SECOND DIVISION

PEOPLE OF THE G.R. No. 254622

PHILIPPINES,
Plaintiff-Appellee, Present:

- versus - PERLAS-BERNABE, S.A.J,

Chairperson,
HERNANDO,
INTING,
MARKO PULGADO y MAGNO
a.k.a. "MAKO," GAERLAN, and
DIMAAMPAO, JJ
Accused-Appellant.

Promulgated·

FE 6

x--------------------------------·------x

DECISION

PERLAS-BERNABE, J.:

Assailed in this ordinary appeal 1 is the Decision2 dated June 16, 2020
rendered by the Court of Appeals (CA) in CA-G.R. CR HC No. 11074, which
affinned with modification the Decision 3 dated October 25, 2017 of the
Regional Trial Court of Olongapo City, Branch 75 (RTC) in Criminal Case
Nos. 2016-996 rmd 2016-997, finding accused-appellant Marko Pulgado y
Magno a.k.a. "Mako" (Pulgado) guilty beyond reasonable doubt of violating

1 See Notice of Appeal dated July 22, 2020; rollo, pp. 24-25.
2 Id. at 4-23. Penned by Associate Justice Jhosep Y. Lopez with Associate Justices Ricardo R. Rosario and
Bonifacio S..Pascua, concwring.
3
CA rollo, pp. 46-52. Penned by Judge Raymond C. Viray.
Decision 2 G.R. No. 254622

Sections 5 and 11, Article II of Republic Act No. (RA) 9165, 4 otherwise
known as the "Comprehensive Dangerous Drugs Act of2002."

. The Facts

The present case stemmed from two (2) separate Informations 5 filed
before the RTC charging accused-appellant with the crimes of Illegal Sale and
Illegal Possession of Dangerous Drugs, respectively defined· and penalized
under Sections 5 and 11, Article II of RA 9165, otherwise known as
"Comprehensive Dangerous Drugs Act of 2002," the accusatory portions of
which read:

Criminal Case No. 2016-996

(Illegal Sale of Dangerous Drugs)

That on or about the fourteenth (14th) day of June 2016, in the City
of-Olongapo, -Philippines, and within the jurisdiction of this Honorable
. Comi, the ab_ove-named accused, without being lawfully aut.horized[,] did
then and there[,] willfully, unlawfully, and feloniously deliver and sell to
PO3 Sherwin G. Tan P300.00 (SN-DE994536, W A251 l 04 and l.C-T886910)
worth of Methiunphetamine Hydrochloride[,] otherwise known as "shabu,"
a dangerous drug weighing One Hundred Six Thousandths (0.106) of a
gram placed in one (1) heat-sealed transparent plastic sachet, with marking
"Exh A ST BCS."

CONTRARY TO LAW. 6

Criminal Case No. 2016-997

(Illegal Posse_ssion of Dangerous Drugs)

. That on or about the f~uiteenth (14th ) day of June 2016; in the City
of Olongapo, Phillppines, and within the jurisdiction of this Honorable
Court, the above~named accused, without being lawfully authorized[,] did
then and there[,] willfully, unlawfully, and feloniously have in his effective
possession and control four (4) heat-sealed transparent plastic sachets, each
containing Methamphetamine Hydrochloride[,] otherwise known as
"shabu," a dangerous drug, with following markings and weight:

Bl (Exh B ROJ BCS) = 0.108 gram

B2 (Exh B-1 ROJ BCS) = 0.175 gram
. B3 (Exh B-2 ROJ BCS) = 0.143 ·grnm
B4 (Exh B-3 ROJ BCS) = 0.093 gram
Total= 0.519 gram

4 Entitled "AN ACT [NSTJTLJT!NG THE COMPREHENSIVE DANGEROUS DRUGS ACT OE 2002, REPEALING
REPUBLIC ACT NO. 6425, OTHERWISE KNO\VN AS THE DANGEROUS DRUGS ACT OF 1972, AS AMENDED,
PROVIDING FUNDS THEREFOR, AND FOR OTHER PURPOSES," approved on June 7, 2002.
Criminal Case No. 2016-996 is for th~ crime of Illegal Sale of Dangerous Drugs, defined and penalized
under Section 5, Article II of RA 9165 (see id. at 46); while Criminal Case No. 2016-997 is for the crime
of Illegal Possession of Dangerous Drugs, defined and penalized under Section 11, Article II of RA 9165
(see id.).
6
Rollo, p. 46.
 Decision . G.R. No. 254622

