PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. TALIB ADEL ONTONG, ACCUSED-APPELLANT.
INTING, J.:
“WHEREFORE, the foregoing considered, the prosecution having established all the elements of the crime of illegal delivery of a dangerous drug, the Court hereby finds the accused, Talib Adel Ontong GUILTY beyond reasonable doubt of the crime of Violation of Sec. 5, Par. 1, Article II of R.A. 9165. He is hereby sentenced to suffer the penalty of LIFE IMPRISONMENT and to pay a fine of P500,000.00. The sachet of shabu described in the Information is ordered confiscated in favor of the government to be disposed of in accordance with law and regulations. No pronouncement as to costs.
SO ORDERED.”
The conviction of accused Talib Ontong’ stemmed from an Information dated May 13, 2003[2] which reads:
“That on May 10, 2003 at about 4:30 in the afternoon, at V. Castro St., Carmen, Cagayan de Oro City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused without being authorized by law, did then and there willfully, unlawfully and feloniously offer to sell for Php 200.00, deliver, distribute and give away one (1) heat sealed transparent cellophane (of methamphetamine hydrochloride) containing 0.03 grams of white crystalline substance locally known as ‘shabu’ to the plainclothesmen PO1 Oscar B. Sierra, Jr. and PO2 Joseph E. Jabiniao, who, when accused showed them the substance drawn from his pocket, arrested him for transacting a dangerous drug.”
Accused, assisted by counsel, was arraigned on October 30, 2003; he pleaded not guilty to the offense charged.[3] He is presently detained at the Davao Prison and Penal Farm, Panabo, Davao del Norte.[4]
The facts of the case are as follows:
On May 10, 2003 at about 4:30 p.m., PO2 Oscar Sienna and PO2 Joseph Jabiniao conducted a surveillance at V. Castro St., Carmen, Cagayan de Oro City following a report they received the previous day from their civilian informant on the rampant selling of prohibited drugs in the area. The informant had been texting PO2 Sienna about a certain Talib, who was supposedly doing the illegal selling.
The informant was already stationed at the surveillance area and gave the authorities a description of Talib including the shirt he was wearing.[5] On the other hand, PO2 Sierra and Jabiniao, both in civilian clothes and on board a motorela,[6] alighted at V. Castro and strolled for a while observing the area. Later on, a man whom they identified as Talib Ontong (herein accused) approached them and offered PO2 Jabiniao a sachet of shabu for P200.00. PO2 Sierra was then about a meter and a half away from the accused and PO2 Jabiniao. PO2 Jabiniao signified interest in Talib’s offer and asked the latter where he could get the shabu. Talib took a sachet from his pocket and handed it to PO2 Jabiniao. Thereafter PO2 Jabiniao, assisted by PO2 Sierra, apprehended Talib, informed him of his rights, and brought him to the police station. The seized item remained in PO2 Jabiniao’s possession. Upon reaching the station, he placed the sachet in a cellophane which he marked “A” for identification purposes.
On May 12, 2003, PO2 Jabiniao personally brought the confiscated item to the crime laboratory for examination and was received by PO3 Tabligan. The test was conducted by Forensic Chemical Officer Aileen Bernido (his testimony was stipulated upon by the parties thus dispensing her oral testimony in open court). The forensic chemist confirmed the specimen to be methamphetamine hydrochloride, a prohibited substance. Hence, the authorities filed the above-quoted Information against Talib.
