Drug charges vs Borja dismissed

Drug charges vs Borja dismissed

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 Eric John “EJ” Borja shown with his parents and counsels shortly after his release from NBI detention. (L-R) Atty. Jeric Lim, Atty. Menedio Thadeus Bernido, Atty. Aleck Francis Lim, EJ, Atty. Harold Bayarcal and his parents | (CMV)

Upholding the sanctity of a person’s constitutionally guaranteed right against unreasonable searches and seizures, the Regional Trial Court (RTC) Branch 2, City of Tagbilaran dismissed the criminal case for selling and possession of illegal drugs (ecstacy tablets)  against Eric John “EJ” Borja.

In a 12-page order signed by RTC 2 Presiding Judge Jennifer Chavez-Marcos on February 15, 2020, the court order stressed that the prosecution failed to hurdle the “strict scrutiny” imposed by the justice system in the conduct of warrantless arrests “to ensure that law-abiding citizens are not unlawfully induced to commit an offense. Criminals must be caught but not at all cost.”

MERITS OF THE CASE

The dismissal order was granted by the court as it agreed with the grounds raised by the counsels of Borja to quash the information in the criminal cases for violation of section 5 (selling) and section 11 (possession) of illegal drugs underRepublic Act (RA) 9165 known as the Comprehensive Dangerous Drugs Act of 2002.

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Counsels – Aleck Francis “Coycoy” Lim, MenedioThadeusBernido, Harold Bayarcal, and John Jeric Lim argued that the warrantless arrest of Borja at Chriscentville Hotel room 207 was illegal and no buy-bust operation whatsoever was conducted against their client.

In short, the court ruled that Borja was “merely induced” to bring the items to the hotel and had no intention of possessing or selling the ecstasy tablets “if it were not for the scheme adopted by the government agents.”

“Simply put, the accused was cajoled into having a sexual orgy with the attractive confidential informant along with two unknown women and lured into bringing ecstacy to enhance the experience.”

Short of saying that the arrest of Borja was a frame-up, the court said that instigation, “like a frame-up” has been viewed by the High Court with disfavor since it has been a common standard defense ploy in most prosecutions for violations of RA 9165.

Borja was released from the NBI detention cell on Friday afternoon upon orders by the court where he was held since his arrest pending resolution of his case.

ILLEGAL ARREST

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Borja was arrested by a team of Philippine Drug Enforcement Agency (PDEA) and NBI agents on August 10, 2019, at Chriscentville Hotel, Gallares St., Tagbilaran City in a buy-bust operation that yielded six tablets of dangerous drugs allegedly laced with Brolamfetamine (BOB) popularly known as “ecstacy.”

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Two of the six alleged “ecstacy” tablets were declared part of the buy-bust valued at P3,000 while the four tablets were in the possession of Borja. Two tablets were later found negative of BOB according to a certification issued by the NBI Forensic Chemist.

NO BUY BUST 

The court proceedings relied heavily on the testimony of “NBI confidential informant” Via Marie Hontanosas, 21 years old female and a resident of San Jose St., Tagbilaran City.

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Hontanosas, despite a gruelling examination by both the prosecution and defense, testified that there was no truth to the allegation that Borja sold ecstacy tablets to undercover agents or to any person for that matter in the evening of August 10, 2019.

She further asserted that she was personally present in room 207 of the Chriscentville Hotel and fully attests to the fact that no selling nor buying of ecstasy ever took place. EJ was just arrested immediately.

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Hontanosas claimed that the NBI sought her assistance for a chance to interview Borja in connection with an ongoing investigation on the proliferation of ecstasy in a university area.

INSTIGATION

Upon the instructions of the NBI, Hontanosas got in touch with Borja to arrange a wild send-off party with “ecstasy” as the main menu.  Borja and Hontanosas were reportedly scheduled to leave the country. The NBI-PDEA office provided two female undercover agents posing as party-goers to lure Borja to provide the ecstacy tablets as requested by Hontanosas.

Based on screenshots of text messages presented in court and the testimony of Hontanosas, there was no semblance of an illegal drug transaction as Borja even chided Hontanosas that “Dkomamaligyaayoihahamo ask sako. Pag sure Viahahahaikawlageni. Kulbaanako.Drags rabatawnni.” (I am not selling haha I will still ask. Are you really Via? These are drugs we are talking about.).

The sudden appearance of armed law enforcement agents in the hotel room minutes after the arrival of Borja caught Hontanosas by surprise as she was unaware of any buy-bust operation by the NBI.

INCREDIBLE

In the motion to quash information, counsels of Borja portrayed the alleged buy-bust scenario as “not only impossible, ridiculous, preposterous and illogical but also totally and completely unbelievable.”

“It is the first time in the history of the Province of Bohol, specifically in drug transactions that the alleged buyer set and dictated the time, date, place, and manner of the transaction.”

ENTRAPMENT VS INSTIGATION

In explaining her order, Judge Marcos drew a line between entrapment (buy-bust operations) and instigations where the instigator induces the accused to commit an offense and as such becomes a co-principal himself while in entrapment, ways and means are resorted to by law enforcement officers to trap and capture the lawbreaker in the execution of his criminal plan.

Also, in entrapment, the crime had already been committed while in instigation, “it was not and could not have been committed without the encouragement of the law enforcers”.

The court order clearly spelled out the origin of the crime in entrapment and instigation wherein in entrapment the idea, means, and resolve to commit the crime comes from the criminal while in instigation, the law enforcer plans the commission of the crime and suggests to the accused to agree and carry out the scheme.

Borja’s alleged arrest for selling and possession of ecstacy tablets hugged the headlines of local and national papers and was grist for the rumor mills of social media even as his father, City Administrator Leonides “Edi” Borja immediately filed an indefinite leave to forestall suspicion of influence peddling.

Mayor Baba Yap appointed Cathyline O. Torremocha to sit as Officer-in-Charge (OIC) city administrator and assured the public that he will not meddle in the Borja case and use his position to influence the outcome of the investigation. (Chito M. Visarra)

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