August 15, 2017 promulgated by the Supreme Court pursuant to its constitutional rule-making power that breathes life
promulgated by the Supreme Court pursuant to its constitutional rule-making power that breathes life to plea bargaining. It cannot be found
G.R. No. 226679
SALVADOR ESTIPONA, JR. y ASUELA, Petitioner,
vs.
HON. FRANK E. LOBRIGO, Presiding Judge of the Regional Trial Court, Branch 3, Legazpi City, Albay, and PEOPLE OF THE PHILIPPINES,
Respondents.
DECISION
PERALTA, J.:
Challenged in this petition for certiorari and prohibition1 is the constitutionality of Section 23 of Republic Act (R.A.) No. 9165, or the
"Comprehensive Dangerous Drugs Act of 2002, "2 which provides:
SEC 23. Plea-Bargaining Provision. - Any person charged under any provision of this Act regardless of the imposable penalty shall not be
allowed to avail of the provision on plea-bargaining.3
The facts are not in dispute.
Petitioner Salvador A. Estipona, Jr. (Estipona) is the accused in Criminal Case No. 13586 for violation of Section 11, Article II of R.A. No. 9165
(Possession of Dangerous Drugs). The Information alleged:
That on or about the 21st day of March, 2016, in the City of Legazpi, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, not being lawfully authorized to possess or otherwise use any regulated drug and without the corresponding license
or prescription, did then and there, willfully, unlawfully and feloniously have, in his possession and under his control and custody, one (1)
piece heat-sealed transparent plastic sachet marked as VOP 03/21/16- l G containing 0.084 [gram] of white crystalline substance, which
when examined were found to be positive for Methamphetamine Hydrocloride (Shabu), a dangerous drug.
CONTRARY TO LAW.4
On June 15, 2016, Estipona filed a Motion to Allow the Accused to Enter into a Plea Bargaining Agreement,5 praying to withdraw his not
guilty plea and, instead, to enter a plea of guilty for violation of Section 12, Article II of R.A. No. 9165 (Possession of Equipment, Instrument,
Apparatus and Other Paraphernalia for Dangerous Drugs) with a penalty of rehabilitation in view of his being a first-time offender and the
minimal quantity of the dangerous drug seized in his possession. He argued that Section 23 of R.A. No. 9165 violates: (1) the intent of the
law expressed in paragraph 3, Section 2 thereof; (2) the rule-making authority of the Supreme Court under Section 5(5), Article VIII of the
1987 Constitution; and (3) the principle of separation of powers among the three equal branches of the government.
In its Comment or Opposition6 dated June 27, 2016, the prosecution moved for the denial of the motion for being contrary to Section 23 of
R.A. No. 9165, which is said to be justified by the Congress' prerogative to choose which offense it would allow plea bargaining. Later, in a
Comment or Opposition7 dated June 29, 2016, it manifested that it "is open to the Motion of the accused to enter into plea bargaining to
give life to the intent of the law as provided in paragraph 3, Section 2 of [R.A. No.] 9165, however, with the express mandate of Section 23
of [R.A. No.] 9165 prohibiting plea bargaining, [it] is left without any choice but to reject the proposal of the accused."
On July 12, 2016, respondent Judge Frank E. Lobrigo of the Regional Trial Court (RTC), Branch 3, Legazpi City, Albay, issued an Order denying
Estipona's motion. It was opined:
The accused posited in his motion that Sec. 23 of RA No. 9165, which prohibits plea bargaining, encroaches on the exclusive constitutional
power of the Supreme Court to promulgate rules of procedure because plea bargaining is a "rule of procedure." Indeed, plea bargaining
forms part of the Rules on Criminal Procedure, particularly under Rule 118, the rule on pre-trial conference. It is only the Rules of Court
in any statute.
Without saying so, the accused implies that Sec. 23 of Republic Act No. 9165 is unconstitutional because it, in effect, suspends the operation
of Rule 118 of the Rules of Court insofar as it allows plea bargaining as part of the mandatory pre-trial conference in criminal cases.
The Court sees merit in the argument of the accused that it is also the intendment of the law, R.A. No. 9165, to rehabilitate an accused of a
drug offense. Rehabilitation is thus only possible in cases of use of illegal drugs because plea bargaining is disallowed. However, by case law,
the Supreme Court allowed rehabilitation for accused charged with possession of paraphernalia with traces of dangerous drugs, as held in
People v. Martinez, G.R. No. 191366, 13 December 2010. The ruling of the Supreme Court in this case manifested the relaxation of an
otherwise stringent application of Republic Act No. 9165 in order to serve an intent for the enactment of the law, that is, to rehabilitate the
offender.
Within the spirit of the disquisition in People v. Martinez, there might be plausible basis for the declaration of Sec. 23 of R.A. No. 9165,
which bars plea bargaining as unconstitutional because indeed the inclusion of the provision in the law encroaches on the exclusive
constitutional power of the Supreme Court.
While basic is the precept that lower courts are not precluded from resolving, whenever warranted, constitutional questions, the Court is
not unaware of the admonition of the Supreme Court that lower courts must observe a becoming modesty in examining constitutional
questions. Upon which admonition, it is thus not for this lower court to declare Sec. 23 of R.A. No. 9165 unconstitutional given the potential
ramifications that such declaration might have on the prosecution of illegal drug cases pending before this judicial station.8
Estipona filed a motion for reconsideration, but it was denied in an Order9 dated July 26, 2016; hence, this petition raising the issues as
follows:
I.
WHETHER SECTION 23 OF REPUBLIC ACT NO. 9165, WHICH PROHIBITS PLEA BARGAINING IN ALL VIOLATIONS OF THE SAID LAW, IS
UNCONSTITUTIONAL FOR BEING VIOLATIVE OF THE CONSTITUTIONAL RIGHT TO EQUAL PROTECTION OF THE LAW.
II.
WHETHER SECTION 23 OF REPUBLIC ACT NO. 9165 IS UNCONSTITUTIONAL AS IT ENCROACHED UPON THE POWER OF THE SUPREME COURT
TO PROMULGATE RULES OF PROCEDURE.
III.
WHETHER THE REGIONAL TRIAL COURT, AS PRESIDED BY HON. FRANK E. LOBRIGO, COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING
TO LACK OR EXCESS OF JURISDICTION WHEN IT REFUSED TO DECLARE SECTION 23 OF REPUBLIC ACT NO. 9165 AS UNCONSTITUTIONAL.10
We grant the petition.
PROCEDURAL MATTERS
The People of the Philippines, through the Office of the Solicitor General (OSG), contends that the petition should be dismissed outright for
being procedurally defective on the grounds that: (1) the Congress should have been impleaded as an indispensable party; (2) the
constitutionality of Section 23 of R.A. No. 9165 cannot be attacked collaterally; and (3) the proper recourse should have been a petition for
declaratory relief before this Court or a petition for certiorari before the RTC. Moreover, the OSG argues that the petition fails to satisfy the
requisites of judicial review because: (1) Estipona lacks legal standing to sue for failure to show direct injury; (2) there is no actual case or
controversy; and (3) the constitutionality of Section 23 of R.A. No. 9165 is not the lis mota of the case.
1|SPL: February 8, 2019 CASES
On matters of technicality, some points raised by the OSG maybe correct.1âwphi1 Nonetheless, without much further ado, it must be
underscored that it is within this Court's power to make exceptions to the rules of court. Under proper conditions, We may permit the full
and exhaustive ventilation of the parties' arguments and positions despite the supposed technical infirmities of a petition or its alleged
procedural flaws. In discharging its solemn duty as the final arbiter of constitutional issues, the Court shall not shirk from its obligation to
determine novel issues, or issues of first impression, with far-reaching implications.11
Likewise, matters of procedure and technicalities normally take a backseat when issues of substantial and transcendental importance are
present.12 We have acknowledged that the Philippines' problem on illegal drugs has reached "epidemic," "monstrous," and "harrowing"
proportions,13 and that its disastrously harmful social, economic, and spiritual effects have broken the lives, shattered the hopes, and
destroyed the future of thousands especially our young citizens.14 At the same time, We have equally noted that "as urgent as the campaign
against the drug problem must be, so must we as urgently, if not more so, be vigilant in the protection of the rights of the accused as
mandated by the Constitution x x x who, because of excessive zeal on the part of the law enforcers, may be unjustly accused and
convicted."15 Fully aware of the gravity of the drug menace that has beset our country and its direct link to certain crimes, the Court, within
its sphere, must do its part to assist in the all-out effort to lessen, if not totally eradicate, the continued presence of drug lords, pushers and
users.16
Bearing in mind the very important and pivotal issues raised in this petition, technical matters should not deter Us from having to make the
final and definitive pronouncement that everyone else depends for enlightenment and guidance.17 When public interest requires, the Court
may brush aside procedural rules in order to resolve a constitutional issue.18
x x x [T]he Court is invested with the power to suspend the application of the rules of procedure as a necessary complement of its power to
promulgate the same. Barnes v. Hon. Quijano Padilla discussed the rationale for this tenet, viz. :
Let it be emphasized that the rules of procedure should be viewed as mere tools designed to facilitate the attainment of justice. Their strict
and rigid application, which would result in technicalities that tend to frustrate rather than promote substantial justice, must always be
eschewed. Even the Rules of Court reflect this principle. The power to suspend or even disregard rules can be so pervasive and compelling
as to alter even that which this Court itself has already declared to be final, x x x.
The emerging trend in the rulings of this Court is to afford every party litigant the amplest opportunity for the proper and just determination
of his cause, free from the constraints of technicalities. Time and again, this Court has consistently held that rules must not be applied rigidly
so as not to override substantial justice. 19
SUBSTANTIVE ISSUES
Rule-making power of the Supreme
Court under the 1987 Constitution
Section 5(5), A1iicle VIII of the 1987 Constitution explicitly provides:
Sec. 5. The Supreme Court shall have the following powers:
xxxx
(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the
admission to the practice of law, the Integrated Bar, and legal assistance to the underprivileged. Such rules shall provide a simplified and
inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase,
or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the
Supreme Court.
The power to promulgate rules of pleading, practice and procedure is now Our exclusive domain and no longer shared with the Executive
and Legislative departments.20 In Echegaray v. Secretary of Justice, 21 then Associate Justice (later Chief Justice) Reynato S. Puno traced
the history of the Court's rule-making power and highlighted its evolution and development.
x x x It should be stressed that the power to promulgate rules of pleading, practice and procedure was granted by our Constitutions to this
Court to enhance its independence, for in the words of Justice Isagani Cruz "without independence and integrity, courts will lose that popular
trust so essential to the maintenance of their vigor as champions of justice." Hence, our Constitutions continuously vested this power to
this Court for it enhances its independence. Under the 1935 Constitution, the power of this Court to promulgate rules concerning pleading,
practice and procedure was granted but it appeared to be co-existent with legislative power for it was subject to the power of Congress to
repeal, alter or supplement. Thus, its Section 13, Article VIII provides:
"Sec. 13. The Supreme Court shall have the power to promulgate rules concerning pleading, practice and procedure in all courts, and the
admission to the practice of law. Said rules shall be uniform for all courts of the same grade and shall not diminish, increase, or modify
substantive rights. The existing laws on pleading, practice and procedure are hereby repealed as statutes, and are declared Rules of Court,
subject to the power of the Supreme Court to alter and modify the same. The Congress shall have the power to repeal, alter or supplement
the rules concerning pleading, practice and procedure, and the admission to the practice of law in the Philippines."
The said power of Congress, however, is not as absolute as it may appear on its surface. In In re: Cunanan Congress in the exercise of its
power to amend rules of the Supreme Court regarding admission to the practice of law, enacted the Bar Flunkers Act of 1953 which
considered as a passing grade, the average of 70% in the bar examinations after July 4, 1946 up to August 1951 and 71 % in the 1952 bar
examinations. This Court struck down the law as unconstitutional. In his ponencia, Mr. Justice Diokno held that "x x x the disputed law is
not a legislation; it is a judgment - a judgment promulgated by this Court during the aforecited years affecting the bar candidates concerned;
and although this Court certainly can revoke these judgments even now, for justifiable reasons, it is no less certain that only this Court, and
not the legislative nor executive department, that may do so. Any attempt on the part of these departments would be a clear usurpation of
its function, as is the case with the law in question." The venerable jurist further ruled: "It is obvious, therefore, that the ultimate power to
grant license for the practice of law belongs exclusively to this Court, and the law passed by Congress on the matter is of permissive
character, or as other authorities say, merely to fix the minimum conditions for the license." By its ruling, this Court qualified the absolutist
tone of the power of Congress to "repeal, alter or supplement the rules concerning pleading, practice and procedure, and the admission to
the practice of law in the Philippines.
The ruling of this Court in In re Cunanan was not changed by the 1973 Constitution. For the 1973 Constitution reiterated the power of this
Court "to promulgate rules concerning pleading, practice and procedure in all courts, x x x which, however, may be repealed, altered or
supplemented by the Batasang Pambansa x x x." More completely, Section 5(2)5 of its Article X provided:
xxxx
"Sec. 5. The Supreme Court shall have the following powers.
xxxx
(5) Promulgate rules concerning pleading, practice, and procedure in all courts, the admission to the practice of law, and the integration of
the Bar, which, however, may be repealed, altered, or supplemented by the Batasang Pambansa. Such rules shall provide a simplified and
inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase,
or modify substantive rights."
Well worth noting is that the 1973 Constitution further strengthened the independence of the judiciary by giving to it the additional power
to promulgate rules governing the integration of the Bar.
The 1987 Constitution molded an even stronger and more independent judiciary. Among others, it enhanced the rule making power of this
Court. Its Section 5(5), Article VIII provides:
xxxx
"Section 5. The Supreme Court shall have the following powers:
2|SPL: February 8, 2019 CASES
xxx
(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice and procedure in all courts, the
admission to the practice of law, the Integrated Bar, and legal assistance to the underprivileged. Such rules shall provide a simplified and
inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase,
or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the
Supreme Court. "
The rule making power of this Court was expanded. This Court for the first time was given the power to promulgate rules concerning the
protection and enforcement of constitutional rights. The Court was also granted for the .first time the power to disapprove rules of
procedure of special courts and quasi-judicial bodies. But most importantly, the 1987 Constitution took away the power of Congress to
repeal, alter, or supplement rules concerning pleading, practice and procedure. In fine, the power to promulgate rules of pleading, practice
and procedure is no longer shared by this Court with Congress, more so with the Executive. x x x.22
Just recently, Carpio-Morales v. Court of Appeals (Sixth Division)23 further elucidated:
While the power to define, prescribe, and apportion the jurisdiction of the various courts is, by constitutional design, vested unto Congress,
the power to promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all
courts belongs exclusively to this Court. Section 5 (5), Article VIII of the 1987 Constitution reads:
xxxx
In Echegaray v. Secretary of Justice (Echegaray), the Court traced the evolution of its rule-making authority, which, under the 1935 and 1973
Constitutions, had been priorly subjected to a power-sharing scheme with Congress. As it now stands, the 1987 Constitution textually altered
the old provisions by deleting the concurrent power of Congress to amend the rules, thus solidifying in one body the Court's rule-making
powers, in line with the Framers' vision of institutionalizing a " [ s] tronger and more independent judiciary."
The records of the deliberations of the Constitutional Commission would show that the Framers debated on whether or not the Court's
rulemaking powers should be shared with Congress. There was an initial suggestion to insert the sentence "The National Assembly may
repeal, alter, or supplement the said rules with the advice and concurrence of the Supreme Court," right after the phrase "Promulgate rules
concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the
practice of law, the integrated bar, and legal assistance to the underprivileged[,]" in the enumeration of powers of the Supreme Court.
Later, Commissioner Felicitas S. Aquino proposed to delete the former sentence and, instead, after the word "[under]privileged," place a
comma(,) to be followed by "the phrase with the concurrence of the National Assembly." Eventually, a compromise formulation was reached
wherein (a) the Committee members agreed to Commissioner Aquino's proposal to delete the phrase "the National Assembly may repeal,
alter, or supplement the said rules with the advice and concurrence of the Supreme Court" and (b) in turn, Commissioner Aquino agreed to
withdraw his proposal to add "the phrase with the concurrence of the National Assembly." The changes were approved, thereby leading to
the present lack of textual reference to any form of Congressional participation in Section 5 (5), Article VIII, supra. Theprevailing
consideration was that "both bodies, the Supreme Court and the Legislature, have their inherent powers."
Thus, as it now stands, Congress has no authority to repeal, alter, or supplement rules concerning pleading, practice, and procedure.x x x.24
The separation of powers among the three co-equal branches of our government has erected an impregnable wall that keeps the power to
promulgate rules of pleading, practice and procedure within the sole province of this Court.25 The other branches trespass upon this
prerogative if they enact laws or issue orders that effectively repeal, alter or modify any of the procedural rules promulgated by the Court.26
Viewed from this perspective, We have rejected previous attempts on the part of the Congress, in the exercise of its legislative power, to
amend the Rules of Court (Rules), to wit:
1. Fabian v. Desierto27 -Appeal from the decision of the Office of the Ombudsman in an administrative disciplinary case should be taken to
the Court of Appeals under the provisions of Rule 43 of the Rules instead of appeal by certiorari under Rule 45 as provided in Section 27 of
R.A. No. 6770.
2. Cathay Metal Corporation v. Laguna West Multi-Purpose Cooperative, Inc. 28 - The Cooperative Code provisions on notices cannot replace
the rules on summons under Rule 14 of the Rules.
3. RE: Petition for Recognition of the Exemption of the GSIS from Payment of Legal Fees; 29 Baguio Market Vendors Multi-Purpose
Cooperative (BAMARVEMPCO) v. Hon. Judge Cabato-Cortes;30 In Re: Exemption of the National Power Corporation from Payment of
Filing/Docket Fees; 31 and Rep. of the Phils. v. Hon. Mangotara, et al. 32 - Despite statutory provisions, the GSIS, BAMARVEMPCO, and NPC
are not exempt from the payment of legal fees imposed by Rule 141 of the Rules.
4. Carpio-Morales v. Court of Appeals (Sixth Division)33 - The first paragraph of Section 14 of R.A. No. 6770, which prohibits courts except
the Supreme Court from issuing temporary restraining order and/or writ of preliminary injunction to enjoin an investigation conducted by
the Ombudsman, is unconstitutional as it contravenes Rule 58 of the Rules.
Considering that the aforesaid laws effectively modified the Rules, this Court asserted its discretion to amend, repeal or even establish new
rules of procedure, to the exclusion of the legislative and executive branches of government. To reiterate, the Court's authority to
promulgate rules on pleading, practice, and procedure is exclusive and one of the safeguards of Our institutional independence.34
Plea bargaining in criminal cases
Plea bargaining, as a rule and a practice, has been existing in our jurisdiction since July 1, 1940, when the 1940 Rules took effect. Section 4,
Rule 114 (Pleas) of which stated:
SEC. 4. Plea of guilty of lesser offense. - The defendant, with the consent of the court and of the fiscal, may plead guilty of any lesser offense
than that charged which is necessarily included in the offense charged in the complaint or information.
When the 1964 Rules became effective on January 1, 1964, the same provision was retained under Rule 118 (Pleas).1âwphi1 Subsequently,
with the effectivity of the 1985 Rules on January 1, 1985, the provision on plea of guilty to a lesser offense was amended. Section 2, Rule
116 provided:
SEC. 2. Plea of guilty to a lesser offense. - The accused with the consent of the offended party and the fiscal, may be allowed by the trial
