Court must be strict if drugs seized of tiny amount
In dangerous drugs cases, the corpus delicti is the dangerous drug itself. Thus, it is imperative that the integrity of the seized dangerous drug be preserved.In People v. Casacop (G.R. No. 208685. March 09, 2015), accused-appellant alleges that the chain of custody was broken. He argues that the seized item should have been marked immediately after it was confiscated. One (1) small heat-sealed transparent sachet containing shabu weighing zero point zero four (0.04) gram, a regulated drug, was seized from Casacop.
HELD: Accused-appellant Rodrigo Casacop y De Castro is ACQUITTED for failure of the prosecution to prove his guilt beyond reasonable doubt. He is ordered immediately RELEASED from detention, unless he is confined for any other lawful cause.
Section 21 of Republic Act No. 9165 provides for the manner by which law enforcement officers should handle seized items in dangerous drugs cases. However, strict compliance with the chain of custody requirement is not always the case, as provided by the Implementing Rules and Regulations of Republic Act No. 9165.
People v. Remigio restated the chain of custody required in buy-bust operations as follows:
- First, the seizure and marking, if practicable, of the illegal drug recovered from the accused by the apprehending officer;
- Second, the turnover of the illegal drug seized 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.
The transaction was between accused-appellant and the poseur-buyer, while POl Bautista watched the transaction a few meters away.
PROSECUTOR SERRRANO [sic] (On Direct Examination) Q: So what did your asset do, if any? A: He approached the house of the accused to buy shabu, Sir. Q: And what happened after he approached the house of the accused purposely to buy dangerous drug? A: I saw the accused run out of his house and made transaction to [sic] our poseur buyer, Sir. Q: How far were you again[,] Mr. Witness[,] when you noticed that the accused came out of his house and approached your asset? A: More or less seven (7) meters, Sir. Q: And what happened next as soon as the accused went out of his house and approached your asset? A: I saw the accused hand over something to our asset, Sir.
His statement that he saw "accused[-appellant] hand over something" creates reasonable doubt whether the item given by the poseur-buyer to POl Bautista is the same "something" that accused-appellant allegedly gave the poseur-buyer.
Plaintiff-appellee alleges that accused-appellant tried to flee when he sensed that he would be arrested.
From the time the transaction took place to the time accused-appellant was arrested, there is nothing on record to show how the integrity of the seized item was preserved.
Plaintiff-appellee merely alleges that accused-appellant was arrested and was apprised of his constitutional rights.
Next, POl Bautista wrote "BOTE" on the marked money after it was confiscated from accused-appellant. He then gave the marked money to SPO1 Alvin Glorioso while the asset gave POl Bautista a "small heat sealed transparent sachet of shabu[.]"
In POl Bautista's testimony:
PO1 Bautista's testimony is silent as to where the seized sachet was marked.
PROSECUTOR SERRANO (On Direct Examination) Q: How about the item that was given by the accused to your asset, what happened to that item? A: It was handed over to me by our asset and I put the marking, Sir. Q: Will you please describe to us that item that was handed over to you by your asset, the very same item that the accused gave to your asset in exchange for the marked money? A: A small heat[-]sealed transparent plastic sachet containing white substance suspected as shabu, Sir. Q: You said you made marking on that sachet? A: Yes, Sir. Q: What else did you do[,] if any? A: After I put the marking, we brought it to the Philippine National Police Crime Laboratory, Sir.
In People v. Sabdula:
We are not unaware that the seized plastic sachet already bore the markings "BC 02-01-04" when it was examined by Forensic Chemist Jabonillo. In the absence, however, of specifics on how, when and where this marking was done and who witnessed the marking procedure, we cannot accept this marking as compliance with the required chain of custody requirement. There was also no stipulation between the parties regarding the circumstances surrounding this marking. We note in this regard that it is not enough that the seized drug be marked; the marking must likewise be made in the presence of the apprehended violator. As earlier stated, the police did not at any time ever hint that they marked the seized drug.The prosecution did not, at the very least, identify the person who turned the seized sachet over to the Philippine National Police Crime Laboratory when it was submitted for examination. Hence, there is another break in the chain of custody.
