Republic of the Philippines

REGIONAL TRIAL COURT

7th Judicial Region
Branch 13, Cebu City

PEOPLE OF THE PHILIPPINES,

Plaintiff,

vs. CRIM. CASE NO. CBU-109242

For: Viol. of Sec. 12 R.A. 9165

ROMELYN MARGALLO,
Accused.
x - - - - - - - - - - - - - - - - - - - - - - - - - -/

DEMURRER TO EVIDENCE

COMES NOW Accused, through counsel most

respectfully submits this Demurrer to Evidence by averring:

1. The State, – after presenting the witnesses for the

prosecution, the prosecution formally rested her case.

2. The defense is of the respectful stance that the State -

taking into account the entirety of the testimony of
the witness- failed to prove the guilt of the accused
beyond reasonable doubt. In essence the testimony of
witness is not enough to convict the accused beyond
reasonable doubt.

3. In criminal cases such in this case, the prosecution is

obliged to prove the guilt of the accused beyond
reasonable doubt. If the prosecution fails to discharge
that burden, the accused need not present any
evidence at all.

PRELIMINARY STATEMENT
The state cannot simply intrude indiscriminately into
houses, papers, effects, and most importantly, on the

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 person of an individual. 1 This is an inviolable right
2
guaranteed in our Constitution , where it states that:

“Sec. 2. The right of the people to be

secure in their persons, houses, papers and
effects against unreasonable searches and
seizures of whatever nature and for any purpose
shall be inviolable, and no search warrant or
warrant of arrest shall issue except upon
probable cause to be determined by the judge
after examination under oath or affirmation of
the complainant and the witnesses he may
produce, and particularly describing the place to
be searched and the persons or things to be
seized.”

Consequently, a violation of the above-quoted

constitutional provision, articles seized are inadmissible as
evidence3, thus:

“Sec. 3 (2) Any evidence obtained in

violation of this or the preceding section shall be
inadmissible in evidence for any purpose in any
proceeding.”

In seeking for the dismissal of this case by way of

demurrer to evidence, it is humbly submitted that the
prosecution failed to establish beyond reasonable doubt.

FACTS OF THE CASE

Prosecutions witness testified that the accused in this

case was arrested for allegedly having pot session in an
open shanty.

Romelyn Margallo, the accused, was then charge for

Violation of Section 12, Article II of Republic Act 9165.

DISCUSIONS AND ARGUMENTS

1
People vs. Aruta, 288 SCRA 626.
2
Sec. 2, Art. III, 1987 Phil. Constitution.
3
Sec. 3(2), Art. III, 1987 Phil. Constitution.
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 Non-compliance of Section
21, art. 2 of R.A. 9165 nor
gave a justifiable reason
for its non-compliance.

The witness testified that he recovered the evidence in

this case and marked the evidence at the area but the
inventory was prepared at the police station. Noteworthy is
that, no picture was taken during the alledge marking to
prove that the said evidence was in fact marked at the
area. The police officer could have easily taken photograph
during the marking to prove that it was in fact marked at
the area. Assuming that it was marked at the area, no
witness was present during the marking as the witness only
appeared during the preparation of the inventory at the
police station.

All told, it creates a doubt as to whether or not

the same evidence allegedly recovered from the
accused was the same evidence presented before the
court.

The Prosecution miserably failed to establish the

mandatory compliance required under Section 21, Art. 2 of
R.A. 9165 nor gave a justifiable reason for its non-
compliance. As held by the Supreme Court in the case of
Pp. vs. Sanchez to wit:

“A buy-bust operation is a form of entrapment

employed by peace officers to apprehend prohibited
drug law violators in the act of committing a drug-
related offense. Because of the built-in danger for
abuse that a buy-bust operation carries, it is
governed by specific procedures on the seizure and
custody of drugs, separately from the general law
procedures geared to ensure that the rights of
people under criminal investigation and of the
accused facing a criminal charge are safeguarded. 
We expressed this concern in People v. Tan, when
we recognized that “by the very nature of anti-
narcotic operations, the need for entrapment
procedures, the use of shady characters as
informants, the ease with which sticks of marijuana
or grams of heroin can be planted in the pockets or
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 hands of unsuspecting provincial hicks, and the
secrecy that inevitably shrouds all drug deals, the
possibility of abuse is great. Thus, the courts have
been exhorted to be extra vigilant in trying drug
cases lest an innocent person is made to suffer the
unusually severe penalties for drug offenses.”
 
