Jehar, charged with and convicted of illegal sale of shabu under Section 5, RA 9165, assails his conviction before the Supreme Court, contending that the illegal sale of shabu had not been established beyond reasonable doubt; that the buy-bust operation had not been carried out in accordance with law; that the presumption of regularity in the performance of official duty did not apply because the law enforcers had deviated from the standard conduct of official duty as provided for in the law; that the arresting police officers had failed to make an inventory report of the confiscated items; that the markings on the confiscated items were not clearly established; that the procedural lapses of the police officers created doubt as to the identity of the confiscated items; and that, consequently, the Prosecution did not establish the elements of the crime charged.
The facts showed that he was arrested on or about 2:00 PM of November 27, 2002 by a team of policemen led by the poseur-buyer, PO2 Villahermosa, the back-up police officer, POI Miro, allegedly conducted a buy-bust operation from Jear by posing as drug addicts and buying from him P1,000.00 worth of shabu. The lower courts ruled him liable as charged for selling three sachets of shabu with markings “JR-b”, “JR-1” and “JR-2”.
Whether or not the police officers followed strictly the chain of custody in illegal drugs cases.
This appeal opens the entire record to enable the Court to determine whether or not the findings against the accused should be upheld or struck down in his favor.
After careful examination and review of the record, we find merit in the appeal, and, accordingly, acquit the accused on the ground that the Prosecution did not establish his guilt beyond reasonable doubt.
The State erred in charging the accused
with illegal sale of 1.44 grams of shabu
In order to charge a person with and convict him for the illegal sale of dangerous drugs under Section 5 of R.A. No. 9165, the State must allege and establish the concurrence of the following essential elements, namely: ( 1) the identity of the buyer and the seller, the object of the sale and the consideration; and (2) the delivery of the thing sold and its payment. The delivery of the illicit drugs to the poseur-buyer and the receipt by the seller of the marked money consummate the illegal sale of dangerous drugs during the buy-bust transaction.
Were the elements of the offense charged competently and clearly established by the Prosecution?
On direct examination, P02 Villahermosa, who was the poseur buyer during the buy-bust operation, testified as follows:
|Q||When you arrived at Sitio Cayam, where was your target Jehar Reyes?|
|A||They were in the house sir.|
|Q||Was he inside or outside his house?|
|A||He was sitting inside and came out when he saw us.|
|x x x x|
|Q||You said that Jehar Reyes, when he saw you came out, after that what happened?|
|A||Immediately I asked Jehar Reyes if we can buy shabu in the amount of P1,000.00.|
|Q||What was the answer of Jehar Reyes?|
|A||He nodded, meaning yes.|
|Q||After Jehar Reyes nodded, indicating that he was amenable, what did he do next?|
|A||He took one pack of shabu from his packet (sic) worth P1,000.00|
|Q||How about you, what did you do with the money in your possession?|
|A||I received the pack of shabu and in return I give (sic) to him the P1,000.00.|
|Q||You mean to say that the one pack of shabu was first given to you before you give (sic) the P1 ,000.00?|
|Q||What else happened?|
|A||Police Officer Miro who was standing beside me executed the pre-arranged signal.|
|Q||What was that signal about?|
|A||He removed his bull cap after the transaction.|
|Q||After that what happened next?|
|A||Immediately my companions rushed up to the buy bust area.|
|Q||What did your companions do?|
|A||They came to assist me in the arrest of the accused.|
|x x x x|
|Q||When the other members of the team rushed up Lo your position, what did you do to Jehar Reyes?|
|A||When I held him, I informed him of his violation.|
|Q||What did you inform him?|
|A||I informed him that he has committed, he has violated Section 5, Article II of RA 9165.|
|Q||What was the answer of Jehar Reyes?|
|A||There was no reaction sir.|
|Q||After that since you held Jehar Reyes, what did you do?|
|A||Immediately I frisked him.|
|Q||When you frisked him, what happened?|
|A||I was able to recover One thousand Pesos which was the buy bust money I give (sic) to him and another 2 packets of shabu in his other pocket.|
PO1 Villahermosa further testified:
|Q||Upon handing to the accused this money worth one thousand pesos, what did the accused do after receiving the said amount?|
|A||She (sic) got one pack of shabu from her (sic) pocket.|
|Q||If shown to you this one pack of shabu, will you be able to identify it before this Honorable Court?|
|Q||I’m showing to you three (3) heat-sealed transparent plastic packets of white crystalline substance, is this the specimen that you were able to recover and buy from the accused?|
|A||(Witness is pointing to a pack marked .28 gram with letters JR-B which was the one given to me by the accused.)|
|Q||What (sic) you mean by being the one given to me by the accused?|
|A||In exchange of one thousand pesos.|
|Q||I have here another two (2) packets marked JR-1 and another JR-2.
