G.R. No. 253610 - PEOPLE OF THE PHILIPPINES, PLAINTIFF APPELLEE V. ALLEN REY BAOY Y GO, ACCUSED- APPELLANT

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PEOPLE OF THE PHILIPPINES, PLAINTIFF颅 APPELLEE V. ALLEN REY BAOY Y GO, ACCUSED- APPELLANT

<DIV ALIGN=JUSTIFY>FIRST DIVISION

Sirs/Mesdames:

Please take notice that the Court, First Division, issued a Resolution dated November 11, 2021 which reads as follows:

"G.R. No. 253610 (People of the Philippines, plaintiff颅 appellee v. Allen Rey Baoy y Go, accused- appellant).

This is an automatic appeal of the December 13, 2019 Decision[1] of the Court of Appeals (CA) in CA-G.R. CR-HC No. 10476. The CA affirmed the November 28, 2017 Decision2 of the Regional Trial Court of Binangonan, Rizal, Branch 69 (RTC), finding Allen Rey Baoy y Go (accused- appellant) guilty of illegal sale and possession of dangerous drugs.

<CENTER>Antecedents</CENTER>

In separate informations, accused-appellant was charged of violating Sections 5 and 11, Article II of Republic Act (R.A.) No. 9165:[3]

For Criminal Case No. 15-316:

That on or about the P1 day of July 2015, in the Municipality of Angono, Province of Rizal, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, not being authorized by law, did, then and there willfully, unlawfully and knowingly sell and deliver to PO1 Ronnie N. Taguibao [(POI Taguibao)], a poseur[-]buyer, one (1) plastic sachet, marked "AGB" containing 0.02 gram of white crystalline substance for a consideration of Php200.00, which after the corresponding laboratory examination conducted by the Crime La oratory, P P, Rizal Provincial Crime Laboratory Office on the white crystalline substance, gave 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.

For Criminal Case No. I5-317:

That on or about the 1st day of July 2015 in the Municipality of Angono, Province of Rizal, Philippines ad within the jurisdiction of this Honorable Court, the above-named accused, n?t being lawfully authorized to possess/use any dangerous drug, d1d, then and there willfully, unlawfully and knowingly have in his possession, custody and control one (1) heat-sealed transparent plastic sachet marked "AGB-1", containing 0.03 gram of white crystalline substance, which after the corresponding laboratory examination conducted by the Crime Laboratory, PNP, Rizal Provincial Crime Laboratory Office, on the white crystalline substance gave positive result to the tests for Methamphetamine Hydrochloride, also known as shabu, a dangerous drug, in violation of the above-cited law.

CONTRARY TO LAW.[4]

The cases were consolidated. During arraignment, accused颅 appellant pleaded not guilty to the charges. After the termination of the pre-trial conference, trial ensued.

The RTC narrated the facts as follows:

On June 30, 2015, at around 10:35 p.m., the Angono police received a tip that [accused-appellant] was drug dealing at Sitio Pinagpala, Barangay Kalayaan, Angono, Rizal. After receiving the tip, [PO1 Taguibao] was tasked to conduct a buy-bust operation against him where he would act as poseur[-] buyer. After preparing the buy-bust money, the necessary paperwork and PDEA coordination, [POI Taguibao], his [backups] and his informant, went to Sitio Pinagpala x x x. When they got there, the informant pointed to [accused-appellant] and [POl Taguibao] approached him. As he did, [accused-appellant] asked if he wanted to buy shabu and [PO1 Taguibao] said he wanted to buy P200.00 worth of shabu, handed him P200.00 buy-bust money which [accused颅 appellant] took and he then gave him a deck of shabu. [POl Taguibao] then signaled his [backups], introduced himself as a cop and arrested [accused-appellant]. [POI Taguibao] then frisked [accused-appellant] and recovered from him another deck of shabu along with the buy-bust money. Because [accused-appellant] was resisting arrest, they decided to bring him to the Angono police station and there [PO1 Taguibao] marked the deck of shabu he bought as "AGB" and the one he recovered from him as "AGB-1" and after conducting inventory, documentation, booking and processing [accused-appellant], [POl Taguibao] delivered the drugs to the crime lab on the same day for forensic examination where "AGB" and "AGB-1" tested positive for 0.02 and 0.03 [gram] of Methamphetamine Hydrochloride or shabu[,] respectively. [Accused-appellant] vehemently denies this and claims that he was minding his own business eating his dinner on June 28, 2015 and when he went out for a smoke, police suddenly arrested him for no reason[.][5]

