Philippine Supreme Court Jurisprudence > Year 2018 > April 2018 Decisions > G.R. No. 217805, April 02, 2018 - PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. ALSARIF BINTAIB Y FLORENCIO A.K.A. "LENG," Accused-Appellant.:

We resolve the appeal from the 24 April 2015 Decision¹ of the Court of Appeals (CA) in CA-G.R. CR H.C. No. 01045-MIN. The CA affirmed the conviction of Alsarif Bintaib y Florencio a.k.a. "Leng" (Bintaib) for illegal sale of shabu.

THE FACTS

Bintaib was charged before the Regional Trial Court, Branch 13, Zamboanga City (RTC), in Criminal Case No. 23972 for violating Section 5 of R.A. No. 9165.² The Information dated 12 November 2008 reads:

That on or about November 11, 2008, in the City of Zamboanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, not being authorized by law to sell, deliver, give away to another, transport or distribute, any dangerous drug, did then and there willfully, unlawfully and feloniously sell and deliver to IO2 ABDULSOKOR S. ABDULGANI, a member of the Philippine Drug Enforcement Agency-9 (PDEA), Upper Calarian, Zamboanga City, who acted as poseur-buyer, one (1) heat-sealed transparent plastic sachet containing 0.0344 grams of white crystalline substance which when subjected to qualitative examination gave positive result to the tests for the presence of methamphetamine hydrochloride (shabu), knowing the same to be a dangerous drug.

CONTRARY TO LAW.³

On 7 August 2009, Bintaib, with the assistance of counsel, was arraigned and he entered a plea of not guilty. Pre-trial and trial on the merits followed.

The Prosecution's Evidence

The prosecution presented two (2) witnesses, namely: (1) Intelligence Officer 1 Maria Ni�a Belo (IO1 Belo), and (2) Intelligence Officer 2 Abdulsokor Abdulgani (IO2 Abdulgani). Their version of the facts are:

On 11 November 2008, at around 3:00 P.M., a confidential asset came to the PDEA Regional Office at Upper Calarian, Zamboanga City, and reported that a certain "Leng" was actively engaged in illegal drug transactions within the city. He also said that he had just recently bought shabu from Leng who agreed to sell the same to him again. Acting on this information, a buy-bust team was organized, among whom IO2 Abdulgani was designated as the poseur-buyer and IO1 Belo was to act as immediate back up and/or arresting officer.

At about 6:00 P.M., the buy-bust team proceeded to the target area where IO2 Abdulgani and the confidential asset waited for this certain Leng to arrive. Shortly thereafter, Bintaib approached them and spoke to the confidential informant in the Tausug language. The confidential informant then introduced IO2 Abdulgani to Bintaib and said: "Ito ang kaibigan ko, bibili." After Bintaib told IO2 Abdulgani to wait, he boarded a tricycle and left.

More than an hour later, Bintaib returned and handed IO2 Abdulgani a transparent plastic sachet containing a white crystalline substance. Suspecting the contents to be shabu, IO2 Abdulgani scratched his head to signal IO1 Belo and the rest of the PDEA operatives to aid in the arrest. Bintaib and the plastic sachet suspected to contain shabu were then brought to the PDEA Regional Office.

Upon arrival at their office, IO2 Abdulgani marked the plastic sachet with his initials "ASA" and then turned over the same to Intelligence Officer 3 Thessa B. Alba�o (IO3 Alba�o), who also marked the sachet with her initials "TBA." Afterwards, IO3 Alba�o conducted the physical inventory and took a photograph of Bintaib with the confiscated plastic sachet. Representatives from the media, the Depatment of Justice, and the local government signed the certificate of inventory. IO3 Alba�o also prepared the letter-request for laboratory examination which she brought with her, together with the seized item, to the crime laboratory.

In the chemistry report, the forensic chemist declared that the contents of the transparent plastic sachet contained 0.0344 grams of methamphetamine hydrochloride, otherwise known as shabu, a dangerous drug.

The Version of the Defense

Bintaib, on the other hand, narrates a different story:

At around 8:30 P.M. of the same day, Bintaib was drinking with his childhood friend at Blue Diamond located within the target area. When done, Bintaib and his friend left the place on a tricycle. Bintaib disembarked at a sari-sari store to buy TM load, but the storekeeper said they did not carry it.

