THIRD DIVISION

[ G.R. No. 189272, January 21, 2015 ]

PEOPLE OF THE PHILIPPINES, APPELLEE, VS. CHI CHAN LIU A. K. A. CHAN QUE AND HUI LAO CHUNG A.K.A. LEOFE
SENGLAO, APPELLANTS.

DECISION

PERALTA, J.:

For this Court's consideration is the Decision[1] dated January 9, 2009 and Resolution[2] dated April 24, 2009 of the
Court of Appeals (CA) in CA-G. R. CR HC No. 00657 affirming the Decision[3] dated June 21, 2004 of the Regional
Trial Court (RTC), Branch 44, Mamburao, Occidental Mindoro, in Criminal Case No. Z-1058, finding appellants guilty
beyond reasonable doubt of violating Section 14, Article III, in relation to Section 21 (a), Article IV of Republic Act
(RA) No. 6425, otherwise known as the Dangerous Drugs Act of 1972, as amended by RA No. 7659.

The facts, as culled from the records, are the following:

At 10:00 a.m. of December 3, 1998, SPO2 Lazaro Paglicawan and SPO3 Isagani Yuzon, the officers-on-duty at the
Philippine National Police (PNP) Station, Looc, Occidental Mindoro, received a radio message from the Barangay
Captain of Ambil Island, Looc, Maximo Torreliza, that a suspicious looking boat was seen somewhere within the
vicinity of said island.[4] Immediately thereafter, the police officers headed towards the specified location wherein
they spotted two (2) boats anchored side by side, one of which resembled a fishing boat and the other, a
speedboat. They noticed one (1) person on board the fishing boat and two (2) on board the speed boat who were
transferring cargo from the former to the latter. As they moved closer to the area, the fishing boat hurriedly sped
away. Due to the strong waves, the police officers were prevented from chasing the same and instead, went
towards the speed boat, which seemed to be experiencing engine trouble. On board the speed boat, the officers
found the appellants Chi Chan Liu a.k.a. Chan Que and Hui Lao Chung a.k.a. Leofe Senglao with several transparent
plastic bags containing a white, crystalline substance they instantly suspected to be the regulated drug,
methamphetamine hydrochloride, otherwise known as "shabu." They requested the appellants to show their
identification papers but appellants failed to do so.[5] Thus, the police officers directed appellants to transfer to
their service boat and thereafter towed appellants' speed boat to the shore behind the Municipal Hall of Looc,
Occidental Mindoro. On their way, the police officers testified that appellant Chi Chan Liu repeatedly offered them
"big, big amount of money" which they ignored.[6]

Upon reaching the shore, the police officers led the appellants, together with the bags containing the crystalline
substance, to the police station. In the presence of the appellants and Municipal Mayor Felesteo Telebrico, they
conducted an inventory of the plastic bags which were forty-five (45) in number, weighing about a kilo each.[7]
Again, SPO3 Yuson requested proper documentation from the appellants as to their identities as well as to the
purpose of their entry in the Philippine territory.[8] However, the appellants did not answer any of SPO3 Yuson's
questions.[9] Immediately thereafter, SPO3 Yuson reported the incident to their superiors, PNP Provincial
Command in San Jose, Occidental Mindoro and PNP Regional Command IV in Camp Vicente Lim, Calamba, Laguna.
The PNP Regional Director General Reynaldo Acop advised them to await his arrival the following day. [10]

On December 4, 1998, General Acop arrived together with Colonel Damian on a helicopter. They talked with
Mayor Telebrico and the arresting officers and then brought the appellants with the suspected illegal drugs to
Camp Vicente Lim, Calamba, Laguna, for further investigation.[11] There, the appellants and the suspected
prohibited drugs were turned over to Police Inspector Julieto B. Culili, of the Intelligence and Investigation Division,
PNP, Regional Office IV, who attempted to communicate with the appellants using "broken" English. According to
Inspector Culili, appellant Chi Chan Liu only kept saying the phrase "call China, big money," giving him a certain
cellular phone number.[12] He allowed appellants to call said number in which they spoke with someone using
their native language, which he could not understand.[13] Because of this difficulty, Inspector Culili sought the
assistance of Inspector Carlito Dimalanta in finding an interpreter who knew either Fookien or Cantonese.

On December 5, 1998, the interpreter arrived. With the assistance of said interpreter, Inspector Culili informed and
explained to the appellants their rights under Philippine laws inclusive of the right to remain silent, the right to
counsel, as well as the right to be informed of the charges against them, and the consequences thereof. [14]
Inspector Culili also requested the interpreter to ask the appellants whether they wanted to avail of said
constitutional rights. However, appellants only kept repeating the phrase "big money, call China." Apart from their
names, aliases and personal circumstances, the appellants did not divulge any other information. [15] Inspector
Culili, with the assistance of the arresting officers, then prepared the Booking Sheet and Arrest Report of the
appellants, requested for their physical and medical examination, as well as the laboratory examination of the
white, crystalline substance in the bags seized from them.[16] He also assisted the arresting officers in the
preparation of their affidavits.[17] According to Inspector Culili, moreover, he was able to confirm that the
appellants are Chinese nationals from Guandong, China, based on an earlier intelligence report that foreign
nationals on board extraordinary types of vessels were seen along the sealine of Lubang Island in Cavite, and
Quezon Province.[18]

Thereafter, Police Inspector Mary Jean Geronimo, PNP Chief Forensic Chemist/Physical Examiner assigned at the
PNP Regional Crime Laboratory Service Office, Camp Vicente Lim, Laguna conducted an examination of the white,
crystalline substance in the forty-five (45) bags seized from the appellants.[19] After performing three (3) tests
thereon, she positively confirmed in her Chemistry Report that the same is, indeed, methamphetamine
hydrochloride, otherwise known as "shabu."[20]

On December 8, 1998, the Office of the Provincial Prosecutor of Occidental Mindoro filed an Information [21] with
the RTC of Mamburao, Occidental Mindoro, against appellants for violation of Section 14, Article III, in relation to
Section 21 (a), Article IV of RA No. 6425 as amended by RA No. 7659, committed as follows:

That on or about 1:00 o'clock in the afternoon of December 3, 1998 at the coast of Brgy. Tambo, Ambil Island in
the Municipality of Looc Province of Occidental Mindoro, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused being then the persons not authorized by law conspiring and mutually helping
one another, did then and there wilfully, unlawfully, feloniously import and bring through the use of sea vessel into
the above-mentioned place, Methamphetamine Hydrochloride known as Shabu contained in forty-five (45) heat-
sealed transparent plastic bags having a total weight of 46,600 grams (46.60 kilograms) placed inside another
forty-five (45) separate self-seling (sic) transparent plastic bags which is prohibited by law, to the damage and
prejudice of public interest.

Appellants pleaded not guilty to the charges against them. Thereafter, trial on the merits ensued, where the facts
earlier stated were testified to by the witnesses for the prosecution, specifically: SPO2 Paglicawan, SPO3 Yuson,
Police Inspector Culili, and Police Inspector Geronimo.

The testimonies of the witnesses for the defense, namely: Jesus Astorga and Fernando Oliva, both residents of
Ambil Island, Leopoldo S. J. Lozada, a former Supervising Crime Photographer of the PNP, and Godofredo de la
Fuente Robles, a Member of the Looc Municipal Council, essentially maintain that the subject crystalline substance
was merely recovered by the apprehending police officers from the house of Barangay Captain Maximo Torreliza
and not actually from the speed boat the appellants were on.[22]

The trial court found appellants guilty beyond reasonable doubt in its Decision dated June 21, 2004, the dispositive
portion of which reads:
WHEREFORE, finding both accused CHI CHAN LIU @ "CHAN QUE" AND HIU LAO CHUNG @ "LEOFE SENG LAO"
GUILTY BEYOND REASONABLE DOUBT OF VIOLATING Section 14, Article III, in relation to Section 21 (a), Article IV as
amended by R. A. 7659 known as the Dangerous Drugs Act of 1972, as amended, the Court hereby sentences each
of them to suffer the penalty of IMPRISONMENT OF RECLUSION PERPETUA and to each pay the FINE of One Million
(Php1,000,000.00) Pesos Philippine Currency, with cost de officio.

SO ORDERED.[23]

On appeal, the CA affirmed in toto the Decision of the RTC in its Decision dated January 9, 2009. On April 24, 2009,
it further denied the appellants' Motion for Reconsideration in its Resolution finding no cogent reason to make any
revision, amendment, or reversal of its assailed Decision. Hence, the present appeal raising the following issues:

I.

WHETHER OR NOT ALL THE ELEMENTS OF THE CRIME OF IMPORTATION OF REGULATED DRUGS PUNISHABLE
UNDER SECTION 14, ARTCILE III, IN RELATION TO SECTION 21 (A), ARTICLE IV OF REPUBLIC ACT 6425, AS AMENDED
BY REPUBLIC ACT 7659, ARE PRESENT IN THIS CASE.

II.

WHETHER OR NOT THE CORPUS DELICTI OF THE CRIME CHARGED HAS BEEN ESTABLISHED BEYOND REASONABLE
DOUBT.

III.

WHETHER OR NOT THE PRESUMPTION OF REGULARITY IN THE PERFORMANCE OF OFFICIAL DUTIES CAN PREVAIL
OVER THE GUARANTEES ENSHRINED AND KEPT SACRED BY THE PHILIPPINE CONSTITUTION IN THIS CASE.

IV.

WHETHER OR NOT THE ARRAIGNMENT OF ACCUSED-APPELLANTS IS VALID.

V.

WHETHER OR NOT THE GUILT OF ACCUSED-APPELLANTS WAS PROVEN BEYOND REASONABLE DOUBT.[24]

Appellants maintain that there is no importation of regulated drugs in the instant case since the elements of the
crime of importation, namely: (1) the importation or bringing into the Philippines of any regulated or prohibited
drug; and (2) the importation or bringing into the Philippines of said drugs was without authority of law, were not
established herein. Appellants assert that unless there is proof that a ship on which illegal drugs came from a
foreign country, the offense does not fall within the ambit of illegal importation of said drugs. Thus, considering
the prosecution's failure to prove the place of origin of the boat on which appellants were apprehended,
appellants cannot be convicted of the crime charged herein.

Appellants also claim that the prosecution failed to substantiate beyond reasonable doubt the corpus delicti of the
crime charged for the chain of custody of the illegal drugs subject of this case was not sufficiently established. In
addition, they emphasize the irregularities attendant in their arrest and seizure of the illegal drugs in violation of
their constitutionally protected rights. Appellants further call attention to the invalidity of their arraignment for
they were not represented by a counsel of their choice.

This Court finds merit on appellants' first argument.

The information filed by the prosecutor against appellants charged appellants with violation of Section 14, Article
III, in relation to Section 21 (a), Article IV of RA No. 6425, otherwise known as the Dangerous Drugs Act of 1972, as
amended by RA No. 7659, which provide:

ARTICLE III
Regulated Drugs

Section 14. Importation of Regulated Drugs. The penalty of imprisonment ranging from six years and one day to
twelve years and a fine ranging from six thousand to twelve thousand pesos shall be imposed upon any person
who, unless authorized by law, shall import or bring any regulated drug into the Philippines.

xxxx

ARTICLE IV
Provisions of Common Application to Offenses Penalized
under Articles II and III

xxxx

Section 21. Attempt and Conspiracy. The same penalty prescribed by this Act for the commission of the offense
shall be imposed in case of any attempt or conspiracy to commit the same in the following cases:

a) importation of dangerous drugs;

On the basis of the foregoing provisions, the crime of importation of regulated drugs is committed by importing or
bringing any regulated drug into the Philippines without being authorized by law. According to appellants, if it is
not proven that the regulated drugs are brought into the Philippines from a foreign origin, there is no importation.
In support of this, they cite our ruling in United States v. Jose,[25]wherein We said that:

There can be no question that, unless a ship on which opium is alleged to have been illegally imported comes
from a foreign country, there is no importation. If the ship came to Olongapo from Zamboanga, for example, the
charge that opium was illegally imported on her into the port of Olongapo, i.e., into the Philippine Islands, could
not be sustained no matter how much opium she had on board or how much was discharged. In order to
establish the crime of importation as defined by the Opium Law, it must be shown that the vessel from which
the opium is landed or on which it arrived in Philippine waters came from a foreign port. Section 4 of Act No.
2381 provides that:

Any person who shall unlawfully import or bring any prohibited drug into the Philippine Islands, or assist in so
doing, shall be punished . . . .
It is clear that a breach of this provision involves the bringing of opium into the Philippine Islands from a foreign
country. Indeed, it is a prime essential of the crime defined by that section. Without it, no crime under that
section can be established.[26]

Moreover, the Black's Law Dictionary defines importation as "the act of bringing goods and merchandise into a
country from a foreign country."[27] As used in our tariff and customs laws, imported articles, those which are
brought into the Philippines from any foreign country, are subject to duty upon each importation. [28] Similarly, in a
statute controlling the entry of toxic substances and hazardous and nuclear wastes, importation was construed as
the entry of products or substances into the Philippines through the seaports or airports of entry. [29] Importation
then, necessarily connotes the introduction of something into a certain territory coming from an external source.
Logically, if the article merely came from the same territory, there cannot be any importation of the same.

The CA, in finding that there was importation in the present case, stated:

The prosecution was able to prove beyond reasonable doubt that appellants were, indeed, guilty of importing
regulated drugs into the country in violation of aforesaid law. Appellants were caught by police authorities
in flagrante delicto on board a speedboat carrying forty-five (45) plastic bags of shabu. The drugs seized were
properly presented and identified in court. Appellants' admission that they were Chinese nationals and their
penchant for making reference during custodial investigation to China where they could obtain money to bribe
the police officers lead this Court to no other reasonable conclusion but that China is the country of origin of the
confiscated drugs. All elements of the crime of illegal importation of regulated drugs being present in this case,
conviction thereof is in order.[30]

We disagree. The mere fact that the appellants were Chinese nationals as well as their penchant for making
reference to China where they could obtain money to bribe the apprehending officers does not necessarily mean
that the confiscated drugs necessarily came from China. The records only bear the fact that the speed boat on
which the appellants were apprehended was docked on the coast of Ambil Island in the Municipality of Looc,
Occidental Mindoro. But it could have easily come from some other locality within the country, and not necessarily
from China or any foreign port, as held by the CA. This Court notes that for a vessel which resembles a speed boat,
it is rather difficult to suppose how appellants made their way to the shores of Occidental Mindoro from China.
Moreover, an earlier intelligence report that foreign nationals on board extraordinary types of vessels were seen
along the sealine of Lubang Island in Cavite, and Quezon Province, does not sufficiently prove the allegation that
appellants herein were, in fact, importing illegal drugs in the country from an external source. This,
notwithstanding, had the prosecution presented more concrete evidence to convince this Court that the
prohibited drugs, indeed, came from a source outside of the Philippines, the importation contention could have
been sustained.

Appellants' exoneration from illegal importation of regulated drugs under Section 14, Article III of RA No. 6425
does not, however, free them from all criminal liability for their possession of the same is clearly evident.

At the outset, appellants may argue that as We have ruled in United States v. Jose,[31] possession is not
necessarily included in the charge of importation and thus, they cannot be held liable thereof, to wit:

Counsel for neither of the parties to this action have discussed the question whether, in case the charge of illegal
importation fails, the accused may still be convicted, under the information, of the crime of illegal possession of
opium. We, therefore, have not had the aid of discussion of this proposition; but, believing that it is a question
which might fairly be raised in the event of an acquittal on the charge of illegal importation, we have taken it up
and decided it. Section 29 of the Code of Criminal Procedure provides that:

The court may find the defendant guilty of any offense, or of any frustrated or attempted offense, the commission
of which is necessarily included in the charge in the complaint or information.
As will be seen from this provision, to convict of an offense included in the charge in the information it is not
sufficient that the crime may be included, but it must necessarily be included. While, the case before us, the
possession of the opium by the appellants was proved beyond question and they might have been convicted of
that offense if they have been charged therewith, nevertheless, such possession was not an essential element of
the crime of illegal importation and was not necessarily included therein. The importation was complete, to say
the least, when the ship carrying it anchored in Subic Bay. It was not necessary that the opium be discharged or
that it be taken from the ship. It was sufficient that the opium was brought into the waters of the Philippine Islands
on a boat destined for a Philippine port and which subsequently anchored in a port of the Philippine Islands with
intent to discharge its cargo. That being the case it is clear that possession, either actual or constructive, is not a
necessary element of the crime of illegal importation nor is it necessarily included therein. Therefore, in
acquitting the appellants of the charge of illegal importation, we cannot legally convict them of the crime of
illegal possession.[32]

However, in our more recent ruling in People v. Elkanish,[33] this Court held that possession is inherent in
importation. In that case, the accused, who was suspected of being the owner of sixty-five (65) large boxes of
blasting caps found aboard a ship of American registry docked inside Philippine territory, was charged with illegal
importation of the articles under Section 2702 of the Revised Administrative Code and illegal possession of the
same articles under Section 1 of Act No. 3023, in two (2) separate informations. Ruling that double jeopardy exists
in view of the fact that possession is necessarily included in importation, this Court affirmed the dismissal of the
information on illegal importation, in the following wise:

Section 9 of Rule 113 of the Rules of Court reads:

When a defendant shall have been convicted or acquitted, or the case against him dismissed or otherwise
terminated without the express consent of the defendant, by a court of competent jurisdiction, upon a valid
complaint or information or other formal charge sufficient in form and substance to sustain a conviction, and after
the defendant had pleaded to the charge, the conviction or acquittal of the defendant or the dismissal of the case
shall be a bar to another prosecution for the offense charged, or for any attempt to commit the same or
frustration thereof, or for any offense which necessarily includes or is necessarily included in the offense charged
in the former complaint or information.
With reference to the importation and possession of blasting caps, it seems plain beyond argument that the
latter is inherent in the former so as to make them juridically identical. There can hardly be importation without
possession. When one brings something or causes something to be brought into the country, he necessarily has
the possession of it. The possession ensuing from the importation may not be actual, but legal, or constructive,
but whatever its character, the importer, in our opinion, is a possessor in the juristic sense and he is liable to
criminal prosecution. If he parts with the ownership of interest in the article before it reaches Philippine territory,
he is neither an importer nor a possessor within the legal meaning of the term, and he is not subject to
prosecution for either offense under the Philippine Laws. The owner of the merchandise at the time it enters
Philippine water is its importer and possessor. He who puts merchandise on board a vessel and alienates the title
thereto while it is in transit does not incur criminal liability. Possession on ownership of a prohibited article on a
foreign vessel on the high seas outside the jurisdiction of the Philippines does not constitute a crime triable by the
courts of this country. (U.S. vs. Look Chaw, 18 Phil., 573).[34]

As We have explained in our more recent ruling above, there is double jeopardy therein since the offense charged
in the information on possession is necessarily included in the information on importation in view of the fact that
the former is inherent in the latter. Thus, this Court sustained the dismissal of one of the two informations which
charged the accused with importation to avoid the implications of double jeopardy for possession is necessarily
included in the charge of importation.

Applying the aforequoted ruling, this Court finds that while appellants cannot be held liable for the offense of
illegal importation charged in the information, their criminal liability for illegal possession, if proven beyond
reasonable doubt, may nevertheless be sustained. As previously mentioned, the crime of importation of regulated
drugs is committed by importing or bringing any regulated drug into the Philippines without being authorized by
law. Indeed, when one brings something or causes something to be brought into the country, he necessarily has
possession of the same. Necessarily, therefore, importation can never be proven without first establishing
possession, affirming the fact that possession is a condition sine qua non for it would rather be unjust to convict
one of illegal importation of regulated drugs when he is not proven to be in possession thereof.
At this point, this Court notes that charging appellants with illegal possession when the information filed against
them charges the crime of importation does not violate their constitutional right to be informed of the nature and
cause of the accusation brought against them. The rule is that when there is a variance between the offense
charged in the complaint or information, and that proved or established by the evidence, and the offense as
charged necessarily includes the offense proved, the accused shall be convicted of the offense proved included in
that which is charged.[35] An offense charged necessarily includes that which is proved, when some of the essential
elements or ingredients of the former, as this is alleged in the complaint or information, constitute the latter. [36]

Indeed, We have had several occasions in the past wherein an accused, charged with the illegal sale of dangerous
drugs, was convicted of illegal possession thereof. In those cases, this Court upheld the prevailing doctrine that the
illegal sale of dangerous drugs absorbs the illegal possession thereof except if the seller was also apprehended in
the illegal possession of another quantity of dangerous drugs not covered by or not included in the illegal sale, and
the other quantity of dangerous drugs was probably intended for some future dealings or use by the accused. [37]
Illegal possession of dangerous drugs is therefore an element of and is necessarily included in illegal sale. Hence,
convicting the accused with the former does not violate his right to be informed of the accusation against him for it
is an element of the latter.

In a similar manner, considering that illegal possession is likewise an element of and is necessarily included in
illegal importation of dangerous drugs, convicting appellants of the former, if duly established beyond reasonable
doubt, does not amount to a violation of their right to be informed of the nature and cause of accusation against
them. Indeed, where an accused is charged with a specific crime, he is duly informed not only of such specific
crime but also of lesser crimes or offenses included therein.[38]

Thus, in view of the fact that illegal possession is an element of and is necessarily included in the illegal importation
of regulated drugs, this Court shall determine appellants' culpability under Section 16, [39] Article III of RA No. 6425.

The elements of illegal possession of regulated drugs are as follows: (a) the accused is in possession of an item or
object which is identified to be a regulated drug; (b) such possession is not authorized by law; and (c) the accused
freely and consciously possessed the regulated drug.[40]

The evidence on record clearly established that appellants were in possession of the bags containing the regulated
drugs without the requisite authority. As mentioned previously, on the date of appellants' arrest, the
apprehending officers were conducting a surveillance of the coast of Ambil Island in the Municipality of Looc,
Occidental Mindoro, upon being informed by the Municipality's Barangay Captain that a suspicious-looking boat
was within the vicinity. Not long after, they spotted two (2) boats anchored side by side, the persons on which
were transferring cargo from one to the other. Interestingly, as they moved closer to the area, one of the boats
hurriedly sped away. Upon reaching the other boat, the police officers found the appellants with several
transparent plastic bags containing what appeared to be shabu which were plainly exposed to the view of the
officers. Clearly, appellants were found to be in possession of the subject regulated drugs.

Moreover, this Court is not legally prepared to accept the version of the appellants that they had nothing to do
with the incident and that they were being framed up as the drugs seized from them were merely planted by the
apprehending officers. At the outset, this Court observes that appellants did not provide any explanation as to
how the apprehending officers were actually able to plant forty-five (45) bags of regulated drugs weighing about
one (1) kilo each in the speed boat of appellants in the middle of the ocean without their knowledge. Also, as the
trial court noted, they did not even give any explanation as to the purpose of their presence in the coast of Ambil,
Looc, Occidental Mindoro. More importantly, aside from saying that the confiscated bags of regulated drugs were
merely implanted in their speed boat, they did not provide the court with sufficient evidence to substantiate their
claim. In the words of the lower court:

Moreover, the story of defense witnesses Jesus Astorga, Fernando Oliva, and Godofredo Robles that the subject
shabu were taken only by the police authority from the house of Barangay Captain Maximo Torreliza taxes only
one's credulity. Their testimonies appear to be merely a product of an [afterthought]. They have not executed any
prior affidavit on the matters concerning their testimonies unlike the prosecution witnesses SPO3 Yuson and SPO2
Paglicawan who executed their joint affidavit almost immediately after their arrest. It is so apparent from the
testimonies of these three (3) above-named defense witnesses that they [did not] know anything about the case.
What is even worse is that Atty. Evasco, the former counsel of the accused, procured the testimonies of Jesus
Astorga, Fernando Oliva, and Godofredo Reyes. Clear enough their intent or motivation is not for the truth to
come out but for the monetary consideration in exchange of their testimony. [41]

This Court has consistently noted that denial or frame up is a standard defense ploy in most prosecutions for
violations of the Dangerous Drugs Law. This defense has been invariably viewed with disfavor for it can easily be
concocted. In order to prosper, the defense of denial and frame-up must be proved with strong and convincing
evidence.[42] Without proof of any intent on the part of the police officers to falsely impute to appellants the
commission of a crime, the presumption of regularity in the performance of official duty and the principle that the
findings of the trial court on the credibility of witnesses are entitled to great respect, deserve to prevail over the
bare denials and self-serving claims of frame up by appellants.[43]

Going now to appellants' arguments that their criminal liability is negated by certain irregularities in the
proceedings of this case. First and foremost, appellants allege a violation of their constitutional rights against
unreasonable searches and seizures. Due to the absence of probable cause, their warrantless arrest and
consequent search and seizure on their persons and possession is unjustified and hence, the confiscated bags of
regulated drugs therefrom are inadmissible against them.

Section 2, Article III of the Philippine Constitution provides:

Section 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable
searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or
warrant of arrest shall issue except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly
describing the place to be searched and the persons or things to be seized.

A settled exception, however, to the above guaranteed right is an arrest made during the commission of a crime,
which does not require a previously issued warrant, under Section 5(a), Rule 113 of the Revised Rules on Criminal
Procedure, to wit:

Sec. 5. Arrest without warrant; when lawful. A peace officer of a private person may, without a warrant, arrest a
person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to
commit an offense;

This Court has ruled that for an arrest to fall under the above exception, two (2) elements must be present: (1) the
person to be arrested must execute an overt act indicating that he has just committed, is actually committing, or is
attempting to commit a crime; and (2) such overt act is done in the presence or within the view of the arresting
officer.[44]

In this case, appellants were actually committing a crime and were caught by the apprehending officers in
flagrante delicto. As previously stated, the records reveal that on the date of their arrest, the apprehending
officers, while acting upon a report from the Barangay Captain, spotted appellants transferring cargo from one
boat to another. However, one of the boats hastily sped away when they drew closer to the appellants, naturally
arousing the suspicion of the officers. Soon after, the police officers found them with the illegal drugs plainly
exposed to the view of the officers. When they requested appellants to show proper documentation as to their
identity as well as their purpose for being there, appellants refused to show them anything much less respond to
any of their questions. In fact, when the officers were transporting appellants and the illegal drugs to the shore,
the appellant Chi Chan Liu even repeatedly offered the arresting officers "big, big amount of money." Hence, the
circumstances prior to and surrounding the arrest of appellants clearly show that they were arrested when they
were actually committing a crime within the view of the arresting officers, who had reasonable ground to believe
that a crime was being committed.

In addition, this Court does not find the consequent warrantless search and seizure conducted on appellants
unreasonable in view of the fact that the bags containing the regulated drugs were in plain view of the arresting
officers, one of the judicially recognized exceptions to the requirement of obtaining a search warrant.

Under the plain view doctrine, objects falling in the "plain view" of an officer, who has a right to be in the position
to have that view, are subject to seizure and may be presented as evidence. [45] It applies when the following
requisites concur: (a) the law enforcement officer in search of the evidence has a prior justification for an intrusion
or is in a position from which he can view a particular area; (b) the discovery of the evidence in plain view is
inadvertent; and (c) it is immediately apparent to the officer that the item he observes may be evidence of a crime,
contraband, or otherwise subject to seizure. The law enforcement officer must lawfully make an initial intrusion or
properly be in a position from which he can particularly view the area. In the course of such lawful intrusion, he
came inadvertently across a piece of evidence incriminating the accused. The object must be open to eye and
hand, and its discovery inadvertent.[46]

In the case at hand, the apprehending officers were performing their duty of ascertaining whether a criminal
activity was indeed happening at the time and place reported by the Barangay Captain. In broad daylight,
appellants were seen in the act of transferring bags of illegal drugs from one boat to another and thereafter caught
in possession of the same, which became inadvertently and immediately apparent from the point of view of the
arresting officers. It is undeniably clear, therefore, that the seizure of illegal drugs conducted by the officers falls
within the purview of the "plain view" doctrine. Consequently, the confiscated drugs are admissible as evidence
against appellants.

As to appellants' assignment of failure on the part of the prosecution to substantiate beyond reasonable doubt
the corpus delicti of the crime charged for the chain of custody of the illegal drugs was not sufficiently established,
the same cannot be sustained as a review of the records of the case provides otherwise. From the time of
appellants' arrest, the seized bags of regulated drugs were properly marked and photographed. Proper inventory
was also conducted in the presence of the appellants and Mayor Telebrico, who signed a receipt evidencing that
the confiscated drugs were turned over to the PNP Regional Headquarters.[47] There, the evidence was sent to the
Regional Crime Laboratory Service Office for an examination which yielded positive results. The laboratory
report, photographs, and receipts were all made part of the records of this case. In fact, the bags containing the
crystalline substance were presented before the trial court during the hearing held on October 12, 1999 which was
identified by SPO3 Yuson, the officer who confiscated the same. Evidently, an unbroken chain of custody of the
confiscated drugs was established by the prosecution.

Appellants also assail the legality of their detention for being formally charged in an Information on December 8,
1998 or five (5) days after their arrest on December 3, 1998, beyond the thirty-six (36)-hour period in Article
125[48] of the Revised Penal Code. But while the law subjects such public officers who detain persons beyond the
legal period to criminal liability, it must be remembered that the proceeding taken against the detained persons
for the act they committed remains unaffected, for the two acts are distinct and separate. [49] This Court is
nevertheless mindful of the difficult circumstances faced by the police officers in this case, such as the language
barrier, the unresponsiveness of the appellants, the fact that one of the days fell on a Sunday, as well as the
disparity in the distances between the different offices. But even assuming that the police officers intentionally
delayed the filing of the Information, appellants should have taken steps to report or file charges against the
officers. Unfortunately, they cannot now rely on administrative shortcomings of police officers to get a judgment
of acquittal for these do not diminish the fact that illegal drugs were found in appellants' possession.[50]
Anent appellants' claim that their constitutional rights were further violated for during custodial investigation, they
did not have counsel of their choice nor were they provided with one, this deserves scant consideration since the
same is relevant and material only when an extrajudicial admission or confession extracted from an accused
becomes the basis of his conviction.[51] In this case, neither one of the appellants executed an admission or
confession. In fact, as the records clearly show, appellants barely even spoke and merely kept repeating the phrase
"call China, big money." The trial court convicted them not on the basis of anything they said during custodial
investigation but on other convincing evidence such as the testimonies of the prosecution witnesses. Verily, there
was no violation of appellants' constitutional right to counsel during custodial investigation.

In this relation, appellants further criticize the legality of the proceedings in saying that during their arraignment,
they were not represented by a counsel of their choice but were merely represented by a court-appointed
government lawyer. Appellants assert that the trial court likewise appointed a special interpreter, who merely
understood a little Chinese language. As such, considering the absence of any assurance that the interpreter was
able to explain to appellants the charges against them in the language they understood, appellants therefore did
not validly enter their plea.

The facts borne by the records of the case, however, militate against the contention of the appellants. This Court
does not find a violation of appellants' right to counsel for even in their own narration of facts, appellants stated
that when they appeared without counsel when the case was called for arraignment on January 19, 1999, the trial
court gave appellants time to secure the services of counsel of their choice. It was only when appellants again
appeared without counsel on February 23, 1999 that the court appointed a counsel from the Public Attorney's
Office.[52] It is clear, therefore, that appellants had ample opportunity to secure the services of a counsel of their
own choice. They cannot now assign error in the proceedings conducted by the trial court for the fact remains that
they were appointed with counsel in full compliance with the law.

In much the same way, appellants had every opportunity to secure the services of a Chinese interpreter with such
competence at par with their standards. As pointed out by the CA, the trial court gave appellants the authorization
to seek, through their counsel, the Chinese Embassy's assistance for purposes of procuring a Chinese
interpreter.[53] Appellants were even given time, through several postponements, to properly secure the services
of one. If appellants were unsatisfied with the competence of the court-appointed interpreter, it should have
taken the opportunities given by the trial court. In this relation, the trial court's observations are worth
mentioning, to wit:

Another factor that militates against the accused is their failure to testify on their own behalf, the defense is trying
to justify for want of Chinese interpreter. The instant case has been filed in Court since December 8, 1998 or six
years more or less until now. It is highly unbelievable that for such period of time that this case has been pending
in court, accused could not still secure the services of a Chinese interpreter when as borne out by the records,
they were able to secure the services of several lawyers one after the other. The accused on two (2) occasions
have even submitted written requests in English (Exhibit "N" and Exhibit "O") which were granted by the Court
allowing them to call their relatives but still they failed to secure the services of an interpreter. To the mind of the
Court, accused can also understand English as proven by their letters. x x x [54]

Indeed, this Court accords the highest degree of respect to the findings of the lower court as to appellants' guilt of
the offense charged against them, especially when such findings are adequately supported by documentary as well
as testimonial evidence. It is a settled policy of this Court, founded on reason and experience, to sustain the
findings of fact of the trial court in criminal cases, on the rational assumption that it is in a better position to assess
the evidence before it, having had the opportunity to make an honest determination of the witnesses' deportment
during the trial.[55]

Moreover, in view of the well-entrenched rule that the findings of facts of the trial court, as affirmed by the
appellate court, are conclusive on this Court, absent any evidence that both courts ignored, misconstrued, or
misinterpreted cogent facts and circumstances of substance which, if considered, would warrant a modification or
reversal of the outcome of the case, this Court finds no cogent reason to deviate from the above findings. [56] It is
clear, therefore, that based on the findings of the courts below, appellants were, in fact, in possession of regulated
drugs without the requisite authority.

As to the penalty imposed on appellants, Sections 16 and 17 of RA No. 7659, amending RA No. 6425, otherwise
known as the Dangerous Drugs Act of 1972, provide:

Sec. 16. Section 16 of Article III of Republic Act No. 6425, as amended, known as the Dangerous Drugs Act of 1972,
is amended to read as follows:

Section 16. Possession or Use of Regulated Drugs. - The penalty of reclusion perpetua to death and a fine ranging
from five hundred thousand pesos to ten million pesos shall be imposed upon any person who shall possess or use
any regulated drug without the corresponding license or prescription, subject to the provisions of Section 20
hereof.

xxxx
Section 17. Section 20, Article IV of Republic Act No. 6425, as amended, known as the Dangerous Drugs Act of
1972, is hereby amended to read as follows:

Sec. 20. Application of Penalties, Confiscation and Forfeiture of the Proceeds or Instruments of the Crime. - The
penalties for offenses under Section 3, 4, 7, 8 and 9 of Article II and Sections 14, 14-A, 15 and 16 of Article III of this
Act shall be applied if the dangerous drugs involved is in any of the following quantities:

xxxx

3. 200 grams or more of shabu or methylamphetamine hydrochloride;

From the foregoing, considering that appellants were found to have possessed forty-five (45) kilograms of
methylamphetamine hydrochloride, which is more than the two hundred (200) grams stipulated above, the
imposable penalty is reclusion perpetua, in accordance with R.A. No. 9346, otherwise known as "An Act Prohibiting
the Imposition of Death Penalty in the Philippines." As regards the fine, We find that the amount of One Million
Pesos (P1,000,000.00) for each appellant imposed by the RTC is proper, in view of the quantity seized from them.

WHEREFORE, premises considered, the instant appeal is DENIED. The Decision dated January 9, 2009 and
Resolution dated April 24, 2009 of the Court of Appeals in CA-G.R. CR HC No. 00657
is AFFIRMED with MODIFICATION that appellants herein are foundGUILTY of the crime of illegal possession of
regulated drugs.

SO ORDERED.

SECOND DIVISION

[ G.R. No. 200797, January 12, 2015 ]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. MANOLITO OPIANA Y TANAEL, ACCUSED-APPELLANT.

RESOLUTION

DEL CASTILLO, J.:

Appellant Manolito Opiana y Tanael was charged with the crimes of violations of Section 5 (sale of illegal drugs;
0.05 gram) and Section 11 (possession of dangerous drugs; 0.74 gram), both of Article II, Republic Act No. 9165 (RA
9165) or the Comprehensive Dangerous Drugs Act of 2002.

The facts of the case showed that on April 8, 2008, the Makati police officers and Makati Anti-Drug Abuse Council
(MADAC) operatives conducted an entrapment/buy-bust operation on appellant who was reportedly engaged in
illegal drug trade in Brgy. Guadalupe Viejo, Makati City. MADAC operative Sherwin Sydney Serrano (Serrano) acted
as poseur-buyer. After having been introduced by the informant as a "scorer" of shabu, appellant and Serrano
negotiated for the sale of P300.00 worth of shabu. Serrano gave appellant the P300 marked money and in
exchange, appellant handed to Serrano a heat-sealed sachet containing white crystalline substance. After making
the pre-arranged signal, appellant was apprehended and when bodily frisked, 19 heat-sealed sachets were
recovered from his possession. Laboratory examination revealed that all 20 heat-sealed sachets yielded positive
results for shabu.

Appellant denied the charges against him. He claimed that on April 8, 2008, he was repairing a vehicle in front of
his house when a green van arrived and three (3) men alighted. When he affirmatively answered to their query
whether he is "Noli," he was immediately arrested. He asserted that the police officers mistook him as the "Noli"
who was known to be a drug peddler in their area. He argued that he is known in their place as "Noli Mekaniko,"
and not the drug peddler.

Ruling of the Regional Trial Court (RTC)

In a Decision dated May 26, 2009, the Regional Trial Court of Makati City, Branch 65, convicted appellant of
violations of Sections 5 (sale of illegal drugs) and 11 (possession of dangerous drugs), Article II of RA 9165. It
ratiocinated thus:

In order to successfully prosecute an accused for illegal sale of dangerous drugs, the prosecution must be able to
prove the following elements: (1) identities of the buyer and seller, the object, and the consideration; and 2) the
delivery of the thing sold and the payment therefor. x x x The delivery of the illegal drugs subject of the sale and
the receipt of the marked money consummate the buy-bust transaction between the entrapping officers and the
accused. It is therefore important to prove only that the transaction or sale actually took place, coupled with the
presentation in court of the dangerous drugs. x x x

xxxx

After a prudent consideration, the court finds that the prosecution succeeded in proving the guilt of the accused
for the crime of violation of Section 5, Article II of Republic Act No. 9165 beyond reasonable doubt. Indeed, the
collective evidence presented during the trial by the prosecution adequately established that a valid buy-bust
operation was conducted by the operatives of the MADAC as well as the SAID-SOTF, Makati City on April 8, 2008
after proper coordination with the PDEA was made x x x. During the operation, 0.05 gram of shabu x x x was
purchased by MADAC operative Serrano from accused Manolito Opiana in consideration of P300.00. The results of
the laboratory test confirmed that the item contained in the said plastic sachet which was bought from the
accused was indeed methylamphetamine hydrochloride or shabu x x x. There can be no gainsaying the credibility
of the forensic chemist who conducted the laboratory examination on the specimen. In fact, nothing was adduced
or intimated that the said prosecution witness had reason to fabricate or concoct her findings.

Likewise, there can be no question about the identity of the corpus delicti in the instant case for sale of illegal
drugs. The small plastic sachet containing shabu marked as "WIN" which was brought to and identified in court
was found to be the same plastic sachet of shabu which the prosecution witness, MADAC operative Serrano,
purchased from the accused during the buy-bust operation. Brgy. Capt. Ernesto Bobier testified and confirmed
having signed the inventory sheet x x x of the items seized from the accused in his presence. Therefore, the
integrity and evidentiary value of the items confiscated and/or purchased from the accused had been well
safeguarded as to be reliable. Needless to state, the identity of the accused was positively established in open
court by the witnesses for the prosecution who pointed to him as the same person who was apprehended during
the buy-bust operation.

Moreover, the prosecution adequately established the existence of all the elements for the offense of illegal
possession of dangerous drugs under Section 11, Article II of the same Act, to wit: (1) the accused is in possession
of the object identified as a prohibited or regulated drug; (2) such possession is not authorized by law; and (3) the
accused freely and consciously possessed the said drug x x x.

It has been ruled that there can be no conviction for the subject offense unless the prosecution shows that the
accused knowingly possessed the prohibited articles in his person, or that animus possidendi is shown to be
present together with his possession or control of such article x x x. Based on the testimony of the prosecution
witnesses, however, it was clearly shown that nineteen (19) plastic sachets containing shabu x x x were recovered
from the accused. The contents thereof were later examined at the PNP Crime Laboratory and were found to be in
fact methylamphetamine hydrochloride or shabu. The accused had no authority to possess or otherwise use said
dangerous drugs; neither did he have any license or prescription to possess the same. The intention of the
accused to possess the said plastic sachets containing shabu was patent considering that these were found in his
person after a routine body search was conducted. It is also beyond cavil that he possessed the said plastic sachets
containing shabu freely and consciously.

The inventory of the items seized from the accused and the testimony in open court of Brgy. Capt. Ernesto Bobier,
an elected official, bolstered the claim of the prosecution that a buy-bust operation was conducted by operatives
of the MADAC as well as SAID-SOTF, Makati City, which operation resulted in the arrest of the accused. It is settled
that in cases involving violations of the Comprehensive Dangerous Drugs Act, credence is given to prosecution
witnesses who are police officers for they are presumed to have performed their duties in a regular manner, unless
there is evidence to the contrary. x x x[1]

The dispositive portion of the trial court's Decision reads:

WHEREFORE, in view of the foregoing, judgment is hereby rendered as follows:

1. In Criminal Case No. 08-542, the court finds the accused, MANOLITO OPIANA y TANAEL, GUILTY beyond
reasonable doubt of the charge for violation of Section 5, Article II, R.A. No. 9165 and sentences him to suffer the
penalty of life imprisonment and to pay a fine of Five Hundred Thousand Pesos (P500,000.00);

2. In Criminal Case No. 08-543, the court finds the same accused, MANOLITO OPIANA y TANAEL, GUILTY beyond
reasonable doubt of the charge for violation of Section 11, Article II, R.A. No. 9165 and sentences him to suffer the
penalty of imprisonment of twelve (12) years and one (1) day as minimum to fourteen (14) years and eight (8)
months as maximum and to pay a fine of Three Hundred Thousand Pesos (P300,000.00).

The period of detention of the accused should be given full credit.

Let the dangerous drugs subject matter of these cases be disposed of in the manner provided by law.

SO ORDERED.[2]

Ruling of the Court of Appeals

Aggrieved, appellant appealed to the Court of Appeals (CA). In his Brief, appellant alleged that the buy-bust team
did not observe the proper procedure governing the handling, custody and disposition of the illegal drugs. In
particular, he contended that there was a gap in the chain of custody as it was unclear what happened to the
specimen after it was delivered to the crime laboratory and examined by the forensic chemist or how it was
brought to the court. The defense also lamented the failure of the police officers to secure a search warrant or
warrant of arrest despite ample time to do the same.

Unpersuaded, the CA, in its June 30, 2011 Decision, ruled as follows:

WHEREFORE, PREMISES CONSIDERED, the instant appeal is DENIED. The Decision dated 26 May 2009 is hereby
AFFIRMED IN TOTO.

SO ORDERED.[3]

The CA opined that based on the testimony of MADAC operative Serrano, all the elements for the illegal sale of
dangerous drugs, i.e., that a sale transaction took place and the illicit drug was presented in court, were
satisfactorily proved. More important, the integrity and evidentiary value of the illicit drug were properly
preserved, viz:

x x x [T]he marking of the evidence was testified to by Serrano whereas the testimony of the investigator x x x was
stipulated upon by the prosecution and the defense. The recovered items were turned over to PO1 Randy C.
Santos upon his conduct of investigation. The request for laboratory examination was delivered by PO1 Gimena on
08 April 2008 at 2125H and the same was received by PSI Jocelyn J. Belen whose testimony was likewise stipulated
upon. Although there has been no photographs taken and no testimony as to what happened with the evidence
after the same was submitted for laboratory examination, the same was positively identified by Serrano during
trial. x x x[4]

Anent the charge for illegal possession of dangerous drugs, the CA also found that the prosecution satisfactorily
established all the elements thereof, to wit: 1) that the accused is in possession of a prohibited drug; 2) such
possession is not sanctioned by law; and 3) the accused freely and consciously possessed the illegal drugs. In
addition, the CA found no ill-motives on the part of the police operatives.

In an April 25, 2012 Resolution,[5] we required both parties to file their respective supplemental briefs. However,
both opted to adopt the briefs they submitted before the CA.

Our Ruling

After a careful review of the records of the case, the Court finds the appeal to be lacking in merit. Both the RTC of
Makati City, Branch 65 and the CA correctly found appellant guilty beyond reasonable doubt of violations of
Sections 5 and 11, Article II of RA 9165, as amended by RA 9346.[6] For the violation of Section 5, the prosecution
satisfactorily established the following elements: "(1) the identity of the buyer and the seller, the object and the
consideration; and (2) the delivery of the thing sold and the payment therefor. What is material in a prosecution
for illegal sale of dangerous drugs is the proof that the transaction or sale actually took place, coupled with the
presentation in court of the corpus delicti or the illicit drug in evidence."[7] Similarly, the prosecution satisfactorily
established the following elements for the illegal possession of dangerous drugs in violation of Section 11, to wit:
appellant was shown to have been in possession of 0.74 gram of shabu, a prohibited drug; his possession was not
authorized by law; and that he freely and consciously possessed the said illegal drug.

Under the law, the penalty for the unauthorized sale of shabu, regardless of its quantity and purity, is life
imprisonment to death and a fine ranging from P500,000.00 to P10 million. However, with the enactment of RA
9346, only life imprisonment and fine shall be imposed. Thus, the penalty imposed by the trial court and affirmed
by the CA, i.e., life imprisonment and a fine of P500,000.00, is proper. However, appellant is not eligible for parole
pursuant to Section 2 of the Indeterminate Sentence Law. The penalty for illegal possession of dangerous drugs,
on the other hand, is imprisonment of twelve (12) years and one (1) day to twenty (20) years and a fine ranging
from P300,000.00 to P400,000.00, if the quantity of the dangerous drug is less than five (5) grams. In this case,
appellant was found to have been in illegal possession of 0.74 gram of shabu. Thus, he was properly meted the
penalty of imprisonment ranging from twelve (12) years and one (1) day to 14 years and eight (8) months and a
fine of P300,000.00.

WHEREFORE, the June 30, 2011 Decision of the Court of Appeals is AFFIRMED with MODIFICATION. Appellant
Manolito Opiana y Tanael is hereby found guilty beyond reasonable doubt of the crime of violations of Sections 5
and 11, Article II of Republic Act No. 9165, as amended by Republic Act No. 9346, and sentencing him to suffer the
penalty of life imprisonment without eligibility for parole and ordering him to pay the fine of P500,000.00, for
violation of Section 5, Article II, Republic Act No. 9165, and imprisonment of twelve (12) years and one (1) day to
fourteen (14) years and eight (8) months and a fine of P300,000.00, for violation of Section 11, Article II, Republic
Act No. 9165.

SO ORDERED.

FIRST DIVISION

[ G.R. No. 184789, February 23, 2015 ]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. BEVERLY ALAGARME Y CITOY, ACCUSED-APPELLANT.

DECISION

BERSAMIN, J.:

The importance of the State establishing a preserved chain of custody in every criminal prosecution for the illegal
sale of dangerous drugs cannot be understated. The accused cannot be pronounced guilty of the offense if all the
links of the chain of custody of the drug subject of the illegal sale - the corpus delicti itself- are not shown. The
reason is that the drug presented as evidence at the trial is not shown beyond reasonable doubt that it was the
drug subject of the illegal sale.

The Case

Under review is the decision promulgated on May 28, 2008,[1] whereby the Court of Appeals (CA) affirmed the
judgment rendered on September 15, 2006 in Criminal Case No. 05-568 and Criminal Case No. 05-569 by the
Regional Trial Court (RTC), Branch 64, in Makati City[2] finding the appellant guilty beyond reasonable doubt of
violations of Section 5 and Section 11, Article II of Republic Act No. 9165 (Comprehensive Dangerous Drugs Act of
2002).

Antecedents

The information in Criminal Case No. 05-568 charged the appellant with violation of Section 5, Article II of Republic
Act No. 9165, viz:

That on or about the 14th day of March, 2005, in the City of Makati, Metro Manila, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, without the necessary license or prescription and
without being authorized by law, did then and there willfully, unlawfully and feloniously sell, deliver and give away
P200.00 worth of Methyl amphetamine Hydrochloride (Shabu) weighing zero point zero three (0.03) gram, a
dangerous drug.

CONTRARY TO LAW.[3]

while the information in Criminal Case No. 05-569 alleged violation of Section 11, Article II of Republic Act No.
9165, as follows:

That on or about the 14th day of March, 2005, in the City of Makati Metro Manila, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, not being lawfully authorized to possess and/or
use regulated drugs and without any license or proper prescription, did then and there willfully, unlawfully and
feloniously have in her possession, custody and control Methylamphetamine Hydrochloride (Shabu) weighing zero
point fifteen (0.15) gram, which is a dangerous drug, in violation of the aforesaid law.

CONTRARY TO LAW.[4]

The appellant pleaded not guilty to both informations.[5]

Version of the Prosecution

At the trial, the State presented as witnesses poseur buyer PO1 Percival Mendoza, and Makati Anti-Drug Abuse
Council (MADAC) Operative Miguel Castillo.

The police and MADAC operatives apprehended the appellant during a buy-bust operation conducted on Guiho
Street, Barangay Cembo, Makati City at around 4:40 p.m. on March 14, 2005. [6] The buy-bust team had been
formed with prior coordination with the Philippine Drug Enforcement Agency (PDEA) after P/Insp. Marietto
Valerio, the Action Officer of the Station Anti-Illegal Drugs Special Operations Task Force (SAID-SOTF), had received
information from a concerned citizen about the appellant, [7] whose name was on the police watch list, engaging in
the illegal sale of drugs.[8] The buy-bust money, which consisted of two P100.00 bills marked with C4, the acronym
for Cluster 4 of the MAD AC demarcating the area of operation, [9] was handed over to POl Mendoza as the
designated poseur-buyer.[10] The buy-bust team and the confidential informant then proceeded to the target area
on board a Toyota Revo.[11] The informant and POl Mendoza alighted from the Toyota Revo upon reaching Guiho
Street to await the arrival of the appellant.[12] When she finally arrived, the informant introduced POl Mendoza to
her as someone in need of shabu.[13] She asked POl Mendoza how much he wanted to buy.[14] The latter
replied: Katorse long po.[15] She asked for the payment; hence, POl Mendoza gave her the marked bills. [16] Upon
receiving the marked bills, she went into an alley and returned shortly thereafter with two plastic sachets
containing suspected shabu.[17] Picking one of the plastic sachets, POl Mendoza tucked it in his right front secret
pocket, which was the pre-arranged signal to alert the rest of the buy-bust team about the consummation of the
sale.[18] At the same time, POl Mendoza held her by the hand to arrest her. [19] Upon seeing the pre-arranged signal,
the rest of the buy-bust team, including MAD AC Operative Castillo, rushed forward, and assisted POl Mendoza in
apprehending her. After apprising her of her constitutional rights, POl Mendoza asked her to empty her pockets,
and when she complied, he recovered the buy-bust money from her.[20] He also recovered the other plastic sachet
from her right hand.[21]

POl Mendoza required the appellant to board the Toyota Revo. It was inside the vehicle where he marked the
plastic sachets with his initials PCM for the sachet subject of the sale, and PCM-1 for the sachet recovered from her
right hand.[22]

The buy-bust team brought the appellant and the confiscated items to the office of the SAID-SOTF for
documentation and investigation.[23] The team later brought her and the confiscated items to the PNP Crime
Laboratory for testing and examination.[24] Her urine sample and the white crystalline substances contained in the
two plastic sachets tested positive for methylamphetamine hydrochloride, otherwise known as shabu.[25]

Version of the Defense

The appellant was the lone witness of the Defense.

The appellant denied the charges, and insisted that she had been the victim of a frame-up. According to her, she
was cleaning the house of Gona Gonzales at No. 94 Guiho Street, Barangay Cembo, Makati City, for whom she
worked as househelper.[26] She later on went out to buy rice and on her way to the store, two men approached and
announced her that they were able to buy shabu from her.[27] One of the men poked his gun at her. They then
brought her to the basketball court, where they frisked and ordered her to bring out the shabu.[28]They recovered
money amounting to P180.00 from her.[29] They asked if she knew anyone selling shabu, but she answered them in
the negative.[30] They brought her to the MADAC office where she remained for a day. [31] She was later taken to the
PNP Crime Laboratory for drug testing. She admitted using shabu only once, a year prior to her arrest.[32]

Judgment of the RTC

On September 15, 2006, the RTC convicted the appellant of the two offenses charged, ruling:

WHEREFORE, in view of the foregoing judgment is rendered as follows:

1. In Criminal Case No. 05-568, the Court finds accused BEVERLY ALAGARME y CITOY GUILTY beyond reasonable
doubt of the offense of Violation of Section 5, Article II, Republic Act No. 9165 and sentences her to suffer LIFE
IMPRISONMENT and to pay a fine of FIVE HUNDRED THOUSAND (P500,000.00) PESOS.

2. In Criminal Case No. 05-569, the Court finds the accused BEVERLY ALAGARME y CITOY GUILTY beyond
reasonable doubt of the offense of Violation of Section 11, Article II, Republic Act No. 9165 and sentences her to
suffer the indeterminate imprisonment of Twelve (12) years and one (1) day, as minimum to Fourteen (14) years,
as maximum, and to pay a fine of THREE HUNDRED THOUSAND (P300,000.00) PESOS.

The period during which the accused was under detention shall be considered in her favor pursuant to existing
rules.

The Branch Clerk of Court is directed to submit to the Philippine Drug Enforcement Agency (PDEA) the two (2)
plastic sachets of shabu with a combined weight of zero point eighteen (0.18) gram for said agency's appropriate
disposition.

SO ORDERED.[33]

Decision of the CA

The appellant appealed to the CA, contending that the Prosecution's patent non-compliance with the
requirements under Section 21 of Republic Act No. 9165 warranted her acquittal.

On May 28, 2008, the CA affirmed the conviction of the appellant, [34] holding that the integrity and evidentiary
value of the confiscated items had been safeguarded notwithstanding the Prosecution's failure to comply with the
requirements prescribed under Section 21 of Republic Act No. 9165; and that her mere denial and unsubstantiated
defenses did not overcome the presumption of regularity of the buy-bust operation over.
 Issue

Did the CA err in finding the appellant guilty beyond reasonable doubt of the violations of Section 2 and Section 5,
Article II of Republic Act No. 9165 charged?

Ruling

After careful examination of the records, we acquit the appellant because of the State's failure to prove her guilt
beyond reasonable doubt.

In every prosecution for the illegal sale of dangerous drugs, the presentation of the drugs as evidence in court is
material,[35] because the identity of the drugs seized should be established beyond any reasonable doubt. What is
more, the fact that the substance bought during the buy-bust operation is the same substance offered in court
should be proven. The preservation of the chain of custody of the drugs seized performs the function of ensuring
that unnecessary doubts attending the identity of the evidence are removed.[36]

Section 21(1) of Republic Act No. 9165 lays down the procedure to be followed in the seizure and ensuing custody
of the seized dangerous drugs, viz.:

Section 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;

xxxx

Section 21 (a), Article II of the Implementing Rules and Regulations (IRR) of Republic Act No. 9165, states:

xxxx

(a) The apprehending office/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,
furtherthat 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;
xxxx

The foregoing procedure underscores the value of preserving the chain of custody in relation to the dangerous
drugs. To give effect to the procedure, the Dangerous Drugs Board (DDB), which is the policy-making and strategy-
formulating body in the planning and formulation of policies and programs on drug prevention and control tasked
to develop and adopt a comprehensive, integrated, unified and balanced national drug abuse prevention and
control strategy,[37] has defined chain of custody involving the dangerous drugs and other substances in Section l(b)
of DDB Regulation No. 1, Series of 2002[38] thusly:

b. "Chain of Custody" means 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; (Emphasis supplied)

With this concern for the due recording of the authorized movement and custody of the seized drugs or controlled
chemicals or plant sources of dangerous drugs or laboratory equipment, the presentation as evidence in court of
the dangerous drugs subject of the illegal sale is material in every prosecution for the illegal sale of dangerous
drugs.[39] This materiality derives from the dangerous drugs being themselves the corpus delicti. Indeed, proof of
the corpus delicti is essential in every judgment of conviction.[40] Without proof of the corpus delicti, there is
uncertainty about whether the crime really transpired or not. To eliminate the uncertainty, the Prosecution should
account for every link in the chain of custody; otherwise, the crime is not established beyond reasonable doubt. In
other words, the Prosecution does not comply with the indispensable requirement of proving the violation of
Section 5 of Republic Act No. 9165 either when the dangerous drugs are missing or when there are substantial
gaps in the chain of custody of the seized dangerous drugs that raise doubts about the authenticity of the evidence
presented in court.[41]

A reading of the record indicates that the buy-bust team did not observe the procedures laid down by Republic Act
No. 9165 and its IRR. The marking of the seized drugs or other related items immediately upon seizure from the
accused is crucial in proving the chain of custody because it is the starting point in the custodial link. The marking
upon seizure serves a two-fold function, the first being to give to succeeding handlers of the specimens a
reference, and the second being to separate the marked evidence from the corpus of all other similar or related
evidence from the time of seizure from the accused until their disposition at the end of criminal proceedings,
thereby obviating switching, "planting," or contamination of evidence. [42] This requirement of marking as laid down
by the law was not complied with. Firstly, PO1 Mendoza simply stated that he did the marking of the confiscated
items with his initials inside the Toyota Revo. Although the appellant was also inside the Toyota Revo at that
time,[43] he did not state if his marking was done within the view of the appellant, or within the view of any
representative from the media, Department of Justice or any elected public official. Secondly, both he and MADAC
Operative Castillo did not indicate if any media or DOJ representative or elected public official had been present
during the buy-bust operation and when the drugs were recovered from the appellant at the scene of the
apprehension. The law unequivocally required such presence. Thirdly, there was also no showing of any inventory
of the confiscated items being undertaken or prepared. The lack of the inventory was confirmed by the absence of
any certificate of inventory being formally offered as evidence by the Prosecution. [44] Lastly, the Prosecution did
not produce any photographs taken of the sachets of shabu immediately following their seizure.

The last paragraph of Section 21 (a), Article II of the IRR of Republic Act No. 9165 provides a saving mechanism to
ensure that not every case of non-compliance with the safeguards to preserve the chain of custody will
irretrievably prejudice the Prosecution's case against the accused. However, in order for such saving mechanism to
apply, the Prosecution must first recognize the lapse or lapses in the prescribed procedures and then explain the
lapse or lapses.[45] Here, however, the Prosecution did not bother to show that a media representative, DOJ
representative or elected public official had been notified of the buy-bust operation or, assuming that the DOJ
representative or public official had been so priorly informed, the lawmen did not explain why none of such
representatives was around to witness the actual marking of the evidence. Indeed, the Prosecution did not even
try to show that the application of the saving mechanism provided in Section 21 (a), Article II of the IRR of Republic
Act No. 9165 would be justified. Under the circumstances, the identification of the seized evidence in court during
the trial became ambiguous and unreliable, rendering the proof of the links in the chain of custody of the corpus
delicti unworthy of belief.

Where the State did not establish a preserved chain of custody of the dangerous drugs according to the statutory
procedure for doing so, we have no need to review the claim of the appellant about her being framed up on
trumped-up charges. In view of the presumption of her innocence, she did not need to explain her arrest for the
crimes charged against her. The presumption should be overcome only by strong evidence of her guilt.

WHEREFORE, the Court REVERSES and SETS ASIDE the decision promulgated on May 28, 2008 by the Court of
Appeals; ACQUITS appellant BEVERLY ALAGARME y CITOY on the ground of the failure of the Prosecution to
establish her guilt beyond reasonable doubt; and ORDERS her IMMEDIATE RELEASE from the Correctional Institute
for Women of the Bureau of Corrections, unless she is confined for another lawful cause.

The Director of the Correctional Institute for Women of the Bureau of Corrections is directed to implement this
decision and to report to this Court the compliance within 10 days from receipt hereof.

SO ORDERED.

SECOND DIVISION

[ G.R. No. 189840, December 11, 2013 ]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. JAY MONTEVIRGEN Y OZARAGA, ACCUSED-APPELLANT.

DECISION

DEL CASTILLO, J.:

Failure to physically inventory and photograph the shabu seized from an accused in the manner prescribed by law
do not invalidate his arrest or render said drug inadmissible in evidence if its integrity and evidentiary value remain
intact. It could still be utilized in determining the guilt or innocence of the accused. [1]

Factual Antecedents

On appeal is the Decision[2] dated July 31, 2009 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 03208 which
affirmed the Decision[3] dated December 18, 2007 of Branch 65, Regional Trial Court (RTC) of Makati City in
Criminal Case Nos. 05-1396 to 1397 convicting beyond reasonable doubt Jay Montevirgen y Ozaraga (appellant) for
the crime of illegal sale and possession of shabu under Sections 5 and 11, Article II of Republic Act (RA) No. 9165 or
the "Comprehensive Dangerous Drugs Act of 2002."

The Informations against appellant read as follows:

Criminal Case No. 05-1396

That on or about the 19th day of July 2005, in the City of Makati, Philippines, a place within the jurisdiction of this
Honorable Court, the above- named accused, without being authorized by law, did then and there willfully,
unlawfully and feloniously sell distribute and transport, weighing zero point zero four (0.04) gram of
Methylamphetamine Hydrochloride (Shabu), which is a dangerous drug, in violation of the above-cited law.

CONTRARY TO LAW.[4]

Criminal Case No. 05-1397

That on or about the 19th day of July 2005, in the City of Makati, Philippines, a place within the jurisdiction of this
Honorable Court, the above- named accused, not lawfully authorized to possess or otherwise use any dangerous
drug and without the corresponding license or prescription, did then and there willfully, unlawfully and feloniously
have in his possession, direct custody and control weighing zero point zero four (0.04) gram and zero point ten
(0.10) gram or [a] total weight of zero point fourteen (0.14) gram of Methylamphetamine Hydrochloride (Shabu),
which is a dangerous drug, in violation of the above-cited law.

CONTRARY TO LAW.[5]
During arraignment, appellant pleaded "not guilty" in the two cases. After the pre-trial conference, a joint trial on
the merits ensued.

Version of the Prosecution

On July 18, 2005, P/Supt. Marietto Valerio (P/Supt. Valerio) of the Makati City Police Station Anti-Illegal Drugs
Special Operation Task Force received a report from a confidential informant that appellant was selling shabu in
Malvar Street, Barangay South Cembo, Makati City. Thus, he immediately formed a team composed of police
officers and personnel of the Makati Anti-Drug Abuse Council (MADAC) to conduct a buy-bust operation against
appellant. The members of the entrapment team were PO3 Esterio M. Ruiz, Jr. (PO3 Ruiz), PO1 Percival Mendoza,
PO1 Honorio Marmonejo (PO1 Marmonejo), Barangay Captain Rodolfo Doromal, Eugenio Dizer, Miguel Castillo,
Leo Sese, and Anthony Villanueva. PO3 Ruiz was designated as poseur-buyer and was provided with two 100-peso
bills marked money. PO1 Marmonejo, on the other hand, coordinated the operation with the Philippine Drug
Enforcement Agency (PDEA), which issued a Certificate of Coordination. [6] The buy-bust team then proceeded to
the subject area but could not locate appellant.[7]

The next day, July 19, 2005, the buy-bust team returned to Malvar Street and found appellant talking to three
men. After these men departed, PO3 Ruiz, accompanied by the confidential informant, approached appellant. The
confidential informant introduced PO3 Ruiz to appellant and told him that PO3 Ruiz wanted to buy shabu.
Appellant asked PO3 Ruiz how much he wanted to buy and he replied, P200.00. Appellant pulled out from his
pocket three plastic sachets containing white crystalline substance and told PO3 Ruiz to choose one. He complied
and gave the marked money to appellant as payment. Appellant pocketed the remaining plastic sachets together
with the marked money. PO3 Ruiz then took off his cap the pre-arranged signal that the transaction had been
consummated. The other buy-bust team members then rushed to the scene to assist PO3 Ruiz in apprehending
appellant. The two other plastic sachets and marked money were recovered from appellant after PO3 Ruiz ordered
him to empty his pockets. PO3 Ruiz then marked the plastic sachets "EMR" for the one appellant sold to him and
"EMR-1" and "EMR-2"[8] for the other two sachets confiscated from appellant.

Appellant was taken to the police headquarters where he was booked and the incident recorded in the police
blotter. The items seized from him were turned over to the duty investigator who prepared a request for
laboratory examination and then sent to the crime laboratory. The results revealed that the contents of the plastic
sachets are positive for shabu.[9]

Version of the Defense

Appellant testified that on July 19, 2005, at around 2 p.m., he was in his house with his wife and child when he was
roused from sleep by a man armed with a gun. Several other armed men entered his house. He was told that a
buy-bust operation was being conducted. They searched his house then appellant was made to board a vehicle
where he was showed a plastic sachet containing white crystalline substance that he believed to be shabu. He
struggled to free himself and denied ownership thereof but his actions were futile. He was taken
to Barangay Olympia, Makati City, where he was detained for 30 minutes, then brought to the crime laboratory for
drug testing.[10]

Defense witness Fancy Dela Cruz corroborated the testimony of appellant. She averred that at around 1:30 p.m. of
July 19, 2005, two vehicles parked almost in front of her. Several men alighted from the vehicles and forced open
the door of appellant's house. She inquired as to their intentions but was told not to intervene and to avoid
involvement. She complied but heard one of the men telling appellant to get up and put on his clothes. The men
then had appellant board one of the vehicles and sped away. She looked for appellant's wife and informed her of
the incident.[11]

Ruling of the Regional Trial Court

The RTC gave credence to the testimony of the prosecution witnesses on the events that transpired prior to and
during the buy-bust operation. It rendered a verdict of conviction on December 18, 2007, [12] viz:

WHEREFORE, in view of the foregoing, judgment is hereby rendered as follows:

1. In Criminal Case No. 05-1396, the Court finds accused JAY MONTEVIRGEN y OZARAGA, GUILTY beyond
reasonable doubt of the charge for violation of Sec. 5, Art. II, RA 9165, and sentences him to suffer LIFE
imprisonment and to pay a fine of FIVE Hundred Thousand (P500,000.00) pesos;

2. In Criminal Case No. 05-1397, the Court finds accused JAY MONTEVIRGEN y OZARAGA, GUILTY beyond
reasonable doubt of the charge for violation of Sec. 11, Art. II, RA 9165 and sentences him to suffer the penalty of
imprisonment of Twelve (12) years and one (1) day as minimum to Twenty (20) years as maximum and to pay a
fine of Three Hundred Thousand (P300,000.00);

The period of detention of the accused should be given full credit.

Let the dangerous drug subject matter of these cases be disposed of in the manner provided for by law.

SO ORDERED.[13]
Ruling of the Court of Appeals

On appeal, the CA concurred with the RTC's findings and conclusions and, consequently, affirmed its judgment in
the assailed Decision[14] of July 31, 2009. The dispositive portion of CA's Decision reads:

WHEREFORE, the appeal is DENIED. The December 18, 2007 Decision of the Regional Trial Court of the City of
Makati, Branch 65 is hereby AFFIRMED.

SO ORDERED.[15]
Assignment of Errors

Still unable to accept his conviction, appellant is now before us raising the same interrelated errors he assigned
before the CA, viz:

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT DESPITE NON-COMPLIANCE WITH
THE REQUIREMENTS FOR THE PROPER CUSTODY OF SEIZED DANGEROUS DRUGS UNDER R.A. NO. 9165.
 II

THE TRIAL COURT GRAVELY ERRED IN GIVING CREDENCE TO THE PROSECUTION'S EVIDENCE NOTWIT[H]STANDING
THE FAILURE OF THE A[P]PREHENDING TEAM TO PROVE [THE] INTEGRITY OF THE SEIZED DRUGS.[16]
In his joint discussion of these errors, appellant contends that the police officers involved in the buy-bust operation
failed to observe the proper procedure in the custody and control of the seized drug by not marking the
confiscated specimens in the manner mandated by law. He claims that the arresting team did not immediately
conduct a physical inventory of the seized items and photograph the same in the presence of his representative or
counsel, representative from media, Department of Justice, and any elected public officials pursuant to Section 21
of the Implementing Rules and Regulations of RA 9165. He also argues that the Certificate of Coordination has no
weight in evidence and cannot be used to prove the legitimacy of the buy-bust operation since it was issued for
the failed entrapment operation the previous day, July 18, 2005.

Appellee, through the Office of the Solicitor General argues that the prosecution sufficiently established all the
elements of illegal sale and possession of shabu against appellant. It asserts that the integrity and evidentiary value
of the shabu seized from appellant were properly preserved by the arresting team.

Our Ruling

The appeal is unmeritorious.

Elements for the Prosecution of Illegal Sale and Possession of Shabu.

In every prosecution for the illegal sale of shabu, under Section 5, Article II of RA 9165, the following elements
must be proved: "(1) the identity of the buyer and the seller, the object and the consideration; and (2) the delivery
of the thing sold and the payment therefor. x x x What is material in a prosecution for illegal sale of dangerous
drugs is the proof that the transaction or sale actually took place, coupled with the presentation in court of
the corpus delicti"[17] or the illicit drug in evidence. On the other hand, in prosecuting a case for illegal possession
of dangerous drugs under Section 11, Article II of the same law, the following elements must concur: "(1) the
accused is in possession of an item or object, which is identified as a prohibited drug; (2) such possession is not
authorized by law; and (3) the accused freely and consciously possessed the drug. [18]

In this case, all the elements for the illegal sale of shabu were established. PO3 Ruiz, the poseur-buyer, positively
identified appellant as the person he caught in flagrante delicto selling a white crystalline substance believed to
be shabu in the entrapment operation conducted by the police and MADAC operatives. Upon receipt of the
P200.00 buy-bust money, appellant handed to PO3 Ruiz the sachet containing 0.04 gram of white crystalline
substance which later tested positive for shabu. "The delivery of the contraband to the poseur-buyer and the
receipt by the seller of the marked money successfully consummated the buy-bust transaction x x x."[19]

All the elements in the prosecution for illegal possession of dangerous drugs were also established. First, the two
plastic sachets containing shabu subject of the case for the illegal possession of drugs were found in appellant's
pocket after a search on his person was made following his arrest in flagrante delicto for the illegal sale of shabu. It
must be remembered that a person lawfully arrested may be searched for anything which may have been used or
constitute proof in the commission of an offense without a warrant. [20] Second, appellant did not adduce evidence
showing his legal authority to possess the shabu. Third, appellant's act of allowing the poseur-buyer to choose one
from among the three sachets and putting back into his pocket the two sachets of shabu not chosen clearly shows
that he freely and consciously possessed the illegal drugs. Hence, appellant was correctly charged and convicted
for illegal possession of shabu.

Appellant's defense of denial cannot prevail against the positive testimony of prosecution witnesses. There is also
no imputation by appellant of any evil motives on the part of the buy-bust team to falsely testify against him. Their
testimonies and actuations therefore enjoy the presumption of regularity.

Failure to Physically Inventory and Photograph the Shabu After Seizure and Confiscation is Not Fatal.

Appellant draws attention to the failure of the apprehending police officers to comply with Section 21(a), Article II
of the Implementing Rules and Regulations of RA 9165 regarding the physical inventory and photograph of the
seized items. This provision reads as follows:

(1) 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.
In other words, the failure of the prosecution to show that the police officers conducted the required physical
inventory and take photograph of the objects confiscated does not ipso facto render inadmissible in evidence the
items seized. There is a proviso in the implementing rules stating that when it is shown that there exist justifiable
grounds and proof that the integrity and evidentiary value of the evidence have been preserved, the seized items
can still be used in determining the guilt or innocence of the accused. [21]

Here, the absence of evidence that the buy-bust team made an inventory and took photographs of the drugs
seized from appellant was not fatal since the prosecution was able to preserve the integrity and evidentiary value
of the shabu. PO3 Ruiz, the poseur-buyer and apprehending officer, marked the seized items in front of appellant,
the barangay captain and other members of the buy-bust team, immediately after the consummation of the drug
transaction. He then delivered the seized items to the duty investigator, who in turn sent the same to the PNP
Crime Laboratory for examination on the same day. During trial, PO3 Ruiz was able to identify the said markings
and explain how they were made.

Clearly, there was no hiatus or confusion in the confiscation, handling, custody and examination of the shabu. The
illegal drugs that were confiscated from appellant, taken to the police headquarters, subjected to qualitative
examination at the crime laboratory, and finally introduced in evidence against appellant were the same illegal
drugs that were confiscated from him when he was caught in flagrante delicto selling and possessing the same.

Appellant's contention that the buy-bust team should have coordinated with the PDEA on the day the entrapment
operation occurred deserves scant consideration. Coordination with the PDEA is not an indispensable element of a
proper buy-bust operation.[22] A buy-bust operation is not invalidated by mere non-coordination with the PDEA.[23]

Penalty

Under Section 5, Article II of RA 9165, the penalty for the unauthorized sale of shabu, regardless of its quantity and
purity, is life imprisonment to death and a fine ranging from P500,000.00 to P10 million. Since the penalty imposed
by the RTC and affirmed by the CA is within the prescribed range, we affirm the lower courts' imposition of life
imprisonment as well as the payment of fine of P500,000.00.

On the other hand, Section 11(3), Article II of the same law provides that illegal possession of less than five grams
of shabu is penalized with imprisonment of twelve (12) years and one (1) day to twenty (20) years plus a fine
ranging from P300,000.00 to P400,000.00.
Appellant was found guilty of selling one sachet containing 0.04 gram of shabu and of possessing two other
sachets of the same substance with a total weight of 0.14 gram. Hence, applying the above provisions, the penalty
of imprisonment of twelve (12) years and one (1) day as minimum to twenty (20) years as maximum and the
payment of fine of P300,000.00 imposed by the RTC and affirmed by the CA are also proper.

WHEREFORE, the appeal is DISMISSED. The assailed Decision dated July 31, 2009 of the Court of Appeals in CA-
G.R. CR-H.C. No. 03208 affirming the conviction of Jay Montevirgen y Ozaraga by the Regional Trial Court of Makati
City, Branch 65, for violation of Sections 5 and 11, Article II of Republic Act No. 9165, is AFFIRMED.

SO ORDERED.

FIRST DIVISION

[ G.R. No. 206229, February 04, 2015 ]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. AMY DASIGAN Y OLIVA, ACCUSED-APPELLANT.

DECISION

PEREZ, J.:

Before the Court is a notice of appeal assailing the Decision dated 23 July 2012 of the Court of Appeals (CA) in CA-
G.R. CR-H.C. No. 04845,[1] which affirmed the Decision dated 7 January 2011 of the Regional Trial Court (RTC), La
Trinidad, Benguet, Branch 8 in Criminal Case Nos. 07[2]-CR-6702 and 07[3]-CR-6703,[4] finding accused-appellant
Amy Dasigan y Oliva (accused-appellant) guilty beyond reasonable doubt of illegal possession and illegal sale
of shabu under Sections 11 (3) and 5, Article II of Republic Act No. 9165 (R.A. No. 9165) or the Comprehensive
Dangerous Drugs Act of 2002.

In Criminal Case No. 07-CR-6702, the accused-appellant was charged with violation of Sec. 11 (3), Art. II of R.A. No.
9165, as follows:

That on or about the 9th day of December 2006, at Bayabas, Municipality of La Trinidad, Province of Benguet,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, without being
authorized by law, did then and there willfully, unlawfully and knowingly have in her possession, control and
custody a total of 0.28 grams (sic) of Methamphetamine Hydrochloride also known as "shabu", a dangerous drug,
in violation of the said law. [5]

In Criminal Case No. 07-CR-6703, on the other hand, the accused-appellant was charged with violation of Sec. 5,
Art. II of R.A. No. 9165, to wit:

That on or about the 9th day of December, 2006, at Barangay Bayabyas, Municipality of La Trinidad, Province of
Benguet, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, without any
authority by law, did then and there willfully, unlawfully and knowingly deliver and sell to PO2 ARIELTINO G.
CORPUZ, a member of the Philippine Drug Enforcement Agency who acted as a poseur-buyer, 0.15 grams (sic) of
Methamphetamine Hydrochloride also known as "shabu", a dangerous drug, in violation of the said law. [6]

Upon arraignment, accused-appellant, assisted by counsel, pleaded not guilty to both of the charges. [7] Trial on the
merits followed, and the two cases were heard jointly.
As comprehensively summarized by the RTC, the version of the prosecution is as follows:

On December 5, 2006, at the Philippine Drug Enforcement Agency (PDEA) office, Melvin Jones Grandstand,
Harrison Road, Baguio City, a male confidential informant reported to Police Chief Inspector Luisito Meris that a
certain alias "Amy" is engaged in delivering Methamphetamine Hydrochloride, also known as "Shabu" within the
vicinity of the La Trinidad Trading Post at Km. 5, La Trinidad, Benguet. Those present at the office were PO2
Arieltino Corpuz, SPO2 Cabily Agbayani and SPO1 Bernardo Ventura and they all heard this piece of information.
PCI Meris relayed the information to the PDEA Regional Director, Col. Inmodias and the latter formed a team
tasked to conduct the operation against alias "Amy" and cause her eventual arrest. PCI Meris was designated
Team Leader and PO2 Corpuz, SPO2 Agbayani and SPO1 Ventura were tasked as arresting officers.

The team leader, PCI Meris then directed PO2 Corpuz and the confidential informant to conduct surveillance
within the vicinity of the La Trinidad Trading Post at Km. 5, La Trinidad, Benguet and look in to the activities of alias
"Amy".

Thus, the following day, December 6, 2006, PO2 Corpuz and the confidential informant met at 4:00 o'clock in the
morning within the premises of the Benguet General Hospital as the informant stated that the activities of alias
"Amy" were always done in the morning. PO2 Corpuz and the confidential informant walked to the La [Trinidad]
Trading Post and the former told the latter that if alias "Amy" would come, he (informant) should go near her so he
(PO2 Corpuz) could meet her. Indeed at around 4:30 o'clock in the morning, a woman named "Amy" arrived and
the confidential informant met and talked to her before he called PO2 Corpuz. PO2 Corpuz was introduced to
"Amy" as the buyer of "shabu". "Amy" said she had something else to do and so she just gave PO2 Corpuz her cell
phone number. PO2 Corpuz then went back to their office leaving the confidential informant at the La Trinidad
Trading Post.

On December 8, 2006, PO2 Corpuz called "Amy" and asked her regarding their transaction as he was willing to buy
"shabu" worth two thousand pesos (PHP 2,000.00). "Amy" said she will deliver the shabu the following day,
December 9, 2006 at 6:00 o'clock in the morning at the vicinity of the La Trinidad Trading Post.

On December 9, 2006 at about 4:00 o'clock in the morning, the team already designated by the Regional Director
proceeded first to the La Trinidad Police Station which was just in front of the La Trinidad Trading Post at Km. 5, La
Trinidad, Benguet to coordinate with the local police before going to the rendezvous area. On instruction of Team
Leader PCI Meris, PO2 Corpuz called "Amy" and told her he was already at the La Trinidad Trading Post. However,
"Amy" said that she could not make it as she was doing something and asked him to see her at 4:00 o'clock that
afternoon. He agreed to her plan and so the team went back to their office.

At around 4:00 o'clock in the afternoon of the same day, the team went back to the La Trinidad Trading Post and
again PO2 Corpuz called "Amy" through her cell phone. "Amy" answered and directed PO2 Corpuz to go to the
road leading to Bayabas, La Trinidad, Benguet and she would deliver the "shabu" there. The team proceeded as
directed and PO2 Corpuz as the poseur-buyer with PHP 2,000.00 in his possession positioned himself at the
entrance of the road leading to Bayabas while the rest of the team stayed at a place where they could see the
transaction going on. PCI Meris stationed himself at the alley beside a store and from his vantage point, he could
see the arresting officers, SPO2 Agbayani and SPO1 Ventura but he could not actually see PO2 Corpuz.

Thirty minutes later, "Amy" arrived. She brought what appeared to be small transparent plastic sachets containing
white crystalline substance, picked out two sachets (Exhibits "C" and "C-1") and gave it to PO2 Corpuz. He asked
whether the items were of good quality to which "Amy" answered that those were "first class". He pressed the
white crystals and right away it crumbled into powdery substance and he suspected that the substance was
"shabu". "Amy" then demanded the payment of Two Thousand Pesos. He was ready with the amount but he was
instructed that once the "shabu" was given to him, he need not hand the money any longer. Thus, PO2 Corpuz
placed the two sachets in his pant[s] pocket and held Amy's right hand and announced "Pulis ako!" This was the
pre-arranged signal and so the rest of the team rushed to the scene and SPO1 Ventura held "Amy" while SPO2
Agbayani told her her constitutional rights. PCI Meris then told "Amy" to empty her pockets. "Amy" complied and
PCI Meris saw her actually bringing out her cell phone and four sealed sachets (Exhibits "D", "D-1", "D-2" and "D-
3") each containing a white substance similar to the ones she handed to PO2 Corpuz. PO2 Corpuz then got the
sealed sachets and he turned over all the six sachets, the two sachets sold to him and the four sachets which
"Amy" brought out from her pocket, as well as the cell phone to the team leader PCI Meris. PCI Meris then held on
to the items as they went to the La Trinidad Police Station.

xxxx

"Amy" was then brought to the La Trinidad Police Station purposely for the case to be entered in the police
blotter. The team with the accused in tow went back to the PDEA Office at Melvin Jones Grandstand, Harrison
Road, Baguio City where she was booked and a Booking Sheet and Arrest Report (Exhibit "F", page 95, Rollo,
Criminal Case No. 6702) was prepared. She was then identified as Amy Dasigan, the accused in this case. PCI
Meris brought out the seized items and directed his team members to put their initials on said items. When asked
why the initials were not indicated on the plastic sachets at the time of the arrest, PCI Meris explained that
Bayabas, La Trinidad, Benguet, is a notorious place based on his personal knowledge as he grew up in La Trinidad,
Benguet as well as based on statistics of the PNP of La Trinidad, Benguet. Being a notorious place and fearing that
the accused may have some back-up, he deemed it best that the marking be done in their office and so they left
the place right after the arrest of the accused.

PO2 Corpuz, SPO1 Ventura and SPO2 Agbayani each placed their initials on all the plastic sachets containing
suspected "shabu". The initials CJA was for Cabily J. Agbayani; the initials AGC for Arieltino G. Corpuz and the
initials BAV for Bernardo A. Ventura. "Amy" was in the office witnessing the men as they placed their initials. After
placing their initials on the items seized, PCI Meris turned over the seized items to the Evidence Custodian of
PDEA-CAR, SPO3 Romeo L. Abordo, Sr.

xxxx

SPO3 Romeo Abordo then prepared the inventory of the seized items (Exhibits "B" and "B-1", page 94, Rollo,
Criminal Case No. 6702), consisting of two small heat-sealed transparent plastic sachets containing white
crystalline substance and bearing the initials CJA, AGC and BAV, four small heat-sealed transparent plastic sachets
containing white crystalline substance also bearing the initials CJA, AGC and BAV and one Nokia cell pohone with a
SIM card. The inventory was done in the presence of Pros. Gondayao of the Benguet Provincial Prosecutor's
Office, the accused, and elected official and a member of the media. SPO3 Abordo testified that the cell phone
was no longer functioning as although they tried to charge it, it could not be charged.

On December 10, 2006, SPO3 Abordo brought the request for laboratory examination (Exhibit "G", page 96, Rollo,
Criminal Case No. 6702) together with the confiscated items (Exhibits "C", "C-1", "D", "D-1", "D-2", "D-3") to the
PNP Crime Laboratory where it was received by PO1 Joseph Andrew P. Dulnuan.

PO1 Dulnuan of the PNP Crime Laboratory received the items from SPO3 Abordo. He compared the items listed in
the request with the items he received and finding it accurate, he placed a control number on the request, Control
No. 329-06, logged in the request and accepted the turned-over items (Exhibit "G-1", page 96, Rollo, Criminal Case
No. 6702). PO1 Dulnuan then turned over these same items to Forensic Chemist PSInsp. Edward Gayados.

PSInsp. Edward Gayados is the forensic chemical officer of the PNP Crime Laboratory at Camp Dangwa, La Trinidad,
Benguet. On December 10, 2006, he received from PO1 Dulnuan a request from the PDEA-CAR for the conduct of
a laboratory examination on suspected "shabu". The items turned over to him by PO1 Dulnuan were two heat-
sealed transparent plastic sachets containing white crystalline substance (Exhibits "C" and "C-1") and four heat-
sealed transparent plastic sachets containing white crystalline substance (Exhibits "D", "D-1", "D-2" and "D-3"). All
the plastic sachets contained the intials CJA, AGC and BAV.
xxxx

SPInsp. Gayados then marked each specimen submitted indicating the case number assigned by their office, the
date of the examination and his initials. His findings were placed in writing under Chemistry Report No. D-056-06
(Exhibits "I" and "I-1", page 7, Rollo, Criminal Case No. 6703) and his findings and conclusion state "Qualitative
examination conducted on the above-stated specimens "A & B" gave POSITIVE result to the tests for the presence
of Methamphetamine hydrochloride, a dangerous drug. xxx Specimens "A & B" contain Methamphetamine
hydrochloride, a dangerous drug.xxx" (Exhibit "I-2"). [8]

The defense's version, on the other hand, is as follows:

On December 8, 2006, she was at home when PDEA agents went to their house at around 10:00 o'clock in the
morning. She knew them as PDEA agents as her sister-in-law Norma Domingo accompanied them when somebody
was arrested in Bayabas sometime before that day. In fact, the agents even dropped by their house and so they
knew where she lived. She identified the agents as Corpuz, Meris and Agbayani. These agents told her that her
daughter Ghel was in their office as she was caught in possession of "shabu". She then went with the PDEA agents
and she saw her daughter Ghel in the PDEA vehicle but she was not able to talk to her. She was then brought tot
he PNP Office at Camp Dangwa, La Trinidad, Benguet where she was shown the "shabu" after which she was
brought to the PDEA Office at Melvin Jones Grandstand, Harrison Road, Baguio City. She then saw her daughter
and the PDEA agents talking after which the PDEA accompanied her daughter to get her sister-in-law Norma
Domingo as it was the latter who told the daughter of the accused to deliver the "shabu" to the La Trinidad Trading
Post. Later that evening, her daughter came back with Norma Domingo. The accused was not able to talk to her
sister-in-law before the latter was transferred to Camp Dangwa as according to the PDEA agents, they could not be
together. The accused stated that her sister-in-law had always been arrested for possession of "shabu" but she
was always freed. But this time, the PDEA agents told her that she was being arrested as they insisted that the
"shabu" came from her. She further insists that she was arrested on December 8, 2006 and not December 9, 2006
as claimed by the PDEA agents and she was eventually brought to jail on December 11, 2006. She denies that she
could not have texted PO2 Corpuz as she does not have her own cell phone and she and her jusband share just one
cell phone. She surmised that the PDEA agents may have sent the text messages to her daughter's cell phone.

Ghel Dasigan, the daughter of the accused is 15 years old. She testified that Norma Dasigan Domingo is her aunt,
the latter being the sister of his father. On December 6, 2006, she was with her Aunt Norma at their house in
Apugan, Green Valley, Baguio City as she was to go down to Manila with her aunt to buy gifts. At around 9:00
o'clock in the morning of that same day, they left Baguio City arriving in Taguig City at around 4:00 o'clock in the
afternoon of the same day. They spent the night in the house of one Ruben Pasandalan but she does not know
him personally. That night, her Aunt Norma said they would get "shabu" from Ruben. She saw the "shabu"
weighing around 25 grams contained in a plastic sachet. Her aunt placed the "shabu" inside her bag. The
following day, they left Taguig. Upon arriving in Baguio, she did not go home to La Trinidad but spent the night at
her aunt's house. In the morning, her aunt gaver her "shabu" to deliver to a certain Rico at the La Trinidad Trading
Post. She went home first to see her mother but she never told her anything about the "shabu." She then went to
the La Trinidad Trading Post and although she does not know Rico, she knows that he owns a carinderia where
they usually eat. She gave the "shabu" to Rico when suddenly five men who said they were PDEA agents came and
she was arrested. She alone was brought to the PDEA vehicle and although Rico was already in possession of the
"shabu" at that time, he was allowed to go free.

She was brought to their residence but she was left in the van when the PDEA agents went to call for her mother.
Her mother was brought to the van and the PDEA agents were insisting that it was her mother who sent her to
deliver the "shabu". She stated that it was her Aunt Norma who made her deliver the "shabu" and so she was
made to point out her aunt's house. They all went to Apugan, Green Valley, Baguio City and she showed Norma's
house. Norma was then brought to Camp Dangwa but she was released after her daughter-in-law came and gave
money to the PDEA agents but it was not PO2 Corpuz who received the money. [9]
After weighing the evidence, the RTC convicted accused-appellant on both charges, viz.:

In Criminal Case No. 07-CR-6702

WHEREFORE, based on the foregoing premises, the court finds accused Amy Dasigan y Oliva GUILTY beyond
reasonable doubt of the crime of Violation of Section 11, (3), Article II of Republic Act No. 9165 and hereby
sentences her to suffer an indeterminate sentence of TWELVE (12) YEARS and ONE (1) DAY as Minimum to
FOURTEEN (14) YEARS and EIGHT (8) MONTHS as Maximum and to pay a fine in the amount of THREE HUNDRED
THOUSAND PESOS (PHP 300,000.00) and to pay the costs.

Pursuant to Article 29 of the Revised Penal Code, the period of the preventive imprisonment of the accused shall
be credited in the service of her sentence, provided the conditions prescribed in such article have been fully
met.

In Criminal Case No. 07-CR-6703

WHEREFORE, based on the foregoing premises, the court finds accused Amy Dasigan y Oliva GUILTY beyond
reasonable doubt of the crime of Violation of Section 5, Article II of Republic Act No. 9165 and hereby sentences
her to suffer the penalty of LIFE IMPRISONMENT and to pay a fine in the amount of FIVE HUNDRED THOUSAND
PESOS (PHP 500,000.00) and to pay the costs.

Pursuant to Article 29 of the Revised Penal Code, the period of the preventive imprisonment of the accused shall
be credited in the service of her sentence, provided the conditions prescribed in such article have been fully
met.[10]

Accused-appellant appealed before the CA, assigning the following errors:

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT DESPITE THE PROSECUTION'S
FAILURE TO ESTABLISH THE INTEGRITY AND IDENTITY OF THE SEIZED SHABU BEYOND REASONABLE DOUBT.

II

THE TRIAL COURT SERIOUSLY ERRED IN CONVICTING THE ACCUSED-APPELLANT WHEN HER GUILT WAS NOT
PROVEN BEYOND REASONABLE DOUBT. [11]

After a review of the records, the CA affirmed the RTC Decision. The appellate court ruled that the failure of the
arresting officers to fully comply with the required immediate marking and photograph of the seized items under
Section 21 of the Implementing Rules of R.A. No. 9165 is not fatal, [12] and that the testimony of every witness who
handled the evidence provides a reliable assurance that the evidence presented in court is one and the same as
that seized from the accused.[13] The appellate court also ruled that all the elements for a conviction of illegal
possession and illegal sale of dangerous or prohibited drugs were proven, [14] and that accused-appellant's claims of
denial and frame-up were unconvincing.[15] Thus, the CA held:

FOR THE STATED REASONS, the instant appeal is DENIED. The Decision of the RTC dated 7 January 2011 finding
the accused Amy Dasigan y Oliva guilty of violation of Sections (5) and 11 (3) of R.A. 9165 is AFFIRMED. [16]
Accused-appellant is now before the Court, reiterating the arguments she raised before the CA. [17] In particular,
accused-appellant avers that the prosecution miserably failed to preserve the integrity of the seized items as well
as to establish its unbroken chain of custody,[18]as no photographs were taken by the apprehending officers, and
as, although an inventory was conducted, it was seriously flawed because it was not conducted immediately after
the accused-appellant's arrest and was not shown to have been made in the presence of selected public
officials.[19]

The appeal is partly meritorious.

Accused-appellant harps on the supposed failure of the prosecution to prove that the integrity of the seized items
was preserved.

Indeed, as we held in People v. Torres,[20] the identity of the prohibited drug must be proved with moral certainty.
It must also be established with the same degree of certitude that the substance bought or seized during the buy-
bust operation is the same item offered in court as exhibit. In this regard, paragraph 1, Section 21, Article II of R. A.
No. 9165 (the chain of custody rule) provides for safeguards for the protection of the identity and integrity of
dangerous drugs seized, to wit:

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.[21]

However, this Court has, in many cases, held that while the chain of custody should ideally be perfect, in reality it is
not, "as it is almost always impossible to obtain an unbroken chain." The most important factor is the preservation
of the integrity and the evidentiary value of the seized items as they will be used to determine the guilt or
innocence of the accused. Hence, the prosecution's failure to submit in evidence the physical inventory and
photograph of the seized drugs as required under Article 21 of R. A. No. 9165, will not render the accused's arrest
illegal or the items seized from him inadmissible.[22]

The chain of custody is not established solely by compliance with the prescribed physical inventory and
photographing of the seized drugs in the presence of the enumerated persons. The Implementing Rules and
Regulations of R. A. No. 9165 on the handling and disposition of seized dangerous drugs states:

x x x Provided, further, that non-compliance with these requirements under justifiable grounds, as long as the
integrity and 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. [23] (Italics, emphasis, and undecoring
omitted)

In the case at bar, after the items were seized by Police Officer (PO) 2 Arieltino G. Corpuz (PO2 Corpuz) [24] from
accused-appellant, he turned them over to Police Chief Inspector (PCI) Luisito Meris (PCI Meris) [25] who retained
possession until they reached the Philippine Drug Enforcement Agency (PDEA) Office where the arresting officers
were able to mark them (i.e, "CJA for Cabily J. Agbayani; "AGC" for Arieltino G. Corpuz, and "BAV" for Bernado A.
Ventura). PCI Meris then submitted said seized items to Senior Police Officer (SPO) 3 Romeo L. Abordo, Sr. (SPO3
Abordo, Sr.), the Evidence Custodian of PDEA Cordillera Administrative Region (CAR) who, in turn, prepared the
inventory and the request for laboratory examination. It was SPO3 Abordo, Sr. who brought the request for
laboratory examination and the seized items to the PNP Crime Laboratory where they were received by PO1
Joseph Andrew P. Dulnuan who submitted them to Forensic Chemist Police Senior Inspector (PSI) Edward Gayados,
and it was the latter who, after a full qualitative examination, confirmed that the seized items were positive for
methamphetamine hydrochloride, a dangerous drug. In open court, PO2 Corpuz and SPO2 Cabily Agbayani easily
identified the sachets as the ones they seized from accused-appellant as the sachets still bore their initials,
together with the initials of SPO1 Bernardo Ventura.

As to the fact that the seized items were marked only at the police station and not during the actual apprehension
and seizure, in People v. Loks,[26] we held that the marking of the seized substance immediately upon arrival at the
police station qualified as a compliance with the marking requirement. Such can also be said here, especially in
view of the explanation of PCI Meris that the place of arrest had a notorious reputation based on his personal
knowledge as well as on police statistics, and that the arresting officers deemed it best that they leave said place
right after the arrest of the accused-appellant for fear that the latter might have some back-up.[27]

Clearly, there was no hiatus or confusion in the confiscation, handling, custody and examination of the shabu.[28]
The shabu that was seized from accused-appellant, taken to the PDEA Office and thereat duly marked, then taken
to the crime laboratory and subjected to a qualitative examination, and thereafter introduced in evidence against
accused-appellant was the same shabu confiscated from accused-appellant when she was caught in flagrante
delicto possessing the same.

We now come to the issue of whether all the elements of the crimes charged were duly proven.

Under Section 11, Article II of R.A. No. 9165, the elements of the offense of illegal possession of dangerous drugs
are: (1) the accused is in possession of an item or object which is identified to be a prohibited drug; (2) such
possession is not authorized by law; and (3) the accused freely and consciously possessed the said drug. [29]

In Criminal Case No. 07-CR-6702, all these elements were proven. First, the four plastic sachets containing shabu,
which are the subject of the charge for illegal possession of dangerous or prohibited drugs, were found on
accused-appellant's person during the search conducted by the PDEA officers following accused-appellant's
arrest in flagrante delicto for illegal sale of shabu. In People v. Montevirgen,[30] we reiterated the rule that a person
lawfully arrested may be searched for anything which may have been used or constitute proof in the commission
of an offense without warrant. Second, accused-appellant was not able to demonstrate his legal authority to
possess the subject shabu. And third, accused-appellant's act of giving PO2 Corpuz, the poseur-buyer, one sachet
and telling him "maganda ito, first class ito," and then bringing out more sachets and selecting two sachets to give
to PO2 Corpuz[31] indicates that she freely and consciously possessed the subject shabu. Consequently, accused-
appellant was correctly charged and convicted of illegal possession of shabu.

On the other hand, in a successful prosecution for offenses involving the illegal sale of dangerous drugs under
Section 5, Article II of R.A. No. 9165, the following elements must concur: (1) the identities of the buyer and seller,
object, and consideration; and (2) the delivery of the thing sold and the payment for it. What is material is proof
that the transaction or sale actually took place, coupled with the presentation in court of evidence of corpus
delicti.[32]

In Criminal Case No. 07-CR-6703, the Court notes, however, that the sale was not consummated as there was no
receipt of the consideration. Below is the testimony of PO2 Corpuz:

Now let's go back to that time you said that Amy gave you that stuff, you did not give any money, was it
Q-
not?
A- Yes, sir.
Q- In other words you did not prepare any marked money?
A- We prepared, sir.
Q- You prepared?
A- Yes, sir.
Q- But you never handed it to her?
A- Yes, sir.
Q- Why?
During our briefing our team leader told me that if ever the shabu will already be given to you, you just
A- grabbed (sic) the hand and do not give already the money. It might even be lost. She might run away
with it.
Q- How many of you conducted that buy-bust operation against this certain Amy?
A- We are all four, sir.
Q- And you said she was alone at that time?
A- Yes, sir.
But the instruction given to you was there was no need to give the money because it might get lost, is
Q-
that correct?
A- He told me that, whenever the shabu had already been given to you, grab her hand.
Q- I see. So there was no say (sic) because you did not give the money?
Sometimes the transaction happen (sic) when the subject person first can get the money that is the
A- time that we have to give the money but that happened (sic) if she give first the item before she claim
the money, sir.
It did not occur to you that since it is an exchange of you should have given the money before you were
Q-
given the shabu?
A- No longer, sir.
Q- You immediately grabbed her?
A- Yes, sir.
Q- In other words there was no exchange of that marked money and shabu, is that what you are saying?
A- She gave shabu before I grabbed her hand.
Q- Now before you conducted the buy-bust operation you prepared marked money, was it not?
A- Yes, sir.
Q- How did you prepare that?
A- Our team leader get the money to our Regional then he gave me the money.
Q- But you did not hand the money to her?
A- Yes, sir.
Court:
Q- So Amy never touched the money?
A- No, your honor.
Q- It was in your pocket all alone (sic)? Where was the marked money?
A- In my hand, your honor.
Q- What hand?
A- My right hand.
Q- Oh, so you were holding it in a fist?
A- Yes, your honor. And then when she saw the money I returned (sic) back to my pants.
Q- Who had the money?
A- I am (sic), your honor.
Q- No, no, no, you said, so you had the money in your hand?
A- Yes, your honor.
Q- When did you put it back in your pocket?
A- Because alias Amy will show me the shabu so I put the money in my pocket.
Q- So she was going to show the shabu?
A- Yes, your honor.
Q- You show (sic) her the money?
A- Yes, your honor.
Q- But you put back the money in your pocket?
A- Yes, your honor.
Q- And then you show (sic) her the shabu?
A- Yes, your honor. I told her to see first the item if it is good.
Q- So you saw the shabu?
A- Yes, your honor.
Q- Did she touch the shabu or you just looked at it?
A- She touched.
Q- You touched it?
A- She gave it to me, your honor.
Q- She gave the shabu to you?
A- Because I told her that I will see it first if it is good.
Q- And then when she gave it to you what happened?
A- I examined.
Q- And then what happened?
A- When I examined it at that time she was claiming the money.
Q- And then?
A- And then I grabbed already her hand and saying PDEA ako.
Q- So she never got the money?
A- Yes, your honor. [33]
xxxx

In People v. Hong Yeng E and Tsien Tsien Chua,[34] where the marked money was also shown to accused-appellant
but it was not actually given to her as she was immediately arrested when the shabu was handed over to the
poseur-buyer, the Court held that it is material in illegal sale of dangerous drugs that the sale actually took place,
and what consummates the buy-bust transaction is the delivery of the drugs to the poseur-buyer and, in turn, the
seller's receipt of the marked money. While the parties may have agreed on the selling price of the shabu and
delivery of payment was intended, these do not prove consummated sale. Receipt of the marked money, whether
done before delivery of the drugs or after, is required.

In the case at bar, although accused-appellant was shown the consideration before she handed over the
subject shabu to the poseur-buyer, such is not sufficient to consummate the sale. As previously held by the Court,
looking at a thing does not transfer possession of it to the beholder. Such a tenet would make window shoppers
liable for theft.[35]

Accused-appellant's exoneration from the charge of illegal sale of dangerous or prohibited drugs, however, does
not spell freedom from all criminal liability as she may still be convicted for illegal possession of dangerous or
prohibited drugs. It is settled that possession is necessarily included in the sale of dangerous or prohibited
drugs.[36]

Accused-appellant was correctly convicted in Criminal Case No. 07-CR-6702 for illegal possession of dangerous or
prohibited drugs in the total weight of 0.28 gram (the four sachets weighing 0.06 gram, 0.07 gram, 0.07 gram, and
0.08 gram, respectively).[37] In Criminal Case No. 07-CR-6703, on the other hand, although illegal sale of dangerous
or prohibited drugs was not proven, accused-appellant is certainly criminally liable for illegal possession of
dangerous or prohibited drugs in the total weight of 0.15 gram.[38] A summation of the weights will yield a total of
0.43 gram, and under Sec. 11 (3), Art. II, of R.A. No. 9165, possession of less than five grams of shabu is penalized
with imprisonment of twelve (12) years and one (1) day to twenty (20) years plus a fine ranging from P300,000.00
to P400,000.00.

Applying the Indeterminate Sentence Law, the accused shall be sentenced to an indeterminate sentence, the
maximum term of which shall not exceed the maximum fixed by law and the minimum term shall not be less than
the minimum prescribed by the same. [39] Thus, the penalty originally imposed by the RTC of imprisonment of
twelve (12) years and one (1) day, as minimum, to fourteen (14) years and eight (8) months, as maximum, and a
fine of Three Hundred Thousand Pesos (P300,000.00), for illegal possession of shabu in the total weight of 0.28
gram is still proper for illegal possession of shabu in the total weight of 0.43 gram, it being less than five grams.

WHEREFORE, premises considered, the assailed Decision dated 23 July 2012 of the Court of Appeals in CA-G.R. CR-
H.C. No. 04845 is hereby MODIFIED. The Court finds Amy Dasigan y Oliva guilty of illegal possession of dangerous
or prohibited drugs under Section 11, Article II of Republic Act No. 9165, and accordingly IMPOSES, in accordance
with the Indeterminate Sentence Law, imprisonment for twelve (12) years and one (1) day, as minimum, and
fourteen (14) years and eight (8) months, as maximum, and ORDERS her to pay a fine of P300,000.00.

SO ORDERED.

FIRST DIVISION

[ G.R. No. 196966, October 23, 2013 ]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. MICHAEL MAONGCO Y YUMONDA AND PHANS BANDALI Y
SIMPAL, ACCUSED-APPELLANTS.

DECISION

LEONARDO-DE CASTRO, J.:

On appeal is the Decision[1] dated September 6, 2010 of the Court of Appeals in CA-G.R. CR.-H.C. No. 03505, which
affirmed in toto the Decision[2] dated June 11, 2008 of the Regional Trial Court (RTC), Branch 82, Quezon City, in
Criminal Case Nos. Q-04-127731-32, finding accused-appellants Michael Y. Maongco (Maongco) and Phans S.
Bandali (Bandali) guilty beyond reasonable doubt of violating Article II, Section 5 of Republic Act No. 9165,
otherwise known as the Dangerous Drugs Act of 2002.

Accused-appellants were separately charged for illegally dispensing, delivering, transporting, distributing, or acting
as brokers of dangerous drugs under the following amended Informations:

[Criminal Case No. Q-04-127731]

The undersigned accuses MICHAEL MAONGCO y YUMONDA for Violation of Section 5, Article II, R.A. 9165
(Comprehensive Dangerous Drugs Act of 2002), committed as follows:

That on or about the 19th day of June, 2004 in Quezon City, Philippines, the said accused, not being authorized by
law to sell, dispense, deliver, transport or distribute any dangerous drug, did, then and there wilfully and
unlawfully dispense, deliver, transport, distribute or act as broker in the said transaction, four point fifty (4.50)
grams of Methylamphetamine hydrochloride, a dangerous drug.[3]

[Criminal Case No. Q-04-127732]

The undersigned accuses PHANS BANDALI y SIMPAL for Violation of Section 5, Article II, R.A. 9165 (Comprehensive
Dangerous Drugs Act of 2002), committed as follows:

That on or about the 19th day of June, 2004 in Quezon City, Philippines, the said accused, not being authorized by
law to sell, dispense, deliver, transport or distribute any dangerous drug, did, then and there wilfully and
unlawfully dispense, deliver, transport, distribute or act as broker in the said transaction, four point forty[-]five
(4.45) grams of Methylamphetamine hydrochloride, a dangerous drug.[4]

When arraigned on September 13, 2004, both accused-appellants pleaded not guilty.[5]

During trial, the prosecution presented the testimonies of Police Officer (PO) 1 Dominador Arugay (Arugay) [6] and
PO2 Vener Ong (Ong),[7] who arrested accused-appellants. The testimonies of Police Inspector (P/Insp.) Erickson
Calabocal (Calabocal),[8] the forensic chemist, and Senior Police Officer (SPO) 1 Adonis Sugui (Sugui), [9] the post
investigating officer, were dispensed with after the defense agreed to a stipulation of the substance of the two
witnesses' testimonies, but with the qualification that said witnesses had no personal knowledge of the
circumstances surrounding accused-appellants' arrest and the source of the plastic sachets of shabu.

The object and documentary evidence of the prosecution, all admitted by the RTC, [10] consisted of the Request for
Laboratory Examination;[11] an Improvised Envelope containing the plastic sachets of suspected methamphetamine
hydrochloride, more popularly known as shabu;[12] P/Insp. Calabocal's Chemistry Report No. D-360-04;[13] P/Insp.
Calabocal's Certification[14] stating that the contents of the plastic sachets tested positive for methamphetamine
hydrochloride; PO1 Arugay's Sinumpaang Salaysay;[15] PO2 Ong's Sinumpaang Salaysay;[16] and the Referral of the
case to the Prosecutor's Office of Quezon City.[17]

The prosecution's evidence presented the following version of the events leading to accused-appellants' arrests.

Based on a tip from a confidential informant, the Station Anti-Illegal Drugs of the Navotas City Police conducted a
special operation on June 18, 2004, which resulted in the arrest of a certain Alvin Carpio (Carpio) for illegal
possession of dangerous drugs and seizure from Carpio's possession of 15 heat-sealed plastic sachets
containing shabu. When questioned by the police, Carpio admitted that the shabucame from accused-appellant
Maongco. Consequently, the police planned an operation to apprehend accused-appellant Maongco and formed a
team for this purpose, composed of PO1 Arugay, PO2 Ong, PO2 Geoffrey Huertas (Huertas), and PO1 Jesus del
Fierro (Del Fierro).

On June 19, 2004, after coordination with the Philippine Drug Enforcement Agency (PDEA), the police team was
briefed about the operation. The police team allowed Carpio to talk to accused-appellant Maongco on the
cellphone to arrange for a sale transaction ofshabu. At around 10:30 in the morning, the police team,
accompanied and guided by Carpio, proceeded to the vicinity of Quezon corner Roces Avenues in Quezon City
frequented by accused-appellant Maongco. PO1 Arugay, PO2 Ong, and Carpio rode a taxi, while PO1 Del Fierro
and PO2 Huertas followed in an owner-type jeep. Carpio spotted accused-appellant Maongco at a waiting shed
and pointed out the latter to the police. PO2 Arugay alighted from the taxi and approached accused-appellant
Maongco. PO2 Arugay introduced himself to accused-appellant Maongco as Carpio's cousin, and claimed that
Carpio was sick and could not be there personally. PO2 Arugay then asked from accused-appellant Maongco for
Carpio's order of "dalawang bulto." Accused-appellant Maongco drew out from his pocket a sachet of shabu and
showed it to PO2 Arugay. When PO2 Arugay got hold of the sachet of shabu, he immediately revealed that he was
a police officer, arrested accused-appellant Maongco, and apprised the latter of his constitutional rights.

When the police team questioned accused-appellant Maongco as to the other "bulto" of shabu Carpio had
ordered, accussed-appellant disclosed that the same was in the possession of accused-appellant Bandali, who was
then at Jollibee Pantranco branch along Quezon Avenue. The police team, with Carpio and accused-appellant
Maongco, went to the said restaurant where accused-appellant Maongco identified accused-appellant Bandali to
the police team as the one wearing a blue shirt. PO2 Ong approached accused-appellant Bandali and demanded
from the latter the other half of the drugs ordered. Accused-appellant Bandali voluntarily handed over a sachet of
shabu to PO2 Ong. Thereafter, PO2 Ong apprised accused-appellant Bandali of his constitutional rights and
arrested him.

The police team first brought accused-appellants to the East Avenue Medical Center for medical examination to
prove that accused-appellants sustained no physical injuries during their apprehension. Afterwards, the police
team brought accused-appellants to the police station in Navotas City. At the police station, PO1 Arugay marked
the sachet of shabu from accused-appellant Maongco with the initials "MMY," while PO2 Ong marked the sachet
of shabu from accused-appellant Bandali with the initials "PBS." PO1 Arugay and PO2 Ong turned over the two
sachets of shabu to the custody of PO1 Del Fierro and SPO1 Sugui. The sachets of shabu were then inventoried,
photographed in the presence of accused-appellants, and submitted for laboratory examination.

P/Insp. Calabocal received the sachets of shabu for chemical analysis. P/Insp. Calabocal's examination revealed
that the contents of the sachets marked "MMY" and "PBS" weighed 4.50 grams and 4.45 grams, respectively, and
both tested positive for methamphetamine hydrochloride.

When the defense's turn to present evidence came, the accused-appellants took the witness stand.[18] Accused-
appellants asserted that they did not know each other prior to their arrests and they were illegally arrested,
extorted for money, physically beaten, and framed-up by the police.

On June 11, 2008, the RTC promulgated its Decision finding accused-appellants guilty beyond reasonable doubt of
illegally selling shabu,penalized under Article II, Section 5 of Republic Act No. 9165, to wit:

WHEREFORE, premises considered, judgment is hereby rendered finding accused MICHAEL MAONGCO y
YUMONDA, accused in Ciminal Case No. Q-04-127731 and PHANS BANDALI y SIMPAL, accused in Ciminal Case No.
Q-04-127732, both guilty beyond reasonable doubt of violations of Section 5, Article II of R.A. No. 9165.
Accordingly, they are hereby sentenced to suffer the penalty of LIFE IMPRISONMENT and each to pay a fine in the
amount of Five Hundred Thousand (P500,000.00) Pesos.[19]

Accused-appellants appealed to the Court of Appeals. In their Brief,[20] accused-appellants imputed the following
errors on the part of the RTC:

THE TRIAL COURT GRAVELY ERRED IN GIVING FULL WEIGHT AND CREDENCE TO THE PROSECUTION'S EVIDENCE
NOTWITHSTANDING ITS FAILURE TO PROVE THE IDENTITY AND INTEGRITY OF THE SHABU ALLEGEDLY SEIZED.

II

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT[S] DESPITE THE FAILURE TO COMPLY
WITH THE "OBJECTIVE TEST" IN BUY-BUST OPERATIONS.

III

THE TRIAL COURT ERRED IN UPHOLDING THE PRESUMPTION OF REGULARITY IN THE PERFORMANCE OF OFFICIAL
DUTY BY THE POLICE OFFICERS DESPITE THE PATENT IRREGULARITIES IN THE BUY-BUST OPERATION.

IV

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT[S] DESPITE THE PROSECUTION'S
FAILURE TO PROVE THEIR GUILT BEYOND REASONABLE DOUBT.[21]

Plaintiff-appellee countered in its Brief[22] that:

 I.

THE COURT A QUO PROPERLY ADMITTED THE SHABU IN EVIDENCE.

II.

THERE WAS A LEGITIMATE "BUY-BUST" OPERATION IN THE CASE AT BAR WHICH RESULTED IN THE LAWFUL
ARREST, PROSECUTION AND CONVICTION OF APPELLANTS.

III.

THE COURT A QUO PROPERLY FOUND APPELLANTS GUILTY BEYOND REASONABLE DOUBT OF THE CRIMES
CHARGED.[23]

In its Decision dated September 6, 2010, the Court of Appeals found no palpable error in the judgment of
conviction rendered by the RTC against accused-appellants and rejected accused-appellants' argument that the
prosecution failed to establish the factual details constituting the essential elements of an illegal sale of dangerous
drugs. According to the appellate court, Article II, Section 5 of Republic Act No. 9165 penalizes not only those who
sell dangerous drugs, but also those who "trade, administer, dispense, deliver, give away to another, distribute,
dispatch in transit or transport any dangerous drug," without being authorized by law. In this case, the
prosecution was able to prove with moral certainty that accused-appellants were caught in the act of illegally
delivering, giving away to another, or distributing sachets of shabu. In the end, the Court of Appeals decreed:

WHEREFORE, premises considered, the instant appeal is DENIED. The assailed decision of the Regional Trial Court
of Quezon City, Branch 82 dated June 11, 2008 convicting appellants for violation of Section 5, Article II of Republic
Act No. 9165 is hereby AFFIRMED. No costs.[24]

Hence, this appeal.

Since accused-appellants had opted not to file any supplemental briefs, the Court considers the same issues and
arguments raised by accused-appellants before the Court of Appeals.

Accused-appellants stress that for a judgment of conviction for the illegal sale of dangerous drugs, the identities of
the buyer and seller, the delivery of the drugs, and the payment in consideration thereof, must all be duly proven.
However, accused-appellants lament that in their case, the prosecution failed to establish by evidence these
essential elements of the alleged sale of shabu. Accused-appellants add that the prosecution was also unable to
show that the integrity and evidentiary value of the seized shabu had been preserved in accordance with Section
21(a) of the Implementing Rules of Republic Act No. 9165. Accused-appellants point out that PO1 Arugay did not
mention the time and place of the marking of the sachet of shabu purportedly sold to him by accused-appellant
Maongco; while PO2 Ong admitted that he marked the sachet of shabu he received from accused-appellant
Bandali only at the police station. Both PO1 Arugay and PO2 Ong merely provided an obscure account of the
marking of the sachets of shabu, falling short of the statutory requirement that the marking of the seized drugs be
made immediately after seizure and confiscation.

The appeal is partly meritorious.

In the case of accused-appellant Maongco, the Court finds that the RTC and the Court of Appeals both erred in
convicting him in Criminal Case No. Q-04-127731 for the illegal sale of shabu under Article II, Section 5 of Republic
Act No. 9165. The evidence on record does not support accused-appellant Maongco's conviction for said crime,
especially considering the following answers of prosecution witness PO1 Arugay during the latter's cross-
examination, practically admitting the lack of consideration/payment for the sachet of shabu:

Q. What did you tell Michael Maongco?

A. I introduced myself as the cousin of Alvin, sir.
Q. After that, you immediately arrested him?
A. Yes, sir. I first asked my order [of] shabu.
Q. In your affidavit, you testified that you asked one "bulto" of shabu?
A. More or less five grams of shabu, sir.
Q. Did the accused ask any in exchange of that shabu?
A. No, sir.
Q. Immediately, you arrested him already?
A. After I got my order from him, I introduced myself as policeman, sir.
COURT:
Who gave you that one "bulto" of shabu?
A. I have the money but he did not ask it from me, your Honor.
Q. Was there any arrangement between you and Maongco as to how much this one "bulto" cost?
A. Alvin and Maongco were the ones who talked.
xxxx
Q. Meaning to say, it was Maongco and Alvin who talked in Quezon Avenue?
A. They talked over the cellphone.
xxxx
Q. But you did not hear the conversation?
A. No, sir.[25] (Emphases supplied.)

Inarguably, consideration/payment is one of the essential elements of illegal sale of dangerous drugs, without
which, accused-appellant Maongco's conviction for said crime cannot stand.

Nonetheless, accused-appellant Maongco is still not absolved of criminal liability.

A review of the Information in Criminal Case No. Q-04-127731 readily reveals that accused-appellant Maongco was
not actually charged with illegal sale of shabu. Said Information specifically alleged that accused-appellant
Maongco "willfully and unlawfully dispense[d], deliver[ed], transport[ed], distribute[d] or act[ed] as broker" in the
transaction involving 4.50 grams of shabu. These acts are likewise punishable under Article II, Section 5 of
Republic Act No. 9165.

Article II, Section 5 of Republic Act No. 9165 provides:

SECTION 5. Sale, Trading, Administration, Dispensation, Delivery, Distribution and Transportation of Dangerous
Drugs and/or Controlled Precursors and Essential Chemicals. 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 sell, trade, administer, dispense, deliver, give away to
another, distribute, dispatch in transit or transportany dangerous drug, including any and all species of opium
poppy regardless of the quantity and purity involved, or shall act as a broker in any of such transactions. (Emphasis
supplied.)

Several of the acts enumerated in the foregoing provision have been explicitly defined under Article I, Section 3 of
the same statute, viz:
Section 3. Definitions. As used in this Act, the following terms shall mean:

(a) Administer. Any act of introducing any dangerous drug into the body of any person, with or without his/her
knowledge, by injection, inhalation, ingestion or other means, or of committing any act of indispensable assistance
to a person in administering a dangerous drug to himself/herself unless administered by a duly licensed
practitioner for purposes of medication.

xxxx

(k) Deliver. Any act of knowingly passing a dangerous drug to another, personally or otherwise, and by any
means, with or without consideration.

xxxx

(m) Dispense. Any act of giving away, selling or distributing medicine or any dangerous drug with or without the
use of prescription.

xxxx

(ii) Sell. Any act of giving away any dangerous drug and/or controlled precursor and essential chemical whether for
money or any other consideration.

(jj) Trading. Transactions involving the illegal trafficking of dangerous drugs and/or controlled precursors and
essential chemicals using electronic devices such as, but not limited to, text messages, e-mail, mobile or landlines,
two-way radios, internet, instant messengers and chat rooms or acting as a broker in any of such transactions
whether for money or any other consideration in violation of this Act. (Emphasis supplied.)

As for the illegal delivery of dangerous drugs, it must be proven that (1) the accused passed on possession of a
dangerous drug to another, personally or otherwise, and by any means; (2) such delivery is not authorized by law;
and (3) the accused knowingly made the delivery. Worthy of note is that the delivery may be committed even
without consideration.

It is not disputed that accused-appellant Maongco, who was working as a taxi driver at the time of his
arrest,[26] had no authority under the law to deliver any dangerous drug. The existence of the two other elements
was established by PO1 Arugay's testimony that provided the following details:

FISCAL ANTERO:
Q. Why did you arrest this certain Alvin?
A. For violation of R.A. 9165, sir.
Q. What happened when you arrested this alias Alvin?
A. We investigated on where the shabu he was selling came from.
Q. What was the result of your inquiry as to the source of the shabu?
A. We learned that the source came from a certain Michael, sir.
Q. When you found out that the source came from a certain Michael, what did you do, Mr. Witness?
A. We formed a team and we made a Pre-Operation Report, sir.
Q. Aside from mentioning about the source as Michael, what are the other details?
No more, sir. On June 19, 2004 at about 10:30 a.m., our group was dispatched in Quezon [Avenue]
A.
corner Roces Avenue.
xxxx
Q. What happened when you arrived in that area?
A. We went to the place where Michael is always staying and when he arrived he was pointed by Alvin, sir.
Q. What did you do when Alvin pointed to Michael?
A. I pretended to be the cousin of Alvin who was going to get the order.
Q. What happened when you approached this Michael?
I asked from him my order of "dalawang bulto" and he asked me who am I and I told him that I am the
A.
cousin of Alvin and that Alvin cannot come because he was sick, sir.
Q. What happened after you said that?
I asked from him my order and then he took something out from his pocket and he showed it to me. It
A.
was a shabu, sir.
Q. What happened next?
A. After I got the order we arrested Michael, sir.
xxxx
ATTY. BARTOLOME:
Q. What was Maongco doing at that time?
A. He was staying in a waiting shed along Quezon Avenue, sir.
Q. What was he doing there?
A. He was waiting for somebody, sir.
Q. Immediately you approached Maongco?
A. He was pointed by Alvin, sir. I alighted from the taxi.
Q. What was his reaction when you approached him?
A. He was a bit surprise[d], sir.
Q. What did you tell Michael Maongco?
A. I introduced myself as the cousin of Alvin, sir.
Q. After that, you immediately arrested him?
A. Yes, sir. I first asked my order my shabu.
Q. In your Affidavit, you testified that you asked one "bulto" of shabu?
A. More or less five grams of shabu, sir.[27] (Emphases supplied.)

There was a prior arrangement between Carpio and accused-appellant Maongco. When PO1 Arugay appeared for
his purportedly indisposed cousin, Carpio, and asked for his order of shabu, accused-appellant Maongco
immediately understood what PO1 Arugay meant. Accused-appellant Maongco took out a sachet of shabu from
his pocket and handed over possession of said sachet to PO1 Arugay.

Based on the charges against accused-appellant Maongco and the evidence presented by the prosecution,
accused-appellant Maongco is guilty beyond reasonable doubt of illegal delivery of shabu under Article II, Section
5 of Republic Act No. 9165.

For the same reasons cited in the preceding paragraphs, the RTC and the Court of Appeals also erred in convicting
accused-appellant Bandali for the crime of illegal sale of shabu in Criminal Case No. Q-04-127732.

The Information against accused-appellant Bandali, same as that against accused-appellant Maongco, charged him
with "willfully and unlawfully dispens[ing], deliver[ing], transport[ing], distribut[ing] or act[ing] as broker" in the
transaction involving 4.45 grams of shabu. However, unlike accused-appellant Maongco, accused-appellant
Bandali cannot be convicted for illegal delivery of shabu under Article II, Section 5 of Republic Act No. 9165, given
that the circumstances surrounding the arrest of the latter were radically different from those of the former.

PO2 Ong testified:

Q. How did this Arugay arrest this Michael?

A. I was only a back-up of Arugay, sir.
Q. What did you see, if any?
A. I saw that he recovered one (1) heat-sealed transparent plastic sachet, sir.
Q. He recovered it from whom?
A. From Michael Maongco, sir.
 xxxx
Q. What happened when this man was arrested by Arugay?
We looked for the other "bulto" because according to Michael there were two and it was in the
A.
possession of Phans, sir.
THE COURT:
Q. Where did you look for him?
A. At Jollibee, Pantranco, your Honor.
xxxx
Q. Did you find him in Jollibee?
A. Yes, your Honor, because according to Michael Maongco he was wearing blue T-shirt.
Q. What did you do when you found him at Jollibee?
A. I went near him and asked him to put out the other shabu in his possession, your Honor.
Q. You yourself?
A. My companions were just there, your Honor.
Q. You yourself approached him?
A. Yes, your Honor.
Q. When you demanded the production of what?
A. One (1) bulto of shabu, your Honor.
PROS. ANTERO:
Q. Why do you know that he was Bandali?
A. Because Michael Maongco was pointing to him that he was Phans Bandali, sir.
Q. Was Michael with you when you went to that Jollibee?
A. Yes, sir.
Q. What happened when you demanded from Bandali this shabu?
A. He voluntarily put out the shabu, sir.
Q. What happened next, Mr. Witness?
A. I told him of his violation and his rights, sir.[28]

PO2 Ong further confirmed during his cross-examination:

Now, Mr. Witness, you mentioned a while ago that you arrested Phans Bandali inside Jollibee,
Q.
Pantranco. Is that correct?
A. Yes, sir.
Q. And you did not buy from him a shabu, Mr. Witness?
A. No, sir.
Q. You just demanded from him a plastic sachet?
A. Yes, sir.[29] (Emphases supplied.)

In accused-appellant Bandali's case, it cannot be said that he knowingly passed on the sachet of shabu in his
possession to PO2 Ong. PO2 Ong approached accused-appellant Bandali as a police officer, absent any pretense,
and demanded that the latter bring out the other sachet of shabu. Accused-appellant Bandali's voluntary
production of the sachet of shabu in his possession was in subservience to PO2 Ong's authority. PO2 Ong then
acquired the sachet of shabu from accused-appellant Bandali by seizure, not by delivery. Even if there may be
doubt as to whether or not accused-appellant Bandali was actually aware at that moment that PO2 Ong was a
police officer, the ambiguity would still be resolved in accused-appellant Bandali's favor.

This does not mean though that accused-appellant Bandali goes scot-free. The evidence for the prosecution did
establish that accused-appellant Bandali committed illegal possession of dangerous drugs, penalized under Article
II, Section 11 of Republic Act No. 9165.

For the prosecution of illegal possession of dangerous drugs to prosper, the following essential elements must be
proven, namely: (1) the accused is in possession of an item or object that is identified to be a prohibited drug; (2)
such possession is not authorized by law; and (3) the accused freely and consciously possess the said drug.[30]
Accused-appellant Maongco informed the police officers that the other sachet of shabu was in the possession of
accused-appellant Bandali. Accused-appellant Bandali herein was in possession of the sachet of shabu as he was
sitting at Jollibee Pantranco branch and was approached by PO2 Ong. Hence, accused-appellant Bandali was able
to immediately produce and surrender the said sachet upon demand by PO2 Ong. Accused-appellant Bandali,
admittedly jobless at the time of his arrest,[31] did not have any authority to possess shabu. And as to the last
element, the rule is settled that possession of dangerous drugs constitutes prima facie evidence of knowledge
or animus possidendi, which is sufficient to convict an accused in the absence of a satisfactory explanation of such
possession.[32]

But can accused-appellant Bandali be convicted for illegal possession of dangerous drugs under Article II, Section
11 of Republic Act No. 9165 when he was charged with illegal dispensation, delivery, transportation, distribution or
acting as broker of dangerous drugs under Article II, Section 5 of the same statute? The Court answers in the
affirmative.

Rule 120, Section 4 of the Rules of Court governs situations where there is a variance between the crime charged
and the crime proved, to wit:

Sec. 4. Judgment in case of variance between allegation and proof. When there is variance between the offense
charged in the complaint or information and that proved, and the offense as charged is included in or necessarily
includes the offense proved, the accused shall be convicted of the offense proved which is included in the offense
charged, or of the offense charged which is included in the offense proved.

Well-settled in jurisprudence that the crime of illegal sale of dangerous drugs necessarily includes the crime of
illegal possession of dangerous drugs.[33] The same ruling may also be applied to the other acts penalized under
Article II, Section 5 of Republic Act No. 9165 because for the accused to be able to trade, administer, dispense,
deliver, give away to another, distribute, dispatch in transit, or transport any dangerous drug, he must necessarily
be in possession of said drugs.

At the outset of the trial, both parties had admitted the laboratory results showing that the contents of the two
sachets tested positive for shabu, although accused-appellants contest the identity and integrity of the sachets and
contents actually tested since the chain of custody of the same was not satisfactorily established in accordance
with Republic Act No. 9165 and its implementing rules.

The Court disagrees with accused-appellants as the police officers had substantially complied with the chain of
custody rule under Section 21(a) of the Implementing Rules of Republic Act No. 9165. The Court had previously
held that in dangerous drugs cases, the failure of the police officers to make a physical inventory, to photograph,
and to mark the seized drugs at the place of arrest do not render said drugs inadmissible in evidence or
automatically impair the integrity of the chain of custody of the same. [34] The Court had further clarified, in
relation to the requirement of marking the drugs "immediately after seizure and confiscation," that the marking
may be undertaken at the police station rather than at the place of arrest for as long as it is done in the presence
of the accused and that what is of utmost importance is the preservation of its integrity and evidentiary value. [35]

The Court finds no fault on the part of both the RTC and the Court of Appeals in giving more weight and credence
to the testimonies of the police officers vis-à-vis those of the accused-appellants. Questions as to the credibility of
witnesses are matters best left to the appreciation of the trial court because of its unique opportunity of having
observed that elusive and incommunicable evidence of the witnesses' deportment on the stand while testifying,
which opportunity is denied to the reviewing tribunal. [36]

Moreover, accused-appellants' uncorroborated defenses of denial and claims of frame-up cannot prevail over the
positive testimonies of the prosecution witnesses, coupled with the presentation in court of the corpus delicti. The
testimonies of police officers who caught the accused-appellants in flagrante delicto are usually credited with
more weight and credence, in the absence of evidence that they have been inspired by an improper or ill motive,
than the defenses of denial and frame-up of an accused which have been invariably viewed with disfavor for it can
easily be concocted. In order to prosper, the defenses of denial and frame-up must be proved with strong and
convincing evidence,[37] which accused-appellants failed to present in this case.

Lastly, the Court determines the proper penalties to be imposed upon accused-appellants.

Under Article II, Section 5 of Republic Act No. 9165, the penalties for the illegal delivery of dangerous drugs,
regardless of the quantity thereof, shall be life imprisonment to death and a fine ranging from Five Hundred
Thousand Pesos (P500,000.00) to Ten Million Pesos (P10,000,000.00). Hence, accused-appellant Maongco, for his
illegal delivery of shabu in Criminal Case No. Q-04-127731, is sentenced to life imprisonment and ordered to pay a
fine of Five Hundred Thousand Pesos (P500,000.00).

Article II, Section 11 of Republic Act No. 9165 prescribes the penalty, for possession of less than five grams of
dangerous drugs, of imprisonment of twelve (12) years and one (1) day to twenty (20) years, plus a fine ranging
from Three Hundred Thousand Pesos (P300,000.00) to Four Hundred Thousand Pesos (P400,000.00). Applying the
Indeterminate Sentence Law, the maximum term shall not exceed the maximum fixed by law and the minimum
shall not be less than the minimum term as prescribed by the same law. Resultantly, accused-appellant Bandali,
for his illegal possession of 4.45 grams of shabu in Criminal Case No. Q-04-127732, is sentenced to imprisonment
of twelve (12) years and one (1) day, as the minimum term, to twenty (20) years, as the maximum term, and
ordered to pay a fine of Four Hundred Thousand Pesos (P400,000.00).

WHEREFORE, the appealed Decision is AFFIRMED with MODIFICATIONS, to read as follows:

1. In Criminal Case No. Q-04-127731, accused-appellant MICHAEL YUMONDA MAONGCO is found GUILTY beyond
reasonable doubt of illegal delivery of shabu penalized under Article II, Section 5 of Republic Act No. 9165, and is
sentenced to LIFE IMPRISONMENT and ordered to pay a FINE of Five Hundred Thousand Pesos (P500,000.00); and

2. In Criminal Case No. Q-04-127732, accused-appellant PHANS SIMPAL BANDALI is found GUILTY beyond
reasonable doubt of illegal possession of shabu with a net weight of 4.45 grams, penalized under Article II, Section
11 of Republic Act No. 9165, and is sentenced to suffer the penalty of IMPRISONMENT of twelve (12) years and
one (1) day, as the minimum term, to twenty (20) years, as the maximum term, and ordered to pay a FINE of Four
Hundred Thousand Pesos (P400,000.00).

SO ORDERED.

SECOND DIVISION

February 10, 2016

G.R. No. 174481

THE PEOPLE OF THE PHLIPPINES, Plaintiff-Appellee,

vs.
CRISTY DIMAANO y TIPDAS, Accused-Appellant.

DECISION

LEONEN, J.:
Human memory is not infallible. Inconsistencies in the testimonies of prosecution witnesses in cases involving
violations of the Comprehensive Dangerous Drugs Act may be excused so long as the identity of the dangerous
drugs is proved beyond reasonable doubt and the chain of custody is established with moral certainty.

This is an appeal1 of the Court of Appeals Decision2 dated May 30, 2006 affirming the conviction of accused-
appellant Cristy Dimaano y Tipdas (Dimaano) of the crime of attempted transportation of dangerous drugs
punished under the Comprehensive Dangerous Drugs Act of 2002. 3 Dimaano was sentenced to suffer the penalty
of life imprisonment and was ordered to pay a fine of ₱500,000.00.

In the Information4 dated November 14, 2002, the Office of the City Prosecutor of Pasay City charged Dimaano
with violating Section 55 in relation to Section 266 of the Comprehensive Dangerous Drugs Act of 2002. The
accusatory portion of the Information reads:

That on or about the 13th day of November, 2002 at the Manila Domestic Airport Terminal 1, in Pasay City, Metro
Manila, Philippines and within the jurisdiction of this Honorable court, the above-named accused, being then a
departing passenger for Cebu, without authority of law, did then and there wilfully, unlawfully and feloniously
have in her possession and attempt to transport 13.96 grams of Methyllamphetamine [sic] Hydrochloride (shabu),
a dangerous drug.

Contrary to law.7

Dimaano was arraigned on November 25, 2002, pleading not guilty to the charge. 8 Trial then ensued.

On November 13, 2002, Non-Uniformed Personnel Florence S. Bilugot (NUP Bilugot) was detailed as frisker at the
initial check-in departure area of the Manila Domestic Airport Terminal 1.9 At around 3:45 a.m., a woman arrived,
placed her luggage at the x-ray machine, and passed through the walk-through metal detector.10 The woman was
then frisked by NUP Bilugot.11

NUP Bilugot felt a hard object bulging near the woman’s buttocks. 12 Asked what the object was, the woman
replied that it was a sanitary napkin, explaining that she was having her monthly period. 13 Suspicious, NUP Bilugot
requested the woman to accompany her to the ladies’ room.14 NUP Bilugot informed Senior Police Officer 2
Reynato Ragadio (SPO2 Ragadio), who was likewise detailed at the initial check-in area, of the hard object she felt
on the woman’s body.15 SPO2 Ragadio then accompanied the woman and NUP Bilugot.16 The woman and NUP
Bilugot proceeded to the ladies’ restroom while SPO2 Ragadio waited outside. 17

NUP Bilugot then asked the woman to remove her panties.18 On the panties’ crotch was a panty shield on top of a
sanitary napkin, but under all of these was a plastic sachet.19 Seeing a white crystalline substance similar to
"tawas," NUP Bilugot asked the woman what the plastic sachet contained. 20 The woman allegedly replied that it
was "shabu."21 NUP Bilugot asked the woman further as to who owned the shabu, but the woman answered that
she was just asked to bring it.22 NUP Bilugot then seized the plastic sachet and, together with the woman, went out
of the ladies’ room.23 NUP Bilugot turned over the plastic sachet to SPO2 Ragadio. 24

SPO2 Ragadio recalled receiving from NUP Bilugot two (2) transparent plastic sachets, which NUP Bilugot placed
inside a plastic bag.25 He then requested the woman for her airline ticket, revealing the woman’s name to be
"Cristy Dimaano."26 Together with NUP Bilugot, SPO2 Ragadio brought Dimaano to the Intelligence and
Investigation Office of the Philippine Center for Aviation and Security, 2nd Regional Aviation Security
Office.27 According to SPO2 Ragadio, he and NUP Bilugot wrote their respective initials, "RBR" and "FSB," on the
two sachets.28 NUP Bilugot then returned to her post at the initial check-in area.29

Investigators detailed at the Philippine Center for Aviation and Security examined the contents of the two (2)
plastic sachets.30 One sachet contained three (3) smaller sachets while the other contained four (4). 31 Thirty
minutes later, three investigators from the Philippine Drug Enforcement Agency arrived to collect the specimen
and placed their initials on the two plastic sachets.32 They then brought Dimaano to the Philippine Drug
Enforcement Agency office at the Ninoy Aquino International Airport. 33

At around 2:30 p.m., SPO2 Ragadio received a phone call from the PDEA investigators, requesting him to go to the
Philippine Drug Enforcement Agency office. 34 There, he and NUP Bilugot were informed that the specimen
obtained from Dimaano tested positive for methamphetamine hydrochloride, or shabu. 35 He then executed his
affidavit while NUP Bilugot executed an affidavit of arrest.36

That the sachets contained methamphetamine hydrochloride was corroborated by Police Inspector Abraham B.
Tecson (Police Inspector Tecson), a Forensic Chemist at the Philippine National Police Crime Laboratory at Camp
Crame, Quezon City.37 In his Physical Science Report, Police Inspector Tecson stated that he was the officer on duty
at the chemistry department of the Philippine National Police Crime Laboratory when he received a request for
examination at around 2:20 p.m. of November 13, 2002. 38 He received from Police Chief Inspector Roseller Fabian
two plastic sachets marked with "FSB," "RDR," and "RSA."39

Police Inspector Tecson reported that one of the sachets contained three (3) heat-sealed plastic sachets, while the
other contained four (4).40 After subjecting the contents of the sachets to chemical analysis, Police Inspector
Tecson confirmed that the sachets contained a total of 13.96 grams 41 of methamphetamine hydrochloride.42

Waiving her right to testify in court, Dimaano instead filed a memorandum and argued that the prosecution failed
to establish her guilt beyond reasonable doubt.43 She specifically alluded to the conflicting testimonies of NUP
Bilugot and SPO2 Ragadio as to the number of sachets allegedly obtained from her person.

NUP Bilugot testified in court that she obtained from Dimaano only one (1) plastic sachet. On the other hand, SPO2
Ragadio recalled receiving two (2) plastic sachets from NUP Bilugot. This discrepancy, according to Dimaano, casts
doubt as to the identity of the specimen allegedly obtained from her. There was a break in the chain of custody of
the seized drugs, which warranted her acquittal.44

In addition, Dimaano assailed the prosecution’s failure to present in court the airline ticket bearing her name. She
argued that this failure disproved the factual allegation that on November 13, 2000, she was supposed to board an
airplane to transport methamphetamine hydrochloride.45

Branch 119 of the Regional Trial Court, Pasay City found that the prosecution proved beyond reasonable doubt
that Dimaano attempted to transport methamphetamine hydrochloride, a dangerous drug. 46 According to the trial
court, Dimaano, a departing airline passenger, had in her person 13.96 grams of methamphetamine hydrochloride
distributed in seven (7) small sachets, three of which were placed in a bigger sachet and the remaining four in
another bigger sachet.47

On the discrepancy in NUP Bilugot’s and SPO2 Ragadio’s testimonies as to the number of sachets obtained from
Dimaano, the trial court explained that "the chain of [custody] [nevertheless] remained unbroken because
immediately after NUP Bilugot seized the ‘shabu’ from [Dimaano], [NUP Bilugot] immediately turned over the
same to SPO2 Ragadio who was just outside the door of the ladies[’] comfort room." 48 The trial court added that
SPO2 Ragadio’s testimony that he received from NUP Bilugot two (2) plastic sachets that were further placed
inside a bigger plastic sachet explained NUP Bilugot’s testimony that she obtained only one plastic sachet from
Dimaano.49

Considering that Dimaano was apprehended prior to her departure at the Manila International Airport, the trial
court ruled that she was properly charged with attempt to transport dangerous drugs punished under Section 5 in
relation to Section 26 of the Comprehensive Dangerous Drugs Act of 2002. 50 The presentation of the airline ticket,
therefore, was unnecessary.
Thus, in the Decision51 dated March 5, 2005, the trial court convicted Dimaano as charged. The dispositive portion
of the Decision reads:

WHEREFORE, this Court finds accused Cristy Dimaano y Tipdas guilty beyond reasonable doubt of violation of
Section 5, in relation to Section 26 of Republic Act 9165, she is hereby sentenced to Life Imprisonment and a fine
of five Hundred Thousand Pesos (P500,000.00).

The methamphetamine hydrochloride recovered from the accused is considered confiscated in favor of the
government and to be turned-over to the Philippine Drug Enforcement Agency.

SO ORDERED.52

Dimaano appealed53 before the Court of Appeals, maintaining that there was a break in the chain of custody of the
methamphetamine hydrochloride allegedly seized from her person. Because the testimonies of NUP Bilugot and
SPO2 Ragadio differed as to the number of sachets allegedly obtained from her, "the identity of the illegal drugs
recovered from her was not established."54

The Court of Appeals, however, was not convinced of Dimaano’s argument. It stated that "[a]side from
[Dimaano’s] . . . allegations, [Dimaano] did not present evidence to support her claim. [Worse,] she never bothered
to testify in court to refute the evidence of the prosecution."55

Relying on the general rule that "the lower court’s assessment of the credibility of the witnesses is accorded great
respect,"56 the Court of Appeals found NUP Bilugot and SPO2 Ragadio to be credible witnesses. That their
testimonies differed as to the number of sachets obtained from Dimaano did not destroy NUP Bilugot’s and SPO2
Ragadio’s credibility because "the chain of events as to the custody of the recovered shabu was never
broken."57Moreover, the Court of Appeals affirmed the trial court’s finding that the two sachets SPO2 Ragadio
obtained from NUP Bilugot were placed inside one bigger plastic sachet. 58 According to the Court of Appeals, this
explained why NUP Bilugot recalled obtaining only a single plastic sachet from Dimaano.

With respect to the airline ticket, the Court of Appeals agreed with the trial court that it need not be presented in
court to prove that Dimaano attempted to transport methamphetamine hydrochloride. According to the Court of
Appeals, the "indorsement letter"59 of Police Chief Inspector Roseller N. Fabian to the City Prosecutor of Pasay,
which stated that Dimaano was apprehended at the initial check-in departure area of the Manila International
Airport, proved that Dimaano was bound for Cebu to transport dangerous drugs. 60

In the Decision dated May 30, 2006, the Court of Appeals affirmed the trial court’s Decision dated March 5, 2005. 61

The case was brought on appeal before this court through a notice of appeal, 62 the penalty imposed on Dimaano
being life imprisonment.63 In the Resolution64 dated December 4, 2006, this court directed the parties to file their
respective supplemental briefs if they so desired.

In their respective manifestations, the Office of the Solicitor General, representing the People of the
Philippines,65and accused-appellant Dimaano66 requested this court to treat the appeal briefs they filed before the
Court of Appeals as their supplemental briefs. This court noted the parties’ manifestations in the
Resolution67 dated March 19, 2007.

In her Accused-Appellant’s Brief,68 Dimaano maintains that the prosecution failed to establish the identity of the
illegal drugs allegedly seized from her. With the inconsistent testimonies of NUP Bilugot and SPO2 Ragadio as to
the number of sachets allegedly obtained from her, Dimaano argues that the prosecution "failed to prove the
crucial first link in the chain of custody"69 required under Section 21 of the Comprehensive
Dangerous Drugs Act of 2002.70

Dimaano adds that NUP Bilugot and SPO2 Ragadio only marked the two sachets that contained seven smaller
sachets of methamphetamine hydrochloride allegedly obtained from her. They did not write their initials on the
seven sachets. Dimaano, thus, argues that "there is no certainty that the seven (7) smaller plastic sachets of shabu
presented in court by the prosecution were the very same ones recovered from [her]." 71

Lastly, with the prosecution’s failure to present in court the airline ticket that would prove that she intended to
board a plane bound for Cebu, Dimaano argues that the prosecution failed to establish her alleged attempt to
transport illegal drugs.72 She thus prays that this court set aside the trial court’s Decision and that a new decision
be rendered acquitting her of the crime charged.73

In its Brief for Plaintiff-Appellee,74 the Office of the Solicitor General cites portions of NUP Bilugot’s and SPO2
Ragadio’s respective testimonies, maintaining that the two prosecution witnesses credibly related in court how
Dimaano attempted to transport illegal drugs. Contrary to Dimaano’s claim, the Office of the Solicitor General
argues that there were no inconsistencies in NUP Bilugot’s and SPO2 Ragadio’s testimonies and cites SPO2
Ragadio’s testimony that he received from NUP Bilugot two plastic sachets that were further placed inside a bigger
plastic.75

As to why the seven (7) smaller sachets were not marked, the Office of the Solicitor General counters that this
"relate[s] only to [a] minor, trivial, peripheral and inconsequential [matter] that [does] not detract from the weight
of the testimonies of the prosecution witnesses in their entirety as to material and important facts."76

With respect to the prosecution’s failure to present the airline ticket bearing Dimaano’s name, the Office of the
Solicitor General argues that NUP Bilugot’s and SPO2 Ragadio’s testimonies sufficiently proved that Dimaano was
bound for Cebu to transport methamphetamine hydrochloride. 77 The Office of the Solicitor General thus prays that
the Decision convicting Dimaano be affirmed in toto.78

The principal issue for this court’s resolution is whether accused-appellant Cristy Dimaano y Tipdas is guilty beyond
reasonable doubt of attempting to transport dangerous drugs punished under Section 5 in relation to Section 26 of
the Comprehensive Dangerous Drugs Act of 2002. Subsumed in this issue is whether the prosecution established
the unbroken chain of custody of the methamphetamine hydrochloride allegedly seized from accused-appellant.