<CENTER>The RTC Ruling</CENTER>

In its November 28, 2017 Decision, the RTC found accused颅 appellant guilty of both charges:

<BLOCKQUOTE>In light of this, we find [accused-appellant] GUILTY beyond reasonable doubt of violating Section 5, Article II, R.A. No. 9165 and sentence him to suffer a penalty of life imprisonment and to pay a fine ofP500,000.00. We also find [accused-appellant] GUILTY beyond reasonable doubt of violating Section 11, Article II, R.A. No. 9165 and illegally possessing 0.03 [gram] of Methamphetamine Hydrochloride or shabu and accordingly sentence him to suffer an indeterminate penalty of 12 years and I day as minimum to 13 years as maximum and to pay a fine of P300,000.00.

xxxx

SO ORDERED.[6]</BLOCKQUOTE>

The RTC found that the prosecution was able to prove the elements of the offenses, as well as the preservation of the integrity of the drugs seized from accused-appellant. It dismissed accused颅 appellant's defense of denial and allegation of frame-up as "last ditch concoctions to save his skin," and ruled that such "incredible tale" cannot overcome the straightforward and candid testimony of PO1 Taguibao, which was "unshaken by cross-examination and unflawed by inconsistencies or contradictions in its material points."[7]

Accused-appellant appealed his conviction to the CA. Citing People v. Pagaura,[8] he argued as without merit the prosecution's claim that upon simply hearing PO1 Taguibao utter the word "tobatz," accused-appellant immediately replied "dos" and thereafter, the sales transaction was consummated. Accused-appellant claimed that this incredible claim casts uncertainty as to whether there was actually a sale; hence, he was not validly arrested and there was no basis to search him. He further argued that the apprehending officers failed to comply with the chain of custody rules, i.e., the marking of the alleged seized drugs was not immediately done after apprehension and none of the necessary witnesses were present during the inventory, thereby placing doubt on the identity of the corpus delicti.[9]

The People, through the Office of the Solicitor General (OSG), countered that "the manner by which drug pushers sell illegal substance has evolved over the last years" and "it is, therefore, not improbable for him, like many others, to have offered the seized illegal drugs so blatantly." The OSG posited that accused-appellant was arrested in flagrante delicto, an instance of a valid warrantless arrest and, therefore, the eventual seizure of the contraband found on his person may be admitted against him. It added that accused颅 appellant is estopped from questioning the validity of his arrest given his failure to object before arraignment and his voluntary submission to the jurisdiction of the RTC. On the issue of chain of custody, the OSG asserted that the law allows the marking of the seized item to be done at the police station; and that absence of the required witnesses during the inventory was justified. As explained by PO1 Taguibao, "it was already late at night and [accused-appellant] was resisting." It maintained that the lapses in the observance of the chain of custody rule did not invalidate the seizure and custody of the seized drugs as the prosecution was able to prove all the links in the chain of custody. [10]

<CENTER>The CA Ruling</CENTER>

In its December 13, 2019 Decision, theCA affirmed the ruling of the RTC:

ACCORDINGLY, the appeal is hereby DENIED.

The Decision dated 28 November 2017 of the Regional Trial Court, Branch 69, Binangonan, Rizal, finding [accused颅 appellant] guilty for Violation of Sections 5 and 11, Article II of Republic Act ("R.A.") No. 9165 in Criminal Case No. 15-316 and Criminal Case No. 15-317 is AFFIRMED.

