After a meticulous review and examination of the evidence on record, the Court finds merit in the appeal.
True, the trial court’s assessment of the credibility of witnesses and their testimonies, as a rule, is entitled to great weight and will not be disturbed on appeal. This rule, however, does not apply where it is shown that any fact of weight and substance has been overlooked, misapprehended or misapplied by the trial court.[16] The case at bar falls under the above exception and, hence, a deviation from the general rule is justified.
Jurisprudence has firmly entrenched that in the prosecution for illegal sale of dangerous drugs, the following essential elements must be proven: (1) that the transaction or sale took place; (2) the corpus delicti or the illicit drug was presented as evidence; and (3) that the buyer and seller were identified.[17] Implicit in all these is the need for proof that the transaction or sale actually took place, coupled with the presentation in court of the confiscated prohibited or regulated drug as evidence.
An assiduous evaluation of the evidence on record in its totality exposes flaws in the prosecution evidence which raises doubt as to its claim of an entrapment operation.Not all the elements necessary for the conviction of Salcena for illegal sale of shabu were clearly established in this case.
A buy-bust operation is a form of entrapment, which in recent years has been accepted as valid and effective mode of arresting violators of the Dangerous Drugs Law.[18] It has been proven to be an effective way of unveiling the identities of drug dealers and of luring them out of obscurity.[19] To determine whether there was a valid entrapment or whether proper procedures were undertaken in effecting the buy-bust operation, it is incumbent upon the courts to make sure that the details of the operation are clearly and adequately established through relevant, material and competent evidence. The courts cannot merely rely on, but must apply with studied restraint, the presumption of regularity in the performance of official duty by law enforcement agents. Courts are duty-bound to exercise extra vigilance in trying drug cases and should not allow themselves to be used as instruments of abuse and injustice lest innocent persons are made to suffer the unusually severe penalties for drug offenses.[20]
The prosecution seeks to prove the entrapment operation through the testimonies of barangay tanods Catubay and Esguerra. Accordingly, the innocence or culpability of Salcena hinges on the issue of their credibility. In determining the credibility of prosecuting witnesses regarding the conduct of a legitimate buy-bust operation, the “objective” test as laid down in People v. De Guzman[21] is utilized. Thus:
We therefore stress that the “objective” test in buy-bust operation demands that the details of the purported transaction must be clearly and adequately shown. This must start from the initial contact between the poseur-buyer and the pusher, the offer for purchase, the promise or payment of the consideration until the consummation of the sale by the delivery of the illegal drug subject of the sale. The manner by which the initial contact was made, whether or not through an informant, the offer to purchase the drug, the payment of the “buy-bust” money, and the delivery of the illegal drug, whether to the informant alone or the police officer, must be the subject of strict scrutiny by courts to insure that law-abiding citizens are not unlawfully induced to commit an offense.
Applying this “objective” test, the Court is of the considered view that the prosecution failed to present a complete picture of the buy-bust operation highlighted by the disharmony and inconsistencies in its evidence. The Court finds loose ends in the prosecution evidence, unsupported by coherent and rational amplification.
First, there are marked discrepancies between the Joint Affidavit of Arrest[22] dated
Catubay’s testimony, however, was in stark contrast to the above declaration. Thus:
Fiscal Gibson Araula
(On Direct Examination)
Q: Mr. Witness, do you remember where were you in the morning of
A: I was at the Barangay Hall
Q: What barangay is that?
A: Barangay
xxx
Q: How about in the afternoon of May 19?
A: In the afternoon the informant arrived at the barangay office.
Q: Can you tell this Honorable Court what information that informant relayed to your office?
A: According to the informant “si Garet raw po ipapaano roon, nagbebenta.”
Q: What do you mean by “Nagbebenta”?
A: “Nagbebenta ng droga.”
Q: Who received that information?
A: I and my colleague BSDO by the name of Elmer Esguerra.
xxx
Q: What was the action taken by you and your companion with respect to that information?
A: We went to the place pointed out by the informant somewhere near
Q: What time was that?
A: About
Q: Who were with you when you went there?
A: Elmer and I, sir.[23]
[Emphases supplied]
During cross-examination, Catubay maintained that he and Esguerra (not the barangay chairman) were the ones informed by the CI about the drug pushing activities of Salcena in the afternoon (not 8:00 o’clock in the morning) of May 19, 2005 and that they were the only ones who went to the place named by the CI for the conduct of the alleged buy-bust operation without the aid and support of any police operative.
Atty. Concepcion
(Cross-examination)
Q: YOU SAID ON
A: Yes sir.
Q: You and Elmer proceeded to the place where that confidential informant was telling this Garet is selling shabu, mr. witness?
A: Yes sir.
