This is a Petition for Review on Certiorari^[1] under Rule 45 of the Rules of Court, as amended, seeking to reverse and set aside the Decision^[2] and Resolution^[3] of the Court of Appeals (CA) dated December 9, 2016 and July 17, 2017, respectively, in CA-G.R. CR No. 37102, which affirmed the conviction of Lamberto Mariñas y Fernando (petitioner) for violation of Section 11, Article II of Republic Act (R.A.) No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002.

The Antecedent Facts

The facts, as culled from the records, read as follows:

The petitioner and a certain George Hermino (Hermino) were both charged with violation of Section 11, Article II of R.A. No. 9165 before the Regional Trial Court (RTC) of San Pedro, Laguna. The Information reads:

The undersigned Asst. Provincial Prosecutor of Laguna hereby accuses LAMBERTO MARIÑAS y FERNANDO of the crime of VIOLATION OF SECTION 11, ARTICLE II of R.A. No. 9165 (The Comprehensive Dangerous Drugs Act of 2002), committed as follows:

That on or about October 2010, in the Municipality of San Pedro, Laguna, Philippines and within the jurisdiction of this Honorable Court, the said accused without authority or the law, did then and there willfully, unlawfully and feloniously have in his possession, custody and control one (1) small heat-sealed transparent plastic sachet containing methamphetamine hydrochloride, commonly known as "shabu", a dangerous drug, weighing zero point zero one (0.01) gram.

CONTRARY TO LAW.^[4]

On arraignment, petitioner and Hermino, assisted by counsel, entered a plea of "not guilty" to the offense charged.

The prosecution's version of the facts, as summarized by the Office of the Solicitor General (OSG) read as follows:

On October 5, 2010 at around 2:00 in the morning, PNP San Pedro, Laguna received a report regarding a motorcycle theft in the vicinity of Barangay Cuyab, San Pedro, Laguna. PO2 Santos, SPO4 Dela Peña, SPO2 Abutal and PO2 Avila responded to the report and conducted a monitoring of the area. At 3:00 in the morning, the police officers decided to go to the house of their asset, also in Barangay Cuyab, and on their way to the house, while walking through an alley, they saw two (2) male persons, the one at the doorway was showing to the other person standing outside the door, a plastic sachet which appeared to be shabu.

The police officers immediately approached the two (2) and introduced themselves as police officers when suddenly one person ran away and fled. PO2 Santos immediately held the other person, later identified as [the petitioner]. SPO2 Abutal, on the other hand, saw from the open door [Hermino], inside the house, holding a plastic sachet of shabu and a pair of scissors. Another empty plastic sachet was confiscated from Hermino, which was lying on top of the table, in plain view from the open door of his house.

After the two were arrested and after informing them of their Constitutional Rights, appellants were brought to the Police Station. PO2 Santos was in possession of the plastic sachet confiscated from Mariñas, while SPO2 Abutal was in possession of the plastic sachet confiscated from Hermino, from the place of arrest to the Police Station. The confiscated plastic sachets and pair of scissors were marked at the Police Station by PO2 Santos and SPO2 Abutal, respectively. Afterwards, the confiscated items were inventoried and a certification of inventory was issued. Appellants and the confiscated items were likewise photographed. Mediaman Nick Luares was present in the inventory also took photographs of the confiscated items and of appellants.

PO2 Santos and SPO2 Abutal prepared a Request for Laboratory Examination for seized items from appellants Mariñas and Hermino. PO2 Santos and mobile driver Eliseo Carmen brought the request for laboratory examination and the confiscated items to the PNP Crime Laboratory at the Camp Vicente Lim, Calamba City for drug analysis. The confiscated specimen, both from appellants Hermino and Mariñas were in the custody of PO2 Santos after marking, up to the submission to the PNP Crime Laboratory. PO2 Santos likewise personally turned over the specimen to the Receiving Clerk of the PNP Crime Laboratory. However, PO2 Eliseo Carmen was the one who signed the formal turn-over documents as PO2 Santos was not in uniform at the time.

