EN BANC

[G.R. No. 231989. September 4, 2018.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROMY LIM

y MIRANDA, accused-appellant.

DECISION

PERALTA, J : p

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. HEITAD

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 transparent plastic sachet containing Methamphetamine
hydrochloride, locally known as Shabu, a dangerous drug, with a total
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 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 corner
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 corner and stopped in
front of a house. The CI knocked at the door and uttered, "ayo, nong 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
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 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. ATICcS

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
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 Nos. 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
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 bedroom, while Gorres was watching the television. When the latter heard
that somebody jumped over their gate, he stood up to verify. Before he could
reach the door, however, it was already forced opened by the repeated
pulling and kicking of men in civilian clothing. They entered the house,
pointed their firearms at him, instructed him to keep still, boxed his chest,
slapped his ears, and handcuffed him. They inquired on where the shabu
was, but he invoked his innocence. When they asked the whereabouts of
"Romy," he answered that he was sleeping inside the bedroom. So the men
went there and kicked the door open. Lim was then surprised as a gun was
pointed at his head. He questioned them on what was it all about, but he
was told to keep quiet. The men let him and Gorres sit on a bench. Lim was
apprised of his Miranda rights. Thereafter, the two were brought to the PDEA
Regional Office and the crime laboratory. During the inquest proceedings,
Lim admitted, albeit without the assistance of a counsel, ownership of the
two sachets of shabu because he was afraid that the police would imprison
him. Like Gorres, he was not involved in drugs at the time of his arrest.
Unlike him, however, he was previously arrested by the PDEA agents but
was acquitted in the case. Both Lim and Gorres acknowledged that they did
not have any quarrel with the PDEA agents and that neither do they have
grudges against them or vice-versa .
Rubenia, Lim's live-in partner and the mother of Gorres, was at her
sister's house in Pita, Pasil, Kauswagan the night when the arrests were
made. The following day, she returned home and noticed that the door was
opened and its lock was destroyed. She took pictures of the damage and
offered the same as exhibits for the defense, which the court admitted as
part of her testimony.

RTC Ruling

After trial, the RTC handed a guilty verdict on Lim for illegal possession
and sale of shabu and acquitted Gorres for lack of sufficient evidence linking
him as a conspirator. The fallo of the September 24, 2013 Decision states:
WHEREFORE, premises considered, this Court finds that:
1. In Criminal Case No. 2010-1073, accused ROMY LIM y MIRANDA
is hereby found GUILTY of violating Section 11, Article II of R.A. 9 165
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 a 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. 9 165,
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
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 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 ofshabu , 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. TIADCc

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 Nos. 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
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 longer file a Supplemental Brief, taking into account the thorough and
substantial discussions of the issues in their respective appeal briefs before
the CA. 9 Essentially, Lim maintains that the case records are bereft of
evidence showing that the buy-bust team followed the procedure mandated
in Section 21 (1), Article II of R.A. No. 9165.

Our Ruling

The judgment of conviction is reversed and set aside, and Lim should
be acquitted based on reasonable doubt.
At the time of the commission of the crimes, the law applicable is R.A.
No. 9165. 10 Section 1 (b) of Dangerous Drugs Board Regulation No. 1,
Series of 2002, which implements the law, defines chain of custody as —
the duly recorded authorized movements and custody of seized drugs
or controlled chemicals or plant sources of dangerous drugs or
laboratory equipment of each stage, from the time of
seizure/confiscation to receipt in the forensic laboratory to
safekeeping to presentation in court for destruction. Such record of
movements and custody of seized item shall include the identity and
signature of the person who held temporary custody of the seized
item, the date and time when such transfer of custody were made in
the course of safekeeping and use in court as evidence, and the final
disposition. 11
The chain of custody rule is but a variation of the principle that real
evidence must be authenticated prior to its admission into evidence. 12 To
establish a chain of custody sufficient to make evidence admissible, the
proponent needs only to prove a rational basis from which to conclude that
the evidence is what the party claims it to be. 13 In other words, in a criminal
case, the prosecution must offer sufficient evidence from which the trier of
fact could reasonably believe that an item still is what the government
claims it to be. 14 Specifically in the prosecution of illegal drugs, the well-
established federal evidentiary rule in the United States is that when the
evidence is not readily identifiable and is susceptible to alteration by
tampering or contamination, courts require a more stringent foundation
entailing a chain of custody of the item with sufficient completeness to
render it improbable that the original item has either been exchanged with
another or been contaminated or tampered with. 15 This was adopted in
Mallillin v. People , 16 where this Court also discussed how, ideally, the chain
of custody of seized items should be established:
As a method of authenticating evidence, the chain of custody
rule requires that the admission of an exhibit be preceded by
evidence sufficient to support a finding that the matter in question is
what the proponent claims it to be. It would include testimony about
every link in the chain, from the moment the item was picked up to
the time it is offered into evidence, in such a way that every person
who touched the exhibit would describe how and from whom it was
received, where it was and what happened to it while in the witness'
possession, the condition in which it was received and the condition
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 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 AIDSTE