During the trial, PO2 Sierra maintained that he witnessed PO2 Jabiniao pay the accused P200.00 just before they made the arrest and recalled that the money was turned over to them only at the police station when they asked the accused where the money was. The buy-bust money was personally handed to them by Talib before it was turned over to the precinct commander. PO2 Sierra added that PO2 Jabiniao marked the cellophane only at the police station. On his cross-examination, PO2 Sierra confirmed that even before the scheduled surveillance on May 10, 2003, they have already received reports regarding the selling of prohibited drugs by one Talib. [7]
Contrary to PO2 Sierra’s claims, PO2 Jabiniao insisted that he was not able to pay the buy-bust money as he opted to identify himself as a police officer and arrest Talib instead of handing the money.[8] He confirmed that the marking on the cellophane was only made at the station but he positively identified the item presented in court as the same item he seized from Talib. Moreover, he admitted that when they went to the surveillance area, they already knew who they were looking for based on the informant’s tips but he denied that it was they who approached Talib. He further averred that it was mere coincidence that Talib chose to offer to sell the illegal drugs to him.[9]
On the other hand, Talib raises the defense of denial. He recalled that he was not arrested on May 10, 2003 but rather on May 5; that he did not have, much more sell any shabu to the police officers; and that all he had was 75 centavos and not P200.00. He attested that on May 5, 2003, he had been driving his father’s tri-sikad since 5:30 a.m. but had to stop at about 10:00 a.m. because the tri-sikad’s bearing broke. At about 11:00 a.m., while fixing the tri-sikad, he noticed a taxi stop behind him from which two (2) men, whom he usually sees in the Carmen area and whom he later learned to be PO2 Sierra and PO2 Jabiniao, alighted and pointed their guns at him telling him not to run. He was then pushed inside the taxi where he was handcuffed and brought to Maharlika detention center. This was witnessed by his sister Norica Ontong. Outside Maharlika, he was searched by PO2 Sierra who dropped a sachet in front of him. That was the first time he saw the shabu and he denied that that was his. He also denied having P200.00 in his pocket as he only had 75 cents during that time. Thereafter he was detained in Maharlika for 11 days before he was brought to the prosecutor’s office and then to Lumbia jail. On his cross-examination, he admitted not knowing any grudge between him and the police officers.[10]
The RTC rendered the assailed Judgment holding that the accused was caught in flagrante delicto when he handed the sachet of shabu to PO2 Jabiniao; that it was not material whether the P200.00 was actually paid to the accused since violation of Section 5, Article II of RA 9165 includes the delivery or the passing of the prohibited drugs to another with or without consideration; that no ill-motive could be attributed to the police officer thus, the presumption of regularity in the performance of their duty should prevail against the accused’s self-serving denial; that the chain of custody was adequately established as the person who received the item and placed the marking thereon was presented and the corpus delicti was properly identified by the prosecution witnesses; that the integrity and evidentiary value of seized drug was preserved; and that lastly, there was no evidence of tampering or meddling with the evidence.
Unyielding, accused appeals to Us imputing that the RTC erred in convicting him notwithstanding the failure of the prosecution to prove his guilt beyond reasonable doubt.
The accused-appellant asseverates that there was no selling of illegal drugs but rather only an illegal, warrantless search and arrest; and that the authorities failed to follow the requirements set forth in Section 21 of RA 9165 without justifiable grounds. He contends that there was no coordination with the PDEA on the alleged buy-bust; that the seized item was not immediately marked upon confiscation; that there was no inventory or photo taking of the items; and that there was no representative from the DOJ or any public official.
Our Ruling
The appeal is imbued with merit.
Basically, the accused-appellant assails the authorities’ failure to follow the mandate provided for under Section 21, Article II of RA 9165 pertinent portion of which provides:
Section 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. — The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner:
Indeed, the integrity and evidentiary value of the corpus delicti was never assailed by the accused–appellant before the RTC. He did not question the propriety of the police authorities’ taking and safekeeping of the seized item nor did he try to destroy the chain of custody to show that the illegal drug presented before the court was not what the proponents claim it to be. Apparently, the accused-appellant did not concern himself on the alleged non-compliance with the procedures set forth in the afore-quoted provision despite the opportunity accorded to him to question the purported lapses until on appeal before this Court where such issue was raised for the first time.
Analogously, in People v. Robelo,[11] the Supreme Court noted therein that the alleged non-compliance with Section 21, Article II of RA 9165 was not raised before the trial court but only for the first time on appeal. The High Court held that that cannot be done. Citing a plethora of cases, the Supreme Court quoted:
x x x Indeed the police officers’ alleged violations of Sections 21 and 86 of Republic Act No. 9165 were not raised before the trial court but were instead raised for the first time on appeal. In no instance did appellant least intimate at the trial court that there were lapses in the safekeeping of seized items that affected their integrity and evidentiary value. Objection to evidence cannot be raised for the first time on appeal; when a party desires the court to reject the evidence offered, he must so state in the form of objection. Without such objection, he cannot raise the question for the first time on appeal.”
Such ruling was reiterated in People v. Bis,[12] where the Supreme Court found apt the CA observation that the appellant therein failed to seasonably question the procedural gaps before the trial court and so any objection to the evidence was not allowed to be raised for the first time on appeal.
However, in the case of People v. Castillo,[13] the Supreme Court chose to pass upon the question of the alleged violations of Section 21 of RA 9165 despite the fact that it was not raised while the case was being heard before the trial court. We quote the Supreme Court:
“Indeed[,] the police officers’ alleged violations of Sections 21 and 86 of Republic Act No. 9165 were not raised before the trial court but were instead raised for the first time on appeal. In no instance did appellant least intimate at the trial court that there were lapses in the safekeeping of seized items that affected their integrity and evidentiary value. Objection to evidence cannot be raised for the first time on appeal; when a party desires the court to reject the evidence offered, he must so state in the form of objection. Without such objection, he cannot raise the question for the first time on appeal.
