WHAT IS CHAIN OF CUSTODY?

People vs. Saiben Langcua (GR no. 190343, Feb. 6, 2013)

"Chain of Custody" means the duly recorded authorized movements

and custody of seized drugs or controlled chemicals or plant sources of dangerous drugs
or laboratory equipment of each stage, from the time of seizure/confiscation to receipt in
the forensic laboratory to safekeeping to presentation in court for destruction. Such
record of movements and custody of seized item shall include the identity and signature
of the person who held temporary custody of the seized item, the date and time when
such transfer of custody were made in the course of safekeeping and use in court as
evidence, and the final disposition.[46]
 

WHAT THE PROSECUTION MUST PROVE/ESTABLISH CHAIN OF

CUSTODY (People vs. Saiben Langcua (GR no. 190343, Feb. 6, 2013)

In the case of People v. Kamad,[47]   (G.R. No. 174198, 19 January 2010, 610

SCRA 295, 307-308; See also People v.           Arriola, G.R. No. )              187736, 8
February 2012, 665 SCRA 581, 598.the Court had the opportunity to enumerate the
different links that the prosecution must prove in order to establish
the chain of custody in a buy-bust operation, namely:
 
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 by the
forensic chemist to the court.[48]

WHY CHAIN OF CUSTODY SHOULD BE ESTABLISHED

People vs. Gomer Climaco (GR no. 199403, June 13, 2012)

    In both cases of illegal sale and illegal possession of dangerous drugs,
the chain of custody over the dangerous drug must be shown to establish the corpus
delicti.  In People v. Alcuizar,[20]     People v. Alcuizar, G.R. No. 189980, 6 April 2011, 647 SCRA
431, 445.  the Court held:
 
            The dangerous drug itself, the shabu in this case,
constitutes the very corpus delicti of the offense and in sustaining
a conviction under Republic Act No. 9165, the identity and
integrity of the corpus delicti must definitely be shown to have
been preserved. This requirement necessarily arises from the
illegal drug’s unique characteristic that renders it indistinct, not
readily identifiable, and easily open to tampering, alteration or
substitution either by accident or otherwise. Thus, to remove any
doubt or uncertainty on the identity and integrity of the seized
 2

drug, evidence must definitely show that the illegal drug presented
in court is the same illegal drug actually recovered from the
accused-appellant; otherwise, the prosecution for possession
under Republic Act No. 9165 fails. 

People vs. Gomer Climaco (GR no. 199403, June 13, 2012)

     In Malillin v. People,[22]   G.R. No. 172953, 30 April 2008, 553 SCRA 619, 631-634 the Court
explained the importance of the chain of custody:
 
            Prosecutions for illegal possession of prohibited drugs
necessitates that the elemental act of possession of a prohibited
substance be established with moral certainty, together with the
fact that the same is not authorized by law.  The dangerous drug
itself constitutes the very corpus delicti of the offense and the fact
of its existence is vital to a judgment of conviction.  Essential
therefore in these cases is that the identity of the prohibited drug
be established beyond doubt.  Be that as it may, the mere fact of
unauthorized possession will not suffice to create in a reasonable
mind the moral certainty required to sustain a finding of
guilt.  More than just the fact of possession, the fact that the
substance illegally possessed in the first place is the same
substance offered in court as exhibit must also be established with
the same unwavering exactitude as that requisite to make a finding
of guilt.  The chain of custody requirement performs this function
in that it ensures that unnecessary doubts concerning the identity
of the evidence are removed.
 
            As a method of authenticating evidence,
the chain of custody rule requires that the admission of an exhibit
be preceded by evidence sufficient to support a finding that the
matter in question is what the proponent claims it to be.  It would
include testimony about every link in the chain, from the
moment the item was picked up to the time it is offered in
evidence, in such a way that every person who touched the exhibit
would describe how and from whom it was received, where it was
and what happened to it while in the witness’ possession, the
condition in which it was received and the condition in which it
was delivered to the next link in the chain.  These witnesses would
then describe the precautions taken to ensure that there had been
no change in the condition of the item and no opportunity for
someone not in the chain to have possession of the same.
 
