DIWATA NOTES WNCV
Case No. 1: Dela Cruz vs. People The drug test in Section 15 does not cover persons apprehended or arrested for any unlawful act, but only for unlawful acts listed under Article II of R.A. 9165. First, "[a] person apprehended or arrested" cannot literally mean any person apprehended or arrested for any crime. The phrase must be read in context and understood in consonance with R.A. 9165. Section 15 comprehends persons arrested or apprehended for unlawful acts listed under Article II of the law. To make the provision applicable to all persons arrested or apprehended for any crime not listed under Article II is tantamount to unduly expanding its meaning. Note tha taccused appellant here was arrested in the alleged act of extortion. The drug test is not covered by allowable non-testimonial compulsion. In the instant case, we fail to see how a urine sample could be material to the charge of extortion. The RTC and the CA, therefore, both erred when they held that the extraction of petitioner’s urine for purposes of drug testing was "merely a mechanical act, hence, falling outside the concept of a custodial investigation." The drug test was a violation of petitioner’s right to privacy and right against self-incrimination.
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Case No. 2: People vs. Garry dela Cruz ELEMENTS TO BE ESTABLISHED TO SUSTAIN CONVICTION FOR ILLEGAL SALE OF DANGEROUS DRUGS 1. Proof that the transaction or sale took place 2. Presentation in court of the corpus delicti or the illicit drugs as evidence ELEMENTS TO BE ESTABLISHED TO SUSTAIN CONVICTION FOR ILLEGAL POSSESSION OF DANGEROUS DRUGS 1. The accused was in possession of an item or an object identified to be prohibited or regulated drug 2. Such possession is not authorized by law 3. The accused was freely and consciously aware of being in possession of the drug 4. The evidence of corpus delicti must be established beyond reasonable doubt CUSTODY AND DISPOSITION OF CONFISCATED, SEIZED, AND/OR SURRENDERED DANGEROUS DRUGS (Section 21) 1. The apprehending team having initial custody and control of the dangerous drugs shall, immediately after seizure and confiscation, conduct a physical inventory of the seized item and photograph the same in the presence of the accused or the person from whom such items were confiscated and/or seized, or his 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. •
Physical inventory and photograph must be conducted at: - Place where the search warrant is served - The nearest police station - Nearest office of the apprehending officer/ team (whichever is practicable)
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The 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.
2. Within 24 hours upon confiscation/ seizure of dangerous drugs as well as paraphernalia, the same shall be submitted to the PDEA Forensic Laboratory for the qualitative and quantitative examination 3. A certification of the forensic laboratory examination results, which shall be done by the forensic laboratory examiner, shall be issued immediately upon the receipt of the subject items •
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When the volume of the dangerous drugs, plant sources of dangerous drugs, and controlled precursors and essential chemicals does not allow the completion of testing within the time frame, a partial laboratory examination report shall be provisionally issued stating therein the quantities of dangerous drugs still to be examined by the forensic laboratory Provided, however, That a final certification shall be issued on the completed forensic laboratory examination on the same within the next twenty-four (24) hours
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Supreme Court NON-COMPLIANCE TO THE REQUIREMENTS OF SECTION 21’S REQUIREMENTS IS TANTAMOUNT TO FAILURE IN ESTABLISHING IDENTITY OF CORPUS DELICTI, AN ESSENTIAL ELEMENT OF THE OFFENSES OF ILLEGAL SALE AND ILLEGAL POSSESSION OF DANGEROUS DRUGS. BY FAILING TO ESTABLISH AN ELEMENT OF THESE OFFENSES, NON-COMPLIANCE WILL, THIS, ENGENDER THE ACQUITTAL OF THE ACCUSED. • •
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It produces doubt as to the origins of the seized paraphernalia In every criminal prosecution for possession of illegal drugs, the Prosecution must account for the custody of the incriminating evidence from the moment of seizure and confiscation until the moment it is offered in evidence. That account goes to the weight of evidence. It is not enough that the evidence offered has probative value on the issues, for the evidence must also be sufficiently connected to and tied with the facts in issue. The evidence is not relevant merely because it is available but that it has an actual connection with the transaction involved and with the parties thereto. This is the reason why authentication and laying a foundation for the introduction of evidence are important. A unique characteristic of narcotic substances is that they are not readily identifiable as in fact they are subject to scientific analysis to determine their composition and nature. The Court cannot reluctantly close its eyes to the likelihood, or at least the possibility, that at any of the links in the chain of custody over the same there could have been tampering, alteration or substitution of substances from other cases—by accident or otherwise—in which similar evidence was seized or in which similar evidence was submitted for laboratory testing. Hence, in authenticating the same, a standard more stringent than that applied to cases involving objects which are readily identifiable must be applied, a more exacting standard that entails a chain of custody of the item with sufficient completeness if only to render it improbable that the original item has either been exchanged with another or been contaminated or tampered with. 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. The identity of the prohibited drug must be established with moral certainty. Apart from showing that the elements of possession or sale are present, the fact that the substance illegally possessed and sold in the first place is the same substance offered in court as exhibit must likewise be established with the same degree of certitude as that needed to sustain a guilty verdict.
