SECOND DIVISION

[ G.R. No. 229826, July 30, 2018 ]

PEOPLE OF THE PHILIPPINES PLAINTIFF-APPELLEE, V. PATRICIA

CABRELLOS Y DELA CRUZ, ACCUSED-APPELLANT.

DECISION

PERLAS-BERNABE, J.:

Before the Court is an ordinary appeal[1] filed by accused-appellant Patricia Cabrellos y

Dela Cruz (Cabrellos) assailing the Decision[2] dated September 13, 2016 of the Court
of Appeals (CA) in CA-G.R. CR H.C. No. 02020, which affirmed the Joint Judgment[3]
dated February 25, 2015 of the Regional Trial Court of Bais City, Negros Oriental,
Branch 45 (RTC) in Crim. Case Nos. 05-0163-A and 05-0162-A finding Cabrellos guilty
beyond reasonable doubt of the crimes of Illegal Sale of Dangerous Drugs and Illegal
Possession of Dangerous Drugs, defined and penalized under Sections 5 and 11,
respectively, of Article II of Republic Act No. (RA) 9165,[4] otherwise known as the
"Comprehensive Dangerous Drugs Act of 2002."

The Facts

This case stemmed from two (2) Informations[5] filed before the RTC charging
Cabrellos with violations of Sections 5 and 11, Article II of RA 9165, the accusatory portions
of which read:

Crim. Case No. 05-0163-A

That on September 22, 2005 at about 12:45 in the afternoon at Barangay

Iniban, Ayungon, Negros Oriental, Philippines, and within the jurisdiction of
this Honorable Court, the above named accused, without lawful authority,
did then and there willfully, unlawfully and feloniously SELL and DELIVER to
a poseur buyer Methamphetamine Hydrochloride locally known as Shabu,
weighing 0.08 gram, a dangerous drug.

Contrary to law.[6]

Crim. Case No. 05-0162-A

That on September 22, 2005 at 12:45 in the afternoon, more or less, at

Barangay Iniban, Ayungon, Negros Oriental, Philippines, and within the
jurisdiction of this Honorable Court, the above named accused, did then and
there willfully, unlawfully and feloniously have in her possession, control and
custody, 0.64 gram of Methamphetamine Hydrochloride, locally known as
Shabu, a dangerous drug, without lawful authority.
 Contrary to law.[7]

The prosecution alleged that on September 22, 2005 and acting upon a tip from a
confidential informant regarding Cabrellos's alleged illegal drug activities in Ayungon,
Negros Oriental, the Philippine Drug Enforcement Agency and the Provincial Anti-Illegal
Drugs Special Operations Group organized a buy-bust team, with PO3 Allen June
Germodo (PO3 Germodo) acting as poseur-buyer and PO2 Glenn Corsame (PO2
Corsame) as immediate back-up. The buy-bust team, together with the informant, then
went to Cabrellos's house. Thereat, the informant introduced PO3 Germodo as a shabu
buyer. After PO3 Germodo gave Cabrellos the two (2) marked P500.00 bills, Cabrellos
took out two (2) plastic sachets containing suspected shabu from her bag and handed it
over to PO3 Germodo. Upon receipt of the sachets, PO3 Germodo placed Cabrellos
under arrest, with the rest of the buy-bust team rushing to the scene. The police
officers searched Cabrellos's bag and discovered seventeen (17) more sachets
containing suspected shabu therein. The police officers then brought Cabrellos and the
seized items to the Ayungon Police Station for the conduct of photography and
inventory of the seized items. However, since only a barangay kagawad was present at
the Ayungon Police Station at that time, the police officers brought Cabrellos and the seized
items to the Dumaguete Police Station wherein they conducted a second inventory,
this time in the presence of a representative each from the DOJ and the media.
Thereafter, the seized sachets were brought to the crime laboratory where the contents
thereof were confirmed to be methamphetamine hydrochloride or shabu.[8]

In her defense, Cabrellos testified that she was inside her house tending to her child
when suddenly, two (2) unidentified persons came into their house looking for her
husband. When she told them that her husband was not around, she was brought to
the police station for selling shabu, and there, made to sign a document already signed
by a barangay official. She was detained for three (3) months at the Dumaguete Police
Station before she was transferred to Bais City Jail.[9]

