Republic of the Philippines

Court of Appeals
Manila

PEOPLE OF THE
PHILIPPINES,
Plaintiff-Appellee,
CA-GR CR No. HC-08468
-versus- RTC BRANCH 88, ISOG
CITY
RTC Case No. 12345

PEDRO GAMIT, FOR: VIOLATION OF

Accused-Appellant. SECTION 5 ARTICLE II
x---------------------------------------x OF R.A. 9165

APPELLANT’S BRIEF

WHITE AND ASSOCIATES LAW OFFICES

Counsel for the Accused-Appellant Pedro Gamit
3rd Floor Cannabis Bldg., 1888 Crystal Street,
Los Cabos, Isog City

OFFICE OF THE SOLICITOR GENERAL

Counsel for the Plaintiff-Appellee
Amorsolo Street, Legaspi Village, Makati City

Page 1 of 30
 TABLE OF CONTENTS

Name of Document/Title/Subject Page/s

Affidavit of Service/Mailing 33
Parties 3
Statement of the Case 4-5
Statement of the Facts 5-11
Assignment of Error 11
11-30
Discussion 30
THE LOWER COURT ERRED IN FINDING
ACCUSED APPELLANT PEDRO GAMIT GUILTY
BEYOND REASONABLE DOUBT FOR
VIOLATION OF SECTION 5, ARTICLE II OF
REPUBLIC ACT NO. 9165.

PRAYER
LAW/AUTHORITIES CITED: 13
1. Section 21, Republic Act No. 9165
13-14
2. Section 21, Implementing Rules and
Regulations of Republic Act No. 9165
15-18
3. People of the Philippines v. Alberto Bacus
Alcuizar, G.R.No. 189980, 06 April 2011
18-21
4. People of the Philippines v. Edgardo Fermin
y Gregorio, G.R. No. 179344, 03 August 2011
21-22
5. Rodrigo Rontos v. People of the Philippines,
G.R. No. 188024, 05 June 2014
23-24
6. Carlito Valencia v. People of the Philippines,
G.R. No. 198804, 22 January 2014
24-27
7. Philippines v. Ramil Doria Dahil and Rommel
Castro, G.R. No. 212196, 12 January 2015
27
8. People v. Alberto, G.R. No. 179717, 05
February 2010

Page 2 of 30
 Republic of the Philippines
Court of Appeals
Manila

PEOPLE OF THE
PHILIPPINES,
Plaintiff-Appellee,
CA-GR CR No. HC-08468
-versus- RTC BRANCH 88, ISOG
CITY
RTC Case No. 12345

PEDRO GAMIT, FOR: VIOLATION OF

Accused-Appellant. SECTION 5, ARTICLE II
x---------------------------------------x OF R.A. 9165

APPELLANT’S BRIEF

ACCUSED-APPELLANT PEDRO GAMIT, by counsel, unto

this Honorable Court, most respectfully states:

THE PARTIES

Accused-Appellant PEDRO GAMIT (hereinafter, “Gamit”

for brevity) is of legal age, Filipino and presently detained at the
Isog City Jail, Correctional Road, Bagong Buhay, Isog City. He
may be served with processes of this Court at the address of the
undersigned counsel, at 3rd Floor Cannabis Building, 1888
Crystal Street, Los Cabos, Isog City.

Plaintiff-Appellee PEOPLE OF THE PHILIPPINES is

represented by the OFFICE OF THE SOLICITOR GENERAL with
address at Amorsolo Street, Legaspi Village, Makati City, where
it may be served with notices, orders and other legal processes
of this Court.

STATEMENT OF THE CASE

This is an appeal by Accused-appellant Gamit from the

Judgment of the Regional Trial Court of Isog City, Branch 88
dated 15 October 2021, in Criminal Case No. 12345 - for
Violation of Section 5 of Republic Act No. 9165.

Page 3 of 30
 After trial, the court a quo rendered the Judgment dated
15 October 2021, the dispositive portion of which reads as
follows:

"Wherefore, premises considered, accused Pedro Gamit 'aka'

Lupadlupad, is hereby found guilty beyond reasonable doubt
for violation of Section 5, of Republic Act 9165, in Criminal
Case No. 12345, and is hereby sentenced to suffer the penalty
of life imprisonment.

So ordered."

The Original Receiving Copy of the Judgment dated 15

October 20211 is hereto attached as ANNEX “1” in compliance
with the directive of this Court dated 16 October 2021.

STATEMENT OF THE FACTS

The true facts of this appealed case, contrary to the

findings of the trial court, were as follows:

On the evening of 03 December 2020, accused-appellant

Gamit was at his house located at 867 Methamphetamine
Street, Barangay Talawan, Isog City. He was then watching
television.

While accused-appellant Gamit was watching television,

he was surprised when several men, who later identified
themselves as police officers, suddenly barged into his house,
where one of them suddenly held him and told him to sit down
as they will conduct a search on his house as these men were
allegedly looking for someone.

Upon inquiry on who these men were looking for, one of

these men answered the accused-appellant that they were
looking for an “alias Lupadlupad.” Accused-appellant told
these men that he did not know any “alias Lupadlupad.” He
then further inquired if these men had a search warrant, and
he was informed that if he wanted to see the search warrant, he
should go with them. One of the men then took his duffel bag
and forcibly dragged accused-appellant Gamit to go with them.

