Chain of Custody

Drug cases
Section 1 (b) of DDB Regulation No. 1, Series of 2002

"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

chain of custody rule is a matter of evidence and a rule of procedure

The chain of custody rule

The chain of custody rule requires the identification of the persons who handled the
confiscated items for the purpose of duly monitoring the authorized movements of the illegal
drugs and/or drug paraphernalia from the time they were seized from the accused until the
time they are presented in court. Saraum v. People : 779 Phil. 122, 133 (2016)
37

1.from the moment the item was picked up to the time it is offered into evidence,

2. 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.

3. 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. 

dangerous drugs seized from appellant constitutes such corpus delicti (as the body or substance of
the crime, refers to the fact that a crime was actually committed. As applied to a particular offense, it
means the actual commission by someone of the particular crime charged.)

Prosecution establish that the identity and integrity of the dangerous drugs were duly preserved in
order to support a verdict of conviction

 links in the chain that need to be established

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.
First, the seizure and marking, if practicable, of the dangerous drug recovered from the accused by
the apprehending officer;

The first link refers to seizure and marking. "Marking" means the apprehending officer or the
poseur-buyer places his/her initials and signature on the seized item. The marking of the evidence
serves to separate the marked evidence from the corpus of all other similar or related evidence from
the time they are seized from the accused until they are disposed of at the end of the criminal
proceedings, thus, preventing switching, planting or contamination of evidence

Marking after seizure is the starting point in the custodial link. It is vital that the seized
contraband be immediately marked because succeeding handlers of the specimens will use the
markings as reference.  Marking though should be done in the presence of the apprehended violator
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immediately upon confiscation to truly ensure that they are the same items which enter the chain of
custody.

The first link also includes compliance with the physical inventory and photograph of the seized
dangerous drug. This is done before the dangerous drug is sent to the crime laboratory for testing.

(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[.]

Under the law, a physical inventory and photograph of the items that were purportedly seized
from the accused should have been made at the nearest police station or at the nearest
office of the apprehending officer/team, whichever is practicable. The entire procedure must
likewise be made in the presence of the accused or his representative or counsel and three
witnesses, namely: (1) an elected public official; (2) a representative from the DOJ; AND (3)
a representative from the media. These individuals shall then be required to sign the copies
of the inventory and be given a copy thereof.

In this connection, Section 21, Article II of RA 9165  lays down the procedure that police operatives
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must follow to maintain the integrity of the confiscated drugs used as evidence. The provision
requires that: (1) the seized items be inventoried and photographed immediately after seizure
or confiscation; and (2) the physical inventory and photographing must be done in the
presence of (a) the accused or his/her representative or counsel, (b) an elected public
official, (c) a representative from the media, and (d) a representative from the Department of
Justice (DOJ), all of whom shall be required to sign the copies of the inventory and be given
a copy thereof.

This must be so because with "the very nature of anti-narcotics operations, the need for entrapment
procedures, the use of shady characters as informants, the ease with which sticks of marijuana or
grams of heroin can be planted in pockets of or hands of unsuspecting provincial hicks, and the
secrecy that inevitably shrouds all drug deals, the possibility of abuse is great."
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Section 21 of RA 9165 further requires the apprehending team to conduct a physical inventory of the
seized items and the photographing of the same immediately after seizure and confiscation. The
said inventory must be done in the presence of the aforementioned required witness, all of
whom shall be required to sign the copies of the inventory and be given a copy thereof.

The Court has previously stressed that 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, 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. In People v. Tomawis,  the Court elucidated on the
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purpose of the law in mandating the presence of the required witnesses as follows:

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 vs. Mendoza,  without the insulating presence of the
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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 No. 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.

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 frame-up 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."  (Emphasis and underscoring supplied)
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The physical inventory and

photographing of the allegedly
seized drug in the presence of the
three required witnesses were not
done at the time of seizure and
confiscation of the drug and at or
near the place of the buy-bust.

In the instant case, it is not disputed that the inventory and photographing of evidence that was
conducted in the presence of Dumanjug, the DOJ representative, i.e., Ronaldo Bedrijo, the media
representative, i.e., Rey Brangan, and the Barangay Kagawad, i.e., Celso Montilla,
were not conducted immediately after the seizure and confiscation of the illegal drug at the place of
the supposed buy-bust operation, i.e., the boarding house of Dumanjug. Instead, the inventory and
photographing of evidence in the presence of the required witnesses were commenced after the
buy-bust operation was terminated and in another location - the Regional Office of the PDEA.