The RTC Ruling

In a Joint Judgment[10] dated February 25, 2015, the RTC convicted Cabrellos of the
crimes charged, and accordingly, sentenced her as follows: (a) in Criminal Case No. 05-
0163-A, to suffer the penalty of life imprisonment, and to pay a fine of P500,000.00;
and (b) in Criminal Case No. 05-0162-A, to suffer the penalty of imprisonment for an
indeterminate period of twelve (12) years and one (1) day to fourteen (14) years, and
to pay a fine of P300,000.00.[11]

The RTC found that the prosecution was able to establish Cabrellos's guilt beyond
reasonable doubt, considering that: (a) she was caught in flagrante delicto selling
shabu to the poseur-buyer; and (b) in the search incidental to her arrest, she was
discovered to be in possession of seventeen (17) more sachets of shabu. On the other
hand, it did not give credence to Cabrellos' bare denial as it stood weak in the face of
the detailed and candid testimonies of the prosecution's witnesses.[12]

Aggrieved, Cabrellos appealed[13] to the CA.

The CA Ruling
In a Decision [14] dated September 13, 2016, the CA affirmed the RTC ruling.[15] It
held that the testimonies of the police officers had established the fact that Cabrellos
was caught in the act of selling illegal drugs, and that in the course of her arrest, she
was found in possession of more sachets containing illegal drugs. In this regard, the CA
ruled that the police officers substantially complied with the chain of custody
requirement as the identity and evidentiary value of the seized items were duly
established and preserved. [16]

Hence, this appeal.

The Issue Before the Court

The issue for the Court's resolution is whether or not Cabrellos is guilty beyond
reasonable doubt of violating Sections 5 and 11, Article II of RA 9165.

The Court's Ruling

The appeal is meritorious.

At the outset, it must be stressed that an appeal in criminal cases opens the entire case
for review and, thus, it is the duty of the reviewing tribunal to correct, cite, and
appreciate errors in the appealed judgment whether they are assigned or unassigned.
[17] "The appeal confers the appellate court full jurisdiction over the case and renders

such court competent to examine records, revise the judgment appealed from, increase
the penalty, and cite the proper provision of the penal law."[18]

In this case, Cabrellos was charged with Illegal Sale and Illegal Possession of
Dangerous Drugs, respectively defined and penalized under Sections 5 and 11, Article
II of RA 9165. In order to properly secure the conviction of an accused charged with
Illegal Sale of Dangerous Drugs, the prosecution must prove: (a) the identity of the
buyer and the seller, the object, and the consideration; and (b) the delivery of the thing
sold and the payment.[19] Meanwhile, in instances wherein an accused is charged with
Illegal Possession of Dangerous Drugs, the prosecution must establish the following
elements to warrant his conviction: (a) the accused was in possession of an item or
object identified as a prohibited drug; (b) such possession was not authorized by law;
and (c) the accused freely and consciously possessed the said drug.[20] In both
instances, case law instructs that it is essential that the identity of the prohibited drug
be established with moral certainty, considering that the dangerous drug itself forms an
integral part of the corpus delicti of the crime. Thus, in order to obviate any
unnecessary doubt on the identity of the dangerous drugs, the prosecution has to show
an unbroken chain of custody over the same and account for each link in the chain of
custody from the moment the drugs are seized up to their presentation in court as
evidence of the crime.[21]

Section 21, Article II of RA 9165 outlines the procedure which the police officers must
follow when handling the seized drugs in order to preserve their integrity and
evidentiary value.[22] Under the said section, prior to its amendment by RA 10640,[23]
the apprehending team shall, among others, immediately after seizure and
confiscation conduct a physical inventory and photograph the seized items in
the presence of the accused or the person from whom the items were seized,
or his 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 of the same, and the
seized drugs must be turned over to the PNP Crime Laboratory within twenty-four (24)
hours from confiscation for examination.[24] In the case of People v. Mendoza,[25] the
Court stressed that "[w]ithout the insulating presence of the representative
from the media or the [DOJ], or any elected public official during the seizure
and marking of the [seized drugs], the evils of switching, 'planting' or
contamination of the evidence that had tainted the buy-busts conducted under the
regime of [RA] 6425 (Dangerous Drugs Act of 1972) again reared their ugly heads as
to negate the integrity and credibility of the seizure and confiscation of the
[said drugs] that were evidence herein of the corpus delicti, and thus
adversely affected the trustworthiness of the incrimination of the accused.
Indeed, the x x x presence of such witnesses would have preserved an unbroken chain
of custody."[26]

