Republic of the Philippines

DEPARTMENT OF JUSTICE
NATIONAL PROSECUTION SERVICE
Office of the City Prosecution
Digos City, Davao del Sur

SPO1 CLEMENTE PAULATE,

PO3 ELVIN PALAO, NPS DOCKET NO. 12345
Complainants,

-versus-

ROLANDA STONEY DELA ROSA, FOR: VIOLATION OF

Respondent. SECS. 5 and 11 of
R.A. 9165
x------------------------------x

Republic of the Philippines )

Digos City, Davao del Sur) S. S.
x------------------------------x

COUNTER-AFFIDAVIT

I,Rolanda Stoney Dela Rosa of legal age, Filipino,

married and a resident of Bonifacio Corregidor, Digos City, Davao
del Sur, Philippines, under oath depose and state THAT:

I- PREFATORY:

A buy-bust operation is a form of entrapment in which the

violator is caught in flagrante delicto and the police officers
conducting the operation are not only authorized but duty-bound
to apprehend the violator and to search him for anything that
may have been part of or used in the commission if the crime
(People vs Mateo, GR. No 1794978, July 28, 2008, 560 SCRA
397).

However, where there was no really buy-bust operation

conducted, it cannot be denied that the elements for illegal sale
of prohibited drugs cannot be duly proven despite the
presumption of regularity in the performance of official duty and
the seeming straightforward testimony in court by the arresting
police officers. After all, the indictment for illegal sale of
prohibited drugs will not have a leg to stand on.

This is the situation in the instance case.

II.TIMELINESS/ PROPRIETY OF THE

COUNTER-AFFIDAVIT:

1. I am the same Rolanda Stoney Dela Rosa, who is being

charged with Violation of Sections 5 & 11 of RA 9165, now
pending before the Office of the City Prosecutor of Digos
City, Davao del Sur docketed as NPS No. 12345;

2. I was arrested allegedly caught red handed in a buy-bust

operation conducted by members of the Philippine National
Police (PNP) presently assigned at Digos City Polie Station
and designated as members of Station Anti-illegal Drug Unit
(SAIDU) of Digos City, Davao del Sur, purportedly as a
result of selling and trading illegal drugs commonly known
as shabu or Methamphetamine Hydrochloride on
September 5, 2016 at more or less 5:30 in the afternoon
and not beyond 8:00 in the evening as alleged by the
policemen, at Bonifacio 8th, Barangay Zone 3, Digos City,
Davao del Sur;

3. An Inquest Proceeding was conducted the following day,

September 6, 2016. I opted to avail of my right to a
preliminary investigation and voluntarily executed a waiver
of Article 125 of the Revised Penal Code. On the same day, I
received a Subpoena from the Office of the City Prosecutor
directing me to submit my Counter-Affidavit and other
controverting evidence within ten (10) days from receipt
thereof or until September 16. Thus, the same is
seasonably filed.

III. COUNTER-STATEMENTS/ DEFENSES

4. I am filing this Counter-Affidavit to refute the false and

fictitious allegations of the police officers against me
pertaining to the incident last September 5, 2016 at about
more or less 5:30 in the afternoon;

5. The complaints hurled against me are FALSE, BLATANT LIES,

MERE FABRICATIONS designed to pin me down for the
charges which I am not guilty of. I state for the record that
on the above-mentioned date and time, I DID NOT SELL
OR HAVE IN MY POSSESSION ANY ILLEGAL DRUGS
AND NO BUY-BUST OPERATION ACTUALLY HAPPENED.
I vehemently DENY all the allegations in the respective
Affidavits of the law enforcers for being BASELESS. THE
TRUTH OF THE MATTER are as follows:

a) On the 5th of September 2016, at about 4:30 in the

afternoon, I arrived home from Colorado, Digos City. I
rested for a while in our house and at around 5:15 in
the afternoon, I decided to go to Bonifacio 8 th (the
subsequent street next to Bonifacio Corregidor). I went
there to have my hair cut at Beauty Salon. I also
went there to chitchat with my friends. That is what
I commonly do during my past time.

