People vs. Tumulak

The illegal sale of dangerous drugs is not consummated when the seller fails to deliver the illegal drug to the buyer; delivery of the drug to the poseur-buyer is essential to consummation of the sale. Where the accused merely showed a sample tablet and was arrested before delivering the remaining tablets, the crime committed is attempted sale of dangerous drugs, which is necessarily included in the crime of illegal sale of dangerous drugs.

The accused-appellant Minnie Tumulak y Cuenca was charged with illegal sale of dangerous drugs under Section 5 of R.A. No. 9165, the Comprehensive Dangerous Drugs Act of 2002, for allegedly selling thirty ecstasy tablets to a poseur-buyer in a buy-bust operation conducted by the Narcotics Division of the National Bureau of Investigation. The buy-bust operation was organized pursuant to a tip from a confidential informant who had arranged a sale of thirty ecstasy tablets. The prosecution's case rested on the testimony of Special Investigator Arthur R. Oliveros, the designated poseur-buyer, and the physical evidence of the confiscated drugs.

On July 31, 2002, a buy-bust operation was organized at the Narcotics Division of the National Bureau of Investigation pursuant to a tip given by a confidential informant, who had arranged a sale of thirty ecstasy tablets. Special Investigator Arthur R. Oliveros was designated as the poseur-buyer. The buy-bust team proceeded to Starbucks Coffee at Remedios Circle, Manila, where SI Oliveros was the only one who went inside to meet the confidential informant. Upon arriving, he saw the confidential informant sitting beside Minnie Tumulak y Cuenca and another female companion. When SI Oliveros approached their table, he was asked if he had brought the P60,000.00 to buy ecstasy. He showed the pre-marked P500-bill and the boodle money he pulled out from his pocket. Following this, Tumulak made a call and instructed SI Oliveros to proceed to Café Adriatico, and all four of them walked there together.

At Café Adriatico, Tumulak pulled out one ecstasy tablet and gave it to SI Oliveros for examination. SI Oliveros observed that the tablet was yellow with the mark "TP" on it. When SI Oliveros asked about the other twenty-nine tablets, Tumulak demanded that he give her the P60,000.00 first so she could count it inside the restroom. SI Oliveros complied and handed her a white envelope containing two pre-marked P500-bills and the boodle money. Tumulak then excused herself to go to the restroom. SI Oliveros followed her, together with his back-up, Special Investigator Ronald C. Abulencia. Before Tumulak could enter the restroom, the agents identified themselves as NBI operatives and arrested her. SI Oliveros inspected her bag and found all thirty pieces of ecstasy tablets equally distributed inside three separate transparent plastic sachets. SI Abulencia recovered the two pre-marked P500-bills from her. The buy-bust team then brought Tumulak to their office along with the confiscated items.

Tumulak narrated a different version of events. She claimed that before her arrest, she was working at Infinity KTV Club and Restaurant when she received a call from her friend Sarah, who was crying and asked to meet her at Café Adriatico. Upon arriving, Tumulak saw Sarah seated beside two male companions. Sarah kept saying "sorry, sorry, Mitch." Feeling uneasy, Tumulak went to the restroom. Before reaching it, one of Sarah's companions called her, showed his NBI ID, and said "sumama ka nalang samin." She was then dragged out of Café Adriatico and brought to the NBI office.

The RTC found Tumulak guilty beyond reasonable doubt, holding that the prosecution proved that the arrest resulted from a valid buy-bust operation and that the confiscated drugs identified in court were the same items found in her possession. The trial court did not give credence to her defense of denial and frame-up, noting that apart from her solitary testimony, she did not adduce any credible evidence, and that her denial could not prevail over the positive testimonies and physical evidence against her. The CA affirmed, holding that Tumulak's act of handing one tablet to SI Oliveros for examination and demanding payment was already tantamount to delivery and consummation of the sale, and that her failure to hand over the remaining twenty-nine tablets was immaterial.

• Noncompliance with Section 21: Tumulak contended that the prosecution failed to establish the integrity and identity of the seized drugs because the buy-bust team failed to comply with Section 21 of R.A. No. 9165, claiming that there was no physical inventory of the confiscated items, as well as any marking and photographing in the presence of selected public officials.

