FINDINGS/VIEW OF THE COURT:

AS TO CR FMY CASE NO. 2017-1292

Section 11 and 13 of R.A. 9165 state:

Section 11. Possession of Dangerous Drugs. - The penalty of life

imprisonment to death and a fine ranging from Five hundred
thousand pesos (P500,000.00) to Ten million pesos (P10,000,000.00)
shall be imposed upon any person, who, unless authorized by law,
shall possess any dangerous drug in the following quantities,
regardless of the degree of purity thereof:

(1) 10 grams or more of opium;

(2) 10 grams or more of morphine;
(3) 10 grams or more of heroin;
(4) 10 grams or more of cocaine or cocaine hydrochloride;
(5) 50 grams or more of methamphetamine hydrochloride or
"shabu";
(6) 10 grams or more of marijuana resin or marijuana resin oil;
(7) 500 grams or more of marijuana; and
(8) 10 grams or more of other dangerous drugs such as, but not
limited to, methylenedioxymethamphetamine (MDA) or "ecstasy",
paramethoxyamphetamine (PMA), trimethoxyamphetamine (TMA),
lysergic acid diethylamine (LSD), gamma hydroxyamphetamine
(GHB), and those similarly designed or newly introduced drugs and
their derivatives, without having any therapeutic value or if the
quantity possessed is far beyond therapeutic requirements, as
determined and promulgated by the Board in accordance to Section
93, Article XI of this Act.

Section 13. Possession of Dangerous Drugs During Parties, Social

Gatherings or Meetings. – Any person found possessing any
dangerous drug during a party, or at a social gathering or meeting, or
in the proximate company of at least two (2) persons, shall suffer the
maximum penalties provided for in Section 11 of this Act, regardless
of the quantity and purity of such dangerous drugs.

AS TO CR FMY CASE NO. 2017-1279

Section 12 and 14 of R.A. 9165 state:

Section 12. Possession of Equipment, Instrument, Apparatus and

Other Paraphernalia for Dangerous Drugs. - The penalty of
imprisonment ranging from six (6) months and one (1) day to four (4)
years and a fine ranging from Ten thousand pesos (P10,000.00) to
Fifty thousand pesos (P50,000.00) shall be imposed upon any person,
who, unless authorized by law, shall possess or have under his/her
control any equipment, instrument, apparatus and other
paraphernalia fit or intended for smoking, consuming, administering,

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 injecting, ingesting, or introducing any dangerous drug into the
body: Provided, That in the case of medical practitioners and various
professionals who are required to carry such equipment, instrument,
apparatus and other paraphernalia in the practice of their profession,
the Board shall prescribe the necessary implementing guidelines
thereof.

The possession of such equipment, instrument, apparatus and

other paraphernalia fit or intended for any of the purposes
enumerated in the preceding paragraph shall be prima facie evidence
that the possessor has smoked, consumed, administered to
himself/herself, injected, ingested or used a dangerous drug and shall
be presumed to have violated Section 15 of this Act.

Section 14. Possession of Equipment, Instrument, Apparatus and

Other Paraphernalia for Dangerous Drugs During Parties, Social
Gatherings or Meetings. - The maximum penalty provided for in
Section 12 of this Act shall be imposed upon any person, who shall
possess or have under his/her control any equipment, instrument,
apparatus and other paraphernalia fit or intended for smoking,
consuming, administering, injecting, ingesting, or introducing any
dangerous drug into the body, during parties, social gatherings or
meetings, or in the proximate company of at least two (2) persons.

In cases involving dangerous drugs, the State bears not only the
burden of proving these elements, but also proving the corpus delicti or the
body of the crime. In drug cases, the dangerous drug itself is the very corpus
delicti of the violation of the law. While it is true that a buy-bust operation is
a legally effective and proven procedure, sanctioned by law, for
apprehending drug peddlers and distributors, the law nevertheless also
requires strict compliance with procedures laid down by it to ensure that
rights are safeguarded.