Q: With no other companion, no police officer, you conducted the buy bust operation, mr. witness?
A: Yes sir.
xxx
Q: When you decided, you and Elmer decided to conduct the buy bust operation, what preparation did you made, mr. witness?
A: We have a briefing sir.
Q: Can you tell us what the briefing all about between you and Elmer, mr. witness?
A: Ako ang bibili at siya ang huhuli po.[24]
[Emphases supplied]
What then happened to the entrapment team which was supposedly formed for the purpose of arresting Salcena red-handedly, and whose members were individually named and enumerated in the Pre-Operation Report[25] (Exh. “H”)? They seemed to have suddenly vanished into thin air when the operation was about to be set into motion. Was an entrapment team really organized?
Second, Catubay and Esguerra made it appear in their joint affidavit that it was the CI who had access to Salcena and who was tasked by the latter to look for prospective buyers and to arrange for the sale and delivery of the shabu. While at the witness stand, however, these two barangay tanods claimed that they directly approached Salcena and bought shabu from her without the intervention and participation of the CI. Should it not have been the CI, who was the conduit to the pusher, who should have arranged for such a meeting?
The Court finds it hard to believe that these two barangay tanods were able to pick the propitious time to be in front of the Palamigan store, Barangay San Antonio, to consummate the alleged sale with Salcena who conveniently appeared thereat. It must be stressed that neither Catubay nor Esguerra testified that the CI arranged the time of the meeting with the alleged drug pusher and, yet, they astoundingly guessed the time that Salcena would turn up on the scene.
Third, another slant that nags the mind of the Court is the confused narration of prosecution witness Catubay anent how the sale occurred. The Court finds it hard to believe the testimony of Catubay on the transaction he had with Salcena:
Fiscal Araula:
(On Direct Examination)
Q: When you arrived at that place what happened there?
A: I myself was intending to buy from Garet.
Q: Where?
A: “Sa harap ng palamigan doon sa No. 32 yata.”
Q: Where you able to talk to that person at that time?
A: I did not, I was not able to talk to her.
Q: You were not able to talk to her at that time?
A: Yes, sir.
xxx
Q: When the two of you were not able to talk to Garet, what did you do, if any?
A: I was intending to buy shabu.
Q: To whom?
A: Garet and I did not talk to each other since I was buying shabu “nagkaabutan lang ho kami.”
xxx
Q: In other words you were able to talk to Garet?
Court:
“Abutan lang daw, walang usapan.”
xxx
Q: How about the money you mentioned between the two of you that person you mentioned Garet, what is the first, the money you gave to Garet or Garet gave you the shabu?
A: Garet first gave the shabu and I gave her the money.
Q: Now when you said that you received the shabu in exchange to (sic) P100.00 bill, what did you do after?
A: After I got the shabu we immediately arrested Garet.[26]
xxx
Q: Now, you said that you arrested Garet at that time, how about your c0-BSDO officer, where was he?
A: In my right side.[27]
[Emphases Supplied]
Not even the barest conversation took place between the poseur-buyer and the alleged drug peddler. Catubay, along with Esguerra, approached Salcena and then the latter instantly handed over to him a small heat-sealed transparent plastic containing suspected shabu. In turn, Catubay gave Salcena a ₱100.00 bill. Thereafter, the barangay tanod arrested Salcena. The situation was simply ludicrous.
The Court is not unaware that drug transactions are usually conducted stealthily and covertly and, hence, the parties usually employed the “kaliwaan system” or the simultaneous exchange of money for the drugs. Still, it baffles the mind how Salcena knew exactly who between Catubay and Esguerra would buy shabu, and how much would be the subject of the transaction despite the absence of an offer to purchase shabu, through words, signs or gestures, made by either of the two tanods. Evidence to be believed must not only proceed from the mouth of a credible witness but it must also be credible in itself such that common experience and observation of mankind lead to the inference of its probability under the circumstances.[28] Catubay’s story of silent negotiation is just not credible. It simply does not conform to the natural course of things.
Fourth, equally damaging to the cause of the prosecution is the confusion that marks its evidence as to who confiscated the buy-bust money and from whom it was seized. It was stated in both the Investigation Report[29] submitted by P/Supt. Ratuita and the Joint Affidavit of Arrest that it was Esguerra who confiscated the buy-bust money from the right palm of Armas because, allegedly, immediately after receiving the ₱100.00 bill, Salcena passed the money to Armas. Catubay, however, claimed that he recovered the buy-bust money from Salcena herself.
Q: Likewise when you arrested Garet where was the buy-bust money, the₱100.00 bill?
A: I also got the money from Garet.
Q: Where in particular, what part of her body?
A: Right pants pocket of her “pantalon”.
