People vs. Asislo

Non-compliance with the Section 21 inventory and marking requirements of R.A. No. 9165 does not render the seized drugs inadmissible where the prosecution proves that the integrity and evidentiary value of the drugs were preserved; and an accused may be convicted under Section 5 for illegal delivery and transportation even if the sale was not consummated for lack of consideration.

Juan Asislo y Matio was a farmer and broom maker, and his co-accused were Jose Astudillo and Samuel Pal-iwen, in a prosecution under R.A. No. 9165, the Comprehensive Dangerous Drugs Act of 2002, which penalizes under Article II, Section 5 the sale, delivery, and transportation of dangerous drugs.

In the second week of April 2008, the PDEA-CAR Office received intelligence information from PDEA-La Union about the proliferation and distribution of marijuana in La Union, including a report that Juan Asislo had delivered a huge volume of marijuana in Baguio City to an unidentified buyer sometime in the first week of April 2008. Regional Director PCI Edgar S. Apalla directed IAl Ferdinand Natividad to coordinate with PDEA-La Union to build a case against Asislo. In the third week of April 2008, the confidential informant “Jojo” arrived at the PDEA-CAR Office in Baguio City and introduced himself; Natividad instructed him to continue dealing with Asislo and to report developments. On April 28, 2008, Jojo reported that he met Asislo and unidentified companions, and Asislo asked him to look for a buyer of 300 kilos of marijuana in exchange for a commission; Natividad ordered Jojo to inform Asislo that a buyer from Manila was interested in purchasing 200 kilos.

On May 2, 2008, Jojo reported that Asislo disclosed the prevailing price of marijuana was P1,500.00 per kilo. Per Natividad’s instruction, Jojo apprised Asislo that the Manila buyer willing to buy 200 kilos would be in Baguio for a vacation. In a phone call, Asislo insisted on talking with the buyer; Natividad spoke with him and reiterated his interest to buy 200 kilos of dried marijuana leaves. Asislo told him he only had around 100 kilos, and Natividad settled with Asislo and asked him to wait for his call for the delivery. On May 8, 2008, Asislo called Natividad that they were prepared to deliver about 110 kilos of marijuana on May 13, 2008. Upon learning of the negotiations, PCI Apalla formed an entrapment team composed of Natividad as poseur-buyer, SPO4 Romeo Abordo as team leader, and SPO2 Cabily Agbayani and SPO1 Emerson Lingbawan as back-up team and arresting officers. In the evening of May 12, 2008, they agreed to have the transaction within the vicinity of Dontogan, Green Valley, Baguio City, near a “car wash” area between 7 o’clock and 8 o’clock in the morning on May 13, 2008.

Around 5 o’clock in the morning on May 13, 2008, the entrapment and arresting team proceeded to the area. Asislo related to Natividad that he was with four other individuals on board a dark blue Kia Besta van with plate number XFC 682. At 7:30 in the morning, the Besta van stopped about 30 meters from the agreed place. Two men alighted and approached Natividad; one was Jojo, who introduced the other as Asislo. Natividad asked Asislo to see the marijuana before he paid. Asislo ordered the van’s driver, Jose Astudillo, to open the compartment. Natividad saw five sacks and a plastic bag. Asislo asked his other companion, Samuel Pal-iwen, to help him pull out one sack and opened it in front of Natividad; the sack was loaded with bricks of marijuana. Natividad removed his ball cap, their pre-arranged signal, and held Asislo in a tight embrace. He removed his service firearm and introduced himself as a PDEA agent. The back-up team rushed to the scene and arrested the other accused. SPO2 Agbayani recited to Asislo and his companions their constitutional rights. SPO1 Lingbawan searched the van and found four sacks containing bricks of marijuana and a plastic bag with two pieces of tube type of marijuana leaves inside. SPO4 Abordo seized Asislo’s cell phone. The van used in transporting the marijuana was impounded at the PDEA-CAR Office.

