EN BANC

September 4, 2018

G.R. No. 231989

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee

vs.
ROMY LIM y MIRANDA, Accused-Appellant

DECISION

PERALTA, J.:

On appeal is the February 23, 2017 Decision 1 of the Court of Appeals (CA) in

CA-G.R. CR HC No. 01280-MIN, which affirmed the September 24, 2013
Decision2 of Regional Trial Court (RTC), Branch 25, Cagayan de Oro City, in
Criminal Case Nos. 2010-1073 and 2010-1074, finding accused-appellant Romy
Lim y Miranda (Lim) guilty of violating Sections 11 and 5, respectively, of Article II
of Republic Act (R.A.) No. 9165, or the Comprehensive Dangerous Drugs Act of
2002.

In an Information dated October 21, 2010, Lim was charged with illegal
possession of Methamphetamine Hydrochloride (shabu), committed as follows:

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 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, 101 Nestle

Carin, 102 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 ₱500.00 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 about15 minutes
before 10:00 p.m. and arrived in the target area at 10:00 p.m., more or less. IOI
Carin and the CI alighted froin the vehicle near the comer leading to the house of
"Romy," while IO1 Orellan and the other team members disembarked a few
meters after and positioned themselves in the area to observe. IOI Carin and the
CI turned at the comer 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 their arrest for selling
dangerous drug. They were ordered to put their hands on their heads and to
squat on the floor. IO1 Orellan recited the Miranda rights to them. Thereafter, IO1
Orellan conducted a body search on both. When he frisked Lim, no deadly
weapon was found, but something was bulging in his pocket. IO1 Orellan ordered
him to pull it out. Inside the pocket were the buy-bust money and a transparent
rectangular plastic box about 3x4 inches in size. They could see that it contained
a plastic sachet of a white substance. As for Gorres, no weapon or illegal drug
was seized.

IO1 Orellan took into custody the ₱500.00 bill, the plastic box with the plastic
sachet of white substance, and a disposable lighter. 101 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 (P02) Bajas  personally received the letter-requests and the two pieces of heat-
7

sealed transparent plastic sachet containing white crystalline substance. PSI

Caceres got urine samples from Lim and Gorres and conducted screening and
confirmatory tests on them. Based on her examination, only Lim was found
positive for the presence of shabu. The result was shown in Chemistry Report
No. DTCRIM-I96 and I97-2010. With respect to the two sachets of white
crystalline substance, both were found to be positive of shabu after a
chromatographic examination was conducted by PSI Caceres. Her findings were
reflected in Chemistry Report No. D-228-2010. PSI Caceres, likewise, put her
own marking on the cellophane containing the two sachets of shabu. After that,
she gave them to the evidence custodian. As to the buy-bust money, the
arresting team turned it over to the fiscal's office during the inquest.

Version of the Defense

Around 10:00 p.m. on October 19, 2010, Lim and Gorres were in their house in
Cabina, Bonbon, Cagayan de Oro City. Lim was sleeping in the bedroom, while
Gorres was watching the television. When the latter heard that somebody
jumped over their gate, he stood up to verify. Before he could reach the door,
however, it was already forced opened by the repeated pulling and kicking of
men in civilian clothing. They entered the house, pointed their firearms at him,
instructed him to keep still, boxed his chest, slapped his ears, and handcuffed
him. They inquired on where the shabu was, but he invoked his innocence. When
they asked the whereabouts of "Romy," he answered that he was sleeping inside
the bedroom. So the men went there and kicked the door open. Lim was then
surprised as a gun was pointed at his head. He questioned them on what was it
all about, but he was told to keep quiet. The men let him and Gorres sit on a
bench. Lim was apprised of his Miranda rights. Thereafter, the two were brought
to the PDEA Regional Office and the crime laboratory. During the inquest
proceedings, Lim admitted, albeit without the assistance of a counsel, ownership
of the two sachets of shabu because he was afraid that the police would imprison
him. Like Gorres, he was not involved in drugs at the time of his arrest. Unlike
him, however, he was previously arrested by the PDEA agents but was acquitted
in the case. Both Lim and Gorres acknowledged that they did not have any
quarrel with the PDEA agents and that neither do they have grudges against
them or vice-versa.

Rubenia, Lim's live-in partner and the mother of Gorres, was at her sister's house
in Pita, Pasil, Kauswagan the night when the arrests were made. The following
day, she returned home and noticed that the door was opened and its lock was
destroyed. She took pictures of the damage and offered the same as exhibits for
the defense, which the court admitted as part of her testimony.