Court:
You mean to say you put your hand inside her pocket?
A: Yes, your Honor.[30]
The foregoing conflicting narrations and improbabilities, seemingly trivial when viewed in isolation, cast serious doubt on the credibility of the prosecution witnesses when considered together. Unfortunately, they were glossed over by the RTC and the CA invoking the presumption that barangay tanod Catubay and Esguerra were in the regular performance of their bounden duties at the time of the incident. It should be stressed, however, that while the court is mindful that the law enforcers enjoy the presumption of regularity in the performance of their duties, this presumption cannot prevail over the constitutional right of the accused to be presumed innocent and it cannot, by itself, constitute proof of guilt beyond reasonable doubt.[31] The attendant circumstances negate the presumption accorded to these prosecution witnesses.
Viewed vis-à-vis the peculiar factual milieu of this case, it is pertinent to mention the ruling in the case of People v. Angelito Tan[32] that courts are mandated to put the prosecution evidence through the crucible of a “severe testing” and that the presumption of innocence requires them to take a more than casual consideration of every circumstance or doubt favoring the innocence of the accused. In the case at bench, the prosecution evidence, when placed under “severe testing,” does not prove with moral certainty that a legitimate buy-bust operation was conducted against Salcena.
Moreover, the Court finds the prosecution fatally remiss in establishing an unbroken link in the chain of custody of the allegedly seized shabu. Thus, doubt is engendered on whether the object evidence subjected to laboratory examination and offered in court is the same as that allegedly sold by Salcena.
Proof beyond reasonable doubt demands that unwavering exactitude be observed in establishing the corpus delicti – the body of the crime whose core is the confiscated illicit drug.[33] Hence, every fact necessary to constitute the crime must be established. The chain of custody requirement performs this function in that it ensures that unnecessary doubts concerning the identity of the evidence are removed.[34]
In People v. Kamad,[35] the Court enumerated the links that the prosecution must establish in the chain of custody in a buy-bust situation to be as follows: first, the seizure and marking, if practicable, of the illegal drug recovered from the accused by the apprehending officer; second, the turnover of the illegal drug seized by the apprehending officer to the investigating officer; third, the turnover by the investigating officer of the illegal drug to the forensic chemist for laboratory examination; and fourth, the turnover and submission of the marked illegal drug seized from the forensic chemist to the court.
These links in the chain of custody were not adequately established by the testimonies of the prosecution witnesses and the documentary records of the case. It is significant to note that the testimonies of poseur-buyer Catubay and his back-up, Esguerra, lack specifics on the post-seizure custody and handling of the subject narcotic substance. Although Catubay testified that he seized the small plastic sachet containing the suspected shabu from Salcena and brought it to the BSDO office, he never disclosed the identity of the person/s who had control and possession of the shabu at the time of its transportation to the police station. Neither did he claim that he retained possession until it reached the police station.
Furthermore, the prosecution failed to supply vital details as to who marked the sachet, where and how the same was done, and who witnessed the marking. In People v. Martinez,[36] the Court ruled that the "marking" of the seized items, to truly ensure that they were the same items that enter the chain and were eventually the ones offered in evidence, should be done (1) in the presence of the apprehended violator; and (2) immediately upon confiscation – in order to protect innocent persons from dubious and concocted searches and to shield the apprehending officers as well from harassment suits based on planting of evidence and on allegations of robbery or theft.
Records show that both the RTC and the CA agreed in holding that it was Catubay who marked the plastic sachet containing the subject shabu. The RTC wrote:
x x x. In passing, the court is satisfied that the plastic sachet at bench was properly identified. Tanod Esguerra said he saw Tanod Catubay put markings thereon and remembers the letters “RC” which letters appear on the sachet. Tanod Catubay recalls that he marked the sachet but could not remember if it is “RC” or “GV.”[37]
Excerpts from the assailed CA Decision on this score is hereto quoted, to wit:
xxx. Esguerra remembered that Catubay marked the plastic sachet with the initials “RC” and Catubay, on the other hand, cannot remember if the markings he made is “GB” or “RC.”[38]
xxx. In the instant case, it was shown to the satisfaction of the Court that when the sale transaction was consummated, the shabu was first handed-over to the poseur-buyer, who placed the necessary markings in the confiscated items.[39]
A perusal of the pertinent Transcript of Stenographic Notes, however, shows that these observations are not reflected. Contrary to the findings of the RTC and CA, there is nothing on record that Esguerra made a categorical declaration that he saw Catubay put the marking “RC” on the plastic sachet. All that he testified to was that he could identify the subject shabu because it had the marking “RC.”[40] Neither was there any statement from Catubay that he placed markings on the plastic sachet of shabu right after seizing it from Salcena. In fact, Catubay claimed that he could not remember whether the marking was “RC” or “GV.” Thus:
Atty. Concepcion:
(On Cross- Examination)
Q: You identified the buy bust money because of the initial GB, am I correct to say that, Mr. witness?
