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A ACCCCUUSSEEDD--APAPPPEELLLLAANNT T WIWILHLHEELLMMIINNA A DDIIAAMMZZOONN, , bbyy coTHE PARTIES
Accused-Appellant WILHELMINA DIAMZON (hereinafter, “Diamzon”for brevity)is oflegalage,Filipino and presently detained at the Correctional Institute for Women, Correctional Road, Bagong Buhay, Mandaluyong City. She may be served with processes of this Court at the address of the undersigned counsel, at 3rd Floor Gonzalez Building, 1888 Orense Street, Guadalupe Nuevo, Makati City.
Plaintiff-Appellee PEOPLE OF THE PHILIPPINES is represented by the OFFICE OF THE SOLICITOR GENERAL with address at Amorsolo Street, Legaspi Village, Makati City, where it may be served with notices, orders and other legal
processesofthisCourt.
STATEMENT OF THE CASE
This is an appeal by Accused-appellant Diamzon from the Judgment of the Regional Trial Court of Pasig City, Branch
164 dated 15 June 2016, in Criminal Case Nos. 19791-D and 19792-D for Violation of Sections 5 and 11 of Republic Act No. 9165.
After trial, the court a quo rendered the Judgment dated 15 June 2016, the dispositive portion of which reads as follows:
“WHEREFORE:
1.In Criminal Case No. 19791-D, the Court finds accused Wilhelmina P. Diamzon alias Mina GUILTY beyond reasonable doubt of the crime of selling shabu penalized under Section 5, Article II of R.A. 9165, and hereby imposed upon her the penalty of life
imprisonment and a fine of five hundred thousand pesos (P500,000.00) with all the accessory penalties under the law.
2.In Criminal Case No. 19792-D, the Court finds accused Wilhelmina P. Diamzon alias Mina GUILTY beyond reasonable doubt of violation of Section 11, Article II of R.A. 9165, and hereby imposed upon her an indeterminate penalty of imprisonment from twelve (12) years and one (1) day, as minimum, and a fine of three hundred thousand pesos (P300,000.00) with all the accessory penalties under the law.
The seven (7) transparent plastic sachets of shabu (Exhibit “N” to “T”) are hereby ordered confiscated in favor of the government, and the Branch Clerk of this Court is directed to turn over the said evidence to the Philippine Drug Enforcement Agency for destruction in accordance with law.
Let the entire record of Criminal Case No. 19791-D be sent to the archives it appearing that accused JOSE TANG y AMAR alias Tolits is stillat-large. And letan alias warrant be issued for the apprehension of Jose A. Tang alias Tolits.
SO ORDERED.”
The Original Receiving Copy of the Judgment dated 15 June 20161 is hereto attached as ANNEX “1” in compliance with the directive of this Court dated 24 August 2016.
STATEMENT OF THE FACTS
The true facts of this appealed case, contrary to the findingsofthetrialcourt,wereasfollows:
On the evening of 03 December 2014, accused-appellant Diamzon was at her house located at 867 Kamagong Street, Napico, Barangay Mangahan, Pasig City. She was then watching television.
While accused-appellant Diamzon was watching television, she was surprised when several men, who later identified themselves as police officers, suddenly barged into her house, where one of them suddenly held her and told her to sit down as they will conduct a search on her house as these men were allegedly looking for someone.
Upon inquiry on who these men were looking for, one of these men answered the accused-appellant that they were looking foran “alias Tolits.” Accused-appellanttold these men that she did not know any “alias Tolits.” She then further inquired if these men had a search warrant, and she was informed that if she wanted to see the search warrant, she should go with them. One of the men then took her shoulder bag and forcibly dragged accused-appellant Diamzon to go with them.
Accused-appellant Diamzon was then brought to the barangay hall where she was presented to a barangay Kagawad. At that time, accused-appellant Diamzon was wearing boxer shorts without any pocket and a white shirt.
From the barangay hall, accused-appellant Diamzon was brought by these men to the police headquarters, where said
men demanded from her the amount of Two Hundred Thousand Pesos (Php200,000.00) in order for these men to
release accused-appellant Diamzon.
When accused-appellant Diamzon refused to heed to the demand of these me, who were later identified as police officers, she was detained in a cell, and thereafter was subjected to a drug test. Results of the drug tests of
accused-appellant Diamzon yielded that she was negative for shabu or any dangerous drugs2.
After the drug test, accused-appellant Diamzon was detained, without her recovering her shoulder bag from the arresting police officer, containing money, jewelries and other valuables.
She was thereafter subject to inquest proceedings before the Office of the City Prosecutor of Pasig, where she was charged with Violations of Sections 5 and 11, Article II of R.A. 9165.
The two (2) Information filed against accused-appellant Diamzon respectively reads, to wit:
INFORMATION3
Criminal Case No. 19791-D
On or about December 3, 2014, in Pasig City, and within the jurisdiction of this Honorable Court, the accused, conspiring and confederating together and both of them mutually aiding one another, and not being lawfully authorized by law, did then and there willfully, unlawfully and feloniously sell, deliver,
and give away to PO1 Rodrigo J. Nidoy, Jr., a policeposeurbuyer,one(1)heat-sealed plastic sachet containing 0.03 gram of white crystalline substance, which was found positive to the tests for methamphetamine hydrochloride, a dangerous drug, in violation of said law.
