EN BANC

[ G.R. No. 192565, February 28, 2012 ]

UNION BANK OF THE, PHILIPPINES AND DESI TOMAS, PETITIONERS, VS. PEOPLE OF THE
PHILIPPINES, RESPONDENT.

DECISION

BRION, J.:

We review in this Rule 45 petition, the decision [1] of the Regional Trial Court, Branch 65, Makati City
(RTC-Makati City) in Civil Case No. 09-1038. The petition seeks to reverse and set aside the RTC-
Makati City decision dismissing the petition for certiorari of petitioners Union Bank of the Philippines
(Union Bank) and Desi Tomas (collectively, the petitioners).  The RTC found that the Metropolitan Trial
Court, Branch 63, Makati City (MeTC-Makati City) did not commit any grave abuse of discretion in
denying the motion to quash the information for perjury filed by Tomas.

The Antecedents

Tomas was charged in court for perjury under Article 183 of the Revised Penal Code (RPC) for making
a false narration in a Certificate against Forum Shopping. The Information against her reads:

That on or about the 13th day of March 2000 in the City of Makati, Metro Manila, Philippines and within
the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully,
unlawfully and feloniously make untruthful statements under oath upon a material matter before a
competent person authorized to administer oath which the law requires to wit: said accused stated in
the Verification/Certification/Affidavit of merit of a complaint for sum of money with prayer for a writ of
replevin docketed as [Civil] Case No. 342-00 of the Metropolitan Trial Court[,] Pasay City, that the
Union Bank of the Philippines has not commenced any other action or proceeding involving the same
issues in another tribunal or agency, accused knowing well that said material statement was false
thereby making a willful and deliberate assertion of falsehood.[2]

The accusation stemmed from petitioner Union Bank’s two (2) complaints for sum of money with
prayer for a writ of replevin against the spouses Eddie and Eliza Tamondong and a John Doe. The first
complaint, docketed as Civil Case No. 98-0717, was filed before the RTC, Branch 109, Pasay City on
April 13, 1998. The second complaint, docketed as Civil Case No. 342-000, was filed on March 15,
2000 and raffled to the MeTC, Branch 47, Pasay City.  Both complaints showed that Tomas executed
and signed the Certification against Forum Shopping. Accordingly, she was charged of deliberately
violating Article 183 of the RPC by falsely declaring under oath in the Certificate against Forum
Shopping in the second complaint that she did not commence any other action or proceeding involving
the same issue in another tribunal or agency.

Tomas filed a Motion to Quash, [3]  citing two grounds. First, she argued that the venue was improperly
laid since it is the Pasay City court (where the Certificate against Forum Shopping was submitted and
used) and not the MeTC-Makati City (where the Certificate against Forum Shopping was subscribed)
that has jurisdiction over the perjury case. Second, she argued that the facts charged do not constitute
an offense because: (a)  the  third element of perjury – the willful and deliberate assertion of falsehood
– was not alleged with particularity without specifying what the other action or proceeding commenced
involving the same issues in another tribunal or agency; (b) there was no other action or proceeding
pending in another court when the second complaint was filed; and (c) she was charged with perjury
by giving false testimony while the allegations in the Information make out perjury by making a false
affidavit.

The MeTC-Makati City denied the Motion to Quash, ruling that it has jurisdiction over the case since the

1
Certificate against Forum Shopping was notarized in Makati City. [4] The MeTC-Makati City also ruled
that the allegations in the Information sufficiently charged Tomas with perjury. [5] The MeTC-Makati City
subsequently denied Tomas’ motion for reconsideration. [6]

The petitioners filed a petition for certiorari before the RTC-Makati City to annul and set aside the
MeTC-Makati City orders on the ground of grave abuse of discretion. The petitioners anchored their
petition on the rulings in United States v. Canet[7] and Ilusorio v. Bildner[8] which ruled that venue and
jurisdiction should be in the place where the false document was presented.

The Assailed RTC Decision

In dismissing the petition for certiorari, the RTC-Makati City held:

[I]nsofar as the petitioner’s stance is concerned[,] the more recent case of [Sy Tiong Shiou v. Sy] (GR
Nos. 174168 & 179438, March 30, 2009) however, reaffirms what has been the long standing view on
the venue with respect to perjury cases. In this particular case[,] the high court reiterated the rule that
the criminal action shall be instituted and tried in the court of the municipality or territory where the
offense was committed, or where any of its essential ingredients occurred. It went on to declare that
since the subject document[,] the execution of which was the subject of the charge[,] was subscribed
and sworn to in Manila[,] then the court of the said territorial jurisdiction was the proper venue of the
criminal action[.]

xxxx

x x x Given the present state of jurisprudence on the matter, it is not amiss to state that the city court
of Makati City has jurisdiction to try and decide the case for perjury inasmuch as the gist of the
complaint itself which constitute[s] the charge against the petitioner dwells solely on the act
of subscribing to a false certification. On the other hand, the charge against the accused in the
case of Ilusorio v. Bildner, et al., based on the complaint-affidavits therein[,] was not simply the
execution of the questioned documents but rather the introduction of the false evidence through the
subject documents before the court of Makati City.[9] (emphasis ours)

The RTC-Makati City ruled that the MeTC-Makati City did not commit grave abuse of discretion since
the order denying the Motion to Quash was based on jurisprudence later than Ilusorio. The RTC-Makati
City also observed that the facts in Ilusorio are different from the facts of the present case. Lastly, the
RTC-Makati City ruled that the Rule 65 petition was improper since the petitioners can later appeal the
decision in the principal case. The RTC-Makati City subsequently denied the petitioner’s motion for
reconsideration.[10]

The Petition

The petitioners pray that we reverse the RTC-Makati City decision and quash the Information for
perjury against Tomas. The petitioners contend that the Ilusorio ruling is more applicable to the
present facts than our ruling in Sy Tiong Shiou v. Sy Chim. [11]  They argued that the facts
in Ilusorio showed that the filing of the petitions in court containing the false statements was the
essential ingredient  that consummated the perjury.  In Sy Tiong, the perjurious statements were
made in a General Information Sheet (GIS) that was submitted to the Securities and Exchange
Commission (SEC).

Interestingly, Solicitor General Jose Anselmo I. Cadiz shared the petitioners’ view. In his Manifestation
and Motion in lieu of Comment (which we hereby treat as the Comment to the petition), the Solicitor
General also relied on Ilusorio and opined that the lis mota in the crime of perjury is the deliberate or
intentional giving of false evidence in the court where the evidence is material. The Solicitor General
observed that the criminal intent to assert a falsehood under oath only became manifest before the
MeTC-Pasay City.

2
The Issue

The case presents to us the issue of what the proper venue of perjury under Article 183 of the RPC
should be – Makati City, where the Certificate against Forum Shopping was notarized, or Pasay City,
where the Certification was presented to the trial court.

The Court’s Ruling

We deny the petition and hold that the MeTC-Makati City is the proper venue and the proper
court to take cognizance of the perjury case against the petitioners.

Venue of Action and Criminal Jurisdiction

Venue is an essential element of jurisdiction in criminal cases. It determines not only the place where
the criminal action is to be instituted, but also the court that has the jurisdiction to try and hear the
case.  The reason for this rule is two-fold. First, the jurisdiction of trial courts is limited to well-defined
territories such that a trial court can only hear and try cases involving crimes committed within its
territorial jurisdiction.[12] Second, laying the venue in the locus criminis is grounded on the necessity
and justice of having an accused on trial in the municipality of province where witnesses and other
facilities for his defense are available.[13]

Unlike in civil cases, a finding of improper venue in criminal cases carries jurisdictional
consequences. In determining the venue where the criminal action is to be instituted and the court
which has jurisdiction over it, Section 15(a), Rule 110 of the 2000 Revised Rules of Criminal Procedure
provides:

(a)    Subject to existing laws, the criminal action shall be instituted and tried in the court or
municipality or territory where the offense was committed or where any of its essential
ingredients occurred. [emphasis ours]

The above provision should be read in light of Section 10, Rule 110 of the 2000 Revised Rules of
Criminal Procedure which states:

Place of commission of the offense. – The complaint or information is sufficient if it can be understood
from its allegations that the offense was committed or some of its essential ingredients occurred at
some place within the jurisdiction of the court, unless the particular place where it was committed
constitutes an essential element of the offense charged or is necessary for its identification.

Both provisions categorically place the venue and jurisdiction over criminal cases not only in the court
where the offense was committed, but also where any of its essential ingredients took place.  In other
words, the venue of action and of jurisdiction is deemed sufficiently alleged where the Information
states that the offense was committed or some of its essential ingredients occurred at a place within
the territorial jurisdiction of the court.

Information Charging Perjury

Section 5, Rule 7 of the 1997 Rules of Civil Procedure, as amended, contains the requirement for a
Certificate against Forum Shopping. The Certificate against Forum Shopping can be made either by a
statement under oath in the complaint or initiatory pleading asserting a claim or relief; it may also be
in a sworn certification annexed to the complaint or initiatory pleading. In both instances, the affiant is
required to execute a statement under oath before a duly commissioned notary public or any
competent person authorized to administer oath that: (a) he or she has not theretofore commenced
any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency
and, to the best of his or her knowledge, no such other action or claim is pending therein;   (b) if there

3
is such other pending action or claim, a complete statement of the present status thereof; and (c) if he
or she should thereafter learn that the same or similar action or claim has been filed or is pending, he
or she shall report that fact within five days therefrom to the court wherein his or her aforesaid
complaint or initiatory pleading has been filed. In relation to the crime of perjury, the material matter
in a Certificate against Forum Shopping is the truth of the required declarations which is designed to
guard against litigants pursuing simultaneous remedies in different fora.[14]

In this case, Tomas is charged with the crime of perjury under Article 183 of the RPC for making a
false Certificate against Forum Shopping. The elements of perjury under Article 183 are:

(a)  That the accused made a statement under oath or executed an affidavit upon a material matter.

(b)  That the statement or affidavit was made before a competent officer, authorized to receive and
administer oath.

(c)   That in the statement or affidavit, the accused made a willful and deliberate assertion of a
falsehood.

(d)  That the sworn statement or affidavit containing the falsity is required by law or made for a legal
purpose.[15]  (emphasis ours)

Where the jurisdiction of the court is being assailed in a criminal case on the ground of improper
venue, the allegations in the complaint and information must be examined together with Section 15(a),
Rule 110 of the 2000 Revised Rules of Criminal Procedure. On this basis, we find that the allegations in
the Information sufficiently support a finding that the crime of perjury was committed by Tomas within
the territorial jurisdiction of the MeTC-Makati City.

The first element of the crime of perjury, the execution of the subject Certificate against Forum
Shopping was alleged in the Information to have been committed in Makati City. Likewise, the second
and fourth elements, requiring the Certificate against Forum Shopping to be under oath before a
notary public, were also sufficiently alleged in the Information to have been made in Makati City:

That on or about the 13th day of March 2000 in the City of Makati, Metro Manila, Philippines and within
the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully,
unlawfully and feloniously make untruthful statements under oath upon a material matter before a
competent person authorized to administer oath which the law requires to wit: said accused stated in
the Verification/Certification/Affidavit x x x.[16]

We also find that the third element of willful and deliberate falsehood was also sufficiently alleged to
have been committed in Makati City, not Pasay City, as indicated in the last portion of the Information:

[S]aid accused stated in the Verification/Certification/Affidavit of merit of a complaint for sum of

money with prayer for a writ of replevin docketed as [Civil] Case No. 342-00 of the Metropolitan Trial
Court[,] Pasay City, that the Union Bank of the Philippines has not commenced any other action or
proceeding involving the same issues in another tribunal or agency, accused knowing well that said
material statement was false thereby making a willful and deliberate assertion of falsehood.
[17]
 (underscoring ours)

Tomas’ deliberate and intentional assertion of falsehood was allegedly shown when she made the false
declarations in the Certificate against Forum Shopping before a notary public in Makati City, despite
her knowledge that the material statements she subscribed and swore to were not true.    Thus, Makati
City is the proper venue and MeTC-Makati City is the proper court to try the perjury case against
Tomas, pursuant to Section 15(a), Rule 110 of the 2000 Revised Rules of Criminal Procedure as all the
essential elements constituting the crime of perjury were committed within the territorial jurisdiction of
Makati City, not Pasay City.

4
Referral to the En Banc

The present case was referred to the En Banc primarily to address the seeming conflict between the
division rulings of the Court in the Ilusorio case that is cited as basis of this petition, and the Sy Tiong
case that was the basis of the assailed RTC-Makati City ruling.

The Cited Ilusorio and Sy Tiong Cases

The subject matter of the perjury charge in Ilusorio involved false statements contained in verified
petitions filed with the court for the issuance of a new owner’s duplicate copies of certificates of
title. The verified petitions containing the false statements were subscribed and sworn to in Pasig City,
but were filed in Makati City and Tagaytay City. The question posed was: which court (Pasig City,
Makati City and/or Tagaytay City) had jurisdiction to try and hear the perjury cases?

We ruled that the venues of the action were in Makati City and Tagaytay City, the places where the
verified petitions were filed.  The Court reasoned out that it was only upon filing that the intent to
assert an alleged falsehood became manifest and where the alleged untruthful statement found
relevance or materiality. We cited as jurisprudential authority the case of United States. v.
Cañet[18] which ruled:

It is immaterial where the affidavit was subscribed and sworn, so long as it appears from the
information that the defendant, by means of such affidavit, "swore to" and knowingly submitted false
evidence, material to a point at issue in a judicial proceeding pending in the Court of First Instance of
Iloilo Province. The gist of the offense charged is not the making of the affidavit in Manila, but the
intentional giving of false evidence in the Court of First Instance of Iloilo Province by means of such
affidavit. [emphasis and underscoring deleted]

In Sy Tiong, the perjured statements were made in a GIS which was subscribed and sworn to in
Manila. We ruled that the proper venue for the perjury charges was in Manila where the GIS was
subscribed and sworn to. We held that the perjury was consummated in Manila where the false
statement was made. As supporting jurisprudence, we cited the case of Villanueva v. Secretary of
Justice[19] that, in turn, cited an American case entitled U.S. v. Norris.[20]  We ruled in Villanueva that –

Perjury is an obstruction of justice; its perpetration well may affect the dearest concerns of the parties
before a tribunal. Deliberate material falsification under oath constitutes the crime of perjury, and the
crime is complete when a witness' statement has once been made.

The Crime of Perjury: A Background 

To have a better appreciation of the issue facing the Court, a look at the historical background of how
the crime of perjury (specifically, Article 183 of the RPC) evolved in our jurisdiction.

The RPC penalizes three forms of false testimonies.  The first is false testimony for and against the
defendant in a criminal case (Articles 180 and 181, RPC); the second is false testimony in a civil case
(Article 182, RPC); and the third is false testimony in other cases (Article 183, RPC).  Based on the
Information filed, the present case involves the making of an untruthful statement in an affidavit on a
material matter.

These RPC provisions, however, are not really the bases of the rulings cited by the parties in their
respective arguments.  The cited Ilusorio ruling, although issued by this Court in 2008, harked back to
the case of Cañet which was decided in 1915, i.e., before the present RPC took effect.[21] Sy Tiong, on
the other hand, is a 2009 ruling that cited Villanueva, a 2005 case that in turn cited United States v.
Norris, a 1937 American case.  Significantly, unlike Canet, Sy Tiong is entirely based on rulings
rendered after the present RPC took effect.[22]

5
The perjurious act in Cañet consisted of an information charging perjury through the presentation
in court of a motion accompanied by a false sworn affidavit. At the time the Cañet ruling was
rendered, the prevailing law on perjury and the rules on prosecution of criminal offenses were found in
Section 3, Act No. 1697 of the Philippine Commission, and in Subsection 4, Section 6 of General Order
No. 58[23] for the procedural aspect.

Section 3 of Act No. 1697 reads:

Sec. 3. Any person who, having taken oath before a competent tribunal, officer, or person, in any case
in which a law of the Philippine Islands authorizes an oath to be administered, that he will testify,
declare, depose, or certify truly, or that any written testimony, declaration, disposition, or certificate by
him subscribed is true, willfully and contrary to such oath states or subscribes any material matter
which he does not believe to be true, is guilty of perjury, and shall be punished by a fine of not more
than two thousand pesos and by imprisonment for not more than five years; and shall moreover,
thereafter be incapable of holding any public office or of giving testimony in any court of the Philippine
Islands until such time as the judgment against him is reversed.

This law was copied, with the necessary changes, from Sections 5392 [24] and 5393[25] of the Revised
Statutes of the United States. [26]  Act No. 1697 was intended to make the mere execution of a false
affidavit punishable in our jurisdiction.[27]

In turn, Subsection 4, Section 6 of General Order No. 58 provided that the venue shall be the court of
the place where the crime was committed.

As applied and interpreted by the Court in Cañet, perjury was committed by the act of representing a
false document in a judicial proceeding. [28] The venue of action was held by the Court to be at the place
where the false document was presented since the presentation was the act that consummated the
crime.

The annotation of Justices Aquino and Griño-Aquino in their textbook on the RPC [29] interestingly
explains the history of the perjury provisions of the present RPC and traces as well the linkage between
Act No. 1697 and the present Code.  To quote these authors:[30]

Art. 180 was taken from art. 318 of the Old Penal Code and art. 154 of Del Pan’s Proposed Correctional
Code, while art. 181 was taken from art. 319 of the old Penal Code and Art. 157 of Del Pan’s Proposed
Correctional Code.  Said arts. 318 and 319, together with art. 321 of the old Penal Code, were
impliedly repealed by Act 1697, the Perjury Law, passed on August 23, 1907, which in turn was
expressly repealed by the Administrative Code of 1916, Act 2657.  In view of the express repeal of Act
1697, arts. 318 and 321 of the old Penal Code were deemed revived.  However, Act 2718 expressly
revived secs. 3 and 4 of the Perjury Law.  Art. 367 of the Revised Penal Code repealed Act Nos. 1697
and 2718.

It should be noted that perjury under Acts 1697 and 2718 includes false testimony, whereas, under the
Revised Penal Code, false testimony includes perjury.  Our law on false testimony is of Spanish origin,
but our law on perjury (art. 183 taken from sec. 3 of Act 1697) is derived from American
statutes.  The provisions of the old Penal Code on false testimony embrace perjury committed in court
or in some contentious proceeding, while perjury as defined in Act 1697 includes the making of a false
affidavit.  The provisions of the Revised Penal Code on false testimony “are more severe and strict than
those of Act 1697” on perjury. [italics ours]

With this background, it can be appreciated that Article 183 of the RPC which provides:

The penalty of arresto mayor in its maximum period to prision correccional in its minimum period shall
be imposed upon any person, who knowingly makes untruthful statements and not being included in
the provisions of the next preceding articles, shall testify under oath, or make an affidavit, upon

6
any material matter before a competent person authorized to administer an oath in cases in which the
law so requires. [emphasis supplied; emphases ours]

in fact refers to either of two punishable acts – (1) falsely testifying under oath in a proceeding other
than a criminal or civil case; and (2) making a false affidavit before a person authorized to administer
an oath on any material matter where the law requires an oath.

As above discussed, Sy Tiong – decided under Article 183 of the RPC – essentially involved perjured
statements made in a GIS that was subscribed and sworn to in Manila and submitted to the SEC in
Mandaluyong City.  Thus, the case involved the making of an affidavit, not an actual testimony in a
proceeding that is neither criminal nor civil. From this perspective, the situs of the oath, i.e., the place
where the oath was taken, is the place where the offense was committed.  By implication, the proper
venue would have been the City of Mandaluyong – the site of the SEC – had the charge involved an
actual testimony made before the SEC.

In contrast, Cañet involved the presentation in court of a motion supported and accompanied by an

affidavit that contained a falsity. With  Section 3 of Act No. 1697 as basis, the issue related to the
submission of the affidavit in a judicial proceeding.  This came at a time when Act No. 1697 was the
perjury law, and made no distinction between judicial and other proceedings, and at the same time
separately penalized the making of false statements under oath (unlike the present RPC which
separately deals with false testimony in criminal, civil and other proceedings, while at the same time
also penalizing the making of false affidavits).  Understandably, the venue should be the place where
the submission was made to the court or the situs of the court; it could not have been the place where
the affidavit was sworn to simply because this was not the offense charged in the Information.

The case of Ilusorio cited the Cañet case as its authority, in a situation where the sworn petitions filed
in court for the issuance of duplicate certificates of title (that were allegedly lost) were the cited sworn
statements to support the charge of perjury for the falsities stated in the sworn petitions.  The Court
ruled that the proper venue should be the Cities of Makati and Tagaytay because it was in the courts of
these cities “where the intent to assert an alleged falsehood became manifest and where the alleged
untruthful statement finds relevance or materiality in deciding the issue of whether new owner’s
duplicate copies of the [Certificate of Condominium Title] and [Transfer Certificates of Title] may
issue.”[31] To the Court, “whether the perjurious statements contained in the four petitions were
subscribed and sworn in Pasig is immaterial, the gist of the offense of perjury being the intentional
giving of false statement,”[32] citing Cañet as authority for its statement.

The statement in Ilusorio may have partly led to the present confusion on venue because of its very
categorical tenor in pointing to the considerations to be made in the determination of venue; it leaves
the impression that the place where the oath was taken is not at all a material consideration, forgetting
that Article 183 of the RPC clearly speaks of two situations while Article 182 of the RPC likewise applies
to false testimony in civil cases.

The Ilusorio statement would have made perfect sense had the basis for the charge been Article 182 of
the RPC, on the assumption that the petition itself constitutes a false testimony in a civil case. 
The Cañet ruling would then have been completely applicable as the sworn statement is used in a civil
case, although no such distinction was made under Cañet because the applicable law at the time (Act
No. 1697) did not make any distinction.

If Article 183 of the RPC were to be used, as what in fact appears in the Ilusorio ruling, then only that
portion of the article, referring to the making of an affidavit, would have been applicable as the other
portion refers to false testimony in other proceedings which a judicial petition for the issuance of a new
owner’s duplicate copy of a Certificate of Condominium Title is not because it is a civil proceeding in
court.  As a perjury based on the making of a false affidavit, what assumes materiality is the site
where the oath was taken as this is the place where the oath was made, in this case, Pasig City.

7
Procedurally, the rule on venue of criminal cases has been subject to various changes from the time
General Order No. 58 was replaced by Rules 106 to 122 of the Rules of Court on July 1, 1940. Section
14, Rule 106 of the Rules of Court provided for the rule on venue of criminal actions and it expressly
included, as proper venue, the place where any one of the essential ingredients of the crime took
place. This change was followed by the passage of the 1964 Rules of Criminal Procedure, [33] the 1985
Rules of Criminal Procedure,[34] and the 2000 Revised Rules of Criminal Procedure which all adopted the
1940 Rules of Criminal Procedure’s expanded venue of criminal actions.  Thus, the venue of criminal
cases is not only in the place where the offense was committed, but also where any of its essential
ingredients took place.

In the present case, the Certification against Forum Shopping was made integral parts of two
complaints for sum of money with prayer for a writ of replevin against the respondent spouses Eddie
Tamondong and Eliza B. Tamondong, who, in turn, filed a complaint-affidavit against Tomas for
violation of Article 183 of the RPC.  As alleged in the Information that followed, the criminal act
charged was for the execution by Tomas of an affidavit that contained a falsity.

Under the circumstances, Article 183 of the RPC is indeed the applicable provision; thus, jurisdiction
and venue should be determined on the basis of this article which penalizes one who “make[s] an
affidavit, upon any material matter before a competent person authorized to administer an oath in
cases in which the law so requires.” The constitutive act of the offense is the making of an
affidavit; thus, the criminal act is consummated when the statement containing a falsity is subscribed
and sworn before a duly authorized person.

Based on these considerations, we hold that our ruling in Sy Tiong is more in accord with Article 183 of
the RPC and Section 15(a), Rule 110 of the 2000 Revised Rules of Criminal Procedure. To reiterate for
the guidance of the Bar and the Bench, the crime of perjury committed through the making of a false
affidavit under Article 183 of the RPC is committed at the time the affiant subscribes and swears to his
or her affidavit since it is at that time that all the elements of the crime of perjury are executed.  When
the crime is committed through false testimony under oath in a proceeding that is neither criminal nor
civil, venue is at the place where the testimony under oath is given.  If in lieu of or as supplement to
the actual testimony made in a proceeding that is neither criminal nor civil, a written sworn statement
is submitted, venue may either be at the place where the sworn statement is submitted or where the
oath was taken as the taking of the oath and the submission are both material ingredients of the crime
committed. In all cases, determination of venue shall be based on the acts alleged in the Information
to be constitutive of the crime committed.

WHEREFORE, premises considered, we hereby DENY the petition for lack of merit. Costs against the
petitioners.

SO ORDERED.

Corona, C.J., Carpio, Velasco, Jr., Leonardo-De Castro, Peralta, Bersamin, Abad, Villarama, Jr., Perez,

Mendoza, Reyes, and Perlas-Bernabe, JJ., concur.

Del Castillo, J., on official leave.

Sereno, J., on leave.

8
 FIRST DIVISION

[ G.R. No. 164443, June 18, 2010 ]

ERIBERTO S. MASANGKAY, PETITIONER, VS. PEOPLE OF THE PHILIPPINES, RESPONDENT.

DECISION

Every criminal conviction must draw its strength from the prosecution's evidence. The evidence must
be such that the constitutional presumption of innocence is overthrown and guilt is established beyond
reasonable doubt. The prosecutorial burden is not met when the circumstances can yield to different
inferences. Such equivocation betrays a lack of moral certainty to support a judgment of conviction.

This Petition for Review[1] assails the March 16, 2004 Decision[2] and the July 9, 2004 Resolution[3] of
the Court of Appeals (CA) in CA-G.R. CR No. 25775. The dispositive portion of the assailed Decision
reads:

WHEREFORE, the petition is DENIED, and the appealed Decision is AFFIRMED with the MODIFICATION
that Eriberto Masangkay is instead meted the penalty of imprisonment for a term of Six (6) months
and One (1) day of prision correccional minimum.

SO ORDERED.[4]

Factual Antecedents

Petitioner Eriberto Masangkay (Eriberto), his common-law wife Magdalena Ricaros (Magdalena), Cesar
Masangkay (Cesar) and his wife Elizabeth Masangkay (Elizabeth), and Eric Dullano were the
incorporators and directors of Megatel Factors, Inc. (MFI) which was incorporated in June 1990. [5]

On December 29, 1993 Eriberto filed with the Securities and Exchange Commission (SEC) a Petition for
the Involuntary Dissolution[6] of MFI for violation of Section 6 of Presidential Decree (PD) No. 902-A.
The named respondents were MFI, Cesar and Elizabeth. [7] The said petition was made under oath
before a notary public, and alleged among others:

3. At or around September 1, 1993, respondent Elizabeth A. Masangkay prepared or caused to be

prepared a Secretary's Certificate which states:

That at a special meeting of the Board of Directors of the said corporation held at its principal office on
December 5, 1992, the following resolution by unanimous votes of the directors present at said
meeting and constituting a quorum was approved and adopted:

RESOLVED, as it is hereby resolved that Lot No. 2069-A-2 situated at Bo. Canlalay, Biñan, Laguna
containing an area of 3,014 square meters covered by Transfer Certificate of Title No. T-210746 be
exchanged with 3,700 shares of stock of the corporation worth or valued at P370,000.00 by way of a
"Deed of Exchange with Cancellation of Usufruct".

xxxx

4. Said secretary's certificate is absolutely fictitious and simulated because the alleged meeting of the
Board of Directors held on December 5, 1992 did not actually materialize.

xxxx

5. Using the said falsified and spurious document, x x x respondents executed

another fictitious document known as the "Deed of Exchange with Cancellation of Usufruct".

