FIRST DIVISION

G.R. No. 238873 - PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

versus SUNDARAM MAGAYON y FRANCISCO, defendant-appellant.

Promulgated:
SEP 16 2020
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

DISSENTING OPINION

CAGUIOA, J.:

The ponencia denies the appeal of Sundaram Magayon y Francisco

(Sundaram) for the crime of illegal possession of dangerous drugs, punishable
under Section 11 of Republic Act (R.A.) No. 9165. The denial is primarily
premised on the statements in Sundaram's Counter-Affidavits, which were
considered as a voluntary confession of the crime charged against him. 1
Furthermore, despjte the deviations from the chain of custody rule, the
ponencia ruled that the integrity and identity of the seized dangerous drugs
were sufficiently established. 2

I dissent.

The statements attributed to the appellant in this case do not amount to

a confession for the possession of the entire volume of drugs stated in the
Information. They are likewise not tantamount to an admission that the
apprehending team sufficiently preserved the integrity and identity of the
seized drug evidence.

From the records it appears that a buy-bust operation was conducted on

August 3, 2004, in front of the residence ofSundaram. After the poseur buyer,
PO2 Jaime delos Santos, exchanged his marked Pl00.00 for a tea-bag sized
packet of suspected marijuana from Sundaram, the police officers moved in
to arrest the appellant. His common-law wife, Syntyche Litera (Syntyche),
was likewise arrested. 3

The police officers thereafter informed Sundaram that they had a search
warrant covering his residence. 4 Before proceeding with the search, the police
officers waited for the arrival of barangay officials and media representatives
to witness the search. The search yielded numerous small sachets of marijuana
found inside the house and the adjacent store. 5 According to the prosecution,
PO2 Rey Gabrielle Maderal (PO2 Madera!) marked the seized items with his
1
Ponencia, p. 17.
2
Id. at 18.
3
Records, p. 8.
4
Id. at 4; TSN, August l 0, 2006, p. 6.
5 TSN, August I 0, 2006, pp. 13- 14.
Dissenting Opinion 2 G.R. No. 238873

initials. He also prepared the Certificate of Inventory to document the

following items taken during the implementation of the search warrant: (a) a
total of 74 tea-bag sized sachets of marijuana; (b) dried crushed leaves of
marijuana inside a plastic container; and ( c) one ( 1) white cellophane
containing marijuana. The marked money used for the buy-bust operation,
together with its serial number, was also recorded in the inventory. The
barangay officials and the media personnel from ABS-CBN Butuan and
DXBC all signed the Certificate of Inventory, including the appellant. 6

When the police officers returned to their office, P02 Maderal took
custody of the confiscated items from the buy-bust and search warrant
operations. He prepared several more documents upon their arrival, including
the return on the Search Warrant, the Affidavit of Apprehension, and the
indorsement to the Philippine National Police (PNP) Crime Laboratory. 7

Thereafter, P02 Maderal delivered the request and the specimen to the
PNP Crime Laboratory. 8 The examination of the drug evidence yielded a
positive result for marijuana, a dangerous drug.9

Sundaram was charged in two (2) separate Infonnations for the illegal
sale and illegal possession of dangerous drugs, in violation of Sections 5 and
11, Article II, of R.A. No. 9165, respectively. The trial court acquitted
Sundaram of the charge of illegal sale of dangerous drugs for insufficiency of
evidence, there being no markings or inventory on the packet of marijuana
supposedly taken pursuant to the buy-bust operation. However, Sundaram was
found guilty for the charge of illegal possession of 381.3065 grams of
marijuana. 10

The Court of Appeals (CA) affirmed the trial court's decision, which
constrained Sundaram to file the present appeal before the Court.

I.
In the Decision, the ponencia affirmed the conviction of Sundaram on
the basis of his supposed confession in his counter-affidavits during the
preliminary investigation. In particular, the following statements m
Sundaram's August 14, 2004 Counter-Affidavit were deemed relevant:

I, SUNDARAM MAGAYON y Francisco, 31 years old, single and

a resident of 6th St., Guingona Subd., Butuan City, after having been sworn
to in accordance with law, do hereby depose and say THAT:

xxxx

6
Exhibit "D," index of exhibits, p. 9; id. at 13-15.
7
TSN, August I0, 2006, pp. 21 -22.
Id. at 23-25.
9
Exhibits " I," "J," index of exhibits, pp. 15-16.
10
Ponencia, pp. 9-10.
 Dissenting Opinion 3 G .R. No. 238873