Contrary to law.
INFORMATION4
2 Crime Laboratory Office Mandaluyong Physical Sciences Report No.
DT-718-14E dated 04 December 2014 , Rollo, Page 20
3 Rollo,pages1-2 4 Rollo, pages 3-4
Criminal Case No. 19792-D
On or about December 3, 2014, 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 have in her possession, custody and control six (6) heat -sealed transparent plastic sachets each containingthefollowing,towit: 1.2RJN/MINA – 0.05 gram 2.3RJN/MINA – 0.06 gram 3.4RJN/MINA – 0.04 gram 4.5RJN/ MINA – 0.04 gram 5.6RJN/ MINA – 0.04 gram 6.7RJN/MINA – 0.03 gram
of white crystalline substance, which were found positive to the tests for methamphetamine hydrochloride, a dangerous drug,inviolationofthesaidlaw.
Contrary to law.
During the arraignment, the accused respectively entered apleaof“notguilty”tobothcharges5.Jointtrialonthemerits ensued.
The prosecution presented three (3) witnesses, namely: (1) Police Senior Inspector (PSI) Joanne DC Rosales, (2) PO1 Lodjie N. Coz and (3) PO1 Rodrigo J. Nidoy, Jr.
The testimony of PSI Joanne DC Rosales, the forensic chemist, was dispensed with considering that the prosecution and defense entered into stipulations, as per Order dated 26 May 20156, that she was the one who examined the alleged plastic sachets, and that the same was found positive for shabu, and that her findings was reduced in writing – Physical
5 Certificates of Arraignment dated 03 February 2015, Rollo, pages 39-40
Science Report No. D-521-14F7. Itwasfurtherstipulatedthat PSI Rosales had no personal knowledge as to whom the specimens she examined belonged.
The testimony of PO1 Lodjie N. Cruz, the investigator of the case, was likewise dispensed and was stipulated thereto, as per Order dated 09 March 20168, that he received the specimens subject of the case from Rodrigo J. Nidoy, Jr., he prepared the Chain of Custody Form9 and Request for Laboratory Examination10, and that he has no personal knowledge of the origin of the shabu subject of the cases.
PO1RodrigoJ.Nidoy,Jr.,testified,towit:
(a) At 8:00 o’ clock in the morning of 03 December 2014, a confidential informant informed PCI Castillo about certain activities ofselling illegaldrugs atNarra Street, Napico, Barangay Manggahan, Pasig City, by a certain tolits. Thus, a Pr e-Operation Report with Control No. 1214-00043 dated 03 December 201411 was prepared by PCI Castillo indicating therein that the targets are the following: (1) Eduardo Lolarda @ DING, (2) OREK, (3) @OWEL STA. ANA, (4) @ Maricel GANDA, (5) @ TOLITS, (6) @ BAROK, (7) @ BERNIE, (8) @ TITA BABY, (9) @DJ, (10) @ VENUS, (11) @ ABU, (12) @ BIRGO, (13) BULOY STA. ANA, (14) @ GORYO, (15) @ JOAN, (16) @ HAJEE.
(b) When they arrived in the target area, he spotted accused-appellant Diamzon outside the gate of her area. He allegedly transacted with accused-appellant Diamzon and the latter allegedly sold her
7 Rollo, page 18
8 Rollo, pages 100-101
9 Rollo, page 90 10 Rollo, page 91 11 Rollo, page 88
one plastic sachet, which allegedly tested positiveforshabu.
(c) Upon arrest of accused-appellant Diamzon, he instructed the latter to bring out the contents of her pocket, and allegedly she brought out the buy-bust money from her
pocket.
(d) Thereafter, he allegedly confiscated six (6) plastic sachets in the possession of accused-appellant Diamzon.
(e) He initially conducted an inventory by marking the alleged plastic sachets containing white crystalline substance at theplaceoftheallegedarrest,then lateron transferred to the barangay hall to continue the inventory before Brgy. Kagawad Tomas P.Gualvez.
(f) Thereafter, he brought accused-appellant Diamzon to his office for investigation.
On cross-examination, PO1 Nidoy admitted that accuse d-appellant Diamzon was not the subject of their operation. He also admitted that during the inventory of the alleged seized items, the same was conducted without the presence of a representative from the media and from the Department of Justice.
Thereafter, the prosecution rested its case.
The defense presented accused-appellant Diamzon. She testified, inter alia that: (a) on the evening of 03 December 2014, she was inside her house watching teleserye at GMA 7, (b) she was surprised when several armed men barged into her house looking for a certain “Tolits”. When she answered that she did not know of any person named “Tolits,” these armed men dragged her out of her house and brought her to the Barangay Hall where she was made to sign a prepared document, which she had no opportunity to read. Thereafter,
she was brought to the police station, subjected to a drug test, which test resulted negative for shabu, and then detained up
topresent.