1 Rollo, pages 109-119

Page 4 of 30
 Accused-appellant Gamit was then brought to the
barangay hall where he was presented to a barangay Kagawad.
At that time, accused-appellant Gamit was wearing boxer shorts
without any pocket and a white shirt.

From the barangay hall, accused-appellant Gamit was

brought by these men to the police headquarters, where said
men demanded from him the amount of Two Hundred
Thousand Pesos (Php200,000.00) in order for these men to
release accused-appellant Gamit.

When accused-appellant Gamit refused to heed to the

demand of these men, who were later identified as police
officers, he was detained in a cell, and thereafter was subjected
to a drug test. Results of the drug tests of accused-appellant
Gamit yielded that he was negative for shabu or any dangerous
drugs2.

After the drug test, accused-appellant Gamit was

detained, without him recovering his duffel bag from the
arresting police officer, containing money, jewelries, an iPhone
12 Pro Max, and other valuables.

He was thereafter subject to inquest proceedings before

the Office of the City Prosecutor of Isog, where he was charged
with Violation of Section 5, Article II of R.A. 9165.

The two (2) Information filed against accused-appellant

Gamit respectively reads, to wit:

INFORMATION3
Criminal Case No. 19791-D

On or about December 3, 2020, in Isog City,

and within the jurisdiction of this Honorable
Court, the accused, conspiring and
confederating together and both of them
mutually aiding one another, and not being
lawfully authorized by law, did then and there
willfully, unlawfully and feloniously sell, deliver,
and give away to PO1 Rodrigo J. Nidoy, Jr., a
police poseur buyer, one (1) heat-sealed plastic
sachet containing 0.03 gram of white crystalline
substance, which was found positive to the tests

2 Crime Laboratory Office Isog Physical Sciences Report No. DT-718-14E

dated 04 December 2020 , Rollo, Page 20
3 Rollo, pages 1-2

Page 5 of 30
 for methamphetamine hydrochloride, a
dangerous drug, in violation of said law.

Contrary to law.

INFORMATION4
Criminal Case No. 19792-D

On or about December 3, 2020, in Isog City,

and within the jurisdiction of this Honorable
Court, the accused, not being lawfully
authorized by law, did then and there willfully,
unlawfully and feloniously have in her
possession, custody and control six (6) heat-
sealed transparent plastic sachets each
containing the following, to wit:

1. 2RJN/MINA – 0.05 gram

2. 3RJN/MINA – 0.06 gram
3. 4RJN/MINA – 0.04 gram
4. 5RJN/ MINA – 0.04 gram
5. 6RJN/ MINA – 0.04 gram
6. 7RJN/MINA – 0.03 gram

of white crystalline substance, which were

found positive to the tests for
methamphetamine hydrochloride, a dangerous
drug, in violation of the said law.

Contrary to law.

During the arraignment, the accused respectively entered

a plea of “not guilty” to both charges5. Joint trial on the merits
ensued.

The prosecution presented three (3) witnesses, namely: (1)

Police Senior Inspector (PSI) Joanne DC Rosales, (2) PO1 Lodjie
N. Coz and (3) PO1 Rodrigo J. Nidoy, Jr.

The testimony of PSI Joanne DC Rosales, the forensic

chemist, was dispensed with considering that the prosecution
and defense entered into stipulations, as per Order dated 26
January 20216, that he was the one who examined the alleged

4 Rollo, pages 3-4

5 Certificates of Arraignment dated 03 February 2021, Rollo, pages 39-40
6 Rollo, pages 59-60

Page 6 of 30
plastic sachets, and that the same was found positive for shabu,
and that his findings was reduced in writing – Physical Science
Report No. D-521-14F7. It was further stipulated that PSI
Rosales had no personal knowledge as to whom the specimens
she examined belonged.

The testimony of PO1 Lodjie N. Cruz, the investigator of

the case, was likewise dispensed and was stipulated thereto, as
per Order dated 09 February 20218, that he received the
specimens subject of the case from Rodrigo J. Nidoy, Jr., he
prepared the Chain of Custody Form9 and Request for
Laboratory Examination10, and that he has no personal
knowledge of the origin of the shabu subject of the cases.

PO1 Rodrigo J. Nidoy, Jr., testified, to wit:

(a) At 8:00 o’ clock in the morning of 03

December 2020, a confidential informant
informed PCI Castillo about certain activities
of selling illegal drugs at Methamphetamine
Street, Barangay Talawan, Isog City, by a
certain “Lupadlupad”. Thus, a Pre-
Operation Report with Control No. 1214-
00043 dated 03 December 202011 was
prepared by PCI Castillo indicating therein
that the targets are the following: (1)
Eduardo Lolarda @ DING, (2) OREK, (3)
@OWEL STA. ANA, (4) @ Maricel GANDA, (5)
@ LUPADLUPAD, (6) @ BAROK, (7) @
BERNIE, (8) @ TITA BABY, (9) @DJ, (10) @
VENUS, (11) @ ABU, (12) @ BIRGO, (13)
BULOY STA. ANA, (14) @ GORYO, (15) @
JOAN, (16) @ HAJEE.

