Philippine Supreme Court Jurisprudence > Year 2017 > August 2017 Decisions > G.R. No. 180447, August 23, 2017 - PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. FERNANDO GERONIMO Y AGUSTINE, ALIAS "NANDING BAKULAW", Accused-Appellant.:

The State, not the accused, has the heavy burden of justifying at the trial the lapses or gaps in the chain of custody. Without the justification, the chain of custody is not shown to be unbroken; hence, the integrity of the evidence of the corpus delicti was not preserved. The acquittal of the accused should follow.

The Case

The accused-appellant appeals the decision promulgated on April 27, 2007 in CA-G.R. CR-H.C. No. 01793,¹ whereby the Court of Appeals (CA) affirmed the judgment rendered in Criminal Case No. 12873-D on August 5, 2005 by the Regional Trial Court (RTC), Branch 151, in Pasig City² pronouncing him guilty beyond reasonable doubt of a violation of Section 5, Article II of Republic Act No. 9165 (Comprehensive Dangerous Drugs Act of 2002) as charged.

Antecedents

The CA summed up the factual antecedents in its decision, as follows:chanRoblesvirtualLawlibrary

About 2:00 o'clock in the afternoon of September 4, 2003, while PO1 Janet Sabo and SPO4 Manuel Buenconsejo were at their office at the Mayor Special Action Team (MSAT) at the City Hall Detachment, Pasig City, a confidential informant arrived and reported to them that a certain alias Nanding Bakulaw, who was later identified as appellant Fernando Geronimo, was engaged in illegal drug activities victimizing young individuals in Interior Villa Sanchez, Palatiw, Pasig City. SPO4 Buenconsejo relayed said report to their chief, P/Insp. Rodrigo Villaruel, who immediately formed and conducted a briefing for the buy-bust team composed of SPO4 Buenconsejo, PO3 Hunilassan Salisa, PO2 Arturo San Andres, PO1 Aldrin Mariano, PO1 Rolando Panis and PO1 Janet Sabo.

SPO4 Buenconsejo tasked PO1 Sabo to act as the poseur-buyer. The police operatives entered into their police blotter, the marked money which would be used in the buy-bust operation, after which the two pieces of One Hundred Peso (P100) bills were handed to PO1 Janet Sabo. The police investigators then faxed a pre-operational request to Philippine Drug Enforcement Agency of PDEA.

About 3 o'clock that afternoon, the group boarded an L-300 Mitsubishi van and proceeded to Palatiw near M.H. Del Pilar, Pasig City. About 3:10, the police operatives reached the pinpointed place and entered the interior of Villa Sanchez. PO1 Sabo and the informant went ahead of the group, who followed the former to the interior of Villa Sanchez. The informant then pinpointed to PO1 Sabo the appellant, alias Nanding Bakulaw, who was the subject of the buy-bust operation and who was standing five (5) meters away. PO1 Sabo and the informant approached alias Nanding Bakulaw. The informant then called appellant out "Bakulaw!", to which appellant replied, "Pare bakit?" The informant replied, "I-score kami" (We will buy shabu). Appellant momentarily stared at them. The asset told appellant that SPO1 Sabo was his companion. Appellant asked the asset how much they intend to buy. The asset replied that he need[ed] P200 pesos worth of shabu and at the same time, got the money from his pocket and handed it to appellant. Appellant took the money and placed it inside the pocket of his short pants. Appellant then left and entered his house. After a while, appellant came out carrying a plastic sachet containing white crystalline substance suspected to be shabu and handed it to PO1 Sabo, who then ascertained its contents and placed the sachet in her pocket. PO1 Sabo then waved a white face towel indicating to her companions the agreed pre-arranged signal. PO1 Sabo then held short pants (sic) and introduced herself as a police officer. The surprised appellant shoved her but she was able to cling into (sic) appellant's short pants. PO3 Salisa then arrived and helped PO1 Sabo by informing appellant of his constitutional rights. PO1 Sabo placed her initials "JAS" on the confiscated shabu. PO1 Sabo also confiscated from appellant the buy bust money consisting of two (2) One Hundred Peso bills which bear the initials "JS" in the upper right portion of the bill.