When asked what she was wearing that time, accused-appellant Diamzon replied that she was wearing boxer shorts and a white shirt. She was then confronted with pictures12 taken during her arrest and alleged inventory taking, and accused-appellant Diamzon confirmed her outfit that time. She, then, presented the boxer shorts, and had the same examined by the trial prosecutor. The trial prosecutor manifested that the said boxer shorts appears to be the same as that appearing in the pictures13, and further manifested thatthe same was without a pocket.
Thereafter, the defense rested its case.
On 15 June 2016, the trial court promulgated its Judgment14,thedispositiveportionofwhichreads,towit:
“WHEREFORE:
3.In Criminal Case No. 19791-D, the Court finds accused Wilhelmina P. Diamzon alias Mina GUILTY beyond reasonable doubt of the crime of selling shabu penalized under Section 5, Article II of R.A. 9165, and hereby imposed upon her the penalty of life imprisonment and a fine of five hundred thousand pesos (P500,000.00) with all the accessory penalties under the law.
4.In Criminal Case No. 19792-D, the Court finds accused Wilhelmina P. Diamzon alias Mina GUILTY beyond reasonable doubt of violation of Section 11, Article II of R.A. 9165, and hereby imposed upon her an indeterminate penalty of imprisonment from twelve (12) years and one (1) day, as minimum,
12 Rollo, page 96 13 Rollo, pade 96
and a fine of three hundred thousand pesos (P300,000.00) with all the accessory penalties under the law.
The seven (7) transparent plastic sachets of shabu (Exhibit “N” to “T”) are hereby ordered confiscated in favor of the government, and the Branch Clerk of this Court is directed to turn over the said evidence to the Philippine Drug Enforcement Agency for destruction in accordance with law.
Let the entire record of Criminal Case No. 19791-D be sent to the archives it appearing that accused JOSE TANG y AMAR alias Tolits is stillat-large. And letan alias warrant be issued for the apprehension of Jose A. Tang alias Tolits.
SO ORDERED.”
Accused-appellant filed her Notice of Appeal15. An Order dated 29 June 201616 was issued by the trial court granting the Notice of Appeal. Hence, the instant appeal.
ASSIGNMENT OF ERROR
THE LOWER COURT ERRED IN FINDING ACCUSED APPELLANT WILHELMINA
DIAMZON GUILTY BEYOND REASONABLE DOUBT FOR VIOLATION OF SECTIONS 5 AND 11, ARTICLE II OF REPUBLIC ACT NO. 9165.
DISCUSSION
THE LOWER COURT ERRED IN FINDING ACCUSED APPELLANT WILHELMINA DIAMZON GUILTY BEYOND REASONABLE DOUBT FOR
15 Rollo, pages pages 126-128
VIOLATION OF SECTIONS 5 AND 11, ARTICLE II OF REPUBLIC ACT NO. 9165.
The arrest of accused-appellant Diamzon is a frame-up. In fact, the alleged buy-bust operation was tainted with irregularities,towit:
a. The Pre-Operation Report dated 03 December 2014 with Control No. 1214-0004317 does not include accused-appellant Diamzon as the target of the intended buy-bust operation.
The Pre-Operation Report dated 03 December 2014 with Control No. 1214-0004318 clearly shows that the target of the operation are the following (1) Eduardo Lolarda @ DING, (2) OREK, (3) @OWEL STA. ANA, (4) @ Maricel GANDA, (5) @ TOLITS, (6) @ BAROK, (7) @ BERNIE, (8) @ TITA BABY, (9)
@DJ, (10) @ VENUS, (11) @ ABU, (12) @ BIRGO, (13) BULOY STA. ANA, (14) @ GORYO, (15) @ JOAN, (16) @ HAJEE.
The fact that accused-appellant Diamzon was not the target of the operation was admitted by PO1 Nidoyin his testimony during the trial. In fact, in his Sinumpaang Salaysay ng Pag-aresto19, PO1 Nidoy referred to accuse d-appellant Diamzon as “alias Mina” and even marked the allegedly seized plastic sealed sachets with the word “MINA”. Notable, however, is that the name “@ MINA” is not among those listed in the Pre-Operation Report dated 03 December 2014 with Control No. 1214-00043.20
Thus, the testimony of PO1 Nidoy that he simply went near accused-appellant Diamzon for a score is highly unbelievable. Why would he approach someone who is not even the target of the operation? Is it not contrary to the professional experience of a police officer to assume that a person, who is not the alleged target, standing near the intended targetareaofoperation,islikewisesellingshabu? If such is the case, the act of approaching the said person, who
17 Rollo, page 14 18 Rollo, page 14 19 Rollo, pages 11-12 20 Rollo, page 14
might be an innocent bystander, and allegedly asking for a “score” would alarm the potential targets and jeopardize the entireoperation. Policeoperativesarenotthiscarelessunless said police officers would simply want to frame up any person, as what happened in the instant case.
b. The inventory and photograph taking of the alleged seized shabus were not made in the presence of the media and a representative from the Department of Justice, which is a requirement of Section 21 of Republic Act No. 9165 and Section 21 of the Implementing Rules and Regulations of Republic Act No. 9165. As can be seen in the Inventory of Seized Items dated 03 December 201421, the same do not bear the signature of a representative of the Department of Justice as well as a representative of the media.