Forensic Chemical Officer Lalaine Ong Rodrigo established that she personally received the confiscated items: two plastic sachets; a pair of scissors; and one empty transparent plastic sachet, including the Request for Laboratory Examination from the Receiving Clerk of the Regional Crime Laboratory, Camp Vicente Lim, Laguna. The two (2) small heat-sealed plastic sachets of shabu marked "LM-P" and "GH-P" were examined by her and found positive for methamphetamine hydrochloride, as contained in Chemistry Report No. D-313-10.

After Rodrigo's examination of the specimen, the same were placed into a container, sealed and marked to prevent tampering. She likewise personally retrieved the object evidence from the evidence custodian and bought (sic) the same before the trial court. She testified before the trial court that the plastic sachets were in the same condition at the time she examined it and when she retrieved it from the evidence custodian.^[5]

The version of the defense, insofar as the petitioner is concerned and as summarized^[6] by the RTC, reads as follows:

[The petitioner], on the other hand, testified that on October 5, 2010, he was sleeping in his house together with his live-in partner and their two children when police officers knocked so he opened the door. They told him that they were conducting a follow-up operation. Then, they entered and conducted a search in his house. They took and shook the pillows over the heads of his sleeping children. His live-in partner was awakened and surprised of what was happening but she just cried as she cannot do anything. After about thirty minutes, they showed him a small plastic sachet they allegedly found on top of his television set. He was then brought to the police station where he saw accused Hermino.^[7]

After trial, the RTC rendered a Consolidated Judgment^[8] dated September 10, 2014 finding petitioner and his co-accused guilty beyond reasonable doubt of the crime charged. In so ruling, the RTC opined that both have been positively identified by the witnesses for the prosecution to be the same individuals who were caught in flagrante delicto for possession of shabu. With regard to the identity of the said dangerous drugs, the RTC held that every chain in the custody of the confiscated dangerous drug was accounted for and remained unbroken, in accordance with Section 21 of R.A. No. 9165. The RTC did not give credence to the defense of denial and alibi because the accused failed to present the testimonies of the people living with them to substantiate their arguments. Neither did they file any administrative complaint against the police officers who arrested them.

The dispositive portion of the Consolidated Judgment reads:

WHEREFORE, foregoing considered, judgment is hereby rendered as follows:

1. In Criminal Case No. 10-7556-SPL, [the petitioner] is found GUILTY beyond reasonable doubt of violation of Section 11, Article II of [R.A.] No. 9165 and is hereby sentenced to suffer the penalty of twelve (12) years and one (I) day as minimum to fourteen (14) years and eight (8) months as maximum and to pay a fine of Three Hundred Thousand (P300,000.00) pesos without subsidiary imprisonment in case of insolvency.

2. In Criminal Case No. 10-7557-SPL, [Hermino] is found GUILTY beyond reasonable doubt of violation of Section 11, Article II of Republic Act No. 9165 and is hereby sentenced to suffer the penalty 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 of Three Hundred Thousand (P300,000.00) pesos without subsidiary imprisonment in case of insolvency.

The period of his preventive imprisonment should be given full credit.

Let the two plastic sachets of shabu subject matter of these cases be immediately forwarded to the Philippine Drug Enforcement Agency for its disposition as provided by law.

SO ORDERED.^[9]

Undeterred, petitioner and Hermino appealed to the CA and assigned the following errors that were allegedly committed by the RTC, to wit:

I. The trial court gravely erred in convicting the accused-appellants of the crime charged despite the illegality of their supposed in flagrante delicto arrest.

II. The trial court gravely erred in convicting the accused-appellants of the crime charged despite the prosecution's failure to establish the admissibility of the allegedly seized prohibited drugs for being fruits of the poisonous tree.

