Republic of the Philippines

COURT OF APPEALS

Manila

 

 

SPECIAL SIXTH DIVISION

 

 

NBI SUPERVISING AGENT E. MARVIN DE JEMIL, PETRON GASUL DEALERS ASSOCIATION, TOTALGAZ DEALERS ASSOCIATION,

Petitioners

 

- versus -

 

HONORABLE RAUL M. GONZALEZ, SECRETARY, and HONORABLE ERNESTO L. PINEDA, OF THE DEPARTMENT OF JUSTICE, ARNEL U. TY, MARI ANTONETTE TY, JASON ONG, WILLY DY, and ALVIN TY,

Respondents.

CA-G.R. SP NO. 98054

 

 

 

Members:

 

REYES, JR., A.B.

Chairperson

*LONTOK, and

BATO, JR., JJ.

 

 

  

 

Promulgated:

 

September 20, 2007

 

 

 D E C I S I O N

 

 

BATO, JR., J.:

 

 

Assailed in this Petition for Certiorari under Rule 65 of the Revised Rules of Court is the October 9, 2006 Resolution1 of Honorable Ernesto L. Pineda, Undersecretary of the Department of Justice, which directed the withdrawal of the Informations against herein private respondents for violations of Section 2 (a) and 2 (c) of B.P. Blg. 33,2 as amended by P.D. 1865; as well as the December 14, 2006 Resolution3 of Honorable Raul M. Gonzalez Secretary of the Department of Justice, which denied the motion for reconsideration thereof.

 

The facts of the case are as follows:

 

On March 22, 2004, the National Bureau of Investigation (NBI) received a letter-complaint from Atty. Genesis M. Adario on behalf of several Liquefied Petroleum Gas Dealers Association, Inc., Petron Gasul Dealers Association, Inc., and Totalgaz Dealers Association, Inc., requesting assistance in the surveillance investigation and, if warranted, apprehension and prosecution of certain persons and/or establishments who/which are engaged in the illegal trading of establishments who/which are engaged in the illegal trading of petroleum products or possession of underfilled LPG cylinders in violation of BP 33, as amended.  One of the establishments suspected of violating said law is Omni Gas Corporation (OMNI), owned and controlled by private respondents Arnel Ty, Marie Antonette Ty, Jason Ong, Willy Dy, and Alvin Ty.

 

Acting on the complaint, the NBI Field Operations Division-Intelligence Service (NBI FOD-IS) conducted surveillance on OMNI’s refilling plant during the months of March and April 2004.4  On April 15, 2004, a test-buy was conducted where (8) empty LPG cylinders branded as Shellane, Gasul, Totalgaz,and Superkalan Gaz, were refilled at OMNI’s refilling plant for a consideration of One Thousand Five Hundred Twenty Eight Pesos (P 1,528.00) with Sales Invoice5 No. 90040 dated April 15, 2004.

 

On April 23, 2004, Noel N. Navio, Inspector of the Liquefied Petroleum Gas Industry Association (LPGIA), inspected the eight (8) LPG cylinders refilled by OMNI.6  The Inspection revealed that the LPG cylinders had no LPG valve seals, and one (1) cylinder was underfilled.7

 

Consequently, on application by the operatives of the NBI FODIS, the Regional Trial Court of Pasig City, Branch 167 issued Search Warrant Nos. 26248 and 26259 against the private respondents.  Upon implementation of the search warrants on the premises of OMNI in Sandoval Avenue, San Miguel, Pasig City, the following items were seized,10 to wit:

 

QUANTITY/UNIT

 

DESCRIPTION

 

7

Totalgaz LPG cylinders1.0 kg. (filled)

1

Petron Gasul LPG cylinder 11.0 kg. (filled)

1

Shellane LPG cylinder 11.0 kg.(filled)

29

Superkalan Gaz LPG cylinder 2.7 kg. (empty)

17

Petron Gasul LPG cylinder 2.7 kg (empty)

8

Shellane LPG cylinders marked as “Omnigas” 11.0 kg. (empty)

5

Totalgaz LPG cylinders marked as “Omnigas” 11.0 kg. (empty)

23

Shellane LPG cylinders 11.0 kg. (empty)

3

Petron Gasul LPG cylinders but remarked as “Omnigas” 11.0 kg. (empty)

21

Totalgaz LPG cylinders (empty)

 

Accordingly, two (2) criminal complaints,11 one for violation of Section 2 (a) of BP 33, as amended, in relation to Sections 3 (c) and 4 thereof, and the other for violation of Section 2 (c) of BP 33, in relation to Sections 3 and 4 thereof, were filled by petitioner Marvin E. De Jemil (“Agent De Jemil” for brevity) with the Prosecution Division of the Department of Justice (DOJ) against the private respondents.

