SECOND DIVISION

[G.R. No. 242273. November 23, 2020.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NICO

MAZO y YBAÑEZ and JOEY DOMDOMA y ABLETES, accused-
appellants.

RESOLUTION

LOPEZ, J :
p

The conviction of Nico Mazo y Ybañez (Nico) for illegal sale and
possession of dangerous drugs and Joey Domdoma y Abletes (Joey) for
illegal sale of dangerous drugs, is the subject of review in this Motion for
Reconsideration 1 assailing the Court's Resolution 2 dated July 15, 2019,
which affirmed the Court of Appeals' (CA) Decision 3 dated May 16, 2018 in
CA-G.R. CR-HC No. 09348. HTcADC

ANTECEDENTS
On January 12, 2017, the Station Anti-Illegal Drugs-Special Operations
Task Group planned a buy-bust operation against Nico based on an
information that he is selling drugs in Barangay La Paz, Makati City. After the
briefing, PS/Insp. Valmark C. Funelas designated PO1 Andrew O. Amante
(PO1 Amante) as poseur-buyer, and PO1 Nathaniel Maculi and PO1 Stephanie
Limjap (PO1 Limjap), as back-ups. 4
About midnight the following day, the entrapment team together with
the informant went to Sunrise Street, Barangay La Paz, Makati City. Thereat,
they saw two men and one woman standing at the street. The informant told
PO1 Amante, "[ s]ir yung matangkad na bata[,] si Nico yun, yung dalawang
kasama nya[,] bata nya yun." The informant then introduced PO1 Amante to
Nico as his friend who would buy P500.00 worth of shabu . Thus, Nico ordered
his companions and said, "Joey kunin mo ang pera[ , ] bigay mo kay Joy."
Accordingly, PO1 Amante gave the buy-bust money to Joey who handed it to
Joy. 5 Thereafter, Nico retrieved from his left pocket three plastic sachets
containing white crystalline substance. Nico picked one sachet and uttered,
"Joey, bigay mo 'to kay pare ko.'" Joey got the sachet (later marked with
"NICO"), and handed it to PO1 Amante. At that moment, PO1 Amante
scratched his cheek which served as the pre-arranged signal that the
transaction has been consummated. 6
The rest of the team rushed in and arrested Nico, Joey and Joy. After
frisking the suspects, PO1 Amante recovered from Nico two plastic sachets
containing white crystalline substance (later marked with "NICO-1" and
"NICO-2"), while PO1 Limjap found from Joy the buy-bust money. The police
officers proceeded to the barangay hall where they conducted an inventory
and photograph of the seized items in the presence of Barangay Kagawad
Christopher Cabo. 7 After investigation, the suspects were identified as Nico
Mazo y Ibañez @ "Nico," Joey Domdoma y Abletes @ "Joey," and Mary Joy
Garcia y Vitug @ "Joy." 8
Afterwards, PO1 Amante personally delivered the confiscated items to
PCI Ofelia Lirio Vallejo of the Southern Police District Crime Laboratory Office
for examination. 9 The examination of the substance yielded positive results
for methamphetamine hydrochloride. 10 Nico, Joey and Joy were then
charged with violations of Sections (Sec.) 5 and 11, Article II of Republic Act
(RA) No. 9165 11 before the Regional Trial Court (RTC), to wit:
[Criminal Case No. R-MKT-17-00179-CR for illegal sale of dangerous
drugs against Nico. Joey and Joy]
On the 13th day of January 2017, in the city of Makati, the [sic ]
Philippines, accused, mutually helping and confederating with one
another, not being lawfully authorized to possess or otherwise use
any dangerous drug and without the corresponding license or
prescription, did then and there willfully, unlawfully and feloniously
sell, distribute and transport zero point twelve (0.12) gram of
Methamphetamine Hydrochloride, a dangerous drug, in consideration
of the amount of Php500.
CONTRARY TO LAW. 12
[Criminal Case No. R-MKT-17-00180-CR for illegal possession of
dangerous drugs against Nico]
On the 13th day of January 2017, in the city of Makati, the [sic ]
Philippines, accused, mutually helping and confederating with one
another, not being lawfully authorized to possess or otherwise use
any dangerous drug and without the corresponding license or
prescription, did then and there willfully, unlawfully and feloniously
have in their possession, direct custody and control three (3) small
heat-sealed plastic transparent sachets containing a total of zero
point twenty-two (0.22) gram of Methamphetamine Hydrochloride, a
dangerous drug.
CONTRARY TO LAW. 13
Nico, Joey and Joy denied the accusations. Nico claimed that he was
with Joy sleeping inside their house when several men barged in and brought
them to the police station. 14 On the other hand, Joey narrated that he was
on his way to buy food when a policeman arrested him. 15
On March 29, 2017, the RTC convicted Nico and Joey of illegal sale of
dangerous drugs. Also, it held Nico guilty of illegal possession of dangerous
drugs. The RTC gave credence to the prosecution's version as to the
transaction that transpired between them and the poseur-buyer. However,
Joy was acquitted, 16 thus:
WHEREFORE, in view of the foregoing, judgment is hereby
rendered as follows:
1. Â In Criminal Case No. R-MKT-17-0[0]179-CR, the court
finds accused, Nico Mazo y Ybañez and Joey Domdoma y Abletes,
GUILTY beyond reasonable doubt of the crime of violation of Section
5, Article II, R.A. No. 9165 and sentences each of them to suffer the
 penalty of life imprisonment and to pay a fine of Five Hundred
Thousand Pesos ([P]500,000.00). On the other hand, the court
ACQUITS their co-accused, Mary Joy Garcia y Vitug, of the offense
charged on reasonable doubt.
2. Â In Criminal Case No. R-MKT-17-00180-CR, the court
finds accused Nico Mazo y Ybañez, GUILTY beyond reasonable doubt
of the crime of violation of Section 11, Article II, R.A. No. 9165 and
sentences him to suffer the penalty of imprisonment of twelve (12)
years and one (1) day, as minimum, to fourteen (14) years and eight
(8) months, as maximum, and to pay a fine of Three Hundred
Thousand Pesos ([P]300,000.00).
xxx xxx xxx
SO ORDERED. 17