III. The trial court gravely erred in giving full credence to the prosecution's version despite the patent inconsistencies in the testimonies of the police officers with regard to the chain of custody of the seized illegal drugs.^[10]

On October 24, 2016, Hermino expired at the National Bilibid Prison Hospital.^[11]

On December 9, 2016, the CA rendered a Decision,^[12] the dispositive portion of which reads:

WHEREFORE, premises considered, the appeal is DISMISSED. The Consolidated Judgment dated 10 September 2014 of the [RTC] of San Pedro, Laguna, Branch 31 in Criminal Case Nos. 10-7556-SPL and 10-7557-SPL is AFFIRMED.

SO ORDERED.^[13]

Petitioner moved for reconsideration but the same was denied by the CA in a Resolution^[14] dated July 17, 2017.

Hence, this petition.

The Issues

The core issue for the Court's resolution is whether or not the CA erred in affirming petitioner's conviction for violation of Section 11, Article II of R.A. No. 9165.

Ruling of the Court

To convict an accused who is charged with illegal possession of dangerous drugs, the prosecution must establish the following elements by proof beyond reasonable doubt: (a) the accused was in possession of dangerous drugs; (b) such possession was not authorized by law; and (c) the accused was freely and consciously aware of being in possession of dangerous drugs.^[15]

The prosecution must prove with moral certainty the identity of the prohibited drug, considering that the dangerous drug itself forms part of the corpus delicti of the crime. The prosecution has to show an unbroken chain of custody over the dangerous drugs so as to obviate any unnecessary doubts on the identity of the dangerous drugs on account of switching, "planting," or contamination of evidence. Accordingly, the prosecution must be able to account for each link in the chain of custody from the moment that the illegal drugs are seized up to their presentation in court as evidence of the crime.^[16]

In this case, the petitioner was charged with the crime of Illegal Possession of Dangerous Drugs, defined and penalized under Section 11,^[17] Article II of R.A. No. 9165. The petitioner insists that he should be acquitted on the following grounds: (a) broken chain of custody of the seized drug; and (b) the inconsistent testimonies of the arresting officers with regard to the chain of custody.

The petitioner argues that the arresting officers marked the sachets at the police station, in clear violation of Section 21 of R.A. No. 9165 which requires marking of the subject sachet of drugs to be done at the place of apprehension or arrest. The petitioner also claims that the inconsistencies in the testimonies of the arresting officers as regards custody of the seized item supports his contention that there was a break in the chain of custody.

On these points, the Court disagrees with the petitioner.

The petitioner was caught in flagrante delicto. Section 5, Rule 113 of the Rules of Court lists the situations when a person may be arrested without a warrant, thus:

Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private person may, without a warrant, arrest a person:

a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense[.]

x x x x

Paragraph (a) of Section 5 is commonly known as an in flagrante delicto arrest. For a warrantless arrest of an accused caught in flagrante delicto to be valid, two requisites must concur: (1) the person to be arrested must execute an overt act indicating that he has just committed, is actually committing, or is attempting to commit a crime; and (2) such overt act is done in the presence or within the view of the arresting officer. ^[18]

All the foregoing requirements for a lawful search and seizure are present in this case. The police officers had prior justification to be at the petitioner's place as they were conducting a follow-up operation on carnapping incidents in the area when they chanced upon the petitioner standing by, holding a plastic sachet containing suspected illegal drugs; when they approached petitioner and upon introducing themselves as police officers, petitioner ran away. As the crystalline substance was plainly visible, the police officers were justified in seizing them. Simply put, when the arresting officers arrested the petitioner and confiscated the subject sachet of drugs, they did so pursuant to a lawful warrantless arrest and seizure.

The Guidelines on the Implementing Rules and Regulations (IRR) of Section 21 of R.A. No. 9165 expressly provide that in warrantless seizures, the marking of the seized items shall be done immediately at the place where the drugs were seized OR at the nearest police station OR nearest office of the apprehending officer or team, whichever is practicable, to wit:

A. Marking, Inventory and Photograph; Chain of Custody Implementing Paragraph "a" of the IRR.

A.1. The apprehending or seizing officer having initial custody and control of the seized or confiscated dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, instruments/paraphernalia and/or laboratory equipment shall, immediately after seizure and confiscation, mark, inventory and photograph the same in the following manner:

A1.1 The marking, physical inventory and photograph of the seized/confiscated items shall be conducted where the search warrant is served.