9
The contract purporting to be a transfer of 3,700 shares of stock of MFI in return for a piece of a land
(Lot No. 2064-A-2) located at Canlalay, Biñan, Laguna and owned by minor child Gilberto Ricaros
Masangkay is void.

Article 1409 of the New Civil Code states:

"Art. 1409. The following contracts are inexistent and void from the beginning.

xxxx

(2) Those which are absolutely simulated or fictitious;

(3) Those whose cause or object did not exist at the time of the transaction;

xxxx

These contracts cannot be ratified. Neither can the right to set up the defense of illegality be waived."

The aforementioned contract is indeed simulated and fictitious because they defrauded minor child
Gilberto Ricaros Masangkay and deprived him of his own property without any consideration at all.

Records of the MFI revealed that minor child Gilberto Ricaros Masangkay [or] his alleged guardian
Magdalena S. Ricaros never became a stockholder at any point in time of MFI.

x x x x[8]

The case remains pending to date.[9]

Claiming that Eriberto lied under oath when he said that there was no meeting of the Board held on
December 5, 1992 and that the Deed of Exchange with Cancellation of Usufruct is a fictitious
instrument, the respondent in the SEC case, Cesar, filed a complaint for perjury [10] against Eriberto
before the Office of the Provincial Prosecutor of Rizal.

Eriberto raised the defense of primary jurisdiction. He argued that what is involved is primarily an
intra-corporate controversy; hence, jurisdiction lies with the SEC pursuant to Section 6 of PD 902-A, as
amended by PD No. 1758. He also insisted that there was a prejudicial question because the truth of
the allegations contained in his petition for involuntary dissolution has yet to be determined by the
SEC. These defenses were sustained by the assistant provincial prosecutor and the complaint for
perjury was dismissed for lack of merit.[11]

It was however reinstated upon petition for review [12] before the Department of Justice. [13] Chief State
Prosecutor Zenon L. De Guia held that the petition for involuntary dissolution is an administrative case
only and thus cannot possibly constitute a prejudicial question to the criminal case. He also rejected
the claim that the SEC has exclusive authority over the case. The Chief State Prosecutor explained that
the prosecution and enforcement department of the SEC has jurisdiction only over criminal and civil
cases involving a violation of a law, rule, or regulation that is administered and enforced by the SEC.
Perjury, penalized under Article 183 of the Revised Penal Code (RPC), is not within the SEC's authority.
[14]
 Thus, he ordered the conduct of a preliminary investigation, which eventually resulted in the filing
of the following information:

That sometime in the month of December 1992, [15] in the City of Mandaluyong, Philippines, a place
within the jurisdiction of this Honorable Court, the above-named accused, did then and there, willfully,
unlawfully and feloniously commit acts of perjury in his Petition for Involuntary Dissolution of Megatel
Factors, Inc. based on violation of Section 6 of Presidential Decree 902-A against Megatel Factors, Inc.,
Cesar Masangkay, Jr. and Elizabeth Masangkay which he made under oath before a notary authorized
to receive and administer oath and filed with the Securities and Exchange Commission, wherein he
10
made willful and deliberate assertion of a falsehood on a material matter when he declared the
following, to wit: a) the secretary certificate dated September 1, 1993, proposed by Elizabeth
Masangkay is fictitious and simulated because the alleged December 5, 1992, meeting never took
place; and, b) the Deed of Exchange with Cancellation of Usufruct is a fictitious document, whereby the
respondents defrauded the minor child Gilberto Ricaros Masangkay, by exchanging the child's 3,014
square meters lot with 3, 700 shares of stock of the corporation, when in fact no consideration for the
transfer was made as Gilberto Ricaros Masangkay or his guardian Magdalena Ricaros has never been a
stockholder of the Corporation at any point in time, when in truth and in fact the accused well knew
that the same statements he made in his petition and which he reaffirmed and made use as part of his
evidence in the Securities and Exchange Commission (SEC) are false.[16]

The information was docketed as Criminal Case No. 56495 and raffled to the Metropolitan Trial Court
(MeTC) of Mandaluyong City, Branch 59.

Eriberto filed a motion to quash, [17] insisting that it is the SEC which has primary jurisdiction over the
case. He also argued that the truth of the allegations contained in the information is still pending
resolution in SEC Case No. 12-93-4650, thereby constituting a prejudicial question to the perjury case.

The MeTC denied the motion to quash for lack of merit. [18] It held that the fact that the parties to the
criminal case are mostly stockholders of the same corporation does not automatically make the case
an intra-corporate dispute that is within the SEC jurisdiction. It likewise held that the fact that the
parties are stockholders is merely incidental and that the subject of the case is a criminal act and
hence within the general jurisdiction of the MeTC. As regards the issue of prejudicial question, the
MeTC ruled that the petition before the SEC has nothing to do with the criminal case. The truth of the
statements for which he is being indicted is a matter of defense which the defendant may raise in the
criminal case.

Eriberto filed a petition for certiorari before Branch 158 of the Pasig City Regional Trial Court (RTC) to
assail the denial of his motion to quash. The denial was affirmed. [19] He then filed a petition
for certiorari before the CA, which was denied for being a wrong mode of appeal. [20]

Failing to suspend the criminal proceedings, Eriberto entered a plea of not guilty during arraignment.
[21]
 He then waived the conduct of a pre-trial conference.[22]

During trial, the prosecution presented the private complainant Cesar as its sole witness. [23] He testified
that on December 5, 1992, a meeting of the Board of Directors was held at 9:00 o'clock in the morning
at the office of MFI in Canlalay, Biñan, Laguna. He presented the minutes of the alleged meeting and
reiterated the details contained therein indicating that the Board unanimously approved Magdalena's
proposal to exchange her son's (Gilberto Masangkay [Gilberto]) property with MFI shares of stock.
[24]
 The prosecution established that one of the signatures appearing in the minutes belongs to Eriberto.
[25]
 This allegedly belies Eriberto's statement that the December 5, 1992 meeting "did not actually
materialize," and shows that he knew his statement to be false because he had attended the meeting
and signed the minutes thereof. The prosecution also pointed out that in the proceedings before the
guardianship court to obtain approval for the exchange of properties, Eriberto had testified in support
of the exchange.[26] The guardianship court subsequently approved the proposed transaction. [27] The
resulting Deed of Exchange contained Eriberto's signature as first party.[28]

As for Eriberto's statement that the Deed of Exchange was simulated, the prosecution disputed this by
again using the minutes of the December 5, 1992 meeting, which states that the property of Gilberto
will be exchanged for 3,700 MFI shares.

For his defense, Eriberto asserted that the December 5, 1992 meeting did not actually take place.
While he admitted signing, reading and understanding the minutes of the alleged meeting, he
explained that the minutes were only brought by Cesar and Elizabeth to his house for signing, but
there was no actual meeting.[29]

11
To support the claim that no meeting took place in 1992, the defense presented Elizabeth, the MFI
corporate secretary, who could not remember with certainty if she had sent out any notice for the
December 5, 1992 meeting and could not produce any copy thereof.

The defense also presented a notice of meeting dated October 19, 1993, which called for the MFI
board's initial meeting "since its business operations started," to be held on November 9, 1993.
Emphasizing the words "initial meeting," Eriberto argued that this proves that prior to November 9,
1993, no meeting (including the December 5, 1992 meeting) had ever taken place.

As for the charge that he perjured himself when he stated that the Deed of Exchange was fictitious and
simulated for lack of consideration, Eriberto explained that MFI never issued stock certificates in favor
of his son Gilberto. Corporate secretary Elizabeth corroborated this statement and admitted that stock
certificates were never issued to Gilberto or any of the stockholders.[30]

While he admitted supporting the proposed exchange and seeking its approval by the guardianship
court, Eriberto maintained that he did so because he was convinced by private complainant Cesar that
the exchange would benefit his son Gilberto. He however reiterated that, to date, Gilberto is not a
stockholder of MFI, thus has not received any consideration for the exchange.

On rebuttal, the prosecution refuted Eriberto's claim that the board had its first actual meeting only on
November 9, 1993. It explained that the November 9, 1993 meeting was the initial meeting "since
business operations began", because MFI obtained permit to conduct business only in 1993. But the
November 9, 1993 meeting was not the first meeting ever held by the board of directors. The
prosecution presented the secretary's certificates of board meetings held on April 6, 1992 [31] and
September 5, 1992[32] -- both before November 9, 1993 and both signed by Eriberto. [33] At this time,
business operations have not yet begun because the company's hotel building was still under
construction. The said secretary's certificates in fact show that MFI was still sourcing additional funds
for the construction of its hotel.[34]

Ruling of the Metropolitan Trial Court

On October 18, 2000, the MeTC rendered a judgment [35] holding that the prosecution was able to prove
that the December 5, 1992 meeting actually took place and that petitioner attended the same as
evidenced by his signature in the minutes thereof. As for Eriberto's statement that the Deed of
Exchange was "fictitious," the MeTC held that his participation in the approval and execution of the
document, as well as his avowals before the guardianship court regarding the proposed exchange all
militate against his previous statement. Petitioner was thus found guilty as charged and sentenced to
imprisonment of two months of arresto mayor minimum and medium, as minimum, to one year and
one day of arresto mayor maximum and prison correccional minimum, as maximum.[36]

Ruling of the Regional Trial Court

Eriberto appealed[37] his conviction to the RTC of Mandaluyong City, Branch 213, which eventually
affirmed the appealed judgment.[38] The fallo of the Decision states that:

WHEREFORE, the decision of October 18, 2000 by Metropolitan Trial Court, Branch 59, Mandaluyong
City, convicting the accused-appellant Eriberto S. Masangkay of the crime of perjury under Article 183
of the Revised Penal Code is hereby affirmed in toto.

SO ORDERED.[39]

Ruling of the Court of Appeals

The CA affirmed the appealed ruling of the trial courts, holding that the prosecution was able to prove
that the falsehoods in the petition for involuntary dissolution were deliberately made. It explained that
Eriberto's signatures on the two allegedly fictitious documents show that he participated in the

12
execution of the Deed of Exchange and was present in the December 5, 1992 meeting. Having
participated in these two matters, Eriberto knew that these were not simulated and fictitious, as he
claimed in his verified petition for involuntary dissolution of MFI. Thus, he deliberately lied in his
petition.[40]

The CA rejected petitioner's argument that the two statements were not material. It ruled that they
were material because petitioner even cited them as principal basis for his petition for involuntary
dissolution.[41]

The appellate court found no merit in the issue of prejudicial question. It held that the result of the
petition for involuntary dissolution will not be determinative of the criminal case, which can be resolved
independently.[42]

The CA however, corrected the imposed penalty on the ground that the trial court was imprecise in its
application of the Indeterminate Sentence Law. The CA meted the penalty of imprisonment for a term
of six months and one day of prision correccional minimum.[43]

Petitioner moved for reconsideration[44] which was denied.[45]

Hence, this petition.[46]

Issues

Petitioner submits the following issues for review:

Whether there was deliberate assertion of falsehood

II

Whether the TRUTHFUL allegation in the petition for involuntary dissolution that there was no meeting
is material to the petition

III

Whether perjury could prosper while the main case remains pending [47]

Since this is a case involving a conviction in a criminal case, the issues boil down to whether the
prosecution was able to prove the accused's guilt beyond reasonable doubt.

Our Ruling

We rule that the prosecution failed to prove the crime of perjury beyond reasonable doubt.

Article 183 of the RPC provides:

False testimony in other cases and perjury in solemn affirmation. - The penalty of arresto mayor in its
maximum period to prision correccional in its minimum period shall be imposed upon any person who,
knowingly making untruthful statements and not being included in the provisions of the next preceding
articles shall testify under oath, or make an affidavit, upon any material matter before a competent
person authorized to administer an oath in cases in which the law so requires.

Any person who, in case of a solemn affirmation made in lieu of an oath, shall commit any of the
falsehoods mentioned in this and the three preceding articles of this section, shall suffer the respective
penalties provided therein.

13
For perjury to exist, (1) there must be a sworn statement that is required by law;  (2) it must be made
under oath before a competent officer; (3) the statement contains a deliberate assertion of falsehood;
and (4) the false declaration is with regard to a material matter.[48]

The presence of the first two elements is not disputed by the petitioner and they are indeed present in
the instant case. The sworn statements which contained the alleged falsehoods in this case were
submitted in support of the petition for involuntary dissolution, as required by Sections 105 and 121 of
the Corporation Code.

The petition was also verified by the petitioner before a notary public [49]--an officer duly authorized by
law to administer oaths. This verification was done in compliance with Section 121 of the Corporation
Code.[50]

It is the elements of deliberate falsehood and materiality of the false statements to the petition for

involuntary dissolution which are contested.

On the element of materiality, a material matter is the main fact which is the subject of the inquiry or
any fact or circumstance which tends to prove that fact, or any fact or circumstance which tends to
corroborate or strengthen the testimony relative to the subject of inquiry, or which legitimately affects
the credit of any witness who testifies.[51]

Petitioner filed a petition for involuntary dissolution of MFI based on Section 105 of the Corporate
Code, which states:

Section 105. Withdrawal of stockholder or dissolution of corporation. - In addition and without

prejudice to the other rights and remedies available to a stockholder under this Title, any stockholder
of a close corporation may, for any reason, compel the said corporation to purchase his shares at their
fair value, which shall not be less than their par or issued value, when the corporation has sufficient
assets in his books to cover its debts and liabilities exclusive of capital stock: Provided, That any
stockholder of a close corporation may, by written petition to the Securities and Exchange Commission,
compel the dissolution of such corporation whenever any of the acts of the directors, officers or those
in control of the corporation is illegal, or fraudulent, or dishonest, or oppressive or unfairly
prejudicial to the corporation or any stockholder, or whenever corporate assets are being misapplied or
wasted.

He stated in his petition for involuntary dissolution that:

xxxx

4. Said secretary's certificate is absolutely fictitious and simulated, because the alleged meeting of the
Board of Directors held on December 5, 1992 did not actually materialize.

xxxx

5. Using the said falsified and spurious document, x x x respondents executed another fictitious
document known as the Deed of Exchange with Cancellation of Usufruct.

xxxx

The aforementioned contract is indeed simulated and fictitious because they defrauded minor child
Gilberto Ricaros Masangkay and deprived him of his own property without any consideration at all.

xxxx

14
8. The foregoing acts and deeds of the respondents, done in evident bad faith and in conspiracy with
one another, are seriously fraudulent and illegal because they constitute estafa through falsification of
documents, punishable under Articles 315 and 171 of the Revised Penal Code.

9. Likewise, said acts and deeds are feloniously prejudicial to the stockholders of MFI, including
petitioner, as corporate assets are being misapplied and wasted.

10. MFI should therefore be ordered dissolved after appropriate proceedings before this Honorable
Commission, in accordance with Sections 105 and 121 of the New Corporation Code x x x. [52]

The statements for which the petitioner is tried for perjury are the very grounds he relied upon in his
petition for corporate dissolution. They refer to acts of the MFI directors which are allegedly fraudulent,
illegal and prejudicial, and which would allegedly justify corporate dissolution under Section 105 of the
Corporation Code. Evidently, these statements are material to his petition for involuntary dissolution.
The element of materiality is therefore present.

The prosecution, however, failed to prove the element of deliberate falsehood.

The prosecution has the burden of proving beyond reasonable doubt the falsehood of petitioner's
statement that the December 5, 1992 meeting "did not actually materialize." In other words, the
prosecution has to establish that the said meeting in fact took place, i.e., that the directors were
actually and physically present in one place at the same time and conferred with each other.

To discharge this burden, the prosecution relied mainly on the minutes of the alleged December 5,
1992 meeting, signed by the accused, which are inconsistent with his statement that the December 5,
1992 meeting did not actually materialize. According to the minutes, a meeting actually took place. On
the other hand, according to the petitioner's statement in the petition for dissolution, the meeting did
not actually materialize or take place. The two statements are obviously contradictory or inconsistent
with each other. But the mere contradiction or inconsistency between the two statements merely
means that one of them is false. It cannot tell us which of the two statements is actually false. The
minutes could be true and the sworn statement false. But it is equally possible that the minutes are
false and the sworn statement is true, as explained by the petitioner who testified that the minutes
were simply brought to his house for signature, but no meeting actually transpired. Given the
alternative possibilities, it is the prosecution's burden to affirmatively prove beyond reasonable doubt
that the first statement (the minutes) is the true one, while the other statement (in the petition for
dissolution) is the false one.

We have held before that a conviction for perjury cannot be obtained by the prosecution by merely
showing the inconsistent or contradictory statements of the accused, even if both statements are
sworn. The prosecution must additionally prove which of the two statements is false and must show
the statement to be false by evidence other than the contradictory statement.[53] The rationale for
requiring evidence other than a contradictory statement is explained thus:

x x x Proof that accused has given contradictory testimony under oath at a different time will not be
sufficient to establish the falsity of his testimony charged as perjury, for this would leave simply one
oath of the defendant as against another, and it would not appear that the testimony charged was
false rather than the testimony contradictory thereof. The two statements will simply neutralize each
other; there must be some corroboration of the contradictory testimony. Such corroboration, however,
may be furnished by evidence aliunde tending to show perjury independently of the declarations of
testimony of the accused.[54]

In this case, however, the prosecution was unable to prove, by convincing evidence other than the
minutes, that the December 5, 1992 meeting actually took place. It merely presented, aside from the
minutes, the testimony of private complainant Cesar, who is a respondent in the corporate dissolution
case filed by the petitioner and is therefore not a neutral or disinterested witness. [55] The prosecution

15
did not present the testimony of the other directors or participants in the alleged meeting who could
have testified that the meeting actually occurred. Neither did the prosecution offer any explanation
why such testimony was not presented. It likewise failed to present any evidence that might
circumstantially prove that on December 5, 1992, the directors were physically gathered at a single
place, and there conferred with each other and came up with certain resolutions. Notably, the
prosecution failed to present the notice for the alleged meeting. The corporate secretary, Elizabeth,
who was presented by the petitioner, could not even remember whether she had sent out a prior
notice to the directors for the alleged December 5, 1992 meeting. The lack of certainty as to the
sending of a notice raises serious doubt as to whether a meeting actually took place, for how could the
directors have been gathered for a meeting if they had not been clearly notified that such a meeting
would be taking place?

The insufficiency of the prosecution's evidence is particularly glaring considering that the petitioner had
already explained the presence of his signature in the minutes of the meeting. He testified that while
the meeting did not actually take place, the minutes were brought to his house for his signature. He
affixed his signature thereto because he believed that the proposed exchange of the assets, which was
the subject of the minutes, would be beneficial to his child, Gilberto. Acting on this belief, he also
supported the approval of the exchange by the guardianship court.

Under these circumstances, we cannot say with moral certainty that the prosecution was able to prove
beyond reasonable doubt that the December 5, 1992 meeting actually took place and that the
petitioner's statement denying the same was a deliberate falsehood.

The second statement in the petition for involuntary dissolution claimed to be perjurious reads:

5. Using the said falsified and spurious document, respondents executed another fictitious document
known as the Deed of Exchange with Cancellation of Usufruct.

The contract purporting to be a transfer of 3,700 shares of stock of MFI in return for a piece of land
(Lot No. 2064-A-2) located at Canlalay, Biñan, Laguna and owned by minor child Gilberto Masangkay is
void.

Article 1409 of the New Civil Code states:

Article 1409. The following contracts are inexistent and void from the beginning:

xxxx

(2) those which are absolutely simulated or fictitious;

(3) those whose cause or object did not exist at the time of the transaction;

xxxx

These contracts cannot be ratified. Neither can the right to set up the defense of illegality be waived.

The aforementioned contract is indeed simulated and fictitious because they defrauded minor child

Gilberto Ricaros Masangkay and deprived him of his own property without any consideration at all.

Records of the MFI revealed that minor child Gilberto Ricaros Masangkay [or] his alleged guardian
Magdalena S. Ricaros never became a stockholder at any point in time of MFI.

In short, the petitioner is being charged with deliberate falsehood for his statement that the deed of
exchange is fictitious. To support the accusation, the prosecution proved that petitioner assented to
the said Deed of Exchange by virtue of his signatures in the minutes of the alleged December 5, 1992
meeting and on the instrument itself, and his participation in procuring the guardianship court's

16
approval of the transaction. These allegedly show that the exchange was not fictitious and that Eriberto
knew it.

We cannot agree with this line of reasoning. Petitioner's imputation of fictitiousness to the Deed of
Exchange should not be taken out of context. He explained in paragraph 5 of his petition for
involuntary dissolution that the Deed of Exchange is simulated and fictitious pursuant to Article 1409 of
the Civil Code, because it deprived Gilberto Masangkay of his property without any consideration at
all. To justify his allegation that Gilberto did not receive anything for the exchange, he stated in the
same paragraph that Gilberto never became a stockholder of MFI (MFI stocks were supposed to be the
consideration for Gilberto's land). This fact was subsequently proven by the petitioner through the
corporate secretary Elizabeth, who admitted that MFI never issued stocks in favor of the stockholders.
This testimony was never explained or rebutted by the prosecution. Thus, petitioner's statement that
the exchange was "simulated and fictitious x x x because they x x x deprived [Gilberto] of his own
property without any consideration at all" cannot be considered a deliberate falsehood. It is simply his
characterization of the transaction, based on the fact that Gilberto did not receive consideration for the
exchange of his land.

As importantly, petitioner's statements in paragraph 5 of the petition for involuntary dissolution about
the nature of the Deed of Exchange are conclusions of law, and not factual statements which are
susceptible of truth or falsity. They are his opinion regarding the legal character of the Deed of
Exchange. He opined that the Deed of Exchange was fictitious or simulated under Article 1409 of the
Civil Code, because MFI supposedly did not perform its reciprocal obligation to issue stocks to Gilberto
in exchange for his land. His opinion or legal conclusion may have been wrong (as failure of
consideration does not make a contract simulated or fictitious), [56] but it is an opinion or legal
conclusion nevertheless. An opinion or a judgment cannot be taken as an intentional false statement of
facts.[57]

We recognize that perjury strikes at the very administration of the laws; that it is the policy of the law
that judicial proceedings and judgments shall be fair and free from fraud; that litigants and parties be
encouraged to tell the truth, and that they be punished if they do not. [58] However, it is also at the
heart of every criminal proceeding that every person is presumed innocent until proven guilty beyond
reasonable doubt.

Given the foregoing findings, there is no more need to discuss the issue involving the propriety of
proceeding with the perjury case while the civil case for corporate dissolution is pending.

WHEREFORE, the petition is GRANTED. The assailed March 16, 2004 Decision of the Court of Appeals
in CA-G.R. GR No. 25775 and its July 9, 2004 Resolution, are REVERSED and SET ASIDE. Petitioner
Eriberto S. Masangkay is ACQUITTED of the charge of perjury on the ground
of REASONABLE DOUBT.

SO ORDERED.

Corona, C.J., (Chairperson), Velasco, Jr., Leonardo-De Castro, and Perez, JJ., concur.

17
 THIRD DIVISION

[ G.R. No. 142011, March 14, 2003 ]

ALFONSO C. CHOA, PETITIONER, VS. PEOPLE OF THE PHILIPPINES AND LENI CHOA,
RESPONDENTS.

DECISION

SANDOVAL-GUTIERREZ, J.:

Alfonso Chan Choa, petitioner, is a Chinese national. On April 25, 1989, he filed with the Regional Trial
Court (RTC), Branch 41, Bacolod City, a verified petition for naturalization, [1] docketed as Special
Proceeding No. 5395.

During the initial hearing of the case on August 27, 1990, petitioner testified on direct examination but
he was not able to finish the same. On August 29, 1990, he filed a motion to withdraw his petition for
naturalization.[2] The trial court granted the motion in its Resolution dated September 28, 1990,
[3]
 which partly reads:

“The petitioner, Alfonso Chan Choa, has not yet finished testifying on direct-examination. Although the
petitioner has not stated in his said ‘Motion To Withdraw Petition’ the reason why he is withdrawing his
petition at this stage of the proceedings, the petitioner can not be compelled to continue with his
petition for naturalization.

“In view thereof, the petitioner, Alfonso Chan Choa, is allowed to withdraw his petition for
naturalization.

“SO ORDERED.”

Meanwhile, on August 5, 1992, State Prosecutor Pedro D. Delfin on detail at Bacolod City, acting upon
the complaint of petitioner’s wife, Leni, filed an Information [4] with the Municipal Trial Court in Cities
(MTCC), Branch 3, Bacolod City, charging petitioner with perjury under Article 183 of the Revised Penal
Code, docketed as Criminal Case No. 50322. The Information reads:

“That on or about 30th day of March, 1989, in the City of Bacolod, Philippines, and within the
jurisdiction of this Honorable Court, the herein accused did then and there, willfully, unlawfully,
feloniously and knowingly made untruthful statements or falsehoods upon material matters required by
the Revised Naturalization Law (C.A. No. 473) in his verified ‘Petition for Naturalization’ dated April 13,
1989 (sic),[5] subscribed and sworn to before Notary Public Felomino B. Tan, Jr., who is authorized to
administer oath, which petition bears Doc. No. 140, Page No. 29, Book No. XXIII, series of 1989, in the
Notarial Register of said Notary Public, by stating therein the following, to wit:

‘5.) I am married to a Filipino. My wife’s name is Leni Ong Choa and now resides at 46 Malaspina
Street, Bacolod City. I have two (2) children whose names, dates and places of birth, and residence
are as follows:

Name Date of Birth Place of Birth Residence

ALBRYAN July 19, 1981 Bacolod City 46 Malaspina St.,

ONG CHOA
Bacolod City

CHERYL May 5, 1983 Bacolod City 46 Malaspina St.,

LYNNE ONG
CHOA Bacolod City

xxxxxxxxx
18
‘10) I am of good moral character, I believe in the principles underlying the Philippine Constitution. I
have conducted myself in a proper and irreproachable manner during the entire period of my residence
in the Philippines in my relations with the constituted government as well as with the community in
which I am living.’

xxxxxxxxx

when in truth and in fact, said accused knew that his wife Leni Ong Choa and their two (2) children
were not then residing at said address at # 46 Malaspina Street, Villamonte, Bacolod City, having left
the aforesaid residence in 1984, or about five (5) years earlier and were then residing at Hervias
Subdivision, Bacolod City; that contrary to his aforesaid allegation in his verified Petition for
Naturalization, accused, while residing at 211 106 Street, Greenplains Subdivision, Bacolod City, has
been carrying on an immoral and illicit relationship with one Stella Flores Saludar, a woman not his
wife since 1984, and begetting two (2) children with her as a consequence, as he and his wife, the
private offended party herein, have long been separated from bed and board since 1984; which
falsehoods and/or immoral and improper conduct are grounds for disqualification to become a citizen of
the Philippines.

“Act contrary to law.”

Upon arraignment, petitioner entered a plea of not guilty. Trial ensued thereafter.

After trial, the MTCC rendered a Decision [6] dated February 21, 1995 finding petitioner guilty of perjury,
as charged, thus:

“FOR ALL THE FOREGOING, this Court finds the accused guilty beyond reasonable doubt of the offense
which he is presently charged, and there being no aggravating or mitigating circumstances that may
be considered, the accused is sentenced to suffer the penalty of six (6) months and one (1) day
of prision correccional and to pay the costs.”

Petitioner filed a motion for a reconsideration, [7] contending, among others, that there is no basis to
convict him of perjury because almost two years prior to the filing of the Information, his motion to
withdraw the petition for naturalization containing the alleged false statements was granted by the
MTCC, hence, the alleged false statements were no longer existing or had become functus officio.

The MTCC, in its Order[8] dated March 31, 1995, denied petitioner’s motion for reconsideration.