Thus, the links in the chain of custody that must be established are: (1)
the seizure and marking, if practicable, of the illegal drug recovered from the
accused by the apprehending officer; (2) the turnover of the seized illegal
drug by the apprehending officer to the investigating officer; (3) the turnover
of the illegal drug by the investigating officer to the forensic chemist for
laboratory examination; and (4) the turnover and submission of the illegal
drug from the forensic chemist to the court. 18
Seizure and marking of the illegal
drug as well as the turnover by the
apprehending officer to the
investigating officer

Section 21 (1), Article II of R.A. No. 9165 states:

Sec. 21. Custody and Disposition of Confiscated, Seized,
and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous
Drugs, Controlled Precursors and Essential Chemicals,
Instruments/Paraphernalia and/or Laboratory Equipment. — The PDEA
shall take charge and have custody of all dangerous drugs, plant
sources of dangerous drugs, controlled precursors and essential
chemicals, as well as instruments/paraphernalia and/or laboratory
equipment so confiscated, seized and/or surrendered, for proper
disposition in the following manner:
(1) The apprehending team having initial custody and
control of the drugs shall, immediately after seizure and
confiscation, physically inventory and photograph the
same in the presence of the accused or the person/s from
whom such items were confiscated and/or seized, or
his/her representative or counsel, a representative from
the media and the Department of Justice (DOJ), and any
elected public official who shall be required to sign the
copies of the inventory and be given a copy thereof[.] 19
Supplementing the above-quoted provision, Section 21 (a) of the
Implementing Rules and Regulations (IRR) of R.A. No. 9165 mandates:
(a) The apprehending officer/team having initial custody and
control of the drugs shall, immediately after seizure and confiscation,
physically inventory and photograph the same in the presence of the
accused or the person/s from whom such items were confiscated
and/or seized, or his/her representative or counsel, a representative
from the media and the Department of Justice (DOJ), and any elected
public official who shall be required to sign the copies of the inventory
and be given a copy thereof: Provided, that the physical inventory
and photograph shall be conducted at the place where the search
warrant is served; or at the nearest police station or at the nearest
office of the apprehending officer/team, whichever is practicable, in
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 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
corners 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 AaCTcI

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
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 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.
xxx xxx xxx
Section 21(a) of RA 9165 needs to be amended to address the
foregoing situation. We did not realize this in 2002 where the safety
of the law enforcers and other persons required to be present in the
inventory and photography of seized illegal drugs and the
preservation of the very existence of seized illegal drugs itself are
threatened by an immediate retaliatory action of drug syndicates at
the place of seizure. The place where the seized drugs may be
inventoried and photographed has to include a location where the
seized drugs as well as the persons who are required to be present
during the inventory and photograph are safe and secure from
extreme danger.
It is proposed that the physical inventory and taking of
photographs of seized illegal drugs be allowed to be conducted either
in the place of seizure or at the nearest police station or office of the
apprehending law enforcers. The proposal will provide effective
measures to ensure the integrity of seized illegal drugs since a safe
location makes it more probable for an inventory and photograph of
seized illegal drugs to be properly conducted, thereby reducing the
incidents of dismissal of drug cases due to technicalities.
Non-observance of the prescribed procedures should not
automatically mean that the seizure or confiscation is invalid or
illegal, as long as the law enforement officers could justify the same
and could prove that the integrity and the evidentiary value of the
seized items are not tainted. This is the effect of the inclusion in the
proposal to amend the phrase "justifiable grounds." There are
instances wherein there are no media people or representatives from
the DOJ available and the absence of these witnesses should not
automatically invalidate the drug operation conducted. Even the
presence of a public local elected official also is sometimes
impossible especially if the elected official is afraid or scared. 25
We have held that the immediate physical inventory and photograph of
the confiscated items at the place of arrest may be excused in instances
when the safety and security of the apprehending officers and the witnesses
required by law or of the items seized are threatened by immediate or
extreme danger such as retaliatory action of those who have the resources
and capability to mount a counter-assault. 26 The present case is not one of
those.
Here, IO1 Orellan took into custody the P500.00 bill, the plastic box
with the plastic sachet of white substance, and a disposable lighter. IO1
Carin also turned over to him the plastic sachet that she bought from Lim.
While in the house, IO1 Orellan marked the two plastic sachets. IO1 Orellan
testified that he immediately conducted the marking and physical inventory
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 of the two sachets of shabu . 27 To ensure that they were not interchanged,
he separately marked the item sold by Lim to IO1 Carin and the one that he
recovered from his possession upon body search as BB AEO 10-19-10 and
AEO-RI 10-19-10, respectively, with both bearing his initial/signature. 28
Evident, however, is the absence of an elected public official and
representatives of the DOJ and the media to witness the physical inventory
and photograph of the seized items. 29 In fact, their signatures do not appear
in the Inventory Receipt.
The Court stressed in People v. Vicente Sipin y De Castro: 30

The prosecution bears the burden of proving a valid cause for

non-compliance with the procedure laid down in Section 21 of R.A.
No. 9165, as amended. It has the positive duty to demonstrate
observance thereto in such a way that during the trial proceedings, it
must initiate in acknowledging and justifying any perceived
deviations from the requirements of law. Its failure to follow the
mandated procedure must be adequately explained, and must be
proven as a fact in accordance with the rules on evidence. It should
take note that the rules require that the apprehending officers do not
simply mention a justifiable ground, but also clearly state this ground
in their sworn affidavit, coupled with a statement on the steps they
took to preserve the integrity of the seized items. Strict adherence to
Section 21 is required where the quantity of illegal drugs seized is
miniscule, since it is highly susceptible to planting, tampering or
alteration of evidence. 31EcTCAD

