PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. RICO FELICILDA TINDUGAN, ACCUSED-APPELLANT.
QUIJANO-PADILLA, J.:
The Facts
Accused-appellant Rico Felicilda Tindugan was charged by the City Prosecutor of Cebu City in a Criminal Information[4] dated March 21, 2007 which read:
CBU-79575
“That on or about the 19th day of March 2007 at about 11:45 p.m., more or less, in the City of Cebu, Philippines and within the jurisdiction of this Honorable Court, the said accused, with deliberate intent, did then and there have in his possession and control One (1) medium plastic pack containing eight (8) plastic sachets of shabu weighing all in all 0.42 gram, a dangerous drug, without authority of law.
CONTRARY TO LAW.”[5]
Upon arraignment[6] on July 23, 2007, the accused-appellant, duly assisted by a counsel, pleaded not guilty to the crime charged.
Thereafter, trial on the merits ensued.
The Version of the Prosecution[7]
The facts as narrated by the plaintiff-appellee in its Brief[8] are as follows:
To substantiate the charge, State’s evidence disclosed that acting on the reports or informations from a resident of the place that accused is engaged in the illegal drug activities, surveillance was conducted by the Police Station 7 of Cebu City. The test buy operation was positive and pursuant to the letter-request, the illegal drug (shabu) examined positive for the presence of metamphetamine hydrochloride, per Chemistry Report No. D-177-2007.[9]
Finally, a team composed of P/Insp. Armando Canete (team leader), PO2 Miguel Enriquez, SPO4 Sanrico Jolejole, P/SInsp. Aureo Sanchez, PO2 Joel Lacson, PO1 Duane Aquino and PO3 Rene Barral implemented Search Warrant No. 1714-3-1207-15 against the herein accused at Upper Greenbelt, Quiot, Cebu City, they all proceeded to accused’s residence, a one storey house.[10]
After the police officers were allowed entrance to the house, accused, who was at the sala, was informed that they are police officers of the Pardo Police Station to implement the search warrant. The master’s bedroom and the kitchen, which were searched by officers Aquino and Enriquez, respectively, were negative of illegal drugs.[11]
Search proceeded at the sala by officer Enriquez, with the accused’s wife and two females around. Accused, who was also present, was sitting on a sofa at the sala. When the foam was pressed, found inserted between the edge of the back rest and the seat portion of the sofa were eight (8) packets of shabu, all placed in another plastic pack. Accused, who was seated in another sofa near to a sofa where the packs of shabu were found did not react to its recovery. Officer Enriquez turned over the illegal drugs to officer Jolejole. The latter placed the markings “RTF-19-03-01” to “RTF-19-03-08” on the eight packets of shabu while still at the residence of the accused. A Receipt of Property Seized and Certification of good conduct search were prepared by officer Jolejole. The latter turned over the marked packets of shabu to officer Barral for delivery to the PNP Crime Laboratory.[12]
The packets of shabu were received by PO3 Sudario of said laboratory, per his signature appearing on the rubber stamp impression “RECEIVED” and the logbook. The same were turned over to P/C Insp. Mutchit Salinas, who after examination found the same to contain methamphetamine hydrochloride, a dangerous drug, as evidenced by Chemistry Report No. D-350-2007.[13]
The Version of the Accused-Appellant
The defense presented three witnesses, Marzan Arabes, Noralyn Tindugan and the accused himself, Rico Tindugan. From the testimony of the accused and as summarized in his Brief[14], the following incident transpired:
