PEOPLE OF THE PHILIPPINES, Appellee, v.

ROMEO ONIZA Y ONG AND MERCY

ONIZA Y CABARLE, Appellants.

DECISION

ABAD, J.:

This case is about the need to absolve the accused of the charges against them because of the
police officers’ outright failure without any justification to abide by the law governing the
conduct of seizure operations involving dangerous drugs.

The Facts and the Case

On June 21, 2004 the Public Prosecutors Office of Rizal filed separate charges of possession of
dangerous drugs1 before the Regional Trial Court (RTC) of Rizal, Branch 2, against the accused
spouses Romeo in Criminal Case 7598 and Mercy Oniza in Criminal Case 7599. The prosecution
further charged the spouses with selling dangerous drugs in Criminal Case 7600, all allegedly in
violation of the Dangerous Drugs Act.

The prosecution’s version is that at about 9:30 p.m. on June 16, 2004, PO1 Reynaldo M.
Albarico, PO1 Fortunato P. Jiro III, and PO1 Jose Gordon Antonio of the Rodriguez Police
Station in Rizal received information from a police asset that accused Mercy Oniza was selling
dangerous drugs at Phase 1-D Kasiglahan Village, Barangay San Jose.2 They immediately
formed a team to conduct a buy-bust operation. After coordinating its action with the Philippine
Drug Enforcement Agency, the police team proceeded to Kasiglahan Village on board an owner-
type jeep. They brought with them two pieces of pre-marked P100 bills.3

On arrival at the place, the team members positioned themselves at about 15 to 20 meters from
where they spotted Mercy Oniza and a male companion, later identified as her accused husband
Romeo Oniza. The police informant approached Mercy and initiated the purchase. 4 He handed
the two marked P100 bills to her which she in turn gave to Romeo.5 After pocketing the money,
the latter took out a plastic sachet of white crystalline substance from his pocket and gave it to
the informant. The latter then scratched his head as a signal for the police officers to make an
arrest.6

The police officers came out of concealment to arrest Mercy and Romeo.7 On seeing the police
officers, however, the two quickly ran into their house, joined by Valentino Cabarle (separately
charged) who had earlier stood nearby, and locked the door behind them. The officers rammed
the door open to get in. They apprehended Mercy, Romeo, and Valentino.8 Officer Jiro recovered
four heat-sealed plastic sachets believed to contain shabu from Mercy. Officer Albarico retrieved
two marked P100 bills and a similar plastic sachet from Romeo. Officer Antonio seized an
identical sachet from Valentino.9

The police officers brought their three captives to the police station for investigation and
booking. Officer Jiro marked all the items the police seized and had these brought to the
Philippine National Police (PNP) Crime Laboratory for examination.10 After forensic chemical
analysis, the contents of the sachets proved to be shabu.11

The prosecution and the defense stipulated that the specimens that PO1 Annalee R. Forro, a PNP
forensic chemical officer, examined were methamphetamine hydrochloride (shabu). They further
stipulated, however, that Officer Forro “could not testify on the source and origin of the subject
specimens that she had examined.”12 As a result, PO1 Forro did not testify and only her report
was adduced by the prosecution as evidence.

The evidence for the accused shows, on the other hand, that at around 9:30 p.m. on June 16,
2004, the spouses Mercy and Romeo were asleep at their home when Mercy was suddenly
awakened by the voice of Belen Morales calling on her from outside the house. As Mercy peeped
through the window, Belen told her that the police had arrested and mauled Mercy’s brother,
Valentino. Mercy hurriedly ran out of the house to find out what had happened to her brother.13

When Mercy got to where Valentino was, she saw some police officers forcibly getting him into
an owner-type jeep while Zenaida Cabarle, Mercy and Valentino’s mother, kept pulling him out
of the owner-type jeep. When Mercy approached Valentino, the police officers told her to
accompany him to the police station. This prompted her to shout for her husband’s help.14

Meanwhile, when Romeo had awakened, he came out of the house, and saw two police officers
in black jackets, Albarico and Antonio, who approached him. They seized and shoved him into
the owner-type jeep to join Mercy and Valentino. Romeo noticed that Valentino was grimacing in
pain, having been beaten up by the police.15

At the police station, the police officers asked their three captives to produce P30,000.00 in
exchange for their release.16 Officer Antonio took out something from his pocket, showed it to
them, and told them that he would use it to press charges against them. Afterwards, PO1 Antonio
took Mercy to the kitchen room and hit her head with two pieces of pot covers (“pinompyang”).17

Nearly after five years of trial or on April 2, 2009 the RTC rendered a decision18 that found
Romeo and Mercy guilty of possession of dangerous drugs in Criminal Cases 7598 and 7599,
respectively, and imposed on them both the penalty of imprisonment of 12 years and 1 day to 20
years and a fine of P300,000.00. Further, the trial court found them guilty of selling dangerous
drugs in Criminal Case 7600 and imposed on them both the penalty of life imprisonment and a
fine of P500,000.00. The trial court, however, acquitted Valentino of the separate charge of
possession of dangerous drugs filed against him in Criminal Case 7597.

On appeal in CA-G.R. CR-HC 04301, the Court of Appeals (CA) affirmed the judgments of
conviction against Romeo and Mercy, hence, the present appeal to this Court.

Issue Presented

The issue presented in this case is whether or not the prosecution proved beyond reasonable
doubt that Romeo and Mercy were in possession of and were selling dangerous drugs when the
team of police officers arrested them on June 16, 2004.
 Ruling of the Court

The law prescribes certain procedures in keeping custody and disposition of seized dangerous
drugs like the shabu that the police supposedly confiscated from Romeo and Mercy on June 16,
2004. Section 21 of Republic Act (R.A.) 9165 reads:cralavvonlinelawlibrary

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, 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:cralavvonlinelawlibrary

(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; x x x. (Emphasis supplied)

Compliance with the above, especially the required physical inventory and photograph of the
seized drugs in the presence of the accused, the media, and responsible government
functionaries, would be clear evidence that the police had carried out a legitimate buy-bust
operation. Here, the prosecution was unable to adduce such evidence, indicating that the police
officers did not at all comply with prescribed procedures. Worse, they offered no excuse or
explanation at the hearing of the case for their blatant omission of what the law required of them.

Apart from the above, the prosecution carried the burden of establishing the chain of custody of
the dangerous drugs that the police allegedly seized from the accused on the night of June 16,
2004. It should establish the following links in that chain of custody of the confiscated
item: first, the seizure and marking, if practicable, of the illegal drug recovered from the accused
by the apprehending officer; second, the turnover of the illegal drug seized by the apprehending
officer to the investigating officer; third, the turnover by the investigating officer of the illegal
drug to the forensic chemist for laboratory examination; and fourth, the turnover and submission
of the marked illegal drug seized from the forensic chemist to the court.19

Still, jurisprudence has established a rare exception with respect to the first required link—
immediate seizure and marking of the seized items in the presence of the accused and others20—
namely, that (a) there must be justifiable grounds for non-compliance with the procedures; and
(b) the integrity and evidentiary value of the seized items are properly preserved.

Here, the prosecution’s own evidence as recited by the CA and the RTC is that the police officers
did not make a physical inventory of the seized drugs nor did they take a picture of the same in
the presence of the accused, someone in the media, a Department of Justice (DOJ)
representative, and any elected public official.
All that Officer Albarico could say is that his companion, Officer Jiro, marked the plastic sachets
with the initials of the accused already at the police station and then turned over the same to the
desk officer who prepared the Request for Laboratory
Examination.21 Thus:cralavvonlinelawlibrary

Pros. Gonzales : And after that, what, if any, did you do next?

PO1 Albarico : After arresting them, we brought them to our police station, sir.

Pros. Gonzales : And at the station, Mr. Witness, what happened to the items that you said was
[sic] recovered from the possession of accused Romeo?

PO1 Albarico : We have the pieces of evidence blottered, sir.

Pros. Gonzales : And thereafter, what happened to the evidence gathered, Mr. Witness?

PO1 Albarico : PO1 Jiro marked the evidence, sir.

xxxx

Pros. Gonzales : Mr. Witness, those substance[s] that were marked by PO1 Jiro, what happened
to them after the markings?

PO1 Albarico : After marking the pieces of evidence, he turned them over to the Desk Officer
and prepared a request for examination and those were brought to Camp Crame for examination,
sir.

xxxx

Pros. Gonzales : If you know, what was the result of the request for examination?

PO1 Albarico : As far as we know, it is positive for methamphetamine hydrochloride, sir.

Yet, the police officers did not bother to offer any sort of reason or justification for their failure to
make an inventory and take pictures of the drugs immediately after their seizure in the presence
of the accused and the other persons designated by the law. Both the RTC and the CA
misapprehended the significance of such omission. It is imperative for the prosecution to
establish a justifiable cause for non-compliance with the procedural requirements set by
law.22 The procedures outlined in Section 21 of R.A. 9165 are not merely empty formalities—
these are safeguards against abuse,23 the most notorious of which is its use as a tool for
extortion.24

And what is the prosecution’s evidence that the substances, which the police chemist examined
and found to be shabu, were the same substances that the police officers allegedly seized from
Romeo and Mercy? No such evidence exists. As pointed out above, the prosecution stipulated
with the accused that the police chemist “could not testify on the source and origin of the subject
specimens that she had examined.” No police officer testified out of personal knowledge that the
substances given to the police chemist and examined by her were the very same substances
seized from the accused.

In regard to the required presence of representatives from the DOJ and the media and an elective
official, the prosecution also did not bother to offer any justification, even a hollow one, for
failing to comply with such requirement. What is more, the police officers could have easily
coordinated with any elected barangay official in the conduct of the police operation in the
locality.

WHEREFORE, the Court REVERSES and SETS ASIDE the February 23, 2012 Decision of
the Court of Appeals in CA-G.R. CR-HC 04301, which affirmed the April 2, 2009 Decision of
the Regional Trial Court in Criminal Cases 7598, 7599, and 7600 and,
accordingly, ACQUITS the accused-appellants Romeo Oniza y Ong and Mercy Oniza y Cabarle
of the charges against them in those cases on the ground of reasonable doubt.

The National Police Commission is DIRECTED to INVESTIGATE PO1 Reynaldo M.

Albarico, PO1 Fortunato P. Jiro III and PO1 Jose Gordon Antonio for the possible filing of
appropriate charges, if warranted.

The Director of the Bureau of Corrections is ORDERED to immediately RELEASE both the
above accused-appellants from custody unless they are detained for some other lawful cause.

No costs.

SO ORDERED.

Velasco, Jr., (Chairperson), Vs. Peralta, Mendoza, and Leonen, JJ., concur.

+++++++++++++++

SECOND DIVISION

PEOPLE OF THE PHILIPPINES, G.R. No. 199403

Appellee,
Present:
CARPIO, J., Chairperson,
BRION,
- versus - PEREZ,
SERENO, and
REYES, JJ.
GOMER S. CLIMACO, Promulgated:
Appellant. June 13, 2012
x--------------------------------------------------------------x

DECISION

CARPIO, J.:
The Case

This is a consolidated criminal case filed against appellant Gomer S. Climaco (Climaco) for
violation of Sections 5 and 11 of Republic Act No. 9165 (The Comprehensive Dangerous Drugs
Act of 2002) for illegal possession (Criminal Case No. 4911-SPL) and illegal sale (Criminal
Case No. 4912-SPL) of methamphetamine hydrochloride, a dangerous drug.
The Regional Trial Court (RTC) of San Pedro, Laguna, Branch 31, in its Decision dated 20
January 2009 (RTC Decision), found Climaco guilty beyond reasonable doubt of the crime of
illegal possession of methamphetamine hydrochloride, a dangerous drug, and sentenced him to
imprisonment of 12 years and 1 day to 14 years and 8 months with a fine of ₱300,000.00 in
Criminal Case No. 4911-SPL.[1] In Criminal Case No. 4912-SPL, the RTC found Climaco guilty
beyond reasonable doubt of the crime of illegal sale of methamphetamine hydrochloride, and
sentenced him to life imprisonment with a fine of P500,000.00. On appeal, the Special Fifteenth
Division of the Court of Appeals (CA), in its Decision dated 29 March 2011 (CA Decision),
affirmed the RTC Decision.[2]Climaco appealed to this Court by filing a Notice of Appeal in
accordance with Section 3(c), Rule 122 of the Rules of Court.[3]

Prosecutions Version

The prosecutions version of events is summarized in the RTC Decision:[4]

The prosecution presented two (2) witnesses in the persons of PO1 Alaindelon M.
Ignacio, who gave his testimony on 5 January 2005, 8 February 2006 and 2
August 2006; and Forensic Chemist Donna Villa Huelgas, whose testimony was
dispensed with on 5 January 2005 upon defenses admission of the existence of the
following: 1) Written Request for Laboratory Examination as Exhibit A; 2) The
Chemistry Report No. D-1102-04 as Exhibit B; 3) 1 white envelope as Exhibit
C; 4) the existence of two (2) plastic sachets with markings GSC-1 as Exhibit C-1;
and 5) another one with markings GSC-2 as Exhibit C-2.
 PO1 Ignacio testified that he is a member of the Philippine National Police since
15 October 1999 and was assigned at Intelligence Division, San Pedro Municipal
Police Station. As member of the Intelligence Division, he was tasked to conduct
surveillance operation and apprehend persons engaged in illegal drug activity. On
7 September 2004, he was on 24-hour duty at PAC base located at United
Bayanihan, San Pedro, Laguna. At around 6:00 in the evening of the same day,
PO1 Ignacio, SPO3 Samson, SPO4 Balverde, some members of the Laguna
Special Operation Team, Members of the Provincial Intelligence and Investigation
Division conducted a briefing regarding a drug operation against a certain Gomer
Climaco, No. 5 in the drug watch list in San Pedro, Laguna. During the briefing,
PO1 Ignacio was tasked to act as the poseur-buyer and SPO4 Almeda as the
overall team leader. The buy-bust money was prepared, which consist of P500.00
bill and some boodle money. The team was also armed with a Warrant of Arrest
for illegal drugs issued by Judge Pao. After the briefing, the team proceeded to the
target area. When they arrived, PO1 Ignacio saw the suspect standing in front of
his house. The other members of the team strategically positioned
themselves. Since PO1 Ignacio already knew the suspect, PO1 Ignacio just told
Gomer that he would buy shabu. Gomer entered his house and took
something. When he came out, Gomer showed to PO1 Ignacio the shabu. PO1
Ignacio scratched his head to signal the team that item was shown to him and he
would execute the buying of the shabu. After Gomer asked for the money and
PO1 Ignacio gave it to him, SPO3 Samson and the rest of the team immediately
moved in to effect the arrest of the suspect. Since he was caught in the act, Gomer
did not resist anymore. The team likewise showed Gomer his warrant of
arrest. PO1 Ignacio saw SPO3 Samson frisk and ask Gomer to empty his
pockets. SPO3 Samson was able to recover another plastic sachet, which was
inserted between Gomers fingers. The plastic sachet, which was the product of the
buy-bust, and the one recovered from Gomer were turned over to SPO4 Teofilo
Royena, who turned them over to the Office of the Special Operation Group
located at Brgy. Tubigan, Bian, Laguna. The plastic sachet product of the buy-bust
was marked TR-B, which means Teofilo Royena and the letter B means
Bust. While the plastic sachet recovered from Gomer was marked TR-R, which
means Teofilo Royena and the letter R means Recovered. PO1 Ignacio identified
the accused Gomer Climaco in open court. He likewise identified his sworn
statement. During the cross-examination, PO1 Ignacio admitted that he learned of
the warrant of arrest on 7 September 2004 only. It was SPO4 Valverde who
instructed PO Ignacio to conduct surveillance operation against Gomer, who was
engaged in rampant selling of shabu.[5]
Aside from the testimony of PO1 Alaindelon Ignacio (Ignacio), the following documentary
exhibits were offered for the prosecution: (1) Exhibit A Letter dated 7 September 2004; (2)
Exhibit B Chemistry Report No. D-1102-04; (3) Exhibit C One-half white envelope; (4) Exhibit
C-1 Plastic sachet with white crystalline substance with markings GSC-1; (5) Exhibit C-2 Plastic
sachet with white crystalline susbtance with markings GSC-2; and (6) Exhibit D Pinanumpaang
Salaysay of PO1 Ignacio.[6]
 Defenses Version

Appellant Climaco, on the other hand, presented three witnesses and denied the prosecutions
allegations of sale and possession of shabu. The defenses version of the events, as narrated in the
RTC Decision, is as follows:

The defense presented three (3) witnesses in the persons of the accused himself,
Gomer S. Climaco, who testified on 13 May 2008, Michael M. Basihan, who gave
his testimony on 7 October 2008, and Cristina Gamboa Climaco, who gave her
testimony on 25 November 2008.

Gomer S. Climaco testified that prior to 7 September 2004, he did not know SPO2
Wilfredo Samson and PO1 Alaindelon Ignacio. On 7 September 2004, Gomer,
together with his wife and five (5) children, were inside their house. When Gomer
was feeding the chicken in front of his yard, four (4) unidentified armed men
suddenly arrived and frisked him. When nothing was found in his possession, the
men handcuffed and brought him to the police station. At the police station, the
men filed a case against him. Gomer denied having sold and delivered shabu to a
police poseur-buyer and that he was in possesion of shabu. During the cross-
examination, Gomer said that while he was being frisked by the men, Gomer
asked the men what was his violation. The men replied that somebody bought
shabu from him. Gomer told the men that he did nothing wrong, but the men
continued to handcuff him. Gomer was not aware that he was included in the list
of top 20 illegal drug pushers. Gomer did not know of any ill motive on the part of
the police officer why he would be charged with so grave an offense. He did not
file any case against the police officer who arrested him.

Michael M. Basihan testified that Gomer Climaco was his neighbor in Bagong
Silang. On 7 September 2004, Michael went to Gomers manukan to gather guava
fruits. When he arrived there, Gomer was tending to his cocks. While he was
gathering guava fruits, Michael saw four (4) unidentified armed men suddenly
barge into the premises and arrest Gomer. After he was handcuffed, Gomer was
made to board a vehicle where he was brought to Jaka Subdivision. Michael could
not remember whether it was morning or evening when Gomer was arrested by
unidentified armed men because the incident happened a long time ago.

Cristina Gamboa Climaco testified that she is the wife of Gomer Climaco. She did
not know SPO2 Wilfredo Samson and PO1 Alaindelon Ignacio. On 7 September
2004, she was inside their house taking care of her child. At around 3:00 in the
afternoon of the same day, Gomer arrived in their house, who just came from
 Barangay Cuyab. After taking a bath, Gomer went outside of their house. While in
front of their house, Gomer called the person taking care of his chickens. Gomer
and that person went to the back of the house. Meanwhile, Cristina went inside the
house. Although she was inside of the house, Cristina could see Gomer and the
person through the window. At around 4:00 in the afternoon, Cristina saw four (4)
unidentified armed men approach and ask something from Gomer. After a few
minutes, Gomer left the back of the house, while the men were left standing
there. Cristina went out the house and saw her husband go toward the direction of
St. Reymond. At around 6:00 in the evening, Cirstina went down from their house
to ask Michael if he saw Gomer.Michael told Cristina that he saw Gomer loaded
into a van by several men. During the cross-examination, Cristina said that she did
not know of any reason why SPO2 Samson and PO1 Ignacio would arrest her
husband.[7]

The Decision of the Regional Trial Court

The RTC declared Climaco guilty of the crimes of illegal sale and illegal possession of
methamphetamine hydrochloride or shabu, a dangerous drug. The dispositive portion of the RTC
Decision reads:

WHEREFORE, in Criminal Case No. 4912-SPL, the Court finds the accused,
Gomer S. Climaco, GUILTY beyond reasonable doubt of the crime of violation of
Sec. 5 of R.A. 9165, otherwise known as the Comprehensive Dangerous Drugs
Act of 2002, and hereby sentences him to suffer the penalty of life imprisonment
and to pay a fine of ₱500,000.00.

In Criminal Case No. 4911-SPL, the Court finds the accused, Gomer S. Climaco,
GUILTY beyond reasonable doubt of the crime of violation of Sec. 11 of R.A.
9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002, and
sentencing him to suffer imprisonment of twelve (12) years and one (1) day to
fourteen (14) years and eight (8) months and to pay a fine of three hundred
thousand pesos (₱300,000.00).

The Branch Clerk of Court is directed to transmit to the Philippine Drug

Enforcement Agency (PDEA), the plastic sachets subject matter of these cases, for
said agencys appropriate disposition.

SO ORDERED.[8]

The RTC found that the elements for the crimes of illegal sale and illegal possession
of shabu were sufficiently established by the prosecution.[9] The RTC held that Climacos defense
of frame-up is viewed with disfavor as it can be easily concocted. [10] The RTC gave full faith and
credit to the testimony of PO1 Ignacio, and declared the police officers who participated in the
buy-bust operation were properly performing their duties because they were not inspired by any
improper motive.[11]

The Decision of the Court of Appeals

The CA affirmed the conviction of Climaco. The dispositive portion of the CA Decision reads as
follows:

WHEREFORE, the appeal is DENIED and the judgment dated January 20, 2009
of the RTC in Criminal Case Nos. 4911-SPL and 4912-SPL finding appellant
Gomer S. Climaco guilty beyond reasonable doubt of violation of Sections 5 and
11 of Rep. Act No. 9165 is AFFIRMED.[12]

The CA declared that all the elements of the crimes of illegal sale and illegal possession of
dangerous drugs were proven.[13] The CA found that based on the testimony of PO1 Ignacio, it
was established that the chain of custody over the seized drugs was unbroken from the arresting
officers to SPO4 Royena, and then to the forensic chemist for examination.[14]

The Issue

The sole issue in this case is whether the guilt of Climaco for the crimes of illegal sale and
illegal possession of shabu, a dangerous drug, was proven beyond reasonable doubt.

The Ruling of this Court

We resolve to acquit Climaco for the prosecutions failure to prove his guilt beyond reasonable
doubt.

PO1 Ignacio, in his testimony, claimed that the dangerous drugs seized from Climaco were
marked by SPO4 Teofilo Royena as TR-B and TR-R.[15] However, the Chemistry Report
submitted to the trial court shows that the dangerous drugs examined and confirmed to be
methamphetamine hydrochloride or shabu by the forensic chemist were marked as GSC1 and
GSC2.[16] Since what was seized (TR-B and TR-R) by PO1 Ignacio from Climaco at the time of
the buy-bust operation was different from the dangerous drugs submitted (GSC1 and GSC2) to
the forensic chemist for review and evaluation, the chain of custody over the dangerous drugs
was broken and the integrity of the evidence submitted to the trial court was not preserved,
casting doubt on the guilt of Climaco.

Constitutional Presumption of Innocence; Weight of Evidence

The Constitution guarantees the accuseds presumption of innocence until proven guilty. Section
14(2) of the Bill of Rights (Article III) provides that, in all criminal prosecutions, the accused
shall be presumed innocent until the contrary is proved.

Section 2, Rule 133 of the Rules of Court likewise states that, in a criminal case, the accused is
entitled to an acquittal, unless his guilt is proved beyond reasonable doubt. Proof beyond
reasonable doubt does not mean such a degree of proof, excluding possibility of error, which
produces absolute certainty. Only moral certainly is required, or that degree of proof which
produces conviction in an unprejudiced mind.

Chain of Custody Over the Confiscated Items

The elements necessary in every prosecution for the illegal sale of shabu are: (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.[17] Similarly, it is essential that the transaction or sale be proved to have actually
taken place coupled with the presentation in court of evidence of corpus delicti which means the
actual commission by someone of the particular crime charged.[18] The corpus delicti in cases
involving dangerous drugs is the presentation of the dangerous drug itself.

On the other hand, to successfully prosecute a case of illegal possession of dangerous drugs, the
following elements must be established: (1) the accused is in possession of an item or object
which is identified to be a prohibited drug; (2) such possession is not authorized by law; and (3)
the accused freely and consciously possessed the drug.[19]

In both cases of illegal sale and illegal possession of dangerous drugs, the chain of custody over
the dangerous drug must be shown to establish the corpus delicti. In People v. Alcuizar,[20] the
Court held:

The dangerous drug itself, the shabu in this case, constitutes the very corpus
delicti of the offense and in sustaining a conviction under Republic Act No. 9165,
 the identity and integrity of the corpus delicti must definitely be shown to have
been preserved. This requirement necessarily arises from the illegal drugs unique
characteristic that renders it indistinct, not readily identifiable, and easily open to
tampering, alteration or substitution either by accident or otherwise. Thus, 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; otherwise, the
prosecution for possession under Republic Act No. 9165 fails.

Section 1(b) of Dangerous Drugs Board Regulation No. 1, Series of 2002, [21] which implements
the Comprehensive Dangerous Drugs Act of 2002, defines chain of custody as follows:
Chain of Custody means 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. 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.

In Malillin v. People,[22] the Court explained the importance of the chain of custody:

Prosecutions for illegal possession of prohibited drugs necessitates that the

elemental act of possession of a prohibited substance be established with moral
certainty, together with the fact that the same is not authorized by law. The
dangerous drug itself constitutes the very corpus delicti of the offense and the fact
of its existence is vital to a judgment of conviction. Essential therefore in these
cases is that the identity of the prohibited drug be established beyond doubt. Be
that as it may, the mere fact of unauthorized possession will not suffice to create
in a reasonable mind the moral certainty required to sustain a finding of
guilt. More than just the fact of possession, the fact that the substance illegally
possessed in the first place is the same substance offered in court as exhibit must
also be established with the same unwavering exactitude as that requisite to make
a finding of guilt. The chain of custody requirement performs this function in that
it ensures that unnecessary doubts concerning the identity of the evidence are
removed.

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 in evidence, in such a way that every person who touched
the exhibit would describe how and from whom it was received, where it was and
what happened to it while in the witness possession, the condition in which it was
 received and the condition in which it was delivered to the next link in the
chain. These witnesses would then describe the precautions taken to ensure that
there had been no change in the condition of the item and no opportunity for
someone not in the chain to have possession of the same.

While testimony about a perfect chain is not always the standard because it is
almost always impossible to obtain, an unbroken chain of custody becomes
indispensable and essential when the item of real evidence is not distinctive and is
not readily identifiable, or when its condition at the time of testing or trial is
critical, or when a witness has failed to observe its uniqueness. The same standard
likewise obtains in case the evidence is susceptible to alteration, tampering,
contamination and even substitution and exchange. In other words, the exhibits
level of susceptibility to fungibility, alteration or tampering without regard to
whether the same is advertent or otherwise not dictates the level of strictness in
the application of the chain of custody rule.

Indeed, the likelihood of tampering, loss or mistake with respect to an exhibit is

greatest when the exhibit is small and is one that has physical characteristics
fungible in nature and similar in form to substances familiar to people in their
daily lives. Graham v. State positively acknowledged this danger. In that case
where a substance was later analyzed as heroin was handled by two police officers
prior to examination who however did not testify in court on the condition and
whereabouts of the exhibit at the time it was in their possession was excluded
from the prosecution evidence, the court pointing out that the white powder seized
could have been indeed heroin or it could have been sugar or baking powder. It
ruled that unless the state can show by records or testimony, the continuous
whereabouts of the exhibit at least between the time it came into the posession of
the police officers until it was tested in the laboratory to determine its
composition, testimony of the state as to the laboratorys findings is inadmissible.

A unique characteristic of narcotic substances is that they are not readily

identifiable as in fact they are subject to scientific analysis to determine their
composition and nature. The Court cannot reluctantly close its eyes to the
likelihood or at least the possibility, that at any of the links in the chain of custody
over the same there could have been tampering, alteration or substitution of
substances from other cases by accident or otherwise in which similar evidence
was seized or in which similar evidence was submitted for laboratory
testing. Hence, in authenticating the same, a standard more stringent than that
applied to cases involving objects which are readily identifiable must be applied, a
more exacting standard that entails a chain of custody of the item with sufficient
completeness if only to render it improbable that the original item has either been
exchanged with another or been contaminated or tampered with.

In this case, PO1 Ignacio, in his testimony, claimed that the substances seized from Climaco
during the buy-bust operation were marked as TR-R and TR-B:
 Q: When SPO4 Almeida handed over the items to SPO4 Teofilo Royena, what if
any did SPO4 Royena do with the items?
A: He placed markings on it, maam.

Q: Where were you when he placed the markings?

A: I was present, maam.

Q: Do you know what markings was made?

A: He placed his initials TR which means Teofilo Royena and the letter B which
means bust, maam.

Q: Im showing to you a plastic sachet with the markings TR-B, please go over this
and tell if this is the same item which you confiscated from the accused?
A: Yes, maam. This is the same.

PROS. CASANO: Your Honor, the brown envelope which contains the plastic
sachet has already been marked as Exhibit C, the plastic sachet as Exhibit C-1 and
the markings TR-B as Exhibit C-2 (Continuing).

xxxx

Q: Tell us the markings that was placed?

A: Its TR-R, the R means recovered, maam.

Q: How sure are you that the items marked by SPO4 Teofilo Royena TR-R was
the same item taken by SPO3 Samson from the accused?
A: Because there was a difference between the two plastic sachets, the items
recovered by SPO3 Samson was a little bit bigger, maam.

Q: Im showing to you a bigger plastic sachet with the markings TR- R, are you
referring to this?
A: Yes, maam.[23]

Based on the testimony of PO1 Ignacio, the substances retrieved from Climaco and submitted to
the court were contained in two (2) plastic sachets with the markings TR-R and TR-B. However,
according to the Chemistry Report executed by Forensic Chemist Donna Villa P. Huelgas on 8
September 2004, the plastic sachets submitted for examination carried the markings GSC-1 and
GSC-2, different from the plastic sachets marked TR-R and TR-B containing the drugs retrieved
from Climaco:

CHEMISTRY REPORT NUMBER: D-1102-04

 xxxx

SPECIMEN SUBMITTED:
A One (1) heat-sealed transparent plastic sachet, with markings GSC1, containing
0.35 gram of white crystalline substance and placed in a staple-sealed transparent
plastic bag. (Allegedly bought by the Police Poseur-Buyer)

B One (1) heat-sealed transparent plastic sachet, with markings GSC2, containing
0.14 gram of white crystalline substance and placed in a staple-sealed transparent
plastic bag. (Allegedly found from the posession of Glomer Climaco)[24]

In addition, in the Index of Exhibits submitted by the Officer-in-Charge of the RTC, Exhibit C-1
was described as a plastic sachet with white crystalline substance with markings GSC-1 while
Exhibit C-2 was described as a plastic sachet with white crystalline substance with markings
GSC-2,[25] contrary to the testimony of PO1 Ignacio and the declaration of Prosecutor Casano
that the specimens submitted to the court carried the markings TR-B and TR-R.

Likewise, in the handwritten Minutes dated 5 January 2005, Exhibit C-1 was identified as a
plastic sachet with white crystalline substance with marking GSC-1, and Exhibit C-2 was
identified as a plastic sachet with white crystalline substance with marking GSC-2.[26]

Clearly, what was submitted to the trial court were plastic sachets bearing the markings GSC-1
and GSC-2, instead of the plastic sachets bearing the markings TR-R and TR-B that contained
the substances recovered from Climaco. This fact is evident from the RTC Decision, recognizing
Exhibits C-1 and C-2 to bear the markings GSC-1 and GSC-2, while acknowledging the
testimony of PO1 Ignacio that the plastic sachets containing the substances recovered from
Climaco bore the markings TR-R and TR-B:

The prosecution presented two (2) witnesses in the persons of x x x Forensic

Chemist Donna Villa Huelgas, whose testimony was dispensed with on 5
January 2005 upon defenses admission of the existence of the following: 1)
Written Request for Laboratory Examination as Exhibit A; 2) The Chemistry
Report No. D-1102-04 as Exhibit B; 3) 1 white envelope as Exhibit C; 4) the
existence of two (2) plastic sachets with markings GSC-1 as Exhibit C-1; and
5) another one with markings GSC-2 as Exhibit C-2.

xxxx
 The plastic sachet product of the buy-bust was marked TR-B, which means
Teofilo Royena and the letter B means Bust. While the plastic sachet recovered
from Gomer was marked TR-R, which means Teofilo Royena and the letter R
means Recovered.[27] (Emphasis supplied)

The prosecution did not explain why the markings of the plastic sachets containing the alleged
drugs, which were submitted to be TR-B and TR-R, became GSC-1 and GSC-2 in the Chemistry
Report, Index of Exhibits and Minutes of the Hearing. In their decisions, the RTC and CA were
silent on the change of the markings. In fact, since the markings are different, the presumption is
that the substance in the plastic sachets marked as TR-B and TR-R is different from the
substance in the plastic sachets marked as GSC-1 and GSC-2. There is no moral certainty that
the substance taken from appellant is the same dangerous drug submitted to the laboratory and
the trial court.

As held in Malillin v. People,[28] to establish guilt of the accused beyond reasonable doubt in
cases involving dangerous drugs, it is important that the substance illegally possessed in the first
place be the same substance offered in court as exhibit. This chain of custody requirement
ensures that unnecessary doubts are removed concerning the identity of the evidence. When the
identity of the dangerous drug recovered from the accused is not the same dangerous drug
presented to the forensic chemist for review and examination, nor the same dangerous drug
presented to the court, the identity of the dangerous drug is not preserved due to the broken chain
of custody. With this, an element in the criminal cases for illegal sale and illegal possession of
dangerous drugs, the corpus delicti,is not proven, and the accused must then be acquitted based
on reasonable doubt. For this reason, Climaco must be acquitted on the ground of reasonable
doubt due to the broken chain of custody over the dangerous drug allegedly recovered from him.

WHEREFORE, we SET ASIDE the 29 March 2011 Decision of the Court of Appeals in CA-
G.R. CR-H.C. No. 03860 affirming the judgment of conviction of the Regional Trial Court,
Branch 31, San Pedro, Laguna in Criminal Case Nos. 4911-SPL and 4912-SPL dated 20 January
2009. We ACQUIT appellant Gomer S. Climaco based on reasonable doubt and we ORDER his
immediate release from detention, unless he is detained for any other lawful cause.

We DIRECT the Director of the Bureau of Corrections to implement this Decision and to report
to this Court on the action taken within five (5) days from receipt of this Decision.

SO ORDERED.
+++++++++++

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. JOSE CLARA Y

BUHAIN, Accused-Appellant.

DECISION

PEREZ, J.:

This is an appeal filed by herein accused Joel Clara y Buhain (Joel) from the Decision1 of the
Court of Appeals (CA) affirming the decision of conviction rendered by the Regional Trial Court
of Quezon City tor violation of Section 5, Article II of R.A. No. 9165.2cralaw virtualaw library

The factual rendition of the prosecution follows:cralawlibrary

Prosecution witness P03 Leonardo R. Ramos (P03 Ramos) narrated that he acted as a poseur-
buyer in a buy-bust operation conducted by their office, the District Anti-Illegal Drug Special
Task Group (DAID-SOTG) of Quezon City on 12 September 2005.3 He recalled that on or about
4:00 o’clock in afternoon of the said date, a male informant came to their office with the
information that a person named “Ningning” was selling drugs at 22-C Salvador Drive,
Balonbato, Quezon City.4 Police team leader SPO2 Dante D. Nagera (SPO2 Nagera) endorsed
the matter to their Chief of Office Col. Gerardo B. Ratuita (Col. Ratuita) for the conduct of a
buy-bust operation.5 A buy-bust group was created consisting of SPO2 Nagera, PO1 Peggy
Lynne V. Vargas (PO1 Vargas), PO1 Teresita B. Reyes (PO1 Reyes), PO1 Alexander A. Jimenez
(PO1 Jimenez) and PO3 Ramos who was designated as the poseur-buyer.6 During the briefing, it
was agreed upon that P200.00-worth of shabu would be bought from “Ningning” by PO3
Ramos. Before leaving for their target, PO1 Reyes prepared a Pre-Operation Report and
forwarded it to the Tactical Operation Communication of Philippine Drug Enforcement Agency
(PDEA) for coordination.7 At 8:00 o’clock in the evening, the team proceeded to the area on
board three vehicles: Nissan Sentra, Toyota Corolla and owner-type jeep.8 Upon their arrival at
9:35 o’clock in the evening, PO3 Ramos and the informant knocked on the door of the house
while the rest of the team positioned themselves ten meters away.9 The informant identified
“Gigi” as the accused Joel, Ningning’s uncle.10 Initiating a conversation, the informant
introduced to Joel PO3 Ramos as a buyer of P200.00-peso worth of illegal drug. When PO3
Ramos asked for Ningning, Joel answered that she was upstairs. Joel asked for payment and PO3
Ramos handed the P200 marked money.11 Joel went upstairs and called Ningning. Ningning
opened the door and handed Joel a small plastic sachet of shabu which in turn was handed to
PO3 Ramos.12cralaw virtualaw library

Thereafter, PO3 Ramos touched his head as a pre-arranged signal to prompt the back-up police
officers of the consummation of the illegal sale. Immediately, the rest of the team rushed to the
place to arrest Joel.13 Joel tried to close the door to prevent the police officers from entering the
house but PO3 Ramos was able to grab him. SPO2 Nagera quickly went upstairs to arrest
Ningning but the latter was able to escape apprehension.14 PO3 Ramos immediately frisked Joel
inside the house but failed to recover anything from him; the marked money was given to
Ningning when Joel went upstairs to get the plastic sachet.15cralaw virtualaw library

Joel was brought to the police station and was informed by PO1 Jimenez of his constitutional
rights as a consequence of his arrest.16 Afterwards, the small plastic sachet recovered was
marked by PO1 Jimenez inside the station and an inventory receipt was prepared.17 PO3 Ramos
clarified that the plastic sachet was in the possession of PO1 Jimenez from the place of arrest
until arrival at the police station. PO3 Ramos added that PO1 Jimenez was present at the time of
arrest which explained his possession of the plastic sachet containing shabu.18cralaw virtualaw
library

Inside the courtroom, PO3 Ramos identified Joel as the one involved in the illegal
transaction.19 He also identified the small plastic sachet of shabu as the subject of the illegal
transaction through the marking “LRR” he placed on it.20 He testified that he brought the plastic
sachet containing the specimen to the crime laboratory for examination21 where it was tested
positive for methamphetamine hydrochloride, as certified by the examining Forensic Chemist
Engr. Leonard M. Jabonillo (Forensic Chemist Jabonillo) of Central Police District Crime
Laboratory in his Chemistry Report.22cralaw virtualaw library

SPO2 Nagera was also called to the witness stand to present his version of the events. However,
some inconsistencies surfaced during his examination at the witness stand.

When asked about the gender of the informant who came to their office, he answered that the
informant was a female, contradicting the statement of PO3 Ramos.23 He also differed from the
statement of PO3

Ramos when he testified that only two modes of transportation, instead of three, were used by
the buy-bust team in proceeding to the target area, one Nissan Maxima and one owner-type
jeep.24 He also had difficulty in identifying the accused inside the court room when he was asked
upon by the prosecutor to do so.25cralaw virtualaw library

Further contradiction was made when SPO2 Nagera narrated that PO3 Ramos was the one
holding the plastic sachet before it was turned over to PO1 Jimenez for investigation. 26 He also
admitted in his cross examination that he never saw Ningning during the entire buy-bust
operation.27 Finally, when asked about on who placed the initial “LRR” on the plastic sachet, he
positively identified that it was the investigator who put the same.28cralaw virtualaw library

PO1 Jimenez was also presented in court as a prosecution witness to give details of the buy-bust
operation. His version, however, also differed from the versions presented by PO3 Ramos and
SPO2 Nagera. He testified that the plastic sachet confiscated was already marked by the
apprehending officers when it was turned over to him for investigation, a contradiction of the
statements of both PO3 Ramos and SPO2 Nagera that it was him who marked the plastic sachet
with the initial “LRR.”29 He positively identified that he saw the item being marked by the
apprehending officers in their office.30cralaw virtualaw library

The defense interposed denial.