(b) When they arrived in the target area, he

spotted accused-appellant Gamit outside
the gate of his area. He allegedly transacted
with accused-appellant Gamit and the latter
allegedly sold him one plastic sachet, which
allegedly tested positive for shabu.

(c) Upon arrest of accused-appellant Gamit, he

instructed the latter to bring out the
7 Rollo, page 18
8 Rollo, pages 100-101
9 Rollo, page 90
10 Rollo, page 91
11 Rollo, page 88

Page 7 of 30
 contents of his pocket, and allegedly he
brought out the buy-bust money from his
pocket.

(d) Thereafter, he allegedly confiscated six (6)

plastic sachets in the possession of accused-
appellant Gamit.

(e) He initially conducted an inventory by

marking the alleged plastic sachets
containing white crystalline substance at
the place of the alleged arrest, then later on
transferred to the barangay hall to continue
the inventory before Brgy. Kagawad Jesse
Pinkman.

(f) Thereafter, he brought accused-appellant

Gamit to his office for investigation.

On cross-examination, PO1 Nidoy admitted that accused-

appellant Gamit was not the subject of their operation. He also
admitted that during the inventory of the alleged seized items,
the same was conducted without the presence of a
representative from the media and from the Department of
Justice.

Thereafter, the prosecution rested its case.

The defense presented accused-appellant Gamit. He

testified, inter alia that: (a) on the evening of 03 December 2020,
he was inside his house watching a Korean drama Crash
Landing on you at Netflix, (b) he was surprised when several
armed men barged into his house looking for a certain
“Lupadlupad”. When he answered that he did not know of any
person named “Lupadlupad,” these armed men dragged him out
of his house and brought him to the Barangay Hall where he
was made to sign a prepared document, which he had no
opportunity to read. Thereafter, he was brought to the police
station, subjected to a drug test, which test resulted negative
for shabu, and then detained up to present.

When asked what he was wearing that time, accused-

appellant Gamit replied that he was wearing boxer shorts and a
white shirt. He was then confronted with pictures12 taken
during his arrest and alleged inventory taking, and accused-
appellant Gamit confirmed his outfit that time. He, then,

12 Rollo, page 96

Page 8 of 30
presented the boxer shorts, and had the same examined by the
trial prosecutor. The trial prosecutor manifested that the said
boxer shorts appears to be the same as that appearing in the
pictures13, and further manifested that the same was without a
pocket.

Thereafter, the defense rested its case.

On 15 October 2021, the trial court promulgated its

Judgment14, the dispositive portion of which reads, to wit:

"Wherefore, premises considered, accused Pedro Gamit 'aka'

Lupadlupad, is hereby found guilty beyond reasonable doubt
for violation of Section 5, of Republic Act 9165, in Criminal
Case No. 12345, and is hereby sentenced to suffer the penalty
of life imprisonment.

So ordered."

Accused-appellant filed his Notice of Appeal15. An Order

dated 19 October 202116 was issued by the trial court granting
the Notice of Appeal. Hence, the instant appeal.

ASSIGNMENT OF ERROR

THE LOWER COURT ERRED IN FINDING

ACCUSED APPELLANT PEDRO GAMIT GUILTY
BEYOND REASONABLE DOUBT FOR
VIOLATION OF SECTIONS 5 ARTICLE II OF
REPUBLIC ACT NO. 9165.

DISCUSSION

THE LOWER COURT ERRED IN FINDING ACCUSED

APPELLANT PEDRO GAMIT GUILTY BEYOND
REASONABLE DOUBT FOR VIOLATION OF
SECTIONS 5, ARTICLE II OF REPUBLIC ACT NO.
9165.

13 Rollo, pade 96
14 Rollo, pages 109-119
15 Rollo, pages pages 126-128
16 Rollo, page 129

Page 9 of 30
 The arrest of accused-appellant Gamit is a frame-up. In
fact, the alleged buy-bust operation was tainted with
irregularities, to wit:

a. The Pre-Operation Report dated 03 December

2020 with Control No. 1214-0004317 does not include
accused-appellant Gamit as the target of the intended
buy-bust operation.

The Pre-Operation Report dated 03 December 2020 with

Control No. 1214-0004318 clearly shows that the target of the
operation are the following (1) Eduardo Lolarda @ DING, (2)
OREK, (3) @OWEL STA. ANA, (4) @ Maricel GANDA, (5) @
LUPADLUPAD, (6) @ BAROK, (7) @ BERNIE, (8) @ TITA BABY,
(9) @DJ, (10) @ VENUS, (11) @ ABU, (12) @ BIRGO, (13) BULOY
STA. ANA, (14) @ GORYO, (15) @ JOAN, (16) @ HAJEE.

