Documente Academic
Documente Profesional
Documente Cultură
MEMORANDUM
ACCUSED, through the undersigned counsel, and before this
Honorable Court, most respectfully submits this Memorandum in
support of his ACQUITTAL of the crimes for which he is charged, and
states, thus:
PREFATORY
1
“The presumption of innocence is a conclusion of law in
favor of the accused, whereby his innocence is not only
established but continues until sufficient evidence is introduced to
overcome the proof which the law created-namely, his innocence.
When a doubt is created, it is the result of proof and not the proof
itself. The courts will not impute a guilty construction or inference
to the facts when a construction or inference compatible with
innocence arises therefrom with equal force and fairness. In fact,
it is always the duty of a court to resolve the circumstances of
evidence UPON A THEORY OF INNOCENCE rather than upon a
theory of guilt where it is possible to do so. The accused is not to
be presumed guilty because the facts are consistent with his guilt;
this will be done only where the facts are inconsistent with his
innocence.” 2
I.
THE PROSECUTION FAILED TO
PORTRAY A BELIEVABLE PICTURE OF
THE ALLEGED BUY-BUST OPERATION.
2
The narration of events that supposedly transpired during their
execution of the entrapment of herein Accused is far from being a
straightforward testimony of the said arresting officers. It is mind-
boggling, to say the least, that the two (2) officers who supposedly
played key roles in the purported buy-bust would have extreme
inconsistencies in their testimonies on the sequence of events leading
to the drug-transaction and the actual exchange of the shabu and
marked-money between poseur-buyer, who was allegedly aided by a
civilian asset, and herein Accused, as seller.
3
Q: Is it not Mr. Witness that there were two (2) civilian assets who
were with you during the operation?
A: Only one (1).
Q: Now, you said you went to this KTB Bar in Remolador Street near
Cogon, correct?
A: Yes, Sir.
Q: Only together with this male civilian asset, correct?
A: Together with the team.
Q: And also this male civilian asset?
A: MALE.
Q: So, he was with you?
A: Yes, Sir. [Emphasis ours]
xxx
4
in determining the credibility of the prosecution’s witnesses regarding
the conduct of a legitimate buy-bust operation, is worth emphasis:
5
According to PO3 Serohijos, he was seated opposite / across /
infront of the Accused from the table, to wit:
Atty. Aleck Francis T. Lim cross-examines PO3 Serohijos
[TSN, 4/17/2013, pp. 28-30]:
xxx
Q: You said that accused near me, where did he seat?
A: Facing me, Sir.
Q: Facing you?
A: Yes, Sir.
Q: His back would be facing the cashier?
A: Yes, Sir.
Q: Facing the cachier of?
A: KTB Bar.
Q: His back would clearly shown also to other people who were also
inside the KTB Bar?
A: Yes, Sir.
Q: Now, given the place where the accused was seated, now you
mentioned in your testimony when the accused arrived he let you
choose two (2) sachets that is your testimony, correct?
A: Yes, Sir.
Q: You want to tell this Court to believe that accused would just
considering his back facing openly facing the other people inside the
KTB bar he would just openly show you two sachets of shabu
notwithstanding the other people could see?
A: He did not open immediately.
Q: Okay. How did he did it?
A: He sat down in front of me then he showed the two (2) sachets at
his side.
Q: At his side. If you show in his side you would not able to see because
according to you, you seat in front of him?
A: The two (2) tables are so small like this one.
Q: If I was the accused in these cases, I would seat here, you there and
the other male asset is here, I would show to the side you are not at
this side?
A: Near.
Q: Okay, knowing that the table is just like as this big... (interrupted)
COURT:
The table is square?
ATTY. LIM:
Square, Your Honor.
COURT:
The table is not rectangular not square.
ATTY. LIM:
Wait it’s square, Your Honor.
COURT:
Not rectangular.
ATTY. LIM:
Not rectangular, Your Honor.
COURT:
They were seated opposite to each other?
ATTY. LIM:
6
Opposite each other.” [Emphasis ours]
xxx
7
Moreover, in People v. Yutuc,6 the Supreme Court likewise
held that:
6
G.R. No. 82590, July 26, 1990.