Nevertheless, we will still pass upon this question considering the gravity of its consequences on the liberty of appellant. We take this opportunity to reiterate jurisprudence which states that non-compliance with Section 21 does not necessarily render the arrest illegal or the items seized inadmissible because what is essential is that the integrity and evidentiary value of the seized items are preserved which would be utilized in the determination of the guilt or innocence of the accused.”
In the instant case, it cannot be denied that the procedural requirements were not totally complied with by the police authorities and such issue was not tackled before the RTC. Nonetheless, in the same vein as the Castillo case, We opt to address the issue to determine whether the integrity and evidentiary value of the seized item was really preserved despite the lapses since the determination thereof would significantly influence the resolution for or against the accused-appellant whose liberty is at stake.
It is settled that the failure to strictly follow the directives of this section is not fatal and will not necessarily render the items confiscated from an accused inadmissible. 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.[14] Thus, the failure of the apprehending team to inventory and photograph the confiscated items immediately after the operation, is not fatal to the prosecution’s cause[15] contrary to what the accused-appellant would want to impress on this Court provided the integrity and evidentiary value of the confiscated drugs have been preserved. Further, in People v. Salvador,[16] the Supreme Court held that coordination with PDEA, while perhaps ideal, is not an indispensable element of a proper buy-bust operation; it is not invalidated by mere non-coordination with the PDEA. Likewise, the appropriation of the prohibited drugs cannot also be voided on the mere ground that no DOJ representative or any elective official was present during the taking. In People v. Consulta,[17] the Supreme Court declared:
“We recognize that the strict compliance with the requirements of Section 21 of R.A. No. 9165 may not always be possible under field conditions; the police operates under varied conditions, many of them far from ideal, and cannot at all times attend to all the niceties of the procedures in the handling of confiscated evidence. The participation of a representative from the DOJ, the media or an elected official alone can be problematic. For this reason, the last sentence of the implementing rules provides 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.”
Consequently, the omissions in the procedures will not automatically make the seized item inadmissible but this is premised on the condition that the integrity and evidentiary value of the corpus delicti is preserved.
The integrity and evidentiary value of seized items are properly preserved for as long as the chain of custody of the same are duly established.[18] Chain of Custody means 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.[19]
In People v. Salvador,[20] the Supreme Court itemized the links that must be established in the chain of custody in a buy-bust situation, namely: 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 above-cited links were not established in the present case.
Marking, which is the affixing on the dangerous drugs or related items by the apprehending officer or the poseur-buyer of his initials or signature or other identifying signs, should be made in the presence of the apprehended violator immediately upon arrest.[21] In the present case, the marking was not done immediately at the crime scene upon the accused-appellant’s capture. Nevertheless, jurisprudence settles that marking upon immediate confiscation has been interpreted as to even include marking at the nearest police station or the office of the apprehending team.[22] Hence, although the marking was not at the scene of the buy-bust, it cannot be denied that a mark was made at the police station by the apprehending officer to whom the accused-appellant handed the illegal substance. This is acceptable compliance with what the law considers as immediate marking. However, it bears emphasis that the marking need not only be immediate but likewise, it should be done in the presence of the perpetrator or his representatives. Records are bereft of any proof that PO2 Jabiniao made the markings on the seized item in the presence of herein accused-appellant or any of his representatives. In Lopez v. People,[23] the Supreme Court declared:
“There are occasions when the chain of custody rule is relaxed such as when the marking of the seized items immediately after seizure and confiscation is allowed to be undertaken at the police station rather than at the place of arrest for as long as it is done in the presence of an accused in illegal drugs cases.” (underscoring ours)
Correspondingly, since there was no convincing evidence showing that the marking was made in the presence of the accused-appellant, albeit done immediately We cannot hold that there was appropriate marking as contemplated by law.
Granting that the marking was proper, it is beyond doubt that the safekeeping and custody of the seized item was not satisfactorily established by the prosecution.
