G.R. No. 239471 PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, V. JOSEPH CINCO ARCIAGA A.K.A. "JOSEPHUS CINCO ARCIAGA," ACCUSED-APPELLANT. January 14, 2019

This is an ordinary appeal^[1]from the Decision^[2]dated January 29, 2018 of the Court of Appeals (CA) in CA-G.R. CR-HC No. 02215, which affirmed the Omnibus Decision^[3]dated August 10, 2015 of the Regional Trial Court of Cebu City, Branch 57 (RTC) in Criminal Case Nos. CBU- 96423 and CBU-96424, finding accused-appellant Joseph Cinco Arciaga a.k.a. "Josephus Cinco Arciaga" (Arciaga) guilty beyond reasonable doubt for violating Sections 5 and 11, Article II of Republic Act No. (R.A.) 9165,^[4]otherwise known as the "Comprehensive Dangerous Drugs Act of 2002."

The Facts

This case stemmed from two (2) Informations^[5]filed before the RTC charging Arciaga with the crimes of Illegal Sale and Illegal Possession of Dangerous Drugs, respectively defined and penalized under Sections 5 and 11, Article II of RA 9165. The prosecution alleged that at around four (4) o'clock in the afternoon of June 26, 2012, a team of officers from the Philippine Drug Enforcement Agency Regional Office 7 (PDEA-RO 7) conducted a buy-bust operation against Arciaga at his house, during which one (1) heat-sealed plastic sachet containing suspectedshabuweighing 0.03 gram was recovered from him. Consequently, a search incidental to his arrest yielded three (3) more heat-sealed plastic sachets containing suspectedshabuweighing 0.04 gram each. As the team noticed that a crowd was already forming outside Arciaga's house, they, together with Arciaga, proceeded to the PDEA-RO 7 Office where the seized items were marked, photographed, and inventoried^[6]in the presence of Barangay Captain Jerome B. Lim and media personnel Virgilio T. Salde, Jr. of DYMF Bombo Radyo. Thereafter, the seized items were brought to the crime laboratory for examination and tested positive^[7]for Methamphetamine Hydrochloride orshabu, a dangerous drug.^[8]

For his part, Arciaga denied the charges against him and claimed that on the said date, he was taking a nap at the second floor of his house when suddenly, several armed men barged inside. Upon seeing him, the armed men ordered him to lie face down on the floor, handcuffed him, and searched his body, as well as his house. When the armed men did not find anything, he was then taken to the PDEA-RO 7 Office.^[9]

In an Omnibus Decision^[10]dated August 10, 2015, the RTC found Arciaga guilty beyond reasonable doubt of the crimes charged, and accordingly, sentenced him as follows: (a) In Criminal Case No. CBU- 96423, to suffer the penalty of life imprisonment and to pay a fine of P500,000.00; and (b) in Criminal Case No. CBU-96424, to suffer the penalty of imprisonment for an indeterminate period of twelve (12) years and one (1) day to twelve (12) years and one (1) month, and to pay a fine of P300,000.00.^[11]The RTC found that the prosecution sufficiently established all the elements of the aforesaid crimes as it was able to prove that: (a) Arciaga indeed sold a plastic sachet containingshabuto the poseur-buyer during a legitimate buy-bust operation; and (b) subsequent to his arrest, more plastic sachets containingshabuwere recovered from him. The RTC further observed that the integrity and evidentiary value of the seized items had been preserved, considering that the buy-bust team sufficiently complied with the chain of custody rule.^[12]

In a Decision^[13]dated January 29, 2018, the CA affirmed the RTC ruling, holding that all the elements of the crimes of Illegal Sale and Illegal Possession of Dangerous Drug were present and that the chain of custody rule was duly complied with.^[14]

Hence, this appeal seeking that Arciaga's conviction be overturned.

The Court's Ruling

The appeal is meritorious.