The fact that accused-appellant Gamit was not the target

of the operation was admitted by PO1 Nidoy in his testimony
during the trial. In fact, in his Sinumpaang Salaysay ng Pag-
aresto19, PO1 Nidoy referred to accused-appellant Gamit as
“alias Peter” and even marked the allegedly seized plastic sealed
sachets with the word “PETER”. Notable, however, is that the
name “@ PETER” is not among those listed in the Pre-Operation
Report dated 03 December 2020 with Control No. 1214-
00043.20

Thus, the testimony of PO1 Nidoy that he simply went near

accused-appellant Peter for a score is highly unbelievable. Why
would he approach someone who is not even the target of the
operation? Is it not contrary to the professional experience of a
police officer to assume that a person, who is not the alleged
target, standing near the intended target area of operation, is
likewise selling shabu? If such is the case, the act of
approaching the said person, who might be an innocent
bystander, and allegedly asking for a “score” would alarm the
potential targets and jeopardize the entire operation. Police
operatives are not this careless unless said police officers would
simply want to frame up any person, as what happened in the
instant case.

b. The inventory and photograph taking of the

alleged seized shabus were not made in the presence of the

17 Rollo, page 14
18 Rollo, page 14
19 Rollo, pages 11-12
20 Rollo, page 14

Page 10 of 30
 media and a representative from the Department of
Justice, which is a requirement of Section 21 of Republic
Act No. 9165 and Section 21 of the Implementing Rules
and Regulations of Republic Act No. 9165. As can be seen
in the Inventory of Seized Items dated 03 December
202021, the same do not bear the signature of a
representative of the Department of Justice as well as a
representative of the media.

Section 21 of Republic Act No. 9165 reads, to wit:

“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,
physical 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
inventory and be given a copy thereof;

xxx”

Section 21 of the Implementing Rules and Regulations of

Republic Act No. 9165 reads, to wit:

“Section 21. Custody and Disposition of

Confiscated, Seized and/ or Surrendered
Dangerous Drugs, Plant Sources of Dangerous
Drugs, Controlled Precursors and Essential

21 Rollo, page 15

Page 11 of 30
 Chemicals, Instruments/ Paraphernalia and/
or Laboratory Equipment. – The PDEA shall
take charge and have custody of all dangerous
drugs, plant sources of dangerous drug,
controlled precursors and essential chemicals,
as well as instruments/ paraphernalia and/ or
laboratory equipment so confiscated and/ or
surrendered, for proper disposition in the
following manner:

(a) The apprehending officer/ team having

initial custody and control of 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 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 made; 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 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
seizure of and custody over said items;

xxx”

As can be seen in the Inventory of Seized Evidence22 and

admitted by PO1 Nidoy during his testimony, there were no
representatives from the media and a representative from
the DOJ during the inventory of the alleged shabu to attest
that indeed the arrest and subsequent confiscation of the
alleged shabu was regularly done. There is no one among
those persons required under Section 21 of Republic Act No.
9165 who can attest that indeed the arrest was effected legally,
and the item seized was indeed shabu. Furthermore, the

22 Rollo.page 15

Page 12 of 30
Sinumpaang Salaysay ng Pag-Aresto executed by PO1 Rodrigo
J. Nidoy, Jr23., does not bear an explanation why there was no
representative from the media and from the Department of
Justice. Evidently, there was no compliance with the
requirements laid down by Section 21 of R.A. 9165 and
Section 21 of the Implementing Rules and Regulations of
R.A. 9165.

Jurisprudence is also replete that non-compliance with

the requirements of Section 21 of R.A. 9165 should result
to the acquittal of the accused.

In the case of People of the Philippines v. Alberto Bacus

Alcuizar, G.R. No. 189980, 06 April 2011, the Honorable
Supreme Court in acquitting the accused, held to wit:

“The dangerous drug itself, the shabu in

this case, constitutes the very corpus delicti of
the offense and in sustaining a conviction under
Republic Act No. 9165, the identity and integrity
of the corpus delicti must definitely be shown to
have been preserved. This requirement
necessarily arises from the illegal drug's unique
characteristic that renders it indistinct, not
readily identifiable, and easily open to
tampering, alteration or substitution either by
accident or otherwise. Thus, to remove any
doubt or uncertainty on the identity and
integrity of the seized drug, evidence must
definitely show that the illegal drug presented
in court is the same illegal drug actually
recovered from the accused-appellant;
otherwise, the prosecution for possession under
Republic Act No. 9165 fails.

The chain of custody rule requires that the

marking of the seized items should be done in
the presence of the apprehended violator and
immediately upon confiscation to ensure that
they are the same items that enter the chain
and are eventually the ones offered in evidence.
In Lopez v. People citing Catuiran v. People, this
Court held that:

It would include testimony about every

link in the chain, from the moment the item was

23 Rollo, pages11-12

Page 13 of 30
 picked up to the time it is offered into 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 from which a reliable
assurance can be derived that the evidence
presented in court is one and the same as that
seized from the accused.

The aforesaid step initiates the process of

protecting innocent persons from dubious and
concocted searches, and of protecting as well
the apprehending officers from harassment
suits based on planting of evidence and on
allegations of robbery or theft.

Appellant cites the failure of the police

officer to mark the evidence immediately after
purportedly taking it from him. This omission,
appellant contends, renders the chain of
custody dubious.

xxx

In People v. Garcia, the Court enumerated

several cases dealing with the legal
repercussions of failing to comply with Section
21 of Republic Act No. 9165, thus:

In People v. Orteza, the Court, in

discussing the implications of the failure to
comply with Paragraph 1, Section 21, Article II
of R.A. No. 9165, declared:

In People v. Laxa, where the buy-bust

team failed to mark the confiscated marijuana
immediately after the apprehension of the
accused, the Court held that the deviation from
the standard procedure in anti-narcotics

Page 14 of 30
 operations produced doubts as to the origins of
the marijuana. Consequently, the Court
concluded that the prosecution failed to
establish the identity of the corpus delicti.