On appeal, the Regional Trial Court (RTC), Branch 54, Bacolod City, in a Decision dated September 12,
1996, affirmed the MTCC judgment.[9]

Petitioner then filed with the Court of Appeals a petition for review, docketed as CA-G.R. CR No.
19968. In his comment, the Solicitor General recommended the acquittal of petitioner, contending that
the withdrawal of his petition for naturalization rendered the same functus officio, thus making the
questioned false statements inexistent.

The Court of Appeals, in its Decision dated June 8, 1999, [10] affirmed the RTC Decision with
modification, thus:

“WHEREFORE, finding the appealed decision of the Regional Trial Court to be in accordance with law
and evidence, we AFFIRM the same with the modification that petitioner-accused-appellant Alfonso
Choa is sentenced to suffer imprisonment, after applying the Indeterminate Sentence Law without any
aggravating or mitigating circumstance, for a period of three (3) months of arresto mayor, to one (1)
year and eight (8) months of prision correccional.

“SO ORDERED.”
19
In convicting petitioner, the Appellate Court adopted as its own the RTC’s findings as follows:

“Evidence presented clearly proved that all the above-enumerated elements (of perjury) have been
duly executed by the accused. His allegations in his petition regarding his, his wife’s and children’s
residences and his positive averment of the fact that he is of good moral character and had conducted
himself in an irreproachable manner during his stay in the Philippines are material matters in
connection with his petition for naturalization as they are essential facts required by Sec. 7 of C.A. No.
473 for one to fulfill for the acquisition of Philippine citizenship. They are the very facts which
would be the subject of inquiry by the court hearing the petition and the same would be the
basis of the court’s ruling whether one is qualified and granted Philippine citizenship.

“Paragraph 2 of Art. 183 of the Revised Penal Code provides that the statement or affidavit is to be
made before a competent officer, authorized to receive and administer oath. The information shows
that the statement was duly subscribed and sworn to before Notary Public Felomino B. Tan, Jr., a
person competent and authorized by law to receive and administer oath and the same was entered in
his notary register as Doc. No. 140, Page No. 29, Book No. XXIII, Series of 1989.

“That the accused made a willful and deliberate assertion of falsehood could be gleaned from the
discrepancies in his given addresses. In his petition for naturalization he gave No. 46 Malaspina Street,
Villamonte, Bacolod City as his and his wife’s residence, while in the birth certificates and the affidavit
of admission of paternity of both Fonsella Kae Saludar and Steve Albert Saludar, he gave No. 211, 106
Street, Greenplains Subdivision, Bacolod City as his address besides from the fact that while may have
been residing in the above-stated addresses, his wife and children have been staying at Hervias
Subdivision, Bacolod City since the latter part of 1984. Furthermore, cohabiting openly with another
woman not his wife and siring (2) children with the same, in open defiance with the norm of morality
of the community where monogamy is the accepted practice, is very inconsistent with his allegations of
a moral life, proper and irreproachable, considering that the accused, by his own admission is a
graduate of the University of St. La Salle, a school known for its high academic and moral standards.
These assertions are not only willful and deliberate but a perversion of truth which the law is mandated
to punish.

“Section 7 of C.A. 473 provides:

‘Any person desiring to acquire Philippine citizenship shall file with the competent Court, a petition in
triplicate, accompanied by two (2) photographs of the petitioner, setting forth his name and
surname; his present and former residence, his occupation; the place and date of his birth, whether
single or married, the name, age, birthplace and residence of the wife and each of the children…x x x.’
(underscoring supplied)

“The above-cited provisions are the pertinent law which specifically requires any person desiring to
acquire Philippine citizenship to accomplish, thus complying with the fourth element of the crime of
perjury. (pp. 119-120, Original Records, Vol. II)” [11]

Petitioner filed a motion for reconsideration but it was denied by the Court of Appeals in a Resolution
dated February 22, 2000.[12]

Hence, the present petition for review on certiorari.[13]

Both the petitioner and the Solicitor General in their respective pleadings contend that the challenged
Decision of the Court of Appeals should be reversed because: (a) not all the elements of the crime of
perjury are present; and (b) the withdrawal of the petition for naturalization which contains the alleged
untruthful statements bars the prosecution of petitioner for perjury.

20
Thus, the issue here is whether petitioner may be convicted of perjury based on the alleged false
statements he stated in his petition for naturalization withdrawn almost two years prior to the filing of
the Information for perjury.

The petition is unmeritorious.

Article 183 of the Revised Penal Code under which petitioner has been charged and convicted,
provides:

“Art. 183. False testimony in other cases and perjury in solemn affirmation. – The penalty of arresto
mayor in its maximum period to prision correccional in its minimum period shall be imposed upon any
person who, knowingly making untruthful statements and not being included in the provisions of the
next preceding articles, shall testify under oath, or make an affidavit, upon any material matter before
a competent person authorized to administer an oath in cases in which the law so requires.

“Any person who, in case of a solemn affirmation made in lieu of an oath, shall commit any of the
falsehoods mentioned in this and the three preceding articles of this section, shall suffer the respective
penalties provided therein.”

The elements of perjury are:

1. The accused made a statement under oath or executed an affidavit upon a material matter;

2. The statement or affidavit was made before a competent officer authorized to receive and
administer oath;

3. In that statement or affidavit, the accused made a willful and deliberate assertion of a
falsehood; and

4. The sworn statement or affidavit containing the falsity is required by law or made for a legal
purpose.[14]

All these elements are present in the instant case. Petitioner willfully and deliberately alleged false
statements concerning his "residence" and "moral character" in his petition for naturalization. This was
sufficiently proven by the prosecution, as succinctly noted by the Court of Appeals in its assailed
Decision.

The petition for naturalization was duly subscribed and sworn to by petitioner before Notary Public
Filomino B. Tan, Jr., a person competent and authorized by law to receive and administer oath. Also,
petitioner started testifying under oath on his false allegations before the trial court.

The allegations in the petition regarding "residence" and "moral character" are material matters
because they are among the very facts in issue or the main facts which are the subject of
inquiry[15] and are the bases for the determination of petitioner's qualifications and fitness as a
naturalized Filipino citizen. Thus, C.A. No. 473 provides:

“SEC. 2. Qualifications. – Subject to section four of this Act, any person having the following
qualifications may become a citizen of the Philippines by naturalization:

xxxxxxxxx

"Third. He must be of good moral character and believes in the principles underlying the Philippine
Constitution, and must have conducted himself in a proper and irreproachable manner during
the entire period of his residence in the Philippines in his relation with the constituted
government as well as with the community in which he is living;

xxxxxxxxx

21
“SEC. 7. Petition for citizenship. – Any person desiring to acquire Philippine citizenship shall file with
the competent court, a petition in triplicate, accompanied by two photographs of the petitioner, setting
forth his name and surname; his present and former places of residence; his occupation; the
place and date of his birth; whether single or married and if the father of children, the name, age,
birthplace and residence of the wife and of the children; x x x; a declaration that he has the
qualifications required by this Act, specifying the same, and that he is not disqualified for
naturalization under the provisions of this Act; x x x.” (Emphasis supplied)

The necessity of declaring a truthful and specific information on the "residence" and "moral character"
in the petition for naturalization has been underscored by this Court in Chua Kian Lai vs. Republic,
[16]
 thus:

“One qualification for Philippine citizenship is that the petitioner ‘must be of good moral character.’
That circumstance should be specifically alleged in the petition.

xxxxxxxxx

“The law explicitly requires that the applicant should indicate in his petition ‘his present and former
places of residence’ (Sec. 7, Com. Act No. 473). That requirement is designed to facilitate the
verification of petitioner’s activities which have a bearing on his petition for naturalization,
especially so as to his qualifications and moral character, either by private individuals or by
investigative agencies of the government, by pointing to them the localities or places wherein
appropriate inquiries may be made (Keng Giok vs. Republic, 112 Phil. 896). Moreover, the
suppression of that information might constitute falsehood which signifies that the applicant
lacks good moral character and is not, therefore, qualified to be admitted as a citizen of the
Philippines.” (Emphasis supplied)

Fully cognizant of the truth surrounding his moral character and residence, petitioner instead declared
falsely in his verified petition for naturalization that "he has all the qualifications and none of the
disqualification under C.A. No. 473."[17] Clearly, he willfully asserted falsehood under oath on material
matters required by law.

We cannot go along with the submission of the petitioner and the Solicitor General that petitioner could
no longer be prosecuted for perjury in view of the withdrawal of the petition for naturalization
containing his false material statements. In this jurisdiction, it is not necessary that the proceeding in
which the perjury is alleged to have been committed be first terminated before a prosecution for the
said crime is commenced.[18] At the time he filed his petition for naturalization, he had committed
perjury. As discussed earlier, all the elements of the crime were already present then. He knew all
along that he wilfully stated material falsities in his verified petition. Surprisingly, he withdrew his
petition without even stating any reason therefor. [19] But such withdrawal only terminated the
proceedings for naturalization. It did not extinguish his culpability for perjury he already
committed. Indeed, the fact of withdrawal alone cannot bar the State from prosecuting petitioner, an
alien, who made a mockery not only of the Philippine naturalization law but the judicial proceedings as
well. And the petition for naturalization tainted with material falsities can be used as evidence of his
unlawful act.

Petitioner then claims that since the petition for naturalization is a pleading, the allegations therein are
absolutely privileged and cannot be used for any criminal prosecution against him, citing Sison vs.
David,[20] People vs. Aquino[21] and Flordelis vs. Himalaloan.[22]

The argument is unavailing. Sison and Aquino both involve libel cases. In Sison, this Court

categorically stressed that the term "absolute privilege" (or "qualified privilege") has an "established
technical meaning, in connection with civil actions for libel and slander." The purpose of the
privilege is to ensure that "members of the legislature, judges of courts, jurors, lawyers, and witnesses

22
may speak their minds freely and exercise their respective functions without incurring the risk of a
criminal prosecution or an action for the recovery of damages. It is granted in aid and for the
advantage of the administration of justice."[23] Certainly, in the present case, petitioner cannot
seek refuge under the absolutely privileged communication rule since the false statements he made in
his petition for naturalization has instead made a mockery of the administration of justice.

The Flordelis case is likewise not in point. There, Flordelis was charged with perjury for having alleged
false statements in his verified answer. This Court held that no perjury could be committed by Flordelis
because "an answer to a complaint in an ordinary civil action need not be under oath," thus, "it is at
once apparent that one element of the crime of perjury is absent x x x, namely, that the sworn
statement complained of must be required by law."[24]

Anent the alleged violation of petitioner's constitutional right to equal protection, suffice it to state that
such right cannot be invoked to protect his criminal act.

In People vs. Cainglet,[25] this Court emphatically stressed that "every interest of public policy
demands that perjury be not shielded by artificial refinements and narrow technicalities.
For perjury strikes at the administration of the laws. It is the policy of the law that judicial
proceedings and judgments be fair and free from fraud, and that litigants and parties be
encouraged to tell the truth, and that they be punished if they do not."

WHEREFORE, the instant petition for review on certiorari is hereby DENIED. The appealed Decision of
the Court of Appeals is AFFIRMED.

SO ORDERED.

Puno, (Chairman), Panganiban, Corona, and Carpio-Morales, JJ., concur.

EN BANC

[ G.R. No. 132451, December 17, 1999 ]

CONGRESSMAN ENRIQUE T. GARCIA, PETITIONER, VS. HON. RENATO C. CORONA, IN HIS

CAPACITY AS THE EXECUTIVE SECRETARY, HON. FRANCISCO VIRAY, IN HIS CAPACITY AS
THE SECRETARY OF ENERGY, CALTEX PHILIPPINES INC., PILIPINAS SHELL PETROLEUM
CORP. AND PETRON CORP., RESPONDENTS.

DECISION

YNARES-SANTIAGO, J.:

On November 5, 1997, this Court in Tatad v. Secretary of the Department of Energy and Lagman, et

al., v. Hon. Ruben Torres, et al., [1] declared Republic Act No. 8180, entitled "An Act Deregulating the
Downstream Oil Industry and For Other Purposes", unconstitutional, and its implementing Executive
Order No. 392 void.

R.A. 8180 was struck down as invalid because three key provisions intended to promote free
competition were shown to achieve the opposite result. More specifically, this Court ruled that its
provisions on tariff differential, stocking of inventories, and predatory pricing inhibit fair competition,
encourage monopolistic power, and interfere with the free interaction of the market forces.

While R.A. 8180 contained a separability clause, it was declared unconstitutional in its entirety since
the three (3) offending provisions so permeated the law that they were so intimately the  esse of the
law. Thus, the whole statute had to be invalidated.

As a result of the Tatad decision, Congress enacted Republic Act No. 8479, a new deregulation law
without the offending provisions of the earlier law.  Petitioner Enrique T. Garcia, a member of
23
Congress, has now brought this petition seeking to declare Section 19 thereof, which sets the time of
full deregulation, unconstitutional. After failing in his attempts to have Congress incorporate in the law
the economic theory he espouses, petitioner now asks us, in the name of upholding the Constitution, to
undo a violation which he claims Congress has committed.

The assailed Section 19 of R.A. 8479 states in full:

SEC. 19.  Start of Full Deregulation. --- Full deregulation of the Industry shall start five (5) months
following the effectivity of this Act:  Provided, however, That when the public interest so requires, the
President may accelerate the start of full deregulation upon the recommendation of the DOE and the
Department of Finance (DOF) when the prices of crude oil and petroleum products in the world market
are declining and the value of the peso in relation to the US dollar is stable, taking into account
relevant trends and prospects; Provided, further, That the foregoing provision notwithstanding, the five
(5)-month Transition Phase shall continue to apply to LPG, regular gasoline and kerosene as socially-
sensitive petroleum products and said petroleum products shall be covered by the automatic pricing
mechanism during the said period.

Upon the implementation of full deregulation as provided herein, the Transition Phase is deemed
terminated and the following laws are repealed:

a)  Republic Act No. 6173, as amended;

b)  Section 5 of Executive Order No. 172, as amended;

c)  Letter of Instruction No. 1431, dated October 15, 1984;

d)  Letter of Instruction No. 1441, dated November 20, 1984, as amended;

e)  Letter of Instruction No. 1460, dated May 9, 1985;

f)  Presidential Decree No. 1889; and

g)  Presidential Decree No. 1956, as amended by Executive Order No. 137:

Provided, however, That in case full deregulation is started by the President in the exercise of the
authority provided in this Section, the foregoing laws shall continue to be in force and effect with
respect to LPG, regular gasoline and kerosene for the rest of the five (5)-month period.

Petitioner contends that Section 19 of R.A. 8479, which prescribes the period for the removal of price
control on gasoline and other finished products and for the full deregulation of the local downstream oil
industry, is patently contrary to public interest and therefore unconstitutional because within the short
span of five months, the market is still dominated and controlled by an oligopoly of the three (3)
private respondents, namely, Shell, Caltex and Petron.

The objective of the petition is deceptively simple.  It states that if the constitutional mandate against
monopolies and combinations in restraint of trade [2] is to be obeyed, there should be indefinite and
open-ended price controls on gasoline and other oil products for as long as necessary.  This will
allegedly prevent the "Big 3" --- Shell, Caltex and Petron --- from price-fixing and overpricing. 
Petitioner calls the indefinite retention of price controls as "partial deregulation".

The grounds relied upon in the petition are:

A.

SECTION 19 OF R.A. NO. 8479 WHICH PROVIDES FOR FULL DEREGULATION FIVE (5)
MONTHS OR EARLIER FOLLOWING THE EFFECTIVITY OF THE LAW, IS GLARINGLY PRO-
OLIGOPOLY, ANTI-COMPETITION AND ANTI-PEOPLE, AND IS THEREFORE PATENTLY

24
UNCONSTITUTIONAL FOR BEING IN GROSS AND CYNICAL CONTRAVENTION OF THE
CONSTITUTIONAL POLICY AND COMMAND EMBODIED IN ARTCLE XII, SECTION 19 OF THE
1987 CONSTITUTION AGAINST MONOPOLIES AND COMBINATIONS IN RESTRAINT OF
TRADE.

B.

SAID SECTION 19 OF R.A. No. 8479 IS GLARINGLY PRO-OLIGOPOLY, ANTI-COMPETITION

AND ANTI-PEOPLE, FOR THE FURTHER REASON THAT IT PALPABLY AND CYNICALLY
VIOLATES THE VERY OBJECTIVE AND PURPOSE OF R.A. NO. 8479, WHICH IS TO ENSURE A
TRULY COMPETITIVE MARKET UNDER A REGIME OF FAIR PRICES.

C.

SAID SECTION 19 OF R.A. No. 8479, BEING GLARINGLY PRO-OLIGOPOLY, ANTI-

COMPETITION AND ANTI-PEOPLE, BEING PATENTLY UNCONSTITUTIONAL AND BEING
PALPABLY VIOLATIVE OF THE LAW'S POLICY AND PURPOSE OF ENSURING A TRULY
COMPETITIVE MARKET UNDER A REGIME OF FAIR PRICES, IS A VERY GRAVE AND GRIEVOUS
ABUSE OF DISCRETION ON THE PART OF THE LEGISLATIVE AND EXECUTIVE BRANCHES OF
GOVERNMENT.

D.

PREMATURE FULL DEREGULATION UNDER SECTION 19 OF R.A. NO. 8479 MAY AND SHOULD
THEREFORE BE DECLARED NULL AND VOID EVEN AS THE REST OF ITS PROVISIONS REMAIN
IN FORCE, SUCH AS THE TRANSITION PHASE OR PARTIAL DEREGULATION WITH PRICE
CONTROLS THAT ENSURES THE PROTECTION OF THE PUBLIC INTEREST BY PREVENTING THE
BIG 3 OLIGOPOLY'S PRICE-FIXING AND OVERPRICING.[3]

The issues involved in the deregulation of the downstream oil industry are of paramount significance. 
The ramifications, international and local in scope, are complex.  The impact on the nation's economy
is pervasive and far-reaching.  The amounts involved in the oil business are immense. Fluctuations in
the supply and price of oil products have a dramatic effect on economic development and public
welfare. As pointed out in the Tatad decision, few cases carry a surpassing importance on the daily life
of every Filipino.  The issues affect everybody from the poorest wage-earners and their families to the
richest entrepreneurs, from industrial giants to humble consumers.

Our decision in this case is complicated by the unstable oil prices in the world market.   Even as this
case is pending, the price of OPEC oil is escalating to record levels. We have to emphasize that our
decision has nothing to do with worldwide fluctuations in oil prices and the counter-measures of
Government each time a new development takes place.

The most important part of deregulation is freedom from price control. Indeed, the free play of market
forces through deregulation and when to implement it represent one option to solve the problems of
the oil-consuming public.  There are other considerations which may be taken into account such as the
reduction of taxes on oil products, the reinstitution of an Oil Price Stabilization Fund, the choice
between government subsidies taken from the regular taxpaying public on one hand and the increased
costs being shouldered only by users of oil products on the other, and most important, the immediate
repeal of the oil deregulation law as wrong policy.  Petitioner wants the setting of prices to be done by
Government instead of being determined by free market forces.  His preference is continued price
control with no fixed end in sight.  A simple glance at the factors surrounding the present problems
besetting the oil industry shows that they are economic in nature.

R.A. 8479, the present deregulation law, was enacted to implement Article XII, Section 19 of the
Constitution which provides:

25
The State shall regulate or prohibit monopolies when the public interest so requires.  No combinations
in restraint of trade or unfair competition shall be allowed.

This is so because the Government believes that deregulation will eventually prevent monopoly.  The
simplest form of monopoly exists when there is only one seller or producer of a product or service for
which there are no substitutes.  In its more complex form, monopoly is defined as the joint acquisition
or maintenance by members of a conspiracy, formed for that purpose, of the power to control and
dominate trade and commerce in a commodity to such an extent that they are able, as a group, to
exclude actual or potential competitors from the field, accompanied with the intention and purpose to
exercise such power.[4]

Where two or three or a few companies act in concert to control market prices and resultant profits,
the monopoly is called an oligopoly or cartel.  It is a combination in restraint of trade.

The perennial shortage of oil supply in the Philippines is exacerbated by the further fact that the
importation, refining, and marketing of this precious commodity are in the hands of a cartel, local but
made up of foreign-owned corporations.  Before the start of deregulation, the three private
respondents controlled the entire oil industry in the Philippines.

It bears reiterating at the outset that the deregulation of the oil industry is a policy determination of
the highest order.  It is unquestionably a priority program of Government.  The Department of Energy
Act of 1992[5] expressly mandates that the development and updating of the existing Philippine energy
program "shall include a policy direction towards deregulation of the power and energy industry."

Be that as it may, we are not concerned with whether or not there should be deregulation.   This is
outside our jurisdiction.  The judgment on the issue is a settled matter and only Congress can reverse
it. Rather, the question that we should address here is --- are the method and the manner chosen by
Government to accomplish its cherished goal offensive to the Constitution?  Is indefinite price control in
the manner proposed by petitioner the only feasible and legal way to achieve it?

Petitioner has taken upon himself a most challenging task. Unquestionably, the direction towards which
the nation's efforts at economic and social upliftment should be addressed is a function of Congress
and the President.  In the exercise of this function, Congress and the President have obviously
determined that speedy deregulation is the answer to the acknowledged dominion by oligopolistic
forces of the oil industry.  Thus, immediately after R.A. 8180 was declared unconstitutional in
the Tatad case, Congress took resolute steps to fashion new legislation towards the objective of the
earlier law.  Invoking the Constitution, petitioner now wants to slow down the process.

While the Court respects the firm resolve displayed by Congress and the President, all departments of
Government are equally bound by the sovereign will expressed in the commands of the Constitution. 
There is a need for utmost care if this Court is to faithfully discharge its duties as arbitral guardian of
the Constitution.  We cannot encroach on the policy functions of the two other great departments of
Government.  But neither can we ignore any overstepping of constitutional limitations.  Locating the
correct balance between legality and policy, constitutional boundaries and freedom of action, and
validity and expedition is this Court's dilemma as it resolves the legitimacy of a Government program
aimed at giving every Filipino a more secure, fulfilling and abundant life.

Our ruling in Tatad is categorical that the Constitution's Article XII, Section 19, is anti-trust in history
and spirit.  It espouses competition.  We have stated that only competition which is fair can release the
creative forces of the market.  We ruled that the principle which underlies the constitutional provision
is competition. Thus:

Section 19, Article XII of our Constitution is anti-trust in history and in spirit.  It espouses competition. 
The desirability of competition is the reason for the prohibition against restraint of trade, the reason for
the interdiction of unfair competition, and the reason for regulation of unmitigated monopolies.

26
Competition is thus the underlying principle of section 19, Article XII of our Constitution which cannot
be violated by R.A. No. 8180.  We subscribe to the observation of Prof. Gellhorn that the objective of
anti-trust law is "to assure a competitive economy, based upon the belief that through competition
producers will strive to satisfy consumer wants at the lowest price with the sacrifice of the fewest
resources.  Competition among producers allows consumers to bid for goods and services, and thus
matches their desires with society's opportunity costs." He adds with appropriateness that there is a
reliance upon "the operation of the `market' system (free enterprise) to decide what shall be
produced, how resources shall be allocated in the production process, and to whom the various
products will be distributed.  The market system relies on the consumer to decide what and how much
shall be produced, and on competition, among producers to determine who will manufacture it." [6]

In his recital of the antecedent circumstances, petitioner repeats in abbreviated form the factual
findings and conclusions which led the Court to declare R.A. 8180 unconstitutional.  The foreign
oligopoly or cartel formed by respondents Shell, Caltex and Petron, their indulging in price-fixing and
overpricing, their blockade tactics which effectively obstructed the entry of genuine competitors, the
dangers posed by the oil cartel to national security and economic development, and other prevailing
sentiments are stated as axiomatic truths.  They are repeated in capsulized context as the current
background facts of the present petition.

The empirical existence of this deplorable situation was precisely the reason why Congress enacted the
oil deregulation law.  The evils arising from conspiratorial acts of monopoly are recognized as clear and
present.  But the enumeration of the evils by our Tatad decision was not for the purpose of justifying
continued government control, especially price control.  The objective was, rather, the opposite.  The
evils were emphasized to show the need for free competition in a deregulated industry.   And to be
sure, the measures to address these evils are for Congress to determine, but they have to meet the
test of constitutional validity.

The Court respects the legislative finding that deregulation is the policy answer to the problems.  It
bears stressing that R.A. 8180 was declared invalid not because deregulation is unconstitutional.   The
law was struck down because, as crafted, three key provisions plainly encouraged the continued
existence if not the proliferation of the constitutionally proscribed evils of monopoly and restraint of
trade.

In sharp contrast, the present petition lacks a factual foundation specifically highlighting the need to
declare the challenged provision unconstitutional.  There is a dearth of relevant, reliable, and
substantial evidence to support petitioner's theory that price control must continue even as
Government is trying its best to get out of regulating the oil industry.  The facts of the petition are, in
the main, a general dissertation on the evils of monopoly.

Petitioner overlooks the fact that Congress enacted the deregulation law exactly because of the
monopoly evils he mentions in his petition.  Congress instituted the lifting of price controls in the belief
that free and fair competition was the best remedy against monopoly power.  In other words,
petitioner's facts are also the reasons why Congress lifted price controls and why the President
accelerated the process.  The facts adduced in favor of continued and indefinite price control are the
same facts which supported what Congress believes is an exercise of wisdom and discretion when it
chose the path of speedy deregulation and rejected Congressman Garcia's economic theory.

The petition states that it is using the very thoughts and words of the Court in its  Tatad decision. 
Those thoughts and words, however, were directed against the tariff differential, the inventory
requirement, and predatory pricing, not against deregulation as a policy and not against the lifting of
price controls.

A dramatic, at times expansive and grandiloquent, reiteration of the same background circumstances
narrated in Tatad does not squarely sustain petitioner's novel thesis that there can be deregulation
without lifting price controls.
27
Petitioner may call the industry subject to price controls as deregulated. In enacting the challenged
provision, Congress, on the other hand, has declared that any industry whose prices and profits are
fixed by government authority remains a highly regulated one.

Petitioner, therefore, engages in a legal paradox.  He fails to show how there can be deregulation while
retaining government price control.  Deregulation means the lifting of control, governance and
direction through rule or regulation.  It means that the regulated industry is freed from the controls,
guidance, and restrictions to which it used to be subjected.  The use of the word "partial" to qualify
deregulation is sugar-coating. Petitioner is really against deregulation at this time.

Petitioner states that price control is good.  He claims that it was the regulation of the importation of
finished oil products which led to the exit of competitors and the consolidation and dominion of the
market by an oligopoly, not price control.  Congress and the President think otherwise.

The argument that price control is not the villain in the intrusion and growth of monopoly appears to be
pure theory not validated by experience. There can be no denying the fact that the evils mentioned in
the petition arose while there was price control. The dominance of the so-called "Big 3" became
entrenched during the regime of price control.  More importantly, the ascertainment of the cause and
the method of dismantling the oligopoly thus created are a matter of legislative and executive choice. 
The judicial process is equipped to handle legality but not wisdom of choice and the efficacy of
solutions.

Petitioner engages in another contradiction when he puts forward what he calls a self-evident truth. 
He states that a truly competitive market and fair prices cannot be legislated into existence.   However,
the truly competitive market is not being created or fashioned by the challenged legislation. The
market is simply freed from legislative controls and allowed to grow and develop free from government
interference. R.A. 8479 actually allows the free play of supply and demand to dictate prices.  Petitioner
wants a government official or board to continue performing this task.  Indefinite and open-ended price
control as advocated by petitioner would be to continue a regime of legislated regulation where free
competition cannot possibly flourish. Control is the antithesis of competition.  To grant the petition
would mean that the Government is not keen on allowing a free market to develop. Petitioner's "self-
evident truth" thus supports the validity of the provision of law he opposes.