My live[-]in partner, [Syntyche], alias Cheche, has nothing to do

with the activities that transpired in our residence;

The marked money that was found in her possession came from me
because I handed it to her because I was about to take a bath[.] 11

The following statement in his February 2, 2005 Counter-Affidavit was

likewise considered as a voluntary confession: "[t]he alleged prohibited d1ugs
found in my possession were for my personal use and not for sale or
distribution to buyers." 12 For the ponencia, these were sufficient to supp01i a
verdict of conviction as Sundaram "knowingly took full responsibility for
the seized drugs." 13

In my view, however, these statements do not constitute a confession

of Sundaram's guilt to the charge of illegal possession of 381.3065 grams of
manJuana.

Preliminarily, the quoted statements in the August 14, 2004 Counter-

Affidavit of Sundaram relate to the marked money that he purportedly
received as a result of the buy-bust operation. These statements, therefore, are
relevant only as to the charge of illegal sale of dangerous drugs, for which he
was already acquitted. Stated simply, they cannot be relied upon to sustain a
conviction for possession.

More importantly, the language of Sundaram's sworn statements lacks

a categorical aclmowledgment of guilt, particularly with respect to his
ownership and possession of the entire volume of drugs found in his residence.
In this regard, the Comi has always made a distinction between a confession
and an admission. A confession refers to the express acknowledgment of guilt
of the crime charged, while an admission "is an acknowledgment of some
facts or circumstances which, in itself, is insufficient to authorize a conviction
and which tends only to establish the ultimate facts of guilt." 14 An admission
is deemed less than a confession as it acknowledges only factual
circumstances that tend to prove the guilt of the accused when connected with
proof of other facts. 15

A careful examination of the statements in Sundaram' s Counter-

Affidavits would reveal that these were mistakenly characterized as a
confession. In his August 14, 2004 Counter-Affidavit, Sundaram stated that
the marijuana leaves were left in his residence, presumably by someone else,
and that he was about to report this to the authorities. 16 The appellant's passive
reference to these drugs indicates an intention to distance himself therefrom.
Rather than establishing a categorical admission of ownership on the part of
11
CA rollo, p. 26; id. at 17.
12 CA rollo, p. 25; ponencia, id.
13
Ponencia, id.; emphasis in the original.
14
People v. Buntag, G.R. No. 123070, April 14, 2004, 427 SCRA 180, 190- 191.
15
Sanvicente v. People, G.R. No. 132081, November 26, 2002, 392 SCRA 610, 618-619, citing People v.
licayan, G.R. No. 144422, February 28, 2002, 378 SCRA 28 I, 292.
16
CA rollo, p. 26.
Dissenting Opinion 4 G.R. No. 238873

the appellant, there is no discernible awareness in this statement that he freely

and consciously possessed them.

Meanwhile, in his February 2, 2005 Counter-Affidavit, Sundaram

stated that "[t]he alleged prohibited drugs found in [his] possession" 17 were
only for his own personal use. He also concluded his sworn statement with
the admission that he is a drug user but not a seller of prohibited drugs. 18

The equivocalness in these statements is readily apparent. Aside from

using the word "alleged" to refer to the prohibited drugs, the February 2, 2005
Counter-Affidavit does not specify the drugs involved or the amount
purportedly found in his possession. The glaring absence of these details fail
to lend credence to the ponencia's ruling that Sundaram "knowingly took full
responsibility for the seized drugs." 19 This holds especially true in this case
where Sundaram maintained that his acknowledgement of guilt only refers to
his drug use. During his cross-examination, he denied the rest of the
statements in his February 2, 2005 Counter-Affidavit, viz.:

[Prosecutor Aljay 0. Go]

Q I'm showing you a Counter-Affidavit of Sundaram
Magayon, of legal age, single, and a resident of 6 th St., Guingona
Subd., Purok 4, Brgy. 25, JP Rizal, Butuan City, subscribed before
the City Prosecutor Felixberto L. Guiratan on February 21 , 2005, are
you referring to this counter-affidavit?

[Sundaram]
A Yes, Sir, this is the one that I was able to sign.

Q Is this your signature appearing above the name ofSundaram

F. Magayon?

A Yes, Sir.

Q For emphasis, it was your lawyer, Atty. Poculan, who

prepared this affidavit at that time?

