Republic of the 

Philippines
REGIONAL TRIAL COURT
12th JUDICIAL REGION
BRANCH 15
COTABATO CITY

People of the Philippines,

Plaintiff,

 
-versus-                                                           Criminal Case No. xxx
                                                            

FOR: VIOLATION OF
SECTION 5 OF
R.A. 9165

AMINA MINA “AMINA” WAKAWAKA and

NORJANA HANNAH “NORJANA” MONTANA,
Defendant.
x------------------x

MOTION TO DISMISS

        Defendant, by his undersigned attorney, respectfully moves that the

complaint be dismissed on the following ground(s):

Sec. 1, Rule 16, Rules of Court.

(a) That a condition precedent for filing the claim has not been
complied with.

ARGUMENTS

(A) Incomplete attendance as to the witnesses required to be

present during the whole operation. After securing the area and
seizure was made, the conduct of markings and inventory were
witnessed by Hon. Cliff Anthony Santos (Barangay Kagawad) and Mr.
Rey Dalal (Media Representative).

In this regard, Section 21, Article II of RA 9165 requires that:

(1) the seized items be inventoried and photographed immediately

after seizure or confiscation;
 (2) that the physical inventory and photographing must be done in
the presence of: (a) the accused or his/her representative or
counsel, (b) an elected public official, (c) a representative from
the media, and (d) a representative from the Department of
Justice (DOJ), all of whom shall be required to sign the copies of
the inventory and be given a copy of the same.

Two of the required witnesses mentioned above were present during the
marking, photographing and conduct of the inventory of the seized items.
None of the DOJ representatives is present during the operation. Thus, the
buy bust team failed to comply with the mandatory requirements (or failed
to secure the number of witnesses that must be present in the crime scene)
under sec. 21, Art. II, R.A. 9165.

(B) The team did not contact any elected public official,
representative from the Media and representative from the
Department of Justice (DOJ) to join the conduct of operation
(particularly upon or during the confiscation or arrest).

In People v. Tomawis, the Court explained on the purpose of the law in

mandating the presence of the required witnesses not only during the
markings and inventory but more importantly at the time and place of the
arrest (the moment the arrest took place). It is at this point in which the
presence of the three witnesses is most needed, as it is their presence at the
time of seizure and confiscation that would belie any doubt as to the source,
identity, and integrity of the seized drug.

(C) Assertions of IO1 Reggata O. Wrangler (Arresting Officer) and

IO1 Christopher V. Columbus (Poseur-Buyer) in relation to the
markings being put in the seized drug evidence are inconsistent.

When asked about the markings, the Arresting Officer told IO3 Albus
W. Dumbledore (Investigator) that the seized drug evidence was marked
with ROW 5/1/2021 while the Poseur-Buyer told the same investigator that it
was marked with CVC 5/1/21, both with signatures on it.

(D) The drugs must be transferred to PNP Crime Laboratory within

24 hours after seizure, markings, photographs and inventory.

In awarding the exemption, justifiable or reasonable grounds on

transmitting the seized drugs to PDEA-BARMM Forensic Laboratory must be
alleged by the officers.

---

The number of witness required for the conduct of the buy bust
operation was not met. The buy bust team failed to offer any
justifiable explanation for its failure to strictly comply with the
requirements of Section 21, Article II of R.A. 9165. Evidences
presented by the prosecution in relation to the chain of custody and
inventory of the seized drugs and paraphernalia are weak.
Statements on the markings by the Arresting Officer and Poseur-
Buyer on their respective Judicial Affidavit are conflicting or
inconsistent.

WHEREFORE, it is respectfully prayed that the complaint be dismissed.

        Other just and equitable reliefs are also prayed for.

        Cotabato City, 9 May 2021.

                                    
                                                                    
Atty. Enrique Mari B. Gil
                                                                      
Counsel for Defendant