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Republic of the Philippines

REGIONAL TRIAL COURT OF BOHOL


Branch 49
City of Tagbilaran

PEOPLE OF THE PHILIPPINES,


Plaintiff,
Criminal Cases Nos. 15010
15011
-versus- For:
Violation of Sections 5 & 11
Article II of R.A. 9165
EFREN B. CASTRO,
Accused.
x-----------------------------------------/

MEMORANDUM
ACCUSED, through the undersigned counsel, and before this
Honorable Court, most respectfully submits this Memorandum in
support of his ACQUITTAL of the crimes for which he is charged, and
states, thus:

PREFATORY

The Constitution mandates that an accused shall be


presumed innocent until the contrary is proven beyond
reasonable doubt. It is the burden of the prosecution to overcome
such presumption of innocence by presenting the quantum of
evidence required. Corollarily, the prosecution must rest on its
own merits and must not rely on the weakness of the defense. In
fact, if the prosecution fails to meet the required quantum of
evidence, the defense may logically not even present evidence in
its own behalf. In which case, the presumption of innocence shall
prevail and hence, the accused shall be acquitted. However, once
the presumption of innocence is overcome, the defense bears the
burden of evidence to show reasonable doubt as to the guilt of
the accused. Reasonable doubt is that doubt engendered by an
investigation of the whole proof and an inability after such
investigation to let the mind rest each upon the certainty of
guilt. Absolute certainty of guilt is not demanded by the law to

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convict a criminal charge, but moral certainty is required as to
every proposition of proof requisite to constitute the offense.1
The presumption of innocence is a conclusion of law in
favor of the accused, whereby his innocence is not only
established but continues until sufficient evidence is introduced to
overcome the proof which the law created-namely, his innocence.
When a doubt is created, it is the result of proof and not the
proof itself. The courts will not impute a guilty construction or
inference to the facts when a construction or inference
compatible with innocence arises therefrom with equal force and
fairness. In fact, it is always the duty of a court to resolve the
circumstances of evidence UPON A THEORY OF INNOCENCE
rather than upon a theory of guilt where it is possible to do so.
The accused is not to be presumed guilty because the facts are
consistent with his guilt; this will be done only where the facts are
inconsistent with his innocence. 2

ARGUMENTS AND DISCUSSION

I.
THE PROSECUTION FAILED TO
PORTRAY A BELIEVABLE PICTURE OF
THE ALLEGED BUY-BUST OPERATION.

Accused is being charged of violating Section 5, Article II of


R.A. 9165 which prohibits the sale of illegal drugs. The Supreme
Court, in People v. Lorenzo,3 cites the elements of the crime which
include: (a)the identities of the buyer and the seller, the object
of the sale, and the consideration; and (b)the delivery of the
thing sold and the payment for the thing.

In the instant case, the account of the Prosecutions police-


witnesses are marked by glaring inconsistencies and loose ends
which invalidate their allegation that a transaction had transpired
between a designated poseur-buyer with the help of a police asset,
and herein Accused for the elements of the illegal sale of prohibited
drugs to prosper. Fact is, the individual Affidavits of PO3 Ben
Gurion Serohijos (designated poseur-buyer) and SPO1 Anecito
Ampong (officer designated as close back-up), including their

1 People v. Gerardo Orteza, G.R. No. 173051 [Formerly G.R. No. 161678], July 31, 2007.
2 I Whartons Criminal Evidence, 11thEd., Section 72; cited in Francisco, Criminal Procedure,
2nd Ed., 1969, p. 455.
3 G.R. No. 184760, April 23, 2010, 619 SCRA 389, 400, citing People v. Villanueva, 536 Phil. 998, 1004
(2006).

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collective testimonies in court vis--vis the other documents offered
in evidence by the Prosecution are inconsistent with their story of a
buy-bust.
The narration of events that supposedly transpired during their
execution of the entrapment of herein Accused is far from being a
straightforward testimony of the said arresting officers. It is mind-
boggling, to say the least, that the two (2) officers who supposedly
played key roles in the purported buy-bust would have extreme
inconsistencies in their testimonies on the sequence of events leading
to the drug-transaction and the actual exchange of the shabu and
marked-money between poseur-buyer, who was allegedly aided by a
civilian asset, and herein Accused, as seller.

These contradictions in the court testimonies and the


disharmony in the documents offered in evidence are particularly in
relation to key aspects of the operation. In real life police operations,
such disharmony exposes officers lives in serious jeopardy which
could either prove disastrous, if not a tragic ending for the policemen
involved.

THE UNCERTAINTY OVER THE


IDENTITY OF THE CIVILIAN
ASSET THROWS THE ENTIRE
STORY OF A BUY-BUST IN
TOTAL DISARRAY.

In the records of the instant cases, it is unclear as to WHO


MADE THE INITIAL CONTACT WITH THE ACCUSED as buyer of
the shabu. In fact, the two officers could not agree how the
transaction was carried out, whether the civilian asset whom
they utilized in the entrapment of herein Accused was a MAN
or a WOMAN. The police officer supposedly designated as poseur-
buyer declared during trial that the civilian asset/informant whom he
worked with in carrying out the drug-transaction with the Accused
was a man. Thus:

Atty. Aleck Francis T. Lim cross-examines PO3 Serohijos


[TSN, 4/17/2013, pp. 18-19]:
xxx
Q: Now, you mentioned a civilian asset who was with you, is that
correct?
A: Yes, Sir.
Q: And this civilian asset we all know is a lady, correct?
A: No, I did not say she is a lady, Sir.
Q: But Im asking you now that this civilian asset was a lady?

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A: No, Sir.
Q: A male?
A: MALE, SIR.
Q: A male. Now, the family name of this male is Elle?
A: I cannot answer that. Sir.
Q: Is it not Mr. Witness that there were two (2) civilian assets who
were with you during the operation?
A: Only one (1).
Q: Now, you said you went to this KTB Bar in Remolador Street near
Cogon, correct?
A: Yes, Sir.
Q: Only together with this male civilian asset, correct?
A: Together with the team.
Q: And also this male civilian asset?
A: MALE.
Q: So, he was with you?
A: Yes, Sir. [Emphasis ours]
xxx

On the other hand, SPO1 Ampong testified the exact opposite


when he was called to the witness stand, saying that the asset they
utilized in said entrapment was a woman:

Atty. Aleck Francis T. Lim cross-examines SPO1 Ampong


[TSN, 6/25/2013, p. 13]:
xxx
Q: Now, you said together with you with the team is an asset, correct?
A: Yes.
Q: IS THAT ASSET A MALE OR FEMALE WITHOUT DISPOSING [sic] THE
NAME?
A: FEMALE.
Q: So part of the team that went inside the KTV Bar which you could
no longer recall is Police Officer Serohijos that female asset and
you, correct, its only the three of you?
A: Three (3) only.
Q: So you will confirm that its only you, Police Officer Serohijos and
the asset went inside the KTV Bar, correct?
A: Yes. [Emphasis ours]
xxx

How is it possible that the two officers would have


dissimilar recollections as to the identity, or more correctly
the gender, of the asset? It must be emphasized that, in these
instant cases, the certainty as to the existence of the police-
asset/civilian informant must be clearly established, as this
is vital to the portrayal of the entire picture of the buy-bust,
since it was through said asset that the offer to buy shabu
was allegedly initiated. It was via said asset that the drug-

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transaction with the Accused was supposedly set-up. In all
these confusion, however, the truth prevails.

But first, to put things in perspective, the Supreme Courts


ruling in People v. De Guzman,4 which laid down the objective test
in determining the credibility of the prosecutions witnesses regarding
the conduct of a legitimate buy-bust operation, is worth emphasis:

We therefore stress that the objective test in buy-bust


operation demands that the details of the purported
transaction must be clearly and adequately shown. This
must start from the initial contact between the poseur-
buyer and the pusher, the offer for purchase, the promise
or payment of the consideration until the consummation
of the sale by the delivery of the illegal drug subject of the
sale. THE MANNER BY WHICH THE INITIAL CONTACT WAS
MADE, WHETHER OR NOT THROUGH AN INFORMANT, THE
OFFER TO PURCHASE THE DRUG, THE PAYMENT OF THE
BUY-BUST MONEY, AND THE DELIVERY OF THE ILLEGAL
DRUG, WHETHER TO THE INFORMANT ALONE OR THE
POLICE OFFICER, MUST BE THE SUBJECT OF STRICT
SCRUTINY BY COURTS to insure that law-abiding citizens
are not unlawfully induced to commit an offense.
[Emphases supplied]

Applying the above test, and since the identity of the


civilian asset is now under a dark cloud of doubt, it follows that
the manner by which the initial contact was made by the
said asset/informant, how the offer to purchase the alleged
shabu was made and the consequent delivery of said item
through the said asset/informant are likewise thrown into
serious UNCERTAINTY.