Accused Joel denied any involvement in the buy-bust operation. He recalled that he was inside
his house sleeping between 9:00 to 10:00 o’clock in the evening of 12 September 2005 when five
uniformed police officers entered his house.31 They got hold of his arm and frisked him but failed
to recover anything.32The police officers did not inform him of the reason for his arrest; neither
did they recite his constitutional rights. Afterwards, he was made to ride an owner type vehicle
and was taken to the police station where he was only asked for his name.33 He denied having
sold drugs and having seen the marked money and plastic sachet containing shabu.34cralaw
virtualaw library

On cross examination, Joel was also inconsistent in portions of his testimony. He testified that all
of his siblings were in the province and his only companions in the house at the time of the arrest
were his nephew and niece.35 However, when asked why the door was still open at around 10:00
o’clock in the evening, he replied that he was waiting for his sister.36 He also contradicted his
earlier statement that he was sleeping with his nephew and niece downstairs when in his cross
examination he said that his niece was staying on the second floor of the house at the time of the
arrival of the police officers.37cralaw virtualaw library

Joel was eventually charged with Illegal Sale of Dangerous Drugs punishable under Section 5,
Article II of R.A. No. 9165 before the Prosecutor’s Office of Quezon City. The accusatory
portion of the Information reads:cralawlibrary

Criminal Case No. 05-136719

That on or about the 12th day of September, 2005, in Quezon City, Philippines, the said accused,
not being authorized by law to sell, dispense, deliver, transport or distribute any dangerous drug,
did, then and there wilfully and unlawfully sell, dispense, deliver, transport, distribute or act as
broker in the said transaction, ZERO POINT ZERO SEVEN (0.07) gram of [Methamphetamine]
Hydrochloride (shabu), a dangerous drug.38

When arraigned, Joel pleaded not guilty to the offense charged.39cralaw virtualaw library

During pre-trial, it was agreed upon by both parties that Forensic Chemist Jabonillo had no
personal knowledge as to how the plastic sachet containing specimen positive for illegal drug
came to of police officers’ possession. The forensic chemist merely examined the specimen and
found it to be positive for methamphetamine hydrochloride. As a consequence of these
stipulations, his testimony was dispensed with by the court.40cralaw virtualaw library

Ruling of the Trial Court

The trial court on 21 March 2007 found the accused guilty of the offense charged. The
dispositive portion of the decision41 reads:cralawlibrary

ACCORDINGLY, judgment is rendered finding the accused JOEL CLARA Y BUHAIN

GUILTY beyond reasonable of the crime [in] violation of Sec. 5 of R.A. 9165 as charged (for
drug pushing) and he is sentenced to suffer the prescribed jail term of Life Imprisonment and
pay a fine of P500,000.00.

The shabu weighing 0.07 gram involved in this case is ordered transmitted to the PDEA thru
DDB for disposal in accordance with R.A. 9165.42

The trial court ruled that Joel directly dealt with the poseur buyer and participated in all the
stages of the illegal sale. It found conspiracy between Joel and Ningning. It pointed out that
Ningning was able to escape the police dragnet while Joel was being arrested because of her
familiarity as a drug operator with police operations.

The police operation and its coordination with the operatives of the PDEA would be recognized
by the appellate court as legally performed.43 On the contrary the prosecution’s scenario that the
police officers entered Joel’s residence and hauled him out with no reason at all was found to be
improbable.44cralaw virtualaw library

Ruling of the Court of Appeals

In affirming the ruling of the trial court, the appellate court ruled that all the elements of an
illegal sale of dangerous drugs were present.45First, Joel, as the seller of illegal drug, was
positively identified by the poseur buyer and the police officers; Second, the confiscated white
crystalline substance which was found by the PNP crime laboratory as positive for
Methamphetamine Hydrochloride which is a dangerous drug was presented during trial;
and Lastly, the illegal sale was for a consideration of P200.00 given by PO3 Ramos as poseur
buyer. The appellate court further held that the non-presentation of the marked money was not
fatal since the prosecution witnesses were able to establish that the P200.00 bill used to purchase
the illegal drug was in the possession of Ningning who was able to evade arrest.46cralaw
virtualaw library

Our Ruling

After a careful review of the evidence, we resolve to reverse the ruling of conviction and render a
judgment of acquittal in favor of the accused.

In his Brief, the accused-appellant contested his conviction due to the inconsistencies in the
prosecution’s presentation of a supposed buy-bust operation, coupled with its failure to establish
with certainty the chain of custody of evidence. He also argued against the presumption of
regularity of performance of duties. Finally, to substantiate his innocence, he pointed out that he
was not even the target person in the PDEA Coordination Report and denied any conspiracy and
involvement with such target person named “Ningning.”47cralaw virtualaw library

Inspite of the imperfect narration of events by the accused Joel, we are constrained to render a
judgment of acquittal due to the lapses of the prosecution that led to its failure to discharge the
burden of proof beyond reasonable doubt that the accused committed the crime.

In order to successfully prosecute an offense of illegal sale of dangerous drugs, like shabu, the
following elements must first be established: (1) the identity of the buyer and the seller, the
object and consideration of the sale; and (2) the delivery of the thing sold and the payment
therefor.

It is basic in criminal prosecutions that an accused is presumed innocent of the charge laid unless
the contrary is proven beyond reasonable doubt. The prosecution has the burden to overcome
such presumption of innocence by presenting the quantum of evidence required.

Proof beyond reasonable doubt does not mean such a degree of proof as, excluding possibility of
error, produces absolute certainty. Moral certainty only is required, or that degree of proof which
produces conviction in an unprejudiced mind.48 It must rest on its own merits and must not rely
on the weakness of the defense. If the prosecution fails to meet the required amount of evidence,
the defense may logically not even present evidence on its own behalf, in which case, the
presumption prevails and the accused should necessarily be acquitted.49cralaw virtualaw library

In this case, the prosecution failed to overcome such presumption when it presented inconsistent
versions of an illegal sale.

PO3 Ramos identified Joel as the seller who sold to him a small plastic sachet containing shabu
in exchange of two hundred pesos. We quote the relevant portions:cralawlibrary

FISCAL (to witness)

Q: What happened there?
A: When we reached the house sir, we knocked at the door and alias Gigi
open (sic) it.
xxxx
Q: What was the conversation with you during that time?
A: The informant first introduced me to Gigi that I will be the one to buy
shabu.
Q: What was the answer of Gigi at that time?
A: He asked how much.
Q: What was your answer?
A: I said ‘dos’.
Q: After informing him that you intend to buy dos of illegal drug, what
happened?
A: I first asked where is Ningning.
Q: What was the answer of Gigi?
A: He said that she was upstairs.
Q: What happened after that?
A: He asked for my money, sir.
Q: Did you give the P200.00.
A: Yes sir, I gave the money.
Q: After giving that money to Gigi, what happened after that?
A: He called Ningning from up stair (sic).
Q: Did Ningning go to the place where you were talking with Gigi at that
time?
A: No sir, she just open (sic) the door and handed the sachet of shabu.
xxxx
 Q: When he received that from Ningning at that time, what did you do?
A: After Gigi got it he gave it to me, sir.
Q: Can you describe that item you received from Gigi that came from
Ningning at that time?
A: Yes sir.
Q: Can you describe?
A: Yes sir, just a small plastic sachet.50

PO3 Ramos initially testified that he placed his marking on the small plastic sachet he was able
to buy from Joel:cralawlibrary

Q: If that small plastic sachet is shown to you can you indentify the
specimen?
A: Yes, sir.
Q: Why?
A: Because I placed my marking.
Q: What marking did you place?
A: LRR.
Q: Showing to you this transparent plastic sachet containing illegal drug,
what can you say about that, what is the relation of that transparent
plastic sachet to the plastic sachet you have just mentioned?
A: That is the sachet I was able to buy, sir.
Q: Where is the marking?
A: It was on top of the plastic sachet. 51 (Emphasis supplied)

However, he would later present a new version on who marked the plastic sachet:cralawlibrary

Q: Now, going [back] to the police station, other than searching, what
other matters [were] taken during the arrest?
A: The evidence that I was able to get from Ningning and it was the
investigator who marked it.
Q: Other than putting the initial on the transparent plastic sachet
immediately after the arrest Mr. Witness, what was the SOP in a buy-
bust operation, after taking or receiving the item from the accused
during the arrest?
A: We made the inventory receipt, sir.52 (Emphasis supplied)
xxxx
Q: x x x. You said that it was the investigator who made the marking
in the transparent plastic sachet, where were you when the
marking was placed on it?
A: I was in front of the investigator.
Q: What was the marking placed?
A: LRR.53 (Emphasis supplied)
xxxx
Q: You said that the investigator placed the marking in the
transparent plastic sachet and likewise he was the one who made
the inventory receipt. In what particular place that he prepared this
 particular document?
A: At the area, sir.
Q: What do you mean by area?
A: In front of the house of the accused, sir.
Q: What is the name of that investigator again?
A: Alexander Jimenez, sir.54 (Emphasis supplied)

The testimony of PO3 Ramos, which apparently was given as proof of all the elements that
constitute an illegal sale of drug is however, inconsistent on material points from the recollection
of events of PO3 Ramos, SPO2 Nagera and PO1 Jimenez regarding the marking, handling and
turnover of the plastic sachet containing the dangerous drug of shabu.

SPO2 Nagera narrated that it was PO1 Jimenez who marked the plastic sachet after it was
handed by PO3 Ramos:cralawlibrary

Q: What did the investigator do to shabu, Mr. Witness?

A: They placed their initial and prepared request for examination
address to the Crime Laboratory sir.55 (Emphasis supplied)
xxxx
Q: Where was PO3 Ramos when that plastic sachet, when the police
investigator put the initial, Mr. Witness?
A: We were there sir.56 (Emphasis supplied)

However, PO1 Jimenez later testified that it was PO3 Ramos who marked the plastic sachet in
their office.

Q: Being the investigator you saw the item confiscated?

A: Yes, sir.
Q: Was it already marked when it was received by you?
A: It was already marked by the apprehending officers.
Q: Did you [see] it marked by the apprehending officer?
A: Yes, sir.
Q: Where?
A: In our office.57 (Emphasis supplied)

Contradictory statements were further made as to who between PO3 Ramos and PO1 Jimenez
held the shabu from the time of the arrest until arrival at the police station. PO3 Ramos pointed
to PO1 Jimenez in his direct examination:cralawlibrary

Q: You said immediately after arresting and searching the accused in this
case you said that you brought the accused to the police station, who
was in possession of the transparent plastic sachet from where you
received that transparent plastic sachet in exchange to P200.00
going to the police station Mr. Witness?
A: The investigator, sir.
Q: You mean to say that investigator was present when the accused was
 arrested in this case?
A: Yes sir, he was with us.58 (Emphasis supplied)

However, SPO2 Nagera pointed to PO3 Ramos as the one in possession:cralawlibrary

Q: What about the shabu, who was holding it in going to the police
station, Mr. Witness?
A: Ramos, sir.
Q: What happened next, Mr. Witness?
A: It was turn (sic) over to the police investigator, sir.59 (Emphasis
supplied)

The clear inconsistency in the presentation of facts is fatal. It creates doubts whether the
transaction really occurred or not. Though Joel’s denial as a defense is weak, such cannot relieve
the prosecution the burden of presenting proof beyond reasonable doubt that an illegal
transaction actually took place.60cralaw virtualaw library

Inconsistencies of the prosecution witnesses referring to the events that transpired in the buy-bust
operation can overturn the judgment of conviction. As held in Zaragga v. People,61 material
inconsistencies with regard to when and where the markings on the shabu were made and the
lack of inventory on the seized drugs created reasonable doubt as to the identity of the corpus
delicti. Prosecution’s failure to indubitably show the identity of the shabu led to the acquittal of
the accused in that case.62cralaw virtualaw library

Inconsistencies and discrepancies referring to minor details and not upon the basic aspect of the
crime do not diminish the witnesses’ credibility. If the cited inconsistency has nothing to do with
the elements of a crime, it does not stand as a ground to reverse a conviction.63 However, in this
case, the material inconsistencies are furthered by inconsistencies of the police officers on minor
details. Referring back to the narration of circumstances of the buy-bust operation, SPO2 Nagera
was asked about the gender of the informant who went to their office to report about the illegal
activities committed by Ningning. He readily answered that the informant was a female.64 PO3
Ramos in turn, when asked to describe what happened in the afternoon before the buy-bust
operation, testified that a male informant came to their office to report about a person selling
illegal drugs.65cralaw virtualaw library

These conflicting statements of the prosecution effectively broke the chain of custody of
evidence of the sale of dangerous drug.

Section 21(a) of the Implementing Rules and Regulations (IRR) of R.A. No. 9165 provides for
the procedure to be observed in preserving the integrity of chain of custody:cralawlibrary

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, plant sources of dangerous drugs, controlled precursors and
essential chemicals, as well as instruments/paraphernalia and/or laboratory so confiscated, seized
and/or surrendered, for disposition in the following manner:cralawlibrary
(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 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 copy thereof. Provided, that the physical inventory and the photograph shall be
conducted at the place where the search warrant is served; or at least the nearest police station or
at the nearest office of the apprehending officer/team, whichever is practicable, in case of
warrantless seizures; Provided, further, that non- compliance with these requirements under
justifiable grounds, as long as the integrity and evidentiary value of the seized items are properly
preserved by the apprehending team/officer, shall not render void and invalid such seizures of
and custody over said items.

“Chain of custody” means 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 and finally for destruction. 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.66cralaw virtualaw library

To establish the chain of custody in a buy-bust operation, the prosecution must establish the
following links, namely: First, the seizure and marking, if practicable, of the illegal drug
recovered from the accused by the apprehending officer; Second, the turnover of the illegal drug
seized by the apprehending officer to the investigating officer; Third, the turnover by the
investigating officer of the illegal drug to the forensic chemist for laboratory examination;
and Fourth, the turnover and submission of the marked illegal drug seized by the forensic
chemist to the court.67.

The “objective test” in determining the credibility of prosecution witnesses regarding the conduct
of buy-bust operation provides that it is the duty of the prosecution to present a complete picture
detailing the buy-bust operation—from the initial contact between the poseur-buyer and the
pusher, the offer to purchase, the promise or payment of the consideration, until the
consummation of the sale by the delivery of the illegal subject of sale.68 The manner by which
the initial contact was made, the offer to purchase the drug, the payment of the buy-bust money,
and the delivery of the illegal drug must be the subject of strict scrutiny by courts to insure that
law-abiding citizens are not unlawfully induced to commit an offense.69cralaw virtualaw library

In view of these guiding principles, we rule that the prosecution failed to present a clear picture
on how the police officers seized and marked the illegal drug recovered by the apprehending
officer and how the specimen was turned over by the apprehending officer to the investigating
officer.

As to the first link of marking, the three police officers failed to agree on who among them
marked the plastic sachet, which is highly improbable if they really had a clear grasp on what
really transpired on the day of operation.

PO3 Ramos testified that he placed his marking on the small plastic sachet but recanted his
previous statement at the latter part of the examination and pointed out that it was the
investigator PO1 Jimenez who put the marking in front of him at the area of arrest.70 SPO2
Nagera in his testimony confirmed that it was PO1 Jimenez who put marking on the plastic
sachet.71 However, PO1 Jimenez in his testimony clarified that the item confiscated were
already marked by the apprehending officers when it was turned over to him in their
office.72cralaw virtualaw library

Likewise, they cannot seem to agree on the second link on who among them held the item
confiscated from the time of arrest and confiscation until it was turned over to the investigator
and the place where it was turned over.

PO3 Ramos positively pointed that it was PO1 Jimenez who took possession of the item from the
time of the arrest until arrival at the police station.73 However, when SPO2 Nagera was asked, he
pointed out that it was PO3 Ramos who held the item from the time of the arrest until they
reached the police where it was turned over to Jimenez for investigation.74cralaw virtualaw
library

In Malillin v. People,75 it was explained that the chain of custody rule includes testimony about
every link in the chain, from the moment the item was picked up to the time it was offered in
evidence, in such a way that every person who touched the exhibit would describe how and from
whom it was received, where it was and what happened to it while in the witness’ possession, the
condition in which it was received and the condition in which it was delivered to the next link in
the chain.76cralaw virtualaw library

The inconsistent statements of the police officers generated doubt on whether the identity of the
evidence seized upon apprehension is the same evidence subjected to marking and inventory
then given to the Jimenez for investigation and eventually submitted by PO3 Ramos for
examination by the forensic chemist.

The prosecution cannot rely on the saving clause provided under Section 21(a) of the IRR that
non-compliance with the legal requirements shall not render void and invalid seizures of and
custody over said items. This saving clause is applicable only if prosecution was able to prove
the twin conditions of (a) existence of justifiable grounds and (b) preservation of the integrity
and the evidentiary value of the items.77 The procedural lapses in this case put to doubt the
integrity of the items presented in court.

The People, through the Office of the Solicitor General, is adamant in its argument that there is a
presumption of regularity in the performance of duty by police officers conducting buy-bust
operation.

We agree but with qualification.

In numerous cases, we were inclined to uphold the presumption of regularity in the performance
of duty of public officers.78 However, this is not a hard-and-fast rule. It does not mean that we
straight away and without a blink of the eye rule on the regularity of their performance of duties.
We at all times harmonize the interest of the accused alongside the interest of the State.

Inconsistencies committed by the police officers amounting to procedural lapses in observing the
chain of custody of evidence requirement effectively negated this presumption. Their inaccurate
recall of events amounted to irregularities that affected the presumption and tilted the evidence in
favor of the accused. The absence of improper motive tends to sustain inexistence but does not
absolutely rule out false charges.

In case of conflict between the presumption of regularity of police officers and the presumption
of innocence of the accused, we rule that the latter must prevail as the law imposes upon the
prosecution the highest degree of proof of evidence to sustain conviction.79cralaw virtualaw
library

Due to foregoing flagrant inconsistencies in the testimonies of police officers which directly
constitute the recollection of events of buy-bust together and failure of observance of chain of
custody of evidence which effectively broke the links to sustain conviction, we rule for the
acquittal of the accused.

WHEREFORE, the appeal is GRANTED. The 4 August 2010 Decision of the Court of Appeals
in CA-G.R. CR-H.C. No. 02714 affirming the judgment of conviction dated 21 March 2007 of
the Regional Trial Court, Branch 103 of Quezon City is hereby REVERSED and SET ASIDE.
Accused-appellant JOSE CLARA yBUHAIN is hereby ACQUITTED and ordered
immediately released from detention unless his continued confinement is warranted for some
other cause or ground.

SO ORDERED.
++++++++++
SECOND DIVISION

PEOPLE OF THE PHILIPPINES, G.R. No. 194445

Plaintiff,
Present:
 CARPIO, J.,
Chairperson,
BRION
- versus - PEREZ,
SERENO, and
REYES, JJ.

ROGER POSADA y URBANO and EMILY

POSADA y SARMIENTO, Promulgated:
Accused.
March 12, 2012

x-----------------------------------------------------------------------------------------x

DECISION

REYES, J.:

As we decide this appeal involving a couple who allegedly violated Republic Act No. 9165 (R.A.
9165), otherwise known as the Comprehensive Dangerous Drugs Act of 2002, we should bear in
mind the words emanating from the pen of former Justice Isagani A. Cruz:

We need only add that the active support of everyone is

needed to bolster the campaign of the government against the evil
of drug addiction. The merchants of all prohibited drugs, from the
rich and powerful syndicates to the individual street "pushers,"
must be hounded relentlessly and punished to the full extent of the
law, subject only to the inhibitions of the Bill of Rights.[1]

The Case

Accused-appellants Roger Posada (Roger) and Emily Posada (Emily) were convicted by the
Regional Trial Court (RTC), Branch 43, Virac, Catanduanes, in Criminal Case No. 3490 for
selling twelve (12) pieces of transparent sealed plastic sachet, containing Methamphetamine
Hydrochloride or shabu with a total weight of 0.4578 grams, in violation of Section 5, Article II
of R.A. No. 9165.[2]
Roger was also convicted by the same RTC in Criminal Case No. 3489 for possession of one
piece of torn plastic sachet, containing residue of a crystalline substance (allegedly shabu), a
piece of small aluminum foil, a pair of small scissors, and fifteen (15) pieces of used lighter all of
which are intended to be used for smoking or introducing dangerous drugs into the body of a
person, in violation of Section 12, Article II of R.A. No. 9165.[3]

Aggrieved by the RTC Decision, the accused-appellants filed an appeal before the Court of
Appeals (CA) which, via a Decision[4] dated June 17, 2010, affirmed the RTC Decision as to the
accused-appellants' conviction in Criminal Case No. 3490 but acquitted Roger in Criminal Case
No. 3489 on the ground of reasonable doubt.

Now, the accused-appellants ask this Court for a complete exoneration from the offense charged
in Criminal Case No. 3490 on the ground that the prosecution failed to establish the chain of
custody and integrity of the seized illegal items and to prove their guilt beyond reasonable doubt.

Antecedent Facts

According to the evidence of the prosecution, P/CI Gil Francis Tria (P/CI Tria), the Chief of
Police of Virac Municipal Police Station and representative of the Philippine Drug Enforcement
Agency (PDEA), ordered surveillance on the activities of the accused-appellants and a certain
Johnjohn Urbano (Urbano).[5] As a result of the said surveillance, PO1 Roldan Area (PO1 Area)
was able to buy one sachet of shabu from Emily for P250.00 on August 2, 2005.[6]

Consequently, after the August 2, 2005 test-buy yielded positive result, P/CI Tria applied for a
search warrant, which the Honorable Jaime E. Contreras granted. [7] Thus, at noontime of August
3, 2005, P/CI Tria and his team proceeded to Barangay Concepcion and coordinated
with Punong Barangay Antonio Asuncion, Jr. (Asuncion) in the operation against the accused-
appellants.[8]

When the team of P/CI Tria reached the place of operation, they found Emily standing in front of
her house. PO1 Area, who was the poseur-buyer, called her and when she came near him, he told
her that he would buy shabu. PO1 Area then handed to Emily P250.00, consisting of two pieces
of P100.00 bill and one piece of P50.00 bill. After receiving the money from PO1 Area, Emily
immediately went to her house and got a coin purse. When she returned at the scene of the
operation, Emily gave PO1 Area one sachet of shabu, which she got from the coin purse.
Subsequently, Roger appeared and handed to Emily 12 plastic sachets of shabu which Emily
placed inside the coin purse. At this point, PO1 Area identified himself as a police officer while
giving the signal to his team that the buy-bust turned positive. He arrested Emily while Roger ran
away and went inside their house. PO1 Area informed Emily of her constitutional rights, but the
latter failed to utter any word.[9]

While PO1 Area was holding the arm of Emily, who still had in her hands the coin purse where
she got the sachet of shabu and the buy-bust money, P/CI Tria took pictures of the incident using
his cellphone while the official photographer was also taking pictures. After the search, a coin
purse containing sachets of shabu and a bundle of money was found in Emily's possession.
[10]
PO1 Area then prepared a Receipt for Property Seized (RPS). [11] Asuncion, Kagawad Eva
Sarmiento (Sarmiento) and a certain Robert Vargas (Vargas) witnessed the preparation of the said
receipt.[12]

Meanwhile, when Roger left Emily at the scene of the buy-bust operation, he went inside his
house and closed the door. Armed with the search warrant, SPO1 Salvador Aldave, Jr. (SPO1
Aldave) forced the door open. SPO1 Aldave was the first person to enter the house, followed by
the barangay officials and his fellow officers, SPO1 Roger Masagca (SPO1 Masagca) and PO1
Ronnie Valeza (PO1 Valeza). The search warrant was shown to Roger. In his presence and in the
presence of Kagawad Jena Arcilla (Arcilla), the raiding team recovered one piece of aluminum
foil, one plastic sachet containing residue of white crystalline substance, and one small pair of
green scissors beside the bed inside a room, and 15 pieces of used lighters from an improvised
altar on top of a wooden table. A search of Roger's pocket yielded two pieces of P50.00 bill and
one piece of P100.00 bill. SPO1 Aldave as the seizing officer prepared and signed an
RPS. Asuncion, Arcilla and Barangay Tanod Juan Gonzales (Gonzales) witnessed the
preparation and signing of the said RPS. Roger, however, refused to sign the same. The couple
was then brought to the police station.[13]

At the Virac Police Station, a body search on Emily resulted in the seizure of bills of
different denominations, totaling P2,720.00. Some of these bills were identified as those bills
photocopied and submitted to the Provincial Prosecution Office.[14]

On August 4, 2005, immediately after the operation and the execution of the search warrant, P/CI
Tria requested for a laboratory examination of a piece of small size heat-sealed transparent
plastic sachet, containing white crystalline substance marked with initial R; 12 pieces of small
size heat-sealed transparent plastic sachets, containing white crystalline substance with sub-
markings R-1 to R-12; and one small size crumpled aluminum foil and small size plastic sachet.
The request of P/CI Tria for laboratory examination dated August 4, 2005 was received by a
certain PO2 Abanio [Abao] and Police Inspector Sta. Cruz, J. (P/Insp. Sta. Cruz). The sachet
with the initial R was the sachet of shabu sold to PO1 Area during the buy bust operation while
the sachets of shabu marked as R-1 to R-12 were the sachets of shabu which Roger handed to
Emily and which were found in the possession of Emily after PO1 Area identified himself as a
police officer.[15]

Subsequently, witness Police Senior Inspector Josephine Macura Clemen (PSI Clemen), the
forensic expert, received personally from the receiving clerk (PO2 Abanio) the above-mentioned
marked pieces of evidence. She then immediately conducted laboratory examination, yielding a
result that the 12 pieces of plastic sachets (with markings R-1 to R-12), the one heat-sealed
transparent plastic sachet with marking R, the one aluminum foil strip, and a small size plastic
sachet contained methamphetamine hydrochloride.[16]

The accused-appellants were subsequently charged in two separate Informations, [17] both dated
August 4, 2005, with violation of Sections 5, 11 and 12, Article II of R.A. No. 9165, which were
respectively docketed as Criminal Case No. 3490 and Criminal Case No. 3489. The Informations
state as follows:

Criminal Case No. 3490

The undersigned Provincial Prosecutor accuses Roger Posada y Urbano and

Emily Posada y Sarmiento of Violation of R.A. 9165 defined and penalized under
Section 5 of said Law, committed as follows:

That on or about the 3rd day of August 2005 at noontime along Imelda Blvd. in
barangay Concepcion, municipality (sic) of Virac, [P]rovince of Catanduanes,
Philippines and within the jurisdiction of the Honorable Court, the above-named
accused without the authority of law, conspiring, confederating and helping
one another, did then and there willfully, unlawfully, and feloniously sell,
deliver and give away to another 12 pieces of transparent sealed plastic
sachet containing Methamphetamine Hydrochloride[,] locally known as shabu[,]
with a total weight of 0.9 gram [-] a prohibited drug[,] and several marked money
bills.[18][Emphasis supplied]

Criminal Case No. 3489

 The undersigned Provincial Prosecutor accuses Roger Posada y Urbano of
Violation of R.A. 9165 defined and penalized under Section 12 of said law,
committed as follows:

That on or about the 3rd day of August 2005 in the afternoon in Barangay
Concepcion, municipality (sic) of Virac, province (sic) of Catanduanes,
Philippines, within the jurisdiction of the Honorable Court, the said accused
without the authority of law did then and there willfully, unlawfully and
feloniously possess and in control of one (1) piece of teared plastic sachet
containing residue of a crystalline substance[,] locally known as shabu, (1) piece
small aluminum foil, (1) piece small scissors (sic) and 15 pieces of used lighter[,]
which paraphernalia are (sic) fit or intended for smoking or introducing any
dangerous drug into the body of a person.[19]

However, the Information for Criminal Case No. 3490 was later amended, [20] to reflect a change
in the weight of the seized drugs from 0.9 gram to 0.4578 gram.

Meanwhile, on the part of the accused-appellants, they simply denied the accusations against
them. Roger claimed that on April 3, 2005 (which was even a misleading date since the event
happened on August 3, 2005), at around 12 noon, he was putting his three year-old child to sleep
inside their house, while his wife Emily was washing their clothes at his parents' house. He then
peeped through the window jalousies when he heard his wife calling out his name. He saw a
policeman, later identified as PO1 Area, pulling Emily towards the road. Roger claimed that PO1
Valeza later poked a gun at him, preventing him to move from the window. Thereafter, the door
of Roger's house was forced open, allowing SPO1 Aldave, SPO1 Masagca, PO1 Valeza
and Barangay Tanod Vic Vargas (Vargas) to enter his house. Inside the house, PO1 Valeza
allegedly took down the jackets hanging on the wall and searched them; SPO1 Aldave took
pictures while Vargas and SPO1 Masagca went inside the room and searched the cabinets where
toys were kept. Roger further claims that nothing was found in his house. After the search, Roger
was brought to the patrol car where his wife Emily was taken.[21]

Meanwhile, Emily testified that on that fateful day of August 3, 2005, she was washing clothes at
her mother-in-law's house when a man, whom she could not identify, approached her and asked
her if she was Emily Posada. She alleged that the man immediately held her hands, shouting
Police! Police! after which police officers Tria and Aldave arrived. Her picture was taken.
Subsequently, she was brought to the patrol car where her husband Roger later joined her. Both
Roger and Emily were then transported to the police station. Roger was placed behind bars while
Emily was placed at the detention cell of the Bureau of Jail Management and Penology (BJMP).
[22]

The couple claimed that the police officers did not inform them why they were brought to the
police station and subsequently detained. Emily denied that a buy-bust operation was conducted
against her, but she was aware of the search conducted in their house because her husband
informed her at the police station. Meanwhile, Roger also denied that the police officers
presented to him a search warrant. Likewise, both alleged that the money taken from Emily's
wallet were the proceeds of the sale of their chickens, which Roger gave to Emily. The said
money amounted to more or less P3,000.00.[23]

Issues

Considering that the accused-appellants did not file a supplemental brief and that appellee People
of the Philippines adopted its brief before the CA, we now rule on the matter based on the
issues[24]which the accused-appellants raised in their brief before the CA, to wit:

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-

APPELLANTS NOTWITHSTANDING THE PROSECUTION'S FAILURE TO
ESTABLISH THE CHAIN OF CUSTODY AND INTEGRITY OF THE
ALLEGED SEIZED ILLEGAL ITEMS.

II

THE COURT A QUO GRAVELY ERRED IN CONVICTING THE ACCUSED-

APPELANTS DESPITE THE PROSECUTION'S FAILURE TO PROVE THEIR
GUILT BEYOND REASONABLE DOUBT.[25]

Our Ruling

While we give due credence to the trial court's evaluation of the credibility of witnesses absent
any showing that the elements of the crime have been overlooked, misapprehended, or
misapplied, we will take pains in taking a second hard look on the issues the accused-appellants
raised, considering they are husband and wife whose imprisonment will greatly affect the
children they will leave behind once they are declared guilty beyond reasonable doubt.
Now, we are going to discuss the case following the issues the accused-appellants raised.

The prosecution has established the chain of

custody and integrity of the seized illegal items.

The accused-appellants alleged that the prosecution failed to establish the chain of custody and
integrity of the seized illegal items because:

(1) The apprehending officers allegedly failed to submit the seized illegal items to the
PNP Crime Laboratory Service for a qualitative and quantitative examination within the
mandatory 24-hour period from confiscation; and

(2) There is an alleged discrepancy as to the number of plastic sachets recovered from the
accused-appellants and those submitted to forensic chemist PSI Clemen.

On the first factual issue, we find that the records of the case and the testimonies of witnesses
belie the accused-appellants' contention.

Based on the records, the buy-bust operation, the arrest of the accused-appellants and the
confiscation of the illegal items happened at around 12 noon of August 3, 2005.[26] PO1 Area
received from Emily one sachet of shabu and after PO1 Area introduced himself and arrested
Emily, 12 more sachets of shabu were found in the possession of Emily. The said 12 sachets
of shabu were inside a coin purse, with a bundle of money.[27] PO1 Area prepared on the same
day an RPS[28] in the presence of Asuncion, Kagawad Sarmiento and Vargas.[29] On August 4,
2005, P/CI Tria requested for a laboratory examination of a piece of small size heat-sealed
transparent plastic sachet, containing white crystalline substance marked with initial R; 12 pieces
of small size heat-sealed transparent plastic sachets, containing white crystalline substance with
sub-markings R-1 to R-12; and one small size crumpled aluminum foil and small size plastic
sachet. The request of P/CI Tria for laboratory examination dated August 4, 2005 was received
by PO2 Abanio and P/Insp. Sta. Cruz on the same date.[30]

The accused-appellants wanted us to believe that a day had lapsed before P/CI Tria submitted the
illegal drugs to PNP Crime Laboratory Service, contrary to the mandate of Section 21 of R.A.
No. 9165. They even cited the testimony of P/CI Tria where the latter allegedly admitted
submitting the subject seized items on August 4, 2005. However, a close look at the testimony of
P/CI Tria[31] will reveal that nothing in it would show that he submitted the alleged illegal drugs
beyond the 24-hour reglementary period. In fact, even the Laboratory Examination Request
dated August 4, 2005 does not indicate violation of Section 21 of R.A. No. 9165. [32] Clearly, from
the foregoing, the accused-appellants failed to adduce any evidence to prove their contention.
The age-old but familiar rule that he who alleges must prove his allegation applies[33] in this case.
The accused-appellants' failure to show evidence that the police officers did not comply with
Section 21 of R.A. No. 9165 gives us no other recourse but to respect the findings of trial court
and of the CA.

Furthermore, the CA is correct in giving credence to the testimonies of the police officers as
regards the timely submission of the subject illegal drugs since they are presumed to have
regularly performed their duties, unless there is evidence suggesting ill-motive on the part of the
police officers.[34] In this case, the accused-appellants failed to contradict the presumption. What
goes against the accused-appellants is the fact that they have not offered any evidence of ill-
motive against the police officers. Emily even admitted that she did not know PO1 Area, the
poseur-buyer.[35] Considering that there was no existing relationship between the police officers
and the accused-appellants, the former could not be accused of improper motive to falsely testify
against the accused-appellants. In People v. Dumangay,[36] we upheld the findings of the lower
court on the presumption of regularity in the performance of official duties because there was no
proof of ill-motive. Therein, the accused-appellants self-serving and uncorroborated defenses did
not prevail over the trial court's findings on the credibility of witnesses. The same may be said in
the present case.

Finding the accused-appellants' arguments without a leg to stand on, the apprehending police
officers are presumed to have timely submitted the seized illegal items to the PNP Crime
Laboratory Service for a qualitative and quantitative examination within the mandatory 24-hour
period from confiscation.

On the second factual issue, we find the accused-appellants' claim not supported by evidence.

The accused-appellants alleged that the integrity of the seized illegal items was compromised
and their evidentiary value diminished because of the alleged discrepancy between the number of
plastic sachets recovered from the accused-appellants and those submitted to forensic chemist
PSI Clemen. They insisted that based on the Informations in Criminal Case Nos. 3489 and 3490
and the testimonies of witnesses Asuncion [37] and SPO1 Aldave,[38] only fourteen (14) plastic
sachets were recovered from the accused-appellants, while PSI Clemen allegedly testified that a
total of 15 sachets were submitted for examination.[39]

However, a review of the defense-quoted testimony of PSI Clemen would show that she received
one piece of small size heat-sealed transparent plastic sachet with marking R, [40] 12 pieces small
size heat-sealed marked as R-1 to R-12 [41] and one small size crumpled aluminum foil and small
size plastic sachet[42] totaling to 15 items. PSI Clemen's testimony tallies with the Laboratory
Examination Request (Exhibit J) of P/CI Tria. We reproduce Exhibit J below, to wit:

Republic of the Philippines

NATIONAL POLICE COMMISSION
PHILIPPINE NATIONAL POLICE
Virac Municipal Police Station
Virac, Catanduanes

MEMORANDUM:

FOR : The Chief

PNP Crime Laboratory Service
Camp Gen Simeon A Ola
Legaspi City

SUBJECT : Laboratory Examination request for

DATE : 04 August 2005
----------------------------------------------------------------------

1. Request conduct laboratory examination on the accompanying

specimen to determine whether the white crystalline granules
inside Thirteen (13) pcs small size transparent heat seald (sic)
plastic sachets are Methamphetamine Hydrochloride or SHABU
and also whether the one (1) pc small size crumpled aluminum foil
and small size transparent plastic sachet contains residue or
granules of Methamphetamine Hydrochloride or Shabu.

EXHIBIT QUANTITY/ DESCRIPTION

A One (1) pc small size heat sealed transparent
plastic sachet sachet (sic) containing white
crystalline substance with marking initial R the
initial of PO1 ROLDAN AREA who acted as
posuer (sic) buyer during the drug buy bust
operation.

B Twelve (12) pcs small size heat sealed

transparent plastic sachet containing white
 crystalline substance with markings R1-R12
found/confiscated from the suspect during drug
buy bust operation.

C One (1) small size crumpled aluminum foil and

small size plastic sachet confiscated/found in
the possession of suspect during the execution
of search warrant number 37 issued by Hon[.]
Judge Jaime E[.] Contreras of RTC Branch 43.

SUSPECT/S Roger Posada y Urbano

Emily Posada y Sarmiento
John-John Bryan Urbano y Zafe

COMPLAINANT Officer-in-Charge
Virac MPS

FACTS OF THE CASE: Evidence submitted for laboratory

examination was bought and others were confiscated by the PNP
team of Virac during Buy Bust (sic) operation and the
effect/execution of search warrant number 37 on August 3, 2005 in
[B]arangay Concepcion Virac, Catanduanes.

2. Request acknowledge reciept (sic) and furnish this office

Laboratory examination result as soon as possible for subsequent
submission/filing same in court as supporting documents to this
case.

GIL FRANCIS G[.] TRIA

Pol Chief Inspector
Officer-in-Charge[43]

Based on the cited exhibit, we find that in Exhibit A we have the first item, marked with R.
Under Exhibit B, we have the next 12 items marked as R-1 to R-12. Under Exhibit C, we have
the remaining two items submitted to the crime laboratory, namely one small size crumpled
aluminum foil and small size plastic sachet confiscated and found in the possession of Roger. All
these items total to 15 items consistent with the testimony of PSI Clemen. Thus, evidence shows
no discrepancy as to the number of plastic sachets recovered from the accused-appellants and
those submitted to forensic chemist PSI Clemen.

Finally, we say that the prosecution has established the chain of custody and integrity of the
seized illegal items.
After PO1 Area arrested Emily and confiscated the 13 sachets of shabu (one bought by PO1 Area
from Emily and 12 found in Emily's coin purse after she received the same from her husband
Roger),[44] P/CI Tria took pictures of the incident using his cellphone while the official
photographer was also taking pictures.[45] Then PO1 Area prepared an RPS,[46] which Asuncion,
Sarmiento and Vargas witnessed.[47] Meanwhile, SPO1 Aldave, seizing officer went inside the
house of the accused-appellants, prepared and signed an RPS after the raiding team found a piece
of aluminum foil, one plastic sachet containing residue of white crystalline substance, one small
pair of green scissors beside the bed inside a room, 15 pieces of used lighters, and two pieces
of P50.00 bill and one piece of P100.00 bill. Asuncion, Arcilla and Gonzales witnessed the
preparation and signing of the said RPS.[48] Thereafter, on August 4, 2005, P/CI Tria requested
for a laboratory examination of a piece of small size heat-sealed transparent plastic sachet,
containing white crystalline substance marked with initial R; 12 pieces of small size heat sealed
transparent plastic sachets, containing white crystalline substance with sub-markings R-1 to R-
12; and one small size crumpled aluminum foil and small size plastic sachet. The request of P/CI
Tria for laboratory examination dated August 4, 2005 was received by a certain PO2 Abanio and
P/Insp. Sta. Cruz.[49] Subsequently, witness PSI Clemen, the forensic expert, received personally
from PO2 Abanio the above-mentioned marked pieces of evidence. She then immediately
conducted a laboratory examination, yielding a result that the 12 pieces of plastic sachets (with
markings R-1 to R-12), the one heat-sealed transparent plastic sachet with marking R and the one
aluminum foil strip contained methamphetamine hydrochloride.[50] In open court, the above-
mentioned pieces of evidence were identified and marked.[51]

From the foregoing, the prosecution, without an iota of doubt, has established the chain of
custody and integrity of the seized illegal items. The Supreme Court in People v. Sanchez,
[52]
clearly discussed how chain of custody should be proven, to wit:

As a method of authenticating evidence, the chain of custody rule requires that the
admission of an exhibit be preceded by evidence sufficient to support a finding
that the matter in question is what the proponent claims it to be. It would include
testimony about every link in the chain, from the moment the item was
picked up to the time it is offered into evidence, in such a way that every
person who touched the exhibit would describe how and from whom it was
received, where it was and what happened to it while in the witness'
possession, the condition in which it was received and the condition in which
it was delivered to the next link in the chain. These witnesses would then
describe the precautions taken to ensure that there had been no change in the
 condition of the item and no opportunity for someone not in the chain to have
possession of the same.[53]

In the instant case, the prosecution was able to present, not only the corpus delicti, but the
testimonies of the people involved in each link in the chain of custody.

