REPUBLIC OF THE PHILIPPINES

COURT OF APPEALS
MANILA
 
 
 
CA-G.R. CR NO. HC-04084
 
 
 
PEOPLE OF THE PHILIPPINES,
Plaintiff-Appellee,
 
-versus-

NUKTAR CUEVAS AND HAKIM AMIL,

Accused-Appellants.

 
X- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X
 
 
 
 
BRIEF FOR THE ACCUSED-APPELLANTS
 
 
 
 
ATTY. AMELIA C. GARCHITORENA
ATTY. ABRAHAM C. ONG
 
and
 
ATTY. ALLAN JULIUS B. AZCUETA
 
PUBLIC ATTORNEY’S OFFICE
DOJ Agencies Building 
NIA Road, cor. East Avenue,
Diliman, Quezon City

TABLE OF CONTENTS
1|Page
 Pages

I. Assignment of Errors……................................. 3
II. Statement of the Case................................... 4
III. Statement of the Facts................................... 6
IV. Arguments.................................................... 13

AUTHORITIES CITED:

1. People v. Chua Ho San, supra.; citing Terry v. Ohio, 20 L Ed 2d, 896

adopted in Posadas v. Court of Appeals, 188 SCRA 288 [1990]; and
People v. Ramos, 222 SCRA 557 [1993]
2. People v. Roel Encinada, GR No. 116720 : October 2, 1997
3. People v. Rosa Aruta, G.R. No. 120915, April 3, 1998
4. People v. Robles, G.R. No. 177220, April 24, 2009.
5. People v. Ranilo De La Cruz, G.R. No. 177222, October 29, 2008.
6. People v. Santos, Jr., G.R. No. 175593, October 17, 2007, 536 SCRA
489, 504.
7. People v. Nazareno, G.R. No. 174771, September 11, 2007, 532 SCRA
630, 641.
8. People v. Orteza, G.R. No. 173051, July 31, 2007, 528 SCRA 750,
758-759.
9. Junie Mallillin Y. Lopez v. People, G.R. No. 172953, April 30, 2008
10. People v. Gum-Oyen, G.R. No. 182231, April 16, 2009.
11. People v. Denoman, G.R. No. 171732, August 14, 2009.
12. People v. Coreche, G.R. No. 182528, August 14, 2009.
13. People v. Obmiranis, G.R. No. 181492, December 16, 2008, 574
SCRA 140, 156.
14. People v. Che Chun Ting, G.R. Nos. 130568-69. March 21, 2000.
15. Rules of Court, Rule 113, Section 5

LAWS CITED:

1. Section 21 of Republic Act No. 9165 (The Comprehensive

Dangerous Drugs Act of 2002)
2. Section 21(a) of the Implementing Rules of Republic Act No.
9165
3. Republic Act No. 7438 (An Act Defining Certain Rights Of Person
Arrested, Detained Or Under Custodial Investigation As Well As The
Duties Of The Arresting, Detaining And Investigating Officers, And
Providing Penalties For Violations Thereof)

V. Prayer…................................................. 33

APPENDIX “A” Decision

 REPUBLIC OF THE PHILIPPINES

2|Page
 COURT OF APPEALS
MANILA 
 
 
PEOPLE OF THE PHILIPPINES,
                    Plaintiff-Appellee,
 
             -versus-                      CA-G.R. CR NO. HC-04084

NUKTAR CUEVAS AND HAKIM

AMIL,
Accused-Appellants.
x-------------------------x
 
 
BRIEF FOR THE ACCUSED-APPELLANTS
 
 
ASSIGNMENT OF ERRORS
 
I
 
THE COURT A QUO GRAVELY ERRED IN NOT
FINDING THE WARRANTLESS ARREST OF
THE ACCUSED-APPELLANTS AS ILLEGAL.

II

THE COURT A QUO GRAVELY ERRED IN NOT

FINDING THE ACCUSED-APPELLANTS’
RIGHTS UNDER REPUBLIC ACT NO. 7438 (AN
ACT DEFINING CERTAIN RIGHTS OF PERSON
ARRESTED, DETAINED OR UNDER
CUSTODIAL INVESTIGATION AS WELL AS
THE DUTIES OF THE ARRESTING, DETAINING
AND INVESTIGATING OFFICERS, AND
PROVIDING PENALTIES FOR VIOLATIONS
THEREOF) WERE VIOLATED.
 
III

THE COURT A QUO GRAVELY ERRED IN

GIVING WEIGHT AND CREDENCE TO THE
MATERIALLY INCONSISTENT AND
INCREDIBLE TESTIMONIES OF THE
PROSECUTION WITNESSES.
3|Page
 IV

THE COURT A QUO GRAVELY ERRED IN

CONVICTING THE ACCUSED-APPELLANT
DESPITE THE PROSECUTION’S FAILURE TO
PROVE THE ELEMENTS OF THE CRIME
CHARGED.