The Court, however, clarified that under varied field conditions, strict compliance with
the requirements of Section 21, Article II of RA 9165 may not always be possible.[27]
In fact, the Implementing Rules and Regulations (IRR) of RA 9165 – which is now
crystallized into statutory law with the passage of RA 10640[28] – provide that the said
inventory and photography may be conducted at the nearest police station or office of
the apprehending team in instances of warrantless seizure, and that non-compliance
with the requirements of Section 21, Article II of RA 9165 – under justifiable
grounds – will not render void and invalid the seizure and custody over the
seized items so long as the integrity and evidentiary value of the seized items
are properly preserved by the apprehending officer or team.[29] In other words,
the failure of the apprehending team to strictly comply with the procedure laid out in
Section 21, Article II of RA 9165 and its IRR does not ipso facto render the seizure and
custody over the items as void and invalid, provided that the prosecution satisfactorily
proves that: (a) there is justifiable ground for non-compliance; and (b) the integrity
and evidentiary value of the seized items are properly preserved.[30] In People v.
Almorfe,[31] the Court explained that for the above-saving clause to apply, the
prosecution must explain the reasons behind the procedural lapses, and that
the integrity and evidentiary value of the seized evidence had nonetheless
been preserved.[32] Also, in People v. De Guzman,[33] it was emphasized that the
justifiable ground for non-compliance must be proven as a fact, because the
Court cannot presume what these grounds are or that they even exist.[34]

After a judicious study of the case, the Court finds that the police officers committed
unjustified deviations from the prescribed chain of custody rule, thereby putting into
question the integrity and evidentiary value of the dangerous drugs allegedly seized
from Cabrellos.

Initially, it would appear that the arresting officers complied with the witness
requirement during inventory, as seen in the Receipt of Property Seized[35] dated
September 22, 2005 which contains the signatures of the required witnesses, i.e., a
public elected official, a representative from the DOJ, and a representative from the
media. However, no less than PO3Germodo admitted in open court that they actually
conducted two (2) separate inventories in different places and in the presence of
different witnesses. Pertinent portions of his direct testimony read:

[Pros. Yuseff Cesar Ybañez, Jr.]: After you were able to make the said
marking, were you able to take pictures with the accused inside her house?
[PO3 Germodo]: No, sir. We only took pictures during the inventory at
the police station of Ayungon.

xxxx

Q: Mr. Witness, after you have prepared, and signed of the properties seized
and gone with the markings of the property seized, what did you do then, if
any?
A: We conducted the inventory of the confiscated items together with the
witness, the [B]rgy. Kagawad Raul Fausto and he signed the
inventory.

Q: And after Raul Fausto signed the inventory, what happened then, if any?
A: Since there was no report from the media [and] the Department of
Justice, we proceeded to Dumaguete City.

Q: Where did you proceed in Dumaguete City?

A: In our office.

Q: Where is your office located?

A: It is located at PNP compound, Locsin St., Dumaguete City.

Q: After you arrived there, what happened then?

A: I called the media representative and the DOJ.

Q: And did they arrive, the media representative and the DOJ
representative?
A: Yes.

Q: After they arrived, what transpired at your office?

A: We conduct (sic) again an inventory.

Q: After conducting the second inventory, what did you do then, if any?
A: After the inventory we made a request for PNP crime laboratory.[36]
(Emphases and underscoring supplied)

From the foregoing testimony, it is clear that the arresting officers conducted two (2)
separate inventories, both of which are glaringly non compliant with the required
witnesses rule: (a) in the inventory conducted at the Ayungon Police Station, only a
public elected official – Brgy. Kagawad Raul Fausto – was present thereat; and (b) on
the other hand, the inventory conducted at the Dumaguete Police Station was
witnessed only by representatives from the DOJ and the media. To make matters
worse, the arresting officers attempted to cover up such fact by preparing a single
inventory sheet signed by the witnesses at different times and places. Verily, the chain
of custody rule laid down by RA 9165 and its IRR contemplates a situation where the
inventory conducted on the seized items is witnessed by the required personalities at
the same time. The wordings of the law leave no room for any piecemeal compliance
with the required witnesses rule as what happened in this case. Otherwise, the avowed
purpose of the required witnesses rule – which is to prevent the evils of switching, planting,
or contamination of the corpus delicti resulting in the tainting of its integrity and
evidentiary value – will be greatly diminished or even completely negated.

