DRUG CASES PRINCIPLES AND UPDATES

BASIC PRINCIPLES IN DRUG PROSECUTION

1. 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 prohibited or regulated drug or the corpus delicti^.

(2) For illegal possession of dangerous drugs, the following elements must be established:

"[1] the accused was in possession of dangerous drugs;

            [2] such possession was not authorized by law; and

[3] the accused was freely and consciously aware of being in possession of dangerous drugs."

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."

CHAIN OF CUSTODY

(3) To establish an unbroken chain of custody of the seized drugs in violation of Section 21, Article II of RA 9165.

The pertinent provisions of Section 21 state:

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, 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 (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof;

Similarly, the Implementing Rules and Regulations (IRR) further elaborate on the proper procedure to be followed in Section 21(a) of RA 9165. It states:

(a) The apprehending office/team having initial custody and control of the drugs shall, inm1ediately 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 requirement" 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.

In Mallillin v. People,¹³ the Court explained the chain of custody rule as follows:

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 clain1s 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.

The first link in the chain is the marking of the seized drug. We have previously held that:

x x x Marking after seizure is the starting point in the custodial link, thus it is vital that the seized contraband are immediately marked because succeeding handlers of the specimen will use the markings as reference. 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, obviating switching, 'planting,' or contamination of evidence.¹⁴

It is important that the seized drugs be immediately marked, if possible, as soon as they are seized from the accused.

Furthermore, in People v. Gonzales,¹⁵ the Court explained that:

The first stage in the chain of custody rule is the marking of the dangerous drugs or related items. Marking, which is the affixing on the dangerous drugs or related items by the apprehending officer or the poseur-buyer of his initials or signature or other identifying signs, should be made in the presence of the apprehended violator immediately upon arrest. The importance of the prompt marking cannot be denied, because succeeding handlers of dangerous drugs or related items will use the marking as reference. Also, the marking operates to set apart as evidence the dangerous drugs or related items from other material from the moment they are confiscated until they are disposed of at the close of the criminal proceedings, thereby forestalling switching, planting or contamination of evidence. In short, the marking immediately upon confiscation or recovery of the dangerous drugs or related items is indispensable in the preservation of their integrity and evidentiary value

AMENDMENT OF Sec. 21, OF R.A. 9160 by R.A. 10640 ON July 15, 2014

Section 21 of Article II of RA 9165, prior to its amendment by RA 10640  on July 15, 2014, which is the law applicable at the time of the commission of the offense, clearly requires the apprehending team to mark, conduct a physical inventory, and to photograph the seized item in the presence of the accused or his representative or counsel, with an elected public official and a representative of DOJ and the media. The law mandates that the insulating witnesses be present during the marking, the actual inventory and the taking of photographs of the seized items to deter the common practice of planting evidence. While strict compliance may not always be possible, the police officers, nonetheless, should give justifiable reasons for noncompliance.

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REPUBLIC ACT NO. 10640

AN ACT TO FURTHER STRENGTHEN THE ANTI-DRUG CAMPAIGN OF THE GOVERNMENT, AMENDING FOR THE PURPOSE SECTION 21 OF REPUBLIC ACT NO. 9165, OTHERWISE KNOWN AS THE "COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002"

Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled:

Section 1. Section 21 of Republic Act No. 9165, otherwise known as the "Comprehensive Dangerous Drugs Act of 2002", is hereby amended to read as follows:

"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 dangerous drugs, controlled precursors and essential chemicals, instruments/paraphernalia and/or laboratory equipment shall, immediately after seizure and confiscation, conduct a physical inventory of the seized items and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, with an elected public official and a representative of the National Prosecution Service or the media who shall be required to sign the copies of the inventory and be given a copy thereof: Provided, That the physical inventory and photograph shall be conducted at the place where the search warrant is served; or at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable, in case of warrantless seizures: Provided, finally, That noncompliance 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.

"x x x

"(3) A certification of the forensic laboratory examination results, which shall be done by the forensic laboratory examiner, shall be issued immediately upon the receipt of the subject item/s: Provided, That when the volume of dangerous drugs, plant sources of dangerous drugs, and controlled precursors and essential chemicals 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;

"x x x."

 x x x

It bears emphasis that the rule that strict adherence to the mandatory requirements of Section 21(1) of R.A. No. 9165, as amended, and its IRR may be excused as long as the integrity and the evidentiary value of the confiscated items are properly preserved applies not just on arrest and/or seizure by reason of a legitimate buy-bust operation but also on those lawfully made in air or sea port, detention cell or national penitentiary, checkpoint, moving vehicle, local or international package/parcel/mail, or those by virtue of a consented search, stop and frisk (Terry search), search incident to a lawful arrest, or application of plain view doctrine where time is of the essence and the arrest and/or seizure is/are not planned, arranged or scheduled in advance.

POSSIBLE EXCUSES FOR NON-COMPLIANCE WITH THE THREE WITNESS RULE

It must be alleged and proved that the -presence of the three witnesses to the physical inventory and photograph of the illegal drug seized was not 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 official themselves were involved in the punishable acts sought to be apprehended;

(4) earnest efforts to secure the presence of a DOJ or media representative and an elected public official within the period required under Article 125 of the Revised Penal Code prove futile through no fault of the arresting officers, who face the threat of being charged with arbitrary detention; or

 (5) time constraints and urgency of the anti-drug operations, which often rely on tips of confidential assets, prevented the law enforcers from obtaining the presence of the required witnesses even before the offenders could escape.

LATEST DECIDED CASES ON DRUGS : UPDATES

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

G.R. No. 234156,  vs. EMMANUEL OLIVA y JORJIL,

BERNARDO BARANGOT y PILAIS and MARK ANGELO MANALASTAS y GAPASIN, Promulgated:Jan. 7, 2019

In this case, the absence of a representative of the National Prosecution Service or the media during the inventory of the seized items was not justifiably explained by the prosecution. A review of the Transcript of Stenographic Notes does not yield any testimony from the arresting officers as to the reason why there was no representative from the DOJ or the media. The only one present to witness the inventory and the marking was an elected official, Barangay Captain Evelyn Villamor. Neither was there any testimony to show that any attempt was made to secure the presence of the required witness.