V
 
THE COURT A QUO GRAVELY ERRED IN
FINDING THE ACCUSED-APPELLANT GUILTY
DESPITE THE ARRESTING OFFICERS’ NON-
COMPLIANCE WITH SECTION 21 OF
REPUBLIC ACT NO. 9165 AND ITS
IMPLEMENTING RULES AND REGULATIONS.

STATEMENT OF THE CASE

ACCUSED NUKTAR CUEVAS and HAKIM AMIL stand

charged of Violation of Section 26, par. B, in relation to Section 5,

Article II of R.A. No. 9165 in an Information, the accusatory

portion of which reads:

“That on or about the 28th day of

October 2003, in the City of Marikina,
Philippines and within the jurisdiction of this
Honorable Court, the above-named accused,
without being authorized by law, did then
and there willfully, unlawfully, feloniously and
in conspiracy with each other, knowingly sell
to one PO1 SATURNINO B. MAYONTE as
poseur buyer 48.51 grams
methylamphetamine hydrochloride (shabu), a
dangerous drug in violation of the above-
cited law.
CONTRARY TO LAW.”

4|Page
 When arraigned on 18 November 2003, both accused

assisted by counsel de officio, pleaded NOT GUILTY.

After trial, the Regional Trial Court of Marikina City, Branch

272, rendered a decision dated 02 June 2009, the dispositive

portion of which reads:

“WHEREFORE, in view of all the

foregoing, judgment is hereby rendered
finding accused NUKTAR CUEVAS y LUKMAN
and HAKIM AMIL y BALAJI in the above
entitled case, GUILTY beyond reasonable
doubt of violation of Section 26, paragraph
[b], in relation to Section 5, Article II of R.A.
No. 9165 and hereby sentences them to
suffer the penalty of LIFE IMPRISONMENT
and FINE of Five Hundred Thousand
(P500,000.00) Pesos each, without subsidiary
imprisonment in case of insolvency.

The period during which the herein

accused were in detention during the
pendency of this case shall be credited to
them in full provided that they agree to abide
by and comply with the rules and regulations
of the City Jail of Marikina.

The shabu with a total weight of 48.51

grams subject of the above-captioned case is
hereby confiscated in favor of the
government. The Branch Clerk of Court, Atty.
Selca M. Foja-Galicia is directed to cause the
immediate delivery and transportation
thereof to the Philippine Drug Enforcement
Agency (PDEA) for proper disposition in
accordance with law.

Let a copy of this Decision be furnished

the Director of the Philippine Drug
Enforcement Agency (PDEA), the National
Police Commission (NAPOLCOM) and the
office of the Vice-Mayor of Marikina City.

5|Page
 SO ORDERED.”

A copy of the decision is hereto attached as Appendix “A.”

On 11 June 2009, both accused filed a motion for

reconsideration. However, these were denied for lack of merit in

an Order dated 30 July 2009.

Hence, this appeal.

STATEMENT OF THE FACTS

 

EVIDENCE FOR THE PROSECUTION:

P/Insp. JONATHAN PAAC PABLITO, a Forensic Chemical

Officer assigned at the PNP Crime Laboratory, Camp Crame,

Quezon City, received a letter request, dated 28 October 2003,

for him to conduct an examination on a certain specimen.

After receiving the request, he made an entry in their log

book and inspected if the specimen was the subject of the

request.

He then subjected the specimen to quantitative and

qualitative examinations and confirmed it to be positive for the

presence of shabu.

Pablito, however, only examined a representative sample of

around .5 to 1 gram of the subject specimen. Thus, he was not

6|Page
sure if the 47.51 grams of specimen submitted to him for

examination was one hundred (100%) percent pure shabu.1

On 28 October 2003, at around 10:00 o’clock in the

morning, PO1 SATURNINO MAYONTE, a police officer assigned

at the Philippine Drug Enforcement Agency (PDEA), Metro Manila

Regional Office Special Enforcement Group, saw a confidential

agent arrived at their office in Camp Crame, Quezon City. The

latter proceeded to talk to P/Sr. Insp. Darwin Butuyan.

The informant told P/Sr. Insp. Butuyan that a certain alias

Bonjing and K were peddling shabu.

The officers informed P/Insp. Romualdo Iglesia about the

alleged drug peddling activities of the two accused. P/Insp.

Iglesia thus immediately instructed P/Sr. Insp. Butuyan to form a

team to conduct a buy-bust operation.

A team was formed and PO1 Mayonte was designated as the

poseur buyer.

PO1 Mayonte was provided with two (2) pieces of 100 peso

bills and boodle money to be used as buy-bust money. He then

prepared a bundle that appeared like One Hundred Thousand

Pesos (PhP100,000.00) to be used in buying fifty (50) grams of

shabu.