While he was walking away from the sari-sari store, Bintaib noticed that he was being followed. When he turned around, someone who introduced himself as a PDEA agent punched him, poked a gun at him, and forced him to board a van. At the PDEA office, Bintaib was shown a sachet containing "alum or sugar," and was asked about the whereabouts of a person named "Val." Bintaib begged to be released because the sachet shown to him was not his and that he could not pinpoint Val's whereabouts. The following day, Bintaib was formally charged.


In its 28 October 2011 Decision,⁴ finding all the essential elements of illegal sale of drugs present and Bintaib's denial and alibi inherently weak, the RTC found him guilty as charged. Hence, the RTC ruled:

WHEREFORE, in light of all the foregoing, this Court finds accused ALSARIF BINTAIB Y FLORENCIO A.K.A. "LENG" GUILTY beyond reasonable doubt for violating Section 5, Article II of the Comprehensive Dangerous Drugs Act of 2002 (R.A. 9165) and sentences him to suffer the penalty of LIFE IMPRISONMENT and pay a fine of FIVE HUNDRED THOUSAND PESOS (P500,000.00) without subsidiary imprisonment in case of insolvency.

SO ORDERED.⁵

The RTC held that even if IO2 Abdulgani did not hand Bintaib money, it was established that they agreed that IO2 Abdulgani would buy shabu even before the drugs were handed to him. A clear manifestation that there was already an understanding between IO2 Abdulgani and Bintaib was the fact that the latter left after the conversation to get shabu and returned with a plastic sachet containing the drug. Further, the RTC said that the nonpayment by IO2 Abdulgani does not obviate the sale between them since payment is not an essential element of sale anyway.⁶

As for Bintaib's denial and alibi, the RTC did not give it much weight or credence because (1) he could not give a plausible explanation why he was at the scene of the crime when arrested; and (2) his testimony in itself was self-contradicting aside from being uncorroborated.

The Assailed CA Decision

On appeal, Bintaib argued that there was no valid buy-bust operation absent any consideration or payment in exchange for the shabu. He hinged on the fact that the prosecution failed to prove the existence of the marked money, suggesting that the operatives had no plan at all to purchase drugs.

With regard to the corpus delicti, Bintaib points out the procedural lapses committed by the PDEA operatives notably their noncompliance with the statutory safeguards: (1) the marking was done at the PDEA office and not immediately after the arrest at the crime scene; (2) the representatives from the media, Department of Justice, and the local government were not present during the actual physical inventory but only signed the certification after; (3) the prosecution failed to adduce any valid excuse for non-compliance; and (4) the investigator and forensic chemist failed to testify as to how they handled the seized drugs.

In the assailed decision, the CA affirmed in toto the RTC's decision. First, It held that the non-presentation of the buy-bust money is not fatal to the prosecution's case because the moment IO2 Abdulgani went through the entrapment operation as a buyer followed by Bintaib's act of delivery after accepting the offer of sale, the crime had already been consummated. Even granting that the sale did not take place, Bintaib's conviction stands because the very act of delivering, distributing, giving away, dispatching, and transporting a dangerous drug is penalized under Section 5 of R.A. No. 9165.⁷

Meanwhile, in addressing the alleged gaps in the chain of custody, the CA said:

The evidence on record does not support appellant's position. On the contrary, the records clearly show that the prosecution had sufficiently established the absence of a gap in the chain of custody and that the shabu was properly identified at the trial. To reiterate, during the buy-bust operation, Abdulgani received from the appellant the sachet containing the prohibited drug. At the office, Abdulgani marked the sachet of shabu "ASA." The designated investigator also marked the same sachet "TBA." After preparing the letter request, the same investigator personally delivered the item to the crime laboratory for forensic examination. The content of the seized sachet was tested by Forensic Chemist Ade-Lazo and was verified to be methamphetamine hydrochloride (shabu). Finally, during trial, the marked sachet of shabu was clearly identified by Abdulgani and Belo.