            While testimony about a perfect chain is not always the
standard because it is almost always impossible to obtain, an
unbroken chain of custody becomes indispensable and essential
when the item of real evidence is not distinctive and is not readily
identifiable, or when its condition at the time of testing or trial is
 3

critical, or when a witness has failed to observe its

uniqueness.  The same standard likewise obtains in case the
evidence is susceptible to alteration, tampering, contamination and
even substitution and exchange.  In other words, the exhibit’s
level of susceptibility to fungibility, alteration or tampering –
without regard to whether the same is advertent or otherwise not –
dictates the level of strictness in the application of
the chain of custody rule.
 
            Indeed, the likelihood of tampering, loss or mistake with
respect to an exhibit is greatest when the exhibit is small and is
one that has physical characteristics fungible in nature and similar
in form to substances familiar to people in their daily
lives.  Graham v. State positively acknowledged this danger.  In
that case where a substance was later analyzed as heroin – was
handled by two police officers prior to examination who however
did not testify in court on the condition and whereabouts of the
exhibit at the time it was in their possession – was excluded from
the prosecution evidence, the court pointing out that the white
powder seized could have been indeed heroin or it could have
been sugar or baking powder.  It ruled that unless the state can
show by records or testimony, the continuous whereabouts of the
exhibit at least between the time it came into the posession of the
police officers until it was tested in the laboratory to determine its
composition, testimony of the state as to the laboratory’s findings
is inadmissible.
 
            A unique characteristic of narcotic substances is that they
are not readily identifiable as in fact they are subject to scientific
analysis to determine their composition and nature.  The Court
cannot reluctantly close its eyes to the likelihood or at least the
possibility, that at any of the links in the chain of custodyover the
same there could have been tampering, alteration or substitution of
substances from other cases – by accident or otherwise – in which
similar evidence was seized or in which similar evidence was
submitted for laboratory testing.  Hence, in authenticating the
same, a standard more stringent than that applied to cases
involving objects which are readily identifiable must be applied, a
more exacting standard that entails a chain of custody of the item
with sufficient completeness if only to render it improbable that
the original item has either been exchanged with another or been
contaminated or tampered with.

Republic of the Philippines

REGIONAL TRIAL COURT
Fifth Judicial Region
Branch 27
Naga City

PEOPLE OF THE PHILIPPINES,

 4

Complainant,

-versus- CRIM. CASE NOS. 2011-0094

2011-0100

NOEL RADORES y ALBANIA,

Accused.
x------------------x

DEMURRER TO EVIDENCE

Accused, by the undersigned counsel, before this Honorable

Court, hereby respectfully submits this Demurrer to Evidence.

LEGAL/PROCEDURAL BASIS OF THIS

DEMURRER TO EVIDENCE

This Demurrer to Evidence is filed pursuant to the provisions of

Section 23, Rule 119 of the Rules of Criminal Procedure.

GROUND FOR DEMURRER

TO EVIDENCE

THE EVIDENCE FOR THE PROSECUTION IS INSUFFICIENT

TO PROVE THE GUILT OF THE ACCUSED BEYOND
REASONABLE DOUBT.

Article III, Section 14(2) of the Constitution provides that “In all
criminal prosecutions, the accused shall be presumed innocent until
the contrary is proved. x x x .

Accusation is not synonymous with guilt. In this jurisdiction, the

accused is presumed innocent until the contrary is proved. This is a
clear mandate enshrined in our Constitution. It is the responsibility of
the prosecution to establish the guilt of the accused beyond reasonable
doubt; Otherwise, he is entitled to an acquittal. Conviction will depend
not on the weakness of his defense but on the strength of the evidence
for the prosecution.
 5

A person accused of an offense is confronted by the full panoply

of state authority; in a manner of speaking, he goes to bat with all the
bases loaded. It is important therefore, in the interest of justice, to
even up the odds as it were guaranteeing him certain rights during his
trial. Chief among these rights is the constitutional presumption of
innocence. Speaking of this guarantee, the Supreme Court, in the case
of People vs. Malilay, G.R. No. L-27938, April 22, 1975, ratiocinated,
thus:

“The concern shown by this court for the constitutional

mandate as to the presumption of innocence to be fully
adhered to, requiring that there be evidence sufficient to
remove every vestige of reasonable doubt, was evident as
early as in United States vs. Reyes, decided in 1903. Absolute
certainty, as pointed out in the leading case of United States
vs. Lasada, promulgated in 1910, “is not demanded by the
law to convict of any criminal charge but moral certainty is
required, and this certainty is required as to every proposition
of proof requisite to constitute the offense. It is incumbent on
the prosecution then, as so well stressed in People vs.
Dramayo, “to demonstrate that culpability lies. (Defendants
are) not even called upon to offer evidence on their behalf.
Their freedom is forfeit only if the requisite quantum of proof
necessary for the conviction be in existence.”