RTC Ruling

After trial, the R TC handed a guilty verdict on Lim for illegal possession and sale
of shabu and acquitted Gorres for lack of sufficient evidence linking him as a
conspirator. The fallo of the September 24, 2013 Decision states:

WHEREFORE, premises considered, this Court finds that:

1. In Criminal Case No. 2010-1073, accused ROMY LIM y MIRANDA is hereby

found GUILTY of violating Section 11, Article II of R.A. 9165 and is hereby
sentenced to suffer the penalty of imprisonment ranging from twelve [12] years
and one [1] day to thirteen [13] years, and to pay 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. 9165, and is hereby
sentenced to suffer the penalty of LIFE IMPRISONMENT and to pay the Fine in
the amount of Five Hundred Thousand Pesos [P500,000.00].

3. In Criminal Case No. 2010-1074, accused ELDIE GORRES y NAVE is hereby

ACQUITTED of the offense charged for failure of the prosecution to prove his
guilt beyond reasonable doubt. The Warden of the BJMP having custody of
ELDIE GORRES y Nave, is hereby directed to immediately release him from
detention unless he is being charged of other crimes which will justify his
continued incarceration. 8

With regard to the illegal possession of a sachet of shabu, the RTC held that the
weight of evidence favors the positive testimony of IO1 Orellan over the feeble
and uncorroborated denial of Lim. As to the sale of shabu, it ruled that the
prosecution was able to establish the identity of the buyer, the seller, the money
paid to the seller, and the delivery of the shabu. The testimony of IO1 Carin was
viewed as simple, straightforward and without any hesitation or prevarication as
she detailed in a credible manner the buy-bust transaction that occurred.
Between the two conflicting versions that are poles apart, the RTC found the
prosecution evidence worthy of credence and no reason to disbelieve in the
absence of an iota of malice, ill-will, revenge or resentment preceding and
pervading the arrest of Lim. On the chain of custody of evidence, it was accepted
with moral certainty that the PDEA operatives were able to preserve the integrity
and probative value of the seized items.

In so far as Gorres is concerned, the R TC opined that the evidence presented

were not strong enough to support the claim that there was conspiracy between
him and Lim because it was insufficiently shown that he knew what the box
contained. It also noted Chemistry Report No. DTCRIM 196 & 197-2010, which
indicated that Gorres was "NEGATIVE" of the presence of any illicit drug based
on his urine sample.

CA Ruling

On appeal, the CA affirmed the RTC Decision. It agreed with the finding of the
trial court that the prosecution adequately established all the elements of illegal
sale of a dangerous drug as the collective evidence presented during the trial
showed that a valid buy-bust operation was conducted. Likewise, all the
elements of illegal possession of a dangerous drug was proven. Lim resorted to
denial and could not present any proof or justification that he was fully authorized
by law to possess the same. The CA was unconvinced with his contention that
the prosecution failed to prove the identity and integrity of the seized prohibited
drugs. For the appellate court, it was able to demonstrate that the integrity and
evidentiary value of the confiscated drugs were not compromised. The witnesses
for the prosecution were able to testify on every link in the chain of custody,
establishing the crucial link in the chain from the time the seized items were first
discovered until they were brought for examination and offered in evidence in
court. Anent Lim's defense of denial and frame-up, the CA did not appreciate the
same due to lack of clear and convincing evidence that the police officers were
inspired by an improper motive. Instead the presumption of regularity in the
performance of official duty was applied.

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

Our Ruling

The judgment of conviction is reversed and set aside, and Lim should be
acquitted based on reasonable doubt.
At the time of the commission of the crimes, the law applicable is R.A. No.
9165. 10 Section 1(b) of Dangerous Drugs Board Regulation No. 1, Series of
2002, which implements the law, defines chain of custody as -

the duly recorded authorized movements and custody of seized drugs or

controlled chemicals or plant sources of dangerous drugs or laboratory
equipment of each stage, from the time of seizure/confiscation to receipt in the
forensic laboratory to safekeeping to presentation in court for destruction. Such
record of movements and custody of seized item shall include the identity and
signature of the person who held temporary custody of the seized item, the date
and time when such transfer of custody were made in the course of safekeeping
and use in court as evidence, and the final disposition. 11