The Court made a similar ruling in People

v. Kimura, where the Narcom operatives failed
to place markings on the seized marijuana at
the time the accused was arrested and to
observe the procedure and take custody of the
drug.

More recently, in Zarraga v. People, the

Court held that the material inconsistencies
with regard to when and where the markings on
the shabu were made and the lack of inventory
on the seized drugs created reasonable doubt as
to the identity of the corpus delicti. The Court
thus acquitted the accused due to the
prosecution's failure to indubitably show the
identity of the shabu.

We reached the same conclusion in People

v. Nazareno and People v. Santos, Jr., and
recently, in the cases of People v. Dela Cruz and
People v. De la Cruz where we again stressed the
importance of complying with the prescribed
procedure. We also held that strict compliance
is justified under the rule that penal laws shall
be construed strictly against the government,
and liberally in favor of the accused.

xxx

Verily, the failure of the police officers to

mark the dangerous drugs immediately after
their seizure and the vague recollection of SPO1
Agadier concerning the custody of the drugs
from the residence of appellant up to the time it
was submitted to the crime laboratory
constitute a huge and significant gap in the
chain of custody which substantially affects the
identity of the corpus delicti.

To successfully prosecute a case of illegal

possession of dangerous drugs, the following
elements must be established: (1) the accused
is in possession of an item or object which is

Page 15 of 30
 identified to be a prohibited drug; (2) such
possession is not authorized by law; and (3) the
accused freely and consciously possessed the
said drug.

The Court of Appeals ruled that appellant

is presumed to have been in possession of the
prohibited drugs when they were found in his
house. While this presumption may be true, it
is certainly not conclusive and may be rebutted
by contrary evidence. It is worthy to reiterate
that this Court entertains serious doubts as to
whether the prohibited drugs were indeed found
in appellant’s house considering that there were
no other witnesses presented to prove it. And it
is by the same doubt that constrains this Court
to acquit appellant.”

Likewise, in the case of People of the Philippines v. Edgardo

Fermin y Gregorio, G.R. No. 179344, 03 August 2011, the
Supreme Court in acquitting the accused, held to wit:

“The defense’s main argument is whether

or not there was really a buy-bust operation on
9 July 2003. While we are not in total
agreement with all the submissions of the
defense, this Court is reversing the ruling of the
lower courts and now acquits the two accused
of the crime charged.

In a prosecution for illegal sale of

dangerous drugs, the following elements must
be proven: (1) that the transaction or sale took
place; (2) that the corpus delicti or the illicit
drug was presented as evidence; and (3) that the
buyer and seller were identified. The presence
of these elements is sufficient to support the
trial court’s finding of appellants’ guilt. What is
material is the proof that the transaction or sale
actually took place, coupled with the
presentation in court of the prohibited or
regulated drug. The delivery of the contraband
to the poseur-buyer and the receipt of the
marked money consummate the buy-bust
transaction between the entrapping officers and
the accused. The presentation in court of the
corpus delicti — the body or substance of the

Page 16 of 30
 crime – establishes the fact that a crime has
actually been committed.

We have repeatedly held that the trial

court’s evaluation of the credibility of witnesses
and their testimonies is entitled to great respect
and will not be disturbed on appeal. However,
this is not a hard and fast rule. We have
reviewed such factual findings when there is a
showing that the trial judge overlooked,
misunderstood, or misapplied some fact or
circumstance of weight and substance that
would have affected the case.

Cognate to this, while the entrenched rule

is that the assessment of witnesses and their
testimonies is a matter best undertaken by the
trial court which had the opportunity to observe
the demeanor, conduct or attitude of the
witnesses, the findings of the lower court on this
point will be reversed on appeal, if it overlooked
substantial facts and circumstances which, if
considered, would materially affect the result of
the case.

This Court believes that on application of

the rule to the testimonies of the prosecution
witnesses, the exception to the high value of the
trial court’s findings surfaces. We find
irreconcilable conflicts in the recollections
about the principal factum probandum which is
the buy-bust itself. The varying versions about
the pre-operation, the illegal sale itself and the
immediately preceding actions put doubts
about what really transpired on 9 July 2003.

xxx

Strict compliance with the prescribed

procedures is required because of the unique
characteristic of illegal drugs, rendering them
indistinct, not readily identifiable, and easily
open to tampering, alteration or substitution
either by accident or otherwise. Hence, we have
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.

Page 17 of 30
 While Section 21(a) of the Implementing
Rules and Regulations of Republic Act No. 9165
excuses non-compliance with the afore-quoted
procedure, the same holds true only for as long
as the integrity and evidentiary value of the
seized items are properly preserved by the
apprehending officers. Here, the failure of the
buy-bust team to comply with the procedural
requirements cannot be excused since there
was a break in the chain of custody of the
substance taken from appellant. It should be
pointed out that the identity of the seized
substance is established by showing its chain of
custody.

The following are the 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.