Will you be able to identify these two packets of shabu?
|Q||What are these two specimens?|
|A||These were the items confiscated from the accused after his arrest.|
In this regard, the CA, affirming the findings of the RTC, observed:
x x x Accused-appellant took one plastic pack from his pocket, and gave it to P[O]2 Villahermosa. P[O]2 Villahermosa in turn, handed the ten pieces of P100.00 bills to accused-appellant. Upon receipt of the P1,000.00 buy-bust money, P[O]2 Villahermosa immediately accosted accused-appellant. P[O]1 Mira removed his cap, the pre-arranged signal to the backup team, that the transaction had been completed. PO2 Villahermosa informed the accused-appellant he was under arrest, and informed him of his constitutional rights. He frisked accused-appellant, and recovered the following: two more plastic packs that contained a white crystalline substance; and the buy-bust money of ten P100.00 bills. (Bold emphasis supplied.)
The lower courts came up with common findings to the effect that three plastic packs of shabu weighing a total of 1.44 grams had been confiscated from the accused by the buy-bust team, the first pack being marked JR-B, and the second and third packs being marked JR-1 and JR-2. Based on the aforequoted testimony of the poseur buyer, however, the essential elements of the offense of illegal sale of dangerous drugs charged against him were only with regard to the transaction directly involving the shabu contained in the pack marked JR-B. This is because there was no delivery of the shabu contained in the packs marked JR-1 and JR-2 and, necessarily, there was no corresponding payment to speak of. In short, no transaction occurred as to the latter dangerous drugs. He should consequently be separately charged with illegal possession of dangerous drugs as defined and penalized under Section 11 of R.A. No. 9165 in respect of the shabu contained in the packs marked JR-1 and JR-2 that were seized from him after he had received the buy-bust money for the shabu contained in the pack marked JR-B. Indeed, the seizure was the actual result of the body frisking by PO2 Villahermosa right after his being informed of his constitutional rights, not of the buy-bust transaction. We stress that the elements of this offense of illegal possession of shabu, a dangerous drug, are that: (1) the accused was in possession of the dangerous drug; (2) his possession was not authorized by law; and (3) he freely and consciously possessed the drug.
Even if illegal sale of dangerous drugs punished under Section 5 of R.A. No. 9165 the offense charged – might necessarily include the illegal possession of dangerous drugs under Section 11 of R.A. No. 9165, the accused could only be found guilty of the first offense vis-a-vis the shabu contained in the pack marked JR-B. He could not be held guilty of the illegal possession of dangerous drugs in violation of Section 11 of R.A. No. 9165 because no information had been filed to charge such offense. It is fundamental that a person is to be tried and found guilty only of the offense charged in the information, or of the offense proved that is necessarily included in the offense charged, conformably with Section 4, Rule 120 of the Rules of Court, which states:
Section 4. Judgment in case of variance between allegation and proof— When there is variance between the offense charged in the complaint or information and that proved, and the offense as charged is included in or necessarily includes the offense proved, the accused shall be convicted of the offense proved which is included in the offense charged, or of the offense charged which is included in the offense proved.
The guilt of the accused was not established beyond reasonable doubt because the State did not satisfactorily explain the substantial lapses committed by the buy-bust team in preserving the chain of custody
The foregoing notwithstanding, the Court resolves to acquit the accused of the crime ofviolation of Section 5 of R.A. No. 9165 charged.
To convict the accused for the illegal sale or the illegal possession of dangerous drugs, the chain of custody of the dangerous drugs must be clearly and competently shown because such degree of proof is what was necessary to establish the corpus delicti. In People v. Alcuizar, the Court has underscored the importance of ensuring the chain of custody in drug related prosecutions, to wit:
The dangerous drug itself, the shabu in this case, constitutes the very corpus delicti of the offense and in sustaining a conviction under Republic Act No. 9165, the identity and integrity of the corpus delicti must definitely be shown to have been preserved. This requirement necessarily arises from the illegal drugs unique characteristic that renders it indistinct, not readily identifiable, and easily open to tampering, alteration or substitution either by accident or otherwise. Thus, to remove any doubt or uncertainty on the identity and integrity of the seized drug, evidence must definitely show that the illegal drug presented in court is the same illegal drug actually recovered from the accused-appellant; otherwise, the prosecution for possession under Republic Act No. 9165 fails.