In cases for Illegal Sale and/or Possession of Dangerous Drugs under RA 9165,^[15]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 thecorpus delictiof the crime.^[16]Failing to prove the integrity of thecorpus delictirenders the evidence for the State insufficient to prove the guilt of the accused beyond reasonable doubt and hence, warrants an acquittal.^[17]

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 as evidence of the crime.^[18]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. It is well to clarify, however, that under Section 21 (a), Article II of the Implementing Rules and Regulations (IRR) of RA 9165, which was later adopted into the text of RA 10640,^[19]the foregoing procedures may instead be conducted at the place where the arrest or seizure occurred, at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable, in instances of warrantless seizures – such as in buy-bust operations. In fact, 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.^[21]

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) ifpriorto the amendment of RA 9165 by RA 10640,^[22]"a representative from the mediaANDthe Department of Justice (DOJ), and any elected public official";^[23]or (b) ifafterthe amendment of RA 9165 by RA 10640, "[a]n elected public official and a representative of the National Prosecution Service (NPS)ORthe 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]

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."^[26]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."^[27]

Nonetheless, the Court has recognized that due to varying field conditions, strict compliance with the chain of custody procedure may not always be possible.^[28]As such, the failure of the apprehending team to strictly comply with the same would notipso factorender the seizure and custody over the items as void and invalid, provided that the prosecution satisfactorily proves that: (a) there is a justifiable ground for non-compliance; and (b) the integrity and evidentiary value of the seized items are properly preserved.^[29]The foregoing is based on the saving clause found in Section 21 (a),^[30]Article II of the IRR of RA 9165, which was 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 required witnesses rule, 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, mee 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, inPeople 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 proceedingsa 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 the first time on appeal, or even not raised, become apparent upon further review."^[38]

In this case, while the Court agrees with the courtsa quothat the buy-bust team was justified in conducting the marking, inventory, and photography at the PDEA-RO 7 Office due to security reasons,i.e., a crowd was already forming at the place of Arciaga's arrest, it is nevertheless apparent that, as seen in the Certificate of Inventory^[39]dated June 26, 2012, the inventory of the seized' items wasnotconducted in the presence of a DOJ representative, contrary to the afore-described procedure.^[40]This was confirmed by no less than the poseur-buyer, Intelligence Officer I Edd Ryan Dayuha (IO1 Dayuha), in his testimony during cross-examination, to wit:

[Atty. Ungab]: Who were the witnesses when you conducted the inventory and the markings, Mr. Witness?

[IO1 Dayuha]: There was one from the media DYMF Bombo Radyo Virgilio Salde. The barangay captain was there also but I forgot his name sir.^[41]

Neither do the records reflect that such witness was present during the photography of the seized items, which process is usually conducted contemporaneously with the inventory thereof. As earlier stated, it is incumbent upon 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. While IO1 Dayuha implicitly acknowledged the absence of a DOJ representative during the conduct of inventory and photography, records are bereft of any reason and/or justification therefor. Thus, in view of these unjustified deviations from the chain of custody rule, the Court is constrained to conclude that the integrity and evidentiary value of the items purportedly seized from Arciaga had been compromised, which consequently warrants his acquittal.

WHEREFORE, the appeal isGRANTED. The Decision dated January 29, 2018 of the Court of Appeals in CA-G.R. CR-HC No. 02215 is herebyREVERSEDandSET ASIDE. Accordingly, accused-appellant Joseph Cinco Arciaga a.k.a. "Josephus Cinco Arciaga" isACQUITTEDof the crimes charged. The Director of the Bureau of Corrections is ordered to cause his immediate release, unless he is being lawfully held in custody for any other reason.

SO ORDERED.

Carpio, Senior Associate Justice (Chairperson), Caguioa, J. Reyes, Jr., andHernando,^[*]JJ., concur.

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^[*]Designated Additional Member per Special Order Nos. 2629 and 2630 dated December 18, 2018.

^[1]See Entry of Appearance with Notice of Appeal dated March 2, 2018;rollo, p. 28-30.

^[2]Id. at 4-27. Penned by Associate Justice Geraldine C. Fiel-Macaraig with Associate Justices Pamela Ann Abella Maxino and Gabriel T. Robeniol, concurring.

^[3]CArollo, pp. 12-22. Penned by Acting Presiding Judge James Stewart Ramon E. Himalaloan.

^[4]Entitled "AN ACT INSTITUTING THE COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002, REPEALING REPUBLIC ACT NO. 6425, OTHERWISE KNOWN AS THE DANGEROUS DRUGS ACT OF 1972, AS AMENDED, PROVIDING FUNDS THEREFOR, AND FOR OTHER PURPOSES," approved on June 7, 2002.