As noted by the CA in the assailed Decision, "[t]he inventory and the taking of photographs of the
seized items were, however, not done at the crime scene. It was established by the prosecution
that when they reached the PDEA Office, the team marked the other confiscated items, made
inventory of all the marked items, including the marked sachet of shabu, and took photographs for
the necessary documentation of the process."  The CA also noted that there was a "failure of the
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apprehending team to immediately conduct a physical inventory and photograph of the seized
items"  and that "gaps were observed in the strict compliance in the 'chain of custody rule'[.]"  As
28 29

factually found by the RTC in its Omnibus Decision based on the testimonies of Agents Tibayan and
Balbada, not a single photograph was taken during the alleged buy-bust operation.

first, the required marking at the place of arrest in the presence of appellant during such
marking, second, the inventory and third, the photograph of the confiscated dangerous drug.

(1) such noncompliance was due to justifiable grounds and (2) the integrity and the evidentiary
value of the seized items are properly preserved by the apprehending officer/team.

The prosecution never alleged and proved that the presence of the required witnesses was not
obtained for any of the following reasons, such as: (1) their attendance was impossible because
the place of arrest was a remote area; (2) their safety during the inventory and photograph of the
seized drugs was threatened by an immediate retaliatory action of the accused or any person/s
acting for and in his/her behalf; (3) the elected official themselves were involved in the
punishable acts sought to be apprehended; (4) earnest efforts to secure the presence of a DOJ
or media representative and an elected public official within the period required under Article 125
of the Revised Penal Code prove futile through no fault of the arresting officers, who face the
threat of being charged with arbitrary detention; or (5) time constraints and urgency of the anti-
drug operations, which often rely on tips of confidential assets, prevented the law enforcers from
obtaining the presence of the required witnesses even before the offenders could escape

Second, the turnover of the dangerous drug seized by the apprehending officer to the investigating
officer;

The second link in the chain of custody is the transfer of the seized drugs by the apprehending
officer to the investigating officer. Usually, the police officer who seizes the suspected substance
turns it over to a supervising officer, who will then send it by courier to the police crime laboratory for
testing. This is a necessary step in the chain of custody because it will be the investigating officer
who shall conduct the proper investigation and prepare the necessary documents for the developing
criminal case. Certainly, the investigating officer must have possession of the illegal drugs to
properly prepare the required documents.

the seized substance did not change hands. In this sense, it can be said that there was no break in
the 2nd link.

Third, the turnover by the investigating officer of the dangerous drug to the forensic chemist for
laboratory examination; and

2) Within twenty-four (24) hours upon confiscation/seizure of dangerous drugs, plant sources of
dangerous drugs, controlled precursors and essential chemicals, as well as
instruments/paraphernalia and/or laboratory equipment, the same shall be submitted to the PDEA
Forensic Laboratory for a qualitative and quantitative examination;

3) A certification of the forensic laboratory examination results, which shall be done under oath by
the forensic laboratory examiner, shall be issued within twenty-four '(24) hours after the receipt of the
subject item/s: Provided, That when the volume of the 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 on the completed forensic laboratory examination
on the same within the next twenty-four (24) hours

From the investigating officer, the illegal drug is delivered 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.

Fourth, the turnover and submission of the marked dangerous drug seized from the forensic
chemist to the court.

fourth link refers to the turnover and submission of the dangerous drug from the forensic chemist to
the court. People v. Hementiza, 807 Phil. 1017, 1030 (2017)  In drug related cases, it is of
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paramount necessity that the forensic chemist testifies on the details pertaining to the handling and
analysis of the dangerous drug submitted for examination i.e. when and from whom the dangerous
drug was received; what identifying labels or other things accompanied it; description of the
specimen; and the container it was in. Further, the forensic chemist must also identify the name and
method of analysis used in determining the chemical composition of the subject specimen. Board
Regulation No. 1, Series of 2002: Guidelines on the Custody and Disposition of Seized Dangerous
Drugs, Controlled Precursors and Essential Chemicals, and Laboratory Equipment.