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PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, G.R. No. 233747 - versus -  NILA MALANA y SAMBOLLEDO, Accused-Appellant. 

Promulgated: 0 5 Dec. 2018

Moreover, courts cannot rule, as the RTC and the CA did in this case, that the presence of the three elected officials in the inventory (as opposed to the media person and the DOJ official) constitutes substantial compliance with the requirements of RA 9165. Section 21, RA 9165 was unequivocal in its requirement: that the inventory must be done "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." The law is plain and clear. Verba legis non est recedendum, or from the words of a statute there should be no departure. 38

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PEOPLE OF THE G.R. No. 225741 PHILIPPINES, Plaintiff-Appellee, - versus - , BRANDON DELA CRUZ and JAMES FRANCIS BAUTISTA, Accused-Appellants.  

Promulgated: December 5, 2018

After an examination of the records, the Court finds that the prosecution failed to comply with the above-described procedure since the inventory and photography of the seized item were not conducted in the presence of a media representative. As evinced by the Inventory of Seized Properties/Items,  only Allas (an elected public official) and Gaffuy (a representative from the DOJ) were present to witness these activities. Although the prosecution in its Pre-Trial Brief averred that " [ n] o media representatives were present despite efforts x x x to secure their presence,"41 nothing else on record appears to substantiate the same. Indeed, this general averment, without more, cannot be accepted as a proper justification to excuse non-compliance with the law. As earlier discussed, prevailing jurisprudence requires the prosecution to account for the absence of any of the required witnesses by presenting a justifiable reason therefor or, at the very least, by showing that genuine and sufficient efforts were exerted by the apprehending officers to secure their presence. Clearly, these standards were not observed in this case. Thus, in view of this unjustified deviation from the chain of custody rule, the Court is constrained to conclude that the integrity and evidentiary value of the item purportedly seized from accused-appellants were compromised, which consequently warrants their acquittal.

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PEOPLE OF THE G.R. No. 225747 PHILIPPINES, Plaintiff-Appellee, - versus - JEFFERSON MEDINA y CRUZ, Accused-Appellant, December 5, 2018

As earlier stated, it is incumbent upon the prosecution to account for these witnesses' absence by presenting a justifiable reason therefor or, at the very least, by showing that genuine and sufficient efforts were exerted by the apprehending officers to secure their presence. Here, while P03 Rana requested the presence of a media representative and an elected public official to witness the conduct of inventory and photography of the seized item, he admitted that only a media representative arrived, without any justification as to the absence of the two (2) other required witnesses, i.e., an elected public official and a DOJ representative. In fact, it may even be implied from P03 Rana's aforesaid statement that he did not even bother to secure the presence of a DOJ representative during the conduct of inventory and photography. In view of this unjustified deviation from the chain of custody rule, the Court is therefore constrained to conclude that the integrity and evidentiary value of the item purportedly seized from Medina was compromised, which consequently warrants his acquittal.

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PEOPLE OF THE G.R. No. 225741 PHILIPPINES, versus - BRANDON DELA CRUZ and JAMES FRANCIS BAUTISTA, Accused-Appellants. Dec. 5, 2018

In cases for Illegal Sale and/or Illegal Possession of Dangerous Drugs under RA 9165,  it is essential that the identity of the dangerous drug be established with moral certainty, considering that the dangerous drug itself forms an integral part of the corpus delicti of the crime.  Failing to prove the integrity of the corpus delicti renders the evidence for the State insufficient to prove the guilt of the accused beyond reasonable doubt and, hence, warrants an acquittal.  To establish the identity of the dangerous drug with moral certainty, the prosecution must be able to account for each link of the chain of custody from the moment the drugs are seized up to their presentation in court . The elements of Illegal Sale of Dangerous Drugs under Section 5, Article II of RA 9165 are: .

(a) the identity of the buyer and the seller, the object, and the consideration; and

(b) the delivery of the thing sold and the payment;

while the elements of Illegal Possession of Dangerous Drugs under Section 11, Article II of RA 9165 are:

(a) the accused was in possession of an item or object identified as a prohibited drug;

(b) such possession was not authorized by law; and

 (c) the accused freely and consciously possessed the said drug.

As part of the chain of custody procedure, the law requires, inter alia, that the marking, physical inventory, and photography of the seized items be conducted immediately after seizure and confiscation of the same. In this regard, case law recognizes that "marking upon immediate confiscation contemplates even marking at the nearest police station or office of the apprehending team." 20 Hence, the failure to immediately mark the confiscated items at the place of arrest neither renders them inadmissible in evidence nor impairs the integrity of the seized drugs, as the conduct of marking at the nearest police station or office of the apprehending team is sufficient compliance with the rules on chain of custody.

 The law further requires that the said inventory and photography be done in the presence of the accused or the person from whom the items were seized, or his representative or counsel, as well as certain required witnesses, namely:

(a)                 if prior to the amendment of RA 9165 by RA 10640,  a representative from the media AND the DOJ, and any elected public official;

(b)                             or ( if after the amendment of RA 9165 by RA 10640, an elected public official and a representative of the National Prosecution Service OR the media.  The law requires the presence of these witnesses primarily "to ensure the establishment of the chain of custody and remove any suspicion of switching, planting, or contamination of evidence."

 As a general rule, compliance with the chain of custody procedure is strictly enjoined as the same has been regarded "not merely as a procedural technicality but as a matter of substantive law." This is because "[t]he law has been crafted by Congress as safety precautions to address potential police abuses, especially considering that the penalty imposed may be life imprisonment.

Xx x x

 the prosecution satisfactorily proves that:

(a) there is a justifiable ground for noncompliance; and

(b)  the integrity and evidentiary value of the seized items are properly preserved.

