BUYBUST JURISPRUDENCE

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

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

ALI, Accused-Appellant.

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."

G.R. No. 227394, June 06, 2018

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. NORJANA SOOD Y

AMATONDIN, Accused-Appellant.

DECISION

The Court again takes this opportunity to emphasize that the presence of the three
witnesses required by Section 21 is precisely to protect and guard against the
pernicious practice of policemen in planting evidence. Without the insulating presence
of the three witnesses 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 seized drugs that were evidence of the corpus delicti, and thus adversely affected
the trustworthiness of the incrimination of accused-appellant.21

FIRST DIVISION [ G.R. No. 237802, March 18, 2019 ] PEOPLE OF

THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. MACMAC
BANGCOLA Y MAKI, DEFENDANT-APPELLANT. DECISION.
GESMUNDO, J.:

In every criminal prosecution, the Constitution affords the accused presumption

of innocence until his or her guilt for the crime charged is proven beyond
reasonable doubt.[27] The prosecution bears the burden of overcoming this
presumption and proving the liability of the accused by presenting evidence
which shows that all the elements of the crime charged are present.[28]

To sustain a conviction for the offense of illegal sale of dangerous drugs, the
necessary elements are: (1) the identity of the buyer and the seller, the object and
the consideration; and (2) the delivery of the thing sold and the payment.[29] It
is essential that a transaction or sale be proved to have actually taken place
coupled with the presentation in court of evidence of the corpus delicti.
[30] The corpus delicti in cases involving dangerous drugs is the presentation of
the dangerous drug itself and its offer as evidence.

On the other hand, to successfully prosecute a case of illegal possession of

dangerous drugs, the following elements must be established: (1) the accused is
in possession of an item or object which is identified to be a prohibited drug; (2)
such possession is not authorized by law; and (3) the accused freely and
consciously possessed the drug.[31]

Apart from showing the presence of the above-cited elements, it is of utmost

importance to likewise establish with moral certainty the identity of the
confiscated drug.[32] To remove any doubt or uncertainty on the identity and
integrity of the seized drug, it is imperative to show that the substance illegally
possessed and sold by the accused is the same substance offered and identified in
court.[33] This requirement is known as the chain of custody rule under R.A. No.
9165 created to safeguard doubts concerning the identity of the seized drugs.[34]

Chain of custody means the duly recorded, authorized movements, and custody
of the seized drugs at each state, from the moment of confiscation to the receipt
in the forensic laboratory for examination until it is presented to the court.
[35] Under Sec. 21 of R.A. No. 9165:
(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.[36]
The chain of custody rule was further expounded under Sec. 21 (a), Art. II of the
Implementing Rules and Regulations (IRR) of R.A. No. 9165:
a) The apprehending officer/team having initial custody and control of the drugs shall,
immediately after seizure and confiscation, physically inventory and photograph the
same in the presence of the accused or the person/s from whom such items were
confiscated and/or seized, or his/her representative or counsel, a representative from
the media and the Department of Justice (DOJ), and any elected public official who
shall be required to sign the copies of the inventory and be given a copy
thereof: Provided, that the physical inventory and photograph shall be conducted at the
place where the search warrant is served; or at the nearest police station or at the
nearest office of the apprehending officer/team, whichever is practicable, in case of
warrantless seizures; Provided, further that non-compliance with these requirements
under justifiable grounds, as long as the integrity and the evidentiary value of the seized
items are properly preserved by the apprehending officer/team, shall not render void
and invalid such seizures of and custody over said items [.]
Sec. 21 of R.A. No. 9165 requires the apprehending team, after seizure and
confiscation, to immediately conduct a physical inventory of, and photograph, the
seized drugs in the presence of (a) the accused or the persons from whom such
items were confiscated and/or seized, or his/her representative or counsel, (b) a
representative from the media (c) a representative from the DOJ, and (d) an
elected public official. These four witnesses must all sign the copies of the
inventory and obtain a copy thereof.

It is worthy to note that R.A. No. 10640,[37] which amended Sec. 21 of R.A. No.
9165 and became effective on July 23, 2014,[38] requires only three witnesses to
be present during the inventory and taking of photographs of the seized evidence,
namely: a) the accused or the persons from whom such items were confiscated
and/or seized, or his/her representative or counsel, (b) an elected public official,
and (c) a representative of the National Prosecution Service or the media.

In the instant case, since the offenses charged were committed on June 20, 2014,
the provisions of Sec. 21 of R.A. No. 9165 and its IRR shall apply. Thus, the four
witnesses mandated by law to be present during the inventory and taking of
photographs must be complied with.

The apprehending team's failure to strictly comply with Sec. 21 of R.A. No. 9165
is fatal to the prosecution's case.

In this case, no representative from the DOJ was present at the time of the
physical inventory, marking, and taking of photographs of the evidence seized
from appellant at the barangay hall. SPO1 Basang testified that only Acuña and
Barquilla, together with appellant and other police operatives, were present at the
time of its marking at the Barangay Hall of Tumana.
CROSS-EXAMINATION
Atty. Galit:
xxxx
Mr. Witness, you said that you conducted an inventory of evidence in the Barangay Hall,
Q:
who were present while you were conducting the inventory of evidence?
Councilor Ronnie Acuña, [m]edia [representative, the suspect, myself, and other fellow
A:
operatives, Sir.[39]
Nevertheless, there is a saving clause under the IRR of R.A. 9165 in case of non-
compliance with the chain of custody rule. This saving clause, however, applies
only (1) where the prosecution recognized the procedural lapses, and
thereafter explained the cited justifiable grounds, and (2) when the
prosecution established that the integrity and evidentiary value of the
evidence seized had been preserved. The prosecution, thus, loses the
benefit of invoking the presumption of regularity and bears the burden of proving
— with moral certainty — that the illegal drug presented in court is the same drug
that was confiscated from the accused during his arrest.[40]

In this case, however, the prosecution offered no justification as to the

absence of a representative from the DOJ. The prosecution did not even
recognize their procedural lapses or give any justifiable explanation on why the
apprehending team did not conduct the inventory, marking, and taking of
photographs of the seized evidence in the presence of a DOJ representative.

As a rule, strict compliance with the prescribed procedure is required because of

the illegal drug's unique characteristic rendering it indistinct, not readily
identifiable, and easily open to tampering, alteration or substitution either by
accident or otherwise.[41] The presence of the four witnesses mandated by Sec.
21, Art. II of R.A. No. 9165 safeguards the accused from any unlawful tampering
of the evidence against him.

Moreover, in the case at bar, the inventory, marking, and taking of photographs
of the confiscated items were not conducted immediately at the place of arrest
but at the Barangay Hall of Tumana. SPO1 Basang explained that their team
leader decided to conduct the inventory at the barangay due to the dark lighting
conditions at the place of arrest and because appellant's relatives were causing a
commotion at the time.