Section 21 of Republic Act No. 9165 reads, to wit: “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, physical 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 inventory and be given a copy thereof;
xxx”
Section 21 of the Implementing Rules and Regulations of Republic Act No. 9165 reads, to wit:
“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 drug, controlled precursors and essential chemicals, as well as instruments/ paraphernalia and/ or laboratory equipment so confiscated and/ or surrendered, for proper disposition in the following manner:
(a) The apprehending officer/ team having initial custody and control of 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 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 made; orat 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 seizure of and custody over said items;
xxx”
As can be seen in the Inventory of Seized Evidence22and admitted by PO1 Nidoy during his testimony,there were no representatives from the media and a representative from the DOJ during the inventory of the alleged shabu to attest that indeed the arrest and subsequent confiscation of the alleged shabu was regularly done. There is no one among those persons required under Section 21 of Republic Act No. 9165 who can attest that indeed the arrest was effected legally, and the item seized was indeed shabu. Furthermore, the Sinumpaang Salaysay ng Pag-Aresto executed by PO1 Rodrigo J. Nidoy, Jr23., does not bear an explanation why there was no representative from the media and from the Department of Justice. Evidently,there was no compliance with the requirements laid down by Section 21 of R.A. 9165 and Section 21 of the Implementing Rules and Regulations of R.A. 9165.
Jurisprudence is also replete thatnon-compliance with the requirements of Section 21 of R.A. 9165 should result to the acquittal of the accused.
In the case ofPeopleofthePhilippines v.AlbertoBacus Alcuizar, G.R. No. 189980, 06 April 2011, the Honorable
Supreme Court in acquitting the accused, held to wit: “The dangerous drug itself, the shabu in thiscase,constitutestheverycorpusdelictiof the offense and in sustaining a conviction
22 Rollo.page 15 23 Rollo, pages11-12
under Republic Act No. 9165, the identity and integrity of the corpus delicti must definitely be shown to have been preserved. This requirement necessarily arises from the illegal drug's unique characteristic that renders it indistinct,not readily identifiable,and easily open to tampering, alteration or substitution either by accident or otherwise. Thus, to remove any doubt or uncertainty on the identity and integrity of the seized drug, evidence must definitely show that the illegal drug presented in court is the same illegal drug actually recovered from the acc used-appellant; otherwise, the prosecution for possession under Republic Act No. 9165 fails.
The chain of custody rule requires that the marking of the seized items should be done in the presence of the apprehended violator and immediately upon confiscation to ensure that they are the same items that enter the chain and are eventually the ones offered in evidence. In Lopez v. People citing Catuiran v. People, this Court held that:
It would include testimony about every link in the chain, from the moment the item was picked up to the time it is offered into
evidence, in such a way that every person who touched the exhibit would describe how and from whom it was received, where it was and what happened to it while in the witness'
possession, the condition in which it was received and the condition in which it was delivered to the next link in the chain. These witnesses would then describe the precautions taken to ensure that there had been no change in the condition of the item and no opportunity for someone not in the chain to have possession of the same. Indeed, it is from the testimony of every witness who handled the evidence from which a reliable assurance can
be derived that the evidence presented in court is one and the same as that seized from the accused.
The aforesaid step initiates the process of protecting innocent persons from dubious and concocted searches, and of protecting as well the apprehending officers from harassment suits based on planting of evidence and on allegationsofrobberyortheft.
Appellant cites the failure of the police officer to mark the evidence immediately after purportedly taking it from him. This omission, appellant contends, renders the chain of custody dubious.
xxx
In People v. Garcia, the Court enumerated several cases dealing with the legal repercussions of failing to comply with Section 21 of Republic Act No. 9165, thus:
In People v. Orteza, the Court, in discussing the implications of the failure to comply with Paragraph 1, Section 21, Article II of R.A. No. 9165, declared:
In People v. Laxa, where the buy-bust team failed to mark the confiscated marijuana immediately after the apprehension of the accused, the Court held that the deviation from the standard procedure in anti-narcotics operations produced doubts as to the origins of the marijuana. Consequently, the Court concluded that the prosecution failed to establish theidentityofthecorpusdelicti.
The Court made a similar ruling in People v. Kimura, where the Narcom operatives failed to place markings on the seized marijuana at
the time the accused was arrested and to observe the procedure and take custody of the drug.
More recently, in Zarraga v. People, the Court held that the material inconsistencies with regard to when and where the markings on the shabu were made and the lack of inventory on the seized drugs created reasonable doubt as to the identity of the corpus delicti. The Court thus acquitted the accused due to the prosecution's failure to indubitably show the identity of the shabu.