The requirement for establishing the chain of custody fulfills the function of ensuring that unnecessary doubts concerning the identity of the evidence are removed. The Prosecution does not comply with the requirement of proving the corpus delicti not only when the dangerous drugs involved are missing but also when there are substantial gaps in the chain of custody of the seized dangerous drugs that raise doubts on the authenticity of the evidence presented in court.
To ensure the chain of custody, Section 21 (1), Article II, of RA No. 9165 demands that:
(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 Implementing Rules and Regulations (IRR) of RA No. 9165 complement the statutory definition of the chain of custody thusly:
(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;
The importance of the chain of custody cannot be understated. As we have indicated in People v. Mendoza:
Based on the foregoing statutory rules, the manner and timing of the marking of the seized drugs or related items are crucial in proving the chain of custody. Certainly, the marking after seizure by the arresting officer, being the starting point in the custodial link, should be made immediately upon the seizure, or, if that is not possible, as close to the time and place of the seizure as practicable under the obtaining circumstances. This stricture is essential because the succeeding handlers of the contraband would use the markings as their reference to the seizure. The marking further serves to separate the marked seized drugs from all other evidence from the time of seizure from the accused until the drugs are disposed of upon the termination of the criminal proceedings. The deliberate taking of these identifying steps is statutorily aimed at obviating switching, “planting” or contamination of the evidence. Indeed, the preservation of the chain of custody vis a-vis the contraband ensures the integrity of the evidence incriminating the accused, and relates to the element of relevancy as one of the requisites for the admissibility of the evidence.
Was the chain of custody preserved in this case?
It appears clear to us as a reviewing court that the chain of custody was not preserved in the manner required by the aforementioned guidelines fixed by law. The arresting officers committed serious lapses that put into grave doubt the integrity of the evidence presented against the accused.
First of all, the confiscated items were not marked immediately after the seizure. In that regard, PO1 Miro recalled that he was the one who had placed the markings JR-B, JR-1 and JR-2 on the packs of shabu that were brought to the PNP Crime Laboratory, and clarified on cross-examination that he had himself placed the markings at the police station. Yet, his credibility suffered because of the inconsistency of his recollection of this crucial part of the chain of custody with those of poseur buyer PO2 Villahermosa and P/Chief Inspector Banzon, who declared that it was SPO4 Jake Rojas who had placed the markings on the packs. The inconsistency among the witnesses of the State could not be dismissed as trivial or inconsequential in view of the defining role of the initial marking of the confiscated items.
Secondly, the law specifically required that the marking must be witnessed by the accused, but there was no credible showing by the State that the accused had actually witnessed the process of marking. This meant that the confiscation of the shabu was not properly insulated from doubt.
Thirdly, another substantial gap in the chain of custody concerned the absence of any representative of the media or of the Department of Justice (DOJ), and of the elected public official during the buy-bust operation and at the time of the confiscation of the dangerous drugs from the accused in the area of operation. The Prosecution did not attempt to explain why such presence of the media or DOJ representatives, and of the elected public official had not been procured despite the buy-bust operation being mounted in the afternoon of November 27, 2002 following two weeks of surveillance to confirm the veracity of the report on the illegal trading in drugs by the accused. The objective of requiring their presence during the buy-bust operation and at the time of the recovery or confiscation of the dangerous drugs from the accused in the area of operation was to ensure against planting of evidence and frame up. It was clear that ignoring such objective was not an option for the buy-bust team if its members genuinely desired to protect the integrity of their operation. Their omission attached suspicion to the incrimination of the accused. The trial and appellate courts should not have tolerated the buy-bust team’s lack of prudence in not complying with the procedures outlined in Section 21(1), supra, in light of the sufficient time for them to comply.
And, lastly, the arresting officers did not prepare any inventory of the confiscated items, and did not take photographs of the items. Had there been an inventory prepared or photographs taken, the Prosecution would have surely formally offered them as evidence. But no such offer was made. As such, the omissions were another serious gap in the chain of custody.
