Republic of the Philippines

REGIONAL TRIAL COURT

___ Judicial Region
Branch ___
City of ______________, _______________

PEOPLE OF THE PHILIPPINES, Criminal Case Nos.

__________
Plaintiff,
For:
-versus- Violation of Secs. 5 and 11,
Article II of R.A. 9165

_____________________________,
Accused.
x-----------------------------------------------------x

MOTION FOR LEAVE OF COURT

TO FILE DEMURRER TO EVIDENCE

ACCUSED _____________, by counsel, unto this Honorable Court, most

respectfully avers that:

1. On ______________, the accused received a copy of the prosecution’s

Formal Offer of Evidence.

2. On ____________, this Honorable Court ruled on the prosecution’s

formal offer of evidence. Pursuant to BDO Unibank, Inc. v. Antonio Choa, G.R.
No. 237553, July 10, 2019, the prosecution is now deemed to have rested its case.

3. The accused, however, received a copy of the Order dated

_____________ only on _________________.

4. Under Section 23 of Rule 119 of the Rules of Criminal Procedure,

the accused has a period of five (5) days from __________, or until __________, to
file this Motion.

5. This Motion is filed within the reglementary period and is not intended
for delay.

6. The prosecution’s evidence is insufficient to prove the guilt of the

accused beyond reasonable doubt, considering that ---

A) THE PROSECUTION FAILED TO PRODUCE PROOF BEYOND

REASONABLE DOUBT THAT THERE WAS A VALID BUY-BUST OPERATION IN
THESE CASES.

For example, the procedural safeguards required by the 1999 Philippine

National Police Drug Enforcement Manual (PNPDEM) in the conduct of buy-
bust operations were not followed.
Motion for Leave of Court to File Demurrer to Evidence | Abogadong Promdi

Said manual requires the following: 1) Preparation of a detailed receipt of

the confiscated evidence for issuance to the possessor (suspect) thereof; 2)
Marking by the seizing officer (normally the poseur-buyer) and the evidence
custodian of the evidence with their initials, and the date, time and place of
confiscation of the evidence; and 3) Taking of photographs of the evidence
while in the process of making the inventory, especially during weighing.

With all due respect to the public prosecutor, there was no detailed
receipt of the confiscated evidence in the instant cases. Firstly, it can be noted
that there was no chain of custody form attached to the records. Secondly, the
attached turn-over slip did not even indicate the time as to when the pieces
of evidence were transferred from the hands of ____________ to those of
______________.

Also, the markings made on the evidence only contained the marking
officer’s initials and did not indicate when and where the evidence was
confiscated/seized.

Lastly, no photograph of the evidence while the seizing officer was in

the process of taking the inventory, especially during weighing, was attached to
the records.

In People v. Rivera and Lacdan, G.R. No. 225786, November 14,

2018, because of the similar irregularities, the Supreme Court, upheld the
presumption of innocence of the accused over the presumption of regularity in
the performance of official duties by police officers.

B) THE PROSECUTION LIKEWISE FAILED TO PROVE BEYOND

REASONABLE DOUBT THAT THE CHAIN OF CUSTODY RULE ENFORCED IN
ANTI-ILLEGAL DRUGS OPERATIONS HAD BEEN COMPLIED WITH.

For example, the three insulating witnesses were not present at all stages
of the operation - at the time of seizure, apprehension and inventory. In People
v. Rivera and Lacdan, G.R. No. 225786, November 14, 2018, the Supreme
Court, citing People v. Tomawis, G.R. No. 228890, April 18, 2018, said that:

“The presence of the witnesses from the DOJ, media, and from public
elective office is necessary to protect against the possibility of planting,
contamination, or loss of the seized drug. Using the language of the Court
in People vs. Mendoza,[32] without the insulating presence of the
representative from the media or the DOJ and any elected public official
during the seizure and marking of the drugs, the evils of switching,
"planting" or contamination of the evidence that had tainted the buy-busts
conducted under the regime of RA No. 6425 (Dangerous Drugs Act of
1972) again reared their ugly heads as to negate the integrity and credibility
of the seizure and confiscation of the subject sachet that was evidence of
the corpus delicti, and thus adversely affected the trustworthiness of the
incrimination of the accused.

