PEOPLE OF THE PHILIPPINES v ROMY LIM Y MIRANDA

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

Facts:
In 2010, an Information was filed against Romy Lim y Miranda (Lim) and his stepson, Eldie
Gorres y Nave (Gorres), charging them of illegal possession of shabu and illegal sale of
shabu, respectively.

According to the prose̶ cution, the buy-bust operation was conducted based on a report of a
confidential informant that a certain "Romy" has been engaged in the sale of prohibited
drugs. Intelligence Officer (IO) 2 Orcales, IO1 Orellan, and IO1 Carin were assigned as the
team leader, the arresting officer/back-up/evidence custodian, and the poseur-buyer,
respectively. During the operation, the police found in Lim’s pocket buy-bust money
and a transparent rectangular plastic box containing a plastic sachet of a white substance.
As for Gorres, no weapon or illegal drug was seized. While in Lim’s 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.

Then, they brought Lim and Gorres to the PDEA Regional Office. When IO1 Orellan made
the Inventory Receipt of the confiscated items, the same was not signed by Lim, Gorres or
of an elected public official and the DOJ representatives and the media as witnesses.
Pictures of both accused and the evidence seized were taken.

After laboratory examination, the Forensic Chemist found Lim’s urine sample positive for
the presence of shabu. The two plastic sachets were found both positive of shabu.

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. CA affirmed.

Issue:
Did the buy-bust team followed the procedure mandated in Section 21(1), Article II of R.A.
No. 9165?

Ruling: No.

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. The present case is not one of
those.

Here, IO1 Orellan took into custody the P500.00 bill, the plastic box with the plastic sachet
of white substance, and a disposable lighter. IO1 Carin also turned over to him the plastic
sachet that she bought from Lim. While in the house, IO1 Orellan marked the two plastic
sachets. IO1 Orellan testified that he immediately conducted the marking and physical
inventory of the two sachets of shabu. 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.

Evident, however, is the absence of an elected public official and representatives of

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.

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

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. 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.

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. We are of the view that
these justifications are unacceptable as there was no genuine and sufficient attempt
to comply with the law.

The prosecution likewise failed to explain why they did not secure the presence of a
representative from the Department the arresting officer, IO1 Orellan, stated in his
Affidavit that they only tried to coordinate with the barangay officials and the media, the
testimonies of the prosecution witnesses failed to show that they tried to contact a DOJ
representative.
The testimonies of the prosecution witnesses also failed to establish the details of an
earnest effort to coordinate with and secure presence of the required witnesses. They also
failed to explain why the buy-bust team felt "unsafe" in waiting for the representatives in
Lim's house, considering that the team is composed of at least ten (10) members, and the
two accused were the only persons in the house.

The judgment of conviction was reversed, and Lim was acquitted based on reasonable
doubt.

-/

Notes:

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.

The chain of custody rule is but a variation of the principle that real evidence must be
authenticated prior to its admission into evidence. 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.

The links in the chain of custody that must be established are:

At the time of the commission of the crimes, the law applicable is R.A. No. 9165. 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[.]

Supplementing the above-quoted provision, Section 21(a) of the Implementing Rules and
Regulations (IRR) of R.A. No. 9165 mandates:

(a) The apprehending officer/team having initial custody and control of the drugs shall,
immediately after seizure and confiscation, physically inventory and photograph the same
in the presence of the accused or the person/s from whom such items were confiscated
and/or seized, or his/her representative or counsel, a representative from the media and
the Department of Justice (DOJ), and any elected public official who shall be required to
sign the copies of the inventory and be given a copy thereof: Provided, that the physical
inventory and photograph shall be conducted at the place where the search warrant is
served; or at the nearest police station or at the nearest office of the apprehending
officer/team, whichever is practicable, in case of warrantless seizures; Provided, further,
that non-compliance with these requirements under justifiable grounds, as long as the
integrity and the evidentiary value of the seized items are properly preserved by the
apprehending officer/team, shall not render void and invalid such seizures of and custody
over said items.

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.