Republic of the Philippines

REGIONAL TRIAL COURT

Third Judicial Region
BRANCH 31
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.

ARGUMENTS
 Page 3 of 6

“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 Certification 2 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
the procedure laid down in Section 21 of R.A. 9165 would not cause the
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

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:

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

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

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

PRAYER

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

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