Around 4:00 in the afternoon of June 25, 2005, a confidential informant arrived at the police station in Talisay, Cebu City where SPO4 Reynaldo Vitualia and his team were assigned, and reported on the illegal drugs activities of Rosario Bayot Mahinay, allegedly engaged in the sale of marijuana. Upon receipt, the team planned an entrapment operation against Rosario, where a civilian asset was designated as the poseur buyer while the other team members strategically positioned themselves at the area. The team then witnessed the poseur buyer have over the marked P100 bill to Rosario, who in turn handed the marijuana sticks to the civilian asset. The latter then made the pre-arranged signal. The team the arrested Rosario, while the poseur buyer handed the ten sticks to SPO4 Vitualia, who marked all the marijuana sticks, prepared a request for laboratory examination, and submitted the specimen to the PNP Crime Laboratory.
A charge for violation of of Section 5, Article II of Republic Act (R.A.) No. 9165 otherwise known as the “Comprehensive Dangerous Drugs Act of 2002 was thereafter filed against Rosario. The RTC convicted him as charged. The CA affirmed his conviction. In his appeal to the Supreme Court, Rosario decries that ourt a quo erred in convicting him and finding him guilty beyond reasonable doubt due to the non-compliance with the required procedure on the seizure and custody of drugs as embodied in Section 21, Paragraph 1, Article II of R.A. No. 9165.
Whether or not the accused is guilty of the crime charged.
Accused-appellant has consistently argued that the court a quo and the Court of Appeals have erroneously found him guilty beyond reasonable doubt of violating Section 5, Article II of R.A. No. 9165, grounded on the failure of the police officers to comply with procedural requirements of Section 21 of R.A. No. 9165; thus, his belief for acquittal.
He averred that the police officers who executed the buy-bust operation failed to make an inventory of the seized marijuana cigarette sticks as well as to take photographs of the same immediately after confiscation, thereby, failing to establish the unbroken links in the chain of custody of the seized articles ergo the absence of the corpus delicti or the body of the crime.
We are not persuaded.
Section 21(a), Article II of the Implementing Rules and Regulations of R.A. No. 9165 states the manner of conducting the physical inventory and photographs of the seized items. The provision reads as follows:
(1) 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)
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Apparent from the above-quoted proviso is the clear allowance of the law for non-compliance of the procedure in handling seized articles. Fundamentally, non-compliance of the procedure for provided by law does not automatically exonerate the accused of his criminal liability for the offense committed.
In People v. Montevirgen, this Court held:
In other words, the failure of the prosecution to show that the police officers conducted the required physical inventory and take photograph of the objects confiscated does not ipso facto render inadmissible in evidence the items seized. There is a proviso in the implementing rules stating that when it is shown that there exist justifiable grounds and proof that the integrity and evidentiary value of the evidence have been preserved, the seized items can still be used in determining the guilt or im1ocence of the accused. (Underscoring supplied)
Further as held in People v. Glenn Salvador citing People v. Kamad:
There are links that must be established in the chain of custody in a buy-bust situation, namely: “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; and, fourth, the turnover and submission of the marked illegal drug seized from the forensic chemist to the court.”
The Court of Appeals, in its decision, has religiously elaborated the unbroken links in the chain of custody of the seized articles from herein accused-appellant, viz:
The first and second links in the chain of custody are the seizure and marking of the seized items and its turnover to the investigation officer.
As categorically presented in SPO4 Vitualia’s testimony, the ten (10) marijuana sticks recovered from the poseur buyer remained in his custody from the moment it was turned over to him until he has marked the same as “RBM-1” to “RBM-10” immediately after the accused-appellant’s arrest. Following which is the execution of a letter-request for its examination in the PNP Crime Laboratory.
The third link in the chain is the turnover by the apprehending officers of the marked illegal drugs to the laboratory examination.
The submission of the confiscated articles to the PNP Crime Laboratory is supported by the documentary evidence in PSI Patriana’s report filed as “Chemistry Report No. D-905-2005” marked as Exhibit “C,” which shows that the subject articles are examined and yielded positive results. The letter request for examination executed by SPO4 Vitualia was stamped as “received” by the PNP Crime Laboratory on 26 June 2005 at 10:01 A.M. and was received by the officer on duty, PO3 Horca.
The fourth link in the chain is the turnover and submission of the marked illegal drugs from the forensic chemist to the court.
This link is supported by PSI Patriana’s testimony where he elaborated the procedure of the examination of the confiscated articles and stating that the same obtained positive results. Such results gave due credence to the seized articles and qualified the same to be offered in evidence in court.
