REPUBLIC OF THE PHILIPPINES

REGIONAL TRIAL COURT THIRD

JUDICIAL REGION
Cabanatuan City, Branch 23

People of the Philippines,

Plaintiff,

-versus- Criminal Case No. 32293-AF

For: Violation of Section 11, RA 9165
GENDEL ALAMON Accused.
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DEMURRER TO EVIDENCE

Accused, thru the undersigned, unto this Honorable Court, respectfully

states that;

STATEMENT OF THE CASE

Accused Gendel Alamon is charged with violating Section 11 RA 9165

and Republic Act 10591, otherwise known as the Illegal Possession of Firearms
Law. With the prosecution resting its case and the subsequent granting of the
motion for leave of court to file demurrer to evidence by the accused, here is the
Demurrer to Evidence filed by the accused Gendel Alamon praying for the
dismissal of the case filed against him due to insufficiency of evidence.

The grounds relied upon by the accused are as follows;

I. There was no proof that the Accused Signed the Inventory of

the Allegedly Seized Drugs; There was Likewise no proof that

the

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 Accused was Present in the Crime Scene During the Time of

The Inventory;

The requirements of paragraph 1, Section 21, Article II of RA 9165

Section 21, Article II of RA 9165 outlines the procedure to be followed by a

buy- bust team in the seizure, initial custody, and handling of confiscated illegal

drugs and/or paraphernalia. RA 9165 was amended by RA 1064022 which imposed

less stringent requirements in the procedure. The amendment was approved on

July 15, 2014. As the alleged crime in this case was committed on August 21, 2008,

the original version of Section 21 is applicable:

SEC. 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered

Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and

Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. -

The PDEA shall take charge and have custody of all dangerous drugs, plant sources

of dangerous drugs, controlled precursors and essential chemicals, as well as

instruments/paraphernalia and/or laboratory equipment so confiscated, seized

and/or surrendered, for proper disposition in the following manner:

(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

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 (DOJ), and any elected public official who shall be required to sign the copies of

the inventory and be given a copy thereof[.]

A perusal of the inventory of sized items would easily reveal that the

accused, while supposedly not resisting the arrest when the same was

made, failed to sign the supposed inventory of seized items, which

according to the prosecution, was made before the presence of the

witnesses such as an elected official, a representative of the media, as well

as the accused himself. In other words, while the accused was supposedly

there in that exact moment when an inventory was being conducted,

curiously, the arresting officers failed to have the accused sign the said

inventory.

Worse, there was no explanation offered by the prosecution for their

failure to do so. Did the accused refuse to sign? Was it deliberately

unsigned? Sadly, there is no way to answer this question. What is clear is

that the prosecution failed to justify the defect which is crucial to this case.

1. The initial custody requirements must be done immediately after seizure

or confiscation;

2. The physical inventory and photographing must be done in the presence of:

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 a. the accused or his representative or counsel;

b. a representative from the media;

c. a representative from the DOJ; and

d. any elected public official.

3. In the evidence presented, it was never shown by the arresting team the

presence of the accused Gendel Alamon in the scene of the crime. His signature

was likewise noticeably absent in the inventory of seized articles. In fine, an

important element in the chain of custody rule is missing; THE PRESENCE

OF THE ACCUSED DURING THE TIME OF THE INVENTORY. And

what is the easiest way to rpove this? By presenting the signature of the accused

showing that he signed or refused to sign the inventory in his presence

immediately after his arrest.

II. The Required “Three Witnesses Were Not Immediately Present After the Buy

Bust”;

The Supreme Court in the recent case of People vs Tanes (GR 240596, April 3,

2019), penned by Associate Justice Alfredo Benjamin Caguioa, elucidates on the

importance of the three witnesses during a buy-bust operation, viz:

“The presence of the three witnesses must be secured not only during the inventory,

but more importantly at the time of the warrantless arrest. It is at this point in

which

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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. If the buy-bust operation is legitimately conducted, the

presence of the insulating witnesses would also controvert the usual defense of

frame-up as the witnesses would be able to testify that the buy-bust operation and

inventory of the seized drugs were done in their presence in accordance with Section

21 of RA 9165.

The practice of police operatives of not bringing to the intended place of arrest the

three witnesses, when they could easily do so — and “calling them in” to the place

of inventory to witness the inventory and photographing of the drugs only after

the buy-bust operation has already been finished — does not achieve the purpose of

the law in having these witnesses prevent or insulate against the planting of drugs.

To restate, the presence of the three witnesses at the time of seizure and

confiscation of the drugs must be secured and complied with at the time of

the warrantless arrest; such that they are required to be at or near the intended

place of the arrest so that they can be ready to witness the inventory and

photographing of the seized and confiscated drugs “immediately after seizure and

confiscation.”

In light of the quoted jurisprudence, the rule now requires the presence of

representative from the Justice department, the media and an elected public official

at the time of the warrantless arrest. Otherwise, in their absence, doubt as to the

culpability of the accused will arise that will not make the evidence of guilt strong.

In fine, the first link had been incipiently broken not once but thrice in view

of the omission to comply with first, the required marking at the place of arrest
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presence of the appellant during such marking, second, the inventory and third, the

photograph of the confiscated dangerous drug.

The fourth link refers to the turnover and submission of the dangerous drug from

the forensic chemist to the court.

THE SIGNATURES OF THE FORENSIC CHEMIST IN THE CHAIN OF

CUSTODY FORM, AS WELL AS THE RESULT OF HIS FINDINGS, ARE

DIFFERENT;

In drug-related cases, it is of paramount necessity that the forensic chemist testifies

on the details pertaining to the handling and analysis of the dangerous drug

submitted for examination i.e. when and from whom the dangerous drug was

received; what identifying labels or other things accompanied it; description of the

specimen; and the container it was in. Further, the forensic chemist must also

identify the name and method of analysis used in determining the chemical

composition of the subject specimen.