The chain of custody rule comes into play as a mode of authenticating the seized illegal drug as evidence.[24] It includes 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.[25] 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.[26] Indeed, 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.[27]
In the case at bench, PO2 Jabiniao failed to expound on how he ensured the safeguarding of the seized item considering that he was in custody thereof for more than 24 hours. He did not disclose where the item was placed while it was awaiting delivery to the laboratory which took place more than a day from the time of the buy-bust. The precautions he took to avoid change in the condition of the corpus delicti were not established nor was there an assurance that negated any opportunity for substitution. Further, PO3 Tabligan, the officer who purportedly collected the seized item in the crime laboratory, was not presented to show that he indeed received the specimen from PO2 Jabiniao and that it had the markings indicating it was the same item seized from the accused-appellant. He never took the stand to show in what condition the item was when he received it and the precautions he took before he turned it over for examination. Furthermore, after the forensic chemist marked the examined specimen, no detail was given as to whom or where it was entrusted before its presentation in the court. In Valencia v. People,[28] the Supreme Court reiterates the demanded record of movements and custody of seized items to include the identities and signatures of the persons who held temporary custody of the seized item, the dates and time in the course of safekeeping until final disposition. The Supreme Court adds:
“The third link in the chain should detail who brought the seized shabu to the crime laboratory, who received the shabu at the crime laboratory and, who exercised custody and possession of the shabu after it was examined and before it was presented in court.” (emphasis ours)
In the instant case, there was no showing of the above-cited pivotal points. Apparently, there are evident obscure lapses in the chain of custody. In the case of People v. Denoman,[29] the Supreme Court held for the accused therein finding glaring gaps in the chain of custody which included among others the absence of details showing that the board regulation was ever complied with and that the records also do not indicate how the specimen was handled after the laboratory examination and the identity of the person who had the custody of the shabu before its presentation in court.
Taking into account the foregoing transgressions, We cannot sustain the presumption of the regularity of the performance of herein apprehending officers. The presumption of regularity only arises in the absence of contradicting details that would raise doubts on the regularity in the performance of official duties. Where the police officers failed to comply with the standard procedure prescribed by law, there is no occasion to apply the presumption.[30]
When prosecuting the sale or possession of dangerous drugs like shabu, the State must prove not only the elements of each of the offenses. It must prove as well the corpus delicti, failing in which the State will be unable to discharge its basic duty of proving the guilt of the accused beyond reasonable doubt.[31] The prosecution is duty-bound to establish with unwavering exactitude that the dangerous drug presented in court as evidence against the accused is the same prohibited substance seized from him.[32] In the present case, the prosecution fell-short in discharging their burden of proof. The crucial custodial link was not established with certainty tainting the preservation and integrity of the corpus delicti.
WHEREFORE, the April 13, 2012 Judgment of the Regional Trial Court Branch 40, Cagayan de Oro City in Criminal Case No. 2003-399 is hereby REVERSED and SET ASIDE. The accused-appellant Talib Adel Ontong is hereby ACQUITTED for failure of the prosecution to prove his guilt beyond reasonable doubt. His immediate release from confinement is ordered unless his further detention is warranted by some other lawful causes.
The Director of Prisons, Davao Prisons and Penal Farm, Panabo, Davao del Norte, is ordered to implement this Decision and to report to this Court his action hereon within five (5) days from receipt hereof.
Let entry of judgment be immediately made pursuant to Section 1 Rule VII of the 2009 Internal Rules of the Court of Appeals.
SO ORDERED.
Borja, [*] (Acting Chairperson), and Perez, JJ., concur.
[*] Designated Member vice J. Camello, per Raffle dated June 18, 2014
[1] Rollo, pp. 37-47.
[2] Records, p. 1.
[3] Records, p. 14.
[4] Rollo, p. 2 / Records,p. 102.
[5] TSN, October 18, 2010, p. 14
[6] Ibid, p. 5.
[7] TSN, October 30, 2009, pp. 5 -6, 9 and 11.
[8] TSN, October 18, 2010, p. 7.
[9] Ibid, pp. 14-15.
[10] TSN, February 7, 2011, pp. 4-9, 11-15.
[11] G.R. No. 184181, November 26, 2012.
[12] G.R. No. 191360, March 10, 2014.
[13] G.R. No. 190180, November 27, 2013.
[14] Marquez v. People, G.R. No. 197207, March 13, 2013.
[15] People v. Hong Yeng and Tsien Chua, G.R. No. 181826, January 9, 2013.
[16] G.R. No. 190621, February 10, 2014.
[17] G.R. No. 191071, August 28, 2013.
[18] People v. Constantino, Jr., G.R. No. 199689, March 12, 2014.
[19] Section 1(b) of Dangerous Drugs Board Regulation No. 1, series of 2002.
[20] G.R. No. 190621, February 10, 2014.
[21] Valencia v. People, G.R. No. 198804, January 22, 2014.
[22] People v. Somoza, G.R. No. 197250, July 17, 2013.
[23] G.R. No. 188653, January 29, 2014.
[24] Supra.
[25] Supra.
[26] Supra.
[27] Supra.
[28] G.R. No. 198804, January 22, 2014.
[29] G.R. No. 171732, August 14, 2009.
[30] Supra.
[31] People v. Bautista, G.R. No. 198113, December 11, 2013.
[32] People v. Bis, G.R. No. 191360, March 10, 2014.