1
TSN, 14 June 2004
7|Page
 A briefing was conducted and at around 1:30 o’clock p.m.,

they proceeded to Marikina Tactical Operation Center to

coordinate their buy-bust operation.

After coordinating with the Marikina Police, PO1 Mayonte

together with his team proceeded to No. 88 Mary Mount Street,

Provident Village, Marikina City. PO1 Mayonte and the confidential

informant waited at the given location and after a few minutes,

the accused arrived on board a tricycle.

The confidential agent introduced PO1 Mayonte to the two

(2) accused. Upon introduction, Bonjing allegedly asked PO1

Mayonte if he has the money. PO1 Mayonte confirmed that he

has the money and invited the two (2) accused to board their

van. The two accused boarded the van and once inside, Bonjing

told PO1 Mayonte to give the money to K. After PO1 Mayonte

handed over the money, Bonjing gave him a plastic sachet

containing white crystalline substance.

After PO1 Mayonte received the plastic sachet, he executed

the pre-arranged signal and introduced himself as a PDEA agent.

He then arrested both the accused while the other police officers

arrived to give assistance.

After the arrest, they dropped by at the barangay hall where

the alleged confiscated shabu was marked.2

2
TSN, 8 August 2006.
8|Page
 PO1 Mayonte, however, changed his testimony by denying

that they dropped by at the barangay hall and that there was no

inventory of the confiscated evidence ever prepared.3

On cross-examination, PO1 Mayonte admitted that there

were no blotter entries made as regards the marked money used,

as well as the buy-bust operation itself.4

On 28 October 2003, at around 10:00 o’clock in the

morning, PO3 ELMER SARAMPOTE, assigned at the Anti-Illegal

Drugs Special Operations Unit III, Camp Crame, Quezon City,

saw an informant arrived at their office and talked to P/Sr. Insp.

Butuyan.

P/Sr. Insp. Butuyan relayed the information to Chief

Inspector Iglesia that a certain Bonjing and K were peddling fifty

(50) grams of shabu. Chief Inspector Iglesia immediately

instructed P/Sr. Insp. Butuyan to form a team and conduct a

surveillance operation.5

During the briefing, PO1 Mayonte was designated as the

team leader and poseur buyer while he (PO3 Sarampote) was

designated as the arresting officer and the rest of the officers will

be perimeter back-up.6

3
TSN, 30 July 2007.
4
TSN, 26 November 2007, p. 5.
5
TSN, 29 April 2008, p. 10.
6
Id. P. 14.
9|Page
 After the briefing, their team proceeded to the Marikina

Police Station for coordination. An hour thereafter, a call was

received by the confidential agent informing them that the

transaction will take place in Provident Village, Marikina City.

They immediately went to the area and parked their vehicle

at a distance of around 200-300 meters away from that of PO1

Mayonte whose vehicle was parked in front of No. 88 Mary Mount

Street, Provident Village, Marikina City.

After several minutes, he noticed that the hazard lights of

PO1 Mayonte’s care were turned on, thus, his team immediately

approached the said vehicle and introduced themselves as PDEA

operatives. He then went inside the van and arrested one of the

accused from whom he recovered the alleged boodle money.7

EVIDENCE FOR THE DEFENSE:

On 27 October 2003 at around 11:00 o’clock in the morning,

NUKTAR CUEVAS together with his co-accused, Hakim Amil,

were about to go inside Sta Lucia Mall in Marikina City to buy

things that he will use for playing billiards when he go abroad to

work.

They were not able to enter the mall because three (3) male

persons wearing civilian clothes approached them, held their

shoulders and poked their guns at the side of their body.

7
TSN, 29 April 2008.
10 | P a g e
 Two (2) of the armed persons escorted the two (2) accused

towards Marcos Highway and they were told not to make any bad

move. A Toyota Corolla car arrived and they were ordered to

board and were blindfolded.

The two (2) accused were driven around and learned that

they were brought inside a subdivision when their blindfolds were

removed. The two (2) accused were then asked by their

abductors if they can afford five hundred thousand pesos. Cuevas

inquired if it was a kidnap for ransom. Unfortunately, one of the

abductors got mad and hit him on the nape.

The two (2) accused were then brought out of the

subdivision and were driven around for about an hour (1). While

they were driving around, their abductors asked for the telephone

numbers of their parents so that they will be the ones to call

them, he however refused to give the telephone number and told

them that his parents are not in Metro Manila. They were brought

to Camp Crame compound in Quezon City and were ordered to

alight at a waiting shed near the grandstand inside the camp.

