People of the Philippines vs. Ferdinand Buniag y Mercadera

An accused may be convicted of attempted illegal sale of dangerous drugs under Section 26(b), Article II of RA 9165 as a crime necessarily included in illegal sale under Section 5, but the conviction cannot stand where the prosecution fails to establish the corpus delicti beyond reasonable doubt because of unjustified non-compliance with Section 21, Article II of RA 9165; the presumption of regularity in the performance of official duty cannot overcome the constitutional presumption of innocence.

Ferdinand Buniag y Mercadera, a resident of Wao, Lanao del Sur, was charged under Republic Act No. 9165, the Comprehensive Dangerous Drugs Act of 2002. The law penalizes illegal sale of dangerous drugs under Section 5, Article II and attempt to commit that offense under Section 26(b), and it prescribes in Section 21 the custody and disposition of seized dangerous drugs. The prosecution arose from a buy-bust operation conducted by PDEA agents.

Buniag, a resident of Wao, Lanao del Sur, was charged in Criminal Case No. 2008-498 with violation of Section 5, Article II of Republic Act No. 9165. The Information alleged that on or about 7:30 P.M. of August 9, 2008, at Olape St., Zone 2, Bayabas, Cagayan de Oro City, Buniag, without authority, sold and/or offered for sale, gave away, and delivered to a poseur-buyer one LG black and red travelling bag marked "NVP" containing two bundles of dried marijuana fruiting tops with stalks wrapped in blue print paper marked NVP-1 and NVP-2, and one bundle wrapped in a GRAPHIC poster paper marked NVP-3, with net weights of 154.7 grams, 118.8 grams, and 36.5 grams, respectively. Buniag pleaded not guilty upon arraignment.

According to the prosecution, at around 4:00 P.M. on August 9, 2008, PDEA Agent IO1 Rubylyn S. Alfaro and her confidential informant met Buniag outside Bayabas High School, Cagayan de Oro City. They agreed that IO1 Alfaro would buy ₱5,000.00 worth of marijuana from Buniag, with delivery at around 7:00 to 7:30 P.M. the same day along Olape, Zone 2, Bayabas. IO1 Alfaro and the informant returned to their office and relayed the information; a briefing followed in which IO1 Alfaro was designated poseur-buyer and IO2 Neil Vincent Pimentel was assigned as back-up and arresting officer. The buy-bust team—composed of IO2 Pimentel, IO1 Alfaro, PO2 Benjamin Reycites, SPO1 Amacanin, IO1 Pica, and the confidential informant—proceeded to the area in an unmarked service vehicle. They arrived at about 7:10 P.M.; IO1 Alfaro and the informant were dropped off along Olape Street while the rest stayed in the vehicle parked five to seven meters away. Minutes later, Buniag arrived carrying a black traveling bag. He approached IO1 Alfaro and demanded payment, but she insisted on seeing the narcotics first. Buniag opened the bag, and IO1 Alfaro and the informant saw three bundles of marijuana stalks and leaves. IO1 Alfaro then made the pre-arranged signal by a "missed call" to IO2 Pimentel, and the team rushed to the location. IO2 Pimentel arrested Buniag after apprising him of his constitutional rights and the nature of the crime, then took the black traveling bag with the three bundles. The team brought Buniag to their station with IO2 Pimentel in possession of the bag and the narcotics.

At the station, IO2 Pimentel marked the black traveling bag with his initials "NVP" and marked the three bundles successively as "NVP 1" to "NVP 3." He prepared the Inventory of Seized Items while their Regional Director made the Letter Request for Laboratory Examination. Pictures were taken of Buniag and the seized items. IO2 Pimentel and IO1 Alfaro then brought Buniag and the seized items to the Regional Crime Laboratory Office, which received them at 9:10 P.M. of the same day. PSI Erma Condino Salvacion conducted a qualitative examination and found the three bundles positive for marijuana, a dangerous drug, as embodied in Chemistry Report No. D-154-2008.

Buniag denied the charge. He testified that on August 8, 2008, he went to Cagayan de Oro City at his brother's request to check the latter's house in Bayabas. On the evening of the next day, he went out of his brother's house to buy food. Suddenly, a vehicle stopped in front of him and two persons, whom he later recognized as IO2 Pimentel and IO1 Alfaro, alighted and ran towards him. They handcuffed him and told him he was a suspect because there were plenty of marijuana in Wao; he replied that this was not true. After his arrest, he was made to board a vehicle. Inside, IO2 Pimentel asked for ₱20,000.00 so that he would be released; Buniag replied that he had no money because his family was very poor. IO2 Pimentel continued to ask whether he had a title to a lot or a house, and Buniag said he had none. At the PDEA Office, he was made to sit on a chair and was asked to point to a black bag; he was then photographed while pointing to it. He was brought to the crime laboratory, given a plastic container, and told to urinate in it. During his arrest and at the laboratory, he was made to sign documents without knowing their contents. Buniag vehemently denied owning the black traveling bag and the three bundles of marijuana inside it, and claimed he did not even know what marijuana is.

