[G.R. No. 130805.

April 27, 2004]

PEOPLE OF THE PHILIPPINES, petitioner, vs. TOKOHISA KIMURA and

AKIRA KIZAKI,[1] respondents.

DECISION
AUSTRIA-MARTINEZ, J.:

Appellants Tomohisa Kimura and Akira Kizaki seek reversal of the

decision[2] dated June 27, 1997 in Criminal Case No. 94-5606, rendered by the
Regional Trial Court (Branch 66), Makati City, finding them guilty beyond
reasonable doubt of violation of Section 4, Article II of Republic Act No. 6425,
as amended by R.A. No. 7659, otherwise known as the Dangerous Drugs Act
of 1972, and sentencing each of them to suffer the penalty of reclusion
perpetua and to pay a fine of P500,000.00.
The Information dated August 8, 1994 against the accused alleges:

The undersigned State Prosecutor of the Department of Justice accuses TOMOHISA

KIMURA and AKIRA KIZAKI of violation of Section 4, Article II of Republic Act
6425, as amended by R.A. 7659, otherwise known as the Dangerous Drugs Act of
1972, committed as follows:

That on or about June 27, 1994 in Makati, Metro Manila and within the jurisdiction of
this Honorable Court, the above-named accused conspiring, confederating and
mutually helping one another, did then and there willfully, unlawfully and feloniously
transport and deliver without lawful authority approximately 40,768 grams of Indian
hemp (marijuana), a prohibited drug, in violation of the aforecited law.

CONTRARY TO LAW. [3]

