People v Tomawis,
GR No. 228890
Facts:
Basher Tomawis was arrested in a buy-bust operation where allegedly he sold to a PDEA agent a methamphetamine hydrochloride, otherwise known as "shabu", a dangerous drug, with a net weight of 12.74 grams in violation of Sec. 5, of RA 9165. During the operation when the sale was already consummated and that the accused had already been arrested; a commotion occurred during the arrest because bystanders inside the food court wanted to help Tomawis who shouted "Tulungan niyo ako papatayin nila ako." They were not able to put markings on the evidence in the vicinity because of the commotion. After Tomawis was arrested, he was read of (sic) his constitutional rights and brought together with the evidence to Brgy. Pinyahan, Quezon City.
Upon reaching Brgy. Pinyahan, they immediately conducted the inventory which was done before the barangay officials of the said barangay. Alejandro handed the seized item to Alfonso Romano who was the inventory officer, but she was present during the inventory process.
RTC gave full credence to the testimony of the prosecution witnesses on the reason that they enjoyed the presumption of regularity in the performance of their official functions and find the accused guilty of the crime charged. CA affirmed the decision of RTC.
Issue:
Whether or not Tomawis' guilt for violation of Section 5 of RA 9165 was proven beyond reasonable doubt.
Held:
NO. The Court resolves to acquit Tomawis as the prosecution utterly failed to prove that the buy-bust team complied with the mandatory requirements of Section 21 of RA 9165 and for their failure to establish the chain of custody of the seized drugs.
For a successful prosecution for the crime of illegal sale of drugs under Section 5 of RA 9165, the following must be proven: (a) the identities of the buyer, seller, object, and consideration; and (b) the delivery of the thing sold and the payment for it. In cases involving dangerous drugs, the drug itself constitutes the corpus delicti of the offense. Thus, it is of paramount importance that the prosecution prove that the identity and integrity of the seized drugs are preserved. Each link in the chain of custody of the seized drugs must be established.
Section 21(a), Article II of the Implementing Rules and Regulations of RA 9165 (IRR) impose the following requirements in the manner of handling and inventory, time, witnesses, and of place after the arrest of the accused and seizure of the dangerous drugs:
1. The initial custody requirements must be done immediately after seizure or confiscation;
2. The physical inventory and photographing must be done in the presence of:
· the accused or his representative or counsel;
· a representative from the media;
· a representative from the DOJ; and
· any elected public official.
3. The conduct of the physical inventory and photograph shall be done at the:
· place where the search warrant is served; or
· at the nearest police station; or
· nearest office of the apprehending officer/team, whichever is practicable, in case of warrantless seizure.
All the above requirements must be complied with for a successful prosecution for the crime of illegal sale of drugs under Section 5 of RA 9165. Any deviation in the mandatory procedure must be satisfactorily justified by the buy-bust team. Under Section 21 of the IRR, the Court may allow deviation from the procedure only where the following requisites are present: (1) the existence of justifiable grounds to allow departure from the rule on strict compliance; and (2) the integrity and the evidentiary value of the seized items are properly preserved by the apprehending team. If these two elements are present, the seizures and custody over the confiscated items shall not be rendered void and invalid.
In this case, the buy-bust team committed several and patent procedural lapses in the conduct of the seizure, initial custody, and handling of the seized drug - which thus created reasonable doubt as to the identity and integrity of the drugs and, consequently, reasonable doubt as to the guilt of the accused.
èJurisprudence states that the procedure enshrined in Section 21, Article II 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. For indeed, however noble the purpose or necessary the exigencies of the campaign against illegal drugs may be, it is still a governmental action that must always be executed within the boundaries of law.
èThe buy-bust team failed to comply with the three-witness rule
èSection 21 plainly requires the apprehending team to conduct a physical inventory of the seized items and the photographing of the same immediately after seizure and confiscation. In addition, the inventory must be done in the presence of the accused, his counsel, or representative, a representative of the DOJ, the media, and an elected public official, who shall be required to sign the copies of the inventory and be given a copy thereof.
èThe phrase "immediately after seizure and confiscation" means that the physical inventory and photographing of the drugs were intended by the law to be made immediately after, or at the place of apprehension. And only if this is not practicable, the IRR allows that the inventory and photographing could be done as soon as the buy-bust team reaches the nearest police station or the nearest office of the apprehending officer/team. By the same token, however, this also means that the three required witnesses 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. Simply put, the buy-bust team has enough time and opportunity to bring with them said witnesses.
èThe 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 v. Mendoza,28 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 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.
èIt 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.
èèThe 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.
è"Chain of Custody" means the duly recorded authorized movements and custody of seized drugs or controlled chemicals or plant sources of dangerous drugs or laboratory equipment of each stage, from the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping to presentation in court for destruction. Such record of movements and custody of seized item shall include the identity and signature of the person who held temporary custody of the seized item, the date and time when such transfer of custody were made in the course of safekeeping and use in court as evidence, and the final disposition[.]
IO1 Alejandro testified that she received the drugs from Tomawis and that she submitted the same to the laboratory for testing. The inventory was conducted by the assigned Inventory Officer, IO1 Alfonso. However, there is no testimony as to the movement of the drugs from IO1 Alejandro to IO1 Alfonso, and supposedly back again from IO1 Alfonso to IO1 Alejandro for the submission of the seized drugs to the crime laboratory. Meanwhile, IO1 Lacap, also claimed to have received the seized drugs from Tomawis. He also contradicted IO1 Alejandro's testimony as he said that IO1 Alfonso was the one who had custody of the drugs prior to the delivery to the crime laboratory.
àThere are unexplained gaps in the custody of the seized drugs. The transfer and movement of the seized drugs between IO1 Alejandro, IO1 Lacap, and IO1 Alfonso was not established. It is unclear as to who held custody of the seized drugs from the place of arrest in Starman, Alabang to Brgy. Pinyahan, Quezon City and from Brgy. Pinyahan, Quezon City to the PDEA office. It was not clarified as to how and when the seized drugs were returned to IO1 Alejandro after the inventory was conducted by IO1 Alfonso. There was also no testimony as to who received the seized drugs from IO1 Alejandro at the laboratory, and to whom they were given after the testing was conducted.
èThus, the prosecution was unable to establish the unbroken chain of custody. The uncertainties and inconsistencies in the testimony of the buy bust team and lack of information at specific stages of the seizure, custody, and examination of the seized drugs creates doubt as to the identity and integrity thereof. Each link in the chain of custody must be proved by the prosecution and cannot be conveniently explained by the invocation of presumption of regularity.
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