court to plead guilty to a lesser offense, regardless of whether or not it is necessarily included in the crime charged, or is cognizable by a
court of lesser jurisdiction than the trial court. No amendment of the complaint or information is necessary. (4a, R-118)
As well, the term "plea bargaining" was first mentioned and expressly required during pre-trial. Section 2, Rule 118 mandated:
SEC. 2. Pre-trial conference; subjects. - The pre-trial conference shall consider the following:
(a) Plea bargaining;
(b) Stipulation of facts;
(c) Marking for identification of evidence of the parties;
(d) Waiver of objections to admissibility of evidence; and
(e) Such other matters as will promote a fair and expeditious trial. (n)
The 1985 Rules was later amended. While the wordings of Section 2, Rule 118 was retained, Section 2, Rule 116 was modified in 1987. A
second paragraph was added, stating that "[a] conviction under this plea shall be equivalent to a conviction of the offense charged for
purposes of double jeopardy."
When R.A. No. 8493 ("Speedy Trial Act of 1998 ') was enacted,35 Section 2, Rule 118 of the Rules was substantially adopted. Section 2 of
the law required that plea bargaining and other matters36 that will promote a fair and expeditious trial are to be considered during pre-
3|SPL: February 8, 2019 CASES
trial conference in all criminal cases cognizable by the Municipal Trial Court, Municipal Circuit Trial Court, Metropolitan Trial Court, Regional
Trial Court, and the Sandiganbayan.
Currently, the pertinent rules on plea bargaining under the 2000 Rules37 are quoted below:
RULE 116 (Arraignment and Plea):
SEC. 2. Plea of guilty to a lesser offense. - At arraignment, the accused, with the consent of the offended party and the prosecutor, may be
allowed by the trial court to plead guilty to a lesser offense which is necessarily included in the offense charged. After arraignment but
before trial, the accused may still be allowed to plead guilty to said lesser offense after withdrawing his plea of not guilty. No amendment
of the complaint or information is necessary. (Sec. 4, Cir. 38-98)
RULE 118 (Pre-trial):
SEC. 1. Pre-trial; mandatory in criminal cases. - In all criminal cases cognizable by the Sandiganbayan, Regional Trial Court, Metropolitan
Trial Court, Municipal Trial Court in Cities, Municipal Trial Court and Municipal Circuit Trial Court, the court shall, after arraignment and
within thirty (30) days from the date the court acquires jurisdiction over the person of the accused, unless a shorter period is provided for
in special laws or circulars of the Supreme Court, order a pre-trial conference to consider the following:
(a) plea bargaining;
(b) stipulation of facts;
(c) marking for identification of evidence of the parties;
(d) waiver of objections to admissibility of evidence;
(e) modification of the order of trial if the accused admits the charge but interposes a lawful defense; and
(f) such matters as will promote a fair and expeditious trial of the criminal and civil aspects of the case. (Sec. 2 & 3, Cir. 38-98)
Plea bargaining is a rule of procedure
The Supreme Court's sole prerogative to issue, amend, or repeal procedural rules is limited to the preservation of substantive rights, i.e.,
the former should not diminish, increase or modify the latter.38 "Substantive law is that part of the law which creates, defines and regulates
rights, or which regulates the right and duties which give rise to a cause of action; that part of the law which courts are established to
administer; as opposed to adjective or remedial law, which prescribes the method of enforcing rights or obtain redress for their
invasions."39 Fabian v. Hon. Desierto40 laid down the test for determining whether a rule is substantive or procedural in nature.
It will be noted that no definitive line can be drawn between those rules or statutes which are procedural, hence within the scope of this
Court's rule-making power, and those which are substantive. In fact, a particular rule may be procedural in one context and substantive in
another. It is admitted that what is procedural and what is substantive is frequently a question of great difficulty. It is not, however, an
insurmountable problem if a rational and pragmatic approach is taken within the context of our own procedural and jurisdictional system.
In determining whether a rule prescribed by the Supreme Court, for the practice and procedure of the lower courts, abridges, enlarges, or
modifies any substantive right, the test is whether the rule really regulates procedure, that is, the judicial process for enforcing rights and
duties recognized by substantive law and for justly administering remedy and redress for a disregard or infraction of them. If the rule takes
away a vested right, it is not procedural. If the rule creates a right such as the right to appeal, it may be classified as a substantive matter;
but if it operates as a means of implementing an existing right then the rule deals merely with procedure.41
In several occasions, We dismissed the argument that a procedural rule violates substantive rights. For example, in People v. Lacson, 42
Section 8, Rule 117 of the Rules on provisional dismissal was held as a special procedural limitation qualifying the right of the State to
prosecute, making the time-bar an essence of the given right or as an inherent part thereof, so that its expiration operates to extinguish the
right of the State to prosecute the accused.43 Speaking through then Associate Justice Romeo J. Callejo, Sr., the Court opined:
In the new rule in question, as now construed by the Court, it has fixed a time-bar of one year or two years for the revival of criminal cases
provisionally dismissed with the express consent of the accused and with a priori notice to the offended party. The time-bar may appear,
on first impression, unreasonable compared to the periods under Article 90 of the Revised Penal Code. However, in fixing the time-bar, the
Court balanced the societal interests and those of the accused for the orderly and speedy disposition of criminal cases with minimum
prejudice to the State and the accused. It took into account the substantial rights of both the State and of the accused to due process. The
Court believed that the time limit is a reasonable period for the State to revive provisionally dismissed cases with the consent of the accused
and notice to the offended parties. The time-bar fixed by the Court must be respected unless it is shown that the period is manifestly short
or insufficient that the rule becomes a denial of justice. The petitioners failed to show a manifest shortness or insufficiency of the time-bar.
The new rule was conceptualized by the Committee on the Revision of the Rules and approved by the Court en banc primarily to enhance
the administration of the criminal justice system and the rights to due process of the State and the accused by eliminating the deleterious
practice of trial courts of provisionally dismissing criminal cases on motion of either the prosecution or the accused or jointly, either with
no time-bar for the revival thereof or with a specific or definite period for such revival by the public prosecutor. There were times when
such criminal cases were no longer revived or refiled due to causes beyond the control of the public prosecutor or because of the indolence,
apathy or the lackadaisical attitude of public prosecutors to the prejudice of the State and the accused despite the mandate to public
prosecutors and trial judges to expedite criminal proceedings.
It is almost a universal experience that the accused welcomes delay as it usually operates in his favor, especially if he greatly fears the
consequences of his trial and conviction. He is hesitant to disturb the hushed inaction by which dominant cases have been known to expire.
The inordinate delay in the revival or refiling of criminal cases may impair or reduce the capacity of the State to prove its case with the
disappearance or nonavailability of its witnesses. Physical evidence may have been lost. Memories of witnesses may have grown dim or
have faded. Passage of time makes proof of any fact more difficult. The accused may become a fugitive from justice or commit another
crime. The longer the lapse of time from the dismissal of the case to the revival thereof, the more difficult it is to prove the crime.
On the other side of the fulcrum, a mere provisional dismissal of a criminal case does not terminate a criminal case. The possibility that the
case may be revived at any time may disrupt or reduce, if not derail, the chances of the accused for employment, curtail his association,
subject him to public obloquy and create anxiety in him and his family. He is unable to lead a normal life because of community suspicion
and his own anxiety. He continues to suffer those penalties and disabilities incompatible with the presumption of innocence. He may also
lose his witnesses or their memories may fade with the passage of time. In the long run, it may diminish his capacity to defend himself and
thus eschew the fairness of the entire criminal justice system.
The time-bar under the new rule was fixed by the Court to excise the malaise that plagued the administration of the criminal justice system
for the benefit of the State and the accused; not for the accused only.44
Also, We said in Jaylo, et al. v. Sandiganbayan, et al. 45 that Section 6, Rule 120 of the Rules, which provides that an accused who failed to
appear at the promulgation of the judgment of conviction shall lose the remedies available against the judgment, does not take away
substantive rights but merely provides the manner through which an existing right may be implemented.
Section 6, Rule 120, of the Rules of Court, does not take away per se the right of the convicted accused to avail of the remedies under the
Rules. It is the failure of the accused to appear without justifiable cause on the scheduled date of promulgation of the judgment of conviction
that forfeits their right to avail themselves of the remedies against the judgment.
It is not correct to say that Section 6, Rule 120, of the Rules of Court diminishes or modifies the substantive rights of petitioners. It only
works in pursuance of the power of the Supreme Court to "provide a simplified and inexpensive procedure for the speedy disposition of
cases." This provision protects the courts from delay in the speedy disposition of criminal cases - delay arising from the simple expediency
of nonappearance of the accused on the scheduled promulgation of the judgment of conviction.46
4|SPL: February 8, 2019 CASES
By the same token, it is towards the provision of a simplified and inexpensive procedure for the speedy disposition of cases in all courts47
that the rules on plea bargaining was introduced. As a way of disposing criminal charges by agreement of the parties, plea bargaining is
considered to be an "important," "essential," "highly desirable," and "legitimate" component of the administration of justice.48 Some of its
salutary effects include:
x x x For a defendant who sees slight possibility of acquittal, the advantages of pleading guilty and limiting the probable penalty are obvious
- his exposure is reduced, the correctional processes can begin immediately, and the practical burdens of a trial are eliminated. For the State
there are also advantages - the more promptly imposed punishment after an admission of guilt may more effectively attain the objectives
of punishment; and with the avoidance of trial, scarce judicial and prosecutorial resources are conserved for those cases in which there is a
substantial issue of the defendant's guilt or in which there is substantial doubt that the State can sustain its burden of proof. (Brady v. United
States, 397 U.S. 742, 752 [1970])
Disposition of charges after plea discussions x x x leads to prompt and largely final disposition of most criminal cases; it avoids much of the
corrosive impact of enforced idleness during pretrial confinement for those who are denied release pending trial; it protects the public from
those accused persons who are prone to continue criminal conduct even while on pretrial release; and, by shortening the time between
charge and disposition, it enhances whatever may be the rehabilitative prospects of the guilty when they are ultimately imprisoned.
(Santobello v. New York, 404 U.S. 257, 261 [1971])
The defendant avoids extended pretrial incarceration and the anxieties and uncertainties of a trial; he gains a speedy disposition of his case,
the chance to acknowledge his guilt, and a prompt start in realizing whatever potential there may be for rehabilitation. Judges and
prosecutors conserve vital and scarce resources. The public is protected from the risks posed by those charged with criminal offenses who
are at large on bail while awaiting completion of criminal proceedings. (Blackledge v. Allison, 431 U.S. 63, 71 [1977])
In this jurisdiction, plea bargaining has been defined as "a process whereby the accused and the prosecution work out a mutually satisfactory
disposition of the case subject to court approval."49 There is give-and-take negotiation common in plea bargaining.50 The essence of the
agreement is that both the prosecution and the defense make concessions to avoid potential losses.51 Properly administered, plea
bargaining is to be encouraged because the chief virtues of the system - speed, economy, and finality - can benefit the accused, the offended
party, the prosecution, and the court.52
Considering the presence of mutuality of advantage,53 the rules on plea bargaining neither create a right nor take away a vested right.
Instead, it operates as a means to implement an existing right by regulating the judicial process for enforcing rights and duties recognized
by substantive law and for justly administering remedy and redress for a disregard or infraction of them.
The decision to plead guilty is often heavily influenced by the defendant's appraisal of the prosecution's case against him and by the
apparent likelihood of securing leniency should a guilty plea be offered and accepted.54 In any case, whether it be to the offense charged
or to a lesser crime, a guilty plea is a "serious and sobering occasion" inasmuch as it constitutes a waiver of the fundamental rights to be
presumed innocent until the contrary is proved, to be heard by himself and counsel, to meet the witnesses face to face, to bail (except those
charged with offenses punishable by reclusion perpetua when evidence of guilt is strong), to be convicted by proof beyond reasonable
doubt, and not to be compelled to be a witness against himself.55
Yet a defendant has no constitutional right to plea bargain. No basic rights are infringed by trying him rather than accepting a plea of guilty;
the prosecutor need not do so if he prefers to go to trial.56 Under the present Rules, the acceptance of an offer to plead guilty is not a
demandable right but depends on the consent of the offended party57 and the prosecutor, which is a condition precedent to a valid plea
of guilty to a lesser offense that is necessarily included in the offense charged.58 The reason for this is that the prosecutor has full control
of the prosecution of criminal actions; his duty is to always prosecute the proper offense, not any lesser or graver one, based on what the
evidence on hand can sustain.59
[Courts] normally must defer to prosecutorial decisions as to whom to prosecute. The reasons for judicial deference are well known.
Prosecutorial charging decisions are rarely simple. In addition to assessing the strength and importance of a case, prosecutors also must
consider other tangible and intangible factors, such as government enforcement priorities. Finally, they also must decide how best to
allocate the scarce resources of a criminal justice system that simply cannot accommodate the litigation of every serious criminal charge.
Because these decisions "are not readily susceptible to the kind of analysis the courts are competent to undertake," we have been "properly
hesitant to examine the decision whether to prosecute. "60
The plea is further addressed to the sound discretion of the trial court, which may allow the accused to plead guilty to a lesser offense which
is necessarily included in the offense charged. The word may denotes an exercise of discretion upon the trial court on whether to allow the
accused to make such plea.61 Trial courts are exhorted to keep in mind that a plea of guilty for a lighter offense than that actually charged
is not supposed to be allowed as a matter of bargaining or compromise for the convenience of the accused.62
Plea bargaining is allowed during the arraignment, the pre-trial, or even up to the point when the prosecution already rested its case.63 As
regards plea bargaining during the pre-trial stage, the trial court's exercise of discretion should not amount to a grave abuse thereof.64
"Grave abuse of discretion" is a capricious and whimsical exercise of judgment so patent and gross as to amount to an evasion of a positive
duty or a virtual refusal to perform a duty enjoined by law, as where the power is exercised in an arbitrary and despotic manner because of
passion or hostility; it arises when a court or tribunal violates the Constitution, the law or existing jurisprudence.65
If the accused moved to plead guilty to a lesser offense subsequent to a bail hearing or after the prosecution rested its case, the rules allow
such a plea only when the prosecution does not have sufficient evidence to establish the guilt of the crime charged.66 The only basis on
which the prosecutor and the court could rightfully act in allowing change in the former plea of not guilty could be nothing more and nothing
less than the evidence on record. As soon as the prosecutor has submitted a comment whether for or against said motion, it behooves the
trial court to assiduously study the prosecution's evidence as well as all the circumstances upon which the accused made his change of plea
to the end that the interests of justice and of the public will be served.67 The ruling on the motion must disclose the strength or weakness
of the prosecution's evidence.68 Absent any finding on the weight of the evidence on hand, the judge's acceptance of the defendant's
change of plea is improper and irregular.69
On whether Section 23 of R.A. No.
9165 violates the equal protection
clause
At this point, We shall not resolve the issue of whether Section 23 of R.A. No. 9165 is contrary to the constitutional right to equal protection
of the law in order not to preempt any future discussion by the Court on the policy considerations behind Section 23 of R.A. No. 9165.
Pending deliberation on whether or not to adopt the statutory provision in toto or a qualified version thereof, We deem it proper to declare
as invalid the prohibition against plea bargaining on drug cases until and unless it is made part of the rules of procedure through an
administrative circular duly issued for the purpose.
WHEREFORE, the petition for certiorari and prohibition is GRANTED. Section 23 of Republic Act No. 9165 is declared unconstitutional for
being contrary to the rule-making authority of the Supreme Court under Section 5(5), Article VIII of the 1987 Constitution.
SO ORDERED.
DIOSDADO M. PERALTA
Associate Justice
WE CONCUR:
MARIA LOURDES P.A. SERENO
Chief Justice
ANTONIO T. CARPIO
Associate Justice PRESBITERO J. VELASCO, JR.
Associate Justice
TERESITA J. LEONARDO-DE CASTRO
Associate Justice LUCAS P. BERSAMIN
Associate Justice
5|SPL: February 8, 2019 CASES
MARIANO C. DEL CASTILLO On even date, Lim, together with his stepson, Eldie Gorres y Nave (Gorres), was also indicted for illegal sale of shabu, committed as follows:
Associate Justice ESTELA M. PERLAS-BERNABE That on or about October 19, 2010, at more or less 10:00 o'clock in the evening, at Cagayan de Oro City, Philippines, and within the
Associate Justice jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating together and mutually helping one another,
See separate concurring opinion without being authorized by law to sell, trade, administer, dispense, deliver, give away to another, distribute, dispatch in transit or transport
MARVIC M.V.F. LEONEN any dangerous drugs, did then and there willfully, unlawfully, criminally and knowingly sell and/or offer for sale, and give away to a PDEA
Associate Justice FRANCIS H. JARDELEZA Agent acting as poseur-buyer One (1) heat-sealed transparent plastic sachet containing Methamphetamine hydrochloride, locally known as
Associate Justice Shabu, a dangerous drug, with a total weight of 0.02 gram, accused knowing the same to be a dangerous drug, in consideration of Five
On wellness leave Hundred Pesos (Php500.00) consisting of one piece five hundred peso bill, with Serial No. FZ386932, which was previously marked and
ALFREDO BENJAMIN S. CAGUIOA recorded for the purpose of the buy-bust operation.
Associate Justice SAMUEL R. MARTIRES
Associate Justice Contrary to Section 5, Paragraph 1, Article II of Republic Act No. 9165.4
NOEL GIMENEZ TIJAM In their arraignment, Lim and Gorres pleaded not guilty.5 They were detained in the city jail during the joint trial of the cases.6
Associate Justice ANDRES B. REYES, JR.
Associate Justice The prosecution presented Intelligence Officer (IO) 1 Albert Orellan, IO1 Nestle Carin, IO2 Vincent Orcales, and Police Senior Inspector (PSI)
ALEXANDER G. GESMUNDO Charity Caceres. Aside from both accused, Rubenia Gorres testified for the defense.
Associate Justice
Version of the Prosecution
CERTIFICATION
Around 8:00 p.m. on October 19, 2010, IO1 Orellan and his teammates were at Regional Office X of the Philippine Drug Enforcement Agency
Pursuant to the Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had been reached in (PDEA). Based on a report of a confidential informant (CI) that a certain "Romy" has been engaged in the sale of prohibited drugs in Zone 7,
consultation before the case was assigned to the writer of the opinion of the Court’s Division. Cabina, Bonbon, Cagayan de Oro City, they were directed by their Regional Director, Lt. Col. Edwin Layese, to gather for a buy-bust operation.
During the briefing, IO2 Orcales, IO1 Orellan, and IOl Carin were assigned as the team leader, the arresting officer/back-up/evidence
MARIA LOURDES P.A. SERENO custodian, and the poseur-buyer, respectively. The team prepared a P500.00 bill as buy-bust money (with its serial number entered in the
Chief Justice PDEA blotter), the Coordination Form for the nearest police station, and other related documents.

