Republic of the Philippines

COURT OF APPEALS
Manila

PEOPLE OF THE PHILIPPINES, CA GR. CR-36666

Complainant-Appellee,

-versus- For: Appeal of the Decision

Rendered by the Regional Trial
Court, Branch 37, 4th Judicial
Region, Calamba City, Laguna in
Criminal Case Nos. 16961-C
and 16962-C [Re: Violation of
Secs. 5 and 11 of RA 9165]

ADRIAN COLUMA y Deumano @ “Tawtaw”

Accused-Appellant,

x--------------------------------------------------------------x

APPELLANT’S BRIEF

EXORDIUM

The Constitution mandates that an accused shall be presumed

innocent until the contrary is proven beyond reasonable doubt. The burden
lies on the prosecution to overcome such presumption of innocence by
presenting the quantum of evidence required. In so doing, the prosecution
must rest on the strength of its own evidence and must not rely on the
weakness of the defense. And if the prosecution fails to meet its burden of
proof, the defense may logically not even present evidence on its own
behalf. In such cases the presumption prevails and the accused should
necessarily be acquitted.1

1
People v. Angus, Jr., G.R. No. 178778. August 3, 2010.
Page 1 of 21
 Pursuant to the Notice of this Honorable Court, dated October 19,
2014 that was received by the undersigned counsel on October 21, 2014,
accused-appellant Adrian D. Columa, by counsel, most respectfully submits
his brief.

ASSIGNMENT OF ERRORS

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE

ACCUSED-APPELLANT DESPITE THE IRREGULARITY OF THE
BUY-BUST OPERATION.

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE

ACCUSED-APPELLANT DESPITE THE FAILURE TO COMPLY
WITH THE “OBJECTIVE TEST” IN BUY-BUST OPERATIONS.

II

THE TRIAL COURT ERRED IN UPHOLDING THE

PRESUMPTION OF REGULARITY IN THE PERFORMANCE OF
OFFICIAL DUTY BY THE POLICE OFFICERS DESPITE THE
PATENT IRREGULARITIES IN THE BUY-BUST OPERATION.

III

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE

ACCUSED-APPELLANT DESPITE NON-COMPLIANCE WITH
THE REQUIREMENTS FOR THE PROPER CUSTODY OF SEIZED
DANGEROUS DRUGS UNDER R.A. NO. 9165.

IV

THE TRIAL COURT GRAVELY ERRED IN GIVING CREDENCE

TO THE PROSECUTION’S EVIDENCE NOTWITHSTANDING
THE FAILURE OF THE APPREHENDING TEAM TO PROVE THE
INTEGRITY OF THE SEIZED DRUGS.

Page 2 of 21
 STATEMENT OF THE CASE

This is an appeal2 from the Decision3 dated June 5, 2014 of the

Regional Trial Court (RTC) of Calamba City, Laguna, Branch 37, finding
accused-appellant Adrian D. Columa @ “Tawtaw” guilty beyond reasonable
doubt of violating Sections 5 and 11, Article II of Republic Act No. 9165
(R.A. No. 9165), otherwise known as the Comprehensive Dangerous Drugs
Act of 2002. The dispositive portion of the assailed Decision reads as
follows:

“IN VIEW OF THE FOREGOING, in Criminal Case No.

16961-C, the Court finds the accused, Adrain Columa y Deumano,
GUILTY BEYOND REASONABLE DOUBT of violation of Section 11,
paragraph 2(3), Article II of Republic Act 9165. He is hereby
sentenced to suffer the indeterminate penalty of imprisonment of
TWELVE (12) YEARS and ONE (1), as minimum, to FOURTEEN
(14) YEARS, as maximum, and to PAY A FINE OF THREE
HUNDRED (P 300,000.00) PESOS.

In Criminal Case No. 16962-2010-C, the Court finds the

accused, Adrain Columa y Deumano, GUILTY BEYOND
REASONABLE DOUBT of violation of Section 5, Article II of
Republic Act 9165. The accused is hereby sentenced to suffer the
penalty of LIFE IMPRISONMENT and to PAY A FINE OF FIVE
HUNDRED (P 500,000.00) PESOS.

