SECOND DIVISION

G.R. No. 229826, July 30, 2018

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. PATRICIA CABRELLOS Y DELA CRUZ, Accused-

Appellant.

DECISION

PERLAS-BERNABE, J.:

Before the Court is an ordinary appeal1 filed by accused-appellant Patricia Cabrellos y Dela Cruz (Cabrellos)
assailing the Decision2 dated September 13, 2016 of the Court of Appeals (CA) in CA-G.R. CR H.C. No.
02020, which affirmed the Joint Judgment3 dated February 25, 2015 of the Regional Trial Court of Bais City,
Negros Oriental, Branch 45 (RTC) in Crim. Case Nos. 05-0163-A and 05-0162-A finding Cabrellos guilty
beyond reasonable doubt of the crimes of Illegal Sale of Dangerous Drugs and Illegal Possession of
Dangerous Drugs, defined and penalized under Sections 5 and 11, respectively, of Article II of Republic Act
No. (RA) 9165,4 otherwise known as the "Comprehensive Dangerous Drugs Act of 2002."

The Facts

This case stemmed from two (2) Informations5 filed before the RTC charging Cabrellos with violations of
Sections 5 and 11, Article II of RA 9165, the accusatory portions of which read:

Crim. Case No. 05-0163-A

That on September 22, 2005 at about 12:45 in the afternoon at Barangay Iniban, Ayungon, Negros Oriental,
Philippines, and within the jurisdiction of this Honorable Court, the above named accused, without lawful
authority, did then and there willfully, unlawfully and feloniously SELL and DELIVER to a poseur buyer
Methamphetamine Hydrochloride locally known as Shabu, weighing 0.08 gram, a dangerous drug.

Contrary to law.6

Crim. Case No. 05-0162-A

That on September 22, 2005 at 12:45 in the afternoon, more or less, at Barangay Iniban, Ayungon, Negros
Oriental, Philippines, and within the jurisdiction of this Honorable Court, the above named accused, did then
and there willfully, unlawfully and feloniously have in her possession, control and custody, 0.64 gram of
Methamphetamine Hydrochloride, locally known as Shabu, a dangerous drug, without lawful authority.

Contrary to law.7

The prosecution alleged that on September 22, 2005 and acting upon a tip from a confidential informant
regarding Cabrellos's alleged illegal drug activities in Ayungon, Negros Oriental, the Philippine Drug
Enforcement Agency and the Provincial Anti-Illegal Drugs Special Operations Group organized a buy-bust
team, with PO3 Allen June Germodo (PO3 Germodo) acting as poseur-buyer and PO2 Glenn Corsame (PO2
Corsame) as immediate back-up. The buy-bust team, together with the informant, then went to Cabrellos's
house. Thereat, the informant introduced PO3 Germodo as a shabu buyer. After PO3 Germodo gave
Cabrellos the two (2) marked P500.00 bills, Cabrellos took out two (2) plastic sachets containing
suspected shabu from her bag and handed it over to PO3 Germodo. Upon receipt of the sachets, PO3
Germodo placed Cabrellos under arrest, with the rest of the buy-bust team rushing to the scene. The police
officers searched Cabrellos's bag and discovered seventeen (17) more sachets containing
suspected shabu therein. The police officers then brought Cabrellos and the seized items to the Ayungon
Police Station for the conduct of photography and inventory of the seized items. However, since only a
barangay kagawad was present at the Ayungon Police Station at that time, the police officers brought
Cabrellos and the seized items to the Dumaguete Police Station wherein they conducted a second inventory,
this time in the presence of a representative each from the DOJ and the media. Thereafter, the seized
sachets were brought to the crime laboratory where the contents thereof were confirmed to be
methamphetamine hydrochloride or shabu.8

In her defense, Cabrellos testified that she was inside her house tending to her child when suddenly, two (2)
unidentified persons came into their house looking for her husband. When she told them that her husband
was not around, she was brought to the police station for selling shabu, and there, made to sign a document
already signed by a barangay official. She was detained for three (3) months at the Dumaguete Police
Station before she was transferred to Bais City Jail.9

The RTC Ruling

In a Joint Judgment10 dated February 25, 2015, the RTC convicted Cabrellos of the crimes charged, and
accordingly, sentenced her as follows: (a) in Criminal Case No. 05-0163-A, to suffer the penalty of life
imprisonment, and to pay a fine of P500,000.00; and (b) in Criminal Case No. 05-0162-A, to suffer the
penalty of imprisonment for an indeterminate period of twelve (12) years and one (1) day to fourteen (14)
years, and to pay a fine of P300,000.00.11

The RTC found that the prosecution was able to establish Cabrellos's guilt beyond reasonable doubt,
considering that: (a) she was caught in flagrante delicto selling shabu to the poseur-buyer; and (b) in the
search incidental to her arrest, she was discovered to be in possession of seventeen (17) more sachets
of shabu. On the other hand, it did not give credence to Cabrellos' bare denial as it stood weak in the face of
the detailed and candid testimonies of the prosecution's witnesses.12

Aggrieved, Cabrellos appealed13 to the CA.

The CA Ruling

In a Decision 14 dated September 13, 2016, the CA affirmed the RTC ruling.15 It held that the testimonies of
the police officers had established the fact that Cabrellos was caught in the act of selling illegal drugs, and
that in the course of her arrest, she was found in possession of more sachets containing illegal drugs. In this
regard, the CA ruled that the police officers substantially complied with the chain of custody requirement as
the identity and evidentiary value of the seized items were duly established and preserved. 16

Hence, this appeal.

The Issue Before the Court

The issue for the Court's resolution is whether or not Cabrellos is guilty beyond reasonable doubt of violating
Sections 5 and 11, Article II of RA 9165.

The Court's Ruling

The appeal is meritorious.

At the outset, it must be stressed that an appeal in criminal cases opens the entire case for review and,
thus, it is the duty of the reviewing tribunal to correct, cite, and appreciate errors in the appealed judgment
whether they are assigned or unassigned.17 "The appeal confers the appellate court full jurisdiction over the
case and renders such court competent to examine records, revise the judgment appealed from, increase
the penalty, and cite the proper provision of the penal law."18

In this case, Cabrellos was charged with Illegal Sale and Illegal Possession of Dangerous Drugs, respectively
defined and penalized under Sections 5 and 11, Article II of RA 9165. In order to properly secure the
conviction of an accused charged with Illegal Sale of Dangerous Drugs, the prosecution must prove: (a) the
identity of the buyer and the seller, the object, and the consideration; and (b) the delivery of the thing sold
and the payment.19 Meanwhile, in instances wherein an accused is charged with Illegal Possession of
Dangerous Drugs, the prosecution must establish the following elements to warrant his conviction: (a) the
accused was in possession of an item or object identified as a prohibited drug; (b) such possession was not
authorized by law; and (c) the accused freely and consciously possessed the said drug.20 In both instances,
case law instructs that it is essential that the identity of the prohibited drug be established with moral
certainty, considering that the dangerous drug itself forms an integral part of the corpus delicti of the crime.
Thus, in order to obviate any unnecessary doubt on the identity of the dangerous drugs, the prosecution has
to show an unbroken chain of custody over the same and account for each link in the chain of custody from
the moment the drugs are seized up to their presentation in court as evidence of the crime.21

Section 21, Article II of RA 9165 outlines the procedure which the police officers must follow when handling
the seized drugs in order to preserve their integrity and evidentiary value.22 Under the said section, prior to
its amendment by RA 10640,23 the apprehending team shall, among others, immediately after seizure
and confiscation conduct a physical inventory and photograph the seized items in the presence of
the accused or the person from whom the items were seized, or his 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 of the same, and the
seized drugs must be turned over to the PNP Crime Laboratory within twenty-four (24) hours from
confiscation for examination.24 In the case of People v. Mendoza,25 the Court stressed that "[w]ithout the
insulating presence of the representative from the media or the [DOJ], or any elected public
official during the seizure and marking of the [seized drugs], the evils of switching, 'planting' or
contamination of the evidence that had tainted the buy-busts conducted under the regime of [RA] 6425
(Dangerous Drugs Act of 1972) again reared their ugly heads as to negate the integrity and credibility
of the seizure and confiscation of the [said drugs] that were evidence herein of the corpus
delicti, and thus adversely affected the trustworthiness of the incrimination of the
accused. Indeed, the x x x presence of such witnesses would have preserved an unbroken chain of
custody."26

The Court, however, clarified that under varied field conditions, strict compliance with the requirements of
Section 21, Article II of RA 9165 may not always be possible.27 In fact, the Implementing Rules and
Regulations (IRR) of RA 9165 – which is now crystallized into statutory law with the passage of RA
1064028 – provide that the said inventory and photography may be conducted at the nearest police station
or office of the apprehending team in instances of warrantless seizure, and that non-compliance with the
requirements of Section 21, Article II of RA 9165 – under justifiable grounds – will not render
void and invalid the seizure and custody over the seized items so long as the integrity and
evidentiary value of the seized items are properly preserved by the apprehending officer or
team.29 In other words, the failure of the apprehending team to strictly comply with the procedure laid out
in Section 21, Article II of RA 9165 and its IRR does not ipso factorender the seizure and custody over the
items as void and invalid, provided that the prosecution satisfactorily proves that: (a) there is justifiable
ground for non-compliance; and (b) the integrity and evidentiary value of the seized items are properly
preserved.30 In People v. Almorfe,31the Court explained that for the above-saving clause to apply, the
prosecution must explain the reasons behind the procedural lapses, and that the integrity and
evidentiary value of the seized evidence had nonetheless been preserved.32 Also, in People v. De
Guzman,33 it was emphasized that the justifiable ground for non-compliance must be proven as a
fact, because the Court cannot presume what these grounds are or that they even exist.34

After a judicious study of the case, the Court finds that the police officers committed unjustified deviations
from the prescribed chain of custody rule, thereby putting into question the integrity and evidentiary value
of the dangerous drugs allegedly seized from Cabrellos.

Initially, it would appear that the arresting officers complied with the witness requirement during inventory,
as seen in the Receipt of Property Seized35 dated September 22, 2005 which contains the signatures of the
required witnesses, i.e., a public elected official, a representative from the DOJ, and a representative from
the media. However, no less than PO3Germodo admitted in open court that they actually conducted two (2)
separate inventories in different places and in the presence of different witnesses. Pertinent portions of his
direct testimony read:

[Pros. Yuseff Cesar Ybañez, Jr.]: After you were able to make the said marking, were you able to take
pictures with the accused inside her house?
[PO3 Germodo]: No, sir. We only took pictures during the inventory at the police station of Ayungon.

xxxx
Q: Mr. Witness, after you have prepared, and signed of the properties seized and gone with the markings of
the property seized, what did you do then, if any?
A: We conducted the inventory of the confiscated items together with the witness, the
[B]rgy. Kagawad Raul Fausto and he signed the inventory.

Q: And after Raul Fausto signed the inventory, what happened then, if any?
A: Since there was no report from the media [and] the Department of Justice, we proceeded to
Dumaguete City.

Q: Where did you proceed in Dumaguete City?

A: In our office.

Q: Where is your office located?

A: It is located at PNP compound, Locsin St., Dumaguete City.

Q: After you arrived there, what happened then?

A: I called the media representative and the DOJ.