COMPLIANCE TO SECTION 21 ENSURES THE INTEGRITY OF THE CONFISCATED/ SEIZED ITEMS IN FOUR (4) RESPECTS 1. Nature of the items seized 2. Quantity (weight) 3. The relation of the substances or items seized to the incident allegedly causing their seizure 4. The relation of the substances or items seized to the person/s alleged to have been in possession of or peddling them
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Case No. 3: People vs. Beran Dangerous Drugs Act; chain of custody; lapses in the strict compliance with the requirements of Section 21 of R.A. No. 9165 must be explained in terms of their justifiable grounds. •
The Supreme Court recognized that under varied field conditions the strict compliance with the requirements of Section 21 of R.A. No. 9165 may not always be possible, and it ruled that under the implementing guidelines of the said Section “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.” SC added that the prosecution bears the burden of proving “justifiable cause.” In the present case, the prosecution did not bother to offer an explanation for why an inventory and photograph of the seized evidence was not made either in the place of seizure and arrest or at the police station, as required by the Implementing Rules in case of warrantless arrests, or why the marking of the seized item was not made at the place of seizure in the presence of Beran. Indeed, the very identity of the subject shabu cannot be established with certainty by the testimony alone of P03 Sia since the rules insist upon independent proof of its identity, such as the immediate marking thereof upon seizure.
Dangerous Drugs Act; chain of custody; mandatory nature. •
The chain of custody rule requires that there be testimony about every link in the chain, from the moment the object seized was picked up to the time it was offered in evidence, in such a way that every person who touched it would describe how and from whom it was received, where it was and what happened to it while in the possession of the witness, the condition in which it was received and the condition in which it was delivered to the next link in the chain.
Dangerous Drugs Act; chain of custody; marking of evidence in seizures covered by search warrants distinguished from marking of evidence in warrantless seizures such as a buybust operation. •
Concerning the marking of evidence seized in a buy-bust operation or under a search warrant, vis-a-vis the physical inventory and photograph, it must be noted that there are distinctions as to time and place under Section 21 of R.A. No. 9165. Thus, whereas in seizures covered by search warrants, the physical inventory and photograph must be conducted in the place of the search warrant, in warrantless seizures such as a buy-bust operation the physical inventory and photograph shall be conducted at the nearest police station or office of the apprehending officer/team, whichever is practicable, consistent with the “chain of custody” rule. It needs no elaboration that the immediate marking of the item seized in a buy-bust operation in the presence of the accused is indispensable to establish its identity in court. Here, none of the buy-bust team attested that they saw P03 Sia take custody of the confiscated shabu, and later mark the sachet at the DAID-WPD office. Even granting that P03 Sia did mark the same sachet at the precinct, breaks in the chain of custody had already taken place, first, when he confiscated it from Beran without anyone observing him do so and without marking the subject sachet at the place of apprehension, and then as he was transporting it to the precinct, thus casting serious doubt upon the value of the said links to prove the corpus delicti. Moreover, the records also show that P03 Sia submitted the sachet to the laboratory only on the next day, without explaining how he preserved his exclusive custody thereof overnight.
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Case No. 4: People vs. Dahil THE STRICT PROCEDURE UNDER SECTION 21 WAS NOT COMPLIED WITH 1. The inventory of the property was not immediately conducted after seizure and confiscation as it was only done at the police station. (SC: PO2 Corpuz gave the flimsy excuse that they failed to immediately conduct an inventory because they did not bring with them the material or equipment for the preparation of the documents. Such explanation is unacceptable considering that they conducted a surveillance on the target for a couple of weeks.) 2. There is doubt as to the identity of the person who prepared the Inventory of Property Seized. 3. There were conflicting claims on whether the seized items were photographed in the presence of the accused or his/her representative or counsel, a representative from the media and the DOJ, and any elected public official. (PO2 Corpuz said that no photo was taken. SPO1 Liu said that the seized items were photographed) THE PROSECUTION FAILED TO ESTABLISH THAT THE INTEGRITY AND EVIDENTIARY VALUE OF THE SEIZED ITEMS WERE PRESERVED •
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: •
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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.
CHAIN OF CUSTODY, DEFINED •
The duly recorded authorized movements and custody of seized drugs or controlled chemicals or plant sources of dangerous drugs or laboratory equipment of each stage, from the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping to presentation in court for destruction. Such record of movements and custody of seized item shall include the identity and signature of the person who held temporary custody of the seized item, the date and time when such transfer of custody were made in the course of safekeeping and use in court as evidence, and the final disposition.
FIRST LINK: MARKING OF DRUGS RECOVERED FROM THE ACCUSED BY THE OFFICER • •
"Marking" means the placing by the apprehending officer or the poseur-buyer of his/her initials and signature on the items seized. Marking after seizure is the starting point in the custodial link; hence, it is vital that the seized contraband be immediately marked because succeeding handlers of the specimens will use the markings as reference. Page 5 of 21
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In the present case, PO2 Corpuz and SPO1 Licu claimed that they had placed their initials on the seized items. They, however, gave little information on how they actually did the marking. It is clear, nonetheless, that the marking was not immediately done at the place of seizure, and the markings were only placed at the police station based on the testimony of PO2 Corpuz
SECOND LINK: TURNOVER OF THE SEIZED DRUGS BY THE APPREHENDING OFFICER TO THE INVESTIGATING OFFICER •
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Usually, the police officer who seizes the suspected substance turns it over to a supervising officer, who will then send it by courier to the police crime laboratory for testing. This is a necessary step in the chain of custody because it will be the investigating officer who shall conduct the proper investigation and prepare the necessary documents for the developing criminal case. Certainly, the investigating officer must have possession of the illegal drugs to properly prepare the required documents.
THIRD LINK: TURNOVER BY THE INVESTIGATING OFFICER OF THE ILLEGAL DRUGS TO THE FORENSIC CHEMIST •
Once the seized drugs arrive at the forensic laboratory, it will be the laboratory technician who will test and verify the nature of the substance.