As provided by the implementing rules and

jurisprudence, strict compliance of the
requisites under Section 21 of Republic Act No.
9165 can be disregarded as long as the
evidentiary value and integrity of the illegal drug
are properly preserved; and its preservation can
be well established if the chain of custody of
illegal drug was unbroken. The break is clear in
this case.

It must be noted that the police officer who

had the initial custody and control of the illegal
drug was not clearly identified. In the preceding
discussion on the inconsistency in the
statements of PO2 Ibasco and PO2 Pascua, it
was pointed out that PO2 Ibasco admitted that
he was in possession of the confiscated drug,
but this was contradicted by PO2 Pascua who

Page 18 of 30
 testified that he was the one who was in
possession of the illegal drug which was the
subject of sale when it was brought to the police
station.

The fundamentals of a criminal

prosecution were, indeed, disregarded. In
considering a criminal case, it is critical to start
with the law’s own starting perspective on the
status of the accused – in all criminal
prosecutions, he is presumed innocent of the
charged laid unless the contrary is proven
beyond reasonable doubt. The burden lies on
the prosecution to overcome such presumption
of innocence by presenting the quantum of
evidence required. To repeat, the prosecution
must rest on its own merits and must not rely
on the weakness of the defense. And if the
prosecution fails to meet the required amount
of evidence, the defense may logically not even
present evidence on its own behalf. In which
case, the presumption prevails and the accused
should necessarily be acquitted.

The prosecution failed to prove beyond

reasonable doubt the guilt of the two
accused. The rule that high respect must be
accorded the lower courts in their findings of
facts cannot be misused to diminish the
required evidence to overcome the presumption
of innocence of the accused as guaranteed by
the Constitution.”

In the case of Rodrigo Rontos v. People of the Philippines,

G.R. No. 1880024, 05 June 2013, the Honorable Supreme
Court held:

“However, on the basis of the

nonobservance of the rules of procedure for
handling illegal drug items, we resolve to acquit
petitioner on the ground of reasonable doubt.

In illegal drugs cases, the identity and

integrity of the drugs seized must be established
with the same unwavering exactitude as that
required to arrive at a finding of guilt. The case
against the accused hinges on the ability of the
prosecution to prove that the illegal drug

Page 19 of 30
 presented in court is the same one that was
recovered from the accused upon his arrest.

The procedure set forth in Section 21 of

R.A. 9165 is intended precisely to ensure the
identity and integrity of dangerous drugs seized.
This provision requires that upon seizure of
illegal drug items, the apprehending team
having initial custody of the drugs shall (a)
conduct a physical inventory of the drugs and
(b) take photographs thereof (c) in the presence
of the person from whom these items were
seized or confiscated and (d) a representative
from the media and the Department of Justice
and any elected public official (e) who shall all
be required to sign the inventory and be given
copies thereof.

This Court has emphasized the import of

Section 21 as a matter of substantive law that
mandates strict compliance. It was laid down by
Congress as a safety precaution against
potential abuses by law enforcement agents
who might fail to appreciate the gravity of the
penalties faced by those suspected to be
involved in the sale, use or possession of illegal
drugs. Under the principle that penal laws are
strictly construed against the government,
stringent compliance therewith is fully justified.

Here, the procedure was not observed at

all. Where it is clear that Section 21 was not
observed, as in this case, such noncompliance
brings to the fore the question of whether the
illegal drug items were the same ones that were
allegedly seized from petitioner.”

In the instant case, there is no dispute that the Inventory

and marking of the seized shabu was made without the
presence of the media and a representative of the Department
of justice. Thus, there is no issue as to the non-compliance with
the requirements of Section 21 of R.A. 9165 and Section 21 of
the Implementing Rules and Regulations of R.A. 9165.

In the case of Carlito Valencia v. People of the Philippines,

G.R. No. 198804, 22 January 2014, the Honorable Supreme
Court held:

Page 20 of 30
 “Although the Court has ruled that non-
compliance with the directives of Section 21,
Article II of R.A. No. 9165 is not necessarily fatal
to the prosecution’s case, the prosecution must
still prove that (a) there is a justifiable ground
for the non-compliance, and (b) the integrity
and evidentiary value of the seized items were
properly preserved. Further, the non-
compliance with the procedures must be
justified by the State’s agents themselves. The
arresting officers are under obligation, should
they be unable to comply with the procedures
laid down under Section 21, Article II of R.A. No.
9165, to explain why the procedure was not
followed and prove that the reason provided a
justifiable ground. Otherwise, the requisites
under the law would merely be fancy ornaments
that may or may not be disregarded by the
arresting officers at their own convenience.

Thus, in People v. Almorfe, the Court

stressed that:

Respecting the team’s non-compliance

with the inventory, not to mention the
photograph, requirement of R.A. No. 9165, the
same does not necessarily render void and
invalid the seizure of the dangerous drugs.
There must, however, be justifiable grounds to
warrant exception herefrom, and provided that
the integrity and evidentiary value of the seized
items are properly preserved by the
apprehending officer/s.

For the saving clause to apply, it is

important that the prosecution should explain
the reasons behind the procedural lapses and
that the integrity and value of the seized
evidence had been preserved:

x x x [N]on-compliance with the strict

directive of Section 21 of R.A. No. 9165 is not
necessarily fatal to the prosecution’s case;
police procedures in the handling of confiscated
evidence may still have lapses, as in the present
case. These lapses, however, must be
recognized and explained in terms of their
justifiable grounds and the integrity and

Page 21 of 30
 evidentiary value of the evidence seized must be
shown to have been preserved.

