Republic of the Philippines

REGIONAL TRIAL COURT

Third Judicial Region
BRANCH 8
Malolos City, Bulacan

PEOPLE OF THE PHILIPPINES

-versus- CRIM. CASES No.

For: Violation of Sections 5, Article II
of Republic Act No. 9165

RAQUELO CARANGAN y ONARSI,

Accused.
x------------------------------------x

DEMURRER TO EVIDENCE
The Accused, assisted by the Public Attorney’s Office and unto this
Honorable Court, respectfully moves to dismiss the above-entitled actions for
insufficiency of evidence.

The two (2) sets of information were filed in this Honorable Court, and
their respective accusatory portions read:

Crim. Case No. 539-M-2007

(For: illegal sale of shabu)

That on or about the 3rd day of February, 2007, in the municipality of

Calumpit, province of Bulacan, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, without authority of
law and legal justification, did then and there willfully, unlawfully and
feloniously sell, trade, deliver, give away, dispatch in transit and
transport dangerous drug consisting of one (1) heat-sealed transparent
plastic sachet containing methylamphetamine hydrochloride (shabu)
weighing 0.031 gram.

Contrary to law.

Crim. Case No. 540-M-2007

(For: illegal possession of shabu)

That on or about the 3rd day of February, 2007, in the municipality of

Calumpit, province of Bulacan, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, without authority of
law and legal justification, did then and there willfully, unlawfully and
feloniously have in his possession and control dangerous drug consisting
of two (2) heat-sealed transparent plastic sachet containing
methylamphetamine hydrochloride (shabu) weighing 0.041 and 0.038
gram.
 Page 2 of 6

Contrary to law.

The accused pleaded ‘Not Guilty’ to the charges. The prosecution

presented on trial the testimonies of PO1 Rufino Victoria and PO1 Danilo de
Guzman. The testimony of forensic chemist Police Senior Inspector Maria
Amelita A. Mendoza was dispensed with by stipulation.

STATEMENT OF THE FACTS

The facts as indicated in the affidavit of arrest of PO1 Rufino Victoria

and PO1 Danilo de Guzman, upon which the prosecution based the indictment
of the accused are as follows:

On February 3, 2007 at about 2 o’clock in the afternoon, a confidential

informant reported to Police Superintendent Pedro Geronimo Ramos, Chief of
the Provincial Drug Enforcement Group (PDEG), about the alleged illegal drug
activities of a certain @Rocky, who was willing to sell illegal drugs to the
confidential informant in the afternoon of the same date along Brgy. Longos,
Calumpit, Bulacan.

With the above information, a buy bust team was immediately organized
and briefed wherein the confidential informant was designated as the poseur
buyer to be accompanied by PO1 Rufino Victoria. A one (1) piece P500 bill was
prepared with a dot marking on the forehead of the illustrious picture as the
buy bust money. The pre-arranged signal was the removing of the baseball
cap of PO1 Rufino Victoria once a drug deal was consummated.

Upon arrival at the target area, the confidential informant together with
PO1 Rufino Victoria approached the target’s house while the rest of the team
strategically followed at a viewing distance. When the confidential informant
and PO1 Rufino Victoria reached the house of @Rocky, they called at the latter
who later emerged from the door and joined the confidential informant and
PO1 Rufino Victoria outside the house. The confidential informant informed
@Rocky that they will buy shabu and introduced PO1 Rufino Victoria as a
“tropa”. @Rocky demanded payment afterwhich he brought out from his
pocket an embroidered coin purse and took therein a one (1) heat sealed
transparent plastic sachet containing white granules believed to be shabu. At
this juncture, the rest of the team closed in and the accused was freezed. PO1
Rufino Victoria frisked the accused and seized from him an embroidered coin
purse which contained two (2) heat sealed transparent plastic sachets
containing white granules suspected to be shabu as well as the P500.00 buy
bust money. An inventory receipt of the three (3) heat sealed plastic sachets,
small embroidered coin purse, and the one (1) piece P500.00 marked money
was prepared.

After admission of its offered exhibits, the prosecution rested its case.