said accus.ed not hiving the .corresponding iicense or prescription to possess

said dangerous drug. · ·

CONTRARY TO LAW. 7

The prosecution alleged that at around 2:30 in the morning of June 14,
2016, officers of the City Anti-Illegal Drug Special Operations Team
(CAIDSOT) successfully conducted a buy-bust operation against Pulgado at
the Caltex Station in front of a 7/11 Convenience Store along Arthur Street,
West Bajac-Baja:c, Olongapo City, during which, one (1) heat-sealed
transparent plastic .sachet containing 0.108 gram of white crystalline
substance was recovered from him by Police Officer 3 Sherwin Tan (PO3
Tan). After Pulgado's arrest, Police Officer 2 Rexyboy Jugatan (PO2 Jugatan)
frisked him and recovered four (4) more heat-sealed transparent plastic
sachets containing a combined weight of 0.519 gram of the same substance
from his possession. The police officers then brought Pulgado to the police
station in Brgy. Barretto, Olongapo City,.and thereat, PO3 Tan and PO2
Jugatan placed their initials on the seized items and turned them over to Police
Officer 2 Benedick C: Sarmiento (PO2 Sarmiento) for marking, inventory,
and· photography in the presence of Pulgado, 1nembers of the CAIDSOT,
Barangay Kagawad Dave Antonio (Brgy. Kgd. Antonio), and media
representative Jeffrey B. Valdez of Brigada Siete. Thereafter, the seized items
were taken to the Philippine National Police Crime Laboratory where, after
examination by Police Senior Inspector Maria Cecilia G. Tang (PSI Tang),
their contents tested positive for methamphetamine hydrochloride or shabu, a
dangerous drug. 8·Thereafter, PSI Tang turned over the specimens to the
prosecution office for safekeeping until their presentation during trial. 9

·-
In defense, PuJgado denied the charges against him, as well as the
ownership of the items purportedly seized from him. He claimed that on the
day of the alleged incident; at around 7:00 in the evening, he was on his way
home from the public market when he was arrested for allegedly stealing at
the Caltex Station. 10 ·

In a Decisionll dated October 25,.2017, the RTC found Pulgado guilty

beyond reasonable doubt of the crimes charged, and accordingly, sentenced
him to suffer the following penalties: (a) in Criminal Case No. 2016a996, for
the crime of Illegal Sa.Je ofDangerous Dru_gs 1 thep(:m<;1ity ofl~feimprisonment
and to pay a.fine intlie ani.ourit of 1'500;000.00 plus ci:>sfs witnout subsidiary
imprisonment"in case'ofinsolvency; and (b) in Criminal Case No.-2016~997,
for the crime of Illegal ·Possession of Dangerous Drugs, the penalty of
imprisonment for the indetermi11~ate period of twelve (12) yeai·s and one (1)
day, as minimum, to fourteen (14) years and eight (8) months, as maximum,

7
Id.
8 See id. at 4-6; 46-47.
9
See CA rollo, p. 48.
10
See id. at 51.
11
Id. at 46-52.

(
Decision 4 G.R. No. 2~4622

and to pay a fine in the amount of P300,000.00 plus costs, without subsidiary
imprisonment in case of in.solvency .12 Giving credence to the testimony of
PO3 Tan, the RTC held that the prosecution successfully established the
elements of the crimes charged, and that the apprehending team adequately
preserved the chain of custody over the dangerous drugs from the moment of
seizure up to their presentation in court as evidence. 13 Meanwhile, the RTC
found Pulgado's defense of denial untenable for lack of clear and convincing
evidence showing that the CAIDSOT did not regularly perform their duties. 14

Aggrieved, Pulgado appealed 15 to the CA, arguing, among others, that

he should be acquitted on account of the apprehending temn's failure to
comply with the chain of custody rule considering that the police officers
failed to immediately mai-k the drug evidence at the place of arrest. 16
However, in a Decis1on 17 dated June 16, 2020, the CA affirmed the RTC
ruling with modification, sentencing Pulgado to suffer the following penalties:
(a) for the .crime of Illegal Sale of Dangerous Drugs,· the penalty of life
imprisomnent without eiigibility for parole and to pay a fine in. the amount of
PS00,000.00; and (b) for the crime of Illegal Possession of Dangerous Drugs,
the penalty ofimprisomnent for a period of twelve (12) years and one (1) day,
as minimum, to fourteen (14) years and eight (8) months, as maximum, and
to pay a fine in the amount of P300,000.00. 18 Echoing the trial court's
findings, it ruled that the prosecution successfully established the elements of
the crimes charged. 19 Moreover, it held that the chain of custody rule was duly
complied with, and thus, the integrity and evidentiary value of the seized items
had been properly preserved. 20 ·

Hence, this
,
appeal seeking that Pulgado's conviction be overturned.
. . . . .