Upon arraignment on October 10, 1994, the two accused, through counsel,
entered their separate pleas of Not Guilty to the crime charged;[4] whereupon,
the trial of the case ensued.
The testimonies of the following prosecution witnesses, to wit: SPO4 Juan
Baldovino, Jr.,[5] SPO1 Rolando Cabato,[6] SPO1 Edmundo Badua, Chief
Inspector Nilo Anso, PO3 Alfredo Cadoy, SPO1 Manuel Delfin and Forensic
Chemist, Police Inspector Sonia Ludovico, sought to establish the following
facts:
In the morning of June 27, 1994, Maj. Anso, head of Delta Group, Narcotics
Command (NARCOM) I, North Metro District
Command, Camp Karingal, Quezon City, received information from a
confidential informant that a certain Koichi Kishi and Rey Plantilla were engaged
in the selling of illegal drugs at the Cash and Carry
[7]
Supermarket, Makati City. Acting on said information, Maj. Anso organized a
team composed of SPO4 Baldovino, Jr., SPO1 Cabato and PO3 Cadoy to
conduct surveillance of the area.[8] A buy-bust operation was launched and PO3
Cadoy was designated to act as poseur-buyer and they prepared the buy-bust
money consisting of one P500.00 bill and five pieces of P100.00 bill.[9]
At around 3:00 in the afternoon of the same day, the team together with the
informant arrived at the Cash and Carry Supermarket and conducted
surveillance of the area.[10] Later, the informant was able to contact the targets
who told him that they will be arriving at 8:00 in the evening at the parking area
of the Cash and Carry Supermarket.[11] At around 8:00 in the evening, Koichi
and Rey arrived and were met by PO3 Cadoy and the informant.[12] PO3 Cadoy
gave the marked money worth P1,000.00 to Rey and Koichi who then handed
him the shabu. PO3 Cadoy scratched his head as a pre-arranged signal of the
consummation of the sale.[13] The operatives were about five meters from the
suspects.[14] While the team was approaching, PO3 Cadoy held Koichi by the
hand while Rey scampered away to the direction of the South
Superhighway.[15] The team brought Koichi to a safe area within the Cash and
Carry Supermarket and interrogated him. They learned from Koichi that his
friends/suppliers will arrive the same evening to fetch him.[16] Several minutes
later, a white Nissan Sentra car driven by appellant Kimura with his co-appellant
Kizaki seating at the passenger seat arrived at the parking area. Koichi pointed
to them as the ones who will fetch him. Appellants remained inside the car for
about ten to fifteen minutes.[17] Then, a certain Boy driving a stainless jeep,
without a plate number, arrived and parked the jeep two to three parking spaces
away from the Sentra car.[18] Boy approached the Sentra car and after a few
minutes, appellants got out of their car. Appellant Kizaki went to the stainless
jeep and sat at the passenger seat. Boy and appellant Kimura went to the rear
of the Sentra car and opened its trunk.[19] Appellant Kimura got a package
wrapped in a newspaper and gave it to Boy who walked back to his
jeep.[20]While Maj. Anso and SPO4 Baldovino, Jr. were approaching to check
what was inside the wrapped newspaper, appellant Kimura ran but was
apprehended while Boy was able to board his jeep and together with appellant
Kizaki who was seated at the passenger seat sped off towards South
Superhighway.[21] The police operatives then inspected the contents of the
trunk and found packages of marijuana.[22] They brought Koichi and appellant
Kimura to the headquarters and turned over the seized marijuana to the
investigator who made markings thereon.[23]Maj. Anso reported the escape of
appellant Kizaki to their investigation section.[24]
The seized packages which were contained in 3 sacks were brought to the
PNP Crime Laboratory on June 29, 1994.[25] Forensic Chemist Sonia Sahagun-
Ludovico testified that the contents of the sacks weighed 40,768 grams and
were positive to the test of marijuana.[26]
On June 29, 1994, appellant Kizaki while having dinner with his friends at
the Nippon Ichi Restaurant located at Mabini, Malate, Manila[27] was arrested
by another NARCOM group led by Maj. Jose F. Dayco.[28]
Appellants defense is denial and alibi. In support thereof, both appellants
were called to the witness stand.
Appellant Kimuras testimony is as follows: In the afternoon of June 27,
1994, Kimura was in the house of his co-appellant Kizaki at Dian
Street, Makati City, together with Koichi Kishi, Luis Carlos and a certain Sally
and Boy.[29] In the evening of the said date, Kimura borrowed the car of Kizaki
in order to get his (Kimuras) television from his house located in Evangelista
Street, near the Cash and Carry Supermarket, and bring the same to a repair
shop.[30] On their way to Kimuras house, Koichi requested Kimura to pass by
Cash and Carry Supermarket because Koichi needed to meet a certain Rey
who was borrowing money from him. Upon reaching Cash and Carry, Kimura
parked the car about twenty meters from its entrance, then Koichi and Carlos
alighted from the car and Koichi handed something to Rey.[31] Shortly thereafter,
Koichi and Carlos were grabbed by two men from behind. Then four men
approached the car and one guy ordered him to sit at the back and together
with Koichi and Carlos, they were all brought to Camp Karingal allegedly for
violating Sec. 4 of Republic Act No. 6425.[32]Kimura was asked questions about
the address and business of Kizaki. Kimura denied that there was marijuana in
the car on the night of June 27, 1994 but claims that he saw marijuana placed
at the car trunk the following day at Camp Karingal. Kizaki was not with him at
Cash and Carry on the night of June 27, 1994. There was no stainless jeep near
the car on the same night. Carlos was released and was not charged because
Kimuras girlfriend, Sally, served as Carlos guarantor.
On the other hand, appellant Kizaki testified that on the date that the alleged
crime was committed, he was in the company of his friends, Mr. and Mrs.
Takeyama, his co-appellant Kimura, and his driver Boy and maid Joan at his
house in Dian Street, Makati City;[33] that appellant Kimura borrowed his car on
the night of June 27, 1994 to pick up Kimuras broken TV and bring it to the
repair shop.[34]
Appellant Kizakis alibi was corroborated by Rosario Quintia, his former
housemaid, and his friend, Akiyoshi Takeyama, who both testified that they
were at Kizakis house on the night of June 27, 1994 from 7:00 to 10:00 in the
evening and never saw Kizaki leave the house.[35]
Appellant Kizaki was arrested on June 29, 1994, two days after the Cash
and Carry incident, in the Nippon Ichi Restaurant located at Mabini, Manila. He
was having dinner with Lt. Col. Rodolfo Tan, Masami Y. Nishino, Anita
Takeyama and Akiyoshi Takeyama. These witnesses executed a joint
affidavit[36] and testified that while they were about to leave the restaurant, a
man got near Kizaki and asked for his passport whom they thought was from
the Immigration. Later, they learned that Kizaki was brought
to Camp Karingal.[37]
On June 27, 1997, the trial court rendered the herein assailed judgment, the
dispositive portion of which reads:

IN VIEW OF THE FOREGOING, judgment is hereby rendered finding accused Akira

Kizaki and Tomohisa Kimura GUILTY beyond reasonable doubt for violation of
Section 4 of Republic Act 6425, as amended by Republic Act 7659, and the Court
hereby sentences them to suffer, taking into consideration the absence of mitigating or
aggravating circumstances, the amount of marijuana seized from the accused which
weigh 40,768 grams, the penalty of RECLUSION PERPETUA and to pay a fine
of P500,000.00 each.

The Bureau of Immigration and Deportation is hereby ordered to deport Akira Kizaki
and Tomohisa Kimura without further proceedings after the service of their sentence.

Let the marijuana, the subject matter of this case be immediately forwarded to the
Dangerous Drugs Board for proper disposition.

SO ORDERED.[38]

In convicting appellants, the trial court made the following findings:

The settled jurisprudence is that alibi is inherently a weak defense. Like the defense of
alibi, denial by the accused of the offense charged against him is also inherently a
weak defense. It is also the settled jurisprudence that the defense of alibi and denial
cannot prosper over the positive identification of the accused by the prosecution
witnesses. For alibi to prosper, the accused must show that it was impossible for him
to have been at the scene of the commission of the crime at the time of its
commission.

Akira testified that on the evening of June 27, 1994, he was in his house located at
Dian Street corner Ampil Street, Makati City, Metro Manila, which is a walking
distance to Cash and Carry Supermarket, the scene of the offense. It was not therefore
impossible for accused Akira Kizaki to have been present at the scene of the crime at
the time of its commission.

Accused Kimura testified that on the evening of June 27, 1994, he was with his co-
accused Kizaki at the Cash and Carry Supermarket but for another purpose, i.e., to
meet Rey Plantilla who was borrowing money from him. In fine accused Kimura
merely denied the offense charged against him, which is weak defense.

Both accused, Kizaki and Kimura, were positively identified by prosecution witnesses
SPO4 Baldomino, SPO1 Cabatu, Maj. Anso and PO3 Cadoy as the persons whom
they arrested for drug trafficking in a buy-bust operation at the Cash and Carry
Supermarket on June 27, 1994.

Finally, although the evidence show that there is a doubt in the illegality of the arrest
of accused Kimura by Major Dayco, the jurisprudence is that the illegality of
warrantless arrest cannot deprive the state of its right to convict the guilty when all the
facts on record point to their culpability.[39]

Hence, this appeal before us. Appellants assert the following:

I

THE COURT A QUO GRAVELY ERRED IN DISREGARDING ACCUSED-

APPELLANTS DEFENSE.

II

THE COURT A QUO GRAVELY ERRED IN FINDING THAT THE GUILT OF

THE ACCUSED-APPELLANTS HAD BEEN PROVEN BEYOND REASONABLE
DOUBT.

