EN BANC

[G.R. No. 231989. November 13, 2018.]

PEOPLE OF THE PHILIPPINES, petitioner, vs. ROMY LIM y

MIRANDA, respondent.

NOTICE

Sirs/Mesdames :

Please take notice that the Court en banc issued a Resolution dated
NOVEMBER 13, 2018, which reads as follows:
"G.R. No. 231989 (People of the Philippines v. Romy Lim y
Miranda) — In a Letter dated October 17, 2018, the Philippine Drug
Enforcement Agency (PDEA) states that since the promulgation of People v.
Romy Lim y Miranda on September 4, 2018, there has been an alarming
increase in the number of dismissals or acquittals made with undue haste
premised on the said ruling, apparently requiring three (3) witnesses to be
present during the conduct of the physical inventory and the taking of
photographs of pieces of drug evidence seized from a drug suspect. The
PDEA claims that what seems to have assumed significance in Lim is the
apparent misinterpretation or misapplication of Section 21 of Republic Act
(R.A.) No. 9165, which requires three (3) witnesses to be present during the
physical inventory and taking of photographs of pieces of evidence seized
from a suspect.
The Court notes the Letter dated October 17, 2018 of the PDEA, but
denies the request for a detailed and more precise guideline of the ruling in
People v. Romy Lim y Miranda.
The mandatory policy laid down in Lim should not be given retroactive
effect. Pertinent portion of Lim clearly indicates a prospective application of
such policy:
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
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 pursuant to Section 86 (a) and (b), Article IX of the IRR of
R.A. No. 9165 shall be presented.
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: DcHSEa

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, 1 Rule 112, Rules of Court. 2
Synonymous to "henceforth" are "from now on," "from this point
forward," "henceforward," "afterward," "later," "subsequently," "hereupon"
or "thereupon." Without doubt, the mandatory policy in Lim is applicable only
to drug cases under R.A. No. 9165, as amended by R.A. No. 10640, 3 filed in
court after the promulgation of Lim on September 4, 2018.
The mandatory policy in Lim was laid down "in order to weed out early
on from the courts' already congested docket any orchestrated or poorly
built up drug-related case." The said policy is a procedural rule adopted for
the purpose of giving the trial courts 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 of the Rules of
Court, if there is no statement in the sworn statements or affidavits or
compliance with Section 21, R.A. No. 9165, as amended by R.A. No. 10640.
Such policy does not apply to cases filed before the promulgation of Lim
where the accused has already been arraigned and is undergoing continuous
trial, because the justifiable reasons for non-compliance with Section 21, R.A.
No. 9165, as amended by R.A. No. 10640, can still be established during
trial. Non-compliance with the policy in Lim is not a ground for acquittal
based on reasonable doubt or violation of the chain of custody rule, which
can only be decreed after trial, or pursuant to a demurrer to evidence under
Section 23, 4 Rule 119 of the Rules of Court. SCaITA

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 Contrary to the claim of PDEA, Lim does not always require three (3)
witnesses to be present during the conduct of the physical inventory and
taking of photographs of the seized dangerous drugs. It bears emphasis that
the accused in Lim was charged in two (2) Informations dated October 21,
2010 for drug offenses committed prior to the approval of R.A. No. 10640 on
July 15, 2014; hence, the applicable law then was Section 21, R.A. No. 9165
and its Implementing Rules and Regulations (IRR), which requires the
presence of three (3) witnesses.
I n People v. Vicente Sipin y De Castro, 5 the Court pointed out that
under the original provision of Section 21, R.A. No. 9165 and its IRR, the
apprehending team was required to immediately conduct a physical
inventory and photograph the drugs after their seizure and confiscation in
the presence of no less than three witnesses, namely: (1) a representative
from the media, and (2) the DOJ, and; (3) any elected public official who
shall be required to sign copies of the inventory and be given copy thereof.
The presence of the three witnesses was intended as a guarantee against
planting of evidence and frame up, as they were "necessary to insulate the
apprehension and incrimination proceedings from any taint of illegitimacy or
irregularity." 6 In contrast, R.A. No. 10640, which amended Section 21 of R.A.
No. 9165 and its IRR, now only requires two witnesses to be present during
the conduct of the physical inventory and taking of photograph of the seized
items, namely: (1) an elected public official; and (2) either a representative
from the National Prosecution Service or the media.
It is not amiss to stress, however, that both the IRR of Section 21 of
R.A. No. 9165 and R.A. No. 10640 similarly provide that the physical
inventory and photograph shall be immediately after seizure and
confiscation of the dangerous drugs, etc. (1) at the place where the search
warrant is served; or (2) at the nearest police station, or at the nearest office
of the apprehending officer/team, whichever is practicable, in case of
warrantless seizures.
Assuming that there is a perceived misinterpretation or misapplication
o f Lim, the proper remedy is to file a timely motion for reconsideration or
appeal, unless double jeopardy has set in, or even a petition for certiorari, in
case there is grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of the judge.
The PDEA further laments that law enforcement agencies are really
having a hard time securing the attendance of the witnesses stated in R.A.
No. 9165, as amended by R.A. No. 10640, because many witnesses,
especially those of the National Prosecution Service and locally-elected
officials, would not want to get involved in anti-drug operation and post-
operation processes. The PDEA adds that there are instances when the
available witnesses in the locality where the physical inventory and taking of
photographs of the pieces of evidence seized from an accused are suspected
to be connected or related to the suspect or the drug syndicate or group the
said witnesses are affiliated with, precluding the operating units from inviting
them as witnesses.

