the manabat doctrine

PEOPLE V. MARIO MANABAT, G.R. NO. 242947, Second Division, 17 July 2019

In order to convict a person charged with the crime of illegal sale of dangerous drugs under Section 5, Article II of RA 9165, the prosecution is required to prove the following elements: (1) the identity of the buyer and the seller, the object and the consideration; and (2) the delivery of the thing sold and the payment therefor.

            On the other hand, illegal possession of dangerous drugs under Section 11, Article II of RA 9165 has the following elements: (1) the accused is in possession of an item or object, which is identified to be a prohibited or regulated drug; (2) such possession is not authorized by law; and (3) the accused freely and consciously possesses the drug.

            In cases involving dangerous drugs, the State bears not only the burden of proving these elements, but also proving the corpus delicti or the body of the crime. In drug cases, the dangerous drug itself is the very corpus delicti of the violation of the law. While it is true that a buy-bust operation is a legally effective and proven procedure, sanctioned by law, for apprehending drug peddlers and distributors, the law nevertheless also requires strict compliance with procedures laid down by it to ensure that rights are safeguarded.

           

            In this connection, Section 21, Article II of RA 9165, the applicable law at the time of the commission of the alleged crimes, lays down the procedure that police operatives must follow to maintain the integrity of the confiscated drugs used as evidence. The provision requires that: (1) the seized items be inventoried and photographed immediately after seizure or confiscation; and (2) 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 therefor.

            This must be so because with the very nature of anti-narcotics operations, the need for entrapment procedures, the use of shady characters as informants, the ease with which sticks of marijuana or grams of heroin can be planted in pockets of or hands of unsuspecting provincial hicks, and the secrecy that inevitably shrouds all drug deals, the possibility of abuse is great.

            Section 21 of RA 9165 further requires the apprehending team to conduct a physical inventory of the seized items and the photographing of the same immediately after seizure and confiscation. The said inventory must be done in the presence of the aforementioned required witness, all of whom 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. It is only when the same is not practicable that the Implementing Rules and Regulations (IRR) of RA 9165 allow the inventory and photographing to be done as soon as the buy-bust team reaches the nearest police station or the nearest office of the apprehending officer/team. In this connection, this also means that the three required witness should already be physically present at 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. Verily, a buy-bust team normally has enough time to gather and bring with it the said witness.

            As held fairly recent of People v. Tomawis, the Court explained that 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, viz.:

                        The presence of the witness 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 v. Mendoza, 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 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 bbut 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 frame-up as the witnesses would be able testify 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 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”. (Emphasis in the original)

            Based from the foregoing, the Court holds that the buy-bust operation was not conducted in accordance with the law.

            First, it is not disputed whatsoever that the witnesses were called and eventually arrived at the scene of the crime only after the accused-appellant was already apprehended by PO2 Barral. On cross-examination, PO2 Barral readily admitted that during the apprehension of accused-appellant Manabat, the witness were not present:

            Q         You mean to say that during the arrest, the witnesses did not arrive yet?

            A         Not yet, sir.

            Further, as testified by SP02 Vertudes, the buy-bust team did not contact the witnesses at all before the team arrived at the place of the buy-bust operation. The witnesses were conducted only after accused-appellant Manabat was already arrested and handcuffed:

            Q         Before you proceeded to ABC Printing Press you did not yet contact the

            witnesses from the DOJ, the media and from the elected officials of the

            barangay right?

A         Not yet, sir.

Q         Only after Mario was arrested and handcuffed that you did not contact those witnesses, correct?

A         Yes, sir.

            In fact, the Court notes that the prosecution offered conflicting testimonies as regards the time of arrival of the witnesses.

            According to PO2 Barral, the witnesses arrived: [m]ore or less ten minutes” after they were called. To the contrary, when SPO2 Vertudes was asked to when the witness arrived, he first answered “three to five minutes sir.” But when pressed as to the veracity of his answer, considering that the buy-bust was conducted on a Sunday, SPO2 Vertudes eventually admitted that the arrival of the wtitnesses was completed “[f]ifteen to thirty minutes.”

            Further creating doubt as to the presence of the witnesses during the buy-bust operation is the admission of PO2 Barral on cross-examination that the photographs of the inventory do not show the presence of the witnesses, except for Councilor Epifanio Woo:

                Q             The witnesses are not shown in these pictures during the search, right?

               

                A             No, sir.

                Q             All these pictures are taken close up?

                A             Yes, sir.

                Q             No witnesses are shown in this picture, right?

                A             None, sir.

                x xxx

Q             In the pictures marked as Exhibits “X-9” and “X-16”, there is a person with fatigue short pants?

A             Yes, sir.

Q             You know who is this person?

A             Yes, sir. Councilor Epifanio Woo. He is also shown here.

