Asignación de puntajes a los análisis y variables

AND/OR LABORATORY EQUIPMENT UNDER SEC. 21 OF R.A.9165.

Sec. 21 of R.A. 9165 expressly provides that:

“The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner:

(1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof;

(2) Within twenty-four (24) hours upon confiscation/seizure of dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential

chemicals, as well as

instruments/paraphernalia and/or laboratory equipment, the same shall be submitted to the PDEA Forensic

29 Laboratory for a qualitative and

quantitative examination;

(3) A certification of the forensic laboratory examination results, which shall be done under oath by the forensic laboratory examiner, shall be issued within twenty-four (24) hours after the receipt of the subject item/s: Provided, That when the volume of the dangerous drugs, plant sources of dangerous drugs, and controlled precursors and essential chemicals does not allow the completion of testing within the time frame, a partial laboratory examination report shall be provisionally issued stating therein the quantities of dangerous drugs still to be examined by the forensic laboratory:

Provided, however, That a final certification shall be issued on the completed forensic laboratory examination on the same within the next twenty-four (24) hours;

(4) After the filing of the criminal case, the Court shall, within seventy-two (72) hours, conduct an ocular inspection of the confiscated, seized and/or surrendered dangerous drugs, plant sources of dangerous drugs, and controlled precursors and essential chemicals, including the instruments/paraphernalia and/or laboratory equipment, and through the PDEA shall within twenty-four (24) hours thereafter proceed with the destruction or burning of the same, in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the DOJ, civil society groups and any elected public official. The Board shall draw up the guidelines on the manner of proper disposition and destruction of such item/s which shall be borne by the offender: Provided, That those item/s of lawful commerce, as determined by the Board, shall be donated, used or recycled for legitimate purposes: Provided, further, That a representative sample, duly weighed and recorded is retained;

(5) The Board shall then issue a sworn certification as to the fact of destruction or burning of the subject item/s which, together with the representative sample/s in the custody of the PDEA, shall be submitted to the court having jurisdiction

over the case. In all instances, the representative sample/s shall be kept to a minimum quantity as determined by the Board;

(6) The alleged offender or his/her representative or counsel shall be allowed to personally observe all of the above proceedings and his/her presence shall not constitute an admission of guilt. In case the said offender or accused refuses or fails to appoint a representative after due notice in writing to the accused or his/her counsel within seventy-two (72) hours before the actual burning or destruction of the evidence in question, the Secretary of Justice shall appoint a member of the public attorney's office to represent the former;

(7) After the promulgation and judgment in the criminal case wherein the representative sample/s was presented as evidence in court, the trial prosecutor shall inform the Board of the final termination of the case and, in turn, shall request the court for leave to turn over the said representative sample/s to the PDEA for proper disposition and destruction within twenty-four (24) hours from receipt of the same; and

(8) Transitory Provision: a) Within twenty-four (24) hours from the effectivity of this Act, dangerous drugs defined herein which are presently in possession of law enforcement agencies shall, with leave of court, be burned or destroyed, in the presence of representatives of the Court, DOJ, Department of Health (DOH) and the accused/and or his/her counsel, and, b) Pending the organization of the PDEA, the custody, disposition, and burning or destruction of seized/surrendered dangerous drugs provided under this Section shall be implemented by the DOH.”

b. What does “CHAIN OF CUSTODY” mean?

“Chain of Custody” means the duly recorded authorized movements and custody of seized drugs or controlled chemicals or plant sources of dangerous drugs or laboratory equipment of each stage, from the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping to presentation in court for destruction. Such record of movements and custody of seized item shall include the

30 identity and signature of the person who

held temporary custody of the seized item, the date and time when such transfer of custody were made in the course of safekeeping and used in court as evidence, and the final disposition. People vs. Ruiz Garcia, G.R. No.173480 February 25, 2009 c. Is strict compliance with the prescribed procedure essential?

Yes. Section 21, paragraph 1, Article II of R.A. No. 9165 and Section 21(a), Article II of the Implementing Rules and Regulations (IRR) of RA No. 9165 give us the procedures that the apprehending team should observe in the handling of seized illegal drugs in order to preserve their identity and integrity as evidence. As indicated by their mandatory terms, strict compliance with the prescribed procedure is essential and the prosecution must show compliance in every case.

