti which is the ' dangerous drug itself, must be independently established beyond reasonable doubt.14

The duty of the prosecution is not merely to present in evidence the seized illegal drugs. It is essential that the illegal drugs seized from the suspect is the very same substance offered in evidence in court as the identity of the drug must be established with the same unwavering exactitude as that required to make a finding of guilt.15 The identity and integrity of the corpus delicti must definitely be shown to have been preserved. This requirement necessarily arises from the illegal drug's unique characteristic that renders it indistinct, not readily identifiable, and easily open to tampering, alteration or substitution either by accident or otherwise.16

To remove any doubt or uncertainty on the identity and integrity of the seized drug, evidence must definitely show that the illegal drug presented in court is the same illegal drug actually recovered from the accused- appellant.17 Thus, Section 21 of R.A. No 9165 provides for the procedure that ensures that what was confiscated is the one presented in court, to wit:

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;

(2) Within twenty-four (24) hours upon confiscation/seizure of dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment, 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, which shall be done under oath by the forensic laboratory examiner, shall be issued within twenty-four (24) hours after the receipt of the subject item/s: Provided, That when the volume of the dangerous drugs, plant sources of dangerous drugs, and controlled precursors and essential chemicals 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 on the completed forensic laboratory examination on the same within the next twenty-four (24) hours;

This rule was elaborated in Section 21(a), Article II of the Implementing Rules and Regulations of R.A. No. 9165, to wit:

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 arrest; Provided, further, that noncompliance 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.

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 and the presentation in court for identification and destruction.18 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.

Crucial in proving the chain of custody is the marking of the seized drugs or other related items immediately after they have been seized from the accused.1'wphi1 "Marking" means the placing by the apprehending officer or the poseur-buyer of his/her initials and signature on the items seized. Marking after seizure is the starting point in the custodial link. It is vital that the seized contraband be immediately marked because succeeding handlers of the specimens will use the markings as reference. The marking of the evidence serves to separate the marked evidence from the corpus of all other similar or related evidence from the time they are seized from the accused until they are disposed of at the end of the criminal proceedings, thus, preventing switching, planting or contamination of evidence.19

In the present case, PO1 Estares testified that he did not mark the seized item immediately after the arrest of the accused-appellant at the place where the latter was arrested.20 It is also undisputed that PO1 Estares did not mark the seized item in the house of the barangay captain, 100 meters away from the place of the arrest, where the initial listing/recording of the seized item and the buy-bust money was conducted. According to PO1 Estares, the seized item was only marked with the initials "RDM" at the office of the RSAC-TF. Thus:

PROS. GUADALOPE:

After Rommel Diputado handed to you this sachet containing white crystalline substance what did you do?

WITNESS:

We immediately introduced ourselves as police officers.

After introducing yourselves what did you do to Rommel Diputado?

As standard operating procedure we immediately frisked him and after we frisked him we recovered the buy-bust money.

Who recovered?

I was the one who recovered.

Thereafter, what did you do to Rommel Diputado?

We informed him of his constitutional rights.

Before informing him of his constitutional rights, for what reason did you frisk him?

WITNESS

For selling of illegal drugs, sir.

After you informed him of his constitutional rights what happened next?

Our troupes situated nearby responded to us.

When Police Officer Gallardo and the other members responded what happened next?

The subject was brought to the house of the barangay captain.

COURT:

How about the items which you bought?

I brought it with me.

Yes but what did you do with that?

I just handled it sir, going to the house of the barangay captain.

How far is this house of the barangay captain from that place of the incident where you arrested Diputado?

More or less 100 meters sir.

And at the house of this barangay captain what happened there?

A receipt of confiscated items was prepared there.

After that where did you proceed?

We proceeded to the office at Camp Martin Delgado.

And who was carrying the items subject of the listing there?

I was the one, sir.

And at the office what transpired, there if you can recall?

I indorsed the items to our property custodian and I marked it.

What marking did you place on the item, if you can recall?

I placed RDM, initial of Rommel Diputado.21

Hence, in the initial step of the chain of custody, a gap already occurred. The seized item was not marked immediately at the place where accused-appellant was arrested.1'wphi1 Neither was it marked in the house of the barangay captain where the seized item and the buy-bust money were recorded and listed by PO1 Mayores. The seized item was marked only after the recording/listing and only at the RSAC-TF. Therefore, the integrity and evidentiary value of the seized item was already compromised. The prosecution was not able to establish an unbroken chain of custody. From the time of the seizure of the dangerous drug up to the time that the same was brought to the office of the RSAC-TF, alteration, substitution or contamination of the seized item could have happened. In fact, the Receipt of Confiscated or Seized Articles22 does not mention any markings on the seized item. Even the Complaint-Affidavit23 executed by PO1 Estares and PO1 Ambrocio did not mention any markings on the seized item.

There are cases when the chain of custody is relaxed such as when the marking of the seized item is allowed to be undertaken at the police station rather than at the place of arrest for as long as it is done in the presence of the accused.1'wphi1 Even if We relax the application of the marking requirement in this case, the same will not suffice to sustain the conviction of accused-appellant.24 In this instance, there is nothing in the testimony of PO1 Estares that he marked the seized item in the presence of accused-appellant. Further, PO1 Estares did not even make any effort to proffer any justification as to why he failed to mark the seized item at the place of the arrest or even in the house of the barangay captain.

We observe that while PO1 Estares testified that he placed the marking "RDM" at the RSAC-TF prior to the inventory conducted by the Iloilo Prosecution Office, the Inventory of Confiscated or Seized Articles,25 however, does not show any markings on the seized item. Then, suddenly the marking "RDM" only appeared in the Request for Laboratory Examination.26 These incidents put into doubt as to when the marking of the seized item had taken place.