Because of the volume of the confiscated dangerous drugs, the team brought the sacks of marijuana to the PDEA-CAR Field Office for proper markings and documentation. After the seizure and arrest, IAl Natividad called PCI Apalla through mobile phone and reported the operation; due to the volume of the drugs, PCI Apalla ordered Natividad and his companions to bring the sacks to their field office for proper markings and documentation. Thereafter, Natividad, SPO2 Agbayani, and SPO1 Lingbawan rode the Besta van with Asislo, Pal-iwen, and Astudillo; Natividad stayed at the back of the van beside the confiscated drugs. Upon reaching the office, they placed the three accused in jail and unloaded the five sacks and the plastic bag. Natividad marked each of the sacks and on top of each brick with “Exhibit A,” his initials “FTN,” his signature, and the date “5-13-08.” After the marking, the sacks were stored in their stockroom, which Natividad locked. He then prepared the documents such as the inventory of the items and the request for physical examination. In the afternoon of the same day, the authorities conducted an inventory of the seized drugs and photographed the same while witnessed by the assistant city prosecutor, an elected official, and a member of the media. PCI Apalla requested the physical examination of the three accused and the laboratory examination of the drugs. The confiscated items were then turned over to the evidence custodian, who brought the same, together with the three accused, to Camp Dangwa for examination. The PNP Regional Crime Laboratory received the seized items at 4:30 in the afternoon of the same day. After examination, the submitted items tested positive for the presence of marijuana, as reflected in Chemistry Report No. D-023-2008 prepared by Forensic Chemical Officer Edward Gayados. The items were then submitted to the RTC for safekeeping. Subsequently, Natividad identified in court the marked items as the ones he seized from Asislo during the operation. The RTC’s factual findings adopted the prosecution’s account of the entrapment, seizure, marking, inventory, and laboratory examination.

According to the defense, at about 4 o’clock in the afternoon on May 11, 2008, Astudillo, after a day’s work driving a passenger jeepney, was watching a billiards game inside a building at the jeepney station at Sasaba, Santol, La Union. The store where Asislo and Pal-iwen worked as broom makers was also in the same building. Around that time, Astudillo saw Jojo conversing with Asislo. While busy making brooms, Pal-iwen was nearby and within hearing distance. Astudillo heard Jojo inquiring about anyone who leases a closed vehicle for transportation of brooms and bananas. Asislo suggested one Jimmy Tad-o. He accompanied Asislo and Jojo when they proceeded to Tad-o’s place. After reaching an agreement, Tad-o asked Astudillo to travel with Asislo and to return the vehicle at Sasaba. Around 1 o’clock in the morning on May 13, 2008, Pal-iwen saw Jojo and some companions load brooms and sacks in the van. With Pal-iwen and Asislo, Jojo drove the van bound for Baguio City. Jojo unloaded the brooms and bananas at the San Fernando City Market. Then, Astudillo showed up after Asislo called him on the cell phone. Astudillo then drove the van to Dontogan, Green Valley, Baguio City. Upon arrival, Asislo and Jojo alighted from the van and proceeded to the construction site of Asislo’s uncle for coffee. The PDEA agents suddenly arrived and arrested them. They were brought to the PDEA-CAR Office at Melvin Jones, Burnham Park, Baguio City where they were accused of delivering marijuana.

• Chain of Custody: Asislo argued that the prosecution failed to establish an unbroken link in the chain of custody, because the PDEA agents did not comply with Section 21 of R.A. No. 9165 and there was a lapse of time from the seizure of the illicit drugs to the marking and inventory.
• Marking by One Officer: Asislo maintained that the fact that it was only Natividad who marked the confiscated drugs cast a shadow of doubt on the authenticity of the evidence presented before the court.
• Guilt Beyond Reasonable Doubt: Asislo argued that the RTC erred in convicting him due to the lapses in the chain of custody and the failure of the prosecution to establish his guilt beyond reasonable doubt.