The RTC found that the prosecution sufficiently proved Buniag's guilt beyond reasonable doubt for the crime of attempt to sell and/or delivery of a dangerous drug, reasoning that there was a mere attempt to sell because the consideration had not yet been given when the arrest was made, and that Buniag was likewise liable for delivery because he had in fact given and delivered the bag containing marijuana to the poseur-buyer; it also ruled that the chain of custody was adequately established. The CA found that Buniag intended to sell marijuana and commenced overt acts, but that the sale was aborted when IO1 Alfaro confirmed the marijuana and made the pre-arranged "miss-call" to IO2 Pimentel; it held that the prosecution established an attempt to sell and that the failure to conduct inventory and photograph the confiscated items in the manner prescribed under Section 21 was not fatal, since marking at the police station in the presence of the accused was sufficient and the presumption of regularity applied.

• Attempted Illegal Sale: Whether the CA erred in finding Buniag guilty beyond reasonable doubt of violating Section 26(b), Article II of RA 9165.
• Corpus Delicti and Chain of Custody: Whether the prosecution established the corpus delicti beyond reasonable doubt despite non-compliance with Section 21, Article II of RA 9165.
• Presumption of Regularity: Whether the presumption of regularity in the performance of official duties can prevail over the presumption of innocence.

• Attempted Illegal Sale: Yes. The CA erred in affirming the conviction; although attempted illegal sale is necessarily included in illegal sale, the conviction cannot stand because the corpus delicti was not established beyond reasonable doubt.
• Corpus Delicti and Chain of Custody: No. The prosecution failed to establish the corpus delicti beyond reasonable doubt due to the buy-bust team's unjustified non-compliance with Section 21, Article II of RA 9165.
• Presumption of Regularity: No. The presumption of regularity in the performance of official duty cannot overcome the constitutional presumption of innocence where the buy-bust team blatantly disregarded Section 21.

• Attempted Illegal Sale: The CA correctly ruled that Buniag should have been convicted of attempted illegal sale of dangerous drugs. Under the rule on variance, while Buniag cannot be convicted of illegal sale because the sale was never consummated, he may be convicted of attempt to sell as it is necessarily included in illegal sale. A crime is attempted when the offender commences the commission of a felony directly by overt acts and does not perform all the acts of execution which should produce the felony by reason of some cause or accident other than his own spontaneous desistance. Buniag attempted to sell and commenced by overt acts the commission of the intended crime, but the sale was aborted when IO1 Alfaro, after confirming that Buniag had with him the marijuana, made a "miss-call" to IO2 Pimentel, the pre-arranged signal, and the rest of the team rushed to the area and placed Buniag under arrest. Thus, the CA correctly ruled that the accused may only be held liable for attempted illegal sale of dangerous drugs. However, the conviction cannot stand for the reasons below.

• Corpus Delicti and Chain of Custody: For successful prosecution of illegal sale of dangerous drugs under RA 9165, which necessarily includes attempted sale, the following elements must be proven: (1) the transaction or sale took place; (2) the corpus delicti or the illicit drug was presented as evidence; and (3) the buyer and seller were identified. In dangerous drugs cases, the confiscated drug constitutes the very corpus delicti, and the fact of its existence is vital to sustain a judgment of conviction. The identity of the dangerous drug must be established beyond reasonable doubt, and it must be proven with exactitude that the substance bought during the buy-bust operation is exactly the same substance offered in evidence. Even if the prosecution's version were believed, the second element was absent because the police failed to strictly comply with Section 21 of RA 9165. First, the police did not conduct the marking, photography, and inventory of the seized items at the place of arrest; without valid excuse, they brought the items to the police station, as IO2 Pimentel testified that the picture and marking were made only at the office. Second, although a media representative signed the inventory report at the police office, the law requires the mandatory witnesses to be present during the actual inventory and not merely after the fact; there was no representative from the DOJ or any elected official at the time of arrest and seizure, and inventory and photography at the police station. Section 21 strictly requires that the seized items be inventoried and photographed immediately after seizure or confiscation in the presence of (a) the accused or his/her representative or counsel, (b) an elected public official, (c) a representative from the media, and (d) a representative from the DOJ. The three required witnesses should already be physically present at the time of the inventory, which must be done immediately at the place of seizure and confiscation, a requirement easily complied with because a buy-bust operation is by nature a planned activity. While strict compliance may not always be possible under varied field conditions, non-compliance does not ipso facto render the seizure and custody void only if the prosecution satisfactorily proves (a) a justifiable ground for non-compliance and (b) that the integrity and evidentiary value of the seized items were properly preserved. Here, the police had no valid excuse; their claim that they feared people coming out of the house was frail since there were seven armed officers. The buy-bust team manifestly disregarded Section 21, and the integrity and evidentiary value of the corpus delicti were compromised. The buy-bust operation also appeared to be a sham: a buy-bust is a form of entrapment where the violator is caught in flagrante delicto and the officers are authorized and duty-bound to apprehend and search him, but where there was really no buy-bust operation, the corpus delicti cannot be proved despite the presumption of regularity and the seeming straightforward testimony of the arresting officers. The failure to comply with Section 21, the total absence of any witness, and the fact that the police claimed a preliminary meeting with Buniag yet still did not bring the required witnesses despite having time and opportunity indicated that there was no planned buy-bust operation, making the defense of denial and frame-up more believable.