The Branch Clerk of Court is hereby ordered to turn over the

menthamphetamine hydrochloride (shabu) subject of Chemistry
Report No. D-031-10 to PDEA for proper disposition and
destruction.”4

In Criminal Case No. 16961-C, accused-appellant was charged in an

Information5 that read:

“The undersigned 2nd Assistant City Prosecutor accuses ADRIAN

COLUMA y Deumano @ “taw-taw” of violation of Sec. 11 of Republic Act
No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of
2002, committed as follows:

2
Under Rule 44 of the Rules of Court.
3
Record pp. 141-152, Crim. Case No. 16962-2010-C.
4
Records, p. 152 , Crim. Case No. 16952-2010-C [RTC Decision, p. 12.]
5
Records, p. 1, Crim. Case No. 16951-2010-C.
Page 3 of 21
 That on January 27, 2010 or thereabout, in the City of Calamba,
Laguna, Philippines and within the jurisdiction of this Honorable Court,
the above-named accused, not being lawfully authorized to possess any
dangerous drug and without the corresponding license or prescription, did
then and there willfully, unlawfully and feloniously has in his possession,
direct custody and control Methamphetamine Hydrochloride (shabu)
weighing ZERO POINT ZERO SIX (0.06) grams, which is a dangerous
drug, in violation of the above-cited law.”

While the pertinent portion of the Information 6 filed in Criminal Case

No. 16962-2010-C stated:7

“The undersigned Prosecutor accuses ADRIAN COLUMA y

Deumano @ “taw-taw” of violation of Sec. 5 of Republic Act No. 9165,
otherwise known as the Comprehensive Dangerous Drugs Act of 2002,
committed as follows:

That on January 27, 2010 or thereabout, in Calamba City, Laguna,

Philippines and within the jurisdiction of this Honorable Court, the above-
named accused, without being authorized by law, did then and there
willfully, unlawfully and feloniously sell, distribute or give away
Methamphetamine Hydrochloride (shabu) weighing Zero point Zero Two
(0.02) grams, a dangerous drug, in violation of the above-cited law.”

During his arraignment on February 8, 2010 8 and March 10, 20109,

accused-appellant, assisted by his counsel, pled not guilty to the charges.
Thereafter, the cases were consolidated. After a joint trial of the cases, the
trial court rendered the assailed Decision.

STATEMENT OF FACTS

On January 27, 2010, at around 5:00 p.m., an alleged buy-bust

operation was carried out in Brgy. Sanpiruhan, Calamba City, Laguna, by
Intelligence members of the Philippine National Police (PNP) in Calamba
City. The operation allegedly led to the arrest of the accused-appellant who,
as mentioned above, was charged for violating Sections 5 and Article II of
R.A. No. 9165.
6
Records, p. 1, Crim. Case No. 16952-2010-C.
7
Initially filed in RTC Branch 92, Calamba City, Laguna.
8
Records, p. 19, Crim. Case No. 16951-2010-C.
9
Records, p.23, Crim. Case No. 16952-2010-C.
Page 4 of 21
 In the ensuing arraignment, the accused-appellant entered a “Not
Guilty” plea. Thereafter, pre-trial and trial were held.

The prosecution presented the lone testimony of PO2 Aldabe, one

the police officers who participated in the alleged buy-bust operation. It
dispensed with the presentation of the testimonies of PNP Forensic
Chemist Lalaine Ong Rodrigo, who conducted the chemical analysis of the
specimens submitted for her examination, and PO2 Tejada, the police man
who delivered the specimen to the crime laboratory, since the subject
matter of their respective testimonies had already been stipulated during
the hearing on March 13, 2014.10

Documentary and object evidence were likewise submitted, such as:

Affidavit of Arrest,11 Request for Laboratory Examination12, Chemistry
Report No. D-031-1013, four (4) pieces small size heat-sealed transparent
plastic sachet containing shabu14, and the Pre-Operation Coordination
Report15 and the Coordination Form.16

Based on the totality of the evidence submitted, the prosecution

presented the following version of the events which led to accused-
appellant’s arrest:

PO2 Aldabe, testified that on 27 January 2010, their team

leader Police Inspector Rogel Sarreal (“PI Sarreal”) received
information from an asset pertaining to the rampant selling of illegal
drugs by Taw-Taw in Brgy. Sampiruhan. Triggered by the
information, PI Sarreal organized a team to conduct a surveillance
operation. The surveillance team was composed of SPO2 Melvin
Llanes, SPO1 Apolonio Naredo, PO2 Sanque, PO2 Lorente, PO2 Cruz
and PO2 Carpio who confirmed that there was drug dealing in the
place. At around 5:00pm, PO2 Aldabe and the confidential asset
approached Columa who was at the time in front of his house.
Columa asked the asset, “I have something here, do you want?” and

10
Records, pp. 86-87, Crim. Case No. 16952-2010-C.
11
Exhibit “A”, Records, pp. 4-5, Crim. Case No. 16952-2010-C.
12
Exhibit “B”, Records, p. 7, Crim. Case No. 16952-2010-C.
13
Exhibit “C”, Records, pp. 92, Crim. Case No. 16952-2010-C.
14
Exhibits “D” to “D-3”
15
Exhibit “E”, Records, p. 7, Crim. Case No. 16952-2010-C.
16
Exhibit “F”, Records, p. 7, Crim. Case No. 16952-2010-C.
Page 5 of 21
 the confidential asset replied, “Yes, only dos”. The asset then handed
Columa the Php200.00 marked money and in turn Columa gave the
asset a small plastic sachet. After the exchange, PO2 Aldabe held the
arms of Columa and introduced himself as a policeman. The other
members of the team who were hiding some seven to ten meters
away rushed to PO2 Aldabe assist him. PO2 Aldabe then conducted a
preventive search and confiscated three small plastic sachets
containing shabu in the possession of Columa in the latter’s right
pocket. PO2 Aldabe marked the confiscated items as well as the item
purchased in the buy-bust with initials RUA-ADC, RUA-ADC-1,
RUA-ADC-2, and RUA-ADC-3. The buy-bust money was likewise
recovered by PO2 Aldabe from Columa. PI Sarreal instructed the
team to go back to the police station due to a commotion as
somebody was throwing stones at them. When they reached the
police, station, PO2 Aldabe made a Request for Laboratory
Examination. The said request together with the seized specimens
were delivered by PO2 Tejada to the crime laboratory. The result of
the examination yielded that the seized items were positive for
methamphetamine hydrochloride.17

After the prosecution had rested its case, the accused-appellant filed a
Motion for Leave of Court to File Demurrer to Evidence, 18 which the
Honorable Trial Court denied in its Order19 dated April 7. 2014.

However, as accused-appellant believed that the prosecution has

utterly failed to prove his guilt beyond reasonable, he proceeded to file his
demurrer.20

As intimated, on June 5, 2014, the Honorable Trial Court rendered

judgment finding the accused-appellant guilty beyond reasonable doubt of
the offenses charged.

17
Records, pp. 142-143, Crim. Case No. 16952-2010-C.
18
Records, pp. 96-97, Crim. Case No. 16952-2010-C.
19
Records, p. 98, Crim. Case No. 16952-2010-C.
20
Records, pp. 104-128, Crim. Case No. 16952-2010-C.

Page 6 of 21
 In its Decision, the trial court upheld the veracity of the buy-bust
operation. It ruled that the accused-appellant was caught in flagrante
delicto of selling shabu which led to a warrantless arrest and search which
yielded the possession of more illegal drugs. The trial court ruled that the
elements for the prosecution of illegal sale of dangerous drugs had been
proven in this case, i.e., that there was a meeting of the minds between the
accused-appellant and the poseur-buyer for the sale of P200.00 worth of
shabu and there was delivery of the drugs to the poseur-buyer who gave
money in exchange therefor.

Anent the supposed non-compliance with the inventory and

photography requirements in R.A. No. 9165, the trial court brushed the
same aside, pointing out that the evidence of the prosecution disclosed that
the chain of custody of the seized illegal drugs had been preserved. It
pointed out that there was no hiatus or confusion in the confiscation,
handling, custody and examination of the shabu. The illegal drugs that were
confiscated from accused-appellant, taken to the police headquarters,
subjected to qualitative examination at the crime laboratory, and finally
introduced in evidence against accused-appellant were the same illegal
drugs that were confiscated from him when he was caught in flagrante
delicto selling and possessing the same.