 

The complaint for violation of Section 2 (c) which was docketed as I.S. No.2004-616, alleged that private respondents are criminally liable of underfilling LPG products and/or possession of underfilled LPG cylinders for the purpose of sale, distribution, transportation, exchange of barter.12  The second complaint, which was docketed as I.S. No. 2004-618, alleged that private respondents are criminally liable of illegal trading of LPG cylinders, i.e. refilling LPG cylinders branded as Shellane, Petron Gasul, Toatalgaz and Superkalan Gaz, without the respective companies’ written authorization, a clear violation of Section 2(a) in relation to Sections 3 (c) and 4 of BP 33, amended.13

 

In their Joint Counter-Affidavit,14 private respondents vehemently denied ownership of the LPG cylinders seized from OMNI’s premises, maintaining that the empty LPG cylinders were taken from the swapping section while the filled ones from the trucks belonged to their customers.  Private respondents contended that OMNI is a corporation duly licensed to engage in trading and refilling of LPG cylinders with adequate facilities and equipment.  They further contended that there is no probable cause that OMNI refilled the eight (8) LPG cylinders of Shell, Petron, Totalgaz and Superkalan Gaz as the receipt presented by NBI FOD-IS did not state with particularity the brand of LPG cylinders refilled by OMNI during the alleged “test-buy” operation and that there is no sufficient evidence that the eight (8) LPG cylinders supposedly refilled by OMNI are underfilled.  Private respondents posited that before any violation of Section 2 (a) in relation to Section 3 (c) of BP 33, as amended (illegal trading and refilling of LPG cylinders of another company) would lie, ownership of the subject cylinders must be determined.  Such a requirement is wanting in the present case since they are not the owners of the LPG cylinders in question but mere dealers of the brand or trademark they carry.  Private respondents further posited that the LPG cylinders brought to OMNI by household customers are already owned by said household users, thus, they can use it for whatever purpose they like including the purchase of another LPG brand.  The private respondents also pointed out that the industry practice of cylinder swapping is that customers would bring their own empty LPG cylinders and exchanges them for already filled LPG cylinders.  Lastly, private respondents posited that being mere directors or officers of OMNI, they cannot be held liable as provided for by the said law because they are not in-charge of the management of the business affairs of the said corporation.

 

In his Reply-Affidavit,15 Agent De Jemil retorted that despite the fact that private respondents’ corporation is duly licensed to operate a refilling plant or station, it does not necessarily follow that they can no longer violate the provisions of BP 33, as amended.  He pointed out that notwithstanding the fact that the receipt presented by NBI FOD-IS did not state with particularly the brand names of the LPG cylinders, he personally witnessed the illegal refilling of the same by OMNI employees.  He posited further that the question as to whether or not the customers of OMNI would bring their own empty LPG cylinders to exchange them for another refilled LPG cylinder is not the crux of the matter, but it is whether or not OMNI has refilled, is refilling and/or continues to refill Petron Gasul, Shellane, Superkalan Gaz, and Totalgaz LPG cylinders without the permission of the said companies.  He also posited that while some LPG cylinders taken during the raid were from a marked section of the premises of OMNI, a good number of LPG cylinders were done.  There were taken from the place where the refilling of the cylinders were done.  There were even walk-in customers who entered OMNI’s premises to have their empty branded LPG cylinders refilled which all the more proves that OMNI is known to be refilling branded LPG cylinders.  As to the last contention of the private respondents, Agent De Jemil countered that it would be highly incredible and preposterous for anyone to believe that private respondents, who are all directors and at the same time majority of them are the highest ranking officials of OMNI, are not in-charge with the management of the business affairs of the said company.

 

On November 7, 2005, the Office of the Chief State Prosecutor issued a Joint Resolution16 finding probable cause against the private respondents.  The pertinent portions thereof read:

 

“After evaluation of the evidence submitted by both parties, this Office finds probable cause to hold all the respondents criminally liable for violation of Section 2 [a] (illegal trading of LPG cylinders) and Section 2 [c] (underfilling of LPG cylinders), both of BP33, as amended.

 

Section 2 [a] of BP 33, as amended, prohibits the illegal trading in petroleum and/or petroleum products, which is specifically defined by Section 3[c] of the same law, to wit:

 

(c) Refilling of liquefied petroleum gas cylinders without authority from said Bureau, or refilling of another company’s of firm’s cylinders without such company’s of firm’s written authorization’ (Underscoring and emphasis supplied).

 

Based on the foregoing, taking into consideration the surveillance and investigation conducted by the NBI FOD-IS and the documentary evidence submitted by complainants LPGDA, it clearly established the fact that respondents and/or OMNI Gas is not an authorized refiller of Shellane, Petron Gasul, Totalgaz, and Superkalan LPG cylinders andin the absence of the required written authorization proceeded to refill complainant’s LPG cylinders in wanton violation of the law.

