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DIVISION

[ GR No. 192785, Feb 04, 2015 ]

PEOPLE v. JOMER BUTIAL +

RESOLUTION

DEL CASTILLO, J.:

The prosecution's evidence must establish that the illegal drug presented in
court is the same illegal drug actually recovered from appellant. [1]

This is an appeal from the February 26, 2010 Decision [2] of the Court of
Appeals (CA) in CA-G.R. CR-HC No. 03170 which affirmed in toto the
December 3, 2007 Decision [3] of the Regional Trial Court (RTC) of Tabaco
City, Branch 17 in Criminal Case No. T-3864 finding Jomer Butial (appellant)
guilty of violating Section 5, [4] Article II of Republic Act No. 9165 or the
Comprehensive Dangerous Drugs Act of 2002.

Factual Antecedents

On December 16, 2002, an Information [5] was filed against appellant, the
accusatory portion of which reads as follows:
That on or about the 21 st day of October, 2002, at 10:35 o'clock in the
morning, more or less, at Purok 4, Barangay Sto. Cristo, Tabaco City,
Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, with deliberate intent to violate the law, did then and there
willfully, unlawfully, knowingly and criminally sell, deliver and give away to a
poseur-buyer, METHAMPHETAMINE HYDROCHLORIDE otherwise known
as "SHABU", contained in two (2) transparent plastic sachets each weighing
approximately 0.1 gm., without the necessary government authority, to the
detriment of public welfare.

ACTS CONTRARY TO LAW. [6]

After appellant pleaded "not guilty" to the charge, pre-trial and trial ensued.

Version of the Prosecution

The prosecution presented as witnesses Gilbert Borlagdan (Borlagdan), PO2

Roy Martirez (PO2 Martirez), SPO4 Rosalino Bonavente (SPO4 Bonavente),
SPO4 Benito Bognaloc and SPO1 Carlos H. Desuasido (SPO1 Desuasido). [7]
From their testimonies, the following version emerged:

The Chief of Police of Tabaco City instructed PO2 Martirez and SPO4
Bonavente to conduct a buy-bust operation on appellant after receiving
information that he was selling illegal drugs. Thus, on October 21, 2002, PO2
Martirez arranged for Borlagdan, a police asset, to act as a poseur-buyer and
gave him four P100 bills as marked money. PO2 Martirez, SPO4 Bonavente
and Borlagdan proceeded to Purok 4, Sto. Cristo, Tabaco City to entrap
appellant.

Upon their arrival, Borlagdan walked towards a house which is under

construction. PO2 Martirez and SPO4 Bonavente, on the other hand, hid
behind houses which were about seven meters away from where Borlagdan
was. Borlagdan approached appellant who was then working at the
construction site and asked if he could purchase shabu . When an agreement
was reached, Borlagdan handed over the marked money to the appellant while
the latter, in turn, gave him two plastic sachets containing white crystalline
substance. After the transaction, Borlagdan walked towards the place where
PO2 Martirez and SPO4 Bonavente were hiding. When he passed by them,
Borlagdan nodded his head as a signal that the sale was already consummated
and gave the sachets to PO2 Martirez. Thereupon, the police officers came out
of hiding. They immediately approached appellant who threw something on
the ground. PO2 Martirez arrested appellant and brought him to the police
station. SPO4 Bonavente who was left behind searched the place where he
saw appellant throw something and found therein a plastic sachet containing
white crystalline substance. He also summoned for the owner of the house
being constructed and asked for appellant's belongings. He was given a
backpack which he brought to the police station.

Meanwhile at the police station, PO2 Martirez ordered appellant to empty his
pockets and recovered from him one of the four P100 bills used as marked
money. PO2 Martirez then turned over the said marked money and the two
plastic sachets to the police investigator. When SPO4 Bonavente arrived, he
likewise gave appellant's backpack to the police investigator, who, in turn,
searched the same. Found therein were more sachets containing white
crystalline substance.