The foregoing is based on the saving clause found in Section 21 (a),30 Article II of the Implementing Rules and Regulations (IRR) of RA 9165, which was later adopted into the text of RA 10640.31 It should, however, be emphasized that for the saving clause to apply, the prosecution must duly explain the reasons behind the procedural lapses, 32 and that the justifiable ground for non-compliance must be proven as a fact, because the Court cannot presume what these grounds are or that they even exist.33 Anent the witness requirement, non-compliance may be permitted if the prosecution proves that the apprehending officers exerted genuine and sufficient efforts to secure the presence of such witnesses, albeit they eventually failed to appear. While the earnestness of these efforts must be examined on a case-to-case basis, the overarching objective is for the Court to be convinced that the failure to comply was reasonable under the given circumstances. 34 Thus, mere statements of unavailability, absent actual serious attempts to contact the required witnesses, are unacceptable as justified grounds for non-compliance.35 These considerations arise from the fact that police officers 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 fully well that they would have to strictly comply with the chain of custody rule.36 Notably, the Court, in People v. Miranda, 37 issued a definitive reminder to prosecutors when dealing with drugs cases. It implored that "[since] the [procedural] requirements are clearly set forth in the law, the State retains the positive duty to account for any lapses in the chain of custody of the drugs/items seized from the accused, regardless of whether or not the defense raises the same in the proceedings a quo; otherwise, it risks the possibility of having a conviction overturned on grounds that go into the evidence's integrity and evidentiary value, albeit the same are raised only for

 After an examination of the records, the Court finds that the prosecution failed to comply with the above-described procedure since the inventory and photography of the seized item were not conducted in the presence of a media representative. As evinced by the Inventory of Seized Properties/Items,  only Allas (an elected public official) and Gaffuy (a representative from the DOJ) were present to witness these activities. Although the prosecution in its Pre-Trial Brief averred that " [ n] o media representatives were present despite efforts x x x to secure their presence," nothing else on record appears to substantiate the same. Indeed, this general averment, without more, cannot be accepted as a proper justification to excuse non-compliance with the law.

As earlier discussed, prevailing jurisprudence requires the prosecution to account for the absence of any of the required witnesses by presenting a justifiable reason therefor or, at the very least, by showing that genuine and sufficient efforts were exerted by the apprehending officers to secure their presence. Clearly, these standards were not observed in this case. Thus, in view of this unjustified deviation from the chain of custody rule, the Court is constrained to conclude that the integrity and evidentiary value of the item purportedly seized from accused-appellants were compromised, which consequently warrants their acquittal.

X x x x x

The law further requires that the said inventory and photography be done in the presence of the accused or the person from whom the items were seized, or his representative or counsel, as well as certain required witnesses, namely: (a) if prior to the amendment of RA 9165 by RA 10640, 22 a representative from the media AND the DOJ, and any elected public official; 23 or ( b) if after the amendment of RA 9165 by RA 10640, an elected public official and a representative of the National Prosecution Service OR the media. 24 The law requires the presence of these witnesses primarily "to ensure the establishment of the chain of custody and remove any suspicion of switching, planting, or contamination of evidence."25

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After an examination of the records, the Court finds that the prosecution failed to comply with the above-described procedure since the inventory and photography of the seized item were not conducted in the presence of a media representative. As evinced by the Inventory of Seized Properties/Items, 39 only Allas (an elected public official) and Gaffuy (a representative from the DOJ) were present to witness these activities. Although the prosecution in its Pre-Trial Briefl0 averred that " [ n] o media representatives were present despite efforts x x x to secure their presence,"41 nothing else on record appears to substantiate the same. Indeed, this general averment, without more, cannot be accepted as a proper justification to excuse non-compliance with the law. As earlier discussed, prevailing jurisprudence requires the prosecution to account for the absence of any of the required witnesses by presenting a justifiable reason therefor or, at the very least, by showing that genuine and sufficient efforts were exerted by the apprehending officers to secure their presence. Clearly, these standards were not observed in this case. Thus, in view of this unjustified deviation from the chain of custody rule, the Court is constrained to conclude that the integrity and evidentiary value of the item purportedly seized from accused-appellants were compromised, which consequently warrants their acquittal.

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PEOPLE  - versus -  JEFFERSON MEDINA y CRUZ, Accused-Appellant. A. REYES, JR., and CARANDANG, JJ. Dec. 5, 2018

As earlier stated, it is incumbent upon the prosecution to account for these witnesses' absence by presenting a justifiable reason therefor or, at the very least, by showing that genuine and sufficient efforts were exerted by the apprehending officers to secure their presence. Here, while P03 Rana requested the presence of a media representative and an elected public official to witness the conduct of inventory and photography of the seized item, he admitted that only a media representative arrived, without any justification as to the absence of the two (2) other required witnesses, i.e., an elected public official and a DOJ representative. In fact, it may even be implied from P03 Rana's aforesaid statement that he did not even bother to secure the presence of a DOJ representative during the conduct of inventory and photography. In view of this unjustified deviation from the chain of custody rule, the Court is therefore constrained to conclude that the integrity and evidentiary value of the item purportedly seized from Medina was compromised, which consequently warrants his acquittal.

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PEOPLE OF THE PHILIPPINES, G.R. No. 227021 - versus -  CHRISTOPHER ILAGAN y BANA Promulgated: alias "WENG", Accused-Appellant. 0 5 DEC 2018

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 buy-bust 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 addition, the saving clause does not apply to this case. Section 21 of the IRR of RA 9165 provides 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." For this provision to be effective, however, the prosecution must (1) recognize any lapses on the part of the police officers and (2) be able to justify the same.40 Breaches of the procedure contained in Section 21 committed by the police officers, left unacknowledged and unexplained by the State, militate against a finding of guilt beyond reasonable doubt against the accused as the integrity and evidentiary value of the corpus delicti had been compromised. 41 Here, none of the requirements for the saving clause to be triggered is present. First, the prosecution did not concede that there were lapses in the conduct of the buy-bust operation. Second, the prosecution failed to provide justifiable grounds for the apprehending team's deviation from the rules laid down in Section 21 of RA 9165.

