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Republic of the Philippines


7th Judicial Region
Branch ___
Toledo City



Violation of Secs. 5

& 11,

Art. II, RA 9165


(with Entry of Appearance)
1. most respectfully enters appearance as counsel for the
accused in the instant case. Henceforth, it is requested that
all orders, pleadings, motions and all other processes of this
Honorable Court be furnished to the undersigned counsel at
his law office stated below.
2. Just because the offense with which an accused has been
charged is punishable by life imprisonment, reclusion
perpetua or death does not automatically deprive the said
accused the right to post bail.
3. In filing the instant motion, accused herein invokes her
constitutional rights: a. to be presumed innocent until the
contrary is proven, and; b. to post bail in order that she may
secure her temporary liberty during the pendency of the
instant case.
4. These constitutional rights read, in part, to wit:
Section 14 (2), Article III, 1987 Constitution
In all criminal prosecutions, the accused shall be
presumed innocent until the contrary is proved.
Section 13, Article III, 1987 Constitution

All persons, except those charged with ofenses

punishable by reclusion perpetua when evidence of
guilt is strong, shall, before conviction, be bailable
by sufficient sureties, or be released on
recognizance as may be provided by law.
5. In the case of People vs. The Honorable Presiding Judge of the
RTC of Muntinlupa City (G.R. No. 151005, June 8, 2004), it was
held that when the offense charged is punishable by death,
reclusion perpetua or life imprisonment, then, once an
accused invokes his right to post bail, it becomes the
mandatory duty of the trial court to conduct a hearing
for the determination of whether the evidence to be
used against the accused is strong or not. If, in the
said hearing, the trial court is convinced that the evidence
against the accused is not that strong, then, the accused may
be admitted to bail as guaranteed him by the Constitution.
6. Thus, the grant or denial of an application for bail is,
therefore, dependent on whether the evidence of guilt is
strong, which the lower court should determine in a hearing
called for the purpose.
7. In addition, the burden of showing that evidence of guilt
against the herein accused is strong lies on the prosecution,
and unless this fact is satisfactorily shown in a hearing
conducted for such purpose, the accused may be bailed at
the courts discretion. Section 8, Rule 114 of the Revised Rules
on Criminal Procedure explicitly states, to wit:
SEC. 8. Burden of proof in bail application. At the
hearing of an application for bail filed by a person
who is in custody for the commission of an ofense
punishable by death, reclusion perpetua, or life
imprisonment, the prosecution has the burden of
showing that evidence of guilt is strong.xxx
8. The records show that the evidence is insufficient to prove
that the evidence of guilt of the accused is strong for the
following reason, viz:
Non-compliance with the stringent
requirements set by law regarding
the physical inventory of the seized
items in the presence of persons
enumerated under the law.