There has been a plethora of jurisprudence on what procedures law

enforcement officers need to adhere to. In the recently decided case of
People v. Mario Manabat,1 the Supreme Court thru Justice Caguioa, duly
concurred by Justices Jose Reyes, Jr., Antonio Carpio, and Amy C. Lazaro-
Javier, emphasized the following important requirements necessary for the
conviction of a person accused of drug crimes. Strict compliance of
procedural requirements must be observed, failure of which could mean the
acquittal of the accused. Significantly, the following must be complied with:

1. The presence of the prescribed witnesses is required at the

time of the apprehension; or “at the time of the warrantless
arrest”;
2. the seized items be inventoried and photographed
immediately after seizure or confiscation; and
3. the physical inventory and photographing must be done in
the presence of (a) the accused or his/her representative or
1 Second Division, G.R. No. 242947, July 17, 2019,
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 counsel, (b) an elected public official, (c) a representative
from the media, OR (d) a representative from the Department
of Justice (DOJ), all of whom shall be required to sign the
copies of the inventory and be given a copy therefor.

The Supreme Court explained in People v. Tomawis, 2 that the

presence of the three witnesses must be secured not only during the
inventory but more importantly at the time of the warrantless arrest. It
is at this point in which the presence of the three witnesses is most needed,
as it is their presence at the time of seizure and confiscation that would belie
any doubt as to the source, identity, and integrity of the seized drug. If the
buy-bust operation is legitimately conducted, the presence of the insulating
witnesses would also controvert the usual defense of frame-up as the
witnesses would be able testify the buy-bust operation and inventory of the
seized drugs were done in their presence in accordance with Section 21 of
RA 9165.

Scrutiny of the records of this case would show that there was neither
a representative from the National Prosecution Service or the Media who
witnessed the Inventory of drug items and paraphernalia. Only the name of
Barangay Kagawad MELVIN LLAGAS is indicated as a witness as per
Inventory of Items allegedly seized from the accused. Prosecution, however,
did not present Barangay Kagawad MELVIN LLAGAS, nor detailed the
circumstances as to how and when the elected public official witnessed the
supposed buy bust operation and the subsequent Inventory of Seized Drug
Items and Paraphernalia.

SPO4 FRANCISCO A. DAYANDAYAN, JR. during Cross

Examination, states:

Q: And who witnessed the inventory?

A: It was Kagawad Melvin Llagas of Barangay Lagonglong, Misamis
Oriental.

Q: Now, you also mentioned a while ago that the operation or the
inventory was witnessed by the Local Barangay Official, who
invited the Local Barangay Official?
A: We coordinated the Barangay Official and in fact we have a
certificate of coordination as a proof that we coordinated with
them.

Q: I am showing to you a letter from Police Station 1 addressed to

one Kagawad Melvin Llagas, this is the coordination letter to the
Barangay Official that you are referring to?
A: Yes, ma'am.

Notably, if the Police Officers had the time and opportunity to write a
Letter addressed to Barangay Kagawad MELVIN LLAGAS for
coordination, why did they not coordinate as well with the Representative of
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G.R.228890, April 18, 2018
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the National Prosecution Service OR the Media. Moreover, there was no
explanation and/or justification of such failure, in contravention to the
requirements as set by the rules and elucidated in People vs. ROMY LIM y
MIRANDA,3 to wit:

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 efforts to secure the attendance of the necessary witnesses

must be proven. People v. Ramos4 declares:

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

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

4 August 17, 2017

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 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.5

Strict adherence to these procedural requirements are thus found

wanting in these cases.

The presumption of regularity in the performance of duty could not

prevail over the stronger presumption of innocence favouring the accused.
Otherwise, the constitutional guarantee of the accused being presumed
innocent would be held subordinate to a mere rule of evidence allocating the
burden of evidence.

ALL THE FOREGOING CONSIDERED, DEOVERN JAY B. UY,

KEVIN YOUNG JU, ALDREN BEBELLO PACUMA, KIMBERLY
BERNAL LAVILLA and CICL HANNAH BERNAL LAVILLA are
hereby ACQUITTED of the afore-captioned charges for failure of the
prosecution to prove their guilt beyond reasonable doubt. They are ordered
immediately RELEASED from detention, unless confined for any other
lawful cause.

IT IS SO ORDERED.

DONE this, 4th of Decembr 2019 at Cagayan de Oro City, Philippines.

EVELYN J. GAMOTIN-NERY
Presiding Judge

5See also People v. Crespo, G.R. No. 23?065, March 14, 2018 and People v. Sanchez, G.R. No. 231383,
March 7, 2018.
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