PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. FERDINAND TUTOP Y MABASKOG, ACCUSED-APPELLANT.
INGLES, G. T., J.:
This is an appeal from the Decision[1] dated June 1, 2010 of the Regional Trial Court of Bacolod City, Branch 47, in Criminal case No. 03-25378, which found herein appellant Ferdinand Tutop y Mabaskog, guilty beyond reasonable doubt for violation of Section 5, Article II of Republic Act No. 9165 otherwise known as the Comprehensive Dangerous Drugs Act of 2002.
Factual and Procedural Antecedents
The accusatory part of the Information[2] with which appellant was charged reads as follows:
“That on or about the 18th day of September 2003, in the City of Bacolod, Philippines, and within the jurisdiction of this Honorable Court, the herein accused, not being authorized by law to sell, trade, dispense, deliver, give away to another, distribute, dispatch in transit or transport any dangerous drug, did, then and there willfully, unlawfully and feloniously sell, deliver and give away to a police poseur buyer, PO2 Ramil Ramos Dellomes in a buy-bust operation, four (4) elongated heat-sealed transparent plastic bag containing methylamphetamine hydrochloride or shabu, a dangerous drug, with a total weight of 0.59 gram in exchange of two (2) fake one thousand pesos bills in violation of the aforementioned law.
Act contrary to law.”
On his arraignment[3], appellant pleaded “NOT GUILTY” to the offense charged. Trial thereafter ensued.
Evidence for the Prosecution
PO3 Ramil Dellomes testified that he was assigned to the Philippine Drug Enforcement Agency (PDEA) as operative under Commanding Officer PI Joemarie Occeno in September 18, 2003. At 4:00 o’clock in the afternoon of said date, PDEA office through PI Occeno received a personal report from an asset that alias “Binand” was selling shabu in Purok Cereza South, Brgy 3, Bacolod City.
Occeno thus conducted a briefing attended by SPO1 Arnold Yunsay, PO2 Norman Guillergan, SPO1 Hernan Ecal, Dellomes and the asset for an entrapment operation against the subject and designated PO3 Dellomes to act as Poseur-buyer. SPO1 Yunsay and SPO1 Ecal were to act as security and PO2 Guillergan as back-up. Two (2) fake P1,000.00 bills bearing the same serial number (No. Q620313) (Exhibits “C” and “C-2”) were marked “C” (Exh. “C-1”) between the letters “n” and “g” (Exh. “C-2-A) in the words Sanlibong Piso in both bills. The marked money and the marking were recorded in the blotter of Police Station 2 at 5:45 PM of September 18, 2003[4].
At 6:15 PM, PO3 Dellomes and the asset, who was to identify alias “Binand”, rode a ‘trisikad’ in going to the area of operation – Purok Cereza South – and waited for the suspect who was set by the asset to meet them there. The rest of the team took a L-300 van. A couple of minutes later, “Binand” (later known as accused Ferdinand Tutop y Mabaskog) arrived by foot and was introduced by the asset to PO3 Dellomes, who was not in uniform as buyer of shabu. Dellomes then gave the two marked P1,000.00 bills to “Binand” who in turn handed four (4) elongated sachets of suspected shabu to Dellomes. The police officer then made a pre-arranged signal – right thumb up – to indicate the consummation of the sale and identified himself as a PDEA operative. Guillergan, Ecal and Yunsay came, followed by PI Occeno, and helped in the arrest of accused who was then informed of his constitutional rights to remain silent and to counsel, and of his violation, i.e., sale of shabu. The marked money was recovered from accused and the four (4) sold elongated plastic sachets of suspected shabu were marked individually by Insp. Occeno as “FT-1”, “FT-2”, “FT-3”, and “FT-4”, respectively (FT stands for Ferdinand Tutop), right after the arrest of the accused and in his presence.[5]
The buy-bust operation was recorded in the police blotter[6]. Inspector Occeno, who was in custody of the recovered items, prepared the letter-request for laboratory test[7] the following morning, September 19 and personally delivered it, together with the specimens, to the PNP crime laboratory at “0925 H 19 Sept 03”[8].
P/SI Agustina Laranang Opoy, forensic chemical officer of PNP Regional Crime Laboratory 6, testified that she received a letter-request dated September 19, 2003[9] signed by P/I Joemarie Occeno[10] for laboratory examination of four elongated plastic sachets of suspected shabu with corresponding markings “FT-1”, “FT-2”, “FT-3”, and “FT-4”, allegedly recovered from suspect Ferdinand M. Tutop at Purok Cereza South, Brgy. 3, Bacolod City at 7:30 PM of September 18, 2003. The letter-request with actual specimens was personally delivered by PI Occeno and received by the Crime Laboratory at “0925H 19 Sept 03 by POI Magbanua”. The actual four (4) elongated heat-sealed transparent plastic bag contained white crystalline substance with the following recorded weights and descriptions: FT1-0.15 gram; FT2-0.14 gram; FT3-0.14 gram; and FT4-0.16 gram, with total weight of 0.59 gram. After conducting qualitative examination on these specimens, the forensic chemical officer filed Chemistry Report No. D-534-2003[11] finding and concluding that said specimens gave positive results to the test for and contained methamphetamine hydrochloride (shabu), a dangerous drug[12].
