People of the Philippines vs. Marko Pulgado

Marking of seized drugs must be done in the presence of the apprehended violator immediately upon confiscation; marking at the police station, without any justifiable reason duly explained and proven by the prosecution, constitutes an unjustified deviation from the chain of custody rule that compromises the integrity and evidentiary value of the corpus delicti and warrants acquittal.

The case involves the prosecution of Marko Pulgado y Magno a.k.a. "Mako" for illegal sale and illegal possession of dangerous drugs under Republic Act No. 9165, otherwise known as the "Comprehensive Dangerous Drugs Act of 2002," as amended by Republic Act No. 10640. The statutory backdrop is the chain of custody rule under Section 21, Article II of RA 9165, which requires the marking, physical inventory, and photography of seized drugs immediately after seizure and confiscation, and the saving clause under Section 21(a) of the IRR, as adopted into the text of RA 10640, which permits non-compliance under justifiable grounds provided the integrity and evidentiary value of the seized items are properly preserved. The case turns on the prosecution's compliance with the marking requirement of that rule.

On June 14, 2016, at around 2:30 in the morning, officers of the City Anti-Illegal Drug Special Operations Team (CAIDSOT) of Olongapo City conducted a buy-bust operation against Marko Pulgado y Magno a.k.a. "Mako" at the Caltex Station in front of a 7/11 Convenience Store along Arthur Street, West Bajac-Bajac, Olongapo City. The operation gave rise to two separate Informations filed before the Regional Trial Court of Olongapo City, Branch 75 — Criminal Case No. 2016-996 for illegal sale of dangerous drugs under Section 5, Article II of RA 9165, and Criminal Case No. 2016-997 for illegal possession of dangerous drugs under Section 11, Article II of the same law. The Information in Criminal Case No. 2016-996 alleged that Pulgado delivered and sold to PO3 Sherwin G. Tan P300.00 worth of methamphetamine hydrochloride, otherwise known as shabu, weighing 0.106 gram placed in one heat-sealed transparent plastic sachet marked "Exh A ST BCS." The Information in Criminal Case No. 2016-997 alleged that Pulgado had in his effective possession and control four heat-sealed transparent plastic sachets containing methamphetamine hydrochloride with the following markings and weights: B1 (Exh B ROJ BCS) = 0.108 gram; B2 (Exh B-1 ROJ BCS) = 0.175 gram; B3 (Exh B-2 ROJ BCS) = 0.143 gram; and B4 (Exh B-3 ROJ BCS) = 0.093 gram, for a total of 0.519 gram.

According to the prosecution, PO3 Tan, the poseur-buyer, handed the marked money to Pulgado and then executed the pre-arranged signal by removing his bull cap. PO2 Rexyboy Jugatan then frisked Pulgado, and the officers introduced themselves as police officers after informing him of the Miranda doctrine. One heat-sealed transparent plastic sachet containing 0.108 gram of white crystalline substance was recovered from Pulgado by PO3 Tan, while PO2 Jugatan recovered four more heat-sealed transparent plastic sachets containing a combined weight of 0.519 gram of the same substance from his possession. The seized items were later examined by Police Senior Inspector Maria Cecilia G. Tang of the Philippine National Police Crime Laboratory, and their contents tested positive for methamphetamine hydrochloride or shabu, a dangerous drug.

Pulgado was brought to the police station in Barangay Barretto, Olongapo City. There, PO3 Tan and PO2 Jugatan placed their initials on the seized items and turned them over to PO2 Benedick C. Sarmiento for marking, inventory, and photography. The marking, inventory, and photography were conducted in the presence of Pulgado, members of the CAIDSOT, Barangay Kagawad Dave Antonio, and media representative Jeffrey B. Valdez of Brigada Siete. Thereafter, the seized items were taken to the crime laboratory, and after examination, PSI Tang turned over the specimens to the prosecution office for safekeeping until their presentation during trial. PO3 Tan testified that he was holding the sachet sold to him from the place of the operation to the station, while PO2 Jugatan had possession of the other sachets recovered; that before turning over the sachet to PO2 Sarmiento, he had already placed his initials "ST" on it; and that PO2 Sarmiento also placed his initials on it.

In defense, Pulgado 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.

The RTC gave credence to PO3 Tan's testimony and found that the prosecution had established the elements of the crimes charged and that the apprehending team had adequately preserved the chain of custody over the dangerous drugs from the moment of seizure up to their presentation in court as evidence. It found Pulgado's defense of denial untenable for lack of clear and convincing evidence showing that the CAIDSOT did not regularly perform their duties. The CA echoed these findings, ruling that the elements of the crimes charged were successfully established and that the chain of custody rule was duly complied with, such that the integrity and evidentiary value of the seized items had been properly preserved. Both lower courts proceeded on the factual premise that the marking of the seized items was performed at the police station, a point that would prove decisive on appeal.

