G.R. No.

234048, April 23, 2018

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. MALOU ALVARADO Y

FLORES, ALVIN ALVAREZ Y LONQUIAS AND RAMIL DAL Y MOLIANEDA,
Accused-Appellants.

Facts of the case:

Accused-Appellants herein were charged with violation of sections 5 and 11 of

RA 9165 respectively. Acting on an information, the police immediately formed a
team to conduct a buy bust operation. At the conduct of the buy bust operation
herein accused-appelants were arrested. The operating team conducted the
inventory of the seized dangerous drugs in the presence of herein accused and an
elected Barangay Official. During the trial of the case the RTC rendered its decision
finding the accused guilty beyond reasonable doubt of the offenses charged. The
RTC held that all the elements of the crimes of illegal possession and illegal sale of
shabu were clearly established by the prosecution. As to the failure of the arresting
officers to strictly comply with the requirements under Section 21 of R.A. 9165, it was
noted that a barangay kagawad was present during the inventory and hence there
was substantial compliance with the law and that the integrity of the drugs seized
from appellants was preserved. On appeal to the CA, the CA affirmed the decision
of the RTC concluding that there was compliance with the chain of custody rule
which clearly showed that the drug specimens presented in court were the same
items in the possession of Malou at the time of the buy-bust operation. In their
appeal brief, appellants assail the CA in upholding their conviction despite the police
officers' non-compliance with procedural safeguards prescribed by Section 21 of
R.A. No. 9165. They assert that no evidence was presented showing that the
inventory and photographing of the seized items were conducted in their presence
and/or their representative, and representatives from the media and the DOJ. No
justifiable ground could be found in the testimonies of prosecution witnesses that
would excuse non compliance with the said provision.

Issue:

Whether or not the CA erred in affirming the decision of the RTC despite non-
compliance with procedural requirement under section 21 of RA 9165?

Ruling:

The appeal is meritorious.

Section 21, paragraph 1 of R.A. No. 9165 provides for the custody and
disposition of confiscated, seized, and/or surrendered drugs and/or drug
paraphernalia:

SEC. 21. Custody and Disposition of Confiscated, Seized, and/or

Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs,
Controlled Precursors and Essential Chemicals, Instruments/
Paraphernalia and/or Laboratory Equipment. - 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.

Here, the buy-bust operation was arranged and scheduled in advance. The
police officers formed an apprehending team, coordinated with the Philippine Drug
Enforcement Agency (PDEA), prepared the buy-bust money, and held a briefing.
Yet, they failed to ensure that a DOJ representative and a media practitioner, would
witness the inventory and photographing of the seized drugs.

Securing the presence of these persons is not impossible. Indeed, it is not

enough for the apprehending officers to merely mark the seized pack of shabu; the
buy-bust team must also conduct a physical inventory and take photographs of the
confiscated item in the presence of these persons required by law. 24 Relevantly,
under the Revised PNP Manual on Anti-Illegal Drugs Operations and Investigation,25
on specific rules and procedures for planned operations such as a buy-bust
operation, the designated Team Leader is required "to see to it that he has the
contact numbers of representatives from the DOJ, Media and any Local
Elected Official in the area for inventory purposes as required under Section
21, Article II of R.A. No. 9165."

The Implementing Rules and Regulations on the chain of custody thus require
that the apprehending officers not simply mention a justifiable ground, but also
clearly state this ground in their sworn affidavit, coupled with a statement on the
steps they took to preserve the integrity of the seized item. In this case, there was no
justifiable ground given by the arresting officers for the absence of DOJ and media
representatives in their Joint Affidavit.

Wherefore the appeal is granted and the decision of the CA is hereby

reversed and set aside. Accused-Appellants are hereby acquitted.
 G.R. No. 222559, June 06, 2018

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. JENNIFER GA-A Y

CORONADO, Accused,

AQUILA "PAYAT" ADOBAR, Accused-Appellant.

Facts of the case:

PDEA Regional Office X formed a buy bust team against Adobar and his live-
in partner based on an information by an informant. On the conduct of the buy bust
operation Adobar evaded arrest however the live-in partner of Adobar was arrested.
Thereat, the team conducted the inventory of the seized illegal drugs in the presence
of the elected official and media representative only. Adobar was not present during
the conduct of the inventory considering that he evaded arrest. Later on Adobar was
arrested and held for trial. During the trial the RTC decided that Adobar was guilty
beyond reasonable doubt but acquitted his live-in partner. On appeal, CA affirmed
the ruling of the RTC in toto. The CA held that the prosecution adequately proved all
the elements of the crime. It held that the prosecution sufficiently established all the
links in the chain of custody as to remove doubt on the integrity of the subject drugs.

