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POSSIBLE 2022 BAR QUESTION ON RA NO. 9165
BY Judge Marlo B. Campanilla

Dimas was arrested after a valid buy-bust operation. Macario, the policeman who acted as poseur-buyer, inventoried and photographed ten (10) sachets of shabu in the presence of a barangay tanod. The inventory was signed by Macario and the tanod, but Dimas refused to sign. As Macario was stricken with flu the day after, he was able to surrender the sachets to the PNP Crime Laboratory only after four (4) days. During pre-trial, the counsel de oficio of Dimas stipulated that the substance contained in the sachets examined by the forensic chemist is in fact methamphetamine hydrochloride or shabu. Dimas was convicted of violating Section 5 of RA 9165. On appeal, Dimas questioned the admissibility of the evidence because Macario failed to observe the requisite “chain of custody” of the alleged “shabu” seized from him. On behalf of the State, the Solicitor General claimed that despite non-compliance with some requirements, the prosecution was able to show that the integrity of the substance was preserved. Moreover, even with some deviations from the requirements, the counsel of Dimas stipulated that the substance seized from Dimas was shabu so that the conviction should be affirmed. Rule on the contention of the State. (2016 Bar Exam)

The contention of the State is meritorious.

To establish the first link in the chain of custody, and that is the seizure of the drug from the accused, the prosecution must comply with Section 21 of R.A. No. 9165 as amended by R.A. No. 10640.

Under Section 21 of RA No. 9165 as amended, the inventory and photography of the seized items must be made in the presence of “at least three persons”, to wit: (1) the accused; (2) elected public official, and (3) the media or representatives of National Prosecution Service. Compliance with the three-witnesses rule is mandatory. So as not to render the seizures of evidence void, two requisites must be present: (1) justifiable ground for not complying with the three-witnesses rule and (2) that the integrity and evidentiary value of the evidence had been preserved. (People vs. Claudel, G.R. No. 219852, April 3, 2019, Justice Caguioa)

In this case, Macario failed to comply with the three-witnesses rule since the inventory and photography of the seized item were made in the presence of two witnesses, the accused and barangay tanod, and Macario failed to explain a justifiable ground for the non-compliance of the rule. Hence, the seizure of evidence is void. (People vs. Lim, G.R. No. 231989, September 4, 2018)

However, Dimas belatedly questioned the admissibility of the evidence on appeal. Settled is the rule that the issue of non-compliance with Section 21 of R.A. No. 9165 cannot be raised for the first time on appeal. Hence, the defense of the accused mus be rejected. (People vs. Badilla, G.R. No. 218578, August 31, 2016)

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