The required procedure on the seizure and custody of
drugs is embodied in Section 21, paragraph 1, Article II of
R.A. No. 9165, which states:

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.

This is implemented by Section 21(a), Article II of the

Implementing Rules and Regulations of R.A. No. 9165,
which reads:

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: x x x 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 item
(People vs. Sanchez, GR No. 175832; October 15,
2008).

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           The records of the present case show that only a
local elected official signed the inventorty despite its
mandatory terms, as indicated by the use of “shall” in its
directives. Furthermore, the description of the evidence is
general because it did not mention of the marking made by
the arresting officer.

The Court stressed in People v. Vicente Sipin y De

castro:
The prosecution bears the burden of proving a
valid cause for non-compliance with the
procedure laid down in Section 21 of R.A. 9165,
as amended. It has the positive duty to
demonstrate observance thereto in such a way
that during the trial proceedings, it must initiate
in acknowledging and justifying any perceived
deviations from the requirements of law. Its
failure to follow the mandated procedure must
be adequately explained, and must be proven as
a fact in accordance with rules on evidence. It
should take note that the rules require that the
apprehending officer do not simply mention a
justifiable ground, but also clearly state this
ground in their sworn affidavit, coupled with a
statement on the step they took to preserved
the integrity of the seized items. Strict
adherence to section 21 is required where the
quantity of the illegal drugs seized is miniscule,
since it is highly susceptible to planting,
tampering or alteration of evidence.4

It must be alledge and proved that the presence of

the three witnesses to the physical inventory and
photograph of the illegal drug seized was mot obtained due
to reason/s such as:

(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
officials themselves were involved in the
punishable acts sought to apprehended; (4)
Ernest effort to secure the presence of the
4
Pp v. Mola, G.R. No. 226481, April 18, 2018
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 DOJ and the media representative and an
elected public official within the period
require under art. 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 constraint and the 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 offender
could escape.5

Earnest effort to secure the attendance of the

necessary witnesses must be proven. People v. Ramos 6
requires:

It is well to note that the absence of these

required witnesses does not per se render
the confiscated items inadmissible. However,
a justifiable reason for such failure or a
showing of any genuine and sufficient effort
to secure the required witnesses under
section 21 of R.A. 9165must be adduced. In
People v. Umipang, the court held that the
prosecution must show that earnest efforts
were employed in contacting the
representative enumerated under the law for
“a sheer statement that the representative
were unavailable without so much as an
explanation on whether serious attempts
were employed to look for other
representatives, given the circumstance is to
be regarded as a flimsy excuse.” Verily,
mere statements of unavailability, absent
actual serious attempts to contact the
required witnesses are unacceptable as
justified grounds for non compliance. These
consideration arise from the fact that police
officer are ordinarily given sufficient time –
beginning from the moment they have
received the information about the activities
of the accused until the time of his arrest -
to prepare for a buy bust operation and
consequently, make the necessary
arrangements beforehand knowing full well
5
People v. Vicente Sipin y De Castro G.R. No. 224290, June 11, 2018
6
G.R. No. 233744, February 28, 2018
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Pp vs. Romelyn Margallo
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 that they have to strictly comply with the set
procedure prescribed in section 21 of R.A.
9165. As such, police officer are compelled
not only to state reasons for their non-
compliance, but must in fact, also convince
the court that they exerted earnest effort to
comply with the mandated procedure, and
that under the given circumstances, their
actions were reasonable.7

In this case, No genuine and sufficient attempt to

comply with the law. The inventory itself is questionable
whether the witness really signed the inventory at the area
or on a later date considering that no picture was taken at
that time.