Q: And did they arrive, the media representative and the DOJ representative?
A: Yes.

Q: After they arrived, what transpired at your office?

A: We conduct (sic) again an inventory.

Q: After conducting the second inventory, what did you do then, if any?
A: After the inventory we made a request for PNP crime laboratory.36
(Emphases and underscoring supplied)

From the foregoing testimony, it is clear that the arresting officers conducted two (2) separate inventories,
both of which are glaringly non compliant with the required witnesses rule: (a) in the inventory conducted at
the Ayungon Police Station, only a public elected official – Brgy. Kagawad Raul Fausto – was present
thereat; and (b) on the other hand, the inventory conducted at the Dumaguete Police Station was witnessed
only by representatives from the DOJ and the media. To make matters worse, the arresting officers
attempted to cover up such fact by preparing a single inventory sheet signed by the witnesses at different
times and places. Verily, the chain of custody rule laid down by RA 9165 and its IRR contemplates a
situation where the inventory conducted on the seized items is witnessed by the required personalities at
the same time. The wordings of the law leave no room for any piecemeal compliance with the required
witnesses rule as what happened in this case. Otherwise, the avowed purpose of the required witnesses rule
– which is to prevent the evils of switching, planting, or contamination of the corpus delicti resulting in the
tainting of its integrity and evidentiary value – will be greatly diminished or even completely negated.

At this point, it is well to note that the non-compliance with the required witnesses rule does not per se
render the confiscated items inadmissible.37 However, a justifiable reason for such failure or a showing of
any genuine and sufficient effort to secure the required witnesses under Section 21, Article II of RA
9165 must be adduced.38 In People v. Umipang,39 the Court held that the prosecution must show
that earnest efforts were employed in contacting the representatives enumerated under the law for "[a]
sheer statement that representatives were unavailable – without so much as an explanation on whether
serious attempts were employed to look for other representatives, given the circumstances – is to be
regarded as a flimsy excuse."40 Verily, mere statements of unavailability, absent actual serious attempts to
contact the required witnesses, are unacceptable as justified grounds for non-compliance.41 These
considerations arise from the fact that police officers are ordinarily given sufficient time – beginning from
the moment they have received the information about the activities of the accused until the time of his
arrest – to prepare for a buy-bust operation and consequently, make the necessary arrangements
beforehand knowing fully well that they would have to strictly comply with the set procedure prescribed in
Section 21, Article II of RA 9165. As such, police officers are compelled not only to state the reasons
for their non-compliance, but must in fact, also convince the Court that they exerted earnest
efforts to comply with the mandated procedure, and that under the given circumstance, their
actions were reasonable.42
To reiterate, PO3 Germodo admitted that they had to re-do the inventory at the Dumaguete Police Station
for it to be witnessed by the DOJ and media representatives. However, the re-conduct of the inventory at
the Dumaguete Police Station was no longer witnessed by the public elected official who was left behind at
the Ayungon Police Station. Unfortunately, no excuse was offered for such mishap; and worse, they even
tried to trivialize the matter by making the required witnesses sign a single inventory sheet despite the fact
that they witnessed the conduct of two (2) separate inventories. Thus, for failure of the prosecution to
provide justifiable grounds or show that special circumstances exist which would excuse their transgression,
the Court is constrained to conclude that the integrity and evidentiary value of the items purportedly seized
from Cabrellos have been compromised. It is settled that in a prosecution for the Illegal Sale and Illegal
Possession of Dangerous Drugs under RA 9165, the State carries the heavy burden of proving not only the
elements of the offense, but also to prove the integrity of the corpus delicti, failing in which, renders the
evidence for the State insufficient to prove the guilt of the accused beyond reasonable doubt.43 It is well-
settled that the procedure in Section 21, Article II of RA 9165 is a matter of substantive law, and cannot be
brushed aside as a simple procedural technicality; or worse, ignored as an impediment to the conviction of
illegal drug suspects.44 As such, since the prosecution failed to provide justifiable grounds for non-
compliance with the aforesaid provision, Cabrellos's acquittal is perforce in order.

As a final note, the Court finds it fitting to echo its recurring pronouncement in recent jurisprudence on the
subject matter:

The Court strongly supports the campaign of the government against drug addiction and commends the
efforts of our law enforcement officers against those who would inflict this malediction upon our people,
especially the susceptible youth. But as demanding as this campaign may be, it cannot be more so than the
compulsions of the Bill of Rights for the protection of liberty of every individual in the realm, including the
basest of criminals. The Constitution covers with the mantle of its protection the innocent and the guilty
alike against any manner of high-handedness from the authorities, however praiseworthy their intentions.

Those who are supposed to enforce the law are not justified in disregarding the right of the individual in the
name of order. Order is too high a price for the loss of liberty. x x x.45

"In this light, prosecutors are strongly reminded that they have the positive duty to prove compliance with
the procedure set forth in Section 21 [, Article II] of RA 9165, as amended. As such, they must have
the initiative to not only acknowledge but also justify any perceived deviations from the said
procedure during the proceedings before the trial court. Since compliance with the procedure is
determinative of the integrity and evidentiary value of the corpus delicti and ultimately, the fate of the
liberty of the accused, the fact that any issue regarding the same was not raised, or even threshed out in
the court/s below, would not preclude the appellate court, including this Court, from fully examining the
records of the case if only to ascertain whether the procedure had been completely complied with, and if
not, whether justifiable reasons exist to excuse any deviation. If no such reasons exist, then it is the
appellate court's bounden duty to acquit the accused, and perforce, overturn a conviction."46

WHEREFORE, the appeal is GRANTED. The Decision dated September 13, 2016 of the Court of Appeals in
CA-G.R. CR H.C. No. 02020 is hereby REVERSED and SET ASIDE. Accordingly, accused-appellant Patricia
Cabrellos y Dela Cruz is ACQUITTED of the crimes charged. The Director of the Bureau of Corrections is
ordered to cause her immediate release, unless she is being lawfully held in custody for any other reason.

SO ORDERED.

SECOND DIVISION

G.R. No. 228890, April 18, 2018

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. BASHER TOMAWIS Y ALI, Accused-Appellant.

DECISION

CAGUIOA, J.:
In our criminal justice system, the overriding consideration is not whether the court doubts the innocence of
the accused but whether it entertains a reasonable doubt as to his guilt.1
The role of the Court in the fight against the illegal drug menace is to ensure that the guilty is convicted and
that the appropriate penalty is imposed. In the discharge of this task, the Court must be mindful that the
rights of the individual must, at all times, be safeguarded. As Blackstone's ratio goes, it is better that 100
guilty persons should escape than that one innocent person should suffer.

The Facts

Before the Court is an appeal2 filed pursuant to Section 13(c), Rule 124 of the Revised Rules on Criminal
Procedure by accused-appellant Basher Tomawis y Ali (Tomawis) assailing the Decision3 dated June 6, 2016
of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 06662, which affirmed the Judgment4 dated January
29, 2014 of the Regional Trial Court (RTC), Branch 204, Muntinlupa City in Crim. Case No. 08-636, finding
him guilty beyond reasonable doubt of violating Section 5,5 Article II of Republic Act No. (RA)
9165,6 otherwise known as the "Comprehensive Dangerous Drugs Act of 2002."

The accusatory portion of the Information7 against Tomawis states:

That, on August 21, 2008 at around 6:30 P.M. at Alabang, Muntinlupa, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, without having been lawfully authorized, did
then and there willfully, unlawfully and feloniously sold, traded and delivered to a PDEA agent a
methamphetamine hydrochloride, otherwise known as "shabu", a dangerous drug, with a net weight of
12.74 grams as evidenced by Chemistry Report Number DD-153-08 in violation of the aforecited law.

CONTRARY TO LAW.8
Upon his arraignment, Tomawis pleaded not guilty.9 During the pretrial conference, the following facts were
stipulated upon: (1) the identity of the accused and jurisdiction of the RTC over his person; (2) the
qualification of the forensic chemist who conducted the drug test; (3) the sample examined by the forensic
chemist tested positive for methylamphetamine hydrochloride with a weight of 12.7402 grams; and (4) the
sample was delivered by Intelligence Officer 1 (IO1) Mabel Alejandro (IO1 Alejandro).10

Version of the Prosecution

The Prosecution presented as witnesses Philippine Drug Enforcement Agency (PDEA) agents IO1 Alejandro,
IO1 Beltran Lacap, Jr. (IO1 Lacap), and two Barangay councilors of Brgy. Pinyahan, Quezon City, Jonathan
B. Burce (Burce) and Melinda S. Gaffud (Gaffud). Their testimonies, as summarized by the CA, are as
follows:
Alejandro testified that a walk-in confidential informant appeared in their office and reported that a certain
alias Salim was engaged in illegal drug activities and operated in Muntinlupa, Alabang. She called her team
leader and an anti-buy (sic) bust operation was coordinated. On August 21, 2008, their team leader
conducted a briefing on the buy-bust operation. Alejandro was assigned as the poseur buyer and was given
two genuine five hundred peso bills which she marked with her initials MCA as buy bust money. The two five
hundred peso bills were placed on top of boodle money, folded and tied together and placed in a white
envelope.

Thereafter, they went to Metropolis [Starmall], Alabang to meet with alias Salim. The confidential informant
introduced Alejandro to alias Salim and she told him that she wanted to buy shabu. Alias Salim, who was
later identified as Tomawis, said that he wanted to see the money first so she showed him the money. He
told her that he will get the shabu somewhere and will meet her in the food court. After ten to fifteen
minutes, Tomawis returned and they simultaneously exchanged the money for the shabu. After getting the
shabu, Alejandro removed her jacket which was their pre-arranged signal. Immediate back up came to
arrest Tomawis.

A commotion occurred during the arrest because bystanders inside the food court wanted to help Tomawis
who shouted "Tulungan niyo ako papatayin nila ako." They were not able to put markings on the evidence in
the vicinity because of the commotion. After Tomawis was arrested, he was read of (sic) his constitutional
rights and brought together with the evidence to Brgy. Pinyahan, Quezon City.

Upon reaching Brgy. Pinyahan, they immediately conducted the inventory which was done before the
barangay officials of the said barangay. Alejandro handed the seized item to Alfonso Romano who was the
inventory officer, but she was present during the inventory process.
Lacap corroborated the testimony of Alejandro. x x x

[Burce] testified that he was a kagawad of Brgy. Pinyahan, Quezon City and that he was called to be present
during the inventory of evidence acquired from a buy bust operation. When he reached the office, the
confiscated items were placed on top of the table. They asked Tomawis if the items were recovered from
him, to which he assented to. The same was corroborated by Gaffud.11
Version of the Defense

The defense's version of events, as summarized by the CA, is as follows:

For the defense, Tomawis testified that he was with his mother in Starmall-Alabang when they were
accosted by two men. One of them wrung his neck and he could not breathe. His mother tried to help him
but was unable to do so. When he was trying to get away from the man holding him, the other man
punched his stomach and grabbed his cellular phone. A seller in Starmall-Alabang, who knew him, tried to
help him but was unable to do so because the two men brought out their guns. He was brought out to the
parking lot and into a vehicle where his hands were handcuffed and his wallet containing P13,500.00 was
taken.