7
People v. De la Cruz, G.R. No. 177222, October 29, 2008, 570 SCRA 273, 283.
8
G.R. No. 192261, November 16, 2011.
8
“[I]t is pertinent to mention the ruling in the case
of People v. Angelito Tan that courts are mandated to PUT
THE PROSECUTION EVIDENCE THROUGH THE CRUCIBLE OF
A SEVERE TESTING and that the presumption of innocence
requires them to take a more than casual consideration of
every circumstance or doubt favoring the innocence of the
accused. In the case at bench, the prosecution evidence,
when placed under severe testing, does not prove with
moral certainty that a legitimate buy-bust operation was
conducted against Salcena.” [Emphases added, citation
omitted]
II.
THE FAILURE OF THE PROSECUTION’S
POLICE-WITNESSES TO COMPLY WITH THE
STRICTURES UNDER SEC. 21 OF R.A. 9165, IN
THE CHAIN OF CUSTODY OF SEIZED DRUGS,
IS ENOUGH TO ENGENDER REASONABLE
DOUBT ON THE GUILT OF ACCUSED.
9
People v. Salonga, G. R. No. 194948, September 2, 2013.
10
People v. Dela Cruz, G.R. No. 205821, October 1, 2014; citing People v. Holgado, G.R. No. 207992,
August 11, 2014.
9
In the instant cases, the Prosecution’s own police-witnesses
failed to establish the integrity in the handling of the two (2)
medium cellophane sachets containing shabu through an
unbroken chain of custody after their purported consummation of a
buy-bust and a subsequent body-search on the Accused.
11
Originates from jurisprudence, which essentially states, that: Marking after seizure is the starting point
in the custodial link, thus it is vital that the seized contrabands are “immediately” marked because
succeeding handlers of the specimens will use the markings as reference. This procedure has been
incorporated in the Comprehensive Dangerous Drugs Act of 2002 (RA 9165) and its implementing rules,
including the PNP Manual on Anti-Illegal Drugs Operation and Investigation.
10
Direct-examination of PO3 Serohijos by Prosecutor Neferteri
Cristobal [TSN, 2/29/2012, pp. 10-14]:
xxx xxx
Q: And then after that exchanged of sachet of shabu and the P500.00 bill
what happened next if any?
A: I casually stand and went to the door and lit the cigarette to give the
pre-arranged signal for the team member that the transaction was
already consummated.
Q: Where did you stand?
A: At the door Ma’am of the Videoke Bar.
Q: So what happened next?
A: After I gave them a signal SPO1 Ampong was the one who first arrived
to us and when I saw that SPO1 Ampong is already there I told the
suspect that he is under arrest for selling illegal drugs.
Q: At the time that you stood up and lit a cigarette at the door, where was
the suspect then?
A: Sitting at the table Ma’am.
Q: Still sitting at the table?
A: Yes Ma’am, holding a glass of beer.
Q: So after you informed him that he was under arrest for selling an illegal
drug, what happened next if any?
A: He stood up and tried to resist but he was already restrained by SPO1
Ampong and myself and at that time the other team members were
already there.
Q: So what else if any happened during that time?
A: I searched his pockets and recovered the 500 peso bill marked money
at his right pocket.
Q: WHAT ELSE IF ANY DID YOU FIND?
A: ALSO THE OTHER SACHET.
Q: So after the other sachet of shabu and also the marked money what
happened next?
A: We informed him, the accused, that he is under arrest for violation of
R.A. 9165 the dangerous drugs act 2000 and that he has the right to
remain silent and that anything he would say can be used against him in
court, he has the right to look for a counsel if he cannot afford one the
government will be appointed in his own choice.
Q: So after that what happened next?
A: Our team leader Chief Insp. Olaivar decided that we will proceed to
our office to conduct the inventory thereat because the place at the
videoke bar there were customers and maybe the owner would not
agree because he would loss some wages if we would use his
premises that was the judgment call of our team leader.
Q: SO WHO TOOK CUSTODY OF THE SAID ITEMS THAT YOU FOUND FROM
THE BODY OF THE ACCUSED?
A: I TOOK CUSTODY.
