SC: Witness NOT always needed in drug buy-busts

The Supreme Court stressed in People v. Mendoza[1] that "without the insulating presence of the representative from the media or the DOJ], or any elected public official during the seizure and marking of the seized drugs, the evils of switching, "planting" or contamination of the evidence that had tainted the buy-busts conducted under the regime of R.A. No. 6425 (Dangerous Drugs Act of 1972) again reared their ugly heads as to negate the integrity and credibility of the seizure and confiscation of the said drugs that were evidence of the corpus delicti, and thus adversely affected the trustworthiness of the incrimination of the accused. Indeed, the presence of such witnesses would have preserved an unbroken chain of custody."[2]

The High Court enumerated in People v. Lulu Battung y Narmar[3] the possible circumstances to which absence of the required witnesses may be excused, to wit:
  1. Their attendance was impossible because the place of arrest was a remote area;
  2. Their safety during the inventory and photograph of the seized drugs was threatened by an immediate retaliatory action of the accused or any person/s acting for and in his/her behalf;
  3. The elected officials themselves were involved in the punishable acts sought to be apprehended;
  4. Earnest efforts to secure the presence of a DOJ or media representative and an elected public official within the period required under Article 125 of the Revised Penal Code proved futile through no fault of the arresting officers, who face the threat of being charged with arbitrary detention; or
  5. Time constraints and urgency of the anti-drug operations, which often rely on tips of confidential assets, prevented the law enforcers from obtaining the presence of the required witnesses even before the offenders could escape.[4]
The procedure in Section 21 of R.A. No. 9165 is a matter of substantive law, and cannot be brushed aside as a simple procedural technicality; or worse, ignored as an impediment to the conviction of illegal drug suspects.[5] While the non-compliance with Section 21 is not fatal to the prosecution's case, provided that the integrity and evidentiary value of the seized items are properly preserved by the apprehending officers, this exception will only be triggered by the existence of a ground that justifies departure from the general rule.[6]

The saving clause applies only (1) where the prosecution recognized the procedural lapses and, thereafter, explained the cited justifiable grounds, and (2) when the prosecution established that the integrity and evidentiary value of the evidence seized had been preserved.[7] As settled in People v. De Guzman y Danzil,[8] the justifiable ground for non-compliance must be proven as a fact because the Court cannot presume what these grounds are or that they even exist.[9] Despite the said non-observance, the prosecution, in this case, did not concede such lapses and tender any plausible explanation.

It is not enough for the apprehending officers to merely mark the seized sachets of shabu; the buy-bust team must also conduct a physical inventory and take photographs of the confiscated item in the presence of the persons required by law.[10] The prosecution must show that earnest efforts were employed in contacting the representatives enumerated under the law for "a sheer statement that representatives were unavailable - without so much as an explanation on whether serious attempts were employed to look for other representatives, given the circumstances - is to be regarded as a flimsy excuse."[11] It was held that police officers are ordinarily given sufficient time beginning from the moment they have received the information about the activities of the accused until the time of his arrest - to prepare for a buy-bust operation and, consequently, make the necessary arrangements beforehand knowing fully well that they would have to strictly comply with the set procedure prescribed in Section 21, Article II of R.A. No. 9165.[12] As such, law enforcement officers are compelled not only to state the reasons for their non-compliance, but must, in fact, also convince the Court that they exerted earnest efforts to comply with the mandated procedure, and that under the given circumstances, their actions were reasonable.[13]

Non-observance of the mandatory requirements under Section 21 of R.A. No. 9165 casts doubt on the integrity of the sachets of shabu supposedly seized from, in this case, the accused.[14] The prosecution's failure to comply with the chain of custody rule is equivalent to its failure to establish the corpus delicti and, therefore, its failure to prove that the crime was indeed committed.[15][16]

[1] 736 Phil. 749 (2014).

[2] Id. at 764 (emphases supplied).

[3] G.R. No. 230717, June 20, 2018.

[4] Id.

[5] People v. Umipung, 686 Phil. 1024, 1038 (2012).

[6] People v. Pringas, 558 Phil. 579, 594 (2007).

[7] People v. Roberto Andrada y Caumpued, G.R. No. 232299, June 20, 2018.

[8] 630 Phil. 637 (2010).

[9] Id. at 649.

[10] Lescano v. People, 778 Phil. 460, 476 (2016).

[11] People v. Umipang, supra note 36, at 1053.

[12] People v. Marcelino Crispo y Descalso, et al., G.R. No. 230065, March 14, 2018.

[13] People v. Raul Manansala v. Maninang, G.R. No. 229092, February 21, 2018.

[14] People v. Jaafar, 803 Phil. 582, 595 (2017).

[15] People v. Pagaduan, 641 Phil. 432, 449-450 (2010).

[16] G.R. No. 233466, August 07, 2019.