Using their service vehicle, the team left the regional office about 15 minutes before 10:00 p.m. and arrived in the target area at 10:00 p.m.,
more or less. IO1 Carin and the CI alighted from the vehicle near the comer leading to the house of "Romy," while IO1 Orellan and the other
team members disembarked a few meters after and positioned themselves in the area to observe. IO1 Carin and the CI turned at the comer
G.R. No. 231989, September 04, 2018 and stopped in front of a house. The CI knocked at the door and uttered, "ayo, nang Romy. " Gorres came out and invited them to enter.
Inside, Lim was sitting on the sofa while watching the television. When the CI introduced IO1 Carin as a shabu buyer, Lim nodded and told
Gorres to get one inside the bedroom. Gorres stood up and did as instructed. After he came out, he handed a small medicine box to Lim,
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. ROMY LIM Y MIRANDA, Accused-Appellant.
who then took one piece of heat-sealed transparent plastic of shabu and gave it to IO1 Carin. In turn, IO1 Carin paid him with the buy-bust
money.
DECISION

PERALTA, J.:
On appeal is the February 23, 2017 Decision1 of the Court of Appeals (CA) in CA-G.R. CR HC No. 01280-MIN, which affirmed the September
24, 2013 Decision2 of Regional Trial Court (RTC), Branch 25, Cagayan de Oro City, in Criminal Case Nos. 2010-1073 and 2010-1074, finding
accused-appellant Romy Lim y Miranda (Lim) guilty of violating Sections 11 and 5, respectively, of Article II of Republic Act (R.A.) No. 9165,
or the Comprehensive Dangerous Drugs Act of 2002.
In an Information dated October 21, 2010, Lim was charged with illegal possession of Methamphetamine Hydrochloride (shabu), committed
as follows:
After examining the plastic sachet, IO1 Carin executed a missed call to IO1 Orellan, which was the pre-arranged signal. The latter, with the
rest of the team members, immediately rushed to Lim's house. When they arrived, IO1 Carin and the CI were standing near the door. They
then entered the house because the gate was opened. IO1 Orellan declared that they were PDEA agents and informed Lim and Gorres, who
were visibly surprised, of their arrest for selling dangerous drug. They were ordered to put their hands on their heads and to squat on the
floor. IO1 Orellan recited the Miranda rights to them. Thereafter, IO1 Orellan conducted a body search on both.
When he frisked Lim, no deadly weapon was found, but something was bulging in his pocket. IOl Orellan ordered him to pull it out. Inside
the pocket were the buy-bust money and a transparent rectangular plastic box about 3x4 inches in size. They could see that it contained a
plastic sachet of a white substance. As for Gorres, no weapon or illegal drug was seized.

That on or about October 19, 2010, at more or less 10:00 o'clock in the evening, at Cagayan de Oro City, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, without being authorized by law to possess or use any dangerous drugs, did
then and there, willfully, unlawfully, criminally and knowingly have in his possession, custody and control one (1) heat-sealed transparent
plastic sachet containing Methamphetamine hydrochloride, locally known as Shabu, a dangerous drug, with a total weight of 0.02 gram,
accused well-knowing that the substance recovered from his possession is a dangerous drug.
Contrary to, and in violation of, Section 11, Article II of Republic Act No. 9165.3
IO1 Orellan took into custody the P500.00 bill, the plastic box with the plastic sachet of white substance, and a disposable lighter. IOl Carin
turned over to him the plastic sachet that she bought from Lim. While in the house, IO1 Orellan marked the two plastic sachets. Despite
exerting efforts to secure the attendance of the representative from the media and barangay officials, nobody arrived to witness the
inventory-taking.
The buy-bust team brought Lim and Gorres to the PDEA Regional Office, with IO1 Orellan in possession of the seized items. Upon arrival,
they "booked" the two accused and prepared the letters requesting for the laboratory examination on the drug evidence and for the drug
test on the arrested suspects as well as the documents for the filing of the case. Likewise, IO1 Orellan made the Inventory Receipt of the