Aggrieved, Nico and Joey elevated the case to the CA docketed as CA-
G.R. CR-HC No. 09348. They argued that no actual buy-bust operation
transpired and that they were framed-up. Moreover, the apprehending
officers did not comply with the chain of custody requirement. 18 On May 16,
2018, the CA affirmed the RTC's findings and ruled that the prosecution
preserved the integrity and evidentiary value of the dangerous drugs, thus:
From the testimony of PO1 Amante, the prosecution established
that he had the custody of the drug seized from accused-appellants
from the moment they were arrested, during the time that they were
transported to the police station, and up to the time that the drug was
submitted to the crime laboratory for examination. The identification
of the seized items in court by the same witness, as well as all the
other documentary evidence (except the Inventory Receipt) and the
testimony of the forensic chemist, who examined the subject drugs
and personally brought the said illegal drugs to the trial court, were
also stipulated by the parties. It is therefore safe to conclude that, to
the unprejudiced mind, the testimonies show without a doubt that the
evidence seized from the accused-appellant at the time of the buy-
bust operation was the same one tested, introduced, and testified to
in court. As aptly ruled by the trial court:CAIHTE

The unbroken chain of custody was established in

the instant cases through the following link[s]: (1) PO1
Andrew Amante recovered and marked the sachets
containing white crystalline substance with "NICO,"
"NICO-1," "NICO-2"; (2) a request for laboratory
examination of the seized items was signed by PO3
Voltaire Esguerra, the investigator on case to whom the
subject pieces of evidence were presented by PO1
Amante after the inventory; (3) the delivery by PO1
Andrew Amante of the same items to the Southern Police
District Crime Laboratory to PCI Ofelia Lirio Vallejo who
received the same from Amante: [4] Physical Science
Report No. D-103-17 was prepared by PCI Ofelia Lirio
Vallejo which confirmed after due examination that the
marked items seized from the accused were shabu ; and
[5] the eventual, presentation and identification of the
items which were brought officially to the court by PCI
 Ofelia Lirio Vallejo and marked as Exhibits "V" to "X."
xxx xxx xxx
WHEREFORE, the appeal is DENIED. The Decision dated March
29, 2017 of the Regional Trial Court, Branch 65, Makati City, in
Criminal Case Nos. R-MKT-17-00179-CR and R-MKT-17-00180-CR, is
hereby affirmed.
SO ORDERED. 19