A1.2. The marking is the placing by the apprehending officer or the poseur-buyer of his/her initials and signature on the item/s seized.

A1.3. In warrantless seizures, the marking of the seized items in the presence of the violator shall be done immediately at the place where the drugs were seized or at the nearest police station or nearest office of the apprehending officer/ team, whichever is practicable. The physical inventory and photograph shall be conducted in the same nearest police station or nearest office of the apprehending officer/ team whichever is practicable. (Emphasis and underscoring Ours)

Relevant jurisprudence^[19] on the matter also states that if seizure was made as a consequence of or pursuant to a warrantless arrest, the physical inventory and marking may be conducted at the nearest police station, as was done by the arresting officers in this case. Clearly, there was compliance with respect to venue.

As to the petitioner's contention that the testimonies of the arresting officers were inconsistent and incredible, such inconsistency will not by itself automatically render void and invalid the seizure and custody over the seized items so long as the integrity and evidentiary value of the seized items were properly preserved by the apprehending officer or team.

In People v. Relato,^[20] the Court explained that in a prosecution of the sale and possession of methamphetamine hydrochloride prohibited under R.A. No. 9165, the State not only carries the heavy burden of proving the elements of the offense of, but also bears the obligation to prove the corpus delicti, failing in which the State will not discharge its basic duty of proving the guilt of the accused beyond reasonable doubt. It is settled that the State does not establish the corpus delicti when the prohibited substance subject of the prosecution is missing or when substantial gaps in the chain of custody of the prohibited substance raise grave doubts about the authenticity of the prohibited substance presented as evidence in court. Any gap renders the case for the State less than complete in terms of proving the guilt of the accused beyond reasonable doubt.^[21]

It now behooves the Court to determine once and for all whether or not there was compliance with the requirements of Section 21 of R.A. No. 9165.

Section 21, Article II of R.A. No. 9165 laid down the procedure that must be observed and followed by police officers in the seizure and custody of dangerous drugs. Paragraph (1) provides a list of the witnesses required to be present during the inventory and taking of photographs and the venue where these should be conducted, to wit:

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. (Emphasis Ours)

In 2014, R.A. No. 10640^[22] amended R.A. No. 9165, specifically Section 21 thereof, to further strengthen the anti-drug campaign of the government. Paragraph 1 of Section 21 was amended, in that the number of witnesses required during the inventory stage was reduced from three (3) to only two (2), to wit:

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 person/s for 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 by the apprehending officer/ team, shall not render void and invalid such seizures and custody over said items. (Emphasis and underscoring Ours)

A comparison of the cited provisions show that the amendments introduced by R.A. No. 10640 reduced the number of witnesses required to be present during the inventory and taking of photographs from three to two – an elected public official AND a representative of the National Prosecution Service (Department of Justice [DOJ]) OR the media. These witnesses must be present during the inventory stage and are likewise required to sign the copies of the inventory and be given a copy of the same, to ensure that the identity and integrity of the seized items are preserved and that the police officers complied with the required procedure. It is likewise worthy to note that failure of the arresting officers to justify the absence of the required witnesses, i.e., the representative from the media or the DOJ and any elected official, constitutes as a substantial gap in the chain of custody.

In the present case, the old provisions of Section 21 and its IRR shall apply since the alleged crime was committed before the amendment introduced by R.A. 10640. As culled from the records, the respondent was able to justify the failure of the arresting officers to mark the seized items at the place of apprehension or arrest. However, no justification was given as to the absence of the other required witnesses, i.e., an elected public official and DOJ representative. The records clearly state that aside from the petitioner and the arresting officers, only media man Nick Luares was present in the inventory, to wit:

After the two were arrested and after informing them of their Constitutional rights, appellants were brought to the Police Station. PO2 Santos was in possession of the plastic sachet confiscated from Mariñas, while SPO2 Abutal was in possession of the plastic sachet confiscated from Hermino, from the place of arrest to the Police Station. The confiscated plastic sachets and pair of scissors were marked at the Police Station by PO2 Santos and SPO2 Abutal, respectively. Afterwards, the confiscated items were inventoried and a certification of inventory was issued. Appellants and the confiscated items were likewise photographed. Mediaman Nick Luares was present in the inventory also took photographs of the confiscated items and of appellants.^[23]

On this point, the petition is impressed with merit.