• Chain of Custody: Whether the prosecution established an unbroken chain of custody over the seized marijuana despite the alleged non-compliance with Section 21 of R.A. No. 9165, particularly the lapse of time before marking and inventory and the fact that only Natividad marked the drugs.
• Illegal Delivery and Transportation: Whether Asislo may be convicted under Article II, Section 5 of R.A. No. 9165 for illegal delivery and transportation of marijuana even though the sale was not consummated because no marked money or consideration was received.

• Chain of Custody: No. Non-compliance with Section 21 of R.A. No. 9165 and its IRR is not fatal where the prosecution preserves the integrity and evidentiary value of the seized drugs; the SC found the chain unbroken.
• Illegal Delivery and Transportation: Yes. Although the sale was not consummated because no consideration or marked money was received, Asislo was validly convicted under Article II, Section 5 of R.A. No. 9165 for illegal delivery and transportation of 110 kilograms of marijuana.

• Chain of Custody: Section 21(1), Article II of R.A. No. 9165 requires the apprehending team to physically inventory and photograph the seized drugs immediately after seizure and confiscation in the presence of the accused or his representative or counsel, a representative from the media and the DOJ, and any elected public official. Section 21(a) of the IRR provides that non-compliance with these requirements under justifiable grounds, as long as the integrity and evidentiary value of the seized items are properly preserved, shall not render void and invalid such seizures and custody. The SC has held that while the chain of custody should ideally be perfect, in reality it is almost always impossible to obtain an unbroken chain; the most important factor is the preservation of the integrity and evidential value of the seized items. The prosecution must establish with moral certainty that the specimen submitted to the crime laboratory and found positive for dangerous drugs, and finally introduced in evidence against the accused, was the same illegal drug confiscated from him. Here, although the drugs were not marked immediately after seizure and not in the presence of the accused, the prosecution proved that the bricks of marijuana contained in five sacks and a plastic bag confiscated during the buy-bust operation were the same items presented and identified before the court. After the seizure, Natividad reported the operation to PCI Apalla; due to the volume of the drugs, Apalla ordered the team to bring the sacks to their field office for proper markings and documentation. Natividad stayed at the back of the van beside the confiscated drugs. Upon reaching the office, Natividad marked each of the sacks and on top of each brick with “Exhibit A,” his initials “FTN,” his signature, and the date “5-13-08.” The sacks were stored in their stockroom, which Natividad locked. In the afternoon, the authorities conducted an inventory and photographed the seized drugs while witnessed by the assistant city prosecutor, an elected official, and a member of the media. The items were turned over to the evidence custodian and brought to Camp Dangwa, where the PNP Regional Crime Laboratory received them at 4:30 in the afternoon. Chemistry Report No. D-023-2008 prepared by Forensic Chemical Officer Edward Gayados showed that the items tested positive for marijuana. The items were submitted to the RTC for safekeeping, and Natividad identified in court the marked items as those he seized from Asislo. Although it was not specified who received the items in the laboratory, the minute details of the seized items described in the chemistry report coincide with the specifications in the inventory prepared by the PDEA, leaving no doubt that the bricks of marijuana received by the laboratory were the same drugs seized from Asislo. The SC thus found that the RTC and CA aptly held that the requirements under R.A. No. 9165 had been sufficiently complied with and that the prosecution established an unbroken chain of custody.
• Illegal Delivery and Transportation: Article II, Section 5 of R.A. No. 9165 penalizes any person who, unless authorized by law, shall sell, trade, administer, dispense, deliver, give away to another, distribute, dispatch in transit, or transport any dangerous drug. Article I, Section 3(k) defines “deliver” as any act of knowingly passing a dangerous drug to another, personally or otherwise, and by any means, with or without consideration; Section 3(ii) defines “sell” as any act of giving away any dangerous drug whether for money or any other consideration. In illegal sale of dangerous drugs, the delivery of the illicit drug to the poseur-buyer and the receipt by the seller of the marked money consummate the illegal transaction. Here, the sale was not consummated since there was no receipt of consideration. Natividad arrested Asislo immediately after the latter opened one of the sacks loaded with bricks of marijuana, and the agents did not prepare marked