The arresting officers in this case tendered

no justification in court for their non-
compliance with the procedures. Indeed, a
thorough perusal of the records of this case
yielded no result as to any explanation or
justification tendered by the apprehending
officers as regards their non-compliance
with the procedures laid down under Section
21, Article II of R.A. No. 9165. It was thus a
grave error for the RTC and the CA to rule that
there was an unbroken chain of custody despite
the failure of the arresting officers to mark the
confiscated plastic sachets in the presence of
Valencia and to identify all the individuals who
took custody of the same from the time the said
plastic sachets were confiscated until the time
they were presented in the RTC.”

(Emphasis and underscoring supplied)

In the instant case, a perusal of the Sinumpaang Salaysay

ng Pag-Aresto executed by PO1 Rodrigo J. Nidoy24 would reveal
that PO1 Nidoy as the arresting officer and the one who
conducted the marking and the inventory did not make any
justification as to why there was no compliance with the
requirements of Section 21 of R.A. 9165 as to the presence of a
media and a representative of the DOJ. He also admitted during
his testimony that indeed there was no media and
representative from the DOJ, but offered no justification for
their absence.

In the case of People of the Philippines v. Ramil Doria Dahil

and Rommel Castro, G.R. No. 212196, 12 January 2015, the
Honorable Supreme Court held:

“xxx

The strict procedure under Section 21 of

R.A. No. 9165 was not complied with.

Although the prosecution offered

inevidence the Inventory of the Property Seized
signed by the arresting officers and Kagawad

24 Rollo, Pages 11-12

Page 22 of 30
 Pamintuan, the procedures provided in Section
21 of R.A. No. 9165 were not observed. The said
provision requires the apprehending team, after
seizure and confiscation, to immediately (1)
conduct a physically inventory; and (2)
photograph the same in the presence of the
accused or the person/s from whom such items
were confiscated and/orseized, or his/her
representative or counsel, a representative from
the media and the DOJ, and any elected public
official who shall be required tosign the copies
of the inventory and be given a copy thereof.

xxx

Notwithstanding the failure of the

prosecution to establish the rigorous
requirements of Section 21 of R.A. No. 9165,
jurisprudence dictates that substantial
compliance is sufficient. Failure to strictly
comply with the law does not necessarily render
the arrestof the accused illegal or the items
seized or confiscated from him inadmissible.
The issue of non-compliance with the said
section is not of admissibility, but of weight to
be given on the evidence. Moreover, Section 21
of the IRR requires "substantial" and not
necessarily "perfect adherence," as long as it
can be proven that the integrity and the
evidentiary value of the seized items are
preserved as the same would be utilized in the
determination of the guilt or innocence of the
accused.

To ensure that the integrity and the

evidentiary value of the seized items are
preserved, the proper chain of custody of the
seized items must be shown. The Court
explained in People v. Malillin how the chain of
custody or movement of the seized evidence
should be maintained and why this must be
shown by evidence, viz:

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.

Page 23 of 30
 It would include testimony about every link in
the chain, from the moment the item was picked
up to the time it is offered into 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.

In People v. Kamad, the Court identified

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 by the forensic chemist to the court.

xxx

The case of People v. Gutierrez also had

inadequate stipulations as to the testimony of
the forensic chemist. No explanation was given
regarding the custody of the seized drug in the
interim - from the time it was turned over to the
investigator up to its turnover for laboratory
examination. The records of the said case did
not show what happened to the allegedly seized
shabu between the turnover by the investigator
to the chemist and its presentation in court.
Thus, since there was no showing that
precautions were taken to ensure that there
was no change in the condition of that object
and no opportunity for someone not in the
chain to have possession thereof, the accused
therein was likewise acquitted.”

Page 24 of 30
 In the case at bar, it is worth reiterating that there was
non-compliance with the requirement on the presence of the
media and a representative from the DOJ during the marking
and inventory taking. Also worth emphasizing is the fact that
at the inventory taking, it was only PO1 Nidoy who conducted
the same and in the presence only of a Barangay Kagawad. The
said Barangay Kagawad, however, did not testify to authenticate
the acts of marking and inventory made by PO1 Nidoy. This
alone would affect the integrity of the evidence as there is no
other person to attest as to the handling of the seized shabu
from the time they were confiscated from accused-appellant
Gamit until the inventory taking.

Furthermore, there was no witness who corroborated the

testimony of PO1 Nidoy as to how he handled the seized shabu
from the time he left the place of inventory until the same was
turned over to the investigator, PO1 Lodjie Coz.

While the testimonies of PO1 Coz (Investigator) and PSI

Rosales (Forensic Chemist) were stipulated on, there was no
stipulation as to the precautions taken to ensure that there was
no change in the condition of the seized shabu and no
opportunity for someone not in the chain to have possession
thereof.

Although accused-appellant Gamit interposed the defense

of “denial,” the same is not necessarily weak.