SO ORDERED. [11]

The CA agreed with the finding of the RTC that all of the elements of illegal sale and illegal possession of dangerous drugs were proven by the prosecution's evidence. It ruled that accused- appellant's assertions relative to the incredibility of the prosecution's version of the events deserve no merit as "the mere fact of delivery of illegal drugs prove the illegal transaction," and "no evidence [was] presented to justify [his] possession of illegal drugs." [12] The CA also agreed with the OSG that accused- appellant is already estopped from assailing the irregularity of his arrest when he failed to raise the issue or to move to quash the information prior to his arraignment. It likewise noted that accused- appellant was arrested after the police officers conducted a successful buy-bust operation against him; thus, the arrest being valid, the drugs seized from him as a result of the subsequent search on his person are admissible as evidence. [13]

As regards the issue of chain of custody, theCA, again, rejected accused-appellant's arguments. It found the noncompliance with the procedure for marking and requirement for witnesses during the inventory as justified, given that accused-appellant was resisting arrest and the police officers were inhibited by time constraints in securing the presence of the witnesses, [14] respectively. [15]

As to the penalty, the CA found the penalty imposed by the RTC to be in accord with the law.

On November 23, 2020, the Court required the parties to file their respective supplemental briefs should they so desire. 16 Both parties dispensed with the filing of supplemental briefs and adopted their respective briefs filed before the CA. [17]

<CENTER>The Court's Ruling</CENTER>

The appeal has merit.

In cases of illegal sale and illegal possession of dangerous drugs, the dangerous drugs seized from the accused constitute the corpus delicti of the offense. Thus, it is of utmost importance that the integrity and identity of the seized drugs must be shown to have been duly preserved. The chain of custody rule performs this function as it ensures that unnecessary doubts concerning the identity of the evidence are removed.[18]

Sec. 21, Art. II of R.A. No. 9165 lays down the chain of custody rule, outlining the procedures police officers must follow in handling seized drugs to preserve their integrity and evidentiary value. The said provision was later amended by R.A. No. 10640[19] which took effect on August 7, 2014. Since the offenses charged were allegedly committed on July 1, 2015, R.A. No. 10640 should apply in this case.20 Sec. 21 of R.A. No. 10640 provides:

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 person/s 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.

The procedure enshrined in Sec. 21 of R.A. No. 10640 is a matter of substantive law that cannot be set aside as a simple procedural technicality.21 This mandate notwithstanding, the law allows noncompliance in certain cases where the following requisites are present: (1) the existence of justifiable grounds to allow departure from the rule on strict compliance; and (2) the integrity and the evidentiary value of the seized items are properly preserved by the apprehending team. In these exceptional cases, the seizures and custody over the confiscated items shall not be rendered void and invalid. For this saving clause to be operative, these exceptional circumstances must be alleged and proved.[22]

Anent the witness requirement, noncompliance may be permitted if the prosecution proves that the apprehending officers exerted genuine and sufficient efforts to secure the presence of such witnesses, albeit they eventually failed to appear. While the earnestness of these efforts must be examined on a case-to-case basis, the overarching objective is for the Court to be convinced that the failure to comply was reasonable under the given circumstances. Thus, mere statements of unavailability, absent actual serious attempts to contact the required witnesses, are unacceptable as justified grounds for noncompliance.[23]

R.A. No. 10640 is explicit. The marking, physical inventory, and photographing of the seized items by the apprehending team shall be conducted immediately after seizure and confiscation, and in the presence of the accused or the persons from whom such items were confiscated and/or seized, or his/her representative or counsel, as well as (a) an elected public official; and (b) a representative of the National Prosecution Service (NPS) or the media.[24]

In this case, the prosecution attempted to justify the noncompliance with the chain of custody rule - the marking and inventory was conducted at the police station without the presence of any of the necessary witnesses -by pinning the blame on accused颅 appellant for resisting arrest; and because it was already late at night for the police officers to secure the presence of the required witnesses. PO1 Taguibao testified:

A When I already got the small plastic sachet contammg suspected shabu, I grabbed his arm and I introduced myself as a police officer, sir.

Q After introducing yourself as policeman, what happened next? A With the help of my [backup], my companion P02 Tarrayo, after introducing myself, we already handcuffed the accused, sir.