The Issue Before the Court

The essential is.sue for the Court's resolution is whether or not ·Pulgado
is guilty beyond r~asonable doubt of the crimes charged. .

The. Court's Ruling

The appeal is meritorious.

12 Jd.at51-52.
13 Id. at 49-50.
14 See id. at 49 and 5 I.
15 See Notice of Appeal dated November 13, 2017; id. at IO. . 0 0
16 See Brief of the Accused-Appellant dated November 21, 2018; 1d. at o4-o7.
17 Rollo, pp. 4-23.
13
Id. at 22.
19 Id.atll-16.
20 Id.at 18-21. ·

I
Decision 5 G.R. No. 254622

In cases for Illegal Sale and/or Illegal Possession of Dangerous Drugs

under RA 9165, 21 it is essential that the identity of the dangerous drug be
established with moral certainty, considering that the dangerous drug itself
forms an integral part of the corpus delicti of the crime. 22 Failing to prove the
integrity of the corpus delicti renders the evidence for the State insufficient to
prove the guilt of the accused beyond reasonable doubt, and hence, warrants
an acquittal. 23

To establish the identity of the dangerous drugs with moral certainty,

the prosecution must be able to 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. 24 As part of the chain of custody procedure, the law
requires, inter alia, that the marking, physical inventory, and photography of
the seized items be conducted immediately after seizure and confiscation of
the same.

In People v. Beran, 25 the Court clarified when the physical inventory

and photography shall be conducted. In seizures covered by search warrants,
the physical inventory and photography must be conducted at the place where
the search warrant was served. On the other hand, in case of warrantless
seizures such as a buy-bust operation, the same may be conducted at the
nearest police station or office of the apprehending officer/team, whichever is
practicable. 26 Notably, however; RA 9165, as amended by RA 10640, and its
Implementing Rules and Regulations (IRR), are silent as to the procedure of
marking.

Marking is the first and most crucial step in the chain of custody rule as
it initiates the process of protecting innocent persons from dubious and
concocted searches, and of protecting as well the apprehending officers from
harassment suits based· on planting of evidence. This is when the
apprehending officer or poseur-buyer places his or her initials and signature
on the item/s seized. 27

21 The elements of Illegal Possession of Dangerous Drugs under Section I 1, Article II of RA 9165
are: (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) ~e accused freely and consciously possessed the said
drug. (See People v. Crispo, 828 Phil. 416,429 [2018]; People v. Sanchez, 827 Phil. 457, 465 [2018];
People v. Magsano, 826 Phil. 947,958 [2018]; Peoplev. Manansala, 826 Phil. 578,586 [2018]; People
v. Miranda, 824 Phil. 1042, 1050 [2018]; and People v. Mamangon, 824 Phil. 728, 735-736 [2018]; all
cases citing People v. Sumili, 753 Phil. 342,348 [2015] and People v. Bio, 753 Phil.730, 736 [2015]).
22 See People v. Crispo, id.; People v. Sanchez, id.; People v. Magsano, id.; People v. Manansala, id.;
People v. Miranda, id.; and People v. Mamangon, id. at 736. See also People v. Viterbo, 739 Phil. 593,
601 (2014).
23 See People v. Gamboa, 867 Phii. 548,570 (2018), citing People v. Umipang, 686 Phil. 1024, 1039-1040
(2012).
24 See People v. Ano, 828 Phil. 439,448 (2018); People v. Crispo, supra; People v. Sanchez, supra; People
v. Magsano, supra at 959; People v. Manansala, supra; People v. Miranda; supra at 1051; and People v.
lvfamangon , supra at 736. See also People v. Viter?o, supra.
25
724 Phil. 788 (2014).
26 Id. at 818. See also People v. Ramirez, 823 Phil. 1215, 1225 (2018).
27
People v. Ramirez, id.
Decision 6 G.R. No. 254622