While walking the street of Bonifacio 8th, coming from

our house at Bonifacio Corregidor, I noticed a red car
parked almost in front of the lot where a hollow block
factory was situated. The hollow block factory is
situated two (2) blocks away from Beauty salon.

b) Several minutes after getting inside Beauty Salon, 2

unidentified men in civilian clothes (who later identified
themselves as policemen) on board a motorcycle
suddenly stopped outside the salon. Then one of them
(PO1 Paulate) went inside and asked me, to quote:
MAAM, ASA GANI TONG HOLLOWBLOCKAN NI
PANSAN? (MAAM, DO YOU KNOW THE HOLLOW BLOCK
FACTORY OF PANSAN?), to which I went outside the
Salon with him and replied: NAAY HOLLOWBLOCKAN
DIHA SA UNAHAN PERO DI KO SIGURADO KUNG KAY
KINSA NA. (THERE IS A HOLLOW BLOCK FACTORY
AHEAD, BUT I AM NOT CERTAIN AS TO WHO OWNS
IT.);

c) Without further saying a word, the other man (PO3

Palao) alighted from his motorcycle and told me
discreetly and in a low tone of voice, to quote: AYAW
NA UG KALAMPAG DIHA MAAM, MGA PULIS MI (JUST
DONT RESIST MY FRIEND, WE ARE POLICE OFFICERS)
and he instantaneously handcuffed both my hands and
the PO3 Paulate inserted a pack of white substance
inside the pocket of my pants.
 Outrageous of what happened, I asked the man who
arrested me (who is now the complainant in this case,
P03 Clemente Paulate, a member of the Philippine
National Police), as to why I was arrested as I had not
done any transgression of the law, but he did not
answer me and instead he and his partner brought me
to the nearby closed store, located at Bonifacio 8 th
corner Mabini Street.

At that juncture, a commotion ensued as another police

officer arrived.

d) I was directed to sit at the bench in front of the store

and there I got the biggest shock of my life when PO3
Clemente Paulate showed to me a 500Php bill
which was folded and told me, to quote: GIKAN DAW
NI SA IMO. I later learned that the said bill was the
one allegedly used as a marked money which they
said were purportedly recovered from my possession.
He likewise made a bodily search on my person and
there found the illegal drug to which he himself earlier
inserted in my pocket;

e) Subsequent thereto, I was taken on board a red car

and was brought to the Intelligence Department of
Digos City Police Station where I was made to wait
until 10:00 in the evening. While there, the police
officers proposed a bargain/deal. I was told, to quote,
KUNG NAA KAY MABALIGYANG ULO SA AMO,
PAGAWASON KA NAMO, or in other words, if I could
pinpoint somebody who is actively involved in trading
drugs, they would set me free;

6. The time of the arrest which was beyond 8:00PM (as

stated in the Affidavits of the Poseur-Buyer and the Arresting
Officer) is adamantly BELIED; for the truth of the matter
is that, I was arrested at about 5:30PM on September 5,
2016, when it was not yet dark and in the presence of the
residents of Bonifacio 8th. Many residents actually witnessed
what truly happenedthat there was no buy-bust operation.
Yet, many of them are apprehensive to testify against the
police officers for fear that their lives might be put in
jeopardy.
 IV- ARGUMENTS/ DISCUSSIONS:

7. The statements of the poseur-buyer and the arresting officer

in their respective sworn statements, that there was
allegedly a buy-bust operation ARE ABSOLUTELY UNTRUE.
THERE WAS NO BUY-BUST OPERATION TO SPEAK OF.
There being no bona-fide buy-bust operation to speak of,
the police officers committed an Illegal Arrest since I was
arrested without a warrant and my warrantless arrest was
not done under any of the circumstances enumerated in
Section 5, Rule 113 of the 1985 Rules of Criminal Procedure.

In fact, I and my family are in the process of formally

charging the concerned police officers with the appropriate
administrative and criminal charges before the proper forum.

8. Moreover, my lawyer told me that the requisites for an

Illegal Sale of shabu are the following:

a. The identities of the seller, the object of the sale, and

the consideration;
b. The delivery of the thing sold and the payment of the
thing.

