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FIRST DIVISION
Present:
BERSAMIN, C.J.,
-versus - DEL CASTILLO,
GESMUNDO,
REYES, JR., J., * and
CARANDANG, JJ.
DECISION
Appellant Orly Visperas y Acobo (appellant) appeals from the October 16,
2015 Decision1 of the Court of Appeals (CA) in CA-G.R. CR HC No. 06149,
that affirmed the April 1, 2013 Decision2 of the Regional Trial Court (RTC) of
Dagupan City, Branch 44, in Criminal Case No. 2010-0518-D, finding him guilty
beyond reasonable doubt of violating Section 5, Article II of Republic Act (RA)
No. 9165.
Factual Antecedents
t .,
transparent plastic sachet of methamphetamine hydrochloride with a weight of
0.028 grams [sic], without necessary permit or authority to sell.
On September 29, 2010, SPOl Roberto Molina (SPOl Molina) and SPOl
Ronnie Quinto (SPOl Quinto) relayed to Chief of Police, PIS Insp. Dominick
Soriano Poblete (PSI Poblete), a report from a confidential asset that appellant
was selling shabu in Mapandan, Pangasinan. PSI Poblete ordered them to plan
and conduct a buy-bust operation against appellant. SPOl Molina was
designated as the poseur-buyer and to him were delivered three 100-peso bills
marked as buy-bust money.
At around 8 p.m. of the same day, the buy-bust team arrived at the house
of appellant. SPO 1 Quinto occupied a vantage point a short distance away. The
confidential asset introduced SPOl Molina to appellant and a transaction for the
sale of shabu transpired. SPOl Molina then gave appellant the buy-bust money.
Appellant went inside his house, and, upon his return, handed a plastic sachet of
shabu to SPOl Molina. With the shabu in his possession, SPOl Molina signaled
SPO 1 Quinto that the sale was consummated. SPO 1 Quinto rushed toward
appellant and arrested him. He also informed appellant of the nature of his arrest
and his constitutional rights. SPO 1 Molina then conducted a search on the person
of appellant and recovered the buy-bust money. After this, SPO 1 Molina and
SPO 1 Quinto proceeded to the police station with appellant.
When they reached the police station, SPO 1 Molina turned over the sachet
of shabu and the marked money to the duty investigator, SPO 1 Jeffrey Natividad,
who prepared the documents needed for the prosecution of appellant and
forwarded the sachet of shabu to the police crime laboratory. Forensic Chemist
Ma. Theresa Amor C. Manuel performed a chemical examination on the contents
of the sachet and the results confirmed that it was indeed shabu.
Appellant claimed that, on September 29, 2010, he was eating isaw with
his niece and nephew in front of his house at Brgy. Poblacion, Mapandan,
Pangasinan, when SPO 1 Molina approached and invited him to the municipal ~
3 Id.at33. /R'v'
Decision 3 G.R. No. 231010
In its Decision dated April 1, 2013, the RTC found appellant guilty beyond
reasonable doubt of violation of Section 5, Article II of RA 9165. The RTC gave
short shrift to appellant's account of the case, and sustained the prosecution's
evidence that appellant was arrested for selling shabu to an undercover police
officer during a buy-bust operation over appellant's uncorroborated denial and
version of the incident. The RTC, thus, sentenced appellant to suffer the penalty
oflife imprisonment and to pay a fine of P500,000.00.
In its Decision of October 16, 2015, the CA affirmed the RTC's Decision.
It held that the prosecution's evidence established the acts constituting the illegal
sale of shabu. The CA ruled that the prosecution was able to preserve the
integrity and evidentiary value of the seized items. It held that appellant failed
to show that the police officers who arrested him were impelled by bad faith or
ill-intent, or that there had been tampering with the evidence, for which reason
the court may safely rely on the presumption that the integrity of the evidence
has been properly preserved.
Moreover, the CA ruled that the apparent failure to comply with Section
21, Article II of RA 9165, particularly, the procedure to be observed in the
inventory and photographing of the shabu seized during the buy-bust operation
will not render the same inadmissible in evidence.
Our Ruling
the corpus delicti. 4 More than that, the prosecution must also establish the
integrity of the dangerous drug, because the dangerous drug is itself the corpus
delicti of the case. 5
(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 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; . ~
/
4
People v. Caiz, 790 Phil. 183, 196 (2016).
5
Id. at 197.
Decision 5 G.R. No. 231010
It must be alleged and proved that the presence of the three witnesses
to the physical inventory and photograph of the illegal drug seized was not
obtained due to reason/s 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 proved 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. 7 (Emphasis in the original)
It is well to note that the absence of these required witnesses does not
per se render the confiscated items inadmissible. However, a justifiable reason
for such failure or a showing of any genuine and sufficient effort to secure
the required witnesses under Section 21 of RA 9165 must be adduced. In
People v. Umipang, the Court held that the prosecution must show that earnest
efforts were employed in contacting the representatives enumerated under the
law for "a sheer statement that representatives were unavailable without so
much as an explanation on whether serious attempts were employed to look for
other representatives, given the circumstances is to be regarded as a flimsy
excuse." Verily, mere statements of unavailability, absent actual serious
attempts to contact the required witnesses are unacceptable as justified grounds
for non-compliance. These considerations arise from the fact that police
officers are ordinarily given sufficient time - beginning from the moment they
have received the information about the activities of the accused until the time
of his arrest - to prepare for a buy-bust operation and consequently, make the
necessary arrangements beforehand knowing full well that they would have to
strictly comply with the set procedure prescribed in Section 21 of RA 9165. As
such, police officers are compelled not only to state reasons for their non-
compliance, but must in fuel, also convince the Court that they exerted e : , m ~
6
G.R. No. 231989, September 4, 2018.
7
Id.
8
G.R. No. 233744, February 28, 2018. (Citations omitted).
Decision 6 G.R. No. 231010
efforts to comply with the mandated procedure, and that under the given
circumstances, their actions were reasonable. 9 (Emphasis in the original)
In other words, jurisprudence requires that, in the event that the presence
or attendance of the essential witnesses is not obtained, the prosecution must
establish not only the reasons for their absence, but also that earnest efforts were
exerted in securing their presence. 10 The prosecution must explain the reasons
for the procedural lapses, and the justifiable grounds for failure to comply must
be proven, since the Court cannot presume what these grounds are or that they
even exist. 11
In this case, the prosecution failed to prove both requisites. The Court has
thoroughly reviewed the records and cannot find any mention at all that the
physical inventory and that photographing of the confiscated shabu had been
done or were done in the presence of an elected public official, a representative
from media and the DOJ. None of the signatures of the elected public official,
nor of a representative from the media, nor of a representative from the DOJ
appear in the Inventory Receipt. And the State has not given any reason for the
complete failure of the arresting officers to secure the attendance of these
required witnesses. To the foregoing must be added the fact that there is nothing
on record to indicate that the arresting team ever exerted an honest-to-goodness
attempt to secure their presence.
Given the fact that no elected public official, no representative from the
media and no representative from the DOJ was present during the physical
inventory and the photographing of the seized shabu, the evils of switching of,
"planting" or contamination of the evidence create serious lingering doubts as to
the integrity of the alleged corpus delicti.
9
Id.
to People v. Pascua, G.R. No. 227707, October 8, 2018.
11
People v. Ramos, supra note 8.
Decision 7 G.R. No. 231010
SOORDERED.
~~ ~O C. DEL CASTILLO
Associate Justice
WECONCUR:
a
{[r/4 ~
C. REris, JR.
ociate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, I certify that the con-
clusions 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.