DEMURRER TO EVIDENCE DEFENSES DRUG CASE

 
XXX IN HOLDING THAT THE UNDISPUTED FACTS AND
CIRCUMSTANCES DID NOT CONSTITUTE PROBABLE CAUSE
WITHIN THE CONTEMPLATION OF SECTION 2, ARTICLE III OF
THE CONSTITUTION, AND IN HOLDING THAT SUCH FACTS
AND CIRCUMSTANCES NEITHER JUSTIFIED THE
WARRANTLESS SEARCH OF ACCUSED'S VEHICLE AND THE
SEIZURE OF THE CONTRABAND THEREIN.
 
ll
 
XXX IN HOLDING, IN EFFECT, THAT A WARRANTLESS
SEARCH IS CONSTITUTIONALLY ALLOWABLE AND CAN
ONLY BE VALID AS AN INCIDENT TO A LAWFUL ARREST.
 
lII
 
XXX IN DECLARING THE WARRANTLESS ARREST OF THE
ACCUSED AND THE SEARCH AND SEIZURE OF HIS
HANDGUNS UNLAWFUL.
 
IV
 
XXX IN NOT DECLARING THE ACCUSED AS HAVING WAIVED,
AS A RESULT OF HIS SUBMISSION AND FAILURE TO PROTEST
THE SEARCH AND HIS ARREST, HIS CONSTITUTIONAL RIGHT
AGAINST UNREASONABLE SEARCH AND SEIZURE AND HIS
OBJECTION TO THE ADMISSION OF THE EVIDENCE SEIZED.
 
V
 
XXX IN NOT ADMITTING IN
EVIDENCE THE EVIDENCE SEIZED AND OFFERED BY THE
PROSECUTION AND IN NOT DENYING ACCUSED'S DEMURRER
TO EVIDENCE.

The Equipoise Rule and Mandatory Procedures in Drug Operations are

ignored by some judges. Noncompliance with said Mandatory Procedures
abets planting of evidence, extortion and drug trafficking by Police
Scalawags. 

One of the most common way which law enforcement agencies apprehend persons
accused of illegal sale of drugs is through a buy-bust operation. A buy-bust
operation is a form of entrapment, whereby a police agent disguised as a buyer of
illegal drugs undertakes a sales transaction with a seller. Suppose, however, that
there is an irregularity in the buy-bust operation, and illegal drugs are confiscated
from an alleged seller, what are the remedies and defenses of the accused seller?

To convict a person for the sale of illegal drugs under the Comprehensive
Dangerous Drugs Law, the prosecutor must prove the following: (a) the identities
of the buyer and seller, object, and consideration; and (b) the delivery of the thing
sold and the payment for it. In short, the prosecutor must prove that the sale took
place and that the accused was the seller.

An important requirement to convict the accused under this law is that the
prosecution must establish and present the “corpus delicti” or “body of the crime,”
which in this case is the confiscated drugs. Concomitant to this requirement is the
duty of the prosecution to establish the integrity and evidentiary value of the seized
items. Absent this requirement, there is no sufficiency of evidence to convict the
accused beyond reasonable doubt.

The case of People v. Sorin (G.R. No. 212635, March 25, 2015) is instructive.
Here, the accused was acquitted because of an irregularity in the buy-bust
operations. Specifically, the apprehending officer who seized the sachets from the
accused Sorin during the buy-bust operation failed to mark the sachets and,
instead, turned them over unmarked to another police officer. This officer was the
person who marked the sachets of shabu, and who eventually took custody of the
confiscated drugs and delivery to the PDEA.

According to the Supreme Court, the fact that the sachets of drugs were not marked
for inventory in the presence of the apprehending officer who confiscated the drugs
is fatal to the case of the prosecution. “The Court cannot over-emphasize the
significance of marking in illegal drugs cases. The marking of the evidence serves
to separate the marked evidence from the corpus of all other similar or related
evidence from the time they are seized from the accused until they are disposed of
at the end of the criminal proceedings, thus, preventing switching, planting, or
contamination of evidence.”

The same case occurred in People v. Sabdula (G.R. No. 184758, April 21, 2014),
where the accused was also acquitted because of failure of the apprehending
officer to mark the confiscated drugs in the buy-bust operations. The Supreme
Court noted that due to the procedural lapse in the first link of the chain of custody,
serious uncertainty hangs over the identification of the shabu that the prosecution
introduced into evidence.

It is well-settled that in criminal prosecutions involving illegal drugs, the

presentation of the drugs which constitute the corpus delicti of the crime calls for
the necessity of proving with moral certainty that they are the same seized items.
The lack of conclusive identification of the illegal drugs allegedly seized from the
accused strongly militates against a finding of guilt, as in this case. As reasonable
doubt persists on the identity of the drugs allegedly seized from the accused, the
latter's acquittal should come as a matter of course.

 (1) Joint Affidavit of Arrest, (2) Custodial Investigation Report, (3) Photocopy of
the marked money, (4) Brown envelope containing the subject illegal drugs, (5)
Inventory of Property Seized, (6) Laboratory Examination Request, and (7)
Chemistry Report No. D-0518-2002.

they argued that there were irregularities on the preservation of the integrity and
evidentiary value of the illegal items seized from them. The prosecution witnesses
exhibited gross disregard of the procedural safeguards which generated clouds of
doubts as to the identity of the seized items presented in evidence

All the elements of the crime of illegal sale and possession of marijuana. As to the
chain of custody procedure, it insists that the prosecution witnesses were able to
account for the series of events that transpired, from the time the buy-bust
operation was conducted until the time the items were presented in court.

from the testimony of PO2 Corpuz, there was an actual exchange as Dahil took out
from his pocket six (6) sachets containing marijuana, while PO2 Corpuz handled
out the two (2) ₱100.00 marked bills, after they agreed to transact ₱200.00 worth
of the illegal drug.16 The charge of illegal possession of marijuana, was also thus
established by the prosecution.17 

Establish the chain of custody. PO2 Corpuz and SPO1 Licu testified that the said
drugs were marked at the police station. An inventory of the seized items was
made as shown by the Inventory Report of Property Seized, duly signed by
Kagawad Pamintuan. The Request for Laboratory Examination revealed that the
confiscated drugs were the same items submitted to the PNP crime laboratory for
examination. On the other hand, Chemistry Report No. D-0518-2002 showed that
the specimen gave positive results to the test of marijuana. The accused failed to
show that the confiscated marijuana items were tampered with, or switched, before
they were delivered to the crime laboratory for examination
PHILIPPINE NATIONAL POLICE MANUAL PNPM-D-0-2-14 (DO)
http://pro10.pnp.gov.ph/downloads/AIDSOTF_MANUAL.pdf
PNP ANTI-ILLEGAL DRUGS SPECIAL OPERATIONS TASK FORCE CY
2010
REVISED PNP MANUAL ON ANTI-ILLEGAL DRUGS OPERATIONS
AND INVESTIGATION SEPTEMBER 2014