This appeal must be dismissed.

Section 5 of the Comprehensive Dangerous Drugs Act of 2002 punishes the transportation of dangerous drugs. The
provision states, in part:

Sec. 5. Sale, Trading, Administration, Dispensation, Distribution and Transportation of Dangerous Drugs and/or
Controlled Precursors and Essential Chemicals. – 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 sell, trade, administer, dispense, deliver, give away to another,
distribute, dispatch in transit or transport any dangerous drug, including any and all species of opium poppy
regardless of the quantity and purity involved, or shall act as a broker in any such transactions.

The attempt to transport dangerous drugs is punished by the same penalty prescribed for its commission:

SEC. 26. Attempt or Conspiracy. – Any attempt or conspiracy to commit the following unlawful acts shall be
penalized by the same penalty prescribed for the commission of the same as provided under this Act:

....
(b) Sale, trading, administration, dispensation, delivery, distribution and transportation of any dangerous drug
and/or controlled precursor and essential chemical[.]

To transport a dangerous drug is to "carry or convey [it] from one place to another."79 For an accused to be
convicted of this crime, the prosecution must prove its essential element: the movement of the dangerous drug
from one place to another.80

In cases involving violations of the Comprehensive Dangerous Drugs Act of 2002, the prosecution must prove "the
existence of the prohibited drug[.]"81 "[T]he prosecution must show that the integrity of the corpus delicti has
been preserved,"82 because "the evidence involved—the seized chemical—is not readily identifiable by sight or
touch and can easily be tampered with or substituted."83

To show that "the drugs examined and presented in court were the very ones seized [from the
accused],"84testimony as to the "chain of custody" of the seized drugs must be presented. Chain of custody is:

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 disposition85 and is governed by Section 21 of the Comprehensive Dangerous Drugs Act of
2002. Section 21, before amendment by Republic Act No. 10640 in 2013, provides, in part:

SECTION 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;

(2) Within twenty-four (24) hours upon confiscation/seizure of dangerous drugs, plant sources of
dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia
and/or laboratory equipment, the same shall be submitted to the PDEA Forensic Laboratory for a
qualitative and quantitative examination;

(3) A certification of the forensic laboratory examination results, which shall be done under oath by the
forensic laboratory examiner, shall be issued within twenty-four (24) hours after the receipt of the subject
item/s: Provided, That when the volume of the dangerous drugs, plant sources of dangerous drugs, and
controlled precursors and essential chemicals does not allow the completion of testing within the time
frame, a partial laboratory examination report shall be provisionally issued stating therein the quantities
of dangerous drugs still to be examined by the forensic laboratory: Provided, however, That a final
certification shall be issued on the completed forensic laboratory examination on the same within the
next twenty-four (24) hours[.]

The purpose of Section 21 is "to [protect] the accused from malicious imputations of guilt by abusive police
officers[.]"86
Nevertheless, Section 21 cannot be used to "thwart the legitimate efforts of law enforcement agents." 87 "Slight
infractions or nominal deviations by the police from the prescribed method of handling the corpus delicti [as
provided in Section 21] should not exculpate an otherwise guilty defendant." 88 Thus, "substantial adherence"89 to
Section 21 will suffice, and, as section 21(a) of the Implementing Rules and Regulations of the Comprehensive
Dangerous Drugs Act provides:

[N]on-compliance with [the] requirements [of Section 21] 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[.]

We agree with the trial court and the Court of Appeals that accused-appellant is guilty beyond reasonable doubt of
attempting to transport dangerous drugs. The prosecution proved the essential element of the crime; accused-
appellant would have successfully moved 13.96 grams of methamphetamine hydrochloride from Manila to Cebu
had she not been apprehended at the initial check-in area at the Manila Domestic Airport Terminal 1. The
prosecution need not present the airline ticket to prove accused-appellant’s intention to board an aircraft; she
submitted herself to body frisking at the airport when 13.96 grams of methamphetamine hydrochloride was found
in her person.90

It is true that NUP Bilugot testified in court that she recovered only a single plastic sachet from accused-appellant.
As to its contents, NUP Bilugot testified that she could not remember whether this single sachet contained several
other sachets:

Q - After you saw the napkin, what else did you see after [accused-appellant] [lowered] her panty?

A - One thing place(d) in a sachet attached to the panty.

Q - What was attached to the panty?

A - A sachet, sir.

....

Q - What about the plastic sachet that you recovered, if you see those plastic of shabu, would you be able to
identify it?

A - Yes, sir.

Q - How would you be able to identify?

A - We place(d) our initials, sir.

Q - And what is the marking that you placed in that plastic sachet?

A - My initials, FSB.

....

Q - I am showing to you madam witness a plastic sachet containing three plastic sachets containing shabu which
was previously marked as Exhibit "B," "B-1," "B-2," "B-3" and ["]B-4," kindly go over the same Miss Witness and tell
us what is the relation of this plastic sachet containing shabu from those that you found from the possession of the
accused?

A - During that time I recovered one plastic sachet only from her, sir.

Q - And did you come to know how many plastic sachets of shabu that were contained in that one plastic sachet?

A - No, sir.91 (Emphasis supplied)

Accused-appellant points out that NUP Bilugot’s testimony contrasts with that of SPO2 Ragadio, who testified that
NUP Bilugot turned over two sachets to him. These sachets, according to SPO2 Ragadio, further contained a total
of seven smaller sachets all containing methamphetamine hydrochloride. SPO2 Ragadio then initialled the two
outer sachets but not the seven smaller sachets:

Q - So what happened next Mr. Witness after Florence Bilugot brought the female passenger to the comfort room?

A - According to her, she was able to get two transparent plastic bag [sic] from the passenger.

....

Q - And so what did you do if any Mr. Witness after you were informed by Florence Bilugot that she was able to
find two paslic [sic] sachets from the possession of the female passenger?

A - The two plastic sachets were handed to me by her sir.

....

Q - So all in all how many transparent sachet[s] containing this two transparent plastic that were turned over to
you by Florence Bilugot?

A - Seven (7) all in all, sir.

....

Q - And how many plastic sachet[s] where you put your initial?

A - Two.

Q - Only two?

A - Yes, sir.92 (Emphasis supplied)

Despite the discrepancy in the testimonies as to the number of sachets obtained from accused-appellant, there is
evidence that NUP Bilugot marked two plastic sachets. Police Inspector Tecson, the Forensic Chemist who
subjected the specimen to chemical analysis, reported that he received two plastic sachets marked with "FSB,"
"RDR," and "RSA."93 "FSB" are the initials of NUP Bilugot.94

Having marked two plastic sachets, NUP Bilugot confirmed that she obtained those two sachets from accused-
appellant. This corroborates SPO2 Ragadio’s testimony that he received two sachets from NUP Bilugot, which were
further placed inside a plastic:
Q - By the way, Mr. Witness, when NUP frisker Florence Bilugot turn(ed) over to you these two pieces of plastic
sachets containing while [sic] crystalline substance which according to you were found to be positive for shabu
when examined, what was their condition at that time?

A - It was placed in a plastic, sir.95

NUP Bilugot may not have remembered the contents of the sachet she seized from accused-appellant. Still,
"witnesses are not expected to remember every single detail of an incident with perfect or total recall."96

That NUP Bilugot candidly stated in open court that she could not remember the contents of the sachet suggests
that she was telling the truth and was not rehearsed.97

It is likewise true that the seven smaller sachets inside the two plastic sachets were not initialled. 98 Nevertheless,
the marking of the corpus delicti as a means to preserve its identity should be done only "as far as practicable." 99 In
this case, only the two outer sachets could be marked because the two sachets were heat-sealed.100 The two outer
sachets would have to be opened for the seven smaller sachets to be marked. This would have contaminated the
specimen.

Thus, the prosecution successfully established the identity of the corpus delicti. In addition, the chain of custody
was unbroken. Both NUP Bilugot and SPO2 Ragadio testified that after NUP Bilugot seized the specimen, she
immediately endorsed it to SPO2 Ragadio. SPO2 Ragadio then turned over the two plastic sachets to investigators
detailed at the Philippine Center for Aviation and Security. SPO2 Ragadio’s testimony states, in part:

Q - You mentioned awhile ago . . . the plastic sachet containing shabu, how did you know that the two plastic
sachet were turn [sic] over by Florence Bilugot contain shabu?

A - When Florence Bilugot handed to me according to her that plastic is containing shabu.

Q - You said that there were two plastic sachet[s] that were recovered from the possession of the female
passenger turned over to you by Florence Bilugot, did you examine the two plastic sachet[s] that were turned over
to you?

A - Yes, sir.

Q - Who actually examined the contents of these two plastic sachet[s] that were turned over to you?

A - The investigator of the 2nd [Regional Aviation Security Office].

....

Q - How did the investigator examine the two plastic sachet[s] in your presence?

A - He opened the plastic in front of the passenger and weight [sic] it.

....

Q - In this two plastic sachet[s] how many plastic sachet that contain [sic] in them?

A - One has three and the other has four.

Q - So in one plastic sachet contain [sic] three transparent plastic bag[s] containing white crystalline substance?

A - Yes, sir.

Q - What about the other one?

A - Four.

Q - So all in all how many transparent plastic sachet[s] containing this [sic] two transparent plastic that were
turned over to you by Florence Bilugot?

A - Seven (7) all in all, sir.

....

Q - By the way Mr. Witness, when NUP frisker Florence Bilugot turn[ed] over to you this [sic] two pieces of plastic
sachet containing white crystalline substance which according to you were found to be positive for shabu when
examined, what was their condition at that time?

A - It was place[d] in a plastic, sir.

....

Q - Mr. Witness if this plastic sachet containing shabu will be shown to you, would you be able to identify them?

A - Yes, sir.

Q - How will you be able to identify them?

A - The initials, sir.

Q - And what are the initials that were place [sic] in these plastic?

A - RBR

Q - And what does that initial RBR mean?

A - Reynato B. Ragadio.101

Investigators from the Philippine Drug Enforcement Agency then collected the specimen and finally turned it over
to the Philippine National Police Crime Laboratory for testing.

We agree with the Court of Appeals when it cited People v. Dulay,102 which states that:

[I]n cases involving violations of the Dangerous Drugs Act, credence is given to prosecution witnesses who are
police officers for they are presumed to have performed their duties in a regular manner, unless there is evidence
to the contrary suggesting ill-motive on the part of the police officers or deviation from the regular performance of
their duties. . .
. The findings of the trial court on the credibility of witnesses and their testimonies are accorded great respect
unless the trial court overlooked substantial facts and circumstances, which, if considered, would materially affect
the result of the case.103

We find no ill motive on the part of NUP Bilugot or SPO2 Ragadio to implicate accused-appellant had it not been
true that sachets of methamphetamine hydrochloride were seized from her. We, therefore, uphold her
conviction.1âwphi1

Accused-appellant being guilty of attempt to transport dangerous drugs, the trial court correctly imposed the
penalty of life imprisonment and a fine of P500,000.00 per Section 5 in relation to Section 26 of the
Comprehensive Dangerous Drugs Act of 2002.

In crimes committed in airports, the prosecution relies heavily on airport security personnel and procedures for
evidence. Recently, cases of illegal possession of ammunition committed in airports have been on the news, with
some suggesting that airport security personnel are behind this laglag-bala modus operandi. Whether or not there
is truth in these reports, the public has since been more concerned with airport security procedures.

The rise in cases of laglag-bala, however, does not excuse the laxity in processing other pieces of evidence. Drugs
equally destroy lives, as do bullets fired with a gun. Prosecuting drug dealers and users should be given equal
vigilance.

WHEREFORE, the appeal is DISMISSED. The Court of Appeals Decision dated May 30, 2005 in CA-G.R. CR-H.C. No.
00942 affirming the conviction of accused-appellant Cristy Dimaano y Tipdas by Branch 119 of the Regional Trial
Court, Pasay City for violation of Section 5 in relation to Section 26 of Republic Act No. 9165 is AFFIRMED.

SO ORDERED.

SECOND DIVISION

[ G.R. No. 196973, July 31, 2013 ]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. RUPER POSING Y ALAYON, ACCUSED-APPELLANT.

DECISION

PEREZ, J.:

For review through this appeal[1] is the Decision[2] dated 30 November 2010 of the Court of Appeals (CA) in CA-G.R.
CR-HC No. 03858 which affirmed the conviction of herein accused-appellant RUPER POSING y ALAYON of illegal
sale and illegal possession of dangerous drugs in violation of Sections 5[3] and 11[4] respectively, Article II of
Republic Act (R.A.) No. 9165 or the Comprehensive Dangerous Drugs Act of 2002.

The factual antecedents of the case are as follows:

The prosecution presented SPO1 Purisimo Angeles (SPO1 Angeles), who testified that while on duty on 13 August
2003, at the Station Anti Illegal Drugs (SAID), an asset based at Makabayan St., Brgy. Obrero informed the duty
officer about the illegal activities of certain Ruper Posing (Posing), a known drug pusher in their barangay. As a
result, Chief P/Inspector Arturo Caballes (Chief Caballes) formed a team to conduct a buy bust operation. [5] A one
hundred peso bill (P100.00) was given by Chief Caballes with his initials, to serve as the marked money.[6]
SPO1 Angeles together with PO1 Jesus Cortez (PO1 Cortez), PO1 Ralph Nicart (PO1 Nicart) and the informant were
dispatched to Makabayan St., Brgy. Obrero, Kamuning, Quezon City, and upon arrival, the informant and SPO1
Angeles proceeded to the squatter's area. On the other hand, his companions positioned themselves within
viewing distance.[7]

SPO1 Angeles met Posing beside the basketball court, where he was introduced by the informant as a buyer
of shabu. The former asked if he could buy one hundred peso (P100.00) worth of shabu for personal use. Posing
then pulled out one (1) transparent plastic sachet from his pocket and gave it to SPO1 Angeles in exchange for the
buy-bust money. Afterwards, SPO1 Angeles took out his cap to alert his companions that the deal was already
concluded. PO1 Cortez and PO1 Nicart rushed to the scene and introduced themselves as police officers. Posing
was frisked, and the buy- bust money and another transparent plastic sachet were recovered from him.
Afterwards, the suspect and the evidence were taken to the station. [8]

Prior to the turnover of the evidence to the desk officer, SPO1 Angeles placed his marking on the two (2) small
heat sealed transparent plastic sachets.[9] The same were then turned over to PO2 John Sales (PO2 Sales), who
prepared a request for laboratory examination.[10]

On the same day, the specimens were delivered by PO1 Nicart to the Philippine National Police (PNP) Crime
Laboratory for quantitative and qualitative examination, wherein each sachet was found to contain 0.03 gram and
tested positive for methylamphetamine hydrochloride or shabu, a dangerous drug. [11]

Both parties agreed to dispense with the testimonies of the following witnesses, and entered into stipulations, to
wit:

As regards Engr. Leonard Jabonillo (Engr. Jabonillo):

1) That he is a Forensic Chemist of the [PNP];

2) That his office received a request for laboratory examination marked as Exhibit "A;"

3) That together with said request, was a brown envelope marked as Exhibit "B" which contained two (2) plastic
sachets marked as Exhibits "B-1" and "B-2;"

4) That he thereafter conducted the requested laboratory examination and, in connection therewith, he submitted
Chemistry Report marked as Exhibit "C;"

5) That the findings thereon showing the specimen positive for methylamphetamine hydrochloride was marked as
Exhibit "C-1;"

6) That he likewise issued a Certification marked as Exhibit "D" and thereafter turned over the specimen to the
Evidence Custodian and retrieved the same for the trial scheduled today; and

7) That he has no personal knowledge about the circumstances surrounding the arrest of the accused as well as
the source of the substance subject of his examination.[12]

As regards PO2 Sales:

1) That he was the investigator assigned to investigate this case;

2) That in connection with the investigation he conducted and took the Affidavit of Arrest of [PO1 Nicart], [PO1
Cortez] and [SPO1 Angeles] (Exhibit "E");
3) That the two (2) plastic sachets marked as Exhibits "B-1" and "B-2" were turned over to him by the arresting
officers;

4) That he prepared a request for laboratory examination marked as Exhibit "A" and in connection therewith he
received a copy of the Chemistry Report, the original of which was marked as Exhibit "C;"

5) That the buy bust money consisting of one (1) P100.00 bill marked as Exhibit "F" was likewise turned over to him
with the updated "Watchlist of [Illegal] Drug Personalities" of Bgy. Obrero, Quezon City (Exhibit "G");

6) That he thereafter prepared the letter referral to the Office of the City Prosecutor, Quezon City marked as
Exhibit "H;" and

7) That he has no personal knowledge about the circumstances surrounding the arrest of the accused as well as
the source of the substance subject of his investigation.[13]

On the contrary, Posing testified that on 13 August 2004, between 4:00 to 5:00 o'clock in the afternoon, he was
walking along a basketball court at Makabayan St., Kamuning, Quezon City, when he was arrested by PO1 Cortez
and PO1 Nicart, who he came to know based on their name plates. [14] When he asked the officers what his
violation was, they replied: "Nag-mamaang-maangan ka pa."[15] He was then led to their vehicle and was brought
to Station 10 wherein he was asked to point to a certain "Nene" whom he did not know. He refused, which was
why he was detained and charged with violation of R.A. No. 9165.[16]

Based on the above, the following were filed against the accused:

For Criminal Case No. Q-03-120266 for violation of Section 5, Article II of R.A. No. 9165:

That on or about the 13th day of August, 2003, in Quezon City, Philippines, the said accused, not being authorized
by law to sell, dispense, deliver, transport, distribute any dangerous drug, did then and there, wilfully and
unlawfully sell, dispense, deliver, transport, distribute or act as broker in the said transaction, 0.03 (zero point zero
three) gram of white crystalline substance containing Methylamphetamine Hydrochloride, a dangerous drug.[17]

For Criminal Case No. Q-03-120267 for violation of Section 11, Article II of R.A. No. 9165:

That on or about the 13th day of August, 2003, in Quezon City, Philippines, the said accused, not being authorized
by law to possess or use any dangerous drug, did then and there wilfully, unlawfully and knowingly have in his/her
possession and control 0.03 (zero point zero three) gram of white crystalline substance containing
Methylamphetamine Hydrochloride, a dangerous drug.[18]

Upon arraignment on 2 December 2003, Posing entered a plea of "not guilty" on both charges. [19]

On 2 December 2008, the trial court found Posing GUILTY of violation of both Sections 5 and 11, Article II, of R.A.
9165 in Criminal Case No. Q-03-120266 and Criminal Case No. Q-03-120267, respectively. The disposition reads:

WHEREFORE, premises considered, judgement is hereby rendered as follows:

(a) Re: Criminal Case No. Q-03-120266 The Court finds accused RUPER POSING y ALAYON guilty beyond
reasonable doubt of a violation of Section 5, Article II of R. A. 9165. Accordingly, he is hereby sentenced to suffer
the penalty of LIFE IMPRISONMENTand to pay a fine in the amount of Five Hundred Thousand
(P500,000.00) PESOS.
(b) Re: Criminal Case No. Q-03-120267 The Court finds accused RUPER POSING y ALAYON guilty beyond
reasonable doubt of a violation of Section 11, Article II of R. A. 9165. Accordingly, he is hereby sentenced to suffer
the indeterminate penalty of imprisonment of TWELVE (12) YEARS and ONE (1) DAY as MINIMUM to FOURTEEN
(14) YEARS as MAXIMUM and to pay a fine in the amount of THREE HUNDRED THOUSAND (P300,000.00) PESOS.

The Branch Clerk of Court is hereby ordered to turn over the possession of custody of the dangerous drugs subject
hereof to the Philippine Drug Enforcement Agency for proper disposition and final disposal.[20]

On appeal, the accused-appellant, contended that the trial court gravely erred when it failed to consider the police
officers' failure to comply with the proper procedure in the handling and custody of the seized drugs, as provided
under Section 21 of R. A. No. 9165, which ultimately affected the chain of custody of the confiscated
drugs.[21] Further, it was posited that there was no prior surveillance conducted to verify the informant's tip and
that there was no coordination made with the Philippine Drug Enforcement Agency (PDEA). [22]Furthermore, the
accused-appellant invoked his right to be presumed innocent until proven guilty beyond reasonable doubt. [23]

The People, through the Office of the Solicitor General, countered that although the requirements under Section
21 of R. A. No. 9165 has been held to be mandatory, non-compliance with the same, does not necessarily warrant
an acquittal.[24] In addition, it was averred that the police officers are entitled to the presumption of regularity in
the performance of official duties. Finally, the accused-appellant did not interpose any evidence in support of his
defense aside from his bare denial.[25]

The CA affirmed the ruling of the trial court. The dispositive portion reads:

WHEREFORE, the Decision of the Regional Trial Court of Quezon City, Branch 82, dated 2 December 2008, in
Criminal Cases Nos. Q-03-120266 and Q-03-120267, is AFFIRMED.[26]

The appellate court ruled that the requisites laid down under Section 21 of R. A. No. 9165 were complied with,
more particularly, through the testimonies of the police officers which sufficiently established that the integrity
and the evidentiary value of the seized items were preserved.[27] As to the alleged non-coordination with the PDEA,
it was held that although the PDEA is the lead agency, it is not to be considered as the exclusive agency, in
enforcing drug-related matters. Lastly, the evidence presented by the prosecution clearly showed that the
elements of illegal sale and possession of dangerous drugs were proven by competent evidence, as compared to
the bare denial interposed by the accused-appellant.[28]

In the instant appeal, accused-appellant, merely reiterated his previous arguments before the appellate court that
the prosecution failed to establish the complete and unbroken chain of custody of the plastic sachets
of shabu allegedly sold and possessed by accused-appellant.[29]

Posed for resolution is whether or not the accused-appellant is guilty of illegal sale and possession of dangerous
drugs, and in the course of the investigation and trial, whether the integrity of the evidence was preserved.

We uphold the ruling of both the trial and the appellate court.

Both agreed that the illegal sale of shabu was proven beyond reasonable doubt. For the successful prosecution of
offenses involving the illegal sale of drugs under Section 5, Article II of R.A. No. 9165, the following elements must
be proven: (1) the identity of the buyer and seller, object and consideration; and (2) the delivery of the thing sold
and the payment therefor. What is material to the prosecution for illegal sale of dangerous drugs is the proof that
the transaction or sale actually took place, coupled with the presentation in court of evidence of corpus delicti.[30]

SPO1 Angeles testified thus:

Q: Now Mr. Witness did you report for duty on August 13, 2003?
A: Yes, sir.
Q: What happened while you were...What time did you report for duty?
A: I reported at around 10:00 in the morning.
Q: What happened while you were on duty on that date and time?
At around 5:30 in the afternoon, one of our asset which is based at Makabayan St., Brgy. Obrero, came
A: to our office and informed our duty officer about a certain Ruper Posing who was known as drug
pusher at their Barangay.
Q: What happened after this report was given to the desk officer?
Since the suspect is also included in our drug watch list, our Chief [SAID] immediately formed a team to
A:
conduct buy-bust operation against the suspect.[31]
xxxx
Q: What else transpired Mr. Witness?
A: After forming the said team, our Chief SAID P/Insp. Arturo Caballes gave me one (1) piece Php 100.
Q: What did he do?
A: He gave me one (1) piece Php100 which will be used as the buy bust money.[32]
xxxx
Q: What happened next Mr. Witness after placing your initial on that Php 100?
A: After that we were immediately dispatched to the location at Makabayan St., Brgy. Obrero.
xxxx
Q: Where in Quezon City?
A: Kamuning, Your Honor.
Q: District of Kamuning?
A: Yes, Your Honor.
Q: What time was that when you were dispatched?
We were dispatched at about 5:40 and we arrived at the location at around 5:45. It was just a 5-minute
A:
drive from our station.
Q: And who were with you at that time, Mr. Witness?
A: [PO1 Cortez] and [PO1 Nicart].
Q: Who else?
A: [PO1 Cortez].
Q: Who else?
A: And the informant, Your Honor.
Q: So how many were you all in all?
A: Four (4), sir.
Q: What happened when you arrived there?
Upon arrival thereat, I, together with the informant went to the squatter's area of Makabayan St., and
A: my companions positioned themselves in the viewing distance so that they will be able to monitor the
transaction. We were able to meet the suspect beside the basketball court of Makabayan Street.
Q: And what happened when you met the suspect?
I was introduced by the informant as the buyer of shabu and I asked the suspect if I can purchase worth
A:
Php100 just for my personal use?
Q: You asked him?
A: Yes, sir.
Q: What was his reply?
A: Immediately, he pulled out one (1) transparent plastic sachet.
Q: Where did he get that plastic sachet?
A: Inside his pocket, sir.
Q: And what happened next Mr. Witness?
A: After the exchange, I immediately took out my cap signifying completion of the drug deal.
Q: After making the pre-arranged signal, what happened next? What is your pre-arranged signal?
Removing my cap, Your Honor. After that, my two (2) companions PO1 Nicart and PO1 Cortez
A:
immediately rushed to the scene, took hold of the suspect and introduced themselves as police
 officers.
Q: How about you, what did you do?
A: I'm just beside the suspect.
Q: And what happened when your companion arrested the suspect?
Then I conducted body frisk on the suspect and I was able to recover the buy bust money and another
A:
transparent plastic sachet inside his left palm.
Q: Which buy-bust money are you referring to?
A: Which I gave to the suspect.
Q: If that buy-bust money is shown to you will you be able to identify the same?
A: Yes, sir. I have already identified it.
xxxx
I'm showing you Mr. Witness two (2) transparent plastic sachets marked as Exhibits "B-1" and "B-2,"
Q: kindly examine these two (2) plastic sachets and tell this Honorable Court the relation of these sachets
to the one you said you bought and recovered from the accused?
This one with marking RT1 is the one I bought from the suspect and the other heat sealed transparent
A:
plastic sachet which is marked as RT2 which I recovered from his left palm.[33]

In cases involving violations of Dangerous Drugs Act, credence should be given to the narration of the incident by
the prosecution witnesses especially when they are police officers who are presumed to have performed their
duties in a regular manner, unless there is evidence to the contrary. In this regard, the defense failed to show any
ill motive or odious intent on the part of the police operatives to impute such a serious crime that would put in
jeopardy the life and liberty of an innocent person, such as in the case of appellant. Incidentally, if these were
simply trumped-up charges against him, it remains a question why no administrative charges were brought against
the police operatives. Moreover, in weighing the testimonies of the prosecution witnesses vis-à-vis those of the
defense, it is a well-settled rule that in the absence of palpable error or grave abuse of discretion on the part of the
trial judge, the trial court's evaluation of the credibility of witnesses will not be disturbed on appeal.[34]

With the illegal sale of dangerous drugs established beyond reasonable doubt, the handling of the evidence, or the
observance of the proper chain of custody, which is also an indispensable factor in prosecution for illegal sale of
dangerous drugs, is the next matter to be resolved.

The accused-appellant, argued that the following instances would constitute a break in the chain of custody of the
seized plastic sachets of shabu: (1) SPO1 Angeles failed to identify the duty officer to whom he turned over the
alleged confiscated shabu; (2) SPO1 Angeles was not able to recall who brought the drug specimens to the crime
laboratory; (3) SPO1 Angeles failed to mark the confiscated sachets at the crime scene immediately after the
accused-appellant was arrested; and (4) the police officers failed to prepare an inventory report of the confiscated
drugs, no photographs of the same were taken in the presence of the accused-appellant and that of a
representative from the media or the Department of Justice or any elected public official.[35]

Section 1(b) of Dangerous Drugs Board Regulation No. 1, Series of 2002 which implements R.A. No. 9165 defines
"Chain of Custody" as follows:

"Chain of Custody" means 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.

In Malillin v. People,[36] we laid down the chain of custody requirements that must be met in proving that the
seized drugs are the same ones presented in court: (1) testimony about every link in the chain, from the moment
the item was picked up to the time it is offered into evidence; and (2) witnesses should describe the precautions
taken to ensure that there had been no change in the condition of the item and no opportunity for someone not in
the chain to have possession of the item.

In this case, the prosecution was able to prove, through the testimonies of its witnesses that the integrity of the
seized item was preserved every step of the process. After the sale of shabu and another sachet was discovered in
the person of accused-appellant, SPO1 Angeles, who was the poseur-buyer in the buy-bust operation, marked the
drug specimens, and then turned over the same to the desk officer, who in turn handed it to PO1 Sales. The latter
then prepared a Request for Laboratory Examination, and on the same day, the specimens were delivered by PO1
Nicart to the PNP Crime Laboratory for quantitative and qualitative examination, conducted by Engr. Jabonillo. [37]

The same was corroborated by PO1 Sales and Engr. Jabonillo, whose testimonies were dispensed with, and formed
part of the stipulations of facts agreed upon by both the prosecution and defense. [38]

The defense kept on harping on alleged lapses in the procedure observed by the apprehending officers, like SPO1
Angeles' failure to recall the duty officer to whom he turned over the specimens, and the officer who brought the
specimens to the crime laboratory. Also, they questioned the absence of an inventory report of the confiscated
drugs and that there were no photographs taken in the presence of the accused-appellant and that of a
representative from the media or the Department of Justice or any elected public officer.

Section 21, paragraph 1, Article II of Republic Act No. 9165 provides:

Section 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; x x x

But time and again, jurisprudence is consistent in stating that less than strict compliance with the procedural
aspect of the chain of custody rule does not necessarily render the seized drug items inadmissible. [39]

As held in People v. Llanita[40] as cited in People v. Ara:[41]

RA 9165 and its subsequent Implementing Rules and Regulations (IRR) do not require strict compliance as to the
chain of custody rule. x x x We have emphasized that what is essential is "the preservation of the integrity and the
evidentiary value of the seized items, as the same would be utilized in the determination of the guilt or innocence
of the accused." Briefly stated, non-compliance with the procedural requirements under RA 9165 and its IRR
relative to the custody, photographing, and drug-testing of the apprehended persons, is not a serious flaw that can
render void the seizures and custody of drugs in a buy-bust operation.

As to the charge of illegal possession of dangerous drugs, the prosecution must establish the following elements:
(1) the accused is in possession of an item or object, which is identified to be a prohibited or regulated drug; (2)
such possession is not authorized by law; and (3) the accused freely and consciously possessed the drug. [42] In the
case at hand, the prosecution was able to prove that the accused-appellant was in possession of one (1) plastic
sachet of shabu, when he was frisked on the occasion of his arrest. There was also no showing that he had the
authority to possess the drugs that was in his person. This Court held in a catena of cases that mere possession of a
regulated drug per se constitutes prima facie evidence of knowledge or animus possidendi sufficient to convict an
accused absent a satisfactory explanation of such possession the onus probandi is shifted to the accused, to
explain the absence of knowledge or animus possidendi.[43]

In fine, considering the pieces of evidence presented by the prosecution, the denial of the accused-appellant fails.
Courts generally view the defense of denial with disfavor due to the facility with which an accused can concoct it to
suit his or her defense. As evidence that is both negative and self-serving, this defense cannot attain more
credibility than the testimonies of the prosecution witnesses who testify clearly, providing thereby positive
evidence on the various aspects of the crime committed.[44]

Also, it is a well-entrenched principle that findings of fact of the trial court as to the credibility of witnesses are
accorded great weight and respect when no glaring errors, gross misapprehension of facts, and speculative,
arbitrary and unsupported conclusions can be gathered from such findings. The rationale behind this rule is that
the trial court is in a better position to decide the credibility of witnesses, having heard their testimonies and
observed their deportment and manner of testifying during trial. This rule finds an even more stringent application
where said findings are sustained by the Court of Appeals.[45] This Court does not find any convincing reason to
depart from the ruling of the trial court, which was affirmed by the appellate court.

WHEREFORE, the instant appeal is DENIED. Accordingly, the Decision of the Court of Appeals dated 30 November
2010 in CA-G. R. CR-HC No. 03858 is hereby AFFIRMED.

SO ORDERED.

SECOND DIVISION

[ G.R. No. 189840, December 11, 2013 ]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. JAY MONTEVIRGEN Y OZARAGA, ACCUSED-APPELLANT.

DECISION

DEL CASTILLO, J.:

Failure to physically inventory and photograph the shabu seized from an accused in the manner prescribed by law
do not invalidate his arrest or render said drug inadmissible in evidence if its integrity and evidentiary value remain
intact. It could still be utilized in determining the guilt or innocence of the accused.[1]

Factual Antecedents

On appeal is the Decision[2] dated July 31, 2009 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 03208 which
affirmed the Decision[3] dated December 18, 2007 of Branch 65, Regional Trial Court (RTC) of Makati City in
Criminal Case Nos. 05-1396 to 1397 convicting beyond reasonable doubt Jay Montevirgen y Ozaraga (appellant) for
the crime of illegal sale and possession of shabu under Sections 5 and 11, Article II of Republic Act (RA) No. 9165 or
the "Comprehensive Dangerous Drugs Act of 2002."

The Informations against appellant read as follows:

Criminal Case No. 05-1396

That on or about the 19th day of July 2005, in the City of Makati, Philippines, a place within the jurisdiction of this
Honorable Court, the above- named accused, without being authorized by law, did then and there willfully,
unlawfully and feloniously sell distribute and transport, weighing zero point zero four (0.04) gram of
Methylamphetamine Hydrochloride (Shabu), which is a dangerous drug, in violation of the above-cited law.

CONTRARY TO LAW.[4]

Criminal Case No. 05-1397

That on or about the 19th day of July 2005, in the City of Makati, Philippines, a place within the jurisdiction of this
Honorable Court, the above- named accused, not lawfully authorized to possess or otherwise use any dangerous
drug and without the corresponding license or prescription, did then and there willfully, unlawfully and feloniously
have in his possession, direct custody and control weighing zero point zero four (0.04) gram and zero point ten
(0.10) gram or [a] total weight of zero point fourteen (0.14) gram of Methylamphetamine Hydrochloride (Shabu),
which is a dangerous drug, in violation of the above-cited law.

CONTRARY TO LAW.[5]
During arraignment, appellant pleaded "not guilty" in the two cases. After the pre-trial conference, a joint trial on
the merits ensued.

Version of the Prosecution

On July 18, 2005, P/Supt. Marietto Valerio (P/Supt. Valerio) of the Makati City Police Station Anti-Illegal Drugs
Special Operation Task Force received a report from a confidential informant that appellant was selling shabu in
Malvar Street, Barangay South Cembo, Makati City. Thus, he immediately formed a team composed of police
officers and personnel of the Makati Anti-Drug Abuse Council (MADAC) to conduct a buy-bust operation against
appellant. The members of the entrapment team were PO3 Esterio M. Ruiz, Jr. (PO3 Ruiz), PO1 Percival Mendoza,
PO1 Honorio Marmonejo (PO1 Marmonejo), Barangay Captain Rodolfo Doromal, Eugenio Dizer, Miguel Castillo,
Leo Sese, and Anthony Villanueva. PO3 Ruiz was designated as poseur-buyer and was provided with two 100-peso
bills marked money. PO1 Marmonejo, on the other hand, coordinated the operation with the Philippine Drug
Enforcement Agency (PDEA), which issued a Certificate of Coordination.[6] The buy-bust team then proceeded to
the subject area but could not locate appellant.[7]

The next day, July 19, 2005, the buy-bust team returned to Malvar Street and found appellant talking to three
men. After these men departed, PO3 Ruiz, accompanied by the confidential informant, approached appellant. The
confidential informant introduced PO3 Ruiz to appellant and told him that PO3 Ruiz wanted to buy shabu.
Appellant asked PO3 Ruiz how much he wanted to buy and he replied, P200.00. Appellant pulled out from his
pocket three plastic sachets containing white crystalline substance and told PO3 Ruiz to choose one. He complied
and gave the marked money to appellant as payment. Appellant pocketed the remaining plastic sachets together
with the marked money. PO3 Ruiz then took off his cap the pre-arranged signal that the transaction had been
consummated. The other buy-bust team members then rushed to the scene to assist PO3 Ruiz in apprehending
appellant. The two other plastic sachets and marked money were recovered from appellant after PO3 Ruiz ordered
him to empty his pockets. PO3 Ruiz then marked the plastic sachets "EMR" for the one appellant sold to him and
"EMR-1" and "EMR-2"[8] for the other two sachets confiscated from appellant.

Appellant was taken to the police headquarters where he was booked and the incident recorded in the police
blotter. The items seized from him were turned over to the duty investigator who prepared a request for
laboratory examination and then sent to the crime laboratory. The results revealed that the contents of the plastic
sachets are positive for shabu.[9]

Version of the Defense

Appellant testified that on July 19, 2005, at around 2 p.m., he was in his house with his wife and child when he was
roused from sleep by a man armed with a gun. Several other armed men entered his house. He was told that a
buy-bust operation was being conducted. They searched his house then appellant was made to board a vehicle
where he was showed a plastic sachet containing white crystalline substance that he believed to be shabu. He
struggled to free himself and denied ownership thereof but his actions were futile. He was taken
to Barangay Olympia, Makati City, where he was detained for 30 minutes, then brought to the crime laboratory for
drug testing.[10]

Defense witness Fancy Dela Cruz corroborated the testimony of appellant. She averred that at around 1:30 p.m. of
July 19, 2005, two vehicles parked almost in front of her. Several men alighted from the vehicles and forced open
the door of appellant's house. She inquired as to their intentions but was told not to intervene and to avoid
involvement. She complied but heard one of the men telling appellant to get up and put on his clothes. The men
then had appellant board one of the vehicles and sped away. She looked for appellant's wife and informed her of
the incident.[11]

Ruling of the Regional Trial Court

The RTC gave credence to the testimony of the prosecution witnesses on the events that transpired prior to and
during the buy-bust operation. It rendered a verdict of conviction on December 18, 2007, [12] viz:

WHEREFORE, in view of the foregoing, judgment is hereby rendered as follows:

1. In Criminal Case No. 05-1396, the Court finds accused JAY MONTEVIRGEN y OZARAGA, GUILTY beyond
reasonable doubt of the charge for violation of Sec. 5, Art. II, RA 9165, and sentences him to suffer LIFE
imprisonment and to pay a fine of FIVE Hundred Thousand (P500,000.00) pesos;

2. In Criminal Case No. 05-1397, the Court finds accused JAY MONTEVIRGEN y OZARAGA, GUILTY beyond
reasonable doubt of the charge for violation of Sec. 11, Art. II, RA 9165 and sentences him to suffer the penalty of
imprisonment of Twelve (12) years and one (1) day as minimum to Twenty (20) years as maximum and to pay a
fine of Three Hundred Thousand (P300,000.00);

The period of detention of the accused should be given full credit.

Let the dangerous drug subject matter of these cases be disposed of in the manner provided for by law.

SO ORDERED.[13]
Ruling of the Court of Appeals

On appeal, the CA concurred with the RTC's findings and conclusions and, consequently, affirmed its judgment in
the assailed Decision[14] of July 31, 2009. The dispositive portion of CA's Decision reads:

WHEREFORE, the appeal is DENIED. The December 18, 2007 Decision of the Regional Trial Court of the City of
Makati, Branch 65 is hereby AFFIRMED.

SO ORDERED.[15]
Assignment of Errors

Still unable to accept his conviction, appellant is now before us raising the same interrelated errors he assigned
before the CA, viz:

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT DESPITE NON-COMPLIANCE WITH
THE REQUIREMENTS FOR THE PROPER CUSTODY OF SEIZED DANGEROUS DRUGS UNDER R.A. NO. 9165.
 II

THE TRIAL COURT GRAVELY ERRED IN GIVING CREDENCE TO THE PROSECUTION'S EVIDENCE NOTWIT[H]STANDING
THE FAILURE OF THE A[P]PREHENDING TEAM TO PROVE [THE] INTEGRITY OF THE SEIZED DRUGS. [16]
In his joint discussion of these errors, appellant contends that the police officers involved in the buy-bust operation
failed to observe the proper procedure in the custody and control of the seized drug by not marking the
confiscated specimens in the manner mandated by law. He claims that the arresting team did not immediately
conduct a physical inventory of the seized items and photograph the same in the presence of his representative or
counsel, representative from media, Department of Justice, and any elected public officials pursuant to Section 21
of the Implementing Rules and Regulations of RA 9165. He also argues that the Certificate of Coordination has no
weight in evidence and cannot be used to prove the legitimacy of the buy-bust operation since it was issued for
the failed entrapment operation the previous day, July 18, 2005.

Appellee, through the Office of the Solicitor General argues that the prosecution sufficiently established all the
elements of illegal sale and possession of shabu against appellant. It asserts that the integrity and evidentiary value
of the shabu seized from appellant were properly preserved by the arresting team.

Our Ruling

The appeal is unmeritorious.

Elements for the Prosecution of Illegal Sale and Possession of Shabu.

In every prosecution for the illegal sale of shabu, under Section 5, Article II of RA 9165, the following elements
must be proved: "(1) the identity of the buyer and the seller, the object and the consideration; and (2) the delivery
of the thing sold and the payment therefor. x x x What is material in a prosecution for illegal sale of dangerous
drugs is the proof that the transaction or sale actually took place, coupled with the presentation in court of
the corpus delicti"[17] or the illicit drug in evidence. On the other hand, in prosecuting a case for illegal possession
of dangerous drugs under Section 11, Article II of the same law, the following elements must concur: "(1) the
accused is in possession of an item or object, which is identified as a prohibited drug; (2) such possession is not
authorized by law; and (3) the accused freely and consciously possessed the drug.[18]

In this case, all the elements for the illegal sale of shabu were established. PO3 Ruiz, the poseur-buyer, positively
identified appellant as the person he caught in flagrante delicto selling a white crystalline substance believed to
be shabu in the entrapment operation conducted by the police and MADAC operatives. Upon receipt of the
P200.00 buy-bust money, appellant handed to PO3 Ruiz the sachet containing 0.04 gram of white crystalline
substance which later tested positive for shabu. "The delivery of the contraband to the poseur-buyer and the
receipt by the seller of the marked money successfully consummated the buy-bust transaction x x x."[19]

All the elements in the prosecution for illegal possession of dangerous drugs were also established. First, the two
plastic sachets containing shabu subject of the case for the illegal possession of drugs were found in appellant's
pocket after a search on his person was made following his arrest in flagrante delicto for the illegal sale of shabu. It
must be remembered that a person lawfully arrested may be searched for anything which may have been used or
constitute proof in the commission of an offense without a warrant. [20] Second, appellant did not adduce evidence
showing his legal authority to possess the shabu. Third, appellant's act of allowing the poseur-buyer to choose one
from among the three sachets and putting back into his pocket the two sachets of shabu not chosen clearly shows
that he freely and consciously possessed the illegal drugs. Hence, appellant was correctly charged and convicted
for illegal possession of shabu.

Appellant's defense of denial cannot prevail against the positive testimony of prosecution witnesses. There is also
no imputation by appellant of any evil motives on the part of the buy-bust team to falsely testify against him. Their
testimonies and actuations therefore enjoy the presumption of regularity.

Failure to Physically Inventory and Photograph the Shabu After Seizure and Confiscation is Not Fatal.

Appellant draws attention to the failure of the apprehending police officers to comply with Section 21(a), Article II
of the Implementing Rules and Regulations of RA 9165 regarding the physical inventory and photograph of the
seized items. This provision reads as follows:

(1) 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.
In other words, the failure of the prosecution to show that the police officers conducted the required physical
inventory and take photograph of the objects confiscated does not ipso facto render inadmissible in evidence the
items seized. There is a proviso in the implementing rules stating that when it is shown that there exist justifiable
grounds and proof that the integrity and evidentiary value of the evidence have been preserved, the seized items
can still be used in determining the guilt or innocence of the accused. [21]

Here, the absence of evidence that the buy-bust team made an inventory and took photographs of the drugs
seized from appellant was not fatal since the prosecution was able to preserve the integrity and evidentiary value
of the shabu. PO3 Ruiz, the poseur-buyer and apprehending officer, marked the seized items in front of appellant,
the barangay captain and other members of the buy-bust team, immediately after the consummation of the drug
transaction. He then delivered the seized items to the duty investigator, who in turn sent the same to the PNP
Crime Laboratory for examination on the same day. During trial, PO3 Ruiz was able to identify the said markings
and explain how they were made.

Clearly, there was no hiatus or confusion in the confiscation, handling, custody and examination of the shabu. The
illegal drugs that were confiscated from appellant, taken to the police headquarters, subjected to qualitative
examination at the crime laboratory, and finally introduced in evidence against appellant were the same illegal
drugs that were confiscated from him when he was caught in flagrante delicto selling and possessing the same.

Appellant's contention that the buy-bust team should have coordinated with the PDEA on the day the entrapment
operation occurred deserves scant consideration. Coordination with the PDEA is not an indispensable element of a
proper buy-bust operation.[22] A buy-bust operation is not invalidated by mere non-coordination with the PDEA.[23]

Penalty

Under Section 5, Article II of RA 9165, the penalty for the unauthorized sale of shabu, regardless of its quantity and
purity, is life imprisonment to death and a fine ranging from P500,000.00 to P10 million. Since the penalty imposed
by the RTC and affirmed by the CA is within the prescribed range, we affirm the lower courts' imposition of life
imprisonment as well as the payment of fine of P500,000.00.

On the other hand, Section 11(3), Article II of the same law provides that illegal possession of less than five grams
of shabu is penalized with imprisonment of twelve (12) years and one (1) day to twenty (20) years plus a fine
ranging from P300,000.00 to P400,000.00.
Appellant was found guilty of selling one sachet containing 0.04 gram of shabu and of possessing two other
sachets of the same substance with a total weight of 0.14 gram. Hence, applying the above provisions, the penalty
of imprisonment of twelve (12) years and one (1) day as minimum to twenty (20) years as maximum and the
payment of fine of P300,000.00 imposed by the RTC and affirmed by the CA are also proper.

WHEREFORE, the appeal is DISMISSED. The assailed Decision dated July 31, 2009 of the Court of Appeals in CA-
G.R. CR-H.C. No. 03208 affirming the conviction of Jay Montevirgen y Ozaraga by the Regional Trial Court of Makati
City, Branch 65, for violation of Sections 5 and 11, Article II of Republic Act No. 9165, is AFFIRMED.

SO ORDERED.

FIRST DIVISION

[ G.R. No. 206910, October 14, 2015 ]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. JULIET PANCHO, ACCUSED-APPELLANT.

DECISION

PEREZ, J.:

The subject of this review is the Decision[1] of the Court of Appeals in CA-G.R. CR. HC No. 01135 dated 16 July 2012,
which affirmed the Judgment[2] of the Regional Trial Court (RTC) of Cebu City, Branch 57, in Criminal Case No. CBU
74672, finding accused-appellant Juliet Pancho guilty beyond reasonable doubt of violating Section 11, Article II of
Republic Act (R.A.) No. 9165 or the Comprehensive Dangerous Drugs Act of 2002.

The Information filed on 22 September 2005 alleged:

That on or about the 14[th] day of September, 2005, at about 2:40 [p.m.], more or less, in the City of Cebu,
Philippines, and within the jurisdiction of this Honorable Court, the said accused, with deliberate intent, did then
and there have in [her] possession and under [her] control three (3) heat[-]sealed transparent plastic bags each of
white crystalline substance weighing 14.49 grams locally known as shabu, containing [m]ethamphetamine
hydrochloride, a dangerous drug, without authority of law.[3]

On arraignment, accused-appellant entered a non-guilty plea. Trial ensued.

The prosecution witnesses narrated that on the basis of a search warrant, members of the Criminal Investigation
and Intelligence Bureau of Cebu City conducted a search in the house of accused-appellant and her husband
Samuel Pancho located in Sitio Plastikan, Barangay Duljo-Fatima, Cebu City. Police Superintendent Pablo Labra
served the search warrant on accused-appellant. Police Officer 1 Roy Carlo Veloso (PO1 Veloso) was designated as
the searcher, while PO2 Benigno Andrew Ilagan (PO2 Ilagan) was assigned as the recorder of the raiding team. The
raiding team was accompanied by three barangay tanods. The search yielded three big plastic packets of
suspected shabu weighing a total of 14.49 grams, which were recovered under a jewelry box placed on top of a
cabinet divider. PO1 Veloso handed the packets of shabu to PO2 Ilagan who recorded them in the confiscation
receipt and made markings on the plastic packets.

The raiding team brought accused-appellant to the police station. PO1 Veloso accompanied PO2 Ilagan in handing
over the seized articles and the letter-request to the Philippine National Police (PNP) Crime Laboratory. The PNP
Crime Laboratory later issued Chemistry Report No. D-1381-2005, confirming that the three heat-sealed
transparent plastic bags, weighing a total of 14.49 grams, were tested positive for the presence of
methamphetamine hydrochloride. The Chemistry Report states:

SPECIMEN SUBMITTED

A- Three (3) heat-sealed transparent plastic bags each white crystalline substance having a total net weight of
14.49 grams each with marking "SW-SP & JP-01 to 03" and further marked as A-l thru A-3. x x x

PURPOSE OF LABORATORY EXAMINATION

To determine the presence of dangerous drugs.

FINDINGS:

Qualitative examination conducted on the above-stated specimen gave POSITIVE result to the test for the
presence of Methamphetamine hydrochloride, a dangerous drug, x x x

CONCLUSION:

Specimens A-l thru A-3 contain Methamphetamine hydrochloride, a dangerous drug. [4] x x x

Accused-appellant denied the charge against her and alleged that she was sewing a blanket in her bedroom on the
second floor when two police officers barged into her room and ordered her to go down. When she went down,
two other police officers came and one of them went up to the bedroom. After a few seconds, the said police
officer went back down and called the barangay tanods. When the barangay tanods arrived, accused-appellant
was handcuffed and brought to the police station. Accused-appellant later learned that she was being charged
with illegal possession of shabu.

On 5 October 2009, the RTC rendered judgment finding accused-appellant guilty of illegal possession of shabu and
sentencing her to life imprisonment and to pay a P1,000,000.00 fine.

Accused-appellant seasonably filed a Notice of Appeal[5] before the Court of Appeals. On 16 July 2012, the Court of
Appeals affirmed the judgment of the RTC, with modification in the fine imposed which was reduced to
P500,000.00.

Accused-appellant filed a Notice of Appeal.[6] On 8 July 2013, we issued a Resolution requiring the parties to file
their supplemental briefs, if they so desire.[7] Both parties manifested that they would adopt the same arguments
in their separate briefs filed before the Court of Appeals.[8]

Accused-appellant asserts that the testimonies of the prosecution witnesses were plagued with inconsistencies
with respect to where the search of the house started and where the markings were made. Accused-appellant
insists that the barangay tanods should have been made to testify to corroborate the testimonies of the police
officers relative to the search. Accused-appellant avers that the requisites under Section 21, paragraph 1, Article 21
of R.A. No. 9165 were not complied with. Moreover, accused-appellant contends that the packs of shabuallegedly
recovered from her house should first be submitted to the court which issued the search warrant in accordance
with Section 12, Rule 126 of the Rules of Court.

The Office of the Solicitor General (OSG) dismisses the inconsistencies as trivial, and maintains that the elements of
the crime of illegal possession of a prohibited drug were proven by the prosecution. The OSG agrees that the
prosecution was able to establish the chain of custody of the corpus delicti; and despite the non-compliance with
Section 21 of R.A. No. 9165, the prosecution has shown that the integrity and evidentiary. value of the seized items
had been duly preserved.
Whether accused-appellant's guilt has been proven beyond reasonable doubt is the crux of this controversy.

In Valleno v. People,[9] the Court ruled that -

In order for prosecution for illegal possession of a dangerous drug to prosper, there must be proof that (1) the
accused was in possession of an item or an object identified to be a prohibited or regulated drug, (2) such
possession is not authorized by law, and (3) the accused was freely and consciously aware of being in possession of
the drug.[10]

The prosecution has duly established all these elements. By virtue of a search warrant, POl Veloso found three
packets of suspected shabuin one of the rooms of accused-appellant's house, thus:

Pros. Lapinid (to witness)

Q: How long have you been a police officer?
A: 4 years.
Q: In September of 2005 can you recall where were you then assigned?
A: I was assigned at Criminal Investigation and Intelligence Bureau, Cebu City Police Office.
Q: Specifically on September 14, 2005 at around 2:40 p.m., can you recall where you were?
I was together with the elements of our office led by Police Supt. Pablo G. Labra because we [were]
A:
serving a Search Warrant against Juliet and Samuel Pancho at Sitio Plastikan, Brgy. Duljo-Fatima.
You mentioned that you were serving a search warrant. That search warrant is for what violation of the
Q:
law Mr. Witness?
A: Violation of Sec. 11 Article II of RA 9165.
Q: Do you have a copy of that Search Warrant with you?
A: Yes, ma'am.
Pros. Lapinid:
We pray your Honor that this certified true copy of the Search Warrant as certified by Atty. [D]ela
Cerna Capacio of RTC Branch 13 be marked as our Exhibit "D."
COURT: Mark it. Pros. Lapinid (to witness)
Q: Who were with you at that time Mr. Witness?
As I've said, our team created by our Head of Office, Police Supt. Pablo G. Labra II was serving a Search
A: Warrant at Brgy. Duljo-Fatima. PO2 llagan and I were designated as searcher and recorder of the
raiding team.
You said that you were designated as the searcher in the implementation of the Search Warrant. Upon
Q:
reaching the place what happened?
A: When we reached at (sic) their place we noticed that their door was slightly opened.
By the way, before that, could you describe to us what was this building that you were about to search
Q:
at that time?
A: It was a two-storey semi-concrete house ma'am.
Q: You mentioned that upon arrival at the area[,] the door was slightly opened?
A: Yes, ma'am.
Q: And upon seeing that, what did you do?
Inside we saw a woman particularly in the living room and we called her attention that we were serving
A:
a search warrant against the Sps. Juliet and Samuel Pancho.
So after you called the attention of that woman whom you saw inside the house at the living room
Q:
what did she do?
She walked towards us because we were outside of their house and this PO2 Ilagan who was in
A:
possession of the search warrant showed to her a copy of the search warrant for her to read.
And after the woman was shown a copy of that search warrant by Police Officer Ilagan what
Q:
happened?
 When the woman whom we later knew to be Juliet allowed us to enter the house, we thereafter
A:
immediately started the search.
Aside from that woman whom you later knew to be Juliet Pancho, were there other persons inside that
Q:
house at that time?
I cannot recall anymore ma'am the other persons who were there inside the house except I, the
A:
accused, PO2 Ilagan, and the three barangay tanods who acted as witnesses.
You mentioned earlier that this Search Warrant was against Juliet and Samuel Pancho. Do you know
Q:
where this Samuel Pancho was at that time that you were conducting the search.
A: He was not around when we began the search.
Q: Did you ask Juliet Pancho where this Samuel Pancho was?
A: Yes, ma'am.
Q: And what was her reply?
A: She replied that Samuel Pancho went out of the house.
You said that after Juliet Pancho was shown a copy of the search warrant she allowed you to enter the
Q:
house and thereafter you immediately conducted the search. Where did you first start your search?
A: We [began] searching in the living room.
Q: And the living room is located where since you said that it was a two storey house?
A: It is located in the first floor.
Q: What was the result of your search of the living room?
A: We did not find any contraband or anything that is illegal.
COURT (to witness)
Q: You yourself conducted the search in the living room?
The search was conducted by me, together with the recorder PO2 Ilagan, the three barangay tanods,
A:
and the accused.
[COURT]: Proceed prosecutor.
Pros. Lapinid
Considering that you said you did not find any contraband which was illegal after searching the living
Q:
room, what did you do?
A: We continued our search towards the kitchen.
Q: Since you stated that thereafter you searched the kitchen, what was the result of your search?
A: The result was negative.
Q: And after the search of the kitchen yielded negative result, what did you do?
A: We went upstairs and started searching in one of the three rooms located at the second floor.
You said that there were three rooms at the second floor and you conducted your search in one of the
Q:
rooms. At that time do you know the occupant of this room that you searched first?
At first I personally do not know who the occupant of the first room was. It was later that we knew that
A:
the room which we searched first was occupied by Juliet and Samuel Pancho.
You mentioned that you searched the first room among the three at the second floor. What was again
Q:
the result of your search?
When we went inside the room we saw a big divider and on the divider was a jewelry box which
A:
covered the three (3) big plastic packets of suspected shabu.
Q: Where was Juliet Pancho when you recovered these three (3) big plastic packets of shabu?
A: She was with the group who conducted the search.
Q: So, you are saying that she (Juliet) was inside the room when you recovered the items?
A: Yes, ma'am.
COURT:
Q: What about the three barangay tanods, where were they?
A: They were also inside the room.[11]

The three packets of suspected shabu were submitted to the PNP Crime Laboratory. An examination was
conducted on the seized items, and the result yielded a positive finding for the presence of shabu.

The three packets of shabu were found not on accused-appellant's person but on top of a cabinet divider inside
her room. Accused-appellant was deemed to have been in constructive possession of the packets
of shabu because they were under her control and management.

"[Constructive possession exists when the drug is under the dominion and control of the accused or when he has
the right to exercise dominion and control over the place where it is found."[12] Accused-appellant is not
authorized by law to possess the shabu. Mere possession of a regulated drug per se constitutes prima
facie evidence of knowledge or animus possidendi sufficient to convict an accused absent a satisfactory
explanation of such possession - the onus probandi is shifted to the accused, to explain the absence of knowledge
or animus possidendi.[13] Accused-appellant's bare denials will not suffice to overcome the presumption of
knowledge.

Accused-appellant emphasizes the inconsistencies in the testimonies of the two police officers. PO1 Veloso stated
that the living room on the first floor of accused-appellant's house was searched first, while PO2 Ilagan narrated
that the search started on the second floor of the house. Moreover, accused-appellant claimed that PO1 Veloso
initially related that markings were done in the police station, only to backtrack and declare that markings were
done in accused-appellant's house. The inconsistency on the order of the search is a trivial matter and does not
detract from the fact that all elements for the crime were duly established. In relation to the marking of the
seized shabu, PO1 Veloso repeatedly declared that the marking was done in accused-appellant's house, thus:

Q: At the office, the three packs of shabu were marked subsequently, is that correct?
A: Yes, sir.
So the three packs claimed to be shabu were not marked at the place or at the room where it was
Q:
confiscated but in the office?
A: After the search was done, it was already marked in the house of the accused.
Did you not say earlier that the packs were marked was in the office because after the confiscation you
Q:
brought the accused to the office? Did you not say that earlier?
A: We brought the accused to the office, sir.
I am asking you, did you not say earlier that the packs of shabu were marked in your office after you
Q:
brought the accused to the office? Did you not say that?
A: The shabu was marked, sir.
That indeed you made an answer [to] the statement that the three packs believed to be shabu were
Q:
marked in your office after its confiscation. You told that, right? But later on, you changed your mind.
Because in normal search and seizure after the alleged shabu is seized, after the search is through, you
A:
mentioned the marking [in] the house. I was mistaken when I said it was marked in the office.
COURT: (To Witness)
Q: So who made the marking?
A: It was PO2 Ilagan, Your Honor.
ATTY. GONZALE[S]:
May I take in from here, Your Honor.
You said normal, are you saying that all police officers participating in the implementation of search
Q:
warrant do that?
A: In our office, sir.
Q: So the marking was done in your office?
COURT: (To Atty. Gonzale[s])
The procedure in their office is to have the shabu marked at the scene.
That is what he mean[t].
ATTY. GONZALES:
I was not able to get that way, Your Honor.
Q: You know officer Mendaros, SPO4 Mendaros?
A: Yes, sir.
Q: He is with your office, correct?
A: Yes, sir.[14]
It was actually accused-appellant's lawyer who asked if the markings were done at the office, and PO1 Veloso
inadvertently answered in the affirmative, but he immediately corrected himself when the mistake was pointed
out to him.

The non-presentation of the barangay tanods is not fatal to the case of the prosecution. The more relevant
testimonies are those of the members of the raiding team who testified that they recovered packets of shabu from
accused-appellant's house.

With respect to non-compliance with procedure laid down in the seizure and custody of prohibited drugs, the
primordial consideration is the preservation of the identity and integrity of the corpus delicti.

Section 21 of R.A. No. 9165 provides the procedure to be followed in the seizure and custody of prohibited drugs,
to wit:

Section 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[.]

The provisions of Article II, Section 21 (a) of the Implementing Rules and Regulations (1RR) of R.A. No. 9165
provide:

SECTION 21. x x x.

(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[.]

Accused-appellant cites as an irregularity the failure of the prosecution to present photographs of the seized items
and that there were no representatives from the media and the Department of Justice (DOJ) during the conduct of
the inventory of the seized items.

The Implementing Rules and Regulations of Section 21 (a) of R.A. No. 9165 offer some flexibility when a proviso
added 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."[15]
In People v. Salvador,[16] this Court ruled that the failure to submit in evidence the required physical inventory of
the seized drugs and the photograph, as well as the absence of a member of the media or the DOJ, pursuant to
Section 21, Article II of R.A. No. 9165, is not fatal and will not render an accused's arrest illegal or the items
seized/confiscated from him inadmissible.

"What is of utmost importance is the preservation of the integrity and [the] evidentiary value of the seized items,
as the same would be utilized in the determination of the guilt or innocence of the accused." [17]

In the instant case, the chain of custody of the seized illegal drugs was not broken. The prosecution established
that PO1 Veloso seized three packets of shabu from the bedroom of accused-appellant. He handed them over to
PO2 Ilagan, who made markings on the items and prepared a confiscation receipt of the same while in appellant's
house. PO2 Ilagan brought the confiscated shabu to the police station where he prepared a letter-request
addressed to the PNP Crime Laboratory. It was PO2 Ilagan, accompanied by PO1 Veloso, who went to the PNP
Crime Laboratory to bring the specimen and the letter-request. PO2 Roma received the shabu and forwarded the
same to the forensic chemist. The chain of custody was testified to by the police authorities. Clearly, the recovery
and the handling of the seized illegal drugs were satisfactorily established in this case.

The failure of the members of the raiding team to deliver the seized items to the judge who issued the warrant
becomes immaterial because records show that the chain of custody is intact.

Accused-appellant was caught in possession of 14.49 grams of shabu or methamphetamine hydrochloride. The
illegal possession of dangerous drugs is punishable under Section 11, paragraph 2(1), Article II of R.A. No. 9165, as
follows:

(1) Life imprisonment and a fine ranging from Four hundred thousand pesos (P400,000.00) to Five hundred
thousand pesos (P500,000.00), if the quantity of methamphetamine hydrochloride or "shabu" is ten (10) grams or
more but less than fifty (50) grams[.]

We affirm the penalty imposed by the Court of Appeals. It was specified in the Information that the shabu found in
the possession of the accused-appellant weighted 14.49 grams. This weight is as certified to in the Chemistry
Report. Such weight is within the range stated for by law.

WHEREFORE, the Decision dated 16 July 2012 of the Court of Appeals CA-G.R. CR. HC No. 01135 affirming the
conviction of accused-appellant Juliet Pancho by the Regional Trial Court of Cebu City, Branch 57, for violation of
Section 11, Article II of Republic Act No. 9165, and sentencing her to suffer the penalty of LIFE
IMPRISONMENT and to pay a fine of P500,000.00 is hereby AFFIRMED.

SO ORDERED.

SECOND DIVISION

[ G.R. No. 191366, December 13, 2010 ]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ARNOLD MARTINEZ Y ANGELES, EDGAR DIZON Y FERRER,
REZIN MARTINEZ Y CAROLINO, AND RAFAEL GONZALES Y CUNANAN, ACCUSED-APPELLANTS.

DECISION
MENDOZA, J.:

This is an appeal from the August 7, 2009 Decision[1] of the Court of Appeals (CA), in CA-G.R. HC-NO. 03269, which
affirmed the February 13, 2008 Decision[2] of the Regional Trial Court, Branch 41, Dagupan City (RTC), in Criminal
Case No. 2006-0525-D, finding the accused guilty of violating Section 13, in relation to Section 11, Article II of
Republic Act No. 9165 for Possession of Dangerous Drugs During Parties, Social Gatherings or Meetings.

The Facts

The Information indicting the accused reads:

That on or about the 2nd day of September 2006, in the City of Dagupan, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, ARNOLD MARTINEZ y ANGELES, EDGAR DIZON y FERRER, REZIN
MARTINEZ y CAROLINO, ROLAND DORIA y DIAZ and RAFAEL GONZALES y CUNANAN, without authority of law,
confederating together, acting jointly and helping one another, did then and there wilfully, unlawfully and
criminally, sniff and possess dangerous drugs (shabu residues) contained in empty plastic sachets and rolled
aluminum foil, during a party, or at a social gathering or meeting, or in the proximate company of at least two (2)
person[s].

Contrary to Section 13, Article II, R.A. 9165.[3]

Version of the Prosecution

As culled from the testimonies of prosecution witnesses, Police Officer 1 Bernard Azardon (PO1 Azardon), one of
the apprehending officers, and Police Inspector Lady Ellen Maranion (P/Insp. Maranion), the forensic chemical
officer, it appears that on September 2, 2006, at around 12:45 o'clock in the afternoon, PO1 Azardon was on duty
at the Police Community Precinct II along Arellano Street, Dagupan City, when a concerned citizen entered the
precinct and reported that a pot session was going on in the house of accused Rafael Gonzales (Gonzales) in
Trinidad Subdivision, Dagupan City. Upon receipt of the report, PO1 Azardon, PO1 Alejandro Dela Cruz (PO1 Dela
Cruz), and members of the Special Weapons and Tactics (SWAT) team hied to Trinidad Subdivision, Dagupan City.
Upon inquiry from people in the area, the house of Gonzales was located.

As the police officers entered the gate of the house, they saw accused Orlando Doria (Doria) coming out of the side
door and immediately arrested him. Inside the house, they saw accused Gonzales, Arnold Martinez (A. Martinez),
Edgar Dizon (Dizon), and Rezin Martinez (R. Martinez) in a room. The four were surprised by the presence of the
police. In front of them were open plastic sachets (containing shabu residue), pieces of rolled used aluminum foil
and pieces of used aluminum foil.

The accused were arrested and brought to the police precinct. The items found in the room were seized and
turned over to the Pangasinan Provincial Police Crime Laboratory Officer, P/Insp. Maranion. The latter conducted a
laboratory examination on the seized items and all 115 plastic sachets, 11 pieces of rolled used aluminum foil, and
27 of the 49 pieces of used aluminum foil tested positive for methamphetamine hydrochloride. The accused were
subjected to a drug test and, except for Doria, they were found to be positive for methamphetamine
hydrochloride.

Version of the Defense

The defense, through its witnesses, accused A. Martinez, Dizon, and R. Martinez, claimed that in the morning of
September 2, 2006, the three of them were along Arellano Street in Trinidad Subdivision, Dagupan City, to meet
with a certain Apper who bumped the passenger jeep of R. Martinez and who was to give the materials for the
painting of said jeep. As they were going around the subdivision looking for Apper, they saw Gonzales in front of
his house and asked him if he noticed a person pass by. While they were talking, Doria arrived. It was then that
five to seven policemen emerged and apprehended them. They were handcuffed and brought to the police station
in Perez, Dagupan City, where they were incarcerated and charged with sniffing shabu.

The Ruling of the RTC

The case against Doria was dismissed on a demurrer to evidence.

On February 13, 2008, the RTC rendered its decision, the dispositve portion of which reads:

WHEREFORE, premises considered, judgment is hereby rendered finding accused ARNOLD MARTINEZ y Angeles,
EDGAR DIZON y Ferrer, REZIN MARTINEZ y Carolino, and RAFAEL GONZALES y Cunanan GUILTY beyond reasonable
doubt of the crime of Possession of Dangerous Drugs During Parties, Social Gatherings or Meetings defined and
penalized under Section 13 in relation to Section 11, Article II of Republic Act 9165, and each of them is sentenced
to suffer the penalty of life imprisonment and to pay the fine in the amount of P500,000.00, and to pay the cost of
suit.

The subject items are hereby forfeited in favor of the government and to be disposed of in accordance with the
law.

SO ORDERED.[4]

The RTC was of the view that the positive testimony of prosecution witness PO1 Azardon, without any showing of
ill-motive on his part, prevailed over the defenses of denial and alibi put up by the accused. The accused were held
to have been in constructive possession of the subject items. A conspiracy was also found present as there was a
common purpose to possess the dangerous drug.

The Ruling of the CA

The CA ruled that there was sufficient evidence to support the findings of the RTC as to the constructive possession
of the dangerous drugs by the accused. It further held that although the procedure regarding the custody and
disposition of evidence prescribed by Section 21 of R.A. No. 9165 was not strictly complied with, the integrity and
evidentiary value of the evidence were nonetheless safeguarded. The CA was of the view that the presumption of
regularity in the performance of official duty was not sufficiently controverted by the accused.

Not in conformity, the accused now interposes this appeal before this Court praying for the reversal of the subject
decision, presenting the following

Assignment of Errors

For accused Arnold Martinez, Edgar Dizon and Rezin Martinez

1. The lower court erred in finding the accused-appellants to be having a pot session at the time of their
arrest;

2. The lower court erred in not seeing through the antics of the police to plant the shabu paraphernalia to
justify the arrest of the accused-appellants without warrant;
 3. The lower court erred in not finding that the corpus delicti has not been sufficiently established;

4. The lower court erred in not finding the uncorroborated testimony of PO1 Azardon insufficient to
convict the accused-appellants of the crime charged;

5. The lower court erred in not acquitting the accused-appellants.

For accused Rafael Gonzales

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT DESPITE THE PROSECUTION'S
FAILURE TO OVERTHROW THE CONSTITUTIONAL PRESUMPTION OF INNOCENCE.

II

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT DESPITE THE PROSECUTION'S
FAILURE TO ESTABLISH THE CHAIN OF CUSTODY OF THE ALLEGED CONFISCATED DRUG.

After an assiduous assessment of the evidentiary records, the Court finds that the prosecution failed to prove the
guilt of the accused. The principal reasons are 1] that the evidence against the accused are inadmissible; and 2]
that granting the same to be admissible, the chain of custody has not been duly established.

Illegal Arrest, Search and Seizure

Indeed, the accused is estopped from assailing the legality of his arrest if he fails to raise such issue before
arraignment.[5] However, this waiver is limited only to the arrest. The legality of an arrest affects only the
jurisdiction of the court over the person of the accused. A waiver of an illegal warrantless arrest does not carry
with it a waiver of the inadmissibility of evidence seized during the illegal warrantless arrest. [6]

Although the admissibility of the evidence was not raised as in issue by the accused, it has been held that this
Court has the power to correct any error, even if unassigned, if such is necessary in arriving at a just
decision,[7] especially when the transcendental matter of life and liberty is at stake.[8] While it is true that rules of
procedure are intended to promote rather than frustrate the ends of justice, they nevertheless must not be met at
the expense of substantial justice. Time and again, this Court has reiterated the doctrine that the rules of
procedure are mere tools intended to facilitate the attainment of justice, rather than frustrate it. Technicalities
should never be used to defeat substantive rights.[9] Thus, despite the procedural lapses of the accused, this Court
shall rule on the admissibility of the evidence in the case at bench. The clear infringement of the accused's right to
be protected against unreasonable searches and seizures cannot be ignored.

The State cannot, in a manner contrary to its constitutional guarantee, intrude into the persons of its citizens as
well as into their houses, papers and effects.[10] Sec. 2, Art. III, of the 1987 Constitution provides:

Section 2. - The right of the people to be secure in their persons, houses, papers, and effects against unreasonable
searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or
warrant of arrest shall issue except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly
describing the place to be searched and the persons or things to be seized.
This constitutional guarantee, however, is not a blanket prohibition against all searches and seizures without
warrant. Arrests and seizures in the following instances are allowed even in the absence of a warrant -- (i)
warrantless search incidental to a lawful arrest;[11] (ii) search of evidence in "plain view;" (iii) search of a moving
vehicle; (iv) consented warrantless search; (v) customs search; (vi) stop and frisk; and (vii) exigent and emergency
circumstances.[12]

This case would appear to fall under either a warrantless search incidental to a lawful arrest or a plain view search,
both of which require a lawful arrest in order to be considered valid exceptions to the constitutional guarantee.
Rule 113 of the Revised Rules of Criminal Procedure provides for the circumstances under which a warrantless
arrest is lawful. Thus:

Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private person may, without a warrant, arrest a
person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to
commit an offense;

(b) When an offense has just been committed and he has probable cause to believe based on personal knowledge
of facts or circumstances that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is
serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred
from one confinement to another.
In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be forthwith
delivered to the nearest police station or jail and shall be proceeded against in accordance with section 7 of Rule
112.

A review of the facts reveal that the arrest of the accused was illegal and the subject items were confiscated as an
incident thereof. According to the testimony of PO1 Azardon and his Joint Affidavit [13] with PO1 Dela Cruz, they
proceeded to, and entered, the house of accused Gonzales based solely on the report of a concerned citizen that a
pot session was going on in said house, to wit:

I go back to the information referred to you by the informant, did he not tell you how many persons
Q:
were actually conducting the pot session?
Yes, sir.
A:
When you went to the place of Rafael Gonzales, of course you were not armed with a search warrant,
Q:
correct?
None, sir.
A:
Before the information was given to you by your alleged informant, you did not know personally Rafael
Q:
Gonzales?
I have not met [him] yet but I heard his name, sir.
A:
When this informant told you that he was told that there was [an] ongoing pot session in the house of
Q: Rafael Gonzales, was this report to you placed in the police blotter before you proceeded to the house
of Rafael Gonzales?
I think it was no longer recorded, sir.
A:
 In other words, you did not even bother to get the personal data or identity of the person who told you
Q:
that he was allegedly informed that there was an ongoing pot session in the house of Rafael Gonzales?
What I know is that he is a jeepney driver of a downtown jeepney but he does not want to be identified
A: because he was afraid, sir.

And likewise, he did not inform you who told him that there was an ongoing pot session in the house of
Q:
Rafael Gonzales?
No more, sir.
A:
But upon receiving such report from that jeepney driver you immediately formed a group and went to
Q:
the place of Rafael Gonzales?
Yes, sir.
A:
xxx

When you were at the open gate of the premises of Rafael Gonzales, you could not see what is
Q:
happening inside the house of Rafael Gonzales?
Yes, sir.
A:
You did not also see the alleged paraphernalia as well as the plastic sachet of shabu on the table while
Q: you were outside the premises of the property of Rafael Gonzales?

xxx

Before they entered the premises they could not see the paraphernalia?
Q:

COURT: Answer.

Of course because they were inside the room, how could we see them, sir.
A:
But still you entered the premises, only because a certain person who told you that he was informed by
Q:
another person that there was an ongoing pot session going on inside the house of Rafael Gonzales?
Yes, sir.
A:
And that is the only reason why you barged in inside the house of Rafael Gonzales and you arrested the
Q:
persons you saw?
A: Yes, sir.[14]

Paragraph (c) of Rule 113 is clearly inapplicable to this case. Paragraphs (a) and (b), on the other hand, may be
applicable and both require probable cause to be present in order for a warrantless arrest to be valid. Probable
cause has been held to signify a reasonable ground of suspicion supported by circumstances sufficiently strong in
themselves to warrant a cautious man's belief that the person accused is guilty of the offense with which he is
charged.[15]

Although this Court has ruled in several dangerous drugs cases[16] that tipped information is sufficient probable
cause to effect a warrantless search,[17] such rulings cannot be applied in the case at bench because said cases
involve either a buy-bust operation or drugs in transit, basically, circumstances other than the sole tip of an
informer as basis for the arrest. None of these drug cases involve police officers entering a house without warrant
to effect arrest and seizure based solely on an informer's tip. The case of People v. Bolasa[18] is informative on this
matter.

In People v. Bolasa, an anonymous caller tipped off the police that a man and a woman were repacking prohibited
drugs at a certain house. The police immediately proceeded to the house of the suspects. They walked towards the
house accompanied by their informer. When they reached the house, they peeped inside through a small window
and saw a man and woman repacking marijuana. They then entered the house, introduced themselves as police
officers, confiscated the drug paraphernalia, and arrested the suspects. This Court ruled:

The manner by which accused-appellants were apprehended does not fall under any of the above-enumerated
categories. Perforce, their arrest is illegal. First, the arresting officers had no personal knowledge that at the time
of their arrest, accused-appellants had just committed, were committing, or were about to commit a crime.
Second, the arresting officers had no personal knowledge that a crime was committed nor did they have any
reasonable ground to believe that accused-appellants committed it. Third, accused-appellants were not prisoners
who have escaped from a penal establishment.

Neither can it be said that the objects were seized in plain view. First, there was no valid intrusion. As already
discussed, accused-appellants were illegally arrested. Second, the evidence, i.e., the tea bags later on found to
contain marijuana, was not inadvertently discovered. The police officers intentionally peeped first through the
window before they saw and ascertained the activities of accused-appellants inside the room. In like manner, the
search cannot be categorized as a search of a moving vehicle, a consented warrantless search, a customs search, or
a stop and frisk; it cannot even fall under exigent and emergency circumstances, for the evidence at hand is bereft
of any such showing.

On the contrary, it indicates that the apprehending officers should have conducted first a surveillance considering
that the identities and address of the suspected culprits were already ascertained. After conducting the
surveillance and determining the existence of probable cause for arresting accused-appellants, they should have
secured a search warrant prior to effecting a valid arrest and seizure. The arrest being illegal ab initio, the
accompanying search was likewise illegal. Every evidence thus obtained during the illegal search cannot be used
against accused-appellants; hence, their acquittal must follow in faithful obeisance to the fundamental law. [19]

It has been held that personal knowledge of facts in arrests without warrant must be based upon probable cause,
which means an actual belief or reasonable grounds of suspicion. The grounds of suspicion are reasonable when
the suspicion, that the person to be arrested is probably guilty of committing an offense, is based on actual facts,
that is, supported by circumstances sufficiently strong in themselves to create the probable cause of guilt of the
person to be arrested. [20]

As to paragraph (a) of Section 5 of Rule 113, the arresting officers had no personal knowledge that at the time of
the arrest, accused had just committed, were committing, or were about to commit a crime, as they had no
probable cause to enter the house of accused Rafael Gonzales in order to arrest them. As to paragraph (b), the
arresting officers had no personal knowledge of facts and circumstances that would lead them to believe that the
accused had just committed an offense. As admitted in the testimony of PO1 Azardon, the tip originated from a
concerned citizen who himself had no personal knowledge of the information that was reported to the police:

Mr. Witness, you claimed that the reason for apprehending all the accused was based on a tip-off by an
Q:
informant?
Yes, sir.
A:
Q: What exactly [did] that informant tell you?
He told us that somebody told him that there was an ongoing pot session in the house of one of the
A: accused Rafael Gonzales, sir.

You mean to say that it was not the informant himself to whom the information originated but from
Q:
somebody else?
A: That was what he told me, sir.
 Because of that you proceeded to where the alleged pot session was going on? [No Answer]
Q:
Q: Did you[r] informant particularly pinpointed [sic] to where the alleged pot session was going on?
No more because he did not go with us, sir.
A:
So you merely relied on what he said that something or a pot session was going on somewhere in
Q:
Arellano but you don't know the exact place where the pot session was going on?
Yes, sir.
A:
And your informant has no personal knowledge as to the veracity of the alleged pot session because
Q:
he claimed that he derived that information from somebody else?
This is what he told us that somebody told him that there was an ongoing pot session, sir.
A:
Q: Despite of [sic] that information you proceeded to where?
Trinidad Subdivision, sir.
A:
xxx

Q: Mr. Witness, did your informant named [sic] those included in the alleged pot session?
No, sir.
A:
Q: That was, because your informant don't [sic] know physically what was really happening there?
A: He was told by another person that there was an ongoing pot session there, sir. [21] [Emphasis supplied]

Neither can it be said that the subject items were seized in plain view. The elements of plainview are: (a) a prior
valid intrusion based on the valid warrantless arrest in which the police are legally present in the pursuit of their
official duties; (b) the evidence was inadvertently discovered by the police who have the right to be where they
are; (c) the evidence must be immediately apparent; and, (d) "plain view" justified mere seizure of evidence
without further search.[22]

The evidence was not inadvertently discovered as the police officers intentionally entered the house with no prior
surveillance or investigation before they discovered the accused with the subject items. If the prior peeking of the
police officers in Bolasa was held to be insufficient to constitute plain view, then more so should the warrantless
search in this case be struck down. Neither can the search be considered as a search of a moving vehicle, a
consented warrantless search, a customs search, a stop and frisk, or one under exigent and emergency
circumstances.

The apprehending officers should have first conducted a surveillance considering that the identity and address of
one of the accused were already ascertained. After conducting the surveillance and determining the existence of
probable cause, then a search warrant should have been secured prior to effecting arrest and seizure. The arrest
being illegal, the ensuing search as a result thereof is likewise illegal. Evidence procured on the occasion of an
unreasonable search and seizure is deemed tainted for being the proverbial fruit of a poisonous tree and should be
excluded.[23] The subject items seized during the illegal arrest are thus inadmissible. The drug, being the
very corpus delicti of the crime of illegal possession of dangerous drugs, its inadmissibility thus precludes
conviction, and calls for the acquittal of the accused.

As has been noted previously by this Court, some lawmen, prosecutors and judges have glossed over illegal
searches and seizures in cases where law enforcers are able to present the alleged evidence of the crime,
regardless of the methods by which they were obtained. This attitude tramples on constitutionally-guaranteed
rights in the name of law enforcement. It is ironic that such enforcement of the law fosters the breakdown of our
system of justice and the eventual denigration of society. While this Court appreciates and encourages the efforts
of law enforcers to uphold the law and to preserve the peace and security of society, we nevertheless admonish
them to act with deliberate care and within the parameters set by the Constitution and the law.[24]

Chain of Custody

Even granting that the seized items are admissible as evidence, the acquittal of the accused would still be in order
for failure of the apprehending officers to comply with the chain of custody requirement in dangerous drugs cases.

The accused contend that the identity of the seized drug was not established with moral certainty as the chain of
custody appears to be questionable, the authorities having failed to comply with Sections 21 and 86 of R.A. No.
9165, and Dangerous Drug Board (DDB)Resolution No. 03, Series of 1979, as amended by Board Regulation No. 2,
Series of 1990. They argue that there was no prior coordination with the Philippine Drug Enforcement
Agency (PDEA), no inventory of the confiscated items conducted at the crime scene, no photograph of the items
taken, no compliance with the rule requiring the accused to sign the inventory and to give them copies thereof,
and no showing of how the items were handled from the time of confiscation up to the time of submission to the
crime laboratory for testing. Therefore, the corpus delicti was not proven, thereby producing reasonable doubt as
to their guilt. Thus, they assert that the presumption of innocence in their favor was not overcome by the
presumption of regularity in the performance of official duty.

The essential requisites to establish illegal possession of dangerous drugs are: (i) the accused was in possession of
the dangerous drug, (ii) such possession is not authorized by law, and (iii) the accused freely and consciously
possessed the dangerous drug.[25] Additionally, this being a case for violation of Section 13 of R.A. No. 9165, an
additional element of the crime is (iv) the possession of the dangerous drug must have occurred during a party, or
at a social gathering or meeting, or in the proximate company of at least two (2) persons.

The existence of the drug is the very corpus delicti of the crime of illegal possession of dangerous drugs and, thus, a
condition sine qua nonfor conviction. In order to establish the existence of the drug, its chain of custody must be
sufficiently established. The chain of custody requirement is essential to ensure that doubts regarding the identity
of the evidence are removed through the monitoring and tracking of the movements of the seized drugs from the
accused, to the police, to the forensic chemist, and finally to the court. [26] Malillin v. Peoplewas the first in a
growing number of cases to explain the importance of chain of custody in dangerous drugs cases, to wit:

As a method of authenticating evidence, the chain of custody rule requires that the admission of an exhibit be
preceded by evidence sufficient to support a finding that the matter in question is what the proponent claims it to
be. It would include testimony about every link in the chain, from the moment the item was picked up to the time
it is offered into evidence, in such a way that every person who touched the exhibit would describe how and from
whom it was received, where it was and what happened to it while in the witness' possession, the condition in
which it was received and the condition in which it was delivered to the next link in the chain. These witnesses
would then describe the precautions taken to ensure that there had been no change in the condition of the item
and no opportunity for someone not in the chain to have possession of the same. [27]

Section 1(b) of DDB Regulation No. 1, Series of 2002,[28] defines chain of custody as follows:

b."Chain of Custody" means 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 used in court as evidence, and the final disposition;

Paragraph 1, Section 21, Article II of R.A. No. 9165, provides for safeguards for the protection of the identity and
integrity of dangerous drugs seized, to wit:
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.

People v. Habana thoroughly discusses the proper procedure for the custody of seized or confiscated items in
dangerous drugs cases in order to ensure their identity and integrity, as follows:

Usually, the police officer who seizes the suspected substance turns it over to a supervising officer, who would
then send it by courier to the police crime laboratory for testing. Since it is unavoidable that possession of the
substance changes hand a number of times, it is imperative for the officer who seized the substance from the
suspect to place his marking on its plastic container and seal the same, preferably with adhesive tape that cannot
be removed without leaving a tear on the plastic container. At the trial, the officer can then identify the seized
substance and the procedure he observed to preserve its integrity until it reaches the crime laboratory.

If the substance is not in a plastic container, the officer should put it in one and seal the same. In this way the
substance would assuredly reach the laboratory in the same condition it was seized from the accused. Further,
after the laboratory technician tests and verifies the nature of the substance in the container, he should put his
own mark on the plastic container and seal it again with a new seal since the police officer's seal has been broken.
At the trial, the technician can then describe the sealed condition of the plastic container when it was handed to
him and testify on the procedure he took afterwards to preserve its integrity.

If the sealing of the seized substance has not been made, the prosecution would have to present every police
officer, messenger, laboratory technician, and storage personnel, the entire chain of custody, no matter how
briefly one's possession has been. Each of them has to testify that the substance, although unsealed, has not been
tampered with or substituted while in his care.[29]

Section 21(a) of the Implementing Rules and Regulations (IRR) of R.A. No. 9165 further elaborates, and provides
for, the possibility of non-compliance with the prescribed procedure:

(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. [Emphasis supplied]

Accordingly, non-compliance with the prescribed procedural requirements will not necessarily render the seizure
and custody of the items void and invalid, provided that (i) there is a justifiable ground for such non-compliance,
and (ii) the integrity and evidentiary value of the seized items are properly preserved. In this case, however, no
justifiable ground is found availing, and it is apparent that there was a failure to properly preserve the integrity and
evidentiary value of the seized items to ensure the identity of the corpus delicti from the time of seizure to the
time of presentation in court. A review of the testimonies of the prosecution witnesses and the documentary
records of the case reveals irreparably broken links in the chain of custody.

According to the apprehending police officers in their Joint Affidavit, the following were confiscated from the
accused, to wit:

a) Several pcs of used empty plastic sachets containing suspected shabu residues.

b) Eight used (8) disposable lighters ( two (2) pcs colored orange, two (2) pcs colored yellow, one (1) pc colored
green & one (1) pc colored white ).

c) Several pcs of used rolled aluminum foil containing suspected shabu residues.

d) Several pcs of used cut aluminum foil containing suspected shabu residues.

e) One (1) pc glass tube containing suspected shabu residues.[30]

[Emphases supplied]

At the police station, the case, the accused, and the above-mentioned items were indorsed to Duty Investigator
Senior Police Officer 1 Pedro Urbano, Jr. (SPO1 Urbano) for proper disposition.[31] A letter-request for laboratory
examination was prepared by Police Superintendent Edgar Orduna Basbag for the following items:

a) Pieces of used empty small plastic sachets with suspected shabu residues marked "DC&A-1."

b) Pieces of used rolled and cut aluminum foil with suspected shabu residues marked "DC&A-2."

c) Pieces of used cut aluminum foil with suspected shabu residues marked "DC&A-3."[32]
[Emphases supplied]

The letter-request and above-mentioned items were submitted to P/Insp. Maranion by SPO3 Froilan Esteban
(SPO3 Esteban). Final Chemistry Report No. D-042-06L listed the specimens which were submitted for testing, to
wit:

SPECIMENS SUBMITTED:

A - A1 to A115 - One Hundred fifteen (115) open transparent plastic sachet with tag each containing suspected
shabu residue without markings.

B - B1 to B11 - Eleven (11) rolled used aluminum foil with tag each containing suspected shabu residue without
markings.

C - C1 to C49 - Forty-nine (49) used aluminum foil with tag each containing suspected shabu residue without
markings.[33]
[Emphases supplied]

Three days after the subject items were seized, or on September 5, 2006, a Confiscation Receipt was issued by PO1
Azardon and PO1 Dela Cruz, which reads:

DCPS AID SOTG 05 September 2006

CONFISCATION RECEIPT

TO WHOM IT MAY CONCERN:

THIS IS TO CERTIFY that on or about 12:45 noon of September 4, 2006, we together with our precinct supervisor,
SPO4 Pedro Belen Jr., and SWAT members composed of SPO1 Marlon Decano, PO3 Manuel Garcia, PO2 Adriano
Cepiroto and PO1 Aldrin Guarin apprehended the following names of persons of ARNOLD MARTINEZ Y ANGELES,
37 yrs old, married, jobless, a resident of Lucao Dist., this city; EDGAR DIZON Y FERRER, 36 yrs old, single, tricycle
driver, a resident of 471 Lucao Dist., this city. REZIN MARTINEZ Y CAROLINO, 44 yrs old, married, jitney driver, a
resident of Lucao Disttrict this city; ROLAND DORIA Y DIAZ, 39 yrs old, married, businessman, resident of
Cabeldatan, Malasiqui, Pangasinan and RAFAEL GONZALES Y CUNANAN, 49 yrs old, separated, jobless and a
resident of Trinidad Subd., Arellano-Bani this city.

Suspects were duly informed of their constitutional rights and were brought to Dagupan City Police Station, Perez
Market Site Dagupan City and indorsed to Duty Desk Officer to record the incident and the sachet of suspected
Shabu Paraphernaliaswere brought to PNP Crime Laboratory, Lingayen, Pangasinan for Laboratory Examination.

Seizing Officer:

(sgd.) (sgd.)
PO1 Bernard B Azardon PO1 Alejandro Dela Cruz
Affiant Affiant

Remarks:

Refused to Signed
Refused to Signed
Refused to Signed
Refused to Signed
Refused to Signed[34]

[Emphases supplied]

The 115 open transparent plastic sachets, 11 pieces of rolled used aluminum foil, and 27 (of the 49) pieces of used
aluminum foil, all containing shabu residue, as identified in the Final Chemistry Report, were presented in court
and marked as Exhibits "H" and series, "I" and series, and "J" and series, respectively. Said items were identified by
PO1 Azardon and P/Insp. Maranion at the witness stand.[35]

The CA ruled that the integrity and evidentiary value of the subject items were properly preserved as there was
sufficient evidence to prove that the items seized from the accused were the same ones forwarded to the crime
laboratory for examination, as shown in the Confiscation Receipt and the letter-request for laboratory
examination.

A review of the chain of custody indicates, however, that the CA is mistaken.

First, the apprehending team failed to comply with Section 21 of R.A. No. 9165. After seizure and confiscation of
the subject items, no physical inventory was conducted in the presence of the accused, or their representative or
counsel, a representative from the media and the DOJ, and any elected public official. Thus, no inventory was
prepared, signed, and provided to the accused in the manner required by law. PO1 Azardon, in his
testimony,[36] admitted that no photographs were taken. The only discernable reason proffered by him for the
failure to comply with the prescribed procedure was that the situation happened so suddenly. Thus:

But upon receiving such report from that jeepney driver you immediately formed a group and went to
Q:
the place of Rafael Gonzales?
Yes, sir.
A:
Q: Such that you did not even inform the PDEA before you barged in that place of Rafael Gonzales?
It was so suddenly, [sic] sir.
A:
Q: And that explains the reason why you were not able to have pictures taken, is that correct?
A: Yes, sir.[37]

[Emphasis supplied]

The Court does not find such to be a justifiable ground to excuse non-compliance. The suddenness of the situation
cannot justify non-compliance with the requirements. The police officers were not prevented from preparing an
inventory and taking photographs. In fact, Section 21(a) of the IRR of R.A. No. 9165 provides specifically that in
case of warrantless seizures, the inventory and photographs shall be done at the nearest police station or at the
nearest office of the apprehending officer/team. Whatever effect the suddenness of the situation may have had
should have dissipated by the time they reached the police station, as the suspects had already been arrested and
the items seized. Moreover, it has been held that in case of warrantless seizures nothing prevents the
apprehending officer from immediately conducting the physical inventory and photography of the items at their
place of seizure, as it is more in keeping with the law's intent to preserve their integrity and evidentiary value. [38]

This Court has repeatedly reversed conviction in drug cases for failure to comply with Section 21 of R.A. No. 9165,
resulting in the failure to properly preserve the integrity and evidentiary value of the seized items. Some cases
are People v. Garcia,[39] People v. Dela Cruz,[40]People v. Dela Cruz,[41] People v. Santos, Jr.,[42] People v.
Nazareno,[43] People v. Orteza,[44] Zarraga v. People,[45] and People v. Kimura.[46]

Second, the subject items were not properly marked. The case of People v. Sanchez is instructive on the
requirement of marking, to wit:

What Section 21 of R.A. No. 9165 and its implementing rule do not expressly specify is the matter of "marking" of
the seized items in warrantless seizures to ensure that the evidence seized upon apprehension is the same
evidence subjected to inventory and photography when these activities are undertaken at the police station rather
than at the place of arrest. Consistency with the "chain of custody" rule requires that the "marking" of the seized
items - to truly ensure that they are the same items that enter the chain and are eventually the ones offered in
evidence - should be done (1) in the presence of the apprehended violator (2) immediately upon
confiscation. This step initiates the process of protecting innocent persons from dubious and concocted searches,
and of protecting as well the apprehending officers from harassment suits based on planting of evidence under
Section 29 and on allegations of robbery or theft.

For greater specificity, "marking" means the placing by the apprehending officer or the poseur-buyer of his/her
initials and signature on the item/s seized. x x x Thereafter, the seized items shall be placed in an envelope or an
evidence bag unless the type and quantity of the seized items require a different type of handling and/or
container. The evidence bag or container shall accordingly be signed by the handling officer and turned over to the
next officer in the chain of custody.[47] [Emphasis in the original]

Nowhere in the testimony of PO1 Azardon or in his Joint Affidavit with PO1 Dela Cruz does it appear that the
subject items were at all marked. It was only in the letter-request for laboratory examination that the subject
items were indicated to have been marked with "DC&A-1," "DC&A-2" and "DC&A-3." There is no showing,
however, as to who made those markings and when they were made. Moreover, those purported markings were
never mentioned when the subject items were identified by the prosecution witnesses when they took the stand.

The markings appear to pertain to a group of items, that is, empty plastic sachets, rolled and cut aluminium foil,
and cut aluminium foil, but do not specifically pertain to any individual item in each group. Furthermore, it was
only in the Chemistry Report[48] that the precise number of each type of item was indicated and enumerated. The
Court notes that in all documents prior to said report, the subject items were never accurately quantified but only
described as "pieces,"[49] "several pcs,"[50] and "shabu paraphernallas."[51] Strangely, the Chemistry Report
indicates that all the subject items had "no markings," although each item was reported to have been marked by
P/Insp. Maranion in the course of processing the subject items during laboratory examination and
testing.[52] Doubt, therefore, arises as to the identity of the subject items. It cannot be determined with moral
certainty that the subject items seized from the accused were the same ones subjected to the laboratory
examination and presented in court.

This Court has acquitted the accused for the failure and irregularity in the marking of seized items in dangerous
drugs cases, such as Zarraga v. People,[53] People v. Kimura,[54] and People v. Laxa.[55]

Third, the Confiscation Receipt relied upon by the prosecution and the courts below gives rise to more uncertainty.
Instead of being prepared on the day of the seizure of the items, it was prepared only three days after. More
important, the receipt did not even indicate exactly what items were confiscated and their quantity. These are
basic information that a confiscation receipt should provide. The only information contained in the Confiscation
Receipt was the fact of arrest of the accused and the general description of the subject items as "the sachet of
suspected Shabu paraphernallas were brought to the PNP Crime Laboratory." The receipt is made even more
dubious by PO1 Azardon's admission in his testimony[56] that he did not personally prepare the Confiscation
Receipt and he did not know exactly who did so.

Fourth, according to the Certification[57] issued by the Dagupan Police Station, the subject items were indorsed by
PO1 Dela Cruz to Duty Investigator SPO1 Urbano for proper disposition. These were later turned over by SPO3
Esteban to P/Insp. Maranion. There is, however, no showing of how and when the subject items were transferred
from SPO1 Urbano to SPO3 Esteban.

Fifth, P/Insp. Maranion appears to be the last person in the chain of custody. No witness testified on how the
subject items were kept after they were tested prior to their presentation in court. This Court has highlighted
similar shortcomings in People v. Cervantes,[58] People v. Garcia,[59] People v. Sanchez,[60] and Malillin v. People.[61]

More irregularities further darken the cloud as to the guilt of the accused. Contrary to PO1 Azardon's
testimony[62] that they were tipped off by a concerned citizen while at the police station, the Letter [63] to the
Executive Director of the DDB states that the apprehending officers were tipped off "while conducting
monitoring/surveillance." Said letter also indicates, as does the Confiscation Receipt, that the arrest and seizure
occurred on September 4, 2006, and not September 2, 2006, as alleged in the Information. It was also mentioned
in the aforementioned Certification of the Dagupan Police and Joint Affidavit of the police officers that a glass tube
suspected to contain shabu residue was also confiscated from the accused. Interestingly, no glass tube was
submitted for laboratory examination.

In sum, numerous lapses and irregularities in the chain of custody belie the prosecution's position that the integrity
and evidentiary value of the subject items were properly preserved. The two documents specifically relied on by
the CA, the Confiscation Receipt and the letter-request for laboratory examination, have been shown to be grossly
insufficient in proving the identity of the corpus delicti. The corpus delicti in dangerous drugs cases constitutes the
drug itself. This means that proof beyond reasonable doubt of the identity of the prohibited drug is essential
before the accused can be found guilty.[64]
Regarding the lack of prior coordination with the PDEA provided in Section 86 of R.A. No. 9165, in People v. Sta.
Maria,[65] this Court held that said section was silent as to the consequences of such failure, and said silence could
not be interpreted as a legislative intent to make an arrest without the participation of PDEA illegal, nor evidence
obtained pursuant to such an arrest inadmissible. Section 86 is explicit only in saying that the PDEA shall be the
"lead agency" in the investigation and prosecution of drug-related cases. Therefore, other law enforcement bodies
still possess authority to perform similar functions as the PDEA as long as illegal drugs cases will eventually be
transferred to the latter.

Let it be stressed that non-compliance with Section 21 of R.A. No. 9165 does not affect the admissibility of the
evidence but only its weight.[66] Thus, had the subject items in this case been admissible, their evidentiary merit
and probative value would be insufficient to warrant conviction.

It may be true that where no ill motive can be attributed to the police officers, the presumption of regularity in the
performance of official duty should prevail. However, such presumption obtains only when there is no deviation
from the regular performance of duty.[67] Where the official act in question is irregular on its face, the
presumption of regularity cannot stand.

In this case, the official acts of the law enforcers were clearly shown and proven to be irregular. When challenged
by the evidence of a flawed chain of custody, the presumption of regularity cannot prevail over the presumption of
innocence of the accused.[68]

This Court once again takes note of the growing number of acquittals for dangerous drugs cases due to the failure
of law enforcers to observe the proper arrest, search and seizure procedure under the law. [69] Some bona
fide arrests and seizures in dangerous drugs cases result in the acquittal of the accused because drug enforcement
operatives compromise the integrity and evidentiary worth of the seized items. It behooves this Court to remind
law enforcement agencies to exert greater effort to apply the rules and procedures governing the custody, control,
and handling of seized drugs.

It is recognized that strict compliance with the legal prescriptions of R.A. No. 9165 may not always be possible.
Thus, as earlier stated, non-compliance therewith is not necessarily fatal. However, the lapses in procedure must
be recognized, addressed and explained in terms of their justifiable grounds, and the integrity and evidentiary
value of the evidence seized must be shown to have been preserved.[70]

On a final note, this Court takes the opportunity to be instructive on Sec. 11 [71] (Possession of Dangerous Drugs)
and Sec. 15[72] (Use of Dangerous Drugs) of R.A. No. 9165, with regard to the charges that are filed by law
enforcers. This Court notes the practice of law enforcers of filing charges under Sec. 11 in cases where the
presence of dangerous drugs as basis for possession is only and solely in the form of residue, being subsumed
under the last paragraph of Sec. 11. Although not incorrect, it would be more in keeping with the intent of the law
to file charges under Sec. 15 instead in order to rehabilitate first time offenders of drug use, provided that there is
a positive confirmatory test result as required under Sec. 15. The minimum penalty under the last paragraph of
Sec. 11 for the possession of residue is imprisonment of twelve years and one day, while the penalty under Sec. 15
for first time offenders of drug use is a minimum of six months rehabilitation in a government center. To file
charges under Sec. 11 on the basis of residue alone would frustrate the objective of the law to rehabilitate drug
users and provide them with an opportunity to recover for a second chance at life.

In the case at bench, the presence of dangerous drugs was only in the form of residue on the drug paraphernalia,
and the accused were found positive for use of dangerous drugs. Granting that the arrest was legal, the evidence
obtained admissible, and the chain of custody intact, the law enforcers should have filed charges under Sec. 15,
R.A. No. 9165 or for use of dangerous drugs and, if there was no residue at all, they should have been charged
under Sec. 14[73] (Possession of Equipment, Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs
During Parties, Social Gatherings or Meetings). Sec. 14 provides that the maximum penalty under Sec.
12[74](Possession of Possession of Equipment, Instrument, Apparatus and Other Paraphernalia for Dangerous
Drugs) shall be imposed on any person who shall possess any equipment, instrument, apparatus and other
paraphernalia for dangerous drugs. Under Sec. 12, the maximum penalty is imprisonment of four years and a fine
of P50,000.00. In fact, under the same section, the possession of such equipment, apparatus or other
paraphernalia is prima facie evidence that the possessor has used a dangerous drug and shall be presumed to have
violated Sec. 15.

In order to effectively fulfill the intent of the law to rehabilitate drug users, this Court thus calls on law enforcers
and prosecutors in dangerous drugs cases to exercise proper discretion in filing charges when the presence of
dangerous drugs is only and solely in the form of residue and the confirmatory test required under Sec. 15 is
positive for use of dangerous drugs. In such cases, to afford the accused a chance to be rehabilitated, the filing of
charges for or involving possession of dangerous drugs should only be done when another separate quantity of
dangerous drugs, other than mere residue, is found in the possession of the accused as provided for in Sec. 15.

WHEREFORE, the August 7, 2009 Decision of the Court of Appeals in CA-G.R. HC-NO. 03269 is REVERSED and SET
ASIDE and another judgment entered ACQUITTING the accused and ordering their immediate release from
detention, unless they are confined for any other lawful cause.

Let a copy of this decision be furnished the Director of the Bureau of Corrections, Muntinlupa City, for immediate
implementation. The Director of the Bureau of Corrections is directed to report to this Court within five days from
receipt of this decision the action he has taken. Copies shall also be furnished the Director-General, Philippine
National Police, and the Director-General, Philippine Drugs Enforcement Agency, for their information and
guidance.

The Regional Trial Court, Branch 41, Dagupan City, is directed to turn over the seized items to the Dangerous Drugs
Board for destruction in accordance with law.

SO ORDERED.

SECOND DIVISION

[ G.R. No. 185719, June 17, 2013 ]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. MARCELINO COLLADO Y CUNANAN, MYRA COLLADO Y
SENICA, MARK CIPRIANO Y ROCERO, SAMUEL SHERWIN LATARIO Y ENRIQUE,* AND REYNALDO RANADA Y
ALAS,** ACCUSED-APPELLANTS.

DECISION

DEL CASTILLO, J.:

Mere allegations and self-serving statements will not overcome the presumption of regularity in the performance
of official duties accorded to police officers. There must be a showing of clear and convincing evidence to
successfully rebut this presumption.

On appeal is the February 28, 2008 Decision[1] of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 02626 which
affirmed with modification the December 7, 2005 Decision[2] of the Regional Trial Court (RTC) of Pasig City, Branch
154 in Criminal Case Nos. 13781-D, 13783-D and 13784-D. The RTC convicted the appellants and several other
accused for violations of Republic Act (RA) No. 9165 or the Comprehensive Dangerous Drugs Act of 2002, and
imposed upon them the penalty of imprisonment and payment of fine in each of their respective cases.

Factual Antecedents
On October 14, 2004, appellants Marcelino Collado (Marcelino) and Myra Collado (Myra) were charged with the
crimes of sale of dangerous drugs and maintenance of a den, dive or resort in violation of Sections 5 and 6 of
Article II, RA 9165 docketed as Criminal Case Nos. 13781-D and 13782-D, respectively, viz:

CRIMINAL CASE NO. 13781-D

On or about October 9, 2004, in Pasig City, and within the jurisdiction of this Honorable Court, the accused,
conspiring and confederating together and both of them mutually helping and aiding one another, not being
lawfully authorized by law, did then and there willfully, unlawfully and feloniously sell, deliver and give away to
PO2 Richard N. Noble, a police poseur buyer, one (1) heat-sealed transparent plastic sachet containing three (3)
centigrams (0.03 gram) of white crystalline substance, which was found positive to the test for
methylamphetamine hydrochloride, a dangerous drug, in violation of the said law.

Contrary to law.[3]

CRIMINAL CASE NO. 13782-D

On or about or immediately prior to October 9, 2004, in Pasig City, and within the jurisdiction of this Honorable
Court, the accused, conspiring and confederating together and both of them mutually helping and aiding one
another, did then and there willfully, unlawfully and feloniously maintain a den, dive or resort located at No. 32 R.
Hernandez St., Brgy. San Joaquin, Pasig City, where x x x dangerous drugs are used or sold in any form, in violation
of the said law.

Contrary to law.[4]

Marcelino was also charged with illegal possession of dangerous drugs under Section 11, Article II of the same law
docketed as Criminal Case No. 13783-D, viz:

CRIMINAL CASE NO. 13783-D

On or about October 9, 2004, in Pasig City, and within the jurisdiction of this Honorable Court, the accused, not
being lawfully authorized to possess any dangerous drug, did then and there willfully, unlawfully and feloniously
have in his possession and under his custody and control one (1) heat-sealed transparent plastic sachet containing
six centigrams (0.06 gram) of white crystalline substance, which was found to be positive to the test for
methylamphetamine hydrochloride, a dangerous drug, in violation of the said law.

Contrary to law.[5]

On the other hand, appellants Mark Cipriano (Cipriano), Samuel Sherwin Latario (Latario), Reynaldo Ranada
(Ranada), together with co-accused Melody Apelo (Apelo), Marwin Abache (Abache), Michael Angelo Sumulong
(Sumulong), and Jay Madarang (Madarang), were charged with possession of drug paraphernalia in violation of
Section 14, Article II of RA 9165, docketed as Criminal Case No. 13784-D, viz:

CRIMINAL CASE NO. 13784-D

On or about October 9, 2004, in Pasig City, and within the jurisdiction of this Honorable Court, the accused, each
being in the proximate company of two (2) persons and in conspiracy with one another, without having been duly
authorized by law, did then and there willfully, unlawfully and feloniously have in their possession and under their
custody and control the following paraphernalias [sic], fit or intended for smoking, consuming, administering or
introducing any dangerous drug into the body, to wit:

a. one (1) strip aluminum foil containing traces of white crystalline substance marked as Exh-D;
b. one (1) improvised glass tooter containing traces of white crystalline substance marked as Exh-D1;
c. one (1) pack transparent plastic sachet marked as Exh-D2;
d. two (2) plastic disposable lighters marked as Exhs. "G-H";
e. one (1) tape-sealed transparent plastic sachet containing three (3) rolled aluminum foil marked as Exh. D5;
f. five (5) unsealed transparent plastic sachets marked as Exh. D6;
g. one (1) stainless scissor marked as Exh. D7;
h. one (1) rectangular glass marked as Exh. D8; and
i. one (1) roll of aluminum foil marked as Exh. D9.

[Specimens] marked as Exh-D and Exh-D1 were found positive to the test for methylamphetamine hydrochloride, a
dangerous drug, in violation of the said law.

Contrary to law.[6]

Upon arraignment on November 4, 2004, all the appellants and the other accused pleaded not guilty.[7] Pre-trial
and joint trial on the merits subsequently ensued.

Version of the Prosecution

The prosecution presented as witnesses PO2 Richard Noble (PO2 Noble) and SPO2 Bernardo Cruz (SPO2 Cruz) who
were involved in the buy-bust operation that led to the arrest of the appellants. Their testimonies are summarized
as follows:

On October 9, 2004, PO2 Noble received information from a civilian asset that spouses Marcelino and Myra were
engaged in selling shabuand that drug users, including out-of-school youth, were using their residence in 32 R.
Hernandez St., San Joaquin, Pasig City, for their drug sessions.[8] After recording the report in the police blotter,
PO2 Noble relayed the information to his superior, P/Insp. Earl B. Castillo (P/Insp. Castillo), who in turn ordered the
conduct of a surveillance operation.[9] PO2 Noble, SPO2 Cruz and PO1 Anthony Bitbit, conducted a surveillance on
the couple's residence. After confirming the reported activities, SPO2 Cruz looked for an asset who could
introduce them to Marcelino and Myra in the ensuing buy-bust operation.[10]

A buy-bust operation team was thereafter formed. After coordinating with the Philippine Drug Enforcement
Agency as evidenced by a Pre-Operation Report,[11] the team proceeded to Marcelino's and Myra's residence on
board two private vehicles. Upon reaching the target area, the asset introduced PO2 Noble to Marcelino as a
regular buyer of shabu.[12] When asked how much shabu he needed, PO2 Noble replied, "dalawang piso," which
means P200.00 worth of drugs. But when PO2 Noble was handing over the marked money to Marcelino, the latter
motioned that the same be given to his wife, Myra, who accepted the money. Marcelino then took from his
pocket a small metal container from which he brought out a small plastic sachet containing white crystalline
substance and gave the same to PO2 Noble. While PO2 Noble was inspecting its contents, he noticed smoke
coming from a table inside the house of the couple around which were seven persons.[13] When PO2 Noble gave
the pre-arranged signal, the backup team rushed to the scene. Simultaneously, PO2 Noble introduced himself as a
policeman and arrested Marcelino. He frisked him and was able to confiscate the metal container that contained
another sachet of white crystalline substance. PO2 Noble wrote the markings "MCC-RNN October 9, 2004" on both
the plastic sachets of white substance sold to him by Marcelino and the one found inside the metal container.

Meanwhile, SPO2 Cruz and another police officer went inside the house of Marcelino and Myra, where they found
Apelo, Cipriano, Ranada, Abache, Sumulong, Madarang and Latario gathered around a table littered with various
drug paraphernalia such as an improvised water pipe, strips of aluminum foil with traces of white substance,
disposable lighters, and plastic sachets. A strip of aluminum foil used for smoking marijuana was recovered from
Ranada. The buy-bust team arrested all these persons, advised them of their constitutional rights, and brought
them to police headquarters for investigation and drug testing.

A chemistry report[14] on all the seized items yielded positive results for methylamphetamine hydrochloride.
Another chemistry report[15] showed Marcelino, Apelo, Cipriano, and Ranada positive for drug use while Myra,
Abache, Sumulong, Madarang, and Latario were found negative.

Version of the Defense

The defense presented the testimonies of Marcelino, Myra, and Ranada, who all essentially put up the defense of
denial. The following is their version of the story.

Marcelino and Myra owned an electronics and appliance repair shop annexed to their house. In the evening of
October 9, 2004, Marcelino was in the living room with his children and nieces fixing a VCD player. Apelo, their
househelp, was in the kitchen preparing food while Ranada, their repairman, was outside the house fixing
Sumulong's motorcycle. Cipriano and Madarang were also present at the shop, the former to redeem his car
stereo and the latter to borrow a play station CD. Latario, a housemate of Marcelino and Myra, was also present
at the time.

Marcelino suddenly heard someone say "Walang tatakbo!" Four armed men rushed inside the house and pointed
their guns at him and said "Wag ka nang pumalag." He was thereafter dragged outside where he saw the other
accused already in handcuffs. Marcelino was later informed that they were being arrested for selling shabu.
Marcelino protested and disclaimed any knowledge about drugs. When the officers frisked all the accused,
Marcelino claimed that nothing illegal nor incriminating was recovered from them.

When Myra arrived at the scene, she was shocked to see her husband being arrested. The police officers then
brought all the accused to the police station for further questioning.

At the police station, PO2 Noble asked Marcelino for P50,000.00 as settlement of their case. Marcelino, Apelo,
Cipriano, and Ranada were also made to drink water that according to Marcelino tasted bitter. [16] They were then
brought to Camp Crame for medical examination and drug tests. Those who drank the bitter water tested positive
for drugs use while the others, who did not drink, tested negative.

Marcelino surmised that their arrest was due to a misunderstanding he had with a former police officer named Rey
who bought a VCD player from his shop. He specifically instructed Rey not to let anyone repair the VCD player
should it malfunction. However, when the VCD player malfunctioned, Rey had it repaired by somebody else,
hence Marcelino refused to accept the VCD player and return Rey's money. This earned the ire of Rey who
threatened him with the words "Humanda ka pagbalik ko."[17]

Ruling of the Regional Trial Court

In its Decision[18] dated December 7, 2005, the RTC disposed of the case as follows:

WHEREFORE, premises considered, judgment is hereby rendered as follows:

In Crim. Case No. 13781-D, finding the accused MARCELINO COLLADO y Cunanan and MYRA COLLADO y Senica
GUILTY beyond reasonable doubt of the crime of violation of Section 5 of R.A. 9165 (sale of dangerous drug) and
they are hereby sentenced to suffer the penalty of LIFE IMPRISONMENT.

Additionally, the two accused are ordered to pay a fine of ONE MILLION PESOS (P1,000,000.00) EACH.

In Crim. Case No. 13782-D, judgment is rendered finding the accused MARCELINO COLLADO y Cunanan and MYRA
COLLADO y Senica NOT GUILTY of the crime of violation of Section 6.
In Crim. Case No. 13783-D, finding the accused MARCELINO COLLADO y Cunanan GUILTY of the offense of
violation of Section 11 of R.A. 9165 and he is hereby sentenced to suffer the indeterminate penalty of
imprisonment of TWELVE (12) YEARS and ONE (1) DAY to FIFTEEN (15) YEARS.

The accused Marcelino Collado is also ordered to pay a fine of THREE HUNDRED THOUSAND PESOS (P300,000.00).

In Crim. Case No. 13784-D, judgment is hereby rendered finding the accused MELODY APELO y Roman, MARK
CIPRIANO y Rocero, MARWIN ABACHE y Aquilino, MICHAEL ANGELO SUMULONG y Belarmino, JAY MADARANG
y Gomez, SAMUEL SHERWIN LATARIO y Enrique and REYNALDO RANADA y Alas GUILTY of the offense of
violation of Section 14 of R.A. 9165 and they are hereby sentenced to suffer the indeterminate penalty of TWO (2)
YEARS, EIGHT (8) MONTHS and ONE (1) DAY to FOUR (4) YEARS imprisonment. Each of them is also ordered to
pay a fine of TEN THOUSAND PESOS (P10,000.00).

Let the shabu and paraphernalia alleged to be the subject[s] of the Information be turned over and delivered
immediately to the Philippine Drug Enforcement Agency (PDEA) for proper disposition.

SO ORDERED.[19]

Accused Apelo, Abache, Sumulong and Madarang applied for probation. [20] Hence, only Marcelino, Myra,
Cirpriano, Latario and Ranada appealed to the CA.[21]

Ruling of the Court of Appeals

The appellate court found the warrantless arrest of the appellants to be lawful considering that they were caught
in the act of committing a crime.[22] Thus, the CA affirmed the conviction of Marcelino and Myra for violation of
Section 5 of RA 9165 (sale of dangerous drugs), as well as the conviction of Marcelino for violation of Section 11 of
RA 9165 (illegal possession of dangerous drugs). Anent the violation of Section 14 of RA 9165 (possession of drug
paraphernalia), the CA affirmed the conviction of Ranada as he was caught having custody and control of a drug
paraphernalia intended for smoking and injecting illegal drugs into one's body. [23] As regards Cipriano and Latario,
as well as the other accused Apelo, Abache, Sumulong and Madarang, the CA found them guilty not as principals
but only as accessories.

Thus, the appellate court affirmed with modification the trial court's Decision through a Decision[24] dated
February 28, 2008, the dispositive portion of which states:

WHEREFORE, the appealed Decision is AFFIRMED with respect to the conviction and imposition of the respective
penalties against the following: (A) appellants Marcelino Collado and Myra Collado in Crim. Case No. 13781-
D[25] for violation of Section 5, Article II, RA No. 9165; (B) appellant Marcelino Collado in Crim. Case No. 13783-
D for violation of Section 11, Article II, RA No. 9165; (C) appellant Reynaldo Ranada in Crim. Case No. 13784-D for
violation of Section 14, Article II, RA No. 9165.

In Crim. Case No. 13784-D, MODIFICATION is hereby ordered as to appellants Mark Cipriano and Samuel Sherwin
Latario, including co-accused Melody Apelo, Marwin Abache, Michael Angelo Sumulong and Jay Madarang insofar
as they were found GUILTY, not as principals, but as ACCESSORIES in the offense of violation of Section 14, Article
II of RA No. 9165, in relation to the aforecited provision of the Revised Penal Code. Each of them shall suffer the
straight penalty of Four (4) Months of arresto mayor. The fine of Ten Thousand Pesos already imposed by the trial
court upon each of them is MAINTAINED.

SO ORDERED.[26]

Not satisfied, the appellants are now before this Court arguing that irregularities attended their arrest and
detention as well as the procedure in handling the specimen allegedly seized from them. Because of these, they
assert that their guilt was not proven beyond reasonable doubt.

Our Ruling

The appealed Decision should be affirmed, with modification.

The presumption of regularity in the

performance of official duties must
be upheld in the absence of clear and
convincing evidence to overturn the
same.

Appellants question the validity of the buy-bust operation and point out the following irregularities which they
claim attended its conduct: (1) lack of warrant of arrest; (2) non-compliance with the procedures laid down under
Section 21 of RA 9165; and, (3) the alleged extortion of money from them by PO2 Noble in exchange for dropping
the charges against them. Due to these irregularities, appellants argue that the presumption of regularity in the
performance of official duties accorded to police officers does not apply in this case.

Lack of a warrant of arrest

Appellants argue that the arrest, search, and seizure conducted by the police were illegal since it was not
supported by a valid warrant. They thus posit that their right to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures was violated.[27]

Section 5, Rule 113 of the Rules of Court provides for lawful warrantless arrests, viz:

Sec. 5. Arrest without warrant; when lawful. -- A peace officer or a private person may, without a warrant, arrest a
person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to
commit an offense;

(b) When an offense has in fact just been committed and he has probable cause to believe based on personal
knowledge of facts or circumstances that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who escaped from a penal establishment or place where he is
serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred
from one confinement to another.

Section 5(a) is what is known as arrest in flagrante delicto. For this type of warrantless arrest to be valid, two
requisites must concur: "(1) the person to be arrested must execute an overt act indicating that he has just
committed, is actually committing, or is attempting to commit a crime; and, (2) such overt act is done in the
presence or within the view of the arresting officer."[28] A common example of an arrest in flagrante delicto is one
made after conducting a buy-bust operation.

This is precisely what happened in the present case. The arrest of the appellants was an arrest in flagrante
delicto made in pursuance of Sec. 5(a), Rule 113 of the Rules of Court. The arrest was effected after Marcelino and
Myra performed the overt act of selling to PO2 Noble the sachet of shabu and Ranada of having in his control and
custody illegal drug paraphernalia. Thus, there is no other logical conclusion than that the arrest made by the
police officers was a valid warrantless arrest since the same was made while the appellants were actually
committing the said crimes.

Moreover, assuming that irregularities indeed attended the arrest of appellants, they can no longer question the
validity thereof as there is no showing that they objected to the same before their arraignment. Neither did they
take steps to quash the Informations on such ground.[29] They only raised this issue upon their appeal to the
appellate court. By this omission, any objections on the legality of their arrest are deemed to have been waived by
them.[30]

Anent their claim of unreasonable search and seizure, it is true that under the Constitution, "a search and
consequent seizure must be carried out with a judicial warrant; otherwise, it becomes unreasonable and any
evidence obtained therefrom shall be inadmissible for any purpose in any proceeding." [31] This proscription,
however, admits of exceptions, one of which is a warrantless search incidental to a lawful arrest. [32]

The arrest of the appellants was lawful. Under Section 13, Rule 126 of the Rules of Court, "[a] person lawfully
arrested may be searched for dangerous weapons or anything which may have been used or constitute proof in
the commission of an offense without a search warrant." The factual milieu of this case clearly shows that the
search was made after appellants were lawfully arrested. Pursuant to the above-mentioned rule, the subsequent
search and seizure made by the police officers were likewise valid. Hence, appellants' claim of unreasonable
search and seizure must fail.

Extortion

Appellants aver that PO2 Noble tried to extort money from them in exchange for dropping the drug charges
against them.

The defense of extortion and/or frame-up is often put up in drugs cases in order to cast doubt on the credibility of
police officers. This is a serious imputation of a crime hence clear and convincing evidence must be presented to
support the same. There must also be a showing that the police officers were inspired by improper motive. In this
case, we find such imputation unfounded.

In People v. Capalad,[33] this Court held thus:

Charges of extortion and frame-up are frequently made in this jurisdiction. Courts are, thus, cautious in dealing
with such accusations, which are quite difficult to prove in light of the presumption of regularity in the
performance of the police officers' duties. To substantiate such defense, which can be easily concocted, the
evidence must be clear and convincing and should show that the members of the buy-bust team were inspired by
any improper motive or were not properly performing their duty. Otherwise, the police officers' testimonies on the
operation deserve full faith and credit.

Here, aside from Marcelino's self-serving testimony, appellants' claim of extortion is not substantiated by other
convincing evidence. Neither was it established during trial that PO2 Noble or the other members of the buy-bust
team were impelled by improper motive. Appellants' allegation that PO2 Noble and his team arrested them
because of Marcelino's previous misunderstanding with a certain retired policeman named Rey deserves no
credence. No evidence was presented to show any connection between Rey and the buy-bust team. It was not
even shown by the defense who this person Rey really is. Also, it is highly unlikely that a team of police officers
would pursue a surveillance, conduct a buy-bust operation, and arrest all the accused for a measly P1,000.00 VCD
player. In view of these, appellants' allegation of extortion and improper motive deserves no credence.

Chain of Custody

Appellants argue that the procedure laid down in Section 21 of RA 9165 was not followed. They specifically harp
on the fact that the confiscated drugs were not photographed and inventoried. Moreover, they contend that the
police officers who handled the seized specimen were not presented in court to testify on the condition in which
they received the said specimen. For the appellants, these defects constitute a clear break in the chain of custody
and, consequently, the prosecution failed to establish corpus delicti.[34]

The Court, however, finds this argument unmeritorious.

Section 21, paragraph 1, Article II of RA 9165 provides for the custody and disposition of the confiscated drugs, to
wit:

(1) 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;

This rule is elaborated in Section 21(a), Article II of the Implementing Rules and Regulations of RA 9165, viz:

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 seizure; 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. (Emphasis supplied)

Pursuant to the above-cited provisions, this Court has consistently ruled that the failure of the police officers to
inventory and photograph the confiscated items are not fatal to the prosecution's cause,[35] provided that the
integrity and evidentiary value of the seized substance were preserved, as in this case. Here, PO2 Noble, after
apprehending Marcelino and confiscating from him the sachets of shabu, immediately placed his markings on
them. He testified thus:

PROSECUTOR PAZ:

Q: What did you do with that sachet containing white substance that was bought from Marcelino and the one that
you were able to confiscate from him?
A: I put my markings.

Q: What were those markings?

A: MCC-RNN October 9, 2004.[36]

In the Request for Laboratory Examination[37] the seized items were listed and inventoried. After the conduct of
the laboratory examination, Chemistry Report No. D-807-04[38] revealed that the contents of the said sachets
tested positive for methylamphetamine hydrochloride or shabu.

Moreover, it is of no moment that Forensic Chemist Alejandro De Guzman who conducted the laboratory
examination was not presented as a witness. The non-presentation as witnesses of other persons who had custody
of the illegal drugs is not a crucial point against the prosecution. [39] There is no requirement for the prosecution to
present as witness in a drugs case every person who had something to do with the arrest of the accused and the
seizure of the prohibited drugs from him.[40] To stress, the implementing rules are clear that non-compliance with
the 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.[41]

Criminal Case No. 13784-D

With regard to Criminal Case No. 13784-D for illegal possession of drug paraphernalia, we find it imperative to re-
examine the findings of both the RTC and the CA.

The RTC's findings are as follows:

The evidence for the prosecution clearly shows that certain things or paraphernalia which are fit or intended [for]
smoking shabu were found in the house of the accused Marcelino and Myra Collado on the same occasion that the
said spouses were arrested by the police officers. This fact makes all the accused without exception liable for
violation of Section 14. While it was only Reynaldo Ranada who was caught having in his possession an item used
in smoking marijuana, i.e., a strip of aluminum foil x x x and nothing was found in the possession of the other
accused, this fact nonetheless does not render Reynaldo Ranada the only person liable for violation of Section 14.
[Take note] that the law speaks not only of possession but also of having under one's control the paraphernalia
intended for smoking. In the instant case, the paraphernalia were found by the police on top of the table around
which the accused were gathered. Hence, even if the x x x accused other than Ranada did not have in their
possession any of the paraphernalia, it can, however, be said that the paraphernalia found on top of the table
were under their control. x x x[42]

Thus, the RTC found Ranada, Cipriano, Latario, Apelo Abache, Sumulong and Madarang all equally guilty of illegal
possession of drug paraphernalia.

On appeal, however, the CA found Ranada guilty as principal while Cipriano, Latario, Apelo, Abache, Sumulong and
Madarang were adjudged as accessories only for the crime of illegal possession of drug paraphernalia. The CA
ratiocinated thus:

On the one hand, we sustain the conviction of Rañada in Crim. Case 13784-D. He was actually caught having
custody and control of the confiscated drug paraphenalia intended for smoking, injecting, etc. into one's body. It
was also indubitably shown that he failed to present authority to possess the prohibited articles, much less, an
explanation of his possession thereof. However, as regards the other accused who were seen in the company of
Rañada, the evidence of conspiracy against them was insufficient.

To hold an accused guilty as co-principal by reason of conspiracy, he must be shown to have performed an overt
act in pursuance or furtherance of the complicity. Responsibility of a conspirator is not confined to the
accomplishment of a particular purpose of conspiracy but extends to collateral acts and offenses incident to and
growing out of the purpose intended.

It may be that appellants Mark Cipriano and Samuel Sherwin Latario and co-accused Melody Apelo, Marwin
Abache, Michael Angelo Sumulong, Jay Madarang were in close proximity [to] Rañada at the time and place of the
incident. But mere presence at the scene of the crime does not imply conspiracy. The prosecution failed to show
specific overt acts that would link these accused to Ranada's possession of the said contrabands. As to why they
were there [in] the vicinity of the crime scene was not explained. They could be mere innocent onlookers although
they were aware of the illegality of the principal's acts.

In any event, appellants Cipriano and Latario and the rest of the accused cannot be totally exonerated. [However,
we] downgrade their culpability corresponding to their criminal design and participation. Evidently, they are guilty
as accessories who, according to paragraph 1, Article 19 of the Revised Penal Code, are criminally liable by
'profiting themselves or assisting the offender to profit by the effects of the crime'. [43]

We find that the CA erred in convicting Cipriano, Latario, Apelo, Abache, Sumulong and Madarang as accessories.
As pointed out by Justice Arturo D. Brion:

"[I]llegal possession of equipment, instrument, apparatus and other paraphernalia for dangerous drugs during
parties, social gatherings or meetings under Section 14 of R.A. No. 9165 is a crime of malum prohibitum, that is,
the act is made wrong or evil because there is a law prohibiting it. x x x

Since violation of Section 14 of R.A. No. 9165 is a crime of mala prohibita, the degree of participation of the
offenders is not considered. All who perpetrated the prohibited act are penalized to the same extent. There is
no principal or accomplice or accessory to consider. In short, the degree of participation of the offenders does not
affect their liability, and the penalty on all of them are the same whether they are principals or merely accomplices
or accessories.[44]

In addition, Section 98 of RA 9165 specifically provides that "[n]otwithstanding any law, rule or regulation to the
contrary, the provisions of the Revised Penal Code (Act No. 3814), as amended, shall not apply to the provisions of
this Act, except in the case of minor offenders. Where the offender is a minor, the penalty for acts punishable by
life imprisonment to death provided herein shall be reclusion perpetuato death." It is therefore clear that the
provisions of the Revised Penal Code, particularly Article 19 on Accessories, cannot be applied in determining the
degree of participation and criminal liability of Ranada's co-accused.

At any rate, this Court is convinced that only Ranada should be held liable for violation of Section 14 of RA 9165. It
is clear that it was only Ranada who was caught having in his possession an aluminum foil intended for using
dangerous drugs.[45] As to the other co-accused, namely Apelo, Abache, Cipriano, Latario, Madarang, and
Sumulong, not one drug paraphernalia was found in their possession. The police officers were only able to find the
other drug paraphernalia scattered on top of a table. It is already established that there was no conspiracy
between Ranada and the other co-accused. As the CA correctly held, mere presence at the scene of the crime
does not imply conspiracy.[46]

PO2 Noble, when placed on the witness stand, only testified as follows:

A- While I was checking the item that I bought, I saw several persons inside their house.
Q- What were these persons doing?
A- Some were seated, some were standing and there was x x x smoke.
Q- Where was this smoke coming from?
I did not see where the smoke [was] coming from because some of the persons were blocking [my
A-
view].
Q- About how many persons were inside who were seated and who were standing?
A- Seven (7).
Q- Will you tell us if they are male or female or both?
A- Six (6) male persons and one (1) female.
Q- What are these persons who were seated inside the house doing?
A- They were allegedly engaged in drug session.
COURT:
Q- What do you mean allegedly?
A- Because there was smoke and I did not see what they were using.
PROSECUTOR PAZ:
Q- What about those who were standing, what were they doing?
 The persons who were standing were looking at the persons who were sitting. I could not see them
A-
clearly because some of them were blocking my view.
Q- How far were they, those who were seated and those who were standing?
A- They were close to each other.
Q- How long did you take a look at these persons inside the house?
A- Only for a while, only for a glance, sir.[47]

On the other hand, SPO2 Bernardo Cruz testified that it was only Ranada who was caught holding the aluminum
foil, viz:

Q- How about the aluminum foil that you recovered from another?
A- I saw him holding the strip of aluminum foil, sir.
Q- So, nothing was confiscated in the person of all other accused except for Ranada?
A- Yes, sir.[48]

Therefore, Apelo, Abache, Cipriano, Latario, Madarang, and Sumulong should be acquitted of the charge of
violation of Section 14, RA 9165 on possession of equipment, instrument, apparatus and other paraphernalia for
dangerous drugs.

All told, this Court upholds the presumption of regularity in the performance of official duties by the police officers
involved in this case. The defense was not able to show by clear and convincing evidence why the presumption
should be overturned. The prosecution, on the other hand, was able to establish that Marcelino, Myra and Ranada
committed the crimes imputed against them, they having been caught in flagrante delicto. This Court, being
convinced that the guilt of Marcelino, Myra, and Ranada have been proven beyond reasonable doubt, must uphold
their conviction.

As to Apelo, Abache, Cipriano, Latario, Madarang, and Sumulong, the Court finds that they should be acquitted of
the offense of violation of Section 14, Article II, RA 9165, since the prosecution was not able to clearly show
specific overt acts that would prove that they were in possession of drug paraphernalia.

WHEREFORE, the appeal is PARTLY GRANTED. The February 28, 2008 Decision of the Court of Appeals in CA-G.R.
CR-H.C. No. 02626 is AFFIRMED with MODIFICATION that appellants Mark Cipriano and Samuel Sherwin Latario,
including co-accused Melody Apelo, Marwin Abache, Michael Angelo Sumulong, and Jay Madarang are
hereby ACQUITTED of the crime of violation of Section 14, Article II of Republic Act No. 9165. They are ordered
released unless they are being lawfully held for some other cause.

SO ORDERED.

FIRST DIVISION

[ G.R. No. 200748, July 23, 2014 ]

JAIME D. DELA CRUZ, PETITIONER, VS. PEOPLE OF THE PHILIPPINES, RESPONDENT.

DECISION

SERENO, C.J.:
This is a Petition for Review on Certiorari, filed by petitioner Jaime D. dela Cruz, from the Decision[1] dated 22 June
2011 issued by the Twentieth Division of the Court of Appeals (CA) and Resolution[2] dated 2 February 2012 issued
by the Former Twentieth Division of the CA in CA- G.R. C.R. No. 00670.

THE ANTECEDENT FACTS

Petitioner Jaime D. dela Cruz was charged with violation of Section 15, Article II of Republic Act No. (R.A.) 9165, or
The Comprehensive Dangerous Drugs Act of 2002, by the Graft Investigation and Prosecution Officer of the Office
of the Ombudsman Visayas, in an Information[3] dated 14 February 2006, which reads:

That on or about the 31st day of January 2006, at Cebu City, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, JAIME D. DE LA CRUZ, a public officer, having been duly appointed
and qualified to such public position as Police Officer 2 of the Philippine National Police (PNP) assigned in the
Security Service Group of the Cebu City Police Office, after having been arrested by agents of the National Bureau
of Investigation (NBI) in an entrapment operation, was found positive for use of METHAMPHETAMINE
HYDROCHLORIDE commonly known as "Shabu", the dangerous drug after a confirmatory test conducted on said
accused.

CONTRARY TO LAW.

When arraigned, petitioner, assisted by counsel de parte, pleaded not guilty to the charge. The records do not
reveal whether De la Cruz was likewise charged for extortion.

VERSION OF THE PROSECUTION

The evidence of the prosecution reveals that at 8:00 a.m. of 31 January 2006, the agents and special investigators
of the National Bureau of Investigation, Central Visayas Regional Office (NBI-CEVRO) or simply NBI, received a
Complaint from Corazon Absin (Corazon) and Charito Escobido (Charito). The complainants claimed that at 1:00
a.m. of that same day, Ariel Escobido (Ariel), the live-in partner of Corazon and son of Charito, was picked up by
several unknown male persons believed to be police officers for allegedly selling drugs. An errand boy gave a
number to the complainants, and when the latter gave the number a ring, they were instructed to proceed to the
Gorordo Police Office located along Gorordo Avenue, Cebu City. In the said police office, they met "James" who
demanded from them ?100,000, later lowered to ?40,000, in exchange for the release of Ariel. After the meeting,
the complainants proceeded to the NBI-CEVRO to file a complaint and narrate the circumstances of the meeting to
the authorities. While at the NBI-CEVRO, Charito even received calls supposedly from "James" instructing her to
bring the money as soon as possible.

The special investigators at the NBI-CEVRO verified the text messages received by the complainants. A team was
immediately formed to implement an entrapment operation, which took place inside a Jollibee branch at the
corner of Gen. Maxilom and Gorordo Avenues, Cebu City. The officers were able to nab Jaime dela Cruz by using a
pre-marked ?500 bill dusted with fluorescent powder, which was made part of the amount demanded by "James"
and handed by Corazon. Petitioner was later brought to the forensic laboratory of the NBI-CEVRO where forensic
examination was done by forensic chemist Rommel Paglinawan. Petitioner was required to submit his urine for
drug testing. It later yielded a positive result for presence of dangerous drugs as indicated in the confirmatory test
result labeled as Toxicology (Dangerous Drugs) Report No. 2006-TDD-2402 dated 16 February 2006.

VERSION OF THE DEFENSE

The defense presented petitioner as the lone witness. He denied the charges and testified that while eating at the
said Jollibee branch, he was arrested allegedly for extortion by NBI agents. When he was at the NBI Office, he was
required to extract urine for drug examination, but he refused saying he wanted it to be done by the Philippine
National Police (PNP) Crime Laboratory and not by the NBI. His request was, however, denied. He also requested
to be allowed to call his lawyer prior to the taking of his urine sample, to no avail.

THE RULING OF THE RTC

The Regional Trial Court (RTC) Branch 58 of Cebu City, in its Decision [4] dated 6 June 2007, found the accused guilty
beyond reasonable doubt of violating Section 15, Article II of R.A. 9165 and sentenced him to suffer the penalty of
compulsory rehabilitation for a period of not less than six (6) months at the Cebu Center for the Ultimate
Rehabilitation of Drug Dependents located at Salinas, Lahug, Cebu City.[5]

Petitioner filed an appeal assigning as error the RTC's validation of the result of the urine test despite its
dubiousness having been admitted in spite of the lack of legal basis for its admission. First, he alleges that the
forensic laboratory examination was conducted despite the fact that he was not assisted by counsel, in clear
violation of his constitutional right. Secondly, he was allegedly held guilty beyond reasonable doubt
notwithstanding the lack of sufficient basis to convict him.

THE RULING OF THE CA

The CA found the appeal devoid of merit and affirmed the ruling of the RTC.

Petitioner filed a timely Motion for Reconsideration. He argued that the CA overlooked prevailing jurisprudence,
which states that drug testing conducted under circumstances similar to his would violate a person's right to
privacy. The appellate court nevertheless denied the motion.

Petitioner thus filed the present Petition for Review on certiorari. He assigns as errors the use of hearsay evidence
as basis for his conviction and the questionable circumstances surrounding his arrest and drug test.

Respondent, through the Office of the Solicitor General, filed its Comment, [6] saying that "petitioner's arguments
cannot be the subject of a petition for review on certiorari under Rule 45, as they involve questions of facts which
may not be the subject thereof; after his arraignment, he can no longer contest the validity of his arrest, less so at
this stage of the proceedings; his guilt has been adequately established by direct evidence; and the manner in
which the laboratory examination was conducted was grounded on a valid and existing law.

THE ISSUE

We deem it proper to give due course to this Petition by confronting head-on the issue of whether or not the drug
test conducted upon the petitioner is legal.

OUR RULING

We declare that the drug test conducted upon petitioner is not grounded upon any existing law or jurisprudence.

We gloss over petitioner's non-compliance with the Resolution[7] ordering him to submit clearly legible duplicate
originals or certified true copies of the assailed Decision and Resolution.

Petitioner was charged with use of dangerous drugs in violation of the law, the pertinent provision of which reads:
Section 15. Use of Dangerous Drugs. A person apprehended or arrested, who is found to be positive for use of any
dangerous drug, after a confirmatory test, shall be imposed a penalty of a minimum of six (6) months rehabilitation
in a government center for the first offense, subject to the provisions of Article VIII of this Act. If apprehended
using any dangerous drug for the second time, he/she shall suffer the penalty of imprisonment ranging from six (6)
years and one (1) day to twelve (12) years and a fine ranging from Fifty thousand pesos (?50,000.00) to Two
hundred thousand pesos (?200,000.00): Provided, That this Section shall not be applicable where the person tested
is also found to have in his/her possession such quantity of any dangerous drug provided for under Section 11 of
this Act, in which case the provisions stated therein shall apply.[8]

The RTC subsequently convicted petitioner, ruling that the following elements of Section 15 were established: (1)
the accused was arrested; (2) the accused was subjected to drug test; and (3) the confirmatory test shows that he
used a dangerous drug.

Disregarding petitioner's objection regarding the admissibility of the evidence, the lower court also reasoned that
"a suspect cannot invoke his right to counsel when he is required to extract urine because, while he is already in
custody, he is not compelled to make a statement or testimony against himself. Extracting urine from one's body is
merely a mechanical act, hence, falling outside the concept of a custodial investigation."

We find the ruling and reasoning of the trial court, as well as the subsequent affirmation by the CA, erroneous on
three counts.

The drug test in Section 15 does not cover

persons apprehended or arrested for any
unlawful act, but only for unlawful acts
listed under Article II of R.A. 9165.

First, "[a] person apprehended or arrested" cannot literally mean any person apprehended or arrested for any
crime.The phrase must be read in context and understood in consonance with R.A. 9165. Section 15 comprehends
persons arrested or apprehended for unlawful acts listed under Article II of the law.

Hence, a drug test can be made upon persons who are apprehended or arrested for, among others, the
"importation,"[9] "sale, trading, administration, dispensation, delivery, distribution and
transportation",[10] "manufacture"[11] and "possession"[12] of dangerous drugs and/or controlled precursors and
essential chemicals; possession thereof "during parties, social gatherings or meetings" [13]; being "employees and
visitors of a den, dive or resort";[14] "maintenance of a den, dive or resort";[15] "illegal chemical diversion of
controlled precursors and essential chemicals"[16]; "manufacture or delivery"[17] or "possession"[18] of equipment,
instrument, apparatus, and other paraphernalia for dangerous drugs and/or controlled precursors and essential
chemicals; possession of dangerous drugs "during parties, social gatherings or meetings" [19]; "unnecessary"[20] or
"unlawful"[21] prescription thereof; "cultivation or culture of plants classified as dangerous drugs or are sources
thereof";[22]and "maintenance and keeping of original records of transactions on dangerous drugs and/or
controlled precursors and essential chemicals."[23]To make the provision applicable to all persons arrested or
apprehended for any crime not listed under Article II is tantamount to unduly expanding its meaning. Note that
accused appellant here was arrested in the alleged act of extortion.

A charge for violation of Section 15 of R.A. 9165 is seen as expressive of the intent of the law to rehabilitate
persons apprehended or arrested for the unlawful acts enumerated above instead of charging and convicting them
of other crimes with heavier penalties. The essence of the provision is more clearly illustrated in People v.
Martinez[24]as follows:
On a final note, this Court takes the opportunity to be instructive on Sec. 11 (Possession of Dangerous Drugs) and
Sec. 15 (Use of Dangerous Drugs) of R.A. No. 9165, with regard to the charges that are filed by law enforcers. This
Court notes the practice of law enforcers of filing charges under Sec. 11 in cases where the presence of dangerous
drugs as basis for possession is only and solely in the form of residue, being subsumed under the last paragraph of
Sec. 11. Although not incorrect, it would be more in keeping with the intent of the law to file charges under Sec.
15 instead in order to rehabilitate first time offenders of drug use, provided that there is a positive confirmatory
test result as required under Sec. 15. The minimum penalty under the last paragraph of Sec. 11 for the possession
of residue is imprisonment of twelve years and one day, while the penalty under Sec. 15 for first time offenders of
drug use is a minimum of six months rehabilitation in a government center. To file charges under Sec. 11 on the
basis of residue alone would frustrate the objective of the law to rehabilitate drug users and provide them with an
opportunity to recover for a second chance at life.

In the case at bench, the presence of dangerous drugs was only in the form of residue on the drug paraphernalia,
and the accused were found positive for use of dangerous drugs. Granting that the arrest was legal, the evidence
obtained admissible, and the chain of custody intact, the law enforcers should have filed charges under Sec. 15,
R.A. No. 9165 or for use of dangerous drugs and, if there was no residue at all, they should have been charged
under Sec. 14 (Possession of Equipment, Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs
During Parties, Social Gatherings or Meetings). Sec. 14 provides that the maximum penalty under Sec.
12(Possession of Equipment, Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs) shall be
imposed on any person who shall possess any equipment, instrument, apparatus and other paraphernalia for
dangerous drugs. Under Sec. 12, the maximum penalty is imprisonment of four years and a fine of P50,000.00. In
fact, under the same section, the possession of such equipment, apparatus or other paraphernalia is prima
facie evidence that the possessor has used a dangerous drug and shall be presumed to have violated Sec. 15.

