PEOPLE OF THE PHILIPPINES, 

Petitioner, v. MICHAEL KURT JOHN BULAWAN Y

ANDALES,Respondent.

G.R. No. 204441, June 08, 2016

DECISION

PEREZ, J.:

Before the Court is an appeal assailing the Decision1 dated 25 October 2012 of the Court of Appeals in CA-
G.R. CR No. 00798-MIN, which affirmed with modification the Judgment2 dated 24 August 2010 of the
Regional Trial Court (RTC), Cagayan de Oro City, Branch 25 in Criminal Case No. 2008-714, effectively
finding (accused-appellant) Michael Kurt John Bulawan y Andales guilty beyond reasonable doubt of
violation of Section 5, Article II of Republic Act No. 9165 (R.A. No. 9165) or theComprehensive Dangerous
Drugs Act of 2002.

Accused-appellant was charged with violation of Section 5, Article II of R.A. No. 9165, as follows:

That on November 10, 2008, at more or less 10:55 in the evening at Gusa National Highway, Cagayan de
Oro City, Philippines, and within the jurisdiction of the Honorable Court, the above-named accused, without
being authorized by law to sell, trade, administer, dispense, deliver, give away to another, distribute,
dispatch in transit or transport any dangerous drugs, did then and there willfully, unlawfully, criminally and
knowingly sell and/or offer to sell and give away to the arresting officer 101 Rodolfo S. de la Cerna, Jr.,
acting as poseur buyer, one (1) pack of dried marijuana fruiting tops with stalks wrapped in a magazine
paper weighing 13.98 grams, which upon qualitative examinations conducted thereon, give positive result to
the test for the presence of aforesaid dangerous drug.3 ChanRoblesVirtualawlibrary

Upon arraignment, accused-appellant, duly assisted by counsel, pleaded not guilty to the charge.4Trial on
the merits followed.

The prosecution relied on the testimony of 101 Rodolfo S. De La Cerna, Jr. (101 de la Cerna) of the
Philippine Drug Enforcement Agency (PDEA), who testified as follows:

That he executed an Affidavit in connection with this case [Exh. "F"]. On November 10, 2008, at about
10:55 in the evening, he was along Gusa [NJational Highway, particularly in front of "Starwood" acting as a
poseur buyer for marijuana. That the said operation was headed by I01 Neil Pimentel and they were backed
up by P03 Benjamin Jay Reycilez and I01 Gerald Pica. He was with their confidential informant who informed
him that there was already a transaction negotiated earlier for the purchase of [P]1,000.00 worth of
marijuana. They waited for the subject of the buy-bust for about five minutes. The accused arrived and he
was introduced to him by their CI. After he was introduced, the accused handed to him the marijuana
wrapped in a magazine paper. After the accused gave him the marijuana, he inspected it if to verify if it was
indeed marijuana and after confirming it, he made a "miss-call" signal to their team leader who was inside
the vehicle which was parked about 10 to 15 meters away from them. He then immediately announced that
he is a PDEA agent and he informed the accused of the latter's violation. On questioning of the Court, he
testified that there were only three of them, two [2] from the PDEA [he and Pimentel] and one [1] from the
CAIDTF [Reycitez]. He ordered them to "appraise the rights " of the accused when the latter was already
arrested. When asked by the Court why he was the only person who executed the Affidavit, he answered
that he was the poseur buyer and that he was responsible for the arrest of the accused, and it was already
dark, it was already 11:00 o'clock in the evening. He however testified that it is not a normal procedure in
the office that only one officer will execute an affidavit. He further testified that he did not prepare the buy
bust money in the amount of [P]1,000.00 and that when he met the accused, he had no [P]1,000.00 with
him and that he arrested the accused when the latter showed him the marijuana. He then informed the
accused of his rights and when the other members arrived, he conducted an inventory [Exhibit "G"] right at
the place, and then proceeded to the Office where he made the markings "RDC". He prepared a laboratory
request for examination [Exh. A]and he delivered the request including the specimen [Exhibit B] as well as
the accused to the crime laboratory for examination. The result was positive [Exhibit "C" and Exhibit "D"].
He also took photographs of the accused [Exhibit "H"]. Finally, he identified the accused who answered with
the name Michael Kurt John Bulawan.5 ChanRoblesVirtualawlibrary