The inventory and photographing of seized items form part of the chain of custody rule. Under the old provisions of Section 21, the inventory and photograph must be conducted in the presence of a representative from the media and the DOJ, AND any elected public official.

The Court is well aware that a perfect chain of custody is almost always impossible to achieve and so it has previously ruled that minor procedural lapses or deviations from the prescribed chain of custody are excused so long as it can be shown by the prosecution that the arresting officers put in their best effort to comply with the same and the justifiable ground for non-compliance is proven as a fact.

The Court's ruling in People v. Umipang^[24] is instructive on the matter:

Minor deviations from the procedures under R.A. 9165 would not automatically exonerate an accused from the crimes of which he or she was convicted. This is especially true when the lapses in procedure were recognized and explained in terms of justifiable grounds. There must also be a showing that the police officers intended to comply with the procedure but were thwarted by some justifiable consideration/reason. However, when there is gross disregard of the procedural safeguards prescribed in the substantive law (R.A. 9165), serious uncertainty is generated about the identity of the seized items that the prosecution presented in evidence. This uncertainty cannot be remedied by simply invoking the presumption of regularity in the performance of official duties, for a gross, systematic, or deliberate disregard of the procedural safeguards effectively produces an irregularity in the performance of official duties. As a result, the prosecution is deemed to have failed to fully establish the elements of the crimes charged, creating reasonable doubt on the criminal liability of the accused.

For the arresting officers' failure to adduce justifiable grounds, we are led to conclude from the totality of the procedural lapses committed in this case that the arresting officers deliberately disregarded the legal safeguards under R.A. 9165. These lapses effectively produced serious doubts on the integrity and identity of the corpus delicti, especially in the face of allegations of frame-up. Thus, for the foregoing reasons, we must resolve the doubt in favor of accused-appellant, as every fact necessary to constitute the crime must be established by proof beyond reasonable doubt.

As a final note, we reiterate our past rulings calling upon the authorities to exert greater efforts in combating the drug menace using the safeguards that our lawmakers have deemed necessary for the greater benefit of our society. The need to employ a more stringent approach to scrutinizing the evidence of the prosecution especially when the pieces of evidence were derived from a buy-bust operation redounds to the benefit of the criminal justice system by protecting civil liberties and at the same time instilling rigorous discipline on prosecutors.^[25] (Citations omitted)

There is no question that the prosecution miserably failed to provide justifiable grounds for the arresting officers' non-compliance with Section 21 of R.A. No. 9165, as well as the IRR. The unjustified absence of an elected public official and DOJ representative during the inventory of the seized item constitutes a substantial gap in the chain of custody. There being a substantial gap or break in the chain, it casts serious doubts on the integrity and evidentiary value of the corpus delicti. As such, the petitioner must be acquitted.

Finally, it cannot be gainsaid that it is mandated by no less than the Constitution^[26] that an accused in a criminal case shall be presumed innocent until the contrary is proved. In People of the Philippines v. Marilou Hilario y Diana and Laline Guadayo y Royo,^[27] the Court ruled that the prosecution bears the burden to overcome such presumption. If the prosecution fails to discharge this burden, the accused deserves a judgment of acquittal. On the other hand, if the existence of proof beyond reasonable doubt is established by the prosecution, the accused gets a guilty verdict. In order to merit conviction, the prosecution must rely on the strength of its own evidence and not on the weakness of evidence presented by the defense.