Anent the alleged failure of the PDEA agents to comply with Section 21,
Article II of RA 9165 as the media and DOJ representatives, respectively, were not
presented to testify on the Inventory which they supposedly witnessed, the CA held
that this lapse did not render the subject drugs seized inadmissible because the
prosecution had duly shown that its integrity and evidentiary value were preserved.
According to the CA, substantial adherence - not strict adherence - to the
requirements of Section 21 suffices and the same was satisfied by the PDEA agents.

Issue:

The main question thrown to the Court for resolution is whether or not
accused-appellant Adobar is guilty beyond reasonable doubt of sale of illegal drugs
as defined and punished under Section 5, Article II of RA 9165 despite non-
compliance with the requirements under section 21 of RA 9165?

Ruling:

The Appeal has merit.

In People v. Dela Cruz,78 it was explained that compliance with the chain of
custody requirement provided by Section 21 ensures the integrity of confiscated
drugs and related paraphernalia in four (4) respects: first, the nature of the
substances or items seized; second, the quantity (e.g., weight) of the substances or
items seized; third, the relation of the substances or items seized to the incident
allegedly causing their seizure; and fourth, the relation of the substances or items
seized to the personls alleged to have been in possession of or peddling them.

Compliance with the requirements forecloses opportunities for planting,

contaminating, or tampering of evidence in any manner. Non compliance, on the
other hand, is tantamount to failure in establishing the identity of corpus delicti, an
essential element of the offense of illegal sale of dangerous drugs, thus,
engendering the acquittal of an accused. However, the law allows such non-
compliance in exceptional cases where the following requisites are present: (1) the
existence of justifiable grounds to allow departure from the rule on strict compliance;
and (2) the integrity and the evidentiary value of the seized items are properly
preserved by the apprehending team.80 In these exceptional cases, the seizures and
custody over the confiscated items shall not be rendered void and invalid.

Against the foregoing legal backdrop, the Court had exhaustively studied the
records and is of the considered view that the integrity and identity of the corpus
delicti are compromised.The buy-bust team failed to comply with the requirements of
Section 21 of RA 9165, particularly as to the presence of the three (3) witnesses
immediately after seizure and confiscation of the illegal drugs.

In other words, while the physical inventory and photographing is allowed to

be done "at the nearest police station or at the nearest office of the apprehending
officer/team, whichever is practicable, in case of warrantless seizure," this does not
dispense with the requirement of having the DOJ and media representative and the
elected public official to be physically present at the time of and at or near the
place of apprehension and seizure so that they can be ready to witness the
inventory and photographing of the seized drugs "immediately after seizure
and confiscation."

To reiterate, the three (3) insulating witnesses must be present at the time of
seizure of the drugs such that they must be at or near the intended place of arrest so
they can be ready to witness the inventory and photographing of the seized items
"immediately after seizure and confiscation." These witnesses must sign the
inventory and be given copies thereof. In the present case, from the evidence of
the prosecution itself, none of the witnesses were present during the seizure
and confiscation of the subject drugs. Moreover, only two (2) of them - the
punong barangay and the media representative - witnessed the photographing and
signed the inventory.

Adobar's flight serves as a waiver of his right to be present during the initial
custody requirements of Section 21 of RA 9165, but does not excuse compliance by
the buy-bust team with the presence of the three (3) insulating witnesses therein.

Hence, the decision of the CA is hereby reversed and set aside. Adobar is
hereby acquitted of the offense charged against him.
 G.R. No. 229826, July 30, 2018

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. PATRICIA CABRELLOS Y

DELA CRUZ, Accused-Appellant.