In the case of People vs. Mirantes, G.R. No. 92706, May 21,
1992, the Supreme Court held that:

“The presumption of regularity in the performance of official

functions cannot by itself affect the constitutional
presumption of innocence enjoyed by the accused,
particularly when the prosecution’s evidence is weak. The
evidence for the prosecution must be strong enough to piece
the shield of this presumptive innocence and to establish the
guilt of the accused beyond reasonable doubt. Where the
evidence of prosecution is insufficient to overcome this
presumption, necessarily the judgment of conviction of the
trial court must be set aside. The onus probandi on the
prosecution is not discharged by casting doubts upon the
innocence of the accused, but by eliminating all reasonable
doubt as to his guilt.”
Guided by the above-cited principle on presumption of innocence
as guaranteed by our Constitution to the accused and as amplified by
the Supreme Court in its rulings in the above-entitled cases, the
accused hereby respectfully submits this Demurrer to Evidence with a
fervent and solemn prayer that this case be ordered dismissed upon
 6

the ground that the prosecution’s evidence falls short of the quantum
of evidence required to overcome the presumption of innocence
guaranteed to the accused.

This Demurrer is thus anchored on the gross insufficiency of the

evidence for the prosecution to warrant a conviction of the herein
accused. On the contrary, the accused deserves an acquittal of the
charge for failure of the prosecution to discharge its duty of
establishing his guilt beyond reasonable doubt.

Culled from the records of this case, in the aspect of chain of

custody, shows the following:

1. PO1 Mark Anthony Cledera was the seizing officer of the items
allegedly recovered from the accused;

2. The alleged recovered items consisting of illegal drugs,

firearms and ammunitions were turned-over to PO2 Vivian
Relloso as Evidence Custodian;

3. PO2 Vivian Relloso turned-over the seized items to PO1 Mark

Anthony Cledera for turn-over to the Court together with the
Return of the Search Warrant;

4. The court personnel who was not identified and who received
the alleged seized items from PO1 Mark Anthony Cledera;

5. The seized items were returned to the custody of PO1 Mark

Anthony Cledera, upon order of the Court that issued the
Search Warrant upon Motion filed by PO1 Mark Anthony
Cledera

6. PI Jun F. Malong received the alleged illegal drugs at the

Provincial Crime Laboratory from PO1 Mark Anthony Cledera;

7. PI Jun F. Malong turned-over the alleged illegal drugs to an

unidentified Evidence Custodian of the Provincial Crime
Laboratory after PI Jun F. Malong was through with his
examination of the alleged items;

8. PI Jun F. Malong received the alleged illegal drugs from the

Evidence Custodian when the former brought the alleged
items (shabu) before this Honorable Court when he testified
on August 15, 2011;
 7

9. PI Jun F. Malong turned-over to Pros. Virgilio Balane the

alleged illegal drugs (shabu) after PI Jun F. Malong had
testified in Court;

10. Pros. Virgilio Balane, as a matter of procedure, has turned-

over the items to the Evidence Custodian of the Office of the
City Prosecutor of Naga City before submitting the formal
offer of evidence in court.

The foregoing enumeration of the persons who comprised the

chain of custody of the alleged illegal drugs shows that there were
seven (7) persons who took initial custody of the subject items before
they were formally offered in court. However, of the seven (7) persons
who comprised the chain of custody, only the following persons were
presented in court and testified, namely:

1. PO1 Mark Anthony Cledera

2. PO2 Vivian Relloso
3. PI Jun F. Malong

The other persons who comprised the chain of custody of the

alleged illegal drugs namely:

1. The Court personnel of RTC, Branch 25, Naga City, who

received the seized items from PO1 Mark Anthony Cledera
when they were returned to the Court after the
implementation of the Search Warrant was not presented;

2. The Evidence Custodian of the Provincial Crime Laboratory

who was not even identified to the court when PI Jun F.
Malong who testified on August 15, 2011 was not presented
in court;

3. Pros. Virgilio Balane who received the items from PI Jun F.

Malong after the latter had testified in court was not
presented in court;

4. The Evidence Custodian of the Office of the City Prosecutor

to whom Pros. Balane turned-over the alleged illegal drugs
for safekeeping before the subject items were formally
offered in court to complete the chain of custody was not
likewise presented in court;

It is thus the respectful submission of the accused that an

unbroken chain of custody of the alleged illegal drugs items that were
 8

seized from the accused was not established and proved by the
prosecution.