If the witnesses were indeed present during the entire photographing and inventory of the evidence, obviously, it would have been easy and effortless on the part of the buy-bust team to take photographs of the other witnesses. Yet, this was not done, creating some doubt in the mind of the Court as to the presence of the required witnesses during the buy-bust operation.

The apprehending team cannot justify its failure to ensure the availability of the witnesses during the apprehension of accused-appellant Manabat, considering that the buy-bust operation was conducted seven days after the day it received information about accused-appellant and was instructed to conduct the buy-bust operation. Simply stated, the apprehending team had more than enough time to ensure that all the mandatory procedures for the conduct of the buy-bust operation would be sufficiently met.

Second, the Certificate of Inventory that was produce by the prosecution was irregularly executed.

To reiterate, Section 21 of RA 9165 requires that the copies of the inventory should be signed by all the following persons: (a) 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).

The Certificate of Inventory itself reveals that the document was not signed by accused-appellant Manabat or by his counsel or representative. Upon perusal of the records of the instant case, the prosecution did not acknowledge such defect. Nor did the prosecution provide any explanation whatsoever as to why accused-appellant Manabat was not able to sign the Certificate of Inventory.

Concededly, 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 first (1) recognize any lapse on the part of the police officers and (2) be able to justify the same. In this case, the prosecution neither recognized, much less tried to justify, the police officers’ deviation from the procedure contained in Section 21, RA 9165.

Third, the Court notes that the marking of the plastic sachets allegedly recovered was irregularly done.

Under the 1999 Philippine National Police Drug Enforcement Manual, the conduct of buy-bust operations requires the following:

Anti-Drug Operational Procedures

Chapter V. Specific Rules

x xxx

                                B. Conduct of Operation: (As far as practicable, all operations must be officer led)

1.       Buy-bust Operation – [I]n the conduct of buy-bust operation, the following are the procedures to be observed:

a.       Record time of jump-off in unit’s logbook;

b.       Alertness and security shall at all times to be observed:

c.       Actual and timely coordination with the nearest Philippine National Police territorial units must be made;

d.       Area security and dragnet or pursuit operation must be provided [;]

e.       Use of necessary and reasonable force only in case of suspect’s resistance [;]

f.        If buy-bust money is dusted with ultra violet powder make sure that suspect ge[t] hold of the same and his palm/s contaminated with the powder before giving the pre-arranged signal and arresting the suspects;

g.       In pre-positioning of the team members, the designated arresting elements must clearly and actually observe the negotiation/transaction between suspect and the poseur-buyer;

h.       Arrest suspect in a defensive manner anticipating possible resistance with the use of deadly weapons which maybe concealed in his body, vehicle or in a place within arms’ reach;

i.         After lawful arrest, search the body and vehicle, if any, of the suspect for other concealed evidence oededly weapon;

j.         Appraise suspect of his constitutional rights loudly and clearly after having been secured with handcuffs;

k.       Take actual inventory of the seized evidence by means of weighing and/or physical counting, as the case may be;

l.         Prepare a detailed receipt of the confiscated evidence for issuance to the possessor (suspect) thereof;

m.     The seizing officer (normally the poseur-buyer) and the evidence custodian must mark the evidence with their initials and also indicate the date, time and place the evidence was confiscated/seized;

n.       Take photographs of the evidence while in the process of taking the inventory, especially during the weighing, and if possible under existing conditions, the registered weight of the evidence on the scale must be focused by the camera; and

o.       Only the evidence custodian shall secure and preserve the evidence in an evidence bag or in appropriate container and thereafter deliver the same to the Philippine National Police CLG for laboratory examination.

In the instant case, as incontrovertibly revealed by the photographs of the plastic sachets

Allegedly retrieved from accused-appellant Manabat, only the date and initials of the seizing officers were inscribed on the specimens. The time and place of the buy-bust operation were not indicated in the markings, in clear contravention of the PNP’s own set of procedures for the conduct of buy-bust operations.

                At this juncture, it is well to point-out that while the RTC and CA were correct in stating that denial is an inherently weak defense, it grievously erred in using the same principle to convict accused-appellant Manabat. Both the RTC and CA overlooked the long-standing legal tenet that the starting point of every criminal prosecution is that the accused has the constitutional right to be presumed innocent. And this presumption of innocence is overturned only when the prosecution has discharged its burden of proof in criminal cases and has proven the guilt of the accused beyond reasonable doubt, by proving each and every element of the crime charged in the information, to warrant a finding of guilt for that crime or for any other crime necessarily included therein. Differently stated, there must exist no reasonable doubt as to the existence of each and every element of the crime to sustain a conviction.

                It is worth emphasizing that this burden of proof never shifts. Indeed, the accused need not present a single piece of evidence in his defense if the State has not discharged its onus. The accused can simply rely on his right to be presumed innocent.

