PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.

GARRY DELA CRUZ y DE

GUZMAN, accused-appellant.

G.R. No. 205821. October 1, 2014.

Principles/Doctrines: RA 9165, Sec. 5 and 11

Law enforcers should not trifle with the legal requirement to ensure integrity in the chain of
custody of seized dangerous drugs and drug paraphernalia. This is especially true when only a
miniscule amount of dangerous drugs is alleged to have been taken from the accused.

FACTS:
Dela Cruz was arrested in a buy-bust operation which was allegedly conducted after a
civilian informant tipped the police that a certain “Gary” was selling illegal drugs. The buy-bust
operation team included PO1 Bobon, as poseur-buyer, and SPO1 Roca, as backup arresting
officer. It was agreed that “PO1 Bobon would remove his bull cap once the sale of illegal drugs
was [consummated].” The buy-bust team prepared a 100.00 bill with serial number KM 776896
as marked money. The buy-bust operation team, accompanied by the informant, went to the
target area. The informant initially brokered the sale of shabu. It was PO1 Bobon who handed
the marked money to Dela Cruz in exchange for one (1) heat-sealed plastic sachet of suspected
shabu. After which, he removed his bull cap. SPO1 Roca then arrested Dela Cruz.

Upon frisking Dela Cruz, PO1 Bobon supposedly recovered six (6) more heat-sealed
sachets of suspected shabu. PO1 Bobon placed the sachet he purchased from Dela Cruz in his
right pocket and the six (6) other sachets in his left pocket.

For his part, dela Cruz acknowledged that on the morning of September 14, 2004, he
was in the target area. As he was leaving the comfort room, someone embraced him from
behind, while another poked a gun at him. He was then handcuffed and brought to an L-300
van which was parked in front of Food Mart. Inside the van, he was asked if he was JingJong,
alias Jong-Jong. Despite his denials, he was brought to the police station. It was when he was
already detained that he learned that he was charged for violation of the Comprehensive
Dangerous Drugs Act of 2002.

RTC: Convicted Dela Cruz of violation of Article II, Section 5 of the Comprehensive
Dangerous Drugs Act of 2002 and sentenced him to life imprisonment and a fine of
PhP500,000.00. He was also convicted for violating Article II, Section 11 of the Comprehensive
Dangerous Drugs Act of 2002 and sentenced to 12 years and one day up to 14 years
imprisonment
and a fine of PhP300,000.00.

On appeal to the Court of Appeals, dela Cruz assailed the prosecution's failure to
establish the chain of custody of the seized sachets of shabu. He also assailed the validity of the
buy-bust operation and the prosecution's failure to present the informant in court. CA however
affirmed the conviction.
ISSUE: Whether or not the prosecution able to establish compliance with the chain of custody
requirements under Section 21.

HELD: No. The significance of complying with Section 21's requirements cannot be
overemphasized. Non-compliance is tantamount to failure in establishing identity of corpus
delicti, an essential element of the offenses of illegal sale and illegal possession of dangerous
drugs. By failing to establish an element of these offenses, non-compliance will, thus, engender
the acquittal of an accused.

We reiterate the extensive discussion on this matter from our recent decision in People v.
Holgado:

As this court declared in People v. Morales, "failure to comply with Paragraph 1,

Section 21, Article II of RA 9165 implie[s] a concomitant failure on the part of the
prosecution to establish the identity of the corpus delicti. It "produce[s] doubts as to the
origins of the [seized paraphernalia]." The significance of ensuring the integrity of drugs
and drug paraphernalia in prosecutions under Republic Act No. 9165 is discussed in
People v. Belocura:

Worse, the Prosecution failed to establish the identity of the prohibited drug that
constituted the corpus delicti itself. The omission naturally raises grave doubt about any
search being actually conducted and warrants the suspicion that the prohibited drugs
were planted evidence. In every criminal prosecution for possession of illegal drugs, the
Prosecution must account for the custody of the incriminating evidence from the
moment of seizure and confiscation until the moment it is offered in evidence. That
account goes to the weight of evidence. It is not enough that the evidence offered has
probative value on the issues, for the evidence must also be sufficiently connected to and
tied with the facts in issue. The evidence is not relevant merely because it is available but
that it has an actual connection with the transaction involved and with the parties
thereto. This is the reason why authentication and laying a foundation for the
introduction of evidence are important. (Emphasis supplied)

Compliance with the chain of custody requirement provided by Section 21, therefore,
ensures the integrity of confiscated, seized, and/or surrendered drugs and/or drug
paraphernalia in four (4) respects: first, the nature of the substances or items seized; second,
the quantity (e.g., weight) of the substances or items seized; third, the relation of the
substances or items seized to the incident allegedly causing their seizure; and fourth, the
relation of the substances or items seized to the person/s alleged to have been in possession of
or peddling them. Compliance with this requirement forecloses opportunities for planting,
contaminating, or tampering of evidence in any manner.