A Yes, Sir.

xxxx

Q You mentioned in the second paragraph of your counter-

affidavit, to quote:

"I asked for the reinvestigation of said case because

the truth of the matter, is that I am not a pusher or
peddler of prohibited drugs but only a USER of the
same[.]"

Do you affirm the trnthfulness of this statement?

17
Id. at 25; emphasis supplied.
is Id.
19
Ponencia, p. 17; emphasis in the original.
 Dissenting Opinion 5 G.R. No. 238873

A Yes, Sir.

xxxx

Q You said earlier that you attest (to] the veracity of the rest of
your statement in this counter-affidavit, is it not?

A The one stated in the second paragraph is true.

Q I'm showing you your Counter-Affidavit and I will give you

time to read the matter aside from the fourth paragraph of your
statement, which you said, is not correct or true statement Mr.
Witness (sic).

(Witness, at this _juncture, is reading his sworn

statement)

So, what are not the correct statements here?

A The second paragraph of the statement p01iion is the correct

statement, and the rest were not my idea, Sir. 20 (Emphasis in the
original)

Sundaram also denied the statements in the August 14, 2004 Counter-
Affidavit. In his cross-examination, he testified that he was only made to sign
the document:

Q The first counter-affidavit which I presented to you was

executed on February 21, 2005. I'm showing you now another
Counter-Affidavit of Sundaram Magayon y Francisco, 31 years old,
single and a resident of 6 th St., Guingona Subd., Butuan City, please
go over this whether you executed this Counter-Affidavit with the
assistance of Atty. Neibert T. Poculan, who apparently notarized this
counter-affidavit?

A I don't have any idea about this counter-affidavit.

Q By the way, please take a look at the signature of the affiant

above the name Sw1daram F. Magayon, is it not that this is your
signature?

A Yes, Sir, but I was only made to sign this document. 21

At most, the statements in Sundaram's Counter-Affidavits should be

considered as mere admissions as they are not tantamount to a categorical
acknowledgment of guilt.

While Sundaram' s admissions may be taken as evidence against him,

his statements are not an unequivocal declaration that he possessed "a large

20 TSN, January 15, 20 15, pp. 14-15

21
Id. at 20.
Dissenting Opinion 6 G.R. No. 238873

quantity of marijuana." 22 Neither are these an admission that "the seized

drugs were marked and inventoried at the time and place of the search ."23
Since both of his Counter-Affidavits are ambiguous as to the amount of drugs
involved, his statements do not contemplate that the drugs presented in court
were the same ones taken from him.

For the ponencia, however, the appellant's failure to specify the volume
of drugs he possessed should be considered as an unqualified admission for
the entire drug evidence. Either the appellant owned the entire quantity or
none at all.24 This conveniently disregards the fact that according to the
prosecution, two (2) operations were conducted prior to the arrest of the
appellant: the buy-bust operation and the implementation of the search
warrant. In both instances, the prosecution averred that the police officers
were able to recover marijuana from the appellant. Without specific details as
to the confiscated drugs referred to in the sworn statements of Sundaram, his
admission that "[t]he alleged prohibited drugs found in [his] possession were
for [his] own personal use and not for sale or distribution"25 could easily refer
to the drugs recovered from either operation. The ponencia' s reliance on this
statement to affirm the conviction of the appellant is therefore unwarranted.

It must be emphasized that in cases involving illegal possession of

dangerous drugs, the volume of drugs involved is significant to the charge
against the accused. The range of the imposable penalty depends on the
quantity of drugs - the larger the amount, the more severe the penalty. 26 By
conclusively holding that the identity and integrity of the drug evidence were
preserved, the admissions of the appellant were dangerously interpreted
beyond their actual meaning. In my view, the Court should exercise prudence
and judiciousness in assigning weight to these extrajudicial statements of the
appellant.

II.

Even if the ponencia correctly considered the sworn statements as an

extrajudicial confession, this only forms a prima facie case against the
appellant. 27 As well, Section 3, Rule 133 of the Rules of Court provides that
the extra-judicial confession of an accused shall not be sufficient ground for
conviction unless corroborated by evidence of corpus delicti.