 

Respondents claim that the ownership of the LPG cylinders does not belong either to the above-named LPG companies or to complainants LPGDA but to the household users who have already purchased the same is without merit, considering that the ownership of the LPG cylinders are shown by the stamp markings appearing on the LPG cylinders themselves, which provide that said LPG cylinders are properties of their respective companies. Obviously, there is prima facie evidence that respondents violated Section 2 [a], in relation to Sections 3 [c], and 4, of BP 33, as amended.

 

The allegation in the criminal complaint of underfilling under Section 2 [c] of BP 33, as amended, finds support in the uncontroverted Inspection Report of LPGIA, Inspector Noel N. Navio.

 

“WHEREFORE, premises considered, it is hereby recommended that two (2) Informations for violations of Section 2[c] (illegal trading in petroleum and/or petroleum products) and Section2 [c] (underfilling of LPG cylinders), both of Batas Pambansa Bilang 33, as amended, be filled against respondents ARNEL TY, MARIE ANTONETTE TY, JASON ONG, WILLY DY and ALVIN TY.”

 

A Motion for Reconsideration17 of the aforestated Resolution was filled by private respondents on February 9, 2006, which was duly opposed18 by the petitioners.  A Reply19 thereto was then filled by petitioners.  However, the said motion was not favorably acted upon20 prompting the private respondents to file a Petition for Review21 with the Office of the DOJ Secretary on June 1, 2000.

 

Meanwhile, two (2) separate Informations for violation of BP33, as amended were filled against private respondents before the Office of the Clerk of Court of the Regional Trial Court of Pasig City.22

 

On October 9, 2006 public respondent DOJ Undersecretary Ernesto Pineda, issued the assailed 1st Resolution23 granting private respondents’ Petition for Review and thereby reversing and setting aside the joint resolution of the Office of the State Prosecutor.  Consequently, public respondent DOJ Undersecretary directed the withdrawal of the Informations against the respondents. Quoted hereunder are the salient portions of the said resolution:

 

“Verily, there is no basis in finding probable cause for underfilling against respondents.  One of the eight (8) cylinders allegedly filled during the alleged “test buy”, only one was said to be underfilled. Such one and isolated instance of underfilling, even if true, cannot give rise to a sweeping conclusion that Omni had indeed willfully and illegally engaged itself in underfilling LPG cylinders for sale as part of its business practices.  Such isolated underfilling can be said to have been caused by an oversight or technical or honest human error, unless other circumstances show a clear pattern of deliberate underfilling.  Other than the one and only underfilled LPG cylinder, there is no indication of a pattern of underfilling that would show a willful act of deception or fraud on the part of Omni.  In fact, not one of those more numerous filled LPG cylinders subsequently seized from Omni by virtue of the search warrants was shown to be underfilled.

 

A mere underfilling, even of more than one gas cylinder, if not substantial and deliberate, is not necessarily a violation of Batas Blg 33, as amended.  Not even the most advanced machine or equipment or the most diligent and prudent person could precisely and consistently comply with a given measurement or standard, especially in a numerous and successive but similar and repetitive activities such as LPG cylinder refillings.  Overfilling or underfilling may happen under these circumstances.  This is precisely the reason why section 2 (c) of Batas Blg. 33, as amended, only punishes “underfilling beyond authorized limits” and not otherwise.  Insubstantial or insignificant underfillings of LPG cylinders for sale, especially if done innocently, is not punishable under the said law.  Remarkably, complainant NBI and LPGIA did not state to what extent did the LPG cylinder was underfilled in the alleged “test buy” operation.

 

Complainant NBI’s plain declaration of underfilling by respondent’s is even clouded with doubt as the volume or weight verification or inspection on the eight (8) LPG cylinders was solely anchored on the inspection and discovery of Noel V. Navio, an inspector of LPGIA, which stands in this case as on of the private complainants.  Without doubt, such declaration is self serving which is not impressed with merit.

 

There is likewise no sufficient basis to hold respondents liable for violation of Section 2 (c) (sic) of Batas Blg. 33, as amended, which prohibits the refilling of another company of firm’s LPG cylinder without is written authorization.  Before one could be charged with this offense, it must be proven that the LPG cylinder without its written authorization.  Before one could be charged with this offense, it must be proven that the LPG cylinder that was filled belongs to another company or firm.  Other than the marks or brands appearing on the LPG cylinders and the written statement of ownership stamped or printed thereon, it could not be conclusively proven that the said cylinders that were claimed to have been filled by Omni belong to another company or firm.  The appearances and colors of LPG cylinders can be changed, altered or modified by simple manual reformation or repainting, in the same way that marks and brands printed thereon, may be conveniently altered or changed, In short ownership of these LPG cylinders cannot be based solely and reliably on the brands and marks or statements printed or stamped thereon because they are susceptible to tampering.  The said company or firm should have provided some kind of scientific or technical foolproof way of identifying their LPG cylinders, such as serial numbers engraved on the cylinders backed up by official records or inventories of these serialized cylinders.  This however, does not obtain in the case at bar.