Taking the argument a step further, the identity of the


poseur-buyer and the payment of the consideration for the
alleged shabu are likewise DOUBTFUL. Practically, therefore, all the
elements for the crime of illegal sale of prohibited drugs are non-
existent in the instant case.

NO MATERIAL PROOF HAS


BEEN PRESENTED TO SHOW
THAT THE TRANSACTION OR

4 G.R. No. 151205, June 9, 2004, 431 SCRA 516, citing People v. Doria, 361 Phil. 595, 621 (1999).

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SALE OF SHABU ACTUALLY
TOOK PLACE.

Both SPO1 Ampong and PO3 Serohijos likewise gave conflicting


and contradicting statements as to the position of herein Accused,
the asset and PO3 Serohijos inside the Videoke Bar during the actual
drug-transaction.

According to PO3 Serohijos, he was seated opposite / across /


infront of the Accused from the table, to wit:

Atty. Aleck Francis T. Lim cross-examines PO3 Serohijos


[TSN, 4/17/2013, pp. 28-30]:
xxx
Q: You said that accused near me, where did he seat?
A: Facing me, Sir.
Q: Facing you?
A: Yes, Sir.
Q: His back would be facing the cashier?
A: Yes, Sir.
Q: Facing the cachier of?
A: KTB Bar.
Q: His back would clearly shown also to other people who were also
inside the KTB Bar?
A: Yes, Sir.
Q: Now, given the place where the accused was seated, now you
mentioned in your testimony when the accused arrived he let you
choose two (2) sachets that is your testimony, correct?
A: Yes, Sir.
Q: You want to tell this Court to believe that accused would just
considering his back facing openly facing the other people inside the
KTB bar he would just openly show you two sachets of shabu
notwithstanding the other people could see?
A: He did not open immediately.
Q: Okay. How did he did it?
A: He sat down in front of me then he showed the two (2) sachets at his
side.
Q: At his side. If you show in his side you would not able to see because
according to you, you seat in front of him?
A: The two (2) tables are so small like this one.
Q: If I was the accused in these cases, I would seat here, you there and
the other male asset is here, I would show to the side you are not at
this side?
A: Near.
Q: Okay, knowing that the table is just like as this big... (interrupted)
COURT:
The table is square?
ATTY. LIM:
Square, Your Honor.
COURT:

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The table is not rectangular not square.
ATTY. LIM:
Wait its square, Your Honor.
COURT:
Not rectangular.
ATTY. LIM:
Not rectangular, Your Honor.
COURT:
They were seated opposite to each other?
ATTY. LIM:
Opposite each other. [Emphasis ours]
xxx

However, a sketch made by SPO1 Ampong [please see Exhibit


2, for the Accused (changed from Exhibit 1 to Exhibit 2 )]
which he made during his cross-examination, PO3 Serohijos was NOT
seated in front or across from herein Accused but at his right side.
These inconsistencies and contradictions on important and material
points in the testimonies of the Prosecutions witnesses seriously cast
doubts on the Prosecutions claim that a buy-bust was conducted
against herein Accused. As held in People v. Jubilag,5 to wit:

The credibility of the prosecution witnesses is highly


questionable and crumbles in the face of the
aforementioned inconsistencies in their testimonies and
the suspicious circumstances surrounding appellant's
arrest. How the trial court could have overlooked these
continues to puzzle us. In upholding the prosecution, the
trial court erroneously relied, first, on the general rule that
inconsistencies in the testimonies of prosecution witnesses
with respect to minor details and collateral matters do not
affect either the substance of their declaration, their
veracity, or the weight of their testimony, and second, on
the presumption of regularity in the performance of
official duties by the police officers. However entrenched
these rules may be, they do not find application in the case
at bar. Thus, in People v. Remorosa, where the testimony
of the police officer was tainted with material
contradictions, we held that, irreconcilable and
unexplained contradictions in the testimonies of the
prosecution witnesses cast doubt on the guilt of the
appellant and his culpability of the crime charged. As in
the said case, the moral certainty of the appellant's
culpability has not been established in this case. Instead,
the palpable inconsistencies on material points
corroborate and strengthen appellant's version of the
5 G.R. No. 112148. October 28, 1996.

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incident. Finally, it is a settled rule in our jurisprudence
that:
If the inculpatory facts and circumstances are capable
of two or more explanations, one of which is consistent
with the innocence of the accused and the other consistent
with his guilt, then the evidence does not fulfill the test of
moral certainty and is not sufficient to support a
conviction. [Emphasis ours]

Moreover, in People v. Yutuc,6 the Supreme Court likewise


held that:

Under the circumstances, there is merit in defense


counsel's contention that these prosecution witnesses
who are sworn to protect the citizenry, yet have knowingly
violated the Constitution and the law, hardly deserve to be
given any credence at all. Otherwise stated, there can be
no conviction on the basis of their testimonies (Rollo, p.
88).
Verily, the presumption that official duty has been
regularly performed cannot, by itself, prevail against the
constitutional presumption of innocence accorded an
accused person.
Even more categorically, the Court stated that the
common modus operandi of narcotic agents of utilizing
poseur-buyers does not always commend itself as the
most reliable way to go after violators of the Dangerous
Drugs Act as it is susceptible to mistake as well as to
harassment, extortion and abuse.
Still further, full faith and credence cannot be
accorded to the testimonies of the prosecution witnesses
particularly those of the two arresting officers, as they are
replete with contradictions and tainted with inaccuracies.
[Emphases ours; citations omitted]

Clearly, the prosecution and the police officers involved failed to


present a realistic and convincing narrative of their supposed
entrapment involving herein Accused.

It must be emphasized that for the successful prosecution of the


offense under Section 5, Article II of RA 9165, there must be
material proof that the transaction or sale of the contraband
actually took place, coupled with the presentation in court of
the prohibited or regulated drug. The delivery of the illegal
6 G.R. No. 82590, July 26, 1990.

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drug (shabu) to the poseur-buyer and the receipt of the
marked money consummate the buy-bust transaction
between the entrapping officers and the Accused.7 Worth
citing is the high courts ruling in People v. Salcena,8 to wit:

[I]t is pertinent to mention the ruling in the case


of People v. Angelito Tan that courts are mandated to PUT
THE PROSECUTION EVIDENCE THROUGH THE CRUCIBLE OF
A SEVERE TESTING and that the presumption of innocence
requires them to take a more than casual consideration of
every circumstance or doubt favoring the innocence of the
accused. In the case at bench, the prosecution evidence,
when placed under severe testing, does not prove with
moral certainty that a legitimate buy-bust operation was
conducted against Salcena. [Emphases added, citation
omitted]

In these instant cases, since it remains uncertain whether the


civilian asset who assisted the police/poseur-buyer is male or female,
the other details of the operation are also doubtful, particularly with
regards the identity of the corpus delicti of the crimes charged, as
discussed in detail, hereunder:

II.
THE FAILURE OF THE PROSECUTIONS
POLICE-WITNESSES TO COMPLY WITH THE
STRICTURES UNDER SEC. 21 OF R.A. 9165, IN
THE CHAIN OF CUSTODY OF SEIZED DRUGS,
IS ENOUGH TO ENGENDER REASONABLE
DOUBT ON THE GUILT OF ACCUSED.

Foremost, two Supreme Court pronouncements are worth


citing, from which the above argument is premised, to wit:

The inconsistency in the evidence and the weak


presentation of the prosecution leaves A GAPING HOLE IN
THE CHAIN OF CUSTODY, which CREATES A REASONABLE
DOUBT ON THE GUILT OF THE ACCUSED. In view of the
prosecutions failure to adduce justifiable grounds on their
procedural lapses and the unexplained conflicting

7 People v. De la Cruz, G.R. No. 177222, October 29, 2008, 570 SCRA 273, 283.
8 G.R. No. 192261, November 16, 2011.

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inconsistencies in the evidence presented, we are constrained
to reverse the finding of the court a quo. 9
"LAW ENFORCERS SHOULD NOT TRIFLE WITH THE LEGAL
REQUIREMENT TO ENSURE INTEGRITY IN THE CHAIN OF
CUSTODY OF SEIZED DANGEROUS DRUGS and drug
paraphernalia. Xxx." 10

In the instant cases, the Prosecutions own police-witnesses


failed to establish the integrity in the handling of the two (2)
medium cellophane sachets containing shabu through an
unbroken chain of custody after their purported consummation of a
buy-bust and a subsequent body-search on the Accused.