The corpus delicti in drugs cases is the confiscated drug itself, and the
manner through which its identity is preserved with moral certainty is through
compliance with Section 21, 28 Article II ofR.A. No. 9165. This section lays

22
Ponencia, p. 18; emphasis in the original.
23
Id.
24
Id. at 20.
25
CA rollo, p. 25.
26
R.A. No. 9165, Art. IJ, Sec. 11.
27
People v. Satorre, G.R. No. 133858, August 12, 2003 , 408 SCRA 642, 648.
28
The relevant paragraph of this section reads:
 Dissenting Opinion 7 G.R. No. 238873

down the chain of custody rule, the primary purpose of which is to ensure that
the dangerous drugs presented before the trial court are the same items
confiscated from the accused.

The ponencia ruled that the testimonies of the arresting officer and the
forensic chemist sufficiently established every link in the chain of custody. 29
With due respect, I again disagree.

As a mode of authenticating evidence, the Court requires the

prosecution to establish the following links in the chain of custody: first, the
seizure and marking, if practicable, of the illegal drugs recovered from the
accused by the apprehending officer; second, the turnover of the illegal drugs
s~ized by the apprehending officer to the investigating officer; third, the
turnover by the investigating officer of the illegal drugs to the forensic chemist
for laboratory examination; and fourth, the turnover and submission of the
marked illegal drugs seized from the forensic chemist to the court. 30

The marking of the drug evidence, as the initial step in the chain of
custody, is essential because it is the primary reference point for the
succeeding. custodians of the confiscated drugs. 31 The apprehending officers
are required to immediately mark the seized items upon their confiscation, or
at the "earliest reasonably available opportunity," 32 in order to separate the
marked items from all other similar or related evidence.

After the marking, the atTesting officers must immediately conduct a

physical inventory and photograph the seized items in the presence of the
following: (a) the accused or the person from whom the items were
confiscated, or his representative or counsel; (b) a representative from the
media; ( c) a representative from the Department of Justice (DOJ); and (d) any
elected public official. They should also sign the inventory and be given a
copy thereof. If the drugs were confiscated pursuant to a search warrant,
the Implementing Rules and Regulations of R.A. No. 9165 explicitly state
that the physical inventory and photographing should be conducted at
the place where the warrant is served. 33

SEC. 2 1. Custody and Disposilion 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 wel l as
instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or
surrendered, for proper disposition in the following manner:
(]) The apprehending team having initial custody and control of the drugs shall,
immediate ly 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 representat ive or counsel, a representative from the media and
the Department of Justice (DOJ), and any elected public official who shall be requ ired to
sign the copies of the inventory and be given a copy thereof[.]
29
Ponencia, p. 18.
30 Peoplev. Nandi, G.R. No. 188905, July 13, 2010, 625 SCRA 123, 133.
31
People v. Alejandro, G.R. No. 176350, August I0, 2011 , 655 SCRA 279, 289.
32
Peoplev. Sabdula, G.R. No. 184758, April 21, 20 14, 722 SCRA 90, 100.
33
Sec. 21 (a).
Dissenting Opinion 8 G.R. No. 238873

In the 1999 Philippine National Police Drug Enforcement Manual

(PNPDEM),34 the operating manual in place at the time of this case, the police
officers serving a search warrant were also directed to perform the following:

CHAPTERV

xxxx

ANTI-DRUG OPERATIONAL PROCEDURES

xxxx

V. SPECIFIC RULES

xxxx

B. Conduct of Operation: (As far as practicable, all operations must be

officer led)

xxxx

2. Service of Search Warrant - the following are the procedures

in effecting the service of search warrant:

xxxx

h. Before entry, the Search Warrant shall be served by having a copy

received by the respondent or any responsible occupant of the place to be
searched;

1) In all cases, the search must be witnessed by the owner/occupant

and in the presence of at least two (2) responsible persons in the vicinity,
preferably two (2) barangay/town officials;

2) Only those personal property particularly described in the search

warrant shall be seized to wit:

a. subject matter of the offense;

b. stolen or embezzled and otherproceeds (sic) of fruits of the
offense;
c. used or intended to be used in the commission of an offense;
d. objects which are illegal per se, e.g. F/As and explosives; and
e. those that may be used as proof of the commission of the offense.

i. If the house or building to be searched has two or more rooms or

enclosures, each rooms or enclosures must be searched one at a time in the
presence of the occupants and two (2) witnesses;

j. The search group and evidence custodian, supervised by the

team leader, shall take actual physical inventory of the evidence seized
by weighing or counting, as the case may be, in the presence of the