The IRR of R.A. No. 9165 enumerates alternative places for conducting the
inventory of the seized evidence, that is, at the nearest police station or nearest
office of the apprehending officer/team. However, the requirement of having the
required witnesses to be physically present not only during the inventory of the
seized evidence but also at the time or near the place of apprehension, is
indispensable. In People v. Tomawis,[42] the Court elucidated on the rationale of
the law in mandating the presence of the required witnesses at the time or near
the place of apprehension:
x x x x. 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.[43]
Here, SPO1 Basang testified that Acuña and Barquilla were present only at the
barangay hall, where the other pieces of evidence confiscated from appellant were
inventoried, marked, and photographed. They were mere witnesses to the
inventory of the seized items. They had no knowledge whether the items seized
were in fact confiscated from appellant or even any prior knowledge on the buy-
bust operation conducted by the team of P/Insp. Flores and SPO1 Basang.

The practice of police operatives of not bringing to the intended place of arrest
the witnesses required by law does not achieve the purpose of the law in having
these witnesses prevent or insulate against the planting of drugs. They must not
merely be called to witness the inventory, marking, and taking of photographs of
the confiscated evidence.[44]
Consequently, the signatures of Acuña and Barquilla on the inventory form are
rendered useless. The intent of the provisions of the law - to ensure the
prevention and elimination of any possibility of tampering, alteration, or
substitution, as well as the presentation in court of the drug that was confiscated
at the time of apprehension of the accused[45] - was not carried out in the instant
case. Indeed, it is as if there were no witnesses to the inventory and marking of
the evidence against the accused, which is a total disregard of the requirements of
Sec. 21, Art. II of R.A. No. 9165.

The links in the chain of custody were not properly established by the
prosecution.

Aside from the proper justification regarding the lack of witnesses in the
inventory and photography of the seized items, it is also required that the
prosecution prove the preservation of the integrity and evidentiary value of the
confiscated items. To establish this, the proper chain of custody of the seized
items must be shown. The Court explained in Mallillin v. People[46] how the
chain of custody or movement of the seized evidence should be maintained and
why this must be shown by evidence, viz:
As a method of authenticating evidence, the chain of custody rule requires that the
admission of an exhibit be preceded by evidence sufficient to support a finding that the
matter in question is what the proponent claims it to be. It would include testimony about
every link in the chain, from the moment the item was picked up to the time it is offered
into evidence, in such a way that every person who touched the exhibit would describe
how and from whom it was received, where it was and what happened to it while in the
witness' possession, the condition in which it was received and the condition in which it
was delivered to the next link in the chain. These witnesses would then describe the
precautions taken to ensure that there had been no change in the condition of the item
and no opportunity for someone not in the chain to have possession of the same.[47]
In People v. Kamad[48] and People v. Dahil, et al.,[49] the Court enumerated
the links that the prosecution must establish in the chain of custody in a buy-bust
situation to be as follows: first, the seizure and marking, if practicable, of the
illegal drug recovered from the accused by the apprehending officer; second, the
turnover of the illegal drug seized by the apprehending officer to the
investigating officer; third, the turnover by the investigating officer of the
illegal drug to the forensic chemist for laboratory examination; and fourth,
the turnover and submission of the marked illegal drug seized by the forensic
chemist to the court.

In the case at bench, aside from non-compliance with the mandatory rules in
inventory and photography of the seized items, the Court finds that the second,
third, and fourth links in the chain of custody were not clearly established by the
prosecution.

Second link

The second link in the chain of custody is the transfer of the seized drugs by the
apprehending officer to the investigating officer.[50] The investigating officer
shall conduct the proper investigation and prepare the necessary documents for
the proper transfer of the evidence to the police crime laboratory for testing.
[51] Thus, the investigating officer's possession of the seized drugs must be
documented and established.

Here, the name of the investigator was neither identified nor mentioned by the
prosecution. Glaringly, the Chain of Custody Form[52] did not reflect the
investigating officer's name and signature. However, SPO1 Basang testified that
there was an alleged investigator in the case, to wit:
DIRECT EXAMINATION
ACP Songco
xxxx
Q: What did you do next, if any Mr. Witness, after you prepared the Chain of Custody Form?
Our Investigator prepared a request for laboratory examination on the seized evidence and a
A: request for drug test on the arrested person to the PNP Crime Laboratory for the evidence I
recovered from the person I arrested.[53]
Upon review of the records, it was P/Insp. Flores who prepared the requests for
laboratory examination. Ergo, SPO1 Basang was possibly referring to P/Insp.
Flores as the investigator of the case. However, the Court cannot correctly
determine whether there was an actual turnover of the seized items by SPO1
Basang to P/Insp. Flores as the investigating officer when the latter conducted his
investigation. The Court is thus forced to resort to guesswork as to the handling
of the seized evidence. It is improbable for an investigator in a drug-related case
to effectively and properly perform his work, and to accomplish the necessary
documents for the transfer of evidence, without having custody of the seized
items.[54]

Assuming that P/Insp. Flores did take possession of the seized drug as the
investigating officer, then it is highly contrary and fatal to SPO1 Basang's
testimony that he kept the seized items from the time of appellant's arrest until
the turnover of the said items to the forensic chemist. As held in People v.
Remigio,[55] the apprehending officer's act of keeping the seized evidence until
its transfer to the forensic chemist and his failure to transfer the seized evidence
to the investigating officer are considered breaks in the chain of custody. In any
case, it is clear that the second link, which is the turnover by the apprehending
officer of the illegal drugs to the investigating officer, was entirely lacking and the
prosecution did not even bother to explain its deficiency.

Third Link

The third link in the chain of custody is the delivery by the investigating officer of
the illegal drug to the forensic chemist. Once the seized drugs arrive at the
forensic laboratory, it will be the laboratory technician who will test and verify
the nature of the substance.[56]

In this case, SPO1 Basang testified that he was the one who personally delivered
the seized items to PCI Libres. However, the evidence presented by the
prosecution does not actually identify who received the drug from SPO1 Basang.
In the request for laboratory examination, there was no name indicated therein
as to who received the confiscated drugs from SPO1 Basang.[57] There was
likewise an absence of description as to the condition of the seized drugs when
PCI Libres received it, or the way it was handled while the drugs were in her
possession. The prosecution could have presented PCI Libres to clarify who
actually received the seized drugs in the forensic laboratory but it failed to do so.
This leaves the Court to conclude that there are serious doubts on the integrity
and evidentiary value of the seized evidence against the appellant in the third
link.

In People v. Beran,[58] there was also an irregularity in the third link. The police
officer, who both served as apprehending and investigating officer, claimed that
he personally took the drug to the laboratory for testing, but there was no
showing of who received the drug from him. The records therein also showed that
he submitted the sachet to the laboratory for testing only on the following day,
without explaining how he preserved his exclusive custody thereof overnight. All
those facts cast serious doubt that the integrity and evidentiary value of the seized
item were not fatally compromised. Hence, the accused therein was acquitted.