They were again asked to produce the money, otherwise

they will be the ones to produce evidence against them. Cuevas

told them that they do not have that amount of money. They

proceeded to a house near the waiting shed and saw other

persons inside the house who were also in civilian clothes. Their

11 | P a g e
names were asked and later they were given food and a stick of

cigarette.

After eating, they were brought outside and the demand for

Five Hundred Thousand Pesos (PhP500,000.00) was repeated to

them, as well as the telephone number of their parents. The

accused told their abductors that they cannot produce such

amount of money so they were brought to another house inside

the camp where they were handcuffed to an air-condition unit.

The accused while they were inside the room heard a person

from the other room telling their abductors not to bring them

there because they do not want to be implicated or involved in

their activities.

The accused were then brought back again to the rest house

where they were locked in a small air-conditioned room and left

to stay there overnight.

The following day, they were asked again if they can

produce the money. Hearing no answer, the two were brought to

the Marikina City Jail.

After one (1) week, PO3 Sarampote returned and asked

Nuktar if he was able to contact his parents. When he answered

that he was not able to contact his parents, PO3 Sarampote

handed to him a piece of paper where a name of a female and

12 | P a g e
contact number was listed. He told the accused that once he has

the money, all he has to do is to call the woman.

The accused did not call the woman. However, the latter

made a visit after a month and mentioned the name of

Sarampote and asked him for his decision. He told the woman

that he does not have the money so the woman left and never

returned.

The two (2) accused later learned that they were being

charged of selling illegal drugs when they asked for their inquest

documents from the Bureau of Jail Management and Penology.8

ARGUMENTS

In Support of the First and Second Assigned Errors:

I
 
THE COURT A QUO GRAVELY ERRED IN NOT
FINDING THE WARRANTLESS ARREST OF
THE ACCUSED-APPELLANTS AS ILLEGAL.

II

THE COURT A QUO GRAVELY ERRED IN NOT

FINDING THE ACCUSED-APPELLANTS’
RIGHTS UNDER REPUBLIC ACT NO. 7438 (AN
ACT DEFINING CERTAIN RIGHTS OF PERSON
ARRESTED, DETAINED OR UNDER
CUSTODIAL INVESTIGATION AS WELL AS
THE DUTIES OF THE ARRESTING, DETAINING
AND INVESTIGATING OFFICERS, AND
PROVIDING PENALTIES FOR VIOLATIONS
THEREOF) WERE VIOLATED.
8
TSN, 3 November 2008
13 | P a g e
 Accused-appellants beg leave to discuss the first and second

errors jointly for being interrelated.

 The court a quo erred in not finding that the accused-

appellants’ warrantless arrest was illegal.

As a rule, an arrest is considered legitimate if effected with a

valid warrant of arrest. The Rules of Court, however, recognizes

permissible warrantless arrests. Thus, a peace officer or a private

person may, without warrant, arrest a person: (a) when, in his

presence, the person to be arrested has committed, is actually

committing, or is attempting to commit an offense (arrest in

flagrante delicto); (b) when an offense has just been committed

and he has probable cause to believe based on personal

knowledge of facts or circumstances that the person to be

arrested has committed it (arrest effected in hot pursuit); and (c)

when the person to be arrested is a prisoner who has escaped

from a penal establishment or a place where he is serving final

judgment or is temporarily confined while his case is pending, or

has escaped while being transferred from one confinement to

another (arrest of escaped prisoners).9

In this case, none of the above circumstances was present.

The accused-appellants were about to enter Sta Lucia Mall to buy

9
People v. Chua Ho San, supra.; citing Terry v. Ohio, 20 L Ed 2d, 896 adopted in Posadas v. Court of Appeals, 188
SCRA 288 [1990]; and People v. Ramos, 222 SCRA 557 [1993].
14 | P a g e
billiards accessories when they were abducted by the police

officers.

The prosecution likewise failed to show evidence that would

warrant or prove that a legitimate operation was conducted by

the police officers.

At the onset, there was no blotter that would support the

testimony of the prosecution witnesses that a confidential agent

arrived in their office in Camp Crame, Quezon City to report the

alleged illegal activities of the accused-appellants.

“Court: I am sure the arrival of the

confidential informant is such important that
of course you entered it in the police blotter?
Did you enter that matter in the police
blotter?

Witness: No more, your Honor.

Court: Is it not a standard operating

procedure in your office?

Witness: It was not placed in the blotter

your Honor. We did not blotter it because we
want to check the veracity of the information,
your Honor.”10

The shortcomings of the team who conducted the alleged

buy-bust operation against the accused-appellants was further

bolstered by their failure to prepare pre-operation report, as well

as their failure to enter in the blotter the marked money to be

used in the operation.

10
TSN, 29 April 2008, p. 8.
15 | P a g e
 “Pros. Paet: Did you prepare pre-
operational report with regard to this
matter?

