CASE BRIEF NO. 2019-0074


“Even if the prosecution would present all other members of the buy-bust team to attest to the fact that a buy-bust operation took place, it would not serve the purpose of establishing the elements of the crime since they were not there at the very scene.


CASE: People of the Philippines vs. Restbei B. Tampus [G.R. No. 221434, February 06, 2019]

PONENTE: Justice Antonio T. Carpio

SUBJECT:
A.       SPECIAL LAW- RA 9165 or the “Comprehensive Dangerous Drugs Act of 2002”
          a.   Chain of Custody
          b.   Witness requirement
          c.   How and when to conduct the marking, physical inventory, and photography of the seized items be conducted

FACTS:
Sometime in November 2010, the police got information of the illegal drug activities of Tampus. Acting on the said information, P/Chief Insp. Santander held a conference with other police officers for the conduct of a buy-bust operation against Restbei Tampus. The informant, who had direct contact with Tampus, told the police officers that Tampus would sell about a kilo of shabu for the negotiated amount of P3,000,000.00. PO1 Bacatan was designated as the poseur-buyer and it was agreed that he, together with the informant would meet with Tampus at Gen. Maxilom Avenue.

At around 9:30 in the morning of November 9, 2010, PO1 Bacatan and the informant met with Tampus at the agreed place (Gen. Maxilom Avenue). After the informant introduced PO1 Bacatan to Tampus as the buyer of shabu, the informant left. Tampus, who was then bringing a bag, asked PO1 Bacatan if he had the money with him. When he said yes, they agreed to transfer to another place where it was safe. They boarded a taxi cab and checked into a room of a certain hotel. The rest of the buy-bust team remained at Jollibee, Gorordo Avenue. No transaction of sale took place yet. Upon arriving at the hotel, PO1 Bacatan handed the money, which he had placed in a bag, to Tampus who handed him the shabu. He then identified himself as a police officer and placed Tampus under arrest. Using the pre-arranged signal, he called P/Chief Insp. Santander to tell him that the buy-bust operation had been consummated. The buy-bust team led by P/Chief Insp. Santander then arrived at the hotel. Several members of the media also arrived.

PO1 Bacatan placed markings on the shabu taken from Tampus, prepared an inventory and had photographs taken, all at the place where Tampus was arrested. Tampus was thereafter brought to the police station and the shabu was brought to the Crime Laboratory for examination. The buy-bust money was also brought to the police station where the incident was entered in the police blotter. The laboratory examination of the shabu yielded positive results for methamphetamine hydrochloride.

Tampus was charged with Violation of Section 5, Article II of R.A. 9165.

After trial, the RTC convicted Tampus. RTC gave credence to Officer Bacatan’s testimony that established in detail the negotiation for the sale of P3,000,000 worth of shabu.

The RTC also stated that the chain of custody was duly established. The RTC declared:

As stated earlier, the pack of shabu was sold to officer Bacatan by Tampus. The former placed the markings “RTB-11-9-10” on the illegal drug and brought the same to the office and finally delivered it to the PNP Crime Laboratory for examination. It was duly received by officer Rama and turned it [sic] over to P/Supt. Salinas. After her examination of the illegal drug, she submitted the same, the letter request and her Chemistry Report No. D-1063-2010 to officer Bucayan, Evidence Custodian of the laboratory. Finally, the subject shabu was presented in court.

The CA affirmed the ruling of the RTC.

The CA rejected Tampus’ contention that the chain of custody was not established because not one of the media representatives or witnesses signed the receipt. The CA ruled that the succession of events, established by the evidence, shows that the shabu taken from appellant was the same one tested, subsequently identified, and testified to in court. Non-compliance with Section 21, especially as to the lack of signatures of media personnel in the present case, is not fatal as long as there is a justifiable ground therefor, and as long as the integrity of the confiscated items is properly preserved by the apprehending officers.

The PAO appealed before the Supreme Court (this Court) on behalf of Tampus.


ISSUES:
A.       Whether or not the prosecution complied with the requirements of the chain of custody under Section 21 of RA 9165.
a.   Who are the required witnesses during the conduct of physical inventory and taking of photograph of the seized items in drugs cases?
b.   What constitutes justifiable reasons for the absence of any of the witnesses?


RULING:
A.
Section 21 of RA 9165 states:

Section 21. xxxx

(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; x x x x

The implementing rule for Section 21 of RA 9165 states:

SECTION 21. xxxx

(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;

x x x x
On 15 July 2014, Republic Act No. 10640 amended Section 21 of RA 9165. The pertinent provision states:

Section 21. xxxx

(1) The apprehending team having initial custody and control of the dangerous drugs, controlled precursors and essential chemicals, instruments/paraphernalia and/or laboratory equipment shall, immediately after seizure and confiscation, conduct a physical inventory of the seized items and photograph the same in the presence of the accused or the persons from whom such items were confiscated and/or seized, or his/her representative or counsel, with an elected public official and a representative of the National Prosecution Service or the media 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, finally, That noncompliance [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 and custody over said items.

x x x x
It is clear that the conduct of physical inventory and taking of photograph of the seized items in drugs cases must be in the presence of at least three (3) witnesses, particularly: (1) the accused or the persons from whom such items were confiscated and seized or his/her counsel, (2) an elected public official, and (3) a representative of the National Prosecution Service or the media. The three witnesses, thereafter, should sign copies of the inventory and be given a copy thereof.