On cross examination, the witness testified that:

Before he arrived at Gusam the CI had already contacted the accused and that he did not give any money
to the accused. He did not also bring any money for the buy-bust operation and that the accused delivered
the marijuana even without first receiving the money; that there was no pre-payment prior to the agreed
time of delivery and that he did not promise the accused that he will pay after the delivery. Fie brought
cellphone during the operation while the rest of the team brought with them their firearms and some
documents. The mediamen arrived at the office, not at the place where the operation tookplace.6 ChanRoblesVirtualawlibrary

The defense, on the other hand, hinged their case on the testimony of accused-appellant, to wit:
That on November 10, 2008 at about 10:00 o 'clock in the evening, he was at his house preparing to sleep
when he received a text message from his friend Joey Maalyao of Camella requesting him to go out from his
house and inviting him to attend the birthday party of the classmate of his wife, a nursing student. He told
Joey that he will not go out because he was tired as he had just took (sic) an exam. However, Joey insisted
so he went out of his house and saw the service vehicle of Joey, a Tamaraw FX parked at about 500 meters
away. His house is in the interior part. He then approached the vehicle and he became aware that there
were companions inside the tinted vehicle and he asked Joey who were these persons and Joey answered
that they were his cousins. There were about four of them inside the vehicle, one was the driver, one was at
the passenger side and there were two at the back. Joey was seated at the front seat. When he was
informed by Joey that they were his cousins, he went inside the vehicle. When the engine started, and was
in the vicinity of Lapasan the men inside started to search him bodily and they got his went inside the
vehicle. When the engine started, and was in the vicinity of Lapasan the men inside started to search him
bodily and they got his cellphone, wallet, and coins. They held his neck and hands and told him it was an
arrest. He then asked Joey was (sic) offense had him (sic) committed against him and why his companions
were searching him and Joey told him to be considerate since he was just pressured by those men. One of
the men beside him handed marijuana to him and to use it inside the vehicle. Then he was brought to the
office and they took his picture in front of the vehicle of his friend. The man who took the picture, he
identified later as 101 De la Cerna. That de la Cerna took out something from the vehicle owned by Joey
and forced him to point them out. He was then handcuffed by de la Cerna and was forced again to point out
to the items which were wrapped with a newspaper, then he was brought back to the office and was
detained thereat. At about 2:00 o'clock dawn he was brought to the PNP Crime laboratory at Patag, and
Joey was with them, then he was brought back to their office. He stayed in the office for three days. They
parted ways with Joey when he was already committed at the BJMP in Lumbia. He was later informed that
the PDEA agents did it to him in exchange for Joey because Joey was arrested in Carmen. He learned of this
information from his friend who is a neighbor of Joey in Camella and who visited him at Lumbia.7 ChanRoblesVirtualawlibrary

After weighing the evidence, the RTC convicted accused-appellant of illegal possession of dangerous drugs
under Section 11, Article II of R.A. No. 9165. The RTC found that although the identity of the alleged buyer,
seller, and object were established, two elements of illegal sale of dangerous drugs were still missing - the
consideration and the payment. As testified to by 101 de la Cerna himself, he did not bring any buy-bust
money and that there was no payment of the alleged marijuana he received from accused-appellant.8

Nevertheless, the RTC found accused-appellant liable for possession of dangerous drugs, which crime is
necessarily included in the offense charged. The RTC then disposed of the case in this manner:

WHEREFORE, premises considered, this Court finds the accused MICHAEL KURT JOHN BULAWAN Y
ANDALES GUILTY BEYOND REASONABLE DOUBT of the offense defined and penalized under
Section 11, Article II of R.A. 9165, the offense proved which is included in the offense charged in
the Information, and hereby sentences him to suffer the penalty of imprisonment for twelve [12]
years and one [1] day to thirteen [13] years, and to pay the Fine of Three Hundred Thousand
Pesos [P300,000.00], without subsidiary penalty in case of insolvency.