• Consummation of Sale: The prosecution argued that the sale transaction had taken place, pointing to Tumulak's act of handing one ecstasy tablet to SI Oliveros for examination and demanding the P60,000.00 before giving the remaining twenty-nine tablets, which the CA held was tantamount to delivery and consummation of the sale.
• Preservation of Integrity: The prosecution maintained that noncompliance with Section 21 of R.A. No. 9165 did not render the confiscated drugs inadmissible because the integrity and evidentiary value of the seized items were preserved from the moment they were seized up to the time they were presented in court.

• Consummation of Sale: Whether the illegal sale of dangerous drugs was consummated when the accused showed a sample tablet to the poseur-buyer but was arrested before delivering all thirty tablets.
• Chain of Custody: Whether the prosecution's failure to strictly comply with Section 21 of R.A. No. 9165 rendered the confiscated drugs inadmissible.

• Consummation of Sale: No. The illegal sale of dangerous drugs was not consummated because the element of delivery was missing; Tumulak never handed all thirty ecstasy tablets to the poseur-buyer. The offense committed was attempted sale of dangerous drugs, which is necessarily included in the crime of illegal sale of dangerous drugs under the rule on variance.
• Chain of Custody: No. The identity and evidentiary value of the confiscated drugs were preserved because SI Oliveros marked the seized items at the nearest police station, and the failure to conduct a physical inventory and photograph the items did not render them inadmissible as long as their integrity and evidentiary value were preserved.

• Consummation of Sale: The elements of illegal sale of dangerous drugs are: (1) proof that the transaction took place, and (2) the presentation in court of the corpus delicti or the illicit drug as evidence. To prove that a sale transaction took place, the following must be proved: (1) the identity of the buyer and the seller, the object and the consideration; and (2) the delivery of the thing sold and the payment. The commission of the offense of illegal sale of prohibited drugs requires merely the consummation of the selling transaction, which happens the moment the buyer receives the drug from the seller. What is important is that the poseur-buyer received the drug from the accused. In this case, SI Oliveros's testimony on direct and cross-examination showed that Tumulak only showed him one sample tablet, which was later placed back inside one of the sachets, and that all thirty tablets were recovered from her bag only after her arrest. The element of delivery was therefore missing. Under the rule on variance, while Tumulak could not be convicted of the offense of illegal sale because the sale was never consummated, she could be convicted for the attempt to sell as it is necessarily included in the illegal sale of dangerous drugs. 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. Tumulak intended to sell ecstasy and commenced by overt acts the commission of the intended crime by showing the substance to SI Oliveros, which reveals the intention to sell. The only reason the sale was aborted was because the police officers identified themselves and placed her under arrest — a cause other than her own spontaneous desistance.

• Chain of Custody: Proof beyond reasonable doubt must be observed in establishing the corpus delicti, whose core is the confiscated illicit drug. The chain of custody requirement under Section 21 of R.A. No. 9165 ensures that doubts concerning the identity of the drug are removed. As a rule, strict compliance with the prescribed procedure is required because of the illegal drug's unique characteristic that renders it indistinct, not readily identifiable, and easily open to tampering, alteration, or substitution. However, a testimony about a perfect chain is not always the standard as it is almost always impossible to obtain an unbroken chain; what is of utmost importance is the preservation of the integrity and evidentiary value of the seized items. The saving clause in the Implementing Rules and Regulations of R.A. 9165 applies only where the prosecution recognized the procedural lapses, explained the cited justifiable grounds, and established that the integrity and evidentiary value of the evidence seized had been preserved. In this case, SI Oliveros marked the three sachets containing the ecstasy tablets with "MCT-1," "MCT-2," and "MCT-3," which were then turned over to the NBI Forensic Chemistry Division for examination. The forensic analyst certified that the specimens tested positive for methylenedioxymethamphetamine. The failure to immediately mark the confiscated items at the place of arrest does not render them inadmissible; marking at the nearest police station or office of the apprehending team is sufficient compliance. The marking at the NBI office was excused considering that the place of arrest was relatively near the office, and that it was impractical to mark the confiscated items inside a restaurant with a lot of people.

• Consummation of illegal sale of dangerous drugs — The offense of illegal sale of dangerous drugs is consummated the moment the buyer receives the drug from the seller. Delivery of the drug to the poseur-buyer is essential; where the seller fails to deliver the drug, the sale is not consummated. In this case, the Court applied this doctrine to find that the accused's act of merely showing a sample tablet, without delivering all thirty tablets, did not consummate the sale.

• Attempted sale as necessarily included in illegal sale — Under the rule on variance, an accused may be convicted of an offense necessarily included in the offense charged. Attempted sale of dangerous drugs is necessarily included in the crime of illegal sale of dangerous drugs. 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.

