Philippine Supreme Court Jurisprudence

Before the Court is an ordinary appeal¹ filed by accused-appellant Melanie B. Mercader (Mercader) assailing the Decision² dated March 17, 2017 of the Court of Appeals (CA) in CA-G.R. CR-HC No. 08110, which affirmed the Decision³ dated October 3, 2015 of the Regional Trial Court of Antipolo City, Branch 73 (RTC) in Crim. Case Nos. 03-26511 and 03-26512 finding Mercader guilty beyond reasonable doubt of violating Sections 5 and 11, Article II of Republic Act No. (RA) 9165,⁴ otherwise known as the "Comprehensive Dangerous Drugs Act of 2002."

The Facts

The instant case stemmed from two (2) Informations⁵ filed before the RTC charging Mercader of the crime of Illegal Sale and Illegal Possession of Dangerous Drugs, respectively defined and penalized under Sections 5 and II, Article II of RA 9I65, the accusatory portions of which state:

Crim. Case No. 03-26511

That on or about the 8^th day of September 2003, in the City of Antipolo, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, not being authorized by law to sell or otherwise dispose of any dangerous drug, did, then and there willfully, unlawfully and knowingly sell, deliver and give away to POI Christopher Anos, who acted as a poseur buyer, One (1) heat sealed transparent plastic sachet containing 0.03 gram of white crystalline substance, for and in the (sic) consideration of the sum of P 200.00, which after the corresponding laboratory examination conducted by the PNP Crime Laboratory gave a positive result to the test for Methamphetamine Hydrochloride, also known as "shabu", a dangerous drug, in violation of the above-cited law.

CONTRARY TO LAW.⁶

Crim. Case No. 03-26512

That on or about the 8^th day of September 2003, in the City of Antipolo, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, without having been lawfully authorized by law to possess/use any dangerous drugs, did, then and there willfully, unlawfully and feloniously have in her possession, custody and control Two (2) heat sealed transparent plastic sachets containing 0.02 gram and 0.02 gram respectively and/or with total weight of 0.04 gram of white crystalline substance, which after the corresponding laboratory examination conducted thereon by the PNP Crime Laboratory both gave positive results to the test for Methamphetamine Hydrochloride, also known as "shabu", a dangerous drug, in violation of the above-cited law.

CONTRARY TO LAW.⁷

The prosecution alleged that at around five (5) o'clock in the afternoon of September 8, 2003, the Philippine National Police (PNP) of Marikina City received a report from a confidential informant that Mercader and her husband, alias "Tisoy," were selling drugs at their house located in Corazon Compound, Cogeo, Antipolo City. Acting upon this report, a buy-bust team was formed headed by Police Officer 2 Edwin Da�o (PO2 Da�o), together with Police Officer 1 (PO1) Christopher Anos (PO1 Anos) who was designated as the poseur-buyer, with PO1 Roberto Muega and PO1 Richie Gaerlan as back-ups. After conducting a pre-operation procedure and coordinating with the Philippine Drug Enforcement Agency (PDEA) and the PNP of Antipolo, the buy-bust team together with the confidential informant, proceeded to the target area. As soon as the informant saw Mercader, he approached her, introduced PO1 Anos as a buyer from Marikina, and asked if the latter could purchase shabu. Mercader asked how much PO1 Anos wanted and the latter replied "Dos lang, pang-gamit namin" as he handed to her the marked money. In turn, Mercader took from her right pocket a plastic sachet of suspected shabu. Upon receipt of the same, PO1 Anos tied his shoe lace, which was the pre-arranged signal, and the other police officers rushed in to arrest Mercader. At that point, Tisoy tried to come near them, but was warned by Mercader to run away. Subsequently, a preventive search was conducted on Mercader which yielded two (2) more plastic sachets of suspected shabu. Upon confiscation, PO1 Anos marked the items at the place of arrest with "LBM-CA BUY BUST," "LBM-CA POSS I," and "LBM-CA POSS II." Thereafter, the police officers brought her to the Marikina Police Station where they made a request for laboratory examination of the seized items. After securing the letter-request, PO1 Anos delivered the said items to the PNP Crime Laboratory Service where they were examined by Forensic Chemical Officer-Police Senior Inspector Annalee R. Porro who confirmed that they tested positive for the presence of methamphetamine hydrochloride, a dangerous drug.⁸