Reasonable doubt is borne out of the Prosecutions


documentary evidence and the testimonies of its police-witnesses
which collectively exposes a series of BROKEN LINKS in the
custodial chain of the two (2) sachets of shabu due to several
infirmities in the manner by which the two (2) sachets of the
prohibited drug, one of which was supposedly (1)purchased, and the
other (2)confiscated, from the Accused, as established by the
testimonies of the two (2) main police-witnesses during trial of these
cases and the documents offered in evidence by the Prosecution, as
discussed further hereunder:

THE IDENTITY OF THE CORPUS


DELICTI CANNOT BE
ESTABLISHED BASED ON THE
POLICE-WITNESSES
TESTIMONIES AND THE
DOCUMENTS OFFERED IN
EVIDENCE BY THE PROSECUTION.

PO3 Ben Gurion Serohijos, the police operative who allegedly


acted as poseur-buyer and as seizing officer, failed to mark the
shabu which he claimed to have purchased from the Accused
immediately 1 1 after the purported buy-bust. The alleged sachet
containing shabu that was subject of the sale was never marked,
9 People v. Salonga, G. R. No. 194948, September 2, 2013.
10People v. Dela Cruz, G.R. No. 205821, October 1, 2014; citing People v. Holgado, G.R. No. 207992,
August 11, 2014.
11Originates from jurisprudence, which essentially states, that: Marking after seizure is the starting point
in the custodial link, thus it is vital that the seized contrabands are immediately marked because
succeeding handlers of the specimens will use the markings as reference. This procedure has been
incorporated in the Comprehensive Dangerous Drugs Act of 2002 (RA 9165) and its implementing rules,
including the PNP Manual on Anti-Illegal Drugs Operation and Investigation.

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labeled, nor given an identity when it came into the possession of
PO3 Serohijos, aggravated by the fact that said officer would
expose the said item to switching, whether inadvertently or
not, as he would later on seize another sachet of shabu of
the same quantity with identical packaging, again without
marking the second item and apparently getting the two sachets
mixed-up in the process, as established in the court testimonies of
PO3 Serohijos, as follows:

Direct-examination of PO3 Serohijos by Prosecutor Neferteri


Cristobal [TSN, 2/29/2012, pp. 10-14]:
xxx xxx
Q: And then after that exchanged of sachet of shabu and the P500.00 bill
what happened next if any?
A: I casually stand and went to the door and lit the cigarette to give the
pre-arranged signal for the team member that the transaction was
already consummated.
Q: Where did you stand?
A: At the door Maam of the Videoke Bar.
Q: So what happened next?
A: After I gave them a signal SPO1 Ampong was the one who first arrived
to us and when I saw that SPO1 Ampong is already there I told the
suspect that he is under arrest for selling illegal drugs.
Q: At the time that you stood up and lit a cigarette at the door, where was
the suspect then?
A: Sitting at the table Maam.
Q: Still sitting at the table?
A: Yes Maam, holding a glass of beer.
Q: So after you informed him that he was under arrest for selling an illegal
drug, what happened next if any?
A: He stood up and tried to resist but he was already restrained by SPO1
Ampong and myself and at that time the other team members were
already there.
Q: So what else if any happened during that time?
A: I searched his pockets and recovered the 500 peso bill marked money
at his right pocket.
Q: WHAT ELSE IF ANY DID YOU FIND?
A: ALSO THE OTHER SACHET.
Q: So after the other sachet of shabu and also the marked money what
happened next?
A: We informed him, the accused, that he is under arrest for violation of
R.A. 9165 the dangerous drugs act 2000 and that he has the right to
remain silent and that anything he would say can be used against him in
court, he has the right to look for a counsel if he cannot afford one the
government will be appointed in his own choice.
Q: So after that what happened next?
A: Our team leader Chief Insp. Olaivar decided that we will proceed to
our office to conduct the inventory thereat because the place at the
videoke bar there were customers and maybe the owner would not
agree because he would loss some wages if we would use his premises
that was the judgment call of our team leader.

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Q: SO WHO TOOK CUSTODY OF THE SAID ITEMS THAT YOU FOUND FROM
THE BODY OF THE ACCUSED?
A: I TOOK CUSTODY.
Q: And then when you proceeded at the Camp Francisco Dagohoy what
happened there if any?
A: When we arrived thereat we immediately contacted the barangay
official of the place and the representative of the PDEA and the media.
Q: And then after contacting them what happened next if any?
A: When the said persons arrived we began the inventory of the seized
items.
Q: Then who recorded the inventory of the seized items?
A: PO2 Macua Maam.
Q: So what evidence have you if any that the inventory was conducted?
A: The Seizure/Confiscation Receipt was filled up, Compliance of Inventory
was also filled up and pictures were taken.
xxx xxx
Q: In the Seizure/Confiscation Receipt it appears that the name of PO3 Ben
Gurion Serohijos is the Seizing Officer and above thereon is a signature,
do you know whose signature is it above the name?
A: This is my signature, Maam.
Q: Mentioned in this Seizure/Confiscation Receipt are two (2) pieces
medium sizes cellophane sachet with whit crystalline powder, I have
two (2) pieces of cellophane sachet with white crystalline substance
previously marked as Exhibits L and L-1 for the prosecution, kindly
examine this and tell this Honorable Court what relation has this if any
to the one you mentioned in Seizure/Confiscation Receipt?
A: These are the one Maam.
Q: In these two (2) sachets there are markings including the initial EBC 01
October 28, 2010 and the other sachet the marking in blue ink with
the initials EBC 02 October 28, 2010 and there is also a signature
appearing below said markings in blue ink, DO YOU KNOW WHO
MADE THIS MARKING?
A: PO2 MACUA, MAAM.
Q: YOU MENTIONED EARLIER THAT THE ONE (1) SACHET OF SHABU WAS
GIVEN TO YOU DURING THE TRANSACTION WHEREIN YOU BOUGHT A
SACHET OF SHABU FROM THE SUSPECT, CAN YOU IDENTIFY WHICH
AMONG THESE SACHETS WHICH IS THE OBJECT OF SALE?
A: I CANNOT IDENTIFY BECAUSE THEY LOOK THE SAME AND I FORGOT
BUT IT WAS REFLECTED IN OUR RECEIPT, BUT PHYSICAL I CANNOT
IDENTIFY BECAUSE THE TWO LOOK THE SAME, MAAM.
[Emphases added]
xxx xxx

I cannot identify because they look the same I


cannot identify because the two look the same Crystal clear
from the just-quoted testimony of PO3 Serohijos is the fact that he
did not mark the shabu subject of the sale, for its identification
purposes, immediately right after the buy-bust. As a matter of fact,
PO2 Serohijos categorically admitted in the preceding testimony that
he could not distinguish nor pick out, between the two (2)

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sachets of shabu, the one which he purchased from the
Accused (subject of the sale), and which sachet was the one
he seized after conducting a body search on the Accused. The
high tribunals ruling in People v. Usman 1 2 requires the
identification of the prohibited drug with moral certainty, to wit:

Indeed, as we held in People v. Torres, equally


important in every prosecution for illegal sale of
dangerous or prohibited drugs is the presentation of
evidence of the seized drug as the CORPUS DELICTI. THE
IDENTITY OF THE PROHIBITED DRUG MUST BE PROVED
WITH MORAL CERTAINTY. It must also be established with
the same degree of certitude that the substance bought or
seized during the buy-bust operation is the same item
offered in court as exhibit. [Emphases, italics supplied]

Also worth revisiting is the high courts ruling in People v.


Holgado and Misarez,13 to wit:

The elements that must be established to sustain


convictions for illegal sale of dangerous drugs are settled.
In People v. Morales, this court stated:
In actions involving the illegal sale of dangerous
drugs, the following elements must first be established: (1)
proof that the transaction or sale took place and (2) the
presentation in court of the corpus delicti or the illicit drug
as evidence. [Emphasis added; citations omitted]

Ensuing mistakes would aggravate the serious breach already


committed by PO3 Serohijos as he would also fail to mark the shabu
that he would seize in a subsequent body-search of the Accused.