• Presumption of Regularity: The CA held that the police officers enjoyed the presumption of regularity in the performance of official duties, but this presumption does not hold water. Because a buy-bust is a planned operation, it strains credulity why the buy-bust team could not have ensured the presence of the required witnesses under Section 21 or at least marked, photographed, and inventoried the seized items according to procedure. The presumption of regularity cannot stand because of the team's blatant disregard of Section 21. The presumption of regularity in the performance of official duty cannot overcome the stronger presumption of innocence in favor of the accused. The right of the accused to be presumed innocent until proven guilty is constitutionally protected, and it would be a patent violation of the Constitution to uphold the presumption of regularity over the presumption of innocence, especially where there are more than enough reasons to disregard the former. The prosecution failed to prove the corpus delicti due to multiple unexplained breaches of procedure in the seizure, custody, and handling of the seized drug, and thus failed to overcome Buniag's presumption of innocence. The Court also reminded prosecutors to diligently prove compliance with Section 21 and its Implementing Rules and Regulations, and stated that appellate courts may review the records to satisfy themselves that the required proof was adduced; if deviations are observed and no justifiable reasons are provided, the conviction must be overturned and the innocence of the accused affirmed.

• Attempted illegal sale as included offense — Under the rule on variance, an accused charged with illegal sale of dangerous drugs under Section 5, Article II of RA 9165 may be convicted of attempted illegal sale under Section 26(b) when the sale is not consummated, because the attempt is necessarily included in the illegal sale. A felony is attempted when the offender commences its commission directly by overt acts and fails to perform all acts of execution that should produce the felony by reason of a cause or accident other than spontaneous desistance. The Court applied this rule because Buniag commenced overt acts of sale but the transaction was aborted by the pre-arranged signal before consideration was paid.
• Corpus delicti in dangerous drugs prosecutions — The confiscated dangerous drug constitutes the corpus delicti of the offense, and its existence and identity must be established beyond reasonable doubt. For illegal sale, including attempted sale, the prosecution must prove: (1) the transaction or sale took place; (2) the corpus delicti or illicit drug was presented as evidence; and (3) the buyer and seller were identified. It must be proven with exactitude that the substance bought during the buy-bust operation is exactly the same substance offered in evidence. The Court found the corpus delicti not established because of the chain-of-custody breaches.
• Chain of custody under Section 21, RA 9165 — Section 21, Article II of RA 9165 strictly requires that seized items be inventoried and photographed immediately after seizure or confiscation, and that the physical inventory and photographing be done in the presence of (a) the accused or his/her representative or counsel, (b) an elected public official, (c) a representative from the media, and (d) a representative from the DOJ. The three required witnesses should already be physically present at the time of the inventory at the place of seizure. Non-compliance does not ipso facto render the seizure and custody void, but the prosecution must satisfactorily prove a justifiable ground for non-compliance and that the integrity and evidentiary value of the seized items were properly preserved. The Court applied this by finding no justifiable ground and compromised integrity.
• Presumption of regularity vs. presumption of innocence — The presumption of regularity in the performance of official duty cannot overcome the constitutional presumption of innocence of the accused. Where law enforcers blatantly disregard established procedures, the presumption of regularity cannot stand. The Court applied this by refusing to sustain the conviction on the CA's reliance on the presumption of regularity.
• Buy-bust operation as entrapment — A buy-bust operation is a form of entrapment in which the violator is caught in flagrante delicto and the police officers are authorized, indeed duty-bound, to apprehend the violator and search him for anything that may have been part of or used in the commission of the crime. Where there was really no buy-bust operation, the corpus delicti cannot be proved despite the presumption of regularity and the officers' testimony. The Court found indicia that no buy-bust operation occurred, including the failure to comply with Section 21 and the failure to bring required witnesses despite a prior meeting.