There were six men in the vehicle, none of which he knew. The van stopped in front of the mall, and a man
peeped inside and said "bro, hindi yan iyong subject." One of them inside the van laughed and replied "pare-
parehas lang ang mga muslim." They stopped by a toll gate where two policemen carrying guns arrived. One
of them said "pare, ibaba mo na muna yan kausapin mo." The men got out and talked for a few minutes and
when they returned, said, "pare, panindigan na lang natin na yan iyong subject."

Tomawis was told that in exchange of his money, he will be released. When he asked what his violation was,
they answered that it was because he resisted.

He later found out that he was brought to the Philippine Drug Enforcement Agency (PDEA) Office where he
was again punched in the stomach. He was told to call his relatives so he called his mother. He was brought
to Brgy. Pinyahan where he was ordered to point to the money and something wrapped in plastic. He did not
complain about the illegal arrest and taking of his wallet to the barangay officials because he was afraid. He
was photographed and then brought back to the PDEA Office.

In the PDEA Office, his wife and mother told him that he will be charged with an illegal drug related case. He
denied the allegations and said that he was being falsely charged because the PDEA officers knew he was
selling cellular phones inside the mall. He cannot think of any other motive why the PDEA officers would file
a case against him. His urine was tested and yielded a negative result. Tomawis's mother corroborated his
testimony.12
The Ruling of the RTC

On January 29, 2014, the RTC, Branch 204, Muntinlupa City, renderedjudgment13 convicting Tomawis of
violation of Section 5 of RA 9165 and sentencing him to life imprisonment and to pay a fine of P500,000.00.

The trial court gave full credence to the testimony of the prosecution witnesses on the reason that they
enjoyed the presumption of regularity in the performance of their official functions. The RTC also held that
the prosecution was able to preserve the integrity of the seized drugs. The RTC further ruled that the
conduct of the inventory and photographing was justifiably done in a different place because of the
commotion that ensued in the place of arrest. The defense proffered by Tomawis being a mere denial,
cannot prevail over the positive assertions of the arresting officers.14

The Ruling of the CA

Undaunted, Tomawis elevated the case to the CA.15 He argued that the prosecution failed to prove the
identity and integrity of the alleged seized drugs due to the following irregularities in the conduct of the buy
bust operation: (1) failure to present the testimony ofl01 Romano Alfonso (IO1 Alfonso), who received
the shabu from IO1 Alejandro; (2) failure to immediately mark the shabu at the time of seizure and initial
custody; and (3) the conduct of the inventory and marking at the barangay hall of Brgy. Pinyahan, Quezon
City.16

The CA affirmed the judgment of the RTC in toto.17

The appellate court held that the prosecution was able to prove all the elements of the crime of sale of
illegal drugs as punished under Section 5, RA 9165. The CA held that IO1 Alejandro's testimony, which was
corroborated by IO1 Lacap and supported by documentary evidence, rendered a clear and complete
narration of the details of the buy-bust operation. The CA also held that the chain of custody was sufficiently
established. Absent any showing of ill-motive or bad faith on the part of the buy-bust team, the presumption
of regularity in the performance of official functions prevails.18

Thus, Tomawis filed his Notice of Appeal19 of the CA Decision on June 28, 2016.

Issue

Whether or not Tomawis' guilt for violation of Section 5 of RA 9165 was proven beyond reasonable doubt.

The Court's Ruling

The appeal is meritorious.

After a review of the records, the Court resolves to acquit Tomawis as the prosecution utterly failed to prove
that the buy-bust team complied with the mandatory requirements of Section 21 of RA 9165 and for their
failure to establish the chain of custody of the seized drugs.

For a successful prosecution for the crime of illegal sale of drugs under Section 5 of RA 9165, the following
must be proven: (a) the identities of the buyer, seller, object, and consideration; and (b) the delivery of the
thing sold and the payment for it.20 In cases involving dangerous drugs, the drug itself constitutes
the corpus delicti of the offense.21 Thus, it is of paramount importance that the prosecution prove that the
identity and integrity of the seized drugs are preserved. Each link in the chain of custody of the seized drugs
must be established.

The requirements of paragraph 1, Section 21, Article II of RA 9165

Section 21, Article II of RA 9165 outlines the procedure to be followed by a buy-bust team in the seizure,
initial custody, and handling of confiscated illegal drugs and/or paraphernalia. RA 9165 was amended by RA
1064022 which imposed less stringent requirements in the procedure. The amendment was approved on July
15, 2014. As the alleged crime in this case was committed on August 21, 2008, the original version of
Section 21 is applicable:
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[.]
Section 21(a), Article II of the Implementing Rules and Regulations of RA 9165 (IRR) filled in the details as
to place of inventory and added a saving clause in case of non-compliance with the requirements under
justifiable grounds, thus:
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 personls 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)
Parsed, the above provisions impose the following requirements in the manner of handling and inventory,
time, witnesses, and of place after the arrest of the accused and seizure of the dangerous drugs:

1. The initial custody requirements must be done immediately after seizure or confiscation;

2. The physical inventory and photographing must be done in the presence of:

a. the accused or his representative or counsel;

b. a representative from the media;
c. a representative from the DOJ; and
d. any elected public official.

3. The conduct of the physical inventory and photograph shall be done at the:

a. place where the search warrant is served; or

b. at the nearest police station; or
c. nearest office of the apprehending officer/team, whichever is practicable, in case of
warrantless seizure.

All the above requirements must be complied with for a successful prosecution for the crime of illegal sale of
drugs under Section 5 of RA 9165. Any deviation in the mandatory procedure must be satisfactorily justified
by the buy-bust team. Under Section 21 of the IRR, the Court may allow deviation from the procedure only
where the following requisites are present: (1) the existence of justifiable grounds to allow departure from
the rule on strict compliance; and (2) the integrity and the evidentiary value of the seized items are properly
preserved by the apprehending team. If these two elements are present, the seizures and custody over the
confiscated items shall not be rendered void and invalid.23

Jurisprudence states that the procedure enshrined in Section 21, Article II of RA 9165 is a matter of
substantive law, and cannot be brushed aside as a simple procedural technicality; or worse, ignored as an
impediment to the conviction of illegal drug suspects.24 For indeed, however noble the purpose or necessary
the exigencies of the campaign against illegal drugs may be, it is still a governmental action that must
always be executed within the boundaries oflaw.25

In this case, the buy-bust team committed several and patent procedural lapses in the conduct of the
seizure, initial custody, and handling of the seized drug - which thus created reasonable doubt as to the
identity and integrity of the drugs and, consequently, reasonable doubt as to the guilt of the accused.

The buy-bust team failed to comply with the three-witness rule

Section 21 plainly requires the apprehending team to conduct a physical inventory of the seized items and
the photographing of the same immediately after seizure and confiscation. In addition, the inventory
must be done in the presence of the accused, his counsel, or representative, a representative of
the DOJ, the media, and an elected public official, who shall be required to sign the copies of the
inventory and be given a copy thereof.

The phrase "immediately after seizure and confiscation" means that the physical inventory and
photographing of the drugs were intended by the law to be made immediately after, or at the place of
apprehension. And only if this is not practicable, the IRR allows that the inventory and photographing could
be done as soon as the buy-bust team reaches the nearest police station or the nearest office of the
apprehending officer/team. By the same token, however, this also means that the three required witnesses
should already be physically present at the time of apprehension-a requirement that can easily be complied
with by the buy-bust team considering that the buy-bust operation is, by its nature, a planned activity.
Simply put, the buy-bust team has enough time and opportunity to bring with them said witnesses.

The buy-bust team in this case utterly failed to comply with these requirements. To start, the conduct of the
inventory in this case was not conducted immediately at the place of arrest but at the barangay hall of
Pinyahan, Quezon City. As explained by the buy-bust team of the PDEA, IO1 Alejandro and IO1 Lacap, they
could not conduct the inventory at Starmall, Alabang, because a commotion ensued as bystanders in the
food court tried to assist Tomawis who shouted for help. Evidently, this happened because the buy-bust
operation was conducted in a shopping mall.

While the IRR allows alternative places for the conduct of the inventory and photographing of the seized
drugs, the requirement of having the three required witnesses to be physically present at the time or near
the place of apprehension, is not dispensed with. The reason is simple, it is at the time of arrest - or at the
time of the drugs' "seizure and confiscation" - that the presence of the three witnesses is most needed, as it
is their presence at the time of seizure and confiscation that would insulate against the police practice of
planting evidence.

There are police stations closer to Starmall, Alabang, in Muntinlupa City and the office of the PDEA is also in
Pinyahan, Quezon City. And yet, the inventory was conducted in the barangay hall of Pinyahan, Quezon City
- which is not one of the allowed alternative places provided under Section 21 of the IRR.

More importantly, there was no compliance with the three-witness rule. There were no witnesses from the
DOJ or the media. Only two witnesses who were elected barangay officials were present. It thus becomes
evident that the buy-bust team did not prepare or bring with them any of the required witnesses at or near
the place of the buy-bust operation and the witnesses were a mere afterthought. Based on the testimonies
of barangay councilors Burce and Gaffud, they were not present during the seizure of the drugs. They were
only called to go to the barangay hall of Pinyahan, Quezon City - after the arrest and seizure that had been
done in Starmall, Alabang - to "witness" the inventory made by the PDEA at the barangay hall.

Barangay councilor Burce testified:

[Cross-examination of barangay councilor Burce by Atty. Jaime

Felicen (Atty. Felicen), counsel for Tomawis]

[Clarificatory questions by the Court:]

[Q] Will you please tell us how you came to sign the Certificate of
- Inventory?
A- Your Honor, I just like to inform you that I was not part in
the Operation of PDEA but according to the Book of PDEA any
Government or Local Officials that they have a responsibility
to sign as witness in the Inventory.

[Q] How were you called by PDEA to sign the inventory?

-

A- I was at the Basketball Court your Honor, when they called me.

[Q] What did they inform you?

-

A- That they conducted a buy-bust operation your honor and

they presented to us the evidence they recovered and the
person who were arrested.

[Q] Who were present during the Inventory of the drug evidence, aside
- from you?

A- Kagawad Minda Gaffud, your Honor.

[Q] Who else?

-

A- The PDEA, your Honor.

xxxx
[Q] How about the accused was he present during the Inventory?
-

A- Yes, your Honor.

xxxx

ATTY. FELICEN:

[Q] Who was in possession of the items brought to the Brgy. when it
- was Inventoried?

A- When I reached the office, the confiscated items were

already placed on the top of the table and then the items
were presented there and then we even asked the accused if
the items were recovered from him, sir.

xxxx

[Q] So, what you did is you just affixed your signature in this Certificate
- of Inventory without knowing where the items came from?

A- I was informed by the PDEA Operatives sir, that the items were
recovered from a buy-bust operation conducted at the Metropolis.

Q- Aside from the information from the PDEA you have no other
personal knowledge?
 A- Yes, sir.

Q- You even do not know who was the person who put those items on
top of the table?

A- No, sir.26 (Emphasis supplied)

Barangay councilor Gaffud testified similarly:

[Cross-examination of barangay councilor Gaffud by Atty. Felicen]

Q Who in particular told you to witness the Inventory?

-

A I was called by one of the Brgy. Tanod and I was informed that
- the PDEA Operatives arrived at the office sir, and they need
one Brgy. Official to witness the Inventory, sir.