34
PNPM-D-0-3-1-99 [NG], the precursor anti-illegal drug operations manual prior to the 2010 and 20 I
AIDSOTF Manual.
Dissenting Opinion 9 G.R. No. 238873

witnesses to include the suspect who must be placed under arrest upon
discovery of any of the items described in the search warrant.

k. The duly designated searching element who found and seized

the evidence must mark the same with his initials and also indicate the
time, date and place where said evidence was found and seized and
thereafter turn it over to the duly designated evidence custodian who
shall also mark the evidence and indicate the time, date and place he
received such evidence;

1. Take photographs of the evidence upon discovery without

moving or altering its position in the place where it is placed, kept or
hidden:

m. Weigh the evidence seized in the presence of the occupants

and witnesses and prepare the drug weighing report to be signed by the
arresting officers, evidence custodian, occupants an[d] witnesses.
Again, take photographs of the evidence while in the process of
inventory and weighing with the registered weight in the weighing scale
focused by the camera;

n. Prepare a receipt and drug weighing report based on the actual

physical inventory and weighing of the evidence found and seized and
furnished the owner/possessor copies thereof or in his absence the occupant
the premises and to the two (2) other witnesses in the conduct of search;

o. Require the owner or occupant of the premises and the two (2)
witnesses to execute and sign a certification that the search was conducted
in an orderly manner in their presence and that nothing was lost or destroyed
during the search and nothing was taken except those mentioned in the
search warrant;

p. Only the duly designated evidence custodian shall secure and

preserve the evidence in an evidence bag or appropriate container and
thereafter ensure its immediate presentation before the collli that issued the
search warrant;

q. The applicant shall cause the return of the search warrant (inc)
together with the receipt of the seized evidence immediately after service of
the warrant with p[r]ayer to the court that the evidence would be forwarded
to PNP CLG for laboratory examination;

r. Upon completion of search, seizure and arrest and unless the

tactical interrogation of the suspect on the scene shall lead to a follow-up
operation, the team leader shall consolidate his forces to see to it that no
ransacking or looting or destruction of prope1iy is committed;

s. Thereafter, the team shall immediately return to unit headquarters

with the suspect and evidence for docrnnentation. (Emphasis and
underscoring supplied)

Here, it does not appear fro m the ponencia that the packets of
njarijuana, which were confiscated by virtue of the implementation of the
s~arch warrant, were immediately marked in Sundaram' s residence. Neither
do the records reflect this.
Dissenting Opinion 10 G.R. No. 238873

In his testimony, P02 Maderal, one of the arresting officers, narrated

that he placed markings on the seized items:

[(Direct Examination ofP02 Madera!)]

[Prosecutor Felixberto L. Guiratan]

Q By the way, if you recall, were there markings on the
specimen marijuana?

[P02 Maderal]
A Yes, Sir, my initial[s].

Q Who did the markings?

A I was the one.

Q If you recall also what were the markings you did on the one
(1) sachet of marijuana recovered during the buy-bust?

A REMA for the one (1) tea bag during the buy-bust. For the
nineteen (19) tea bags it is marked RBMAl to RBMA 19; for the
twenty-six (26) tea bags it is marked RBMB 1 to RBMB 26; for the
twenty-nine (29) tea bags the markings were RBMC 1 to RBMC29;
and the other one RBMD to RBMD 1.35

P02 Madera!, however, did not specify that these markings were
immediately made at the place of the search. His testimony is also
incongruous with the documentary evidence of the prosecution, particularly
with the Certificate of Inventory and the Request for Laboratory Examination.
While P02 Maderal stated that he supposedly placed markings on the 74
individual bags of marijuana and on the other separate containers of
marijuana, these markings were not reflected in the Certificate of
Inventory. The pertinent portion of the inventory reads:

This is to certify further that the item was recovered and confiscated
from the suspect's possession and control, during the said operation.

1) ONE HUNDRED PESO BILL, SN: EG768699, MARKED

MONEY WITH P600.00 ALL PLACE[D] INSIDE A BLACK
WALLET.
2) NINETEEN (19) TEA BAGS OF MARIJUANA DRIED
LEAVES CRUSHED ALL PLACE[D] INSIDE COLOR
BLACK BAG.
3) TWENTY[-]SIX (26) TEA BAGS OF MARIJUANA DRIED
CRUSHED LEAVES WITH SEEDS
4) TWENTY[-]NINE (29) TEA BAGS OF MARIJUANA DRIED
CRUSHED LEAVES WITH SEEDS ALL PLACE[D] IN
SEP ARATE CELLOPHANES
5) DRIED [CRUSHED] LEAVES OF MARIJUANA PLACE[D]
INSIDE GOLDEN YELLOW PLASTIC ICE CREAM
CONTAINER.