In the seizure of dangerous drugs and its custody, what is of primordial importance is the untainted integrity and preserved evidentiary value of the seized articles as such would determine the innocence or guilt of the accused. Present jurisprudence dictates that:
In the present case, as contrary to the claim of appellant, the totality of the evidence presented by the prosecution leads to an unbroken chain of custody of the confiscated item from appellant. Though there were deviations from the required procedure, i.e., making physical inventory and taking photograph of the seized item, still, the integrity and the evidentiary value of the dangerous drug seized from appellant were duly proven by the prosecution to have been properly preserved; its identity, quantity and quality remained untarnished. (Italics supplied)
As previously stated, non-compliance with the rigid procedural rules of Section 21 of R.A. No. 9165 does not obliterate the fact of the illegal transaction between the accused-appellant and the poseur buyer.
Well-established is the rule that in order for the prosecution to successfully prosecute an accused for illegal sale of dangerous drugs, the identity of the buyer and the seller must first be established, followed by the object and consideration of the sale and finally the delivery of the thing sold and the payment therefor.
Accordingly, what is of utmost importance is the proof of the consummation of the sale or whether the transaction indeed transpired.
In the instant case, prosecution witness PO3 Navarro To testified that he saw the poseur buyer handed over the marked P100 bill to the accused-appellant and the latter in turn handed over to the former ten (10) sticks of marijuana cigarettes. Thereafter, the poseur buyer acted out the pre-arranged signal to inform the team that the sale has already been consummated and the team immediately rushed towards them and arrested the accused-appellant.
Conversely, for an accused to be convicted of the crime of illegal possession of dangerous drugs, the following must be shown: (1) the accused is in possession of all item or object which is identified to be a prohibited drug; (2) such possession is not authorized by law; and (3) the accused freely and consciously possessed the said drug.
As culled from the facts, the marijuana cigarette sticks were given by the accused-appellant to the poseur buyer and was subsequently turned over by the latter to SPO4 Vitualia thus establishing accused-appellant’s possession of the subject article.
The pertinent provisos of the offense charged and definition of the dangerous substance subject herein, state:
Section 5. Sale, Trading, Administration, Dispensation, Delivery, Distribution and Transportation of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals. – 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 sell, trade, administer, dispense, deliver, give away to another, distribute dispatch in transit or transport any dangerous drug, including any and all species of opium poppy regardless of the quantity and purity involved, or shall act as a broker in any of such transactions. (Emphasis supplied)
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Definition of terms
Section 3. Definitions. As used in this Act, the following tem1s shall mean:(v) Cannabis or commonly known as “Marijuana” or “Indian Hemp” or by its any other name. – Embraces every kind, class, genus, or specie of the plant Cannabis sativa L. including, but not limited to, Cannabis americana, hashish, bhang, guaza, churrus and ganjab, and embraces every kind, class and character of marijuana, whether dried or fresh and flowering, flowering or fruiting tops, or any part or portion of the plant and seeds thereof, and all its geographic varieties, whether as a reefer, resin, extract, tincture or in any form whatsoever. (Emphasis ours)
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The afore-quoted provisions of law explicitly provide that illegal selling of any dangerous drug embraces all of its kind regardless of quantity, character and form. In the instant case, the prohibited drug recovered from accused-appellant is a 1.79-gram of marijuana formed as cigarette sticks, a kind of drug classified as illegal and dangerous as defined under Article I, Section 3, paragraph (v) in relation to the first paragraph Section 5 of R.A. No. 9165.
Contrariwise, for the position of the defense to succeed, clear and convincing evidence must be given to surmount the presumption of regularity in the performance of functions of the police officers. However, accused-appellant failed to provide such degree of proof required to overcome the presumption of regularity.
Too, accused-appellant failed to prove that there lies an ill-motive on the part of the police officers to press charges. Likewise, he failed to substantiate his allegation that they planted evidence on him as corroborated by his own testimony and that it was his first time to see them and had no quarrel with them in the past.
Lastly, in the accused-appellant’s brief, he contended that non presentation of the civilian asset who acted as poseur buyer violates his right to be confronted with the person who implicated him.
As aptly held by the Court of Appeals, the presentation of an asset as witness is insignificant in the prosecution of the offense. Jurisprudence dictates that presentation of the informant assets as witness in court is not an indispensable element to a successful prosecution since their testimonies are merely corroborative and cumulative. Moreover, the ratio behind such nonpresentation is the need to conceal their identity so as to protect them for their valuable service to the law enforcement and not to mention a possible liquidation in the hands of drugs syndicates and their allies.
In sum, we affirm the decision of the appellate court affirming in toto the decision of the court a quo finding accused-appellant guilty beyond reasonable doubt of illegally selling dangerous dn1gs in violation of Section 5, Article II, of Republic Act No. 9165. (Citations omitted)
WHEREFORE, the instant appeal is DISMISSED. Accordingly, the decision of the Court of Appeals dated 24 May 2013 in CA-G.R. CR-H.C. No. 00911 is hereby AFFIRMED in toto.
Carpio,* Velasco, Jr., Peralta, and Reyes, JJ., concur.