A: I could not recall if it is RC or G[V] sir.
Q: Why can’t you remember, RC or G[V], what is the relation, Mr. witness?
A: RC refers to Ronnie Catubay sir.
Q: G[V]?
A: I don’t know what it means sir. [41]
Verily, the records of the case do not provide for the identity of the officer who placed the marking “RC GVS
It is likewise noteworthy that the prosecution evidence is wanting as to the identity of the police investigator to whom the buy-bust team turned over the seized item; as to the identity of the person who submitted the specimen to the Philippine National Police(PNP) Crime Laboratory; as to whether the forensic chemist whose name appeared in the chemistry report was the one who received the subject shabu when it was forwarded to the crime laboratory; and as to who exercised custody and possession of the specimen after the chemical examination and before it was offered in court. Further, no evidence was adduced showing how the seized shabu was handled, stored and safeguarded pending its offer as evidence in court.
While a perfect chain of custody is almost always impossible to achieve, an unbroken chain becomes indispensable and essential in the prosecution of drug cases owing to its susceptibility to alteration, tampering, contamination and even substitution and exchange.[42] Accordingly, each and every link in the custody must be accounted for, from the time the shabu was retrieved from Salcena during the buy-bust operation to its submission to the forensic chemist until its presentation before the RTC. In the case at bench, the prosecution failed to do so.
Lastly, the subject 0.04 gram of shabu was never identified by the witnesses in court. Neither BSDO Catubay nor BSDO Esguerra was confronted with the subject shabu for proper identification and observation of the uniqueness of the subject narcotic substance when they were called to the witness stand because at that time, the subject shabu was still in the possession of the forensic chemist as manifested by Assistant City Prosecutor Gibson Araula, Jr.[43] They were not given an opportunity to testify either as to the condition of the item in the interim that the evidence was in their possession and control. Said flaw militates against the prosecution’s cause because it not only casts doubt on the identity of the corpus delicti but also tends to discredit, if not negate, the claim of regularity in the conduct of the entrapment operation. The records bare the following:
Fiscal Gibson Araula
(On Direct Examination)
Q: If the transparent plastic sachet is shown to you, can you identify that transparent plastic sachet?
A: Yes, sir. That is the one we got from her so we can remember it.
Q: Other than that you mentioned the one that you recovered, you cannot identify the shabu other than what you mentioned now?
A: “Makikilala po.”
Q: How will you know that that is the shabu?
A: I knew it “yun ang nahuli naming.”
Fiscal Araula:
By the way your Honor the shabu was in possession of the chemist. I’m going to reserve the right to identify the shabu, your Honor.
Court:
Okay, granted.[44]
x x x.
Esguerra testified on this matter, as follows:
Q: The two accused were arrested at that time. What happened after that?
A: We brought them to
Q: You said you were able to turn over the shabu and the money. Can you identify that shabu and the money?
A: Yes, sir.
Q: Why?
A: Because it has a marking, sir.
Q: What was the marking there that your companion was able to buy shabu from Garet at that time, what marking was placed?
A: “RC”
Q: How about the money?
A: “RC din po sir.”
Fiscal Araula: Your Honor, may we reserve the right to present the transparent plastic sachet?
Court: Okay, granted.[45]
Despite the reservation of the right, the prosecution never presented the transparent plastic sachet for identification by the two barangay tanods.
In view of the loopholes in the prosecution evidence as well as the gaps in the chain of custody, there is no assurance that the identity and integrity of the subject narcotic substance has not been compromised. In Catuiran v. People,[46] the Court held that the failure of the prosecution to offer the testimony of key witnesses to establish a sufficiently complete chain of custody of a specimen of shabu, and the irregularity which characterized the handling of the evidence before the same was finally offered in court, fatally conflicted with every proposition relative to the culpability of the accused.
The Constitution mandates that an accused shall be presumed innocent until the contrary is proved. Concededly, the evidence for the defense is weak and uncorroborated and could even engender belief that Salcena indeed perpetrated the crime charged. This, however, does not advance the cause of the prosecution because its evidence must stand or fall on its own weight and cannot be allowed to draw strength from the weakness of the defense.[47] The prosecution has the burden to overcome the presumption of innocence and prove the guilt of an accused beyond reasonable doubt.
In the light of the failure of the prosecution evidence to pass the test of moral certainty, a reversal of Salcena’s judgment of conviction becomes inevitable. Suffice it to say, a slightest doubt should be resolved in favor of the accused.[48] In dubio pro reo.[49]