For her part, Mercader denied the charges against her, claiming that at around seven (7) o'clock in the evening of September 8, 2003, she was on her way home with her two (2) children when a police officer suddenly held her hand and accused her of selling drugs. Despite not finding drugs on her, she was forcibly taken to the police station of Marikina City where the police officers extorted money from her.⁹

The RTC Ruling

In a Decision¹⁰ dated October 3, 2015, the RTC ruled as follows: (a) in Crim. Case No. 03-26511, Mercader was found guilty beyond reasonable doubt of violating Section 5, Article II of RA 9165 and, accordingly, sentenced to suffer the penalty of life imprisonment and to pay a fine of P500,000.00; and (b) in Crim. Case No. 03-26512, Mercader was likewise found guilty beyond reasonable doubt of violating Section 11, Article II of RA 9165 and, accordingly, sentenced to suffer the penalty of imprisonment for twelve (12) years and one (1) day to twenty (20) years, and to pay a fine of P300,000.00.¹¹

The RTC held that the prosecution sufficiently established all the elements of both illegal sale and possession of dangerous drugs, through the testimonies of the police officers, showing that Mercader sold shabu to PO1 Anos during the buy-bust operation and had in her possession two (2) more plastic sachets containing the same. On the other hand, the RTC did not give credence to Mercader's defenses of denial and extortion for lack of substance. Moreover, the RTC ruled that the lack of prior surveillance and the failure to offer the marked monies as evidence, do not invalidate the buy-bust operation, since the integrity and evidentiary value of the confiscated items were properly preserved and the chain of custody sufficiently established to convict Mercader.¹²

Aggrieved, Mercader appealed¹³ to the CA.

The CA Ruling

In a Decision¹⁴ dated March 17, 2017, the CA affirmed Mercader's conviction for the crimes charged.¹⁵ It ruled that Mercader was validly arrested and that all the elements of the crimes of illegal sale and possession of dangerous drugs were duly proven by the prosecution.¹⁶ Moreover, the CA found that there was an unbroken chain of custody since PO1 Anos had in his possession the subject sachets from the time of their seizure until their turnover to the crime laboratory.¹⁷

Hence, this appeal.

The Issue Before the Court

The issue for the Court's resolution is whether or not the CA correctly upheld Mercader's conviction for illegal sale and illegal possession of dangerous drugs.

The Court's Ruling

The appeal is meritorious.

At the outset, it must be stressed that an appeal in criminal cases opens the entire case for review and, thus, it is the duty of the reviewing tribunal to correct, cite, and appreciate errors in the appealed judgment whether they are assigned or unassigned.¹⁸ "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."¹⁹

In this case, Mercader was charged with the crimes of illegal sale and illegal possession of dangerous drugs, respectively defined and penalized under Sections 5 and 11, Article II of RA 9165. Notably, in order to properly secure the conviction of an accused charged with illegal sale of dangerous drugs, the prosecution must prove: (a) the identity of the buyer and the seller, the object, and the consideration; and (b) the delivery of the thing sold and the payment.²⁰ Meanwhile, in instances wherein an accused is charged with illegal possession of dangerous drugs, the prosecution must establish the following elements to warrant his/her conviction: (a) the accused was in possession of an item or object identified as a prohibited drug; (b) such possession was not authorized by law; and (c) the accused freely and consciously possessed the said drug.²¹

Case law states that in both instances, it is essential that the identity of the prohibited drug be established with moral certainty, considering that the dangerous drug itself forms an integral part of the corpus delicti of the crime. Thus, in order to obviate any unnecessary doubt on its identity, the prosecution has to show an unbroken chain of custody over the same and account for each link in the chain of custody from the moment the drugs are seized up to its presentation in court as evidence of the crime.²²

Section 21, Article II of RA 9165 outlines the procedure which the police officers must follow when handling the seized drugs in order to preserve their integrity and evidentiary value.²³ Under the said section, prior to its amendment by RA 10640,²⁴ the apprehending team shall, among others, immediately after seizure and 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, 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 of the same, and the seized drugs must be turned over to the PNP Crime Laboratory within twenty-four (24) hours from confiscation for examination.²⁵ In the case of People v. Mendoza,²⁶ the Court stressed that "[w]ithout the insulating presence of the representative from the media or the Department of Justice, or any elected public official during the seizure and marking of the [seized 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 [said drugs] that were evidence herein of the corpus delicti, and thus adversely affected the trustworthiness of the incrimination of the accused. Indeed, the x x x presence of such witnesses would have preserved an unbroken chain of custody."²⁷