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
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 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 noncompliance.
These considerations arise from the fact that police officers are
ordinarily given sufficient time — beginning from the moment they
have received the information about the activities of the accused until
the time of his arrest — to prepare for a buy-bust operation and
consequently, make the necessary arrangements beforehand
knowing full well that they would have to strictly comply with the set
procedure prescribed in Section 21 of RA 9165. As such, police
officers are compelled not only to state reasons for their non-
compliance, but must in fact, also convince the Court that they
exerted earnest efforts to comply with the mandated procedure, and
that under the given circumstances, their actions were reasonable. 34
In this case, IO1 Orellan testified that no members of the media and
barangay officials arrived at the crime scene because it was late at night and
it was raining, making it unsafe for them to wait at Lim's house. 35 IO2
Orcales similarly declared that the inventory was made in the PDEA office
considering that it was late in the evening and there were no available
media representative and barangay officials despite their effort to contact
them. 36 He admitted that there are times when they do not inform the
barangay officials prior to their operation as they might leak the confidential
information. 37 We are of the view that these justifications are unacceptable
as there was no genuine and sufficient attempt to comply with the law.
The testimony of team-leader IO2 Orcales negates any effort on the
part of the buy-bust team to secure the presence of a barangay official
during the operation:
ATTY. DEMECILLO:
xxx xxx xxx
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 of Justice (DOJ). While 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.
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 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. HSAcaE

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, Section 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.
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
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 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 Case 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, A.B.
Reyes, Jr., Gesmundo and J.C. Reyes, Jr., JJ., concur.
Del Castillo, * J., is on wellness leave.
Leonen and Caguioa, JJ., see separate concurring opinion.
Jardeleza, ** J., took no part; prior OSG action.

Separate Opinions
LEONEN, J., concurring:

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-
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 bust operations, which, by definition, are preplanned, deliberately arranged
or calculated operations.
Asserting proper compliance with chain of custody requirements — and
the ensuing acquittal of an accused due to the law enforcement officers'
unjustified non-compliance — is not a matter of calibrating jurisprudence. It
is merely a matter of applying the clear text of the Comprehensive
Dangerous Drugs Act.
I concur that the accused-appellant, Romy Lim, must be acquitted on
account of reasonable doubt.

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. AcICHD

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
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 of proof is on the prosecution, and unless it discharges
that burden the accused need not even offer evidence in
his behalf, and he would be entitled to an acquittal. Proof
beyond reasonable doubt does not, of course, mean such
degree of proof as, excluding the possibility of error,
produce absolute certainty. Moral certainty only is
required, or that degree of proof which produces
conviction in an unprejudiced mind. The conscience must
be satisfied that the accused is responsible for the
offense charged.
Well-entrenched in jurisprudence is the rule that
the conviction of the accused must rest, not on the
weakness of the defense, but on the strength of the
prosecution. The burden is on the prosecution to prove
guilt beyond reasonable doubt, not on the accused to
prove his innocence. 1

II

The requisites that must be satisfied to sustain convictions for illegal

sale of dangerous drugs under Section 5 of the Comprehensive Dangerous
Drugs Act are settled.
In actions involving the illegal sale of dangerous drugs, the
following elements must first be established: (1) proof that the
transaction or sale took place and (2) the presentation in court of the
corpus delicti or the illicit drug as evidence. 2 (Emphasis in the
original, citation omitted)
On the second element of corpus delicti, Section 21 of the
Comprehensive Dangerous Drugs Act, as amended by Republic Act No.
10640, spells out requirements for the custody and disposition of
confiscated, seized, and/or surrendered drugs and/or drug paraphernalia.
Section 21 (1) to (3) stipulate requirements concerning custody prior to the
filing of a criminal case:
Section 21. Custody and Disposition of Confiscated, Seized, and/or
Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs,
Controlled Precursors and Essential Chemicals,
Instruments/Paraphernalia and/or Laboratory Equipment. — The PDEA
shall take charge and have custody of all dangerous drugs, plant
sources of dangerous drugs, controlled precursors and essential
chemicals, as well as instruments/paraphernalia and/or laboratory
equipment so confiscated, seized and/or surrendered, for proper
disposition in the following manner:
(1) The apprehending team having initial custody and control
of the dangerous drugs, controlled precursors and essential
chemicals, instruments/paraphernalia and/or laboratory
e q u i p m e n t 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
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 confiscated and/or seized, or his/her representative or
c o u n s e l , 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.
(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;
TAIaHE

(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 item/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
Compliance with Section 21's chain of custody requirements ensures
the integrity of the seized items. Conversely, non-compliance with it
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 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
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 with the same degree of certitude as that needed to sustain a guilty
verdict. 13 (Emphasis supplied) cDHAES