Two days later, five sachets with white crystalline substance were referred and
delivered to the crime laboratory for examination which all tested positive for
shabu, viz :

xxxx

SPECIMEN SUBMITTED:

Five (5) heat-sealed transparent plastic sachets marked as "A" through "E"
each with white crystalline substance having the following markings and
recorded net weights:

A = 3.7240 gram[s] B = 0.8642 gram C = 0.0513 gram [8]

D = 0.0336 gram E = 0.0313 gram

Version of the Defense

Appellant and two others, namely, Lourdes Benavides and Elsa San
Buenaventura, both residents of Purok 4, Sto. Cristo, Tabaco who claimed to
have witnessed appellant's arrest, testified for the defense. Their version of
the incident is as follows:

While appellant was working at the construction site, Robert Sierra (Sierra)
arrived and asked if there is a vacancy. When appellant said that he had to ask
the owner first, Sierra departed. A few minutes later, PO2 Martirez and SPO4
Bonavente arrived and arrested appellant. They took him to the police
station. Thereat, PO2 Martirez opened appellant's bag which was brought to
the station by SPO4 Bonavente. After asking him to identify the same, PO2
Martirez placed something inside the bag and then closed it. Appellant was
then ordered to open the bag. When he complied, pictures of him holding the
bag and the plastic sachets containing white crystalline substance were
taken. PO2 Martirez also inserted a P100 bill into the back pocket of his pants
and thereafter presented him to the Chief of Police.

Ruling of the Regional Trial Court

The RTC gave credence to the testimonies of the prosecution's witnesses. It

convicted appellant of the offense charged and disposed of the case in its
December 3, 2007 Decision [9] as follows:

WHEREFORE, from the foregoing, accused Jomer Butial is hereby found

GUILTY of Violation of Section 5, Article II, Republic Act [No.] 9165,
otherwise known as the Comprehensive Dangerous Drugs Act of 2002, and he
is hereby sentenced to suffer the penalty of life imprisonment and to pay a fine
of P500,000.00. Costs against accused.

SO ORDERED. [10]

Appellant filed a notice of appeal, [11] which was approved by the RTC. [12]
Hence, the records of the case were transmitted to the CA where the appeal
was docketed as CA-G.R. CR-H.C. No. 03170.

Ruling of the Court of Appeals

Finding the RTC's conviction of appellant to be well-supported by evidence,
the CA, in its February 26, 2010 Decision, [13] ruled as follows:

WHEREFORE, the instant appeal is DISMISSED for lack of merit and the
challenged Decision dated December 3, 2007 in Criminal Case No. T-3864 is
AFFIRMED in TOTO.

SO ORDERED. [14]

Hence, this appeal.

Issues

For the first time in this appeal, appellant questions his warrantless arrest. He
posits that his arrest was illegal since he was not arrested in flagrante delicto
. The police officers did not have personal knowledge that he was committing
a crime as they were hiding behind houses seven meters away from the place
where the alleged transaction took place and did not actually see the whole
incident. This being the case, the sachets allegedly seized from him cannot be
used in evidence against him being "fruits of a poisonous tree." Appellant also
contends that the prosecution was unable to prove all the elements of the
offense of illegal sale of drugs. He likewise points to the failure of the police
officers to properly observe the procedure outlined in Section 21, RA 9165 and
argues that the same constitutes a break in the chain of custody.

Our Ruling

The appeal must be granted.

The prosecution failed to show that the

identity and integrity of the corpus delicti
have been preserved.
There is merit in appellant's contention that not all elements of the offense of
illegal sale of shabu were proven and that there were unexplained gaps and
irregularities in the chain of custody of the seized items.