On March 19, 2007 at around 11: 45 in the evening, Rico Tindugan and his family were already sleeping when police officers Jolejole, Lacson, Enriquez and Aquino arrived to implement a search warrant. Accused-appellant declared that he has seen these police officers before during cockfights and he has seen their service vehicle parked outside the house of the Barangay Captain. These police officers especially police officer Jolejole would often go to the house of the Barangay Captain. When these police officers arrived at his house and he was shown a copy of the search warrant, he allowed them to conduct a search provided that they make a proper search. He accompanied police officer Aquino in searching the area outside his house. After that, Aquino entered the house and he was designated to search the room. Rico’s wife accompanied Aquino in the room. Police officer Enriquez was at the sala while Lacson was in the kitchen and Jolejole was sitting on the dining table preparing inventory. The other police officers were outside the house. When nothing was recovered inside the house, the police officers went in and out of the house. Then there was one person who smelled liquor and appeared to be drunk entered the house. The man pushed the chair where Marsan was sitting, moved the backrest and thereafter announced that it is positive. He was the man who picked up the item which is a small sachet and gave it to officer Enriquez and the latter in turn handed the same to officer Jolejole. The man was not one of the police officers who initially searched the house The following morning, Rico came to know that the man was not a police officer but merely a police asset named Bary Delfin. He was surprised why there were eight sachets when there was only one sachet found by the man. When that Bary Delfin went inside the house and suddenly found something, he complained because what they did was foolishness.[15]
The Ruling of the Regional Trial Court
In a Judgment[16] dated April 4, 2013, the Regional Trial Court found the accused-appellant guilty beyond reasonable doubt of the crime penalized under Section 11, Article II of R.A. 9165. In the assailed decision, the trial court found the evidence presented by the prosecution to be sufficient to establish the elements of the crime charged. The trial court likewise found the chain of custody of the siezed illegal drugs to have remained unbroken. The decretal portion of the decision reads:
“WHEREFORE, in view of the foregoing, the Court finds accused, Rico Felicilda Tindungan, guilty beyond reasonable doubt of Violation of Section 11, Article II of RA 9165 and is sentenced to suffer the penalty of twelve (12) years and one (1) day to fifteen (15) years and a fine of P300,000.00.
The eight packets of shabu are forfeited in favor of the government.
SO ORDERED.
Cebu City, Philippines, April 4, 2013.”[17]
Aggrieved with the decision, the accused-appellant timely filed this appeal[18] and raised the lone assignment of error, to wit:
I
THE COURT A QUO ERRED IN ADMITTING THE SEIZED DRUG CONSIDERING THAT THE IMPLEMENTATION OF THE SEARCH WARRANT WAS TAINTED WITH IRREGULARITIES.[19]THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY DESPITE THE FAILURE OF THE PROSECUTION TO PROVE AN UNBROKEN CHAIN OF CUSTODY OF THE ALLEGED CONFISCATED ILLEGAL DRUGS.[20]
This Court’s Ruling
The petition lacks merit.
The essential elements of the crime of illegal possession of regulated drugs are the following: 1) the actual 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 or consciously possessed the said drug.[21]
[Illegal possession of regulated drugs] 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.[22] (Emphasis and underscoring supplied)
The finding of illicit drugs and paraphernalia in a house or building owned or occupied by a particular person raises the presumption of knowledge and possession thereof which, standing alone, is sufficient to convict.[23]
Herein accused-appellant failed to present any convincing evidence to rebut the presumption of knowledge and possession of the illegal substances found in his residence. As tenant of the house, he had full access to, full control of and dominion over the rooms.
Accused-appellant proffered no evidence as to his contention that the search conducted in his residence was tainted with irregularities for failure to comply with the provisions of Section 8, Rule 126 of the Rules of Court because he did not witness the simultaneous search conducted in his house as required by the Rules.
As provided in Section 8, Rule 126 of the Rules of Court,
SEC. 8. Search of house, room, or premises, to be made in presence of two witnesses– No search of a house, room, or any other premise shall be made except in the presence of the lawful occupant thereof or any member of his family or in the absence of the latter, two witnesses of sufficient age and discretion residing in the same locality.