New players in the oil industry intervened in this case.  According to them, it is the free market policy
and atmosphere of deregulation which attracted and brought the new participants, themselves
included, into the market.  The intervenors express their fear that this Court would overrule legislative
policy and replace it with petitioner's own legislative program.

The factual allegations of the intervenors have not been refuted and we see no reason to doubt them. 
Their argument that the co-existence of many viable rivals create free market conditions induces
competition in product quality and performance and makes available to consumers an expanded range
of choices cannot be seriously disputed.

On the other hand, the pleadings of public and private respondents both put forth the argument that
the challenged provision is a policy decision of Congress and that the wisdom of the provision is
outside the authority of this Court to consider.  We agree. As we have ruled in Morfe v. Mutuc[7]:

(I)t is well to remember that this Court, in the language of Justice Laurel, "does not pass upon
question or wisdom, justice or expediency of legislation." As expressed by Justice Tuason:  "It is not
the province of the courts to supervise legislation and keep it within the bounds of propriety and
common sense.  That is primarily and exclusively a legislative concern." There can be no possible
objection then to the observation of Justice Montemayor:  "As long as laws do not violate any
Constitutional provision, the Courts merely interpret and apply them regardless of whether or not they
are wise or salutary." For they, according to Justice Labrador, "are not supposed to override legitimate
policy and x x x never inquire into the wisdom of the law."
28
It is thus settled, to paraphrase Chief Justice Concepcion in Gonzales v. Commission on Elections, that
only congressional power or competence, not the wisdom of the action taken, may be the basis for
declaring a statute invalid.  This is as it ought to be.  The principle of separation of powers has in the
main wisely allocated the respective authority of each department and confined its jurisdiction to such
a sphere.  There would then be intrusion not allowable under the Constitution if on a matter left to the
discretion of a coordinate branch, the judiciary would substitute its own.  If there be adherence to the
rule of law, as there ought to be, the last offender should be the courts of justice, to which rightly
litigants submit their controversy precisely to maintain unimpaired the supremacy of legal norms and
prescriptions.  The attack on the validity of the challenged provision likewise insofar as there may be
objections, even if valid and cogent, on its wisdom cannot be sustained.

In this petition, Congressman Garcia seeks to revive the long settled issue of the timeliness of full
deregulation, which issue he had earlier submitted to this Court by way of a Partial Motion for
Reconsideration in the Tatad case.  In our Resolution dated December 3, 1997, which has long become
final and executory, we stated:

We shall first resolve petitioner Garcia's linchpin contention that the full deregulation decreed by R.A.
No. 8180 to start at the end of March 1997 is unconstitutional.  For prescinding from this premise,
petitioner suggests that "we simply go back to the transition period, price control will be revived
through the automatic pricing mechanism based on Singapore Posted Prices.  The Energy Regulatory
Board x  x  x  would play a limited and ministerial role of computing the monthly price ceiling of each
and every petroleum fuel product, using the automatic pricing formula.  While the OPSF would return,
this coverage would be limited to monthly price increases in excess of P0.50 per liter."

We are not impressed by petitioner Garcia's submission.  Petitioner has no basis in condemning as
unconstitutional per se the date fixed by Congress for the beginning of the full deregulation of the
downstream oil industry.  Our Decision merely faulted the Executive for factoring the depletion of OPSF
in advancing the date of full deregulation to February 1997.  Nonetheless, the error of the Executive is
now a non-issue for the full deregulation set by Congress itself at the end of March 1997 has already
come to pass. March 1997 is not an arbitrary date. By that date, the transition period has ended and it
was expected that the people would have adjusted to the role of market forces in shaping the prices of
petroleum and its products. The choice of March 1997 as the date of full deregulation is a judgment of
Congress and its judgment call cannot be impugned by this Court.[8]

Reduced to its basic arguments, it can be seen that the challenge in this petition is not against the
legality of deregulation.  Petitioner does not expressly challenge deregulation.  The issue, quite simply,
is the timeliness or the wisdom of the date when full deregulation should be effective.

In this regard, what constitutes reasonable time is not for judicial determination.  Reasonable time
involves the appraisal of a great variety of relevant conditions, political, social and economic.  They are
not within the appropriate range of evidence in a court of justice.  It would be an extravagant
extension of judicial authority to assert judicial notice as the basis for the determination. [9]

We repeat that what petitioner decries as unsuccessful is not a final result. It is only a beginning.   The
Court is not inclined to stifle deregulation as enacted by Congress from its very start.  We leave alone
the program of deregulation at this stage. Reasonable time will prove the wisdom or folly of the
deregulation program for which Congress and not the Court is accountable.

Petitioner argues further that the public interest requires price controls while the oligopoly exists, for
that is the only way the public can be protected from monopoly or oligopoly pricing.  But is indefinite
price control the only feasible and legal way to enforce the constitutional mandate against oligopolies?

Article 186 of the Revised Penal Code, as amended, punishes as a felony the creation of monopolies
and combinations in restraint of trade.  The Solicitor General, on the other hand, cites provisions of
R.A. 8479 intended to prevent competition from being corrupted or manipulated.  Section 11, entitled

29
"Anti-Trust Safeguards", defines and prohibits cartelization and predatory pricing.  It penalizes the
persons and officers involved with imprisonment of three (3) to seven (7) years and fines ranging from
One million to Two million pesos. For this purpose, a Joint Task Force from the Department of Energy
and Department of Justice is created under Section 14 to investigate and order the prosecution of
violations.

Sections 8 and 9 of the Act, meanwhile, direct the Departments of Foreign Affairs, Trade and Industry,
and Energy to undertake strategies, incentives and benefits, including international information
campaigns, tax holidays and various other agreements and utilizations, to invite and encourage the
entry of new participants.  Section 6 provides for uniform tariffs at three percent (3%).

Section 13 of the Act provides for "Remedies", under which the filing of actions by government
prosecutors and the investigation of private complaints by the Task Force is provided.  Sections 14 and
15 provide how the Department of Energy shall monitor and prevent the occurrence of collusive pricing
in the industry.

It can be seen, therefore, that instead of the price controls advocated by the petitioner, Congress has
enacted anti-trust measures which it believes will promote free and fair competition.  Upon the other
hand, the disciplined, determined, consistent and faithful execution of the law is the function of the
President.  As stated by public respondents, the remedy against unreasonable price increases is not
the nullification of Section 19 of R.A. 8479 but the setting into motion of its various other provisions.

For this Court to declare unconstitutional the key provision around which the law's anti-trust measures
are clustered would mean a constitutionally interdicted distrust of the wisdom of Congress and of the
determined exercise of executive power.

Having decided that deregulation is the policy to follow, Congress and the President have the duty to
set up the proper and effective machinery to ensure that it works.  This is something which cannot be
adjudicated into existence.  This Court is only an umpire of last resort whenever the Constitution or a
law appears to have been violated.  There is no showing of a constitutional violation in this case.

WHEREFORE, the petition is DISMISSED.

SO ORDERED.

Bellosillo, Melo, Puno, Kapunan, Mendoza, Purisima, Pardo, Buena, and De Leon, Jr., JJ., concur.

Quisumbing, J., see concurring opinion.

Panganiban, J., see separate opinion.

Davide, Jr., C.J., in the result and also joins J. Panganiban in his separate opinion.

Vitug, J., in the result.

Gonzaga-Reyes, J., no part.  Spouse with counsel for intervenor.

SEPARATE OPINION

PANGANIBAN, J.:

In essence, deregulation shifts the burden of price control from the government to the "market forces"
in order (1) to eliminate government intervention that may "do more harm than good" [1] and (2) to
achieve a truly competitive market of fair prices. [2] It is also aimed at removing government abuse and
corruption in price-setting.  At bottom, deregulation is supposed to provide the best goods and
services at the cheapest prices.

30
The policy, however, is not an infallible cure to abuse, for the evil sought to be avoided may well pass
on to the market players, particularly when they combine to restrain trade or engage in unfair
competition.  In the words of Prof. Romulo L. Neri of the Asian Institute of Management, "[t]he market
is motivated by price and profits (and sadly, not by moral values [or public interest]).  The market
does not automatically supply those who need (no matter how badly they need it) but only those who
have the money to buy."[3]

The buzz words of the third millenium are "deregulation," "globalization" and "liberalization." Territorial
frontiers are virtually erased by these schemes, as goods and services are exchanged across borders
unhampered by traditional tariffs, taxes, currency controls, quantitative restrictions and other
protective barriers.  Thus, states and governments tend to surrender some of their authorities and
powers to the "market" and to the renewed energy of laissez faire, such that the threats to civil
liberties and human rights, including economic rights, may shift from government abuses to the more
bedeviling market forces that transcend boundaries and sovereignties.  In developing countries more
than in developed ones, such threats are real and ever present.

Judicial Review to Check Abuses

This is where the power of judicial review comes in -- to examine the legal effects of these new
economic paradigms and, in the present controversy, to check whether the present Oil Deregulation
Law (RA 8479) restrains rather than promotes free trade, in contravention of the Constitution. True,
the President and Congress, not this Court, have the power and the prerogative to determine whether
to adopt such market policies and, if so, under what conditions and circumstances. However, all such
policies and their ramifications must conform to the Constitution.  Otherwise, this Court has the duty to
strike them down, not because they are unwise or inconvenient, but because they are constitutionally
impermissible.

Doctrinally, policies and acts of the political departments of government may be voided by this Court
on either of two grounds -- infringement of the Constitution or grave abuse of discretion. [4] An
infringement may be proven by demonstrating that the words of the law directly contradict a provision
of the fundamental law, or by presenting proof that the law authorizes or enables the respondents to
violate the Constitution.

Petitioner Garcia's Thesis on Unconstitutionality Concerns Policy

Having set down the doctrinal legal parameters, let me now discuss the petitioner's thesis.   Petitioner
Enrique T. Garcia anchors his position on the alleged unconstitutionality of Section 19 of RA 8479,
[5]
 which sets the full deregulation of the oil industry five months from the effectivity of the law, on the
argument that said provision directly violates Section 19, Article XII of the Constitution, which reads as
follows:

"Sec. 19.  The State shall regulate or prohibit monopolies when the public interest so requires.  No
combinations in restraint of trade or unfair competition shall be allowed."

He maintains that once Section 19 of RA 8479 is struck down, the government will be able to fix and
lower petroleum prices indefinitely while awaiting the advent of "real" competition in the market.

Petitioner contends that the three largest oil companies (the "Big Three") comprise an oligopoly of the
downstream oil industry.  Oligopolies, he claims, "negate free market competition and fair prices." He
submits that "regulation through price control x x x is patently required by the public interest [and] the
failure to regulate the oligopoly through price control is patently inimical to the national interest and
patently negates, circumvents and contravenes Section 19, Article XII of the Constitution."

In Tatad v. Secretary of the Department of Energy,[6] this Court defined a monopoly and a combination

in restraint of trade as follows:

31
"A monopoly is a privilege or peculiar advantage vested in one or more persons or companies,
consisting in the exclusive right or power to carry on a particular business or trade, manufacture a
particular article, or control the sale or the whole supply of a particular commodity.  It is a form of
market structure in which one or only a few firms dominate the total sales of a product or service.  On
the other hand, a combination in restraint of trade is an agreement or understanding between two or
more persons, in the form of a contract, trust, pool, holding company, or other form of association, for
the purpose of unduly restricting competition, monopolizing trade and commerce in a certain
commodity, controlling its production, distribution and price, or otherwise interfering with freedom of
trade without statutory authority.  Combination in restraint of trade refers to the means, while
monopoly refers to the end."

In that case, RA 8180, the predecessor of RA 8479, was struck down by this Court for being contrary
to section 19, Article XII of the Constitution. We took this action because we found that its provisions
on (1) tariff differential, (2) minimum inventory and (3) predatory pricing "inhibit fair competition,
encourage monopolistic power and interfere with the free interaction of market forces." We concluded,
"The aftermath of R.A. No. 8180 is a deregulated market where competition can be corrupted and
where market forces can be manipulated by oligopolies."

In my Concurring Opinion in Tatad, I labeled RA 8180 as "a pseudo deregulation law which in reality
restrains free trade and perpetuates a cartel, an oligopoly" because of the aforecited three provisions,
and because petitioners therein demonstrated to the Court "that the Big Three oil companies were
producing and processing almost identical products which they were selling to the general public at
identical prices.  When one company adjusted its prices upwards or downwards, the other two followed
suit at the same time and by the same amount."[7]

In his present Petition, petitioner persistently alleges that "[I]t is self-evident truth that public interest
requires the prevention of monopolistic/oligopolistic pricing x x x," and that such
"monopolistic/oligopolistic pricing may be prevented only through price control during the regime
of monopoly/oligopoly or through a truly competitive market under a regime of fair prices." In support
of his allegations, he cites "self-evident truths [which] have x x x been officially recognized and
implemented during more than 20 years of price control before the passage of the two oil deregulation
laws" and which "have also been recognized and upheld by no less than the Supreme Court En Banc in
the Tatad and Lagman cases x x x." He contends that "the Big 3 remain as strong and dominant as
ever."

In other words, petitioner believes that there is no valid reason to lift price control at this time when
allegedly there still exists an oligopoly in the industry.  He proposes instead that government control
should stand for an indefinite period until the new players are able to capture a substantial part of the
market.

Unfortunately, however, the foregoing thematic statements and economic theory of Petitioner Garcia
are policy in nature and are arguments supporting the wisdom of interim government price control. 
Indeed, "self-evident truths," economic theories, deeply-held beliefs, speculative assumptions and
generalizations may be the bases of legislative and executive actions, but they cannot be substitutes
for evidence and legal arguments in a judicial proceeding.  Considered judgment calls of the legislative
and the executive departments are the issues of whether the country should adopt the policy of
complete or partial deregulation, and when such policy should take effect and over what products or
services.  These issues come within judicial determination only when there is clear and substantial
proof that said policy and its concomitant variations are violative of the Constitution or are made by
those agencies in grave abuse of their discretion.

The Legal Issue Is Whether Petitioner Has Submitted Sufficient Proof That the
Big Three Have Violated the Constitution

32
To be more specific, the pivotal issue before this Court is not whether it is wiser and more beneficial to
empower the government to fix fuel prices; rather, it is whether petitioner has submitted enough
factual bases to justify the legal conclusion that the Big Three -- Petron, Shell and Caltex -- have
combined themselves "in restraint of trade or [to cause] unfair competition," to such an extent as to
legally justify a striking down of Section 19 of RA 8479.  The task of proving this issue is not easy; in
fact, it is formidable and daunting.  This is because laws are prima facie presumed constitutional and,
unless clearly shown to be infirm, they will always be upheld. [8] So, too, regularity in the performance
of official functions is the postulate, and any allegation of grave abuse or irregularity must be proven
cogently.

Deregulation per se Is Not Constitutionally Infirm

A close perusal of the assailed Section 19 of RA 8479 and Section 19 of Article XII of the Constitution
does not readily reveal their irreconcilability.  Indeed, even petitioner admits that the deregulation
policy per se is not contrary to the Constitution.  Neither could it be successfully argued that the
implementation of such policy within the five-month phase-in period is per se anathema to our
fundamental law.  It is his imperative task therefore to adduce before the Court factual and legal bases
to demonstrate clearly and cogently the unconstitutionality of the acts of Congress and the President in
adopting and implementing full deregulation of petroleum prices at this time.

In this context, I have pored over the records of this case and searched long and wide for such factual
and legal bases but, other than presumptions and generalizations that are unsupported by hard
evidence, I could not find any.  Petitioner fails to substantiate his allegations that the three oil giants
have engaged, directly or indirectly, in an unholy alliance to fix prices and restrain trade.

True, retail prices of petroleum products have been increased, to the consternation of the public, but
petitioner has not shown by specific fact or clear proof how the questioned provision of RA 8479 has
been used to transgress the Constitution.  He has not demonstrated that the Big
Three arbitrarily dictate and corrupt the price of oil in a manner violative of the Constitution.

Petitioner merely resurrects and relies heavily on the arguments, the statistics and the proofs he
submitted two years ago in the first oil deregulation case, Tatad v. Secretary of the Department of
Energy. Needless to state, those reasons were taken into consideration in said case, and they indeed
helped show the unconstitutionality of RA 8180.  But exactly the same old grounds cannot continue to
support petitioner's present allegation that the major oil companies -- Petron, Shell and Caltex --
persist to this date in their oligopolistic practices, as a consequence of the current Oil Deregulation Law
and in violation of the Constitution.  In brief, the legal cause and effect relationship has not been amply
shown.

Petitioner Has Not Proven Arbitrariness or Despotism

Petitioner harps at the five-month period of transition from price control to full deregulation provided
under Section 19 of RA 8479. He claims that such short period is not enough to ensure a "truly
competitive market" in the supposed oligopoly of the oil industry.  Again, his statement is not backed
up by evidentiary basis.  He offers no substantial proof that Congress, in deciding to lift price controls
five months from the effectivity of RA 8475, gravely abused its discretion.  To repeat, it is not within
the province of the judiciary to determine whether five months is indeed short and, for that matter,
what length of time is adequate. That is a matter of legislation addressed to the discretion of our policy
makers.

It is basic to our form of government that the Court cannot inquire into the wisdom or expediency of
the acts of the executive or the legislative department, unless there is a clear showing of constitutional
infirmity or grave abuse of discretion amounting to lack or excess of jurisdiction. [9] "By grave abuse of
discretion is meant such capricious and whimsical exercise of judgment as is equivalent to lack of

33
jurisdiction.  Mere abuse of discretion is not enough.  It must be grave abuse of discretion, as when the
power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility, and
must be so patent and so gross as to amount to an evasion of a positive duty or to a virtual refusal to
perform the duty enjoined or to act at all in contemplation of law." [10] These jurisprudential elements of
arbitrariness, despotism, passion and hostility have not been shown to exist under the present
circumstances.

Market Share of New Players Has Increased Under RA 8479

Historically, deregulation as a policy in the downstream oil industry was begun in 1996 when new
players started to set up and operate their businesses in the country.  That was practically a full three
years of operations, the last two of which saw no significant barriers in terms of tariff differential,
minimum inventory or predatory pricing.

Obviously, the conditions prevailing when the court struck down RA 8180 two years ago have not been
proven to be prevalent at present.  In 1996, the new players had a market share of barely one
percent.[11] The new players have since expanded or increased in number (46 as of June 30, 1999),
and they now have about nine percent share of the market. [12] Significantly, these new players have
intervened in this case in defense of the law. These are the little Davids who claim that with RA 8479
as their slingshot, they can, given enough time, fight and win against the three erstwhile unbeatable
Goliaths.  Indeed, they believe that the questioned provision has given them the impetus to compete
and thereby eventually show the benefits of deregulation; namely, the best products at the cheapest
prices.

With this factual backdrop and in the dire absence of contrary proof, it would be specious to conclude
that under the aegis of Section 19 of RA 8479, the Big Three have restrained trade or unduly restricted
competition.

Moreover, the three provisions in RA 8180 which were adjudged abhorrent to the fundamental
principles of free enterprise are no longer found in RA 8479.  The depletion of the Oil Price Stabilization
Fund, the extraneous factor that was considered by the President in accelerating the implementation of
full deregulation under RA 8180, was no longer taken into account in the present milieu.  The Court's
reasons for declaring the unconstitutionality of RA 8180 are, therefore, not germane to the validity of
RA 8479.  The petitioner cannot rely on the same rationale for the purpose of successfully assailing RA
8479.  Indeed, he admits that "the Tatad and Lagman cases x x x did not consider and adjudicate on
the lifting of price control per se, under RA 8180, as an issue."

Epilogue

In sum, I make no secret of my sympathy for petitioner's frustration at the inability of our government
to arrest the spiraling cost of fuel and energy. [13] I hear the cry of the poor that life has become more
miserable day by day.  I feel their anguish, pain and seeming hopelessness in securing their material
needs.

However, the power to lower petroleum prices through the adoption or the rejection of viable economic
policies or theories does not lie in the Court or its members.  Furthermore, absent sufficient factual
evidence and legal moorings, I cannot vote to declare a law or any provision thereof to be
unconstitutional simply because, theoretically, such action may appear to be wise or beneficial or
practical. Neither can I attribute grave abuse of discretion to another branch of government without an
adequate showing of patent arbitrariness, whim or caprice.  Should I do so, I myself will be gravely
abusing my discretion, the very evil that petitioner attributes to the legislature.

WHEREFORE, I vote to DISMISS the Petition.

34
 CONCURRING OPINION

QUISUMBING, J.:

I fully concur in the ponencia of Justice Consuelo Ynares-Santiago. What I would like to stress here and
now is that, contrary to certain ill-informed comments in media, petitioner's pleadings were thoroughly
dissected at the hearing where he and his counsel as well as the respondents amply presented their
arguments. Questions of law and policy were also illuminated from different perspectives in sessions
and in memoranda internally exchanged by members of the Court.  Right away, it must be added, no
delay attended the resolution of this petition.  For while the Constitution allows two years, this case
was decided en banc in less than half that period, from the time of submission of the parties'
memoranda. Below is a full presentation of my view on the controversy generated by petitioner's
insistence that the Court overturn an act passed by his own branch of government and approved by
the Chief Executive.

At issue in this special civil action for certiorari under Rule 65 is the constitutionality of Sec. 19 of
Republic Act No. 8479,[1] entitled "An Act Deregulating the Downstream Oil Industry and for other
Purposes". The law was enacted pursuant to the policy of the State to liberalize and deregulate the
downstream oil industry. R.A. 8479 is the remedial legislation passed by Congress to cure the
infirmities found in Republic Act No. 8180, the first oil industry deregulation law, otherwise known as
the "Downstream Oil Industry Deregulation Act of 1996".

In a banc decision promulgated on November 5, 1997, the Court declared R.A. 8180 unconstitutional
for having transgressed the constitutional prohibition against monopolies and combinations in restraint
of trade, specifically mandated in Section 19, Article XII of the Constitution. Consequently, Executive
Order No. 392 (E.O. 392) implementing  the provision of said law was voided.  On December 3, 1997,
the motions for reconsideration were denied for utter lack of merit.

Now before us is a challenge to the second oil industry deregulation law, R.A. 8479.  The relevant
factual and procedural antecedents of the present petition are as follows:

In 1992, the Philippine government welcomed more liberal economic policies and started the ground
work for privatization of some government-owned or controlled corporations and deregulation of the oil
industry. In due time, Congress enacted Republic Act No. 7638 on December 9, 1992.   It created the
Department of Energy (DOE). Among others, it was tasked, at the end of four years from the
effectivity of R.A. No. 7638 and upon approval of the President, to institute the "programs and the
timetable for the deregulation of appropriate projects and activities of the energy industry." [2]

Following the intent of R.A. 7638, the Philippine National Oil Company (PNOC) sold 40% of its equity in
Petron Corporation to the Aramco Overseas Company.

Sometime in March 1996, Congress made that daring step towards the realization of liberating the oil
industry from government regulation and enacted R.A. 8180.  On February 8, 1997, President Fidel V.
Ramos issued E.O. 392, which signaled the implementation or start of deregulation in the oil industry.

Senator Francisco Tatad and Congressmen Enrique Garcia, Edcel Lagman, Joker Arroyo and Wigberto
Tañada, among others, filed separate petitions docketed as G.R. Nos. 124360 and 127867, before the
Court.  The petitioners contended that some of the provisions of R.A. No. 8180 violated Section 19 of
Article XII of the 1987 Constitution, which states:

"The State shall regulate or prohibit monopolies when the public interest so requires.  No combinations
in restraint of trade or unfair competition shall be allowed."

The challenged provisions in R.A. 8180 were:

(1) the provision on tariff differential found in Section 5 (b) which states:
35
"Section 5 (b) - Any law to the contrary notwithstanding and starting with the effectivity of this Act,
tariff duty shall be imposed and collected on imported crude oil at the rate of three percent (3%) and
imported refined petroleum products at the rate of seven percent (7%), except fuel oil and LPG, the
rate for which shall be the same as that for imported crude oil:  Provided, that beginning on January 1,
2004 the tariff rate on imported crude oil and refined petroleum products shall be the same. Provided,
further, That this provision may be amended only by an Act of Congress."

(2) the minimum inventory clause, in Section 6 which provides:

"Section 6 - To ensure the security and continuity of petroleum crude and products supply, the DOE
shall require the refiners and importers to maintain a minimum inventory equivalent to ten percent
(10%) of their respective annual sales volume or forty (40) days of supply, whichever is lower."

(3) the predatory pricing scheme in Section 9:

"Section 9  - To ensure fair competition and prevent cartels and monopolies in the downstream oil
industry, the following acts shall be prohibited:

xxx

"(b) Predatory pricing which means selling or offering to sell any product at a price unreasonably below
the industry average cost so as to attract customers to the detriment of competitors."

In declaring provisions of R.A. 8180 unconstitutional, the Court held:

". . . Petron, Shell and Caltex stand as the only major league players in the oil market.  . . .  The tariff
differential of 4% therefore works to their immense benefit. . . . New players that intend to equalize
the market power of Petron, Shell and Caltex by building refineries of their own will have to spend
billions of pesos.  Those who will not build refineries but compete with them will suffer the huge
disadvantage of increasing their product cost by 4%. They will be competing on an uneven field.

"The provision on inventory widens the balance of advantage of Petron, Shell and Caltex against
prospective new players.  Petron, Shell and Caltex can easily comply with the inventory requirement of
R.A. No. 8180 in view of their existing storage facilities.  Prospective competitors again will find
compliance with this requirement difficult as it will entail a prohibitive cost. . . .

"Finally, we come to the provision on predatory pricing which is defined as `. . . selling or offering to

sell any product at a price unreasonably below the industry average cost so as to attract customers to
the detriment of competitors.'. . . The ban on predatory pricing cannot be analyzed in isolation.  Its
validity is interlocked with the barriers imposed by R.A. No. 8180 on the entry of new players." [3]

That decision came under sharp attack by critics who accused the Court of improvidently intervening in
the economic affairs of the State. Economists and businessmen remarked that the decision was a
major blow to economic reforms and an additional burden to the government's already huge budget
deficit as it would require reinstating a subsidy on oil products. [4] Pertinent portions of the Decision
decreed:

"With this Decision, some circles will chide the Court for interfering with an economic decision of
Congress.  Such criticism is charmless for the Court is annulling R.A. No. 8180 not because it disagrees
with deregulation as an economic policy but because as cobbled by Congress in its present form, the
law violates the Constitution.  The right call therefor should be for Congress to write a new oil
deregulation law that conforms with the Constitution and not for this Court to shirk its duty of striking
down a law that offends the Constitution. . . . Indeed when confronted by a law violating the
Constitution, the Court has no option but to strike it down dead. . . . Hence, for as long as the
Constitution reigns supreme so long will this Court be vigilant in upholding the economic rights of our

36
people especially from the onslaught of the powerful.  Our defense of the people's economic rights may
appear heartless because it cannot be half-hearted.

IN VIEW WHEREOF, the petitions are granted.  R.A. No. 8180 is declared unconstitutional and E.O.
No. 372 [392] void."[5]

Public respondents filed their consolidated motion for reconsideration. Some of the new players, in the
industry: Eastern Petroleum Corp., Seaoil Petroleum Corp., Subic Bay Distribution, Inc., TWA, Inc., and
Dubphil Gas moved to intervene and aired their stand against the total nullification of R.A. 8180. They
also averred that they were in favor of declaring the three offensive provisions unconstitutional.
Petitioner Enrique T. Garcia, likewise, filed a partial motion for reconsideration and pushed for a return
only to partial deregulation in which the main features of deregulation would be allowed free reign, but
the retail price of oil products would still be regulated through the Energy Regulatory Board.