People vs. Alejandro, G.R. No. 176350, August 10, 2011

Strict compliance with the prescribed procedure is required because of the illegal drug’s unique characteristic rendering it indistinct, not readily identifiable, and easily open to tampering, alteration or substitution either by accident or otherwise. Hence, the rules on the measures to be observed during and after the seizure, during the custody and transfer of the drugs for examination, and at all times up to their presentation in court. The Court recognized the following links that must be established in the chain of custody in a buy-bust situation:

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. People vs. Kamad, G.R. No.

174198, January 19, 2010

d. Would non-compliance with the prescribed procedural requirements render the seizure void?

No. Mere lapses in procedures need not invalidate a seizure if the integrity and evidentiary value of the seized items can be shown to have been preserved.

As held in the case of People vs.

Alejandro, G.R. No. 176350, August 10, 2011, the Supreme Court pronounced that non-compliance with the prescribed procedural requirements does not necessarily render the seizure and custody of the items void and invalid; the seizure may still be held to be valid, provided that (a) there is a justifiableground for the non-compliance, and (b) the integrity and evidentiary value of the seized items are shown to have been properly preserved.

Further, in another case, the Court stressed that the failure on the part of the police officers to take photographs and make an inventory of the drugs seized from the appellant was not fatal because the prosecution was able to preserve the integrity and evidentiary value of the said illegal drugs. People vs. Llamado, G.R. No.

185278 March 13, 2009

However, the failure to follow the procedure mandated under R.A. No. 9165 and its IRR must be adequately explained.

The justifiable ground for non-compliance must be proven as a fact. The court cannot presume what these grounds are or that they even exist. People vs. De Guzman, G.R. No.

186498, March 26, 2010

e. Is the presumption of regular performance of duty conclusive in chain of custody cases?

No. this presumption is not conclusive and cannot, by itself, overcome the constitutional presumption of innocence. The presumption of regularity, it must be emphasized, obtains only when there is no deviation from the regular performance of duty.

Where the official act in question is irregular on its face, no presumption of

31 regularity can arise. In the present case,

the procedural lapses by the apprehending team in the handling of the seized items – from their failure to mark it immediately upon confiscation, to their failure to inventory and photograph it in the presence of the accused, or his representative or counsel, a representative from the media and the DOJ, and any elected public official, without offering any justifiable ground – effectively negated the presumption of regularity. People vs. Alejandro, G.R. No.

176350, August 10, 2011

f. Does the stipulation to the chemist’s receipt of an “allegedly” confiscated specimen which tested positive for shabu sufficient?

No. The stipulation referred to the chemist’s receipt of an “allegedly” confiscated specimen which tested positive for shabu is not sufficient. There is no certainty that what was submitted and subjected for chemical examination was the specimen obtained from appellant. The failure to establish the evidence’s chain of custody is damaging to the prosecution’s case. People vs. Balagat, G.R. No.

177163, April 24, 2000

g. Cite certain important doctrines under the Chain of Custody.

1. The chain of custody requirement is essential to ensure that doubts regarding the identity of the evidence are removed through the monitoring and tracking of the movements of the seized drugs from the accused, to the police, to the forensic chemist, and finally to the court. People v.

Sitco, May 14, 2010

2. The duty to prove the guilt of an accused is reposed in the State. Law enforcers and public officers have the duty to preserve the chain of custody over the seized drugs. This guarantee of the integrity of the evidence to be used against an accused goes to the very heart of his fundamental rights.

People vs .De Guzman, G.R. No. 186498, March 26, 2010

3. Given the foregoing perspective, it is fairly evident that the police operatives trifled with the procedures in the custody of seized prohibited drugs in a buy-bust operation, as embodied in Sec. 21(1), Art. II of RA 9165, i.e., the apprehending officer/team

having initial custody and control of the drug shall:

immediately after seizure and confiscation, physically inventory and photograph the [drug] in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof.

In this case, no physical inventory was made and no photograph taken nor markings made on the seized articles at the crime scene there is no reasonable assurance that no tampering or substitution occurred between the time the police seized the black bag in P. Ocampo St. in Manila until its contents were tested in the laboratory of the PNP R-IV headquarters in Canlubang, Laguna. In net effect, a heavy cloud of doubt hangs over the integrity and necessarily the evidentiary value of the seized items. People vs. Cervantes, G.R. No. 181494, March 17, 2009 4. It cannot be over-emphasized that pertinent provisions of RA 9165 require that the seized illegal items shall, after their inventory, be photographed in the presence of the drug dealer, representatives of media, the Department of Justice, or any elected public official who participated in the operation. The records do not yield an indication that this particular requirement has been complied with.To reiterate, the chain of custody requirement is necessary in order to remove doubts as to the identity of the evidence, by monitoring and tracking custody of the seized drugs from the accused, until they reach the court. A failure to comply with the aforequoted Sec. 21 (1) of RA 9165 implies a concomitant failure on the part of the prosecution to establish the identity of the seized illegal items as part of the corpus delicti. People v. Sitco, May 14, 2010