We reached the same conclusion in People v. Nazareno and People v. Santos, Jr., and recently, in the cases of People v. Dela Cruz and People v. De la Cruz where we again stressed the importance of complying with the prescribed procedure. We also held that strict compliance is justified under the rule that penal laws shall be construed strictly against the government, and liberally in favor of the accused.
xxx
Verily, the failure of the police officers to mark the dangerous drugs immediately after their seizure and the vague recollection of SPO1 Agadier concerning the custody of the drugs from the residence of appellant up to the time it was submitted to the crime laboratory constitute a huge and significant gap in the chain of custody which substantially affects theidentityofthecorpusdelicti.
To successfully prosecute a case of illegal possession of dangerous drugs, the following elements must be established: (1) the accused is in possession of an item or object which is identified to be a prohibited drug; (2) such
possession is not authorized by law; and (3) the accused freely and consciously possessed the said drug.
The Court of Appeals ruled that appellant is presumed to have been in possession of the prohibited drugs when they were found in his house. While this presumption may be true, it is certainly not conclusive and may be rebutted by contrary evidence. It is worthy to reiterate that this Court entertains serious doubts as to whether the prohibited drugs were indeed found in appellant’s house considering that there were no other witnesses presented to prove it. And it is by the same doubt that constrains this Court to acquit appellant.”
Likewise, in the case ofPeople of the Philippines v. Edgardo Fermin y Gregorio, G.R. No. 179344, 03 August 2011, the Supreme Court in acquitting the accused, held to wit:
“The defense’s main argument is whether or not there was really a buy-bust operation on 9 July 2003. While we are not in total agreement with all the submissions of the defense, this Court is reversing the ruling of the lower courts and now acquits the two accused of the crime charged.
In a prosecution for illegal sale of dangerous drugs, the following elements must be proven: (1) that the transaction or sale took
place;(2)thatthe corpus delictiorthe illicit drug was presented as evidence; and (3) that the buyer and seller were identified. The presence of these elements is sufficient to support the trial court’s finding of appellants’ guilt. What is material is the proof that the transaction orsaleactuallytookplace,coupled with the presentation in court of the
the contraband to the poseur-buyer and the receipt of the marked money consummate the buy-bust transaction between the entrapping officers and the accused. The presentation in court of the corpus delicti — the body or substance of the crime – establishes the fact that a crime has actually been committed.
We have repeatedly held that the trial court’s evaluation of the credibility of witnesses and their testimonies is entitled to
great respect and will not be disturbed on appeal. However, this is not a hard and fast rule. We have reviewed such factual findings when there is a showing that the trial judge overlooked, misunderstood, or misapplied some fact or circumstance of weight and substance that would have affected the case.
Cognate to this, while the entrenched rule is that the assessment of witnesses and their testimonies is a matter best undertaken by the trial court which had the opportunity to observe the demeanor, conduct or attitude of the witnesses, the findings of the lower court on this point will be reversed on appeal, if it overlooked substantial facts and circumstances which, if considered, would materiallyaffecttheresultofthecase.
This Court believes that on application of the rule to the testimonies of the prosecution witnesses, the exception to the high value of
the trial court’s findings surfaces. We find irreconcilable conflicts in the recollections about the principal factum probandum which is the buy-bust itself. The varying versions aboutthe pre-operation,the illegalsale itself and the immediately preceding actions put doubts about what really transpired on 9 July 2003.
xxx
Strict compliance with the prescribed procedures is required because of the unique characteristic ofillegaldrugs,rendering them indistinct,not readily identifiable,and easily open to tampering, alteration or substitution either by accident or otherwise. Hence, we have the rules on the measures to be observed during and after the seizure, during the custody and transfer of the drugs for examination, and at all times up to their presentation in court.
While Section 21(a) of the Implementing Rules and Regulations of Republic Act No. 9165 excuses non-compliance with the afor e-quoted procedure, the same holds true only for as long as the integrity and evidentiary value of the seized items are properly preserved by the apprehending officers. Here, the failure of the buy-bust team to comply with the procedural requirements cannot be excused since there was a break in the chain of custody of the substance taken from appellant. It should be pointed out that the identity of the seized substance is established by showing its chain of custody.
The following are the links that must be established in the chain of custody in a buy- bust situation: first, the seizure and marking,
ifpracticable,oftheillegaldrugrecoveredfrom the accused by the apprehending officer; second,theturnoveroftheillegaldrugseized by the apprehending officer to the investigating officer; third, the turnover by the investigating officer of the illegal drug to the forensic chemist for laboratory examination; and fourth, the turnover and submission of the marked illegal drug seized from the forensic chemist to the court.
As provided by the implementing rules and jurisprudence, strict compliance of the requisites under Section 21 of Republic Act No. 9165 can be disregarded as long as the evidentiary value and integrity of the illegal drug are properly preserved; and its preservation can be well established if the chain of custody of illegal drug was unbroken. The break is clear in this case.