FOURTH LINK: TURNOVER OF THE MARKED ILLEGAL DRUG SEIZED BY THE FORENSIC CHEMIST TO THE COURT •
No testimonial or documentary evidence was given whatsoever as to how the drugs were kept while in the custody of the forensic chemist until it was transferred to the court. The forensic chemist should have personally testified on the safekeeping of the drugs but the parties resorted to a general stipulation of her testimony. Although several subpoenae were sent to the forensic chemist, only a brown envelope containing the seized drugs arrived in court.49 Sadly, instead of focusing on the essential links in the chain of custody, the prosecutor propounded questions concerning the location of the misplaced marked money, which was not even indispensable in the criminal case.
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Case No. 5: People vs. Guzon BURDEN OF PROVING THE EXISTENCE OF THE ELEMENTS OF THE CRIME •
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In drug-related prosecutions, the State bears the burden not only of proving these elements of the offense under R.A. No. 9165, but also of proving the corpus delicti , the body of the crime. The dangerous drug is itself the very corpus delicti of the violation of the law. As in all drugs cases, compliance with the chain of custody rule is crucial in any prosecution that follows such operation. Chain of custody means the duly recorded authorized movements and custody of seized drugs or controlled chemicals from the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping to presentation in court for destruction. The rule is imperative, as it is essential that the prohibited drug confiscated or recovered from the suspect is the very same substance offered in court as exhibit; and that the identity of said drug is established with the same unwavering exactitude as that requisite to make a finding of guilt.
SUBSTANTIAL GAPS AND/OR LAPSES IN HANDLING THE EVIDENCE WOULD LEAD TO ACQUITTAL OF THE ACCUSED •
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As Guzon correctly pointed out in his Supplemental Brief, there were several lapses in the law enforcers’ handling of the seized item which, when taken collectively, render the standards of chain of custody seriously breached. In a line of cases, the Court explained that the failure to comply with the indispensable requirement of corpus delicti happens not only when it is missing, but also where there are substantial gaps in the chain of custody of the seized drugs which raise doubts on the authenticity of the evidence presented in court. First, the police officers who took part in the buy-bust operation failed to mark the seized item immediately after its confiscation from Guzon. • Here, instead of immediately marking the subject drug upon its confiscation, PO2 Tuzon marked it with his initials "EAT" only upon arrival at the police station. • While the failure of arresting officers to mark the seized items at the place of arrest does not, by itself, impair the integrity of the chain of custody and render the confiscated items inadmissible in evidence, such circumstance, when taken in light of the several other lapses in the chain of custody that attend the present case, forms part of a gross, systematic, or deliberate disregard of the safeguards that are drawn by the law, sufficient to create reasonable doubt as to the culpability of the accused.
THE PROSECUTION MUST SHOW THAT THE INTEGRITY OF THE CORPUS DELICTI IS PRESERVED •
This is crucial in drugs cases because the evidence involved – the seized chemical – is not readily identifiable by sight or touch and can easily be tampered with or substituted. "Proof of the corpus delicti in a buy-bust situation requires not only the actual existence of the transacted drugs but also the certainty that the drugs examined and presented in court were the very ones seized. This is a condition sine qua non for conviction since drugs are the main subject of the illegal sale constituting the crime and their existence and identification must be proven for the crime to exist." The flagrant lapses committed in handling the alleged confiscated drug in violation of the chain of custody requirement even effectively negate the presumption of regularity in the performance of the police officers’ duties, as any taint of irregularity affects the whole performance and should make the presumption unavailable.
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Case No. 6: People vs. Tang Wai Lan CONFIRMATORY TESTS AND SAMPLES •
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In the present case, even assuming that the confirmatory tests were conducted on samples taken from only one (1) of the plastic packages, accused-appellants arguments must still fail. It will be recalled that each of the plastic packages weighed 1.1 kilograms, an amount more than sufficient to justify imposing the penalty under Sec. 14 of Rep. Act no. 6425 as amended by Rep. Act 7659. A sample taken from one (1) of the packages is logically presumed to be representative of the entire contents of the package unless proven otherwise by accused-appellant. Therefore, a positive result for the presence of drugs is indicative that there is 1.1 kilogram of drugs in the plastic package from which the sample was taken. If it is then proved, beyond reasonable doubt, as will be discussed later, that accused-appellant transported into the Philippines the plastic packages from which samples were taken for tests, and found positive as prohibited drugs, then conviction for importing shabu is definitely in order.
ON APPELLANT’S ALLEGATION THAT SHE IS A MERE INNOCENT COURIER •
It is not disputed that the luggage tag attached to the travelling bag found to contain shabu had the name of accused-appellant Tang Wai Lan. It is also undisputed that said travelling bag was submitted for customs inspection together with accused-appellants other luggage. The allegation of accused-appellant that the travelling bag actually belonged to a certain Cheung Yiu Keung and his two (2) other companions and that it was Cheung who caused her name to be affixed on the luggage tag attached to the bag is a much too simple and convenient alibi to instill belief. If said allegation were true, accused-appellant, an admittedly experienced traveller and friend of Cheung, could have easily pleaded her case before the customs authorities since Cheung was likewise asked to undergo a more thorough customs examination and body search.