Thus, inPe'aple v. Sanchez, 28 the Court ruled that marking should b'e
done in the presence of the apprehended violator immediately upon
confiscation to truly ensure that they are the same items that enter the chain
of custody. This is considering that marking after seizure is the starting point
in the custodial iink and is vital to be immediately undertaken because
succeeding handlers of the specimens will use the· markings as reference.
Marking 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 of at the end of criminal proceedings, thus preventing
switching, planting, or contamination of evidence. 29

On this note, it must be emphasized that compliance with the chain of

custody procedure is strictly enjoined as the same has been regarded "not
merely as a procedural technicality but as a matter of substantive law." 30 This
is because "[t]he law has been crafted by Congress as safety precautions to
address potential police abuses, especially considering that the penalty
imposed may be life imprisonnient.''31 Thus, in the' case of People V. Lim 32
(Lim), the Court E~ Ba~; definitively held that the prosecuti~n his fhep.a"siti;_,e
duty to demonstrate observance with the chain of custody rule ·under Section
21 of RA 9165, as amended, in such a way that it must acknowledge and
justify any perceived deviations therefrom. This is especially true jn cases
where the quantity of the seized drugs is miniscule, since it is highly
susceptible to planting, tampering, or alteration of evidence, 33 as in this case. 34

Nonetheless, the Court has recognized that due to varying field

conditions, strict compliance with the chain of custody procedure may not
always be possible. 35 As such, the failure of the apprehending team to strictly
comply with the same would not ipso facto render the seizure and custody
over the iteins as Yoid and invalid, prqvided that the prosecution satisfactorily
proves that: (a) there is a justifiable ground for non-compliance; and (b) the
integrity and evidentiary value of the seized items are properly preserved. 36
The foregoing is based on the saving clause found in Section 21 (a), 37 Article
II of the IRR of RA 9165, which was adopted into the text.of RA 10640. 38 It

28 590 Phil. 214 (2008}

29
See id.
30 See People v. Miramla, supra note 21. See also People v. Macapundag, 807 Phil. 234, 244 (2017), citing
People v. Umipang, supra.at 1038.
31 See People v. Segundo, 814 PhiL 697, 722 (2017), citing I'eople v. Umipang, id.
32 G.R. No.231989, September 4, 2018.
33
See id.
34 Ih Criminal Case No. 10-274933, the suspected shabu seized frOm accused-appeHant was 0.022 gr~m,
while in Criminal Case No . .10-274934, the suspected shabu seized from accused-appellant was 0.020
gram (See rollo, p. 2-3).
35 See People v. Sanchez, supra note 28.
36 See People v. Almorfe, 631 Phil. 51, 60 (2010). ·
' 7 Section 21 (a), Article II of the IRR of RA 9165 pertinently states: "Provided,f~rther: that non-
compliallce with these requirements under justifiable grounds, as long as the 1~tegrity and the
evidentiary value of the seized items are properly preserved by the apprehendmg officer/team,
shall not render void and invalid such seizures of and eustody over said items.," .
38 Section I of RA •l 0640 pertinently states: "Provided, finally, That noncompliance of these
requirements under justifiable .grounds, as long as the integrity and the evidentiary value of the
Decision 7 G.R. No. 254622

should, however,· be emphasized that for the saving clause to apply, the
prosecution must duly explain the reasons behind_t4e procedural lapses, 39
and 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. 40

Thus, when it comes to the marking requirement, the standard .rule is

that it should be done immediatelv after confiscation of the seized item from
the accused. Nonetheless, marking said itern/s at any other point in time may
be allowed, but only if there are justifiable reasons therefor.

In this case, there appears to be a deviation from the chain of custody

rule as records show that the marking of the items purportedly seized from
Pulgado was perfonned only at the police station. Notably, while the failure
of the apprehending team to strictly comply with the immediate marking
requirement would not ipso facto render the seizure and cu~tody over thE: items
as void, it is nevertheless incumbent upon the prosecution to account for such
deviation by presenting a justifiable reason therefor. Here; the.prosecution did
not duly explairi such. de~iation, arid merely i.n'sisted that the 'apprehending
team complied with the marking requirement by conducting the same at the
police station. This may be gleaned from the testimony of P03 Tan, to wit:

[Prosecutor Melani Fay V. Tadili]: After you gave the money to

the accused, what happened next? · ·
[P03 Tan]: I executed the pre-arranged signal by removing my
bull (sic) cap, ma'm (sic).