Appellant was later brought to the Rizal Medical Center for physical examination. Thereafter, appellant was brought to the PNP headquarters. SPO2 Alexander Layno made a letter-request for laboratory examination of the specimen and sent it to the Pasig City Police Station, which were turned over to the PNP Crime Laboratory for examination. Per Chemisty Report No. D1698-o3E, issued by Forensic Chemist Analee R. Forro, the specimen was confirmed positive for methamphetamine hydrocloride, otherwise known as shabu, a prohibited drug. As per stipulation of the prosecution and defense counsel, the testimony of Analee R. Forro was dispensed with.³

The accused-appellant was then charged in the RTC with a violation of Section 5 of Republic Act No. 9165 under an information that alleged:chanRoblesvirtualLawlibrary

On or about September 4, 2003 in Pasig City, and within the jurisdiction of this Honorable Court, the accused, not being lawfully authorized by law, did then and there willfully, unlawfully, and feloniously sell, deliver, and give away to PO1 Janet Sabo y Ampuhan, a police poseur-buyer, one (1) heat-sealed transparent plastic sachet containing four (4) centigrams (0.04 gram) of white crystalline substance, which was found positive to the test for methamphetamine hydrochloride, a dangerous drug, in violation of the said law.

CONTRARY TO LAW.⁴

The accused-appellant pleaded not guilty to the information.

At trial, the accused-appellant denied the charges against him, and claimed instead that the arresting police officers had arrived and conducted a search of another house near the house of his sister where he was then watching a show on television with his niece and her three classmates. His version was culled by the CA from his testimony and the testimony of his niece Rosemarie Rosario, as follows:chanRoblesvirtualLawlibrary

In the afternoon of September 4, 2003, accused-appellant Fernando Geronimo was watching television at the second floor of the house of his sister. He was accompanied by his niece and the latter's three (3) classmates when all of a sudden, a man and a woman entered the house and proceeded upstairs. Thereafter, a woman (PO1 Sabo) asked the students if they knew "Bombong Taba". In turn, the students asked the accused-appellant if he xxx was "Bombong Taba" to which he xxx answered: "No." After the students informed the woman that they do not know "Bombong Taba" the duo went down.

Moments later, his niece went upstairs and informed him that there were policemen in his nearby house conducting a search. Upon the request of his niece, Fernando proceeded to his house where he noticed that his things were no longer in order. He asked his neighbor the identities of those who entered his house but the latter told him she did not know them. The accused-appellant was about to return inside the house to urinate when he heard a man whom he knew as "Mang Manny" shouted (sic) at him: "Hoy saan ka pupunta". Suddenly, the man approached and poked a gun on (sic) him. He then held back the accused-appellant's shorts, handcuffed him, and brought him to the mayor's office.

At around 1:00 to 2:00 o'clock in the afternoon of September 4, 2003, Rosemarie Rosario was inside their house and cooking for lunch. The accused-appellant together with the classmates of her sister were upstairs watching VCD. When Rosemarie went out of the house to buy something from the nearby store, she met five (5) men and a woman. After she came back from the store, she heard a woman uttered (sic): "hindi nyo ba nakita si Bong Taba, sige halughugin nyo na ang mga kwarto". Thereafter, the woman, who appears to be a lesbian, knocked at their door. When Rosemarie opened the door, the woman asked her the identities of those living there. The woman also asked her the identities of those who were upstairs to which Rosemarie answered: "My uncle and the students". Upon the request of the woman, Rosemarie accompanied her upstairs to see who were there. After she saw the accused-appellant and the students, the woman went downstairs and proceeded outside. Rosemarie on the other hand, peeped through the window where she saw the woman talking with a police officer. Thereafter, the woman's companion searched the house of his uncle. At that instance, Rosemarie went upstairs and informed his uncle about the search prompting the latter to went (sic) outside. Later, she saw her uncle being handcuffed by the policemen.⁵

As stated, the RTC found the accused-appellant guilty as charged on the basis that he had been caught in flagrante delicto illegally selling shabu, and disposed thusly:chanRoblesvirtualLawlibrary

WHEREFORE, the Court finds accused FERNANDO GERONIMO y AGUSTINE @ Nanding Bakulaw GUILTY beyond reasonable doubt of the crime of violation of Sec. 5, Art. II of R.A. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002 and imposes upon him the penalty of LIFE IMPRISONMENT and to pay a fine of Php500,000.00.