Q So, when you were about to witness the inventory, you just saw the
- items to be inventory (sic) at that time on top of the table also?

A The items were not yet at the table, when I arrived, they got the
- items from one of the PDEA Operatives, sir.

Q From where did that member of the PDEA got (sic) the items?
-

A They were holding a plastic sir, and they brought out the content of
- the plastic sir, and they place it on top of the table, sir.27 (Emphasis
supplied)
From the above testimonies, it can be gleaned that barangay councilors Burce and Gaffud were not present
near to or at the place of arrest. They were merely called to witness the inventory at the Pinyahan barangay
hall and then the drugs were shown to them by the PDEA agents. They did not even have prior knowledge of
the buy-bust operation.

The presence of the witnesses from the DOJ, media, and from public elective office is necessary to protect
against the possibility of planting, contamination, or loss of the seized drug. Using the language of the Court
in People v. Mendoza,28 without the insulating presence of the representative from the media or the DOJ
and any elected public official during the seizure and marking of the drugs, the evils of switching, "planting"
or contamination of the evidence that had tainted the buy-busts conducted under the regime of RA 6425
(Dangerous Drugs Act of 1972) again reared their ugly heads as to negate the integrity and credibility of the
seizure and confiscation of the subject sachet that was evidence of the corpus delicti, and thus adversely
affected the trustworthiness of the incrimination of the accused.29

The presence of the three witnesses must be secured not only during the inventory but more importantly at
the time of the warrantless arrest.

It is at this point in which the presence of the three witnesses is most needed, as it is their presence at the
time of seizure and confiscation that would belie any doubt as to the source, identity, and integrity of the
seized drug. If the buy-bust operation is legitimately conducted, the presence of the insulating witnesses
would also controvert the usual defense of frameup as the witnesses would be able to testify that the buy-
bust operation and inventory of the seized drugs were done in their presence in accordance with Section 21
of RA 9165.

The practice of police operatives of not bringing to the intended place of arrest the three witnesses, when
they could easily do so - and "calling them in" to the place of inventory to witness the inventory and
photographing of the drugs only after the buy-bust operation has already been finished - does not achieve
the purpose of the law in having these witnesses prevent or insulate against the planting of drugs.

To restate, the presence of the three witnesses at the time of seizure and confiscation of the drugs must be
secured and complied with at the time of the warrantless arrest; such that they are required to be at or near
the intended place of the arrest so that they can be ready to witness the inventory and photographing of the
seized and confiscated drugs "immediately after seizure and confiscation."

The prosecution failed to establish the chain of custody of the seized drugs.

As stated earlier, there is a saving clause in Section 21 of the IRR, which is the provision that states: "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 and custody over said items."30

In People v. Alviz,31 the Court held that the integrity and evidentiary value of seized items are properly
preserved for as long as the chain of custody of the same is duly established.

Chain of custody is defined in Section 1(b) of Dangerous Drugs Board Regulation No. 1, Series of 2002:

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 use in court as evidence, and the final disposition[.]
(Emphasis supplied)
In the present case, there are gaps in the chain of custody of the seized drugs which creates reasonable
doubt as to the identity and integrity thereof.
There are glaring inconsistencies in the testimonies of the buy-bust team. It is unclear as to who actually
recovered the seized drugs from Tomawis and who held custody of the drugs from the place of the arrest in
transit to Brgy. Pinyahan. There is also no testimony as to who held the drugs from the time of inventory at
Brgy. Pinyahan to the PDEA office; from the PDEA office until it was delivered to the laboratory; and until its
presentation in court as evidence of the corpus delicti.

The poseur-buyer, IO1 Alejandro, testified as follows:

[Direct examination of IO1 Alejandro by Fiscal Romeo B. Senson

(Fiscal Senson)]

Q: And after the accused went back after ten minutes, what
happened next?

A: He asked me the money again and then I said, where is the

shabu? When he showed me the shabuI gave him the money
and he gave me the shabu.

Q: And after that he gave you the shabu what happened next?

A: I already gave my pre-arranged signal, your Honor.

Q: And after you gave the pre-arranged signal, what happened next, Ms.
Witness?

A: My immediate back-up came to arrest Mr. Basher Tomawis, sir.

Q: And who is this back-up, Ms. Witness?

A: IO1 Beltran Lacap, Jr.

Q: And after the accused was arrested, what happened next?

A: We stated his constitutional rights, you Honor.

Q: And after the accused was apprehended, what did you do next,
Ms. Witness?

A: We were not able to put markings on the evidence in the

vicinity, your Honor, because of the commotion happened
when we arrested the accused Mr. Basher Tomawis, your
Honor.

Q: What commotion happened, Ms. Witness?

A: The bystanders inside the food court, your Honor, inside the mall,
wanted to help Mr. Basher Tomawis.

Q: And what did you do if any?

A: Our Team Leader immediately ordered us to vacate the area, your

Honor, so that we can avoid any incident that may happen inside the
mall, sir.

xxxx

Q: And after that, what happened next?

A: We brought the said evidence to Brgy. Pinyahan, your Honor,

to properly make the inventory of the seized evidence, your
Honor.
Q: And where is this Brgy. Pinyahan?

A: At the V. Luna, Quezon City, your Honor.

Q: And was this inventory reduced into writing?

A: Yes, in the case folder, your Honor.

xxxx

Q: Ms. Witness in this inventory you made mention of plastic

containing crystalline substance suspected to be shabu. What
happened to this item, Ms. Witness?

A: We brought it to the PDEA Laboratory, sir.

Q: And who brought this item to the laboratory, Ms. Witness?

A: I was the one who brought this, sir.

xxxx

Q: If I will show you the item that you brought to the laboratory for
examination, would you be able to identify it, Ms. Witness?
 A: Yes, sir.

Q: Will you please tell us what identifying marks did you put it if
any?

A: My initial, your Honor, the initial MCA and the initial of Beltran
Lacap, Jr., BTL.

xxxx

Q: Will you please explain to us, Ms. Witness, why did you not affix your
own signature in the inventory marked as Exhibit "F"?

A: The reason why, your Honor, because I was the poseur buyer and my
colleague was assigned as Inventory Officer. He is the
Inventory Officer in our office, your Honor. All the seized items
for inventory after brought to the barangay and before
bringing the said items to the PDEA Laboratory, IO1 Romano
Alfonso was the one who kept them your Honor.32 (Emphasis
and underscoring supplied)
IO1 Alejandro testified that she received the drugs from Tomawis and that she submitted the same to the
laboratory for testing. The inventory was conducted by the assigned Inventory Officer, IO1 Alfonso.
However, there is no testimony as to the movement of the drugs from IO1 Alejandro to IO1 Alfonso, and
supposedly back again from IO1 Alfonso to IO1 Alejandro for the submission of the seized drugs to the
crime laboratory.

Meanwhile, IO1 Lacap, also claimed to have received the seized drugs from Tomawis. He also contradicted
IO1 Alejandro's testimony as he said that IO1 Alfonso was the one who had custody of the drugs prior to the
delivery to the crime laboratory.

IO1 Lacap, testified as follows:

[Direct examination of IO1 Lacap by Fiscal Senson]

Q: What was recovered from the accused if any?

A: A maroon pouch, sir, with folka (sic) dots and inside is a
suspected shabu placed in a knot tied plastic sachet, sir.

Q: And who recovered this pouch, Mr. Witness?

A: I was, sir.

Q: If will be shown to you again this pouch, can you identify it?

A: Yes, sir.

Q: And from whom did you recover this pouch?

A: The pouch belonged to Alejandro, sir.

Q: The pouch was recovered by Agent Alejandro. What did you

recover if any, Mr. Witness?

A: The buy bust money placed in a white envelope, sir.

xxxx

Q: How come you did not have time to make the inventory in the area?

A: At that time, sir, the vendors around who knew the accused tried to
help the accused, sir. There was a little scuffle, sir.
xxxx

Q: Where did you go Mr. Witness?

A: To the National Headquarters, PDEA, sir.

Q: When arrived (sic) thereat, what happened next?

A: Before that we went to barangay in Quezon City for the

purpose of inventory of evidence.

Q: And what happened at the barangay office?

A: Kagawad Gaffud and Kagawad Burce witnessed the inventory,

sir.33(Emphasis supplied)

xxxx

[Cross-examination of IO1 Lacap by Atty. Felicen]

Q: And so it was Alejandro who was in the possession of the item

shabu allegedly recovered from the accused at the Metropolis
to Brgy[.] Pinyahan?

A: Yes, sir.
Q: And surprisingly, however, the officer who conducted the
inventory was IO1 Romano?

A: Yes, sir.

Q: IO1 Romano was not part of the actual operation inside the
Metropolis?

A: No, sir.

Q: Was he inside the [M]etropolis?

A: He is also a member of the support team.

Q: Was he inside?

A: Yes, sir.

Q: Meaning, that IO1 Alejandro turn-over (sic) the item to IO1

Romano?

A: No, sir, until we brought it to the crime laboratory for

examination.
 Q: So despite that Mabel Alejandro was the one who personally allegedly
recovered the item from the suspect she did not sign the inventory
including you and IO1 Romano?

A: Yes, sir. We signed as witness, sir, but Agent Romano Alfonso was
designated as Inventory Officer.

Q: Are you sure that he signed the inventory or you are not sure?

A: That is what I know.

Q: The truth is that you did not witness the signing of the
inventory, is that correct?

A: Only Agent Romano, sir.34 (Emphasis and underscoring supplied)

Thus, based on the above testimonies, only the following circumstances were established: the drugs were
seized from Tomawis at Starman, Alabang; the inventory and photographing were not conducted there
because a commotion ensued when Tomawis was arrested; the buy bust team brought Tomawis to the
barangay hall of Brgy. Pinyahan; the inventory was conducted by the designated Inventory Officer, IO1
Alfonso; barangay councilors Burce and Gaffud were present at the barangay hall; after the inventory, the
buy-bust team, together with Tomawis, proceeded to the PDEA office; IO1 Alejandro delivered the seized
drugs to the laboratory for testing.

There are lacking information and glaring inconsistencies in the statements of IO1 Alejandro and IO1 Lacap.
IO1 Alejandro testified that only she handled the seized drug. However, IO1 Lacap mentioned that he also
recovered the seized drug from IO1 Alejandro. IO1 Alejandro testified that she handed the seized drug to
IO1 Alfonso for inventory and he was the one who kept the seized drug since it was brought to the barangay
hall and before bringing it to PDEA laboratory; but IO1 Lacap also testified that IO1 Alejandro was the one
who kept the drugs until they were delivered to the laboratory.

There are unexplained gaps in the custody of the seized drugs. The transfer and movement of the seized
drugs between IO1 Alejandro, IO1 Lacap, and IO1 Alfonso was not established. It is unclear as to who held
custody of the seized drugs from the place of arrest in Starman, Alabang to Brgy. Pinyahan, Quezon City
and from Brgy. Pinyahan, Quezon City to the PDEA office. It was not clarified as to how and when the seized
drugs were returned to IO1 Alejandro after the inventory was conducted by IO1 Alfonso. There was also no
testimony as to who received the seized drugs from IO1 Alejandro at the laboratory, and to whom they were
given after the testing was conducted.

