REPUBLIC OF THE PHILIPPINES

REGIONAL TRIAL COURT

TENTH JUDICIAL REGION
BRANCH 10
MALAYBALAY CITY

PEOPLE OF THE PHILIPPINES, CRIMINAL CASE NO. 66434-17

PLAINTIFF,

-VERSUS- FOR VIOLATION OF R.A. 9165

CARLOS LUCERO,
ACCUSED,
X---------------------------------X

DEMURRER TO EVIDENCE

THE ACCUSED, CARLOS LUCERO, through the undersigned

counsel, most respectfully submits its Demurrer to Evidence and avers:

BASIS FOR THE DEMURRER

It is incumbent upon the prosecution to adduce evidence sufficient to

prove beyond reasonable doubt (a) the commission of the crime, and (b) the
precise degree of participation therein by the accused (Gutib vs. Court of
Appeals, 312 SCRA 365 at p.187). The charges against an accused must be
dismissed if there is no competent or sufficient evidence adduced that would
sustain the charges against him, should the same be raised in a demurrer to
the evidence. Section 23, Rule 119 of the Revised Rules of Criminal
Procedure provides:

Sec. 23 After the prosecution rests its case, the court may dismiss the
action on the ground of insufficiency of evidence (1) on its own initiative
after giving the prosecution the opportunity to be heard or (2) upon
demurrer to evidence filed by the accused with or without leave of court.

x x x

It is well-settled rule that conviction for a criminal offense should be

based on clear and positive evidence and not on mere assumption.
(Gaerlan vs. CA 179 SCRA 20). The burden lies upon the prosecution to
prove the guilt of the accused beyond reasonable doubt rather that upon the
accused to prove that he is in fact innocent. (People vs. Lati, 184 SCRA
336). Failing in this, the presumption of innocence will prevail. (Sec. 1 (a)
Rule 115).

ARGUMENT/DISCUSSION

The PNP officers who took part in the buy-bust operation failed to
observe the mandatory procedures provided by law which is essential to
validate the said operation. Section 21 of R.A. 9165 provides:

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 officer/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 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 of and custody
over said items;

(b) Within twenty-four (24) hours upon confiscation/seizure of

dangerous drugs, plant sources of dangerous drugs,
controlled precursors and essential chemicals, as well as
instruments/ paraphernalia and/or laboratory equipment,
the same shall be submitted to the PDEA Forensic
Laboratory for a qualitative and quantitative examination;

(c) A certification of the forensic laboratory examination

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

xxx

The prosecution failed to show that the marking of the evidence was
made in the presence of the accused, a representative of the media and of the
Department of Justice and any elected public official who shall be required
to sign the copies of the given inventory. Neither did it show justifiable
grounds for its non-compliance with the mandatory procedure. To impose
benediction on such shoddy police work, absent exempting circumstances,
would only spawn further abuses (People v. Arnel Bentacan Navarette,
G.R. No. 185211).

SPO2 Sudaria alleged that the alleged shabu was submitted to the
crime laboratory more than twenty-four (24) hours from the time it was
seized. There is clearly a blatant deviation from the mandatory procedure
postulated in paragraph (b) of Section 21 of R.A. 9165 which provides that
the confiscated dangerous drugs shall be submitted within twenty-four (24)
hours from the time of seizure to the PDEA Forensic Laboratory for a
qualitative and quantitative examination. There was no explanation showing
justifiable grounds to exempt it complying with the procedure.

A buy-bust operation gave rise to the present case. While this kind of
operation has been proven to be an effective way to flush out illegal
transaction that are otherwise conducted covertly and in secrecy, a buy-bust
operation has a significant downside that has not escaped the attention of
the framers of the law. It is susceptible to police abuse, the most notorious of
which is its use as a tool for extortion (People v. Garcia, 580 SCRA 259, at
pp. 266-267). By the very nature of anti-narcotic 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 drugs cases lest an innocent
person is made to suffer the unusually severe penalties for drug offenses.
Accordingly, specific procedures relating to the seizure and custody of drugs
have been laid down in the law (R.A. No. 9165) for the police to strictly
follow. The prosecution must adduce evidence that these procedures have
been followed in proving the elements of the defined offense (People v. Tan,
348 SCRA 116 at pp. 126-127).