Q: And then when you proceeded at the Camp Francisco Dagohoy what
happened there if any?
A: When we arrived thereat we immediately contacted the barangay
official of the place and the representative of the PDEA and the
media.
Q: And then after contacting them what happened next if any?
11
A: When the said persons arrived we began the inventory of the seized
items.
Q: Then who recorded the inventory of the seized items?
A: PO2 Macua Ma’am.
Q: So what evidence have you if any that the inventory was conducted?
A: The Seizure/Confiscation Receipt was filled up, Compliance of Inventory
was also filled up and pictures were taken.
xxx xxx
Q: In the Seizure/Confiscation Receipt it appears that the name of PO3 Ben
Gurion Serohijos is the Seizing Officer and above thereon is a signature,
do you know whose signature is it above the name?
A: This is my signature, Ma’am.
Q: Mentioned in this Seizure/Confiscation Receipt are two (2) pieces
medium sizes cellophane sachet with whit crystalline powder, I have
two (2) pieces of cellophane sachet with white crystalline substance
previously marked as Exhibits “L” and “L-1” for the prosecution, kindly
examine this and tell this Honorable Court what relation has this if
any to the one you mentioned in Seizure/Confiscation Receipt?
A: These are the one Ma’am.
Q: In these two (2) sachets there are markings including the initial EBC 01
October 28, 2010 and the other sachet the marking in blue ink with
the initials EBC 02 October 28, 2010 and there is also a signature
appearing below said markings in blue ink, DO YOU KNOW WHO
MADE THIS MARKING?
A: PO2 MACUA, MA’AM.
Q: YOU MENTIONED EARLIER THAT THE ONE (1) SACHET OF SHABU WAS
GIVEN TO YOU DURING THE TRANSACTION WHEREIN YOU BOUGHT A
SACHET OF SHABU FROM THE SUSPECT, CAN YOU IDENTIFY WHICH
AMONG THESE SACHETS WHICH IS THE OBJECT OF SALE?
A: I CANNOT IDENTIFY BECAUSE THEY LOOK THE SAME AND I FORGOT
BUT IT WAS REFLECTED IN OUR RECEIPT, BUT PHYSICAL I CANNOT
IDENTIFY BECAUSE THE TWO LOOK THE SAME, MA’AM.
[Emphases added]
xxx xxx
12
G.R. No. 201100, February 4, 2015.
12
Indeed, as we held in People v. Torres, equally
important in every prosecution for illegal sale of
dangerous or prohibited drugs is the presentation of
evidence of the seized drug as the CORPUS DELICTI. THE
IDENTITY OF THE PROHIBITED DRUG MUST BE PROVED
WITH MORAL CERTAINTY. It must also be established with
the same degree of certitude that the substance bought or
seized during the buy-bust operation is the same item
offered in court as exhibit. [Emphases, italics supplied]
13
REASONABLE DOUBT ARISES AS TO THE IDENTITY OF
THE SHABU PRESENTED AS EVIDENCE, due to these series of
breaches in the custodial chain. Based on this alone, Accused
deserves an acquittal from the instant charges. The Supreme Court,
in People v. Partoza,14 declared the acquittal of the accused due to
failures committed by the officers involved in the post-seizure of
illegal drugs, to wit:
14
G.R. No. 182418, May 8, 2009.
15
G.R. No. 203028, January 15, 2014.
14
Q: NOW, CAN YOU HOLD THIS. YOU CONFIRMED TO ME THAT IN THIS
PARTICULAR DOCUMENT SEIZURE/CONFISCATION RECEIPT WHICH
YOU MARKED AS, IT’S STILL NO MARKING YOUR HONOR. BUT THERE
IS ATTACHED TO THE RECORD OF THIS CASE YOU WILL CONFIRM TO
ME THAT THE TWO (2) MEDIUM SIZE CELLOPHANE SACHETS DOES
NOT BEAR ANY MARKINGS OR INITIAL?
A: NO, SIR.
Q: NO MARKING OR NO INITIAL, CORRECT?
A: YES, SIR.