Fourth Link
The last link involves the submission of the seized drugs by the forensic chemist
to the court when presented as evidence in the criminal case.[59] In this case,
there was no testimonial or documentary evidence on how PCI Libres kept the
seized items while it was in her custody until it was presented in court. PCI Libres
did not testify in court but the parties entered into general stipulations of her
testimony. The stipulations are replete of information regarding the condition of
the seized item while in her custody or that there was no opportunity for someone
not in the chain to have possession thereof. The prosecution could have
presented the forensic chemist in order to testify on the safekeeping of the drugs
but, again, failed to do so.

Similarly, in People v. Gutierrez,[60] there were also inadequate stipulations as

to the testimony of the forensic chemist. In said case, no explanation was given
regarding the chemist's custody in the interim - from the time it was turned over
by the investigator for laboratory examination. The records also failed to show
what happened to the allegedly seized shabu between the turnover by the chemist
to the investigator and its presentation in court. Thus, since no precautions were
taken to ensure that there was no change in the condition of the object and no
opportunity for someone not in the chain to have possession thereof, the accused
therein was acquitted.

Further, the entire procedure of the chain of custody was not even discussed by
SPO1 Basang, the arresting officer, in his affidavits of arrest. In People v. Lim,
[61] the Court declared that in order to weed out early on from the courts' already
congested docket any orchestrated or poorly built-up drug-related cases, the
following should be enforced as a mandatory policy with regard to drug-related
cases, to wit:
1. In the sworn statements/affidavits, the apprehending/seizing officers must state their
compliance with the requirements of Section 21 (1) of R.A. No. 9165, as amended, and
its IRR.

2. In case of non-observance of the provision, the apprehending/seizing officers must

state the justification or explanation therefor as well as the steps they have taken in
order to preserve the integrity and evidentiary value of the seized/confiscated items.

3. If there is no justification or explanation expressly declared in the sworn statements

or affidavits, the investigating fiscal must not immediately file the case before the court.
Instead, he or she must refer the case for further preliminary investigation in order to
determine the (non) existence of probable cause.

4. If the investigating fiscal filed the case despite such absence, the court may exercise
its discretion to either refuse to issue a commitment order (or warrant of arrest) or
dismiss the case outright for lack of probable cause in accordance with Section 5, Rule
112, Rules of Court.[62]
In view of the foregoing, the Court concludes that there was no proper inventory,
marking, and taking of photographs of the seized items. Moreover, the
prosecution gravely failed to establish all the links in the chain of custody to
establish the integrity and evidentiary value of the seized items. Given the
procedural lapses, serious uncertainty hangs over the identification of the corpus
delicti which the prosecution introduced into evidence. In effect, the prosecution
failed to fully prove the elements of the crime charged, creating a reasonable
doubt on the criminal liability of the accused.[63]

G.R. No. 205787

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee

vs.
PABLO ARPOSEPLE y SANCHEZ and JHUNREL SULOGAOL y DATU, Accused-Appellants

DECISION

MARTIRES, J.:

This resolves the appeal of Pablo Arposeple y Sanchez (Arposeple) and Jhunrel Sulogaol y

Datu  (Sulogaol) from the 3 October 2011 Decision  of the Court of Appeals (CA), in CA G.R. CR-HC
1 2

No. 00865 which affirmed, but with modification as to the fine imposed in Criminal Case No. 12853,
the 20 November 2007 Omnibus Decision  of the Regional Trial Court (RTC) in Criminal Case Nos.
3

12852 to 12854.

THE FACTS

Arposeple and Sulogaol were both charged with three counts of violation of certain provisions of
R.A. No. 9165 before the RTC of Tagbilaran City, Bohol, viz:

CRIM. CASE NO. 12852

(Viol. of Sec. 5, Art. II, R.A. 9165)

G.R. No. 205787

That on or about the 21st day of September 2005, in the City of Tagbilaran, Philippines, and within
the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating
together, and mutually helping one another, did then and there wilfully, unlawfully, feloniously, and
knowingly, without any legal purpose, sell, transfer, deliver and give away One (1) transparent
cellophane sachet containing small amount of white powdered substance commonly known
as shabu powder which could no longer be measured in terms of weight, but could not be more than
0.01 gram, for and in consideration of the amount of Five Hundred Pesos (₱500.00) Philippine
currency, the accused knowing fully well that the above-mentioned substance which contains
METHAMPHETAMINE HYDROCHLORIDE is a dangerous drug and that they did not have any
lawful authority, permit or license to sell the same, to the damage and prejudice of the Republic of
the Philippines.

Acts committed contrary to the provisions of Section 5, Article II of Republic Act No. 9165 or the
Comprehensive Dangerous Drugs Act of 2002, repealing R.A. 6425, as amended. 4

CRIM. CASE N0.12853

(Viol. of Sec. 11, Art. II, R.A. 9165)

That on or about the 21st day of September 2005, in the City of Tagbilaran, Philippines, and within
the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating
together, and mutually helping one another, did then and there wilfully, unlawfully, feloniously, and
knowingly have in their possession, custody, and control two (2) pcs. empty transparent cellophane
sachets containing suspected shabu leftover which could no longer be measured in terms of weight,
but could not be more than 0.01 gram, the accused knowing fully well that the above-mentioned
substance which contains Methamphetamine Hydrochloride is a dangerous drug and that they did
not have any lawful authority, permit or license to possess the same, to the damage and prejudice of
the Republic of the Philippines.

Acts committed contrary to the provisions of Section 11, Article II of Republic Act No. 9165 or the
Comprehensive Dangerous Drugs Act of 2002, repealing R.A. 6425, as amended. 5

CRIM. CASE NO. 12854

(Viol. of Sec. 12, Art. II, R.A. 9165)

That on or about the 21st day of September 2005, in the City of Tagbilaran, Philippines, and within
the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating
together, and mutually helping one another, did then and there wilfully, unlawfully, feloniously and
knowingly have in their possession, custody and control to wit: two (2) pcs. rolled aluminum foil used
as tooter; two (2) pcs. folded aluminum foil; two (2) pcs. disposable lighters; one (1) pc. bamboo clip;
and one (1) pc. half blade, the accused knowing fully well that the above- mentioned items are the
instruments, apparatus or paraphernalia fit or intended for smoking, consuming, administering,
injecting, ingesting or introducing dangerous drug into the body, and that he did not have any lawful
authority, permit or license to possess the same, to the damage and prejudice of the Republic of the
Philippines.

Acts committed contrary to the provisions of Section 12, Article II of Republic Act No. 9165 or the
Comprehensive Dangerous Drugs Act of 2002, repealing R.A. No. 6425, as amended. 6

When arraigned, both appellants pleaded not guilty; thus, the consolidated trial of these cases took
place.