ISSUES OF FACTS AND LAW

Whether or not the guilt of the accused-appellant for illegal sale and
possession of methamphetamine hydrochloride or shabu was proved
beyond reasonable doubt.

Whether or not the arresting officers preserved the integrity and the
evidentiary value of the seized items despite their failure to observe the
mandatory procedural requirements of Sec. 21 of R.A. 9165 and its IRR.

Page 7 of 21
 ARGUMENTS

The assigned errors, being closely allied, will be discussed jointly.

To reiterate, the Constitution demands that every accused be

presumed innocent until the charge is proved. Before an accused can be
convicted of any criminal act, his guilt must first be proved beyond
reasonable doubt.21 The prosecution has the burden to overcome such
presumption of innocence by presenting the quantum of evidence
required.22

Proof beyond reasonable doubt does not mean such a degree of proof
as, excluding possibility of error, produces absolute certainty. Moral
certainty only is required, or that degree of proof which produces
conviction in an unprejudiced mind. 23 It must rest on its own merits and
must not rely on the weakness of the defense. If the prosecution fails to
meet the required amount of evidence, the defense may logically not
even present evidence on its own behalf, in which case, the
presumption prevails and the accused should necessarily be
acquitted.24

In this case, the prosecution failed to overcome such presumption.

A buy-bust operation is a legally effective and proven procedure,

sanctioned by law, for apprehending drug peddlers and distributors. 25 As in
all drugs cases, compliance with the chain of custody rule is crucial in any
prosecution that follows such operation. The rule is imperative, as 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

21
People v. Rentoria, G.R. No. 175333. September 21, 2007.
22
People v. Clara, G.R. No. 195528. July 24, 2013.
23
Section 2, Rule 133, Rules of Court.
24
People v. Capuno, G.R. No. 185715, 19 January 2011 640 SCRA 233.
25
People v. Mantalaba, G.R. No. 186227, July 20, 2011, 654 SCRA 188.
Page 8 of 21
of said drug is established with the same unwavering exactitude as that
requisite to make a finding of guilt.26

In the recent case of People v. Relato27, the High Court reiterated

the following:

“In a prosecution of the sale and possession of

methamphetamine hydrochloride prohibited under Republic Act No.
9165, the State not only carries the heavy burden of proving the
elements of the offense of, but also bears the obligation to prove the
corpus delicti, failing in which the State will not discharge its basic
duty of proving the guilt of the accused beyond reasonable doubt. It
is settled that the State does not establish the corpus delicti when the
prohibited substance subject of the prosecution is missing or when
substantial gaps in the chain of custody of the prohibited substance
raise grave doubts about the authenticity of the prohibited substance
presented as evidence in court. Any gap renders the case for the
State less than complete in terms of proving the guilt of the accused
beyond reasonable doubt. Thus, Relato deserves exculpation,
especially as we recall that his defense of frame-up became plausible
in the face of the weakness of the Prosecution’s evidence of guilt.”

To eliminate doubt, and even abuse, in the handling of seized

substances, some safeguards for compliance by law enforcement officers
are established by law and jurisprudence. For one, Section 21 of R.A. No.
9165, which reads in part:

“Sec. 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 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:

26
People v. Remigio, G.R. No. 189277, December 5, 2012, 687 SCRA 336.
27
G.R. No. 173794, 18 January 2012.
Page 9 of 21
 (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;”

The Implementing Rules and Regulations (IRR) of R.A. No. 9165,

particularly Section 21 thereof, further provides the following guidelines in
the custody and control of confiscated drugs:

“(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;”

Though the rule includes the proviso that procedural lapses in the
handling of the seized drugs are not ipso facto fatal to the prosecution’s
cause, provided that the integrity and the evidentiary value of the seized
items are preserved. Courts, in each case, are nonetheless reminded to
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 that are drawn by the
law 28for the protection of the corpus delicti.