At this point, it is well to note that the non-compliance with the required witnesses rule
does not per se render the confiscated items inadmissible.[37] However, a justifiable
reason for such failure or a showing of any genuine and sufficient effort to secure
the required witnesses under Section 21, Article II of RA 9165 must be adduced.[38]
In People v. Umipang,[39] the Court held that the prosecution must show that earnest
efforts were employed in contacting the representatives enumerated under the law for
"[a] sheer statement that representatives were unavailable – without so much as an
explanation on whether serious attempts were employed to look for other
representatives, given the circumstances – is to be regarded as a flimsy excuse."[40] Verily,
mere statements of unavailability, absent actual serious attempts to contact the required
witnesses, are unacceptable as justified grounds for non-compliance.[41] These
considerations arise from the fact that police officers are ordinarily given sufficient
time – beginning from the moment they have received the information about the activities
of the accused until the time of his arrest – to prepare for a buy-bust operation and
consequently, make the necessary arrangements beforehand knowing fully well that
they would have to strictly comply with the set procedure prescribed in Section 21, Article
II of RA 9165. As such, police officers are compelled not only to state the reasons
for their non-compliance, but must in fact, also convince the Court that they
exerted earnest efforts to comply with the mandated procedure, and that under
the given circumstance, their actions were reasonable.[42]

To reiterate, PO3 Germodo admitted that they had to re-do the inventory at the Dumaguete
Police Station for it to be witnessed by the DOJ and media representatives. However, the
re-conduct of the inventory at the Dumaguete Police Station was no longer witnessed
by the public elected official who was left behind at the Ayungon Police Station.
Unfortunately, no excuse was offered for such mishap; and worse, they even tried to
trivialize the matter by making the required witnesses sign a single inventory sheet
despite the fact that they witnessed the conduct of two (2) separate inventories. Thus, for
failure of the prosecution to provide justifiable grounds or show that special
circumstances exist which would excuse their transgression, the Court is constrained
to conclude that the integrity and evidentiary value of the items purportedly
seized from Cabrellos have been compromised. It is settled that in a prosecution for the
Illegal Sale and Illegal Possession of Dangerous Drugs under RA
9165, the State carries the heavy burden of proving not only the elements of the
offense, but also to prove the integrity of the corpus delicti, failing in which, renders
the evidence for the State insufficient to prove the guilt of the accused beyond
reasonable doubt.[43] It is well-settled that the procedure in Section 21, Article II of RA
9165 is a matter of substantive law, and cannot be brushed aside as a simple
procedural technicality; or worse, ignored as an impediment to the conviction of illegal
drug suspects.[44] As such, since the prosecution failed to provide justifiable grounds
for non-compliance with the aforesaid provision, Cabrellos's acquittal is perforce in
order.

As a final note, the Court finds it fitting to echo its recurring pronouncement in recent
jurisprudence on the subject matter:

The Court strongly supports the campaign of the government against drug
addiction and commends the efforts of our law enforcement officers against
those who would inflict this malediction upon our people, especially the
susceptible youth. But as demanding as this campaign may be, it cannot be
more so than the compulsions of the Bill of Rights for the protection of
liberty of every individual in the realm, including the basest of criminals. The
Constitution covers with the mantle of its protection the innocent and the
guilty alike against any manner of high-handedness from the authorities,
however praiseworthy their intentions.

Those who are supposed to enforce the law are not justified in disregarding
the right of the individual in the name of order. Order is too high a price for
the loss of liberty. x x x.[45]

"In this light, prosecutors are strongly reminded that they have the positive duty to
prove compliance with the procedure set forth in Section 21 [, Article II] of RA 9165, as
amended. As such, they must have the initiative to not only acknowledge but
also justify any perceived deviations from the said procedure during the
proceedings before the trial court. Since compliance with the procedure is
determinative of the integrity and evidentiary value of the corpus delicti and ultimately,
the fate of the liberty of the accused, the fact that any issue regarding the same was
not raised, or even threshed out in the court/s below, would not preclude the appellate
court, including this Court, from fully examining the records of the case if only to
ascertain whether the procedure had been completely complied with, and if not,
whether justifiable reasons exist to excuse any deviation. If no such reasons exist, then
it is the appellate court's bounden duty to acquit the accused, and perforce, overturn a
conviction."[46]

WHEREFORE, the appeal is GRANTED. The Decision dated September 13, 2016 of the
Court of Appeals in CA-G.R. CR H.C. No. 02020 is hereby REVERSED and SET ASIDE.
Accordingly, accused-appellant Patricia Cabrellos y Dela Cruz is ACQUITTED of the
crimes charged. The Director of the Bureau of Corrections is ordered to cause her
immediate release, unless she is being lawfully held in custody for any other reason.