Truly, the foregoing facts confirmed that there was indeed no gap in the chain of custody of the shabu as the PDEA officers properly complied with the required procedure in the custody of the illegal drug. Verily, We see no doubt that the sachet marked "ASA" and "TBA," which was submitted for laboratory examination and later to be found positive for shabu, was the same one delivered by appellant to Abdulgani on November 11, 2008.

Accordingly, like the RTC, We hold that the integrity and the evidentiary value of the shabu coming from appellant was not compromised and that the prosecution was able to establish that the illegal drug presented in court was the very same specimen sold and delivered by appellant at the crime scene.

x x x�� x x x�� x x x

WHEREFORE, in light of all the foregoing, We AFFIRM in toto the RTC's decision dated November 9, 2011.⁸

From this CA decision, the case is now before us for final review.

OUR RULING

There is merit in this appeal.

In prosecuting an offense involving illegal drugs, the most crucial element that must be proven is the existence of the drugs itself; without it, there would not be any illegal drug violation to speak of. For illegal sale, the drug itself is the object of the sale; while in illegal possession, it is the very thing that is possessed by the accused. We often say that the dangerous drug constitutes the corpus delicti of the offense or the body of facts or evidence that a crime has been committed. We, therefore, have to carefully scrutinize the evidence on record and determine whether it is enough to reasonably establish the existence of the drug itself.

For this reason, both law and jurisprudence have set procedural guidelines on how confiscated drugs should be handled. The fact that the seized drug exists heavily relies on the preservation of its identity and integrity. The identity of the confiscated drugs is preserved when we can say that the drug presented and offered as evidence in court is the exact same item seized or confiscated from the accused at the time of his arrest. The preservation of the drug's integrity, on the other hand, means that its evidentiary value is intact as it was not subject to planting, switching, tampering or any other circumstance that casts doubt as to its existence.

To remove any doubt or uncertainty on the identity and integrity of the seized drugs, Section 21 of R.A. No. 9165 outlines the prescribed procedure on how to handle confiscated, seized, and/or surrendered dangerous drugs. Over the years, however, the lower courts have misapplied the rule set therein and, as a result, have come out with reversed decisions and improper convictions. We cannot entirely blame the lower courts because we ourselves have not come up with a standard. This is to be expected given that we evaluate each case differently as they have dissimilar factual circumstances. Nevertheless, this should not hinder us from strengthening ways on how we should resolve and dispose of illegal drugs cases.

Section 21 of R.A. No. 9165 provides:

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 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;

(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 items; Provided, that when the volume of dangerous drugs, plant sources of dangerous drugs, and controlled precursors and essential chemicals does not allow the completion of the testing within the time frame, a partial laboratory examination report shall be provisionally issued stating therein the qualities 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; [x x x]

As a general rule, the apprehending team must strictly comply with the procedure laid out above because the process itself is a matter of substantive law, which cannot be brushed aside as a simple technicality.⁹ These provisions were crafted to address potential police abuses by narrowing the window of opportunity for tampering with evidence.¹⁰

Under paragraph (1) of Section 21, the apprehending team shall, immediately after confiscation, conduct a physical inventory and photograph the seized items in the presence of the accused or the person from whom the items were seized, his representative or counsel, a representative from the media and the Department of Justice, and any elected public official. The Implementing Rules and Regulations (IRR) of R.A. No. 9165 mirrors Section 21(1) but also fill in the details as to where the physical inventory and photographing of the seized items had to be done:

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 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 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.¹¹ [emphasis and underscoring ours]

While the law allows the physical inventory and photographing to be done at the nearest police station, the presence of the insulating witnesses during this step is vital. Without the insulating presence of these persons, the possibility of switching, planting, or contamination of the evidence negates the credibility of the seized drug and other confiscated items.