SO ORDERED.⁶

The RTC observed that the Prosecution had established the elements of illegal sale of shabu by showing that the accused-appellant had been caught in flagrante delicto during the buy-bust operation;⁷ that the arresting police officers had enjoyed the presumption of regularity in the performance of their official duties; that, in contrast, the accused-appellant's defense of denial had no weight because of his failure to show improper motive on the part of the police officers; that his allegation about his unlawful arrest had been a mere afterthought on his part because he had not thereafter taken any affirmative action against the police officers; and that he had not also called to the attention of the investigating prosecutor the manner of his illegal arrest during the inquest proceedings.⁸

Decision of the CA

On appeal, the CA upheld the conviction of the accused-appellant, concurring with the RTC that the Prosecution had established that the arrest was pursuant to a lawful buy-bust operation, for which the police officers did not need a warrant. It pointed out that he was estopped from assailing the illegality of his arrest by his failure to file a motion to quash the information before his arraignment, and by his entering a plea of not guilty and actively participating in the trial; and that his denial of the charge could not be given credence.

Ruling of the Court

The appeal has merit.

For a successful prosecution of illegal sale of dangerous drugs under Section 5 of R.A. No. 9165, the following elements must be satisfactorily established by the State, namely: (1) the identity of the buyer and the seller, the object of the sale, and the consideration; and (2) the delivery of the thing sold and the payment therefor.⁹ In the crime of illegal sale of dangerous drugs, the delivery of the illicit drug to the poseur-buyer and the receipt by the seller of the marked money consummate the illegal transaction.¹⁰ What matters is the proof that the transaction or sale actually took place, coupled with the presentation in court of the prohibited drug, the corpus delicti, as evidence.¹¹

It seemed sufficiently established that the policemen had apprehended the accused-appellant immediately after the consummation of the transaction between him and the poseur-buyer. His apprehension in due course led to the recovery of the marked money paid for the one sachet of white crystalline substance.

But grave doubts that infected the chain of custody cannot now be ignored or simply shunted aside as merely trivial. A scrutiny of the record is thus in order.

The procedure to be followed in the seizure and custody of prohibited drugs have been delineated in Section 21 of Republic Act No. 9165, to wit:chanRoblesvirtualLawlibrary

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;

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Complementing the foregoing, Section 21(a), Article II of the Implementing Rules and Regulations (IRR) of Republic Act No. 9165 states:chanRoblesvirtualLawlibrary

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(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;

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The foregoing rules require the marking of the seized drug immediately upon seizure. Such marking is the starting point in the custodial chain, because succeeding handlers of the seized drug or related items will use the marking as their reference. It further serves to segregate the marked evidence from the corpus of all other similar and related evidence from the time they are seized from the accused until they are disposed of at the end of the criminal proceedings, thereby obviating switching, "planting," or contamination of evidence.¹² It is also crucial in ensuring the integrity of the chain of custody.

Chain of custody is defined in Section 1(b) of Dangerous Drugs Board Regulation No. 1, Series of 2002¹³ thusly:chanRoblesvirtualLawlibrary

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;

A review of the records indicates that the aforestated procedure laid down by Republic Act No. 9165 and its IRR was not followed by the agents of the State. Several substantial lapses on the part of the buy-bust team are readily apparent. To start with, no photograph of the seized shabu was taken either at the place of the entrapment and arrest, or even later on after the buy-bust team had brought the accused-appellant to their office. The photograph would have visually preserved the seized shabu for proving the corpus delicti. Secondly, although PO1 Janet Sabo, the poseur-buyer, attested that she had placed her initials "JAS" on the confiscated shabu at the place of the entrapment right after the accused-appellant had been apprised of his constitutional rights by PO3 Hunilassan Salisa, none of the members of the buy-bust team saw the need to photograph the seized shabu and the confiscated buy-bust bills then and even later on. And, thirdly, no elected official, or member of the media, or representative of the Department of Justice was present.