The Version of the Prosecution

To prove its cases, the prosecution presented the testimonies of the following: Police
Superintendent (P/Supt.) Victoria C. de Guzman (De Guzman), Police Officer 2 (PO2) Jay E.
Ramos (Ramos), Police Officer I (PO1) Earl U. Tabuelog (Tabuelog), Police
Inspector (P/Insp.) Miguel Jimenez (Jimenez), and Barangay Kagawad Mary Jane Ruiz (Ruiz).
At around 3:00 a.m. on 21 September 2005, Jimenez, who was the Assistant City Drug Enforcement
Officer, held a briefing at his office on a buy-bust operation to be carried out at Ubujan District,
Tagbilaran City. The briefing, with the appellants as the subjects of the buy-bust operation, was
attended by the buy-bust team (team) composed of PO3 Rolando Bagotchay (Bagotchay), PO3
Jonathan Bafiocia, PO3 Rodante Sanchez, PO3 Norman Brunidor (Brunidor), PO2 Jay Tizon,
Ramos, Tabuelog, PO2 Ruben Baculi, who was the representative of the Criminal Investigation and
Detection Group, and the informant. Jimenez gave ₱500.00  to Ramos, the poseurbuyer, while
7

Bagotchay would be the recorder and property custodian. Jimenez instructed Ramos to take off his
cap as the pre-arranged signal that the transaction had been consummated. 8

After the briefing, the team proceeded to their designated area, i.e., the Monastery of the Holy
Spirit (monastery) located at CPG North Avenue, Ubujan District, Tagbilaran City. Ramos and the
informant proceeded in front of the monastery while the rest of the team positioned themselves at
the nearby GH Motors. 9

Ramos instructed the asset to inform the appellants that he had a friend who wanted to buy shabu.
After the asset returned from a house in front of the monastery, the appellants arrived. The asset
introduced Ramos to the appellants who at first were hesitant to sell him shabu. Sulogaol told
Arposeple, "Ato lang ni hatagan bay,"  to which the latter replied "sige hatagan na lang nato."  With
10 11

the agreement to sell shabu, Ramos gave the ₱500.00 marked money to Arposeple, while Sulogaol
took one transparent sachet from his pocket and handed this to Arposeple who in turn gave it to
Ramos. With the sale consummated, Ramos took off his cap but, as the team approached, the
appellants ran in opposite directions. 12

Ramos chased Arposeple until they reached a house fronting the monastery. Ramos got hold of
Arposeple's shirt but as they grappled they found themselves inside the house. With the aid of
Brunidor and Bagotchay, Ramos was able to handcuff Arposeple. A body search on Arposeple
yielded a playing card case  containing the following: one piece sachet with
13

suspected shabu leftover;  a hundred peso bill;  two pieces empty transparent cellophane sachets
14 15

containing suspected shabu leftover;  two pieces of aluminum foil used as tooters;  two pieces
16 17

folded aluminum foil  two pieces disposable 1ighters;  one piece bamboo c1ip;  an d one piece half-
18 19 20

blade.  The marked five-hundred-peso  bill was found in Arposeple's left pocket. Ramos informed
21 22

Arposeple of his constitutional rights.23

Tabuelog caught Sulogaol after a brief chase. The body search on Sulogaol yielded negative.
Tabuelog likewise informed Sulogaol of his constitutional rights. 24

Ramos turned over the seized items to Bagotchay who filled out the certificate of inventory.  The
25

inventory was witnessed by the appellants and by Barangay Kagawads Ruiz and Felixia Ligue, and
Zacarias Castro and Willy Maestrado, who acted as representatives of the Department of
Justice (DOJ) and the media, respectively.  Except for the appellants who refused to sign the
26

certificate of inventory, the other witnesses did. 27

The appellants were brought to the Tagbilaran Police Station for proper disposition  while Ramos
28

and Tabuelog executed their respective affidavits29 in relation to what had happened during the
buy-bust operation.30

At 3:05 p.m. on the same day, the Philippine Provincial Crime Laboratory Office of Camp Francisco
Dagohoy, Tagbilaran City (laboratory), received a request  for the laboratory examination of the
31

following: one piece transparent cellophane sachet (labelled PA/JS-09-21-01 YB); two pieces empty
transparent cellophane sachets (labelled PA/JS-09- 21-05-02 YB and PNJS-09-21-05-03 YB); two
pieces aluminum foil used as tooters (labelled PA/JS-09-21-05-04 YB and PA/JS-09-21-05-05); and
two pieces aluminum foil (labelled PA/JS-09-21-05-06 YB and PA/JS 09- 21-05-07 YB). These were
marked by De Guzman, the forensic chemical officer of the laboratory as specimens "A" "B" and "B-
1 "· "C" and "C-1" "D" and "E," respectively. On 22 September 2005, after the laboratory
examination, De Guzman came up with Chemistry Report No. D-117-2005  stating that, except for
32

specimen "E" labelled as PA/JS 09-21-05-06 YB, all the specimens were positive for the presence of
methamphetamine hydrochloride. 33

It was also on 21 September 2005 that the laboratory received the request  for drug/urine test on the
34

appellants to determine whether they had used any prohibited drugs. The screening laboratory test
and the confirmatory examination conducted the following day were done in the presence of the
appellants. The screening tests on both appellants yielded positive results for the presence of
methamphetamine hydrochloride and negative for marijuana. De Guzman's findings were contained
in Chemistry Report Nos. DT-242-2005  and DT-243-2005  for Arposeple and Sulogaol,
35 36

respectively. The confirmatory tests on the urine samples of the appellants likewise gave positive
results for the presence of methamphetamine hydrochloride as evinced in Chemistry Report Nos.
DT-242A-2005  and DT-243A-2005  for Arposeple and Sulogaol, respectively.
37 38 39

The Version of the Defense

The defense presented their version of what happened in the morning of 21 September 2005
through Myra Tara (Tara), Joan Cortes Bohol (Bohol), Arposeple and Sulogaol.

Tara testified that at about 4:30 a.m. on 21 September 2005, while she was sleeping at the house
she was renting with Cory Jane Rama (Rama), she was awakened by the appellants who wanted to
borrow ₱200.00 to pay for the van that they hired to come back from Tubigon, Bohol. She handed
the ₱200.00 to Sulogaol, and while peeping from the window, she saw Sulogaol hand the ₱200.00 to
the driver of the van parked in front of the house.
40

Arposeple and Sulogaol proceeded to the room the former used to rent but since its present
occupant, Ondoy, had a visitor, Arposeple and Sulogaol went back to Tara's place and requested
that she allow them to play tong-its inside her house while waiting for daylight. She acceded and
allowed them to use her playing cards. 41

While Tara, together with Rama, Jessa, and Susan, was sleeping inside the room, she was
awakened by the sound of a strong kick to the door of the house. Two persons barged in saying,
"We are policemen! Do not move!" while pointing their guns at Arposeple and Sulogaol. The two
men grabbed Arposeple and Sulogaol, dragged them out of the house, and handcuffed them.
Arposeple and Sulogaol protested while they were being frisked but to no avail. Two other policemen
outside the house boarded Arposeple and Sulogaol into a parked police vehicle. 42

Bohol, Tara's landlady, testified that she knew Arposeple, he being her former boarder. Before
Arposeple's stay at her house, he stayed at an adjacent room which was occupied thereafter by
Ondoy Belly. At about 2:00 a.m. on 21 September 2005, she observed a passenger van parked
outside the house and saw Sulogaol hand money to its driver. At about 3:00 a.m., she heard
banging on the door of the other house. Thinking nothing of the commotion, she went back to sleep. 43