Facts of the case:

Acting upon a tip from an informant the Philippine Drug Enforcement Agency
and the Provincial Anti-Illegal Drugs Special Operations Group organized a buy-bust
team against herein Accused-Appellant. During the conduct of the buy-bust
operation Cabrellos was arrested and 17 sachets of suspected shabu was seized
from her possession. The police officers then brought Cabrellos and the seized items
to the Ayungon Police Station for the conduct of photography and inventory of the
seized items. However, since only a barangay kagawad was present at the Ayungon
Police Station at that time, the police officers brought Cabrellos and the seized items
to the Dumaguete Police Station wherein they conducted a second inventory, this
time in the presence of a representative each from the DOJ and the media. During
the trial of the case the RTC convicted Cabrellos of the crime charged. RTC found
that the prosecution was able to prove Cabrellos's guilt beyond reasonable doubt,
considering that: (a) she was caught in flagrante delicto selling shabu to the poseur-
buyer; and (b) in the search incidental to her arrest, she was discovered to be in
possession of seventeen (17) more sachets of shabu. On the other hand, it did not
give credence to Cabrellos' bare denial as it stood weak in the face of the detailed
and candid testimonies of the prosecution's witnesses. On appeal to the CA, the CA
affirmed the RTC ruling.

Issue:

The issue for the Court's resolution is whether or not Cabrellos is guilty
beyond reasonable doubt of violating Sections 5 and 11, Article II of RA 9165.

Ruling:

After a judicious study of the case, the Court finds that the police officers
committed unjustified deviations from the prescribed chain of custody rule, thereby
putting into question the integrity and evidentiary value of the dangerous drugs
allegedly seized from Cabrellos. It is clear that the arresting officers conducted two
(2) separate inventories, both of which are glaringly non-compliant with the required
witnesses rule. The chain of custody rule laid down by RA 9165 and its IRR
contemplates a situation where the inventory conducted on the seized items is
witnessed by the required personalities at the same time. It is well to note that the
non-compliance with the required witnesses rule does not per se render the
confiscated items inadmissible. However, a justifiable reason for such failure or a
showing of any genuine and sufficient effort to secure the required witnesses under
Section 21, Article II of RA 9165 must be adduced. As such, police officers are
compelled not only to state the reasons for their non-compliance, but must in fact,
also convince the Court that they exerted earnest efforts to comply with the
mandated procedure, and that under the given circumstance, their actions were
reasonable.
 G.R. No. 231989, September 04, 2018

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. ROMY LIM Y MIRANDA,

Accused-Appellant.

Facts of the case:

Accused-Appellant was arrested, together with Gorres, during a buy bust

operation conducted by PDEA Regional Office X. Thereat, inventory of the seized
illegal drugs was conducted. Despite exerting efforts to secure the attendance of the
representative from the media and barangay officials, nobody arrived to witness the
inventory-taking. The buy-bust team brought Lim and Gorres to the PDEA Regional
Office. IO1 Orellan made the Inventory Receipt of the confiscated items. It was not
signed by Lim and Gorres. Also, there was no signature of an elected public official
and the representatives of the Department of Justice (DOJ) and the media as
witnesses. After trial, the RTC handed a guilty verdict on Lim for illegal possession
and sale of shabu and acquitted Gorres for lack of sufficient evidence linking him as
a conspirator. On appeal, the CA affirmed the RTC Decision. It agreed with the
finding of the trial court that the prosecution adequately established all the elements
of illegal sale of a dangerous drug as the collective evidence presented during the
trial showed that a valid buy-bust operation was conducted.

Issue:

Whether or not Lim is guilty of the offenses charged despite non-compliance

with section 21 of RA 9165?

Ruling:

The judgment of conviction is reversed and set aside, and Lim should be
acquitted based on reasonable doubt.

At the time of the commission of the crimes, the law applicable is R.A. No.
9165. Section 1(b) of Dangerous Drugs Board Regulation No. 1, Series of 2002,
which implements the law, defines chain of custody as-

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 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 use in court as evidence, and the final disposition.

Thus, the links in the chain of custody that must be established are: (1) the
seizure and marking, if practicable, of the illegal drug recovered from the accused by
the apprehending officer; (2) the turnover of the seized illegal drug by the
apprehending officer to the investigating officer; (3) the turnover of the illegal drug by
the investigating officer to the forensic chemist for laboratory examination; and (4)
the turnover and submission of the illegal drug from the forensic chemist to the court.