The chain of custody rule is but a variation of the principle that real evidence
must be authenticated prior to its admission into evidence. 12 To establish a chain
of custody sufficient to make evidence admissible, the proponent needs only to
prove a rational basis from which to conclude that the evidence is what the
party claims it to be. 13 In other words, in a criminal case, the prosecution must
offer sufficient evidence from which the trier of fact could reasonably
believe that an item still is what the government claims it to be. 14 Specifically in
the prosecution of illegal drugs, the well-established federal evidentiary rule in
the United States is that when the evidence is not readily identifiable and is
susceptible to alteration by tampering or contamination, courts require a more
stringent foundation entailing a chain of custody of the item with sufficient
completeness to render it improbable that the original item has either been
exchanged with another or been contaminated or tampered with. 15 This was
adopted in Mallillin v. People, 16 where this Court also discussed how, ideally, the
chain of custody of seized items should be established:

As a method of authenticating evidence, the chain of custody rule requires that

the admission of an exhibit be preceded by evidence sufficient to support a
finding that the matter in question is what the proponent claims it to be. It would
include testimony about every link in the chain, from the moment the item was
picked up to the time it is offered into evidence, in such a way that every person
who touched the exhibit would describe how and from whom it was received,
where it was and what happened to it while in the witness' possession, the
condition in which it was received and the condition in which it was delivered to
the next link in the chain. These witnesses would then describe the precautions
taken to ensure that there had been no change in the condition of the item and
no opportunity for someone not in the chain to have possession of the same. 17

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

Seizure and marking of the illegal

drug as well as the turnover by the
apprehending officer to the
investigating officer

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

Sec. 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered

Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors
and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory
Equipment. - The PDEA shall take charge and have custody of all dangerous
drugs, plant sources of dangerous drugs, controlled precursors and essential
chemicals, as well as instruments/paraphernalia and/or laboratory equipment so
confiscated, seized and/or surrendered, for proper disposition in the following
manner:

(1) The apprehending team having initial custody and control of the drugs shall,
immediately after seizure and confiscation, physically inventory and photograph
the same in the presence of the accused or the person/s from whom such items
were confiscated and/or seized, or his/her representative or counsel, a
representative from the media and the Department of Justice (DOJ), and any
elected public official who shall be required to sign the copies of the inventory
and be given a copy thereof[.]19

Supplementing the above-quoted provision, Section 21(a) of the Implementing

Rules and Regulations (IRR) of R.A. No. 9165 mandates:

(a) The apprehending officer/team having initial custody and control of the drugs
shall, immediately after seizure and confiscation, physically inventory and
photograph the same in the presence of the accused or the person/s from whom
such items were confiscated and/or seized, or his/her representative or counsel,
a representative from the media and the Department of Justice (DO.T), 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 noncompliance with these requirements under justifiable grounds, as
long as the integrity and the evidentiary value of the seized items are properly
preserved by the apprehending officer/team, shall not render void and invalid
such seizures of and custody over said items. 20

On July 15, 2014, R.A. No. 10640 was approved to amend R.A. No. 9165.
Among other modifications, it essentially incorporated the saving clause
contained in the IRR, thus:

(1) The apprehending team having initial custody and control of the dangerous
drugs, controlled precursors and essential chemicals, instruments/paraphernalia
and/or laboratory equipment shall, immediately after seizure and confiscation,
conduct a physical inventory of the seized items and photograph the same in the
presence of the accused or the person/s from whom such items were confiscated
and/or seized, or his/her representative or counsel, with an elected public official
and a representative of the National Prosecution Service or the media who shall
be required to sign the copies of the inventory and be given a copy
thereof: Provided, That the physical inventory and photograph shall be conducted
at the place where the search warrant is served; or at the nearest police station
or at the nearest office of the apprehending officer/team, whichever is
practicable, in case of warrantless seizures: Provided, finally, That
noncompliance of these requirements under justifiable grounds, as long as the
integrity and the evidentiary value of the seized items are properly preserved by
the apprehending officer/team, shall not render void and invalid such seizures
and custody over said items.