In order to effectively fulfill the intent of the law to rehabilitate drug users, this Court thus calls on law enforcers
and prosecutors in dangerous drugs cases to exercise proper discretion in filing charges when the presence of
dangerous drugs is only and solely in the form of residue and the confirmatory test required under Sec. 15 is
positive for use of dangerous drugs. In such cases, to afford the accused a chance to be rehabilitated, the filing of
charges for or involving possession of dangerous drugs should only be done when another separate quantity of
dangerous drugs, other than mere residue, is found in the possession of the accused as provided for in Sec. 15.
(Emphasis supplied)

Furthermore, making the phrase "a person apprehended or arrested" in Section 15 applicable to all persons
arrested or apprehended for unlawful acts, not only under R.A. 9165 but for all other crimes, is tantamount to a
mandatory drug testing of all persons apprehended or arrested for any crime. To overextend the application of this
provision would run counter to our pronouncement in Social Justice Society v. Dangerous Drugs Board and
Philippine Drug Enforcement Agency,[25]to wit:

x x x [M]andatory drug testing can never be random and suspicionless. The ideas of randomness and being
suspicionless are antithetical to their being made defendants in a criminal complaint. They are not randomly
picked; neither are they beyond suspicion. When persons suspected of committing a crime are charged, they are
singled out and are impleaded against their will. The persons thus charged, by the bare fact of being haled before
the prosecutor's office and peaceably submitting themselves to drug testing, if that be the case, do not necessarily
consent to the procedure, let alone waive their right to privacy. To impose mandatory drug testing on the accused
is a blatant attempt to harness a medical test as a tool for criminal prosecution, contrary to the stated objectives
of RA 6195. Drug testing in this case would violate a person's right to privacy guaranteed under Sec. 2, Art. III of
the Constitution. Worse still, the accused persons are veritably forced to incriminate themselves. (Emphasis
supplied)

The drug test is not covered by

allowable non-testimonial
compulsion.
We find that petitioner never raised the alleged irregularity of his arrest before his arraignment and raises the
issue only now before this tribunal; hence, he is deemed to have waived his right to question the validity of his
arrest curing whatever defect may have attended his arrest. [26] However, "a waiver of an illegal warrantless arrest
does not mean a waiver of the inadmissibility of evidence seized during an illegal warrantless arrest."[27]

We are aware of the prohibition against testimonial compulsion and the allowable exceptions to such proscription.
Cases where non-testimonial compulsion has been allowed reveal, however, that the pieces of evidence obtained
were all material to the principal cause of the arrest.

The constitutional right of an accused against self-incrimination proscribes the use of physical or moral compulsion
to extort communications from the accused and not the inclusion of his body in evidence when it may be material.
Purely mechanical acts are not included in the prohibition as the accused does not thereby speak his guilt, hence
the assistance and guiding hand of counsel is not required. (People vs. Olvis, 238 Phil. 513 [1987]) The essence of
the right against self-incrimination is testimonial compulsion, that is, the giving of evidence against himself through
a testimonial act. (People vs. Casinillo, 213 SCRA 777 [1992]; People vs. Tranca, 235 SCRA 455 [1994]; People vs.
Rondero, 378 Phil. 123 [1999]) Hence, it has been held that a woman charged with adultery may be compelled to
submit to physical examination to determine her pregnancy; (Villaflor vs. Summers, 41 Phil. 62 [1920]) and an
accused may be compelled to submit to physical examination and to have a substance taken from his body for
medical determination as to whether he was suffering from gonorrhea which was contracted by his victim;(U.S. vs.
Tan Teng, 23 Phil. 145 [1912]) to expel morphine from his mouth; (U.S. vs. Ong Siu Hong, 36 Phil. 735 [1917]) to
have the outline of his foot traced to determine its identity with bloody footprints; (U.S. vs. Salas, 25 Phil. 337
[1913]; U.S. vs. Zara, 42 Phil. 308 [1921]) and to be photographed or measured, or his garments or shoes removed
or replaced, or to move his body to enable the foregoing things to be done.(People vs. Otadora, 86 Phil. 244
[1950]) [28] (Emphasis supplied)

In the instant case, we fail to see how a urine sample could be material to the charge of extortion. The RTC and the
CA, therefore, both erred when they held that the extraction of petitioner's urine for purposes of drug testing was
"merely a mechanical act, hence, falling outside the concept of a custodial investigation."

We note a case where a urine sample was considered as admissible. In Gutang v. People,[29] the petitioner therein
and his companions were arrested in connection with the enforcement of a search warrant in his residence. A PNP-
NARCOM team found and confiscated shabu materials and paraphernalias. The petitioner and his companions in
that case were also asked to give urine samples, which yielded positive results. Later, the petitioner therein was
found guilty of the crime of illegal possession and use of prohibited drugs. Gutang claimed that the latter's urine
sample was inadmissible in evidence, since it was derived in effect from an uncounselled extrajudicial confession.

In the Gutang et al. case, the Court clarified that "what the Constitution prohibits is the use of physical or moral
compulsion to extort communication from the accused, but not an inclusion of his body in evidence, when it may
be material." The situation in Gutang was categorized as falling among the exemptions under the freedom from
testimonial compulsion since what was sought to be examined came from the body of the accused. The Court said:

This was a mechanical act the accused was made to undergo which was not meant to unearth undisclosed facts
but to ascertain physical attributes determinable by simple observation. In fact, the record shows that petitioner
and his co-accused were not compelled to give samples of their urine but they in fact voluntarily gave the same
when they were requested to undergo a drug test.

Assuming arguendo that the urine samples taken from the petitioner are inadmissible in evidence, we agree with
the trial court that the record is replete with other pieces of credible evidence including the testimonial evidence
of the prosecution which point to the culpability of the petitioner for the crimes charged.
We emphasize that the circumstances in Gutang are clearly different from the circumstances of petitioner in the
instant case. First, Gutang was arrested in relation to a drug case. Second, he volunteered to give his urine. Third,
there were other pieces of evidence that point to his culpability for the crimes charged. In the present case,
though, petitioner was arrested for extortion; he resisted having his urine sample taken; and finally, his urine
sample was the only available evidence that was used as basis for his conviction for the use of illegal drugs.

The drug test was a violation of

petitioner's right to privacy and
right against self-incrimination.

It is incontrovertible that petitioner refused to have his urine extracted and tested for drugs. He also asked for a
lawyer prior to his urine test. He was adamant in exercising his rights, but all of his efforts proved futile, because
he was still compelled to submit his urine for drug testing under those circumstances.

The pertinent provisions in Article III of the Constitution are clear:

Section 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable
searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or
warrant of arrest shall issue except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly
describing the place to be searched and the persons or things to be seized.

Section 17. No person shall be compelled to be a witness against himself.

In the face of these constitutional guarantees, we cannot condone drug testing of all arrested persons regardless
of the crime or offense for which the arrest is being made.

While we express our commendation of law enforcement agents as they vigorously track down offenders in their
laudable effort to curb the pervasive and deleterious effects of dangerous drugs on our society, they must,
however, be constantly mindful of the reasonable limits of their authority, because it is not unlikely that in their
clear intent to purge society of its lawless elements, they may be knowingly or unknowingly transgressing the
protected rights of its citizens including even members of its own police force.

WHEREFORE, premises considered, the assailed Decision dated 22 June 2011 issued by the Twentieth Division,
and the Resolution dated 2 February 2012 issued by the former Twentieth Division of the Court of Appeals, in CA-
G.R. C.R. No. 00670 are SET ASIDE. Petitioner is hereby ACQUITTED.

SO ORDERED.

FIRST DIVISION

[G.R. Nos. 118736-37. July 23, 1997]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. TANG WAI LAN @ TANG, accused-appellant.

DECISION
PADILLA, J.:

Accused-appellant Tang Wai Lan also known as Tang, was charged with transporting methamphetamine
hydrochloride, commonly known as shabu in an information dated 3 December 1991 as follows:

That on or about the 28th day of November 1991, at about 1:00 oclock in the afternoon at Ninoy Aquino
International Airport, Pasay City, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused did then and there, wilfully, unlawfully and feloniously transport without lawful authority 5.5 kilograms,
more or less, of Metamphetamine Hydrochloride, a regulated drug commonly known as shabu.

CONTRARY TO LAW.[1]

On the same date, Chung Wai Chi Elaine also known as Elaine was likewise charged for transporting the same
amount of shabu in similarly worded information.[2]
Both cases (Criminal Case No. 91-1960 against Tang and Criminal Case No. 91-1961 against Elaine) were filed
on 12 December 1991 and raffled to the Regional Trial Court, Branch 108, Pasay City.
A series of incidents, including the burning of the records of the cases in the fire which burned the Pasay City
Hall on 18 January 1992, the reconstitution of the records, motions for reinvestigation and voluntary inhibition
filed by the accused and a decision by the Court of Appeals dated 30 September 1992 ordering that the criminal
cases against the accused be re-raffled to another branch of the Pasay City Regional Trial Court, caused the
transfer of the cases to two (2) other branches before they finally ended up in Branch 114 of the Regional Trial
Court of Pasay City where a decision* dated 14 November 1994 was rendered, the dispositive part of which reads:
WHEREFORE, the Court finds the accused Tang Wai Lan Candy (C.C. No. 91-1960), guilty beyond
reasonable doubt, as principal, for Viol. of Sec. 15, Art. III, R.A. 6425, as amended and sentences her to a
penalty of life imprisonment and to pay a fine of P20,000.00 and to pay the costs. Additional penalty of
summary deportation for aliens under the provision of Sec. 22, R.A. 6425, is likewise imposed. The
specimen (Exhs. E to N) consisting of ten (10) packages of Methamphetamine Hydrochloride or shabu
weighing eleven (11) kilos are hereby declared forfeited in favor of the Government and ordered
immediately turned-over to the Dangerous Drugs Board for immediate legal disposition. Accused Chung
Wai Chi Elaine (C.C. No. 91-1961 is hereby declared not guilty of the crime charged. The jail Warden,
Pasay City Jail, is hereby ordered to immediately release the said Chung Wai Chi Elaine unless there are
other valid causes or reasons that require her further incarceration.
Let a commitment order issue transferring the custody of accused Tang Wai Lan Candy to the
Correctional Institution For Women, at Mandaluyong City.

SO ORDERED.[3]

The case for the prosecution shows that on 28 November 1991, Bureau of Customs Examiners Lilibeth
Cataquiz-Bonifacio and Carolina Magay-Dofitas were at their assigned posts at Customs Lane No. 4 at the arrival
area of the Ninoy Aquino International Airport (NAIA). Philippine Airlines (PAL) flight PR 301 had just arrived and
the two (2) examiners were busy conducting the mandatory customs inspection of the baggages of arriving
passengers.
Accused-appellant Tang Wai Lan was required by Ms. Bonifacio to present her passport, plane tickets,
boarding pass, claim tags and baggage declaration following the usual procedure for all arriving passengers. Ms.
Bonifacio testified that accused-appellant presented the necessary documents and handed to her luggage which
included a blue travelling bag for customs inspection. While inspecting the travelling bag, Ms. Bonifacio noticed
what appeared to be a false bottom. This prompted her to call a customs appraiser who then ordered the bag
brought to the customs collectors office for a more thorough examination.
 The false bottom of the bag was then forced open and concealed therein were five (5) plastic packages
containing what later turned out to be Methamphetamine Hydrochloride or shabu, a regulated drug, weighing a
total of approximately 5.5 kilograms.
Ms. Dofitas, meanwhile, was conducting the same customs inspection on the travel documents and baggage
of Chung Wai Chi Elaine. Ms. Dofitas noticed that a blue bag similar to that of accused-appellant Tang also seemed
to have a false bottom. The bag was likewise brought to the customs collectors office and further inspection
uncovered five (5) plastic packages of the same regulated drug also weighing about 5.5 kilograms.
Accused-appellant Tang Wai Lan and Chung Wai Chi Elaine denied knowledge of the contents of the bags.
The white powder in the ten (10) packages were field tested by customs agents Mariano Bihag, Jr. and
Rosario Jomillon. The results of the tests indicated that the contents of the plastic packages were indeed shabu.
The plastic packages and contents were then turned over to the Narcotics Command (NARCOM) at Camp
Crame, Quezon City where said contents were again tested by forensic chemist Inspector Elizabeth Ayanon and
verified to be methamphetamine hydrochloride (shabu).
On the other hand, the two (2) accused had their respective alibis as follows:

a) Chung Wai Chi Elaine testified that she was invited to the Philippines by a certain Craig Burrows, Chairman of the
Asean Student Christian Foundation. She testified that she works as an interviewer in the Survey Research Hong
Kong, Ltd. She boarded PAL Flight PR 301 from Hong Kong on 28 November 1991 and had only a shoulder bag
without any other luggage. She came to know accused-appellant Tang only when she sat next to her on the flight
to Manila. Tang Wai Lan introduced her to a certain Cheung Yiu Keung. She further testified that she only acted as
interpreter for accused-appellant Tang at the airport since the latter could not speak English. She (Elaine) was in
fact met at the airport by Craig Burrows.

b) Tang Wai Lan for her defense testified that she sells ready-to-wear clothes from Hong Kong to buyers in the
Philippines. She was introduced to said business by Cheung Yiu Keung and his two (2) friends, a certain Yeung Man
Chin and another whom she knew only as Achi.

On 28 November 1991, she boarded PAL flight PR 301 from Hong Kong with Cheung Yiu Keung and his two (2)
friends. When they disembarked at the NAIA, Cheung Yiu Keung asked her to load his two (2) blue bags in her
trolley and lined up for customs inspection together with Yeung Man Chin. The latter left the line for customs
inspection presumably to look for Achi. She saw Cheung Yiu Keung talking to the customs examiner but she could
not understand their conversation which was in English. The customs examiner then discovered the false bottom
of the two (2) blue bags and she (Tang) and Cheung Yiu Keung was when she was brought to an office. The last
time she saw Cheung Yiu Keung was when she was brought separate room where she saw Chung Wai Chi
(Elaine). She affirms that Chung Wai Chi never met Cheung Yiu Keung prior to the flight to Manila.
In her appeal before this Court, accused-appellant Tang Wai Lan through counsel assigns the following errors
allegedly committed by the trial court in convicting her:

IV. ASSIGNMENT OF ERRORS

I. THAT THE TRIAL COURT ERRED IN HOLDING THAT SHABU WAS FOUND IN POSSESSION OF
APPELLANT DESPITE THE ABSENCE OF CONCLUSIVE CONFIRMATORY LABORATORY TESTS
CONDUCTED THEREON.
II. THAT THE TRIAL COURT ERRED IN CONCLUDING THAT APPELLANT HAD GUILTY KNOWLEDGE OF
THE ALLEDGED SHABU FOUND IN ONE OF TWO LUGGAGES NOT BELONGING TO HER, ONE OF
WHICH WAS CHECKED IN HER NAME BY THE SUSPECTS TAGGED BY THE POLICE AS THE
ACTUAL MALEFACTORS WHO GOT AWAY.
 III. THAT THE TRIAL COURT ERRED IN CONSTRUING APPELANTS DECLARATION THAT HER CO-
ACCUSED HAD NOTHING TO DO WITH THE OTHER LUGGAGE CONTAINING THE ALLEGED
SHABU AS A CONFESSION OF HER SOLE CULPABILITY.
IV. THAT THE TRIAL COURT ERRED IN ASSIGNING RESPONSIBILITY TO APPELLANT FOR ALL THE TEN
PACKS OF ALLEGED SHABU.

V. THAT THE TRIAL COURT ERRED IN FINDING APPELLANT GUILTY FOR THE OFFENSE CHARGED.[4]

Accused-appellant argues that the substances contained in the two (2) plastic packages were not proven to
be shabu. It is contended that the laboratory tests conducted to verify the nature of the white, crystalline powder
contained in the false bottoms of the two (2) blue bags were unreliable, incomplete and far from extensive.
On this issue, accused-appellant fails to negate the presumption of regularity in the performance of official
duties. The testimony of Elizabeth Ayonon, Forensic Chemist of the Philippine National Police (PNP) Crime
Laboratory, which accused-appellant even quotes in her brief files with this Court, clearly shows that the
substances was indeed shabu.
Neither can it be successfully argued that a specific test should have been conducted since Ayonon had
testified to the reliability of the test she conducted as follows:
ATTY. IFURUNG:
Q. Did you conduct the thin layer chromatography (TLC) test on this specimen?
A. No, only the infrared.
Q. Would you say that his layer chromatography test is a reliable test?
A. It has the same reliability as the infra-red.
Q. Did you or did you not conduct the thin layer chromatography examination?
A. No sir.[5]
That the white powder taken from the two (2) blue bags was indeed shabu is thus beyond question.
Accused-appellant then argues that the tests were not done for the entire amount of drugs allegedly found
inside the bags. It is suggested that since the law, Republic Act no. 7659, imposes a penalty dependent on the
amount or quantity of drugs seized or taken, then laboratory tests should be undertaken for the entire amount or
quantity of drugs seized in order to determine the proper penalty to be imposed.
The argument is quaint and even borders on being ridiculous.
In the present case, even assuming that the confirmatory tests were conducted on samples taken from only
one (1) of the plastic packages, accused-appellants arguments must still fail.
It will be recalled that each of the plastic packages weighed 1.1 kilograms, an amount more than sufficient to
justify imposing the penalty under Sec. 14 of Rep. Act no. 6425 as amended by Rep. Act 7659. A sample taken from
one (1) of the packages is logically presumed to be representative of the entire contents of the package unless
proven otherwise by accused-appellant. Therefore, a positive result for the presence of drugs is indicative that
there is 1.1 kilogram of drugs in the plastic package from which the sample was taken.If it is then proved, beyond
reasonable doubt, as will be discussed later, that accused-appellant transported into the Philippines the plastic
packages from which samples were taken for tests, and found positive as prohibited drugs, then conviction for
importing shabu is definitely in order.
Accused-appellant then questions the qualifications of PNP Forensic Chemist Elizabeth Ayonon to conduct
tests for the presence of shabu.
 On this issue, The Solicitor General correctly points out that the competence of Ayonon has been adequately
established for she had conducted about one thousand (1,000) previous tests for the presence of
methamphetamine hydrochloride. It should be noted that accused-appellant erroneously argues that Ayonons lack
of any masteral or doctoral degree in any field of chemistry precludes her from testifying as an expert witness. The
Court is not unaware that the test conducted for the presence of shabu (infrared test) is a relatively simple test
which can be performed by an average or regular chemistry graduate. There is no evidence in this case to show
that the positive results for the presence of methamphetamine hydrochloride (shabu) are erroneous. Thus,
coupled with the undisputed presumption that official duty has been regularly performed, said results adequately
establish that the white crystalline powder found in the false bottom of the two (2) travelling bags was indeed the
regulated and/or prohibited drug commonly known as shabu.
On the issue raised by the appellant that she was merely an innocent courier of the shabu, accused-appellant
argues that even in crimes which are mala prohibita, the State has to prove that possession or importation of
shabu, as in this case, was with the knowledge of the accused. It is contended that since the prosecution has failed
to prove that accused-appellant knew that shabu was inside the false bottom of the travelling bag and that
accused-appellant was the owner of said bag, the constitutional presumption of innocence in favor of the accused
has not been overcome by proof beyond reasonable doubt.
We disagree with accused-appellants ratiocinations.
It is not disputed that the luggage tag attached to the travelling bag found to contain shabu had the name of
accused-appellant Tang Wai Lan. It is also undisputed that said travelling bag was submitted for customs inspection
together with accused-appellants other luggage. The allegation of accused-appellant that the travelling bag
actually belonged to a certain Cheung Yiu Keung and his two (2) other companions and that it was Cheung who
caused her name to be affixed on the luggage tag attached to the bag is a much too simple and convenient alibi to
instill belief. If said allegation were true, accused-appellant, an admittedly experienced traveller and friend of
Cheung, could have easily pleaded her case before the customs authorities since Cheung was likewise asked to
undergo a more thorough customs examination and body search. [6]
In the recent case of People v. Burton,[7] the Court pointed out that an explanation, standing by itself, which is
too trite and hackneyed to be accepted at its face value, since it is obviously contrary to human experience is
insufficient to overcome prima facie evidence that accused had knowledge of his possession of prohibited drugs.
All told, the Court finds that the prosecution, through the testimony of Customs Examiner Lilibeth Bonifacio,
has adequately proved that accused-appellant Tan Wai Lan was the person who presented for customs inspection
on 28 November 1991 the blue travelling bag with a luggage tag bearing her name and found to contain
shabu. She is thus presumed to be the owner thereof unless proven otherwise. The crime of transporting shabu, a
regulated drug, being mala prohibita, the accused-appellants intent, motive, or knowledge thereof need not be
shown.[8] The crime is complete when it is shown that a person brings into the Philippines a regulated drug without
legal authority. Besides, as previously discussed, there is prima facie evidence that accused-appellant Tang Wai Lan
had knowledge of her possession of shabu.
In enacting laws relating to the sale, distribution, transport and use of regulated drugs, Congress had to resort
to drastic measures to effectively control societys chronic diseases drug pushing, drug addiction and drug
dependence.
Indeed, the ingenuity of those engaged in the illegal drug trade may often seem to have defeated and
overtaken the effectiveness of legislation. Hence, the need for laws which provide prospective measures which do
not depend on proof of criminal intent or knowledge. Said measures may, in the opinion of some, be quite harsh
but then extraordinary evils demand extraordinary remedies.
WHEREFORE, based on the foregoing, the judgment appealed from is hereby AFFIRMED.
SO ORDERED.
 SECOND DIVISION

[ G.R. No. 103295, August 20, 1993 ]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ROLANDO SALAMAT Y DE GUZMAN, ACCUSED-APPELLANT.

DECISION

REGALADO, J.:

Accused-appellant Rolando Salamat, alias "Tolits," alias "Mr. T," was charged in three separate informations with
the following offenses: (1) illegal possession of methamphetamine hydrochloride, a regulated drug commonly
known as shabu, in violation of Section 16, Article III of Republic Act No. 6425, docketed as Criminal Case No.
10528-MN; (2) engaging in the unlawful sale of shabu in violation of Section 15, Article III of the same law,
and docketed as Criminal Case No. 10529-MN; and (3) illegal possession of firearms and ammunition under
Criminal Case No. 10530-MN.

On August 22, 1991, appellant moved to quash the information in Criminal Case No. 10528-MN on the ground that
the offense charge therein, that of illegal possession of a regulated drug, is absorbed in and is necessarily included
as an element of the offense of unlawful sale of such regulated drug for which accused likewise stands charged.
The resolution of the motion was deferred by the trial court until such time when all the evidence for the three
cases shall have been adduced.

During the arraignment, appellant pleaded not guilty to all the charges against him, after which the three cases
were tried jointly by the court.

In a joint decision dated November 29, 1991, the court a quo rendered judgment[1] with this decretal portion:

"WHEREFORE, premises considered, judgment is hereby rendered finding accused Rolando Salamat y De Guzman
alias Tolits alias Mr. T:

1. Not guilty in Crim. Case No. 10528-MN for a Violation of Sec. 16, Art. III, R.A. 6425 for (sic) which he is hereby
accordingly acquitted. This disposes of the motion to quash filed by the accused in this particular case ruling on
which was reserved by the Court until such time as all the evidence in these cases shall have been adduced;

2. Guilty beyond reasonable doubt in Crim. Case No. 10529-MN for (sic) a Violation of Sec. 15, Art. III, R.A. 6425.
Said accused is hereby accordingly sentenced to life imprisonment, or reclusion perpetua, together with all the
accessory penalties thereof and to pay a fine of P20,000.00;

3. Not guilty of the accusation against him in Crim. Case No. 10530-MN for Illegal Possession of Firearm and
Ammunitions.

Costs against the accused in Crim. Case No. 10529-MN only.

SO ORDERED."

The evidence for the prosecution shows that on July 18, 1991, Cpl. Eddie Regalado of the Anti-Narcotics Unit of the
Malabon Police Station received information from their confidential informant that there was shabu in the house
of a certain Rolando Salamat. On the basis thereof, Cpl. Regalado, together with Pat. Alberto Nepomuceno, applied
for and was subsequently issued a search warrant by Judge Amanda Valera-Cabigao on the same day.[2]

On July 22, 1991, at around 7:00 A.M., a police team composed of Cpl. Eddie Regalado, Pats. Nepomuceno,
Guevarra, Galang, Sales and Olog, accompanied by the confidential informant, proceeded to the house of the
suspect, herein appellant Rolando Salamat, at No. 127 Interior Sanciangco Street, Catmon, Malabon in order to
effect service of the search warrant.[3]

A buy-bust operation was first conducted with Pat. Nepomuceno acting as poseur-buyer in the company of the
confidential informant. While the two were walking towards the house, they were met by appellant who was then
coming out of the house. Pat. Nepomuceno testified that appellant already knew him because he had on two
occasions previously bought shabu from the latter as part of the surveillance being then conducted on appellant's
illegal activities. When the accused approached them, Pat. Nepomuceno told him "tatlong piso lang pare," which
means that he was buying P300.00 worth of shabu. Appellant went inside the house and came back a few minutes
thereafter and handed over the shabu to Pat. Nepomuceno who paid appellant with the P300.00 marked bills.
After examining the suspected shabu, Pat. Nepomuceno lighted his cigarette as a pre-arranged signal to his
companions, then around ten meters away, to move in.[4]

However, appellant resisted arrest and was able to run inside the house and lock himself inside. The raiding team
introduced themselves as policemen but were instead met with gunshots coming from the house. At about the
same time, the policemen saw several men coming from the back of the house and running towards a place called
Palmario. Thereafter, when the policemen gave an order for him to surrender, appellant came out of the house
and threw a gun on the ground. Sgt. Guevarra immediately took the gun while Pat. Nepomuceno handcuffed
appellant. The policemen showed the search warrant to appellant who merely kept silent. [5]

There were two houses searched by the policemen, the first of which is located at 127 Sanciangco Street where
appellant was apprehended and another located at 139 Interior Sanciangco Street which is around twenty meters
away from the first house. As a result of the search made, the police were able to confiscate ten packets
of shabu contained in an eyeglass container and several paraphernalia from the first house, and three packets
of shabu and additional paraphernalia from the second house,[6] as well as a copy of a search warrant issued
against one Susana Ignacio and a receipt for the items seized from her.

The receipts for the items seized from the two houses[7] were signed by Barangay Captain Florentino Cruz who was
present during the search. The common-law wife of appellant, Marilou Salamat, also signed the receipt for the
items taken from the second house at 139 Interior Sanciangco Street.[8] Appellant was duly furnished copies of the
receipts by the policemen.

Appellant was then brought to the police station where he was investigated and subsequently detained. The items
confiscated as a result of the search and the buy-bust operation were turned over to the NBI Forensic Chemist who
subsequently issued a report with the finding that the specimens submitted for examination were positive for
methamphetamine hydrochloride, or shabu.[9]

On the other hand, appellant testified that in the morning of July 22, 1991, he was in the house of Rolando
Cabangis at 127 Interior Sanciangco Street, Catmon, Malabon, where he was examining a ring which Cabangis was
selling to him, when he heard gunshots outside. When he went out of the house, he was suddenly grabbed by Pat
Nepomuceno and later brought to the police station together with Cabangis. He was informed of the charges
against him only after he was detained at the police station. [10] The following day, only Cabangis was released from
jail. It was his wife, Marilou, who told him that the policemen searched their house.

Appellant denies that he sold shabu to Pat. Nepomuceno and claims that maybe the reason why he was so
charged was because the father of Pat. Nepomuceno previously filed a case against him for robbery in band but
the same was subsequently dismissed.[11] He also denies that the shabu and paraphernalia confiscated by the
police from his house belongs to him. He contends that the signature of Marilou Solis Salamat appearing on one of
the receipts, marked in evidence as Exhibit C, is not her true signature. While he admits that there are several
pushers in their place, appellant denies that he is a pusher. He, however, admits that he knows the house of
Cabangis at 127 Interior Sanciangco Street is often used for "jamming" or "pot sessions" whenever the latter is not
around.[12]
Marilou Salamat testified that no search warrant was presented to her when the police searched the house at 139
Interior Sanciangco Street, and denies that she signed a receipt for the items confiscated therefrom. She also
denies that the signature over the typewritten name of Marilou Solis Salamat appearing in Exhibit C belongs to her.
On rebuttal, however, Cpl. Regalado declared that he was present when the search warrant was presented to
Marilou Salamat by Sgt. Guevarra and when she signed Exhibit C in the presence of the barangay captain and the
father of appellant.[13]

On appeal before us is only that portion of the judgment of the trial court finding herein appellant guilty beyond
reasonable doubt of a violation of Section 16, Article III of Republic Act No. 6425 for unlawful sale of a regulated
drug. Since appellant has been acquitted of the offense of illegal possession of a regulated drug and of firearms
and ammunitions, we deem it unnecessary to dwell on the issue raised by appellant anent the validity of the
search warrant used in this case considering that it was for the charge of illegal possession of prohibited drugs and
paraphernalia, of which appellant was acquitted in Criminal Case No. 10528-MN, that the evidence obtained
pursuant thereto was offered. We shall nonetheless discuss hereafter the propriety of appellant's acquittal in said
case.

The main contention of appellant in the case at bar actually hinges on the credibility of the testimony of Pat.
Nepomuceno. If it were true that Pat. Nepomuceno did buy shabu from him on two occasions prior to the incident
subject of this case, appellant then contends that (1) it was improbable for Pat. Nepomuceno not to have
remembered the exact dates when he previously bought shabu from appellant; (2) the testimony of said witness
that he did not know appellant prior to July 22, 1991 is not true; (3) it is highly questionable why
the shabuallegedly bought from appellant on those two occasions were not presented before the court; and (4) it
is surprising why the witness had a hard time describing and identifying the house subject of the search warrant.

Furthermore, appellant would make capital of the fact that since he has known Pat. Nepomuceno as a policeman
for almost five years, it was unlikely and highly improbable for him to sell shabu to the latter. Besides, he adds, the
fact that Pat. Nepomuceno is the son of Col. Nepomuceno who filed a case against appellant, but which case was
later dismissed, is sufficient basis to cast doubt on the motives of Pat. Nepomuceno in implicating him in the
aforestated charges.

Clearly, the issues raised are factual and involve the credibility of the witnesses, a matter addressed to the trial
court because it is in a better position to decide such questions, having heard the witnesses and observed their
deportment and manner of testifying during the trial. Hence, to once again reiterate an entrenched doctrine, its
findings on the credibility of witnesses are entitled to the highest degree of respect and will not be disturbed on
appeal in the absence of any clear showing that the trial court overlooked, misunderstood or misapplied some
facts or circumstances of weight and substance which would have affected the result of the case.[14] That absence
is onlyall too evident in the instant case.

In the first place, the testimony of appellant consists merely of denials without any other evidence to sustain his
claim and defense. We have consistently ruled that denials if unsubstantiated by clear and convincing evidence are
negative, self-serving evidence which deserve no weight in law and cannot be given greater evidentiary weight
over the testimony of credible witnesses who testify on affirmative matters. As between the positive declarations
of the prosecution witness and the negative statements of an accused, the former deserves more credence.[15]

Next, the alleged failure of prosecution witness Pat. Nepomuceno to remember the exact dates when he
previously bought shabu from appellant is too trivial an omission as could cast doubt on his credibility.
Discrepancies and inconsistencies in the testimonies of witnesses referring to minor details, and not upon the basic
aspects of the crime, do not impair their credibility.[16] Contradictions on minor or trivial details are not unnatural
and are normally considered as enhancing, rather than debilitating, the testimony of a witness.[17]Moreover,
credence is generally accorded to the testimonies of prosecution witnesses who are enforcers of the law as they
are presumed to have performed their duties in a regular manner, more so where, as in this case, appellant has
opted to invoke the inherently weak and standard defense of denial. It is axiomatic, under the rules of evidence,
that said defenses cannot prevail when arrayed against the positive testimonies of prosecution witnesses.[18]
The fact that appellant has known the poseur-buyer as a policeman for almost five years cannot be considered as a
strong deterrent which would prevent the former from entering into illegal transactions with the latter. As this
Court has noted many times, drug pushers have become increasingly daring in the operation of their illicit trade
and have not hesitated to act openly, almost casually and even in scornful violation of the law, in selling prohibited
drugs to any and all buyers.[19] In real life, pushers, especially small-quantity or retail pushers, sell their prohibited
wares to customers, be they strangers or not, who have the price of the drug, and this fact the Court has
recognized.[20] Besides, it will be noted that Pat. Nepomuceno had on two occasions bought shabu from appellant
as part of a test-buy operation which was primarily intended to gain appellant's confidence.

Lastly, appellant would like to impute ill motives to Pat. Nepomuceno in testifying against him. Such allegation is
nothing more than a desperate effort on the part of appellant to exculpate himself from liability. We have said that
motive is important when the identity of an accused is in doubt, but when the perpetrator has been positively
identified, as in this case, even discounting such motive there is enough evidence to convict
appellant.[21] Furthermore, there is nothing in the record to suggest that the police officers were induced by any
motive other than to accomplish their mission to capture a drug pusher in the execution of the crime, the
presumption being that police officers perform their duties regularly in the absence of any evidence to the
contrary.[22]

We now digress, as earlier indicated, to make our observations on the acquittal of appellant in Criminal Case No.
10528-MN where he was charged with the illegal "possession, custody and control" of thirteen packets of
methamphetamine hydrochloride, separately from the sale of said regulated drug worth P300,00 charged in
Criminal Case No. 10529-MN. In acquitting appellant in the first case, the court below made the following
ratiocination:

"The Court, however, is not inclined to sustain the charge of illegal possession of additional shabu and
paraphernalia to facilitate its sale and consumption. A trader, whether he be legal or illegal, is expected to have
stocks of his me(r)chandise ready at all times to be sold to prospective buyers. The seller or trader cannot be held
liable anymore for the possession of these stock."[23]

We are taken back by this reasoning, not only because we find it absurd and illogical, but because of its total
disregard of the holding in U.S. vs. Look Chaw,[24] handed down as early as 1911 and which has stood the test of
time with its recent reiterations by this Court;[25]and we are intrigued how these cases have escaped the attention
of the lower court and have been glossed over sub silentio by the Solicitor General. We, therefore, deem it
necessary to reproduce the pertinent pronouncements in said case.

"True it is, we assert, that it is one crime to possess opium, punished by section 31 of the Act, and another, to sell
opium, penalized by section 5 of the same Act before cited.

"And it is also true that when one single act constitutes two or more crimes, or when one of them is a necessary
means for the commission of the other, only the penalty corresponding to the more serious crime shall be imposed
in its maximum degree, x x x."

"But the illegal possession of 137 cans of opium and the illegal sale of 30 cans of opium, which are the two acts
confessed by the accused, are not one act which constitutes two crimes, nor a crime which is a necessary means
for the commission of another. They are two isolated acts, punishable, each of them, in themselves. Only in the
event where all the amount of the opium possessed and seized be in its totality the same as that which was
possessed with the sole purpose of being delivered as the matter or subject of a sale previously agreed upon, could
it be said, in the opinion of this court, that the possession of the opium was a necessary means to effect the delivery
by reason of the sale, and that the sale agreed upon was the sole reason for the possession of the opium seized. x x
x." (Emphasis supplied.)

Of course, with the acquittal of appellant for his illegal possession of shabu, albeit distinct from that which he sold
in the buy-bust operation, he may no longer be proceeded against for the first offense. Propitiously, he was
correctly convicted of the crime of selling a small part of the shabu in his possession. It would have
been interesting to see how the theory adopted by the trial court would have fared if appellant had also been
acquitted of the charge of selling such drug. Hence, we direct our trial courts to take particular note of this
clarificatory emphasis on the matter, to avoid another miscarriage of justice with its consequent setback to the
operose campaign against dangerous drugs in this country.

One final observation. We are here again confronted with a case where the penalty imposed by the trial court is
"life imprisonment, or reclusion perpetua, together with all the accessory penalties thereof." In Administrative
Circular No. 6-92 issued by this Court on October 12, 1992, as amended by Administrative Circular No. 6-A-92
dated June 21, 1993, all judges of the regional trial courts, inter alia, were specifically enjoined to be more
circumspect in the proper imposition of the penalties of life imprisonment and reclusion perpetua.

In view of the gaffes which continue to reach us on appeal, as in the case at bar, we are constrained to quote this
excerpt from said circular for guidance and strict compliance:

"As noted from the dispositive portion of the challenged decision, the trial court imposed the penalty of reclusion
perpetua orlife imprisonment. Evidently, it considered the latter as the English translation of the former, which
is not the case. Both are different and distinct penalties. In the recent case of People vs. Baguio, (April 30, 1991,
196 SCRA 459), this Court held:

'The Code (Revised Penal code) does not prescribe the penalty of life imprisonment for any of the felonies therein
defined, that penalty being invariably imposed for serious offenses penalized not by the Revised Penal Code but by
special law. Reclusion perpetua entails imprisonment for at least thirty (30) years after which the convict becomes
eligible for pardon. It also carries with it accessory penalties, namely: perpetual special disqualification, etc. It is
not the same as 'life imprisonment' which, for one thing, does not carry with it any accessory penalty, and for
another, does not appear to have any definite extent or duration.'

"As early as 1948, in People vs. Mobe, reiterated in PP vs. Pilones and in the concurring opinion of Justice Ramon
Aquino in People vs. Sumadic, this Court already made it clear that reclusion perpetua is not the same as
imprisonment for life or life imprisonment. Every judge should take note of the distinction and this Court expects
that, henceforth, no trial judge should mistake one for the other."

Considering that a violation of Section 15, Article III of Republic Act No. 6425, of which appellant has been found
guilty, carries a penalty of life imprisonment, the decretal portion of the trial court's decision subject of the present
appeal should necessarily be, as it is hereby, modified.

WHEREFORE, the assailed judgment of the court a quoin Criminal Case No. 10529-MN is hereby AFFIRMED in
toto, subject to the MODIFICATION that the phrase "or reclusion perpetua, together with all the accessory
penalties thereof" in paragraph 2 of the decretal portion therein is hereby DELETED.

SO ORDERED.

EN BANC

[ G.R. No. 139615, May 28, 2004 ]

PEOPLE OF THE PHILIPPINES, APPELLEE, VS. AMADEO TIRA AND CONNIE TIRA, APPELLANTS.

DECISION
CALLEJO, SR., J.:

This is an appeal of the Decision[1] of the Regional Trial Court of Pangasinan, Branch 46, finding appellants Amadeo
Tira and Connie Tira guilty beyond reasonable doubt of violating Section 16, in relation to Section 20, Article III of
Republic Act No. 6425, known as the Dangerous Drugs Act of 1972, as amended by Rep. Act No. 7659, sentencing
each of them to suffer the penalty of reclusion perpetua and ordering each of them to pay a fine of P1,000.000.[2]

The Indictment

The appellants Amadeo Tira and Connie Tira were charged in an Information which reads:

That on or about March 9, 1998, in the Municipality of Urdaneta, province of Pangasinan and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring together, did then and there willfully,
unlawfully and feloniously have in their possession, control and custody the following:

- Three (3) (sic) sachets of shabu

- Six (6) pieces opened sachets of shabu residue
- One (1) brick of dried marijuana leaves weighing 721 grams
- Six disposable lighter
- One (1) roll Aluminum Foil
- Several empty plastics (tea bag)
Cash money amounting to P12,536.00 in different denominations believed to be proceeds of the
-
contraband.

without first securing the necessary permit/license to possess the same.

CONTRARY to SEC. 8 in relation to Sec. 20 of RA 6425, as amended.[3]
The Case for the Prosecution[4]

In the evening of February 24, 1998, SPO3 Asidelio Manibog received a verbal instruction from the Chief of Police
Superintendent Wilson R. Victorio to conduct surveillance operations on the house of Amadeo Tira and Connie Tira
at Perez Extension Street because of reported rampant drug activities in the said area. Manibog formed a team
composed of SPO1 Renato Cresencia, PO3 Reynaldo Javonilla, Jr. and PO3 Efren Abad de Vera to conduct the
ordered surveillance.

At around 8:00 p.m., the group, clad in civilian clothes, arrived at Perez Extension Street. As they stationed
themselves in the periphery of a store, they observed that more than twenty persons had gone in and out of the
Tira residence. They confronted one of them, and asked what was going on inside the house. The person revealed
that Amadeo Tira sold shabu, and that he was a regular customer. The group went closer to the house and started
planning their next move. They wanted to pose as buyers, but hesitated, for fear of being identified as PNP
members. Instead, they stayed there up to 12:00 midnight and continued observing the place. Convinced that
illegal activities were going on in the house, the policemen returned to the station and reported to P/Supt. Wilson
R. Victorio. After hearing their report, P/Supt. Victorio instructed his men to make an affidavit of surveillance
preliminary to an application for a search warrant.[5]

On March 6, 1998, SPO3 Asidelio Manibog, PO3 Efren Abad de Vera, SPO1 Renato Cresencia and PO2 Reynaldo
Soliven Javonilla, Jr. executed an Affidavit of Surveillance, alleging, inter alia, that they were members of the Drug
Enforcement Unit of Urdaneta, Pangasinan, and that in the evening of February 24, 1998, they confirmed reports
of illegal drug-related activities in the house of the spouses Amadeo and Connie Tira. [6] On March 6, 1998[7] Police
Chief Inspector Danilo Bumatay Datu filed an Application for a Search Warrant in the Municipal Trial Court of
Urdaneta, Pangasinan, attaching thereto the affidavit of surveillance executed by his men and a sketch of the place
to be searched.[8]
Satisfied with the testimonies of SPO3 Manibog, PO3 de Vera, SPO1 Cresencia and PO2 Javonilla, Jr., Judge Aurora
A. Gayapa issued a search warrant commanding the applicants to make an immediate search of the Tira residence
at anytime of the day or night, particularly the first room on the right side, and the two rooms located at Perez
south, and forthwith seize and take possession of the following items:

1. Poor Man's Cocaine known as Shabu;

2. Drug-Usage Paraphernalia; and
3. Weighing scale.[9]

P/Sr. Inspector Ludivico Bravo, and as head of the team, with SPO3 Cariaga, PO3 Concepcion, Cariño, Galima,
Villaroya, Andaya, SPO1 Mario Tajon, SPO1 Asterio Dismaya, SPO1 Renato Cresencia, and PO3 Reynaldo Javonillo
were directed to implement the search warrant.[10] They responded and brought Barangay Kagawad Mario Conwi
to witness the search.[11] At 2:35 p.m. on March 9, 1998, the team proceeded to the Tira residence. The men found
Ernesto Tira, the father of Amadeo, at the porch of the house. They introduced themselves and told Ernesto that
they had a warrant authorizing them to search the premises. Ernesto led them inside. The policemen found the
newly awakened Amadeo inside the first room[12] of the house.[13] With Barangay Kagawad Conwi and Amadeo
Tira, the policemen proceeded to search the first room to the right (an inner room) and found the following under
the bed where Amadeo slept:[14]

1. 9 pcs. suspected methamphetamine hydrochloride placed in heat-sealed transparent plastic sachets

2. roll aluminum foil
3. several empty plastic transparent
4. used and unused aluminum foil[15]
5. disposable lighters
6. 1 sachet of shabu confiscated from Nelson Tira[16]

They also found cash money amounting to P12,536 inside a shoulder bag placed on top of the television, in the
following denominations:

1 pc. -P1,000.00 bill

4 pcs. - 500.00 bill
52 pcs. - 100.00 bill
36 pcs. - 50.00 bill
100 pcs. - 20.00 bill
53 pcs. - 10.00 bill
1 pc. - 5.00 bill
1 pc. - 1.00 coin[17]
The policemen listed the foregoing items they found in the house. Amadeo's picture was taken while he was
signing the said certification.[18] Ernesto (Amadeo's father), also witnessed the certification.

A joint affidavit of arrest was, thereafter, executed by SPO3 Asidelio Manibog, SPO1 Mario C. Tajon, SPO1 Asterio
T. Dismaya, SPO1 Renato M. Cresencia and PO3 Reynaldo S. Javonilla, Jr. for the apprehension of Amadeo Tira and
Nelson Tira who were brought to the police station for custodial investigation. The articles seized were turned over
to the PNP Crime Laboratory, Urdaneta Sub-Office, for examination.[19] In turn, a laboratory examination request
was made to the Chief of the Philippine National Police Service-1, Sub-Office, Urdaneta, Pangasinan for the
following:

a. Three (3) sachets of suspected methamphetamine hydrochloride approximately 0.5 grams;

 b. Six (6) opened sachets of suspected methamphetamine hydrochloride (SHABU) residue;

c. Twenty-four (4) pieces of dried marijuana leaves sachet; and

d. One (1) heat-sealed plastic sachet of suspected methamphetamine hydrochloride confiscated from the
possession of Nelson Tira.[20]

On March 10, 1998, P/Supt. Wilson R. Victorio executed a Compliance/Return of Search Warrant. [21]

On March 17, 1998, the PNP Crime Laboratory Group in Physical Science Report No. DT-057-98 reported that the
test conducted by Police Superintendent/Chemist Theresa Ann Bugayong-Cid,[22] yielded positive for
methamphetamine hydrochloride (shabu) and marijuana. The report contained the following findings:

"A1 to A3, "B1 to B6," "E" POSITIVE to the test for methamphetamine hydrochloride (shabu), a regulated drug.

"C" and "D1 to D4" POSITIVE to the test for marijuana, a prohibited drug.

CONCLUSION:
Specimens A1 to A3, B1 to B6 and E contain methamphetamine hydrochloride (Shabu) and specimens C and D1 to
D24 contain marijuana.[23]
A criminal complaint was filed by P/Supt. Wilson R. Victorio against Amadeo Tira and Connie Tira on March 10,
1998 for violation of Rep. Act No. 6425, as amended.[24] After finding probable cause, Assistant Provincial
Prosecutor Rufino A. Moreno filed an Information against the Tira Spouses for illegal possession of shabu and
marijuana, in violation of Section 8, in relation to Section 20 of Rep. Act No. 6425. [25] A warrant of arrest was issued
against Connie Tira on May 13, 1998. However, when the policemen tried to serve the said warrant, she could not
be found in the given address.[26] She was arrested only on October 6, 1998.[27]

During the trial, the court conducted an ocular inspection of the Tira residence. [28]

The Case for Accused Amadeo Tira[29]

Amadeo Tira denied the charge. He testified that he was a furniture delivery boy [30] who owned a one-storey
bungalow house with two bedrooms and one master's bedroom. There was also another room which was divided
into an outer and inner room; the latter room had no windows or ventilation. The house stood twenty meters
away from Perez Extension Street in Urdaneta, Pangasinan, and could be reached only by foot. [31] He leased the
room located at the western portion to his nephew Chris Tira [32] and the latter's live-in-partner Gemma Lim for
four hundred pesos a month.[33] Chris and Gemma were engaged in the buying and selling of bananas. He denied
that there were young men coming in and out of his house. [34]

In the afternoon of March 6, 1998, he was in his house sleeping when the policemen barged into his house. He
heard a commotion and went out of the room to see what it was all about, and saw police officers Cresencia,
Javonilla and Bergonia, searching the room of his nephew, Chris Tira. He told them to stop searching so that he
could contact his father, Ernesto, who in turn, would call the barangay captain. The policemen continued with their
search. He was then pulled inside the room and the policemen showed him the items they allegedly found. [35]

Barangay Kagawad Mario Conwi testified that on March 9, 1998, while he was at Calle Perez, Urdaneta,
Pangasinan, Capt. Ludivico Bravo asked to be accompanied to the Tira residence. Capt. Bravo was with at least ten
other policemen. As they parked the car at Calle Perez, the policemen saw a man running towards the direction of
the ricefields. Kagawad Conwi and some of the policemen chased the man, who turned out to be Nelson Tira. One
of the policemen pointed to a sachet of shabu which fell to the ground near Nelson. The policemen arrested him
and proceeded to the house of Amadeo Tira to serve the warrant. [36] When they reached the house, the other
policemen were waiting. He saw Amadeo and Connie Tira sitting by the door of the house in the sala. Thereafter,
he and the policemen started the search.[37] They searched the first room located at the right side (if facing
south),[38] and found marijuana, shabu, money and some paraphernalia.[39] An inventory of the items seized was
made afterwards, which was signed by Capt. Bravo and Ernesto Tira.[40]

Alfonso Gallardo, Amadeo's neighbor, testified that he was the one who constructed the Tira residence and that
the house initially had two rooms. The first room was rented out, while the second room was occupied by the
Spouses Amadeo and Connie Tira.[41] Subsequently, a divider was placed inside the first room.[42] He also testified
that his house was only three (3) meters away from that of the Tiras, and that only a toilet separated their
houses.[43] He denied that there were many people going in and out of the Tira residence. [44]

The Ruling of the Trial Court

The trial court rendered judgment on September 24, 1998, finding Amadeo Tira guilty beyond reasonable doubt of
illegal possession of 807.3 grams of marijuana and 1.001 gram of shabu. The decretal portion of its decision is
herein quoted:

WHEREFORE, JUDGMENT is hereby rendered CONVICTING beyond reasonable doubt accused AMADEO TIRA for
Illegal Possession of Marijuana weighing 807.3 grams and shabu weighing 1.001 gram penalized under Article III,
Sections 16 and 20, of Republic Act 6425, known as [the] Dangerous Drugs Act of 1972, as amended by Republic
Act 7659. The Court sentences Amadeo Tira to suffer the penalty of Reclusion Perpetua and a fine of
P1,000,000.00.

The amount of P12,536.00 is hereby forfeited in favor of the government which forms part of the fine; the
marijuana weighing 807.3 grams and shabu weighing 1.001 gram are hereby forfeited in favor of the government;
the disposable lighter and the aluminum foil are likewise forfeited in favor of the government.

The Branch Clerk of Court of this Court is hereby ordered to prepare the mittimus.

The Warden, Bureau of Jail Management and Penology (BJMP) is hereby ordered to transmit the person of
Amadeo Tira to the National Bilibid Prison with proper escort within fifteen (15) days upon receipt of this Order. [45]
The trial court upheld the validity of Search Warrant No. 3 issued by Judge Aurora Gayapa. It found Amadeo's
defense, that the room where the items were seized was rented out to the couple Cris Tira and Gemma Lim,
unsubstantiated. It held that Amadeo, as owner of the house, had control over the room as well as the things
found therein and that the inner room was a secret and practical place to keep marijuana, shabu and related
paraphernalia.[46]

Amadeo appealed the decision.[47]

The Case Against Connie Tira

After her arrest, Connie filed a motion to quash search warrant, [48] alleging that the police officers who applied for
the said warrant did not have any personal knowledge of the reported illegal activities. She contended that the
same was issued in violation of Section 4, Rule 126 of the Rules of Court, as the judge issued the search warrant
without conducting searching questions and answers, and without attaching the records of the proceedings.
Moreover, the search warrant issued was in the nature of a general warrant, to justify the "fishing expedition"
conducted on the premises.

On October 26, 1998, the presiding judge ordered Judge Aurora A. Gayapa to forward the stenographic notes of
the applicant and the witnesses.[49] Connie was arraigned on November 9, 1998, pending the resolution of the
motion. She pleaded not guilty to the charge of illegal possession of shabu and marijuana. [50] The trial court
thereafter issued an Order on November 11, 1998, denying the motion to quash. [51] It did not give credence to the
allegations of Connie Tira, and found that Judge Gayapa issued the search warrant after conducting searching
questions, and in consideration of the affidavit of witness Enrique Milad.

Connie testified that she was engaged in the business of buying and selling of fruits, while her husband was
employed at the Glasshouse Trading. One of the rooms in their house was occupied by their three boarders, two
male persons and one female.

In the afternoon of March 9, 1998, she and her husband Amadeo were in their house, while their boarders were in
their respective rooms. At 2:30 p.m., she was in the kitchen taking care of her one-year-old child. She had other
three children, aged eight, four, and three, respectively, who were watching television. Her husband Amadeo was
sleeping in one of the rooms. Suddenly, five policemen barged into their house and searched all the rooms. The
policemen found and seized articles in the room occupied by one of their boarders. They arrested Amadeo, and
her brother-in-law, Nelson Tira, and brought them to the police station. The boarders, however, were not arrested.

Joy Fernandez, a neighbor of the Tiras, lived approximately ten meters away from the latter. Since they had no
television, she frequently went to her neighbor's house to watch certain programs. In the afternoon of March 9,
1998, she was at the Tira residence watching "Mirasol," while Connie was in the kitchen nursing her baby.
Suddenly, about five or ten persons ran inside the house and handcuffed Amadeo Tira. [52]

The Ruling of the Trial Court

The trial court found Connie Tira guilty beyond reasonable doubt of illegal possession of 807.3 grams of marijuana
and 1.001 gram of shabu. The dispositive portion of the decision reads:

WHEREFORE, JUDGMENT is hereby rendered CONVICTING beyond reasonable doubt accused CONNIE TIRA for
Illegal Possession of Marijuana weighing 807.3 grams and shabu weighing 1.001 gram penalized under Article III,
Section 16 and 20, of Republic Act 6425, known as [the] Dangerous Drugs Act of 1972, as amended by Republic Act
7659, the Court sentences Connie Tira to suffer the penalty of Reclusion Perpetua and a fine of P1,000,000.00.

The amount of P12,536.00 is hereby forfeited in favor of the government which forms part of the fine; the
marijuana weighing 807.3 grams and shabu weighing 1.001 gram are hereby forfeited in favor of the government;
the disposable lighter and the aluminum foil are, likewise, forfeited in favor of the government.

The Warden, Bureau of Jail Management and Penology (BJMP) is hereby ordered to transmit the person of Connie
Tira to the National Bilibid Prisons with proper escort within fifteen (15) days upon receipt of his Order.[53]
The trial court did not believe that Connie Tira had no knowledge, control and possession of the shabu and
marijuana found in the first or inner room of their house. It stressed that Connie and Amadeo Tira jointly
controlled and possessed the shabu and marijuana that the policemen found therein. It ratiocinated that it was
unusual for a wife not to know the existence of prohibited drugs in the conjugal abode. Thus, as husband and wife,
the accused conspired and confederated with each other in keeping custody of the said prohibited articles. [54]The
court also held that Connie Tira's flight from their house after the search was an indication of her guilt. Connie,
likewise, appealed the decision.[55]

The Present Appeal

In their brief, the appellants Amadeo and Connie Tira assigned the following errors committed by the trial court:

THE TRIAL COURT ERRED IN CONVICTING ACCUSED-APPELLANTS DESPITE FAILURE ON THE PART OF THE
PROSECUTION TO PROVE THEIR GUILT BEYOND REASONABLE DOUBT.

II

THE TRIAL COURT ERRED IN NOT HOLDING THAT THE SEARCH WAS ILLEGALLY MADE.

III

ASSUMING THAT ACCUSED-APPELLANT AMADEO TIRA IS GUILTY AS CHARGED, THE TRIAL COURT ERRED IN
HOLDING THAT THERE WAS A CONSPIRACY BETWEEN HIM AND HIS WIFE CONNIE TIRA.[56]
The Court shall resolve the assigned errors simultaneously as they are interrelated.

The appellants contend that the search conducted by the policemen in the room occupied by Chris and Gemma
Lim, where the articles and substances were found by the policemen, was made in their absence. Thus, the search
was made in violation of Section 7, Rule 126 of the Rules of Criminal Procedure, which provides:

SEC. 7. Search of house, room, or premise, to be made in presence of two witnesses. No search of house, room, or
any other premise shall be made except in the presence of the lawful occupant thereof or any member of his
family or in the absence of the latter, in the presence of two witnesses of sufficient age and discretion residing in
the same locality.
The appellants posit that the articles and substances found by the policemen in their house are inadmissible in
evidence, being the fruits of a poisonous tree. Hence, they contend, they should have been acquitted of the crime
charged. The appellants further assert that the prosecution failed to prove that they owned the prohibited drugs,
and that the same were in their possession and control when found by the policemen. They insist that it cannot be
presumed that they were in control and possession of the said substances/articles simply because they owned the
house where the same were found, considering that the room was occupied by Chris Tira and his live-in partner,
Gemma Lim.

The appellant Connie Tira avers that she never fled from their house after the policemen had conducted the
search. Neither was she arrested by the policemen when they arrested her husband.

The appeals have no merit.

Contrary to the appellants' claim, appellant Amadeo Tira was present when the policemen searched the inner
room of the house. The articles and substances were found under the bed on which the appellant Amadeo Tira
slept. The policemen did not find the said articles and substances in any other room in the house:

So when you reached the house of Amadeo Tira at the Tira's compound, you saw the father and you told
Q him you are implementing the Search Warrant and your group was allowed to enter and you are allowed
to search in the presence of Amadeo Tira?
A Yes, Sir.

PROS. DUMLAO
Q In the course of your search, what did you find?

WITNESS:
A We found out suspected marijuana leaves, Sir.

Q Where, in what particular place did you find?

A Under the bed inside the room of Amadeo Tira, Sir
Q What else did you find aside from marijuana leaves?
A We also find suspected sachet of shabu, Sir.

Q What else?
A Lighter, Sir.

COURT:
Q If that shabu will be shown to you, could you identify the same?

WITNESS:
A Yes, Sir.

Q About the marijuana leaves, if shown to you could you identify the same?
A Yes, Sir.

PROS. DUMLAO:
Q What else did you find out aside from the marijuana leaves, shabu and lighter?
…
A I have here the list, Sir.
One (1) brick of marijuana
24 pcs. tea bag of marijuana
9 pcs. sachets of suspected "shabu"
6 disposable lighters
1 roll of aluminum foil
several empty plastic; several used and unused aluminum foil
one (1) sachet of shabu confiscated from Nelson Tira; and
P12,536.00 cash in different denominations proceeds of the contrand (sic).

COURT:
Q Where did you find the money?
...
A Near the marijuana at the bag, Sir.

Q About the money, could you still identify if shown to you?

A Yes, Sir.

Q When you found shabu, lighter, marijuana, and money, what did you do?
A We marked them, Sir.

Q All of the items?

A Only the marijuana, Sir.

Q What mark did you place?

A My signature, Sir.[57]
…
PROS. TOMBOC:
…

Q And when you were allowed to enter the house, did you notice who was present?
A I noticed the presence of Connie Tira, Sir.

Q When you said Connie Tira, is she the same Connie Tira the accused in this case?
A Yes, Sir, she was taking care of the baby.
 Q Who else?
A We also noticed the presence of Amadeo Tira, Sir.

Q What was he doing there?

A He was newly awake, Sir.

Q Upon entering the house, what did you do?

A We entered and searched the first room, Sir.

Q What did you find out?

A Shabu and Marijuana and paraphernalia, Sir.

Q Are you one of those who entered the house?

A Yes, Sir.

Can you mention to the Honorable Court those items that you searched in the house of Connie Tira and
Q
Amadeo Tira?
As per in (sic) our records, we found three (3) sachets containing suspected Methamphetamine
Hydrochloride "Shabu" residue; one (1) brick of suspected dried marijuana leaves weighing more or less
750 grams; twenty-four (24) tea bags containing dried marijuana leaves; six (6) disposable lighter; one
A
(1) roll aluminum foil; several empty plastics (tea bag); several used and unused aluminum foil; and cash
money amounting to P12,536.00 in different denominations believe[d] to be proceeds of the
contraband, Sir.

You said you recovered one (1) brick of marijuana leaves, showing to you a (sic) one (1) brick suspected
Q
to be marijuana leaves, is this the one you are referring to?
A Yes, Sir, this is the one.[58]

Appellant Amadeo Tira was not the only witness to the search; Kagawad Mario Conwi and Ernesto Tira, Amadeo's
father, were also present. Ernesto Tira even led the policemen inside the house. This is evidenced not only by the
testimony of Kagawad Conwi, but also by the certification signed by the appellant himself, along with Kagawad
Conwi and Ernesto Tira.[59]

The trial court rejected the testimony of appellant Amadeo Tira that the inner room searched by the policemen
was occupied by Chris Tira and his girlfriend Gemma Lim with the following encompassing disquisition:

… The defense contention that a couple from Baguio City first occupied the first room, the Court is not persuaded
because they did not present said businessmen from Baguio City who were engaged in vegetable business.
Secondly, the same room was rented by Chris Tira and Gemma Lim. Chris Tira and Gemma Lim, engaged in banana
business, were not presented in Court. If it were true that Chris Tira and Gemma Lim were the supposed lessees of
the room, they should have been apprehended by the searching party on March 9, 1998, at about 2:30 p.m. There
was no proof showing that Chris Tira and Gemma Lim ever occupied the room, like personal belongings of Chris
Tira and Gemma Lim. The defense did not even show proof showing that Chris Tira reside in the first room, like
clothings, toothbrush, soap, shoes and other accessories which make them the residents or occupants of the room.
There were no kitchen plates, spoons, powder, or soap evidencing that the said room was occupied by Chris Tira
and Gemma Lim. Amadeo Tira contended that Chris Tira and Gemma Lim are engaged in banana business. There
are no banana stored in the room at the time of the search and both of them were out of the room at the time of
the search. And why did not Amadeo Tira supply the police officers of the personal identities and address where
they could find Chris Tira and Gemma Lim at the time of the search. If they were banana dealers, they must be
selling their banana in the market and they could have pointed them in the market. [60] …
We are in full accord with the trial court. It bears stressing that the trial court conducted an ocular inspection of
the house of the appellants, and thus, had first hand knowledge of the layout of the house. Besides, the testimony
of the appellant Amadeo Tira, that the inner room was occupied by Chris Tira and Gemma Lim who were not there
when the search was conducted, is belied by the testimony of the appellant Connie Tira that the room was
occupied by two male and one female boarders who were in the room when the policemen searched it. Thus:

Q You said that while taking care of your baby, several policemen barged [sic] your house?
…
A Yes, Sir.

Q And they proceeded to your room where your husband was sleeping at that time?
A Yes, Sir.

Q And it is in that room where your husband was sleeping and where those articles were taken?
A No, Sir.

Q Where are (sic) those things came (sic) from?

A At the room where my boarders occupied, Sir.

Q So, at that time where were those boarders?

A They were inside their room, Sir.

Q How many of them?

A Two (2) male persons and one woman, Sir.

Q And do you know their whereabout[s], Madam Witness?

A No more, Sir.

Q When did they leave, Madam Witness?

A At that time, they left the house, Sir.

Q They were not investigated by the police?

A No, Sir.[61]

We agree with the finding of the trial court that the only occupants of the house when the policemen conducted
their search were the appellants and their young children, and that the appellants had no boarders therein.

Before the accused may be convicted of violating Section 8 of Republic Act No. 6425, as amended by Rep. Act No.
7659, the prosecution is burdened to prove beyond reasonable doubt the essential elements of the crime, viz: (1)
the actual possession of an item or object which is identified to be a prohibited drug; (2) such possession is not
authorized by law; and, (3) the accused freely or consciously possessed the said drug.[62]

The essential elements of the crime of possession of regulated drugs are the following: (a) the accused is found in
possession of a regulated drug; (b) the person is not authorized by law or by duly constituted authorities; and, (c)
the accused has knowledge that the said drug is a regulated drug. This crime is mala prohibita, and, as such,
criminal intent is not an essential element. However, the prosecution must prove that the accused had the intent
to possess (animus posidendi) the drugs. Possession, under the law, includes not only actual possession, but also
constructive possession. Actual possession exists when the drug is in the immediate physical possession or control
of the accused.[63] On the other hand, constructive possession exists when the drug is under the dominion and
control of the accused or when he has the right to exercise dominion and control over the place where it is
found.[64] Exclusive possession or control is not necessary.[65] The accused cannot avoid conviction if his right to
exercise control and dominion over the place where the contraband is located, is shared with another. [66]

Thus, conviction need not be predicated upon exclusive possession, and a showing of non-exclusive possession
would not exonerate the accused.[67] Such fact of possession may be proved by direct or circumstantial evidence
and any reasonable inference drawn therefrom. However, the prosecution must prove that the accused had
knowledge of the existence and presence of the drug in the place under his control and dominion and the
character of the drug.[68] Since knowledge by the accused of the existence and character of the drugs in the place
where he exercises dominion and control is an internal act, the same may be presumed from the fact that the
dangerous drug is in the house or place over which the accused has control or dominion, or within such premises
in the absence of any satisfactory explanation.[69]

In this case, the prohibited and regulated drugs were found under the bed in the inner room of the house of the
appellants where they also resided. The appellants had actual and exclusive possession and control and dominion
over the house, including the room where the drugs were found by the policemen. The appellant Connie Tira
cannot escape criminal liability for the crime charged simply and merely on her barefaced testimony that she was a
plain housewife, had no involvement in the criminal actuations of her husband, and had no knowledge of the
existence of the drugs in the inner room of the house. She had full access to the room, including the space under
the bed. She failed to adduce any credible evidence that she was prohibited by her husband, the appellant
Amadeo Tira, from entering the room, cleaning it, or even sleeping on the bed. We agree with the findings and
disquisition of the trial court, viz:

The Court is not persuaded that Connie Tira has no knowledge, control and possession of the shabu and marijuana
(Exhibits "M," "N," "O" and "P") found in their room. Connie Tira and Amadeo Tira jointly control and possess the
shabu (Exhibits "M" and "N") and marijuana (Exhibits "O" and "P") found in the room of their house. It is unusual
for a wife not to know the existence in their conjugal abode, the questioned shabu and marijuana. The husband
and wife (Amadeo and Connie) conspired and confederated with each other the keeping and custody of said
prohibited articles. Both of them are deemed in possession of said articles in violation of R.A. 6425, Section 8, in
relation to Section 20.
The Crimes Committed by the Appellants

The trial court convicted the appellants of violating Section 16, in relation to Section 20, of Rep. Act No. 6425, as
amended. The Office of the Solicitor General (OSG) asserts that the appellants should be convicted of violating
Section 8 of Rep. Act No. 6425, as amended. We do not agree with the trial court and the OSG. We find and so hold
that the appellants are guilty of two separate crimes: (a) possession of regulated drugs under Section 16, in
relation to Section 20, of Rep. Act No. 6425, as amended, for their possession of methamphetamine hydrochloride,
a regulated drug; and, (b) violation of Section 8, in relation to Section 20 of the law, for their possession of
marijuana, a prohibited drug. Although only one Information was filed against the appellants, nevertheless, they
could be tried and convicted for the crimes alleged therein and proved by the prosecution. In this case, the
appellants were charged for violation of possession of marijuana and shabu in one Information which reads:

That on or about March 9, 1998, in the Municipality of Urdaneta, province of Pangasinan, and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring together, did then and there willfully,
unlawfully and feloniously have in their possession, control and custody the following:

- Three (3) pieces (sic) sachets of shabu

- Six (6) pieces opened sachets of shabu residue
- One (1) brick of dried marijuana leaves weighing 721 grams
- Twenty-four (24) tea bags of dried marijuana leaves weighing 86.3 grams
- Six [6] disposable lighter
- One (1) roll Aluminum foil
- Several empty plastics (tea bag)
- Cash money amounting to P12,536.00 in different denominations believed to be proceeds of the contraband.

without first securing the necessary permit/license to posses[s] the same.

CONTRARY TO SEC. 8, in relation to Sec. 20 of R.A. 6425, as amended."[70]

The Information is defective because it charges two crimes. The appellants should have filed a motion to quash the
Information under Section 3, Rule 117 of the Revised Rules of Court before their arraignment. They failed to do so.
Hence, under Rule 120, Section 3 of the said rule, the appellants may be convicted of the crimes charged. The said
Rule provides:

SEC. 3. Judgment for two or more offenses. - When two or more offenses are charged in a single complaint or
information but the accused fails to object to it before trial, the court may convict him of as many offenses as are
charged and proved, and impose on him the penalty for each offense, setting out separately the findings of fact
and law in each offense.
The Proper Penalties On the Appellants

The crime of violation of Section 8, Article II of Rep. Act No. 6425, as amended, for illegal possession of 807.3
grams of marijuana, a prohibited drug, is punishable by reclusion perpetua to death. Considering that there are no
qualifying circumstances, the appellants are sentenced to suffer the penalty of reclusion perpetua, conformably to
Article 63 of the Revised Penal Code and are ordered to pay a fine of P500,000.00.

Under Section 16, Article III of Rep. Act No. 6425, as amended, the imposable penalty of possession of a regulated
drug, less than 200 grams, in this case, shabu, is prision correccional to reclusion perpetua. Based on the quantity
of the regulated drug subject of the offense, the imposable penalty shall be as follows:

QUANTITY IMPOSABLE PENALTY

Less than one (1) gram to 49.25 grams prision correccional
49.26 grams to 98.50 grams prision mayor
98.51 grams to 147.75 grams reclusion temporal
147.76 grams to 199 grams reclusion perpetua

Considering that the regulated drug found in the possession of the appellants is only 1.001 grams, the imposable
penalty for the crime is prision correccional. Applying the Indeterminate Sentence Law, the appellants are
sentenced to suffer an indeterminate penalty of from four (4) months and one (1) day of arresto mayor in its
medium period as minimum, to three (3) years of prision correccional in its medium period as maximum, for
violation of Section 16 of Rep. Act No. 6425, as amended.

IN LIGHT OF ALL THE FOREGOING, appellants Amadeo and Connie Tira are found GUILTY beyond reasonable doubt
of violating Section 8, Article II of Rep. Act No. 6425, as amended, and are hereby sentenced to suffer the penalty
of reclusion perpetua, andORDERED to pay a fine of P1,000,000.00. The said appellants are, likewise,
found GUILTY beyond reasonable doubt of violating Section 16, Article III of Rep. Act No. 6425, as amended, and
are sentenced to suffer an indeterminate penalty of from Four (4) Months and One (1) Day of arresto mayor in its
medium period as minimum, to Three (3) years of prision correccional, in its medium period, as maximum.

No costs.

SO ORDERED.

FIRST DIVISION

[ G.R. No. 206229, February 04, 2015 ]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. AMY DASIGAN Y OLIVA, ACCUSED-APPELLANT.

DECISION
PEREZ, J.:

Before the Court is a notice of appeal assailing the Decision dated 23 July 2012 of the Court of Appeals (CA) in CA-
G.R. CR-H.C. No. 04845,[1] which affirmed the Decision dated 7 January 2011 of the Regional Trial Court (RTC), La
Trinidad, Benguet, Branch 8 in Criminal Case Nos. 07[2]-CR-6702 and 07[3]-CR-6703,[4] finding accused-appellant
Amy Dasigan y Oliva (accused-appellant) guilty beyond reasonable doubt of illegal possession and illegal sale
of shabu under Sections 11 (3) and 5, Article II of Republic Act No. 9165 (R.A. No. 9165) or the Comprehensive
Dangerous Drugs Act of 2002.

In Criminal Case No. 07-CR-6702, the accused-appellant was charged with violation of Sec. 11 (3), Art. II of R.A. No.
9165, as follows:

That on or about the 9th day of December 2006, at Bayabas, Municipality of La Trinidad, Province of Benguet,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, without being
authorized by law, did then and there willfully, unlawfully and knowingly have in her possession, control and
custody a total of 0.28 grams (sic) of Methamphetamine Hydrochloride also known as "shabu", a dangerous drug,
in violation of the said law. [5]

In Criminal Case No. 07-CR-6703, on the other hand, the accused-appellant was charged with violation of Sec. 5,
Art. II of R.A. No. 9165, to wit:

That on or about the 9th day of December, 2006, at Barangay Bayabyas, Municipality of La Trinidad, Province of
Benguet, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, without any
authority by law, did then and there willfully, unlawfully and knowingly deliver and sell to PO2 ARIELTINO G.
CORPUZ, a member of the Philippine Drug Enforcement Agency who acted as a poseur-buyer, 0.15 grams (sic) of
Methamphetamine Hydrochloride also known as "shabu", a dangerous drug, in violation of the said law. [6]

Upon arraignment, accused-appellant, assisted by counsel, pleaded not guilty to both of the charges. [7] Trial on the
merits followed, and the two cases were heard jointly.

As comprehensively summarized by the RTC, the version of the prosecution is as follows:

On December 5, 2006, at the Philippine Drug Enforcement Agency (PDEA) office, Melvin Jones Grandstand,
Harrison Road, Baguio City, a male confidential informant reported to Police Chief Inspector Luisito Meris that a
certain alias "Amy" is engaged in delivering Methamphetamine Hydrochloride, also known as "Shabu" within the
vicinity of the La Trinidad Trading Post at Km. 5, La Trinidad, Benguet. Those present at the office were PO2
Arieltino Corpuz, SPO2 Cabily Agbayani and SPO1 Bernardo Ventura and they all heard this piece of information.
PCI Meris relayed the information to the PDEA Regional Director, Col. Inmodias and the latter formed a team
tasked to conduct the operation against alias "Amy" and cause her eventual arrest. PCI Meris was designated
Team Leader and PO2 Corpuz, SPO2 Agbayani and SPO1 Ventura were tasked as arresting officers.

The team leader, PCI Meris then directed PO2 Corpuz and the confidential informant to conduct surveillance
within the vicinity of the La Trinidad Trading Post at Km. 5, La Trinidad, Benguet and look in to the activities of alias
"Amy".

Thus, the following day, December 6, 2006, PO2 Corpuz and the confidential informant met at 4:00 o'clock in the
morning within the premises of the Benguet General Hospital as the informant stated that the activities of alias
"Amy" were always done in the morning. PO2 Corpuz and the confidential informant walked to the La [Trinidad]
Trading Post and the former told the latter that if alias "Amy" would come, he (informant) should go near her so he
(PO2 Corpuz) could meet her. Indeed at around 4:30 o'clock in the morning, a woman named "Amy" arrived and
the confidential informant met and talked to her before he called PO2 Corpuz. PO2 Corpuz was introduced to
"Amy" as the buyer of "shabu". "Amy" said she had something else to do and so she just gave PO2 Corpuz her cell
phone number. PO2 Corpuz then went back to their office leaving the confidential informant at the La Trinidad
Trading Post.

On December 8, 2006, PO2 Corpuz called "Amy" and asked her regarding their transaction as he was willing to buy
"shabu" worth two thousand pesos (PHP 2,000.00). "Amy" said she will deliver the shabu the following day,
December 9, 2006 at 6:00 o'clock in the morning at the vicinity of the La Trinidad Trading Post.

On December 9, 2006 at about 4:00 o'clock in the morning, the team already designated by the Regional Director
proceeded first to the La Trinidad Police Station which was just in front of the La Trinidad Trading Post at Km. 5, La
Trinidad, Benguet to coordinate with the local police before going to the rendezvous area. On instruction of Team
Leader PCI Meris, PO2 Corpuz called "Amy" and told her he was already at the La Trinidad Trading Post. However,
"Amy" said that she could not make it as she was doing something and asked him to see her at 4:00 o'clock that
afternoon. He agreed to her plan and so the team went back to their office.

At around 4:00 o'clock in the afternoon of the same day, the team went back to the La Trinidad Trading Post and
again PO2 Corpuz called "Amy" through her cell phone. "Amy" answered and directed PO2 Corpuz to go to the
road leading to Bayabas, La Trinidad, Benguet and she would deliver the "shabu" there. The team proceeded as
directed and PO2 Corpuz as the poseur-buyer with PHP 2,000.00 in his possession positioned himself at the
entrance of the road leading to Bayabas while the rest of the team stayed at a place where they could see the
transaction going on. PCI Meris stationed himself at the alley beside a store and from his vantage point, he could
see the arresting officers, SPO2 Agbayani and SPO1 Ventura but he could not actually see PO2 Corpuz.

Thirty minutes later, "Amy" arrived. She brought what appeared to be small transparent plastic sachets containing
white crystalline substance, picked out two sachets (Exhibits "C" and "C-1") and gave it to PO2 Corpuz. He asked
whether the items were of good quality to which "Amy" answered that those were "first class". He pressed the
white crystals and right away it crumbled into powdery substance and he suspected that the substance was
"shabu". "Amy" then demanded the payment of Two Thousand Pesos. He was ready with the amount but he was
instructed that once the "shabu" was given to him, he need not hand the money any longer. Thus, PO2 Corpuz
placed the two sachets in his pant[s] pocket and held Amy's right hand and announced "Pulis ako!" This was the
pre-arranged signal and so the rest of the team rushed to the scene and SPO1 Ventura held "Amy" while SPO2
Agbayani told her her constitutional rights. PCI Meris then told "Amy" to empty her pockets. "Amy" complied and
PCI Meris saw her actually bringing out her cell phone and four sealed sachets (Exhibits "D", "D-1", "D-2" and "D-
3") each containing a white substance similar to the ones she handed to PO2 Corpuz. PO2 Corpuz then got the
sealed sachets and he turned over all the six sachets, the two sachets sold to him and the four sachets which
"Amy" brought out from her pocket, as well as the cell phone to the team leader PCI Meris. PCI Meris then held on
to the items as they went to the La Trinidad Police Station.

xxxx

"Amy" was then brought to the La Trinidad Police Station purposely for the case to be entered in the police
blotter. The team with the accused in tow went back to the PDEA Office at Melvin Jones Grandstand, Harrison
Road, Baguio City where she was booked and a Booking Sheet and Arrest Report (Exhibit "F", page 95, Rollo,
Criminal Case No. 6702) was prepared. She was then identified as Amy Dasigan, the accused in this case. PCI
Meris brought out the seized items and directed his team members to put their initials on said items. When asked
why the initials were not indicated on the plastic sachets at the time of the arrest, PCI Meris explained that
Bayabas, La Trinidad, Benguet, is a notorious place based on his personal knowledge as he grew up in La Trinidad,
Benguet as well as based on statistics of the PNP of La Trinidad, Benguet. Being a notorious place and fearing that
the accused may have some back-up, he deemed it best that the marking be done in their office and so they left
the place right after the arrest of the accused.

PO2 Corpuz, SPO1 Ventura and SPO2 Agbayani each placed their initials on all the plastic sachets containing
suspected "shabu". The initials CJA was for Cabily J. Agbayani; the initials AGC for Arieltino G. Corpuz and the
initials BAV for Bernardo A. Ventura. "Amy" was in the office witnessing the men as they placed their initials. After
placing their initials on the items seized, PCI Meris turned over the seized items to the Evidence Custodian of
PDEA-CAR, SPO3 Romeo L. Abordo, Sr.

xxxx

SPO3 Romeo Abordo then prepared the inventory of the seized items (Exhibits "B" and "B-1", page 94, Rollo,
Criminal Case No. 6702), consisting of two small heat-sealed transparent plastic sachets containing white
crystalline substance and bearing the initials CJA, AGC and BAV, four small heat-sealed transparent plastic sachets
containing white crystalline substance also bearing the initials CJA, AGC and BAV and one Nokia cell pohone with a
SIM card. The inventory was done in the presence of Pros. Gondayao of the Benguet Provincial Prosecutor's
Office, the accused, and elected official and a member of the media. SPO3 Abordo testified that the cell phone
was no longer functioning as although they tried to charge it, it could not be charged.

On December 10, 2006, SPO3 Abordo brought the request for laboratory examination (Exhibit "G", page 96, Rollo,
Criminal Case No. 6702) together with the confiscated items (Exhibits "C", "C-1", "D", "D-1", "D-2", "D-3") to the
PNP Crime Laboratory where it was received by PO1 Joseph Andrew P. Dulnuan.

PO1 Dulnuan of the PNP Crime Laboratory received the items from SPO3 Abordo. He compared the items listed in
the request with the items he received and finding it accurate, he placed a control number on the request, Control
No. 329-06, logged in the request and accepted the turned-over items (Exhibit "G-1", page 96, Rollo, Criminal Case
No. 6702). PO1 Dulnuan then turned over these same items to Forensic Chemist PSInsp. Edward Gayados.

PSInsp. Edward Gayados is the forensic chemical officer of the PNP Crime Laboratory at Camp Dangwa, La Trinidad,
Benguet. On December 10, 2006, he received from PO1 Dulnuan a request from the PDEA-CAR for the conduct of
a laboratory examination on suspected "shabu". The items turned over to him by PO1 Dulnuan were two heat-
sealed transparent plastic sachets containing white crystalline substance (Exhibits "C" and "C-1") and four heat-
sealed transparent plastic sachets containing white crystalline substance (Exhibits "D", "D-1", "D-2" and "D-3"). All
the plastic sachets contained the intials CJA, AGC and BAV.

xxxx

SPInsp. Gayados then marked each specimen submitted indicating the case number assigned by their office, the
date of the examination and his initials. His findings were placed in writing under Chemistry Report No. D-056-06
(Exhibits "I" and "I-1", page 7, Rollo, Criminal Case No. 6703) and his findings and conclusion state "Qualitative
examination conducted on the above-stated specimens "A & B" gave POSITIVE result to the tests for the presence
of Methamphetamine hydrochloride, a dangerous drug. xxx Specimens "A & B" contain Methamphetamine
hydrochloride, a dangerous drug.xxx" (Exhibit "I-2"). [8]

The defense's version, on the other hand, is as follows:

On December 8, 2006, she was at home when PDEA agents went to their house at around 10:00 o'clock in the
morning. She knew them as PDEA agents as her sister-in-law Norma Domingo accompanied them when somebody
was arrested in Bayabas sometime before that day. In fact, the agents even dropped by their house and so they
knew where she lived. She identified the agents as Corpuz, Meris and Agbayani. These agents told her that her
daughter Ghel was in their office as she was caught in possession of "shabu". She then went with the PDEA agents
and she saw her daughter Ghel in the PDEA vehicle but she was not able to talk to her. She was then brought tot
he PNP Office at Camp Dangwa, La Trinidad, Benguet where she was shown the "shabu" after which she was
brought to the PDEA Office at Melvin Jones Grandstand, Harrison Road, Baguio City. She then saw her daughter
and the PDEA agents talking after which the PDEA accompanied her daughter to get her sister-in-law Norma
Domingo as it was the latter who told the daughter of the accused to deliver the "shabu" to the La Trinidad Trading
Post. Later that evening, her daughter came back with Norma Domingo. The accused was not able to talk to her
sister-in-law before the latter was transferred to Camp Dangwa as according to the PDEA agents, they could not be
together. The accused stated that her sister-in-law had always been arrested for possession of "shabu" but she
was always freed. But this time, the PDEA agents told her that she was being arrested as they insisted that the
"shabu" came from her. She further insists that she was arrested on December 8, 2006 and not December 9, 2006
as claimed by the PDEA agents and she was eventually brought to jail on December 11, 2006. She denies that she
could not have texted PO2 Corpuz as she does not have her own cell phone and she and her jusband share just one
cell phone. She surmised that the PDEA agents may have sent the text messages to her daughter's cell phone.

Ghel Dasigan, the daughter of the accused is 15 years old. She testified that Norma Dasigan Domingo is her aunt,
the latter being the sister of his father. On December 6, 2006, she was with her Aunt Norma at their house in
Apugan, Green Valley, Baguio City as she was to go down to Manila with her aunt to buy gifts. At around 9:00
o'clock in the morning of that same day, they left Baguio City arriving in Taguig City at around 4:00 o'clock in the
afternoon of the same day. They spent the night in the house of one Ruben Pasandalan but she does not know
him personally. That night, her Aunt Norma said they would get "shabu" from Ruben. She saw the "shabu"
weighing around 25 grams contained in a plastic sachet. Her aunt placed the "shabu" inside her bag. The
following day, they left Taguig. Upon arriving in Baguio, she did not go home to La Trinidad but spent the night at
her aunt's house. In the morning, her aunt gaver her "shabu" to deliver to a certain Rico at the La Trinidad Trading
Post. She went home first to see her mother but she never told her anything about the "shabu." She then went to
the La Trinidad Trading Post and although she does not know Rico, she knows that he owns a carinderia where
they usually eat. She gave the "shabu" to Rico when suddenly five men who said they were PDEA agents came and
she was arrested. She alone was brought to the PDEA vehicle and although Rico was already in possession of the
"shabu" at that time, he was allowed to go free.

She was brought to their residence but she was left in the van when the PDEA agents went to call for her mother.
Her mother was brought to the van and the PDEA agents were insisting that it was her mother who sent her to
deliver the "shabu". She stated that it was her Aunt Norma who made her deliver the "shabu" and so she was
made to point out her aunt's house. They all went to Apugan, Green Valley, Baguio City and she showed Norma's
house. Norma was then brought to Camp Dangwa but she was released after her daughter-in-law came and gave
money to the PDEA agents but it was not PO2 Corpuz who received the money. [9]

After weighing the evidence, the RTC convicted accused-appellant on both charges, viz.:

In Criminal Case No. 07-CR-6702

WHEREFORE, based on the foregoing premises, the court finds accused Amy Dasigan y Oliva GUILTY beyond
reasonable doubt of the crime of Violation of Section 11, (3), Article II of Republic Act No. 9165 and hereby
sentences her to suffer an indeterminate sentence of TWELVE (12) YEARS and ONE (1) DAY as Minimum to
FOURTEEN (14) YEARS and EIGHT (8) MONTHS as Maximum and to pay a fine in the amount of THREE HUNDRED
THOUSAND PESOS (PHP 300,000.00) and to pay the costs.

Pursuant to Article 29 of the Revised Penal Code, the period of the preventive imprisonment of the accused shall
be credited in the service of her sentence, provided the conditions prescribed in such article have been fully
met.

In Criminal Case No. 07-CR-6703

WHEREFORE, based on the foregoing premises, the court finds accused Amy Dasigan y Oliva GUILTY beyond
reasonable doubt of the crime of Violation of Section 5, Article II of Republic Act No. 9165 and hereby sentences
her to suffer the penalty of LIFE IMPRISONMENT and to pay a fine in the amount of FIVE HUNDRED THOUSAND
PESOS (PHP 500,000.00) and to pay the costs.
Pursuant to Article 29 of the Revised Penal Code, the period of the preventive imprisonment of the accused shall
be credited in the service of her sentence, provided the conditions prescribed in such article have been fully
met.[10]

Accused-appellant appealed before the CA, assigning the following errors:

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT DESPITE THE PROSECUTION'S
FAILURE TO ESTABLISH THE INTEGRITY AND IDENTITY OF THE SEIZED SHABU BEYOND REASONABLE DOUBT.

II

THE TRIAL COURT SERIOUSLY ERRED IN CONVICTING THE ACCUSED-APPELLANT WHEN HER GUILT WAS NOT
PROVEN BEYOND REASONABLE DOUBT. [11]

After a review of the records, the CA affirmed the RTC Decision. The appellate court ruled that the failure of the
arresting officers to fully comply with the required immediate marking and photograph of the seized items under
Section 21 of the Implementing Rules of R.A. No. 9165 is not fatal, [12] and that the testimony of every witness who
handled the evidence provides a reliable assurance that the evidence presented in court is one and the same as
that seized from the accused.[13] The appellate court also ruled that all the elements for a conviction of illegal
possession and illegal sale of dangerous or prohibited drugs were proven, [14] and that accused-appellant's claims of
denial and frame-up were unconvincing.[15] Thus, the CA held:

FOR THE STATED REASONS, the instant appeal is DENIED. The Decision of the RTC dated 7 January 2011 finding
the accused Amy Dasigan y Oliva guilty of violation of Sections (5) and 11 (3) of R.A. 9165 is AFFIRMED. [16]

Accused-appellant is now before the Court, reiterating the arguments she raised before the CA.[17] In particular,
accused-appellant avers that the prosecution miserably failed to preserve the integrity of the seized items as well
as to establish its unbroken chain of custody,[18]as no photographs were taken by the apprehending officers, and
as, although an inventory was conducted, it was seriously flawed because it was not conducted immediately after
the accused-appellant's arrest and was not shown to have been made in the presence of selected public
officials.[19]

The appeal is partly meritorious.

Accused-appellant harps on the supposed failure of the prosecution to prove that the integrity of the seized items
was preserved.

Indeed, as we held in People v. Torres,[20] the identity of the prohibited drug must be proved with moral certainty.
It must also be established with the same degree of certitude that the substance bought or seized during the buy-
bust operation is the same item offered in court as exhibit. In this regard, paragraph 1, Section 21, Article II of R. A.
No. 9165 (the chain of custody rule) provides for safeguards for the protection of the identity and integrity of
dangerous drugs seized, to wit:

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.[21]

However, this Court has, in many cases, held that while the chain of custody should ideally be perfect, in reality it is
not, "as it is almost always impossible to obtain an unbroken chain." The most important factor is the preservation
of the integrity and the evidentiary value of the seized items as they will be used to determine the guilt or
innocence of the accused. Hence, the prosecution's failure to submit in evidence the physical inventory and
photograph of the seized drugs as required under Article 21 of R. A. No. 9165, will not render the accused's arrest
illegal or the items seized from him inadmissible.[22]

The chain of custody is not established solely by compliance with the prescribed physical inventory and
photographing of the seized drugs in the presence of the enumerated persons. The Implementing Rules and
Regulations of R. A. No. 9165 on the handling and disposition of seized dangerous drugs states:

x x x Provided, further, that non-compliance with these requirements under justifiable grounds, as long as the
integrity and 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. [23] (Italics, emphasis, and undecoring
omitted)

In the case at bar, after the items were seized by Police Officer (PO) 2 Arieltino G. Corpuz (PO2 Corpuz)[24] from
accused-appellant, he turned them over to Police Chief Inspector (PCI) Luisito Meris (PCI Meris) [25] who retained
possession until they reached the Philippine Drug Enforcement Agency (PDEA) Office where the arresting officers
were able to mark them (i.e, "CJA for Cabily J. Agbayani; "AGC" for Arieltino G. Corpuz, and "BAV" for Bernado A.
Ventura). PCI Meris then submitted said seized items to Senior Police Officer (SPO) 3 Romeo L. Abordo, Sr. (SPO3
Abordo, Sr.), the Evidence Custodian of PDEA Cordillera Administrative Region (CAR) who, in turn, prepared the
inventory and the request for laboratory examination. It was SPO3 Abordo, Sr. who brought the request for
laboratory examination and the seized items to the PNP Crime Laboratory where they were received by PO1
Joseph Andrew P. Dulnuan who submitted them to Forensic Chemist Police Senior Inspector (PSI) Edward Gayados,
and it was the latter who, after a full qualitative examination, confirmed that the seized items were positive for
methamphetamine hydrochloride, a dangerous drug. In open court, PO2 Corpuz and SPO2 Cabily Agbayani easily
identified the sachets as the ones they seized from accused-appellant as the sachets still bore their initials,
together with the initials of SPO1 Bernardo Ventura.

As to the fact that the seized items were marked only at the police station and not during the actual apprehension
and seizure, in People v. Loks,[26] we held that the marking of the seized substance immediately upon arrival at the
police station qualified as a compliance with the marking requirement. Such can also be said here, especially in
view of the explanation of PCI Meris that the place of arrest had a notorious reputation based on his personal
knowledge as well as on police statistics, and that the arresting officers deemed it best that they leave said place
right after the arrest of the accused-appellant for fear that the latter might have some back-up.[27]

Clearly, there was no hiatus or confusion in the confiscation, handling, custody and examination of the shabu.[28]
The shabu that was seized from accused-appellant, taken to the PDEA Office and thereat duly marked, then taken
to the crime laboratory and subjected to a qualitative examination, and thereafter introduced in evidence against
accused-appellant was the same shabu confiscated from accused-appellant when she was caught in flagrante
delicto possessing the same.

We now come to the issue of whether all the elements of the crimes charged were duly proven.
Under Section 11, Article II of R.A. No. 9165, the elements of the offense of illegal possession of dangerous drugs
are: (1) the accused is in possession of an item or object which is identified to be a prohibited drug; (2) such
possession is not authorized by law; and (3) the accused freely and consciously possessed the said drug. [29]

In Criminal Case No. 07-CR-6702, all these elements were proven. First, the four plastic sachets containing shabu,
which are the subject of the charge for illegal possession of dangerous or prohibited drugs, were found on
accused-appellant's person during the search conducted by the PDEA officers following accused-appellant's
arrest in flagrante delicto for illegal sale of shabu. In People v. Montevirgen,[30] we reiterated the rule that a person
lawfully arrested may be searched for anything which may have been used or constitute proof in the commission
of an offense without warrant. Second, accused-appellant was not able to demonstrate his legal authority to
possess the subject shabu. And third, accused-appellant's act of giving PO2 Corpuz, the poseur-buyer, one sachet
and telling him "maganda ito, first class ito," and then bringing out more sachets and selecting two sachets to give
to PO2 Corpuz[31] indicates that she freely and consciously possessed the subject shabu. Consequently, accused-
appellant was correctly charged and convicted of illegal possession of shabu.

On the other hand, in a successful prosecution for offenses involving the illegal sale of dangerous drugs under
Section 5, Article II of R.A. No. 9165, the following elements must concur: (1) the identities of the buyer and seller,
object, and consideration; and (2) the delivery of the thing sold and the payment for it. What is material is proof
that the transaction or sale actually took place, coupled with the presentation in court of evidence of corpus
delicti.[32]

In Criminal Case No. 07-CR-6703, the Court notes, however, that the sale was not consummated as there was no
receipt of the consideration. Below is the testimony of PO2 Corpuz:

Now let's go back to that time you said that Amy gave you that stuff, you did not give any money, was it
Q-
not?
A- Yes, sir.
Q- In other words you did not prepare any marked money?
A- We prepared, sir.
Q- You prepared?
A- Yes, sir.
Q- But you never handed it to her?
A- Yes, sir.
Q- Why?
During our briefing our team leader told me that if ever the shabu will already be given to you, you just
A- grabbed (sic) the hand and do not give already the money. It might even be lost. She might run away
with it.
Q- How many of you conducted that buy-bust operation against this certain Amy?
A- We are all four, sir.
Q- And you said she was alone at that time?
A- Yes, sir.
But the instruction given to you was there was no need to give the money because it might get lost, is
Q-
that correct?
A- He told me that, whenever the shabu had already been given to you, grab her hand.
Q- I see. So there was no say (sic) because you did not give the money?
Sometimes the transaction happen (sic) when the subject person first can get the money that is the
A- time that we have to give the money but that happened (sic) if she give first the item before she claim
the money, sir.
It did not occur to you that since it is an exchange of you should have given the money before you were
Q-
given the shabu?
A- No longer, sir.
Q- You immediately grabbed her?
A- Yes, sir.
Q- In other words there was no exchange of that marked money and shabu, is that what you are saying?
A- She gave shabu before I grabbed her hand.
Q- Now before you conducted the buy-bust operation you prepared marked money, was it not?
A- Yes, sir.
Q- How did you prepare that?
A- Our team leader get the money to our Regional then he gave me the money.
Q- But you did not hand the money to her?
A- Yes, sir.
Court:
Q- So Amy never touched the money?
A- No, your honor.
Q- It was in your pocket all alone (sic)? Where was the marked money?
A- In my hand, your honor.
Q- What hand?
A- My right hand.
Q- Oh, so you were holding it in a fist?
A- Yes, your honor. And then when she saw the money I returned (sic) back to my pants.
Q- Who had the money?
A- I am (sic), your honor.
Q- No, no, no, you said, so you had the money in your hand?
A- Yes, your honor.
Q- When did you put it back in your pocket?
A- Because alias Amy will show me the shabu so I put the money in my pocket.
Q- So she was going to show the shabu?
A- Yes, your honor.
Q- You show (sic) her the money?
A- Yes, your honor.
Q- But you put back the money in your pocket?
A- Yes, your honor.
Q- And then you show (sic) her the shabu?
A- Yes, your honor. I told her to see first the item if it is good.
Q- So you saw the shabu?
A- Yes, your honor.
Q- Did she touch the shabu or you just looked at it?
A- She touched.
Q- You touched it?
A- She gave it to me, your honor.
Q- She gave the shabu to you?
A- Because I told her that I will see it first if it is good.
Q- And then when she gave it to you what happened?
A- I examined.
Q- And then what happened?
A- When I examined it at that time she was claiming the money.
Q- And then?
A- And then I grabbed already her hand and saying PDEA ako.
Q- So she never got the money?
A- Yes, your honor. [33]
xxxx

In People v. Hong Yeng E and Tsien Tsien Chua,[34] where the marked money was also shown to accused-appellant
but it was not actually given to her as she was immediately arrested when the shabu was handed over to the
poseur-buyer, the Court held that it is material in illegal sale of dangerous drugs that the sale actually took place,
and what consummates the buy-bust transaction is the delivery of the drugs to the poseur-buyer and, in turn, the
seller's receipt of the marked money. While the parties may have agreed on the selling price of the shabu and
delivery of payment was intended, these do not prove consummated sale. Receipt of the marked money, whether
done before delivery of the drugs or after, is required.

In the case at bar, although accused-appellant was shown the consideration before she handed over the
subject shabu to the poseur-buyer, such is not sufficient to consummate the sale. As previously held by the Court,
looking at a thing does not transfer possession of it to the beholder. Such a tenet would make window shoppers
liable for theft.[35]

Accused-appellant's exoneration from the charge of illegal sale of dangerous or prohibited drugs, however, does
not spell freedom from all criminal liability as she may still be convicted for illegal possession of dangerous or
prohibited drugs. It is settled that possession is necessarily included in the sale of dangerous or prohibited
drugs.[36]

Accused-appellant was correctly convicted in Criminal Case No. 07-CR-6702 for illegal possession of dangerous or
prohibited drugs in the total weight of 0.28 gram (the four sachets weighing 0.06 gram, 0.07 gram, 0.07 gram, and
0.08 gram, respectively).[37] In Criminal Case No. 07-CR-6703, on the other hand, although illegal sale of dangerous
or prohibited drugs was not proven, accused-appellant is certainly criminally liable for illegal possession of
dangerous or prohibited drugs in the total weight of 0.15 gram.[38] A summation of the weights will yield a total of
0.43 gram, and under Sec. 11 (3), Art. II, of R.A. No. 9165, possession of less than five grams of shabu is penalized
with imprisonment of twelve (12) years and one (1) day to twenty (20) years plus a fine ranging from P300,000.00
to P400,000.00.

Applying the Indeterminate Sentence Law, the accused shall be sentenced to an indeterminate sentence, the
maximum term of which shall not exceed the maximum fixed by law and the minimum term shall not be less than
the minimum prescribed by the same. [39] Thus, the penalty originally imposed by the RTC of imprisonment of
twelve (12) years and one (1) day, as minimum, to fourteen (14) years and eight (8) months, as maximum, and a
fine of Three Hundred Thousand Pesos (P300,000.00), for illegal possession of shabu in the total weight of 0.28
gram is still proper for illegal possession of shabu in the total weight of 0.43 gram, it being less than five grams.

WHEREFORE, premises considered, the assailed Decision dated 23 July 2012 of the Court of Appeals in CA-G.R. CR-
H.C. No. 04845 is hereby MODIFIED. The Court finds Amy Dasigan y Oliva guilty of illegal possession of dangerous
or prohibited drugs under Section 11, Article II of Republic Act No. 9165, and accordingly IMPOSES, in accordance
with the Indeterminate Sentence Law, imprisonment for twelve (12) years and one (1) day, as minimum, and
fourteen (14) years and eight (8) months, as maximum, and ORDERS her to pay a fine of P300,000.00.

SO ORDERED.

SECOND DIVISION

[ G.R. No. 193670, December 03, 2014 ]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. VENERANDO DELA CRUZ Y SEBASTIAN, ACCUSED-
APPELLANT.

RESOLUTION

DEL CASTILLO, J.:

Assailed in this appeal is the June 25, 2010 Decision[1] of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 01025
that affirmed the March 15, 2005 Judgment[2] of the Regional Trial Court (RTC) of Naga City, Branch 28, in Criminal
Case No. RTC'03-0289 convicting Venerando Dela Cruz y Sebastian (appellant) of Violation of Section 5, Article II of
Republic Act No. 9165 (RA 9165) or the Comprehensive Dangerous Drugs Act of 2002.

Factual Antecedents

On July 25, 2003, police asset Warren Ebio (Ebio) received information from another asset that he could
purchase shabu by calling a certain person. He thus called the said person through cellular phone and agreed to
meet with him in front of the barangay hall of Lerma, Naga City.

Accordingly, a pre-operation plan to entrap the alleged seller was immediately drawn up in coordination with the
Philippine Drug Enforcement Agency. SPO1 Ruben Antonio (SPO1 Antonio), SPO1 Cornelio Morano (SPO1 Morano),
PO3 Raul Bongon (PO3 Bongon) and SPO3 Julio Tuason (SPO3 Tuason) then formed themselves into a buy-bust
team. Ebio was designated as the poseur-buyer and was given three P500.00 bills as buy-bust money, while PO3
Bongon was tasked to apprehend the seller after the consummation of the transaction.

Upon their arrival at the designated area, Ebio, SPO3 Tuason and SPO1 Morano alighted from their vehicle. Ebio
proceeded towards the meeting place while the other two positioned themselves nearby. A few minutes later, a
man riding a motorcycle arrived. The buy-bust team recognized him as the seller based on his attire as described
by him to Ebio. Ebio introduced himself as the buyer. When the man asked for payment, he gave him the buy-bust
money. The man then took out two transparent plastic sachets containing white crystalline substance from his
right pocket and gave them to Ebio. Thereupon, Ebio took off his hat, the pre-arranged signal that the transaction
was already consummated. Immediately, PO3 Bongon, SPO1 Morano and SPO1 Antonio rushed towards the man
and apprehended him. They recovered from him the buy-bust money and another plastic sachet containing white
crystalline substance. Immediately after Ebio turned over to him the two sachets subject of the sale, PO3 Bongon
marked the same with "RSB-1" and "RSB-2." On the other hand, he marked the third sachet recovered from the
seller after he conducted a search on him with "RSB-3." PO3 Bongon thereafter turned over these seized items
together with the marked money to SPO1 Antonio for proper disposition. A police investigation followed where
the person arrested was identified as the appellant. Afterwards, SPO1 Antonio brought the sachets to the
Philippine National Police Crime Laboratory for examination, during which Forensic Chemist Josephine Macura
Clemen (Clemen) found their contents positive for shabu. Thus, an Information[3] for Violation of Section 5, Article
II of RA 9165 was filed against appellant.

Appellant denied the accusation against him and claimed that he was merely a victim of frame-up. In his version of
the incident, appellant alleged that he was riding his motorcycle towards the Panganiban Bridge near
the Barangay Hall of Lerma, Naga City in the evening of July 25, 2003. He was going to his parents' house located in
the boundary of Lerma and Triangulo Streets to inform them that he and his family would leave early morning of
the next day for Camarines Sur to attend the wake of his father-in-law who died a few days earlier. As he was
descending the bridge, however, two individuals grabbed his hands. A police officer then suddenly came out of a
car and told him to get off his motorcycle. PO3 Bongon frisked him and took his cellphone and telephone directory
that contained money. After that, he was made to board a mobile car and was brought to a police station. Thereat,
police officers threatened to charge him if he would not cooperate in the arrest of a certain "Habagat," who
engaged his services as a computer technician. He did not accede since he knew nothing about the case of
"Habagat." Hence, the police officers instead filed a case against him.

In the RTC Judgment dated March 15, 2005, appellant was found guilty as charged and sentenced to suffer the
penalty of life imprisonment with a fine of P500,000.00. On appeal, the CA rendered its Decision on June 25, 2010
affirming the said RTC Judgment.

Hence, this appeal.

The Issue

Appellant points out the following: (1) it was not made clear by the prosecution where the markings of the three
sachets of shabu were made; and (2) the prosecution failed to show whether there was already a clear
understanding between appellant and the poseur-buyer with respect to the quantity of shabu allegedly being
purchased. In view of these, appellant asserts that the presumption of innocence in his favor must be upheld.

The Court's Ruling

The appeal lacks merit.

"In a prosecution for illegal sale of dangerous drugs, [such as shabu], the following elements must be duly
established: (1) the identity of the buyer and seller, the object, and the consideration, and (2) the delivery of the
thing sold and the payment therefor. The delivery of the illicit drug to the poseur-buyer and the receipt by the
seller of the marked money successfully consummate the buy-bust transaction."[4]Here, the prosecution submitted
evidence that duly established the elements of illegal sale of shabu. It positively identified appellant as the seller of
the seized illegal substance which turned out to be positive for methamphetamine hydrochloride commonly
known as shabu, a dangerous drug. Appellant sold and delivered the drug for P1,500.00 to Ebio, a police asset who
acted as poseur-buyer. Verily, all the elements of the sale of illegal drugs were established to support appellant's
conviction of the said offense.

We cannot give credence to appellant's argument that failure to mention the place where the three plastic sachets
of shabu were marked constitutes a gap in the chain of custody of evidence.

Chain of custody is "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." [5] It eliminates doubts
concerning the proper preservation of the identity and integrity of the corpus delicti or the shabu in this case.
Marking of the seized shabu is the initial stage in the chain of custody in buy-bust operations. As requisites, the
marking must be made in the presence of the apprehended offender and upon immediate confiscation, and this
contemplates even marking at the nearest police station or office of the apprehending team.[6]

In this case, Ebio turned over to PO3 Bongon the two sachets of shabu sold to him by the appellant. Together with
another sachet of shabuhe recovered from appellant, PO3 Bongon immediately marked each sachet with "RSB-1,"
"RSB-2" and "RSB-3," respectively, before giving them to SPO1 Antonio. While it is true that the exact location
where the markings were made was not mentioned, it can reasonably be concluded that the same happened
during appellant's apprehension, in transit to the police station or before the sachets were turned over to SPO1
Antonio in the police station. Upon receipt, SPO1 Antonio then submitted the sachets to the crime laboratory. PO2
Henry Escalora, Sr. received the three sachets and handed them to Forensic Chemist Clemen whose examination of
the contents thereof revealed that they were positive for shabu. During trial, Forensic Chemist Clemen presented
and identified the specimens. Clearly, the prosecution was able to establish the chain of custody of the shabu from
its possession by the police officers, testing in the laboratory to determine its composition, until the same was
presented as evidence in court. Hence, even if there was no statement as to where the markings were made, what
is important is that the seized specimen never left the custody of PO3 Bongon until he turned over the same to
SPO1 Antonio and that thereafter, the chain of custody was shown to be unbroken. [7] Indeed, the integrity and
evidentiary value of the seized shabu is shown to have been properly preserved and the crucial links in the chain of
custody unbroken.

We also cannot give credence to appellant's argument that the absence of relevant testimony on any agreement
between him and Ebio with respect to the quantity of shabu sought to be purchased casts doubt on the existence
of a legitimate buy-bust operation. The existence of the illegal sale of the shabu does not depend on an agreement
about its quantity and price since the offense is consummated after the exchange of the illegal drug for the marked
money. Hence, Ebio's testimony that appellant asked for the money before handing over theshabu and that he
received the sachets of shabu after giving appellant the P1,500.00, is by itself sufficient.

Anent appellant's defense of frame-up, such is inherently weak and viewed with disfavor for it can be easily
concocted.[8] For this defense to succeed, it must be proven with strong and convincing evidence. [9] Appellant
failed in this regard.

In view of the foregoing discussion, we uphold appellant's conviction of the offense charged.

The penalty for unauthorized sale of shabu under Section 5, Article II of RA 9165,[10] regardless of its quantity and
purity, is life imprisonment to death and a fine ranging from P500,000.00 to P10,000,000.00. However, with the
enactment of RA 9346,[11] only life imprisonment and fine shall be imposed. We therefore find the penalty of life
imprisonment and payment of fine in the amount of P500,000.00 imposed by the RTC and affirmed by the CA to be
proper. It must be emphasized, however, that appellant shall not be eligible for parole. [12]

WHEREFORE, the Decision dated June 25, 2010 of the Court of Appeals in CA-G.R. CR-HC No. 01025, which
affirmed the conviction of appellant Venerando Dela Cruz y Sebastian for Violation of Section 5, Article II of
Republic Act No. 9165 by the Regional Trial Court of Naga City, Branch 28 in its March 15, 2005 Judgment,
is AFFIRMED with the modification that appellant shall not be eligible for parole.

SO ORDERED.

THIRD DIVISION

[ G.R. No. 207635, February 18, 2015 ]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. DANTE DELA PEÑA[1] AND DENNIS DELIMA, ACCUSED-
APPELLANTS.

DECISION

VILLARAMA, JR., J.:

Before this Court is an appeal from the April 16, 2013 Decision[2] of the Court of Appeals (CA) in CA-G.R. CR HC No.
01200 affirming the judgment[3] of the Regional Trial Court (RTC) of Cebu City, Branch 8, in Criminal Case Nos. CBU-
83576, CBU-83577, and CBU-83578, finding accused-appellants Dante Dela Peña (Dela Peña) and Dennis Delima
(Delima) guilty beyond reasonable doubt of violation of Republic Act No. 9165 (R.A. 9165), the Comprehensive
Dangerous Drugs Acts of 2002.

The antecedents follow:

The three separate Informations filed on June 23, 2008 by the City Prosecutor's Office of Cebu City indicted Dela
Peña and Delima for the following crimes, to wit:

In Criminal Case No. CBU-83576, the Information charged Dela Peña with violation of Section 5, Article II, R.A. 9165
for illegal sale of shabu, thus:

That on or about the 19th day of June, 2008, at around 11:45 o'clock in the evening, in the City of Cebu, Philippines
and within the jurisdiction of this Honorable Court, [Dela Peña], with deliberate intent, and without authority of
law, did then and there sell, deliver or give away to [a] poseur buyer one (1) heat[-]sealed transparent plastic
sachet of white crystalline substance weighing 0.02 gram, locally known as shabu, containing methamphetamine
hydrochloride, a dangerous drug.

CONTRARY TO LAW.[4]

In Criminal Case No. CBU-83577, the Information charged Dela Peña with violation of Section 11, Article II of R.A.
9165 for illegal possession of shabu, viz.:

That on or about the 19th day of June, 2008, at about 11:45 o'clock in the evening, in the City of Cebu, Philippines
and within the jurisdiction of this Honorable Court, [Dela Peña], with deliberate intent, did then and there have in
his possession and control four (4) heat[-]sealed transparent plastic sachet[s] of white crystalline substance
weighing 0.02 gram [each] or a total of 0.08 gram, locally known as shabu, containing methamphetamine
hydrochloride, a dangerous drug, without authority of law.

CONTRARY TO LAW.[5]

The Information in Criminal Case No. CBU-83578 charged Delima with illegal possession of shabu. The accusatory
portion alleged:

That on or about the 19th day of June, 2008, at about 11:45 o'clock in the evening, in the City of Cebu, Philippines
and within the jurisdiction of this Honorable Court, [Delima] with deliberate intent, did then and there have in his
possession and control one (1) heat[-]sealed transparent plastic sachet of white crystalline substance weighing
0.02 gram, locally known as shabu, containing methamphetamine hydrochloride, a dangerous drug, without
authority of law.

CONTRARY TO LAW.[6]

Dela Peña and Delima separately entered pleas of "Not Guilty" upon arraignment.[7] Joint trial of the three cases
was conducted by the RTC.

The prosecution presented the following witnesses: (1) Intelligence Officer 1 Ferdenand [8] Kintanar (IO1 Kintanar);
and (2) Intelligence Officer 1 Baby Rallos (IO1 Rallos), both operatives of the Philippine Drug Enforcement Agency,
Region VII (PDEA-7). Their testimonies were summarized by the appellate court, thus:

When [IO1 Kintanar] x x x received a report from their confidential informant that [Dela Peña] was selling shabu in
Barangay Sawang Calero, Cebu City, he immediately instructed OJT Steven Balles to conduct a surveillance, which
confirmed the report. Then in the evening of June 19, 2008, a team of PDEA officers was formed to conduct a buy-
bust operation [against Dela Peña]. The team was composed of ten PDEA members including IO2 David Mark
Maramba as team leader, [IO1 Kintanar] and [IO1 Rallos]. IO1 Kintanar, who was tasked [to act] as poseur-buyer,
was given three pieces of one hundred peso (Php100.00) bills as buy-bust money bearing serial numbers
PQ242526, YF280219 and TV375522 which were all pre-marked with [IO1] Kintanar's initials "FK" at the lower right
front portion of the bills. IO1 Kintanar then prepared an Authority to Operate [for the conduct of the] operation.

Thereafter, the buy-bust team, accompanied by their confidential informant, proceeded to Barangay Sawang
Calero. Upon their arrival there, the team searched for [Dela Peña] in the area. When they finally found him
standing along the road with [Delima], IO1 Kintanar and the confidential informant approached him while the rest
of the members strategically positioned themselves where, from their vantage point, they could clearly see the
transaction.

The informant and IO1 Kintanar informed [Dela Peña] of their intention to buy shabu. IO1 Kintanar handed the
marked money to Dela Pe[ñ]a, who, in turn, handed a small sachet of suspected shabu. Delima, who was beside
[Dela Peña], also showed a sachet of suspected shabu to IO1 Kintanar but the latter ignored him. Immediately, IO1
Kintanar executed the pre-arranged signal by scratching his head, indicating that the sale was consummated.

The rest of the team members immediately approached the group and arrested [Dela Peña and Delima]. IO1
Kintanar seized from Dela Pe[ñ]a the buy-bust money and four (4) sachets of suspected shabu. On the other hand,
[IO1 Rallos, who] arrested Delima x x x recovered from [the latter] a small sachet of shabu which he turned over to
IO1 Kintanar. The buy-bust team apprised the duo of their constitutional rights and thereafter brought them,
together with the confiscated items, to the PDEA-7 office where the said items were marked by IO1 Kintanar. The
plastic sachet of shabu which was the subject of the sale, was marked "DSDP-BB 6/19/08" whereas the four
sachets recovered from Dela Pe[ñ]a were marked as "DSDP-01 6/19/08" to "DSDP-04 6/19/08", respectively. The
one small sachet seized from Delima was likewise marked as "DCD-01 6/19/08". The confiscated items were
photographed, recorded in the blotter and listed in a Certificate of Inventory in the presence of [Dela Peña and
Delima] and was duly witnessed and signed by Barangay Captain Jerome B. Lim of Barangay Sta. Cruz and media
representative Chito O. Aragon.

x x x At 1:50 in the afternoon of the following day, IO1 Kintanar delivered the laboratory request and the
confiscated plastic sachets of suspected shabu to the crime laboratory which was received by PO3 El Abesia. On
the same day, Forensic Chemist Rendielyn L. Sahagun issued Chemistry Report No. D-663-2008 stating that the
subject six plastic sachets with a total weight of 0.12 gram of white crystalline substance marked as "DSDP-BB
6/19/08", "DSDP-01 6/19/08", "DSDP-02 6/19/08", "DSDP-03 6/19/08", "DSDP-04 6/19/08" and "DCD-01 6/19/08",
respectively, tested positive for Methamphetamine Hydrochloride or shabu.[9]

The presentation as witness of Rendielyn L. Sahagun (FC Sahagun), the Forensic Chemist of the Philippine National
Police (PNP) Regional Crime Laboratory Office 7, Cebu City, was dispensed with after the parties stipulated during
the pre-trial conference that: (1) she is qualified to conduct an examination on the specimen submitted to
determine the presence of dangerous drugs; (2) the items described in the Letter Request for laboratory
examination (Exhibit "B") are the very same specimen listed in Chemistry Report No. D-663-2008 (Exhibit "C"); and
(3) the contents of the plastic sachets with the markings "DSDP-BB 6/19/08", "DSDP-01 6/19/08", "DSDP-02
6/19/08","DSDP-03 6/19/08", "DSDP-04 6/19/08", and "DCD-01 6/19/08" were confirmed to be positive for after a
chemical examination. Likewise, the defense waived its objection to the admissibility of Chemistry Report No. D-
663-2008, and the seized sachets of shabu.[10]

Both appellants interposed the defense of denial.

Dela Peña asserted that he merely took shelter in a nearby store because of the heavy rain that morning of June
19, 2008. Meanwhile, a group of persons arrived and inquired from Dela Peña the whereabouts of the person they
were chasing. They thereafter frisked, mauled, and brought him to the PDEA-7 office.[11]

For his part, Delima testified that he was driving a "sidecar"[12] at 11:45 p.m. of June 19, 2008 when two strangers
approached and frisked him. Although no illegal item was confiscated from him, the said persons, who turned out
to be PDEA operatives, arrested him. He met Dela Peña for the first time at the PDEA-7 office.[13]

Giving credence to the version of the prosecution witnesses who have no ill-motive to testify against Dela Peña
and Delima,[14] and finding that the prosecution established the elements of the crimes charged, [15] the RTC found
Dela Peña and Delima guilty beyond reasonable doubt of the crimes charged. The fallo of the Decision dated
March 30, 2010 reads:

WHEREFORE, finding them guilty beyond reasonable doubt of the offenses of which they are being respectively
indicted, a judgment is hereby rendered:

1) Sentencing [Dela Peña] to suffer the penalty of LIFE IMPRISONMENT and to pay a FINE in the amount of
 P500,000.00 in Criminal Case No. CBU-83576 for violation of Section 5, Article II of [R.A. 9165];
Sentencing [Dela Peña] to suffer the penalty of IMPRISONMENT for a period of TWELVE (12) YEARS
2) AND ONE DAY TO FIFTEEN (15) YEARS and to pay a FINE in the amount of P300,000.00 in Criminal Case
No. 83577 for violation of Section 11, Article II of [R.A. 9165]; and
Sentencing [Delima] to suffer the penalty of IMPRISONMENT for a period of TWELVE (12) YEARS AND
3) ONE DAY TO FIFTEEN (15) YEARS and to pay a FINE in the amount of P300,000.00 in Criminal Case No.
83578 for violation of Section 11, Article II of [R.A. 9165].

The subject sachets of shabu marked "DSDP-BB" 6/19/08 (Exhibit "A"), "DSDP-01" 6/19/08 to "DSDP-04" 6/19/08
(Exhibits "B" to "B-3"); and "DCD-01" 6/19/08 (Exhibit "A" Delima) are declared forfeited in favor of the
Government, to be disposed of pursuant to the provisions of R.A. 9165 and related rules and regulations.

SO ORDERED.[16]

Dela Peña and Delima sought to reverse their conviction before the CA. They maintained that the RTC erred as
follows:

x x x IN CONVICTING [DELA PEÑA] OF THE CRIME CHARGED DESPITE THE FACT THAT THE ELEMENTS x x x FOR SALE
OF ILLEGAL DRUGS WERE NOT ESTABLISHED

II

x x x IN CONVICTING [DELA PEÑA AND DELIMA] DESPITE THE FAILURE OF THE PROSECUTION TO PROVE BEYOND
REASONABLE DOUBT THE CORPUS DELICTI[17]

The CA affirmed the RTC Decision. However, the CA modified the penalties in Criminal Case Nos. CBU-83577 and
CBU-83578 by lowering the maximum periods of the imposed penalties from fifteen (15) years to fourteen (14)
years and eight (8) months, to wit:

WHEREFORE, in view of the foregoing, the appeal is DENIED. The Decision dated March 30, 2010 of the [RTC] in
Criminal Case Nos. CBU-83576 to 83578 finding [Dela Peña] guilty of violating Sections 5 and 11, and [Delima] of
violating Section 11, Article II of [R.A.] 9165 otherwise known as [the] Comprehensive Dangerous Drugs Act of
2002, is AFFIRMED with the following MODIFICATIONS:

1) In Criminal Case No. 83577, [Dela Peña] is sentenced to suffer the indeterminate penalty of IMPRISONMENT for
a period of TWELVE (12) YEARS AND ONE DAY TO FOURTEEN (14) YEARS and EIGHT (8) MONTHS and to pay a FINE
in the amount of P300,000.00 for violation of Section 11, Article II of [R.A. 9165]; and

2) In Criminal Case No. 83578, [Delima] is sentenced to suffer the indeterminate penalty of IMPRISONMENT for a
period of TWELVE (12) YEARS AND ONE DAY TO FOURTEEN (14) YEARS and EIGHT (8) MONTHS and to pay a FINE in
the amount of P300,000.00 for violation of Section 11, Article II of [R.A. 9165].

No pronouncement as to costs.

SO ORDERED.[18]

Insisting on their innocence, Dela Peña and Delima interposed the present appeal. In separate
manifestations,[19] the parties stated that they will no longer file supplemental briefs.

The issue to be resolved is whether Dela Peña and Delima's guilt for the crimes charged was established by the
prosecution beyond reasonable doubt.

After a circumspect review of the evidence on record, we affirm the conviction of Dela Peña and Delima.

The elements of the crimes charged

were established beyond reasonable
doubt

The elements necessary for the prosecution of a charge for illegal sale of dangerous drugs under Section 5, Article
II of R.A. 9165 are: (1) the identities of the buyer and the seller, the object, and the consideration; and (2) the
delivery of the thing sold and the payment therefor.[20]

On the other hand, the elements of the crime of illegal possession of dangerous drug are: (a) the accused is in
possession of an item or object that is identified to be a prohibited or dangerous drug; (b) such possession is not
authorized by law; and (c) the accused freely and consciously possessed the drug. [21]

All the elements of the crimes of illegal sale and illegal possession of shabu, a dangerous drug, were clearly proven
by the prosecution through the credible testimony of IO1 Kintanar. The identity of the parties to the sale
transaction (Dela Peña and IO1 Kintanar) involving the subject sachet of shabu worth P300.00 and the
consummation of the sale were duly established by IO1 Kintanar. IO1 Kintanar's testimony likewise established the
illegal possession of sachets of shabu by Dela Peña and Delima. No ill-motive was shown by the defense for IO1
Kintanar to unjustly implicate Dela Peña and Delima in the present cases. Where there is no evidence that the
principal witness for the prosecution was actuated by improper motive, like IO1 Kintanar in the present case, the
presumption is that he was not actuated and his testimony is entitled to full faith and credit. [22]

IO1 Kintanar, who acted as the poseur-buyer, recounted the details of the successful entrapment operation
conducted against Dela Peña, as well as how he saw Delima holding one sachet of shabu, thus:

Q What happened when you [and the confidential informant] arrived at [Barangay Sawang Calero]?
A We initially looked for [Dela Peña] at his hang[-]out.
Q And were you able to find [Dela Peña] at his hang[-]out, Mr. Witness?
A Yes, sir.
Q What happened when you found out where [Dela Peña] was?
A We approached him and negotiated for the selling of shabu.
Q You mentioned "we" who was your companion when you approached [Dela Peña]?
A I was with the Confidential Agent, sir.
Q [A]nd what transpired when you approached [Dela Peña]?
After negotiation, [Dela Peña] asked me how much shabu would I buy and I told him that I will
A
purchase a three hundred pesos worth of shabu.
xxxx
PROSECUTOR GIDAYAWAN:
After you manifested to [Dela Peña] that you would be buying three hundred pesos worth of shabu,
what was his reply?
A [Dela Peña] asked for the money.
xxxx
COURT:
How did you approach [Dela Peña]?
When I approached [Dela Peña], I asked in Bisaya "na-a tay butang diha, bay?" Do you have stuffs? And
A
[Dela Peña] answered, Yes. He asked how much, that's when I told him that I was going to buy three
 hundred pesos worth of shabu.
xxxx
PROSECUTOR GIDAYAWAN:
After that [negotiation] with [Dela Peña] when you were asked and you said three hundred pesos, Mr.
Witness, what did you do next?
A I gave [Dela Peña] three (3) one hundred peso-bills and in turn he gave me a sachet of shabu.
Q Which came first, you handing the money to [Dela Peña] or [Dela Peña] handing to you the shabu?
A [Dela Peña] asked me first for the money, sir.
Q [A]nd did you give [Dela Peña] the money?
A Yes, sir.
Q [A]nd did [Dela Peña] receive the money?
A Yes, sir.
Q In exchange for the three hundred pesos, what did [Dela Peña] give you in return?
A [Dela Peña] gave me a sachet of shabu, one sachet, sir.
xxxx
Q Now, after [Dela Peña] gave you this one (1) pack of shabu, what happened next?
I examined it and I noticed [Delima], also showing to me a sachet of shabu as if tempting me that if
A
you don't like that, you can buy this.
Now, this [Delima], when did he come to that area, Mr. Witness, before [Dela Peña] gave you
Q
the shabu or while the [negotiation] was still going on between you and [Dela Peña]?
xxxx
A At the start of the [negotiation], all the time he was beside [Dela Peña].
COURT:
In other words, when you found [Dela Peña], [Delima] was beside him?
A Yes, sir.[23]

After the illegal drug transaction was consummated, IO1 Kintanar executed the pre-arranged signal by scratching
his head, and IO1 Rallos with the other members of the buy-bust team rushed toward them. IO1 Rallos
handcuffed Dela Peña and Delima.[24]

Thereafter, IO1 Kintanar frisked Dela Peña, and confiscated from his pocket four (4) sachets containing shabu,
thus:

Q And after you arrested and got hold of [Dela Peña], what did you [do] next to him?
When I got hold of him, IO1 Rallos handcuffed both of them and that was the time when I searched
A
[Dela Peña], sir.
Q And what was the result of your search?
A I discovered from [Dela Peña's] right pocket four (4) sachets of shabu x x x.[25]

IO1 Rallos, likewise, discovered one sachet of shabu inside the pocket of Delima confirming IO1 Kintanar's
testimony that he saw Delima holding a sachet of shabu, viz.:

Now, when you arrested, or can you tell us the circumstances when you arrested [Delima], Mr.
Q
Witness?
Upon arriving at the place where the transaction took place, sir, IO1 Kintanar told me that [Delima] also
A had in his possession [a sachet of] shabu because he saw it during the transaction, so he told me to
[get] hold of [Delima], sir.
Q And when you took hold of [Delima], what did you do next, Mr. Witness?
A I handcuffed [Delima] and also [Dela Peña], sir.
Q And after you handcuffed them, what did you do next, if any?
A I searched Dennis Delima, sir.
Q And what was the result, if any, to the search?
[I] found from [Delima's] pocket one sachet containing white crystalline substance believed to be
A
shabu, sir.[26]

The contents of the plastic sachet sold by Dela Peña to IO1 Kintanar and the four sachets found in the former's
possession, as well as, the single sachet seized from Delima, all tested positive for Methamphetamine
Hydrochloride or shabu, a dangerous drug, upon the laboratory examination conducted by FC Sahagun. Her
findings are contained in Chemistry Report No. D-663-2008, the genuineness and due execution of which was
admitted by the defense.[27] Verily, the report of a government forensic chemist regarding a recovered prohibited
drug enjoys the presumption of regularity as to its preparation. [28] Being an official record made in the
performance of FC Sahagun's official duty, the entries in Chemistry Report No. D-663-2008 are prima
facie evidence of the facts they state.[29] Dela Peña and Delima failed to overcome with competent evidence the
positive findings for shabu of the contents of the subject sachets as contained in Chemistry Report No. D-663-
2008.

In Criminal Case No. CBU-83576, Dela Peña asserted that no buy-bust operation was conducted because an illegal
drug peddler will not sell shabu to a total stranger[30] in a public place which is open to view.[31] Contrary to Dela
Peña's posture, peddlers of illicit drugs have been known with ever increasing casualness and recklessness to offer
and sell their wares for the right price to anybody, be they strangers or not. [32] Moreover, drug pushing when done
on a small-scale, like the instant case, belongs to those types of crimes that may be committed any time and at any
place.[33]

Factual findings of the trial court, including its assessment of the credibility of the witnesses and the probative
weight thereof, as well as the conclusions of the trial court based on its factual findings, are accorded high respect,
if not conclusive effect, especially if affirmed by the CA,[34] except when facts or circumstances of weight and
influence were overlooked or the significance of which was misappreciated or misinterpreted by the lower
courts.[35] Our judicious review of the records revealed no reason for us to deviate from the factual findings of the
RTC, as affirmed by the CA, that a legitimate buy-bust operation was successfully conducted against Dela Peña on
June 19, 2008.

The lack of documentary proof of the surveillance conducted on Dela Peña, [36] the failure of the PDEA-7 operatives
to record in their blotter the serial numbers of the buy-bust money,[37] and the failure of the prosecution to
present as evidence the pre-operation report,[38] failed to create a dent on the prosecution's evidence. A
surveillance,[39] pre-operation report,[40] and buy-bust money[41] are not elements of, and are not vital to the
prosecution for illegal sale of shabu. What is material to the prosecution of illegal sale of dangerous drugs is the
proof that the illegal sale actually took place, coupled with the presentation in court of the corpus delicti as
evidence.[42]

Anent Criminal Case Nos. CBU-83577 and CBU-83578, the cases for illegal possession of shabu, both Dela Peña and
Delima failed to overcome the presumption that they have knowledge or animus possidendi of the shabu found in
their respective possession. Possession of dangerous drugs constitutes prima facie evidence of knowledge
or animus possidendi sufficient to convict an accused in the absence of a satisfactory explanation of such
possession.[43] Except for their self-serving denial, the accused could not present any viable defense. The defense
of denial or frame-up has been invariably viewed with disfavor for it can easily be concocted and is a common
defense ploy in prosecutions for violation of R.A. 9165.[44] In the absence of clear and convincing evidence to
substantiate it, said defense deserves outright rejection.

Moreover, both Dela Peña and Delima failed to show that they have the authority and/or license to possess
the shabu found in their person, a fact within their peculiar knowledge. It is not incumbent upon the prosecution
to adduce positive evidence to support a negative averment the truth of which is fairly indicated by established
circumstances and which, if untrue, could readily be disproved by the production of documents or other evidence
within the defendant's knowledge or control.[45] Hence, in failing to produce their license and/or authority to
possess the shabu, Dela Peña and Delima were correctly found guilty for violation of Section 11, Article II, of R.A.
9165.

The prosecution established the

unbroken chain of custody of the
sachets of shabu seized from
Dela Peña and Delima

In the prosecution of a case for violation of R.A. 9165, both for illegal sale and illegal possession of dangerous
drugs, the primary consideration is to ensure that the identity and integrity of the seized drugs have been
preserved from the time they were confiscated from the accused until their presentation as evidence in court. [46]
The prosecution must establish with moral certainty that the specimen submitted to the crime laboratory and
found positive for dangerous drugs, and finally introduced in evidence against the accused was the same illegal
drug that was confiscated from him.

Here, the unbroken chain of custody of the sachets of shabu seized from Dela Peña and Delima was established by
the prosecution through the testimonies of IO1 Kintanar and IO1 Rallos, from the time of their confiscation and
delivery to the crime laboratory for examination until their presentation in court.

As borne out by the evidence, IO1 Rallos immediately handed to IO1 Kintanar the sachet he seized from Delima. [47]
IO1 Kintanar kept the sachet handed by IO1 Rallos separated [48] from the sachets sold by and confiscated from Dela
Peña. The subject sachets were marked with the initials of the person from whom they originated and the date of
the buy-bust operation: "DSDP-BB 6/19/08", "DSDP-01 6/19/08", "DSDP-02 6/19/08", "DSDP-03 6/19/08", "DSDP-
04 6/19/08", and "DCD-01 6/19/08". Nothing in the records will show that IO1 Kintanar yielded, at any instance,
possession of the subject sachets to another PDEA operative, after he acquired custody thereof, [49]on their way to
the PDEA-7 office[50] until he submitted them to the PNP Crime Laboratory. [51] As stipulated by the defense, IO1
Kintanar brought the sachets described in the Request for Laboratory Examination to the PNP Crime Laboratory
Office-7, Cebu City. Upon qualitative analysis of the submitted sachets at the crime laboratory, FC Sahagun found
their contents positive for Methamphetamine Hydrochloride or shabu, a dangerous drug, as stated in Chemistry
Report No. D-663-2008. [52] IO1 Kintanar identified the subject sachets to be the same ones bought ("DSDP-BB
6/19/08") and seized ("DSDP-01 6/19/08", "DSDP-02 6/19/08", "DSDP-03 6/19/08", and "DSDP-04 6/19/08") from
Dela Peña and Delima ("DCD-01 6/19/08") through the markings inscribed, and his signature in each plastic
sachet.[53]

Anent the failure of FC Sahagun to testify on the security measures taken after she examined the specimen, [54] the
defense agreed to dispense with the Forensic Chemist's testimony, effectively waiving the opportunity to question
her on the matter. Unfortunately, Dela Peña and Delima are barred from belatedly raising this objection for the
first time before the CA. Lapses in the safekeeping of seized illegal drugs that affected their integrity and
evidentiary value should be raised at the trial court level. When a party desires the court to reject the evidence
offered, he must so state the same in the form of objection. Without such objection, the accused cannot raise the
question for the first time on appeal.[55]

On the alleged non-compliance with Section 21[56] of R.A. 9165 on the conduct of physical inventory, [57] the CA
aptly ruled that a physical inventory was conducted[58] and photographs[59] were taken, thus:

x x x Records show that the confiscated items were listed in a Certificate of Inventory which was duly signed by a
media representative and elected public official. Photographs were even taken showing that the appellants were
present when the media representative and elected official signed the certificate of inventory. [60]

In any event, we emphasized in People v. Abedin[61] that what is of utmost importance is to preserve the integrity
and the evidentiary value of the seized items as the same would be utilized in the determination of the guilt or
innocence of the accused. The failure of the law enforcers to comply strictly with Section 21 of R.A. 9165 is not
fatal, and its non-compliance will not render the arrest of an accused illegal or the items seized or confiscated from
him inadmissible.

Neither the use of the initials of Dela Peña ("DSDP") and Delima ("DCD") in marking the confiscated sachets at the
PDEA-7 office instead of the locus criminis, create a cloud on the integrity and the evidentiary value of the seized
items.

"Marking" initiates the process of protecting innocent persons from dubious and concocted searches, and of
protecting as well the apprehending officers from harassment suits based on planting of evidence.[62] Marking
upon immediate confiscation contemplates even marking at the nearest police station or office of the
apprehending team, [63] like what occurred in the present case. In the same vein, the fact that the markings used in
the subject sachets were the initials of Dela Peña and Delima and not the initials of the arresting PDEA agent is not
a ground to acquit the appellants. In the similar case of People v. Cardenas,[64] where the seized plastic sachets
containing shabu were marked with the initials of accused-appellant, his conviction for illegal sale of dangerous
drugs was nonetheless affirmed. Further, the defense cannot raise for the first time on appeal the question of
whether the markings were made in the presence of Dela Peña and Delima. Lapses that affected the integrity and
evidentiary value of the seized illegal drugs should be raised at the trial court level. [65] In any case, marking of the
evidence, just like the security measures mandated under Section 21 of R.A. 9165, is aimed to ensure that the
integrity and evidentiary value of the confiscated illegal drugs will be preserved. With the preservation of the
integrity and evidentiary value of the six sachets seized from Dela Peña and Delima, as previously discussed, the
lapses allegedly committed by the PDEA-7 operatives in the marking thereof, will not suffice to reverse their
conviction.

To sum up, from the time the illegal drugs were seized from Dela Peña and Delima, up to their delivery to the
crime laboratory for chemical examination, until their presentation in evidence before the RTC, the integrity of said
items was preserved. No evidence was adduced by the defense showing that they were tainted in any manner.
Verily, the integrity of the evidence is presumed to be preserved unless there is a showing of bad faith, ill will, or
proof that the evidence has been tampered with.[66] Dela Peña and Delima failed to discharge their burden of
proving that the evidence was tampered to overcome the presumption of regularity in the handling of exhibits by
public officers and the presumption that the public officers properly discharged their duties. [67]

All told, the prosecution established beyond reasonable doubt, the guilt of Dela Peña in Criminal Case Nos. CBU-
83576 and CBU-83577, and of Delima in CBU- 83578, for violation of Sections 5 and 11 of R.A. 9165.

We uphold the penalties imposed by the CA as they are within the range of the penalties provided for under
Sections 5[68] and 11(3)[69]of R.A. 9165, as well as the prevailing jurisprudence in similar cases.[70]

WHEREFORE, premises considered, the present appeal is DISMISSED. The Decision dated April 16, 2013 of the
Court of Appeals in CA-G.R. CR HC No. 01200 is AFFIRMED.

With costs against the accused-appellants.

SO ORDERED.

SECOND DIVISION

[ G.R. No. 190466, April 18, 2016 ]

LUIS DERILO Y GEPOLEO, PETITIONER, VS. PEOPLE OF THE PHILIPPINES, RESPONDENT.

DECISION
BRION, J.:

We resolve the appeal, filed by accused-appellant Luis Derilo y Gepoleo (petitioner), from the September 25, 2009
decision[1] and the December 8, 2009 resolution[2] of the Court of Appeals (CA) in CA-G.R. CR No. 31602.

The appealed decision affirmed the January 18, 2008 decision [3] of the Regional Trial Court (RTC), Branch 65,
Sorsogon City, finding the petitioner guilty beyond reasonable doubt of violation of Sections 11 and 12, Article II of
Republic Act (RA) No. 9165,[4] and sentencing him as follows: for Criminal Case No. 04-711 - imprisonment of
twelve (12) years and one (1) day, as minimum, to twenty (20) years, as maximum, and to pay a fine of
P300,000.00; and for Criminal Case No. 04-712 - imprisonment of six (6) months and one (1) day, as minimum, to
four (4) years, as maximum, and to pay a fine of P10,000.00.

The Factual Antecedents

On November 19, 2004, at around 6:00 A.M., a team of police officers, led by SPO1 Sonny Evasco, conducted a
police operation to serve a search warrant[5] at the residence of the petitioner located in Lay-a, Gate, Bulan,
Sorsogon.[6] The police officers coordinated with the barangay captain of Gate who, in turn, sent two barangay
tanods - Basilio Gueta and Santiago Españo - to accompany and assist the police officers in the service of the
search warrant.[7]

After an initial search of the petitioner's pockets and wallet, SPO1 Evasco instructed Gueta and Españo to conduct
a search inside the petitioner's bedroom (of the place described in the search warrant) as a precautionary measure
for the police officers to avoid being accused of planting evidence.[8] During the search, the barangay tanods,
under the supervision of SPO1 Evasco,[9] recovered twelve (12) plastic sachets[10] inside a matchbox, each
containing white crystalline substance.[11]

The police officers also recovered suspected drug paraphernalia, i.e., new and used aluminum foil, lighters, and a
tube, which were scattered in plain view in different parts of the house. Some of the used aluminum foils were
found under the house.[12]

While at the scene, SPO1 Evasco proceeded to mark the confiscated items with his initials, "S.B.E.," while SPO1
Calupit took their photographs. In addition, SPO1 Evasco prepared an inventory of the items seized, but the
petitioner refused to sign the inventory.[13]

The petitioner and the seized items were then taken to the police station. Thereafter, the seized items were
brought to the court and then to the PNP Crime Laboratory for examination by SPO1 Calupit and PO2 Lobrin. [14]

At the PNP Crime Laboratory, SPO1 Alejandro Usi, a drug screener/laboratory technician, conducted an initial field
test of the drug specimens.[15] Based on the Certification of Laboratory Examination dated November 19, 2004,
the test yielded positive for methamphetamine hydrochloride, also known as "shabu" a dangerous drug.[16]

The following day, P/Inspt. Josephine Clemens, the PNP Crime Laboratory's forensic chemist, conducted a
confirmatory physical and chemistry examination of the drug specimens. [17] Based on the Chemistry Report dated
November 20, 2004, the twelve (12) plastic sachets indeed contained shabu,[18] thus confirming the result of the
earlier initial field test.

The prosecution charged the petitioner with violation of Sections 11 and 12, Article II of RA No. 9165, for
possession of twelve (12) plastic sachets containing 0.3485 gram of shabu and for possession of drug
paraphernalia, i.e., forty-one (41) pieces of rolled aluminum foil, one (1) used aluminum foil, one (1) tube, two (2)
lighters, and one (1) matchbox, respectively.[19] The cases were docketed as Criminal Case Nos. 04-711 and 04-712.

In its decision dated January 18, 2008, the RTC found the petitioner guilty beyond reasonable doubt of both crimes
charged and sentenced him as follows:

In Criminal Case No. 04-711, [the petitioner] is sentenced to suffer the penalty of imprisonment, ranging
a) from twelve (12) years and one (1) day, as minimum, to twenty (20) years, as maximum, and to pay a fine of
Three Hundred Thousand Pesos (P300,000.00); and,
In Criminal Case No. 04-712, [the petitioner] is further sentenced to suffer the penalty of imprisonment,
b) ranging from six (6) months and one (1) day, as minimum, to four (4) years, as maximum, and to pay a fine of
Ten Thousand Pesos (P10,000.00) and the costs of suit.[20]
On appeal, the CA affirmed the RTC decision in toto. In its decision dated September 25, 2009, the appellate court
ruled that: first, the delegation to the barangay tanods of the task of physically searching for illegal drugs in the
petitioner's bedroom did not make the search irregular. Thus, the items seized, including the twelve (12) plastic
sachets found by the barangay tanods, cannot be considered as "fruits of the poisonous tree." Second, the
prosecution satisfactorily established the required link in the chain of custody of the seized items. Third, the
alleged inconsistencies between the prosecution witnesses' testimonies appear to be minor and inconsequential
and do not impair their credibility. Fourth, the failure of the police officers to coordinate with the Philippine Drug
Enforcement Agency (PDEA) does not render the search illegal nor does it make the evidence seized from the
petitioner's house inadmissible. And fifth, the petitioner's defenses of alibi and frame-up cannot overcome the
narration of the incident by the prosecution's witnesses.[21]

The petitioner moved for reconsideration, but the CA denied his motion in a resolution dated December 8,
2009.[22] As a consequence, the petitioner filed the present petition for review on certiorari on January 26, 2010.

The Present Petition

The petitioner raises the following issues in the present petition:

First, the petitioner argues that the search became unlawful when SPO1 Evasco delegated the task of searching the
bedroom to the barangay tanods for fear of being "branded" as planting evidence. Consequently, any evidence
which may have been obtained during the search is absolutely inadmissible for being the "fruit of the poisonous
tree."[23]

Second, the petitioner insists that there are inconsistencies with the prosecution witnesses' testimonies as to who
actually found the matchbox containing the twelve (12) plastic sachets and the suspected drug paraphernalia. [24]

And third, the petitioner claims that the chain of custody over the seized items "appears broken and
questionable," considering that the seized items were not marked in his presence. [25] This puts into question the
identity of the drug specimens submitted to the PNP Crime Laboratory for examination. [26]

The Court's Ruling

After due consideration, we resolve to GRANT the petitioner's appeal for the prosecution's failure to prove his guilt
beyond reasonable doubt in Criminal Case Nos. 04-711 and 04-712.

Criminal Case No. 04-711

In criminal prosecutions, it is fundamental that the accused is presumed innocent of a charge until his guilt is
proven beyond reasonable doubt.[27] In other words, the elemental acts constituting the offense must be
established with moral certainty, as this finding and level of proof are the critical requisites to a finding of guilt.[28]

For prosecutions involving dangerous drugs, the dangerous drug itself constitutes the corpus delicti of the offense
and the fact of its existence is vital to sustain a judgment of conviction beyond reasonable doubt. [29] It is of
paramount importance that the identity of the dangerous drug be so established, [30] along with the elements of
the offense charged. Proof beyond reasonable doubt in these cases demands an unwavering exactitude that the
dangerous drug presented in court as evidence against the accused is the same as that seized from him.[31]

In order to meet the quantum of proof required in drug-related prosecutions, the chain of custody requirement
under Section 21 of RA No. 9165 ensures that doubts concerning the identity of the seized drugs are
removed.[32] As a method of authenticating evidence, the chain of custody rule requires that the admission of the
exhibit be preceded by evidence sufficient to support a finding that the matter in question is what the proponent
claims it to be.[33]

To show an unbroken link in the chain of custody,[34] the prosecution's evidence must include testimony
about every link in the chain, from the moment the item was seized to the time it is offered in court as evidence,
such that every person who handled the evidence would acknowledge how and from whom it was received, where
it was and what happened to it while in the witness' possession, the condition in which it was received and the
condition in which it was delivered to the next link in the chain. The same witness would then describe the
precautions taken to ensure that there had been no change in the condition of the item and no opportunity for
someone not in the chain to have its possession. It is from the testimony of every witness who handled the
evidence from which a reliable assurance can be derived that the evidence presented in court is one and the
same as that seized from the accused.[35]

Thus, the following links must be established to ensure the preservation of the identity and integrity of the
confiscated drug: 1) the seizure and marking, if practicable, of the illegal drug recovered from the accused by the
apprehending officer; 2) the turnover of the illegal drug seized by the apprehending officer to the investigating
officer; 3) the turnover by the investigating officer of the illegal drug to the forensic chemist for laboratory
examination; and 4) the turnover and submission of the marked illegal drug seized from the forensic chemist to the
court.[36]

We stress that the marking of the seized drugs or other related items is crucial in proving the unbroken chain of
custody in drug-related prosecutions.[37] As the first link in the chain of custody, the marking is of vital importance
because succeeding handlers of the dangerous drugs or related items will use the marking as reference.[38] Also,
the marking of the evidence serves to separate the marked evidence from the corpus of all other similar or related
evidence from the time they are seized from the accused until they are disposed of at the end of the criminal
proceedings, thus preventing switching, "planting," or contamination of evidence. [39] In other words, the marking
immediately upon confiscation or recovery of the dangerous drugs or related items is indispensable in the
preservation of their integrity and evidentiary value.[40]

After a critical review of the records, we hold that the prosecution failed to establish that the drug specimens
presented in court are those allegedly se ized from the petitioner.

First, the records are bereft of any evidence that would clearly show that the twelve (12) plastic sachets
supposedly containing the shabuwere ever marked by SPO1 Evasco, whether at the scene or at the police station,
and that they were marked in the presence of the petitioner. In fact, based on the evidence on record, there is
only one set of markings on the twelve (12) plastic sachets - the markings of "A-1" to "A-12" made by P/Inspt.
Clemens a day after the items were seized.[41]

This finding is further supported by the testimony of P/Inspt. Clemens regarding the markings on the specimens
she examined:

PROSECUTOR EMMA S. SALVADOR JANER:

Q: Did you place any markings on the sachets of shabu for purposes of easy reference?
P/INSPT. CLEMENS:
A: Yes, ma'am.
Q: And what are those markings, madam witness?
A: D-193-04, my initials and A-1 to A-12.
Now, when you received the specimens of shabu, madam witness, [were] there any markings already placed
Q:
thereon aside from the markings that you [placed]?
A: Yes, ma'am. A black marking.
Q: And what are these markings in particular?
A: In the matchbox, "SBE" in all capital letters.
Q: Whose markings is this, madam witness, on the front portion of the matchbox?
A: [These are] my markings and also from the drug screener who placed his own marking.
xxxx
Now, there is a marking on the bottom portion of the matchbox SBE. Was that already placed when this
Q:
matchbox reached your office?
A: Yes, ma'am.[42] [Emphasis supplied.]
Based on the testimony of P/Inspt. Clemens, the only markings on the specimens submitted to her only consisted
of the ones on the matchbox. She made no mention of any markings (aside from her own) on the plastic sachets.