28
People v. Umipang, G.R. No. 190321, April 25, 2012, 671 SCRA 324, 355.
Page 10 of 21
 "Chain of custody" means the duly recorded authorized movements
and custody of seized drugs or controlled chemicals or plant sources of
dangerous drugs or laboratory equipment of each stage, from the time of
seizure/confiscation to receipt in the forensic laboratory to safekeeping to
presentation in court and finally for destruction. Such record of movements
and custody of seized item shall include the identity and signature of the
person who held temporary custody of the seized item, the date and time
when such transfer of custody were made in the course of safekeeping and
use in court as evidence, and the final disposition. 29

To establish the chain of custody in a buy-bust operation, the

prosecution must establish the following links, namely: 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 by the forensic chemist to the court. 30

The “objective test” in determining the credibility of prosecution

witnesses regarding the conduct of buy-bust operation provides that it is
the duty of the prosecution to present a complete picture detailing the buy-
bust operation – from the initial contact between the poseur-buyer and the
pusher, the offer to purchase, the promise or payment of the consideration,
until the consummation of the sale by the delivery of the illegal subject of
sale.31 The manner by which the initial contact was made, the offer to
purchase the drug, the payment of the buy-bust money, and the delivery of
the illegal drug must be the subject of strict scrutiny by courts to insure that
law-abiding citizens are not unlawfully induced to commit an offense. 32

29
Section 1 (b) of Dangerous Drugs Board Regulation No. 1, Series of 2002 which
implements R.A. No. 9165
30
Supra, see note 26.
31
People v. Doria, 361 Phil. 595 (1999).
32
Cabugao v. People, G.R. No. 158033, 30 July 2004, 435 SCRA 624.
Page 11 of 21
 The strict demands and significant value of the chain of custody rule
were emphasized in the oft-cited Malillin v. People33 wherein the
Supreme Court held:

“As a method of authenticating evidence, the chain of custody

rule requires that the admission of an exhibit be preceded by
evidence sufficient to support a finding that the matter in question is
what the proponent claims it to be. It would include testimony about
every link in the chain, from the moment the item was picked up to
the time it is offered into evidence, in such a way that every
person who touched the exhibit would describe how and
from whom it was received, where it was and what
happened to it while in the witness' possession, the
condition in which it was received and the condition in
which it was delivered to the next link in the chain. These
witnesses would then describe the precautions taken to
ensure that there had been no change in the condition of
the item and no opportunity for someone not in the chain
to have possession of the same.

While testimony about a perfect chain is not always the

standard because it is almost always impossible to obtain, an
unbroken chain of custody becomes indispensable and essential
when the item of real evidence is not distinctive and is not readily
identifiable, or when its condition at the time of testing or trial is
critical, or when a witness has failed to observe its uniqueness. The
same standard likewise obtains in case the evidence is susceptible to
alteration, tampering, contamination and even substitution and
exchange. In other words, the exhibit's level of susceptibility to
fungibility, alteration or tampering — without regard to whether the
same is advertent or otherwise not — dictates the level of strictness
in the application of the chain of custody rule.”34

As accused-appellant pointed out in his Demurer to Evidence, and

now points out in this brief, there were several lapses in the law enforcers’
handling of the seized item which, when taken collectively, render the
standards of chain of custody seriously breached. In a line of cases, the
Supreme Court explained that the failure to comply with the indispensable
requirement of corpus delicti happens not only when it is missing, but also
where there are substantial gaps in the chain of custody of the seized drugs
which raise doubts on the authenticity of the evidence presented in court. 35

33
576 Phil. 576 (2008).
34
Emphasis and underscoring supplied.
35
People v. Relato, G.R. No. 173794, January 18, 2012, 663 SCRA 260.
Page 12 of 21
 Here, below were such lapses and doubt that mar the instant case.

FIRST. Utter irregularity attaches to the Coordination

Form, which is intended to show the coordination between the
PDEA and the police. Its importance lies in the fact that RA No. 9165
mandates close coordination between the Philippine National
Police/National Bureau of Investigation and the PDEA on all drug-related
matters, including investigations on violations of RA No. 9165, with the
PDEA as the lead agency.