The prosecution failed to prove beyond

reasonable doubt that the accused-appellants
sold 12 sachets of shabu, but it has proven the
accused-appellants' guilt beyond reasonable
doubt of possession of the same number
of shabu in violation of Section 11, Article II of
R.A. No. 9165.

Before we proceed in discussing the guilt of the couple, we must first take into account a
discrepancy in the Information for Criminal Case No. 3490. In the said information, the accused-
appellants were charged for selling 12 pieces of transparent sealed plastic sachet of shabu.
However, based on the evidence which the prosecution adduced, Emily sold to PO1 Area one
sachet of shabu, which was worth P250.00. Then, after she handed the one sachet of shabu to the
poseur-buyer, Emily received additional 12 sachets of shabu from her husband Roger and when
PO1 Area informed the couple of the buy-bust, Emily had in her possession the 12 sachets
of shabu.[54] Subsequently, the confiscated sachets of shabu were marked. The one sold to PO1
Area was marked with R, while the 12 sachets of shabu Roger handed to Emily before their
arrest were marked as R-1 to R-12.[55]

The unfortunate fact of this case is that rather than separately charging Emily for the sale of the
one sachet of shabu and charging both Emily and Roger for possession of the 12 sachets
of shabu, the public prosecutor lumped the charges together to sale of 12 sachets of shabu. This
is wrong. The Information is defective for charging the accused-appellants of selling 12 sachets
of shabu when, in fact,they should have been charged of selling one sachet of shabu and
possessing 12 sachets of shabu. From the evidence adduced, Emily and Roger never sold the 12
sachets of shabu. They possessed them. Thus, they should have not been convicted for selling the
12 sachets of shabu. However, this was exactly what was done both by the trial court and the
CA. Without basis in fact, they convicted the couple for selling the 12 sachets of shabu.

Indeed, it must be pointed out that the prosecution filed a defective Information. An Information
is fatally defective when it is clear that it does not really charge an offense[56] or when an
essential element of the crime has not been sufficiently alleged. [57] In the instant case, while the
prosecution was able to allege the identity of the buyer and the seller, it failed to particularly
allege or identify in the Information the subject matter of the sale or the corpus delicti. We must
remember that one of the essential elements to convict a person of sale of prohibited drugs is to
identify with certainty thecorpus delicti. Here, the prosecution took the liberty to lump together
two sets of corpora delicti when it should have separated the two in two different informations.
To allow the prosecution to do this is to deprive the accused-appellants of their right to be
informed, not only of the nature of the offense being charged, but of the essential element of the
offense charged; and in this case, the very corpus delicti of the crime.

Furthermore, when ambiguity exists in the complaint or information, the court has no other
recourse but to resolve the ambiguity in favor of the accused. [58] Here, since there
exists ambiguity as to the identity of corpus delicti, an essential element of the offense charged,
it follows that such ambiguity must be resolved in favor of the accused-appellants. Thus, from
the foregoing discussion, we have no other choice but to acquit the accused-appellants of sale of
12 sachets of shabu.

Truly, both the trial court and the CA were wrong in convicting the couple for selling 12 sachets
of shabu because the prosecution failed to show that the husband and wife had indeed sold the 12
sachets of shabu. Section 5, Article II of R.A. 9165 provides:

SEC. 5. Sale, Trading, Administration, Dispensation, Delivery, Distribution and

Transportation of Dangerous Drugs and/or Controlled Precursors and Essential
Chemicals. The penalty of life imprisonment to death and a fine ranging from
Five hundred thousand pesos ([P]500,000.00) to Ten million pesos
([P]10,000,000.00) shall be imposed upon any person, who, unless authorized by
law, shall sell, trade, administer, dispense, deliver, give away to another,
distribute, dispatch in transit or transport any dangerous drug, including any and
all species of opium poppy regardless of the quantity and purity involved, or shall
act as a broker in any of such transactions.

More, jurisprudence holds that the prosecution for illegal sale of dangerous drugs can only be
successful when the following elements are established, namely:

(1) the identity of the buyer and the seller, the object and consideration of the sale; and

(2) the delivery of the thing sold and the payment therefore..[59]
To our minds, while there was indeed a transaction between Emily and PO1 Area, the
prosecution failed to show that the subject matter of the sale to PO1 Area was the 12 sachets
of shabu. Based on the testimony of PO1 Area, the 12 sachets of shabu were the sachets
of shabu which Roger handed to his wife Emily and were not sold, but which PO1 Area found in
her possession after the latter identified himself as a police officer.

In People v. Paloma,[60] we acquitted the accused for the prosecution's failure to prove the crime
of illegal sale of drugs, and we have set the standard in proving the same, to wit:

Under the "objective" test set by the Court in People v. Doria,

the prosecution must clearly and adequately show the details of the
purported sale, namely, the initial contact between the poseur-buyer and the
pusher, the offer to purchase, the promise or payment of the consideration, and,
finally, the accused's delivery of the illegal drug to the buyer, whether the latter be
the informant alone or the police officer. This proof is essential to ensure that law-
abiding citizens are not unlawfully induced to commit the offense.[61]

In the instant case, PO1 Area's testimony showed no evidence that the transaction as to the sale
of the 12 sachets of shabu ever happened. Rather, PO1 Area adequately testified on the fact that
accused-appellant Roger handed the 12 sachets of shabu to Emily who kept them in a coin purse.
And after PO1 Area identified himself as a police operative, he found the 12 sachets of shabu in
Emily's possession.[62] From the foregoing, while the prosecution was able to prove the sale
of one sachet of shabu, it is patently clear that it never established with moral certainty all the
elements of illegal sale of the 12 sachets of shabu. And failure to show that indeed there was sale
means failure to prove the guilt of the accused for illegal sale of drugs, because what matters in
the prosecution for illegal sale of dangerous drugs is to show proof that the sale actually
happened, coupled with the presentation in court of corpus delicti.[63] Here, the prosecution failed
to prove the existence of the sale of the 12 sachets of shabu and also to prove that the 12 sachets
of shabu presented in court were truly the subject matter of the sale between the accused-
appellants and PO1 Area.

Notwithstanding the above-discussion, we convict both Roger and Emily of illegal possession of
prohibited drugs despite the fact that they were charged for the sale of illegal drugs, because
possession is necessarily included in sale of illegal drugs.
Section 4, Rule 120 of the Rules of Court provides:

Sec. 4. Judgment in case of variance between allegation and proof. When there is
variance between the offense charged in the complaint or information and that
proved, and the offense as charged is included in or necessarily includes the
offense proved, the accused shall be convicted of the offense proved which is
included in the offense charged, or of the offense charged which is included in the
offense proved.

Since sale of dangerous drugs necessarily includes possession of the same, the accused-
appellants should be convicted of possession. We have consistently ruled that possession of
prohibited or dangerous drugs is absorbed in the sale thereof. [64] Then Associate Justice Artemio
Panganiban logically and clearly explained the rationale behind this ruling, to wit:

The prevailing doctrine is that possession of marijuana is absorbed in the

sale thereof, except where the seller is further apprehended in possession of
another quantity of the prohibited drugs not covered by or included in the sale and
which are probably intended for some future dealings or use by the seller.

Possession is a necessary element in a prosecution for illegal sale of prohibited

drugs. It is indispensable that the prohibited drug subject of the sale be identified
and presented in court. That the corpus delicti of illegal sale could not be
established without a showing that the accused possessed, sold and delivered a
prohibited drug clearly indicates that possession is an element of the former. The
same rule is applicable in cases of delivery of prohibited drugs and giving them
away to another.[65] (Citations omitted)

For prosecution of illegal possession of dangerous drugs to prosper, the

following essential elements must be proven, namely: (1) the accused is in possession of an item
or object that is identified to be a prohibited drug; (2) such possession is not authorized by law;
and (3) the accused freely and consciously possess the said drug.[66]

All these elements are obtaining and duly established in this case and we will discuss them
thoroughly below, since we are not ready to altogether exonerate the couple.

On Emily's Liability
To our minds, the testimony of PO1 Area is sufficient to establish concurrence of all the elements
necessary to convict Emily of violating Section 11, Article II of R.A. No. 9165. PO1 Area vividly
narrated the details of the buy-bust operation. He recounted how on August 3, 2005 at around 12
noon, he acted as the poseur-buyer of shabu. He approached Emily, who was then standing in
front of their house, and told her that he would like to buy shabu, and then gave her the P250.00.
Emily then returned to her house and got a coin purse. Upon returning, Emily handed to PO1
Area a piece of sachet containing shabu. After receiving the sachet of shabu, PO1 Area saw
Roger hand the 12 sachets of shabu to Emily who kept them in a coin purse. After paying for and
receiving the sachet of shabu from Emily, PO1 Area arrested the latter and found in her
possession the 12 sachets of shabu.[67] From the foregoing, it is patently clear that the prosecution
established with moral certainty all the elements of illegal possession of shabu, that is: PO1 Area
found in Emily's physical and actual possession the 12 sachets of shabu; such possession of the
12 sachets of shabu was not authorized; and since Emily put the 12 sachets of shabu in the purse
after receiving them from her husband, she possessed the same freely and consciously.

Furthermore, PO1 Area's testimony was corroborated by the testimonies of the following:
(a) Barangay Kagawad Sarmiento who witnessed how PO1 Area caught Emily doing the illegal
act; (b) Barangay Captain Asuncion, Jr. who testified that he was with the raiding team when the
latter conducted the buy-bust operation and that he witnessed how money changed hands; (c)
P/CI Tria who witnessed the buy-bust operation and was one of the arresting officers; (d) SPO1
Aldave who executed the search warrant; and (e) Barangay Kagawad Arcilla who also
accompanied the raiding team in the search of the accused-appellants' house. All these witnesses
completed all the angles of the buy-bust operation and the search on Emily's person up to the
finding that she possessed the 12 sachets of shabu. Indeed, considering all of the above-findings
of facts, we cannot have other conclusion but to find Emily guilty beyond reasonable doubt for
possession of prohibited drugs.

Indeed, every accused deserves a second look before conviction. This is the essence of the
constitutional presumption of innocence. In the present case, we did not only take a second look
at the facts and laws of this case because the accused-appellants are both parents. We take a third,
a fourth up to a seventh look to ensure that no child will be left unattended because his parents
were imprisoned based on false accusations. Thus, after reviewing this case, the bare truth is
Emily was found in possession of 12 sachets of shabu on August 3, 2005.

On Roger's Liability
As to Roger, can we also convict him of possession of the same 12 sachets of shabu considering
that same had been found in the possession of his wife Emily?

We resolve in the affirmative.

In United States v. Juan,[68] we have clarified the meaning of the words having possession of. We
said that the said phrase included constructive possession, that is, the relation between the owner
of the drug and the drug itself when the owner is not in actual physical possession, but when it is
still under his control and management and subject to his disposition. [69] In other words, in that
case, we recognized the fact that a person remains to be in possession of the prohibited drugs
although he may not have or may have lost physical possession of the same.

To elucidate, we must go back to the circumstances surrounding the Juan case. A Chinaman
named Lee See arrived at the Bay of Calbayog, Samar through the steamer Ton-Yek. Upon
disembarking, he went to the house of therein appellant Chan Guy Juan, who was living in the
town of Calbayog. Lee See and Chan Guy Juan had a lengthy conversation. Chan Guy Juan then
hired a certain Isidro Cabinico (Cabinico) to go alongside of the steamer with his baroto, to carry
and deliver to him a sack which appellant Chan Guy Juan alleged was sugar. Cabinico went to
Lee See to get the said sack. However, on his way to the house of Chan Guy Juan, Cabinico was
arrested by the local authorities. Found in his possessions were a small amount of sugar and 28
cans of opium. The opium was confiscated and separate criminal charges were instituted against
the two Chinamen and Cabinico. After a thorough investigation, the provincial fiscal dismissed
the case against Cabinico because he had no knowledge of the content of the sack, while the two
Chinamen were eventually convicted. Chan Guy Juan appealed his conviction arguing that he did
not have actual physical possession or control of the 28 cans of opium. But we held that both
Chinese had constructive possession of the opium and that they were both guilty as principals.[70]

Our ruling in Juan applies to the present case. Admittedly, the 12 sachets of shabu were found in
the possession of Emily. But PO1 Area saw Roger hand the same 12 sachets of shabu to Emily.
While Roger had lost physical possession of the said 12 sachets of shabu, he had constructive
possession of the same because they remain to be under his control and management. In
the Juan case, Lee See gave the physical possession of the opium to Cabinico while Chan Guy
Juan had not yet received the same opium from Lee See, but both were held guilty of illegal
possession of opium. Thus, we can liken the instant case to that of Juan because while Roger had
lost physical possession of the 12 sachets of shabu to Emily, he maintained constructive
possession of the same.
Convicting both Emily and Roger of possession of illegal drugs deprives their children of
parents. But if we have to take care of our children and the family where each of us belongs, we
are obligated to put in jail all those, including fathers and mothers, who peddle illegal drugs.

Finally, we cannot let this case pass us by without emphasizing the need for the public prosecutor
to properly evaluate all the pieces of evidence and file the proper information to serve the ends of
justice. The public prosecutor must exert all efforts so as not to deny the People a remedy against
those who sell prohibited drugs to the detriment of the community and its children. Many drug
cases are dismissed because of the prosecutor's sloppy work and failure to file airtight cases. If
only the prosecution properly files the Information and prosecutes the same with precision, guilty
drug pushers would be punished to the extent allowed under the law, as in this case.

WHEREFORE, the Decision of the Court of Appeals dated June 17, 2010 is MODIFIED.
Accused-appellants ROGER POSADA and EMILY POSADA ARE FOUND GUILTY OF
ILLEGAL POSSESSION OF TWELVE (12) SACHETS OF METHAMPETAMINE
HYDROCHOLORIDE OR SHABU, WITH A NET WEIGHT OF 0.4578 GRAMS AND
ARE HEREBY SENTENCED TO THE INDETERMINATE PENALTY OF TWELVE (12)
YEARS AND ONE (1) DAY, AS MINIMUM, TO FOURTEEN (14) YEARS AND EIGHT
(8) MONTHS, AS MAXIMUM AND A FINE OF P300,000.00.

SO ORDERED.
++++++++++++

G.R. No. 199219 April 3, 2013

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
GERRY OCTAVIO Y FLORENDO and REYNALDO CARIÑO Y MARTIR, Accused-
Appellants.

VELASCO, JR.,*

DECISION

PEREZ, J.:

For review of this Court is the appeal filed by Gerry Octavio (Octavio) and Reynaldo Cariño
(Cariño) assailing the 29 March 2011 Decision1 of the Court of Appeals (CA) in CA-G.R. CR-
HC No. 03900. The CA affirmed the Decision of the Regional Trial Court (RTC), Branch 65,
Makati City finding both accused guilty of violating Article II of Republic

Act (R.A.) No.· 9165, otherwise known as the Comprehensive Drugs Act of 2002.

The Antecedents

On 21 August 2007, three (3) separate Informations were filed before the Regional Trial Court
(RTC), Makati City for violations of R.A No. 9165. The first information charges Gerry Octavio
y Florendo with violation of Section 5 thereof in the following manner:

CRIMINAL CASE NO. 07-1580

That on or about the 16th day of August, 2007, in the City of Makati, Metro Manila, Philippines
and within the jurisdiction of this Honorable Court, the above-named accused, without the
necessary license or prescription and without being authorized by law, did then and there
willfully, unlawfully and feloniously sell, deliver and give away Php200.00 worth of
[Methamphetamine] Hydrochloride (Shabu) weighing zero point zero two (0.02) gram, a
dangerous drug.2

The second information charges the same accused with violation of Section 11 of the same law
allegedly committed as follows:

CRIMINAL CASE NO. 07-1581

That on or about the 16th day of August, 2007, in the City of Makati, Metro Manila, Philippines
and within the jurisdiction of this Honorable Court, the above-named accused, not being lawfully
authorized to possess and/or use dangerous drugs and without any license or proper prescription,
did then and there willfully, unlawfully and feloniously have in his possession, custody and
control two (2) plastic sachets of Methamphetamine Hydrochloride (Shabu) each weighing zero
point zero two (0.02) gram or a total of zero point zero four (0.04) gram, which is a dangerous
drug, in violation of the aforesaid law.3

The third information charges Reynaldo Cariño y Martir (Cariño) of violating Section 11 of R.A.
No. 9165, to wit:

CRIMINAL CASE NO. 07-1582

That on or about the 16th day of August, 2007, in the City of Makati, Metro Manila, Philippines
and within the jurisdiction of this Honorable Court, the above-named accused, not being lawfully
authorized to possess and/or use dangerous drugs and without any license or proper prescription,
did then and there willfully, unlawfully and feloniously have in his possession, custody and
control two (2) plastic sachets of [Methamphetamine] Hydrochloride (Shabu) each weighing
zero point zero two (0.02) gram or a total of zero point zero four (0.04) gram, which is a
dangerous drug, in violation of the aforesaid law.4
Version of the Prosecution:

At around 7:00 o’clock in evening of 16 August 2007, an informant went to the Office of the
Makati Anti-Drug Abuse Council (MADAC) to report the alleged rampant illegal drug
trafficking activities of Gerry Octavio alias "Buboy" at Pateros Street, Barangay Olympia,
Makati City.5

On the basis of this report, an anti-narcotics team was formed to conduct a buy-bust operation
with MADAC operatives Danilo Baysa (Baysa) and Danilo Sumudlayon (Sumudlayon) as the
designated poseur-buyer and immediate back-up, respectively. Two (2) pieces of One Hundred
Peso bills were pre-marked to be utilized as buy-bust money. Proper coordination was made with
the Philippine Drug Enforcement Agency (PDEA) before the team, together with the asset,
proceeded to the target area.6

Upon arrival at the designated area, the team spotted Octavio conversing with another male
person along an alley. MADAC operative Baysa and the asset approached the duo while the rest
of the team strategically positioned themselves. The asset, who was familiar with the subject,
introduced MADAC operative Baysa as a "scorer" or user of shabu. The other male person,
however, tried to convince MADAC operative Baysa to buy shabu from him instead, at the same
time showing two (2) pieces of small heat-sealed transparent plastic sachets containing suspected
shabu. The subject then introduced his companion to MADAC operative Baysa as alias "Nano"
before asking him how much he wanted to purchase. MADAC operative Baysa intimated that he
needed ₱200.00 worth of shabu, while simultaneously handing over the marked money to the
subject who, in turn, gave him one (1) small heat-sealed transparent plastic sachet containing
suspected shabu.

The transaction having been consummated, MADAC operative Baysa executed the pre-arranged
signal to the rest of the team for assistance. Taking their cue, [PO1 Michelle V. Gimena] (PO1
Gimena) and MADAC operative Sumudlayon rushed to the scene. Meanwhile, MADAC
operative Baysa introduced himself before effecting the arrest of the subject, who was later
identified as the herein accused Gerry Octavio y Florendo. A routine body search upon his person
yielded the marked money, two (2) pieces of small plastic sachets containing suspected shabu
and another two (2) ₱100 bills. MADAC operative Sumudlayon, on the other hand, was able to
arrest alias "Nano," who was later identified as the herein accused Reynaldo Cariño y Martir.
Two (2) pieces of heat-sealed transparent plastic sachets containing the same illegal substance
were recovered from his possession.

Thereafter, both of the accused, as well as the confiscated items were brought to the SAID-SOTF
office for further investigation and later to the PNP Crime Laboratory for drug test and
examination, respectively.7

Version of the Defense

Both accused vehemently denied the charges against them. Accused Cariño maintained that at
around 6:00 c’clock in the evening of 17August 2007, he was resting inside his house when four
(4) men suddenly entered. They asked him if he was Cesar Martir, referring to his cousin who
resided next door. When he did not respond, they handcuffed and boarded him inside their
vehicle. One of those on board was MADAC operative Ed Monteza who previously invited him
to the barangay hall in connection with an investigation regarding persons suspected to be drug
peddlers within the neighborhood. Upon seeing him, MADAC Ed Monteza allegedly told his
companions that they arrested the wrong person ("Hindi iyan ang target natin.") Thus, the men
returned to the house of Cesar Martir but the latter was already nowhere in sight. They later
proceeded to the SAID-SOTF and MADAC office, passing through Pateros Street, Brgy.
Olympia, Makati City, where his co-accused Gerry Octavio was also arrested.

For his part, accused Octavio narrated that at around 6:30 o’clock in the evening of 16 August
2007, he was walking along Pateros Street on his way to the house of Sylvia Lopez. Since he
worked as a car painter, he was supposed to estimate the cost of materials needed to repaint her
vehicle. Along the way, he caught sight of an incoming Mitsubishi L-300 van. When it stopped in
front of him, two (2) armed men alighted therefrom and wanted to know where he was going.
They likewise accused him of using illegal drugs ("Siguro i-iscore ka, ano?"). Although he
denied the accusation, they handcuffed and boarded him just the same inside their vehicle. Once
inside, he saw MADAC operative Eduardo Monteza who arrested him sometime in 2003. He
likewise saw his co-accused Reynaldo Cariño already on board the van. Upon arrival at the
SAID-SOTF office, the men asked if they knew the whereabouts of Cesar Martir. They allegedly
threatened to file charges against the accused if they refused to provide any information about
him. Since the accused were unable to give any information, an investigator accordingly
produced plastic sachets of shabu which were allegedly recovered from them.8

Upon arraignment, both accused pleaded not guilty to the offenses charged. After pre-trial, trial
on the merits ensued.

Ruling of the RTC

On 23 March 2009, the trial court rendered a decision finding both accused guilty beyond
reasonable doubt of the offenses charged. In Criminal Case No. 07-1580, accused Octavio was
sentenced to suffer the penalty of life imprisonment and to pay a fine of ₱500,000.00. In
Criminal

Case No. 07-1581, he was sentenced to suffer the penalty of imprisonment of twelve (12) years
and one (1) day as minimum, to fourteen years (14) and eight (8) months as maximum and to pay
a fine of ₱300,000.00. Cariño, for his part, was sentenced in Criminal Case No. 07-1582 to suffer
the penalty of imprisonment of twelve (12) years and one (1) day as minimum, to fourteen years
(14) and eight (8) months as maximum and to pay a fine of ₱300,000.00.9

The RTC found that the prosecution succeeded in proving beyond reasonable doubt the guilt of
the two accused for violation of Sections 5 and 11, Article II, R.A. No. 9165. It ruled that the
evidence presented during the trial adequately established that a valid buy-bust operation was
conducted by the operatives of the MADAC, as well as the SAID-SOTF, Makati City on 16
August 2007 upon proper coordination with the PDEA.10 On the other hand, accused Octavio and
Cariño failed to present substantial evidence to establish their defense of frame-up. The RTC
ruled that frame-up, as advanced by the herein accused, is generally looked upon with caution by
the court because it is easy to contrive and difficult to disprove. Like alibi, frame-up as a defense
had invariably been viewed with disfavor as it is common and standard line of defense in most
prosecutions arising from violation of the Dangerous Drugs Act.11

The Ruling of the Court of Appeals

The CA affirmed the decision of the RTC, upon a finding that all of the elements of illegal sale
and illegal possession of dangerous drug have been sufficiently established by the prosecution. It
found credible the statements of prosecution witnesses Baysa, Sumudlayon and Barangay
Captain Victor Del Prado (Barangay Captain Del Prado) about what transpired during and after
the buy-bust operation. Further, it ruled that the prosecution has proven as unbroken the chain of
custody of evidence. The CA likewise upheld the findings of the trial court that the buy-bust
operation conducted enjoyed the presumption of regularity, absent any showing of ill-motive on
the part of the police operatives who conducted the same.

The CA found accused-appellants’ defenses of denial and frame-up unconvincing and lacked
strong corroboration.12

ISSUE

Accused-appellants raised in their brief a lone error on the part of the appellate court, to wit:

The court-a-quo gravely erred in finding the accused-appellants guilty beyond reasonable doubt
of the crime charged.13

Our Ruling

The appeal is bereft of merit.

Accused-appellants submit that the trial court failed to consider the procedural flaws committed
by the arresting officers in the seizure and custody of drugs as embodied in Section 21, paragraph
1, Article II, R.A. No. 9165.14Accused-appellants allege that no photograph was taken of the
items seized from them. Further, Barangay Captain Del Prado, an elected public official, was not
present during the alleged buy-bust operation. He was only asked to sign the inventory of the
seized items shortly after his arrival at the scene of the buy-bust operation. Thus, he has no
personal knowledge as to whether the drugs allegedly seized from the accused-appellants were
indeed recovered from them. Accused-appellants maintain that such failure created a cloud of
doubt as to whether the alleged shabu seized from them were the same ones forwarded by the
apprehending officers to the investigating officer, to the crime laboratory for examination and
later presented in court.15

Relevant to accused-appellants’ case is the procedure to be followed in the custody and handling
of the seized dangerous drugs as outlined in Section 21, paragraph 1, Article II, 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.

This provision is elaborated in Section 21(a), Article II of the Implementing Rules and
Regulations of R.A. No. 9165, which states:

(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
seizures; Provided, further, that non-compliance with these requirements under justifiable
grounds, as long as the integrity and the evidentiary value of the seized items are properly
preserved by the apprehending officer/team, shall not render void and invalid such seizures of
and custody over said items.

Clearly, there is nothing in the aforesaid law or its implementing rules which require the presence
of the elected public official during the buy-bust operation. It is enough that he is present during
the physical inventory immediately conducted after the seizure and confiscation of the drugs and
he signs the copies of the inventory and is given a copy thereof.

During the cross-examination by the defense counsel, Barangay Captain Del Prado testified as
follows:

Q: Mr. Witness, you mentioned it was evening time when Eduardo Monteza called you?

A: Yes, sir.

Q: What was the date again?

A: August 16 think.

Q: Am I correct to say that Eduardo Monteza called you up regarding the arrest of the suspect in
this case?

A: Yes, sir.

Q: When you proceeded to the place, it was designated by Ed Monteza, the place you would be?
A: They told me the site of apprehension because I know the place of operation, sir.

THE COURT:

Q: Where was the area of operation?

A: Pateros Street Barangay Olympia near Osmeña Street.

Q: You said that some items were shown to you, will you please enlighten us what are these
items?

A: I remember four (4) items in the inventory receipt that I signed, the first item consists of five
(5) transparent plastic sachets containing suspected shabu, one with marking ‘BUBOY’, the
subject which was bought from Buboy, then 2 plastic sachets with marking ‘BUBOY’ 1 and 2,
those recovered from the possession of the said @Buboy, then 2 items with marking ‘NANO-1’
and ‘NANO-2’ recovered from accused Reynaldo.

Q: When you proceeded to the place, did you happen to see the accused?

A: Yes, sir.

Q: What were they wearing at that time, if you can still remember?

A: I remember that Gerry was wearing sando and short.

Q: What’s the color of the sando?

A: I remember it’s white, sir.

Q: The short, what’s the color?

A: It’s maong shorts, sir.

Q: What about the other accused?

A: I remember he’s wearing white t-shirt, sir.

Q: And his lower garment?

A: I did not notice, sir, because they were then sitting.16

xxxx

In the aforesaid testimony, Barangay Captain Del Prado, not only positively identified both
accused but also identified the items contained in the inventory receipt. Such testimony clearly
established compliance with the requirement of Section 21with regard to the presence and
participation of the elected public official.

Furthermore, this Court has consistently ruled that even if the arresting officers failed to take a
photograph of the seized drugs as required under Section 21 of R.A. No. 9165, such procedural
lapse is not fatal and will not render the items seized inadmissible in evidence.17 What is of
utmost importance is the preservation of the integrity and evidentiary value of the seized items,
as the same would be utilized in the determination of the guilt or innocence of the accused.18 In
other words, to be admissible in evidence, the prosecution must be able to present through
records or testimony, the whereabouts of the dangerous drugs from the time these were seized
from the accused by the arresting officers; turned-over to the investigating officer; forwarded to
the laboratory for determination of their composition; and up to the time these are offered in
evidence. For as long as the chain of custody remains unbroken, as in this case, even though the
procedural requirements provided for in Sec. 21 of R.A. No. 9165 was not faithfully observed,
the guilt of the accused will not be affected.19

The integrity of the evidence is presumed to have been preserved unless there is a showing of
bad faith, ill will, or proof that the evidence has been tampered with. Appellants bear the burden
of showing that the evidence was tampered or meddled with in order to overcome the
presumption of regularity in the handling of exhibits by public officers and the presumption that
public officers properly discharged their duties20 Appellants in this case failed to present any
plausible reason to impute ill motive on the part of the arresting officers. Thus, the testimonies of
the apprehending officers deserve full faith and credit21 In fact, accused-appellants did not even
questioned the credibility of the prosecution witnesses. They anchored their appeal solely on the
alleged broken chain of the custody of the seized drugs.

Finally, we note and agree with the observation of the CA that the issue regarding the break in
the chain of custody of evidence was raised belatedly and only for the first time on appeal.22 In
People v. Mateo,23 this Court brushed aside the accused's belated contention that the illegal drugs
confiscated from his person was inadmissible because the arresting officers failed to comply with
Section 21 of R.A. No. 9165. Whatever justifiable grounds may excuse the police officers from
literally complying with Section 21 will remain unknown, because accused did not question
during trial the safekeeping of the items seized from him. Objection to evidence cannot be raised
for the first time on appeal; when a party desires the court to reject the evidence offered, he must
so state in the form of an objection. Without such objection, he cannot raise the question for the
first time on appeal.

On the basis of the aforesaid disquisition, we find no reason to modify or set aside the decision
of the CA.

WHEREFORE, the appeal is DENIED and the 29 March 2011 Decision of the Court of Appeals
in CA-G.R. CR-HC No. 03900 in is hereby AFFIRMED.

SO ORDERED.

+++++++++
CESAR D. CASTRO, G.R. No. 193379
Petitioner,
Present:

CARPIO,* J.
- versus - VELASCO, JR., Chairperson,
BRION,**
PERALTA, and
SERENO,*** JJ.
PEOPLE OF THE PHILIPPINES,
Respondent. Promulgated:

August 15, 2011

x-----------------------------------------------------------------------------------------x

RE S O LUTI ON

VELASCO, JR., J.:

In this Petition for Review on Certiorari under Rule 45, accused-appellant Cesar D.
Castro (Castro) assails the January 6, 2010 Decision [1] of the Court of Appeals (CA) in CA-G.R.
CR No. 31793, as effectively reiterated in its August 10, 2010 Resolution, [2] which affirmed in
toto the July 11, 2008 Decision[3] of the Regional Trial Court (RTC), Branch 16 in Laoag City, in
Criminal Case No. 10784-16. The RTC found Castro guilty of violating Sec. 11, Art. II of
Republic Act No. (RA) 9165 or the Comprehensive Dangerous Drugs Act of 2002.

Castro was charged with possession of shabu in an Information dated July 26, 2003,
the inculpatory portion of which reads:

That on or about the 25th day of July 2003 in the City of Laoag,
Philippines, and within the jurisdiction of this Honorable Court, the herein
accused did then and there willfully, unlawfully and feloniously have in his
possession, control and custody, Methamphetamine Hydrochloride, locally known
as shabu, a dangerous drug, contained in one (1) plastic sachet, weighing more or
less 0.1 gram including the plastic sachet, without any license or authority, in
violation of the aforecited law.

CONTRARY TO LAW.[4]

When arraigned, Castro pleaded not guilty to the offense charged.

At the pre-trial conference, the prosecution and the defense jointly stipulated as to the
identity of the accused, such that whenever the name Cesar Castro is mentioned, the reference is
to the accused thus charged in the information. They likewise stipulated on the issue of whether
or not the accused, when arrested on July 25, 2003, was in possession of shabu and, if
so, whether he was authorized.

Trial on the merits then ensued.

The trial court summarized the states evidence, as follows:

PO1 JONEL MANGAPIT testified that: On July 25, 2003, he was assigned in the
Intelligence and Operation Section of Laoag City Police Station at Barangay
I, Laoag City. At about 4:45, SPO2 Nestor Felipe informed them that he received
a phone call from a concerned citizen that a male person wearing green t-shirt and
brown maong bought shabu near the Iglesia Ni Cristo. Police Superintendent
Pagdilao dispatched a team of police officers composed of PO1 Inspector Aldos,
SPO3 Lagundino, SPO2 Bal and himself to verify the veracity of the report. They
rode on the black Toyota Corolla and proceeded to the place. (The Iglesia Ni
Kristo is farther west of the Police station of Laoag City at Brgy. I, along Rizal
Street). Upon reaching the Iglesia Ni Cristo church, they saw a male person with
the green description. They know his person as one of the drug personalities. He
was walking towards the east with his right hand placed on his pocket. They were
about ten (10) meters away from the accused. They approached him. The accused
panic upon recognizing them as policemen and brought something [out] from his
pocket and threw it at his back. The things thrown by the accused were plastic
sachets of shabu, lighter and a coin. They arrested the accused and he was
informed of his constitutional rights. He could not answer when he was asked
whether or not he had authority to possess illegal drug. They brought the accused
to the police station and he was indorsed to Investigation Section. The plastic
sachet of shabu was turned over to the Evidence Custodian, SPO2 Loreto
Ancheta. x x x Police Officers Aldos and Bal also saw the accused threw
something in the manner he described. It was SPO2 Bal who picked up the plastic
sachet of shabu. The accused was facing east and their vehicle was facing west.
The accused was walking. He took hold of the accused. The thing that was thrown
was 1 meter away from the back of the accused. From his experience he knew that
the content of the plastic sachet thrown by the accused was shabu. (TSN April 13,
2004, pp. 2-10) On additional examination, he confirmed that he saw the accused
making a motion of bringing out from his front pants pocket his hands causing the
dropping of an item. He likewise confirmed that the item dropped was a sachet of
shabu and it is the same item that was picked up by SPO2 Bal. He received the
sachet of shabu from Officer Bal and turned over the same to the evidence
custodian five to ten minutes after the operation. SPO3 Lagundino and Senior
Insp. Aldos were present when Officer Bal turned over the shabu to him. He
cannot remember if there was a Post Operation Report. (TSN, January 13, 2006,
pp. 13-17)

SPO2 ERNESTO BAL testified that: In the afternoon of July 25, 2003, the
complaint desk officer received a telephone call informing that a male person
wearing a green t-shirt and a brown maong pants had just bought a shabu at Brgy.
I near the Iglesia Ni Cristo. The Chief of Police x x x dispatched them to verify
the information. They rode in an unmarked vehicle x x x. When they were at
the Rizal Street, they saw a male person that matched the description given
coming from the house of the Valeriano family which is southwest of Iglesia Ni
Cristo. From a distance of about ten (10) to twelve (12) meters, they saw the male
person place his right hand into his right side pocket. When they got near the male
person, they noticed him removing his right hand from his pocket and he threw
something backward. They were more or less four (4) meters away from the
accused. PO1 Mangapit alighted and took hold of the accused. He also alighted,
went to PO1 Mangapit who told him to pick-up the thing which the accused
threw. He picked-up a plastic sachet which contained white crystalline substance.
He asked the accused if he has license or permit to possess shabu. Accused Cesar
Castro did not answer. They brought the accused together with the plastic sachet
to the police station and they delivered the plastic sachet with crystalline
substance to the evidence custodian. (TSN, December 2, 2004, pp. 2-7) On cross
examination, [he stated that] x x x When he picked up the plastic sachet it was
more or less half-meter from the accused. He heard PO1 Mangapit inform the
accused of his constitutional rights. (ibid, pp. 11-24) The distance between the
police station and the Iglesia Ni Cristo is more or less 200 meters. (TSN, March
17, 2006, p. 5) x x x He (the witness) did not mark the shabu. It was only the
evidence custodian who marked it. (ibid, p. 16)

SPO2 LORETO ANCHETA, evidence custodian of the Laoag City, PNP testified
that: In the afternoon of July 25, 2003, he received one (1) plastic sachet
containing crystalline substance from Officer Ernesto Bal. Upon receipt of the
specimen, he placed markings on the sachet of the crystalline substance. He
prepared a request addressed to Chief of Hospital of
the Laoag City General Hospital for physical and ocular examination of the
specimen. The request was signed by P/Supt. Joel Pagdilao. He delivered the
request and the specimen to Dr. Eliezer John Asuncion and waited for the result of
the physical and ocular examination. Upon receipt of the result of the
examination, he went back to the office and prepared another request for
laboratory examination addressed to the Regional Chief Chemist PNP Crime
Laboratory Service, Camp Brigidier General Oscar Florendo Parian, San
Fernando, La Union. This was signed by P/Insp. Dominic Guerrero. He brought
the specimen and the letter request to the PNP Crime
Laboratory, Camp Juan, Laoag City. It was received by P/Insp. Valeriano Panem
Laya II. (TSN, June 25, 2004, pp. 10-16)

P/INSP. VALERIANO PANEM LAYA II, testified that: As a Forensic Officer, x x

x he also holds office at the PNP Crime Laboratory, Camp Juan, Laoag City. He
remembered having received a specimen for examination with respect to a case
against Cesar Castro from Officer Loreto Ancheta (When he was asked where the
specimen was, he handed to the prosecutor the plastic sachet marked as Exhibit
D). x x x The result of his examination was that the specimen was positive for the
 presence of [shabu]. This is contained in his Chemistry Report D-327-03. Exhibit
E (TSN, February 18, 2005, pp. 10-12) On cross examination he testified that: he
weighed the specimen at San Fernando, La Union. The weight was .08 gram and
was indicated in his Report. He did not weigh the representative sample. (ibid, p.
29)[5]

The defense presented in evidence the testimonies of accused Castro and one
Rodolfo Bunnao. The RTC also summarized them, as follows:
CESAR CASTRO x x x testified that: In the afternoon of July 25, 2003, he was at
the house of Crispin Valeriano to ask for the payment of his debt. Because Crispin
Valeriano has no money, he went home taking the southward direction to the
national road west of the Iglesia Ni Cristo. He was about to cross towards the
other side of the road when a car suddenly stopped in front of him and a
policeman in the person of Ernesto Bal alighted x x x. Ernesto Bal called for him
and when he went near him Ernesto Bal immediately searched his two (2) front
pockets and x x x his back pockets but was not able to get anything. He asked
Ernest Bal why x x x. Bal told him that somebody called them telling them that he
went to the house of Crispin Valeriano to buy shabu. After he was searched he
was invited by Officer Bal to the police station to make a statement x x x. He
voluntarily went with them x x x. Officer Mangapit went out from the right side
of the car and went behind him. When he alighted from the car, Officer Mangapit
asked him, What is this? (holding something placed in a plastic) to which he
answered, I dont know. While inside their office, they undressed him and
examined thoroughly even the sleeves of his shirt as well as his pants. He claimed
that the plastic is inside and longer when Exhibit D was shown to him and that the
same was 1/3 inch wider and longer. After he was dressed-up, they placed him at
the prison cell, where he resisted. He did not see were PO Mangapit took the
plastic sachet but the latter insisted that he took it from the seat where he was
seated. On cross examination, he testified that Police Officers Bal and Mangapit
were familiar to him x x x. After the police officers conducted the investigation
and charged him of possession of shabu, they brought him to the Office of Mayor
Roger Farias, a close relative of him. The policemen did not prepare any
document stating that they did not hurt him and nothing was lost. He did not
protest when they told him to strip. (TSN, August 24, 2007, pp. 3-14)

RODOLFO BUNNAO testified that: After eating at the kitchenette and went out,
he saw Cesar Castro west of the Iglesia Ni Cristo standing when all of the sudden,
a black car stopped and two (2) men alighted from the car, went near Cesar Castro
and bodily searched him. He knew the accused x x x. About one (1) minute after
the search, they brought him inside the car proceeding west. x x x On cross
examination [he stated that] x x x [o]n July 25, 2003, there was a cockfight
in Laoag City x x x. He took his lunch at the Modern Kitchenette after he
borrowed cockfight money from Marcial Baracao east of the GSIS. Modern
Kitchenette is further west from the most western fence of the Iglesia Ni Cristo.
Two (2) men alighted from the black car one is the driver and the other one from
 the passengers side. He knew for a fact that there is another man inside the car
whom he does not know x x x. (TSN, February 15, 2008, pp. 3-6)[6]

On the main finding that the corpus delicti has been established by the open court
narrations of the Peoples witnesses and whose testimony bespoke of an unbroken chain of
custody, the RTC, in its Decision of July 11, 2008, found Castro guilty beyond reasonable doubt
of the crime charged, disposing as follows:

WHEREFORE, premises considered, and after weighing carefully the

evidence presented by the prosecution and the defense, the Court finds the
accused GUILTY beyond reasonable doubt of the crime charged.Considering that
the weight of the methamphetamine hydrochloride is less than 5 grams, he is
hereby sentenced to the penalty of TWELVE (12) YEARS and ONE (1) DAY as
minimum to TWENTY (20) YEARS as maximum and a fine of THREE
HUNDRED THOUSAND PESOS (P300,000.00) in accordance with Section 11
of R.A. 9165.