The accused shall be entitled to be credited in full of his preventive detention and the period of his actual
incarceration shall be deducted from the number of years with which the accused is to serve his sentence.

SO ORDERED.9 ChanRoblesVirtualawlibrary

Accused-appellant went before the Court of Appeals. After a review of the records, the appellate court found
accused-appellant guilty of illegal sale of dangerous drugs under Section 5, Article II of R.A. No. 9165.

Citing People v. Conception,10 the Court of Appeals held that Section 5, Article II of R.A. No. 9165 covers not
only the sale of dangerous drugs but also the mere act of delivery after the offer to buy by the entrapping
officer has been accepted by the seller.11

The Court of Appeals further held that, in convicting accused-appellant of Section 5, Article II of R.A. No.
9165, accused-appellant's right against double jeopardy was not violated. Citing  US v. Abijan,12the appellate
court held that when an accused appeals from the sentence of the trial court, he waives his constitutional
safeguard against double jeopardy and throws the whole case open to the review of the appellate court,
which is then called upon to render judgment as the law and justice dictate, whether favorable or
unfavorable to them, and whether they are assigned as errors or not.13

Thus, the Court of Appeals ruled:

WHEREFORE, premises considered, the Decision of the Regional Trial Court, Branch 25, Cagayan de Oro in
Criminal Case No. 2008-714 is AFFIRMED with MODIFICATION that accused-appellant MICHAEL KURT JOHN
BULAWAN y ANDALES is found guilty of violating Section 5, Article II of Republic Act No. 9165 otherwise
known as the Dangerous Drugs Act of 2002. He is hereby sentenced to suffer the penalty of life
imprisonment, without eligibility of parole, and to pay the fine of Five Hundred Thousand Pesos
([P]500,000.00).

SO ORDERED.14 ChanRoblesVirtualawlibrary

Accused-appellant is now before the Court, raising the following issues:15

I.
THE COURT OF APPEALS ERRED IN RULING THAT A BUY-BUST OPERATION WAS ACTUALLY CONDUCTED.

II.

THE COURT OF APPEALS ERRED IN RULING THAT THE CHAIN OF CUSTODY OF THE CORPUS DELICTI WAS
ESTABLISHED SUFFICIENTLY.

III.

THE COURT OF APPEALS ERRED IN UPHOLDING THE PRESUMPTION OF REGULARITY IN THE PERFORMANCE
OF DUTIES OF TFIE ARRESTING OFFICERS.

IV.

THE COURT OF APPEALS ERRED IN FINDING THAT THE GUILT OF THE ACCUSED-APPELLANT WAS PROVEN
BEYOND REASONABLE DOUBT.

V.

THE COURT OF APPEALS ERRED IN CONVICTING THE ACCUSED-APPELLANT OF A CRIME NOT CFIARGED IN
THE INFORMATION.

In sum, accused-appellant argues that his guilt was not established beyond reasonable doubt, and that he
cannot be convicted of delivery or possession of dangerous drugs when such was not charged in the
Information.16

After a thorough review of the records, we acquit accused-appellant.

Accused-appellant is charged, particularly, with unlawfully selling and/or offering to sell or give away
marijuana.17

For a successful prosecution of offenses involving the illegal sale of dangerous drugs under Section 5, Article
II of R.A. 9165; the following elements must be present: (1) the identities of the buyer and seller, object,
and consideration; and (2) the delivery of the thing sold and the payment for it. What is material is proof
that the transaction or sale actually took place, coupled with the presentation in court of evidence of corpus
delicti.18

In the case at bar, it is readily apparent that no sale was consummated as the consideration, much less its
receipt by accused-appellant, were not established. As testified on by 101 de la Cerna:

Pros.
Borja:
To witness, proceeding.
Q You mentioned earlier that there was a negotiation for the purchase
of P1,000.00 peso worth of marijuana, did you prepare money for
that operation?
A No, sir.
Q You mean when you met the accused, there was no P1,000.00 with
you?
A No, sir.
Q And you arrested him after he showed to you the marijuana?
A After he gave to me the marijuana sir.19
xxx xxx xxx
Court:
Q Did you bring the money at that time?
A No, Ma'am.
Q You mean you are supposed to conduct a buybust operation, you
did not bring any money to be given to the accused?
A It is agreed upon to conduct delivery.
Q What you are trying to tell this Court therefore, is that the accused
delivered drugs without receiving first the money?
A Yes, sir.20
xxx xxx xxx
Court:
To witness.
Q There was no pre-payment prior to the agreed time of delivery?
A No Your Honor.
Q You did not also promise him that you will pay it only after the
delivery?
A No, Your Honor.21

In People v. Dasigan,22 where the marked money was shown to therein accused-appellant but was not
actually given to her as she was immediately arrested when the shabu was handed over to the poseur-
buyer, the Court acquitted said accused-appellant of the crime of illegal sale of dangerous drugs.
Citing People v. Hong Yen E,23 the Court held therein that it is material in illegal sale of dangerous drugs that
the sale actually took place, and what consummates the buy-bust transaction is the delivery of the drugs to
the poseur-buyer and, in turn, the seller's receipt of the marked money. While the parties may have agreed
on the selling price of the shabu and delivery of payment was intended, these do not prove consummated
sale. Receipt of the marked money, whether done before delivery of the drugs or after, is required.

In the case at bar, there is more reason to acquit accused-appellant of the crime of illegal sale of dangerous
drugs as the prosecution was not able to prove that there was even a consideration for the supposed
transaction.

The prosecution claimed that that there was prior negotiation between the confidential informant and
accused-appellant. The prosecution, however, failed to adduce any evidence of such prior negotiation. In
fact, nothing can be gained from the records and from the testimonies of the witnesses as to how the
supposed confidential informant conducted the alleged negotiation with accused-appellant.

Repeatedly, this Court has reminded the prosecution of its duty to present a complete picture of 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
drug subject of sale."24

In the present case, no information was presented by the prosecution on the prior negotiation between the
confidential informant and accused-appellant. Moreover, the testimony of I01 de la Cerna failed to show any
kind of confirmation of the alleged prior negotiation. Thus, there is no proof of the offer to purchase
dangerous drugs, as well as the promise of the consideration.

Also, the Court finds that the prosecution failed to establish the identity and integrity of the corpus delicti of
the offense charged.

In People v. Torres,25 we held that the identity of the prohibited drug must be proved with moral certainty. It
must also be established with the same degree of certitude that the substance bought or seized during the
buy-bust operation is the same item offered in court as exhibit. In this regard, paragraph 1, Section 21,
Article II of R. A. No. 9165 (the chain of custody rule) provides for safeguards for the protection of the
identity and integrity of dangerous drugs seized, to wit:

SECTION 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant
Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia
and/or Laboratory Equipment. - The PDEA shall take charge and have custody of all dangerous drugs, plant
sources of dangerous drugs, controlled precursors and essential chemicals, as well as
instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for
proper disposition in the following manner:

1. The apprehending team having initial custody and control of the 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.26
However, this Court has also said that while the chain of custody should ideally be perfect, in reality it is not
"as it is almost always impossible to obtain an unbroken chain." The most important factor is the
preservation of the integrity and the evidentiary value of the seized items as they will be used to determine
the guilt or innocence of the accused.27cralawred

In the case at bar, the chain of custody of the seized alleged marijuana was not sufficiently established,
thereby casting doubt on the identity and integrity of the supposed evidence.28

The foregoing is I01 dela Cerna's testimony on the handling of the seized alleged marijuana:

Q And you mentioned about marijuana, if that marijuana be shown to you,

will you be able to identify it?
A Yes, sir.
Q Which I am showing to you this marijuana leaves wrapped in a magazine
paper, is this the one you said delivered to you?
A Yes, sir.
Q And why do you say that this is the one?
A I put marking on it.
Q Where did you place the marking?
A At the left portion sir.
Q Where did you make the marking?
A At the office sir.