In a successful prosecution for the illegal sale of drugs, there must be evidence
of the following elements: "(1) the identities of the buyer and the seller, the
object, and the consideration; and (2) the delivery of the thing sold and the
payment therefor." [15] The evidence of corpus delicti must also be
established beyond doubt. In this case, the shabu "constitutes the very corpus
delicti of the offense and in sustaining a conviction under [RA 9165], the
identity and integrity of the corpus delicti must definitely be shown to have
been preserved." [16] "The chain of custody requirement performs this
function in buy-bust operations as it ensures that doubts concerning the
identity of the evidence are removed." [17]

The initial link in the chain of custody starts with the seizure of the plastic
sachets from appellant and their marking by the apprehending
officer. "Marking after seizure is the starting point in the custodial link, thus it
is vital that the seized contraband is immediately marked because succeeding
handlers of the specimens will use the markings as reference. The marking of
the evidence serves to separate the marked evidence from the corpus of all
other similar or related evidence from the time they are seized from the
accused until they are disposed at the end of criminal proceedings, obviating
switching, 'planting,' or contamination of evidence." [18] A review of the
records, however, reveals that the confiscated sachets subject of the illegal sale
of shabu were not marked. PO2 Martirez, himself, admitted that he did not
put any markings on the two plastic sachets that were handed to him by
Borlagdan after the latter's purchase of the same from appellant. [19] While he
mentioned that the police investigator to whom he turned over the items
wrote something down or made some initials thereon, he nevertheless could
not remember who wrote the initials. [20] And albeit later, PO2 Martirez
identified the police investigator as SPO1 Desuasido, [21] the latter, however,
when called to the witness stand, did not testify that he made any markings on
the said sachets or, at the very least, that he received the same from PO2
Martirez. His testimony merely focused on the fact that he prepared the
affidavit of a certain Baltazar. [22]

While SPO4 Bonavente testified that he put markings on several sachets of

shabu allegedly seized from appellant, it cannot be gathered from his
testimony that the ones he marked were those sachets subject of this
case. Instead, what it suggests is that those he marked were the sachets
belonging to appellant which he subsequently recovered, i.e. , the one
allegedly thrown away by appellant and picked up by SPO4 Bonavente from
the ground, and those found inside appellant's bag, viz :

[PROS. At that time[,] how was the buy-bust operation carried

BROTAMONTE]- out?
[SPO4 During that time we were in Sto. Cristo. When our asset
Bonavente]- got in the house and came out he sent positive sign that he
already bought the prohibited drugs. So I and Roy Martirez
immediately got inside the house.
Q- What happened next?
A- Upon seeing us[,] this Butial tried to escape and Roy
Martirez grabbed him and they grappled with each other. I
saw Butial throw pieces of sachets and I picked up said
sachets which contained shabu.
Q- How many sachets?
A- Only one.
xxxx
Q- What happened next?
A- After two minutes[,] the owner of the house arrived. I
asked him [for] the belongings of Butial and he picked up
the bag in the corner and handed it to me.
xxxx
Q- Upon arrival at the Tabaco Police Station[,] what
happened there particularly, insofar as the bag was
concerned?
A- I presented the bag to the desk officer for record purposes
and to the duty investigator.
Q- What did you do with the bag after that?
A- The duty investigator searched the bag.
Q- Where were you when the bag was searched.
A- I was outside the investigation room and I was only
informed that they found another sachet inside the bag.
xxxx
Q- Tell us if you actually witnessed the procedure of the
search?
A- No. Sir. I just saw the sachet already on the table when I
was informed by the desk officer.
Q- Having seen the evidence already on the table[,] what did
you do, if any?
A- I told the desk officer to prepare the papers to preserve the
items.
Q- To preserve the integrity and identity of the supposed
items[,] what else did you undertake, if any?
A- I remember, I put my initials [on] the sachets.
Q- Can you still recall what items were those where you put
your initials?
A- The sachets, sir.
Q- Can you still recall how many sachets were those?
A- I cannot recall.
Q- Those sachets that bear your initials, if the same will be
shown to you again, will you be able to identify them by
way of your markings or initials?
A- Yes, sir.
Q- I have here several sachets containing crystalline
substance [e]ncased in two bigger transparent sachets
which were turned over by the PNP Crime No. 5[,] please
look at [these] and tell us if you could recognize [them]?
A- Yes, sir, I recognize [them].
xxxx
Q- I am showing to you the contents of one bigger transparent
plastic packet consisting of two small sachets with
crystalline substance in [them]. Please look at [them] and
tell us if you are familiar with [them].
A- (Witness examining the very small sachets containing a
very small amount of white crystalline substance).
This is not my initial.
Q- There is a marking which is not of the witness and said
witness looking at the bigger transparent packet from
which these two plastic sachets came from. Look at [them]
and tell us if you could recognize [them].
A- (Witness looking and examining the bigger plastic and
recogniz[ing] the initials as [those] of Martirez).
Q- How about [the other] marking?
A- I do not know.
Q- How about these three other plastic sachets containing
crystalline substance which I just took out from the
previously sealed plastic container?
A- [These are] my initials.
COURT Witness acknowledging that it is his signature and also his
INTERPRETER: marking on the other bigger one. Two small and one bigger
sachets. Smaller sachet with D-325-02 marked "A" with
initial of Bonavente. Smaller sachet D-325-02 marked "B"
with initial of Bonavente. Smallest sachet D-325-02
marked "C." [23] (Emphases supplied)