When Bohol woke up at about 6:00 a.m., she saw a vehicle and four uniformed policemen outside.
She saw Arposeple and Sulogaol who, while resisting the policemen's arrest, claimed that they did
not commit any crime. The policemen told Arposeple and Sulogaol to explain themselves at the
police station. Arposeple, who was in handcuffs, and Sulogaol were made to board a vehicle. 44
After the vehicle had gone, Bohol went to Tara's house and saw Tara, Jessa, Mylene Amora, and
Tara's visitor seated on the bed and trembling. The house was in disarray and Tara's playing cards
were scattered on the floor and on the bed. They told her that Arposeple and Sulogaol were playing
cards with them when the policemen came; that Arposeple had refused to go with the policemen
claiming he did not commit any crime. 45

In his defense, Arposeple testified that in the early dawn of 21 September 2005, he went to Tara's
house to borrow money to pay for the car rental. He and Sulogaol had come from Cebu and were on
their way to Tubigon-Tagbilaran, Bohol, when they rented the van. He chose to pass by Tara to
borrow ₱l00.00 because she was his friend. After paying for the rental, he and Sulogaol stayed at
Tara's place and played with her cards. Tara took care of her child while Susan, Jessa, and Cory
were sleeping. 46

At about 3:00 a.m., three men kicked the door, entered the house, and pointed their guns at him and
Sulogaol. He asked what crime they had committed but Ramos told him to produce the shabu. He
told PO2 Ramos he had nothing to show because he had no shabu. Ramos frisked him and
Sulogaol while Ramos' companions searched around. Ramos found nothing on him and on
Sulogaol. 47

After a while, other policemen arrived and, together with Ramos, frisked him and Sulogaol. While he
was in handcuffs, Ramos frisked him again. 48

Ramos and his two companions then left and soon after returned with Jimenez. He and Sulogaol
were again frisked and ordered to remove their clothes and to lower their underwear to their knees.
Nothing was found in their person. Ramos got shabu, money, tin foil, and a lighter from his pocket
and placed these on the table. Arposeple protested Ramos' act of planting evidence but Ramos told
him to explain himself at the police station. He was made to board a police car while Sulogaol was
being investigated by the policemen. He told Tara that she and Sulogaol would be his witnesses as
they had seen the policemen plant evidence. 49

Arposeple was brought to the police station with Sulogaol where he complained that the policemen
had planted evidence against him. Ramos told him that the items were not his (Ramos) but belonged
to the CIDG. Arposeple did not request a lawyer when he was jailed because he has no relatives in
Bohol. He was investigated by the chief of police and other policemen. He did not sign the inventory
of the items allegedly taken from him because there was actually nothing found on him. Because he
and Sulogaol were not willing to have their pictures taken at the police station, he was hit at the back
of his head and slapped by a policeman while Sulogaol was hit on the stomach by Ramos. 50

Sulogaol testified that in the early dawn of 21 September 2005, he and Arposeple were at Ubujan
District, Tagbilaran City, to borrow ₱l00.00 from Tara, Arposeple's friend, to pay for their v-hire fare.
After paying for the fare, Arposeple and Sulogaol decided to stay at Tara's place to play cards unti1
morning. 51

While he and Arposeple were playing cards, two policemen in civilian clothes kicked the door and
said they were conducting a raid. The policemen handcuffed Arposeple while he was picking up the
scattered cards. The policemen pointed their guns at them. When Tara asked the policemen why
Arposeple was handcuffed, they said that Arposeple sold shabu. Sulogaol and Arposeple were
frisked twice by the policemen but nothing was found on them. Sulogaol saw Ramos put a plastic
sachet containing shabu on the table. He told Ramos not to plant evidence against them since
nothing was found on them. Two of the policemen left the room while the other two stayed behind to
watch over him and Arposeple. 52
After two hours, the two policemen who had earlier left returned with two barangay kagawads and a
representative from the media. He and Arposeple were frisked again. While Arposeple was being
boarded into the car, Jimenez told Sulogaol he would not be charged as long as he would testify
against Arposeple. When he declined the offer, he was also made to board the vehicle. At the police
station, he and Arposeple were made to sign a paper but when they refused, they were told to admit
owning the shabu and the piece of the foil. When they refused to be photographed with the items
that were allegedly seized, Arposeple was hit on the face while he was hit on the chest and struck
with a placard on his right leg.
53

The Ruling of the RTC

On 20 November 2007, the RTC rendered its decision54 in these cases, viz:

WHEREFORE, in Criminal Case No. 12852, the court finds accused Pablo Arposeple y Sanchez
and Jhunrel Sulogaol y Datu, guilty beyond reasonable doubt of the offense of Violation of Section 5,
Article II, of R.A. 9165, embraced in the afore-quoted information. There being no aggravating nor
mitigating circumstance adduced and proven at the trial, the said accused are each hereby
sentenced to the indivisible penalty of life imprisonment and to pay a fine of ₱300,000.00 Pesos,
with the accessory penalties of the law, and to pay the costs.

In Criminal Case No. 12853, the court finds accused Pablo Arposeple y Sanchez, guilty beyond
reasonable doubt of the offense of Violation of Section 11, Article II, of R.A. 9165, embraced in the
aforequoted information. There being no aggravating nor mitigating circumstance adduced and
proven at the trial, the said accused is hereby sentenced to the indeterminate penalty of
imprisonment of TWELVE (12) YEARS and ONE (1) DAY, as minimum, to FOURTEEN (14) YEARS,
as maximum, and to pay a fine of ₱200,000.00 Pesos, with the accessory penalties of the law, and
to pay the costs.

In Criminal Case No. 12854, the court finds accused Pablo Arposeple y Sanchez, guilty beyond
reasonable doubt of the offense of Violation of Section 12, Article II, of R.A. 9165, embraced in the
aforequoted information. There being no aggravating nor mitigating circumstance adduced and
proven at the trial, the said accused is hereby sentenced to the indeterminate penalty of
imprisonment of from SIX (6) MONTHS and ONE (1) DAY, as minimum, to FOUR (4) years, as
maximum, and to pay a fine of ₱25,000.00 Pesos, with the accessory penalties of the law, and to
pay the costs.

The charges against accused Jhunrel Sulogaol, under Criminal Case Nos. 12853 and 12854 are
hereby ordered dismissed and the said accused acquitted, for insufficiency of evidence.

Accused, being detention prisoners are hereby credited in full of the period of their preventive
imprisonment.

In compliance with Par. 4, Section 21 of R.A. 9165, the evidence in these cases consisting of one (1)
sachet of shabu, with an aggregate weight of 0.01 gram, and paraphernalia with Shabu leftovers are
hereby ordered confiscated, destroyed and/or burned, subject to the implementing guidelines of the
Dangerous Drugs Board as to the proper disposition and destruction of such item.