In the present case, it appears that the media representative, DOJ representative, and the elected public official were only present during the time the certificate of inventory was prepared:

Q:	Mr. Witness, you mentioned right after the preparation of the booking sheet and arrest report, your office conducted the inventory, in other words, Mr. Witness, the representative from the media, from the Department of Justice were already there in that office?
A:	The OIC called them and after a while they arrived and that was the time they placed their signatures on the inventory, sir.
Q:	When you arrested the accused, Mr. Witness, did you ask him to have any representative?
A:	No, sir.
Q:	So, when you arrived at the office, can you recall if there was any representative of the accused?
A:	We just told him that he is allowed to call anybody but they never came, sir.
Q:	Did you also allow the accused to call any representative from outside?
A:	He refused.
Q:	Mr. Witness, you mentioned that you marked the shabu, why is it in the inventory the marking was not mentioned in the certificate of inventory?
A:	No, sir, we did not put it in the inventory sir, the marking.
Q:	Mr. Witness, when you signed the certificate of inventory, [were] the representative from the media, DOJ, and elected official already there?
A:	Yes, sir.12

Mere signature or presence of the insulating witness at the time of signing is not enough to comply with what is required under Section 21 of R.A. No. 9165. What the law clearly mandates is that they be present while the actual inventory and photographing of the seized drugs are happening. If we were to allow such circumvention of this requirement, we would open the floodgates to more mistaken drug convictions especially when planting evidence is a common practice.¹³

In People v. Pagaura,¹⁴ the Court said:

The court must be extra vigilant in trying drug cases lest an innocent person is made to suffer the unusually severe penalties for drug offenses. We are aware that in some instances law enforcers resort to the practice of planting evidence to extract information or even to harass civilians. Hence, the presumption that the regular duty was performed by the arresting officer could not prevail over the constitutional presumption of innocence of the accused.¹⁵

Hence, since the apprehending team failed to comply with Section 21 of R.A. No. 9165, the presumption of regularity cannot work in their favor. This presumption arises only upon compliance with Section 21 of R.A. No. 9165, or by clearly or convincingly explaining the justifiable grounds for noncompliance.¹⁶ Anything short of observance and compliance by the arresting officers with what the law required means that the former did not regularly perform their duties.¹⁷ Judicial reliance on the presumption of regularity in the performance of official duty despite the lapses in the procedures undertaken is fundamentally unsound because the lapses themselves are affirmative proofs of irregularity.¹⁸

On this note, the saving clause in the IRR, which is now incorporated in Section 21 of R.A. No. 9165, as amended by R.A. No. 10640, may operate because non-compliance with the prescribed procedural requirements would not automatically render the seizure and custody of the illegal drug invalid. However, this is true only when: (1) there is a justifiable ground for such noncompliance; and (2) the integrity and evidentiary value of the seized item/s are preserved.¹⁹

In the instant case, the prosecution failed to satisfy both conditions. First, the prosecution did not offer any kind of evidence explaining why the insulating witnesses were not present during the actual inventory or, at least, clarify that they were indeed there and witnessed everything. Instead, what came out of IO2 Abdulgani's testimony was that the media representative, DOJ representative, and elected public official only signed the certificate of inventory without saying they had actually witnessed the process. Second, the prosecution failed to establish an unbroken chain of custody over the confiscated item.

In People v. Gonzalez,²⁰ the Court explained that:

The first stage in the chain of custody rule 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 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 confiscated or recovery of the dangerous drugs or related items is indispensable in the preservation of their integrity and evidentiary value.²¹

The prosecution's version is that IO2 Abdulgani only marked the item he bought from Bintaib at the police station and not immediately after the latter's arrest. The marking was done after a reasonable time of travel from the place of arrest to the police station. Notably, the marking was not done at the place of arrest even if IO2 Abdulgani could have easily placed his initials considering he had backup with him and there was no serious threat to their safety or possibility for Bintaib to escape. At this stage in the chain, there was already a significant break such that there could be no assurance against switching, planting or contamination. We have previously held that "failure to mark the drugs immediately after they were seized from the accused casts doubt on the prosecution evidence warranting an acquittal on reasonable doubt."²²

As a final note, we must remember that the burden of proof in criminal cases never shifts and the accused is entitled to an acquittal, unless his guilt is proven beyond reasonable doubt. In discharging this burden, the prosecution's duty is to prove each and every element of the crime charged in the information to warrant a finding of guilt. As an element of the crime, the preservation of the corpus delicti is essential in sustaining a conviction for illegal sale of dangerous drugs. Therefore, the prosecution has the duty to prove compliance with the prescribed procedural requirement under Section 21 of R.A. No. 9165 and, should there be noncompliance, to establish that there was an unbroken chain of custody. Otherwise, the accused, like Bintaib, is entitled to an acquittal.