When PO3 Serohijos found the second sachet of shabu and


then took custody of the two (2) identical sachets without any
labels or distinguishing marks on either of the two items, this created
a gaping hole in the chain of custody of each of the two (2) sachets
of shabu, one of which was the evidence of the instant charge for
illegal sale and the other as evidence for the illegal possession
charge. Worse, the circumstances surrounding the sequence of
events that transpired after the buy-bust further tarnished the
integrity of the confiscated drug when the police team decided to
conduct the inventory in Camp Dagohoy where, upon reaching said
camp, the officers still had to contact the civilian witnesses and wait

12G.R. No. 201100, February 4, 2015.


13G.R. No. 207992, August 11, 2014

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for their arrival before an inventory and marking actually
commenced. PO3 Serohijos would eventually turn-over the two (2)
identical sachets to PO2 Maximo Macua who did the actual markings
on the two items. Apparently, PO3 Serohijos handed the two (2) drug
items all at the same time without a clear distinction as to which item
is subject of the sale, and which item was seized as a result of the
subsequent body-search of the Accused.
REASONABLE DOUBT ARISES AS TO THE IDENTITY OF
THE SHABU PRESENTED AS EVIDENCE, due to these series of
breaches in the custodial chain. Based on this alone, Accused
deserves an acquittal from the instant charges. The Supreme Court,
in People v. Partoza,14 declared the acquittal of the accused due to
failures committed by the officers involved in the post-seizure of
illegal drugs, to wit:

In People v. Obmiranis, appellant was acquitted due


to the flaws in the conduct of the post-seizure custody of
the dangerous drug allegedly recovered from appellant,
taken together with the failure of the key persons who
handled the same to testify on the whereabouts of the
exhibit before it was offered in evidence in court. In
Bondad v. People, this Court held that the failure to
comply with the requirements of the law compromised
the identity of the items seized, which is the corpus delicti
of each of the crimes charged against appellant, hence his
acquittal is in order. And in People v. De la Cruz, the
apprehending team's omission to observe the procedure
outlined by R.A. No. 9165 in the custody and disposition of
the seized drugs significantly impairs the prosecution's
case.
In the instant case, it is indisputable that the
procedures for the custody and disposition of confiscated
dangerous drugs in Section 21 of R.A. No. 9165 were not
complied with. [Emphases supplied; citations in the
original]

Also, in People v. Beran,15 the high court said:

Indeed, the very identity of the subject shabu


cannot be established with certainty by the testimony
alone of P03 Sia since THE RULES INSIST UPON
INDEPENDENT PROOF OF ITS IDENTITY, such as the

14G.R. No. 182418, May 8, 2009.


15 G.R. No. 203028, January 15, 2014.

14
IMMEDIATE MARKING thereof upon seizure. [Emphases
supplied]

During cross-examination, PO3 Serohijos was asked to clarify


this stage of the operation, testifying that:

Cross-examination of PO3 Serohijos by Atty. Aleck Francis T. Lim


[TSN, 4/17/2013, pp. 33-35]:
Q: NOW, CAN YOU HOLD THIS. YOU CONFIRMED TO ME THAT IN THIS
PARTICULAR DOCUMENT SEIZURE/CONFISCATION RECEIPT WHICH
YOU MARKED AS, ITS STILL NO MARKING YOUR HONOR. BUT THERE
IS ATTACHED TO THE RECORD OF THIS CASE YOU WILL CONFIRM TO
ME THAT THE TWO (2) MEDIUM SIZE CELLOPHANE SACHETS DOES NOT
BEAR ANY MARKINGS OR INITIAL?
A: NO, SIR.
Q: NO MARKING OR NO INITIAL, CORRECT?
A: YES, SIR.
Q: You will also likewise confirm that in the other document
COMPLIANCE ON PHYSICAL INVENTORY AFTER SEARCH AND SEIZURE
in THE TWO (2) MEDIUM SIZE SACHET WITH WHITE CRYSTALLINE
POWDER YOU WOULD LIKEWISE CONFIRM THAT THERE IS NO
MARKING OR INITIAL?
A: YES, SIR.
Q: Mr. Witness according to you, you have been involved of many drug
operations, is it not that a Standard Operating Procedure pursuant
Section 21, Article 2 of Republic Act 9165 that there must be
immediate marking on the drugs which was allegedly seized, correct?
A: Yes, Sir.
Q: BUT IN THIS PARTICULAR TWO (2) DOCUMENTS YOU WILL AGREE
WITH ME THAT THE MARKINGS ON THE ALLEGED ITEMS OF SACHETS
SEIZED ARE NOT INDICATED?
WITNESS:
At that time, Sir?
ATTY. LIM:
YES.
Q: ARE NOT INDICATED?
A: YES.
Q: SO, IN EFFECT YOU HAVE NO DOCUMENTARY PROOF THAT THERE WAS
INDEED MARKING IMMEDIATE MARKING THAT WAS MADE ON THE
ALLEGED SACHETS THAT YOU ARE TALKING NO DOCUMENTARY
PROOF?
A: NO.
Q: NO DOCUMENTARY PROOF?
A: YES, SIR.
COURT:
AS TO THE MARKING?
ATTY. LIM:
NO DOCUMENTARY PROOF.
Q: Because when we talked about the inventory there are two (2)
important aspects in the inventory, correct?
A: Yes.

15
Q: THERE MUST BE IMMEDIATE MARKING ON THE DRUG OR SACHET
RECOVERED AFTER THAT THERE BE A LISTING OF ALL THOSE ITEMS
THAT WERE RECOVERED, CORRECT?
A: YES.
Q: And that you also aware of Section 21 a, Article 2 of Republic Act
9165?
A: Yes, Sir.
Q: And in that law its very clear there was immediate inventory on the
items seized, correct?
A: Yes. xxx xxx [Capitalization and underscoring for emphasis]
The preceding testimonies of the poseur-buyer who also
assumed the role of a seizing officer (PO3 Serohijos) is a clear
confession that the shabu subject of the sale, and the shabu
confiscated in a consequent body-search did not bear identifying
marks before these were turned over to PO2 Macua by PO3
Serohijos, the officer who had initial custody of said items. Evidently,
the markings on said items were only done during the inventory at
Camp Dagohoy together with all the other items that were allegedly
confiscated from Accused in a subsequent body-search. The Supreme
Courts ruling in People v. Orteza,16 finds applicability to the case at
bar, to wit:

More recently, in Zarraga v. People, the Court held that


the material inconsistencies with regard to when and where
the markings on the shabu were made and the lack of
inventory on the seized drugs CREATED REASONABLE DOUBT
AS TO THE IDENTITY OF THE CORPUS DELICTI. The Court thus
acquitted the accused due to the prosecutions failure to
indubitably show the identity of the shabu. [Emphases added;
citations in the original]

The Supreme Court specifically established jurisprudence that


has been adopted in police manuals on anti-illegal drug operations
that require the immediate marking of seized drug-items, especially
when police operatives are involved or are dealing with multiple
drug-operations such as a buy-bust preceding an implementation of
search warrant[s], as the tribunals ruling in Beran,17 instructs, thus:

Concerning the marking of evidence seized in a buy-bust


operation OR under a search warrant, vis--vis the physical
inventory and photograph, IT MUST BE NOTED THAT THERE
ARE DISTINCTIONS AS TO TIME AND PLACE under Section 21 of
R.A. No. 9165. Thus, whereas in seizures covered by search
warrants, the physical inventory and photograph must be
conducted in the place of the search warrant, in warrantless
16Supra note 1, G.R. No. 173051.
17 Supra note 13, G.R. No. 203028.

16
seizures such as a buy-bust operation the physical inventory
and photograph shall be conducted at the nearest police
station or office of the apprehending officer/team, whichever is
practicable, consistent with the chain of custody rule. IT
NEEDS NO ELABORATION THAT THE IMMEDIATE MARKING OF
THE ITEM SEIZED IN A BUY-BUST OPERATION IN THE PRESENCE
OF THE ACCUSED IS INDISPENSABLE TO ESTABLISH ITS IDENTITY
IN COURT. Here, none of the buy-bust team attested that they
saw P03 Sia take custody of the confiscated shabu, and later
mark the sachet at the DAID-WPD office. EVEN GRANTING
THAT P03 SIA DID MARK THE SAME SACHET AT THE PRECINCT,
BREAKS IN THE CHAIN OF CUSTODY HAD ALREADY TAKEN
PLACE, FIRST, WHEN HE CONFISCATED IT FROM BERAN
WITHOUT ANYONE OBSERVING HIM DO SO AND WITHOUT
MARKING THE SUBJECT SACHET AT THE PLACE OF
APPREHENSION, AND THEN AS HE WAS TRANSPORTING IT TO
THE PRECINCT, THUS CASTING SERIOUS DOUBT UPON THE
VALUE OF THE SAID LINKS TO PROVE THE CORPUS DELICTI.
Moreover, the records also show that P03 Sia submitted the
sachet to the laboratory only on the next day, without
explaining how he preserved his exclusive custody thereof
overnight.
Xxx xxx .
The chain of custody rule requires that there be
testimony about every link in the chain, from the moment the
object seized was picked up to the time it was offered in
evidence, in such a way that every person who touched it
would describe how and from whom it was received, where it
was and what happened to it while in the possession of the
witness, the condition in which it was received and the
condition in which it was delivered to the next link in the
chain.