6|SPL: February 8, 2019 CASES

confiscated items. It was not signed by Lim and Gorres. Also, there was no signature of an elected public official and the representatives of
the Department of Justice (DOJ) and the media as witnesses. Pictures of both accused and the evidence seized were taken.
The day after, IO1 Orellan and IO1 Carin delivered both accused and the drug specimens to Regional Crime Laboratory Office 10. IO1 Orellan
was in possession of the sachets of shabu from the regional office to the crime lab. PSI Caceres, who was a Forensic Chemist, and Police
Officer 2 (PO2) Bajas7 personally received the letter-requests and the two pieces of heat-sealed transparent plastic sachet containing white
crystalline substance. PSI Caceres got urine samples from Lim and Gorres and conducted screening and confirmatory tests on them. Based
on her examination, only Lim was found positive for the presence of shabu. The result was shown in Chemistry Report No. DTCRIM-196 and
197-2010. With respect to the two sachets of white crystalline substance, both were found to be positive of shabu after a chromatographic
examination was conducted by PSI Caceres. Her findings were reflected in Chemistry Report No. D-228-2010. PSI Caceres, likewise, put her
own marking on the cellophane containing the two sachets of shabu. After that, she gave them to the evidence custodian. As to the buy-
bust money, the arresting team turned it over to the fiscal's office during the inquest.
Version of the Defense
Around 10:00 p.m. on October 19, 2010, Lim and Gorres were in their house in Cabina, Bonbon, Cagayan de Oro City. Lim was sleeping in
the bedroom, while Gorres was watching the television. When the latter heard that somebody jumped over their gate, he stood up to verify.
Before he could reach the door, however, it was already forced opened by the repeated pulling and kicking of men in civilian clothing. They
entered the house, pointed their firearms at him, instructed him to keep still, boxed his chest, slapped his ears, and handcuffed him. They
inquired on where the shabu was, but he invoked his innocence. When they asked the whereabouts of "Romy," he answered that he was
sleeping inside the bedroom. So the men went there and kicked the door open. Lim was then surprised as a gun was pointed at his head.
He questioned them on what was it all about, but he was told to keep quiet. The men let him and Gorres sit on a bench. Lim was apprised
of his Miranda rights. Thereafter, the two were brought to the PDEA Regional Office and the crime laboratory. During the inquest
proceedings, Lim admitted, albeit without the assistance of a counsel, ownership of the two sachets of shabu because he was afraid that
the police would imprison him. Like Gorres, he was not involved in drugs at the time of his arrest. Unlike him, however, he was previously
arrested by the PDEA agents but was acquitted in the case. Both Lim and Gorres acknowledged that they did not have any quarrel with the
PDEA agents and that neither do they have grudges against them or vice-versa.
Rubenia, Lim's live-in partner and the mother of Gorres, was at her sister's house in Pita, Pasil, Kauswagan the night when the arrests were
made. The following day, she returned home and noticed that the door was opened and its lock was destroyed. She took pictures of the
damage and offered the same as exhibits for the defense, which the court admitted as part of her testimony.
RTC Ruling
After trial, the RTC handed a guilty verdict on Lim for illegal possession and sale of shabu and acquitted Gorres for lack of sufficient evidence
linking him as a conspirator. The fallo of the September 24, 2013 Decision states:
WHEREFORE, premises considered, this Court finds that:
1. In Criminal Case No. 2010-1073, accused ROMY LIM y MIRANDA is hereby found GUILTY of violating Section 11, Article II of R.A. 9165
and is hereby sentenced to suffer the penalty of imprisonment ranging from twelve [12] years and one [1] day to thirteen [13] years, and
to pay Fine in the amount of Three Hundred Thousand Pesos [P300,000.00] without subsidiary imprisonment in case of non-payment of
Fine;
2. In Criminal Case No. 2010-1074, accused ROMY LIM y MIRANDA is hereby found GUILTY of violating Section 5, Article II of R.A. 9165, and
is hereby sentenced to suffer the penalty of LIFE IMPRISONMENT and to pay the Fine in the amount of Five Hundred Thousand Pesos
[P500,000.00].
3. In Criminal Case No. 2010-1074, accused ELDIE GORRES y NAVE is hereby ACQUITTED of the offense charged for failure of the prosecution
to prove his guilt beyond reasonable doubt. The Warden of the BJMP having custody of ELDIE GORRES y Nave, is hereby directed to
immediately release him from detention unless he is being charged of other crimes which will justify his continued incarceration.8
With regard to the illegal possession of a sachet of shabu, the RTC held that the weight of evidence favors the positive testimony of IO1
Orellan over the feeble and uncorroborated denial of Lim. As to the sale of shabu, it ruled that the prosecution was able to establish the
identity of the buyer, the seller, the money paid to the seller, and the delivery of the shabu. The testimony of IO1 Carin was viewed as
simple, straightforward and without any hesitation or prevarication as she detailed in a credible manner the buy-bust transaction that
occurred. Between the two conflicting versions that are poles apart, the RTC found the prosecution evidence worthy of credence and no
reason to disbelieve in the absence of an iota of malice, ill-will, revenge or resentment preceding and pervading the arrest of Lim. On the
chain of custody of evidence, it was accepted with moral certainty that the PDEA operatives were able to preserve the integrity and
probative value of the seized items.
In so far as Gorres is concerned, the RTC opined that the evidence presented were not strong enough to support the claim that there was
conspiracy between him and Lim because it was insufficiently shown that he knew what the box contained. It also noted Chemistry Report
No. DTCRIM 196 & 197-2010, which indicated that Gorres was "NEGATIVE" of the presence of any illicit drug based on his urine sample.
CA Ruling
On appeal, the CA affirmed the RTC Decision. It agreed with the finding of the trial court that the prosecution adequately established all the
elements of illegal sale of a dangerous drug as the collective evidence presented during the trial showed that a valid buy-bust operation
was conducted. Likewise, all the elements of illegal possession of a dangerous drug was proven. Lim resorted to denial and could not present
any proof or justification that he was fully authorized by law to possess the same. The CA was unconvinced with his contention that the
prosecution failed to prove the identity and integrity of the seized prohibited drugs. For the appellate court, it was able to demonstrate that
the integrity and evidentiary value of the confiscated drugs were not compromised. The witnesses for the prosecution were able to testify
on every link in the chain of custody, establishing the crucial link in the chain from the time the seized items were first discovered until they
were brought for examination and offered in evidence in court. Anent Lim's defense of denial and frame-up, the CA did not appreciate the
same due to lack of clear and convincing evidence that the police officers were inspired by an improper motive. Instead. the presumption
of regularity in the performance of official duty was applied.
Before Us, both Lim and the People manifested that they would no longer file a Supplemental Brief, taking into account the thorough and
substantial discussions of the issues in their respective appeal briefs before the CA.9 Essentially, Lim maintains that the case records are
bereft of evidence showing that the buy-bust team followed the procedure mandated in Section 21(1), Article II of R.A. No. 9165.
Our Ruling
The judgment of conviction is reversed and set aside, and Lim should be acquitted based on reasonable doubt.
At the time of the commission of the crimes, the law applicable is R.A. No. 9165.10 Section 1(b) of Dangerous Drugs Board Regulation No.
1, Series of 2002, which implements the law, defines chain of custody as-
the duly recorded authorized movements and custody of seized drugs or controlled chemicals or plant sources of dangerous drugs or
laboratory equipment of each stage, from the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping to
presentation in court for destruction. Such record of movements and custody of seized item shall include the identity and signature of the
person who held temporary custody of the seized item, the date and time when such transfer of custody were made in the course of
safekeeping and use in court as evidence, and the final disposition.11
The chain of custody rule is but a variation of the principle that real evidence must be authenticated prior to its admission into evidence.12
To establish a chain of custody sufficient to make evidence admissible, the proponent needs only to prove a rational basis from which to
conclude that the evidence is what the party claims it to be.13 In other words, in a criminal case, the prosecution must offer sufficient
evidence from which the trier of fact could reasonably believe that an item still is what the government claims it to be.14 Specifically in the
prosecution of illegal drugs, the well-established federal evidentiary rule in the United States is that when the evidence is not readily
identifiable and is susceptible to alteration by tampering or contamination, courts require a more stringent foundation entailing a chain of
custody of the item with sufficient completeness to render it improbable that the original item has either been exchanged with another or
been contaminated or tampered with.15 This was adopted in Mallillin v. People,16 where this Court also discussed how, ideally, the chain
of custody of seized items should be established:
As a method of authenticating evidence, the chain of custody rule requires that the admission of an exhibit be preceded by evidence
sufficient to support a finding that the matter in question is what the proponent claims it to be. It would include testimony about every link
in the chain, from the moment the item was picked up to the time it is offered into evidence, in such a way that every person who touched
the exhibit would describe how and from whom it was received, where it was and what happened to it while in the witness' possession, the
7|SPL: February 8, 2019 CASES
condition in which it was received and the condition in which it was delivered to the next link in the chain. These witnesses would then
describe the precautions taken to ensure that there had been no change in the condition of the item and no opportunity for someone not
in the chain to have possession of the same.17
Thus, the links in the chain of custody that must be established are: (1) the seizure and marking, if practicable, of the illegal drug recovered
from the accused by the apprehending officer; (2) the turnover of the seized illegal drug by the apprehending officer to the investigating
officer; (3) the turnover of the illegal drug by the investigating officer to the forensic chemist for laboratory examination; and (4) the turnover
and submission of the illegal drug from the forensic chemist to the court.18
Seizure and marking of the illegal
drug as well as the turnover by the
apprehending officer to the
investigating officer
Section 21(1), Article II of R.A. No. 9165 states:
Sec. 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled
Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. - The PDEA shall take charge and have
custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as
instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following
manner:
(1) 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[.]19
Supplementing the above-quoted provision, Section 21(a) of the Implementing Rules and Regulations (IRR) of R.A. No. 9165 mandates:
(a) The apprehending officer/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: Provided, that the physical inventory and photograph
shall be conducted at the place where the search warrant is served; or at the nearest police station or at the nearest office of the
apprehending officer/team, whichever is practicable, in case of warrantless seizures; Provided, 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.20
On July 15, 2014, R.A. No. 10640 was approved to amend R.A. No. 9165. Among other modifications, it essentially incorporated the saving
clause contained in the IRR, thus:
(1) The apprehending team having initial custody and control of the dangerous drugs, controlled precursors and essential chemicals,
instruments/paraphernalia and/or laboratory equipment shall, immediately after seizure and confiscation, conduct a phyical inventory of
the seized items 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, with an elected public official and a representative of the National Prosecution Service or the
media who shall be required to sign the copies of the inventory and be given a copy thereof: Provided, That the physical inventory and
photograph shall be conducted at the place where the search warrant is served; or at the nearest police station or at the nearest office of
the apprehending officer/team, whichever is practicable, in case of warrantless seizures: Provided, finally, That noncompliance of 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 and custody over said items.
In her Sponsorship Speech on Senate Bill No. 2273, which eventually became R.A. No. 10640, Senator Grace Poe admitted that "while
Section 21 was enshrined in the Comprehensive Dangerous Drugs Act to safeguard the integrity of the evidence acquired and prevent
planting of evidence, the application of said section resulted in the ineffectiveness of the government's campaign to stop increasing drug
addiction and also, in the conflicting decisions of the courts."21 Specifically, she cited that "compliance with the rule on witnesses during
the physical inventory is difficult. For one, media representatives are not always available in all comers of the Philippines, especially in more
remote areas. For another, there were instances where elected barangay officials themselves were involved in the punishable acts
apprehended. "22 In addition, "[t]he requirement that inventory is required to be done in police station is also very limiting. Most police
stations appeared to be far from locations where accused persons were apprehended."23
Similarly, Senator Vicente C. Sotto III manifested that in view of the substantial number of acquittals in drug-related cases due to the varying
interpretations of the prosecutors and the judges on Section 21 of R.A. No. 9165, there is a need for "certain adjustments so that we can
plug the loopholes in our existing law" and "ensure [its] standard implementation."24 In his Co-sponsorship Speech, he noted:
Numerous drug trafficking activities can be traced to operations of highly organized and powerful local and international syndicates. The
presence of such syndicates that have the resources and the capability to mount a counter-assault to apprehending law enforcers makes
the requirement of Section 21(a) impracticable for law enforcers to comply with. It makes the place of seizure extremely unsafe for the
proper inventory and photograph of seized illegal drugs.
xxxx
Section 21(a) of RA 9165 needs to be amended to address the foregoing situation. We did not realize this in 2002 where the safety of the
law enforcers and other persons required to be present in the inventory and photography of seized illegal drugs and the preservation of the
very existence of seized illegal drugs itself are threatened by an immediate retaliatory action of drug syndicates at the place of seizure. The
place where the seized drugs may be inventoried and photographed has to include a location where the seized drugs as well as the persons
who are required to be present during the inventory and photograph are safe and secure from extreme danger.
It is proposed that the physical inventory and taking of photographs of seized illegal drugs be allowed to be conducted either in the place
of seizure or at the nearest police station or office of the apprehending law enforcers. The proposal will provide effective measures to
ensure the integrity of seized illegal drugs since a safe location makes it more probable for an inventory and photograph of seized illegal
drugs to be properly conducted, thereby reducing the incidents of dismissal of drug cases due to technicalities.
Non-observance of the prescribed procedures should not automatically mean that the seizure or confiscation is invalid or illegal, as long as
the law enforement officers could justify the same and could prove that the integrity and the evidentiary value of the seized items are not
tainted. This is the effect of the inclusion in the proposal to amend the phrase "justifiable grounds." There are instances wherein there are
no media people or representatives from the DOJ available and the absence of these witnesses should not automatically invalidate the drug
operation conducted. Even the presence of a public local elected official also is sometimes impossible especially if the elected official is
afraid or scared.25
We have held that the immediate physical inventory and photograph of the confiscated items at the place of arrest may be excused in
instances when the safety and security of the apprehending officers and the witnesses required by law or of the items seized are threatened
by immediate or extreme danger such as retaliatory action of those who have the resources and capability to mount a counter-assault.26
The present case is not one of those.
Here, IO1 Orellan took into custody the P500.00 bill, the plastic box with the plastic sachet of white substance, and a disposable lighter. IO1
Carin also turned over to him the plastic sachet that she bought from Lim. While in the house, IO1 Orellan marked the two plastic sachets.
IO1 Orellan testified that he immediately conducted the marking and physical inventory of the two sachets of shabu.27 To ensure that they
were not interchanged, he separately marked the item sold by Lim to IO1 Carin and the one that he recovered from his possession upon
body search as BB AEO 10-19-10 and AEO-RI 10-19-10, respectively, with both bearing his initial/signature.28
Evident, however, is the absence of an elected public official and representatives of the DOJ and the media to witness the physical inventory
and photograph of the seized items.29 In fact, their signatures do not appear in the Inventory Receipt.
The Court stressed in People v. Vicente Sipin y De Castro:30
The prosecution bears the burden of proving a valid cause for non-compliance with the procedure laid down in Section 21 of R.A. No. 9165,
as amended. It has the positive duty to demonstrate observance thereto in such a way that during the trial proceedings, it must initiate in
acknowledging and justifying any perceived deviations from the requirements of law. Its failure to follow the mandated procedure must be
adequately explained, and must be proven as a fact in accordance with the rules on evidence. It should take note that the rules require that
the apprehending officers do not simply mention a justifiable ground, but also clearly state this ground in their sworn affidavit, coupled with
a statement on the steps they took to preserve the integrity of the seized items. Strict adherence to Section 21 is required where the
quantity of illegal drugs seized is miniscule, since it is highly susceptible to planting, tampering or alteration of evidence.31
It must be alleged and proved that the presence of the three witnesses to the physical inventory and photograph of the illegal drug seized
was not obtained due to reason/s such as:
8|SPL: February 8, 2019 CASES
(1) their attendance was impossible because the place of arrest was a remote area; (2) their safety during the inventory and photograph of
the seized drugs was threatened by an immediate retaliatory action of the accused or any person/s acting for and in his/her behalf; (3) the
elected official themselves were involved in the punishable acts sought to be apprehended; (4) earnest efforts to secure the presence of a
DOJ or media representative and an elected public official within the period required under Article 125 of the Revised Penal Code prove
futile through no fault of the arresting officers, who face the threat of being charged with arbitrary detention; or (5) time constraints and
urgency of the anti-drug operations, which often rely on tips of confidential assets, prevented the law enforcers from obtaining the presence
of the required witnesses even before the offenders could escape.32
Earnest effort to secure the attendance of the necessary witnesses must be proven. People v. Ramos33 requires:
It is well to note that the absence of these required witnesses does not per se render the confiscated items inadmissible. However, a
justifiable reason for such failure or a showing of any genuine and sufficient effort to secure the required witnesses under Section 21 of RA
9165 must be adduced. In People v. Umipang, the Court held that the prosecution must show that earnest efforts were employed in
contacting the representatives enumerated under the law for "a sheer statement that representatives were unavailable without so much
as an explanation on whether serious attempts were employed to look for other representatives, given the circumstances is to be regarded
as a flimsy excuse." Verily, mere statements of unavailability, absent actual serious attempts to contact the required witnesses are
unacceptable as justified grounds for non- compliance. These considerations arise from the fact that police officers are ordinarily given
sufficient time - beginning from the moment they have received the information about the activities of the accused until the time of his
arrest - to prepare for a buy-bust operation and consequently, make the necessary arrangements beforehand knowing full well that they
would have to strictly comply with the set procedure prescribed in Section 21 of RA 9165. As such, police officers are compelled not only to
state reasons for their non-compliance, but must in fact, also convince the Court that they exerted earnest efforts to comply with the
mandated procedure, and that under the given circumstances, their actions were reasonable.34
In this case, IO1 Orellan testified that no members of the media and barangay officials arrived at the crime scene because it was late at night
and it was raining, making it unsafe for them to wait at Lim's house.35 IO2 Orcales similarly declared that the inventory was made in the
PDEA office considering that it was late in the evening and there were no available media representative and barangay officials despite their
effort to contact them.36 He admitted that there are times when they do not inform the barangay officials prior to their operation as they.
might leak the confidential information.37 We are of the view that these justifications are unacceptable as there was no genuine and
sufficient attempt to comply with the law.
The testimony of team-leader IO2 Orcales negates any effort on the part of the buy-bust team to secure the presence of a barangay official
during the operation:
ATTY. DEMECILLO:
xxxx
Q REVERSED and SET ASIDE. Accordingly, accused-appellant Romy Lim y Miranda is ACQUITTED on reasonable doubt, and is ORDERED
x x x Before going to the house of the accused, why did you not contact a barangay official to witness the operation?
A immediately.
There are reasons why we do not inform a barangay official before our operation, Sir.
Q taken.
Why?
A Let copies of this Decision be furnished to the Secretary of the Department of Justice, as well as to the Head/Chief of the National
We do not contact them because we do not trust them. They might leak our information.38
The prosecution likewise failed to explain why they did not secure the presence of a representative from the Department the arresting
officer, IO1 Orellan, stated in his Affidavit that they only tried to coordinate with the barangay officials and the media, the testimonies of
the prosecution witnesses failed to show that they tried to contact a DOJ representative.
The testimonies of the prosecution witnesses also failed to establish the details of an earnest effort to coordinate with and secure presence
of the required witnesses. They also failed to explain why the buy-bust team felt "unsafe" in waiting for the representatives in Lim's house,
considering that the team is composed of at least ten (10) members, and the two accused were the only persons in the house.
It bears emphasis that the rule that strict adherence to the mandatory requirements of Section 21(1) of R.A. No. 9165, as amended, and its
IRR may be excused as long as the integrity and the evidentiary value of the confiscated items are properly preserved applies not just on
arrest and/or seizure by reason of a legitimate buy-bust operation but also on those lawfully made in air or sea port, detention cell or
national penitentiary, checkpoint, moving vehicle, local or international package/parcel/mail, or those by virtue of a consented search, stop
and frisk (Terry search), search incident to a lawful arrest, or application of plain view doctrine where time is of the essence and the arrest
and/or seizure is/are not planned, arranged or scheduled in advance.
To conclude, judicial notice is taken of the fact that arrests and seizures related to illegal drugs are typically made without a warrant; hence,
subject to inquest proceedings. Relative thereto, Sections 1 (A.1.10) of the Chain of Custody Implementing Rules and Regulations directs:
A.1.10. Any justification or explanation in cases of noncompliance with the requirements of Section 21 (1) of R.A. No. 9165, as amended,
shall be clearly stated in the sworn statements/affidavits of the apprehending/seizing officers, as well as the steps taken to preserve the
integrity and evidentiary value of the seized/confiscated items. Certification or record of coordination for operating units other than the
PDEA pursuant to Section 86 (a) and (b), Article IX of the IRR of R.A. No. 9165 shall be presented.39
While the above-quoted provision has been the rule, it appears that it has not been practiced in most cases elevated before Us. Thus, in
order to weed out early on from the courts' already congested docket any orchestrated or poorly built up drug-related cases, the following
should henceforth be enforced as a mandatory policy:
In the sworn statements/affidavits, the apprehending/seizing officers must state their compliance with the requirements of Section 21 (1)
of R.A. No. 9165, as amended, and its IRR.
In case of non-observance of the provision, the apprehending/seizing officers must state the justification or explanation therefor as well as
the steps they have taken in order to preserve the integrity and evidentiary value of the seized/confiscated items.
If there is no justification or explanation expressly declared in the sworn statements or affidavits, the investigating fiscal must not
immediately file the case before the court. Instead, he or she must refer the case for further preliminary investigation in order to determine
the (non) existence of probable cause.
If the investigating fiscal filed the case despite such absence, the court may exercise its discretion to either refuse to issue a commitment
order (or warrant of arrest) or dismiss the case outright for lack of probable cause in accordance with Section 5,40
Rule 112, Rules of Court.
WHEREFORE, premises considered, the February 23, 2017 Decision of the Court of Appeals in CA-G.R. CR HC No. 01280-MIN, which affirmed
the September 24, 2013 Decision of Regional Trial Court, Branch 25, Cagayan de Oro City, in Criminal Cases Nos. 2010-1073 and 2010-1074,
finding accused-appellant Romy Lim y Miranda guilty of violating Sections 11 and 5, respectively, of Article II of Republic Act No. 9165, is
IMMEDIATELY RELEASED from detention, unless he is being lawfully held for another cause. Let an entry of final judgment be issued
Let a copy of this Decision be furnished the Superintendent of the Davao Prison and Penal Farm, B.E. Dujali, Davao del Norte, for immediate
implementation. The said Director is ORDERED to REPORT to this Court within five (5) days from receipt of this Decision the action he has
Prosecution Service, the Office of the Solicitor General, the Public Attorney's Office, the Philippine National Police, the Philippine Drug
Enforcement Agency, the National Bureau of Investigation, and the Integrated Bar of the Philippines for their information and guidance.
Likewise, the Office of the Court Administrator is DIRECTED to DISSEMINATE copies of this Decision to all trial courts, including the Court of
Appeals.
SO ORDERED.
9|SPL: February 8, 2019 CASES
Leonardo-De Castro, C.J., Carpio, Bersamin, Perlas-Bernabe, Tijam, Reyes, A., Jr., Gesmundo, and Reyes, Jr. J., JJ., concur. 11 See People v. Badilla, 794 Phil. 263, 278 (2016); People v. Arenas, 791 Phil. 601, 610 (2016); and Saraum v. People, 779 Phil. 122, 132
Del Castillo, J., On wellness leave (2016).
Leonen, and Caguioa, JJ., See separate concurring opinion.
Jardeleza, J., no part prior OSG action. 12 United States v. Rawlins, 606 F.3d 73 (2010).

13 United States v. Rawlins, supra note 12, as cited in United States v. Mehmood, 2018 U.S. App. LEXIS 19232 (2018); United States v. De
Jesus-Concepcion, 652 Fed. Appx. 134 (2016); United States v. Rodriguez, 2015 U.S. Dist. LEXIS 35215 (2015); and United States v. Mark,
2012 U.S. Dist. LEXIS 95130 (2012).
September 21, 2018
14 See United States v. Rawlins, supra note 12, as cited in United States v. Mark, supra note 13.
NOTICE OF JUDGMENT
15 See United States v. Cardenas, 864 F.2d 1528 (1989), as cited in United States v. Yeley-Davis, 632 F.3d 673 (2011); United States v. Solis,
Sirs/Mesdames: 55 F. Supp. 2d 1182 (1999); United States v. Anderson, 1994 U.S. App. LEXIS 9193 (1994); United States v. Hogg, 1993 U.S. App. LEXIS 13732
(1993); United States v. Rodriguez-Garcia, 983 F.2d 1563 (1993); United States v. Johnson, 977 F.2d 1360 (1992); and United States v.
Please take notice that on September 4, 2018 a Decision, copy attached herewith, was rendered by the Supreme Court in the above-entitled Clonts,966 F.2d 1366 (1992).
case, the original of which was received by this Office on September 26, 2018 at 4:05 a.m.
16 Mallillin v. People, 576 Phil.576 (2008).
Very truly yours,
17 Mallillin v. People, supra, at 587, as cited in People v. Tamano, G.R. No. 208643, December 5, 2016, 812 SCRA 203, 228-229; People v.
(SGD.) EDGAR O. ARICHETA Badilla, supra note 11, at 280; Saraum v. People, supra note 11, at 132-133; People v. Dalawis, 772 Phil. 406, 417-418 (2015); and People v.
Clerk of Court Flores, 765 Phil. 535, 541-542 (2015). It appears that Mallillin was erroneously cited as "Lopez v. People" in People v. De la Cruz, 589 Phil.
259 (2008), People v. Sanchez, 590 Phil. 214 (2008), People v. Garcia,599 Phil. 416 (2009), People v. Denoman, 612 Phil. 1165 (2009), and
People v. Abelarde, G.R. No. 215713, January 22, 2018.

Endnotes: 18People v. Vicente Sipin y De Castro, G.R. No. 224290, June 11, 2018; People v. Amaro, 786 Phil. 139, 148 (2016); and People v. Enad, 780
Phil. 346, 358 (2016).
* On wellness leave.
19 See People v. Sic-Open, 795 Phil. 859, 872 (2016); People v. Badilla, supra note 11, at 275 276; People v. De la Cruz, 783 Phil. 620, 632
** No part. (2016); People v. Asislo, 778 Phil. 509, 516 (2016); People v. Dalawis, supra note 17, at 416; and People v. Flores, supra note 17, at 540.

1 Penned by Associate Justice Ronaldo B. Martin, with Associate Justices Romulo V. Borja and Oscar V. Badelles, concurring; rollo, pp. 3-19; 20 People v. Sic-Open, supra note 19, at 873; People v. Badilla, supra note 11, at 276; People v. De la Cruz, supra note 19, at 633; People v.
CA rollo, pp. 86-102. Asislo, supra note 19, at 516-517; People v. Dalawis, supra note 17, at 417; and People v. Flores, supra note 17, at 541.

2 Records, pp. 117-125; CA rollo, pp. 32-40. 21 Senate Journal. Session No. 80. 16th Congress, 1st Regular Session. June 4, 2014. p. 348.

3 Records (Criminal Case No. 2010-1073), pp. 3-4. 22 Id

4 Records (Criminal Case No. 2010-1074), pp. 3-4. 23Id.

5 Records (Criminal Case No. 2010-1073), pp. 19-20; records (Criminal Case No. 2010-1074), pp. 20-22. 24Id at 349.

6Id. at 2. 25Id. at 349-350.