Witness: None sir.”11

This further goes on up to the coordination with the local

police of Marikina wherein the prosecution likewise failed to

produce a copy of the coordination letter.

“Atty. Lauron: In this case, you served

it personally to the Duty Officer at DTOC?

Witness: Yes, Ma’am.

Atty. Lauron: Of course you have a

receiving copy?

Witness: It is not in my possession,

ma’am.”12

The coordination letter was never presented by the

prosecution nor was it part of the offered documentary evidence.

During the alleged buy-bust operation, the prosecution also

failed to show or prove the presence of any inventory of

confiscated illegal drug. In fact, prosecution witness, PO1

Mayonte testified that there was no inventory prepared and that

the alleged shabu recovered was never photographed.

“Q. Mr. witness, are you trying to tell us

that because of that follow up operations of
yours, you were not able to eventually drop
by the barangay and prepare or make an
inventory of the confiscated seized items?

11
Id., p. 19.
12
Id., p. 37.
16 | P a g e
 A. Yes sir.”13

The testimony of PO1 Mayonte as regards to the non-

existence of an inventory is corroborated by PO3 Sarampote.

“Pros. Paet: Did you prepare any inventory

of the physical evidence?

Witness: We prepared it but we could

not find anyone to witness, so it was not
included in the papers made, sir.

Pros. Paet: How about the picture of that

drug?

Witness: None sir. Because according

to them the picture will follow.”14

Clearly, the prosecution miserably failed to support its

allegation that there was a legitimate buy-bust operation. They

failed to present any evidence to support their claims other than

the police officers’ self-serving statements.

Taking into consideration all the above, it is clear that the

arrest of the accused-appellants was illegal. The accused-

appellants did not commit any crime that will warrant their arrest.

The prosecution failed to present any physical or circumstantial

evidence that would support their theory of a legitimate buy-bust

operation.

Furthermore, when the accused-appellants were already at

Camp Crame, they were never provided with a counsel during the

13
TSN, 30 July 2007, p. 3.
14
TSN, 29 April 2008, p. 32
17 | P a g e
investigation in violation of their rights under Republic Act No.

7438.15

Nothing in the records would suggest that the accused-

appellants were apprised of their constitutional rights nor were

they informed of the crime they committed. The police officers

never informed them of their other rights under Sections 2 and 3

of Republic Act No. 7438, viz:

 
“(1) Right to have the written custodial
investigation report explained to him by
his counsel or by the assisting counsel
provided by the investigating officer in the
language or dialect known to him,
otherwise, such investigation report shall
be null and void and of no effect
whatsoever.
 
(2) Right to have his extra-judicial
confession reduced in writing and signed
by him in the presence of his counsel or in
case of a valid waiver, in the presence of
his parent/s, elder brothers and sisters,
wife, the municipal mayor, the municipal
judge, district school supervisor, or priest
or minister of the gospel as chosen by
him; otherwise, it shall be inadmissible as
evidence in any proceeding.
 
(3) Right to visits or conferences with
any member of his immediate family, or
any medical doctor or priest or religious
minister chosen by him or by any member
of his immediate family or by his counsel,
or by any national non-governmental
organization duly accredited by the
Commission on Human Rights or by any
international non-governmental
15
An Act Defining Certain Rights of Person Arrested, Detained or Under Custodial Investigation as Well as the
Duties of the Arresting, Detaining and Investigating officers, and Providing Penalties For Violations thereof.
18 | P a g e
 organization duly accredited by the Office
of the President.
 
(4) In the absence of his lawyer, no
custodial investigation shall be conducted
and he can only be detained by the
investigating officer in accordance with the
provisions of Article 125 of the Revised
Penal Code.”
 
 
In the case at bar, the court a quo did not rule upon such

obvious non-compliance with Republic Act No. 7438, to the

accused-appellants’ prejudice.

In Support of the Third Assigned Error:

III

THE COURT A QUO GRAVELY ERRED IN

GIVING WEIGHT AND CREDENCE TO THE
MATERIALLY INCONSISTENT AND
INCREDIBLE TESTIMONIES OF THE
PROSECUTION WITNESSES.

PO1 Mayonte testified that it was the second time that the

confidential informant had volunteered information to them

regarding drug transactions.16 However, despite personal

knowledge of the identity of the confidential agent, being with

him all throughout the alleged buy-bust operation, he testified on

16
TSN, 8 August 2006, p. 5.
19 | P a g e
cross-examination that it was his first time to meet the

confidential informant.17

The testimonies of the prosecution witnesses are

contradictory on almost all parts of the alleged buy-bust

operation, which is a clear indication that there was indeed no

legitimate buy-bust operation conducted against the accused-

appellants.