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PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, - versus - CESAR DELA CRUZ y LIBONAO ALIAS SESI of ZONE 3, MACANA YA, APARRI, CAGAYAN, G.R. No. 234151 5 DEC 2018

In the present case, the buy-bust team failed to strictly comply with the mandatory requirements under Section 21, par. 1 of RA 9165. First, the arresting officers failed to mark and photograph the seized illegal drug at the place of arrest. Moreover, none of the three required witnesses was present at the time of seizure and apprehension. The Barangay Officials were only "called-in" at the police station.

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The presence of the witnesses from the DOJ, media, and from public elective office is necessary to protect against the possibility of planting, contamination, or loss of the seized drug. Using the language of the Court in People vs. Mendoza,36 without the insulating presence of the representative from the media or the DOJ and any elected public official during the seizure and marking of the drugs, the evils of switching, "planting" or contamination of the evidence that had tainted the buy-busts conducted under the regime of RA No. 6425 (Dangerous Drugs Act of 1972) again reared their ugly heads as to negate the integrity and credibility of the seizure and confiscation of the subject sachet that was evidence of the corpus delicti, and thus adversely affected the trustworthiness of the incrimination of the accused. 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 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 frameup 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."37 Lastly, the buy-bust team failed to offer any explanation for their failure to strictly comply with the requirements of Section 21. When 102 Molina was asked by the Court why there was no media representative present at the time of the conduct of the inventory and photographing of the seized items, she merely answered that it was late in the night already. This explanation is not sufficient to justify the police operatives' non-compliance with Section 21. Moreover, the barangay officials were merely "called-in" to the police station after the arrest. Time and again, the Court has held that 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.

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PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, -versus - JAYSON TORIO y PARAGAS@ "BABALU," Accused-Appellant. GR. No. 225780 DEC 3 2018

RA 9165 requires that the marking, physical inventory, and taking of photograph of the seized items be conducted immediately after seizure and confiscation of the same. The said law further requires that the physical inventory and taking of photograph of the seized items be done in the presence of the accused or the person from whom the items were seized, or his representative or counsel, as well as certain required witnesses, namely: (a) if prior to the amendment of RA 9165 by RA 10640, 16 any elected public official, a representative from the media AND the Department of Justice (DOJ); 17 or (b) if after the amendment of RA 9165 by RA 10640, any elected public official and a representative from either the National Prosecution Service OR the media. 18 In People v. Macapundag, 19 the Court held that "the procedure in Section 21 of RA 9165 is a matter of substantive law, and cannot be brushed aside as a simple procedural technicality; or worse, ignored as an impediment to the conviction of illegal drug suspects." While this rule is not without exceptions, it is incumbent upon the prosecution to satisfactorily prove that (a) there is justifiable ground for non-compliance with the chain of custody rule; and (b) the integrity and evidentiary value of the seized items are properly preserved.2 ° For the saving clause to apply, the prosecution must duly explain the reasons behind the procedural lapses.~ 14 Reyes v. Court of Appeals, 686 Phil. 137, 148 (2012). 15 People v. Viterbo, 739 Phil. 593, 601 (2014). 16 AN ACT TO FURTHER STRENGTHEN THE ANTI-DRUG CAMPAIGN OF THE GOVERNMENT, AMENDING FOR THE PURPOSE SECTION 21 OF REPUBLIC ACT NO. 9165, OTHERWISE KNOWN AS THE 'COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002'," approved July 15, 2014. 17 Section 21 (1) and (2) Article II of RA 9165 and its Implementing Rules and Regulations. 18 Section21,Article II ofRA9165, as amended by RA 10640. 19 GR. No. 225965, March 13, 2017, 820 SCRA204, 215. 20 Section 21 (a), Article II of the Implementing Rules and Regulations of RA 9165 ::;tates: "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" 21 People v. Almorfe, 631 Phil. 51, 60 (2010). Decision 8 G.R. No. 225780 Moreover, non-compliance with the three-witness rule may be excused provided the prosecution proves that the arresting officers exerted genuine efforts to secure the presence of such witnesses, albeit they eventually failed to appear. · In this case, since the buy-bust operation against appellant was conducted in 2012, or prior to the enactment of RA 10640 in 2014, the physical inventory and taking of photograph of the seized items must be witnessed by the following persons: (a) any elected public official; (b) a DOJ representative; and ( c) a media representative. However, while SPO 1 De los Santos marked the seized items in the presence of Kagawad Cuesta and Kagawad Disini, the prosecution failed to establish that the physical inventory and taking of photograph were made in the presence of the appellant or his representative, as well as representatives from the DOJ and media. In fact, the members of the buy-bust team deliberately did not invite members of the media to avoid leakage of the impending operation.22 Thus, it is clear that the arresting officers did not comply with the rule requiring the presence of representatives from both the DOJ and the media. In view of the foregoing, the Court is constrained to acquit the appellant for failure of the prosecution to provide a justifiable reason for the non-compliance with the chain of custody rule thereby creating doubt as to the integrity and evidentiary value of the seized drugs.

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PEOPLE OF THE PHILIPPINES,  versus - EDWIN CABEZUDO y RIEZA, G.R. No. 232357 , Nov. 28, 2018

In this case, clear from the afore-quoted testimonies is the fact that while the inventory was conducted at the place of the apprehension, it was conducted only in the presence of the barangav official. To repeat, the representatives from the media and the DOJ were only "called-in" to sign the inventory receipt at the barangay hall. Parenthetically, even the place where the other witnesses were "called-in" was improper, for the rules require the inventory to be conducted at the place of the arrest or, if impracticable, at the nearest police station.