When PI Jun F. Malong was presented in court to testify on

August 15, 2011, by Pros. Nacor, he testified in part as follows:

Pros. Nacor to PI Jun F. Malong:

Q – And after that what did you do next?

A – After that Ma’am, in the morning, I handed it over to the
evidence custodian.

Q – By the way when did you finish the conduct of your

laboratory examination?

A – In the evening Ma’am.

Q – At around what time?
A – I finished making my laboratory report at about 11:41 of
March 21, 2011.

Q – And after finishing at around 11:41 in the evening what did

you do with the document as well as the specimen?

A – I kept it to myself, I placed it on my safekeeping in my

custody and then in the morning. After shifting I turned it
over to the evidence custodian.

Q – At around what time did you turn it over to evidence

custodian?

A – First hour in the morning Ma’am at about 8:00 o’clock (TSN,

pages 32 and 33, August 15, 2011)

Very clear therefore is the fact that the Evidence Custodian of

the Provincial Crime Laboratory to whom PI Jun F. Malong had turned-
over the alleged illegal drugs after the latter was through with his
examination of said items was a part of the chain of custody and yet
he was never presented in court.

Likewise, the personnel of the court, RTC, Branch 25, Naga City,
who received the alleged seized items by virtue of the Search Warrant
was a part of the Chain of Custody, but he/she was never presented in
court;
 9

In the same vein, the Evidence Custodian of the Office of the

City Prosecutor of Naga City to whom the alleged seized items were
turned-over by Pros. Balane for safekeeping was not presented in
court. He/she is so much a part of the chain of custody.

The ruling of the Supreme Court in People vs. Gutierez, Supra,

mandates the following pertaining to the chain of custody:

1. There must be a duly recorded movements and custody of the

seized drugs at each stage, from the time of
seize/confiscation to receipt in the forensic laboratory to
safekeeping, to presentation in court and destruction;

2. Such records of the movements and custody of the seized

items shall include the identity and signature of the person
who had its temporary custody, the dates and times when
transfers of custody were made in the course of safekeeping
and use in court and evidence and the final disposition;

3. It would include the testimony about every link in the chain

from the moment the item was picked-up to the time it is
offered in evidence, detailing the precautions taken to ensure
that there had been no change in the condition of the item
and no opportunity for someone not in the chain to have
possession of the same.

The prosecution failed to abide by and observe the clear

mandate of the Supreme Court as regards the chain of custody over
the alleged seized items subject matter of these cases.

The Supreme Court has outlined in an unequivocal terms the

strictness in the compliance of the chain of custody because in the
case of People of the Philippines vs. Ruben N. Nobel, G.R. No. 177220,
April 20, 2009, 586 SCRA 647 it states that:

“A unique characteristics of narcotic substances is that

they are not readily identifiable as in fact they are
subject to scientific analysis to determine their
composition and nature. The court cannot close its eyes
to the likelihood, or at least the possibility that at any of
the links in the chain of custody over the same there
could have been tampering, alteration or substitution of
substances from other cases – by accident or otherwise
 10

– in which similar evidence was seized or in which

similar evidence was submitted for laboratory testing.
Thus, the corpus delicti should be identified with
unwavering exactitude.”

In the same case of People vs. Gutierez, Supra, the Supreme

Court cited the case of Malillin vs. People, G.R. No. 172953, April 30,
2008, 553 SCRA 619,632, where the court explained how it expects
the chain of custody or “movement” of the seized evidence to be
maintained:

“As a method of authenticating evidence, the chain

of custody rule requires that the admission of an exhibit
be preceded by evidence sufficient to support a finding
that the matter in question is what the proponent claims
it to be. It would include testimony about every link in
the chain from the moment the item was picked up to the
time it is offered into evidence, in such a way that every
person who touched the exhibit would describe how and
from whom it was received, where it was and what
happened to it while in the witness’ possession, the
condition in which it was received and the condition in
which it was delivered to the next link in the chain. These
witnesses would then describe the precautions taken to
ensure that there had been no change in the condition of
the item and no opportunity for someone not in the chain
to have possession of the same”.