COORDINATION REQUIREMENTS

PNP Units, prior to any anti-illegal drugs operations shall, as far as practicable,
coordinate with the Philippine Drug Enforcement Agency.
2.7 In any case, PNP Anti-Illegal Drugs Units shall coordinate/ inform the PDEA
of anti-illegal drugs operations within 24 hours from the time of the actual custody
of the suspects or seizure of said drugs and substances as well as paraphernalia and
transport equipment used in illegal activities involving illegal drugs and/or
substances and shall regularly update the PDEA on the status of cases involving
said anti-illegal drugs operations (Section 86 (a) IRR RA 9165)

Section 9. Coordination Requirements

a. PNP units, prior to any anti-drug operations shall, as far as practicable,
coordinate with the Philippine Drug Enforcement Agency.
b. In any case, the PNP anti-drug units shall coordinate/inform the PDEA of the
anti-drug operation within 24 hours from the time of the actual custody of the
suspects or seizure of said drugs and substances as well as paraphernalia and
transport equipment used in illegal activities involving such drugs and/or
substances and shall regularly update the PDEA on the status of the cases
involving the said anti-drug operation. (Section 86(a) IRR RA 9165)
c. The word “As far as practicable” as being used in Section 86, IRR, RA 9165,
means that which prior coordination with the PDEA may be done, practiced or
accomplished and which is feasible and possible to be performed. However, it
admits exceptions. The following instances, among others are deemed not
practicable for prior coordination, to wit:
1. In remote places where coordination is not possible;
2. When coordination will compromise the lives of police operatives, informant
and witnesses, involved in anti-drug operation;
3. When coordination will prejudice the apprehension of drug suspects and
confiscation of dangerous drugs and CPECs;
4. When prior coordination will compromise the entire police operation. (Note: In
the above instances, post coordination shall be made in lieu of prior coordination).

Section 10. Reporting Requirements - In every successful anti-drug operation, PNP

SAIDOTG, DAIDSOTG, PAIDSOTG, RAIDSOTG and NOSUs shall submit to
the PNP AIDSOTF and The Directorate for Operations the following reports:
a. Spot Report
b. Development Report
c. After Operation Report
d. Progress Report
Section 11. Planning and Preparation a. As a general rule, all operations must be
preceded by adequate planning and preparation to ensure the successful
prosecution of cases, observance of the human rights of suspects, safety of
operating elements and the security and integrity of seized items/ evidence

e. The team leader must, prior to the actual anti-drug operations, conduct a detailed
briefing to the operating personnel. Charts, photographs, maps, etc., should be used
as necessary. The specific duties and responsibilities of each member must be
clearly discussed.
j. The team leader must also designate an investigator who shall keep and
preserve notes to record the actual conduct of the operation including
valuable information that can be used in the prosecution of the case or in the
conduct of future operations

k. All operating units shall designate a “seizing officer” who shall be responsible
for taking into custody all drug and non-drug evidence during the antidrug
operations to ensure that all these are safe and handled in accordance with Section
21 RA 9165 and its IRR.
Section 12. Conduct of Operation
d. The desk officer shall maintain a record of the events, which includes among
others, jump-off time and date, name of team leader, area/s of operation and
vehicles used. A record book shall be preserved for the purpose and shall form part
of the documents covering the operation.

h. All arrested suspects must be handcuffed. Should there be shortage of handcuffs,

suspects’ hands must be bound by any restraining material. In case of children in
conflict with law (CICL), they shall not be handcuffed unless there is a valid
reason to restrain them.

j. Upon return of the operating personnel to their station, the duty desk officer must
record the time and date of return, name/s of the arrested person/s, and other
significant circumstances that transpired during the operation.

A buy-bust operation is a form of entrapment, in which the violator is caught in

flagrante delicto and the police officers conducting the operation are not only
authorized but duty-bound to apprehend the violator and to search him for anything
that may have been part of or used in the commission of the crime.[16] However,
where there really was no buy-bust operation conducted, it cannot be denied that
the elements for illegal sale of prohibited drugs cannot be duly proved despite the
presumption of regularity in the performance of official duty and the seeming
straightforward testimony in court by the arresting police officers. After all, the
indictment for illegal sale of prohibited drugs will not have a leg to stand on.

This is the situation in the instant case.

People v. Mateo, G.R. No. 179478, July 28, 2008, 560 SCRA 397, 417;
citing People v. Ong, G.R. No. 137348, June 21, 2004, 432 SCRA 470, 484
and People v. Juatan, G.R. No. 104378, August 20, 1996, 260 SCRA 532, 538.

For the prosecution of illegal sale of drugs to prosper, the following elements must
be proved:
(1) the identity of the buyer and seller, the object, and the consideration; and
(2) the delivery of the thing sold and its payment.
 What is material is the proof that the transaction actually took place, coupled with
the presentation before the court of the corpus delicti.

In People v. Doria,[19] the Court laid down the objective test in determining the
credibility of prosecution witnesses regarding the conduct of buy-bust
operations. It is the duty of the prosecution to present a complete picture detailing
the buy-bust operation from the initial contact between the poseur-buyer and the
pusher, the offer to purchase, the promise or payment of the consideration until the
consummation of the sale by the delivery of the illegal drug subject of sale.[20] We
said that [t]he manner by which the initial contact was made, x x x the offer to
purchase the drug, the payment of the buy-bust money, and the delivery of the
illegal drug x x x must be the subject of strict scrutiny by the courts to insure that
law-abiding citizens are not unlawfully induced to commit an offense.[21]

[20]
 Id. at 698.
[21]
 Id. at 698-699; People v. Ong, supra note 16, at 485; People v. De Guzman,
G.R. No. 151205, June 9, 2004, 431 SCRA 516, 523.

No Surveillance Conducted
 
The testimony of PO2 Ibasco on direct examination did not mention an alleged
surveillance conducted by PO2 Ibasco and PO1 Valencia prior to the alleged buy-
bust operation, the corresponding intelligence report, and the written communiqu
with the PDEA. The defense in cross-examination put to task both PO2 Ibasco and
PO1 Valencia concerning these matters, as attested to in the Joint Affidavit of
Apprehension[22] executed by the two police officers on May 30, 2003. PO2 Ibasco
testified that his unit, specifically PO1 Valencia and himself, conducted
surveillance on accused-appellant for a week prior to the buy-bust operation on
May 29, 2003 which, according to him, turned out positive, i.e., accused-appellant
was, indeed, selling shabu.
 
PO2 Ibasco on cross-examination testified, thus:

dispatch order for the surveillance do you have any

see him selling drugs at that time during the surveillance?

dont have any information report?
A: We have, sir. Its in the office. Its with Insp. Villanueva.
These documents specifically the dispatch order, the intelligence report of the
alleged surveillance, and the written communiqu from the PDEA for the conduct of
the surveillance and buy-bust operation were not, however, presented in
court. Evidently, these documents are non-existent, tending to show that there
really was no surveillance and, consequently, no intelligence report about the
surveillance or the averred written communiqu from PDEA attesting to
coordination with said agency.