 

Even then, as rightly argued by respondents, even assuming that the LPG cylinders were initially distributed and owned by another company or firm, or bear their brands or marks, there is no proof that they remain the owners thereof, as ownership had been transferred to consumers and the others by way of sale or other mode of disposition.

 

It is common and time honored practice that when a consumer initially buys a liquefied petroleum gas in an LPG cylinder.  The consumer then takes full control, ownership and possession of both the gas and LPG cylinder.  He may thereafter keep, resell, swap reuse it to his liking or even destroy the same.  The contract between the consumer and the distributor is, for all intents and purposes, evidently a sale of both the gas and LPG cylinder.  The consumers may than (sic) exercise all the attributes of ownership over the LPG cylinder and the original owner, which is the gas company, looses the (sic) complete control and ownership of the same, notwithstanding any statement printed on the purchase receipt or on the LPG cylinder or demanding the return thereof after purchase except probably in exchange for a new filled up cylinder upon repurchase of liquefied petroleum gas.  Consequently, the LPG cylinders that were found in Omni, though initially owned and bearing the marks of another company or firm, belonged to the consumers who brought them into Omni’s premises, or Omni itself, which may have, in turn acquired ownership therefore through swapping.

 

WHEREFORE, the assailed resolution is hereby REVERSED and SET ASIDE.  The Chief State Prosecutor is directed to cause the withdrawal of the informations for violations of Sections 2 (a) and 2 (c) of B.P. Blg. 33, as amended by PD1865, against respondents Arnel Ty, Mari Antonette Ty, Jason Ong Willy Dy and Alvin Ty and report the action taken within ten (10) days from receipt hereof.

 

SO ORDERED.24

 

Petitioners then filed a Motion for Reconsideration25 of the aforementioned resolution, arguing that the conclusion reached as regards the susceptibility of tampering of the embossed brands and markings are speculative and argumentative.

 

The stressed that the LPG cylinders used by the NBI operatives during the test-buy operation were not tampered as evidenced by the photographs taken therefrom. The contended that there were also tampered LPG cylinders carrying the brands of Totalgaz, Petron Gasul, Superkalan Gaz and Shellane that were seized by them from the refilling plant of OMNI.  As to the ruling that the customers become the owners of the LPG cylinders upon purchase of their contents, petitioners argued that the customers pay an additional amount for the said branded transfer ownership from the manufacturer and/or distribution only by way of “deposit” which can be refunded in exchange of the said branded LPG cylinders. They declared that if any of those branded LPG cylinders fall short of the standard requirements imposed by the State and if the same caused by any damage, it is not the end-consumers that are held liable, but he distributors and/or manufacturers themselves, therefore, ownership thereof is retained by the LPG companies.  They also contended that probable cause for commission of underfilling of LPG products by the private respondents was sufficiently established as the law does not contemplate that the underfilling be substantial, deliberate and repetitive.

 

After private respondents filed their Comment/Opposition26 to the petitioners’ Motion for Reconsideration, the second assailed Resolution dated December 14, 2006 was issued, this time by public respondent DOJ Secretary Raul M. Gonzalez.  The second assailed Resolution denied petitioners’ Motion for Reconsideration on the premise that the issues raised therein were duly considered and passed upon in the October 9, 2006 Resolution.

 

Hence, the instant petition for certiorari based on the following grounds:

 

I.

 

THE PUBLIC RESPONDENTS GRAVELY ABUSED THEIR DISCRETION AMOUNTING TO LACK OR IN EXCESS OF JURISDICTION WHEN THEY RULED ON THE ISSUE OF OWNERSHIP OF LPG CYLINDERS CONTRARY TO EXISTING LAWS, RULES AND REGULATIONS AND USURPING THE FUNCTIONS AND AUTHORITY OF THE DEPARTMENT OF ENERGY.

 

II.

 

THE PUBLIC RESPONDENTS GRAVELY ABUSED THEIR DISCRETION AMOUNTING TO LACK OR IN EXCESS OF JURISDICTION WHEN THEY RULED THAT THERE IS NO BASIS FOR FINDING PROBABLE CAUSE AGAINST THE PRIVATE RESPONDENTS FOR VIOLATION OF ILLEGAL TRADING OF LPG PRODUCTS PUNISHABLE UNDER SECTION 2 (A). IN RELATION TO SECTIONS 3 (C) AND 4, OF BP 33, AS AMENDED.

 

III.