The Court, however, clarified that under varied field conditions, strict compliance with the requirements of Section 21, Article II of RA 9165 may not always be possible.²⁸ In fact, the Implementing Rules and Regulations (IRR) of RA 9165 � which is now crystallized into statutory law with the passage of RA 10640²⁹ provide that the said inventory and photography may be conducted at the nearest police station or office of the apprehending team in instances of warrantless seizure, and that non-compliance with the requirements of Section 21, Article II of RA 9165 � under justifiable grounds � will not render void and invalid the seizure and custody over the seized items so long as the integrity and evidentiary value of the seized items are properly preserved by the apprehending officer or team.³⁰ In other words, the failure of the apprehending team to strictly comply with the procedure laid out in Section 21, Article II of RA 9165 and its IRR does not ipso facto render the seizure and custody over the items as void and invalid, provided that the prosecution satisfactorily proves that: (a) there is justifiable ground for non-compliance; and (b) the integrity and evidentiary value of the seized items are properly preserved.³¹ In People v. Almorfe,³² the Court explained that for the above-saving clause to apply, the prosecution must explain the reasons behind the procedural lapses, and that the integrity and evidentiary value of the seized evidence had nonetheless been preserved.³³ Also, in People v. De Guzman,³⁴ it was emphasized that the justifiable ground for non-compliance must be proven as a fact, because the Court cannot presume what these grounds are or that they even exist.³⁵

Guided by the foregoing, the Court finds that the police officers committed unjustified deviations from the prescribed chain of custody rule, thereby putting into question the integrity and evidentiary value of the items purportedly seized from Mercader.

First, records reveal that the marking of the seized items was not done in the presence of any elected public official, as well as a representative from the DOJ and the media. Despite the failure to observe this requirement, no justifiable ground was given to explain such lapse. In fact, there is actually no mention of these required witnesses in this case.

Second, no physical inventory, as well as photography, of the seized items were taken. PO1 Anos admitted the lack of inventory when he testified that:

[Atty. Vilma Mendoza]: But you did not prepare any inventory during that time?

[PO1 Anos]: No, Ma'am.

Q: You did no take any list of the confiscated items from the suspect?

A: No, Ma'am.

Q: It was not recorded in the police blotter?

A: No, Ma'am.

x x x x³⁶ (Underscoring supplied)

Notably, PO2 Da�o contradictorily testified that PO1 Anos prepared a written inventory which Mercader signed. He likewise stated that photographs were taken of the items and existed in the file.³⁷ Despite the seemingly conflicting statements made by the police officers, it remains that nothing on the record shows that the required inventory or photography of the seized items was conducted. Besides, neither of the said documents mentioned by PO2 Da�o were offered in evidence before the trial court.³⁸

Case law states that the mere marking of the seized drugs, unsupported by a physical inventory and taking of photographs, and in the absence of the necessary personalities under the law, fails to approximate compliance with the mandatory procedure under Section 21, Article II of RA 9165.³⁹ It is well-settled that the procedure in Section 21 of RA 9165 is a matter of substantive law, and cannot be brushed aside as a simple procedural technicality.⁴⁰ Compliance under the rule ensures the integrity of the confiscated drug and clearly establishes the corpus delicti, failing in which, indicates the absence of an element of the crimes of illegal sale and illegal possession of dangerous drugs.⁴¹ "In both illegal sale and illegal possession of prohibited drugs, conviction cannot be sustained if there is a persistent doubt on the identity of the drug x x x [which] must be established with moral certainty."⁴² Consequently, the non-compliance with the chain of custody rule under the procedure set forth by law is a sufficient ground to acquit Mercader altogether.

As a final note, the Court finds it fitting to echo its recurring pronouncement in recent jurisprudence on the subject matter:

The Court strongly supports the campaign of the government against drug addiction and commends the efforts of our law enforcement officers against those who would inflict this malediction upon our people, especially the susceptible youth. But as demanding as this campaign may be, it cannot be more so than the compulsions of the Bill of Rights for the protection of liberty of every individual in the realm, including the basest of criminals. The Constitution covers with the mantle the guilty alike against any manner of high-handedness from the authorities, however praiseworthy their intentions.

