By Rey Panaligan
For failure of the police to follow strictly the guidelines on the custody of seized illegal drugs in a buy-bust operation, a Laoag City resident, who was sentenced to life imprisonment for selling shabu in 2011, has been acquitted by the Supreme Court (SC).
Ordered released from detention unless being lawfully held for another cause was Jerome A. Pascua, alias “Ogie,” of Barangay 40 in Nalbo, Laoag City, Ilocos Norte in a decision written by Justice Mariano C. del Castillo.
Case records showed that the provincial anti-illegal drugs task force, acting on a tip from an informant, organized a buy-bust operation on March 31, 2011 to arrest Pascua who was pointed to as a supplier of shabu in his village.
A police officer pretended to be the buyer and gave P1,000 to Pascua in exchange for a sachet of shabu weighing 0.0154 grams. On pre-arranged signal, the members of the buy-bust team arrested Pascua inside his house.
When searched, one of the rooms yielded illegal drugs paraphernalia. Thus Pascua and one Manilyn Pompa, alleged girlfriend of Pascua, were also charged with violation of Section 12 of Article II of Republic Act No. 9165, the Comprehensive Dangerous Drugs Act.
Only Pascua was charged with violation of Section 5 of Article II of RA 9165 on the illegal sale of dangerous drugs before the Laoag City regional trial court (RTC).
On Dec. 4, 2012, the RTC handed down its decision acquitting Pascua and Pompa of violating Section 12.
But the trial court found Pascua guilty of violating Section 5, selling illegal drugs, and was sentenced to life imprisonment and ordered to pay a fine of P2 million.
On appeal, the Court of Appeals (CA) affirmed the ruling handed down by the RTC in its decision dated Oct. 9, 2015.
The CA ruled there was a valid buy-bust operation. It also held that the chain of custody rule was complied with and the elements of the crime of illegal sale of shabu were established by evidence.
Pascua elevated the CA decision to the SC.
After a review of the evidence presented before the trial court, the SC found there was lapse in the custody of the seized illegal drug, particularly during the inventory of the seized items.
The SC pointed out that Section 21, Article II of RA 9165 provides 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.”
In Pascua’s case, the SC said that the three witnesses required by law in the inventory of the seized items were not present. Only a media person and a chief Barangay Tanod (watchman), who is not even an elected official, were present and there was no DOJ representative.
It pointed out that “in case the presence of the necessary witnesses was not obtained, the prosecution must allege and prove not only the reasons for their absence, but also the fact that earnest efforts were made to secure their attendance. Here, the prosecution failed to prove both.”
“In view of the foregoing, the Court is constrained to reverse the conviction of the appellant (Pascua) due to the failure of the prosecution to provide a justifiable reason for the non-compliance with the Chain of Custody Rule, which creates doubt as to the integrity and evidentiary value of the seized plastic sachet of shabu,” the SC ruled.
Last September, the SC laid down the mandatory guidelines in the custody and disposition of confiscated, seized or surrendered illegal drugs to avoid poorly built-up cases that clog court dockets.
In a decision written by Justice Diosdado M. Peralta, the guidelines are:
1. “In the sworn statements/affidavits, the apprehending/seizing officers must state their compliance with the requirements of Section 21 (1) of Republic Act No. 9165 (Comprehensive Dangerous Drugs Act of 2002), and its Implementing Rules and Regulations (IRR);
2. “In case of non-observance of the provision, the apprehending/seizing officers must state the justification or explanation therefor as well as the steps they have taken in order to preserve the integrity and evidentiary value of the seized/confiscated items;
3. “If there is no justification or explanation expressly declared in the sworn statements/affidavits, the investigating fiscal must not immediately file the case before the court. Instead, he or she must refer the case for further preliminary investigation in order to determine the (non) existence of probable cause; and
4. “If the investigating fiscal filed the case despite such absence, the court may exercise its discretion to either refuse to issue a commitment order (or warrant of arrest) or dismiss the case outright for lack of probable cause in accordance with Section 5, Rule 112, Rules of Court.
The guidelines also provide 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.”
Pascua’s case was not yet covered by the new guidelines.