Evidence for the Defense
Testifying in his defense, accused-appellant Ferdinand Tutop declared that he was going to his parked trisikad at the foot-walk of Purok Cereza South, Brgy. 3, Bacolod City at 7:15 PM of September 18, 2003 when he met two persons, one being known to him as Jimmy, a resident of Purok Kamuncil of the same barangay. He saw them earlier standing at the back of Andres Bonifacio Elementary School (ABES) while plying his trisikad. Ferdinand knew Jimmy to be a thief, and was reportedly an asset of the police; he had a quarrel with Jimmy two years before. Jimmy pointed a finger to Ferdinand saying to his companions “arrest him”, and the companions drew near and handcuffed Ferdinand. Then they proceeded to the provincial Lagoon where they boarded a white car and brought Ferdinand to an office in Kamingawan and investigated him. Thereafter, Ferdinand was brought to Police Station 2; he was not shown the four plastic sachets and the two fake P1,000.00 bills they claimed to have recovered from him. He was asked to point to the persons selling shabu but he did not know any. Ferdinand denied having sold 4 sachets of shabu in exchange for 2 fake P1,000.00 bills to a poseur buyer.
Witness Joemarie Laspag, a bet-crier in cockfights, claimed that, at 7:00 PM of September 18, 2003 he was at Purok Ceresa South, Brgy. 3 to meet a friend “Boboy”, but the latter’s wife told him that her husband was at a store beside the road. Proceeding to the store and while drinking softdrink, witness Lapag saw a young man buy something from the store. Suddenly, a person approached the young fellow, searched him bodily, telling him not to move as he was a police officer. Nothing was recovered, but the young man was brought to Gatuslao street. Witness Alapag claims that he did not know the young man, but the latter’s mother came to his house on December 4, 2003 and begged him to testify for the defense as there was no other witness at the time of accused Tutop’s arrest.
RTC Ruling
After evaluation of the evidence, the trial court rendered a Decision finding appellant guilty of the offense charged, the dispositive portion of which, reads:
“WHEREFORE, finding accused Ferdinand Tutop y Mabaskog guilty beyond reasonable doubt of Violation of Section 5, Article II of R.A. 9165 (Sale, Delivery, etc. of Dangerous Drugs) as herein charged, judgment is hereby rendered sentencing him to suffer Life Imprisonment and to pay a fine of P500,000.00. He is also to bear the accessory penalty prescribed by law. Costs against accused.
The subject four (4) sachets of shabu (Exh. “B-3-A”: – ”FT-1” – 0.15 gram, ”FT-2” – 0.14 gram; ”FT-3” – 0.14 gram; and ”FT-4” – 0.16 gram) all being dangerous drugs are hereby ordered confiscated and/or forfeited in favor of the government and to be forthwith delivered or turned over to the Philippine Drug Enforcement Agency (PDEA) provincial office for immediate destruction or disposition in accordance with law.
The immediate commitment of accused to the national penitentiary is also hereby further ordered.
SO ORDERED.”[13]
Assignment of Error
Undaunted and still maintaining his innocence, appellant interposed the present appeal where he raised the following error on the part of the trial court:
“The trial court gravely erred on convicting the accused-appellant of the crime charged despite the fact that his guilt was not proven beyond reasonable doubt.”[14]
Ruling of this Court
The Court finds for the appellant.
In all prosecutions for violation of the Dangerous Drugs Act, the existence of all dangerous drugs is a condition sine qua non for conviction. The dangerous drug is the very corpus delicti of the crime of violation of R.A. 9165. It is therefore crucial that the prohibited drug confiscated or recovered from the suspect is the very same substance offered in court as exhibit. The “chain of custody” requirement performs this function in that it ensures that unnecessary doubts concerning the identity of the evidence are removed.[15] The procedure to be followed in the custody and handling of seized dangerous drugs is outlined in Section 21, paragraph 1, Article II of Republic Act No. 9165 which stipulates:
(1) The apprehending 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.
The same is implemented by Section 21(a), Article II of the Implementing Rules and Regulations of Republic Act No. 9165, viz.:
(a) The apprehending 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, 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.
From the foregoing provision, it is clear that non-compliance with the procedural requirements of R.A. 9165 is excusable only if the integrity and the evidentiary value of the seized items are properly preserved.