Thus, there is no basis to say that accused-appellant allegedly sold shabu a week

before he was arrested.

No Buy-Bust Operation
 
But where there are other pieces of evidence putting in doubt the conduct of the
buy-bust operation, these irregularities take on more significance which are, well-
nigh, fatal to the prosecution.

The Court is not unaware that, in some instances, law enforcers resort to the
practice of planting evidence to extract information from or even to harass
civilians.[27] This Court has been issuing cautionary warnings to trial courts to
exercise extra vigilance in trying drug cases, lest an innocent person is made to
suffer the unusually severe penalties for drug offenses.[28]
The defense of frame-up in drug cases requires strong and convincing evidence
because of the presumption that the law enforcement agencies acted in the regular
performance of their official duties.[29] Nonetheless, such a defense may be given
credence when there is sufficient evidence or proof making it to be very plausible
or true. We are of the view that accused-appellants defenses of denial and frame-up
are credible given the circumstances of the case. Indeed, jurisprudence has
established that the defense of denial assumes significance only when the
prosecutions evidence is such that it does not prove guilt beyond reasonable doubt,
[30]
 as in the instant case. At the very least, there is reasonable doubt that there was
a buy-bust operation conducted and that accused-appellant sold the
seized shabu. After all, a criminal conviction rests on the strength of the evidence
of the prosecution and not on the weakness of the defense.[31]

DID NOT PRESENT THE AFFIDAVIT OF THE SECURITY OF JOLLIBEE

WHO GAVE THE HANDCUFFED

Non-Compliance with the Rule on Chain of Custody

 
 
Moreover, the prosecution failed to sufficiently prove the requisite chain of
custody of the seized specimen. Chain of custody means the duly recorded
authorized movements and custody of seized drugs or controlled chemicals from
the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping
to presentation in court for destruction.[36] The CA found an unbroken chain of
custody of the purportedly confiscated shabu specimen. However, the records belie
such conclusion

It is essential that the prohibited drug confiscated or recovered from the suspect is
the very same substance offered in court as exhibit; and that the identity of said
drug be established with the same unwavering exactitude as that requisite to
make a finding of guilt.[38] This, the prosecution failed to do. The prosecution
must offer the testimony of key witnesses to establish a sufficiently complete chain
of custody.[39]
 
As the Court aptly put in People v. Cantalejo:
 
x x x the failure of the police to comply with the procedure in the custody of the
seized drugs raises doubt as to its origins.
 
x x x failure to observe the proper procedure also negates the operation of the
presumption of regularity accorded to police officers. As a general rule, the
testimony of police officers who apprehended the accused is usually accorded full
faith and credit because of the presumption that they have performed their duties
regularly. However, when the performance of their duties is tainted with
irregularities, such presumption is effectively destroyed.
 
While 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.[40]

In sum, considering the multifarious irregularities and non-compliance with the

chain of custody, We cannot but acquit accused-appellant on the ground of
reasonable doubt. The law demands that only proof of guilt beyond reasonable
doubt can justify a verdict of guilt.[41] In all criminal prosecutions, without regard
to the nature of the defense which the accused may raise, the burden of proof
remains at all times upon the prosecution to establish the guilt of the accused
beyond reasonable doubt.[42] As the Court often reiterated, it would be better to set
free ten men who might probably be guilty of the crime charged than to convict
one innocent man for a crime he did not commit.[43]
 
In fine, We repeat what the Court fittingly held in People v. Ong, a case similarly
involving a buy-bust operation, thus:
 
The Constitution mandates that an accused shall be presumed innocent until the
contrary is proven beyond reasonable doubt. While appellants defense engenders
suspicion that he probably perpetrated the crime charged, it is not sufficient for a
conviction that the evidence establishes a strong suspicion or probability of guilt. It
is the burden of the prosecution to overcome the presumption of innocence by
presenting the quantum of evidence required.
 
In the case at bar, the basis of acquittal is reasonable doubt, the evidence for the
prosecution not being sufficient to sustain and prove the guilt of appellants with
moral certainty. By reasonable doubt is not meant that which of possibility may
arise but it is that doubt engendered by an investigation of the whole proof and an
inability, after such an investigation, to let the mind rest easy upon the certainty of
guilt. An acquittal based on reasonable doubt will prosper even though the
appellants innocence may be doubted, for a criminal conviction rests on the
strength of the evidence of the prosecution and not on the weakness of the
evidence of the defense. Suffice it to say, a slightest doubt should be resolved in
favor of the accused.[44]
Whether or not the law enforcement officers substantially complied with the
chain of custody procedure required by R.A. No. 9165.

A buy-bust operation gave rise to the present case. While this kind of operation has
been proven to be an effective way to flush out illegal transactions that are
otherwise conducted covertly and in secrecy, a buy-bust operation has a significant
downside that has not escaped the attention of the framers of the law. It is
susceptible topolice abuse, the most notorious of which is its use as a tool for
extortion.22
he presentation of the dangerous drugs as evidence in court is material if not
indispensable in every prosecution for the illegal sale and possession of dangerous
drugs. As such, the identity of the dangerous drugs should be established beyond
doubt by showing that the items offered in court were the same substances
boughtduring the buy-bust operation. This rigorous requirement, known under
R.A. No. 9165 as the chain of custody, performs the function of ensuring
thatunnecessary doubts concerning the identity of the evidence are removed.23 In
People v. Catalan,24 the Court said:

To discharge its duty of establishing the guilt of the accused beyond reasonable
doubt, therefore, the Prosecution must prove the corpus delicti.That proof is vital to
a judgment of conviction. On the other hand, the Prosecution does not comply with
the indispensable requirement of proving the violation of Section 5 of Republic
Act No. 9165 when the dangerous drugs are missing but also when there are
substantial gapsin the chain of custody of the seized dangerous drugs that raise
doubts about the authenticity of the evidence presented in court.