On July 15, 2019, we dismissed the appeal of Nico and Joey for their
failure to show how the CA committed any reversible error. Aggrieved, they
sought a reconsideration arguing that the police officers did not observe the
proper handling and custody of the seized items.
RULING
We acquit.
In illegal sale and possession of dangerous drugs, the contraband itself
constitutes the very corpus delicti of the offenses and the fact of its
existence is vital to a judgment of conviction. 20 Thus, it is essential to
ensure that the substance recovered from the accused is the same
substance offered in court. 21 Indeed, the prosecution must satisfactorily
establish the movement and custody of the seized drug through the
following links: (1) the confiscation and marking of the specimen seized from
the accused by the apprehending officer; (2) the turnover of the seized item
by the apprehending officer to the investigating officer; (3) the investigating
officer's turnover of the specimen to the forensic chemist for examination;
and, (4) the submission of the item by the forensic chemist to the court. 22
Here, the records reveal a broken chain of custody.
The first stage in the chain of custody is the marking of dangerous
drugs which is indispensable in the preservation of their integrity and
evidentiary value. The marking operates to set apart as evidence the
dangerous drugs from other materials, and forestalls switching, planting, or
contamination of evidence. The succeeding handlers of dangerous drugs will
also use the marking as reference. 23 In People v. Baculio , n  24 this Court
ruled that the authorities did not comply with the chain of custody
requirement absent definite statement as to where the marking of the seized
items took place. In that case, the joint affidavit of the arresting officers and
their testimonies failed to point the actual place of marking. In this case, the
prosecution, likewise, failed to account the details on how the confiscated
items were marked. PO1 Amante testified that he marked the sachet of
shabu he bought with "NICO," and the two sachets he recovered during
frisking with "NICO-1" and "NICO-2." Yet, there was no showing where and
when the seized drugs were marked. PO1 Amante simply stated in his
affidavit that the drugs were " later marked" 25 without providing the details
surrounding the initial handling of the drugs. Neither was the issue clarified
during PO1 Amante's testimony in open court. In other words, the place of
marking remains unknown. Corollarily, lacking material details regarding the
marking of the seized drugs, the prosecution failed to remove any suspicion
of tampering, switching, or planting of evidence.
 Similarly, the chain of custody rule requires the conduct of inventory
and photograph of the seized items immediately after seizure and
confiscation, which is intended by law to be made immediately after, or at
the place of apprehension. If not practicable, the implementing rules allow
the inventory and photograph as soon as the buy-bust team reaches the
nearest police station, or the nearest office of the apprehending team. 26 In
this case, the inventory and photograph of the confiscated items were not
made immediately at the place of arrest but at the barangay hall. The police
officers only made a general statement that the place of arrest was hostile
without elaborating any threat on their security. 27
Lastly, the absence of a representative of the National Prosecution
Service or the media as an insulating witness to the inventory and
photograph of the seized items, puts serious doubt as to the integrity of the
confiscated items. 28 Admittedly, only an elected public official signed the
inventory of evidence. There was no attempt on the part of the entrapment
team to comply with the law and its implementing rules despite the planned
buy-bust operation. The operatives also failed to provide any justification
showing that the integrity of the evidence had all along been preserved.
Worse, it appears that the barangay official was absent when the drugs were
seized. The prosecution stipulated that Kagawad Cabo "had no personal
knowledge as to the circumstances regarding the alleged confiscation of the
items x x x." 29 On this point, it must be stressed that the presence of the
witnesses must be secured not only during the inventory but, more
importantly, at the time of the warrantless arrest. It is at this point in which
the presence of the witnesses is most needed, as it is their presence at the
time of seizure and confiscation that would belie any doubt as to the source,
identity, and integrity of the seized drug. 30
We emphasized that the presence of the insulating witnesses is the
first requirement to ensure the preservation of the identity and evidentiary
value of the seized drugs. 31 In People v. Lim , 32 we explained that in case
the presence of any, or all the insulating witnesses was not obtained, the
prosecution must allege and prove not only the reasons for their absence,
but also the fact that earnest efforts were made to secure their attendance,
thus:
It is well to note that the absence of these required witnesses does
n o t 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 of RA 9165 must be adduced. In People v. Umpiang , the Court held
that the prosecution must show that earnest efforts were employed
in contacting the representatives enumerated under the law for "a
sheer statement that representatives were unavailable without so
much as an explanation on whether serious attempts were employed
to look for other representatives, given the circumstances is to be
regarded as a flimsy excuse." Verily, mere statements of
unavailability, absent actual serious attempts to contact the required
witnesses are unacceptable as justified grounds for non-compliance.
These considerations arise from the fact that police officers are
 ordinarily given sufficient time — beginning from the moment they
have received the information about the activities of the accused until
the time of his arrest — to prepare for a buy-bust operation and
consequently, make the necessary arrangements beforehand
knowing full well that they would have to strictly comply with the set
procedure prescribed in Section 21 of RA 9165. As such, police
officers are compelled not only to state 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 circumstances, their actions were reasonable. 33
(Emphases in the original and citations omitted.)aScITE