People v. Sipin [G.R. No. 224290, June 11, 2018] ruled what constitutes justifiable reasons for the absence of any of the three witnesses:

(1) their attendance was impossible because the place of arrest was a remote area; (2) their safety during the inventory and photograph of the seized drugs was threatened by an immediate retaliatory action of the accused or any person/s acting for and in his/her behalf; (3) the elected official themselves were involved in the punishable acts sought to be apprehended; (4) earnest efforts to secure the presence of a DOJ or media representative and an elected public official within the period required under Article 125 of the Revised Penal Code prove futile through no fault of the arresting officers, who face the threat of being charged with arbitrary detention; or (5) time constraints and urgency of the anti-drug operations, which often rely on tips of confidential assets, prevented the law enforcers from obtaining the presence of the required witnesses even before the offenders could escape.

People v. Lim[G.R. No. 231989, 4 September 2018] enumerated this Court’s mandatory policy to prove chain of custody under Section 21 of RA 9165, as amended:

  1. In the sworn statements/affidavits, the apprehending/seizing officers must state their compliance with the requirements of Section 21(1) of RA 9165, as amended, and its IRR.
  2. In case of non-observance of the provision, the apprehending/seizing officers must state the justification or explanation therefor as well as the steps they have taken in order to preserve the integrity and evidentiary value of the seized/confiscated items.
  3. If there is no justification or explanation expressly declared in the sworn statements or affidavits, the investigating fiscal must not immediately file the case before the court. Instead, he or she must refer the case for further preliminary investigation in order to determine the (non) existence of probable cause.
  4. If the investigating fiscal filed the case despite such absence, the court may exercise its discretion to either refuse to issue a commitment order (or warrant of arrest) or dismiss the case outright for lack of probable cause in accordance with Section 5, Rule 112, Rules of Court.

In this case, the Regional Special and Appealed Cases Unit of the PAO, on behalf of Tampus, pointed out in its brief the irregularities committed by the apprehending authorities, thus:

In the course of PO1 Bacatan’s testimony, he unravelled that from the Gen. Maxilom Avenue, he and Tampus moved to a hotel. The rest of the buy-bust team remained at Jollibee, Gorordo Avenue. At this point when the two moved out from the original place, no transaction of sale took place yet.

While at first, the poseur-buyer and Tampus may be visible from where the team stood at Jollibee, the two left for a different place quite far removed. The rest of the team were not there to see or hear anything material to this case for illegal sale of drugs. What truly transpired that very time is only known between PO1 Adriano Bacatan and Tampus.

Even if the prosecution would present all other members of the buy-bust team to attest to the fact that a buy-bust operation took place, it would not serve the purpose of establishing the elements of the crime since they were not there at the very scene. They left the heart of the operation to just one person, PO1 Bacatan.

Allegedly, the buy-bust team took photos of the inventory. But when the prosecutor asked PO1 Bacatan to identify what or who were on the photos, nothing about his answers would show that the requirements of Section 21, Paragraph 1 of Republic Act 9165 were met which provides:

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.

PO1 Adriano Bacatan testified:

Q:      Now, I’m showing to you photographs, seven (7) photographs attached to the record, please go over these photographs and tell the Court whether these are the same photographs that were taken on the items during the inventory that you conducted?

A:      Yes, sir. This one is the picture taken during the preparation of the inventory of the evidences.

Q:      Now, please go over the first photograph, who is being depicted on this first photograph?

A:      This person wearing white t-shirt, this is me, sir.

Q:      And what is this on top of the table?

A:      This plastic pack containing white crystalline substance placed on top of the table is the shabu I bought from the suspect, sir.

Q:      The second photograph, who is this depicted on this second photograph?

A:      This woman is our subject, “Bing”, and she was arrested for selling shabu, sir.

Q:      Now, this third photograph, what is being depicted on this third photograph?

A:      On this picture is the pack of shabu I bought from the accused and the next picture is the colored blue bag where the money was placed and beside the bag is the pack of shabu.

Q:      Now, on this 8th photograph, what is being shown in this?

A:      This is the room of the Traveller’s Lodge where we checked in and the door was opened, sir.

Q:      So, all the rest of the photographs were taken inside the room where you and the accused transacted?

A:      Yes, sir.

The question which now confronts us is at which point did the media representatives and Mayor Michael Rama arrive? Their presence during the inventory was not identified in the photos. What PO1 Adriano Bacatan enumerated as the ones appearing were himself, the drugs allegedly seized and Tampus.