III

As against the objective requirements imposed by statute, guarantees

coming from the prosecution concerning the identity and integrity of seized
items are naturally designed to advance the prosecution's own cause. These
guarantees conveniently aim to knock two targets with one blow. First, they
insist on a showing of corpus delicti divorced from statutory impositions and
based on standards entirely the prosecution's own. Second, they justify non-
compliance by summarily pleading their own assurance. These self-serving
assertions cannot justify a conviction.
Even the customary presumption of regularity in the performance of
official duties cannot suffice. People v. 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
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 maintained custody of the seized items is "negate[d]": 17

I n 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.
xxx xxx xxx
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) ASEcHI

The Comprehensive Dangerous Drugs Act requires nothing less than

strict compliance. Otherwise, the raison d'etre of the chain of custody
requirement is compromised. Precisely, deviations from it leave open the
door for tampering, substitution and planting of evidence.
Even the performance of acts which approximate compliance but do
n o t 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
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 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 the 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)

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 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. ITAaHc

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

The PDEA shall take charge and The PDEA shall take charge and
have custody of all dangerous have custody of all dangerous
drugs, plant sources of drugs, plant sources of
dangerous drugs, controlled dangerous drugs, controlled
precursors and essential precursors and essential
chemicals, as well as chemicals, as well as
instruments/paraphernalia instruments/paraphernalia and/or
and/or laboratory equipment so laboratory equipment so
confiscated, seized and/or confiscated, seized and/or
surrendered, for proper surrendered, for proper
disposition in the following disposition in the following
manner: manner:

(1) The apprehending team (1) The apprehending team

having initial custody and control having initial
of the drugs custody and control of the
dangerous drugs, controlled
shall, immediately after seizure precursors and essential
and confiscation, chemicals,
instruments/paraphernalia and/or
physically inventory laboratory equipment

and photograph the same shall, immediately after seizure

and
in the presence of the accused or confiscation,
the person/s from whom such
items were confiscated and/or conduct a physical inventory of
seized, or his/her representative the seized items
or counsel,
and photograph the same
a representative from the media
and the Department of Justice in the presence of the accused or
(DOJ), and any elected public the person/s from whom such
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 official items were confiscated and/or
seized, or his/her representative
who shall be required to sign the or counsel,
copies of the inventory and be
given a copy thereof; 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.

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.
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 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." CHTAIc

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"

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])
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 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.
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 IO1 Orellan during the inventory.
Q  Where did he conduct the inventory?
A  At our office.
Q  Where?
A  At the PDEA Office, sir.
xxx xxx xxx
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])
xxx xxx xxx
Q   How did Agent Orellan handle the evidence? The drugs he
recovered and the buy-bust item? And what did he do with it? EATCcI

A  He made an inventory.

Q  How about the marking?
A  He made markings on it.
Q  How did you know?
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
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 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.
xxx xxx xxx
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])
xxx xxx xxx
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"
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 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 of the two accused?
A  The accused did not sign, Sir. DHITCc

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
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 [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 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 8:00 pm up to the time they were
dispatched for the operation at around 9:45 pm. 43 cEaSHC

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?
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 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 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 of the seized items are properly preserved by the apprehending
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 officer/team, shall not render void and invalid such seizures of and
custody over said items[.] (Emphasis supplied) CTIEac

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])
xxx xxx xxx
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.
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 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.SaCIDT

As farcical as the buy-bust team's excuses are, it would be equally

farcical for us to condone it.

VII

The prosecution offers nothing more than sweeping excuses and self-
serving assurances. It would have itself profit from the buy-bust team's own
inadequacies. We cannot be a party to this profligacy.
Rather than rely on the courts' licentious tolerance and bank on
favorable accommodations, our police officers should be exemplary. They
should adhere to the highest standards, consistently deliver commendable
results, and remain beyond reproach. Section 21's requirements are but a
bare minimum. Police officers should be more than adept at satisfying them.
At stake are some of the most sacrosanct pillars of our constitutional
order and justice system: due process, the right to be presumed innocent,
the threshold of proof beyond reasonable doubt and the duty of the
prosecution to build its case upon its own merits. We cannot let these ideals
fall by the wayside, jettisoned in favor of considerations of convenience and
to facilitate piecemeal convictions for ostensible wrongdoing.
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 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.

CAGUIOA, J., concurring:

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
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 establishes the fact that a crime has been actually committed. 3 cHECAS

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
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 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)AHDacC

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
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 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. 9 165 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 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
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 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. IDSEAH