Appellants claim that although the defense of alibi and denial are weak, it is
still the duty of the prosecution to prove the guilt of the accused beyond
reasonable doubt to support a judgment of conviction; that the trial court mainly
relied on the weakness of the defense rather than on the strength of the
evidence for the prosecution. They argue that appellant Kizakis claim that he
was not at the Cash and Carry Supermarket on the night of June 27, 1994 was
corroborated by three independent witnesses including appellant Kimura who
testified that he was not with appellant Kizaki at Cash and Carry Supermarket
on the said night.
Appellants further question how the trial court could have been certain that
the marijuana presented in court are the same articles confiscated from the
appellants when the arresting officers did not place identifying marks on the
confiscated items.
Appellant Kizaki further contends that he was arrested two days after the
alleged buy-bust operation without a valid warrant of arrest. He points out that
although the trial court expressed doubts as to the legality of his arrest, it
nevertheless convicted him of the crime charged, which is in violation of the
Constitution. Kizaki argues that he could not have been caught in flagrante
delicto to justify the warrantless arrest when he was arrested two days after the
alleged Cash and Carry incident while he was only having dinner with his friends
at a restaurant.
In the appellees brief, the Solicitor General prays that the decision of the
trial court finding appellants guilty as charged be affirmed. He argues that
appellants were positively identified by four prosecution witnesses, all police
officers, as among the three persons engaged in the transportation and delivery
of about 40,768 grams of marijuana on June 27, 1994 at the Cash and Carry
Supermarket; that the police operatives were able to seize the marijuana from
the Sentra car they were using to transport the marijuana; that the marijuana
introduced and offered at the trial were positively identified by the arresting
officers as those seized from the car of the appellants; that the contention of
appellant Kizaki that his warrantless arrest two days after the alleged incident,
was unlawful, is legally inconsequential in this case considering that his
conviction was not based on his arrest on June 29, 1994 but on his having
participated in the transport and delivery of marijuana on June 27, 1994; that
appellant Kizaki never questioned the validity of the warrantless arrest of his
co-appellant Kimura on June 27, 1994, either before the trial court or before this
Court; thus, any challenge against the search and seizure of the marijuana
based on constitutional ground is deemed waived insofar as appellant Kizaki is
concerned.
We will first resolve the issue on the alleged warrantless arrest of appellant
Kizaki.
Appellant Kizaki assails the legality of his warrantless arrest. Indeed, SPO1
Delfin, one of those who arrested appellant Kizaki at the Nippon Ichi restaurant,
admitted that they did not have a warrant of arrest when his group arrested
Kizaki on the night of June 29, 1994. Rule 113, Section 5 of the Revised Rules
of Criminal Procedure provides that a peace officer or a private person may,
without a warrant, arrest a person only under the following circumstances:

(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;

(b) When an offense has just been committed and he has probable cause to
believe based on personal knowledge of facts or circumstances that the
person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or is
temporarily confined while his case is pending, or has escaped while
being transferred from one confinement to another.

The alleged crime happened on June 27, 1994 and appellant Kizaki was
arrested on June 29, 1994 or two days after the subject incident. At the time
appellant Kizaki was arrested, he was at a restaurant having dinner with a group
of friends, thus, he was not committing or attempting to commit a crime. Neither
was he an escaped prisoner whose arrest could be effected even without a
warrant. It bears stressing that none of the arresting officers of appellant Kizaki
was present on the night of June 27 where appellant Kizaki allegedly sold and
transported marijuana and escaped, thus the arresting officers had no personal
knowledge of facts or circumstances that appellant Kizaki committed the crime.
None of the exceptions enumerated above was present to justify appellant
Kizakis warrantless arrest.
However, notwithstanding the unjustified warrantless arrest of appellant
Kizaki, the records show that he did not raise such question before he pleaded
to the offense charged.[40]Neither did he move to quash the information on that
ground before the trial court.[41] He thus waived objection to the illegality of his
arrest.[42] Moreover, appellant Kizakis application for bail[43] which was denied
by the trial court likewise constitutes a waiver of his right to question whatever
irregularities and defects which attended his arrest.[44]
Nevertheless, we find the other claims of appellants meritorious.
In all prosecutions for violation of the Dangerous Drugs Act, the existence
of all dangerous drugs is a sine qua non for conviction. The dangerous drug is
the very corpus delicti of the crime of violation of the Dangerous Drugs Act.[45]
In People vs. Casimiro,[46] we acquitted appellant for failure of the
prosecution to establish the identity of the prohibited drug which constitutes
the corpus delicti and held:
In People vs. Mapa, the accused-appellant was granted an acquittal after the
prosecution failed to clarify whether the specimen submitted to the NBI for laboratory
examination was the same one allegedly taken from the accused. In People vs.
Dismuke, this Court ruled that the failure to prove that the specimen of marijuana
examined by the forensic chemist was that seized from the accused was fatal to the
prosecutions case. In People vs. Laxa, the policemen composing the buy-bust team
failed to mark the confiscated marijuana immediately after the alleged apprehension
of the accused-appellant. One policeman admitted that he marked the seized items
only after seeing them for the first time in the police headquarters. It was held:

This deviation from the standard procedure in the anti-narcotics operations produces
doubts as to the origins of the marijuana. Were the allegedly confiscated from the
scene of the crime the same ones which the investigator marked in the police
headquarters? This question gives rise to surmises and speculations, and cannot prove
beyond reasonable doubt the guilt of accused-appellant.