WHEREFORE, the petition is GRANTED. The Decision and Resolution of the Court of Appeals dated December 9, 2016 and July 17, 2017, respectively, in CA-G.R. CR No. 37102, are hereby REVERSED and SET ASIDE. Accordingly, petitioner Lamberto Mariñas y Fernando is ACQUITTED of the crimes charged. The Director of the Bureau of Corrections is ordered cause his immediate release, unless he is being lawfully held in custody for any other reason.

SO ORDERED.

Carpio (Chairperson),^[*] Perlas-Bernabe and Caguioa, JJ., concur.
Peralta, J., please see separate concurring opinion.

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^[*] Senior Associate Justice (Per Section 12, R.A. No. 296 The Judiciary Act of 1948, as amended)

^[1] Rollo, pp. 13-30.

^[2] Penned by Associate Justice Jhosep Y. Lopez, with Associate Justices Ramon R. Garcia and Leoncia R. Dimagiba, concurring; id. at 36-48.

^[3] Id. at 50-51.

^[4] Id. at 37.

^[5] Id. at 38-39.

^[6] Id. at 40.

^[7] Id. at 71.

^[8] Rendered by Judge Sonia T. Yu-Casano; id. at 90-97.

^[9] Id. at 96-97.

^[10] Id. at 71.

^[11] Id. at 21.

^[12] Id.

^[13] Id. at 48.

^[14] Id. at 50-51.

^[15] People of the Philippines v. Salim Ismael y Radang, G.R. No. 208093, February 20, 2017; Reyes v. Court of Appeals, 686 Phil. 137, 148 (2012), citing People v. Sembrano, 642 Phil. 476, 490-491 (2010).

^[16] People of the Philippines v. Ronaldo Paz y Dionisio, G.R. No. 229512, January 31, 2018, citing People v. Viterbo, 739 Phil. 593, 601 (2014); People v. Alivio, et al., 664 Phil. 565, 580 (2011); People v. Denoman, 612 Phil. 1165, 1175 (2009).

^[17] Sec. 11. Possession of Dangerous Drugs. - 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 possess any dangerous drug in the following quantities, regardless of the degree of purity thereof:

x x x x

Otherwise, if the quantity involved is less than the foregoing quantities, the penalties shall be graduated as follows:

x x x x

(3) Imprisonment of twelve (12) years and one (1) day to twenty (20) years and a fine ranging from Three hundred thousand pesos (P300,000.00) to Four hundred thousand pesos (P400,000.00), if the quantities of dangerous drugs are less than five (5) grams of opium, morphine, heroin, cocaine or cocaine hydrochloride, marijuana resin or marijuana resin oil, methamphetamine hydrochloride or "shabu", or other dangerous drugs such as, but not limited to, MDMA or "ecstasy", PMA, TMA, LSD, GHB, and those similarly designed or newly introduced drugs and their derivatives, without having any therapeutic value or if the quantity possessed is far beyond therapeutic requirements; or less than three hundred (300) grams of marijuana.

^[18] People v. Laguio, Jr., 547 Phil. 296, 328-329 (2007).

^[19] People v. Sanchez, 590 Phil. 214, 240-241 (2008), citing IRR of R.A. No. 9165, Sec. 21 (a): People v. Beran, 724 Phil. 788, 819 (2014).

^[20] 679 Phil. 268 (2012).

^[21] Id. at 277-278.

^[22] 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 June 9, 2014.

^[23] Rollo, pp. 38-39.

^[24] 686 Phil. 1024 (2012).

^[25] Id. at 1053-1054.

^[26] Article III, Section 14(2) of the 1987 Constitution mandates:

Sec. 14. x x x

(2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable.

^[27] G.R. No. 210610, January 11, 2018.

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SEPARATE CONCURRING OPINION

PERALTA, J.:

I concur with the ponencia in acquitting accused-appellant Lamberto Mariñas y Fernando of the charge of illegal possession of dangerous drugs, or violation of Section 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 an elected public official and a representative from the Department of Justice were not present during the inventory of the seized 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 comers 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.

x x x x

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.

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^[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, 16^th Congress, 1^st 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.