 

THE PUBLIC RESPONDENTS GRAVELY ABUSED THEIR DISCRETION AMOUNTING TO LACK OR IN EXCESS OF JURISDICTION WHEN THEY RULED THAT THERE IS NO BASIS FOR FINDING PROBABLE CAUSE AGAINST THE PRIVATE RESPONDENTS FOR VIOLATION OF UNDERFILLING OF LPG PRODUCTS PUNISHABLE UNDER SECTION 2 (C), IN RELATION TO SECTIONS 3 AND 4, OF BP 33, AS AMENDED.

 

By way of Comment,27 private respondents question the propriety of this petition contending that it is not the adequate nor the appropriate remedy provided by law to assail the questioned DOJ resolutions.

 

We do not, however, agree with the above contention of the private respondents. It bears stressing that a writ certiorari is of the highest utility and importance of curbing excessive jurisdiction and correcting errors and most essential to the safety of the people and the public welfare.28  Its scope has been broadened and extended, and is now one of the recognized modes for the correction of errors by this Court.29  The cases in which it will lie cannot be defined.  To do so would be to destroy its comprehensiveness and limit its usefulness.30  Hence, certiorari under Rule 65 of the 1997 Rules of Civil Procedure is the appropriate remedy available to the aggrieved party if the Secretary of Justice commits grave abuse of discretion amounting to lack or excess of jurisdiction.31

 

Going now to the merits of case at bar.

 

The pivotal issue to be resolved is whether or not he public respondents committed grave abuse of discretion amounting to lack or excess of jurisdiction in reversing the findings of the Office of the Chief State Prosecutor on the existence of profitable cause against private respondents for violations of Section 2(a), in relation to Sections 3 (c) and 4, and Section 2 (c) in relation to Sections 3 and 4, of BP 33, as amended.

 

We hold that public respondents, indeed, acted with grave abuse of discretion amounting to lack or excess of jurisdiction.  Otherwise stated, the instant petition is impressed with merit.

 

Traditionally, grave abuse of discretion is confined to capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction.32  There is grave abuse of discretion where the power is exercised in arbitrary or despotic manner by reason of passion, prejudice or personal hostility amounting to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined or to act all in contemplation of law.33  However, the meaning of grave abuse of discretion has been expanded to include any action done contrary to the constitution, the law or jurisprudence.34

 

It must be stressed that the City Prosecutor in determining probable cause is required only to determine whether or not the person or persons against whom a specific complaint is filed has performed specific acts, or committed specific omissions, in violation of existing provisions of law.  In determining probable cause for the filing of information in court, the City Prosecutor is not required that all reasonable doubt of the guilt of the accused must be removed.  Thus, in Trocio vs. Manta35, the Supreme Court held that:

 

“When a fiscal investigates a complaint in order to determine whether he should file charges with the court against the person complained of, the scope of the investigation is far short of a trail of an accused before the court.  It is not required that all reasonable doubt of the guilt of the accused must be removed; It is only required that the evidence be sufficient to establish probable cause that the accused committed the crime charged. xxx  (Emphasis supplied.)

 

Pertinent also is the following pronouncement of the Supreme Court in the case of Pilapil vs. Sandiganbayan:36

 

“Probable cause has been defined in the leading case of Buchanan vs. Vda. De Esteban as the existence of such facts and circumstances as would excite the belief, in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted.

 

Probable cause is a reasonable ground of presumption that a matter is, or may be, well founded, such as a state of facts in the mind of the prosecutor as would lead a person of ordinary caution and prudence to believe, or entertain an honest or strong suspicion that a thins is so.  The term does not mean ‘actual and positive cause’ nor does it import absolute certainty. It is merely based on opinion and reasonable belief. Thus, a finding of probable cause does not require an inquiry as to whether there is sufficient evidence to procure a conviction.  It is enough that it is believed that the act or omission complained of constitutes the offense charged.  Precisely, there is a trial for the reception of the evidence of the prosecution in support of the charge.”  (Emphasis supplied)

 

In the case of Webb vs. De Leon,37 the Supreme Court declared that:

 

“A finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been committed and was committed by the suspects.  Probable cause need not be based on clear and convincing evidence of guilt, neither on evidence establishing guilt beyond reasonable doubt and definitely, not an evidence establishing absolute certainty of guilt.  As well put in Brinegar v. United States, while probable cause demands more than “bare suspicion,” it requires “less than evidence which would justify x x x conviction.”  A finding of probable cause merely binds over the suspect to stand trail.  It is not a pronouncement of guilt.”