Under the last paragraph of Section 21(a), Article II of the IRR of R.A. No. 9165, a saving mechanism has been provided to ensure that not every case of non-compliance with the procedures for the preservation of the chain of custody will irretrievably prejudice the Prosecution’s case against the accused. To warrant the application of this saving mechanism, however, the Prosecution must recognize the lapse or lapses, and justify or explain them. Such justification or explanation would be the basis for applying the saving mechanism. Yet, the Prosecution did not concede such lapses, and did not even tender any token justification or explanation for them. The failure to justify or explain underscored the doubt and suspicion about the integrity of the evidence of the corpus delicti. With the chain of custody having been compromised, the accused deserves acquittal. In other words, his defenses of denial and frame up defenses of the accused, the unexplained procedural lapses committed by the buy-bust team, on its own, created a reasonable doubt about the guilt of accused given the uncertainty over the identity and integrity of the seized shabu that the State presented as evidence of his guilt.
The presumption of regularity in the performance of duty
in favor of the arresting officers did not prevail over the presumption of innocence in favor of the accused
The CA observed that the presumption of regularity in the performance of duty in favor of the arresting officers was not overturned by the proof adduced by the Defense clearly and convincingly showing improper motive on their part to falsely incriminate the accused.
The accused charged with a violation of the Comprehensive Drugs Act of 2002 is always presumed innocent of the crime charged against him. This presumption of his innocence, which has been enshrined in Section 14, Article III (The Bill of Rights) of the Constitution, ensures that: “In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved.” It underlies our system of criminal justice, and far outweighs any other presumption, particularly one that is essentially a rule of evidence. In People v. Mendoza, we have fittingly explained the superiority of the presumption of innocence over the lesser presumption of regularity of performance of official duty, as follows:
We have usually presumed the regularity of performance of their official duties in favor of the members of buy-bust teams enforcing our laws against the illegal sale of dangerous drugs. Such presumption is based on three fundamental reasons, namely: first, innocence, and not wrong-doing, is to be presumed; second, an official oath will not be violated; and, third, a republican form of government cannot survive long unless a limit is placed upon controversies and certain trust and confidence reposed in each governmental department or agent by every other such department or agent, at least to the extent of such presumption. But the presumption is rebuttable by affirmative evidence of irregularity or of any failure to perform a duty. Judicial reliance on the presumption despite any hint of irregularity in the procedures undertaken by the agents of the law will thus be fundamentally unsound because such hint is itself affirmative proof of irregularity.
The presumption of regularity of performance of official duty stands only when no reason exists in the records by which to doubt the regularity of the performance of official duty. And even in that instance the presumption of regularity will not be stronger than the presumption of innocence in favor of the accused. Otherwise, a mere rule of evidence will defeat the constitutionally enshrined right to be presumed innocent. Trial courts are instructed to apply this differentiation, and to always bear in mind the following reminder issued in People v. Catalan:
x x x We remind the lower courts that the presumption of regularity in the performance of duty could not prevail over the stronger presumption of innocence favoring the accused. Otherwise, the constitutional guarantee of the accused being presumed innocent would be held subordinate to a mere rule of evidence allocating the burden of evidence. Where, like here, the proof adduced against the accused has not even overcome the presumption of innocence, the presumption of regularity in the performance of duty could not be a factor to adjudge the accused guilty of the crime charged.
Moreover, the regularity of the performance of their duty could not be properly presumed in favor of the policemen because the records were replete with indicia of their serious lapses. As a rule, a presumed fact like the regularity of performance by a police officer must be inferred only from an established basic fact, not plucked out from thin air. To say it differently, it is the established basic fact that triggers the presumed fact of regular performance. Where there is any hint of irregularity committed by the police officers in arresting the accused and thereafter, several of which we have earlier noted, there can be no presumption of regularity of performance in their favor.
In view of the many notable serious procedural lapses committed by the buy-bust team, the benefit of the presumption of the regularity of the performance of duty by the arresting officers is indubitably unwarranted.
WHEREFORE, the Court REVERSES and SETS ASIDE the decision promulgated on June 13, 2011 by the Court of Appeals in CA-G.R. CEB CR-H.C. No. 00792 entitled People v. Jehar Reyes; ACQUITS accused-appellant JEHAR REYES of the offense charged on the ground of reasonable doubt; and ORDERS his immediate release from detention at the National Penitentiary, unless there are other lawful causes warranting his continued detention.
The Court DIRECTS the Director of the Bureau of Corrections to fortwith implement this decision, and to report his action hereon to this Court within ten (10) days from receipt.
No pronouncement on costs of suit.
Sereno, C.J, Leonardo-De Castro, Perlas-Bernabe, and Caguioa, JJ., concur.
(Citations omitted. Click the case title below to see the original)