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.47 In this case, there was no testimonial or documentary
evidence on how FC Rodrigo kept the seized items while it was in her custody and in what condition
the items were in until it was presented in court. While the parties stipulated on FC Rodrigo's
testimony, the stipulations do not provide information regarding the condition of the seized item while
in her custody or if there was no opportunity for someone not in the chain to have possession
thereof.

In People v. Gutierrez,48 there were inadequate stipulations as to the testimony of the forensic

chemist. In that case, no explanation was given regarding the chemist's custody in the interim - from
the time it was turned over to the investigator to its turnover 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.

while the chain of custody should ideally be perfect and unbroken, this is almost always impossible
to obtain.  In this light, the Implementing Rules and Regulations of RA 9165 bears a saving clause
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allowing leniency whenever compelling reasons exist that would otherwise warrant deviation from
the established protocol so long as the integrity and evidentiary value of the seized items are
properly preserved

While testimony about a perfect chain is not always the standard because it is almost always
impossible to obtain an unbroken chain of custody, it becomes essential when the evidence is
susceptible to alteration, tampering, contamination and even substitution and exchange. "In other
words, the exhibit's level of susceptibility to fungibility, alteration or tampering without regard to
whether the same is advertent or otherwise not dictates the level of strictness in the application of
the chain of custody rule."25

The failure of the police officers to provide a reasonable excuse or justification for the absence of the
other witnesses clearly magnified the lack of concrete effort on their part to comply with the
requirements of Section 21. The absence of these witnesses constitutes a substantial gap in the
chain of custody and raises doubts on the integrity and evidentiary value of the items that were
allegedly seized from the petitioner. It militates against a finding of guilt beyond reasonable doubt.

Failure to follow the procedure mandated under R.A. No. 9165 and its IRR must be adequately
explained

Probation

P.D No. 968 July 24, 1976

Probation Law
REPUBLIC ACT No. 10707

Purpose

a) promote the correction and rehabilitation of an offender by providing him with individualized
treatment;

(b) provide an opportunity for the reformation of a penitent offender which might be less probable if
he were to serve a prison sentence; and

(c) prevent the commission of offenses.

"Probation" is a disposition under which a defendant, after conviction and sentence, is released
subject to conditions imposed by the court and to the supervision of a probation officer.
Probation is not a right but a mere privilege, an act of grace and clemency conferred by the State,
the grant of probation rests solely upon the discretion of the court.

It is to be exercised primarily for the benefit of society, and only incidentally for the benefit of the
accused. 16

Probation is a special privilege granted by the state to a penitent qualified offender. encourages an
otherwise eligible convict to immediately admit his liability and save the state of time, effort and
expenses to jettison an appeal.

The law expressly requires that an accused must not have appealed his conviction before he can
avail of probation.

An accused applying for probation is deemed to have accepted the judgment. The application for
probation is an admission of guilt on the part of an accused for the crime which led to the judgment
of conviction.

Probation is a special privilege granted by the state to penitent qualified offenders who immediately
admit their liability and thus renounce their right to appeal. In view of the acceptance of their fate and
willingness to be reformed, the state affords them a chance to avoid the stigma of an incarceration
record by making them undergo rehabilitation outside of prison. Some of the major purposes of the
law are to help offenders develop themselves into law-abiding and self-respecting individuals, as
well as assist them in their reintegration with the community.  In Villareal v. People,  the Court
34 35

reiterated that probation is not a right enjoyed by the accused, but rather, an act of grace or
clemency conferred by the State, viz.:

It is a special prerogative granted by law to a person or group of persons not enjoyed by others or by
all. Accordingly, the grant of probation rests solely upon the discretion of the court which is to be
exercised primarily for the benefit of organized society, and only incidentally for the benefit of the
accused. The Probation Law should not therefore be permitted to divest the state or its government
of any of the latter's prerogatives, rights or remedies, unless the intention of the legislature to this
end is clearly expressed, and no person should benefit from the terms of the law who is not clearly
within them. 36

“SEC. 4. Grant of Probation. —

the trial court may, after it shall have convicted and sentenced a defendant for a probationable
penalty and upon application by said defendant within the period for perfecting an appeal (15 days),
suspend the execution of the sentence and place the defendant on probation for such period and
upon such terms and conditions as it may deem best.