Q: You will also likewise confirm that in the other document
COMPLIANCE ON PHYSICAL INVENTORY AFTER SEARCH AND SEIZURE
in THE TWO (2) MEDIUM SIZE SACHET WITH WHITE CRYSTALLINE
POWDER YOU WOULD LIKEWISE CONFIRM THAT THERE IS NO
MARKING OR INITIAL?
A: YES, SIR.
Q: Mr. Witness according to you, you have been involved of many drug
operations, is it not that a Standard Operating Procedure pursuant
Section 21, Article 2 of Republic Act 9165 that there must be
immediate marking on the drugs which was allegedly seized, correct?
A: Yes, Sir.
Q: BUT IN THIS PARTICULAR TWO (2) DOCUMENTS YOU WILL AGREE
WITH ME THAT THE MARKINGS ON THE ALLEGED ITEMS OF SACHETS
SEIZED ARE NOT INDICATED?
WITNESS:
At that time, Sir?
ATTY. LIM:
YES.
Q: ARE NOT INDICATED?
A: YES.
Q: SO, IN EFFECT YOU HAVE NO DOCUMENTARY PROOF THAT THERE
WAS INDEED MARKING IMMEDIATE MARKING THAT WAS MADE ON
THE ALLEGED SACHETS THAT YOU ARE TALKING NO DOCUMENTARY
PROOF?
A: NO.
Q: NO DOCUMENTARY PROOF?
A: YES, SIR.
COURT:
AS TO THE MARKING?
ATTY. LIM:
NO DOCUMENTARY PROOF.
Q: Because when we talked about the inventory there are two (2)
important aspects in the inventory, correct?
A: Yes.
Q: THERE MUST BE IMMEDIATE MARKING ON THE DRUG OR SACHET
RECOVERED AFTER THAT THERE BE A LISTING OF ALL THOSE ITEMS
THAT WERE RECOVERED, CORRECT?
A: YES.
Q: And that you also aware of Section 21 a, Article 2 of Republic Act
9165?
A: Yes, Sir.
Q: And in that law it’s very clear there was immediate inventory on the
items seized, correct?
A: Yes. xxx xxx [Capitalization and underscoring for emphasis]
15
The preceding testimonies of the poseur-buyer who also
assumed the role of a seizing officer (PO3 Serohijos) is a clear
confession that the shabu subject of the sale, and the shabu
confiscated in a consequent body-search did not bear identifying
marks before these were turned over to PO2 Macua by PO3
Serohijos, the officer who had initial custody of said items. Evidently,
the markings on said items were only done during the inventory at
Camp Dagohoy together with all the other items that were allegedly
confiscated from Accused in a subsequent body-search. The Supreme
Court’s ruling in People v. Orteza,16 finds applicability to the case at
bar, to wit:
16
Supra note 1, G.R. No. 173051.
17
Supra note 13, G.R. No. 203028.
16
saw P03 Sia take custody of the confiscated shabu, and later
mark the sachet at the DAID-WPD office. EVEN GRANTING
THAT P03 SIA DID MARK THE SAME SACHET AT THE PRECINCT,
BREAKS IN THE CHAIN OF CUSTODY HAD ALREADY TAKEN
PLACE, FIRST, WHEN HE CONFISCATED IT FROM BERAN
WITHOUT ANYONE OBSERVING HIM DO SO AND WITHOUT
MARKING THE SUBJECT SACHET AT THE PLACE OF
APPREHENSION, AND THEN AS HE WAS TRANSPORTING IT TO
THE PRECINCT, THUS CASTING SERIOUS DOUBT UPON THE
VALUE OF THE SAID LINKS TO PROVE THE CORPUS DELICTI.
Moreover, the records also show that P03 Sia submitted the
sachet to the laboratory only on the next day, without
explaining how he preserved his exclusive custody thereof
overnight.
“Xxx xxx .
“The chain of custody rule requires that there be testimony
about every link in the chain, from the moment the object
seized was picked up to the time it was offered in evidence, in
such a way that every person who touched it would describe
how and from whom it was received, where it was and what
happened to it while in the possession of the witness, the
condition in which it was received and the condition in which it
was delivered to the next link in the chain.”