The Court found no merit in the motion for reconsideration, motion for intervention, and partial motion
for reconsideration.  Despite the separability clause, the Court ruled that the three questioned
provisions cannot be struck down alone, for they were the ones intended to carry out the policy of the
law as embodied in Section 2.[6]

On the question of the validity of E.O. 392, the Court held that the Executive Department failed to
follow faithfully the standards set by R.A. 8180 when it considered the extraneous factor of depletion of
the Oil Price Stabilization Fund (OPSF) fund, instead of limiting the basis for the  acceleration of full
deregulation of the industry to only two factors, viz: (1)  the time when the prices of crude oil and
petroleum products in the world market are declining, and (2) the time when the exchange rate of the
peso in relation to the US dollar is stable. [7] By considering another factor, the Executive Department
rewrote the standards set forth in R.A. 8180. [8] In light of the uncertainty of the consideration given by
the Executive department to the depletion of the OPSF fund for the full deregulation of the oil industry,
we ruled that E.O. 392 constituted a misapplication of R.A. 8180. In sum, the implementing order was
found void, while the basic law was held unconstitutional.

On reconsideration, our December 3, 1997 Resolution stressed that R.A. 8180 is unconstitutional
because (1) it gave more power to an already powerful oil oligopoly; (2) it blocked the entry of
effective competitors; and (3) it will sire an even more powerful oligopoly whose unchecked power will
prejudice the interest of the consumers and compromise the general welfare. [9] The Court reiterated,
however, that there was no impediment in re-enacting R.A. 8180 minus the provisions which are anti-
competition.

Consequently, Congress fast-tracked a new oil deregulation law, R.A. 8479, which was approved and
duly signed on February 10, 1998. It took effect on February 12, 1998 upon the completion of its
publication in a newspaper of general circulation.

Dissatisfied with the amendments incorporated into the new law by his own colleagues in Congress,
Honorable Enrique T. Garcia filed the instant petition.

The Court is the ultimate guardian of our Constitution. By virtue of its power of judicial review, it is
duty-bound in an appropriate case to ascertain whether a law is free from constitutional flaws.   While
favoring free competition in the oil industry, the Court struck down R.A. 8180 because of provisions
therein that contravened the basic law, our Constitution. Before dwelling into the issues now raised by
the petitioner, we must determine whether R.A. 8479 truly cured the invalid portions of R.A. 8180. 
When we advocated vigilance in upholding the economic rights of our people, we truly hoped that
Congress would address the defects of R.A. 8180 and not re-enact R.A. 8180 through the guise of R.A.
8479.

It bears recalling, however, that when the Supreme Court mediates to allocate constitutional
boundaries or invalidates the acts of a coordinate body, what it is upholding is not its own supremacy
37
but the supremacy of the Constitution.  With this in mind, we now focus on the provisions of R.A.
8479, in particular the 4% tariff differential, minimum inventory level, and predatory pricing
provisions, which aim to prevent the big three oil companies from taking advantage of deregulation as
a means of cartelizing their operations, and thereby result in monopolistic and oligopolistic practices
condemned by the basic law of the land.

First, the 4% tariff differential.  On December 31, 1997, after the Court declared with finality that R.A.
8180 is unconstitutional, President Ramos issued Executive Order No. 461.  The Order imposed a three
percent (3%) import duty on petroleum products enumerated therein.  The President's move avoided
the revival of the old tariff rates of 10% on crude oil and 20% on refined oil while the legislative
department was in the process of crafting a new oil deregulation law.  Noteworthy, Sec. 6 of R.A. 8479
imposed the same tariff treatment on petroleum products. Section 6 reads:

"SEC. 6 - a) Any law to the contrary notwithstanding and starting with the effectivity of this Act, a
single and uniform tariff duty shall be imposed and collected both on imported crude oil and imported
refined petroleum products at the rate of three percent (3%):  Provided, however, That the President
of the Philippines may, in the exercise of his powers, reduce such tariff rate when on his judgment
such reduction is warranted, pursuant to Republic Act No. 1937, as amended, otherwise known as the
"Tariff and Customs Code":  Provided, further, That beginning January 1, 2004 or upon implementation
of the Uniform Tariff Program under the World Trade Organization and ASEAN Free Trade Area
commitments, the tariff rate shall be automatically adjusted to the appropriate level notwithstanding
the provisions under this Section."

Second, the minimum inventory level requirement.  R.A. 8479 eliminated the provision in R.A. 8180
requiring the refiners and importers to maintain a minimum inventory equivalent to ten percent (10%)
of their respective annual sales volume or forty (40) days' supply.  The minimum inventory
requirement was removed, giving the new entrants opportunities to use their resources to be more
competitive.

Third, predatory pricing. In the December 3, 1997 Resolution of the Court in G.R. Nos. 124360 and
127867, we expressed the view that the definition of predatory pricing was too loose to be a real
deterrent.[10] Congressman Dante O. Tinga acknowledged in his explanatory note of House Bill 10057
(H.B. 10057) that the definition of predatory pricing needed specificity, particularly with respect to the
definitive benchmark price and the express anti-competitive intent.  He suggested the Areeda-Turner
test and proposed to redefine predatory pricing. Section 11 par. (b) of R.A. 8479 adopted
Congressman Tinga's recommendation, to wit:

"b) Predatory pricing which means selling or offering to sell any oil product at a price below the seller's
or offeror's average variable cost for the purpose of destroying competition, eliminating a competitor or
discouraging a potential competitor from entering the market:  Provided, however, That pricing below
average variable cost in order to match the lower price of the competitor and not for the purpose of
destroying competition shall not be deemed predatory pricing.  For purposes of this prohibition,
`variable cost' as distinguished from `fixed cost', refers to costs such as utilities or raw materials,
which vary as the output increases or decreases and `average variable cost' refers to the sum of all
variable costs divided by the number of units of outputs."

To strengthen the anti-trust safeguards of R.A. 8479, respondents argue that there are enough
provisions to encourage entry of new participants. For instance, R.A. 8479 allows for active
participation of the private sector and cooperatives in the retail of petroleum through joint ventures to
establish gasoline stations. Moreover, R.A. 8479 requires initial public offering of shares equivalent to
10% of the capital investments by oil companies. Respondents also cite that the enforcement of
monitoring activities by the DOE encourages consumer vigilance over unwarranted increase in the
prices of petroleum products.  Another safeguard against collusion among oligopolists is the creation of
a task force with members from the DOE and the Department of Justice (DOJ) to investigate

38
complaints for violations of R.A. 8479. They assert that the mere dominance of Petron, Pilipinas Shell,
and Caltex, is not per se a combination in restraint of trade.  Combination in restraint of trade, they
claim, is the means to achieve monopoly.

Petitioner Garcia adverts to oil deregulation in phases.  The new oil deregulation law has two phases:
(1) the transition phase and (2) the full deregulation phase.

During the transition period, all non-pricing aspects were lifted. Although the Oil Price Stabilization
Fund was abolished, a buffer fund [11] was created to cover increases in the prices of petroleum
products, except premium gasoline.  The Automatic Oil Pricing Mechanism was maintained to
approximate the domestic prices of petroleum products in the international market.  The Energy
Regulatory Board (ERB) approved a market-oriented formula to determine the Wholesale Posted Price
of petroleum products based solely on the changes of either the Singapore Posting of refined petroleum
products, the Singapore Import Parity or the crude landed cost.

After the transition phase comes full deregulation as provided by Sec. 19 of R.A. 8479, which reads
thus:

"Sec. 19.  Start of Full Deregulation. - Full deregulation of the Industry shall start five (5) months
following the effectivity of this Act: Provided however, That when the public interest so requires, the
President may accelerate the start of full deregulation upon the recommendation of the Department of
Energy (DOE) and the Department of Finance (DOF) when the prices of crude oil and petroleum
products in the world market are declining and the value of the peso in relation to the US dollar is
stable, taking into account relevant trends and prospects:  Provided, further, That the foregoing
provision notwithstanding, the five (5)-month Transition Phase shall continue to apply to LPG, regular
gasoline and kerosene as socially-sensitive petroleum products and said petroleum products shall be
covered by the automatic pricing mechanism during the said period." [12]

Note that the abovecited transition phase of five months could be abbreviated when public interest so
requires.  The President's power to accelerate the start of full deregulation, however, depended upon
the recommendation of the Departments of Energy and Finance.

Accordingly as recommended, on March 14, 1998, President Ramos issued E.O. 471 to accelerate the
implementation of full deregulation. Pertinently this E.O., which implements R.A. 8479, provides:

"WHEREAS, Republic Act No. 7638, otherwise known as the `Department of Energy Act of 1992,'
provides that, `at the end of four years from its effectivity last December 1992, the Department [of
Energy] shall, upon approval of the President, institute the programs and timetable of deregulation of
appropriate energy projects and activities of the energy sector;'

"WHEREAS, Section 19 of Republic Act No. 8479, otherwise known as the `Downstream Oil Industry
Deregulation Act of 1998,' provides that [T]that `when the public interest so requires, the President
may accelerate the start of full deregulation upon the recommendation of the Department of Energy
(DOE) and the Department of Finance (DOF) when the prices of crude oil and petroleum products in
the world market are declining and the value of the peso in relation to the US dollar is stable, taking
into account relevant trends and prospects:   Provided, further, That the foregoing provision
notwithstanding, the five (5)-month Transition Phase shall continue to apply to LPG, regular gasoline
and kerosene  as socially-sensitive petroleum  products   and said  petroleum products shall be
covered by the automatic pricing mechanism during the said period;'

"WHEREAS, pursuant to the joint recommendation of the Department of Energy and the Department of
Finance, and in the interest of the consuming public, recent developments favor the acceleration of the
start of full deregulation of the downstream oil industry because: (i) the prices of crude oil and
petroleum products in the world market are beginning to be stable and on a downtrend since January

39
1998; and (ii) the exchange rate of the peso in relation to the US dollar has been stable for the past
three months, averaging at around P40.00 to one US dollar;

"WHEREAS, Executive Order No. 377 dated 31 October 1996 provides for an institutional framework for
the administration of the deregulated industry by defining the functions and responsibilities of various
government agencies;

"WHEREAS, pursuant to Republic Act No. 8479, the deregulation of the industry will foster a truly
competitive market which can better achieve the social policy objectives of fair prices and adequate,
continuous supply of environmentally-clean and high quality petroleum products;

"NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Philippines, by the powers vested in me by
law, do hereby declare the full deregulation of the downstream oil industry; provided, however, that
LPG, regular gasoline and kerosene shall be covered by the Automatic Pricing Formula pursuant to R.A.
No. 8479."[13]

The implementing guidelines for the acceleration of full deregulation of the industry, set forth in E.O.
471, required the concurrence of two conditions, viz.: (1) the downtrend of prices of oil and petroleum
products, and (2) stability of exchange rate of peso in relation to US dollar, taking into account
relevant trends and prospects.

However, E.O. 471 carried an additional proviso, the transition phase was continued for LPG, regular
gas and kerosene.  These socially sensitive products continued to be covered by the automatic pricing
mechanism until July of 1998.  Only then was full deregulation of the industry effected, and the
automatic pricing mechanism was also lifted for LPG, regular gas and kerosene.

Turning now to herein petition, Congressman Enrique Garcia raised the following issues to assail the
provision implementing full deregulation of the oil industry:

I. SECTION 19 OF R.A. NO. 8479 which provides for full deregulation five (5) months or earlier
following the effectivity of the law, is glaringly pro-oligopoly, anti-competition and anti-
people, and is therefore patently unconstitutional for being in gross and cynical contravention
of the constitutional policy and command embodied in Article XII, Section 19 of the 1987
Constitution against monopolies and combinations in restraint of trade.

II. Said Section 19 of R.A. No. 8479 is glaringly pro-oligopoly, anti-competition and anti-people,
for the further reason that it palpably and cynically violates the very objective and purpose of
R.A. No. 8479, which is to ensure a truly competitive market under a regime of fair prices.

   

III. Said Section 19 of R.A. No. 8479, being glaringly pro-oligopoly, anti-competition and anti-
people, being patently unconstitutional and being palpably violative of the law's policy and
purpose of ensuring a truly competitive market under a regime of fair prices, is a very grave
and grievous abuse of discretion on the part of the legislative and executive branches of
government.

   

IV. Premature full deregulation under Section 19 of R.A. No. 8479 may and should therefore be
declared null and void even as the rest of its provisions remain in force, such as the
transition phase or partial deregulation with price controls that ensures the protection of the
public interest by preventing the big 3 oligopoly's price-fixing and overpricing.

40
These issues may be synthesized into one:  Whether or not the full implementation of deregulating the
downstream oil industry as provided in Section 19 of R.A. 8479 violates the Constitutional mandate of
free competition in a liberalized oil industry under Section 19, Article XII of the 1987 Philippine
Constitution?

Petitioner Garcia principally faults Section 19 of the new R.A. 8479 as well as E.O. 471 now for
violating the constitutional prohibition against monopoly, and being anti-competition.

Petitioner claims that there was a premature full deregulation under Section 19 of R.A. 8479.  He
protests the acceleration of the full implementation of deregulation decreed under E.O. 471.  Petitioner
insists that the short transition period is pro-oligopoly, anti-competition and anti-people and is patently
unconstitutional because the period is too short to establish true competition in the local oil industry.  
True competition, he claims, exists only when there can be a sizable number of players, and at
present, the new players comprise only 3% of the market share which does not put up real competition
against the "Big Three" oil companies (Caltex, Shell and Petron).  What he suggests is to prolong the
transition phase or partial deregulation with price controls while the big oil companies are still
dominating the market, to ensure the protection of the public interest and prevent the big three
oligopolies from fixing the price or overpricing.  He further contends that the automatic oil pricing
mechanism will enable the domestic price of petroleum products to approximate and promptly reflect
the price of oil in the international market. He also stressed that new players may come under an
indefinite or open-ended transition phase.

Commenting on the petition, respondents claim that the propriety of full deregulation involves the
wisdom of Congress and is therefore, a non-justiciable issue.  They counter petitioner's arguments by
pointing out that the shortening of the transition period and acceleration of full deregulation were
decreed pursuant to the joint recommendation of the DOE and DOF, based on the concurring
conditions of a downtrend of crude oil in world market and the stability of the exchange rate of P40.00
to US$1.

The respondents argue that the short transition period is not violative of the Constitution because the
new players were given until July 1998 to set up their businesses as they have in fact, and they have
captured at least 3% of the total oil market.

Respondent Petron asserts that full deregulation protects the public from the greed and exploitation of
business.  Petron further contends that competition can be ushered in only with the certainty of price
deregulation and the short transition period would guarantee the investors that within a manageable
period, they would be able to set prices, taking into account their investment and operating costs. It
claims an indefinite transition period would discourage new investors because the new players had
hoped that within a reasonable time, price regulation would be lifted.

The Solicitor General filed a comment on behalf of the public respondents, interposing economic
arguments that price regulation reduces economic efficiency and is prejudicial to the public. [14] Public
respondents assert that the acceleration of full deregulation is based on existing conditions and sound
economic theory.

Respondent Shell filed a rejoinder, stating that to prolong the transition period will revive the
automatic pricing mechanism which means that it will only replace the mode of price regulation by still
another regulatory scheme.  It argues that if Sec. 19 of R.A. 8479 were to be struck down, full
deregulation will never take place and it would render the entire law different from what was passed by
Congress.

Petitioner counters that he is questioning the constitutionality rather than the wisdom of Sec. 19 of
R.A. 8479; it is pro-oligopoly, hence patently unconstitutional.  Petitioner further avers that
condemnation against monopolies and combination in restraint of trade should be given legal sanction
by the Court.  Petitioner maintains that the nullification of Sec. 19 of R.A. 8479 will result in partial
41
deregulation, where there will be no regulation as regards the importation of petroleum products and
the establishment of gas station, but oil pricing would be regulated based on the Automatic Pricing
Mechanism.

Note that during the review of R.A. 8180 by the Court in G.R. No. 127867, petitioners Edcel C.
Lagman, Arroyo, et al., likewise questioned the constitutionality of Section 15 of R.A. No. 8180 [15] as
well as E.O. No. 392[16] which provided for the implementation of full deregulation.  The Court decreed
thus:

". . . Full deregulation at the end of March 1997 is mandatory and the Executive has no discretion to
postpone it for any purported reason.  Thus, the law is complete on the question of the final date of full
deregulation. The discretion given to the President is to advance the date of full deregulation before
the end of March 1997. Section 15 lays down the standard to guide the judgment of the President ---
he is to time it as far as practicable when the prices of crude oil and petroleum products in the world
market are declining and when the exchange rate of the peso in relation to the US dollar is stable.

xxx

"It ought to follow that the argument that E.O. No. 392 is null and void as it was based on
indeterminate standards set by R.A. 8180 must likewise fail. If that were all to the attack against the
validity of E.O. No. 392, the issue need not further detain our discourse."[17]

In G.R. No. 127867, Congressman Garcia filed an Urgent Motion for Partial Reconsideration from the
November 5, 1997, decision of the Court. He sought to strike down only the premature full
deregulation but maintain partial deregulation under R.A. No. 8180 with price controls and price
mechanism based on Singapore Posted Prices. The Court resolved the issue this way:

"We shall first resolve petitioner Garcia's linchpin contention that the full deregulation decreed by R.A.
No. 8180 to start at the end of March 1997 is unconstitutional.  For prescinding from this premise
petitioner suggests that `we simply go back to the transition period under R.A. No. 8180.' Under the
transition period, price control will be revived through the automatic pricing mechanism based on
Singapore Posted Prices.  The Energy Regulatory Board x x x would play a limited and ministerial role
of computing the monthly price ceiling of each and every petroleum fuel product, using the automatic
pricing formula. x x x

We are not impressed by petitioner Garcia's submission.  Petitioner has no basis in condemning as
unconstitutional per se the date fixed by Congress for the beginning of the full deregulation of the
downstream oil industry. x x x  The choice of March 1997 as the date of full deregulation is a judgment
of Congress and its judgment call cannot be impugned by this Court." [18]

Now in the present petition, Garcia insists on his old plea for a return only to partial deregulation of the
downstream oil industry, wherein the main features of deregulation would be permitted but the retail
prices of oil products would still be regulated through an Automatic Pricing Mechanism.

However, I find his contentions to be lacking legal basis, even if his proposal appears to be expedient,
or even beneficial, especially to the poor. As the Court said in Tañada vs. Tuvera,[19] "[T]his Court is
not called upon to rule on the wisdom of the law or to repeal it or modify it if we find it impractical.  
That is not our function.  That function belongs to the legislator.  Our task is merely to interpret and
apply the law as conceived and approved by the political departments of the government in accordance
with the prescribed procedure."[20]

For if we allow an open-ended transition period to maintain government pricing regulation, we would
have suspended the much-needed liberalization of the downstream oil industry.  It would certainly run
counter to the government's policy of allowing free interplay of market forces, with minimal
government supervision.  In fact, it could defeat full deregulation to ensure fair competition in the

42
downstream oil industry, where new and prospective players are on even level playing field with the
Big Three.

Furthermore, to base the implementation of full deregulation on the presence of a sizable number of
new investors, as petitioner would want us to do, would be to legislate a floating provision dependent
on the happening of a contingent event.  To do so, would be to undermine the very purpose of the law,
which is to liberalize and deregulate the downstream oil industry in order to ensure a truly competitive
market under a regime of fair prices, adequate and continuous supply, environmentally clean and high-
quality petroleum products.

Consequently, to heed the petitioner's prayer, this Court would have to legislate, a power granted only
to Congress.  The operation of a statute may be duly suspended only by authority of the legislature.
[21]
 Indeed, a suspension of a valid statute must rest upon legislative action; [22] it may not be effected
solely by a judicial act.[23] Clearly it is a policy decision of the legislative and executive departments in
whose turf we must not tread, under the principle of separation of powers. The term "political
question" connotes what it means in ordinary parlance, namely, a question of policy. [24] It refers to
"those questions which, under the Constitution, are to be decided by the people in their sovereign
capacity, or in regard to which full discretionary authority has been delegated to the legislative or
executive branch of the government."[25] It is concerned with issues dependent upon the wisdom, not
legality, of a particular measure. [26] The judiciary does not directly settle policy issues.  Under our
system of government, policy issues are within the domain of the political branches of government and
of the people themselves as the repository of all state powers.[27]

In PLDT vs. National Telecommunications Commission,[28] the ultimate considerations cited in matters

affecting vital industries, are the public need, public interest, and the common good. In that case, the
Court said:

"Free competition in the industry may also provide the answer to a much-desired improvement in the
quality and delivery of this type of public utility, to improved technology, fast and handy mobile
service, and reduced user dissatisfaction."[29]

Similarly, the above-mentioned considerations could undergird the nation's energy and other economic
policies. The liberalization of the oil industry is a reform program initiated by Congress to free the
government from the obligation of infusing funds to subsidize increases in the prices of oil products.  
Such funds may now be utilized for other much needed programs with a public purpose.

Well-established is the principle that every law has in its favor the presumption of constitutionality.
[30]
 To declare a law unconstitutional, the repugnancy of that law to the Constitution must be clear and
unequivocal.  But we recognize that even if a law is aimed at the attainment of some public good, still
its provisions cannot infringe upon constitutional rights. [31] That infringement, however, must be proved
and established persuasively to invalidate a provision of a law, if not the entire law itself.

Petitioner ought to have demonstrated the need for the extension of the transition period.  But, in fact,
he could not downplay the DOE report that new players accounted for a sizable share of the market,
some 18.1 percent of the total product imports, and competing companies are keen in joining the
Philippine oil industry since the full implementation of deregulation.  And, as stressed by the public
respondents in the rejoinder dated January 7, 1999:

"Since 1996, new players have taken a significant share in the market, to wit: (a) seven (7) new
players have entered the downstream oil industry before RA No. 8180; (b) during the effectivity of RA
No. 8180, twenty eight (28) new players have engaged in a number of downstream oil industry
activities; and (c) three (3) new players have engaged in fuel bulk marketing, while two (2) new
players have started to establish gasoline service stations immediately before and during the effectivity
of RA No. 8479.  At the same time, many more companies have indicated their intention to enter the
downstream oil industry business."[32]

43
The new players, according to industry experts, are gradually making a dent in the local market and
their share is expected to surge in a few years when their retail stations are established. [33]

However, the presence or entry of numerous players in the oil industry is not a condition precedent
before a full deregulated petroleum industry could be had.  But we recognize that it is precisely the
implementation of full deregulation that would serve to entice new players to compete against the so-
called Big Three. Hopefully, this move would prevent the powerful oil companies from manipulating
prices, to the prejudice of the consumers and the public in general.

The petitioner strongly manifested his fears concerning pernicious consequences of total lifting of price
control in the oil industry.  His main concern is that the government might be helpless in case the Big 3
(Shell, Petron and Caltex) overprice their petroleum products.  But the people are not without legal
recourse.  The public can manifest outright objections to overpricing and report to the Department of
Energy any unreasonable increase in the prices of these oil products.  The monitoring power of the
DOE is embodied in Sec. 14 of R.A. 8479, and its implementing rule, Section 18 of DOE Circular No.
98-03-004, thus:

"R.A. 8479, Sec. 14 -- Powers and Functions of the DOE and DOE Secretary:

"Monitoring -

"a) The DOE shall monitor and publish daily international crude oil prices, as well as follow the
movements of domestic oil prices.  It shall likewise monitor the quality of petroleum products and stop
the operation of business involved in the sale of petroleum products which do not comply with the
national standards of quality that are aligned with the national standards/protocols of quality. . . .

xxx

"d) Any report from any person of an unreasonable rise in the prices of petroleum
products shall be immediately acted upon.  For this purpose, the creation of DOE-DOJ Task Force is
hereby mandated to determine within thirty (30) days the merits of the report and initiate the
necessary actions warranted under the circumstances:  Provided that nothing herein shall prevent the
said task force from investigating and/or filing the necessary complaint with the proper court or
agency motu propio."

Department Circular No. 98-03-004, Sec. 18 -- Powers and Functions of the DOE and DOE Secretary

"Monitoring --

"The DOE shall monitor the following pursuant to Section 14 of the Act. Any misrepresentation,
mislabeling, concealment or fraud, shall be subject to penalties under existing applicable laws.

a. Prices

"The DOE shall monitor and publish international oil prices as well as follow the movement of domestic
oil prices.

(1)  Price Display Boards

For the convenience of the public, all retailers of petroleum products shall display the prices of each
type of petroleum product sold in gasoline stations in prominently installed price display boards with
backgrounds preferably conforming to the color coding scheme for the product, such as : green for
Unleaded Premium Gasoline, red for Premium Low Lead Gasoline, orange for Regular Gasoline, yellow
for Diesel Fuel, and white for Kerosene.  In the case of LPG (which has no product color), the price
display board may be light blue in color.  The numeric entries in these boards shall be at least six (6)
inches in height.

44
The price display boards shall be properly installed and labeled not later than June 30, 1998.  Failure to
comply with this requirements shall be penalized pursuant to Section 24 of the Act.

(2)  Unreasonable Rise in Prices

Any report from any person of an unreasonable rise in the prices of petroleum products shall be
immediately acted upon by the DOE-DOJ Task Force in accordance with Section 17 of this IRR.  The
said Task force shall determine within thirty (30) days the merits of the report and shall initiate the
necessary actions warranted under the circumstances."

A calculus of fear and pessimism, however, does not justify the remedy petitioner seeks: that we now
overturn a law enacted by Congress and approved by the Chief Executive.  The Court must act on valid
legal reasons that will explain why we should interfere with vital legislation. [34] To strike down a
provision of law we need a clear showing that what the Constitution prohibits, the statute has allowed
to be done.[35] Since there is no clear showing that Section 19 of R.A. 8479 has violated the
constitutional prohibition against monopolies and combinations in restraint of trade, I vote that the
present petition be DISMISSED.

EN BANC

[ G.R. No. 231989, September 04, 2018 ]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ROMY LIM Y MIRANDA, ACCUSED-

APPELLANT.

DECISION

PERALTA, J.:

On appeal is the February 23, 2017 Decision [1] of the Court of Appeals (CA) in CA-G.R. CR HC No.
01280-MIN, which affirmed the September 24, 2013 Decision [2]  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:

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]

On even date, Lim, together with his stepson, Eldie Gorres y Nave (Gorres), was also indicted for
illegal sale of shabu, committed as follows:

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,
conspiring, confederating together and mutually helping one another, without being authorized by law
to sell, trade, administer, dispense, deliver, give away to another, distribute, dispatch in transit or
transport any dangerous drugs, did then and there willfully, unlawfully, criminally and knowingly sell
and/or offer for sale, and give away to a PDEA Agent acting as poseur-buyer One (1) heat-sealed
45
transparent plastic sachet containing Methamphetamine hydrochloride, locally known as 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 Hundred Pesos (Php500.00) consisting of one piece five hundred peso bill, with
Serial No. FZ386932, which was previously marked and recorded for the purpose of the buy-bust
operation.

Contrary to Section 5, Paragraph 1, Article II of Republic Act No. 9165.[4]

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]

The prosecution presented Intelligence Officer (IO) 1 Albert Orellan, IO1 Nestle Carin, IO2 Vincent
Orcales, and Police Senior Inspector (PSI) Charity Caceres. Aside from both accused, Rubenia Gorres
testified for the defense.

Version of the Prosecution

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 (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,
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 IO1
Carin were assigned as the team leader, the arresting officer/back-up/evidence custodian, and
the poseur-buyer, respectively. The team prepared a P500.00 bill as buy-bust money (with its serial
number entered in the 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 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, 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.

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. IO1
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.

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 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

46
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 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) Bajas[7] 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:

47
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.

48
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 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

49
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 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 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]

50
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 enforcement 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.