Accordingly, in People v. Caray , 34 we ruled that the corpus delicti

cannot be deemed preserved absent any acceptable explanation for the
deviation from the procedural requirements of the chain of custody rule
under Sec. 21 of RA No. 9165. In Matabilas v. People , 35 sheer statements of
unavailability of the insulating witnesses, without actual serious attempt to
contact them, cannot justify non-compliance. In People v. Aure , 36 the
inventory was conducted in the presence of a media representative only,
and the policemen offered a perfunctory excuse that their team leader
invited the three required witnesses, but to no avail. In People v. Dela Torre ,
37 the prosecution failed to explain why only an elected public official

witnessed the inventory and photography of the seized items. In People v.

De Lumen, 38 the prosecution did not bother to explain the absence of the
representatives from the Department of Justice and the media during the
physical inventory. In these cases, the integrity and evidentiary value of the
seized items have been compromised for failure of the prosecution to justify
non-compliance with the chain of custody requirement, or to show that it
exerted earnest efforts in securing the required witnesses. We find no
reason to deviate from these rulings.
Lastly, it must be stressed that while the law enforcers enjoy the
presumption of regularity in the performance of their duties, this
presumption cannot prevail over the constitutional right of the accused to be
presumed innocent, and it cannot by itself constitute proof of guilt beyond
reasonable doubt. The presumption of regularity is disputable and cannot be
regarded as binding truth. 39 Indeed, when the performance of duty is
tainted with irregularities, such presumption is effectively destroyed. 40
We reiterate that the provisions of Sec. 21 of RA No. 9165 embody the
constitutional aim to prevent the imprisonment of an innocent man. The
Court cannot tolerate the lax approach of law enforcers in handling the very
corpus delicti of the crime. Hence, Nico and Joey must be acquitted of the
charges against them given the prosecution's failure to prove an unbroken
chain of custody.
FOR THESE REASONS, the motion for reconsideration is GRANTED.
The Court's July 15, 2019 Resolution is REVERSED and SET ASIDE. Nico
Mazo y Ybañez and Joey Domdoma y Abletes are ACQUITTED in Criminal
Case Nos. R-MKT-17-00179-CR and R-MKT-17-00180-CR, and are ORDERED
IMMEDIATELY RELEASED from detention, unless they are being lawfully
held for another cause. Let entry of judgment be issued immediately.
 Let a copy of this Resolution be furnished to the Director of the Bureau
of Corrections, Muntinlupa City for immediate implementation. The Director
is directed to report to this Court the action taken within five days from
receipt of this Resolution. DETACa

SO ORDERED.
Perlas-Bernabe, Gesmundo, Hernando * and Rosario, ** JJ., concur.
Â
Footnotes

* Designated additional Member in lieu of Associate Justice Amy C. Lazaro-Javier

per raffle dated November 9, 2020.