SO ORDERED.

Carpio (Chairperson),[*] Caguioa, and Reyes, Jr., JJ., concur.

Peralta, J., please see separate concurring opinion.

[*] Senior Associate Justice (Per Section 12, Republic Act No. 296, The Judiciary Act of

1948, as amended)
[1] See Notice of Appeal dated September 30, 2016; rollo, pp. 16-18.

[2] Id. at 4-15. Penned by Associate Justice Pablito A. Perez with Associate Justices

Pamela Ann Abella Maxino and Gabriel T. Robeniol concurring.

[3] CA rollo, pp. 61-74. Penned by Judge Candelario V. Gonzalez.

[4] Entitled "AN ACT INSTITUTING THE COMPREHENSIVE DANGEROUS DRUGS ACT OF

2002, REPEALING REPUBLIC ACT No. 6425, OTHERWISE KNOWN AS THE DANGEROUS
DRUGS ACT OF 1972, AS AMENDED, PROVIDING FUNDS THEREFOR, AND FOR OTHER
PURPOSES," approved on June 7, 2002.

[5] Both dated October 24, 2005. Records (Crim. Case No. 05 -0163-A), pp. 2-3; and

records (Crim. Case No. 05-0162-A), pp. 2-3.

[6] Records (Crim. Case No. 05-0163-A), p. 2.

[7] Records (Crim. Case No. 05-0162-A), p. 2.

[8] See rollo, pp. 6-7. See also CA rollo, pp. 62-68.

[9] See rollo, p. 8. See also CA rollo, pp. 68-69.

[10] CA rollo, pp.61-74.

[11] Id. at 73a-74.

[12] See id. at 69-73a.

[13] See Notice of Appeal dated March 2, 2015; records (Crim. Case No. 05-0162-A), p.

153a.

[14] Rollo, pp. 4-15.

[15] Id. at 14.

[16] See id. at 9-13.

[17] See People v. Dahil, 750 Phil. 212, 225 (2015).

[18] People v. Comboy, G.R. No. 218399, March 2, 2016, 785 SCRA 512, 521.

[19] People v. Sumili, 753 Phil. 342, 348 (2015).

[20] People v. Bio, 753 Phil. 730, 736 (2015).

[21] See People v. Manansala, G.R. No. 229092, February 21, 2018, citing People v.

Viterbo, 739 Phil. 593, 601 (2014).

[22] People v. Sumili, supra note 19, at 349-350.

[23] Entitled "AN ACT TO FURTHER STRENGTHEN THE ANTI-DRUG CAMPAIGN OF THE

GOVERNMENT, AMENDING FOR THE PURPOSE SECTION 21 OF REPUBLIC ACT NO.

9165, OTHERWISE KNOWN AS THE 'COMPREHENSIVE DANGEROUS DRUGS ACT OF
2002,"' approved on July 15, 2014.

[24] See Section 21 (1) and (2), Article II of RA 9165.

[25] 736 Phil. 749 (2014).

[26] Id. at 764; emphases and underscoring supplied.

[27] See People v. Sanchez, 590 Phil. 214, 234 (2008).

[28] Section 1 of RA 10640 states:

SECTION 1. Section 21 of Republic Act No. 9165, otherwise known as the

"Comprehensive Dangerous Drugs Act of 2002", is hereby amended to read
as follows:

"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:

"(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 persons 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.

x x x x"

[29] See Section 21 (a), Article II of the IRR of RA 9165. See also People v. Ceralde,

G.R. No. 228894, August 7, 2017.

[30] See People v. Goco, G.R. No. 219584, October 17, 2016, 806 SCRA 240, 252.

[31] 631 Phil. 51 (2010).

[32] Id. at 60.