Second, there appears to be unexplained inconsistencies in the drug specimens submitted by the police officers to
the PNP Crime Laboratory for examination. On one hand, the Certification of Laboratory Examination dated
November 19, 2004 states:

SPECIMEN SUBMITTED:

One (1) match box labeled "RIZAL" containing twelve (12) small transparent plastic sachets marked "A" through
"L," each containing suspected methamphetamine hydrochloride (shabu), and having a total weight of 0.3485
gram.[43] [Emphasis supplied.]
On the other hand, the Chemistry Report dated November 20, 2004 states:

SPECIMEN SUBMITTED:

One (1) match box with trade mark "RIZAL" containing twelve (12) small tape-sealed transparent plastic sachets
with black and red markings marked as A-1 through A-12, each with white crystalline substance having a total net
weight of 0.3133 gram.[44][Emphasis supplied.]
These two laboratory reports show inconsistencies with regard to the referenced markings on the twelve (12)
plastic sachets and, more importantly, to the weight of the drug specimens - from 0.3485 gram in the first test and
only 0.3133 gram in the second test.

Clearly, the drug specimens that were allegedly seized by the police officers from the petitioner during the search
operation differed or, at the very least, were no longer in their original condition when examined by P/Inspt.
Clemens on November 20, 2004, a day after they were first subjected to an initial field test by SPO1 Usi.

Third, the prosecution's evidence is seriously lacking in details as to the links in the chain of custody of the seized
items from the time they were confiscated up to the time they were presented in court.

A thorough examination of the records reveals that the following are the only testimonies relating to the chain of
custody of the seized items:

PROSECUTOR EMMA S. SALVADOR JANER:

Q: xxx Now, what did you do with the confiscated items?
SPO1 EVASCO:
We brought the suspect as well as the confiscated items in the police station and after that, we brought the
A:
confiscated items to the court.[45]
xxxx
Q: xxx Now, after turning over the items together with the specimens of shabu to the court, what did you do
 next?
A: We filed a motion to withdraw the items to have it examined at the crime laboratory. [46]
xxxx
xxx Now, after filing the manifestation to the court to withdraw the specimens of shabu, what did you do
Q:
next?
A: I secured a request for laboratory examination.[47]
xxxx
Q: xxx Who transmitted the specimens of shabu to the crime laboratory for examination?
A: PO2 Wilfredo Lobrin and SPO1 Edgar Calupit.[48] [Emphasis supplied.]
PROSECUTOR EMMA S. SALVADOR JANER:
Madam Witness, [do] you recall as to when you [received] the specimen of shabu and the paraphernalia for
Q:
examination?
P/INSPT. CLEMENS:
A: Yes, ma'am.
Q: Will you please tell us?
The specimen was received in our office on November 19, 2004 and it was personally turned over to me on
A:
November 20, 2004 by PO3 Edgar Calupit.[49]
Q: [Do] you know as to who is the particular person who received the specimens of shabu?
A: According to our information, it was our receiving officer. [50] [Emphasis supplied.]
The above-quoted testimonies clearly point to SPO1 Calupit, PO2 Lobrin and an unnamed receiving officer as key
persons who handled the seized items. The prosecution, therefore, should have asked these persons to testify
regarding the circumstances under which they handled the subject items. Strangely, SPO1 Calupit and PO2 Lobrin,
who both actually testified in court, were not at all asked by the prosecution to testify on the handling of the
seized items in their custody. Rather, SPO1 Calupit's and PO2 Lobrin's testimonies only revolved around the
implementation of the search warrant.

What cannot be ignored is the lack of specific details that would convince the Court that the specimens examined
by SPO1 Usi and P/Inspt. Clemens were the same ones confiscated from the petitioner. For one thing, it is unclear
who actually brought the plastic sachets to the crime laboratory for examination. It is likewise unclear who
received the confiscated plastic sachets at the PNP Crime Laboratory or what happened to the specimens after the
initial field test conducted by SPO1 Usi. This is particularly relevant, considering that the confirmatory laboratory
examination - the more reliable test compared to the initial field test[51] - was only conducted a day after the
alleged seizure of the items.

Similarly, there is no record of who exercised custody and possession of the drug specimens after they were
examined by P/Inspt. Clemens and before they were presented before the court.

All told, the totality of these circumstances - the failure to mark the plastic sachets, the discrepancy in the weight,
and the uncertainty of the individuals who handled the seized items - broke the chain of custody and tainted the
integrity of the shabu ultimately presented as evidence before the trial court. [52] Given that the prosecution failed
to prove the indispensable element of corpus delicti, the petitioner must be acquitted on the ground of
reasonable doubt.

Criminal Case No. 04-712

The elements of illegal possession of equipment, instrument, apparatus and other paraphernalia for dangerous
drugs under Section 12 of RA No. 9165 are: (1) possession or control by the accused of any equipment, apparatus
or other paraphernalia fit or intended for smoking, consuming, administering, injecting, ingesting, or introducing
any dangerous drug into the body; and (2) such possession is not authorized by law.

In the present case, there is no evidence showing that the aluminum foil, tube, and lighters found in the
petitioner's house were fit or intended for introducing any dangerous drug into the body. The prosecution did not
bother to show that there were traces of shabu on any of these alleged drug paraphernalia. In fact, it appears that
the only evidence that the prosecution offered to prove this charge is the existence of the seized items by
themselves.

For the prosecution's failure to prove that the items seized were intended to be used as drug paraphernalia, the
petitioner must also be acquitted of the charge under Section 12 of RA No. 9165. Indeed, we cannot convict the
petitioner for possession of drug paraphernalia when it was not proven beyond reasonable doubt that these items
were used or intended to be used as drug paraphernalia.

WHEREFORE, premises considered, we hereby REVERSE and SET ASIDE the September 25, 2009 Decision and the
December 8, 2009 Resolution of the Court of Appeals in CA-G.R. CR No. 31602. Petitioner Luis Derilo y Gepoleo is
hereby ACQUITTED of the charge of violation of Sections 11 and 12, Article II of RA No. 9165, for failure of the
prosecution to prove his guilt beyond reasonable doubt. His immediate RELEASE from detention is hereby ordered
unless he is being held for another lawful cause.

Let a copy of this Decision be furnished the Director of the Bureau of Corrections, Muntinlupa City for immediate
implementation, who is then also directed to report to this Court the action he has taken within five (5) days from
his receipt of this Decision.

SO ORDERED.

THIRD DIVISION

[ G.R. No. 206224, January 18, 2016 ]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. JUAN ASISLO Y MATIO, ACCUSED-APPELLANT.

DECISION

PERALTA, J.:

Before Us is a Notice of Appeal assailing the Decision[1] dated June 1, 2012 of the Court of Appeals (CA) in CA-G.R.
CR-HC No. 04081, which affirmed the Decision[2] dated July 21, 2009 of the Regional Trial Court (RTC), Branch 61,
Baguio City, finding the accused-appellant Juan Asislo y Matio guilty of illegal sale of marijuana, a dangerous drug,
in violation of Section 5 of Republic Act (R.A.) No. 9165, otherwise known as the Comprehensive Dangerous Drugs
Act of 2002.

On May 14, 2008, accused-appellant Asislo, Jose Astudillo, and Samuel Pal-iwen were similarly charged with the
violation of Section 5 of R.A. No. 9165, to wit:

That on or about the 13th day of May, 2008 in the City of Baguio, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring, confederating and mutually aiding one another, did then
and there, willfully, unlawfully and feloniously deliver and transport NINETY-ONE (91) BRICKS and TWO (2) TUBE
TYPE OF DRIED MARIJUANA LEAVES, a dangerous drug, in different sizes, thickness, and weight, weighing a total of
ONE HUNDRED TEN (110) KILOGRAMS, to PDEA undercover agents, knowing fully well that said "marijuana dried
leaves" are dangerous drugs, in violation of the abovementioned provision of law. [3]

During the arraignment, all of the accused entered a plea of not guilty. Thereafter, the trial on the merits ensued.
As found by the trial court, the prosecution presented the following version of the events leading to the arrest of
all the accused:

Sometime in the second week of April 2008, the Philippine Drug Enforcement Agency-Cordillera Administrative
Region (PDEA-CAR) Office received intelligence information from PDEA-La Union about the proliferation and
distribution of marijuana in La Union, and the same revealed that the accused Juan Asislo had delivered a huge
volume of marijuana in Baguio City to an unidentified buyer sometime in the first week of April 2008. Regional
Director PCI Edgar S. Apalla directed IA1 Ferdinand Natividad to coordinate and communicate with PDEA-La Union
to build a case against Asislo.[4]

In the third week of April 2008, the confidential informant, "Jojo", arrived at the Office of PDEA-CAR in Baguio City
and introduced himself. Natividad instructed him to continue dealing with Asislo, and to inform them of any
developments regarding Asislo's alleged illicit activities. On April 28, 2008, Jojo reported that he met Asislo along
with his unidentified companions. Asislo asked him to look for a buyer of the 300 kilos of marijuana in exchange for
a commission. Natividad ordered Jojo to inform Asislo that a buyer from Manila was interested to purchase 200
kilos of marijuana.[5]

On May 2, 2008, Jojo reported that Asislo disclosed that the prevailing price of marijuana was P1,500.00 per kilo.
Per Natividad's instruction, Jojo apprised Asislo that the buyer from Manila who was willing to buy 200 kilos of
marijuana will be in Baguio for a vacation. In a phone call, Asislo insisted in talking with the buyer. Natividad talked
with him through the phone and reiterated to him his interest to buy 200 kilos of dried marijuana leaves. However,
Asislo notified him that he only had around 100 kilos of marijuana leaves. Natividad settled with Asislo, and asked
the latter to wait for his call for the delivery of the marijuana.[6]

On May 8, 2008, Asislo called Natividad that they were prepared to deliver about 110 kilos of marijuana on May
13, 2008. Upon learning the negotiations of Natividad with Asislo, PCI Apalla formed the team for the entrapment
operation composing of Natividad as the poseur-buyer, SPO4 Romeo Abordo as the team leader, and SPO2 Cabily
Agbayani and SPO1 Emerson Lingbawan as the members of the back-up team and arresting officers.[7]

In the evening of May 12, 2008, they agreed to have their transaction within the vicinity of Dontogan, Green
Valley, Baguio City, near a certain "car wash" area between 7 o'clock and 8 o'clock in the morning on May 13,
2008.[8]

Around 5 o'clock in the morning on May 13, 2008, the entrapment and arresting team proceeded to the area.
Asislo related to Natividad that he was with other four individuals on board a dark blue Kia Besta van with plate
number XFC 682. At 7:30 in the morning, the Besta van stopped at about 30 meters from the agreed place of
transaction. Two men alighted from the vehicle and approached Natividad. One of them was Jojo, who then
introduced the other as Asislo. Natividad asked Asislo to see the marijuana before he pays. Thereafter, Asislo
ordered the van's driver, Jose Astudillo, to open the compartment. Natividad saw five sacks and a plastic bag.
Asislo asked his other companion, Samuel Pal-iwen, to help him pull out one sack and opened the same in front of
Natividad. The sack was loaded with bricks of marijuana.[9]

Natividad removed his ball cap, their pre-arranged signal, and held Asislo in a tight embrace. He removed his
service firearm and introduced himself as a PDEA agent. The back-up team rushed to the scene and arrested the
other accused. SPO2 Agbayani recited to Asislo and his companions their constitutional rights. SPO1 Lingbawan
searched the van, and found four sacks containing bricks of marijuana and a plastic bag with two pieces of tube
type of marijuana leaves inside. SPO4 Abordo seized Asislo's cell phone. The van used in transporting the
marijuana was impounded at the PDEA-CAR Office.[10]

Because of the volume of the confiscated dangerous drugs, the team brought the sacks of marijuana to the PDEA-
CAR Field Office for proper markings and documentations. Thereafter, the drugs were turned over to the
Philippine National Police (PNP) Crime Laboratory Office at Camp Bado Dangwa, La Trinidad, Benguet for chemical
analysis. Asislo and his two companions were subjected to urine examination, which yielded negative results, at
the PNP Laboratory Office.[11]

On the other hand, the version of the defense is as follows:

At about 4 o'clock in the afternoon on May 11, 2008, Astudillo, after a day's work of driving a passenger jeepney,
was watching a billiards game inside a building at the jeepney station at Sasaba, Santol, La Union. The store where
the other accused, Asislo and Pal-iwen, worked as broom makers was also in the same building.[12]

Around that time, Astudillo saw Jojo conversing with Asislo. While busy making brooms, Pal-iwen was nearby and
within hearing distance. Astudillo heard Jojo inquiring about anyone who leases any closed vehicle for
transportation of brooms and bananas. Asislo suggested one Jimmy Tad-o. He accompanied Asislo and Jojo when
they proceeded to Tad-o's place. After reaching an agreement, Tad-o asked Astudillo to travel with Asislo and to
return the vehicle at Sasaba.[13]

Around 1 o'clock in the morning on May 13, 2008, Pal-iwen saw Jojo and some companions load brooms and sacks
in the van. With Pal-iwen and Asislo, Jojo drove the van bound for Baguio City. Jojo unloaded the brooms and
bananas at the San Fernando City Market. Then, Astudillo showed up after Asislo called him on the cell phone.

Astudillo then drove the van to Dontogan, Green Valley, Baguio City. Upon arrival, Asislo and Jojo alighted from the
van and proceeded to the construction site of Asislo's uncle for coffee. The PDEA agents suddenly arrived and
arrested them. They were brought to the PDEA-CAR Office at the Melvin Jones, Burnham Park, Baguio City where
they were accused of delivering marijuana.

On July 21, 2009, the Baguio City RTC convicted Asislo of the crime of illegal sale, while it acquitted Astudillo and
Pal-iwen due to insufficiency of evidence against them and the failure of prosecution to establish conspiracy. In
convicting accused-appellant Asislo, the RTC ratiocinated that the sale of illegal drugs, like any other sale, is
perfected upon the meeting of the minds between the vendor and the vendee with respect to the subject matter
and as regards the cause or consideration.[14] The dispositive portion of the decision reads:

WHEREFORE, this Court renders judgment finding the accused Juan Asislo GUILTY beyond reasonable doubt and he
is sentenced to suffer Life Imprisonment and to pay a fine of P5,000,000.00.

Accused Jose Astudillo and Samuel Pal-iwen are hereby ACQUITTED for insufficiency of evidence and they are
ordered RELEASED from custody unless being held for some other lawful reasons which require their continued
detention.

SO ORDERED.[15]

Accused-appellant Asislo, through the Public Attorney's Office, appealed before the CA arguing that the RTC erred
in convicting him due to the lapses in the chain of custody of the seized dangerous drugs, and the failure of the
prosecution to establish his guilt beyond reasonable doubt. The CA, in affirming the decision of the RTC, held that
the presentation of the buy-bust money is not indispensable to the prosecution of a drug case. [16] However, the CA
reduced the fine to P1,000,000.00, the fallo of the decision reads:

WHEREFORE, in view of the foregoing, the Decision dated July 21, 2009 rendered by the Regional Trial Court of
Baguio City, Branch 61, is, except for the amount of fine imposed which is REDUCED to One Million (P1,000,000.00)
Pesos, hereby AFFIRMED.

SO ORDERED.[17]

Aggrieved, accused-appellant Asislo now seeks his acquittal before this Court lamenting that the prosecution failed
to establish an unbroken link in the chain of custody. He avers that the PDEA agents did not comply with the
procedures mandated by Section 21 of R.A. No. 9165, since there was a lapse of time from the seizure of the illicit
drugs to the marking and inventory. In his Supplemental Brief, Asislo maintains that the fact that it was only
Natividad who marked the confiscated drugs casts a shadow of doubt to the authenticity of the evidence
presented before the court.

The appeal lacks merit.

Section 21 (1), Article II of R.A. No. 9165 provides:

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;

Correlatively, Section 21 (a) of the Implementing Rules and Regulations (IRR) of R.A. No. 9165 provides:

(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[.][18]

In many cases, this Court has held that "while the chain of custody should ideally be perfect, in reality it is not, as it
is almost always impossible to obtain an unbroken chain."[19] Since the law itself provided exceptions to its
requirements, the non-compliance with Section 21 of the IRR is not fatal and does not make the items seized
inadmissible.[20] The most important factor is "the preservation of the integrity and the evidential value of the
seized items as the same would be utilized in the determination of the guilt or innocence of the accused. [21]

In the prosecution of a case for illegal sale of dangerous drugs, the primary consideration is to ensure that the
identity and integrity of the seized drugs have been preserved from the time they were confiscated from the
accused until their presentation as evidence in court.[22]The prosecution must establish with moral certainty that
the specimen submitted to the crime laboratory and found positive for dangerous drugs, and finally introduced in
evidence against the accused was the same illegal drug that was confiscated from him. [23]

The records of the case show that the authorities were able to preserve the integrity of the seized marijuana, and
establish in the trial that the links in the chain of custody of the same were not compromised. While it is true that
the drugs were not marked immediately after its seizure and not in the presence of the accused, the prosecution
was able to prove, however, that the bricks of marijuana contained in five sacks and a plastic bag confiscated
during the buy-bust operation were the same items presented and identified before the court.
After the seizure of the marijuana and the arrest of the accused, IAl Natividad called PCI Apalla through mobile
phone and reported the operation. Due to the volume of the confiscated drugs, PCI Apalla ordered IAl Natividad
and his companions to bring the sacks of marijuana to their field office for proper markings and documentations.
Thereafter, IAl Natividad, SPO2 Agbayani and SPO1 Lingbawan rode the Besta van with Asislo, Pal-iwen and
Astudillo. IAl Natividad stayed at the back of the van beside the confiscated drugs. Upon reaching the office, they
placed the three accused in jail and then unloaded the five sacks and the plastic bag. Then, IAl Natividad marked
each of the sacks and on top of each brick with "Exhibit A," his initials "FTN," his signature and the date "5-13-08."
After the marking, the sacks were stored in their stockroom, which Natividad locked. He then prepared the
documents such as the inventory of the items and the request for physical examination. In the afternoon of the
same day, the authorities conducted an inventory of the seized drugs and photographed the same while witnessed
by the assistant city prosecutor, an elected official and a member of the media. PCI Apalla requested for the
physical examination of the three accused and for the laboratory examination of the drugs. The confiscated items
were then turned over to the evidence custodian who then brought the same, together with the three accused, to
Camp Dangwa for examination. The PNP Regional Crime Laboratory received the seized items at 4:30 in the
afternoon of the same day.[24] After the examination, the submitted items tested positive for the presence of
marijuana, as reflected in the Chemistry Report No. D-023-2008 prepared by Forensic Chemical Officer Edward
Gayados.[25] The items were then submitted to the RTC for safekeeping.[26] Subsequently, IA1 Natividad identified
in court the marked items as the one he seized from Asislo during the operation.

Although it was not specified who received the items in the laboratory in the testimony of the prosecution
witnesses, the fact that the minute details of the seized items described in the chemistry report coincide with the
specifications in the inventory prepared by the PDEA leaves no doubt that the bricks of marijuana received by the
laboratory for examination were the same drugs seized by the PDEA agents from Asislo.

This Court, therefore, finds that the court a quo and the CA aptly held that the requirements under R.A. No. 9165
had been sufficiently complied with. The prosecution successfully established the unbroken chain of custody over
the recovered marijuana, from the time the apprehending officers seized the drugs, to the time it was brought to
the PDEA Office, then to the crime laboratory for testing, until the time the same was offered in evidence before
the court.

The RTC, which the CA affirmed, convicted accused-appellant with the crime of illegal sale of dangerous drugs.
Article II, Section 5 of R.A. No. 9165 provides:

SECTION 5. Sale, Trading, Administration, Dispensation, Delivery, Distribution and Transportation of Dangerous
Drugs and/or Controlled Precursors and Essential Chemicals. — 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 sell, trade, administer, dispense, deliver, give
away to another, distribute, dispatch in transit or transportany dangerous drug, including any and all species of
opium poppy regardless of the quantity and purity involved, or shall act as a broker in any of such transactions. [27]

The acts, such as deliver and sell, enumerated in the foregoing provision have been explicitly defined under Article
I, Section 3 of the same statute, to wit.:

Section 3. Definitions. — As used in this Act, the following terms shall mean:

xxxx

(k) Deliver. — Any act of knowingly pcissing a dangerous drug to another, personally or otherwise, and by any
means, with or without consideration.
xxxx

(ii) Sell. — Any act of giving away any dangerous drug and/or controlled precursor and essential chemical whether
for money or any other consideration.

xxxx

A review of the allegations in the Information in Criminal Case No. 28307-R readily reveals that accused-appellant
Asislo is charged with "delivery and transport" of marijuana although the Information charges the accused with
violation of Section 5, R.A. No. 9165.

Accused-appellant Asislo could still be convicted for violation of Article II, Section 5 of R.A. No. 9165, because the
evidence on record clearly establish "delivery and transport" although prosecution witness IAl Natividad admitted,
during the direct[28] and cross[29]examination, the lack of consideration/payment for the 110 kilograms of
marijuana:

PROS. ESPINOSA:
Q: Mr. witness, you said that P1,500.00 per kilo?
A: Yes, ma'am.

Q: Did you prepare for marked money for the buying of [this] marijuana?
A: Actually we do not have that big amount of money, as an arrangement before our dispatch for that operation I
will make a trick with the suspect Juan that I will first see the items before I will [hand] to him the money, ma'am.

Q: So you didn't prepare for any P1,500.00 money or fake money?

A: No, ma'am.

xxxx

Q: You mean you talk about the PI50,000.00 only 3 hours before the operation?
A: Yes, ma'am.

Q: You did not [think] of that even the first meeting with the suspect of preparing the P1,500.00?
A: No, ma'am because this is only delivery.

ATTY. AWISAN:

Q: So this was a buy-bust operation, is that correct?

A: Actually, Sir.

Q: Did you prepare any buy-bust money for that operation?

A: Actually this is not purely a buy-bust operation[,] this is a mere delivery of item, Sir.

Q: And when you say delivery[,] how would you differentiate that from a buy-bust operation?
A: In a buy-bust operation[,] there is an exchange for [monetary] consideration between poseur-buyer and the
suspect[,] whereas in delivery there is no monetary consideration but the items... the item was shown to the
poseur-buyer there is no need to show him the supposed money, Sir.

xxxx

Q: But you mentioned earlier that the agreement between you and Juan was for the sale of marijuana at the price
of P1,500.00 per kilo?
A: If they could not deliver the item if there is no monetary consideration. Sir.

Q: So actually there is a buy-bust operation?

A: Yes, Sir.

Q: But you did not prepare for the buy-bust operation?

A: Yes. Sir.

Q: And you proceeded to the place without any buy-bust money?

A: Yes. Sir.

xxxx

Q: During that short span of time you were only about to talk a little?
A: Yes, Sir.

Q: And Juan asked for the money?

A: No[,] I was the one who asked the item before I will give the money to him, Sir.

Q: So Juan did not ask from you the payment of any item during the conversation?
A: Yes because there was already an arrangement, Sir.

xxxx

In the crime of illegal sale of dangerous drugs, the delivery of the illicit drug to the poseur-buyer and the receipt by
the seller of the marked money consummate the illegal transaction.[30] In the case at bar, the sale was not
consummated since there was no receipt of the consideration. IA1 Natividad arrested Asislo immediately after the
latter opened one of the sacks loaded with bricks of marijuana. It was also admitted that the agents did not
prepare marked money for the buy-bust operation.

Nevertheless, Asislo can still be liable for violation of Article II, Section 5 of R.A. No. 9165 for illegal delivery and
transportation of marijuana.

The essential element of the charge of illegal transportation of dangerous drugs is the movement of the dangerous
drug from one place to another.[31] As defined in the case of People v. Mariacos,[32] "transport" means "to carry or
convey from one place to another."[33]

There is no definitive moment when an accused "transports" a prohibited drug. When the circumstances establish
the purpose of an accused to transport and the fact of transportation itself, there should be no question as to the
perpetration of the criminal act.[34] The fact that there is actual conveyance suffices to support a finding that the
act of transporting was committed.[35]

In the instant case, records established beyond any doubt that accused-appellant Asislo was found in possession of
the sacks containing marijuana, and was arrested while in the act of delivering or transporting such illegal drugs to
Natividad, the poseur-buyer, at the agreed place in Dontogan, Green Valley, Baguio City, near a certain "car wash."

It Is undisputed that Asislo, who was a farmer and a broom maker at the time of his arrest,[36] had no authority
under the law to deliver the marijuana, a dangerous drug. The testimony of IA1 Natividad provided the following
details in his direct testimony:

PROS. ESPINOSA
Q: Before contacting the delivery of marijuana bricks, Mr. witness how did you come about with the delivery of the
marijuana?
A: Sometime on the second week of April 2008[,] our office received an intelligence information relayed to us by
our intelligence counterpart in La Union, ma'am.

xxxx

Q: So what happened after Apalla received these information, Mr. witness?

A: PCI Apalla designated me as the case officer and instructed me also that I keep in touch with our counterpart in
La Union for purposes of strengthening the case against the suspect personalities, ma'am.

xxxx

Q: So what happened after that, Mr. witness when Apalla tell you that you will now coordinate with the
intelligence officer counterpart in La Union?
A: I coordinated with our counterpart in La Union between 2nd and 3rd week of April, 1 personally contacted PDEA
Region 1 regarding the illicit activity of the suspects and one of the leader of the group is with an alias Juan from
Sasaba, Santol, La Union and he has also an unidentified cohorts, ma'am.

Q: This Juan you are telling me is Juan Asislo, am I right, Mr. witness?
A: Yes, ma'am.

xxxx

Q: When the CI introduced himself to you, did he not mention about the activities of the suspects, who are the
suspects, he did not made mention of that?
A: He did mention, ma'am.

Q: So what did he tell you about the activities of these persons?

A: That they were involved in the proliferation and distribution of marijuana in La Union and other provinces like
Benguet and Baguio, ma'am.

xxxx

Q: What are these drug activities then?

A: They deliver undetermined volume of marijuana to the unidentified buyers of marijuana in La Union and nearby
provinces, ma'am.

xxxx

Q: So what did they talk about?

A: The CI relayed to the suspect that his prospective buyer from Manila is willing to buy 200 kilos of marijuana in
that agreed price, ma'am.

Q: So what was the response of the suspect?

A: During the conversation, the suspect advise[d] the CI that he wants also to talk with the prospective buyer,
ma'am.

xxxx

Q: So what happened after that?

A: So as per request by suspect Juan the Cl gave to me his mobile phone and I talked with suspect Juan regarding
the transaction, ma'am.

xxxx

Q: You talked immediately about the transaction, you did not even introduce yourself to the suspect, Mr. witness?
A: I introduced myself as the buyer of marijuana, ma'am.

Q: How did you introduce yourself to him, did you use any name?
A: No, ma'am I just told him that I am the buyer of Jojo, the name of the CI.

Q: So what did you tell the suspect, that you are interested to buy 200 kilos of marijuana?
A: Yes, ma'am.

Q: What was the reaction of the suspect?

A: He agreed with the transaction but I advise him that I would agree with the prevailing price provided that they
should deliver the items in Baguio City because I was still here in Baguio for vacation for 2 weeks, I pretended that I
was here in Baguio City for 2 weeks vacation, ma'am.

Q: So what was the reaction of the suspect when you told him that the marijuana should be delivered here in
Baguio City?
A: He agreed, ma'am but he insisted that the 200 kilos I ordered is not available because other stocks have been
ordered by the other buyers.

xxxx

Q: While the Besta van was already approaching, what happened again?
A: I notice that they stopped in front of the car wash and there were 2 men who alighted from the Besta van,
ma'am.

Q: And who were these 2 persons?

A: I recognized that the one of the persons who alighted from that Besta van is our CI Jojo so I walk towards and
closer with them, ma'am.

Q: Who was with Jojo that time?

A: Juan Asislo, ma'am.

Q: How do you know that fact?

A: Jojo or the CI introduced me to Juan Asislo, ma'am.

Q: How were you introduced?

A: That I am the buyer of their stuff, ma'am.

xxxx

Q: When this Juan Asislo told you that he was really Asislo, what happened after that?
A: I talked with Asislo about the transaction and I asked him the whereabouts of the stuff that I ordered from
them, ma'am.

Q: So what was the response of Asislo?

A: He told me that the [stuff] were placed at the back of the Besta van, ma'am.

Q: When Asislo told you that the [stuff] were at the back of the van, what was your response?
A: I told him that before I give the money I should see first the stuff, ma'am.
Q: What was the reaction of Asislo?
A: Asislo agreed to my proposal, ma'am.

Q: So what did you do?

A: Juan advise his driver to alight from the van and he will open the back of the Besta van, ma'am.

xxxx

Q: Who pulled one of the sacks?

A: His companion, Samuel Pal-iwen, Ma'am.

Q: He pulled out one of the white sacks with NFA markings, is it not?
A: Yes, Ma'am.

Q: Wfhen he pulled out the white sack having the NFA markings what happened after that?
A: When he pulled out one of the sacks with NFA markings from the Besta Van I requested suspect Juan to open it
and when he opened the sack T saw personally the tens of bricks of marijuana dried in the form of bricks so upon
seeing the contents of that sack subsequently I removed my ball cap from my head as the pre-arranged signal that
the transaction was consummated, Ma'am.

x x x[37]

It was settled in People v. Hoble[38] that "possession of prohibited drugs, coupled with the fact that the possessor is
not a user thereof, cannot indicate anything else but the intention to sell, distribute or deliver the prohibited
stuff." In an earlier case, the Court considered three plastic bags of marijuana leaves and seeds as considerable
quantity of drugs, such that possession of similar amount of drugs and the fact that the accused is not a user of
prohibited drugs clearly demonstrates his intent to sell, distribute and deliver the same. [39]

In the case at bar, Asislo was found in possession of 110 kilograms of dried marijuana leaves contained in five sacks
and a plastic bag, and that his drug test yielded negative result. The following circumstances strongly indicate that
he has the intention to sell, distribute, deliver or transport the said marijuana.

Records reveal that the prosecution has proven in the trial the purpose of the accused in the transportation of
marijuana, and the fact of transportation itself. Particularly, the following circumstances establish that the crime of
illegal transportation of dangerous drugs has been committed:

a. There was a prior unlawful arrangement between Natividad and the accused-appellant Asislo that the former
will buy marijuana from the latter;
b. There is a designated place of delivery, which is Dontogan, Green Valley, Baguio City, near a certain "car wash,"
and a specified time frame, on May 13, 2008 between 7 o'clock and 8 o'clock in the morning, and limited to a
particular person whom Natividad himself has transacted with through the cell phone, such that whoever would
appear thereat would be it.
c. Asislo leased the van for P2,000.00 from Tad-o for transportation from Santol, La Union to Baguio City.[40]
d. Asislo was apprehended on the street, immediately after he opened the sack loaded with blocks of marijuana,
and while he was in the act of delivering the drugs to Natividad.
e. The agents found a substantial volume of marijuana loaded at the back of the leased vehicle.

Asislo's denial deserves scant consideration. His claim that it was the informant Jojo who leased the van to
transport bananas and brooms was belied by the owner himself in his motion to recover the vehicle wherein he
alleged that it was Asislo who hired the van from him. Furthermore, when Natividad approached Asislo, was
introduced by Jojo as the buyer of marijuana, and asked where his order was, Asislo immediately understood who
Natividad was and what he meant about the order.

Based on the charges against Asislo and the evidence presented by the prosecution, accused-appellant Asislo is
guilty beyond reasonable doubt of illegal delivery and transportation of marijuana under Article II, Section 5 of
R.A. No. 9165.

As to the penalty, Article II, Section 5 of R.A. No. 9165 prescribes that the penalties for the illegal delivery and
transportation of dangerous drugs shall be life imprisonment to death and a fine ranging from Five Hundred
Thousand Pesos (P500,000.00) to Ten Million Pesos (P10,000,000.00). Thus, accused-appellant Asislo, for his illegal
delivery and transportation of 110 kilograms of marijuana in Criminal Case No. 28307-R, is sentenced to life
imprisonment, and ordered to pay a fine of One Million Pesos (P1,000,000.00).

WHEREFORE, the appealed Decision in CA-G.R. CR-HC No. 04081 is hereby AFFIRMED. The accused-appellant Juan
Asislo y Matio, in Criminal Case No. 28307-R, is found GUILTY beyond reasonable doubt of illegal delivery and
transportation of 110 kilograms of marijuana penalized under Article II, Section 5 of R.A. No. 9165, and is
sentenced to LIFE 1, and ORDERED to PAY a FINE of One Million Pesos (PI,000,000.00).

SO ORDERED.

FIRST DIVISION

[ G.R. No. 202687, January 14, 2015 ]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. JERIC PAVIA Y PALIZA @ "JERIC" AND JUAN BUENDIA Y
DELOS REYES @ "JUNE", ACCUSED-APPELLANTS.

RESOLUTION

PEREZ, J.:

For resolution of the Court is the appeal filed by Jeric Pavia and Juan Buendia (appellants) from the Decision[1] of
the Court of Appeals (CA) dated 7 February 2012 in CA-G.R. CR-H.C. No. 04020. The CA affirmed the Judgment[2] of
the Regional Trial Court (RTC), Branch 31, San Pedro, Laguna which found appellants guilty beyond reasonable
doubt of the offense of illegal possession of dangerous drugs punishable under Section 13, Article II of Republic Act
(R.A.) No. 9165. Appellants were sentenced to suffer the penalty of life imprisonment and to pay a fine of
P500,000.00.

The Antecedents

On 29 March 2005, at around 6:00 in the evening, a confidential informant reported to SPO3 Melchor dela Peña
(SPO3 Dela Peña) of the San Pedro Municipal Police Station, San Pedro, Laguna, that a pot session was taking place
at the house of a certain "Obet" located atBarangay Cuyab, San Pedro, Laguna. Upon receipt of the information,
SPO3 Dela Peña formed a team to conduct police operations against the suspect. The team was composed of the
confidential informant, PO2 Rommel Bautista (PO2 Bautista), PO3 Jay Parunggao (PO3 Parunggao), PO1 Jifford
Signap and SPO3 Dela Peña as team leader.[3]

At around 9:00 in the evening of the same date, the team proceeded to the target area. When the team arrived,
the members saw that Obet's house was closed. Since the house was not surrounded by a fence, PO2 Bautista
approached the house and peeped through a small opening in a window where he saw four persons in a circle
having a pot session in the living room. PO3 Parunggao then tried to find a way to enter the house and found an
unlocked door. He entered the house, followed by PO2 Bautista and they caught the four persons engaged in a pot
session by surprise. After they introduced themselves as police officers, they arrested the four suspects and seized
the drug paraphernalia found at the scene.[4] Among those arrested were herein appellants, from each of whom a
plastic sachet containing white crystalline substance were confiscated by PO3 Parunggao after he conducted a
body search on their persons.[5] PO3 Parunggao marked the plastic sachet he seized from appellant Pavia with "JP,"
representing the initials of Jeric Pavia while that taken from appellant Buendia was marked, also by PO3
Parunggao, with "JB," representing the initials of Juan Buendia. [6] These plastic sachets were transmitted to the
crime laboratory for qualitative examination where they tested positive for "shabu."[7]

Consequently, appellants were charged with violation of Section 13, Article II of R.A. No. 9165 in two separate but
identically worded informations which read:

That on or about 29 March 2005, in the Municipality of San Pedro, Province of Laguna, Philippines, and within the
jurisdiction of this Honorable Court accused without authority of the law, did then and there willfully, unlawfully
and feloniously have in his possession, control and custody [of] METHAMPHETAMINE HYDROCHLORIDE, commonly
known as shabu, a dangerous drug, weighing zero point zero two (0.02) gram, in the company of two persons. [8]

When arraigned, both appellants pleaded not guilty to the offense.[9]

A joint trial of the cases ensued.

In defense, appellants provided a different version of the incident. According to them, on the questioned date and
time, they were roaming the streets of Baranggay Cuyab, selling star apples. A prospective buyer of the fruits
called them over to his house and requested them to go inside, to which they acceded. When they were about to
leave the house, several persons who introduced themselves as policemen arrived and invited appellants to go
with them to the precinct. There, they were incarcerated and falsely charged with violation of the Comprehensive
Drugs Act of 2002.[10]

The Ruling of the RTC

The trial court found that the prosecution was able to prove the offense charged through the spontaneous,
positive and credible testimony of its witness. The trial court noted that the police officers carried out a lawful
arrest before they proceeded with the bodily search of appellants. Moreover, there was no clear and convincing
evidence that the team of PO3 Parunggao was inspired by any improper motive when they carried out their
operation. Thus, the testimony of PO2 Bautista on the witness stand, narrating the events leading to the
apprehension of appellants, deserves full faith and credit.[11]

The Ruling of the Court of Appeals

On appeal, the CA affirmed the decision of the RTC, upon a finding that the evidence on record support the trial
court's conclusion that a lawful arrest, search and seizure took place, and that the prosecution fully discharged its
burden of establishing, beyond reasonable doubt, all the elements necessary for the conviction of the offense
charged.[12]

On the contention of appellants that their warrantless arrest was illegal and, therefore, the items seized from them
as a result of that arrest were inadmissible in evidence against them, the CA held that this argument totally lacks
merit. According to the CA:
We stress at the outset that the [appellants] failed to question the legality of their warrantless arrest. The
established rule is that an accused [is] estopped from assailing the legality of [his] arrest if [he] failed to move for
the quashing of the Information against [him] before [his] arraignment. Any objection involving the arrest or the
procedure in the court's acquisition of jurisdiction over the person of an accused must be made before [he]
enter[s] [his] plea; otherwise, the objection is deemed waived.

In any event, we carefully examined the records and now hold that the warrantless arrests conducted on
[appellants] were valid. Section 5, Rule 113 of the Rules on Criminal Procedure lists the situations when a person
may be arrested without a warrant x x x.

xxxx

Paragraph (a) of Section 5 is commonly known as an in flagrante delicto arrest. For a warrantless arrest of an
accused caught in flagrante delicto to be valid, two requisites must concur: (1) the person to be arrested must
execute an overt act indicating that he has just committed, is actually committing, or is attempting to commit a
crime; and (2) such overt act is done in the presence or within the view of the arresting officer.

After a careful evaluation of the evidence in its totality, we hold that the prosecution successfully established that
the petitioner was arrested in flagrante delicto.

We emphasize that the series of events that led the police to the house where the pot session was conducted and
to their arrest were triggered by a "tip" from a concerned citizen that a "pot session" was in progress at the house
of a certain "Obet" at Baranggay Cuyab, San Pedro, Laguna. Under the circumstances, the police did not have
enough time to secure a search warrant considering the "time element" involved in the process (i.e., a pot session
may not be an extended period of time and it was then 9:00 p.m.). In view of the urgency, SPO3 Melchor dela Peña
immediately dispatched his men to proceed to the identified place to verify the report. At the place, the
responding police officers verified through a small opening in the window and saw the accused-appellants and
their other two (2) companions sniffing "shabu" to use the words of PO2 Bautista. There was therefore sufficient
probable cause for the police officers to believe that the accused-appellants were then and there committing a
crime. As it turned out, the accused-appellants indeed possessed and were even using a prohibited drug, contrary
to law. When an accused is caught in flagrante delicto, the police officers are not only authorized but are duty-
bound to arrest him even without a warrant.

In the course of the arrest and in accordance with police procedures, the [appellants] were frisked, which search
yielded the prohibited drug in their possession. These circumstances were sufficient to justify the warrantless
search x x x that yielded two (2) heat-sealed plastic sachets of "shabu." x x x

xxxx

All the x x x requirements for a lawful search and seizure are present in this case. The police officers had prior
justification to be at a certain "Obet's" place as they were dispatched by their desk officer; they arrested the
[appellants] as they had reason to believe that they were illegally using and possessing a prohibited drug and drug
paraphernalia. The search of the [appellants] incident to their arrest yielded the confiscated crystalline substance
which later proved to be "shabu". In the course of their lawful intrusion, they inadvertently saw the various drug
paraphernalia scattered in the living room. As these items were plainly visible, the police officers were justified in
seizing them.

xxxx

As correctly found by the trial court, the [appellants'] story is unworthy of belief. Their denial must fail in the light
of the positive identification and declarations made by the prosecution witness. As stated earlier, PO2 Bautista
testified in a straightforward and categorical manner regarding the identities of the malefactors. He did not waver
despite the defense counsel's rigid questioning.

Courts generally view the defense of denial with disfavor due to the facility with which an accused can concoct it to
suit his or her defense. As evidence that is both negative and self-serving, this defense cannot attain more
credibility than the testimony of the prosecution witness who testified clearly, providing thereby positive evidence
on the various aspects of the crime committed. One such positive evidence is the result of the laboratory
examination conducted by the PNP crime Laboratory on the drugs recovered from the [appellants] which revealed
that the confiscated plastic sachets tested positive for the presence of "shabu": two (2) heated transparent plastic
sachet with markings "JB" and "JP" containing 0.02 gram of white crystalline substance each both yielded positive
results.[13]

With respect to appellants' claim that the prosecution failed to establish the chain of custody because the police
operatives failed to strictly comply with Section 21 (1) of R.A. No. 9165, the CA has this to say:

The chain of custody rule requires that the admission of an exhibit be preceded by evidence sufficient to support a
finding that the matter in question is what the proponent claims it to be.

Contrary to what the [appellants] want to portray, the chain of custody of the seized prohibited drug was shown
not to have been broken. After the seizure of the plastic sachets containing white crystalline substance from the
[appellants'] possession and of the various drug paraphernalia in the living room, the police immediately brought
the [appellants] to the police station, together with the seized items. PO3 Parunggao himself brought these items
to the police station and marked them. The plastic sachets containing white crystalline substance was marked "JB"
and "JP". These confiscated items were immediately turned over by PO2 Bautista to the PNP Regional Crime
Laboratory Office Calabarzon, Camp Vicente Lim, Calamba City for examination to determine the presence of
dangerous drugs. After a qualitative examination conducted on the specimens, Forensic Chemist Lorna Ravelas Tria
concluded that the plastic sachets recovered from the accused-appellants tested positive for methylamphetamine
hydrochloride, a prohibited drug, per Chemistry Report Nos. D-0381-05 and D-0382-05.

When the prosecution presented these marked specimens in court, PO2 Baustista positively identified them to be
the same items they seized from the [appellants] and which PO3 Parunggao later marked at the police station,
from where the seized items were turned over to the laboratory for examination based on a duly prepared
request.

Thus, the prosecution established the crucial link in the chain of custody of the seized items from the time they
were first discovered until they were brought for examination. Besides, as earlier stated, the [appellants] did not
contest the admissibility of the seized items during the tria1. The integrity and the evidentiary value of the drugs
seized from the accused-appellants were therefore duly proven not to have been compromised.

Jurisprudence teems with pronouncements that failure to strictly comply, with Section 2l (1), Article II of R.A. No.
9165 does not necessarily render an accused's arrest illegal or the items seized or confiscated from him
inadmissible. What is of utmost importance is the preservation of the integrity and the evidentiary value of the
seized items, as these would be utilized in the determination of the guilt or innocence of the accused. In the
present case, we see substantial compliance by the police with the required procedure on the custody and control
of the confiscated items, thus showing that the integrity of the seized evidence was not compromised. We refer
particularly to the succession of events established by evidence, to the overall handling of the seized items by
specified individuals, to the test results obtained, under a situation where no objection to admissibility was ever
raised by the defense. All these, to the unprejudiced mind, show that the evidence seized were the same evidence
tested and subsequently identified and testified to in court. [14] x x x

Our Ruling
We deny the appeal.

Appellants are charged under Section 13, Article II of R.A. No. 9165, which provides:

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.

The elements for the illegal possession of dangerous drugs under Section 13 of R.A. No. 9165 are the same as
those for the violation of Section 11 of the law: (1) possession by the accused of an item or object identified to be a
prohibited or dangerous drug; (2) such possession is not authorized by law; (3) the free and conscious possession
of the drug by the accused,[15] with the additional element that (4) the accused possessed the prohibited or
dangerous drug during a social gathering or meeting, or in the company of at least two persons.

As correctly found by the CA, the evidence for the prosecution showed the presence of all these elements. The
testimony of PO2 Bautista on this point is determinative:

q. When you said PO3 Parunggao saw that the door of the house was not locked, what did you do?
a. He entered the house and we followed him, maam [sic].
xxxx
q. In what part of the house where [sic] this [sic] people engaged in a pot session?
a. At the sala, maam [sic].
q. And what was their reaction when PO3 Parunggao and the rest of the team barged in?
a. They were surprised, maam [sic].
xxxx
q. And what did you do after that?
a. PO3 Parunggao introduced ourselves as police officers, maam [sic].
q. What happened after that?
We confiscated the drug paraphernalias [sic] and then PO3 Parunggao conducted body search and was
a.
able to confiscate shabu from the two of the people there maam [sic].
q. Where were you when PO3 Parunggao conducted a search?
a. I was behind him, maam [sic].
q. Did you see him conducting a search?
a. Yes, maam [sic].
q. What did you see him doing?
a. I saw that he was able to confiscate small plastic sachet containing shabu, maam [sic].
q. From whom?
a. From Jeric Pavia and Juan Buendia, maam [sic].
q. If this Jeric Pavia is in court right now, will you be able to point to him?
a. Yes, maam [sic].
q. Please point to him?
That man in the first row wearing yellow shirt, maam [sic] (pointed to a person inside the courtroom
a.
who, when asked answered by the name of Jeric Pavia).
You said that you saw PO3 Parunggao confiscated plastic sachet containing shabu from Jeric Pavia,
q.
from what part of his body was he able to confiscate the same?
a. From the pocket of Jeric Pavia, maam [sic].
xxxx
You said that PO3 Parunggao confiscated plastic sachet with white crystalline substance from two
q.
person [sic], one was identified as Jeric Pavia, who was the other one?
a. It was Juan Buendia, maam [sic]
q. Please identify him if he is in court?
That man also in the first row, at the right portion, wearing yellow shirt (pointed to a person who, when
a.
asked answered by the name of Juan Buendia).
q. Where were you when PO3 Parunggao confiscated from Juan Buendia the plastic sachet of shabu?
a. I was behind him, maam [sic].
xxxx
q. On [sic] what part of the body of Juan Buendia was the item taken by Officer Parunggao?
a. Also in [sic] his pocket, maam [sic].[16]

The same testimony of PO2 Bautista also established the chain of custody of the prohibited drugs taken from
appellants. Thus:

You said that you saw PO3 Parunggao confiscated [sic] plastic sachet containing shabu from Jeric Pavia,
q.
from what part of his body was he able to confiscate the same?
a. From the pocket of Jeric Pavia, maam [sic].
q. And do you know what PO3 Parunggao do with the item?
a. He placed marking on it, maam [sic].
q. In what place did he put the marking?
a. At the police station maam [sic].
q. What markings did he place?
a. It was marked JP representing the initials of accused Jeric Pavia, maam [sic].
q. Where were you when Officer Parunggao placed that marking on the item?
a. I was beside him, maam [sic].
q. Can you describe the plastic sachet?
It is a small transparent plastic sachet which contains white crystalline substance otherwise known as
a.
shabu, maam [sic].
Who was in possession of the plastic sachet from the time PO3 Parunggao took it from the possession
q.
of Jeric Pavia up to the police station?
a. It was P03 Parunggao, maam [sic].
I am showing to you a plastic sachet with white crystalline substance with markings JP, please identify
q.
the same?
a. This is the same item confiscated from Jeric Pavia, maam [sic].
xxxx
Did you come to know what Officer Parunggao do with the plastic sachet confiscated from Juan
q.
Buendia?
a. He brought it to the police station, maam [sic].
q. And what did he do with it?
a. He placed the markings JB, maam [sic].
Who was in possession of the plastic sachet with markings JB from Aplaya [where the pot session took
q.
place] to the police station?
a. It was PO3 Parunggao, maam.
I am showing to you a plastic sachet with white crystalline substance with markings JB, please identify
q.
the same?
a. This is the same item confiscated from Juan Buendia by PO3 Parunggao, maam [sic].[17]

It is likewise important to note that it was PO2 Bautista himself who brought the request [18] for laboratory
examination of the substance taken from appellants from the San Pedro Police Station to the PNP Crime
Laboratory in Calamba City, thereby ensuring that the integrity of the confiscated items are preserved. Thus, the
fact that the apprehending team did not strictly comply with the procedural requirements of Section 21(1), Article
II of R.A. No. 9165 does not necessarily render appellants' arrest illegal or the items seized from them inadmissible
in evidence.
As held by this Court in the case of People v. Llanita:[19]

RA 9165 and its subsequent Implementing Rules and Regulations (IRR) do not require strict compliance as to the
chain of custody rule. x x x. We have emphasized that what is essential is "the preservation of the integrity and the
evidentiary value of the seized items, as the same would be utilized in the determination of the guilt or innocence
of the accused."

Briefly stated, non-compliance with the procedural requirements under RA 9165 and its IRR relative to the
custody, photographing, and drug-testing of the apprehended persons, is not a serious flaw that can render void
the seizures and custody of drugs in a buy-bust operation.

xxxx

x x x. We recognize that the strict compliance with the requirements of Section 21 may not always be possible
under field conditions; the police operates under varied conditions, and cannot at all times attend to all the
niceties of the procedures in the handling of confiscated evidence.

Finally, both the trial court and the CA rejected appellants' defense of denial and frame-up for failure to
substantiate the same.

Indeed, the defenses of denial and frame-up have been invariably viewed by this Court with disfavor for it can
easily be concocted and is a common and standard defense ploy in prosecutions for violations of the Dangerous
Drugs Act. In order to prosper, the defenses of denial and frame-up must be proved with strong and convincing
evidence. In the case before us, appellants failed to present sufficient evidence in support of their claims. Aside
from their self-serving assertions, no plausible proof was presented to bolster their allegations. [20]Consequently, in
the absence of clear and convincing evidence that the police officers were inspired by any improper motive, this
Court will not appreciate the defense of denial or frame-up and instead apply the presumption of regularity in the
performance of official duty by law enforcement agents.[21]

In view of the foregoing, we see no reason to deviate from the well-discussed decision of the CA, its findings and
conclusions having been supported by both law and applicable jurisprudence.

WHEREFORE, the Decision of the Court of Appeals dated 7 February 2012 in CA-G.R. CR-H.C. No. 04020
is AFFIRMED.

SO ORDERED.

FIRST DIVISION

[ G.R. No. 195194, November 25, 2015 ]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. KAMAD AKMAD Y ULIMPAIN @ "MHADS" AND BAINHOR
AKMAD Y ULIMPAIN @ "BHADS," ACCUSED-APPELLANTS.

DECISION

PEREZ, J.:
On appeal is the 19 February 2010 Decision[1] of the Court of Appeals (CA) in CA-G.R. CR-HC No. 03376 which
affirmed the Decision dated 22 May 2008 of the Regional Trial Court (RTC), Malolos City, Branch 21 finding the
accused-appellants Kamad Akmad y Ulimpain (Kamad) and Bainhor Akmad y Ulimpain (Bainhor) guilty of violating
Section 5, Article II of Republic Act (R.A.) No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act
of 2002.

Factual Antecedents

Kamad and Bainhor were charged before RTC, Branch 21, Malolos, Bulacan for violation of Section 5, Article II of
R.A. No. 9165 in an information that reads:

That on or about the 25th day of September, 2003 in the [M]unicipality of Meycauayan, [P]rovince of Bulacan,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, without authority of
law and legal justification, did then and there willfully, unlawfully and feloniously sell, trade, deliver, give away,
dispatch in transit and transport dangerous drug consisting of one (1) heat-sealed transparent plastic bag of
Methylamphetamine Hydrochloride weighing 49.606 grams in conspiracy with each other. [2]

On 11 November 2003, Kamad and Bainhor, assisted by their counsel, pleaded not guilty to the crime charged. Pre-
trial and trial thereafter ensued.

Version of the Prosecution

On 25 September 2003, senior Police Officer 1 Hashim Maung (SPO1 Maung) of the Philippine Drug Enforcement
Agengy (PDEA), Bulacan Provincial Office received a report from a civilian informant regarding the illegal drug
activities of Kamad and Bainhor in the area of Meycauayan, Bulacan. The two were allegedly capable of disposing
large volumes of shabu through consignment basis. SPO1 Maung instructed the civilian informant to set up a drug
deal with the suspects.

At around 2:00 o'clock in the afternoon of the same date, the informant returned and reported that he had already
negotiated for the delivery of 50 grams of shabu worth Fifty Thousand Pesos (P50,000.00). The delivery would
allegedly take place in front of McDonald's restaurant in Barangay Banga, Meycauayan, Bulacan.[3]

A team composed of Police Officer 3 Rolando Navarette (PO3 Navarette), as poseur-buyer, and SPO1 Maung and
PO1 Co, as backup, was immediately formed to conduct a buy-bust operation.[4]

Upon arrival at the locus criminis at around 5:45 o'clock in the afternoon, the informant introduced PO3 Navarette
to Kamad and Bainhor as an interested buyer. Kamad then took a medium-sized plastic sachet containing
suspected shabu from his pocket and gave it to Bainhor, who, in turn, handed it to PO3 Navarette. Upon receipt of
the plastic sachet, PO3 Navarette immediately executed their prearranged signal by scratching the back of his head
with his right hand. SPO1 Maung and PO1 Co immediately rushed in and introduced themselves as PDEA
operatives. The accused were informed of their rights and brought to the police station for disposition and
documentation.[5]

PO3 Navarette testified that he marked the plastic sachet with his initial "RCN." He likewise testified that he
prepared the request for the laboratory examination that was brought by SPO1 Maung to the crime laboratory
together with the specimen, which later on tested positive for shabu.[6]

Version of the Defense

Accused-appellants denied the accusations against them. They maintained that they were merely drinking
softdrinks at the McDonald's fastfood restaurant in Barangay Banga, Meycauayan, Bulacan when three men
suddenly approached them and poked a gun at Kamad. They were dragged out of the restaurant and forced to
board a red car. Then, they were brought to a small house and were ordered to remove their clothings. They Were
bodily searched but the three men did not find anything on them. Thereafter, they were brought to the provincial
jail.

Ruling of the RTC

On 22 May 2008, the trial court promulgated a Decision[7] finding accused-appellants guilty beyond reasonable
doubt of the offense charged and sentenced them to suffer the penalty of life imprisonment and to pay a fine of
Five Hundred Thousand Pesos (P500,000.00). The trial court ruled that the evidence presented by the prosecution
successfully established the elements of illegal sale of a dangerous drug as accused-appellants were caught
in flagrante delicto in a valid buy-bust operation. It noted that the defense of denial and frame-up offered by the
defense cannot overturn the presumption of regularity in the performance of official duties accorded to the
apprehending officers.

The Ruling of the Court of Appeals

On intermediate appellate review, the CA found no reason to disturb the findings of the RTC and upheld its ruling.
The appellate court agreed with the RTC that the testimony of the lone prosecution witness was sufficient to
establish the culpability of accused-appellants. It also held that the apprehending officers complied with the
proper procedure in the custody and disposition of the seized drug and that the identity of the corpus delicti was
properly preserved and established by the prosecution.[8]

Issue

Whether the lower courts gravely erred in finding the accused-appellants guilty of the crime charged
notwithstanding the prosecution's failure to prove their guilt beyond reasonable doubt.[9]

Our Ruling

We deny the appeal.

Accused-appellants allege that PO3 Navarette testified that they were informed by a civilian informant that the
accused-appellants can dispose large volume of shabu through consignment basis, which means that, at first, they
will be given the shabu and on the next delivery, they will give the payment for the shabu earlier delivered.
Accused-appellants maintain that the testimony defeated the prosecution's claim of illegal sale of drugs. They
insist that no sale transaction was consummated between them and PO3 Navarette because one of the essential
elements of a sale, i.e. the price certain in money or its equivalent is absent.[10]

The argument is erroneous. In the prosecution of a case of illegal sale of dangerous drugs, the absence of marked
money does not create a hiatus in the evidence for the prosecution as long as the sale of dangerous drug is
adequately proven and the drug subject of the transaction is presented before the court. [11] Neither law nor
jurisprudence requires the presentation of any money used in the buy-bust operation.[12] What is material is the
proof that the transaction or sale took place, coupled with the presentation in court of the corpus delicti as
evidence.[13] In the instant case, the prosecution was able to establish the consummated transaction between the
poseur-buyer and accused-appellants.
Moreover, we note that accused-appellants were charged with selling, trading, delivering, giving away, dispatching
in transit and transporting dangerous drugs under Section 5, Article II of R.A. No. 9165.[14] The charge was not
limited to the selling of dangerous drugs. The aforesaid provision of law punishes not only the sale but also the
mere act of delivery of prohibited drugs after the offer to buy by the entrapping officer has been accepted by the
seller. In the distribution of prohibited drugs, the payment of any consideration is immaterial. The mere act of
distributing the prohibited drugs to others is in itself a punishable offense. [15]

Accused-appellants also submit that the lower courts failed to consider the procedural flaws committed by the
arresting officers in the seizure and custody of drugs as embodied in Section 21, paragraph 1, Article II, R.A. No.
9165.[16] They allege that the arresting team should have conducted a physical inventory of the item seized and
took photographs thereof in their presence and in the presence of a representative each from the media, the
Department of Justice, and any elected public official who shall further be required to sign copies of the
inventory.[17] They further allege that the prosecution was not able to establish the unbroken chain of custody of
the dangerous drug when it failed to present SPO1 Maung, the one who prepared the request and delivered the
alleged confiscated specimen to the PNP Crime Laboratory Service, Bulacan Provincial Office, Malolos, Bulacan.

We are not persuaded. The procedure to be followed in the custody and handling of the seized dangerous drugs is
outlined in Section 21 (a), Article II of the Implementing Rules and Regulations of R.A. No. 9165, which states:

(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[.] (Emphasis supplied)

The last part of the aforequoted issuance provided the exception to the strict compliance with the requirements of
Section 21 of R.A. No. 9165. Although ideally the prosecution should offer a perfect chain of custody in the
handling of evidence, "substantial compliance with the legal requirements on the handling of the seized item" is
sufficient.[18] This Court has consistently ruled that even if the arresting officers failed to strictly comply with the
requirements under Section 21 of R.A. No. 9165, such procedural lapse is not fatal and will not render the items
seized inadmissible in evidence.[19] What is of utmost importance is the preservation of the integrity and
evidentiary value of the seized items, as the same would be utilized in the determination of the guilt or innocence
of the accused.[20] In other words, to be admissible in evidence, the prosecution must be able to present through
records or testimony, the whereabouts of the dangerous drugs from the time these were seized from the accused
by the. arresting officers; turned-over to the investigating officer; forwarded to the laboratory for determination of
their composition; and up to the time these are offered in evidence. For as long as the chain of custody remains
unbroken, as in this case, even though the procedural requirements provided for in Sec. 21 of R.A. No. 9165 was
not faithfully observed, the guilt of the accused will not be affected. [21]

Here, the prosecution successfully established the unbroken chain of custody over the seized drug. After the arrest
of the accused-appellants and the seizure of the suspected shabu, PO3 Navarette conducted an inventory in the
presence of Princesita Gaspar and Ma. Theresa Lienado, officials of the barangay where the crime was committed.
PO3 Navarette then marked the item with his initials, prepared the Receipt of Property Seized and had it signed by
the barangay officials. These were done in the presence of the accused-appellants who refused to sign on the
receipt. A request for laboratory examination was thereafter prepared and the item was transmitted to the crime
laboratory for examination.[22] The seized item was received by Forensic Chemical Officer Nellson Sta. Maria, who
conducted a chemistry examination of the substance. In his Chemistry Report No. D-727-2003,[23] the forensic
officer stated that the specimen tested positive for methamphetamine hydrochloride or shabu.

It is clear from the foregoing that the substance marked, tested and offered in evidence was the same item seized
from accused-appellants. This position by the prosecution was bolstered by the defense's admission during the
pre-trial conference of the existence, due execution and genuineness of the request for laboratory examination,
the Chemistry Report and specimen submitted.[24]

We have previously ruled that as long as the state can show by record or testimony that the integrity of the
evidence has not been compromised by accounting for the continuous whereabouts of the object evidence at least
between the time it came into the possession of the police officers until it was tested in the laboratory, then the
prosecution can maintain that it was able to prove the guilt of the accused beyond reasonable doubt. [25]

The integrity of the evidence is presumed to have been preserved unless there is a showing of bad faith, ill will, or
proof that the evidence has been tampered with. Acussed-appellants bear the burden of showing that the
evidence was tampered or meddled with in order to overcome the presumption of regularity in the handling of
exhibits by public officers and the presumption that public officers properly discharged their duties.[26] Accused-
appellants in this case failed to present any plausible reason to impute ill motive on the part of the arresting
officers. Thus, the testimony of PO3 Navarette deserves full faith and credit. In fact, accused-appellants did not
even question the credibility of the apprehending officers. Nor did they present any reason why the apprehending
would fabricate a story to arrest them. They simply anchored their appeal on denial and the alleged broken chain
of the custody of the seized drug. We have previously ruled that the defense of denial or frame-up, like alibi, has
been invariably viewed by the courts with disfavor for it can just as easily be concocted and is a common and
standard defense ploy in most prosecution for violation of the Dangerous Drugs Act.[27]

Section 5 of R.A. No. 9165 provides the penalty for the illegal sale of dangerous drugs, viz.:

Sect. 5 Sale, Trading, Administration; Dispensation, Delivery, Distribution and Transportation of Dangerous Drugs
and/or Controlled Precursors and Essential Chemicals. - The penalty of life imprisonment to death and a fine
ranging from Five hundred thousand pesos (P500,000.00) to Ten Million Pesos (PI0,000,000.00) shall be imposed
upon any person, who, unless authorized by law, shall sell, trade administer, dispense, deliver, give away to
another, distribute, dispatch in transit or transport any dangerous drug, including any and all species of opium
poppy regardless of the quantity and purity involved, or shall act as a broker in any of such transactions.

We find the penalty imposed on accused-appellant in conformity with the above-quoted provision of the law.

In fine, there is no reason to modify or set aside the Decision of the RTC, as affirmed by the CA. We thus adopt its
findings of fact and conclusions of law.

WHEREFORE, the Decision of the Court of Appeals in CA-G.R. CR-HC No. 03376 finding the accused Kamad Akmad y
Ulimpain and Bainhor Akmad y Ulimpain guilty beyond reasonable doubt of violating Section 5, Article II of
Republic Act No. 9165, otherwise known as the "Comprehensive Dangerous Drugs Act of 2002," sentencing them
to suffer the penalty of life imprisonment and ordering them to pay a fine of Five Hundred Thousand Pesos
(P500,000.00) is hereby AFFIRMED.

SO ORDERED.

SECOND DIVISION
 [ G.R. No. 111762, July 22, 1999 ]

ROY A. DIZON, PETITIONER, VS. COURT OF APPEALS AND PEOPLE OF THE PHILIPPINES, RESPONDENTS.

DECISION

MENDOZA, J.:

This is a petition for review of the decision of the Court of Appeals[1] affirming the ruling of the Regional Trial Court
of Manila (Branch 49) which found accused-appellant guilty of illegal possession of pillbox in violation of §3 of
Presidential Decree (P.D.) No. 1866.[2]

The Information against accused-appellant alleged:

That on or about May 11, 1990, in the City of Manila, Philippines, the said accused, did then and there willfully and
unlawfully have in his possession and under his custody and control an explosive with the following description, to
wit:

One (1) Pill box bomb wrapped in an aluminum foil with electrical tape and black powder
which he carried outside of his residence not for the purpose of surrendering the same and without first having
secured the necessary license or permit therefor from the proper authorities.
The prosecution evidence shows that at around 7:00 in the evening on May 11, 1990, patrolmen Ernesto Marquez
and Alfredo Opriasa, of the Western Police District followed a group of rallyist, numbering about 20 to 25, that
marched along Recto Avenue then turned left on Nicanor Reyes Street (formerly Morayta Street) and proceeded to
España Street.[3] The group was protesting the coming exploratory talks between the governments of the
Philippines and the United States concerning the extension of the Military Bases Agreement which was due to
expire on September 16, 1991. Upon reaching the intersection of España and A. Maceda Streets, the
demonstrators stopped to stage a noise barrage.

Marquez, who was driving the patrol car, stopped the vehicle about seven meters from the group. Marquez and
Opriasa remained in the car for about ten minutes, observing the rallyists. When some of them started burning
tires in the middle of the street, Opriasa alighted and ran towards the students who scampered when they saw
him. Marquez followed Opriasa shortly after. Opriasa got hold of accused-appellant who was left behind while
trying to light one of the tires on the street. Opriasa frisked accused-appellant and confiscated from him a pillbox.
Following standard procedure, they first took accused-appellant to the Jose B. Reyes Memorial Hospital for
examination before proceeding to the WPD Station 4 on UN Avenue, where accused-appellant was booked and
detained for illegal possession of pillbox.[4]

Opriasa recounted how he was able to seize the pillbox from the accused:[5]

FISCAL CADELIÑA:
And when you were holding this person you apprehended, what happened there?

WITNESS:
One of his hands [was] inside his front pocket and I ordered him not to pull out his hands because it might be
something, sir.

FISCAL CADELIÑA:
When you said one hand, which hand and in what pocket in front?

WITNESS:
Left hand, sir.
FISCAL CADELIÑA:
And in what pocket in front?

WITNESS:
Left pocket also, sir.

FISCAL CADELIÑA:
When you told him not to pull out that thing because you did not know yet what is it, what did this person
you arrested do?

WITNESS:
He was not pulling out his hand yet which was placed inside his pocket. What I did [was] I pulled out his hand
and I saw something being held by him so I grabbed that thing, sir.

FISCAL CADELIÑA:
And what was that thing you took from that person?

WITNESS:
It was wrapped in the gift wrap. It looks like an aluminum foil, sir, and it was sealed or closed.
Pfc. Edilberto Capacete, a bomb specialist detailed in the Explosive Ordinance Disposal Unit of the WPD, testified
that in the evening of May 11, 1990, the sealed object [6] seized by Opriasa from accused-appellant was turned
over to him at the WPD station by Pfc. Calingling, in the presence of patrolmen Marquez and Opriasa, for
examination. The device, measuring 8.5 cm. x 4 cm., was wrapped in a "Sustagen" tin foil and tied with electrical
tape. Inside was a marble rock, two pieces of broken glass, and black powder.[7] He testified that he took a small
amount of the powder, ignited it, and found it positive for explosive. [8] He issued a certification to such effect.[9] To
further confirm his findings, he requested a chemical examination of the black powder by the police forensic
chemist, Marilyn Dequito.

Dequito, for her part, testified that the device was given to her on May 14, 1990, by Pfc. Capacete. She removed
the marble rock and two pieces of broken glass and tested the silvery black powder for presence of explosive
substances by dissolving it in water and mixing the solution with certain chemicals. [10] The liquid product tested
positive for potassium, nitrate, aluminum, and carbon, all composite elements of an explosive. [11] She opined that
the presence of these elements makes the object an explosive so that when thrown on the ground, it will explode
upon impact.[12] She also issued a report stating these findings.[13] She kept the device locked in a cabinet in her
office until it was presented to the trial court on July 18, 1990.

Lilia Lauron, property custodian of the records of the firearms and explosives unit of the Philippine Constabulary,
issued a certificate (Exh. C) stating that based on the availbale records of said office, accused-appellant was not a
licensed or registered holder of firearms and explosives. She later testified in court and identified the certificate
she had issued. She added that their office checked accused-appellant's name both in the personal reference card
in the master list and in the computer, but his name was not in either list. [14]

Accused-appellant denied the allegations against him. He testified that at the time material to this case, he was a
student at the Polytechnic University of the Philippines and a member of the League of Filipino Students, one of
the largest student-based activist groups in the country. On May 11, 1990, he and Rowena Carascal, a friend and
schoolmate, joined about 200 students from other schools in a march from Recto Avenue to España Street to
protest against the coming exploratory talks between the Philippine and the US governments. At about 7:00 in the
evening, the rallyists reached the intersection of A. Maceda and España Streets. Accused-appellant was part of the
first line of demonstrators and stood near the center island at the northwestern side of España Street (the lane
going to Quiapo). Behind him was the intersection of A. Maceda and España Streets. Another group of students
was on the opposite lane. The students were marching towards the Welcome Rotonda, chanting and clapping their
hands as they blocked vehicular traffic in the area.[15]
Accused-appellant claimed that he heard a car coming up behind him, followed by a gunshot. When he turned
around, he saw it was a police car of the WPD. He got nervous (nataranta) thus he was not able to run
immediately. His companions ran towards the direction of Quiapo. He tried to catch up with them, but he was
sideswiped by a jeepney and thus fell on his knees. At that point, a policeman, whom he later came to know was
Pat. Alfredo Opriasa, grabbed him by the armpit, turned him around, poked a gun at his head and said "Huwag
kang pumalag" ("Don't resist"). Accused-appellant said he tried to break from the policeman's hold, but the latter
proved too strong for him. He then heard a second gunshot. Opriasa dragged him towards the mobile car. On the
way, Opriasa allegedly picked up something and said "Putang ina ninyo, may pillbox pa kayo" ("You sons of bitches,
you even have a pillbox"). Accused-appellant claimed he did not see the object held by Opriasa. He was then
pushed inside the patrol car and was told to lie face down. The officer then threw a pair of handcuffs at accused-
appellant and told the latter to handcuff himself, which he did. Opriasa and Marquez took accused-appellant to
the Jose B. Reyes Memorial Hospital where he was examined. They then proceeded to the WPD Station on UN
Avenue where, for the first time, he was shown the pillbox allegedly taken from him. [16]

The defense presented Rowena Carascal to corroborate accused-appellant's testimony. Carascal testified that it
was she who invited accused-appellant to join the protest march as she had been left behind by her companions.
They were together from Recto Avenue to España Street. She did not notice anything bulging on the left front
pocket of accused-appellant's pants.[17] She said that shortly before the group reached the intersection of España
and Maceda Streets, accused-appellant joined the first line of rallyists while she became part of the second line
behind that of accused-appellant's. The latter's group had already crossed the intersection while that of Carascal
remained on the other side.[18]

Carascal said some rallyists placed three tires in the middle of the street, poured gasoline on them, and lit them.
She saw accused-appellant still in the front line, locked in arms with the other students, his back against the
burning tires. Three or four other students who were not part of the lines were also exploding pyrotechnics.[19] All
the while the students were chanting and clapping their hands. [20]

Carascal corroborated accused-appellant's testimony that a police patrol car arrived and shortly after, a shot rang
out. She said somebody pulled her away, and they both ran towards Quiapo. As they scampered, she saw accused-
appellant still locked in arms with other students. She heard a second shot and somebody shouted that someone
had been arrested. She and her companions regrouped at the University of Santo Tomas where she learned that it
was accused-appellant who had been arrested.[21]

On April 19, 1991, the trial court rendered a decision, the dispositive portion of which reads: [22]

WHEREFORE, judgment is hereby rendered finding the Accused ROY DIZON guilty beyond reasonable doubt of the
crime of violation of Section 3 of Presidential Decree No. 1866, and hereby metes on him an indeterminate penalty
of from Seventeen (17) Years, Four (4) Months and One (1) Day of Reclusion Temporal, as Minimum, to Reclusion
Perpetua, as Maximum, with all the accessory penalties of the law. Upon the finality of this Decision of the Court,
the Branch Clerk of Court of this Court is hereby ordered to cause the delivery of the pillbox, Exhibit "G-1" to the
Firearms and Explosives Unit of the Philippine National Police for proper disposition in accordance with law.

SO ORDERED.
On appeal to the Court of Appeals, the trial court's decision was affirmed with modification as to the imposable
penalty. Accused-appellant was sentenced to seventeen (17) years, four (4) months and one (1) day of reclusion
temporal as minimum to nineteen (19) years ofreclusion temporal as maximum.[23] Hence, this petition.

Accused-appellant contends that[24]-

FIRST
THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR WHEN IT CONCLUDED THAT THE MERE EXISTENCE OF
BLACK POWDER IS SUFFICIENT TO JUSTIFY A FINDING THAT AN "INCENDIARY DEVICE," THE POSSESSION OF WHICH
IS PUNISHED BY PRESIDENTIAL DECREE NO. 1866, EXISTS.

SECOND

THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR WHEN IT REFUSED TO INDULGE THE REASONABLE
DOUBT CREATED BY THE ALLEGED PILLBOX'S FAILURE TO EXPLODE, DESPITE THE EXISTENCE OF CONDITIONS
UNDER WHICH AN EXPLOSION COULD REASONABLY HAVE BEEN EXPECTED, IN FAVOR OF ACCUSED-APPELLANT.

THIRD

THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR WHEN IT REFUSED TO INDULGE THE REASONABLE
DOUBT CREATED BY THE PROSECUTION'S FAILURE TO ADEQUATELY ESTABLISHED AND ACCOUNT FOR THE CHAIN
OF CUSTODY OVER THE ALLEGED PILLBOX IN FAVOR OF ACCUSED-APPELLANT.

FOURTH

THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR WHEN IT REFUSED TO INDULGE THE REASONABLE
DOUBT CREATED BY THE CONFLICTING TESTIMONIES OF THE ARRESTING OFFICERS ON MATERIAL POINTS IN
FAVOR OF ACCUSED-APPELLANT.

After reviewing the evidence in the record, we find no reason to reverse the findings of the trial court as affirmed
by the Court of Appeals, although the penalty as fixed by the appellate court should be modified in view of the
amendment to P.D. No. 1866.

First. Accused-appellant assails the findings of fact by the trial court as affirmed by the Court of Appeals, pointing
out alleged inconsistencies and contradictions in the testimonies of patrolmen Opriasa and Marquez. Accused-
appellant cites Pat. Opriasa's testimony that accused-appellant was trying to light a tire at the intersection of
España and A. Maceda Streets when Pat. Opriasa nabbed him, which according to accused-appellant is inconsistent
with the following testimony of Pat. Marquez:[25]

ATTY. OCAYA:
How many tires were there at the intersection?

WITNESS [MARQUEZ]:
Around three (3) tires, sir.

ATTY. OCAYA:
How many were burning at that time?

WITNESS:
All of the three (3), sir.
With respect to Pat. Opriasa's testimony that accused-appellant's left hand was inside the left front pocket of his
pants, it is claimed that this is inconsistent with the following testimony of Pat. Marquez: [26]

ATTY. OCAYA:
Was the accused struggling to get himself free from the hold of Pat. Opriasa?

WITNESS:
 Yes, sir.

ATTY. OCAYA:
He struggled, the Accused struggled by flailing his arms from the left to the right?

WITNESS:
Yes, sir.
But as the appellate court correctly ruled:[27]

As to the number of tires burning, this Court notes that the accused-appellant had indulged himself in selective
citation choosing to omit statements that could well explain what he claims to be an inconsistency. While it is true
that Patrolman Marquez averred that there were around (repeat, around) three tires burning, the fact is that
Patrolman Opriasa, when he testified that there was a tire set on fire by said group, did not say that there were no
other tire/s that were already on fire at that time or that there were no other tire/s that were then being set on
fire.

This Court made reference to selective citation. This is evidenced, for instance, by the fact that the accused-
appellant conveniently omitted the following testimony of Patrolman Opriasa:

....

ATTY. OCAYA:
Were the tires actually on fire?

WITNESS [OPRIASA]:
The other two (2) tires were already on fire, sir.

ATTY. OCAYA:
[The] [o]ther tires, you said were not yet on fire?

WITNESS:
Yes, sir.

(pp. 76-78, t.s.n., September 5, 1990 - underscoring supplied).

As to the struggle of accused-appellant Dizon, the appellate court stated:[28]

The Mobile Car was about 7 meters from where Dizon was apprehended (p. 52, t.s.n., September 5, 1990). It was
at that time that Dizon was being dragged to the mobile car seven meters away that he could have been flailing his
arms as noticed by Marquez.
Accused-appellant points out other alleged inconsistencies regarding the drawing by the policemen of their service
firearms and whether the blinkers and siren of their patrol car were on. However, these relate to minor details
which have no bearing on the principal question involved. As stated in People v. Manahan:[29]

[Minor] contradictions and inconsistencies are normal infirmities that result from individual differences in the
appreciation of events, time, place and circumstances. The rule is, as it were, that inconsistencies on minor details
do not destroy the probative value of the testimonies of the witnesses because, generally, they may be due to
innocent mistake and not to deliberate falsehood.
In the absence of a clear showing that the trial court's conclusions were arbitrarily reached or that it overlooked
certain facts of substance or value which, if considered, might alter the result of the findings of the trial court on
the credibility of witnesses and their testimonies are to be accorded great respect on appeal. The reason for this is
that the trial court had opportunity to hear the witnesses and observe their deportment and manner of
testifying.[30] In this case, the trial court stated:[31]
The Court belabored to monitor and observe the conduct and demeanor of the witnesses of the prosecution, more
particularly Pat. Alfredo Opriasa and Pat. [Ernesto] Marquez, and the Court is fully convinced that they testified
spontaneously, in a candid and straightforward manner, their testimonies bereft of artificialities, affectations and
vacillations which are the hallmarks of perjured and/or rehearsed witnesses.
Furthermore, the policemen have in their favor the presumption that they have regularly performed their duty. In
the absence of showing of any improper motive in testifying against accused-appellant, this presumption must be
indulged in this case.[32] For the same reason, accused-appellant's claim that he is the victim of a frame-up cannot
be given much credence. As the trial court stated:[33]

The [a]ccused, when he testified before the court, categorically admitted having been accosted and held by Pat.
Opriasa and then brought to the mobile car nearby. However, [he] denied having been in possession of the pillbox,
. . . thereby branding the charge . . . against him as a fabrication and a concoction brewed by the policemen to
pillory him [in] a dastardly frame-up. However, such a defense is basically if not inherently weak, it being facile to
concoct and difficult to disprove. The [a]ccused, for the court to accord credence to such defense, . . . must adduce
clear and convincing evidence to prove it. (citing People v. Francia, 154 SCRA 694 (1987) and People v. Marcos, G.R.
No. 83325, May 8, 1990).
It is noteworthy that accused-appellant testified:[34]

COURT:
. . . [D]id you sustain injuries before you were brought to the [Jose Reyes] hospital?

WITNESS [DIZON]:
Yes, your Honor.

COURT:
Where?

WITNESS:
Under my armpit, sir.

COURT:
Why?

WITNESS:
Because of the grip of the policeman, your Honor.

COURT:
In this the only injury you sustained?

WITNESS:
Yes, your Honor.
Accused-appellant was clearly exaggerating. It is hard to see how he could have been injured if he was simply
grabbed by the armpit. Moreover, this is inconsistent with his claim that he was sideswiped by a jeepney.

Second. Accused-appellant also contends that even if patrolmen Opriasa and Marquez actually did seize the pillbox
from him, the prosecution allegedly failed to show that it is an explosive. He claims that the device must be shown
to be "capable of producing destructive effect on contiguous objects or causing injury or death to any person," as
provided under Sec. 3 of P.D. No. 1866, as amended.[35] He adds that instead of making a piecemeal analysis of the
device's components such as the black powder, he suggests that the object, as a whole, must be tested whether it
is an "incendiary device."[36]

Accused-appellant does not say, however, how this is to be carried out since, by deduction, the only logical choice
is to make the object explode. As the appellate court pointed out in its decision, "accused-appellant must have
been less than serious when he suggests that the device . . . should have been thrown to the ground. Such would
have been a sure way of losing the very evidence one is testing."[37] Indeed, the law merely states that the device
be "capable of producing destructive effect." The positive results yielded by the test conducted by Capacete and
Dequito, whose findings likewise enjoy the presumption of regularity, clearly establish this.

Still, it is pointed out that the device failed to explode during the July 16, 1990 killer earthquake notwithstanding
that Dequito's cabinet which contained the device fell sideways on a table. However, as Marilyn Dequito
explained:[38]

[T]he pillbox was not really totally sealed. What I placed in my locker [is an] explosive that w[as] not totally sealed.
It [was] opened already. In fact, moisture has already been absorb[ed] by that mixture of substances and I don't
thin[k] it will explode and there will be no explosion anymore. But if the pillbox is totally sealed, when you throw it,
pressure will be built inside so when you throw it the pressure will be released. That is the time that there will be
an explosion when the pressure will be released.
Moreover, as discussed above, proof of actual explosion is not necessary to establish that the device is an
explosive under P.D. No. 1866.

Third. Anent accused-appellant's contention that the prosecution failed to establish the chain of custody of the
pillbox thus casting doubt on the identity of the device presented during the trial, the Court is satisfied that the
pillbox presented during the trial is the one seized from accused-appellant on May 11, 1990. The prosecution had
shown that after Patrolmen Opriasa and Marquez brought accused-appellant to the WPD station at United Nations
Ave. in the evening of May 11, 1990, they gave the pillbox to Pfc. Calingling. Opriasa said the device was "wrapped
in an aluminum foil and tied with yellow material."[39] Calingling, in the presence of Marquez and Opriasa, turned
over the device to Capacete. That same night, Capacete conducted a preliminary test of the black powder taken
from the device and found the powder positive for explosive. On May 14, 1990, he personally delivered the device
to Marilyn Dequito, the forensic chemist of the WPD, for further testing. After subjecting the black powder to
chemical analysis, Dequito also found it positive for explosive. The device remained in her custody until it was
presented to the trial court on July 18, 1990.

That Capacete delivered to Dequito, on May 14, 1990, the identical pillbox he received from Calingling, Opriasa
and Marquez is borne by their description of the device in their respective reports. Capacete described the object
as:[40]

one pillbox measuring 8 cm. x 5 cm. consisting of one (1) piece of marble rock, two (2) pieces of broken glass
wrap[ped] [in] Sustagen aluminum foil with electrical tape and black powder.
Dequito's report likewise described the device as:[41]

[measured] about 8.5 cm. x 5 cm. wrapped in a Sustagen foil with electrical tape . . . . Unwrapping [of] the above
mentioned exhibit reveal[ed] the presence of silvery gray substance, one (1) piece [of] rock and two pieces of
broken glass.
In conclusion, we hold that both the trial court and the Court of Appelas correctly found accused-appellant guilty
of illegal possession of pillbox as defined and punished in §3 of P.D. No. 1866. However, the penalty imposed on
accused-appellant must be modified in view of Republic Act No. 8294, effective on July 6, 1997, [42] which reduced
the penalty for the offense to "prision mayor in its maximum period to reclusion temporal and a fine of not less
than Fifty Thousand Pesos (P50,000.00)." Art. 22 of the Revised Penal Code provides that "penal laws shall have
retroactive effect in so far as they favor the persons guilty of a felony who is not a habitual criminal."

WHEREFORE, the decision of the Court of Appeals is AFFIRMED with the modification that accused-appellant is
SENTENCED to four (4) years, ten (10) months, and twenty-one (21) days of prision correcional, as minimum, to
thirteen (13) years, four (4) months, and one (1) day of reclusion temporal, as maximum, and ORDERED to pay a
fine of P50,000.00.
 EN BANC

[ G.R. No. 153559, June 08, 2004 ]

PEOPLE OF THE PHILIPPINES, APPELLEE, VS. ANTONIO COMADRE, GEORGE COMADRE AND DANILO LOZANO,
APPELLANTS.

DECISION

PER CURIAM:

Appellants Antonio Comadre, George Comadre and Danilo Lozano were charged with Murder with Multiple
Frustrated Murder in an information which reads:

That on or about the 6th of August 1995, at Brgy. San Pedro, Lupao, Nueva Ecija, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping
one another, with intent to kill and by means of treachery and evident premeditation, availing of nighttime to
afford impunity, and with the use of an explosive, did there and then willfully, unlawfully and feloniously lob a
hand grenade that landed and eventually exploded at the roof of the house of Jaime Agbanlog trajecting deadly
shrapnels that hit and killed one ROBERT AGBANLOG, per the death certificate, and causing Jerry Bullanday, Jimmy
Wabe, Lorenzo Eugenio, Rey Camat, Emelita Agbanlog and Elena Agbanlog to suffer shrapnel wounds on their
bodies, per the medical certificates; thus, to the latter victims, the accused commenced all the acts of execution
that would have produced the crime of Multiple Murder as consequences thereof but nevertheless did not
produce them by reason of the timely and able medical and surgical interventions of physicians, to the damage
and prejudice of the deceased's heirs and the other victims.

CONTRARY TO LAW.[1]
On arraignment, appellants pleaded "not guilty".[2] Trial on the merits then ensued.

As culled from the records, at around 7:00 in the evening of August 6, 1995, Robert Agbanlog, Jimmy Wabe, Gerry
Bullanday,[3] Rey Camat and Lorenzo Eugenio were having a drinking spree on the terrace of the house of Robert's
father, Barangay Councilman Jaime Agbanlog, situated in Barangay San Pedro, Lupao, Nueva Ecija. Jaime Agbanlog
was seated on the banister of the terrace listening to the conversation of the companions of his son. [4]

As the drinking session went on, Robert and the others noticed appellants Antonio Comadre, George Comadre and
Danilo Lozano walking. The three stopped in front of the house. While his companions looked on, Antonio
suddenly lobbed an object which fell on the roof of the terrace. Appellants immediately fled by scaling the fence of
a nearby school.[5]

The object, which turned out to be a hand grenade, exploded ripping a hole in the roof of the house. Robert
Agbanlog, Jimmy Wabe, Gerry Bullanday, Rey Camat and Lorenzo Eugenio were hit by shrapnel and slumped
unconscious on the floor.[6] They were all rushed to the San Jose General Hospital in Lupao, Nueva Ecija for medical
treatment. However, Robert Agbanlog died before reaching the hospital. [7]

Dr. Tirso de los Santos, the medico-legal officer who conducted the autopsy on the cadaver of Robert Agbanlog,
certified that the wounds sustained by the victim were consistent with the injuries inflicted by a grenade explosion
and that the direct cause of death was hypovolemic shock due to hand grenade explosion. [8] The surviving victims,
Jimmy Wabe, Rey Camat, Jaime Agbanlog and Gerry Bullanday sustained shrapnel injuries.[9]

SPO3 John Barraceros of the Lupao Municipal Police Station, who investigated the scene of the crime, recovered
metallic fragments at the terrace of the Agbanlog house. These fragments were forwarded to the Explosive
Ordinance Disposal Division in Camp Crame, Quezon City, where SPO2 Jesus Q. Mamaril, a specialist in said
division, identified them as shrapnel of an MK2 hand grenade.[10]

Denying the charges against him, appellant Antonio Comadre claimed that on the night of August 6, 1995, he was
with his wife and children watching television in the house of his father, Patricio, and his brother, Rogelio. He
denied any participation in the incident and claimed that he was surprised when three policemen from the Lupao
Municipal Police Station went to his house the following morning of August 7, 1995 and asked him to go with them
to the police station, where he has been detained since.[11]

Appellant George Comadre, for his part, testified that he is the brother of Antonio Comadre and the brother-in-law
of Danilo Lozano. He also denied any involvement in the grenade-throwing incident, claiming that he was at home
when it happened. He stated that he is a friend of Rey Camat and Jimmy Wabe, and that he had no animosity
towards them whatsoever. Appellant also claimed to be in good terms with the Agbanlogs so he has no reason to
cause them any grief.[12]

Appellant Danilo Lozano similarly denied any complicity in the crime. He declared that he was at home with his ten
year-old son on the night of August 6, 1995. He added that he did not see Antonio and George Comadre that night
and has not seen them for quite sometime, either before or after the incident. Like the two other appellants,
Lozano denied having any misunderstanding with Jaime Agbanlog, Robert Agbanlog and Jimmy Wabe. [13]

Antonio's father, Patricio, and his wife, Lolita, corroborated his claim that he was at home watching television with
them during the night in question.[14] Josie Comadre, George's wife, testified that her husband could not have been
among those who threw a hand grenade at the house of the Agbanlogs because on the evening of August 6, 1995,
they were resting inside their house after working all day in the farm.[15]

After trial, the court a quo gave credence to the prosecution's evidence and convicted appellants of the complex
crime of Murder with Multiple Attempted Murder,[16] the dispositive portion of which states:

WHEREFORE, in view of the foregoing, judgment is hereby rendered:

1. Finding accused Antonio Comadre, George Comadre and Danilo Lozano GUILTY beyond reasonable doubt
of the complex crime of Murder with Multiple Attempted Murder and sentencing them to suffer the
imposable penalty of death;
2. Ordering Antonio Comadre, George Comadre and Danilo Lozano to pay jointly and severally the heirs of
Robert Agbanlog P50,000.00 as indemnification for his death, P35,000.00 as compensatory damages and
P20,000.00 as moral damages;
3. Ordering accused Antonio Comadre, George Comadre and Danilo Lozano to pay jointly and severally
Jimmy Wabe, Rey Camat, Gerry Bullanday and Jaime Agbanlog P30,000.00 as indemnity for their
attempted murder.

Costs against the accused.

SO ORDERED.
Hence, this automatic review pursuant to Article 47 of the Revised Penal Code, as amended. Appellants contend
that the trial court erred: (1) when it did not correctly and judiciously interpret and appreciate the evidence and
thus, the miscarriage of justice was obviously omnipresent; (2) when it imposed on the accused-appellants the
supreme penalty of death despite the evident lack of the quantum of evidence to convict them of the crime
charged beyond reasonable doubt; and (3) when it did not apply the law and jurisprudence for the acquittal of the
accused-appellants of the crime charged.[17]

Appellants point to the inconsistencies in the sworn statements of Jimmy Wabe, Rey Camat, Lorenzo Eugenio and
Gerry Bullanday in identifying the perpetrators. Wabe, Camat and Eugenio initially executed a Sinumpaang
Salaysay on August 7, 1995 at the hospital wherein they did not categorically state who the culprit was but merely
named Antonio Comadre as a suspect. Gerry Bullanday declared that he suspected Antonio Comadre as one of the
culprits because he saw the latter's ten year-old son bring something in the nearby store before the explosion
occurred.

On August 27, 1995, or twenty days later, they went to the police station to give a more detailed account of the
incident, this time identifying Antonio Comadre as the perpetrator together with George Comadre and Danilo
Lozano.

A closer scrutiny of the records shows that no contradiction actually exists, as all sworn statements pointed to the
same perpetrators, namely, Antonio Comadre, George Comadre and Danilo Lozano. Moreover, it appears that the
first statement was executed a day after the incident, when Jimmy Wabe, Rey Camat and Lorenzo Eugenio were
still in the hospital for the injuries they sustained. Coherence could not thus be expected in view of their condition.
It is therefore not surprising for the witnesses to come up with a more exhaustive account of the incident after
they have regained their equanimity. The lapse of twenty days between the two statements is immaterial because
said period even helped them recall some facts which they may have initially overlooked.

Witnesses cannot be expected to remember all the details of the harrowing event which unfolded before their
eyes. Minor discrepancies might be found in their testimony, but they do not damage the essential integrity of the
evidence in its material whole, nor should they reflect adversely on the witness' credibility as they erase suspicion
that the same was perjured.[18] Honest inconsistencies on minor and trivial matters serve to strengthen rather than
destroy the credibility of a witness to a crime, especially so when, as in the instant case, the crime is shocking to
the conscience and numbing to the senses.[19]

Moreover, it was not shown that witnesses Jimmy Wabe, Rey Camat, Lorenzo Eugenio and Gerry Bullanday had
any motive to testify falsely against appellants. Absent evidence showing any reason or motive for prosecution
witnesses to perjure, the logical conclusion is that no such improper motive exists, and their testimony is thus
worthy of full faith and credit.

The trial court is likewise correct in disregarding appellants' defense of alibi and denial. For the defense of alibi to
prosper, the accused must prove not only that he was at some other place at the time of the commission of the
crime but also that it was physically impossible for him to be at the locus delicti or within its immediate vicinity.[20]

Apart from testifying with respect to the distance of their houses from that of Jaime Agbanlog's residence,
appellants were unable to give any explanation and neither were they able to show that it was physically
impossible for them to be at the scene of the crime. Hence, the positive identification of the appellants by
eyewitnesses Jimmy Wabe, Jaime Agbanlog, Rey Camat and Gerry Bullanday prevails over their defense of alibi and
denial.[21]

It was established that prior to the grenade explosion, Rey Camat, Jaime Agbanlog, Jimmy Wabe and Gerry
Bullanday were able to identify the culprits, namely, appellants Antonio Comadre, George Comadre and Danilo
Lozano because there was a lamppost in front of the house and the moon was bright. [22]

Appellants' argument that Judge Bayani V. Vargas, the Presiding Judge of the Regional Trial Court of San Jose City,
Branch 38 erred in rendering the decision because he was not the judge who heard and tried the case is not well
taken.

It is not unusual for a judge who did not try a case to decide it on the basis of the record for the trial judge might
have died, resigned, retired, transferred, and so forth.[23] As far back as the case of Co Tao v. Court of Appeals[24] we
have held: "The fact that the judge who heard the evidence is not the one who rendered the judgment and that for
that reason the latter did not have the opportunity to observe the demeanor of the witnesses during the trial but
merely relied on the records of the case does not render the judgment erroneous." This rule had been followed for
quite a long time, and there is no reason to go against the principle now. [25]

However, the trial court's finding of conspiracy will have to be reassessed. The undisputed facts show that when
Antonio Comadre was in the act of throwing the hand grenade, George Comadre and Danilo Lozano merely looked
on without uttering a single word of encouragement or performed any act to assist him. The trial court held that
the mere presence of George Comadre and Danilo Lozano provided encouragement and a sense of security to
Antonio Comadre, thus proving the existence of conspiracy.

We disagree.

Similar to the physical act constituting the crime itself, the elements of conspiracy must be proven beyond
reasonable doubt. Settled is the rule that to establish conspiracy, evidence of actual cooperation rather than mere
cognizance or approval of an illegal act is required.[26]

A conspiracy must be established by positive and conclusive evidence. It must be shown to exist as clearly and
convincingly as the commission of the crime itself. Mere presence of a person at the scene of the crime does not
make him a conspirator for conspiracy transcends companionship.[27]

The evidence shows that George Comadre and Danilo Lozano did not have any participation in the commission of
the crime and must therefore be set free. Their mere presence at the scene of the crime as well as their close
relationship with Antonio are insufficient to establish conspiracy considering that they performed no positive act in
furtherance of the crime.

Neither was it proven that their act of running away with Antonio was an act of giving moral assistance to his
criminal act. The ratiocination of the trial court that "their presence provided encouragement and sense of security
to Antonio," is devoid of any factual basis. Such finding is not supported by the evidence on record and cannot
therefore be a valid basis of a finding of conspiracy.

Time and again we have been guided by the principle that it would be better to set free ten men who might be
probably guilty of the crime charged than to convict one innocent man for a crime he did not commit. [28] There
being no conspiracy, only Antonio Comadre must answer for the crime.

Coming now to Antonio's liability, we find that the trial court correctly ruled that treachery attended the
commission of the crime. For treachery to be appreciated two conditions must concur: (1) the means, method and
form of execution employed gave the person attacked no opportunity to defend himself or retaliate; and (2) such
means, methods and form of execution was deliberately and consciously adopted by the accused. Its essence lies
in the adoption of ways to minimize or neutralize any resistance, which may be put up by the offended party.

Appellant lobbed a grenade which fell on the roof of the terrace where the unsuspecting victims were having a
drinking spree. The suddenness of the attack coupled with the instantaneous combustion and the tremendous
impact of the explosion did not afford the victims sufficient time to scamper for safety, much less defend
themselves; thus insuring the execution of the crime without risk of reprisal or resistance on their part. Treachery
therefore attended the commission of the crime.

It is significant to note that aside from treachery, the information also alleges the "use of an explosive" [29] as an
aggravating circumstance. Since both attendant circumstances can qualify the killing to murder under Article 248
of the Revised Penal Code,[30] we should determine which of the two circumstances will qualify the killing in this
case.

When the killing is perpetrated with treachery and by means of explosives, the latter shall be considered as a
qualifying circumstance. Not only does jurisprudence[31] support this view but also, since the use of explosives is
the principal mode of attack, reason dictates that this attendant circumstance should qualify the offense instead of
treachery which will then be relegated merely as a generic aggravating circumstance.[32]
Incidentally, with the enactment on June 6, 1997 of Republic Act No. 8294[33] which also considers the use of
explosives as an aggravating circumstance, there is a need to make the necessary clarification insofar as the legal
implications of the said amendatory law vis-à-vis the qualifying circumstance of "by means of explosion" under
Article 248 of the Revised Penal Code are concerned. Corollary thereto is the issue of which law should be applied
in the instant case.

R.A. No. 8294 was a reaction to the onerous and anachronistic penalties imposed under the old illegal possession
of firearms law, P.D. 1866, which prevailed during the tumultuous years of the Marcos dictatorship. The
amendatory law was enacted, not to decriminalize illegal possession of firearms and explosives, but to lower their
penalties in order to rationalize them into more acceptable and realistic levels. [34]

This legislative intent is conspicuously reflected in the reduction of the corresponding penalties for illegal
possession of firearms, or ammunitions and other related crimes under the amendatory law. Under Section 2 of
the said law, the penalties for unlawful possession of explosives are also lowered. Specifically, when the illegally
possessed explosives are used to commit any of the crimes under the Revised Penal Code, which result in the
death of a person, the penalty is no longer death, unlike in P.D. No. 1866, but it shall be considered only as an
aggravating circumstance. Section 3 of P.D. No. 1866 as amended by Section 2 of R.A. 8294 now reads:

Section 2. Section 3 of Presidential Decree No. 1866, as amended, is hereby further amended to read as follows:

Section 3. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Explosives. The penalty of prision
mayor in its maximum period to reclusion temporal and a fine of not less than Fifty thousand pesos (P50,000.00)
shall be imposed upon any person who shall unlawfully manufacture, assemble, deal in, acquire, dispose or
possess hand grenade(s), rifle grenade(s), and other explosives, including but not limited to "pillbox," "molotov
cocktail bombs," "fire bombs," or other incendiary devices capable of producing destructive effect on contiguous
objects or causing injury or death to any person.

When a person commits any of the crimes defined in the Revised Penal Code or special law with the use of the
aforementioned explosives, detonation agents or incendiary devises, which results in the death of any person or
persons, the use of such explosives, detonation agents or incendiary devices shall be considered as an
aggravating circumstance. (shall be punished with the penalty of death is DELETED.)
x x x x x x x x x.

With the removal of death as a penalty and the insertion of the term "xxx as an aggravating circumstance," the
unmistakable import is to downgrade the penalty for illegal possession of explosives and consider its use merely as
an aggravating circumstance.

Clearly, Congress intended R.A. No. 8294 to reduce the penalty for illegal possession of firearms and explosives.
Also, Congress clearly intended RA No. 8294 to consider as aggravating circumstance, instead of a separate
offense, illegal possession of firearms and explosives when such possession is used to commit other crimes under
the Revised Penal Code.

It must be made clear, however, that RA No. 8294 did not amend the definition of murder under Article 248, but
merely made the use of explosives an aggravating circumstance when resorted to in committing "any of the crimes
defined in the Revised Penal Code." The legislative purpose is to do away with the use of explosives as a separate
crime and to make such use merely an aggravating circumstance in the commission of any crime already defined in
the Revised Penal Code. Thus, RA No. 8294 merely added the use of unlicensed explosives as one of the
aggravating circumstances specified in Article 14 of the Revised Penal Code. Like the aggravating circumstance of
"explosion" in paragraph 12, "evident premeditation" in paragraph 13, or "treachery" in paragraph 16 of Article 14,
the new aggravating circumstance added by RA No. 8294 does not change the definition of murder in Article 248.

Nonetheless, even if favorable to the appellant, R.A. No. 8294 still cannot be made applicable in this case. Before
the use of unlawfully possessed explosives can be properly appreciated as an aggravating circumstance, it must be
adequately established that the possession was illegal or unlawful, i.e., the accused is without the corresponding
authority or permit to possess. This follows the same requisites in the prosecution of crimes involving illegal
possession of firearm[35] which is a kindred or related offense under P.D. 1866, as amended. This proof does not
obtain in the present case. Not only was it not alleged in the information, but no evidence was adduced by the
prosecution to show that the possession by appellant of the explosive was unlawful.

It is worthy to note that the above requirement of illegality is borne out by the provisions of the law itself, in
conjunction with the pertinent tenets of legal hermeneutics.

A reading of the title[36] of R.A. No. 8294 will show that the qualifier "illegal/unlawful ...possession" is followed by
"of firearms, ammunition, or explosives or instruments..." Although the term ammunition is separated from
"explosives" by the disjunctive word "or", it does not mean that "explosives" are no longer included in the items
which can be illegally/unlawfully possessed. In this context, the disjunctive word "or" is not used to separate but to
signify a succession or to conjoin the enumerated items together. [37] Moreover, Section 2 of R.A. 8294,[38] subtitled:
"Section 3. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Explosives", clearly refers to
the unlawful manufacture, sale, or possession of explosives.

What the law emphasizes is the act's lack of authority. Thus, when the second paragraph of Section 3, P.D. No.
1866, as amended by RA No. 8294 speaks of "the use of the aforementioned explosives, etc." as an aggravating
circumstance in the commission of crimes, it refers to those explosives, etc. "unlawfully" manufactured,
assembled, dealt in, acquired, disposed or possessed mentioned in the first paragraph of the same section. What is
per se aggravating is the use of unlawfully "manufactured … or possessed" explosives. The mere use of explosives
is not.

The information in this case does not allege that appellant Antonio Comadre had unlawfully possessed or that he
had no authority to possess the grenade that he used in the killing and attempted killings. Even if it were alleged,
its presence was not proven by the prosecution beyond reasonable doubt. Rule 110 of the 2000 Revised Rules on
Criminal Procedure requires the averment of aggravating circumstances for their application. [39]

The inapplicability of R.A. 8294 having been made manifest, the crime committed is Murder committed "by means
of explosion" in accordance with Article 248 (3) of the Revised Penal Code. The same, having been alleged in the
Information, may be properly considered as appellant was sufficiently informed of the nature of the accusation
against him.[40]

The trial court found appellant guilty of the complex crime of murder with multiple attempted murder under
Article 48 of the Revised Penal Code, which provides:

Art. 48. Penalty for complex crimes. When a single act constitutes two or more grave or less grave felonies, or
when an offense is a necessary means of committing the other, the penalty for the most serious crime shall be
imposed, the same to be applied in its maximum period.
The underlying philosophy of complex crimes in the Revised Penal Code, which follows the pro reo principle, is
intended to favor the accused by imposing a single penalty irrespective of the crimes committed. The rationale
being, that the accused who commits two crimes with single criminal impulse demonstrates lesser perversity than
when the crimes are committed by different acts and several criminal resolutions.

The single act by appellant of detonating a hand grenade may quantitatively constitute a cluster of several
separate and distinct offenses, yet these component criminal offenses should be considered only as a single crime
in law on which a single penalty is imposed because the offender was impelled by a "single criminal impulse" which
shows his lesser degree of perversity.[41]

Under the aforecited article, when a single act constitutes two or more grave or less grave felonies the penalty for
the most serious crime shall be imposed, the same to be applied in its maximum period irrespective of the
presence of modifying circumstances, including the generic aggravating circumstance of treachery in this
case.[42] Applying the aforesaid provision of law, the maximum penalty for the most serious crime (murder) is
death. The trial court, therefore, correctly imposed the death penalty.

Three justices of the Court, however, continue to maintain the unconstitutionality of R.A. 7659 insofar as it
prescribes the death penalty. Nevertheless, they submit to the ruling of the majority to the effect that the law is
constitutional and that the death penalty can be lawfully imposed in the case at bar.

Finally, the trial court awarded to the parents of the victim Robert Agbanlog civil indemnity in the amount of
P50,000.00, P35,000.00 as compensatory damages and P20,000.00 as moral damages. Pursuant to existing
jurisprudence[43] the award of civil indemnity is proper. However, the actual damages awarded to the heirs of
Robert Agbanlog should be modified, considering that the prosecution was able to substantiate only the amount of
P18,000.00 as funeral expenses.[44]

The award of moral damages is appropriate there being evidence to show emotional suffering on the part of the
heirs of the deceased, but the same must be increased to P50,000.00 in accordance with prevailing judicial
policy.[45]

With respect to the surviving victims Jaime Agbanlog, Jimmy Wabe, Rey Camat and Gerry Bullanday, the trial court
awarded P30,000.00 each for the injuries they sustained. We find this award inappropriate because they were not
able to present a single receipt to substantiate their claims. Nonetheless, since it appears that they are entitled to
actual damages although the amount thereof cannot be determined, they should be awarded temperate damages
of P25,000.00 each.[46]

WHEREFORE, in view of all the foregoing, the appealed decision of the Regional Trial Court of San Jose City, Branch
39 in Criminal Case No. L-16(95) is AFFIRMED insofar as appellant Antonio Comadre is convicted of the complex
crime of Murder with Multiple Attempted Murder and sentenced to suffer the penalty of death. He is ordered to
pay the heirs of the victim the amount of P50,000.00 as civil indemnity, P50,000.00 as moral damages and
P18,000.00 as actual damages and likewise ordered to pay the surviving victims, Jaime Agbanlog, Jimmy Wabe, Rey
Camat and Gerry Bullanday, P25,000.00 each as temperate damages for the injuries they sustained. Appellants
Gregorio Comadre and Danilo Lozano are ACQUITTED for lack of evidence to establish conspiracy, and they are
hereby ordered immediately RELEASED from confinement unless they are lawfully held in custody for another
cause. Costs de oficio.

In accordance with Section 25 of Republic Act 7659 amending Article 83 of the Revised Penal Code, upon finality of
this Decision, let the records of this case be forwarded to the Office of the President for possible exercise of
pardoning power.

SO ORDERED.

SECOND DIVISION

[ G.R. No. 84857, January 16, 1998 ]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. RODOLFO DELA ROSA Y AVILES, ANTONIO DELA ROSA Y
AVILES, AND RODOLFO QUIMSON Y NAVA (AT LARGE), ACCUSED-APPELLANTS.
 DECISION

PUNO, J.:

Rodolfo dela Rosa y Aviles appeals the decision of the Regional Trial Court, First Judicial Region, Branch 38,
Lingayen, Pangasinan, convicting him of illegal possession of firearms and explosives and imposing the penalty
of reclusion perpetua.[1]

On January 27, 1987, an information for illegal possession of firearms and explosives was filed against RODOLFO
DELA ROSA y AVILES, ANTONIO DELA ROSA y AVILES, CRESENCIO REYES y DELA CRUZ and RODOLFO QUIMSON y
NAVA, to wit:

"That on or about the 9th of December 1986, in sitio (sic) Kadampat, Barangay Bolo, municipality (sic) of Labrador,
province (sic) of Pangasinan, New Republic of the Philippines and within the jurisdiction of this Honorable Court,
the abovementioned accused, conspiring, confederating and helping one another, did then and there wilfully (sic),
unlawfully and feloniously have in their possession, custody and control three (3) homemade gauge 12 shotguns
and fourteen (14) pieces of dynamite explosives, without first securing the necessary permit/license to possess the
same.

"Contrary to Presidential Decree No. 1866."[2]

All accused pleaded not guilty when arraigned on February 3, 1987. On March 12, 1987, the four accused withdrew
their plea of not guilty and substituted it with a plea of guilt. After ascertaining that the plea of guilt was not made
improvidently, the lower court imposed upon them the corresponding penalty. [3] However, on March 19, 1987,
the four (4) accused filed a motion withdrawing their plea of guilt. [4] The lower court granted the motion in a
resolution dated March 25, 1987.[5] Thereafter, trial proceeded. However, accused Cresencio Reyes changed his
mind again and pleaded guilty to a lesser offense punishable under the last paragraph of Section 1 of Presidential
Decree No. 1866. The court accepted the plea and sentenced him accordingly. He was utilized as a witness by the
prosecution. The trial proceeded against the three remaining accused.

The prosecution established that in the morning of December 9, 1986, Rodolfo dela Rosa, Antonio dela Rosa,
Cresencio Reyes and Rodolfo Quimson, surrendered to Kagawad Valeriano Rigor of Sitio Kadampat, Bolo,
Labrador, Pangasinan claiming they want to lead a new life. They informed him that Benjamin Nano, alias
Kumander Tamang, a member of the New People's Army (NPA), was shot by one of them. The four had with them
a short shotgun (Exhibit A) and a bag containing several sticks of dynamite (Exhibit C to C-7).[6] Kagawad Rigor
offered them breakfast and afterwards went to the police station to report the presence of four (4) surrenderees
in his house. At the police station, Patrolman Gasline Fernandez recorded the report in the police blotter. Cpl.
Crispin Cancino, the station commander, brought along several policemen and proceeded to the house of Kagawad
Rigor. When the group arrived, only Kagawad Rigor and Cpl. Cancino entered the house. The other policemen
stayed outside to secure the area. Inside the house, Kagawad Rigor introduced the surrenderees to Cpl. Cancino
and showed him the short shotgun (Exhibit A) and the bag (Exhibit C to C-7) containing several sticks of dynamite.
Then, all accused, except Rodolfo Quimson, who was left behind to guide the police in recovering the body of
Kumander Tamang, were brought to the Philippine Constabulary (PC) Headquarters in Lingayen. In Lingayen, they
proceeded at the municipal building and called on Mayor Calixto Pancho. The surrenderees had their picture taken
with Mayor Pancho and Kagawad Rigor. Afterwards, they were brought to the police headquarters, where their
statements were taken by Cpl. Arsenio Paragas and Cpl. Cipriano Castillo.[7] Meanwhile, the charred body of
Benjamin Nano was recovered by the police in Sitio Tebel Patar.[8]

The following day, Cresencio Reyes informed the police that there were firearms left buried in Sitio Tebel Patar.
Reyes pointed to the hiding place which was covered by banana leaves. When the banana leaves were removed,
the police unearthed two (2) long barreled shotguns (Exhibits B and D). [9]

On the other hand, the three accused contend they were recruited by Kumander Tamang on different dates.
Accused Rodolfo dela Rosa testified that he first saw Kumander Tamang on October 28, 1986 at a relative's wake.
Kumander Tamang asked him whether he owned a piece of land. He said he did not, for he was only a sawali
maker. Kumander Tamang then convinced him to join the New People's Army (NPA). He told Kumander Tamang he
would think it over. On November 1, 1986, Kumander Tamang went to his house and reiterated his offer to him.
Cresencio Reyes was with Kumander Tamang at that time. Reyes was carrying a bag (Exhibit C) while Kumander
Tamang had a shotgun (Exhibit A). On November 10, 1986, Kumander Tamang went to his house and succeeded in
persuading him to join the NPA. Kumander Tamang brought him at a hideout in the mountains of Sitio Tebel Patar,
Labrador, Pangasinan.

On the evening of November 14, 1986, Rodolfo dela Rosa, Kumander Tamang and Cresencio Reyes, descended the
mountains and proceeded to the house of Antonio dela Rosa, who was Rodolfo's cousin. At that time, Kumander
Tamang was carrying a shotgun (Exhibit A) while Reyes was carrying a bag (Exhibit C). When they arrived at said
place, Kumander Tamang and Reyes entered the house and stayed inside for ten (10) minutes. When the two came
out, dela Rosa was with them. All of them headed for the mountains afterwards. On November 20, 1986, Rodolfo
dela Rosa, Kumander Tamang Cresencio Reyes and Antonio dela Rosa went to the house of Rodolfo
Quimson. Again, only Kumander Tamang and Reyes entered Quimson's house. They stayed inside for 15 minutes.
When the two came out, Quimson was with them. Afterwards, they returned to their hideout in the mountains. [10]

On December 8, 1986, at 10:00 o'clock in the morning, Kumander Tamang called them to a meeting. Kumander
Tamang took the bag (Exhibit C) which Reyes always carries and opened it. The bag yielded several sticks of
dynamite. Kumander Tamang told them that at five o'clock in the afternoon they would go down Sitio Kadampat
and assassinate Kagawad Rigor.[11] He then instructed them on how to use the explosives. After the meeting, they
returned to their hut and rested. At two o'clock in the afternoon, they heard a gunshot from the hut of Kumander
Tamang. They rushed outside and saw Reyes holding Kumander Tamang's shotgun. He announced that Kumander
Tamang was dead. He told them it would be better to surrender themselves to the authorities. He ordered them to
gather the shotgun and the sticks of dynamite while he set on fire Kumander Tamang's hut. At five o'clock in the
afternoon, they descended the mountains and headed towards Sitio Kadampat. At 7:00 a.m., the following day,
they reached the house of Kagawad Rigor. They saw the Kagawad sitting by himself on a bench outside his house.
Only Reyes approached the Kagawad, so as not to frighten him. The three others waited by the roadside. After five
(5) minutes, Reyes signalled the three to approach the house. Kagawad Rigor let them inside the house and offered
them breakfast. Reyes placed the shotgun and the bag on top of the dining table. Kagawad Rigor then left the
house and went to the police station.[12] He returned with several policemen. At first, the policemen pointed their
guns at the accused but Kagawad Rigor told them there was no need for they were surrendering themselves to the
authorities. Kagawad Rigor then showed the policemen the shotgun and the bag containing the sticks of dynamite.
The policemen took all the surrenderees to the Municipal Hall, except Rodolfo Quimson, who was left behind, to
lead the police to Kumander Tamang's body. At the Municipal Hall, Mayor Calixto Pancho greeted and
congratulated them for coming back to the fold of law. They had their picture taken with Mayor Pancho and
Kagawad Rigor. Afterwards, they were brought to the police headquarters. When an investigator started to
question them, they asked for a lawyer to assist them but the investigator said they would not need one for they
were surrenderees and would soon be freed. Hence, they gave their subscribed statements to the police. After
their statements were taken, the police took them back to the police station in Labrador, where they were
detained. On January 5, 1987, they were transferred to the provincial jail in Lingayen. They denied ever seeing the
two (2) long firearms (Exhibits C and D) which were recovered in Sitio Tebel Patar. They saw said firearms for the
first time when the prosecution presented them as exhibits during the trial. [13]

When trial concluded, the lower court convicted the three (3) accused. Antonio dela Rosa did not appeal [14] while
Rodolfo Quimson escaped[15] from the National Bilibid Prisons (NBP) where he was detained after the lower court
convicted him. Only Rodolfo dela Rosa appealed contending that:

THE TRIAL COURT ERRED IN FINDING THE ACCUSED-APPELLANT RODOLFO DELA ROSA GUILTY BEYOND
REASONABLE DOUBT OF THE CRIME OF ILLEGAL POSSESSION OF FIREARMS AND EXPLOSIVES, DEFINED AND
PENALIZED UNDER THE PROVISIONS OF PRESIDENTIAL DECREE NO. 1866.
We find merit in the appeal.
It is undisputed that accused-appellant Rodolfo dela Rosa and his companions were the ones who surrendered the
subject firearm (Exhibit A) and explosives (Exhibit C to C-7) to Kagawad Rigor. However, Rodolfo dela Rosa denies
that he was in possession of said ammunitions in the manner punishable by law. According to him, his real
intention was merely to turn over the ammunitions, which were owned by Kumander Tamang, to the authorities.
The trial court perceived otherwise. It declared that since Rodolfo dela Rosa joined the New People's Army (NPA),
there is reason to conclude that he provided himself with arms such as Exhibits A, B, C to C-7 and D.[16] And since
mere possession is sufficient to convict a person for crimes which are malum prohibitum like illegal possession of
firearms, appellant dela Rosa must be convicted. It is of no moment that he surrendered the ammunitions to the
authorities.

We fail to see how appellant dela Rosa could be convicted of illegal possession of firearms based on the above
reasoning. Section 1 of Presidential Decree No. 1866 punishes any person who shall "x x x unlawfully
manufacture, deal in, acquire, dispose or possess any firearms, part of firearm, ammunition, or machinery, tool
or instrument used or intended to be used in the manufacture of any firearm or ammunition."(Underscoring
supplied) [17]

Broken down into its salient elements, illegal possession of firearms is committed when the holder thereof:

(i) possesses a firearm; and

(ii) lacks the authority or license to possess it.[18]

In People v. de Gracia,[19] we clarified the meaning of possession for the purpose of convicting a person under PD
1866, thus:

"But, is the mere fact of physical or constructive possession sufficient to convict a person for unlawful possession
of firearms or must there be an intent to possess to constitute a violation of the law? This query assumes
significance for illegal possession of firearms is a malum prohibitum, punished by a special law, in which case good
faith and absence of criminal intent are not valid defenses.

"When a crime is punished by a special law, as a rule, intent to commit the crime is not necessary, it is sufficient
that the offender has the intent to perpetrate the act prohibited by the special law. Intent to commit the crime
and intent to perpetrate the act must be distinguished. A person may not have consciously intended to commit a
crime but he intended to commit an act, and that act is by the very nature of things, the crime itself. In the first
(intent to commit the crime), there must be criminal intent; in the second (intent to perpetrate the act) it is
enough that the prohibited act is done freely and consciously.

In the present case, a distinction should be made between criminal intent and intent to possess. While mere
possession without criminal intent, is sufficient to convict a person for illegal possession of a firearm, it must still
be shown that there was animus possidendi or an intent to possess on the part of the accused. Such intent to
possess is, however, without regard to any other criminal or felonious intent which the accused may have
harbored in possessing the firearm. Criminal intent here refers to the intention of the accused to commit an
offense with the use of an unlicensed firearm. This is not important in convicting a person under Presidential
Decree No. 1866. Hence, in order that one may be found guilty of a violation of the decree, it is sufficient that the
accused had no authority or license to possess a firearm, and that he intended to possess the same, even if such
possession was made in good faith and without criminal intent."
In the early case of People v. Estoista,[20] we held that a temporary, incidental, casual, or harmless possession of
firearms is not punishable. We stated therein that:

"The terms "control" and "dominion" themselves are relative terms not susceptible of exact definition, and
opinions on the degree and character of control or dominion sufficient to constitute a violation vary. The rule laid
down in the United States courts - rule which we here adopt - is that temporary, incidental, casual or harmless
possession or control of a firearm is not a violation of a statute prohibiting the possessing or carrying of this kind of
weapon. A typical example of such possession is where "a person picks up a weapon or hands it to another to
examine or hold for a moment."
Also, in People v. Remereta,[21] where the question posed was whether an accused who stole a firearm could
simultaneously be prosecuted for theft and illegal possession of firearms, we held that transient possession is not
sufficient to convict one under the latter crime, thus:

"While in stealing a firearm the accused must necessarily come into possession thereof, the crime of illegal
possession of firearms is not committed by mere transient possession of the weapon. x x x Thus, stealing a firearm
with intent not to use but to render the owner defenseless, may suffice for purposes of establishing a case of theft,
but would not justify a charge for illegal possession of firearm, since intent to hold and eventually use the weapon
would be lacking."
Hence, the kind of possession punishable under PD No. 1866 is one where the accused possessed a firearm either
physically or constructively with animus possidendi or intention to possess the same.[22] It is not enough that the
firearm was found in the person of the accused who held the same temporarily and casually or for the purpose of
surrendering the same. Admittedly, animus possidendi is a state of mind. As such, what goes on into the mind of
an accused, as his real intent, could be determined solely based on his prior and coetaneous acts and the
surrounding circumstances explaining how the subject firearm came to his possession. [23]

Thus, in People v. Leo Lian,[24] we rejected the argument of the accused that the charge against him should be
dismissed because there was no animus possidendi on his part. In said case, the accused contended that he was
on his way to the municipal hall to surrender the firearm when he met some of his friends. He then forgot about
the firearm, until the police officer unceremoniously seized the same from him, affording him no chance to
surrender it himself.

In rejecting accused-appellant's claim, Justice Regalado wrote that:

"x x x, the Court finds it hard to believe that appellant still had to hide the firearm in his waist before setting out to
surrender it to the authorities when he could have taken the gun to the town hall in the same bag in which he
found it, in which case it would have been safer and would have avoided detection. In fine, the indispensable
elements of possession without the necessary authority or license and the corresponding attendance of animus
possidendi have both been convincingly established by the prosecution to warrant appellant's conviction x x x."
That animus possidendi is determinable from the prior and simultaneous acts of the accused is further exemplified
by People v. Lubo.[25] In this case, while accused-appellant pleaded lack of animus possidendi, his conduct belied
the same. Accused-appellant Lubo was found to have secured a "temporary license" for the subject firearm. Under
such circumstance, we held that accused-appellant intended to possess the subject firearm beyond reasonable
doubt.

Coming now to the case before us, it is undisputed that the police officers never really arrested Rodolfo dela Rosa,
for the truth of the matter was that there was no need for such arrest. Dela Rosa and his companions had
surrendered the ammunitions to Kagawad Rigor even before the police arrived. In fact, the police learned of the
surrender because Kagawad Rigor reported it to the police station in Labrador. This is in contrast to People v. Leo
Lian, where appellant Lian merely feigned intention to surrender the firearm which the police found in his
possession. In the case at bar, appellant dela Rosa's intention to surrender the ammunitions was very clear from
the beginning and he was able to execute the same.

Corollarily, the Office of the Solicitor General's contention that dela Rosa was in constructive possession of the
ammunitions is irrelevant for possession -whether physical or constructive- without animus possidendi is not
punishable. Dela Rosa's possession was harmless, temporary and only incidental for the purpose of surrendering
the ammunitions to the authorities. Consequently, the prosecution failed to establish the first element of animus
possidendi.

Similarly, the records are bereft of sufficient proof that Rodolfo dela Rosa possessed the ammunitions without
authority to do so. Except for the preliminary examination of Pfc. Cipriano P. Castillo conducted by Municipal
Circuit Trial Judge Benjamin N. Abella,[26] the prosecution offered no other evidence during the trial which showed
lack of license. In the preliminary examination, the only relevant question asked by the judge was:

"JUDGE ABELLA

"Q: Did you or the Stn. Commander ask or verify whether any or all of the above-named suspects have any
license to possess the above-mentioned firearms and explosives?

"A: Yes, sir. But they stated that they have no license to possess any of the firearms and explosives which were
recovered from their possession, control and custody."
The Office of the Solicitor General offers the extrajudicial statement of accused Rodolfo dela Rosa [27] that
Kumander Tamang supplied him with explosives and dynamite in furtherance of subversive activities. [28] According
to the Solicitors, the extrajudicial statement is sufficient to prove that the firearms were illegally possessed. The
presumption is erroneous. Aside from the fact that dela Rosa repudiated the extrajudicial statement because it
was uncounselled,[29] the same did not contain any admission that he had no license to possess the firearm. And,
even if it had contained an admission that he had no license, it still would not have sufficed.

In People v. Solayao,[30] the prosecution relied only on the testimonial evidence that accused-appellant admitted
before the police officer who accosted him that he did not have any authority or license to carry the subject
firearm when he was asked if he had one. In acquitting the accused-appellant, we stressed that the prosecution
has the burden of proving beyond reasonable doubt the lack of license which is a negative averment. [31] The
burden is in consonance with the evidentiary rule that "when a negative is averred in a pleading, or a plaintiff's
case depends upon the establishment of a negative, and the means of proving the fact are equally within the
control of each party, then the burden of proof is upon the party averring the negative."[32] More importantly, the
burden placed on the shoulders of the prosecution to prove beyond reasonable doubt the lack of license is
premised on the constitutional presumption of innocence of the accused. [33] Thus, in People v. Solayao, this Court
suggested that the prosecution could have, at the very least, presented a certification from the Firearms and
Explosives Unit that the accused did not have the license to the gun. But, an extrajudicial admission of the accused,
solely, will not suffice.

The Office of the Solicitor General contends that for accused-appellant to join the New People's Army and stay in
the mountains without arming themselves is highly improbable. Thus, there is reason to believe that they illegally
possessed the ammunitions to further their subversive activities even prior to surrendering them to the
authorities. We reiterate that mere suspicion will not prove the prosecution's case in court. In a prosecution under
Presidential Decree No. 1866, it is incumbent on the Government to prove both elements of the crime: (1) that the
accused possessed the firearm and (2) that he had not first obtained a license or permit from the appropriate
authorities.[34]

As always, mere speculations and probabilities cannot substitute for proof required to establish the guilt of an
accused beyond reasonable doubt. The rule is the same whether the offenses are punishable under the Revised
Penal Code which are mala in se or in crimes which are malum prohibitum by virtue of special law.[35] We find that
such quantum of proof was not adequately presented in this case.

IN VIEW WHEREOF, accused-appellant Rodolfo dela Rosa is acquitted in Criminal Case No. L-3616. His immediate
release from the National Bilibid Prisons (NBP) is ordered, except if charged and detained for other offenses.

SO ORDERED.

SECOND DIVISION
 [ G.R. No. 188708, July 31, 2013 ]

PEOPLE OF THE PHILIPPINES, APPELLEE, VS. ALAMADA MACABANDO, APPELLANT.

DECISION

BRION, J.:

This is an appeal filed by appellant Alamada Macabando assailing the February 24, 2009 decision [1] of the Court of
Appeals (CA) in CA-G.R. CR HC No. 00208-MIN. The CA decision affirmed in toto the August 26, 2002 judgment[2] of
the Regional Trial Court (RTC), Branch 25, Cagayan de Oro City, finding the appellant guilty beyond reasonable
doubt of destructive arson, and sentencing him to suffer the penalty of reclusion perpetua.

THE CASE

The prosecution's evidence showed that at around 4:00 p.m. on December 21, 2001, the appellant broke bottles
on the road while holding a G.I. pipe, and shouted that he wanted to get even ("manabla ko").[3] Afterwards, he
uttered that he would burn his house.[4]

At 6:35 p.m. of the same day, Cornelio Feliciano heard his neighbors shout that there was a fire. When Cornelio
went out of his house to verify, he saw smoke coming from the appellant's house. He got a pail of water, and
poured its contents into the fire.[5] Eric Quilantang, a neighbor whose house was just 10 meters from that of the
appellant, ran to the barangay headquarters to get a fire extinguisher. When Eric approached the burning house,
the appellant, who was carrying a traveling bag and a gun, told him not to interfere; the appellant then fired three
(3) shots in the air.[6] The appellant also told the people around that whoever would put out the fire would be
killed.[7]

Upon hearing the gunshots, Cornelio hurriedly went home to save his nephews and nieces. [8] Eric also returned to
his house to save his belongings.[9]

Fire Officer (FO) II Victor Naive and FOI Reynaldo Maliao conducted a spot investigation of the incident, and
concluded, among others, that the fire started in the appellant's house; and that it had been
intentional.[10] Barangay Chairman Modesto Ligtas stated that the fire gutted many houses in his barangay, and
that he assisted the City Social Welfare and Development Department personnel in assessing the damage. [11]

The defense, on the other hand, presented a different version of the events.

The appellant declared on the witness stand that he lived in the two-storey house in Barangay 35, Limketkai Drive,
which was owned by his sister, Madji Muslima Edemal.[12] He admitted that he felt angry at around 2:00 p.m. on
December 21, 2001 because one of his radio cassettes for sale had been stolen.[13] The appellant claimed that he
went to sleep after looking for his missing radio cassette, and that the fire had already started when he woke up.
He denied making a threat to burn his house, and maintained that he did not own a gun. He added that the
gunshots heard by his neighbors came from the explosion of firecrackers that he intended to use during the New
Year celebration.[14]

Lomantong Panandigan, the appellant's cousin, stated, among others, that he did not see the appellant carry a
revolver or fire a shot on December 21, 2001.[15] Dimas Kasubidan, the appellant's brother-in-law, stated that he
and the appellant lived in the same house, and that the latter was asleep in his room at the ground floor before
the fire broke out.[16]

The prosecution charged the appellant with the crime of destructive arson under Article 320 of the Revised Penal
Code (RPC), as amended, before the RTC.[17] The appellant pleaded not guilty to the charge on arraignment. [18] In
its judgment dated August 26, 2002, the RTC found the appellant guilty beyond reasonable doubt of the crime
charged, and sentenced him to suffer the penalty of reclusion perpetua.

On appeal, the CA affirmed the RTC judgment in toto. It gave weight to the RTC's factual findings since these
findings were based on unrebutted testimonial and documentary evidence. The CA held that the totality of the
presented circumstantial evidence led to the conclusion that the appellant was guilty of the crime charged.

THE COURT'S RULING

We deny the appeal, but modify the crime committed by the appellant and the penalty imposed on him.

Sufficiency of Prosecution Evidence

We point out at the outset that no one saw the appellant set fire to his house in Barangay 35, Limketkai Drive,
Cagayan de Oro City. The trial and appellate courts thus resorted to circumstantial evidence since there was no
direct evidence to prove the appellant's culpability to the crime charged.

It is settled that in the absence of direct evidence, circumstantial evidence may be sufficient to sustain a conviction
provided that: "(a) there is more than one circumstance; (b) the facts from which the inferences are derived have
been proven; and (c) the combination of all the circumstances results in a moral certainty that the accused, to the
exclusion of all others, is the one who has committed the crime. Thus, to justify a conviction based on
circumstantial evidence, the combination of circumstances must be interwoven in such a way as to leave no
reasonable doubt as to the guilt of the accused."[19]

In the present case, the following circumstances constitute an unbroken chain that leads to an unavoidable
conclusion that the appellant, to the exclusion of others, set fire to his house: first, the appellant, while holding an
iron lead pipe, acted violently and broke bottles near his house at around 4:00 p.m. of December 21, 2001; second,
while he was still in a fit of rage, the appellant stated that he would get even, and then threatened to burn his own
house; third, Judith Quilantang saw a fire in the appellant's room approximately two hours after the appellant
returned to his house; fourth, the appellant prevented Cornelio, Eric, and several other people from putting out
the fire in his house; fifth, the appellant fired shots in the air, and then threatened to kill anyone who would try to
put out the fire in his house; sixth, the appellant carried a traveling bag during the fire; and finally, the
investigation conducted by the fire marshals of the Bureau of Fire Protection revealed that the fire started in the
appellant's house, and that it had been intentional.

The combination of these circumstances, indeed, leads to no other conclusion than that the appellant set fire to
his house. We find it unnatural and highly unusual for the appellant to prevent his neighbors from putting out the
fire in his house, and threaten to kill them if they did, if he had nothing to do with the crime. The first impulse of an
individual whose house is on fire is to save his loved ones and/or belongings; it is contrary to human nature, reason
and natural order of things for a person to thwart and prevent any effort to put out the fire in his burning property.
By carrying (and firing) a gun during the fire, the appellant showed his determination to repel any efforts to quell
the fire. Important to note, too, is the fact that the appellant carried a traveling bag during the fire which, to our
mind, showed deliberate planning and preparedness on his part to flee the raging fire; it likewise contradicted his
statement that he was asleep inside his house when the fire broke out, and that the fire was already big when he
woke up. Clearly, the appellant's indifferent attitude to his burning house and his hostility towards the people who
tried to put out the fire, coupled with his preparedness to flee his burning house, belied his claim of innocence.
Notably, the appellant failed to impute any improper motive against the prosecution witnesses to falsely testify
against him; in fact, he admitted that he had no misunderstanding with them prior to the incident.

The Crime Committed

The CA convicted the appellant of destructive arson under Article 320 of the RPC, as amended, which reads:

Article 320. Destructive Arson. - The penalty of reclusion perpetua to death shall be imposed upon any person who
shall burn:

1. One (1) or more buildings or edifices, consequent to one single act of burning, or as a result of
simultaneous burnings, committed on several or different occasions.

2. Any building of public or private ownership, devoted to the public in general or where people usually
gather or congregate for a definite purpose such as, but not limited to, official governmental function or
business, private transaction, commerce, trade, workshop, meetings and conferences, or merely
incidental to a definite purpose such as but not limited to hotels, motels, transient dwellings, public
conveyances or stops or terminals, regardless of whether the offender had knowledge that there are
persons in said building or edifice at the time it is set on fire and regardless also of whether the building is
actually inhabited or not.

3. Any train or locomotive, ship or vessel, airship or airplane, devoted to transportation or conveyance, or
for public use, entertainment or leisure.

4. Any building, factory, warehouse installation and any appurtenances thereto, which are devoted to the
service of public utilities.

5. Any building the burning of which is for the purpose of concealing or destroying evidence of another
violation of law, or for the purpose of concealing bankruptcy or defrauding creditors or to collect from
insurance.

xxxx

The penalty of reclusion perpetua to death shall also be imposed upon any person who shall burn:

1. Any arsenal, shipyard, storehouse or military powder or fireworks factory, ordinance, storehouse, archives
or general museum of the Government.
2. In an inhabited place, any storehouse or factory of inflammable or explosive materials.

In sum, "Article 320 contemplates the malicious burning of structures, both public and private, hotels, buildings,
edifices, trains, vessels, aircraft, factories and other military, government or commercial establishments by any
person or group of persons."[20]

Presidential Decree (P.D.) No. 1613,[21] on the other hand, currently governs simple arson. Section 3 of this law
provides:

Section 3. Other Cases of Arson. The penalty of Reclusion Temporal to Reclusion Perpetua shall be imposed if the
property burned is any of the following:

1. Any building used as offices of the government or any of its agencies;

 2. Any inhabited house or dwelling;
3. Any industrial establishment, shipyard, oil well or mine shaft, platform or tunnel;
4. Any plantation, farm, pastureland, growing crop, grain field, orchard, bamboo grove or forest;
5. Any rice mill, sugar mill, cane mill or mill central; and
6. Any railway or bus station, airport, wharf or warehouse. [italics and emphasis ours]

P.D. No. 1613 contemplates the malicious burning of public and private structures, regardless of size, not included
in Article 320 of the RPC, as amended by Republic Act No. 7659.[22] This law punishes simple arson with a lesser
penalty because the acts that constitute it have a lesser degree of perversity and viciousness. Simple arson
contemplates crimes with less significant social, economic, political, and national security implications than
destructive arson.[23]

The elements of simple arson under Section 3(2) of P.D. No. 1613 are: (a) there is intentional burning; and (b) what
is intentionally burned is an inhabited house or dwelling. Both these elements have been proven in the present
case. The Information alleged that the appellant set fire to his own house, and that the fire spread to
other inhabited houses. These allegations were established during trial through the testimonies of the prosecution
witnesses which the trial and appellate courts found credible and convincing, and through the report of the Bureau
of Fire Protection which stated that damaged houses were residential, and that the fire had been intentional.
Moreover, the certification from the City Social Welfare and Development Department likewise indicated that the
burned houses were used as dwellings. The appellant likewise testified that his burnt two-story house was used as
a residence. That the appellant's act affected many families will not convert the crime to destructive arson, since
the appellant's act does not appear to be heinous or represents a greater degree of perversity and viciousness
when compared to those acts punished under Article 320 of the RPC. The established evidence only showed that
the appellant intended to burn his own house, but the conflagration spread to the neighboring houses.

In this regard, our ruling in Buebos v. People[24] is particularly instructive, thus:

The nature of Destructive Arson is distinguished from Simple Arson by the degree of perversity or viciousness of
the criminal offender. The acts committed under Art. 320 of The Revised Penal Code constituting Destructive Arson
are characterized as heinous crimes "for being grievous, odious and hateful offenses and which, by reason of their
inherent or manifest wickedness, viciousness, atrocity and perversity are repugnant and outrageous to the
common standards and norms of decency and morality in a just, civilized and ordered society." On the other hand,
acts committed under PD 1613 constituting Simple Arson are crimes with a lesser degree of perversity and
viciousness that the law punishes with a lesser penalty. In other words, Simple Arson contemplates crimes with
less significant social, economic, political and national security implications than Destructive Arson.

The Proper Penalty

Under Section 3, paragraph 2, of P.D. No. 1613, the imposable penalty for simple arson is reclusion temporal,
which has a range of twelve (12) years and one (1) day, to reclusion perpetua. Applying the Indeterminate
Sentence Law, the penalty imposable should be an indeterminate penalty whose minimum term should be within
the range of the penalty next lower in degree, which is prision mayor, or six (6) years and one (1) day to twelve (12)
years, and whose maximum should be the medium period of reclusion temporal to reclusion perpetua, or sixteen
(16) years and one (1) day to twenty (20) years, taking into account the absence of any aggravating or mitigating
circumstances that attended the commission of the crime. Taking these rules into account, we therefore impose
on the appellant the indeterminate penalty of ten (10) years and one (1) day of prision mayor, as minimum, to
sixteen (16) years and one (1) day of reclusion temporal, as maximum.

As regards the award of damages, we sustain the lower courts' findings that the records do not adequately reflect
any concrete basis for the award of actual damages to the offended parties. To seek recovery of actual damages, it
is necessary to prove the actual amount of loss with a reasonable degree of certainty, premised upon competent
proof and on the best evidence obtainable.[25]

WHEREFORE, the assailed February 24, 2009 decision of the Court of Appeals in CA-G.R. CR HC No. 00208-MIN
is AFFIRMED with the following MODIFICATIONS:

appellant Alamada Macabando is found guilty beyond reasonable doubt of simple arson under Section 3(2)
(1)
of Presidential Decree No. 1613; and
he is sentenced to suffer the indeterminate penalty of ten (10) years and one (1) day of prision mayor, as
(2)
minimum, to sixteen (16) years and one (1) day of reclusion temporal, as maximum.

SO ORDERED.

FIRST DIVISION

[ G.R. No. 182061, March 15, 2010 ]

PEOPLE OF THE PHILIPPINES, APPELLEE, VS. FERDINAND T. BALUNTONG, APPELLANT.

DECISION

CARPIO MORALES, J.:

Ferdinand T. Baluntong (appellant) appeals from the August 13, 2007 Decision [1] of the Court of Appeals to which
the Court had earlier referred the present case for intermediate review following People v. Mateo.[2]

In its challenged Decision, the appellate court affirmed appellant's conviction by the Regional Trial Court of Roxas,
Oriental Mindoro, Branch 43, of Double Murder with Frustrated Murder, following his indictment for such offense
in an Information reading:

That on or about the 31st day of July 1998, at about 10:30 in the evening at Barangay Danggay, Municipality of
Roxas, Province of Oriental Mindoro, Philippines and within the jurisdiction of this Honorable Court, the above-
named accused, did, then and there, with malice aforethought and with deliberate intent to kill, set on fire, the
house of Celerina Solangon, causing the complete destruction of the said house and the death of Celerina
Solangon and Alvin Savarez, and inflicting serious physical injuries on Josua (sic) Savarez, thereby performing all
the acts of execution which would produce the crime of murder as a consequance (sic) but which, nevertheless do
not produce it by reason of causes independent of the will of the perpetrator.[3] x x x x (underscoring supplied)
Gathered from the records of the case is the following version of the prosecution:

At around 10:30 p.m. of July 31, 1998, while then 12-year old Jovelyn Santos (Jovelyn) was sleeping in the house of
her grandmother Celerina Solangon (Celerina) at Barangay Dangay, Roxas, Oriental Mindoro, she was awakened by
heat emanating from the walls of the house. She thus roused her cousin Dorecyll and together they went out of
the house.

Jovelyn saw appellant putting dry hay (dayami) around the house near the terrace where the fire started, but
appellant ran away when he saw her and Dorecyll.

Appellant's neighbor, Felicitas Sarzona (Felicitas), also saw appellant near Celerina's house after it caught fire,
following which, appellant fled on seeing Jovelyn and Dorecyll stepping out of the house, as other neighbors
repaired to the scene to help contain the flames. Felicitas also saw Celerina, who was at a neighbor's house before
the fire started, enter the burning house and resurface with her grandsons Alvin and Joshua.

Celerina and Alvin sustained third degree burns which led to their death. Joshua sustained second degree burns.

Upon the other hand, appellant, denying the charge, invoked alibi, claiming that he, on his mother Rosalinda's
request, went to Caloocan City on July 15, 1998 (16 days before the incident) and stayed there until February 1999.
Rosalinda corroborated appellant's alibi.

By Decision of February 28, 2003, the trial court found appellant guilty as charged, disposing as follows:

WHEREFORE, judgment is hereby rendered as follows:

(a) The court finds accused Ferdinand Baluntong GUILTY beyond reasonable doubt of the complex crime of Double
Murder with Frustrated Murder punishable under Article 248 of the Revised Penal Code as amended by Republic
Act 7659 in relation to Article 48 of the Revised Penal Code and is hereby sentenced to suffer the supreme penalty
of DEATH to be executed in accordance with the existing law;

xxxx

(c) Accused Ferdinand Baluntong is also ordered to pay the heirs of Celerina Suba Solangon the sum of P50,000.00
as compensatory damages and the heirs of Elvin [sic] Savariz the following: (I) the sum of P50,000.00 as
compensatory damages (II) the sum of P16,500.00 as actual damages; and (III) the sum of P50,000.00 as moral
damages.

SO ORDERED.[4] (emphasis in the original; italics and underscoring supplied)

In affirming the trial court's conviction of appellant, the appellate court brushed aside appellant's claim that the
prosecution failed to prove his guilt beyond reasonable doubt. The appellate court, however, modified the trial
court's decision by reducing the penalty to reclusion perpetua in light of the passage of Republic Act No.
9346,[5] and by additionally awarding exemplary damages to the heirs of the victims (Celerina and Alvin),
and temperate damages to Joshua representing his "hospitalization and recuperation." Thus the appellate court
disposed:

WHEREFORE, premises considered, the February 28, 2003 Decision of the Regional Trial Court of Roxas, Oriental
Mindoro, Branch 43, is MODIFIED as follows:

1. Accused-appellant FERDINAND BALUNTONG y TALAGA is found GUILTY beyond reasonable doubt of the
complex crime of Double Murder with Frustrated Murder and is hereby sentenced to suffer the penalty
of reclusion perpetua.

2. Accused-appellant is further required to pay the heirs of the victims the amount of P25,000.00
as exemplary damages and the amount of P25,000.00 as temperate damages for the hospitalization and
recuperation of Joshua Savariz.

3. In all other respects, the February 28, 2003 Decision of the regional trial court is
hereby AFFIRMED.[6] (italics and emphasis in the original; underscoring supplied)

In his Brief, appellant raises doubt on prosecution witness Felicitas' claim that she saw appellant fleeing away from
the burning house, it being then 10:30 p.m. and, therefore, dark. He raises doubt too on Jovelyn's claim that she
saw appellant, given her failure to ask him to stop putting dried hay around the house if indeed her claim were
true.

After combing through the records of the case, the Court finds that the trial court, as well as the appellate court,
did not err in finding that appellant was the malefactor.

There should be no doubt on prosecution witnesses Felicitas' and Jovelyn's positive identification of their
neighbor-herein appellant as the person they saw during the burning of the house, given, among other things, the
illumination generated by the fire. Consider the following testimonies of Felicitas and Jovelyn:

FELICITAS:

Q: Which portion of the house was on fire when you saw Balentong (sic) for the first time?

A: The fire was at the rear portion going up, sir.

Q: How far was Balentong (sic) from that burning portion of the house?

A: He was just infront (sic) of the house, sir.

Q: How far from the burning portion of the house?

A: About two (2) meters away, sir.

Q: The two (2) meters from the front portion or two (2) meters from the burning portion?

A: About two (2) meters, sir.

Q: From the burning portion?

A: Yes, sir.[7] (underscoring supplied)

JOVELYN:

Q: How big was the fire when according to you, you saw the back of this Ferdinand Balontong (sic)?

A: It is already considerable size, Your Honor.

Q: What effect has this fire in the illumination in that vicinity, regarding visibility of that vicinity?

A: The surrounding was illuminated by that fire, Your Honor.[8] (underscoring supplied)
Appellant's alibi must thus fail.

In determining the offense committed by appellant, People v. Malngan[9] teaches:

[I]n cases where both burning and death occur, in order to determine what crime/crimes was/were perpetrated -
whether arson, murder or arson and homicide/murder, it is de rigueur to ascertain the main objective of the
malefactor: (a) if the main objective is the burning of the building or edifice, but death results by reason or on the
occasion of arson, the crime is simply arson, and the resulting homicide is absorbed; (b) if, on the other hand,
the main objective is to kill a particular person who may be in a building or edifice, when fire is resorted to as the
means to accomplish such goal the crime committed is murder only; lastly, (c) if the objective is, likewise, to kill a
particular person, and in fact the offender has already done so, but fire is resorted to as a means to cover up the
killing, then there are two separate and distinct crimes committed - homicide/murder and arson. (emphasis and
underscoring partly in the original; emphasis partly supplied)
Presidential Decree (P.D.) No. 1613, "Amending the Law on Arson," reads:

Section 3. Other Cases of Arson. â"€ The penalty of Reclusion Temporal to Reclusion Perpetua shall be imposed if
the property burned is any of the following:

xxxx

2. Any inhabited house or dwelling;

The Court finds that there is no showing that appellant's main objective was to kill Celerina and her housemates
and that the fire was resorted to as the means to accomplish the goal.

