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CARLO LUCERO
Accused.
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DEMURRER TO EVIDENCE
3. Accused was charged with the violation of Sec. 5 and 11 of R.A. No. 9165
(The Comprehensive Dangerous Drugs Act of 2002) which respectively states that:
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Otherwise, if the quantity involved is less than the foregoing quantities,
the penalties shall be graduated as follows:
xxx
(3) Imprisonment of twelve (12) years and one (1) day to twenty (20) years and a
fine ranging from Three hundred thousand pesos (P300,000.00) to Four hundred
thousand pesos (P400,000.00), if the quantities of dangerous drugs are less than
five (5) grams of opium, morphine, heroin, cocaine or cocaine hydrochloride,
marijuana resin or marijuana resin oil, methamphetamine hydrochloride or
"shabu", or other dangerous drugs such as, but not limited to, MDMA or
"ecstasy", PMA, TMA, LSD, GHB, and those similarly designed or newly
introduced drugs and their derivatives, without having any therapeutic value or if
the quantity possessed is far beyond therapeutic requirements; or less than three
hundred (300) grams of marijuana.”
“In every prosecution for the illegal sale of shabu, under Section 5, Article
II of RA 9165, the following elements must be proved: "(1) the identity of the
buyer and the seller, the object and the consideration; and (2) the delivery of the
thing sold and the payment therefor. x x x What is material in a prosecution for
illegal sale of dangerous drugs is the proof that the transaction or sale actually
took place, coupled with the presentation in court of the corpus delicti" or the
illicit drug in evidence. On the other hand, in prosecuting a case for illegal
possession of dangerous drugs under Section 11, Article II of the same law, the
following elements must concur: "(1) the accused is in possession of an item or
object, which is identified as a prohibited drug; (2) such possession is not
authorized by law; and (3) the accused freely and consciously possessed the
drug.3
5. The prosecution presented two (2) witnesses: PO2 Lutrago and SPO2
Sudaria. They also offered Exhibits A to E, including its respective sub-markings, as their
evidence to prove said elements.
6. In view of the foregoing, accused moves for the dismissal of the instant
case based on any or all of the following grounds:
IV. The request for laboratory examination of the seized “shabu” was
submitted to the crime laboratory more than 24 hours from the time it was
seized
3 People of the Philippines v. Jay Montevirgen, GR No. 189840, December 11, 2013
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DISCUSSION
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copy, or by a recital of its contents in some authentic document, or by the
testimony of witnesses in the order stated.
11. In the case at bar, the prosecution failed to comply with the
abovementioned requirements. In fact, all their documentary evidence were bears mere
provisional markings. Even after filing their formal offer of evidence, the prosecution
failed to present the original copies of the said documents in Court.
12. During trial, the prosecution had stated that they would be presenting the
original of the PDEA coordination document. Assuming that the originals were indeed
lost, a party must first present to the court proof of loss or other satisfactory explanation
for the non-production of the original instrument. 7 In this regard, the prosecution has
failed to prove that the originals had been lost or could not be produced in Court after
reasonable diligence and good faith in searching for the originals, hence a violation of the
best evidence rule.
15. Section 21(a) of RA 9165 provides that “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.
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16. Given the foregoing, the prosecution was not able to prove the authenticity
of the drug specimen when Officer Sudaria failed to identify any of the markings on the
seized shabu.
17. Section 21(b) of RA 9165 provides that “within 24hours upon confiscation
of dangerous drugs, the same shall be submitted to the PDEA Forensic Laboratory for a
qualitative and quantitative examination.
18. A close examination of the IRR of RA 9165 readily reveals that the
custodial chain rule admits of exceptions. Non-compliance with Sec. 21 does not, by
itself, render the arrest of the accused illegal or the items seized/confiscated from the
accused inadmissible in evidence. What is essential is “the preservation of the integrity
and the evidentiary value of the seized items, as the same would be utilized in the
determination of the guilt or innocence of the accused.” [People vs. Cortez, G.R. No.
183819, July 23, 2009]
19. In this regard, the prosecution had failed to establish convincingly the
chain of custody of the alleged seized “shabu”, and hence, in violation of Sec. 21 of R.A.
No. 9165.
20. A buy-bust operation has a significant downside that has not escaped the
attention of the framers of the law. It is susceptible to police abuse, the most notorious of
which is its use as a tool for extortion. Accordingly, specific procedures relating to the
seizure and custody of drugs have been laid down in the law for the police to strictly
follow. The prosecution must adduce evidence that these procedures have been followed
in proving the elements of the defined offense. [People v. Garcia, 580 SCRA 259,
February 25, 2009)
21. Given the foregoing, accused respectfully moves for the dismissal of the
instant case FOR FAILURE OF THE PROSECUTION TO PROVE THE GUILT OF
THE ACCUSED BEYOND REASONABLE DOUBT.
RELIEF
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Malaybalay City, Bukidnon
By:
Notice of Hearing
PRIVATE PROSECUTOR
Malaybalay City, Bukidnon
Gentlemen:
Please take notice that this motion will be submitted for the consideration and approval of
the Honorable Court on February 19, 2018, or any date most convenient to the calendar
of the Court.
Copy Furnished:
By Personal Service –
PRIVATE PROSECUTOR
Malaybalay City, Bukidnon