Although R.A. No. 9165 does not define the meaning of chain of custody, Section
1(b) of Dangerous DrugsBoard Regulation No. 1, Series of 2002, which
implements R.A. No. 9165, explains the said term as follows:

"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.

s a means of ensuring the establishment of the chain of custody, Section 21 (1) of

R.A. No. 9165 specifies that:
(1) The apprehending team having initial custody and control of the drugs shall,
immediately after seizure and confiscation, physically inventory and photographthe
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.
Specifically, Article II, Section 21(a) of the Implementing Rules and Regulations
(IRR)of R.A. No. 9165 enumerates the procedures to be observed by the
apprehending officers toconfirm the chain of custody, to wit:
xxx
(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 strict procedure under Section 21 of R.A. No. 9165 was not complied
with.
Although the prosecution offered in evidence the Inventory of the Property Seized
signed by the arresting officers and Kagawad Pamintuan, the procedures provided
in Section 21 of R.A. No. 9165 were not observed. The said provision requires the
apprehending team, after seizure and confiscation, to immediately (1) conduct a
physically inventory; and (2) 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 DOJ, and any
elected public official who shall be required to sign the copies of the inventory and
be given a copy thereof.
First, the inventory of the property was not immediately conducted after seizure
and confiscation as it was only done at the police station. Notably, Article II,
Section 21(a) of the IRR allows the inventory to be done at the nearest police
station or at the nearest office of the apprehending team whichever is
practicable, in case of warrantless seizures. In this case, however, the
prosecution did not even claim that the PDEA Office Region 3 was the nearest
office from TB Pavilion where the drugs were seized. The prosecution also failed
to give sufficient justification for the delayed conduct of the inventory. PO2
Corpuz testified, to wit:

limsy excusethat they failed to immediately conduct an inventory because they did
not bring with them the material or equipment for the preparation of the
documents. Such explanation is unacceptable considering that they conducted a
surveillance on the target for a couple of weeks.26 They should have been prepared
with their equipment even before the buy-bust operation took place.

buy-bust operation should never be used as a cover for an illegal warrantless

search and arrest.

BOARD REGULATION NO. 1 Series of 2002

SUBJECT: GUIDELINES ON THE CUSTODY AND DISPOSITION OF
SEIZED DANGEROUS DRUGS, CONTROLLED PRECURSORS AND
ESSENTIAL CHEMICALS, AND LABORATORY EQUIPMENT

b. Within the same period, and in conformity with prescribed operational reporting
procedures, the seizing officer/team shall also prepare a report of the
confiscation/seizure, which include particulars of: (i) the time, place and date of
seizure; (ii) the particulars of the person(s) arrested; (iii) the identity of the seizing
officer and all persons present; (iv) the circumstances in which seizure took place;
(v) a description of the vehicle, vessel, place or person searched and the location
where the substance or equipment was found; (vi) a description of packaging, seals
and other identifying features; (vii) a description of quantity, volume and units and
the measurement method employed; (viii) a description of the substance or
equipment found; (ix) a description of any preliminary identification test used and
results (e.g. test kit); (x) all subsequent movements of the substance or chain of
custody; and (xi) any other prescribed matter by PDEA
The prosecution failed to establish that the integrity and evidentiary value of the
seized items were preserved.
Notwithstanding the failure of the prosecution to establish the rigorous
requirements of Section 21 of R.A. No. 9165, jurisprudence dictates that
substantial compliance is sufficient. Failure to strictly comply with the law
does not necessarily render the arrest of the accused illegal or the items seized
or confiscated from him inadmissible.30The issue of non-compliance with the
said section is not of admissibility, but of weight to be given on the
evidence.31 Moreover, Section 21 of the IRR requires "substantial" and not
necessarily "perfect adherence," as long as it can be proven that the integrity and
the evidentiary value of the seized items are preserved as the same would be
utilized in the determination of the guilt or innocence of the accused.32
To ensure that the integrity and the evidentiary value of the seized items are
preserved, the proper chain of custody of the seized items must be shown. The
Court explained in People v. Malillin33 how the chain of custody or movement of
the seized evidence should be maintained and why this must be shown by
evidence, viz:
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 opportunity for someone not in
the chain to have possession of the same.
In People v. Kamad,34 the Court identified the links that the prosecution must
establish in the chain of custody in a buy-bust situation to be as follows: first, the
seizure and marking, ifpracticable, of the illegal drug recovered from the accused
by the apprehending officer; second, the turnover of the illegal drug seized bythe
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 by the forensic chemist to the court.
First link: Marking of the Drugs Recovered from the Accused by the
Apprehending Officer
Crucial in proving the chain of custody is the marking of the seized drugs or other
related items immediately after they have been seized from the accused. "Marking"
means the placing by the apprehending officer or the poseur-buyer of his/her
initials and signature on the items seized. Marking after seizure is the starting point
in the custodial link; hence, it is vital that the seized contraband be immediately
marked because succeeding handlers of the specimens will use the markingsas
reference. The marking of the evidence serves to separate the markedevidence
from the corpus of all other similar or related evidence from the time they are
seized from the accused until they are disposed of at the end of the criminal
proceedings, thus, preventing switching, planting or contamination of evidence.35
It must be noted that marking isnot found in R.A. No. 9165 and is different from
the inventory-taking and photography under Section 21 of the said law. Long
before Congress passed R.A. No. 9165, however, this Court had consistently held
that failure of the authorities to immediately mark the seized drugs would cast
reasonable doubt on the authenticity of the corpus delicti.36
In the present case, PO2 Corpuz and SPO1 Licu claimed that they had placed their
initials on the seized items. They, however, gave little information on how they
actually did the marking. It is clear, nonetheless, that the marking was not
immediately done at the place of seizure, and the markings were only placed at the
police station based on the testimony of PO2 Corpuz, to wit: Q: So, after
recovering all those marijuana bricks and plastic sachets of marijuana and the
marked money from the accused, what else did you do?

Hence, from the place of the seizure to the PDEA Office Region 3, the seized items
were not marked. It could not, therefore, be determined how the unmarked drugs
were handled. The Court must conduct guesswork on how the seized drugs were
transported and who took custody of them while in transit. Evidently, the alteration
of the seized items was a possibility absent their immediate marking thereof.
Still, there are cases whenthe chain of a custody rule is relaxed such as when the
marking of the seized items 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 the accused in
illegal drugs cases.38 Even a less stringent application of the requirement, however,
will not suffice to sustain the conviction of the accused in this case. Aside from the
fact that the police officers did not immediately place their markings on the seized
marijuana upon their arrival at the PDEA Office, there was also no showing that
the markings were made in the presence of the accused.

The team leader must also designate an investigator who shall keep and
preserve notes to record the actual conduct of the operation including valuable
information that can be used in the prosecution of the case or in the conduct of
future operations.

All operating units shall designate a “seizing officer” who shall be responsible for
taking into custody all drug and non-drug evidence during the antidrug operations
to ensure that all these are safe and handled in accordance with Section 21 RA
9165 and its IRR. l. The Team Leader shall submit to PDEA a copy of the case
folder after the filing of the case.

d. The desk officer shall maintain a record of the events, which includes among
others, jump-off time and date, name of team leader, area/s of operation and
vehicles used. A record book shall be preserved for the purpose and shall form part
of the documents covering the operation

i. The team leader must see to it that all pieces of evidence from the suspect/ s or
those found in the area of operation are handled in accordance with Section 6 of
this Manual.
Section 6. Standardization of Forms – To avoid confusion, maintain uniformity,
and preserve the chain of custody of evidence vital to the accomplishment of
antiillegal
drug operation, all pertinent documents shall conform to the standardized
pro-forma forms enumerated in Annex “A” and Annex “B” of this Manual.
Seizing/Inventory Officer - the police officer who is designated to seize and
inventory the evidence from the arrested suspect.

h. All arrested suspects must be handcuffed. Should there be shortage of

handcuffs, suspects’ hands must be bound by any restraining material.
j. Upon return of the operating personnel to their station, the duty desk officer must
record the time and date of return, name/s of the arrested person/s, and other
significant circumstances that transpired during the operation.