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
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 following requisites are present: (1) the existence of justifiable grounds to
allow departure from the rule on strict compliance; and (2) the integrity and
the evidentiary value of the seized items are properly preserved by the
apprehending team. 10 If these two elements are present, the seizures and
custody over the confiscated items shall not be rendered void and invalid.
It has also been emphasized that for the saving clause to be triggered,
the prosecution must first recognize any lapses on the part of the police
officers and justify the same. 11 Breaches of the procedure contained in
Section 21 committed by the police officers, left unacknowledged and
unexplained by the State, militate against a finding of guilt beyond
reasonable doubt against the accused as the integrity and evidentiary value
of the corpus delicti had been compromised. 12
In cases involving procedural lapses of the police officers, proving the
identity of the corpus delicti despite noncompliance with Section 21
requires the saving clause to be successfully triggered.
For this purpose, the prosecution must satisfy its two-pronged
requirement: first, credibly justify the noncompliance, and second,
show that the integrity and evidentiary value of the seized item
were properly preserved. 13 This interpretation on when the saving clause
is triggered is not novel. In Valencia v. People, 14 the Court held:
Although the Court has ruled that non-compliance with the
directives of Section 21, Article II of R.A. No. 9165 is not necessarily
fatal to the prosecution's case, the prosecution must still prove that
(a) there is a justifiable ground for the non-compliance, and (b) the
integrity and evidentiary value of the seized items were properly
preserved. Further, the non-compliance with the procedures must be
justified by the State's agents themselves. The arresting officers are
under obligation, should they be unable to comply with the
procedures laid down under Section 21, Article II of R.A. No. 9165, to
explain why the procedure was not followed and prove that the
reason provided a justifiable ground. Otherwise, the requisites under
the law would merely be fancy ornaments that may or may not be
disregarded by the arresting officers at their own convenience. 15
(Citations omitted)
In the case of People v. Barte , 16 the Court pronounced that the State
has the duty to credibly explain the noncompliance of the provisions of
Section 21:
When there is failure to comply with the requirements for
proving the chain of custody in the confiscation of contraband in a
drug buy-bust operation, the State has the obligation to credibly
explain such noncompliance; otherwise, the proof of the corpus delicti
is doubtful, and the accused should be acquitted for failure to
establish his guilt beyond reasonable doubt. 17 aCIHcD

I n 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
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 why the provisions of Section 21, RA 9165 were not complied with." 19
Likewise, in People v. Reyes: 20

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.
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
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 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. cHaCAS

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.
To my mind, however, notwithstanding a lack of showing of improper
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 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. Sanchez 30
is instructive:
The court apparently banked also on the presumption of
regularity in the performance that a police officer like SPO2 Sevilla
enjoys in the absence of any taint of irregularity and of ill motive that
would induce him to falsify his testimony. Admittedly, the defense did
not adduce any evidence showing that SPO2 Sevilla had any motive
to falsify. The regularity of the performance of his duties, however,
leaves much to be desired given the lapses in his handling of the
allegedly confiscated drugs as heretofore shown.
An effect of this lapse, as we held in Lopez v. Peo ple, 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: DACcIH

ANTI-DRUG OPERATIONAL PROCEDURES

xxx xxx xxx
V. SPECIFIC RULES
xxx xxx xxx
B. Conduct of Operation: (As far as practicable, all operations
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 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;
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 may be 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;
l. 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
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 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 IR R
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.HSCATc

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 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
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 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.
xxx xxx xxx
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 10 640, 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 3-1 (3.1) (b) (6) and (3.1) (b) (7) of the 2014 AIDSOTF
Manual, strict compliance is similarly demanded from police officers, thus:
6) During the actual physical inventory, the Seizing Officer must
mark, and photograph the seized/recovered pieces of
evidence in accordance with the provision of Section 21 of
RA 9165 as amended by RA 10 640 in the presence of:
(a) The suspect or persons from whom such items were
confiscated and/or seized or his/her representative or
counsel;
(b) With an elected Public Official; and IDTSEH

(c) Any representatives from the Department of Justice or

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 Media who shall affix their signatures and who shall be
given copies of the inventory.
(Note: The presence of the above-mentioned
witnesses shall only be required during the physical
inventory of the confiscated items. If in case,
witnesses mentioned above are absent, same
should be recorded in the report.
7) In warrantless searches and seizures like buy-bust operations,
the inventory and taking of photographs shall be made at the
nearest Police Station or Office of the Apprehending Officer or
Team whichever is practicable, however, concerned police
personnel must execute a written explanation to justify
non-compliance of the prescribed rules on inventory
under Section 21, RA 9165 as amended by RA 10640. x x x
(Emphasis and underscoring supplied)
The Court has ruled in People v. Zheng Bai Hui 35 that it will not
presume to set an a priori basis of what detailed acts police authorities
might credibly undertake and carry out in their entrapment operations.
However, given the police operational procedures, it strains credulity why
the police officers could not have (1) ensured the presence of the required
witnesses, or at the very least (2) marked, photographed, and physically
inventoried the seized items pursuant to the provisions of theirs own
operational procedures. 36
To my mind, therefore, while no a priori basis for the conduct of a valid
buy-bust operation is set, the noncompliance of the police with their
own procedures implicates (1) the operation of the saving clause and (2)
the appreciation of the presumption of regularity.
With this in mind, anything short of observance and compliance by the
PDEA and police authorities with the positive requirements of the law, and
even with their own internal procedures, means that they have not
performed their duties. If they did, then it would not be difficult for the
prosecution to acknowledge the lapses and justify the same — it needs
merely to present the justification in writing required to be executed by the
police under Sections 2-6 (2.33) (a) (4) and 3-1 (3.1) (b) (7) of the 2014
AIDSOTF Manual. After which, the court can proceed to determine whether
the prosecution had credibly explained the noncompliance so as to comply
with the first prong of the saving mechanism. I submit that without a
justification being offered, the finding that the integrity and probative weight
of the seized items are preserved can only satisfy the second prong and will
not trigger the saving clause.
It then becomes error to fill the lacuna in the prosecution's evidence
with the presumption of regularity, when there clearly is no established fact
from which the presumption may arise. As such, the evidence of the State
has not overturned the presumption of innocence in favor of the accused. 37
Based on these premises, I vote to GRANT the instant appeal and
REVERSE and SET ASIDE the Decision of the Court of Appeals dated
February 23, 2017 finding accused-appellant Romy Lim y Miranda guilty
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 beyond reasonable doubt of violating Sections 5 and 11, Article II of Republic
Act No. 9165.