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As the Court en banc held in the recent case of People v. Lim: It must be alleged and proved that the presence of the three witnesses to the physical inventory and photograph of the illegal drug seized was not 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 official themselves were involved in the punishable acts sought to be apprehended;

(4) earnest efforts to secure the presence of a DOJ or media representative and an elected public official within the period required under Article 125 of the Revised Penal Code prove futile through no fault of the arresting officers, who face the threat of being charged with arbitrary detention; or

(5) time constraints and urgency of the anti-drug operations, which often rely on tips of confidential assets, prevented the law enforcers from obtaining the presence of the required witnesses even before the off enders could escape.  In People v. Umipang, the Court dealt with the same issue where the police officers involved did not show any genuine effort to secure the attendance of the required witness before the buy-bust operation was executed. In the said case, the Court held: Indeed, the absence of these representatives during the physical inventory and the marking of the seized items does not per se render the confiscated items inadmissible in evidence. However, we take note that, in this case, the SAID-SOTF did not even attempt to contact the barangay chairperson or any member of the barangay council. There is no indication that they contacted other elected public officials. Neither do the records show whether the police officers tried to get in touch with any DOJ representative. Nor does the SAID-SOTF adduce any justifiable reason for failing to do so - especially considering that it had sufficient time from the moment it received information about the activities of the accused until the time of his arrest. Thus, we find that there was no genuine and sufficient effort on the part of the apprehending police officers to look for the said representatives pursuant to Section 21(1) of R.A. 9165. A sheer statement that representatives were unavailable - without so much as an explanation on whether serious attempts were employed to look for other representatives, given the circumstances - is to be regarded as a flimsy excuse. We stress that it is the prosecution who has the positive duty to establish that earnest efforts were employed in contacting the representatives enumerated under Section 21(1) of R.A. 9165, or that there was a justifiable ground for failing to do so. The prosecution did not present any other witness to offer a version different from the foregoing. In a similar way, there was no explanation offered as to why none of the three required witnesses was present in the buy-bust operation conducted against Cabezudo, and why only one was present in the conduct of the inventory.

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PEOPLE OF THE PHILIPPINES,  -versus - FATIMA TUMANGONG y DIAZ,  G.R. No. 227015 , November 26, 2018.

Independently of the gap in the chain of custody of the seized specimen which is already fatal to the prosecution's case, the Court likewise observes that neither photograph nor inventory of the seized item had been made in the presence of an elected public official, a representative of the DOJ and of the media. Section 21 of Article II of RA 9165, prior to its amendment by RA 10640  on July 15, 2014, which is the law applicable at the time of the commission of the offense, clearly requires the apprehending team to mark, conduct a physical inventory, and to photograph the seized item in the presence of the accused or his representative or counsel, with an elected public official and a representative of DOJ and the media. The law mandates that the insulating witnesses be present during the marking, the actual inventory and the taking of photographs of the seized items to deter the common practice of planting evidence. While strict compliance may not always be possible, the police officers, nonetheless, should give justifiable reasons for noncompliance. Regrettably, in the instant case, no justifiable reason had been proffered for this fatal omission. The explanation of P03 Briones that no photographs were taken because he had no camera at the time is a lame one and will not hold. More than that, there was no showing that there was any effort to procure the presence of a representative of media, when no barangay official came to the place of arrest and after they were declined by the DOJ. Law enforcers should be mindful of the procedures required in the seizure, handling and safekeeping of confiscated drugs; otherwise, there will be wastage of efforts and resources in the apprehension and prosecution of violators of our drug laws.  Accordingly, the breaches of procedure committed by the police officers in this case, militate against a finding of guilt beyond reasonable doubt against appellant as the integrity and evidentiary value of the corpus delicti had been compromised.47 In People v. De Guzman y Danzil,  the Court held that the failure to observe the proper procedure negates the operation of the presumption of regularity accorded to police officers. As a general rule, the testimonies of the police officers who apprehended the accused are accorded full faith and credit because of the presumption that they performed their duties regularly. But when the performance of their duties is tainted with failure to comply with the procedure and guidelines prescribed, the presumption is effectively destroyed. Finally, we reiterate what we said in People v. Caiz that courts are reminded to exercise a higher level of scrutiny when deciding cases involving miniscule amounts of dangerous drugs. There should be stricter compliance with the rule on the chain of custody when the amount of the dangerous drug is minute due to the possibility that the seized item could be tampered.

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PEOPLE OF THE PHILIPPINES,  G.R. No. 212192 - versus -  METOKUR ABDULA y MAMA Promulgated: @"TOKAY," "MIKE," November 21, 2018

Moreover, the records do not indicate that a representative of the DOJ and a member of the media were present with the elected official, Barangay Chair Pomperada, during the marking and inventory of the seized items. Also, the prosecution offered no explanation as to why the team failed to comply with the explicit requirements in Sec. 21 of R.A. No. 9165 pertaining to required buy-bust witnesses.

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The presence of irregularity in carrying out the statutorily mandated procedure in the handling of dangerous drugs during buybust operations automatically destroys the presumption of regularity in the performance of duty. In effect, the burden is shifted to the prosecution to justify through evidence the procedural lapses committed by law enforcers in the custodial handling of the seized dangerous drugs. Consequently, the prosecution's failure to justify such lapses entitles the accused to an acquittal based on reasonable doubt.

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PEOPLE OF THE PHILIPPINES, -versus -  Fernando Balles,G.R. No. 226143  Nov. 21,2018

Thus, to show an unbroken chain of custody, the following links must be established by the prosecution: first, the seizure and marking, if practicable, of the illegal drug recovered from the accused by the apprehending officer; second, the turnover of the illegal drug seized by the 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 from the forensic chemist to the court.41 In this case, we find that the prosecution failed to establish the first link in the chain of custody. As previously discussed, there was a failure to mark the drugs immediately after they were allegedly seized from appellants. The seized items were only marked at the police station after first taking a detour to the hospital for appellants' physical examination. During that length of time, said items remained unmarked and easily susceptible to tampering, alteration or substitution. At this juncture, we deem it necessary to reiterate that the marking of the seized dangerous drugs is the first and most crucial step in proving an unbroken chain of custody in drug-related prosecutions, as it is "the starting point in the custodial link that succeeding handlers of the evidence will use as a reference point."42 "Also, the marking of the evidence serves to separate the marked evidence from the corpus of all other similar or related evidence, thus preventing the switching, "planting" or contamination of evidence, "43 whether by accident or otherwise. Unfortunately, the failure of the arresting officers to immediately mark the seized drugs raises reasonable doubt on the authenticity of the corpus  delicti and suffices to rebut the presumption of regularity in the performance of official duties. 44 Finally, we note the serious evidentiary gaps in the second, third and fourth links in the chain of custody over the seized dangerous drugs. Based on the records, the seized evidence was turned over by P02 Jimenez to PO 1 Casupli at the police station. 45 In this regard, the prosecution failed to disclose the identities of: (a) the person who had retained custody of the seized items after they were turned over by P02 Jimenez; (b) the person who turned over the items to P/Insp. Mariano (the forensic chemist); and (c) the person who had custody thereof after they were examined by the forensic chemist and before they were presented in court. The totality of these circumstances -the failure of the arresting officers to immediately mark the seized drugs after confiscation, to conduct a physical inventory thereof and to photograph the same in the presence of appellants or their representatives, a representative of the media and the DOJ, and any elected official, and the prosecution's failure to disclose the identities of the persons who had custody of said items after they were turned over by P02 Jimenez - broke the chain of custody and tainted the integrity of the seized shabu ultimately presented as evidence before the trial court. Given the prosecution's failure to prove the indispensable element of corpus delicti, appellants must necessarily be acquitted on the ground of reasonable doubt.