In this case, the prosecution failed to prove the crucial first link in the chain of
custody. The prosecution witnesses PO2 Supa, SPO2 Madlon and PO3 Piggangay
admitted they did not write their initials on the brick of marijuana immediately after
allegedly seizing from accused-appellant outside the grocery store but only did so in
their headquarters. The narcotics field test, which initially identified the seized item as
marijuana, was likewise not conducted at the scene of the crime, but only at the
narcotics office. There is thus reasonable doubt as to whether the item allegedly seized
from accused-appellant is the same brick of marijuana marked by the policemen in
their headquarters and given by them to the crime laboratory for examination.

After examining the evidence for the prosecution, and tested in the light of
the Casimiro case, we find that the prosecution failed to establish the identity of
the marijuana allegedly seized from appellants Kimura and Kizaki. Extant in the
records were the admissions made by the police operatives of their failure to
place any markings on the seized marijuana immediately after they had
allegedly apprehended appellants, thus failing to prove that the marijuana
presented in court was the very same marijuana seized from appellants. Maj.
Anso, head of the police operatives, testified on cross-examination as follows:
ATTY. BALICUD:
With respect to the packages which you identified yesterday, before you showed that to
your investigation section, did you make any markings thereat?
WITNESS:
None, sir.
ATTY. BALICUD:
 Did any of your men place any markings at least to identify that that is the drugs
confiscated by you at the Cash and Carry?
WITNESS:
What I know your honor, is that the investigation section is the one who will mark the
evidence.
...
COURT:
You mean to say when you have already surrender(sic) the shabu(sic) to the
investigation section that was the time when the investigator mark them?
WITNESS:
It is already their duty to mark them, your honor.
...
ATTY. BALICUD:
And did you see if any of those men in the investigation section did the corresponding
markings?
WITNESS:
I did not already see sir.[47]
The testimony of Maj. Anso was confirmed by SPO4 Baldovino, Jr. when
the latter testified on cross-examination as follows:
ATTY. SENSON:
Q. When the packages contained in Exhibits B, C and D were recovered at the car, did
you not make any markings on them, is that correct?
WITNESS:
A. That is true, sir.[48]