“While testimony about a perfect chain is not always

the standard because it is almost impossible to obtain an
unbroken chain of custody becomes indispensable and
essential when the item of real evidence is not distinctive
and is not really identifiable, or when its condition at the
time of testing or trial is critical, or when a witness has
failed to observe its uniqueness. The same standard
likewise obtains in case the evidence is susceptible to
alteration, tampering, contamination and even
substitution and exchange. In other words, the exhibit’s
level of susceptibility to fungibility, alteration or
tampering – without regard to whether the same is
advertent or otherwise not – dictates the level of
strictness in the application of the chain of custody rule”.

“The Court make it clear in Malillin that the chain of

custody rule requires that there be testimony about every
link in the chain, from the moment the object seized was
picked up to the time it is offered in evidence, in such a
way that every person who touched it would describe how
and from whom it was received where it was and what
 11

happened to it while in the witness’ possession the

condition in which it was received and the condition in
which it was delivered to the next link in the chain. The
totality of the prosecution evidence does not meet this
standard. It bears no account of the precautions taken to
ensure that there was no change in the condition of the
object and no opportunity for someone not in the chain to
have possession thereof.”

“Recently, in People v. Santos, Jr. G.R. No. 175593,

17 October 2007, 536 SCRA 489, 504-505, which involved
violation of Sections 5 and 11, Article II of R.A. No. 9165,
the Court agreed with the Office of the Solicitor General’s
observation that the identity of the corpus delicti has not
been sufficiently established since the confiscated plastic
sachets of shabu have not been marked and initialed at the
scene of the crime, according to proper procedure. Citing
People v. Lim, G.R. No. 141699, 7 August 2002, 386 SCRA
581, 597-598, citing Dangerous Drugs Board Regulation
No. 3, Series of 1979, as amended by Board Regulation
No. 2, S. 1990, which specified that any apprehending
team having initial control of illegal drugs and/or
paraphernalia should immediately after seizure or
confiscation, have the same physically inventoried and
photographed in the presence of the accused if there be
any, and/or his representative, who shall be required to
sign the copies of the inventory and be given a copy
thereof. The failure of the agents to comply with such
requirement raises doubt whether what was submitted for
laboratory examination and presented in court is the same
drug and/or paraphernalia as that actually recovered from
the accused”.

“While the seized drugs may be admitted in

evidence, it does not necessarily follow that the same
should be given evidentiary weight if the procedure in
Section 21 of R.A. No. 9165 was not complied with. The
Court stressed that the admissibility of the seized
dangerous drugs in evidence should not be equated with
its probative value in proving the corpus delicti. The
admissibility of evidence depends on its relevance and
competence while the weight of evidence pertains to
evidence already admitted and its tendency to convince
and persuade (People of the Philippines vs. Geraldine P.
Magat, G.R. No. 179939, September 29, 2008, 567 SCRA
86)”.

“The failure of the police officers to comply with the

procedure in the custody of seized drugs raises doubt as to
their origins, and negates the operation of the presumption
of regularity accorded to police officers”.
 12

“The Constitution mandates that an accused shall be

presumed innocent until the contrary is proven beyond
reasonable doubt. The burden lies on the prosecution to
overcome such presumption of innocence by presenting
the quantum of evidence required. In so doing, the
prosecution must rest on its own merits and must not rely
on the weakness of the defense. And if the prosecution
fails to meet the required amount of evidence, the defense
may logically not even present evidence on its own behalf.
In which case the presumption prevails and the accused
should necessarily be acquitted (People of the Philippines
vs. Cezar M. Cantalejo, G.R. No. 182790, April 24, 2009,
586 SCRA 777)”.

“The presumption of regularity in the performance of

official duty relied upon by the courts a quo cannot by
itself overcome the presumption of innocence nor
constitute proof of guilt beyond reasonable doubt.
Although the evidence for the defense is weak, the
prosecution must rely on the weight of its own evidence
and cannot draw strength from the weakness of the
defense. (People of the Philippines vs. Geraldine P. Magat,
G.R. No. 179139, September 29, 2008, 567 SCRA 86)”.