It must be noted that the police officer who had the initial custody and control of the illegaldrug wasnotclearly identified. In the preceding discussion on the inconsistency in the statements of PO2 Ibasco and PO2 Pascua, it was pointed out that PO2 Ibasco admitted that he was in possession of the confiscated drug, but this was contradicted by PO2 Pascua who testified that he was the one who was in possession of the illegal drug which was the subject of sale when it was brought to the policestation.
The fundamentals of a criminal prosecution were, indeed, disregarded. In considering a criminalcase,itis criticalto startwiththelaw’sownstartingperspectiveon the status of the accused – in all criminal prosecutions, he is presumed innocent of the charged laid unless the contrary is proven beyond reasonable doubt. The burden lies on the prosecution to overcome such presumption of innocence by presenting the quantum of evidence required. To repeat, the prosecution must rest on its own merits and must not rely on the weakness of the defense. And if the prosecution fails to meet the required amount of evidence, the defense may logically not even present evidence on its own behalf. In which case, the presumption prevails and the accused should necessarily be acquitted.
The prosecution failed to prove beyond reasonable doubt the guilt of the two accused. The rule that high respect must be accorded the lower courts in their findings of facts cannot be misused to diminish the required evidence to overcome the presumption of innocence of the accused as guaranteed by the Constitution.”
In the case of Rodrigo Rontos v. People of the Philippines, G.R. No. 1880024, 05 June 2013, the Honorable Supreme Court held:
“However, on the basis of the nonobservance of the rules of procedure for handling illegal drug items, we resolve to acquit petitioner on the ground of reasonable doubt.
In illegal drugs cases, the identity and integrity of the drugs seized must be established with the same unwavering exactitude as that required to arrive at a finding of guilt. The case against the accused hinges on the ability of the prosecution to provethattheillegaldrugpresentedincourtis the same one that was recovered from the accused upon his arrest.
The procedure set forth in Section 21 of R.A. 9165 is intended precisely to ensure the identity and integrity of dangerous drugs seized. This provision requires that upon seizure of illegal drug items, the apprehending team having initial custody of the drugs shall (a) conduct a physical inventory of the drugs and (b) take photographs thereof (c) in the presence of the person from whom these items were seized or confiscated and (d) a representative from the media and the Department of Justice and any elected public
official (e) who shall all be required to sign the inventory and be given copies thereof.
This Court has emphasized the import of Section 21 as a matter of substantive law that mandates strict compliance. It was laid down by Congress as a safety precaution against
potential abuses by law enforcement agents who might fail to appreciate the gravity of the penalties faced by those suspected to be involvedinthesale,useorpossessionofillegal drugs. Under the principle that penal laws are strictly construed against the government, stringent compliance therewith is fully justified.
Here, the procedure was not observed at all. Where it is clear that Section 21 was not observed, as in this case, such noncompliance brings to the fore the question of whether the illegal drug items were the same ones that were allegedly seized from petitioner.”
In the instant case, there is no dispute that the Inventory and marking of the seized shabu was made without the presence of the media and a representative of the Department of justice. Thus, there is no issue as to the non-compliance with the requirements of Section 21 of R.A. 9165 and Section
21 of the Implementing Rules and Regulations of R.A. 9165. In the case ofCarlitoValenciav.PeopleofthePhilippines, G.R. No. 198804, 22 January 2014, the Honorable Supreme Court held:
“Although the Court has ruled that non-compliance with the directives of Section 21, Article II of R.A. No. 9165 is not necessarily
fataltotheprosecution’scase,theprosecution muststillprove that(a)there is a justifiable ground for the non-compliance, and (b) the integrity and evidentiary value of the seized items were properly preserved. Further, the
non-compliance with the procedures must be justified by the State’s agents themselves. The arresting officers are under obligation, should they be unable to comply with the procedures laid down under Section 21, Article II of R.A. No. 9165, to explain why the procedure was not followed and prove that the reason provided a justifiable ground. Otherwise, the requisites under the law would merely be fancy ornaments that may or may not be disregarded by the arresting officers at their own
convenience.
Thus, in People v. Almorfe, the Court stressedthat:
Respecting the team’s non-compliance with the inventory, not to mention the photograph, requirement of R.A. No. 9165, the same does not necessarily render void and invalid the seizure of the dangerous drugs. There must, however, be justifiable grounds to warrant exception herefrom, and provided that
the integrity and evidentiary value of the seized items are properly preserved by the apprehending officer/s.
For the saving clause to apply, it is important that the prosecution should explain the reasons behind the procedural lapses and that the integrity and value of the seized evidence had been preserved:
x x x [N]on-compliance with the strict directive of Section 21 of R.A. No. 9165 is not necessarily fatal to the prosecution’s case; police procedures in the handling of confiscated evidence may still have lapses, as in the present case. These lapses, however, must be recognized and explained in terms of their justifiable grounds and the integrity and
evidentiary value of the evidence seized must be shown to have been preserved.