Section 13. Handling, Custody and Disposition of Drug Evidence

a. In the handling, custody and disposition of the evidence, the provision of

Section 21, RA 9165 and its IRR shall be strictly observed. 10 Manual on Anti-
Illegal Drugs Operation and Investigation
b. Photographs of the pieces of evidence must be taken upon discovery without
moving or altering its position in the place where it is situated, kept or hidden,
including the process of recording the inventory and the weighing of
dangerous drugs, and if possible under existing conditions, with the registered
weight of the evidence on the scale focused by the camera, in the presence of
persons required, as provided under Section 21, Art II, RA 9165.
c. The seizing officer must mark the evidence with his initials indicating therein
the date, time and place where the evidence was found and seized. The seizing
officer shall secure and preserve the evidence in a suitable evidence bag or in an
appropriate container for further laboratory examinations.
f. In every negation operation, a “seizing officer” shall be designated who shall be
responsible for the inventory and initial custody of all drug and non-drug evidence
during the anti-drug operations. These will later be turned over to the investigation
officer or any member of the apprehending team, as the case may be, up to the
Crime Laboratory for laboratory examination and proper disposition. g.
Cellphones, Computers/laptops or any other electronic equipment or gadgets.

A- Drug Evidence
a. Upon seizure or confiscation of the dangerous drugs or controlled
precursors and/or essential chemicals (CPECs), laboratory equipment, apparatus
and paraphernalia, the operating unit’s seizing officer/ inventory officer must
conduct the physical inventory, markings and photograph the same in the place of
operation in the presence of:
a. The suspect/s or the person/s from whom such items were
confiscated and/or seized or his/her representative or counsel.
b. A representative from the media.
c. A representative from the Department of Justice; and
d. Any elected public official who shall affix their signatures
and who shall be given copies of the inventory.

b. For seized drugs covered by search warrants, the inventory must be conducted in
the place where the search warrant was served. c. In warrantless seizures like buy-
bust operations, the inventory and the taking of photographs should be done at the
nearest police station or office of the apprehending officer or team. However, the
apprehending authority is not precluded from conducting the inventory at the place
where the drugs were seized. d. If the said procedures in the inventory, markings
and taking of photographs of the seized items were not observed, (Section 21, RA
9165), the law enforcers must present an explanation to justify non-observance of
prescribed procedures and “must prove that the integrity and evidentiary value of
the seized items are not tainted.”
inventory receipt of confiscation/ seizure to include but not limited to the
following:
1. Time, date and place of occurrence/seizure.
2. Identity of person/s arrested.
3. Identity of the seizing officer and all persons present.
4. Circumstances in which seizure took place.
5. Description of a vehicle, vessel, place or person searched
where the substance was found.
6. Description of packaging, seals and other identifying features.
7. Description of quantity, volume and units and the
measurement method employed.
8. Description of the substance found.
9. Description of any preliminary identification test
(test kit) used and results.

g. Within 24 hours upon confiscation/ seizure when practicable, all

seized drugs and/ or CPECs shall be submitted to the PNP Crime Laboratory for
examination and proper disposition.
h. All pieces of drug evidence shall be turned over by the seizing officer to the
investigator on case who will subsequently turnover the same to the PNP Crime
Laboratory for examination. Receipts shall be required in every phase of this turn-
over. i. The seizing officer shall accomplish the Chain of Custody Form with the
affixed signatures which shall accompany the evidence turned over to the
investigator-on-case or the Crime Laboratory as the case may be.

B- Non-Drug Evidence
a. All pieces of non-drug evidence shall be photographed, inventoried and
properly marked as required under Section 21, RA 9165:
1. Buy-bust money, if applicable.
2. For motor vehicles, a sticker containing pertinent information
(name of suspects, date and time of arrest, arresting unit, and
arresting officers) shall be attached on area where it is most
visible.
3. For firearms, ammunitions, explosives or other deadly
weapons, tags containing the same information shall be
attached.
4. Smaller pieces of evidence shall be placed inside the evidence
bag on which written are the same data.
5. Cell phones, laptops, computers and other electronic gadgets,
tags containing the necessary description shall be attached.
b. After the conduct of an anti-drug operation, the Investigator-on-Case
shall immediately prepare a detailed report including photographs of all the seized/
confiscated non-drug evidence. As far as practicable, a lawyer from the Legal
Service will be present to ensure that testimonies/information gathered can stand
the scrutiny of law.
c. For seized/ confiscated motor vehicles, a Technical Inspection Report
(TIR) shall be prepared by the Seizing Officer/Investigator-on-Case immediately
after the seizure/confiscation. If possible, the suspect/occupant of the confiscated
evidence shall be present during the conduct of the technical inspection and should
affix his signature on the report.

C- Chain of Custody
a. The seizing officer must preserve the integrity and evidentiary value of
the evidence.
13
Manual on Anti-Illegal Drugs Operation and Investigation
b. The number of persons handling the drug evidence from the time it
was seized/confiscated should be limited to the seizing officer, the investigator-on
case
or any duly authorized member and PNP Crime Laboratory duly authorized
personnel. Non-drug evidence shall be turned-over to the evidence custodian.
c. An acknowledgement receipt shall be issued by the person receiving
the evidence. Such receipt shall form part of the case folder of the transmitting
unit.
d. The seizing officer shall accomplish and sign the chain of custody
form which shall accompany the evidence up to the PNP Crime Laboratory for
examination

g. In warrantless searches and seizures like buy-bust operations, the inventory

and taking of photographs shall be made where the evidence or items were
confiscated to properly preserve the integrity and evidentiary value of the
evidence. In case of failure to do so, the conduct of inventory may be made at the
nearest police station or office of the apprehending officer or team, however, they
must execute a written explanation to justify non-compliance of the prescribed
rules on inventory under Section 21, RA 9165.

h. The Investigator-On-Case in coordination with the seizing officer shall submit

the seized dangerous drugs to the PNP Crime Laboratory for examination and
analysis and the arrested suspects for Physical/Medical examination and drug
testing.
f. The seizing officer shall thereafter conduct the actual physical inventory, place
markings and photograph the evidence in the place of operation in the presence of:
1. The accused or the person/s from whom such items were confiscated and/or
seized or his/her representative or counsel; 2. A representative from the media; 3.
A representative from the Department of Justice; and 4. Any elected public official
(at least Brgy Kagawad) who shall sign, and shall be given copies of the inventory.