SO ORDERED.[7]

Castro appealed to the CA. Following the submission of the Appellants Brief, [8] the
Appellees Brief,[9] and Reply Brief of Accused-Appellant, [10] the CA rendered judgment
dismissing the appeal. Castro later moved for, but was denied, reconsideration.

The CA brushed aside Castros threshold defense line that he did not have, when arrested,
possession and custody of prohibited drug, the court stating in this regard that illegal drug
possession under the law includes both actual and constructive possessions. Citing the testimony
of Police Officer 1 (PO1) Mangapit, as corroborated by that of Senior Police Officer 2 (SPO2)
Bal, the CA also declared that Castro, by his prior and contemporaneous acts, had actual and
constructive possession of, or, in fine, had the intent to possess, the seized plastic sachet
containing shabu, for the plastic sachet in question was initially in Castros pants pocket but
which he tossed to the ground upon realizing that the ones about to accost him were police
officers.

Anent allegations of non-compliance by the police officers of the requirements under Sec.
21 of RA 9165[11] on inventory and photographing of the seized shabu, the CA aptly held that
failure to literally comply with said requirements is not fatal to the prosecution, if there is a clear
showing that the identity and integrity of the seized shabu specimen have been preserved, as in
the case at bar. In net effect, the CA held that the chain of custody, as the term is understood in
drug-prosecution cases, has not been broken.

In the instant appeal, accused-appellant Castro imputes error on the part of the appellate
court respecting its conclusion about the corpus delicti having been established, it being his
contention that: (1) the crucial link in the chain of custody of the alleged seized shabu had not
been established; and (2) accused-appellants possession of the drug had remained unproved. By
questioning the credibility of the prosecutions witnesses and the weight the courts a quo gave
their narration of events, accused-appellant veritably says that he was a victim of frame-up.
The appeal is bereft of merit.

As a mode of authenticating evidence, the chain of custody rule requires that the
presentation and admission of the seized prohibited drug as an exhibit be preceded by evidence
to support a finding that the matter in question is what the proponent clams it to be. [12] This
requirement is essential to obviate the possibility of substitution as well as to ensure that doubts
regarding the identity of the evidence are removed through the monitoring and tracking of the
movements and custody of the seized prohibited item, from the accused, to the police, to the
forensic laboratory for examination, and to its presentation in evidence in court.[13] Ideally, the
custodial chain would include testimony about every link in the chain or movements of the
illegal drug, from the moment of seizure until it is finally adduced in evidence. It cannot be
overemphasized, however, that a testimony about a perfect chain is almost always impossible to
obtain.[14]

A circumspect review of the evidence extant on record shows that the chain of custody
rule has been sufficiently observed. The prosecution had proved with moral certainty, thru the
testimony of their key witnessesi.e., SPO2 Bal, one of the apprehending officers; SPO2 Ancheta,
the evidence custodian; and Police Inspector Laya II, the forensic officerthat what was seized
from accused-appellant in the afternoon of July 25, 2003 near a church building in Laoag City
was the very same item presented in court after it was subjected to qualitative examination and
was tested positive for methamphetamine hydrochloride. In fine, the prosecution was able to
establish that the identity, integrity, and evidentiary value of the seized prohibited drugs have not
been compromised from the time of its seizure at the time and place aforestated to its
presentation in evidence as part of the corpus delicti.

In a prosecution involving illegal possession of prohibited/dangerous drugs, the following

elements must be proved: (1) the accused is in possession of an item or object which is identified
to be a prohibited drug; (2) such possession is not authorized by law; and (3) the accused freely
and consciously possessed the said drug. As determined by both the trial and appellate courts, the
prosecution was able to establish, through testimonial, documentary, and object evidence, the
said elements.[15] As a matter of settled jurisprudence on illegal possession of drug cases,
credence is usually accorded the narration of the incident by the apprehending police officers
who are presumed to have performed their duties in a regular manner.

Accused-appellant denies having had possession of the prohibited drug in question.

The accounts of arresting officers PO1 Mangapit and SPO2 Bal belie accused-appellants
gratuitous denial, both police officers testifying without any trace of hesitation that accused-
appellant had the sachet containing the shabu in his pocket until the moment he threw it away.
The fact that the plastic sachet containing shabu was already on the ground when the arrest was
effected is not, standing alone, an exculpating factor. What the Court said in People v. De Leon is
instructive:

Herein appellant was caught red-handed in the act of committing the

offenses for which he was charged. He made the sale in the presence of the police
operatives, the poseur-buyer and the informant. When he fled, he carried
then threw the envelope containing the regulated drugs inside the bedroom in full
view of PO1 Libuton, the pursuing arresting officer. There was therefore no need
for a warrant to arrest and search the person of appellant.[16]

In the instant case, the arresting officers, having been furnished a description of accused-
appellant from a tipster, had a reason to suspect that petitioner is in possession of the prohibited
substance. Thereafter, they witnessed in plain view accused-appellant throwing to the ground a
plastic sachet containing a white substance. The very act of throwing away the sachet, the
contents of which were later determined to be shabu, presupposes that accused-appellant had
prior possession of it. Ergo, all the elements of the crime have been met.

In People v. Isnani,[17] the Court likewise ruled the admissibility of shabu which was
thrown outside the window by the appellant in that case.

Finally, accused-appellants allegation of frame-up or planting of evidence will not avail

him any, given the categorical testimonies of PO1 Mangapit and SPO2 Bal of the events leading
to accused-appellants apprehension and eventual custodial investigation. In the absence of any
evidence that the prosecution witnesses were motivated by motives less than proper, the trial
courts assessment of the credibility of the witnesses shall not be interfered with by this Court.[18]

WHEREFORE, the petition is DENIED for lack of merit. The CAs January 6, 2010
Decision and August 10, 2010 Resolution in CA-G.R. CR No. 31793 are,
accordingly, AFFIRMED IN TOTO. Costs against accused-appellant.

SO ORDERED.

++++++++++++

G.R. No. 200748 July 23, 2014

JAIME D. DELA CRUZ, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

SERENO, CJ:
This is a Petition for Review on Certiorari, filed by petitioner Jaime D. dela Cruz, from the
Decision1 dated 22 June 2011 issued by the Twentieth Division of the Court of Appeals (CA) and
Resolution2 dated 2 February 2012 issued by the Former Twentieth Division of the CA in CA-
G.R. C.R. No. 00670.

THE ANTECEDENT FACTS

Petitioner Jaime D. dela Cruz was charged with violation of Section 15, Article II of Republic
Act No. (R.A.) 9165, or The Comprehensive Dangerous Drugs Act of 2002, by the Graft
Investigation and Prosecution Officer of the Office of the Ombudsman - Visayas, in an
Information3 dated 14 February 2006, which reads:

That on or about the 31st day of January 2006, at Cebu City, Philippines, and within the
jurisdiction of this Honorable Court, the abovenamed accused, JAIME D. DE LA CRUZ, a
public officer, having been duly appointed and qualified to such public position as Police Officer
2 of the Philippine National Police (PNP) assigned in the Security Service Group of the Cebu
City Police Office, after having beenarrested by agents of the National Bureau of Investigation
(NBI) in an entrapment operation, was found positive for use of METHAMPHETAMINE
HYDROCHLORIDEcommonly known as "Shabu", the dangerous drug after a confirmatory test
conducted on said accused.

CONTRARY TO LAW.

When arraigned, petitioner, assisted by counsel de parte, pleaded not guilty to the charge. The
records do not reveal whether De la Cruz was likewise charged for extortion.

VERSION OF THE PROSECUTION

The evidence of the prosecution reveals that at 8:00 a.m. of 31 January 2006, the agents and
special investigators of the National Bureau of Investigation, Central Visayas Regional Office
(NBI-CEVRO) or simply NBI, received a Complaint from Corazon Absin (Corazon) and Charito
Escobido (Charito). The complainants claimed that at 1:00 a.m. of that same day, Ariel Escobido
(Ariel), the live-in partner of Corazon and son of Charito, was picked up by several unknown
male persons believed to be police officers for allegedly selling drugs. An errand boy gave a
number to the complainants, and when the latter gave the number a ring, they were instructed to
proceed to the Gorordo Police Office located along Gorordo Avenue, Cebu City. In the said
police office, they met "James" who demanded from them ₱100,000, later lowered to ₱40,000, in
exchange for the release of Ariel. After the meeting, the complainants proceeded to the NBI-
CEVRO to file a complaint and narrate the circumstances of the meeting to the authorities. While
at the NBI-CEVRO, Charitoeven received calls supposedly from "James" instructing her to bring
the money as soon as possible.

The special investigators at the NBI-CEVRO verified the text messages received by the
complainants.1âwphi1 A team was immediately formed to implement an entrapment operation,
which took place inside a Jollibee branch at the corner of Gen. Maxilom and Gorordo Avenues,
Cebu City. The officers were able to nab Jaime dela Cruz by using a pre-marked 500 bill dusted
with fluorescent powder, which was made part of the amount demanded by "James" and handed
by Corazon. Petitioner was later brought to the forensic laboratory of the NBI-CEVRO where
forensic examination was done by forensic chemist Rommel Paglinawan. Petitioner was required
to submit his urine for drug testing. It later yielded a positive result for presence of dangerous
drugs as indicated in the confirmatory test result labeled as Toxicology (DangerousDrugs) Report
No. 2006-TDD-2402 dated 16 February 2006.

VERSION OF THE DEFENSE

The defense presented petitioner as the lone witness. He denied the charges and testified that
while eating at the said Jollibee branch, he was arrested allegedly for extortion by NBI agents.
When he was at the NBI Office, he was required to extract urine for drug examination, but he
refused saying he wanted it to be done by the Philippine National Police (PNP) Crime
Laboratory and not by the NBI. His request was, however, denied. He also requested to be
allowed to call his lawyer prior to the taking of his urine sample, to no avail.

THE RULING OF THE RTC

The Regional Trial Court (RTC) Branch 58 of Cebu City, in its Decision4 dated 6 June 2007,
found the accused guilty beyond reasonable doubt of violating Section 15, Article II of R.A.
9165 and sentenced him to suffer the penalty of compulsory rehabilitation for a period of not less
than six (6) months at the Cebu Center for the Ultimate Rehabilitation of Drug Dependents
located at Salinas, Lahug, Cebu City.5

Petitioner filed an appeal assigning as error the RTC’s validation of the result of the urine test
despite its dubiousness having been admitted in spite of the lack of legal basis for itsadmission.
First, he alleges that the forensic laboratory examination was conducted despite the fact that he
was not assisted by counsel, in clear violation of his constitutional right. Secondly, he was
allegedly held guilty beyond reasonable doubt notwithstanding the lack of sufficient basis to
convict him.

THE RULING OF THE CA

The CA found the appeal devoid of merit and affirmed the ruling of the RTC.

Petitioner filed a timely Motion for Reconsideration. He argued that the CA overlooked
prevailing jurisprudence, which states that drug testing conducted under circumstancessimilar to
his would violate a person’s right to privacy. The appellate court nevertheless denied the motion.

Petitioner thus filed the present Petition for Review on certiorari. He assigns as errors the use of
hearsay evidence as basis for his conviction and the questionable circumstances surrounding his
arrest and drug test.

Respondent, through the Office of the Solicitor General, filed its Comment,6 saying that
"petitioner’s arguments cannot be the subject of a petition for review on certiorariunder Rule 45,
as they involve questions of facts which may not be the subject thereof; after his arraignment, he
can no longer contest the validity of his arrest, less so at this stage of the proceedings; his guilt
has been adequately established by direct evidence; and the manner in which the laboratory
examination was conducted was grounded on a valid and existing law.

THE ISSUE

We deem it proper to give due course to this Petition by confronting head-on the issue of whether
or not the drug test conducted upon the petitioner is legal.

OUR RULING

We declare that the drug testconducted upon petitioner is not grounded upon any existing law or
jurisprudence.

We gloss over petitioner’s non-compliance with the Resolution7 ordering him to submit clearly
legible duplicate originals or certified true copies of the assailed Decision and Resolution.
Petitioner was charged with use of dangerous drugs in violation of the law, the pertinent
provision of which reads:

Section 15. Use of Dangerous Drugs. – A person apprehended or arrested, who is found to be
positive for use of any dangerous drug, after a confirmatory test, shall be imposed a penalty of a
minimum of six (6) months rehabilitation in a government center for the first offense, subject to
the provisions of Article VIII of this Act. If apprehended using any dangerous drug for the
second time, he/she shall suffer the penalty of imprisonment ranging from six (6) years and one
(1) day to twelve (12) years and a fine ranging from Fifty thousand pesos (₱50,000.00) to Two
hundred thousand pesos (₱200,000.00): Provided,That this Section shall not be applicable where
the person tested is also found to have in his/her possession such quantity of any dangerous drug
provided for under Section 11 of this Act, in which case the provisions stated therein shall apply.8

The RTC subsequently convicted petitioner, ruling that the following elements of Section 15
were established: (1) the accused was arrested; (2) the accused was subjected to drug test; and (3)
the confirmatory test shows that he used a dangerous drug.

Disregarding petitioner’s objection regarding the admissibility of the evidence, the lower court
also reasoned that "a suspect cannot invoke his right to counsel when he is required to extract
urine because, while he is already in custody, he is not compelled to make a statement or
testimony against himself. Extracting urine from one’s body is merely a mechanical act, hence,
falling outside the concept of a custodial investigation."

We find the ruling and reasoning of the trial court, as well as the subsequent affirmation by the
CA, erroneous on three counts.

The drug test in Section 15 does not cover persons apprehended or arrested for any unlawful act,
but only for unlawful acts listed under Article II of R.A. 9165.
First, "[a] person apprehended orarrested" cannot literally mean any person apprehended or
arrested for any crime.The phrase must be read in context and understood in consonance with
R.A. 9165. Section 15 comprehends persons arrested or apprehended for unlawful acts listed
under Article II of the law.

Hence, a drug test can be made upon persons who are apprehended or arrested for, among others,
the "importation,"9 "sale, trading, administration, dispensation, delivery, distribution and
transportation",10"manufacture"11 and "possession"12 of dangerous drugs and/or controlled
precursors and essential chemicals; possession thereof "during parties, social gatherings or
meetings"13 ; being "employees and visitors of a den, dive or resort";14 "maintenance of a den,
dive or resort";15 "illegal chemical diversion of controlled precursors and essential chemicals"16 ;
"manufacture or delivery"17 or "possession"18 of equipment, instrument, apparatus, and other
paraphernalia for dangerous drugs and/or controlled precursors and essential chemicals;
possession of dangerous drugs "during parties, social gatherings or meetings"19 ;
"unnecessary"20 or "unlawful"21 prescription thereof; "cultivation or culture of plantsclassified as
dangerous drugs or are sources thereof";22 and "maintenance and keeping of original records of
transactions on dangerous drugs and/orcontrolled precursors and essential chemicals."23 To make
the provision applicable to all persons arrested or apprehended for any crime not listed under
Article II is tantamount to unduly expanding its meaning. Note thataccused appellant here was
arrested in the alleged act of extortion.

A charge for violation of Section 15 of R.A. 9165 is seen as expressive of the intent of the law to
rehabilitate persons apprehended or arrested for the unlawful acts enumerated above instead of
charging and convicting them of other crimes with heavier penalties. The essence of the
provision is more clearly illustrated in People v. Martinez24 as follows:

On a final note, this Court takes the opportunity to be instructive on Sec. 11 (Possession of
Dangerous Drugs) and Sec. 15 (Use of Dangerous Drugs) of R.A. No. 9165, withregard to the
charges that are filed by law enforcers. This Court notes the practice of law enforcers of filing
charges under Sec. 11 in cases where the presence of dangerous drugs as basis for possession is
only and solely in the form of residue, being subsumed under the last paragraph of Sec. 11.
Although not incorrect, it would be more in keeping withthe intent of the law to file charges
under Sec. 15 instead in order to rehabilitate first time offenders of drug use, provided thatthere
is a positive confirmatory test result as required under Sec. 15.The minimum penalty under the
last paragraph of Sec. 11 for the possession of residue isimprisonment of twelve years and one
day, while the penalty under Sec. 15 for first time offenders of drug use is a minimum of six
months rehabilitation in a government center. To file charges under Sec. 11 on the basis of
residue alone would frustrate the objective of the law to rehabilitate drug users and provide them
with an opportunity to recover for a second chance at life.

In the case at bench, the presence of dangerous drugs was only in the form of residue on the drug
paraphernalia, and the accused were found positive for use of dangerous drugs. Granting that the
arrest was legal, the evidence obtained admissible, and the chain of custody intact, the law
enforcers should have filed charges under Sec. 15, R.A. No. 9165 or for use of dangerous drugs
and, if there was no residue at all, they should have been charged under Sec. 14 (Possession of
Equipment, Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs During Parties,
Social Gatherings or Meetings). Sec. 14 provides that the maximum penalty under Sec.
12(Possession of Equipment, Instrument, Apparatus and Other Paraphernalia for Dangerous
Drugs) shall be imposed on any person who shall possess any equipment, instrument, apparatus
and other paraphernalia for dangerous drugs. Under Sec. 12, the maximum penalty is
imprisonment of four years and a fine of ₱50,000.00. In fact, under the same section, the
possession of such equipment, apparatus or other paraphernalia is prima facieevidence that the
possessor has used a dangerous drug and shall be presumed to have violated Sec. 15.

In order to effectively fulfill the intent of the law to rehabilitate drug users, this Court thus calls
on law enforcers and prosecutors in dangerous drugs cases to exercise proper discretion in filing
charges when the presence of dangerous drugs isonly and solely in the form of residue and the
confirmatory test required under Sec. 15 is positive for use of dangerous drugs.In such cases, to
afford the accused a chance to be rehabilitated, the filing of charges for or involving possession
of dangerous drugs should only be done when another separate quantity of dangerous drugs,
other than mere residue, is found in the possession of the accused as provided for in Sec. 15.
(Emphasis supplied)

Furthermore, making the phrase "a person apprehended or arrested" in Section 15 applicable to
all persons arrested or apprehended for unlawful acts, not only under R.A. 9165 but for all other
crimes, is tantamount to a mandatory drug testing of all persons apprehended or arrested for any
crime. To overextend the application of thisprovision would run counter to our pronouncement in
Social Justice Society v. Dangerous Drugs Board and Philippine Drug Enforcement Agency,25 to
wit:

x x x [M]andatory drug testing can never be random and suspicionless. The ideas of randomness
and being suspicionless are antithetical to their being made defendants in a criminal complaint.
They are not randomly picked; neither are they beyond suspicion. When persons suspected of
committing a crime are charged, they are singled out and are impleaded against their will. The
persons thus charged, by the bare fact of being haled before the prosecutor’s office and peaceably
submitting themselves to drug testing, if that be the case, do not necessarily consent to the
procedure, let alone waive their right to privacy. To impose mandatory drug testing on the
accused is a blatant attempt to harness a medical test as a tool for criminal prosecution, contrary
to the stated objectives of RA 6195. Drug testing in this case would violate a person’s right to
privacy guaranteed under Sec. 2, Art. III of the Constitution. Worse still, the accused persons are
veritably forced to incriminate themselves. (Emphasis supplied)

The drug test is not covered by allowable non-testimonial compulsion.

We find that petitioner never raisedthe alleged irregularity of his arrest before his arraignment
and raises the issue only now before this tribunal; hence, he is deemed to have waived his right
to question the validity of his arrest curing whatever defect may have attended his
arrest.26 However, "a waiver of an illegal warrantless arrest does not mean a waiver of the
inadmissibility of evidence seized during an illegal warrantless arrest."27
We are aware of the prohibition against testimonial compulsion and the allowable exceptions to
such proscription. Cases where non-testimonial compulsion has been allowed reveal, however,
that the pieces of evidence obtained were all material to the principal cause of the arrest.

The constitutional right of an accused against self-incrimination proscribes the use of physical or
moral compulsion to extort communications from the accused and not the inclusion of his body
in evidence when it may be material. Purely mechanical acts are not included in the prohibition
as the accused does not thereby speak his guilt, hence the assistance and guiding hand ofcounsel
is not required. (People vs. Olvis, 238 Phil. 513 [1987]) The essence of the right against
selfincrimination is testimonial compulsion, that is, the giving of evidence against himself
through a testimonial act. (People vs. Casinillo, 213 SCRA 777 [1992]; People vs. Tranca, 235
SCRA 455 [1994]; People vs. Rondero, 378 Phil. 123 [1999]) Hence,it has been held that a
woman charged with adultery may be compelled to submit to physical examination to determine
her pregnancy; (Villaflor vs. Summers, 41 Phil. 62 [1920]) and an accused may be compelled to
submit to physical examination and to have a substance taken from his body for medical
determination as to whether he was suffering from gonorrhea which was contracted by his
victim;(U.S. vs. Tan Teng, 23 Phil. 145 [1912]) to expel morphine from his mouth; (U.S. vs. Ong
Siu Hong, 36 Phil. 735 [1917]) to have the outline of his foot traced todetermine its identity with
bloody footprints; (U.S. vs. Salas, 25 Phil. 337 [1913]; U.S. vs. Zara, 42 Phil. 308 [1921]) and to
be photographed or measured, or his garments or shoes removed or replaced, or to move his
body to enable the foregoing things to be done.(People vs. Otadora, 86 Phil. 244
[1950])28(Emphasis supplied)

In the instant case, we fail to see howa urine sample could be material to the charge of
extortion.1âwphi1 The RTC and the CA, therefore, both erred when they held that the extraction
of petitioner’s urine for purposes of drug testing was "merely a mechanical act, hence, falling
outside the concept of a custodial investigation."

We note a case where a urine sample was considered as admissible. In Gutang v. People,29 the
petitioner therein and his companions were arrested in connection with the enforcement of a
search warrant in his residence. A PNP-NARCOM team found and confiscated shabu materials
and paraphernalias. The petitioner and his companions in that case were also asked to give urine
samples, which yielded positive results. Later, the petitioner therein was found guilty of the
crime of illegal possession and use of prohibited drugs. Gutang claimed that the latter’s urine
sample was inadmissible in evidence, since it was derived in effect from an uncounselled
extrajudicial confession.

In the Gutang et al.case, the Court clarified that "what the Constitution prohibits is the use of
physical or moral compulsion to extort communication from the accused, but not an inclusion of
his body in evidence, when it may be material." The situation in Gutangwas categorized as
falling among the exemptions under the freedom from testimonial compulsion since what was
sought tobe examined came from the body of the accused. The Court said:

This was a mechanical act the accused was made to undergo which was not meant to unearth
undisclosedfacts but to ascertain physical attributes determinable by simple observation. In fact,
the record shows that petitioner and his co-accused were not compelled to give samples of their
urine but they in fact voluntarily gave the same when they were requested to undergo a drug test.

Assuming arguendothat the urine samples taken from the petitioner are inadmissible in evidence,
we agree with the trial court that the record is replete with other pieces of credible evidence
including the testimonial evidence of the prosecution which point to the culpability of the
petitioner for the crimes charged.

We emphasize that the circumstances in Gutangare clearly different from the circumstances of
petitioner in the instant case.1awp++i1 First, Gutang was arrested in relation to a drug case.
Second, he volunteered to give his urine. Third, there were other pieces of evidence that point to
his culpability for the crimes charged. In the present case, though, petitioner was arrested for
extortion; he resisted having his urine sample taken; and finally, his urine sample was the only
available evidencethat was used as basis for his conviction for the use of illegal drugs.

The drug test was a violation of petitioner’s right to privacy and right against self-incrimination.

It is incontrovertible that petitioner refused to have his urine extracted and tested for drugs. He
also asked for a lawyer prior to his urine test. He was adamant in exercising his rights, but all of
his efforts proved futile, because he was still compelled to submit his urine for drug testing under
those circumstances.

The pertinent provisions in Article III of the Constitution are clear:

Section 2. The right of the people to be securein their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable,
and no search warrant or warrant of arrest shall issue except upon probable cause to be
determined personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized.

Section 17. No person shall be compelled to be a witness against himself.

In the face of these constitutional guarantees, we cannot condone drug testing of all arrested
persons regardless of the crime or offense for which the arrest is being made.

While we express our commendation of law enforcement agents as they vigorously track down
offenders intheir laudable effort to curb the pervasive and deleterious effects of dangerous drugs
on our society, they must, however, be constantly mindful of the reasonable limits of their
authority, because it is not unlikely that in their clear intent to purge society of its lawless
elements, they may be knowingly or unknowingly transgressing the protected rights of its
citizens including even members of its own police force.

WHEREFORE, premises considered, the assailed Decision dated 22 June 2011 issued by the
Twentieth Division, and the Resolution dated 2 February 2012 issued by the former Twentieth
Division of the Court of Appeals, in CA-G.R. C.R. No. 00670 are SET ASIDE. Petitioner is
hereby ACQUITTED.

SO ORDERED.

++++++++++++++++++

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

PEOPLE OF THE PHILIPPINES, G.R. No. 189278

Plaintiff-Appellee,
Present:

CORONA, C.J., Chairperson,

- versus - VELASCO, JR.,
LEONARDO-DE CASTRO,
DEL CASTILLO, and

ELIZABETH MARCELINO y REYES, PEREZ, JJ.

Accused-Appellant. Promulgated:
July 26, 2010

x-----------------------------------------------------------------------------------------x

DECISION

VELASCO, JR., J.:

This is an appeal from the June 29, 2009 Decision of the Court of Appeals (CA) in CA-G.R. CR-
H.C. No. 03153 entitled People of the Philippines v. Elizabeth Marcelino y Reyes, which
affirmed the Decision in Criminal Case Nos. 3048-M-2002 and 3049-M-2002 of the Regional
Trial Court (RTC), Branch 76 in Malolos City, Bulacan. The RTC found accused-appellant
Elizabeth Marcelino guilty of violating Sections 5 and 11 of Republic Act No. (RA) 9165 or
the Comprehensive Dangerous Drugs Act of 2002.

The Facts

Two Informations charged accused-appellant as follows:

Criminal Case No. 3048-M-2002

That on or about the 31st day of October, 2002, in the Municipality of Balagtas,
Province of Bulacan, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, without authority of law and legal justification,
did then and there willfully, unlawfully and feloniously sell, trade, deliver, give
away, dispatch in transit and transport [a] dangerous drug consisting of one (1)
[heat-sealed] transparent plastic sachet of Methylamphetamine hydrochloride
(shabu) weighing 0.494 gram.[1]

Criminal Case No. 3049-M-2002

That on or about the 31st day of October, 2002, in the Municipality of Balagtas,
Province of Bulacan, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, without authority of law and legal
justification, did then and there willfully, unlawfully and feloniously have in her
possession and control [a] dangerous drug consisting of one (1) heat-sealed
transparent plastic sachet of Methylamphetamine hydrochloride (shabu) weighing
3.296 [grams].[2]

During her arraignment, accused-appellant pleaded not guilty to both charges.

The defense agreed to the following stipulations[3] during the pre-trial:

1) the qualification and competence of Forensic Analyst Amilyn Flores-

Maclid as an expert witness;

2) the existence of the request for laboratory examination signed by

Police Senior Inspector Arthur Felix Asis and received by the Bulacan
Provincial Crime Laboratory on November 1, 2002; and
 3) the existence of Chemistry Report No. D-628-02 signed by Forensic
Analyst Amilyn Flores-Maclid including the specimens examined by said
Forensic Analyst attached to the Chemistry Report contained in a brown
envelope with marking D-628-02-AFM consisting of two (2) heat-sealed
transparent plastic sachets each containing white crystalline substance
with markings and recorded net weights A(MDC-1)-0.494 gm. and
B(MDC-2)-3.296 gms., respectively.

Version of the Prosecution

At the trial, the prosecution presented SPO1 Marciano Dela Cruz[4] as its sole witness.

SPO1 Dela Cruz, a police officer stationed at the Balagtas Police Station in Bulacan, was part of
a team that conducted a test-buy on October 30, 2002 to verify a report of accused-appellant
Elizabeth engaging in illegal drug activities.[5]

When the test-buy confirmed that Elizabeth was indeed selling illegal drugs, a team was formed
to conduct a buy-bust operation. SPO1 Dela Cruz was designated as poseur-buyer. He placed his
initials MDC on a five hundred peso bill to be used as boodle money.[6]

On October 31, 2002, the buy-bust team headed for P. Castro St. Burol 1 st, Balagtas, Bulacan at
around half past seven in the evening. SPO1 Dela Cruz and his asset went to meet Elizabeth and
asked to buy shabu worth five hundred pesos (PhP 500). Once Elizabeth had handed the shabu to
SPO1 Dela Cruz, he gave the pre-arranged signal, prompting SPO3 Felix Dela Cruz to approach
them. SPO3 Dela Cruz recovered the marked PhP 500 bill and another sachet of
suspected shabu from Elizabeth. She was then apprised of her constitutional rights. SPO1 Dela
Cruz subsequently marked the sachet that was sold to him as MDC-1 and the sachet found on the
person of Elizabeth as MDC-2.[7]

A request was later submitted to the crime laboratory for a laboratory examination of the seized
substances.[8] Chemistry Report No. D-628-2002 confirmed that the subject drugs were positive
for shabu.[9]
Version of the Defense
The defense offered the testimonies of Elizabeth and tricycle driver Rodrigo Lavia, a neighbor.

In her defense, Elizabeth claimed that on October 31, 2002, she was at her home at P. Castro St.,
Burol 1st, Balagtas, Batangas with her grandson and her sister, Consuelo Reyes, when they
suddenly heard a knock at the door. When Consuelo answered the door, three men suddenly
entered the house and announced that they were police officers. [10]

Elizabeth recalled that the police officers who arrested her at her home were not the same ones
that the prosecution presented as members of the buy-bust operation. She also claimed that when
she got to the police station, a woman named Mila Trias told her, Ngayon nakikilala mo na kung
sinong kinalaban mo. According to Elizabeth, she had a quarrel with Mila because she suspected
Mila was having an affair with her husband.[11]

To corroborate Elizabeths story, Lavia testified that on October 31, 2002, at about 7:35 in the
evening, he was parked outside the house of Elizabeth. He was waiting for passengers when,
suddenly, two owner-type jeeps arrived carrying two passengers each. The passengers were all
male and dressed in civilian clothes. All headed towards Elizabeths house. Elizabeth opened the
door and the men entered the house, with the door closing behind them. From the outside, Lavia
heard Elizabeth shouting as to why the men were searching her house. He approached the house
and heard commotion inside. He heard sounds of objects falling. Later, he saw the men coming
out of the house and boarding Elizabeth into one of their vehicles.[12]

The Ruling of the Trial Court

On January 21, 2008, the RTC found Elizabeth guilty of the crimes charged based on what it
found to be the credible testimony of SPO1 Dela Cruz. In Criminal Case No. 3048-M-2002
(illegal sale of drugs), the trial court found that all the elements of the crime were established by
the prosecution with moral certainty. In Criminal Case No. 3049-M-2002 (illegal possession of
dangerous drugs), the trial court ruled that the search conducted on Elizabeth was valid under the
rule on search incidental to a lawful arrest.

The dispositive portion of the RTC Decision[13] reads:

WHEREFORE, finding the accused GUILTY beyond reasonable doubt, accused

ELIZABETH MARCELINO y REYES is hereby CONVICTED:
 [A] in Criminal Case No. 3048-M-2002, which charges accused with sale
of [a] dangerous drug consisting of one (1) heat-sealed transparent plastic sachet
of methylamphetamine hydrochloride commonly known as shabu, weighing 0.494
gram and a dangerous drug, in violation of Section 5, Article II of Republic Act
No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002,
and is SENTENCED to suffer LIFE IMPRISONMENT, and to pay the FINE of
Five Hundred Thousand Pesos (P500,000.00);

[B] in Criminal Case No. 3049-M-2002 which charges accused for

possession and control of dangerous drug consisting of one (1) heat sealed
transparent plastic sachet of methylamphetamine hydrochloride commonly known
as shabu, weighing 3.296 grams and a dangerous drug, in violation of Section 11,
Article II of Republic Act No. 9165, otherwise known as the Comprehensive
Dangerous Drugs Act of 2002, and is SENTENCED to suffer the imprisonment
of, applying the Indeterminate Sentence Law, TWELVE (12) YEARS AND ONE
DAY, AS THE MINIMUM TERM, TO THIRTEEN (13) YEARS, AS THE
MAXIMUM TERM, and to pay the FINE of Three Hundred Thousand Pesos
(P300,000.00) x x x.

The Ruling of the Appellate Court

Dissatisfied with the RTCs Decision, Elizabeth appealed to the CA, arguing that the evidence
presented against her was inadmissible, since it was acquired during her unlawful arrest. She
likewise insisted that her guilt was not proved beyond reasonable doubt.

The CA in its Decision[14] affirmed the appealed RTC Decision. The appellate court ruled
that Elizabeth was estopped from questioning the legality of her arrest, as it was being raised for
the first time on appeal. It held that even the police officers had minor lapses in complying with
Sec. 21, Art. II of RA 9165, there was still no doubt that the shabu presented during the trial was
the same substance retrieved from her.

Aggrieved, Elizabeth filed a Notice of Appeal from the CA Decision.

On December 2, 2009, this Court notified the parties that they may submit their supplemental
briefs. The People, represented by the Office of the Solicitor General (OSG), manifested that it
was dispensing with the filing of a Supplemental Brief.

The Issues
 I

WHETHER THE COURT OF APPEALS ERRED IN RULING THAT A

SEARCH WARRANT WAS NOT NECESSARY

II

WHETHER THE COURT OF APPEALS ERRED IN RULING THAT THE

INTEGRITY AND IDENTITY OF THE SHABU WAS PRESERVED

The Ruling of this Court

Accused-appellant Elizabeth reiterates that two test-buys were conducted before the actual buy-
bust operation was launched. She thus contends that after the two test-buys, the police officers
certainly had sufficient time to secure both a search warrant and a warrant of arrest but failed to
do so. She argues that a buy-bust operation should never be used as a cover for an illegal
warrantless search and arrest.

She also imputes grave doubts on whether SPO1 Dela Cruz observed the requirements of RA
9165 on inventory and photographing of the illegal substance, arguing that said police officer did
not state where and when he marked the sachets of shabu.

The OSG, on the other hand, argues that no search warrant and warrant of arrest were needed, a
buy-bust operation being recognized as a valid form of entrapment. Citing jurisprudence, the
OSG claims that it is ridiculous for the buy-bust team to first obtain a search warrant when a
crime is committed before their eyes.

As to the other contention of Elizabeth, the OSG refutes this by saying that the identity of the
seized substance was adequately established by the prosecution, as this was properly marked and
its paper trail ascertained, from the request for laboratory examination to the physical science
report on the illegal substance and the actual presentation in court.

We affirm Elizabeths conviction.

The appellate court correctly ruled that Elizabeth cannot question her arrest for the first time on
appeal. And even if we were to allow her to raise such issue, her appeal must still fail.
Search warrant and warrant of arrest not needed
 In People v. Villamin,[15] involving an accused arrested after he sold drugs during a buy-
bust operation, the Court ruled that it was a circumstance where a warrantless arrest is justified
under Rule 113, Sec. 5(a) of the Rules of Court. [16] The same ruling applies to the instant
case. When carried out with due regard for constitutional and legal safeguards, it is a judicially
sanctioned method of apprehending those involved in illegal drug activities. It is a valid form of
entrapment, as the idea to commit a crime comes not from the police officers but from the
accused himself. The accused is caught in the act and must be apprehended on the spot. From the
very nature of a buy-bust operation, the absence of a warrant does not make the arrest illegal.[17]

The illegal drug seized was not the fruit of the poisonous tree as the defense would like this
Court to believe. The seizure made by the buy-bust team falls under a search incidental to a
lawful arrest under Rule 126, Sec. 13 of the Rules of Court, which pertinently provides:

A person lawfully arrested may be searched for dangerous weapons or anything

which may have been used or constitute proof in the commission of an offense
without a search warrant.

Since the buy-bust operation was established as legitimate, it follows that the search was also
valid, and a warrant was likewise not needed to conduct it.

Chain of custody

The prosecutions failure to submit in evidence the required physical inventory and
photograph of the evidence confiscated will not result in accused-appellants acquittal of the
crimes charged. Non-compliance with the provisions of RA 9165 on the custody and disposition
of dangerous drugs is not necessarily fatal to the prosecutions case. Neither will it render the
arrest of an accused illegal nor the items seized from her inadmissible.[18]
We discussed in People v. Pagkalinawan[19] both what the law provides and the level of
compliance it requires:

Sec. 21 of the Implementing Rules and Regulations of RA 9165 provides:

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, 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:

(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
seizures; Provided, further, that non-compliance with these requirements
under justifiable grounds, as long as the integrity and 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. x x x (Emphasis supplied.)

As can be gleaned from the language of Sec. 21 of the Implementing

Rules, it is clear that the failure of the law enforcers to comply strictly with it is
not fatal. It does not render appellants arrest illegal nor the evidence adduced
against him inadmissible. What is essential is the preservation of the integrity and
the evidentiary value of the seized items, as the same would be utilized in the
determination of the guilt or innocence of the accused.

Here, the chain of custody was established through the following links: (1) SPO1 Dela Cruz
marked the seized sachet with MDC-1 for the sachet that was the subject of the buy-bust, and
MDC-2 for the sachet found on accused-appellants person; (2) a request for laboratory
examination of the seized items MDC-1 and MDC-2 was signed by Police Senior Inspector
Arthur Felix Asis; (3) the request and the marked items seized were received by the Bulacan
Provincial Crime Laboratory; (4) Chemistry Report No. D-628-02 confirmed that the marked
items seized from accused-appellant were shabu; and (5) the marked items were offered in
evidence as Exhibits C-1 and C-2.

As there is no proof to support the claim that the integrity and the evidentiary value of the
seized shabu have been compromised at some stage, we find no reason to overturn the finding of
the trial court that what were seized from Elizabeth were the same illegal drugs presented in the
trial court. As it is, there was substantial compliance with the requirements under RA 9165, and
the prosecution adequately established that there was an unbroken chain of custody over
the shabu seized from Elizabeth.