During pre-trial, the delivery by IO1 Alejandro to the laboratory was stipulated upon. However, there was no
evidence presented as to who at the laboratory received the seized drugs from IO1 Alejandro and as to who
held custody thereof after the examination was conducted.

Thus, the prosecution was unable to establish the unbroken chain of custody. The uncertainties and
inconsistencies in the testimony of the buy bust team and lack of information at specific stages of the
seizure, custody, and examination of the seized drugs creates doubt as to the identity and integrity thereof.
Each link in the chain of custody must be proved by the prosecution and cannot be conveniently explained
by the invocation of presumption of regularity.

The importance of establishing the chain of custody in drugs cases was explained in Mallillin v. People35:
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.36
As the drug itself is the corpus delicti in drugs cases, it is of utmost importance that there be no doubt or
uncertainty as to its identity and integrity.

Other breaches of procedure in the handling, marking, and photographing of the seized drugs

The buy-bust team also failed to take photographs of the seized drugs. The only photo, submitted as Exhibit
"O" for the prosecution, was a black and white photocopy of pictures of Tomawis and barangay councilors
Burce and Gaffud at the barangay hall. The law requires photographs of the seized drug itself and
not of the accused and the witnesses.

It was also not established where the marking was done by IO1 Alejandro. She only mentioned that they
were not able to mark the seized drugs at the place of arrest due to the commotion caused thereat. This is
excusable due to the occurrence of the commotion. However, it is not clear if the marking was done at the
barangay hall of Pinyahan, Quezon City or at the PDEA office. Neither was it specified if the marking was
done in the presence of the accused and the witnesses.

Inconsistency in description of seized drugs

Notably, the Inventory of Seized Evidence37 prepared by IO1 Alfonso merely describes the seized drugs as
"1 knot tied plastic containing crystalline substance suspected to be 'shabu'," without reference to any
markings made thereon. The weight of the seized drug is also not specified.

In addition, there is no mention of a maroon pouch,38 which is inconsistent with the testimony of IO1
Alejandro and Lacap who had testified that the seized drugs were inside a pouch. The maroon pouch is
mentioned again only in the Memorandum39 from the PDEA referring the seized drugs for testing and in the
Chemistry Report.40 There is also no testimony from any of the witnesses, barangay councilors Burce and
Gaffud, as to the condition of the seized drugs during the inventory at the barangay hall. Gaffud testified
that the buy-bust team was holding a plastic bag without mention of a maroon pouch or any markings
thereon.

At the risk of repetition, the seized drug is the corpus delicti of the crime itself. Thus, it is crucial for the
prosecution to prove the identity and integrity of the seized drugs. The apprehending officers must account
for each and every item that was seized from the accused. The process of the inventory, marking, and
photograph of the seized drugs imposes another layer of protection to ensure that the substance seized from
the accused is the same one that is presented and submitted in evidence. The failure of the apprehending
team to comply with these requirements greatly diminished the evidentiary value of the seized drugs.

The presumption of innocence of the accused vis-a-vis the presumption of regularity in performance of
official duties

The right of the accused to be presumed innocent until proven guilty is a constitutionally protected
right.41 The burden lies with the prosecution to prove his guilt beyond reasonable doubt by establishing each
and every element of the crime charged.42

On the other hand, public officers generally enjoy the presumption of regularity in the performance of official
functions. This is a disputable presumption provided under Section 3(m)43 of Rule 131 of the Rules of Court.
The presumption of regularity in the performance of duties can be overturned only if evidence is presented
to prove that the public officers were not properly performing their duty or they were inspired by improper
motive. In this case, both the RTC and CA used the presumption of regularity in giving full faith and
credence to the testimonies of the buy-bust team and to justify the deviation from the procedure.

However, in drugs cases, more stringent standards must be used for the presumption of regularity to
apply. The presumption should arise only when there is a showing that the apprehending
officer/buy-bust team followed the requirements of Section 21, or when the saving clause may
be properly applied. Gaps in the chain of custody cannot be filled in by the mere invocation of the
presumption of regularity.

Judicial reliance on the presumption of regularity in the performance of official duty despite the lapses in the
procedures undertaken by the agents of the law is fundamentally unsound because the lapses themselves
are affirmative proofs of irregularity.44 In People v. Enriquez,45 the Court held:
x x x [A]ny divergence from the prescribed procedure must be justified and should not affect the integrity
and evidentiary value of the confiscated contraband. Absent any of the said conditions, the noncompliance
is an irregularity, a red flag, that casts reasonable doubt on the identity of the corpus delicti.46 (Emphasis
supplied)
This means that even in the event that the presumption of regularity may stand, it will not be stronger than
the presumption of innocence in favor of the accused.47 Otherwise, a mere rule of evidence will defeat the
constitutionally enshrined right to be presumed innocent.48 Trial courts have been directed by the Court to
apply this differentiation.49

In this case, the presumption of regularity cannot be applied due to the glaring disregard of the established
procedure under Section 21 of RA 9165 and its IRR, committed by the buy-bust team.

All told, the prosecution failed to prove the corpus delicti of the offense of sale of illegal drugs due to the
multiple unexplained breaches of procedure committed by the buy-bust team in the seizure, custody, and
handling of the seized drug. Thus, the prosecution was not able to overcome the presumption of innocence
ofTomawis.

As a final note, the Court reiterates the reminder it has given in recent jurisprudence on the subject matter:
The Court strongly supports the campaign of the government against drug addiction and commends the
efforts of our law enforcement officers against those who would inflict this malediction upon our people,
especially the susceptible youth. But as demanding as this campaign may be, it cannot be more so than the
compulsions of the Bill of Rights for the protection of liberty of every individual in the realm, including the
basest of criminals. The Constitution covers with the mantle of its protection that innocent and the guilty
alike against any manner of high-handedness from the authorities, however praiseworthy their intentions.

Those who are supposed to enforce the law are not justified in disregarding the rights of the individual in the
name of order. [For indeed,] [o]rder is too high a price for the loss of liberty. x x x50
In the same vein, the Court likewise reiterates:
In this light, prosecutors are strongly reminded that they have the positive duty to prove compliance with
the procedure set forth in Section 21 of RA 9165, as amended. As such, they must have the initiative to
not only acknowledge but also justify any perceived deviations from the said procedure during
the proceedings before the trial court. Since compliance with this procedure is determinative of the
integrity and evidentiary value of the corpus delicti and ultimately, the fate of the liberty of the accused, the
fact that any issue regarding the same was not raised, or even threshed out in the court/s below, would not
preclude the appellate court, including this Court, from fully examining the record/s of the case if only to
ascertain whether the procedure had been completely complied with, and if not, whether justifiable reasons
exist to excuse any deviation. If no such reasons exist, then it is the appellate court's bounden duty to
acquit the accused, and perforce, overturn a conviction.51
WHEREFORE, premises considered, the Decision dated June 6, 2016 of the Court of Appeals in CA-G.R. CR-
H.C. No. 06662 is REVERSED and SET ASIDE. Accused-appellant Basher Tomawis y Ali 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 to 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 (5) days from receipt of this Decision, the action he has taken. A copy shall also be furnished to
the Director General of Philippine National Police for his information.

SO ORDERED.
G.R. No. 210610

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee

vs.
MARILOU HILARIO y DIANA and LALINE GUADAYO y ROYO, Accused

DECISION

LEONARDO-DE CASTRO, J.:

This is an appeal filed by accused-appellant Marilou D. Hilario (Hilario) of the Decision1 dated July
18, 2013 of the Court of Appeals in CA-G.R. CR-H.C. No. 05244, affirming with modification the
Decision2 dated August 23, 2011 of the Regional Trial Court (RTC) of Lemery, Batangas, Branch 5 in
Criminal (Crim.) Case Nos. 10-2008, 11-2008, and 13-2008. In its assailed Decision, the appellate
court found Hilario guilty of illegal sale of dangerous drugs, in violation of Article II, Section 5 of
Republic Act No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002; but
acquitted Hilario and her co-accused Lalaine R. Guadayo (Guadayo) of illegal possession of
dangerous drugs, penalized under Article II, Section 11 of Republic Act No. 9165. The RTC had
previously convicted Hilario and Guadayo of all charges against them.

On January 25, 2008, three Informations were filed before the RTC against Hilario and Guadayo, to
wit:

Docket No. Accused Charge

Crim. Case No. 10-2008
Crim. Case No. 11-2008
Crim. Case No. 13-2008
Illegal Sale of Dangerous
Hilario Drugs (Article II, Section 5 of
R.A. No. 9165)
Illegal Possession of
Hilario Dangerous Drugs (Article II,
Section 11 of R.A. No. 9165)
Illegal Possession of
Guadayo Dangerous Drugs (Article II,
Section 11 of R.A. No. 9165)

The Information in Crim. Case No. 10-2008 accused Hilario of illegal sale of dangerous drugs,
allegedly committed as follows:

That on or about the 22nd day of January, 2008, at about 11 :00 o'clock in the evening, at Barangay
Maguihan, Municipality of Lemery, Province of Batangas, Philippines and within the jurisdiction of
this Honorable Court, the above-named accused, without authority of law, did then and there willfully
and unlawfully sell, deliver and give away one (1) small heat-sealed transparent plastic sachet
containing methamphetamine hydrochloride commonly known as "shabu", weighing 0.04 gram,
referred to as specimen A (NBS-1) in Chemistry Report No. BD-012-08, a dangerous drug.3

Hilario was also charged with illegal possession of dangerous drugs under the Information in Crim.
Case No. 11-2008, thus:
That on or about the 22nd day of January, 2008, at about 11:00 o'clock in the evening, at Barangay
Maguihan, Municipality of Lemery, Province of Batangas, Philippines and within the jurisdiction of
this Honorable Court, the above-named accused, without authority of law, did then and there willfully
and unlawfully have in her possession, custody and control one (1) small heat-sealed transparent
plastic sachet containing methamphetamine hydrochloride commonly known as "shabu", weighing
0.03 gram, referred to as specimen B (NBS-2) in Chemistry Report No. BD-012-08, a dangerous
drug.4

The Information in Crim. Case No. 13-2008 was similarly worded to that in Crim. Case No. 11-2008,
except that it incriminated Guadayo for illegal possession of "one (1) small heat-sealed transparent
plastic sachet containing methamphetamine hydrochloride commonly known as 'shabu,' weighing
0.04 gram, a dangerous drug."5

When arraigned on April 29, 2008, Hilario and Guadayo pleaded not guilty to the charges against
them.6

The prosecution presented a lone witness, Police Officer (PO) 1 Nemesio Brotonel de Sagun (de
Sagun) of the Philippine National Police (PNP), then assigned in Lemery, Batangas. PO1 de Sagun
testified that on January 22, 2008, at around 11:00 in the evening, he was with P02 Arnold
Magpantay (Magpantay) and POI Melvin Cabungcal (Cabungcal) in Sitio Bagong Barrio, Barangay
(Brgy.) Maguihan, Lemery, Batangas, to conduct surveillance and a buy-bust operation. POI de
Sagun, in civilian clothes, acted as poseur-buyer and was able to buy shabu for ₱500.00 from
Hilario. Upon consummation of the sale, POI de Sagun personally arrested Hilario and marked the
₱500.00-bill he paid Hilario as "NBS-1" and the shabu Hilario sold to him as "NBS-2." After the
arrest, POI de Sagun brought Hilario to the Lemery police station and turned over custody of Hilario
to the investigator-on-duty, but PO1 de Sagun could not recall the name of said investigator. PO1 de
Sagun also claimed that he prepared an inventory of the seized items in the presence of "Ma'm
Orlina" and Sims Garcia, representatives from the Department of Justice (DOJ) and the media,
respectively. PO1 de Sagun then brought the seized items to the Batangas Provincial Crime
Laboratory Office for examination, and according to him, the submitted specimen tested positive
for shabu. 7

PO1 de Sagun further recounted that during the buy-bust operation, Guadayo ran away, so PO2
Magpantay had to chase after her. When P02 Magpantay subsequently caught up with Guadayo, he
recovered and confiscated from her another sachet of shabu. PO1 de Sagun, though, admitted that
he was not personally present when PO2 Magpantay seized the sachet of shabu from Guadayo.