Another circumstance which rendered the corpus delicti doubtful is the sudden appearance of the marking "RGE." The said marking was not apparent in any document nor was it explained in the testimonies of PO1 Estares, PO1 Mayores and PO1 Tilano. Forensic Chemist Rea Villavicencio (FC Villavicencio) testified that:

Madam Witness, the Chemistry Report which is also marked as Exhibit 'E', the specimen described therein as one small heat sealed transparent plastic bag with markings. What do you mean by this 'with markings', Madam Witness?

The markings I have observed when the specimen was submitted for examination which is RDM, RGE and an initial.

What you received, what markings does it have?

The same markings RDM and there was also a marking ofRGE.

You said, you verified awhile ago the one that you received from the request, is that correct?

Yes, your Honor.

And did you notice anything wrong with that, in the markings?

The additional RGE but the RDM is placed or inscribed on the plastic bag which made me conclude that it was the same specimen.27

The prosecution failed to elaborate on the additional marking of ' "RGE" on the seized item. Neither did the prosecution make an effort to clarify the same. Who could have placed the additional marking? Is there another person who handled the seized item which the prosecution failed to identify or failed to present? These are the doubts that linger in Our minds. PO3 Holleza, who allegedly received the Request for Laboratory Examination from PO1 Estares, was the only one who can shed light on the said marking. Sadly, the prosecution failed to present him. As such, another break in the chain of custody occurred. The prosecution failed in its duty to ensure that the seized item from accused-appellant was the same item marked and subjected to examination and ultimately presented in court.

The presumption of regularity in the performance of official duties in favor of the police officers will not save the prosecution's case, given the foregoing lapses and gaps in the chain of custody. The presumption stands only when no reason exists in the records by which to doubt the regularity of the performance of official duty. And even in that instance, the presumption of regularity will never be stronger than the presumption of innocence in favor of the accused. Otherwise, a mere rule of evidence will defeat the constitutionally enshrined right of an accused.28

It is well-settled that an accused-appellant shall be presumed innocent until the contrary is proven beyond reasonable doubt. The burden lies with the prosecution to overcome this presumption of innocence by presenting proof beyond reasonable doubt. The prosecution 'must rest on its own merits and must not rely on the weakness of the defense. If the prosecution fails to meet the required evidence, the defense does not even need to present evidence in its own behalf; the presumption prevails and the accused-appellant should be acquitted.29

Since the prosecution was not able to establish an unbroken chain of custody, reasonable doubt exists as to the guilt of the accused-appellant. Thus, We are constrained to acquit accused-appellant on the ground of reasonable doubt.

WHEREFORE, the instant appeal is GRANTED. The December 16, 2010 Decision of the Court of Appeals in CA-G.R. CEB-CR-HC No. 00968 is REVERSED AND SET ASIDE. The accused-appellant Rommel Diputado y Montefolka is hereby ACQUITTED of the charge of violation of Section 5, Article II of Republic Act No. 9165. Accused-appellant is ordered immediately RELEASED from custody, unless he is being held for another lawful cause.

Let a copy of this Decision be furnished to the Director of the Bureau of Corrections, Muntinlupa City for immediate implementation, who is then also directed to report to this Court the action he has taken within five (5) days from receipt of this Decision.

SO ORDERED.

NOEL GIMENEZ TIJAMAssociate Justice

WE CONCUR:

PRESBITERO J. VELASCO, JR.Associate JusticeChairperson

MARVIC M.V.F. LEONEN*Associate Justice

A T T E S T A T I O N

I attest 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.

PRESBITERO J. VELASCO, JR.Associate JusticeChairperson, Third Division

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

Pursuant to the Section 13, Article VIII of the Constitution and the Division Chairperson's Attestation, 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 additional Member per Raffle dated February 20, 2017 vice Associate Justice Francis H. Jardeleza.

1 Penned by Associate Justice Agnes Reyes-Carpio, concurred in by Associate Justices Edgardo L. Delos Santos and Eduardo B. Peralta, Jr., rollo, pp. 4-11.

2 Penned by Judge Victor E. Gelvezon, CA rollo, pp. 16-33.

3 Records, p. 1.

4 CA rollo, pp. 18-22.

5 See Decision dated September 2, 2008, supra note 2.

6 CA rollo, pp. 32-33.

7 Supra note 1.

8 Rollo, p. 11.

9 Id. at 28-49.

10 Id. at 28.

11 Records, p. 131.

12 People of the Philippines v. Ramil Doria Dahil and Rommel Castro y Carlos, G.R. No. 212196, January 12, 2015.

13 People of the Philippines v. Glenn Salvadoy y Bal Verde, G.R. No. 190621, February 10, 2014.

14 People of the Philippines v. Joselito Beran y Zapanta@ "Jose", G.R No. 203028, January 15, 2014.

15 People of the Philippines v. Vivian Bulotano y Amante, G.R. No. 190177, June 11, 2014.

16 Lita Lopez v. People of the Philippines, G.R. No. 188653, January 29, 2014.

17 Id.

18 People of the Philippines v. Sonny Sabdulay Amanda, G.R. No. 184758, April 21, 2014.

19 Supra note 11.

20 TSN, March 14, 2007, p. 40.

21 Id. at 19-26.

22 Records, p. 129.

23 Id. at 134-135.

24 Supra note. 11.

25 Records , p. 130.

26 Id. at 131.

27 TSN, August 11, 2006, pp. 16-18.

28 People of the Philippines v. Larry Mendoza y Estrada, G.R. No. 192432, June 23, 2014.

29 Supra note 16.