In her Sponsorship Speech on Senate Bill No. 2273, which eventually became
R.A. No. 10640, Senator Grace Poe admitted that "while Section 21 was
enshrined in the Comprehensive Dangerous Drugs Act to safeguard the integrity
of the evidence acquired and prevent planting of evidence, the application of said
section resulted in the ineffectiveness of the government's campaign to stop
increasing drug addiction and also, in the conflicting decisions of the
courts."21 Specifically, she cited that "compliance with the rule on witnesses
during the physical inventory is difficult. For one, media representatives are not
always available in all comers of the Philippines, especially in more remote
areas. For another, there were instances where elected barangay officials
themselves were involved in the punishable acts apprehended."22 In addition,
"[t]he requirement that inventory is required to be done in police station is also
very limiting. Most police stations appeared to be far from locations where
accused persons were apprehended."23

Similarly, Senator Vicente C. Sotto III manifested that in view of the substantial
number of acquittals in drug-related cases due to the varying interpretations of
the prosecutors and the judges on Section 21 of R.A. No. 9165, there is a need
for "certain adjustments so that we can plug the loopholes in our existing law"
and "ensure [its] standard implementation."24 In his Co-sponsorship Speech, he
noted:

Numerous drug trafficking activities can be traced to operations of highly

organized and powerful local and international syndicates. The presence of such
syndicates that have the resources and the capability to mount a counter-assault
to apprehending law enforcers makes the requirement of Section 21(a)
impracticable for law enforcers to comply with. It makes the place of seizure
extremely unsafe for the proper inventory and photograph of seized illegal drugs.

xxxx

Section 21(a) of RA 9165 needs to be amended to address the foregoing

situation. We did not realize this in 2002 where the safety of the law enforcers
and other persons required to be present in the inventory and photography of
seized illegal drugs and the preservation of the very existence of seized illegal
drugs itself are threatened by an immediate retaliatory action of drug syndicates
at the place of seizure. The place where the seized drugs may be inventoried
and photographed has to include a location where the seized drugs as well as
the persons who are required to be present during the inventory and photograph
are safe and secure from extreme danger.

It is proposed that the physical inventory and taking of photographs of seized

illegal drugs be allowed to be conducted either in the place of seizure or at the
nearest police station or office of the apprehending law enforcers. The proposal
will provide effective measures to ensure the integrity of seized illegal drugs
since a safe location makes it more probable for an inventory and photograph of
seized illegal drugs to be properly conducted, thereby reducing the incidents of
dismissal of drug cases due to technicalities.

Non-observance of the prescribed procedures should not automatically mean

that the seizure or confiscation is invalid or illegal, as long as the law
enforcement officers could justify the same and could prove that the integrity and
the evidentiary value of the seized items are not tainted. This is the effect of the
inclusion in the proposal to amend the phrase "justifiable grounds." There are
instances wherein there are no media people or representatives from the DOJ
available and the absence of these witnesses should not automatically invalidate
the drug operation conducted. Even the presence of a public local elected official
also is sometimes impossible especially if the elected official is afraid or scared.25
We have held that the immediate physical inventory and photograph of the
confiscated items at the place of arrest may be excused in instances when the
safety and security of the apprehending officers and the witnesses required by
law or of the items seized are threatened by immediate or extreme danger such
as retaliatory action of those who have the resources and capability to mount a
counter-assault.26 The present case is not one of those.

Here, IO1 Orellan took into custody the ₱500.00 bill, the plastic box with the
plastic sachet of white substance, and a disposable lighter. IO1 Carin also turned
over to him the plastic sachet that she bought from Lim. While in the house, IO1
Orellan marked the two plastic sachets. IO1 Orellan testified that he immediately
conducted the marking and physical inventory of the two sachets of shabu.27 To
ensure that .they were not interchanged, he separately marked the item sold by
Lim to 101 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 noncompliance
with the procedure laid down in Section 21 of R.A. No. 9165, as amended. It has
the positive duty to demonstrate observance thereto in such a way that during
the trial proceedings, it must initiate in acknowledging and justifying any
perceived deviations from the requirements of law. Its failure to follow the
mandated procedure must be adequately explained, and must be proven as a
fact in accordance with the rules on evidence. It should take note that the rules
require that the apprehending officers do not simply mention a justifiable ground,
but also clearly state this ground in their sworn affidavit, coupled with a statement
on the steps they took to preserve the integrity of the seized items. Strict
adherence to Section 21 is required where the quantity of illegal drugs seized is
miniscule, since it is highly susceptible to planting, tampering or alteration of
evidence.31

It must be alleged and proved that the -presence of the three witnesses to the
physical inventory and photograph of the illegal drug seized was not obtained
due to reason/s such as:
(1) their attendance was impossible because the place of arrest was a
remote area; (2) their safety during the inventory and photograph of the
seized drugs was threatened by an immediate retaliatory action of the
accused or any person/s acting for and in his/her behalf; (3) the elected
official themselves were involved in the punishable acts sought to be
apprehended; (4) earnest efforts to secure the presence of a DOJ or media
representative and an elected public official within the period required under
Article 125 of the Revised Penal Code prove futile through no fault of the
arresting officers, who face the threat of being charged with arbitrary detention;
or (5) time constraints and urgency of the anti-drug operations, which often rely
on tips of confidential assets, prevented the law enforcers from obtaining the
presence of the required witnesses even before the offenders could escape.32