The Court also noted the discrepancy in the names of the police officers who examined the contents of the seized sachet. According to plaintiff-appellee, the sachet was assigned Chemistry Report Number D-1652-02. Police Senior Inspector Lorna Ravelas Tria conducted the examination of the contents in the sachet.
However, the Court of Appeals' and the trial court's Decisions state that the contents of the sachet were examined by Police Inspector Donna Villa Huelgas. This leads us to doubt whether the corpus delicti was established.
The seized shabu weighed 0.04 grams, a miniscule amount. In People v. Holgado:
Compliance with the chain of custody requirement provided by Section 21, therefore, ensures the integrity of confiscated, seized, and/or surrendered drugs and/or drug paraphernalia in four (4) respects: first, the nature of the substances or items seized; second, the quantity (e.g., weight) of the substances or items seized; third, the relation of the substances or items seized to the incident allegedly causing their seizure; and fourth, the relation of the substances or items seized to the person/s alleged to have been in possession of or peddling them. Compliance with this requirement forecloses opportunities for planting, contaminating, or tampering of evidence in any manner.
By failing to establish identity of the corpus delicti, non-compliance with Section 21 indicates a failure to establish an element of the offense of illegal sale of dangerous drugs. It follows that this non-compliance suffices as a ground for acquittal. As this court stated in People v. Lorenzo:
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.The prosecution's sweeping guarantees as to the identity and integrity of seized drugs and drug paraphernalia will not secure a conviction. Not even the presumption of regularity in the performance of official duties will suffice. In fact, whatever presumption there is as to the regularity of the manner by which officers took and maintained custody of the seized items is "negated." Republic Act No. 9165 requires compliance with Section 21.
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While the miniscule amount of narcotics seized is by itself not a ground for acquittal, this circumstance underscores the need for more exacting compliance with Section 21....Applying People v. Holgado, the buy-bust team in this case should have been more meticulous in complying with Section 21 of Republic Act No. 9165 to preserve the integrity of the seized shabu. There is a greater possibility of tampering or contaminating the corpus delicti, since 0.04 grams of shabu is a miniscule amount. Worse, the buy-bust team did not even try to explain the reason for non-compliance with Section 21.
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Trial courts should meticulously consider the factual intricacies of cases involving violations of Republic Act No. 9165. All details that factor into an ostensibly uncomplicated and barefaced narrative must be scrupulously considered. Courts must employ heightened scrutiny, consistent with the requirement of proof beyond reasonable doubt, in evaluating cases involving miniscule amounts of drugs. These can be readily planted and tampered.
Non-presentation of the poseur-buyer also defeats the case of the plaintiff-appellee. The testimony of the poseur-buyer is not "merely corroborative of the apprehending officers-eyewitnesses' testimonies[,]" as plaintiff-appellee alleges. The poseur-buyer had personal knowledge of the transaction since he conducted the actual transaction. PO1 Bautista was merely an observer from several meters away. Further, the amount involved is so small that the reason for not presenting the poseur-buyer does not square with such a miniscule amount.
Other requirements provided under Section 21 of Republic Act No. 9165 were not complied with. No inventory was conducted, and the records of this case do not show that the seized items were photographed.
During cross examination, PO1 Bautista stated:
The presumption of regularity in the performance of official duties cannot prevail over the presumption of innocence of accused-appellant. It is not enough to convince this court that the non-compliance with Section 21 of Republic Act No. 9165 was justified.
Atty. Ilagan: Before you conducted this buy-bust operation[,] Mr. Witness[,] do you remember if you prepared [a] pre-operation report? A: I cannot recall, Sir. Q: After you confiscated the alleged marked money from the accused, did you prepare an inventory [,] Mr. Witness? A: As far as I can recall, no Sir. Atty. Ilagan: Do you remember[,] Mr. Witness[,] if you were authorized by your Chief of Police to conduct this buy bust operation? A: Yes, Sir. Q: And who was the Chief of Police at that time? A: It was Police Supt. Reyes, Sir. Q: Was this authority in writing, Mr. Witness? A: No, Sir. Q: So you mean to say it was a mere verbal instruction? A: Yes, Sir.