 

In I.S. No. 2004-616, private respondents are being prosecuted for underfilling of LPG cylinders in violation of Section 2 (c) in relation to Sections 3 and 4 of BP Blg. 33, as amended.  However, public respondent DOJ Undersecretary Ernesto Pineda resolved that there is no basis in finding probable cause for the violation thereof by the private respondents because it was only an isolated instance of underfilling.  He further ruled that insubstantial or insignificant underfillings of LPG for sale, especially if done innocently, is not punishable under the said law.

 

We do not agree.

 

Section 1 of Presidential Decree No. 1865, which amended BP 33 provides that:

 

“SECTION 1. Section 2 of Batas Pambansa Blg. 33, as amended is further amended to read as follows:

 

“Sec. 2.  Prohibited Acts.  – The following acts are prohibited and penalized:

 

“(a) Illegal trading in petroleum and/or petroleum products;

 

“(b) Adulteration of finished petroleum products, or possession of adulterated finished petroleum products for the purpose of sale, distribution, transportation, exchange or barter.

 

(c) Underdelivery or underfilling beyond authorized limits in the sale of petroleum products or possession of underfilled liquefied petroleum gas cylinder for the purpose of sale, distribution, transportation, exchange or barter;” (Emphasis supplied)

 

Section 2 of the aforementioned law further provides that:

 

SECTION 2.  Section 3 of the same Act is hereby amended to read as follows:

 

‘Section 3.  Definition of terms.  – For the purpose of this Act, the following terms shall be construed to mean:

 

xxx xxx

 

Underfilling or Underdelivery – Refers to a sale, transfer, delivery or filling of petroleum products of a quantity that is actually beyond anthorizes limits than the quantity indicated or registered on the metering device of the container.  This refers among others, to the quantity of petroleum retail outlets or to liquefied petroleum gas in cylinder or lube oils in packages.”  (Emphasis supplied)

 

Nowhere can it be found in the aforementioned provisions of the law that for underfilling or underdelivery of LPG cylinder to be punished thereby, it must be shown to be substantial and deliberate. Conversely, what is readily apparent in the said provisions is that even a single or isolated instance of underfilling or underdelivery of LPG cylinder is punishable under BP Blg. 33 as amended by PD No. 1865.

 

In the case at Bench, contrary to the findings of the public respondents, there is probable cause to believe that private respondents violated the above quoted provisions of BP Blg. 33 as amended by PD No. 1865. After the conduct of the test-buy operation of the NBI FODI-IS, the refilled cylinders bought at Omni was thereafter weighed, inspected and examined by Inspector Noel N, Navio.  This fact was witnessed by Agent De Jemil as categorically narrated by him in his Complaint-Affidavit.38  The inspection revealed thereof revealed that the eight (8) refilled cylinders without seals and one (1) refilled cylinders was underfilled.  This was shown by the Inspection Report39 of Inspector Noel N. Navio which the petitioners presented during the preliminary investigation.  Pictures40 of the refilled LPG cylinders were also taken after the test-buy operation and were also presented.  The pieces of evidence are more than sufficient to engender a well-founded belief that the private respondents committed underfilling of LPG cylinder punishable by BP Blg. 33, as amended.

 

Furthermore, Section 1 of BP Blg. 33, as amended, provides for presumptions of underdelivery or underfilling of LPG cylinders, thus:

 

“xxx xxx xxx

 

“For the purpose of this subparagraph, the existence of the facts hereunder shall give rise to the following presumptions:

 

1) That cylinders containing less than the required quantity of liquefied petroleum gas which are not properly identified, tagged and set apart and remove and taken out from display area and made accessible to the public by marketers, dealers, sub-dealers, outlets are presumed to be on sale;

 

“xxx xxx xxx

 

3) When the seal, whether official or of the Oil Company, affixed to the dispensing pump, tank trunk or liquefied gas cylinder, is broken or absent or removed, it shall give rise to the presumption that the dispensing pump is underdelivering, or that the liquefied petroleum gas cylinder is underfilled, or that the tank truck contains adulterated finished petroleum products or underfilled;

 

The use of such pumps, cylinders, or containers referred to in sub-paragraph (1), (2) and (3) of this paragraph, to deliver products for sale or distribution shall constitute prima facie evidence of intent of the hauler, marketer, refiller, dealer, retailer outlet operator to defraud;” (Emphasis supplied).

 

Prescinding from the foregoing, the fact that the eight (8) refilled cylinders taken at OMNI were found to be without seals not only by Inspector Navio, but also by Agent De Jemil and his companion, NBI confidential asset Edgardo C. Kawada, during the test-buy operation as shown by their affidavits,41 would strongly support a finding of probable cause that private respondents committed the crime of underfilling of LPG cylinders.