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Case No. 7: People vs. Salamat AS TO THE CREDIBILITY OF WITNESS IN A DRUG PROSECUTION •
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To once again reiterate, an entrenched doctrine, its finding on the credibility of witnesses are entitled to the highest degree of respect and will not be disturbed on appeal in the absence of any clear showing that the trial court overlooked, misunderstood or misapplied some facts or circumstances of weight and substance which would have affected the result of the case. In the first place, the testimony of appellant consists merely of denials without any other evidence to sustain his claim and defense. We have consistently ruled that denials if unsubstantiated by clear and convincing evidence are negative, self-serving evidence which deserve no weight in law and cannot be given greater evidentiary weight over the testimony of credible witnesses who testify on affirmative matters. As between the positive declarations of the prosecution witness and the negative statements of an accused, the former deserves more credence. Next, the alleged failure of prosecution witness Pat. Nepomuceno to remember the exact dates when he previously bought shabu from appellant is too trivial an omission as could cast doubt on his credibility. Discrepancies and inconsistencies in the testimonies of witnesses referring to minor details, and not upon the basic aspects of the crime, do not impair their credibility. The fact that appellant has known the poseur-buyer as a policeman for almost five years cannot be considered as a strong deterrent which would prevent the former from entering into illegal transactions with the latter. As this Court has noted many times, drug pushers have become increasingly daring in the operation of their illicit trade and have not hesitated to act openly, almost casually and even in scornful violation of the law, in selling prohibited drugs to any and all buyers. In real life, pushers, especially small-quantity or retail pushers, sell their prohibited wares to customers, be they strangers or not, who have the price of the drug, and this fact the Court has recognized. Besides, it will be noted that Pat. Napomuceno had on two occasions bought shabu from appellant as part of a test-buy operation which was primarily intended to gain appellant's confidence.
ACQUITTAL AS TO ILLEGAL POSSESSION In acquitting appellant in the first case, the court below made the following ratiocination: The court, however, is not inclined to sustain the charge of illegal possession of additional shabu and paraphernalia to facilitate its sale and consumption. A trader, whether he be legal or illegal, is expected to have stocks of his me(r)chandise ready at all times to be sold to prospective buyers. The seller or trader cannot be held liable anymore for the possession of these stock. We are taken back by this reasoning, not only because we find it absurd and illogical, but because of its total disregard of the holding in U. S. vs. Look Chaw, handed down as early as 1911 and which has stood the test of time with its recent reiterations by this Court; and we are intrigued how these cases have escaped the attention of the lower court and have been glossed over sub silentio by the Solicitor General. We, therefore, deem it necessary to reproduce the pertinent pronouncements in said case. True it is, we assert, that it is one crime to possess opium, punished by section of the Act, and another, to sell opium, penalized by section 5 of the same Act before cited.
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And it is also true that when one single act constitutes two or more crimes, or when one of them is a necessary means for the commission of the other, only the penalty corresponding to the more serious crime shall be imposed in its maximum degree, . . . . But the illegal, possession of 137 cans of opium and the illegal sale of 30 cans of opium, which are the two acts confessed by the accused, are not one act which constitutes two crimes, nor a crime which is a necessary means for the commission of another. They are two isolated acts, punishable each of them, in themselves. Only in the event where all the amount of the opium possessed and seized be in its totality the same as that which was possessed with the sole purpose of being delivered as the matter or subject of a sale previously agreed upon, could it be said, in the opinion of this court, that the possession of the opium was a necessary means to effect the delivery by reason of the sale, and that the sale agreed upon was the sole reason for the possession of the opium seized. . . . . (Emphasis supplied.) Of course, with the acquittal of appellant for his illegal possession of shabu, albeit distinct from that which he sold in the buy-bust, operation, he may no longer be proceeded against for the first offense.
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Case No. 8: People vs. Tira POSSESSION (ACTUAL AND CONSTRUCTIVE) OF REGULATED DRUGS •
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This crime is mala prohibita, and, as such, criminal intent is not an essential element. However, the prosecution must prove that the accused had the intent to possess (animus posidendi) the drugs. Possession, under the law, includes not only actual possession, but also constructive possession. Actual possession exists when the drug is in the immediate physical possession or control of the accused. On the other hand, constructive possession exists when the drug is under the dominion and control of the accused or when he has the right to exercise dominion and control over the place where it is found. Exclusive possession or control is not necessary. The accused cannot avoid conviction if his right to exercise control and dominion over the place where the contraband is located, is shared with another. While it is not necessary that the property to be searched or seized should be owned by the person against whom the search warrant is issued, there must be sufficient showing that the property is under appellant’s control or possession. The CA, in its Decision, referred to the possession of regulated drugs by the petitioner as a constructive one. Constructive possession exists when the drug is under the dominion and control of the accused or when he has the right to exercise dominion and control over the place where it is found. The records are void of any evidence to show that petitioner owns the nipa hut in question nor was it established that he used the said structure as a shop. The RTC, as well as the CA, merely presumed that petitioner used the said structure due to the presence of electrical materials, the petitioner being an electrician by profession.
CRIMES COMMITTED BY THE APPELLANTS •
We find and so hold that the appellants are guilty of two separate crimes: • (a) possession of regulated drugs under Section 16, in relation to Section 20, of Rep. Act No. 6425, as amended, for their possession of methamphetamine hydrochloride, a regulated drug; and, • (b) violation of Section 8, in relation to Section 20 of the law, for their possession of marijuana, a prohibited drug. Although only one Information was filed against the appellants, nevertheless, they could be tried and convicted for the crimes alleged therein and proved by the prosecution. In this case, the appellants were charged for violation of possession of marijuana and shabu in one Information
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The Information is defective because it charges two crimes. The appellants should have filed a motion to quash the Information under Section 3, Rule 117 of the Revised Rules of Court before their arraignment. They failed to do so. Hence, under Rule 120, Section 3 of the said rule, the appellants may be convicted of the crimes charged.