That is all that was said as regards the handling of the seized item. The prosecution failed to prove that the
identity and integrity of the seized item was preserved - whether it was kept by I01 dela Cerna from the
time accused-appellant allegedly handed it to him until the time he marked it in the office, whether I01 dela
Cerna turned it over to his superior as is the usual procedure, whether it was returned to I01 dela Cerna for
it to be brought to the crime laboratory, whether the specimen was intact when the crime laboratory
received it, whether the crime laboratory officers marked and sealed the seized item after it was tested, and
whether the proper officers observed the mandated precautions in preserving the identity and integrity of
the seized item until it was presented in open court.

On the contrary, what we can deduce from I01 dela Cerna's testimony is the fact that the seized item was
not placed in a plastic container and sealed upon confiscation. As sworn to by PSI Erma Condino Salvacion,
the forensic chemist who conducted the laboratory test on the seized item, what she tested were "suspected
Marijuana leaves wrapped in a magazine paper with markings 'RDC-D'."29Also, when the said item was
presented in open court for identification, it was still wrapped in magazine paper.30

In People v. Habana,31 as reiterated in People v. Martinez, et al.,32 we ruled that:

Usually, the police officer who seizes the suspected substance turns it over a supervising officer, who would
then send it by courier to the police crime laboratory for testing. Since it is unavoidable that possession of
the substance changes hand a number of times, it is imperative for the officer who seized the substance
from the suspect to place his marking on its plastic container and seal the same, preferably with adhesive
tape that cannot be removed without leaving a tear on the plastic container. At the trial, the officer can then
identify the seized substance and the procedure he observed to preserve its integrity until it reaches the
crime laboratory.

If the substance is not in a plastic container, the officer should put it in one and seal the same. In
this way the substance would assuredly reach the laboratory in the same condition it was seized from the
accused. Further, after the laboratory technician tests and verifies the nature of the substance in the
container, he should put his own mark on the plastic container and seal it again with a new seal since the
police officer's seal has been broken. At the trial, the technician can then describe the sealed condition of
the plastic container when it was handed to him and testify on the procedure he took afterwards to preserve
its integrity.

If the sealing of the seized substance has not been made, the prosecution would have to present
every police officer, messenger, laboratory technician, and storage personnel, the entire chain of
custody, no matter how briefly one's possession has been. Each of them has to testify that the
substance, although unsealed, has not been tampered with or substituted while in his care.
(Emphasis supplied.)

In the case at bar, as the seized substance was not sealed, the prosecution should have presented all the
officers who handled said evidence from the time it left the person of the accused to the time it was
presented in open court. The prosecution did not.

Time and again, this Court has held that "the failure to establish, through convincing proof, that the integrity
of the seized items has been adequately preserved through an unbroken chain of custody is enough to
engender reasonable doubt on the guilt of an accused, x x x A conviction cannot be sustained if there is a
persistent doubt on the identity of the drug."33

On a final note, in People v. Maongco34 we clarified that possession is necessarily included in the sale of
dangerous drugs. Thus:

Well-settled in jurisprudence that the crime of illegal sale of dangerous drugs necessarily includes the crime
of illegal possession of dangerous drugs. The same ruling may also be applied to the other acts penalized
under Article II, Section 5 of Republic Act No. 9165 because for the accused to be able to trade, administer,
dispense, deliver, give away to another, distribute, dispatch in transit, or transport any dangerous drug, he
must necessarily be in possession of said drugs.35

In the present case, however, as the prosecution failed to establish every link in the chain of custody of the
subject dangerous drugs, thus compromising its identity and integrity, accused-appellant cannot be held
liable for illegal possession of dangerous drugs.
chanrobleslaw

WHEREFORE, premises considered, we GRANT the appeal. The Court ACQUITS accused-appellant Michael

Kurt John Bulawan y Andales and ORDERS his immediate release from detention, unless he is detained for
another lawful cause.

SO ORDERED. cralawlawlibrary

Velasco, Jr., (Chairperson), Mendoza,** and Reyes, JJ., concur.

Peralta, j., on official leave.