 

Anent I.S. No. 2004-618, private respondents are being prosecuted for illegal trading by refilling LPG cylinders without written authorization from the concerned company, in violation of Section 2 (a) in relation to Sections 3 (c) and 4 of BP Blg.33, as amended.  In reversing the finding of probable cause of the Office of the Chief State Prosecutor, public respondent DOJ Undersecretary Pineda postulated that private respondents should not be held liable for violation of the aforestated law as there was no showing that the refilled LPG cylinders were owned by another company or even assuming that the ownership thereof was sufficiently established, such ownership had already been transferred to consumers by way of sale, citing the industry practice of cylinder swapping.

 

Again, we do not agree with public respondent’s ratiocination.

 

Quoted hereunder are the pertinent provisions of PD No. 1856, which amended BP Blg. 33, the law under which private respondents are being indicted, viz:

 

“SECTION 1.Section two of Batas Pambansa Blg. 33, as amended is further amended to read as follows:

 

‘Sec. 2.  Prohibited Acts.  – The following are prohibited and penalized:

 

(a) Illegal trading in petroleum and/or petroleum products;

 

xxx xxx xxx

 

“(Emphasis added)

 

“SECTION 2.  Section three of the same Act is hereby amended to read as follows:

 

‘Sec. 3. Definition of terms.  – For the purpose of this Act, the following terms shall be construed to mean:

 

Illegal trading in petroleum and/or petroleum products’-

 

xxx xxx xxx

 

(c) Refilling of liquefied petroleum gas cylinders without authority from the said Bureau, or refilling of another company’s or firm’s cylinders without such company’s or firm’s written authorization;” (Emphasis added)

 

Evidently, what is being punished under the aforementioned provisions of the law is the act of refilling another company’s or firm’s LPG cylinder without the written authorization of the said company or firm.  In the instant case, there are pieces of evidence that will prove the existence of probable cause to indict private respondents for violation of the said law.  The Affidavits42 of Agent De Jemil and NBI confidential asset Edgardo C. Kawada were presented to prove that a test-buy operation was conducted at OMNI and to further prove that OMNI is engaged in the refilling of LPG cylinders without the written authorization of the owners of the LPG branded cylinders like Shellane, Petron Gasul, Totalgaz, and Superkalan Gaz.  Agent De Jemil and NBI confidential asset Edgardo Kawada personally witnessed that OMNI employees refilled the eight (8) branded LPG cylinders that they brought during the test-buy operation.  In fact, a receipt43 or sales invoice was issued by OMNI after the eight (8) LPG cylinders were filled by them.  Moreover, photograph44 of the LPG branded cylinders that were filled was also taken.  Certifications45 of lack of written authorization by the aforementioned companies were also produced bolstering the fact that OMNI refilled the branded LPG cylinders without the written authorizations of the said companies.  What is more, the search and seizure operation conducted by the NBI FOD-IS by virtue of search warrants is issued by the RTC of Pasig City, Branch 167, yielded several filled and empty branded LPG cylinders owned by the said companies.  In sum, there is probable cause to indict private respondents for the crime of illegal trading punished by Section 2(a) in relation to Sections 3 (c) and 4 of BP Blg. 33, as amended.

 

DOJ Undersecretary Pineda’s postulation that there was no showing that the refilled LPG cylinders were owned by another company is belied by the evidence presented, particularly the LPG cylinders which do not show any markings showing OMNI’s ownership and is instead bear the marking Shellane, Petron Gasul, Totalgaz, and Superkalan Gaz, brands owned by companies other than OMNI.  As ruled by the Office of the Chief Prosecutor “the ownership of the LPG cylinders are shown by the stamp markings appearing on the LPG cylinders themselves, which provide that the said LPG cylinders are properties of their respective companies.46  This is consistent with the Republic Act No. 4109, otherwise known as the Product Standards Law, and the Philippine National Standard (PNS) 03-1, Series of 2000, which requires that LPG cylinders bear the permanent markings of their respective owners.

 

Simply relying on private respondents’ unsupported and bare allegation, DOJ Undersecretary Pineda further postulated that even assuming the ownership of the LPG cylinders have been established, such ownership had already been transferred to consumers by way of sale, citing the supposed industry practice of cylinder swapping.

 

We are not persuaded.  No less than the Department of Energy, the government agency tasked to regulate the LPG industry and which has the technical expertise to decide issues regarding the LPG industry, has held that the sale of LPG cylinders and its content merely transfers the possession and actual use of LPG cylinders and its content to consumers.  The Department of Energy has promulgated rules and regulations and letter-opinions confirming that LPG cylinders are considered properties of the companies whose stamp markings appear on the LPG cylinders.47  The Department of Energy further held that the acts of refilling or modifying the appearance of LPG cylinders are reserved for the owners of the LPG cylinders as shown in the markings thereon.  As a consequence, the possession of the LPG cylinders by another, such as the consumer, does “not relieve the brand owner thereof of its obligations to the public under the Rules and Regulations implementing R.A. No. 8479.”48  Such is the industry practice in order to pinpoint responsibility for substantial and underfilled LPG cylinders for the protection of the consuming public.49  This Court gives great weight and respect to the rulings of the Department of Energy because the LPG industry is an area within its competence and technical expertise.