The Supreme Court recognized the following links that must be established in the chain of custody in a buy-bust situation: 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, fourth, the turnover and submission of the marked illegal drug seized from the forensic chemist to the court.[16]
In this case, there are procedural and testimonial lapses in the handling and identification of the seized item which collectively raise doubts as to whether the item submitted for laboratory examination and presented in court was the same item that was confiscated from accused-appellant when he was apprehended.
The testimonies of the arresting officers are bereft of anything to show that the statutory requirements regarding the proper handling and custody of the seized items were followed. It was never mentioned who was the one in custody of the seized items from the place of the confiscation up to the police station. No inventory was made, and no photographs were taken of the subject specimens. In the same vein, no representative from the media and the Department of Justice (DOJ), and any elected public official were present. Also, there was no testimony offered on how the illegal drug came into the custody of Insp. Occeno from the apprehending officer PO3 Dellomes. Moreover, there was no testimony at all on how the seized items were stored and preserved before its receipt by the forensic chemist in the laboratory examination. The records reveal that the police officer who took custody of the seized items, PI Occeno, was not presented as witness although his testimony would have been crucial to establish an unbroken chain of custody, particularly, from the time the seized drugs were confiscated from the accused-appellant in the evening of September 18, 2003 up to the time the items were turned over to the PNP Crime Laboratory the next day on September 19, 2003.[17] Although the non-presentation of some of the witnesses who can attest to an unbroken chain of custody of evidence may, in some instances be excused, there should be a justifying factor for the prosecution to dispense with their testimonies.[18] In this case, PI Occeno could have given testimony as to his crucial role in the handling of the seized drugs, but there is no explanation on record as to why he was not presented to testify for the prosecution. While it is true that the last paragraph of Section 21(a), Article II of the Implementing Rules and Regulations of Republic Act No. 9165 provides an exception to the general rule that non-compliance with the rule in chain of custody will render void and invalid the seized items, the exception, to be applicable must have some justifiable ground which must be proven as fact. The court cannot presume what these grounds are. The prosecution must prove that 1) such non-compliance is attended by justifiable grounds; and 2) the integrity and evidentiary value of the seized items are properly preserved by the apprehending team.[19] In this case, the prosecution did not even attempt to justify the departure from the proper procedure laid down in Section 21, paragraph 1, Article II of Republic Act No. 9165 and Section 21(a), Article II of the Implementing Rules and Regulations.[20]
Given the procedural lapses pointed out above, serious uncertainty hangs over the identification of the seized drugs that the prosecution introduced into evidence. In effect, the prosecution failed to fully prove the elements of the crime charged, creating a reasonable doubt on the criminal liability of the accused.[21]
WHEREFORE, this appeal is hereby GRANTED. The decision dated June 1, 2010 rendered in Crim. Case No. 03-25378 by Branch 47 of the Regional Trial Court in Bacolod City is hereby REVERSED and SET ASIDE. Accused-appellant Ferdinand Tutop y Mabaskog is hereby ACQUITTED.
Let a copy of this decision be furnished to the Warden of the New Bilibid Prison in Muntinlupa City, who is DIRECTED to immediately RELEASE accused-appellant Ferdinand Tutop y Mabaskog from custody unless he is being lawfully held for some other cause, and to inform this court of action taken thereon within ten (10) days from notice hereof.
SO ORDERED.
Maxino, P.A.A., and Francisco, R.C., JJ., concur.
[1] Original record, pp. 218-227. Decision penned by Hon. Edgar G. Garvilles.
[2] Original record, pp. 1-2.
[3] Original record, page 16.
[4] Exh. “D”, original record, page 216.
[5] See TSN, September 9, 2009, pp. 1-17.
[6] Exh. “E”, original record, page 217.
[7] Exh. “A”, original record, page 214.
[8] Exh. “A-4”, original record, page 214.
[9] Exh. “A”, original record, page 214.
[10] Exh. “A-3”, original record, page 214.
[11] Exh. “B”, original record, page 215.
[12] Exh. “B-4”, original record, page 215.
[13] Original record, pp. 226-227.
[14] Rollo, page 75.
[15] People vs. Coreche, G.R. No. 182528, August 14, 2009.
[16] People vs. Garcia, G.R. No. 173480, February 25, 2009; People vs. Gum-Oyen, G.R. No. 182231, April 16, 2009; People vs. Denoman, G.R. No. 171732, August 14, 2009; People vs. Coreche, G.R. No. 182528, August 14, 2009.
[17] See TSN, September 9, 2009, pp. 1-17.
[18] People vs. Norman Sitco &Raymundo Bagtas, G.R. No. 178202, May 14, 2010.
[19] People vs. De Guzman, G.R. No. 186498, March 25, 2010.
[20] See TSN, September 9, 2009, pp. 1-17.
[21] People vs. Garcia, G.R. No. 173480, February 25, 2009.