Footnotes
* On wellness leave.
** No part.
1. Penned by Associate Justice Ronaldo B. Martin, with Associate Justices Romulo V.
Borja and Oscar V. Badelles, concurring; rollo, pp. 3-19; CA rollo, pp. 86-102.

2. Records, pp. 117-125; CA rollo, pp. 32-40.

3. Records (Criminal Case No. 2010-1073), pp. 3-4.
4. Records (Criminal Case No. 2010-1074), pp. 3-4.
5. Records (Criminal Case No. 2010-1073), pp. 19-20; records (Criminal Case No.
2010-1074), pp. 20-22.
6. Id. at 2; Id. at 2.
7. Spelled as "Bajar" in the Request for Laboratory Examination on Drug Evidence
(See Records of Criminal Case No. 2010-1073 [pp. 9-10] and Criminal Case
No. 2010-1074 [p. 9A]).
8. Records (Criminal Case No. 2010-1073), pp. 124-125; CA rollo, pp. 39-40.
9. Rollo , pp. 26-35.
10. R.A. No. 9165 took effect on July 4, 2002 (See People v. De la Cruz, 591 Phil.
259, 272 [2008]).
11. See People v. Badilla , 794 Phil. 263, 278 (2016); People v. Arenas , 791 Phil.
601, 610 (2016); and Saraum v. People , 779 Phil. 122, 132 (2016).
12. United States v. Rawlins , 606 F.3d 73 (2010).

13. United States v. Rawlins , supra note 12, as cited in United States v. Mehmood ,
2018 U.S. App. LEXIS 19232 (2018); United States v. De Jesus-Conception ,
652 Fed. Appx. 134 (2016); United States v. Rodriguez , 2015 U.S. Dist. LEXIS
35215 (2015); and United States v. Mark , 2012 U.S. Dist. LEXIS 95130
(2012).

14. See United States v. Rawlins , supra note 12, as cited in United States v. Mark ,
supra note 13.
15. See United States v. Cardenas , 864 F.2d 1528 (1989), as cited in United States
v. Yeley-Davis, 632 F.3d 673 (2011); United States v. Solis , 55 F. Supp. 2d
1182 (1999); United States v. Anderson , 1994 U.S. App. LEXIS 9193 (1994);
United States v. Hogg , 1993 U.S. App. LEXIS 13732 (1993); United States v.
Rodriguez-Garcia, 983 F.2d 1563 (1993); United States v. Johnson , 977 F.2d
1360 (1992); and United States v. Clonts , 966 F.2d 1366 (1992).
16. Mallillin v. People, 576 Phil. 576 (2008).
17. Mallillin v. People, supra, at 587, as cited in People v. Tamaño , G.R. No.
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 208643, December 5, 2016, 812 SCRA 203, 228-229; People v. Badilla , supra
note 11, at 280; Saraum v. People , supra note 11, at 132-133; People v.
Dalawis, 772 Phil. 406, 417-418 (2015); and People v. Flores, 765 Phil. 535,
541-542 (2015). It appears that Mallillin was erroneously cited as "Lopez v.
People" in People v. De la Cruz, 589 Phil. 259 (2008), People v. Sanchez, 590
Phil. 214 (2008), People v. Garcia , 599 Phil. 416 (2009), People v. Denoman ,
612 Phil. 1165 (2009), and People v. Abelarde , G.R. No. 215713, January 22,
2018.
18. People v. Vicente Sipin y De Castro, G.R. No. 224290, June 11, 2018; People v.
Amaro, 786 Phil. 139, 148 (2016); and People v. Enad, 780 Phil. 346, 358
(2016).
19. See People v. Sic-open , 795 Phil. 859, 872 (2016); People v. Badilla , supra note
11, at 275-276; People v. Dela Cruz, 783 Phil. 620, 632 (2016); People v.
Asislo, 778 Phil. 509, 516 (2016); People v. Dalawis, supra note 17, at 416;
and People v. Flores, supra note 17, at 540.
20. People v. Sic-Open , supra note 19, at 873; People v. Badilla , supra note 11, at
276; People v. Dela Cruz, supra note 19, at 633; People v. Asislo, supra note
19, at 516-517; People v. Dalawis, supra note 17, at 417; and People v.
Flores, supra note 17, at 541.
21. Senate Journal. Session No. 80. 16th Congress, 1st Regular Session. June 4,
2014. p. 348.

22. Id.
23. Id.
24. Id. at 349.
25. Id. at 349-350.
26. See People v. Mola , G.R. No. 226481, April 18, 2018.
27. TSN, June 2, 2011, pp. 25-28.
28. Id. at 17-19.