PO1 Mayonte testified that the team leader of the alleged

buy-bust operation was P/Sr. Insp. Batuyan.18 This was however

this was contradicted by PO3 Saramponte that PO1 Mayonte was

their team leader.19

In addition, PO3 Sarampote testified that his vehicle was

parked at a distance of around Two Hundred (200) to Three

Hundred (300) meters away from that of PO1 Mayonte. 20 On the

other hand, PO1 Mayonte testified that the vehicle of PO3

Sarampote was parked in an alley perpendicular to where he was

parked and was around 30-50 meters away.21

PO1 Mayonte also testified that after the alleged buy-bust

operation, he together with his team, went to the barangay hall

of Provident Village and prepared the inventory of seized drugs. 22

He was familiar with the location of the barangay hall because

17
TSN, 26 November 2007, p. 3 & 9.
18
TSN, 8 August 2006, p. 6.
19
TSN, 29 April 2008, p. 14.
20
Id., p. 25-26.
21
TSN, 8 August 2006, p. 15.
22
Id., p. 25.
20 | P a g e
they usually pass by it on their way home.23 On cross-

examination, however, he testified that he does not know where

the barangay hall is located because he is not familiar with the

location.24

It should also be noted that the alleged shabu was

recovered from accused-appellant Hakim Amil when the arrest

was effected.25 This alone proved that the alleged shabu was still

in the possession of one (1) of the accused-appellants, thus, the

buy-bust operation was not consummated. Assuming, that an

entrapment operation was actually conducted, the accused-

appellants cannot be convicted for sale of illegal drugs, since

because there was no change of hand yet and the elements of

sale is as it is still incomplete.

The account given by PO1 Mayonte as regards the actual

buy-bust operation was also highly improbable and contrary to

human experience. According to PO1 Mayonte, he together with

the confidential informant and accused-appellants boarded their

van where he occupied the driver’s seat, the confidential

informant took the front passenger’s seat and the accused-

appellants were seated behind them.

Considering the large quantity and amount of money

involved in the alleged transaction, it would be very risky for the

23
Id., p. 23.
24
TSN, 30 July 2007, p. 3.
25
TSN, 8 August 2006, p. 22.
21 | P a g e
poseur buyer to conduct the buy-bust operation inside the van

where the actions of the accused-appellants cannot be observed

by the perimeter and backup police officers, thus putting the life

of the poseur buyer at risk.

In addition, it is also worth noting that PO1 Mayonte

practically has his back against the accused-appellants during the

alleged buy-bust operation. PO1 Mayonte was in the said position

when he gave the boodle money to the accused-appellants,

received the alleged shabu and declared that he is a member of

PDEA.26

PO1 Mayonte was in a very awkward and defenseless

position where the accused-appellants could have easily inflicted

bodily harm upon him and took him as hostage. It is

unimaginable that the accused-appellants where unarmed at the

time considering the large volume of shabu that they were about

to sell.

It is also hard to believe that accused-appellant, Hakim Amil,

held the envelope containing the money for at least ten (10)

seconds and never attempted to open it.27

PO1 Mayonte admitted that it was his first time to transact

with the accused-appellants. In spite of this, he is trying to

impress that the accused-appellants were so naive that they

26
Id., pp. 17-18.
27
Id., p. 19.
22 | P a g e
trusted him too much that they did not even bother to check the

money.28 It is worth noting that the alleged transaction involved

50 grams of shabu, which was being sold for PhP100,000.00. The

volume alone indicates that the accused-appellants are not new

in the business of selling drugs, a clear indication that they are

very much aware how thick ten (10) bundles of One Hundred

(100) peso bill is. In fact, ten (10) bundles of One Hundred (100)

pesos will not fit inside a windowed white envelope. This fact

alone will raise suspicion on the part of the accused-appellants.

In Support of the Fourth and Fifth Assigned Errors:

IV

THE COURT A QUO GRAVELY ERRED IN

CONVICTING THE ACCUSED-APPELLANTS
DESPITE THE PROSECUTION’S FAILURE TO
PROVE THE ELEMENTS OF THE CRIME
CHARGED.

V
 
THE COURT A QUO GRAVELY ERRED IN
FINDING THE ACCUSED-APPELLANTS GUILTY
DESPITE THE ARRESTING OFFICERS’ NON-
COMPLIANCE WITH SECTION 21 OF
REPUBLIC ACT NO. 9165 AND ITS
IMPLEMENTING RULES AND REGULATIONS.

Accused-appellants beg leave to discuss the forth and fifth

assigned errors jointly for being interrelated.