SPO4 Baldovino, Jr. further clarified on his re-direct examination why no

markings were made, thus:
FISCAL MANABAT:
Q. Why is it that no markings were made on these marijuana packages?
...
WITNESS:
We did not put markings there because after we confiscated those packages, there was
a press conference conducted and after that we submitted it to PCCL or Philippine
Crime Laboratory, sir.[49]
 The failure to establish the chain of custody of the evidence is further shown
by the testimony of SPO1 Badua, the person assigned to bring the alleged
seized marijuana to the PNP Crime Laboratory. His testimony is as follows:
PROS. MANABAT:
Do you recall your activities on that day, June 29, 1994?
WITNESS:
I was ordered to bring the marijuana to the Crime Laboratory.
PROS. MANABAT:
Who ordered you to bring the marijuana to the Crime Laboratory?
WITNESS:
Superintendent Eduardo Cario, sir.
PROS. MANABAT:
Where did this marijuana come from, if you know?
WITNESS:
In our office confiscated from Japanese nationals.
PROS. MANABAT:
Do you know the name of the Japanese nationals you are referring to?
WITNESS;
I do not know, sir.
PROS. MANABAT:
Can you describe this marijuana which you said you were required to bring to the PNP
Crime Laboratory?
WITNESS:
They are contained in sacks, sir.
COURT:
How many sacks?
WITNESS:
Three (3), sir.
PROS. MANABAT:
What kind of sacks were these, can you recall?
WITNESS:
Rice sacks.
...
PROS. MANABAT:
Now, if you see this marijuana you said you were required to bring to the PNP Crime
Laboratory which you described as being contained in three (3) sacks, will you be
able to identify these three (3) sacks of marijuana.
WITNESS:
Yes, sir.
PROS. MANABAT:
Now, I am showing to you SPO1 Badua, there are three (3) sacks (sic) here already
deposited in Court, please examine these three (3) sacks carefully and tell us the
relation of these three sacks to that marijuana contained in sacks which you said
you were required to bring to PNP Crime Laboratory.
WITNESS:
These are the three sacks I brought.
PROS. MANABAT:
...
Now, you said that this marijuana was contained in three sacks, three rice sacks, will you
please examine the sacks and tell us if these are the same sacks which you brought
to the PNP Crime Laboratory?
WITNESS:
Yes, sir, these are the same sacks I brought.
COURT:
What made you so sure that these are the same sacks that you brought from your office
to the Crime Laboratory?
WITNESS:
Because of the markings A, B, C.
COURT:
Who affixed those markings?
WITNESS:
The investigator, sir.
COURT:
Did you see the investigator affixed those markings?
WITNESS:
Yes, sir.
COURT:
Who was the investigator?
 WITNESSS:
SPO1 Delfin, sir.
PROS. MANABAT:
Now, what proof do you have that you actually brought these three sacks of marijuana
which you identified to the PNP Crime Laboratory?
WITNESS:
There is a request for laboratory examination.
PROS. MANABAT:
Who prepared this request for laboratory examination of the marijuana?
WITNESS:
SPO1 Delfin.[50]

And on cross-examination as follows:

ATTY. BALICUD:
Now, were you present when this request for laboratory examination was prepared?
WITNESS:
Yes, sir.
ATTY. BALICUD:
Who specifically typed the request?
WITNESS:
SPO1 Delfin, sir.
ATTY. BALICUD:
And this was made on June 28, 1994?
WITNESS:
Yes, sir.
...
ATTY. BALICUD:
And then about what time on June 28 was it prepared?
WITNESS:
Morning, sir.
ATTY. BALICUD:
But then this request was received already by the Crime Laboratory on June 29, 1994,
where were the three sacks deposited from June 28 up to the time you picked it up
on June 29 to be brought to the Crime Laboratory?
WITNESS:
It was deposited inside our supply room.
ATTY. BALICUD:
Why did you not deposit or deliver it immediately to the Crime Laboratory?
WITNESS:
We were still preparing the necessary papers.
ATTY. BALICUD:
What papers were still being prepared?
WITNESS:
Request for laboratory, medical, drug dependency.
...
ATTY. BALICUD:
Now, when the request for laboratory examination was made, did you already see
the contents inside the sack?
WITNESS:
Yes, sir.
ATTY. BALICUD:
Why did you open the sacks?
WITNESS:
Yes, sir.
ATTY. BALICUD:
Who opened the sacks?
WITNESS:
The investigator.
ATTY. BALICUD:
So that they were placed in three sacks?
WITNESS:
Yes, sir.
ATTY. BALICUD:
And you opened each and every sack?
WITNESS:
Yes, sir.
ATTY. BALICUD:
 You brought the same to the Crime Laboratory?
WITNESS:
Yes, sir.
ATTY. BALICUD:
Were there markings in the 3 sacks when the same were brought to the PNP Crime
Laboratory?
WITNESS:
Yes, sir. A, B, C.
ATTY. BALICUD:
So that one sack is marked A, the other sack is B and the other is marked C.
WITNESS:
Yes, sir.
ATTY. BALICUD:
How about the contents of these three sacks, were they also marked when you brought
the same to the PNP Crime Laboratory?
WITNESS:
Yes, sir, but it was marked at the Crime Laboratory already.
ATTY. BALICUD:
So, it is clear that when the alleged marijuana was brought to the PNP Crime Laboratory,
there was no marking yet?
WITNESS:
Yes, sir. [51]
While SPO1 Baduas testimony showed that it was investigator SPO1 Delfin
who made the markings A, B, C on the three sacks containing the marijuana
which he brought to the laboratory, nowhere in his testimony did he say that
such markings were made on the night the appellants were arrested, i.e., on
June 27, 1994. Investigator Delfin did not initial said markings nor did he testify
affirming his markings.
Moreover, although the three sacks of alleged marijuana were marked as
A, B, C, the contents of these three sacks however had no markings when they
were kept inside the supply room on June 28 since as Badua intimated, the
contents of these three sacks were only marked when he brought the same to
the PNP Crime Laboratory on June 29, 1994.
The records of the case do not show that the police operatives complied
with the procedure in the custody of seized prohibited and regulated drugs as
embodied in the Dangerous Drugs Board Regulation No. 3 Series of 1979
amending Board Regulation No. 7 Series of 1974,[52] i.e., any apprehending
team having initial custody and control of said drugs and/or paraphernalia,
should immediately after seizure or confiscation, have the same physically
inventoried and photographed in the presence of the accused, if there be any,
and/or his representative, who shall be required to sign the copies of the
inventory and be given a copy thereof. In this case, there was no inventory
made in the crime scene despite the fact that Maj. Anso testified that he saw
eighteen packages neatly wrapped in a newspaper but the inventory was made
already in the headquarters. SPO1 Badua testified that the marijuana
confiscated from appellant Kimura was contained in three sacks.
Consequently, the failure of the NARCOM operatives to place markings on
the alleged seized marijuana coupled with their failure to observe the procedure
in the seizure and taking custody of said drug seriously bring to question the
existence of the seized prohibited drug. It is not positively and convincingly clear
that what was submitted for laboratory examination and presented in court was
actually recovered from the appellants.
Evidently, the prosecution has not proven the indispensable element
of corpus delicti of the crime which failure produces a grevious doubt as to the
guilt of the appellants. In criminal cases, proof beyond reasonable doubt is
required to establish the guilt of the accused. Similarly, in establishing
the corpus delicti, that unwavering exactitude is necessary. Every fact
necessary to constitute the crime must be established by proof beyond
reasonable doubt.[53]
Although the defense raised by appellants Kimura and Kizaki were denial
and alibi, respectively, which are inherently weak, we have repeatedly declared
that the conviction of the accused must rest not on the weakness of the defense
but on the strength of the prosecution.[54] The denial of appellant Kimura that he
was caught in the Cash and Carry Supermarket delivering marijuana on the
night of June 27, 1994 may be weak but the evidence for the prosecution is
clearly even weaker. In People vs. Laxa,[55] we acquitted the appellant for
failure of the prosecution to establish the identity of the prohibited drug which
constitutes the corpus delicti, an essential requirement in a drug related
case. In the present case, the prosecution also failed to indubitably show the
identity of the marijuana which mere allegedly seized from appellants.
The alibi of appellant Kizaki that he was in his house on the same night
assumes weight and significance considering that the scenario depicted by the
prosecution on the alleged escape of appellant Kizaki at the Cash and Carry
left much to speculations and surmises. The prosecution tried to show that
appellant Kizaki who was on board the stainless jeep was able to escape even
if the police operatives were only about five meters away from the jeep[56] which
was heading to the entrance of the Cash and Carry along South