Those who are supposed to enforce the law are not justified in disregarding the right of the individual in the name of order. Order is too high a price for the loss of liberty. x x x.⁴³

"In this light, prosecutors are strongly reminded that they have the positive duty to prove compliance with the procedure set forth in Section 21[, Article II] of RA 9165, as amended. As such, they must have the initiative to not only acknowledge but also justify any perceived deviations from the said procedure during the proceedings before the trial court. Since compliance with this procedure is determinative of the integrity and evidentiary value of the corpus delicti and ultimately, the fate of the liberty of the accused, the fact that any issue regarding the same was not raised, or even threshed out in the court/s below, would not preclude the appellate court, including this Court, from fully examining the records ofthe case if only to ascertain whether the procedure had been completely complied with, and if not, whether justifiable reasons exist to excuse any deviation. If no such reasons exist, then it is the appellate court's bounden duty to acquit the accused, and perforce, overturn a conviction."⁴⁴

WHEREFORE, the appeal is GRANTED. The Decision dated March 17, 2017 of the Court of Appeals in CA-G.R. CR-HC No. 08110 is hereby REVERSED and SET ASIDE. Accordingly, accused-appellant Melanie B. Mercader is ACQUITTED of the crimes charged. The Director of the Bureau of Corrections is ordered to cause her immediate release, unless she is being lawfully held in custody for any other reason.

SO ORDERED.

Carpio^*(Chairperson), Caguioa, and Reyes, Jr., concur.
Peralta, J., see separate concurring opinion.

Endnotes:

^* Senior Associate Justice (Per Section 12, Republic Act No. 296, The Judiciary Act of 1948, as amended)

¹ See Compliance with Notice of Appeal dated March 31, 2017; rollo, pp. 16-17.

² Id. at 2-15. Penned by Associate Justice Jose C. Reyes, Jr. with Associate Justices Stephen C. Cruz and Nina G. Antonio-Valenzuela concurring.

³ CA rollo, pp. 51-60: Penned by Acting Presiding Judge Leili C. Suarez.

⁴ Entitled "AN ACT INSTITUTING THE COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002, REPEALING REPUBLIC ACT NO. 6425, OTHERWISE KNOWN AS THE DANGEROUS DRUGS ACT OF 1972, AS AMENDED, PROVIDING FUNDS THEREFOR, AND FOR OTHER PURPOSES," approved on June 7, 2002.

⁵ Both dated September 10,2003. Records, pp. 1-2 and 21-22.

⁶ Id. at 1.

⁷ Id. at 21.

⁸ See CA rollo, pp. 53-55; and rollo, pp. 3-5. See also Physical Science Report No. D-1731-03E dated September 9, 2003; records, p. 9.

⁹ See CA rollo, pp. 55-56; and rollo, pp. 5-6.

¹⁰ CA rollo, pp. 51-60.

¹¹ Id. at 59-60.

¹² See id. at 56-59.

¹³ See Notice of Appeal dated February 11, 2016; records, p. 240.

¹⁴Rollo, pp. 2-15.

¹⁵ Id. at 15.

¹⁶ See id. at 8-12.

¹⁷ See id. at 13-15.

¹⁸ See People v. Dahil, 750 Phil. 212, 225 (2015).

¹⁹People v. Comboy, G.R. No. 218399, March 2, 2016,785 SCRA 512, 521.

²⁰People v. Sumili, 753 Phil. 342, 348 (2015).

²¹People v. Bio, 753 Phil. 730, 736 (2015).

²² See People v. Viterbo, 739 Phil. 593, 601 (2014).

²³People v. Sumili, supra note 20, at 349-350.

²⁴ Entitled "AN ACT TO FURTHER STRENGTHEN THE ANTI-DRUG CAMPAIGN OF THE GOVERNMENT, AMENDING FOR THE PURPOSE SECTION 21 OF REPUBLIC ACT NO. 9165, OTHERWISE KNOWN AS THE 'COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002,"' approved on July 15, 2014.

²⁵ See Section 21 (1) and (2), Article II of RA 9165.

²⁶ 736 Phil. 749 (2014).

²⁷ Id. at 764; emphases and underscoring supplied.

²⁸ See People v. Sanchez, 590 Phil. 214, 234 (2008).