It is respectfully submitted that the rule on chain of custody as

enunciated in the above-cited cases which have for their subject
matter illegal drugs must apply with equal force in this case pertaining
to the alleged firearm, one (1) caliber .22 Magnum TM – North
American Arms loaded with five (5) live ammunitions and ten (10)
pieces live ammunitions for Caliber .22 Magnum which are the subject
matter of Criminal Case No. 2011-0094.

The prosecution failed to prove the chain of custody of the

alleged firearms and ammunitions stated above, from the time they
were allegedly seized up to the time of their formal offer before this
Honorable Court.

Section 12 of Rule 126 of the Rules on Criminal Procedure states

as follows:

“Sec. 12. Delivery of Property and inventory thereof;

return and proceedings therein – (a) The officer must
forthwith deliver the property seized to the Judge who
 13

issued the warrant, together with a true inventory

thereof duly verified under oath x x x

A careful scrutiny of the Inventory, Exh. D in Criminal Case No.

2011-0100 shows that the Inventory Sheet/Receipt for Property/Goods
seized has violated the aforecited mandatory verification and under
oath requirement of the Section 12 of Rule 126 of the Rules on
Criminal Procedure for the reason that said document was not verified
and was not under oath.

The aforecited mandatory requirement of the Rules is intended

to protect fundamental rights of the accused as such the same must
be complied with and strictly construed against the State, and liberally
in favor of the accused.

The absence of a verification which must be duly under oath as

required by the aforecited rule must be considered a fatal defect of the
subject Inventory which, it is respectfully submitted, is inadmissible in
evidence. This is an instance where the Rules has mandatorily required
that the Inventory of the items allegedly seized in the implementation
of a search warrant must be duly verified and under oath. A violation
of the Rule on verification requirement renders the document as a
mere scrap of paper.

Moreover, it is hereby pointed out that the identity and the name
of person who prepared the Inventory, Exh. D and Exh. H including the
signatures are nowhere to be found in the Inventory. This is a fatal
defect which renders this document inadmissible. This fatal defect is
compounded by the fact that the evidence for the prosecution had
created a confusion as to who really prepared the Inventory, Exh. D –
was it prepared by PO1 Mark Anthony Cledera or by PO2 Vivian
Relloso.
Let us examine a portion of the testimony of PO2 Vivian Relloso
on October 12, 2012:

Pros. Balane to P02 Vivian Relloso on direct examination:

 14

Q – Who made the Inventory?

A – I was the one who made the Inventory.
Q – How did you go about making the inventory?
A – In the presence of the mandatory witnesses.
(TSN, page 12, October 12, 2012)

However, PO1 Embert B. Buenafe, a member of the team, who

implemented the Search Warrant testified on June 28, 2012, a portion
of his testimony states as follows:

Pros. Balane on direct to PO1 Embert B. Buenafe:

Q – As Cledera was searching the bag what did you see at that
position of one meter away?
A – When PO1 Cledera opened the bag, I saw a gun, money and
suspected shabu.
Q – What else happened?
A – It was inventoried Sir and markings were made.
Q – Where did Officer Cledera conducted (sic) the inventory?
A – At the place where the bag was recovered.
Q – While Officer Cledera was conducting the inventory, making
his markings, where were you?
A – I was there also, about one (1) meter away Sir.
(TSN, pp. 18 and 19, June 28, 2012)

The above-cited conflicting testimonies of PO2 Vivian Relloso and

PO1 Embert Buenafe has rendered the Inventory, Exh. D in Criminal
Case No. 2011-0100 and Exh. H for Criminal Case No. 2011-0094,
doubtful as to who really prepared the same. And this doubt must be
considered fatal because preparation of the Inventory is a part of the
chain of custody. It is thus respectfully submitted that the fatal defects
of the Inventory Exh. D, namely, (a) absence of verification duly
subscribed and under oath, (b) absence of the name and signature of
the person who truly prepared the said Inventory, Exhs. D and H and
(c) the conflicting testimonies of PO2 Vivian Relloso and PO1 Embert
 15

Buenafe as cited above had rendered the said Inventory, Exh. D and
Exh. H, inadmissible.