Q And what did you recover from that person, if any, when you handcuffed him? A While frisking him and frisking his maong pants, I recovered from his right pocket a plastic sachet containing suspected shabu together with the marked money, sir.

Q So, after recovering another plastic sachet and the marked money from that suspect, what happened next? A Because he was resisting, we decided to bring him to the police station for investigation and to file the proper charges against him, sir.25

xxxx

Q What is the reason, Mr. Witness, that no media representative and elected official who witnessed this inventory? A We tried to look for a media representative but we failed to do so because it was already late at night and the accused was resisting, sir.[26] (emphasis supplied)

The Court has consistently emphasized 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."'[27]

In People v. Retada,[28] the Court reiterated that the prosecution has the burden of proving the police officers' compliance with Sec. 21 of R.A. No. 10640 and providing a sufficient explanation in case of noncompliance. Citing People v. Lim,[29] the Court enumerated instances where noncompliance with the witness rule may be justified:

<BLOCKQUOTE>(1) their attendance was impossible because the place of atTest 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 eff0rts to secure the presence of a DOJ or media representative and an elected public official within the period required under Article 125 of the Revised Penal Code prove futile through no fault of the arresting officers, who face the threat of being charged with arbitrary detention; or (5) time constraints and urgency of the anti颅 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.</BLOCKQUOTE>

Records show that the prosecution did not offer any explanation if serious attempts had been made by the police to secure the presence of other representatives.[30] Moreover, none of the exempting instances enumerated above avails in this case. The excuses proffered by the prosecution - that it was already late at night and that accused颅 appellant was resisting arrest - are feeble and unconvincing. PO1 Taguibao, in his testimony, did not even address if there was an attempt to contact and secure the attendance of a representative from the NPS and of an elected official. In addition, it could be surmised from POl Taguibao's testimony that they only tried to look for a media representative when they had already arrested accused颅 appellant.[31]

Time and again, the Court has held that the practice of police operatives of not bringing to the intended place of arrest the three witnesses, when they could easily do so, and "calling them in" to the place of inventory to witness the inventory and photographing of the drugs only after the buy-bust operation has already been finished, does not achieve the purpose ofthe law in having these witnesses prevent or insulate against the planting of drugs.[32]

In People v. Lim,[33] the accused was acquitted on reasonable doubt due to the prosecution's failure to establish the details of an earnest effort to coordinate with and secure the presence of the required witnesses. Similarly, in this case, not even one of the necessary witnesses was present during the marking, inventory, and photographing of the seized drugs.

In People v. Ruiz,[34] aside from doubts on one of the links in the chain of custody, the accused was acquitted because the marking of the seized items was done without the presence of any of the required witnesses. Further, only a media representative was present during the inventory at the police station. The Court stressed that the mandate of R.A. No. 10640 is clear that there be the presence of at least two witnesses during the inventory and photographing of the seized items. The sole presence of a media representative will not suffice as compliance.

The presence of the insulating witnesses during inventory is vital. In the absence of these persons, the possibility of switching, planting, or contamination of the evidence negates the credibility of the seized drug and other confiscated items. Noncompliance with the requirement is, therefore, fatal to the prosecution's case and warrants acquittal.[35]

In fine, the condition sine qua non for the saving clause to become operational was not complied with. For the same reason, the proviso "so long as the integrity and evidentiary value of the seized items are properly preserved," too, will not come into play. Absent any acceptable explanation for the deviation from the procedural requirements of the chain of custody rule, the corpus delicti cannot be deemed preserved.[36]

All told, the Court finds it apt to acquit accused-appellant of the charges.

WHEREFORE, the appeal is GRANTED. The December 13, 2019 Decision of the Court of Appeals in CA-G.R. CR HC No. 10476, affirming the November 28, 2017 Decision of the Regional Trial Court of Binangonan, Rizal, Branch 69, is REVERSED and SET ASIDE. Allen Rey Baoy y Go is hereby ACQUITTED of the charges of illegal sale and illegal possession of dangerous drugs in Criminal Case Nos. 15-316 and 15-317, respectively, for failure ofthe prosecution to prove his guilt beyond reasonable doubt.