During PO1 de Sagun's direct examination, a brown sealed envelope was presented, and when
opened, it contained two heat-sealed transparent sachets of shabu. When questioned as to why
there were two sachets of shabu, PO1 De Sagun maintained that he confiscated only one sachet
from Hilario, and suggested that the other sachet was the one seized by PO2 Magpantay from
Guadayo. Between the two sachets of shabu, PO1 de Sagun identified the sachet marked "NBS-1"
as the one which he confiscated from Hilario.8

When PO1 de Sagun was subjected to cross-examination, he reiterated that he had marked the
₱500.00-bill used in the buy-bust operation as "NBSI" and the sachet of shabu bought from Hilario
as "NBS-2." When pressed further by the defense counsel on the fact that he identified the sachet
of shabu marked as "NBS- I" as the one he seized from Hilario, PO1 de Sagun confirmed the
apparent discrepancies in his testimony.9

Also in the course of PO1 de Sagun's cross-examination, he attested that he, PO2 Magpantay, and
PO1 Cabungcal went to Brgy. Maguihan on January 22, 2008 based on information gathered from
concerned citizens that sale of dangerous drugs was rampant in the area; they prepared a pre-
operation report but he did not have a copy of the same with him at the trial; they did not know nor
did they conduct a surveillance of Hilario and Guadayo prior to January 22, 2008; and when they
went to Brgy. Maguihan, they were not certain of the subject of their buy-bust operation.

The prosecution additionally submitted as evidence the Magkalakip na Sinumpaang Salaysay dated
January 22, 2008 of POI de Sagun and P02 Magpantay; Chemistry Report No. BD-012-08 dated
January 23, 2008 issued by Police Chief Inspector (P/CInsp.) Jupri Caballegan Delantar, Forensic
Chemical Officer, of the Batangas Provincial Crime Laboratory Office, PNP; the sachet of shabu with
marking "NBS-1 ;" and photocopy of the P500.00-bill with Serial No. 665579 and marking "NBS-1."
Chemistry Report No. BD-012-08 stated that two specimens were seized from
Hilario, i.e., Specimens A (NBSl) and B (NBS-2), weighing 0.04 gram and 0.03 gram, respectively,
which both tested positive for Methamphetamine Hydrochloride, a dangerous drug.

For its part, the defense called Hilario10 and Guadayo11 to the witness stand. Hilario used to live in
Tondo, Manila, but their house was demolished, so she and her family moved to Brgy. Maguihan in
Lemery, Batangas in March 2007. Guadayo lived with and served as a babysitter for Hilario's sister-
in-law.

According to the combined narrative of Hilario and Guadayo, on January 22, 2008, at about 10:00 in
the evening, they were both at Hilario's house. Hilario was tending to her sick 12-year-old daughter,
and Guadayo was there to help Hilario with the laundry. A neighbor, Feliciano Anuran (Anuran), had
just arrived to borrow a DVD, when three police officers entered Hilario's house. Among the police
officers, Hilario already knew PO1 de Sagun at that time because the latter frequented their place.
The police officers demanded that Hilario show them the money and shabu. Hilario replied that she
did not have any money and shabu. Without presenting any warrant, the police officers, particularly,
PO1 de Sagun, then searched Hilario's house, but found nothing. At this point, Anuran ran out of the
house and was chased by the police officers. When the police officers returned, they invited Hilario
and Guadayo to the police station to answer some of the police officers' questions. When Hilario
further inquired as to the reason for the invitation, the police officers told her to just go with them.
The police officers brought Hilario, Guadayo, and even Hilario's sick daughter to the police station,
and after only a short stay at an office in the police station, and without actually being asked any
questions, all three were put in jail. On January 23, 2008, Hilario and Guadayo were subjected to a
drug test, and on January 24, 2008, they were brought to Batangas City for inquest proceedings.

On August 23, 2011, the RTC promulgated its Decision, finding Hilario and Guadayo guilty of all the
charges against them. The RTC highlighted that this was a case of a buy-bust operation and
adjudged that the prosecution was able to prove all the elements of the offenses charged, to wit, the
prosecution witness, PO1 de Sagun, testified on how the buy-bust transaction took place and
properly identified the poseur-buyer and seller, plus the illegal drug was presented as evidence in
court. The RTC sentenced Hilario and Guadayo as follows:

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

1. In Criminal Case No. 10-2008, accused Marilou Hilario y Diana, is hereby found guilty beyond
reasonable doubt for violating Sec. 5 of Republic Act 9165 and is hereby sentenced to suffer the
penalty of life imprisonment and a fine of Five Hundred Thousand Pesos (₱500,000.00);

2. In Criminal Case No. 11-2008, accused Marilou Hilario y Diana, is hereby found guilty beyond
reasonable doubt for violating Sec. 11 of Republic Act 9165 and is hereby sentenced to suffer the
penalty of twelve (12) years and one (1) day to twenty (20) years of imprisonment;
3. In Criminal Case No. 13-2008, accused Lalaine Guadayo y Royo, is hereby found guilty beyond
reasonable doubt for violating Sec. 11 of Republic Act 9165 and is hereby sentenced to suffer the
penalty of twelve (12) years and one (1) day to twenty (20) years of imprisonment.12

The Motion for Reconsideration of Hilario and Guadayo was denied for lack of merit by the RTC in
an Order13 dated September 26, 2011. Hilario and Guadayo filed a Notice of Appeal,14 which the RTC
granted in an Order15 dated October 5, 2011.

The appeal of Hilario and Guadayo before the Court of Appeals was docketed as CA-G.R. CR.-H.C.
No. 05244.

In its Decision dated July 18, 2013, the Court of Appeals partially granted the appeal.

The Court of Appeals affirmed the conviction of Hilario for illegal sale of dangerous drugs in Crim.
Case No. 10-2008, finding PO1 de Sagun's testimony on the completed buy-bust operation·
credible. It was amply proven by PO1 de Sagun's testimony that a sale of shabu transpired between
Hilario as the ·seller and PO1 de Sagun as the poseur-buyer. The appellate court also cited the
presumption of regularity in PO1 de Sagun's performance of his official duties; the absence of proof
of ill motive on PO1 de Sagun's part to falsely impute a serious crime against Hilario; and substantial
compliance with the procedure on custody of evidence in drug cases since PO1 de Sagun took
custody of the sachet of shabu seized from Hilario and personally delivered the same to the crime
laboratory for examination, wherein it was tested positive for shabu.

The Court of Appeals though, in the same Decision, acquitted Hilario in Crim. Case No. 11-2008 and
Guadayo in Crim. Case No. 13-2008, for the following reasons:

Criminal Case No. 11-2008

On the other hand, this Court disagrees with the trial court in finding accused-appellant Hilario guilty
for violation of Section 11 of R.A. No. 9165.

xxxx

In 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.

Significantly, in the present case, only one sachet of shabu was confiscated from accused-appellant
[Hilario], the one subject of the sale. No evidence was shown that she was further apprehended in
possession of another quantity of prohibited drugs not covered by or included in the sale. As
correctly argued by the plaintiff-appellee, the accused cannot be convicted for possession of the
prohibited drugs she sold because possession of dangerous drugs is generally inherent in the crime
of sale.

In People v. Posada, the Supreme Court ruled that possession of prohibited or dangerous drugs is
absorbed in the sale thereof, citing the case of People v. Lacema x x x.

xxxx
To reiterate, only one (1) shabu sold by accused-appellant, Hilario was established. There was no
other evidence that another shabu was found in her possession, not covered by the sale and
probably intended for a different purpose like another sale or for her own use was proven.
Accordingly, she cannot be convicted separately for illegal possession and for illegal sale because in
this particular case possession is absorbed in the act of sale thereof.

Criminal Case No. 13-2008

Anent, accused-appellant, Guadayo, this Court is convinced that the trial court erred in finding the
accused guilty for violation of Section 11 of R.A. No. 9165.

The prosecution was able to establish that appellant Guadayo was in possession of a sachet
of shabuas testified to by PO1 De Sagun who recounted that PO1 Magpantay pursued and arrested
Guadayo x x x.

xxxx

Unfortunately, the record is bereft of proof on the chain of custody of the shabu taken from appellant
Guadayo. PO1 De Sagun did not state that the sachet of shabu was handed to him by PO1
Magpantay after it was confiscated from appellant Guadayo. The chain of custody rule requires that
the testimony be presented about every link in the chain, from the moment the item was seized up to
the time it is offered in evidence. Notably, in this case, the prosecution failed to put on witness stand
PO1 Magpantay who allegedly ran after appellant Guadayo and seized the shabu.

Corollary thereto, there was a break in the chain of custody because no mention was made as to
what happened to the substance from the time it was seized from the appellant [Guadayo], how it
got to the laboratory and how it was kept before being offered in evidence.

More importantly, no shabu allegedly seized from appellant, Guadayo was identified before the trial
court.

As aptly held by the Supreme Court in Malillin v. People:

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.

Likewise, the Supreme Court made an enlightening disquisition on this matter in People v.
Doria, viz.:

Given the high concern for the due recording of the authorized movements and custody of the
seized drugs or controlled chemicals or plant sources of dangerous drugs or laboratory equipment,
the presentation as evidence in court of the dangerous drugs subject of and recovered during the
illegal sale is material in every prosecution for the illegal sale of dangerous drugs. Without such
dangerous drugs being presented as evidence, the State does not establish the corpus delicti,
which, literally translated from Latin, refers to the body of the crime, or the actual commission by
someone of the particular offense charged.

With crucial portions of the chain of custody not clearly accounted for and the
alleged shabuconfiscated from appellant Guadayo not clearly established, reasonable doubt is thus
created as to her guilt. Appellant, Guadayo is therefore entitled to an acquittal for violation of Section
11 of Article II of R.A. No. 9165.16

Ultimately, the Court of Appeals decreed:

WHEREFORE, premises considered, this Court PARTIALLY GRANTS the instant appeal. The
assailed Decision of RTC of Lemery, Batangas, (Branch 5) dated 23 August 2011 is MODIFIED as
follows;

1. Appellant Hilario is hereby ACQUITTED in Criminal Case No. 11-2008 for violation
of Section 11 of RA No. 9165 as being considered absorbed in the commission of
Section 5 of RA No. 9165 under Criminal Case No. 10- 2008; and

2. Appellant Guadayo is hereby ACQUITTED in Criminal Case No. 13-2008 for

violation of Section 11 of R.A. No. 9165 on reasonable doubt and is ordered
immediately RELEASED from detention, unless she is confined for any other lawful
case.