The above-mentioned fatal defects of prosecution’s evidence,

has rendered it grossly insufficient to establish the guilt of the accused
beyond reasonable doubt. Consequently, the prosecution failed to
overcome the presumption of innocence guaranteed to him by no less
than the constitution. Accordingly, the accused need not present
evidence. He is legally entitled to an acquittal.

WHEREFORE, premises considered, it is respectfully prayed of

this Honorable Court that this Demurrer to Evidence be granted, and
that the above-entitled cases be ordered dismissed.

Naga City, Philippines, March 1, 2013.

SIMANDO & ASSOCIATES

Counsel for the accused
Peñafrancia Ave., Naga City

By:

AMADOR L. SIMANDO
IBP 923834 – 01/10/13-Naga City
PTR 109397-01/17/13-Naga City
Atty’s Roll 31104
MCLE Compliance No. IV-0001517
Issued on February 9, 2011 at Pasig City
Cp No. 09394427052
Landline (054) 473-4604

The City Prosecutor

Naga City
 16

Greetings:

Please take notice that the foregoing Demurrer to Evidence will

be submitted to the Honorable Court for consideration on March 8,
2013, at 8:30 AM.

AMADOR L. SIMANDO

Copy furnished:

The City Prosecutor

Naga City

By personal service.
 17

The insufficiency of the prosecution’s evidence is evident under

the following circumstances.

1. The prosecution dismally failed to prove an unbroken chain of

custody of the alleged illegal drugs that were seized from the
accused during the implementation of the Search Warrant No.
2008-026 against the accused;

2. The seizing authority failed to comply with the mandatory

directive of Sections 11 and 12 of Rule 126 of the Rules of
Criminal Procedure;

3. The seizing officer miserably failed to comply with the

provision of Section 21, Article II of R.A. 9165.
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ARGUMENTS

On the 1st ground:

In People vs. Gutierez, G.R. No. 179213, September 2, 2009,

the Supreme Court ruled that:

“Chain of custody means the duly recorded movements and

custody of the seized drugs at each stage, from the time of
seizure/confiscation to receipt in the forensic laboratory to
safekeeping, to presentation in court and destruction; such
record of movements and custody of the seized item shall
include the identity and signature of the person who had its
temporary custody, the dates and times when transfers of
custody were made in the course of safekeeping and use in
court as evidence and the final disposition. It would include
the testimony about every link in the chain, from the
moment the item was picked-up to the time it is offered in
evidence, detailing the precautions taken to ensure that
there had been no change in the condition of the item and
no opportunity for someone not in the chain to have
possession of the same.”

In this case, the prosecution failed to prove an unbroken chain of

custody of the alleged illegal drugs seized allegedly from the accused
during the implementation of the Search Warrant as mandated by the
above-cited Supreme Court ruling.

Culled from the evidence for the prosecution in the aspect of

chain of custody shows the following:

1. Agent Marpuri was the one who allegedly recovered the four
(4) plastic sachets containing white crystalline substance in
the kitchen area of the house of the accused (TSN, page 15,
July 20, 2010, testimony of SI III Edwin Romano);

2. SI III Contreras made the Inventory (TSN, page 16, July 20,
2010, testimony of SI III Romano);

3. Agent Marpuri gave the items to SI III Felix Contreras, at the

NBI Office in Naga City (TSN, page 18, July 20, 2010,
testimony of SI III Romano);
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4. SI III Romano allegedly made a return of the Search Warrant

and the items to the court (TSN, page 18, July 20, 2010, SI
III Romano);

5. Then the court returned back the items to SI III Romano

(TSN, page 20, July 20, 2010);

6. SI III Felix Contreras, Jr., delivered the items to the Provincial

Crime Laboratory and the same were received by PO1 Laut
(TSN, page 8, March 3, 2010, testimony of P/I Edcel
Villalobos);

7. PO3 Laut delivered the items to P/I Edcel Villalobos (TSN,

page 9, March 3, 2010, testimony of P/I Edcel Villalobos);

8. P/I Edcel Villalobos turned-over the items to the Evidence

Custodian, P03 Antonio Barbosa, (TSN, page 20, March 3,
2010, testimony of P/I Villalobos);

Guided by the aforecited case of People vs Gutierez, the

prosecution must have done the following to comply strictly with the
mandate of the Supreme Court in regard to chain of custody:

1. A duly recorded movements and custody of the seized drugs

at each stage, from the time of seizure/confiscation to receipt
in the forensic laboratory to safekeeping, to presentation in
court and destruction;

2. The record of movements and custody of the seized items

shall include the identity and signature of the person who had
its temporary custody, the dates and times when transfers of
custody were made in the course of safekeeping and use in
court as evidence and the final disposition;

3. The persons who had temporary custody of the seized items

must have testified about every link in the chain, from the
time they were picked-up to the time they were offered in
evidence, detailing the precautionary measures taken to
ensure that there had been no change in the condition of the
items and no opportunity for someone not in the chain to
have possession of the items.