7 Spelled as "Bajar" in the Request for Laboratory Examination on Drug Evidence (See Records of Criminal Case No. 2010-1073 [pp. 9-10]
and Criminal Case No. 2010-1074 [p. 9A]).
8 Records (Criminal Case No. 2010-1073), pp. 124-125; CA rollo, pp. 39-40.
9 Rollo, pp. 26-35.
10 R.A. No. 9165 took effect on July 4, 2002 (See People v. De la Cruz, 591 Phil. 259, 272 [2008]).
26 See People v. Mola, G.R. No. 226481, April l8, 2018.
27 TSN, June 2, 2011, pp. 25-28.
28Id. at 17-19.
29 Under the original provision of Section 21(1) of R.A. No. 9165, after seizure and confiscation of the drugs, the apprehending team was
required to immediately conduct a physical inventory and to photograph the same in the presence of (1) the accused or the person/s from
whom such items were confiscated and/or seized, or his/her representative or counsel, (2) a representative from the media and (3) the

10 | S P L : F e b r u a r y 8 , 2 0 1 9 C A S E S
DOJ, and (4) any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof. As amended
by R.A. No. 10640, it is now mandated that the conduct of physical inventory and photograph of the seized items must be in the presence
of (1) the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, (2) with an
elected public official and (3) a representative of the National Prosecution Service or the media who shall sign the copies of the inventory
and be given a copy thereof (See People v. Ocampo, G.R. No. 232300, August, 2018; People v. Allingag, G.R. No. 233477, July 30, 2018;
People v. Vicente Sipin y De Castro, supra note 18; People v. Reyes, G.R. No. 219953, Apri123, 2018; and People v. Mola, supra note 26).
30Supra note 18.
31 See also People v. Reyes, supra note 29 and People v. Mota, supra note 26.
32People v. Vicente Sipin y De Castro, supra note 18. See also People v. Reyes, supra note 29. and People v. Mola, supra note 26.
33 G.R. No. 233744, February 28, 2018. (Citations omitted).
34 See also People v. Crespo, G.R. No. 230065, March 14, 2018 and People v. Sanchez, G.R. No. 231383, March 7, 2018. (Emphasis and
underscoring supplied)
35 TSN, June 2, 2011, p.l9.
36 TSN, August 5, 2011, p. 13.
37Id. at 15.
38Id. at 14-15.
39 See People v. Alvarado, G.R. No. 234048, April 23, 2018 and People v. Saragena, G.R. No. 210677, August 23,2017.
40 SEC. 5. When warrant of arrest may issue. -(a) By the Regional Trial Court. -Within ten (10) days from the filing of the complaint or
information, the judge shall personally evaluate the resolution of the prosecutor and its supporting evidence. He may immediately dismiss
the case if the evidence on record clearly fails to establish probable cause. If he finds probable cause, he shall issue a warrant of arrest, or
a commitment order if the accused has already been arrested pursuant to a warrant issued by the judge who conducted the preliminary
investigation or when the complaint or information was filed pursuant to Section 6 of this Rule. In case of doubt on the existence of probable
cause, the judge may order the prosecutor to present additional evidence within five (5) days from notice and the issue must be resolved
by the court within thirty (30) days from the filing of the complaint of information.
CONCURRING OPINION
LEONEN, J.:
The failure of law enforcement officers to comply with the chain of custody requirements spelled out in Section 21 of Republic Act No. 9165
(otherwise known as the Comprehensive Dangerous Drugs Act of 2002), as amended, coupled with a failure to show justifiable grounds for
their non- compliance engenders reasonable doubt on the guilt of persons from whom illegal drugs and drug paraphernalia were supposedly
seized. Acquittal must then ensue. This is especially true in arrests and seizures occasioned by buy-bust operations, which, by definition, are
preplanned, deliberately arranged or calculated operations.
Asserting proper compliance with chain of custody requirements- and the ensuing acquittal of an accused due to the law enforcement
officers' unjustified non-compliance-is not a matter of calibrating jurisprudence. It is merely a matter of applying the clear text of the
Comprehensive Dangerous Drugs Act.
I concur that the accused-appellant, Romy Lim, must be acquitted on account of reasonable doubt.
I
Conviction in criminal actions requires proof beyond reasonable doubt. Rule 133, Section 2 of the Revised Rules on Evidence spells out this
requisite quantum of proof:
Section 2. Proof beyond reasonable doubt. - In a criminal case, the accused is entitled to an acquittal, unless his guilt is shown beyond
reasonable doubt. Proof beyond reasonable doubt does not mean such a degree of proof, excluding possibility of error, produces absolute
certainty.
Moral certainty only is required, or that degree of proof which produces conviction in an unprejudiced mind.
Proof beyond reasonable doubt is ultimately a matter of conscience. Though it does not demand absolutely impervious certainty, it still
charges the prosecution with the immense responsibility of establishing moral certainty. Much as it ensues from benevolence, it is not
merely engendered by abstruse ethics or esoteric values; it arises from a constitutional imperative:
This rule places upon the prosecution the task of establishing the guilt of an accused, relying on the strength of its own evidence, and not
banking on the weakness of the defense of an accused. Requiring proof beyond reasonable doubt finds basis not only in the due process
clause of the Constitution, but similarly, in the right of an accused to be "presumed innocent until the contrary is proved." "Undoubtedly, it
is the constitutional presumption of innocence that lays such burden upon the prosecution." Should the prosecution fail to discharge its
burden, it follows, as a matter of course, that an accused must be acquitted. As explained in Basilio v. People of the Philippines:
We ruled in People v. Ganguso:
An accused has in his favor the presumption of innocence which the Bill of Rights guarantees. Unless his guilt is shown beyond reasonable
doubt, he must be acquitted. This reasonable doubt standard is demanded by the due process clause of the Constitution which protects the
accused from conviction except upon proof beyond reasonable doubt of every fact necessary to constitute the crime with which he is
charged. The burden of proof is on the prosecution, and unless it discharges that burden the accused need not even offer evidence in his
behalf, and he would be entitled to an acquittal. Proof beyond reasonable doubt does not, of course, mean such degree of proof as,
excluding the possibility of error, produce absolute certainty. Moral certainty only is required, or that degree of proof which produces
conviction in an unprejudiced mind. The conscience must be satisfied that the accused is responsible for the offense charged.
Well-entrenched in jurisprudence is the rule that the conviction of the accused must rest, not on the weakness of the defense, but on the
strength of the prosecution. The burden is on the prosecution to prove guilt beyond reasonable doubt, not on the accused to prove his
innocence.1
II
The requisites that must be satisfied to sustain convictions for illegal sale of dangerous drugs under Section 5 of the Comprehensive
Dangerous Drugs Act are settled.
In actions involving the illegal sale of dangerous drugs, the following elements must first be established: (1) proof that the transaction or
sale took place and (2) the presentation in court of the corpus delicti or the illicit drug as evidence.2 (Emphasis in the original, citation
omitted )
On the second element of corpus delicti, Section 21 of the Comprehensive Dangerous Drugs Act, as amended by Republic Act No. 10640,
spells out requirements for the custody and disposition of confiscated, seized, and/or surrendered drugs and/or drug paraphernalia. Section
21 (1) to (3) stipulate requirements concerning custody prior to the filing of a criminal case:
Section 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs,
Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. -The PDEA shall take charge and
have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as
instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following
manner:
11 | S P L : F e b r u a r y 8 , 2 0 1 9 C A S E S
(1)
The apprehending team having initial custody and control of the dangerous drugs, controlled precursors and essential chemicals,
instruments/paraphernalia and/or laboratory equipment shall, immediately after seizure and confiscation, conduct a physical inventory of
the seized items 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, with an elected public official and a representative of the National Prosecution Service or tile
media who shall be required to sign the copies of the inventory and be given a copy thereof Provided, That the physical inventory and
photograph shall be conducted at the place where the search warrant is served; or at the nearest police station or at the nearest office of
the apprehending officer/team, whichever is practicable, in case of warrantless seizures: Provided, finally, That noncompliance of 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 and custody over said items.
(2)
Within twenty-four (24) hours upon confiscation/seizure of dangerous drugs, plant sources of dangerous drugs, controlled precursors and
essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment, the same shall be submitted to the PDEA Forensic
Laboratory for a qualitative and quantitative examination;
(3)
A certification of the forensic laboratory examination results, which shall be done by the forensic laboratory examiner, shall be issued
immediately upon the receipt of the subject iterm/s: Provided, That when the volume of dangerous drugs, plant sources of dangerous drugs,
and controlled precursors and essential chemicals does not allow the completion of testing within the time frame, a partial laboratory
examination report shall be provisionally issued stating therein the quantities of dangerous drugs still to be examined by the forensic
laboratory: Provided, however, That a final certification shall be issued immediately upon completion of the said examination and
certification[.] (Emphasis supplied )
People v. Nandi3 thus, summarized that four (4) links "should be established in the chain of custody of the confiscated item: first, the
seizure and marking, if practicable, of the illegal drug recovered from the accused by the apprehending officer; second, the turnover of the
illegal drug seized by the apprehending officer to the investigating officer; third, the turnover by the investigating officer of the illegal drug
to the forensic chemist for laboratory examination; and fourth, the turnover and submission of the marked illegal drug seized from the
forensic chemist to the court."4
People v. Morales y Midarasa5 explained that "failure to comply with Paragraph 1, Section 21, Article II of RA 9165 implie[s] a concomitant
failure on the part of the prosecution to establish the identity of the corpus delicti[.]"6 It "produce[s] doubts as to the origins of the [seized
paraphernalia]."7
Compliance with Section 21's chain of custody requirements ensures the integrity of the seized items. Conversely, non-compliance with it
tarnishes the credibility of the corpus delicti around which prosecutions under the Comprehensive Dangerous Drugs Act revolve.
Consequently, they also tarnish the very claim that an offense against the Comprehensive Dangerous Drugs Act was committed.
Fidelity to chain of custody requirements is necessary because, by nature, narcotics may easily be mistaken for everyday objects. Chemical
analysis and detection through methods that exceed human sensory perception (such as, specially trained canine units and screening
devices) are often needed to ascertain the presence of dangerous drugs. The physical similarity of narcotics with everyday objects facilitates
their adulteration and substitution. It also makes conducive the planting of evidence. In Mallillin v. People8
A unique characteristic of narcotic substances is that they are not readily identifiable as in fact they are subject to scientific analysis to
determine their composition and nature. The Court cannot reluctantly close its eyes to the likelihood, or at least the possibility, that at any
of the links in the chain of custody over the same there could have been tampering, alteration or substitution of substances from other
cases by accident or otherwise - in which similar evidence was seized or in which similar evidence was submitted for laboratory testing.
Hence, in authenticating the same, a standard more stringent than that applied to cases involving objects which are readily identifiable
must be applied, a more exacting standard that entails a chain of custody of the item with sufficient completeness if only to render it
improbable that the original item has either been exchanged with another or been contaminated or tampered with.9 (Emphasis supplied)
People v. Holgado, et al.,10 recognized that:
Compliance with the chain of custody requirement ... ensures the integrity of confiscated, seized, and/or surrendered drugs and/or drug
paraphernalia in four (4) respects: first, the nature of the substances or items seized; second, the quantity (e.g., weight) of the substances
or items seized; third, the relation of the substances or items seized to the incident allegedly causing their seizure; and fourth, the relation
of the substances or items seized to the person/s alleged to have been in possession of or peddling them. Compliance with this requirement
forecloses opportunities for planting, contaminating, or tampering of evidence in any manner. "11
When the identity of corpus delicti is jeopardized by non-compliance with Section 21, the second element of the offense of illegal sale of
dangerous drugs remains wanting. It follows then, that this non-compliance justifies an accused's acquittal. In People v. Lorenzo:12
In both illegal sale and illegal possession of prohibited drugs, conviction cannot be sustained if there is a persistent doubt on the identity of
the drug. The identity of the prohibited drug must be established with moral certainty. Apart from showing that the elements of possession
or sale are present, the fact that the substance illegally possessed and sold in the first place is the same substance offered in court as exhibit
must likewise be established with the same degree of certitude as that needed to sustain a guilty verdict.13 (Emphasis supplied )
III
As against the objective requirements imposed by statute, guarantees coming from the prosecution concerning the identity and integrity
of seized items are naturally designed to advance the prosecution's own cause. These guarantees conveniently aim to knock two targets
with one blow. First, they insist on a showing of corpus delicti divorced from statutory impositions and based on standards entirely the
prosecution's own. Second, they justify non-compliance by summarily pleading their own assurance. These self-serving assertions cannot
justify a conviction.
Even the customary presumption of regularity in the performance of official duties cannot suffice. People v. Kamad14 explained that the
presumption of regularity applies only when officers have shown compliance with "the standard conduct of official duty required by law[.]
"15 It is not a justification for dispensing with such compliance:
Given the flagrant procedural lapses the police committed in handling the seized shabu and the obvious evidentiary gaps in the chain of its
custody, a presumption of regularity in the performance of duties cannot be made in this case. A presumption of regularity in the
performance of official duty is made in the context of an existing rule of law or statute authorizing the performance of an act or duty or
prescribing a procedure in the performance thereof The presumption applies when nothing in the record suggests that the law enforcers
deviated from the standard conduct of official duty required by law; where the official act is irregular on its face, the presumption cannot
arise. In light of the flagrant lapses we noted, the lower courts were obviously wrong when they relied on the presumption of regularity in
the performance of official duty.
We rule, too, that the discrepancy in the prosecution evidence on the identity of the seized and examined shabu and that formally offered
in court cannot but lead to serious doubts regarding the origins of the shabu presented in court. This discrepancy and the gap in the chain
of custody immediately affect proof of the corpus delicti without which the accused must be acquitted.
From the constitutional law point of view, the prosecution's failure to establish with moral certainty all the elements of the crime and to
identify the accused as the perpetrator signify that it failed to overturn the constitutional presumption of innocence that every accused
enjoys in a criminal prosecution. When this happens, as in this case, the courts need not even consider the case for the defense in deciding
the case; a ruling for acquittal must forthwith issue.16 (Emphasis supplied, citation omitted )
Jurisprudence has thus been definite on the consequence of non- compliance. This Court has categorically stated that whatever presumption
there is concerning the regularity of the manner by which officers gained and maintained custody of the seized items is "negate[d]":17
In People v. Orteza, the Court did not hesitate to strike down the conviction of the therein accused for failure of the police officers to observe
the procedure laid down under the Comprehensive Dangerous Drugs Law, thus:
First, there appears nothing in the records showing that police officers complied with the proper procedure in the custody of seized drugs
as specified in People v. Lim, i.e., any apprehending team having initial control of said drugs and/or paraphernalia should, immediately after
seizure or confiscation, have the same physically inventoried and photographed in the presence of the accused, if there be any, and or his
representative, who shall be required to sign the copies of the inventory and be given a copy thereof. The failure of the agents to comply
with the requirement raises doubt whether what was submitted for laboratory examination and presented in court was actually recovered
from appellant. It negates the presumption that official duties have been regularly performed by the police officers.
....
12 | S P L : F e b r u a r y 8 , 2 0 1 9 C A S E S
IN FINE, the unjustified failure of the police officers to show that the integrity of the object evidence-shabu was properly preserved negates
the presumption of regularity accorded to acts undertaken by police officers in the pursuit of their official duties.18 (Emphasis supplied,
citations omitted)
The Comprehensive Dangerous Drugs Act requires nothing less thari strict compliance. Otherwise, the raison d'etre of the chain of custody
requirement is compromised. Precisely, deviations from it leave open the door for tampering, substitution and planting of evidence.
Even the performance of acts which approximate compliance but do not strictly comply with the Section 21 has been considered insufficient.
People v. Magat,19 for example, emphasized the inadequacy of merely marking the items supposedly seized: "Marking of the seized drugs
alone by the law enforcers is not enough to comply with the clear and unequivocal procedures prescribed in Section 21 of R.A. No. 9165":20
A review of jurisprudence, even prior to the passage of the R.A. No. 9165, shows that this Court did not hesitate to strike down convictions
for failure to follow the proper procedure for the custody of confiscated dangerous drugs. Prior to R.A. No. 9165, the Court applied the
procedure required by Dangerous Drugs Board Regulation No. 3, Series of 1979 amending Board Regulation No. 7, Series of 1974.
In People v. Laxa, the policemen composing the buy-bust team failed to mark the confiscated marijuana immediately after the alleged
apprehension of the appellant. One policeman even admitted that he marked the seized items only after seeing them for the first time in
the police headquarters. The Court held that the deviation from the standard procedure in anti-narcotics operations produces doubts as to
the origins of the marijuana and concluded that the prosecution failed to establish the identity of the corpus delicti.
Similarly, in People v. Kimura, the Narcom operatives failed to place markings on the alleged seized marijuana on the night the accused
were arrested and to observe the procedure in the seizure and custody of the drug as embodied in the aforementioned Dangerous Drugs
Board Regulation No. 3, Series of 1979. Consequently, we held that the prosecution failed to establish the identity of the corpus delicti.
In Zaragga v. People, involving a violation of R.A. No. 6425, the police failed to place markings on the alleged seized shabu immediately after
the accused were apprehended. The buy-bust team also failed to prepare an inventory of the seized drugs which accused had to sign, as
required by the same Dangerous Drugs Board Regulation No. 3, Series of 1979. The Court held that the prosecution failed to establish the
identity of the prohibited drug which constitutes the corpus delicti.
In all the foregoing cited cases, the Court acquitted the appellants due to the failure of law enforcers to observe the procedures prescribed
in Dangerous Drugs Board Regulation No. 3, Series of 1979, amending Board Regulation No. 7, Series of 1974, which are similar to the
procedures under Section 21 of R.A. No. 9165. Marking of the seized drugs alone by the law enforcers is not enough to comply with the
clear and unequivocal procedures prescribed in Section 21 of R.A. No. 9165.
In the present case, although PO1 Santos had written his initials on the two plastic sachets submitted to the PNP Crime Laboratory Office
for examination, it was not indubitably shown by the prosecution that PO1 Santos immediately marked the seized drugs in the presence of
appellant after their alleged confiscation. There is doubt as to whether the substances seized from appellant were the same ones subjected
to laboratory examination and presented in court.
A unique characteristic of narcotic substances is that they are not readily identifiable as in fact they have to be subjected to scientific analysis
to determine their composition and nature. Congress deemed it wise to incorporate the jurisprudential safeguards in the present law in an
unequivocal language to prevent any tampering, alteration or substitution, by accident or otherwise. The Court, in upholding the right of
the accused to be presumed innocent, can do no less than apply the present law which prescribes a more stringent standard in handling
evidence than that applied to criminal cases involving objects which are readily identifiable.
R.A. No. 9165 had placed upon file law enforcers the duty to establish the chain of custody of the seized drugs to ensure the integrity of the
corpus delicti. Thru proper exhibit handling, storage, labeling and recording, the identity of the seized drugs is insulated from doubt from
their confiscation up to their presentation in court .21 (Emphasis supplied, citations omitted)
IV
The precision required in the custody of seized drugs and drug paraphernalia is affirmed by the amendments made to Section 21 by Republic
Act No. 10640.
The differences between Section 21(1) as originally stated and as amended are shown below:
Republic Act No. 9165
Republic Act No . 10640
SEC. 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled
Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment.
The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential
chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper
disposition in the following manner:
(1) 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;
SEC. 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled
Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. -
The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential
chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper
disposition in the following manner:
(1) The apprehending team having initial custody and control of the dangerous drugs, controlled precursors and essential chemicals,
instruments/paraphernalia and/or laboratory equipment
shall, immediately after seizure and confiscation,
conduct a physical inventory of the seized items
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,
with an elected public official and a representative of the National Prosecution Service or the media
who shall be required to sign the copies of the inventory and be given a copy thereof;
Provided, That the physical inventory and photograph shall be conducted at the place where the search warrant is served; or at the nearest
police station or at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable, in case of
warrantless seizure;
13 | S P L : F e b r u a r y 8 , 2 0 1 9 C A S E S
Provided, finally, That noncompliance of these requirements under justifiable grounds, as long as the integrity and the evidentiary value of How did you know that the one bought and the one searched were not interchanged?
the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures and custody over A
said items. I marked the item I recovered from Romy Lim, Sir.