The last paragraph of Section 21(a) of the IRR provides a saving mechanism to ensure that not every case of non-compliance irreversibly prejudices the State's evidence. It is significant to note, however, that the application of the saving mechanism to any particular situation is expressly conditioned upon the State rendering a fitting or suitable explanation of the lapse or gap in the compliance with the procedures.¹⁴ The explanation should at least disclose to the trial court the reason or reasons for the lapse or gap in compliance with the procedure considering that every step in the procedure is an essential link in the chain of custody.

Here, the Prosecution tendered no explanation of why none of the members of the buy-bust team had seen to the taking of any photograph of the seized shabu immediately after the arrest, or even afterwards. Likewise, there was no explanation given as to why they did not ensure the presence of an elected official, or member of the media, or representative of the Department of Justice during the entrapment and confiscation of the evidence. We should specially note at this juncture that the requirements were not unknown to the members of the buy-bust team, whom we must presume to have been well-instructed on the law demanding the preservation of the links in the chain of custody. They should then have dutifully seen to the compliance with the requirements, and if their compliance was not full, they should at least have the readiness to explain the step or steps omitted from such compliance.

Surely, the saving mechanism under the last paragraph of Section 21(a) of the IRR would not apply if there was no credible showing of any effort undertaken by the members of the buy-bust team to keep the shabu intact while in transit from the moment of seizure to the police station, and beyond, until the disposal of the shabu after the trial.

The procedural lapses committed by the buy-bust team as herein noted underscored the uncertainty about the identity and integrity of the shabu presented and admitted as evidence against the accused-appellant.¹⁵ They highlighted the failure of the Prosecution to establish the chain of custody, by which the incriminating evidence would have been properly authenticated. The unavoidable consequence of the non-establishment of the chain of custody was the serious doubt about the shabu presented as evidence at the trial being really the shabu supposedly seized from the accused-appellant.

In every prosecution of the sale and possession of methamphetamine hydrochloride or shabu prohibited under Republic Act No. 9165, the State carries the heavy burden of proving the elements of the offense, failing in which the State would not discharge its basic duty of proving the guilt of the accused beyond reasonable doubt. If the State does not establish the corpus delicti, such as when the dangerous drug subject of the prosecution is missing, or when substantial gaps in the chain of custody of the prohibited substance raise grave doubts about the authenticity of the prohibited substance presented as evidence in court, then the crime is not established beyond reasonable doubt.¹⁶ Indeed, any substantial gap renders the case for the State less than complete in terms of proving the guilt of the accused beyond reasonable doubt.¹⁷ Thus, the accused-appellant deserves acquittal due to the reasonable doubt that the lapses in the chain of custody engendered.

WHEREFORE, the Court REVERSES and SETS ASIDE the decision promulgated on April 27, 2007 in CA-G.R. CR-H.C. No. 01793; ACQUITS accused-appellant FERNANDO GERONIMO y AGUSTINE alias "NANDING BAKULAW" on the ground that his guilt was not established beyond reasonable doubt; and ORDERS his immediate release from confinement at the National Penitentiary in Muntinlupa City unless there are other lawful causes warranting his continuing confinement thereat.

The Court DIRECTS the Director of the Bureau of Corrections to implement the immediate release of FERNANDO GERONIMO y AGUSTINE alias "NANDING BAKULAW," and to report on his compliance within ten days from receipt.

No pronouncement on costs of suit.

SO ORDERED.

Velasco, Jr., Leonen, Martires, and Gesmundo, JJ., concur.