The Supreme Court, in discussing the implications of the failure to

comply with Paragraph 1, Section 21 of R.A. 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 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.
(People v. Orteza, 528 SCRA 750 at pp. 758-759)

According to the Supreme Court, the step-by-step procedure outlined

under R.A. 9165 is a matter of substantive law, which cannot be simply
brushed aside as a simple procedural technicality. The provisions were
crafted by Congress as safety precautions to address potential police abuses,
especially considering that the penalty imposed may be life imprisonment
(People v. Umipang, G.R. No. 190321, April 25, 2012).
 Finally, it must be taken into consideration that the prosecution failed
to establish that at the time of the arrest of the accused, the arresting officers
informed the former of his constitutional rights enshrined in Section 12 of
Article III of the 1987 Philippine Constitution, which provides:

(1) Any person under investigation for the commission of an offense

shall have the right to be informed of his right to remain silent and to
have competent and independent counsel preferably of his own
choice. If the person cannot afford the services of counsel, he must be
provided with one. These rights cannot be waived except in writing
and in the presence of counsel.

xxx

(3)Any confession or admission obtained in violation of this or

Section 17 hereof shall be inadmissible in evidence against him.

xxx

In the case of Morales, Jr. v. Enrile, et al. G.R. No. L-61016 April 26,
1983, the Supreme Court laid down the procedure to be followed in
custodial investigations, to wit:

At the time a person is arrested, it shall be the duty of the

arresting officer to inform him of the reason for the arrest and he
must be shown the warrant of arrest, if any. He shall be informed of
his constitutional rights to remain silent and to counsel, and that any
statement he might make could be used against him. The person
arrested shall have the the right to communicate with his lawyer, a
relative, or anyone he chooses by the most expedient means by
telephone if possible or by letter or messenger. It shall be the duty of
the arresting officer to see to it that this is accomplished. No custodial
 investigation shall be conducted unless it be in the presence of
counsel engaged by the person arrested, by any person on his behalf,
or appointed by the court upon petition either of the detainee himself
or by anyone on his behalf. The right to counsel may be waived but
the waiver shall not be valid unless made with the assistance of
counsel. Any statement obtained in violation of the procedure herein
laid down, whether exculpatory or inculpatory, in whole or in part,
shall be inadmissible in evidence.

P R AYE R

WHEREFORE, premises considered, it is respectfully prayed before

the Honorable Court that this Demurrer to Evidence be granted and that the
criminal charge for violation of R.A. 9165 be DISMISSED.

Relief and other remedies equitable, just, and proper in the premises
are likewise prayed for.
Respectfully submitted, March 17, 2017, Malaybalay City, Bukidnon.

JANUS MARI AO ABAN

Counsel for the Accused
Malaybalay City, Bukidnon
Mobile Phone No.: (0906)859-7191
IBP Receipt No. 123545 Jan. 4, 2017, Bukidnon Chapter
PTR No. 7745, January 4, 2017, Malaybalay City, Bukidnon
Roll No. 405213 (April 2017)
MCLE V Certificate No. 000456 (May 23, 2017)

NOTICE

THE BRANCH CLERK OF COURT THE CITY PROSECUTOR

Regional Trial Court, Branch 10 Malaybalay City, Bukidnon
Malaybalay City, Bukidnon

GREETINGS:

PLEASE TAKE NOTICE that the undersigned counsel for the

accused will submit the foregoing Demurrer to Evidence for the
Consideration of the Honorable Court immediately upon receipt without
further arguments.

JANUS MARI AO ABAN

COPY FURNISHED: The City Prosecutor, Malaybalay City, Bukidnon