Frame-up, denial, or alibi, more particularly when based on the accused’s

testimony alone, as here, is an inherently weak form of defense. As the prosecution
aptly observed and as jurisprudence itself teaches, the defense of denial or frame-
up has been viewed with disfavor for it can easily be concocted and is a common
defense plot in most prosecutions for violations of anti-drug laws. Bare denial of
an accused cannot prevail over the positive assertions of apprehending police
operatives, absent ill motives on the part of the latter to impute such a serious
crime as possession or selling of prohibited drugs.34
The foregoing notwithstanding, appellant is still entitled to an acquittal considering
that certain critical circumstances that had been overlooked below, which, if
properly appreciated, engender moral uncertainty as to his guilt. Nothing less than
evidence of criminal culpability beyond reasonable doubt can overturn the
presumption of innocence. In this regard, the onus of proving the guilt of the
accused lies with the prosecution which must rely on the strength of its own
evidence and not on the weakness of the defense.
In every prosecution for illegal sale of dangerous drugs under Sec. 5, Art. II of RA
9165, the following elements must concur: (1) the identities of the buyer and seller,
object, and consideration; and (2) the delivery of the thing sold and the payment
for it.35 As it were, the dangerous drug itself forms an integral and key part of the
corpus delicti of the offense of possession or sale of prohibited drugs. Withal, it is
essential in the prosecution of drug cases that the identity of the prohibited drug be
established beyond reasonable doubt. This means that on top of the elements of
possession or illegal sale, the fact that the substance illegally sold or possessed is,
in the first instance, the very substance adduced in court must likewise be
established with the same exacting degree of certitude as that required sustaining a
conviction. The chain of custody requirement, as stressed in People v.
Cervantes,36 and other cases, performs this function in that it ensures that
unnecessary doubts respecting the identity of the evidence are minimized if not
altogether removed. People v. Cervantes describes the mechanics of the custodial
chain requirement, thusly:
As a mode 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. In context, this would
ideally include testimony about every link in the chain, from the seizure of the
prohibited drug up to the time it is offered into evidence, in such a way that
everyone 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 it was delivered to the
next link in the chain.37
xxx
The Court has to be sure stressed the need for the strict adherence to the custodial
chain process and explained the reason behind the rules on the proper procedure in
handling of specimen illegal drugs. People v. Obmiranis38readily comes to mind:
The Court certainly cannot reluctantly close its eyes to the possibility of
substitution, alteration or contamination—whether intentional or unintentional—of
narcotic substances at any of the links in the chain of custody thereof especially
because practically such possibility is great where the item of real evidence is
small and is similar in form to other substances to which people are familiar in
their daily lives. x x x
Reasonable safeguards are provided for in our drugs laws to protect the identity
and integrity of narcotic substances and dangerous drugs seized and/or recovered
from drug offenders. Section 21 of R.A. No. 9165 materially requires the
apprehending team having initial custody and control of the drugs to, 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, and any elected public official who shall be
required to sign the copies of the inventory and be given a copy thereof. The same
requirements are also found in Section 2 of its implementing rules as well as in
Section 2 of the Dangerous Drugs Board Regulation No. 1, series of 2002.
(Emphasis supplied.)
In the same case, We stressed why evidence of an unbroken chain of custody of the
seized illegal drugs is necessary:
Be that as it may, although testimony about a perfect chain does not always have to
be the standard because it is almost always impossible to obtain, an unbroken chain
of custody indeed becomes indispensable and essential when the item of real
evidence is a narcotic substance. A unique characteristic of narcotic substances
such as shabu is that they are not distinctive and are not readily identifiable as in
fact they are subject to scientific analysis to determine their composition and
nature. And because they cannot be readily and properly distinguished visually
from other substances of the same physical and/or chemical nature, they are
susceptible to alteration, tampering, contamination, substitution and exchange—
whether the alteration, tampering, contamination, substitution and exchange be
inadvertent or otherwise not. It is by reason of this distinctive quality that the
condition of the exhibit at the time of testing and trial is critical. Hence, in
authenticating narcotic specimens, a standard more stringent than that applied to
objects which are readily identifiable must be applied—a more exacting standard
that entails a chain of custody of the item with sufficient completeness if only to
render it improbable that the original item has either been exchanged with another
or contaminated or tampered with.39
Appellant contends that the police officers failed to follow the proper procedure
laid down in Sec. 21 of RA 9165, in relation to the chain of custody rule. He
argues:
The prosecution failed to supply all the links in the chain of custody rule. SPO2
Marinda testified that he supposedly turned-over the confiscated plastic sachets to
the investigator SPO1 Pama. However, the latter was never presented to testify on
this matter. The prosecution also failed to testify on what happened to the subject
specimens after these were turned-over to Pama and who delivered these to the
forensic chemist. Thus, there is an unexplained gap in the chain of custody of the
dangerous drug, from the time the same were supposedly seized by SPO2 Marinda
from accused-appellant, until these were turned-over to the crime laboratory.
It also appears that the prosecution’s evidence failed to reveal the identity of the
person who had the custody and safekeeping of the drugs after its examination and
pending its presentation in court. This unexplained link also created doubt as to the
integrity of the evidence. This should have been considered as a serious source of
doubt favorable to the accused-appellant.40
Appellant’s contention is very much well-taken. The Court particularly notes that
of the individuals who came into direct contact with or had physical possession of
the sachets of shabu allegedly seized from appellant, only SPO1 Marinda testified
for the specific purpose of identifying the evidence. But his testimony failed to
sufficiently demonstrate an unbroken chain, for he himself admits that at the police
station he transferred the possession of the specimen to an investigator at the MPD
DAID, one SPO1 Pama to be precise. The following is the extent of SPO1
Marinda’s testimony regarding his knowledge of the whereabouts of the specimen:

People vs Posing GR No 196973 31, 2013

In cases of illegal sale and illegal possession of dangerous drugs, the dangerous
drug seized from the accused constitutes the corpus delicti of the offense. Thus, it
is of utmost importance that the integrity and identity of the seized drugs must be
shown to have been duly preserved. "The chain of custody rule performs this
function as it ensures that unnecessary doubts concerning the identity of the
evidence are removed.

As this Court held in People v. Berdadero,[27] the foregoing provision, as well as

the Internal Rules and Regulations implementing the same, is silent as to the
consequences of the failure on the part of the law enforcers to seek the authority of
the PDEA prior to conducting a buy-bust operation x x x. [T]his silence cannot be
interpreted as a legislative intent to make an arrest without the participation of
PDEA illegal or evidence obtained pursuant to such an arrest inadmissible.[28]

FAILURE TO COMPLY WITH THE PRE-COORDINATION

REQUIREMENT WITH THE PHILIPPINE DRUG ENFORCEMENT
AGENCY (PDEA)

Section 9 (a) of the same manual provides for the Coordination

Requirements with PDEA which provides that:
 a. PNP units, prior to any anti-drug operations shall, as far as
practicable, coordinate with the Philippine Drug Enforcement
Agency.