Section 21(1) was simultaneously relaxed and made more specific by Republic Act No. 10640. Q
Where did you mark it Mr. Witness, in what place?
It was relaxed with respect to the persons required to be present during the physical inventory and photographing of the seized items. A
Originally under Republic Act No. 9165, the use of the conjunctive 'and' indicated that Section 21 required the presence of all of the At their house, Sir.26 (Emphasis supplied )
following, in addition to "the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or
counsel": Meanwhile, Intelligence Officer 1 Nestle N. Carin (Officer Carin), the poseur-buyer, and Intelligence Officer 2 Vincent Cecil Orcales (Officer
Orcales), the team leader of the buy-bust operation, both testified that the inventory and marking happened in their office.
First, a representative from the media; Because I was present, sir.
ACP VICENTE, JR.: (continuing to the witness [Officer Carin] )
Second, representative from the Department of Justice (DOJ); and Q
You said that Romy Lim handed the sachet of shabu to you, what happened to that sachet of shabu, Ms. Witness?
Third, any elected public official. A
I turned over it (sic) to IOl Orellan during the inventory.
As amended by Republic Act No. 10640, Section 21(1) uses the disjunctive 'or' (i.e., "with an elected public official and a representative of
the National Prosecution Service or the media"). Thus, a representative from the media and a representative from the National Prosecution
Service are now alternatives to each other. Q
Where did he conduct the inventory?
Section 21(1), as amended, now includes a specification of locations where the physical inventory and taking of photographs must be A
conducted (n.b., it uses the mandatory "shall"). It now includes the following proviso:22 At our office.
Provided, That the physical inventory and photograph shall be conducted at the place where the search warrant is served; or at the nearest
police station or at the nearest office of the apprehending officer/team, whichever is practicable, in case of warrantless seizures. (Emphasis
supplied ) Q
Lescano v. People23 summarizes Section 21(1)'s requirements: Where?
As regards the items seized and subjected to marking, Section 21(1) of the Comprehensive Dangerous Drugs Act, as amended, requires the A
performance of two (2) actions: physical inventory and photographing. Section 21(1) is specific as to when and where these actions must At the PDEA Office, sir.
be done. As to when, it must be "immediately after seizure and confiscation." As to where, it depends on whether the seizure was supported
by a search warrant. If a search warrant was served, the physical inventory and photographing must be done at the exact same place that
the search warrant is served. In case of warrantless seizures, these actions must be done "at the nearest police station or at the nearest Q
office of the apprehending officer/team, whichever is practicable." ... How did you know that?
A
Moreover, Section 21(1) requires at least three (3) persons to be present during the physical inventory and photographing. These persons Because I was there sir, during the inventory.
are: first, the accused or the person/s from whom the items were seized; second, an elected public official; and third, a representative of
the National Prosecution Service. There are, however, alternatives to the first and the third. As to the first (i.e., the accused or the person/s
from whom items were seized), there are two (2) alternatives: first, his or her representative; and second, his or her counsel. As to the Q
representative of the National Prosecution Service, a representative of the media may be present in his or her place.24 Then, what did he do with the sachet of shabu Ms. Witness?
A
V He put a marking.

Set against the strict requirements of Section 21(1) of Republic Act No. 9165,25 this case screams of glaring infringements.
Q
"the apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory How did you know?
and photograph the same" A
Because I was present, sir.[27 (Emphasis supplied)
The prosecution's witnesses gave contradicting testimonies on the place where the physical inventory was conducted. Intelligence Officer ACP VICENTE, JR.: (To the witness [Officer Orcales] )
1 Albert Orellan (Officer Orellan), the arresting officer, testified that he marked the seized items in the house of Romy Lim: Q
Pros. Vicente: (continuing to the witness [Officer Orellan] ) How did Agent Orellan handle the evidence? The drugs he recovered and the buy-bust item? And what did he do with it?
Q A

14 | S P L : F e b r u a r y 8 , 2 0 1 9 C A S E S
He made an inventory. Although Officer Orcales testified that he took pictures "[i]in the house and also in the office, "32 the only pictures in the records of the case
were those taken in the PDEA office.33

Q During cross-examination, Officer Carin reiterated that the inventory and the taking of photographs were done in their office and not in
How about the marking? Romy Lim's house.34
A
He made markings on it. "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

Q Moreover, not one of the third persons required by Section 21(1) prior to its amendment-"a representative from the media and the
How did you know? Department of Justice (DOJ), and any elected public official"-was present during the physical inventory and taking of photographs. Instead,
A only accused-appellant Romy Lim and accused Eldie Gorres were present.
I supervised them.
"who shall be required to sign the copies of the inventory and be given a copy thereof'

Q Since not one of the three required personalities were present during the operation, the inventory was not signed. Even the two accused
And where did Agent Orellan made the inventory? were not given a chance to sign the shabu sachets that were allegedly found in their possession:
A Atty. Demecillo: (continuing to the witness [Officer Orellan])
In the office.28 (Emphasis supplied)

Surprisingly, Officer Carin's testimony was corroborated by Officer Orellan in his Affidavit when he narrated that they "brought the arrested Q
suspects in [their] office and conducted inventory."29 In this Inventory, no signature ofthe two accused?
A
The taking of pictures was likewise not made immediately after seizure and confiscation. In their separate testimonies, Officers Orellan and The accused did not sign, Sir.
Carin stated:
Pros. Vicente: (continuing to the witness (Officer Orellan])
Q
Not also sign[ed] by a man from the DOJ?
Q A
What else did you do at the office, Mr. Witness, did you take pictures? Yes, Sir.
A
We asked them of their real identity Sir the two of them, and then we took pictures together with the evidence seized from them.
Q
Also from the media?
Court: A
None, Sir.

These pictures IO1 Orellan were taken at the office?

Q
Also by an elected official?
A A
Yes, Your Honor. None, Sir.35

These infringements are fatal errors. The police operatives' conduct failed to dispel all reasonable doubt on the integrity of the shabu
Court: supposedly obtained from accused-appellant. The buy-bust team failed to account for the handling and safeguarding of the shabu from the
No pictures at the house of the accused? moment it was purportedly taken from accused-appellant.
A
None, Your Honor.30 (Emphasis supplied) What is critical, however, is not the conduct of an inventory per se. Rather, it is the certainty that the items allegedly taken from the accused
ACP VICENTE, JR.: (continuing to the witness [Officer Carin]) are the exact same items ultimately adduced as evidence before courts. People v. Nandi36 requires the ensuring of four (4) links in the
.... custody of seized items: from the accused to the apprehending officers; from the apprehending officers to investigating officers; from
Q Aside from markings what else did you do at the office? investigating officers to forensic chemists; and, from forensic chemists to courts. The endpoints in each link (e.g., the accused and the
A I took pictures during the inventory .31 (Emphasis supplied)

15 | S P L : F e b r u a r y 8 , 2 0 1 9 C A S E S
apprehending officer in the first link, the forensic chemist and the court in the fourth link) are preordained. What is precarious is not each I only heard her name to be one of the forensic chemists in the crime lab, Sir.
of these end points but the transitions or transfers of seized items from one point to another.

Section 21(1)'s requirements are designed to make the first and second links foolproof. Conducting the inventory and photographing Q
immediately after seizure, exactly where the seizure was done (or at a location as practicably close to it) minimizes, if not eliminates, room Usually you have not seen her?
for adulteration or the planting of evidence. The presence of the accused (or a representative) and of third-party witnesses, coupled with A
their attestations on the written inventory, ensures that the items delivered to the investigating officer are the items which have actually I saw her but we were not friends, Sir.
been inventoried.

The prosecution's case could have benefitted from the presence of the third-party witnesses required by Section 21(1) of the Comprehensive Q
Dangerous Drugs Act. Indeed, the requirement that the inventory and photographing be done "immediately after the seizure and But that evening of October 20, she was not the very person who received the sachet of shabu for examination?
confiscation" necessarily means that the required witnesses must also be present during the seizure or confiscation. People v. Mendoza37 A
confirms this and characterized the presence of these witnesses as an "insulating presence [against] the evils of switching, 'planting' or Only the receiving clerk, Sir.
contamination ":38
The consequences of the failure of the arresting lawmen to comply with the requirements of Section 21(1) ... were dire as far as the
Prosecution was concerned. Without the insulating presence of the representative from the media or the Department of Justice, or any Q
elected public official during the seizure and marking of the sachets of shabu, the evils of switching, "planting" or contamination of the Not personally Caceres?
evidence that had tainted the buy-busts conducted under the regime of RA No. 6425 (Dangerous Drugs Act of 1972) again reared their ugly A
heads as to negate the integrity and credibility of the seizure and confiscation of the sachets of shabu that were evidence herein of the No, Sir.
corpus delicti, and thus adversely affected the trustworthiness of the incrimination of the accused. Indeed, the insulating presence of such
witnesses would have preserved an unbroken chain of custody.39
In blatant disregard of statutory requirements, not one of the three (3) insulating witnesses required by Section 21(1) was shown to be Q
present during the arrest, seizure, physical inventory and taking of pictures. After delivering these sachets of shabu, you went home?
A
The Court should not lose sight of how accused-appellant's apprehension was supposedly occasioned by a buy-bust operation. This I went back to our office, Sir.
operation was allegedly prompted by anterior information supplied by an unidentified confidential informant.40 Acting on the information,
Regional Director Lt. Col. Edwin Layese supposedly organized a ten-person buy-bust team41 and briefed them on the operation. Thereafter,
the team claims to have managed to prepare the P500.00 bill buy-bust money, a Coordination Form, and other documents.42 All these Q
happened from the time they were informed by their confidential informant at 8:00pm up to the time they were dispatched for the From there, you did not know anymore what happened to the sachet of shabu you delivered for examination?
operation at around 9:45 pm.43 A
I don't know, Sir.44
While the team managed to secure preliminaries, it utterly failed at observing Section 21(1)'s requirements. Certainly, if the buy-bust team His statements were corroborated by the testimony of Officer Orcales who stated that he was with Officer Orellan when the latter gave the
was so fastidious at preparatory tasks, it should have been just as diligent with observing specific statutory demands that our legal system seized items to the crime laboratory personnel. He confirmed that the person who received it was not Chemist Caceres and that he did not
has long considered to be critical in securing convictions. It could not have been bothered to even have one third-party witness present. know who it was.45

With the buy-bust team's almost two-hour briefing period and the preparation of the necessary documents, the prosecution appears to This break in the chain of custody opens up the possibility of substitution, alteration, or tampering of the seized drugs during the turn over
have been diligently prepared. How the buy-bust team can be so lax in actually carrying out its calculated operation can only raise suspicions. to the chemist, especially since the amount was as little as 0.02 grams. Thus, the illegal drugs tested by the chemist may not be the same
That diligence is the most consummate reason for not condoning the buy-bust team's inadequacies. items allegedly seized by the buy-bust team from accused-appellant. The doubt that the break created should have been enough to acquit
accused-appellant.
The prosecution likewise failed to account for the third link-from the investigating officers to the forensic chemists. Officer Orellan testified
that he did not know the person who received the seized items from him in the crime laboratory. VI
Atty. Demecillo: (continuing to the witness [Officer Orellan] )
Q Section 21(1), as amended, now also includes a proviso that leaves room for noncompliance under "justifiable grounds":
Who was the person who received the drugs you delivered in the crime lab? Provided, finally, That noncompliance of these requirements under justifiable grounds, as long as the integrity and the evidentiary value of
A the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures and custody over
I cannot exactly remember who was that officer who received that request Sir but I am sure that he is one of the personnel of the crime said items. (Emphasis supplied)
laboratory, Sir. This proviso was taken from the Implementing Rules and Regulations of Republic Act No. 9165:
Provided, further, that non-compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value
ofthe seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody
Q over said items[.] (Emphasis supplied)
You know Forensic Chemist Charity Peralta Caceres? To sanction non-compliance, two requisites must be satisfied. First, the prosecution must identify and prove "justifiable grounds." Second,
A it must show that, despite non-compliance, the integrity and evidentiary value of the seized items were properly preserved. To satisfy the