On July 15, 2014, R.A. No. 10640 was approved to amend R.A. No. 9165. Among
other modifications, it essentially incorporated the saving clause contained in the
IRR, thus:

(1) The apprehending team having initial custody and control of the
dangerous drugs, controlled precursors and essential chemicals,
instruments/paraphernalia and/or laboratory equipment shall,
immediately after seizure and confiscation, conduct a phyical inventory
of the seized items 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, with an elected
public official and a representative of the National Prosecution Service
or the media who shall be required to sign the copies of the inventory
and be given a copy thereof: Provided, That the physical inventory and
photograph shall be conducted at the place where the search warrant
is served; or at the nearest police station or at the nearest office of the
apprehending officer/team, whichever is practicable, in case of
warrantless seizures: Provided, finally, That noncompliance of these
requirements under justifiable grounds, as long as the integrity
and the 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.

It must be alleged and proved that the presence of the three witnesses to the
physical inventory and photograph of the illegal drug seized was not obtained due to
reason/s such as:

(1) their attendance was impossible because the place of arrest was a
remote area; (2) their safety during the inventory and photograph of
the seized drugs was threatened by an immediate retaliatory action
of the accused or any person/s acting for and in his/her behalf; (3)
the elected official themselves were involved in the punishable acts
sought to be apprehended; (4) earnest efforts to secure the presence
of a DOJ or media representative and an elected public official within
the period required under Article 125 of the Revised Penal Code
prove futile through no fault of the arresting officers, who face the
threat of being charged with arbitrary detention; or (5) time
constraints and urgency of the anti-drug operations, which often rely
on tips of confidential assets, prevented the law enforcers from
obtaining the presence of the required witnesses even before the
offenders could escape.

The prosecution likewise failed to explain why they did not secure the
presence of a representative from the Department the arresting officer, IO1 Orellan,
stated in his Affidavit that they only tried to coordinate with the barangay officials and
the media, the testimonies of the prosecution witnesses failed to show that they tried
to contact a DOJ representative. The testimonies of the prosecution witnesses also
failed to establish the details of an earnest effort to coordinate with and secure
presence of the required witnesses. They also failed to explain why the buy-bust
team felt "unsafe" in waiting for the representatives in Lim's house, considering that
the team is composed of at least ten (10) members, and the two accused were the
only persons in the house.

In order to weed out early on from the courts' already congested docket any
orchestrated or poorly built up drug-related cases, the following should henceforth be
enforced as a mandatory policy:

1. In the sworn statements/affidavits, the apprehending/seizing officers must

state their compliance with the requirements of Section 21 (1) of R.A. No.
9165, as amended, and its IRR.

2. In case of non-observance of the provision, the apprehending/seizing officers

must state the justification or explanation therefor as well as the steps they
have taken in order to preserve the integrity and evidentiary value of the
seized/confiscated items.

3. If there is no justification or explanation expressly declared in the sworn

statements or affidavits, the investigating fiscal must not immediately file the
case before the court. Instead, he or she must refer the case for further
preliminary investigation in order to determine the (non) existence of probable
cause.

4. If the investigating fiscal filed the case despite such absence, the court may
exercise its discretion to either refuse to issue a commitment order (or warrant
of arrest) or dismiss the case outright for lack of probable cause in
accordance with Section 5,40
Rule 112, Rules of Court.
 G.R. No. 223142, January 17, 2018

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee vs. ROLANDO SANTOS

ZARAGOZA, Accused-Appellant

Facts of the case:

Based on an informant, Atty. Liwalug interviewed the informant and conducted

a surveillance and test-buy to confirm the veracity of the information. Upon verifying
that the information was credible, armed with a search warrant the team of NBI
agents served the search warrant against Santos. During the service of the warrant,
Santos was the arrested together with Loquinario-Flores. Illegal drugs and illegal
paraphernalia were seized during the conduct of the search. Inventory of the seized
items were witnessed by the DOJ representative, media, and elected official.
Thereafter the seized illegal drugs and paraphernalia were submitted to NBI forensic
chemist for laboratory examination. Both Santos and Loquinario-Flores were
respectively charged with violation of section 6, 11 and 12 and section 7 of RA 9165.
The RTC ruled that the entry in the house of Santos by the NBI team and the
subsequent confiscation of the paraphernalia and marijuana were valid and legal
since the team had a search warrant. Moreover, it held that the search was
conducted following proper procedure. Thus the RTC holds Santos guilty beyond
reasonable doubt for violation of Sections 6, 11 and 12, Article II of Republic Act No.
9165 and Loquinario-Flores guilty beyond reasonable doubt fpr violation of Section 7
of the above-cited law. On appeal to the CA, the CA modified the decision of the
RTC affirming the decision on illegal possession of illegal drugs and paraphernalia
and setting aside the decision on maintenance of drug den because the prosecution
failed to prove the same. In the same guise the CA set aside an reversed the ruling
against Loquinario-Flores for if there is drug den then there can be no visitor to the
said drug den.