ISSUE

Whether or not the evidence of the prosecution, standing on its own, is

sufficient to overcome the presumption of innocence of the accused.
 Page 3 of 6

ARGUMENTS

“Buy-bust operations have been proven to be an effective way to flush

out illegal transactions that are otherwise conducted covertly and in secrecy.
Nevertheless, while buy-bust operations have been recognized as such, it has
a significant downside that has not escaped the attention of the framers of the
law. It is susceptible to police abuse, the most notorious of which is its use as
a tool for extortion. The nature of a buy-bust operation necessitates a
stringent application of the procedural safeguards specifically crafted by
Congress in R.A. 9165 to counter potential police abuses.”1(italics added)

Section 21 of Republic Act No. (R.A.) 9165 delineates the mandatory

procedural safeguards that are applicable in cases of buy-bust operations, and
one of which is enunciated as follows:

(1) The apprehending team having initial custody and control of the
drugs shall, immediately after seizure and confiscation,
physically inventory and photograph the same in the
presence of the accused or the person/s from whom such
items were confiscated and/or seized, or his/her
representative or counsel, a representative from the media
and the Department of Justice (DOJ), and any elected public
official who shall be required to sign the copies of the inventory
and be given a copy thereof; (emphasis added)

xxx xxx xxx

The instant case stemmed from a buy-bust operation, which, under

Section 21 of R.A. 9165 as provided above required the conduct of physical
inventory and photograph immediately after seizure and confiscation, which
must be done in the presence of the aforementioned third party
representatives/witnesses.

The prosecution has offered in evidence a Certification2 for the purpose

of proving the inventory of the seized evidence conducted immediately after
the buy-bust operation. Said Certificate indicates one Joseph Robielos, a
representative from the media, as the witness to the confiscation and
inventory.

The defense notes that the inventory conducted by the apprehending

team fell short of the “required witnesses” under Section 21 of R.A. 9165. On
the face of said Certification, it is patent that the confiscation and inventory
were not witnessed by a representative/counsel of the accused, a
representative from the DOJ and any elected public official. Further, records
show that the apprehending team did not also comply with the “photograph
requirement”, as no photographs were ever offered and submitted by the
prosecution as part of its evidence.

While the prosecution may argue that the apprehending team is

presumed to have performed their duties regularly especially that there was
no indication that the arresting officers were impelled by improper motive
when they testified against the accused, and that any failure to conform to
1
People v. Joel Ancheta et al., G.R. No. 197371, 13 June 2012, citing People v. Umipang, G.R. No.190321, 25 April
2012
2
Exhs. “D” to “D-2”
 Page 4 of 6

the procedure laid down in Section 21 of R.A. 9165 would not cause the
invalidity of the buy-bust operation and the inadmissibility of the confiscated
items so long as the integrity and the evidentiary value of the items seized
are preserved, the Supreme Court held in the case of People v. Sammy
Umipang3 that courts must still thoroughly evaluate and differentiate
those errors that constitute a simple procedural lapse from those that
amount to a gross, systematic, or deliberate disregard of the
safeguards drawn by the law.

In the same case, Section 21(a) of the Implementing Rules and

Regulations (IRR) of R.A. 9165 has been elucidated as consisting a saving
clause in the procedures outlined under Section 21(1) of R.A. 9165 and under
which the procedural aspects may be relaxed. Below is Section 21(a) of the
IRR of R.A. 9165:

(a) The apprehending officer/team having initial custody and control

of the drugs shall, immediately after seizure and confiscation,
physically inventory and photograph the same in the presence of
the accused or the person/s from whom such items were
confiscated and/or seized, or his/her representative or counsel, a
representative from the media and the Department of Justice
(DOJ), and any elected public official who shall be required to sign
the copies of the inventory and be given a copy thereof: Provided,
that the physical inventory and photograph shall be conducted at
the place where the search warrant is served; or at the nearest
police station or at the nearest office of the apprehending
officer/team, whichever is practicable, in case of warrantless
seizures; Provided, further, that non-compliance with these
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; (emphasis and underscoring added)

The above saving clause applies only where the prosecution recognized
the procedural lapses, and thereafter explained the cited justifiable grounds
after which the prosecution must show that the integrity and evidentiary value
of the evidence seized have been preserved.4 To repeat, noncompliance with
the required procedure will not necessarily result in the acquittal of the
accused if: (1) the noncompliance is on justifiable grounds; and (2) the
integrity and the evidentiary value of the seized items are properly preserved
by the apprehending team.5

The records of the instant case are bereft of any indication that the
prosecution has recognized the procedural lapses in the conduct of the buy-
bust operation. In fact, it was only on the re-direct examination of prosecution
witness PO1 Rufino Victoria that the prosecution attempted to justify the
procedural lapses. A perusal of the records shows as follows:

3
G.R. No.190321, 25 April 2012
4
People v. Garcia, G.R. No. 173480, 25 February 2009
5
People v. De la Cruz, G.R. No. 177222, 29 October 2008
 Page 5 of 6

“Q: Mr. Witness, you admitted that your operation did not pass
through barangay coordination? Can you tell us why?

