So the People Will Know

Atty. Edmundo Magpantay, Jr. - Tau Kappa Phi

A “buy-bust operation” is a form of entrapment employed by peace officers to catch a malefactor in flagrante delicto. It has been defined as the employment of such ways and means for the purpose of trapping or capturing a lawbreaker (People v. Rolando Aspiras, G.R. No. 138382-84, 12 February 2002). It is a procedure sanctioned by law and evidences obtained in the course thereof are admissible in evidence.

However, because of the built-in danger for abuse that a “buy-bust operation” carries, the Supreme Court urged the courts to be extra vigilant in trying drug cases, viz: “By the very nature of anti-narcotics operations, the need for entrapment procedures, the use of shady characters as informants, the ease with which sticks of marijuana or grams of heroin can be planted in pockets of or hands of unsuspecting provincial hicks, and the secrecy that inevitably shrouds all drug deals, the possibility of abuse is great. Thus, courts have been exhorted to be extra vigilant in trying drug cases lest an innocent person is made to suffer the unusually severe penalties for drug offenses” (People v. Tan, G.R. No. 133001, 14 December 2000, citing People v. Gireng, 241 SCRA 11).

Impelled by the reported abuses committed during “buy-bust operations”, Congress enacted Republic Act No. 9165, also known the “Comprehensive Dangerous Drugs Act of 2002”, which placed upon law enforcers the duty to establish the chain of custody of the seized drugs to ensure the integrity of the corpus delicti or the dangerous drugs seized in the course of the operation. Through proper handling, storage, labeling, and recording, the identity of the seized drugs is insulated from doubt from their confiscation up to their presentation in court.

The rule governing the specific procedure with respect to the seizure and custody of drugs is found in Section 21(a) of the law that states:

“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:

a) 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 persons 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.” (Emphasis Supplied)

Compliance with the foregoing rule is mandatory. Hence, immediately after the seizure and confiscation of the illicit drugs, the apprehending officers must physically inventory and photograph the seized drugs in the presence of the accused or the persons 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.

The phrase “immediately after the seizure and confiscation” means “the scene of the crime or the place where the alleged dangerous drugs were seized and confiscated and not in the police headquarters where they were subsequently brought and marked”. This is the clear mandate of People v. Albert Casimiro y Serillo, G.R. No. 146277, 20 June 2002; People v. Tokohisa Kimura & Akira Kizaki, G.R. No. 130805, 27 April 2004; People v. Gerardo Orteza, G.R. No. 173051, 31 July 2007; People v. Allan Nazareno y Caburatan, G.R. No. 174771, 11 September 2007; People v. Geraldine Magat y Paderon, G.R. No. 179939, 29 September 2008; and People v. Salvador Sanchez y Espiritu, G.R. No. 175832, 15 October 2008.

At any rate, the issue concerning the place where the seized items must be inventoried and photographed has long been settled – even before the passage of Republic Act No. 9165 – by the Supreme Court in People v. Laxa, 414 Phil. 156 (2001), and similar other cases.

In the case of the so-called “Alabang Boys”, the alleged “buy-bust operations” conducted by the Philippine Drug Enforcement Agency (PDEA) took place in Ayala Alabang Village, Muntinlupa City and at Araneta Center, Cubao, Quezon City. However, per allegations made by the PDEA people in their complaint-affidavit, after conducting the “buy-bust operations” they immediately went back to PDEA office in Quezon City where they inventoried and photographed the items seized from respondents Brodett, Joseph, and Tecson in the presence of barangay officials from Barangay Pinyahan, Quezon City. Undoubtedly, this constitutes a blatant violation of the procedural requirements of Section 21 of Republic Act No. 9165 that, pursuant to the abovementioned cases, is fatal as it renders the drugs seized inadmissible in evidence (People v. Mark Dela Cruz, G.R. No. 181545, 08 October 2008 citing Lopez v. People, Infra).

The dismissal of the case against the Alabang Boys is but proper as it is in accordance with the law and established precedents. Corollary, the PDEA people cannot hide under the protective mantle of “regularity in the performance of official duty” because, as earlier stated, the “buy-bust operation” is irregular at the outset. Said the Supreme Court in People v. Salvador Sanchez y Espiritu, supra: “An effect of this lapse, as we held in Lopez v. People (G.R. No. 172953, 30 April 2008), is to negate the presumption that official duties have been regularly performed by the police officers. Any taint of irregularity affects the whole performance and should make the presumption unavailable. There can be no ifs and buts regarding this consequence considering the effect of the evidentiary presumption of regularity on the constitutional presumption of innocence.” In this connection, we were reminded what the Court said in People v. Tantiado, 213 SCRA 365, and People v. Donald Dismukey y Pamarito, G.R. No. 108453, 11 July 1994, thus: “law enforcement agencies, especially those assigned to enforce the Dangerous Drugs Act, to carefully prepare their plans for buy-bust operations and to efficiently and effectively carry them out, ever mindful of the possibility that their blunders may not only frustrate the efforts to eradicate the drug menace but worse, embolden drug lords, pushers or users into defying the authorities.”

Clearly then, since the alleged evidence against the Alabang Boys are inadmissible in evidence for having been obtained in violation of Section 21(a) of Republic Act No. 9165, “the public prosecutor, by the nature of his office, is under no compulsion to file a criminal information where no clear legal justification has been shown, and no sufficient evidence of guilt nor prima facie case been presented” (Tam Wing Tak v. Makasiar, 350 SCRA 475).

The government’s drive against illegal drugs deserves everybody’s support. But it is precisely when the government’s purposes are beneficent that we should be most on our guard to protect people’s rights. As Justice Brandeis warned long ago, “the greatest dangers to liberty lurk in the insidious encroachment by men of zeal, well-meaning but without understanding” (People v. Tony Pedronan y. Limmayog, G.R. No. 148668, 17 June 2003).

The TAU KAPPA PHI upholds the rule of law. Therefore, we, the members of this exclusive fraternal order, decry the so-called “psy-war” launched by the PDEA as it is against legal processes. Precisely, laws, rules, and regulations were enacted, and Court decisions were promulgated for everyone to respect. If PDEA feels aggrieved by the result of the preliminary investigation, instead of launching a media blitz and insinuating that money changed hands in the course of the investigation and/or during the inquest proceedings, it should have exhausted the remedies under the law. Let justice takes it course…

Note: Bro. Atty. Edmundo “Boy” Magpantay is presently a Senior State Prosecutor. He joined Tau Kappa Phi Fraternity in 1987. He graduated from Far Eastern University – Institute of Law and passed the 1995 Bar Examinations. He once served as President of the FEU Law Student Council.

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