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PEOPLE, Plaintiff-Appellee, -versus JOSEPH ESPERA y BANNANO G.R. No. NOV 21,2018

The record shows that 101 Sumalag immediately put the markings "JAS 09-02-1 O" on the seized heat-sealed, transparent plastic sachet at the scene and in the presence of appellant.49 Appellant was thereafter brought to the PDEA office for the taking of inventory and photographs of the seized items, which were witnessed by representatives from the media and the DOJ and an elected public official. 101 Sumalag, who had retained custody over the heat-sealed, transparent plastic sachet from the time of confiscation, 50 personally delivered said plastic sachet together with the letter-request for laboratory examination to PSI Tuazon at the PNP Regional Crime Laboratory.51 After the laboratory examination, PSI Tuazon marked and sealed the subject specimen and turned it over to the evidence custodian. 52 Clearly, the prosecution's evidence sufficiently established an unbroken chain of custody over the seized sachet of shabu from the entrapment team to the crime laboratory, to the evidence custodian for safe-keeping, up to the time it was offered in evidence before the court. All told, we affirm appellant's conviction of the offense charged. The penalty for the unauthorized sale of dangerous drugs under Section 5, Article II of RA 9165, regardless of the quantity and purity, is life imprisonment to death and a fine ranging from P500,000.00 to Pl 0,000,000.00. However, given the enactment of RA 9346, only life imprisonment and a fine may be imposed upon appellant. Thus, we find that the penalty of life imprisonment and payment of fine in the amount of P500,000.00 is within the range provided by law.

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PEOPLE OF THE PHILIPPINES- versus - MONICA JIMENEZ y DELGADO, G.R. No. 230721, October 15, 2018

In this case, it is undeniable that during the conduct ·of physical inventory and photograph of the seized items, there were no representatives from the media and the DOJ, and there was also no elected public official to witness the said inventory. As shown in the Certificate of Invent~ry, and through the testimony of SPO 1 Zamora, aside from the latter and P03 Enrile, there were only two members of DAPCO who signed the inventory and who were not even present during the buy-bust operation

The records are also bereft of any indication as to the reason why the witnesses required under the law were dispensed with. In People v. Romy Lim,25 this Court held that the presence of the three witnesses to the physical inventory and photograph must be alleged and proved, thus: 23 24 25 It must be alleged and proved that the presence of the three witnesses to the physical inventory and photograph of the illegal drug seized was not 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 official themselves were involved in the punishable acts sought to be apprehended; ( 4) earnest efforts to secure the presence of DOJ or media representative and elected public official within the period required under Article 125 of the Revised Penal Could prove futile through no fault of the arresting officers, who face the threat of being charged with arbitrary detention; or (5) time constraints and urgency of the antidrug operations, which often rely on tips of confidential assets, prevented the law enforcers from obtaining the presence of the required witnesses even before the offenders could escape. Earnest effort to secure the attendance of the necessary witnesses must be proven. People v. Ramos 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 RA 9165 must be adduced. In People v. Umipang, the Court held that the prosecution must show that earnest efforts were employed in contacting the representatives enumerated under the law for "a sheer statement that representatives were unavailable without so much as an explanation on whether serious attempts were employed to look for other representatives, given the circumstances 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 considerations arise from the fact that police officers 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 buybust operation and consequently, make the necessary arrangements beforehand knowing full well that they would have to strictly comply with the set procedure prescribed in Section 21 of RA 9165. As such, police officers are· compelled not only to state reasons for their non-compliance, but must in fact, also convince the Court that they exerted earnest efforts to comply with the mandated procedure, and that under the given circumstances; their actions were reasonable. ·

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PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, G.R. No. 227707 -versus - JEROME PASCUA y AGOTO : a.k.a. "OGIE," Promulgated: OCT 0 8 2018

Simply put, under prevailing jurisprudence, in case the presence of the necessary witnesses was not obtained, the prosecution must allege and prove not only the reasons for their absence, but also the fact that earnest efforts were made to secure their attendance. Here, the prosecution failed to prove both. Under RA 9165, the law prevailing at that time, the physical inventory and photography must be witnessed by three necessary witnesses. In this case, P02 Sulmerin conducted an inventory of the seized items in the presence of appellant, Manilyn, media person Curameng, and Chief Tanod Bugaoisan, who, as aptly pointed out by Justice Bernabe, was not even an elected public official. There was also no DOJ representative present at the time. Thus, strictly speaking, there was only one valid witness, media person Curanmeng, who signed the Receipt of Properties/ Article Seized. 58 The Court has carefully reviewed the records and found that no explanation was also offered by the prosecution to explain the absence of the DOJ representative and an elected public official, nor did it show that earnest efforts were exerted to secure the presence of the same. In view of the foregoing, the Court is constrained to reverse the conviction of the appellant due to the failure of the prosecution to provide a justifiable reason for the non-compliance with the Chain of Custody Rule, which creates doubt as to the integrity and evidentiary value of the seized plastic sachet of shabu.