** Designated additional Member per Special Order No. 2797 dated November 5,
2020.

1. Rollo , pp. 41-58.

2. Id. at 39-40.

3. Id. at 2-16; penned by Associate Justice Ma. Luisa C. Quijano-Padilla, with the
concurrence of Associate Justices Fernanda Lampas Peralta and Amy C.
Lazaro-Javier (now a Member of this Court).

4. Id. at 4.

5. Id. at 4-5. The buy-bust money is a 500-peso bill with SN# QJ113880; records, p.
21.

6. Id. at 5.

7. Records, pp. 123-124.

8. Id. at 142.

9. Id. at 130, 132.

10. Id. at 101.

11. AN ACT INSTITUTING THE COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002,

REPEALING REPUBLIC ACT NO. 6425, OTHERWISE KNOWN AS THE
DANGEROUS DRUGS ACT OF 1972, AS AMENDED, PROVIDING FUNDS
THEREFOR, AND FOR OTHER PURPOSES; signed on June 7, 2002.

12. Records, p. 1.

13. Id. at 41.

14. TSN, March 22, 2017, pp. 19-31; records, pp. 247-259.

15. TSN, March 22, 2017, pp. 3-18; id. at 231-246.

16. CA rollo, pp. 61-68; penned by Presiding Judge Edgardo M. Caldona.

17. Id. at 67-68.

18. Id. at 33-59.

19. Rollo , pp. 14-16.

20. People v. Partoza, 605 Phil. 883, 890 (2009). See also People v. Cariño , G.R.
No. 233336, January 14, 2019; People v. Crispo, 828 Phil. 416, 436 (2018);
People v. Sanchez, 827 Phil. 457, 472 (2018); People v. Magsano , 826 Phil.
947, 964-965 (2018); People v. Manansala , 826 Phil. 578, 592 (2018); People
v. Miranda, 824 Phil. 1042, 1058 (2018); and People v. Mamangon, 824 Phil.
728, 742 (2018).

21. People v. Ismael , 806 Phil. 21, 33 (2017).

22. People v. Bugtong , 826 Phil. 628, 638-639 (2018).

23. People v. Ismael , 806 Phil. 21, 31-32 (2017), citing People v. Gonzales , 708
Phil. 121, 130-131 (2013).

24. G.R. No. 233802, November 20, 2019.

25. Records, p. 141.

26. People v. Tomawis , 830 Phil. 385, 405 (2018).

27. Records, p. 142.

28. The offense was allegedly committed on January 13, 2017. Hence, the
applicable law is RA No. 9165, as amended by RA No 10640, entitled "An Act
to Further Strengthen the Anti-Drug Campaign of the Government, Amending
for the Purpose Section 21 of Republic Act No. 9165, Otherwise Known as the
'Comprehensive Dangerous Drugs Act of 2002'"; approved on July 15, 2014,
which took effect on July 23, 2014. See also OCA Circular No. 77-2015 dated
April 23, 2015. As amended, it is now mandated that the conduct of physical
inventory and photograph of the seized items must be in the presence of (1)
the accused or the person/s from whom such items were confiscated and/or
seized, or his/her representative or counsel; (2) with an elected public official;
and (3) a representative of the National Prosecution Service or the media
who shall sign the copies of the inventory, and be given a copy thereof.

29. Records, p. 93.

30. People v. Tomawis , supra note 26, at 409.

31. People v. Flores, G.R. No. 241261, July 29, 2019; People v. Rodriguez , G.R. No.
233535, July 1, 2019; and People v. Maralit , G.R. No. 232381, August 1, 2018.

32. G.R. No. 231989, September 4, 2018.

33. Id.

34. G.R. No. 245391, September 11, 2019.

35. G.R. No. 243615, November 11, 2019.

36. G.R. No. 237809, January 14, 2019.

37. G.R. No. 238519, June 26, 2019.

38. G.R. No. 240749, December 11, 2019.

39. People v. Cañete , 433 Phil. 781, 794 (2002); and Mallillin v. People, 576 Phil.
576, 593 (2008).

40. People v. Dela Cruz, 589 Phil. 259, 272 (2008).

n Note from the Publisher: Copied verbatim from the official document.