28
Id., p. 6.
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 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. 29 Proof of the

corpus delicti in a buy-bust situation requires evidence, not only

that the transacted drugs actually exist, but evidence as well that

the drugs seized and examined are the same ones presented in

court. This is a condition sine qua non for conviction as the drugs

are the main subject of the illegal sale constituting the crime and

their existence and identification must be proven for the crime to

exist. As here in below discussed, the special characteristics of

prohibited drugs necessitate their strict identification by the

prosecution.30

In the case at bar, records would show that the court a quo

failed to consider the following infirmities in the prosecution’s

case: (1) the serious lapses in the procedure as mandated in R.A.

No. 9165, committed by the buy-bust team in the handling of the

seized shabu; and (2) the failure of the police to comply with the

chain of custody rule in the handling of the seized shabu,

resulting in the prosecution’s failure to properly identify the shabu

offered in court as the same drug seized from the accused-

appellants on 28 October 2003.

29
People v. Robles, G.R. No. 177220, April 24, 2009.
30
Id.
24 | P a g e
 In People v. Garcia,31 the High Court emphasized that it is

the prosecution’s duty to adduce evidence proving compliance by

the buy-bust team with the prescribed procedure laid down under

paragraph 1, Section 21, Article II of R.A. No. 9165, which reads:

“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]

The Implementing Rules and Regulations of Section 21(a) of

R.A. No. 9165 further provide details on how the law is to be

applied. It likewise provide for a saving mechanism in case of non

compliance with the strict requirements of the law. It reads:

“(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, further that non-
compliance with these requirements
31
G.R. No. 173480, February 25, 2009.
25 | P a g e
 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.]

Strict compliance with the prescribed procedure is required

because of the illegal drug’s unique characteristic rendering it

indistinct, not readily identifiable, and easily open to tampering,

alteration or substitution either by accident or otherwise. 32 Hence,

the rules on the measures to be observed during and after its

seizure, during the custody and transfer of the drugs for

examination, and at all times up to their presentation in court.

In this case, no inventory was prepared. Neither was a

photograph taken of the alleged shabu recovered from the

accused-appellants in their presence or of their representative.

Neither was there 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.

Furthermore, nowhere in the testimonies of the arresting

officers was it found that justifiable grounds existed that would

excuse non-compliance with the implementing rules.

32
People v. Robles; supra note 16.
26 | P a g e
 Following the rule that penal laws shall be construed strictly

against the government, and liberally in favor of the accused, the

apprehending team’s omission to observe the procedure outlined

by R.A. 9165 in the custody and disposition of the seized drugs

significantly impairs the prosecution’s case.33 (emphasis supplied)

Moreover, granting arguendo that the accused-appellants

were in possession of the shabu, it could not be said that there

was an unbroken chain of custody.

It bears emphasis that PO1 Mayonte admitted that he has

no recollection as to where he was when he put the initials on the

alleged recovered shabu. He initially stated that they went to the

barangay hall to prepare the inventory of seized evidence and put

markings on it.34 On cross-examination however, he testified that

he did not go to the barangay hall because he was not familiar

with the location.35 In fact, the alleged shabu was never marked

or photograph at the place where it was alleged to have been

seized as testified to by PO1 Mayonte.36 Thus, this obvious lapse

casts doubt on the integrity of the chain of custody.

Consequently, there is here a clear and outright disregard of the

rights of the accused-appellants, as well as in the proper

procedure in the handling and custody of the seized drugs.

33
People v. Ranilo De La Cruz, G.R. No. 177222, October 29, 2008.
34
TSN, 8 August 2006, p. 25.
35
TSN, 30 July 2007, p. 3.

36
TSN, 8 August 2006, pp. 22-23.
27 | P a g e
 The prosecution also failed to identify who transported the

alleged shabu from the place where it was seized up to the crime

lab. In fact, the prosecution failed to show the succeeding events

after the alleged buy-bust. There is nothing on record that would

show as to where the alleged shabu and the accused-appellants

were brought after the operation. Were the accused-appellants

and the recovered shabu brought to the police station? Who

transported the shabu from the scene of the operation up to the

police station? Were the accused-appellants subjected to

investigation and inquest procedure? The prosecution failed to

account for all of these events which have a direct effect on the

chain of custody of the alleged shabu. The prosecution thus failed

to show the chain of custody from Provident Village in Marikina

City up to the crime laboratory and back to the Regional Trial

Court.

From the foregoing, it cannot be ascertained that the plastic

shabu allegedly recovered from the accused-appellants was the

same one tested by PI Paac and presented in court.

In sum, the testimony of all the police officers failed to show

how the integrity and evidentiary value of the items seized had

been preserved; no explanation was ever given by PO1 Mayonte

or PO3 Saramponte to justify the non-compliance by the buy-

bust team with the prescribed procedures. In fact, the records

28 | P a g e
clearly reveal that they did not put the markings at the scene of

the alleged buy-bust operation and that the prosecution did not

even acknowledge the procedural lapses committed by the buy-

bust team in the handling of the alleged seized shabu.