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PEOPLE OF THE PHILIPPINES versus Y ASSER ABBAS ASJALI, Defendant-Appellant. Promulgated: SEP O 3 2018

There is dearth of evidence in the case at bar that the buy-bust team complied with the prescribed procedure for handling the alleged illegal drugs from accused-appellant. Per the prosecution's evidence, the Zamboanga City Police conducted a buy-bust operation against accused-appellant; in the course of said operation, P02 Seril bought a packet of shabu from accused-appellant for Pl00.00, while SPOl Jacinto seized from accused-appellant's possession, during body search, two more sachets of shabu and the marked Pl00.00-bill paid by P02 Seril; the apprehending team brought accused-appellant to the police station, where P02 Seril and SPOl Jacinto turned over the sachets of shabu seized from accused-appellant to P/Insp. Tubo, the investigator-incharge; and P/Insp. Tubo marked the sachets with his initials. However, the prosecution's evidence failed to establish that the buybust team complied with the directives under Republic Act No. 9165 and its IRR, as well as relevant jurisprudence, viz.:

(1) That the buy-bust team marked the three sachets of shabu from accused-appellant in the latter's presence immediately upon arrest;

(2) That the buy-bust team conducted a physical inventory and took photographs of the three sachets of shabu from accused-appellant (a) immediately at ·the place of the arrest or subsequently at the ·police station and (b) ill .the presence of accused-appellant or his representative or counsel, representatives from the media and the DOJ, and an elected public official; and

(3) That the buy-bust team prepared a certificate of inventory or inventory receipt and had the same signed by accused-appellant or his representative or counsel, the representatives from the media and the DOJ, and the elected public official who witnessed the inventory. The markings on the three sachets of shabu, purportedly seized or confiscated from accused-appellant, was done not by any of the members of the buy-bust team who apprehended accused-appellant, but by P/Insp. Tubo, the assigned investigating officer, at the police station where accused-appellant was brought following his arrest. In addition, there is totally no proof that the markings were done in the presence of accused-appellant. Moreover, the records do not bear any stipulation between the parties, or a statement in the affidavits of the buy-bust team members, or an averment in the prosecution witnesses' testimonies that a physical inventory and photograph of the seized drugs were actually taken immediately upon accused-appellant's arrest or even later on at the police station. No certificate of inventory or inventory receipt or photograph of the seized drugs is attached to the records of the case. There is also no showing at all that representatives from the media and the DOJ and an elected public official were present at the place of arrest or at the police station to witness, together with accused-appellant or his representative or counsel, the conduct of the physical inventory and taking of photographs of the seized drugs: Ultimately, the corpus delicti has not been satisfactorily established by the prosecution in this case. That the prosecution failed to present evidence to account for the very first link in the chain of custody already puts the rest of the chain into question and compromises the integrity and evidentiary value of the three sachets of shabu supposedly seized from accused-appellant. Thus, there is already reasonable doubt as to whether the seized drugs were exactly the same drugs presented in court as evidence. It is true that the IRR states that "noncompliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items." This saving clause, however, applies only

(1) where the prosecution recognized the procedural lapses, and thereafter explained the cited justifiable grounds, and

 (2) when the prosecution established that the integrity and evidentiary value of the evidence seized had been preserved.

 In which case, the prosecution loses the benefit of invoking the presumption of regularity and bears the burden of proving with moral certainty that the illegal drug presented in court is the same drug that was confiscated from the accused during his arrest.  In this case~ the noncompliance with the chain of custody rule by the buy-bust team was not explained by the prosecution. Without any explanation on why the buy-bust team was unable to comply with the chain of custody rule, then there is no basis for the Court to determine if there is a justifiable ground for the same. Regardless of the weakness of accused-appellant's evidence, a judgment of acquittal must follow when the prosecution failed to discharge its burden of proving accused-appellant's guilt beyond reasonable doubt.

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PEOPLE OF THE PHILIPPINES, versus - WILT SAM BANGALAN y MAMBA, G.R. No. 232249. Promulgated: 0 3 SEP 2016

In this case, it is apparent that the inventory of the seized item was not conducted in the presence of any representative of the DOJ and the media contrary to the afore-described procedure. During trial, Police Officer 2 Albert Caranguian (P02 Caranguian) effectively admitted to this lapse.

As earlier stated, it is incumbent upon the prosecution to account for these witnesses' absence by presenting a justifiable reason therefor or, at the very least, by showing that genuine and sufficient efforts were exerted by the apprehending officers to secure their presence. Similar to sheer statements of unavailability, the failure to remember if such witnesses were present during the inventory, without more, is undoubtedly too flimsy of an excuse and hence, would not pass the foregoing standard to trigger the operation of the saving clause. To add, records are bereft of any indication that photographs of the confiscated items were duly taken. This lapse was completely unacknowledged and perforce, left unjustified by the prosecution altogether. Because of these deviations, the Court is therefore constrained to conclude that the integrity and evidentiary value of the items purportedly seized from Bangalan were compromised, which consequently warrants his acquittal.

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PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, - versus - EMMA T. PAGSIGAN, Accused-Appellant. G.R. No. 232487: SEP 03, 2018

We have ruled that non-compliance with the requirements of Section 21 of R.A. No. 9165 casts doubt on the integrity of the seized items and creates reasonable doubt on the guilt of the accused-appellant. 18 Section 21 of the Comprehensive Dangerous Drugs Act, as amended by R.A. No. 10640, spells out the requirements for the custody and disposition of confiscated, seized, and/or surrendered drugs and/or drug paraphernalia. Section 21(1) to (3) stipulate the requirements concerning custody prior to the filing of a criminal case:

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 dangerous drugs, controlled precursors and essential chemicals, instruments/paraphernalia and/or laboratory equipment shall, immediately after seizure and confiscation, conduct a physical inventory of the seized  items and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, with an elected public official and a representative of the National Prosecution Service or the media who shall be required to sign the copies of the inventory and be given a copy thereof Provided, That the physical inventory and photograph shall be conducted at the place where the search warrant is served; or at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable, in case of warrantless seizures: Provided, finally, That noncompliance 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) hours upon confiscation/seizure of dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment, 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, which shall be done by the forensic laboratory examiner, shall be issued immediately upon the receipt of the subject items: Provided, That when the volume of dangerous drugs, plant sources of dangerous drugs, and controlled precursors and essential chemicals 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[.]