Also working against Elizabeths cause is the presumption of regularity accorded those involved
in the buy-bust operation. It is a settled rule that in cases involving violations of the Dangerous
Drugs Act, credence is given to prosecution witnesses who are police officers, for they are
presumed to have performed their duties in a regular manner, unless there is evidence to the
contrary.[20] Accused-appellant failed to overcome this presumption by showing clear and
convincing evidence that the police officers did not properly perform their duty or that they were
inspired by an improper motive.[21]

Penalty Imposed

Criminal Case No. 3048-M-2002 (illegal sale of drugs)

The penalty for sale of illegal drugs under RA 9165 is the following:

SEC. 5. Sale, Trading, Administration, Dispensation, Delivery, Distribution and

Transportation of Dangerous Drugs and/or Controlled Precursors and Essential
Chemicals. - The penalty of life imprisonment to death and a fine ranging from
Five hundred thousand pesos (P500,000.00) to Ten million pesos
(P10,000,000.00) shall be imposed upon any person, who, unless authorized by
law, shall sell, trade, administer, dispense, deliver, give away to another,
distribute, dispatch in transit or transport any dangerous drug, including any and
all species of opium poppy regardless of the quantity and purity involved, or shall
act as a broker in any of such transactions.

Criminal Case No. 3049-M-2002

RA 9165 penalizes possession of dangerous drugs as follows:

Section 11. Possession of Dangerous Drugs. - The penalty of life imprisonment to

death and a fine ranging from Five hundred thousand pesos (P500,000.00) to Ten
million pesos (P10,000,000.00) shall be imposed upon any person, who, unless
authorized by law, shall possess any dangerous drug in the following quantities,
regardless of the degree of purity thereof:

xxxx
 (5) 50 grams or more of methamphetamine hydrochloride or shabu; otherwise, if
the quantity involved is less than the foregoing quantities, the penalties shall be
graduated as follows:

xxxx

3) Imprisonment of twelve (12) years and one (1) day to twenty (20) years and a
fine ranging from Three hundred thousand pesos (P300,000.00) to Four hundred
thousand pesos (P400,000.00), if the quantities of dangerous drugs are less than
five (5) grams of opium, morphine, heroin, cocaine or cocaine hydrochloride,
marijuana resin or marijuana resin oil, methamphetamine hydrochloride or shabu,
or other dangerous drugs such as, but not limited to, MDMA or ecstasy, PMA,
TMA, LSD, GHB, and those similarly designed or newly introduced drugs and
their derivatives, without having any therapeutic value or if the quantity possessed
is far beyond therapeutic requirements; or less than three hundred (300) grams of
marijuana.

Finding the sentence handed by the lower court in both criminal cases to be within the
range provided under RA 9165, we affirm accused-appellant Elizabeths sentence for both
charges.

WHEREFORE, the appeal is DENIED. The Decision of the Court of Appeals in CA-G.R. CR-
H.C. No. 03153 finding accused-appellant guilty of violation of Secs. 5 and 11 of Article II, RA
9165 is AFFIRMED IN TOTO.

SO ORDERED.

+++++++++++

PEOPLE OF THE PHILIPPINES, G.R. No. 184760

Plaintiff-Appellee,
Present:

CARPIO, J.,
Chairperson,
BRION,
 DEL CASTILLO,
ABAD, and
- versus - PEREZ, JJ.

Promulgated:

April 23, 2010

PATERNO LORENZO y CASAS,
Defendant-Appellant.
x---------------------------------------------------x

DECISION

PEREZ, J.

Assailed in this appeal via Notice of Appeal is the 14 June 2007 Decision [1] of the Court of
Appeals in CA-GR HC No. 02184 which affirmed the 05 October 2005 Decision [2] promulgated by the
Regional Trial Court (RTC) of San Mateo, Rizal, in Criminal Case Nos. 6991-93, finding accused-
appellant Paterno Lorenzo y Casas guilty beyond reasonable doubt of violating Sections 5 and 11,
Article II, of Republic Act No. 9165, otherwise known as the Dangerous Drugs Act of 2002.[3]

Accused-appellant was arrested and charged following a buy-bust operation.

On 12 September 2003, two (2) Informations were filed against accused-appellant Paterno
Lorenzo y Casas (Lorenzo) charging him with violating Sections 5 and 11, Article II of Republic Act
No. 9165, the accusatory portions thereof reading.
 Criminal Case No. 6992
That on or about the 10th day of September 2003 in the Municipality of San
Mateo, Province of Rizal, Philippines and within the jurisdiction of this Honorable Court,
the above-named accused, not being authorized by law, did then and there willfully,
unlawfully and knowingly have in his possession, direct custody and control a total of
2.04 grams of white crystalline substance contained in two (2) heat-sealed transparent
plastic sachets which gave positive result to the test for Methylamphetamine
Hydrochloride, a dangerous drug.[4]

Criminal Case No. 6993

That on or about the 10th day of September 2003, in the Municipality of San
Mateo, Province of Rizal, Philippines and within the jurisdiction of this Honorable Court,
the above-named accused, not being authorized by law, did then and there willfully,
unlawfully and knowingly sell, deliver and give away to another 0.20 gram of white
crystalline substance contained in one (1) heat-sealed transparent plastic sachet which
gave positive result to the test for Metamphetamine Hydrochloride, a dangerous drug.[5]

The cases were raffled to Branch 76 of the RTC of San Mateo, Rizal and docketed as Criminal Case
Nos. 6992-93.

One Conrado Estanislao y Javier (Estanislao) was similarly charged in a different Information, which
case was docketed as Criminal Case No. 6991. Estanislao was accused of possessing illegal drugs in
violation of the provisions of Section 11, Article II of Republic Act No. 9165, the Information containing
the following averments:

Criminal Case No. 6994

That on or about the 10th day of September 2003, in the Municipality of San Mateo,
Province of Rizal, Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, not being authorized by law, did then and there willfully,
unlawfully and knowingly have in his possession, direct custody and control of 0.05 gram
of white crystalline substance contained in one (1) heat-sealed transparent plastic sachet
 which gave positive result to the test for Methylamphetamine Hydrochloride, a dangerous
drug.

On arraignment, both accused, with the assistance of counsel, entered NOT GUILTY pleas.

The three (3) cases having been consolidated, joint trial on the merits ensued.

The prosecution presented as its lone witness, Police Officer 1 (PO1) Noel P. Pineda, who was a
member of the buy-bust team.

The evidence for the prosecution sought to establish that on 9 September 2003, upon a series of
reports relayed by a confidential informant that a certain Paterno Lorenzo was peddling shabu in the
Barangay Dulongbayan area, the team of PO3 Pineda embarked on a buy-bust operation against said
drug peddler. Anticipating the operation, PO3 Pineda prepared two (2) pieces of marked P100.00 bills to
be used as buy-bust money. At around 10:00 oclock in the evening of the same day, PO3 Pineda, along
with SPO1 Arellano and PO3 Tougan, proceeded to Barangay Dulongbayan and secretly met with their
confidential informant. According to the confidential informant, he had not seen Lorenzo and raised the
possibility that he was not in the area at the time. Assessing the situation, the police officers instructed
the confidential informant to continue with his surveillance of the area and to inform them immediately
if he comes across Lorenzo.

At around 1:00 oclock in the morning of 10 September 2003, while PO1 Pineda and his
companions were waiting at Gen. Luna Street, the confidential informant reported that Lorenzo was
already at the Daangbakal, Dulongbayan I area and was selling prohibited drugs. Riding an unmarked
vehicle, the team proceeded to where Lorenzo was. On their arrival, Lorenzo was talking to a man at the
corner of Pulong Diablo and Daangbakal. PO3 Tougan stepped out of their vehicle and hid in a place
where he was not visible to Lorenzo. PO3 Pineda stayed close to SPO1 Arellano, who was then hiding
inside a tricycle near Lorenzo. While this was happening, the confidential informant approached
Lorenzo for the transaction. Lorenzo and the confidential informant were approximately four (4) meters
away from PO3 Pineda. Because PO3 Pineda knew who Lorenzo was and considering the place was
illuminated, PO3 Pineda recognized the suspect. The confidential informant and Lorenzo were talking
for about one minute, after which the informant gave the marked money to Lorenzo. After taking the
marked money, Lorenzo handed the shabu to the informant. PO3 Pineda and SPO1 Arellano alighted
from the tricycle and approached Lorenzo, and introduced themselves as police officers. They arrested
Lorenzo.

Upon being arrested, Lorenzo was bodily searched and PO1 Pineda was able to retrieve the
marked money and 2 other sachets of shabu from him. Seeing what had happened to Lorenzo, the man
he was talking to and later on identified as a certain Estanislao, attempted to escape the police officers
and ran, but he was soon accosted by PO3 Tougan. A search of his pockets yielded one (1) sachet of
shabu.

After the buy-bust operation, Lorenzo and Estanislao were taken to the police station where the
incident was recorded in the police blotter. The plastic sachets containing 2.04 and 0.20 grams of white
crystalline substance bought from Lorenzo was sent to the PNP Crime Laboratory for laboratory
examination. The results as contained in Chemistry Report no. D-1741-03E showed that the substance
sold by Lorenzo was positive for Methylamphetamine Hydrochloride or shabu.[6]

Interposing the twin defenses of denial and frame-up, accused-appellant Lorenzo and Estanislao
stood before the witness stand and presented their version of the facts.

Lorenzo was in his mountain bike on the way home to Dulongbayan sometime between 12:00
oclock in the evening and 1:00 oclock in the morning of 10 September 2003. Estanislao, who was also
with him at the time, was riding in his motor cross style bike and was supposed to buy food at said place
after playing tong-its.

While the two (2) were traversing Daangbakal and Delos Angeles Street, the chain on
Estanislaos bike went loose. During the time Estanislao was repairing his bike, PO3 Tougan, PO3
Pineda, and SPO1 Arellano, who were then on board an owner type jeepney, arrived and arrested
Lorenzo and Estanislao. According to the police officers, they were to be brought to the Municipal Hall.
The two (2) suspects protested, claiming not having done anything wrong but the police officers
continued with the arrest. It was later that they were informed that the arrest was for illegal drugs.

On 5 October 2005, the RTC rendered a Decision convicting Lorenzo for illegal possession and sale of
dangerous drugs, but acquitting Estanislao, disposing as follows:

WHEREFORE, judgment is hereby rendered:

(a) Finding accused Paterno Lorenzo y Casas guilty beyond reasonable doubt for
violation of Section 5, first paragraph, Article II of Republic Act No. 9165 (Criminal
Case No. 6993) or illegal selling of 0.20 gram of methylamphetamine hydrochloride
(shabu), a dangerous drug, and is sentenced to suffer the penalty of life imprisonment
and to pay a fine of Five Hundred Thousand Pesos (P500,000.00).

(b) Finding accused Paterno Lorenzo y Casas guilty beyond reasonable doubt for
Violation of Section 11, second paragraph, No.3, Article II of Republic Act No. 9165
(Criminal Case No. 6992) or illegal possession of 2.04 gram of methylamphetamine
hydrochloride (shabu), a dangerous drug, and is sentenced to suffer imprisonment of
Twelve (12) years and one (1) day as minimum to Twelve years and six (months) as
maximum and to pay a fine of Three Hundred Thousand Pesos (P300,000.00).

(c) Finding accused Conrado Estanislao y Javier, for violation of Section 11, second
paragraph, sub paragraph 3, Article II of Republic Act No. 9165, NOT GUILTY for
failure of the prosecution to prove his guilt beyond reasonable doubt.

Detained accused Conrado Estanislao y Javier is ordered released from detention at the
San Mateo Jail unless detained for some other lawful cause.

The plastic sachets of shabu subject matter of the instant cases are ordered forfeited in
favor of the government and the Officer-In-Charge of the Court is hereby ordered to
safely deliver or cause the safe delivery of the same to the Philippine Drug Enforcement
Agency (PDEA) for proper disposition.[7]
 Weighing the testimonies of the prosecution and defense witnesses, as well as the other evidence
presented during trial, the trial court gave more veracity to the prosecutions version that Lorenzo was
caught in flagrante delicto selling illegal drugs to a poseur-buyer during a buy-bust operation. The trial
court gave credence to the prosecutions evidence in accordance with the presumption of regularity in the
performance of official functions accorded to police officers. According to the trial court, the
prosecution proved beyond reasonable doubt the identity of the buyer in the buy-bust operation and the
seller, object and consideration, including the delivery of the shabu sold by Lorenzo and the payment of
the buy-bust money.

Invoking his innocence, Lorenzo appealed his conviction to the Court of Appeals, questioning
the procedure followed by the police operatives in the seizure and custody of the evidence against him.

On 14 June 2007, the Court of Appeals affirmed the judgment of conviction rendered by the
RTC, disposing to wit:

WHEREFORE, premises considered, appeal is hereby dismissed and the assailed October
5, 2005 Decision of the Regional Trial Court of San Mateo Rizal, Branch 76, in Criminal
Case Nos. 6991-93, is hereby AFFIRMED.

Pursuant to Section 13 (C), Rule 124 of the 2000 Rules of Criminal Procedure, as
amended by AM No. 00-5-03-SC dated September 28, 2004, which became effective on
October 15, 2004. This judgment of the Court of Appeals may be appealed to the
Supreme Court by notice of appeal filed with the Clerk of Court of the Court of Appeals.

SO ORDERED.

Unyielding, Lorenzo appealed before this Court on Notice of Appeal, [8] adopting the same
arguments raised before the Court of Appeals:

I.
 THE COURT A QUO ERRED IN FINDING ACCUSED-APPELLANT GUILTY
BEYOND REASONABLE DOUBT OF VIOLATION OF SECTIONS 5 AND 11,
REPUBLIC ACT NO. 9165; AND

II.
THE COURT A QUO GRAVELY ERRED IN NOT GIVING WEIGHT AND
CREDENCE TO ACCUSED-APPELLANTS DEFENSE OF DENIAL.

The presumption of innocence of an accused in a criminal case is a basic constitutional principle,

fleshed out by procedural rules which place on the prosecution the burden of proving that an accused is
guilty of the offense charged by proof beyond reasonable doubt. Corollary thereto, conviction must rest
on the strength of the prosecutions evidence and not on the weakness of the defense.

In fact, if the prosecution fails to meet the required quantum of evidence, the defense may
logically not even present evidence on its behalf. In which case, the presumption of innocence shall
prevail and, hence, the accused shall be acquitted. However, once the presumption of innocence is
overcome, the defense bears the burden of evidence to show reasonable doubt as to the guilt of the
accused.

Whether the degree of proof has been met is largely left for the trial courts to be determined.
Consistent with the rulings of this Court, it is but a fundamental and settled rule that factual findings of
the trial court and its calibration of the testimonies of the witnesses and its conclusions anchored on its
findings are accorded by the appellate court high respect, if not conclusive effect, more so when
affirmed by the Court of Appeals. The exception is when it is established that the trial court ignored,
overlooked, misconstrued or misinterpreted cogent facts and circumstances which, if considered, will
change the outcome of the case. Considering that what is at stake here is the liberty of accused-
appellant, we have carefully reviewed and evaluated the records of the case and find it necessary to
reverse the appellate courts decision convicting accused-appellant.
 Essentially, Lorenzo questions his conviction on the basis of reasonable doubt. The defense
anchors its claim on the failure of the prosecution to adopt the required procedure under Section 21,
Article II, Republic Act No. 9165, on the custody and disposition of confiscated, seized, or surrendered
dangerous drugs. According to the defense, this alleged failure to follow proper procedure, i.e. inventory
and photographing of the retrieved evidence, raises doubts as to whether the specimen examined by the
forensic chemist and presented in court were indeed retrieved from accused-appellant. The defense also
faults the police operatives for not having coordinated with the PDEA regarding the buy-bust.

Thus, for resolution by this Court is the sole issue of whether the prosecution discharged its
burden of proving Lorenzos guilt beyond reasonable doubt for the crime charged.

We rule in the negative. The prosecutions case fails for failure to establish the identity of the
prohibited drug with moral certainty.

In order to successfully prosecute an accused for illegal sale of drugs, the prosecution must be
able to prove the following elements: (1) identities of the buyer and seller, the object, and the
consideration; and (2) the delivery of the thing sold and the payment therefor. [9] Material to the
prosecution for illegal sale of dangerous drugs is the proof that the transaction or sale had actually taken
place, coupled with the presentation in court of evidence of corpus delicti.[10] The term corpus
delicti means the actual commission by someone of the particular crime charged.

On the other hand, in illegal possession of dangerous drugs, the elements are: (1) the accused is
in possession of an item or object which is identified to be a prohibited drug; (2) such possession is not
authorized by law; and (3) the accused freely and consciously possessed the said drug. Similarly, in this
case, the evidence of the corpus delicti must be established beyond doubt.

In both illegal sale and illegal possession of prohibited drugs, conviction cannot be sustained if
there is a persistent doubt on the identity of the drug. The identity of the prohibited drug must be
established with moral certainty. Apart from showing that the elements of possession or sale are present,
the fact that the substance illegally possessed and sold in the first place is the same substance offered in
court as exhibit must likewise be established with the same degree of certitude as that needed to sustain
a guilty verdict.

While buy-bust operations have been proven to be an effective way to flush out illegal
transactions that are otherwise conducted covertly and in secrecy, a buy-bust operation is susceptible to
police abuse. Thus, courts have been mandated to be extra vigilant in trying drug cases lest an innocent
person is made to suffer the unusually severe penalties for drug offenses.

Taking the aforementioned into consideration, specific procedures relating to the seizure and
custody of drugs have been laid down under the Implementing Rules and Regulations (IRR) for
Republic Act No. 9165 and it is the prosecutions burden to adduce evidence that these procedures have
been complied with in proving the elements of the offense.

The procedure for the custody and disposition of confiscated, seized and/or surrendered
dangerous drugs, among others, is provided under Section 21 (a), paragraph 1 of Article II of Republic
Act No. 9165, to wit:

(a) 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;

Section 21 (a), Article II of the Implementing Rules and Regulations of Republic Act No. 9165,
which implements said provision, reads:

(a) 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;
Provided, further that non-compliance with these requirements under justifiable
grounds, as long as the integrity and the evidentiary value of the seized items are
properly preserved by the apprehending officers/team, shall not render void and
invalid such seizures of and custody over said items.

Section 21(a), Article II of the IRR offers some flexibility in complying with the express
requirements. Indeed, the evident purpose of the procedure is the preservation of the integrity and
evidentiary value of the seized items, as the same would be utilized in the determination of the guilt of
or innocence of the accused. Thus, the proviso stating that non-compliance with the stipulated
procedure, under justifiable grounds, shall not render void and invalid such seizures of and custody over
said items, for as long as the integrity and evidentiary value of the seized items are properly preserved
by the apprehending officers.

In People v. Sanchez,[11] we clarified that this saving clause applies only where the prosecution
recognized the procedural lapses, and thereafter explained the cited justifiable grounds.

Accused-appellant claims that no physical inventory and no photographing of the drugs took
place. Non-compliance by the police operatives with the foregoing requirements in the instant case is
fatal to the prosecutions case. Although the prosecution recognized its failure to coordinate with the
PDEA because of the urgency of the situation, it ignored the issue of specifically identifying the
prohibited drug at the point of confiscation. There is absolutely nothing in the records to show that the
inventory and photography requirements, or their credible substitute to prove integrity and evidentiary
value, were ever followed.

In People v. Lim,[12] this Court held:

xxx any apprehending team having initial custody and control of said drugs and/or
paraphernalia, should immediately after seizure and confiscation, have the same
physically inventoried and photographed in the presence of the accused, if there be any,
and or his representative, who shall be required to sign the copies of the inventory and be
given a copy thereof. The failure of the agents to comply with such a requirement raises a
doubt whether what was submitted for laboratory examination and presented in court was
actually recovered from the appellants. It negates the presumption that official duties
have been regularly performed by the PAOC-TF agents.
 In Bondad, Jr. v. People,[13] where the prosecution did not inventory and photograph the
confiscated evidence, this Court acquitted therein accused reasoning that failure to comply with the
aforesaid requirements of the law compromised the identity of the items seized.

In People v. Ruiz,[14] this Court acquitted accused due to the failure of the prosecution to comply
with the procedures under Republic Act No. 9165 and its IRR as no physical inventory was ever made,
and no photograph of the seized items was taken under the circumstances required.

In People v. Orteza,[15] the Court explained the implications of the failure to comply with
Paragraph 1, Section 21, Article II of Republic Act No. 9165, to wit:
In People v. Laxa, where the buy-bust team failed to mark the confiscated
marijuana immediately after the apprehension of the accused, the Court held that the
deviation from the standard procedure in anti-narcotics operations produced doubts as to
the origins of the marijuana. Consequently, the Court concluded that the prosecution
failed to establish the identity of the corpus delicti.
The Court made a similar ruling in People v. Kimura, where the Narcom
operatives failed to place markings on the seized marijuana at the time the accused was
arrested and to observe the procedure and take custody of the drug.
More recently, in Zarraga v. People, the Court held that the material
inconsistencies with regard to when and where the markings on the shabu were made and
the lack of inventory on the seized drugs created reasonable doubt as to the identity of
the corpus delicti. The Court thus acquitted the accused due to the prosecution's failure to
indubitably show the identity of the shabu.

To reiterate, the flexibility offered by the IRR of Republic Act No. 9165 is coupled with the
proviso that the integrity and evidentiary value of the seized items must be preserved.
 Thus, in Malillin v. People,[16] the Court explained that the chain of custody requirement
performs this function in that it ensures that unnecessary doubts concerning the identity of the evidence
are removed. The chain of evidence is constructed by proper exhibit handling, storage, labeling and
recording, and must exist from the time the evidence is found until the time it is offered in evidence.
[17]
Failure to prove that the specimen submitted for laboratory examination was the same one allegedly
seized from accused is fatal to the prosecutions case. There can be no crime of illegal possession or
illegal sale of a prohibited drug when nagging doubts persist on whether the item confiscated was the
same specimen examined and established to be the prohibited drug.[18]

PO1 Pineda testified that it was their confidential agent who purchased the shabu from accused-
appellant and that he only retrieved it from said informant. He further testified that he marked the
retrieved sachet of shabu together with the two other sachets of shabu that were allegedly seized from
the accused, but it was not certain when and where the said marking was done nor who had specifically
received and had custody of the specimens thereafter.

The Court also observes that the prosecution did not present the poseur-buyer who had personal
knowledge of the transaction. The lone prosecution witness was at least four meters away from where
accused-appellant and the poseur-buyer were. From this distance, it was impossible for him to hear the
conversation between accused-appellant and the poseur-buyer.

The foregoing facts and circumstances create doubt as to whether the sachets of shabu allegedly
seized from accused-appellant were the same ones that were released to Camp Crame and submitted for
laboratory examination. We therefore find that this failure to establish the evidences chain of custody is
damaging to the prosecutions case.[19]
 In sum, the totality of the evidence presented in the instant case failed to support accused-
appellants conviction for violation of Sections 5 and 11, Article II, Republic Act No. 9165, since the
prosecution failed to prove beyond reasonable doubt all the elements of the offense.

Accordingly, the presumption of innocence should prevail.

WHEREFORE, the assailed Court of Appeals Decision dated 14 June 2007 in CA-G.R. CR-
H.C. No. 02184, is hereby REVERSED and SET ASIDE. Accused-appellant PATERNO LORENZO y
CASAS is hereby ACQUITTED for failure of the prosecution to prove his guilt beyond reasonable
doubt. He is ordered immediately RELEASED from detention, unless he is confined for any other
lawful cause.

Let a copy of this Decision be furnished the Director of the Bureau of Corrections, Muntinlupa City for
immediate implementation. The Director of the Bureau of Corrections is directed to report to this Court
within five days from receipt of this Decision the action he has taken. Copies shall also be furnished the
Director General, Philippine National Police, and the Director General, Philippine Drugs Enforcement
Agency, for their information.

SO ORDERED.
+++++++++++++
PEOPLE OF THE PHILIPPINES, G.R. No. 187070
Plaintiff-Appellee,
Present:

PUNO, C.J., Chairperson,

CARPIO MORALES,
- versus - LEONARDO-DE CASTRO,
BERSAMIN, and
VILLARAMA, JR., JJ.

ROLANDO TAMAYO y TENA, Promulgated:

Accused-Appellant.
February 24, 2010
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

VILLARAMA, JR., J.:

For review is the Decision [1] dated April 21, 2008 of the Court of Appeals in CA-
G.R. CR-H.C. No. 01850, which affirmed the Joint Decision [2] dated December 27, 2005 of
the Regional Trial Court (RTC) of Quezon City, Branch 103 in Criminal Case Nos. Q-03-
117407 and Q-03-117408. The trial court convicted appellant Rolando Tamayo y Tena of
violation of Sections 5 [3] and 11[4] of Article II of Republic Act No. 9165 [5] and sentenced
him to suffer the penalty of life imprisonment and to pay the fine of P500,000.00 in Criminal
Case No. Q-03-117407, and to suffer the penalty of life imprisonment and to pay the fine
of P500,000.00 in Criminal Case No. Q-03-117408.

The appellant was charged in two (2) Informations,[6] which read as follows:

Crim. Case No. Q-03-117407

That on or about the 17th day of May, 2003, in Quezon City, Philippines,
the said accused, not being authorized by law to sell, dispense, deliver, transport
or distribute any dangerous drug, did, then and there, wilfully and unlawfully sell,
dispense, deliver, transport, distribute or act as broker in the said transaction,
twelve point seventeen (12.17) grams of dried marijuana leaves a dangerous drug.

CONTRARY TO LAW.

Crim. Case No. Q-03-117408

That on or about the 17th day of May, 2003, in Quezon City, Philippines,
the said accused not being authorized by law to possess or use any dangerous
drug, did then and there, wilfully, unlawfully and knowingly have in her/his/their
possession and control, one thousand four hundred ninety one point five (1,491.5)
grams of marijuana fruiting tops, a dangerous drug.

CONTRARY TO LAW.

Upon arraignment on June 30, 2003, the appellant pleaded not guilty to the charges
against him.[7] Thereafter, trial ensued.
The prosecution presented as witnesses Police Officers Andres Nelson Sy and Cesar C. Collado
of Police Station 4, Novaliches, Quezon City. They testified that on May 17, 2003 at around 5:30
p.m., a confidential informant arrived at the station and reported that a certain Ronnie was selling
marijuana at Pilarin Street, Barangay Gulod, Novaliches, Quezon City. At once, a team was
created to conduct a buy-bust operation in the reported area. PO3 Sy was designated as the
poseur-buyer, while PO2 Collado, Police Superintendent Noli Wong and one (1) other police
officer were assigned as back-ups. PO3 Sy placed his initials ANS on a one hundred peso
(P100.00) bill, which would be used as the buy-bust money. Then the team and the confidential
informant proceeded to the target area.[8]

At around 7:00 p.m., PO3 Sy and the confidential informant went to the appellants house, while
PO2 Collado and the other officers remained inside their vehicle, about ten (10) to fifteen (15)
meters away from the house. After the informant introduced PO3 Sy to the appellant, PO3 Sy
was allowed to enter the house. Once inside, PO3 Sy told the appellant that he is interested in
buying marijuana.The appellant asked PO3 Sy to wait. The appellant then went to the stairs and
took a bag which was colored blue, green and pink. The appellant placed the bag on a table and
took out a tea bag supposedly containing dried marijuana. PO3 Sy gave the P100.00 buy-bust
money to the appellant, who in turn handed him the tea bag. Right after the exchange, PO3 Sy
introduced himself as a police officer and placed the appellant under arrest. Thereafter, the
confidential informant went out of the house, which was the pre-arranged signal that the sale of
illegal drugs was already consummated. [9]PO3 Sy likewise testified that at the time he was
transacting with the appellant, there were people playing video karera inside the house and that
those people scampered away when he arrested the appellant.[10]

PO2 Collado testified that as soon as he saw the confidential informant go out of the house,
he approached PO3 Sy who was already holding the appellant. PO2 Collado examined the bag and
discovered dried marijuana leaves inside, but it was PO3 Sy who recovered the buy-bust money
and other plastic sachets containing dried marijuana fruiting tops from the appellant. Afterwards,
the appellant was brought to the police station together with the confiscated dried marijuana
fruiting tops. There were eight (8) plastic sachets containing marijuana fruiting tops recovered
from the appellant aside from the dried marijuana contents of the bag.[11]

On cross-examination, PO3 Sy testified that it was his first time to meet the appellant. He
likewise testified that during the time he was dealing with the appellant, there were other people
inside the house.[12] On the other hand, PO2 Collado testified that he was at a distance of about
fifteen (15) meters from the appellants house when the illegal sale took place. Right after he saw
the confidential informant running out of the house, he immediately approached PO3 Sy. [13] PO3
Sy and PO2 Collado positively identified the appellant and the dried marijuana leaves in open
court.[14] PO3 Sy identified the tea bag containing marijuana through his initials, ANS.[15]

The testimony of Forensic Chemist Yelah C. Manaog, who examined the substance and prepared
the report, was dispensed with, considering that the parties had stipulated that the report was duly
accomplished after the substance examined by the crime laboratory yielded positive to the test
for marijuana, a dangerous drug.[16]

The defense, for its part, presented the appellant as its sole witness. He testified that he was
with his daughter inside his house at No. 18 Pilarin Street, Barangay Gulod, Novaliches, Quezon
City at around 3:00 to 4:00 in the afternoon of May 17, 2003, when someone barged into his house
and pointed a gun at him. He asked the person, who later turned out to be a police officer, what was
going on but he did not get any answer. He was then forcibly dragged out of his house, made to
board a van, and brought to Police Station 4 in Novaliches, Quezon City. He further testified that at
the police station, he was put inside a detention cell. He denied the allegations of the prosecution.[17]

On cross-examination, the appellant testified that he worked as a mason while his wife is a
manicurist. They have two (2) children who are still toddlers. He also narrated that at the time he was
arrested, his wife was not in their house and he sought the help of his sister, Baby, who lives right
beside them. According to him, Baby did not ask the police officers the reason for his arrest.[18]

On December 27, 2005, the trial court found the evidence of the prosecution sufficient to prove
the appellants guilt beyond reasonable doubt and rendered a decision of conviction in Criminal
Case Nos. Q-03-117407 and Q-03-117408.

The dispositive portion of the trial courts joint decision reads:

WHEREFORE, in view of the foregoing disquisitions, judgment is hereby

rendered finding accused Rolando Tamayo y Tena GUILTY beyond reasonable
doubt of the crimes of drug pushing and of drug possession and he is hereby
sentenced, as follows:

1. In Criminal Case No. Q-03-117407, accused Rolando Tamayo y Tena is

hereby sentenced to suffer Life Imprisonment and to pay a fine of
P500,000.00.

2. In Criminal Case No. Q-03-117408, accused Rolando Tamayo y Tena is

hereby likewise sentenced to suffer Life Imprisonment and to pay a fine
of P500,000.00 in view of the large quantity of marijuana involved.
 The drugs involved in this case are hereby ordered transmitted to the PDEA
thru DDB for proper disposition.

SO ORDERED.[19]

The appellant appealed to the Court of Appeals, [20] which, however, sustained the trial
courts judgment of conviction.

Hence, the present appeal.

On June 10, 2009, we required the parties to submit their supplemental briefs if they so
desired. The Office of the Solicitor General (OSG), however, opted not to file its supplemental
brief, while the appellant adopted his brief filed with the Court of Appeals. In his brief, the
appellant interposed the following arguments:
I.
THE COURT A QUO GRAVELY ERRED IN CONVICTING THE ACCUSED-
APPELLANT OF THE CRIMES CHARGED DESPITE THE FACT THAT HIS
GUILT WAS NOT PROVEN BEYOND REASONABLE DOUBT.
II.
THE COURT A QUO GRAVELY ERRED IN NOT GIVING WEIGHT AND
CREDENCE TO THE EVIDENCE ADDUCED BY THE DEFENSE.[21]

Simply stated, the issue is whether the appellant is guilty beyond reasonable doubt of violating
Rep. Act No. 9165.

Appellant denies the charges against him and insists that he was merely inside his house with his
three (3)-year old daughter and doing nothing illegal when the alleged buy-bust operation
happened. He suggests that he was the victim of a frame-up as it is well known that some law
enforcers engage in anomalous practices such as planting evidence, physical torture and
extortion to extract information from suspected drug dealers or even to harass civilians. He
laments the fact that his testimony was not given weight and that the trial court found his version
difficult to accept. He insists that the presumption of innocence prevails over the presumption of
regularity in the performance of duty and contends that his guilt was not proven beyond
reasonable doubt.[22]

For the State, the OSG maintains that the prosecution had established all the elements of an illegal
sale of prohibited drugs, viz: (1) the appellant sold and delivered a prohibited drug to another, and
(2) he knew that what he had sold and delivered was a dangerous drug. The facts show that the
appellant sold and delivered marijuana to PO3 Sy who posed as a buyer. The marijuana that was
seized and identified as a prohibited drug was subsequently presented in evidence. Moreover, the
OSG maintains that witnesses PO2 Collado and PO3 Sy positively identified the appellant as the
perpetrator of the crime. The records do not disclose any ill-motive on their part to falsely accuse
the appellant of an atrocious crime.[23]

We affirm the appellants conviction.

It is a settled rule that in cases involving violations of the Comprehensive Dangerous

Drugs Act, credence is given to prosecution witnesses who are police officers for they are
presumed to have performed their duties in a regular manner, unless there is evidence to the
contrary.[24] In this case, no evidence was adduced showing any irregularity in any material aspect
of the conduct of the buy-bust operation. Neither was there any proof that the prosecution
witnesses who were members of the buy-bust operation team, particularly those whose
testimonies were in question, were impelled by any ill-feeling or improper motive against the
appellant which would raise a doubt as to their credibility.

In a prosecution for illegal sale of dangerous drugs, the following elements must first be
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. In a prosecution for illegal possession of a
dangerous drug, it must be shown that (1) the accused was in possession of an item or an object
identified to be a prohibited or regulated drug, (2) such possession is not authorized by law, and
(3) the accused was freely and consciously aware of being in possession of the drug.[25]

Here, the prosecution was able to prove the existence of all the elements of the illegal
sale and illegal possession of marijuana. The appellant was positively identified by the
prosecution witnesses as the person who possessed and sold the marijuana presented in court. In
his testimony, PO3 Sy categorically stated that he bought the marijuana from the appellant. In
addition, it was duly established that the sale actually took place and more marijuana was
discovered in appellants possession pursuant to a lawful arrest. The marked money used in the
buy-bust operation was likewise duly presented.Furthermore, the marijuana seized from the
appellant was positively and categorically identified in open court.[26]
 We give credence to the straightforward testimony of prosecution witness PO3 Andres
Nelson Sy, which clearly established that an illegal sale of marijuana actually took place and that
the appellant was the seller, thus:
FIS. ARAULA;
You said that you are a police officer, do you remember where were you
sometime in M[a]y 17, 2003, mr. witness?
WITNESS:
At police station 4, Novaliches, Quezon City sir.
FIS. ARAULA;
What time you reported to Police station 4 on May 17, 2003, mr. witness?
WITNESS:
I reported for work at about 8:00 in the morning sir.
FIS. ARAULA;
While at the police station, what happened, mr. witness?
WITNESS:
An informant arrived about 5:30 in the afternoon sir.
FIS. ARAULA;
What was the informant relayed, mr. witness?
WITNESS:
There was somebody selling marijuana at Pilarin Street, Brgy. Gulod,
Novaliches, Quezon City through our Superior Wong sir.

FIS. ARAULA;
Was this confidential informant male or female, mr. witness?
WITNESS:
Male sir.
FIS. ARAULA;
After receiving that information of illegal activities, what action did your office
take, mr. witness?
WITNESS:
Our chief call us to conduct a buy bust operation, Wong, De Guzman, Collado and
I sir.
FIS. ARAULA;
After you were called, what happened next, mr. witness?

WITNESS:
I was told that I am the one who will buy marijuana sir.
FIS. ARAULA;
How much marijuana, mr. witness?
WITNESS:
One hundred peso sir.
FIS. ARAULA;
Where did you get the money to buy marijuana, mr. witness?
WITNESS:
From our Superior Wong sir.
FIS. ARAULA;
How about the other police officers, what is their role in that buy bust operation,
mr. witness?
WITNESS:
They were my back up sir.
FIS. ARAULA;
Where you informed who was the subject of the buy bust operation, mr. witness?
WITNESS:
Yes sir.
FIS. ARAULA;
What is the name, mr. witness?
WITNESS:
He was called as Ronnie, but later we came to know him as Rolando Tamayo sir.
FIS. ARAULA;
After you were tasked as the poseur buyer and received the one hundred peso bill
as buy bust money, what happened next, mr. witness?
WITNESS:
I first placed my initial ANS on top of the date 2001 sir.
FIS. ARAULA;
To that one hundred peso bill, mr. witness?
WITNESS:
Yes sir.
FIS. ARAULA;
You said you placed your initial on top of the date 2001, showing to you this one
hundred peso bill can you show to us where is that marking that you are
telling, now. Mr. witness?
WITNESS:
Here under 2001, ANS sir.
FIS. ARAULA;
May we request that this one hundred peso bill with serial no. BH359720 which
was already marked as Exhibit G and we request that the marking placed by
this witness as Exhibit G-1 your honor.
After you placed your markings, what happened next, mr. witness?
WITNESS:
We went to the place the confidential informant was with me in the vehicle and
my companions were boarded in the van following us sir.
FIS. ARAULA;
What time you reached this Barangay Gulod, mr. witness?
WITNESS:
7:00 in the evening sir.
FIS. ARAULA;
Can you tell us what particular place at Barangay Gulod that you went to, mr.
witness?
WITNESS:
Pilarin Street, Brgy. Gulod, Novaliches, Quezon City sir.
FIS. ARAULA;
What happened when you reached that placed, mr. witness?

WITNESS:
We alighted from the motorcycle and we went to the compound with open gate,
we proceeded to the place that was tuktuk that can be seen by my companions
sir.
FIS. ARAULA;
What happened when you entered the compound mr. witness?
WITNESS:
We enter the house of Rolando Tamayo sir.
FIS. ARAULA;
How were you able to enter the house, mr. witness?
WITNESS:
My confidential informant introduced me to the subject and I was allowed to enter
the house sir.
FIS. ARAULA;
Where was Rolando Tamayo whom you mentioned when you were introduced,
mr. witness?
WITNESS:
I saw Rolando Tamayo at the sala it so happened there was a video carera inside
sir.
FIS. ARAULA;
Where were you when you were introduced to Rolando Tamayo, mr. witness?
WITNESS:
I was beside the front door the[n] I came in later sir.
FIS. ARAULA;
Where was Tamayo, mr. witness?
WITNESS:
He was at the sala of the house sir.
FIS. ARAULA:
You were in the door of the house of Tamayo while Tamayo was inside the house
at the living room, mr. witness?
WITNESS:
Yes sir.
FIS. ARAULA;
When you entered the house, what happened, mr. witness?