                In this connection, the prosecution therefore, in cases involving dangerous drugs, always has the burden of proving compliance with the procedure outlined in Section 21. As the Court stressed in People v. Andaya.

x xx We Should remind ourselves that we cannot presume that the accused committed the crimes they have been charged with. The State must fully establish that for us. If the imputation of ill motive to the lawmen is the only means of impeaching them, then that would be the end of our dutiful vigilance to protect our citizenry from false arrests and wrongful incriminations. We are aware that there have been in the past many cases of false arrests and wrongful incriminations, and that should heighten our resolve to strengthen the ramparts of judicial scrutiny.

Nor should we shirk from our responsibility of protecting the liberties of our citizenry just because the lawmen are shielded by the presumption of the regularity of their performance of duty. The presumed regularity is nothing but a purely evidentiary tool intended to avoid the impossible and time-consuming task of establishing every detail of the performance by officials and functionaries of the Government. Conversion by no means defeat the much stronger and much firmer presumption of innocence in favour of every person whose life, property and liberty comes under the risk of forfeiture on the strength of a false accusation of committing some crime. (Emphasis and underscoring supplied)

                To stress, the accused can rely on his right to be presumed innocent. It is thus immaterial, in this case or in any other cases involving dangerous drugs, that the accused put forth a weak defense.

                To reiterate, breaches of the procedure outlined 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 would have been compromised. As the Court explained in People v. Reyes:

Under the last paragraph of Section 21 (a), Article II of the IRR of R.A. No. 9165, a saving mechanism has been provided to ensure that not every case of non-compliance with the procedures for the preservation of the chain accused. To warrant the application of this saving mechanism, however, the Prosecution must recognize the lapse or lapses, and justify or explain them. Such justification or explanation would be the basis for applying the saving mechanism. Yet, the Prosecution did not concede such lapses, and did not even tender any token justification or explaination for them. The failure to justify or explain underscored the doubt and suspicion about the iintegrity of the evidence of the corpus delicti. With the chain of custody having been compromised, the accused deserves acquittal.

Lastly, it was an error for the RTC to convict accused-appellant Manabat by relying on the presumption of regularity in the performance of duties supposedly extended in favour of the police officers. The presumption of regularity in the performance of duty cannot overcome the stronger presumption of innocence in favor of the accused. Otherwise, a mere rule of evidence will defeat the constitutionally enshrined right to be presumed innocent. As the Court, in People v. Catalan, reminded the lower courts:

Both lower courts favoured the members of the buy-bust team with the presumption of regularity in the performance of their duty, mainly because the accused did not show that they had ill motive behind his entrapment.

We hold that both lower courts committed gross error in relying on the presumption of regularity.

Presuming that the members of the buy-bust team regularly performed their duty was patently bereft of any factual and legal basis. We remind the lower courts that the presumption of regularity in the performance of duty could not prevail over the stronger presumption of innocence favouring the accused. Otherwise, the constitutional guarantee of the accused being presumed innocent would be held subordinate to a mere rule of evidence allocating the burden of evidence. Where, like here, the proof adduces against the accused has not even overcome the presumption of innocence, the presumption regularity in the performance of duty could not be a factor to adjudge the accused guilty of the crime charged.

Moreover, the regularity of the performance of their duty could not be properly presumed in favor of the policemen because the records were replete with indicia of their serious lapses. As a rule, a presumed fact like the regularity of performance by a police officer must be inferred only from an established basic fact, not plucked out from thin air. To say it differently, it is the established basic fact that triggers the presumed fact of regular performance. Where there is any hint of irregularity committed by the police officers in arresting the accused and thereafter, several of which we have earlier noted, there can be no presumption of regularity of performance in their favor. (Emphasis supplied)

                In this case, the presumption of regularity cannot stand-because of the buy-bust team’s disregard of the established procedures under Section 21 of RA 9165 and the PNP’s own Drug Enforcement Manual.

                In sum, the prosecution failed to provide justifiable grounds for the apprehending team’s deviation from the rules laid down in Section 21 of RA 9165. The integrity and evidentiary value of the corpus delicti have thus been compromised. In light of this, accused-appellant Manabat must perforce be acquitted.

                WHEREFORE, in view of the foregoing, the appeal is hereby GRANTED. The Decision dated August 2, 2018 of the Court of Appeals in CA-G.R. CR-H.C. No. 01781-MIN is hereby REVERSED and SET ASIDE. Accordingly, accused-appellant MARIO MANABAT y DUMAGAY is ACQUITTED of the crimes charged on the ground of reasonable doubt, and is ORDERED IMMEDIATELY RELEASED from detention unless he is being lawfully held for another case. Let an entry of final judgment be issued immediately.

                Let a copy of this Decision be furnished the Superintendent of the Ramon Prison and Penal Farm, Zamboanga City, for immediate implementation. The said Superintendent is ORDERED to REPORT to this Court within five (5) days from receipt of this Decision the action he has taken.