Records reveal that the police officers were accompanied by barangay tanod Severino Cabellon and Lolito Casul during the search in the house of the accused-appellant. Moreover, the accused-appellant himself and some of his family members, were inside his house, particularly in the living room where the illegal drugs were found during the conduct of the search. In fact, appellant’s testimony is very telling:
xxx xxx xxx
PROS.LORETEQ: So, these police officers showed you the search warrant when they arrived? A: Yes, ma’am. Q: Now when you saw the search warrant, the subject there is your name and the residence was the place to be searched? A: Yes, ma’am. Q: And without objection, you let these officers implement the search warrant? A: Yes, ma’am. Q: Were there any other persons inside that house when the implementation of the search warrant was conducted, aside from you? A: My family, ma’am. Q: So, you are referring to your wife and how many children? A: Three (3) children and my sister, ma’am. Q: Is your house a two-storey house or just a bungalow type? A: Bungalow type, ma’am. Q: Have you noticed if there were any barangay tanods together with the arresting officers? A: There were, ma’am.[24] Also, PO3 Miguel Enriquez has these to affirm: Q: Was Rico Tindugan alone in the sala where he was sitting when you entered the house? A: There were other people inside, ma’am. Q: How many people inside, aside from the lady, who let you come inside the gate? A: Aside from his wife, ma’am, there were two other ladies, a houseboy then the kids. Q: How many kids? A: Two (2) kids, ma’am.[25]
Furthermore, PO3 Miguel Enriquez revealed that when he found the shabu in the living room, the accused-appellant himself was there in the same room, sitting in the sofa, viz:
Pros. Lorete Q: When you focused your attention now in the sala, what did you do next? A: I also conducted search in the sala then I found the subject of the search warrant, ma’am, the eight (8) plastic packs subject of the search warrant. Q: You said that you conducted search in the sala and you found the subject of the search, the eight (8) plastic packs, could you please expound to us what do you mean you found the subject of the search, the eight (8) plastic packs of shabu? A: After I searched the kitchen, ma’am, I searched the sala and the accused was also there sitting there I found the eight (8) plastic packs at the edge of the sofa. COURT: Q: Please be specific as to where the edge? A: At the back, Your Honor, in a corner that joints the backrest and the portion where one is seated.[26] xxx xxx xxx Q: Do you mean to say that these eight (8) packs of shabu that you have just described as found nearby are clearly seen? A: Yes, it can be seen, if we press down the foam of the sofa since I searched the entire sofa, ma’am. Q: And after you found the said eight (8) plastic packs of shabu, what happened next? A: I called the attention of SPO3 Sanrico Jolejole, ma’am. Q: By the way, what was the reaction of the accused when you recovered or found the said eight (8) plastic packs of shabu, as he was seated nearby? A: He did not say anything, ma’am. Q: So, after you called the attention of Jolejole, what happened next? A: After I called the attention of Jolejole, he approached me, ma’am, and then I turned over to him the eight (8) plastic packs of shabu that I recovered.[27] xxx xxx xxx Q: What happened next? A: SPO3 Sanrico Jolejole made a recording, ma’am. Q: Do you mean to say that a receipt of property seized was made by Jolejole, is that what you mean? A: Yes, ma’am.[28] COURT Q: Aside from the accused, who was around when the eight plastic packs of shabu were recovered, who else were around in the sala? A: His wife and there were two ladies at that time, Your Honor.[29]
As to appellant’s second contention that there was irregularity in the marking of the seized items for it was not done in the presence of the accused, the same does not persuade Us.
Jurisprudence tells us that the failure to mark the seized drugs in the presence of the person apprehended will not automatically impair the integrity of chain of custody. The failure to strictly comply with Section 21(1), Article II of RA 9165 does not necessarily render an accused’s arrest illegal of the items seized or confiscated from him inadmissible. What is of utmost important is the preservation of the integrity and the evidentiary value of the seized items, as these would be utilized in the determination of the guilt or innocence of the accused. [30]
SPO4 Sanrico Jolejole declares in his testimony that he was not alone during his recording of the said drugs, viz:
Q: Sir, who was with you at the dining room while you were situated there recording? A: Police officer Enriquez and the barangay tanod but I cannot recall the tanod who accompanied Enriquez during the search, sir, because when police officer Aquino searched the bedroom, there was also a barangay tanod who accompanied him.[31]
Moreover, the accused-appellant’s sister, Narolyn Tindugan, testified that she was present during the recording, thus:
Q: And of course as you have said when the police officer recorded this item, you have witnessed? A: Yes, ma’am.[32]
Furthermore, contrary to the accused-appellant’s statement that he was not present during the recording of the said confiscated drugs, his testimony declares otherwise:
Q: So, when did you see these eight (8) packs of shabu subject matter of this instant case? A: When the inventory was conducted by police officer Jolejole on the table because they wanted me to sign the inventory, Your Honor.[33]
In the last ditch effort to exonerate him of the crime, accused-appellant argues that the safeguards provided under paragraph 1, Section 21, Article II of R.A. 9165 were not complied with.[34] The same does not convince Us.