35
TSN, August I 0, 2006, pp. 26-27.
 Dissenting Opinion 11 ·G.R. No. 238873

6) ONE (1) WHITE CELLOPHANE CONTAINING

MARIJUANA DRIED STALKS.36

Oddly, the Request for Laboratory Examination37 indicates that these

marijuana packets were marked as follows:

Quantity/Description Exhibit
1. Nineteen (19) packets/teabags Marked as exhibit RBM-A-08-03-04,
of suspected dried Marijuana RBM-Al-08-03-04, through RBM-
[crushed] leaves with seeds all A19-08-03-04.
placed in a color black bag.
2. Twenty[-]six (26) Marked as exhibit RBM-B-08-03-04
packets/teabags of suspected and RBM-Bl-08-03-04 through
dried Marij uana [crushed] RBM-B26-08-03-04.
leaves with seeds placed inside
plastic cellophane.
3. Twenty[-]nine (29) Marked as exhibit RBM-C-08-03-04
packets/teabags of suspected and RBM-Cl-08-03-04 through
dried Marijuana [crushed] RBM-C29-08-03-04.
leaves with seeds placed inside
plastic cellophane.
4. One (1) cellophane color white Marked as exhibit RBM-D-08-03-04
of suspected several dried and RBM-D1-08-03-04.
Marijuana stalks.
5. Marijuana dried [crushed] Marked as exhibit RBM-El-08-03-
leaves with seeds placed inside 04.38
[oblong] color golden yellow
plastic ice cream container.

P02 Maderal testified that the Certificate of Inventory was prepared

right after the search, 39 and the rest of the documentation was completed after
the apprehending team returned to their office. This includes the Request for
Laboratory Examination,40 the first document on record that reflects the
markings P02 Madera! purportedly made. However, it should be borne in
mind that the Request for Laboratory Examination signals the turnover of the
drug evidence to the forensic chemist. As such, it is relevant only for purposes
of documenting the status of the confiscated drugs prior to its transfer to the
succeeding custodian in the chain of custody. It cannot establish that markings
were immediately made thereon because at that stage, a significant amount of
time had already passed from the seizure of the dangerous drugs.

Had P02 Maderal immediately marked the seized drugs, the first record
of these markings should be the Certificate of Inventory, the preparation of
which follows right after making these markings. The prosecution could have
also shown that the photographs of the confiscated items contain the markings
that P02 Madera! described in his testimony. And yet, the photographs taken

36
Exh ibit "D," index of exhibits, p. 9.
37
Exhibit "O," index of exhibits, pp. 22-23.
38
Id.; emphasis in the original.
39
TSN, August I 0, 2006, p. 14.
40
Id. at 2 1-22.
Dissenting Opinion 12 G.R. No. 238873

at the place of the arrest do not exhibit each of the confiscated plastic sachets
and containers of marijuana, or that these were marked accordingly. 41 The
photos of the seized drugs laid out side by side were already taken at the
apprehending team's office. 42 Again, none of the items appear to have been
marked.43

Given the foregoing, it is clear that there was no marking made during
the inventory-taking, which is apparent from the lack of the marking details
in the Certificate of Inventory and the pictures presented in evidence, and that
the marking was made only prior to submission of the seized drugs to the
laboratory as shown in the Request for Laboratory Examination. The Court
c.ould only suppose that the markings were made sometime between the
intervening period from the confiscation of the drugs and the preparation of
the Request for Laboratory Examination. This is precisely the ambiguity that
the chain of custody rule seeks to prevent.

As the Court explained in People v. Dahil, 44 the immediate marking of

the evidence is a necessary safeguard against the planting, switching, and
tampering of the seized dangerous drugs - the failure to do so would cast
doubts on the authenticity of the corpus delicti:

"Marking" means the placing by the apprehending officer or the

poseur-buyer of his/her initials and signature on the items seized. Marking
after seizure is the starting point in the custodial link; hence, it is vital that
the seized contraband be 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 the criminal proceedings, thus,
preventing switching, planting or contamination of evidence.