• "In cases involving dangerous drugs, the confiscated drug constitutes the very corpus delicti of the offense and the fact of its existence is vital to sustain a judgment of conviction." — This passage states the core reason why the identity and integrity of the seized drug are indispensable to a conviction under RA 9165.
• "It is of prime importance that the identity of the dangerous drug be established beyond reasonable doubt; and that it must be proven with exactitude that the substance bought during the buy-bust operation is exactly the same substance offered in evidence before the court." — This defines the exactitude required in proving the corpus delicti and supports the acquittal for failure to preserve the drug's identity.
• "Verily, the three required witnesses should already be physically present at the time of the conduct of the inventory of the seized items which, again, must be immediately done at the place of seizure and confiscation — a requirement that can easily be complied with by the buy-bust team considering that the buy-bust operation is, by its nature, a planned activity." — This is the Court's canonical formulation of the Section 21 witness requirement and its application to planned buy-bust operations.
• "The presumption of regularity in the performance of official duty cannot overcome the stronger presumption of innocence in favor of the accused." — This passage resolves the conflict between the two presumptions and supplies the constitutional basis for acquittal.

• People vs. Tumulak, 791 Phil. 148, 158 (2016) — Cited for the rule on variance: attempted illegal sale is necessarily included in illegal sale of dangerous drugs.
• People vs. Bartolini, 791 Phil. 626, 633-634 (2016) — Cited for the elements of illegal sale and the requirement that the identity of the dangerous drug be established beyond reasonable doubt.
• People vs. Sagana, G.R. No. 208471, August 2, 2017, 834 SCRA 225, 240 — Cited for the principle that the confiscated drug constitutes the corpus delicti of the offense.
• Derilo vs. People, 784 Phil. 679, 686 (2016) — Cited for the rule that the fact of existence of the dangerous drug is vital to sustain a judgment of conviction.
• People vs. Angeles, G.R. No. 237355, November 21, 2018 — Cited for the requirement that the three required witnesses be physically present at the time of the inventory of seized items.
• People vs. Ceralde, G.R. No. 228894, August 7, 2017, 834 SCRA 613, 625 — Cited for the rule that non-compliance with Section 21 does not ipso facto render the seizure void if there is justifiable ground and the integrity and evidentiary value of the seized items are preserved.
• People vs. Mateo, 582 Phil. 390, 410 (2008) — Cited for the definition of a buy-bust operation as a form of entrapment and the authority and duty of police officers to apprehend and search the violator.
• People vs. Dela Cruz, 666 Phil. 593, 605 (2011) — Cited for the rule that where there was really no buy-bust operation, the corpus delicti cannot be proved despite the presumption of regularity.
• People vs. Mendoza, 736 Phil. 749, 769-770 (2014) — Cited for the rule that the presumption of regularity in the performance of official duty cannot overcome the presumption of innocence.
• People vs. Jugo, G.R. No. 231792, January 29, 2018 — Cited for the appellate court's authority to review the records to determine whether the prosecution proved compliance with Section 21.

• Section 5, Article II, Republic Act No. 9165 — Penalizes the illegal sale, trading, administration, dispensation, delivery, distribution, and transportation of dangerous drugs; Buniag was originally charged under this provision.
• Section 26(b), Article II, Republic Act No. 9165 — Penalizes any attempt to commit the sale of dangerous drugs with the same penalty as the commission of the offense; the CA modified Buniag's conviction to this provision, and the Supreme Court discussed it in ruling that attempted sale is included in illegal sale.
• Section 21, Article II, Republic Act No. 9165 — Requires the apprehending team to immediately inventory and photograph seized drugs in the presence of the accused or his/her representative or counsel, a representative from the media, a representative from the DOJ, and any elected public official; the buy-bust team's unjustified non-compliance led to the acquittal.
• Article 6, Revised Penal Code — Defines an attempted felony as one where the offender commences the commission directly by overt acts and does not perform all acts of execution by reason of a cause or accident other than spontaneous desistance; cited to explain why Buniag could only be liable for attempted sale.
• Article III, Section 14, paragraph (2), 1987 Constitution — Guarantees that the accused shall be presumed innocent until the contrary is proved; cited to hold that the presumption of regularity cannot overcome this constitutional presumption.
• Section 13(c), Rule 124, Rules of Court — The procedural basis for the appeal from the CA Decision to the Supreme Court.

Carpio (Chairperson), Perlas-Bernabe, J. Reyes, Jr., and Lazaro-Javier, JJ., concur.