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 It would do well for PDEA to bear in mind that if there is any difficulty in
complying with Section 21, R.A. No. 9165, as amended by R.A. No. 10640
[e.g., absence of an elected public official and a representative of the
National Prosecution Service or the media], the law enforcement officers
must state in the sworn statements/affidavits the justifiable grounds for non-
compliance with the requirements, as well as the steps taken to preserve the
identity and evidentiary value of the seized/confiscated items, in order to
avoid dismissal of drug cases for lack of probable cause. Lim has, in fact,
restated some justifiable reasons that may be alleged and that the
prosecution would be obliged to prove during trial:
(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. 7
Besides, the legitimate concerns of the PDEA are not novel, and have
been addressed and considered in the enactment of R.A. No. 10640. In her
Sponsorship Speech on Senate Bill No. 2273, which eventually became R.A.
No. 10640, Senator Grace L. Poe conceded 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 the increasing drug addiction and also, in
the conflicting decisions of the courts." 8 Senator Poe stressed the necessity
for the amendment of Section 21 based on the public hearing that the
Senate Committee on Public Order and Dangerous Drugs had conducted,
which revealed 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 the remote areas. For
another there were instances where elected barangay officials themselves
were involved in the punishable acts apprehended and, thus, it is difficult to
get the most grass-root elected public official to be a witness as required by
law." 9 aTHCSE

In his Co-sponsorship speech, Senator Vicente C. Sotto III said that in

view of a substantial number of acquittals in drug-related cases due to the
varying interpretations of prosecutors and 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." 10
Senator Sotto explained why the said provision should be amended:
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 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 the seized illegal
drugs.
xxx xxx xxx
Section 21(a) of RA 9165 need 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 of illegal drugs 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 where 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. 11
While the PDEA concedes that Lim squarely falls on the application of
Section 21, R.A. No. 9165 prior to its amendment, the PDEA, likewise, insists
that the ruling in Lim — which requires three (3) witnesses to be present
during the physical inventory and taking of photograph — should not apply
to cases that happened after the effectivity of R.A. No. 10640.
Suffice it to state that the ruling in Lim is a contemporaneous
construction of the original Section 21 of R.A. No. 9165 and its IRR. Judicial
interpretation of a statute constitutes part of the law as of the date it was
originally passed, since the Court's construction merely establishes the
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 contemporaneous legislative intent that the interpreted law carried into
effect. 12 Such judicial doctrine does not amount to the passage of a new
law, but consists merely of a construction or interpretation of a pre-existing
one. 13 Significantly, the mandatory policy in Lim was adopted precisely to
address the pervasive issue of non-compliance with Section 21 of R.A. No.
9165, as amended by R.A. No. 10640, thus: cAaDHT

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.
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: x x x
14

WHEREFORE, the Letter dated October 17, 2018 of the Philippine Drug
Enforcement Agency is NOTED, and the request for a detailed and more
precise guideline of the ruling in People v. Romy Lim y Miranda is DENIED
for lack of merit.
The Court further Resolved to NOTE the Letter dated November 6,
2018 of C/Supt. Rufino A. Martin, MBA, CSMS, Officer-in-Charge, Davao
Prison and Penal Farm, B. E. Dujali, Davao del Norte, informing the Court that
pursuant to the Decision with Order of Release and Entry of Judgment, all
dated September 4, 2018, Person Deprived of Liberty (PDL) Romy Lim y
Miranda (No. D214P-0106) was immediately released from confinement at
the Davao Prison and Penal Farm on November 5, 2018." Jardeleza, J., no
part and on official leave. Tijam, Gesmundo and Hernando, JJ., on official
leave. (adv43) HCaDIS

Very truly yours,

(SGD.) EDGAR O. ARICHETA

Clerk of Court

Footnotes
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 1. 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.
2. Emphasis added.
3. AN ACT TO FURTHER STRENGTHEN THE ANTI-DRUG CAMPAIGN OF THE
GOVERNMENT, AMENDING FOR THE PURPOSE SECTION 21 OF REPUBLIC ACT
NO. 9165, OTHERWISE KNOWN AS THE "COMPREHENSIVE DANGEROUS
DRUGS ACT OF 2002."
4. Section 23. Demurrer to evidence. — After the prosecution rests its case, the
court may dismiss the action on the ground of insufficiency of evidence (1)
on its own initiative after giving the prosecution the opportunity to be heard
or (2) upon demurrer to evidence filed by the accused with or without leave
of court. If the court denies the demurrer to evidence filed with leave of
court, the accused may adduce evidence in his defense. When the demurrer
to evidence is filed without leave of court, the accused waives the right to
present evidence and submits the case for judgment on the basis of the
evidence for the prosecution. (15a)
  The motion for leave of court to file demurrer to evidence shall specifically
state its grounds and shall be filed within a non-extendible period of five (5)
days after the prosecution rests its case. The prosecution may oppose the
motion within a non-extendible period of five (5) days from its receipt.
  If leave of court is granted, the accused shall file the demurrer to evidence
within a non-extendible period of ten (10) days from notice. The prosecution
may oppose the demurrer to evidence within a similar period from its
receipt.
  span style="font-size: 12pt">The order denying the motion for leave of court to file demurrer
to evidence or the demurrer itself shall not be reviewable by appeal or by certiorari before
judgment. (n)
5. G.R. No. 224290, June 11, 2018.
6. People v. Sagana , G.R. No. 208471, August 2, 2017.

7. People v. Vicente Sipin y De Castro, supra.

8. Senate Journal, Session No. 80, 16th Congress, 1st Regular Session, June 4,
2014, p. 348.
9. Id.
10. Id.
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 11. Emphasis added.
12. Eagle Realty Corp. vs. Republic, G.R. No. 151424, July 31, 2009.

13. Id.
14. People of the Philippines v. Romy Lim y Miranda, G.R. No. 231989, September
4, 2018.

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