SECOND DIVISION
PEOPLE OF THE
PHILIPPINES,
Petitioner,
G.R.
No. 130805
April 27, 2004
-versus-
TOKOHISA KIMURA
and
AKIRA KIZAKI,[1]
Respondents.
D E C I S I O N
AUSTRIA-MARTINEZ,
J.:chanroblesvirtuallawlibrary
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.cralaw:red
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:chanrobles virtuallaw libraryred
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
Supermarket,
Makati City.[7]
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]chanrobles virtuallaw libraryred
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.cralaw:red
Appellant Kimura’s 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 (Kimura’s) 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 Kimura’s 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
Kimura’s girlfriend, Sally, served as Carlos’ guarantor.cralaw:red
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 Kimura’s broken TV and bring it to the repair shop.[34]
Appellant Kizaki’s alibi
was corroborated by Rosario Quintia, his former housemaid, and his
friend,
Akiyoshi Takeyama, who both testified that they were at Kizaki’s 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]chanrobles virtuallaw libraryred
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.cralaw:red
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.cralaw:red
Let the marijuana, the
subject matter of this case be immediately forwarded to the Dangerous
Drugs
Board for proper disposition.cralaw:red
SO ORDERED.[38]chanrobles virtuallaw libraryred
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.cralaw:red
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.chanrobles virtuallaw libraryred
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.cralaw:red
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.cralaw:red
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 Kizaki’s 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.cralaw:red
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.cralaw:red
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.chanrobles virtuallaw libraryred
In the appellee’s 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.cralaw:red
We will first resolve
the issue on the alleged warrantless arrest of appellant Kizaki.cralaw:red
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;chanrobles virtuallaw libraryred
(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 Kizaki’s warrantless arrest.cralaw:red
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 Kizaki’s 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.cralaw:red
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]chanrobles virtuallaw libraryred
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 prosecution’s 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.cralaw:red
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.chanrobles virtuallaw libraryred
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.cralaw:red
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.cralaw:red
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.cralaw:red
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]chanrobles virtuallaw libraryred
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.cralaw:red
PROS. MANABAT:
Who ordered you to bring the marijuana to the Crime Laboratory?
WITNESS:
Superintendent Eduardo Cariño, sir.cralaw:red
PROS. MANABAT:
Where did this marijuana come from, if you know?
WITNESS:chanrobles virtuallaw libraryred
In our office confiscated from Japanese nationals.cralaw:red
PROS. MANABAT:
Do you know the name of the Japanese nationals you are referring to?
WITNESS;
I do not know, sir.cralaw:red
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.cralaw:red
COURT:
How many sacks?
WITNESS:
Three (3), sir.cralaw:red
PROS. MANABAT:
What kind of sacks were these, can you recall?
WITNESS:
Rice sacks.cralaw:red
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.cralaw:red
WITNESS:chanrobles virtuallaw libraryred
Yes, sir.cralaw:red
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.cralaw:red
WITNESS:
These are the three sacks I brought.cralaw:red
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.cralaw:red
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.cralaw:red
COURT:
Who affixed those markings?
WITNESS:
The investigator, sir.cralaw:red
COURT:
Did you see the investigator affixed those markings?
WITNESS:
Yes, sir.cralaw:red
COURT:chanrobles virtuallaw libraryred
Who was the investigator?
WITNESSS:
SPO1 Delfin, sir.cralaw:red
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.cralaw:red
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.chanrobles virtuallaw libraryred
ATTY. BALICUD:
Who specifically typed the request?
WITNESS:
SPO1 Delfin, sir.cralaw:red
ATTY. BALICUD:
And this was made on June 28, 1994?
WITNESS:
Yes, sir.cralaw:red
ATTY. BALICUD:
And then about what time on June 28 was it prepared?
WITNESS:
Morning, sir.cralaw:red
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.cralaw:red
ATTY. BALICUD:
Why did you not deposit or deliver it immediately to the Crime
Laboratory?chanrobles virtuallaw libraryred
WITNESS:
We were still preparing the necessary papers.cralaw:red
ATTY. BALICUD:
What papers were still being prepared?
WITNESS:
Request for laboratory, medical, drug dependency.cralaw:red
ATTY. BALICUD:
Now, when the request
for laboratory examination was made, did you already see the contents
inside
the sack?
WITNESS:
Yes, sir.cralaw:red
ATTY. BALICUD:
Why did you open the
sacks?chanrobles virtuallaw libraryred
WITNESS:
Yes, sir.cralaw:red
ATTY. BALICUD:
Who opened the sacks?
WITNESS:
The investigator.cralaw:red
ATTY. BALICUD:
So that they were placed in three sacks?
WITNESS:
Yes, sir.cralaw:red
ATTY. BALICUD:
And you opened each and every sack?
WITNESS:
Yes, sir.cralaw:red
ATTY. BALICUD:
You brought the same to the Crime Laboratory?