Section 9 (c) however, provides for the exception:

c. The word “As far as practicable” as being used in Section 86,

IRR, RA 9165, means that prior coordination with the PDEA may be
done, practiced or accomplished and which is feasible and possible to
be performed. However, it admits exceptions. The following
instances, among others are deemed not practicable for prior
coordination, to wit:

1. In remote places where coordination is not possible;

2. When coordination will compromise the lives of

police operatives, informant and witnesses, involved in
anti-drug operation;

3. When coordination will prejudice the apprehension

of drug suspects and confiscation of dangerous drugs
and CPECs; 7 Manual on Anti-Illegal Drugs
Operation and Investigation

4. When prior coordination will compromise the

entire police operation.

(Note: In the above instances, post coordination shall be made in lieu

of prior coordination).

Nowhere, in the exceptions above-cited will justify the PNP to

dispense with the prior coordination requirement as specified in its manual.
First, Jollibee Drive Thru is located at Osmena Extension. This
location is not considered a remote place. It is situated on a strategic place over the
down town of Tagum City.
Second, that the accused is not considered a high profile drug seller
and therefore it cannot be gainsaid that it will compromise the lives of the police
operatives, informant as well as the witnesses, involved in anti-drug operation.
 Third, that the incident of buy-bust operation was pre-planned
bolstered by the testimony of PO3 Omana that a prior meeting with civilian
informant was made on August 17, 2018, a day prior to August 18, 2013, therefore,
there is sufficient time to coordinate with the PDEA. It cannot be concluded,
however, that in doing the coordination with just that span of time, will prejudice
the apprehension of drug suspects and confiscation of dangerous drugs and
compromise the entire police operation.

In the light of the foregoing, it can be deduced therefrom that the entrapment
operation falls short of the Pre-Coordination requirement required by the rules. The
Coordination Form that the prosecution had submitted is not the Pre-Coordination