In fact, all three (3) documentary evidences pertaining to the


handling of the two (2) sachets of shabu, namely: (1)Seizure and
Confiscation Receipt, (2)Compliance on Physical Inventory
After Search and Seizure, and (3)PNP Crime Laboratory Report
No. D-151-2010, all bear material defects which further cast a dark
cloud of doubt on the identity of the two sachets of shabu presented
as evidence by the Prosecution, which further proves the fact that
the operatives failed to preserve its integrity and evidentiary value, as
more specifically discussed hereunder:

(1) The document labeled SEIZURE AND CONFISCATION


RECEIPT is not a truthful, reliable and accurate

17
record of the custodial movements of the items
seized. The sachet of shabu supposedly purchased from
Accused and subject of the buy-bust (including the
marked-money) should have been recorded in a separate
custodial sheet or receipt as this item required distinct
recording procedures aside from the fact that this item
was purchased not seized, and more importantly, it
came into possession of the officer designated as poseur-
buyer before the rest of the items that were seized in a
subsequent body-search of the Accused. Therefore, said
item had a different starting point in the custodial
chain. Recording said item together with the other
seized evidence not subject of the buy-bust
generates a gap in the custodial chain. More so, that
the officers still had to wait for the inventory and marking
to take place until the arrival of civilian witnesses, adding
to the fact that PO3 Serohijos failed to mark either of the
two (2) sachets. On close inspection of the assailed
document, it is clear that the two (2) sachets of shabu
were even RECORDED AS ONE (1) SINGLE ENTRY,
clearly indicating that no distinction nor
distinguishing marks were ever made on these two
(2) items. The possibility that the two (2) sachets of
shabu seized may have been mixed-up, wrongly
attributed either as evidence of the buy-bust or of
the illegal possession charge, or even substituted,
altered, or tampered, either by accident or
otherwise, cannot be ruled out, notably because the
two (2) items have a similar description, the same
size, the same quantity with the same packaging.
As a result of which, the poseur-buyer/seizing
officer (PO3 Serohijos) could not identify in open
court which is which when asked by Prosecutor
Cristobal to pick-out which among the two (2)
sachets was the one that Accused allegedly sold to
him. Moreover, the name of the recording officer, PO2
Macua, is nowhere in said document, which is signed
instead by PO3 Serohijos when in truth and in fact, it was
PO2 Macua who made the markings on the items and he
was also the one who made its entry into the seizure
receipt. More importantly, the document would not prove
that there was a proper turn-over by the seizing officer
(PO3 Serohijos) to the recorder/custodian (PO2 Macua). In
fact, this document [Seizure and Confiscation Receipt ]
would establish the fact that there was only one
inventory and marking conducted, and it is clear

18
that this inventory and marking was inclusive of
whatever items were seized during the buy-bust
and the subsequent body-search. Regardless, this
inventory should be discredited as it is unreliable.
This alone should warrant the dismissal of the
instant charges against the Accused.

(2) Similarly, the document titled COMPLIANCE ON


PHYSICAL INVENTORY AFTER SEARCH is not a
truthful, accurate and reliable record of the
custodial movements of the two (2) sachets of
shabu simply because both items were recorded as
one (1) single entry in this document despite the
fact that each item came into the custodial chain at
different points in time. The shabu from the buy-bust
(and the marked-money) should have been recorded in a
separate turn-over sheet as this item entered the chain of
custody much ahead of the rest of the items. On close
scrutiny of this document, it is clear that, again, the
possibility that the two (2) sachets of shabu seized may
have been mixed-up, wrongly attributed either as evidence
of the buy-bust or of the illegal possession charge, or even
substituted, altered, or tampered, either by inadvertence or
otherwise, cannot be ruled out, notably because the two
(2) items have a similar description, the same size,
the same quantity and the same packaging.
Moreover, the name of the recording officer, PO2 Macua, is
nowhere in said document, which further proves no proper
recording was made as to the handlers of the items seized.
The document would not prove that there was a proper
turn-over by the seizing officer (PO3 Serohijos) to the
recorder/custodian (PO2 Macua). In fact, this document
[Compliance on Physical Inventory After Search and
Seizure] would establish the fact that there was only one
inventory and marking conducted, and it is clear that this
inventory was inclusive of whatever items were seized
during the buy-bust and the subsequent body-search.
Regardless, this inventory should be discredited as it is
unreliable.

(3) The documentary evidence titled: PNP Crime


Laboratory Report No. D-151-2010, would further
discredit the Prosecutions case as it further uncovers
BROKEN LINKS in the chain of custody of the alleged
seized items. In said crime laboratory report, it is clear that

19
the two (2) sachets of shabu were again submitted
altogether for analysis without any clear distinction
as to its identity and that these were examined at the
same time and its results entered in one (1) single
chemistry report. For all intents and purposes, the
said document should be discredited for being
unreliable as it is inaccurate as to the identity of the
two (2) sachets/specimen examined, and later on
presented as evidence by the Prosecution.

The two (2) sachets of shabu automatically became


susceptible to switching and substitution, whether
intentionally or not, once it both came into custody of the
same police officer who did not adhere to the rule on
marking of seized drugs immediately upon its seizure. The
inevitable conclusion would be that the integrity and
evidentiary value of the seized items have been seriously
compromised. At this juncture, it is worth citing the Supreme
Courts discussion in People v. Holgado and Misarez,18 to wit:

Xxx. As this court stated in People v. Lorenzo:


In both illegal sale and illegal possession of
prohibited drugs, 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.
The prosecutions sweeping guarantees as to the
identity and integrity of seized drugs and drug
paraphernalia will not secure a conviction. Not even the
presumption of regularity in the performance of official
duties will suffice. In fact, whatever presumption there is
as to the regularity of the manner by which officers took
and maintained custody of the seized items is negated.
Republic Act No. 9165 requires compliance with Section
21.
Even the doing of acts which ostensibly approximate
compliance but do not actually comply with the
requirements of Section 21 does not suffice. In People v.
Magat, for instance, this court had occasion to emphasize

18Supra note 11, G.R. No. 207992.

20
the inadequacy of merely marking the items supposedly
seized: Marking of the seized drugs alone by the law
enforcers is not enough to comply with the clear and
unequivocal procedures prescribed in Section 21 of R.A.
No. 9165.
The exactitude which the state requires in handling
seized narcotics and drug paraphernalia is bolstered by the
amendments made to Section 21 by Republic Act No.
10640. Section 21(1), as amended, now includes the
following proviso, thereby making it even more stringent
than as originally worded:
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:
In People v. Nandi, this court explained that four (4)
links should be established in the chain of custody of the
confiscated item: 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.
In Nandi, where the prosecution failed to show how
the seized items were handled following the actual seizure
and, thereafter, turned over for examination, this court
held that the accused must be acquitted:
After a closer look, the Court finds that the linkages in
the chain of custody of the subject item were not clearly
established. As can be gleaned from his aforequoted
testimony, PO1 Collado failed to provide informative
details on how the subject shabu was handled
immediately after the seizure. He just claimed that the
item was handed to him by the accused in the course of
the transaction and, thereafter, he handed it to the
investigator.
Xxx. Xxx. Xxx.
In this case, the defense points out that all that the
prosecution claimed, with respect to the handling of the
sachet supposedly handed by Misarez to PO1 Aure, was

21
that PO1 Aure supposedly marked it RH-PA at the scene
of the buy-bust operation.
While the buy-bust operation team allegedly
conducted an inventory of the seized items, it is unclear if
this inventory was limited to those seized pursuant to the
enforcement of the search warrant (i.e., after the conduct
of the buy-bust operation) or was inclusive of whatever
items seized during the buy-bust operation. In any case,
this inventory was discredited as Holgado was acquitted by
the Regional Trial Court of the charge of illegal possession
of drug paraphernalia because the inventory was found to
be unreliable vis-a-vis the testimony of PO2 Castulo. The
paraphernalia to which PO2 Castulo testified to in court
were different from those indicated in the inventory
supposedly made when the search warrant was
enforced.[Emphases added; Citations in the original]