[33] 630 Phil. 637 (2010).

[34] Id. at 649.

[35] Records (Crim. Case No. 05-0163-A), p. 9.

[36] TSN, November 17, 2006, pp. 22 and 25-27.

[37] People v. Umipang, 686 Phil. 1024, 1052 (2012).

[38] See id. at 1052-1053.

[39] Id.

[40] Id. at 1053.

[41] See id.

[42] See People v. Crispo, G.R. No. 230065, March 14, 2018.

[43] See People v. Gamboa, G.R. No. 233702, June 20, 2018, citing People v. Umipang,

id. at 1039-1040.

[44] See People v. Macapundag, G.R. No. 225965, March 13, 2017, 820 SCRA 204, 215,

citing People v. Umipang, id. at 1038.

[45] See People v. Mamangon, G.R. No. 229102, January 29, 2018; and People v. Go,

457 Phil. 885, 925 (2003), citing People v. Aminnudin, 246 Phil. 424, 434-435 (1988).

[46] See People v. Miranda, G.R. No. 229671, January 31, 2018.

SEPARATE CONCURRING OPINION

PERALTA, J.:

I concur with the ponencia in acquitting accused-appellant Patricia Cabrellos y Dela

Cruz of the charges of illegal sale and illegal possession of dangerous drugs, or
violation of Sections 5 and 11, Article II of Republic Act No. 9165 (R.A. No. 9165),[1]
respectively. I agree that the prosecution failed to provide justifiable grounds for the
arresting officers' non-observance of the three-witness rule under Section 21[2] of R.A.
No. 9165, i.e., why they had to re-do the inventory of the seized items at the police
station for it to be witnessed by the representatives from the Department of Justice and
the media sans the presence of an elected public official, who was the only one present
during the initial inventory of the said items. At any rate, I would like to emphasize on
important matters relative to Section 21 of R.A. No. 9165, as amended.

To properly guide law enforcement agents as to the proper handling of confiscated

drugs, Section 21 (a), Article II of the Implementing Rules and Regulations (IRR) of
R.A. No. 9165 filled in the details as to where the inventory and photographing of
seized items had to be done, and added a saving clause in case the procedure is not
followed:[3]

(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.

It bears emphasis that R.A. No. 10640,[4] which amended Section 21 of R.A. No. 9165,
now only requires two (2) witnesses to be present during the conduct of the physical
inventory and taking of photograph of the seized items, namely: (a) an elected public
official; and (b) either a representative from the National Prosecution Service or the
media.

In her Sponsorship Speech on Senate Bill No. 2273, which eventually became R.A. No.
10640, Senator Grace Poe conceded that "while Section 21 was enshrined in the
Comprehensive Dangerous Drugs Act to safeguard the integrity of the evidence
acquired and prevent planting of evidence, the application of said Section resulted in
the ineffectiveness of the government's campaign to stop the increasing drug addiction
and also, in the conflicting decisions of the courts."[5] Senator Poe stressed the
necessity for the amendment of Section 21 based on the public hearing that the Senate
Committee on Public Order and Dangerous Drugs had conducted, which revealed that
"compliance with the rule on witnesses during the physical inventory is difficult. For
one, media representatives are not always available in all corners of the Philippines,
especially in the remote areas. For another there were instances where elected
barangay officials themselves were involved in the punishable acts apprehended and
thus, it is difficult to get the most grassroot-elected public official to be a witness as
required by law."[6]

In his Co-sponsorship speech, Senator Vicente C. Sotto III said that in view of a
substantial number of acquittals in drug-related cases due to the varying
interpretations of prosecutors and judges on Section 21 of R.A. No. 9165, there is a
need for "certain adjustments so that we can plug the loopholes in our existing law"
and ensure [its] standard implementation."[7] Senator Sotto explained why the said
provision should be amended:

Numerous drug trafficking activities can be traced to operations of highly

organized and powerful local and international syndicates. The presence of
such syndicates that have the resources and the capability to mount a
counter-assault to apprehending law enforcers makes the requirement of
Section 21(a) impracticable for law enforcers to comply with. It makes the place
of seizure extremely unsafe for the proper inventory and photograph of the
seized illegal drugs.

xxxx

Section 21(a) of RA 9165 need to be amended to address the foregoing

situation. We did not realize this in 2002 where the safety of the law
enforcers and other persons required to be present in the inventory and
photography of seized illegal drugs and the preservation of the very
existence of seized illegal drugs itself are threatened by an immediate
retaliatory action of drug syndicates at the place of seizure. The place where
the seized drugs may be inventoried and photographed has to include a
location where the seized drugs as well as the persons who are required to
be present during the inventory and photograph are safe and secure from
extreme danger.