“The presence of the three 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 three
witnesses is most needed, as it is their presence at the time of seizure and
Motion for Leave of Court to File Demurrer to Evidence | Abogadong Promdi

confiscation that would belie any doubt as to the source, identity, and
integrity of the seized drug. If the buy-bust operation is legitimately
conducted, the presence of the insulating witnesses would also controvert
the usual defense of frame-up as the witnesses would be able to testify that
the buy-bust operation and inventory of the seized drugs were done in their
presence in accordance with Section 21 of RA 9165.

“The practice of police operatives of not bringing to the intended place of

arrest the three witnesses, when they could easily do so — and "calling
them in" to the place of inventory to witness the inventory and
photographing of the drugs only after the buy-bust operation has already
been finished — does not achieve the purpose of the law in having these
witnesses prevent or insulate against the planting of drugs.

“To restate, the presence of the three witnesses at the time of seizure
and confiscation of the drugs must be secured and complied with at
the time of the warrantless arrest; such that they are required to be at
or near the intended place of the arrest so that they can be ready to
witness the inventory and photographing of the seized and
confiscated drugs "immediately after seizure and confiscation."

In the instant cases, it is clear that the insulating witnesses were not
present at the time of the arrest and seizure and that they were present only
during the marking. Based on the testimony of the prosecution witness, the
arrest and seizure happened at around 2:20 in the morning of ___________.
While the stipulations on the testimonies of the insulating witnesses as well as the
documents prepared in relation thereto revealed that coordination with them was
supposedly made at 1:58 in the morning, the said insulating witnesses (based on
the testimony of media representative ___________ which was adopted to be the
same for the other insulating witnesses) were actually present only at around 2:35
in the morning - which means that they were 15 minutes late from the time
of arrest and seizure. Many things could happen in 15 minutes. With this span
of time, the insulating witnesses being absent at the time of arrest and seizure, the
prosecution failed to adduce evidence that the pieces of drugs were actually
taken from the accused, and that there was no possibility of planting.

With the foregoing, it cannot be reasonably and logically inferred that the
accused is the source of the drugs evidence.

7. It is necessary for the defense to be allowed by this Honorable Court to

file his demurrer to evidence with leave of court to be able to point out in detail the
weakness of the prosecution’s evidence necessitating the dismissal of the instant cases
against him, and so as not to further waste the precious time of this Court.

PRAYER

WHEREFORE, it is most respectfully prayed of this Honorable Court that

an Order be issued allowing herein accused to file, with leave of court, DEMURRER
TO EVIDENCE.

Such other reliefs as may be deemed just and equitable under the premises
are likewise prayed for.
Motion for Leave of Court to File Demurrer to Evidence | Abogadong Promdi

RESPECTFULLY SUBMITTED.
________________.
_____________________ (for ____________________, ____________),
Philippines.

AP Law
______________________________

By

ABOGADONG PROMDI
Counsel for the Accused
Roll of Attorneys No. _______________
IBP O.R. No. ___________; ___________; Pasig City
PTR No. ____________; __________; ________________
MCLE Compliance No. VII-______________
______________ | [email protected]

NOTICE OF HEARING

TO: THE CLERK OF COURT

REGIONAL TRIAL COURT BRANCH __
______________________, _________________

THE PUBLIC PROSECUTOR

OFFICE OF THE CITY PROSECUTOR
______________________, _________________

GREETINGS!

Please take notice that the foregoing MOTION FOR LEAVE OF COURT TO FILE
DEMURRER TO EVIDENCE shall be submitted for the consideration and approval of the Honorable
Court on ___________________________.
ABOGADONG PROMDI

EXPLANATION AS TO SERVICE

The above motion was not served personally, and service by electronic mail was resorted to, due to
time constraint, and the distance from herein counsel-sender’s place in ______________,
______________________ to the office address of the Honorable Public Prosecutor in _______________,
__________________________.

ABOGADONG PROMDI

Copy furnished:

THE PUBLIC PROSECUTOR

Office of the City Prosecutor
__________________, _____________________