16 | S P L : F e b r u a r y 8 , 2 0 1 9 C A S E S
second requirement, the prosecution must establish that positive steps were observed to ensure such preservation. The prosecution cannot
rely on broad justifications and sweeping guarantees that the integrity and evidentiary value of seized items were preserved.
The prosecution presented the following reasons of the buy-bust team as "justifiable grounds" why they failed to have the required
witnesses present during their operation: First, the operation was conducted late at night; Second, it was raining during their operation;
Third, it was unsafe for the team "to wait at Lim's house "46; Fourth, they exerted effort to contact the barangay officials and a media
representative to no avail.47 The Ponencia added that "[t]he time constraints and the urgency of the police action understandably
prevented the law enforcers from ensuring the attendance of the required witnesses, who were not improbably at a more pressing
engagement when their presence was requested. "48 According to the Ponencia, "there was no genuine and sufficient attempt to comply
with the law. "49
I join Justice Diosdado Peralta m finding these explanations inadequate.
First, the testimony of team-leader Officer Orcales negates any allegation of effort that the buy-bust team made to secure the presence of
a barangay official in their operation:
ATTY. DEMECILLO: (To the witness [Officer Orcales])
....
Q let these ideals fall by the wayside, jettisoned in favor of considerations of convenience and to facilitate piecemeal convictions for ostensible
Before going to the house of the accused, why did you not contact a barangay official to witness the operation?
A from criminal conviction will be meted upon persons whose guilt could have clearly been established by police officers' mere adherence to
There are reasons why we do not inform a barangay official before our operation, Sir.
Q ACCORDINGLY, I vote that the Decision dated February 23, 2017 of the Court of Appeals in CA-G.R. CR HC No. 01280-MIN, be REVERSED and
Why?
A doubt.
We do not contact them because we do not trust them. They might leak our information.50
Assuming that the buy-bust team has reason not to trust the barangay officials, they could have contacted any other elected official. The
presence of barangay officials is not particularly required. What Section 21(1) requires is the presence of any elected officiaL
Second, the prosecution failed to explain why they did not contact a representative of the Department of Justice. Officer Orellan, in his
Affidavit, mentioned that they only tried to coordinate with the barangay officials and the media.51 The testimonies of the prosecution's
witnesses were bereft of any statement that could show that they tried to contact a representative of the Department of Justice-one of the
three required witnesses.
Third, the buy-bust team did not specifically state the kind of effort they made in trying to contact the required witnesses. A general
statement that they exerted earnest effort to coordinate with them is not enough. They should narrate the steps they carried out in getting
the presence of a Department of Justice representative, a media representative, and an elected official. Otherwise, it will be easy to abuse
non-compliance with Section 21(1) since a sweeping statement of "earnest effort" is enough justify non-compliance.
Fourth, the prosecution failed to state the basis why the buy-bust team felt "unsafe" in waiting for the representatives in Lim's house. To
reiterate, they were composed of at least ten members. They outnumber the two accused, who were the only persons in the house. They
were able to control the accused's movement when they ordered them "to put their hands on their heads and to squat on the floor."52
Moreover, when frisked, the agents did not find any concealed weapon in the body of the two accused. How the PDEA agents could have
felt "unsafe" in this situation is questionable, at the very least.
Finally, there was no urgency involved and, certainly, the team was not under any time limit in conducting the buy-bust operation and in
apprehending the accused-appellant. As pointed out by Justice Alfredo Benjamin S. Caguioa in his Reflections, there could have been no
urgency or time constraint considering that the supposed sale of drugs happened at Lim's house.53 The team knew exactly where the sale
happens. They could have conducted their operation in another day-not late at night or when it was raining-and with the presence of the
required witnesses. This could have also allowed them to conduct surveillance to confirm the information they received that accused-
appellant was indeed selling illegal drugs.
As farcical as the buy-bust team's excuses are, it would be equally farcical for us to condone it.
VII
The prosecution offers nothing more than sweeping excuses and self- serving assurances. It would have itself profit from the buy-bust
team's own inadequacies. We cannot be a party to this profligacy.
Rather than rely on the courts' licentious tolerance and bank on favorable accommodations, our police officers should be exemplary. They
should adhere to the highest standards, consistently deliver commendable results, and remain beyond reproach. Section 21's requirements
are but a bare minimum. Police officers should be more than adept at satisfying them.
At stake are some of the most sacrosanct pillars of our constitutional order and justice system: due process, the right to be presumed
innocent, the threshold of proof beyond reasonable doubt and the duty of the prosecution to build its case upon its own merits. We cannot
wrongdoing.
Requiring proof beyond reasonable doubt hearkens to our individual consciences. I cannot accept that the severe consequences arising
a bare minimum. Certainly, it is not too much to ask that our law enforcement officers observe what the law mandates. The steps we now
require outlined in the able ponencia of my esteemed colleague Justice Diosdado Peralta is definitely a step forward.
SET ASIDE. Accused-appellant Romy Lim y Miranda must be ACQUITTED for failure of the prosecution to prove his guilt beyond reasonable
Endnotes:
1 Macayan, Jr. v. People, 756 Phil. 202, 213-214 (2015) [Per J. Leonen, Second Division], citing CONST, I (1987), Art. III, Sec. 1; CONST, (1987),
Art. III, Sec. 14(2); People of the Philippines v. Solayao, 330 Phil. 811, 819 (1996) [Per J. Romero, Second Division]; and Basilio v. People of
the Philippines, 591 Phil. 508, 521-522 (2008) [Per J. Velasco, Jr., Second Division].
2 People v. Morales y Midarasa, 630 Phil. 215 (2010) [Per. J Del Castillo, Second Division].
3 639 Phil. 134 (2010) [Per J. Mendoza, Second Division].
4 Id. at 144-145, citing People v. Kamad, 624 Phil. 289,304 (2010) [Per J. Brion, Second Division].
5 630 Phil. 215 (2010) [Per J. Del Castillo, Second Division].
6 Id. at 229.
7 People v. Laxa, 414 Phil. 156, 170 (2001) [Per J. Mendoza, Second Division], as cited in People v. Orteza, 555 Phil. 700, 708 (2007) [Per J.
Tinga, Second Division].
8 576 Phil.576 (2008) [Per J. Tinga, Second Division].
9 Id. at 588-589.
17 | S P L : F e b r u a r y 8 , 2 0 1 9 C A S E S
10 741 Phil. 8 (2014) [Per J. Leonen, Third Division].
35 TSN dated June 2, 2011, pp. 28-29.
11 Id. at 93.
36 639 Phil. 134, 144 (2010) [Per J. Mendoza, Second Division].
12 633 Phil. 393 (2010) [Per J. Perez, Second Division].
37 People v. Mendoza, 736 Phil. 749 (2014) [Per J. Bersamin, First Division].
13 Id. at 403.
38 Id. at 764.
14 624 Phil. 289 (2010) [Per J. Brion, Second Division].
39 Id.
15 Id. at 311.
40Ponencia, p. 3.
16 Id.
41 Id.; TSN dated June 2, 2011, p. 8. In Officer Orellan's testimony, he stated that aside from himself, the buy-bust team was composed of
17 People v. Navarrete, 665 Phil. 738, 749 (2011) [Per J. Carpio Morales, Third Division]. See also People v. Ulat, 674 Phil. 484, 500 (2011) "Regional Director Layese, Deputy Director Atila, ... IO1 Carin, IO2 Alfaro, IOl Genita , IO1 Avila, IO2 Orcales, IA2 Pica , IO1 Cardona[.]"
[Per J. Leonardo-De Castro, First Division].
42 Id.
18People v. Navarrete, 665 Phil.738, 748-749 (2011) [Per J. Carpio Morales, Third Division].
43 Id.
19 588 Phil. 95 (2008) [Per J. Tinga, Second Division].
44 TSN dated June 2, 2011, pp. 36-37.
20 Id. at 405.
45 TSN dated August 5, 20ll, p.l6.
21 Id at 403-406.
46 Ponencia, p. 14.
22 This is not entirely novel. The Implementing Rules and Regulations of Republic Act No. 9165 already I stated it. Nevertheless, even if it
has been previously stated elsewhere, it now takes on a greater significance . It is no longer expressed merely in an administrative rule, but 47 Id.
in a statute.
48 Id.
23 778 Phil. 60 (2016) [Per J. Leonen, Second Division].
49 Id.
24 Id. at 475.
50 TSN dated August 5, 2011, pp. 14-15.
25 The buy-bust operation was conducted in 2010.
51 RTC records (Crim. Case No. 2010-1073), p. 5, Affidavit of Arresting Officer.
26 TSN dated June 2, 2011, pp. 17-18.
52 Ponencia, p. 3.
27 TSN dated July 22, 2011, pp. 10-12.
53 J. Caguioa's Reflections, p. 2.
28 TSN dated August 5, 20ll, p.l3.