Notwithstanding the clear directive of the aforecited ruling, the

prosecution failed to comply the same because –

1. No recorded movements and custody of the seized drugs at

each stage, from the time of seizure/confiscation to receipt in
the forensic laboratory to safekeeping, to presentation in
court and destruction was submitted in court as evidence;
 20

such record should have included the identities and signatures

of the persons who had their temporary custody, the dates
and times when transfers of custody were made in the course
of safekeeping and use in court as evidence and the final
disposition;

2. The persons who had temporary custody of the items

were not presented in court to testify, namely:

(a) Agent Marpuri

(b) The court personnel who received the items
(c) PO3 Laut who received the items from SI III
Contreras
(d) P03 Antonio Barbosa – the custodian of the items at the
Provincial Crime Laboratory

By reason of the prosecution’s failure to present to the court and

testify the above-named persons who had temporary custody of the
items allegedly seized from the accused, the prosecution has miserably
failed to prove and establish an unbroken chain of custody of the
alleged illegal drugs subject matter of this case. Consequently, on this
basis alone, the above-entitled case must be ordered dismissed.

On the second ground:

Section 12 of Rule 126 of the Rules of Criminal Procedure states

as follows:

Sec. 12. Delivery of property and inventory thereof;

return and proceedings therein. – (a) The officer must
forthwith deliver the property seized to the judge who
issued the warrant, together with a true inventory
thereof duly verified under oath. x x x x x

The seizing officer failed to comply with the mandatory

requirement of the aforecited Section 12 of Rule 126 because the
Inventory of Seized Property (Exh. E) was not duly verified and under
oath. Consequently, such fatal defect rendered the said Inventory of
Seized Property inadmissible in evidence and should therefore not be
considered by this Honorable Court.
 21

Moreover, the said Inventory does not show that the accused
has affixed his signature therein neither was there any showing that
the accused was furnished with a copy thereof. These defects are fatal
for the prosecution. No explanation was given by the seizing officer on
this fatal flaw.

The testimony of S1 III Felix Contreras is to the effect that the

items seized were not actually returned to the court that issued the
search warrant. He testified that while his team has submitted an
Inventory to the Court, nevertheless, the seized items were not
turned-over to the court as they were brought directly to the crime
laboratory. This testimony exhibited a fatal defect as it violated the
provision of Section 12 of Rule 126 of the Rules of Criminal Procedure.
(TSN, PP 4 and 5, February 9, 2012, Testimony of S1 III Contreras).

On the 3rd ground:

Section 21, Article II of R.A. 9165 states that: “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;

While it may be true that the Inventory was made by SI III

Contreras, however, the alleged items were not photographed as
required by the above-cited provision of law.

Consequently, the aforecited law which is mandatory in nature

was not strictly complied with thus such fatal defect in prosecution’s
evidence shall render its evidence questionable and irregular.
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The above-cited fatal defects had rendered the prosecution’s

evidence grossly insufficient to establish the guilt of the accused
beyond reasonable doubt.

WHEREFORE, premises considered it is most respectfully prayed

of this Honorable Court that the above-entitled case be ordered
dismissed for Insufficiency of Evidence.

Naga City, Philippines, January 18, 2013.

SIMANDO & ASSOCIATES

Counsel for the accused
Peñafrancia Ave., Naga City

By:
AMADOR L. SIMANDO
IBP 923834 – 01/10/13-Naga City
PTR 109397-01/17/13-Naga City
Atty’s Roll 31104
MCLE Compliance No. IV-0001517
Issued on February 9, 2011 at Pasig City
Cp No. 09394427052
Landline (054) 473-4604

Copy furnished:

The City Prosecutor

Naga City

By personal service.
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