Earnest effort to secure the attendance of the necessary witnesses must be

proven. People v. Ramos33 requires:

It is well to note that the absence of these required witnesses does not per
se render the confiscated items inadmissible. However, a justifiable reason for
such failure or a showing of any genuine and sufficient effort to secure the
required witnesses under Section 21 of RA 9165 must be adduced. In People
v. Umipang, the Court held that the prosecution must show that earnest
efforts were employed in contacting the representatives enumerated under the
law for "a sheer statement that representatives were unavailable without so much
as an explanation on whether serious attempts were employed to look for other
representatives, given the circumstances is to be regarded as a flimsy excuse."
Verily, mere statements of unavailability, absent actual serious attempts to
contact the required witnesses are unacceptable as justified grounds for
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. 35 102 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:

xx xx

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.

The testimonies of the prosecution witnesses also failed to establish the details
of an earnest effort to coordinate with and secure presence of the required
witnesses. They also failed to explain why the buy-bust team felt "unsafe" in
waiting for the representatives in Lim's house, considering that the team is
composed of at least ten (10) members, and the two accused were the only
persons in the house.

It bears emphasis that the rule that strict adherence to the mandatory
requirements of Section 21(1) of R.A. No. 9165, as amended, and its IRR may be
excused as long as the integrity and the evidentiary value of the confiscated
items are properly preserved applies not just on arrest and/or seizure by reason
of a legitimate buy-bust operation but also on those lawfully made in air or sea
port, detention cell or national penitentiary, checkpoint, moving vehicle, local or
international package/parcel/mail, or those by virtue of a consented search, stop
and frisk (Terry search), search incident to a lawful arrest, or application of plain
view doctrine where time is of the essence and the arrest and/or seizure is/are
not planned, arranged or scheduled in advance.

To conclude, judicial notice is taken of the fact that arrests and seizures related
to illegal drugs are typically made without a warrant; hence, subject to inquest
proceedings. Relative thereto, Sections 1 (A.1.10) of the Chain of Custody
Implementing Rules and Regulations directs:

A. I. I 0. Any justification or explanation in cases of noncompliance with the

requirements of Section 2I (1) of R.A. No. 9I65, 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. 9I65 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 i terns.

3. If there is no justification or explanation expressly declared in the sworn

statements or affidavits, the investigating fiscal must not immediately file the case
before the court. Instead, he or she must refer the case for further preliminary
investigation in order to determine the (non) existence of probable cause.

4. If the investigating fiscal filed the case despite such absence, the court may
exercise its discretion to either refuse to issue a commitment order (or warrant of
arrest) or dismiss the case outright for lack of probable cause in accordance with
Section 5,40 Rule 112, Rules of Court.

WHEREFORE, premises considered, the February 23, 2017 Decision of the

Court of Appeals in CA-G.R. CR HC No. 01280-MIN, which affirmed the
September 24, 2013 Decision of Regional Trial Court, Branch 25, Cagayan de
Oro City, in Criminal Cases Nos. 2010-1073 and 2010-1074, finding accused-
appellant Romy Lim y Miranda guilty of violating Sections 11 and 5, respectively,
of Article II of Republic Act No. 9165, is REVERSED and SET ASIDE.
Accordingly, accused-appellant Romy Lim y Miranda is ACQUITTED on
reasonable doubt, and is ORDERED IMMEDIATELY RELEASED from
detention, unless he is being lawfully held for another cause. Let an entry of final
judgment be issued immediately.

Let a copy of this Decision be furnished the Superintendent of the Davao Prison
and Penal Farm, B.E. Dujali, Davao del Norte, for immediate implementation.
The said Director is ORDERED to REPORT to this Court within five (5) days from
receipt of this Decision the action he has taken.

Let copies of this Decision be furnished to the Secretary of the Department of

Justice, as well as to the Head/Chief of the National Prosecution Service, the
Office of the Solicitor General, the Public Attorney's Office, the Philippine
National Police, the Philippine Drug Enforcement Agency, the National Bureau of
Investigation, and the Integrated Bar of the Philippines for their information and
guidance. Likewise, the Office of the Court Administrator
is DIRECTED to DISSEMINATE copies of this Decision to all trial courts,
including the Court of Appeals.

SO ORDERED.