It is proposed that the physical inventory and taking of photographs of

seized illegal drugs be allowed to be conducted either in the place of seizure
of illegal drugs or at the nearest police station or office of the apprehending
law enforcers. The proposal will provide effective measures to ensure the
integrity of seized illegal drugs since a safe location makes it more probable
for an inventory and photograph of seized illegal drugs to be properly
conducted, thereby reducing the incidents of dismissal of drug cases due to
technicalities.

Non-observance of the prescribed procedures should not automatically mean

that the seizure or confiscation is invalid or illegal, as long as the law
enforcement officers could justify the same and could prove that the
integrity and the evidentiary value of the seized items are not tainted. This
is the effect of the inclusion in the proposal to amend the phrase "justifiable
grounds." There are instances where there are no media people or
 representatives from the DOJ available and the absence of these witnesses
should not automatically invalidate the drug operation conducted. Even the
presence of a public local elected official also is sometimes impossible
especially if the elected official is afraid or scared.[8]

However, under the original provision of Section 21 and its IRR, which is applicable at
the time the appellant committed the crime charged, the apprehending team was
required to immediately conduct a physical inventory and photograph the drugs after
their seizure and confiscation in the presence of no less than three (3) witnesses,
namely: (a) a representative from the media, and (b) the DOJ, and; (c) any elected
public official who shall be required to sign copies of the inventory and be given copy
thereof. The presence of the three witnesses was intended as a guarantee against
planting of evidence and frame up, as they were "necessary to insulate the
apprehension and incrimination proceedings from any taint of illegitimacy or
irregularity."[9]

The prosecution bears the burden of proving a valid cause for non compliance with the
procedure laid down in Section 21 of R.A. No. 9165, as amended. It has the positive
duty to demonstrate observance thereto in such a way that during the trial
proceedings, it must initiate in acknowledging and justifying any perceived deviations
from the requirements of law.[10] Its failure to follow the mandated procedure must be
adequately explained, and must be proven as a fact in accordance with the rules on
evidence. It should take note that the rules require that the apprehending officers do
not simply mention a justifiable ground, but also clearly state this ground in their sworn
affidavit, coupled with a statement on the steps they took to preserve the integrity of
the seized items.[11] Strict adherence to Section 21 is required where the quantity of
illegal drugs seized is minuscule, since it is highly susceptible to planting, tampering or
alteration of evidence.[12]

In this case, the prosecution never alleged and proved that the presence of all the
required witnesses was not obtained for any of the following reasons, such as: (1)
their attendance was impossible because the place of arrest was a remote
area; (2) their safety during the inventory and photograph of the seized drugs
were threatened by an immediate retaliatory action of the accused or any
person/s acting for and in his/her behalf; (3) the elected official themselves
were involved in the punishable acts sought to be apprehended; (4) earnest
efforts to secure the presence of a DOJ or media representative and an elected
public official within the period required under Article 125[13] of the Revised Penal
Code prove futile through no fault of the arresting officers, who face the threat
of being charged with arbitrary detention; or (5) time constraints and urgency of
the anti-drug operations, which often rely on tips of confidential assets,
prevented the law enforcers from obtaining the presence of the required
witnesses even before the offenders could escape.

Invocation of the disputable presumptions that the police officers regularly performed
their official duty and, that the integrity of the evidence is presumed to be preserved,
will not suffice to uphold appellant's conviction. Judicial reliance on the presumption of
regularity in the performance of official duty despite the lapses in the procedures
undertaken by the agents of the law is fundamentally flawed because the lapses themselves
are affirmative proofs of irregularity.[14] The presumption may only arise when there
is a showing that the apprehending officer/team followed the requirements of Section 21
or when the saving clause found in the IRR is successfully triggered. In this case, the
presumption of regularity had been contradicted and overcome by evidence of non-
compliance with the law.[15]

At this point, it is not amiss to express my position regarding the issue of which
between the Congress and the Judiciary has jurisdiction to determine sufficiency of
compliance with the rule on chain of custody, which essentially boils down to the
application of procedural rules on admissibility of evidence. In this regard, I agree with
the view of Hon. Associate Justice Teresita J. Leonardo-De Castro in People v. Teng
Moner y Adam[16] that "if the evidence of illegal drugs was not handled precisely in the
manner prescribed by the chain of custody rule, the consequence relates not to
inadmissibility that would automatically destroy the prosecution's case but rather to the
weight of evidence presented for each particular case." As aptly pointed out by Justice
Leonardo-De Castro, the Court's power to promulgate judicial rules, including rules of
evidence, is no longer shared by the Court with Congress.