A: Because before we left the place of Rocky, we asked the

neighbors where the barangay hall was and the neighbors told
us that the barangay hall was far from the place where Rocky
resided; they also said that very seldom that the barangay
officials would go to the barangay hall, sir.

Q: I also noticed that you failed to take photographs. Why is that,

Mr. Witness?

A: We had no camera at that time when we conducted the

operation, but I remember there was a picture taking in the
office, sir.”6

Based on the above, the defense respectfully believes that the reasons
of the apprehending team for not complying with the procedural safeguards
under Section 21(1) of R.A. 9165 are flimsy excuses and are far from
justifiable. A mere statement that pictures were taken, where said pictures
were not even presented and submitted in evidence, is unmeritorious. Records
also show that no attempt to contact a representative from the DOJ and an
elected public official was made. There was thus no genuine and sufficient
effort on the part of the apprehending team to comply with the procedures.
Neither did the prosecution provide an account or explanation on how the
apprehending team preserved the integrity of the items seized vis-a-vis the
lapses in the conduct of the buy-bust operation.

Moreover, the defense further respectfully stands that the aforesaid

lapses were not simple procedural lapses. These are gross, systematic and
deliberate disregard of the procedural safeguards prescribed by law. It is
elucidated in the case of People v. Sammy Umipang that despite the
presumption of regularity in the performance of the official duties of law
enforcers, it bears stressing that the step-by-step procedure outlined under
R.A. 9165 is a matter of substantive law, which cannot be simply brushed
aside as a simple procedural technicality. The provisions were crafted by
Congress as safety precautions to address potential police abuses, especially
considering that the penalty imposed may be life imprisonment.

When there is gross disregard of the procedural safeguards prescribed

in the substantive law, serious uncertainty is generated about the identity of
the seized items that the prosecution presented in evidence. This uncertainty
cannot be remedied by simply invoking the presumption of regularity in the
performance of official duties, for a gross, systematic, or deliberate disregard
of the procedural safeguards effectively produces an irregularity in the
performance of official duties. As a result, the prosecution is deemed to have
failed to fully establish the elements of the crime charged, creating reasonable
doubt on the criminal liability of the accused.7

6
TSN, November 7, 2008, pages 26-27
7
People v. Sammy Umipang, G.R. No.190321, 25 April 2012, citing People v. Garcia, G.R. No. 173480, 25 February
2009
 Page 6 of 6

PRAYER

WHEREFORE, premises considered, it is respectfully prayed of the

Honorable Court to dismiss the above-entitled action for insufficiency of
evidence against the accused.

Respectfully submitted.

Malolos City, Bulacan. August 6, 2012.

PUBLIC ATTORNEY’S OFFICE

2/F New Hall of Justice
Provincial Capitol Compound
Malolos City, Bulacan
Counsel for the Accused
Assisted by:

DYANN O. CASTILLO
Public Attorney I
Roll No. 57888
IBP No. 873508;12/29/2011
MCLE Exempt (Admitted 2010)

Noted by:

HENRY M. FRANCISCO
Public Attorney IV/ OIC
Roll No. 48655
IBP Lifetime Roll No. 09533
O.R. No. 847308 (January 07, 2011)
MCLE Compliance No. IV-0006507 (June 26, 2012)

The Branch Clerk of Court

RTC-Bulacan, Branch 8
Malolos City, Bulacan

Greetings!

Please submit this Demurrer to Evidence for the consideration of the Honorable Court
promptly upon receipt hereof.

Dyann O. Castillo

cc: FISCAL CATHERINE E. RUTOR-REYES

Asst. Provincial Prosecutor
OFFICE OF THE PROVINCIAL PROSECUTOR
Provincial Capitol Compound
Malolos City, Bulacan