It must be noted that marking is not found in R.A. No. 9165 and is
different from the inventory-taking and photography under Section 21 of
the said law. Long before Congress passed R.A. No. 9165, however, this
Court had consistently held that failure of the authorities to
immediately mark the seized drugs would cast reasonable doubt on the
authenticity of the corpus delicti. 45 (Emphasis supplied)

It should be further emphasized that marking is a significant

preparatory act to the inventory and photographing of dangerous drugs, as the
succeeding links in the chain of custody are supposed to record the marks
placed on the confiscated drug evidence. 46 A gap in these initial custodial
requirements makes it difficult for the court to keep track of the evidence
while it moves along the chain of custody. Notably, the police officers in this
case were armed with a search warrant and yet, they failed to comply with

41
Exhibits "K-2" and "K-3," "L-2" and "L-3," index of exhibits, pp. 18-19.
42
TSN, August 10, 2006, pp. 18-19.
43
Exhibits "K-1" and "L-1," index of exhibits, pp. 18-19.
44
G.R. No. 212 196, January 12, 2015, 745 SCRA 221.
45
Id. at 240-241.
46
See People v. Lumaya, G.R. No. 23 1983, March 7, 2018, 858 SCRA 114, 13 1-132.
 Dissenting Opinion 13 G.R. No. 238873

these requirements. The Court's observations m People v. Gayoso47 1s

instructive on this matter:

While marking of the evidence is allowed in the nearest police

station, this contemplates a case ofwarrantless searches and seizures. Here,
the police officers secured a search warrant prior to their operation.
They therefore had sufficient time and opportunity to prepare for its
implementation. However, the police officers failed to mark
immediately the plastic sachets of shabu seized inside appellant's house
in spite of an Inventory of Property Seized that they prepared while
still inside the said house. The failure of the arresting officers to comply
with the marking of evidence immediately after confiscation constitutes the
first gap in the chain of custody. 48 (Emphasis supplied)

Under the 1999 PNPDEM, the police officers implementing a search

warrant were even required to mark the evidence twice: after it was found by
the searching element, and upon turn-over to the duly designated evidence
custodian. The apprehending team did not comply with either of these
requirements. They likewise failed to indicate the weight of each packet of
marijuana in either the inventory or the Request for Laboratory Examination,
further engendering doubts in my mind that the drugs presented in court were
indeed the same ones taken from the appellant.

III.

Another glaring lapse on the part of the apprehending team is the

absence of a DOJ representative during the inventory and photographing of
the seized items. The mandatory presence of the witnesses to the inventory
a:nd photographing is required in all instances of seizure and confiscation of
dangerous drugs. More so when the drug evidence was seized by virtue of a
search warrant, which, like a buy-bust operation, requires advance planning
and preparation.

The police officers in this case had time to obtain a search warrant,
prepare for the buy-bust operation that preceded the service of the warrant,
and to make the necessary arrangements for the subsequent enforcement of
the search warrant. Clearly, during the planning stage for the operation, the
police officers likewise had ample time to secure the presence of the required
witnesses. However, the only witnesses at the time of the inventory and
photographing were the barangay officials and the representatives from the
media. 49 They did not obtain the presence of a DOJ representative.

The Court held in People v. Ramos 50 that when there are lapses in the
chain of custody rule, particularly when not all of the mandatory witnesses are
present, there must be a "justifiable reason for such failure [to secure the
avendance of these witnesses] or a showing of any genuine and sufficient
47
G.R. No. 206590, March 27, 2017, 821 SCRA 516.
48
Id. at 530.
49
Exh ibit "D," index of exhibits, p. 9.
50
G.R. No. 233744, February 28, 20 18, 857 SCRA 175.
Dissenting
I
Opinion 14 G.R. No. 238873

effort to secure the required witnesses." 51 None was provided in the decision
to justify the absence of the DOJ representative. There is also no indication in
the records that the prosecution explained this lapse, or at the very least, that
t~e apprehending team exerted earnest efforts to secure the attendance of the
absent witness.
I

1 In Dizon v. People, 52 the Court held that the deviation from the
requirements of Section 21, coupled by the absence of a justifiable ground
therefor, compromised the integrity and evidentiary value of the corpus
delicti:

In this case, the apprehending team plainly failed to comply with the
witness requirements under the law, i.e., that the photographing and
inventory of the seized items be witnessed by a representative from the
media, the Department of Justice (DOJ), and any elected public official. The
records are clear: only two (2) barangay officials were present to witness
,I the operation, as observed by the RTC:

xx xx

Worse, there was no indication whatsoever that the apprehending

team attempted, at the very least, to secure the presence of the other required
witnesses.