WITNESS:
After I was introduced, I told him I will buy marijuana, Sir.
FIS. ARAULA;
What was the answer of Tamayo after informing him that you are interested in
buying marijuana, mr. witness?
WITNESS:
He told me sige, wait for me sir.
FIS. ARAULA;
Where was your confidential informant, mr. witness?
WITNESS:
He was there also sir.
FIS. ARAULA;
You testified that Tamayo said wait for me, what happened next, mr. witness?
WITNESS:
He went to the stairs of the house he got [the] bag pack colored blue green and
pink sir.
FIS. ARAULA;
How far were you from Tamayo, mr. witness?
WITNESS:
2 to 4 meters sir
FIS. ARAULA;
After that T[a]mayo able to get that bag, what did he do with that bag, mr.
witness?
WITNESS:
I he put down on the table and got a tea bag sir.
FIS. ARAULA;
What did he with that tea bag, mr. witness?
WITNESS:
I gave one hundred peso bill and I got the tea bag sir.
FIS. ARAULA;
Can you described that tea bag, mr. witness?
WITNESS:
Small only sir.
COURT
We are presenting to you bag, see inside, what tea bag you are referring to?
FIS. ARAULA;
Witness is searching the bag
COURT;
Officer Sy searched the bag inside and he could not find tea bag, he found big
marijuana but not tea bag.
The court interpreter found 8 tea bags.
WITNESS:
This is the tea bag I bought from Rolando Tamayo sir.
FIS. ARAULA;
How did you know that is the same tea bag, mr. witness?
WITNESS:
 Because of the initial that I placed sir, ANS.
FIS. ARAULA;
May we request your honor that said initial be marked as Exhibit E-2 your honor.
After you received that tea bag in exchanged to one hundred peso bill, what
happened next, mr. witness?
WITNESS:
That is the time I arrested him and introduced as police officer sir.
FIS. ARAULA;
How [about] the bag that you testified under the stairs from where he got the tea
bag, mr. witness?
WITNESS:
In the sala sir.
FIS. ARAULA;
What did you do next, mr. witness?
WITNESS:
After I arrested him my companions who were outside the house at that time rush
toward the house sir.
FIS. ARAULA;
Who were your companions, mr. witness?
WITNESS:
Collado was the first who entered and got the bag pack sir.
FIS. ARAULA;
What happened next, mr. witness?
WITNESS:
When I arrested Tamayo, my companions get the bag pack and get the one
hundred peso bill that I gave him earlier sir.[27]

The RTC, as upheld by the Court of Appeals, found that the testimonies of the
prosecution witnesses were unequivocal, definite and straightforward. More importantly, their
testimonies were consistent in material respects with each other and with other testimonies and
physical evidence.

We have held that trial courts have the distinct advantage of observing the demeanor and
conduct of witnesses during trial. Hence, their factual findings are accorded great weight, absent
any showing that certain facts of relevance and substance bearing on the elements of the crime
have been overlooked, misapprehended or misapplied.[28]

With respect to the penalty, we affirm the penalties imposed by the RTC and the Court of
Appeals for the illegal sale and illegal possession of dangerous drugs, as the penalties are fully in
accord with the provisions of Sections 5 and 11 of Rep. Act No. 9165, which provide:
SEC. 5. Sale, Trading, Administration, Dispensation, Delivery, Distribution and
Transportation of Dangerous Drugs and/or Controlled Precursors and Essential
Chemicals.The penalty of life imprisonment to death and a fine ranging from Five
hundred thousand pesos (P500,000.00) to Ten million pesos (P10,000,000.00)
shall be imposed upon any person, who, unless authorized by law, shall sell, trade,
administer, dispense, deliver, give away to another, distribute, dispatch in transit
or transport any dangerous drug, including any and all species of opium poppy
regardless of the quantity and purity involved, or shall act as a broker in any of
such transactions.
xxxx
SEC. 11. Possession of Dangerous Drugs.The penalty of life imprisonment to
death and a fine ranging from Five hundred thousand pesos (P500,000.00) to Ten
million pesos (P10,000,000.00) shall be imposed upon any person, who, unless
authorized by law, shall possess any dangerous drug in the following quantities,
regardless of the degree of purity thereof:
xxxx
(7) 500 grams or more of marijuana; and

xxxx

WHEREFORE, the Decision dated April 21, 2008 of the Court of Appeals in CA-G.R.
CR-H.C. No. 01850 finding appellant Rolando Tamayo y Tena guilty beyond reasonable doubt of
the crimes charged in Criminal Case Nos. Q-03-117407 and Q-03-117408 for violation of
Sections 5 and 11 of Rep. Act No. 9165 is AFFIRMED.

With costs against the accused-appellant.

++++++++++
G.R. No. 191366 December 13, 2010

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
ARNOLD MARTINEZ Y NGELES, EDGAR DIZON Y FERRER, REZIN MARTINEZ Y
CAROLINO, and RAFAEL GONZALES Y CUNANAN, Accused-Appellants.

DECISION

MENDOZA, J.:

This is an appeal from the August 7, 2009 Decision1 of the Court of Appeals (CA), in CA-G.R.
HC-NO. 03269, which affirmed the February 13, 2008 Decision2 of the Regional Trial Court,
Branch 41, Dagupan City (RTC), in Criminal Case No. 2006-0525-D, finding the accused guilty
of violating Section 13, in relation to Section 11, Article II of Republic Act No. 9165 for
Possession of Dangerous Drugs During Parties, Social Gatherings or Meetings.

The Facts

The Information indicting the accused reads:

That on or about the 2nd day of September 2006, in the City of Dagupan, Philippines, and within
the jurisdiction of this Honorable Court, the above-named accused, ARNOLD MARTINEZ y
ANGELES, EDGAR DIZON y FERRER, REZIN MARTINEZ y CAROLINO, ROLAND
DORIA y DIAZ and RAFAEL GONZALES y CUNANAN, without authority of law,
confederating together, acting jointly and helping one another, did then and there wilfully,
unlawfully and criminally, sniff and possess dangerous drugs (shabu residues) contained in
empty plastic sachets and rolled aluminum foil, during a party, or at a social gathering or
meeting, or in the proximate company of at least two (2) person[s].

Contrary to Section 13, Article II, R.A. 9165.3

Version of the Prosecution

As culled from the testimonies of prosecution witnesses, Police Officer 1 Bernard Azardon (PO1
Azardon), one of the apprehending officers, and Police Inspector Lady Ellen Maranion (P/Insp.
Maranion), the forensic chemical officer, it appears that on September 2, 2006, at around 12:45
o’clock in the afternoon, PO1 Azardon was on duty at the Police Community Precinct II along
Arellano Street, Dagupan City, when a concerned citizen entered the precinct and reported that a
pot session was going on in the house of accused Rafael Gonzales (Gonzales) in Trinidad
Subdivision, Dagupan City. Upon receipt of the report, PO1 Azardon, PO1 Alejandro Dela Cruz
(PO1 Dela Cruz), and members of the Special Weapons and Tactics (SWAT) team hied to
Trinidad Subdivision, Dagupan City. Upon inquiry from people in the area, the house of
Gonzales was located.
As the police officers entered the gate of the house, they saw accused Orlando
Doria (Doria) coming out of the side door and immediately arrested him. Inside the house, they
saw accused Gonzales, Arnold Martinez (A. Martinez), Edgar Dizon (Dizon), and Rezin
Martinez (R. Martinez) in a room. The four were surprised by the presence of the police. In front
of them were open plastic sachets (containing shabu residue), pieces of rolled used aluminum
foil and pieces of used aluminum foil.

The accused were arrested and brought to the police precinct. The items found in the room were
seized and turned over to the Pangasinan Provincial Police Crime Laboratory Officer, P/Insp.
Maranion. The latter conducted a laboratory examination on the seized items and all 115 plastic
sachets, 11 pieces of rolled used aluminum foil, and 27 of the 49 pieces of used aluminum foil
tested positive for methamphetamine hydrochloride. The accused were subjected to a drug test
and, except for Doria, they were found to be positive for methamphetamine hydrochloride.

Version of the Defense

The defense, through its witnesses, accused A. Martinez, Dizon, and R. Martinez, claimed that in
the morning of September 2, 2006, the three of them were along Arellano Street in Trinidad
Subdivision, Dagupan City, to meet with a certain Apper who bumped the passenger jeep of R.
Martinez and who was to give the materials for the painting of said jeep. As they were going
around the subdivision looking for Apper, they saw Gonzales in front of his house and asked him
if he noticed a person pass by. While they were talking, Doria arrived. It was then that five to
seven policemen emerged and apprehended them. They were handcuffed and brought to the
police station in Perez, Dagupan City, where they were incarcerated and charged with sniffing
shabu.

The Ruling of the RTC

The case against Doria was dismissed on a demurrer to evidence.

On February 13, 2008, the RTC rendered its decision, the dispositve portion of which reads:

WHEREFORE, premises considered, judgment is hereby rendered finding accused ARNOLD

MARTINEZ y Angeles, EDGAR DIZON y Ferrer, REZIN MARTINEZ y Carolino, and
RAFAEL GONZALES y Cunanan GUILTY beyond reasonable doubt of the crime of Possession
of Dangerous Drugs During Parties, Social Gatherings or Meetings defined and penalized under
Section 13 in relation to Section 11, Article II of Republic Act 9165, and each of them is
sentenced to suffer the penalty of life imprisonment and to pay the fine in the amount of
P500,000.00, and to pay the cost of suit.

The subject items are hereby forfeited in favor of the government and to be disposed of in
accordance with the law.

SO ORDERED.4
The RTC was of the view that the positive testimony of prosecution witness PO1 Azardon,
without any showing of ill-motive on his part, prevailed over the defenses of denial and alibi put
up by the accused. The accused were held to have been in constructive possession of the subject
items. A conspiracy was also found present as there was a common purpose to possess the
dangerous drug.

The Ruling of the CA

The CA ruled that there was sufficient evidence to support the findings of the RTC as to the
constructive possession of the dangerous drugs by the accused. It further held that although the
procedure regarding the custody and disposition of evidence prescribed by Section 21 of R.A.
No. 9165 was not strictly complied with, the integrity and evidentiary value of the evidence were
nonetheless safeguarded. The CA was of the view that the presumption of regularity in the
performance of official duty was not sufficiently controverted by the accused.

Not in conformity, the accused now interposes this appeal before this Court praying for the
reversal of the subject decision, presenting the following

Assignment of Errors

For accused Arnold Martinez, Edgar Dizon and Rezin Martinez

1. The lower court erred in finding the accused-appellants to be having a pot session
at the time of their arrest;

2. The lower court erred in not seeing through the antics of the police to plant the
shabu paraphernalia to justify the arrest of the accused-appellants without warrant;

3. The lower court erred in not finding that the corpus delicti has not been
sufficiently established;

4. The lower court erred in not finding the uncorroborated testimony of PO1
Azardon insufficient to convict the accused-appellants of the crime charged;

5. The lower court erred in not acquitting the accused-appellants.

For accused Rafael Gonzales

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT

DESPITE THE PROSECUTION’S FAILURE TO OVERTHROW THE CONSTITUTIONAL
PRESUMPTION OF INNOCENCE.

II
THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT
DESPITE THE PROSECUTION’S FAILURE TO ESTABLISH THE CHAIN OF CUSTODY
OF THE ALLEGED CONFISCATED DRUG.

After an assiduous assessment of the evidentiary records, the Court finds that the prosecution
failed to prove the guilt of the accused. The principal reasons are 1] that the evidence against the
accused are inadmissible; and 2] that granting the same to be admissible, the chain of custody
has not been duly established.

Illegal Arrest, Search and Seizure

Indeed, the accused is estopped from assailing the legality of his arrest if he fails to raise such
issue before arraignment.5 However, this waiver is limited only to the arrest. The legality of an
arrest affects only the jurisdiction of the court over the person of the accused. A waiver of an
illegal warrantless arrest does not carry with it a waiver of the inadmissibility of evidence seized
during the illegal warrantless arrest.6

Although the admissibility of the evidence was not raised as in issue by the accused, it has been
held that this Court has the power to correct any error, even if unassigned, if such is necessary in
arriving at a just decision,7 especially when the transcendental matter of life and liberty is at
stake.8 While it is true that rules of procedure are intended to promote rather than frustrate the
ends of justice, they nevertheless must not be met at the expense of substantial justice. Time and
again, this Court has reiterated the doctrine that the rules of procedure are mere tools intended to
facilitate the attainment of justice, rather than frustrate it. Technicalities should never be used to
defeat substantive rights.9 Thus, despite the procedural lapses of the accused, this Court shall rule
on the admissibility of the evidence in the case at bench. The clear infringement of the accused’s
right to be protected against unreasonable searches and seizures cannot be ignored.

The State cannot, in a manner contrary to its constitutional guarantee, intrude into the persons of
its citizens as well as into their houses, papers and effects.10 Sec. 2, Art. III, of the 1987
Constitution provides:

Section 2. - The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures of whatever nature and for any purpose shall be
inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to
be determined personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized.

This constitutional guarantee, however, is not a blanket prohibition against all searches and
seizures without warrant. Arrests and seizures in the following instances are allowed even in the
absence of a warrant — (i) warrantless search incidental to a lawful arrest;11 (ii) search of
evidence in "plain view;" (iii) search of a moving vehicle; (iv) consented warrantless search; (v)
customs search; (vi) stop and frisk; and (vii) exigent and emergency circumstances.12
This case would appear to fall under either a warrantless search incidental to a lawful arrest or a
plain view search, both of which require a lawful arrest in order to be considered valid
exceptions to the constitutional guarantee. Rule 113 of the Revised Rules of Criminal Procedure
provides for the circumstances under which a warrantless arrest is lawful. Thus:

Sec. 5. Arrest without warrant; when lawful. – A peace officer or a private person may, without a
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;

(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; and

(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or 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.

In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall
be forthwith delivered to the nearest police station or jail and shall be proceeded against in
accordance with section 7 of Rule 112.

A review of the facts reveal that the arrest of the accused was illegal and the subject items were
confiscated as an incident thereof. According to the testimony of PO1 Azardon and his Joint
Affidavit13 with PO1 Dela Cruz, they proceeded to, and entered, the house of accused Gonzales
based solely on the report of a concerned citizen that a pot session was going on in said house, to
wit:

Q: I go back to the information referred to you by the informant, did he not tell you how
many persons were actually conducting the pot session?

A: Yes, sir.

Q: When you went to the place of Rafael Gonzales, of course you were not armed with a
search warrant, correct?

A: None, sir.

Q: Before the information was given to you by your alleged informant, you did not know
personally Rafael Gonzales?

A: I have not met [him] yet but I heard his name, sir.
Q: When this informant told you that he was told that there was [an] ongoing pot session
in the house of Rafael Gonzales, was this report to you placed in the police blotter before
you proceeded to the house of Rafael Gonzales?

A: I think it was no longer recorded, sir.

Q: In other words, you did not even bother to get the personal data or identity of the
person who told you that he was allegedly informed that there was an ongoing pot session
in the house of Rafael Gonzales?

A: What I know is that he is a jeepney driver of a downtown jeepney but he does not
want to be identified because he was afraid, sir.

Q: And likewise, he did not inform you who told him that there was an ongoing pot
session in the house of Rafael Gonzales?

A: No more, sir.

Q: But upon receiving such report from that jeepney driver you immediately formed a
group and went to the place of Rafael Gonzales?

A: Yes, sir.

xxx

Q: When you were at the open gate of the premises of Rafael Gonzales, you could not see
what is happening inside the house of Rafael Gonzales?

A: Yes, sir.

Q: You did not also see the alleged paraphernalia as well as the plastic sachet of shabu on
the table while you were outside the premises of the property of Rafael Gonzales?

xxx

Q: Before they entered the premises they could not see the paraphernalia?

COURT: Answer.

A: Of course because they were inside the room, how could we see them, sir.

Q: But still you entered the premises, only because a certain person who told you that he
was informed by another person that there was an ongoing pot session going on inside the
house of Rafael Gonzales?

A: Yes, sir.
 Q: And that is the only reason why you barged in inside the house of Rafael Gonzales and
you arrested the persons you saw?

A: Yes, sir.14

Paragraph (c) of Rule 113 is clearly inapplicable to this case. Paragraphs (a) and (b), on the other
hand, may be applicable and both require probable cause to be present in order for a warrantless
arrest to be valid. Probable cause has been held to signify a reasonable ground of suspicion
supported by circumstances sufficiently strong in themselves to warrant a cautious man’s belief
that the person accused is guilty of the offense with which he is charged.15

Although this Court has ruled in several dangerous drugs cases16 that tipped information is
sufficient probable cause to effect a warrantless search,17 such rulings cannot be applied in the
case at bench because said cases involve either a buy-bust operation or drugs in transit, basically,
circumstances other than the sole tip of an informer as basis for the arrest. None of these drug
cases involve police officers entering a house without warrant to effect arrest and seizure based
solely on an informer’s tip. The case of People v. Bolasa18 is informative on this matter.

In People v. Bolasa, an anonymous caller tipped off the police that a man and a woman were
repacking prohibited drugs at a certain house. The police immediately proceeded to the house of
the suspects. They walked towards the house accompanied by their informer. When they reached
the house, they peeped inside through a small window and saw a man and woman repacking
marijuana. They then entered the house, introduced themselves as police officers, confiscated the
drug paraphernalia, and arrested the suspects. This Court ruled:

The manner by which accused-appellants were apprehended does not fall under any of the
above-enumerated categories. Perforce, their arrest is illegal. First, the arresting officers had no
personal knowledge that at the time of their arrest, accused-appellants had just committed, were
committing, or were about to commit a crime. Second, the arresting officers had no personal
knowledge that a crime was committed nor did they have any reasonable ground to believe that
accused-appellants committed it. Third, accused-appellants were not prisoners who have escaped
from a penal establishment.

Neither can it be said that the objects were seized in plain view. First, there was no valid
intrusion. As already discussed, accused-appellants were illegally arrested. Second, the
evidence, i.e., the tea bags later on found to contain marijuana, was not inadvertently discovered.
The police officers intentionally peeped first through the window before they saw and
ascertained the activities of accused-appellants inside the room. In like manner, the search cannot
be categorized as a search of a moving vehicle, a consented warrantless search, a customs search,
or a stop and frisk; it cannot even fall under exigent and emergency circumstances, for the
evidence at hand is bereft of any such showing.

On the contrary, it indicates that the apprehending officers should have conducted first a
surveillance considering that the identities and address of the suspected culprits were already
ascertained. After conducting the surveillance and determining the existence of probable cause
for arresting accused-appellants, they should have secured a search warrant prior to effecting a
valid arrest and seizure. The arrest being illegal ab initio, the accompanying search was likewise
illegal. Every evidence thus obtained during the illegal search cannot be used against accused-
appellants; hence, their acquittal must follow in faithful obeisance to the fundamental law.19

It has been held that personal knowledge of facts in arrests without warrant must be based upon
probable cause, which means an actual belief or reasonable grounds of suspicion. The grounds of
suspicion are reasonable when the suspicion, that the person to be arrested is probably guilty of
committing an offense, is based on actual facts, that is, supported by circumstances sufficiently
strong in themselves to create the probable cause of guilt of the person to be arrested. 20

As to paragraph (a) of Section 5 of Rule 113, the arresting officers had no personal knowledge
that at the time of the arrest, accused had just committed, were committing, or were about to
commit a crime, as they had no probable cause to enter the house of accused Rafael Gonzales in
order to arrest them. As to paragraph (b), the arresting officers had no personal knowledge of
facts and circumstances that would lead them to believe that the accused had just committed an
offense. As admitted in the testimony of PO1 Azardon, the tip originated from a concerned
citizen who himself had no personal knowledge of the information that was reported to the
police:

Q: Mr. Witness, you claimed that the reason for apprehending all the accused was based
on a tip-off by an informant?

A: Yes, sir.

Q: What exactly [did] that informant tell you?

A: He told us that somebody told him that there was an ongoing pot session in the house
of one of the accused Rafael Gonzales, sir.

Q: You mean to say that it was not the informant himself to whom the information
originated but from somebody else?

A: That was what he told me, sir.

Q: Because of that you proceeded to where the alleged pot session was going on? [No
Answer]

Q: Did you[r] informant particularly pinpointed [sic] to where the alleged pot session was
going on?

A: No more because he did not go with us, sir.

Q: So you merely relied on what he said that something or a pot session was going on
somewhere in Arellano but you don’t know the exact place where the pot session was
going on?
 A: Yes, sir.

Q: And your informant has no personal knowledge as to the veracity of the alleged pot
session because he claimed that he derived that information from somebody else?

A: This is what he told us that somebody told him that there was an ongoing pot session,
sir.

Q: Despite of [sic] that information you proceeded to where?

A: Trinidad Subdivision, sir.

xxx

Q: Mr. Witness, did your informant named [sic] those included in the alleged pot session?

A: No, sir.

Q: That was, because your informant don’t [sic] know physically what was really
happening there?

A: He was told by another person that there was an ongoing pot session there,
sir.21 [Emphasis supplied]

Neither can it be said that the subject items were seized in plain view. The elements of plainview
are: (a) a prior valid intrusion based on the valid warrantless arrest in which the police are legally
present in the pursuit of their official duties; (b) the evidence was inadvertently discovered by the
police who have the right to be where they are; (c) the evidence must be immediately apparent;
and, (d) "plain view" justified mere seizure of evidence without further search.22

The evidence was not inadvertently discovered as the police officers intentionally entered the
house with no prior surveillance or investigation before they discovered the accused with the
subject items. If the prior peeking of the police officers in Bolasa was held to be insufficient to
constitute plain view, then more so should the warrantless search in this case be struck down.
Neither can the search be considered as a search of a moving vehicle, a consented warrantless
search, a customs search, a stop and frisk, or one under exigent and emergency circumstances.

The apprehending officers should have first conducted a surveillance considering that the
identity and address of one of the accused were already ascertained. After conducting the
surveillance and determining the existence of probable cause, then a search warrant should have
been secured prior to effecting arrest and seizure. The arrest being illegal, the ensuing search as a
result thereof is likewise illegal. Evidence procured on the occasion of an unreasonable search
and seizure is deemed tainted for being the proverbial fruit of a poisonous tree and should be
excluded.23 The subject items seized during the illegal arrest are thus inadmissible. The drug,
being the very corpus delicti of the crime of illegal possession of dangerous drugs, its
inadmissibility thus precludes conviction, and calls for the acquittal of the accused.
As has been noted previously by this Court, some lawmen, prosecutors and judges have glossed
over illegal searches and seizures in cases where law enforcers are able to present the alleged
evidence of the crime, regardless of the methods by which they were obtained. This attitude
tramples on constitutionally-guaranteed rights in the name of law enforcement. It is ironic that
such enforcement of the law fosters the breakdown of our system of justice and the eventual
denigration of society. While this Court appreciates and encourages the efforts of law enforcers
to uphold the law and to preserve the peace and security of society, we nevertheless admonish
them to act with deliberate care and within the parameters set by the Constitution and the law.24

Chain of Custody

Even granting that the seized items are admissible as evidence, the acquittal of the accused
would still be in order for failure of the apprehending officers to comply with the chain of
custody requirement in dangerous drugs cases.

The accused contend that the identity of the seized drug was not established with moral certainty
as the chain of custody appears to be questionable, the authorities having failed to comply with
Sections 21 and 86 of R.A. No. 9165, and Dangerous Drug Board (DDB) Resolution No. 03,
Series of 1979, as amended by Board Regulation No. 2, Series of 1990. They argue that there
was no prior coordination with the Philippine Drug Enforcement Agency (PDEA), no inventory
of the confiscated items conducted at the crime scene, no photograph of the items taken, no
compliance with the rule requiring the accused to sign the inventory and to give them copies
thereof, and no showing of how the items were handled from the time of confiscation up to the
time of submission to the crime laboratory for testing. Therefore, the corpus delicti was not
proven, thereby producing reasonable doubt as to their guilt. Thus, they assert that the
presumption of innocence in their favor was not overcome by the presumption of regularity in
the performance of official duty.

The essential requisites to establish illegal possession of dangerous drugs are: (i) the accused was
in possession of the dangerous drug, (ii) such possession is not authorized by law, and (iii) the
accused freely and consciously possessed the dangerous drug.25 Additionally, this being a case
for violation of Section 13 of R.A. No. 9165, an additional element of the crime is (iv) the
possession of the dangerous drug must have occurred during a party, or at a social gathering or
meeting, or in the proximate company of at least two (2) persons.

The existence of the drug is the very corpus delicti of the crime of illegal possession of
dangerous drugs and, thus, a condition sine qua non for conviction. In order to establish the
existence of the drug, its chain of custody must be sufficiently established. The chain of custody
requirement is essential to ensure that doubts regarding the identity of the evidence are removed
through the monitoring and tracking of the movements of the seized drugs from the accused, to
the police, to the forensic chemist, and finally to the court.26 Malillin v. People was the first in a
growing number of cases to explain the importance of chain of custody in dangerous drugs cases,
to wit:

As a method of authenticating evidence, the chain of custody rule requires that the admission of
an exhibit be preceded by evidence sufficient to support a finding that the matter in question is
what the proponent claims it to be. It would include testimony about every link in the chain, from
the moment the item was picked up to the time it is offered into evidence, in such a way that
every person who touched the exhibit would describe how and from whom it was received,
where it was and what happened to it while in the witness' possession, the condition in which it
was received and the condition in which it was delivered to the next link in the chain. These
witnesses would then describe the precautions taken to ensure that there had been no change in
the condition of the item and no opportunity for someone not in the chain to have possession of
the same.27

Section 1(b) of DDB Regulation No. 1, Series of 2002,28 defines chain of custody as follows:

b. "Chain of Custody" means 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. 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 used in court as evidence, and the final disposition;

Paragraph 1, Section 21, Article II of R.A. No. 9165, provides for safeguards for the protection
of the identity and integrity of dangerous drugs seized, 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.

People v. Habana thoroughly discusses the proper procedure for the custody of seized or
confiscated items in dangerous drugs cases in order to ensure their identity and integrity, as
follows:

Usually, the police officer who seizes the suspected substance turns it over to a supervising
officer, who would then send it by courier to the police crime laboratory for testing. Since it is
unavoidable that possession of the substance changes hand a number of times, it is imperative for
the officer who seized the substance from the suspect to place his marking on its plastic container
and seal the same, preferably with adhesive tape that cannot be removed without leaving a tear
on the plastic container. At the trial, the officer can then identify the seized substance and the
procedure he observed to preserve its integrity until it reaches the crime laboratory.

If the substance is not in a plastic container, the officer should put it in one and seal the same. In
this way the substance would assuredly reach the laboratory in the same condition it was seized
from the accused. Further, after the laboratory technician tests and verifies the nature of the
substance in the container, he should put his own mark on the plastic container and seal it again
with a new seal since the police officer’s seal has been broken. At the trial, the technician can
then describe the sealed condition of the plastic container when it was handed to him and testify
on the procedure he took afterwards to preserve its integrity.

If the sealing of the seized substance has not been made, the prosecution would have to present
every police officer, messenger, laboratory technician, and storage personnel, the entire chain of
custody, no matter how briefly one’s possession has been. Each of them has to testify that the
substance, although unsealed, has not been tampered with or substituted while in his care.29

Section 21(a) of the Implementing Rules and Regulations (IRR) of R.A. No. 9165 further
elaborates, and provides for, the possibility of non-compliance with the prescribed procedure:

(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
seizures; Provided, further that non-compliance with these requirements under justifiable
grounds, as long as the integrity and the evidentiary value of the seized items are properly
preserved by the apprehending officer/team, shall not render void and invalid such seizures of
and custody over said items. [Emphasis supplied]

Accordingly, non-compliance with the prescribed procedural requirements will not necessarily
render the seizure and custody of the items void and invalid, provided that (i) there is a justifiable
ground for such non-compliance, and (ii) the integrity and evidentiary value of the seized items
are properly preserved. In this case, however, no justifiable ground is found availing, and it is
apparent that there was a failure to properly preserve the integrity and evidentiary value of the
seized items to ensure the identity of the corpus delicti from the time of seizure to the time of
presentation in court. A review of the testimonies of the prosecution witnesses and the
documentary records of the case reveals irreparably broken links in the chain of custody.

According to the apprehending police officers in their Joint Affidavit, the following were
confiscated from the accused, to wit:

a) Several pcs of used empty plastic sachets containing suspected shabu residues.
 b) Eight used (8) disposable lighters ( two (2) pcs colored orange, two (2) pcs colored
yellow, one (1) pc colored green & one (1) pc colored white ).

c) Several pcs of used rolled aluminum foil containing suspected shabu residues.

d) Several pcs of used cut aluminum foil containing suspected shabu residues.

e) One (1) pc glass tube containing suspected shabu residues.30

[Emphases supplied]

At the police station, the case, the accused, and the above-mentioned items were indorsed to
Duty Investigator Senior Police Officer 1 Pedro Urbano, Jr. (SPO1 Urbano) for proper
disposition.31 A letter-request for laboratory examination was prepared by Police Superintendent
Edgar Orduna Basbag for the following items:

a) Pieces of used empty small plastic sachets with suspected shabu residues
marked "DC&A-1."

b) Pieces of used rolled and cut aluminum foil with suspected shabu residues
marked "DC&A-2."

c) Pieces of used cut aluminum foil with suspected shabu residues marked "DC&A-3."32

[Emphases supplied]

The letter-request and above-mentioned items were submitted to P/Insp. Maranion by SPO3
Froilan Esteban (SPO3 Esteban). Final Chemistry Report No. D-042-06L listed the specimens
which were submitted for testing, to wit:

SPECIMENS SUBMITTED:

A – A1 to A115 – One Hundred fifteen (115) open transparent plastic sachet with tag
each containing suspected shabu residue without markings.

B – B1 to B11 – Eleven (11) rolled used aluminum foil with tag each containing
suspected shabu residue without markings.

C – C1 to C49 – Forty-nine (49) used aluminum foil with tag each containing suspected
shabu residue without markings.33

[Emphases supplied]

Three days after the subject items were seized, or on September 5, 2006, a Confiscation Receipt
was issued by PO1 Azardon and PO1 Dela Cruz, which reads:
DCPS AID SOTG 05 September 2006

CONFISCATION RECEIPT

TO WHOM IT MAY CONCERN:

THIS IS TO CERTIFY that on or about 12:45 noon of September 4, 2006, we together with our
precinct supervisor, SPO4 Pedro Belen Jr., and SWAT members composed of SPO1 Marlon
Decano, PO3 Manuel Garcia, PO2 Adriano Cepiroto and PO1 Aldrin Guarin apprehended the
following names of persons of ARNOLD MARTINEZ Y ANGELES, 37 yrs old, married,
jobless, a resident of Lucao Dist., this city; EDGAR DIZON Y FERRER, 36 yrs old, single,
tricycle driver, a resident of 471 Lucao Dist., this city. REZIN MARTINEZ Y CAROLINO, 44
yrs old, married, jitney driver, a resident of Lucao Disttrict this city; ROLAND DORIA Y DIAZ,
39 yrs old, married, businessman, resident of Cabeldatan, Malasiqui, Pangasinan and RAFAEL
GONZALES Y CUNANAN, 49 yrs old, separated, jobless and a resident of Trinidad Subd.,
Arellano-Bani this city.

Suspects were duly informed of their constitutional rights and were brought to Dagupan City
Police Station, Perez Market Site Dagupan City and indorsed to Duty Desk Officer to record the
incident and the sachet of suspected Shabu Paraphernalias were brought to PNP Crime
Laboratory, Lingayen, Pangasinan for Laboratory Examination.

Seizing Officer:

(sgd.) (sgd.)
PO1 Bernard B Azardon PO1 Alejandro Dela Cruz
Affiant Affiant

Remarks:

Refused to Signed

Refused to Signed

Refused to Signed

Refused to Signed

Refused to Signed34

[Emphases supplied]

The 115 open transparent plastic sachets, 11 pieces of rolled used aluminum foil, and 27 (of the
49) pieces of used aluminum foil, all containing shabu residue, as identified in the Final
Chemistry Report, were presented in court and marked as Exhibits "H" and series, "I" and series,
and "J" and series, respectively. Said items were identified by PO1 Azardon and P/Insp.
Maranion at the witness stand.35

The CA ruled that the integrity and evidentiary value of the subject items were properly
preserved as there was sufficient evidence to prove that the items seized from the accused were
the same ones forwarded to the crime laboratory for examination, as shown in the Confiscation
Receipt and the letter-request for laboratory examination.

A review of the chain of custody indicates, however, that the CA is mistaken.

First, the apprehending team failed to comply with Section 21 of R.A. No. 9165. After seizure
and confiscation of the subject items, no physical inventory was conducted in the presence of the
accused, or their representative or counsel, a representative from the media and the DOJ, and any
elected public official. Thus, no inventory was prepared, signed, and provided to the accused in
the manner required by law. PO1 Azardon, in his testimony,36admitted that no photographs were
taken. The only discernable reason proffered by him for the failure to comply with the prescribed
procedure was that the situation happened so suddenly. Thus:

Q: But upon receiving such report from that jeepney driver you immediately formed a
group and went to the place of Rafael Gonzales?

A: Yes, sir.

Q: Such that you did not even inform the PDEA before you barged in that place of Rafael
Gonzales?

A: It was so suddenly, [sic] sir.

Q: And that explains the reason why you were not able to have pictures taken, is that
correct?

A: Yes, sir.37

[Emphasis supplied]

The Court does not find such to be a justifiable ground to excuse non-compliance. The
suddenness of the situation cannot justify non-compliance with the requirements. The police
officers were not prevented from preparing an inventory and taking photographs. In fact, Section
21(a) of the IRR of R.A. No. 9165 provides specifically that in case of warrantless seizures, the
inventory and photographs shall be done at the nearest police station or at the nearest office of
the apprehending officer/team. Whatever effect the suddenness of the situation may have had
should have dissipated by the time they reached the police station, as the suspects had already
been arrested and the items seized. Moreover, it has been held that in case of warrantless seizures
nothing prevents the apprehending officer from immediately conducting the physical inventory
and photography of the items at their place of seizure, as it is more in keeping with the law’s
intent to preserve their integrity and evidentiary value.38
This Court has repeatedly reversed conviction in drug cases for failure to comply with Section 21
of R.A. No. 9165, resulting in the failure to properly preserve the integrity and evidentiary value
of the seized items. Some cases are People v. Garcia,39 People v. Dela Cruz,40 People v. Dela
Cruz,41 People v. Santos, Jr.,42 People v. Nazareno,43People v. Orteza,44 Zarraga v.
People,45 and People v. Kimura.46

Second, the subject items were not properly marked. The case of People v. Sanchez is instructive
on the requirement of marking, to wit:

What Section 21 of R.A. No. 9165 and its implementing rule do not expressly specify is the
matter of "marking" of the seized items in warrantless seizures to ensure that the evidence seized
upon apprehension is the same evidence subjected to inventory and photography when these
activities are undertaken at the police station rather than at the place of arrest. Consistency with
the "chain of custody" rule requires that the "marking" of the seized items - to truly ensure that
they are the same items that enter the chain and are eventually the ones offered in evidence -
should be done (1) in the presence of the apprehended violator (2) immediately upon
confiscation.This step initiates the process of protecting innocent persons from dubious and
concocted searches, and of protecting as well the apprehending officers from harassment suits
based on planting of evidence under Section 29 and on allegations of robbery or theft.

For greater specificity, "marking" means the placing by the apprehending officer or the poseur-
buyer of his/her initials and signature on the item/s seized. x x x Thereafter, the seized items shall
be placed in an envelope or an evidence bag unless the type and quantity of the seized items
require a different type of handling and/or container. The evidence bag or container shall
accordingly be signed by the handling officer and turned over to the next officer in the chain of
custody.47 [Emphasis in the original]

Nowhere in the testimony of PO1 Azardon or in his Joint Affidavit with PO1 Dela Cruz does it
appear that the subject items were at all marked. It was only in the letter-request for laboratory
examination that the subject items were indicated to have been marked with "DC&A-1,"
"DC&A-2" and "DC&A-3." There is no showing, however, as to who made those markings and
when they were made. Moreover, those purported markings were never mentioned when the
subject items were identified by the prosecution witnesses when they took the stand.

The markings appear to pertain to a group of items, that is, empty plastic sachets, rolled and cut
aluminium foil, and cut aluminium foil, but do not specifically pertain to any individual item in
each group. Furthermore, it was only in the Chemistry Report48 that the precise number of each
type of item was indicated and enumerated. The Court notes that in all documents prior to said
report, the subject items were never accurately quantified but only described as
"pieces,"49 "several pcs,"50 and "shabu paraphernallas."51 Strangely, the Chemistry Report
indicates that all the subject items had "no markings," although each item was reported to have
been marked by P/Insp. Maranion in the course of processing the subject items during laboratory
examination and testing.52 Doubt, therefore, arises as to the identity of the subject items. It cannot
be determined with moral certainty that the subject items seized from the accused were the same
ones subjected to the laboratory examination and presented in court.
This Court has acquitted the accused for the failure and irregularity in the marking of seized
items in dangerous drugs cases, such as Zarraga v. People,53 People v. Kimura,54 and People v.
Laxa.55

Third, the Confiscation Receipt relied upon by the prosecution and the courts below gives rise to
more uncertainty. Instead of being prepared on the day of the seizure of the items, it was
prepared only three days after. More important, the receipt did not even indicate exactly what
items were confiscated and their quantity. These are basic information that a confiscation receipt
should provide. The only information contained in the Confiscation Receipt was the fact of arrest
of the accused and the general description of the subject items as "the sachet of suspected Shabu
paraphernallas were brought to the PNP Crime Laboratory." The receipt is made even more
dubious by PO1 Azardon’s admission in his testimony56 that he did not personally prepare the
Confiscation Receipt and he did not know exactly who did so.

Fourth, according to the Certification57 issued by the Dagupan Police Station, the subject items
were indorsed by PO1 Dela Cruz to Duty Investigator SPO1 Urbano for proper disposition.
These were later turned over by SPO3 Esteban to P/Insp. Maranion. There is, however, no
showing of how and when the subject items were transferred from SPO1 Urbano to SPO3
Esteban.

Fifth, P/Insp. Maranion appears to be the last person in the chain of custody. No witness testified
on how the subject items were kept after they were tested prior to their presentation in court. This
Court has highlighted similar shortcomings in People v. Cervantes,58 People v. Garcia,59 People
v. Sanchez,60 and Malillin v. People.61

More irregularities further darken the cloud as to the guilt of the accused. Contrary to PO1
Azardon’s testimony62that they were tipped off by a concerned citizen while at the police station,
the Letter63 to the Executive Director of the DDB states that the apprehending officers were
tipped off "while conducting monitoring/surveillance." Said letter also indicates, as does the
Confiscation Receipt, that the arrest and seizure occurred on September 4, 2006, and not
September 2, 2006, as alleged in the Information. It was also mentioned in the aforementioned
Certification of the Dagupan Police and Joint Affidavit of the police officers that a glass tube
suspected to contain shabu residue was also confiscated from the accused. Interestingly, no glass
tube was submitted for laboratory examination.

In sum, numerous lapses and irregularities in the chain of custody belie the prosecution’s
position that the integrity and evidentiary value of the subject items were properly preserved. The
two documents specifically relied on by the CA, the Confiscation Receipt and the letter-request
for laboratory examination, have been shown to be grossly insufficient in proving the identity of
the corpus delicti. The corpus delicti in dangerous drugs cases constitutes the drug itself. This
means that proof beyond reasonable doubt of the identity of the prohibited drug is essential
before the accused can be found guilty.64

Regarding the lack of prior coordination with the PDEA provided in Section 86 of R.A. No.
9165, in People v. Sta. Maria,65 this Court held that said section was silent as to the consequences
of such failure, and said silence could not be interpreted as a legislative intent to make an arrest
without the participation of PDEA illegal, nor evidence obtained pursuant to such an arrest
inadmissible. Section 86 is explicit only in saying that the PDEA shall be the "lead agency" in
the investigation and prosecution of drug-related cases. Therefore, other law enforcement bodies
still possess authority to perform similar functions as the PDEA as long as illegal drugs cases
will eventually be transferred to the latter.

Let it be stressed that non-compliance with Section 21 of R.A. No. 9165 does not affect the
admissibility of the evidence but only its weight.66 Thus, had the subject items in this case been
admissible, their evidentiary merit and probative value would be insufficient to warrant
conviction.

It may be true that where no ill motive can be attributed to the police officers, the presumption of
regularity in the performance of official duty should prevail. However, such presumption obtains
only when there is no deviation from the regular performance of duty.67 Where the official act in
question is irregular on its face, the presumption of regularity cannot stand.

In this case, the official acts of the law enforcers were clearly shown and proven to be irregular.
When challenged by the evidence of a flawed chain of custody, the presumption of regularity
cannot prevail over the presumption of innocence of the accused.68

This Court once again takes note of the growing number of acquittals for dangerous drugs cases
due to the failure of law enforcers to observe the proper arrest, search and seizure procedure
under the law.69 Some bona fidearrests and seizures in dangerous drugs cases result in the
acquittal of the accused because drug enforcement operatives compromise the integrity and
evidentiary worth of the seized items. It behooves this Court to remind law enforcement agencies
to exert greater effort to apply the rules and procedures governing the custody, control, and
handling of seized drugs.