This is why it highly suspicious for the forensic chemist to use two signatures

in accepting the evidence, as well as signing the results of his findings. This very

important pieces of evidence determines the integrity of the whole case of the

prosecution. And yet, the signatures of the forensic chemist were visibly different,

first, from allegedly accepting the evidence from the investigator to finally signing

the results of his findings. To remove any doubt, the forensic witness should have

simply used the same signature, instead, he chose to more questionable path and

provided different signatures in two very crucial documents.

Section 21 Article II of RA 9165, as amended by RA 10640, reads:

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Section 21. Custody and Disposition of Confiscated, Seized, and/or

Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs.

Controlled Precursors and Essential Chemicals,

Instruments/Paraphernalia and/or Laboratory Equipment. - The PDEA

shall take charge and have custody of all dangerous drugs, x x x so

confiscated, seized and/or surrendered, for proper disposition in the

following manner:

(i) The apprehending team having initial custody and control of the

dangerous drugs, x x x shall, immediately after seizure and confiscation,

conduct a physical inventory of the seized items and photograph the same

in the presence of the accused or the persons from whom such items were

confiscated and/or seized, or his/her representative or counsel, with an

elected public official and a representative of the National Prosecution

Service oor

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media who shall be required to sign the copies of the inventory and be given

a copy thereof; Provided, That the physical inventory and photograph shall

be conducted at the place where the search warrant is served; or at the

nearest police station or at the nearest office of the apprehending

officer/team, whichever is practicable, in case of warrantless seizures:

Provided, finally, That noncompliance of these requirements under

justifiable grounds, as long as the integrity and the evidentiary value of the

seized items are properly preserved by the apprehending officer/team, shall

not render void and invalid such seizures and custody over said items.

(2) Within twenty-four (24) hour upon confiscation/seizure of dangerous

drugs, x xx the same shall be submitted to the PDEA Forensic Laboratory

for a qualitative and quantitative examination;

(3) A certification of the forensic laboratory examination results x x x shall

be issued immediately upon the receipt of the subject item/s: Provided,

That when the volume of dangerous drugs, x x x does not allow the

completion of testing within the time frame, a partial laboratory

examination report shall be provisionally issued stating therein the

quantities of dangerous drugs still to be examined by the forensic

laboratory: Provided, however, That a final certification shall be issued

immediately upon completion of the said examination and certification;

The Court has consistently ruled that each link in the chain of custody rule must

be sufficiently proved by the prosecution and examined with careful scrutiny by the

court. The prosecution has the burden to show "every link in the chain, from

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moment the dangerous drug was seized from the accused until the time it is offered

in court as evidence. Thus, in case the police officers fail to strictly comply with the

rules of procedure, they must be able to "explain the reasons behind the procedural

lapses, and that the integrity and value of the seized evidence had nonetheless been

preserved x x x because the Court cannot presume what these grounds are or that

they even exist." In other words, taking into consideration the difficulty of complete

compliance with the chain of custody requirement, the Court has considered

substantial compliance sufficient "as long as the integrity and evidentiary value of

the seized items are properly preserved by the apprehending police officers."

In the recent case of People v. Supat, the Court made the following

pronouncements:

Section 21(1) of RA 9165 plainly requires the apprehending team to conduct

a physical inventory of the seized items and the photographing of the same

immediately after seizure and confiscation. Further, the inventory must be

done in the presence of the accused, his counsel, or representative, a

representative of the DOJ, the media, and an elected public official, who shall

be required to sign the copies of the inventory and be given a copy thereof.

The phrase "immediately after seizure and confiscation" means that the physical

inventory and photographing of the drugs were intended by the law to be made

immediately after, or at the place of apprehension. And only if this is not

practicable that the IRR allows the inventory and photographing at the nearest

police station or the nearest office of the apprehending officer/team. This also

means that the three required witnesses should already be physically present at
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 the time of apprehension

- a requirement that can easily be complied with by the buy-bust team considering
that the buy-bust operation is, by its nature, a planned activity. In other words, the
buy-bust team has enough time and opportunity to bring with them said witnesses.

In addition, while the IRR permits alternative locations for conducting the

inventory and photographing the seized narcotics, the requirement that three

witnesses be physically present at or near the place of apprehension is not waived.

The reason is straightforward: it is at the time of arrest - or at the time of the

drugs' "seizure and confiscation" - that the presence of the three witnesses is most

crucial, as their presence would protect against the police practice of planting

evidence. Again, without the signature of the accused, or the presence of the three

witnesses during the actual by bust, there will always be doubt in the operation

conducted by the arresting officers. And in this case, such doubt should always be

favorable to the accused.

PRAYER

WHEREFORE, it is respectfully prayed that the Demurrer to Evidence Filed by

the Accused Gendel Alamon be GRANTED and that the case filed against him be
dismissed due to insufficiency of evidence ;
BY:

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Atty. VICENTE JAIME M. TOPACIO

No_33-B E Rodriguez Sr. Avenue Quezon City

Roll No. 59418

IBP No. 199540/1-18-22/Quezon city

PTR No.2532135/1-12-22/Quezon City

MCLE No. VI- 0024896/April 17, 2019

Tel No. (7)791-95-64

attyvj_ topacio@yahoo.com

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 Explanation:

Service of this motion was made thru Electronic Service due to lack of manpower

to effect personal delivery.

Copy furnished:

Office of the Provincial Prosecutor Cabanatuan City, Nueva Ecija

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