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Case No. 9: People vs Pancho PROOF IN ORDER FOR PROSECUTION FOR ILLEGAL POSSESSION OF A DANGEROUS DRUG TO PROSPER • • •
the accused was in possession of an item or an object identified to be a prohibited or regulated drug, such possession is not authorized by law, and the accused was freely and consciously aware of being in possession of the drug.
CHAIN OF CUSTODY OF ILLEGAL DRUGS IN THIS CASE IS NOT BROKEN •
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The prosecution established that PO1 Veloso seized three packets of shabu from the bedroom of accused-appellant. He handed them over to PO2 Ilagan, who made markings on the items and prepared a confiscation receipt of the same while in appellant's house. PO2 Ilagan brought the confiscated shabu to the police station where he prepared a letter-request addressed to the PNP Crime Laboratory. It was PO2 Ilagan, accompanied by PO1 Veloso, who went to the PNP Crime Laboratory to bring the specimen and the letter-request. PO2 Roma received the shabu and forwarded the same to the forensic chemist. The chain of custody was testified to by the police authorities. Clearly, the recovery and the handling of the seized illegal drugs were satisfactorily established in this case. The failure of the members of the raiding team to deliver the seized items to the judge who issued the warrant becomes immaterial because records show that the chain of custody is intact. What is of utmost importance is the preservation of the integrity and [the] evidentiary value of the seized items, as the same would be utilized in the determination of the guilt or innocence of the accused.
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Case No. 10: People vs. Dasigan In particular, accused-appellant avers that the prosecution miserably failed to preserve the integrity of the seized items as well as to establish its unbroken chain of custody, as no photographs were taken by the apprehending officers, and as, although an inventory was conducted, it was seriously flawed because it was not conducted immediately after the accused-appellant's arrest and was not shown to have been made in the presence of selected public officials. - SC said that the appeal is partly meritorious. MARKING OF THE SEIZED DRUGS WERE NOT MADE IN THE PLACE WHERE THE ARREST HAPPENED DUE TO FEAR THAT THE ACCUSED MAY HAVE BACK-UP, KNOWING THE PLACE TO BE NOTORIOUS •
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The marking of the seized substance immediately upon arrival at the police station qualified as a compliance with the marking requirement. Such can also be said here, especially in view of the explanation of PCI Meris that the place of arrest had a notorious reputation based on his personal knowledge as well as on police statistics, and that the arresting officers deemed it best that they leave said place right after the arrest of the accused-appellant for fear that the latter might have some back-up. Clearly, there was no hiatus or confusion in the confiscation, handling, custody and examination of the shabu. The shabu that was seized from accused-appellant, taken to the PDEA Office and thereat duly marked, then taken to the crime laboratory and subjected to a qualitative examination, and thereafter introduced in evidence against accused-appellant was the same shabu confiscated from accusedappellant when she was caught in flagrante delicto possessing the same.
IN A SUCCESSFUL PROSECUTION FOR OFFENSES INVOLVING THE ILLEGAL SALE OF DANGEROUS DRUGS UNDER SECTION 5, ARTICLE II OF R.A. NO. 9165, THE FOLLOWING ELEMENTS MUST CONCUR: 1. The identities of the buyer and seller, object, and consideration; and 2. The delivery of the thing sold and the payment for it. • •
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What is material is proof that the transaction or sale actually took place, coupled with the presentation in court of evidence of corpus delicti. It is material in illegal sale of dangerous drugs that the sale actually took place, and what consummates the buy-bust transaction is the delivery of the drugs to the poseur-buyer and, in turn, the seller's receipt of the marked money. While the parties may have agreed on the selling price of the shabu and delivery of payment was intended, these do not prove consummated sale. Receipt of the marked money, whether done before delivery of the drugs or after, is required. In the case at bar, although accused-appellant was shown the consideration before she handed over the subject shabu to the poseur-buyer, such is not sufficient to consummate the sale. As previously held by the Court, looking at a thing does not transfer possession of it to the beholder. Such a tenet would make window shoppers liable for theft.
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Case No. 11: People vs. Dela Cruz The Issue: It was not made clear by the prosecution where the markings of the three sachets of shabu were made THE DELIVERY OF THE ILLICIT DRUG TO THE POSEUR-BUYER AND THE RECEIPT BY THE SELLER OF THE MARKED MONEY SUCCESSFULLY CONSUMMATE THE BUY-BUST TRANSACTION •
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The prosecution submitted evidence that duly established the elements of illegal sale of shabu. It positively identified appellant as the seller of the seized illegal substance which turned out to be positive for methamphetamine hydrochloride commonly known as shabu, a dangerous drug. Appellant sold and delivered the drug for P1,500.00 to Ebio, a police asset who acted as poseur-buyer. Verily, all the elements of the sale of illegal drugs were established to support appellant's conviction of the said offense. In this case, Ebio turned over to PO3 Bongon the two sachets of shabu sold to him by the appellant. Together with another sachet of shabu he recovered from appellant, PO3 Bongon immediately marked each sachet with "RSB-1," "RSB-2" and "RSB-3," respectively, before giving them to SPO1 Antonio. While it is true that the exact location where the markings were made was not mentioned, it can reasonably be concluded that the same happened during appellant's apprehension, in transit to the police station or before the sachets were turned over to SPO1 Antonio in the police station. Upon receipt, SPO1 Antonio then submitted the sachets to the crime laboratory. PO2 Henry Escalora, Sr. received the three sachets and handed them to Forensic Chemist Clemen whose examination of the contents thereof revealed that they were positive for shabu. During trial, Forensic Chemist Clemen presented and identified the specimens. Clearly, the prosecution was able to establish the chain of custody of the shabu from its possession by the police officers, testing in the laboratory to determine its composition, until the same was presented as evidence in court. Hence, even if there was no statement as to where the markings were made, what is important is that the seized specimen never left the custody of PO3 Bongon until he turned over the same to SPO1 Antonio and that thereafter, the chain of custody was shown to be unbroken. Indeed, the integrity and evidentiary value of the seized shabu is shown to have been properly preserved and the crucial links in the chain of custody unbroken.