"Compliance with Section 21 's requirements is critical. Noncompliance is tantamount to failure in establishing identity of corpus delicti, an essential element of the offenses of illegal sale and illegal possession of dangerous drugs. By failing to establish an element of these offenses, noncompliance will, thus, engender the acquittal of an accused."  The rules provide that the apprehending team should mark and conduct a physical inventory of the seized items and to photograph the same immediately after seizure and confiscation in the presence of the accused or his representative or counsel, as well as any elected public official and a representative of the National Prosecution Service or the media. mandates that the insulating witnesses be present during the marking, the actual inventory, and the taking of photographs of the seized items to deter [possible planting of] evidence.21 Here, there was failure all together by the police to conduct the inventory and photograph the same before the insulating witnesses.

Despite the attempts to clarify the lack of compliance with insulating witnesses, however, the fact remains that no inventory and photographs were taken or made even when the markings were made at the barangay hall.

In Lescano v. People,27 We "underscored that the mere marking of seized paraphernalia, unsupported by a physical inventory and taking of photographs, and in the absence of the persons required by Section 21 to be present, does not suffice."

Considering the absence of a justifiable explanation as to the noncompliance with the rules, We find that the prosecution failed to show that the seized substance from the accused-appellant was the same substance offered in Court, especially since the amount involved in this case is minuscule. In Mallillin v. People,33 this court said that "the likelihood of tampering, loss or mistake with respect to an exhibit is greatest when the exhibit is small and is one that has physical characteristics fungible in nature and similar in form to substances familiar to people in their daily lives."34 The integrity then of the corpus delicti cannot be said to have been properly established. The Court, therefore, acquits accused-appellant on the basis of reasonable doubt.

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PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, - versus - ROMY LIM y MIRANDA, Accused-Appellant. September 4, 2018

In this case, IOI Orellan testified that no members of the media and barangay officials arrived at the crime scene because it was late at night and it was raining, making it unsafe for them to wait at Lim's house.35 102 Orcales similarly declared that the inventory was made in the PDEA office considering that it was late in the evening and there were no available media representative and barangay officials despite their effort to contact them.36 He admitted that there are times when they do not inform the barangay officials prior to their operation as they might leak the confidential information.37 We are of the view that these justifications are unacceptable as there was no genuine and sufficient attempt to comply with the law. The testimony of team-leader I02 Orcales negates any effort on the part of the buy-bust team to secure the presence of a barangay official during the operation.

The prosecution likewise failed to explain why they did not secure the presence of a representative from the Depar .. ment of Justice (DOJ). While the arresting officer, 101 Orellan, stated in his Affidavit that they only tried to coordinate with the barangay officials and the media, the testimonies of the prosecution witnesses failed to show that they tried to contact a DOJ representative. The testimonies of the prosecution witnesses also failed to establish the details of an earnest effort to coordinate with and secure presence of the required witnesses. They also failed to explain why the buy-bust team felt "unsafe" in waiting for the representatives in Lim's house, considering that the team is composed of at least ten (10) members, and the two accused were the only persons in the house.

It bears emphasis that the rule that strict adherence to the mandatory requirements of Section 21(1) of R.A. No. 9165, as amended, and its IRR may be excused as long as the integrity and the evidentiary value of the confiscated items are properly preserved applies not just on arrest and/or seizure by reason of a legitimate buy-bust operation but also on those lawfully made in air or sea port, detention cell or national penitentiary, checkpoint, moving vehicle, local or international package/parcel/mail, or those by virtue of a consented search, stop and frisk (Terry search), search incident to a lawful arrest, or application of plain view doctrine where time is of the essence and the arrest and/or seizure is/are not planned, arranged or scheduled in advance. To conclude, judicial notice is taken of the fact that arrests and seizures related to illegal drugs are typically made without a warrant; hence, subject to inquest proceedings. Relative thereto,

Sections 1 (A.1.10) of the Chain of Custody Implementing Rules and Regulations directs:

A. I. I 0. Any justification or explanation in cases of noncompliance with the requirements of Section 2I (1) of R.A. No. 9I65, as amended, shall be clearly stated in the sworn statements/affidavits of the apprehending/seizing officers, as well as the steps taken to preserve the integrity and evidentiary value of the seized/confiscated items. Certification or record of coordination for operating units other than the PDEA pursuant to Section 86 (a) and (b), Article IX of the IRR of R.A. No. 9I65 shall be presented.

While the above-quoted provision has been the rule, it appears that it has not been practiced in most cases elevated before Us. Thus, in order to weed out early on from the courts' already congested docket any orchestrated or poorly built up drug-related cases, the following should henceforth be enforced as a mandatory policy:

1. In the sworn statements/affidavits, the apprehending/seizing officers must state their compliance with the requirements of Section 21 (1) of R.A. No. 9165, as amended, and its IRR.

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

3. If there is no justification or explanation expressly declared in the sworn statements or affidavits, the investigating fiscal must not immediately file the case before the court. Instead, he or she must refer the case for further preliminary investigation in order to determine the (non) existence of probable cause. 4. If the investigating fiscal filed the case despite such absence, the court may exercise its discretion to either refuse to issue a commitment order (or warrant of arrest) or dismiss the case outright for lack of probable cause in accordance with Section 5,40 Rule 112, Rules of Court.

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PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, - versus - MARCELO SANCHEZy CALDERON, Accused-Appellant. September 5, 2018

To reiterate, unexplained discrepancy in the markings of the seized dangerous drug, resulting in the uncertainty that said item was the exact same item retrieved from the appellant when he was arrested, is not a mere trivial matter, but a major lapse that is fatal to the prosecution's case. It is to be stressed that in drug cases, conviction cannot be sustained if there is a persistent doubt on the identity of the drug. The identity of the prohibited drug must be established with moral certainty. Apart from showing that the elements of possession or sale are present, the fact that the substance illegally possessed and sold in the first place is the same substance offered in court as exhibit must likewise be established with the same degree of certitude as that needed to sustain a guilty verdict. 42