• Chain of Custody — Immediate Marking: Pulgado argued that he should be acquitted on account of the apprehending team's failure to comply with the chain of custody rule, considering that the police officers failed to immediately mark the drug evidence at the place of arrest.

• Guilt Beyond Reasonable Doubt: Whether Pulgado is guilty beyond reasonable doubt of the crimes charged.

• Guilt Beyond Reasonable Doubt: No. The appeal is meritorious. The prosecution failed to establish the identity of the dangerous drugs with moral certainty because the apprehending team marked the seized items only at the police station, not immediately upon confiscation, and the prosecution did not duly explain or justify this deviation from the chain of custody rule under Section 21, Article II of RA 9165.

• Guilt Beyond Reasonable Doubt: In cases for illegal sale and/or illegal possession of dangerous drugs under RA 9165, the identity of the dangerous drug must be established with moral certainty, because the dangerous drug itself forms an integral part of the corpus delicti of the crime. Failure 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 warrants an acquittal. To establish identity with moral certainty, the prosecution must 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.

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. In People vs. Beran, the Court clarified that in seizures covered by search warrants, the physical inventory and photography must be conducted at the place where the search warrant was served; in 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. However, RA 9165, as amended by RA 10640, and its 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 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. In People vs. Sanchez, the Court ruled that marking should be 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. Marking after seizure is the starting point in the custodial link and is vital to be immediately undertaken because succeeding handlers of the specimens will use the markings as reference. It 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.

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, because the law has been crafted by Congress as safety precautions to address potential police abuses, especially considering that the penalty imposed may be life imprisonment. In People vs. Lim, the Court En Banc definitively held that the prosecution has the positive 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 where the quantity of the seized drugs is miniscule, since it is highly susceptible to planting, tampering, or alteration of evidence, as in this case.

Nonetheless, due to varying field conditions, strict compliance with the chain of custody procedure may not always be possible. The failure of the apprehending team to strictly comply would not ipso facto render the seizure and custody over the items void and invalid, provided 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. This is based on the saving clause found in Section 21(a), Article II of the IRR of RA 9165, which was adopted into the text of RA 10640. For the saving clause to apply, however, the prosecution must duly explain the reasons behind the procedural lapses, and 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. Thus, when it comes to the marking requirement, the standard rule is that it should be done immediately after confiscation of the seized item from the accused; marking at any other point in time may be allowed, but only if there are justifiable reasons therefor.

In this case, there was a deviation from the chain of custody rule: the marking of the items purportedly seized from Pulgado was performed only at the police station. While the failure of the apprehending team to strictly comply with the immediate marking requirement would not ipso facto render the seizure and custody over the items void, it was incumbent upon the prosecution to account for such deviation by presenting a justifiable reason therefor. The prosecution did not duly explain such deviation and merely insisted that the apprehending team complied with the marking requirement by conducting the same at the police station, as gleaned from the testimony of PO3 Tan, who testified that after the buy-bust and after informing Pulgado of the Miranda doctrine, they brought him to the police station, and that it was only before the preparation of the inventory that they placed their initials on the sachets. In view of the unjustified non-compliance with the chain of custody rule, the integrity and evidentiary value of the drugs purportedly seized from Pulgado were compromised, thereby warranting his acquittal. The Court also reiterated the reminder in People vs. Miranda that 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 the first time on appeal, or even not raised, become apparent upon further review.

• Chain of Custody Rule — In cases for illegal sale and/or illegal possession of dangerous drugs under RA 9165, the identity of the dangerous drug must be established with moral certainty because the dangerous drug itself forms an integral part of the corpus delicti of the crime. The prosecution must 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. Failure 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 warrants an acquittal. The Court applied this rule to acquit Pulgado.

• Corpus Delicti — The dangerous drug itself forms an integral part of the corpus delicti of the crimes of illegal sale and illegal possession of dangerous drugs. Its identity must be established with moral certainty; otherwise, the evidence for the State is insufficient to prove guilt beyond reasonable doubt. In this case, the integrity and evidentiary value of the drugs purportedly seized from Pulgado were compromised, so the corpus delicti was not established.

• Immediate Marking Rule — Marking is the first and most crucial step in the chain of custody rule. It is the step by which the apprehending officer or poseur-buyer places his or her initials and signature on the item/s seized. It must be done in the presence of the apprehended violator immediately upon confiscation. Marking after seizure is the starting point in the custodial link and is vital to be immediately undertaken because succeeding handlers of the specimens will use the markings as reference. It 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. Marking at any other point in time may be allowed, but only if there are justifiable reasons therefor.