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Case No. 12: People vs. Dela Peña Violation of Sections 5 and 11 of RA 9165 The Issues: Whether the elements for the sale of illegal drugs were duly established; Whether there is a failure of the prosecution to prove beyond reasonable doubt the corpus delicti THE ELEMENTS OF THE CRIME WERE ESTABLISHED BEYOND REASONABLE DOUBT •
ILLEGAL POSSESSION • the accused was in possession of an item or an object identified to be a prohibited or regulated drug, • such possession is not authorized by law, and • the accused was freely and consciously aware of being in possession of the drug.
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ILLEGAL SALE • The identities of the buyer and seller, object, and consideration; and • The delivery of the thing sold and the payment for it.
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All the elements of the crimes of illegal sale and illegal possession of shabu, a dangerous drug, were clearly proven by the prosecution through the credible testimony of IO1 Kintanar. The identity of the parties to the sale transaction (Dela Peña and IO1 Kintanar) involving the subject sachet of shabu worth P300.00 and the consummation of the sale were duly established by IO1 Kintanar. IO1 Kintanar's testimony likewise established the illegal possession of sachets of shabu by Dela Peña and Delima. No ill-motive was shown by the defense for IO1 Kintanar to unjustly implicate Dela Peña and Delima in the present cases. Where there is no evidence that the principal witness for the prosecution was actuated by improper motive, like IO1 Kintanar in the present case, the presumption is that he was not actuated and his testimony is entitled to full faith and credit.
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THE PROSECUTION ESTABLISHED THE UNBROKEN CHAIN OF CUSTODY OF THE SACHETS OF SHABU SEIZED FROM DELA PEÑA AND DELIMA •
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The prosecution must establish with moral certainty that the specimen submitted to the crime laboratory and found positive for dangerous drugs, and finally introduced in evidence against the accused was the same illegal drug that was confiscated from him. Here, the unbroken chain of custody of the sachets of shabu seized from Dela Peña and Delima was established by the prosecution through the testimonies of IO1 Kintanar and IO1 Rallos, from the time of their confiscation and delivery to the crime laboratory for examination until their presentation in court. The failure of the law enforcers to comply strictly with Section 21 of R.A. 9165 is not fatal, and its non-compliance will not render the arrest of an accused illegal or the items seized or confiscated from him inadmissible. To sum up, from the time the illegal drugs were seized from Dela Peña and Delima, up to their delivery to the crime laboratory for chemical examination, until their presentation in evidence before the RTC, the integrity of said items was preserved. No evidence was adduced by the defense showing that they were tainted in any manner. Verily, the integrity of the evidence is presumed to be preserved unless there is a showing of bad faith, ill will, or proof that the evidence has been tampered with. Dela Peña and Delima failed to discharge their burden of proving that the evidence was tampered to overcome the presumption of regularity in the handling of exhibits by public officers and the presumption that the public officers properly discharged their duties. Page 15 of 21
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Case No. 14: Derilo vs. People The Issues: First, the petitioner argues that the search became unlawful when SPO1 Evasco delegated the task of searching the bedroom to the barangay tanods for fear of being "branded" as planting evidence. Consequently, any evidence which may have been obtained during the search is absolutely inadmissible for being the "fruit of the poisonous tree." Second, the petitioner insists that there are inconsistencies with the prosecution witnesses' testimonies as to who actually found the matchbox containing the twelve (12) plastic sachets and the suspected drug paraphernalia. And third, the petitioner claims that the chain of custody over the seized items "appears broken and questionable," considering that the seized items were not marked in his presence. This puts into question the identity of the drug specimens submitted to the PNP Crime Laboratory for examination. 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. •
Thus, the following links must be established to ensure the preservation of the identity and integrity of the confiscated drug: 1) the seizure and marking, if practicable, of the illegal drug recovered from the accused by the apprehending officer; 2) the turnover of the illegal drug seized by the apprehending officer to the investigating officer; 3) the turnover by the investigating officer of the illegal drug to the forensic chemist for laboratory examination; and 4) the turnover and submission of the marked illegal drug seized from the forensic chemist to the court.
THE PROSECUTION FAILED TO ESTABLISH THAT THE DRUG SPECIMENS PRESENTED IN COURT ARE THOSE ALLEGEDLY SEIZED FROM THE PETITIONER •
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In other words, the marking immediately upon confiscation or recovery of the dangerous drugs or related items is indispensable in the preservation of their integrity and evidentiary value. The records are bereft of any evidence that would clearly show that the twelve (12) plastic sachets supposedly containing the shabu were ever marked by SPO1 Evasco, whether at the scene or at the police station, and that they were marked in the presence of the petitioner. Second, there appears to be unexplained inconsistencies in the drug specimens submitted by the police officers to the PNP Crime Laboratory for examination. Third, the prosecution's evidence is seriously lacking in details as to the links in the chain of custody of the seized items from the time they were confiscated up to the time they were presented in court.