Q: Wh,at ):i.appened I1ext? . ,. .. . .

A: And when I felt that somebody from our tea.."11 was
approaching and I s~~ P02 Jt;gatan. frisking .Alias."Maco''; we
introduced ourselves as police officers, ma'm (sic): ·

Q: Who frisked the accused?

A: P02 Jugatan, ma'm (sic).

xxxx

Q: And what happened next?

A: We introduced ourselves as police officers after P02 Jugatan
infonned him of the Miranda. doctrine, we brought him to •the
Police Station, ma'm (sic).

Q: Where is the police station?·

A: At our Office at Police Station i, ma'm (sic).

Q: Wli.o was in possession of the sachets of s):J.abu sold to you by

the accused from the place of your operation to the Sta1J.on?

seized items are properly :presen·ed by the apprehending officer/team, sh.all not render void and
invalid such seizur~s and custody over said items."
39 People v. Almorfe? si1pni na~e, 36:
40 People v. De Guzman, 630 Phil. 637,649 (2010).
Decision 8 G.R. No. 254622

A: I was holding it, ma'm (sic).

Q: How about the other sachets of shabu recovered by Police

Officer Jugatan, who was in possession of the same?
A: In his possession, ma'm (sic). 41

xxxx

Q: Do you know what P02 Sarmiento do (sic) with the sachets of

shabu during your inventory?
A: Yes, ma'm (sic).

Q: What?
A: We put markings, ma'm (sic).

Q: After the inventory?

A: Before he prepared the inventory we put our initials, ma'm
(sic).

Q: How were you able to put your initials on the sachets of shabu
sold to you when you said that the sachets of shabu were already
in the possession of P02 Sarmiento?
A: Before I turn[ed] over to him, I already put my initials, ma'm
(sic).

Q: What initials did you place?

A: ST, ma'm (sic).

Q: After marking the sachets of shabu with your initials, what did
you do with it?
A: I hand[ed] it over to P02 Sarmiento, ma'm (sic).

Q: And do you know what P02 Sarmiento do with it?

A: He also put his initials, ma'm (sic). 42

In view of the aforementioned unjustified non-compliance with the

chain of custody rule, the Court is constrained to conclude that the integrity
and evidentiary value of the drugs purportedly seized from Pulgado were
compromised, thereby warranting his acquittal.

As a final word, the Court, in People v. Miranda,4 3 issued a definitive

reminder to prosecutors when dealing with drugs cases. It declared that
"[since] the [procedural] requirements are clearly set forth in the law, then the
State retains the positive duty to account for any lapses in the chain of custody
of the drugs/items seized from the accused, regardless of whether or not the
defense raises the same in the proceedings a quo; otherwise, it risks the
possibility of having a conviction overturned on grounds that go into the
evidence's integrity and evidentiary value, albeit the same are raised only for

41
Rollo, p. 14.
42 Id. at 19-20.
43
Supra note 2 I.
Decision 9 G.R. No. 254622

the first time on appeal, or even not raised, become apparent upon. further
review ."44 ·

WHEREFORE, the appeal is GRANTED. The Decision dated June

16, 2020 of the Court of Appeals in CA-G.R. CR HC No. 11074 is hereby
REVERSED and SET ASIDE. Accordingly, accused-appellant Marko
Pulgado y Magno a.k.a. "Mako" is ACQUITTED of the crimes charged. The
Director of the Bureau of Corrections, Muntinlupa City is ordered to cause his
immediate release, unless he is being lawfully held in custody for any other
reason.

Let a copy of this Decision be furnished to the Director General of the

Bureau of Corrections, Muntinlupa City, for immediate implementation. The
Director General is DIRECTED to inform this Court the action he/she has
taken within ·five days from receipt of this Decision.

Let entry _of judgment be issued immediately.

SO ORDERED.

JAO,Vv,tJ/ •·
ESTELA M.':lfEIRLAS-BERNABE
Senior Associate Justice

44
See id. at 1059.
Decision 10 G.R. No. 254622

WE CONCUR:

Associate Justice

HEN
Associate Justice

B.DIMAAMP

ATTESTATION

I attest that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the
Court's Division.

ESTELA M. ~~ERNABE
Senior Associate Justice
Chairperson, Second Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the

Division Chairperson's Attestation, I certify that the conclusions in the above
Decision had been reached in consultation before the case was assigned to the
writer of the opinion of the Court's Division.

G.GESMUNDO