It is recognized that strict compliance with the legal prescriptions of R.A. No. 9165 may not
always be possible. Thus, as earlier stated, non-compliance therewith is not necessarily fatal.
However, the lapses in procedure must be recognized, addressed and explained in terms of their
justifiable grounds, and the integrity and evidentiary value of the evidence seized must be shown
to have been preserved.70

On a final note, this Court takes the opportunity to be instructive on Sec. 1171 (Possession of
Dangerous Drugs) and Sec. 1572 (Use of Dangerous Drugs) of R.A. No. 9165, with regard to the
charges that are filed by law enforcers. This Court notes the practice of law enforcers of filing
charges under Sec. 11 in cases where the presence of dangerous drugs as basis for possession is
only and solely in the form of residue, being subsumed under the last paragraph of Sec. 11.
Although not incorrect, it would be more in keeping with the intent of the law to file charges
under Sec. 15 instead in order to rehabilitate first time offenders of drug use, provided that there
is a positive confirmatory test result as required under Sec. 15. The minimum penalty under the
last paragraph of Sec. 11 for the possession of residue is imprisonment of twelve years and one
day, while the penalty under Sec. 15 for first time offenders of drug use is a minimum of six
months rehabilitation in a government center. To file charges under Sec. 11 on the basis of
residue alone would frustrate the objective of the law to rehabilitate drug users and provide them
with an opportunity to recover for a second chance at life.

In the case at bench, the presence of dangerous drugs was only in the form of residue on the drug
paraphernalia, and the accused were found positive for use of dangerous drugs. Granting that the
arrest was legal, the evidence obtained admissible, and the chain of custody intact, the law
enforcers should have filed charges under Sec. 15, R.A. No. 9165 or for use of dangerous drugs
and, if there was no residue at all, they should have been charged under Sec. 1473 (Possession of
Equipment, Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs During Parties,
Social Gatherings or Meetings). Sec. 14 provides that the maximum penalty under Sec.
1274(Possession of Possession of Equipment, Instrument, Apparatus and Other Paraphernalia for
Dangerous Drugs) shall be imposed on any person who shall possess any equipment, instrument,
apparatus and other paraphernalia for dangerous drugs. Under Sec. 12, the maximum penalty is
imprisonment of four years and a fine of ₱50,000.00. In fact, under the same section, the
possession of such equipment, apparatus or other paraphernalia is prima facie evidence that the
possessor has used a dangerous drug and shall be presumed to have violated Sec. 15.1avvphi1

In order to effectively fulfill the intent of the law to rehabilitate drug users, this Court thus calls
on law enforcers and prosecutors in dangerous drugs cases to exercise proper discretion in filing
charges when the presence of dangerous drugs is only and solely in the form of residue and the
confirmatory test required under Sec. 15 is positive for use of dangerous drugs. In such cases, to
afford the accused a chance to be rehabilitated, the filing of charges for or involving possession
of dangerous drugs should only be done when another separate quantity of dangerous drugs,
other than mere residue, is found in the possession of the accused as provided for in Sec. 15.

WHEREFORE, the August 7, 2009 Decision of the Court of Appeals in CA-G.R. HC-NO. 03269
is REVERSED and SET ASIDE and another judgment entered ACQUITTING the accused and
ordering their immediate release from detention, unless they are confined for any other lawful
cause.

Let a copy of this decision be furnished the Director of the Bureau of Corrections, Muntinlupa
City, for immediate implementation. The Director of the Bureau of Corrections is directed to
report to this Court within five days from receipt of this decision the action he has taken. Copies
shall also be furnished the Director-General, Philippine National Police, and the Director-
General, Philippine Drugs Enforcement Agency, for their information and guidance.

The Regional Trial Court, Branch 41, Dagupan City, is directed to turn over the seized items to
the Dangerous Drugs Board for destruction in accordance with law.

SO ORDERED.

+++++++++++++++
PEOPLE OF THE PHILIPPINES, G.R. No. 172116
Appellee,
Present:
Panganiban, C.J. (Chairperson),
- versus - Ynares-Santiago,
Austria-Martinez,
Callejo, Sr., and
Chico-Nazario, JJ.
ROGER VILLANUEVA,
Appellant. Promulgated:

October 30, 2006

x ---------------------------------------------------------------------------------------- x

DECISION

YNARES-SANTIAGO, J.:

For review is the Decision[1] of the Court of Appeals in CA-G.R. CR-H.C. No. 00975, dated
December 20, 2005, affirming in toto the Decision[2] of the Regional Trial Court of Malabon
City, Branch 72, in Crim. Case No. 27159-MN finding appellant Roger Villanueva y Huelva
guilty of violation of Section 5, Article II of Republic Act (R.A.) No. 9165 (2002), otherwise
known as the Comprehensive Dangerous Drugs Act of 2002, and sentencing him to suffer the
penalty of life imprisonment and to pay a fine of P500,000.00 and costs.

The Information dated July 11, 2002 against the appellant alleges:

That on or about the 9th day of July, 2002 in the Municipality of Navotas,
Metro Manila Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, being a private person and without authority of law, did,
then and there, willfully, unlawfully and feloniously sell and deliver in
consideration of the amount of P100.00 to poseur buyer One (1) heat-sealed
transparent plastic sachet containing white crystalline substance with net weight
 0.21 gram, which substance when subjected to chemistry examination gave
positive result for Methylamphetamine Hydrochloride otherwise known shabu, a
regulated drug.

CONTRARY TO LAW. [3]

Appellant pleaded not guilty upon arraignment.[4]

PO1 Ariosto Rana of the Dangerous Drugs Enforcement Group (DDEG), Northern Police
District, testified that at 8:00 p.m. of July 9, 2002, a confidential informant informed them that
appellant was selling shabu at Block 8, lot 2, Phase 2, Area 1, Dagat-dagatan, Navotas. [5] He
immediately composed a team of police operatives to entrap the appellant, [6] with him posing as
the poseur-buyer. After marking the P100.00 bill and recording in the blotter its serial number,
the team proceeded to the place and arrived thereat around 9:30 p.m. He and the informant
approached the appellant while the rest strategically positioned themselves. The informant
introduced him to the appellant, who asked them if they wanted to buy shabu. Appellant got one
plastic sachet from his pocket containing a white crystalline substance. After appellant received
the marked money, Rana executed the prearranged signal and the team arrested the
appellant. The confiscated substance was submitted to the Northern Police District-Crime
Laboratory for examination,[7] which yielded the following results:

SPECIMEN SUBMITTED:

A one (1) heat-sealed transparent plastic sachet with markings RVH BB

containing 0.21 gram of white crystalline substance. xxx.

xxxx

FINDINGS:

Qualitative examination conducted on the above-stated specimen gave POSITIVE

result to the tests for Methylamphetamine hydrochloride, a regulated drug. x x x[8]

Denying the accusations against him, appellant testified that on the night of the alleged
commission of the crime, he was at home watching television. Thereafter, two policemen
knocked at the door looking for a certain person named Roger. When he identified himself as
Roger, he was immediately handcuffed and brought to the headquarters without explanation. It
was only later that he found out that he was being charged for selling shabu.[9]

After hearing, the trial court rendered its decision, the dispositive portion of which reads:

WHEREFORE, premises considered, judgment is hereby rendered finding

accused Roger Villanueva y Huelva guilty beyond reasonable doubt for drug
pushing, penalized under Section 5, Art. II, RA 9165 and he is hereby sentenced,
in view of the small quantity of shabu involved, to Life Imprisonment and to pay
a fine of P500,000.00, and to pay the costs.

The decks of shabu subjects of this case are forfeited in favor of the
government to be disposed of under the rules governing the same. OIC-Branch
Clerk of Court Enriqueta A. Marquez is hereby enjoined to immediately turn over
the deck of shabu to the proper authority for final disposition.

Costs de oficio.

SO ORDERED.[10]

Considering the penalty imposed, the case was directly appealed to this Court for automatic
review. However, pursuant to our decision in People v. Mateo[11] modifying the pertinent
provisions of the Rules of Court insofar as direct appeals from the Regional Trial Court to the
Supreme Court in cases where the penalty imposed is death, reclusion perpetua or life
imprisonment, this case was referred to the Court of Appeals, which affirmed in toto the decision
of the trial court, thus:
IN VIEW OF ALL THE FOREGOING, the instant appeal is hereby
DISMISSED and the challenged decision AFFIRMED in toto. Costs de oficio.

SO ORDERED.[12]

Hence, this petition.

The core issue for resolution is whether error attended the trial courts findings, as
affirmed by the Court of Appeals, that appellant was guilty beyond reasonable doubt of violation
of Section 5, Article II, of R.A. No. 9165.
Appellant maintains that there was no entrapment and that he was arrested in his house
on the night of the alleged commission of the crime. While he admits that the resolution of the
case would boil down to the determination of who between the parties is more credible, he insists
that the presumption of regularity in the performance of official duty alone could not sustain a
conviction; and that the self-serving and uncorroborated testimony of PO1 Rana could not
prevail over his constitutionally guaranteed presumption of innocence.[13]

In essence, what appellant puts at issue is the trial courts appreciation of factual details of
the buy-bust operation or the entrapment. Suffice it to say that settled is the policy of this Court,
founded on reason and experience, to sustain the factual findings of the trial court in criminal
cases, on the rational assumption that it is in a better position to assess the evidence before it,
having had the opportunity to make an honest determination of the witnesses deportment during
the trial.[14] In the instant case, we find no basis to disregard the trial courts factual findings.

Indeed, in criminal cases, the prosecution bears the onus to prove beyond reasonable
doubt not only the commission of the crime but likewise to establish, with the same quantum of
proof, the identity of the person or persons responsible therefor. This burden of proof does not
shift to the defense but remains in the prosecution throughout the trial. However, when the
prosecution has succeeded in discharging the burden of proof by presenting evidence sufficient
to convince the court of the truth of the allegations in the information or has established a prima
facie case against the accused, the burden of evidence shifts to the accused making it incumbent
upon him to adduce evidence in order to meet and nullify, if not to overthrow, that prima facie
case.[15]

To sustain a conviction under a single prosecution witness, such testimony needs only to
establish sufficiently: 1) the identity of the buyer, seller, object and consideration; and 2) the
delivery of the thing sold and the payment thereof. Indeed, what is material is proof that the
transaction or sale actually took place, coupled with the presentation in court of the substance
seized as evidence.[16] In this case, PO1 Rana, being the poseur-buyer, was the most competent
person to testify on the fact of sale and he did so to the satisfaction of both the trial court and the
appellate court.

Thus, we agree with the Court of Appeals that:

Contrary to appellants assertions, the prosecution has established with

moral certainty the presence of all the elements necessary for the prosecution for
the illegal sale of shabu. In the case at bar, there is no doubt that appellant was
caught in the very act of selling shabu, a prohibited drug. PO1 Ariosto Rana, the
prosecution witness who acted as poseur-buyer, narrated in a clear and
straightforward manner the facts of sale. x x x
 xxxx

What is more, the identities of the seller and the buyer together with
the corpus delict[i] of selling shabu have also been duly established. Poseur-
buyer PO1 Ariosto Rana positively identified accused-appellant Roger Villanueva
as the person who sold to him one plastic sachet containing the white crystalline
substance. x x x

xxxx

Then too, the regulated drug of shabu contained in a plastic sachet which
the appellant handed over to the buyer, was also duly proven before the trial court.
xxx
xxxx

Against these strong positive and substantial evidence, appellant could

only say that no buy-bust operation was conducted and, instead, insists that he
was just a victim of frame-up; that the policemen carried out an illegal search on
the premises of his house, planted evidence, and then charged him as a supplier of
drugs.

The contentions are without merit.

A buy-bust operation is a form of entrapment that is resorted to for

trapping and capturing felons in the execution of their criminal plan. The
operation is sanctioned by law and has consistently proved to be an effective
method of apprehending drug peddlers. Unless there is clear and convincing
evidence that the members of the buy-bust team were inspired by any improper
motive or were not properly performing their duty, their testimonies with respect
to the operation deserve full faith and credit. Verily, here, from the evidence
adduced, We find no reason to depart from the general rule. We are one with the
court a quos conclusion that the prosecution was able to establish that a buy-bust
operation actually took place starting from the time the team composed of nine (9)
members proceeded to the target area at 9:00 p.m. for the initial negotiation until
the perfection of the sale at 9:30 p.m. the same night.[17]

Moreover, when the police officers involved in the buy-bust operation have no motive to
falsely testify against the accused, the courts shall uphold the presumption that they have
performed their duties regularly;[18] and as held in People v. Pacis,[19] bare denials by the accused
cannot overcome this presumption.
 All told, the trial court and the Court of Appeals correctly held that the appellant
committed the crime charged. What remains to be determined is the correctness of the penalty
imposed on the felony committed.

Section 5, Article II of RA 9165 reads:

Sec. 5. Sale, Trading, Administration, Dispensation, Delivery, Distribution

and Transportation of Dangerous Drugs and/or Controlled Precursors and
Essential Chemicals. - The penalty of life imprisonment to death and a fine
ranging from Five hundred thousand pesos (P500,000.00) to Ten million pesos
(P10,000,000.00) shall be imposed upon any person, who, unless authorized by
law, shall sell, trade, administer, dispense, deliver, give away to another,
distribute, dispatch in transit or transport any dangerous drug, including any and
all species of opium poppy regardless of the quantity and purity involved, or
shall act as a broker in any of such transactions.

In finding appellant guilty beyond reasonable doubt of the crime charged, the trial court
sentenced him to suffer the penalty of life imprisonment and to pay a fine of Five Hundred
Thousand pesos (P500,000.00). While it correctly imposed the said penalties, we find the reason
given therefor, that is, in view of the small quantity of shabu involved, inaccurate.

Unlike under the repealed R.A. No. 6425 (1972) or the Dangerous Drugs Act of 1972
where the imposable penalty depends on the quantity of the regulated drug involved, the
foregoing provision now imposes the penalty of life imprisonment to death and a fine ranging
from Five hundred thousand pesos (P500,000.00) to Ten million pesos (P10,000,000.00) for
the sale, trade, administration, dispensation, delivery, distribution and transportation of shabu, a
dangerous drug, regardless of the quantity involved.[20]

WHEREFORE, in view of the foregoing, the Decision of the Court of Appeals in CA-
G.R. CR-H.C. No. 00975, dated December 20, 2005, affirming in toto the Decision of the
Regional Trial Court of Malabon City, Branch 72, in Crim. Case No. 27159-MN finding
appellant Roger Villanueva y Huelva guilty of violation of Section 5, Article II of Republic Act
No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002, and sentencing
him to suffer the penalty of life imprisonment and to pay a fine of P500,000.00 and costs, is
hereby AFFIRMED.
 SO ORDERED.

++++++++++
JUNIE MALLILLIN Y. LOPEZ, G.R. No. 172953
Petitioner,

Present:

QUISUMBING, J.,
- versus - Chairperson,
CARPIO MORALES,
TINGA,
VELASCO, JR., and
PEOPLE OF THE PHILIPPINES, BRION, JJ.
Respondent.
Promulgated:

April 30, 2008

x ---------------------------------------------------------------------------------x
DECISION

TINGA, J.:

The presumption of regularity in the performance of official functions cannot by its lonesome
overcome the constitutional presumption of innocence. Evidence of guilt beyond reasonable
doubt and nothing else can eclipse the hypothesis of guiltlessness. And this burden is met not
by bestowing distrust on the innocence of the accused but by obliterating all doubts as to his
culpability.

In this Petition for Review[1] under Rule 45 of the Rules of Court, Junie Malillin y Lopez
(petitioner) assails the Decision[2] of the Court of Appeals dated 27 January 2006 as well as its
Resolution[3] dated 30 May 2006 denying his motion for reconsideration. The challenged
decision has affirmed the Decision[4] of the Regional Trial Court (RTC) of Sorsogon City, Branch
52[5] which found petitioner guilty beyond reasonable doubt of illegal possession of
methamphetamine hydrochloride, locally known as shabu, a prohibited drug.

The antecedent facts follow.

On the strength of a warrant[6] of search and seizure issued by the RTC of Sorsogon City, Branch
52, a team of five police officers raided the residence of petitioner in
Barangay Tugos, Sorsogon City on 4 February 2003. The team was headed by
P/Insp. Catalino Bolanos (Bolanos), with PO3 Roberto Esternon (Esternon), SPO1 Pedro Docot,
SPO1 Danilo Lasala and SPO2 Romeo Gallinera(Gallinera) as members. The searchconducted in
the presence of barangay kagawad

Delfin Licup as well as petitioner himself, his wife Sheila and his mother, Normaallegedly
yielded two (2) plastic sachets of shabu and five (5) empty plastic sachets containing residual
morsels of the said substance.

Accordingly, petitioner was charged with violation of Section 11, [7] Article II of Republic
Act No. 9165, otherwise known as The Comprehensive Dangerous Drugs Act of 2002, in a
criminal information whose inculpatory portion reads:

That on or about the 4th day of February 2003, at about 8:45 in the
morning in Barangay Tugos, Sorsogon City, Philippines, the said accused did
then and there willfully, unlawfully and feloniously have in his possession,
custody and control two (2) plastic sachets of methamphetamine
hydrochloride [or] shabu with an aggregate weight of 0.0743 gram, and four
empty sachets containing shabu residue, without having been previously
authorized by law to possess the same.

CONTRARY TO LAW.[8]

Petitioner entered a negative plea.[9] At the ensuing trial, the prosecution

presented Bolanos, Arroyo and Esternon as witnesses.

Taking the witness stand, Bolanos, the leader of the raiding team, testified on the
circumstances surrounding the search as follows: that he and his men were allowed entry into the
house by petitioner after the latter was shown the search warrant; that upon entering the
premises, he ordered Esternon and barangay kagawad Licup, whose assistance had previously
been requested in executing the warrant, to conduct the search; that the rest of the police team
positioned themselves outside the house to make sure that nobody flees; that he was observing
the conduct of the search from about a meter away; that the search conducted inside the bedroom
of petitioner yielded five empty plastic sachets with suspected shabu residue contained in a
denim bag and kept in one of the cabinets, and two plastic sachets containing shabu which fell
off from one of the pillows searched by Esternona discovery that was made in the presence of
petitioner.[10] On cross examination, Bolanos admitted that during the search, he was explaining
its progress to petitioners mother, Norma, but that at the same time his eyes were fixed on the
search being conducted by Esternon.[11]

Esternon testified that the denim bag containing the empty plastic sachets was found
behind the door of the bedroom and not inside the cabinet; that he then found the two filled
sachets under a pillow on the bed and forthwith called on Gallinera to have the items recorded
and marked.[12] On cross, he admitted that it was he alone who conducted the search
because Bolanos was standing behind him in the living room portion of the house and that
petitioner handed to him the things to be searched, which included the pillow in which the two
sachets of shabu were kept;[13] that he brought the seized items to the Balogo Police Station for a
true inventory, then to the trial court[14] and thereafter to the laboratory.[15]

Supt. Lorlie Arroyo (Arroyo), the forensic chemist who administered the examination on
the seized items, was presented as an expert witness to identify the items submitted to the
laboratory. She revealed that the two filled sachets were positive of shabu and that of the five
empty sachets, four were positive of containing residue of the same substance.[16] She further
admitted that all seven sachets were delivered to the laboratory by Esternon in the afternoon of
the same day that the warrant was executed except that it was not she but rather a certain Mrs.
Ofelia Garcia who received the items from Esternon at the laboratory.[17]

The evidence for the defense focused on the irregularity of the search and seizure
conducted by the police operatives. Petitioner testified that Esternon began the search of the
bedroom with Licupand petitioner himself inside. However, it was momentarily interrupted when
one of the police officers declared to Bolanos that petitioners wife, Sheila, was tucking
something inside her underwear. Forthwith, a lady officer arrived to conduct the search of
Sheilas body inside the same bedroom. At that point, everyone except Esternon was asked to step
out of the room. So, it was in his presence that Sheila was searched by
the lady officer. Petitioner was then asked by a police officer to buy

cigarettes at a nearby store and when he returned from the errand, he was told that nothing was
found on Sheilas body.[18] Sheila was ordered to transfer to the other bedroom together with her
children.[19]

Petitioner asserted that on his return from the errand, he was summoned by Esternon to
the bedroom and once inside, the officer closed the door and asked him to lift the mattress on the
bed. And as he was doing as told, Esternon stopped him and ordered him to lift the portion of the
headboard. In that instant, Esternon showed him sachet of shabu which according to him came
from a pillow on the bed.[20] Petitioners account in its entirety was corroborated in its material
respects by Norma, barangay kagawad Licup and Sheila in their testimonies. Norma and Sheila
positively declared that petitioner was not in the house for the entire duration of the search
because at one point he was sent by Esternon to the store to buy cigarettes while Sheila was
being searched by the lady officer. [21]Licup for his part testified on the circumstances surrounding
the discovery of the plastic sachets. He recounted that after the five empty sachets were found, he
went out of the bedroom and into the living room and after about three minutes, Esternon, who
was left inside the bedroom, exclaimed that he had just found two filled sachets.[22]

On 20 June 2004 the trial court rendered its Decision declaring petitioner guilty beyond
reasonable doubt of the offense charged. Petitioner was condemned to prison for twelve years
(12) and one (1) day to twenty (20) years and to pay a fine of P300,000.00.[23] The trial court
reasoned that the fact that shabu was found in the house of petitioner was prima facie evidence
of petitioners animus possidendi sufficient to convict him of the charge inasmuch as things
which a person possesses or over which he exercises acts of ownership are presumptively owned
by him. It also noted petitioners failure to ascribe ill motives to the police officers to fabricate
charges against him.[24]

Aggrieved, petitioner filed a Notice of Appeal.[25] In his Appeal Brief[26] filed with the
Court of Appeals, petitioner called the attention of the court to certain irregularities in the manner
by which the search of his house was conducted. For its part, the Office of the Solicitor General
(OSG) advanced that on the contrary, the prosecution evidence sufficed for petitioners conviction
and that the defense never advanced any proof to show that the members of the raiding team was
improperly motivated to hurl false charges against him and hence the presumption that they had
regularly performed their duties should prevail.[27]

On 27 January 2006, the Court of Appeals rendered the assailed decision affirming the
judgment of the trial court but modifying the prison sentence to an indeterminate term of twelve
(12) years as minimum to seventeen (17) years as maximum. [28] Petitioner moved for
reconsideration but the same was denied by the appellate court. [29] Hence, the instant petition
which raises substantially the same issues.

In its Comment,[30] the OSG bids to establish that the raiding team had regularly
performed its duties in the conduct of the search. [31] It points to petitioners incredulous claim that
he was framed up by Esternon on the ground that the discovery of the two filled sachets was
made in his and Licups presence. It likewise notes that petitioners bare denial cannot defeat the
positive assertions of the prosecution and that the same does not suffice to overcome the prima
facie existence of animus possidendi.

This argument, however, hardly holds up to what is revealed by the records.

Prefatorily, although the trial courts findings of fact are entitled to great weight and will
not be disturbed on appeal, this rule does not apply where facts of weight and substance have
been overlooked, misapprehended or misapplied in a case under appeal.[32] In the case at bar,
several circumstances obtain which, if properly appreciated, would warrant a conclusion
different from that arrived at by the trial court and the Court of Appeals.

Prosecutions for illegal possession of prohibited drugs necessitates that the elemental act
of possession of a prohibited substance be established with moral certainty, together with the fact
that the same is not authorized by law. The dangerous drug itself constitutes the
very corpus delicti of the offense and the fact of its existence is vital to a judgment of conviction.
[33]
Essential therefore in these cases is that the identity of the prohibited drug be established
beyond doubt.[34] Be that as it may, the mere fact of unauthorized possession will not suffice to
create in a reasonable mind the moral certainty required to sustain a finding of guilt. More than
just the fact of possession, the fact that the substance illegally possessed in the first place is the
same substance offered in court as exhibit must also be established with the same unwavering
exactitude as that requisite to make a finding of guilt. The chain of custody requirement performs
this function in that it ensures that unnecessary doubts concerning the identity of the evidence are
removed.[35]

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. [36] It would include testimony about every link in
the chain, from the moment the item was picked up to the time it is offered into evidence, in such
a way that every person who touched the exhibit would describe how and from whom it was
received, where it was and what happened to it while in the witness possession, the condition in
which it was received and the condition in which it was delivered to the next link in the
chain. These witnesses would then describe the precautions taken to ensure that there had been
no change in the condition of the item and no opportunity for someone not in the chain to have
possession of the same.[37]

While testimony about a perfect chain is not always the standard because it is almost
always impossible to obtain, an unbroken chain of custody becomes indispensable and essential
when the item of real evidence is not distinctive and is not readily identifiable, or when its
condition at the time of testing or trial is critical, or when a witness has failed to observe its
uniqueness.[38] The same standard likewise obtains in case the evidence is susceptible to
alteration, tampering, contamination[39] and even substitution and exchange.[40] In other
words, the exhibits level of susceptibility to fungibility, alteration or tamperingwithout regard to
whether the same is advertent or otherwise notdictates the level of strictness in the application of
the chain of custody rule.

Indeed, the likelihood of tampering, loss or mistake with respect to an exhibit is greatest
when the exhibit is small and is one that has physical characteristics fungible in nature and
similar in form to substances familiar to people in their daily lives. [41] Graham vs.
State[42] positively acknowledged this danger. In that case where a substance later analyzed as
heroinwas handled by two police officers prior to examination who however did not testify in
court on the condition and whereabouts of the exhibit at the time it was in their possessionwas
excluded from the prosecution evidence, the court pointing out that the white powder seized
could have been indeed heroin or it could have been sugar or baking powder. It ruled that unless
the state can show by records or testimony, the continuous whereabouts of the exhibit at least
between the time it came into the possession of police officers until it was tested in the laboratory
to determine its composition, testimony of the state as to the laboratorys findings is inadmissible.
[43]
 A unique characteristic of narcotic substances is that they are not readily identifiable as in
fact they are subject to scientific analysis to determine their composition and nature. The Court
cannot reluctantly close its eyes to the likelihood, or at least the possibility, that at any of the
links in the chain of custody over the same there could have been tampering, alteration or
substitution of substances from other casesby accident or otherwisein which similar evidence
was seized or in which similar evidence was submitted for laboratory testing. Hence, in
authenticating the same, a standard more stringent than that applied to cases involving objects
which are readily identifiable must be applied, a more exacting standard that entails a chain of
custody of the item with sufficient completeness if only to render it improbable that the original
item has either been exchanged with another or been contaminated or tampered with.

A mere fleeting glance at the records readily raises significant doubts as to the identity of
the sachets of shabu allegedly seized from petitioner. Of the people who came into direct contact
with the seized objects, only Esternon and Arroyo testified for the specific purpose of
establishing the identity of the evidence. Gallinera, to whom Esternon supposedly handed over
the confiscated sachets for recording and marking, as well as Garcia, the person to whom
Esternon directly handed over the seized items for chemical analysis at the crime laboratory,
were not presented in court to establish the circumstances under which they handled the subject
items. Any reasonable mind might then ask the question: Are the sachets of shabu allegedly
seized from petitioner the very same objects laboratory tested and offered in court as evidence?

The prosecutions evidence is incomplete to provide an affirmative answer. Considering

that it was Gallinera who recorded and marked the seized items, his testimony in court is crucial
to affirm whether the exhibits were the same items handed over to him by Esternon at the place
of seizure and acknowledge the initials marked thereon as his own. The same is true of Garcia
who could have, but nevertheless failed, to testify on the circumstances under which she received
the items from Esternon, what she did with them during the time they were in her possession
until before she delivered the same to Arroyo for analysis.

The prosecution was thus unsuccessful in discharging its burden of establishing the
identity of the seized items because it failed to offer not only the testimony of Gallinera and
Garcia but also any sufficient explanation for such failure. In effect, there is no reasonable
guaranty as to the integrity of the exhibits inasmuch as it failed to rule out the possibility of
substitution of the exhibits, which cannot but inure to its own detriment. This holds true not only
with respect to the two filled sachets but also to the five sachets allegedly containing morsels
of shabu.

Also, contrary to what has been consistently claimed by the prosecution that the search
and seizure was conducted in a regular manner and must be presumed to be so, the records
disclose a series of irregularities committed by the police officers from the commencement of the
search of petitioners house until the submission of the seized items to the laboratory for
analysis. The Court takes note of the unrebutted testimony of petitioner, corroborated by that of
his wife, that prior to the discovery of the two filled sachets petitioner was sent out of his house
to buy cigarettes at a nearby store.Equally telling is the testimony of Bolanos that he posted some
of the members of the raiding team at the door of petitioners house in order to forestall the
likelihood of petitioner fleeing the scene. By no stretch of logic can it be conclusively explained
why petitioner was sent out of his house on an errand when in the first place the police officers
were in fact apprehensive that he would flee to evade arrest. This fact assumes prime importance
because the two filled sachets were allegedly discovered by Esternon immediately after
petitioner returned to his house from the errand, such that he was not able to witness the conduct
of the search during the brief but crucial interlude that he was away.

It is also strange that, as claimed by Esternon, it was petitioner himself who handed to
him the items to be searched including the pillow from which the two filled sachets allegedly
fell. Indeed, it is contrary to ordinary human behavior that petitioner would hand over the said
pillow to Esternon knowing fully well that illegal drugs are concealed therein. In the same
breath, the manner by which the search of Sheilas body was brought up by a member of the
raiding team also raises serious doubts as to the necessity thereof. The declaration of one of the
police officers that he saw Sheila tuck something in her underwear certainly diverted the
attention of the members of petitioners household away from the search being conducted by
Esternon prior to the discovery of the two filled sachets.Lest it be omitted, the Court likewise
takes note of Esternons suspicious presence in the bedroom while Sheila was being searched by a
lady officer. The confluence of these circumstances by any objective standard of behavior
contradicts the prosecutions claim of regularity in the exercise of duty.

Moreover, Section 21[44] of the Implementing Rules and Regulations of R.A. No. 9165
clearly outlines the post-seizure procedure in taking custody of seized drugs. In a language too
plain to require a different construction, it mandates that the officer acquiring initial custody of
drugs under a search warrant must conduct the photographing and the physical inventory of the
item at the place where the warrant has been served. Esternon deviated from this procedure. It
was elicited from him that at the close of the search of petitioners house, he brought the seized
items immediately to the police station for the alleged purpose of making a true inventory
thereof, but there appears to be no reason why a true inventory could not be made in petitioners
house when in fact the apprehending team was able to record and mark the seized items and
there and then prepare a seizure receipt therefor. Lest it be forgotten, the raiding team has had
enough opportunity to cause the issuance of the warrant which means that it has had as much
time to prepare for its implementation. While the final proviso in Section 21 of the rules would
appear to excuse non-compliance therewith, the same cannot benefit the prosecution as it failed
to offer any acceptable justification for Esternons course of action.

Likewise, Esternons failure to deliver the seized items to the court demonstrates a
departure from the directive in the search warrant that the items seized be immediately delivered
to the trial court with a true and verified inventory of the same, [45] as required by Rule 126,
Section 12[46] of the Rules of Court. People v. Go[47] characterized this requirement as mandatory
in order to preclude the substitution of or tampering with said items by interested parties.
[48]
Thus, as a reasonable safeguard, People vs. Del Castillo[49] declared that the approval by the
court which issued the search warrant is necessary before police officers can retain the property
seized and without it, they would have no authority to retain possession thereof and more so to
deliver the same to another agency.[50] Mere tolerance by the trial court of a contrary practice
does not make the practice right because it is violative of the mandatory requirements of the law
and it thereby defeats the very purpose for the enactment.[51]

Given the foregoing deviations of police officer Esternon from the standard and normal
procedure in the implementation of the warrant and in taking post-seizure custody of the
evidence, the blind reliance by the trial court and the Court of Appeals on the presumption of
regularity in the conduct of police duty is manifestly misplaced. The presumption of regularity is
merely just thata mere presumption disputable by contrary proof and which when challenged by
the evidence cannot be regarded as binding truth.[52] Suffice it to say that this presumption cannot
preponderate over the presumption of innocence that prevails if not overthrown by proof beyond
reasonable doubt.[53] In the present case the lack of conclusive identification of the illegal drugs
allegedly seized from petitioner, coupled with the irregularity in the manner by which the same
were placed under police custody before offered in court, strongly militates a finding of guilt.

In our constitutional system, basic and elementary is the presupposition that the burden of
proving the guilt of an accused lies on the prosecution which must rely on the strength of its own
evidence and not on the weakness of the defense. The rule is invariable whatever may
be the reputation of the accused, for the law presumes his innocence unless and until the contrary
is shown.[54] In dubio pro reo. When moral certainty as to culpability hangs in the balance,
acquittal on reasonable doubt inevitably becomes a matter of right.

WHEREFORE, the assailed Decision of the Court of Appeals dated 27 January 2006
affirming with modification the judgment of conviction of the Regional Trial Court
of Sorsogon City, Branch 52, and its Resolution dated 30 May 2006 denying reconsideration
thereof, are REVERSED and SET ASIDE. Petitioner Junie Malillin y Lopez
is ACQUITTED on reasonable doubt and is accordingly ordered immediately released from
custody unless he is being lawfully held for another offense.

The Director of the Bureau of Corrections is directed to implement this Decision and to
report to this Court the action taken hereon within five (5) days from receipt.

SO ORDERED.

+++++++++++++
G.R No. L-8320, December 20, 1995People of the Philippines v. Sim Ben
FACTS:
The appellant was found guilty by the Court of First Instance of Cebu for violatingparagraph 3,
Article 201 of the Revised Penal Code, for exhibiting cinematographic films ofindecent or
immoral scenes inside his establishment, a restaurant which is a place open topublic view, on the
sole ground that he entered a plea of guilty to the information without theaid of legal counsel.
The court informed the appellant of his right to have a counsel, which theappellant rejected. The
court asked him if he insist
ed on his plea of guilty and answered “Yes,sir.” It is shown that the Court fully complied with its
duty when it informed the appellant of his
right. The appellant showed that he is fully aware of the consequences of the plea he
entered,waiving his right to have the aid of counsel and entered plea of guilty. However,
appellantclaimed that he only entered the plea of guilty because the fiscal promised him that only
a finewould be imposed.
ISSUE:
Whether or not the appe
llant’s plea of guilty is violativ
e of Rule 138, section 34 of theRules of Court.
HELD:
No.
The Court hasn’t been negligent on its duty to inform the appellant of his right to
have a counsel and to make sure that he is fully aware of the consequences of the plea
of guiltywhich will imposed the punishment provided for by law upon him if he pleaded guilty.
Notwithstanding the Court’s precaution and warning, the appellant insistently waived his right
to have the aid of legal counsel and entered a plea of guilty to the information.
Therecommendation of the fiscal that only a fine be imposed upon the appellant seems to bear
outhis claim; but such recommendation or one of leniency does not mean that the appellant is
notguilty of the crime charged against him. A promise to recommend a specific penalty such as
finedoes not render the sentence void if the Court ignores the recommendation and metes out
tothe defendant a penalty which is provided by law.

G.R. No. 159751 December 6, 2006

GAUDENCIO E. FERNANDO and RUDY ESTORNINOS, petitioners,

vs.
COURT OF APPEALS, respondent.

DECISION

QUISUMBING, J.:

This petition for review on certiorari assails the Decision1 dated March 21, 2003 and the
Resolution dated September 2, 2003, of the Court of Appeals in CA-G.R. CR No. 25796, which
affirmed the Decision of the Regional Trial Court of Manila (RTC), Branch 21, in Criminal Case No.
99-176582.

The RTC convicted Gaudencio E. Fernando and Rudy Estorninos for violation of Article 201 2 of the
Revised Penal Code, as amended by Presidential Decree Nos. 960 and 969, and sentenced each to
imprisonment of four (4) years and one (1) day to six (6) years of prision correccional, and to pay the
fine of P6,000 and cost of suit.

The facts as culled from the records are as follows.

Acting on reports of sale and distribution of pornographic materials, officers of the Philippine National
Police Criminal Investigation and Detection Group in the National Capital Region (PNP-CIDG NCR)
conducted police surveillance on the store bearing the name of Gaudencio E. Fernando Music Fair
(Music Fair). On May 5, 1999, Judge Perfecto Laguio of the Regional Trial Court of Manila, Branch
19, issued Search Warrant No. 99-1216 for violation of Article 201 of the Revised Penal Code
against petitioner Gaudencio E. Fernando and a certain Warren Tingchuy. The warrant ordered the
search of Gaudencio E. Fernando Music Fair at 564 Quezon Blvd., corner Zigay Street, Quiapo,
Manila, and the seizure of the following items:
 a. Copies of New Rave Magazines with nude obscene pictures;

b. Copies of IOU Penthouse Magazine with nude obscene pictures;

c. Copies of Hustler International Magazine with nude obscene pictures; and

d. Copies of VHS tapes containing pornographic shows.3

On the same day, police officers of the PNP-CIDG NCR served the warrant on Rudy Estorninos,
who, according to the prosecution, introduced himself as the store attendant of Music Fair. The
police searched the premises and confiscated twenty-five (25) VHS tapes and ten (10) different
magazines, which they deemed pornographic.

On September 13, 1999, petitioners with Warren Tingchuy, were charged in an Information which
reads as follows:

That on or about May 5, 1999, in the City of Manila, Philippines, the said accused, did then
and there willfully, unlawfully, feloniously, publicly and jointly exhibit indecent or immoral acts,
scenes or shows at Music Fair, located at 564 Quezon Blvd., corner Zigay [S]t., Quiapo[,] this
City[,] by then and there selling and exhibiting obscene copies of x-rated VHS Tapes, lewd
films depicting men and women having sexual intercourse[,] lewd photographs of nude men
and women in explicating (sic) positions which acts serve no other purpose but to satisfy the
market for lust or pornography to public view.

Contrary to law.4

When arraigned, petitioners and Tingchuy pleaded not guilty to the offense charged. Thereafter, trial
ensued.

The prosecution offered the confiscated materials in evidence and presented the following
witnesses: Police Inspector Rodolfo L. Tababan, SPO4 Rolando Buenaventura and Barangay
Chairperson Socorro Lipana, who were all present during the raid. After the prosecution presented
its evidence, the counsel for the accused moved for leave of court to file a demurrer to evidence,
which the court granted. On October 5, 2000, the RTC however denied the demurrer to evidence
and scheduled the reception of evidence for the accused. A motion for reconsideration was likewise
denied.

Thereafter, the accused waived their right to present evidence and instead submitted the case for
decision.5

The RTC acquitted Tingchuy for lack of evidence to prove his guilt, but convicted herein petitioners
as follows:

WHEREFORE, premises considered, the Court finds accused GAUDENCIO FERNANDO

and RUDY ESTORNINOS GUILTY beyond reasonable doubt of the crime charged and are
hereby sentenced to suffer the indeterminate penalty of FOUR (4) YEARS and ONE (1) DAY
as minimum to SIX (6) YEARS of prision correccional as maximum, to pay fine of P6,000.00
each and to pay the cost.

For failure of the prosecution to prove the guilt of accused WARREN TINGCHUY beyond
reasonable doubt, he is hereby ACQUITTED of the crime charged.
 The VHS tapes and the nine (9) magazines utilized as evidence in this case are hereby
confiscated in favor of the government.

SO ORDERED.6

Petitioners appealed to the Court of Appeals. But the appellate courtlatter affirmed in toto the
decision of the trial court, as follows,

WHEREFORE, finding no reversible error on the part of the trial court, the decision appealed
from is AFFIRMED IN TOTO.

Costs against accused-appellants.

SO ORDERED.7

Hence the instant petition assigning the following errors:

I. Respondent court erred in convicting petitioner Fernando even if he was not present at the
time of the raid

II. Respondent erred in convicting petitioner Estorninos who was not doing anything illegal at
the time of the raid.8

Simply, the issue in this case is whether the appellate court erred in affirming the petitioners’
conviction.