In People v. Ong:
To determine whether there was a valid entrapment or whether proper procedures were undertaken in effecting the buy-bust operation, it is incumbent upon the courts to make sure that the details of the operation are clearly and adequately laid out through relevant, material and competent evidence. For, the courts could not merely rely on but must apply with studied restraint the presumption of regularity in the performance of official duty by law enforcement agents.Failure to comply with Section 21 of Republic Act No. 9165 will result in the acquittal of the accused-appellant.
In People v. dela Cruz:
Non-compliance 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, thus, engender the acquittal of an accused.Plaintiff-appellee's allegation that Republic Act No. 6425 was still in effect when accused-appellant was apprehended is misleading. Republic Act No. 9165 was approved on June 7, 2002. It was published in the Manila Times on June 19, 2002. Thus, when accused-appellant was apprehended on July 24, 2002, Republic Act No. 9165 had taken effect. As discussed by the Court of Appeals:
As to the issue of non-compliance with the rules in handling and custody of confiscated illegal drugs, it is not amiss to point out that Republic Act No. 9165 already took effect when the accused-appellant was apprehended and charged for the illegal sale of drugs, contrary to what the Office of the Solicitor General posited that the law effective at the time of the commission of the crime is Republic Act No. 6425.The Supreme Court reiterated its statements in People v. Holgado:
It is lamentable that while our dockets are clogged with prosecutions under Republic Act No. 9165 involving small-time drug users and retailers, we are seriously short of prosecutions involving the proverbial "big fish." We are swamped with cases involving small fry who have been arrested for miniscule amounts. While they are certainly a bane to our society, small retailers are but low-lying fruits in an exceedingly vast network of drug cartels. Both law enforcers and prosecutors should realize that the more effective and efficient strategy is to focus resources more on the source and true leadership of these nefarious organizations. Otherwise, all these executive and judicial resources expended to attempt to convict an accused for 0.05 gram of shabu under doubtful custodial arrangements will hardly make a dent in the overall picture. It might in fact be distracting our law enforcers from their more challenging task: to uproot the causes of this drug menace. We stand ready to assess cases involving greater amounts of drugs and the leadership of these cartels.
ADDITIONAL READINGS:
[1] People v. Almodiel, G.R. No. 200951, September 5, 2012, 680 SCRA 306, 316 [Per J. Carpio, Second Division].
[2] People v. Beran, G.R. No. 203028, January 15, 2014 [Per J. Reyes, First Division].
[3] People v. Adrid, G.R. No. 201845, March 6, 2013, 692 SCRA 683, 697 [Per J. Velasco, Jr., Third Division].
[4] G.R. No. 189277, December 5, 2012, 687 SCRA 336 [Per J. Perez, Second Division].
[5] People v. Kamad, 624 Phil. 289, 304 (2010) [Per J. Brion, Second Division].
[6] G.R. No. 184758, April 21, 2014 [Per J. Brion, Second Division].
[7] G.R. No. 207992, August 11, 2014 [Per J. Leonen, Third Division].
[8] People v. Lorenzo, 633 Phil. 393, 403 (2010) [Per J. Perez, Second Division]
[9] People v. Navarrete, G.R. No. 185211, June 6, 2011, 650 SCRA 607, 618 [Per J. Carpio Morales, Third Division].
[10] People v. Abbu, 317 Phil. 518, 524 (1995) [Per J. Vitug, Third Division].
[11] People v. Ong, 476 Phil. 553, 572 (2004) [Per J. Puno, En Banc].
[12] 476 Phil. 553 (2004) [Per J. Puno, En Banc].
[13] G.R. No. 205821, October 1 2014 [Per J. Leonen, Second Division].
[14] G.R. No. 207992, August 11, 2014 [Per J. Leonen, Third Division].