Issue:

Whether or not the RTC erred convicting Santos despite the prosecution
failed to prove the identity and integrity of the seized drugs?

Ruling:

There was an unbroken chain in the custody of the seized drugs and
paraphernalia. It was the position of Santos that there was doubt as to the whether
the marijuana and paraphernalia seized from him were the very same objects offered
in court as corpus delicti. He claimed that there was no explanation given regarding
the items confiscated from Santos from the time these were seized until their
turnover for laboratory examination.

The exacting requirement as to the chain of custody of seized drugs and

paraphernalia is highlighted in R.A. No. 9165 as follows:

Section 21. Custody and Disposition of Confiscated, Seized, and/or

Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs.
Controlled Precursors and Essential Chemicals,
 Instruments/Paraphernalia and/or Laboratory Equipment. - 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;

On the one hand, the Implementing Rules and Regulations (IRR) settles the proper
procedure to be followed in Sec. 21(a) of R.A. No. 9165, viz:

(a) The apprehending office/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: Provided, that the physical inventory and photograph shall be
conducted at the place where the search warrant is served; or at the
nearest police station or at the nearest office of the apprehending
officer/team, whichever is practicable, in case of warrantless seizures;
Provided, further that non-compliance with these requirement" under
justifiable grounds, as long as the integrity and the 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 has explained in a catena of cases the four (4) links that should be
established in the chain of custody of the confiscated item: 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.

The prosecution was able to fully discharge its burden of proving beyond
reasonable doubt its charges against Santos. Noteworthy, the legal teaching in our
jurisprudence is that "the integrity of the evidence is presumed to have been
preserved unless there is a showing of bad faith, ill will, or proof that the evidence
has been tampered with. Accused-appellant bears the burden of showing that the
evidence was tampered or meddled with in order to overcome the presumption of
regularity in the handling of exhibits by public officers and the presumption that
public officers properly discharged their duties." Santos had miserably failed in
presenting any evidence that would justify a finding that the NBI team had ill motive
in tampering with the evidence in order to hold him liable for these grave offenses.

The contention of Santos that the members of the raiding team gave an
altogether different account as to who actually witnessed the implementation of the
search warrant,42 is a trivial and inconsequential matter that does not affect the
credibility of the prosecution witnesses. These matters do not deal with the central
fact of the crime. Besides, it has been held, time and again, that minor
inconsistencies and contradictions in the declarations of witnesses do not destroy
the witnesses' credibility but even enhance their truthfulness as they erase any
suspicion of a rehearsed testimony.
 G.R. No. 218402, February 14, 2018

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. RAMIL GALICIA Y CHAVEZ,

Accused-Appellants.

Facts of the case:

Herein Appellant was among the target of a search warrant in Mapayapa

Compound. The search warrant was issued due the information that selling and
using of shabu in Mapayapa Compound was rampant. The Information was verified
by a series of surveillance and test-buy conducted by the operating team. During the
service of the search warrant, the team was able to find and seize from the appellant
plastic sachets containing crystalline substances, weighing scale, cellphone,
assorted lighters, wallet containing dollars and a few coins, aluminum foil, and
assorted cutters and scissors. The seized items were marked and inventoried in the
Receipt of the Property Seized at Target No. 8. Appellant was one of the persons
arrested and charged with the following violations: maintenance of a drug den in
violation of Section 6, RA 9165; illegal possession of dangerous drugs and drug
paraphernalia in violation of Sections 11 and 12 respectively, RA 9165; and use of
dangerous drugs in violation of Section 15, RA 9165. RTC rendered judgment finding
appellant guilty as charged. The RTC was convinced that the prosecution, through
the testimonies of the arresting officers who conducted the search, was able to
establish the guilt of appellant beyond reasonable doubt. On appeal the CA affirmed
the RTC's Decision. Dissatisfied with the CA's Decision, and after denial of his
Motion for Reconsideration, appellant filed a Notice of manifesting his intention to
appeal the CA Decision to this Court.