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NOTICE OF JUDGMENT

Sirs / Mesdames:

Please take notice that on August 23, 2017 a Decision, copy attached hereto, was rendered by the Supreme Court in the above-entitled case, the original of which was received by this Office on September 26, 2017 at 2:50 p.m.

Very truly yours, (SGD) WILFREDO V. LAPITAN Division Clerk of Court

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TO: The Director
�� � � Bureau of Corrections
������ 1770 Muntinlupa City

GREETINGS:

WHEREAS, the Supreme Court on August 23, 2017 promulgated a Decision in the above-entitled case, the dispositive portion of which reads:chanRoblesvirtualLawlibrary

"WHEREFORE, the Court REVERSES and SETS ASIDE the decision promulgated on April 27, 2007 in CA-G.R. CR-H.C. No. 01793; ACQUITS accused-appellant FERNANDO GERONIMO y AGUSTINE alias "NANDING BAKULAW" on the ground that his guilt was not established beyond reasonable doubt; and ORDERS his immediate release from confinement at the National Penitentiary in Muntinlupa City unless there are other lawful causes warranting his continuing confinement thereat.

The Court DIRECTS the Director of the Bureau of Corrections to implement the immediate release of FERNANDO GERONIMO y AGUSTINE alias "NANDING BAKULAW," and to report on his compliance within ten days from receipt.

No pronouncement on costs of suit.

SO ORDERED."

NOW, THEREFORE, You are hereby ordered to immediately release FERNANDO GERONIMO y AGUSTINE alias "NANDING BAKULAW" unless there are other causes for which he should be further detained, and to return this Order with the certificate of your proceedings within ten (10) days from notice hereof.

GIVEN by the Honorable PRESBITERO J. VELASCO, JR., Chairperson of the Third Division of the Supreme Court of the Philippines, this 23^rd day of August 2017.

Very truly yours, (SGD) WILFREDO V. LAPITAN Division Clerk of Court

Endnotes:

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¹Rollo, pp. 2-18; penned by Associate Justice Amelita G. Tolentino, with Associate Justices Lucenito N. Tagle and Mariflor P. Punzalan-Castillo concurring.

² CA rollo, pp. 10-15; penned by Judge Franchito N. Diamante.

³ Supra note 1, at 4-6.

⁴ CA rollo, p. 9.

⁵ Supra note 1, at 6-8.

⁶ CA rollo, at 15.

⁷ Id. at 14.

⁸ Id.

⁹People v. Sapitula, G.R. No. 209212, February 10, 2016, 784 SCRA 18, 24; People v. Enad, G.R. No. 205764, February 3, 2016, 783 SCRA 184, 196-197; People v. Casacop, G.R. No. 210454, January 13, 2016, 780 SCRA 645, 652; People v. Ros, G.R. No. 201146, April 15, 2015, 755 SCRA 518, 535.

¹⁰People v. Asislo, G.R. No. 206224, January 18, 2016, 781 SCRA 131, 146.

¹¹People v. Enad, supra, note 9; People v. Havana, G.R. No. 198450, January 11, 2016, 778 SCRA 524, 533; People v. Ros, supra note 9.

¹²People v. Coreche, G.R. No. 182528, August 14, 2009, 596 SCRA 350, 357.

¹³Guidelines on the Custody and Disposition of Seized Dangerous Drugs, Controlled Precursors and Essential Chemicals, and Laboratory Equipment pursuant to Section 21, Article II of the IRR of RA No. 9165 in relation to Section 81(b), Article IX of RA No. 9165.

¹⁴People v. Sanchez, G. R. No. 175832, October 15, 2008, 569 SCRA 194, 212.

¹⁵People v. Robles, G.R. No. 177220, April 24, 2009, 586 SCRA 647, 657.

¹⁶People v. Coreche, G.R. No. 182528, August 14, 2009, 596 SCRA 350, 356-357.

¹⁷People v. Sanchez, G. R. No. 175832, October 15, 2008, 569 SCRA 194, 221.