51
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:

(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.
Ramos[33] 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.
52
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 x x x Before going to the house of the accused, why did you not contact a barangay official to
witness the operation?

A There are reasons why we do not inform a barangay official before our operation, Sir.

Q Why?

A 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:

1. 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.

2. 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.

53
 3. 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.

4. 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 REVERSED and SET ASIDE. Accordingly, accused-appellant Romy Lim y
Miranda is ACQUITTED on reasonable doubt, and is ORDERED IMMEDIATELY RELEASED from
detention, unless he is being lawfully held for another cause. Let an entry of final judgment be issued
immediately.

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 taken.

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 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.

Leonardo-De Castro, C.J., Carpio, Bersamin, Perlas-Bernabe,  Tijam, Reyes, A., Jr., Gesmundo,
and Reyes, Jr. J., JJ., concur.

Del Castillo, J., On wellness leave

Leonen, and Caguioa, JJ., See separate concurring opinion.

Jardeleza, J., no part prior OSG action.

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.

54
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.

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.

55
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:

(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. Nandi[3]  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  Midarasa[5] 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]

56
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. People[8]

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.

57
Even the customary presumption of regularity in the performance of official duties cannot
suffice. People v. Kamad[14] 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.

....

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 that 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.

58
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)
59
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 SEC. 21. Custody and Disposition of Confiscated,
Confiscated, Seized, and/or Surrendered Seized, and/or Surrendered Dangerous Drugs, Plant
Dangerous Drugs, Plant Sources of Dangerous Sources of Dangerous Drugs, Controlled Precursors
Drugs, Controlled Precursors and Essential and Essential Chemicals, Instruments/Paraphernalia
Chemicals, Instruments/Paraphernalia  and/or and/or Laboratory Equipment. -
Laboratory Equipment.

The PDEA shall take charge and have custody of The PDEA shall take charge and have custody of all
all dangerous drugs, plant sources of dangerous dangerous drugs, plant sources of dangerous drugs,
drugs, controlled precursors and essential controlled precursors and essential chemicals, as well
chemicals, as well as instruments/paraphernalia as instruments/paraphernalia and/or laboratory
and/or laboratory equipment so confiscated, equipment so confiscated, seized and/or surrendered,
seized and/or surrendered, for proper for proper disposition in the following manner:
disposition in the following manner:
(1) The apprehending team having initial custody and
(1) The apprehending team having initial control of the dangerous drugs, controlled precursors
custody and control of the drugs shall, and essential chemicals, instruments/paraphernalia
immediately after seizure and confiscation, and/or laboratory equipment 

physically inventory shall, immediately after seizure and confiscation, 

and photograph the same conduct a physical inventory of the seized items 

in the presence of the accused or the person/s and photograph the same
from whom such items were confiscated and/or
seized, or his/her representative or counsel, in the presence of the accused or the person/s from
whom such items were confiscated and /or seized, or
a representative from the media and the his/her representative or counsel,
Department of Justice (DOJ), and any elected
public official 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;   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;

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
60
 seizures and custody over said items. 

Section 21(1) was simultaneously relaxed and made more specific by Republic Act No. 10640.

It was relaxed with respect to the persons required to be present during the physical inventory and
photographing of the seized items. Originally under Republic Act No. 9165, the use of the conjunctive
'and' indicated that Section 21 required the presence of all of the 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":

First, a representative from the media;

Second, representative from the Department of Justice (DOJ); and

Third, any elected public official.

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.

Section 21(1), as amended, now includes a specification of locations where the physical inventory and
taking of photographs must be conducted (n.b., it uses the mandatory "shall"). It now includes the
following proviso:[22]

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 )

Lescano v. People[23] summarizes Section 21(1)'s requirements:

As regards the items seized and subjected to marking, Section 21(1) of the Comprehensive Dangerous
Drugs Act, as amended, requires the performance of two (2) actions: physical inventory and
photographing. Section 21(1) is specific as to when and where these actions must 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 office
of the apprehending officer/team, whichever is practicable."

Moreover, Section 21(1) requires at least three (3) persons to be present during the physical inventory
and photographing. These persons 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 representative of the National Prosecution
Service, a representative of the media may be present in his or her place. [24]

Set against the strict requirements of Section 21(1) of Republic Act No. 9165, [25] this case screams of
glaring infringements.

"the apprehending team having initial custody and control of the drugs shall, immediately
after seizure and confiscation, physically inventory and photograph the same"

61
The prosecution's witnesses gave contradicting testimonies on the place where the physical inventory
was conducted. Intelligence Officer 1 Albert Orellan (Officer Orellan), the arresting officer, testified that
he marked the seized items in the house of Romy Lim:

Pros. Vicente: (continuing to the witness [Officer Orellan] )

Q How did you know that the one bought and the one searched were not interchanged?

A I marked the item I recovered from Romy Lim, Sir.

Q Where did you mark it Mr. Witness, in what place?

A At their house, Sir.[26] (Emphasis supplied )

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.
Because I was present, sir.

ACP VICENTE, JR.: (continuing to the witness [Officer Carin] )

   

Q You said that Romy Lim handed the sachet of shabu to you, what happened to that sachet of
shabu, Ms. Witness?

A I turned over it (sic) to IOl Orellan during the inventory.

Q Where did he conduct the inventory?

A At our office.

Q Where?

A At the PDEA Office, sir.

Q ... How did you know that?

A Because I was there sir, during the inventory.

Q Then, what did he do with the sachet of shabu Ms. Witness?

A He put a marking.

Q How did you know?

A Because I was present, sir.[27] (Emphasis supplied)

ACP VICENTE, JR.: (To the witness [Officer Orcales] )

Q How did Agent Orellan handle the evidence? The drugs he recovered and the buy-bust item? And
what did he do with it?

A He made an inventory.

Q How about the marking?

A He made markings on it.

Q How did you know?

62
A I supervised them.

Q And where did Agent Orellan made the inventory?

A 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 suspects in [their] office and conducted inventory." [29]

The taking of pictures was likewise not made immediately after seizure and confiscation. In their
separate testimonies, Officers Orellan and Carin stated:

Pros. Vicente: (continuing to the witness (Officer Orellan])

Q What else did you do at the office, Mr. Witness, did you take pictures?

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.

Court:

These pictures IO1 Orellan were taken at the office?

A Yes, Your Honor.

Court:

No pictures at the house of the accused?

A None, Your Honor.[30] (Emphasis supplied)

ACP VICENTE, JR.: (continuing to the witness [Officer Carin])

....

   

Q Aside from markings what else did you do at the office?

A I took pictures during the inventory .[31]  (Emphasis supplied)

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]

During cross-examination, Officer Carin reiterated that the inventory and the taking of photographs
were done in their office and not in Romy Lim's house.[34]

"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

Moreover, not one of the third persons required by Section 21(1) prior to its amendment-"a
representative from the media and the Department of Justice (DOJ), and any elected public official"-
was present during the physical inventory and taking of photographs. Instead, only accused-appellant
Romy Lim and accused Eldie Gorres were present.

"who shall be required to sign the copies of the inventory and be given a copy thereof'

63
Since not one of the three required personalities were present during the operation, the inventory was
not signed. Even the two accused were not given a chance to sign the shabu sachets that were
allegedly found in their possession:

Atty. Demecillo: (continuing to the witness [Officer Orellan])

Q In this Inventory, no signature ofthe two accused? 

A The accused did not sign, Sir.

Q Not also sign[ed] by a man from the DOJ?

A Yes, Sir.

Q Also from the media?

A None, Sir.

Q Also by an elected official?

A None, Sir.[35]

These infringements are fatal errors. The police operatives' conduct failed to dispel all reasonable
doubt on the integrity of the shabu supposedly obtained from accused-appellant. The buy-bust team
failed to account for the handling and safeguarding of the shabu from the moment it was purportedly
taken from accused-appellant.

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 are the exact same items ultimately adduced as evidence
before courts. People v. Nandi[36] 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 investigating officers to forensic chemists; and, from forensic chemists to courts. The endpoints in
each link (e.g., the accused and the apprehending officer in the first link, the forensic chemist and the
court in the fourth link) are preordained. What is precarious is not each 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 immediately after seizure, exactly where the seizure was done (or at a
location as practicably close to it) minimizes, if not eliminates, room for adulteration or the planting of
evidence. The presence of the accused (or a representative) and of third-party witnesses, coupled with
their attestations on the written inventory, ensures that the items delivered to the investigating officer
are the items which have actually 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 Dangerous Drugs Act. Indeed, the requirement that the
inventory and photographing be done "immediately after the seizure and confiscation" necessarily
means that the required witnesses must also be present during the seizure or confiscation. People v.
Mendoza[37] confirms this and characterized the presence of these witnesses as an "insulating presence
[against] the evils of switching, 'planting' or 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 elected public official during the
seizure and marking of the sachets of shabu, the evils of switching, "planting" or contamination of the
evidence that had tainted the buy-busts conducted under the regime of RA No. 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 sachets of shabu that were evidence herein of the corpus delicti, and

64
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 present during the arrest, seizure, physical inventory and taking of
pictures.

The Court should not lose sight of how accused-appellant's apprehension was supposedly occasioned
by a buy-bust operation. This 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 team [41] 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 happened from the time they were informed by
their confidential informant at 8:00pm up to the time they were dispatched for the operation at around
9:45 pm.[43]

While the team managed to secure preliminaries, it utterly failed at observing Section 21(1)'s
requirements. Certainly, if the buy-bust team was so fastidious at preparatory tasks, it should have
been just as diligent with observing specific statutory demands that our legal system has long
considered to be critical in securing convictions. It could not have been bothered to even have one
third-party witness present.

With the buy-bust team's almost two-hour briefing period and the preparation of the necessary
documents, the prosecution appears to have been diligently prepared. How the buy-bust team can be
so lax in actually carrying out its calculated operation can only raise suspicions. That diligence is the
most consummate reason for not condoning the buy-bust team's inadequacies.

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.

Atty. Demecillo: (continuing to the witness [Officer Orellan] )

Q Who was the person who received the drugs you delivered in the crime lab?

A 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 laboratory, Sir.

Q You know Forensic Chemist Charity Peralta Caceres?

A I only heard her name to be one of the forensic chemists in the crime lab, Sir.

Q Usually you have not seen her?

A I saw her but we were not friends, Sir.

Q But that evening of October 20, she was not the very person who received the sachet of shabu for
examination?

A Only the receiving clerk, Sir.

Q Not personally Caceres?

A No, Sir.

Q After delivering these sachets of shabu, you went home?

A I went back to our office, Sir.

Q From there, you did not know anymore what happened to the sachet of shabu you delivered for
65
 examination?

A I don't know, Sir.[44]

His statements were corroborated by the testimony of Officer Orcales who stated that he was with
Officer Orellan when the latter gave the seized items to the crime laboratory personnel. He confirmed
that the person who received it was not Chemist Caceres and that he did not know who it was. [45]

This break in the chain of custody opens up the possibility of substitution, alteration, or tampering of
the seized drugs during the turn over 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 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.

VI

Section 21(1), as amended, now also includes a proviso that leaves room for noncompliance under
"justifiable grounds":

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. (Emphasis
supplied)

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 over said items[.]
(Emphasis supplied)

To sanction non-compliance, two requisites must be satisfied. First, the prosecution must identify and
prove "justifiable grounds." Second, it must show that, despite non-compliance, the integrity and
evidentiary value of the seized items were properly preserved. To satisfy the 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 in 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])

     

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....

Q Before going to the house of the accused, why did you not contact a barangay official to witness
the operation?

A There are reasons why we do not inform a barangay official before our operation, Sir.

Q Why?

A 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

67
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 let these ideals fall by the
wayside, jettisoned in favor of considerations of convenience and to facilitate piecemeal convictions for
ostensible wrongdoing.

Requiring proof beyond reasonable doubt hearkens to our individual consciences. I cannot accept that
the severe consequences arising from criminal conviction will be meted upon persons whose guilt could
have clearly been established by police officers' mere adherence to 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.

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 SET ASIDE. Accused-appellant Romy Lim y Miranda must
be ACQUITTED for failure of the prosecution to prove his guilt beyond reasonable doubt.

SEPARATE CONCURRING OPINION

CAGUIOA, J.:

I concur.

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 of R.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

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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)

69
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 (1) 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

Thus, it is compliance with this most fundamental 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
70
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 thus encourage 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 - and 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

71
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
x 21 (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:

1. 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.

2. 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.

72
3. 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.

4. 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 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. 24

Verily, none of the above reasons - or any such justifications similar to the aforementioned - was
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 of time. 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.

73
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 of irregularity. 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 SP02 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
SP02 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 Manual 32 (PNPDEM), the conduct of buy-
bust operations requires the following:

ANTI-DRUG OPERATIONAL PROCEDURES

xxxx

V. SPECIFIC RULES

xxxx

B. Conduct of Operation: (As far as practicable, all operations must be officer led)

1. Buy-Bust Operation - in the conduct of buy-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;

74
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 inventory of the seized evidence by means of weighing and/or physical
counting, as the case may be;

1. 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
Procedures 33 applicable during the pre-amendment of Section 21 provides:

37.3 Handling, Custody and Disposition of Evidence

a. In the handling, custody and disposition of evidence, the provision of Section 21, RA 9165
and its IRR shall be strictly observed.

b. 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.

c. 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

75
items are properly preserved by the apprehending officer/team, shall not render void and invalid such
seizures of and custody over said items.

d. 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 Investigation 34 (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.l)(b)(6) and (3.l)(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;
76
(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.1âwphi1

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 of the 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.l)(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.

SECOND DIVISION

March 14, 2018

G.R. No. 230070

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee

vs.
NESTOR AÑO y DEL REMEDIOS, Accused-Appellant

DECISION

77
PERLAS-BERNABE, J.:

Assailed in this ordinary appeal1 is the Decision2 dated December 4, 2015 of the Court of Appeals (CA)
in CA-G.R. CR-H.C. No. 06127, which affirmed the Decision 3 dated October 1, 2012 of the Regional
Trial Court of San Mateo, Rizal, Branch 76 (RTC) in Criminal Case No. 11427 finding accused-appellant
Nestor Año y Del Remedios (Año) guilty beyond reasonable doubt for violating Section 5 of Republic
Act No. (RA) 9165,4 otherwise known as the "Comprehensive Dangerous Drugs Act of 2002."

The Facts

This case stemmed from an Information 5 filed before the RTC, charging Año with violation of Section 5,
Article II of RA 9165, the accusatory portion of which reads:

Criminal Case No. 11427

That on or about the 3rd day of August 2009 in the Municipality of San Mateo, Province of Rizal,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused, without
having been authorized by law, did then and there willfully, unlawfully and knowingly sell, deliver and
give away to poseur buyer, P02 Ruel T. Ayad, 0.03 gram of white crystalline substance contained in
one (1) heat-sealed transparent plastic sachet which substance was found positive to the tests for
Methamphetamine Hydrochloride, also known as "shabu", a dangerous drug, in consideration of the
amount of Php.200.00, in violation of the above-cited law.

CONTRARY TO LAW.6

The prosecution alleged that at around five (5) o’clock in the afternoon of August 3, 2005 and after
receiving information about Año’s drug activities at Daangbakal, Guitnangbayan II, Police Officer (PO)
2 Ruel T. Ayad (P02 Ayad), PO1 Aldwin Ortilla (POl Ortilla), and POl Jenesis A. Acuin 7 (PO1 Acuin)
formed a buy-bust team designating P02 Ayad as the poseur-buyer, with POl Ortilla and PO1 Acuin as
back-ups, and marked two (2) ₱100.00 bills to be used in the operation. 8 Thereafter, the team headed
to the house of Año where P02 Ayad knocked on the door and upon seeing Año, whispered that he
"wants to score" worth P200.00. Año replied that he has drugs with him and gave P02 Ayad a
transparent plastic sachet, while the latter simultaneously handed the marked money as payment. As
Año placed the money inside his pocket, P02 Ayad introduced himself as a policeman, causing Año to
flee. Fortunately, P02 Ayad caught Año and asked him to empty his pockets which produced the two
(2) ₱100.00 bills. Due to the commotion caused by Año's relatives who were preventing his arrest, the
team moved at a distance of around 100 meters from the place of arrest, marked the confiscated
sachet, and completed the inventory thereat. Barangay Captain Leo S. Buenviaje (Brgy. Captain
Buenviaje) witnessed and signed the Inventory of Seized/Confiscated Items, 9 photographs were also
taken in the presence of Año, P02 Ayad, and PO1 Acuin. 10 On the same day, P02 Ayad delivered the
seized sachet to the Crime Laboratory where it was turned over to Police Inspector Forensic Chemist
Beaune V. Villaraza (FC Villaraza) for examination. In Laboratory Report No. D-198-09, 11 FC Villaraza
confirmed that the seized sachet was positive for methamphetamine hydrochloride or shabu, a
dangerous drug.12

Upon arraignment, Año pleaded not guilty and denied the charges leveled against him. He claimed that
on said date, he was at home celebrating the 4 th birthday of his nephew when suddenly, three police
officers whom he identified to be P02 Ayad, PO1 Ortilla, and PO1 Acuin, forcibly arrested him and
brought him to the police station for inquiry. The following day, he learned that he was being charged
of drug pushing.13

The RTC Ruling

In a Decision14 dated October 1, 2012, the RTC found Año guilty beyond reasonable doubt of Illegal
Sale of Dangerous Drugs under Section 5 of RA 9165, sentencing him to suffer the penalty of life
imprisonment and a fine of ₱500,000.00.15
78
The RTC found all the elements for the prosecution of sale of dangerous drugs present, noting that the
identity of Año as the seller of the illegal drug was clearly established when he was arrested  in
fiagrante delicto during a buy-bust operation.16

Aggrieved, Año elevated his conviction before the Court of Appeals (CA). 17

The CA Ruling

In a Decision18 dated December 4, 2015, the CA upheld the RTC ruling, 19 likewise finding that all the
elements constituting the crime of Illegal Sale of Dangerous Drugs were present. Moreover, it ruled
that the apprehending officers duly complied with the chain of custody rule under Section 21 (a),
Article II of the Implementing Rules and Regulations (IRR) of RA 9165, as P02 Ayad testified in detail
the links in the chain of custody of the seized drug from the time of its confiscation until its
presentation in court as evidence.

Hence, this appeal.

The Issue Before the Court

The issue for the Court's resolution is whether or not Año is guilty beyond reasonable doubt of Section
5, Article II of RA 9165.

The Court’s Ruling

The appeal is meritorious.

At the outset, it must be stressed that an appeal in criminal cases opens the entire case for review
and, thus, it is the duty of the reviewing tribunal to correct, cite, and appreciate errors in the appealed
judgment whether they are assigned or unassigned. 20 "The appeal confers the appellate court full
jurisdiction over the case and renders such court competent to examine records, revise the judgment
appealed from, increase the penalty, and cite the proper provision of the penal law." 21

Here, Afio was charged with the crime of Illegal Sale of Dangerous Drugs, defined and penalized under
Section 5, Article II of RA 9165. In order to secure the conviction of an accused charged with Illegal
Sale of Dangerous Drugs, the prosecution must prove: (a) the identity of the buyer and the seller, the
object, and the consideration; and (b) the delivery of the thing sold and the payment.22 It is likewise
essential for a conviction that the drugs subject of the sale be presented in court and its identity
established with moral certainty through an unbroken chain of custody over the same. In cases like
this, the prosecution must be able to account for each link in the chain of custody over the dangerous
drug from the moment of seizure up to its presentation in court as evidence of the corpus delicti.23

In this relation, Section 21, Article II of RA 9165 provides the chain of custody rule, outlining the
procedure that police officers must follow in handling the seized drugs in order to ensure that their
integrity and evidentiary value are preserved.24 Under the said section, prior to its amendment by RA
10640,25 the apprehending team shall, among others, immediately after seizure and confiscation
conduct a physical inventory and take photographs of the seized items in the presence of the
accused or theperson from whom such items were seized, or his representative or counsel, a
representative from the media and the Department of Justice (DOJ), and any elected public
official who shall then sign the copies of the inventory and be given a copy of the same; and the
seized drugs must be turned over to the PNP Crime Laboratory within twenty-four (24) hours from
confiscation for examination purposes.26 In the case of People v. Mendoza,27 the Court stressed
that "[w]ithout the insulating presence of the representative from the media or the [DOJ], or
any elected public official during the seizure and marking of the [seized drugs], the evils of
switching, ‘planting’ or contamination of the evidence that had tainted the buy-busts conducted
under the regime of [RA] 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 [said drugs] that

79
were evidence herein of the  corpus delicti, and thus adversely affected the trustworthiness
of the incrimination of the accused. Indeed, the x x x presence of such witnesses would have
preserved an unbroken chain of custody."28

The Court, however, clarified that under varied field conditions, strict compliance with the requirements
of Section 21of RA9165 may not always be possible. 29 In fact, the Implementing Rules and Regulations
(IRR) of RA 9165 - which is now crystallized into statutory law with the passage of RA 1064030-
provide that non-compliance with the requirements of Section 21, Article II of RA 9165 -
under justifiable grounds - will not automatically render void and invalid the seizure and
custody over the seized items so long as the integrity and evidentiary value of the seized
items are properly preserved by the apprehending officer or team. 31 In other words, the failure
of the apprehending team to strictly comply with the procedure laid out in Section 21 of RA 9165 and
its IRR does not ipso facto render the seizure and custody over the items as void and invalid, provided
that the prosecution satisfactorily proves that: (a) there is justifiable ground for non-
compliance; and (b) the integrity and evidentiary value of the seized items are properly
preserved.32 In People v. Almorfe,[[33]] the Court explained that for the above-saving clause to
apply, the prosecution must explain the reasons behind the procedural lapses, and that the
integrity and evidentiary value of the seized evidence had nonetheless been
preserved.34 Also, in People v. De Guzman,35 it was emphasized that the justifiable ground for
non-compliance must be proven as a fact, because the Court cannot presume what these
grounds are or that they even exist.36

After a judicious study of the case, the Court finds that there are substantial gaps in the chain of
custody of the seized items from Año which were unfortunately, left unjustified, thereby putting into
question their integrity and evidentiary value.

As the prosecution submits, upon Año's arrest, PO1 Ortilla called Brgy. Captain Buenviaje to witness
the marking and to sign the inventory. After which, P02 Ayad marked the sachet of shabu subject of
the sale with Año's intials, "NDRA," while PO1 Ortilla prepared an inventory of the seized items, which
was signed by Brgy. Captain Buenviaje as witness, and had them photographed. Thereafter, the buy-
bust team escorted Año to the police station and turned over the sachet for examination to FC
Villaraza.

While the fact of marking and inventory of the seized item was established by the attached Inventory
of Seized/Confiscated Items,37 the records are glaringly silent as to the presence of the required
witnesses, namely, the representatives from the media and the DOJ. To reiterate, Section 21 (1) of RA
9165, prior to its amendment by RA 10640, as well as its IRR requires the presence of the following
witnesses during the conduct of inventory and photography of the seized items:  (a) the accused or the
person/s from whom such items were confiscated and/or seized, or his/her representative or
counsel; (b) any elected public official; and (c) a representative from the media and the DOJ. 38 In their
absence, the prosecution must provide a credible explanation justifying the noncompliance with the
rule; otherwise, the saving clause under the IRR of RA 9165 (and now, the amended Section 21,
Article II of RA 9165) would not apply.

Here, no such explanation was proffered by the prosecution to justify the procedural lapse. It then
follows that there are unjustified gaps in the chain of custody of the items seized from Año, thereby
militating against a finding of guilt beyond reasonable doubt, which resultantly warrants his
acquittal.39 It is well-settled that the procedure under Section 21, Article II of RA 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.40

As a final note, the Court finds it fitting to echo its recurring pronouncement in recent jurisprudence on
the subject matter:

80
The Court strongly supports the campaign of the government against drug addiction and commends
the efforts of our law enforcement officers against those who would inflict this malediction upon our
people, especially the susceptible youth. But as demanding as this campaign may be, it cannot be
more so than the compulsions of the Bill of Rights for the protection of liberty of every individual in the
realm, including the basest of criminals. The Constitution covers with the mantle of its protection the
innocent and the guilty alike against any manner of high-handedness from the authorities, however
praiseworthy their intentions.

Those who are supposed to enforce the law are not justified in disregarding the right of the individual
in the name of order. Order is too high a price for the loss of liberty. x x x.41

In this light, prosecutors are strongly reminded that they have the positive duty to prove compliance
with the procedure set forth in Section 21 of RA 9165, as amended. As such, they must have
the initiative to not only acknowledge but also justify any perceived deviations from the said
procedure during the proceedings before the trial court. Since compliance with this procedure is
determinative of the integrity and evidentiary value of the corpus delicti and ultimately, the fate of the
liberty of the accused, the fact that any issue regarding the same was not raised, or even threshed out
in the court/s below, would not preclude the appellate court, including this Court, from fully examining
the records of the case if only to ascertain whether the procedure had been completely complied with,
and if not, whether justifiable reasons exist to excuse any deviation. If no such reasons exist, then it is
the appellate court's bounden duty to acquit the accused, and perforce, overturn a conviction.

WHEREFORE, the appeal is GRANTED. The Decision dated December 4, 2015 of the Court of Appeals
in CA-G.R. CR-H.C. No. 06127 is hereby REVERSED and SET ASIDE. Accordingly, accused-appellant
Nestor Año y Del Remedios is ACQUITTED of the crime charged. The Director of Bureau of Corrections
is ordered to cause his immediate release, unless he is being lawfully held in custody for any other
reason.1avvphi1

SO ORDERED.

THIRD DIVISION

January 17, 2018

G.R. No. 223142

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee

vs.
ROLANDO SANTOS ZARAGOZA, Accused-Appellant

DECISION

MARTIRES, J.:

This resolves the appeal of accused-appellant Rolando Santos y Zaragoza (Santos) seeking the reversal
and setting aside of the 6 August 2014 Decision 1 and 2 March 2015 Resolution 2 of the Court of Appeals,
Fourth Division (CA) in C.A.-G.R. CR-HC No. 05851, affirming the Decision 3 of the Regional Trial
Court (RTC), Branch 120, Caloocan City, in Criminal Case Nos. C-82010 and C-82011 finding him guilty
of Illegal Possession of Dangerous Drugs and Illegal Possession of Drug Paraphernalia under Republic
Act (R.A.) No. 9165, respectively.

81
THE FACTS

Accused-appellant Santos was charged before the RTC of Caloocan City with three (3) counts of
violation of certain provisions of R.A. No. 9165, viz:

Crim. Case No. C-82009 (Violation of Sec. 6, Art. II of R.A. No. 9165)

That on or about the 21st day of August, 2009 in Caloocan City, Metro Manila and within the
jurisdiction of this Honorable Court, the above-named accused, without authority of law, did then and
there willfully, unlawfully, and feloniously maintain in his house at 21 Tagaytay St., Caloocan City, a
drug den, dive or resort where dangerous drugs are habitually dispensed for use by the customers and
addicts.4

Crim. Case No. C-82010 (Violation of Sec. 11, Art. II of R.A. No. 9165)

That on or about the 21st day of August, 2009 in Caloocan City, Metro Manila and within the
jurisdiction of this Honorable Court, the above-named accused, without being authorized by law, did
then and there willfully, unlawfully and feloniously have in his possession, custody, and control dried
crushed leaves and seeds wrapped in a newsprint and contained in transparent plastic "tea bag"
marked "ELS-21-8-09-06" weighing 1.0022 grams, when subjected for laboratory examination gave
positive result to the tests for Marijuana, a dangerous drug.5

Crim. Case No. C-82011 (Violation of Sec. 12, Art. II of R.A. No. 9165)

That on or about the 21st day of August, 2009 in Caloocan City, Metro Manila and within the
jurisdiction of this Honorable Court, the above-named accused, without being authorized by law, did
then and there willfully, unlawfully, and feloniously have in his possession, custody, and control several
strips of used aluminum foil in a transparent plastic bag, several pieces of used plastic sachet in a
transparent "tea bag," and a plastic tube intended for sniffing Methamphetamine Hydrochloride, a
dangerous drug.6

In relation to Criminal Case No. C-82009 where Santos was charged for maintaining a drug den, Imee
Baltazar Loquinario-Flores (LoquinarioFlores) who was found inside the house of Santos during the
service of the search warrant, was charged with violation of Sec. 7, Art. II of R.A. No. 9165. 7

When arraigned, both Santos and Loquinario-Flores pleaded not guilty. 8 Joint trial of the cases
thereafter ensued.

