Demurrer-fai.docx

Republic of the Philippines REGIONAL TRIAL COURT XXX

THE PEOPLE OF THE PHILIPPINES, Plaintiff,

CRIM. CASE NO. XXX

- versus FOR: XXX XXX, Accused. x - - - - - - - - - - - - - - - -x THE PEOPLE OF THE PHILIPPINES, Plaintiff,

CRIM. CASE NO. XXX

- versus FOR: XXX XXX, Accused. x- - - - - - - - - - - - - - - -x JOINT-ORDER For resolution of this Court is the Demurrer to the Evidence filed by accused thru counsel stating that the instant information for Violation of Section 5 and 11, Article II of R.A. 9165 against herein accused XXX should be dismissed for insufficiency of evidence. JOINT-ORDER Crim. Case No. 15-3406 Crim. Case No. 15-3407 Page Two

The prosecution, despite receipt of the order of the court to comment, did not submit any comment on the demurrer to the evidence filed by the accused. XXX was charged with Violation of Section 5 of Article II, R.A. 9165 in the following information: “That on or about the 30th day of January 2015 in the Municipality of Ubay, Province of Bohol, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there, without being authorized by the Philippine government or by law, willfully and unlawfully, sell, deliver, and hand over, one (1) small heat-sealed transparent plastic sachet containing zero point zero three (0.03) gram of Methamphetamine Hydrochloride or shabu, a dangerous drug gram to the poseur buyer for and in consideration of the amount of Two Hundred Pesos (200.00) received by the accused, to the damage and prejudice of the Government of the Republic of the Philippines. “Acts contrary to Section 5, Article II of R.A. 9165, otherwise known as the Comprehensive Dangerous Drugs Acts of 2002.” XXX was also charged with Violation of Section 11 of Article II, R.A. 9165 in the following information: “That on or about the 30th day of January 2015 in the Municipality of Ubay, Province of Bohol, Philippines, and within the jurisdiction of this

Honorable Court, the above-named accused, did then and there, without being authorized by the

Philippine Government or by law, willfully and unlawfully, possess and have in his custody and control, one (1) small heat-sealed transparent plastic sachet containing zero point fifty two (0.52) gram of methamphetamine hydrochloride or shabu to the damage and prejudice of the Government of the Republic of the Philippines. “Acts contrary to Section 11, Article II of R.A. 9165, otherwise known as the Comprehensive Dangerous Drugs Acts of 2002.” On the scheduled arraignment1, accused XXX, duly assisted by counsel, voluntarily pleaded not guilty to the charges lodged against him. Pre-trial was thereafter conducted2 and, thereafter, trial followed where the prosecution presented three witnesses. The evidence of the prosecution is hereby summarized as follows: First witness is XXX 46 year old, married, a Forensic Chemical Officer of the Bohol Crime Laboratory, Tagbilaran City and a graduate of BS Chemical Engineering. The presentation of P/SUPT. Pinky Acog as an expert witness was stipulated upon by the parties. She testified that their office received a letter request in the case of XXX. There were two specimens submitted for laboratory examination. Upon receipt of the specimen, she conducted the qualitative examination on the specimen submitted. She reduced into writing her findings under Chemistry Report No. D-82-2015. She identified the specimens marked as FRI-2 (Exhibit J) and FRI-3 (Exhibit K) as the two specimens that their office received. She identified her signature on Chemistry Report No. D-82-2015 (Exhibit E). During the conduct of qualitative examination with FRI-2 with the weight 1 2

Order dated March 26, 2015. Pre-trial Order dated June 11, 2015.

of 0.03 gram and FRI-3 with the weight of 0.52 gram, both specimens submitted yielded positive result to the test for the presence of methamphetamine hydrochloride. On cross examination, she testified that she did not know who made the markings on FRI-1, FRI-2 and FRI-3. However, she confirmed that she made the red markings on the specimens. She also confirmed that she was not the one who received the specimens but it was received by her subordinateXXX as it is his signature which appeared in the request. The specimen together with the letter request were turned over by XXX on January 31, 2015 at 11:30 in the morning. They had an office copy of the letter request which was rubber stamp mark in the crime laboratory section proving the time and date that it was turned over by XXX to her for the laboratory examination. She confirmed that she received the same specimens which XXX received. There was no possibility of contamination or switching between the time of receipt of XXX and the time she received it because what was reflected in the letter-request as to the markings indicated on the specimen itself was the same markings and specimen that she received during the conduct of the examination. By the time she received it, the police officer did XXX

not weight the specimens since they relied on the markings and the police officer had no authority to open the specimen. They also had no authority as to weighing if ever they would weigh it which included the container. Upon weighing it, she would not include the container. The examination only pertains to qualitative. In dangerous drugs examination, they could examine both qualitative and quantitative examination. However, as to the capacity of the Provincial Office, they only conducted qualitative examination which also determines the presence of dangerous drugs. While, qualitative examination aside from the contents or presence of dangerous drugs, it could also determine the percentage of the substance. As an expert witness, the presence or determination of dangerous

drugs contents of a substance is not actually necessary as to the presence since the quantitative examination is relevant as to the purity of the substance. It is stated on the provision qualitative and quantitative. She confirmed that no quantitative examination was made on the specimens. If a quantitative examination is done on the specimen itself, there is an indication of the purity of the substance. If during the conduct of the quantitative examination, the weight of the substance, for example is 100 grams and in the qualitative 100 grams but the quantitative examination findings was 50 percent pure. Then, the weight of the methamphetamine hydrochloride would reduce to 50 grams. She confirmed that the fact that there was no quantitative examination did not affect her findings that the substance is positive of methamphetamine hydrochloride. She did not have personal knowledge as to the source because she did not know who made the black markings.