As we held in People v. Cortez, testimony about a perfect chain is not always the standard because it is almost always impossible to obtain an unbroken chain. Cognizant of this fact, the Implementing Rules and Regulations of RA 9165 on the handling and disposition of seized dangerous drugs provides as follows:[35]
Section 21(a) of the Implementing Rules and Regulations of R.A. 9165:
(a) The apprehending officer/team having initial custody and control of the 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/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 copies of the inventory and be given a copy thereof: Provided, that the physical inventory and photograph shall be conducted at the place where the search warrant is served; or at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable, in case of warrantless seizures; Provided, 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 seizures of and custody over said items; (Emphasis supplied).
The failure of the prosecution to show that the police officers conducted the required physical inventory and photographed the objects confiscated does not ipso facto result in the unlawful arrest of the accused or render inadmissible in evidence the item seized. This is due to the proviso added in the implementing rules stating that it must still be shown that there exists justifiable grounds and proof that the integrity and evidentiary value of the evidence have not been preserved.[36] Again, “What is crucial is that the integrity and evidentiary value of the seized items are preserved for they will be used in the determination of the guilt or innocence of the accused.”[37]
In this case, the chain of custody of the packets of shabu that were found in the house of the accused-appellant could be continuously traced from its receipt by P03 Miguel Enriquez, the founder of the said shabu during the search operation; its transfer to SPO4 Sanrico Jolejole who placed the markings “RTF-19-03-01” to “RTF-19-03-08” to the eight packs while still inside the accused-appellant’s residence, its transfer to PO3 Rene Barral for delivery to the PCP Crime Laboratory which was then received by PO3 Herminigildo Sudaria of the PNP Crime Laboratory and submitted it to P/CInsp. Mutchit Salinas for examination who found the same to contain methamphetamine hydrochloride, a dangerous drug it being kept in police custody while awaiting trial; and finally, its presentation as evidence before the RTC. When he testified before the RTC, SPO4 Sanrico Jolejole identified the sachet of shabu and confirmed his markings thereof.[38] (sic) P/CInsp. Mutchit Salinas was the forensic officer who conducted the chemical examination of the contents of the saches bearing SP04 Sanrico Jolejole markings and during the trial, it was stipulated that the said examination yielded positive result for the presence of methamphetamine hydrochloride.[39] Thus, the integrity and evidentiary value of the saches of shabu presented in evidence against accused-appellant were properly preserved in substantial compliance with Section 21(1) of Republic Act No.9165.
For as long as the chain of custody remains unbroken, as in this case, even though the procedural requirements provided for in Section 21 of R.A. No. 9165 were not faithfully observed, the guilt of the accused will not be affected.[40]
The integrity of the evidence is presumed to have been preserved unless there is a showing of bad faith, ill will, or proof that the evidence has been tampered with. Rico Tindugan bears the burden of showing that the evidence was tampered or meddled with in order to overcome the presumption of regularity in the handling of exhibits by public officers and the presumption that public officers properly discharged their duties.[41] Tindugan in this case failed to present any plausible reason to impute ill motive on the part of the arresting officers. Thus, the testimonies of the apprehending officers deserve full faith and credit.[42] In fact, Tindugan did not even question the credibility of the prosecution witnesses. He anchored his appeal on the irregularities in the implementation of the search warrant and on the alleged broken chain of the custody of the seized drugs.
On the basis of the aforesaid disquisition, we find no reason to modify or set aside the Decision of the RTC. Tindugan was correctly found to be guilty beyond reasonable doubt of violating Section 11, Article II of R.A. No. 9165. Since Tindugan’s guilt was proven beyond reasonable doubt, We are, thus, impelled to affirm his conviction.