Version of the Prosecution

The prosecution tried to prove its cases against Santos through the testimony of Special Investigator
Elson Saul (Saul), Agents Jerome Bomediano (Bomediano), Henry Kanapi (Kanapi) and Atty. Fatima
Liwalug (Atty. Liwalug), all from the Reaction, Arrest and Interdiction Division (RAID) of the National
Bureau of Investigation (NBI), and Nicanor Cruz, Jr. (Cruz), of the NBI Forensic Chemistry
Division (FCD).

Prior to the application on 20 August 2009 by Atty. Liwalug for a search warrant before the RTC,
Manila, the RAID-NBI received information from their confidential informant that there was a group of
individuals at Tagaytay St., Caloocan City, selling drugs and using minors as runners. After Atty.
Liwalug interviewed the informant, she, along with an NBI team and the technical staff
of Imbestigador, a GMA Channel 7 investigative program, went to the reported area to conduct
surveillance. The actual surveillance, where videos were taken of the buying, selling, and use of drugs
in the different houses on Tagaytay St., lasted for two weeks. During the first test-buy, Bomediano
was able to buy shabu from Santos alias "Rolando Tabo." Two informants were used by the NBI for the
surveillance but the spy camera was attached to only one of them. The informants were able to buy
drugs from Santos and to use them inside his house.9

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The first video,10 taken by the staff of Imbestigador, showed the informants going inside a makeshift
house on Tagaytay St. which, according to one of the informants, was owned by Santos. He was shown
standing in front of a table while preparing the paraphernalia to sniff shabu. Also shown in the video
was Jenny Coyocot, the adopted daughter of Santos, who, according to the informant, sold foil for the
price of ₱2.00 per strip. The second video 11 depicted Erwin Ganata Ayon telling Jack, one of the
occupants in Santos' house, "pasok kami sa bahay ni Tabo." 12 The videos were turned over by Mean de
Chavez of Imbestigador to Atty. Liwalug.13

On 21 August 2009, Kanapi, Saul, Bomediano, and SI Junnel Malaluan, armed with a search
warrant,14 proceeded to the house of Santos on Tagaytay St. Kanapi and Malaluan guarded the
perimeter of Santos' house to ensure that no one could exit from or enter the house during the service
of the search warrant. Previous to the service of the warrant, the NBI RAID coordinated 15 with the
Department of Justice (DOJ), the officials of the barangay, and the media.16

Saul knocked on the door of Santos' house. When nobody answered despite several minutes of waiting,
the NBI team broke open the door. Saul, Bomediano, Malaluan, and the Imbestigator team proceeded
to the second floor where they found a person who identified himself as Rolando Santos. Saul told
Santos that the team was from the NBI and that they were to serve a search warrant on him, which
copy was actually shown to Santos. The team waited for the representatives from the DOJ and the
barangay before conducting the search.17

During the conduct of the search at the living room on the second floor of the house, Saul found inside
the bedroom and beside the bed of Santos several used and unused foil strips either crumpled or
rolled, the size of a cigarette stick. The foil strips, 18 numbering fourteen, were found inside a baby
powder container.19 He also found unused small plastic sachets. 20 Saul placed the foil and plastic
sachets on the center table in the living room. When Saul frisked Santos, he found marijuana leaves
wrapped in paper on the right pocket of his pants. Saul informed Santos of his constitutional rights and
placed the marijuana leaves on top of the center table. Saul searched the rooms on the second floor
but found nothing. From a trash can in the kitchen, Saul found used small transparent sachets which
he also placed on the center table. Loquinario-Flores, who was caught on video selling to the informant
aluminum foil to be used with drugs, and two minor children were found on the first floor of the house.
The children admitted that they were part of a gang in the area.21

Santos, Assistant City Prosecutor Darwin Cañete, Kagawad Magno Flores, and media representative
Eugene Lalaan of lmbestigador witnessed the inventory22 of the seized items by Saul and when he
marked them. Santos, Loquinario-Flores, and the two minors were brought to the NBI office. When
Saul returned to the NBI office after the operation, he submitted the seized items to the NBI forensic
chemist. A joint affidavit of arrest23 was thereafter executed by Saul, Malaluan, Bomediano, and
Kanapi.24

The testimony of Cruz, the forensic chemist, was dispensed with after the parties agreed to stipulate
on the matters he would testify and after a short cross-examination by the defense.

Version of the Defense

The version of the defense was established through the testimony of Loquinario-Flores, Santos, and
Renamel Destriza (Destriza).

On 21 August 2009 at about 3:00 p.m., while Santos was alone at home playing his guitar, the NBI
team armed with long firearms suddenly arrived looking for a certain Roland Tabo. Santos was made to
lie face down and thereafter was frisked. The team took Santos' money amounting to ₱140.00 and his
house was searched in the presence of a kagawad from Quezon City but the search team found
nothing. As a result, the team brought out foil, lighters, and marijuana and took pictures. Loquinario-
Flores was inside the house that time as she was called by Destriza to help bring down from the second
floor an elderly who was hit by the door when the NBI team forcibly opened it. Loquinario-Flores was

83
no longer allowed to leave while Destriza, who was carrying a child that time, was allowed to go out of
the house. Santos, Loquinario-Flores, and the other persons arrested were brought to the NBI office. It
was only during the inquest held the following day that Santos was informed that he was being
charged of violating the provisions of R.A. No. 9165 and allowed to see the items allegedly seized from
him.25

The Ruling of the RTC

The RTC26 ruled that the entry in the house of Santos by the NBI team and the subsequent confiscation
of the paraphernalia and marijuana were valid and legal since the team had a search warrant.
Moreover, it held that the search was conducted following proper procedure. Thus, the R TC resolved
the cases as follows:

Premises considered, this court finds and so holds the accused Rolando Santos y Zaragoza GUILTY
beyond reasonable doubt for violation of Sections 6, 11 and 12, Article II of Republic Act No. 9165,
otherwise known as the Comprehensive Dangerous Drugs Act of 2002 and imposes upon him the
following:

(1) In Crim. Case No. C-82009, the penalty of Life Imprisonment and a fine of Five Hundred Thousand
Pesos (₱500,000.00);

(2) In Crim. Case No. C-82010, the penalty of Imprisonment of twelve (12) years and one (1) day to
Fourteen (14) years and a fine of Three Hundred Thousand Pesos (P300,000.00); and

(3) In Crim. Case No. C-82011, the penalty of Imprisonment of six (6) months and one (1) day to
four (4) years and a fine of Ten Thousand Pesos (₱l0,000.00).

Further, in Crim. Case No. C-82012, accused Imee Baltazar Loquinario-Flores was likewise

found GUILTY beyond reasonable doubt for violation of Section 7 of the above-cited law and imposes
upon her the penalty of imprisonment of twelve (12) years and one (1) day to fourteen (14) years and
a fine of Three Hundred Thousand Pesos (₱300,000.00).

The drugs and drug paraphernalia subject matter of these cases are hereby confiscated and forfeited in
favor of the government to be dealt with in accordance with law.

SO ORDERED.

The Ruling of the CA

Feeling aggrieved with the decision of the RTC, Santos appealed before the Court of Appeals.

In Criminal Case No. C-82009, the CA, Fourth Division 27 ruled that the RTC should not have given
much weight to the video footages because these were not identified and authenticated by the
confidential informant who took them. It held that the prosecution failed to present any witness who
had personal knowledge and who could have testified that Santos' house was a drug den. The team, on
the other hand, failed to show that Santos or any other person was committing illegal activities inside
the house. It found that the testimony of the confidential informant was essential and indispensable for
the conviction of Santos because the NBI agents did not have any personal knowledge as to the
alleged illegal activities in the house that would characterize it as a drug den. 28

In Criminal Case No. C-82012, because of its ruling that the prosecution failed to establish that Santos
was maintaining a drug den, the CA held that it necessarily followed that Loquinario-Flores, pursuant to
Sec. 11 (a), Rule 12229 of the Rules of Court, must be exonerated of the charge against her for
violating Sec. 7, Art. II of R.A. 9165. Despite the fact that Loquinario-Flores did not appeal, the CA
relied on the dictum that everything in an appealed case is open for review by the appellate court. 30

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In Criminal Case Nos. C-82010 and C-82011, the CA held that the prosecution was able to show the
guilt of Santos beyond reasonable doubt. It held that the testimony of Saul was straightforward and
that there was no proof that he had ill motive to testify against Santos. On the other hand, it found the
defense of frame-up put up by Santos was self-serving which failed to rebut the overwhelming
evidence presented by the prosecution; and that the alleged inconsistencies in the testimonies of
Kanapi and Bomediano were on trivial and immaterial details that do not affect their
credibility.31 Hence, the appeal of Santos was decided as follows:

WHEREFORE, the appeal is PARTIALLY GRANTED. The Decision dated 26 September 2012 of the lower
court is MODIFIED as follows:

1. The judgment in Criminal Case No. C-82010 finding the appellant Rolando Santos y Zaragoza guilty
beyond reasonable doubt of the crime of Illegal Possession of Dangerous Drugs under Section 11,
Article II of RA 9165 is hereby AFFIRMED;

2. The judgment in Criminal Case No. C-82011 finding the appellant Rolando Santos y Zaragoza guilty
beyond reasonable doubt of the crime of Illegal Possession of Drug Paraphernalia under Section 12,
Article II of RA 9165 is hereby AFFIRMED;

3. The judgment in Criminal Case No. C-82009 finding the appellant Rolando Santos y Zaragoza guilty
beyond reasonable doubt of the crime of maintaining a Drug Den under Section 6, Article II of RA 9165
is REVERSED and SET ASIDE. Appellant Rolando Santos y Zaragoza is hereby ACQUITTED in Criminal
Case No. C-82009 for insufficiency of evidence.

4. The judgment in Criminal Case No. C-82012 finding the accused Imee Baltazar Lquinario-Flores
guilty beyond reasonable doubt of the crime of Visiting a Drug Den under Section 7, Article II of RA
9165 is likewise REVERSED and SET ASIDE. She is hereby ACQUITTED in Criminal Case No. C-82012
for insufficiency of evidence.

SO ORDERED.

Santos sought for a partial reconsideration 32 of the decision of the CA insofar as it affirmed his
conviction in Crim. Case Nos. C-82010 and C-82011. Finding no persuasive grounds or substantial
bases to reconsider, however, the CA denied the motion.33

ISSUES

I.

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT DESPITE THE
PROSECUTION'S FAILURE TO PROVE HIS GUILT BEYOND RESONABLE DOUBT.

II.

THE TRIAL COURT GRAVELY ERRED IN GIVING FULL WEIGHT AND CREDENCE TO THE PROSECUTION'S
EVIDENCE NOTWITHSTANDING ITS FAILURE TO PROVE THE INTEGRITY AND IDENTITY OF THE
ALLEGED CONFISCATED DRUGS.

OUR RULING

The appeal is without merit.

It bears to stress that while an accused in a criminal case is presumed innocent until proven guilty, the
evidence of the prosecution must stand on its own strength and not rely on the weakness of the
evidence of the defense.34The Court firmly holds that the prosecution was able to successfully

85
discharge its burden of overcoming the constitutional presumption of innocence of Santos and in
proving his guilt beyond reasonable doubt in Crim. Case Nos. C-82010 and C-82011.

The findings of the trial court and the appellate court as to the credibility of the prosecution
witnesses are binding and conclusive upon the Court.

Santos claimed that the testimonies of the prosecution witnesses were indecisive, conflicting, and
contradictory; as opposed to the version of the defense which was consistent, straightforward, and
complementary with each other.35

To justify his claim, Santos averred that when Saul first testified he stated that the second floor of the
house had a living room, kitchen, and two rooms. It was when Saul allegedly frisked Santos that he
found several used and unused aluminum foil and a sachet of marijuana, but nothing was found inside
the two rooms. When Saul was again put on the witness stand, he allegedly admitted that the five
disposable lighters and the strips of aluminum foil were found inside Santos' bedroom.36

Contrary to the claim of Santos, the testimonies of Saul were not inconsistent with each other. When
first put on the stand, Saul admitted that he found the strips of aluminum foil in the living room; and
that when he frisked Santos he found in the right pocket of his pants the marijuana leaves wrapped in
paper.37 Clearly, Saul was forthright in stating where he found the used and unused aluminum foil and
the marijuana. Saul never claimed that the strips of aluminum foil were found on the body of Santos.

When Saul testified again, he described in detail that the strips of aluminum foil were found inside a
plastic baby powder container. 38 Although Saul claimed that he found these in the bedroom of Santos,
the Court took note of the fact that in most houses in urban areas, the living room is also used as the
bedroom. What is important is that Saul was consistent that he found the strips of aluminum foil on the
second floor of the house where the living room and bedroom were located.

It must be emphasized that the finding of illicit drugs and paraphernalia in a house or building owned
or occupied by a particular person raises the presumption of knowledge and possession thereof which,
standing alone, is sufficient to convict.39 The truth that the strips of aluminum foil were found in the
house of Santos and the marijuana in his body, had not been successfully controverted by him. In fact,
there was but the lame defense of frame-up offered by Santos to overcome the presumption.
Enlightening at this point is the jurisprudence in People v. Lagman, 40 viz:

It held that illegal possession of regulated drugs is mala prohibita, and, as such, criminal intent is not
an essential element. However, the prosecution must prove that the accused had the intent to
possess (animus posidendi) the drugs. Possession, under the law, includes not only actual possession,
but also constructive possession. Actual possession exists when the drug is in the immediate
possession or control of the accused. On the other hand, constructive possession exists when the drug
is under the dominion and control of the accused or when he has the right to exercise dominion and
control over the place where it is found. Exclusive possession or control is not necessary. The accused
cannot avoid conviction if his right to exercise control and dominion over the place where the
contraband is located, is shared with another.41

The contention of Santos that the members of the raiding team gave an altogether different account as
to who actually witnessed the implementation of the search warrant, 42 is a trivial and inconsequential
matter that does not affect the credibility of the prosecution witnesses. These matters do not deal with
the central fact of the crime. Besides, it has been held, time and again, that minor inconsistencies and
contradictions in the declarations of witnesses do not destroy the witnesses' credibility but even
enhance their truthfulness as they erase any suspicion of a rehearsed testimony. 43

In stark contrast, the defense of denial proffered by Santos cannot prevail over the positive
identification by the prosecution witnesses. A defense of denial which is unsupported and
unsubstantiated by clear and convincing evidence becomes negative and self-serving deserving no

86
weight in law, and cannot be given greater evidentiary value over convincing, straightforward, and
probable testimony on affirmative matters. 44 Courts generally view the defense of denial with disfavor
due to the facility with which an accused can concoct it to suit his or her defense. 45

Equally important is that it is the general rule that "the factual findings of the trial court, its calibration
of the testimonies of the witnesses, and its assessment of the probative weight thereof, as well as its
conclusions on the credibility of the witnesses on which said findings were anchored are accorded great
respect. This great respect rests in the trial court's first-hand access to the evidence presented during
the trial, and in its direct observation of the witnesses and their demeanor while they testify on the
occurrences and events attested to." 46 Settled also is the rule that factual findings of the appellate
court affirming those of the trial court are binding on this Court, unless there is a clear showing that
such findings are tainted with arbitrariness, capriciousness, or palpable error. 47 Let it be underscored
that appeal in criminal cases throws the whole case open for review and it is the duty of the appellate
court to correct, cite, and appreciate errors in the appealed judgment whether they are assigned or
unassigned.48 The Court had assiduously reviewed the records but found nothing to qualify these cases
as falling within the exception to the general rule.

Santos asserted that the search warrant was only for an undetermined amount of shabu; thus, the
discovery of the incriminating items other than that described in the warrant must result from bodily
search or seized in plain view to be admissible in evidence.49

The assertion of Santos has no merit considering that he did not question the admissibility of the
seized items as evidence against him during the trial of these cases. It was only when he appealed the
decision of the RTC before the CA that he raised the issue as to the admissibility of the seized items.
Well-entrenched in our jurisprudence is that no question will be entertained on appeal unless it has
been raised in the lower court.50

There was an unbroken chain in the custody of the seized drugs and paraphernalia.

It was the position of Santos that there was doubt as to the whether the marijuana and paraphernalia
seized from him were the very same objects offered in court as corpus delicti. He claimed that there
was no explanation given regarding the items confiscated from Santos from the time these were seized
until their turnover for laboratory examination. 51

"Corpus delicti is the 'actual commission by someone of the particular crime charged.' In illegal drug
cases, it refers to the illegal drug item itself. "52

The Dangerous Drugs Board (DDB) - the policy making and strategy formulating body in the planning
and formulation of policies and programs on drug prevention and control tasked to develop and adopt
a comprehensive, integrated, unified, and balanced national drug abuse prevention and control
strategy53 - has expressly defined chain of custody involving dangerous drugs and other substances in
the following terms in Sec. l(b) of DDB Regulation No. I, Series of 2002, 54 to wit:

b. "Chain of Custody" means 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.55

The exacting requirement as to the chain of custody of seized drugs and paraphernalia is highlighted in
R.A. No. 9165 as follows:

Section 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs,
Plant Sources of Dangerous Drugs. Controlled Precursors and Essential Chemicals,
87
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;

On the one hand, the Implementing Rules and Regulations (IRR) settles the proper procedure to be
followed in Sec. 21(a) of R.A. No. 9165, viz:

(a) The apprehending office/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 requirement" 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.

The Court has explained in a catena of cases the four (4) links that 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. 56

On the first link, jurisprudence dictates that '"(M)arking' is the placing by the apprehending officer of
some distinguishing signs with his/her initials and signature on the items seized. It helps ensure that
the dangerous drugs seized upon apprehension are the same dangerous drugs subjected to inventory
and photography when these activities are undertaken at the police station or at some other
practicable venue rather than at the place of arrest. Consistency with the 'chain of custody' rule
requires that the 'marking' of the seized items - to truly ensure that they are the same items that enter
the chain and are eventually the ones offered in evidence - should be done (I) in the presence of the
apprehended violator and (2) immediately upon confiscation. 57

Saul testified that after he gathered the drug paraphernalia and the marijuana which he confiscated
from Santos, he prepared the inventory of seized items/property 58 in the presence of Santos, and the
respective representatives of the DOJ, media, and the barangay. In addition to the inventory, he
marked the confiscated items as follows:

1. five (5) pieces of disposable lighters "ELS-21-8-09"

2. several pieces or strips of unused aluminum foil "ELS-21-8-09-01"

3. several pieces/strips of used aluminum foil "ELS-21-8-09-02"

4. several pieces unused small plastic sachet "ELS-21-8-09-03"

5. several pieces used small plastic sachet "ELS-21-8-09-04"

88
6. one (1) improvised plastic pipe "ELS-21-8-09-05"

7. undetermined amount of marijuana leaves and seed wrapped m newspaper "ELS-21-8-09-06"

Anent the second and third links, on the same day that Saul arrived at the NBI RAID office after the
service of the search warrant, he forthwith prepared the disposition form 59 for the turnover of the
seized items to the FCD. The seized items were received by the FCD on 21 August 2009 at 11:05 p.m.
A certification60 dated 21 August 2009 was likewise issued by the FCD confirming that the confiscated
items marked as "ELS-21-8-09- 02", "ELS-21-8-09-04", and "ELS-21-8-09-05" yielded positive results
for the presence of methamphetamine hydrochloride, and positive results for marijuana for "ELS-21-8-
09-06". On 25 August 2009, the FCD released its Dangerous Drugs Report Nos. DDM-09-08 61 and DD-
09-47.62

On the fourth link, the testimony of Cruz was dispensed with after the parties had agreed to stipulate
on the following facts:

That he is an expert witness, and as such is of the receipt of a letter request dated 21 August 2009;

That attached to the letter request were several pieces/strips of used aluminum foil marked as ELS-21-
8-09-02; several pieces of used small plastic sachet marked as ELS-21-8-09-04; one (1) improvised
plastic pipe marked as ELS-21-8-09-05, and undetermined amount of marijuana leaves and seed
wrapped in a newspaper marked as ELS-21-8-09-06;

That he conducted laboratory examination on the specimen submitted to their office, the result of
which he reduced into writing as evidenced by Dangerous Drugs Report No. DDM-09-08, stating that
upon examination conducted on the dried crushed leaves and seeds wrapped in a newsprint gave
positive results for "marijuana" and by Dangerous Drugs Report No. DDM-09-47, stating that upon
examinations conducted on the several strips of used aluminum foil in a transparent plastic bag;
several pieces of used plastic sachets in a transparent "tea bag" and a plastic sachet tube gave positive
results for the presence of Methamphetamine Hydrochloride, respectively;

That he issued a Certification dated 21 August 2009 to the effect that he conducted examination upon
the above-mentioned specimen submitted to their office.63

As opposed therefore, to the claim of Santos, there was no significant gap in the chain of custody of
the seized items. Moreover, the assertion of Santos that the forensic chemist did not testify to explain
the measures undertaken to preserve the integrity and identity of the substance examined until their
presentation in court,64 has no merit. As earlier mentioned, both the prosecution and the defense had
agreed to dispense with the testimony of the forensic chemist upon stipulation on certain facts.
Moreover, the defense counsel had the opportunity to cross-examine the forensic chemist but, as
revealed by the records, his cross-examination never dealt on matters pertaining to the measures
carried out by the NBI team to maintain the integrity of the confiscated items.

In the same vein, it needs to be stressed that Cruz is a public officer; thus, his reports carried the
presumption of regularity.1awp++i1 Besides, Sec. 44, Rule 130 of the Revised Rules of Court provides
that entries in official records made in the performance of his duty by a public officer of the Philippines,
or by a person in the performance of a duty specifically enjoined by law, are prima facie evidence of
the facts therein stated.65 It necessarily follows that the findings of Cruz as contained in Dangerous
Drugs Report Nos. DDM-09-08 and DDM-09-47 were conclusive in view of the failure of the defense to
present evidence showing the contrary.

Noteworthy, the legal teaching in our jurisprudence is that "the integrity of the evidence is presumed
to have been preserved unless there is a showing of bad faith, ill will, or proof that the evidence has
been tampered with. Accused-appellant bears the burden of showing that the evidence was tampered
or meddled with in order to overcome the presumption of regularity in the handling of exhibits by
public officers and the presumption that public officers properly discharged their duties." 66 Santos had
89
miserably failed in presenting any evidence that would justify a finding that the NBI team had ill
motive in tampering with the evidence in order to hold him liable for these grave offenses.

The prosecution was able to fully discharge its burden of proving beyond reasonable doubt its charges
against Santos.

In Crim. Case No. C-82010, Santos was charged with and convicted of violation of Sec. 11, Art. II of
R.A. No. 9165,67 the elements of which are as follows: (1) the accused is in possession of an item or
object, which is identified to be prohibited or regulated drug; (2) such possession is not authorized by
law; and (3) the accused freely and consciously possessed the drug.68

Saul testified that when he frisked Santos, he found marijuana in the right pocket of his pants. Santos
did not offer any explanation on why he was in possession of the marijuana or if he was authorized by
law to possess the dangerous drug. Based on the Dangerous Drugs Report No. DDM-09-08, the dried
crushed leaves and seeds wrapped in newspaper and contained in the transparent plastic tea bag
marked as "ELS-21-8-09-06" and which gave a positive result for marijuana, had a net weight of
1.0022 grams.

Pursuant to Sec. 11, Art. II of R.A. No. 9165, the penalty of imprisonment of twelve (12) years and
one (1) day to twenty (20) years, and a fine ranging from Three Hundred Thousand Pesos
(₱300,000.00) to Four Hundred Thousand Pesos (₱400,000.00), shall be imposed if the quantity of
marijuana is less than three hundred (300) grams. Thus, the penalty of imprisonment of twelve (12)
years and one (1) day to fourteen (14) years, and a fine of Three Hundred Thousand Pesos
(₱300,000.00) as imposed by the RTC and affirmed by the CA, is hereby sustained.

In Crim. Case No. C-82011, Santos was convicted of violation of Sec. 12, Art. II of R.A. No. 9165, 69 its
elements being as follows: (1) possession or control by the accused of any equipment, apparatus or
other paraphernalia fit or intended for smoking, consuming, administering, injecting, ingesting, or
introducing any dangerous drug into the body; and (2) such possession is not authorized by law.70

Saul testified that when he served the search warrant on Santos at his house on 21 August 2009, he
found thereat several strips of used aluminum foil in a transparent plastic bag, several pieces of used
plastic sachet in a transparent tea bag, and a plastic tube intended for sniffing shabu, which he
respectively marked "ELS-21-8-09-01 ," "ELS-21-8-09-04," and "ELS-21-8- 09-05." Similar to the
marijuana, Santos failed to justify his possession of these items. Significantly, Dangerous Drugs Report
No. DD-09-47 showed that the examination made on the washings of these confiscated items yielded
positive results for the presence of methamphetamine hydrochloride.

Pursuant to Sec. 12, Art. 11 of R.A. No. 9165, the penalty of imprisonment ranging from six (6)
months and one (1) day to four (4) years, and a fine ranging from Ten Thousand Pesos (₱10,000.00)
to Fifty Thousand Pesos (₱50,000.00) shall be imposed for violation of this provision of the Act. Finding
no error in the penalty of imprisonment of six (6) months and one (1) day to four (4) years, and a fine
of Ten Thousand Pesos (₱l0,000.00) imposed by the RTC, which was affirmed by the CA, the Court
hereby maintains the same.

WHEREFORE, the appeal is DENIED. The 6 August 2014 Decision and 2 March 2015 Resolution of the
Court of Appeals, Fourth Division in C.A.-G.R. CR-HC No. 05851 are hereby AFFIRMED.

SO ORDERED.

FIRST DIVISION

[ G.R. No. 227739, January 15, 2020 ]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. JOSEPH SOLAMILLO AMAGO AND

CERILO BOLONGAITA VENDIOLA, JR., ACCUSED-APPELLANTS.

90
 DECISION

PERALTA, C.J.:

On appeal is the May 31, 2016 Decision[1] of the Court of Appeals (CA) in CA-G.R. CR-HC. No. 01953
which affirmed the September 17, 2014 Judgment [2] of the Regional Trial Court (RTC), 7th Judicial
Region, Branch 30, Dumaguete City, in Criminal Case No. 2013-21877, finding accused-appellants
Joseph Solamilio Amago and Cerilo Bolongaita Vendiola, Jr. guilty of violating Section 5, Article II of
Republic Act (R.A.) No. 9165, or the Comprehensive Dangerous Drugs Act of 2002.