WHEREFORE, premises considered, the 24 April 2015 Decision of the Court of Appeals in CA-G.R. CR H.C. No. 01045-MIN is REVERSED and SET ASIDE. Alsarif Bintaib y Florencio a.k.a. "Leng" is hereby ACQUITTED for failure of the prosecution to prove his guilt beyond reasonable doubt. He is ordered immediately RELEASED from detention, unless he is detained upon orders of other courts or for any other lawful cause.

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

SO ORDERED.

Velasco, Jr., (Chairperson), Bersamin, Leonen, and Gesmundo, JJ., concur.

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NOTICE OF JUDGMENT

Sirs / Mesdames:

Please take notice that on April 2, 2018 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 April 23, 2018 at 9:30 a.m.

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

---

TO: The Director
����� BUREAU OF CORRECTIONS
� ��� 1770 Muntinlupa City

Thru: PIS Danilo Dador
�Acting Superintendent
�SAN RAMON PRISON AND PENAL FARM
�Sitio San Ramon, Brgy. Talisayan
�7000 Zamboanga City

GREETINGS:

WHEREAS, the Supreme Court on April 2, 2018 promulgated a Decision in the above-entitled case, the dispositive portion of which reads:

"WHEREFORE, premises considered, the 24 April 2015 Decision of the Court of Appeals in CA-G.R. CR H.C. No. 01045-MIN is REVERSED and SET ASIDE. Alsarif Bintaib y Florencio a.k.a. "Leng" is hereby ACQUITTED for failure of the prosecution to prove his guilt beyond reasonable doubt. He is ordered immediately RELEASED from detention, unless he is detained upon orders of other courts or for any other lawful cause.

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

SO ORDERED."

NOW, THEREFORE, You are hereby ordered to immediately release ALSARIF BINTAIB y FLORENCIO A.K.A. "LENG" unless there are other lawful causes for which he should be further detained, and to return this Order with the certificate of your proceedings within five (5) 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 2^nd day of April 2018.

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

Endnotes:

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¹ CA rollo, pp. 99-108.

² The Comprehensive Dangerous Drugs Act of 2002.

³ RTC records, pp. 1-2.

⁴ Id. at 76-85.

⁵ Id. at 85.

⁶ Id. at 82-83.

⁷ CA rollo, p. 104.

⁸ Id. at 105-108.

⁹Rontos v. People, 710 Phil. 328, 335 (2013) citing People v. Umipang, 686 Phil. 1024, 1038 (2012); People v. Sabdula, 733 Phil. 85-102 (2014).

¹⁰People v. Umipang, 686 Phil.� 1024, 1038-1039 (2012); People v. Coreche, 612 Phil. 1238-1253 (2009).

¹¹ In R.A. No. 106640, the amendment to Section 21 of R.A. No. 9165 was introduced where the last proviso in the IRR was incorporated in the law itself.

¹² TSN, 21 April 2010, pp. 29-31.

¹³Valdez v. People, 563 Phil. 934, 956 (2007); People v, Dela Cruz, 666 Phil. 593, 619 (2011); Arcilla v. Court of Appeals, 463 Phil. 914-925 (2003); People v. Pagaura, 334 Phil. 683, 689-690 (1997).

¹⁴ 334 Phil. 683-690 (1997).

¹⁵ Id. at 689-690.

¹⁶People v. Barte, G.R. No. 179749, 1 March 2017.

¹⁷ Id.

¹⁸People v. Mendoza, 736 Phil. 749, 770 (2014).

¹⁹People v. Casacop, 778 Phil. 369-378 (2016); People v. Akmad, 713 Phil. 581, 589 (2015); People v. Flores, 765 Phil. 535, 541 (2015).

²⁰ 708 Phil. 121-133 (2013).

²¹ Id. at 130-131.

²²People v. Ismael, G.R. No. 208093, 20 February 2017 citing People v. Umipang, 686 Phil. 1024, 1050 (2012).