SO ORDERED. 55

The Ruling of the CA

Arguing that the essential elements of the crimes had not been established by the prosecution with
moral certainty, the appellants appealed before the CA, Cebu City. The CA, through its Nineteenth
Division,  however did not agree with the appellants and ruled that the trial court had the unique
56

opportunity, denied of appellate courts, to observe the witnesses and to note their demeanor,
conduct, and attitude under direct and cross-examination.  The CA held that the prosecution
57

witnesses categorically testified in court and positively identified the appellants, and that the buy-
bust operation was regularly conducted by the police.  Moreover, it declared that although the team
58

have not strictly complied with the requirements of the chain of custody, they had substantially
complied therewith, viz: Ramos turned over the seized items to Bagotchay; on the same day, the
items, which had been properly marked were turned over to the laboratory and received by PO2
Casagan; de Guzman made her own markings on the items; and the items were presented in court
by Ramos and de Guzman, who identified that the items were those seized from the buy-bust
operation where the appellants were arrested. 59

The CA held that the failure of the buy-bust team in complying with Section (Sec.) 21, R.A. No. 9165
did not render the items as inadmissible in evidence considering that what were essential and
necessary in drug cases were preserved by the arresting officers in compliance with the
requirements of the law. On the one hand, the non-presentation of the informant was ruled by the
CA as dispensable for the successful prosecution of the cases because his testimony will only be
corroborative and cumulative. 60

In compliance with Sec. 11(3), Article II of R.A. No. 9165, the CA found the need to modify in Crim.
Case No. 12853 the fine imposed by the RTC to Arposeple from ₱200,000.00 to ₱300,000.00. Thus,
the dispositive portion of the CA's decision reads:

WHEREFORE, in view of the foregoing, the instant appeal is DENIED. Accordingly, the assailed 20
November 2007 Decision of the Regional Trial Court (RTC), Branch 2 of Tagbilaran City, Bohol is
hereby AFFIRMED with MODIFICATION. The fine imposed to Pablo Arposeple y Sanchez in
Criminal Case No. 12853 is hereby increased to Three Hundred Thousand Pesos (Php300,000.00)

No pronouncement as to costs. 61

ISSUE

The sole issue raised by the appellants was the following:

THE TRIAL COURT ERRED IN CONVICTING THE ACCUSEDAPPELLANTS OF THE CRIME

CHARGED DESPITE THE FACT THAT THE PROSECUTION FAILED TO PROVE THEIR GUILT
BEYOND RESONABLE DOUBT.

THE RULING OF THE COURT

The appeal is meritorious.

An accused is presumed
innocent until his guilt
is proven beyond
reasonable doubt.

In all criminal cases, the presumption of innocence of an accused is a fundamental constitutional

right that should be upheld at all times, viz:
2. In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved,
and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause
of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses
face to face, and to have compulsory process to secure the attendance of witnesses and the
production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding
the absence of the accused provided, that he has been duly notified and his failure to appear is
unjustifiable.
62

In consonance with this constitutional provision, the burden of proof rests upon the prosecution  and 63

the accused must then be acquitted and set free should the prosecution not overcome the
presumption of innocence in his favor.  Conversely, in convicting the accused all the elements of the
64

crime charged must be proven beyond reasonable doubt,  viz:65

Sec. 2. Proof beyond reasonable doubt. - x x x Proof beyond reasonable doubt does not mean such
a degree of proof as, excluding possibility of error, produces absolute certainty. Moral certainty only
is required, or that degree of proof which produces conviction in an unprejudiced mind. 66

Settled in our jurisprudence is the rule that the conviction of the accused must rest, not on the
weakness of the defense, but on the strength of the prosecution. The burden is not on the accused
to prove his innocence. 67

On the one hand, unless some facts or circumstances of weight and influence have been overlooked
or the significance of which has been misinterpreted, the findings and conclusion of the trial court on
the credibility of witnesses are entitled to great respect and will not be disturbed because it has the
advantage of hearing the witnesses and observing their deportment and manner of testifying.  This68

rule however is not set in stone as not to admit recognized exceptions considering that "an appeal in
criminal cases opens the entire case for review, and it is the duty of the reviewing tribunal to correct,
cite, and appreciate errors in the appealed judgment whether they are assigned or unassigned. 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."  (citations omitted)
69

With these as our guideposts, we shall proceed to evaluate the records of these cases.

The charges against the

appellants vis-a-vis the
requirement on the
unbroken chain of
custody of the seized
drugs

In Crim. Case No. 12852, Arposeple and Sulogaol were charged and convicted with violation of Sec.
5, Article (Art.) II of R.A. No. 9165.
70

In Crim. Case Nos. 12853 and 12854, although both appellants were charged with violation of Secs.
11  and 12,  Art. II of R.A. No. 9165, on
71 72

Arposeple was convicted on both counts after the R TC ruled that the sachets of shabu and the drug
paraphernalia were found only in his person after the team undertook a body search. It must be
remembered that a person lawfully arrested may be searched without a warrant for anything which
may have been used or may constitute proof in the commission of an offense. 73
Jurisprudence dictates that to secure a conviction for illegal sale of dangerous drugs under Sec. 5,
Art. II of R.A. 9165, the prosecution must establish the following: (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.  The essential elements of illegal possession of dangerous drugs under Sec. 11
74

are as follows: (1) the accused is in possession of an item or object that is identified to be a
prohibited drug; (2) such possession is not authorized by law; and (3) the accused freely and
consciously possesses the said drug.  On the one hand, the elements of illegal possession of
75

equipment, instrument, apparatus and other paraphernalia for dangerous drugs under Sec. 12 are
the following: (1) possession or control by the accused of any equipment, apparatus or other
paraphernalia fit or intended for smoking, consuming, administering, injecting, ingesting, or
introducing any dangerous drug into the body; and (2) such possession is not authorized by
law.  The CA ruled that all the elements of the offenses charged against appellants were established
76

with moral certainty. 77

We do not agree.

In People v. Jaafar  we declared that in all prosecutions for violations of R.A. No. 9165, the corpus
78

delicti is the dangerous drug itself, the existence of which is essential to a judgment of conviction;
thus, its identity must be clearly established. The justification for this declaration is elucidated as
follows:

Narcotic substances are not readily identifiable. To determine their composition and nature, they
must undergo scientific testing and analysis. Narcotic .substances are also highly susceptible to
alteration, tampering, or contamination. It is imperative, therefore, that the drugs allegedly seized
from the accused are the very same objects tested in the laboratory and offered in court as
evidence. The chain of custody, as a method of authentication, ensures that unnecessary doubts
involving the identity of seized drugs are removed. 79

Equally significant therefore as establishing all the elements of violations of R.A. No. 9165 is proving
that there was no hiatus in the chain of custody of the dangerous drugs and paraphernalia. It would
be useless to still proceed to determine the existence of the elements of the crime if the corpus
delicti had not been proven beyond moral certainty. Irrefragably, the prosecution cannot prove its
case for violation of the provisions of R.A. No. 9165 when the seized items could not be accounted
for or when there were significant breaks in their chain of custody that would cast doubt as to
whether those items presented in court were actually those that were seized. An enlightened
precedent provides for the meaning of chain of custody, viz:

Chain of custody is defined as "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.80

The stringent requirement as to the chain of custody of seized drugs and paraphernalia was given
life in the provisions of R.A. No. 9165, viz:

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:

(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;

The Implementing Rules and Regulations (IRR) of R.A. No. 9165 provides the proper procedure to
be followed in Sec. 2l(a) of the Act, viz:

a. The apprehending office/team having initial custody and control of the drugs shall, immediately
after seizure and confiscation, physically inventory and photograph the same in the presence of the
accused or the person/s from whom such items were confiscated and/or seized, or his/her
representative or counsel, a representative from the media and the Department of Justice (DOJ),
and any elected public official who shall be required to sign the copies of the inventory and be given
a copy thereof: Provided, 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 noncompliance with these requirements under justifiable grounds, as long as the integrity
and the evidentiary value of the seized items are properly preserved by the apprehending
officer/team, shall not render void and invalid such seizures of and custody over said items.