Issue:

The issue in this case is whether appellant is guilty of maintenance of a drug

den, illegal possession of dangerous drugs and drug paraphernalia, and use of
dangerous drugs. According to appellant, the RTC erroneously convicted him in view
of the fact that the prosecution failed to prove his guilt beyond reasonable doubt in all
the offenses charged.

Ruling:

For an accused to be convicted of maintenance of a drug den, the prosecution

must establish with proof beyond reasonable doubt that the accused is maintaining a
den where any dangerous drug is administered, used, or sold. It must be established
that the alleged drug den is a place where dangerous drugs are regularly sold to
and/or used by customers of the maintainer the den. As correctly pointed out by the
appellate court:

To convict an accused under this section, the prosecution must show

that the place he is maintaining is a den, dive, or resort where
dangerous drug is used or sold in any form. Hence, two things must be
established, thus: (a) that the place is a den - a place where any
dangerous drug and/or controlled precursor and essential [chemical] is
administered, delivered, stored for illegal purposes, distributed, sold, or
 used in any form; (b) that the accused maintains the said place.
Hence, it is not enough that the dangerous drug or drug
paraphernalia were found in the place. More than a finding that
dangerous drug is being used thereat, there must also be a clear
showing that the accused is the maintainer or operator or the owner of
the place where the dangerous drug is used or sold. 13 (Emphasis
supplied)

The Court finds that the prosecution failed to clearly establish that the
appellant was guilty of violation of maintenance of a drug den. From ihe testimonies
of the arresting officers, it is clear that the prosecution failed to establish that the
shanty where appellant was found was a place where dangerous drugs were sold
or used.

Section 15, Article II, RA 9165 on use of dangerous drugs, provides:

A person apprehended or arrested, who is found to be positive for use

of any dangerous drug, after a confirmatory test, shall be imposed a
penalty of a minimum of six (6) months rehabilitation in a government
center for the first offense, subject to the provisions of Article VIII of
this Act. If apprehended using any dangerous drug for the second time,
he/she shall suffer the penalty of imprisonment ranging from six (6)
years and one (1) day to twelve (12) years and a fine ranging from Fifty
thousand pesos (P50,000.00) to Two hundred thousand pesos
(P200,000.00): Provided, That this Section shall not be applicable
where the person tested is also found to have in his/her
possession such quantity of any dangerous drug provided for
under Section 11 of this Act, in which case the provisions stated
therein shall apply.

It is clear from the above that the Section 15 does not apply when a person
charged with violation of Section 15, Article II, RA 9165 on use of dangerous drugs,
is also found to have possession of such quantity of drugs provided under Section
11 of the same law. This means that appellant may not be charged separately of
violation of Section 11 on illegal possession of dangerous drugs and of Section 15
on use of dangerous drug since it is clear from the above that the provisions of
Section 11 shall apply. Illegal possession of dangerous drugs absorbs the use of
dangerous drugs. This is especially true in this case since appellant was not caught
in the act of using drugs. Instead he was caught in the act of possessing drugs and
drug paraphernalia. For this reason, the Court dismisses Criminal Case No. 14823-D
against appellant on use of dangerous drugs as the same is absorbed by Section 11
on illegal possession of dangerous drugs.

With regard to the alleged failure of the police officers to comply with the
procedure required in the seizure of drugs, the records show that the prosecution
was able to establish an unbroken chain of custody over the seized drugs - from the
seizure and confiscation of the shabu up to the delivery of the same to the crime
laboratory and presentation in Court.
 The failure of the prosecution to present the forensic chemist to testify on how
the seized items were handled and taken into custody is not fatal to the admissibility
of the seized drugs and its paraphernalia. In People v. Padua,20 the Court held:

Further, not all people who came into contact with the seized drugs are
required to testify in court. There is nothing in Republic Act No. 9165 or
in any rule implementing the same that imposes such requirement. As
long as the chain of custody of the seized drug was clearly established
not to have been broken and that the prosecution did not fail to identify
properly the drugs seized, it is not indispensable that each and every
person who came into possession of the drugs should take the witness
stand. x x x

What is of utmost importance is the preservation of the integrity and the

evidentiary value of the seized drugs. In this case, the Court upholds the findings of
the CA that the shabu and its paraphernalia that were presented in court were the
same items seized from the appellant with its integrity and evidentiary value
uncompromised.