In a long line of cases, the Supreme Court has reiterated that


while a perfect chain of custody is almost always impossible to
achieve, an unbroken chain becomes indispensable and essential in
the prosecution of drug cases owing to its susceptibility to alteration,
tampering, contamination and even substitution and exchange. A
case in point is the Supreme Courts ruling in People v. Leonard
Bernardino,19 as follows:

WE CANNOT OVERLOOK THIS EVIDENTIARY GAP AS IT


INVOLVES THE IDENTIFICATION OF THE SHABU ALLEGEDLY
SOLD, AS DISTINGUISHED FROM THE SHABU FOUND IN
THE ACCUSED-APPELLANTS POSSESSION.
The lack of segregation between these pieces of
evidence for the two different crimes charged is also very
evident from an examination of the markings in the plastic
sachets of shabu seized from the accused-appellant and
the identification of the examined specimens in the Initial
Laboratory Report and Chemistry Report No. D-604-96.
NOWHERE IS THE SHABU SOLD SPECIFICALLY SINGLED OUT
AS THE SPECIMEN FOR THE CRIME OF ILLEGAL SALE
OFSHABU. Thus, while forensic chemist Babor duly
identified and gave the results of the examinations she
made, her testimony merely referred to the specimens
submitted by SPO2 Cadiz and could not have separately
referred to the shabu illegally possessed and that illegally
sold. From this perspective, no clear specific link exists
between the examined specimen and the shabu allegedly
19G.R. No. 171088, October 2, 2009.

22
sold at the buy-bust except by inference an exercise that
cannot be done in the absence of specific testimony
identifying the shabu sold. This evidentiary situation
effectively translates to the absence of proof of corpus
delicti, and cannot but lead us to conclude that no valid
conviction for the crime of illegal sale of shabu can result.
[Emphases, italics added; Citations in the original]

In these instant cases, several chain links were broken in


the custody of the two (2) sachets of shabu as established
through the outright confession from the poseur-buyer and
seizing officer (PO3 Serohijos) when he testified during trial as
to his failure to mark either of the two (2) sachets of shabu.
Even the Prosecutions documentary evidence support this implicit
admission of serious breaches in the handling of the drug items
seized, as threshed out in the preceding discussions [ (1)Seizure and
Confiscation Receipt, (2)Compliance on Physical Inventory After
Search and Seizure, and (3)PNP Crime Laboratory Report No. D-151-
2010 ]. Moreover, no other testimony from the other police-witnesses
or documentary evidences would overturn such admitted breaches
that would attest to the integrity in the handling of subject shabu.

With the identity of the corpus delicti not established by the


Prosecution, Accused therefore deserves an acquittal as the high
tribunals ruling in People v. Coreche,20 is also a fitting example in
these instant cases:

Crucial in proving chain of custody is the marking of the


seized drugs or other related items immediately after they are
seized from the accused. 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 specimens 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 criminal proceedings, obviating switching, planting, or
contamination of evidence. [Emphases added]
Long before Congress passed RA 9165, this Court has
consistently held that failure of the authorities 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

20G.R. No. 182528, August 14, 2009.

23
duties, the doctrinal fallback of every drug-related
prosecution. Thus, in People v. Laxa and People v. Casimiro,
we held that the failure to mark the drugs immediately after
they were seized from the accused casts doubt on the
prosecution evidence, warranting acquittal on reasonable
doubt. These rulings are refinements of our
holdings in People v. Mapa and People v. Dismuke that doubts
on the authenticity of the drug specimen occasioned by the
prosecutions failure to prove that the evidence submitted for
chemical analysis is the same as the one seized from the
accused suffice to warrant acquittal on reasonable doubt.
[Emphases, italics added; citations in the original]

CONTRARY TO THE RULE UNDER


SECTION 21, R.A. 9165 THE
CONFISCATED SACHETS OF SHABU
WERE NOT IMMEDIATELY
INVENTORIED AND/ OR
PHOTOGRAPHED UPON ITS SEIZURE.

Under Section 21, Article II of R.A. 9165, it is imperative


that the police operatives make a physical inventory and photograph
the seized articles immediately upon its discovery, seizure and
confiscation, in the presence of the accused or his representative or
counsel, a representative from the media and the DOJ, and any
elected public official, among others. In the instant case, there is a
categorical admission from the police-witnesses during trial that they
did not comply with the inventory and photograph requirements.

In fact, the only photographs submitted in evidence by the


Prosecution are photographs during the inventory-taking and the
subsequent signing of the inventory receipt by the officers and the
civilian witnesses which was done at Camp Dagohoy, not at the
videoke bar where the supposed buy-bust was conducted. As a
matter of fact, whatever photographs the Prosecution has offered in
evidence cannot be given weight and credence because the
authenticity of which were never proven in court by the police officer
who allegedly took them.

No less than the Prosecutions police-witnesses admitted the


same. PO3 Serohijos, the designated poseur-buyer, testified as
follows:

24
Cross-examination of PO3 Serohijos by Atty. Aleck Francis Lim
[TSN, 4/17/2013, pp. 31-32]:
xxx xxx
Q: Now, you will also confirm the fact that the no inventory was
conducted at the place where the alleged items were recovered?
A: Yes.
Q: No inventory was conducted?
A: Yes, Sir.
Q: You were also confirm that fact that the lady or the manager or the
owner of the KTB bar did not prevent you from holding the Inventory
at the place were the accused was arrested, correct?
A: Yes, Sir did not prevent me.
Q: But no one prevented you from conducting an Inventory at the place
where the items was allegedly seized?
A: Yes.
Q: Yes, what, no one prevented you?
A: Yes, Sir no one prevented me.
Q: Of course you identified this Inventory Receipt and Compliance?
A: Yes, Sir.
Q: All these according to you were done at the?
A: At the office.
Q: At the office of Camp Dagohoy, correct?
A: Yes, Sir. [Emphasis added]
xxx xxx

Similarly, SPO1 Ampong also testified that:

Cross-examination of SPO1 Ampong by Atty. Aleck Francis Lim


[TSN, 6/25/2013, p. 18]:
xxx xxx
Q: Now, you would also confirm that no inventory whatsoever was
conducted at the place where the alleged buy bust operation was
conducted, correct?
A: It was made only in our office when the inventory was conducted.
Q: In fact no one prevented you from conducting any inventory at the
place where the alleged buy bust operation was conducted, correct?
A: No one.
Q: Yes, no one prevented you, correct?
A: Yes, no one prevented us.
Q: Now you said that the inventory was conducted at you office at Camp
Dagohoy, correct?
A Yes. xxx xxx [Emphasis added]
xxx xxx

Most importantly, there are no markings of the items indicated


in the Seizure/Confiscation Receipt and Compliance in Physical
Inventory after Seizure/Search. To recall PO3 Serohijos testimony,
thus:

25
Cross-examination of PO3 Serohijos by Atty. Aleck Francis Lim
[TSN, 4/17/2013, pp. 33-35]:
xxx xxx
Q: Now, can you hold this. You were confirmed to me that in this particular
document Seizure/Confiscation Receipt which you marked as, its still
no marking Your Honor. But there is attached to the record of this case
you will confirm to me that the two (2) medium size cellophane sachets
does not bears any markings or initial?
A: No, Sir.
Q: No marking or no initial, correct?
A: Yes, Sir.
Q: You will also likewise confirm that in the other document Compliance
on Physical inventory after search and seizure in the two (2) medium
size sachet with white crystalline powder you would likewise confirm
that there is no marking or initial?
A: Yes, Sir.
Q: Mr. Witness according to you, you have been involved of many drug
operations, is it not that a Standard Operating Procedure pursuant
Section 21, Article 2 of Republic Act 9165 that there must be immediate
marking on the drugs which was allegedly seized, correct?
A: Yes, Sir.
Q: But in this particular two (2) documents you will agree with me that the
markings on the alleged items of sachets seized are not indicated?
WITNESS:
At that time, Sir?
ATTY. LIM:
Yes.
Q: Are not indicated?
A: Yes.
Q: So, in effect you have no documentary proof that there was indeed
marking immediate marking that was made on the alleged sachets that
you are talking no documentary proof?
A: No.
Q: No documentary proof?
A: Yes, Sir.
COURT:
As to the marking?
ATTY. LIM:
No documentary proof.
Q: Because when we talked about the inventory there are two (2)
important aspects in the inventory, correct?
A: Yes.
Q: There must be immediate marking on the drug or sachet recovered
after that there be a listing of all those items that were recovered,
correct?
A: Yes.
Q: And that you also aware of Section 21 a, Article 2 of Republic Act 9165?
A: Yes, Sir.
Q: And in that law its very clear there was immediate inventory on the
items seized, correct?
A: Yes.
Q: You also have attended seminars, correct?