Superhighway. It is quite difficult for us to accept its veracity considering that
despite the short distance of the operatives from the jeep when it started to
speed off, the operatives who were all armed with service revolvers[57] chased
on foot the stainless jeep and did not even fire any warning shot to stop the
driver and appellant Kizaki nor did they fire a shot at the tire of the jeep to
immobilize it.The alibi of Kizaki found corroboration from his friend Akiyoshi
Takeyama and appellant Kizakis former housemaid Rosaria Quintia that he was
in his house and never left it on the night of the alleged delivery or transport of
marijuana in Cash and Carry Supermarket. In fact, co-appellant Kimura testified
that appellant Kizaki was not one of his companions in going to Cash and carry
Supermarket on June 27, 1994.[58] Moreover, in the request for laboratory
examination dated June 28, 1994, signed by P/CI Jose F. Dayco, Chief,
Investigation Section, NMDU, NARCOM, the suspects named therein were only
Koichi Kishi and Tomohisa Kimura.[59] Hence, the constitutional presumption of
innocence has not been overcome by the prosecution.
In fine, for failure of the prosecution to establish the guilt of both appellants
beyond reasonable doubt, they must perforce be exonerated from criminal
liability.
WHEREFORE, the decision of the trial court in Criminal Case No. 94-5606
is hereby REVERSED and appellants Tomohisa Kimura and Akira Kizaki, are
hereby ACQUITTED on ground of reasonable doubt. They are ordered
immediately released from prison, unless they are being detained for some
other lawful cause. The Director of Prisons is DIRECTED to inform this Court
of the action taken hereon within five (5) days from receipt hereof.
Let the PNP Director be furnished a copy of herein decision for the proper
information and guidance of his police operatives. The marijuana is hereby
ordered confiscated in favor of the government for its proper disposition under
the law.
Costs de oficio.
SO ORDERED.
Puno, (Chairman), Quisumbing, Callejo, Sr., and Tinga, JJ., concur.
PEOPLE vs ROMY LIM, GR No. 231989, September 4, 2018
FACTS: On appeal is the Decision of the CA, which affirmed the decision of RTC of
Cagayan de Oro City, finding accused-appellant Romy Lim y Miranda (Lim) guilty of
violating Sections 11 and 5, respectively, of Article II of Republic Act (R.A.) No. 9165,
or the Comprehensive Dangerous Drugs Act o/2002.
In an Information dated October 21, 2010, Lim was charged with illegal possession
of shabu. On same date, Lim, together with his stepson, Eldie Gorres y Nave
(Gorres), was also indicted for illegal sale of shabu.
In their arraignment, Lim and Gorres pleaded not guilty. They were detained in the
city jail during the joint trial of the cases.
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.
In so far as Gorres is concerned, the RTC opined that the evidence presented were
not strong enough to support the claim that there was conspiracy between him and
Lim because it was insufficiently shown that he knew what the box contained. It
also noted in the Chemistry Report that Gorres was "NEGATIVE" of the presence of
any illicit drug based on his urine sample.
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. Likewise, all the elements of illegal
possession of a dangerous drug was proven. Lim resorted to denial and could not
present any proof or justification that he was fully authorized by law to possess the
same. The CA was unconvinced with his contention that the prosecution failed to
prove the identity and integrity of the seized prohibited drugs. For the appellate
court, it was able to demonstrate that the integrity and evidentiary value of the
confiscated drugs were not compromised. The witnesses for the prosecution were
also able to testify on every link in the chain of custody.
However, Lim maintains that the case records are bereft of evidence showing that
the buy-bust team followed the procedure mandated in Section 21(1), Article II of
R.A. No. 9165.
ISSUE: W/N the CA erred in its ruling
RULING: YES. At the time of the commission of the crimes, the law applicable is R.A.
No. 9165. Section l (b) of Dangerous Drugs Board Regulation No. 1, Series of 2002,
which implements the law and defines chain of custody. The chain of custody rule
is but a variation of the principle that real evidence must be authenticated prior to
its admission into evidence. To establish a chain of custody sufficient to make
evidence admissible, the proponent needs only to prove a rational basis from which
to conclude that the evidence is what the party claims it to be. In other words, in a
criminal case, the prosecution must offer sufficient evidence from which the trier
of fact could reasonably believe that an item still is what the government claims it
to be.
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:
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 physical 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.
We have held that the immediate physical inventory and photograph of the
confiscated items at the place of arrest may be excused in instances when the
safety and security of the apprehending officers and the witnesses required by law
or of the items seized are threatened by immediate or extreme danger such as
retaliatory action of those who have the resources and capability to mount a
counter-assault. The present case is not one of those.
Evident, however, is the absence of an elected public official and representatives
of the DOJ and the media to witness the physical inventory and photograph of the
seized items. In fact, their signatures do not appear in the Inventory Receipt.
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.
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.
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.
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,
Rule 112, Rules of Court.
ROMY LIM WAS ACQUITTED on reasonable doubt.