17
subsequent body-search of the Accused. Therefore, said
item had a different starting point in the custodial
chain. Recording said item together with the other
seized evidence not subject of the buy-bust
generates a gap in the custodial chain. More so, that
the officers still had to wait for the inventory and marking
to take place until the arrival of civilian witnesses, adding
to the fact that PO3 Serohijos failed to mark either of the
two (2) sachets. On close inspection of the assailed
document, it is clear that the two (2) sachets of shabu
were even RECORDED AS ONE (1) SINGLE ENTRY,
clearly indicating that no distinction nor
distinguishing marks were ever made on these two
(2) items. The possibility that the two (2) sachets of
shabu seized may have been mixed-up, wrongly
attributed either as evidence of the buy-bust or of
the illegal possession charge, or even substituted,
altered, or tampered, either by accident or
otherwise, cannot be ruled out, notably because the
two (2) items have a similar description, the same
size, the same quantity with the same packaging.
As a result of which, the poseur-buyer/seizing
officer (PO3 Serohijos) could not identify in open
court “which is which” when asked by Prosecutor
Cristobal to pick-out which among the two (2)
sachets was the one that Accused allegedly sold to
him. Moreover, the name of the recording officer, PO2
Macua, is nowhere in said document, which is signed
instead by PO3 Serohijos when in truth and in fact, it was
PO2 Macua who made the markings on the items and he
was also the one who made its entry into the seizure
receipt. More importantly, the document would not prove
that there was a proper turn-over by the seizing officer
(PO3 Serohijos) to the recorder/custodian (PO2 Macua). In
fact, this document [Seizure and Confiscation Receipt ]
would establish the fact that there was only one
inventory and marking conducted, and it is clear
that this inventory and marking was inclusive of
whatever items were seized during the buy-bust
and the subsequent body-search. Regardless, this
inventory should be discredited as it is unreliable.
This alone should warrant the dismissal of the
instant charges against the Accused.
18
(2) Similarly, the document titled “COMPLIANCE ON
PHYSICAL INVENTORY AFTER SEARCH” is not a
truthful, accurate and reliable record of the
custodial movements of the two (2) sachets of
shabu simply because both items were recorded as
one (1) single entry in this document despite the
fact that each item came into the custodial chain at
different points in time. The shabu from the buy-bust
(and the marked-money) should have been recorded in a
separate turn-over sheet as this item entered the chain of
custody much ahead of the rest of the items. On close
scrutiny of this document, it is clear that, again, the
possibility that the two (2) sachets of shabu seized may
have been mixed-up, wrongly attributed either as evidence
of the buy-bust or of the illegal possession charge, or even
substituted, altered, or tampered, either by inadvertence or
otherwise, cannot be ruled out, notably because the two
(2) items have a similar description, the same size,
the same quantity and the same packaging.
Moreover, the name of the recording officer, PO2 Macua, is
nowhere in said document, which further proves no proper
recording was made as to the handlers of the items seized.
The document would not prove that there was a proper
turn-over by the seizing officer (PO3 Serohijos) to the
recorder/custodian (PO2 Macua). In fact, this document
[Compliance on Physical Inventory After Search and
Seizure] would establish the fact that there was only one
inventory and marking conducted, and it is clear that this
inventory was inclusive of whatever items were seized
during the buy-bust and the subsequent body-search.
Regardless, this inventory should be discredited as it is
unreliable.
19
two (2) sachets/specimen examined, and later on
presented as evidence by the Prosecution.
20
the amendments made to Section 21 by Republic Act No.
10640. Section 21(1), as amended, now includes the
following proviso, thereby making it even more stringent
than as originally worded:
“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:
“In People v. Nandi, this court explained that four (4)
links “should be established in the chain of custody of the
confiscated item: first, the seizure and marking, if
practicable, of the illegal drug recovered from the accused
by the apprehending officer; second, the turnover of the
illegal drug seized by the apprehending officer to the
investigating officer; third, the turnover by the
investigating officer of the illegal drug to the forensic
chemist for laboratory examination; and fourth, the
turnover and submission of the marked illegal drug seized
from the forensic chemist to the court.”