26
A: Yes.
Q: In that seminar specifically the lecturers are saying all over again that
the marking must be done at the place where the said items were
allegedly seized, correct?
A: As much as possible, sir.
xxx xxx

As pointed out in the preceding discussions, the failure of the


poseur-buyer and seizing officer (PO3 Serohijos) to mark the
two (2) similar/identical sachets of shabu, one of which was
the subject of the sale and the other confiscated in a
consequent body-search of the Accused, before turning it
over to the recording officer/custodian (PO2 Macua), already
created a cloud of doubt as to whether the said
identical/similar two (2) sachets of shabu that entered into
the chain were actually the ones submitted for laboratory
analysis and consequently tendered in evidence by the
Prosecution. Briefly stated, the Prosecutions police-witnesses failed
to ensure or preserve the authenticity and the evidentiary value of
the items seized. On filing these instant cases, therefore, the officers
merely made an insinuation with regards the sachets of shabu used
in evidence of the crimes charged as aptly stated in De La Cruz,21 a
case similarly involving a buy-bust, wherein the Supreme Court ruled:

It is essential that the prohibited drug confiscated or


recovered from the suspect is the very same substance
offered in court as exhibit; and that the identity of said
drug be established with the same unwavering exactitude
as that requisite to make a finding of guilt. This, the
prosecution failed to do. The prosecution must offer the
testimony of key witnesses to establish a sufficiently
complete chain of custody. [Emphasis, underscoring,
citations in the original]

As established in the above-quoted court testimonies of the


Prosecutions very own police-witnesses, it is clear enough that the
police team did not comply and/or properly observe the procedures
as stipulated in Section 21 of R.A. 9165, to wit:

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

21G.R. No. 185717, June 8, 2011.

27
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. [Italics, emphases added]

From the just-quoted court testimonies of the police-witnesses,


it is clear that said officers deviated from the mandated procedures

28
under Section 21 of R.A. 9165 and its IRR, including their very own
PNP Manual on Anti-Illegal Drug Operations and Investigation, 22
which demands strict adherence to the rules on the handling and
custody of seized illegal drug and other non-drug evidence:

2.34 Photographs of pieces of evidence must be taken


immediately upon discovery of such, without moving or
altering its original position including the process of
recording the inventory and the weighing of illegal drugs in
the presence of required witnesses, as stipulated in Section
21, Art II, RA 9165, as amended by RA 10640.
2.35 The Seizing Officer must mark the evidence with his
initials indicating therein the date, time and place where the
evidence was found/recovered or seized.
xxx xxx xxx
2.38 In every negation operation, a Seizing Officer
shall be designated who would be responsible for the
inventory and initial custody of all drug and non-drug
evidence confiscated during the anti-illegal drugs operations.
All these would later be turned over to the Investigation Officer
or any member of the apprehending team, and submitted to
the PDEA Laboratory Service or Crime Laboratory for further
examination and proper disposition.
2.39 xxx.
a. Drug Evidence.
1) Upon seizure or confiscation of illegal drugs or
CPECs, laboratory equipment, apparatus and
paraphernalia, the operating Units Seizing
Officer/Inventory Officer must conduct the physical
inventory, markings and photograph the same in the
place of operationin the presence of:
(a) The suspect/s or the person/s from whom such
items were confiscated and/or seized or his/ her
representative or counsel;
(b) With an elected Public Official; and
(c) Any representatives from the Department of
Justice or Media who shall affix their signatures
and who shall be given copies of the inventory.
[Emphases supplied]

Moreover, under the same PNP Manual, 23 strict observance to


the Chain of Custody rule is likewise mandated, as follows:

22 2010 Edition, published by the PNP Anti-Illegal Drugs Special Operations Task Force.
23 Id. 2010 AIDSOTF.

29
c. Chain of Custody.
1) The Seizing Officer must preserve the integrity and
evidentiary value of all evidences.
2) Persons handling drug evidence from the time of its
seizure/confiscation should be limited to the Seizing
Officer, the Investigator-On-Case and PDEA
Laboratory Service or PNP Laboratory personnel. All
non-drug evidence shall be turned-over to the
evidence custodian.
3) An acknowledgement receipt shall be issued by the
person receiving the evidence. Such receipt shall
form part of the case folder of the transmitting Unit.
4) The Seizing Officer shall accomplish the Chain of
Custody Form and with it, submits the evidence to
the PNP Crime Laboratory for examination.
[Emphases, italics supplied]

As can be gleaned from the court testimonies of the


police-witnesses and the documentary evidences offered by
the Prosecution, there is no justification in writing from any
member of the police team for the non-observance of the
rule in order to prove that the integrity and evidentiary value
of the seized items are not tainted. This deviation from the
rule alone already creates a gap in the determination of
whether or not the alleged shabu that entered into the chain
were actually the ones examined by the crime laboratory and
offered in evidence.

All told, the identities of the corpus delicti in these instant cases
were not proven beyond reasonable doubt by the Prosecution.

III.

THE POLICE-OFFICERS NON-COMPLIANCE


WITH THE RULES IN THE SEIZURE AND
CUSTODY OF PROHIBITED DRUGS MAKES
THE PRESUMPTION OF REGULARITY IN THE
PERFORMANCE OF DUTIES UNAVAILABLE.

The disputable presumption that official duty has been regularly


performed should not hold in favor of the police officers involved
since they have clearly violated the exactitudes mandated under

30
Section 21 of R.A. 9165.24 As the high tribunal pronounced in
People v. Guzon,25 whereby it held that flagrant lapses or serious
breaches against the mandated requirements under Section 21 of
RA 9165 effectively negates the presumption of regularity
in the performance of the police officers duties, as any taint
of irregularity affects the whole performance and should
make the presumption unavailable. In the case of People v.
Go,26 the Supreme Court held:

Since no presumption of regularity may be


invoked by an officer to justify an encroachment of
rights secured by the Constitution, xxx, a strict
interpretation of the constitutional, statutory and
procedural rules authorizing search and seizure is
required and strict compliance therewith is
demanded. [Emphasis ours]

It is worth stressing that Deviation from the standard


procedures in anti-narcotics operation renders the testimony of the
arresting officers INCREDIBLE for IMPROPER PERFORMANCE of
duty.27 It makes the drug operation NOT JUDICIALLY
SANCTIONED for being violative of legal safeguards against illegal
arrest. Lastly, the MANDATORY PROCEDURES IN DRUG
OPERATION should be STRICTLY complied with; otherwise, the
accused is entitled to DISMISSAL or ACQUITTAL.28 The
RATIONALE is stated by the EXHORTATION of the Supreme
Court, thus:

Drug addiction is one of the most pernicious evils that


have ever crept into our society; Equally reprehensible is
the police practice of using the law as a tool in extorting
money from hapless victims. (People vs. Wu Tuan Yuan,
422 SCRA 182)
The Court is not unaware that in some instances law
enforcers resort to the practice of planting evidence to
extract informations or even to harass civilians-the court
24 Supra note 21, G.R. No. 185717.
25 G.R. No. 199901, Oct. 9, 2013; also People v. Polizon, G.R. No. 84917, Sept. 18, 1992, 214 SCRA 56.
26 G.R. No. 144639, September 12, 2003.
27 People vs. Dulay, 423 SCRA 652.
28 People vs. Ong, et al., 484 SCRA 470, 484-486 G.R. No. 137348, June 21, 2004; People vs. Kimura, et al.
428 SCRA 51, G. R. No. 130805, April 27, 2004; Zarraga vs. People, 484 SCRA 647, 650, March 14, 2006;
People vs. Arsenio Vergara Valdez, G.R. No. 170180, November 23, 2007; People vs. Salvador Santos, Jr.
Y Salvador, G.R. No. 175593, October 17, 2007; People vs. Allan Nazareno Y Caburatan, G.R. No.
174771, September 11, 2007; People vs. Gerardo Orteza , G.R. No. 173051, July 31, 2007; People vs.
Omar Akmad, Et al., CA-G.R. CR No. 02732, April 14, 2008; People vs. Randy Cabalfin Y Aquines And
Solomon Tagle Y Alarde, CA-G.R. CR No. 30302, January 22, 2008 and People vs. Ting Hadjirul Y Mudjah,
CA G.R. CR No. 02266, January 16, 2008.