Petitioners contend that the prosecution failed to prove that at the time of the search, they were
selling pornographic materials. Fernando contends that since he was not charged as the owner of an
establishment selling obscene materials, the prosecution must prove that he was present during the
raid and that he was selling the said materials. Moreover, he contends that the appellate court’s
reason for convicting him, on a presumption of continuing ownership shown by an expired mayor’s
permit, has no sufficient basis since the prosecution failed to prove his ownership of the
establishment. Estorninos, on the other hand, insists that he was not an attendant in Music Fair, nor
did he introduce himself so.9

The Solicitor General counters that owners of establishments selling obscene publications are
expressly held liable under Article 201, and petitioner Fernando’s ownership was sufficiently proven.
As the owner, according to the Solicitor General, Fernando was naturally a seller of the prohibited
materials and liable under the Information. The Solicitor General also maintains that Estorninos was
identified by Barangay Chairperson Socorro Lipana as the store attendant, thus he was likewise
liable.10

At the outset, we note that the trial court gave petitionersthem the opportunity to adduce present
their evidence to disprove refute the prosecution’s evidence. 11 . Instead, they waived their right to
present evidence and opted to submitted the case for decision.a1 12 The trial court therefore resolved
the case on the basis of prosecution’s evidence against the petitioners.

As obscenity is an unprotected speech which the State has the right to regulate, the State in
pursuing its mandate to protect, as parens patriae, the public from obscene, immoral and indecent
materials must justify the regulation or limitation.
One such regulation is Article 201 of the Revised Penal Code. To be held liable, the prosecution
must prove that (a) the materials, publication, picture or literature are obscene; and (b) the offender
sold, exhibited, published or gave away such materials. 13 Necessarily, that the confiscated materials
are obscene must be proved.

Almost a century has passed since the Court first attempted to define obscenity in People v.
Kottinger.14 There the Court defined obscenity as something which is offensive to chastity, decency
or delicacy. The test to determine the existence of obscenity is, whether the tendency of the matter
charged as obscene, is to deprave or corrupt those whose minds are open to such immoral
influences and into whose hands a publication or other article charged as being obscene may
fall.15 Another test according to Kottinger is "that which shocks the ordinary and common sense of
men as an indecency."16 But, Kottinger hastened to say that whether a picture is obscene or indecent
must depend upon the circumstances of the case, and that ultimately, the question is to be decided
by the judgment of the aggregate sense of the community reached by it. 17

Thereafter, the Court in People v. Go Pin18 and People v. Padan y Alova, et al.,19 involving a
prosecution under Article 201 of the Revised Penal Code, laid the tests which did little to clearly draw
the fine lines of obscenity.

In People v. Go Pin, the Court said:

If such pictures, sculptures and paintings are shown in art exhibits and art galleries for the
cause of art, to be viewed and appreciated by people interested in art, there would be no
offense committed. However, the pictures here in question were used not exactly for art’s
sake but rather for commercial purposes. In other words, the supposed artistic qualities of
said pictures were being commercialized so that the cause of art was of secondary or minor
importance. Gain and profit would appear to have been the main, if not the exclusive
consideration in their exhibition; and it would not be surprising if the persons who went to see
those pictures and paid entrance fees for the privilege of doing so, were not exactly artists
and persons interested in art and who generally go to art exhibitions and galleries to satisfy
and improve their artistic tastes, but rather people desirous of satisfying their morbid curiosity
and taste, and lust, and for love [of] excitement, including the youth who because of their
immaturity are not in a position to resist and shield themselves from the ill and perverting
effects of these pictures.20

People v. Padan y Alova, et al. in a way reaffirmed the standards set in Go Pin but with its own test
of "redeeming feature." The Court therein said that:

[A]n actual exhibition of the sexual act, preceded by acts of lasciviousness, can have no
redeeming feature. In it, there is no room for art. One can see nothing in it but clear and
unmitigated obscenity, indecency, and an offense to public morals, inspiring and causing as it
does, nothing but lust and lewdness, and exerting a corrupting influence specially on the
youth of the land.21

Notably, the Court in the later case of Gonzales v. Kalaw Katigbak,22 involving motion pictures, still
applied the "contemporary community standards" of Kottinger but departed from the rulings
of Kottinger, Go Pin and Padan y Alova in that the Court measures obscenity in terms of the
"dominant theme" of the material taken as a "whole" rather than in isolated passages.

Later, in Pita v. Court of Appeals, concerning alleged pornographic publications, the Court
recognized that Kottinger failed to afford a conclusive definition of obscenity, and that both Go
Pin and Padan y Alova raised more questions than answers such as, whether the absence or
presence of artists and persons interested in art and who generally go to art exhibitions and galleries
to satisfy and improve their artistic tastes, determine what art is; or that if they find inspiration in the
exhibitions, whether such exhibitions cease to be obscene. 23 Go Pin and Padan y Alova gave too
much latitude for judicial arbitrament, which has permitted ad lib of ideas and "two-cents worths"
among judges as to what is obscene or what is art. 24

The Court in Pita also emphasized the difficulty of the question and pointed out how hazy
jurisprudence is on obscenity and how jurisprudence actually failed to settle questions on the matter.
Significantly, the dynamism of human civilization does not help at all. It is evident that individual
tastes develop, adapt to wide-ranging influences, and keep in step with the rapid advance of
civilization.25 It seems futile at this point to formulate a perfect definition of obscenity that shall apply
in all cases.

There is no perfect definition of "obscenity" but the latest word is that of Miller v. California which
established basic guidelines, to wit: (a) whether to the average person, applying contemporary
standards would find the work, taken as a whole, appeals to the prurient interest; (b) whether the
work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the
applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic,
political, or scientific value.26 But, it would be a serious misreading of Miller to conclude that the trier
of facts has the unbridled discretion in determining what is "patently offensive." 27 No one will be
subject to prosecution for the sale or exposure of obscene materials unless these materials depict or
describe patently offensive "hard core" sexual conduct. 28 Examples included (a) patently offensive
representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated; and
(b) patently offensive representations or descriptions of masturbation, excretory functions, and lewd
exhibition of the genitals.29 What remains clear is that obscenity is an issue proper for judicial
determination and should be treated on a case to case basis and on the judge’s sound discretion.

In this case, the trial court found the confiscated materials obscene and the Court of Appeals
affirmed such findings. The trial court in ruling that the confiscated materials are obscene, reasoned
as follows:

Are the magazines and VHS tapes confiscated by the raiding team obscene or offensive to
morals? . . .

Pictures of men and women in the nude doing the sexual act appearing in the nine (9)
confiscated magazines namely Dalaga, Penthouse, Swank, Erotic, Rave, Playhouse, Gallery
and two (2) issues of QUI are offensive to morals and are made and shown not for the sake
of art but rather for commercial purposes, that is gain and profit as the exclusive
consideration in their exhibition. The pictures in the magazine exhibited indecent and
immoral scenes and acts…The exhibition of the sexual act in their magazines is but a clear
and unmitigated obscenity, indecency and an offense to public morals, inspiring…lust and
lewdness, exerting a corrupting influence especially on the youth. (Citations omitted)

The VHS tapes also [exhibit] nude men and women doing the sexual intercourse. The tape
entitled "Kahit sa Pangarap Lang" with Myra Manibog as the actress shows the naked body
of the actress. The tape exhibited indecent and immoral scenes and acts. Her dancing
movements excited the sexual instinct of her male audience. The motive may be innocent,
but the performance was revolting and shocking to good minds...

In one (1) case the Supreme Court ruled:

 Since the persons who went to see those pictures and paid entrance fees were
usually not artists or persons interested in art to satisfy and inspire their artistic tastes
but persons who are desirous of satisfying their morbid curiosity, taste and lust and
for [love] of excitement, including the youth who because of their immaturity are not
in a position to resist and shield themselves from the ill and perverting effects of the
pictures, the display of such pictures for commercial purposes is a violation of Art.
201. If those pictures were shown in art exhibits and art galleries for the cause of art,
to be viewed and appreciated by people interested in art, there would be no offense
committed (People vs. Go Pin, 97 Phil 418).

[B]ut this is not so in this case.30

Findings of fact of the Court of Appeals affirming that of the trial court are accorded great respect,
even by this Court, unless such findings are patently unsupported by the evidence on record or the
judgment itself is based on misapprehension of facts.31 In this case, petitioners neither presented
contrary evidence nor questioned the trial court’s findings. There is also no showing that the trial
court, in finding the materials obscene, was arbitrary.

Did petitioners participate in the distribution and exhibition of obscene materials?

We emphasize that mere possession of obscene materials, without intention to sell, exhibit, or give
them away, is not punishable under Article 201, considering the purpose of the law is to prohibit the
dissemination of obscene materials to the public. The offense in any of the forms under Article 201 is
committed only when there is publicity.32The law does not require that a person be caught in the act
of selling, giving away or exhibiting obscene materials to be liable, for as long as the said materials
are offered for sale, displayed or exhibited to the public. In the present case, we find that petitioners
are engaged in selling and exhibiting obscene materials.

Notably, the subject premises of the search warrant was the Gaudencio E. Fernando Music Fair,
named after petitioner Fernando.33 The mayor’s permit was under his name. Even his bail bond
shows that Hhe lives in the same place.34 Moreover, the mayor’s permit dated August 8, 1996, shows
that he is the owner/operator of the store.35 While the mayor’s permit had already expired, it does not
negate the fact that Fernando owned and operated the establishment. It would be absurd to make
his failure to renew his business permit and illegal operation a shield from prosecution of an unlawful
act. Furthermore, when he preferred not to present contrary evidence, the things which he
possessed were presumptively his.36

Petitioner Estorninos is likewise liable as the store attendant actively engaged in selling and
exhibiting the obscene materials. Prosecution witness Police Inspector Tababan, who led the PNP-
CIDG NCR that conducted the search, identified him as the store attendant upon whom the search
warrant was served.37 Tababan had no motive for testifying falsely against Estorninos and we uphold
the presumption of regularity in the performance of his duties. Lastly, this Court accords great
respect to and treats with finality the findings of the trial court on the matter of credibility of
witnesses, absent any palpable error or arbitrariness in their findings. 38 In our view, no reversible
error was committed by the appellate court as well as the trial court in finding the herein petitioners
guilty as charged.

WHEREFORE, the Decision dated March 21, 2003 and the Resolution dated September 2, 2003, of
the Court of Appeals affirming the Decision of the Regional Trial Court of Manila, Branch 21, in
Criminal Case No. 99-176582 are hereby AFFIRMED.

SO ORDERED.
 EN BANC

[G.R. No. 119673. July 26, 1996]

IGLESIA NI CRISTO (INC.), petitioner, vs. THE HONORABLE COURT

OF APPEALS, BOARD OF REVIEW FOR MOTION PICTURES
AND TELEVISION and HONORABLE HENRIETTA S.
MENDEZ, respondents.

DECISION
PUNO, J.:

This is a petition for review of the Decision dated March 24, 1995 of the respondent
Court of Appeals affirming the action of the respondent Board of Review for Motion
Pictures and Television which x-rated the TV Program Ang Iglesia ni Cristo.
Petitioner Iglesia ni Cristo, a duly organized religious organization, has a television
program entitled Ang Iglesia ni Cristo aired on Channel 2 every Saturday and on
Channel 13 every Sunday. The program presents and propagates petitioners religious
beliefs, doctrines and practices often times in comparative studies with other religions.
Sometime in the months of September, October and November 1992, petitioner
submitted to the respondent Board of Review for Motion Pictures and Television the
VTR tapes of its TV program Series Nos. 116, 119, 121 and 128. The Board classified
the series as X or not for public viewing on the ground that they offend and constitute an
attack against other religions which is expressly prohibited by law.
Petitioner pursued two (2) courses of action against the respondent Board. On
November 28, 1992, it appealed to the Office of the President the classification of its TV
Series No. 128. It succeeded in its appeal for on December 18, 1992, the Office of the
President reversed the decision of the respondent Board. Forthwith, the Board allowed
Series No. 128 to be publicly telecast.
On December 14, 1992, petitioner also filed against the respondent Board Civil
Case No. Q-92-14280, with the RTC, NCR, Quezon City. Petitioner alleged that the
[1]

respondent Board acted without jurisdiction or with grave abuse of discretion in

requiring petitioner to submit the VTR tapes of its TV program and in x-rating them. It
cited its TV Program Series Nos. 115, 119, 121 and 128. In their Answer, respondent
Board invoked its power under P.D. No. 1986 in relation to Article 201 of the Revised
Penal Code.
On January 4, 1993, the trial court held a hearing on petitioners prayer for a writ of
preliminary injunction. The parties orally argued and then marked their documentary
evidence. Petitioner submitted the following as its exhibits, viz.:
 (1) Exhibit A, respondent Boards Voting Slip for Television showing its September 9,
1992 action on petitioners Series No. 115 as follows:[2]

REMARKS:

There are some inconsistencies in the particular program as it is very surprising for
this program to show series of Catholic ceremonies and also some religious sects and
using it in their discussion about the bible. There are remarks which are direct
criticism which affect other religions.

Need more opinions for this particular program. Please subject to more opinions.

(2) Exhibit A-1, respondent Boards Voting Slip for Television showing its September 11,
1992 subsequent action on petitioners Series No. 115 as follows:[3]

REMARKS:

This program is criticizing different religions, based on their own interpretation of the
Bible.

We suggest that the program should delve on explaining their own faith and beliefs
and avoid attacks on other faith.

(3) Exhibit B, respondent Boards Voting Slip for Television showing its October 9, 1992
action on petitioners Series No. 119, as follows:[4]

REMARKS:

The Iglesia ni Cristo insists on the literal translation of the bible and says that our
(Catholic) veneration of the Virgin Mary is not to be condoned because nowhere it is
found in the bible that we should do so.

This is intolerance and robs off all sects of freedom of choice, worship and decision.

(4) Exhibit C, respondent Boards Voting Slip for Television showing its October 20,
1992 action on petitioners Series No. 121 as follows:[5]

REMARKS:

I refuse to approve the telecast of this episode for reasons of the attacks, they do on,
specifically, the Catholic religion.

I refuse to admit that they can tell, dictate any other religion that they are right and the
rest are wrong, which they clearly present in this episode.
 (5) Exhibit D, respondent Boards Voting Slip for Television showing its November 20,
1992 action on petitioners Series No. 128 as follows:[6]

REMARKS:

The episode presented criticizes the religious beliefs of the Catholic and Protestants
beliefs.

We suggest a second review.

(6) Exhibits E, E-1, petitioners block time contract with ABS-CBN Broadcasting
Corporation dated September 1, 1992.[7]
(7) Exhibit F, petitioners Airtime Contract with Island Broadcasting Corporation.[8]
(8) Exhibit G, letter dated December 18, 1992 of former Executive Secretary Edelmiro
A. Amante, Sr., addressed to Henrietta S. Mendez reversing the decision of the
respondent Board which x-rated the showing of petitioners Series No. 129. The
letter reads in part:
xxx xxx xxx

The television episode in question is protected by the constitutional guarantee of free

speech and expression under Article III, Section 4 of the 1987 Constitution.

We have viewed a tape of the television episode in question, as well as studied the
passages found by MTRCB to be objectionable and we find no indication that the
episode poses any clear and present danger sufficient to limit the said constitutional
guarantee.

(9) Exhibits H, H-1, letter dated November 26, 1992 of Teofilo C. Ramos, Sr.,
addressed to President Fidel V. Ramos appealing the action of the respondent
Board x-rating petitioners Series No. 128.
On its part, respondent Board submitted the following exhibits, viz.:
(1) Exhibit 1, Permit Certificate for Television Exhibition No. 15181 dated December 18,
1992 allowing the showing of Series No. 128 under parental guidance.
(2) Exhibit 2, which is Exhibit G of petitioner.
(3) Exhibit 3, letter dated October 12, 1992 of Henrietta S. Mendez, addressed to the
Christian Era Broadcasting Service which reads in part:

xxx

In the matter of your television show Ang Iglesia ni Cristo Series No. 119, please be
informed that the Board was constrained to deny your show a permit to exhibit. The
material involved constitute an attack against another religion which is expressly
prohibited by law. Please be guided in the submission of future shows.

After evaluating the evidence of the parties, the trial court issued a writ of
preliminary injunction on petitioners bond of P10,000.00.
The trial court set the pre-trial of the case and the parties submitted their pre-trial
briefs. The pre-trial briefs show that the parties evidence is basically the evidence they
[9]

submitted in the hearing of the issue of preliminary injunction. The trial of the case was
set and reset several times as the parties tried to reach an amicable accord. Their
efforts failed and the records show that after submission of memoranda, the trial court
rendered a Judgment, on December 15, 1993, the dispositive portion of which reads:
[10]

xxx

WHEREFORE, judgment is hereby rendered ordering respondent Board of Review

for Motion Pictures and Television (BRMPT) to grant petitioner Iglesia ni Cristo the
necessary permit for all the series of Ang Iglesia ni Cristo program.

Petitioner Iglesia ni Cristo, however, is directed to refrain from offending and

attacking other existing religions in showing Ang Iglesia ni Cristo program.

SO ORDERED.

Petitioner moved for reconsideration praying: (a) for the deletion of the second
[11]

paragraph of the dispositive portion of the Decision, and (b) for the Board to be
perpetually enjoined from requiring petitioner to submit for review the tapes of its
program. The respondent Board opposed the motion. On March 7, 1993, the trial court
[12]

granted petitioners Motion for Reconsideration. It ordered: [13]

xxx

WHEREFORE, the Motion for Reconsideration is granted. The second portion of the
Courts Order dated December 15, 1993, directing petitioner to refrain from offending
and attacking other existing religions in showing Ang Iglesia ni Cristo program is
hereby deleted and set aside. Respondents are further prohibited from requiring
petitioner Iglesia ni Cristo to submit for review VTR tapes of its religious program
Ang Iglesia ni Cristo.

Respondent Board appealed to the Court of Appeals after its motion for
reconsideration was denied. [14]

On March 5, 1995, the respondent Court of Appeals reversed the trial court. It
[15]

ruled that: (1) the respondent board has jurisdiction and power to review the TV
program Ang Iglesia ni Cristo, and (2) the respondent Board did not act with grave
abuse of discretion when it denied permit for the exhibition on TV of the three series of
Ang Iglesia ni Cristo on the ground that the materials constitute an attack against
another religion. It also found the series indecent, contrary to law and contrary to good
customs.
In this petition for review on certiorari under Rule 45, petitioner raises the following
issues:
I

WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN

HOLDING THAT ANG IGLESIA NI CRISTO PROGRAM IS NOT
CONSTITUTIONALLY PROTECTED AS A FORM OF RELIGIOUS EXERCISE
AND EXPRESSION.
II

WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN NOT

HOLDING THAT BEING AN EXERCISE OF RELIGIOUS FREEDOM, THE ANG
IGLESIA NI CRISTO PROGRAM IS SUBJECT TO THE POLICE POWER OF THE
STATE ONLY IN THE EXTREME CASE THAT IT POSES A CLEAR AND
PRESENT DANGER.
III

WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN

HOLDING THAT THE MTRCB IS VESTED WITH THE POWER TO CENSOR
RELIGIOUS PROGRAMS.
IV

WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN

HOLDING THAT THE ANG IGLESIA NI CRISTO, A PURELY RELIGIOUS
PROGRAM IS INDECENT AND CONTRARY TO LAW AND GOOD CUSTOMS.

The basic issues can be reduced into two: (1) first, whether the respondent Board
has the power to review petitioners TV program Ang Iglesia ni Cristo, and (2) second,
assuming it has the power, whether it gravely abused its discretion when it prohibited
the airing of petitioners religious program, series Nos. 115, 119 and 121, for the reason
that they constitute an attack against other religions and that they are indecent, contrary
to law and good customs.
The first issue can be resolved by examining the powers of the Board under
P.D. No. 1986. Its Section 3 pertinently provides:
Sec. 3 Powers and Functions. The BOARD shall have the following functions,
powers and duties:

xxx xxx xxx

b) To screen, review and examine all motion pictures as herein defined, television
programs, including publicity materials such as advertisements, trailers and stills,
whether such motion pictures and publicity materials be for theatrical or non-
theatrical distribution for television broadcast or for general viewing, imported or
produced in the Philippines and in the latter case, whether they be for local viewing or
for export.

c) To approve, delete objectionable portion from and/or prohibit the importation,

exportation, production, copying, distribution, sale, lease, exhibition and/or
television broadcast of the motion pictures, television programs and publicity
materials, subject of the preceding paragraph, which, in the judgment of the BOARD
applying contemporary Filipino cultural values as standard, are objectionable for
being immoral, indecent, contrary to law and/or good customs, injurious to the
prestige of the Republic of the Philippines and its people, or with a dangerous
tendency to encourage the commission of violence or of a wrong or crime, such as but
not limited to:

i) Those which tend to incite subversion, insurrection, rebellion or sedition against the
State, or otherwise threaten the economic and/or political stability of the State;

ii) Those which tend to undermine the faith and confidence of the people, their
government and/or duly constituted authorities;

iii) Those which glorify criminals or condone crimes;

iv) Those which serve no other purpose but to satisfy the market for violence or
pornography;

v) Those which tend to abet the traffic in and use of prohibited drugs;

vi) Those which are libelous or defamatory to the good name and reputation of any
person, whether living or dead;

vii) Those which may constitute contempt of court or of any quasi-judicial tribunal, or
pertain to matters which are sub-judice in nature (emphasis ours).

The law gives the Board the power to screen, review and examine all television
programs. By the clear terms of the law, the Board has the power to approve, delete x
x x and/or prohibit the x x x exhibition and/or television broadcast of x x x television
programs x x x. The law also directs the Board to apply contemporary Filipino cultural
values as standard to determine those which are objectionable for being immoral,
indecent, contrary to law and/or good customs, injurious to the prestige of the Republic
of the Philippines and its people, or with a dangerous tendency to encourage the
commission of violence or of a wrong or crime.
Petitioner contends that the term television program should not include religious
programs like its program Ang Iglesia ni Cristo. A contrary interpretation, it is urged, will
contravene Section 5, Article III of the Constitution which guarantees that no law shall
be made respecting an establishment of religion, or prohibiting the free exercise
thereof. The free exercise and enjoyment of religious profession and worship, without
discrimination or preference, shall forever be allowed.
We reject petitioners submission which need not set us adrift in a constitutional
voyage towards an uncharted sea. Freedom of religion has been accorded a preferred
status by the framers of our fundamental laws, past and present. We have affirmed this
preferred status well aware that it is designed to protect the broadest possible liberty of
conscience, to allow each man to believe as his conscience directs, to profess his
beliefs, and to live as he believes he ought to live, consistent with the liberty of others
and with the common good. We have also laboriously defined in our jurisprudence the
[16]

intersecting umbras and penumbras of the right to religious profession and worship. To
quote the summation of Mr. Justice Isagani Cruz, our well-known constitutionalist: [17]

Religious Profession and Worship

The right to religious profession and worship has a two-fold aspect, viz., freedom to
believe and freedom to act on ones beliefs. The first is absolute as long as the belief is
confined within the realm of thought. The second is subject to regulation where the
belief is translated into external acts that affect the public welfare.

(1) Freedom to Believe

The individual is free to believe (or disbelieve) as he pleases concerning the

hereafter. He may indulge his own theories about life and death; worship any god he
chooses, or none at all; embrace or reject any religion; acknowledge the divinity of
God or of any being that appeals to his reverence; recognize or deny the immortality
of his soul in fact, cherish any religious conviction as he and he alone sees
fit. However absurd his beliefs may be to others, even if they be hostile and heretical
to the majority, he has full freedom to believe as he pleases. He may not be required to
prove his beliefs. He may not be punished for his inability to do so. Religion, after all,
is a matter of faith. Men may believe what they cannot prove. Every one has a right to
his beliefs and he may not be called to account because he cannot prove what he
believes.
 (2) Freedom to Act on Ones Beliefs

But where the individual externalizes his beliefs in acts or omissions that affect
the public, his freedom to do so becomes subject to the authority of the State. As
great as this liberty may be, religious freedom, like all the other rights guaranteed in
the Constitution, can be enjoyed only with a proper regard for the rights of others. It is
error to think that the mere invocation of religious freedom will stalemate the
State and render it impotent in protecting the general welfare. The inherent police
power can be exercised to prevent religious practices inimical to society. And this is
true even if such practices are pursued out of sincere religious conviction and not
merely for the purpose of evading the reasonable requirements or prohibitions of the
law.

Justice Frankfurter put it succinctly: The constitutional provision on religious

freedom terminated disabilities, it did not create new privileges. It gave religious liberty,
not civil immunity. Its essence is freedom from conformity to religious dogma, not
freedom from conformity to law because of religious dogma.
Accordingly, while one has full freedom to believe in Satan, he may not offer the
object of his piety a human sacrifice, as this would be murder. Those who literally
interpret the Biblical command to go forth and multiply are nevertheless not allowed to
contract plural marriages in violation of the laws against bigamy. A person cannot refuse
to pay taxes on the ground that it would be against his religious tenets to recognize any
authority except that of God alone. An atheist cannot express his disbelief in acts of
derision that wound the feelings of the faithful. The police power can be validly asserted
against the Indian practice of the suttee born of deep religious conviction, that calls on
the widow to immolate herself at the funeral pile of her husband.
We thus reject petitioners postulate that its religious program is per se beyond
review by the respondent Board. Its public broadcast on TV of its religious program
brings it out of the bosom of internal belief.Television is a medium that reaches even the
eyes and ears of children. The Court iterates the rule that the exercise of religious
freedom can be regulated by the State when it will bring about the clear and present
danger of some substantive evil which the State is duty bound to prevent, i.e., serious
detriment to the more overriding interest of public health, public morals, or public
welfare. A laissez faire policy on the exercise of religion can be seductive to the liberal
mind but history counsels the Court against its blind adoption as religion is and
continues to be a volatile area of concern in our country today. Across the sea and in
our shore, the bloodiest and bitterest wars fought by men were caused by irreconcilable
religious differences. Our country is still not safe from the recurrence of this stultifying
strife considering our warring religious beliefs and the fanaticism with which some of us
cling and claw to these beliefs. Even now, we have yet to settle the near century old
strife in Mindanao, the roots of which have been nourished by the mistrust and
misunderstanding between our Christian and Muslim brothers and sisters. The
bewildering rise of weird religious cults espousing violence as an article of faith also
proves the wisdom of our rule rejecting a strict let alone policy on the exercise of
religion. For sure, we shall continue to subject any act pinching the space for the
free exercise of religion to a heightened scrutiny but we shall not leave its
rational exercise to the irrationality of man. For when religion divides and its
exercise destroys, the State should not stand still.
It is also petitioners submission that the respondent appellate court gravely erred
when it affirmed the ruling of the respondent Board x-rating its TV Program Series Nos.
115, 119, 121 and 128. The records show that the respondent Board disallowed the
program series for attacking other religions. Thus, Exhibits A, A-1, (respondent Boards
Voting Slip for Television) reveal that its reviewing members x-rated Series 115 for x x x
criticizing different religions, based on their own interpretation of the Bible. They
suggested that the program should only explain petitioners x x x own faith and beliefs
and avoid attacks on other faiths.Exhibit B shows that Series No. 119 was x-rated
because the Iglesia ni Cristo insists on the literal translation of the bible and says that
our Catholic veneration of the Virgin Mary is not to be condoned because nowhere it is
found in the bible that we should do so. This is intolerance x x x. Exhibit C shows that
Series No. 121 was x-rated x x x for reasons of the attacks, they do on, specifically, the
Catholic religion. x x x (T)hey can not tell, dictate any other religion that they are right
and the rest are wrong x x x. Exhibit D also shows that Series No. 128 was not
favorably recommended because it x x x outrages Catholic and Protestants beliefs. On
second review, it was x-rated because of its unbalanced interpretations of some parts of
the Bible. In sum, the respondent Board x-rated petitioners TV program series Nos.
[18]

115, 119, 121 and 128 because of petitioners controversial biblical interpretations and
its attacks against contrary religious beliefs. The respondent appellate court agreed and
even held that the said attacks are indecent, contrary to law and good customs.
We reverse the ruling of the appellate court.
First. Deeply ensconced in our fundamental law is its hostility against all prior
restraints on speech, including religious speech. Hence, any act that restrains speech is
hobbled by the presumption of invalidity and should be greeted with furrowed brows. It [19]

is the burden of the respondent Board to overthrow this presumption. If it fails to

discharge this burden, its act of censorship will be struck down. It failed in the case at
bar.
Second. The evidence shows that the respondent Board x-rated petitioners TV
series for attacking other religions, especially the Catholic church. An examination of the
evidence, especially Exhibits A, A-1, B, C, and D will show that the so-called attacks are
mere criticisms of some of the deeply held dogmas and tenets of other religions. The
videotapes were not viewed by the respondent court as they were not presented as
evidence. Yet they were considered by the respondent court as indecent, contrary to law
and good customs, hence, can be prohibited from public viewing under Section 3(c) of
PD 1986. This ruling clearly suppresses petitioners freedom of speech and interferes
with its right to free exercise of religion. It misappreciates the essence of freedom to
differ as delineated in the benchmark case of Cantwell v. Connecticut, viz.:
[20]

xxx xxx xxx

In the realm of religious faith, and in that of political belief, sharp differences arise. In
both fields, the tenets of one man may seem the rankest error to his neighbor. To
persuade others to his own point of view, the pleader, as we know, at times, resorts to
exaggeration, to vilification of men who have been, or are prominent in church or
state or even to false statements. But the people of this nation have ordained in the
light of history that inspite of the probability of excesses and abuses, these liberties
are, in the long view, essential to enlightened opinion and right conduct on the part of
the citizens of democracy.

The respondent Board may disagree with the criticisms of other religions by
petitioner but that gives it no excuse to interdict such criticisms, however, unclean they
may be. Under our constitutional scheme, it is not the task of the State to favor any
religion by protecting it against an attack by another religion. Religious dogmas and
beliefs are often at war and to preserve peace among their followers, especially the
fanatics, the establishment clause of freedom of religion prohibits the State from leaning
towards any religion. Vis-a-vis religious differences, the State enjoys no banquet of
options. Neutrality alone is its fixed and immovable stance. In fine, respondent board
cannot squelch the speech of petitioner Iglesia ni Cristo simply because it attacks other
religions, even if said religion happens to be the most numerous church in our
country. In a State where there ought to be no difference between the appearance and
the reality of freedom of religion, the remedy against bad theology is better
theology. The bedrock of freedom of religion is freedom of thought and it is best served
by encouraging the marketplace of dueling ideas. When the luxury of time permits, the
marketplace of ideas demands that speech should be met by more speech for it is the
spark of opposite speech, the heat of colliding ideas that can fan the embers of truth.
Third. The respondents cannot also rely on the ground attacks against another
religion in x-rating the religious program of petitioner. Even a sideglance at Section 3 of
PD 1986 will reveal that it is not among the grounds to justify an order prohibiting the
broadcast of petitioners television program. The ground attack against another religion
was merely added by the respondent Board in its Rules. This rule is void for it runs
[21]

smack against the hoary doctrine that administrative rules and regulations cannot
expand the letter and spirit of the law they seek to enforce.
It is opined that the respondent board can still utilize attack against any religion as a
ground allegedly x x x because Section 3 (c) of PD 1986 prohibits the showing of motion
pictures, television programs and publicity materials which are contrary to law and
Article 201 (2) (b) (3) of the Revised Penal Code punishes anyone who exhibits shows
which offend any race or religion. We respectfully disagree for it is plain that the word
attack is not synonymous with the word offend. Moreover, Article 201 (2) (b) (3) of the
Revised Penal Code should be invoked to justify the subsequent punishment of a
show which offends any religion.It cannot be utilized to justify prior censorship of
speech. It must be emphasized that E.O. 876, the law prior to PD 1986, included attack
against any religion as a ground for censorship. The ground was not, however, carried
over by PD 1986. Its deletion is a decree to disuse it. There can be no other
intent. Indeed, even the Executive Department espouses this view. Thus, in an Opinion
dated November 28, 1985 then Minister of Justice, now President of the Senate, Neptali
Gonzales explained:

xxx

However, the question whether the BRMPT (now MTRCB) may preview and censor
the subject television program of INC should be viewed in the light of the provision of
Section 3, paragraph (c) of PD 1986, which is substantially the same as the provision
of Section 3, paragraph (c) of E.O. No. 876-A, which prescribes the standards of
censorship, to wit: immoral, indecent, contrary to law and/or good customs, injurious
to the prestige of the Republic of the Philippines or its people or with dangerous
tendency to encourage the commission of violence, or of a wrong as determined by
the Board, applying contemporary Filipino cultural values as standard. As stated, the
intention of the Board to subject the INCs television program to previewing and
censorship is prompted by the fact that its religious program makes mention of beliefs
and practices of other religion. On the face of the law itself, there can conceivably be
no basis for censorship of said program by the Board as much as the alleged reason
cited by the Board does not appear to be within the contemplation of the standards of
censorship set by law. (Italics supplied)

Fourth. In x-rating the TV program of the petitioner, the respondents failed to

apply the clear and present danger rule. In American Bible Society v. City of Manila,
this Court held: The constitutional guaranty of free exercise and enjoyment of religious
[22]

profession and worship carries with it the right to disseminate religious information. Any
restraint of such right can be justified like other restraints on freedom of expression on
the ground that there is a clear and present danger of any substantive evil which the
State has the right to prevent. In Victoriano vs. Elizalde Rope Workers Union, we [23]

further ruled that x x x it is only where it is unavoidably necessary to prevent

an immediate and grave danger to the security and welfare of the community that
infringement of religious freedom may be justified, and only to the smallest extent
necessary to avoid the danger.
The records show that the decision of the respondent Board, affirmed by the
respondent appellate court, is completely bereft of findings of facts to justify
the conclusion that the subject video tapes constitute impermissible attacks against
another religion. There is no showing whatsoever of the type of harm the tapes will
bring about especially the gravity and imminence of the threatened harm. Prior
restraint on speech, including religious speech, cannot be justified by
hypothetical fears but only by the showing of a substantive and imminent evil
which has taken the life of a reality already on ground.
It is suggested that we re-examine the application of clear and present danger rule
to the case at bar. In the United States, it is true that the clear and present danger test
has undergone permutations. It was Mr. Justice Holmes who formulated the test
in Schenck v. US, as follows: x x x the question in every case is whether the words
[24]
used are used in such circumstances and are of such a nature as to create a clear and
present danger that they will bring about the substantive evils that Congress has a right
to prevent. Admittedly, the test was originally designed to determine the latitude which
should be given to speech that espouses anti-government action. Bannered by
Justices Holmes and Brandeis, the test attained its full flowering in the decade of the
forties, when its umbrella was used to protect speech other than subversive speech.
Thus, for instance, the test was applied to annul a total ban on labor picketing. The
[25] [26]

use of the test took a downswing in the 1950s when the US Supreme Court
decided Dennis v. United Statesinvolving communist conspiracy. In Dennis, the
[27]

components of the test were altered as the High Court adopted Judge Learned Hands
formulation that x x x in each case [courts] must ask whether the gravity of the evil,
discounted by its improbability, justifies such invasion of free speech as is necessary to
avoid the danger. The imminence requirement of the test was thus diminished and to
that extent, the protection of the rule was weakened. In 1969, however, the strength of
the test was reinstated in Brandenburg v. Ohio, when the High Court restored in the
[28]

test the imminence requirement, and even added an intent requirement which according
to a noted commentator ensured that only speech directed at inciting lawlessness could
be punished. Presently in the United States, the clear and present danger test is not
[29]

applied to protect low value speeches such as obscene speech, commercial speech
and defamation. Be that as it may, the test is still applied to four types of
speech: speech that advocates dangerous ideas, speech that provokes a hostile
audience reaction, out of court contempt and release of information that endangers a
fair trial. Hence, even following the drift of American jurisprudence, there is reason to
[30]

apply the clear and present danger test to the case at bar which concerns speech that
attacks other religions and could readily provoke hostile audience reaction. It cannot be
doubted that religious truths disturb and disturb terribly.
It is also opined that it is inappropriate to apply the clear and present danger test to
the case at bar because the issue involves the content of speech and not the time,
place or manner of speech. Allegedly, unless the speech is first allowed, its impact
cannot be measured, and the causal connection between the speech and the evil
apprehended cannot be established. The contention overlooks the fact that the case at
bar involves videotapes that are pre-taped and hence, their speech content is known
and not an X quantity. Given the specific content of the speech, it is not unreasonable to
assume that the respondent Board, with its expertise, can determine whether its sulphur
will bring about the substantive evil feared by the law.
Finally, it is also opined by Mr. Justice Kapunan that x x x the determination of the
question as to whether or not such vilification, exaggeration or fabrication falls within or
lies outside the boundaries of protected speech or expression is a judicial
function which cannot be arrogated by an administrative body such as a Board of
Censors. He submits that a system of prior restraint may only be validly administered
by judges and not left to administrative agencies. The same submission is made by Mr.
Justice Mendoza.
This thoughtful thesis is an attempt to transplant another American rule in our
jurisdiction. Its seedbed was laid down by Mr. Justice Brennan in his concurring opinion
in the 1962 case of Manual Enterprise v. Day. By 1965, the US Supreme Court
[31]
in Freedman v. Maryland was ready to hold that the teaching of cases is that,
[32]

because only a judicial determination in an adversary proceeding ensures the

necessary sensitivity to freedom of expression, only a procedure requiring a judicial
determination suffices to impose a valid final restraint.
[33]

While the thesis has a lot to commend itself, we are not ready to hold that it is
unconstitutional for Congress to grant an administrative body quasi-judicial power to
preview and classify TV programs and enforce its decision subject to review by our
courts. As far back as 1921, we upheld this set-up in Sotto vs. Ruiz, viz.:
[34]

The use of the mails by private persons is in the nature of a privilege which can be
regulated in order to avoid its abuse. Persons possess no absolute right to put into the
mail anything they please, regardless of its character.

On the other hand, the exclusion of newspaper and other publications from the
mails, in the exercise of executive power, is extremely delicate in nature and can only
be justified where the statute is unequivocably applicable to the supposed objectionable
publication. In excluding any publication for the mails, the object should be not to
interfere with the freedom of the press or with any other fundamental right of the
people. This is the more true with reference to articles supposedly libelous than to other
particulars of the law, since whether an article is or is not libelous, is fundamentally a
legal question. In order for there to be due process of law, the action of the
Director of Posts must be subject to revision by the courts in case he had abused
his discretion or exceeded his authority. (Ex-parte Jackson [1878], 96 U.S.,
727; Public Clearing House vs. Coyne [1903], 194 U.S., 497; Post Publishing Co. vs.
Murray [1916], 23-Fed., 773)
As has been said, the performance of the duty of determining whether a
publication contains printed matter of a libelous character rests with the Director
of Posts and involves the exercise of his judgment and discretion. Every
intendment of the law is in favor of the correctness of his action. The rule is (and we go
only to those cases coming from the United States Supreme Court and pertaining to the
United States Postmaster-General), that the courts will not interfere with the decision of
the Director of Posts unless clearly of opinion that it was wrong. (Bates & Guilid Co. vs.
Payne [1904], 194 U.S., 106; Smith vs. Hitchcock [1912], 226 U.S., 63; Masses Pub.
Co. vs. Patten [1917], 246 Fed., 24. But see David vs. Brown [1900], 103 Fed., 909,
announcing a somewhat different doctrine and relied upon by the Attorney-General).
To be sure, legal scholars in the United States are still debating the proposition
whether or not courts alone are competent to decide whether speech is constitutionally
protected. The issue involves highly arguable policy considerations and can be better
[35]

addressed by our legislators.

IN VIEW WHEREOF, the Decision of the respondent Court of Appeals dated March
24, 1995 is affirmed insofar as it sustained the jurisdiction of the respondent MTRCB to
review petitioners TV program entitled Ang Iglesia ni Cristo, and is reversed and set
aside insofar as it sustained the action of the respondent MTRCB x-rating petitioners TV
Program Series Nos. 115, 119, and 121. No costs.
SO ORDERED.