9. Section 21 of Republic Act 9165 delineates the mandatory

procedural safeguards that are applicable in cases of buy bust
operations. In this case, accused quotes Section 21(1) of the
said law, as follows:
The apprehending 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;
10. A perusal of the records of the present case would show that
the stringent requirements set by law regarding the physical
inventory of the seized items in the presence of the
abovenamed persons were disregarded by the apprehending
11. As can be shown by the Certificate of Inventory, there was no
representative from the media during the physical inventory
of the seized drugs. Neither was there a representative from
the Department of Justice. It was only an alleged Barangay
Kagawad, a certain Ma. Juliet A. Matela, who was around
during the physical inventory. Moreover, the accused or her
representative was not made to sign the certificate of
12. The law is clear on the matter. Immediately after seizure and
confiscation, a physical inventory, photograph and signing
with the persons enumerated under Section 21(1), Article II of
Republic Act No. 9165 must be done.
13. Admittedly, noncompliance with the said requirement does
not necessarily render inadmissible the evidence seized from
the accused. For this reason, the last sentence of Section
21(a) of the Implementing Rules and Regulations of RA 9165)
provides for a saving mechanism in case no strict compliance
with the requirements took place. Section 21(a) states:
[P]rovided, 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.
14. Thus, noncompliance with the strict directive of Section 21 of
RA 9165 is not necessarily fatal as there may still be lapses in
the confiscation of evidence. However, it is important for the
apprehending officers to explain the reasons behind the
procedural lapses, and that the integrity and evidentiary value
of the seized evidence had been preserved. The justifiable
ground for noncompliance must be proven as a fact and we
cannot presume that these grounds exist.
15. In this case, the apprehending officers did not bother to offer
any explanation in their affidavits to justify their failure to
strictly comply with the requirements. They failed to show
why there were no representatives from the media and the
Department of Justice during the physical inventory, and why
the accused was not made to sign the certificate of inventory.
16. These errors are exacerbated by the fact that the
apprehending officers had ample time to comply with these
legal requirements as they had already monitored the
accused and put her on their watch list. They categorized the
accused as a confirmed level 3 illegal drug pusher and they
even ranked her on their target list for July 2014. Moreover,
they also conducted test buy operations three days prior to
her arrest.
17. In several cases, the Supreme Court has emphasized the
importance of compliance with the prescribed procedure in
the custody and disposition of the seized drugs. In the case of
People v. Tamayo, (GR No. 179029, August 12, 2010), the
Supreme Court held:
We have repeatedly declared that the deviation
compromises the integrity of the evidence. In
People v. Morales [G.R. No. 172873, March 19,
2010] we acquitted the accused for failure of the
buy-bust team to photograph and inventory the
seized items, without giving any justifiable ground
for the non-observance of the required procedures.
People v. Garcia [G.R. No. 173480, February 25,
2009] likewise resulted in an acquittal because no
physical inventory was ever made, and no
photograph of the seized items was taken under
the circumstances required by R.A. No. 9165 and its

implementing rules. In Bondad, Jr. v. People [G.R.

No. 173804, December 10, 2008] we also acquitted
the accused for the failure of the police to conduct
an inventory and to photograph the seized items,
without justifiable grounds.
We had the same rulings in People v. Gutierrez,
[G.R. No. 179213, September 3, 2009] People v.
Denoman,[G.R. No. 171732, August 14, 2009]
People v. Partoza,[G.R. No. 182418, May 8, 2009]
People v. Robles,[G.R. No. 177220, April 24, 2009]
and People v. dela Cruz,[G.R. No. 181545, October
8, 2008] where we emphasized the importance of
complying with the required mandatory procedures
under Section 21 of R.A. No. 9165.
18. In the case of People of the Philippines v. Zaida Kamag (GR
No. 174198, January 19, 2010), the Supreme Court said:
In sum, his testimony failed to show how the
integrity and evidentiary value of the item seized
had been preserved; no explanation was ever given
by SPO2 Sanchez to justify the non-compliance by
the buy-bust team with the prescribed procedures.
In fact, the records clearly reveal that the
prosecution did not even acknowledge the
procedural lapses committed by the buy-bust team
in the handling of the seized shabu.
The consequences of the above omissions
must necessarily be grave for the prosecution
under the rule that penal laws, such as RA
9165, are strictly construed against the
government and liberally in favor of the
accused. One consequence is to produce
doubts on the origins of the illegal drug
presented in court, thus leading to the
prosecutions failure to establish the corpus
delicti. Unless excused by the saving
mechanism, the acquittal of the accused must
19. If this Honorable Court permits, then the counsel for the
accused shall further expound the matter in the hearing to
be conducted for the purpose. The accused firmly believes
that it is only through such hearing that the weakness of the
evidence of the prosecution may be distinctly shown,
assuming that any such evidence exists.

WHEREFORE, invoking the accuseds constitutional rights
to post bail and to be presumed innocent, accused most
respectfully prays to be allowed to post bail after hearing to be
conducted for the purpose of determining the strength or
weakness of the prosecutions evidence.
All other reliefs just and equitable under the foregoing
premises are likewise prayed for.
Respectfully submitted. August 26, 2014. Cebu City (for
Toledo City), Philippines.