No application for probation shall be entertained or granted if the defendant has perfected the appeal

Provided, judgment of conviction imposing a non-probationable penalty is appealed or

reviewed, and such judgment is modified through the imposition of a probationable penalty, the
defendant shall be allowed to apply for probation

The application for probation based on the modified decision shall be filed in the trial court
where the judgment of conviction imposing a non-probationable penalty was rendered,
The trial court shall, upon receipt of the application filed, suspend the execution of the sentence
imposed in the judgment.

“Probation may be granted whether the sentence imposes a term of imprisonment or a fine only.

The filing of the application shall be deemed a waiver of the right to appeal. 1âwphi1

“An order granting or denying probation shall not be appealable.”

Section 5. Post-sentence Investigation. No person shall be placed on probation except upon prior
investigation by the probation officer and a determination by the court that the ends of justice and the
best interest of the public as well as that of the defendant will be served thereby.

Section 8. Criteria for Placing an Offender on Probation. 

the court shall consider all information relative, to the character, antecedents, environment, mental
and physical condition of the offender, and available institutional and community resources.
Probation shall be denied if the court finds that:

(a) the offender is in need of correctional treatment that can be provided most effectively by
his commitment to an institution; or

(b) there is undue risk that during the period of probation the offender will commit another
crime; or

(c) probation will depreciate the seriousness of the offense committed.

“SEC. 9. Disqualified Offenders. — The benefits of this Decree shall not be extended to those:

“a. sentenced to serve a maximum term of imprisonment of more than six (6) years;

“b. convicted of any crime against the national security;

Article 114. Treason. Article 115. Conspiracy and proposal to commit treason; Article

116. Misprision of treason. Article 117. Espionage. Article 118. Inciting to war or giving motives for
reprisals, Article 119. Violation of neutrality. Article 120. Correspondence with hostile country.,
Article 121. Flight to enemy country. Article 122. Piracy in general and mutiny on the high seas. -
Article 123. Qualified piracy. 

“c. who have previously been convicted by final judgment of an offense punished by
imprisonment of more than six (6) months and one (1) day and/or a fine of more than one
thousand pesos (P1,000.00);

“d. who have been once on probation under the provisions of this Decree;

Section 13. Control and Supervision of Probationer. The probationer and his probation program
shall be under the control of the court who placed him on probation subject to actual supervision and
visitation by a probation officer.
Whenever a probationer is permitted to reside in a place under the jurisdiction of another court,
control over him shall be transferred to the Executive Judge of the Court of First Instance of that
place, and in such a case

Section 14. Period of Probation.

(a) The period of probation of a defendant sentenced to a term of imprisonment of not more
than one year shall not exceed two years, and in all other cases, said period shall not
exceed six years.

(b) When the sentence imposes a fine only and the offender is made to serve subsidiary
imprisonment in case of insolvency, the period of probation shall not be less than nor to be
more than twice the total number of days of subsidiary

Section 15. Arrest of Probationer; Subsequent Disposition. At any time during probation, the court
may issue a warrant for the arrest of a probationer for violation of any of the conditions of probation.
The probationer, once arrested and detained, shall immediately be brought before the court for a
hearing, which may be informal and summary, of the violation charged. The defendant may be
admitted to bail pending such hearing. In such a case, the provisions regarding release on bail of
persons charged with a crime shall be applicable to probationers arrested under this provision. If the
violation is established, the court may revoke or continue his probation and modify the conditions
thereof. If revoked, the court shall order the probationer to serve the sentence originally imposed. An
order revoking the grant of probation or modifying the terms and conditions thereof shall not be
appealable.

“SEC. 16. Termination of Probation. — After the period of probation and upon consideration of the
report and recommendation of the probation officer, the court may order the final discharge of the
probationer upon finding that he has fulfilled the terms and conditions of his probation and thereupon
the case is deemed terminated.

“The final discharge of the probationer shall operate to restore to him all civil rights lost or suspended
as a result of his conviction and to totally extinguish his criminal liability as to the offense for which
probation was granted.

Section 17. Confidentiality of Records.