Republic of the Philippines

Department of Justice
National Prosecution Service
OFFICE OF THE CITY PROSECUTOR
General Santos City

SI III _________________________, NPS DOC. NO. XII-03-INQ-

Complainant/s, 20D – 00342/00343

-versus- -for-

Viol. Of R.A. 7394 in rel. to R.A.

________________________ 10175 and R.A. 7851 as amen-
and _____________________, ded by R.A. 10623 in rel. to
Respondent/s, R.A. 10175
x----------------------------------------x

JOINT COUNTER-AFFIDAVIT

We, _________________, of legal age, Filipino citizen and

resident of Uson B, Prk. 12, Mabuhay, General Santos City, AND
_________________, of legal age, Filipino citizen and resident of Blk.
27 Lot 113, Deca Homes, Calumpang, General Santos City after
having been duly sworn to in accordance with law, do hereby depose
and say, THAT:

1. We are the respondents in the complaint filed before the

Office of the City Prosecutor, City of General Santos, docketed as
NPS DOC NO.: XII-03-INQ-20D-00342/00343 for Violation of R.A
7394 in relation to R.A. 10175 and R.A. 7581 as amended by R.A.
10623 in relation to R.A. 10175 filed by complainant/s SI III,
VERMON JOEL G. FIRMALINO.

2. We vehemently deny the allegations in paragraph 1 of the

affidavit of complaint for lack of knowledge to form sufficient belief as
to the truthfulness of the same.

3. We deny the allegations in paragraph 2 of the Affidavit of

Complaint for lack of sufficient knowledge about the personal
circumstances of certain ANDREA MAY F. ERASQUIN, the fact that
the hand sanitizer contains 70% solution, and its actual cost in the
local market estimated around Php65.00 to Php75.00 per liter.

4. We deny the allegations in paragraphs 3 and 4 of the

Counter-Affidavit of Yeecin Divine Bacasdoon; page 1 | 6
Affidavit of Complaint for lack of knowledge to form sufficient belief as
to the truthfulness of the same.

5. We admit as to the alleged time, date, and place of meet-

up in paragraph 5 of the Affidavit of Complaint but deny as to other
allegations for lack of knowledge to form sufficient belief as to the
truthfulness of the same.

6. We deny the allegations in paragraphs 6, 7, 8, and 9 of

the Affidavit of Complaint for lack of knowledge to form sufficient
belief as to the truthfulness of the same.

7. Respondent ___________________ denies that she was

apprised of her Constitutional Rights at the time of their warrantless
arrest. All the rest of the allegations in paragraph 10 are admitted.

ARGUMENTS AND DISCUSSIONS

THE WARRANTLESS
ARREST IS
UNLAWFUL

8. Price manipulation is an act penalized under Section 5 (2)

of Republic Act No. 7851. The law provides:

“Sec. 5. Illegal Acts of Price Manipulation. – Without

prejudice to the provisions of existing laws on goods not
covered by this Act, it shall be unlawful for any person
habitually engaged in the production, manufacture,
importation, storage, transport, distribution, sale or other
methods of disposition of goods to engage in the following
acts of price manipulation of the price of any basic
necessity or prime commodity:

Xxx

(2) Profiteering, which is the sale or offering to sale of

any basic necessity or prime commodity at a price grossly
in excess of its true worth. xxx (d) whenever a person
raises the price of any basic necessity or prime
commodity he sells or offers for sale to the general public
by more than ten percent (10%) of its price in the
immediately preceding month: xxxx.”

9. Republic Act No. 10623 defines the terms basic necessity

and prime commodity, to wit:

Counter-Affidavit of Yeecin Divine Bacasdoon; page 2 | 6

 “SECTION 1. Section 3(1) of Republic Act No. 7581,
otherwise known as the ‘Price Act’, is hereby amended to
read as follows:

Xxxx.

(1)‘Basic necessities’ are goods vital to the needs of the

consumers for their sustenance and existence in times of
any of the cases provided under Section 6 or 7 of this Act
such as, but not limited to rice, corn, root crops, bread;
fresh, dried or canned fish and other marine products;
fresh pork, beef and poultry meat; fresh eggs; potable
water in bottles and containers; fresh and processed milk;
fresh vegetables and fruits; locally manufactured instant
noodles; coffee; sugar; cooking oil; salt; laundry soap and
detergents; firewood; charcoal; household liquefied
petroleum gas (LPG) and kerosene; candles; drugs
classified as essential by the department of health
and such other goods as may be included under Section 4
of this Act.

SECTION 2. Section 3(8) of the Republic Act No. 7581 is

hereby amended to read as follows”

Xxx

(8) ‘Prime commodities’ are goods not considered as

basic necessities but are essential to consumers in times
of any of the cases provided under Section 7 of this Act
such as, but not limited to, flour; dried, processed or
canned pork, beef and poultry meat; dairy products not
falling under basic necessities; onions, garlic, vinegar,
patis, soy sauce; toilet soap; fertilizer, pesticides and
herbicides; poultry, livestock and fishery feeds and
veterinary products; paper; school supplies; nipa shingles;
sawali; cement; clinker; GI sheets; hollow blocks;
plywood; plyboard; construction nails; batteries; electrical
supplies; light bulbs; steel wire; all drugs not classified
as essential drugs by the Department of Health and
such other goods as may be included under Section 4 of
this Act.”