• Chain of custody under Section 21 of R.A. No. 9165 — Strict compliance with the prescribed procedure under Section 21 is required because of the illegal drug's unique characteristic that renders it indistinct, not readily identifiable, and easily open to tampering, alteration, or substitution. However, the saving clause in the Implementing Rules and Regulations applies where the prosecution recognized the procedural lapses, explained the cited justifiable grounds, and established that the integrity and evidentiary value of the evidence seized had been preserved. Marking at the nearest police station or office of the apprehending team is sufficient compliance with the rules on chain of custody.

• "The illegal sale of dangerous drugs is not consummated when the seller fails to deliver the illegal drug to the buyer." — This states the core ratio decidendi of the case, establishing that delivery is an essential element for consummation of the illegal sale of dangerous drugs.

• "So long as the police officer went through the motion as a buyer and his offer was accepted by the seller and the drug was delivered to the police officer, the crime was consummated by the delivery of the goods." — This articulates the controlling rule on when the illegal sale of dangerous drugs is consummated, emphasizing the requirement of delivery to the poseur-buyer.

• "The offense of attempted sale is necessarily included in the crime of illegal sale of dangerous drugs." — This states the doctrinal basis for convicting the accused of attempted sale under the rule on variance, despite the charge being for consummated illegal sale.

• "What is of utmost importance is the preservation of the integrity and the evidentiary value of the seized items." — This articulates the standard for evaluating compliance with Section 21 of R.A. No. 9165, recognizing that a perfect chain is not always the standard.

• People vs. Dela Cruz, G.R. No. 205821, October 1, 2014, 737 SCRA 486 — Cited for the elements of illegal sale of dangerous drugs: proof that the transaction took place and presentation of the corpus delicti in court.
• People vs. Montevirgen, G.R. No. 189840, December 11, 2013, 712 SCRA 459 — Cited for the elements to prove that a sale transaction took place: identity of buyer and seller, object and consideration, and delivery of the thing sold and payment.
• People vs. Simon, G.R. No. 93028, July 29, 1994, 234 SCRA 555 — Cited for the rule that the commission of the offense of illegal sale of prohibited drugs requires merely the consummation of the selling transaction, which happens the moment the buyer receives the drug from the seller.
• People vs. Lakibul, G.R. No. 94337, January 27, 1993, 217 SCRA 575 — Cited for the rule that the crime is consummated by the delivery of the goods when the police officer went through the motion as a buyer and the drug was delivered to him.
• People vs. Adam, G.R. No. 143842, October 13, 2003, 459 SCRA 676 — Cited for the proposition that attempted sale is necessarily included in the crime of illegal sale of dangerous drugs.
• Asiatico vs. People, G.R. No. 195005, September 12, 2011, 657 SCRA 443 — Cited for the rule that a testimony about a perfect chain is not always the standard, and what is of utmost importance is the preservation of the integrity and evidentiary value of the seized items.
• Imson vs. People, G.R. No. 193003, July 13, 2011, 653 SCRA 826 — Cited for the rule that marking at the nearest police station or office of the apprehending team is sufficient compliance with the rules on chain of custody.
• People vs. Salvador, G.R. No. 190621, February 10, 2014, 715 SCRA 617 — Cited for the rule that failure to conduct a physical inventory and to photograph the items seized will not render the arrest illegal or the items inadmissible as long as the integrity and evidentiary value of the said items have been preserved.

• Section 5, R.A. No. 9165 — The provision defining and penalizing the illegal sale of dangerous drugs, under which the accused was originally charged and convicted.
• Section 26, R.A. No. 9165 — The provision under which the accused was ultimately convicted for attempted sale of dangerous drugs, in relation to Section 5.
• Section 21, R.A. No. 9165 — The provision prescribing the chain of custody requirements for seized drugs, including physical inventory, marking, and photographing in the presence of selected public officials; the Court applied the saving clause in the Implementing Rules and Regulations for noncompliance under justifiable grounds.
• Article 6, Revised Penal Code — The provision defining when a felony is attempted, requiring that the offender commences the commission of a felony directly by overt acts and does not perform all the acts of execution by reason of some cause or accident other than his own spontaneous desistance.
• Rule 120, Sections 4 and 5, Rules of Court — The rule on variance, allowing conviction for an offense necessarily included in the offense charged.

• Carpio, J. (Chairperson)
• Del Castillo, J.
• Mendoza, J.
• Leonen, J.