Moreover, the Request for Laboratory Examination [24] of the items seized
suggests that the seized items were improperly handled. As may be recalled,
the police officers submitted five sachets of shabu for laboratory
examination. Aside from those three sachets marked by SPO4 Bonavente, the
two other sachets were listed and described as follows in the said request:

x xxx

2. Evidence/Documents submitted:

xxxx

Two (2) transparent plastic packets containing white crystalline suspected to

be Methamphetamine Hydrochloride (Shabu), approximately 0.1 gm. each,
and One (1) P100.00 with SN ES684504, all placed in a heat-sealed
transparent plastic with marking [letter] "I" on both sides ; [25]
(Emphasis supplied)

Notably, the portion " and One (1) P100.00 with SN ES684504, all placed in a
heat-sealed transparent plastic with marking [letter] "I" on both sides" was
obliterated by pen markings and the erasure was initialed by SPO1
Desuasido. But even without the said erasure, the two transparent plastic
packets containing white crystalline substance appear to have no markings at
all. Only the heat-sealed transparent plastic supposedly containing them has
the marking letter "I," which holds no significance as the making of the said
marking is also not supported by any testimony during trial.

Clearly, the absence of markings creates an uncertainty that the two sachets
seized during the buy-bust operation were part of the five sachets submitted to
the police crime laboratory. The prosecution's evidence failed to establish the
marking of the two sachets of shabu subject of this case, which is the first link
in the chain of custody and which would have shown that the shabu presented
in evidence was the same specimen bought from appellant during the buy-bust
operation. The lack of certainty therefore on a crucial element of the crime
i.e., the identity of the corpus delicti, warrants the reversal of the judgment of
conviction. [26]

The failure of the prosecution to identify the corpus delicti is more glaring
after considering that none of the five sachets submitted to the police crime
laboratory for qualitative examination and turned out positive for shabu
weighed close to the two plastic sachets that had an approximate weight of 0.1
gram each as stated in the Information. As previously mentioned, the police
officers sent five sachets that were marked and given corresponding weights,
viz :

A = 3.7240 gram[s] B = 0.8642 gram C = 0.0513 gram [8]

D = 0.0336 gram E = 0.0313 gram

It therefore appears that the sachets of shabu confiscated during the buy-bust
operation are totally different from the sachets forwarded to the police crime
laboratory and thereafter presented in evidence.