In her Affidavit executed on August 11, 1998,[10] Felicitas stated that what she knew is that Celerina wanted
appellant, who was renting a house near Celerina's, to move out.

How Felicitas acquired such "knowledge" was not probed into, however, despite the fact that she was cross-
examined thereon.[11]

Absent any concrete basis then to hold that the house was set on fire to kill the occupants, appellant cannot be
held liable for double murder with frustrated murder. This is especially true with respect to the death of Celerina,
for even assuming arguendo that appellant wanted to kill her to get even with her in light of her alleged desire to
drive him out of the neighboring house, Celerina was outside the house at the time it was set on fire. She merely
entered the burning house to save her grandsons.

While the above-quoted Information charged appellant with "Double Murder with Frustrated Murder," appellant
may be convicted of Arson. For the only difference between a charge for Murder under Article 248 (3) of the
Revised Penal Code and one for Arson under the Revised Penal Code, as amended by Section 3 (2) of P.D. No.
1613, lies in the intent in pursuing the act.

As reflected above, as it was not shown that the main motive was to kill the occupants of the house, the crime
would only be arson, the homicide being a mere consequence thereof, hence, absorbed by arson.[12]

When there is variance between the offense charged in the complaint or information and that proved, and the
offense charged is included or necessarily includes the offense proved, conviction shall be for the offense proved
which is included in the offense charged, or the offense charged which is included in the offense proved. [13]

Under Section 5 of P.D. 1613, the penalty of reclusion perpetua to death is imposed when death results. In the light
of the passage of Republic Act No. 9346,[14] the penalty should be reclusion perpetua.

A word on the damages awarded.

The appellate court affirmed the award of compensatory damages to the heirs of Celerina. But entitlement thereto
was not proven.

The appellate court likewise affirmed the award of compensatory damages, actual damages, and moral damages
to the heirs of Alvin. Compensatory damages and actual damages are the same, however. [15] Since the trial court
awarded the duly proven actual damages of P16,500.00 representing burial expenses, the award of compensatory
damages of P50,000.00 does not lie. It is gathered from the evidence, however, that Alvin was hospitalized for five
days,[16] hence, an award of P8,500.00 as temperate damages for the purpose would be reasonable.

As for the award to Alvin of moral damages, the records do not yield any basis therefor.
More. The appellate court awarded exemplary damages "to the heirs of the victims," clearly referring to the
deceased Celerina and Alvin. Absent proof of the presence of any aggravating circumstances, however, the award
does not lie.[17]

When death occurs due to a crime, the grant of civil indemnity requires no proof other than the death of the
victim. The heirs of Celerina are thus entitled to an award of P50,000.00 as civil indemnity ex delicto.[18] And so are
Alvin's.

The appellate court's award of temperate damages of P25,000.00 to Joshua is in order.

WHEREFORE, the assailed Court of Appeals Decision of August 13, 2007 is REVERSED and SET ASIDE, and
a NEW one is rendered as follows:

Appellant, Ferdinand T. Baluntong, is found GUILTY beyond reasonable doubt of Simple Arson under Sec. 3(2) of
P.D. No. 1613 and is sentenced to suffer the penalty of reclusion perpetua with no eligibility for parole.

Appellant is ORDERED to pay the amount of P50,000.00 to the heirs of Celerina Solangon, and the same amount to
the heirs of Alvin Savariz, representing civil indemnity.

Appellant is likewise ORDERED to pay the amount of P16,500.00 to the heirs of Alvin as actual damages for burial
expenses, and P8,500.00 as temperate damages for hospitalization expenses.

Appellant is further ORDERED to pay P25,000.00 as temperate damages to the heirs of Celerina.

Finally, appellant is ORDERED to pay P25,000.00 as temperate damages to Joshua Savariz.

SO ORDERED.

THIRD DIVISION

[ G.R. No. 163938, March 28, 2008 ]

DANTE BUEBOS AND SARMELITO BUEBOS, PETITIONERS, V.S. THE PEOPLE OF THE PHILIPPINES,RESPONDENT.

DECISION

REYES, R.T., J.:

THE law on arson has always been a constant source of confusion not only among members of the bar, but also
among those of the bench. The bewilderment often centers on what law to apply and what penalty to impose.
In this case, the Court is again tasked to determine whether petitioners are liable for simple arson or arson of an
inhabited house which merits a penalty of up to reclusion perpetua.

Before the Court is a petition to review on certiorari under Rule 45 the Decision[1] of the Court of Appeals (CA),
affirming with modification that[2] of the Regional Trial Court in Tabaco, Albay, finding petitioners Dante Buebos
and Sarmelito Buebos guilty of arson.

The Facts
On January 1, 1994 around 3:00 o'clock in the morning, Adelina B. Borbe was in her house at Hacienda San Miguel,
Tabaco, Albay watching over her sick child.[3] She was lying down when she heard some noise around the house.
She got up and looked through the window and saw the four accused, Rolando Buela, Sarmelito Buebos, Dante
Buebos and Antonio Cornel, Jr. congregating in front of her hut. [4] When she went out, she saw the roof of her nipa
hut already on fire. She shouted for help. Instead of coming to her immediate succor, the four fled. [5]

At some distance away, Olipiano Berjuela heard Adelina scream for help. Olipiano was then drinking with Pepito
Borbe to celebrate New Year's Eve. Olipiano immediately ran to the place and saw a number of people jumping
over the fence. When he focused his flashlight on them, he was able to identify Sarmelito Buebos, Dante Buebos
and Antonio Cornel, Jr.[6] He also saw Rolando Buela running away.[7]

On complaint of Adelina, petitioners Dante and Sarmelito Buebos, together with Rolando Buela and Antonio
Cornel, Jr., were indicted for arson in an Information bearing the following accusations:

That on or about the 1st day of January, 1994 at 3:00 o'clock in the Barangay Hacienda, Island of San Miguel,
Municipality of Tabaco, Province of Albay, Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, conspiring, confederating and helping one another, with intent to cause damage, did then
and there wilfully, unlawfully, feloniously and maliciously set on fire the nipa roof of the house of ADELINA B.
BORBE, to the latter's damage and prejudice.
ACTS CONTRARY TO LAW.[8]

The prosecution evidence portraying the foregoing facts was principally supplied by private complainant Adelina
Borbe and Olipiano Berjuela.

Upon the other hand, denial and alibi were the main exculpating line of petitioners and their co-accused. The trial
court summed up the defense evidence in the following tenor:

The defense contended that the accused were at different places at the time of the incident; Rolando Buela
claimed to be at sitio Tugon, Malictay, San Miguel, Tabaco, Albay as there was a novena prayer at his parents'
house on occasion of the death anniversary of his late grandfather; Dante Buebos also claimed to have been at
Romeo Calleja's having gone there in the evening of December 30, 1993 and left the place at 12:00 o'clock
noontime of January 1, 1994; Sarmelito Buebos asserted that he was at his residence at sitio Malictay, Hacienda,
San Miguel, Tabaco, Albay on the day the incident happened and that he never left his house; Antonio Cornel, Jr.
likewise claimed to be at his residence at Añgas after having visited his in-laws; that he only came to know of the
accusation five (5) days after the incident happened when he visited his parents at Malictay; witnesses were
likewise presented by the accused to corroborate their testimonies.[9]

RTC and CA Dispositions

On April 7, 1998, the RTC found all of the accused guilty beyond reasonable doubt of arson. The dispositive part of
the judgment of conviction reads:

WHEREFORE, from all the foregoing, this Court finds accused ROLANDO BUELA, DANTE BUEBOS, SARMELITO
BUEBOS and ANTONIO CORNEL, JR. GUILTY beyond reasonable doubt for the crime charged; accordingly, each of
the accused is hereby sentenced to suffer the indeterminate penalty ranging from six (6) years and one (1) day
of prision mayor, as minimum, to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal as
maximum; and to pay the cost.
SO ORDERED.[10]

Via a notice of appeal, the four accused elevated the matter to the appellate court. In their appeal, they contended
that (1) the trial court erred in finding them guilty of the crime of arson; (2) that the trial court erred in finding
conspiracy; and (3) the trial court erred in failing to give weight and credence to their defense of denial and alibi.

On November 13, 2003, through an eight-page decision penned by Associate Justice Eliezer R. de los Santos, the CA
disposed of the appeal in this wise:
WHEREFORE, in view of the foregoing, the decision appealed from is hereby AFFIRMED with MODIFICATION. Each
of the accused-appellant is hereby sentenced to suffer the indeterminate penalty of imprisonment ranging from six
(6) years of prision correccional as minimum to ten (10) years of prision mayor as maximum.
SO ORDERED.[11]

In downgrading the penalty, the CA opined that the accused could only be convicted of simple arson, punishable
by prision mayor, and not for burning of an inhabited house, which is punishable by imprisonment ranging
from reclusion temporal to reclusion perpetua. According to the appellate court, the information failed to allege
with specificity the actual crime committed. Hence, the accused should be found liable only for arson in its simple
form.[12]

Issues

Dissatisfied, Dante and Sarmelito Buebos have resorted to the present recourse. The following arguments are now
raised for the Court's consideration:

I.
WHETHER THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF THE TRIAL COURT ON THE
BASIS OF CIRCUMSTANTIAL EVIDENCE;

II.
WHETHER THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT CONSPIRACY EXISTED IN THE CASE AT
BAR.[13]

Our Ruling
Overview of the law on arson

The confusion surrounding arson has been confounded by the dearth of annotation on this part of our penal law.
Certainly, the law on arson is one of the least commented in this jurisdiction. For the guidance of the bench and
bar, a brief legislative history of the body of laws on arson is in order.

Previously, arson was defined and penalized under nine different articles of the Revised Penal Code: Article 320
(destructive arson), Article 321 (other forms of arson), Article 322 (cases of arson not included in the preceding
articles), Article 323 (arson of property of small value), Article 324 (crimes involving destruction), Article 325
(burning one's own property to commit arson), Article 326 (setting fire to property exclusively owned by the
offender, Article 326-a (in cases where death resulted as a consequence of arson), and Article 326-b (prima
facie evidence of arson).

On March 7, 1979, citing certain inadequacies that impede the successful enforcement and prosecution of
arsonists, then President Ferdinand E. Marcos issued Presidential Decree (P.D) No. 1613. P.D. 1613 supplanted the
penal code provisions on arson. The pertinent parts of the said presidential issuance read:

SECTION 1. Arson. - Any person who burns or sets fire to the property of another shall be punished by prision
mayor.
The same penalty shall be imposed when a person sets fire to his own property under circumstances which expose
to danger the life or property of another.

SECTION 2. Destructive Arson. - The penalty of reclusion temporal in its maximum period to reclusion
perpetua shall be imposed if the property burned is any of the following:

1. Any ammunition factory and other establishments where explosives, inflammable or combustible
materials are stored;
2. Any archive, museum, whether public or private, or any edifice devoted to culture, education or social
services;
3. Any church or place of worship or other building where people usually assemble;
 4. Any train, airplane or any aircraft, vessel or watercraft, or conveyance for transportation of persons or
property;
5. Any building where evidence is kept for use in any legislative, judicial, administrative or other official
proceedings;
6. Any hospital, hotel, dormitory, lodging house, housing tenement, shopping center, public or private
market, theater or movie house or any similar place or building;
7. Any building, whether used as a dwelling or not, situated in a populated or congested area.

SECTION 3. Other Cases of Arson. - The penalty of reclusion temporal to reclusion perpetua shall be imposed if the
property burned is any of the following:

1. Any building used as offices of the government or any of its agencies;

2. Any inhabited house or dwelling;
3. Any industrial establishment, shipyard, oil well or mine shaft, platform or tunnel;
4. Any plantation, farm, pastureland, growing crop, grain field, orchard, bamboo grove or forest;
5. Any rice mill, sugar mill, cane mill or mill central; and
6. Any railway or bus station, airport, wharf or warehouse.

SECTION 4. Special Aggravating Circumstances in Arson. - The penalty in any case of arson shall be imposed in its
maximum period:

1. If committed with the intent to gain;

2. If committed for the benefit of another;
3. If the offender is motivated by spite or hatred towards the owner or occupant of the property burned;
4. If committed by a syndicate. The offense is committed by a syndicate if it is
planned or carried out by a group of three (3) or more persons.

SECTION 5. Where Death Results from Arson. - If by reason of or on the occasion of arson death results, the penalty
of reclusion perpetua to death shall be imposed.

SECTION 6. Prima Facie Evidence of Arson. - Any of the following circumstances shall constitute prima
facie evidence of arson:

1. If the fire started simultaneously in more than one part of the building or establishment.
2. If substantial amount of flammable substances or materials are stored within the building not necessary in
the business of the offender nor for household use.
3. If gasoline, kerosene, petroleum or other flammable or combustible substances or materials soaked
therewith or containers thereof, or any mechanical, electrical, chemical, or electronic contrivance
designed to start a fire, or ashes or traces of any of the foregoing are found in the ruins or premises of the
burned building or property.
4. If the building or property is insured for substantially more than its actual value at the time of the
issuance of the policy.
5. If during the lifetime of the corresponding fire insurance policy more than two fires have occurred in the
same or other premises owned or under the control of the offender and/or insured.
6. If shortly before the fire, a substantial portion of the effects insured and stored in a building or property
had been withdrawn from the premises except in the ordinary course of business.
7. If a demand for money or other valuable consideration was made before the fire in exchange for the
desistance of the offender or for the safety of other person or property of the victim.

SECTION 7. Conspiracy to Commit Arson. - Conspiracy to commit arson shall be punished by prision mayor in its
minimum period.
SECTION 8. Confiscation of Object of Arson. - The building which is the object of arson including the land on which
it is situated shall be confiscated and escheated to the State, unless the owner thereof can prove that he has no
participation in nor knowledge of such arson despite the exercise of due diligence on his part.

On November 11, 1980, the law on arson was again revisited via P.D. No. 1744. The new law expanded the
definition of destructive arson by way of reinstating Article 320 of the Revised Penal Code. The amendatory
legislation also paved the way for the reimposition of the capital punishment on destructive arsonists.

When Republic Act (R.A.) No. 7659 (An Act to Impose the Death Penalty on Certain Heinous Crimes) was passed on
December 13, 1993, Article 320 again underwent a revision. As it now stands, Article 320 of the Revised Penal
Code is worded, thus:

Art. 320. Destructive Arson. - The penalty of reclusion perpetua to death shall be imposed upon any person who
shall burn:

1. One (1) or more buildings or edifices, consequent to one single act of burning, or as a result of
simultaneous burnings, committed on several or different occasions.
2. Any building of public or private ownership, devoted to the public in general or where people usually
gather or congregate for a definite purpose such as, but not limited to, official governmental function or
business, private transaction, commerce, trade, workshop, meetings and conferences, or merely
incidental to a definite purpose such as but not limited to hotels, motels, transient dwellings, public
conveyances or stops or terminals, regardless of whether the offender had knowledge that there are
persons in said building or edifice at the time it is set on fire and regardless also of whether the building is
actually inhabited or not.
3. Any train or locomotive, ship or vessel, airship or airplane, devoted to transportation or conveyance, or
for public use, entertainment or leisure.
4. Any building, factory, warehouse installation and any appurtenances thereto, which are devoted to the
service of public utilities.
5. Any building the burning of which is for the purpose of concealing or destroying evidence of another
violation of law, or for the purpose of concealing bankruptcy or defrauding creditors or to collect from
insurance.

Irrespective of the application of the above enumerated qualifying circumstances, the penalty of reclusion
perpetua to death shall likewise be imposed when the arson is perpetrated or committed by two (2) or more
persons or by a group of persons, regardless of whether their purpose is merely to burn or destroy the building or
the burning merely constitutes an overt act in the commission or another violation of law.

The penalty of reclusion perpetua to death shall also be imposed upon any person who shall burn:

1. Any arsenal, shipyard, storehouse or military powder or fireworks factory, ordinance, storehouse, archives
or general museum of the Government.
2. In an inhabited place, any storehouse or factory of inflammable or explosive materials.

If as a consequence of the commission of any of the acts penalized under this Article, death results, the mandatory
penalty of death shall be imposed.

Of course, with the repeal of the Death Penalty Law on June 24, 2006 through R.A. No. 9346, arson is no longer a
capital offense.[14]

We proceed to the crux of the petition.

Circumstantial evidence points to
petitioners' culpability

Petitioners score the CA for convicting them of arson based on circumstantial evidence. They argue that the
inference that they were responsible for the burning of private complainant's hut was not duly proven by the
People.

Circumstantial evidence is defined as that evidence that "indirectly proves a fact in issue through an inference
which the fact-finder draws from the evidence established. Resort thereto is essential when the lack of direct
testimony would result in setting a felon free."[15]

At the outset, We may well emphasize that direct evidence of the commission of a crime is not the only basis on
which a court draws its finding of guilt. Established facts that form a chain of circumstances can lead the mind
intuitively or impel a conscious process of reasoning towards a conviction.[16] Verily, resort to circumstantial
evidence is sanctioned by Rule 133, Section 5 of the Revised Rules on Evidence. [17]

The following are the requisites for circumstantial evidence to be sufficient for a conviction: (a) there is more than
one circumstance; (b) the facts from which the inferences are derived have been proven; and (c) the combination
of all the circumstances results in a moral certainty that the accused, to the exclusion of all others, is the one who
has committed the crime. Thus, to justify a conviction based on circumstantial evidence, the combination of
circumstances must be interwoven in such a way as to leave no reasonable doubt as to the guilt of the accused. [18]

After a careful review of the evidence presented by both parties, We find that the circumstantial evidence extant
in the records is sufficient to identify petitioners as the authors of the burning of the hut of private complainant
Adelina Borbe:

1. Private complainant heard some noise emanating from outside her house at around 3:00 a.m.;
2. When she went out to check the disturbance, private complainant saw petitioners, together with their
two other co-accused, standing in front of the house;
3. Moments later, the roof of her house caught fire;
4. Petitioners and their cohorts absconded while private complainant desperately shouted for help.

The facts from which the cited circumstances arose have been proved through positive testimony. [19] Evidently,
these circumstances form an unbroken chain of events leading to one fair conclusion - the culpability of petitioners
for the burning of the hut. The Court is convinced that the circumstances, taken together, leave no doubt that
petitioner perpetrated the arson.

Conspiracy evident from coordinated

action of petitioners

Petitioners next contend that conspiracy was erroneously appreciated by both the trial and appellate courts. They
posit that the finding of conspiracy was premised on speculation and conjecture.

The rule is well-entrenched in this jurisdiction that conspiracy exists when two or more persons come to an
agreement concerning the commission of a crime and decide to commit it. Proof of the agreement need not rest
on direct evidence, as the same may be inferred from the conduct of the parties indicating a common
understanding among them with respect to the commission of the offense. Corollarily, it is not necessary to show
that two or more persons met together and entered into an explicit agreement setting out the details of an
unlawful scheme or the details by which an illegal objective is to be carried out. The rule is that conviction is
proper upon proof that the accused acted in concert, each of them doing his part to fulfill the common design. In
such a case, the act of one becomes the act of all and each of the accused will thereby be deemed equally guilty of
the crime committed.[20]
In the case at bench, conspiracy was evident from the coordinated movements of petitioners Dante and Sarmelito
Buebos. Both of them stood outside the house of private complainant Adelina. They were part of the group making
boisterous noise in the vicinity. Petitioners also fled together while the roof of Adelina's house was ablaze. These
acts clearly show their joint purpose and design, and community of interest.

We quote with approval the CA observation along this line:

Accused-appellant's assertion that conspiracy has not been established is belied by the accounts of the
prosecution witness. The manner by which the accused- appellants behaved after the private complainant shouted
for help clearly indicated a confederacy of purpose and concerted action on the part of the accused-appellants.
Even if there is no direct evidence showing that all of the accused had prior agreement on how to set the roof of
the house on fire, the doctrine is well settled that conspiracy need not be proved by direct evidence of prior
agreement to commit the crime. Very seldom such prior agreement be demonstrable since, in the nature of things,
criminal undertakings are only rarely documented by agreements in writing. [21]

Crime committed and the penalty

The RTC sentenced all four accused to an indeterminate penalty ranging from six (6) years and one day of prision
mayor, as minimum, to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal as maximum.
On appeal, the CA reduced the sentence to six (6) years of prision correccional, as minimum, to ten (10) years
of prision mayor, as maximum. The CA ratiocinated:

The information charges accused-appellants with "violation of P.D. 1613" without specifying the particular
provision breached. The information having failed to allege whether or not the burnt house is inhabited, and not
having been established that the house is situated in a populated or congested area, accused-appellants should be
deemed to have only been charged with plain arson under Section 1 of the decree. Under Section 1 of the decree,
the offense of simple arson committed is punishable by prision mayor .
There being neither aggravating nor mitigating circumstances in the case at bar accused-appellants should be
sentenced to suffer the penalty of prision mayor in its medium period as provided under Article 321, paragraph 1
of the Revised Penal Code, as amended, by Presidential Decree No. 1613. Applying the Indeterminate Sentence
Law, the minimum penalty should be anywhere within the range of prision correccional.[22]

The legal basis of the trial court in convicting petitioners of arson is Section 3, paragraph 2 of P.D. No. 1613. The
said provision of law reads:

SECTION 3.Other Cases of Arson. - The penalty of reclusion temporal to reclusion perpetua shall be imposed if the
property burned is any of the following:
xxxx
2.Any inhabited house or dwelling;

The elements of this form of arson are: (a) there is intentional burning; and (b) what is intentionally burned is an
inhabited house or dwelling.[23] Admittedly, there is a confluence of the foregoing elements here. However, the
information failed to allege that what was intentionally burned was an inhabited house or dwelling. That is fatal.

Sections 8 and 9 of the 2000 Rules of Criminal Procedure state:

Sec. 8. Designation of the offense. - The complaint or information shall state the designation of the offense given
by the statute, aver the acts or omissions constituting the offense, and specify its qualifying and aggravating
circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the
statute punishing it.
Sec. 9. Cause of the accusation. - The acts or omissions complained of as constituting the offense and the qualifying
and aggravating circumstances must be stated in ordinary and concise language and not necessarily in the
language used in the statute but in terms sufficient to enable a person of common understanding to know what
offense is being charged as well as its qualifying and aggravating circumstances for the court to pronounce
judgment.
Under the new rules, the information or complaint must state the designation of the offense given by the statute
and specify its qualifying and generic aggravating circumstances. Otherwise stated, the accused will not be
convicted of the offense proved during the trial if it was not properly alleged in the information. [24]

Perusing the information, there was no allegation that the house intentionally burned by petitioners and their
cohorts was inhabited. Rather, the information merely recited that "accused, conspiring, confederating and
helping one another, with intent to cause damage, did then and there wilfully, unlawfully, feloniously and
maliciously set on fire the nipa roof of the house of ADELINA B. BORBE, to the latter's damage and prejudice." [25]

Although the rule took effect only on December 1, 2000, while the petitioners were convicted by the RTC on April
7, 1998, it may be applied retroactively. It is elementary that rules of criminal procedure are given retroactive
application insofar as they benefit the accused.[26]

In fine, petitioners can be convicted only of simple arson, under Section 1, paragraph 1 of P.D. No. 1613,
punishable by prision mayor.

This is not a case of first impression. This Court has, on a number of occasions, modified the RTC and CA judgments
for having applied the wrong law and penalty on arson. In People v. Soriano,[27] the accused was found guilty of
destructive arson, then a capital offense. On automatic review, the Court held that he should be held liable only for
simple arson. The explanation:

However, we believe that the applicable provision of law should be Sec. 3, par. 2, of PD 1613, which imposes a
penalty of reclusion temporal to reclusion perpetua for other cases of arson as the properties burned by accused-
appellant are specifically described as houses, contemplating inhabited houses or dwellings under the aforesaid
law. The descriptions as alleged in the second Amended Information particularly refer to the structures as houses
rather than as buildings or edifices. The applicable law should therefore be Sec. 3, par. 2, of PD 1613, and not Art.
320, par. 1 of the Penal Code. In case of ambiguity in construction of penal laws, it is well-settled that such laws
shall be construed strictly against the government, and literally in favor of the accused.
The elements of arson under Sec. 3, par. 2, of PD 1613 are: (a) there is intentional burning; and (b) what is
intentionally burned is an inhabited house or dwelling. Incidentally, these elements concur in the case at bar.

The nature of Destructive Arson is distinguished from Simple Arson by the degree of perversity or viciousness of
the criminal offender. The acts committed under Art. 320 of The Revised Penal Code constituting Destructive Arson
are characterized as heinous crimes "for being grievous, odious and hateful offenses and which, by reason of their
inherent or manifest wickedness, viciousness, atrocity and perversity are repugnant and outrageous to the
common standards and norms of decency and morality in a just, civilized and ordered society." On the other hand,
acts committed under PD 1613 constituting Simple Arson are crimes with a lesser degree of perversity and
viciousness that the law punishes with a lesser penalty. In other words, Simple Arson contemplates crimes with
less significant social, economic, political and national security implications than Destructive Arson. However, acts
falling under Simple Arson may nevertheless be converted into Destructive Arson depending on the qualifying
circumstances present.

In the present case, the act committed by accused-appellant neither appears to be heinous nor represents a
greater degree of perversity and viciousness as distinguished from those acts punishable under Art. 320 of the
Revised Penal Code. No qualifying circumstance was established to convert the offense to Destructive Arson. The
special aggravating circumstance that accused-appellant was "motivated by spite or hatred towards the owner or
occupant of the property burned" cannot be appreciated in the present case where it appears that he was acting
more on impulse, heat of anger or risen temper rather than real spite or hatred that impelled him to give vent to
his wounded ego. Nothing can be worse than a spurned lover or a disconsolate father under the prevailing
circumstances that surrounded the burning of the Cimagala house. Thus, accused-appellant must be held guilty of
Simple Arson penalized under Sec. 3, par. 2, of PD 1613 for the act of intentionally burning an inhabited house or
dwelling.[28]
An oversight of the same nature was addressed by this Court in the more recent case of People v. Malngan.[29] Said
the Court in Malngan:

The ultimate query now is which kind of arson is accused-appellant guilty of?
As previously discussed, there are two (2) categories of the crime of arson: 1) destructive arson, under Art. 320 of
the Revised Penal Code, as amended by Republic Act No. 7659; and 2) simple arson, under Presidential Decree No.
1613. Said classification is based on the kind, character and location of the property burned, regardless of the
value of the damage caused, 48 to wit:

Article 320 of The Revised Penal Code, as amended by RA 7659, contemplates the malicious burning of structures,
both public and private, hotels, buildings, edifices, trains, vessels, aircraft, factories and other military,
government or commercial establishments by any person or group of persons. The classification of this type of
crime is known as Destructive Arson, which is punishable by reclusion perpetua to death. The reason for the law is
self-evident: to effectively discourage and deter the commission of this dastardly crime, to prevent the destruction
of properties and protect the lives of innocent people. Exposure to a brewing conflagration leaves only destruction
and despair in its wake; hence, the State mandates greater retribution to authors of this heinous crime. The
exceptionally severe punishment imposed for this crime takes into consideration the extreme danger to human
lives exposed by the malicious burning of these structures; the danger to property resulting from the conflagration;
the fact that it is normally difficult to adopt precautions against its commission, and the difficulty in pinpointing the
perpetrators; and, the greater impact on the social, economic, security and political fabric of the nation. [Emphasis
supplied]

If as a consequence of the commission of any of the acts penalized under Art. 320, death should result, the
mandatory penalty of death shall be imposed.

On the other hand, PD 1613 which repealed Arts. 321 to 326-B of The Revised Penal Code remains the governing
law for Simple Arson. This decree contemplates the malicious burning of public and private structures, regardless
of size, not included in Art. 320, as amended by RA 7659, and classified as other cases of arson. These
include houses, dwellings, government buildings, farms, mills, plantations, railways, bus stations, airports,
wharves and other industrial establishments. Although the purpose of the law on Simple Arson is to prevent the
high incidence of fires and other crimes involving destruction, protect the national economy and preserve the
social, economic and political stability of the nation, PD 1613 tempers the penalty to be meted to offenders. This
separate classification of Simple Arson recognizes the need to lessen the severity of punishment commensurate to
the act or acts committed, depending on the particular facts and circumstances of each case. [Emphasis supplied]

To emphasize:

The nature of Destructive Arson is distinguished from Simple Arson by the degree of perversity or viciousness of
the criminal offender. The acts committed under Art. 320 of the Revised Penal Code (as amended) constituting
Destructive Arson are characterized as heinous crimes for being grievous, odious and hateful offenses and which,
by reason of their inherent or manifest wickedness, viciousness, atrocity and perversity are repugnant and
outrageous to the common standards and norms of decency and morality in a just, civilized and ordered society.
On the other hand, acts committed under PD 1613 constituting Simple Arson are crimes with a lesser degree of
perversity and viciousness that the law punishes with a lesser penalty. In other words, Simple Arson contemplates
crimes with less significant social, economic, political and national security implications than Destructive Arson.
However, acts falling under Simple Arson may nevertheless be converted into Destructive Arson depending on the
qualifying circumstances present. [Emphasis supplied.]

Prescinding from the above clarification vis-à-vis the description of the crime as stated in the accusatory portion of
the Information, it is quite evident that accused- appellant was charged with the crime of Simple Arson - for having
"deliberately set fire upon the two-storey residential house of ROBERTO SEPARA and family x x x knowing the same
to be an inhabited house and situated in a thickly populated place and as a consequence thereof a conflagration
ensued and the said building, together with some seven (7) adjoining residential houses, were razed by fire."
[Emphasis supplied]
The facts of the case at bar is somewhat similar to the facts of the case of People v. Soriano. The accused in the
latter case caused the burning of a particular house. Unfortunately, the blaze spread and gutted down five (5)
neighboring houses. The RTC therein found the accused guilty of destructive arson under paragraph 1 of Art. 320
of the Revised Penal Code, as amended by Republic Act No. 7659. This Court, through Mr. Justice Bellosillo,
however, declared that:

"x x x [T]he applicable provision of law should be Sec. 3, par. 2, of PD 1613, which imposes a penalty of reclusion
temporal to reclusion perpetua for other cases of arson as the properties burned by accused-appellant
are specifically described as houses, contemplating inhabited houses or dwellings under the aforesaid law. The
descriptions as alleged in the second Amended Information particularly refer to the structures as houses rather
than as buildings or edifices.

The applicable law should therefore be Sec. 3, Par. 2, of PD 1613, and not Art. 320, par. 1 of the Penal Code. In case
of ambiguity in construction of penal laws, it is well-settled that such laws shall be construed strictly against the
government, and liberally in favor of the accused.
The elements of arson under Sec. 3, par. 2, of PD 1613 are: (a) there is intentional burning; and (b) what is
intentionally burned is an inhabited house or dwelling. Incidentally, these elements concur in the case at bar."

As stated in the body of the Information, accused-appellant was charged with having intentionally burned the two-
storey residential house of Robert Separa. Said conflagration likewise spread and destroyed seven (7)
adjoining houses. Consequently, if proved, as it was proved, at the trial, she may be convicted, and sentenced
accordingly, of the crime of simple arson. Such is the case "notwithstanding the error in the designation of the
offense in the information, the information remains effective insofar as it states the facts constituting the crime
alleged therein." "What is controlling is not the title of the complaint, nor the designation of the offense charged
or the particular law or part thereof allegedly violate, x x x but the description of the crime charged and the
particular facts therein recited."

There is, thus, a need to modify the penalty imposed by the RTC as Sec. 5 of PD No. 1613 categorically provides
that the penalty to be imposed for simple arson is:

SEC. 5. Where Death Results from Arson. - If by reason of or on the occasion of arson death results, the penalty
of reclusion perpetua to death shall be imposed. [Emphasis supplied]

Accordingly, there being no aggravating circumstance alleged in the Information, the imposable penalty on
accused-appellant is reclusion perpetua.[30]

Now, to the penalty. Applying the Indeterminate Sentence Law, the maximum of the indeterminate penalty should
range from six (6) years and one (1) day to twelve (12) years. Considering that no aggravating or mitigating
circumstance attended the commission of the offense, the penalty should be imposed in its medium period [eight
(8) years and one (1) day to ten (10) years]. The minimum of the indeterminate sentence is
prision correccional, which has a range of six (6) months and one (1) day to six (6) years, to be imposed in any of its
periods.

The CA sentence is in accord with law and jurisprudence. We sustain it.

WHEREFORE, the petition is DENIED. The appealed judgment is

AFFIRMED in full.

SO ORDERED.

SECOND DIVISION
 [ G.R. No. 142565, July 29, 2003 ]

PEOPLE OF THE PHILIPPINES, APPELLEE, VS. NESTOR G. SORIANO ALIAS "BOY," APPELLANT.

DECISION

BELLOSILLO, J.:

WHAT STARTED OUT AS AN ORDINARY LOVERS' QUARREL turned out to be a nightmarish inferno for the residents
of Datu Abing Street, Calinan, Davao City. The unmitigated passion and impulses incessantly burning in the heat of
the moment ignited the series of events that resulted in the conflagration of 18 September 1998 mercilessly
destroying the houses along its path. The age-old forewarning that "he who plays close to the fire shall ultimately
be consumed by its flames" fits literally and figuratively into this tragic tale of lust, love, betrayal and isolation.
After the smoke had dissipated and the heat simmered down, Nestor G. Soriano found himself charged before the
RTC of Davao City with and later convicted of Destructive Arson penalized under Art. 320 of The Revised Penal
Code, as amended by Sec. 10, par. 1, RA 7659, and sentenced to reclusion perpetua.[1]

The factual backdrop: About midnight of 17 September onto the early dawn of 18 September 1998 accused-
appellant Nestor G. Soriano was having an argument with his live-in partner Honey Rosario Cimagala concerning
their son Nestor, Jr., nicknamed "Otoy." Honey worked as Guest Relations Officer (GRO) in a Metro Manila beer
house. The disagreement stemmed from the fact that Honey's brother, Oscar Cimagala, took their child out
without the consent of accused-appellant who wanted both Honey and Otoy instead to return with him to Manila.
But Honey refused. As their discussion wore on accused-appellant intimated to Honey his desire to have sex with
her, which he vigorously pursued the night before with much success. This time Honey did not relent to the baser
instincts of Nestor; instead, she kicked him as her stern rebuke to his sexual importuning.

Incensed by her negative response, Nestor nastily retorted: "[S]he is now arrogant and proud of her brother who
now supported (sic) her and her children."[2] He added that since he returned from Manila, the house had become
"unlucky," referring to that belonging to her aunt Fe Cimagila then occupied by Honey located at Datu Abing
Street, Calinan, Davao City.[3]

In the heated exchanges, Nestor struck Honey in the forehead. "You are hurting me," she snapped back, "just like
what you did to me in Manila."[4]

Nestor then moved away as he muttered: "It is better that I burn this house," [5] and then took a match from the
top of a cabinet, lighted a cigarette and set fire to the plastic partition that served as divider of Honey's room. [6]

With her naked body precariously draped in a towel, Honey instinctively took off her covering and doused off the
flame with it. Then she rushed to her cabinet in the room to get a T-shirt and put it on. But Nestor did his worst; he
went to Honey's room and set on fire her clothes in the cabinet.

Honey fled to the ground floor; Nestor followed her. As the conflagration was now engulfing the second story of
the house, Honey frantically shouted to her uncle Simplicio Cabrera, who was residing next door, "Boy is setting
the house on fire," referring to Nestor.[7]

On the ground floor Nestor grappled with Honey and choked her as he dragged her towards the kitchen. She told
him that it would be better for him to kill her than to set the house on fire as it would endanger the neighboring
houses. After initially pointing a knife at Honey, Nestor finally laid down his knife and hurriedly went back to the
second floor only to see the entire area in flames. They had no choice but to leave as the fire spread rapidly to the
neighboring houses. As a result, the house occupied by Honey was totally burned together with five (5)
neighboring houses[8] owned individually by Fructuosa Jambo, Ruth Fernandez, Orlando Braña, Simplicio Cabrera
and Perla Clerigo.[9]
Subsequently, on 21 September 1998 an Information was filed against accused-appellant Nestor G. Soriano alias
"Boy" for Arson.[10] On 30 October 1998, the Information was amended to specify the charge as Destructive
Arson[11] under Art. 320, Sec. 10, as amended by RA 7659 and PD 1613. Again on 18 January 1999, [12] upon prior
motion of accused through counsel for reinvestigation, the prosecution filed a second Amended
Information charging the accused with the same crime of arson but "under Art. 320, Sec. 10 as amended by RA
7659 and PD 1744," and adding the phrase "motivated by spite or hatred towards the occupant of the property,"
as a special aggravating circumstance, further including the name of "Orlando Braña" whose house worth
P1,000,000.00 was also burned.

In the trial, Honey Rosario Cimagala, Oscar Cimagala, Fructuosa Jambo, Ruth Fernandez, Orlando Braña, Simplicio
Cabrera and Perla Clerigo, among others, were presented as witnesses for the prosecution.

Accused-appellant was the lone witness for his defense.

On 3 September 1999, the RTC of Davao City, Branch 17, found Nestor G. Soriano alias Boy guilty of Destructive
Arson as charged pursuant to RA 7659, Sec. 10, par. 1, as amended, and sentenced him to reclusion perpetua. The
court a quo also ordered him to pay the complainants whose houses were likewise burned together with that of Fe
Cimagala in the following manner: Fructuosa Jambo, Simplicio Cabrera, Perla Clerigo, Orlando Braña and Oscar
Cimagala P1,000,000.00 each as estimated value of their respective houses, including another amount of
P100,000.00 each as moral damages and P50,000.00 each by way of exemplary damages, and the costs of suit.

Arson is the malicious burning of property. Under Art. 320 of The Revised Penal Code, as amended, and PD
1613, Arson is classified into two kinds: (1) Destructive Arson (Art. 320) and (2) other cases of arson (PD 1613). This
classification is based on the kind, character and location of the property burned, regardless of the value of the
damage caused.

Article 320 of The Revised Penal Code, as amended by RA 7659, contemplates the malicious burning of structures,
both public and private, hotels, buildings, edifices, trains, vessels, aircraft, factories and other military, government
or commercial establishments by any person or group of persons. [13] The classification of this type of crime is
known as Destructive Arson, which is punishable by reclusion perpetua to death. The reason for the law is self-
evident: to effectively discourage and deter the commission of this dastardly crime, to prevent the destruction of
properties and protect the lives of innocent people. Exposure to a brewing conflagration leaves only destruction
and despair in its wake; hence, the State mandates greater retribution to authors of this heinous crime. The
exceptionally severe punishment imposed for this crime takes into consideration the extreme danger to human
lives exposed by the malicious burning of these structures; the danger to property resulting from the conflagration;
the fact that it is normally difficult to adopt precautions against its commission, and the difficulty in pinpointing the
perpetrators; and, the greater impact on the social, economic, security and political fabric of the nation.

If as a consequence of the commission of any of the acts penalized under Art. 320, death should result, the
mandatory penalty of death shall be imposed.

On the other hand, PD 1613 which repealed Arts. 321 to 326-B of The Revised Penal Code remains the governing
law for Simple Arson. This decree contemplates the malicious burning of public and private structures, regardless
of size, not included in Art. 320, as amended by RA 7659, and classified as other cases of arson. These include
houses, dwellings, government buildings, farms, mills, plantations, railways, bus stations, airports, wharves and
other industrial establishments.[14] Although the purpose of the law on Simple Arson is to prevent the high
incidence of fires and other crimes involving destruction, protect the national economy and preserve the social,
economic and political stability of the nation, PD 1613 tempers the penalty to be meted to offenders. This separate
classification of Simple Arsonrecognizes the need to lessen the severity of punishment commensurate to the act or
acts committed, depending on the particular facts and circumstances of each case.

Under Sec. 4 of PD 1613, if special aggravating circumstances are present in the commission of Simple Arson, the
penalty under Sec. 3 shall be imposed in its maximum period: (a) If committed with intent to gain; (b) If committed
for the benefit of another; (c) If the offender is motivated by spite or hatred towards the owner or occupant of the
property burned; and, (d) If committed by a syndicate, or group of three (3) or more persons. If by reason, or on
the occasion of Simple Arson death results, the penalty of reclusion perpetua to death shall be imposed.

Although intent may be an ingredient of the crime of Arson, it may be inferred from the acts of the accused. There
is a presumption that one intends the natural consequences of his act; and when it is shown that one has
deliberately set fire to a building, the prosecution is not bound to produce further evidence of his wrongful
intent.[15] If there is an eyewitness to the crime of Arson, he can give in detail the acts of the accused. When this is
done the only substantial issue is the credibility of the witness. [16] In the crime of Arson, the prosecution may
describe the theatre of the crime and the conditions and circumstances surrounding it. Evidence of this type is part
of the res gestae.[17]

It is well settled in our jurisdiction that the factual findings of the court a quo as well as the conclusions on the
credibility of witnesses are generally not disturbed. We have no cogent reason to deviate from this rule in the case
at bar.

On the basis of the categorical testimony of Honey Rosario Cimagala positively identifying accused-appellant as the
one responsible for the burning of the house of Fe Cimagala in the early morning of 18 September 1998, the trial
court found the accused Nestor G. Soriano guilty as charged.

The accused's denial of the crime cannot be an adequate defense against the charge. In People v. Mahinay[18] we
held that mere denial by witnesses particularly when not corroborated or substantiated by clear and evidencing
evidence cannot prevail over the testimony of credible witnesses who testify on affirmative matters. Denial being
in the nature of negative and self-serving evidence is seldom given weight in law. Positive and forthright
declarations of witnesses are even held to be worthier of credence than a self-serving denial.

We agree with the court a quo that the quantum of proof required to convict an accused in a criminal case has
been satisfied in the present dispute. Proof beyond reasonable doubt does not mean such a degree of proof as,
excluding the possibility of error, produces absolute certainty. Only moral certainty is required, or that degree of
proof which produces conviction in an unprejudiced mind.[19]

The legal basis of the trial court for convicting accused-appellant is Art. 320, par. 1, of The Revised Penal Code, as
amended by RA 7659, Sec. 10, par. 1. Under this provision, a person found guilty of Destructive Arson is punishable
by reclusion perpetua to death where the burning affects one (1) or more buildings or edifices, consequent to one
single act of burning, or as a result of simultaneous burnings, or committed on several or different occasions.

However, we believe that the applicable provision of law should be Sec. 3, par. 2, of PD 1613, [20] which imposes a
penalty of reclusion temporal to reclusion perpetua for other cases of arson as the properties burned by accused-
appellant are specifically described as houses, contemplating inhabited houses or dwellings under the aforesaid
law. The descriptions as alleged in the second Amended Information particularly refer to the structures
as houses rather than as buildings or edifices. The applicable law should therefore be Sec. 3, par. 2, of PD 1613, and
not Art. 320, par. 1 of the Penal Code. In case of ambiguity in construction of penal laws, it is well-settled that such
laws shall be construed strictly against the government, and literally in favor of the accused.

The elements of arson under Sec. 3, par. 2, of PD 1613 are: (a) there is intentional burning; and (b) what is
intentionally burned is an inhabited house or dwelling. Incidentally, these elements concur in the case at bar.

The nature of Destructive Arson is distinguished from Simple Arson by the degree of perversity or viciousness of
the criminal offender. The acts committed under Art. 320 of The Revised Penal Code constituting Destructive
Arson are characterized as heinous crimes "for being grievous, odious and hateful offenses and which, by reason
of their inherent or manifest wickedness, viciousness, atrocity and perversity are repugnant and outrageous to
the common standards and norms of decency and morality in a just, civilized and ordered society."[21] On the
other hand, acts committed under PD 1613 constituting Simple Arsonare crimes with a lesser degree of perversity
and viciousness that the law punishes with a lesser penalty. In other words, Simple Arsoncontemplates crimes with
less significant social, economic, political and national security implications than Destructive Arson. However, acts
falling under Simple Arson may nevertheless be converted into Destructive Arson depending on the qualifying
circumstances present.

In the present case, the act committed by accused-appellant neither appears to be heinous nor represents a
greater degree of perversity and viciousness as distinguished from those acts punishable under Art. 320 of The
Revised Penal Code. No qualifying circumstance was established to convert the offense to Destructive Arson. The
special aggravating circumstance that accused-appellant was "motivated by spite or hatred towards the owner or
occupant of the property burned" cannot be appreciated in the present case where it appears that he was acting
more on impulse, heat of anger or risen temper rather than real spite or hatred that impelled him to give vent to
his wounded ego.[22] Nothing can be worse than a spurned lover or a disconsolate father under the prevailing
circumstances that surrounded the burning of the Cimagala house. Thus, accused-appellant must be held guilty
of Simple Arson penalized under Sec. 3, par. 2, of PD 1613 for the act of intentionally burning an inhabited house or
dwelling.

In addition, we find that there exists a mitigating circumstance that should have been appreciated by the trial court
in determining the penalty to be imposed on the accused-appellant: a circumstance similar and analogous to
passion and obfuscation.[23] An impulse of invidious or resentful feelings contemplates a situation akin to passion
and obfuscation. This circumstance is mitigating since, like passion and obfuscation, the accused who acts with
these feelings suffers a diminution of his intelligence and intent, a reduction in his mental and rational faculties.

It has been satisfactorily shown by the court a quo that the lovers' quarrel between Nestor Soriano and Honey
Rosario Cimagala ignited the chain of events that led to the conflagration that occurred in the early dawn of 18
September 1998. Passions were inflamed in the evening of 17 September 1998 due to the impending return of
Soriano to Manila the following day with the prospect of leaving behind in Davao his son Otoy who bears his
namesake "Nestor Jr." But reason, unfortunately, did not prevail; emotions took control of the events that were to
unfold. His efforts went to naught; his attempts to win back his forbidden love were likewise thwarted. Verily, the
resentment accused-appellant felt came from the realization that he may never see his son again once he left
Davao; that his utter frustration in trying to convince Honey Rosario Cimagala to return to Manila with their son
brought with it a reduction of his rational faculties within that moment in time. Although emanating from lawful
sentiments, the actuations of accused-appellant led to his criminal act of burning the Cimagala home, and other
neighboring houses. In other words, accused-appellant was in a state of extreme emotional stress.

Mr. Justice Adam C. Carson, in his concurring opinion in United States v. Butardo,[24] gives his view on the
graduation of penalties for the crime of Arson under the Spanish Penal Code. In the old law on which The Revised
Penal Code is based, he comments that the authors clearly had in mind certain considerations in imposing
penalties of exceptional severity in the various cases of arson. The observations of Mr. Justice Carson
in Butardo are thus still relevant in our contemporary interpretation of criminal law:

The authors of the Spanish Penal Code, in imposing penalties of exceptional severity in certain cases of arson,
clearly had in mind:

First. The extreme danger to which human lives may be exposed by the malicious burning of dwelling houses and
the like;

Second. The danger to property resulting from widespread conflagrations;

Third. The fact that it is extremely difficult to adopt precautions against the commission of the crime, and to
discover the perpetrators after its commission.

Formerly, where these elements marked the commission of the crime, the single penalty prescribed by law was that
of death, but this severity was finally relaxed, and while exceptionally severe penalties are still imposed in such
cases, the authors of the Penal Code appear to have endeavored to graduate these penalties in accordance with
the degree of danger to life and property, resulting from the commission of the crime.

To this end the severest penalties are prescribed for the malicious burning of edifies in which large numbers of
persons are assembled. Less harsh, but still very severe penalties are imposed on those setting fire to dwelling
houses and other buildings more or less permanently occupied. Less severe penalties on those guilty of burning
unoccupied dwellings, the penalty being more or less severe as the house appeared to be situated so as to make a
widespread conflagration more or less probable. And finally, sufficient, but not notably harsh penalties are
prescribed in cases where the property of others is set on fire under conditions which do not suggest special danger
to human life or the likelihood of considerable destruction of property.
In a concurring opinion, this time in U.S. v. Burns, Mr. Justice Ignacio Villamor explains the rationale behind the
penalties for Arson:[25]

In the opinion of Groizard, one of the most famous commentators on the Spanish Penal Code, of which ours is but a
copy, "it is the potential damage that is considered here in fixing the grave penalty of cadena temporal to cadena
perpetua. The risk which a person runs who may be found in a place that is burned, whether it be a building, a
farm-house, a hut or shelter, or a vessel in port, is what constitutes the gravity which is the object of this crime; just
as the damaging intent of the agent, manifested by his setting fire to a place where he knows there is one or more
persons, gives an idea of his subjective perversity."

The same author adds: "In the classification of the crime attention must be given to the intention of the author.
When fire is used with the intent to kill a determined person who may be in a shelter, and that object is secured, the
crime committed is not that defined herein, but that of murder, penalized in article 418 (art. 403 of the Penal Code
of the Philippines), with the penalty of cadena temporal in its maximum degree to death" (Groizard, Vol. 8, p. 45).
Accused-appellant is undoubtedly responsible for the fire that occurred in the wee hours of 18 September 1998
that razed to the ground the Cimagala home and a number of other houses in the vicinity. Still, we believe that the
record shows that the elements discussed by Mr. Justice Carson in his separate concurring opinion in Butardo are
wanting. We are therefore not adequately convinced that imposing the exceptionally severe penalty of reclusion
perpetua is proper in the case at bar.

First. There appears to be no reckless disregard for human lives indicative of a cold, calculating, wicked and
perverse intention to burn the Cimagala home. The action of accused-appellant was the result of a lovers' tiff
between him and Honey over their son, Otoy, and concerning the future of their unbridled relationship. His
spontaneous, albeit criminal, act was carried out without any intention to exterminate human lives. His purpose in
going to Davao was to convince his lover to move back with him to Manila and bringing along their son Otoy.

Second. Neither was there any reckless disregard for the rights of the neighboring property owners. The criminal
act of burning the Cimagala home was carried out by accused-appellant in a diminished emotional state, which
mitigates his criminal liability to a lesser degree of criminality.

Third. The testimony of Honey clearly points to accused-appellant as the perpetrator of the crime. However, the
conduct of accused-appellant after he consummated the crime, i.e., when he set fire to the clothes of Honey, is
material in determining the severity of the penalty to be imposed. After his impulsive act of setting fire to both the
plastic partition of the room and Honey's clothes, he attempted to mend his ways immediately by attempting to
put out the flames although it was too late. His act of burning Honey's clothes set in motion a chain of events that
spun out of control and led to the blaze that destroyed houses in its path. However, despite the mayhem caused
by accused-appellant, he never fled the scene of the crime; in fact, he watched helplessly as the flames consumed
the Cimagala home and the neighboring houses. He did not resist the police authorities when he was invited for
questioning at the police station to shed light on the incident.

Thus, applying Mr. Justice Carson's exceptional severity standard as regards the imposition of penalties for the
crime of Arson, the degree of criminality involved in the accused-appellant's act is lessened by the fact that he
acted on an impulse that diminished his reasoning faculties, thus mitigating the punishment to be imposed. The
proper penalty to be imposed should therefore take into consideration the analogous mitigating circumstance to
passion and obfuscation under Art. 13, par. 10, as discussed above, in relation to Art. 64, par. 2, of The Revised
Penal Code.[26]

Under Sec. 3, par. 2, of PD 1613, in relation to Art. 64, par. 2, of The Revised Penal Code, the imposable penalty for
simple arson is reclusion temporal to reclusion perpetua the range of which is twelve (12) years and one (1) day
to reclusion perpetua. Applying the Indeterminate Sentence Law, the penalty next lower in degree to the
imposable penalty is prision mayor the range of which is six (6) years and one (1) day to twelve (12) years in any of
its periods. Under the circumstances, it is believed that an indeterminate prison term of six (6) years four (4)
months and twenty (20) days of prision mayor minimum as minimum to fourteen (14) years two (2) months and
ten (10) days of the minimum of reclusion temporal to reclusion perpetua as maximum may be imposed on the
accused.

As to the award of damages, this Court has consistently held that proof is required to determine the reasonable
amount of damages that may be awarded to the victims of conflagration. As a rule, therefore, actual or
compensatory damages must be proved and not merely alleged. We believe that the records do not adequately
reflect any concrete basis for the award of actual damages to the offended parties. The court a quo granted the
award solely on the bare assertions of the complaining witnesses. Moral damages cannot be awarded in this case,
as there is no evidentiary basis to justify it. However, accused-appellant's civil liability is beyond cavil; what needs
to be resolved is the amount of indemnity he should pay to the owners of the burned houses for the damage
caused. In lieu thereof, this Court may award temperate or moderate damages to the victims of the conflagration
in accordance with Art. 2224 of the Civil Code. Indeed, the records evince that the victims suffered some pecuniary
loss although the amount thereof cannot be proved with certainty. Consequently, temperate damages in the
amount of P250,000.00 which is considered reasonable under the circumstances should be awarded to each of the
complaining witnesses or their heirs as the case may be.

Exemplary or corrective damages should likewise be awarded as a way to correct future conduct of this nature and
preserve the public good. Such damages are designed to reshape behavior that is socially deleterious in its
consequences.[27] Hence, exemplary or corrective damages in the amount of P50,000.00 for each of the above-
mentioned complaining witnesses or their heirs is fair and just under the premises.

It must be noted that accused-appellant became an unwitting victim of his own extra-marital indiscretions. His
flawed emotional disposition coupled with a lapse in judgment became his own undoing as he now languishes in
jail for choosing the road to perdition. Although he has no one to blame but himself for his vicissitudes, we believe
that the lessons to be learned from this sad and miserable chapter of his life are more than adequate from which
he can gain insight and wisdom, while he sits patiently in his prison cell waiting for the day when he can once again
breathe the invigorating air of freedom.

WHEREFORE, Decision of the Regional Trial Court of Davao City finding accused-appellant Nestor G. Soriano guilty
of Destructive Arson is MODIFIED to Simple Arson under Sec. 3, par. 2, of PD 1613, and the penalty imposed on
him REDUCED to an indeterminate prison term of six (6) years four (4) months and twenty (20) days of prision
mayor minimum as minimum to fourteen (14) years two (2) months and ten (10) days of reclusion
temporal minimum as maximum. Temperate damages in the amount of P250,000.00 and exemplary damages of
P50,000.00 are AWARDED to each of complaining witnesses Fructuosa L. Jambo, Simplicio B. Cabrera, Francisco
Clerigo, Orlando Braña and Oscar T. Cimagala. Costs against accused-appellant.

SO ORDERED.

FIRST DIVISION
 [ G.R. No. 93485, June 27, 1994 ]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELEE, VS. PEDRO CEDENIO Y RASONABLE, FELIPE ANTIPOLO Y MISA,
AND JURITO AMARGA Y BAHI-AN, ACCUSED-APPELLANTS.

DECISION

BELLOSILLO, J.:

The silence of the slumbering night was suddenly shattered by wailing cries for help. A sheet of fire raged, its
crimson brightness overwhelming the velvet darkness enshrouding the sleepy barangay as it enveloped the lair of
a mandadaut,[1]the flames only fading away with the first blush of dawn. As the smoke thinned and the ashes
settled, the debris yielded five (5) fatalities among them a 22-day old female infant. Unlike the other victims, she
did not sustain any stab or hack wound. She could have died of suffocation if not of burning.

Bonifacio Palomas recounts that on 26 November 1986, at about ten-thirty in the evening, he was roused from his
sleep by bangs and slams and what sounded like women's desperate cries for help coming from the direction of a
neighbor's house some thirty (30) meters away. It was Hilario Dorio's house on fire. Peeping through his window,
Palomas saw around seven (7) persons, among them appellants Pedro Cedenio, Jurito Amarga and Felipe Antipolo,
emerge from the house of Dorio that was afire. The blaze was so bright he was able to recognize them. They were
wielding unsheathed bolos. Afraid, Palomas remained home. The following morning, he narrated to Romeo, son of
Hilario Dorio, what he witnessed the night before. Then he went with the younger Dorio to the rubble and saw the
charred bodies of his father, Hilario Dorio, his mother Flora, his sister Maria, his niece Dioscora, and his maternal
grandmother Nicanora Tabanao, said to be a family of sorcerers in the village. [2]

Policarpio Apostadero was resting at around ten-thirty that fateful evening when he heard dogs barking. Thinking
that a carabao may have gone astray, he went out of his house and headed for the cornfield. On his way, he
noticed some thirty (30) meters away that the house of Hilario Dorio was on fire. From where he stood, he also
saw people running out of the burning house. As the fierce fire illumed the surroundings, he recognized three (3)
of them as his neighbors Pedro Cedenio, Jurito Amarga and Felipe Antipolo. When they drew nearer, he saw them
holding bolos stained with blood so he retreated home. The next morning, he went to the burned house, joined
the people already milling around, and saw the seared bodies of the five (5) members of the Dorio household. [3]

Albino Calunod, Sr., Barangay Captain of Gandingan, Pangantucan, Bukidnon, also narrated that on 27 November
1986, at around seven o'clock in the morning, he was informed by Cristituto Gajo that the Dorio residence was
gutted by fire the night before and that five (5) members of the Dorio family then occupying the house were
burned to death. He thus proceeded to the scene and found the house razed to the ground. The five (5) bodies
retrieved from the site were those of Hilario Dorio with wounds on the head and chest, Flora Dorio with a wound
on the leg and head almost severed; Maria Dorio with wounds in the neck and left nipple; Nicanora Tabanao with a
wound in the stomach; and, infant Dioscora Dorio with no wounds at all but charred to the bone. [4]

Perfecto Antifuesto implicated Pedro Cedenio to the heinous crime. Antifuesto said that on 26 November 1986, at
around seven o'clock in the evening, he was awakened by Cedenio who borrowed his bolo. At around three o'clock
the following morning, Pito Panla-an woke him up to return the bolo earlier borrowed by Cedenio. It was placed in
its scabbard and left leaning against the wall below the window. When Panla-an left, Antifuesto got his bolo and
found bloodstains on its handle. Upon unsheathing it, he discovered fresh blood on its blade. Thirty (30) minutes
later, Cedenio arrived and appeased him, "x x x do not worry, if this incident reaches the court I will answer (for)
everything."[5]

Although it appears that around nine (9) persons were involved in the commission of the felony, [6] only three (3)
were convicted by the trial court.[7] Thus on 16 March 1990, it found Pedro Cedenio, Felipe Antipolo and Jurito
Amarga guilty of "Arson with Multiple Murder as defined and penalized under Section 5 of Presidential Decree No.
1613 (amending the law on Arson)"[8] and sentenced them toreclusion perpetua. On 4 April 1990, they filed their
notice of appeal.

Appellants now argue that there is no direct and positive evidence showing that they killed the victims and burned
their house. The fact that prosecution witnesses saw them coming out of the burning house cannot by itself
sustain the conviction as this lone circumstance is capable of several interpretations. If witnesses indeed saw them
there, that must be the time when they (appellants) were trying to save the burning house and its occupants. They
likewise contend that the testimonies of the prosecution witnesses are contrary to human experience and should
not inspire credence. Thus the claim of witness Antifuesto that his bolo was borrowed and later returned with
bloodstains is highly improbable for it is unnatural for criminals to openly bare the instruments used in
perpetrating a crime.

Finally, appellants maintain that their denial and alibi should prevail over the insufficient evidence of the
prosecution. In asserting their innocence, they allege that they were in the area because of their moral obligation
to save life and property. Hence, appellant Cedenio claimed that he cut up banana trunks and hurled them into the
fire while appellant Antipolo gathered soil and threw it into the blaze. While witnesses might have indeed seen
them (appellants) coming out of the burning house, that was probably after they (appellants) checked on and tried
to save the occupants of the house.

We are far from persuaded. While we cannot affirm the findings of the trial court that accused-appellants are
guilty of "Arson with Multiple Murder as defined and penalized under Section 5 of Presidential Decree No. 1613"
as there is no such offense, we nevertheless find them guilty of as many crimes as are alleged in the Information
and proven by the evidence.

It is settled that there is no complex crime of arson with homicide. The late Mr. Chief Justice Ramon C. Aquino cites
Groizard -

x x x when fire is used with the intent to kill a particular person who may be in a house and that objective is
attained by burning the house, the crime is murder only. When the Penal Code declares that killing committed by
means of fire is murder, it intends that fire should be purposely adopted as a means to that end. There can be no
murder without a design to take life. In other words, if the main object of the offender is to kill by means of fire,
the offense is murder. But if the main objective is the burning of the building, the resulting homicide may be
absorbed by the crime of arson.[9]

x x x in the classification of crimes committed by fire, attention must be given to the intention of the author. When
fire is used with intent to kill a x x x person who may be in shelter, and that objective is secured, the crime is x x x
murder. Murder or homicide in a juridical sense would exist if the killing were the objective of the malefactor and
the burning of the building was resorted only as the means of accomplishing his purpose. The rule is otherwise
when arson is itself the end and death is a mere consequence. The crime in such a case would be arson only,
absorbing the homicide.[10]

Except for the imposable penalty, the rule has not changed. Accordingly, if death results by reason or on the
occasion of arson, the crime is simply arson although the imposable penalty as provided in Sec. 5 of P.D. No. 1613,
which expressly repealed Arts. 320 to 326-B of The Revised Penal Code, is now reclusion perpetua to death. If the
objective of the offender is to kill and arson is resorted to as the means to accomplish the crime, the offender can
be charged with murder only. But if the objective is to kill - and in fact the offender has already done so - and arson
is resorted to as a means to cover up the killing, the offender may be convicted of two separate crimes of either
homicide or murder, and arson.

Consequently, in People v. Paterno[11] where the defendants killed a Japanese spy and his wife, and thereafter set
the victims' house afire with their lifeless bodies inside and their three-day old infant who perished in the fire, we
found the accused guilty of murder for the killing and of arson for burning the house with the resulting death to
the infant. In People v. Basay[12] we said that where the house was burned to conceal the stabbing and hacking,
separate crimes of murder and arson were committed.
The Information in this case however, although erroneously charging the crime of "Arson with Multiple Murder,"
clearly charges appellants with six (6) distinct criminal acts. It accuses them of "wilfully, unlawfully and criminally
attack(ing), assault(ing) and stab(bing) Hilario G. Dorio, Nicanora G. Tabanao, Maria T. Dorio, Dioscora T. Dorio and
Flora T. Dorio, inflicting on their persons multiple mortal wounds x x x x (and) set(ting) on fire and burn(ing) the
house of the victims x x x x"[13] Since appellants failed to move to quash the information on the ground of
multiplicity of charges or object thereto at any other time, the defect has been waived, and thus the trial court
may validly render judgment against them for as many crimes as were alleged.[14] In order to sustain a conviction
for as many offenses as are alleged, it is elementary that all the allegations must be proven with moral certainty.
Hence, considering that the Information alleges that appellants burned the house of the victims and killed them
with treachery and (evident) premeditation, both the arson and the multiple murder must be proven beyond
reasonable doubt.

We accord credence to the testimonies of the prosecution witnesses. We see no reason to depart from the
conclusion of the trial court that it was "morally convinced that the three accused are all guilty x x x x [15] The
court a quo had the opportunity to observe the witnesses thus its findings are given great weight and respect.

Palomas, Apostadero and Antifuesto are disinterested witnesses and there is not a shiver of evidence to indicate
that they are suborned witnesses. In fact, the records show that witness Antifuesto even lent his bolo to appellant
Cedenio so that the former could not have had a grudge against the latter, otherwise, he would not have lent his
bolo.[16] Absent the most compelling reason or motive, it is inconceivable why the prosecution witnesses would
openly and publicly lie or concoct a story which would send three innocent men to jail. [17] Where the defense failed
to show any evil or improper motive on the part of prosecution witnesses, the presumption is that their
testimonies are true and thus entitled to full faith and credence. [18]

While the prosecution witnesses did not see the actual killing of the victims and the burning of the house, we have
repeatedly ruled that guilt may be established through circumstantial evidence provided that (1) there is more
than one circumstance; (2) the facts from which the inferences are derived are proven; and, (3) the combination of
all the circumstances is such as to produce conviction beyond reasonable doubt. [19] Thus in People v.
Adriano[20] and People v. Galendez[21] we ruled that there can be a conviction based on circumstantial evidence
when the circumstances proven form an unbroken chain which leads to a fair and reasonable conclusion
pinpointing the accused as the perpetrator of the crime.

This is another lucid illustration of a case where a conviction can be sustained on the basis of circumstantial
evidence. First, appellant Cedenio borrowed the bolo of witness Antifuesto at around seven o'clock in the evening.
Second, Cedenio together with appellants Antipolo and Amarga were positively identified as brandishing their
bloodstained bolos while rushing out of the victims' burning house around ten-thirty that same evening. Third,
Antifuesto's bolo was returned to him at around three o'clock the following morning after appellants were seen
outside the victims' burning house. Fourth, the bolo had bloodstains when it was returned. Fifth, Cedenio called on
Antifuesto at three-thirty that same morning to appease the latter and assure him not to worry because "x x x if
this incident reaches the court, I will answer (for) everything."[22] Sixth, when retrieved from the burned house, the
bodies of the victims bore stab and hack wounds. For sure, these circumstances "form an unbroken chain which
leads to a fair and reasonable conclusion pinpointing the accused as the perpetrators of the crime." [23]

We disagree with appellants' submission that the testimony of prosecution witness Antifuesto is not in accord with
human nature. On the contrary, his testimony that the bolo was returned to him with bloodstains is worthy of
belief. Appellants never thought that Antifuesto would testify against them. Thus, appellant Cedenio borrowed
Antifuesto's bolo and after its return even mollified him.

In fine, we believe that when appellants were seen in the vicinity of the burning house, they were not there to save
lives and property but rather to escape from the locus criminis and avoid being made to answer for the
consequences of their wicked act. In other words, they were not there to save the lives and valuables of the
victims but to save their own. We are convinced that appellants conspired to inflict fatal blows on the victims
which cost their lives and thereafter set their house on fire to conceal the dastardly deed. [24] Conspiracy, as we
said, may be inferred from the acts of the accused when such acts point to a joint purpose or design.[25]
From the evidence adduced, it is evident that after the victims were hacked and stabbed to death, appellants set
the house afire to hide their gruesome act. This is the only logical conclusion for the burning of the house. For,
appellants and some six (6) others, all bolo-wielding, have already inflicted fatal wounds on the victims, save for
the 22-day old infant. If their objective was merely to kill the victims then there would be no reason for them to
burn the victims' abode. On the other hand, if their objective was merely arson, they would not have attacked the
victims with their bolos.

We however cannot consider the qualifying circumstance of treachery. For treachery to be appreciated, there
must be proof that at the time of the attack, the victims were not in a position to defend themselves and that the
offenders consciously and deliberately adopted particular means, method or form of attack which they employed
to ensure the accomplishment of their purpose with impunity. [26] There is no proof of such fact in the instant case;
neither is there any testimony on how the attack was actually carried out. Where no particulars are known as to
the manner in which the aggression was made or how the act which resulted in the death of the victims began and
developed, it can in no way be established from mere suppositions that the killing was perpetrated by
treachery.[27] For, the rule is settled that treachery cannot be presumed; it must be proved by clear and convincing
evidence as conclusively as the killing itself.[28] Hence, when the manner of the attack is not proven, the accused
should be given the benefit of the doubt and the crime should be considered homicide only, [29] absent any other
circumstance which would qualify the killing.

Nevertheless, we qualify the killing to murder on account of evident premeditation. For evident premeditation to
be considered, it must affirmatively appear from the overt acts of the accused that they definitely resolved to
commit the offense; that they coolly and dispassionately reflected on the means of carrying their resolution into
execution and on the consequences of their criminal design; and, that an appreciable length of time elapsed as to
expect an aroused conscience to otherwise relent and desist from the accomplishment of the intended
crime.[30] These, the prosecution established.

The fact alone that appellants burned the victims' house after inflicting fatal wounds on them already suggests that
they clung to their determination to commit the crime. The circumstance that appellant Cedenio borrowed the
bolo of witness Antifuesto and later placated the latter when his bolo was returned to him already bloodstained
strongly indicates that appellants pondered on the means of executing the crime and on the consequences of their
criminal design. Since appellant Cedenio borrowed the bolo at around seven o'clock in the evening and the crime
was committed around ten o'clock that same evening, certainly, there was sufficient interval of time within which
to reflect upon the consequences of the crime they planned to commit.

The death certificates of victims Hilario Dorio, Flora Dorio, Maria Dorio and Nicanora Tabanao state as cause of
death "incised wounds" which could definitely be caused by a bolo, while the infant's death was due to "burns."
Hence, appellants should be held responsible only for the murder of the four (4) victims who sustained fatal hack
and stab wounds. They cannot be convicted of homicide for the death of the infant who died presumably of
suffocation or incineration but of arson resulting in death, as defined in Sec. 5 of P.D. No. 1613.

Considering that the prosecution was able to show with moral certainty that the killing of the four (4) victims was
attended with evident premeditation and the burning was done to disguise the murder, appellants are guilty of
arson and four (4) counts of murder, each count aggravated by dwelling which, while not alleged in the
Information, was sufficiently proven during the trial.

The penalty prescribed by law for murder if committed with evident premeditation is reclusion temporal in its
maximum period to death,[31] while for arson where death results, it is reclusion perpetua to death.[32] Since the
murder was attended by the aggravating circumstance of dwelling, with no mitigating circumstance, the imposable
penalty against appellants is death for each of the four (4) counts of murder they committed. However,
considering that the death penalty was proscribed at the time appellants committed the crime, their sentence
should be reduced to four (4) terms of reclusion perpetua. For the arson where death resulted, appellants should
be sentenced to a separate term of reclusion perpetua.
Furthermore, it appearing from the records that the heirs of the deceased did not waive nor reserve their right to
institute a civil action, nor did they institute a civil action prior to the criminal action, the civil action for recovery of
civil liability is impliedly instituted with the instant criminal action.[33] Consistently therefore with prevailing
jurisprudence, appellants are jointly and severally liable to the heirs of the victims in the amount of P50,000.00 for
every death even without proof of pecuniary loss.

WHEREFORE, the Decision of the trial court is MODIFIED. Appellants PEDRO CEDENIO, FELIPE ANTIPOLO and
JURITO AMARGA are found guilty beyond reasonable doubt of four (4) counts of murder and another crime of
arson. Consequently, appellants are sentenced each to four (4) terms of reclusion perpetua for the murder of
Hilario Dorio, Flora Dorio, Maria Dorio and Nicanora Tabanao, and another reclusion perpetua for arson for the
burning of the house which resulted in the death of infant Dioscora Dorio, to be served successively in accordance
with Art. 70 of The Revised Penal Code. In addition, appellants are jointly and severally held liable to the heirs in
the amount of P50,000.00 for the death of each victim.

SO ORDERED.

FIRST DIVISION

[ G.R. No. 171222, February 18, 2015 ]

PEOPLE OF THE PHILIPPINES, PETITIONER, VS. LTSG. DOMINADOR BAYABOS, LTJG. MANNY G. FERRER, LTJG.
RONALD G. MAGSINO, LTJG. GERRY P. DOCTOR, ENS. DOMINADOR B. OPERIO, JR., AND THE HON.
SANDIGANBAYAN, RESPONDENTS.

[G.R. No. 174786]

PEOPLE OF THE PHILIPPINES, PETITIONER, VS. RADM VIRGINIO R. ARIS, LTJG. KRUZALDO G. MABBORANG, ENS.
DENNIS S. VELASCO, AND THE HON. SANDIGANBAYAN, RESPONDENTS.

DECISION

SERENO, C.J.:

While this Court has recently faced questions on the criminal liability of fraternity members for hazing, this case
presents novel questions on the extent of liability of schools and school authorities under Republic Act No. 8049,
or the Anti-Hazing Law.

The responsibility given to an academic institution for the welfare of its students has been characterized by law
and judicial doctrine as a form of special parental authority and responsibility.[1] This responsibility has been
amplified by the enactment of the Anti-Hazing Law, in that the failure by school authorities to take any action to
prevent the offenses as provided by the law exposes them to criminal liability as accomplices in the criminal acts.
Thus, the institution and its officers cannot stand idly by in the face of patently criminal acts committed within
their sphere of responsibility. They bear the commensurate duty to ensure that the crimes covered by the Anti-
Hazing Law are not committed.

It was within this legal framework that the school authorities of the Philippine Merchant Marine Academy (PMMA)
were criminally charged before the Sandiganbayan as accomplices to hazing under the Anti-Hazing Law. Before
they were arraigned, the Sandiganbayan quashed[2] the Information against them on the basis of the dismissal of
the criminal case against the principal accused and, the failure to include in the Information the material
averments required by the Anti-Hazing Law.
Consequently, this Petition was filed before this Court questioning the Sandiganbayan's quashal of the
Information.

The Case Background

Fernando C. Balidoy, Jr. (Balidoy) was admitted as a probationary midshipman at the PMMA.[3] In order to reach
active status, all new entrants were required to successfully complete the mandatory "Indoctrination and
Orientation Period,"[4] which was set from 2 May to 1 June 2001.[5] Balidoy died on 3 May 2001.[6]

The National Bureau of Investigation (NBI) probed the death of Balidoy. After months of investigation, it forwarded
its findings[7] to the provincial prosecutor of Zambales for the preliminary investigation and possible criminal
prosecution of those involved in the orientation and indoctrination of the PMMA Class of 2005.[8] Subsequently,
the Assistant Provincial Prosecutor of Zambales issued a Resolution [9]finding probable cause to charge the
following as principals to the crime of hazing: Aldwin Alvarez (Alvarez), Leotharius C. Montez (Montez), Rudence G.
Reyes (Reyes), and Jed Nicholas S. Simpas (Simpas) collectively, Alvarez et al. A criminal case against Alvarez et
al.was then filed with the Regional Trial Court of Iba, Zambales (RTC Zambales).

The Assistant Provincial Prosecutor also endorsed to the Deputy Ombudsman for the Military the finding of
probable cause to charge the following school authorities as accomplices to hazing: Rear Admiral (RADM) Virginio
R. Aris (Aris), Lieutenant Senior Grade (LTSG.) Dominador D. Bayabos (Bayabos), Lieutenant Junior Grade (LTJG.)
Gerry P. Doctor (Doctor), LTJG. Manny Ferrer (Ferrer), LTJG. Kruzaldo Mabborang (Mabborang), LTJG. Ronald G.
Magsino (Magsino), Ensign (ENS.) Dennis Velasco (Velasco), and ENS. Dominador Operio (Operio) collectively,
respondents. The Ombudsman Investigator agreed with the findings of the Assistant Provincial Prosecutor. The
matter was thus ordered re-docketed for the purpose of conducting the proper administrative proceedings against
respondents for grave misconduct and abuse of authority.[10] The Office of the Special Prosecutor eventually filed
with the Sandiganbayan a criminal case charging respondents as accomplices to the crime of hazing. [11]

Meanwhile, the RTC Zambales issued an Order dismissing the Information against the principal accused, Alvarez et
al.[12] The Order was later entered in the Book of Entries of Judgment.

Bayabos, Ferrer, Magsino, Doctor, and Operio (collectively, Bayabos et al.) filed a Motion to Quash the
Information.[13] They argued that the Information did not contain all the essential elements of the offense. They
also pointed out that there was no allegation that the purported act had been made a prerequisite for admission
to the PMMA, especially considering that the victim had already been accepted in the academy. Moreover, they
stressed that there was no averment in the Information that the PMMA was a fraternity, a sorority, or an
organization. Also underscored was the absence in the Information of any assertion that the alleged hazing was
not part of the "physical, mental, and psychological testing and training procedure and practices to determine and
enhance the physical, mental and psychological fitness of prospective regular members." Furthermore, they
emphasized that there was no allegation that they were given prior written notice of the hazing and that they had
permitted the activity.

As a final point, Bayabos et al. argued that the case against the principal accused had already been dismissed with
finality by the RTC. There being no more principals with whom they could have cooperated in the execution of the
offense, they asserted that the case against them must be dismissed.

The Special Prosecutor opposed[14] the motion of Bayabos et al. He insisted that the Information alleged the
material facts that would sufficiently establish the presence of the essential ingredients of the crime of accomplice
to hazing. He also stressed that there was nothing in the law requiring that the principals must be prosecuted first
before a case could be filed against the accomplices. The Comment/Opposition of the Special Prosecutor was,
however, silent on the issue of whether the Information contained an allegation that the supposed hazing had
been made a prerequisite for admission to the PMMA, and whether the academy was considered an
"organization" within the meaning of the Anti-Hazing Law.

Six days before Bayabos et al. were set to be arraigned,[15] the Sandiganbayan issued the assailed Resolution (SB
Resolution I) quashing the Information and dismissing the criminal case against them. According to the court, the
fact that the charge against the principal accused Alvarez et al. was dismissed with finality favorably carried with it
the indictment against those charged as accomplices, whose criminal responsibility was subordinate to that of the
former. It stressed that before there can be an accomplice, there must be a principal by direct participation, the
latter being the originator of the criminal design. In this case, as there were no principal perpetrators to speak of,
necessarily, there was no one else with whom they could have cooperated in the execution of the crime of hazing.
In view of the dismissal of the case against the principals, the court ruled that the Information charging Bayabos et
al. as accomplices could no longer stand on its own.

In any event, the Sandiganbayan found that the Information charged no offense, and that the allegations therein
were mere conclusions of law. It also stressed that there was no averment that the alleged hazing was not part of
the "physical, mental and psychological testing and training procedure and practices to determine and enhance
the physical, mental and psychological fitness of prospective regular members" of the Armed Forces of the
Philippines (AFP) and the Philippine National Police (PNP), pursuant to Section 1 of the law. [16] It must be noted,
though, that the Sandiganbayan did not make any categorical determination that the PMMA was considered an
"organization" within the meaning of the Anti-Hazing Law.

Six months after the Sandiganbayan issued its Resolution dismissing the criminal case against Bayabos et al., the
accused Velasco surrendered and then filed his own Motion to Quash, [17] adopting the grounds raised by that
court. His arraignment was set on 14 August 2006.[18] However, on 3 August 2006, the Sandiganbayan issued
another Resolution (SB Resolution II) dismissing the case against him. According to the court, since Velasco was
similarly situated as Bayabos et al., the Information against him must likewise be quashed in light of the reasoning
laid out in SB Resolution I. In the same Resolution, the Sandiganbayan ex proprio motu dismissed the case against
Aris and Mabborang (collectively, Velasco et al.), explaining that they, too, had been charged under the same
Information for the same offense.[19] It is unclear from the records[20] whether the accused Aris and Mabborang
surrendered or were arrested, or whether the Order of Arrest [21] was recalled prior to the dismissal of the case.

Aggrieved, the Office of the Ombudsman, through the Special Prosecutor, filed with this Court on 13 March 2006 a
Petition assailing SB Resolution I and, on 16 October 2006, another Petition challenging SB Resolution II.

The Issues

The Special Prosecutor asks this Court to address a number of legal issues. After a thorough evaluation of the
Petitions, however, we cull the threshold issues needing to be addressed by this Court as follows:

I. Whether the prosecution of respondents for the crime of accomplice to hazing can proceed in spite of the
dismissal with finality of the case against the principal accused

II. Whether the Information filed against respondents contains all the material averments for the
prosecution of the crime of accomplice to hazing under the Anti-Hazing Law

Our Ruling

With regard to the first issue, we agree with petitioner that the Sandiganbayan erred when it dismissed outright
the case against respondents, on the sole ground that the case against the purported principals had already been
dismissed. It is a settled rule that the case against those charged as accomplices is not ipso facto dismissed in the
absence of trial of the purported principals; the dismissal of the case against the latter; or even the latter's
acquittal, especially when the occurrence of the crime has in fact been established.[22] In People v. Rafael,[23] the
Supreme Court En Banc reasoned thus: "The corresponding responsibilities of the principal, accomplice, and
accessory are distinct from each other. As long as the commission of the offense can be duly established in
evidence, the determination of the liability of the accomplice or accessory can proceed independently of that of
the principal." Accordingly, so long as the commission of the crime can be duly proven, the trial of those charged as
accomplices to determine their criminal liability can proceed independently of that of the alleged principal. [24]

We note in the present case that Bayabos et al. merely presented the Order of Entry of Judgment[25] dismissing the
case against Alvarez et al. Nowhere is it mentioned in the order that the case was dismissed against the alleged
principals, because no crime had been committed. In fact, it does not cite the trial court's reason for dismissing the
case. Hence, the Sandiganbayan committed an error when it simply relied on the Order of Entry of Judgment
without so much as scrutinizing the reason for the dismissal of the case against the purported principals.

Nonetheless, as will be discussed below, we affirm the quashal of the Information against respondents.

Section 14, Article III of the Constitution, recognizes the right of the accused to be informed of the nature and
cause of the accusation against them. As a manifestation of this constitutional right, the Rules of Court requires
that the information charging persons with an offense be "sufficient." One of the key components of a "sufficient
information" is the statement of the acts or omissions constituting the offense charged, subject of the
complaint.[26] The information must also be crafted in a language ordinary and concise enough to enable persons
of common understanding to know the offense being charged against them. [27] This approach is intended to allow
them to suitably prepare for their defense, as they are presumed to have no independent knowledge of the facts
constituting the offense they have purportedly committed.[28] The information need not be in the same kind of
language used in the law relied upon.[29]

At any time before entering a plea, an accused may assail the information filed with the court based on the
grounds enumerated in Section 3, Rule 117 of the Rules of Court, one of which is the claim that the facts charged
do not constitute an offense. In assessing whether an information must be quashed on that ground, the basic
test[30] is to determine if the facts averred would establish the presence of the essential elements of the crime as
defined in the law. The information is examined without consideration of the truth or veracity of the claims
therein, as these are more properly proven or controverted during the trial. In the appraisal of the information,
matters aliunde are not taken into account.

We quote the pertinent provision of the Anti-Hazing Law as follows:

Section 1. Hazing, as used in this Act, is an initiation rite or practice as a prerequisite for admission into
membership in a fraternity, sorority or organization by placing the recruit, neophyte or applicant in some
embarrassing or humiliating situations such as forcing him to do menial, silly, foolish and other similar tasks or
activities or otherwise subjecting him to physical or psychological suffering or injury.

The term "organization" shall include any club or the Armed Forces of the Philippines, Philippine National Police,
Philippine Military Academy, or officer and cadet corp of the Citizen's Military Training and Citizen's Army
Training. The physical, mental and psychological testing and training procedure and practices to determine and
enhance the physical, mental and psychological fitness of prospective regular members of the Armed Forces of the
Philippines and the Philippine National Police as approved by the Secretary of National Defense and the National
Police Commission duly recommended by the Chief of Staff, Armed Forces of the Philippines and the Director
General of the Philippine National Police shall not be considered as hazing for the purposes of this Act.

Sec. 4. x x x x.

The school authorities including faculty members who consent to the hazing or who have actual knowledge
thereof, but failed to take any action to prevent the same from occurring shall be punished as accomplices for
the acts of hazing committed by the perpetrators. (Emphasis supplied)
The crime of hazing is thus committed when the following essential elements are established: (1) a person is
placed in some embarrassing or humiliating situation or subjected to physical or psychological suffering or injury;
and (2) these acts were employed as a prerequisite for the person's admission or entry into an organization. In the
crime of hazing, the crucial ingredient distinguishing it from the crimes against persons defined under Title Eight of
the Revised Penal Code is the infliction by a person of physical or psychological suffering on another in furtherance
of the latter's admission or entry into an organization.

In the case of school authorities and faculty members who have had no direct participation in the act, they may
nonetheless be charged as accomplices if it is shown that (1) hazing, as established by the above elements,
occurred; (2) the accused are school authorities or faculty members; and (3) they consented to or failed to take
preventive action against hazing in spite actual knowledge thereof.

First, we reject the contention of respondents that PMMA should not be considered an organization. Under the
Anti-Hazing Law, the breadth of the term organization includes but is not limited to groups, teams, fraternities,
sororities, citizen army training corps, educational institutions, clubs, societies, cooperatives, companies,
partnerships, corporations, the PNP, and the AFP.[31] Attached to the Department of Transportation and
Communications,[32] the PMMA is a government-owned educational institution[33] established for the primary
purpose of producing efficient and well-trained merchant marine officers.[34] Clearly, it is included in the
term organizationwithin the meaning of the law.

We also disagree with the Sandiganbayan ruling that the quashal of the Information was warranted for failure to
allege that the purported acts were not covered by the exemption relating to the duly recommended and
approved "testing and training procedure and practices" for prospective regular members of the AFP and the PNP.
This exemption is an affirmative defense in, not an essential element of, the crime of accomplice to hazing. It is an
assertion that must be properly claimed by the accused, not by the prosecution. The reason for this rule is that the
accused carry the burden of proof in establishing by clear and convincing evidence that they have satisfied the
requirements thereof.[35] Thus, the prosecution's failure to point out in the Information that the exception is
inapplicable would not justify the quashal of that Information.

Nevertheless, we find albeit for a different reason that the Motion to Quash must be granted, as the Information
does not include all the material facts constituting the crime of accomplice to hazing. The Information charging
respondents reads as follows:

The undersigned Assistant Special Prosecutor, Office of the Special Prosecutor, hereby accuses [RADM] Virginio R.
Aris, [LTSG.] Dominador D. BAYABOS, [LTJG.] Manny G. Ferrer, [LTJG.] Ronald G. Magsino, [LTJG.] Kruzaldo G.
Mabborang, [LTJG.] Gerry P. Doctor, [ENS.] Dominador B. Operio, Jr., and [ENS.] Dennis S. Velasco, as accomplices
for Violation of R.A. 8049 (Anti-Hazing Law), committed as follows:

That during the period from the 2nd of May 2001 up to the 3rd of May 2001, inside the campus of the Philippine
Merchant Marine Academy (PMMA), in the Municipality of San Narciso, Province of Zambales, Philippines, and
within the jurisdiction of this Honorable Court accused RADM Virginio R. Aris, President of PMMA with [Salary
Grade (SG) 29]; LTSG. Dominador D. BAYABOS, Commandant of the Cadets; (LTJG.) Manny G. Ferrer, 1st Batallion
Officer; LTJG. Ronald G. Magsino, Security Officer; LTJG. Kruzaldo G. Mabborang, 2 nd Battalion Officer; LTJG. Gerry
P. Doctor, Batl. Mast.; ENS. Dominador B. Operio, Jr., 1st Battalion Company Officer; and ENS. Dennis S. Velasco,
Mess Officer, all public officers, conspiring, confederating and mutually helping one another, committing the
offense in relation to office and while in the performance of their duties as such public officers being the school
authorities and/or faculty members did then and there willfully, unlawfully and criminally, consent or have actual
knowledge of the hazing perpetrated by the principal accused, all First Class Midshipmen, against probationary
midshipman FERNANDO BALIDOy, JR. during the school's Indoctrination and Orientation; and, fail to take any
action to prevent the occurrence of the hazing and the infliction of psychological and physical injuries against said
FERNANDO BALIDOy, JR. thereby causing the instantaneous death of the latter, to the damage and prejudice of the
heirs of said FERNANDO BALIDOy, JR.[36]
As can be gleaned from the above, the indictment merely states that psychological pain and physical injuries were
inflicted on the victim. There is no allegation that the purported acts were employed as a prerequisite for
admission or entry into the organization. Failure to aver this crucial ingredient would prevent the successful
prosecution of the criminal responsibility of the accused, either as principal or as accomplice, for the crime of
hazing. Plain reference to a technical term[37] in this case, hazing is insufficient and incomplete, as it is but a
characterization of the acts allegedly committed and thus a mere conclusion of law. Section 6, Rule 110 of the
Rules of Court, expressly states that the information must include, inter alia, both "the designation of the offense
given by the statute" and "the acts or omissions complained of as constituting the offense." The Special
Prosecutor's belated argument[38] in his Petition before this Court that the successful completion of the
indoctrination and orientation program was used as a prerequisite for continued admission to the academy i.e.,
attainment of active midshipman status does not cure this defect in the Information. Thus, the Information must
be quashed, as the ultimate facts it presents do not constitute the crime of accomplice to hazing.

Finally, we reject the Special Prosecutor's claim that the Sandiganbayan should just have ordered the filing of
another information or the correction of the defect by amendment, instead of dismissing the case
outright.[39] Indeed, Section 4, Rule 117 of the Rules of Court, provides that if a motion to quash is based on the
ground that the facts charged do not constitute an offense, the court shall give the prosecution a chance to correct
the defect by amendment. However, the provision also states that if the prosecution fails to make the
amendment, the motion shall be granted. Here, we point out that the Special Prosecutor insisted in his Comment
on the Motion to Quash[40] that there was no defect in the Information. Neither has he filed a new information
after the motion was sustained, pursuant to Section 5, Rule 117. Thus, the Sandiganbayan was correct in ordering
the quashal of the Information and the eventual dismissal of the case.

This does not mean, however, that the Special Prosecutor is now precluded from filing another information.
Section 6, Rule 117, specifically states that an order sustaining a motion to quash would not bar another
prosecution. That is, of course, unless respondents are able to prove that the criminal action or liability has been
extinguished, or that double jeopardy has already attached.

Given the foregoing, the Court no longer sees the necessity to pass upon the other issues raised by petitioner.

WHEREFORE, the petition for review on certiorari in G.R. No. 171222 is hereby DENIED and the petition
for certiorari in G.R. No. 174786, DISMISSED. The dismissal of the case in Sandiganbayan Resolutions dated 27
January 2006 and 3 August 2006 in Criminal Case No. 28339 are thus AFFIRMED.

SO ORDERED.

SECOND DIVISION

[ G.R. No. 209464, July 01, 2015 ]

DANDY L. DUNGO AND GREGORIO A. SIBAL, JR., PETITIONERS, VS. PEOPLE OF THE PHILIPPINES, RESPONDENT.

DECISION

MENDOZA, J.:

The fraternal contract should not be signed in blood, celebrated with pain, marred by injuries, and perpetrated
through suffering. That is the essence of Republic Act (R.A.) No. 8049 or the Anti-Hazing Law of 1995.

This is a petition for review on certiorari seeking to reverse and set aside the April 26, 2013 Decision [1] and the
October 8, 2013 Resolution[2] of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 05046, which affirmed the
February 23, 2011 Decision[3] of the Regional Trial Court, Branch 36, Calamba City (RTC). The RTC found petitioners
Dandy L. Dungo (Dungo) and Gregorio A. Sibal, Jr. (Sibal), guilty beyond reasonable doubt of the crime of violation
of Section 4 of R.A. No. 8049, and sentenced them to suffer the penalty of reclusion perpetua.

The Facts

On February 1, 2006, the Office of the City Prosecutor of Calamba, Laguna, filed the Information [4] against the
petitioners before the RTC, the accusatory portion of which reads:

That on or about 2:30 in the early morning of January 14, 2006, at Villa Novaliches, Brgy. Pansol, Calamba City,
Province of Laguna and within the jurisdiction of the Honorable Court, the above-named accused, during an
initiation rite and being then members of Alpha Phi Omega fraternity and present thereat, in conspiracy with more
or less twenty other members and officers, whose identity is not yet known, did then and there willfully, unlawfully
and feloniously assault and use personal violence upon one MARLON VILLANUEVA y MEJILLA, a neophyte thereof
and as condition for his admission to the fraternity, thereby subjecting him to physical harm, resulting to his death,
to the damage and prejudice of the heirs of the victim.

CONTRARY TO LAW.
On February 7, 2006, upon motion, the RTC admitted the Amended Information [5] which reads:

That on or about 2:30 in the early morning of January 14, 2006, at Villa Novaliches, Brgy. Pansol, Calamba City,
Province of Laguna and within the jurisdiction of the Honorable Court, the above-name accused, during
a planned initiation rite and being then officers and members of Alpha Phi Omega fraternity and present thereat,
in conspiracy with more or less twenty other members and officers, whose identity is not yet known, did then and
there willfully, unlawfully and feloniously assault and use personal violence upon one MARLON VILLANUEVA y
MEJILLA, a neophyte thereof and as condition for his admission to the fraternity, thereby subjecting him to
physical harm, resulting to his death, to the damage and prejudice of the heirs of the victim.

CONTRARY TO LAW.
On February 7, 2006, Dungo filed a motion to quash for lack of probable cause, [6] but it was denied by the trial
court because the ground cited therein was not provided by law and jurisprudence. When arraigned, the
petitioners pleaded not guilty to the crime charged.[7]Thereafter, trial ensued.

Version of the Prosecution

The prosecution presented twenty (20) witnesses to prove the crime charged. Their testimonies are summarized as
follows:

At around 3:20 o'clock in the morning of January 14, 2006, the victim Marlon Villanueva (Villanueva) was brought
to the emergency room of Dr. Jose P. Rizal District Hospital (JP Rizal Hospital). Dr. Ramon Masilungan (Dr.
Masilungan), who was then the attending physician at the emergency room, observed that Villanueva was
motionless, not breathing and had no heartbeat. Dr. Masilungan tried to revive Villanueva for about 15 to 30
minutes. Villanueva, however, did not respond to the resuscitation and was pronounced dead. Dr. Masilungan
noticed a big contusion hematoma on the left side of the victim's face and several injuries on his arms and legs. He
further attested that Villanueva's face was cyanotic, meaning that blood was no longer running through his body
due to lack of oxygen; and when he pulled down Villanueva's pants, he saw large cpntusions on both legs, which
extended from the upper portion of the thighs, down to the couplexial portion, or back of the knees.

Dr. Masilungan disclosed that two (2) men brought Villanueva to the hospital. The two told him that they found
Villanueva lying motionless on the ground at a store in Brgy. Pansol, Calamba City, and brought him to the hospital.
When he asked them where they came from, one of them answered that they came from Los Baños, Laguna, en
route to San Pablo City. He questioned them on how they found Villanueva, when the latter was in Brgy. Pansol,
Calamba City. One of the men just said that they were headed somewhere else.

Dr. Masilungan reduced his findings in a medico-legal report.[8] Due to the nature, extent and location of the
injuries, he opined that Villanueva was a victim of hazing. He was familiar with hazing injuries because he had
undergone hazing himself when he was a student and also because of his experience in treating victims of hazing
incidents.

Dr. Roy Camarillo (Dr. Camarillo), Medico-Legal Officer of the Philippine National Police Crime Laboratory (PNP-CL)
in Region IV, Camp Vicente Lim, Canlubang, Calamba City, testified that he performed an autopsy on the body of
Villanueva on January 14, 2006 and placed down his findings in an autopsy report. [9] Upon examination of the
body, he found various external injuries in the head, trunk and extremities. There were thirty-three (33) external
injuries, with various severity and nature. He concluded that the cause of death was subdural hemorrhage due to
head injury contusion-hematoma. Based on multiple injuries and contusions on the body, and his previous
examinations of hazing injuries, Dr. Camarillo opined that these injuries were hazing-related. During the autopsy,
he retrieved two (2) matchsticks from the cadaver with the marking of Alpha Phi Omega (APO) Fratemity.[10]

Susan Ignacio (Ignacio) was the owner of the sari-sari store located at Purok 5, Pansol, Calamba City, in front of
Villa Novaliches Resort, which was barely ten steps away. On January 13, 2006, at around 8:30 to 9:00 o'clock in
the evening, she was tending her store when she saw a jeepney with more than twenty (20) persons arrive at the
resort. Ignacio identified Dungo as the person seated beside the driver of the jeepney.[11] She estimated the ages of
these persons in the group to be between 20 to 30 years old. They were in civilian clothes, while the other men
wore white long-sleeved shirts. Before entering the resort, the men and women shook hands and embraced each
other. Three (3) persons, riding on a single motorcycle, also arrived at the resort.

Ignacio saw about fifteen (15) persons gather on top of the terrace of the resort who looked like they were
praying, and then the lights of the resort were turned off. Later that evening, at least three (3) of these persons
went to her store to buy some items. During her testimony, she was shown photographs and she identified
Christopher Braseros and Sibal as two of those who went to her store.[12] It was only on the morning of January 14,
2006 that she learned from the policemen visiting the resort that the deceased person was Villanueva.

Donato Magat (Magat), a tricycle driver plying the route of Pansol, Calamba City, testified that at around 3:00
o'clock in the morning of January 14, 2006, he was waiting for passengers at the comer of Villa Novaliches Resort.
A man approached him and told him that someone inside the resort needed a ride. Magat went to the resort and
asked the two (2) men at the gate who needed a ride. Afterwards, he saw three (3) men in their 20's carrying
another man, who looked very weak, like a vegetable, towards his tricycle. Magat touched the body of the man
being carried and sensed it was cold.

Magat asked the men what happened to their companion. They replied that he had too much to drink. Then they
instructed Magat to go to the nearest hospital. He drove the tricycle to JP Rizal Hospital. Upon their arrival, two of
his passengers brought their unconscious companion inside the emergency room, while their other companion
paid the tricycle fare. Magat then left to go home. Several days after, he learned that the person brought to the
hospital had died.

Abelardo Natividad (Natividad) and Seferino Espina y Jabay (Espina) were the security guards on duty at JP Rizal
Hospital, from 11:00 o'clock in the evening of January 13, 2006 until 7:00 o'clock in the morning of January 14,
2006. In the early morning of January 14, 2006, two men, who signed on the logbook [13] under the names Brandon
Gonzales and Jerico Paril, brought the lifeless body of a person. Pursuant to the standard operating procedure of
the hospital, the security guards did not allow the two men to leave the hospital because they called the police
station so that an investigation could be conducted. Two policemen arrived later at the hospital. During his
testimony, Natividad identified Sibal and Dungo as the two persons who brought Villanueva to the hospital.

PO2 Alaindelon Ignacio (PO2 Ignacio) testified that on January 14, 2006 at around 3:30 o'clock in the early
morning, Natividad called up the PNP Calamba City Station to report that a lifeless body of a man was brought to
JP Rizal Hospital. When PO2 Ignacio arrived, he saw Villanueva's corpse with contusions and bite marks all over his
body. PO2 Ignacio and his policemen companions then brought Dungo and Sibal to the police station. He asked
them about what happened, but they invoked their right to remain silent. The policemen then proceeded to Brgy.
Pansol at around 9:00 o'clock in the morning. After finding Villa Novaliches Resort, they knocked on the door and
the caretaker, Maricel Capillan (Capillan), opened it.

The police asked Capillan if there were University of the Philippines Los Baños (UP Los Baños) students who rented
the resort on the evening of January 13, 2006. Capillan said yes and added that about twenty (20) persons arrived
onboard a jeepney and told her that they would be renting the resort from 9:30 o'clock in the evening up to 7:00
o'clock the following mornmg.

Gay Czarina Sunga (Sunga) was a food technology student at UP Los Baños during the academic year of 2005-2006
and a member of the Symbiosis UPLB Biological Society. Around 3:00 o'clock in the afternoon of January 13, 2006,
she was at their organization's tambayan in the UPLB Biological Sciences Building, when she noticed three (3) men
seated two meters away from her. She identified the two of the three men as Sibal and Dungo. [14] They were
wearing black shirts with the logo of APO. Later at 5:00 o'clock in the afternoon, two more men arrived and, with
their heads bowed, approached the three men. One of thm was Villanueva, who was carrying a 5-gallon water
container. Dungo then stood up and asked Villanueva why the latter did not report to him when he was just at
their tambayan. Dungo then punched Villanueva twice, but the latter just kept quiet with his head bowed. Fifteen
minutes later, all the men left.

Joey Atienza (Atienza) had been a good friend of Villanueva since 2004. They were roommates at the UP Los Baños
Men's Dormitory and housemates at the DPS Apartment in Umali Subdivision, Los Baños, Laguna. According to
Atienza, on January 9, 2006, Villanueva introduced him to Daryl Decena (Decena) as his APO - Theta Chapter
batchmate, who was also to undergo final initiation rites on January 13, 2006.

Severino Cuevas, Director of the Students Affairs at UP Los Baños, testified that Dungo and Sibal were both
members of the APO Fraternity, and that there was no record of any request for initiation or hazing activity filed by
the said fraternity.

McArthur Padua of the Office of the Registrar, UP Los Baños, testified that Villanueva was a B.S. Agricultural
Economics student at the UP Los Baños,[15] as evidenced by his official transcript of record.[16]

Atty. Eleno Peralta and Dina S. Carlos, officers of the Student Disciplinary Tribunal (SDT) of the UP Los Baños,
testified that an administrative disciplinary case was filed on March 31, 2006 against the APO Fraternity regarding
the death of Villanueva. They confirmed that Capilla of Villa Novaliches Resort and Irene Tan (Tan) of APO Sorority
Theta Chapter appeared as witnesses for the complainant.[17]

Roman Miguel De Jesus, UP - Office of the Legal Aid (UP-OLA) supervising student, testified that he met Tan of the
APO Sorority sometime between July and August 2006 in UP Diliman to convince her to testify in the criminal case.
Tan, however, refused because she feared for her safety. She said that after testifying in the SDT hearing, her place
in Imus, Cavite was padlocked and vandalized.

Evelyn Villanueva, mother of victim Villanueva, testified that, as a result of the death of her son, her family
incurred actual damages consisting of medical, burial and funeral expenses in the aggregate amount of
P140,000.00 which were evidenced by receipts.[18] Her husband also incurred travel expenses in the amount of
P7,000.00 in returning to the Philippines to attend his son's wake and burial, as supported by a plane ticket. [19] She
further attested that she experienced mental anguish, sleepless nights, substantial weight loss, and strained family
relationship as a result of her son's death.

Version of the Defense

The defense presented seven (7) witnesses to prove the innocence of the petitioners. Their testimonies are
summarized as follow:

Richard Cornelio (Cornelio), an APO Fraternity member, testified that on January 13, 2006, around 4:00 to 4:30
o'clock in the afternoon, he met Dungo at the UP Los Baños Graduate School. Dungo asked him if he would attend
the initiation ceremony, and Cornelio answered in the negative because he had other things to do. At 10:00 o'clock
in the evening of the same day, Cornelio again met Dungo and his girlfriend while eating a hamburger at the
Burger Machine along; Raymundo Street, Umali Subdivision, Los Baños, Laguna (Raymundo Street). He asked
Dungo if he would attend the initiation ceremony. Dungo replied that he would not because he and his girlfriend
had something to do.

Ana Danife Rivera (Rivera), the girlfriend of Dungo, testified that on January 13, 2006 at around 1:00 o'clock in the
afternoon, Dungo came and visited her at her boarding house on Raymundo Street. Around 4:00 o'clock of the
same afternoon, they went to the UP Los Baños Graduate School and saw Cornelio. Afterwards, they went back to
her boarding house and stayed there from 5:00 o'clock in the afternoon to 7:00 o'clock in the evening. Then, they
went to Lacxo Restaurant for dinner and left at around 10:00 o'clock in the evening. On their way back to her
boarding house, they encountered Cornelio again at the Burger Machine. Dungo then stayed and slept at her
boarding house. Around 2:00 o'clock in the early morning of January 14, 2006, they were roused from their sleep
by a phone call from Sibal, asking Dungo to go to a resort in Pansol, Calamba City. Dungo then left the boarding
house.

Dungo testified that around 1:00 o'clock in the early afternoon of January 13, 2006, he arrived at the boarding
house of his girlfriend, Rivera, on Raymundo Street. At around 4:00 o'clock in the afternoon, they went to the UP
Los Baños Graduate School and inquired about the requirements for a master's degree. They walked back to the
boarding house and met Cornelio. They talked about their fraternity's final initiation ceremony for that night in
Pansol, Calamba City. Dungo and Rivera then reached the latter's boarding house around 5:00 o'clock in the
afternoon. At around 7:00 o'clock in the evening, they went out for dinner at the Lacxo Restaurant, near Crossing
Junction, Los Baños. They ate and stayed at the restaurant for at least one and a half hours. Then they walked back
to the boarding house of Rivera and, along the way, they met Cornelio again at the Burger Machine along
Raymundo Street. Cornelio asked Dungo if he would attend their fraternity's final initiation ceremony, to which he
replied in the negative. Dungo and Rivera reached the boarding house around 9:00 o'clock in the evening and they
slept there.

Around 2:00 o'clock in the early morning of January 14, 2006, Dungo was roused from his sleep because Sibal was
calling him on his cellphone. Sibal asked for his help, requesting him to go to Villa Novaliches Resort in Pansol,
Calamba City. Upon Dungo's arrival at the resort, Sibal led him inside. There, he saw Rudolfo Castillo (Castillo), a
fellow APO fraternity brother, and Villanueva, who was unconscious. Dungo told them that they should bring
Villanueva to the hospital. They all agreed, and Castillo called a tricycle that brought them to JP Rizal Hospital. He
identified himself before the security guard as Jerico Paril because he was scared to tell his real name.

Gilbert Gopez (Gopez) testified that he was the Grand Chancellor of the APO- Theta Chapter for years 2005-2006.
At around 7:00 o'clock in the evening of January 13, 2006, he was at the tambayan of their fraternity in UP Los
Baños because their neophytes would be initiated that night. Around 8:30 o'clock in the evening, they met their
fraternity brothers in Bagong Kalsada, Los Baños. He noticed that their neophyte, Villanueva, was with Castillo and
that there was a bruise on the left side of his face. Then they boarded a jeepney and proceeded to Villa Novaliches
Resort in Pansol, Calamba City. There, Gopez instructed Sibal to take Villanueva to the second floor of the resort.
He confronted Castillo as to what happened to Villanueva. Around 11:00 or 11:30 o'clock in the evening, Gopez
decided to cancel the final rites. He told Sibal to stay at the resort and accompany Villanueva and Castillo. Together
with the other neophytes, Gopez left the resort and went back to UP Los Baños.

Sibal testified that he was a DOST Scholar at the UP Los Baños from 2002 to 2006, taking up B.S. Agricultural
Chemistry. He was a Brother Actuary of the APO - Theta Chapter, and was in charge of fraternity activities, such as
tree planting, free medical and dental missions, and blood donations. On January 13, 2006, at around 6:00 o'clock
in the evening, he was at the fraternity's tambayan for the final initiation rites of their neophytes. After preparing
the food for the initiation rites, Sibal, together with some neophytes, went to Bagong Kalsada, Los Baños, where he
saw fellow fraternity brother Castillo with their neophyte Villanueva, who had a bruised face. Thereafter, they
boarded a jeepney and proceeded to Villa Novaliches Resort in Pansol, Calamba City. Once inside the resort, he
accompanied Villanueva upstairs for the latter to take a rest. A few minutes later, he went down and confronted
Castillo about the bruises on Villanueva's face. He was angry and irritated with Castillo. He then stayed outside the
resort until Gopez and the other neophytes came out and told him that the final initiation rite was cancelled, and
that they were returning to UP Los Baños. Sibal wanted to go with them but he was ordered to stay with
Villanueva and Castillo.

After the group of Gopez left, Sibal checked on the condition of Villanueva, who was sleeping on the second floor
of the resort. Then he went outside for one hour, or until 1:00 o'clock in the early morning of January 14, 2006.
Sibal entered the resort again and saw Villanueva, who looked unconscious, seated in one of the benches on the
ground floor. Sibal inquired about Villanueva's condition but he was ignored by Castillo. He then called Dungo for
help. After Dungo arrived at the resort, they hailed a tricycle and brought Villanueva to JP Rizal Hospital. There, he
gave a false name to the security guard as he heard that Dungo had done the same.

The RTC Ruling

On February 23, 2011, the RTC found Dungo and Sibal guilty of the crime of violating Section 4 of the Anti-Hazing
Law and sentenced them to suffer the penalty of reclusion perpetua. The trial court stated that the prosecution
established the presence of Dungo and Sibal (1) at the UP Los Baños Campus on January 13, 2006 around 3:0.0
o'clock in the afternoon, by the testimony of Sunga and (2) at the Villa Novaliches Resort around 9:00 o'clock in the
evening of the same day by the testimony of Ignacio. With the extensive testimonies of Dr. Masilungan and Dr.
Camarillo, the prosecution also proved that Villanueva died from hazing injuries.

According to the RTC, the evidence of the prosecution undeniably proved that Villanueva, a UP Los Baños student,
was a neophyte of the APO - Theta Chapter Fraternity; that Dungo and Sibal were members of the said fraternity;
that on the evening of January 13, 2006, Dungo and Sibal, together with the other fraternity members, officers and
alumni, brought and transported Villanueva and two other neophytes to Villa Novaliches Resort at Barangay
Pansol, Calamba City, for the final initiation rites; that the initiation rites were conducted inside the resort,
performed under the cover of darkness and secrecy; that due to the injuries sustained by Villanueva, the fraternity
members and the other two neophytes haphazardly left the resort; and that Dungo and Sibal boarded a tricycle
and brought the lifeless body of Villanueva to JP Rizal Hospital, where Villanueva was pronounced dead.

The RTC explained that even if there was no evidence that Dungo and Sibal participated to bodily assault and harm
the victim, it was irrefutable that they brought Villanueva to the resort for their final initiation rites. Clearly, they
did not merely induce Villanueva to attend the final initiation rites, but they also brought him to Villa Novaliches
Resort.

The RTC held that the defense of denial and alibi were self-serving negative assertions. The defense of denial and
alibi of Dungo, which was corroborated by the testimony of his girlfriend Rivera and his co-fraternity brother, could
not be given credence. The witnesses presented by the defense were partial and could not be considered as
disinterested parties. The defense of denial of Sibal likewise failed. The corroborative testimonies of his fraternity
brothers were suspect because they had so much at stake in the outcome of the criminal action.

The decretal portion of the decision reads:

WHEREFORE, the Court finds the accused Dandy Dungo and Gregorio Sibal GUILTY of violating Section 4 of the
Anti-Hazing Law and sentenced them to suffer the penalty of RECLUSION PERPETUA and order them to jointly and
severally pay the family/heirs of Deceased Marlon Villanueva the following sums of money:
1. P141,324.00 for and as actual damages;

2. P200,000.00 for and as moral damages;

3. P100,000.00 for and as exemplary damages; and

4. P50,000.00 for the death of Marlon Villanueva.

SO ORDERED.[20]
Aggrieved, the petitioners filed a notice of appeal. In their brief, they contended that the prosecution failed to
establish their guilt beyond reasonable doubt for violating R.A. No. 8049. They also assailed the constitutionality of
Section 4 of the said law, which stated that mere presence in the hazing was prima facie evidence of participation
therein, because it allegedly violated the constitutional presumption of innocence of the accused.

The CA Ruling

The CA ruled that the appeal of Dungo and Sibal was bereft of merit. It stated that, in finding them guilty of
violating R.A. No. 8049, the RTC properly relied on circumstantial evidence adduced by the prosecution. The CA
painstakingly discussed the unbroken chain of circumstantial evidence to convict Dungo and Sibal as principals in
the crime of hazing.

It further found that the defense of denial and alibi of Dungo and Sibal failed to cast doubt on the positive
identification made by the prosecution witnesses; and that denial, being inherently weak, could not prevail over
the positive identification of the accused as the perpetrators of the crime.

The CA also stated that Dungo and Sibal were not only convicted based on their presence in the venue of the
hazing, but also in their act of bringing the victim to Villa Novaliches Resort for the final initiation rites.

The dispositive portion of the decision reads:

WHEREFORE, premises considered, the February 23, 2011 Decision of the Regional Trial Court, Branch 36 of
Calamba City in CRIM. Case No. 13958-2006-C, finding accused-appellant guilty beyond reasonable doubt of
Violation of R.A. 8049 is hereby AFFIRMED in TOTO.

SO ORDERED.[21]
Dungo and Sibal moved for reconsideration but their motion was denied by the CA in the assailed October 8, 2013
Resolution.

Hence, this petition.

SOLE ASSIGNMENT OF ERROR

THE JUDGMENTS OF THE RTC AND THE CA A QUO CONSTITUTE A VIOLATION OF THE CONSTITUTIONAL RIGHT OF
THE ACCUSED TO BE INFORMED OF THE NATURE AND CAUSE OF ACCUSATION AGAINST THEM BECAUSE THE
OFFENSE PROVED AS FOUND AND PRONOUNCED THEREBY IS DIFFERENT FROM THAT CHARGED IN THE
INFORMATION, NOR DOES ONE INCLUDE OR NECESSARILY INCLUDE THE OTHER.[22]
Petitioners Dungo and Sibal argue that the amended information charged them as they "did then and there
willfully, unlawfully and feloniously assault and use personal violence upon one Marlon Villanueva y
Mejilla."[23] Yet, both the RTC and the CA found them guilty of violating R.A. No. 8049 because they "[i]nduced the
victim to be present"[24] during the initiation rites. The crime of hazing by inducement does not necessarily include
the criminal charge of hazing by actual participation. Thus, they cannot be convicted of a crime not stated or
necessarily included in the information. By reason of the foregoing, the petitioners contend that their
constitutional right to be informed of the nature and cause of accusation against them has been violated.
In its Comment,[25] filed on May 23, 2014, the Office of the Solicitor General (OSG) asserted that Dungo and Sibal
were charged in the amended information with the proper offense and convicted for such. The phrases "planned
initiation" and "in conspiracy with more or less twenty members and officers" in the amended information
sufficiently cover "knowingly cooperated in carrying out the hazing by inducing the victim to be present thereat."
The planned initiation rite would not have been accomplished were it not for the acts of the petitioners in inducing
the victim to be present thereat and it was obviously conducted in conspiracy with the others. [26]

In their Reply[27] filed on September 10, 2014, Dungo and Sibal insisted that there was a variance between the
offense charged of "actually participated in the infliction of physical harm," and the offense "knowingly cooperated
in carrying out the hazing by inducing the victim to be present thereat." [28] The prosecution, moreover, failed to
establish conspiracy because no act or circumstance was proved pointing to a joint purpose and design between
and among the petitioners and the other twenty accused.

The Court's Ruling

The petition lacks merit.

Procedural Matter

An appeal is a proceeding undertaken to have a decision reconsidered by bringing it to a higher court

authority.[29] The right to appeal is neither a natural right nor is it a component of due process. It is a mere
statutory privilege, and may be exercised only in the manner and in accordance with the provisions oflaw. [30]

Section 13(c), Rule 124 of the Revised Rules of Criminal Procedure, as amended by A.M. No. 00-5-03, dated
October 15, 2004, governs the procedure on the appeal from the CA to the Court when the penalty imposed is
either reclusion perpetua or life imprisonment.[31]According to the said provisiOn, "[i]n cases where the Court of
Appeals imposes reclusion perpetua, life imprisonment or a lesser penalty, it shall render and enter judgment
imposing such penalty. The judgment may be appealed to the Supreme Court by notice of appeal filed with the
Court of Appeals."

Hence, an accused, upon whom the penalty of reclusion perpetua or life imprisonment had been imposed by the
CA, can simply file a notice of appeal to allow him to pursue an appeal as a matter of right before the Court. An
appeal in a criminal case opens the entire case for review on any question including one not raised by the
parties.[32] Section 13(c), Rule 124 recognizes the constitutionally conferred jurisdiction of the Court in all criminal
cases in which the penalty imposed is reclusion perpetua or higher.[33]

An accused, nevertheless, is not precluded in resorting to an appeal by certiorari to the Court via Rule 45 under the
Rules of Court. An appeal to this Court by petition for review on certiorari shall raise only questions of
law.[34] Moreover, such review is not a matter of right, but of sound judicial discretion, and will be granted only
when there are special and important reasons.[35]

In other words, when the CA imposed a penalty of reclusion perpetua or life imprisonment, an accused may: (1) file
a notice of appeal under Section 13(c), Rule 124 to avail of an appeal as a matter of right before the Court and
open the entire case for review on any question; or (2) file a petition for review on certiorari under Rule 45 to
resort to an appeal as a matter of discretion and raise only questions of law.

In this case, the CA affirmed the RTC decision imposing the penalty of reclusion perpetua upon the petitioners. The
latter opted to appeal the CA decision via a petition for certiorari under Rule 45. Consequently, they could only
raise questions of law. Oddly, the petitioners began to assail the existence of conspiracy in their reply,[36] which is a
question of fact that would require an examination of the evidence presented. In the interest of justice, however,
and due to the novelty of the issue presented, the Court deems it proper to open the whole case for review. [37]
Substantive Matter

In our contemporary society, hazing has been a nightmare of parents who send their children to college or
university. News of deaths and horrible beatings primarily among college students due to hazing injuries continue
to haunt us. Horrid images of eggplant-like buttocks and thighs and pounded arms and shoulders ofyoung men are
depicted as a fervent warning to those who dare undergo the hazing rites. The meaningless death of these
promising students, and the agony, cries and ordeal of their families, resonate through the very core of our beings.
But no matter how modem and sophisticated our society becomes, these barbaric acts of initiation of fraternities,
sororities and other organizations continue to thrive, even within the elite grounds of the academe.

The history and phenomenon of hazing had been thoroughly discussed in the recent case of Villareal v.
People.[38] It is believed that the fraternity system and its accompanying culture of hazing were transported by the
Americans to the Philippines in the late 19th century.[39] Thus, a study of the laws and jurisprudence of the United
States (US) on hazing can enlighten the current predicament of violent initiations in fraternities, sororities and
other organizations.

United States Laws and Jurisprudence on Hazing

There are different definitions of hazing, depending on the laws of the states. [40] In the case of People v.
Lenti,[41] the defendant therein challenged the constitutionality of the· state law defining hazing on the ground of
vagueness. The court rejected such contention and held that it would have been an impossible task if the
legislature had attempted to define hazing specifically because fraternal organizations and associations never
suffered for ideas in contriving new forms of hazing. Presently, the acceptable definition of hazing is the practice of
physically or emotionally abusing newcomers to an organization as a means of initiation. [42]

Hazing can be classified into various categories including, but not limited to, acts of violence, acts of humiliation,
sexual-related acts, and alcohol-related acts.[43] The physical form of hazing may include beating, branding,
paddling, excessive exercise, drinking, and using drugs. Sexual hazing have included simulated sex acts, sodomy
and forced kissing.[44] Moreover, hazing does not only result in physical injuries and hospitalization, but also lead to
emotional damage and traumatic stress.[45]

Based on statistics and alarming frequency of hazing, states have attempted to combat hazing through the passage
of state laws that prohibit such acts.[46] Forty-four states, with the exception of Alaska, Hawaii, Montana, New
Mexico, South Dakota, and Wyoming, have passed antihazing laws.[47] The severity of these laws can range from
minor penalties to a prison sentence for up to six years.[48] In the states of Illinois, Idaho, Missouri, Texas, Virginia,
Wisconsin, hazing that result in death or "great bodily harm" is categorized as a felony. [49]

In Florida, the Chad Meredith Act,[50] a law named after a student who died in a hazing incident, was enacted on
July 1, 2005. It provides that a person commits a third degree felony when he or she intentionally or recklessly
commits any act of hazing and the hazing results in serious bodily injury or death. If a person only creates
substantial risk of physical injury or death, then hazing is categorized as a first degree misdemeanor. A similar
provision can be observed in the Penal Law ofNew York.[51]

Interestingly, some states included notable features in their antihazing statute to increase its effectiveness. In
Alabama, Arkansas, Massachusetts, New Hampshire, South Carolina and Texas, the law imposes a duty on school
personnel to report hazing.[52] In fact, in Alabama, no person is allowed to knowingly permit, encourage, aid, or
assist any person in committing the offense of hazing, or willfully acquiesces in its commission. [53]

Also, some states enacted statutes that have been interpreted to mean that persons are guilty of hazing even if
they have the consent of the victim.[54] In New Jersey, consent is not a defense to a hazing charge, and its law
permits the prosecution of offenders under other applicable criminal statutes. [55] By including these various
provisions in their anti-hazing statutes, these states have removed the subjective inquiry of consent from
consideration, thus, presumably allowing courts to effectively and properly adjudicate hazing cases. [56]
In the US, hazing victims can either file a criminal action, based on anti-hazing statutes, or a civil suit, arising from
tort law and constitutional law, against the members of the local fraternity, the national fraternity and even
against the university or college concerned.[57] Hazing, which threatens to needlessly harm students, must be
attacked from whatever legal means are possible.[58]

In State v. Brown,[59] a member of the Alpha Kappa Alpha at Kent State University was indicted for complicity to
hazing. The group physically disciplined their pledges by forcing them to stand on their heads, beating them with
paddles, and 'smacking and striking initiates in the face and head. The Ohio court held that evidence presented
therein was more than sufficient to sustain a conviction.

Excessive intake of alcohol in the fraternity initiations can be considered as hazing. In Oja v. Grand Chapter of
Theta Chi Fraternity Inc.,[60] a 17-year old college freshman died as a result of aspirating his own vomit after
consuming excessive amounts of alcohol in a fraternity initiation ritual. The defendants in the said case contended
that they only furnished the alcohol drinks to the victim. The court denied the defense because such acts of the
fraternity effectively contributed to the death of the victim as part of their hazing.

Even in high school, hazing could exist. In Nice v. Centennial Area School District,[61] a tenth-grade wrestler at
William Tennet High School was subjected to various forms of hazing, including a ritual where the victim was
forcibly held down, while a teammate sat on his face with his buttocks exposed. The parents of the student sued
the school because it failed to prevent the incident despite its knowledge of the hazing rites. The court approved
the settlement ofthe parties in the amount of US$151,000.00.

More recently, the case of Yost v. Wabash College[62] involved the hazing of an 18-year old freshman, who suffered
physical and mental injuries in the initiation rites conducted by the Phi Kappa Psi fraternity. As a pledge, the victim
was thrown into a creek and was placed in a chokehold, until he lost consciousness. The court upheld that action
against the local fraternity because, even if the student consented, the fraternity had the duty to ensure the safety
of its activities.

The US anti-hazing laws and jurisprudence show that victims of hazing can properly attain redress before the court.
By crafting laws and prosecuting offenders, the state can address the pistinct dilemma of hazing.

Anti-Hazing Law in the Philippines

R.A. No. 8049, or the Anti-Hazing Law of 1995, has been enacted to regulate hazing and other forms of initiation
rites in fraternities, sororities, and other organizations. It was in response to the rising incidents of death of hazing
victims, particularly the death of Leonardo "Lenny" Villa.[63] Despite its passage, reports of deaths resulting from
hazing continue to emerge. Recent victims were Guillo Servando of the College of St. Benilde, Marc Andre Marcos
and Marvin Reglos of the San Beda College - Manila, and Cris Anthony Mendez of the University of the Philippines -
Diliman. With the continuity of these senseless tragedies, one question implores for an answer: is R.A. No. 8049 a
sufficient deterrent against hazing?

To answer the question, the Court must dissect the provisions of the law and scrutinize its effect, implication and
application.

Criminal law has long divided crimes into acts wrong in themselves called acts mala in se; and acts which would ot
be wrong but for the fact that positive law forbids them, called acts mala prohibita. This distinction is important
with reference to the intent with which a wrongful act is done. The rule on the subject is that in acts mala in se, the
intent governs; but in acts mala prohibita, the only inquiry is, has the law been violated? When an act is illegal, the
intent of the offender is immaterial.[64] When the doing of an act is prohibited by law, it is considered injurious to
public welfare, and the doing of the prohibited act is the crime itself. [65]

A common misconception is that all mala in se crimes are found in the Revised Penal Code (RPC), while all mala
prohibita crimes are provided by special penal laws. In reality, however, there may be mala in se crimes under
special laws, such as plunder under R.A. No. 7080, as amended. [66]

Similarly, there may be mala prohibita crimes defined in the RPC, such as technical malversation.[67]

The better approach to distinguish between mala in se and mala prohibita crimes is the determination of the
inherent immorality or vileness of the penalized act. If the punishable act or omission is immoral in itself, then it is
a crime mala in se; on the contrary, if it is not immoral in itself, but there is a statute prohibiting its commission by
reasons of public policy, then it is mala prohibita. In the final analysis, whether or not a crime involves moral
turpitude is ultimately a question of fact and frequently depends on all the circumstances surrounding the
violation of the statute.[68]

The crime of hazing under R.A. No. 8049 is malum prohibitum. The Senate deliberations would show that the
lawmakers intended the antihazing statute to be malum prohibitum, as follows:

SENATOR GUINGONA: Most of these acts, if not all, are already punished under the Revised Penal Code.

SENATOR LINA. That is correct, Mr. President.

SENATOR GUINGONA. If hazing is done at present and it results in death, the charge would be murder or homicide.

SENATOR LINA. That is correct, Mr. President.

SENATOR GUINGONA. If it does not result in death, it may be frustrated homicide or serious physical injuries.

SENATOR LINA. That is correct, Mr. President.

SENATOR GUINGONA. Or, if the person who commits sexual abuse does so it can be penalized under rape or acts
of lasciviousness.

SENATOR LINA. That is correct, Mr. President.

SENATOR GUINGONA. So, what is the rationale for making a new offense under this definition of the crime of
hazing?

SENATOR LINA. To discourage persons or group of persons either composing a sorority, fraternity or any
association from making this requirement of initiation that has already resulted in these specific acts or results, Mr.
President.

That is the main rationale. We want to send a strong signal across the land that no group or association can require
the act of physical initiation before a person can become a member without being held criminally liable.

xxx xxx xxx

SENATOR GUINGONA. Yes, but what would be the rationale for that imposition? Because the distinguished
Sponsor has said that he is not punishing a mere organization, he is not seeking the punishment of an initiation
into a club or organization, he is seeking the punishment of certain acts that resulted in death, etcetera as a result
of hazing which are already covered crimes.

The penalty is increased in one, because we would like to discourage hazing, abusive hazing, but it may be a
legitimate defense for invoking two or more charges or offenses, because these very same acts are already
punishable under the Revised Penal Code.
That is my difficulty, Mr. President.

SENATOR LINA. x x x

Another point, Mr. President, is this, and this is a very telling difference: When a person or group of persons resort
to hazing as a requirement for gaining entry into an organization, the intent to commit a wrong is not visible or
is not present, Mr. President. Whereas, in these specific crimes, Mr. President, let us say there is death or there
is homicide, mutilation, if one files a case, then the intention to commit a wrong has to be proven. But if the
crime of hazing is the basis, what is important is the result from the act of hazing.

To me, that is the basic difference and that is what will prevent or deter the sororities or fraternities; that they
should really shun this activity called "hazing." Because, initially, these fraternities or sororities do not even
consider having a neophyte killed or maimed or that acts of lasciviousness are even committed initially, Mr.
President.

So, what we want to discourage is the so-called initial innocent act. That is why there is need to institute this kind
of hazing. Ganiyan po ang nangyari. Ang fraternity o ang sorority ay magre-recruit. Wala talaga silang intensiyong
makamatay. Hindi ko na babanggitin at buhay pa iyong kaso. Pero dito sa anim o pito na namatay nitong
nakaraang taon, walang intensiyong patayin talaga iyong neophyte. So, kung maghihintay pa tayo, na saka lamang
natin isasakdal ng murder kung namatay na, ay after the fact ho iyon. Pero, kung sasabihin natin sa mga kabataan
na: "Huwag ninyong gagawin iyong hazing. Iyan ay kasalanan at kung mamatay diyan, mataas ang penalty sa inyo."

xxx xxx xxx

SENATOR GUINGONA. I join the lofty motives, Mr. President, of the distinguished Sponsor. But I am again
disturbed by his statement that the prosecution does not have to prove the intent that resulted in the death, that
resulted in the serious physical injuries, that resulted in the acts of lasciviousness or deranged mind. We do not
have to prove the willful intent of the accused in proving or establishing the crime of hazing. This seems, to me, a
novel situation where we create the special crime without having to go into the intent, which is one of the basic
elements of anycnme.

If there is no intent, there is no crime. If the intent were merely to initiate, then there is no offense. And even the
distinguished Sponsor admits that the organization, the intent to initiate, the intent to have a new society or a new
club is, per se, not punishable at all. What are punishable are the acts that lead to the result. But if these results
are not going to be proven by intent, but just because there was hazing, I am afraid that it will disturb the basic
concepts of the Revised Penal Code, Mr. President.

SENATOR LINA. Mr. President, the act of hazing, precisely, is being criminalized because in the context of what is
happening in the sororities and fraternities, when they conduct hazing, no one will admit that their intention is to
maim or to kill. So, we are already criminalizing the fact of inflicting physical pain. Mr. President, it is a criminal act
and we want it stopped, deterred, discouraged.

If that occurs, under this law, there is no necessity to prove that the masters. intended to kill or the masters
intended to maim. What is important is the result of the act of hazing. Otherwise, the masters or those who
inflict the physical pain can easily escape responsibility and say, "We did not have the intention to kill. This is part
of our initiation rites. This is normal. We do not have any intention to kill or maim."

This is the lusot, Mr. President. They might as well have been charged therefore with the ordinary crime of
homicide, mutilation, etcetera, where the prosecution will have a difficulty proving the elements if they are
separate offenses.
 xxx xxx xxx

SENATOR LINA. x x x

I am very happy that the distinguished Minority Leader brought out the idea of intent or whether it is mala in
se or mala prohibita. There can be a radical amendment if that is the point that he wants to go to.

If we agree on the concept, then, maybe, we can just make this a special law on hazing. We will not include this
anymore under the Revised Penal Code. That is a possibility. I will not foreclose that suggestion, Mr. President. [69]

[Emphases Supplied]
Having in mind the potential conflict between the proposed law and the core principle of mala in se adhered to
under the RPC, the Congress did not simply enact an amendment thereto. Instead, it created a special law on
hazing, founded upon the principle of mala prohibita.[70] In Vedaña v. Valencia,[71] the Court noted that in our
nation's very recent history, the people had spoken, through the Congress, to deem conduct constitutive of hazing,
an act previously considered harmless by custom, as criminal.[72] The act of hazing itself is not inherently immoral,
but the law deems the same to be against public policy and must be prohibited. Accordingly, the existence of
criminal intent is immaterial in the crime of hazing. Also, the defense of good faith cannot be raised in its
prosecution.[73]

Section 1 of R.A. No. 8049 defines hazing as an initiation rite or practice as a prerequisite for admission into
membership in a fraternity, sorority or organization by placing the recruit, neophyte or applicant in some
embarrassing or humiliating situations such as forcing him to do menial, silly, foolish and other similar tasks or
activities or otherwise subjecting him to physical or psychological suffering or injury. From the said definition, the
elements of the crime of hazing can be determined:

1. That there is an initiation rite or practice as a prerequisite for admission into membership in a fraternity,
sorority or organization;

2. That there must be a recruit, neophyte or applicant of the fraternity, sorority or organization; and

3. That the recruit, neophyte or applicant is placed in some embarrassing or humiliating situations such as
forcing him to do menial, silly, foolish and other similar tasks or activities or otherwise subjecting him
to physical or psychological suffering or injury.

From the said definition of hazing, it is apparent that there must be an initiation rite or practice performed by the
fraternities, sororities or organization. The law, however, did not limit the definition of these groups to those
formed within academic colleges and universities.[74]In fact, the second paragraph of Section 1 provides that the
term "organization" shall include any club or the Armed Forces of the Philippines (AFP), Philippine National Police
(PNP), Philippine Military Academy (PMA), or officer and cadet corp of the Citizen's Military Training and Citizen's
Army Training. Even the president, manager, director or other responsible officer of a corporation engaged in
hazing as a requirement for employment are covered by the law. [75]

R.A. No. 8049 qualifies that the physical, mental and psychological testing and training procedure and practices to
determine and enhance the physical, mental and psychological fitness of prospective regular members of the AFP
and the PNP, as approved by the Secretary of National Defense and the National Police Commission, duly
recommended by the Chief of Staff of the AFP and the Director General of the PNP, shall not be considered as
hazing.
And not all forms of initiation rites are prohibited by the law. Section 2 thereof provides that initiation rites of
fraternities, sororities or organizations shall be allowed provided that the following requisites are met:

1. That the fraternity, sorority or organization has a prior written notice to the school authorities or head of
organization;

2. The said written notice must be secured at least seven (7) days before the conduct of such initiation;

3. That the written notice shall indicate:

a.
b. The period of the initiation activities, which shall not exceed three (3) days;

c. The names of those to be subjected to such activities; and

d. An undertaking that no physical violence be employed by anybody during such initiation rites.

Section 3 of R.A. No. 8049 imposes an obligation to the head of the school or organization or their representatives
that they must assign at least two (2) representatives, as the case may be, to be present during these valid
initiations. The duty of such representative is to see to it that no physical harm of any kind shall be inflicted upon a
recruit, neophyte or applicant.

Noticeably, the law does not provide a penalty or sanction to fraternities, sororities or organizations that fail to
comply with the notice requirements of Section 2. Also, the school and organization administrators do not have a
clear liability for non-compliance with Section 3.

Any person who commits the crime of hazing shall be liable in accordance with Section 4 of the law, which
provides different classes of persons who are held liable as principals and accomplices.

The first class of principals would be the actual participants in the hazing. If the person subjected to hazing or other
forms of initiation rites suffers any physical injury or dies as a result thereof, the officers and members of the
fraternity, sorority or organization who actually participated in the infliction of physical harm shall be liable as
principals. Interestingly, the presence of any person during the hazing is prima facie evidence of actual
participation, unless he prevented the commission of the acts punishable herein. [76]

The prescribed penalty on the principals depends on the extent of injury inflicted to the victim.[77] The penalties
appear to be similar to that of homicide, serious physical injuries, less serious physical injuries, and slight physical
injuries under the RPC,[78] with the penalties for hazing increased one degree higher. Also, the law provides several
circumstances which would aggravate the imposable penalty.[79]

Curiously, although hazing has been defined as consisting of those activities involving physical or psychological
suffering or injury, the penalties for hazing only covered the infliction of physical harm. At best, the only
psychological injury recognized would be causing insanity to the victim. Conversely, even if the victim only
sustained physical injuries which did not incapacitate him, there is still a prescribed penalty.[80]

The second class of principals would be the officers, former officers, or alumni of the organization, group,
fraternity or sorority who actually planned the hazing.[81] Although these planners were not present when the acts
constituting hazing were committed, they shall still be liable as principals. The provision took in consideration the
non-resident members of the organization, such as their former officers or alumni.

The third class of principals would be officers or members of an organization group, fraternity or sorority who
knowingly cooperated in carrying out the hazing by inducing the victim to be present thereat. [82] These officers or
members are penalized, not because of their direct participation in the infliction of harm, but due to their
indispensable cooperation in the crime by inducing the victim to attend the hazing.

The next class of principals would be the fraternity or sorority's adviser who was present when the acts
constituting hazing were committed, and failed to take action to prevent them from occurring. [83] The liability of
the adviser arises, not only from his mere presence in the hazing, but also his failure to prevent the same.

The last class of principals would be the parents of the officers or members of the fraternity, group, or
organization.[84] The hazing must be held in the home of one of the officers or members. The parents must have
actual knowledge of the hazing conducted in their homes and failed to take any action to avoid the same from
occurring.

The law also provides for accomplices in the crime of hazing. The school authorities, including faculty members,
who consented to the hazing or who have actual knowledge thereof, but failed to take any action to prevent the
same from occurring shall be punished as accomplices.[85]

Likewise, the owner of the place where the hazing was conducted can also be an accomplice to the crime. [86] The
owner of the place shall be liable when he has actual knowledge of the hazing conducted therein and he failed to
take any steps to stop the same.

Recognizing the malum prohibitum characteristic of hazing, the law provides that any person charged with the said
crime shall not be entitled to the mitigating circumstance that there was no intention to commit so grave a
wrong.[87] Also, the framers of the law intended that the consent of the victim shall not be a defense in hazing.
During the discussion of whether sodomy shall be included as a punishable act under the law, the issue of consent
was tackled:

SENATOR LINA x x x

But sodomy in this case is connected with hazing, Mr. President. Such that the act may even be entered into with
consent. It is not only sodomy. The infliction of pain may be done with the consent of the neophyte. If the law is
passed, that does not make the act of hazing not punishable because the neophyte accepted the infliction of pain
upon himself.

If the victim suffers from serious physical injuries, but the initiator said, "Well, he allowed it upon himself. He
consented to it." So, if we allow that reasoning that sodomy was done with the consent of the victim, then we
would not have passed any law at lflll. There will be no significance if we pass this bill, because it will always be a
defense that the victim allowed the infliction of pain1 or suffering. He accepted it as part of the initiation rites.

But precisely, Mr. President that is one thing that we would want to prohibit. That the defense of consent will not
apply because the very act of inflicting physical pain or psychological suffering is, by itself, a punishable act. The
result of the act of hazing, like death: or physical injuries merely aggravates the act with higher penalties. But
the defense of consent is not going to nullify the criminal nature of the act.

So, if we accept the amendment that sodomy can only aggravate the offense if it is committedr without consent of
the victim, then the whole foundation of this proposed law will collapse.

SENATOR BIAZON. Thank you, Mr. President. SENATOR LINA. Thank you very much.

THE PRESIDENT. Is there any objection to the committee amendment? (Silence.) The Chair hears none; the same is
approved.[88]

[Emphasis supplied]
Further, the law acknowledges that the offended party in the crime of hazing can seek different courses of action.
It provides that the responsible officials of the school or of the police, military or citizen's army training
organization, may impose the appropriate administrative sanctions on the person or the persons charged under
this provision even before their conviction.[89] Necessarily, the offended party can file either administrative, civil, or
criminal actions against the offenders.[90]

The study of the provisions of R.A. No. 8049 shows that, on paper, it is complete and robust in penalizing the crime
of hazing. It was made malum prohibitum to discount criminal intent and disallow the defense of good faith. It took
into consideration the different participants and contributors in the hazing activities. While not all acts cited in the
law are penalized, the penalties imposed therein involve various and serious terms of imprisonment to discourage
would be offenders. Indeed, the law against hazing is ideal and profound. As to whether the law can be effectively
implemented, the Court begs to continue on the merits of the case.

The Information properly charged the offense proved

The petitioners claim that the amended information avers a criminal charge of hazing by actual participation, but
the only offense proved during the trial was hazing by inducement. Their contention must faiL The Amended
Information reads:

That on or about 2:30 in the early morning of January 14, 2006, at Villa Novaliches, Brgy. Pansol, Calamba City,
Province of Laguna and within the jurisdiction of the Honorable Court, the above-named accused, during
a planned initiation rite and being then officers and members of Alpha Phi Omega fraternity and present thereat,
in conspiracy with more or less tvventy other members and officers, whose identity is not yet known, did then and
there willfully, unlawfully and feloniously assault and use personal violence upon one MARLON VILLANUEVA y
MEJILLA, a neophyte thereof and as condition for his admission to the fraternity, thereby subjecting him to
physical harm, resulting to his death, to the damage and prejudice of the heirs of the victim.

CONTRARY TO LAW.[91]
On the manner of how the Information should be worded, Section 9, Rule 110 of the Rules of Court, is
enlightening:

Section 9. Cause of the accusation. The acts or omissions complained of as constituting the offense and the
qualifying and aggravating circumstances must be stated in ordinary and concise language and not necessarily in
the language used in the statute but in terms sufficient to enable a person of common understanding to know
what offense is being charged as well as its qualifying and aggravating circumstances and for the court to
pronounce judgment.
It is evident that the Information need not use the exact language of the statute in alleging the acts or omissions
complained of as constituting the offense. The test is whether it enables a person of common understanding to
know the charge against him, and the court to render judgment properly. [92]

The Court agrees with the OSG that the "planned initiation rite" as stated in the information included the act of
inducing Villanueva to attend it. In ordinary parlance, a planned event can be understood to have different phases.
Likewise, the hazing activity had different stages and the perpetrators had different roles therein, not solely
inflicting physical injury to the neophyte. One of the roles of the petitioners in the hazing activity was to induce
Villanueva to be present. Dungo and Sibal not only induced Villanueva to be present at the resort, but they actually
brought him there. They fulfilled their roles in the planned hazing rite which eventually led to the death of
Villanueva. The hazing would not have been accomplished were it not for the acts of the petitioners that induced
the victim to be present.

Secrecy and silence are common characterizations of the dynamics of hazing.[93] To require the prosecutor to
indicate every step of the planned initiation rite in the information at the inception of the criminal case, when
details of the clandestine hazing are almost nil, would be an arduous task, if not downright impossible. The law
does not require the impossible (lex non cognit ad impossibilia).
The proper approach would be to require the prosecution to state every element of the crime of hazing, the
offenders, and the accompanying circumstances in the planned initiation activity, which has been satisfied in the
present case. Accordingly, the amended information sufficiently informed the petitioners that they were being
criminally charged for their roles in the planned initiation rite.

Conspiracy of the offenders was duly proven

The petitioners assail that the prosecution failed to establish the fact of conspiracy.

The Court disagrees.

A conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and
decide to commit it. To determine conspiracy, there must be a common design to commit a felony. [94] The overt
act or acts of the accused may consist of active participation in the actual commission of the crime itself or may
consist of moral assistance to his co-conspirators by moving them to execute or implement the criminal plan. [95]

In conspiracy, it need not be shown that the parties actually came together and agreed in express terms to enter
into and pursue a common design. The assent of the minds may be and, from the secrecy of the crime, usually
inferred from proof of facts and circumstances which, taken together, indicate that they are parts of some
complete whole.[96] Responsibility of a conspirator is not confined to the accomplishment of a particular purpose of
conspiracy but extends to collateral acts and offenses incident to and growing out of the purpose intended. [97]

The lawmakers ·deliberated on whether the prosecution was still obliged to prove the conspiracy between the
offenders under R.A. 8049, to wit:

SENATOR GUINGONA. Mr. President, assuming there was a group that initiated and a person died. The charge is
murder. My question is: Under this bill if it becomes a law, would the prosecution have to prove conspiracy or not
anymore?

SENATOR LINA. Mr. President, if the person is present during hazing x x x

SENATOR GUINGONA. The persons are present. First, would the prosecution have to prove conspiracy? Second,
would the prosecution have to prove intent to kill or not?

SENATOR LINA. No more. As to the second question, Mr. President, if that occurs, there is no need to prove intent
to kill.

SENATOR GUINGONA. But the charge is murder.

SENATOR LINA. That is why I said that it should not be murder. It should be hazing, Mr. President.[98]
The Court does not categorically agree that, under R.A. No. 8049, the prosecution need not prove conspiracy.
Jurisprudence dictates that conspiracy must be established, not by conjectures, but by positive and conclusive
evidence. Conspiracy transcends mere companionship and mere presence at the scene of the crime does not in
itself amount to conspiracy. Even knowledge, acquiescence in or agreement to cooperate, is not enough to
constitute one as a party to a conspiracy, absent any active participation in the commission of the crime with a
view to the furtherance of the common design and purpose.[99]

R.A. No. 8049, nevertheless, presents a novel provision that introduces a disputable presumption of actual
participation; and which modifies the concept of conspiracy. Section 4, paragraph 6 thereof provides that the
presence of any person during the hazing is prima facie evidence of participation as principal, unless he prevented
the commission of the punishable acts. This provision is unique because a disputable presumption arises from the
mere presence of the offender during the hazing, which can be rebutted by proving that the accused took steps to
prevent the commission of the hazing.

The petitioners attempted to attack the constitutionality of Section 4 of R.A. No. 8049 before the CA, but did not
succeed. "[A] finding of prima facie evidence x x x does not shatter the presumptive innocence the accused enjoys
because, before prima facie evidence arises, certain facts have still to be proved; the trial court cannot depend
alone on such evidence, because precisely, it is merely prima facie. It must still satisfy that the accused is guilty
beyond reasonable doubt of the offense charged. Neither can it rely on the weak defense the latter may
adduce."[100]

Penal laws which feature prima facie evidence by disputable presumptions against the offenders are not new, and
can be observed in the following: (1) the possession of drug paraphernalia gives rise to prima facie evidence of the
use of dangerous drug;[101] (2) the dishonor of the check for insufficient funds is. prima facie evidence of
knowledge of such insufficiency of funds or credit;[102] and (3) the possession of any good which has been the
subject of robbery or thievery shall be prima facie evidence of fencing.[103]

Verily, the disputable presumption under R.A. No. 8049 can be related to the conspiracy in the crime of hazing. The
common design of offenders is to haze the victim. Some of the overt acts that could be committed by the
offenders would be to (1) plan the hazing activity as a requirement of the victim's initiation to the fraternity; (2)
induce the victim to attend the hazing; and (3) actually participate in the infliction of physical injuries.