^[5]The Information in Criminal Case No. CBU-96423 was for Section 5, Article II of RA 9165 (seerollo, p. 5 and records, p. 1); while the Information in Criminal Case No. CBU-96424 was for Section 11, Article II of RA 9165 (seerollo, pp. 5-6).

^[6]See Certificate of Inventory dated June 26, 2012; records, p. 13.

^[7]See Chemistry Report No. D-624-2012 dated June 27, 2012; id. at 12.

^[8]Seerollo, pp. 6-9. See also CArollo, pp. 12-15.

^[9]See id. at 9-10.

^[10]CArollo, pp. 12-22.

^[11]Id. at 21-22.

^[12]See id. at 18-21.

^[13]Rollo, pp. 4-27.

^[14]See id. at 16-27.

^[15]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. (SeePeople v. Crispo, G.R. No. 230065, March 14, 2018;People v. Sanchez, G.R. No. 231383, March 7, 2018;People v. Magsano, G.R. No. 231050, February 28, 2018;People v. Manansala, G.R. No. 229092, February 21, 2018;People v. Miranda, G.R. No. 229671, January 31, 2018; andPeople v. Mamangon, G.R. No. 229102, January 29, 2018; all cases citingPeople v. Sumili, 753 Phil. 342, 348 [2015] andPeople v. Bio, 753 Phil. 730, 736 [2015]).

^[16]SeePeople v. Crispo, id.;People v. Sanchez, id.;People v. Magsano, id.;People v. Manansala, id.;People v. Miranda, id.; andPeople v. Mamangon, id. See alsoPeople v. Viterbo, 739 Phil. 593, 601 (2014).

^[17]SeePeople v. Gamboa, G.R. No. 233702, June 20, 2018, citingPeople v. Umipang, 686 Phil. 1024, 1039-1040 (2012). See alsoPeople v. Manansala, id.

^[18]SeePeople v. Año, G.R. No. 230070, March 14, 2018;People v. Crispo, supra note 15;People v. Sanchez, supra note 15;People v. Magsano, supra note 15;People v. Manansala, id.;People v. Miranda, supra note 15; andPeople v. Mamangon, supra note 15. See alsoPeople v. Viterbo, supra note 16.

^[19]Entitled "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 on July 15, 2014.

^[20]People v. Mamalumpon, 767 Phil. 845, 855 (2015), citingImson v. People, 669 Phil. 262, 270-271 (2011). See alsoPeople v. Ocfemia, 718 Phil. 330, 348 (2013), citingPeople v. Resurreccion, 618 Phil. 520, 532 (2009).

^[21]SeePeople v. Tumulak, 791 Phil. 148, 160-161 (2016); andPeople v. Rollo, 757 Phil. 346, 357 (2015).

^[22]Entitled "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 on July 15, 2014."

^[23]Section 21 (1) and (2), Article II of RA 9165 and its Implementing Rules and Regulations.

^[24]Section 21, Article II of RA 9165, as amended by RA 10640.

^[25]SeePeople v. Mendoza, 736 Phil. 749, 764 (2014).

^[26]SeePeople v. Miranda, supra note 15. See alsoPeople v. Macapundag, G.R. No. 225965, March 13, 2017, citingPeople v. Umipang, supra note 17, at 1038.

^[27]SeePeople v. Segundo, G.R. No. 205614, July 26, 2017, citingPeople v. Umipang, id.

^[28]SeePeople v. Sanchez, 590 Phil. 214, 234 (2008).

^[29]SeePeople v. Almorfe, 631 Phil. 51, 60 (2010).

^[30]Section 21 (a), Article II of the IRR of RA 9165 pertinently states: "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."

^[31]Section 1 of RA 10640 pertinently states: "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."

^[32]People v. Almorfe, supra note 29.

^[33]People v. De Guzman, 630 Phil. 637, 649 (2010).

^[34]SeePeople v. Manansala, supra note 15.

^[35]SeePeople v. Gamboa, supra note 17, citingPeople v. Umipang, supra note 17, at 1053.

^[36]SeePeople v. Crispo, supra note 15.

^[37]Supra note 15.

^[38]See id.

^[39]Records, p. 13.

^[40]To note, the buy-bust operation against Arciaga was done on June 26, 2012, or before the passage of RA 10640. As such, the inventory and photography must be witnessed by an elected public official, a media representative,ANDa DOJ representative.

^[41]TSN, April 22, 2013, p. 14.