²⁹ Section 1 of RA 10640 states:

SECTION 1. Section 21 of Republic Act No. 9165, otherwise known as the "Comprehensive Dangerous Drugs Act of2002", is hereby amended to read as follows:

"SEC. 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 dangerous drugs, controlled precursors and essential chemicals, instruments/paraphernalia and/or laboratory equipment shall, immediately after seizure and confiscation, conduct a physical inventory of the seized items and photograph the same in the presence of the accused or the persons from whom such items were confiscated and/or seized, or his/her representative or counsel, with an elected public official and a representative of the National Prosecution Service or the media 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, finally, That noncompliance of 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 and custody over said items.

x x x x"

³⁰ See Section 21 (a), Article II of the IRR of RA 9165. See also People v. Ceralde, G.R. No. 228894, August 7, 2017.

³¹ See People v. Goco, G.R. No. 219584, October 17, 2016, 806 SCRA 240, 252.

³² 631 Phil. 51 (2010).

³³ Id. at 60.

³⁴ 630 Phil. 637 (2010).

³⁵ Id. at 649.

³⁶ TSN, September 19, 2007, pp. 10-11.

³⁷ See TSN, November 24, 2010, pp. 11-12.

³⁸ See CA rollo, p. 52.

³⁹ See Lescano v. People, 718 Phil. 460, 476 (2016), citing, People v. Garcia, 599 Phil. 416, 429 (2009). See also People v. Pagaduan, 641 Phil. 432, 448-449 (2010).

⁴⁰ See People v. Macapundag, G.R. No. 225965, March 13, 2017, citing People v. Umipang, 686 Phil. 1024, 1038 (2012).

⁴¹ See Lescano v. People, supra note 39, at 472.

⁴² Id., citing People v. Lorenzo, 633 Phil. 393, 403 (2010).

⁴³People v. Go, 457 Phil. 885, 925 (2003), citing People v. Aminnudin, 246 Phil. 424, 434-435 (1988).

⁴⁴ See People v. Miranda, G.R. No. 229671, January 31, 2018.

SEPARATE CONCURRING OPINION

PERALTA, J.:

I concur with the ponencia in acquitting accused-appellant Melanie B. Mercader of the charges of illegal sale and illegal possession of dangerous drugs, or violation of Sections 5 and 11, Article II of Republic Act (R.A.) No. 9165,¹ respectively. As aptly noted by the ponencia, records reveal that the marking of the seized items was not done in the presence of any elected public official, as well as a representative from the Department of Justice (DOJ) and the media, and that no justifiable reason was proffered by the prosecution as to the non-observance of Section 21² of R.A. No. 9165. Moreover, despite the conflicting statements of the police officers, nothing on the record shows that the required inventory or photographing of the seized items was conducted, and neither of the said documentary evidence was offered in evidence before the trial court. Be that as it may, I would like to emphasize on important matters relative to Section 21 of R.A. No. 9165, as amended.

To properly guide law enforcement agents as to the proper handling of confiscated drugs, Section 21 (a), Article II of the Implementing Rules and Regulations (IRR) of R.A. No. 9165 filled in the details as to where the inventory and photographing of seized items had to be done, and added a saving clause in case the procedure is not followed:³

(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.

It bears emphasis that R.A. No. 10640,⁴ which amended Section 21 of R.A. No. 9165, now only requires two (2) witnesses to be present during the conduct of the physical inventory and taking of photograph of the seized items, namely: (a) an elected public official; and (b) either a representative from the National Prosecution Service or the media.

In her Sponsorship Speech on Senate Bill No. 2273, which eventually became R.A. No. 10640, Senator Grace Poe conceded that "while Section 21 was enshrined in the Comprehensive Dangerous Drugs Act to safeguard the integrity of the evidence acquired and prevent planting of evidence, the application of said Section resulted in the ineffectiveness of the government's campaign to stop the increasing drug addiction and also, in the conflicting decisions of the courts."⁵ Senator Poe stressed the necessity for the amendment of Section 21 based on the public hearing that the Senate Committee on Public Order and Dangerous Drugs had conducted, which revealed that "compliance with the rule on witnesses during the physical inventory is difficult. For one, media representatives are not always available in all corners of the Philippines, especially in the remote areas. For another there were instances where elected barangay officials themselves were involved in the punishable acts apprehended and thus, it is difficult to get the most grassroot-elected public official to be a witness as required by law."⁶