29 RTC records (Crim. Case No. 2010-1073), p. 5, Affidavit of Arresting Officer.

30 TSN dated June 2, 2011, pp. 21-30. SEPARATE CONCURRING OPINION

31 TSN dated July 22, 2011, pp. 10-l2. CAGUIOA, J.:

32 TSN dated August 5, 2011, p. 13.

33 RTC records (Crim. Case No. 2010-1073), p. 18, and RTC records (Crim. Case No. 2010-1074), p. 16. I concur.

34 TSN dated August 5, 2011, p. 17.

18 | S P L : F e b r u a r y 8 , 2 0 1 9 C A S E S
I agree with the ponencia that accused-appellant Romy Lim y Miranda (Lim) should be acquitted for failure of the prosecution to establish
an unbroken link in the chain of custody of the dangerous drugs supposedly seized from him.
The facts are simple:
On October 19, 2010, at around 8:00 p.m., Intelligence Officer 1 Albert Orellan (IO1 Orellan) and his team were at the Regional Office of the
Philippine Drug Enforcement Agency (PDEA) when they received information from a confidential informant (CI) that Lim had engaged in the
sale of prohibited drugs in his house at Zone 7, Cabina, Bonbon, Cagayan de Oro City. The team immediately prepared to conduct a buy-
bust operation and coordinated with the nearest police station. They then left to conduct the buy-bust operation and reached the target
area at around 10:00 p.m., or two hours after they received the information from the CI.
Upon reaching the target area, the poseur-buyer and the CI knocked at the door of Lim's house. Eldie Gorres (Gorres), Lim's stepson, came
out and invited them to enter. Inside the house, Lim was sitting on the sofa while watching the television while the supposed sale of shabu
happened between Gorres and the poseur-buyer. After the supposed consummation of the sale, the police officers barged into the house
and arrested Lim and Gorres. The two were then prosecuted for violation of Sections 5 and 11, Article II of Republic Act No. (R.A.) 9165.
At the outset, it is important to stress that jurisprudence is well-settled that in all prosecutions for violation ofR.A. 9165, the following
elements must be proven beyond reasonable doubt: (1) proof that the transaction took place; and (2) presentation in court of the corpus
delicti or the illicit drug as evidence. The existence of dangerous drugs is a condition sine qua non for conviction for the illegal sale and
possession of dangerous drugs, they being the very corpus delicti of the crimes.1 What is material is the proof that the transaction or sale
transpired, coupled with the presentation in court of the corpus delicti.2 Corpus delicti is the body or substance of the crime, and establishes
the fact that a crime has been actually committed.3
In dangerous drugs cases, it is essential in establishing the corpus delicti that the procedure provided in Section 21 of R.A. 9165 is followed.
The said section provides:
SEC. 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled
Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. - The PDEA shall take charge and have
custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as
instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following
manner:
(1) 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;
(2) Within twenty-four (24) hours upon confiscation/seizure of dangerous drugs, plant sources of dangerous drugs, controlled precursors
and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment, the same shall be submitted to the PDEA
Forensic Laboratory for a qualitative and quantitative examination;
(3) A certification of the forensic laboratory examination results, which shall be done under oath by the forensic laboratory examiner, shall
be issued within twenty-four (24) hours after the receipt of the subject item/s: Provided, That when the volume of the dangerous drugs,
plant sources of dangerous drugs, and controlled precursors and essential chemicals does not allow the completion of testing within the
time frame, a partial laboratory examination report shall be provisionally issued stating therein the quantities of dangerous drugs still to be
examined by the forensic laboratory: Provided, however, That a final certification shall be issued on the completed forensic laboratory
examination on the same within the next twenty-four (24) hours[.]
Furthermore, Section 21(a), Article II of the Implementing Rules and Regulations of R.A. 9165 (IRR) filled in the details as to where the
physical inventory and photographing of the seized items could be done: i.e., at the place of seizure, at the nearest police station or at the
nearest office of the apprehending officer/team, thus:
SECTION 21. Custody and Disposition of Confiscated, Seized and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs,
Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. - The PDEA shall take charge and
have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as
instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following
manner:
(a)
The apprehending officer/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: Provided, that the physical inventory and photograph
shall be conducted at the place where the search warrant is served; or at the nearest police station or at the nearest office of the
apprehending officer/team, whichever is practicable, in case of warrantless seizures; Provided, 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[.] (Emphasis supplied)
Section 21 plainly requires the apprehending team to conduct a physical inventory of the seized items and photograph the same immediately
after seizure and confiscation in the presence of the accused, with (l) an elected public official, (2) a representative of the Department of
Justice (DOJ), and (3) a representative of the media, all of whom shall be required to sign the copies of the inventory and be given a copy
thereof.
In buy-bust situations, or warrantless arrests, the physical inventory and photographing are allowed to be done at the nearest police station
or at the nearest office of the apprehending officer/team, whichever is practicable. But even in these alternative places, such inventory and
photographing are still required to be done in the presence of the accused and the aforementioned witnesses.
I submit that the phrase "immediately after seizure and confiscation" means that the physical inventory and photographing of the drugs
were intended by the law to be made immediately after, or at the place of apprehension. And only if this is not practicable can the inventory
and photographing then be done as soon as the apprehending team reaches the nearest police station or the nearest office. There can be
no other meaning to the plain import of this requirement. By the same token, however, this also means that the required witnesses should
already be physically present at the time of apprehension - a requirement that can easily be complied with by the buy-bust team considering
that the buy-bust operation is, by its nature, a planned activity. Simply put, the apprehending team has enough time and opportunity to
bring with them said witnesses.
In other words, while the physical inventory and photographing are allowed to be done "at the nearest police station or at the nearest office
of the apprehending officer/team, whichever is practicable, in case of warrantless seizures," this does not dispense with the requirement
of having all the required witnesses to be physically present at the time or near the place of apprehension. The reason is simple, it is at the
time of arrest - or at the time of the drugs' "seizure and confiscation" - that the presence of the three witnesses is most needed, as it is their
presence at the time of seizure and confiscation that would insulate against the police practice of planting evidence.
The presence of the witnesses at the place and time of arrest and seizure is required because " [w]hile buy-bust operations deserve judicial
sanction if carried out with due regard for constitutional and legal safeguards, it is well to recall that x x x by the very nature of anti-narcotics
operations, the need for entrapment procedures x x x the ease with which sticks of marijuana or grams of heroin can be planted in pockets
of or hands of unsuspecting provincial hicks, and the secrecy that inevitably shrouds all drug deals, the possibility of abuse is great."4
In this connection, it is well to point out that recent jurisprudence is clear that the procedure enshrined in Section 21 of R.A. 9165 is a matter
of substantive law, and cannot be brushed aside as a simple procedural technicality; or worse, ignored as an impediment to the conviction
of illegal drug suspects.5 For indeed, however noble the purpose or necessary the exigencies of our campaign against illegal drugs may be,
it is still a governmental action that must always be executed within the boundaries of law.
Using the language of the Court in People v. Mendoza,6 without the insulating presence of the representative from the media or the DOJ
and any elected public official during the seizure and marking of the drugs, the evils of switching, "planting" or contamination of the evidence
that had tainted the buy-busts conducted under the regime of R.A. 6425 (Dangerous Drugs Act of 1972) again reared their ugly heads as to
negate the integrity and credibility of the seizure and confiscation of the subject sachets that were evidence of the corpus delicti, and thus
adversely affected the trustworthiness of the incrimination of the accused.7
19 | S P L : F e b r u a r y 8 , 2 0 1 9 C A S E S
Thus, it is compliance with this most fhndamental requirement - the presence of the "insulating" witnesses - that the pernicious practice of
planting of evidence is greatly minimized if not foreclosed altogether. Stated otherwise, this is the first and foremost requirement provided
by Section 21 to ensure the preservation of the "integrity and evidentiary value of the seized drugs" in a buy-bust situation whose nature,
as already explained, is that it is a planned operation.
To reiterate, the presence of the three witnesses at the time of seizure and confiscation of the drugs must be secured and complied with at
the time of the warrantless arrest; such that they are required to be at or near the intended place of the arrest so that they can be ready to
witness the inventory and photographing of the seized and confiscated drugs "immediately after seizure and confiscation."
The practice of police operatives of not bringing to the intended place of arrest the representative of the DOJ, the media representative,
and the elected public official, when they could easily do so - and "calling them in" to the police station to witness the inventory and
photographing of the drugs only after the buy-bust operation has already been finished - does not achieve the purpose of the law in having
these witnesses prevent or insulate against the planting of drugs. I thuencourage the Court to send a strong message that faithful compliance
with this most important requirement bringing them to a place near the intended place of arrest - should be strictly complied with.
In this regard, showing how the drugs transferred hands from the accused to the poseur-buyer, from the poseur-buyer to the investigator
and from the investigator to the crime laboratory - much like in this case - without showing compliance with the inventory and
photographing as witnessed by the three required witnesses is not enough to ensure the integrity of the seized drugs. Indeed, without such
witnessing, the drugs could already have been planted - an d the marking, and the transfer from one to another (as usually testified to by
the apprehending officers) only proves the chain of custody of planted drugs.
I am not unaware that there is now a saving clause in Section 21, introduced by R.A. 10640, which is the portion that states: "noncompliance
of 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 and custody over said items."
The requirements referred to that need not be complied with if there are justifiable grounds are only in respect of the conduct of the
physical inventory and the photographing in the presence of the accused, with an elected public official, and a representative of the DOJ,
and the media who shall be required to sign the copies of the inventory and be given a copy thereof.
Again, the plain language of this last proviso in Section 21 of R.A. 10640 simply means that the failure of the apprehending officer/team to
physically inventory and photograph the drugs at the place of arrest and/or to have the DOJ or media representative and elected public
official witness the same can be excused (i.e., these shall not render void and invalid such seizures and custody over said items) so long as
there are justifiable grounds for not complying with these requirements and "as long as the integrity and the evidentiary value of the seized
items are properly preserved by the apprehending officer/team."
Thus, it has been held that, as a general rule, strict compliance with the requirements of Section 21 is mandatory.8 The Court may allow
noncompliance with the requirement only in exceptional cases,9 where the following requisites are present: (1) the existence of justifiable
grounds to allow departure from the rule on strict compliance; and (2) the integrity and the evidentiary value of the seized items are properly
preserved by the apprehending team.10 If these two elements are present, the seizures and custody over the confiscated items shall not
be rendered void and invalid.
It has also been emphasized that for the saving clause to be triggered, the prosecution must first recognize any lapses on the part of the
police officers and justify the same.11 Breaches of the procedure contained in Section 21 committed by the police officers, left
unacknowledged and unexplained by the State, militate against a finding of guilt beyond reasonable doubt against the accused as the
integrity and evidentiary value of the corpus delicti had been compromised.12
In cases involving procedural lapses of the police officers, proving the identity of the corpus delicti despite noncompliance with Section 21
requires the saving clause to be successfully triggered.
For this purpose, the prosecution must satisfy its two-pronged requirement: first, credibly justify the noncompliance, and second, show that
the integrity and evidentiary value of the seized item were properly preserved.13 This interpretation on when the saving clause is triggered
is not novel. In Valencia v. People,14 the Court held:
Although the Court has ruled that non-compliance with the directives of Section 21, Article II of R.A. No. 9165 is not necessarily fatal to the
prosecution's case, the prosecution must still prove that (a) there is a justifiable ground for the non-compliance, and (b) the integrity and
evidentiary value of the seized items were properly preserved. Further, the non-compliance with the procedures must be justified by the
State's agents themselves. The arresting officers are under obligation, should they be unable to comply with the procedures laid down under
Section 21, Article II of R.A. No. 9165, to explain why the procedure was not followed and prove that the reason provided a justifiable
ground. Otherwise, the requisites under the law would merely be fancy ornaments that may or may not be disregarded by the arresting
officers at their own convenience.15 (Citations omitted)
In the case of People v. Barte,16 the Court pronounced that the State has the duty to credibly explain the noncompliance of the provisions
of Section 21:
When there is failure to comply with the requirements for proving the chain of custody in the confiscation of contraband in a drug buy-bust
operation, the State has the obligation to credibly explain such noncompliance; otherwise, the proof of the corpus delicti is doubtful, and
the accused should be acquitted for failure to establish his guilt beyond reasonable doubt.17
In People v. Ismael,18 the accused was acquitted because "the prosecution failed to: (1) overcome the presumption of innocence which
appellant enjoys; (2) prove the corpus delicti of the crime; (3) establish an unbroken chain of custody of the seized drugs; and (4) offer any
explanation why the provisions of Section 21, RA 9165 were not complied with."19
Likewise, in People v. Reyes20:
Under the last paragraph of Section 21(a), Article II of the IRR of R.A. No. 9165, a saving mechanism has been provided to ensure that not
every case of noncompliance with the procedures for the preservation of the chain of custody will irretrievably prejudice the Prosecution's
case against the accused. To warrant the application of this saving mechanism, however, the Prosecution must recognize the lapse or lapses,
and justify or explain them. Such justification or explanation would be the basis for applying the saving mechanism. Yet, the Prosecution did
not concede such lapses, and did not even tender any token justification or explanation for them. The failure to justify or explain
underscored the doubt and suspicion about the integrity of the evidence of the corpus delicti. With the chain of custody having been
compromised, the accused deserves acquittal. x x x21 (Emphasis supplied; citations omitted)
Conformably with these disquisitions, I thus express my full support over the institution by the ponencia of the following mandatory policies
before a case for violation of R.A. 9165, as amended by R.A. 10640, may be filed:
In the sworn statements/affidavits, the apprehending/seizing officers must state their compliance with the requirements of Section 21(1)
of R.A. No. 9165, as amended, and its IRR.
In case of non-observance of the provision, the apprehending/seizing officers must state the justification or explanation therefor as well as
the steps they have taken in order to preserve the integrity and evidentiary value of the seized/confiscated items.
If there is no justification or explanation expressly declared in the sworn statements or affidavits, the investigating fiscal must not
immediately file the case before the court. Instead, he or she must refer the case for further preliminary investigation in order to determine
the (non) existence of probable cause.
If the investigating fiscal filed the case despite such absence, the court may exercise its discretion to either refuse to issue a commitment
order (or warrant of arrest) or dismiss the case outright for lack of probable cause in accordance with Section 5, Rule 112, Rules of Court.22
To my mind, the Court, through the said policies, actually achieves two laudable objectives, namely: (1) ensuring that the cases filed before
the courts are not poorly prepared, thus ultimately leading to the decongestion of court dockets, and (2) further protection of the citizens
from fabricated suits.
In connection with the case at hand, I therefore fully concur with the ponencia as it acquits Lim of the crime charged. In particular, I wholly
agree with the ponencia as it holds that the explanations put forth by the apprehending team -that it was late at night, it was raining, and
that there were simply no available elected official and representatives from the media and DOJ despite their unsubstantiated claim that
they exerted efforts to contact them - are simply unacceptable.
As the ponencia itself pointed out, "[i]t must be alleged and proved that the presence of the three witnesses to the physical inventory and
photograph of the illegal drug seized was not obtained due to reason/s such as:"23
(1) their attendance was impossible because the place of arrest was a remote area; (2) their safety during the inventory and photograph of
the seized drugs was threatened by an immediate retaliatory action of the accused or any person/s acting for and in his/her behalf; (3) the
elected official themselves were involved in the punishable acts sought to be apprehended; (4) earnest efforts to secure the presence of a
20 | S P L : F e b r u a r y 8 , 2 0 1 9 C A S E S
DOJ or media representative and an elected public official within the period required under Article 125 of the Revised Penal Code prove
futile through no fault of the arresting officers, who face the threat of being charged with arbitrary detention; or (5) time constraints nd
urgency of the anti-drug operations, which often rely on tips of confidential assets, prevented the law enforcers from obtaining the presence
of the required witnesses even before the offenders could escape.24
Verily, none of the above reasons - or any such justifications similar to the aforementioned - wa s present in this case.
It is important to note that (1) the report of the CI came in around 8:00 p.m.; (2) the police officers immediately arranged a buy-bust
operation; and (3) they arrived at Lim's house at about 15 minutes before 10:00 p.m. While the vigor exerted by the police officers was
commendable, it must be pointed out that Lim was supposedly selling drugs at his house. In fact, Lim "was sitting on the sofa while watching
the television" when the CI and the poseur-buyer arrived. There was thus no issue with regard to urgency and time constraints, as Lim was
not a flight risk nor was his supposed commission of the crime bound to a limited period oftime. To reiterate, Lim was supposedly
continuously committing the crime at his own residence. The police officers could have, for instance, proceeded with the operation the
following day when the presence of the three witnesses - as required by law - could have been obtained.
At this point, it is imperative to discuss that the presumption of regularity in the performance of duties by the police officers could not justify
the police officers' noncompliance with the requirements of law. Verily, the said presumption could not supply the acts which were not
done by the police officers. The presumption of regularity in the performance of duties is simply that - a presumption - which can be
overturned if evidence is presented to prove that the public officers were not properly performing their duty or they were inspired by
improper motive.25 It is not uncommon, therefore that cases will rely on the presumption when there is no showing of improper motive
on the part of the police.
To my mind, however, notwithstanding a lack of showing of improper motive, the presumption of regularity of performance of official duty
stands only when no reason exists in the records by which to doubt the regularity of the performance of official duty.26 As applied to drugs
cases, I believe that the presumption shall only arise when there is a showing that the apprehending officer/team followed the requirements
of Section 21, or when the saving clause is successfully triggered.
Judicial reliance on the presumption of regularity in the performance of official duty despite the lapses in the procedures undertaken by the
agents of the law is fundamentally unsound because the lapses themselves are affirmative proofs ofirregularity.27 In People v. Enriquez,28
the Court held:
x x x [A]ny divergence from the prescribed procedure must be justified and should not affect the integrity and evidentiary value of the
confiscated contraband. Absent any of the said conditions, the non- compliance is an irregularity, a red flag that casts reasonable doubt on
the identity of the corpus delicti.29 (Emphasis supplied )
Thus, in case of noncompliance with Section 21, the Court cannot rely on the presumption of regularity to say that the guilt of the accused
was established beyond reasonable doubt. The discussion in People v. Sanchez30 is instructive:
The court apparently banked also on the presumption of regularity in the performance that a police officer like SPO2 Sevilla enjoys in the
absence of any taint of irregularity and of ill motive that would induce him to falsify his testimony. Admittedly, the defense did not adduce
any evidence showing that SPO2 Sevilla had any motive to falsify. The regularity of the performance of his duties, however, leaves much to
be desired given the lapses in his handling of the allegedly confiscated drugs as heretofore shown.
An effect of this lapse, as we held in Lopez v. People, is to negate the presumption that official duties have been regularly performed by the
police officers. Any taint of irregularity affects the whole performance and should make the presumption unavailable. There can be no ifs
and buts regarding this consequence considering the effect of the evidentiary presumption of regularity on the constitutional presumption
of innocence.31 (Citation omitted)
What further militates against according the police the presumption of regularity is the fact that even the pertinent internal guidelines of
the police (some as early as 1999, predating R.A. 9165) require photographing and inventory during the conduct of a buy-bust operation.
Under the 1999 Philippine National Police Drug Enforcement Manual32 (PNPDEM), the conduct of buy-bust operations requires the
following:
ANTI-DRUG OPERATIONAL PROCEDURES
xxxx
V. SPECIFIC RULES
x x xx
B. Conduct of Operation: (As far as practicable, all operations must be officer led )
1. Buy-Bust Operation in the conduct ofbuy-bust operation, the following are the procedures to be observed:
a. Record time of jump-off in unit's logbook;
b. Alertness and security shall at all times be observed[;]
c. Actual and timely coordination with the nearest PNP territorial units must be made;
d. Area security and dragnet or pursuit operation must be provided[;]
e. Use of necessary and reasonable force only in case of suspect's resistance:
f. If buy-bust money is dusted with ultra violet powder make sure that suspect ge[t] hold of the same and his palm/s contaminated with the
powder before giving the pre-arranged signal and arresting the suspects;
g. In pre-positioning of the team members, the designated arresting elements must clearly and actually observe the negotiation/transaction
between suspect and the poseur-buyer;
h. Arrest suspect in a defensive manner anticipating possible resistance with the use of deadly weapons which maybe concealed in his body,
vehicle or in a place within arms['] reach;
i. After lawful arrest, search the body and vehicle, if any, of the suspect for other concealed evidence or deadly weapon;
j. Appraise suspect of his constitutional rights loudly and clearly after having been secured with handcuffs;
k. Take actual inventorv of the seized evidence by means of weighing and/or physical counting, as the case may be;
I. Prepare a detailed receipt of the confiscated evidence for issuance to the possessor (suspect) thereof;
m. The seizing officer (normally the poseur-buyer) and the evidence custodian must mark the evidence with their initials and also indicate
the date, time and place the evidence was confiscated/seized;
n. Take photographs of the evidence while in the process of taking the inventory, especially during weighing, and if possible under existing
conditions, the registered weight of the evidence on the scale must be focused by the camera; and
o. Only the evidence custodian shall secure and preserve the evidence in an evidence bag or in appropriate container and thereafter deliver
the same to the PNP CLG for laboratory examination. (Emphasis and underscoring supplied)
Chapter 4, Rule 37 of the 2013 Revised Philippine National Police (PNP) Operational Procedures33 applicable during the pre-amendment of
Section 21 provides:
37.3 Handling, Custody and Disposition of Evidence
In the handling, custody and disposition of evidence, the provision of Section 21, RA 9165 and its IRR shall be strictly observed.
The apprehending officer/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 personls from whom such items were confiscated and/or seized,
21 | S P L : F e b r u a r y 8 , 2 0 1 9 C A S E S
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.
The physical inventory and photograph shall be conducted at the place where the search warrant is served; or at the nearest police station
or at the nearest office of the apprehending officer/team, whichever is practicable, in case of warrantless seizures; Provided, 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.
Photographs of the pieces of evidence must be taken upon discovery without moving or altering its position in the place where it was
situated, kept or hidden, including the process of recording the inventory and the weighing of dangerous drugs, and if possible under existing
conditions, with the registered weight of the evidence on the scale focused by the camera, in the presence of persons required, as provided
under Section 21, Art II, RA 9165. (Emphasis and underscoring supplied)
Further, the Revised PNP Manual on Anti-Illegal Drugs Operation and Investigation34 (2014 AIDSOTF Manual) similarly requires strict
compliance with the provisions:
Section 2-6 Handling, Custody and Disposition of Drug and Non-Drug Evidence
2.33 During handling, custody and disposition of evidence, provisions of Section 21, RA 9165 and its IRR as amended by RA 10640 shall be
strictly observed.
2.34 Photographs of pieces of evidence must be taken immediately upon discovery of such, without moving or altering its original position
including the process of recording the inventory and the weighing of illegal drugs in the presence of required witnesses, as stipulated in
Section 21, Art II, RA 9165, as amended by RA 10640. xxxx
a.
Drug Evidence.
1)
Upon seizure or confiscation of illegal drugs or CPECs, laboratory equipment, apparatus and paraphernalia, the operating Unit's Seizing
Officer/Inventory Officer must conduct the physical inventory, markings and photograph the same in the place of operation in the presence
of:
(a)
The suspect/s or the person/s from whom such items were confiscated and/or seized or his/her representative or counsel;
(b)
With an elected Public Official; and
(c)
Any representatives from the Department of Justice or Media who shall affix their signatures and who shall be given copies of the inventory.
2)
For seized or recovered drugs covered by Search Warrants, the inventory must be conducted in the place where the Search Warrant was
served.
3)
For warrantless seizures like buy-bust operations, inventory and taking of photographs should be done at the nearest Police Station or Office
of the apprehending Officer or Team.
4)
If procedures during the inventory were not properly observed, as stipulated in Section 21, RA 9165 as amended by RA 10640, law enforcers
must make a justification in writing for non-observance of the same to prove that the integrity and evidentiary value of the seized items are
not tainted. (Emphasis and underscoring supplied)
Under Sections Section 3-1(3.1)(b)(6) and (3.1)(b)(7) of the 2014 AIDSOTF Manual, strict compliance is similarly demanded from police
officers, thus:
6)
During the actual physical inventory, the Seizing Officer must mark, and photograph the seized/recovered pieces of evidence in accordance
with the provision of Section 21 of RA 9165 as amended by RA 10640 in the presence of:
(a)
The suspect or person/s from whom such items were confiscated and/or seized or his/her representative or counsel;
(b)
With an elected Public Official; and
(c)
Any representatives from the Department of Justice or Media who shall affix their signatures and who shall be given copies of the inventory.
(Note: The presence of the above-mentioned witnesses shall only be required during the physical inventory of the confiscated
items. If in case, witnesses mentioned above are absent, same should be recorded in the report.
7)
In warrantless searches and seizures like buy-bust operations, the inventory and taking of photographs shall be made at the nearest Police
Station or Office of the Apprehending Officer or Team whichever is practicable, however, concerned police personnel must execute a written
explanation to justify, non-compliance of the prescribed rules on inventory under Section 21, RA 9165 as amended by RA 10640. x x x
(Emphasis and underscoring supplied )
The Court has ruled in People v. Zheng Bai Hui 35 that it will not presume to set an a priori basis of what detailed acts police authorities
might credibly undertake and carry out in their entrapment operations. However, given the police operational procedures, it strains
credulity why the police officers could not have (1) ensured the presence ofthe required witnesses, or at the very least (2) marked,
photographed, and physically inventoried the seized items pursuant to the provisions of their own operational procedures.36
To my mind, therefore, while no a priori basis for the conduct of a valid buy-bust operation is set, the noncompliance of the police with
their own procedures implicates (1) the operation of the saving clause and (2) the appreciation of the presumption of regularity.
With this in mind, anything short of observance and compliance by the PDEA and police authorities with the positive requirements of the
law, and even with their own internal procedures, means that they have not performed their duties. If they did, then it would not be difficult
for the prosecution to acknowledge the lapses and justify the same - it needs merely to present the justification in writing required to be
executed by the police under Sections 2-6(2.33)(a)(4) and 3-1(3.1)(b)(7) of the 2014 AIDSOTF Manual. After which, the court can proceed
to determine whether the prosecution had credibly explained the noncompliance so as to comply with the first prong of the saving
mechanism. I submit that without a justification being offered, the finding that the integrity and probative weight of the seized items are
preserved can only satisfy the second prong and will not trigger the saving clause.
It then becomes error to fill the lacuna in the prosecution's evidence with the presumption of regularity, when there clearly is no established
fact from which the presumption may arise. As such, the evidence of the State has not overturned the presumption of innocence in favor
of the accused.37
Based on these premises, I vote to GRANT the instant appeal and REVERSE and SET ASIDE the Decision of the Court of Appeals dated
February 23, 2017 finding accused-appellant Romy Lim y Miranda guilty beyond reasonable doubt of violating Sections 5 and 11, Article II
of Republic Act No. 9165.
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Endnotes: 22 Ponencia, pp. 15-16.

1 People v. Magat, 588 Phil.395, 402 (2008). 23 Id. at 13; emphasis omitted.

2 People v. Dumangay, 581 Phil.730, 739 (2008). 24 Id., citing People v. Sipin, G.R. No. 224290, June 11, 2018, p. 17.

3 Id. 25 RULES OF COURT, Rule 131, Sec. 3(m) provides: "That official duty has been regularly performed."

4 People v. Santos, Jr., 562 Phil. 458, 471 (2007). 26 People v. Mendoza, supra note 6, at 770.

5 People v. Crispo, G.R. No. 230065, March 14, 2018, p. 11; People v. Ana, G.R. No. 230070, March 14, 2018, p. 7; People v. Lumaya, G.R. 27 Id.
No. 231983, March 7, 2018, p. 12; People v. Ramos, G.R. No. 233744, February 28, 2018, p. 9; People v. Manansala, G.R. No. 229092,
February 21, 2018, p. 9; People v. Guieb, G.R. No. 233100, February 14,2018, p. 9; People v. Paz, G.R. No. 229512, January 31,2018, p. 11; 28 718 Phil. 352 (2013).
People v. Miranda, G.R. No. 229671, January 31,2018, p. 11; People v. Jugo, G.R. No. 231792, January 29, 2018, p. 9; People v. Mamangon,
G.R. No. 229102, January 29, 2018, p. 9; People v. Calibod, G.R. No. 230230, November 20, 2017, p. 9; People v. Ching, G.R. No. 223556, 29 Id. at 366.
October 9, 2017, p. 10; People v. Geronimo, G.R. No. 225500, September 11,2017, p. 9; People v. Macapundag, G.R. No. 225965, March 13,
2017, 820 SCRA 204, 215; Gamboa v. People, 799 Phil. 584, 597 (2016); see also People v. Dela Victoria, G.R. No. 233325, April 16, 2018, p. 30 590 Phil.214 (2008).
10; People v. Bintaib, G.R. No. 217805, April 2, 2018; People v. Segundo, G.R. No. 205614, July 26, 2017, p. 17.
31 Id. at 242 243.
6 736 Phil. 749 (2014).
32 PNPM-D-0-3-1-99 [NG], the precursor anti-illegal drug operations manual prior to the 2010 and 2014 AIDSOTF Manual.
7 Id. at 764.
33 PNP Handbook, PNPM-00-DS-3-2-13, December 2013.
8 See People v. Cayas, 789 Phil. 70,79 (2016); People v. Havana, 776 Phil. 462,475 (2016).
34 PNP Manual, PNPM-D-0-2-14 (DO), September 20l4.
9 See id. at 80.
35 393 Phil. 68, 133 (2000).
10 R.A. 9165, Sec. 21(1), as amended by R.A. 10640.
36 Note also that the same PNPDEM lays down the guidelines for preparation in buy-bust operations, including the preparation of inventory
11 See People v. Alagarme, 754 Phil. 449,461 (2015). and photographing equipment, save only from the a priori basis consideration above.

12 See People v. Sumili, 753 Phil. 343, 352 (2015). 37 See People v. Barte, supra note 16, at 22.

13 See People v. Capuno, 655 Phil.226, 240-241 (2011); People v. Garcia, 599 Phil.416, 432-433 (2009); People v. Reyes, G.R. No. 199271, 37 See People v. Barte, supra note 16, at 22.
October 19, 2016, 806 SCRA 513, 536-537.

14 725 Phil.268 (2014 ),

15 Id. at 286.

16 G.R. No. 179749, March 1, 2017, 819 SCRA 10.

17 Id. at 13.

18 G.R. No. 208093, February 20, 2017, 818 SCRA 122.

19 Id. at 142; underscoring supplied.

20 Supra note 13.

21 Id. at 536.

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