In this case, there was prima facie evidence of the petitioners' participation in the hazing because of their presence
in the venue. As correctly held by the RTC, the presence of Dungo and Sibal during the hazing at Villa Novaliches
Resort was established by the testimony of Ignacio. She testified that she saw Sibal emerge from the resort and
approach her store, to wit:

MR. DIMACULANGAN
Q: And how many persons from this group did you see again?
WITNESS
A: Three (3), sir.
Where did they come from, did they come out from the resort? Where did this 3 people or this group of
Q:
people coming from?
A: Inside the resort, sir.
Q: And around what time was this?
A: Around 9:00, sir.
Q: And what did they do if any if they came out of the resort?
A: They went to my store, sir.
xxxx
Q: Did you have any other visitors to your store that night?
xxxx
A: "Meron po".
Q: Who were these visitors?
A: I don't know their names but I recognize their faces, sir.
Q: If I show you pictures of these people, will you be able to identify them before this Court.
A: Yes, sir.
xxxx
Mrs. Ignacio, I am showing you this picture of persons marked as Exhibit "L" in the Pre-Trial, can you please
Q:
look over this document carefully and see if any of the persons whom you said visited your store is here?

xxxx
A: "Siya rin po."
COURT:
Make it of record that the witness pinpointed to the first picture appearing on the left picture on the first
row.
 xxxx
ATTY. PAMAOS:
For the record, your Honor, we manifest that the picture and the name pointed by the witness has been
previously marked as Exhibit "L-3" and previously admitted by the defense as referring to Gregorio Sibal, Jr.,
accused in this case...[104]
Ignacio, also positively identified Dungo as among the guests of Villa Novaliches Resort on the night of the hazing,
to wit:

COURT
x x x Now, when you say other people you could identify who are not in the pictures then how would you
Q:
know that these people are indeed those people you could identify?
WITNESS
"lyon pong...di ba po nagkuwento ako na dumating sila tapos nag shake hands at saka iyong nagyakapan
A:
po..."
And what will be the significance of the alleged embrace and shake hands for you to say that you could
Q:
identify those people?
"Hindi po: Noong dumating po sila nasa isang jeep, meron pong lalaki doon sa may tabi ng driver bumaba
A: siya tapos po noong bumaba siya tapas iyong mga kasamahan nya sa likod nagbaba-an din, iyon po nagbati-
an po sila."
Q: And from these greeting, how could you identify these people?
A: "Ngayon ko lang po napag masdan ang taong iyon, hindi ko po alam na akusado po sa kabila iyon."
Q: And who was that person?
A: "Siya po, iyon po."
Q: Who are you pointing to?
A: "lyon pong naka-dilaw na..." (Witness pointing to Dandy Dungo)
So, are you telling the Court that this person you positively saw seated beside the driver came out and
Q:
subsequently embraced and shook hands with the other people from the jeepney, is that your testimony?
A: Yes, your Honor.[105]
The testimony of Ignacio was direct and straightforward. Her testimony was given great weight because she was a
disinterested and credible witness. The prosecution indubitably established the presence of Dungo and Sibal
during the hazing. Such gave rise to the prima facie evidence of their actual participation in the hazing of
Villanueva. They were given an opportunity to rebut and overcome the prima facie evidence of the prosecution by
proving that they prevented the commission of the hazing, yet they failed to do so.

Because of the uncontroverted prima facie evidence against the petitioners, it was shown that they performed an
overt act in the furtherance of the criminal design of hazing. Not only did they induce the victim to attend the
hazing activity, the petitioners also actually participated in it based on the prima facie evidence. These acts are
sufficient to establish their roles in the conspiracy of hazing.

Hence, generally, mere presence at the scene of the crime does not in itself amount to
conspiracy.[106] Exceptionally, under R.A. No. 8049, the participation of the offenders in the criminal conspiracy can
be proven by the prima facie evidence due to their presence during the hazing, unless they prevented the
commission of the acts therein.

The guilt of the petitioners was proven beyond reasonable doubt

Aside from inducing Villanueva to attend the initiation rites and their presence during the hazing, the
petitionersguilt was proven beyond reasonable doubt by the sequence of circumstantial evidence presented by the
prosecution. Their involvement in the hazing of Villanueva is not merely based on prima facie evidence but was
also established by circumstantial evidence.

In considering a criminal case, it is critical to start with the law's own starting perspective on the status of the
accused - in all criminal prosecutions, he is presumed innocent of the charge laid unless the contrary is proven
beyond reasonable doubt.[107] In criminal law, proof beyond reasonable doubt does not mean such degree of proof
that produces absolute certainty. Only moral certainty is required or that degree of proof which produces
conviction in an unprejudiced mind.[108]

While it is established that nothing less than proof beyond reasonable doubt is required for a conviction, this
exacting standard does not preclude resort to circumstantial evidence when direct evidence is not available. Direct
evidence is not a condition sine qua non to prove the guilt of an accused beyond reasonable doubt. For in the
absence of direct evidence, the prosecution may resort to adducing circumstantial evidence to discharge its
burden. Crimes are usually committed in secret and under conditions where concealment is highly probable. If
direct evidence is insisted on under all circumstances, the prosecution of vicious felons who commit heinous
crimes in secret or secluded places will be hard, if not impossible, to prove. [109]

Needless to state, the crime of hazi,ng is shrouded in secrecy. Fraternities and sororities, especially the Greek
organizations, are secretive in nature and their members are reluctant to give any information regarding initiation
rites.[110] The silence is only broken after someone has been injured so severely that medical attention is required.
It is only at this point that the secret is revealed and the activities become public. [111] Bearing in mind the
concealment of hazing, it is only logical and proper for the prosecution to resort to the presentation of
circumstantial evidence to prove it.

The rules on evidence and precedents to sustain the conviction of an accused through circumstantial evidence
require the existence of the following requisites: (1) there are more than one circumstance; (2) the inference must
be based on proven facts; and (3) the combination of all circumstances produces a conviction beyond reasonable
doubt of the guilt of the accused.[112] To justify a conviction upon circumstantial evidence, the combination of
circumstances must be such as to leave no reasonable doubt in the mind as to the criminal liability of the accused.
Jurisprudence requires that the circumstances must be established to form an unbroken chain of events leading to
one fair reasonable conclusion pointing to the accused, to the exclusion of all others, as the author of the
crime.[113]

The CA meticulously wrote in detail the unbroken chain of circumstantial evidence which established the
petitioners' gult in the death of Villanueva as follows:

1. Marlon Villanueva is a neophyte of Alpha Phi Omega, as testified by his roommate Joey Atienza.

2. At around 3:00 o'clock in the afternoon of January 13, 2006, Sunga was staying at their tambayan, talking
to her organization mates. Three men were seated two meters way from her. She identified two of the
men as appellants Sibal and Dungo, while she did not know the third man. The three men were wearing
black shirts with the seal of the Alpha Phi Omega.

3. Later at 5:00 o'clock in the afternoon, two more men coming from the entomology wing arrived and
approached the three men. Among the men who just arrived was the victim, Marlon Villanueva. One of
the men wearing black APO shirts handed over to the two fraternity neophytes some money and told the
men "Mamalengke na kayo." He later took back the money and said, "Huwag na, kami na lang."

4. One of the men wearing a black APO shirt, who was later identified as appellant Dungo, stood up and
asked Marlon if the latter already reported to him, and asked him why he did not report to him when he
was just at the tambayan. Dungo then continuously punched the victim on his arm. This went on for five
minutes. Marlon just kept quiet with his head bowed down. Fifteen minutes later, the men left going
towards the Entomology wing.

5. The deceased Marlon Villanueva was last seen alive by Joey Atienza at 7:00 in the evening of 13 January
2006, from whom he borrowed the shoes he wore at the initiation right [sic]. Marlon told Joey that it was
 his "finals" night.

6. On January 13, 2006 at around 8:30 to 9:00 o'clock in the evening, Susan Ignacio saw more than twenty
(20) persons arrive at the Villa Novaliches Resort onboard a jeepney. She estimated the ages of these
persons to be between 20 to 30 years old. Three (3) persons rirling a single motorcycle likewise arrived at
the resort.

7. Ignacio saw about fifteen (15) persons gather on top of the terrace at the resort who looked like they
were praying. Later that evening, at least three (3) of these persons went to her store to buy some items.
She did not know their names but could identity [sic] their faces. After she was shown colored
photographs, she pointed to the man later identified as Herald Christopher Braseros. She also pointed out
the man later identified as Gregorio Sibal, Jr.

8. Donato Magat, a tricycle driver plying the route of Pansol, Calamba City, testified that around 3:00 o'clock
in the morning of January 14, 2006, he was waiting for passengers at the corner of Villa Novaliches Resort
when a man approached him and told him that someone inside the resort needed a ride. Magat then
went to the resort and asked the two (2) men standing by the gate who will be riding his tricycle.

9. The four (4) men boarded his tricycle but Magat noticed that when he touched the body of the man who
was being carried, it felt cold. The said man looked very weak like a vegetable.

10. Seferino Espina y Jabay testified that he worked as a security guard at the J.P. Rizal Hospital and was
assigned at the emergency room. At around 3:00 o'clock in the early morning of January 14, 2006, he was
with another security guard, Abelardo Natividad and hospital helper Danilo Glindo a.k.a. Gringo, when a
tricycle arrived at the emergency room containing four (4) passengers, excluding the driver. He was an
arm's length away from said tricycle. He identified two of the passengers thereof as appellants Dungo and
Sibal. Espina said he and Glindo helped the passengers unload a body inside the tricycle and brought it to
the emergency room.

11. Afterwards, Espina asked the two men for identification cards. The latter replied that they did not bring
with them any I.D. or wallet. Instead of giving their true names, the appellants listed down their names in
the hospital logbook as Brandon Gonzales y Lanzon and Jericho Paril y Rivera. Espina then told the two
men not to leave, not telling them that they secretly called the police to report the incident which was
their standard operating procedure when a dead body was brought to the hospital.

12. Dr. Ramon Masilungan, who was then the attending physician at the emergency room, observed that
Marlon was motionless, had no heartbeat and already cyanotic.

13. Dr. Masilungan tried to revive Marlon for about 15 to 20 minutes. However, the latter did not respond to
resuscitation and was pronounced dead. Dr. Masilungan noticed a big contusion hematoma on the left
side of the victim's face and several injuries on his arms and legs. He further attested that Marlon's face
was already cyanotic.

14. When Dr. Masilungan pulled down Marlon's pants, he saw a large contusion on both legs which extended
from the upper portion of his thigh down to the couplexial portion or the back of the knee.

15. Due to the nature, extent and location of Marlon's injuries, Dr. Masilungan opined that he was a victim of
hazing. Dr. Masilungan is familiar with hazing injuries, having undergone hazing when he was a student
and also because of his experience treating victims of hazing incidents.

16. Dr. Roy Camarillo, Medico-Legal Officer of the PNP Crime Laboratory in Region IV, Camp Vicente Lim,
Canlubang, Calamba City, testified that he performed an autopsy on the cadaver of the victim on January
14, 2006; that the victim's cause of death was blunt head trauma. From 1999 to 2006, he was able to
 conduct post-mortem examination of the two (2) persons whose deaths were attributed to hazing. These
two (2) persons sustained multiple contusions and injuries on different parts of their body, particularly on
the buttocks, on both upper and lower extremities. Both persons died of brain hemorrhage. Correlating
these two cases to the injuries found on the victim's body, Dr. Camarillo attested that the victim, Marlon
Villanueva, sustained similar injuries to those two (2) persons. Based on the presence of multiple injuries
and contusions on his body, he opined that these injuries were hazing-related.[114]

Petitioners Dungo and Sibal, on the other hand, presented the defense of denial and alibi. These defenses,
however, must fail. Time and time again, this Court has ruled that denial and alibi are the weakest of all defenses,
because they are easy to concoct and fabricate.[115] As properly held by the RTC, these defenses cannot prevail
over the positive and unequivocal identification of the petitioners by prosecution witnesses Sunga and Ignacio. The
testimonies of the defense witnesses also lacked credibility and reliability. The corroboration of defense witness
Rivera was suspect because she was the girlfriend of Dungo, and it was only logical and emotional that she would
stand by the man she loved and cared for. The testimonies of their fellow fraternity brothers, likewise, do not hold
much weight because they had so much at stake in the outcome of the case. Stated differently, the petitioners did
not present credible and disinterested witnesses to substantiate their defenses of denial and alibi.

After a careful review of the records, the Court agrees with the CA and the RTC that the circumstantial evidence
presented by the prosecution was overwhelming enough to establish the guilt of the petitioners beyond a
reasonable doubt. The unbroken chain of events laid down by the CA leaves us no other conclusion other than the
petitioners' participation in the hazing. They took part in the hazing and, together with their fellow fraternity
officers and members, inflicted physical injuries to Villanueva as a requirement of his initiation to the fraternity.
The physical injuries eventually took a toll on the body of the victim, which led to his death. Another young life
lost.

With the fact of hazing, the identity of the petitioners, and their participation therein duly proven, the moral
certainty that produces conviction in an unprejudiced mind has been satisfied.

Final Note

Hazing has been a phenomenon that has beleaguered the country's educational institutions and communities.
News of young men beaten to death as part of fraternities' violent initiation rites supposedly to seal fraternal bond
has sent disturbing waves to lawmakers. Hence, R.A. No. 8049 was signed into to law on June 7, 1995. Doubts on
the effectiveness of the law were raised. The Court, however, scrutinized its provisions and it is convinced that the
law is rigorous in penalizing the crime of hazing.

Hopefully, the present case will serve as a guide to the bench and the bar on the application of R.A. No. 8049.
Through careful case-build up and proper presentation of evidence before the court, it is not impossible for the
exalted constitutional presumption of innocence of the accused to be overcome and his guilt for the crime of
hazing be proven beyond reasonable doubt. The prosecution must bear in mind the secretive nature of hazing, and
carefully weave its chain of circumstantial evidence. Likewise, the defense must present a genuine defense and
substantiate the same through credible and reliable witnesses. The counsels of both parties must also consider
hazing as a malum prohibitum crime and the law's distinctive provisions.

While the Court finds R.A. No. 8049 adequate to deter and prosecute hazing, the law is far from perfect. In Villareal
v. People,[116] the Court suggested that the fact of intoxication and the presence of non-resident or alumni
fraternity members during hazing should be considered as aggravating circumstances that would increase the
applicable penalties. Equally, based on the discussion earlier, this Court suggests some further amendments to the
law. First, there should be a penalty or liability for noncompliance with Section 2, or the written notice
requirement, and with Section 3, or the representation requirement. Second, the penalties under Section 4 should
also consider the psychological harm done to the victim of hazing. With these additional inputs on R.A. No. 8049,
the movement against hazing can be invigorated.

R.A. No. 8049 is a democratic response to the uproar against hazing. It demonstrates that there must, and should,
be another way of fostering brotherhood, other than through the culture of violence and suffering. The senseless
deaths of these young men shall never be forgotten, for justice is the spark that lights the candles of their graves.

WHEREFORE, the petition is DENIED. The April 26, 2013 Decision and the October 8, 2013 Resolution of the Court
of Appeals in CAG.R. CR-H.C. No. 05046 are hereby AFFIRMED in toto.

Let copies of this Decision be furnished to the Secretary of the Department of Justice as guidance for the proper
implementation and prosecution of violators of R.A. No. 8049; and to the Senate President and the Speaker of the
House of Representatives for possible consideration of the amendment of the Anti-Hazing Law to include the
penalty for non compliance with its Section 2 and 3, and the penalty for the psychological harms to the surviving
victims of hazing.

SO ORDERED.

SPECIAL SECOND DIVISION

[ G.R. No. 151258, December 01, 2014 ]

ARTEMIO VILLAREAL, PETITIONER, VS. PEOPLE OF THE PHILIPPINES, RESPONDENT.

[G.R. No. 154954]

PEOPLE OF THE PHILIPPINES, PETITIONER, VS. THE HONORABLE COURT OF APPEALS, ANTONIO MARIANO ALMEDA,
DALMACIO LIM, JR., JUNEL ANTHONY AMA, ERNESTO JOSE MONTECILLO, VINCENT TECSON, ANTONIO GENERAL,
SANTIAGO RANADA III, NELSON VICTORINO, JAIME MARIA FLORES II, ZOSIMO MENDOZA, MICHAEL MUSNGI,
VICENTE VERDADERO, ETIENNE GUERRERO, JUDE FERNANDEZ, AMANTE PURISIMA II, EULOGIO SABBAN, PERCIVAL
D. BRIGOLA, PAUL ANGELO SANTOS, JONAS KARL B. PEREZ, RENATO BANTUG, JR., ADEL ABAS, JOSEPH LLEDO, AND
RONAN DE GUZMAN, RESPONDENTS.

[G.R. No. 155101]

FIDELITO DIZON, PETITIONER, VS. PEOPLE OF THE PHILIPPINES, RESPONDENT.

[G.R. Nos. 178057 & 178080]

GERARDA H. VILLA, PETITIONER, VS. MANUEL LORENZO ESCALONA II, MARCUS JOEL CAPELLAN RAMOS, CRISANTO
CRUZ SARUCA, JR., AND ANSELMO ADRIANO, RESPONDENTS.

RESOLUTION

SERENO, C.J.:

We are asked to revisit our Decision in the case involving the death of Leonardo "Lenny" Villa due to fraternity
hazing. While there is nothing new in the arguments raised by the parties in their respective Motions for
Clarification or Reconsideration, we find a few remaining matters needing to be clarified and resolved. Some of
these matters include the effect of our Decision on the finality of the Court of Appeals judgments insofar as
respondents Antonio Mariano Almeda (Almeda), Junel Anthony D. Ama (Ama), Renato Bantug, Jr. (Bantug), and
Vincent Tecson (Tecson) are concerned; the question of who are eligible to seek probation; and the issue of the
validity of the probation proceedings and the concomitant orders of a court that allegedly had no jurisdiction over
the case.

Before the Court are the respective Motions for Reconsideration or Clarification filed by petitioners People of the
Philippines, through the Office of the Solicitor General (OSG), and Gerarda H. Villa (Villa); and by respondents
Almeda, Ama, Bantug, and Tecson (collectively, Tecson et al.) concerning the Decision of this Court dated 1
February 2012.[1] The Court modified the assailed judgments[2] of the Court of Appeals (CA) in CA-G.R. CR No.
15520 and found respondents Fidelito Dizon (Dizon), Almeda, Ama, Bantug, and Tecson guilty beyond reasonable
doubt of the crime of reckless imprudence resulting in homicide. The modification had the effect of lowering the
criminal liability of Dizon from the crime of homicide, while aggravating the verdict against Tecson et al. from slight
physical injuries. The CA Decision itself had modified the Decision of the Caloocan City Regional Trial Court (RTC)
Branch 121 finding all of the accused therein guilty of the crime of homicide. [3]

Also, we upheld another CA Decision[4] in a separate but related case docketed as CA-G.R. S.P. Nos. 89060 & 90153
and ruled that the CA did not commit grave abuse of discretion when it dismissed the criminal case against Manuel
Escalona II (Escalona), Marcus Joel Ramos (Ramos), Crisanto Saruca, Jr. (Saruca), and Anselmo Adriano (Adriano) on
the ground that their right to speedy trial was violated. Reproduced below is the dispositive portion of our
Decision:[5]

WHEREFORE, the appealed Judgment in G.R. No. 155101 finding petitioner Fidelito Dizon guilty of homicide is
hereby MODIFIED and SET ASIDE IN PART. The appealed Judgment in G.R. No. 154954 finding Antonio Mariano
Almeda, Junel Anthony Ama, Renato Bantug, Jr., and Vincent Tecson guilty of the crime of slight physical injuries is
also MODIFIED and SET ASIDE IN PART. Instead, Fidelito Dizon, Antonio Mariano Almeda, Junel Anthony Ama,
Renato Bantug, Jr., and Vincent Tecson are found GUILTY beyond reasonable doubt of reckless imprudence
resulting in homicide defined and penalized under Article 365 in relation to Article 249 of the Revised Penal Code.
They are hereby sentenced to suffer an indeterminate prison term of four (4) months and one (1) day of arresto
mayor, as minimum, to four (4) years and two (2) months of prison correccional as maximum. In addition, accused
are ORDERED jointly and severally to pay the heirs of Lenny Villa civil indemnity ex delicto in the amount of
P50,000, and moral damages in the amount of P1,000,000, plus legal interest on all damages awarded at the rate
of 12% from the date of the finality of this Decision until satisfaction. Costs de oficio.

The appealed Judgment in G.R. No. 154954, acquitting Victorino et al., is hereby AFFIRMED. The appealed
Judgments in G.R. Nos. 178057 & 178080, dismissing the criminal case filed against Escalona, Ramos, Saruca, and
Adriano, are likewise AFFIRMED. Finally, pursuant to Article 89(1) of the Revised Penal Code, the Petition in G.R.
No. 151258 is hereby dismissed, and the criminal case against Artemio Villareal
deemed CLOSED and TERMINATED.

Let copies of this Decision be furnished to the Senate President and the Speaker of the House of Representatives
for possible consideration of the amendment of the Anti-Hazing Law to include the fact of intoxication and the
presence of non-resident or alumni fraternity members during hazing as aggravating circumstances that would
increase the applicable penalties.

SO ORDERED.

To refresh our memories, we quote the factual antecedents surrounding the present case: [6]

In February 1991, seven freshmen law students of the Ateneo de Manila University School of Law signified their
intention to join the Aquila Legis Juris Fraternity (Aquila Fraternity). They were Caesar "Bogs" Asuncion, Samuel
"Sam" Belleza, Bienvenido "Bien" Marquez III, Roberto Francis "Bert" Navera, Geronimo "Randy" Recinto, Felix Sy,
Jr., and Leonardo "Lenny" Villa (neophytes).
On the night of 8 February 1991, the neophytes were met by some members of the Aquila Fraternity (Aquilans) at
the lobby of the Ateneo Law School. They all proceeded to Rufo's Restaurant to have dinner. Afterwards, they
went to the house of Michael Musngi, also an Aquilan, who briefed the neophytes on what to expect during the
initiation rites. The latter were informed that there would be physical beatings, and that they could quit at any
time. Their initiation rites were scheduled to last for three days. After their "briefing," they were brought to the
Almeda Compound in Caloocan City for the commencement of their initiation.

Even before the neophytes got off the van, they had already received threats and insults from the Aquilans. As
soon as the neophytes alighted from the van and walked towards the pelota court of the Almeda compound, some
of the Aquilans delivered physical blows to them. The neophytes were then subjected to traditional forms of
Aquilan "initiation rites." These rites included the "Indian Run," which required the neophytes to run a gauntlet of
two parallel rows of Aquilans, each row delivering blows to the neophytes; the "Bicol Express," which obliged the
neophytes to sit on the floor with their backs against the wall and their legs outstretched while the Aquilans
walked, jumped, or ran over their legs; the "Rounds," in which the neophytes were held at the back of their pants
by the "auxiliaries" (the Aquilans charged with the duty of lending assistance to neophytes during initiation rites),
while the latter were being hit with fist blows on their arms or with knee blows on their thighs by two Aquilans;
and the "Auxies' Privilege Round," in which the auxiliaries were given the opportunity to inflict physical pain on the
neophytes. During this time, the neophytes were also indoctrinated with the fraternity principles. They survived
their first day of initiation.

On the morning of their second day 9 February 1991 the neophytes were made to present comic plays and to play
rough basketball. They were also required to memorize and recite the Aquila Fraternity's principles. Whenever
they would give a wrong answer, they would be hit on their arms or legs. Late in the afternoon, the Aquilans
revived the initiation rites proper and proceeded to torment them physically and psychologically. The neophytes
were subjected to the same manner of hazing that they endured on the first day of initiation. After a few hours,
the initiation for the day officially ended.

After a while, accused non-resident or alumni fraternity members Fidelito Dizon (Dizon) and Artemio Villareal
(Villareal) demanded that the rites be reopened. The head of initiation rites, Nelson Victorino (Victorino), initially
refused. Upon the insistence of Dizon and Villareal, however, he reopened the initiation rites. The fraternity
members, including Dizon and Villareal, then subjected the neophytes to "paddling" and to additional rounds of
physical pain. Lenny received several paddle blows, one of which was so strong it sent him sprawling to the
ground. The neophytes heard him complaining of intense pain and difficulty in breathing. After their last session of
physical beatings, Lenny could no longer walk. He had to be carried by the auxiliaries to the carport. Again, the
initiation for the day was officially ended, and the neophytes started eating dinner. They then slept at the carport.

After an hour of sleep, the neophytes were suddenly roused by Lenny's shivering and incoherent mumblings.
Initially, Villareal and Dizon dismissed these rumblings, as they thought he was just overacting. When they realized,
though, that Lenny was really feeling cold, some of the Aquilans started helping him. They removed his clothes and
helped him through a sleeping bag to keep him warm. When his condition worsened, the Aquilans rushed him to
the hospital. Lenny was pronounced dead on arrival.

Consequently, a criminal case for homicide was filed against the following 35 Aquilans:

In Criminal Case No. C-38340(91)

1. Fidelito Dizon (Dizon)

2. Artemio Villareal (Villareal)
3. Efren de Leon (De Leon)
4. Vincent Tecson (Tecson)
5. Junel Anthony Ama (Ama)
 6. Antonio Mariano Almeda (Almeda)
7. Renato Bantug, Jr. (Bantug)
8. Nelson Victorino (Victorino)
9. Eulogio Sabban (Sabban)
10. Joseph Lledo (Lledo)
11. Etienne Guerrero (Guerrero)
12. Michael Musngi (Musngi)
13. Jonas Karl Perez (Perez)
14. Paul Angelo Santos (Santos)
15. Ronan de Guzman (De Guzman)
16. Antonio General (General)
17. Jaime Maria Flores II (Flores)
18. Dalmacio Lim, Jr. (Lim)
19. Ernesto Jose Montecillo (Montecillo)
20. Santiago Ranada III (Ranada)
21. Zosimo Mendoza (Mendoza)
22. Vicente Verdadero (Verdadero)
23. Amante Purisima II (Purisima)
24. Jude Fernandez (J. Fernandez)
25. Adel Abas (Abas)
26. Percival Brigola (Brigola)

In Criminal Case No. C-38340

1. Manuel Escalona II (Escalona)

2. Crisanto Saruca, Jr. (Saruca)
3. Anselmo Adriano (Adriano)
4. Marcus Joel Ramos (Ramos)
5. Reynaldo Concepcion (Concepcion)
6. Florentino Ampil (Ampil)
7. Enrico de Vera III (De Vera)
8. Stanley Fernandez (S. Fernandez)
9. Noel Cabangon (Cabangon)

Twenty-six of the accused Aquilans in Criminal Case No. C-38340(91) were jointly tried. On the other hand, the trial
against the remaining nine accused in Criminal Case No. C-38340 was held in abeyance due to certain matters that
had to be resolved first.

On 8 November 1993, the trial court rendered judgment in Criminal Case No. C-38340(91), holding the 26 accused
guilty beyond reasonable doubt of the crime of homicide, penalized with reclusion temporal under Article 249 of
the Revised Penal Code. A few weeks after the trial court rendered its judgment, or on 29 November 1993,
Criminal Case No. C-38340 against the remaining nine accused commenced anew.

On 10 January 2002, the CA in (CA-G.R. No. 15520) set aside the finding of conspiracy by the trial court in Criminal
Case No. C-38340(91) and modified the criminal liability of each of the accused according to individual
participation. Accused De Leon had by then passed away, so the following Decision applied only to the remaining
25 accused, viz:
 1. Nineteen of the accused-appellants Victorino, Sabban, Lledo, Guerrero, Musngi, Perez, De Guzman,
Santos, General, Flores, Lim, Montecillo, Ranada, Mendoza, Verdadero, Purisima, Fernandez, Abas, and
Brigola (Victorino et al.) were acquitted, as their individual guilt was not established by proof beyond
reasonable doubt.

2. Four of the accused-appellants Vincent Tecson, Junel Anthony Ama, Antonio Mariano Almeda, and
Renato Bantug, Jr. (Tecson et al.) were found guilty of the crime of slight physical injuries and sentenced
to 20 days of arresto menor. They were also ordered to jointly pay the heirs of the victim the sum of
P30,000 as indemnity.

3. Two of the accused-appellants Fidelito Dizon and Artemio Villareal were found guilty beyond reasonable
doubt of the crime of homicide under Article 249 of the Revised Penal Code. Having found no mitigating
or aggravating circumstance, the CA sentenced them to an indeterminate sentence of 10 years of prision
mayor to 17 years of reclusion temporal. They were also ordered to indemnify, jointly and severally, the
heirs of Lenny Villa in the sum of P50,000 and to pay the additional amount of P1,000,000 by way of moral
damages.

On 5 August 2002, the trial court in Criminal Case No. 38340 dismissed the charge against accused Concepcion on
the ground of violation of his right to speedy trial. Meanwhile, on different dates between the years 2003 and
2005, the trial court denied the respective Motions to Dismiss of accused Escalona, Ramos, Saruca, and Adriano.
On 25 October 2006, the CA in CA-G.R. SP Nos. 89060 & 90153 reversed the trial court's Orders and dismissed the
criminal case against Escalona, Ramos, Saruca, and Adriano on the basis of violation of their right to speedy trial.

From the aforementioned Decisions, the five (5) consolidated Petitions were individually brought before this Court.
(Citations omitted)

Motion for Partial Reconsideration

filed by Petitioner Gerarda H. Villa

Petitioner Villa filed the present Motion for Partial Reconsideration [7] in connection with G.R. Nos. 178057 &
178080 (Villa v. Escalona) asserting that the CA committed grave abuse of discretion when it dismissed the criminal
case against Escalona, Ramos, Saruca, and Adriano (collectively, Escalona et al.) in its assailed Decision and
Resolution.[8] Villa reiterates her previous arguments that the right to speedy trial of the accused was not violated,
since they had failed to assert that right within a reasonable period of time. She stresses that, unlike their co-
accused Reynaldo Concepcion, respondents Escalona et al. did not timely invoke their right to speedy trial during
the time that the original records and pieces of evidence were unavailable. She again emphasizes that the
prosecution cannot be faulted entirely for the lapse of 12 years from the arraignment until the initial trial, as there
were a number of incidents attributable to the accused themselves that caused the delay of the proceedings. She
then insists that we apply the balancing test in determining whether the right to speedy trial of the accused was
violated.

Motion for Reconsideration filed

by the OSG

The OSG, in its Motion for Reconsideration[9] of G.R. Nos. 155101 (Dizon v. People) and 154954 (People v. Court of
Appeals), agrees with the findings of this Court that accused Dizon and Tecson et al. had neither the felonious
intent to kill (animus interficendi) nor the felonious intent to injure (animus iniuriandi) Lenny Villa. In fact, it
concedes that the mode in which the accused committed the crime was through fault (culpa). However, it
contends that the penalty imposed should have been equivalent to that for deceit (dolo) pursuant to Article 249
(Homicide) of the Revised Penal Code. It argues that the nature and gravity of the imprudence or negligence
attributable to the accused was so gross that it shattered the fine distinction between dolo and culpa by
considering the act as one committed with malicious intent. It maintains that the accused conducted the initiation
rites in such a malevolent and merciless manner that it clearly endangered the lives of the initiates and was thus
equivalent to malice aforethought.

With respect to the 19 other accused, or Victorino et al., the OSG asserts that their acquittal may also be reversed
despite the rule on double jeopardy, as the CA also committed grave abuse of discretion in issuing its
assailed Decision (CA-G.R. No. 15520). The OSG insists that Victorino et al. should have been similarly convicted
like their other co-accused Dizon, Almeda, Ama, Bantug, and Tecson, since the former also participated in the
hazing of Lenny Villa, and their actions contributed to his death.

Motions for Clarification or

Reconsideration of Tecson et al.

Respondents Tecson et al.,[10] filed their respective motions pertaining to G.R. No. 154954 (People v. Court of
Appeals). They essentially seek a clarification as to the effect of our Decision insofar as their criminal liability and
service of sentence are concerned. According to respondents, they immediately applied for probation after the CA
rendered its Decision (CA-G.R. No. 15520) lowering their criminal liability from the crime of homicide, which carries
a non-probationable sentence, to slight physical injuries, which carries a probationable sentence. Tecson et
al. contend that, as a result, they have already been discharged from their criminal liability and the cases against
them closed and terminated. This outcome was supposedly by virtue of their Applications for Probation on various
dates in January 2002[11]pursuant to Presidential Decree No. 968, as amended, otherwise known as the Probation
Law. They argue that Branch 130 of Caloocan City Regional Trial Court (RTC) had already granted their respective
Applications for Probation on 11 October 2002[12] and, upon their completion of the terms and conditions thereof,
discharged them from probation and declared the criminal case against them terminated on various dates in April
2003.[13]

To support their claims, respondents attached[14] certified true copies of their respective Applications for Probation
and the RTC Orders granting these applications, discharging them from probation, and declaring the criminal case
against them terminated. Thus, they maintain that the Decision in CA-G.R. No. 15520 had already lapsed into
finality, insofar as they were concerned, when they waived their right to appeal and applied for probation.

ISSUES

I. Whether the CA committed grave abuse of discretion amounting to lack or excess of jurisdiction when it
dismissed the case against Escalona, Ramos, Saruca, and Adriano for violation of their right to speedy trial

II. Whether the penalty imposed on Tecson et al. should have corresponded to that for intentional felonies

III. Whether the completion by Tecson et al. of the terms and conditions of their probation discharged them
from their criminal liability, and closed and terminated the cases against them

DISCUSSION

Findings on the Motion for Partial Reconsideration

of Petitioner Gerarda H. Villa

As regards the first issue, we take note that the factual circumstances and legal assertions raised by petitioner Villa
in her Motion for Partial Reconsideration concerning G.R. Nos. 178057 & 178080 have already been thoroughly
considered and passed upon in our deliberations, which led to our Decision dated 1 February 2012. We emphasize
that in light of the finding of violation of the right of Escalona et al. to speedy trial, the CA's dismissal of the
criminal case against them amounted to an acquittal,[15] and that any appeal or reconsideration thereof would
result in a violation of their right against double jeopardy. [16] Though we have recognized that the acquittal of the
accused may be challenged where there has been a grave abuse of discretion, [17] certiorari would lie if it is
convincingly established that the CA's Decision dismissing the case was attended by a whimsical or capricious
exercise of judgment equivalent to lack of jurisdiction. It must be shown that the assailed judgment constitutes "a
patent and gross abuse of discretion amounting to an evasion of a positive duty or to a virtual refusal to perform a
duty imposed by law or to act in contemplation of law; an exercise of power in an arbitrary and despotic manner
by reason of passion and hostility; or a blatant abuse of authority to a point so grave and so severe as to deprive
the court of its very power to dispense justice."[18] Thus, grave abuse of discretion cannot be attributed to a court
simply because it allegedly misappreciated the facts and the evidence.[19]

We have taken a second look at the court records, the CA Decision, and petitioner's arguments and found no basis
to rule that the CA gravely abused its discretion in concluding that the right to speedy trial of the accused was
violated. Its findings were sufficiently supported by the records of the case and grounded in law. Thus, we deny the
motion of petitioner Villa with finality.

Ruling on the Motion for Reconsideration

filed by the OSG

We likewise deny with finality the Motion for Reconsideration filed by the OSG with respect to G.R. Nos. 155101
(Dizon v. People) and 154954 (People v. Court of Appeals). Many of the arguments raised therein are essentially a
mere rehash of the earlier grounds alleged in its original Petition for Certiorari.

Furthermore, we cannot subscribe to the OSG's theory that even if the act complained of was born of imprudence
or negligence, malicious intent can still be appreciated on account of the gravity of the actions of the accused. We
emphasize that the finding of a felony committed by means of culpa is legally inconsistent with that committed by
means of dolo. Culpable felonies involve those wrongs done as a result of an act performed without malice or
criminal design. The Revised Penal Code expresses thusly:

ARTICLE 365. Imprudence and Negligence. Any person who, by reckless imprudence, shall commit any act which,
had it been intentional, would constitute a grave felony, shall suffer the penalty of arresto mayor in its maximum
period to prisión correccional in its medium period; if it would have constituted a less grave felony, the penalty
of arresto mayor in its minimum and medium periods shall be imposed.

Any person who, by simple imprudence or negligence, shall commit an act which would otherwise constitute a
grave felony, shall suffer the penalty of arresto mayor in its medium and maximum periods; if it would have
constituted a less serious felony, the penalty of arresto mayor in its minimum period shall be imposed.

xxxx

Reckless imprudence consists in voluntary, but without malice, doing or falling to do an act from which material
damage results by reason of inexcusable lack of precaution on the part of the person performing or failing to
perform such act, taking into consideration his employment or occupation, degree of intelligence, physical
condition and other circumstances regarding persons, time and place.

Simple imprudence consists in the lack of precaution displayed in those cases in which the damage impending to
be caused is not immediate nor the danger clearly manifest. (Emphases supplied)

On the other hand, intentional felonies concern those wrongs in which a deliberate malicious intent to do an
unlawful act is present. Below is our exhaustive discussion on the matter:[20]

Our Revised Penal Code belongs to the classical school of thought. x x x The identity of mens rea defined as a guilty
mind, a guilty or wrongful purpose or criminal intent is the predominant consideration. Thus, it is not enough to
do what the law prohibits. In order for an intentional felony to exist, it is necessary that the act be committed by
means of dolo or "malice."

The term "dolo" or "malice" is a complex idea involving the elements of freedom, intelligence, and intent. x x x x
The element of intent on which this Court shall focus is described as the state of mind accompanying an
act, especially a forbidden act. It refers to the purpose of the mind and the resolve with which a person
proceeds. It does not refer to mere will, for the latter pertains to the act, while intent concerns the result of the
act. While motive is the "moving power" that impels one to action for a definite result, intent is the "purpose" of
using a particular means to produce the result. On the other hand, the term "felonious" means, inter
alia, malicious, villainous, and/or proceeding from an evil heart or purpose. With these elements taken
together, the requirement of intent in intentional felony must refer to malicious intent, which is a vicious and
malevolent state of mind accompanying a forbidden act. Stated otherwise, intentional felony requires the
existence of dolus malus that the act or omission be done "willfully," "maliciously," "with deliberate evil intent,"
and "with malice aforethought." The maxim is actus non facit reum, nisi mens sit rea a crime is not committed if
the mind of the person performing the act complained of is innocent. As is required of the other elements of a
felony, the existence of malicious intent must be proven beyond reasonable doubt.

xxxx

The presence of an initial malicious intent to commit a felony is thus a vital ingredient in establishing the
commission of the intentional felony of homicide. Being mala in se, the felony of homicide requires the existence
of malice or dolo immediately before or simultaneously with the infliction of injuries. Intent to kill or animus
interficendi cannot and should not be inferred, unless there is proof beyond reasonable doubt of such
intent.Furthermore, the victim's death must not have been the product of accident, natural cause, or suicide. If
death resulted from an act executed without malice or criminal intent but with lack of foresight, carelessness, or
negligence the act must be qualified as reckless or simple negligence or imprudence resulting in homicide.

xxxx

In order to be found guilty of any of the felonious acts under Articles 262 to 266 of the Revised Penal Code, the
employment of physical injuries must be coupled with dolus malus. As an act that is mala in se, the existence of
malicious intent is fundamental, since injury arises from the mental state of the wrongdoer iniuria ex affectu
facientis consistat. If there is no criminal intent, the accused cannot be found guilty of an intentional felony. Thus,
in case of physical injuries under the Revised Penal Code,there must be a specific animus iniuriandi or malicious
intention to do wrong against the physical integrity or well-being of a person, so as to incapacitate and deprive
the victim of certain bodily functions. Without proof beyond reasonable doubt of the required animus
iniuriandi, the overt act of inflicting physical injuries per se merely satisfies the elements of freedom and
intelligence in an intentional felony. The commission of the act does not, in itself, make a man guilty unless his
intentions are.

Thus, we have ruled in a number of instances that the mere infliction of physical injuries, absent malicious intent,
does not make a person automatically liable for an intentional felony. x x x.

xxxx

The absence of malicious intent does not automatically mean, however, that the accused fraternity members are
ultimately devoid of criminal liability. The Revised Penal Code also punishes felonies that are committed by means
of fault (culpa). According to Article 3 thereof, there is fault when the wrongful act results from imprudence,
negligence, lack of foresight, or lack of skill.

Reckless imprudence or negligence consists of a voluntary act done without malice, from which an immediate
personal harm, injury or material damage results by reason of an inexcusable lack of precaution or advertence on
the part of the person committing it. In this case, the danger is visible and consciously appreciated by the actor.
In contrast, simple imprudence or negligence comprises an act done without grave fault, from which an injury or
material damage ensues by reason of a mere lack of foresight or skill. Here, the threatened harm is not immediate,
and the danger is not openly visible.

The test for determining whether or not a person is negligent in doing an act is as follows: Would a prudent man
in the position of the person to whom negligence is attributed foresee harm to the person injured as a
reasonable consequence of the course about to be pursued? If so, the law imposes on the doer the duty to take
precaution against the mischievous results of the act. Failure to do so constitutes negligence.

As we held in Gaid v. People, for a person to avoid being charged with recklessness, the degree of precaution and
diligence required varies with the degree of the danger involved. If, on account of a certain line of conduct, the
danger of causing harm to another person is great, the individual who chooses to follow that particular course of
conduct is bound to be very careful, in order to prevent or avoid damage or injury. In contrast, if the danger is
minor, not much care is required. It is thus possible that there are countless degrees of precaution or diligence that
may be required of an individual, "from a transitory glance of care to the most vigilant effort." The duty of the
person to employ more or less degree of care will depend upon the circumstances of each particular case.
(Emphases supplied, citations omitted)

We thus reiterate that the law requires proof beyond reasonable doubt of the existence of malicious intent
or dolus malus before an accused can be adjudged liable for committing an intentional felony.

Since the accused were found to have committed a felony by means of culpa, we cannot agree with the argument
of the OSG. It contends that the imposable penalty for intentional felony can also be applied to the present case on
the ground that the nature of the imprudence or negligence of the accused was so gross that the felony already
amounted to malice. The Revised Penal Code has carefully delineated the imposable penalties as regards felonies
committed by means of culpa on the one hand and felonies committed by means of dolo on the other in the
context of the distinctions it has drawn between them. The penalties provided in Article 365 (Imprudence and
Negligence) are mandatorily applied if the death of a person occurs as a result of the imprudence or negligence of
another. Alternatively, the penalties outlined in Articles 246 to 261 (Destruction of Life) are automatically invoked
if the death was a result of the commission of a forbidden act accompanied by a malicious intent. These imposable
penalties are statutory, mandatory, and not subject to the discretion of the court. We have already resolved and
the OSG agrees that the accused Dizon and Tecson et al. had neither animus interficendi nor animus iniuriandi in
inflicting physical pain on Lenny Villa. Hence, we rule that the imposable penalty is what is applicable to the crime
of reckless imprudence resulting in homicide as defined and penalized under Article 365 of the Revised Penal Code.

Ruling on the Motions for Clarification or

Reconsideration filed by Tecson et al.

We clarify, however, the effect of our Decision in light of the motions of respondents Tecson et al. vis-à-vis G.R.
No. 154954 (People v. Court of Appeals).

The finality of a CA decision will not bar

the state from seeking the annulment of
the judgment via a Rule 65 petition.

In their separate motions,[21] respondents insist that the previous verdict of the CA finding them guilty of slight
physical injuries has already lapsed into finality as a result of their respective availments of the probation program
and their ultimate discharge therefrom. Hence, they argue that they can no longer be convicted of the heavier
offense of reckless imprudence resulting in homicide.[22]Respondents allude to our Decision in Tan v. People[23] to
support their contention that the CA judgment can no longer be reversed or annulled even by this Court.

The OSG counters[24] that the CA judgment could not have attained finality, as the former had timely filed with this
Court a petition for certiorari. It argues that a Rule 65 petition is analogous to an appeal, or a motion for new trial
or reconsideration, in that a petition for certiorari also prevents the case from becoming final and executory until
after the matter is ultimately resolved.

Indeed, Rule 120 of the Rules of Court speaks of the finality of a criminal judgment once the accused applies for
probation, viz:

SECTION 7. Modification of judgment. A judgment of conviction may, upon motion of the accused, be modified or
set aside before it becomes final or before appeal is perfected. Except where the death penalty is imposed, a
judgment becomes final after the lapse of the period for perfecting an appeal, or when the sentence has been
partially or totally satisfied or served, or when the accused has waived in writing his right to appeal, or has applied
for probation. (7a) (Emphases supplied)

Coupled with Section 7 of Rule 117[25] and Section 1 of Rule 122,[26] it can be culled from the foregoing provisions
that only the accused may appeal the criminal aspect of a criminal case, especially if the relief being sought is the
correction or review of the judgment therein. This rule was instituted in order to give life to the constitutional
edict[27] against putting a person twice in jeopardy of punishment for the same offense. It is beyond contention
that the accused would be exposed to double jeopardy if the state appeals the criminal judgment in order to
reverse an acquittal or even to increase criminal liability. Thus, the accused's waiver of the right to appeal as when
applying for probation makes the criminal judgment immediately final and executory. Our explanation in People v.
Nazareno is worth reiterating:[28]

Further prosecution via an appeal from a judgment of acquittal is likewise barred because the government has
already been afforded a complete opportunity to prove the criminal defendant's culpability; after failing to
persuade the court to enter a final judgment of conviction, the underlying reasons supporting the constitutional
ban on multiple trials applies and becomes compelling. The reason is not only the defendant's already established
innocence at the first trial where he had been placed in peril of conviction, but also the same untoward and
prejudicial consequences of a second trial initiated by a government who has at its disposal all the powers and
resources of the State. Unfairness and prejudice would necessarily result, as the government would then be
allowed another opportunity to persuade a second trier of the defendant's guilt while strengthening any
weaknesses that had attended the first trial, all in a process where the government's power and resources are
once again employed against the defendant's individual means. That the second opportunity comes via an appeal
does not make the effects any less prejudicial by the standards of reason, justice and conscience. (Emphases
supplied, citations omitted)

It must be clarified, however, that the finality of judgment evinced in Section 7 of Rule 120 does not confer blanket
invincibility on criminal judgments. We have already explained in our Decision that the rule on double jeopardy is
not absolute, and that this rule is inapplicable to cases in which the state assails the very jurisdiction of the court
that issued the criminal judgment.[29] The reasoning behind the exception is articulated in Nazareno, from which
we quote:[30]

In such instance, however, no review of facts and law on the merits, in the manner done in an appeal, actually
takes place; the focus of the review is on whether the judgment is per se void on jurisdictional grounds, i.e.,
whether the verdict was rendered by a court that had no jurisdiction; or where the court has appropriate
jurisdiction, whether it acted with grave abuse of discretion amounting to lack or excess of jurisdiction. In other
words, the review is on the question of whether there has been a validly rendered decision, not on the question
of the decision's error or correctness. Under the exceptional nature of a Rule 65 petition, the burden a very heavy
one is on the shoulders of the party asking for the review to show the presence of a whimsical or capricious
exercise of judgment equivalent to lack of jurisdiction; or of a patent and gross abuse of discretion amounting to
an evasion of a positive duty or a virtual refusal to perform a duty imposed by law or to act in contemplation of
law; or to an exercise of power in an arbitrary and despotic manner by reason of passion and hostility. (Emphases
supplied, citations omitted)

While this Court's Decision in Tan may have created an impression of the unassailability of a criminal judgment as
soon as the accused applies for probation, we point out that what the state filed therein was a mere motion for
the modification of the penalty, and not a Rule 65 petition. A petition for certiorari is a special civil action that is
distinct and separate from the main case. While in the main case, the core issue is whether the accused is innocent
or guilty of the crime charged, the crux of a Rule 65 petition is whether the court acted (a) without or in excess of
its jurisdiction; or (b) with grave abuse of discretion amounting to lack or excess of jurisdiction. Hence, strictly
speaking, there is no modification of judgment in a petition for certiorari, whose resolution does not call for a re-
evaluation of the merits of the case in order to determine the ultimate criminal responsibility of the accused. In a
Rule 65 petition, any resulting annulment of a criminal judgment is but a consequence of the finding of lack of
jurisdiction.

In view thereof, we find that the proper interpretation of Section 7 of Rule 120 must be that it is inapplicable and
irrelevant where the court's jurisdiction is being assailed through a Rule 65 petition. Section 7 of Rule 120 bars the
modification of a criminal judgment only if the appeal brought before the court is in the nature of a regular appeal
under Rule 41, or an appeal by certiorari under Rule 45, and if that appeal would put the accused in double
jeopardy. As it is, we find no irregularity in the partial annulment of the CA Decision in CA-G.R. No. 15520 in spite
of its finality, as the judgment therein was issued with grave abuse of discretion amounting to lack or excess of
jurisdiction.

The orders of Caloocan City RTC

Branch 130 have no legal effect, as
they were issued without jurisdiction.

First, Tecson et al. filed their Applications for Probation with the wrong court. Part and parcel of our criminal
justice system is the authority or jurisdiction of the court to adjudicate and decide the case before it. Jurisdiction
refers to the power and capacity of the tribunal to hear, try, and decide a particular case or matter before
it.[31] That power and capacity includes the competence to pronounce a judgment, impose a punishment, [32] and
enforce or suspend[33] the execution of a sentence in accordance with law.

The OSG questions[34] the entire proceedings involving the probation applications of Tecson et al. before Caloocan
City RTC Branch 130. Allegedly, the trial court did not have competence to take cognizance of the applications,
considering that it was not the court of origin of the criminal case. The OSG points out that the trial court that
originally rendered the Decision in Criminal Case No. C-38340(91) was Branch 121 of the Caloocan City RTC.

The pertinent provision of the Probation Law is hereby quoted for reference:

SEC. 4. Grant of Probation. Subject to the provisions of this Decree, the trial court may, after it shall have
convicted and sentenced a defendant, and upon application by said defendant within the period for perfecting an
appeal, suspend the execution of the sentence and place the defendant on probation for such period and upon
such terms and conditions as it may deem best; Provided, That no application for probation shall be entertained or
granted if the defendant has perfected the appeal from the judgment of conviction. x x x x (Emphases supplied)

It is obvious from the foregoing provision that the law requires that an application for probation be filed with the
trial court that convicted and sentenced the defendant, meaning the court of origin. Here, the trial court that
originally convicted and sentenced Tecson et al. of the crime of homicide was Branch 121 not Branch 130 of the
Caloocan City RTC.[35] Neither the judge of Branch 130 in his Orders nor Tecson et al. in their pleadings have
presented any explanation or shown any special authority that would clarify why the Applications for Probation
had not been filed with or taken cognizance of by Caloocan City RTC Branch 121. While we take note that in a
previous case, the CA issued a Decision ordering the inhibition of Branch 121 Judge Adoracion G. Angeles from
hearing and deciding Criminal Case No. C-38340(91), the ruling was made specifically applicable to the trial of
petitioners therein, i.e. accused Concepcion, Ampil, Adriano, and S. Fernandez. [36]

Tecson et al. thus committed a fatal error when they filed their probation applications with Caloocan City RTC
Branch 130, and not with Branch 121. We stress that applicants are not at liberty to choose the forum in which
they may seek probation, as the requirement under Section 4 of the Probation law is substantive and not merely
procedural. Considering, therefore, that the probation proceedings were premised on an unwarranted exercise of
authority, we find that Caloocan City RTC Branch 130 never acquired jurisdiction over the case.

Second, the records of the case were still with the CA when Caloocan City RTC Branch 130 granted the probation
applications. Jurisdiction over a case is lodged with the court in which the criminal action has been properly
instituted.[37] If a party appeals the trial court's judgment or final order, [38] jurisdiction is transferred to the
appellate court. The execution of the decision is thus stayed insofar as the appealing party is concerned.[39] The
court of origin then loses jurisdiction over the entire case the moment the other party's time to appeal has
expired.[40] Any residual jurisdiction of the court of origin shall cease including the authority to order execution
pending appeal the moment the complete records of the case are transmitted to the appellate
court.[41] Consequently, it is the appellate court that shall have the authority to wield the power to hear, try, and
decide the case before it, as well as to enforce its decisions and resolutions appurtenant thereto. That power and
authority shall remain with the appellate court until it finally disposes of the case. Jurisdiction cannot be ousted by
any subsequent event, even if the nature of the incident would have prevented jurisdiction from attaching in the
first place.

According to Article 78 of the Revised Penal Code, "[n]o penalty shall be executed except by virtue of a final
judgment." A judgment of a court convicting or acquitting the accused of the offense charged becomes final under
any of the following conditions among others:[42]after the lapse of the period for perfecting an appeal; when the
accused waives the right to appeal; upon the grant of a withdrawal of an appeal; when the sentence has already
been partially or totally satisfied or served; or when the accused applies for probation. When the decision attains
finality, the judgment or final order is entered in the book of entries of judgments. [43] If the case was previously
appealed to the CA, a certified true copy of the judgment or final order must be attached to the original record,
which shall then be remanded to the clerk of the court from which the appeal was taken. [44] The court of origin
then reacquires jurisdiction over the case for appropriate action. It is during this time that the court of origin may
settle the matter of the execution of penalty or the suspension of the execution thereof, [45] including the convicts'
applications for probation.[46]

A perusal of the case records reveals that the CA had not yet relinquished its jurisdiction over the case when
Caloocan City RTC Branch 130 took cognizance of the Applications for Probation of Tecson et al. It shows that the
accused filed their respective applications[47]while a motion for reconsideration was still pending before the
CA[48] and the records were still with that court.[49] The CA settled the motion only upon issuing the Resolution
dated 30 August 2002 denying it, or about seven months after Tecson et al. had filed their applications with the
trial court.[50] In September 2002, or almost a month before the promulgation of the RTC Order dated 11 October
2002 granting the probation applications,[51] the OSG had filed Manifestations of Intent to File Petition for
Certiorari with the CA[52]and this Court.[53] Ultimately, the OSG assailed the CA judgments by filing before this Court
a Petition for Certiorari on 25 November 2002.[54] We noted the petition and then required respondents to file a
comment thereon.[55] After their submission of further pleadings and motions, we eventually required all parties to
file their consolidated memoranda.[56] The records of the case remained with the CA until they were elevated to
this Court in 2008.[57]

For the foregoing reasons, we find that RTC Branch 130 had no jurisdiction to act on the probation applications of
Tecson et al. It had neither the power nor the authority to suspend their sentence, place them on probation, order
their final discharge, and eventually declare the case against them terminated. This glaring jurisdictional faux pas is
a clear evidence of either gross ignorance of the law or an underhanded one-upmanship on the part of RTC Branch
130 or Tecson et al., or both to which this Court cannot give a judicial imprimatur.

In any event, Tecson et al. were ineligible to seek probation at the time they applied for it. Probation[58] is a
special privilege granted by the state to penitent qualified offenders who immediately admit their liability and thus
renounce their right to appeal. In view of their acceptance of their fate and willingness to be reformed, the state
affords them a chance to avoid the stigma of an incarceration record by making them undergo rehabilitation
outside of prison. Some of the major purposes of the law are to help offenders to eventually develop themselves
into law-abiding and self-respecting individuals, as well as to assist them in their reintegration with the community.

It must be reiterated that probation is not a right enjoyed by the accused. Rather, it is an act of grace or clemency
conferred by the state. In Francisco v. Court of Appeals,[59] this Court explained thus:

It is a special prerogative granted by law to a person or group of persons not enjoyed by others or by all.
Accordingly, the grant of probation rests solely upon the discretion of the court which is to be exercised primarily
for the benefit of organized society, and only incidentally for the benefit of the accused. The Probation Law should
not therefore be permitted to divest the state or its government of any of the latter's prerogatives, rights or
remedies, unless the intention of the legislature to this end is clearly expressed, and no person should benefit
from the terms of the law who is not clearly within them. (Emphases supplied)

The OSG questions the validity of the grant of the probation applications of Tecson et al.[60] It points out that when
they appealed to the CA their homicide conviction by the RTC, they thereby made themselves ineligible to seek
probation pursuant to Section 4 of Presidential Decree No. 968 (the Probation Law).

We refer again to the full text of Section 4 of the Probation Law as follows:

SEC. 4. Grant of Probation. Subject to the provisions of this Decree, the trial court may, after it shall have
convicted and sentenced a defendant, and upon application by said defendant within the period for perfecting an
appeal, suspend the execution of the sentence and place the defendant on probation for such period and upon
such terms and conditions as it may deem best; Provided, That no application for probation shall be entertained
or granted if the defendant has perfected the appeal from the judgment of conviction.

Probation may be granted whether the sentence imposes a term of imprisonment or a fine only. An application for
probation shall be filed with the trial court. The filing of the application shall be deemed a waiver of the right to
appeal.

An order granting or denying probation shall not be appealable. (Emphases supplied)

Indeed, one of the legal prerequisites of probation is that the offender must not have appealed the
conviction.[61] In the 2003 case Lagrosa v. Court of Appeals,[62] this Court was faced with the issue of whether a
convict may still apply for probation even after the trial court has imposed a non-probationable verdict, provided
that the CA later on lowers the original penalty to a sentence within the probationable limit. In that case, the trial
court sentenced the accused to a maximum term of eight years of prisión mayor, which was beyond the coverage
of the Probation Law. They only became eligible for probation after the CA reduced the maximum term of the
penalty imposed to 1 year, 8 months and 21 days of prisión correccional.

In deciding the case, this Court invoked the reasoning in Francisco and ruled that the accused was ineligible for
probation, since they had filed an appeal with the CA. In Francisco, we emphasized that Section 4 of the Probation
Law offers no ambiguity and does not provide for any distinction, qualification, or exception. What is clear is that
all offenders who previously appealed their cases, regardless of their reason for appealing, are disqualified by the
law from seeking probation. Accordingly, this Court enunciated in Lagrosa that the accused are disallowed from
availing themselves of the benefits of probation if they obtain a genuine opportunity to apply for probation only on
appeal as a result of the downgrading of their sentence from non-probationable to probationable.

While Lagrosa was promulgated three months after Caloocan City RTC Branch 130 issued its various Orders
discharging Tecson et al. from probation, the ruling in Lagrosa, however, was a mere reiteration of the reasoning
of this Court since the 1989 case Llamado v. Court of Appeals[63] and Francisco. The Applications for Probation of
Tecson et al., therefore, should not have been granted by RTC Branch 130, as they had appealed their conviction to
the CA. We recall that respondents were originally found guilty of homicide and sentenced to suffer 14 years, 8
months, and 1 day of reclusion temporal as maximum. Accordingly, even if the CA later downgraded their
conviction to slight physical injuries and sentenced them to 20 days of arresto menor, which made the sentence
fall within probationable limits for the first time, the RTC should have nonetheless found them ineligible for
probation at the time.

The actions of the trial court must thus be adjudged as an arbitrary and despotic use of authority, so gross that it
divested the court of its very power to dispense justice. As a consequence, the RTC Orders granting the
Applications for Probation of Tecson et al. and thereafter discharging them from their criminal liability must be
deemed to have been issued with grave abuse of discretion amounting to lack or excess of jurisdiction.

Whether for lack of jurisdiction or for grave abuse of discretion, amounting to lack or excess of jurisdiction, we
declare all orders, resolutions, and judgments of Caloocan City RTC Branch 130 in relation to the probation
applications of Tecson et al. null and void for having been issued without jurisdiction. We find our pronouncement
in Galman v. Sandiganbayan[64] applicable, viz:

A void judgment is, in legal effect, no judgment at all. By it no rights are divested. Through it, no rights can be
attained. Being worthless, all proceedings founded upon it are equally worthless. It neither binds nor bars anyone.
All acts performed under it and all claims flowing out of it are void. (Emphasis supplied)

The ultimate discharge of Tecson et al.

from probation did not totally extinguish
their criminal liability.

Accused Bantug asserts[65] that, in any event, their criminal liability has already been extinguished as a result of
their discharge from probation and the eventual termination of the criminal case against them by Caloocan City
RTC Branch 130. To support his argument, he cites the following provision of the Revised Penal Code:

ARTICLE 89. How Criminal Liability is Totally Extinguished. Criminal liability is totally extinguished:

1. By the death of the convict, as to the personal penalties; and as to pecuniary penalties, liability therefor is
extinguished only when the death of the offender occurs before final judgment.
2. By service of the sentence.
3. By amnesty, which completely extinguishes the penalty and all its effects.
4. By absolute pardon.
5. By prescription of the crime.
6. By prescription of the penalty.
7. By the marriage of the offended woman, as provided in article 344 of this Code. (Emphasis supplied)

As previously discussed, a void judgment cannot be the source of legal rights; legally speaking, it is as if no
judgment had been rendered at all. Considering our annulment of the Orders of Caloocan City RTC Branch 130 in
relation to the probation proceedings, respondents cannot claim benefits that technically do not exist.

In any event, Tecson et al. cannot invoke Article 89 of the Revised Penal Code, as we find it inapplicable to this
case. One of the hallmarks of the Probation Law is precisely to "suspend the execution of the sentence,"[66] and not
to replace the original sentence with another, as we pointed out in our discussion in Baclayon v. Mutia:[67]

An order placing defendant on "probation" is not a "sentence" but is rather in effect a suspension of the
imposition of sentence. It is not a final judgment but is rather an "interlocutory judgment" in the nature of a
conditional order placing the convicted defendant under the supervision of the court for his reformation, to be
followed by a final judgment of discharge, if the conditions of the probation are complied with, or by a final
judgment of sentence if the conditions are violated. (Emphases supplied)

Correspondingly, the criminal liability of Tecson et al. remains.

In light of our recent Decision in

Colinares v. People, Tecson et al.
may now reapply for probation.

Very recently, in Colinares v. People,[68] we revisited our ruling in Francisco and modified our pronouncements
insofar as the eligibility for probation of those who appeal their conviction is concerned. Through a majority vote
of 9-6, the Court En Banc in effect abandoned Lagrosa and settled the following once and for all:[69]

Secondly, it is true that under the probation law the accused who appeals "from the judgment of conviction" is
disqualified from availing himself of the benefits of probation. But, as it happens, two judgments of conviction
have been meted out to Arnel: one, a conviction for frustrated homicide by the regional trial court, now set aside;
and, two, a conviction for attempted homicide by the Supreme Court.

If the Court chooses to go by the dissenting opinion's hard position, it will apply the probation law on Arnel based
on the trial court's annulled judgment against him. He will not be entitled to probation because of the severe
penalty that such judgment imposed on him. More, the Supreme Court's judgment of conviction for a lesser
offense and a lighter penalty will also have to bend over to the trial court's judgment even if this has been found in
error. And, worse, Arnel will now also be made to pay for the trial court's erroneous judgment with the forfeiture
of his right to apply for probation. Ang kabayo ang nagkasala, ang hagupit ay sa kalabaw(the horse errs, the
carabao gets the whip). Where is justice there?

The dissenting opinion also expresses apprehension that allowing Arnel to apply for probation would dilute the
ruling of this Court in Francisco v. Court of Appeals that the probation law requires that an accused must not have
appealed his conviction before he can avail himself of probation. But there is a huge difference
between Francisco and this case.

xxxx

Here, however, Arnel did not appeal from a judgment that would have allowed him to apply for probation. He
did not have a choice between appeal and probation. He was not in a position to say, "By taking this appeal, I
choose not to apply for probation." The stiff penalty that the trial court imposed on him denied him that
choice. Thus, a ruling that would allow Arnel to now seek probation under this Court's greatly diminished
penalty will not dilute the sound ruling in Francisco.It remains that those who will appeal from judgments of
conviction, when they have the option to try for probation, forfeit their right to apply for that privilege.

xxxx
In a real sense, the Court's finding that Arnel was guilty, not of frustrated homicide, but only of attempted
homicide, is an original conviction that for the first time imposes on him a probationable penalty. Had the RTC
done him right from the start, it would have found him guilty of the correct offense and imposed on him the right
penalty of two years and four months maximum. This would have afforded Arnel the right to apply for probation.

The Probation Law never intended to deny an accused his right to probation through no fault of his. The
underlying philosophy of probation is one of liberality towards the accused. Such philosophy is not served by a
harsh and stringent interpretation of the statutory provisions. As Justice Vicente V. Mendoza said in his dissent
in Francisco, the Probation Law must not be regarded as a mere privilege to be given to the accused only where
it clearly appears he comes within its letter; to do so would be to disregard the teaching in many cases that the
Probation Law should be applied in favor of the accused not because it is a criminal law but to achieve its
beneficent purpose.

xxxx

At any rate, what is clear is that, had the RTC done what was right and imposed on Arnel the correct penalty of
two years and four months maximum, he would have had the right to apply for probation. No one could say with
certainty that he would have availed himself of the right had the RTC done right by him. The idea may not even
have crossed his mind precisely since the penalty he got was not probationable.

The question in this case is ultimately one of fairness. Is it fair to deny Arnel the right to apply for probation
when the new penalty that the Court imposes on him is, unlike the one erroneously imposed by the trial court,
subject to probation? (Emphases supplied)

In our Decision, we set aside the RTC and the CA judgments and found Tecson et al. ultimately liable for the crime
of reckless imprudence resulting in homicide. Pursuant to Article 365 of the Revised Penal Code, the offense is
punishable by arresto mayor in its maximum period (from 4 months and 1 day to 6 months) to prisión
correccional in its medium period (from 2 years, 4 months, and 1 day to 4 years and 2 months). Considering that
the new ruling in Colinares is more favorable to Tecson et al., we rule that they are now eligible to apply for
probation. Since Fidelito Dizon (Dizon) was convicted of the same crime, we hereby clarify that Dizon is also eligible
for probation.

While we cannot recognize the validity of the Orders of RTC Branch 130, which granted the Applications for
Probation, we cannot disregard the fact that Tecson et al. have fulfilled the terms and conditions of their previous
probation program and have eventually been discharged therefrom. Thus, should they reapply for probation, the
trial court may, at its discretion, consider their antecedent probation service in resolving whether to place them
under probation at this time and in determining the terms, conditions, and period thereof.

Final clarificatory matters

We now take this opportunity to correct an unintentional typographical error in the minimum term of the penalty
imposed on the accused Dizon and Tecson et al. While this issue was not raised by any of the parties before us, this
Court deems it proper to discuss the matter ex proprio motu in the interest of justice. In the first paragraph of the
dispositive portion of our Decision dated 1 February 2012, the fourth sentence reads as follows:

They are hereby sentenced to suffer an indeterminate prison term of four (4) months and one (1) day of arresto
mayor, as minimum, to four (4) years and two (2) months of prisión correccional, as maximum.

As we had intended to impose on the accused the maximum term of the "penalty next lower" than that prescribed
by the Revised Penal Code for the offense of reckless imprudence resulting in homicide, in accordance with the
Indeterminate Sentence Law (ISL),[70] the phrase "and one (1) day," which had been inadvertently added, must be
removed. Consequently, in the first paragraph of the dispositive portion, the fourth sentence should now read as
follows:

They are hereby sentenced to suffer an indeterminate prison term of four (4) months of arresto mayor, as
minimum, to four (4) years and two (2) months of prisión correccional, as maximum.

In this instance, we further find it important to clarify the accessory penalties inherent to the principal penalty
imposed on Dizon and Tecson et al.

By operation of Articles 40 to 45 and 73 of the Revised Penal Code, a corresponding accessory penalty
automatically attaches every time a court lays down a principal penalty outlined in Articles 25 and 27
thereof.[71] The applicable accessory penalty is determined by using as reference the principal penalty imposed by
the court before the prison sentence is computed in accordance with the ISL.[72]This determination is made in
spite of the two classes of penalties mentioned in an indeterminate sentence. It must be emphasized that the
provisions on the inclusion of accessory penalties specifically allude to the actual "penalty"[73] imposed, not to the
"prison sentence"[74] set by a court. We believe that the ISL did not intend to have the effect of imposing on the
convict two distinct sets of accessory penalties for the same offense.[75] The two penalties are only relevant insofar
as setting the minimum imprisonment period is concerned, after which the convict may apply for parole and
eventually seek the shortening of the prison term.[76]

Under Article 365 of the Revised Penal Code, the prescribed penalty for the crime of reckless imprudence resulting
in homicide is arresto mayor in its maximum period to prisión correccional in its medium period. As this provision
grants courts the discretion to lay down a penalty without regard to the presence of mitigating and aggravating
circumstances, the imposable penalty must also be within the aforementioned range.[77] Hence, before applying
the ISL, we ultimately imposed on Dizon and Tecson et al. the actual (straight) penalty[78] of four years and two
months of prisión correccional.[79] Pursuant to Article 43 of the Revised Penal Code, the penalty of prisión
correccional automatically carries with it[80] the following accessory penalties:

ARTICLE 43. Prisión Correccional Its accessory penalties. The penalty of prisión correccional shall carry with it that
of suspension from public office, from the right to follow a profession or calling, and that of perpetual special
disqualification from the right of suffrage, if the duration of said imprisonment shall exceed eighteen months. The
offender shall suffer the disqualification provided in this article although pardoned as to the principal penalty,
unless the same shall have been expressly remitted in the pardon.

The duration of their suspension shall be the same as that of their principal penalty sans the ISL; that is, for four
years and two months[81] or until they have served their sentence in accordance with law. Their suspension takes
effect immediately, once the judgment of conviction becomes final. [82]

We further point out that if the length of their imprisonment exceeds 18 months, they shall furthermore suffer
a perpetual special disqualification from the right of suffrage. Under Article 32 of the Revised Penal Code, if this
accessory penalty attaches, it shall forever deprive them of the exercise of their right (a) to vote in any popular
election for any public office; (b) to be elected to that office; and (c) to hold any public office. [83] Any public office
that they may be holding becomes vacant upon finality of the judgment.[84] The aforementioned accessory
penalties can only be wiped out if expressly remitted in a pardon. [85]

Of course, the aforementioned accessory penalties are without prejudice to a grant of probation, should the trial
court find them eligible therefor. As we explained in Baclayon,[86] the grant of probation suspends the execution of
the principal penalty of imprisonment, as well as that of the accessory penalties. We have reiterated this point
in Moreno v. Commission on Elections:[87]
In Baclayon v. Mutia, the Court declared that an order placing defendant on probation is not a sentence but is
rather, in effect, a suspension of the imposition of sentence. We held that the grant of probation to petitioner
suspended the imposition of the principal penalty of imprisonment, as well as the accessory penalties of
suspension from public office and from the right to follow a profession or calling, and that of perpetual special
disqualification from the right of suffrage. We thus deleted from the order granting probation the paragraph which
required that petitioner refrain from continuing with her teaching profession.

Applying this doctrine to the instant case, the accessory penalties of suspension from public office, from the
right to follow a profession or calling, and that of perpetual special disqualification from the right of suffrage,
attendant to the penalty of arresto mayor in its maximum period to prisión correccional in its minimum
period imposed upon Moreno were similarly suspended upon the grant of probation.

It appears then that during the period of probation, the probationer is not even disqualified from running for a
public office because the accessory penalty of suspension from public office is put on hold for the duration of
the probation. x x x x. During the period of probation, the probationer does not serve the penalty imposed upon
him by the court but is merely required to comply with all the conditions prescribed in the probation order.

WHEREFORE, premises considered, the Motion for Partial Reconsideration of petitioner Gerarda H. Villa in
connection with G.R. Nos. 178057 & 178080 is hereby DENIED. The Motion for Reconsideration filed by the Office
of the Solicitor General concerning G.R. Nos. 155101 and 154954 is also DENIED.

The respective Motions for Clarification or Reconsideration of Antonio Mariano Almeda, Junel Anthony D. Ama,
Renato Bantug, Jr., and Vincent Tecson are likewise DENIED. In light of the finding that Caloocan City Regional Trial
Court Branch 130 acted without or in excess of its jurisdiction in taking cognizance of the aforementioned
Applications for Probation, we hereby ANNUL the entire probation proceedings and SET ASIDE all orders,
resolutions, or judgments issued in connection thereto. We, however, CLARIFY that Antonio Mariano Almeda,
Junel Anthony D. Ama, Renato Bantug, Jr., Vincent Tecson, and Fidelito Dizon are eligible to apply or reapply for
probation in view of our recent ruling in Colinares v. People of the Philippines,[88] without prejudice to their
remaining civil liability, if any.

Furthermore, we issue a CORRECTION of the dispositive portion of our Decision dated 1 February 2012 and hereby
delete the phrase "and one (1) day" located in the fourth sentence of the first paragraph thereof. The sentence
shall now read as follows: "They are hereby sentenced to suffer an indeterminate prison term of four (4) months
of arresto mayor, as minimum, to four (4) years and two (2) months of prisión correccional, as maximum."

SO ORDERED.

SECOND DIVISION

G.R. No. L-69809 October 16, 1986

EDGARDO A. GAANAN, petitioner,

vs.
INTERMEDIATE APPELLATE COURT and PEOPLE OF THE PHILIPPINES, respondents.

GUTIERREZ, JR., J.:

This petition for certiorari asks for an interpretation of Republic Act (RA) No. 4200, otherwise known as the Anti-
Wiretapping Act, on the issue of whether or not an extension telephone is among the prohibited devices in Section
1 of the Act, such that its use to overhear a private conversation would constitute unlawful interception of
communications between the two parties using a telephone line.

The facts presented by the People and narrated in the respondent court's decision are not disputed by the
petitioner.

In the morning of October 22, 1975, complainant Atty. Tito Pintor and his client Manuel
Montebon were in the living room of complainant's residence discussing the terms for the
withdrawal of the complaint for direct assault which they filed with the Office of the City Fiscal of
Cebu against Leonardo Laconico. After they had decided on the proposed conditions,
complainant made a telephone call to Laconico (tsn, August 26, 1981, pp. 3-5).

That same morning, Laconico telephoned appellant, who is a lawyer, to come to his office and
advise him on the settlement of the direct assault case because his regular lawyer, Atty. Leon
Gonzaga, went on a business trip. According to the request, appellant went to the office of
Laconico where he was briefed about the problem. (Exhibit 'D', tsn, April 22, 1982, pp. 4-5).

When complainant called up, Laconico requested appellant to secretly listen to the telephone
conversation through a telephone extension so as to hear personally the proposed conditions for
the settlement. Appellant heard complainant enumerate the following conditions for withdrawal
of the complaint for direct assault.

(a) the P5,000.00 was no longer acceptable, and that the figure had been increased to P8,000.00.
A breakdown of the P8,000.00 had been made together with other demands, to wit: (a)
P5,000.00 no longer for the teacher Manuel Montebon, but for Atty. Pintor himself in persuading
his client to withdraw the case for Direct Assault against Atty. Laconico before the Cebu City
Fiscal's Office;

(b) Public apology to be made by Atty. Laconico before the students of Don Bosco Technical High
School;

(c) Pl,000.00 to be given to the Don Bosco Faculty club;

(d) transfer of son of Atty. Laconico to another school or another section of Don Bosco Technical
High School;

(e) Affidavit of desistance by Atty. Laconico on the Maltreatment case earlier filed against
Manuel Montebon at the Cebu City Fiscal's Office, whereas Montebon's affidavit of desistance on
the Direct Assault Case against Atty. Laconico to be filed later;

(f) Allow Manuel Montebon to continue teaching at the Don Bosco Technical School;

(g) Not to divulge the truth about the settlement of the Direct Assault Case to the mass media;

(h) P2,000.00 attorney s fees for Atty. Pintor. (tsn, August 26, 1981, pp. 47-48).

Twenty minutes later, complainant called up again to ask Laconico if he was agreeable to the
conditions. Laconico answered 'Yes'. Complainant then told Laconico to wait for instructions on
where to deliver the money. (tsn, March 10, 1983, pp. 2-12).
 Complainant called up again and instructed Laconico to give the money to his wife at the office of
the then Department of Public Highways. Laconico who earlier alerted his friend Colonel Zulueta
of the Criminal Investigation Service of the Philippine Constabulary, insisted that complainant
himself should receive the money. (tsn, March 10, 1982, pp. 26-33). When he received the
money at the Igloo Restaurant, complainant was arrested by agents of the Philippine
Constabulary.

Appellant executed on the following day an affidavit stating that he heard complainant demand
P8,000.00 for the withdrawal of the case for direct assault. Laconico attached the affidavit of
appellant to the complainant for robbery/extortion which he filed against complainant. Since
appellant listened to the telephone conversation without complainant's consent, complainant
charged appellant and Laconico with violation of the Anti-Wiretapping Act.

After trial on the merits, the lower court, in a decision dated November 22, 1982, found both Gaanan and Laconico
guilty of violating Section 1 of Republic Act No. 4200. The two were each sentenced to one (1) year imprisonment
with costs. Not satisfied with the decision, the petitioner appealed to the appellate court.

On August 16, 1984, the Intermediate Appellate Court affirmed the decision of the trial court, holding that the
communication between the complainant and accused Laconico was private in nature and, therefore, covered by
Rep. Act No. 4200; that the petitioner overheard such communication without the knowledge and consent of the
complainant; and that the extension telephone which was used by the petitioner to overhear the telephone
conversation between complainant and Laconico is covered in the term "device' as provided in Rep. Act No. 4200.

In this petition for certiorari, the petitioner assails the decision of the appellate court and raises the following
issues; (a) whether or not the telephone conversation between the complainant and accused Laconico was private
in nature; (b) whether or not an extension telephone is covered by the term "device or arrangement" under Rep.
Act No. 4200; (c) whether or not the petitioner had authority to listen or overhear said telephone conversation and
(d) whether or not Rep. Act No. 4200 is ambiguous and, therefore, should be construed in favor of the petitioner.

Section 1 of Rep. Act No. 4200 provides:

Section 1. It shall be unlawful for any person, not being authorized by all the parties to any
private communication or spoken word, to tap any wire or cable or by using any other device or
arrangement, to secretly overhear, intercept, or record such communication or spoken word by
using a device commonly known as a dictaphone or dictagraph or detectaphone or walkie-talkie
or tape-recorder, or however otherwise described:

It shall be unlawful for any person, be he a participant or not in the act or acts penalized in the
next preceeding sentence, to knowingly possess any tape record, wire record, disc record, or any
other such record, or copies thereof, of any communication or spoken word secured either
before or after the effective date of this Act in the manner prohibited by this law; or to replay the
same for any other person or persons; or to communicate the contents thereof, either verbally
or in writing, or to furnish transcriptions thereof, whether complete or partial, to any other
person: Provided, that the use of such record or any copies thereof as evidence in any civil,
criminal investigation or trial of offenses mentioned in Section 3 hereof, shall not be covered by
this prohibition.

We rule for the petitioner.

We are confronted in this case with the interpretation of a penal statute and not a rule of evidence. The issue is
not the admissibility of evidence secured over an extension line of a telephone by a third party. The issue is
whether or not the person called over the telephone and his lawyer listening to the conversation on an extension
line should both face prison sentences simply because the extension was used to enable them to both listen to an
alleged attempt at extortion.

There is no question that the telephone conversation between complainant Atty. Pintor and accused Atty.
Laconico was "private" in the sense that the words uttered were made between one person and another as
distinguished from words between a speaker and a public. It is also undisputed that only one of the parties gave
the petitioner the authority to listen to and overhear the caller's message with the use of an extension telephone
line. Obviously, complainant Pintor, a member of the Philippine bar, would not have discussed the alleged demand
for an P8,000.00 consideration in order to have his client withdraw a direct assault charge against Atty. Laconico
filed with the Cebu City Fiscal's Office if he knew that another lawyer was also listening. We have to consider,
however, that affirmance of the criminal conviction would, in effect, mean that a caller by merely using a
telephone line can force the listener to secrecy no matter how obscene, criminal, or annoying the call may be. It
would be the word of the caller against the listener's.

Because of technical problems caused by the sensitive nature of electronic equipment and the extra heavy loads
which telephone cables are made to carry in certain areas, telephone users often encounter what are called
"crossed lines". An unwary citizzen who happens to pick up his telephone and who overhears the details of a crime
might hesitate to inform police authorities if he knows that he could be accused under Rep. Act 4200 of using his
own telephone to secretly overhear the private communications of the would be criminals. Surely the law was
never intended for such mischievous results.

The main issue in the resolution of this petition, however, revolves around the meaning of the phrase "any other
device or arrangement." Is an extension of a telephone unit such a device or arrangement as would subject the
user to imprisonment ranging from six months to six years with the accessory penalty of perpetual absolute
disqualification for a public officer or deportation for an alien? Private secretaries with extension lines to their
bosses' telephones are sometimes asked to use answering or recording devices to record business conversations
between a boss and another businessman. Would transcribing a recorded message for the use of the boss be a
proscribed offense? or for that matter, would a "party line" be a device or arrangement under the law?

The petitioner contends that telephones or extension telephones are not included in the enumeration of
"commonly known" listening or recording devices, nor do they belong to the same class of enumerated electronic
devices contemplated by law. He maintains that in 1964, when Senate Bill No. 9 (later Rep. Act No. 4200) was
being considered in the Senate, telephones and extension telephones were already widely used instruments,
probably the most popularly known communication device.

Whether or not listening over a telephone party line would be punishable was discussed on the floor of the Senate.
Yet, when the bill was finalized into a statute, no mention was made of telephones in the enumeration of devices
"commonly known as a dictaphone or dictagraph, detectaphone or walkie talkie or tape recorder or however
otherwise described." The omission was not a mere oversight. Telephone party lines were intentionally deleted
from the provisions of the Act.

The respondent People argue that an extension telephone is embraced and covered by the term "device" within
the context of the aforementioned law because it is not a part or portion of a complete set of a telephone
apparatus. It is a separate device and distinct set of a movable apparatus consisting of a wire and a set of
telephone receiver not forming part of a main telephone set which can be detached or removed and can be
transferred away from one place to another and to be plugged or attached to a main telephone line to get the
desired communication corning from the other party or end.

The law refers to a "tap" of a wire or cable or the use of a "device or arrangement" for the purpose of secretly
overhearing, intercepting, or recording the communication. There must be either a physical interruption through a
wiretap or the deliberate installation of a device or arrangement in order to overhear, intercept, or record the
spoken words.

An extension telephone cannot be placed in the same category as a dictaphone, dictagraph or the other devices
enumerated in Section 1 of RA No. 4200 as the use thereof cannot be considered as "tapping" the wire or cable of
a telephone line. The telephone extension in this case was not installed for that purpose. It just happened to be
there for ordinary office use. It is a rule in statutory construction that in order to determine the true intent of the
legislature, the particular clauses and phrases of the statute should not be taken as detached and isolated
expressions, but the whole and every part thereof must be considered in fixing the meaning of any of its parts. (see
Commissioner of Customs v. Esso Estandard Eastern, Inc., 66 SCRA 113,120).

In the case of Empire Insurance Com any v. Rufino (90 SCRA 437, 443-444), we ruled:

Likewise, Article 1372 of the Civil Code stipulates that 'however general the terms of a contract
may be, they shall not be understood to comprehend things that are distinct and cases that are
different from those upon which the parties intended to agree.' Similarly, Article 1374 of the
same Code provides that 'the various stipulations of a contract shall be interpreted together,
attributing to the doubtful ones that sense which may result from all of them taken jointly.

xxx xxx xxx

Consequently, the phrase 'all liabilities or obligations of the decedent' used in paragraph 5(c) and
7(d) should be then restricted only to those listed in the Inventory and should not be construed
as to comprehend all other obligations of the decedent. The rule that 'particularization followed
by a general expression will ordinarily be restricted to the former' is based on the fact in human
experience that usually the minds of parties are addressed specially to the particularization, and
that the generalities, though broad enough to comprehend other fields if they stood alone, are
used in contemplation of that upon which the minds of the parties are centered. (Hoffman v.
Eastern Wisconsin R., etc., Co., 134 Wis. 603, 607, 115 NW 383, cited in Francisco, Revised Rules
of Court (Evidence), 1973 ed, pp. 180-181).

Hence, the phrase "device or arrangement" in Section 1 of RA No. 4200, although not exclusive to that enumerated
therein, should be construed to comprehend instruments of the same or similar nature, that is, instruments the
use of which would be tantamount to tapping the main line of a telephone. It refers to instruments whose
installation or presence cannot be presumed by the party or parties being overheard because, by their very nature,
they are not of common usage and their purpose is precisely for tapping, intercepting or recording a telephone
conversation.

An extension telephone is an instrument which is very common especially now when the extended unit does not
have to be connected by wire to the main telephone but can be moved from place ' to place within a radius of a
kilometer or more. A person should safely presume that the party he is calling at the other end of the line probably
has an extension telephone and he runs the risk of a third party listening as in the case of a party line or a
telephone unit which shares its line with another. As was held in the case of Rathbun v. United States (355, U.S.
107, 2 L Ed 2d 137-138):

Common experience tells us that a call to a particular telephone number may cause the bell to
ring in more than one ordinarily used instrument. Each party to a telephone conversation takes
the risk that the other party may have an extension telephone and may allow another to
overhear the conversation. When such takes place there has been no violation of any privacy of
which the parties may complain. Consequently, one element of 605, interception, has not
occurred.
In the same case, the Court further ruled that the conduct of the party would differ in no way if instead of
repeating the message he held out his hand-set so that another could hear out of it and that there is no distinction
between that sort of action and permitting an outsider to use an extension telephone for the same purpose.

Furthermore, it is a general rule that penal statutes must be construed strictly in favor of the accused. Thus, in case
of doubt as in the case at bar, on whether or not an extension telephone is included in the phrase "device or
arrangement", the penal statute must be construed as not including an extension telephone. In the case of People
v. Purisima, 86 SCRA 542, 562, we explained the rationale behind the rule:

American jurisprudence sets down the reason for this rule to be the tenderness of the law of the
rights of individuals; the object is to establish a certain rule by conformity to which mankind
would be safe, and the discretion of the court limited. (United States v. Harris, 177 US 305, 44 L
Ed 780, 20 S Ct 609; Braffith v. Virgin Islands (CA3) 26 F2d 646; Caudill v. State, 224 Ind 531, 69
NE2d; Jennings v. Commonwealth, 109 VA 821,63 SE 1080, all cited in 73 Am Jur 2d 452). The
purpose is not to enable a guilty person to escape punishment through a technicality but to
provide a precise definition of forbidden acts." (State v. Zazzaro, 20 A 2d 737, quoted in Martin's
Handbook on Statutory Construction, Rev. Ed. pp. 183-184).

In the same case of Purisima, we also ruled that on the construction or interpretation of a legislative measure, the
primary rule is to search for and determine the intent and spirit of the law. A perusal of the Senate Congressional
Records will show that not only did our lawmakers not contemplate the inclusion of an extension telephone as a
prohibited device or arrangement" but of greater importance, they were more concerned with penalizing the act
of recording than the act of merely listening to a telephone conversation.

xxx xxx xxx

Senator Tañada. Another possible objection to that is entrapment which is

certainly objectionable. It is made possible by special amendment which Your
Honor may introduce.

Senator Diokno.Your Honor, I would feel that entrapment would be less

possible with the amendment than without it, because with the amendment
the evidence of entrapment would only consist of government testimony as
against the testimony of the defendant. With this amendment, they would
have the right, and the government officials and the person in fact would have
the right to tape record their conversation.

Senator Tañada. In case of entrapment, it would be the government.

Senator Diokno. In the same way, under this provision, neither party could
record and, therefore, the court would be limited to saying: "Okay, who is more
credible, the police officers or the defendant?" In these cases, as experienced
lawyers, we know that the Court go with the peace offices.

(Congressional Record, Vol. 111, No. 33, p. 628, March 12, 1964).

xxx xxx xxx

Senator Diokno. The point I have in mind is that under these conditions, with
an agent outside listening in, he could falsify the testimony and there is no way
of checking it. But if you allow him to record or make a recording in any form of
 what is happening, then the chances of falsifying the evidence is not very
much.

Senator Tañada. Your Honor, this bill is not intended to prevent the
presentation of false testimony. If we could devise a way by which we could
prevent the presentation of false testimony, it would be wonderful. But what
this bill intends to prohibit is the use of tape record and other electronic
devices to intercept private conversations which later on will be used in court.

(Congressional Record, Vol. III, No. 33, March 12, 1964, p. 629).

It can be readily seen that our lawmakers intended to discourage, through punishment, persons such as
government authorities or representatives of organized groups from installing devices in order to gather evidence
for use in court or to intimidate, blackmail or gain some unwarranted advantage over the telephone users.
Consequently, the mere act of listening, in order to be punishable must strictly be with the use of the enumerated
devices in RA No. 4200 or others of similar nature. We are of the view that an extension telephone is not among
such devices or arrangements.

WHEREFORE, the petition is GRANTED. The decision of the then Intermediate Appellate Court dated August 16,
1984 is ANNULLED and SET ASIDE. The petitioner is hereby ACQUITTED of the crime of violation of Rep. Act No.
4200, otherwise known as the Anti-Wiretapping Act.

SO ORDERED.

FIRST DIVISION

[ G.R. No. 93833, September 28, 1995 ]

SOCORRO D. RAMIREZ, PETITIONER, VS. HONORABLE COURT OF APPEALS, AND ESTER S. GARCIA, RESPONDENTS.

DECISION

KAPUNAN, J.:

civil case for damages was filed by petitioner Socorro D. Ramirez in the Regional Trial Court of Quezon City alleging
that the private respondent, Ester S. Garcia, in a confrontation in the latter's office, allegedly vexed, insulted and
humiliated her in a "hostile and furious mood" and in a manner offensive to petitioner's dignity and personality,"
contrary to morals, good customs and public policy.[1]

In support of her claim, petitioner produced a verbatim transcript of the event and sought moral damages,
attorney's fees and other expenses of litigation in the amount of P610,000.00, in addition to costs, interests and
other reliefs awardable at the trial court's discretion. The transcript on which the civil case was based was culled
from a tape recording of the confrontation made by petitioner.[2]The transcript reads as follows:

Plaintiff Soccoro D. Ramirez (Chuchi) - Good afternoon M'am.

Defendant Ester S. Garcia (ESG) - Ano ba ang nangyari sa 'yo, nakalimot ka na kung paano ka napunta rito,
porke member ka na, magsumbong ka kung ano ang gagawin ko sa 'yo.

CHUCHI - Kasi, naka duty ako noon.

ESG - Tapos iniwan no. (Sic)

CHUCHI - Hindi m'am, pero ilan beses na nila akong binalikan, sabing ganoon -

ESG - Ito and (sic) masasabi ko sa 'yo, ayaw kung (sic) mag explain ka, kasi hanggang 10:00 p.m.,
kinabukasan hindi ka na pumasok. Ngayon ako ang babalik sa 'yo, nag-aaply ka sa States, nag-aapply ka sa review
mo, kung kakailanganin ang certification mo, kalimutan mo na kasi hindi ka sa akin makakahingi.

CHUCHI - Hindi M'am kasi ang ano ko talaga noon i-cocontinue ko up to 10:00 p.m.

ESG - Bastos ka, nakalimutan mo na kung paano ka pumasok dito sa hotel. Magsumbong ka sa Union
kung gusto mo. Nakalimutan mo na kung paano ka nakapasok dito "Do you think that on your own makakapasok
ka kung hindi ako. Panunumbvoyan na kita (Sinusumbatan na kita).

CHUCHI - Itutuloy ko na M'am sana ang duty ko.

ESG - Kaso ilang beses na akong binabalikan doon ng mga no (sic) ko.

ESG - Nakalimutan mo na ba kung paano ka pumasok sa hotel, kung on your own merit alam ko
naman kung gaano ka "ka bobo" mo. Marami ang nag-aaply alam kong hindi ka papasa.

CHUCHI - Kumuha kami ng exam noon.

ESG - Oo, pero hindi ka papasa.

CHUCHI - Eh, bakit ako ang nakuha ni Dr. Tamayo

ESG - Kukunin ka kasi ako.

CHUCHI - Eh, di sana

ESG - Huwag mong ipagmalaki na may utak ka kasi wala kang utak. Akala mo ba makukuha ka dito
kung hindi ako.

CHUCHI - Mag-eexplain ako.

ESG - Huwag na, hindi ako mag-papa-explain sa 'yo, makaalala ka kung paano ka puma-rito. "Putang
ina" sasabi-sabihin mo kamag-anak ng nanay at tatay mo ang mga magulang ko.

ESG - Wala na akong pakialam, dahil nandito ka sa loob, nasa labas ka puwede ka ng hindi pumasok,
okey yan nasaloob ka umalis ka doon.

CHUCHI - Kasi M'am, binbalikan ako ng mga taga Union.

ESG - Nandiyan na rin ako, pero huwag mong kalimutan na hindi ka makakapasok kung hindi ako. Kung
hindi mo kinikilala yan okey lang sa akin, dahil tapos ka na.

CHUCHI - Ina-ano ko m'am na utang na loob.

ESG - Huwag na lang, hindi mo utang na loob, kasi kung baga sa no, nilapastanganan mo ako.

CHUCHI - Paano kita nilapastanganan?

ESG - Mabuti pa lumabas ka na. Hindi na ako makikipagusap sa 'yo. Lumabas ka na. Magsumbong
ka.[3]

As a result of petitioner's recording of the event and alleging that the said act of secretly taping the confrontation
was illegal, private respondent filed a criminal case before the Regional Trial Court of Pasay City for violation of
Republic Act 4200, entitled "An Act to prohibit and penalize wire tapping and other related violations of private
communication, and other purposes." An information charging petitioner of violation of the said Act, dated
October 6, 1988 is quoted herewith:

INFORMATION

The Undersigned Assistant City Fiscal Accuses Socorro D. Ramirez of Violation of Republic Act No. 4200, committed
as follows:

That on or about the 22nd day of February 1988, in Pasay City Metro Manila Philippines, and within the jurisdiction
of this honorable court, the above-named accused, Socorro D. Ramirez not being authorized by Ester S. Garcia to
record the latter's conversation with said accused, did then and there wilfully, unlawfully and feloniously, with the
use of a tape recorder secretly record the said conversation and thereafter communicate in writing the contents of
the said recording to other person.

Contrary to law.

Pasay City, Metro Manila, September 16, 1988.

MARIANO M. CUNETA
Asst. City Fiscal

Upon arraignment, in lieu of a plea, petitioner filed a Motion to Quash the Information on the ground that the
facts charged do not constitute an offense, particularly a violation of R.A. 4200. In an order dated May 3, 1989, the
trial court granted the Motion to Quash, agreeing with petitioner that 1) the facts charged do not constitute an
offense under R.A. 4200; and that 2) the violation punished by R.A. 4200 refers to a the taping of a communication
by a person other than a participant to the communication.[4]

From the trial court's Order, the private respondent filed a Petition for Review on Certiorari with this Court, which
forthwith referred the case to the Court of Appeals in a Resolution (by the First Division) of June 19, 1989.

On February 9, 1990, respondent Court of Appeals promulgated its assailed Decision declaring the trial court's
order of May 3, 1989 null and void, and holding that:

"[T]he allegations sufficiently constitute an offense punishable under Section 1 of R.A. 4200. In thus quashing the
information based on the ground that the facts alleged do not constitute an offense, the respondent judge acted in
grave abuse of discretion correctible by certiorari."[5]

Consequently, on February 21, 1990, petitioner filed a Motion for Reconsideration which respondent Court of
Appeals denied in its Resolution[6] dated June 19, 1990. Hence, the instant petition.

Petitioner vigorously argues, as her "main and principal issue"[7] that the applicable provision of Republic Act 4200
does not apply to the taping of a private conversation by one of the parties to the conversation. She contends that
the provision merely refers to the unauthorized taping of a private conversation by a party other than those
involved in the communication.[8] In relation to this, petitioner avers that the substance or content of the
conversation must be alleged in the Information, otherwise the facts charged would not constitute a violation of
R.A. 4200.[9] Finally, petitioner argues that R.A. 4200 penalizes the taping of a "private communication," not a
"private conversation" and that consequently, her act of secretly taping her conversation with private respondent
was not illegal under the said act.[10]

We disagree.

First, legislative intent is determined principally from the language of a statute. Where the language of a statute is
clear and unambiguous, the law is applied according to its express terms, and interpretation would be resorted to
only where a literal interpretation would be either impossible[11] or absurd or would lead to an injustice[12].

Section 1 of R.A. 4200 entitled, "An Act to Prohibit and Penalize Wire Tapping and Other Related Violations of
Private Communication and Other Purposes," provides:

Section I. It shall be unlawful for any person, not being authorized by all the parties to any private communication
or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear,
intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or
dictagraph or detectaphone or walkie-talkie or tape recorder, or however otherwise described.

The aforestated provision clearly and unequivocally makes it illegal for any person, not authorized by all the parties
to any private communication to secretly record such communication by means of a tape recorder. The law makes
no distinction as to whether the party sought to be penalized by the statute ought to be a party other than or
different from those involved in the private communication. The statute's intent to penalize all persons
unauthorized to make such recording is underscored by the use of the qualifier "any". Consequently, as
respondent Court of Appeals correctly concluded, "even a (person) privy to a communication who records his
private conversation with another without the knowledge of the latter (will) qualify as a violator"[13] under this
provision of R.A. 4200.

A perusal of the Senate Congressional Records, moreover, supports the respondent court's conclusion that in
enacting R.A. 4200 our lawmakers indeed contemplated to make illegal, unauthorized tape recording of private
conversations or communications taken either by the parties themselves or by third persons. Thus:

xxx xxx xxx

Senator Tanada: That qualified only 'overhear'.

Senator Padilla: So that when it is intercepted or recorded, the element of secrecy would not appear to be
material. Now, suppose, Your Honor, the recording is not made by all the parties but by some parties and involved
not criminal cases that would be mentioned under section 3 but would cover, for example civil cases or special
proceedings whereby a recording is made not necessarily by all the parties but perhaps by some in an effort to
show the intent of the parties because the actuation of the parties prior, simultaneous even subsequent to the
contract or the act may be indicative of their intention. Suppose there is such a recording, would you say, Your
Honor, that the intention is to cover it within the purview of this bill or outside?

Senator Tanada: That is covered by the purview of this bill, Your Honor.

Senator Padilla: Even if the record should be used not in the prosecution of offense but as evidence to be used in
Civil Cases or special proceedings?

Senator Tanada: That is right. This is a complete ban on tape recorded conversations taken without the
authorization of all the parties.
Senator Padilla: Now, would that be reasonable, Your Honor?

Senator Tanada: I believe it is reasonable because it is not sporting to record the observation of one without his
knowing it and then using it against him. It is not fair, it is not sportsmanlike. If the purpose; Your honor, is to
record the intention of the parties. I believe that all the parties should know that the observations are being
recorded.

Senator Padilla: This might reduce the utility of recorders.

Senator Tanada: Well no. For example, I was to say that in meetings of the board of directors where a tape
recording is taken, there is no objection to this if all the parties know. It is but fair that the people whose remarks
and observations are being made should know that these are being recorded.

Senator Padilla: Now, I can understand.

Senator Tanada: That is why when we take statements of persons, we say: "Please be informed that whatever you
say here may be used against you." That is fairness and that is what we demand. Now, in spite of that warning, he
makes damaging statements against his own interest, well, he cannot complain any more. But if you are going to
take a recording of the observations and remarks of a person without him knowing that it is being taped or
recorded, without him knowing that what is being recorded may be used against him, I think it is unfair.

xxx xxx xxx

(Congressional Record, Vol. III, No. 31, p. 584, March 12, 1964)

Senator Diokno: Do you understand, Mr. Senator, that under Section I of the bill as now worded, if a party secretly
records a public speech, he would be penalized under Section I? Because the speech is public, but the recording is
done secretly.

Senator TANADA: Well, that particular aspect is not contemplated by the bill. It is the communication between
one person and another person - not between a speaker and a public.

xxx xxx xxx

(Congressional Record, Vol. III, No. 33, p. 626, March 12, 1964)

xxx xxx xxx

The unambiguity of the express words of the provision, taken together with the above-quoted deliberations from
the Congressional Record, therefore plainly supports the view held by the respondent court that the provision
seeks to penalize even those privy to the private communications. Where the law makes no distinctions, one does
not distinguish.

Second, the nature of the conversation is immaterial to a violation of the statute. The substance of the same need
not be specifically alleged in the information. What R.A. 4200 penalizes are the acts of secretly overhearing,
intercepting or recording private communications by means of the devices enumerated therein. The mere
allegation that an individual made a secret recording of a private communication by means of a tape recorder
would suffice to constitute an offense under Section 1 of R.A. 4200. As the Solicitor General pointed out in his
COMMENT before the respondent court: "Nowhere (in the said law) is it required that before one can be regarded
as a violator, the nature of the conversation, as well as its communication to a third person should be
professed."[14]

Finally, petitioner's contention that the phrase "private communication" in Section 1 of R.A. 4200 does not include
"private conversations" narrows the ordinary meaning of the word "communication" to a point of absurdity. The
word communicate comes from the latin wordcommunicare, meaning "to share or to impart." In its ordinary
signification, communication connotes the act of sharing or imparting, as in a conversation, [15] or signifies the
"process by which meanings or thoughts are shared between individuals through a common system of symbols (as
language signs or gestures)"[16] These definitions are broad enough to include verbal or non-verbal, written or
expressive communications of "meanings or thoughts" which are likely to include the emotionally - charged
exchange, on February 22, 1988, between petitioner and private respondent, in the privacy of the latter's office.
Any doubts about the legislative body's meaning of the phrase "private communication" are, furthermore, put to
rest by the fact that the terms "conversation" and "communication" were interchangeably used by Senator Tanada
in his Explanatory Note to the bill, quoted below:

"It has been said that innocent people have nothing to fear from their conversations being overheard. But this
statement ignores the usual nature of conversations as well as the undeniable fact that most, if not all, civilized
people have some aspects of their lives they do not wish to expose. Free conversations are often characterized by
exaggerations, obscenity, agreeable falsehoods, and the expression of anti-social desires of views not intended to
be taken seriously. The right to the privacy of communication, among others, has expressly been assured by our
Constitution. Needless to state here, the framers of our Constitution must have recognized the nature of
conversations between individuals and the significance of man's spiritual nature, of his feelings and of his intellect.
They must have known that part of the pleasures and satisfactions of life are to be found in the unaudited, and
free exchange of communication between individuals free from every unjustifiable intrusion by whatever
means."[17]

In Gaanan vs Intermediate Appellate Court[18] a case which dealt with the issue of telephone wiretapping, we held
that the use of a telephone extension for the purpose of overhearing a private conversation without authorization
did not violate R.A. 4200 because a telephone extension devise was neither among those devises enumerated in
Section 1 of the law nor was it similar to those "device(s) or arrangement(s)" enumerated therein, [19] following the
principle that "penal statutes must be construed strictly in favor of the accused." [20] The instant case turns on a
different note, because the applicable facts and circumstances pointing to a violation of R.A. 4200 suffer from no
ambiguity, and the statute itself explicitly mentions the unauthorized "recording" of private communications with
the use of tape-recorders as among the acts punishable.

WHEREFORE, because the law, as applied to the case at bench is clear and unambiguous and leaves us with no
discretion, the instant petition is hereby DENIED. The decision appealed from is AFFIRMED. Costs against
petitioner.

SO ORDERED.

SECOND DIVISION

[ G.R. No. 174629, February 14, 2008 ]

REPUBLIC OF THE PHILIPPINES, Represented by THE ANTI-MONEY LAUNDERING COUNCIL (AMLC), Petitioner, vs.
HON. ANTONIO M. EUGENIO, JR., AS PRESIDING JUDGE OF RTC, MANILA, BRANCH 34, PANTALEON ALVAREZ and
LILIA CHENG, Respondents.

DECISION

TINGA, J,:
The present petition for certiorari and prohibition under Rule 65 assails the orders and resolutions issued by two
different courts in two different cases. The courts and cases in question are the Regional Trial Court of Manila,
Branch 24, which heard SP Case No. 06-114200[1]and the Court of Appeals, Tenth Division, which heared CA-G.R. SP
No. 95198.[2] Both cases arose as part of the aftermath of the ruling of this Court in Agan v. PIATCO[3] nullifying the
concession agreement awarded to the Philippine International Airport Terminal Corporation (PIATCO) over the
Ninoy Aquino International Airport International Passenger Terminal 3 (NAIA 3) Project.

I.

Following the promulgation of Agan, a series of investigations concerning the award of the NAIA 3 contracts to
PIATCO were undertaken by the Ombudsman and the Compliance and Investigation Staff (CIS) of petitioner Anti-
Money Laundering Council (AMLC). On 24 May 2005, the Office of the Solicitor General (OSG) wrote the AMLC
requesting the latter's assistance "in obtaining more evidence to completely reveal the financial trail of corruption
surrounding the [NAIA 3] Project," and also noting that petitioner Republic of the Philippines was presently
defending itself in two international arbitration cases filed in relation to the NAIA 3 Project. [4] The CIS conducted an
intelligence database search on the financial transactions of certain individuals involved in the award, including
respondent Pantaleon Alvarez (Alvarez) who had been the Chairman of the PBAC Technical Committee, NAIA-IPT3
Project.[5] By this time, Alvarez had already been charged by the Ombudsman with violation of Section 3(j) of R.A.
No. 3019.[6] The search revealed that Alvarez maintained eight (8) bank accounts with six (6) different banks.[7]

On 27 June 2005, the AMLC issued Resolution No. 75, Series of 2005, [8] whereby the Council resolved to authorize
the Executive Director of the AMLC "to sign and verify an application to inquire into and/or examine the [deposits]
or investments of Pantaleon Alvarez, Wilfredo Trinidad, Alfredo Liongson, and Cheng Yong, and their related web
of accounts wherever these may be found, as defined under Rule 10.4 of the Revised Implementing Rules and
Regulations;" and to authorize the AMLC Secretariat "to conduct an inquiry into subject accounts once the
Regional Trial Court grants the application to inquire into and/or examine the bank accounts" of those four
individuals.[9] The resolution enumerated the particular bank accounts of Alvarez, Wilfredo Trinidad (Trinidad),
Alfredo Liongson (Liongson) and Cheng Yong which were to be the subject of the inquiry. [10] The rationale for the
said resolution was founded on the cited findings of the CIS that amounts were transferred from a Hong Kong bank
account owned by Jetstream Pacific Ltd. Account to bank accounts in the Philippines maintained by Liongson and
Cheng Yong.[11] The Resolution also noted that "[b]y awarding the contract to PIATCO despite its lack of financial
capacity, Pantaleon Alvarez caused undue injury to the government by giving PIATCO unwarranted benefits,
advantage, or preference in the discharge of his official administrative functions through manifest partiality,
evident bad faith, or gross inexcusable negligence, in violation of Section 3(e) of Republic Act No. 3019."[12]

Under the authority granted by the Resolution, the AMLC filed an application to inquire into or examine the
deposits or investments of Alvarez, Trinidad, Liongson and Cheng Yong before the RTC of Makati, Branch 138,
presided by Judge (now Court of Appeals Justice) Sixto Marella, Jr. The application was docketed as AMLC No. 05-
005.[13] The Makati RTC heard the testimony of the Deputy Director of the AMLC, Richard David C. Funk II, and
received the documentary evidence of the AMLC.[14] Thereafter, on 4 July 2005, the Makati RTC rendered an Order
(Makati RTC bank inquiry order) granting the AMLC the authority to inquire and examine the subject bank
accounts of Alvarez, Trinidad, Liongson and Cheng Yong, the trial court being satisfied that there existed
"[p]robable cause [to] believe that the deposits in various bank accounts, details of which appear in paragraph 1 of
the Application, are related to the offense of violation of Anti-Graft and Corrupt Practices Act now the subject of
criminal prosecution before the Sandiganbayan as attested to by the Informations, Exhibits C, D, E, F, and
G."[15] Pursuant to the Makati RTC bank inquiry order, the CIS proceeded to inquire and examine the deposits,
investments and related web accounts of the four.[16]

Meanwhile, the Special Prosecutor of the Office of the Ombudsman, Dennis Villa-Ignacio, wrote a letter dated 2
November 2005, requesting the AMLC to investigate the accounts of Alvarez, PIATCO, and several other entities
involved in the nullified contract. The letter adverted to probable cause to believe that the bank accounts "were
used in the commission of unlawful activities that were committed" in relation to the criminal cases then pending
before the Sandiganbayan.[17] Attached to the letter was a memorandum "on why the investigation of the
[accounts] is necessary in the prosecution of the above criminal cases before the Sandiganbayan." [18]

In response to the letter of the Special Prosecutor, the AMLC promulgated on 9 December 2005 Resolution No.
121 Series of 2005,[19]which authorized the executive director of the AMLC to inquire into and examine the
accounts named in the letter, including one maintained by Alvarez with DBS Bank and two other accounts in the
name of Cheng Yong with Metrobank. The Resolution characterized the memorandum attached to the Special
Prosecutor's letter as "extensively justif[ying] the existence of probable cause that the bank accounts of the
persons and entities mentioned in the letter are related to the unlawful activity of violation of Sections 3(g) and
3(e) of Rep. Act No. 3019, as amended."[20]

Following the December 2005 AMLC Resolution, the Republic, through the AMLC, filed an application [21] before the
Manila RTC to inquire into and/or examine thirteen (13) accounts and two (2) related web of accounts alleged as
having been used to facilitate corruption in the NAIA 3 Project. Among said accounts were the DBS Bank account of
Alvarez and the Metrobank accounts of Cheng Yong. The case was raffled to Manila RTC, Branch 24, presided by
respondent Judge Antonio Eugenio, Jr., and docketed as SP Case No. 06-114200.

On 12 January 2006, the Manila RTC issued an Order (Manila RTC bank inquiry order) granting the Ex
Parte Application expressing therein "[that] the allegations in said application to be impressed with merit, and in
conformity with Section 11 of R.A. No. 9160, as amended, otherwise known as the Anti-Money Laundering Act
(AMLA) of 2001 and Rules 11.1 and 11.2 of the Revised Implementing Rules and Regulations."[22] Authority was
thus granted to the AMLC to inquire into the bank accounts listed therein.

On 25 January 2006, Alvarez, through counsel, entered his appearance[23] before the Manila RTC in SP Case No. 06-
114200 and filed an Urgent Motion to Stay Enforcement of Order of January 12, 2006. [24] Alvarez alleged that he
fortuitously learned of the bank inquiry order, which was issued following an ex parte application, and he argued
that nothing in R.A. No. 9160 authorized the AMLC to seek the authority to inquire into bank accounts ex
parte.[25] The day after Alvarez filed his motion, 26 January 2006, the Manila RTC issued an Order [26] staying the
enforcement of its bank inquiry order and giving the Republic five (5) days to respond to Alvarez's motion.

The Republic filed an Omnibus Motion for Reconsideration[27] of the 26 January 2006 Manila RTC Order and
likewise sought to strike out Alvarez's motion that led to the issuance of said order. For his part, Alvarez filed a
Reply and Motion to Dismiss[28] the application for bank inquiry order. On 2 May 2006, the Manila RTC issued an
Omnibus Order[29] granting the Republic's Motion for Reconsideration, denying Alvarez's motion to dismiss and
reinstating "in full force and effect" the Order dated 12 January 2006. In the omnibus order, the Manila RTC
reiterated that the material allegations in the application for bank inquiry order filed by the Republic stood as "the
probable cause for the investigation and examination of the bank accounts and investments of the
respondents."[30]

Alvarez filed on 10 May 2006 an Urgent Motion[31] expressing his apprehension that the AMLC would immediately
enforce the omnibus order and would thereby render the motion for reconsideration he intended to file as moot
and academic; thus he sought that the Republic be refrained from enforcing the omnibus order in the meantime.
Acting on this motion, the Manila RTC, on 11 May 2006, issued an Order [32] requiring the OSG to file a
comment/opposition and reminding the parties that judgments and orders become final and executory upon the
expiration of fifteen (15) days from receipt thereof, as it is the period within which a motion for reconsideration
could be filed. Alvarez filed his Motion for Reconsideration[33] of the omnibus order on 15 May 2006, but the
motion was denied by the Manila RTC in an Order[34] dated 5 July 2006.

On 11 July 2006, Alvarez filed an Urgent Motion and Manifestation [35] wherein he manifested having received
reliable information that the AMLC was about to implement the Manila RTC bank inquiry order even though he
was intending to appeal from it. On the premise that only a final and executory judgment or order could be
executed or implemented, Alvarez sought that the AMLC be immediately ordered to refrain from enforcing the
Manila RTC bank inquiry order.
On 12 July 2006, the Manila RTC, acting on Alvarez's latest motion, issued an Order [36] directing the AMLC "to
refrain from enforcing the order dated January 12, 2006 until the expiration of the period to appeal, without any
appeal having been filed." On the same day, Alvarez filed a Notice of Appeal [37] with the Manila RTC.

On 24 July 2006, Alvarez filed an Urgent Ex Parte Motion for Clarification.[38] Therein, he alleged having learned
that the AMLC had began to inquire into the bank accounts of the other persons mentioned in the application for
bank inquiry order filed by the Republic.[39]Considering that the Manila RTC bank inquiry order was issued ex parte,
without notice to those other persons, Alvarez prayed that the AMLC be ordered to refrain from inquiring into any
of the other bank deposits and alleged web of accounts enumerated in AMLC's application with the RTC; and that
the AMLC be directed to refrain from using, disclosing or publishing in any proceeding or venue any information or
document obtained in violation of the 11 May 2006 RTC Order. [40]

On 25 July 2006, or one day after Alvarez filed his motion, the Manila RTC issued an Order [41] wherein it clarified
that "the Ex ParteOrder of this Court dated January 12, 2006 can not be implemented against the deposits or
accounts of any of the persons enumerated in the AMLC Application until the appeal of movant Alvarez is finally
resolved, otherwise, the appeal would be rendered moot and academic or even nugatory."[42] In addition, the
AMLC was ordered "not to disclose or publish any information or document found or obtained in [v]iolation of the
May 11, 2006 Order of this Court."[43] The Manila RTC reasoned that the other persons mentioned in AMLC's
application were not served with the court's 12 January 2006 Order. This 25 July 2006 Manila RTC Order is the first
of the four rulings being assailed through this petition.

In response, the Republic filed an Urgent Omnibus Motion for Reconsideration[44] dated 27 July 2006, urging that it
be allowed to immediately enforce the bank inquiry order against Alvarez and that Alvarez's notice of appeal be
expunged from the records since appeal from an order of inquiry is disallowed under the Anti money Laundering
Act (AMLA).

Meanwhile, respondent Lilia Cheng filed with the Court of Appeals a Petition for Certiorari, Prohibition and
Mandamus with Application for TRO and/or Writ of Preliminary Injunction [45] dated 10 July 2006, directed against
the Republic of the Philippines through the AMLC, Manila RTC Judge Eugenio, Jr. and Makati RTC Judge Marella, Jr..
She identified herself as the wife of Cheng Yong[46] with whom she jointly owns a conjugal bank account with
Citibank that is covered by the Makati RTC bank inquiry order, and two conjugal bank accounts with Metrobank
that are covered by the Manila RTC bank inquiry order. Lilia Cheng imputed grave abuse of discretion on the part
of the Makati and Manila RTCs in granting AMLC's ex parte applications for a bank inquiry order, arguing among
others that the ex parte applications violated her constitutional right to due process, that the bank inquiry order
under the AMLA can only be granted in connection with violations of the AMLA and that the AMLA can not apply
to bank accounts opened and transactions entered into prior to the effectivity of the AMLA or to bank accounts
located outside the Philippines.[47]

On 1 August 2006, the Court of Appeals, acting on Lilia Cheng's petition, issued a Temporary Restraining
Order[48] enjoining the Manila and Makati trial courts from implementing, enforcing or executing the respective
bank inquiry orders previously issued, and the AMLC from enforcing and implementing such orders. On even date,
the Manila RTC issued an Order[49] resolving to hold in abeyance the resolution of the urgent omnibus motion for
reconsideration then pending before it until the resolution of Lilia Cheng's petition for certiorari with the Court of
Appeals. The Court of Appeals Resolution directing the issuance of the temporary restraining order is the second of
the four rulings assailed in the present petition.

The third assailed ruling[50] was issued on 15 August 2006 by the Manila RTC, acting on the Urgent Motion for
Clarification[51] dated 14 August 2006 filed by Alvarez. It appears that the 1 August 2006 Manila RTC Order had
amended its previous 25 July 2006 Order by deleting the last paragraph which stated that the AMLC "should not
disclose or publish any information or document found or obtained in violation of the May 11, 2006 Order of this
Court."[52] In this new motion, Alvarez argued that the deletion of that paragraph would allow the AMLC to
implement the bank inquiry orders and publish whatever information it might obtain thereupon even before the
final orders of the Manila RTC could become final and executory. [53] In the 15 August 2006 Order, the Manila RTC
reiterated that the bank inquiry order it had issued could not be implemented or enforced by the AMLC or any of
its representatives until the appeal therefrom was finally resolved and that any enforcement thereof would be
unauthorized.[54]

The present Consolidated Petition[55] for certiorari and prohibition under Rule 65 was filed on 2 October 2006,
assailing the two Orders of the Manila RTC dated 25 July and 15 August 2006 and the Temporary Restraining Order
dated 1 August 2006 of the Court of Appeals. Through an Urgent Manifestation and Motion [56] dated 9 October
2006, petitioner informed the Court that on 22 September 2006, the Court of Appeals hearing Lilia Cheng's petition
had granted a writ of preliminary injunction in her favor.[57] Thereafter, petitioner sought as well the nullification of
the 22 September 2006 Resolution of the Court of Appeals, thereby constituting the fourth ruling assailed in the
instant petition.[58]

The Court had initially granted a Temporary Restraining Order[59] dated 6 October 2006 and later on a
Supplemental Temporary Restraining Order[60] dated 13 October 2006 in petitioner's favor, enjoining the
implementation of the assailed rulings of the Manila RTC and the Court of Appeals. However, on respondents'
motion, the Court, through a Resolution[61] dated 11 December 2006, suspended the implementation of the
restraining orders it had earlier issued.

Oral arguments were held on 17 January 2007. The Court consolidated the issues for argument as follows:

1. Did the RTC-Manila, in issuing the Orders dated 25 July 2006 and 15 August 2006 which deferred the
implementation of its Order dated 12 January 2006, and the Court of Appeals, in issuing its Resolution dated 1
August 2006, which ordered the status quo in relation to the 1 July 2005 Order of the RTC-Makati and the 12
January 2006 Order of the RTC-Manila, both of which authorized the examination of bank accounts under Section
11 of Rep. Act No. 9160 (AMLA), commit grave abuse of discretion?

(a) Is an application for an order authorizing inquiry into or examination of bank accounts or investments under
Section 11 of the AMLA ex-parte in nature or one which requires notice and hearing?

(b) What legal procedures and standards should be observed in the conduct of the proceedings for the issuance of
said order?

(c) Is such order susceptible to legal challenges and judicial review?

2. Is it proper for this Court at this time and in this case to inquire into and pass upon the validity of the 1 July 2005
Order of the RTC-Makati and the 12 January 2006 Order of the RTC-Manila, considering the pendency of CA G.R. SP
No. 95-198 (Lilia Cheng v. Republic) wherein the validity of both orders was challenged?[62]
After the oral arguments, the parties were directed to file their respective memoranda, which they did, [63] and the
petition was thereafter deemed submitted for resolution.

II.

Petitioner's general advocacy is that the bank inquiry orders issued by the Manila and Makati RTCs are valid and
immediately enforceable whereas the assailed rulings, which effectively stayed the enforcement of the Manila and
Makati RTCs bank inquiry orders, are sullied with grave abuse of discretion. These conclusions flow from the
posture that a bank inquiry order, issued upon a finding of probable cause, may be issued ex parte and, once
issued, is immediately executory. Petitioner further argues that the information obtained following the bank
inquiry is necessarily beneficial, if not indispensable, to the AMLC in discharging its awesome responsibility
regarding the effective implementation of the AMLA and that any restraint in the disclosure of such information to
appropriate agencies or other judicial fora would render meaningless the relief supplied by the bank inquiry order.

Petitioner raises particular arguments questioning Lilia Cheng's right to seek injunctive relief before the Court of
Appeals, noting that not one of the bank inquiry orders is directed against her. Her "cryptic assertion" that she is
the wife of Cheng Yong cannot, according to petitioner, "metamorphose into the requisite legal standing to seek
redress for an imagined injury or to maintain an action in behalf of another." In the same breath, petitioner argues
that Alvarez cannot assert any violation of the right to financial privacy in behalf of other persons whose bank
accounts are being inquired into, particularly those other persons named in the Makati RTC bank inquiry order
who did not take any step to oppose such orders before the courts.

Ostensibly, the proximate question before the Court is whether a bank inquiry order issued in accordance with
Section 10 of the AMLA may be stayed by injunction. Yet in arguing that it does, petitioner relies on what it posits
as the final and immediately executory character of the bank inquiry orders issued by the Manila and Makati RTCs.
Implicit in that position is the notion that the inquiry orders are valid, and such notion is susceptible to review and
validation based on what appears on the face of the orders and the applications which triggered their issuance, as
well as the provisions of the AMLA governing the issuance of such orders. Indeed, to test the viability of
petitioner's argument, the Court will have to be satisfied that the subject inquiry orders are valid in the first place.
However, even from a cursory examination of the applications for inquiry order and the orders themselves, it is
evident that the orders are not in accordance with law.

III.

A brief overview of the AMLA is called for.

Money laundering has been generally defined by the International Criminal Police Organization (Interpol) `as "any
act or attempted act to conceal or disguise the identity of illegally obtained proceeds so that they appear to have
originated from legitimate sources."[64] Even before the passage of the AMLA, the problem was addressed by the
Philippine government through the issuance of various circulars by the Bangko Sentral ng Pilipinas. Yet ultimately,
legislative proscription was necessary, especially with the inclusion of the Philippines in the Financial Action Task
Force's list of non-cooperative countries and territories in the fight against money laundering.[65] The original
AMLA, Republic Act (R.A.) No. 9160, was passed in 2001. It was amended by R.A. No. 9194 in 2003.

Section 4 of the AMLA states that "[m]oney laundering is a crime whereby the proceeds of an unlawful activity as
[defined in the law] are transacted, thereby making them appear to have originated from legitimate
sources."[66] The section further provides the three modes through which the crime of money laundering is
committed. Section 7 creates the AMLC and defines its powers, which generally relate to the enforcement of the
AMLA provisions and the initiation of legal actions authorized in the AMLA such as civil forefeiture proceedings and
complaints for the prosecution of money laundering offenses.[67]

In addition to providing for the definition and penalties for the crime of money laundering, the AMLA also
authorizes certain provisional remedies that would aid the AMLC in the enforcement of the AMLA. These are the
"freeze order" authorized under Section 10, and the "bank inquiry order" authorized under Section 11.

Respondents posit that a bank inquiry order under Section 11 may be obtained only upon the pre-existence of a
money laundering offense case already filed before the courts.[68] The conclusion is based on the phrase "upon
order of any competent court in cases of violation of this Act," the word "cases" generally understood as referring
to actual cases pending with the courts.

We are unconvinced by this proposition, and agree instead with the then Solicitor General who conceded that the
use of the phrase "in cases of" was unfortunate, yet submitted that it should be interpreted to mean "in the event
there are violations" of the AMLA, and not that there are already cases pending in court concerning such
violations.[69] If the contrary position is adopted, then the bank inquiry order would be limited in purpose as a tool
in aid of litigation of live cases, and wholly inutile as a means for the government to ascertain whether there is
sufficient evidence to sustain an intended prosecution of the account holder for violation of the AMLA. Should that
be the situation, in all likelihood the AMLC would be virtually deprived of its character as a discovery tool, and thus
would become less circumspect in filing complaints against suspect account holders. After all, under such set-up
the preferred strategy would be to allow or even encourage the indiscriminate filing of complaints under the AMLA
with the hope or expectation that the evidence of money laundering would somehow surface during the trial.
Since the AMLC could not make use of the bank inquiry order to determine whether there is evidentiary basis to
prosecute the suspected malefactors, not filing any case at all would not be an alternative. Such unwholesome set-
up should not come to pass. Thus Section 11 cannot be interpreted in a way that would emasculate the remedy it
has established and encourage the unfounded initiation of complaints for money laundering.

Still, even if the bank inquiry order may be availed of without need of a pre-existing case under the AMLA, it does
not follow that such order may be availed of ex parte. There are several reasons why the AMLA does not generally
sanction ex parte applications and issuances of the bank inquiry order.

IV.

It is evident that Section 11 does not specifically authorize, as a general rule, the issuance ex parte of the bank
inquiry order. We quote the provision in full:

SEC. 11. Authority to Inquire into Bank Deposits. ― Notwithstanding the provisions of Republic Act No. 1405, as
amended, Republic Act No. 6426, as amended, Republic Act No. 8791, and other laws, the AMLC may inquire into
or examine any particular deposit or investment with any banking institution or non bank financial institution upon
order of any competent court in cases of violation of this Act, when it has been established that there is probable
cause that the deposits or investments are related to an unlawful activity as defined in Section 3(i) hereof or a
money laundering offense under Section 4 hereof, except that no court order shall be required in cases involving
unlawful activities defined in Sections 3(i)1, (2) and (12).

To ensure compliance with this Act, the Bangko Sentral ng Pilipinas (BSP) may inquire into or examine any deposit
of investment with any banking institution or non bank financial institution when the examination is made in the
course of a periodic or special examination, in accordance with the rules of examination of the BSP. [70] (Emphasis
supplied)
Of course, Section 11 also allows the AMLC to inquire into bank accounts without having to obtain a judicial order
in cases where there is probable cause that the deposits or investments are related to kidnapping for
ransom,[71] certain violations of the Comprehensive Dangerous Drugs Act of 2002, [72] hijacking and other violations
under R.A. No. 6235, destructive arson and murder. Since such special circumstances do not apply in this case,
there is no need for us to pass comment on this proviso. Suffice it to say, the proviso contemplates a situation
distinct from that which presently confronts us, and for purposes of the succeeding discussion, our reference to
Section 11 of the AMLA excludes said proviso.

In the instances where a court order is required for the issuance of the bank inquiry order, nothing in Section 11
specifically authorizes that such court order may be issued ex parte. It might be argued that this silence does not
preclude the ex parte issuance of the bank inquiry order since the same is not prohibited under Section 11. Yet this
argument falls when the immediately preceding provision, Section 10, is examined.

SEC. 10. Freezing of Monetary Instrument or Property. ― The Court of Appeals, upon application ex parte by the
AMLC and after determination that probable cause exists that any monetary instrument or property is in any way
related to an unlawful activity as defined in Section 3(i) hereof, may issue a freeze order which shall be effective
immediately. The freeze order shall be for a period of twenty (20) days unless extended by the court.[73]
Although oriented towards different purposes, the freeze order under Section 10 and the bank inquiry order under
Section 11 are similar in that they are extraordinary provisional reliefs which the AMLC may avail of to effectively
combat and prosecute money laundering offenses. Crucially, Section 10 uses specific language to authorize an ex
parte application for the provisional relief therein, a circumstance absent in Section 11. If indeed the legislature
had intended to authorize ex parte proceedings for the issuance of the bank inquiry order, then it could have easily
expressed such intent in the law, as it did with the freeze order under Section 10.

Even more tellingly, the current language of Sections 10 and 11 of the AMLA was crafted at the same time, through
the passage of R.A. No. 9194. Prior to the amendatory law, it was the AMLC, not the Court of Appeals, which had
authority to issue a freeze order, whereas a bank inquiry order always then required, without exception, an order
from a competent court.[74] It was through the same enactment that ex parte proceedings were introduced for the
first time into the AMLA, in the case of the freeze order which now can only be issued by the Court of Appeals. It
certainly would have been convenient, through the same amendatory law, to allow a similar ex parte procedure in
the case of a bank inquiry order had Congress been so minded. Yet nothing in the provision itself, or even the
available legislative record, explicitly points to an ex parte judicial procedure in the application for a bank inquiry
order, unlike in the case of the freeze order.

That the AMLA does not contemplate ex parte proceedings in applications for bank inquiry orders is confirmed by
the present implementing rules and regulations of the AMLA, promulgated upon the passage of R.A. No. 9194.
With respect to freeze orders under Section 10, the implementing rules do expressly provide that the applications
for freeze orders be filed ex parte,[75] but no similar clearance is granted in the case of inquiry orders under Section
11.[76] These implementing rules were promulgated by the Bangko Sentral ng Pilipinas, the Insurance Commission
and the Securities and Exchange Commission,[77] and if it was the true belief of these institutions that inquiry
orders could be issued ex parte similar to freeze orders, language to that effect would have been incorporated in
the said Rules. This is stressed not because the implementing rules could authorize ex parte applications for inquiry
orders despite the absence of statutory basis, but rather because the framers of the law had no intention to allow
such ex parte applications.

Even the Rules of Procedure adopted by this Court in A.M. No. 05-11-04-SC[78] to enforce the provisions of the
AMLA specifically authorize ex parte applications with respect to freeze orders under Section 10[79] but make no
similar authorization with respect to bank inquiry orders under Section 11.

The Court could divine the sense in allowing ex parte proceedings under Section 10 and in proscribing the same
under Section 11. A freeze order under Section 10 on the one hand is aimed at preserving monetary instruments or
property in any way deemed related to unlawful activities as defined in Section 3(i) of the AMLA. The owner of
such monetary instruments or property would thus be inhibited from utilizing the same for the duration of the
freeze order. To make such freeze order anteceded by a judicial proceeding with notice to the account holder
would allow for or lead to the dissipation of such funds even before the order could be issued.

On the other hand, a bank inquiry order under Section 11 does not necessitate any form of physical seizure of
property of the account holder. What the bank inquiry order authorizes is the examination of the particular
deposits or investments in banking institutions or non-bank financial institutions. The monetary instruments or
property deposited with such banks or financial institutions are not seized in a physical sense, but are examined on
particular details such as the account holder's record of deposits and transactions. Unlike the assets subject of the
freeze order, the records to be inspected under a bank inquiry order cannot be physically seized or hidden by the
account holder. Said records are in the possession of the bank and therefore cannot be destroyed at the instance
of the account holder alone as that would require the extraordinary cooperation and devotion of the bank.

Interestingly, petitioner's memorandum does not attempt to demonstrate before the Court that the bank inquiry
order under Section 11 may be issued ex parte, although the petition itself did devote some space for that
argument. The petition argues that the bank inquiry order is "a special and peculiar remedy, drastic in its name,
and made necessary because of a public necessity… [t]hus, by its very nature, the application for an order or
inquiry must necessarily, be ex parte." This argument is insufficient justification in light of the clear disinclination of
Congress to allow the issuance ex parte of bank inquiry orders under Section 11, in contrast to the legislature's
clear inclination to allow the ex parte grant of freeze orders under Section 10.

Without doubt, a requirement that the application for a bank inquiry order be done with notice to the account
holder will alert the latter that there is a plan to inspect his bank account on the belief that the funds therein are
involved in an unlawful activity or money laundering offense. [80] Still, the account holder so alerted will in fact be
unable to do anything to conceal or cleanse his bank account records of suspicious or anomalous transactions, at
least not without the whole-hearted cooperation of the bank, which inherently has no vested interest to aid the
account holder in such manner.
V.

The necessary implication of this finding that Section 11 of the AMLA does not generally authorize the issuance ex
parte of the bank inquiry order would be that such orders cannot be issued unless notice is given to the owners of
the account, allowing them the opportunity to contest the issuance of the order. Without such a consequence, the
legislated distinction between ex parte proceedings under Section 10 and those which are not ex parte under
Section 11 would be lost and rendered useless.

There certainly is fertile ground to contest the issuance of an ex parte order. Section 11 itself requires that it be
established that "there is probable cause that the deposits or investments are related to unlawful activities," and it
obviously is the court which stands as arbiter whether there is indeed such probable cause. The process of
inquiring into the existence of probable cause would involve the function of determination reposed on the trial
court. Determination clearly implies a function of adjudication on the part of the trial court, and not a mechanical
application of a standard pre-determination by some other body. The word "determination" implies deliberation
and is, in normal legal contemplation, equivalent to "the decision of a court of justice."[81]

The court receiving the application for inquiry order cannot simply take the AMLC's word that probable cause
exists that the deposits or investments are related to an unlawful activity. It will have to exercise its own
determinative function in order to be convinced of such fact. The account holder would be certainly capable of
contesting such probable cause if given the opportunity to be apprised of the pending application to inquire into
his account; hence a notice requirement would not be an empty spectacle. It may be so that the process of
obtaining the inquiry order may become more cumbersome or prolonged because of the notice requirement, yet
we fail to see any unreasonable burden cast by such circumstance. After all, as earlier stated, requiring notice to
the account holder should not, in any way, compromise the integrity of the bank records subject of the inquiry
which remain in the possession and control of the bank.

Petitioner argues that a bank inquiry order necessitates a finding of probable cause, a characteristic similar to a
search warrant which is applied to and heard ex parte. We have examined the supposed analogy between a search
warrant and a bank inquiry order yet we remain to be unconvinced by petitioner.

The Constitution and the Rules of Court prescribe particular requirements attaching to search warrants that are
not imposed by the AMLA with respect to bank inquiry orders. A constitutional warrant requires that the judge
personally examine under oath or affirmation the complainant and the witnesses he may produce,[82] such
examination being in the form of searching questions and answers.[83] Those are impositions which the legislative
did not specifically prescribe as to the bank inquiry order under the AMLA, and we cannot find sufficient legal basis
to apply them to Section 11 of the AMLA. Simply put, a bank inquiry order is not a search warrant or warrant of
arrest as it contemplates a direct object but not the seizure of persons or property.

Even as the Constitution and the Rules of Court impose a high procedural standard for the determination of
probable cause for the issuance of search warrants which Congress chose not to prescribe for the bank inquiry
order under the AMLA, Congress nonetheless disallowed ex parte applications for the inquiry order. We can
discern that in exchange for these procedural standards normally applied to search warrants, Congress chose
instead to legislate a right to notice and a right to be heard characteristics of judicial proceedings which are not ex
parte. Absent any demonstrable constitutional infirmity, there is no reason for us to dispute such legislative policy
choices.

VI.

The Court's construction of Section 11 of the AMLA is undoubtedly influenced by right to privacy considerations. If
sustained, petitioner's argument that a bank account may be inspected by the government following an ex
parte proceeding about which the depositor would know nothing would have significant implications on the right
to privacy, a right innately cherished by all notwithstanding the legally recognized exceptions thereto. The notion
that the government could be so empowered is cause for concern of any individual who values the right to privacy
which, after all, embodies even the right to be "let alone," the most comprehensive of rights and the right most
valued by civilized people.[84]

One might assume that the constitutional dimension of the right to privacy, as applied to bank deposits, warrants
our present inquiry. We decline to do so. Admittedly, that question has proved controversial in American
jurisprudence. Notably, the United States Supreme Court in U.S. v. Miller[85] held that there was no legitimate
expectation of privacy as to the bank records of a depositor. [86] Moreover, the text of our Constitution has not
bothered with the triviality of allocating specific rights peculiar to bank deposits.

However, sufficient for our purposes, we can assert there is a right to privacy governing bank accounts in the
Philippines, and that such right finds application to the case at bar. The source of such right is statutory, expressed
as it is in R.A. No. 1405 otherwise known as the Bank Secrecy Act of 1955. The right to privacy is enshrined in
Section 2 of that law, to wit:

SECTION 2. All deposits of whatever nature with banks or banking institutions in the Philippines including
investments in bonds issued by the Government of the Philippines, its political subdivisions and its
instrumentalities, are hereby considered as of an absolutely confidential nature and may not be examined,
inquired or looked into by any person, government official, bureau or office, except upon written permission of the
depositor, or in cases of impeachment, or upon order of a competent court in cases of bribery or dereliction of
duty of public officials, or in cases where the money deposited or invested is the subject matter of the litigation.
(Emphasis supplied)
Because of the Bank Secrecy Act, the confidentiality of bank deposits remains a basic state policy in the
Philippines.[87] Subsequent laws, including the AMLA, may have added exceptions to the Bank Secrecy Act, yet the
secrecy of bank deposits still lies as the general rule. It falls within the zones of privacy recognized by our
laws.[88] The framers of the 1987 Constitution likewise recognized that bank accounts are not covered by either the
right to information[89] under Section 7, Article III or under the requirement of full public disclosure [90]under Section
28, Article II.[91] Unless the Bank Secrecy Act is repealed or amended, the legal order is obliged to conserve the
absolutely confidential nature of Philippine bank deposits.

Any exception to the rule of absolute confidentiality must be specifically legislated. Section 2 of the Bank Secrecy
Act itself prescribes exceptions whereby these bank accounts may be examined by "any person, government
official, bureau or office"; namely when: (1) upon written permission of the depositor; (2) in cases of
impeachment; (3) the examination of bank accounts is upon order of a competent court in cases of bribery or
dereliction of duty of public officials; and (4) the money deposited or invested is the subject matter of the
litigation. Section 8 of R.A. Act No. 3019, the Anti-Graft and Corrupt Practices Act, has been recognized by this
Court as constituting an additional exception to the rule of absolute confidentiality, [92] and there have been other
similar recognitions as well.[93]

The AMLA also provides exceptions to the Bank Secrecy Act. Under Section 11, the AMLC may inquire into a bank
account upon order of any competent court in cases of violation of the AMLA, it having been established that there
is probable cause that the deposits or investments are related to unlawful activities as defined in Section 3(i) of the
law, or a money laundering offense under Section 4 thereof. Further, in instances where there is probable cause
that the deposits or investments are related to kidnapping for ransom, [94] certain violations of the Comprehensive
Dangerous Drugs Act of 2002,[95] hijacking and other violations under R.A. No. 6235, destructive arson and murder,
then there is no need for the AMLC to obtain a court order before it could inquire into such accounts.

It cannot be successfully argued the proceedings relating to the bank inquiry order under Section 11 of the AMLA is
a "litigation" encompassed in one of the exceptions to the Bank Secrecy Act which is when "the money deposited
or invested is the subject matter of the litigation." The orientation of the bank inquiry order is simply to serve as a
provisional relief or remedy. As earlier stated, the application for such does not entail a full-blown trial.

Nevertheless, just because the AMLA establishes additional exceptions to the Bank Secrecy Act it does not mean
that the later law has dispensed with the general principle established in the older law that "[a]ll deposits of
whatever nature with banks or banking institutions in the Philippines x x x are hereby considered as of an
absolutely confidential nature."[96] Indeed, by force of statute, all bank deposits are absolutely confidential, and
that nature is unaltered even by the legislated exceptions referred to above. There is disfavor towards construing
these exceptions in such a manner that would authorize unlimited discretion on the part of the government or of
any party seeking to enforce those exceptions and inquire into bank deposits. If there are doubts in upholding the
absolutely confidential nature of bank deposits against affirming the authority to inquire into such accounts, then
such doubts must be resolved in favor of the former. Such a stance would persist unless Congress passes a law
reversing the general state policy of preserving the absolutely confidential nature of Philippine bank accounts.

The presence of this statutory right to privacy addresses at least one of the arguments raised by petitioner, that
Lilia Cheng had no personality to assail the inquiry orders before the Court of Appeals because she was not the
subject of said orders. AMLC Resolution No. 75, which served as the basis in the successful application for the
Makati inquiry order, expressly adverts to Citibank Account No. 88576248 "owned by Cheng Yong and/or Lilia G.
Cheng with Citibank N.A.,"[97] whereas Lilia Cheng's petition before the Court of Appeals is accompanied by a
certification from Metrobank that Account Nos. 300852436-0 and 700149801-7, both of which are among the
subjects of the Manila inquiry order, are accounts in the name of "Yong Cheng or Lilia Cheng." [98] Petitioner does
not specifically deny that Lilia Cheng holds rights of ownership over the three said accounts, laying focus instead on
the fact that she was not named as a subject of either the Makati or Manila RTC inquiry orders. We are reasonably
convinced that Lilia Cheng has sufficiently demonstrated her joint ownership of the three accounts, and such
conclusion leads us to acknowledge that she has the standing to assail via certiorari the inquiry orders authorizing
the examination of her bank accounts as the orders interfere with her statutory right to maintain the secrecy of
said accounts.

While petitioner would premise that the inquiry into Lilia Cheng's accounts finds root in Section 11 of the AMLA, it
cannot be denied that the authority to inquire under Section 11 is only exceptional in character, contrary as it is to
the general rule preserving the secrecy of bank deposits. Even though she may not have been the subject of the
inquiry orders, her bank accounts nevertheless were, and she thus has the standing to vindicate the right to
secrecy that attaches to said accounts and their owners. This statutory right to privacy will not prevent the courts
from authorizing the inquiry anyway upon the fulfillment of the requirements set forth under Section 11 of the
AMLA or Section 2 of the Bank Secrecy Act; at the same time, the owner of the accounts have the right to
challenge whether the requirements were indeed complied with.

VII.

There is a final point of concern which needs to be addressed. Lilia Cheng argues that the AMLA, being a
substantive penal statute, has no retroactive effect and the bank inquiry order could not apply to deposits or
investments opened prior to the effectivity of Rep. Act No. 9164, or on 17 October 2001. Thus, she concludes, her
subject bank accounts, opened between 1989 to 1990, could not be the subject of the bank inquiry order lest
there be a violation of the constitutional prohibition against ex post facto laws.

No ex post facto law may be enacted,[99] and no law may be construed in such fashion as to permit a criminal
prosecution offensive to the ex post facto clause. As applied to the AMLA, it is plain that no person may be
prosecuted under the penal provisions of the AMLA for acts committed prior to the enactment of the law on 17
October 2001. As much was understood by the lawmakers since they deliberated upon the AMLA, and indeed
there is no serious dispute on that point.

Does the proscription against ex post facto laws apply to the interpretation of Section 11, a provision which does
not provide for a penal sanction but which merely authorizes the inspection of suspect accounts and deposits? The
answer is in the affirmative. In this jurisdiction, we have defined an ex post facto law as one which either:

(1) makes criminal an act done before the passage of the law and which was innocent when done, and punishes
such an act;
(2) aggravates a crime, or makes it greater than it was, when committed;

(3) changes the punishment and inflicts a greater punishment than the law annexed to the crime when committed;

(4) alters the legal rules of evidence, and authorizes conviction upon less or different testimony than the law
required at the time of the commission of the offense;

(5) assuming to regulate civil rights and remedies only, in effect imposes penalty or deprivation of a right for
something which when done was lawful; and

(6) deprives a person accused of a crime of some lawful protection to which he has become entitled, such as the
protection of a former conviction or acquittal, or a proclamation of amnesty. (Emphasis supplied)[100]
Prior to the enactment of the AMLA, the fact that bank accounts or deposits were involved in activities later on
enumerated in Section 3 of the law did not, by itself, remove such accounts from the shelter of absolute
confidentiality. Prior to the AMLA, in order that bank accounts could be examined, there was need to secure either
the written permission of the depositor or a court order authorizing such examination, assuming that they were
involved in cases of bribery or dereliction of duty of public officials, or in a case where the money deposited or
invested was itself the subject matter of the litigation. The passage of the AMLA stripped another layer off the rule
on absolute confidentiality that provided a measure of lawful protection to the account holder. For that reason,
the application of the bank inquiry order as a means of inquiring into records of transactions entered into prior to
the passage of the AMLA would be constitutionally infirm, offensive as it is to the ex post facto clause.

Still, we must note that the position submitted by Lilia Cheng is much broader than what we are willing to affirm.
She argues that the proscription against ex post facto laws goes as far as to prohibit any inquiry into deposits or
investments included in bank accounts opened prior to the effectivity of the AMLA even if the suspect transactions
were entered into when the law had already taken effect. The Court recognizes that if this argument were to be
affirmed, it would create a horrible loophole in the AMLA that would in turn supply the means to fearlessly engage
in money laundering in the Philippines; all that the criminal has to do is to make sure that the money laundering
activity is facilitated through a bank account opened prior to 2001. Lilia Cheng admits that "actual money
launderers could utilize the ex post facto provision of the Constitution as a shield" but that the remedy lay with
Congress to amend the law. We can hardly presume that Congress intended to enact a self-defeating law in the
first place, and the courts are inhibited from such a construction by the cardinal rule that "a law should be
interpreted with a view to upholding rather than destroying it."[101]

Besides, nowhere in the legislative record cited by Lilia Cheng does it appear that there was an unequivocal intent
to exempt from the bank inquiry order all bank accounts opened prior to the passage of the AMLA. There is a cited
exchange between Representatives Ronaldo Zamora and Jaime Lopez where the latter confirmed to the former
that "deposits are supposed to be exempted from scrutiny or monitoring if they are already in place as of the time
the law is enacted."[102] That statement does indicate that transactions already in place when the AMLA was
passed are indeed exempt from scrutiny through a bank inquiry order, but it cannot yield any interpretation that
records of transactions undertaken after the enactment of the AMLA are similarly exempt. Due to the absence of
cited authority from the legislative record that unqualifiedly supports respondent Lilia Cheng's thesis, there is no
cause for us to sustain her interpretation of the AMLA, fatal as it is to the anima of that law.

IX.

We are well aware that Lilia Cheng's petition presently pending before the Court of Appeals likewise assails the
validity of the subject bank inquiry orders and precisely seeks the annulment of said orders. Our current
declarations may indeed have the effect of preempting that0 petition. Still, in order for this Court to rule on the
petition at bar which insists on the enforceability of the said bank inquiry orders, it is necessary for us to consider
and rule on the same question which after all is a pure question of law.

WHEREFORE, the PETITION is DISMISSED. No pronouncement as to costs.

SO ORDERED.

FIRST DIVISION

[ G.R. No. 188165, December 11, 2013 ]

PEOPLE OF THE PHILIPPINES, PETITIONER, VS. HON. SANDIGANBAYAN, FIRST DIVISION & THIRD DIVISION,
HERNANDO BENITO PEREZ, ROSARIO PEREZ, RAMON ARCEO AND ERNEST ESCALER, RESPONDENTS.