29. Under the original provision of Section 21 (1) of R.A. No. 9165, after seizure and
confiscation of the drugs, the apprehending team was required to
immediately conduct a physical inventory and to photograph the same in the
presence of (1) the accused or the person/s from whom such items were
confiscated and/or seized, or his/her representative or counsel, (2) a
representative from the media and (3) the DOJ, and (4) any elected public
official who shall be required to sign the copies of the inventory and be given
a copy thereof. As amended by R.A. No. 10640, it is now mandated that the
conduct of physical inventory and photograph of the seized items must be in
the presence of (1) the accused or the person/s from whom such items were
confiscated and/or seized, or his/her representative or counsel, (2) with an
elected public official and (3) a representative of the National Prosecution
Service or the media who shall sign the copies of the inventory and be given
a copy thereof (See People v. Ocampo , G.R. No. 232300, August 1, 2018;
People v. Allingag , G.R. No. 233477, July 30, 2018; People v. Vicente Sipin y
De Castro, supra note 18; People v. Reyes , G.R. No. 219953, April 23, 2018;
and People v. Mola , supra note 26).
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 30. Supra note 18.
31. See also People v. Reyes , supra note 29 and People v. Mola , supra note 26.
32. People v. Vicente Sipin y De Castro, supra note 18. See also People v. Reyes ,
supra note 29, and People v. Mola , supra note 26.
33. G.R. No. 233744, February 28, 2018. (Citations omitted).
34. See also People v. Crespo , G.R. No. 230065, March 14, 2018 and People v.
Sanchez, G.R. No. 231383, March 7, 2018. (Emphasis and underscoring
supplied)
35. TSN, June 2, 2011, p. 19.
36. TSN, August 5, 2011, p. 13.
37. Id. at 15.

38. Id. at 14-15.

39. See People v. Alvarado , G.R. No. 234048, April 23, 2018 and People v.
Saragena, G.R. No. 210677, August 23, 2017.
40. SEC. 5. When warrant of arrest may issue. — (a) By the Regional Trial Court. —
Within ten (10) days from the filing of the complaint or information, the judge
shall personally evaluate the resolution of the prosecutor and its supporting
evidence. He may immediately dismiss the case if the evidence on record
clearly fails to establish probable cause. If he finds probable cause, he shall
issue a warrant of arrest, or a commitment order if the accused has already
been arrested pursuant to a warrant issued by the judge who conducted the
preliminary investigation or when the complaint or information was filed
pursuant to Section 6 of this Rule. In case of doubt on the existence of
probable cause, the judge may order the prosecutor to present additional
evidence within five (5) days from notice and the issue must be resolved by
the court within thirty (30) days from the filing of the complaint of
information.
LEONEN, J., concurring:
1. Macayan, Jr. v. People , 756 Phil. 202, 213-214 (2015) [Per J. Leonen, Second
Division], citing CONST, (1987), Art. III, Sec. 1; CONST, (1987), Art. III, Sec. 14
(2); People of the Philippines v. Solayao, 330 Phil. 811, 819 (1996) [Per J.
Romero, Second Division]; and Basilio v. People of the Philippines, 591 Phil.
508, 521-522 (2008) [Per J. Velasco, Jr., Second Division].
2. People v. Morales y Midarasa , 630 Phil. 215 (2010) [Per J. Del Castillo Second
Division].
3. 639 Phil. 134 (2010) [Per J. Mendoza, Second Division].
4. Id. at 144-145, citing People v. Kamad , 624 Phil. 289, 304 (2010) [Per J. Brion,
Second Division].

5. 630 Phil. 215 (2010) [Per J. Del Castillo, Second Division].

6. Id. at 229.
7. People v. Laxa , 414 Phil. 156, 170 (2001) [Per J. Mendoza, Second Division], as
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 cited in People v. Orteza, 555 Phil. 700, 708 (2007) [Per J. Tinga, Second
Division].
8. 576 Phil. 576 (2008) [Per J. Tinga, Second Division].
9. Id. at 588-589.
10. 741 Phil. 78 (2014) [Per J. Leonen, Third Division].

11. Id. at 93.

12. 633 Phil. 393 (2010) [Per J. Perez, Second Division].
13. Id. at 403.
14. 624 Phil. 289 (2010) [Per J. Brion, Second Division].
15. Id. at 311.
16. Id.

17. People v. Navarrete , 665 Phil. 738, 749 (2011) [Per J. Carpio Morales, Third
Division]. See also People v. Ulat, 674 Phil. 484, 500 (2011) [Per J. Leonardo-
De Castro, First Division].

18. People v. Navarrete , 665 Phil. 738, 748-749 (2011) [Per J. Carpio Morales, Third
Division].
19. 588 Phil. 395 (2008) [Per J. Tinga, Second Division].
20. Id. at 405.

21. Id. at 403-406.

22. This is not entirely novel. The Implementing Rules and Regulations of Republic
Act No. 9165 already stated it. Nevertheless, even if it has been previously
stated elsewhere, it now takes on a greater significance. It is no longer
expressed merely in an administrative rule, but in a statute.
23. 778 Phil. 460 (2016) [Per J. Leonen, Second Division].
24. Id. at 475.

25. The buy-bust operation was conducted in 2010.

26. TSN dated June 2, 2011, pp. 17-18.
27. TSN dated July 22, 2011, pp. 10-12.
28. TSN dated August 5, 2011, p. 13.
29. RTC records (Crim. Case No. 2010-1073), p. 5, Affidavit of Arresting Officer.
30. TSN dated June 2, 2011, pp. 21-30.
31. TSN dated July 22, 2011, pp. 10-12.