In his Co-sponsorship speech, Senator Vicente C. Sotto III said that in view of a substantial number of acquittals in drug-related cases due to the varying interpretations of prosecutors and judges on Section 21 of R.A. No. 9165, there is a need for "certain adjustments so that we can plug the loopholes in our existing law" and ensure [its] standard implementation."⁷ Senator Sotto explained why the said provision should be amended:

Numerous drug trafficking activities can be traced to operations of highly organized and powerful local and international syndicates. The presence of such syndicates that have the resources and the capability to mount a counter-assault to apprehending law enforcers makes the requirement of Section 21 (a) impracticable for law enforcers to comply with. It makes the place of seizure extremely unsafe for the proper inventory and photograph of the seized illegal drugs.

x x x x

Section 21 (a) of RA 9165 need to be amended to address the foregoing situation. We did not realize this in 2002 where the safety of the law enforcers and other persons required to be present in the inventory and photography of seized illegal drugs and the preservation of the very existence of seized illegal drugs itself are threatened by an immediate retaliatory action of drug syndicates at the place of seizure. The place where the seized drugs may be inventoried and photographed has to include a location where the seized drugs as well as the persons who are required to be present during the inventory and photograph are safe and secure from extreme danger.

It is proposed that the physical inventory and taking of photographs of seized illegal drugs be allowed to be conducted either in the place of seizure of illegal drugs or at the nearest police station or office of the apprehending law enforcers. The proposal will provide effective measures to ensure the integrity of seized illegal drugs since a safe location makes it more probable for an inventory and photograph of seized illegal drugs to be properly conducted, thereby reducing the incidents of dismissal of drug cases due to technicalities.

Non-observance of the prescribed procedures should not automatically mean that the seizure or confiscation is invalid or illegal, as long as the law enforcement officers could justify the same and could prove that the integrity and the evidentiary value of the seized items are not tainted. This is the effect of the inclusion in the proposal to amend the phrase "justifiable grounds." There are instances where there are no media people or representatives from the DOJ available and the absence of these witnesses should not automatically invalidate the drug operation conducted. Even the presence of a public local elected official also is sometimes impossible especially if the elected official is afraid or scared.⁸

However, under the original provision of Section 21 and its IRR, which is applicable at the time the appellant committed the crimes charged, the apprehending team was required to immediately conduct a physical inventory and photograph the drugs after their seizure and confiscation in the presence of no less than three (3) witnesses, namely: (a) a representative from the media, and (b) the DOJ, and; (c) any elected public official who shall be required to sign copies of the inventory and be given copy thereof. The presence of the three witnesses was intended as a guarantee against planting of evidence and frame up, as they were "necessary to insulate the apprehension and incrimination proceedings from any taint of illegitimacy or irregularity."⁹

The prosecution bears the burden of proving a valid cause for non-compliance with the procedure laid down in Section 21 of R.A. No. 9165, as amended. It has the positive duty to demonstrate observance thereto in such a way that during the trial proceedings, it must initiate in acknowledging and justifying any perceived deviations from the requirements of law.¹⁰ Its failure to follow the mandated procedure must be adequately explained, and must be proven as a fact in accordance with the rules on evidence. It should take note that the rules require that the apprehending officers do not simply mention a justifiable ground, but also clearly state this ground in their sworn affidavit, coupled with a statement on the steps they took to preserve the integrity of the seized items.¹¹ Its strict adherence to Section 21 is required where the quantity of illegal drugs seized is minuscule to prevent incidents of planting, tampering or alteration of evidence.¹² Here, the prosecution failed to discharge its burden.

With respect to the presence of all the required witnesses under Section 21 of R.A. No. 9165, the prosecution never alleged and proved 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 125¹³ 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.