By failing to establish identity of corpus delicti, non-compliance with Section 21

indicates a failure to establish an element of the offense of illegal sale of dangerous drugs. It
follows that this noncompliance suffices as a ground for acquittal.
 In People v. Nandi , 34 this court explained that four (4) links "should be established in
the chain of custody of the confiscated item:

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 from the forensic chemist to the court."

In view of the foregoing, the Court is of the considered view that chain of custody of the
illicit drug seized was compromised. Hence, the presumption of regularity in the performance
of duties cannot be applied in this case. Given the flagrant procedural lapses the police
committed in handling the seized shabu and the obvious evidentiary gaps in the chain of its
custody, a presumption of regularity in the performance of duties cannot be made in this case.
A presumption of regularity in the performance of official duty is made in the context of an
existing rule of law or statute authorizing the performance of an act or duty or prescribing a
procedure in the performance thereof. The presumption applies when nothing in the record
suggests that the law enforcers deviated from the standard conduct of official duty required by
law; where the official act is irregular on its face, the presumption cannot arise. In light of the
flagrant lapses we noted, the lower courts were obviously wrong when they relied on the
presumption of regularity in the performance of official duty.

In this case, the Regional Trial Court acknowledged that no physical inventory of the
seized items was conducted. Similarly, there is nothing in the records to show that the seized
items were photographed in the manner required by Section 21. Likewise, none of the persons
required by Section 21 to be present (or their possible substitutes) have been shown to be
present.

The prosecution effectively admits that from the moment of the supposed buy-bust
operation until the seized items' turnover for examination, these items had been in the sole
possession of a police officer. In fact, not only had they been in his possession, they had been in
such close proximity to him that they had been nowhere else but in his own pockets. Keeping
one of the seized items in his right pocket and the rest in his left pocket is a doubtful and
suspicious way of ensuring the integrity of the items. Contrary to the Court of Appeals' finding
that PO1 Bobon took the necessary precautions, we find his actions reckless, if not dubious.

Even without referring to the strict requirements of Section 21, common sense dictates
that a single police officer's act of bodily-keeping the item(s) which is at the crux of offenses
penalized under the Comprehensive Dangerous Drugs Act of 2002, is fraught with dangers. One
need not engage in a meticulous counter-checking with the requirements of Section 21 to view
with distrust the items coming out of PO1 Bobon's pockets. That the Regional Trial Court and
the Court of Appeals both failed to see through this and fell — hook, line, and sinker — for PO1
Bobon's avowals is mind-boggling.

Moreover, PO1 Bobon did so without even offering the slightest justification for
dispensing with the requirements of Section 21. part from the blatantly irregular handling by
PO1 Bobon of the seven (7) sachets, it is also admitted that no physical inventory and taking of
photographs in the presence of dela Cruz or of any of the other persons specified by Section 21
were conducted.

As in People v. Garcia, the mere marking of seized paraphernalia, will not suffice to
sustain a conviction in this case. The miniscule amount of narcotics supposedly seized from dela
Cruz amplifies the doubts on their integrity. In total, the seven (7) sachets supposedly contained
all of 0.1405 gram of shabu. This quantity is so miniscule it amounts to little more than 7% of
the weight of a five-centavo coin (1.9 grams) or a one-centavo coin (2.0 grams).

NOTES;

Sec 21., RA 9165:

(1) The apprehending team having initial custody and control of the dangerous drugs,
controlled precursors and essential chemicals, instruments/paraphernalia and/or laboratory
equipment shall, immediately after seizure and confiscation, conduct a physical inventory of the
seized items 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, with an
elected public official and a representative of the National Prosecution Service or the media
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, finally, That
noncompliance of 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 and custody over said items.

(2) Within twenty-four (24) hours upon confiscation/seizure of dangerous drugs, plant sources
of dangerous drugs, controlled precursors and essential chemicals, as well as
instruments/paraphernalia and/or laboratory equipment, the same shall be submitted to the
PDEA Forensic Laboratory for a qualitative and quantitative examination;

(3) A certification of the forensic laboratory examination results, which shall be done by the
forensic laboratory examiner, shall be issued immediately upon the receipt of the subject
item/s:
Provided, That when the volume of dangerous drugs, plant sources of dangerous drugs, and
controlled precursors and essential chemicals does not allow the completion of testing within
the time frame, a partial laboratory examination report shall be provisionally issued stating
therein the quantities of dangerous drugs still to be examined by the forensic laboratory:
Provided, however, That a final certification shall be issued immediately upon completion of the
said examination and certification;