Ty vs. NBI Supervising Agent De Jemil

Arnel U. Ty, MARIE ANTONETTE TY, JASON ONG, WILLY DY, and ALVIN TY, vs. NBI SUPERVISING AGENT MARVIN E. DE JEMIL, PETRON GASUL DEALERS ASSOCIATION, and TOTALGAZ DEALERS ASSOCIATION

G.R. No. 182147 | December 15, 2010 | Velasco, Jr.,J.:

Facts:

Petitioners are stockholders of Omni Gas Corporation ("Omni"). They are being suspected of engaging in illegal trading of petroleum products and underfilling of branded LPG cylinders in violation of B.P. 33, as amended by P.D. 1865. NBI Agents Marvin De Jemil and Edgardo Kawada conducted surveillance operations on Omni. On 15 April 2004, the NBI Agents carried out a test-buy. Using eight branded LPG cylinders from Shell, Petron and Total, they went to Omni for refilling. Omni refilled the cylinders. The NBI agents paid more than P1500. LPG Inspector Noel Navio found that the LPG cylinders were without LPG valve seals and one of the cylinders was actually underfilled.

On 28 April 2004, Agent De Jemil obtained a search warrant from Pasig RTC branch 167. The NBI seized several items from Omni's premises. Subsequently, Agent De Jemil filed his Complaint-Affidavit before the DOJ. The Assistant City Prosecutor of Pasig found probable cause for violation of BP 33. This was later approved by Chief State Prosecutor Jovencito Zuno.

Petitioners appealed the decision to the Secretary of Justice, who later reversed the decision of the Office of the Chief State Prosecutor. NBI Agent De Jemil moved for reconsideration. Denied. He thus filed a petition for certiorari under Rule 65 with the Court of Appeals.

The Court of Appeals affirmed the decision of Secretary of Justice. It later reversed itself and reinstated the Resolution of the Chief State Prosecutor.

Issues:

(1) Whether the petition for certiorari with the Court of Appeals was proper even if Agent De Jemil did not appeal to the Office of the President?

(2) Whether probable cause exists against petitioners for violations of Sec. 2 (a) and (c) of BP 33, as amended?

(3) Whether petitioners can be held liable therefor?

Held:

(1) YES. The determination of probable cause by the public prosecutor, and, later on, by the Secretary of Justice, is subject to judicial review where it is established that grave abuse of discretion tainted the determination. The aggrieved party need not resort to the Office of the President before availing of judicial remedies because the Secretary of Justice is an alter ego of the President who may opt to exercise or not to exercise his or her power of review over the former’s determination in criminal investigation cases. Also, under the doctrine of qualified political agency, the determination of probable cause by the Secretary of Justice is presumably that of the Chief Executive unless disapproved or reprobated by the latter.

(2) YES. The test-buy conducted on 15 April 2004 tends to show that Omni illegally refilled the eight branded cylinders. Such act is a clear violation of Sec. 2 (a), in relation to Secs. 3 (c) and 4 of BP 33, as amended.

Omni has no authority to refill LPG cylinders as shown by the certifications provided by Shell, Petron and Total. The seized items also show that Omni has no authority to refill the cylinders. It shows that Omni really refilled branded cylinders without authorization. Omni’s unauthorized refilling of branded LPG cylinders, contrary to Sec. 2 (a) in relation to Sec. 3 (c) of BP 33, as amended.

Granting arguendo that the customers already owned the LPG cylinders, such fact does give Omni authority to refill the cylinders without authorization from the brand owners. Only the duly authorized dealers and refillers of the brand owners may refill the branded LPG cylinders. The offense of refilling a branded LPG cylinder without the written consent of the brand owner constitutes the offense regardless of the buyer or possessor of the branded LPG cylinder.

Petitioner's contention that they are not liable because the underfilling that took place during the test-buy is an isolated event is UNTENABLE. A single underfilling under BP 33 is already a criminal act.

(3) Only Arnel Ty, as President of Omni, is liable. The other petitioners, who are members of Omni's Board of Directors, are not liable. Sec. 4 of BP 33 enumerates the persons who may be held liable, viz: (1) the president, (2) general manager, (3) managing partner, (4) such other officer charged with the management of the business affairs of the corporation or juridical entity, or (5) the employee responsible for such violation. The Board of Directors is primarily a policy-making body of the Corporation who doesn't concern itself with day-to-day operations.