WITNESS:
Yes, sir.cralaw:red
ATTY. BALICUD:chanrobles virtuallaw libraryred
Were there markings
in the 3 sacks when the same were brought to the PNP Crime Laboratory?
WITNESS:
Yes, sir. A, B, C.cralaw:red
ATTY. BALICUD:
So that one sack is
marked A, the other sack is B and the other is marked C.cralaw:red
WITNESS:
Yes, sir.cralaw:red
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.cralaw:red
ATTY. BALICUD:chanrobles virtuallaw libraryred
So, it is clear that when the alleged marijuana was brought to the PNP
Crime Laboratory, there was no marking yet?
WITNESS:chanrobles virtuallaw libraryred
Yes, sir.[51]
While SPO1 Badua’s 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.chanrobles virtuallaw libraryred
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.cralaw:red
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.chanrobles virtuallaw libraryred
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.cralaw:red
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.chanrobles virtuallaw libraryred
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 Kizaki’s 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.cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
Costs de oficio.cralaw:red
SO ORDERED.cralaw:red
Puno, J., (Chairman), Quisumbing,
Callejo, Sr., and Tinga, JJ.,
concur.
____________________________
Endnotes:
[1]
Spelled Kisaki in the Transcripts of Stenographic Notes (TSN).
[2]
Penned by Judge Eriberto U. Rosario, Jr.chanrobles virtuallaw libraryred
[3]
Records, p. 1; Rollo, p.10.chanrobles virtuallaw libraryred
[4]
Records, p. 77.chanrobles virtuallaw libraryred
[5]
Sometimes spelled Baldomino.chanrobles virtuallaw libraryred
[6]
Sometimes spelled Cabatu.chanrobles virtuallaw libraryred
[7]
TSN (Anso), January 31, 1995, p. 14; TSN (Baldovino, Jr.), December 15,
1994, p. 11; TSN, (Cabato),
December
20, 1994, p. 13.
[8]
TSN (Anso), January 31, 1995, p. 19; TSN (Baldovino, Jr.), December 15,
1994, p. 12. TSN, (Cabato),
December
20, 1994, p. 12.
[9]
TSN (Anso), January 31, 1995, p. 21; TSN (Baldovino, Jr.), December 15,
1994, pp. 12-13.
[10]
TSN (Anso), January 31, 1995, p. 23-24; TSN (Baldovino, Jr.), December
15, 1994, p. 16; TSN, (Cabato), December 20, 1994, p. 15.
[11]
TSN (Anso), January 31, 1995, p. 29; TSN (Baldovino, Jr.), December 15,
1994, p. 19; TSN, (Cabato), December 20, 1994, p. 18.
[12]
TSN (Anso), January 31, 1995, p. 35; TSN (Baldovino, Jr.), December 15,
1994, p. 21; TSN, (Cabato), December 20, 1994, p. 22.
[13]
TSN (Anso), January 31, 1995, p. 36; TSN (Baldovino, Jr.), December 15,
1994 p. 22; TSN,
(Cabato),
December 20, 1994, p. 25.
[14]
TSN (Baldomino, Jr.), December 15, 1994, p. 22; TSN, (Cabato), December
20, 1994, p. 25.chanrobles virtuallaw libraryred
[15]
TSN (Anso), January 31, 1995, p. 37; TSN (Baldovino, Jr.), December 15,
1994, p. 25; TSN, (Cabato), December 20, 1994, p. 25.
[16]
TSN(Anso), January 31, 1995, p. 43; TSN (Baldovino, Jr.),
December
15, 1994, p. 28; TSN, (Cabato), December 20, 1994, p. 27.
[17]
TSN (Anso), January 31, 1995, p. 47; TSN (Baldovino, Jr.), December 15,
1994, p. 33; TSN, (Cabato), December 20, 1994, p. 33.
[18]
TSN (Anso), January 31, 1995, p. 48; TSN (Baldovino, Jr.), December 15,
1994, pp. 32-33; TSN, (Cabato), December 20, 1994, p. 34.
[19]
TSN (Anso), January 31, 1995, p. 51; TSN (Baldovino, Jr.), December 15,
1994, pp. 34-35; TSN, (Cabato), December 20, 1994, pp. 35-36.
[20]
TSN (Anso), January 31, 1995, p. 52; TSN (Baldovino, Jr.), December 15,
1994, p. 35; TSN, (Cabato), December 20, 1994, pp. 17-38.
[21]
TSN (Anso), January 31, 1995, p. 57; TSN (Baldovino, Jr.), December 15,
1994, p. 38; TSN, (Cabato), December 20, 1994, pp. 38-39.
[22]
TSN (Anso), January 31, 1995, p. 58; TSN (Baldovino, Jr.), December 15,
1994, p. 39; TSN, (Cabato), December 20, 1994, pp. 40-41.