“In Nandi, where the prosecution failed to show how
the seized items were handled following the actual seizure
and, thereafter, turned over for examination, this court
held that the accused must be acquitted:
“After a closer look, the Court finds that the linkages in
the chain of custody of the subject item were not clearly
established. As can be gleaned from his aforequoted
testimony, PO1 Collado failed to provide informative
details on how the subject shabu was handled
immediately after the seizure. He just claimed that the
item was handed to him by the accused in the course of
the transaction and, thereafter, he handed it to the
investigator.
“Xxx. Xxx. Xxx.
“In this case, the defense points out that all that the
prosecution claimed, with respect to the handling of the
sachet supposedly handed by Misarez to PO1 Aure, was
that PO1 Aure supposedly marked it “RH-PA” at the scene
of the buy-bust operation.
“While the buy-bust operation team allegedly
conducted an inventory of the seized items, it is unclear if
this inventory was limited to those seized pursuant to the
enforcement of the search warrant (i.e., after the conduct
of the buy-bust operation) or was inclusive of whatever
items seized during the buy-bust operation. In any case,
21
this inventory was discredited as Holgado was acquitted
by the Regional Trial Court of the charge of illegal
possession of drug paraphernalia because the inventory
was found to be unreliable vis-a-vis the testimony of PO2
Castulo. The paraphernalia to which PO2 Castulo testified
to in court were different from those indicated in the
inventory supposedly made when the search warrant was
enforced.”[Emphases added; Citations in the original]
19
G.R. No. 171088, October 2, 2009.
22
In these instant cases, several chain links were broken in
the custody of the two (2) sachets of shabu as established
through the outright confession from the poseur-buyer and
seizing officer (PO3 Serohijos) when he testified during trial as
to his failure to mark either of the two (2) sachets of shabu.
Even the Prosecution’s documentary evidence support this implicit
admission of serious breaches in the handling of the drug items
seized, as threshed out in the preceding discussions [(1)Seizure and
Confiscation Receipt, (2)Compliance on Physical Inventory After
Search and Seizure, and (3)PNP Crime Laboratory Report No. D-151-
2010 ]. Moreover, no other testimony from the other police-witnesses
or documentary evidences would overturn such admitted breaches
that would attest to the integrity in the handling of subject shabu.
23
by the prosecutions failure to prove that the evidence
submitted for chemical analysis is the same as the one seized
from the accused suffice to warrant acquittal on reasonable
doubt. [Emphases, italics added; citations in the original]
24
Q: You were also confirm that fact that the lady or the manager or the
owner of the KTB bar did not prevent you from holding the Inventory
at the place were the accused was arrested, correct?
A: Yes, Sir did not prevent me.
Q: But no one prevented you from conducting an Inventory at the place
where the items was allegedly seized?
A: Yes.
Q: Yes, what, no one prevented you?
A: Yes, Sir no one prevented me.
Q: Of course you identified this Inventory Receipt and Compliance?
A: Yes, Sir.
Q: All these according to you were done at the?
A: At the office.
Q: At the office of Camp Dagohoy, correct?
A: Yes, Sir.” [Emphasis added]
xxx xxx
25
Q: You will also likewise confirm that in the other document Compliance
on Physical inventory after search and seizure in the two (2) medium
size sachet with white crystalline powder you would likewise confirm
that there is no marking or initial?
A: Yes, Sir.
Q: Mr. Witness according to you, you have been involved of many drug
operations, is it not that a Standard Operating Procedure pursuant
Section 21, Article 2 of Republic Act 9165 that there must be immediate
marking on the drugs which was allegedly seized, correct?
A: Yes, Sir.
Q: But in this particular two (2) documents you will agree with me that the
markings on the alleged items of sachets seized are not indicated?
WITNESS:
At that time, Sir?
ATTY. LIM:
Yes.
Q: Are not indicated?
A: Yes.
Q: So, in effect you have no documentary proof that there was indeed
marking immediate marking that was made on the alleged sachets that
you are talking no documentary proof?
A: No.
Q: No documentary proof?
A: Yes, Sir.
COURT:
As to the marking?
ATTY. LIM:
No documentary proof.
Q: Because when we talked about the inventory there are two (2)
important aspects in the inventory, correct?