“Section 86. Transfer, Absorption, and Integration of All

Operating Units on Illegal Drugs into the PDEA and Transitory
Provisions. – The Narcotics Group of the PNP, the Narcotics
Division of the NBI and the Customs Narcotics Interdiction Unit are
hereby abolished; however they shall continue with the performance
of their task as detail service with the PDEA, subject to screening,
until such time that the organizational structure of the Agency is
fully operational and the number of graduates of the PDEA Academy
is sufficient to do the task themselves . . .

Nothing in this Act shall mean a diminution of the

investigative powers of the NBI and the PNP on all other crimes as
provided for in their respective organic laws: Provided, however,
That when the investigation being conducted by the NBI, PNP or any
ad hoc anti-drug task force is found to be a violation of any of the
provisions of this Act, the PDEA shall be the lead agency. The NBI,
PNP or any of the task force shall immediately transfer the same to
the PDEA: Provided, further, That the NBI, PNP and the Bureau of
Customs shall maintain close coordination with the PDEA on all
drug related matters.”

In the case at bar, the coordination form is suspect as it was

apparently accomplished and sent to PDEA a day after the
alleged buy-bust operation was conducted. PO2 Aldabe testified

Page 13 of 21
that they arrested accused-appellant in an entrapment operation on 5:00
p.m. of January 27, 2010.36 Meanwhile, from “TIME RECIEVED” marked
on the face of the Coordination Form, it was received by PO1 Castillo at
2:00 p.m. of January 28, 2010.

Enlightening is People v. Martin,37 wherein the Supreme Court

acquitted the accused-appellant, by reasons, among others, of violation of
Sec. 86 of RA 9165, thus –

“The first irregularity attaches to the Pre-Operation

Report/Coordination Sheet, which is intended to show the
coordination between the PDEA and the police. Its importance lies in
the fact that RA No. 9165 mandates close coordination between the
Philippine National Police/National Bureau of Investigation and the
PDEA on all drug-related matters, including investigations on
violations of RA No. 9165, with the PDEA as the lead agency.

In the case at bar, the original Pre-Operation

Report/Coordination Sheet was not presented in court and the
records contain only a photocopy thereof, provisionally marked
Exhibit "D." Caution must be made that the failure of the
prosecution to present the Pre-Operation Report, by itself, is not
fatal to the prosecution's cause. Even if the Pre-Operation
Report/Coordination Sheet was properly presented in evidence,
however, it is suspect as it was apparently accomplished and sent to
PDEA hours before the informant arrived to give the police any
information about the alleged illegal drug activity of Martin. SPO1
Mora variably testified that the confidential informant came to their
office at 5 p.m. or 5:30 p.m. of 6 November 2006. Meanwhile, from
the three faint stamps marked on the face of the Pre-Operation
Report/Coordination Sheet, it was received by PDEA-MMRO either
at 1:30 p.m., 1:40 p.m. or 2:00 p.m. of 6 November 2006.”

SECOND. The marking had NOT been done in the presence

of accused-appellant. Again, to reiterate, when prosecuting the sale or
possession of dangerous drugs like shabu, the State must prove not only the
elements of each of the offenses. It must prove as well the corpus delicti,

36
TSN, 13 March 2014, pp. 4-8.
37
G.R. No. 193234. October 19, 2011.
Page 14 of 21
failing in which the State will be unable to discharge its basic duty of
proving the guilt of the accused beyond reasonable doubt. 38 To prove the
corpus delicti, the prosecution must show that the dangerous drugs seized
from the accused and subsequently examined in the laboratory are the
same dangerous drugs presented in court as evidence to prove his guilt. 39

The first stage after seizure is the taking of inventory of the dangerous
drugs seized from the suspect. It begins with the marking of the seized
objects to fix its identity. Such marking should be made as far as
practicable in the presence of the suspect immediately upon his
arrest. 40

Here, is not clear from the evidence that the markings were made in
the presence of the accused or his representative. Marking, which is the
affixing on the dangerous drugs or related items by the apprehending
officer or the poseur-buyer of his initials or signature or other identifying
signs, should be made in the presence of the apprehended violator
immediately upon arrest.41

Although PO2 Aldabe, the State’s lone witness, testified that he had
marked the sachets of shabu with his own initials of “RUA-ADC”, “RUA-
ADC-1”, “RUA-ADC-2”, and RUA-ADC-3” following accused-appellant
arrest, he did not explain, either in his court testimony or in his
affidavit of arrest42, whether his marking had been done in the
presence of accused-appellant.