The Director General of the Bureau of Corrections, Muntinlupa City is ORDERED to IMPLEMENT this Resolution unless Allen Rey Baoy y Go is being lawfully held for any other reason, and to INFORM the Court of the date of his actual release from confinement within five (5) days from receipt hereof.

Let entry of judgment be issued immediately.

SO ORDERED."

<table width="100%" border="0" align="center"> <tr valign="top"> <td> </td> <td> </td> <td>By authority of the Court:</td> </tr> <tr valign="top"> <td width="66%"> </td> <td width="2%"> </td> <td width="32%"> </td> </tr> <tr valign="top"> <td> </td> <td> </td> <td>(Sgd.) LIBRADA C. BUENA Division Clerk of Court</td> </tr> <tr valign="top"> <td> </td> <td> </td> <td> </td> </tr> <tr valign="top"> <td> </td> <td colspan="2">by:</td> </tr> <tr valign="top"> <td> </td> <td> </td> <td> </td> </tr> <tr valign="top"> <td> </td> <td> </td> <td>MARIA TERESA B. SIBULO Deputy Division Clerk of Court</td> </tr> </table>

<HR ALIGN="LEFT" WIDTH="60%" SIZE="1" NOSHADE>

[1] Rollo, pp. 3-21; penned by Associate Justice Louis P. Acosta, with Associate Justices Ramon M.
Bato, Jr. and Nina G. Antonio-Valenzuela, concurring.

[2] CA rolla, pp. 61-63; rendered by Acting
Presiding Judge Dennis Patrick Z. Perez.

[3] Comprehensive Dangerous Drugs Act of 2002.

[4] Rollo, pp. 4-5.

[5] CA rollo, p. 61 .

[6] Id. at 63.

[7] Id. at 62.

[8] 334 Phil. 683, 688 ( 1997). In this case, the Court found the testimonies of the prosecution witnesses improbable and incredible as it is "rather foolish that one who peddles illegal drugs, would boldly and unashamedly present his wares to total strangers lest he be caught in flagrante."

[9] CA rollo, pp. 52-58.

[10] Id. at 94-106.

[11] Rollo, p. 21.

[12] Id. at 7-12.

[13]Id. at 12-13.

[14] Id. at 16-17. According to the CA, "it was around 10:35 o'clock in the evening of 30 June 2015 when the police officers of Angono, Rizal, received a tip from a confidential informant that [accused-appellant] was dealing drugs at Sitio Pinagpala" and the buy-bust operation was immediately planned and took place "at around 12:40 A.M ofthe following day, I July 2015."

[15] Id. at 13-18.

[16] Id. at 28-29.

[17] Id. at 30-34; 36-39.

[18] People v. Hilario, 823 Phil. 580, 594 (2018), citing People v. Ismael, 806 Phil. 21, 29 (2017).

[19] 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.

[20] See People v. Ambrosio, G.R. No. 234051, November 27, 2019.

[21] See People v. Lim, G .R. No. 231989, September 4, 2018; see also People v. Pascua, G.R. No. 227707, October 8, 2018 and People v. Ocampo, 838 Phil. 157 (2018).

[22] See People v. Salenga, G.R. No. 239903, September 11,2019.

[23] Asis v. People, G.R. No. 241602, November 20, 2019.

[24] People v. Ruiz, G.R. No. 243635, November 27, 2019.

[25] TSN, August 30, 2016, p. 6.

[26] Id. at 8.

[27] People v. Salenga, supra note 22.

[28] G.R. No. 239331, July I 0, 2019.

[29] Supra note 21 .

[30] The Pinagsamang Sinumpaang Salaysay executed by POI Taguibao and PO I Jerove Tarrayo was likewise devoid of any explanation as to the means they employed to secure the presence of any of the necessary witnesses. See records, p. 12.

[31] TSN, August 30, 2016, p. 8.

[32] People v. Retada, supra note 28.

[33] Supra note 21.

[34] Supra note 24.

[35] People v. Caray, G.R. No. 245391, September II, 2019.

[36] Id.</DIV>

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