Other aspects of the Decision are hereby AFFIRMED.

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.17

Hilario's Notice of Appeal was given due course by the appellate court in a Resolution18 dated August
13, 2013.

In a Resolution19 dated February 19, 2014, this Court required the parties to file their respective
Supplemental Briefs if they so desire. Both parties manifested that they are no longer filing a
Supplemental Brief.20

In her Brief filed before the Court of Appeals, Hilario argued that the prosecution failed to establish
the elements of illegal sale of dangerous drugs, penalized under Article II, Section 5 of Republic Act
No. 9165. Hilario contended that PO1 de Sagun only made a blanket declaration that as poseur-
buyer, he was able to buy shabu from Hilario and his testimony lacked clear and complete details of
the supposed buy-bust operation. Hilario likewise averred that the identity of the shabu supposedly
bought and confiscated from Hilario was not established with certainty by the prosecution, pointing
out that PO1 de Sagun's confusion as to the markings affixed on the seized item was apparent.
Thus, Hilario asserted that serious doubts arose as to whether the sachet of
suspected shabu submitted for laboratory examination were the same as that purportedly bought
and confiscated from her.

There is merit in this appeal.

At the outset, the Court establishes that an appeal is a proceeding undertaken to have a decision
reconsidered by bringing it to a higher court authority. The right to appeal is neither a natural right
nor is it a component of due process. It is a mere statutory privilege, and may be exercised only in
the manner and in accordance with the provisions of law. When the Court of Appeals imposed a
penalty of reclusion perpetua or life imprisonment, an accused may: (1) file a notice of appeal under
Rule 124, Section 13(c) of the Rules of Court to avail of an appeal as a matter of right before the
Court and open the entire case for review on any question; or (2) file a petition for review
on certiorari under Rule 45 to resort to an appeal as a matter of discretion and raise only questions
of law.21

In this case, the Court of Appeals affirmed the RTC judgment finding Hilario guilty of illegal sale of
dangerous drugs and imposing upon her the sentence of reclusion perpetua. Hilario filed a Notice of
Appeal with the appellate court in accordance with Rule 122, Section 3(e), in relation to Rule 124,
Section 13(c), of the Rules of Court, which provide:

Rule 122
APPEAL

xxxx

SEC. 3. How appeal taken. –

xxxx

(e) Except as provided in the last paragraph of section 13, Rule 124, all other appeals to the
Supreme Court shall be by petition for review on certiorari under Rule 45.

Rule 124
PROCEDURE IN THE COURT OF APPEALS

xxxx

SEC. 13. Certification or appeal of case to the Supreme Court. - x x x

xxxx

(c) In cases where the Court of Appeals imposes reclusion perpetua, life imprisonment or a lesser
penalty, it shall render and enter judgment. imposing such penalty. The judgment may be appealed
to the Supreme Court by notice of appeal filed with the Court of Appeals.

Therefore, Hilario's appeal opens the entire case for review by the Court on any question, whether or
not the questions were raised by Hilario as accused-appellant and whether they are questions of fact
or mixed questions of fact and law.

Undeniably, Hilario challenges the sufficiency of evidence to support her conviction for illegal sale of
dangerous drugs. The RTC and the Court of Appeals gave total faith and credence to the testimony
of PO1 de Sagun, the sole prosecution witness.

The rule that this Court generally desists from disturbing the conclusions of the trial court on the
credibility of witnesses will not apply where the evidence of record fails to support or substantiate the
findings of fact and conclusions of the lower court; or where the lower court overlooked certain facts
of substance and value that, if considered, would affect the outcome of the case; or where the
disputed decision is based on a misapprehension of facts.22 All of these exceptional circumstances
are availing in the present case.

In People v. Ismael, 23 the Court pronounced:

To secure a conviction for illegal sale of dangerous drugs under Section 5, Article II of RA 9165, the
prosecution must establish the following elements: (1) the identity of the buyer and the seller, the
object of the sale and its consideration; and (2) the delivery of the thing sold and the payment
therefor. What is important is that the sale transaction of drugs actually took place and that the
object of the transaction is properly presented as evidence in court and is shown to be the same
drugs seized from the accused.

xxxx

In cases of illegal sale and illegal possession of dangerous drugs, the dangerous drug seized from
the accused constitutes the corpus delicti of the offense. Thus, it is of utmost importance that the
integrity and identity of the seized drugs must be shown to have been duly preserved. "The chain of
custody rule performs this function as it ensures that unnecessary doubts concerning the identity of
the evidence are removed." (Citations omitted.)

PO1 de Sagun's testimony - consisting of generalizations which lacked material details, riddled with
inconsistencies, and uncorroborated - failed to establish the elements of the offense charged with
proof beyond reasonable doubt.

PO1 de Sagun described the alleged buy-bust operation only m general terms, thus:

Q Will you please tell the Honorable Court why did your group arrest accused Marilou Hilario on
January 22, 2008 at about 11 o'clock in the evening?

A Through the buy-bust operation we conducted I was able to buy shabu from her, sir.

Q Alright in other words you pretended yourself to buy shabu. Were you able to buy shabu from the
said accused?

A Yes, sir.

Q How much shabu did you buy [from] Marilou Hilario?

A Five hundred (₱500.00) pesos only, sir.

Q After buying shabu from the accused in the amount of five hundred pesos (₱500.00), what
happened next?

A We immediately arrested the person, sir.

Q Were you in uniform on that time when you conducted the buybust operation?

A No sir, we were in civilian.

Q So after buying shabu you arrested the accused?

A Yes, sir.

Q Were you alone or together with other police officers in arresting the accused?
A I was with PO1 Cabungcal, sir.

Q Who actually among you arrested accused Marilou Hilario?

A I, sir.24

It's a generic narrative of any buy-bust operation, offering no distinctive detail except for Hilario's
name as alleged seller. PO1 de Sagun failed to describe how he came to know that Hilario was
selling shabu; where Hilario was and what she was doing that time; how he approached her and
asked to buy shabu from her; how they came to agree on the purchase price for the shabu; where
Hilario got the sachet of shabu she handed to him; and what his pre-arranged signal was to show
the other police officers that the sale had been consummated and Hilario could already be arrested -
details which police officers who carried out legit buy-bust operations should be able to provide
readily and completely.

When pressed for details during his cross-examination, PO1 de Sagun was unable to give
enlightening answers -

Q Prior to the conduct of the buy-bust operation, can you tell us what are the preparations you
made?

A We prepared a pre-operation report, ma'am.

Q What is the basis of your pre-operation report?

A Due to the sale of the illegal drugs, ma'am.

Q You mean to tell us because of the alleged information that there was a rampant selling of illegal
drugs?

A Yes, ma'am.

Q By the way Mr. witness did you conduct surveillance against Marilou Hilario and Lalaine Guadayo
prior to January 22, 2008?

A No, ma'am.

Q By the way, do you know this Marilou Hilario on January 22, 2008 or before that day?

A No, ma'am.

Q How about accused Lalaine Guadayo?

A No, ma'am.

Q So, that was the first time that you saw on January 22, 2008 these Marilou Hilario and Lalaine
Guadayo?

A Yes, ma'am.
 xxxx

Q Do you have a copy of your pre-operation report?

A I have no copy of the pre-operation report, ma'am.25

So according to PO1 de Sagun, he and his fellow police officers conducted a buy-bust operation in
Brgy. Maguihan based on information from unnamed source/s that selling of drugs was rampant in
the area; they prepared a pre-operation report which was not produced in court; they went to Brgy.
Maguihan without a specific target/subject; they did not conduct any surveillance prior to the buy-
bust operation on January 22, 2008; and they did not know Hilario or Guadayo prior to the buy-bust
operation and the arrest of the two. How then were the police officers able to identify Hilario or
Guadayo, from all the other residents of Brgy. Maguihan, as the ones selling drugs in Brgy.
Maguihan and who would be the subject of their buy-bust operation?

The lack of specific details on the planning and conduct of the buybust operation on January 22,
2008 in Brgy. Maguihan casts serious doubts that it actually took place and/or that the police officers
carried out the same in the regular performance of their official duties. Relevant herein is the
following discourse of the Court on buy-bust operations in People v. Ong26:

A buy-bust operation is a form of entrapment, which in recent years has been accepted as a valid
means of arresting violators of the Dangerous Drugs Law. It is commonly employed by police
officers as an effective way of apprehending law offenders in the act of committing a crime. In a buy-
bust operation, the idea to commit a crime originates from the offender, without anybody inducing or
prodding him to commit the offense. Its opposite is instigation or inducement, wherein the police or
its agent lures the accused into committing the offense in order to prosecute him. Instigation is
deemed contrary to public policy and considered an absolutory cause.

To determine whether there was a valid entrapment or whether proper procedures were undertaken
in effecting the buy-bust operation, it is incumbent upon the courts to make sure that the details of
the operation are clearly and adequately laid out through relevant, material and competent evidence.
For, the courts could not merely rely on but must apply with studied restraint the presumption of
regularity in the performance of official duty by law enforcement agents. This presumption should not
by itself prevail over the presumption of innocence and the constitutionally protected rights of the
individual. It is the duty of courts to preserve the purity of their own temple from the prostitution of the
criminal law through lawless enforcement. Courts should not allow themselves to be used as
instruments of abuse and injustice lest innocent persons are made to suffer the unusually severe
penalties for drug offenses.

In People v. Doria, we stressed the "objective" test in buy-bust operations. We ruled that in such
operations, the prosecution must present a complete picture detailing the transaction, which "must
start 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 drug subject of the sale. We emphasized that 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."

In the case at bar, the prosecution evidence about the buy-bust operation is incomplete. The
confidential informant who had sole knowledge of how the alleged illegal sale of shabu started and
how it was perfected was not presented as a witness. His testimony was given instead by SPO 1
Gonzales who had no personal knowledge of the same. On this score, SPOl Gonzales' testimony is
hearsay and possesses no probative value unless it can be shown that the same falls within the
exception to the hearsay rule. To impart probative value to these hearsay statements and convict the
appellant solely on this basis would be to render nugatory his constitutional right to confront the
witness against him, in this case the informant, and to examine him for his truthfulness. As the
prosecution failed to prove all the material details of the buy-bust operation, its claim that there was
a valid entrapment of the appellants must fail. (Emphases supplied, citations omitted.)

Furthermore, the prosecution failed to present during the trial the corpus delicti. There were material
inconsistencies between PO1 de Sagun's testimony vis-a-vis the object and documentary evidence
submitted by the prosecution itself which rendered highly questionable whether the dangerous drug
presented before the RTC during trial was actually the same as that seized from Hilario during the
buy-bust operation.

During his direct examination, PO1 de Sagun recalled the chain of custody of the items seized from
Hilario during the buy-bust operation, thus:

Q After buying shabu from the accused in the amount of five hundred pesos (₱500.00), what
happened next?

A We immediately arrested the person, sir.

xxxx

Q Who actually among you arrested accused Marilou Hilario?

A I, sit.

Q After arresting the accused, what did you do next, if any?