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Case No. 15: People vs. Asislo The Issue: Accused-appellant Asislo now seeks his acquittal before this Court lamenting that the prosecution failed to establish an unbroken link in the chain of custody. He avers that the PDEA agents did not comply with the procedures mandated by Section 21 of R.A. No. 9165, since there was a lapse of time from the seizure of the illicit drugs to the marking and inventory. In his Supplemental Brief, Asislo maintains that the fact that it was only Natividad who marked the confiscated drugs casts a shadow of doubt to the authenticity of the evidence presented before the court. (SC - The appeal lacks merit.) WHILE THE CHAIN OF CUSTODY SHOULD IDEALLY BE PERFECT, IN REALITY IT IS NOT, AS IT IS ALMOST ALWAYS IMPOSSIBLE TO OBTAIN AN UNBROKEN CHAIN. •
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The records of the case show that the authorities were able to preserve the integrity of the seized marijuana, and establish in the trial that the links in the chain of custody of the same were not compromised. While it is true that the drugs were not marked immediately after its seizure and not in the presence of the accused, the prosecution was able to prove, however, that the bricks of marijuana contained in five sacks and a plastic bag confiscated during the buy-bust operation were the same items presented and identified before the court. Although it was not specified who received the items in the laboratory in the testimony of the prosecution witnesses, the fact that the minute details of the seized items described in the chemistry report coincide with the specifications in the inventory prepared by the PDEA leaves no doubt that the bricks of marijuana received by the laboratory for examination were the same drugs seized by the PDEA agents from Asislo.
ILLEGAL TRANSPORTATION OF DANGEROUS DRUGS • •
“Transport" means "to carry or convey from one place to another.” There is no definitive moment when an accused "transports" a prohibited drug. When the circumstances establish the purpose of an accused to transport and the fact of transportation itself, there should be no question as to the perpetration of the criminal act. The fact that there is actual conveyance suffices to support a finding that the act of transporting was committed. In the instant case, records established beyond any doubt that accused-appellant Asislo was found in possession of the sacks containing marijuana, and was arrested while in the act of delivering or transporting such illegal drugs to Natividad, the poseur-buyer, at the agreed place in Dontogan, Green Valley, Baguio City, near a certain "car wash.”
POSSESSION OF PROHIBITED DRUGS, COUPLED WITH THE FACT THAT THE POSSESSOR IS NOT A USER THEREOF, CANNOT INDICATE ANYTHING ELSE BUT THE INTENTION TO SELL, DISTRIBUTE OR DELIVER THE PROHIBITED STUFF •
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In the case at bar, Asislo was found in possession of 110 kilograms of dried marijuana leaves contained in five sacks and a plastic bag, and that his drug test yielded negative result. The following circumstances strongly indicate that he has the intention to sell, distribute, deliver or transport the said marijuana. Based on the charges against Asislo and the evidence presented by the prosecution, accused-appellant Asislo is guilty beyond reasonable doubt of illegal delivery and transportation of marijuana under Article II, Section 5 of R.A. No. 9165.
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Case No. 16: People vs. Chi Chan Liu The Issue: Whether or not all the elements of the crime of importation of regulated drugs punishable under Section 14, Article III, in relation to Section 21 WHETHER OR NOT ALL THE ELEMENTS OF THE CRIME OF IMPORTATION OF REGULATED DRUGS PUNISHABLE UNDER SECTION 14, ARTICLE III, IN RELATION TO SECTION 21 (A), ARTICLE IV OF REPUBLIC ACT 6425, AS AMENDED BY REPUBLIC ACT 7659, ARE PRESENT IN THIS CASE. ORIGIN OF THE DRUGS •
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There can be no question that, unless a ship on which opium is alleged to have been illegally imported comes from a foreign country, there is no importation. If the ship came to Olongapo from Zamboanga, for example, the charge that opium was illegally imported on her into the port of Olongapo, i.e., into the Philippine Islands, could not be sustained no matter how much opium she had on board or how much was discharged. In order to establish the crime of importation as defined by the Opium Law, it must be shown that the vessel from which the opium is landed or on which it arrived in Philippine waters came from a foreign port. Section 4 of Act No. 2381 provides that: • Any person who shall unlawfully import or bring any prohibited drug into the Philippine Islands, or assist in so doing, shall be punished . . . . It is clear that a breach of this provision involves the bringing of opium into the Philippine Islands from a foreign country. Indeed, it is a prime essential of the crime defined by that section. Without it, no crime under that section can be established. The mere fact that the appellants were Chinese nationals as well as their penchant for making reference to China where they could obtain money to bribe the apprehending officers does not necessarily mean that the confiscated drugs necessarily came from China. The records only bear the fact that the speed boat on which the appellants were apprehended was docked on the coast of Ambil Island in the Municipality of Looc, Occidental Mindoro. But it could have easily come from some other locality within the country, and not necessarily from China or any foreign port, as held by the CA. This Court notes that for a vessel which resembles a speed boat, it is rather difficult to suppose how appellants made their way to the shores of Occidental Mindoro from China. Moreover, an earlier intelligence report that foreign nationals on board extraordinary types of vessels were seen along the sealine of Lubang Island in Cavite, and Quezon Province, does not sufficiently prove the allegation that appellants herein were, in fact, importing illegal drugs in the country from an external source. This, notwithstanding, had the prosecution presented more concrete evidence to convince this Court that the prohibited drugs, indeed, came from a source outside of the Philippines, the importation contention could have been sustained. Appellants' exoneration from illegal importation of regulated drugs under Section 14, Article III of RA No. 6425 does not, however, free them from all criminal liability for their possession of the same is clearly evident. As will be seen from this provision, to convict of an offense included in the charge in the information it is not sufficient that the crime may be included, but it must necessarily be included. While, the case before us, the possession of the opium by the appellants was proved beyond question and they might have been convicted of that offense if they have been charged therewith, nevertheless, such possession was not an essential element of the crime of illegal importation and was not necessarily included therein. The importation was complete, to say the least, when the ship carrying it anchored in Subic Bay. It was not necessary that the opium be discharged or that it be taken from the ship. It was sufficient that the opium was brought into the waters of the Philippine Islands on a boat destined for a Philippine port and which subsequently Page 18 of 21
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anchored in a port of the Philippine Islands with intent to discharge its cargo. That being the case it is clear that possession, either actual or constructive, is not a necessary element of the crime of illegal importation nor is it necessarily included therein. Therefore, in acquitting the appellants of the charge of illegal importation, we cannot legally convict them of the crime of illegal possession.