What is material in prosecution for Illegal Sale of shabu is

the proof that the transaction or sale actually took place.
In the instant case, there was no selling/trading of shabu
to anybody. On that particular time, I was just walking
along Bonifacio 8th Street when I was apprehended by the
police officers.

9. Further, for illegal possession of a dangerous drug, like

shabu, my lawyer informed me that the elements are:

a. That the accused is in possession of an item or

object that is dangerous drugs;
b. Such possession is not authorized by law; and
c. The accused freely and consciously possessed the
drug.

I could not be charged for Illegal Possession of shabu

because no shabu was found in my possession. The shabu
allegedly sold by me was merely planted. I was a victim of a
pseudo buy-bust operation. I was merely being framed up.
 The people present within the vicinity of the place
where the incident happened could truly attest that no
buy-bust operation actually happened.

Attached and marked as ANNEX 1 is the Affidavit of my

witness Joenalyn Mae G. Galang and made integral part hereof.

10. GRANTING FOR THE SAKE OF ARGUMENT THAT THERE WAS

INDEED A BONA FIDE BUY-BUST OPERATION IN THE
INSTANT CASE, THE CONDUCT OF THE ALLEGED BUY-
BUST OPERATION WAS PEPPERED WITH DEFECTS
WHICH RAISES DOUBTS ON THE INTEGRITY AND
EVIDENTIARY VALUE OF THE SEIZED ITEMS FROM
RESPONDENT.

My lawyer discussed to me that in People vs Doria,

the Court laid down the objective test in determining the
credibility of prosecution witnesses regarding the conduct of
buy-bust operations. It is the duty of the prosecution to
present a complete picture detailing the buy-bust
operation from the initial contact between the poseur-
buyer and the pusher, the offer to purchase, the
promise or payment of the consideration until the
consummation of the sale by the delivery of the illegal
drug subject of the sale.

While a buy-bust operation has been proven to be an

effective way to flush out illegal transactions that are
otherwise conducted covertly and in secrecy, 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 abuses.

VIOLATIONS OF THE PROCEDURES

PROVIDED IN SECTION 21 of R.A. 9165

There are pieces of evidence putting in doubt the

conduct of the buy-bust operation. The procedures
provided in Section 21 of R.A. 9165 were not
observed. The said provision requires the apprehending
team after seizure and confiscation, granting that there was
really a buy-bust operation, to immediately (1) conduct a
physical inventory; (2) photograph the same in the
presence of the accused or the person/s from whom
such evidence are confiscated or his representative or
 his counsel, a representative from the media and the
DOJ, and any elected public official who shall be
required to sign the copies of the Inventory and be
given a copy thereof.

a. Firstly, what is worth stressing is the absence of the

signature of the respondent or his authorized
representative in the Inventory Report of the
evidence/s seized, IN CLEAR VIOLATION OF TH STRICT
PROCEDURE UNDER SECTION 21 OF RA 9165;

b. Secondly, the inventory of the items were not

immediately conducted after seizure and confiscation
as it was done only at the police station. This was alleged
in the Affidavits of Poseur-buyer and the Arresting Officer;
and,

c. Lastly, there was no mention at all in the Affidavits of

the Poseur-buyer and the Apprehending Officer as to
whether or not they immediately marked the sachet of
shabu and as to who marked the same, which is in
flagrant violation of the provisions of Section 21 of RA
9165.

Crucial in proving CHAIN OF CUSTODY is the

MARKING of the seized drugs or other related items
IMMEDIATELY after they are seized from the accused.
Marking after seizure is the starting point in the custodial
link, thus it is vital that the seized contraband are
immediately marked because succeeding handlers of the
specimens will use the marking as reference, to separate
the marked evidence from the corpus of all other similar
evidence from the time they are seized from the accused
to the time they are disposed thus, obviating, switching,
planting, or contamination of evidence.

These irregularities committed by the said team

are, well-nigh, fatal to the prosecution as the
integrity and evidentiary value of the seized items
might not be preserved.

11. I am executing this affidavit to apprise the proper authorities

concerned of the foregoing facts and to the OUTRIGHT
DISMISSAL of the above-mentioned Complaint.
 IN WITNESS WHEREOF, I have hereunto affixed my
signature this 5th of November 2016 at Digos City, Davao del Sur,
Philippines.