“Another phase of the first link to the chain of custody is the

marking of seized items. The rule requires that it should be done in
the presence of the apprehended violator and immediately upon
confiscation to ensure that they are the same items that enter the
chain and are eventually the ones offered in evidence.” 43

38
Supra, see note 35.
39
People v. Gonzales, G.R. No. 182417, April 3, 2013, 695 SCRA 123, 133.
40
People v. Bautista, G.R. No. 198113. December 11, 2013.
41
Supra, see note 39.
42
Supra, see note 11.
43
Fajardo, et. al. v. People, G.R. No. 185460. July 25, 2012.
Page 15 of 21
 Thus, there is already a gap in determining whether the specimens
that entered into the chain were actually the ones examined and offered in
evidence.

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 contrabands 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.

THIRD. The lawmen also failed to duly accomplish an

inventory and took photographs of the seized items pursuant to
the above-stated provision. This, PO2 Aldabe categorically admitted in
his testimony.44 His pathetic excuse that he took photographs of the seized
items using his mobile but the phone broke 45 is a puerile, if not pathetic,
excuse, to say the least. Moreover, there is nothing in the records that
would show at least an attempt to comply with this procedural safeguard;
neither was there any justifiable reason propounded for failing to do so.
Yes, stones were pelted at them at the alleged buy-bust scene, 46 but that
would not excuse them from complying with the mandatory provisions of
Section 21 and the IRR of R.A. No. 9165 because the same can be
accomplice at the police station. This is either sloppy police work or utter
refusal to comply with what is required of them.

The saving clause in Section 21, IRR of R.A. No. 9165 cannot remedy
these lapses committed by the police. The Supreme Court has emphasized

44
TSN, 13 March, 2014, pp. 30-32.
45
Id., pp. 33-44.
46
Supra, see note 44.
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in People v. Garcia47 that the saving clause applies only where the
prosecution recognized the procedural lapses, and thereafter cited
justifiable grounds.48 Failure to follow the procedure mandated under R.A.
No. 9165 and its IRR must be adequately explained. 49
Equally important,
the prosecution must establish that the integrity and the evidentiary value
of the seized item are properly preserved.

“To be sure, Section 21 (a), Article II of the IRR offers some

flexibility in complying with the express requirements under
paragraph 1, Section 21, Article II of R.A. No. 9165, i.e., "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." In Sanchez, we clarified that this saving clause applies only
where the prosecution recognized the procedural lapses, and
thereafter explained the cited justifiable grounds. We also stressed
in Sanchez, that in such case, the prosecution must show that the
integrity and evidentiary value of the evidence seized have been
preserved.”

The prosecution failed in this regard. Taking into account the several
rules and requirements that were not followed by the law enforcers, there
was an evident disregard on their part of the established legal
requirements. Their breach of the chain of custody rule, magnified by the
prosecution’s anaemic explanation as to the deficiencies during the trial,
casts doubt on whether the items claimed to have been sold by accused-
appellant to the police asset, as was allegedly possessed by him were the
same items that were brought for examination by the police to the crime
laboratory and eventually presented in court as evidence.
In People v. Lim50, the Supreme Court held:

“. . . any apprehending team having initial custody and control

of said drugs and/or paraphernalia, should immediately after seizure
and confiscation, have the same physically inventoried and
photographed in the presence of the accused, if there be any, and or

47
G.R. No. 173480, February 25, 2009, 580 SCRA 259.
48
People v. Sanchez, G.R. No. 175832, October 15, 2008, 569 SCRA 194.
49
People v. Lorenzo, G.R. No. 184760, April 23, 2010, 619 SCRA 389, 400.
50
G.R. No. 141699, August 7, 2002.
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 his representative, who shall be required to sign the copies of the
inventory and be given a copy thereof. The failure of the agents to
comply with such a requirement raises a doubt whether what was
submitted for laboratory examination and presented in court was
actually recovered from the appellants. It negates the presumption
that official duties have been regularly performed by the PAOC-TF
agents.”