5. As a method of authenticating evidence, the chain of custody rule requires that the admission of an exhibit be preceded by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be. It would include

32 testimony about every link in the chain, from

the moment the item was picked up to the time it is offered in evidence, in such a way that every person who touched the exhibit would describe how and from whom it was received, where it was and what happened to it while in the witness’ possession, the condition in which it was received and the condition in which it was delivered to the next link in the chain. These witnesses would then describe the precautions taken to ensure that there had been no change in the condition of the item and no opportunity for someone not in the chain to have possession of the same. Indeed, it is from the testimony of every witness who handled the evidence that a reliable assurance can be derived that the evidence presented in court and that seized from the accused are one and the same. People v. De Guzman, March 26, 2010

6. The chain of custody requirement is essential to ensure that doubts regarding the identity of the evidence are removed through the monitoring and tracking of the movements of the seized drugs from the accused, to the police, to the forensic chemist, and finally to the court. People v.

Sitco, May 14, 2010

7. The duty to prove the guilt of an accused is reposed in the State. Law enforcers and public officers have the duty to preserve the chain of custody over the seized drugs. This guarantee of the integrity of the evidence to be used against an accused goes to the very heart of his fundamental rights.

People vs .De Guzman, G.R. No. 186498, March 26, 2010

2.01 IS PLEA BARGAINING ALLLOWED UNDER THIS LAW? (SEC. 23)

Any person charged under any provision of this Act regardless of the imposable penalty shall not be allowed to avail of the provision on plea-bargaining.

Illustrative case

BAR Q. [2005] Obie Juan is suspected to have in his possession an unspecified amount of methamphetamine hydrochloride or “shabu”. An entrapment operation was conducted by police officers, resulting in his arrest following the discovery of 100 grams of the said dangerous drug in his possession. He was subjected to a drug

test and was found positive for the use of marijuana, another dangerous drug. He was subsequently charged with two crimes: Violation of Section 11, Article II of RA 9165 for the possession of “shabu”

and violation of Section 15 for the use of marijuana. X X X So as not to be sentenced to death, Obie Juan offers to plead guilty to a lesser offense. Can he do so? Why?

Suggested Answer: No, Obie Juan cannot plead guilty to a lesser offense since this is explicitly prohibited under Section 23 of R.A. 9165. The law provides that any person charged under any provision of this Act regardless of the imposable penalty shall not be allowed to avail of the provisions on plea bargaining.

2.02 CAN A PERSON CONVICTED OF DRUG TRAFFICKING OR PUSHING AVAIL OF THE BENEFITS UNDER THE PROBATION LAW? (SEC. 24)

No, a person convicted of either drug trafficking or pushing cannot avail of the benefits of probation. Under the express provision of Section 24, it provides:

“Any person convicted for drug trafficking or pushing under this Act, regardless of the penalty imposed by the Court, cannot avail of the privilege granted by the Probation Law or Presidential Decree No.

968, as amended.”

2.03 CITE THE SIGNIFICANCE IF A POSITIVE FINDING FOR THE USE OF DANGEROUS DRUGS IS FOUND IN THE COMMISSION OF A CRIME.

(SEC. 25)

It shall constitute as a Qualifying Aggravating Circumstance in the commission of the crime. Republic Act 9165 expressly reads:

“ x x x a positive finding for the use of dangerous drugs shall be a qualifying aggravating circumstance in the commission of a crime by an offender, and the application of the penalty provided for in the Revised Penal Code shall be applicable.”

Illustrative case

33 BAR Q. [2005] Candido stabbed an

innocent bystander who accidentally bumped him. The innocent bystander died as a result of the stabbing. Candido was arrested and was tested to be positive for the use of shabu at the time he committed the stabbing.

What should be the proper charge against Candido?

Suggested Answer: Candido is guilty of homicide only. The act of stabbing was not consciously adopted but only accidental and therefore, negates treachery.

However, since the crime was committed when he was under the influence of dangerous drugs, such act becomes a qualifying circumstance pursuant to Section 25, R.A. 9165.

2.04 UNDER THE LAW, THERE ARE ACTS WHERE MERE ATTEMPT OR CONSPIRACY TO COMMIT THE SAME IS ALREADY PUNISHABLE.