In an Amended Information[3] dated September 25, 2013, accused-appellants were charged with illegal
transportation of dangerous drugs, specifically, violation of Section 5, Article II of R.A. No. 9165,
committed as follows:

That on or about the 5th day of September, 2013 in the City of Dumaguete, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, JOSEPH SOLAMILLO AMAGO and
CERILO BOLONGAITA VENDIOLA, JR. conspiring, confederating and mutually aiding each other, did
then and there willfully, unlawfully and knowingly deliver or transport six [6] pieces elongated heat-
sealed transparent plastic sachet/s containing white crystalline substance weighing 0.05 gram/s, 0.06
gram/s, 0.05 gram/s, 0.06 gram/s, 0.02 gram/s and 0.07 gram/s, respectively, or with a total
aggregate weight of 0.31 [gram], more or less, without any lawful authority or permission to deliver or
transport the same and which substances after examination conducted on specimen was found positive
to the test of Methamphetamine Hydrochloride, also known as shabu, a dangerous drug, in violation of
Republic Act No. 9165.

That the accused JOSEPH SOLAMILLO AMAGO was found positive for Methamphetamine, a dangerous
drug, as reflected in Chemistry Report No. DT-105-13.

That the accused CERILO BOLONGAITA VENDIOLA, JR., was found positive for Methamphetamine, a
dangerous drug, as reflected in Chemistry Report No. DT-106-13.

Contrary to Section 5, Article II of Republic Act No. 9165.[4]

In their arraignment, accused-appellants pleaded not guilty [5] and the trial of the case subsequently
ensued.

The prosecution presented Police Chief Inspector (PCI) Josephine Llena, Police Officer 3 (PO3) Edilmar
Manaban, Police Officer 2 (PO2) Rico Larena, Police Auxiliary Unit (PAU) member Emilio Silva Pinero,
Police Senior Inspector (PSI) Don Richmon Conag, PO2 Placido Xandro Paclauna, Police Officer 1 (PO1)
Ranie Cuevas Lee, Department of Justice (DOJ) representative Anthony Chilius
Benlot, Barangay Banilad Kagawads Ceasar A. Parong and Alfredo M. Omoyon, and media
representatives Juancho Gallarde and Anthony Maginsay as its witnesses. Meanwhile, the defense
presented accused-appellants as its witnesses.

Version of the Prosecution

On September 5, 2013, at around 8:00 a.m., PO2 Larena was on duty at the Dumaguete City Police
Station, together with Piñero, a civilian contractual employee of the City of Dumaguete detailed with
the PAU, a program for the city to augment the police force. They were ordered by PSI Conag to join in
the conduct of a police checkpoint along the South National Highway, at the crossing of Sta. Monica
Road, Barangay Banilad, Dumaguete City, as a security measure to strengthen precautions against any
possible terror plans by any threat group or indivMual law violator. PO2 Larena and Piñero went to the
said area at around 8:30 a.m. of the same day. They positioned themselves at about one hundred
(100) meters away from the checkpoint sign for northbound vehicles to pass through them before
reaching the actual checkpoint stand sign.[6]
91
At around 9:45 a.m. of the same day, PO2 Larena and Piñero noticed two (2) persons onboard a blue
and black Honda Wave 125 motorcycle, bearing LTO plate number 2352 IR, pass by their location.
Before reaching the checkpoint sign, the driver of the motorcycle appeared to be rattled and he
abruptly executed a U-turn and went back towards the direction of PO2 Larena and Piñero. The action
of the two (2) persons led PO2 Larena and Piñero to believe that they have committed traffic violations
or were transporting/delivering something illegal. PO2 Larena was prompted to walk in the middle of
the road and Piñero to drive his motorcycle to block the two (2) motorists. Before the two (2) motorists
could reach PO2 Larena and Piñero, the driver intentionally slumped down his motorcycle and, in doing
so, his t-shirt was lifted, enabling PO2 Larena to see in plain view the handle of a handgun that was
tucked in his waistband. PO2 Larena and Piñero cautiously went over to the driver and his companion.
PO2 Larena asked the driver for the necessary license and permit to carry the said firearm. However,
the driver could not produce the necessary papers, leading to his arrest for illegal possession of firearm
by PO2 Larena; he was simultaneously apprised of his constitutional rights in the Visayan dialect.
Subsequently, the driver was identified as Amago. Meanwhile, at the same instance that the
motorcycle was slumped down, Piñero saw a folding knife protrude from the left pocket of the
passenger. As he informed PO2 Larena of what he saw, they confiscated the knife from the passenger.
[7]

As PO2 Larena confiscated from Amago the loaded handgun which was a caliber .45 pistol colt with
serial number 566124, he bodily searched Amago and was able to recover and seize another load of
magazine, a black-colored holster, a cellular phone, and money amounting to five hundred sixty pesos
(P560.00). The utility box of the motorcycle was also searched by PO2 Larena to check if there were
other illegal firearms concealed inside. Eventually it was found out that the utility box contained one
(1) peppermint gum container with six (6) elongated heat-sealed transparent plastic sachets
containing white crystalline granules. From his training and experience, PO2 Larena was able to
conclude that the sachets contained "shabu." This led to the rearrest of Amago for illegal possession of
"shabu" and was again apprised of his constitutional rights in Visayan dialect. [8]

At the crime scene, PO2 Larena marked the six (6) heat-sealed transparent plastic sachets with "JSA-
P1-9-5-13" to "JSA-P6-9-5-13" then signed the same. JSA stood for Joseph Solamillo Amago, P stood
for the crime of possession, and numbers 9-5-13 referred to the date of the incident. The other items
that were recovered from Amago were also marked at the crime scene. Subsequent to the marking of
the items recovered from Amago, PO2 Larena arrested the passenger for illegal possession of bladed
weapon and was apprised of his constitutional rights, also in the Visayan dialect. Incident to his arrest,
the passenger was bodily searched, which resulted in the recovery and seizure of one (1) improvised
tooter and one (1) folder strip of aluminum foil suspected to be used for illegal drugs. The passenger
was later identified as Vendiola. At the crime scene, PO2 Larena marked the three (3) items
confiscated from Vendiola, as follows: "CBVJ-P1-9-5-13" for the improvised tooter; "CBVJ-P2-9-5-13"
for the folding knife; and "CBVJ-P3-9-5-13" for the aluminum foil. [9] The same method was used in
marking the items seized from Vendiola.

After marking the items confiscated from accused-appellants, PO2 Larena conducted an inventory of
the seized items in their presence, together with Barangay Banilad Kagawad Felomino Flores, Jr.,
Omoyon, Parong, Maginsay,and Gallarde, who signed the two (2) receipts/inventories prepared by PO2
Paclauna, who was ordered to proceed to the crime scene. PO2 Larena as seizing officer and PO1 Lee,
the assigned photographer, signed both receipts/inventories during the conduct of the inventory. PO2
Larena and Pinero then brought the seized and confiscated items, together with accused-appellants, to
the Dumaguete City Police Station for the continuation of the inventory, as well as the standard
booking procedure. The inventory was continued at the City Anti-Illegal Drugs Operations Task Group
office inside the police station as the DOJ representative, Benlot, arrived and signed both
receipts/inventories upon verification that the items listed tallied with the items he saw on the table.
When the inventory was finished, PO2 Larena placed the six (6) transparent plastic sachets, containing
suspected "shabu," inside a brown envelope and sealed it with a masking tape and affixed his

92
signature thereon. PO2 Larena then prepared a Memorandum Request for Laboratory Examination and
Drug Test for Amago and a Memorandum Request for Drug Test for Vendiola, addressed to the
Provincial Chief of the Philippine National Police Crime Laboratory Office in Dumaguete City and signed
by PSI Benedick Poblete.[10]

It was PO3 Manaban from the crime laboratory who received the tape-sealed envelope containing six
(6) heat-sealed transparent plastic sachets with markings "JSA-P1-9-5-13" to "JSA-P6-9-5-13,"
indicated in the Memorandum Request, at 2:15 p.m. Upon checking if the contents tallied with the
Memorandum Request, PO3 Manaban resealed the envelope and kept the items inside his locker to
which he has the only access to. Afterwards, PO3 Manaban took separate urine samples from accused-
appellants and kept the same in the refrigerator in the laboratory. At 6:05 a.m. of September 6, 2013,
PO3 Manaban submitted Jo a forensic chemist of the crime laboratory, PCI Llena, the tape-sealed
envelope containing the seized items. Upon receipt, PCI Llena made her own markings on the
specimens, and weighed them that resulted with an aggregate weight of 0.31 gram. The conduct of a
qualitative examination on the seized items yielded a positive result for Methamphetamine
Hydrochloride. Her findings and conclusions were indicated in her Chemistry Report No. D-156-13.
Urine samples were taken from accused-appellants, and the screening and confirmatory tests
conducted gave a positive result for the presence of Methamphetamine. The results were indicated in
Chemistry Report No. DT-105-13 and Chemistry Report No. DT-106-13. The pieces of evidence were
then kept in the evidence vault of the crime laboratory, accessed only by PCI Llena, prior to the
submission to the court for trial.[11]

Version of the Defense

The defense presented accused-appellants as its witnesses, and the following facts were established in
their combined testimonies.

Amago is married, worked as a bamboo furniture maker, and a resident of Barangay Lutao, Bacong,
Negros Oriental. On the other hand, Vendiola is married, worked as an ambulance driver, and is a
resident of West Poblacion, Bacong, Negros Oriental. Accused-appellants are longtime friends and
neighbors as they are residents of adjacent barangays.[12]

At about 7:00 a.m. of September 5, 2013, Amago was at his house tending to his cow and at past
8:00 a.m., he decided to go to Dumaguete City to collect his receivables from his customers on Sta.
Rosa Street, Dumaguete City who previously bought bamboo furniture on installment basis. Meanwhile,
also at around 8:00 a.m., Vendiola just finished his duty as an ambulance driver of Bacong Municipal
Health Office. As he was off duty, Vendiola immediately went to a privately-owned auto repair shop
because the ambulance he was using needed an oil change. The shop mechanic then told him that he
needed an oil filter to be procured by him at Diesel Auto Parts in Tabuc-tubig, Dumaguete City. [13]

During that time, Amago was traversing the South National Highway onboard a borrowed motorcycle
allegedly owned by Roger Pamen. Vendiola saw Amago and asked where Amago was headed. Amago
replied that he was on his way to Dumaguete City and Vendiola asked for a ride since he was also
headed to Dumaguete City to buy the said oil filter. Upon reaching Dumaguete City, Amago saw a
checkpoint sign somewhere near Sta. Monica Road, Banilad, Dumaguete City. He slowed down and
eventually stopped before reaching the checkpoint knowing that the registration of the borrowed
motorcycle had already expired. While both accused-appellants were parked on the shoulder of the
road, they were approached by a male person in civilian clothes who introduced himself as a police
officer and later identified by Amago as PO2 Paclauna. Right after, Amago was asked to show his
driver's license and registration. He told PO2 Paclauna that the motorcycle he was driving had an
expired registration and that it was borrowed. Eventually, PO2 Paclauna informed Amago that he would
impound the motorcycle.[14]

Thereafter, Vendiola disembarked from the motorcycle while Amago remained seated there. PO1 Lee
approached Vendiola and the two spoke with each other; Amago did not hear the conversation. PO1
93
Lee then approached and informed PO2 Paclauna that Amago still had not returned the three thousand
pesos (P3,000.00) that PO1 Lee gave him for the bamboo intended for the fence of his house. PO2
Paclauna responded and told PO1 Lee, "butangan nato ni" which means that they would plant evidence
against Amago. Right after, PO2 Paclauna kicked the motorcycle while Amago was still seated thereon
that resulted in Amago falling from the motorcycle. Vendiola tried to approach Amago but he was told
by PO1 Lee to go away. PO1 Lee then dragged Vendiola towards a Tamaraw FX which was parked
about fifty (50) meters away from where Amago fell. Afterwards, PO1 Lee bodily searched Vendiola
and recovered from him a request slip from the shop mechanic, a folding knife, and twenty-five pesos
(P25.00); afterwards, Vendiola was made to board the Tamaraw FX.[15]

On the other hand, Amago was handcuffed by PO2 Paclauna, together with another police officer in
civilian clothes, and was dragged towards the grassy portion near an acacia tree in the same direction
where the Tamaraw FX was parked. Later on, a table taken from the Tamaraw FX was set up on a
grassy area. The items recovered and seized from Amago were placed on the table. It was then when
Amago was told that the six (6) sachets, containing suspected "shabu," came from the utility box of
the borrowed motorcycle he was driving.[16]

When Amago was detained, it was the only time when he found out that he was charged with
possession of illegal drugs. Surprisingly, when Amago was preparing his counter-affidavit, he was
informed that he was already being charged with violation of Section 5, Article II of R.A. No. 9165.
Amago denied the crimes charged against him and claimed that he had no knowledge of the drugs that
were allegedly taken from the motorcycle he was driving. [17]

Vendiola, on the other hand, did not know that he was already arrested when he was made to board
the Tamaraw FX. He also denied ownership of the drug paraphernalia allegedly recovered from him. He
was surprised by the fact that he was being chafed with violation of Section 5, Article II of R.A. No.
9165 as there were no illegal drugs confiscated from him. Lastly, he denied knowing PO2 Larena and
Pinero prior to the incident nor does he have any grudge with either of the two.[18]

RTC Ruling

After trial, the RTC handed a guilty verdict on accused-appellants for violation of Article II, Section 5 of
R.A. No. 9165 for the sale, trade, delivery, administration, dispensation, distribution and transportation
of shabu. The dispositive portion of the September 17, 2014 Judgment [19] states:

WHEREFORE, in the light of the foregoing, the two (2) accused JOSEPH SOLAMILLO AMAGO and
CERILO BOLONGAITA VENDIOLA, JR. are hereby found GUILTY beyond reasonable doubt of the offense
of illegal transport of 0.31 gram of shabu in violation of Section 5, Article II of RA 9165 and are hereby
sentenced each to suffer a penalty of life imprisonment and each to pay a fine of Five Hundred
Thousand Pesos (P500,000.00).

The six (6) heat-sealed transparent plastic sachets with markings "JSA-P1-9-5-13" to "JSA-P6-9-5-13"
and containing 0.05 gram, 0.06 gram, 0.05 gram, 0.06 gram, 0.02 gram and 0.07 gram, respectively,
or with a total aggregate weight of 0.31 gram of shabu are hereby confiscated and forfeited in favor of
the government and to be disposed of in accordance with law.

In the service of sentence, the accused JOSEPH SOLAMILLO AMAGO and CERILO BOLONGAITA
VENDIOLA, JR. shall be credited with the full time during which they have undergone preventive
imprisonment, provided they agree voluntarily in writing to abide by the same disciplinary rules
imposed upon convicted prisoners.

SO ORDERED.[20]

CA Ruling

Accused-appellants, on appeal, assigned before the CA the following issues:

94
[I.]

THE HONORABLE TRIAL COURT ERRED IN ADMITTING AS EVIDENCE THE SEIZED ITEM BEING THE
FRUIT OF A POISONOUS TREE.

[II.]

THE HONORABLE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANTS DESPITE THE
FAILURE OF THE PROSECUTION TO PROVE THE ELEMENTS OF THE CRIME CHARGED.

[III.]

THE HONORABLE TRIAL COURT ERRED IN FINDING THE EXISTENCE OF CONSPIRACY IN THE INSTANT
CASE.[21]

On appeal, the CA affirmed the RTC Judgment. It was convinced that the trial court was correct in
admitting the seized items as evidence as the warrantless search was incidental to a lawful arrest. The
CA was in the position that the fact that there is actual conveyance suffices to support a finding that
the act of transporting is committed and it is immaterial whether the place of destination is reached.
On the issue of conspiracy, taking into consideration all the circumstances, the CA inevitably led to
conclude that there was a concerted action between accused-appellants before and during the time
when the offense was carried out, which ably demonstrated their unity of design and objective to
transport the dangerous drugs. Lastly, according to the CA, there was no reason to detract from the
trial court's pronouncement, the same being supported by the records; thus, accused-appellants'
defense of denial deserves scant consideration as it is viewed with disfavor.

Before us, the People manifested that it would no longer file a supplemental brief in view of the
adequate discussion of the relevant issues and arguments in its Brief for the Appellee. [22] On the other
hand, accused-appellants submitted a Supplemental Brief. [23] Essentially, they maintain their main
arguments in the CA that the dangerous drugs allegedly seized from them were inadmissible in
evidence for being the fruit of a poisonous tree, the elements of the crime charged were not sufficiently
established, and the conspiracy in the commission of the crime was not proven.

Our Ruling

We find the appeal bereft of merit.

On the first assignment of error, the record shows that there have been valid in flagrante
delicto arrests. Section 5, Rule 113 of the Revised Rules of Criminal Procedure provides the occasions
on which a person may be arrested without a warrant, to wit:

Section 5. Arrest without warrant; when lawful. — A peace officer or a private person may, without a
warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is
attempting to commit an offense;

(b) When an offense has just been committed and he has probable cause to believe based on personal
knowledge of facts or circumstances that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place
where he is serving final judgment or is temporarily confined while his case is pending, or has escaped
while being transferred from one confinement to another.

As per the established facts during the trial, the instant case falls within paragraph (a). For a
warrantless arrest of an accused caught in flagrante delicto to be valid, two requisites must concur: (1)
the person to be arrested must execute an overt act indicating that he has just committed, is actually
95
committing, or is attempting to commit a crime; and (2) such overt act is done in the presence or
within the view of the arresting officer.[24]

It is apparent that Amago's act of making an abrupt U-turn, instead of stopping at the checkpoint sign,
made a reasonable belief for the police officers to suspect that accused-appellants might have
committed some traffic violations or delivering something illegal. The police officers stopped them and,
in the course, Amago intentionally slumped down the motorcycle he was riding causing his t-shirt to be
lifted, thereby exposing the handle of a handgun that was tucked in his waistband. At the same time,
Piñero saw a folding knife protruding from the left pocket of Vendiola who had fallen from the
motorcycle. Due to the failure of Amago to produce any license to carry the firearm and for the illegal
possession of a bladed weapon by Vendiola, they were arrested.

Meanwhile, regarding the admissibility of the confiscated items, they fall within the exception of
warrantless search. The search conducted inside the utility box of the motorcycle was legal. A search
incident to a lawful arrest under Section 13, Rule 126 of the Rules of Court states:

SEC. 13. Search incident to lawful arrest. — A person lawfully arrested may be searched for dangerous
weapons or anything which may have been used or constitute proof in the commission of an offense
without a search warrant.

In the instant case, tire shabu was found in a peppermint gum container inside the utility box of
accused-appellants' motorcycle that was within their immediate control. Therefore, it is within the
permissible area that the apprehending officers could validly execute a warrantless search incidental to
a lawful arrest.

In People v. Uyboco,[25] this Court declared that:

In lawful arrests, it becomes both the duty and the right of the apprehending officers to conduct a
warrantless search not only on the person of the suspect, but also in the permissible area within the
latter's reach. Otherwise stated, a valid arrest allows the seizure of evidence or dangerous weapons
either on the person of the one arrested or within the area of his immediate control. The phrase "within
the area of his immediate control" means the area from within which he might gain possession of a
weapon or destructible evidence.[26]

It is worth mentioning that in the present case, there was a strict compliance with the chain of custody
rule under Section 21 (1) of R.A. No. 9165 which specifies that:

The apprehending team having initial custody and control of the drugs shall, immediately after seizure
and confiscation, physically inventory and photograph the same in the presence of the accused or the
person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a
representative from the media and the Department of Justice, and any elected public official who shall
be required to sign the copies of the inventory and be given a copy thereof.

In the instant case, the prosecution presented PO1 Lee, Benlot, Parong, Omoyon, Gallarde and
Maginsay as witnesses who were all present during the inventory. All the persons mentioned above
were required witnesses mandated by Section 21 of R.A. No. 9165. In fact, the handling of evidence in
the crime laboratory was specifically proven by the prosecution to have been preserved with integrity.
Hence, there is no room for doubt and there are no other reasons for the seized items not to be
admitted as evidence in this case.

On the second issue, under Section 5, Article II of R.A. No. 9165 or illegal delivery or transportation of
prohibited drugs, the provision reads:

Section 5. Sale, Trading, Administration, Dispensation, Delivery, Distribution and Transportation of

Dangerous Drugs and/or Controlled Precursors and Essential Chemicals. — The penalty of life
imprisonment to death and a fine ranging from Five hundred thousand pesos (P500,000.00) to Ten

96
million pesos (P10,000,000.00) shall be imposed upon any person, who, unless authorized by law,
shall sell, trade, administer, dispense, deliver, give away to another, distribute, dispatch in transit or
transport any dangerous drug, including any and all species of opium poppy regardless of the quantity
and purity involved, or shall act as a broker in any of such transactions.

Accused-appellants contend that the prosecution failed to prove the fact of delivery or transport of the
seized illegal drugs by them to another person or entity. They are in the position that the act of
passing on the dangerous drugs from one to the other must be established. The mere presence of
dangerous drugs inside the motorcycle should not be construed to mean that such items were intended
for delivery.

This Court does not agree.

"Transport" as used under the Comprehensive Dangerous Drugs Act of 2002 means "to carry or convey
x x x from one place to another." The essential element of the charge is the movement of the
dangerous drug from one place to another.[27]

There is no definitive moment when an accused "transports" a prohibited drug. When the
circumstances establish the purpose of an accused to transport and the fact of transportation itself,
there should be no question as to the perpetration of the criminal act. The fact that there is actual
conveyance suffices to support a finding that the act of transporting was committed. [28]

In the instant case, records established that accused-appellants were found in possession of six (6)
sachets containing shabu. It cannot be denied that they used a motor vehicle to transport the said
illegal drugs from one place to another. As stated earlier, transportation means to carry or convey from
one place to another, the fact alone that the accused-appellants were found in possession of the illegal
drugs while traversing the South National Highway is sufficient to justify their conviction.

Accused-appellants argued that the prosecution failed to prove the fact of delivery or transport of the
seized illegal drugs to another person or entity. They are in the position that the act of passing on the
dangerous drugs from one to the other must be established and the mere presence of a dangerous
drug inside the vehicle could not be construed to mean that such item is intended for delivery.

We do not agree.

The case of People v. Del Mundo[29] provides that:

The very act of transporting a prohibited drug, like in the instant case, is a malum prohibitum since it
is punished as an offense under a special law. The mere commission of the act constitutes the offense
and is sufficient to validly charge and convict an individual committing the act, regardless of criminal
intent.

Since the crime is malum prohibitum, it is inconsequential to prove that the illegal drugs were
delivered or transported to another person. The only thing that had to be proven was the movement of
the illegal drugs from one place to another. The records show that the prosecution has successfully
proven such fact. The testimony of PO2 Larena sufficiently provided the following details in his direct
testimony:

Q: Mister Witness, basing the direction of the Dumaguete City, which side of the road were you
located?

A: Right side ma'am.

Q: When you were near the crossing of San Jose, what happened?

A: We noticed two (2) persons riding in tandem going to the North direction.

97
 xxxx

Q: What were used by the two (2) persons?

A: Motorcycle color blue and black ma'am.

Q: When you noticed the two (2) persons, what happened next?

A: They passed to where we stood up going towards the North direction ma'am and before they
reached the next stand sign ma'am, they made a U-turn ma'am.

Q: Were you able to see them from the position where you were positioned?

A: Yes ma'am.

Q: When you noticed them making a U-turn, what happened next?

A: So I and my buddy went immediately to the middle of the road to block the said motorist ma'am.
[30]

The evidence on record established beyond reasonable doubt that accused-appellants were in
possession of the illegal drugs and drug paraphernalia. The items were found inside the vehicle they
were using at the time they were apprehended. In fact, accused-appellants tried to evade arrest by
making an abrupt U-turn before reaching the checkpoint. They were also in possession of an illegal
firearm and a bladed weapon. It is worthy to note that they both tested positive for the use of illegal
drugs. Taking into consideration all the circumstances of the present case, there is no doubt that
accused-appellants were transporting illegal drugs. Their bare, unsubstantiated, unpersuasive and
uncorroborated denials will not suffice to absolve them from any liability.

The Court stressed in People v. Maongco, et al.[31] that:

Moreover, accused-appellants' uncorroborated defenses of denial and claims of frame-up cannot

prevail over the positive testimonies of the prosecution witnesses, coupled with the presentation in
court of the corpus delicti. The testimonies of police officers who caught the accused-appellants in
flagrante delicto are usually credited with more weight and credence, in the absence of evidence that
they have been inspired by an improper or ill motive, than the defenses of denial and frame-up of an
accused which have been invariably viewed with disfavor for it can easily be concocted. In order to
prosper, the defenses of denial and frame-up must be proved with strong and convincing evidence,
which accused-appellants failed to present in this case.[32] (Citation omitted)

The last issue presented by the accused-appellants is their position that the conspiracy in the
commission of the crime was not proven. They argued that in the instant case, the prosecution failed
to establish that both of them assented to the same act of delivering or transporting the six (6) sachets
of shabu.

We are not persuaded.

In People v. Lababo,[33] citing Bahilidad v. People,[34] the Court summarized the basic principles in

determining whether conspiracy exists or not. Thus:

There is conspiracy when two or more persons come to an agreement concerning the commission of a
felony and decide to commit it. Conspiracy is not presumed. Like the physical acts constituting the
crime itself, the elements of conspiracy must be proven beyond reasonable doubt. While conspiracy
need not be established by direct evidence, for it may be inferred from the conduct of the accused
before, during and after the commission of the crime, all taken together, however, the evidence must
be strong enough to show the community of criminal design. For conspiracy to exist, it is essential that
there must be a conscious design to commit an offense. Conspiracy is the product of intentionality on
the part of the cohorts.

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It is necessary that a conspirator should have performed some overt act as a direct or indirect
contribution to the execution of the crime committed. The overt act may consist of active participation
in the actual commission of the crime itself, or it may consist of moral assistance to his [co-
conspirators] by being present at the commission of the crime or by exerting moral ascendancy over
the other [co-conspirators]. Hence, the mere presence of an accused at the discussion of a conspiracy,
even approval of it, without any active participation in the same, is not enough for purposes of
conviction.[35]

Conspiracy is said to exist where two or more persons come to an agreement concerning the
commission of a felony and decide to commit it. It can be proven by evidence of a chain of
circumstances and may be inferred from the acts of the accused before, during, and after the
commission of the crime which indubitably point to and are indicative of a joint purpose, concert of
action and community of interest.[36] The CA correctly ruled that conspiracy existed based from the
totality of the circumstances of the instant case. The CA held that:

Based on the evidence on record, We do not entertain any doubt that conspiracy had animated the
perpetrators in delivering or transporting the seized illegal drugs: Amago conspired with Vendiola in a
common desire to transport the dangerous drugs using the motorcycle. Both were positively identified
to have been respectively carrying a firearm, a folding knife, an improvised tooter and a folded strip of
aluminum foil. As they approached the checkpoint sign, accused-appellants appeared rattled and
hastily executed a u-turn, which clearly manifest that they were committing some offense. They were
then apprehended for illegal possession of firearm and illegal possession of a bladed weapon. The
arrest further resulted to the confiscation of the illegal drugs in the u-box of the motorcycle. It is worth
noting as well that both the accused-appellants tested positive for methamphetamine hydrochloride
or shabu.[37]

The evidence shows that the chain of circumstances necessarily leads to the conclusion that there was
concerted action between accused-appellants, with the objective of transporting illegal drugs.

Based on the foregoing, we sustain accused-appellants' conviction.

WHEREFORE, premises considered, the September 17, 2014 Judgment [38] of the Regional Trial Court
in Criminal Case No. 2013-21877, finding Joseph Solamillo Amago and Cerilo Bolongaita Vendiola, Jr.
guilty of violating Section 5, Article II of Republic Act No. 9165, or the Comprehensive Dangerous
Drugs Act of 2002, and the May 31, 2016 Decision of the Court of Appeals in CA-G.R. CR-HC. No.
01953, which affirmed the September 17, 2014 Judgment of the RTC, are AFFIRMED.

SO ORDERED.

Caguioa, J. Reyes, Jr., Lazaro-Javier, and Lopez, JJ., concur.

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