money for the buy-bust operation. Nevertheless, Asislo can still be liable under Article II, Section 5 of R.A. No. 9165 for illegal delivery and transportation of marijuana. The essential element of illegal transportation of dangerous drugs is the movement of the dangerous drug from one place to another. As defined in People vs. Mariacos, “transport” means “to carry or convey from one place to another.” There is no definitive moment when an accused “transports” a prohibited drug; when the circumstances establish the purpose of an accused to transport and the fact of transportation itself, there should be no question as to the perpetration of the criminal act. The fact that there is actual conveyance suffices to support a finding that the act of transporting was committed. In this case, Asislo was found in possession of the sacks containing marijuana and was arrested while in the act of delivering or transporting such illegal drugs to Natividad, the poseur-buyer, at the agreed place in Dontogan, Green Valley, Baguio City, near a “car wash.” It is undisputed that Asislo, a farmer and broom maker at the time of his arrest, had no authority under the law to deliver marijuana. The circumstances establish that the crime of illegal transportation of dangerous drugs was committed: there was a prior unlawful arrangement between Natividad and Asislo that the former would buy marijuana from the latter; there was a designated place of delivery and a specified time frame on May 13, 2008 between 7 o’clock and 8 o’clock in the morning, limited to a particular person whom Natividad had transacted with through cell phone; Asislo leased the van for P2,000.00 from Tad-o for transportation from Santol, La Union to Baguio City; Asislo was apprehended on the street immediately after he opened the sack loaded with blocks of marijuana and while he was in the act of delivering the drugs to Natividad; and the agents found a substantial volume of marijuana loaded at the back of the leased vehicle. Asislo’s denial deserves scant consideration. His claim that it was the informant Jojo who leased the van to transport bananas and brooms was belied by the owner himself in his motion to recover the vehicle wherein he alleged that it was Asislo who hired the van from him. Furthermore, when Natividad approached Asislo, was introduced by Jojo as the buyer of marijuana, and asked where his order was, Asislo immediately understood who Natividad was and what he meant about the order. People vs. Hoble held that possession of prohibited drugs, coupled with the fact that the possessor is not a user thereof, cannot indicate anything else but the intention to sell, distribute or deliver the prohibited stuff; People vs. Claudio considered three plastic bags of marijuana leaves and seeds as a considerable quantity of drugs, such that possession of a similar amount and the fact that the accused is not a user clearly demonstrates intent to sell, distribute and deliver. Asislo was found in possession of 110 kilograms of dried marijuana leaves contained in five sacks and a plastic bag, and his drug test yielded a negative result, strongly indicating his intention to sell, distribute, deliver, or transport the marijuana. As to the penalty, Article II, Section 5 of R.A. No. 9165 prescribes life imprisonment to death and a fine ranging from P500,000.00 to P10,000,000.00; thus, Asislo was sentenced to life imprisonment and ordered to pay a fine of P1,000,000.00.

• Chain of Custody in Dangerous Drugs Cases — The chain of custody need not be perfect; non-compliance with Section 21 of R.A. No. 9165 and its IRR is not fatal if the prosecution preserves the integrity and evidentiary value of the seized drugs. The SC applied this where marking was delayed and done only by Natividad, but the drugs were marked, inventoried, photographed, stored, turned over, and identified in court with matching details.
• Illegal Sale vs. Illegal Delivery and Transportation — Illegal sale is consummated by delivery of the illicit drug to the poseur-buyer and receipt by the seller of marked money. Even without a consummated sale, an accused may be convicted under Section 5 for illegal delivery and transportation where the evidence shows the movement of the dangerous drug from one place to another. The SC applied this because no marked money was prepared, but Asislo transported 110 kilograms of marijuana to the agreed place.
• Transport of Dangerous Drugs — The essential element is movement of the dangerous drug from one place to another; “transport” means to carry or convey from one place to another. There is no definitive moment; the purpose and fact of transportation, or actual conveyance, suffice. The SC applied this to Asislo’s act of bringing the marijuana in a leased van to Dontogan.
• Possession of Large Quantity by Non-User — Possession of prohibited drugs coupled with the fact that the possessor is not a user indicates intent to sell, distribute, or deliver. The SC applied this to Asislo’s possession of 110 kilograms of marijuana and negative drug test.