A: Yes.
Q: There must be immediate marking on the drug or sachet recovered
after that there be a listing of all those items that were recovered,
correct?
A: Yes.
Q: And that you also aware of Section 21 a, Article 2 of Republic Act 9165?
A: Yes, Sir.
Q: And in that law it’s very clear there was immediate inventory on the
items seized, correct?
A: Yes.
Q: You also have attended seminars, correct?
A: Yes.
Q: In that seminar specifically the lecturers are saying all over again that
the marking must be done at the place where the said items were
allegedly seized, correct?
A: As much as possible, sir.”
xxx xxx
26
consequent body-search of the Accused, before turning it
over to the recording officer/custodian (PO2 Macua), already
created a cloud of doubt as to whether the said
identical/similar two (2) sachets of shabu that entered into
the chain were actually the ones submitted for laboratory
analysis and consequently tendered in evidence by the
Prosecution. Briefly stated, the Prosecution’s police-witnesses failed
to ensure or preserve the authenticity and the evidentiary value of
the items seized. On filing these instant cases, therefore, the officers
merely made an insinuation with regards the sachets of shabu used
in evidence of the crimes charged as aptly stated in De La Cruz,21 a
case similarly involving a buy-bust, wherein the Supreme Court ruled:
27
of the accused or the person/s from whom such items
were confiscated and/or seized, or his/her representative
or counsel, with an elected public official and a
representative of the National Prosecution Service or the
media who shall be required to sign the copies of the
inventory and be given a copy thereof: Provided, That the
physical inventory and photograph shall be conducted at
the place where the search warrant is served; or at the
nearest police station or at the nearest office of the
apprehending officer/team, whichever is practicable, in
case of warrantless seizures: Provided, finally, That
noncompliance of these requirements under justifiable
grounds, as long as the integrity and the evidentiary value
of the seized items are properly preserved by the
apprehending officer/team, shall not render void and
invalid such seizures and custody over said items.
“x x x
“(3) A certification of the forensic laboratory
examination results, which shall be done by the forensic
laboratory examiner, shall be issued immediately upon the
receipt of the subject item/s: Provided, That when the
volume of dangerous drugs, plant sources of dangerous
drugs, and controlled precursors and essential chemicals
does not allow the completion of testing within the time
frame, a partial laboratory examination report shall be
provisionally issued stating therein the quantities of
dangerous drugs still to be examined by the forensic
laboratory: Provided, however, That a final certification
shall be issued immediately upon completion of the said
examination and certification;
“x x x.” [Italics, emphases added]
22
2010 Edition, published by the PNP Anti-Illegal Drugs Special Operations Task Force.
28
presence of required witnesses, as stipulated in Section 21,
Art II, RA 9165, as amended by RA 10640.
“2.35 The Seizing Officer must mark the evidence with his
initials indicating therein the date, time and place where the
evidence was found/recovered or seized.”
xxx xxx xxx
“2.38 In every negation operation, a “Seizing Officer”
shall be designated who would be responsible for the
inventory and initial custody of all drug and non-drug
evidence confiscated during the anti-illegal drugs operations.
All these would later be turned over to the Investigation Officer
or any member of the apprehending team, and submitted to
the PDEA Laboratory Service or Crime Laboratory for further
examination and proper disposition.
“2.39 xxx.
“a. Drug Evidence.
“1) Upon seizure or confiscation of illegal drugs or
CPECs, laboratory equipment, apparatus and
paraphernalia, the operating Unit’s Seizing
Officer/Inventory Officer must conduct the physical
inventory, markings and photograph the same in the
place of operationin the presence of:
“(a) The suspect/s or the person/s from whom such
items were confiscated and/or seized or his/ her
representative or counsel;
“(b) With an elected Public Official; and
“(c) Any representatives from the Department of
Justice or Media who shall affix their signatures
and who shall be given copies of the inventory.”
[Emphases supplied]
23
Id. 2010 AIDSOTF.
29
“3) An acknowledgement receipt shall be issued by the
person receiving the evidence. Such receipt shall
form part of the case folder of the transmitting Unit.