In the case of People v. Alberto, G.R. No. 179717, 05

February 2010, the Honorable Supreme Court held that:

"A defense of denial which is unsupported

and unsubstantiated by clear and convincing
evidence becomes negative and self-serving,
deserving no weight in law, and cannot be given
greater evidentiary value over convincing,
straight forward and probable testimony on
affirmative matters."

In the present case, the denial of the accused as to the

alleged charges, is supported by clear and convincing evidence.

It is worthy to point out that in the Sinumpaang Salaysay

ng Pag-aresto executed by PO1 Rodrigo J. Nidoy, Jr.25 and in
his direct testimony, he declared that accused-appellant Gamit
took out the buy-bust money from his shorts.

25 Rollo, pages 11-12

Page 25 of 30
 Thus, in the testimony of accused-appellant Gamit, he
presented the boxer shorts he was wearing at the time of his
arrest. After pictures at the time of the arrest were shown to
the prosecutor as well as the boxer shorts presented by the
accused-appellant, the prosecutor manifested that the boxer
shorts appears to be the same as that in the pictures.26

The more pertinent portions of the Manifestation of the

Prosecutor and testimony of accused-appellant Gamit as
appearing in the Transcript of Stenographic Notes in the
hearing dated 13 April 2021 are herein quoted, to wit:

Page 6

“Q: By the way, Mister witness, what

were you wearing that night of December 3,
2020?

A: I was wearing sleep wear.

Q: Could you describe what you were

wearing that time, Mister witness?

A: I was wearing boxer shorts and t-

shirts.

Page 7

Q: I am showing you a picture

marked as Exhibits “K”, “K-1” and “K-2”, could
you look at this pictures and tell this court if
this is the clothes you were wearing on the night
of December 3, 2020?

PROS. ORIBE:

May I object, your Honor, to the

presentation of the photograph because there
was no basis, your Honor.

COURT:

Whose picture is that? Because you

mentioned Exhibits “K” and “K-1”.

26 Rollo, page 22

Page 26 of 30
 ATTY. ROMAN:

Yes, your honor.

COURT:

That was your documentary evidence,

prosec during the inventory?

PROS. ORIBE:

Yes, your Honor.

COURT:

Alright, answer now.

PROS. ORIBE:

I’m withdrawing my objection, your Honor.

WITNESS:

A. Yes, ma’am.

Page 8

ATTY. ROMAN:

Q: Based on the accusation of the

arresting officers against you Mister witness, he
instructed you to take out from your pocket the
money allegedly given to you on December 3,
2020. What can you say about this allegation?

A: That allegation is not true because

my shorts I was wearing that night has no
pockets.

Q: Do you have that shorts with your

right now, Mister witness?

A: Yes, ma’am.

COURT INTERPRETER:

Page 27 of 30
 The witness has produced and exhibiting
boxer shorts color pink with treat or trick
Holloween pictures.

ATTY. ROMAN:

May I request, your Honor, the

examination of the shorts by the prosecution
just to show and compare with the pictures
your Honor.

PROS. ORIBE:

The printing appears to be the same, but I

cannot determine, your Honor, if there was not
pocket. Although, the one presented has no
pockets, but the pictures does not depict only
the printing of the short pants.

xxx”

Based on the stipulation, the boxer shorts presented

before the trial court had the same printing as that in the
pictures, and the one presented before the trial court had no
pockets.

This boxer evidence alone is clear and convincing

evidence that accused-appellant Gamit was not subject to a
legitimate buy-bust operation but was a victim of a frame up.
The said evidence negates the testimony of PO1 Nidoy that
the alleged buy bust money came from the pocket of the
shorts of accused-appellant Gamit, as clearly the shorts worn
as shown by the pictures27 and the object evidence itself had
no pocket at all.

All told, the accused should be acquitted.

PRAYER

WHEREFORE, premises considered, it is respectfully

prayed that the Judgment dated 15 October 2021 rendered by
the Regional Trial Court of Isog City, Branch 88 be REVERSED
and SET ASIDE and a new one be entered ACQUITTING

27 Rollo, page 22

Page 28 of 30
Accused-Appellant Pedro Gamit, and thereafter ordering his
release from detention.

Other reliefs, just and equitable under the circumstances

are likewise prayed for.

22 October 2021, Isog City.

WHITE AND ASSOCIATES LAW OFFICE

Counsel for Accused-Appellant Pedro Gamit
Third Floor Cannabis Building,
No. 1888 Crystal Street,
Los Cabos, Isog City
Tel Nos. (012) 750-4439; (012)881-7629

by:

JEANNE THERESE V. GULEN

IBP No. 09572/ 01-13-11 Isog City
PTR No. 5330802/ 01-08-16 Isog City
Roll No. 47842
MCLE Compliance No. IV-0009973
December 28, 2021

Copy Furnished:

OFFICE OF THE SOLICITOR GENERAL

Counsel for the People of the Philippines
Amorsolo Street, Legaspi Village,
Makati City

REGIONAL TRIAL COURT OF ISOG CITY

BRANCH 88
Hall of Justice, Isog City

Page 29 of 30
 EXPLANATION

That the foregoing Appellant’s Brief is being served

through registered mail with return card due to distance and
lack of manpower to effect personal service.

JEANNE THERESE V. GUELEN

Page 30 of 30