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

33. RTC records (Crim. Case No. 2010-1073), p. 18, and RTC records (Crim. Case
No. 2010-1074), p. 16.
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 34. TSN dated August 5, 2011, p. 17.
35. TSN dated June 2, 2011, pp. 28-29.
36. 639 Phil. 134, 144 (2010) [Per J. Mendoza, Second Division].

37. People v. Mendoza , 736 Phil. 749 (2014) [Per J. Bersamin, First Division].
38. Id. at 764.
39. Id.
40. Ponencia , p. 3.
41. Id.; TSN dated June 2, 2011, p. 8. In Officer Orellan's testimony, he stated that
aside from himself, the buy-bust team was composed of "Regional Director
Layese, Deputy Director Atila, . . . IO1 Carin, IO2 Alfaro, IO1 Genita, IO1 Avila,
IO2 Orcales, IA2 Pica, IO1 Cardona[.]"
42. Id.
43. Id.
44. TSN dated June 2, 2011, pp. 36-37.
45. TSN dated August 5, 2011, p. 16.
46. Ponencia , p. 14.

47. Id.
48. Id.
49. Id.
50. TSN dated August 5, 2011, pp. 14-15.
51. RTC records (Crim. Case No. 2010-1073), p. 5, Affidavit of Arresting Officer.
52. Ponencia , p. 3.
53. J. Caguioa's Reflections, p. 2.

CAGUIOA, J., concurring:

1. People v. Magat , 588 Phil. 395, 402 (2008).
2. People v. Dumangay, 587 Phil. 730, 739 (2008).
3. Id.
4. People v. Santos, Jr. , 562 Phil. 458, 471 (2007).
5. People v. Crispo, G.R. No. 230065, March 14, 2018, p. 11; People v. Año , G.R.
No. 230070, March 14, 2018, p. 7; People v. Lumaya , G.R. No. 231983, March
7, 2018, p. 12; People v. Ramos, G.R. No. 233744, February 28, 2018, p. 9;
People v. Manansala , G.R. No. 229092, February 21, 2018, p. 9; People v.
Guieb, G.R. No. 233100, February 14, 2018, p. 9; People v. Paz , G.R. No.
229512, January 31, 2018, p. 11; People v. Miranda , G.R. No. 229671,
January 31, 2018, p. 11; People v. Jugo , G.R. No. 231792, January 29, 2018,
p. 9; People v. Mamangon , G.R. No. 229102, January 29, 2018, p. 9; People v.
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 Calibod, G.R. No. 230230, November 20, 2017, p. 9; People v. Ching , G.R. No.
223556, October 9, 2017, p, 10; People v. Geronimo , G.R. No. 225500,
September 11, 2017, p. 9; People v. Macapundag , G.R. No. 225965, March
13, 2017, 820 SCRA 204, 215; Gamboa v. People , 799 Phil. 584, 597 (2016);
see also People v. Dela Victoria, G.R. No. 233325, April 16, 2018, p. 10;
People v. Bintaib, G.R. No. 217805, April 2, 2018; People v. Segundo, G.R.
No. 205614, July 26, 2017, p. 17.
6. 736 Phil. 749 (2014).
7. Id. at 764.
8. See People v. Cayas , 789 Phil. 70, 79 (2016); People v. Havana , 776 Phil. 462,
475 (2016).

9. See id. at 80.

10. R.A. 9165, Sec. 21 (1), as amended by R.A. 10640.
11. See People v. Alagarme , 754 Phil. 449, 461 (2015).
12. See People v. Sumili, 753 Phil. 343, 352 (2015).
13. See People v. Capuno, 655 Phil. 226, 240-241 (2011); People v. Garcia, 599
Phil. 416, 432-433 (2009); People v. Reyes, G.R. No. 199271, October 19,
2016, 806 SCRA 513, 536-537.
14. 725 Phil. 268 (2014),
15. Id. at 286.

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

17. Id. at 13.
18. G.R. No. 208093, February 20, 2017, 818 SCRA 122.
19. Id. at 142; underscoring supplied.
20. Supra note 13.
21. Id. at 536.

22. Ponencia , pp. 15-16.

23. Id. at 13; emphasis omitted.
24. Id., citing People v. Sipin, G.R. No. 224290, June 11, 2018, p. 17.
25. RULES OF COURT, Rule 131, Sec. 3 (m) provides: "That official duty has been
regularly performed."

26. People v. Mendoza , supra note 6, at 770.

27. Id.
28. 718 Phil. 352 (2013).
29. Id. at 366.
30. 590 Phil. 214 (2008).
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 31. Id. at 242-243.
32. PNPM-D-O-3-1-99 [NG], the precursor anti-illegal drug operations manual prior
to the 2010 and 2014 AIDSOTF Manual.
33. PNP Handbook, PNPM-DO-DS-3-2-13, December 2013.
34. PNP Manual, PNPM-D-0-2-14 (DO), September 2014.
35. 393 Phil. 68,133 (2000).

36. Note also that the same PNPDEM lays down the guidelines for preparation in
buy-bust operations, including the preparation of inventory and
photographing equipment, save only from the a priori basis consideration
above.
37. See People v. Barte, supra note 16, at 22.

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