Even the Dangerous Drugs Board (DDB) - the policy-making and strategy-formulating body in the
planning and formulation of policies and programs on drug prevention and control tasked to develop
and adopt a comprehensive, integrated, unified and balanced national drug abuse prevention and
control strategy  - has expressly defined chain of custody involving the dangerous drugs and other
81

substances in the following terms in Sec. l(b) of DDB Regulation No. 1, Series of 2002,  to wit:
82

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. 83

Jurisprudence dictates the links that must be established in the chain of custody in a buy-bust
situation: first, the seizure and marking, if practicable, of the illegal drug recovered from the accused
by the apprehending officer; second, the turnover of the illegal drug seized by the apprehending
officer to the investigating officer; third, the turnover by the investigating officer of the illegal drug to
the forensic chemist for laboratory examination; and fourth, the turnover and submission of the
marked illegal drug seized from the forensic chemist to the court. 84

a. The first link was weak.

On the first link, the importance of marking had been discussed as follows:

The first stage in the chain of custody is the marking of the dangerous drugs or related items.
Marking, which is the affixing on the dangerous drugs or related items by the apprehending officer or
the poseur-buyer of his initials or signature or other identifying signs, should be made in the
presence of the apprehended violator immediately upon arrest. The importance of the prompt
marking cannot be denied, because succeeding handlers of the dangerous drugs or related items
will use the marking as reference. Also, the marking operates to set apart as evidence the
dangerous drugs or related items from other material from the moment they are confiscated until
they are disposed of at the close of the criminal proceedings, thereby forestalling switching, planting,
or contamination of evidence. In short, the marking immediately upon confiscation or recovery of the
dangerous drugs or related items is indispensable in the preservation of their integrity and
evidentiary value.85

The prosecution claimed that the body search conducted by Ramos on Arposeple yielded the seized
items. The inventory of the items by Bagotchay outside Tara's house was witnessed by the
appellants, two kagawads, and a representative each from the DOJ and the media. Except for the
appellants, the witnesses to the inventory including Jimenez, as team leader, and Tara, as
representative of the appellants, affixed their respective signatures on the certificate of inventory.
Noteworthy, nothing was mentioned in the certificate of inventory as to the marking of the seized
items considering that the certificate contained a plain enumeration of the items, viz:

One (1) pc. transparent cellophane sachet containing suspected shabu powder

Two (2) pcs. empty transparent cellophane sachets containing suspected shabu leftover

Two (2) pcs. rolled aluminum foil used for tooter

Two (2) pcs. folded aluminum foil

Two (2) pcs. disposable lighters

One (1) pc. bamboo clip

One (1) pc. half blade

One (1) pc. five hundred peso bill - as marked money bearing SN# GY 558660

One (1) pc. one hundred peso (₱100) bill

One (1) pc. playing card plastic case 86

Ramos, Tabuelog, and Jimenez failed to explain how and when the seized items were marked.
Ramos stated that after the inventory of the items the appellants were brought to the police station
for proper disposition, i.e., the booking of the appellants, and the team's preparation of their
report.  Ramos and Tabuelog executed their respective affidavits  relative to the buy-bust operation
87 88

but both failed to mention anything therein as to what had happened to the seized items after the
inventory and when these were probably brought to the police station for marking.

De Guzman admitted that she had no knowledge as to who made the markings on the
evidence.  Even Ruiz's testimony never made mention of the marking. True, there were already
89

markings on the seized items when these were submitted to the laboratory for examination but not
one of the prosecution witnesses testified as to who had made the markings, how and when the
items were marked, and the meaning of these markings. Conspicuously, the uncertainty exceedingly
pervades that the items presented as evidence against the appellants were exactly those seized
during the buy-bust operation.

Also glaring was the hiatus from the time the seized items were inventoried by Bagotchay in front of
Tara's house to the time these were delivered to the laboratory.  In his memorandum  relative to his
1âwphi1
90

request for the laboratory examination of the seized items, P/Supt. Ernesto Agas (Agas) stated that
the evidence were obtained on 21 September 2005 at around 4:00 a.m. Bagotchay delivered the
evidence to the laboratory, notably already marked, on the same day at 3:05 p.m. The lapse of
eleven (11) hours for the submission of the seized items to the laboratory was significant considering
that the preservation of the chain of custody vis-a-vis the contraband ensures the integrity of the
evidence incriminating the accused, and relates to the element of relevancy as one of the requisites
for the admissibility of the evidence.  In contrast, Agas' memorandum  pertinent to his request for
91 92

the drug/urine tests of the appellants were forwarded to the laboratory on the same day at 9:50 a.m.
or a gap of at least six (6) hours only.

Bagotchay, who was assigned by Jimenez as the custodian of the seized items, was never
presented by the prosecution to elucidate on the following important matters: the significant break
from the inventory to the actual marking of the items; how and when these items were marked; the
justification for the long period it took him to submit these to the laboratory; the identity and signature
of the person who held temporary custody of seized items; 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.93

To stress, in order that the seized items may be admissible, the prosecution must show by records
or testimony, the continuous whereabouts of the exhibit at least between the times it came into the
possession of the police officers until it was tested in the laboratory to determine its composition up
to the time it was offered in evidence.  In Mallillin v. People  we were more definite on qualifying the
94 95

method of authenticating evidence through marking, viz: "(I)t would include testimony about every
link in the chain, from the moment the item was picked up to the time it is offered into evidence; in
such a way that every person who touched the exhibit would describe how and from whom it was
received, where it was and what happened to it while in the witness' possession; the condition in
which it was received and the condition in which it was delivered to the next link in the chain."  We
96

have scrupulously scanned the records but found nothing that would support a declaration that the
seized items were admissible.

Section 21 of R.A. No. 9165 requires that the seized items be photographed 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 each from the media and the DOJ, and any elected
public official. The records of these cases, however, were bereft of any showing of these
photographs while the testimony of the prosecution witnesses were most notably silent on whether
photographs were actually taken as required by law.