Thus, as a result of the foregoing irregularities committed by the

govenunent authorities, the conviction of Dizon now hangs in the balance.
In this respect, in order not to render void the seizure and custody over the
evidence obtained from the latter, the prosecution is thus required, as a
matter of law, to establish the following: (i) that such non-compliance was
based on justifiable grounds, and (ii) that the integrity and evidentiary value
of the seized items were properly preserved.

x xxx

At the outset, the Court finds it brazen of the police officers to

recognize their fatal error in procedure and yet at the same time offer no
explanation or justification for doing so, which, as stated above, is required
by 'the law. What further catches the attention of the Court is the fact
that Dizon was apprehended pursuant to a search warrant and
therefore with more reason, the police officers could have secured the
presence of the other witnesses, i.e., the DOJ representative and media
representative.

However, despite the advantage of planning the operation

ahead, the apprehending team nonetheless inexplicably failed to
comply with the basic requirements of Section 21 of R.A No. 9165. x x
x 53 (Emphasis supplied; emphasis in the original omitted)

Here, the apprehending team committed grave procedural lapses not

only in the initial custody and handling of the seized marijuana, but with the

51
Id. at 190; emphasis and underscoring omitted.
52
G.R. No. 239399, March 25, 2019.
53 Id. at 8-9.
 I'.>issenting Opinion 15 G.R. No. 238873

W"itness requirements of Section 21, Article II of R.A. No. 9165. No

explanation was alleged or proven to justify these deviations from these
statutory requirements. Instead, the ponencia relied heavily on the vague
st atements in the appellant's Counter-Affidavits to prove that the identity and
integrity of the drug evidence were preserved.

j To be sure, the Court has not veered away from affirming the conviction
9f an accused when the requirements of Section 21 are duly observed. In
P,articular, Santos v. People54 and Concepcion v. People55 involve the
iinplementation of a search wan-ant, and in both instances, the arresting
qfficers were easily able to comply with all the requirements of Section 21 .
Jhese cases exhibit the reasonableness of the custodial requirements in R.A.
liJo. 9165, and that it is entirely within the realm of possibility for law
enforcement to perform their duties accordingly.
'

I The Court would be remiss in its duty to faithfully apply the law if,
despite the inattentive and careless manner by which police officers
~erformed their functions, the conviction of the accused would nonetheless be
affirmed. The gaps in the chain of custody cannot be justified by the
~mbiguous admissions of the appellant in this case. The anesting officers
vyere duty-bound to observe the chain of custody rule from the moment that
~angerous drugs were supposedly confiscated from the possession of the
appellant - regardless of any subsequent admission or confession on his part.
Failing this, the Court should not substitute the appellant's sworn
statements for the required proof of the integrity and evidentiary value
of the drug evidence, especially where, as here, the imprecise language of
these statements being extant.

I also respectfully disagree with the ponencia's conclusion that since

the present case involves a large volume of dangerous drugs, this "[goes]
against the possibility of planting or substitution by the police." 56 The amount
qf drugs involved should not dictate the manner by which the Court must
e~aluate the guilt of the accused. Section 21, Article II of R.A. No. 9165 does
not qualify its application depending on the volume of drugs involved.
The only matter under R.A. No. 9165, on which the quantity of drugs depends,
i~ the severity of the imposable penalty for the offense of illegal possession of
~angerous drugs. This underscores the necessity for the Court's adherence to
t~e chain of custody rule - to ensure that the accused is charged accurately
t0 the .last gram and found guilty only when the identity and integrity of the
drug evidence are duly preserved. Considering the police officers' blatant
djsregard of this rule in this case, I disagree with the finding of the ponencia
to affirm the conviction of the appellant.

.;I G.R. No. 242656, August 14, 2019.

5

55
G.R. No. 243345, March 11, 20 19.
56
Ponencia, p. 20.
 ..
Di~senting Opinion 16 G.R. No. 238873

Based on the foregoing, I vote to GRANT the present appeal and

A€QUIT the appellant Sundaram Magayon y Francisco on the basis of
reasonable doubt.