[G.R. No. 189063]

PEOPLE OF THE PHILIPPINES, PETITIONER, VS. HON. SANDIGANBAYAN, SECOND DIVISION, HERNANDO BENITO
PEREZ, ROSARIO SALVADOR PEREZ, ERNEST DE LEON ESCALER AND RAMON CASTILLO ARCEO, JR., RESPONDENTS.

DECISION

BERSAMIN, J.:

The guarantee of the speedy disposition of cases under Section 16 of Article III of the Constitution applies to all
cases pending before all judicial, quasi-judicial or administrative bodies. Thus, the fact-finding investigation should
not be deemed separate from the preliminary investigation conducted by the Office of the Ombudsman if the
aggregate time spent for both constitutes inordinate and oppressive delay in the disposition of any case.

The Case

The Court resolves the petitions for certiorari the State instituted to assail and nullify, in G.R. No. 188165, the
Sandiganbayan's dismissal of Criminal Case SB-08-CRM-0265 entitled People of the Philippine v. Hernando Benito
Perez, Rosario S. Perez, Ernest Escaler, and Ramon A. Arceo, for violation of Section 3 (b) of Republic Act No. 3019,
as amended; and, in G.R. No. 189063, the Sandiganbayan's dismissal of SB-08-CRM-0266 entitled People of the
Philippine v. Hernando Benito Perez, Rosario S. Perez, Ernest Escaler, and Ramon A. Arceo, for robbery under Article
293, in relation to Article 294, of the Revised Penal Code.

Common Factual and Procedural Antecedents

On November 12, 2002, Congressman Wilfrido B. Villarama of Bulacan (Cong. Villarama) delivered a privilege
speech in the House of Representatives denouncing acts of bribery allegedly committed by a high ranking
government official whom he then called the "2 Million Dollar Man."[1] In reaction, the Office of the President
directed the Presidential Anti-Graft and Commission (PAGC) to conduct an inquiry on the exposé of Cong.
Villarama. PAGC sent written communications to Cong. Villarama, Cong. Mark Jimenez, Senator Panfilo Lacson and
respondent Secretary of Justice Hernando B. Perez inviting them to provide information and documents on the
alleged bribery subject of the exposé.[2] On November 18, 2002, Cong. Villarama responded by letter to PAGC's
invitation by confirming that Secretary Perez was the government official who "ha[d] knowledge or connection
with the bribery subject of his expose."[3] In his own letter of November 18, 2002, however, Secretary Perez denied
being the Million-Dollar Man referred to in Cong. Villarama's privilege speech.[4] On November 25, 2002, Cong.
Jimenez delivered a privilege speech in the House of Representatives confirming Cong. Villarama's exposé, and
accusing Secretary Perez of extorting US$2 Million from him in February 2001.[5]
On November 25, 2002, then Ombudsman Simeon Marcelo requested PAGC to submit documents relevant to the
exposé.[6] On November 26, 2002, Ombudsman Marcelo formally requested Cong. Jimenez to submit a sworn
statement on his exposé.[7] Cong. Jimenez complied on December 23, 2002 by submitting his complaint-affidavit to
the Office of the Ombudsman. The complaint-affidavit was initially docketed as CPL-C-02-1992. On the same day,
the Special Action Team of the Fact Finding and Intelligence Research Office (FIRO) of the Office of the
Ombudsman referred Cong. Jimenez's complaint-affidavit to the Evaluation and Preliminary Investigation Bureau
and to the Administrative Adjudication Board, both of the Office of the Ombudsman, for preliminary investigation
and administrative adjudication, respectively.[8]

The complaint-affidavit of Jimenez was re-docketed as OMB-C-C-02-0857L, for the criminal case in which the
respondents were Secretary Perez, Ernest L. Escaler and Ramon C. Arceo, Jr.; and as OMB-C-A-02-0631L, for the
administrative case involving only Secretary Perez as respondent. [9]

On January 2, 2003, a Special Panel composed of Atty. Evelyn Baliton, Atty. Mary Susan Guillermo and Atty. Jose de
Jesus was created to evaluate and conduct an investigation of CPL-C-02-1992.

On even date, Secretary Perez, through counsel, requested Ombudsman Marcelo that the Office of the
Ombudsman itself directly verify from the Coutt's Bank whether he (Secretary Perez) had ever held any account in
that bank to which the sum of US$2 Million had been remitted by Cong. Jimenez. [10]

On January 15, 2003, Ombudsman Marcelo approved the recommendation of the Special Panel to refer the
complaint of Cong. Jimenez to FIRO for a full-blown fact-finding investigation.[11]

On June 4, 2003, the Office of the Ombudsman received the letter dated May 30, 2003 from the counsel of Cong.
Jimenez, submitting the supplemental complaint-affidavit dated April 4, 2003 of Cong. Jimenez.

In his letter dated July 3, 2003, Secretary Perez, through counsel, sought the dismissal of the complaint for lack of
probable cause.[12]

On July 17, 2003, Assistant Ombudsman Pelagio S. Apostol informed Secretary Perez about the letter from Coutts
Bank stating that "Hernando B. Perez" had no account with it, and assured that the letter would be considered in
the final resolution of the case.[13]

On August 22, 2005, Ombudsman Marcelo created a new Special Panel to evaluate CPL-C-02-1992, and, if
warranted, to conduct administrative and preliminary investigations, thereby superseding the creation of the
Special Panel formed on January 2, 2003.[14]

On November 14, 2005, the Field Investigation Office (FIO) completed its fact-finding investigation and filed
complaints against the following individuals, namely:

A. Former Justice Secretary Hernando B. Perez, Rosario S. Perez, Ernesto L. Escaler, Ramon C. Arceo and John
Does for violation of Section 3(b) of R.A. No. 3019;

B. Former Justice Secretary Hernando B. Perez for violation of the following: Section 8 in relation to Section
11 of R.A. No. 6713, Article 183 (Perjury) of the Revised Penal Code, and Article 171, par. 4 (Falsification)
of the RPC; and

C. Former Justice Secretary Hernando B. Perez, Rosario S. Perez, Ernest L. Escaler, Ramon C. Arceo and John
Does for violation of the provisions of R.A. 1379.[15]
On November 23, 2005, the Special Panel directed Secretary Perez (who had meanwhile resigned from office), his
wife Rosario S. Perez (Mrs. Perez), Escaler and Arceo to submit their counter-affidavits in OMB-C-C-02-0857-L,
OMB-C-C-05-0633-K, OMB-C-C-05-0634-K and OMB-C-C-05-0635-K (criminal cases). In another order of the same
date, the Special Panel directed former Secretary Perez to file his counter-affidavit in OMB-C-A-02-0631-L
(administrative case).[16]

On November 29, 2005, the respondents filed an urgent motion for extension of time to file their counter-
affidavits.

On December 2, 2005, the counsel for Escaler entered his appearance and sought the extension of the time to file
Escaler's counter-affidavit.[17]

On December 5, 2005, the Special Panel ordered the respondents to file their counter-affidavits within ten days
from December 4, 2005, or until December 14, 2005.[18]

On December 7, 2005, Asst. Ombudsman Apostol issued PAMO Office Order No. 22, Series of 2005, creating a new
team of investigators to assist in the preliminary investigation and administrative adjudication of OMB-C-C-02-
0857L, OMB-C-A-02-0631L (administrative case), OMB-C-C-05-0633K to OMB-C-C-0635K (forfeiture proceedings
under Republic Act No. 1379). The office order cancelled and superseded PAMO Office Order No. 01-2003, Series
of 2003.[19]

On December 12, 2005, former Secretary Perez, Mrs. Perez and Arceo filed an urgent motion to be furnished
copies of the complaints.[20]On December 13, 2005, they submitted a consolidated joint counter-affidavit dated
December 12, 2005.[21]

On December 15, 2005, the respondents filed a manifestation to which they attached the affidavit of Atty. Chona
Dimayuga.[22]

On December 20, 2005, Escaler, instead of filing his counter-affidavit, moved to disqualify the Office of the
Ombudsman from conducting the preliminary investigation, and to require the Special Panel to turn over the
investigation to the Department of Justice (DOJ).[23]

On December 22, 2005, the respondents submitted the affidavit of Chief State Prosecutor Jovencito Zuño. [24]

On December 29, 2005, the Special Panel denied the motion to disqualify the Office of the Ombudsman from
conducting the preliminary investigation, and ordered Escaler to submit his counter-affidavit within five days from
notice.[25]

On January 4, 2006, Cong. Jimenez filed an urgent motion for extension of the period to file his opposition to the
motion earlier filed by Escaler, and to be granted a new period to reply to the consolidated joint counter-affidavit
of the Perezes and Arceo.[26]

Between January 9, 2006 and February 10, 2006, Cong. Jimenez filed urgent motions for time to file his opposition,
the last of them seeking an extension until February 10, 2006.[27]

On February 21, 2006, the Perezes and Arceo reiterated their urgent motion to be furnished copies of the
complaints.[28]

On February 22, 2006, Cong. Jimenez opposed Escaler's motion to disqualify the Office of the Ombudsman. [29] On
the same date, Escaler asked for at least 20 days from February 17, 2006 (or until March 9, 2006) within which to
reply to Cong. Jimenez's opposition to his motion.[30] On March 9, 2006, Escaler replied to Cong. Jimenez's
opposition.[31] On March 28, 2006, Cong. Jimenez sought leave to file a rejoinder to Escaler's reply. [32]
On May 15, 2006, Escaler moved for the reconsideration of the order of December 29, 2005. [33]

On May 25, 2006, the Special Panel denied Escaler's motion for reconsideration; directed the FIO "to let
respondent Escaler examine, compare, copy and obtain any and all documentary evidence described, attached to
and forming part of the complaints" of the cases; and granted Escaler an extension of five days within which to
submit his counter-affidavit.[34]

After Escaler failed to submit his counter-affidavit despite the lapse of the five day period given to him, the
preliminary investigation was terminated.[35]

On August 23, 2006, Escaler commenced in this Court a special civil action for certiorari with application for a
temporary restraining order (TRO) docketed as G.R. No. 173967-71.[36] On September 4, 2006, the Court required
the Office of the Ombudsman to comment on the petition of Escaler.[37]

On November 6, 2006, the Special Panel issued a joint resolution, finding probable cause and recommending that
criminal informations be filed against the respondents, as follows:
Former Secretary Hernando B. Perez, Rosario S. Perez, Ernest L. Escaler and Ramon S. Arceo, Jr. for Extortion
1)
(Robbery) under par. 5 of Article 294 in relation to Article 293 of the Revised Penal Code;
Former Secretary Hernando B. Perez, Rosario S. Perez, Ernest L. Escaler and Ramon S. Arceo, Jr. for violation
2)
of Section 3 (b) of Rep. Act. 3019.
Former Secretary Hernando B. Perez for Falsification of Public Documents under Article 171 par. 4 of the
3)
Revised Penal Code.
4) Former Secretary Hernando B. Perez for violation of Sec. 7, R.A. 3019 in relation to Section 8 of R.A. 6713.[38]
On January 5, 2007, Ombudsman Ma. Merceditas Gutierrez (Ombudsman Gutierrez), who had meanwhile replaced
the resigned Ombudsman Marcelo, approved the joint resolution of the Special Panel.[39]

On January 11, 2007, the Perezes and Arceo sought the reconsideration of the joint resolution, [40] and
supplemented their motion for that purpose with additional arguments on January 15, 2007. [41]

On January 17, 2007, Arceo filed an ex parte motion for leave to admit attached supplemental motion for
reconsideration.[42]

On January 24, 2007, the Perezes and Arceo filed an urgent motion to suspend proceedings. On February 6, 2007,
Escaler also filed a motion to suspend proceedings ex abundanti ad cautelam.[43]

On March 15, 2007, Cong. Jimenez asked for time to comment on the respondents' motion for reconsideration. He
filed another motion for extension of the time to comment on April 27, 2007. [44]

On September 18, 2007, the Perezes prayed that the proceedings be held in abeyance to await the ruling on their
application for intervention in Escaler's action in the Court. On October 1, 2007, they filed a motion to dismiss. [45]

On October 2, 2007, Cong. Jimenez submitted his affidavit of desistance.[46] Thus, on October 4, 2007, the Perezes
filed an ex partemotion for resolution on the basis of the desistance by Cong. Jimenez. [47]

On January 25, 2008, the Special Panel issued an omnibus resolution denying the original and supplemental
motions for reconsideration of the Perezes and Arceo; their motion to suspend the proceedings; Escaler's motion
to suspend proceedings ex abundanti ad cautelam; and the Perezes' motion to dismiss.[48]

On April 18, 2008, the Perezes brought a petition for certiorari with an application for a writ of preliminary
injunction in this Court (G.R. No. 182360-63).[49] In due time, the Court required the respondents in G.R. No.
182360-63 to file their comments on the petition.[50]

On April 18, 2008, the Office of the Ombudsman filed in the Sandiganbayan four informations against respondents,
namely:

1. for violation of Sec. 3 (b) of Rep. Act 3019, as amended;

2. for Robbery (Art. 293, in relation to Art. 294, Revised Penal Code;

3. for Falsification of Public/Official Document under Art. 171 of the Revised Penal Code; and

4. for violation of Section 7, Rep. Act 3019, as amended, in relation to Section 8, Rep. Act 6713. [51]

Criminal Case No. SB-08-CRM-0265

[Violation of Section 3(b) of Republic Act No. 3019]

The information alleging the violation of Section 3(b) of Republic Act No. 3019, which was docketed as Criminal
Case No. SB-08-CRM-0265 entitled People v. Hernando Benito Perez, et. al., and was raffled to the First Division of
the Sandiganbayan,[52] averred:

That during the month of February, 2001 and sometime prior or subsequent thereto in the City of Makati,
Philippines, and within the jurisdiction of this Honorable Court, accused Hernando B. Perez, a high ranking public
officer, being then the Secretary of the Department of Justice, while in the performance of his official function,
committing the offense in relation to his office and taking advantage thereof, conspiring, confabulating and
confederating with accused Ernest L. Escaler, Rosario S. Perez and Ramon C. Arceo, all private individuals, did then
and there wilfully, unlawfully and criminally request and demand the amount of US TWO MILLION DOLLARS
($2,000,000.00) for himself and/or other persons from Mark Jimenez a.k.a. Mario B. Crespo, and thereafter
succeeded in receiving from the latter the sum of US$1,999,965.00 in consideration of accused Hernando S. Perez's
desisting from pressuring Mark Jimenez to execute affidavits implicating target personalities involved in the
plunder case against former President Joseph 'Erap' Estrada and in connection with the pending application of
Mark Jimenez for admission into the Witness Protection Program of the government, over which transaction
accused Hernando S. Perez had to intervene in his official capacity under the law, to the damage and prejudice of
Mark Jimenez.

CONTRARY TO LAW.[53]
On May 8, 2008, the Perezes moved to quash the information. [54] Escaler presented a similar motion to quash ex
abundanti ad cautelamon May 12, 2008,[55] while Arceo adopted the motions of the Perezes and Escaler on May
13, 2008.[56] On June 4, 2008, the Office of the Ombudsman countered with a consolidated opposition. [57]

On July 17, 2008, the First Division of the Sandiganbayan promulgated its resolution denying the motions to
quash,[58] disposing thusly:

WHEREFORE, in view of the foregoing, the Motion to Quash of accused Hernando B. Perez and Rosario S. Perez
and the urgent Ex-Abudanti Ad Cautelam Motion to Quash of accused Ernest Escaler are hereby DENIED for lack of
merit.

Accordingly, let the arraignment of the accused herein proceed on July 18, 2008 at 8:30 in the morning as
previously set by the Court.

SO ORDERED.
Respondents separately sought the reconsideration of the resolution of denial of their motions to quash.

On November 13, 2008, the Sandiganbayan First Division granted the motions for reconsideration, [59] rendering the
following ratiocination, to wit:

xxxx

After a second hard look on the respective contentions of the parties, the Court is inclined to grant the Motions for
Reconsideration of the accused and perforce grant their motion to quash the Information filed against them in this
case.

It is axiomatic that as a general rule prerequisite, a motion to quash on the ground that the Information does not
constitute the offense charged, or any offense for that matter, should be resolved on the basis of the factual
allegations therein whose truth and veracity are hypothetically admitted; and on additional facts admitted or not
denied by the prosecution. If the facts in the Information do not constitute an offense, the complaint or
information should be quashed by the court.

xxxx

It is clear that the ambit of Section 3 (b) of RA 3019 is specific. It is limited only to contracts or transaction involving
monetary consideration where the public officer has authority to intervene under the law. Thus, the requesting or
demanding of any gift, present, share, percentage, or benefit covered by said Section 3(b) must be in connection
with a "contract or transaction" involving "monetary consideration" with the government wherein the public
officer in his official capacity has to intervene under the law. In this regard, the Supreme Court in Soriano, Jr. vs.
Sandiganbayan construed the term "contract" or "transaction" covered by Section 3(b) of RA 3019, as follows

"It is obvious that the investigation conducted by the petitioner was not a contract. Neither was it
a transaction because this term must be construed as analogous to the terms which precedes it. A transaction like
a contract, is one which involves some consideration as in credit transactions and this element (consideration) is
absent in the investigation conducted by the petitioner." (Emphasis supplied)
Thus, applying the above construction of the Supreme Court in the case at bench, the Court believes and so holds
that the alleged desistance of accused Hernando B. Perez "from pressuring Mark Jimenez to execute affidavits
implicating target personalities involved in the plunder case against former President Joseph 'Erap' Estrada and in
connection with the pending application of Mark Jimenez for admission into the WPP of the government", cannot,
by any stretch of the imagination, be considered as"contract" or "transaction" as defined within the ambit of the
fourth element of the offense under Section 3(b) of RA 3019 because no "monetary consideration" as in credit
transaction is involved.

The Court finds untenable the prosecution's contention that the execution by Mark Jimenez of the affidavits in
connection with his pending application for admission in the WPP (and not the alleged desistance of accused
Hernando B. Perez from pressuring Mark Jimenez to execute affidavits implicating target personalities involved in
the plunder case against President Estrada) is the very contract or transaction required by the offense charged in
this case; and that all the elements of a contract contemplated therein are present as there is allegedly consent
between the government and Mark Jimenez, object or subject matter which is the execution of affidavits in
connection with his application for admission in the WPP, and a cause or consideration which consists of security
and monetary benefits to be given by the government to Mark Jimenez in exchange for his participation as a
witness under the WPP.

For even assuming for the sake of argument that the pending application of Mark Jimenez for admission in the
WPP can be considered as a contract or transaction, it bears stressing that the principal consideration for the said
application of Mark Jimenez is the latter's obligation to testify as a witness under the WPP on one hand and his
entitlement to the protection granted to a witness in the WPP on the other hand and as such, does not entail any
money consideration. Certainly, this is not the (monetary) consideration which is essential or involved in credit
transactions. Any pecuniary or monetary expense that may be incurred by the Government as a result of the
implementation of the program in favour of Mark Jimenez is purely incidental. Such alleged monetary benefit is
definitely not the reason that impelled Mark Jimenez to allegedly avail of the WPP of the government.
More precisely, however, what appears as the main consideration of the alleged demand or receipt of accused
Hernando B. Perez of the sum of US$2,000,000.00 from Mark Jimenez is the former's alleged desistance from
pressuring the latter to execute affidavits implicating targeted personalities in the plunder case against former
President Estrada. In the light of the ruling of the Supreme Court in Soriano vs. Sandiganbayan, supra, such alleged
desistance of accused Hernando B. Perez (and even the application of Mark Jimenez for admission into the WPP as
argued by the prosecution) can hardly be considered as a "contract" or "transaction" that is contemplated in
Section 3(b) of RA 3019, as amended.

Moreover, the Court takes note of the admission made by the prosecution in its Memorandum that the
transaction involving Mark Jimenez's execution of affidavits for his admission to the WPP is not yet a perfected
contract between the Government and Mark Jimenez since it is still in its "negotiation phase" because of the
refusal of Mark Jimenez to execute the affidavits against certain individuals. This admission is another indication
that there is indeed no contract or transaction to speak of that is covered under the fourth element of the offense
of violation of Section 3(b) of RA 3019.

Finally, it may be argued that while the material allegations in the subject information may not constitute the
offense of violation of Section 3(b) of RA 3019, as amended, the same material/factual allegations nevertheless
constitute Direct Bribery or another felony which is necessarily included in the offense charged herein so that the
subject information in this case should not be quashed. It is believed, however, that the filing of the Information
charging the accused with Robbery in SB-08-CRM-00266 pending before the Second Division of this Court on the
basis of the same acts complained of in this case, constitutes a bar against the information for said lesser felony as
it would result into two differently charged felonies from a single act and thus, would unnecessarily or unjustifiably
expose the accused to the danger of suffering two penalties for a single offense if the subject information is not
quashed. If a single act results into two or more offenses, they should not be charged and/or punished separately
unless the other offense with different elements is penalized under a special law. To do so would violate, if not the
principle of double jeopardy, the rule against splitting a single act into various charges. It is settled that a
defendant should not be harassed with various prosecutions upon the same act by splitting the same into various
charges, all emanating from the same law violated, when the prosecution could easily and well embody them in a
single information because such splitting of the action would work unnecessary inconvenience to the
administration of justice in general and to the accused in particular, for it would require the presentation of
substantially the same evidence before different courts.

All told, with the absence of the fourth element, the Court finds that the factual/material allegations in the subject
Information do not constitute the offense of violation of Section 3(b) of RA 3019, as amended, and therefore, It is
constrained to quash the said Information. In this regard, the Court deems it unnecessary to discuss/resolve the
other issues raised in the subject motions for reconsideration of the herein accused and/or disturb the other
findings contained in the Resolution sought to be reconsidered.

WHEREFORE, the instant Motions for Reconsideration of the herein accused are resolved accordingly and the
subject Information for violation of Section 3(b) of R.A. 3019, as amended, is hereby QUASHED.

SO ORDERED.
The State moved for the reconsideration of the resolution quashing the information in Criminal Case No. SB-08-
CRM-0265.

During the pendency of the State's motion for reconsideration, Criminal Case No. SB-08-CRM-0265 was re-raffled
to the Third Division of the Sandiganbayan.

On April 21, 2009, the Third Division denied the Ombudsman's motion for reconsideration, [60] holding thusly:

xxxx
The core issue raised in the submission of the parties relates to the meaning of the word "transaction" as it is used
in Sec. 3 (b) of RA 3019 to constitute an element of the offense. More particularly, has the meaning of the term
"transaction" as enunciated in the Soriano case been modified by subsequent rulings of the Supreme Court?

The meaning of "transaction" in Sec. 3 (b) of RA 3019 was enunciated in the Soriano case when the Supreme Court
stated:

As stated above, the principal issue is whether or not the investigation conducted by the petitioner can be
regarded as a "contract or transaction" within the purview of Sec. 3 (b) of R.A. No. 3019. On this issue the petition
is highly impressed with merit.

The afore-mentioned provision reads as follows:

SEC. 3. Corrupt practices of public officers. In addition to acts or omissions of public officers already penalized by
existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be
unlawful:

(a) …
Directly or indirectly requesting or receiving any gift, present, share, percentage, or benefit, for himself or for
(b) any other person, in connection with any contract or transaction between the Government and any other
party, wherein the public officer in his official capacity has to intervene under the law.
The petitioner states:

Assuming in gratia argumenti, petitioner's guilt, the facts make out a case of Direct Bribery defined and penalized
under the provision of Article 210 of the Revised Penal Code and not a violation of Section 3, subparagraph (b) of
Rep. Act 3019, as amended.

The evidence for the prosecution clearly and undoubtedly support, if at all the offense of Direct Bribery, which is
not the offense charged and is not likewise included in or is necessarily included in the offense charged, which is
for violation of Section 3, subparagraph (b) of Rep. Act 3019, as amended. The prosecution showed that: the
accused is a public officer; in consideration of P4,000.00 which was allegedly solicited, P2,000.00 of which was
allegedly received, the petitioner undertook or promised to dismiss a criminal complaint pending preliminary
investigation before him, which may or may not constitute a crime; that the act of dismissing the criminal
complaint pending before petitioner was related to the exercise of the function of his office. Therefore, it is with
pristine clarity that the offense proved, if at all is Direct Bribery. (Petition, p. 5.)

Upon the other hand, the respondents claim:

A reading of the above-quoted provision would show that the term 'transaction' as used thereof is not limited in its
scope or meaning to a commercial or business transaction but includes all kinds of transaction, whether
commercial, civil or administrative in nature, pending with the government. This must be so, otherwise, the Act
would have so stated in the "Definition of Terms", Section 2 thereof. But it did not, perforce leaving no other
interpretation than that the expressed purpose and object is to embrace all kinds of transaction between the
government and other party wherein the public officer would intervene under the law. (Comment, p. 8.)

It is obvious that the investigation conducted by the petitioner was not a contract. Neither was it
a transactionbecause this term must be construed as analogous to the term which precedes it. A transaction,
like a contract, is one which involves some consideration as in credit transactions and this element
(consideration) is absent in the investigation conducted by the petitioner. (Emphasis Supplied)
The argument of the Prosecution that the interpretation of the term "transaction" defined in the Soriano case has
been modified by the Mejia, Pelegrino and Chang cases does not persuade.

A review of the Mejia, Peligrino and Chang cases reveals that the main issue adjudicated in those cases involved an
interpretation of the element of Sec. 3 (b) of RA 3019, namely: the right to intervene of the public officer in the
contract or transaction and not the element of what is a contract or transaction with the government.

Thus, in the Mejia case, the Supreme Court ruled:

Under the sixth assigned error petitioner alleges that she does not intervene in the setting of the hearing of cases
and she does not formulate resolutions thereof. The branch clerk of court is the administrative assistant of the
presiding judge whose duty is to assist in the management of the calendar of the court and in all other matters not
involving the exercise of discretion or judgment of the judge. It is this special relation of the petitioner with the
judge who presumably has reposed confidence in her which appears to have been taken advantage of by the
petitioner in persuading the complainants to give her money in consideration of a promise to get a favorable
resolution of their cases.
In the Peligrino case, the Supreme Court ruled:

Petitioner is a BIR Examiner assigned to the Special Project Committee tasked "xxx to undertake verification of tax
liabilities of various professionals particularly doctors within the jurisdiction of Revenue Region 4-A, Manila xxx"
Since the subject transaction involved the reassessment of taxes due from private complainant, the right of
petitioner to intervene in his official capacity is undisputed. Therefore, elements (1), (4) and (5) of the offense are
present. (Emphasis Supplied)

In the Chang case, the Supreme Court ruled:

San Mateo's justification behind such refusal- that he had no authority to accept an amount less than the
assessment amount- is too shallow to merit belief, he being the Chief Operations, Business Revenue Examination,
Audit Division of the Treasurer's Office, who had, on those various meetings, gone out of his way to negotiate the
settlement of the assessed deficiency tax.
In the recent case of Merencillo vs. People, the Supreme Court identified the issues raised in the Petition as
follows: (1) the Sandiganbayan's refusal to believe petitioner's evidence over that of the prosecution and (2) the
Sandiganbayan's failure to recognize that Petitioner was placed in double jeopardy.

In addressing the second issue, the Supreme Court ruled:

Clearly, the violation of Section 3(b) of RA 3019 is neither identical nor necessarily inclusive of direct bribery. While
they have common elements, not all the essential elements of one offense are included among or form part of
those enumerated in the other. Whereas the mere request or demand of a gift, present, share, percentage or
benefit is enough to constitute a violation of Section 3(b) of RA 3019, acceptance of a promise or offer or receipt of
a gift or present is required in direct bribery. Moreover, the ambit of Section 3(b) of RA 3019 is specific. It is
limited only to contracts or transactions involving monetary consideration where the public officer has the
authority to intervene under the law. Direct bribery, on the other hand, has a wider and more general scope: (a)
performance of an act constituting a crime; (b) execution of an unjust act which does not constitute a crime and (c)
agreeing to refrain or refraining from doing an act which is his official duty to do. Although the two charges against
petitioner stemmed from the same transaction, the same act gave rise to two separate and distinct offenses. No
double jeopardy attached since there was a variance between the elements of the offenses charged. The
constitutional protection against double jeopardy proceeds from a second prosecution for the same offense, not
for a different one. (Emphasis Supplied)
Prosecution's argument that the statement of the Supreme Court above-quoted is an obiter dictum is specious.

An obiter dictum is a "judicial comment made while delivering a judicial opinion, but one that is unnecessary to the
decision in the case and therefore not precedential (although it may be considered persuasive)." In the Merencillo
case, one issue raised by Petitioner was precisely the issue of double jeopardy which the Supreme Court resolved
by distinguishing the elements of violation of Sec. 3 (b) of RA 3019 and Direct Bribery. As one of the elements of
the offense of violation of Sec. 3 (b) of RA 3019, the Court adopted the meaning given to the term "transaction" in
the Soriano case. The above-quoted resolution was not a mere obiter dictum but the ratio decidendi which is
defined as:

"1. the principle or rule of law on which a court's decision is founded; 2. The rule of law on which a later court
thinks that a previous court founded its decision xx="
The Prosecution argued that it is a maxim in statutory construction that a law must be read in its entirety and no
single provision should be interpreted in isolation with respect to the other provisions of the law. The Prosecution
further argued that a close examination of RA 3019 in its entirety would show that the term "transaction" appears
several times and was never confined to transactions involving monetary consideration. Suffice it to say that a
maxim in statutory construction cannot be superior to an express interpretation of the law made by the Supreme
Court. Furthermore, the provisions in RA 3019 cited by Prosecution constitute different offenses with their own
different elements, with their own different modalities of commission.

The reference to the Congressional record by the Prosecution does not disprove the fact that for violation of Sec. 3
(b) of RA 3019, the transaction must involve monetary consideration. As pointed out earlier, no less than the
Supreme Court has interpreted the meaning of the term "transaction" as an element of violation of the said
section. Likewise, as admitted by the Prosecution, the reference to the deliberations of Congress which it cited
involved deliberations on Sec. 5 of RA 3019 and not on Sec. 3 (b) of RA 3019. The two sections, i.e. Sec. 5 and Sec. 3
(b) of RA 3019 are different offenses with their own different elements.

Having resolved the core issue in the Motion For Reconsideration of the Prosecution, there is no further need to
discuss the other arguments of the Prosecution in its Motion.

WHEREFORE, Prosecution's Motion for Reconsideration of the Resolution of the First Division dated November 13,
2008 is DENIED.

SO ORDERED.
On June 22, 2009, the Office of the Special Prosecutor (OSP) assailed in this Court via petition for certiorari the
resolution of the Sandiganbayan promulgated on July 17, 2008 quashing the information in Criminal Case No. SB-
08-CRM-0265 and the resolution promulgated on April 21, 2009 denying the State's motion for reconsideration.

On November 18, 2009, the Court denied the Perezes' urgent motion for leave to file a motion to dismiss for being
a prohibited pleading, and instead required the respondents to comment on the petition, among other things.[61]

Criminal Case SB-08-CRM-0266

[Robbery under Art. 293, in relation to Art. 294, Revised Penal Code]

The information charging robbery under Article 293, in relation to Article 294, Revised Penal Code was raffled to
the Second Division (Criminal Case No. SB-08-CRM-0266).[62]

On May 6, 2008, Escaler filed a motion to quash ex abundanti ad cautelam, alleging that the facts charged did not
constitute an offense.[63] On May 2, 2008, the Perezes filed their own motion to quash the information.[64] On May
6, 2008, Arceo filed an ex parte motion to adopt the Perezes motion as well as Escaler's motion to quash. [65]

On June 26, 2008, the Second Division of the Sandiganbayan denied the respective motions to quash of
respondents.[66]

On June 30, 2008, Escaler moved to reconsider the denial.[67] On July 10, 2008, Arceo also moved to reconsider the
denial.[68] The Perezes filed their own motion for reconsideration on July 11, 2008.[69]

On November 20, 2008, the Second Division of the Sandiganbayan granted the motions for reconsideration,
quashed the information charging respondents with robbery, and dismissed Criminal Case No. SB-08-CRM-
0266,[70] holding as follows:

xxxx

The Court after a careful perusal of the issue and the record on hand, is persuaded. Extant in the record and which
the prosecution admits or at least does not deny are the following:

1. The alleged Robbery (extortion) was committed on February 13, 2001 (Joint Resolution signed by
members of the Special Panel composed of Orlando Ines, Adoracion Agbada, Mary Susan Geronimo, Jose
de Jesus Jr., signed by Asst. Ombudsman Pelagio Apostol, and approved by Ombudsman Mr. (sic)
Merceditas N. Gutierrez.) (pp. 4-69, Vol. 1, Records; pp. 70-88, Complaint-Affidavit of Mark Jimenez, Vol.
1, Records)

2. On February 23, 2001 the amount of US $1,999,965.00 was transferred to Coutts Bank Hongkong in
favour of the beneficiary of Account No. HO 13706, from Trade and Commerce Bank, Cayman Island
through the Chase Manhattan Bank in New York. Subsequently from March 6, 2001 to May 23, 2001
funds were transferred from Coutts Bank to other accounts, among them a $250,000.00 bank
draft/cheque issued to Ramon C. Arceo (pp. 10-11 Records).

3. On December 23, 2002 Congressman Mark Jimenez filed his complaint with the Ombudsman charging
Hernando Perez, Ernest Escaler, Ramon Arceo and several John Does (Mrs. Rosario Perez was not among
those charged) with criminal offenses of Plunder, Extortion, Graft and Corruption, Obstruction of Justice,
Violation of the Penal Provision of the Code of Conduct and Ethical Standards R.A. 6713, and
Administrative Offenses of Dishonesty, Grave Misconduct, Oppression, Committing acts Punishable under
the Anti-Graft Law, Conduct Prejudicial to the Best Interest of the service, and Violation of Section 5 (2) of
R.A. 6713. It was subscribed and sworn to on (the ) 23rd day of December 2002 (Complaint-Affidavit of
Mario Mark (MJ) Jimenez B. Crespo pp. 70-88 Records).

4. On December 23, 2002, the FIRO (Fact Finding and Intelligence Research Office) recommended that the
case be referred to the Evaluation and Preliminary Investigation Bureau and the Administrative
Adjudication Bureau (p. 6 of the Records)

5. The information was filed with this Court only on April 18, 2008.

Having established, or at least as claimed by Complainant Mark Jimenez, that the Robbery (extortion) took place
on February 13, 2001, the Ombudsman should have demanded a reasonable explanation from the complainant
who was then a Congressman, wealthy and influential and in whose house the alleged intimidation took place, why
he was filing the complaint only on December 23, 2002 a matter of more than eighteen (18) months. This should
have cautioned the Ombudsman as to the possible motive in filing the complaint.

At any rate, the Field Investigation Office (FIO) of the office of the Ombudsman as nominal complainant filed a
complaint with the Ombudsman on November 14, 2005 charging Hernando Benito Perez, Rosario Salvador Perez,
Ernest L. Escaler, Ramon Antonio C. Arceo Jr. and John Does with Violation of Sec. 3(b) R.A. 3019, Sec. 8 in relation
to Sec. 11 of R.A. 6713, Perjury (Art. 183 RPC) and Art. 171 par. 4 Falsification, RPC and violation of R.A. 1379. (Pp.
132 to 170 of Records) Robbery is NOT one of the charges.

With the Ombudsman's finding that the extortion (intimidation) was perpetrated on February 13, 2001 and that
there was transfer of Mark Jimenez US $1,999,965.00 to Coutts Bank Account HO 133706 on February 23, 2001 in
favour of the accused, there is no reason why within a reasonable period from these dates, the complaint should
not be resolved. The act of intimidation was there, the asportation was complete as of February 23, 2001 why was
the information filed only on April 18, 2008. For such a simple charge of Robbery there is nothing more to consider
and all the facts and circumstances upon which to anchor a resolution whether to give due course to the complaint
or to dismiss it are on hand. The case is more than ripe for resolution. Failure to act on the same is a clear
transgression of the constitutional rights of the accused. A healthy respect for the constitutional prerogative of the
accused should have prodded the Ombudsman to act within a reasonable time.

The long wait of the accused is without valid cause or justifiable motive and has unnecessarily trampled upon their
constitutional prerogatives to a speedy disposition of the case. This is an impermissible course of action that our
fundamental law loathes.

As Justice Laurel said, the government should be the last to set an example of delay and oppression in the
administration of justice. It is the moral and legal obligation of the Court to see that criminal proceedings come to
an end (People vs. Calamba 63 Phil 496).

The Constitution of the Philippines provides:

Art. 3 Sec. 16: All persons shall have a right to a speedy disposition of their cases before all judicial(,) quasi-judicial
or administrative bodies.
Thus under our present fundamental law, all persons are entitled to a speedy resolution of their cases be it civil,
administrative or criminal cases. It is, in criminal cases however where the need to a speedy disposition of their
cases is more pronounced. It is so, because in criminal cases, it is not only the honor and reputation but even the
liberty of the accused (even life itself before the enactment of R.A. 9346) is at stake.

The charge is a simple case for Robbery. Certainly it does not involve complicated and factual issues that would
necessitate painstaking and gruelling scrutiny and perusal on the part of the Ombudsman. It may have its novel,
and to it, valid reason for departing from the established procedure and rules, but virtually in doing so, it has failed
to discharge its duty as mandated by the Constitution to promptly act on complaints filed in any form or manner
against public officers and employees.

The totality of the facts and the surrounding circumstances bears unmistakably the earmarks of inordinate delay,
making the applicability of the doctrine enunciated in Anchangco Jr. and Duterte cases cited in the parties'
pleadings irrefragable.

Accordingly, there being a clear violation of the constitutional right of the accused, the prosecution is ousted of
any authority to file the information and we hereby order the quashing of the information and the consequent
dismissal of this case.

While the ground upon which the Court banked and relied this dismissal order was not invoked in the motions for
reconsideration of accused Escaler and Arceo, since they are similarly situated with their co-accused spouses
Perez, this resolution applies to them with equal force and effect.

On the basis of the foregoing disquisition, We hereby consider the Motion for Reconsideration of our resolution
denying the motion for consolidation moot and academic; even as, We rule that the said motion lacks
persuasiveness considering that, per Manifestation of accused Escaler he is not in any way a party to all the cases
pending, the accused in each of the cases were charged with different offenses, and the different cases are already
at different stages of the proceedings, and considering the argument of the prosecution that the different offenses
in the four (4) cases consist of different elements necessitating presentation of different proofs and evidence for
each case.

Accused'(s) bonds are ordered cancelled and the Hold-Departure Order issued against them in this case is lifted
and set aside.

So ordered.
The State moved to reconsider the resolution of November 20, 2008, [71] but the Second Division of the
Sandiganbayan denied the motion for reconsideration on June 19, 2009, [72] stating thusly:

This resolves the Motion for Reconsideration of the People of the Philippines dated December 8, 2008 seeking to
reconsider the Resolution of this Court promulgated on November 20, 2008 dismissing the case, as well as
accused-spouses Perez Opposition dated December 22, 2008, accused Arceo's Comment/Opposition of even date,
and the Opposition dated January 5, 2009 of accused Ernest L. Escaler.

On record too, are the Plaintiff's Consolidated Reply dated January 19, 2009 to the three (3) Opposition/Comment
of the accused, the three (3) Rejoinders of the accused of different dates, the plaintiff's sub-rejoinder dated
February 9, 2009, accused Perezes(') Manifestation and Plaintiff's Comment dated February 16, 2009 to Perezes(')
Manifestation.

All these shall be considered and taken up by the Court in seriatim.

The first issue brought up by the accused is a supposed procedural lapse of the plaintiff's motion for
reconsideration in that the same was filed in violation of Sec. 4 Rule 15 of the Rules of Court which provides in
substance that in every written motion required to be heard, the notice of hearing thereof shall be served in such a
manner as to ensure its receipt by the other party at least three (3) days before the date of hearing.

Of course, it is not disputed that the accused-spouses received through registered mail their copy of plaintiff's
motion only on December 16, 2008 while it set the date of hearing on December 12, 2007 thus the motion was set
for hearing before the other party received it. Accused Ramon Arceo received his copy of the motion only on
December 17, 2008 while accused Ernest Escaler received his copy after December 18, 2008 giving the same
situation as accused Perezes. It must be taken note of that the Court set the hearing of the plaintiff's motion on
December 18, 2008, as on December 12, 2008 the date specified on plaintiff's motion, no accused has received his
copy of the said motion.

Considering thus, the situation, there seems plausibility for the accused claim of transgression of the aforecited
provision of the Rules of Court.

Nonetheless, considering the transfer of the date of hearing, and that all the parties were given ample time to file
and submit their respective pleadings which at the time the issue was to be resolved had grown voluminous, the
Court is not inclined to give due consideration for this procedural impropriety.

The Court takes note however that the plaintiff's motion for reconsideration was filed only on December 8, 2008
beyond the fifteenth day period within which it should be filed, since it received a copy of the Resolution of this
Court on November 21, 2008. Thus, the fifteenth day fell on December 6, 2008 after which the said Resolution has
become final and executory. The Resolution in question therefore which finally disposes of the case is not only
final but executory as well which is virtually beyond the reach of the motion for reconsideration belatedly filed.

We will now tackle the merits of the grounds invoked by the People.

The first ground cited in the People's motion was that the filing of complaint against former secretary Hernando B.
Perez was not attended by ill motive since it reasoned out that it was the intimation of the Court when it stated in
its Resolution the Ombudsman xxx "should have demanded a reasonable explanation from the complainant who
was then a congressman, wealthy and influential and in whose house the alleged intimidation took place, why he
was filing the complaint only on December 23, 2002 a matter of more than eighteen (18) months. This should have
cautioned the Ombudsman as to the possible motive in filing the complaint. xxx "We take note of the response of
the prosecution "Jimenez thought that after the pay-off, Secretary Perez would stop threatening him and would
leave him in peace for good. This was the reason why Jimenez did not immediately file a complaint against
Secretary Perez and his co-accused."
The first and foremost impression We can gather is that the alleged about two million dollars which supposedly
was the result of accused Perez' alleged extortion was delivered already to the accused. All along therefore, if the
claim of the prosecution is to be believed, Robbery has long been committed that was on or about February 2001
as alleged in the information. With or without ill-motive, the Ombudsman should have acted within a reasonable
time. Certainly eighteen (18) long months from the filing of the complaint can not be considered within a
reasonable time.

The movant then argued that the filing of the information only on April 18, 2008 were due to legal impediments
which were beyond the control of the office of the Ombudsman.

The Court can not understand those alleged "legal impediments" in the prosecution for Robbery. Here is the
prosecution claiming strongly that the filing of the complaint was not attended by ill-motive and that after the pay-
off even if a crime has been committed against complaint Congressman Mark Jimenez, the latter delayed his filing
of the complaint because he thought the accused would leave him in peace. This is the only impediment we can
think of, and this definitely is not a legal impediment; certainly too this is not beyond the control of the Office of
the Ombudsman.

But the Court shall keep track of the movant's argument about this supposed legal impediment. Admitting that the
asportation was complete on February 23, 2001, the prosecution reasoned out that the case can not be filed in
Court at that time due to insufficiency of evidence. As averred in the Opposition of accused Ernest Escaler, "xxx the
plaintiff's duty is to determine whether there exists probable cause to hold the accused for trial for simple
robbery", and those documents which the prosecution so capitalized it exerted so much offer to obtain, are mere
evidentiary matters. This is even admitted in the prosecution's motion for reconsideration.

Consider these facts all explicitly admitted by the prosecution:

On February 13, 2001 accused former Justice Secretary Hernando Perez accompanied by accused Ernest Escaler
supposedly threatened complainant Congressman Mark Jimenez to send him to jail where he will die of boil
(Putang ina mo, sinasalsal mo lang ako. Hindot ka. Ipakukulong kita sa Quezon City Jail. Doon mamamatay ka sa
pigsa). On February 23, 2001 the amount of US $1,999,965 owned by Congressman Mark Jimenez was transferred
to Coutts Bank, Hongkong in favour of Account Number 13706 in the name of Ernest Escaler (confirmed by Trade
and Commerce Bank Payment Detail Report dated February 23, 2001)
Congressman Mark Jimenez did not file my complaint against the accused in any Court or prosecutor office. This,
despite his claim in his counter-affidavit that:

"12. Meanwhile, Pres. Estrada stepped down as President after the Armed Forces of the Philippines withdrew its
support to him, and the Arroyo Administration was installed on January 19, 2001. The new Secretary of Justice,
Hernando B. Perez, was appointed by Pres. Arroyo. Soon after his appointment. Sec. Perez sent feelers that I am
his first target for inclusion in the criminal cases that he will file against Pres. Estrada. He also threatened and
intimidated me and my family with bodily harm and incarceration in a city jail with hardened criminals and drug
addicts unless I execute damaging affidavits against Pres. Estrada and his cronies and associates. Because of the
intense pressure upon me and my family, I was forced to come across with US $2.0 Million. (Page 73 of the
Records)
It was only on December 23, 2002 as stated in our Resolution that Congressman Mark Jimenez filed his complaint
with the Ombudsman, even if the said offense was alleged to have been committed on Feb. 13, 2001 and it was
only on April 18, 2008 that the Ombudsman presented the information with this Court.

The complainant had hesitated into filing his complaint for about eighteen (18) months while the Ombudsman
with double hesitation dilly-dallied for about six (6) years. All in all, the delay from the supposed commission of
such a simple offense of Robbery took more than seven years that is from February 13, 2001 to April 18, 2008. It is
clear the so-called legal impediments are but empty assertion to belatedly justify an impermissible action.

Taking exception to our ruling that the totality of facts and surrounding circumstances bear unmistakably the
earmarks of inordinate delay, the movant made a comparison of those cases dismissed by the Supreme Court for
violation of the Constitutional right of the accused to speedy disposition of cases, and this case, and wrongfully
conclude there was no delay in their handling of the case at bar.

We have already resolved and passed upon rather adequately this issue in our Resolution with the observation
that not anyone of the cases cited involved the charge of Robbery. The movant's discussion asserted no new and
substantial reason and argument to persuade us to reverse or modify our considered opinion. We however pose
this question to the prosecution. If Asst. Ombudsman Pelagio Apostol recommended the filing of the information
against the accused on November 7, 2006 why did it take the Ombudsman only on January 5, 2007 to approve the
recommendation. And if, on January 11, 2007 the accused submitted their Motion for Reconsideration, why did it
take the Ombudsman up to April 15, 2008 a matter of about fifteen (15) months to resolve the same when there
was NO OPPOSITION nor comment from the other party?

The argument that "the authority of the Ombudsman is not divested by the claimed delay in filing the information
as this authority is vested by law" is a reckless reasoning that only shows that while admitting there was undue
delay in the disposition of the case, it could still proceed with its information to charge the accused.

The prosecution need not be reminded of the uniform ruling of the Honorable Supreme Court dismissing the cases
of Tatad, Angchangco, Duterte and other cases for transgressing the constitutional rights of the accused to a
speedy disposition of cases. To argue "that the authority of the Ombudsman is not divested by the claimed delay in
filing the information xxx" is to limit the power of the Court to act on blatant transgression of the constitution.

As to fact-finding investigation, the Court finds it so baseless for the movant to capitalize on what it supposedly did
in the process of the fact-finding stance; and then reasoning out as if clutching on straws that the sequences of
events should excuse it from lately filing the information. But it took the movant six (6) years to conduct the said
fact-finding investigation, and then unabashedly it argues that is not part of the preliminary investigation.

Determining probable cause should usually take no more than ninety (90) days precisely because it only involves
finding out whether there are reasonable grounds to believe that the persons charged could be held for trial or
not. It does not require sifting through and meticulously examining every piece of evidence to ascertain that they
are enough to convict the persons involved beyond reasonable doubt. That is already the function of the Courts.

As argued by accused Ramon Arceo, the claim of the movant that the preliminary investigation of the instant case
commenced only on November 14, 2005 when the Field Investigation Office (FIO) filed its complaint, and not on
December 23, 2002 when Mark Jimenez filed his complaint-affidavit, is rather specious and does not hold water as
Robbery was not among the offenses included in the charge of the FIO. As such, it is not correct to say that the
counting of the period for delay should commence only in November 2005.

The conclusion thus, that the long waiting of six (6) years for the Office of the Ombudsman to resolve the simple
case of Robbery is clearly an inordinate delay, blatantly intolerable, and grossly prejudicial to the constitutional
right of speedy disposition of cases, easily commands assent. This Court, it must be made clear, is not making nor
indulging in mere mathematical reckoning of the time involved.

In its sixth ground the movant argued that the First, Third and Fourth Divisions all junked the claimed inordinate
delay of the accused and asked that the Second Division should "xxx co-exist not work on cross-purposes with the
other Court's Division xxx". The argument begs the question! Suppose if and when the incident reaches the
Supreme Court, the highest Court of the land ruled that it is the Second Division which is correct, and the other
Divisions in error, what would happen now to the argument of the movant that "xxx there is rhyme or reason for
the Sandiganbayan, Second Division to co-exist xxx with the other Court's Division xxx".

Moreover, the information in the first division charges the accused of Violation of Sec. 3 (b) of R.A. 3019, in the
third division the accusation was for Falsification of Public Document under Art. 171 of the Revised Penal Code,
while the accused have been indicted for violating Sec. 7 R.A. 3019 in relation to Sec. 8 of R.A. 6713 before the
Fourth Division. The Court can not say whether there is need for paper trail or monitoring of documents in those
cases, as the Divisions concerned can competently resolve and pass upon it but certainly in this instant case of
Robbery, to indulge in a prolonged fact-finding process is not a boon but a bane on the part of the prosecution

In a distasteful exhibition of unsavoury language, bordering on derision and contempt, the prosecution argued that
"xxx the assailed resolution is a wanton display of arrogance, contemptuous and outright illegal for it mooted the
same issue of inordinate delay pending with the Honorable Supreme Court xxx". This only goes to show that the
prosecution is totally ignorant of the hierarchy of Courts in our judicial system.

xxx It must be remembered that delay in instituting prosecutions is not only productive of expense to the State,
but of peril to public justice in the attenuation and distortion, even by mere natural lapse of memory, of testimony.
It is the policy of the law that prosecutions should be prompt, and that statutes, enforcing such promptitude
should be vigorously maintained. They are not merely acts of grace, but checks imposed by the State upon itself, to
exact vigilant activity from its subalterns, and to secure for criminal trials the best evidence that can be obtained.

WHEREFORE, premises considered, the prosecution's Motion for Reconsideration dated December 8, 2008 is
denied for lack of merit.

So ordered.
On August 24, 2009, the State assailed the resolutions of the Second Division of the Sandiganbayan in this Court
(G.R. No. 189063).[73]

Consolidation of the petitions

On October 26, 2009, the Court directed that G.R. No. 189063 be consolidated with G.R. No. 182360-63
(entitled Hernando B. Perez and Rosario S. Perez v. The Ombudsman, Field Investigation Officer of the Ombudsman
and Mario B. Crespo a.k.a. Mark Jimenez) and G.R. No. 173967-71 (Ernest B. Escaler v. The Office of the
Ombudsman, et al.).[74]

On April 7, 2010, the Court consolidated G.R. No. 188165 with G.R. Nos. 173967-71, G.R. Nos. 182360-63 and G.R.
No. 189063 (People of the Philippines v. Hon. Sandiganbayan, 2 nd Division, et al.).[75]

G.R. No. 173967-71 and G.R. No. 182360-63 were special civil actions for certiorari to prevent the filing of the
criminal informations against the respondents.

Deconsolidation and dismissal of G.R. No. 173967-71 and G.R. No. 182360-63 on the ground of their intervening
mootness

On February 11, 2013, the Court deconsolidated G.R. No. 173967-71 and G.R. No. 182360-63 from G.R. No. 188165
and G.R. No. 189063 on the ground that the intervening filing of the informations in Criminal Case No. SB-08-CRM-
0265 and Criminal Case No. SB-08-CRM-0266 had rendered the petitions in G.R. No. 173967-71 and G.R. No.
182360-63 moot.[76]

Issues

In G.R. No. 188165, the State raises the following issues:

I.

Whether respondent court acted with grave abuse of discretion amounting to lack or excess of jurisdiction IN
QUASHING THE INFORMATION in criminal case sb-08-crm-265, by confining the definition of the word
"transaction" in section 3(B) of r.a. 3019 as transactions involving monetary consideration.

II.

whether respondent court acted with grave abuse of discretion amounting to lack or excess of jurisdiction in
relying solely on the case of soriano, JR. VS. SANDIGANBAYAN AND DISREGARDED JURISPRUDENCE THAT SHOWS
SECTION 3 (B) OF RA 3019 EXTENDS TO ANY DEALING WITH THE GOVERNMENT.

III.

WHETHER RESPONDENT COURT ACTED WTH GRAVE ABUSE OF DISCRETION WHEN IT RESOLVED THE MOTIONS TO
QUASH (ON THE GROUND THaT THE ALLEGATIONS IN THE INFORMATION DO NOT CONSTITUTE AN OFFENSE) BY
GOING BEYOND THE ALLEGATIONS IN THE INFORMATION AND CONSIDERING SUPPOSED FACTS WITHOUT ANY
BASIS.[77]
In G.R. No. 189063, the State submits the following issues:

A. WHETHER OR NOT PUBLIC RESPONDENT SANDIGANBAYAN ACTED WITH GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN QUASHING THE INFORMATION IN CRIMINAL CASE
SB-08-CRM-0266 BY HOLDING THAT "THERE BEING A CLEAR VIOLATION OF THE CONSTITUTIONAL RIGHT
OF THE ACCUSED, THE PROSECUTION IS OUSTED OF ANY AUTHORITY TO FILE THE INFORMATION."

B. WHETHER OR NOT PUBLIC RESPONDENT SANDIGANBAYAN ACTED WITH GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN FINDING THE TOTALITY OF THE FACTS AND THE
SURROUNDING CIRCUMSTANCES BEARS UNMISTAKABLY THE EARMARKS OF INORDINATE DELAY, MAKING
THE APPLICABILITY OF THE DOCTRINE ENUNCIATED IN ANGCHONGCO JR. AND DUTERTE CASES CITED IN
THE PARTIES' PLEADINGS IRREFRAGABLE.[78]

The foregoing issues are restated thuswise:

I.

Whether or not it was the Office of the Solicitor General, not the Office of the Ombudsman, that had the authority
to file the petitions to assail the Sandiganbayan resolutions.

II.

Whether the State, as the petitioner in G.R. No. 188165 and G.R. No. 189063, resorted to the wrong remedy in
assailing the resolutions of the Sandiganbayan dismissing the criminal charges against the respondents through
petitions for certiorari instead of petitions for review on certiorari.

Specific Issue in G.R. No. 188165

Whether or not the Sandiganbayan committed grave abuse of discretion amounting to lack or in excess of
jurisdiction in quashing the information by applying the definition of transaction in Soriano, Jr. v Sandiganbayan,
131 SCRA 188.
 Specific Issue in G.R. No. 189063

Whether or not the Sandiganabayan committed grave abuse of discretion amounting to lack or in excess of
jurisdiction when it dismissed the criminal case due to the inordinate delay of the Office of the Ombudsman in
bringing the criminal action against respondents as to violate their constitutional right to the speedy disposition of
cases.
Ruling

The petitions for certiorari are devoid of merit.

I.

The Office of the Ombudsman is empowered to file an appeal or certiorari from the Sandiganbayan to the
Supreme Court.

Respondents contend that the Office of the Ombudsman has no authority to file the petitions
for certiorari because only the Solicitor General could file the petitions in this Court pursuant to Section 35,
Chapter 12, Title III, Book IV of the Administrative Code as amended by E.O. No. 292 ,which pertinently states:

Section 35. Powers and Functions. The Office of the Solicitor General shall represent the Government of the
Philippines, its agencies and instrumentalities and its officials and agents in any litigation, proceedings,
investigation or matter requiring the services of a lawyer. When authorized by the President or head of the office
concerned, it shall also represent government-owned or controlled corporations. The Office of the Solicitor
General shall constitute the law office of the Government and, as such, shall discharge duties requiring the services
of a lawyer. It shall have the following specific powers and functions:

Represent the Government in the Supreme Court and the Court of Appeals in all criminal proceedings;
represent the Government and its officers in the Supreme Court, the Court of Appeals, and all other courts or
(1)
tribunals in all civil actions and special proceedings in which the Government or any officer thereof in his
official capacity is a party.

xxxx
The contention of the respondents is grossly erroneous.

That only the Solicitor General may represent the People on appeal or certiorari in the Supreme Court and the
Court of Appeals in all criminal proceedings is the general rule,[79] but the rule admits the exception concerning "all
cases elevated to the Sandiganbayan and from the Sandiganbayan to the Supreme Court, the Office of the
Ombudsman, through its special prosecutor, shall represent the People of the Philippines, except in cases filed
pursuant to Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986." More specifically, Section 4(c) of Republic Act
No. 8249 authorizes the exception, viz:

xxxx

c. Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1, 2, 14 and 14-A, issued in
1986.

xxxx

The procedure prescribed in Batas Pambansa Blg. 129, as well as the implementing rules that the Supreme Court
has promulgated and may hereafter promulgate, relative to appeals/petitions for review to the Court of Appeals,
shall apply to appeals and petitions for review filed with the Sandiganbayan. In all cases elevated to the
Sandiganbayan and from the Sandiganbayan to the Supreme Court, the Office of the Ombudsman, through its
special prosecutor, shall represent the People of the Philippines, except in cases filed pursuant to Executive Order
Nos. 1, 2, 14 and 14-A, issued in 1986. (Bold emphasis provided)

xxxx
Consequently, the filing of the petitions in these cases by the Office of the Ombudsman, through the OSP, was
authorized by law.

II.

Petitioner did not establish grave abuse of discretion on the part of the Sandiganbayan

The petitions for certiorari brought by the State must nonetheless be dismissed for failure to show any grave abuse
of discretion on the part of Sandiganbayan in issuing the assailed resolutions.

A special civil action for certiorari is an independent action based on the specific grounds provided in Section 1,
Rule 65 of the Rules of Court, and can prosper only the jurisdictional error, or the grave abuse of discretion
amounting to lack or excess of jurisdiction committed by the inferior court or judge is alleged and proved to exist.

In De los Santos v. Metropolitan Bank and Trust Company,[80] the Court has expounded on the nature and reach of
the extraordinary remedy of certiorari, to wit:

We remind that the writ of certiorari being a remedy narrow in scope and inflexible in character, whose purpose is
to keep an inferior court within the bounds of its jurisdiction, or to prevent an inferior court from committing such
grave abuse of discretion amounting to excess of jurisdiction, or to relieve parties from arbitrary acts of courts (i.e.,
acts that courts have no power or authority in law to perform) is not a general utility tool in the legal workshop,
and cannot be issued to correct every error committed by a lower court.

In the common law, from which the remedy of certiorari evolved, the writ certiorari was issued out of Chancery, or
the King's Bench, commanding agents or officers of the inferior courts to return the record of a cause pending
before them, so as to give the party more sure and speedy justice, for the writ would enable the superior court to
determine from an inspection of the record whether the inferior court's judgment was rendered without authority.
The errors were of such a nature that, if allowed to stand, they would result in a substantial injury to the petitioner
to whom no other remedy was available. If the inferior court acted without authority, the record was then revised
and corrected in matters of law. The writ of certiorari was limited to cases in which the inferior court was said to
be exceeding its jurisdiction or was not proceeding according to essential requirements of law and would lie only
to review judicial or quasi-judicial acts.

The concept of the remedy of certiorari in our judicial system remains much the same as it has been in the
common law. In this jurisdiction, however, the exercise of the power to issue the writ of certiorari is largely
regulated by laying down the instances or situations in the Rules of Court in which a superior court may issue the
writ of certiorari to an inferior court or officer. Section 1, Rule 65 of the Rules of Court compellingly provides the
requirements for that purpose, viz:

Section 1. Petition for certiorari. When any tribunal, board or officer exercising judicial or quasi-judicial functions
has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or
excess of jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of
law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty
and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer,
and granting such incidental reliefs as law and justice may require.
The petition shall be accompanied by a certified true copy of the judgment, order or resolution subject thereof,
copies of all pleadings and documents relevant and pertinent thereto, and a sworn certification of non-forum
shopping as provided in the third paragraph of section 3, Rule 46. (1a)
Pursuant to Section 1, supra, the petitioner must show that, one, the tribunal, board or officer exercising judicial or
quasi-judicial functions acted without or in excess of jurisdiction or with grave abuse of discretion amounting to
lack or excess of jurisdiction, and, two, there is neither an appeal nor any plain, speedy and adequate remedy in
the ordinary course of law for the purpose of amending or nullifying the proceeding.

Considering that the requisites must concurrently be attendant, the herein petitioners' stance that a writ
of certiorari should have been issued even if the CA found no showing of grave abuse of discretion is absurd. The
commission of grave abuse of discretion was a fundamental requisite for the writ of certiorari to issue against the
RTC. Without their strong showing either of the RTC's lack or excess of jurisdiction, or of grave abuse of discretion
by the RTC amounting to lack or excess of jurisdiction, the writ of certiorariwould not issue for being bereft of legal
and factual bases. We need to emphasize, too, that with certiorari being an extraordinary remedy, they must
strictly observe the rules laid down by law for granting the relief sought.

The sole office of the writ of certiorari is the correction of errors of jurisdiction, which includes the commission of
grave abuse of discretion amounting to lack of jurisdiction. In this regard, mere abuse of discretion is not enough
to warrant the issuance of the writ. The abuse of discretion must be grave, which means either that the judicial or
quasi-judicial power was exercised in an arbitrary or despotic manner by reason of passion or personal hostility, or
that the respondent judge, tribunal or board evaded a positive duty, or virtually refused to perform the duty
enjoined or to act in contemplation of law, such as when such judge, tribunal or board exercising judicial or quasi-
judicial powers acted in a capricious or whimsical manner as to be equivalent to lack of jurisdiction. (citations
omitted)
Did the petitioner show grave abuse of discretion that would warrant the issuance of the writ of certiorari prayed
for?

A.

G.R. No. 188165

The Sandiganbayan correctly applied the restrictive meaning of the term transaction as used in Section 3 (b) of
Republic Act No. 3019 adopted in Soriano, Jr. v. Sandiganbayan

In its questioned resolution dismissing Criminal Case No. SB-08-CRM-0265, the Sandiganbayan relied on the ruling
in Soriano, Jr. v. Sandiganbayan,[81] in which the principal issue was whether or not the preliminary investigation of
a criminal complaint conducted by petitioner Soriano, Jr., then a Fiscal, was a "contract or transaction" as to bring
the complaint within the ambit of Section 3 (b) of Republic Act No. 3019, which punished any public officer for
"[d]irectly or indirectly requesting or receiving any gift, present, share, percentage, or benefit, for himself or for
any other person, in connection with any contract or transaction between the Government and any other party,
wherein the public officer in his official capacity has to intervene under the law." The Soriano, Jr. Court ruled in the
negative, and pronounced:

It is obvious that the investigation conducted by the petitioner was not a contract. Neither was it a transaction
because this term must be construed as analogous to the term which precedes it. A transaction, like a contract,
is one which involves some consideration as in credit transactions and this element (consideration) is absent in
the investigation conducted by the petitioner.

In the light of the foregoing, We agree with the petitioner that it was error for the Sandiganbayan to have
convicted him of violating Sec. 3 (b) of R.A. No. 3019. (Emphasis supplied)
The State now argues, however, that the Sandiganbayan thereby committed grave abuse of discretion resulting to
lack or in excess of jurisdiction for applying the interpretation of the term transaction in Soriano, Jr. considering
that the term transaction should be construed more liberally, and positing that Soriano, Jr. was already abandoned
by the Court, citing for that purpose the rulings in Mejia v. Pamaran,[82] Peligrino v. People,[83] and Chang v.
People.[84]

We disagree with the petitioner, and find for the respondents.

First of all, the interpretation in Soriano, Jr. of the term transaction as used in Section 3(b) of Republic Act No. 3019
has not been overturned by the Court.

In Mejia v. Pamaran, decided en banc on April 15, 1988, Mejia had demanded and received money from some
persons involved in certain cases in a trial court where Mejia was then serving as the branch clerk of court in
consideration of a promise that she would help in getting a favorable judgment for them. The issue was whether or
not Mejia could be convicted under the information that alleged that she had demanded a certain amount,
although the Sandiganbayan found that the amount was different from that charged in the information. The Court
dismissed her petition, and ruled that "[i]n a prosecution under the foregoing provision of the Anti-Graft Law the
value of the gift, money or present, etc. is immaterial xxx [w]hat is penalized is the receipt of any gift, present,
share, percentage, or benefit by a public officer in connection with a contract or transaction with the Government,
wherein the public officer has to intervene in his official capacity." The Court nowhere ruled on the proper
interpretation of the term transaction.

In Peligrino v. People, decided on August 13, 2001, Peligrino, an examiner of the Bureau of Internal Revenue, was
convicted of violating Section 3(b) of Republic Act No. 3019 for demanding the amount of P200,000.00 from the
complainant in connection with the latter's tax liabilities. Peligrino's defense was that he did not "demand" the
money, but the money was just given to him. He argued that he had only informed the complainant of his tax
deficiencies, and that the complainant had then requested the reduction of the amount claimed as his tax
deficiencies. The Court found no merit in Peligrino's argument. The ruling had nothing to do with the
interpretation of the term transaction.

Chang v. People, decided on July 21, 2006, was a case in which two persons Chang and San Mateo were convicted
of violating Section 3(b) of Republic Act No. 3019 after being found to have received P125,000.00 in consideration
of their issuance of a Certificate of Examination to the effect that the complainant had "no tax liability" in favour of
the municipality, notwithstanding that it had not settled with them on their assessed deficiency tax of
P494,000.00. Chang and San Mateo contended that the charge had resulted from an involuntary contact whereby
complainant Magat had simply tossed to them the brown envelope; that there had been no conspiracy between
them; and that what had transpired had been an instigation, not an entrapment. In affirming their conviction, the
Court did not touch on the proper interpretation of the term transaction as used in Section 3(b) of Republic Act No.
3019.

The three rulings the State has cited here did not overturn the interpretation made in Soriano, Jr. of the
term transaction as used in Section 3(b) of Republic Act No. 3019 because the proper interpretation of the term
was clearly not decisive in those cases. On the contrary, in the later ruling in Merencillo v. People,[85] promulgated
in 2007, the Court reiterated the restrictive interpretation given in Soriano, Jr. to the term transaction as used in
Section 3(b) of Republic Act No. 3019 in connection with a differentiation between bribery under the Revised Penal
Code and the violation of Section 3(b) of Republic Act No. 3019 by holding that the latter is "limited only to
contracts or transactions involving monetary consideration where the public officer has the authority to intervene
under the law."

And, secondly, it does not help the State any that the term transaction as used in Section 3(b) of Republic Act No.
3019 is susceptible of being interpreted both restrictively and liberally, considering that laws creating, defining or
punishing crimes and laws imposing penalties and forfeitures are to be construed strictly against the State or
against the party seeking to enforce them, and liberally against the party sought to be charged. [86]

Clearly, the Sandiganbayan did not arbitrarily, or whimsically, or capriciously quash the information for failing to
properly state the fourth element of the violation of Section 3(b) of Republic Act No. 3019.

B.

G.R. No. 189063

The Sandiganbayan did not commit any grave abuse of discretion in finding that there had been an inordinate
delay in the resolution against respondents of the charge in Criminal Case No. SB-08-CRM-0266

Upon its finding that the Office of the Ombudsman had incurred inordinate delay in resolving the complaint Cong.
Jimenez had brought against the respondents, the Sandiganbayan dismissed Criminal Case No. SB-08-CRM-0266
mainly to uphold their constitutional right to the speedy disposition of their case.

But now comes the State contending that the delay in the resolution of the case against the respondents was
neither inordinate nor solely attributable to the Office of the Ombudsman. Citing Mendoza-Ong v.
Sandiganbayan,[87] in which the Court held that speedy disposition of cases was also consistent with reasonable
delays, the State supported its contention by listing the various incidents that had caused the delay in the
investigation, and then laying part of the blame on the respondents themselves.

The right to the speedy disposition of cases is enshrined in Article III of the Constitution, which declares:

Section 16. All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or
administrative bodies.
The constitutional right to a speedy disposition of cases is not limited to the accused in criminal proceedings but
extends to all parties in all cases, including civil and administrative cases, and in all proceedings, including judicial
and quasi-judicial hearings.[88] While the concept of speedy disposition is relative or flexible, such that a mere
mathematical reckoning of the time involved is not sufficient,[89] the right to the speedy disposition of a case, like
the right to speedy trial, is deemed violated when the proceedings are attended by vexatious, capricious, and
oppressive delays; or when unjustified postponements of the trial are asked for and secured; or when without
cause or justifiable motive a long period of time is allowed to elapse without the party having his case tried. [90]

According to Angchonco, Jr. v. Ombudsman,[91] inordinate delay in resolving a criminal complaint, being violative of
the constitutionally guaranteed right to due process and to the speedy disposition of cases, warrants the dismissal
of the criminal case.[92]

Was the delay on the part of the Office of the Ombudsman vexatious, capricious, and oppressive?

We answer in the affirmative.

The acts of the respondents that the Office of the Ombudsman investigated had supposedly occurred in the period
from February 13, 2001 to February 23, 2001. Yet, the criminal complaint came to be initiated only on November
25, 2002 when Ombudsman Marcelo requested PAGC to provide his office with the documents relevant to the
exposé of Cong. Villarama. Subsequently, on December 23, 2002, Cong. Jimenez submitted his complaint-affidavit
to the Office of the Ombudsman. It was only on November 6, 2006, however, when the Special Panel created to
investigate Cong. Jimenez's criminal complaint issued the Joint Resolution recommending that the criminal
informations be filed against the respondents. Ombudsman Gutierrez approved the Joint Resolution only on
January 5, 2007.[93] The Special Panel issued the second Joint Resolution denying the respondents' motion for
reconsideration on January 25, 2008, and Ombudsman Gutierrez approved this resolution only on April 15, 2008.
Ultimately, the informations charging the respondents with four different crimes based on the complaint of Cong.
Jimenez were all filed on April 15, 2008, thereby leading to the commencement of Criminal Case No. SB-08-CRM-
0265 and Criminal Case No. SB-08-CRM-0266. In sum, the fact-finding investigation and preliminary investigation
by the Office of the Ombudsman lasted nearly five years and five months.
It is clear from the foregoing that the Office of the Ombudsman had taken an unusually long period of time just to
investigate the criminal complaint and to determine whether to criminally charge the respondents in the
Sandiganbayan. Such long delay was inordinate and oppressive, and constituted under the peculiar circumstances
of the case an outright violation of the respondents' right under the Constitution to the speedy disposition of their
cases. If, in Tatad v. Sandiganbayan,[94] the Court ruled that a delay of almost three years in the conduct of the
preliminary investigation constituted a violation of the constitutional rights of the accused to due process and to
the speedy disposition of his case, taking into account the following, namely: (a) the complaint had been
resurrected only after the accused had a falling out with former President Marcos, indicating that political
motivations had played a vital role in activating and propelling the prosecutorial process; (b) the Tanodbayan had
blatantly departed from the established procedure prescribed by law for the conduct of preliminary investigation;
and (c) the simple factual and legal issues involved did not justify the delay, there is a greater reason for us to hold
so in the respondents' case.

To emphasize, it is incumbent for the State to prove that the delay was reasonable, or that the delay was not
attributable to it. In both regards, the State miserably failed.

For one, the State explains that the criminal cases could not be immediately filed in court primarily because of the
insufficiency of the evidence to establish probable cause, like not having a document showing that the funds
(worth US$1,999,965.00 as averred in the complaint of Cong. Jimenez) had reached Secretary Perez; [95] and that it
could not obtain the document, and to enable it to obtain the document and other evidence it needed to await the
ratification of the Agreement Concerning Mutual Legal Assistance in Criminal Matters with the Hongkong Special
Administrative Region (RP-HKSAR Agreement),[96] and the Treaty on Mutual Legal Assistance in Criminal Matters
between the Republic of the Philippines and the Swiss Confederation (RP-Swiss MLAT).[97]

To us, however, the State's dependence on the ratification of the two treaties was not a sufficient justification for
the delay. The fact-finding investigation had extended from January 15, 2003, when Ombudsman Marcelo
approved the recommendation of the Special Panel and referred the complaint of Cong. Jimenez for fact-finding
investigation, until November 14, 2005, when the FIO completed its fact-finding investigation. That period
accounted for a total of two years and 10 months. In addition, the FIO submitted its report only on November 14,
2005, which was after the Department of Justice had received on September 8, 2005 the letter from Wayne Walsh,
the Deputy Government Counsel of the Hongkong Special Administrative Region in response to the request for
assistance dated June 23, 2005,[98] and the reply of the Office of Justice of Switzerland dated February 10, 2005 and
a subsequent letter dated February 21, 2005 from Liza Favre, the Ambassador of Switzerland, to Atty. Melchor
Arthur Carandang, Acting Assistant Ombudsman, FIO, together with documents pertaining to the bank accounts
relevant to the investigation.[99] For the Office of the Ombudsman to mark time until the HKSAR Agreement and
the Swiss-RP MLAT were ratified by the Senate before it would proceed with the preliminary investigation was
oppressive, capricious and vexatious, because the respondents were thereby subjected to a long and unfair delay.

We should frown on the reason for the inordinate delay because the State would thereby deliberately gain an
advantage over the respondents during the preliminary investigation. At no time should the progress and success
of the preliminary investigation of a criminal case be made dependent upon the ratification of a treaty by the
Senate that would provide to the prosecutorial arm of the State, already powerful and overwhelming in terms of
its resources, an undue advantage unavailable at the time of the investigation. To allow the delay under those
terms would definitely violate fair play and nullify due process of law fair play, because the field of contest
between the accuser and the accused should at all times be level; and due process of law, because no less that our
Constitution guarantees the speedy disposition of the case.

The State further argues that the fact-finding investigation should not be considered a part of the preliminary
investigation because the former was only preparatory in relation to the latter; [100] and that the period spent in the
former should not be factored in the computation of the period devoted to the preliminary investigation.

The argument cannot pass fair scrutiny.

The guarantee of speedy disposition under Section 16 of Article III of the Constitution applies to all cases pending
before all judicial, quasi-judicial or administrative bodies. The guarantee would be defeated or rendered inutile if
the hair-splitting distinction by the State is accepted. Whether or not the fact-finding investigation was separate
from the preliminary investigation conducted by the Office of the Ombudsman should not matter for purposes of
determining if the respondents' right to the speedy disposition of their cases had been violated.

There was really no sufficient justification tendered by the State for the long delay of more than five years in
bringing the charges against the respondents before the proper court. On the charge of robbery under Article 293
in relation to Article 294 of the Revised Penal Code, the preliminary investigation would not require more than five
years to ascertain the relevant factual and legal matters. The basic elements of the offense, that is, the
intimidation or pressure allegedly exerted on Cong. Jimenez, the manner by which the money extorted had been
delivered, and the respondents had been identified as the perpetrators, had been adequately bared before the
Office of the Ombudsman. The obtention of the bank documents was not indispensable to establish probable
cause to charge them with the offense. We thus agree with the following observation of the Sandiganbayan, viz:

With the Ombudsman's finding that the extortion (intimidation) was perpetrated on February 13, 2001 and that
there was transfer of Mark Jimenez US $1,999,965.00 to Coutts Bank Account HO 133706 on February 23, 2001 in
favor of the accused, there is no reason why within a reasonable period from these dates, the complaint should
not be resolved. The act of intimidation was there, the asportation was complete as of February 23, 2001 why was
the information filed only on April 18, 2008. For such a simple charge of Robbery there is nothing more to consider
and all the facts and circumstances upon which to anchor a resolution whether to give due course to the complaint
or dismiss it are on hand. The case is more than ripe for resolution. Failure to act on the same is a clear
transgression of the constitutional rights of the accused. A healthy respect for the constitutional prerogative of the
accused should have prodded the Ombudsman to act within reasonable time. [101]
In fine, the Office of the Ombudsman transgressed the respondents' right to due process as well as their right to
the speedy disposition of their case.

WHEREFORE, the Court DISMISSES the petitions for certiorari for their lack of merit.

No pronouncement on costs of suit.

SO ORDERED.

SECOND DIVISION

[ G.R. No. 175750-51, April 02, 2014 ]

SILVERINA E. CONSIGNA, PETITIONER, VS. PEOPLE OF THE PHILIPPINES, THE HON. SANDIGANBAYAN (THIRD
DIVISION), AND EMERLINA MOLETA, RESPONDENTS.

DECISION

PEREZ, J.:

For review on certiorari is the Decision[1] of the Honorable Sandiganbayan dated 12 December 2006, finding
Silverina E. Consigna (petitioner) guilty for violation of Section 3(e) of Republic Act (R.A.) No. 3019, otherwise
known as Anti-Graft and Corrupt Practices Act, and Estafa, as defined and penalized under Article 315 (2)(a) of the
Revised Penal Code (RPC).
The facts as culled from the records are as follows:

On or about 14 June 1994, petitioner, the Municipal Treasurer of General Luna, Surigao del Norte, together with
Jose Herasmio, obtained as loan from private respondent Hermelina Moleta (Moleta), the sum of P320,000.00, to
pay for the salaries of the employees of the municipality and to construct the municipal gymnasium as the
municipality's Internal Revenue Allotment (IRA) had not yet arrived. As payment, petitioner issued three (3) Land
Bank of the Philippines (LBP) checks signed by Jaime Rusillon (Rusillon), the incumbent mayor of the Municipality
of General Luna: (1) Check No. 11281104 for P130,000.00 dated 14 June 1994; (2) Check No. 9660500 for
P130,000.00 dated 14 June 1994; and (3) Check No. 9660439 for P60,000.00 dated 11 July 1994.

Between 15 June 1994 and 18 August 1994, in several attempts on different occasions, Moleta demanded
payment from petitioner and Rusillon, but to no avail.

Thus, on 18 August 1994, Moleta deposited the three (3) LBP checks to her account in Metrobank-Surigao Branch.
Upon presentation for payment, Metrobank returned the checks to Moleta as the checks had no funds. The
following day, Moleta again deposited the checks. This time, however, she deposited the checks to her LBP
account. Upon presentation for payment, the checks were again returned for the reason, "Signature Not on File."
Upon verification, LBP informed Moleta that the municipality's account was already closed and transferred to
Development Bank of the Philippines, and that petitioner, the municipal treasurer, has been relieved from her
position.

Hence, Moleta filed with the Sandiganbayan two (2) sets of Information against petitioner, in the latter's capacity
as Municipal Treasurer and Rusillon, in his capacity as Municipal Mayor of General Luna, Surigao del Norte, to wit:

(1) Criminal Case No. 24182 - Sec. 3(e) of R.A. 3019, otherwise known as Anti-Graft and Corrupt Practices Act:

That on or about 15 June 1994, or sometime after said date, at the General Luna, Surigao del Norte, and within the
jurisdiction of this Honorable Court accused Municipal Treasurer Silverina Consigna (with Salary Grade below 27),
and Municipal Mayor Jaime Rusillon (with Salary Grace 27) did then and there, willfully and unlawfully, with
evident bad faith, in cooperation with each other, and taking advantage of their official positions and in the
discharge for the functions as such, borrow the amount of P320,000.00 from one Emerlina Moleta to whom they
misrepresented to be for the municipality of General Luna, when in fact the same is not; and fail to pay back said
amount thereby causing undue injury to said Emerlina Moleta in the amount of P320,000.00.[2]

(2) Criminal Case No. 24183 Art. 315 of the RPC, otherwise known as Estafa:

That on or about 15 June 1994, or sometime after said date, at the General Luna, Surigao del Norte, and within the
jurisdiction of this Honorable Court, accused Municipal Treasurer Silverina Consigna (with Salary Grade below 27),
and Municipal Mayor Jaime Rusillon (with Salary Grade 27), did then and there, willfully and unlawfully, with
evident bad faith, in cooperation with each other, representing themselves to be transacting in behalf of the
[M]unicipality of Gen. Luna, in truth and in fact they are not, contract a loan from one Emerlina Moleta in the
amount of P320,000.00 for which they issued three (3) checks: LBP Check No. 11281104 dated 14 June 1994 in the
amount of P130,000.00, LBP Check No. 9660500 dated 14 June 1994 in the amount of P130,000.00, and LBP Check
no. 9660439 dated 11 July 1994 in the amount of P60,000.00, all in favor of said Emerlina Moleta, knowing fully
well that the account belongs to the Municipality of the (sic) Gen. Luna, and that they have no personal funds [of]
the same account such that upon presentation of the said checks to the bank, the same were dishonored and
refused payment, to the damage and prejudice of said Emerlina Moleta in the amount of P320,000.00.[3]

As defense, petitioner argued that the court a quo has no jurisdiction because (1) the crime as charged did not
specify the provision of law allegedly violated, i.e., the specific type of Estafa; and (2) Sec. 3(e) of RA 3019 does not
fall within the jurisdiction of the court a quo because the offense as charged can stand independently of public
office and public office is not an element of the crime.[4]

The court a quo admitted that the Information for violation of Estafa did not specify the provision of law allegedly
violated.[5] However, based on the allegations of deceit and misrepresentation, the court a quo allowed the
prosecution to indict petitioner and Rusillon under Art. 315 (2)(a) of the RPC.

On the charge of graft and corruption, petitioner argued that, "[w]hen allegations in the information do not show
that the official position of the [petitioner] was connected with the offense charged, the accused is not charged
with an offense in relation to her official functions".[6] Petitioner, citing Lacson v. The Executive Secretary,[7] further
argued:

x x x [M]ere allegation in the information "that the offense was committed by the accused public officer in relation
to his office is not sufficient. That phrase is a mere conclusion of law not a factual averment that would show the
close intimacy between the offense charged and the discharge of accused's official duties." [8]

Petitioner also contends that there was no fraud or misrepresentation. By demanding payment from Rusillon,
Moleta attested that there exists no fraud or misrepresentation. In petitioner's words, "… why will she [Moleta]
insist payment from [Rusillon] if she has no knowledge that the money loaned have reached him?" [9]

On the other hand, Rusillon maintained that he had no participation in the acts committed by petitioner. Based on
his testimony, he signed the three (3) checks to pay the following: (1) payroll of the following day; (2) daily
expenses of the municipal building; (3) construction of the municipal gymnasium; and (4) health office's medical
supplies.[10] As found by the court a quo, "the only link of Rusillon to [petitioner] with respect to the loan
transaction is his signature on the three (3) checks which [petitioner] used as security to Moleta."[11]

After trial, the Sandiganbayan, on 12 December 2006, found petitioner guilty, but exonerated Rusillon. The
dispositive portion of the Decision reads:[12]

WHEREFORE, in view of the foregoing, judgment is hereby rendered as follows:

In Criminal Case No. 24182, accused SILVERINA E. CONSIGNA is found GUILTY beyond reasonable doubt of
(1) violation of Section 3(e) of the Republic Act No. 3019, and is hereby SENTENCED to suffer the penalty of
imprisonment of six (6) years and one (1) month to eight (8) years.
Accused JAIME RUSILLON is ACQUITTED for failure of the prosecution to prove his guilt with moral certainty.
In Criminal Case No. 24183, accused SILVERINA E. CONSIGNA is found GUILTY beyond reasonable doubt of
Estafa under Article 315 (2)(a) of the Revised Penal Code, and is hereby SENTENCED to the indeterminate
(2)
prison term of six (6) years and one (1) day of prision mayor as MINIMUM, to twenty (20) years of reclusion
temporal as MAXIMUM.
Accused JAIME RUSILLON is ACQUITTED as his guilt was not proven with moral certainty.
Accused SILVERIA E. CONSIGNA is ordered to pay private complainant Emerlina F. Moleta the amount of
(3)
PhP368,739.20 by way of actual damages; PhP30,000.00 as moral damages, and the costs of suit; and
(4) The hold departure order against accused JAIME RUSILLON in connection with these cases is hereby LIFTED.

Hence, this Petition.

Noticeably, the petitioner formulated its arguments, thus:

a. The court a quo committed grave abuse of discretion in making its finding of facts which amounts to lack of
jurisdiction.
xxxx

b. The court a quo committed grave abuse of discretion when it convicted the accused on "false pretense,
fraudulent act or means" made or executed prior to or simultaneously with the commission of fraud.

xxxx

c. The court a quo committed grave abuse of discretion when it made a conclusion that the petitioner acted with
manifest partiality, evident bad faith or inexcusable negligence to justify its conclusion that all the elements of
violations of Section 3(e) of RA 3019 are present."[13]

Preliminarily, We here note a common disorder in petitions that mingle the concepts involved in a Petition for
Review under Rule 45 and in the special civil action of certiorari under Rule 65, as a prevalent practice of litigants
to cure a lapsed appeal.

We shall discuss the distinction.

With regard to the period to file a petition, in Rule 45, the period within which to file is fifteen (15) days from
notice of the judgment or final order or resolution appealed from.[14] In contrast to Rule 65, the petition should be
filed not later than sixty (60) days from notice of the judgment, order or resolution. [15]

Regarding the subject matter, a review on certiorari under Rule 45 is generally limited to the review of legal issues;
the Court only resolves questions of law which have been properly raised by the parties during the appeal and in
the petition.[16] A Rule 65 review, on the other hand, is strictly confined to the determination of the propriety of
the trial court's jurisdiction whether it has jurisdiction over the case and if so, whether the exercise of its
jurisdiction has or has not been attended by grave abuse of discretion amounting to lack or excess of
jurisdiction.[17] Otherwise stated, errors of judgment are the proper subjects of a Rule 45 petition; errors of
jurisdiction are addressed in a Rule 65 petition.

The special civil action of certiorari under Rule 65 is resorted to only in the absence of appeal or any plain, speedy
and adequate remedy in the ordinary course of law.[18] So when appeal, or a petition for review is
available, certiorari cannot be resorted to; certiorari is not a substitute for a lapsed or lost appeal.[19] A Rule
65 certiorari petition cannot be a substitute for a Rule 45 petition so as to excuse the belatedness in filing the
correct petition. Where an appeal is available, certiorari will not prosper, even if the ground therefor is grave
abuse of discretion.[20]

Grave abuse of discretion means "such capricious and whimsical exercise of judgment as is equivalent to lack of
jurisdiction, or, in other words where the power is exercised in an arbitrary or despotic manner by reason of
passion or personal hostility, and it must be so patent and gross as to amount to an evasion of positive duty or to a
virtual refusal to perform the duty enjoined or to act at all in contemplation of law. [21]

Petitioner was correct when she filed a Petition for Review under Rule 45. However, instead of raising errors of
judgment as a proper subject of a petition for review under Rule 45, the petition formulated jurisdictional errors
purportedly committed by the court a quo, i.e., whether or not the court a quo committed grave abuse of
discretion,[22] which is the proper subject of a Petition for Certiorari under Rule 65. Noticeably, the petition does
not allege any bias, partiality or bad faith by the court a quo in its proceedings;[23] and the petition does not raise a
denial of due process in the proceedings before the Sandiganbayan.[24]

Importantly, however, the petition followed the period specified in Rule 45. It was timely filed. For that reason, we
excuse the repeated referral to the supposed grave abuse of discretion of the Sandiganbayan and treat the
petition as, nonetheless, one for review of the questioned decision. We thus recast the arguments as:
 I. Whether or not the court a quo committed a reversible error for finding petitioner guilty of estafa, based
on information which does not specifically designate the provision allegedly violated.

II. Whether or not petitioner is guilty of estafa as penalized under Art. 315 (2)(a) of the RPC.

III. Whether or not petitioner is guilty of Sec. 3 (e) of RA 3019.

The Petition must fail.

1. On the first issue, petitioner insists that even if the court a quo already admitted that the Information failed to
specifically identify the mode or manner by which estafa was committed by petitioner, it nonetheless went on to
convict her by relying on the allegation in the Information of deceit and misrepresentation and applying par. (2)(a),
Art. 315 of the RPC.

Entrenched in jurisprudence is the dictum that the real nature of the criminal charge is determined not from the
caption or preamble of the information, or from the specification of the provision of law alleged to have been
violated, which are mere conclusions of law, but by the actual recital of the facts in the complaint or
information.[25] As held in People v. Dimaano:[26]

For complaint or information to be sufficient, it must state the name of the accused; the designation of the offense
given by the statute; the acts or omissions complained of as constituting the offense; the name of the offended
party; the approximate time of the commission of the offense, and the place wherein the offense was
committed. What is controlling is not the title of the complaint, nor the designation of the offense charge or the
particular law or part thereof allegedly violated, these being mere conclusions of law made by the prosecutor,
but the description of the crime charged and the particular facts therein recited. The acts or omissions
complained of must be alleged in such form as is sufficient to enable a person of common understanding to know
what offense is intended to be charged, and enable the court to pronounce proper judgment. No information for a
crime will be sufficient if it does not accurately and clearly allege the elements of the crime charged. Every
element of the offense must be stated in the information. What facts and circumstances are necessary to be
included therein must be determined by reference to the definitions and essentials of the specified crimes. The
requirement of alleging the elements of a crime in the information is to inform the accused of the nature of the
accusation against him so as to enable him to suitably prepare his defense. The presumption is that the accused
has no independent knowledge of the facts that constitute the offense. (Emphasis supplied)

As early in United States v. Lim San,[27] this Court has determined that:

From a legal point of view, and in a very real sense, it is of no concern to the accused what is the technical name
of the crime of which he stands charged. It in no way aids him in a defense on the merits. x x x. That to which his
attention should be directed, and in which he, above all things else, should be most interested, are the facts
alleged. The real question is not did he commit a crime given in the law some technical and specific name, but
did he perform the acts alleged in the body of the information in the manner therein set forth. If he did, it is of
no consequence to him, either as a matter of procedure or of substantive right, how the law denominates the
crime which those acts constitute. The designation of the crime by name in the caption of the information from
the facts alleged in the body of that pleading is a conclusion of law made by the fiscal. In the designation of the
crime the accused never has a real interest until the trial has ended. For his full and complete defense he need
not know the name of the crime at all. It is of no consequence whatever for the protection of his substantial
rights. The real and important question to him is, "Did you perform the acts alleged in the manner alleged?" not
"Did you commit a crime named murder." If he performed the acts alleged, in the manner stated, the law
determines what the name of the crime is and fixes the penalty therefor. It is the province of the court alone to
say what the name of the crime is or what it is named. x x x. (Emphasis and underscoring supplied)

Petitioner's argument is as outdated as it is erroneous. The averments in the two (2) sets of Information against
petitioner and Rusillon clearly stated facts and circumstances constituting the elements of the crime of estafa as to
duly inform them of the nature and cause of the accusation, sufficient to prepare their respective defenses.

2. Contrary to the submission of petitioner, false pretense and fraudulent acts attended her transaction with
Moleta. The law explicitly provides that in the prosecution for Estafa under par. (2)(a), Art. 315 of the RPC, it is
indispensable that the element of deceit, consisting in the false statement or fraudulent representation of the
accused, be made prior to, or at least simultaneously with the commission of the fraud, it being essential that such
false statement or representation constitutes the very cause or the only motive which induced the offended party
to part with his money. Paragraph 2(a), Art. 315 of the RPC provides:

Art. 315. Swindling (estafa). Any person who shall defraud another by any of the means mentioned hereinbelow x
x x:

xxxx

2. By means of any of the following false pretenses or fraudulent acts executed prior to or simultaneously with the
commission of the fraud:

xxxx

(a) By using fictitious name, or falsely pretending to possess power, influence, qualifications, property, credit,
agency, business or imaginary transactions, or by means of other similar deceits.

xxxx

The elements of estafa by means of deceit, whether committed by false pretenses or concealment, are the
following: (a) there must be a false pretense, fraudulent act or fraudulent means; (b) such false pretense,
fraudulent act or fraudulent means must be made or executed prior to or simultaneously with the commission of
the fraud; (c) the offended party must have relied on the false pretense, fraudulent act or fraudulent means, that
is, he was induced to part with his money or property because of the false pretense, fraudulent act or fraudulent
means; and (d) as a result thereof, the offended party suffered damage. [28]

As borne by the records, petitioner's representations were outright distortions of the truth perpetrated for the
sole purpose of inducing Moleta to hand to her the amount of P320,000.00 purportedly for the Municipality of
General Luna. Being the Municipal Treasurer, there was reason for Moleta to rely on petitioner's representations
that money is needed for the payment of the employees' salary as well as for the construction of the gymnasium.
There was also a ring of truth to the deception that the share of the municipality from the IRA is forthcoming.
Added to this, petitioner's representations were even supported by the issuance of three (3) LBP checks to
guarantee payment taken from the account of the municipality and signed by no less than the municipal mayor,
giving the impression that the loaned amount would indeed be utilized for public purposes.

As the court a quo correctly observed:

It is undisputed that Consigna obtained a loan from Moleta for the reason that the municipality lacked funds for
the June 15, 1994 payroll of the employees and materials of the gymnasium. However, several circumstances point
to the fact that Consigna's representation has no basis. She contradicted her own testimony that at the time she
borrowed from Moleta on June 14, 1994, the municipality suffered a shortage of funds, with her admission that
when she was relieved as a municipal treasurer, the Municipality had more than 1 million in Land Bank from the
IRA of P600,000.00 a month for the past three months x x x. This means that when she left her post before the
second week of July x x x, the municipality had money from the April to June 1994 IRA, enough to meet the need of
P320,000.00. x x x[29]

The circumstances and the reason behind the issuance of the three (3) checks given to Moleta by petitioner was
testified to by Rusillon:

He was the incumbent mayor of the Municipality of General Luna, Surigao del Norte, in 1994. In the morning of
June 14, 1994, he received the amount of P268,800.00 from accused Consigna, as evidenced by a voucher (Exh. 1)
signed by him on the same day. The money was to be used for the purchase of materials for the gymnasium of the
municipality which construction started in 1992. After signing the voucher, he ordered Consigna to prepare a check
for P130,000.00 (Exh. 2) for the June 15, 1994 payroll of the municipality's employees. After the check was
prepared, he again ordered Consigna to make another two checks, one for P130,000.00 (Exh. 3) dated June 14,
1994 intended for the expenses of the municipal building and for the daily transactions of the municipality in the
following days, and the other check was for P60,000.00 (Exh. 4) dated July 11, 1994 for the purchase of medicines
for the municipality's health office. The latter check was postdated to July because it would be charged against the
IRA in the 3rd quarter of 1994 since they bought medicines at that time on a quarterly basis as the budget allowed
only P240,000.00 per year for such expenditure."[30]

3. Anent the issue on the alleged grave abuse of discretion amounting to lack of jurisdiction committed by the
court a quo when it took cognizance of Criminal Case No. 24182, charging petitioner for "taking advantage of her
official position and the discharge of the functions as such," petitioner averred that the charge was erroneous
because borrowing of money is not a function of a Municipal Treasurer under the Local Government Code.
Petitioner asserts that the last sentence of Sec. 3(e) of RA 3019 cannot cover her.

We find such reasoning misplaced.

The following are the essential elements of violation of Sec. 3(e) of RA 3019:

1. The accused must be a public officer discharging administrative, judicial or official functions;

2. He must have acted with manifest partiality, evident bad faith or inexcusable negligence; and

3. That his action caused any undue injury to any party, including the government, or giving any private party
unwarranted benefits, advantage or preference in the discharge of his functions. [31]

There is no doubt that petitioner, being a municipal treasurer, was a public officer discharging official functions
when she misused such position to be able to take out a loan from Moleta, who was misled into the belief that
petitioner, as municipal treasurer, was acting on behalf of the municipality.

In Montilla v. Hilario,[32] this Court described the "offense committed in relation to the office" as:

[T]he relation between the crime and the office contemplated by the Constitution is, in our opinion, direct and not
accidental. To fall into the intent of the Constitution, the relation has to be such that, in the legal sense, the
offense cannot exist without the office. In other words, the office must be a constituent element of the crime as
defined in the statute, such as, for instance, the crimes defined and punished in Chapter Two to Six, Title Seven, of
the Revised Penal Code.

Public office is not of the essence of murder. The taking of human life is either murder or homicide whether done
by a private citizen or public servant, and the penalty is the same except when the perpetrator, being a public
functionary took advantage of his office, as alleged in this case, in which event the penalty is increased.

But the use or abuse of office does not adhere to the crime as an element; and even as an aggravating
circumstance, its materiality arises not from the allegations but on the proof, not from the fact that the criminals
are public officials but from the manner of the commission of the crime. (Emphasis supplied)

In this case, it was not only alleged in the Information, but was proved with certainty during trial that the manner
by which petitioner perpetrated the crime necessarily relates to her official function as a municipal treasurer.
Petitioner's official function created in her favor an impression of authority to transact business with Moleta
involving government financial concerns. There is, therefore, a direct relation between the commission of the
crime and petitioner's office the latter being the very reason or consideration that led to the unwarranted benefit
she gained from Moleta, for which the latter suffered damages in the amount of P320,000.00. It was just
fortunate that Rusillon instructed the bank to stop payment of the checks issued by petitioner, lest, the victim
could have been the Municipality of General Luna.

As regards the two other elements, the Court explained in Cabrera v. Sandiganbayan[33] that there are two (2)
ways by which a public official violates Sec. 3(e) of R.A. No. 3019 in the performance of his functions, namely: (a)
by causing undue injury to any party, including the Government; or (b) by giving any private party any unwarranted
benefits, advantage or preference. The accused may be charged under either mode or under both. [34] This was
reiterated in Quibal v. Sandiganbayan,[35] where the Court held that the use of the disjunctive term "or" connotes
that either act qualifies as a violation of Sec. 3(e) of R.A. No. 3019.

In this case, petitioner was charged of violating Sec. 3(e) of R.A. No. 3019 under the alternative mode of "causing
undue injury" to Moleta committed with evident bad faith, for which she was correctly found guilty. "Evident bad
faith" connotes not only bad judgment but also palpably and patently fraudulent and dishonest purpose to do
moral obliquity or conscious wrongdoing for some perverse motive or ill will. "Evident bad faith" contemplates a
state of mind affirmatively operating with furtive design or with some motive of self-interest or ill will or for
ulterior purposes,[36] which manifested in petitioner's actuations and representation.

The inevitable conclusion is that petitioner capitalized on her official function to commit the crimes charged.
Without her position, petitioner would not have induced Moleta to part with her money. In the same vein,
petitioner could not have orchestrated a scheme of issuing postdated checks meddling with the municipality's
coffers and defiling the mayor's signature. As correctly found by the court a quo:

x x x Likewise worthy of stress is [petitioner's] failure to establish that the amount she disbursed to Rusillon came
from the money she loaned from Moleta. If indeed the P268,800.00 advanced to Rusillon was charged against the
loan, then, this should have been reflected in the municipality's books of accounts. The same is true with the
P320,000.00 and the P32,000.00 given to Moleta if the proceeds of the loan really went to the municipality's
treasury. It is a standard accounting procedure that every transaction must be properly entered in the books of
accounts of the municipality. A cash that comes in is a debit to the asset account and every loan incurred is a credit
to the liability account.[37]

Given the above disquisition, it becomes superfluous to dwell further on the issue raised by petitioner that Sec.
3(e) applies only to officers and employees of offices or government corporations charged with the grant of
licenses or other concessions. Nonetheless, to finally settle the issue, the last sentence of the said provision is not
a restrictive requirement which limits the application or extent of its coverage. This has long been settled in our
ruling in Mejorada v. Sandiganbayan,[38] where we categorically declared that a prosecution for violation of Sec.
3(e) of the Anti-Graft Law will lie regardless of whether or not the accused public officer is "charged with the grant
of licenses or permits or other concessions." Quoted hereunder is an excerpt from Mejorada:[39]
Section 3 cited above enumerates in eleven subsections the corrupt practices of any public officers (sic) declared
unlawful. Its reference to "any public officer" is without distinction or qualification and it specifies the acts
declared unlawful. We agree with the view adopted by the Solicitor General that the last sentence of paragraph
[Section 3] (e) is intended to make clear the inclusion of officers and employees of officers (sic) or government
corporations which, under the ordinary concept of "public officers" may not come within the term. It is a strained
construction of the provision to read it as applying exclusively to public officers charged with the duty of
granting licenses or permits or other concessions. (Emphasis and underscoring supplied)

The above pronouncement was reiterated in Cruz v. Sandiganbayan,[40] where the Court affirmed
the Mejorada ruling that finally puts to rest any erroneous interpretation of the last sentence of Sec. 3(e) of the
Anti-Graft Law.

All the elements of the crimes as charged are present in the case at bar. All told, this Court finds no justification to
depart from the findings of the lower court. Petitioner failed to present any cogent reason that would warrant a
reversal of the Decision assailed in this petition.

WHEREFORE, the petition is DENIED. The Decision of the Sandiganbayan in Criminal Case No. 24182-83
is AFFIRMED in toto.

SO ORDERED.

SECOND DIVISION

[ G.R. No. 192685, July 31, 2013 ]

OSCAR R. AMPIL, PETITIONER, VS. THE HON. OFFICE OF THE OMBUDSMAN, POLICARPIO L. ESPENESIN, REGISTRAR,
REGISTER OF DEEDS, PASIG CITY, FRANCIS SERRANO, YVONNE S. YUCHENGCO, AND GEMA O. CHENG,
RESPONDENTS.

[G.R. No. 199115]

OSCAR R. AMPIL, PETITIONER, VS. POLICARPIO L. ESPENESIN, RESPONDENT.

DECISION

PEREZ, J.:

No less than the Constitution maps out the wide grant of investigatory powers to the Ombudsman. [1] Hand in hand
with this bestowal, the Ombudsman is mandated to investigate and prosecute, for and in behalf of the people,
criminal and administrative offenses committed by government officers and employees, as well as private persons
in conspiracy with the former.[2] There can be no equivocation about this power-and-duty function of the
Ombudsman.

Before us are consolidated petitions separately filed by Oscar R. Ampil (Ampil): (1) one is for certiorari under Rule
65 of the Rules of Court docketed as G.R. No. 192685; and (2) the other is for review on certiorari under Rule 45 of
the Rules of Court docketed as G.R. No. 199115.

Challenged in the petition for certiorari is the Resolution[3] of the Ombudsman in OMB-C-C-07-0444-J, dismissing
the criminal complaint filed by Ampil against respondents Policarpio L. Espenesin (Espenesin), Francis Serrano
(Serrano), Yvonne S. Yuchengco (Yuchengco) and Gema O. Cheng (Cheng), and the Order [4] denying Ampil's motion
for reconsideration thereof. Ampil's complaint charged respondents with Falsification of Public Documents under
Article 171(6) of the Revised Penal Code and violation of Sections 3(a) and (e) of Republic Act No. 3019, The Anti-
Graft and Corrupt Practices Act, as amended.

The appeal by certiorari, on the other hand, assails the Decision of the Court of Appeals in CA G.R. SP No. 113171,
which affirmed the Order dated 13 July 2009 of the Ombudsman in OMB-C-A-07-0474-J on the administrative
aspect of the mentioned criminal complaint for Falsification and violation of Republic Act No. 3019 against the
Registrar of Deeds, respondent Espenesin. Initially, the Ombudsman issued a Decision dated 30 April 2008, finding
Espenesin guilty of Simple Misconduct and meting on Espenesin the penalty of one (1) month suspension. On
motion for reconsideration of Ampil, the Ombudsman favored Espenesin's arguments in his Opposition, and
recalled the one-month suspension the Ombudsman had imposed on the latter.

These consolidated cases arose from the following facts.

On 9 November 1995, ASB Realty Corporation (ASB) and Malayan Insurance Company (MICO) entered into a Joint
Project Development Agreement (JPDA) for the construction of a condominium building to be known as "The
Malayan Tower." Under the JPDA, MICO shall provide the real property located at the heart of the Ortigas Business
District, Pasig City, while ASB would construct, and shoulder the cost of construction and development of the
condominium building.

A year thereafter, on 20 November 1996, MICO and ASB entered into another contract, with MICO selling to ASB
the land it was contributing under the JPDA. Under the Contract to Sell, ownership of the land will vest on ASB only
upon full payment of the purchase price.

Sometime in 2000, ASB, as part of the ASB Group of Companies, filed a Petition for Rehabilitation with Prayer for
Suspension of Actions and Proceedings before the Securities and Exchange Commission (SEC). As a result, the SEC
issued a sixty (60) day Suspension Order (a) suspending all actions for claims against the ASB Group of Companies
pending or still to be filed with any court, office, board, body, or tribunal; (b) enjoining the ASB Group of
Companies from disposing of their properties in any manner, except in the ordinary course of business, and from
paying their liabilities outstanding as of the date of the filing of the petition; and (c) appointing Atty. Monico V.
Jacob as interim receiver of the ASB Group of Companies.[5] Subsequently, the SEC, over the objections of
creditors, approved the Rehabilitation Plan submitted by the ASB Group of Companies, thus:

PREMISES CONSIDERED, the objections to the rehabilitation plan raised by the creditors are hereby
considered unreasonable.

Accordingly, the Rehabilitation Plan submitted by petitioners is hereby APPROVED, except those pertaining to Mr.
Roxas' advances, and the ASB-Malayan Towers. Finally, Interim Receiver Mr. Fortunato Cruz is appointed as
Rehabilitation Receiver.[6] (Emphasis supplied).

Because of the obvious financial difficulties, ASB was unable to perform its obligations to MICO under the JPDA and
the Contract to Sell. Thus, on 30 April 2002, MICO and ASB executed their Third contract, a Memorandum of
Agreement (MOA),[7] allowing MICO to assume the entire responsibility for the development and completion of
The Malayan Tower. At the time of the execution of the MOA, ASB had already paid MICO ?427,231,952.32 out of
the ?640,847,928.48 purchase price of the realty.[8]

The MOA specifies the entitlement of both ASB and MICO to net saleable areas of The Malayan Tower
representing their investments. It provides, in pertinent part:

Section 4. Distribution and Disposition of Units. (a) As a return of its capital investment in the Project, each party
shall be entitled to such portion of all the net saleable area of the Building that their respective contributions to
the Project bear to the actual construction cost. As of the date of the execution hereof, and on the basis of the
total costs incurred to date in relation to the Remaining Construction Costs (as defined in Section 9(a) hereof), the
parties shall respectively be entitled to the following (which entitlement shall be conditioned on, and subject to,
adjustments as provided in sub-paragraph (b) of Section 4 in the event that the actual remaining cost of
construction exceeds the Remaining Construction Cost):

(i) [MICO] the net saleable area particularly described in Schedule 2 hereof.

(ii) ASB the following net saleable area:

(A) the net saleable area which ASB had pre-sold for an aggregate purchase price of P640,085,267.30 as set forth in
Schedule 1 (including all paid and unpaid proceeds of said pre-sales);

(B) the net saleable area particularly described in Schedule 3 hereof which shall be delivered to ASB upon
completion of the Project; and,

(C) provided that the actual remaining construction costs do not exceed the Remaining Construction Cost, the net
saleable area particularly described in Schedule 4 hereof which shall be delivered to ASB upon completion of the
Project and determination of its actual construction costs. If the actual remaining construction costs exceed the
Remaining Construction Cost, sub-paragraph (b) of this Section 4 shall apply.

(b) In the event that the actual remaining construction costs exceed the Remaining Construction Cost as
represented and warranted by ASB to [MICO] under Section 9(a) hereof, and [MICO] pays for such excess, the pro-
rata sharing in the net saleable area of the Building, as provided in sub-paragraph (a) of this Section 4 shall be
adjusted accordingly. In such event, [MICO] shall be entitled to such net saleable area in Schedule 4 that
corresponds to the excess of the actual remaining cost over the Remaining Construction Cost.

(c) To ensure the viability of the Project, the parties agree on a single pricing system, which [MICO] shall have the
exclusive right to fix and periodically adjust based on prevailing market conditions in consultation with, but
without need of consent of, ASB, for each party's primary sale or other disposition of its share in the net saleable
area of the Building. In accordance with the immediately preceding provision, [MICO] hereby adopts the selling
prices set forth in Schedule 5 hereof. Each party or its officers, employees, agents or representatives shall not sell
or otherwise dispose any share of said party in the net saleable area of the Building below the prices fixed by
[MICO] in accordance with this Section 4 (c). [MICO] shall have the exclusive right to adopt financing and
discounting schemes to enhance marketing and sales of units in the Project and such right of [MICO] shall not be
restricted or otherwise limited by the foregoing single pricing system provision.

(d) Each party shall bear the profits earned and losses incurred as well as any and all taxes and other expenses in
connection with the allocation or sale of, or other transaction relating to, the units allotted to each party.[9]

On 11 March 2005, Condominium Certificates of Title (CCTs) for 38 units[10] and the allotted parking spaces were
issued in the name of ASB. On even date but prior to its release, another set of CCTs covering the same subject
units but with MICO as registered owner thereof, was signed by Espenesin in his capacity as Registrar of Deeds of
Pasig City. Notably, Espenesin had likewise signed the CCTs which were originally issued in ASB's name.

On 2 April 2006, counsel for ASB wrote Espenesin calling his attention to the supposed amendment in the CCTs
which he had originally issued in ASB's name.[11] Counsel for ASB demanded that Espenesin effect in the second set
of CCTs, the registration of the subject units in The Malayan Tower back to ASB's name.

On 17 May 2006, Espenesin replied and explained, thus:

The registration of the Malayan-ASB Realty transaction[,] from its inception up to the issuance of titles[,] were all
handled by [respondent] Atty. Francis Serrano. He therefore appeared and we have considered him the legitimate
representative of both parties (sic). His representation, we gathered, covers the interest of both [MICO] and [ASB]
in as far as the titling of the condominium unit[s] are concerned.

Sometime ago [Serrano] requested that condominium titles over specified unit[s] be issued in consonance with the
sharing in the joint venture [MOA]. Titles were correspondingly issued as per request, some in the name of [MICO]
and some in the name of [ASB]. Before its release to the parties, Atty. Serrano came back and requested that some
titles issued in the name of [ASB] be change[d] to [MICO] because allegedly there was error in the issuance.

Believing it was a simple error and on representation of the person we came to know and considered the
representative of both parties, we erased the name ASB Realty Corporation on those specified titles and placed
instead the name Malayan Insurance Company.

To our mind[,] the purpose was not to transfer ownership but merely to rectify an error committed in the issuance
of titles. And since they were well within our capacity to do, the titles not having been released yet to its owner,
we did what we believed was a simple act of rectifying a simple mistake.[12]

After learning of the amendment in the CCTs issued in ASB's name, Ampil, on 23 January 2007, wrote respondents
Yuchengco and Cheng, President and Chief Financial Officer of MICO, respectively, introducing himself as an
unsecured creditor of ASB Holdings, Inc., one of the corporations forming part of the ASB Group of
Companies.[13] Ampil averred that MICO had illegally registered in its name the subject units at The Malayan Tower
which were reserved for ASB under the MOA, and actually, already registered in ASB's name with the Register of
Deeds of Pasig City. Ampil pointed out that the "condominium units should have benefited [him and other]
unsecured creditors [of ASB because the latter had] categorically informed [them] previously that the same would
be contributed to the Asset Pool created under the Rehabilitation Plan of the ASB Group of Companies."
Ultimately, Ampil demanded that Yuchengco and Cheng rectify the resulting error in the CCTs, and facilitate the
registration of the subject units back to ASB's name.

Respondents paid no heed to ASB's and Ampil's demands.

As previously adverted to, Ampil charged respondents with Falsification of Public Documents under Article 171(6)
of the Revised Penal Code and violation of Sections 3(a) and (e) of Republic Act No. 3019 before the Office of the
Ombudsman, alleging the following:

1. Respondents, in conspiracy, erased the name of ASB, and intercalated and substituted the name of MICO under
the entry of registered owner in the questioned CCTs covering the subject units of The Malayan Tower;

2. The alterations were done without the necessary order from the proper court, in direct violation of Section
108[14] of Presidential Decree No. 1529;

3. Respondents violated Article 171(6) of the Revised Penal Code by:

3.1 Altering the CCTs which are public documents;

3.2 Effecting the alterations on genuine documents;

3.3 Changing the meaning of the CCTs with MICO now appearing as registered owner of the subject units in
Malayan Tower; and
3.4 Effectively, making the documents speak something false when ASB is the true owner of the subject units, and
not MICO.

4. Ampil, as unsecured creditor of ASB, was unjustly prejudiced by the felonious acts of respondents;

5. Respondents violated Sections 3(a) and (e) of Republic Act No. 3019:

5.1 Respondent Espenesin, as Registrar of the Pasig City Registry of Deeds, committed an offense in connection
with his official duties by allowing himself to be persuaded, induced or influenced by respondent Serrano into
altering the questioned CCTs; and

5.2 The actions of respondent Espenesin demonstrate manifest partiality, evident bad faith and/or, at the least,
gross inexcusable negligence.

6. Respondents Yuchengco and Cheng, being responsible officers of MICO, as principals by inducement and
conspirators of Espenesin and Serrano, are likewise liable for falsification of the CCTs and violation of Sections 3(a)
and (e) of Republic Act No. 3019.[15]

As required by the Ombudsman, respondents filed their counter-affidavits: Espenesin and Serrano filed
individually, while Yuchengco and Cheng filed jointly. Respondents' respective counter-affidavits uniformly denied
petitioner's charges and explicated as follows:

Respondent Espenesin countered, among others, (i) that their intention was only to cause the necessary
rectification on certain errors made on the CCTs in issue; (ii) that since the CCTs were not yet issued and released
to the parties, it is still within his authority, as part of the registration process, to make the necessary amendments
or corrections thereon; (iii) that no court order would be necessary to effect such changes, the CCTs still being
within the control of the Register of Deeds and have not yet been released to the respective owners; (iv) that the
amendments were made not for the purpose of falsifying the CCTs in issue but to make the same reflect and
declare the truth; and (v) that he merely made the corrections in accordance with the representations of
respondent Serrano who he believed to be guarding and representing both the interests of MICO and ASB.

Respondent Serrano, on the other hand, argued: (i) that the units in issue are not yet owned by ASB; (ii) that these
units were specifically segregated and reserved for MICO in order to answer for any excess in the estimated cost
that it will expend in the completion of the [Malayan Tower]; (iii) that ASB is only entitled to these reserved units
only after the [Malayan Tower] is completed and that the units are not utilized to cover for the increase in the cost
expended by MICO pursuant to Section 4(c) of the MOA; (iv)that the [Malayan Tower] was still incomplete at the
time when the alterations were made on the CCT, hence, the claim of ownership of ASB over the reserved units is
premature and totally baseless; (v) that prior to the fulfillment of the resolutory condition, that is, after the
completion of the [Malayan Tower] and there remains a balance in the Remaining Construction Cost, the units still
rightfully belongs to MICO; and (vi) that the alteration was made merely for the purpose of correcting an error.

Respondents Cheng and Yuchengco, while [adopting the foregoing arguments of Espenesin and Serrano, further
averred that]: (i)[Ampil] has no legal personality to file this suit, he being merely an unsecured creditor of ASB
whose interest was not definitively shown to have been damaged by the subject controversy; (ii) that their
participation as respondents and alleged co-conspirators of Serrano and Espenesin was not clearly shown and
defined in the complaint; (iii) the CCTs issued in the name of ASB have not yet been entered in the Registration
Book at the time when the alterations were effected, hence, the same could still be made subject of appropriate
amendments; (iv) that the CCTs in issue named in favor of ASB were mere drafts and cannot legally be considered
documents within the strict definition of the law; (v) that court order authorizing to amend a title is necessary only
if the deed or document sought to be registered has already been entered in the registration book; and (vi) that
MICO is the duly registered owner of the land on which [Malayan Tower] stands and ASB was merely referred to as
the developer.[16]
Thereafter, the Ombudsman issued the assailed Resolution in G.R. No. 192685 dismissing Ampil's complaint. For
the Ombudsman, the resolution of whether respondents falsified the CCTs must be prefaced by a determination of
who, between MICO and ASB, is the rightful owner of the subject units. The Ombudsman held that it had no
authority to interpret the provisions of the MOA and, thus, refrained from resolving the preliminary question of
ownership. Given the foregoing, the Ombudsman was hard pressed to make a categorical finding that the CCTs
were altered to speak something false. In short, the Ombudsman did not have probable cause to indict
respondents for falsification of the CCTs because the last element of the crime, i.e., that the change made the
document speak something false, had not been established.

Significantly, the Ombudsman did not dispose of whether probable cause exists to indict respondents for violation
of Sections 3(a) and (e) of Republic Act No. 3019.

Ampil filed a Motion for Reconsideration. However, in yet another setback, the Ombudsman denied Ampil's
motion and affirmed the dismissal of his complaint.

On the administrative litigation front and as previously narrated, the Ombudsman found Espenesin liable for
Simple Misconduct. However, on motion for reconsideration of Ampil praying for a finding of guilt against
Espenesin for Grave Misconduct and Dishonesty, the Ombudsman reconsidered its earlier resolution and recalled
the one-month suspension meted on Espenesin.

Thereafter, Ampil filed a petition for review under Rule 43 of the Rules of Court before the appellate court. And as
already stated, the appellate court affirmed the Ombudsman's resolution absolving Espenesin of not just Grave
Misconduct and Dishonesty, but also of Simple Misconduct.

Hence, this dual recourse by Ampil: first, alleging grave abuse of discretion in the Ombudsman's failure to find
probable cause to indict respondents for Falsification of Public Documents under Article 171(6) of the Revised
Penal Code, and for their commission of corrupt practices under Sections 3(a) and (e) of Republic Act No. 3019;
and second, raising grievous error of the Court of Appeals in affirming the Ombudsman's absolution of Espenesin
from administrative liability.

To obviate confusion, we shall dispose of the first issue, i.e., whether probable cause exists to indict respondents
for Falsification of Public Documents under Article 171(6) of the Revised Penal Code and for their commission of
corrupt practices under Sections 3(a) and (e) of Republic Act No. 3019.

Despite the Ombudsman's categorical dismissal of his complaint, Ampil is adamant on the existence of probable
cause to bring respondents to trial for falsification of the CCTs, and for violation of Sections 3(a) and (e) of Republic
Act No. 3019. In fact, he argues that Espenesin has been held administratively liable by the Ombudsman for
altering the CCTs. At the time of the filing of G.R. No. 192685, the Ombudsman had not yet reversed its previous
resolution finding Espenesin liable for simple misconduct. He insists that the admission by respondents Espenesin
and Serrano that they altered the CCTs should foreclose all questions on all respondents' (Espenesin's, Serrano's,
Yuchengco's and Cheng's) liability for falsification and their commission of corrupt practices, under the Revised
Penal Code and Republic Act No. 3019, respectively. In all, Ampil maintains that the Ombudsman's absolution of
respondents is tainted with grave abuse of discretion.

G.R. No. 192685 is partially impressed with merit. Accordingly, we find grave abuse of discretion in the
Ombudsman's incomplete disposition of Ampil's complaint.

That the Ombudsman is a constitutional officer duty bound to "investigate on its own, or on complaint by any
person, any act or omission of any public official, employee, office or agency, when such act or omission appears to
be illegal, unjust, improper, or inefficient"[17]brooks no objection. The Ombudsman's conduct of preliminary
investigation is both power and duty. Thus, the Ombudsman and his Deputies, are constitutionalized as protectors
of the people, who "shall act promptly on complaints filed in any form or manner against public officials or
employees of the government x x x, and shall, x x x notify the complainants of the action taken and the result
thereof."[18]

The raison d'être for its creation and endowment of broad investigative authority is to insulate the Office of the
Ombudsman from the long tentacles of officialdom that are able to penetrate judges' and fiscals' offices, and
others involved in the prosecution of erring public officials, and through the execution of official pressure and
influence, quash, delay, or dismiss investigations into malfeasances and misfeasances committed by public
officers.[19]

Plainly, the Ombudsman has "full discretion," based on the attendant facts and circumstances, to determine the
existence of probable cause or the lack thereof.[20] On this score, we have consistently hewed to the policy of non-
interference with the Ombudsman's exercise of its constitutionally mandated powers. [21] The Ombudsman's finding
to proceed or desist in the prosecution of a criminal case can only be assailed through certiorari proceedings
before this Court on the ground that such determination is tainted with grave abuse of discretion which
contemplates an abuse so grave and so patent equivalent to lack or excess of jurisdiction. [22]

However, on several occasions, we have interfered with the Ombudsman's discretion in determining probable
cause:

(a) To afford protection to the constitutional rights of the accused;

(b) When necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions;
(c) When there is a prejudicial question which is sub judice;
(d) When the acts of the officer are without or in excess of authority;
(e) Where the prosecution is under an invalid law, ordinance or regulation;
(f) When double jeopardy is clearly apparent;
(g) Where the court has no jurisdiction over the offense;
(h) Where it is a case of persecution rather than prosecution;
(i) Where the charges are manifestly false and motivated by the lust for vengeance. [23] (Emphasis supplied).

The fourth circumstance is present in G.R. No. 192685.

While we agree with the Ombudsman's disquisition that there is no probable cause to indict respondents for
Falsification of Public Documents under Article 171(6) of the Revised Penal Code, we are puzzled why the
Ombudsman completely glossed over Ampil's charge that respondents committed prohibited acts listed in Sections
3(a) and (e) of Republic Act No. 3019. Nowhere in the Resolution or in the Order denying reconsideration thereof
did the Ombudsman tackle and resolve the issue of whether respondents violated the particular provisions of
Republic Act No. 3019.

Curiously, the Ombudsman docketed Ampil's complaint-affidavit as one "for: Falsification of Public Documents and
Violation of Section[s] 3(a) [and] (e) of [Republic Act] No. 3019, as amended."[24] The Ombudsman even prefaced
the Resolution, thus: "[t]his has reference to the complaint filed by Oscar Ampil on [17 September 2007] against
[respondents], for Falsification of Public Documents and Violation of Sections 3, paragraphs (a) and (e) of Republic
Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, as amended."[25]

The Ombudsman's silence on the component anti-graft charges is pointed up by the specific allegations in Ampil's
complaint-affidavit that:

18. The acts of ATTY. ESPENESIN and his co-conspirators are clear violations of Section 3 paragraph (a) and/or (e)
of Republic Act No. 3019 otherwise known as the Anti-Graft and Corrupt Practices Act x x x;

xxxx
19. On the basis of the evidence x x x and the admissions of the conspirators themselves, ATTY. ESPENESIN is liable
under both pars. (a) and (e) thereof or either of the two. By maliciously and feloniously altering the subject CCT's
(sic), contrary to law and to the prejudice of ASB and [Ampil], ATTY. ESPENESIN committed an offense in
connection with his official duties and he admitted having done so in conspiracy with his co-respondents. x x x
ATTY. ESPENESIN allowed himself to be persuaded, induced or influenced into committing such violation or offense
which is the substance of par. (a) of RA 3019;

20. In committing such unauthorized and unlawful alterations on the subject CCT's (sic), ATTY. ESPENESIN caused
undue injury to ASB and to [AMPIL as an] unsecured creditor, who is ultimately one of the beneficiaries of said CCT
from the ASSET POOL created by the SEC, and gave MICO unwarranted benefits, advantage or preference in the
discharge of his official duties as Register of Deeds of Pasig City. Such acts were admitted by ATTY. ESPENESIN in
his letter to ASB x x x. Such acts[,] taken together with his admission[,] indubitably show ATTY. ESPENESIN's
manifest partiality, evident bad faith and/or[,] at the least, his gross inexcusable negligence in doing the same;

21. ATTY. ESPENESIN is liable under Section 3 pars. (a) and/or (e) of RA 3019[,] as well as under Article 171 par. 6 of
the RPC. ATTY. SERRANO, YVONNE S. YUCHENGCO and (sic) GEMMA O. CHENG are also liable for violation of the
said provisions of law in conspiracy with ATTY. ESPENESIN, the latter as a principal via direct participation, ATTY.
SERRANO, as principal by inducement and YUCHENGCO and CHENG, also by inducement[,] [who] being responsible
officers of MICO ultimately benefited from said unlawful act[.][26]

and the pith of the Resolution which carefully and meticulously dissected the presence of the first three definitive
elements of the crime of falsification under Article 171(6) of the Revised Penal Code:

The first three definitive elements of the crime, albeit present, are defeated by the absence of the fourth.

The respondents readily admitted that an alteration was indeed made on the CCTs in issue allegedly for the
purpose of correcting a mistake in the name of the registered owner of the condominium units involved. Said
alteration had obviously changed the tenor of the CCTs considering that ASB, the initially named owner, was
changed into MICO. The first and third elements are undeniably present.

Anent the second element, the respondents argued that the CCTs in issue were mere drafts and are not legally
considered "genuine documents" within the strict definition of the law. Albeit the contention is partially true, no
proof has been shown to prove that the CCTs issued in favor of ASB were mere drafts.

The CCTs of ASB are obviously complete. If we are to compare it with the appearance and contents of the CCTs
issued in favor of MICO, one will notice no definitive difference between the two except that one set was named in
favor of ASB and the other set, in favor of MICO. Nothing is shown that will clearly prove that the former were
mere drafts and the latter are the final copies. As far as the appearance of the CCTs of ASB is concerned, all appear
to be complete and genuine. Proof to the contrary must be shown to prove otherwise.

Delivery of the titles to the named owners is not a pre-requisite before all these CCTs can be legally categorized as
genuine documents. The fact that the same had already been signed by respondent Espenesin in his capacity as
Registrar of Deeds of Pasig City and the notations imprinted thereon appeared to have been entered on March 11,
2005 at 11:55 a.m. at the Registry Books of Pasig City, the CCTs in issue are bound to be treated as genuine
documents drafted and signed in the regular performance of duties of the officer whose signature appears
thereon.[27]

On the whole, the Ombudsman's discussion was straightforward and categorical, and ultimately established that
Espenesin, at the urging of Serrano, altered the CCTs issued in ASB's name resulting in these CCTs ostensibly
declaring MICO as registered owner of the subject units at The Malayan Tower.
Despite the admission by Espenesin that he had altered the CCTs and the Ombudsman's findings thereon, the
Ombudsman abruptly dismissed Ampil's complaint-affidavit, resolving only one of the charges contained therein
with nary a link regarding the other charge of violation of Sections 3(a) and (e) of Republic Act No. 3019. Indeed, as
found by the Ombudsman, the 4th element of the crime of Falsification of Public Documents is lacking, as the actual
ownership of the subject units at The Malayan Tower has yet to be resolved. Nonetheless, this circumstance does
not detract from, much less diminish, Ampil's charge, and the evidence pointing to the possible commission, of
offenses under Sections 3(a) and (e) of the Anti-Graft and Corrupt Practices Act.

Sections 3(a) and (e) of Republic Act No. 3019 reads:

Section 3. Corrupt practices of public officers. In addition to acts or omissions of public officers already penalized
by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be
unlawful:

(a) Persuading, inducing or influencing another public officer to perform an act constituting a violation of rules and
regulations duly promulgated by competent authority or an offense in connection with the official duties of the
latter, or allowing himself to be persuaded, induced, or influenced to commit such violation or offense.

xxxx

(e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted
benefits, advantage or preference in the discharge of his official, administrative or judicial functions through
manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and
employees of offices or government corporations charged with the grant of licenses or permits or other
concessions.

The elements of Section 3(a) of Republic Act No. 3019 are:

(1) the offender is a public officer;

the offender persuades, induces, or influences another public officer to perform an act or the offender allows
(2)
himself to be persuaded, induced, or influenced to commit an act;
the act performed by the other public officer or committed by the offender constitutes a violation of rules
(3) and regulations duly promulgated by competent authority or an offense in connection with the official duty
of the latter. (Emphasis supplied).

Whereas, paragraph (e) of the same section lists the following elements:

(1) the offender is a public officer;

(2) the act was done in the discharge of the public officer's official, administrative or judicial functions;
(3) the act was done through manifest partiality, evident bad faith, or gross inexcusable negligence; and
the public officer caused any undue injury to any party, including the Government, or gave any unwarranted
(4)
benefits, advantage or preference.[28]

As Registrar of the Registry of Deeds of Pasig City, Espenesin is tasked, among others, to review deeds and other
documents for conformance with the legal requirements of registration. [29] Section 10 of Presidential Decree No.
1529, Amending and Codifying the Laws Relative to Registration of Property and for Other Purposes provides:

Section 10. General functions of Registers of Deeds. The office of the Register of Deeds constitutes a public
repository of records of instruments affecting registered or unregistered lands and chattel mortgages in the
province or city wherein such office is situated.

It shall be the duty of the Register of Deeds to immediately register an instrument presented for registration
dealing with real or personal property which complies with all the requisites for registration. He shall see to it that
said instrument bears the proper documentary and science stamps and that the same are properly cancelled. If the
instrument is not registerable, he shall forthwith deny registration thereof and inform the presentor of such denial
in writing, stating the ground or reason therefore, and advising him of his right to appeal by consulta in accordance
with Section 117 of the Decree.

Most importantly, a Registrar of the Registry of Deeds is charged with knowledge of Presidential Decree No. 1529,
specifically Sections 57[30] and 108.[31]

In the instant case, the elements of the offenses under Sections 3(a) and (e) of Republic Act No. 3019, juxtaposed
against the functions of a Registrar of the Registry of Deeds establish a prima facie graft case against Espenesin and
Serrano only. Under Section 3(a) of Republic Act No. 3019, there is a prima facie case that Espenesin, at the urging
of Serrano, allowed himself to be persuaded to alter the CCTs originally issued in ASB's name, against the
procedure provided by law for the issuance of CCTs and registration of property. In addition, under Section 3(e) of
the same law, there is likewise a prima facie case that Espenesin, through gross inexcusable negligence, by simply
relying on the fact that all throughout the transaction to register the subject units at The Malayan Tower he liaised
with Serrano, gave MICO an unwarranted benefit, advantage or preference in the registration of the subject units.

In Sison v. People of the Philippines, we expounded on Section 3(e) of Republic Act No. 3019:

The third element of Section 3 (e) of RA 3019 may be committed in three ways, i.e., through manifest partiality,
evident bad faith or gross inexcusable negligence. Proof of any of these three in connection with the prohibited
acts mentioned in Section 3(e) of RA 3019 is enough to convict.

Explaining what "partiality," "bad faith" and "gross negligence" mean, we held:

"Partiality" is synonymous with "bias" which "excites a disposition to see and report matters as they are wished for
rather than as they are." "Bad faith does not simply connote bad judgment or negligence; it imputes a dishonest
purpose or some moral obliquity and conscious doing of a wrong; a breach of sworn duty through some motive or
intent or ill will; it partakes of the nature of fraud." "Gross negligence has been so defined as negligence
characterized by the want of even slight care, acting or omitting to act in a situation where there is a duty to act,
not inadvertently but wilfully and intentionally with a conscious indifference to consequences in so far as other
persons may be affected. It is the omission of that care which even inattentive and thoughtless men never fail to
take on their own property."

In the instant case, petitioner was grossly negligent in all the purchases that were made under his watch.
Petitioner's admission that the canvass sheets sent out by de Jesus to the suppliers already contained his
signatures because he pre-signed these forms only proved his utter disregard of the consequences of his actions.
Petitioner also admitted that he knew the provisions of RA 7160 on personal canvass but he did not follow the
law because he was merely following the practice of his predecessors. This was an admission of a mindless
disregard for the law in a tradition of illegality. This is totally unacceptable, considering that as municipal mayor,
petitioner ought to implement the law to the letter. As local chief executive, he should have been the first to
follow the law and see to it that it was followed by his constituency. Sadly, however, he was the first to break it.

Petitioner should have complied with the requirements laid down by RA 7160 on personal canvass, no matter how
strict they may have been. Dura lex sed lex. The law is difficult but it is the law. These requirements are not empty
words but were specifically crafted to ensure transparency in the acquisition of government supplies, especially
since no public bidding is involved in personal canvass. Truly, the requirement that the canvass and awarding of
supplies be made by a collegial body assures the general public that despotic, irregular or unlawful transactions do
not occur. It also guarantees that no personal preference is given to any supplier and that the government is given
the best possible price for its procurements.

The fourth element is likewise present. While it is true that the prosecution was not able to prove any undue
injury to the government as a result of the purchases, it should be noted that there are two ways by which
Section 3(e) of RA 3019 may be violated the first, by causing undue injury to any party, including the
government, or the second, by giving any private party any unwarranted benefit, advantage or preference.
Although neither mode constitutes a distinct offense, an accused may be charged under either mode or both.
The use of the disjunctive "or' connotes that the two modes need not be present at the same time. In other
words, the presence of one would suffice for conviction.

Aside from the allegation of undue injury to the government, petitioner was also charged with having given
unwarranted benefit, advantage or preference to private suppliers. Under the second mode, damage is not
required.

The word "unwarranted" means lacking adequate or official support; unjustified; unauthorized or without
justification or adequate reason. "Advantage" means a more favorable or improved position or condition; benefit,
profit or gain of any kind; benefit from some course of action. "Preference" signifies priority or higher evaluation or
desirability; choice or estimation above another.

In order to be found guilty under the second mode, it suffices that the accused has given unjustified favor or
benefit to another, in the exercise of his official, administrative or judicial functions. Petitioner did just that. The
fact that he repeatedly failed to follow the requirements of RA 7160 on personal canvass proves that unwarranted
benefit, advantage or preference was given to the winning suppliers. These suppliers were awarded the
procurement contract without the benefit of a fair system in determining the best possible price for the
government. The private suppliers, which were all personally chosen by respondent, were able to profit from the
transactions without showing proof that their prices were the most beneficial to the government. For that,
petitioner must now face the consequences of his acts.[32] (Emphasis supplied).

We stress that the Ombudsman did not find probable cause to indict respondents for falsification simply because
the Ombudsman could not categorically declare that the alteration made the CCT speak falsely as the ownership of
the subject units at The Malayan Tower had yet to be determined. However, its initial factual findings on the
administrative complaint categorically declared, thus:

x x x [Espenesin] justified his action by asseverating that since the CCTs were still under the possession and control
of the Register of Deeds and have not yet been distributed to the owners, amendments can still be made thereon.

It is worthy to note that the CCTs of ASB, at the time when the amendment was made, were obviously complete.
From its face, we can infer that all have attained the character of a binding public document. The signature of
[Espenesin] is already affixed thereon, and on its face, it was explicitly declared that the titles have already been
entered in the Registration Book of the Register of Deeds of Pasig City on March 11, 2005 at 11:55 a.m. Allegations
to the contrary must be convincingly and positively proven, otherwise, the presumption holds that the CCTs issued
in the name of ASB were regular and the contents thereon binding.

Stated in a different light, delivery of the titles to the named owners is not a pre-requisite before all these CCTs
can be legally categorized as genuine documents. The fact that the same had already been signed by x x x
Espenesin in his capacity as Register of Deeds of Pasig City and the notations imprinted thereon appeared to have
been entered on March 11, 2005 at 11:55 a.m. at the Registry Books of Pasig City, the CCTs in issue are bound to
be treated as genuine documents drafted and signed in the regular performance of duties of the officer whose
signature appears thereon. The law has made it so clear that it is the entry of the title in the Registration Book that
controls the discretion of the Register of Deeds to effect the necessary amendments and not the actual delivery of
the titles to the named owners.

This being the case, strict compliance with the mandates of Section 108 of P.D. 1529 is strictly called for. The
provision is clear that upon entry of a certificate of title (which definitely includes Condominium Certificate of
Title) attested to by the Register of Deeds, no amendment shall be effected thereon except upon lawful order of
the court.

In the instant case, it became obvious that after the CCTs of ASB were entered in the Registration Book on
March 11, 2005 at exactly 11:55 a.m., the notations thereon were thereafter amended by [Espenesin] when
Atty. Serrano purportedly informed him of the alleged error inscribed therein. The proper remedy that should
have been undertaken by [Espenesin] soon after he was informed of the error is to either initiate the appropriate
petition himself or to suggest to the parties to the MOA to file said petition in court for the amendment of the
CCTs. An amendment by way of a shortcut is not allowed after entry of the title in the Registration Book.

xxxx

If the Regional Trial Court sitting as a land registration court is not legally authorized to determine the respective
rights of the parties to the MOA when deciding on the petition for amendment and cancellation of title, all the
more with the Registrar of Deeds who is legally not empowered to make such determination and to cause an
automatic amendment of entries in the Registration Book on the basis of his unauthorized determination.

[Espenesin's] liability is grounded on the untimely and unauthorized amendment of the CCTs in issue. This is
regardless of whether the amendment had made the CCTs speak of either a lie or the truth. What defines his
error is his inability to comply with the proper procedure set by law.[33] (Emphasis supplied).

We likewise stress that the determination of probable cause does not require certainty of guilt for a crime. As the
term itself implies, probable cause is concerned merely with probability and not absolute or even moral
certainty;[34] it is merely based on opinion and reasonable belief.[35] It is sufficient that based on the preliminary
investigation conducted, it is believed that the act or omission complained of constitutes the offense charged.
Well-settled in jurisprudence, as in Raro v. Sandiganbayan,[36] that:

x x x [P]robable cause has been defined 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.[37]

Probable cause is a reasonable ground for presuming that a matter is or may be well-founded on such state of
facts in the prosecutor's mind as would lead a person of ordinary caution and prudence to believe or entertain an
honest or strong suspicion that it is so.[38]

A finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been
committed and there is enough reason to believe that it was committed by the accused. It need not be based on
clear and convincing evidence of guilt, neither on evidence establishing absolute certainty of guilt.[39]

A finding of probable cause does not require an inquiry into 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 evidence of the prosecution in support of the charge. [40]

A finding of probable cause merely binds over the suspect to stand trial. It is not a pronouncement of guilt.
The term does not mean "actual and positive cause" nor does it import absolute certainty. It is merely based on
opinion and reasonable belief. x x x Probable cause does not require an inquiry into whether there is sufficient
evidence to procure a conviction.[41] (Emphasis and italics supplied).

In this instance, Espenesin explains and categorically admits that he altered, nay corrected, 38 certificates of title
which we again reproduce for easy reference:

Sometime ago [Serrano] requested that condominium titles over specified unit[s] be issued in consonance with the
sharing in the joint venture [MOA]. Titles were correspondingly issued as per request, some in the name of [MICO]
and some in the name of [ASB]. Before its release to the parties, Atty. Serrano came back and requested that some
titles issued in the name of [ASB] be change[d] to [MICO] because allegedly there was error in the issuance.

Believing it was a simple error and on representation of the person we came to know and considered the
representative of both parties, we erased the name ASB Realty Corporation on those specified titles and placed
instead the name Malayan Insurance Company.

To our mind[,] the purpose was not to transfer ownership but merely to rectify an error committed in the issuance
of titles. And since they were well within our capacity to do, the titles not having been released yet to its owner,
we did what we believed was a simple act of rectifying a simple mistake.[42]

The letter of Espenesin itself underscores the existence of a prima facie case of gross negligence:

1. Serrano transacted the registration of the units in The Malayan Tower with the Office of the Register of Deeds,
Pasig City;

2. Serrano had previously presented a joint venture agreement, the MOA, which Espenesin followed in the initial
preparation and issuance of the titles;

3. Before some CCTs initially issued in ASB's name were released, Serrano returned and requested that some titles
issued in the name of ASB be changed to MICO because those titles were supposedly erroneously registered to
ASB; and

4. Just on Serrano's utterance and declaration which Espenesin readily believed because he considered Serrano the
representative of both parties, and without any other documentation to base the amendment on,
Espenesin erased the name of ASB on those specified titles and replaced it with the name of MICO.

Espenesin, a Registrar of Deeds, relied on Serrano's word alone that a supposed error has been committed. Even if
ownership of the units covered by the amended CCTs has not been categorically declared as ASB's given the
ongoing dispute between the parties, the MOA which Espenesin had previously referred to, allocates those units to
ASB:

Section 4. Distribution and Disposition of Units. (a) As a return of its capital investment in the Project, each party
shall be entitled to such portion of all the net saleable area of the Building that their respective contributions to
the Project bear to the actual construction cost. As of the date of the execution hereof, and on the basis of the
total costs incurred to date in relation to the Remaining Construction Costs (as defined in Section 9(a) hereof), the
parties shall respectively be entitled to the following (which entitlement shall be conditioned on, and subject to,
adjustments as provided in sub-paragraph (b) of Section 4 in the event that the actual remaining cost of
construction exceeds the Remaining Construction Cost):

(i) [MICO] the net saleable area particularly described in Schedule 2 hereof.
(ii) ASB the following net saleable area:

(A) the net saleable area which ASB had pre-sold for an aggregate purchase price of P640,085,267.30 as set forth in
Schedule 1 (including all paid and unpaid proceeds of said pre-sales);

(B) the net saleable area particularly described in Schedule 3 hereof which shall be delivered to ASB upon
completion of the Project; and,

(C) provided that the actual remaining construction costs do not exceed the Remaining Construction Cost, the net
saleable area particularly described in Schedule 4 hereof which shall be delivered to ASB upon completion of the
Project and determination of its actual construction costs. If the actual remaining construction costs exceed the
Remaining Construction Cost, sub-paragraph (b) of this Section 4 shall apply.[43]

The MOA even recognizes and specifies that:

E. ASB has pre-sold a number of condominium units in the Project to certain buyers as set forth in Schedule 1
hereof, and in order to protect the interests of these buyers and preserve the interest in the Project, the goodwill
and business reputation of Malayan, Malayan has proposed to complete the Project, and ASB has accepted such
proposal, subject to the terms and conditions contained herein, including the contribution to the Project (a) by
Malayan of the Lot and (b) by ASB of its interest as buyer under the Contract to Sell.

xxxx

Section 3. Recognition of ASB's Investment. The parties confirm that as of the date hereof, ASB invested in the
Project an amount equivalent to its entitlement to the net saleable area of the Building under Section 4 below,
including ASB's interest as buyer under the Contract to Sell. [44]

One fact deserves emphasis. The ownership of the condominium units remains in dispute and, by necessary
inference, does not lie as well in MICO. By his baseless reliance on Serrano's word and representation, Espenesin
allowed MICO to gain an unwarranted advantage and benefit in the titling of the 38 units in The Malayan Tower.

That a prima facie case for gross negligence amounting to violation of Sections 3(a) and (e) of Republic Act No.
3019 exists is amply supported by the fact that Espenesin disregarded the well-established practice necessitating
submission of required documents for registration of property in the Philippines:

Documents Required for Registration of Real Property with the Register of Deeds:

1. Common Requirements
Original copy of the Deed or Instrument (Original Copy + 2 duplicate copies)If the original copy cannot be
o produced, the duplicate original or certified true copy shall be presented accompanied with a sworn affidavit
executed by the interested party why the original copy cannot be presented.
Owner's copy of the Certificate of Title or Co-owner's copy if one has been issued. (Original Copy + 2 duplicate
o
copies)
o Latest Tax Declaration if the property is an unregistered land. (Original Copy + 2 duplicate copies)
2. Specific Requirements
1. Deed of Sale/Transfer
xxxx
♦ For Corporation
1. Secretary's Certificate or Board Resolution to Sell or Purchase (Original Copy + Duplicate Copy)
2. Articles of Incorporation (for transferee corporation) (1 Certified Copy of the Original)
 Certificate of the Securities and Exchange Commission (SEC) that the Articles of Incorporation had been
3.
registered . (1 Certified Copy of the Original)
For Condominium or Condominium Certificate of Transfer, affidavit/certificate of the Condominium
4.
Corporation that the sale/transfer does not violate the 60-40 rule.(Original Copy + 1 Duplicate Copy)
5. Subsequent transfer of CCT requires Certificate of the Condominium Management. (Original Copy)
6. Sale by a Corporation Sole, court order is required.(Original copy of the Court Order)
Additional Requirements
xxxx
11. Condominium Projects
♦ Master Deed (Original Copy + 1 Duplicate Copy)
♦ Declaration of Restriction (Original Copy + 1 Duplicate Copy)
♦ Diagrammatic Floor Plan (Original Copy + 1 Duplicate Copy)
If the Condominium Certificate of Title is issued for the first time in the name of the registered owner, require
the following:
o Certificate of Registration with the Housing and Land Use Regulatory Board (Original Copy + 1 Duplicate Copy)
o Development Permit (Original Copy + 1 Duplicate Copy)
o License to Sell (Original Copy + 1 Duplicate Copy)[45]

Espenesin, by his own explanation, relied on nothing more than Serrano, who he "came to know and considered as
representative of both parties," and Serrano's interpretation of the MOA that Serrano had brought with him.

On the whole, there is sufficient ground to engender a well-founded belief that respondents Espenesin and
Serrano committed prohibited acts listed in Sections 3(a) and (e) of Republic Act No. 3019.

As regards Yuchengco and Cheng, apart from Ampil's general assertions that the two, as officers of MICO,
benefited from the alteration of the CCTs, there is a dearth of evidence pointing to their collective responsibility
therefor. While the fact of alteration was admitted by respondents and was affirmed in the Ombudsman's finding
of fact, there is nothing that directly links Yuchengco and Cheng to the act.