 In People v. Orteza, the Court had the occasion to

discuss the implications of the failure to comply with
Section 21, paragraph 1, to wit: 

… In People v. Laxa, where the buy-bust

team failed to mark the confiscated marijuana
immediately after the apprehension of the
accused, the Court held that the deviation from
the standard procedure in anti-narcotics
operations produced doubts as to the origins of
the marijuana. Consequently, the Court
concluded that the prosecution failed to
establish the identity of the corpus delicti.  
 
The Court made a similar ruling in People v. Kimura,
where the Narcom operatives failed to place markings on
the seized marijuana at the time the accused was arrested
and to observe the procedure and take custody of the
drug. 

  The Supreme Court reached the same conclusion in

People v. Nazareno and People v. Santos, where it again
stressed the importance of complying with the prescribed
procedure.

An effect of this lapse, as held in Lopez v. People, is to

negate the presumption that official duties have been
regularly performed by the police officers. Any taint of
irregularity affects the whole performance and should make
7
Pp v. Crespo, G.R. No. 230065 , March 14, 2018
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 the presumption unavailable.  There can be no ifs and buts
regarding this consequence considering the effect of the
evidentiary presumption of regularity on the constitutional
presumption of innocence. 

In numerous cases, the court was inclined to uphold

the presumption of regularity in the performance of duty of
public officers.8 However, this is not a hard-and-fast rule. It
does not mean that we straight away and without a blink of
the eye rule on the regularity of their performance of
duties. We at all times harmonize the interest of the
accused alongside the interest of the State.

Inconsistencies committed by the police officers

amounting to procedural lapses in observing the chain of
custody of evidence requirement effectively negated this
presumption. Their inaccurate recall of events amounted to
irregularities that affected the presumption and tilted the
evidence in favor of the accused. The absence of improper
motive tends to sustain inexistence but does not absolutely
rule out false charges.

In case of conflict between the presumption of

regularity of police officers and the presumption of
innocence of the accused, we rule that the latter must
prevail as the law imposes upon the prosecution the highest
degree of proof of evidence to sustain conviction.9

No Presumption of Regularity;
Improper performance of duty
established

The prosecution may also argue that there is

presumption of regularity in the performance of official
functions. However, the UNDISPUTED AND
ESTABLISHED FACTS show improper and irregular
performance of duty for admitted or established non-
compliance with Mandatory Requirements of DRUG
OPERATION. Besides, presumption of regularity does
8
People v. Joseph Robelo y Tungala, G.R. No. 184181, 26 November 2012, Dimacuha v.
People, G.R. No. 143705, 23 February 2007, 516 SCRA 513, 525, People v. Serrano,G.R. No.
179038, 6 May 2010, 620 SCRA 327, 338.
9
People v. Gatlabayan, G.R. No. 186467, 13 July 2011, 653 SCRA 803, 824 citing People v.
Pagaduan, G.R. No. 179029,9 August 2010,627 SCRA 308,326 and People v. Magat, G.R.
No. 179939, 29 September 2008, 567 SCRA 86, 99.
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 not prevail over presumption of innocence. (People vs.
Ong, et al., 432 SCRA 470.)

“The Supreme Court is aware that in

some instances law enforcers resort to the
practice of planting evidence to extort
money from a civilian; The presumption
that police officers involved in a buy-bust
operation have performed their duties
regularly can be overtuned if clear and
convincing evidence is presented to
prove either of two things – (1) that they
were not properly performing their
duty, OR (2) that they were inspired by any
improper motive. (People vs. Wu Tuan
Yuan, 422 SCRA 182)

As shown in the cases of Ong, Kimura and Zarraga,

earlier cited, the BURDEN of proof to evince justifiable
grounds for non-compliance with the Mandatory
Procedures in Drug Operation rests upon the
prosecution. Without offer of evidence, the
prosecution cannot fairly and reasonably justify the
non-compliance. “The Court shall consider no
evidence which has not been formally offered.” (Rule
132, Section 34, Rules of Court)

People v. Santos instructively tells us that the

presumption of regularity in the performance of official duty
cannot by itself overcome the presumption of innocence nor
constitute proof beyond reasonable doubt. In People v.
Cañete, we also said:

“While the Court is mindful that the

law enforcers enjoy the presumption of
regularity in the performance of their
duties, this presumption   cannot prevail
over the constitutional right of the accused
to be presumed innocent and it cannot, by
itself constitute proof of guilt beyond
reasonable doubt. The presumption of
regularity in the performance of official duty
cannot be used as basis for affirming
accused-appellant’s conviction because
“First, the presumption is precisely just that
– a mere presumption. Once challenged by

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 evidence, as in   this case, xxx [it] cannot
be regarded as binding truth. Second, the
presumption of regularity in the
performance of official functions cannot
preponderate over the presumption of
innocence that prevails if not overthrown by
proof beyond reasonable doubt.” The
presumption also cannot prevail over
positive averments concerning violations of
the constitutional rights of the accused. In
short, the presumption of regularity in the
performance of official duty cannot by itself
overcome the presumption of innocence nor
constitute proof beyond reasonable doubt
(People vs. Sanchez, GR No. 175832;
October 15, 2008).

To at least cure the defect of the prosecution

witnesses to identify the object evidence, the prosecution
should have properly established the chain of custody,
however, such was not done at the case at bar.

The recent case of Lopez v. People is particularly

instructive on how the Supreme Court expect the chain of
custody or “movement” of the seized evidence to be
maintained and why this must be shown by evidence:  
  
         As a method of authenticating
evidence, the chain of custody rule requires
that the admission of an exhibit be preceded
by evidence sufficient to support a finding
that the matter in question is what the
proponent claims it to be. It would include
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. These witnesses would
then describe the precautions taken to
ensure that there had been no change in
the condition of the item and no

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 opportunity for someone not in the chain
to have possession of the same.
           
While testimony about a perfect chain is
not always the standard because it is almost
always impossible to obtain, an unbroken
chain of custody becomes indispensable
and essential when the item of real
evidence is not distinctive and is not
really identifiable, or when its condition
at the time of testing or trial is critical,
or when a witness has failed to observe
its uniqueness. The same standard likewise
obtains in case the evidence is susceptible to
alteration, tampering, contamination and
even substitution and exchange. In other
words, the exhibit's level of susceptibility to
fungibility, alteration or tampering – without
regard to whether the same is advertent or
otherwise not – dictates the level of
strictness in the application of the chain of
custody rule.

Inventory cannot be
considered against the
accused
In this case, the accused was asked to sign the
inventory during custodial investigation without the
precense of counsel to explain to the accused the nature
and consequence of her signing the inventory. The accused
did not also waive her right to counsel in writing and in the
presence of a counsel.

  A custodial investigation has stricter requirements.  A

custodial investigation requires the presence of a
competent and independent counsel, who is preferably the
accused’s own choice. Furthermore,  the  right  to  counsel 
could only be waived in writing and in the presence of
counsel. A custodial investigation take note is not done in
public, hence the danger  that  confessions  will  be 
extracted  against  the  will  of  the defendant during the
custodial investigation. This danger doesn't 
really exist during trial since the latter is done in public. 

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 In Peopel vs. Teodoro Basay G.R. No. 86941, March 3,
1993 the Supreme Court ruled that:

In the light of the said Section 20, prescribed the

procedure to be followed by peace officers when
making an arrest and when conducting a custodial
investigation. Thus:

At the time a person is arrested, it shall be the

duty of the arresting officer to inform him of the
reason for the arrest and he must be shown the
warrant of arrest, if any. He shall be informed of his
constitutional rights to remain silent and to counsel,
and that any statement he might make could be used
against him. The person arrested shall have the right
to communicate with his lawyer, a relative, or anyone
he chooses by the most expedient means — by
telephone if possible — or by letter or messenger. It
shall be the responsibility of the arresting officer to
see to it that this is accomplished. No custodial
investigation shall be conducted unless it be in the
presence of counsel engaged by the reason arrested,
by any person on his behalf, or appointed by the court
upon petition either of the detainee himself or by
anyone on his behalf. The right to counsel may be
waived but the waiver shall not be valid unless made
with the assistance of counsel. Any statement
obtained in violation of the procedure herein laid
down, whether exculpatory or inculpatory, in whole or
in part, shall be inadmissible in evidence."