The arresting officers in this case tendered no justification in court for their non-compliance with the procedures. Indeed, a thorough perusal of the records of this case yielded no result as to any explanation or justification tendered by the apprehending offi cers as regards their non-compliance with the procedures laid down under
Section 21, Article II of R.A. No. 9165. It was thus a grave error for the RTC and the CA
to rule that there was an unbroken chain of custody despite the failure of the arresting officers to mark the confiscated plastic sachets in the presence of Valencia and to identify all the individuals who took custody of the same from the time the said plastic sachets were confiscated until the time they were presented in the RTC.”
(Emphasis and underscoring supplied)
In the instant case, a perusal of the Sinumpaang Salaysay ng Pag-Aresto executed by PO1 Rodrigo J. Nidoy24 would reveal that PO1 Nidoy as the arresting officer and the one who conducted the marking and the inventory did not make any justification as to why there was no compliance with the requirements of Section 21 of R.A. 9165 as to the presence of a media and a representative of the DOJ. He also admitted during his testimony that indeed there was no media and representative from the DOJ, but offered no justification for theirabsence.
In the case ofPeople of the Philippines v. Ramil Doria Dahil and Rommel Castro, G.R. No. 212196, 12 January 2015, the Honorable Supreme Court held:
“xxx
The strict procedure under Section 21 of R.A. No. 9165 was not complied with.
Although the prosecution offered inevidence the Inventory of the Property Seized signed by the arresting officers and Kagawad Pamintuan, the procedures provided in Section 21 of R.A. No. 9165 were not observed. The said provision requires the apprehending team, after seizure and confiscation, to immediately (1) conduct a physically inventory; and (2) photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/orseized, or his/her representative or counsel, a representative from the media and the DOJ, and any elected public official who shall be required tosign the copies of the inventory and be given a copy thereof.
xxx
Notwithstanding the failure of the prosecution to establish the rigorous requirements of Section 21 of R.A. No. 9165, jurisprudence dictates that substantial compliance is sufficient. Failure to strictly comply with the law does not necessarily render the arrestof the accused illegal or the items seized or confiscated from him inadmissible. The issue of non-compliance with the said section is not of admissibility, but of weight to be given on the evidence. Moreover, Section 21 of the IRR requires "substantial" and not necessarily "perfect adherence," as long as it can be proven that the integrity and the evidentiary value of the seized items are preserved as the same would be utilized in the determination of the guilt or
To ensure that the integrity and the evidentiary value of the seized items are preserved, the proper chain of custody of the seized items must be shown. The Court explained in People v. Malillin how the chain of custody or movement of the seized evidence should be maintained and why this must be shown by evidence, viz:
As a method of authenticating evidence, the chain of custody rule requires that the admission of an exhibit be preceded by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be. It would include testimony about every link in the chain, from the moment the item was picked up to the time it is offered into evidence, in such a way that every person who touched the exhibit would describe how and from whom it was received, where it was and what happened to it while in
the witness’ possession, the condition in which it was received and the condition in which it was delivered to the next link in the chain. These witnesses would then describe the
precautions taken to ensure that there had been no change in the condition of the item
and no opportunity for someone not in the chain to have possession of the same.
In People v. Kamad, the Court identified the links that the prosecution must establish in the chain of custody in a buy-bust situation to be as follows: first, the seizure and marking, ifpracticable,oftheillegaldrugrecoveredfrom the accused by the apprehending officer; second,theturnoveroftheillegaldrugseized by the apprehending officer to the investigating officer; third, the turnover by the investigating officer of the illegal drug to the forensic chemist for laboratory examination; and fourth, the turnover and submission of the
marked illegal drug seized by the forensic chemist to the court.
xxx
The case of People v. Gutierrez also had inadequate stipulations as to the testimony of the forensic chemist. No explanation was given regarding the custody of the seized drug in the interim - from the time it was turned over to the investigator up to its turnover for laboratory examination. The records of the said case did not show what happened to the allegedly seized shabu between the turnover by the investigator to the chemist and its presentation in court. Thus, since there was no showing that precautions were taken to ensure that there was no change in the condition of that object and no opportunity for someone not in the chain to have possession thereof, the accused therein was likewise acquitted.”
In the case at bar, it is worth reiterating that there was non-compliance with the requirement on the presence of the media and a representative from the DOJ during the marking and inventory taking. Also worth emphasizing is the fact that at the inventory taking, it was only PO1 Nidoy who conducted the same and in the presence only of a Barangay Kagawad. The said Barangay Kagawad, however, did not testify to
authenticate the acts of marking and inventory made by PO1 Nidoy. This alone would affect the integrity of the evidence as there is no other person to attest as to the handling of the seized shabu from the time they were confiscated from accused-appellant Diamzon until the inventory taking.
Furthermore, there was no witness who corroborated the testimony of PO1 Nidoy as to how he handled the seized shabu from the time he left the place of inventory until the same was turnedovertotheinvestigator,PO1LodjieCoz.
While the testimonies of PO1 Coz (Investigator) and PSI Rosales (Forensic Chemist) were stipulated on, there was no stipulation as to the precautions taken to ensure that there was no change in the condition of the seized shabu and no opportunity for someone not in the chain to have possession thereof.