“4) The Seizing Officer shall accomplish the Chain of
Custody Form and with it, submits the evidence to
the PNP Crime Laboratory for examination.”
[Emphases, italics supplied]
All told, the identities of the corpus delicti in these instant cases
were not proven beyond reasonable doubt by the Prosecution.
III.
24
Supra note 21, G.R. No. 185717.
25
G.R. No. 199901, Oct. 9, 2013; also People v. Polizon, G.R. No. 84917, Sept. 18, 1992, 214 SCRA 56.
26
G.R. No. 144639, September 12, 2003.
30
“Since no presumption of regularity may be
invoked by an officer to justify an encroachment of
rights secured by the Constitution, xxx, a strict
interpretation of the constitutional, statutory and
procedural rules authorizing search and seizure is
required and strict compliance therewith is
demanded.” [Emphasis ours]
27
People vs. Dulay, 423 SCRA 652.
28
People vs. Ong, et al., 484 SCRA 470, 484-486 G.R. No. 137348, June 21, 2004; People vs. Kimura, et al.
428 SCRA 51, G. R. No. 130805, April 27, 2004; Zarraga vs. People, 484 SCRA 647, 650, March 14, 2006;
People vs. Arsenio Vergara Valdez, G.R. No. 170180, November 23, 2007; People vs. Salvador Santos, Jr.
Y Salvador, G.R. No. 175593, October 17, 2007; People vs. Allan Nazareno Y Caburatan, G.R. No.
174771, September 11, 2007; People vs. Gerardo Orteza , G.R. No. 173051, July 31, 2007; People vs.
Omar Akmad, Et al., CA-G.R. CR No. 02732, April 14, 2008; People vs. Randy Cabalfin Y Aquines And
Solomon Tagle Y Alarde, CA-G.R. CR No. 30302, January 22, 2008 and People vs. Ting Hadjirul Y Mudjah,
CA G.R. CR No. 02266, January 16, 2008.
31
protected rights of the individual. It is the duty of the
courts to preserve the purity of their own temple from the
prostitution of the criminal law through lawless
enforcement. Courts could 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.” (People vs. Ong, Et al., G.R. No. 137348,
June 21, 2004)
“xxx. The government’s drive against illegal drugs
deserves everybody’s support. But it is precisely when the
government’s purposes are beneficent that we should be
most on our guard to protect these rights. As Justice
Brandeis warned long ago, ‘the greatest dangers to liberty
lurk in the insidious encroachment by men of zeal, well
meaning but without understanding,’ Our desire to stamp
out criminality cannot be achieved at the expense of
Constitutional rights, x x x.” (People vs. Pedronan, 404
SCRA 183, 192)
IV.
32
this burden, the Accused need not even offer evidence in his behalf.
As held by the Supreme Court in People v. Comesario:30
30
G.R. No. 127811, April 29, 1999.
33
substitute for the quantum of evidence that is required to
prove his guilt beyond reasonable doubt.
Accused-appellant should not be punished for the
failure of the prosecution to dispose of its burden to
overcome the constitutional presumption of innocence
and to establish his guilt of the accused beyond
reasonable doubt. This Court has always stood by the rule
that it is better to acquit a guilty person than to convict an
innocent one.” [Underscoring added]
31
G.R. No. 137599, October 8, 2001.
32
G.R. No. 125857, March 20, 2002.
34
from the weakness of the evidence for the defense. Unless
it discharges the burden of proving the guilt of the accused
beyond reasonable doubt, the latter need not even offer
evidence in his behalf. Thus, when the guilt of the accused
has not been proven with moral certainty, such as the case
at bar, it is a policy of long standing that the presumption
of innocence of the accused must be favored and his
exoneration be granted as a matter of right.
The presumption of innocence of an accused is a
substantial part of the law founded upon a great principle
of justice that cannot be balanced out merely by
conjecture or by probability. The heavy burden of
overcoming this presumption rests on the prosecution, and
unless it succeeds in proving by satisfactory evidence the
guilt of the accused, the constitutional mandate of
innocence prevails.” [Emphases added]
CONCLUSION
PRAYER
35
City of Tagbilaran, August 26, 2016.
Copy Furnished:
36