 

The Motions to Intervene and to Admit Petitions-In-Intervention dated 24 August 2007 and 31 August 2007, filled by Nationwide Association of Consumers Inc. and Petron Corporation, respectively, are noted.

 

WHEREFORE, the instant petition is GRANTEDThe assailed resolutions dated October 9, 2006 and December 14, 2006 are hereby REVERSED and SET ASIDE The joint resolution dated November 7, 2005 of the Office of the Chief State Prosecutor finding probable cause against private respondents Arnel Ty, Marie Antonette Ty, Jason Ong, Wily Dy and Alvin Ty is hereby REINSTATED.

 

SO ORDERED.

 

 

 

RAMON M. BATO, JR.

Associate Justice

 

 

WE CONCUR:

 

 

 

ANDRES B. REYES, JR.

Associate Justice

 

 

 

ARCANGELITA ROMILLA LONTOK

Associate Justice

 

 

C E R T I F I C A T I O N

 

Pursuant to Article VII, Section13 of the Constitution, it is hereby certified that the conclusions in the above decision were reached in consultation before the case was assigned to the writer of the opinion of the court.

 

 

 

ANDRES B. REYES, JR.

Associate Justice

Chairman, Special Sixth Edition

 

 

*Acting Senior Member vice Justice Jose C. Mendoza, who is on leave, per Office Order No. 36-07-CMV dated September 13, 2007 Annex “A” of the Petition, pp. 043-046.

 

1Annex “ A” of the Petition, pp. 043-046.

 

2BP Blg. 33, otherwise known as “An Act Defining and Penalizing Certain Prohibited Acts Inimical To The Public Interest And National Security Involving Petroleum Products, Prescribing Penalties Therefor And For Other Purposes.”  Annex “B” of the Petition, pp. 049-050.

 

3Annex “ B” of the Petition, pp. 049-050.

 

4Complaint-affidavit, Rollo, pp. 076-080

 

5Rollo, p. 097.

 

6Supra, Note 3

 

7Rollo, p. 099.

 

8Ibid., pp. 337-338.

 

9Ibid, pp. 339-340.

 

10Ibid, p. 268.

 

11Ibid, pp. 076-080; pp.289-294.

 

12Rollo, pp. 289-294; p. 292.

 

13Ibid, pp. 076-080; p. 079.

 

14Ibid, pp. 345-348.

 

15Rollo, pp. 350-356.

 

16Ibid, pp. 357-362.

 

17Rollo, pp. 363-377.

 

18Ibid, pp. 378-389.

 

19Ibid, pp. 390-398.

 

20Ibid, pp. 399-401.

 

21Ibid, pp. 390-402-413.

 

22Petition for Certiorari, Rollo, pp. 002-042; p. 008.

 

23Ibid, pp. 043-048

 

24Rollo, pp. 045-047.

 

25Rollo, pp. 053-071.

 

26Ibid, pp. 460-468.

 

27Rollo, pp. 530-541.

 

28Preferred Home Specialists, Inc. vs. Court of Appeals, 478 SCRA 387, [December 16,2005].

 

29Supra, note 28.

 

30Ibid.

 

31Ibid.

 

32Benito vs. Comelec, 349 SCRA 705.

 

33People vs. Marave, 11 SCRA 618; Panaligan vs, Adolfo, 67 SCRA 176.

 

31Republic vs. Cocofed, 423 Phil. 735.

 

32Benito vs. Comelec, 349 SCRA 705.

 

33People vs. Marave, 11 SCRA 618; Panaligan vs, Adolfo, 67 SCRA 176.

 

31Republic vs. Cocofed, 423 Phil. 735.

 

35118 SCRA, 241.

 

36221 SCRA 349 [April 7, 1993].

 

37G.R. No. 1211234, 247 SCRA 652.

 

38Rollo, pp. 289-294.

 

39Ibid, pp. 314-315

 

40Ibid, p. 313.

 

41Rollo, pp. 289-294; pp. 324-326.

 

42Rollo, pp. 076-080; pp. 105-107; pp. 108-109; p. 265.

 

43Rollo, p. 097.

 

44Rollo, p. 098.

 

45Rollo, pp. 090-095.

 

46Rollo, pp. 357-361; p. 360-361.

 

47Rollo, pp. 443-446, Opinion of then Secretary Vincent S. Perez embodied in his letter dated December 9, 2004 addressed to Pilipinas Shell Petroleum Corporation.

 

47Rollo, Ibid, p.445.

 

49Rollo, p. 442, Department Circular No. 2000-05-007.

 

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