• Saving Clause — Under Section 21(a), Article II of the IRR of RA 9165, as adopted into the text of RA 10640, non-compliance with the chain of custody requirements under justifiable grounds shall not render void and invalid the seizure and custody over the items, provided the integrity and evidentiary value of the seized items are properly preserved by the apprehending officer/team. For the saving clause to apply, the prosecution must duly explain the reasons behind the procedural lapses, and 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. The saving clause did not apply in this case because the prosecution did not duly explain the deviation.

• Prosecution's Positive Duty — In People vs. Lim, the Court En Banc definitively held that the prosecution has the positive 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 where the quantity of the seized drugs is miniscule, since it is highly susceptible to planting, tampering, or alteration of evidence. The State retains this duty regardless of whether 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 the first time on appeal, or even not raised, become apparent upon further review.

• Place of Inventory and Photography — In People vs. Beran, the Court clarified that in seizures covered by search warrants, the physical inventory and photography must be conducted at the place where the search warrant was served; in 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. This rule, however, does not dispense with the requirement of immediate marking upon confiscation.

• "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." — This passage defines the nature and function of marking as the first and most crucial step in the chain of custody rule, and explains why it must be immediately undertaken.

• "Thus, in People v. Sanchez, the Court ruled that marking should be 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 passage states the canonical formulation of the immediate marking rule, which the Court found was violated in this case.

• "It should, however, be emphasized that for the saving clause to apply, the prosecution must duly explain the reasons behind the procedural lapses, 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." — This passage states the requisites for the application of the saving clause, which the Court found were not met in this case.

• "[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 the first time on appeal, or even not raised, become apparent upon further review." — This passage, quoted from People vs. Miranda, reiterates the State's positive duty to account for any lapses in the chain of custody regardless of whether the defense raises the issue in the proceedings a quo.

• People vs. Beran, 724 Phil. 788 (2014) — Cited for the rule on the place of physical inventory and photography: at the place where the search warrant was served for seizures covered by search warrants, and at the nearest police station or office of the apprehending officer/team for warrantless seizures such as buy-bust operations.
• People vs. Sanchez, 590 Phil. 214 (2008) — Cited for the rule that marking should be done in the presence of the apprehended violator immediately upon confiscation.
• People vs. Lim, G.R. No. 231989, September 4, 2018 — Cited for the holding that the prosecution has the positive duty to demonstrate observance with the chain of custody rule under Section 21 of RA 9165, as amended, and to acknowledge and justify any perceived deviations therefrom.
• People vs. Miranda, 824 Phil. 1042 (2018) — Cited for the reminder to prosecutors that the State retains the positive duty to account for any lapses in the chain of custody regardless of whether the defense raises the same in the proceedings a quo.
• People vs. Almorfe, 631 Phil. 51 (2010) — Cited for the rule that the prosecution must duly explain the reasons behind the procedural lapses for the saving clause to apply.
• People vs. De Guzman, 630 Phil. 637 (2010) — Cited for the rule 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.
• People vs. Ramirez, 823 Phil. 1215 (2018) — Cited for the rule that marking is the first and most crucial step in the chain of custody rule.
• People vs. Umipang, 686 Phil. 1024 (2012) — Cited for the rule that compliance with the chain of custody procedure is not merely a procedural technicality but a matter of substantive law.
• People vs. Segundo, 814 Phil. 697 (2017) — Cited for the rule that the law has been crafted by Congress as safety precautions to address potential police abuses, especially considering that the penalty imposed may be life imprisonment.

• Section 5, Article II, RA 9165 — Defines and penalizes the illegal sale of dangerous drugs. Pulgado was charged under this provision in Criminal Case No. 2016-996.
• Section 11, Article II, RA 9165 — Defines and penalizes the illegal possession of dangerous drugs. Pulgado was charged under this provision in Criminal Case No. 2016-997.
• Section 21, Article II, RA 9165 (as amended by RA 10640) — Establishes the chain of custody rule for seized drugs, requiring the marking, physical inventory, and photography of the seized items immediately after seizure and confiscation. The Court held that the prosecution failed to comply with the immediate marking requirement, and that this failure was not justified.
• Section 21(a), Article II, IRR of RA 9165 — Contains the saving clause: non-compliance with the chain of custody requirements under justifiable grounds, as long as the integrity and 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. The Court held that the saving clause did not apply because the prosecution failed to duly explain the deviation.
• Section 1, RA 10640 — Adopted the saving clause into the text of RA 9165: noncompliance with the requirements under justifiable grounds, as long as the integrity and evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures and custody over said items.

Hernando, Inting, Gaerlan, and Dimaampao, JJ., concur.