The court declared that one's right to be

informed of the right to remain silent and to counsel
contemplates "the transmission of meaningful
information rather than just the ceremonial and
perfunctory recitation of an abstract constitutional
principle." Thus, is not enough for the interrogator to
merely repeat to the person under investigation the
provisions of section 20, Article IV of the 1973
Constitution, now Section 12, Article III of the 1987
Constitution; the former must also explain the effects
of such provision in practical terms — e.g., what the
person under interrogation may or may not do - and
in a language the subject fairly understands. The right
"to be informed" carries with it a correlative obligation
on the part of the police investigator to explain, and
contemplates effective communication which results in
the subject's understanding of what is conveyed.

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 Since it is comprehension that is sought to be
attained, the degree of explanation required will
necessarily vary and depend on the education,
intelligence and other relevant personal circumstances
of the person undergoing investigation. In further
ensuring the right to counsel, it is not enough that the
subject is informed of such right; he should also be
asked if he wants to avail of the same and should be
told that he could ask for counsel if he so desired or
that one could be provided him at his request. If he
decides not to retain counsel of his choice or avail of
one to be provided for him and, therefore, chooses to
waive his right to counsel, such waiver, to be valid
and effective, must still be made with the assistance
of counsel. That counsel must be a lawyer.

The foregoing pronouncements are now

synthesized in paragraphs 1 and 3, Section 12, Article
III of the 1987 Constitution, to wit:

"SECTION 12(1). Any person under investigation for

the commission of an offense shall have the right to
be informed of his right to remain silent and to have
competent and independent counsel preferably of his
own choice. If the person cannot afford the services of
counsel, he must be provided with one. These rights
cannot be waived except in writing and in the
presence of counsel.

xxx xxx xxx

(3) Any confession or admission obtained in violation

of this or Section 17 hereof shall be inadmissible in
evidence against him."

In this case, the inventory is inadmissible in evidence

against the accused.

Well settled is the rule that the evidence of the

prosecution must stand or fall on its own merits. In the
instant case however, the prosecution’s evidence is too
weak to be given credence. It is imperative that the
testimonies of the prosecution witnesses must be credible
enough to warrant a conviction lest an innocent person may
be made to suffer the unusually severe penalties for drug
offenses.

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 Basic constitutional right of the accused is to be
presumed innocent until the contrary is proved by proof
beyond reasonable doubt. Every circumstance favoring his
innocence must be taken into account. The proof against
him must survive the test of reason; the strongest
suspicion must not be permitted to sway judgment (People
vs. Austria, 195 SCRA 700).

All told, it is crystal clear that the people’s case has no

leg to stand on. The factum probans or evidentiary support
is insufficient to prove the factum probandum or the
ultimate fact to be established. Hence, this case should be
dismissed for failure of the prosecution to prove the guilt of
the accused beyond reasonable doubt.

WHEREFORE, premises considered, it is respectfully

prayed of this Honorable Court that this Demurrer to
Evidence be noted and on the basis of the arguments
thereof an Order be issued finding the failure of the
Prosecution to have proven the guilt of the accused beyond
reasonable doubt and to properly DISMISS this case.

Respectfully submitted this May 21, 2019 at Cebu

City, Philippines.

PUBLIC ATTORNEY’S OFFICE

(Counsel for the Accused)
rd
3 Floor Taft Commercial Center
Metro Colon Car Park, Osmena Blvd,
Kalubihan, Cebu City 6000
By:

JULSE G. BACOLOD
Public Attorney
Roll No. 61868
IBP No. 027284
January 3, 2019/Cebu City
MCLE Compliance No. VI-0023212
Valid until April 14, 2022

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 NOTICE

THE CLERK OF COURT

Regional Trial Court
Branch 13, Cebu City

Please submit the foregoing motion for the

consideration of this Honorable Court immediately upon
receipt hereof. Thank you.

JULSE G. BACOLOD

Copy furnished:

HON. PROS. NARUZEN J. DELFIN-LORETE

Assistant Cebu City Prosecutor
Office of the Cebu City Prosecutor
Capitol Compound, Capitol Site, Cebu City

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