Invocation of the disputable presumptions that the police officers regularly performed their official duty and that the integrity of the evidence is presumed to be preserved, will not suffice to uphold appellant's conviction. Judicial reliance on the presumption of regularity in the performance of official duty despite the lapses in the procedures undertaken by the agents of the law is fundamentally flawed because the lapses themselves are affirmative proofs of irregularity.¹⁴ The presumption may only arise when there is a showing that the apprehending officer/team followed the requirements of Section 21 or when the saving clause found in the IRR is successfully triggered. In this case, the presumption of regularity had been contradicted and overcome by evidence of non-compliance with the law.¹⁵

At this point, it is not amiss to express my position regarding the issue of which between the Congress and the Judiciary has jurisdiction to determine sufficiency of compliance with the rule on chain of custody, which essentially boils down to the application of procedural rules on admissibility of evidence. In this regard, I agree with the view of Hon. Associate Justice Teresita J. Leonardo-De Castro in People v. Teng Moner y Adam¹⁶ that "if the evidence of illegal drugs was not handled precisely in the manner prescribed by the chain of custody rule, the consequence relates not to inadmissibility that would automatically destroy the prosecution's case but rather to the weight of evidence presented for each particular case." As aptly pointed out by Justice Leonardo-De Castro, the Court's power to promulgate judicial rules, including rules of evidence, is no longer shared by the Court with Congress.

I subscribe to the view of Justice Leonardo-De Castro that the chain of custody rule is a matter of evidence and a rule of procedure, and that the Court has the last say regarding the appreciation of evidence. Evidentiary matters are indeed well within the powers of courts to appreciate and rule upon, and so, when the courts find appropriate, substantial compliance with the chain of custody rule as long as the integrity and evidentiary value of the seized items have been preserved may warrant the conviction of the accused.

I further submit that the requirements of marking the seized items, conduct of inventory and taking photograph in the presence of a representative from the media or the DOJ and a local elective official, are police investigation procedures which call for administrative sanctions in case of non-compliance. Violation of such procedure may even merit penalty under R.A. No. 9165, to wit:

Section 29. Criminal Liability for Planting of Evidence. - Any person who is found guilty of "planting" any dangerous drug and/or controlled precursor and essential chemical, regardless of quantity and purity, shall suffer the penalty of death.

Section 32. Liability to a Person Violating Any Regulation Issued by the Board. - The penalty of imprisonment ranging from six (6) months and one (1) day to four (4) years and a fine ranging from Ten thousand pesos (P10,000.00) to Fifty thousand pesos (P50,000.00) shall be imposed upon any person found violating any regulation duly issued by the Board pursuant to this Act, in addition to the administrative sanctions imposed by the Board.

However, non-observance of such police administrative procedures should not affect the validity of the seizure of the evidence, because the issue of chain of custody is ultimately anchored on the admissibility of evidence, which is exclusively within the prerogative of the courts to decide in accordance with the rules on evidence.

Endnotes:

¹AN ACT INSTITUTING THE COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002, REPEALING REPUBLIC ACT NO. 6425, OTHERWISE KNOWN AS THE DANGEROUS DRUGS ACT OF 1972, AS AMENDED, PROVIDING FUNDS THEREFOR, AND FOR OTHER PURPOSES.

² Sec. 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;

³People v. Ramirez, G.R. No. 225690, January 17, 2018.

⁴AN ACT TO FURTHER STRENGTHEN THE ANTI-DRUG CAMPAIGN OF THE GOVERNMENT, AMENDING FOR THE PURPOSE SECTION 21 OF REPUBLIC ACT NO. 9165, OTHERWISE KNOWN AS THE "COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002.

⁵ Senate Journal, Session No. 80, 16^th Congress, 1^st Regular Session, June 4, 2014, p. 348.

⁶Id.

⁷Id.

⁸Id. at 349-350.

⁹People v. Sagana, G.R. No. 208471, August 2, 2017.

¹⁰People v. Miranda, G.R. No. 229671, January 31, 2018; People v. Paz, G.R. No. 229512, January 31, 2018; and People v. Mamangon, G.R. No. 229102, January 29, 2018.

¹¹People v. Saragena, G.R. No. 210677, August 23, 2017

¹²Id.

¹³ Art. 125. Delay in the delivery of detained persons to the proper judicial authorities. � The penalties provided in the next preceding article shall be imposed upon the public officer or employee who shall detain any person for some legal ground and shall fail to deliver such person to the proper judicial authorities within the period of; twelve (12) hours, for crimes or offenses punishable by light penalties, or their equivalent; eighteen (18) hours, for crimes or offenses punishable by correctional penalties, or their equivalent and thirty-six (36) hours, for crimes, or offenses punishable by afflictive or capital penalties, or their equivalent.

¹⁴People v. Ramirez, supra note 3.

¹⁵People v. Gajo, G.R. No. 217026, January 22, 2018.

¹⁶ G.R. No. 202206, March 5, 2018.