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Case No. 17: People vs. Pavia POSSESSION OF DRUGS DURING PARTIES, SOCIAL GATHERINGS OR MEETINGS •
The elements for the illegal possession of dangerous drugs under Section 13 of R.A. No. 9165 are the same as those for the violation of Section 11 of the law: (1) possession by the accused of an item or object identified to be a prohibited or dangerous drug; (2) such possession is not authorized by law; (3) the free and conscious possession of the drug by the accused, with the additional element that (4) the accused possessed the prohibited or dangerous drug during a social gathering or meeting, or in the company of at least two persons.
CHAIN OF CUSTODY WAS ESTABLISHED •
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Contrary to what the [appellants] want to portray, the chain of custody of the seized prohibited drug was shown not to have been broken. After the seizure of the plastic sachets containing white crystalline substance from the [appellants'] possession and of the various drug paraphernalia in the living room, the police immediately brought the [appellants] to the police station, together with the seized items. PO3 Parunggao himself brought these items to the police station and marked them. The plastic sachets containing white crystalline substance was marked "JB" and "JP". These confiscated items were immediately turned over by PO2 Bautista to the PNP Regional Crime Laboratory Office Calabarzon, Camp Vicente Lim, Calamba City for examination to determine the presence of dangerous drugs. After a qualitative examination conducted on the specimens, Forensic Chemist Lorna Ravelas Tria concluded that the plastic sachets recovered from the accused-appellants tested positive for methylamphetamine hydrochloride, a prohibited drug, per Chemistry Report Nos. D-0381-05 and D-0382-05. When the prosecution presented these marked specimens in court, PO2 Bautista positively identified them to be the same items they seized from the [appellants] and which PO3 Parunggao later marked at the police station, from where the seized items were turned over to the laboratory for examination based on a duly prepared request. Thus, the prosecution established the crucial link in the chain of custody of the seized items from the time they were first discovered until they were brought for examination. Besides, as earlier stated, the [appellants] did not contest the admissibility of the seized items during the trial. The integrity and the evidentiary value of the drugs seized from the accused-appellants were therefore duly proven not to have been compromised.
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Case No. 19: People vs. Akmad The Issue: Accused-appellants maintain that the testimony defeated the prosecution's claim of illegal sale of drugs. They insist that no sale transaction was consummated between them and PO3 Navarette because one of the essential elements of a sale, i.e., the price certain in money or its equivalent is absent. PROSECUTION ESTABLISHED GUILT BEYOND REASONABLE DOUBT DUE TO ABSENCE OF MARKED MONEY •
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In the prosecution of a case of illegal sale of dangerous drugs, the absence of marked money does not create a hiatus in the evidence for the prosecution as long as the sale of dangerous drug is adequately proven and the drug subject of the transaction is presented before the court. Neither law nor jurisprudence requires the presentation of any money used in the buy-bust operation. What is material is the proof that the transaction or sale took place, coupled with the presentation in court of the corpus delicti as evidence. In the instant case, the prosecution was able to establish the consummated transaction between the poseur-buyer and accused-appellants. Moreover, we note that accused-appellants were charged with selling, trading, delivering, giving away, dispatching in transit and transporting dangerous drugs under Section 5, Article II of R.A. No. 9165. The charge was not limited to the selling of dangerous drugs. The aforesaid provision of law punishes not only the sale but also the mere act of delivery of prohibited drugs after the offer to buy by the entrapping officer has been accepted by the seller. In the distribution of prohibited drugs, the payment of any consideration is immaterial. The mere act of distributing the prohibited drugs to others is in itself a punishable offense.
UNBROKEN CHAIN OF CUSTODY •
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It is clear from the foregoing that the substance marked, tested and offered in evidence was the same item seized from accused-appellants. This position by the prosecution was bolstered by the defense's admission during the pre-trial conference of the existence, due execution and genuineness of the request for laboratory examination, the Chemistry Report and specimen submitted. We have previously ruled that as long as the state can show by record or testimony that the integrity of the evidence has not been compromised by accounting for the continuous whereabouts of the object evidence at least between the time it came into the possession of the police officers until it was tested in the laboratory, then the prosecution can maintain that it was able to prove the guilt of the accused beyond reasonable doubt.
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