As a final note, it does not escape the Court's attention that there was also no
testimony from the police officers that they conducted a physical inventory
and took photographs of the sachets of shabu confiscated from appellant
pursuant to Section 21(1) [27] of Article II of RA 9165. Their sworn statements
did not mention any inventory-taking or photographing of the same. They
also did not bother to offer any justification for this omission. [28] At this
point, it is apt to restate the Court's pronouncement in People v. Pepino-
Consulta : [29]
[T]he Court cannot emphasize enough that zealousness on the part of law
enforcement agencies in the pursuit of drug peddlers is indeed laudable.
However, it is of paramount importance that the procedures laid down by law
be complied with, especially those that involve the chain of custody of the
illegal drugs. This is necessary in order to dispel even the most infinitesimal of
doubts on the outcome of arrests any buy-bust operations, so as not to render
naught the efforts and the resources put forth in the apprehension and
prosecution of violators of our drug laws. [30]

WHEREFORE , the appeal is GRANTED . The February 26, 2010 Decision

of the Court of Appeals in CA-G.R. CR-HC No. 03170 affirming the December
3, 2007 Decision of the Regional Trial Court of Tabaco City, Branch 17, in
Criminal Case No. T-3864, finding appellant Jomer Butial guilty of Violating
Section 5, Article II of Republic Act No. 9165, is REVERSED and SET
ASIDE and a new one is entered ACQUITTING him of the charge. Criminal
Case No. T-3864 is DISMISSED.

The Director of the Bureau of Corrections is ordered to immediately release

appellant Jomer Butial from detention, unless he is confined for another
lawful cause, and to report to this Court compliance within five days from
receipt of this Resolution.

SO ORDERED.

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

* Per Special Order No. 1910 dated January 12, 2015.

[1] People v. Capuno , G.R. No. 185715, January 19, 2011, 640 SCRA 233, 248-
249.

[2] CA rollo, pp. 132-142; penned by Associate Justice Ramon M. Bato, Jr. and
concurred in by Associate Justices Rosmari D. Carandang and Florito S.
Macalino.
[3] Records, pp. 206-226; penned by Judge Arnulfo B. Cabredo.

[4] Sec. 5. Sale, Trading, Administration, Dispensation, Delivery,

Distribution and Transportation of Dangerous Drugs and/or Controlled
Precursors and Essential Chemicals. - The penalty of life imprisonment to
death and a fine ranging from Five hundred thousand pesos (P500,000.00) to
Ten million pesos (P10,000,000.00) shall be imposed upon any person, who,
unless authorized by law, shall sell, trade, administer, dispense, deliver, give
away to another, distribute, dispatch in transit or transport any dangerous
drug, including any and all species of opium poppy regardless of the quantity
and purity involved, or shall act as a broker in any of such transactions.

[5] Records, p. 9-10.

[6] Id. at 9.

[7] The testimony of another prosecution witness, Police Inspector Josephine

Macura Clemen, the Forensic Chemist, was dispensed with after the parties
stipulated on the existence and authenticity of her chemistry report on the
examination done on the specimens allegedly seized from appellant.

[8] Chemistry Report No. D-325-02, id. at 6.

[9] Id. at 206-226.

[10] Id. at 226.

[11] Id. at 228.

[12] Id. at 229.

[13] CA rollo, pp. 132-142.

[14] Id. at 142.

[15] People v. Lorenzo, G.R. No.555 Phil. 394, 409 (2007).

[16] People v. Alcuizar, G.R. No. 189980, April 6, 2011, 647 SCRA 431, 437.

[17] People v. Capuno, supra note 1 at 248.

[18] Lopez v. People , G.R. No. 188653, January 29, 2014.

[19] TSN, September 14, 2005, pp. 31 and 59.

[20] Id. at 30-31.

[21] Id. at 57.

[22] TSN, November 16, 2006, pp. 11-18.

[23] TSN, June 21, 2006, pp. 5-10.

[24] Records, p. 165.

[25] Id.

[26] People v. Palomares , G.R. No. 200915, February 14, 2014.

[27] Section 21. Custody and Disposition of Confiscated, Seized, and/or

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

1) The apprehending team having initial custody and control of the drug 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.

[28] People v. Palomares, supra note 26.

[29] G.R. No. 191071, August 28, 2013, 704 SCRA 276.
[30] Id. at 303.

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