A We placed the markings "NBS-1" to the marked money and in the alleged shabu, "NBS-2", sir.

Q You mean to tell before the Court that immediately after the arrest of the accused you placed
markings on the money used in buying shabu and the shabu itself?

A Yes, sir.

Q In the place where the accused was arrested?

A Yes, sir.

Q Who actually placed the marking in the shabu?

A I, sir.

Q What marking did you place in the money you used in buying shabu?

A "NBS-1 ", sir.

Q What was the denomination of the money you used in buying shabu?
A A five hundred (₱500.00) peso bill, sir.

Q What about in the shabu you obtained ,from the accused in buying the same, what marking did
you place?

A "NBS-2", sir.

xxxx

Q You stated earlier, you marked the sachet of shabu you bought from the accused. If the same
sachet of shabu will be shown to you, will you be able to identify or recognize the same?

A Yes, sir.

Q Why will you be able to identify the shabu you bought from the accused during the buy-bust
operation?

A Yes, because of the marking, sir.

xxxx

Q What did you do with the shabu you bought from the accused in this case?

A We brought them to the Crime Laboratory, for examination, sir.

Q Do you know what was the result of the laboratory examination of the specimen pertaining to this
case?

A It gives positive result, sir.27 (Emphases supplied.)

However, when the public prosecutor opened the brown sealed envelope purportedly containing the
dangerous drugs seized from Hilario, there were two sachets of shabu inside, marked as "NBS-1"
and "NBS-2." Upon further questioning, PO1 de Sagun testified:

FISCAL PEREZ

Q How many sachets of shabu have you taken from the accused aside from the one you bought
from the accused?

A Only one, sir.

Q I will ask you, you pretended to buy shabu from the accused as in fact you were able to buy
shabu?

A Yes, sir.

Q The shabu you bought you marked in evidence as "NBS"?

A Yes, sir.
xxxx

FISCAL PEREZ

Q Can you please explain why there are two (2) sachets of shabu here?

A I bought only one·(l) sachet, sir.

COURT

Q What about the other one?

A PO1 Magpantay ran after one Lalaine, your Honor.

Q The other sachet of shabu was allegedly taken from one Lalaine?

A Yes, Your Honor.

FISCAL PEREZ

Q That's why a case was filed against that Lalaine?

A Yes, sir.

Q So, you were present, who is the police officer who confiscated the sachet of shabu from Lalaine?

A P02 Magpantay, sir.

Q Were you not present when P02 Magpantay took the shabu from

Lalaine?

A Yes, sir.

COURT

Q Were you present?

A No, Your Honor.

Q You were not certain whether Magpantay is present?

A Yes, sir.

FISCAL PEREZ

Q So, in other words you were not present when Magpantay took

the shabu from Lalaine?

A Yes, sir.

COURT

Q Were you present?

A No, Your Honor.

Q You were not certain whether Magpantay is present?

A Yes, sir.

FISCAL PEREZ

Q So, in other words you were not present when Magpantay took the shabu from Lalaine?

A Yes, sir.

xxxx

Q I am showing you sachets of suspected shabu, will you please tell the Honorable Court which
among the two (2) sachets of shabu you bought from Marilou Hilario?

A The one with marking "NBS-1", sir.

Q Why did you say that "NBS-I is the sachet of shabu you bought from Marilou?

A Because of the marking, sir.

Q What marking is that?

A NBS-1, sir.

COURT

Q What is that NBS stands for?

A Nemesio Brotonel de Sagun, Your Honor.28 (Emphases supplied.)

PO 1 de Sagun himself admitted the discrepancies during his cross-examination:

Q And you likewise stated that you were able to buy shabu from accused Marilou Hilario?

A Yes, ma'am.

Q You likewise stated that marked money was marked as NBS-1?

A Yes, ma'am.
Q And that suspected shabu which you allegedly bought from accused Marilou Hilario was marked
as NBS-2?

A Yes, ma' am.

Q But when the Public Prosecutor presented to you the alleged shabu which you allegedly bought
from the accused which you identified because of the marking NBS- 1, right?

A Yes, ma'am.

Q So, there was a discrepancy with your marking because you stated before, the marked money
was marked as NBS-1 and the shabu which you allegedly bought from accused Marilou Hilario was
already marked as NBS- I, right?

A Yes, ma'am.29

PO1 de Sagun was insistent that he seized only one sachet of shabu from Hilario; and that he
marked the ₱500.00-bill used in the buy-bust operation as "NBS-1" and the sachet of shabu from
Hilario as "NBS-2." Yet, confronted with two sachets of shabu, marked as "NBS-1" and "NBS- 2," he
identified the sachet marked as "NBS-1" as the one he bought from Hilario.

PO1 de Sagun could not explain how there were two sachets of shabu even though he testified that
the items seized from the buy-bust operation were in his custody the entire time from the arrest of
Hilario, until their inventory at the police station, and finally, until the delivery of the
suspected shabu to the crime laboratory for examination. The prosecution claimed that the other
sachet of shabu was the one seized by PO2 Magpantay from Guadayo.

The Court is not persuaded.

First, from the very beginning, the prosecution charged Hilario before the RTC through two separate
Informations: (a) Crim. Case No. 10-2008 for illegal sale of dangerous drugs, which involved a
sachet of shabu weighing 0.04 gram, referred to as "specimen A (NBS-1);" and (b) Crim. Case No. l
I- 2008 for illegal possession of dangerous drugs, which involved a sachet of shabu weighing 0.03
gram, referred to as "specimen B (NBS-2)." However, the prosecution changed its theory before the
Court of Appeals, stating in its Brief for the Appellee that only one sachet of shabu was confiscated
from Hilario and agreeing in the acquittal of Hilario in Crim. Case No. 11-2008 for the reason that
she "cannot be convicted for possession of the prohibited drugs she sold because possession of
dangerous drugs is generally inherent in the crime of sale of illegal drugs. Conviction for both crimes
is not feasible."30 Meanwhile, the Information in Crim. Case No. 13-2008 for illegal possession of
dangerous drugs against Guadayo involved a sachet of shabu weighing 0.04 gram.

Second, the documentary evidence of the prosecution, particularly, (a) the Inventories31 of the items
seized, dated January 22, 2008, prepared by PO1 de Sagun and witnessed by Mrs. Loma Orlina
and Simplico "Sims" Garcia, representatives of the DOJ and the media, respectively; (b) the
Laboratory Examination Requests32 dated January 23, 2008 for the specimens seized, prepared by
Police Superintendent Gaudencio Del Valle Pucyutan; and (c) Chemistry Report Nos. BD-O12-08
and BD-OI3-0833 dated January 23, 2008, issued by P/Cinsp. Delantar, all consistently state that
there were two sachets of shabu from Hilario marked as "NBS-I" (weighing 0.04 gram) and "NBS-2"
(weighing 0.03 gram) and one sachet of shabu from Guadayo marked as "AAM-1."
Third, PO2 Magpantay did not testify before the RTC. PO1 de Sagun conceded that he was not
present when PO2 Magpantay supposedly apprehended Guadayo and seized one sachet
of shabu from her possession, so PO1 de Sagun's testimony on said matters are hearsay.

And finally, the two sachets of shabu presented before the RTC were marked with "NBS," the initials
of PO1 de Sagun. It makes no sense that the sachet of shabu taken by PO2 Magpantay from
1âw phi 1

Guadayo be marked with PO1 de Sagun's initials. As the documentary evidence of the prosecution
itself showed, the sachet of shabu supposedly seized from Guadayo was appropriately marked
"AAM-1," presumably, PO2 Magpantay's initials.

Hence, it could not be said that one of the two sachets of shabu presented against Hilario during the
trial before the RTC was purportedly seized from Guadayo.

Clearly, the identity and integrity of the sachet of shabu allegedly seized by PO1 de Sagun from
Hilario were not preserved, despite PO1 de Sagun's assertion that he had been in possession of the
said sachet from its seizure from Hilario until its turnover to the crime laboratory. The prosecution
failed to establish the identity of the corpus delicti, much less, the identity of the corpus delicti with
moral certainty. When there are doubts on whether the seized substance was the same substance
examined and established to be the prohibited drug, there can be no crime of illegal possession or
illegal sale of a prohibited drug. The prosecution's failure to prove that the specimen allegedly seized
from Hilario was the same one presented in court is fatal to its case.34

It is fundamental in the Constitution35 and basic in the Rules of Court36 that the accused in a criminal
case enjoys the presumption of innocence until proven guilty. Likewise, it is well-established in
jurisprudence that the prosecution bears the burden to overcome such presumption. If the
prosecution fails to discharge this burden, the accused deserves a judgment of acquittal. On the
other hand, if the existence of proof beyond reasonable doubt is established by the prosecution, the
accused gets a guilty verdict.37 In order to merit conviction, the prosecution must rely on the strength
of its own evidence and not on the weakness of evidence presented by the defense.38

The evidence for the prosecution were insufficient in material details and fraught with discrepancies
and contradictions. PO1 de Sagun himself, who claimed to have seized, marked, and kept custody
of the sachet of shabu seized from Hilario, could not positively identify which between the two
sachets of shabu he was presented with at the trial, marked as "NBS-I" and "NBS-2," was the one he
actually seized from Hilario. Absent proof beyond reasonable doubt, the Court cannot merely rely on
the presumption that PO1 de Sagun regularly performed his official duties.

As the Court declared in Mallillin v. People,39 the presumption of regularity is merely just that - a mere
presumption disputable by contrary proof and which, when challenged by the evidence, cannot be
regarded as binding truth. Suffice it to say that this presumption cannot preponderate over the
presumption of innocence that prevails if not overthrown by proof beyond reasonable doubt. The
lack of conclusive identification of the illegal drugs allegedly seized from Hilario in this case strongly
militates against a finding of guilt.

Also worth reproducing hereunder is the declaration of the Court in People v. Pagaduan40that:

We are not unmindful of the pernicious effects of drugs in our society; they are lingering maladies
that destroy families and relationships, and engender crimes. The Court is one with all the agencies
concerned in pursuing an intensive and unrelenting campaign against this social dilemma.
Regardless of how much we want to curb this menace, we cannot disregard the protection provided
by the Constitution, most particularly the presumption of innocence bestowed on the appellant. Proof
beyond reasonable doubt, or that quantum of proof sufficient to produce moral certainty that would
convince and satisfy the conscience of those who act in judgment, is indispensable to overcome this
constitutional presumption. If the prosecution has not proved, in the first place, all the elements of
the crime charged, which in this case is the corpus delicti, then the appellant deserves no less than
an acquittal.

WHEREFORE, premises considered, the Decision dated July 18, 2013 of the Court of Appeals in
CA-G.R. CR-H.C. No. 05244 is REVERSED and SET ASIDE. Accused-appellant Marilou D. Hilario
is ACQUITTED of the charge of illegal sale of dangerous drugs, under Article II, Section 5 of
Republic Act No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002, for
failure of the prosecution to prove her guilt beyond reasonable doubt. She
is ORDERED immediately RELEASED from detention unless she is confined for another lawful
cause.

Let a copy of this Decision be furnished the Superintendent of the Correctional Institution for Women
for immediate implementation and to report the action she has taken to this Court within five (5) days
from receipt of this Decision.

SO ORDERED.