WHEREFORE, the appeal is hereby DENIED. The Decision of the RTC, Branch 57, Cebu City, dated April 4, 2013 in Criminal Case No. CBU-79575 finding Rico Felicilda Tindugan guilty beyond reasonable doubt of violating Section 11, Article II of Republic Act (RA) 9165 is hereby AFFIRMED in toto.
SO ORDERED.
Hernando, Chairperson and Azcarraga-Jacob, JJ., concur.
[1] See Appellant’s Brief, rollo, pp. 10-43.
[2] Penned by Presiding Judge Enriqueta Loquillano-Belarmino, rollo, pp. 45-50.
[3] Section 11. Possession of Dangerous Drugs. – The penalty of life imprisonment to death and a fine ranging from Five hundred thousand pesos (P500,000.00) to Ten Million Pesos (P10,000,000.00) shall be imposed upon any person, who, unless authorized by law, shall possess any dangerous drug in the following quantities, regardless of the degree of purity thereof:
(1) 10 grams or more of opium;
xxx xxx xxx
[4] Records, p. 1.
[5] Id.
[6] See Certificate of Arraignment, records p.39.
[7] See the Brief for the Plaintiff-Appellee, Counterstatement of Facts, rollo, pp.64-66.
[8] See the Brief for the Plaintiff-Appellee, rollo pp. 65-77.
[9] Id., p, 65.
[10] Id.
[11] Id.
[12] Id., p. 65.
[13] Id., p. 66.
[14] See the Brief for the Accused-Appellant, rollo, pp. 10-43; Evidence for the Defense, rollo, pp. 17-18.
[15] Id., p. 18.
[16] Judgment, rollo, pp.45-50.
[17] See Decision, rollo, p.50.
[18] See Accused-appellant’s Brief, Rollo, pp. 10-43.
[19] Id., p. 12.
[20] Id.
[21] People of the Philippines,vs. Maribel Lagman and Zeng Wa Shui , G.R. No. 168695, December 8, 2008 citing People v. Tira, G.R. No. 139615, May 28, 2004, 430 SCRA 134.
[22] Id.
[23] Id citing People v. Torres, G.R. No. 170837, September 12, 2006.
[24] TSN of Rico Felicida Tindugan, October 2, 2012, p. 8.
[25] TSN of PO3 Miguel Enriquez, February 10, 2009, p. 12.
[26] Id., pp. 20-21.
[27] Id., pp. 22-23.
[28] Id., pp. 23-24.
[29] Id., p. 26.
[30] People of the Philippines vs. Giovanni Ocfemia y Chavez, G.R. No. 185383, September 25, 2013.
[31] TSN of SPO4 Sanrico Jolejole, May 31, 2010, p. 12-13.
[32] TSN of N. Tindugan, February 13, 2012, p. 13.
[33] TSN of Rico Tindugan, October 2, 2012, p. 10.
[34] Rollo, p. 26.
[35] G.R. No. 183819, July 23, 2009.
[36] People v. Salvador, G.R. No. 190621, February 10, 2014, citing People v. Rivera, G.R. No. 182347, October 17, 2008.
[37] People v. Salvador, G.R. No. 190621, February 10, 2014, citing People v. Manalao, G.R. No. 187496, February 6, 2013.
[38] TSN of SPO4 Jolejole, November 17, 2009, p. 13.
[39] TSN, July 21, 2008, p. 6.
[40] People v. Manlangit, G.R. No. 189806, 12 January 2011, 639 SCRA 455, 469-470 citing People v. Rosialda, G.R. No. 188330, 25 August 2010, 629 SCRA 507, 520-521 further citing People v. Rivera, G.R. No. 182347, 17 October 2008, 569 SCRA 879, 897-899.
[41] People v. Yable, G.R. No. 200358, April 7, 2014 citing People v. Miranda, 560 Phil. 795, 810 (2007).
[42] Id citing People v. Macabalang, 538 Phil. 136, 155 (2006).