In Bondad, Jr. v. People,51 where the prosecution did not

inventory and photograph the confiscated evidence, the Supreme Court
acquitted therein accused reasoning that failure to comply with the
aforesaid requirements of the law compromised the identity of the items
seized.

In People v. Orteza,52 the Court explained the implications of the

failure to comply with Paragraph 1, Section 21, Article II of Republic Act
No. 9165, to wit:

“In People v. Laxa, where the buy-bust team failed to mark the
confiscated marijuana immediately after the apprehension of the
accused, the Court held that the deviation from the standard
procedure in anti-narcotics operations produced doubts as to the
origins of the marijuana. Consequently, the Court concluded that the
prosecution failed to establish the identity of the corpus delicti.

The Court made a similar ruling in People v. Kimura, where

the Narcom operatives failed to place markings on the seized
marijuana at the time the accused was arrested and to observe the
procedure and take custody of the drug.

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 prosecution's
failure to indubitably show the identity of the shabu.”
FOURTH, the presumption of regularity in the performance of
official duty cannot be invoked by the prosecution where the procedure was
tainted with material lapses. 53 The presumption of regularity in the
performance of official duty cannot by itself overcome the presumption of

51
G.R. No. 173804, December 10, 2008, 573 SCRA 497.
52
G.R. No. 173051, July 31, 2007, 528 SCRA 750.
53
People v. Salonga, G.R. No. 194948. September 2, 2013.
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innocence nor constitute proof beyond reasonable doubt. 54 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 prosecution’s failure to
adduce justifiable grounds on their procedural lapses, the reversal of the
finding of the court a quo is in order.

As the Supreme Court held in People v. Umipang,55

“[W]e reiterate our past rulings calling upon the authorities to

exert greater efforts in combating the drug menace using the
safeguards that our lawmakers have deemed necessary for the
greater benefit of our society. The need to employ a more stringent
approach to scrutinizing the evidence of the prosecution – especially
when the pieces of evidence were derived from a buy-bust operation
– redounds to the benefit of the criminal justice system by protecting
civil liberties and at the same time instilling rigorous discipline on
prosecutors.”

FINALLY. Accused is begging the Honorable Court of Appeals to

take a second look at his Demurrer to Evidence. In totality, the Demurrer to
Evidence emphasizes the lapses and irregularities in the buy-bust operation
against accused and same is hereto attached as Annex “2.” 56

RELIEF

WHEREFORE, it is respectfully prayed that the Decision of the

Regional Trial Court of Calamba City, Laguna, Branch 37, dated June 5,
2014, in Criminal Case No. . 16961-C and in Criminal Case No. 16962-C be

54
Id.
55
Supra, see note 28.
56
Supra, see note 20.

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REVERSED AND SET ASIDE and accused-appellant Adrian D. Columa
@ “Tawtaw” be ACQUITTED.

Other reliefs, just and equitable under the premises are likewise
prayed for.

Calamba City. November 13, 2014.

By:

ATTY. BERNHARD RYAN MURO

Counsel for Accused-Appellant
Attorney Roll No. 51118
PTR No. 5297081/ 02-05-2014/ Calamba City, Laguna
IBP No. 941736/ 02-05-2014/ Laguna
MCLE Compliance No.IV-0010453/12-14-2012

MURO LAW OFFICE

2 Floor, Unit 6, PRH Building
nd

S.V. Rizal Street, Old Municipal Site Calamba City, Laguna

Copy furnished:

THE SOLICITOR GENERAL

134 Amorsolo St., Legaspi Village,
Makati, Metro Manila

REGIONAL TRIAL COURT

Branch 37
4th Judicial Region
Bulwagan, Old Municipal Site,
Calamba City, Laguna

OFFICE OF THE CITY PROSECUTOR

Calamba City,
New City Hall Building,
Brgy. Halang, Calamba City, Laguna
EXPLANATION
(Pursuant to Section 11, Rule 13 of the 1997 Rules on Civil Procedures)

The Appellant’s Brief is being served by registered mail due to lack of

personnel to effect personal service.

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ATTY. BERNHARD RYAN MURO

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