XXX

Second prosecution witness is XXX, 40 years old, married, a resident of Cumaang, Clarin, Bohol, assigned at Bohol Provincial Crime Laboratory, and a college graduate. He testified that their office received a letter request for laboratory examination from XXXn with regards to the case of XXX. The attachment was the specimen subject for laboratory examination. He identified the two sachets marked as FRI-2 and FRI-3 dated and signed as the same sachets that he received at his office. Upon receipt of the specimens, he turned over the two sachets to XXX XXX. He reflected the turn-over of the specimens to Acog. In their copy of the letter request from Ubay Police Station, they had stamped from chemistry section and reflected the time, date received, turned over by and received by. He identified the stamped turned over time of 11:30 in the morning of January 31, 2015.

It was XXX who submitted the specimens and the request at the crime lab. The proof that their office received such request was the presence of their office stamp, Bohol Provincial Crime Laboratory Office, reflected the time, date received, delivered by, received by and has a control number. He identified the signature of XXX on the request since he was present when the latter signed the document. He testified that XXX XXX was already dead but he forgot the date of death. His first encounter with XXX during the Abusayaf encounter. The exact date was on April 11. He also identified his signature thereto. On cross examination, he testified that upon receipt of the specimen that the specimens were turned over to him by XXX

markings. He had no personal knowledge as to who made the markings as well as the source and how it was acquired by Police Officer Nazareno. He had no proof that he turned over the request to XXX any documentary proof was never filed before the court. Third prosecution witness is XXX He testified that he had executed an affidavit in relation to this case. He identified the affidavit he executed (Exhibit B) and identified his signature thereto. He affirmed and confirmed that the allegations in his affidavit were true and correct based on his personal knowledge. He affirmed and confirmed that he executed the affidavit freely and voluntarily. He was designated as back-up while XXX. During the buy bust operation, XXX 7 to 10 meters away from them. From where he was situated, he could still recognize the subject person to whom XXX was transacting. Police Officer Nazareno was transacting with XXX Upon the arrest of XXX, it was XXX. XXX was able to recover a medium sized illegal item. It was XXX who conducted the markings. He and the accused were just beside XXX when the latter conducted the inventory. He identified Exhibit C as the affidavit of PXXX

inventory sheet because he was beside them when they signed. It was XXX who submitted the sachets of shabu at the Bohol Crime Laboratory. He was not with XXX when the latter submitted the sachets of shabu at the Crime Lab. He identified the shabu with marking XXX He XXX XXX Ruling now on the demurrer to evidence, the court is of the finding that the demurrer to evidence is meritorious. The prosecution evidence presented is short of the proof beyond reasonable doubt that is required from the prosecution in proving a crime in criminal cases. A careful review of the above testimonies of the witnesses of the prosecution leads this court to conclude that said evidence is insufficient to prove the two cases filed against the accused. XXX

the one who allegedly transacted with the accused, the case of illegal sale of shabu cannot prosper. XXX “Conviction must rest on hard evidence showing that the accused is guilty beyond reasonable doubt of the crime charged. In criminal cases, moral certainty -- not mere possibility -determines the guilt or the innocence of the accused. Even when the evidence for the defense is weak, the accused must be acquitted when the

JOINT-ORDER Crim. Case No. 15-3406 Crim. Case No. 15-3407 Page Twelve

prosecution has not proven guilt with the requisite quantum of proof required in all criminal cases.”3 Moreover, the Supreme Court also ruled in one case4, as follows: “Where the evidence on an issue of fact is in question or there is doubt on which side the evidence weighs, the doubt should be resolved in favor of the accused.5 If inculpatory facts and circumstances are capable of two or more explanations, one consistent with the innocence of the accused and the other consistent with his guilt, then the evidence does not fulfill the test of moral certainty and will not justify a conviction.6 WHEREFORE, in view of all the foregoing, the Demurrer to Evidence filed by the accused is hereby GRANTED. XXX These two cases are, therefore, ordered both DISMISSED. As it appears on record that the accused is under detention XXX SO ORDERED. Given this 22nd day of August 2018 at XXX 3

People v. Mandao et al., G. R. No. 135046, December 3, 2002 citing the cases Evangelista v. People, 337 SCRA 671, August 14, 2000 and People v. Albacin, 340 SCRA 249, 9/13/2000. 4 Amanquiton v. People, G. R. No. 186080, August 14, 2009. 5 People v. Abarquez, G.R. No. 150762, 20 January 2006, 479 SCRA 225, 239. 6 People v. Lagmay, 365 Phil. 606, 633 (1999).