The consequences of the above omissions for the

prosecution is grave, under the rule that penal laws, such as R.A.

No. 9165, are strictly construed against the government and

liberally in favor of the accused.37 One consequence of this is to

produce doubts on the origin of the illegal drugs presented in

court,38 thus leading to the prosecution’s failure to establish the

corpus delicti.39 Unless excused by the saving clause of R.A. No.

9165, the acquittal of the accused must follow.

Moreover, the prosecution was also remiss in establishing an

unbroken link in the chain of custody of the seized shabu; its

evidence is simply incomplete in establishing the necessary links

in the handling of the seized prohibited drug from the time of its

seizure until its presentation in court.

In Mallillin v. People,40 the Supreme Court explained the

chain of custody rule and what constitutes sufficient compliance

therewith, viz:

37
People v. De la Cruz, G.R. No. 177222, October 29, 2008, 570 SCRA 273, 285.
38
People v. Garcia; supra note 19; People v. De la Cruz; supra note 22, at 286; People v. Dela Cruz, G.R. No. 181545,
October 8, 2008, 568 SCRA 273, 284; People v. Santos, Jr., G.R. No. 175593, October 17, 2007, 536 SCRA 489, 504;
People v. Nazareno, G.R. No. 174771, September 11, 2007, 532 SCRA 630, 641; and People v. Orteza, G.R. No.
173051, July 31, 2007, 528 SCRA 750, 758-759.
39
People v. Orteza, et al; supra note 23, at 758-759.
40
G.R. No. 172953, April 30, 2008
29 | P a g e
 “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 witnesses' 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.”41

In People v. Garcia,42 People v. Gum-Oyen,43 People v.

Denoman44 and People v. Coreche,45 it was likewise recognized

that the following links must be established in the chain of

custody in a buy-bust situation: 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,

41
Id.
42
Supra note 19.
43
G.R. No. 182231, April 16, 2009.
44
G.R. No. 171732, August 14, 2009.
45
G.R. No. 182528, August 14, 2009.
30 | P a g e
the turnover and submission of the marked illegal drug seized

from the forensic chemist to the court.

In the present case, the chain of custody of the alleged

illegal drugs from PO1 Mayonte to the crime laboratory and up to

the Regional Trial Court was broken, in view of the fact (as above

discussed) that it was impossible to ascertain if this was the same

plastic sachet of shabu recovered during the alleged buy-bust

operation. Hence, there was a clear defect in the chain of

custody.

Given the flagrant procedural lapses committed by the police

officers in the handling of the seized shabu and the obvious

evidentiary gaps in the chain of its custody, the presumption of

regularity in the performance of duties cannot be upheld in this

case. Such presumption is made in the context of an existing rule

of law or statute authorizing the performance of an act or duty or

prescribing a procedure in the performance thereof. The

presumption applies when nothing in the record suggests that the

law enforcers deviated from the standard conduct of official duty

required by law; where the official act is irregular on its face, the

presumption cannot arise.46

PRAYER

46
People v. Obmiranis, G.R. No. 181492, December 16, 2008, 574 SCRA 140, 156.
31 | P a g e
        WHEREFORE, premises considered, it is most respectfully

prayed of this Honorable Court, that the decision of the court a

quo dated 02 June 2009 be REVERSED and SET ASIDE and a

new one be rendered ACQUITTING the accused-appellant of the

crimes charged.

             

Quezon City for Manila

      14 September 2010.

PUBLIC ATTORNEY’S OFFICE

Department of Justice
5/F DOJ Agencies Bldg.
NIA Road cor. East Ave., Diliman
1104, Quezon City
Tel. Nos. 928-91-37 / 927-68-06

By:

AMELIA C. GARCHITORENA
Public Attorney IV
Roll No. 23557
IBP O.R. No. 807438/ 1-6-10
MCLE Compliance No. III-0007649 1-20-10

ABRAHAM C. ONG
Public Attorney III
Roll No. 37920
IBP No. 805136/1-5-10
MCLE Compliance No. III- 0007652/1-20-10

And

ALLAN JULIUS B. AZCUETA

Public Attorney II
32 | P a g e
 Roll No. 54519
IBP No. 810356/1-08-10-Ilocos Sur
MCLE Compliance No. III – 0007321/1-08-10

EXPLANATION
(Pursuant to Section 11, Rule 13
Of the 1997 New Rules of Civil Procedure)
 
             
The foregoing Brief for the Accused-Appellants is
hereby served by registered mail, personal service not being
practicable in view of the limited number of office personnel who
will carry out this mode of service.
 

Allan Julius B. Azcueta

Copy furnished:
 

The Solicitor General   - reg. Receipt no. __________

No. 134 Amorsolo Street,
Legaspi Village, Makati City

33 | P a g e