10. Unfair or Unconscionable Sales Act or Practice is also

penalized under Article 52 (2) of Republic Act No. 7394. It provides:

“ARTICLE 52. Unfair or Unconscionable Sales Act or

Practice. – An unfair or unconscionable sales act or

Counter-Affidavit of Yeecin Divine Bacasdoon; page 3 | 6

 practice by a seller or supplier in connection with a
consumer transaction violates this Chapter whether it
occurs before, during or after the consumer transaction.
Xxx

b) that when the consumer transaction was entered into,

the price grossly exceeded the price at which similar
products or services were readily obtainable in similar
transaction by like consumers;”

11. The above-quoted provisions of law simply penalize

“OVER PRICING” or “GROSSLY EXCESSIVE PRICING” of basic
commodities as well as prime commodities. To constitute a crime, the
price must be, at least, ten percent (10%) higher than the prevailing
price in the preceding month. Here, complainant merely based their
action on the assumption that the prevailing price of sanitizer in the
local market is ranging from Php65.00 to Php75.00 per liter. No
evidence is proffered to substantiate this assertion.

12. It is not established that herein respondents are selling

OVERPRICED hand sanitizers at the time of the entrapment or buy
bust operation. Plain assumption that the alleged price of P400.00
per liter is OVERPRICED, without any factual basis, cannot be
accepted. In the enumeration of Essential Medical Supplies included
in the price freeze, as attached in the Affidavit of Complaint, HAND
SANITIZER is NOT INCLUDED. Then, there is totally no point of
comparison, at the outset, to support the proposition that there is
indeed overpricing. Hence, no crime was committed at the time of
warrantless arrest, nor there was any reasonable suspicion, to say
the least.

13. We would like to iterate this important point that the

allegations in paragraph 2 of the Affidavit of Complaint are baseless.
There is no proof or evidence that the hand sanitizers sold by herein
respondents are alcohol-based or with 70% solution. Such assertion
is purely an assumption, therefore, no probative value. The
complainant DID NOT PRESENT any LABORATORY TEST
RESULT or its equivalent confirming that the seized hand sanitizers
are indeed alcohol-based or with 70% solution. Very clear that the
complainant is only trying to justify the warrantless arrest, in his
Affidavit, by making it appear that the price should be based on that
of Ethyl or Isoprophyl Alcohol. With all due respect, that is totally
misplaced. The NBI should have done test buy and validation of the
price before the conduct of actual buy-bust operation to firmly
establish the crime of profiteering or overpricing at the outset.
Operating in a buy-bust based on assumptions would make the arrest
unlawful, considering that the act of selling hand sanitizer, per se, is

Counter-Affidavit of Yeecin Divine Bacasdoon; page 4 | 6

not illegal, unlike that of selling shabu or illegal drugs. We
EMPHASIZE that HAND SANITIZER is NOT a CONTRABAND. It is
not included in the list of goods in the price freeze order by the
Department of Trade and Industry (DTI). With that, OVER PRICING
must be proven with certainty before and during the buy-bust
operations. With all due respect, the NBI-CEMRO operatives failed to
establish such significant fact. All they have adduced are pure
narratives without any factual basis.

14. Based on the foregoing, we firmly argue that the elements

of the National Bureau of Investigation – Central Mindanao Regional
Office (NBI-CEMRO) has no cause to arrest herein respondents.
Section 5, Rule 113 of the Rules of Court provides:

“Section 5. Arrest without warrant; when lawful – A

peace officer or a private person may, without 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;

xxxx.”

15. Since the selling of hand sanitizer is not per se, illegal and
the NBI-CEMRO failed to prove that there was profiteering, then,
there was no crime when the warrantless arrest was undertaken.
Hence, the arrest is infirm and unlawful.

THE SIEZE AND

SIEZURE IS
ALSO
UNLAWFUL

16. Ordained in Section 2, Article III of the 1987 Constitution

of the Republic of the Philippines, that:

“The right of the people to be secure in their persons,

houses, papers, and effects against unreasonable
searches and seizures of whatever nature and for any
purpose shall be inviolable and no search warrant or
warrant of arrest shall issue except upon probable cause
to be determined personally by the Judge after
examination under oath or affirmation of the complainant
and the witnesses he may produce, and particularly
describing the place to be searched and persons or things
to be seized.”

Counter-Affidavit of Yeecin Divine Bacasdoon; page 5 | 6

 17. Also ordained in Section 3(2), Article III of the 1987
Constitution of the Republic of the Philippines, that:

“(2) Any evidence obtained in violation of this or the

preceding section shall be inadmissible for any purpose in
any proceeding.”

18. While we concede that the Constitutional prohibition

against warrantless search and seizure admits some exceptions in
our Jurisprudence such as, search incidental to a lawful arrest, stop-
and-frisk, search of moving vehicle and the likes, this case does not
fall squarely within the ambit of the foregoing exceptions. As
consistently argued, the warrantless arrest is unlawful, then, the
warrantless search and seizure effected during the arrest is likewise
unlawful. Hence, the articles being seized cannot be admitted for any
purpose in any proceeding, such being “fruit of a poisonous tree”.
With that, dismissal of this complaint is, therefore, warranted.

We are executing this affidavit to attest to the truth of the

foregoing facts for all legal intents and purposes.

______________________ _____________________
Affiant Affiant
Lic. No. L04-18-002960 Lic. No. L04-19-009305

SUBSCRIBED AND SWORN to before me this

_________________ in ______________, Philippines and I hereby
certify that I have personally examined the affiant and that I am fully
satisfied that he voluntarily executed his affidavit and understood the
same.

Counter-Affidavit of Yeecin Divine Bacasdoon; page 6 | 6