Certainly revealing from these findings was the consistent noncompliance by the team with the
requirements of Sec. 21 of R.A. No. 9165. It must be remembered that this provision of the law was
laid down by Congress as a safety precaution against potential abuses by law enforcement agents
who might fail to appreciate the gravity of the penalties faced by those suspected to be involved in
the sale, use or possession of illegal drugs.  While it may be true that noncompliance with Sec. 21 of
97

Republic Act No. 9165 is not fatal to the prosecution's case provided that the integrity and
evidentiary value of the seized items are properly preserved by the apprehending officers, this
exception will only be triggered by the existence of a ground that justifies departure from the general
rule.  The prosecution, however, miserably failed to prove that its cases fall within the
98

jurisprudentially recognized exception to the rule.

The first link in the chain of custody was undoubtedly inherently weak which caused the other links
to miserably fail. The first link, it is emphasized, primarily deals on the preservation of the identity
and integrity of the confiscated items, the burden of which lies with the prosecution. The marking has
a twin purpose, viz: first, to give the succeeding handlers of the specimen a reference,
and second, to separate the marked evidence from the corpus of all other similar or related
evidence from the moment of seizure until their disposition at the end of criminal proceedings,
thereby obviating switching, "planting," or contamination of evidence.  Absent therefore the certainty
99

that the items that were marked, subjected to laboratory examination, and presented as evidence in
court were exactly those that were allegedly seized from Arposeple, there would be no need to
proceed to evaluate the succeeding links or to determine the existence of the other elements of the
charges against the appellants. Clearly, the cases for the prosecution had been irreversibly lost as a
result of the weak first link irretrievably breaking away from the main chain.

b. The presumption of
regularity in the
performance of duty cannot
prevail in these cases.

Even the presumption as to regularity in the performance by police officers of their official duties
easily disappeared before it could find significance in these cases. Continuing accretions of case law
reiterate that a high premium is accorded the presumption of innocence over the presumption of
regularity in the performance of official duty, viz:

We have usually presumed the regularity of performance of their official duties in favor of the
members of buy-bust teams enforcing our laws against the illegal sale of dangerous drugs. Such
presumption is based on three fundamental reasons, namely: first, innocence, and not wrongdoing,
is to be presumed; second, an official oath will not be violated; and, third, a republican form of
government cannot survive long unless a limit is placed upon controversies and certain trust and
confidence reposed in each governmental department or agent by every other such department or
agent, at least to the extent of such presumption. But the presumption is rebuttable by affirmative
evidence of irregularity or of any failure to perform a duty. Judicial reliance on the presumption
despite any hint of irregularity in the procedures undertaken by the agents of the law will thus be
fundamentally unsound because such hint is itself affirmative proof of irregularity.

The presumption of regularity of performance of official duty stands only when no reason exists in
the records by which to doubt the regularity of the performance of official duty. And even in that
instance the presumption of regularity will not be stronger than the presumption of innocence in favor
of the accused. Otherwise, a mere rule of evidence will defeat the constitutionally enshrined right to
be presumed innocent. Trial courts are instructed to apply this differentiation, and to always bear in
mind the following reminder issued in People v. Catalan:

x x x We remind the lower courts that the presumption of regularity in the performance of duty could
not prevail over the stronger presumption of innocence favoring the accused. Otherwise, the
constitutional guarantee of the accused being presumed innocent would be held subordinate to a
mere rule of evidence allocating the burden of evidence. Where, like here, the proof adduced against
the accused has not even overcome the presumption of innocence, the presumption of regularity in
the performance of duty could not be a factor to adjudge the accused guilty of the crime charged.

Moreover, the regularity of the performance of their duty could not be properly presumed in favor of
the policemen because the records were replete with indicia of their serious lapses. As a rule, a
presumed fact like the regularity of performance by a police officer must be inferred only from an
established basic fact, not plucked out from thin air. To say it differently, it is the established basic
fact that triggers the presumed fact of regular performance. Where there is any hint of irregularity
committed by the police officers in arresting the accused and thereafter, several of which we have
earlier noted, there can be no presumption of regularity of performance in their favor.

It must be noted that the chemistry report  of De Guzman mentioned that the specimens submitted
100

for examination contained either small amount  or traces  on1y of white substance which tested
101 102

positive for methamphetamine hydrochloride. The informations in Crim. Case Nos. 12852 and 12853
respectively refer to a transparent cellophane sachet and two empty transparent cellophane sachets,
each of which contained shabu weighing not more than 0.01 grams. Recent cases  have highlighted
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the need to ensure the integrity of seized drugs in the chain of custody when only a minuscule
amount of drugs had been allegedly seized from the accused. Pertinently, we have held that
"[c]ourts must employ heightened scrutiny, consistent with the requirement of proof beyond
reasonable doubt, in evaluating cases involving minuscule amounts of drugs ... [as] they can be
readily planted and tampered [with]."104

The guilt of the appellants was

not proven beyond reasonable
doubt.

This much is clear and needs no debate: the blunders committed by the police officers relative to the
procedure in Sec. 21, R.A. No. 9165, especially on the highly irregular manner by which the seized
items were handled, generates serious doubt on the integrity and evidentiary value of the items.
Considering that the seized items constitute the corpus delicti of the offenses charged, the
prosecution should have proven with moral certainty that the items confiscated during the buy-bust
operation were actually those presented before the RTC during the hearing. In other words, it must
be unwaveringly established that the dangerous drug presented in court as evidence against the
accused is the same as that seized from him in the first place.  Under the principle that penal laws
105

are strictly construed against the government, stringent compliance with Sec. 21, R.A. No. 9165 and
its IRR is fully justified.  The breaches in the procedure provided in Sec. 21, R.A. No. 9165
106

committed by the police officers, and left unacknowledged and unexplained by the State, militate
against a finding of guilt beyond reasonable doubt against the appellants as the integrity and
evidentiary value of the corpus delicti had been compromised. 107

To recapitulate, the records of these cases were bereft of any showing that the prosecution had
discharged its burden to: (1) overcome the presumption of innocence which appellants enjoy; (2)
prove the corpus delicti of the crime; (3) establish an unbroken chain of custody of the seized drugs;
and (4) offer any explanation why the provisions of Sec. 21, R.A. No. 9165 were not complied with.
This Court is thus constrained to acquit the appellants based on reasonable doubt. 108

WHEREFORE, in view of the foregoing, we REVERSE and SET ASIDE the 3 October 2011

Decision of the Court of Appeals in CA-G.R. CR-HC No. 00865. Accused-appellants Pablo
Arposeple y Sanchez and Jhunrel Sulogaol y Datu are hereby ACQUITTED of the crimes charged
for failure of the prosecution to prove their guilt beyond reasonable doubt. They are
ordered IMMEDIATELY RELEASED from detention unless they are otherwise legally confined for
another cause.

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

SO ORDERED.
SAMUEL R. MARTIRES
Associate Justice

WE CONCUR:

PRESBITERO J. VELASCO, JR.

Associate Justice
Chairperson

LUCAS P. BERSAMIN MARVIC M.V.F. LEONEN

Associate Justice Associate Justice

ALEXANDER G. GESMUNDO
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court’s Division.

PRESBITERO J. VELASCO, JR.

Associate Justice
Chairperson, Third Division