• “In many cases, this Court has held that "while the chain of custody should ideally be perfect, in reality it is not, as it is almost always impossible to obtain an unbroken chain."" — The SC uses this to excuse strict perfection of the chain and to focus on preservation of the drugs’ integrity.
• "The most important factor is "the preservation of the integrity and the evidential value of the seized items as the same would be utilized in the determination of the guilt or innocence of the accused."" — This defines the controlling concern in chain-of-custody analysis.
• "In the crime of illegal sale of dangerous drugs, the delivery of the illicit drug to the poseur-buyer and the receipt by the seller of the marked money consummate the illegal transaction." — The SC uses this rule to hold that the sale was not consummated because no consideration or marked money was received.
• "The essential element of the charge of illegal transportation of dangerous drugs is the movement of the dangerous drug from one place to another." — This is the basis for convicting Asislo for illegal delivery and transportation despite the failed sale.

• People vs. Amy Dasigany Oliva, G.R. No. 206229, February 4, 2015 — Cited for the principle that the chain of custody need not be perfect and that an unbroken chain is almost always impossible to obtain.
• People vs. Efren Basal Cayas, G.R. No. 215714, August 12, 2015 — Cited for the rule that non-compliance with Section 21 is not fatal where the integrity and evidentiary value of the seized items are preserved; also for the consummation of illegal sale by delivery and receipt of marked money.
• People vs. Laba, G.R. No. 199938, January 28, 2013 — Cited for the essential element of illegal transportation: movement of the dangerous drug from one place to another.
• People vs. Mariacos, 635 Phil. 315 (2010) — Cited for the definition of “transport” as carrying or conveying from one place to another and for the rule that actual conveyance suffices.
• People vs. Hoble, G.R. No. 96091, July 22, 1992 — Cited for the rule that possession of prohibited drugs by a non-user indicates intent to sell, distribute, or deliver.
• People vs. Claudio, 243 Phil. 795 — Cited for the rule that possession of a considerable quantity of drugs by a non-user demonstrates intent to sell, distribute, and deliver.

• Article II, Section 5, R.A. No. 9165 — Penalizes the sale, trading, administration, dispensation, delivery, distribution, and transportation of dangerous drugs; prescribes life imprisonment to death and a fine ranging from P500,000.00 to P10,000,000.00. Applied to convict Asislo for illegal delivery and transportation and to impose life imprisonment and a P1,000,000.00 fine.
• Article I, Section 3(k) and (ii), R.A. No. 9165 — Defines “deliver” as knowingly passing a dangerous drug to another, personally or otherwise, by any means, with or without consideration; defines “sell” as giving away a dangerous drug whether for money or other consideration. Applied to distinguish sale from delivery and transportation.
• Article II, Section 21(1), R.A. No. 9165 — Requires immediate physical inventory and photograph of seized drugs in the presence of the accused or his representative or counsel, a media representative, a DOJ representative, and an elected public official. Applied: non-compliance was not fatal because the integrity and evidentiary value of the drugs were preserved.
• Section 21(a), IRR of R.A. No. 9165 — Requires inventory and photograph at the place of the search warrant or at the nearest police station or office in warrantless seizures; non-compliance under justifiable grounds is not fatal if the integrity and evidentiary value of the seized items are preserved. Applied to excuse the delayed marking and inventory.