[23]
TSN (Anso), January 31, 1995, p. 42; TSN (Baldovino, Jr.), December 15,
1994, p. 78, pp. 90-91.chanrobles virtuallaw libraryred
[24]
TSN (Anso), January 31, 1995, p. 76; TSN(Baldovino, Jr.),
December
15, 1994.chanrobles virtuallaw libraryred
[25]
TSN, Edmundo Badua, January 30, 1995, p. 30.chanrobles virtuallaw libraryred
[26]
TSN, June 5, 1995, pp. 29-30; Exhibit I.chanrobles virtuallaw libraryred
[27]
TSN, SPO1 Manuel Delfin, April 19, 1995, p. 12.
[28]
Id., pp. 16-18.chanrobles virtuallaw libraryred
[29]
TSN, November 14, 1995, p. 12.
[30]
Id., p. 16.chanrobles virtuallaw libraryred
[31]
Id., pp. 20-21.
[32]
Id., pp. 23-25.
[33]
TSN, November 11, 1996, pp. 6-7.
[34]
Ibid, p.10.chanrobles virtuallaw libraryred
[35]
TSN, February 22, 1996, pp. 8-11; TSN November 18, 1996, p. 47.
[36]
Exhibit “5,” Records, p. 13.
[37]
TSN (Tan), October 26, 1995, pp. 13-15; TSN (Nishino), November 7,
1995,
p. 8; TSN (Anita Takeyama), February 8, 1996, pp. 8-10.
[38]
Rollo, p. 36.
[39]
Id., pp. 34-36.chanrobles virtuallaw libraryred
[40]
Records, p. 167.chanrobles virtuallaw libraryred
[41]
People vs. Timon, 281 SCRA 579, 597.chanrobles virtuallaw libraryred
[42]
People vs. Lagarto, 326 SCRA 693, 749 citing People vs. Nitcha, 240
SCRA
283.
[43]
Records, p. 77. Denied in an Order dated April 25, 1996. p. 194.
[44]
People vs. Timon, supra.chanrobles virtuallaw libraryred
[45]
People vs. Mendiola, 235 SCRA 116, 120 (1994), citing People vs.
Macuto,
176 SCRA 762 (1989), People vs. Vocente, 188 SCRA 100 (1990), People
vs.
Mariano, 191 SCRA 136.
[46]
People vs. Casimiro, 383 SCRA 390, 400 (2002), citing People vs.
Mapa, 220 SCRA 670 (1993); People vs. Dismuke, 234 SCRA 51, 61
(1994);
People vs. Laxa, 361 SCRA 622, 635 (2001).
[47]
TSN, February 1, 1995, pp. 41-43.chanrobles virtuallaw libraryred
[48]
TSN, December 15, 1994, p. 78.
[49]
Id., pp. 90-91.chanrobles virtuallaw libraryred
[50]
TSN , January 30, 1995, pp. 11-17.
[51]
Id., pp. 28-34.chanrobles virtuallaw libraryred
[52]
Board Regulation No. 3, S 1979 as amended by Board
Regulation
No. 2, S.1990
Subject:
Amendment of Board Regulation No. 7, series of 1974, prescribing the
procedure
in the custody of seized prohibited and regulated drugs, instruments,
apparatuses,
and articles specially designed for the use thereof.chanrobles virtuallaw libraryred
SECTION
1. All prohibited and regulated drugs, instruments, apparatuses
and
articles specially designed for the use thereof when unlawfully used or
found in the possession of any person not authorized to have control
and
disposition of the same, or when found secreted or abandoned, shall be
seized or confiscated by any national, provincial or local law
enforcement
agency. 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. Thereafter the seized drugs and paraphernalia shall be
immediately brought to a properly equipped government laboratory for a
qualitative and quantitative examination.chanrobles virtuallaw libraryred
The
apprehending team shall: (a) within forty-eight (48) hours from the
seizure
inform the Dangerous Drugs Board by telegram of said seizure, the
nature
and quantity thereof, and who has present custody of the
same,
and (b) submit to the Board a copy of the mission investigation
report
within fifteen (15) days from completion of the investigation. (Board
Regulation
No. 2, S.1990).
[53]
People vs. Mendiola, supra., note 41.chanrobles virtuallaw libraryred
[54]
People vs. Sadie, 149 SCRA 240, 243 (1987).
[55]
361 SCRA 622, 634 (2001).chanrobles virtuallaw libraryred
[56]
TSN (Anso), February 1, 1995, p. 18; TSN (Cabato) December 20, 1994, p.
71.
[57]
TSN (Baldovino, Jr), TSN, December 15, 1994, p. 85; TSN (Cabato)
December
20, 1994, p. 63.
[58]
TSN, February 15, 1996, p. 16.chanrobles virtuallaw libraryred
[59]
Records, p. 27. |