I subscribe to the view of Justice Leonardo-De Castro that the chain of custody rule is a
matter of evidence and a rule of procedure, and that the Court has the last say
regarding the appreciation of evidence. Evidentiary matters are indeed well within the
powers of courts to appreciate and rule upon, and so, when the courts find appropriate,
substantial compliance with the chain of custody rule as long as the integrity and
evidentiary value of the seized items have been preserved may warrant the conviction
of the accused.

I further submit that the requirements of marking the seized items, conduct of
inventory and taking photograph in the presence of a representative from the
media or the DOJ and a local elective official, are police investigation
procedures which call for administrative sanctions in case of non-compliance.
Violation of such procedure may even merit penalty under R.A. No. 9165, to
wit:

Section 29. Criminal Liability for Planting of Evidence. – Any person who is
found guilty of "planting" any dangerous drug and/or controlled precursor
and essential chemical, regardless of quantity and purity, shall suffer the
penalty of death.

Section 32. Liability to a Person Violating Any Regulation Issued by the

Board. – The penalty of imprisonment ranging from six (6) months and one
(1) day to four (4) years and a fine ranging from Ten thousand pesos
(P10,000.00) to Fifty thousand pesos (P50,000.00) shall be imposed upon
any person found violating any regulation duly issued by the Board pursuant
to this Act, in addition to the administrative sanctions imposed by the Board.

However, non-observance of such police administrative procedures should not affect the
validity of the seizure of the evidence, because the issue of chain of custody is
ultimately anchored on the admissibility of evidence, which is exclusively within the
prerogative of the courts to decide in accordance with the rules on evidence.

[1] "AN ACT INSTITUTING THE COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002,

REPEALING REPUBLIC ACT NO. 6425, OTHERWISE KNOWN AS THE DANGEROUS

DRUGS ACT OF 1972, AS AMENDED, PROVIDING FUNDS THEREFOR, AND FOR OTHER
PURPOSES"

[2] 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:

(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;

[3] People v. Ramirez, G.R. No. 225690, January 17, 2018.

[4] "AN ACT TO FURTHER STRENGTHEN THE ANTI-DRUG CAMPAIGN OF THE GOVERNMENT,

AMENDING FOR THE PURPOSE SECTION 21 OF REPUBLIC ACT NO.

9165, OTHERWISE KNOWN AS THE "COMPREHENSIVE DANGEROUS DRUGS ACT OF
2002."

[5] Senate Journal, Session No. 80, 16th Congress, 1st Regular Session, June 4, 2014,

p. 348.

[6] Id.

[7] Id.

[8] Id. at 349-350.

[9] People v. Sagana, G.R. No. 208471, August 2, 2017,

[10] People v. Miranda, G.R. No. 229671, January 31, 2018; People v. Paz, G.R. No.

229512, January 31, 2018; and People v. Mamangon, G.R. No. 229102, January 29,
2018.

[11] People v. Saragena, G.R. No. 210677, August 23, 2017.

[12] Id.
[13] Art. 125. Delay in the delivery of detained persons to the proper judicial

authorities. — The penalties provided in the next preceding article shall be imposed
upon the public officer or employee who shall detain any person for some legal ground
and shall fail to deliver such person to the proper judicial authorities within the period
of; twelve (12) hours, for crimes or offenses punishable by light penalties, or their
equivalent; eighteen (18) hours, for crimes or offenses punishable by correctional
penalties, or their equivalent and thirty-six (36) hours, for crimes, or offenses
punishable by afflictive or capital penalties, or their equivalent.

[14] People v. Ramirez, supra note 3.

[15] People v. Gajo, G.R. No. 217026, January 22, 2018.

[16] G.R. No. 202206, March 5, 2018.

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