Although accused-appellant Diamzon interposed the defense of “denial,” the same is not necessarily weak.
In the case ofPeople v.Alberto, G.R. No. 179717, 05 February 2010, the Honorable Supreme Court held that:
"A defense of denial which is unsupported and unsubstantiated by clear and convincing evidence becomes negative and self-serving, deserving no weight in law, and cannot be givengreaterevidentiaryvalueoverconvincing, straight forward and probable testimony on affirmative matters."
In the present case, the denial of the accused as to the alleged charges, is supported by clear and convincing evidence.
It is worthy to point out that in the Sinumpaang Salaysay ng Pag-aresto executed by PO1 Rodrigo J. Nidoy, Jr.25 and in his direct testimony, he declared that accused-appellant Diamzon took out the buy-bust money from her shorts.
Thus, in the testimony of accused-appellant Diamzon, she presented the boxer shorts she was wearing at the time of her arrest. After pictures at the time of the arrest were shown to the prosecutor as well as the boxer shorts presented by the accused-appellant, the prosecutor manifested that the boxer shorts appears to be the same as that in the pictures.26
The more pertinent portions of the Manifestation of the Prosecutor and testimony of accused-appellant Diamzon as
25 Rollo, pages 11-12 26 Rollo, page 22
appearing in the Transcript of Stenographic Notes in the hearing dated 13 April 2016 are herein quoted, to wit:
Page 6
“Q: By the way, Miss witness, what were you wearing that night of December 3,
2014?
A: I was wearing sleep wear.
Q: Could you describe what you were wearing that time, Miss witness?
A: I was wearing boxer shorts and t -shirts.
Page 7
Q: I am showing you a picture marked as Exhibits “K”, “K-1” and “K-2”, could you look at this pictures and tell this court if
this is the clothes you were wearing on the night of December 3, 2014?
PROS. ORIBE:
May I object, your Honor, to the presentation of the photograph because there was no basis, your Honor.
COURT:
Whose picture is that? Because you mentioned Exhibits “K” and “K-1”.
ATTY. ROMAN: Yes, your honor.
That was your documentary evidence, prosec during the inventory?
PROS. ORIBE: Yes, your Honor.
COURT:
Alright, answer now. PROS. ORIBE:
I’m withdrawing my objection, your Honor.
WITNESS:
A.Yes, ma’am. Page 8
ATTY. ROMAN:
Q: Based on the accusation of the arresting officers against you Miss witness, he instructed you to take out from your pocket the money allegedly given to you on December 3, 2014. What can you say about this allegation?
A: That allegation is not true because my shorts I was wearing that night
has no pockets.
Q: Do you have that shorts with your right now, Miss witness?
A: Yes, ma’am. COURT INTERPRETER:
The witness has produced and exhibiting boxer shorts color pink with treat or trick
Holloween pictures. ATTY. ROMAN:
May I request, your Honor, the examination of the shorts by the prosecution just to show and compare with the pictures your Honor.
PROS. ORIBE:
The printing appears to be the same, but I cannot determine, your Honor, if there was not pocket. Although, the one presented has no pockets, but the pictures does not depict onlytheprintingoftheshortpants.
xxx”
Based on the stipulation, the boxer shorts presented before the trial court had the same printing as that in the pictures, and the one presented before the trial court had no pockets.
This boxer evidence alone is clear and convincing evidence that accused-appellant Diamzon was not subject to a legitimate buy-bust operation but was a victim of a frame up. The said evidence negates the testimony of PO1 Nidoy that the alleged buy bust money came from the pocket of the shorts of accused-appellant Diamzon, as clearly the shorts worn as shown by the pictures27 and the objectevidenceitselfhadnopocketatall.
All told, the accused should be acquitted.
PRAYER
WHEREFORE, premises considered, it is respectfully prayed that the Judgment dated 15 June 2016 rendered by teh Regional Trial Court of Pasig City, Branch 65 be REVERSED and SET ASIDE and a new one be entered ACQUITTING Accused-Appellant Wilhelmina Diamzon, and
thereafterorderingherreleasefrom detention.
Other reliefs, just and equitable under the circumstances arelikewiseprayedfor.
07 October 2016, Makati City for Manila.
BAYAUA AND ASSOCIATES LAW OFFICE
Counsel for Accused-Appellant Wilhelmina Diamzon Third Floor Gonzalez Building,
No. 1888 Orense Street, Guadalupe Nuevo, Makati City Tel Nos. (02) 750-4439; (02)881-7629
by:
ATTY. JORICO FAVOR BAYAUA
IBP No. 09572/ 01-13-11 Makati City PTR No. 5330802/ 01-08-16 Makati City
Roll No. 47842
MCLE Compliance No. IV-0009973 December 5, 2012
Copy Furnished:
OFFICE OF THE SOLICITOR GENERAL
Counsel for the People of the Philippines Amorsolo Street, Legaspi Village,
Makati City
REGIONAL TRIAL COURT OF PASIG CITY BRANCH 65