31
must then be extra vigilant in trying drug cases lest an
innocent person is made to suffer the unusually severe
penalty for drug offences. (People vs. Sevilla, 339 SCRA
625)
For the courts could not merely rely on but must
apply with studied restraint the presumption of regularity in
the performance of official duty by law enforcement agents.
This presumption should not by itself prevail over the
presumption of innocence and the constitutionally
protected rights of the individual. It is the duty of the
courts to preserve the purity of their own temple from the
prostitution of the criminal law through lawless
enforcement. Courts could not allow themselves to be
used as instruments of abuse and injustice lest innocent
persons are made to suffer the unusually severe penalties
for drug offenses. (People vs. Ong, Et al., G.R. No. 137348,
June 21, 2004)
xxx. The governments drive against illegal drugs
deserves everybodys support. But it is precisely when the
governments purposes are beneficent that we should be
most on our guard to protect these rights. As Justice
Brandeis warned long ago, the greatest dangers to liberty
lurk in the insidious encroachment by men of zeal, well
meaning but without understanding, Our desire to stamp
out criminality cannot be achieved at the expense of
Constitutional rights, x x x. (People vs. Pedronan, 404
SCRA 183, 192)

Hence, the ADMONITION of the Supreme Court, to wit:

Trial courts are admonished to always require


precise and convincing testimony in cases involving buy-
bust operations. (People v. Cruz, 215 SCRA 339)
Courts must be extra-vigilant in trying drugs cases
lest an innocent person is made to suffer the unsually
severe penalties for drug offenses. (People v. William, 209
SCRA 808)(Lozano, DEFENSES and TECHNIQUES, 2 nd Edition,
pp. 253 to 254)

IV.

LASTLY, ALL THE FOREGOING CLEARLY


SHOW THAT THE PROSECUTION MISERABLY

32
FAILED TO PROVE THE GUILT OF HEREIN
ACCUSED BEYOND REASONABLE DOUBT.

No less than the 1987 Constitution guarantees the right of


every Accused to be presumed innocent until the contrary is proved. 29
To overcome this Constitutional presumption, nothing but proof
beyond reasonable doubt must be established by the
prosecution. And unless the prosecution successfully discharges
this burden, the Accused need not even offer evidence in his behalf.
As held by the Supreme Court in People v. Comesario:30

First. An accused enjoys the presumption of


innocence. He need not prove what is legally presumed. If
he so desires he may present evidence on his behalf, but
no matter how weak it is, he still deserves an acquittal.
This is because the prosecution must not rely on the
weakness of the evidence for the defense but on the
strength of its own evidence. Unless the prosecution has
successfully overturned the presumption of innocence,
acquittal is inevitable.
Second. The guilt of the accused must be proved
beyond reasonable doubt. There must be moral certainty
in our unprejudiced mind that it was accused-appellant
who committed the crime. Absent this required quantum
of evidence would mean exoneration for accused-
appellant. The conviction of accused-appellant having
been based on very tenuous grounds, our judicial
conscience cannot rest easy if we should sustain his
conviction by the court below.
Third. Mere proof of motive, no matter how strong, is
not sufficient to support a conviction, most especially if
there is no other reliable evidence from which it may
reasonably be deduced that the accused was the
malefactor. 5 The elements constituting the crime must be
shown.
xxx xxx xxx
Last. We are not implying that accused-appellant did
not commit the crime. All we are saying is that when
measured against the required quantum of evidence in
criminal cases, the case for the prosecution has miserably
failed in all aspects. Simply put, if we are to be guided by
the established rules of evidence, we can safely say that
the guilt of accused-appellant was not proved beyond
29 14(2), Article III, CONSTITUTION.
30 G.R. No. 127811, April 29, 1999.

33
reasonable doubt. We find occasion then to reiterate what
we have said in People v. Masalihit:
Before we condemn . . . the crime must first be
positively established and that the accused is guilty sans
any scintilla of doubt. This is elementary and fundamental
in our criminal justice system. Any suspicion or belief that
that accused is guilty no matter how strong cannot
substitute for the quantum of evidence that is required to
prove his guilt beyond reasonable doubt.
Accused-appellant should not be punished for the
failure of the prosecution to dispose of its burden to
overcome the constitutional presumption of innocence
and to establish his guilt of the accused beyond
reasonable doubt. This Court has always stood by the rule
that it is better to acquit a guilty person than to convict an
innocent one. [Underscoring added]

Similarly, in the case of People v. Baulite,31 it was held that:

In our criminal justice, the overriding consideration is


not whether the court doubts the innocence of the accused
but whether it entertains a reasonable doubt as to his
guilt. Where there is reasonable doubt as to the guilt of
the accused, he must be acquitted even though his
innocence may be doubted since the constitutional right to
be presumed innocent until proven guilty can only be
overthrown by proof beyond reasonable doubt.
In conclusion, because of reasonable doubt as to the
guilt of the accused-appellant, they must be acquitted.
"Every accused is presumed innocent until the contrary is
proved; that presumption is solemnly guaranteed by the
Bill of Rights. The contrary requires proof beyond
reasonable doubt, or that degree of proof that produces
conviction in an unprejudiced mind. Short of this, it is not
only the right of the accused to be freed; it is even the
constitutional duty of the court to acquit them.
[Emphases added]

Furthermore, in Arce v. People and CA,32 the Supreme Court


stressed that:

Conviction based merely on speculation and


conjecture cannot satisfy the question of evidence
31 G.R. No. 137599, October 8, 2001.
32 G.R. No. 125857, March 20, 2002.

34
required for a pronouncement of guilt, i.e. proof beyond
reasonable doubt of his complicity in the crime. It is
incumbent upon the prosecution to establish its case with
that degree of proof which produces conviction in an
unprejudiced mind, with evidence which stands or falls on
its merits, and which cannot be allowed to draw strength
from the weakness of the evidence for the defense. Unless
it discharges the burden of proving the guilt of the
accused beyond reasonable doubt, the latter need not
even offer evidence in his behalf. Thus, when the guilt of
the accused has not been proven with moral certainty,
such as the case at bar, it is a policy of long standing that
the presumption of innocence of the accused must be
favored and his exoneration be granted as a matter of
right.
The presumption of innocence of an accused is a
substantial part of the law founded upon a great principle
of justice that cannot be balanced out merely by
conjecture or by probability. The heavy burden of
overcoming this presumption rests on the prosecution, and
unless it succeeds in proving by satisfactory evidence the
guilt of the accused, the constitutional mandate of
innocence prevails. [Emphases added]

CONCLUSION

In closing, the failure of the Prosecution and its police-


witnesses to portray a believable picture of a buy-bust operation,
through its failure to establish the existence and/or the identity of the
asset who assisted the poseur-buyer, the failure to present material
proof that a drug-transaction had actually transpired, and the failure
to establish the identities of the corpus delicti of the crimes charged;
and the failure of the officers to comply with the mandatory
requirements of Sec. 21 of R.A. No. 9165, through their failure of the
prosecution to establish an unbroken chain of custody over the seized
shabu, and the failure of the arresting officers to follow and comply
with their own PNP Manual on Anti-Illegal Drugs Operation and
Investigation all show that indeed, the Prosecution miserably failed
to prove the guilt of herein Accused beyond reasonable doubt.
Consequently, it is not only the right of herein Accused but also, the
constitutional duty of this Honorable Court to ACQUIT herein
Accused of the crimes charged.

PRAYER

35
WHEREFORE, in view of the foregoing premises, it is most
respectfully prayed of this Honorable Court that herein Accused be
ACQUITTED of the crimes charged.

Other reliefs, just and equitable under the premises, are


likewise prayed for.

City of Tagbilaran, August 26, 2016.

ATTY. ALECK FRANCIS T. LIM


Counsel for Accused
137 (35) F. Rocha St., Tagbilaran City, Bohol
Tel. No. (038) 412-3488 / 501-7144
IBP Lifetime Roll No. 05310
PTR No. 9332629; 01/04/2016
Attorneys Roll No. 50147, TIN 939 849 571
MCLE Compliance No. IV-0004901; 03-07-12
MCLE Compliance No. V-0011578; 11-02-15

Copy Furnished:

Pros. Mary Lyn T. Enerlas-Aora


City Prosecutors Office Received by: ____________
Hall of Justice, Tagbilaran City Date: ________________

36