THE PEOPLE OF THE PHILIPPINES,

Plaintiff-Appellee,
–     versus    –
ZAIDA KAMAD y AMBING,
Accused-Appellant

(a)  The first link in the chain of custody

We observe from the testimony of SPO1 Benares that SPO2 Sanchez’ testimony
lacks specifics on how the seized shabu was handled immediately after the
accused-appellant’s arrest.  Although the records show that SPO2 Sanchez testified
that he actually seized the shabu when he arrested the accused-appellant, he never
disclosed the identity of the person/s who had custody and possession of
the shabu after its seizure, nor that he retained possession of the shabu from the
place of the arrest until they reached the police station.
SPO2 Sanchez also failed to state the time and place as well as the identity of the
person/s who made the markings on the two (2) plastic sachets containing the
recovered shabu seized from the accused-appellant and Leo on October 16, 2002.
(b) The second link in the chain of custody
We also observe that SPO2 Sanchez’ testimony regarding the post-arrest police
investigation failed to provide particulars on whether the shabu was turned over to
the investigator.  The records only identify the name of the investigator as one
SPO1 Nuestro before whom SPO2 Sanchez and PO3 Maulit executed a Joint
Affidavit of Arrest dated October 17, 2002.[31] Thus, a big gap exists on who had
custody and possession of the shabushabu was stored, preserved, labeled and
recorded from the time of its seizure up to its receipt by the forensic
laboratory. prior to, during and immediately after the police investigation, and how
the
(c)  The third link in the chain of custody
The third link in the chain is represented by two (2) pieces of documentary
evidence adduced by the prosecution consisting of the letter-request dated October
17, 2002[32] of Police Superintendent Mariano F. Fegarido as Chief of the
Southern Police District Drug Enforcement Group and the Physical Science Report
No. D-1502-02 prepared by Engr. Richard Allan B. Mangalip as the forensic
chemist.[33]
These documents reveal that the recovered plastic sachets of shabu bearing the
markings “ES-1-161002” and “ES-2-161002” were sent to the forensic laboratory
sealed in one (1) small brown envelope bearing unidentified signatures. On the
same day, the PNP Crime Laboratory received this letter-request along with the
submitted specimens. The specimens were then subjected to qualitative
examination which yielded positive for methylamphetamine hydrochloride.
These pieces of evidence notably fail to identify the person who personally brought
the seized shabu to the PNP Crime Laboratory. They also fail to clearly identify
the person who received the shabu at the forensic laboratory pursuant to the letter-
request dated October 17, 2002, and who exercised custody and possession of
the shabu after it was examined and before it was presented in court. Neither was
there any evidence adduced showing how the seized shabu was handled, stored
and safeguarded pending its presentation in court.
(d) The fourth link in the chain of custody
The fourth link presents a very strange and unusual twist in the prosecution’s
evidence in this case. Although the forensic chemist was presented in court, we
find that his offered testimony related to a shabu specimen other than that seized
in the buy-bust operation of October 16, 2002.  Specifically, his testimony
pertained to shabu seized by the police on October 12, 2002. This is borne by the
following exchanges:
FISCAL UY:  The testimony of the witness is being offered to prove . . . that he
is the one who cause [sic] the examination of the physical evidence subject of
this case containing with white crystalline substance placed inside the plastic
sachet weighing 0.20 grams and 0.30 grams with markings of EBC and EBC-1
that I reduced findings after the examination conducted.
xxxx
Q        And with the cause of the performance of your duties, were you able to
receive a letter request relevant to this case specifically a drug test request,
dated October 12, 2002 from PS/Insp. Wilfredo Calderon. Do you have the letter
request with you?
A        Yes, sir.
Q        The witness presented to this representation the letter request dated October
12, 2002 for purposes of identification, respectfully request that it be marked in
evidence as Exhibit A. In this Exhibit A Mr. Officer, were you able to receive the
evidence submitted specifically a small brown stapled wire envelope with
signature containing with white crystalline substance inside and with
markings EBC- 12/10/02 and EBC-1 12/10/02. After you received this specimen
what action did you take or do?
A        Upon receiving, I read and understand the content of the letter request after
which, I stamped and marked the letter request and then record it on the logbook
and after recording it on the logbook, I performed the test for determination of the
presence of dangerous drug on the specimen.
xxxx
Q        Now, after those tests conducted what was the result of the examination?
A        It gives positive result for Methamphetamine Hydrochloride or otherwise
known as shabu, a dangerous drug.
xxxx
Q        At this juncture your Honor, the witness handed with this representation a
brown envelope with markings D-1487-02, and the signature and the date 12
October 02, now Mr. Witness tell us who placed these markings on this brown
envelope?
A        I am the one who personally made the markings, sir.
Q        And in the face of this brown envelope there is a printed name PO1 Edwin
Plopinio and the signature and the date 12 October 2002. Do you know who placed
who placed those markings?
A        I have no idea.
Q        At this juncture your Honor, this representation proceeded to open the
brown envelope. May I respectfully request that this brown envelope be marked in
evidence as Exhibit B. And inside this brown envelope are three pieces of plastic
sachets inside which are white crystalline substance with markings EPC 12
October 02 and EPC-1 12 October 02. May I respectfully request that these plastic
sachets with white substance inside be marked in evidence as Exhibit B-1 and B-2. 
And in these plastic sachets with white crystalline inside is a masking tape with the
signature and letters are RAM, do you know who placed those letters?
A        I  am the one who placed that markings sir.
Q        And what RAM stands for?
A        That stands for my name Richard Allan Mangalip sir.
Q        You mentioned that you reduced your findings in writing, do you have the
official finding with you?
A        Yes, sir.
Q        At this juncture the witness handed to this representation the physical
science report no. D-1487-2 for purposes of identification respectfully request that
this specimen be marked in evidence as Exhibit C.  And in this Exhibit C, there is a
signature above the typewritten name Engineer Richard Allan B. Mangalip, do you
whose signature is this Mr. Witness? [34] [Emphasis supplied]
A        That is my signature sir.
Q        Respectfully request that the signature appearing in Exhibit C be marked in
evidence as Exhibit C-1.  You stated earlier that you cause the weight of the white
crystalline substance in this plastic sachet, what the weights of this white
crystalline substance?
A        For the specimen A, it is .20 grams and the specimen B, it is .30 gram.
Q        May I respectfully request that this weight indicated in this physical science
report now mark in evidence as Exhibit C-2.  I have no further questions to the
witness your Honor.
xxxx
Aside from the different dates of seizure, we note that the shabu identified and
presented in court as evidence through the testimony of the forensic chemist,
showed characteristics distinct from the shabu from the buy-bust sale of October
16, 2002:
First, there were different markings made on the plastic sachets of
the shabu recovered on October 12, 2002. As testified to, one plastic sachet
of shabu was marked, “EBC 12 October 02,” while the other plastic sachet
of shabu was marked, “EBC-1 12 October 02”;[35]
Second, there was a different sealed brown envelope used where a printed name
and signature of one “PO1 Edwin Plopino” and the date “12 October 2002” were
written; [36]
Third, the examination of the shabu by the PNP Crime Laboratory was made
pursuant to a different letter-request for examination dated October 12, 2002
written by one P/Insp.  Wilfredo Calderon;[37] and
Fourth, the results of the shabu testified to by the forensic chemist in court was
contained in a different forensic laboratory report known as Physical Science
Report No. D-1487-2.[38]
We highlight these characteristics because they are different from the documentary
evidence the prosecution formally offered[39] consisting of the letter-request dated
October 17, 2002[40] and the Physical Science Report No. D-1502-02.[41] The
testimonies of SPO2 Sanchez and PO3 Maulit as well as the submitted
documentary evidence referred to the plastic sachets of shabu through their
markings of “ES-1-161002” and “ES-2-161002.”[42]
From all these, we find it obvious that some mistake must have been made in the
presentation of the prosecution’s evidence.  The prosecution, however, left the
discrepancies fully unexplained. To reiterate, the forensic chemist testified to a
specimen dated October 12, 2002, or one secured way before the buy-bust of
October 16, 2002, but marked as evidence documents relating to the specimen of
October 16, 2002.  Strangely, even the defense disregarded the discrepancies.  In
his comment on the offer of evidence, the defense simply stated, among others, by
way of stipulation, that “the forensic chemical officer only conducted a qualitative
examination of the specimen he examined and not the quantitative
examination.”[43] Coming immediately after the offer of evidence that mentioned
the plastic sachets containing white crystalline substances with markings “ES-1
16/10/02” and “ES-2 16/10/02,” and the Physical Science Report No. D-1502-02,
[44] the defense was clearly sleeping on its feet when it reacted to the
prosecution’s offer of evidence.
But the defense was not alone in glossing over the discrepancies between the
testimony for the prosecution and the offered evidence, as both the RTC and CA
also failed to notice the glaring flaws in the prosecution’s evidence. Apparently,
because the parties did not point out these discrepancies while the appellate court
did not closely review the records of the proceedings, the discrepancies were not
taken into account in the decision now under review.
These observations bring us full circle to our opening statement under the Court’s
ruling on the kind and extent of review that an appellate court undertakes in a
criminal case; the appeal opens the whole case for review, with the appellate court
charged with the duty to cite and appreciate the errors it may find in the appealed
judgment, whether these errors are assigned or unassigned.  This is one such
instance where we are duty bound to rectify errors that, although unnoticed below
and unassigned by the parties, are clearly reflected in the records of the case.
The Conclusion
Given the flagrant procedural lapses the police committed in handling the
seized shabu and the obvious evidentiary gaps in the chain of its custody, a
presumption of regularity in the performance of duties cannot be made in this
case.  A presumption of regularity in the performance of official duty is made in
the context of an existing rule of law or statute authorizing the performance of an
act or duty or prescribing a procedure in the performance thereof.  The
presumption applies when nothing in the record suggests that the law enforcers
deviated from the standard conduct of official duty required by law; where the
official act is irregular on its face, the presumption cannot arise.[45] In light of the
flagrant lapses we noted, the lower courts were obviously wrong when they relied
on the presumption of regularity in the performance of official duty.
We rule, too, that the discrepancy in the prosecution evidence on the identity of the
seized and examined shabu and that formally offered in court cannot but lead to
serious doubts regarding the origins of the shabu presented in court.  This
discrepancy and the gap in the chain of custody immediately affect proof of
the corpus delicti without which the accused must be acquitted.
From the constitutional law point of view, the prosecution’s failure to establish
with moral certainty all the elements of the crime and to identify the accused as the
perpetrator signify that it failed to overturn the constitutional presumption of
innocence that every accused enjoys in a criminal prosecution.  When this happens,
as in this case, the courts need not even consider the case for the defense in
deciding the case; a ruling for acquittal must forthwith issue.
WHEREFORE, premises considered, we hereby REVERSE and SET
ASIDE the March 28, 2006 decision of the Court of Appeals in CA-G.R. CR-H.C.
No. 00505 affirming the decision of conviction dated October 27, 2004 of the
Regional Trial Court, Branch 259, Parañaque City in Criminal Case Nos. 02-1236-
7 for illegal sale of shabu under Section 5, Article II of Republic Act No. 9165. 
Accused-appellant ZAIDA KAMAD y AMBING is hereby
declared ACQUITTED and ordered immediately RELEASED from detention,
unless she is confined for any other lawful cause.
The Director of the Bureau of Corrections is DIRECTED to IMPLEMENT this
Decision and to report to this Court the action taken hereon within five (5) days
from receipt.