Granting arguendo, even if the other persons required were reflected in the photos, it is not conclusive of their involvement in the actual inventory as they did not sign the inventory receipt. In such a situation how could it be proven that the policemen, especially PO1 Adrian Bacatan, faithfully conducted the operation? It needs emphasis once more that the other members of the team were not there when the alleged transaction occurred. There stood a high occasion for irregularities.

PO1 Adriano Bacatan described a highly improbable scenario as follows:

Q:      I’m curious as to what was the condition of the bag for the accused to believe that inside this bag was P3 Million?

A:      When this bag was shown to the accused, this masking tape attached was not yet placed or attached to this bag, ma’am, this bag containing the boodle money and the genuine money and on top of these wad of papers were four pieces genuine money of P1,000.00 bills and when I showed this bag to the accused, I partially opened the bag and showed to her the contents and what can be seen is just the genuine money of Php 1,000.00 bills. During the inventory the contents of this bag were taken out in the presence of the media personnel.

Q:      So, you want to impress [to] this Honorable Court that the accused did not open the bag or did not even attempt to examine the contents thereof, she just believed you with just slightly opening it and with only the P1,000.00 bills visible to her?

A:      She opened the bag after she handed the pack of shabu to me and I handed this bag to her and she examined it, ma’am.

Q:      You mean she handed first the item before examining the payment?

A:      No, ma’am, there was really an exchange. She showed to me the pack of shabu and handed it to me and at the same time, I slightly opened this bag and showed to her the contents. So, there was a simultaneous exchange of the shabu and the bag.

There is nothing trivial about the amount involved in the transaction alleged to have taken place. It is a staggering P3 Million. It is beyond imagination that Tampus should deal with the situation inadvertently. But this is the scenario as PO1 Adriano Bacatan described.

According to PO1 Adriano Bacatan, he merely half-opened the bag where only four marked genuine money were placed along with the voluminous wads of paper. After that Tampus handed the bag where the shabu was. It was merely that, despite the multi-million transaction.

It would have been excusable that Tampus would be lax in dealing with PO1 Adriano Bacatan had they had transactions as such many times before. But that was their first encounter. It would not take a genius to understand that where a large sum of money is at stake, all precautions possible would be undertaken.

What the law requires is an inventory signed by a media representative. But it could not escape notice that despite the presence of a number of media men, not one of them signed the inventory receipt.

It is grave error to trivialize the necessity of the number and identity of the witnesses enumerated in the law. The present case is a clear-cut example of the police officers’ cavalier attitude towards adherence to procedure and protection of the rights of the accused. This is contrary to what is expected from our servants and protectors. Not only was there non-observance of the three-witness rule, there was also no justification offered for its non-observance.

Related Case Briefs:
a.       People v. Lim [G.R. No. 231989, 4 September 2018]
b.       People v. Sipin [G.R. No. 224290, June 11, 2018]
————————————————-

THINGS DECIDED:

A.       It is clear that the conduct of physical inventory and taking of photograph of the seized items in drugs cases must be in the presence of at least three (3) witnesses, particularly: (1) the accused or the persons from whom such items were confiscated and seized or his/her counsel, (2) an elected public official, and (3) a representative of the National Prosecution Service or the media. The three witnesses, thereafter, should sign copies of the inventory and be given a copy thereof.

B.       People v. Sipin [G.R. No. 224290, June 11, 2018] ruled what constitutes justifiable reasons for the absence of any of the three witnesses:

(1) their attendance was impossible because the place of arrest was a remote area; (2) their safety during the inventory and photograph of the seized drugs was threatened by an immediate retaliatory action of the accused or any person/s acting for and in his/her behalf; (3) the elected official themselves were involved in the punishable acts sought to be apprehended; (4) earnest efforts to secure the presence of a DOJ or media representative and an elected public official within the period required under Article 125 of the Revised Penal Code prove futile through no fault of the arresting officers, who face the threat of being charged with arbitrary detention; or (5) time constraints and urgency of the anti-drug operations, which often rely on tips of confidential assets, prevented the law enforcers from obtaining the presence of the required witnesses even before the offenders could escape.

C.       People v. Lim[G.R. No. 231989, 4 September 2018] enumerated this Court’s mandatory policy to prove chain of custody under Section 21 of RA 9165, as amended:

a.   In the sworn statements/affidavits, the apprehending/seizing officers must state their compliance with the requirements of Section 21(1) of RA 9165, as amended, and its IRR.

b.  In case of non-observance of the provision, the apprehending/seizing officers must state the justification or explanation therefor as well as the steps they have taken in order to preserve the integrity and evidentiary value of the seized/confiscated items.

c.  If there is no justification or explanation expressly declared in the sworn statements or affidavits, the investigating fiscal must not immediately file the case before the court. Instead, he or she must refer the case for further preliminary investigation in order to determine the (non) existence of probable cause.

d.  If the investigating fiscal filed the case despite such absence, the court may exercise its discretion to either refuse to issue a commitment order (or warrant of arrest) or dismiss the case outright for lack of probable cause in accordance with Section 5, Rule 112, Rules of Court.


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