We are aware that the calibration of evidence to assess whether a prima facie graft case exists against
respondents is a question of fact. We have consistently held that the Supreme Court is not a trier of facts, more so
in the consideration of the extraordinary writ of certiorariwhere neither questions of fact nor law are entertained,
but only questions of lack or excess of jurisdiction or grave abuse of discretion. [46]In this case,
however, certiorari will lie, given that the Ombudsman made no finding at all on respondents possible liability for
violation of Sections 3(a) and (e) of Republic Act No. 3019.

We hasten to reiterate that we are only dealing herein with the preliminary investigation aspect of this case. We
do not adjudge respondents' guilt or the lack thereof. The assertions of Espenesin and Serrano on the former's
good faith in effecting the alteration and the pending arbitration case before the Construction Industry Arbitration
Commission involving the correct division of MICO's and ASB's net saleable areas in The Malayan Tower are
matters of defense which they should raise during trial of the criminal case.

As regards the administrative liability of Espenesin, the basic principle in the law of public officers is the three-fold
liability rule, which states that the wrongful acts or omissions of a public officer, Espenesin in these cases, may give
rise to civil, criminal and administrative liability. An action for each can proceed independently of the others.[47]

On this point, we find that the appellate court erred when it affirmed the Ombudsman's last ruling that Espenesin
is not administratively liable.

Misconduct is a transgression of some established and definite rule of action, more particularly, unlawful behavior
or gross negligence by a public officer.[48]

In Grave Misconduct, as distinguished from Simple Misconduct, the elements of corruption, clear intent to violate
the law or flagrant disregard of established rules, must be manifest[49] and established by substantial evidence.
Grave Misconduct necessarily includes the lesser offense of Simple Misconduct. [50] Thus, a person charged with
Grave Misconduct may be held liable for Simple Misconduct if the misconduct does not involve any of the
elements to qualify the misconduct as grave.[51]

In (G.R. No. 199115), the elements particular to Grave Misconduct are, by the Ombudsman's own finding, present.
Corruption, as an element of Grave Misconduct, consists in the act of an official or fiduciary person who unlawfully
and wrongfully uses his station or character to procure some benefit for himself or for another person, contrary to
duty and the rights of others.[52] This has already been demonstrated as discussed above. And, there is here a
manifest disregard for established rules on land registration by a Register of Deeds himself. As he himself admits in
his letter, Espenesin erased the name of ASB on the specified CCTs because he believed that Serrano's request for
the re-issuance thereof in MICO's name constituted simple error.

Section 108 of Presidential Decree No. 1529 provides:

Section 108. Amendment and alteration of certificates. No erasure, alteration, or amendment shall be made upon
the registration book after the entry of a certificate of title or of a memorandum thereon and the attestation of
the same be Register of Deeds, except by order of the proper Court of First Instance. A registered owner of other
person having an interest in registered property, or, in proper cases, the Register of Deeds with the approval of the
Commissioner of Land Registration, may apply by petition to the court upon the ground that the registered
interests of any description, whether vested, contingent, expectant or inchoate appearing on the certificate, have
terminated and ceased; or that new interest not appearing upon the certificate have arisen or been created; or
that an omission or error was made in entering a certificate or any memorandum thereon, or, on any duplicate
certificate; or that the same or any person on the certificate has been changed; or that the registered owner has
married, or, if registered as married, that the marriage has been terminated and no right or interests of heirs or
creditors will thereby be affected; or that a corporation which owned registered land and has been dissolved has
not convened the same within three years after its dissolution; or upon any other reasonable ground; and the
court may hear and determine the petition after notice to all parties in interest, and may order the entry or
cancellation of a new certificate, the entry or cancellation of a memorandum upon a certificate, or grant any other
relief upon such terms and conditions, requiring security or bond if necessary, as it may consider proper; Provided,
however, That this section shall not be construed to give the court authority to reopen the judgment or decree of
registration, and that nothing shall be done or ordered by the court which shall impair the title or other interest of
a purchaser holding a certificate for value and in good faith, or his heirs and assigns, without his or their written
consent. Where the owner's duplicate certificate is not presented, a similar petition may be filed as provided in the
preceding section.

The foregoing clearly speaks of a court order prior to any erasure, alteration or amendment upon a certificate of
title.

In reversing its prior ruling, the Ombudsman cavalierly dismisses the fact of Espenesin already signing the CCTs
issued in ASB's name as "only a part of the issuance process because the final step in the titling procedure is
indeed the release of the certificate of title."[53] The Ombudsman further ruled:

Considering that prior to the release of titles, [Espenesin] merely rectified what was represented to this office as
error in the preparation of typing or the certificates, hence, it is wrong to subject him to an administrative
sanction. This is bolstered by the fact that, at the time of release (and perhaps even up to the present time), there
was no final determination yet from the land registration court as to who has a better right to the property in
question.[54] (Emphasis supplied).

This statement of the Ombudsman is virtually a declaration of Espenesin's misconduct. It highlights Espenesin's
awareness and knowledge that ASB and MICO are two different and separate entities, albeit having entered into a
joint venture for the building of "The Malayan Tower."

As Registrar of Deeds, Espenesin was duty bound to inquire and ascertain the reason for Serrano's new instruction
on those specific set of CCTs and not just heed Serrano's bidding. He heads the Office of Register of Deeds which is
constituted by law as "a public repository of records of instruments affecting registered or unregistered lands x x x
in the province or city wherein such office is situated." He should not have so easily taken Serrano's word that the
amendment Serrano sought was to correct simple and innocuous error. Espenesin could have then easily asked, as
he is obliged to, for a contract or an authenticated writing to ascertain which units and parking slots were really
allotted for ASB and MICO. His actions would then be based on what is documented and not merely by a lame
claim of bona fides mistake.

Moreover, Espenesin was previously presented a MOA, and consulted this same MOA, in the initial preparation
and issuance of the 38 CCTs in ASB's name. Certainly, a Registrar of Deeds who is required by law to be a member
of the legal profession,[55] possesses common sense and prudence to ask for documents on which to base his
corrections. Reliance on the mere word of even the point person for the transaction, smacks of gross negligence
when all transactions with the Office of the Register of Deeds, involving as it does registration of property, ought
to be properly recorded and documented.

That the Office of the Register of Deeds requires documentation in the registration of property, whether as an
original or a subsequent registration, brooks no argument. Again, and it cannot be overlooked that, Espenesin
initially referred to a MOA albeit Serrano worked on the registration transaction for both ASB and MICO.
Subsequently, Serrano returns, bearing ostensible authority to transact even for ASB, and Espenesin fails to ask for
documentation for the correction Serrano sought to be made, and simply relies on Serrano's word.

We are baffled by the Registrar of Deeds' failure to require documentation which would serve as his basis for the
correction. The amendment sought by Serrano was not a mere clerical change of registered name; it was a
substantial one, changing ownership of 38 units in The Malayan Tower from one entity, ASB, to another, MICO.
Even just at Serrano's initial request for correction of the CCTs, a red flag should have gone up for a Registrar of
Deeds.

Espenesin splits hairs when he claims that it is "in the [R]egistration [B]ook where the prohibition to erase, alter, or
amend, without court order, applies." We disagree with Espenesin. Chapter IV on Certificate of Title of Presidential
Decree No. 1529,[56] specifically Sections 40, 42 and 43 belie the claim of Espenesin:

Section 40. Entry of Original Certificate of Title. Upon receipt by the Register of Deeds of the original and duplicate
copies of the original certificate of title the same shall be entered in his record book and shall be numbered, dated,
signed and sealed by the Register of Deeds with the seal of his office. Said certificate of title shall take effect upon
the date of entry thereof. The Register of Deeds shall forthwith send notice by mail to the registered owner that
his owner's duplicate is ready for delivery to him upon payment of legal fees.

Section 42. Registration Books. The original copy of the original certificate of title shall be filed in the Registry of
Deeds. The same shall be bound in consecutive order together with similar certificates of title and shall constitute
the registration book for titled properties.

Section 43. Transfer Certificate of Title. The subsequent certificate of title that may be issued by the Register of
Deeds pursuant to any voluntary or involuntary instrument relating to the same land shall be in like form, entitled
"Transfer Certificate of Title", and likewise issued in duplicate. The certificate shall show the number of the next
previous certificate covering the same land and also the fact that it was originally registered, giving the record
number, the number of the original certificate of title, and the volume and page of the registration book in which
the latter is found.

Recording or entry of the titles, whether an original or a subsequent transfer certificate of title in the record, is
simultaneous with the signing by the Register of Deeds. The signature on the certificate by the Registrar of Deeds
is accompanied by the dating, numbering and sealing of the certificate. All these are part of a single registration
process. Where there has been a completed entry in the Record Book, as in this case where the Ombudsman
found that "the signature of [Espenesin] is already affixed [on the CCTs], and on its face, it was explicitly declared
that the titles have already been entered in the Registration Book of the Register of Deeds of Pasig City on March
11, 2005 at 11:55 a.m.," the Register of Deeds can no longer tamper with entries, specially the very name of the
titleholder. The law says that the certificate of title shall take effect upon the date of entry thereof.

To further drive home the point, as Registrar of Deeds, Espenesin knew full well that "there [is] no final
determination yet from the land registration court as to who has a better right to the property in question."
Espenesin's attempt to minimize the significance of a Registrar of Deed's signature on a CCT only aggravates the
lack of prudence in his action. The change in the titleholder in the CCTs from ASB to MICO was an official
documentation of a change of ownership. It definitely cannot be characterized as simple error.

Grave misconduct, of which Espenesin has been charged, consists in a public officer's deliberate violation of a rule
of law or standard of behavior. It is regarded as grave when the elements of corruption, clear intent to violate the
law, or flagrant disregard of established rules are present.[57] In particular, corruption as an element of grave
misconduct consists in the official's unlawful and wrongful use of his station or character to procure some benefit
for himself or for another person, contrary to duty and the rights of others. [58]

In sum, the actions of Espenesin clearly demonstrate a disregard of well-known legal rules.[59] The penalty for
Grave Misconduct is dismissal from service with the accessory penalties of forfeiture of retirement benefits,
cancellation of eligibility, and perpetual disqualification from re-employment in the government service, including
government-owned or controlled corporation.[60]

WHEREFORE, the petition in G.R. No. 192685 is PARTIALLY GRANTED. The Resolution of the Ombudsman dated 30
April 2008 in OMB-C-C-07-0444-J is REVERSED and SET ASIDE. The Ombudsman is hereby directed to file the
necessary Information for violation of Sections 3(a) and (e) of Republic Act No. 3019 against public respondent
Policarpio L. Espenesin and private respondent Francis Serrano.

The petition in G.R. No. 199115 is GRANTED. The Decision of the Court of Appeals dated 28 September 2011 in CA-
G.R. SP No. 113171 and the Order dated 13 July 2009 of the Ombudsman in OMB-C-A-07-0474-J
are REVERSED and SET ASIDE. Respondent Policarpio L. Espenesin is GUILTY of Grave Misconduct and we, thus,
impose the penalty of DIMISSAL from service. However, due to his retirement from the service, we order
forfeiture of all his retirement pay and benefits.

SO ORDERED.

SECOND DIVISION

[ G.R. No. 166967, January 28, 2013 ]

EDNA J. JACA, PETITIONER , VS. PEOPLE OF THE PHILIPPINES AND THE SANDIGANBAYAN, RESPONDENTS.

[G.R. NO. 166974]

ALAN C. GAVIOLA, PETITIONER, VS. PEOPLE OF THE PHILIPPINES, RESPONDENT.

[G.R. NO. 167167]

 EUSTAQUIO B. CESA, PETITIONER, VS. PEOPLE OF THE PHILIPPINES, RESPONDENT.

DECISION

BRION, J.:

Before the Court are the petitions for review on certiorari[1] assailing the December 16, 2004 decision[2] and the
February 1, 2005 resolution[3] of the Sandiganbayan in Criminal Case No. 24699, finding Alan C. Gaviola, Edna J.
Jaca, Eustaquio B. Cesa (collectively, petitioners) and Benilda N. Bacasmas guilty of violating Section 3(e) of
Republic Act (RA) No. 3019.[4]

ANTECEDENT FACTS

The petitioners occupied appointive positions in the different divisions of the Cebu City government at the time
material to the controversy: Gaviola was the City Administrator;[5] Cesa was the City Treasurer;[6] Bacasmas was the
Chief Cashier of the Cash Division, which is under the Office of the City Treasurer, and Jaca was the City
Accountant.[7]

The steps followed in the grant of cash advances to a paymaster in the Cebu City government are as follows:

1. Processing of payment:

a. Paymasters request for cash advance and prepare cash advance disbursement vouchers (voucher) to
be submitted to the Chief Cashier, as head of Cash Division;

b. Chief Cashier

1. affixes her initials on Box A of the voucher; and

2. forwards the voucher to the City Treasurer if he sees that the vouchers and its supporting
documents are in order.

c. City Treasurer affixes his signature on box A. Description of Box A is as follows:

3. "BOX A" Certified Expense, cash advances necessary, lawful and incurred under my direct
supervision.

d. The voucher is then forwarded to the City Accountant for processing (recording) and pre-audit
procedure. The City Accountant signs BOX B described as follows:

4. "BOX B" Certified, Adequate available funds/budgetary allotment in the amount of P ,

expenditures properly certified, supported by documents marked (x) per checklist on back
 hereof, account under checklist on back hereof, account codes proper, previous cash advance
liquidated/accounted for.

e. City Accountant prepares and attaches an accountant's advice to the voucher.

f. The voucher and the accountant's advice are returned to Chief Cashier for preparation of check.

g. Chief Cashier prepares the check and initials/countersigns the check

h. City Treasurer signs the check ?

i. The voucher is forwarded to City Administrator for approval on Box C.

5. City Administrator's Internal Control Office (ICO) reviews the supporting documents, and if in
order, will recommend its approval.

6. City Administrator approves BOX C of the voucher and countersigns the check.

j. The voucher, check and the accountant's advice are returned to Cash Division.

k. Paymaster signs the receipt portion of the voucher and the warrant/check register to acknowledge
receipt of the check for encashment later at a bank.

2. Payment

a. The paymaster and the Cash Division prepare a report of disbursement of payrolls paid and supporting
papers and record it in the official cashbook;

b. COA auditors go to Cash Division to examine, check and verify the reports of disbursements, payrolls,
cashbook and other supporting documents;

c. Cashier forwards report and supporting papers to City Accountant for recording and posting.

On March 4, 1998, City Auditor Rodolfo Ariesga created a team of auditors, with the task of conducting a surprise
audit[8] of the cash and other accounts handled by all accountable officers assigned at the Cash Division, Office of
the City Treasurer. Among these disbursing officers was Rosalina G. Badana, who was the paymaster in charge of
paying the salaries of the employees in eight (8) different departments or offices in the Cebu City government.[9]

While Badana reported for work in the early morning of March 5, 1998, she immediately left upon learning of the
planned surprise audit to be conducted that day; she has not reported for work since. [10]

The audit team's cash examination covered the period from September 20, 1995 to March 5, 1998. Cecilia Chan
and Cecilia Tantengco, the audit team leader and assistant team leader, respectively, conducted an examination of
the cash and other accounts in Badana's custody.[11] The audit team reported that Badana incurred a cash shortage
of P18,527,137.19. Based on the procedure in the processing of cash advances, the audit team found out that the
failure of the petitioners to observe the provisions of Presidential Decree (PD) No. 1445,[12]RA No. 7160[13]and the
rules and regulations governing the grant, utilization and liquidation of cash advances under Commission on Audit
(COA) Circular Nos. 90-331, 92-382 and 97-002 "facilitated, promoted, if not encouraged, the commission of
malversation of public funds[.]"[14]

On March 13, 1998, Cebu City Mayor Alvin Garcia filed with the Office of the Ombudsman-Visayas
(Ombudsman)[15] a complaint against Badana for malversation of public funds and for violation of RA Nos. 3019
and 6713.[16] The complaint resulted in administrative and criminal investigations.[17]

On April 3, 1998, the Ombudsman motu proprio required the petitioners and Bacasmas to submit their respective
counter-affidavits and countervailing evidence.[18] On July 1, 1998, the Ombudsman charged the petitioners and
Bacasmas with violation of Section 3(e) of RA No. 3019[19] before the Sandiganbayan under the following
Information:[20]

That on or about the 5th day of March 1998, and for [sometime] prior thereto, at Cebu City, Philippines, and within
the jurisdiction of this Honorable Court, above-named accused, public officers, having been duly appointed to such
public positions above-mentioned, in such capacity and committing the offense in relation to Office, conniving and
confederating together and mutually helping xxx each other, with deliberate intent, with manifest partiality,
evident bad faith and with gross inexcusable negligence, did then and there allow Rosalina G. Badana, Cashier I of
the Cebu City Government to obtain cash advances despite the fact that she has previous unliquidated cash
advances, thus allowing Rosalina G. Badana to accumulate Cash Advances amounting to P18,522,361.96, Philippine
Currency, which remains unliquidated, thus accused in the performance of their official functions, had given
unwarranted benefits to Rosalina G. Badana and themselves, to the damage and prejudice of the government,
particularly the Cebu City Government.

On July 2, 1998, the COA Regional Office No. VII (COA Regional Office) submitted a Narrative Report on the Results
of the Examination of the Cash Accounts (COA Report) of Badana.[21] Pertinent portions of the COA Report read:

"A.1. During the period [between] September 20, 1995 to March 5, 1998, records show that additional cash
advances were granted, even if the previous cash advances were not yet liquidated. For example in the Trust Fund,
a cash advance of Php800,000 was granted on December 8, 1997 even if Ms. Badana has an unliquidated cash
advance balance of Php4,940,065.50 as of November 20, 1997 (Annex 19). The situation was true in granting all
other cash advances from September 20, 1995 to March 5, 1998.

Another example in the General fund, cash advance of Php1,000,000.00 was granted on December 1, 1997 even if
the unliquidated balance of Ms. Badana as of November 28, 1997 was Php8,469,054.19 (Annex 20). The situation is
likewise true in granting all other cash advances during the same period mentioned in the preceding paragraph.
This practice resulted in excessive granting of cash advances which created the opportunity to misappropriate
public funds since idle funds were placed in the hands of the paymasters under their control and custody.

The practice is in violation of Section 89, PD 1445; Section 339, RA 7160 and paragraph 4.1.2 of COA Circular No.
97-002 resulting [in the] accumulation of excess cash in the custody of the accountable officer.

A.2 The following practices also facilitated the incurrence of the shortage:

a. The amount of cash advance for salary payments was not equal to the net amount of the payroll for a pay
period in violation of par. 4.2.1, COA Cir. No. 90-331, Section 48(g), COA Cir. No. 92-382 and par. 4.2.2,
COA Cir. No. 97-002.

All disbursement vouchers covering the cash advances were not supported by payrolls or list of payees to
 determine the amount of the cash advance to be granted in violation of par. 4.2.2, COA Cir. No. 90-331.
Ms. Rosalina G. Badana, who was assigned as paymaster to eight different offices/departments with a
total monthly payroll of P5,747,569.96 (Annex 21) was granted an average monthly cash advance of
P7,600,000.00 (Annex 22) or an excess of P1,900,000.00 monthly. As a result, idle funds were again placed
in the hands and the total control of the Paymaster.

b. The face of the disbursement voucher (sample voucher marked as annex 23) did not indicate the specific
legal purpose for which the cash advance was granted in violation of par. 4.1.5 COA Cir. No. 90-331,
Section 48(e) COA Cir. 92-382 and par. 4.1.7 COA Cir. No. 97-002. It is so because all disbursement
vouchers covering the granting of cash advances to the paymaster did not show the office/department,
the number of payees and the payroll period covered by the cash advance. The city officials signed,
certified and approved these vouchers despite the aforementioned deficiencies. It makes difficult to
identify which liquidating report pertains to what particular cash advance, thus contributing to the
opportunity to misappropriate the funds.

c. The provisions of par. 5.1.1 COA Cir. 90-331 and 97-002 and Section 48.k of COA Cir. No. 92-382 on the
liquidation of cash advances within 5 days after the end of the month pay period was not followed due to
the existing practice/procedure in the granting of cash advances… Likewise, unliquidated cash advance
balance (audited) at the end of December 31, 1997 amounted to P15,553,475.61 consisting of
P11,690,639.44 and P3,862,836.17 for General and Trust Fund respectively, in violation of par. 5.8 COA
Cir. Nos. 90-331 and 97-002 and Section 48 (o) COA Cir. No. 92-382, resulting in the accumulation of
unliquidated cash advances.

In January 1998, the paymaster was granted cash advances before the foregoing unliquidated balance
(audited) was settled. Detail as follows:

Date Check No. Amount of Cash Advance Granted Amount of Cash Returns
1/05/98 852367 P2,000,000.00
1/08/98 25983919 P1,000,000.00
1/09/98 P2,000,000.00
1/09/98 P18,846.00
1/12/98 852430 P1,000,000.00
1/12/98 ____________ P2,000,000.00
Total P4,000,000.00 P4,018,846.00

d.
e. It appears that the new cash advance of Php4,000,000.00 was used to liquidate partially the previous
year's unliquidated balance of P15,553,475.61 in violation of par. 4.1.5 COA Cir. 90-331, Section 48.e of
COA Cir. 92-382 and par. 4.1.7 of COA Cir. 97-002.

f. As discussed in letter "C" above, accounting records show that these cash advances were granted and
taken up in January, 1998 while the cash returns made after granting these cash advances were taken up
in December, 1997. This is contrary to the generally accepted principles of Time period which requires
that accounting should be time bounded[;] meaning cut-off date should be properly and strictly observed.

g. Submission of financial reports and its supporting schedules and vouchers/payrolls by the Accounting
Division was very much delayed (Annex 25) in violation of Section 122, PD 1445 despite of several
communications from the Auditor, latest of [(]which is attached as Annex 26[)] thus verification and
reconciliation on the paymaster's accountability cannot be determined immediately.
 xxxx

C. The following practices led to the concealment of the shortage of P18,527,137.19 from the September 20, 1995
to March 5, 1998:

1. Accounting practices which resulted in inaccurate and misleading information in the financial statements
in violation of Section 111, PD 1445 are enumerated below:

a. Cash returns in January, 1998 were recorded as credits to accountability in December, 1997
amounting to P4,018,846.00 as follows:

xxxx

In effect, the balance of unliquidated cash advances as of December 31, 1997 was understated.

b. Some liquidations/disbursements in January, 1998 were included as credits to accountability in

December, 1997 amounting to P1,974,386,45 Details are as follows:

xxxx

x x x As a result, the unliquidated cash advances as of December 31, 1997 is understated by

P1,974,386.45.

c. Verification of accounting records maintained in the Accounting Division revealed that the index
cards as a control device in the processing of cash advance voucher recorded only cash advances
granted to paymasters (Annex 24). It failed to show the liquidation/disposition of public funds.
Hence, unliquidated balance of cash advances cannot be determined instantly when a cash
advance voucher is being processed by the accounting personnel.

Summarizing par. a and b, the total understatement to Ms. Badana's unliquidated cash advances per
accounting records as of December 31, 1997 amounted to P5,993,232.45 for the General Fund. This
practice is in violation of Section 111 of PD 1445. The financial statements appeared inaccurate and
misleading because of "window dressing."
 2. Presentation of paid payrolls and vouchers already recorded in the cash book/subsidiary ledgers as cash
items thus misleading the auditors into believing them as valid cash items. There is untruthful
presentation of facts constituting deceit or fraud.

The scheme is explained below.

Paid payrolls and vouchers already recorded in the cashbook and in the subsidiary ledgers were presented
as cash items during the count on May 13, 1996, November 27, 1996, June 9, 1997 and November 19,
1997. These cash items were treated as credits to her accountability, thereby reducing her accountability
and consequently concealing her shortage. This scheme was made possible as the paymaster can readily
have access to paid payrolls and vouchers x x x. The following facilitated the use of fraudulent scheme:

1.1 The paid payrolls and vouchers were placed in an unlocked box (carton) under the table of the
bookkeeper.

1.2 The paymaster was allowed to get/retrieve paid payrolls and vouchers from the said box kept by the
bookkeeper.

1.3 Failure of the Disbursing officer to stamp "PAID" all paid payrolls and vouchers. This is a control
measure to avoid re- use or recycling of documents.

The accountable officer resorted to the scheme abovementioned with the intention of claiming double
credit when in truth and in fact, she had been credited already of said transactions: These are the
following:

Date Amount
May 13, 1996 P3,016,239.07
Nov. 27, 1996 P5,983,102.94
June 9, 1997 P7,959,677.07
Nov. 19, 1997 P12,438,954.88

3. In effect, as early as May 13, 1996 and subsequently thereafter, she had already incurred shortages but
was able to conceal them through deceit and fraudulent means as explained above….[22]

The petitioners moved for reinvestigation; the prosecution interposed no objection, provided that the petitioners'
motions would be treated as a motion for reconsideration of the Ombudsman's resolution directing the filing of
information.[23] The prosecution manifested that, upon its recommendation, the Ombudsman resolved to maintain
the information.[24]

On arraignment,[25] the accused pleaded not guilty.[26] During the pre- trial of December 7, 1999, the prosecution
and the petitioners entered into a stipulation of facts:

1. That at all times material to this case, all of the accused are public officials of the City of Cebu.

xxxx
 5. That the cash advance voucher has three boxes: Box A, Box B, and Box C.

6. That Box A is to be signed by the head of the office requesting the cash advance;

7. That Box B is to be signed by the head of the office which would conduct pre-audit of the cash advances;

8. That Box C is to be signed by the person of authority who will finally approve the cash advances. [27]

The prosecution presented Ariesga and Chan as its witnesses. Relying on the audit team's findings, the prosecution
claimed that the shortage was incurred due to the failure of Badana and of the petitioners to comply with the laws,
rules and regulations governing the granting, utilization and liquidation of cash advances. [28] For one, the vouchers
for cash advances lacked an indication of the specific purpose for which an amount was being requested; the office
or department to be paid, the number of payees, and the payroll period to be paid were not specified.[29] For
another, the amounts requested were not equal to the amount of payroll for the pertinent pay period; the
vouchers covering the cash advances for the payment of government employees were not supported by payrolls
for a proper determination of the amount needed for the purpose. Thus, although the monthly payroll of the eight
departments within Badana's responsibility required more than P5 million, the cash advance granted for each
month averaged more than P7 million. Also, the petitioners repeatedly affixed their signatures and allowed the
disbursement of public funds through cash advances, regardless of previous unliquidated cash advances. [30] Cash
advances were not liquidated within the period prescribed by law, enabling the use of subsequent cash advances
to liquidate previous cash advances.

Meanwhile, the Ombudsman rendered a decision[31] in the administrative aspect of the case, finding Jaca and Cesa
guilty of simple neglect of duty and imposed on them the penalty of suspension for six (6) months. The case against
petitioner Gaviola was dismissed for being moot and academic. On Cesa's appeal, the Court of Appeals and,
eventually, this Court sustained the Ombudsman's ruling.

SANDIGANBAYAN'S RULING

On December 16, 2004, the Sandiganbayan promulgated its decision [32] finding the petitioners and Bacasmas guilty
as charged. The Sandiganbayan held the petitioners solidarily liable to the Cebu City government for the amount of
P18,527,137.19.

The Sandiganbayan ruled that all the elements under Section 3(e) of R.A. No. 3019 were established by the
prosecution: first, the petitioners are all public officials; second, the public officials committed the prohibited acts
during the performance of their official duties; third, based on the audit team's examinations, the undue injury
suffered by the government amounted to P18,527,137.19 the amount of Badana's accumulated shortage; fourth,
the petitioners gave unwarranted benefits to Badana, which resulted in undue injury to the government, by
illegally allowing her to obtain cash advances; and fifth, the petitioners acted with gross inexcusable negligence in
the performance of their duties. The Sandiganbayan relied largely on the COA Report to support a finding that the
Cebu City government lost the amount of P18,527,137.19 under the petitioners' collective watch.

The Sandiganbayan explained that while the information charged and recited all the modes of violating Section
3(e) of RA No. 3019, the prosecution is only required to prove any of these modes to warrant conviction. The
Sandiganbayan held:

ACCORDINGLY, accused ALAN C. GAVIOLA, EUSTAQUIO B. CESA, BENILDA N. BACASMAS and EDNA J. JACA are
found guilty beyond reasonable doubt of having violated Sec. 3(e) of RA 3019; and each accused is sentenced to
suffer the indeterminate penalty of twelve (12) years and one day as minimum and fifteen (15) years as maximum,
with the accessory penalty of perpetual disqualification from public office. These Accused are directed to
indemnify jointly and severally the City Government of Cebu the amount of Eighteen Million Five Hundred Twenty-
Seven Thousand One Hundred Thirty-Seven and 19/100 Pesos (Php18,527,137.19).[33]

The petitioners separately moved for reconsideration,[34] but the Sandiganbayan denied their motions on February
1, 2005.[35] Hence, these present petitions.

THE PETITIONERS' ARGUMENTS

Due to the (i) commonality of the factual circumstance that led to the petitioners' prosecution and conviction, as
well as (ii) the different positions occupied by each of the petitioners, various and varied arguments were
submitted. We narrate these arguments based on the positions of each of the petitioners.

a. The hierarchical positions occupied

i. Cesa as City Treasurer

Cesa argues that he simply adhered to the procedure long observed and prevailing at the time of (and even prior
to) his assumption of office as City Treasurer. In the processing of cash advance vouchers coming from the Cash
Division, the division's chief Bacasmas first determines that the voucher and its supporting documents are in order
before Cesa affixes his signature on Box A.

Under RA No. 7160, City Treasurers cease to be an approving authority in the grant of cash advances. It is the City
Accountant who can approve or disapprove cash advances or disbursements. The City Treasurer's previous
function of pre-audit and internal audit functions are now vested with the City Accountant. He claims that he
signed Box A as a requesting party and not as approving authority.

ii. Jaca as City Accountant

Jaca argues that strict compliance with prior and complete liquidation of Badana's previous cash advances is
"impractical and unrealistic."[36] About half of the Cebu City government's employees are weekly-paid and the rest
are paid at the middle and at the end of the month (quincena basis) a practice within the power of the Chief
Executive, not the City Accountant, to determine,[37] and which has long been observed before he became City
Accountant. This set up resulted in a situation where, before she can process the liquidation and posting of a
previous cash advance, another request for a subsequent cash advance already comes in; the request has to be
acted upon if only to avoid delay in the payment of salaries. [38]

While she certified that Badana had liquidated her previous cash advances, she had previously informed Cesa and
the City Auditor (at that time) of the unliquidated cash advances. [39]

iii. Gaviola as City Administrator

Gaviola argues that he affixed his signature on Box C of the vouchers because the City Accountant had earlier
certified that Badana's previous cash advances were liquidated and accounted for. For him, the approval of
vouchers was a ministerial act done not only after the City Accountant had pre-audited the vouchers (by affixing
her signature in Box B), but after the Internal Control Office [40] and a member of his staff, Virginia Peña, had
determined the regularity of the vouchers and their attachments. [41] Gaviola avers that the prosecution failed to
present evidence to show the absence of supporting documents when he affixed his signature on the vouchers. He
adds that his duties do not impose upon him accountability for the funds entrusted to Badana or the City
Treasurer; neither is he tasked with pre-audit activities nor with the record keeping of a paymaster's
accountabilities.
The following are the defenses common to the petitioners:

b. Good faith in affixing their signatures

to the disbursement vouchers

The petitioners invoked good faith in affixing their signatures to the disbursement vouchers. They deny any
knowledge of Badana's shortages until after the surprise audit was conducted on March 5, 1998.

They argue that since the COA did not send them any notice of disallowance of Badana's cash advances,[42] despite
the COA's semestral cash examination, they had the right to presume regularity in Badana's performance of her
job as paymaster.

c. Fatally defective information

The petitioners argue that the information is fatally defective for violating their right to be informed of the nature
and cause of accusation against them. The prosecution could not have validly alleged that the petitioners
committed the offense "with deliberate intent, with manifest partiality, evident bad faith and with gross
inexcusable negligence"[43] since these several modes of committing the crime are inconsistent with each other;
the violation is more so when one considers the prosecution's allegation of conspiracy, which presupposes intent
and the absence of negligence.[44] Because of this serious flaw in the information, the information effectively
charged no offense for which they can be convicted.

Cesa particularly assails the validity of the information because the preliminary investigation which preceded its
filing was allegedly fatally defective. Cesa argued that the Ombudsman cannot motu proprio require him to submit
his counter-affidavit in the preliminary investigation without any prior complaint against him. [45]

d. Evidence

The petitioners argue that the prosecution witnesses were incompetent to testify. On the one hand, Ariesga did
not actually prepare the COA Report, but merely received it from the persons who did the actual audit and
thereafter submitted it to the COA Regional Office. On the other hand, while Chan is the head of the audit team,
she did not actually conduct the cash examination and audit of Badana's accountabilities. In view of the
incompetence of the prosecution witnesses, the Sandiganbayan should not have admitted, much less relied on, the
COA Report as its contents are all hearsay.

e. Proof beyond reasonable doubt and the elements of

Section 3(e) of RA No. 3019 were not established.

Since the petitioners received no prior notice of disallowance from the auditors of the COA at the time material to
the controversy, then the petitioners could not have been charged with knowledge of Badana's previous
unliquidated cash advances. This lack of knowledge negates the element of "giving unwarranted benefits or
causing undue injury."[46]

Particularly, Cesa argues that the existence of unliquidated cash advances was not established because there has
been no complete cash examination, audit and post audit of Badana's accountability, citing Madarang v.
Sandiganbayan.[47] Neither was "undue injury" established since, as previously argued, the COA Report is hearsay.
Also, the fact that no government employee complained of not being paid his salary/receivables only shows that
no party was ever unduly injured.

OSP's COMMENT

The Office of the Special Prosecutor (OSP) prays for the denial of the petitions on the ground that the issues raised
in the petitions are factual in nature and, hence, not covered by Rule 45 of the Rules of Court. The OSP defends the
validity of the information, arguing that there is nothing inconsistent in the allegations because gross inexcusable
negligence also connotes conscious indifference to duty, and not mere inadvertence. While conspiracy
necessitates intent, conspiracy does not negate gross inexcusable negligence, as recognized in Sistoza v.
Desierto.[48]

On the merits, the OSP asserts that no amount of good faith can be appreciated for adhering to a practice if this
practice is illegal. As a certified public accountant and a former state auditor himself, Cesa's familiarity with the
pertinent laws and regulations should have cautioned him against making a certification in Box A.

Delay in the payment of salaries cannot be used as an excuse to violate the law and pertinent COA regulations.
Jaca's repeated certification in Box B of the vouchers despite the lack of liquidation of prior cash advances
establishes her gross inexcusable negligence in the performance of her duties.

Unlike in Sistoza, the vouchers Gaviola signed: (i) were on their face palpably irregular for lack of entries required
by law - i.e., the net amount of payroll to be paid, the intended payees and the period covered by the payroll; and,
(ii) lacked supporting documents. Gaviola failed to substantiate his claim that he signed the vouchers with
supporting documents. None of the documents alleged to have supported the vouchers were presented. In
contrast, Chan's finding and unbiased testimony (that the vouchers were signed without supporting documents)
enjoy the presumption of regularity.

The petitioners' claim of good faith has no basis, considering that the procedure they adopted in approving the
disbursement vouchers was made in violation of existing laws and COA circulars. Also, Ariesga and Chan are
competent to testify on the COA Report as they were part of, and directly participated in, the audit process.

OUR RULING

We deny the petitions.

At the outset, we emphasize that, as a rule, the Court does not review factual questions under Rule 45 of the Rules
of Court. In appeals from the Sandiganbayan, only questions of law and not issues of fact may be raised. Issues
raised before the Court on whether the prosecution's evidence proved the guilt of the accused beyond reasonable
doubt, whether the presumption of innocence was properly accorded the accused, whether there was sufficient
evidence to support a charge of conspiracy, or whether the defense of good faith was correctly appreciated are all,
in varying degrees, questions of fact. As a rule, the factual findings of the Sandiganbayan are conclusive on this
Court, subject to limited exceptions.[49] We find none of these exceptions in the present case.

The information is valid

Pursuant to the constitutional right of the accused to be informed of the nature and cause of the accusation
against him,[50] the Revised Rules of Court[51] require, inter alia, that the information state the designation of the
offense given by the statute and the acts or omissions imputed which constitute the offense
charged.[52] Additionally, it requires that these acts or omissions and their attendant circumstances "be stated in
ordinary and concise language" and "in such form as is sufficient to enable a person of common understanding to
know what offense is intended to be charged and enable the court to pronounce proper judgment."[53] As long as
the crime is described in intelligible terms and with such particularity and reasonable certainty that the accused is
duly informed of the offense charged, then the information is considered sufficient. In particular, whether an
information validly charges an offense depends on whether the material facts alleged in the complaint or
information shall establish the essential elements of the offense charged as defined in the law. The raison d'etre of
the requirement in the Rules is to enable the accused to suitably prepare his defense. [54]

Admittedly, the prosecution could have alleged in the information the mode of committing a violation of Section
3(e) of RA No. 3019 with technical precision by using the disjunctive term "or" instead of the conjunctive term
"and." Nonetheless, in the early case of Gallego, et al. v. Sandiganbayan,[55] the Court already clarified that the
phrases "manifest partiality," "evident bad faith" and "gross inexcusable negligence" are merely descriptive of the
different modes by which the offense penalized in Section 3(e) of RA No. 3019 may be committed, and that the use
of all these phrases in the same information does not mean that the indictment charges three distinct offenses.

Notably, a violation of Section 3(e) of R.A. No. 3019 may be committed either by dolo, as when the accused acted
with evident bad faith or manifest partiality, or by culpa as when the accused committed gross inexcusable
negligence.[56] Unlike in the commission of ordinary felonies however, the law requires that the intent or
negligence, which must attend the commission of the prohibited acts under Section 3(e) of RA No. 3019, should
meet the gravity required by law. Thus, in construing these phrases, the Court observed that bad faith or partiality,
on the one hand, and negligence, on the other hand, per se are not enough for one to be held criminally liable
under the law; that the bad faith or partiality is evident or manifest, or, that the negligent act or omission is
gross and inexcusable must be shown.[57]

Gross inexcusable negligence is negligence characterized by the want of even slight care; acting or omitting to act
in a situation where there is a duty to act, not inadvertently but willfully and intentionally, with a conscious
indifference to consequences in so far as other persons may be affected. It is the omission of that care which even
inattentive and thoughtless men never fail to take on their own property; [58] in cases involving public officials, it
takes place only when breach of duty is flagrant and devious.[59]

Considering the countless scenarios that may fall under the provisions of Section 3 of RA No. 3019, particularly
paragraph e, and the avowed purpose of the law to repress certain acts of public officers constituting graft or
corrupt practices or leading thereto,[60] the law considers the gravity of the bad faith (or partiality) or negligent act
or omission as a mode to commit the violation of Section 3(e) of RA No. 3019. In requiring the negligence to be
both gross and inexcusable, the law demands the neglect or disregard of duty to be willful and intentional in order
for a violation to exist, although it may fall short of the required degree of bad faith, which must be evident, or of
partiality, which must be manifest.

Contrary to the petitioners' claims, gross inexcusable negligence, on one hand, and evident bad faith or manifest
partiality, on the other hand, are not two highly opposite concepts that can result in a fatally defective information
should the terms be conjoined in the information. The fact that the prosecution can properly allege these different
modes alternatively in the information only means that the conviction may lie based simply on the evidence that is
supportive of a particular mode.[61] Significantly, aside from the petitioners' polemics, they have not shown how
their right to be

informed of the nature and cause of accusation against them has actually been violated; in fact, they advanced no
claim that the wordings in the information prevented them from preparing their defense.

We likewise cannot support Cesa's argument challenging the validity of the information for being a product of an
invalid preliminary investigation. Suffice it to state that he had already advanced this argument in opposing the
prosecution's motion for the suspension of the petitioners pendente lite. The Sandiganbayan granted the
prosecution's motion and ordered the preventive suspension of the petitioners who questioned the
Sandiganbayan's action on certiorari.

In a February 28, 2001 Resolution, the Court dismissed the petition for certiorari for the petitioners' failure to
establish grave abuse of discretion on the part of the Sandiganbayan. Effectively, therefore, the Court passed upon
and upheld the validity of the proceedings that led to the filing of the information below. [62] Under the doctrine of
the law of the case, our earlier ruling continues to be the rule governing the same proceeding where the
petitioners have been accused before and convicted by the Sandiganbayan.[63]

COA Report is not hearsay evidence

Basic under the rules of evidence is that a witness can only testify on facts within his or her personal
knowledge.[64] This personal knowledge is a substantive prerequisite in accepting testimonial evidence establishing
the truth of a disputed fact.[65] Corollarily, a document offered as proof of its contents has to be authenticated in
the manner provided in the rules, that is, by the person with personal knowledge of the facts stated in the
document.[66]

The petitioners dispute the competence of both Ariesga and Chan to testify on the contents of the COA Report:
allegedly, they are not the ones who conducted the actual audit of Badana's accountabilities. While this claim may
be asserted against Ariesga,[67] the same conclusion does not hold true with respect to Chan and her testimony. In
fact, Chan (together with Tantengco) was specifically assigned to audit the cash and accounts of Badana. On cross-
examination, Chan testified:

Q: Were you actually the one who conducted the cash examination?
I assisted Mrs. Cecilia Tantengco in the cash counts and in the gathering of the documents and also in
A:
the preparation of the report.
Q: You assisted Mrs. Tantengco?
A: Yes sir.
Q: You did not assist any City Auditors office of Cebu City?
A: Being a team leader, I assisted members of the team.
xxxx
AJ Nario: What kind of assistance have you made?
During the cash examination I reviewed the working papers of the team who conducted the periodic
A:
cash examination, review, your Honor.
Q: What else?
I was shown some of the documents wherein I discovered that the disbursement voucher do not
A: indicate the information… that is required under the law, rules and regulations in granting cash
advances your Honor.
xxxx
Atty. So you did not actually conduct a cash examination but you only review the alleged result of the cash
Espina: examination conducted by the members of the team?
AS I have said earlier, I performed the cash count. I assisted Mrs. Tantingco in doing the cash count. We
A: also have like certification of this (sic) documents and reconciliation in coming up with the result of
shortage of 18 million.
xxxx
AJ Nario: How many members were there?
… there are ten of us I am the team leader so with that particular accountable officers Mrs. Badana
A:
there is only one to audit the cash examination, Mrs. Cecilia Tantingco, your Honor. [68]

Given Chan's participation in the preparation of the COA Report, the non-presentation of the other members of
the audit team does not diminish the character of Chan's personal knowledge of the contents of the COA Report. If
at all, the case for the prosecution may rise or fall based on the credibility of her testimony in establishing the
petitioners' acts or omissions amounting to a violation of RA No. 3019. The Sandiganbayan found her testimony
credible and we find no reason to disagree with its finding.

Most importantly, the COA's findings are accorded great weight and respect, unless they are clearly shown to be
tainted with grave abuse of discretion; the COA is the agency specifically given the power, authority and duty to
examine, audit and settle all accounts pertaining to the revenue and receipts of, and expenditures or uses of fund
and property owned by or pertaining to, the government. It has the exclusive authority to define the scope of its
audit and examination, and to establish the required techniques and methods. An audit is conducted to determine
whether the amounts allotted for certain expenditures were spent wisely, in keeping with official guidelines and
regulations.[68] Under the Rules on Evidence and considering the COA's expertise on the matter, the presumption is
that official duty has been regularly performed unless there is evidence to the contrary. The petitioners failed in
this regard.

Elements of RA No. 3019 and the

prosecution's evidence

Section 3(e) of R.A. No. 3019 has "three elements: (1) the accused is a public officer discharging administrative,
judicial, or official functions; (2) [he or she] must have acted with manifest partiality, evident bad faith, or [gross
and] inexcusable negligence; and (3) [his or her] action caused any undue injury to any party, including the
government, or [gave] any private party unwarranted benefits, advantage, or preference in the discharge of his or
her functions."[69]

The first element is not disputed. We shall first determine the existence of the third element since the
prosecution's theory depends on the existence of a shortage upon audit of the Cebu City government's funds. We
see no point in discussing the second element if the third element does not exist.

Causing undue injury or giving

unwarranted benefit

Citing Madarang v. Sandiganbayan,[70] Cesa argues that the prosecution has not established the fact of Badana's
unliquidated cash advances because Ariesga himself testified that the cash examination and audit of Badana's
accountability has not been completed even at the time of the prosecution of the case in the Sandiganbayan.
Similarly, Gaviola adds that no government employee has in fact complained of not being paid his or her salary. In
effect, the petitioners argue that the third element of violation of Section 3(e) of RA No. 3019 is wanting.

The petitioners cannot rely on Madarang, which merely cited the case of Dumagat v. Sandiganbayan,[71] to escape
liability. Dumagat is a case for malversation of funds where the evidence of shortage, appropriation, conversion or
loss of public funds was necessary, among other elements, for conviction. In acquitting the accused, the Court
pointed out that "the audit examination left much to be desired in terms of thoroughness and completeness as
there were accounts which were not considered."[72] The audit examination was done not in the official station of
the accused. The accused's other vaults that were located in other places and the "records, receipts, and cash
contained therein were not made part of the audit report."[73] Lastly, the prosecution itself admitted where the
accused deposited her collections from particular areas.

In Tinga v. People,[74] again a case involving malversation of public funds, the Court ruled that the prosecution
failed to establish beyond reasonable doubt that there were actually missing funds chargeable to the accused .
The Sandiganbayan itself found the many errors committed by the COA in its audit, by including sums which were
supposed to be excluded. The Court expressly observed the "incomplete and haphazard" manner by which the
audit was conducted.

Unlike Dumagat and Tinga, however, the various irregularities found by the COA itself, and affirmed by the
Sandiganbayan, were the very ones which actually contributed to the audit team's difficulty in completing the
audit. Significantly, nowhere does it appear that the incompleteness of the audit pertains to its scope or that the
audit team conducted the audit in a haphazard manner. The fact that the person (Badana), who could actually
shed light on the shortage the COA found, is nowhere to be found cannot be taken against the prosecution. The
undisputed accumulation of funds in Badana's hands, considering the amount given; the fact that the
disbursement vouchers do not exactly represent the amount of payroll to be paid; and the COA's findings that
there was a shortage merely reflect theconsequences of the petitioners' acts or omissions and facilitated the
commission of possible malversation by Badana. Thus, undue injury was sufficiently established.

Gross inexcusable negligence and the

petitioners' defense of good faith

a1. Cesa's defense of good faith

Under Section 470 of RA No. 7160, the City Treasurer is tasked with, inter alia, the following duties: (1) to take
custody of and exercise proper management of the funds of the local government unit concerned; and (2) to take
charge of the disbursement of all local government funds and such other funds the custody of which may be
entrusted to him by law or other competent authority. It is from the viewpoint of Cesa's duties as a City Treasurer
that Cesa's good faith should be measured, not simply from the fact that he acted because a subordinate from his
office is the one asking for a cash advance. By certifying that the cash advances were "necessary and lawful and
incurred under his direct supervision,"[75] Cesa cannot escape the obligation to determine whether Badana
complied with Section 89 of PD No. 1445, although the same requirement would have to be ultimately determined
by the City Accountant.[76] Section 89 of PD No. 1445 reads:

Sec. 89. Limitations on cash advance. No cash advance shall be given unless for a legally authorized specific
purpose. A cash advance shall be reported on and liquidated as soon as the purpose for which it was given has
been served. No additional cash advance shall be allowed to any official or employee unless the previous cash
advance given to him is settled or a proper accounting thereof is made.

The same requirement is reiterated in RA No. 7160:

Section 339. Cash Advances. - No cash advance shall be granted to any local official or employee, elective or
appointive, unless made in accordance with the rules and regulations as the Commission on Audit may prescribe.
[italics supplied]

Cesa's claim that he precisely required Bacasmas to affix her initials first on Box A before he actually signed it
cannot exonerate him because Bacasmas herself admitted that the "practice" then was simply to approve the
written request of the paymaster without requiring the presentation of the supporting documents from the
requesting paymaster. Accused Bacasmas herself testified:

Madam Witness, after preparing all these cash advances, disbursement voucher and forwarded to the
Q: Office of the City Accountant, what are those attachments your office prepared prior to the receiving of
these cash vouchers to the accountant.
A: What do you mean?
Q: What are those supporting documents?
A: Of the disbursement vouchers?
Q: Yes.
It is the written request of the paymaster concerned, sir. We practice that so long ago, sir. It is only the
A:
written request of the paymaster, no other requirements was required by us.
Q: How about those payrolls, are these payrolls attached to that voucher?
xxxx
The question is very simple, the voucher is prepared in your office and then it is sent to the
AJ Ferrer: accountant. Now, the question is, when you sent the vouchers to the accountant, is it accompanied by
the payrolls, yes or no?
Witness: No your Honor.
Atty.
Only the vouchers were transmitted to the accountant for approval, without any attachment?
Abrenica:
A: That is prepared by the paymaster.
Q: What was the basis of transmitting request as attached by you in the vouchers?
xxxx
Pros.
There is no showing that she was the one who attached the disbursement vouchers.
Somido:
AJ Ferrer: That is what she said that she attaches that to the disbursement and sent to the accountant.
Q: What is the basis of your attaching the request to the voucher when you sent it to the accountant?
The approved payrolls are there already in the paymaster, so, they will sum up the payroll and then
A:
that is the amount they will cash advance.[77]

As the immediate superior of Badana and who affixes her initials before accused Cesa signs Box A, Bacasmas'
testimony clearly establishes a "practice" in the Office of the Cash Division of simply relying on the request of the
paymaster without actually requiring the submission of the necessary documents in support of the request.
Contrary to Cesa's claims, he was not trivially signing Box A of the disbursement voucher as a mere requesting
party; he has performed a vital role in its processing and the consequent disbursement of public funds. [78]The
instruction at the back of the voucher itself states that:

1. x x x

6. Box A shall be signed by the responsible officer having direct supervision and knowledge of the facts of the
transaction.[79]

In view of the clear duty of the City Treasurer to exercise proper management of the funds of the local
government, Cesa's insistence that he merely followed the established "procedures and systems" - which can only
refer to the "practice" observed in the Office of the Cash Division all the more negated his defense of good faith.
He cannot rely on good faith based on the act of a subordinate where the documents that would support the
subordinate's action (Bacasmas countersignature) were not even in his (Cesa's) possession for examination.

Similarly, even ordinary diligence in the performance of his duties as City Treasurer should have prompted Cesa to
determine if the cash advance requested is "necessary" not only as to its purpose but also as to its amount to
ensure that local funds are properly spent up to the last centavo.

a2. The decision in the administrative case against

Cesa is not controlling in the criminal case

Cesa argues that since the Ombudsman found him administratively liable for simple neglect of duty only, then the
Sandiganbayan gravely erred in convicting him under Section 3(e) of RA No. 3019 for gross inexcusable negligence.

We disagree with this argument.

That an administrative case is independent from the criminal action, although both arose from the same act or
omission, is elementary. Given the differences in the quantum of evidence required, the procedure observed, the
sanctions imposed, as well as in the objective of the two proceedings, the findings and conclusions in one should
not necessarily be binding on the other. Thus, as a rule, exoneration in the administrative case is not a bar to a
criminal prosecution for the same or similar acts which were the subject of the administrative complaint or vice
versa.[80]

In the present case, we stress that the Ombudsman made an express finding that Cesa failed to exercise the
diligence of a good father of a family in safeguarding the funds of the city government. Thus, Cesa (together with
Bacasmas and Jaca) was found administratively liable by the Ombudsman for neglect of duty. If the exoneration
from an administrative charge does not in itself bar criminal prosecution, then with more reason should the
principle apply where the respondent was found to have committed an administrative infraction.

The Court is not unaware of the rule that if there was a categorical finding in the administrative case that expressly
rules out one (or more) of the essential elements of the crime for which the respondent is likewise sought to be
held liable, then his exoneration in the administrative case can be pleaded for his acquittal in the criminal
case.[81] This rule, however, obviously finds no application in the present case. The CA and, subsequently, this Court
merely affirmed the administrative finding of the Ombudsman that Cesa and his co-petitioners are guilty of neglect
of duty. Nowhere did the uniform rulings in the administrative case even hint that the administrative finding bars
or forecloses a further determination of the gravity of the petitioners' negligence as was the prosecution's theory
for purposes of criminal prosecution.

b1. Jaca's defense of good faith

According to Jaca, he affixed his signature on Box B of the disbursement vouchers, as a ministerial duty, in order to
avoid delay in the payment of the Cebu City government employees' salaries. Jaca practically admitted having
done so even if she knew that Badana's previous cash advances had not yet been liquidated, and, that she did not
bother to inform the COA that the accounting tools (index card and subsidiary ledger) did not accurately monitor
cash advances.[82] The Sandiganbayan tried to elicit a plausible form of the defense of good faith from Jaca but her
answer could not be more categorical.

CHAIRMAN

No, no. The witness may answer. It's very clear. Let me rephrase your question and correct the Court if it is stated
in a wrong manner. The question of the prosecutor is something like this. Whenever this (sic) is a document
presented to you which covers the salaries of other employees despite the fact that you are aware that it also
contains cash advances being requested by Rosalina Badana, you have to sign it notwithstanding the fact that you
know, you are aware that the previous one were still unliquidated? You have to sign it?

E. JACA

Yes, your honor. CHAIRMAN

Will you please tell us why you have to do that? Could you not make any qualification? Can you not say that I am
signing the box just for the release of the salaries of the employees but with respect to Rosalina Badana, you are
objecting to the additional cash advances being requested? Can you not say that?

E. JACA

Precisely, it is because, your Honor, our records which COA insisted should be effective tool for monitoring. It is
simply not effective, the index cards and subsidiary ledgers.

CHAIRMAN

Can you not execute additional documents to that effect saying that I have to sign it because I have to do it. If not,
it will affect the salaries of other employees but, with respect to Rosalina Badana, we are entering our objection. I
cannot sign it because there were amounts which were given and remain unliquidated. Can you not do that, just to
save your neck?

E. JACA

There is a pro-forma voucher, your Honor, and we find it did not occur to us at that time that we may… we will add
anything in that box.

CHAIRMAN

So, in other words, you agree to the question of the prosecutor that you have no choice even though you are
aware that what you are doing is wrong, you have to blindly sign the box provided for in that document?

E. JACA
That's it, your Honor.

xxxx

[PROSECUTOR MONTEROSO]

Q: Now, you said earlier that the internal control of the [COA] x x x You said that these were not actually effective,
am I correct, ma'am? I am referring to the index cards and other forms that are supposed to be used in the control
system of the audit. You said these are not effective?

xxxx

[A:] Yes, your Honor. CHAIRMAN:

Why did you say that?

E. JACA

Because of the criteria of the [COA] for the tool to be effective, it should be accurate and up-to-date. Our index
cards and our subsidiary ledgers do not qualify that, your Honor.

CHAIRMAN:

Are you not in a position to tell those audit people in the COA, that what you are doing is not correct and not
accurate? x x x

E. JACA

It was only at that time that these were brought out and the COA mentioned that these devices are supposed to
be our controls. CHAIRMAN

Don't you feel that the amount of P18M is already substantial enough for you to blow the whistle?

E JACA

That P18M, sir, came out after the cash examination of Badana. During those years, during the months preceding
that, we did not know. There was no way of knowing at our end how much has Badana incurred.[83]

RA No. 7160 charges the city accountant with both the accounting and internal audit services of the local
government unit and, among others, to (1) install and maintain an internal audit system in the local government
unit; (2) review supporting documents before the preparation of vouchers to determine the completeness of the
requirements; (3) prepare statements of cash advances, liquidation, salaries, allowances, reimbursements and
remittances pertaining to the local government unit; (4) prepare statements of journal vouchers and liquidation of
the same and other adjustments related thereto; (5) post individual disbursements to the subsidiary ledger and
index cards; and (6) maintain individual ledgers for officials and employees of the local government unit pertaining
to payrolls and deductions.[84] As the City Accountant, Jaca is presumed conversant with the pertinent COA rules
and regulations in granting cash advances, i.e., COA Circular No. 90-331, COA Circular No. 92-382 and COA Circular
No. 97-002, but which were consistently not observed by the petitioners.
 1. No additional cash advance shall be allowed to any official or employee unless the previous cash advance
given him is first settled or a proper accounting thereof is made.

2. The cash advance shall be equal to the net amount of the payroll for a pay period.

3. The cash advance shall be supported by the following documents:

- Payroll or list of payees with their net payments

4. The accountable officer shall liquidate his cash advance as follows: salaries, wages, etc. within five days
after each 15 day/end of the month pay period.

The Court is not persuaded by Jaca's argument that she was merely avoiding any delay in the payment of salaries
of local government employees when she consequently failed to observe the COA rules on the period of
liquidation of cash advances. The Sandiganbayan correctly observed that as the City Accountant, foremost of her
duties is to ensure that the local funds out of which the salaries of local government employees would be paid are
properly accounted for.[85] As Cesa implicitly argued, the creation of the Office of the City Accountant [86] serves an
important function of pre-audit in the chain of processing cash advances of individual paymasters.

A pre-audit is an examination of financial transactions before their consumption or payment; a pre-audit seeks to
determine, among others, that the claim is duly supported by authentic underlying pieces of evidence. [87] If the
setup then prevailing in the Cebu City government directly conflicts with the COA regulations, Jaca should have, at
the very least, informed the City Mayor of the risk in the process of disbursement of local funds or at least she
should have set up an internal audit system - as was her duty to check against possible malversation of funds by
the paymaster.

That no one claimed that his/her salaries has not been paid is beside the point. In the present case, aside from
Jaca's admission that she knowingly affixed her signature in Box B of the disbursement voucher contrary to what it
certifies, i.e., all previous cash advances had been liquidated and accounted for, the amount requested was
consistently way above the total amount covered by the supporting payrolls, thereby allowing Badana to have
accumulated excess funds in her hands.

c1. Gaviola's defense of good faith

In his defense, Gaviola invokes our ruling in Arias v. Sandiganbayan[88] and argues that he signed Box C of the
disbursement vouchers (i) only after his co-accused had previously affixed their signatures and (ii) only if they were
complete with supporting documents.

Section 305. Fundamental Principles. - The financial affairs, transactions, and operations of local government units
shall be governed by the following fundamental principles:

xxxx

(l) Fiscal responsibility shall be shared by all those exercising authority over the financial affairs, transactions, and
operations of the local government units[.]

c1.1 The Arias ruling and subsequent cases

In the seminal case of Arias v. Sandiganbayan[89] involving the prosecution and conviction of a public official for
violation of RA No. 3019, the Court ruled:

We would be setting a bad precedent if a head of office plagued by all too common problems - dishonest or
negligent subordinates, overwork, multiple assignments or positions, or plain incompetence - is suddenly swept
into a conspiracy conviction simply because he did not personally examine every single detail, painstakingly trace
every step from inception, and investigate the motives of every person involved in a transaction before affixing his
signature as the final approving authority.

xxxx

We can, in retrospect, argue that Arias should have probed records, inspected documents, received procedures,
and questioned persons. It is doubtful if any auditor for a fairly sized office could personally do all these things in
all vouchers presented for his signature. The Court would be asking for the impossible. All heads of offices have to
rely to a reasonable extent on their subordinates and on the good faith of those who prepare bids, purchase
supplies, or enter into negotiations. xxx There has to be some added reason why he should examine each
voucher in such detail. Any executive head of even small government agencies or commissions can attest to the
volume of papers that must be signed. There are hundreds of documents, letters, memoranda, vouchers, and
supporting papers that routinely pass through his hands. The number in bigger offices or departments is even
more appalling.

There should be other grounds than the mere signature or approval appearing on a voucher to sustain a
conspiracy charge and conviction.[90] (italics supplied; emphases ours)

The Court has since applied the Arias ruling to determine not only criminal,[91] civil[92] and administrative[93] liability,
but even the existence of probable cause to file an information [94] in the context of an allegation of conspiracy.

In Siztoza v. Desierto, involving the Ombudsman's determination of probable cause for violation of RA No. 3019,
the Court expounded on the reach of Arias, thus:

The fact that [Sistoza] had knowledge of the status of [the contractor] as being only the second lowest bidder does
not ipso factocharacterize [his] act of reliance as recklessly imprudent xxx. Albeit misplaced, reliance in good faith
by a head of office on a subordinate upon whom the primary responsibility rests negates an imputation of
conspiracy by gross inexcusable negligence to commit graft and corruption. As things stand, [Sistoza] is presumed
to have acted honestly and sincerely when he depended upon responsible assurances that everything was
aboveboard since it is not always the case that second best bidders in terms of price are automatically disqualified
from the award considering that the PBAC reserves the authority to select the best bid not only in terms of the
price offered but other factors as well. x x x

Verily, even if petitioner erred in his assessment of the extrinsic and intrinsic validity of the documents
presented to him for endorsement, his act is all the same imbued with good faith because the otherwise faulty
reliance upon his subordinates, who were primarily in charge of the task, falls within parameters of tolerable
judgment and permissible margins of error. Stated differently, granting that there were flaws in the bidding
procedures, x x x there was no cause for [Sistoza] to x x x investigate further since neither the defects in the
process nor the unfairness or injustice in the actions of his subalterns are definite, certain, patent and
palpable from a perusal of the supporting documents.[95] (emphases ours)

In Leycano, Jr. v. Commission on Audit,[96] the Court clarified that for one to successfully invoke Arias, the public
official must then be acting in his capacity as head of office.[97] In Cruz v. Sandiganbayan,[98] where the Court
sustained the petitioner's conviction for violation of Section 3(e) of RA No. 3019, it observed that the fact that "the
checks issued as payment for construction materials purchased by the municipality were not made payable to the
supplier x x x but to petitioner himself even as the disbursement vouchers attached thereto were in the name of
[the supplier]" constitute an "added reason" for the petitioner to further examine the documents. [99]

c2.2 The Arias ruling and the present case

The Arias ruling squarely applies where, in the performance of his official duties, the head of an office is being held
to answer for his act of relying on the acts of his subordinate. In its Memorandum, [100] the prosecution submitted
that the petitioners were the heads of the three "independent" offices at the time material to the controversy, i.e.,
the Office of the City Treasurer, the Office of the City Accountant and the Office of the City Administrator. On this
point alone, Gaviola's reliance on Arias already stands on shaky grounds.

However, the Court observes that the key functions of the City Administrator do not relate either to the
management of or accounting of funds of the local government or to internal audit. His concern is the overall
administration and management of the affairs of the local government as a whole. Given the prior certifications of
the two other offices; the internal check employed by Gaviola before affixing his signature; and the intervening
process before the voucher actually reaches the City Administrator, the Court cannot consider the deficiency in the
"particulars of payment" alone to charge Gaviola with knowledge that something was amiss and that his failure to
do so would amount to gross and inexcusable negligence. Unlike the signatures on the disbursement vouchers of
the City Treasurer and of the City Accountant, the City Administrator signs Box C ultimately as an "approving
officer" without any direct involvement in the management and audit of local government funds before and after
the disbursement. It would seem, therefore, that Gaviola's own reliance on the signatures of the heads of the two
other offices is not entirely misplaced.

The signatures of the other petitioners, however, are only part of the picture. Gaviola's reliance on these alone
does not establish good faith if the bare signatures on the voucher and the written request from the paymaster are
all that he has with him when he affixed his signature on Box C.[101] Amidst conflicting assertions, the
Sandiganbayan gave credence to the prosecution's evidence that the disbursement vouchers did not have the
required supporting documents when Gaviola affixed his signature. While the vouchers themselves indicate that it
had gone through the Internal Control Office, allegedly for a determination of the completeness of the supporting
documents before Peña finally turned it over to Gaviola, the Sandiganbayan gave emphasis on Gaviola's failure to
present evidence that he indeed requested the submission of the supposed attachments from the COA and put a
premium on Chan's testimony.

We find no reason to reverse the Sandiganbayan. Additionally, we observe that while payment of salaries of
employees of the Cebu City government is either on a quincena or weekly basis, still there are only two payrolls
prepared, corresponding to the first and second halves of the month. The payroll for the first quincena is prepared
on the first week of the month, in time for the weekly-paid employees to receive their first week salary. For
purpose of payment for the next pay periods - the payment of the 2nd week salary and the 1st quincena - the
payroll (together with its supporting documents) stays with the paymaster/disbursing officer. [102] This arrangement
only means that if Badana would make a cash advance for the 1st week or 3rd week, the disbursement vouchers
could not actually be supported by complete documents since the same stay with the paymaster herself.

As described by the prosecution, the offices involved in the processing of cash advances are technically
independent of each other; one office does not form part of, or is strictly under, another. Thus, each has
independent functions to perform to ensure that the funds of the local government are disbursed properly and are
well accounted for. While the Court views Gaviola's failure to inquire further before affixing his signature despite
the absence of the "particulars of payment" in the disbursement vouchers as negligence on his part, [103] to
additionally affix his signature despite the lack of supporting documents only shows a gross and inexcusable
disregard of the consequences of his act as approving authority. If Gaviola bothered to glance at the supporting
documents, he could have signaled to his co-accused that their acts or omissions opened an opportunity for
Badana to commit malversation that would result in a loss to the local government's coffers.

Conspiracy and conviction

In Sistoza, the Court already intimated on the possibility of committing a violation of Section 3(e) of RA No. 3019
through gross and inexcusable negligence, and of incurring collective criminal responsibility through a conspiracy.

x x x As we have consistently held, evidence of guilt must be premised upon a more knowing, personal and
deliberate participation of each individual who is charged with others as part of a conspiracy.

Furthermore, even if the conspiracy were one of silence and inaction arising from gross inexcusable negligence, it
is nonetheless essential to prove that the breach of duty borders on malice and is characterized by flagrant,
palpable and willful indifference to consequences insofar as other persons may be affected. [104]

As earlier discussed, considering that the gravity of negligence required by law for a violation of Section 3(e) of RA
No. 3019 to exist falls short of the degree of bad faith or partiality to violate the same provision, a conspiracy of
silence and inaction arising from gross inexcusable negligence would almost always be inferred only from the
surrounding circumstances and the parties' acts or omissions that, taken together, indicate a common
understanding and concurrence of sentiments respecting the commission of the offense. [105] The duties and
responsibilities that the occupancy of a public office carry and the degree of relationship of interdependence of the
different offices involved here determine the existence of conspiracy where gross inexcusable negligence was the
mode or commission of the offense.

For emphasis, the petitioners are all heads or their respective offices that perform interdependent functions in the
processing of cash advances. The petitioners' attitude of buck-passing in the face of the irregularities in the
voucher (and the absence of supporting documents), as established by the prosecution, and their indifference to
their individual and collective duties to ensure that laws and regulations are observed in the disbursement of the
funds of the local government of Cebu can only lead to a finding of conspiracy of silence and inaction,
contemplated in Sistoza. The Sandiganbayan correctly observed that

Finally, it bears stressing that the separate acts or omissions of all the accused in the present case contributed in
the end result of defrauding the government. Without anyone of these acts or omissions, the end result would not
have been achieved. Suffice it to say that since each of the accused contributed to attain the end goal, it can be
concluded that their acts, taken collectively, satisfactorily prove the existence of conspiracy among them.[106]

WHERFFORE, premises considered, we hereby DENY the petitions for lack of merit and thereby AFFIRM the
decision dated December 16, 2004 and the resolution dated February 1, 2005 of the Sandiganbayan in Criminal
Case No. 24099.

SO ORDERED.

EN BANC

[ G.R. No. 94955, August 18, 1993 ]

JUAN CORONADO, PETITIONER, VS. THE SANDIGANBAYAN AND THE PEOPLE OF THE PHILIPPINES, RESPONDENTS.

DECISION

VITUG, J.:
The Sandiganbayan convicted the petitioner, Juan Coronado, for violation of Section 3(f) of Republic Act No. 3019,
otherwise known as the Anti-Graft and Corrupt Practices Act, from which decision[1] this petition for review
on certiorari was filed.

Herein petitioner, then a newly hired Process Server in the Office of the Clerk of Court of the Regional Trial Court
("RTC") of Antipolo, Rizal, was charged, along with Cesar Villamor and Oscar Caing, in an Information, dated 26
November 1985, and docketed as Criminal Case No. 11035 (p. 7, Rollo). The arraignment was postponed for
several times because of a pending reinvestigation then being conducted by the Tanodbayan. After the
reinvestigation, an "Omnibus Motion to Admit Amended Information and To Dismiss the case Against Accused
Cesar Villamor and Oscar Caing", dated 09 February 1987, was filed by the Tanodbayan (Ibid.).

On 23 September 1987, the respondent court granted the omnibus motion above-referred to and thereby
admitted the Amended Information against the petitioner, thus-

"That during the period from August 31, 1984 to February 21, 1985 in the Municipality of Antipolo, Province of
Rizal, Philippines, and within the jurisdiction of this Honorable Court, accused JUAN CORONADO, JR., a public
officer being the Process Server of all the Regional Trial Court of Antipolo, Rizal, did then and there wilfully and
unlawfully neglect and refuse to serve within reasonable time, a copy of the Order dated July 11, 1984, issued by
Executive Judge Antonio V. Benedicto in Civil Case No. 290-A entitled "Pinagkamaligan Indo-Agro-Development
Corporation, et al. v. Mariano Lim, et al.," denying plaintiffs' Motion for Reconsideration of the Order of January
23, 1984 dismissing their complaint for Cancellation of Title, upon plaintiffs' counsel, Atty. Patrocinio Palanog,
without sufficient justification, despite due demand and request made by defendant Mariano Lim, the copy of said
Order of July 11, 1984 being served on plaintiffs' counsel only on February 22, 1985, for the purpose of giving
undue advantage in favor of the plaintiffs and discrimination against defendants in said case by delaying the
finality of the order of dismissal and allowing the plaintiffs to prolong their stay on the land in litigation.

CONTRARY TO LAW." (p. 8, rollo)

Paraphrasing the Sandiganbayan, the chronological recitation of events, based in part on the stipulation of facts
and the rest on the evidence adduced during the trial, may be stated, as follows:

First - The Regional Trial Court of Rizal (Br. 71) issued an Order, dated 11 July 1984, denying plaintiffs' motion for
reconsideration of the order of 23 January 1984, that dismissed the complaint in Civil Case No. 290-A, entitled
"Pinagkamaligan Indo-Agro-Development Corporation, et al. v. Mariano Lim et al.";

Second - On 31 August 1984, the complaining witness Mariano Lim, one of the defendants in the above civil case,
learned of the rendition of the Order and the fact that it had not yet then been served upon the plaintiffs. Lim felt
"agitated about the loss of eleven days before the decision's period of finality had commenced to run," and he,
therefore, made representations with the Executive Judge, the Hon. Antonio Benedicto, to have the Order served
on Atty. Patrocinio Palanog, the counsel for the plaintiffs;

Third - The accused, a process server, was directed to effect the service. His first attempt was unsuccessful because
he could not locate the address of Atty. Palanog. The accused again tried on 02 September 1984, and although this
time he found the address, Atty. Palanog and his entire family had apparently gone out for the weekend. The
accused found only a woman, not a member of the family of Atty. Palanog, who had only been asked to watch
over the house. Accused Coronado did not thus leave the Order;

Fourth - On 22 February 1985, Lim went back to the courthouse where he was informed that the case had
meanwhile been sent to the archives together with 29 other cases (Exhibit "E") (Ibid.).

Fifth - On 25 February 1985, Lim returned to the courthouse and, examining the records, he observed additional
unnumbered pages that include, among other things, a) a return, dated 4 September 1984 (Exhibit "F"), signed by
accused Coronado stating that plaintiff's counsel, Atty. Palanog, could not be contacted; b) an entry at the foot of
the Order of 11 July 1984 (Exhibit "A-2") to the effect that Atty. Palanog had received the Order on 25 February
1985; and (c) a return, dated 25 February 1985 (Exhibit "B") that the Order had indeed been served on plaintiffs
(pp. 35-36, Rollo).

On the basis of the foregoing, particularly the 5-month delay in the service of the court order, the Sandiganbayan
convicted herein petitioner of having violated Section 3(f) of Republic Act No. 3019 and imposed upon him the
indeterminate penalty of imprisonment for six (6) years and one (1) month to nine (9) years and one (1) day.

Hence, this petition.

The pivotal issue in this case is whether or not the failure of the petitioner to successfully serve the 11 July 1984
Order, given the above settings, warrants his conviction under Section 3(f) of the Anti-Graft and Corrupt Practices
Act.

The pertinent provision of the law (Republic Act No. 3019) alleged to have been violated provides:

Section 3. Corrupt Practices of Public Officers: The following shall constitute corrupt practices of any public officer
and are hereby declared unlawful:

xxx xxx xxx

(f) Neglecting or refusing, after due demand or without sufficient justification, to act within a reasonable time on
any matter pending before him for the purpose of obtaining, directly or indirectly from any person interested in
the matter some pecuniary or material benefit or advantage in favor of or discriminating against another
interested party.

Admittedly, the elements of the offense are that:

a) The offender is a public officer;

b) The said officer has neglected or has refused to act without sufficient justification after due demand or request
has been made on him;

c) Reasonable time has elapsed from such demand or request without the public officer having acted on the
matter pending before him; and

d) Such failure to so act is "for the purpose of obtaining, directly or indirectly, from any person interested in the
matter some pecuniary or material benefit or advantage in favor of an interested party, or discriminating against
another.

The attendance of the first three elements in this case can hardly be disputed. The controversy, however, lies on
the fourth element.

We agree with the Sandiganbayan that, indeed, there was failure on the part of the petitioner, a public officer, to
observe due diligence in his assigned task; let us call it one of neglect, a broad term which is defined as the failure
to do what can be done and what is required to be done (West's Legal Thesaurus/Dictionary, 1986). In its generic
sense, it would not matter whether such refusal is intended or unintended. But here that is not the real issue. To
warrant conviction for a violation of Section 3 (f) of the Anti-Graft and Corrupt Practices Act, the law itself
additionally requires that the accused's dereliction, besides being without
justification, must be for the purpose of (a) obtaining, directly or indirectly, from any person interested in the
matter some pecuniary or material benefit or advantage in favor of an interested party or (b) discriminating
against another interested party. The severity of the penalty imposed by the law leaves no doubt that the
legislative intent is to consider this element to be indispensable.

The record is bereft of evidence, albeit alleged, to indicate that the petitioner's failure to act was motivated by any
gain or benefit for himself or knowingly for the purpose of favoring an interested party or discriminating against
another. It is not enough that an advantage in favor of one party, as against another, would result from such
neglect or refusal. Had it been so, the law would have perhaps instead said, "or as a consequence of such neglect
or refusal undue advantage is derived by an interested party or another is unduly discriminated against."

Let it again be said: It has always been the avowed policy of the law that before an accused is convicted of a crime,
his guilt must be proved beyond reasonable doubt, and the burden of that proof rests upon the prosecution. The
stringency with which We have scrupulously observed this rule needs no further explanation; suffice it to say that
it behooves us to do no less whenever at stake is the life or liberty of a person. And so it is, not only in the
appreciation of the evidence but likewise in the application and interpretation of the law.

It is not that We are condoning the misconduct of the petitioner, nor that we are unmindful of the prejudice that
may have been sustained by the private respondent, but the legal remedies lie elsewhere, not in the instant action.

WHEREFORE, the judgment appealed from is REVERSED and the petitioner, Juan Coronado, is hereby acquitted of
the charge on reasonable doubt.

SO ORDERED.

THIRD DIVISION

[ G.R. NO. 172602, April 13, 2007 ]

HENRY T. GO, PETITIONER, VS. THE FIFTH DIVISION, SANDIGANBAYAN AND THE OFFICE OF THE SPECIAL
PROSECUTOR, OFFICE OF THE OMBUDSMAN, RESPONDENTS.

DECISION

CALLEJO, SR., J.:

Before the Court is the petition for certiorari under Rules 65 of the Rules of Court filed by Henry T. Go seeking to
nullify the Resolution dated December 6, 2005 of the Sandiganbayan in Criminal Case No. 28092, entitled People of
the Philippines vs. Vicente C. Rivera, Jr. and Henry T. Go, which denied his motion to quash. Likewise sought to be
nullified is the Sandiganbayan Resolution of March 24, 2006 denying petitioner Go's motion for reconsideration.

The factual and procedural antecedents of the case are as follows:

On May 5, 2003, this Court rendered the Decision in Agan, Jr. v. Philippine International Air Terminals Co., Inc.
(PIATCO),[1] declaring as null and void the 1997 Concession Agreement, the Amended and Restated Concession
Agreement (ARCA), and the Supplemental Contracts entered into between the Government, through the
Department of Transportation and Communications (DOTC) and the Manila International Airport Authority (MIAA),
and PIATCO.

By the aforementioned contracts (collectively known as the PIATCO contracts), the Government awarded in favor
of PIATCO the project for the development of the Ninoy Aquino International Airport Passenger Terminal III (NAIA
IPT III) under a build-operate-and-transfer (BOT) scheme pursuant to Republic Act (RA) No. 6957 as amended by RA
7718 (BOT Law).[2]

The Court ruled that Paircargo Consortium, PIATCO's predecessor-in-interest, was not a qualified bidder as it failed
to meet the financial capability requirement under the BOT Law. Moreover, the PIATCO contracts were declared
null and void for being contrary to public policy. The penultimate paragraph of the Court's Decision states thus:
 CONCLUSION

In sum, this Court rules that in view of the absence of the requisite financial capacity of the Paircargo Consortium,
predecessor of respondent PIATCO, the award by the PBAC of the contract for the construction, operation and
maintenance of the NAIA IPT III is null and void. Further, considering that the 1997 Concession Agreement contains
material and substantial amendments, which amendments had the effect of converting the 1997 Concession
Agreement into an entirely different agreement from the contract bidded upon, the 1997 Concession Agreement is
similarly null and void for being contrary to public policy. The provisions under Section 4.04(b) and (c) in relation to
Section 1.06 of the 1997 Concession Agreement and Section 4.04(c) in relation to Section 1.06 of the ARCA, which
constitute a direct government guarantee expressly prohibited by, among others, the BOT Law and its
Implementing Rules and Regulations are also null and void. The Supplements, being accessory contracts to the
ARCA, are likewise null and void.[3]
Subsequently, an affidavit-complaint, later amended, was filed with the Office of the Ombudsman by Ma. Cecilia L.
Pesayco, Corporate Secretary of Asia's Emerging Dragon Corporation (AEDC), charging several persons in
connection with the NAIA IPT III project. The AEDC was the original proponent thereof which, however, lost to
PIATCO when it failed to match the latter's bid price.

After conducting a preliminary investigation thereon, the Office of the Ombudsman filed with
the Sandiganbayan the Information dated January 13, 2005 charging Vicente C. Rivera, as then DOTC Secretary,
and petitioner Go, as Chairman and President of PIATCO, with violation of Section 3(g) [4] of RA 3019, also known as
the Anti-Graft and Corrupt Practices Act. The case was docketed as Criminal Case No. 28092, entitled People of the
Philippines vs. Vicente C. Rivera, Jr. and Henry T. Go. The Information reads:

INFORMATION

The undersigned Graft Investigation and Prosecution Officer II, Office of the Deputy Ombudsman for Luzon,
accuses VICENTE C. RIVERA, JR. and HENRY T. GO with Violation of Sec. 3 (g), R.A. No. 3019 committed as follows:

On or about November 26, 1998, or sometime prior or subsequent thereto, in Quezon City, Philippines and within
the jurisdiction of this Honorable Court, the accused VICENTE C. RIVERA, JR., Secretary of the Department of
Transportation and Communications (DOTC), committing the offense in relation to his office and taking advantage
of the same, in conspiracy with accused HENRY T. GO, Chairman and President of the Philippine International Air
Terminals, Co., Inc. (PIATCO), did then and there, willfully, unlawfully and feloniously enter into an Amended and
Restated Concession Agreement (ARCA), after the project for the construction of the Ninoy Aquino International
Passenger Terminal III (NAIA IPT III) was awarded to Paircargo Consortium/PIATCO, which ARCA substantially
amended the draft Concession Agreement covering the construction of the NAIA IPT III under Republic Act 6957 as
amended by Republic Act 7718 (BOT Law) providing that the government shall assume the liabilities of PIATCO in
the event of the latter's default specifically Article IV, Section 4.04 (c) in relation to Article I, Section 1.06 of the
ARCA which term is more beneficial to PIATCO and in violation of the BOT law, and manifestly and grossly
disadvantageous to the government of the Republic of the Philippines.
CONTRARY TO LAW.[5]
On February 11, 2005, petitioner Go posted a cash bond for his provisional liberty.

On February 15, 2005, the Sandiganbayan issued a Hold Departure Order against Rivera and petitioner Go.

On March 28, 2005, petitioner Go was arraigned and entered a plea of "not guilty."

On May 26, 2005, Rivera filed a Motion for Judicial Determination (or Re-Determination) of Probable Cause and
Motion to Dismiss. The Sandiganbayan gave petitioner Go a period of ten (10) days within which to file a comment
thereon.

On June 20, 2005, petitioner Go filed his Comment with Motion to Quash. Adopting the view advanced by Rivera,
petitioner Go harped on the alleged "missing documents," including Pesayco's amended affidavit-complaint and
those others that were mentioned in the resolution of the Office of the Deputy Ombudsman finding probable
cause against Rivera and petitioner Go, but which were not allegedly in the records. Petitioner Go maintained that
apart from the bare allegations contained in Pesayco's affidavit-complaint, there was no supporting evidence for
the finding of the existence of probable cause against him and Rivera. Petitioner Go further alleged that he could
not be charged under Section 3(g) of RA 3019 because he is not a public officer and neither is he capacitated to
enter into a contract or transaction on behalf of the government. At least one of the important elements of the
crime under Section 3(g) of RA 3019 is not allegedly present in his case.

On June 21, 2005, petitioner Go filed a Manifestation with Motion to Substitute the Comment with Motion to
Quash, which the prosecution, through the Office of the Ombudsman, opposed.

On December 6, 2005, the Sandiganbayan issued the assailed Resolution denying Rivera's Motion for Judicial
Determination (Re-Determination) of Probable Cause and Motion to Dismiss and petitioner Go's Motion to Quash.

The Sandiganbayan ruled that, contrary to the prosecution's submission, it could still entertain petitioner Go's
Motion to Quash even after his arraignment considering that it was based on the ground that the facts charged do
not constitute an offense. Nonetheless, theSandiganbayan denied petitioner Go's Motion to Quash holding that,
contrary to his claim, the allegations in the Information actually make out the offense charged. More particularly,
the allegations that accused Rivera, as DOTC Secretary, in conspiracy with petitioner Go, entered into the ARCA
with petitioner Go/PIATCO, which agreement was manifestly and grossly disadvantageous to the government, are
constitutive of the elements of the offense charged as defined under Section 3(g) of RA 3019.

The Sandiganbayan explained that petitioner Go's contentions that he is not a public officer, he did not conspire
with Rivera in the execution of the ARCA and, in any case, the said agreement cannot be said to be manifestly and
grossly disadvantageous to the government, could not be properly considered for the purpose of quashing the
Information on the ground relied upon by him. According to the Sandiganbayan, these matters raised by petitioner
Go have to be proved during trial.

The decretal portion of the assailed Sandiganbayan Resolution reads:

WHEREFORE, in light of the foregoing, the "Motion for Determination (Re-Determination) of Probable Cause and
Motion to Dismiss" and the "Motion to Quash," filed by accused Vicente C. Rivera, Jr. and Henry T. Go,
respectively, are hereby DENIED.

SO ORDERED.[6]
Petitioner Go filed a motion for reconsideration thereof but it was denied by the Sandiganbayan in the Resolution
dated March 24, 2006.

Petitioner Go now seeks recourse to the Court and, in support of his petitioner, alleges that:

A.
The Honorable Sandiganbayan committed grave abuse of discretion amounting to lack or excess of jurisdiction in
not ruling that Section 3(g) does not embrace a private person within its proviso.

B.

The Honorable Sandiganbayan committed grave abuse of discretion amounting to lack or excess of jurisdiction in
not ruling that there is no probable cause to hold petitioner for trial. [7]
Petitioner Go contends that Section 3(g) of RA 3019, by its text, cannot be extended or even enlarged by
implication or intendment to bring within its limited scope private persons. The said provision of law allegedly
punishes only public officers as it penalizes the act of "entering, on behalf of the government, into any contract or
transaction manifestly and grossly disadvantageous to the same, whether or not the public officer profited or will
profit thereby." As a private person, he could not allegedly enter into a contract "on behalf of the government,"
there being no showing of any agency relations or special authority for him to act for and on behalf of the
government.

Citing several cases,[8] petitioner Go enumerates the following elements of Section 3(g) of RA 3019:

(1) that the accused is a public officer;

(2) that he entered into a contract or transaction on behalf of the government; and

(3) that such contract or transaction is grossly and manifestly disadvantageous to the government.
He also cites Marcos v. Sandiganbayan[9] where the Court acquitted then First Lady Imelda R. Marcos of the charge
of violation of Section 3(g) of RA 3019 as it found that she did not sign the subject Lease Agreement, entered into
between the Light Railway Transit Authority (LRTA) and Philippine General Hospital Foundation, Inc. (PGHFI), as a
public officer, but in her capacity as Chairman of the PGHFI, a private entity. As such, the Court held that the first
element of the offense charged, i.e., that the accused is a public officer, was wanting.

Petitioner Go claims that, in the same manner, the first element of the offense charged against him is absent
because he is not a public officer who is authorized by law to bind the government through the act of "entering
into a contract." He also points out that, similar to his case, in Marcos, the Information also alleged that the former
First Lady conspired with a public officer, then Minister Jose P. Dans of the Ministry of Transportation and
Communications, in entering into a contract. Nonetheless, the Court therein dismissed the allegation of
conspiracy.

Petitioner Go maintains that by any of its definition,[10] he cannot be considered a "public officer." Further, only a
public officer can enter into a

contract in representation of the government. He stresses that the first element of the offense, i.e., that the
accused is a public officer, is an essential ingredient of the crime under Section 3(g) of RA 3019. He likens it to the
crime of parricide where the essential element is the relationship of the offender to the victim and, citing a
criminal law book author, a stranger who cooperates in the execution of the offense is not allegedly guilty of this
crime. The stranger is allegedly either liable for homicide or murder but never by "conspiracy to commit
parricide."[11]

By parity of reasoning, according to petitioner Go, the first essential element of the crime penalized under Section
3(g) of RA 3019 is that the offender must be a public officer. Since he is not a public officer, one of the essential
elements of the offense is lacking; hence, there is no other recourse but to quash the Information.

Section 9 of RA 3019 was also cited which reads:

SEC. 9. Penalties for violation.

(a) Any public officer or private person committing any of the unlawful acts or omissions enumerated in Sections 3,
4, 5, and 6 of this Act shall be punished with imprisonment for not less than six years and one month or fifteen
years, perpetual disqualification from public office, and confiscation or forfeiture in favor of the Government of
any prohibited interest and unexplained wealth manifestly out of proportion to his salary and other lawful income.

xxx
Petitioner Go posits that had it been the intention of the lawmakers to penalize private persons who supposedly
"conspired" with public officers in violation of Sections 3, 4, 5 and 6 of RA 3019, it could have easily used the
conjunctive "and," not "or," between the terms "public officer" and "private person" in Section 9 thereof.
Petitioner Go takes exception to the Sandiganbayan's pronouncement that even as a private individual he is not
excluded from the coverage of Section 3(g) of RA 3019 because he is not being accused singly but as someone who
conspired with a public officer in violating the said law. According to petitioner Go, this proposition applies only to
Section 3(e)[12] of RA 3019, the elements of which include that "the accused are public officers or private persons
charged in conspiracy with them."[13] He stresses that, unlike Section 3(e) of RA 3019, Section 3(g) thereof
penalizes only public officers as the operative phrase in the latter provision is "on behalf of the government."

Petitioner Go vigorously asserts that there is no basis for the finding of probable cause against him for violation of
Section 3(g) of RA 3019. In particular, he insists that the allegation of conspiracy between Rivera and himself is not
supported by any evidence. He makes an issue out of those documents that were mentioned in the resolution of
the Deputy Ombudsman finding probable cause against him but were not in the records of the Sandiganbayan. His
mere signing of the ARCA does not allegedly establish culpability for violation of RA 3019. Further, he faults
the Sandiganbayan for invoking the doctrine of non-interference by the courts in the determination by the
Ombudsman of the existence of probable cause. It is petitioner Go's view that the Sandiganbayan should have
ordered the quashal of the Information for palpable want of probable cause coupled with the absence of material
documents.

The petition is bereft of merit.

For clarity, Section 3(g) of RA 3019 is quoted below anew:

SEC. 3. Corrupt practices of public officers. In addition to acts or omissions of public officers already penalized by
existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be
unlawful:

xxx

(g) Entering, on behalf of the Government, into any contract or transaction manifestly and grossly disadvantageous
to the same, whether or not the public officer profited or will profit thereby.
As earlier mentioned, the elements of this offense are as follows:

(1) that the accused is a public officer;

(2) that he entered into a contract or transaction on behalf of the government; and

(3) that such contract or transaction is grossly and manifestly disadvantageous to the government.[14]
Contrary to the contention of petitioner Go, however, the fact that he is not a public officer does not necessarily
take him out of the ambit of Section 3(g) of RA 3019. Petitioner Go's simplistic syllogism, i.e., he is not a public
officer ergo he cannot be charged with violation of Section 3(g) of RA 3019, goes against the letter and spirit of the
avowed policy of RA 3019 as embodied in Section 1 thereof:

SEC. 1. Statement of policy. It is the policy of the Philippine Government, in line with the principle that a public
office is a public trust, to repress certain acts of public officers and private persons alike which constitute graft or
corrupt practices or which may lead thereto.
As early as in 1970, through the erudite Justice J.B.L. Reyes in Luciano v. Estrella,[15] the Court had ascertained the
scope of Section 3(g) of RA 3019 as applying to both public officers and private persons:

x x x [T]he act treated thereunder [referring to Section 3(g) of RA 3019] partakes the nature of malum prohibitum;
it is the commission of that act as defined by law, not the character or effect thereof, that determines whether or
not the provision has been violated. And this construction would be in consonance with the announced purpose
for which Republic Act 3019 was enacted, which is the repression of certain acts of public officers and private
persons constituting graft or corrupt practices act or which may lead thereto. [16]
Like in the present case, the Information in the said case charged both public officers and private persons with
violation of Section 3(g) of RA 3019.

Section 9 of RA 3019 buttresses the conclusion that the anti-graft law's application extends to both public officers
and private persons. The said provision, quoted earlier, provides in part that:

SEC. 9. (a) Any public officer or private person committing any of the unlawful acts or omissions enumerated in
Sections 3, 4, 5 and 6 of this Act shall be punished with imprisonment for not less than six years and one month
nor more than fifteen years, perpetual disqualification from public office, and confiscation or forfeiture in favor of
the Government of any prohibited interest and unexplained wealth manifestly out of proportion to his salary and
other lawful income.

xxx
The fact that one of the elements of Section 3(g) of RA 3019 is �that the accused is a public officer' does not
necessarily preclude its application to private persons who, like petitioner Go, are being charged with conspiring
with public officers in the commission of the offense thereunder.

The case of Singian, Jr. v. Sandiganbayan[17] is instructive. In the said case, Gregorio Singian, Jr., a private person
who was then Executive Vice-President of Integrated Shoe, Inc. (ISI), together with some officers of the Philippine
National Bank (PNB), was charged with violation of Section 3(e) and (g) of RA 3019 in connection with the loan
accommodations that the said bank extended to ISI which were characterized as behest loans.

A total of eighteen Informations were filed against Singian and his co-accused by the Office of the Ombudsman
before the Sandiganbayancorresponding to the nine loan accommodations granted to ISI. Each loan was subject of
two Informations alleging violations of both Section 3(e) and (g), respectively. In other words, nine Informations
charged Singian and his co-accused with violation of Section 3(e) of RA 3019 and the other nine charged them with
violation of paragraph (g) of the same provision.

Singian filed with the Sandiganbayan a motion for re-determination of existence of probable cause but the same
was dismissed. He then filed with the Court a petition for certiorari but it was likewise dismissed as the Court held
that the Ombudsman and the Sandiganbayanhad not committed grave abuse of discretion when they respectively
found probable cause against Singian for violations of both paragraphs (e) and (g) of Section 3 of RA 3019.

Singian thus illustrates that private persons, like petitioner Go, when conspiring with public officers, may be
indicted and, if found guilty, held liable for violation of Section 3(g) of RA 3019. Another case, Domingo v.
Sandiganbayan,[18] may likewise be applied to this case by analogy.

In the said case, Diosdado Garcia, proprietor of D.T. Garcia Construction Supply, together with Jaime Domingo,
then municipal mayor of San Manuel, Isabela, was charged with Section 3(h) of RA 3019 as it appeared that he was
used by Domingo as a dummy to cover up his business transaction with the municipality. Section 3(h) of the anti-
graft law reads:

SEC.3. Corrupt practices of public officers. x x x

(h) Directly or indirectly having financial or pecuniary interest in any business, contract or transaction in
connection with which he intervenes or takes part in his official capacity, or in which he is prohibited by the
Constitution or by any law from having an interest.
The elements of this offense are: (1) that the accused is a public officer; (2) he has a direct or indirect financial or
pecuniary interest in any business, contract, or transaction; (3) he either: (a) intervenes or takes part in his official
capacity in connection with such interest, or (b) is prohibited from having such interest by the Constitution or by
law.[19]
Despite the first element mentioned above, the Court affirmed the conviction of Garcia, a private individual, as
well as that of Domingo, who was then a municipal mayor, for violation of Section 3(h) of RA 3019. In so holding,
the Court established that Domingo and Garcia acted in conspiracy with one another in the commission of the
offense. Domingo thus also serves to debunk petitioner Go's theory that where an offense has as one of its
elements that the accused is a public officer, it necessarily excludes private persons from the scope of such
offense.

The precept that could be drawn from Luciano, Singian and Domingo, and which is applicable to the present case,
is that private persons, when acting in conspiracy with public officers, may be indicted and, if found guilty, held
liable for the pertinent offenses under Section 3 of RA 3019, including (g) and (h) thereof. This is in consonance
with the avowed policy of the anti-graft law to repress certain acts of public officers and private persons
alike constituting graft or corrupt practices act or which may lead thereto.

Reliance by petitioner Go on Marcos v. Sandiganbayan[20] is not quite appropriate. To recall, upon her motion for
reconsideration, the Court therein acquitted former First Lady Imelda Marcos of the charge of violation of Section
3(g) of RA 3019 in its Resolution dated October 6, 1998. Her acquittal was based on the finding that she signed the
subject lease agreement as a private person, not as a public officer. As such, the first element, i.e., that the
accused is a public officer was wanting.

Petitioner Go, however, failed to put the Court's ruling in Marcos in its proper factual backdrop. The acquittal of
the former First Lady should be taken in the context of the Court's Decision dated January 29, 1998, in Dans, Jr. v.
People,[21] which the former First Lady sought to reconsider and, finding merit in her motion, gave rise to the
Court's Resolution in Marcos. In Dans, the Information filed against the former First Lady and Jose P. Dans, Jr., then
Minister of Transportation and Communications, for violation of Section 3(g) of RA 3019, alleged that they were
both public officers and, conspiring with each other, entered into the subject lease agreement covering the LRTA
property with the PGHFI, a private entity, under terms and conditions manifestly and grossly disadvantageous to
the government.

The Court in its original decision affirmed the former First Lady's conviction for violation of Section 3(g) of RA 3019
but acquitted her co-accused, Dans, Jr., of the said offense. As stated earlier, upon the former First Lady's motion
for reconsideration, the Court reversed her conviction in its Resolution in Marcos.

It can be gleaned from the entire context of Marcos and Dans that the reversal of the former First Lady's conviction
was based on the fact that it was later held that she signed the subject lease agreement as a private person, not a
public officer. However, this acquittal should also be taken in conjunction with the fact that the public officer with
whom she had supposedly conspired, her co-accused Dans, had earlier been acquitted. In other words, the
element that the accused is a public officer, was totally wanting in the former First Lady's case because Dans, the
public officer with whom she had allegedly conspired in committing Section 3(g) of RA 3019, had already been
acquitted. Obviously, the former First Lady could not be convicted, on her own as a private person, of the said
offense.

In contrast, petitioner Go cannot rightfully assert the total absence of the first element in his case because he is
not being charged alone but in conspiracy with Rivera, undoubtedly a public officer by virtue of his then being the
DOTC Secretary. The case against both of them is still pending before the Sandiganbayan. The facts attendant in
petitioner Go's case are, therefore, not exactly on all fours as those of the former First Lady's case as to warrant
the application of the Marcos ruling in his case.

Anent the allegation of conspiracy, it is posited by the dissenting opinion that the Information is infirm as far as
petitioner Go is concerned because it failed to mention with specificity his participation in the planning and
preparation of the alleged conspiracy. It opines that "aside from the sweeping allegation of conspiracy, the
Information failed to mention any act as to how petitioner had taken part in the planning and preparation of the
alleged conspiracy. Mere allegation of conspiracy in the Information does not necessarily mean that the criminal
acts recited therein also pertain to petitioner." While it concedes that the Sandiganbayan may exercise jurisdiction
over private individuals, it submits that it may do so only "upon Information alleging with specificity the precise
violations of the private individual." By way of conclusion, the dissenting opinion cites Sistoza v. Desierto[22] where
the Court stated that a signature appearing on a document is not enough to sustain a finding of conspiracy among
officials and employees charged with defrauding the government.

These asseverations, however, are unpersuasive. It is well established that the presence or absence of the
elements of the crime is evidentiary in nature and is a matter of defense that may be passed upon after a full-
blown trial on the merits.[23] In the same manner, the absence (or presence) of any conspiracy among the accused
is evidentiary in nature and is a matter of defense, the truth of which can be best passed upon after a full-blown
trial on the merits.[24]

Following these truisms, the specific acts of petitioner Go in the alleged conspiracy with Rivera in violating Section
3(g) of RA 3019 as well as the details on how petitioner Go had taken part in the planning and preparation of the
alleged conspiracy need not be set forth in the Information as these are evidentiary matters and, as such, are to be
shown and proved during the trial on the merits. Indeed, it bears stressing that "[t]o establish conspiracy, direct
proof of an agreement concerning the commission of a felony and the decision to commit it is not necessary. It
may be inferred from the acts of the accused before, during or after the commission of the crime which, when
taken together, would be enough to reveal a community of criminal design, as the proof of conspiracy is
frequently made by evidence of a chain of circumstances. Once established, all the conspirators are criminally
liable as co-principals regardless of the degree of participation of each of them, for in contemplation of the law the
act of one is the act of all."[25]

In this connection, for purposes of the Information, it is sufficient that the requirements of Section 8, Rule 110 of
the Rules of Court are complied with:

SEC. 8. Designation of the offense. The complaint or information shall state the designation of the offense given by
the statute, aver the acts or omissions constituting the offense, and specify its qualifying and aggravating
circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the
statute punishing it.
An accused, like petitioner Go, may file a motion to quash the Information under Section 3(a) of Rule 117 on the
grounds that the facts charged do not constitute an offense. In such a case, the fundamental test in determining
the sufficiency of the material averments of an Information is whether or not the facts alleged therein, which are
hypothetically admitted, would establish the essential elements of the crime defined by law. Evidence aliunde or
matters extrinsic of the Information are not to be considered. [26]

As correctly outlined by the Office of the Ombudsman, the facts alleged in the Information, if admitted
hypothetically, establish all the elements of Section 3(g) of RA 3019 vis-à-vis petitioner Go:

ELEMENTS ALLEGATIONS
[T]he accused VICENTE C. RIVERA, JR., Secretary of
Department of Transportation and Communications (DOTC),
1. The offender is a committing the offense in relation to his office and taking
public officer advantage of the same, in conspiracy with accused HENRY
T. GO, Chairman and President of Philippine International
Air Terminals, Co., xxx"
"[T]he accused VICENTE C. RIVERA, JR., xxx in conspiracy
with accused HENRY T. GO xxx did then and there, willfully
2. He entered into a
& unlawfully and feloniously entered into an Amended and
contract or transaction
Restated Concession Agreement (ARCA), after the project
in behalf of the
for the construction of the Ninoy Aquino International
government
Airport International Passenger Terminal III (NAIA IPT III)
was awarded to Paircargo Consortium/PIATCO x x x
3. The contract or "xxx which ARCA substantially amended the draft
 transaction is grossly Concession Agreement covering the construction of the
and manifestly NAIA IPT III under Republic Act 6957, as amended by
disadvantageous to the Republic Act 7718 (BOT Law) providing that the government
government shall assume the liabilities of PIATCO in the event of the
latter�s default specifically Article IV, Section 4.04 (c) in
relation to Article I, Section 1.06 of the ARCA which terms
are more beneficial to PIATCO and in violation of the BOT
Law and manifestly grossly disadvantageous to the
government of the Republic of the Philippines."[27]

Finally, in the assailed Resolution dated March 24, 2006, the Sandiganbayan ratiocinated thus:

The rule is that the determination of probable cause during the preliminary investigation is a function that belongs
to the public prosecutor, the Office of the Ombudsman in this case. Such official is vested with authority to
determine whether or not a criminal case must be filed in court and the concomitant function of determining as
well the persons to be prosecuted. Also, it must not be lost sight of that the correctness of the exercise of such
function is a matter that the trial court itself does not and may not be compelled to pass upon, consistent with the
policy of non-interference by the courts in the determination by the Ombudsman of the existence of probable
cause.

Accordingly, upon the foregoing premises, we believe and so hold that any and all questions relating to the finding
of probable cause by the Office of the Ombudsman should be addressed to the said office itself, then to the Court
of Appeals and, ultimately, to the Supreme Court.

On the matter of the judicial determination of probable cause, we stand by our finding that the same exists in this
case, the said finding we arrived at upon a personal determination thereof which we did for the purpose of and
before the issuance of the warrant of arrest. While it may indeed be true that the documents mentioned by
accused-movant as being absent in the records are missing, we nevertheless had for our perusal other documents
assiduously listed down by accused Rivera in his motion, including the information, which we found to constitute
sufficient basis for our determination of the existence of probable cause. It must be emphasized that such
determination is separate and distinct from that made by the Office of the Ombudsman and which we did
independently therefrom.[28]
The determination of probable cause during a preliminary investigation is a function of the government
prosecutor, which in this case is the Ombudsman. As a rule, courts do not interfere in the Ombudsman's exercise
of discretion in determining probable cause, unless there are compelling reasons. [29] Mindful of this salutary rule,
the Sandiganbayan nonetheless made its own determination on the basis of the records that were before it. It
concluded that there was sufficient evidence in the records for the finding of the existence of probable cause
against petitioner Go.

Grave abuse of discretion implies a capricious and whimsical exercise of judgment tantamount to lack or excess of
jurisdiction. The exercise of power must have been done in an arbitrary or a despotic manner by reason of passion
or personal hostility. It must have been so patent and gross as to amount to an evasion of positive duty or a virtual
refusal to perform the duty enjoined or to act at all in contemplation of law.[30] Clearly, in the light of the foregoing
disquisition, grave abuse of discretion cannot be imputed on theSandiganbayan when it held that there exists
probable cause against petitioner Go.

ACCORDINGLY, the petition is DISMISSED for lack of merit. The assailed Resolutions dated December 6, 2005 and
March 24, 2006 of the Sandiganbayan in Criminal Case No. 28092 are AFFIRMED in toto.

SO ORDERED.
 FIRST DIVISION

[ G.R. Nos. 137355-58, September 25, 2007 ]

EUGENIO U. CABALLERO, NERITA CUENTO AND MA. THERESA G. CABALLERO, PETITIONERS, VS. SANDIGANBAYAN
(THIRD DIVISION) AND PEOPLE OF THE PHILIPPINES, RESPONDENTS.

DECISION

GARCIA, J.:

In this joint petition for certiorari and prohibition under Rule 65 of the Rules of Court, petitioners assail and seek to
set aside the Sandiganbayan's resolution[1] dated December 8, 1998 in Criminal Case Nos. 24366-69, denying their
motion to quash, and its resolution[2] of February 12, 1999 which likewise denied their motion for reconsideration.
The prohibition aspect of the petition aims at prohibiting the respondent court from taking further proceedings in
said criminal cases.

Petitioner Eugenio Caballero, at the time this petition was filed in 1999, was the incumbent mayor of the
Municipality of Manukan, Zamboanga del Norte, while co-petitioner Ma. Theresa Caballero is his wife and the
proprietress of GP's Food Catering Services and Genty General Merchandise. Co-petitioner Nerita Cuento, on the
other hand, was the municipal accountant of Manukan, Zamboanga del Norte.

The factual antecedents:

During Caballero's incumbency as municipal mayor in 1993, the Municipality of Manukan, Zamboanga del Norte
conducted committee hearings on tax ordinance and seminar-workshop on budget, undertakings which required
the purchase of materials for use therefor and catering services for the meals and snacks of the participants. For
the purpose, a public bidding was held by the Committee on Awards, during which awards were made to the
lowest bidder, namely, Genty General Merchandise for the supply of materials, and GP's Food Catering Services for
the supply of meals and snacks. Both entities were admittedly owned and operated by the mayor's wife, Theresa
Caballero.

Thereafter, a letter-complaint was filed by one Crisologo Decierdo before the Office of the Auditor in Roxas,
Zamboanga del Norte charging Mayor Caballero and his wife Theresa, Municipal Treasurer Semie Torres and
Municipal Accountant Nerita Cuento of violating Republic Act (RA) No. 3019, otherwise known as the Anti-Graft
and Corrupt Practices Act. The letter-complaint charged the municipal officials for allowing their offices to be used
as a tool to unlawfully secure benefits to favor the mayor and his wife in connection with the supply of materials
and meals by Theresa Caballero's businesses, i.e., GP's Food Catering Services and Genty General Merchandise.

State Auditor Leonilo Morales of Roxas, Zamboanga del Norte was tasked to investigate and determine whether
the complaint was meritorious as to warrant the filing of criminal and/or administrative case against Mayor
Caballero, et al. In his Report[3] dated June 16, 1995, Morales made the following findings:

1. The awarding of the winning bidder was made only after the bidders have complied with all the terms and
conditions stated in the "Invitation to Bid/Call for Quotation" and after determining whose bid is most
advantageous to the government;
2.
3. In the opening and awarding of bids, Mayor Caballero did not sit as "Chairman" of the Committee on
Awards. The Committee on Awards, without the participation of Mayor Caballero, awarded to GP's Food
Catering Services the contract for meals and snacks as the lowest bidder and as it offered, free of charge,
 its building space as convention hall for the seminar/workshop; and to Genty General Merchandise for the
supply of the materials as the lowest bidder; and
4.
5. After delivery of the goods and after their payment, when all transactions had been completed, the four
vouchers together with their supporting documents were forwarded to Mayor Caballero for signature
which he did only on November 9, 1993.

Accordingly, State Auditor Morales recommended in his Report the dismissal of the complaint against Mayor
Caballero, et al. for lack of sufficient basis.

However, despite Morales' findings and recommendation, the Office of the Ombudsman-Mindanao proceeded
with the investigation of the same complaint, and, in a resolution dated October 14, 1997, Graft Investigation
Officer Corazon A. Arancon found a prima facie case for violation of Section 3(h) of RA No. 3019[4] and
recommended the filing of the corresponding information against Mayor Caballero, et al. The resolution was
approved by then Ombudsman Aniano A. Desierto.

Thereafter, four (4) informations,[5] all for violation of Section 3(h) of RA No. 3019, were filed against the herein
petitioners and one Semie Torres before the Sandiganbayan, thereat docketed as Criminal Case Nos. 24366, 24367,
24368 and 24369. The information in Criminal Case No. 24366 alleged as follows:

That in or about the month of September 1993 or sometime prior or subsequent thereto, in the Municipality of
Manukan, Zamboanga del Norte, Philippines and within the jurisdiction of this Honorable Court, accused EUGENE
U. CABALLERO, a high ranking public officer, being the Mayor of the Municipality of Manukan, together with
accused SEMIE L. TORRES and NERITA E. CUENTO, Municipal Treasurer and Municipal Accountant, respectively,
also of the said municipality, all while in the performance of their official functions, thus committing the offense in
relation to their office, confederating together, helping one another and in conspiracy with private person Theresa
G. Caballero, accused Mayor Caballero, did then and there willfully, unlawfully and feloniously approved the award
to GP's Food Catering Services, an establishment registered in the name of accused MA. THERESA G. CABALLERO,
the wife of accused Mayor Caballero and of the Purchase Order for meals and snacks to be served during the
training of Barangay Captains/Barangay Health Workers/Barangay Nutrition Scholars upon the recommendation of
accused Torres and thereafter, approved disbursement voucher no. 101-9311-973 in the amount of Five Thousand
Pesos (P5,000.00) as certified by accused Torres that the expense is legal and by accused Cuento that there is
adequate fund available for the purpose, in violation of the Anti-Graft and Corrupt Practices Act.

CONTRARY TO LAW.
Similarly worded were the informations in Criminal Case Nos. 24367, 24368 and 24369, except for the variance in
the amounts and the disbursement voucher (DV) number, viz:

Criminal Case No.DV Number Amount

24367 101-9311-974P3,600.00
24368 101-9311-970 3,593.66
24369 101-9311-972 1,499.00
Meanwhile, Municipal Treasurer Semie Torres died on September 13, 1997. Hence, the complaint against him was
dismissed.[6]

On September 18, 1998, petitioners filed a Motion to Quash the four informations on the ground that the facts
charged therein do not constitute the offense of violation of Section 3(h) of RA No. 3019.

On October 8, 1998, Special Prosecution Officer II Norberto Ruiz of the Office of the Ombudsman filed his
comment on the motion, thereunder recommending the quashal of the informations on the ground that there
existed no case for violation of Section 3(h) of RA No. 3019 because the requirements of public bidding and
auditing regulations have been faithfully complied with, and that there was no evidence at all that Mayor Caballero
influenced or coerced the members of the Committee on Awards to favor his wife's bids for the items subject of
the bidding.

In the herein first assailed resolution dated December 8, 1998, the Sandiganbayan, thru its Third Division, denied
the petitioners' motion to quash. Partly says the respondent court:

Indeed, the facts charged in the informations constitute the offense of violation of Section 3(h) of Republic Act
3019, as amended, because (1) the accused is a Municipal Mayor and therefore, a public officer; (2) he has
financial or pecuniary interest in the business, contract or transaction entered into by GP's Food Catering Services
with the government considering that the said establishment is registered in the name of his wife; and (3) he
intervened and took part, in his official capacity as Mayor, in the consummation of said contract or transaction by
approving the award made by the Committee on Awards in favor of said establishment. [7]
With their motion for reconsideration having been denied by the Sandiganbayan in its subsequent resolution of
February 12, 1999, petitioners are now with this Court via the instant recourse, submitting for our consideration
the following arguments:

1. THE SANDIGANBAYAN, THIRD DIVISION, COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO

LACK OF JURISDICTION WHEN IT REFUSED TO QUASH THE INFORMATIONS EVEN WHEN THE FACTS
ALLEGED IN THE INFORMATIONS AND THE UNDISPUTED FACTS AND DOCUMENTS ADMITTED BY THE
PROSECUTION DO NOT CONSTITUTE THE OFFENSE DEFINED IN SEC. 3(H) OF RA 3019, AS AMENDED, THE
ELEMENTS THEREOF NOT BEING PRESENT AS SHOWN BY SAID FACTS AND DOCUMENTS, AND EVEN WHEN
THE PROSECUTION RECOMMENDED THE QUASHAL OF THE INFORMATIONS ON SUCH GROUND;
2.
3. ASSUMING, ARGUENDO, THAT PETITIONERS WERE PROBABLY GUILTY OF THE OFFENSE AND SHOULD BE
HELD TO TRIAL, THE SANDIGANBAYAN HAS NO JURISDICTION OVER THE OFFENSE ALLEGED TO HAVE BEEN
COMMITTED BY PETITIONER MUNICIPAL MAYOR EUGENE CABALLERO AND THE OTHER ACCUSED,
PURSUANT TO REPUBLIC ACT NOS. 7975 AND 8249 BECAUSE A MUNICIPAL MAYOR IS NOT ONE OF THOSE
OFFICIALS SPECIFICALLY MENTIONED IN SAID ACTS WHOSE OFFENSES COME WITHIN THE JURISDICTION
OF THE SANDIGANBAYAN.[8]

Essentially, the arguments raised center on two principal issues, to wit: (1) whether or not the facts alleged and
charged in the informations constitute the offense defined in Section 3(h) of RA No. 3019; and (2) whether or not
the Sandiganbayan exercises exclusive original jurisdiction over criminal cases involving municipal mayors accused
of violations of RA No. 3019.

We shall first address the issue of jurisdiction.

Petitioners question the jurisdiction of the Sandiganbayan over the offense alleged to have been committed by
Mayor Caballero because the position of a municipal mayor is not included in the enumeration in Section 4a(1) of
Presidential Decree (PD) No. 1606,[9] as amended by RA No. 7975[10] and RA No. 8249.[11]

Section 4a(1) of PD 1606, as amended by RA No. 7975 and RA No. 8249, reads:

Sec. 4. Jurisdiction. - The Sandiganbayan shall exercise original jurisdiction in all cases involving:

a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act,
Republic Act No. 1379, and Chapter II, Section 2, Title VII, Book II of the Revised Penal Code, where one or more of
the accused are officials occupying the following positions in the government, whether in a permanent, acting or
interim capacity, at the time of the commission of the offense:
 1. Officials of the executive branch occupying the positions of regional director and higher, otherwise
classified as grade "27" and higher, of the Compensation and Position Classification Act of 1989
(Republic Act No. 6758), specifically including:

Provincial governors, vice-governors, members of the sangguniang panlalawigan,

and provincial treasurers, assessors, engineers, and other provincial department
(a)
heads;

City mayors, vice-mayors, members of the sangguniang panlungsod, city

(b) treasurers, assessors, engineers, and other city department heads;

Official of the diplomatic service occupying the position of consul and higher;
(c)
Philippine army and air force colonels, naval captains, and all officers of higher
(d) rank;

Officers of the Philippine National Police occupying the position of provincial

(e) director and those holding the rank of senior superintendent and higher;

City and provincial prosecutors and their assiatants, and officials and prosecutors
(f) in the Office of the Ombudsman and special prosecutor; and

Presidents, directors or trustees, or managers of government-owned or

(g) controlled corporations, state universities or educational institutions or
foundations.

2. Members of Congress and officials thereof classified as Grade "27" and up under the Compensation and
Position Classification Act of 1989;
3. Members of the judiciary without prejudice to the provisions of the Constitution;
4. Chairmen and members of the Constitutional Commissions, without prejudice to the provisions of the
Constitution; and
5. All other national and local officials classified as Grade "27" and higher under the Compensation and
Position Classification Act of 1989. (Emphasis supplied).

The case of Binay v. Sandiganbayan[12] has finally settled the question of whether or not municipal mayors are
excluded from the Sandiganbayan's exclusive original jurisdiction. There, the Court held that violations of RA No.
3019 by a municipal mayor come within the exclusive original jurisdiction of the Sandiganbayan because under RA
No. 6758, otherwise known as the Compensation and Position Classification Act of 1989, municipal mayors are
local officials classified as Grade "27." They thus fall under the catch-all provision of Section 4a(5) of PD 1606 which
speaks of "national and local officials classified as Grade `27' under the Compensation and Position Classification
Act of 1989." More accurately, municipal mayors fall under Section 4a(1) of PD 1606 as they are "officials of the
executive branch occupying the positions of regional director and higher, otherwise classified as Grade `27' and
higher, of the Compensation and Position Classification Act of 1989."

Moreover, Section 444(d) of the Local Government Code settles any doubt as to whether municipal mayors are
under the category of Salary Grade "27." The provision reads:

The municipal mayor shall receive a minimum monthly compensation corresponding to Salary Grade twenty-seven
("27") as prescribed under R.A. No. 6758 and the implementing guidelines issued pursuant thereto.
Clearly then, the Sandiganbayan has exclusive and original jurisdiction over the herein petitioners.

Petitioners next question the sufficiency of the allegations in the informations in that the same do not constitute
an offense, allegedly because the undisputed facts would show that Mayor Caballero did not intervene nor did he
exert pressure or influence in the awarding of the contract/bid in favor of his wife's business entities. In the main,
petitioners assert that the facts do not even make out a prima faciecase for violation of Section 3(h) of RA No.
3019, hence they are entitled to the quashal of the informations.

On this score, we agree with the petitioners.

Petitioners' Motion to Quash is anchored on Section 3(a), Rule 117, of the Rules of Court, to wit:

Section 3. Grounds.-- The accused may move to quash the complaint or information on any of the following
grounds:

(a) That the facts charged do not constitute an offense;

xxx xxx xxx

The fundamental test in considering a motion to quash anchored on Section 3(a), above, is the sufficiency of the
averments in the information, that is, whether the facts alleged, if hypothetically admitted, would establish the
essential elements of the offense charged as defined by law. It is axiomatic that the information must state every
single fact necessary to constitute the offense charged, otherwise, a motion to quash on the ground that the
information charges no offense may be properly sustained.[13]

Here, the informations sought to be quashed charged petitioners with violation of Section 3, paragraph (h) of the
Anti-Graft and Corrupt Practices Act. The provision allegedly transgressed reads:

Sec. 3. Corrupt practices of public officers. - In addition to acts or omissions of public officers already penalized by
existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be
unlawful:

xxx xxx xxx

(h) Directly or indirectly having financial or pecuniary interest in any business, contract or transaction in
connection with which he intervenes or takes part in his official capacity, or in which he is prohibited by the
Constitution or by any law from having any interest.
Under settled jurisprudence,[14] the following elements need to be proven in order to constitute a violation of
Section 3(h) of RA No. 3019:

1. The accused is a public officer;

2.
3. He has a direct or indirect financial or pecuniary interest in any business, contract, or transaction; and
4.
5. He either (a) intervenes or takes part in his official capacity in connection with such interest, or (b) is
prohibited from having such interest by the Constitution or by any law.

In view of the definition of the offense, the charge herein would specifically pertain to Mayor Caballero, with the
two other petitioners, Nerita Cuento and Theresa Caballero, being charged as co-conspirators of the mayor.

That petitioner Eugenio Caballero is a public officer is undisputed. He was, in fact, the mayor of Manukan,
Zamboanga del Norte at the time the letter-complaint was lodged by complainant Crisologo Decierdo with the
Office of the Auditor, Zamboanga del Norte. There is thus no question that the first element is present in this case.

The second element requires the public officer to have a direct or indirect financial or pecuniary interest in any
business, contract or transaction. The informations stated that GP's Food Catering Services and Genty General
Merchandise were registered in the name of Mayor Caballero's wife, Theresa. The element that the mayor must
have a direct pecuniary interest in the said businesses was sufficiently alleged in the informations because, even if
these entities were registered in his wife's name and not in his own name, still Mayor Caballero would have a
direct interest thereon because they remained married to each other and as such their property relations can be
presumed to be under the regime of conjugal partnership of gains, in the absence of evidence to the contrary.
Article 116 of the Family Code provides that all property of the marriage is presumed to belong to the conjugal
partnership unless it be proved that it pertains exclusively to the husband or to the wife. Too, Article 106 of the
same Code declares that all the properties of the conjugal partnership of gains are owned in common by the
husband and wife. Thus, Mayor Caballero had a direct interest in GP's Food Catering Services and Genty General
Merchandise.

The third element enumerates the two modes by which a public officer who has a direct or indirect financial or
pecuniary interest in any business, contract, or transaction may violate Section 3(h) of the Anti-Graft Law. The first
mode is when the public officer intervenes or takes part in his official capacity in connection with his financial or
pecuniary interest in any business, contract or transaction. The second mode is when he is prohibited from having
such an interest by the Constitution or by law.

The informations alleged that Mayor Caballero "willfully, unlawfully and feloniously approved the award to GP's
Food Catering Services and Genty General Merchandise which were both registered in the name of Ma. Theresa
Caballero, the wife of Mayor Caballero." A reading of the informations would disclose that the third element of the
offense was not sufficiently alleged. As it were, the informations failed to state the mode by which Mayor
Caballero supposedly violated Section 3(h) of the Anti-Graft Law. While it may be deduced therefrom that Mayor
Caballero was indicted via the first mode, that is, by intervening or taking part in his official capacity in connection
with his financial or pecuniary interest in the subject transactions, still there was no statement in the said
informations that Mayor Caballero actually intervened in awarding the contract in favor of his wife's businesses,
which is an element necessary to constitute a violation of Section 3(h) of RA No. 3019. It is essential that the
information states the ultimate facts needed to constitute the offense charged, so that the accused may be
properly apprised of the nature and cause of the accusation against him. [15]

What is more, the undisputed facts of this case would demonstrate that Mayor Caballero did not unlawfully
intervene in his official capacity in connection with the awards to his wife.

In a nutshell, the procedure for the procurement of government supplies and materials can be summarized as
follows: the end-user agency or department draws a purchase request for the supplies and materials; an invitation
to bid is announced; the bidding and award to the lowest bidder will be conducted by the Committee on Awards;
purchase order will then be executed in favor of the winning bidder; the supplies and materials will be delivered to
the end-user agency or department; inspection of the delivered supplies will be made by the requisitioning officer;
and DVs will be executed for payment of the supplies and materials.

As can be gleaned from the records, Mayor Caballero had nary any participation from the drawing of the purchase
request to the awarding of the contracts to the lowest bidder by the Awards Committee. Quite the contrary, the
records reveal that after learning that his wife's business entities were among those invited to bid, Mayor
Caballero inhibited himself in all the proceedings of the Committee on Awards even if he is, by law, the chairman
thereof. It can thus be concluded that the decision by the Awards Committee on who will be the winning bidder
was made through its members' own determination and volition and without any intervention on the part of the
mayor.

To our mind, such act of the mayor in inhibiting himself from taking part in the Committee's proceedings clearly
shows that he had never intended to influence or pressure the members of the Committee on Awards to favor his
wife's bid. When the Committee eventually awarded the contracts to Theresa Caballero, it was only because the
Committee found her bid to be the lowest and the most advantageous to the government, and not because she is
the mayor's wife or because the mayor had a pecuniary interest in it. True enough, GP's Catering Services even
offered its building space free of charge for use by the participants in the seminar-workshop. Indeed, the
advantage to the government was two-fold: one, for the lowest price quotation for the supply of meals; and the
other, for the free use of the building space as convention hall for the entire duration of the seminar-workshop.
With such advantage to the government, it is only logical and appropriate for Mayor Caballero to approve the
awards. Even then, his approval of the awards in favor of his wife's business establishments came after the
decision had already been reached by the Committee on Awards, thus he cannot be said to have influenced the
same. It is, therefore, safe to say that the mayor did not intervene in the transactions as the contracts therefor
were awarded by the Committee without his participation.

Worth citing is the case of Trieste, Sr. v. Sandiganbayan[16] where the Court clarified the kind of intervention that
would constitute a violation of Section 3(h) of RA No. 3019:

What is contemplated in Section 3(h) of the Anti-Graft Law is the actual intervention in the transaction in which
one has financial or pecuniary interest in order that liability may attach. For the law aims to prevent dominant use
of influence, authority and power. (Emphasis supplied.)
The undisputed facts of the case negate any showing that Mayor Caballero had, in his capacity as mayor, used his
influence, power and authority in the award of the two (2) contracts to his wife's business entities. He did not ask
nor did he demand the members of the Committee on Awards to award the respective contracts for the supply of
meals and materials to GP's Food Catering Services and Genty General Merchandise.

Too, while Mayor Caballero signed the DVs, he did it only after all the purchases had already been made, delivered
and paid for by the municipal treasurer. In fine, the mayor's participation was limited to signing the said vouchers
long after the Committee on Awards had decided to award the contracts to the business establishments of his
wife, and long after the transactions had been completed. To stress, the only participation of Mayor Caballero in
the transactions in question was the mechanical act of signing the DVs for accounting and record purposes. As this
Court declared in Trieste:

Inasmuch as Treasurer Vega signed and paid the vouchers after the materials were delivered, petitioner's
(municipal mayor) signature on the vouchers after payment is not, we submit, the kind of intervention
contemplated under Section 3(h) of the Anti-Graft Law.
To be sure, Mayor Caballero's participation in the whole transaction was certainly not the actual and direct
participation that would render him liable under Section 3(h) of the Anti-Graft Law. The third element of the
offense, i.e., he intervenes or takes part in his official capacity in connection with his interest in a business, is thus
wanting herein.

Likewise, the supporting documents, such as the purchase request, sales invoices and the DVs, were all in order as
the signatures of the municipal officials appearing thereon were regular and consistent with the regular course of
business. Records show that Municipal Accountant Nerita Cuento prepared the DVs only after determining that the
same had been properly audited and there were adequate available funds for the purpose.

Clearly, the existence of a prima facie case against petitioners had not been established. It should also be
noted that as early as the initial investigation of the charges against petitioners, the Office of the Auditor-
Zamboanga del Norte found no basis for the filing of a criminal and/or administrative case against petitioners
because the requirements of public bidding and the auditing regulations have been faithfully complied with. For
his part, Special Prosecution Officer II, Norberto Ruiz, in his comment to the petitioners' Motion to Quash, found
that petitioners had not violated Section 3(h) of RA No. 3019 and accordingly recommended the dismissal of the
cases for want of probable cause. Too, the Solicitor General, in his Manifestation before this Court, declared that
the Sandiganbayan committed grave abuse of discretion in denying the petitioners' motion to quash.

With the view we take of this case, it would be superfluous and a sheer waste of time to still require the parties to
go through the rigors of trial when the issues can be resolved at the outset. As the facts charged do not constitute
the offense of violation of Section 3(h) of RA No. 3019, petitioners' motion to quash on that ground must be
sustained. It follows that the Sandiganbayan gravely abused its discretion in issuing the assailed resolutions
denying petitioners' motion to quash in Criminal Case Nos. 24366-69.

WHEREFORE, the petition is GRANTED. Accordingly, the December 8, 1998 resolution of the respondent
Sandiganbayan denying petitioners' Motion to Quash, as reiterated in its subsequent resolution of February 12,
1999, is SET ASIDE and Criminal Case Nos. 24366-69 are DISMISSED.

No costs.

SO ORDERED.

EN BANC

[ G.R. No. 154182, December 17, 2004 ]

EDGAR Y. TEVES AND TERESITA Z. TEVES, PETITIONERS, VS. THE SANDIGANBAYAN, RESPONDENT.

DECISION

DAVIDE JR., CJ.:

The pivotal issue in this petition is whether a public official charged with violation of Section 3(h) of Republic Act
No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, for unlawful intervention, in
his official capacity, in the issuance of a license in favor of a business enterprise in which he has a pecuniary
interest may be convicted, together with his spouse, of violation of that same provision premised on his mere
possession of such interest.

Edgar Y. Teves, former Mayor of Valencia, Negros Oriental, and his wife Teresita Z. Teves seeks to annul and set
aside the 16 July 2002 Decision[1] of the Sandiganbayan in Criminal Case No. 2337 convicting them of violation of
Section 3(h) of the Anti-Graft Law for possessing direct pecuniary interest in the Valencia Cockpit and Recreation
Center in Valencia.

The indictment reads:[2]

The undersigned Special Prosecution Officer II, Office of the Special Prosecutor, hereby accuses EDGAR Y. TEVES
and TERESITA TEVES of violation of Section 3(h) of Republic Act No. 3019, otherwise known as the Anti-Graft and
Corrupt Practices Act, committed as follows:

That on or about February 4, 1992, and sometime subsequent thereto, in Valencia, Negros Oriental, Philippines,
and within the jurisdiction of this Honorable Court, accused Edgar Y. Teves, a public officer, being then the
Municipal Mayor of Valencia, Negros Oriental, committing the crime-herein charged in relation to, while in the
performance and taking advantage of his official functions, and conspiring and confederating with his wife, herein
accused Teresita Teves, did then and there willfully, unlawfully and criminally cause the issuance of the
appropriate business permit/license to operate the Valencia Cockpit and Recreation Center in favor of one Daniel
Teves, said accused Edgar Y. Teves having a direct financial or pecuniary interest therein considering the fact that
said cockpit arena is actually owned and operated by him and accused Teresita Teves.
CONTRARY TO LAW.
Upon their arraignment on 12 May 1997, the petitioners pleaded "not guilty." Pre-trial and trial were thereafter
set.

The petitioners and the prosecution agreed on the authenticity of the prosecution's documentary evidence. Thus,
the prosecution dispensed with the testimonies of witnesses and formally offered its documentary evidence
marked as Exhibits "A" to "V."[3]

On 23 February 1998, the petitioners filed their Comment/Objections to the evidence offered by the prosecution
and moved for leave of court to file a demurrer to evidence.[4] On 29 July 1998, the Sandiganbayan admitted
Exhibits "A" to "S" of the prosecution's evidence but rejected Exhibits "T," "U," and "V."[5] It also denied petitioners'
demurrer to evidence,[6] as well as their motion for reconsideration.[7]This notwithstanding, the petitioners filed a
Manifestation that they were, nonetheless, dispensing with the presentation of witnesses because the evidence on
record are inadequate to support their conviction.

On 16 July 2002, the Sandiganbayan promulgated a decision[8] (1) convicting petitioners Edgar and Teresita Teves
of violation of Section 3(h) of the Anti-Graft Law; (2) imposing upon them an indeterminate penalty of
imprisonment of nine years and twenty-one days as minimum to twelve years as maximum; and (3) ordering the
confiscation of all their rights, interests, and participation in the assets and properties of the Valencia Cockpit and
Recreation Center in favor of the Government, as well as perpetual disqualification from public office. [9] The
conviction was anchored on the finding that the petitioners possessed pecuniary interest in the said business
enterprise on the grounds that (a) nothing on record appears that Mayor Teves divested himself of his pecuniary
interest in said cockpit; (b) as of April 1992, Teresita Teves was of record the "owner/licensee" of the cockpit; and
(c) since Mayor Teves and Teresita remained married to each other from 1983 until 1992, their property relations
as husband and wife, in the absence of evidence to the contrary, was that of the conjugal partnership of gains.
Hence, the cockpit is a conjugal property over which the petitioners have pecuniary interest. This pecuniary
interest is prohibited under Section 89(2) of R.A. No. 7160, otherwise known as the Local Government Code (LGC)
of 1991, and thus falls under the prohibited acts penalized in Section 3(h) of the Anti-Graft Law.

The Sandiganbayan, however, absolved the petitioners of the charge of causing the issuance of a business permit
or license to operate the Valencia Cockpit and Recreation Center on or about 4 February 1992 for not being well-
founded.

On 26 August 2002, the petitioners filed the instant petition for review on certiorari[10] seeking to annul and set
aside the 16 July 2002 Decision of the Sandiganbayan.

At first, we denied the petition for failure of the petitioners to sufficiently show that the Sandiganbayan committed
any reversible error in the challenged decision as to warrant the exercise by this Court of its discretionary appellate
jurisdiction.[11] But upon petitioners' motion for reconsideration,[12] we reinstated the petition.[13]

The petitioners assert that the Sandiganbayan committed serious and palpable errors in convicting them. In the
first place, the charge was for alleged unlawful intervention of Mayor Teves in his official capacity in the issuance
of a cockpit license in violation of Section 3(h) of the Anti-Graft Law. But they were convicted of having a direct
financial or pecuniary interest in the Valencia Cockpit and Recreation Center prohibited under Section 89(2) of the
LGC of 1991, which is essentially different from the offense with which they were charged. Thus, the petitioners
insist that their constitutional right to be informed of the nature and cause of the accusation against them was
transgressed because they were never apprised at any stage of the proceedings in the Sandiganbayan that they
were being charged with, and arraigned and tried for, violation of the LGC of 1991. The variance doctrine invoked
by the respondent is but a rule of procedural law that should not prevail over their constitutionally-guaranteed
right to be informed of the nature and cause of accusation against them.

Second, according to the petitioners, their alleged prohibited pecuniary interest in the Valencia Cockpit in 1992
was not proved. The Sandiganbayan presumed that since Mayor Teves was the cockpit operator and licensee in
1989, said interest continued to exist until 1992. It also presumed that the cockpit was the conjugal property of
Mayor Teves and his wife, and that their pecuniary interest thereof was direct. But under the regime of conjugal
partnership of gains, any interest thereon is at most inchoate and indirect.

Also assigned as glaring error is the conviction of Teresita Teves, who is not a public officer. In the information,
only Mayor Teves was accused of "having a direct financial or pecuniary interest in the operation of the Valencia
Cockpit and Recreation Center in Negros Oriental." His wife was merely charged as a co-conspirator of her
husband's alleged act of "while in the performance and taking advantage of his official functions, … willfully,
unlawfully and criminally caus[ing] the issuance of the appropriate business permit/license to operate" the said
cockpit arena. Teresita Teves could not be convicted because conspiracy was not established. Besides, the
Sandiganbayan had already absolved the petitioners of this offense.

On the other hand, the Sandiganbayan, through the Office of the Special Prosecutor (OSP), insists that the
uncontroverted documentary evidence proved that petitioner Edgar Teves had direct pecuniary interest over the
cockpit in question as early as 26 September 1983. That interest continued even though he transferred the
management thereof to his wife Teresita Teves in 1992, since their property relations were governed by the
conjugal partnership of gains. The existence of that prohibited interest is by itself a criminal offense under Section
89(2) of the LGC of 1991. It is necessarily included in the offense charged against the petitioners, i.e., for violation
of Section 3(h) of the Anti-Graft Law, which proscribes the possession of a direct or indirect financial or pecuniary
interest in any business, contract, or transaction in connection with which the person possessing the financial
interest intervenes in his official capacity, or in which he is prohibited by the Constitution or any law from having
any interest. The use of the conjunctive word "or" demonstrates the alternative mode or nature of the manner of
execution of the final element of the violation of the provision. Although the information may have alleged only
one of the modalities of committing the offense, the other mode is deemed included in the accusation to allow
proof thereof. There was, therefore, no violation of the constitutional right of the accused to be informed of the
nature or cause of the accusation against them in view of the variance doctrine, which finds statutory support in
Sections 4 and 5 of Rule 120 of the Rules of Court.

The petition is not totally devoid of merit.

Section 3(h) of the Anti-Graft Law provides:

Section 3. Corrupt practices of public officers. In addition to acts or omissions of public officers already penalized by
existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be
unlawful:

…
(h) Directly or indirectly having financial or pecuniary interest in any business, contract or transaction in
connection with which he intervenes or takes part in his official capacity, or in which he is prohibited by the
Constitution or by any law from having any interest.

The essential elements set out in the afore-quoted legislative definition of the crime of violation of Section 3(h) of
the Anti-Graft Law are as follows:

1. The accused is a public officer;

2. He has a direct or indirect financial or pecuniary interest in any business, contract, or transaction;

3. He either

a.
 b. intervenes or takes part in his official capacity in connection with such interest; or

c. is prohibited from having such interest by the Constitution or by any law.

There are, therefore, two modes by which a public officer who has a direct or indirect financial or pecuniary
interest in any business, contract, or transaction may violate Section 3(h) of the Anti-Graft Law. The first mode is if
in connection with his pecuniary interest in any business, contract or transaction, the public officer intervenes or
takes part in his official capacity. The second mode is when he is prohibited from having such interest by the
Constitution or any law.

We quote herein the Sandiganbayan's declaration regarding petitioners' culpability anent the first mode:

…[T]hat portion of the Information which seeks to indict the spouses Teves for his causing the issuance of a
business permit/license to operate the Valencia cockpit on or about February 4, 1992 is not well-founded.

… Mayor Edgar Teves could not have issued a permit to operate the cockpit in the year 1992 because as of
January 1, 1992 the license could be issued only by the Sangguniang Bayan. He may have issued the permit or
license in 1991 or even before that when he legally could, but that is not the charge. The charge is for acts
committed in 1992.[14] [Emphasis supplied].
The Sandiganbayan found that the charge against Mayor Teves for causing the issuance of the business permit or
license to operate the Valencia Cockpit and Recreation Center is "not well-founded." This it based, and rightly so,
on the additional finding that only the Sangguniang Bayan could have issued a permit to operate the Valencia
Cockpit in the year 1992. Indeed, under Section 447(3)[15] of the LGC of 1991, which took effect on 1 January 1992,
it is the Sangguniang Bayan that has the authority to issue a license for the establishment, operation, and
maintenance of cockpits. Unlike in the old LGC, Batas Pambansa Blg. 337, wherein the municipal mayor was the
presiding officer of the Sangguniang Bayan,[16] under the LGC of 1991, the mayor is not so anymore and is not even
a member of the Sangguniang Bayan. Hence, Mayor Teves could not have intervened or taken part in his official
capacity in the issuance of a cockpit license during the material time, as alleged in the information, because he was
not a member of the Sangguniang Bayan.[17]

A fortiori, there is no legal basis to convict Teresita Teves as a co-conspirator in the absence of a finding that Mayor
Teves himself is guilty of the offense charged. In short, the Sandiganbayan correctly absolved the petitioners of the
charge based on the first mode. And there is no need to belabor this point.

The Sandiganbayan, however, convicted the petitioners of violation of Section 3(h) of the Anti-Graft Law based on
the second mode. It reasoned that the evidence overwhelmingly evinces that Mayor Teves had a pecuniary
interest in the Valencia Cockpit, which is prohibited under Section 89(2) of the LGC of 1991.

The information accuses petitioner Edgar Teves, then Municipal Mayor of Valencia, Negros Oriental, of causing,
"while in the performance and taking advantage of his official functions, and conspiring and confederating with his
wife … the issuance of the appropriate business permit/license to operate the Valencia Cockpit and Recreation
Center in favor of one Daniel Teves." The last part of the dispositive portion of the information states that "said
accused Edgar Y. Teves having a direct financial or pecuniary interest therein considering the fact that said cockpit
arena is actually owned and operated by him and accused Teresita Teves."

A careful reading of the information reveals that the afore-quoted last part thereof is merely an allegation of the
second element of the crime, which is, that he has a direct or indirect "financial or pecuniary interest in any
business, contract or transaction." Not by any stretch of imagination can it be discerned or construed that the
afore-quoted last part of the information charges the petitioners with the second mode by which Section 3(h) of
the Anti-Graft Law may be violated. Hence, we agree with the petitioners that the charge was for unlawful
intervention in the issuance of the license to operate the Valencia Cockpit. There was no charge for possession of
pecuniary interest prohibited by law.

However, the evidence for the prosecution has established that petitioner Edgar Teves, then mayor of Valencia,
Negros Oriental,[18]owned the cockpit in question. In his sworn application for registration of cockpit filed on 26
September 1983[19] with the Philippine Gamefowl Commission, Cubao, Quezon City, as well as in his renewal
application dated 6 January 1989[20] he stated that he is the owner and manager of the said cockpit. Absent any
evidence that he divested himself of his ownership over the cockpit, his ownership thereof is rightly to be
presumed because a thing once proved to exist continues as long as is usual with things of that nature. [21] His
affidavit[22]dated 27 September 1990 declaring that effective January 1990 he "turned over the management of the
cockpit to Mrs. Teresita Z. Teves for the reason that [he] could no longer devote a full time as manager of the said
entity due to other work pressure" is not sufficient proof that he divested himself of his ownership over the
cockpit. Only the management of the cockpit was transferred to Teresita Teves effective January 1990. Being the
owner of the cockpit, his interest over it was direct.

Even if the ownership of petitioner Edgar Teves over the cockpit were transferred to his wife, still he would have a
direct interest thereon because, as correctly held by respondent Sandiganbayan, they remained married to each
other from 1983 up to 1992, and as such their property relation can be presumed to be that of conjugal
partnership of gains in the absence of evidence to the contrary. Article 160 of the Civil Code provides that all
property of the marriage is presumed to belong to the conjugal partnership unless it be proved that it pertains
exclusively to the husband or to the wife. And Section 143 of the Civil Code declares all the property of the
conjugal partnership of gains to be owned in common by the husband and wife. Hence, his interest in the Valencia
Cockpit is direct and is, therefore, prohibited under Section 89(2) of the LGC of 1991, which reads:

Section 89. Prohibited Business and Pecuniary Interest. (a) It shall be unlawful for any local government official or
employee, directly or indirectly, to:

…
(2) Hold such interests in any cockpit or other games licensed by a local government unit…. [Emphasis supplied].

The offense proved, therefore, is the second mode of violation of Section 3(h) of the Anti-Graft Law, which is
possession of a prohibited interest. But can the petitioners be convicted thereof, considering that it was not
charged in the information?

The answer is in the affirmative in view of the variance doctrine embodied in Section 4, in relation to Section 5,
Rule 120, Rules of Criminal Procedure, which both read:

Sec. 4. Judgment in case of variance between allegation and proof. When there is a variance between the offense
charged in the complaint or information and that proved, and the offense as charged is included in or necessarily
includes the offense proved, the accused shall be convicted of the offense proved which is included in the offense
charged, or of the offense charged which is included in the offense proved.

Sec. 5. When an offense includes or is included in another. An offense charged necessarily includes the offense
proved when some of the essential elements or ingredients of the former, as alleged in the complaint or
information, constitutes the latter. And an offense charged is necessarily included in the offense proved when the
essential ingredients of the former constitute or form part of those constituting the latter.
The elements of the offense charged in this case, which is unlawful intervention in the issuance of a cockpit license
in violation of Section 3(h) of the Anti-Graft Law, are
 1. The accused is a public officer;

2. He has a direct or indirect financial or pecuniary interest in any business, contract, or transaction, whether
or not prohibited by law; and

3. He intervenes or takes part in his official capacity in connection with such interest.

On the other hand, the essential ingredients of the offense proved, which is possession of prohibited interest in
violation of Section 3(h) of the Anti-Graft Law, are as follows:

1. The accused is a public officer;

2. He has a direct or indirect financial or pecuniary interest in any business, contract or transaction; and

3. He is prohibited from having such interest by the Constitution or any law.

It is clear that the essential ingredients of the offense proved constitute or form part of those constituting the
offense charged. Put differently, the first and second elements of the offense charged, as alleged in the
information, constitute the offense proved. Hence, the offense proved is necessarily included in the offense
charged, or the offense charged necessarily includes the offense proved. The variance doctrine thus finds
application to this case, thereby warranting the conviction of petitioner Edgar Teves for the offense proved.

The next question we have to grapple with is under what law should petitioner Edgar Teves be punished. It must
be observed that Section 3(h) of the Anti-Graft Law is a general provision, it being applicable to all prohibited
interests; while Section 89(2) of the LGC of 1991 is a special provision, as it specifically treats of interest in a
cockpit. Notably, the two statutes provide for different penalties. The Anti-Graft Law, particularly Section 9,
provides as follows:

SEC. 9. Penalties for violations. (a) Any public official or private person committing any of the unlawful acts or
omissions enumerated in Sections 3, 4, 5, and 6 of this Act shall be punished by imprisonment of not less than six
years and one month nor more than fifteen years, perpetual disqualification from public office, and confiscation or
forfeiture in favor of the Government of any prohibited interest….
On the other hand, Section 514 of the LGC of 1991 prescribes a lighter penalty; thus:

SECTION 514. Engaging in Prohibited Business Transactions or Possessing Illegal Pecuniary Interest. Any local
official and any person or persons dealing with him who violate the prohibitions provided in Section 89 of Book I
hereof shall be punished with imprisonment for six months and one day to six years, or a fine of not less than
Three thousand pesos (P3,000.00) nor more than Ten Thousand Pesos (P10,000.00), or both such imprisonment
and fine at the discretion of the court.
It is a rule of statutory construction that where one statute deals with a subject in general terms, and another
deals with a part of the same subject in a more detailed way, the two should be harmonized if possible; but if there
is any conflict, the latter shall prevail regardless of whether it was passed prior to the general statute. [23] Or where
two statutes are of contrary tenor or of different dates but are of equal theoretical application to a particular case,
the one designed therefor specially should prevail over the other. [24]

Conformably with these rules, the LGC of 1991, which specifically prohibits local officials from possessing pecuniary
interest in a cockpit licensed by the local government unit and which, in itself, prescribes the punishment for
violation thereof, is paramount to the Anti-Graft Law, which penalizes possession of prohibited interest in a
general manner. Moreover, the latter took effect on 17 August 1960, while the former became effective on 1
January 1991. Being the earlier statute, the Anti-Graft Law has to yield to the LGC of 1991, which is the later
expression of legislative will.[25]
In the imposition on petitioner Edgar Teves of the penalty provided in the LGC of 1991, we take judicial notice of
the fact that under the old LGC, mere possession of pecuniary interest in a cockpit was not among the prohibitions
enumerated in Section 41[26] thereof. Such possession became unlawful or prohibited only upon the advent of the
LGC of 1991, which took effect on 1 January 1992. Petitioner Edgar Teves stands charged with an offense in
connection with his prohibited interest committed on or about 4 February 1992, shortly after the maiden
appearance of the prohibition. Presumably, he was not yet very much aware of the prohibition. Although
ignorance thereof would not excuse him from criminal liability, such would justify the imposition of the lighter
penalty of a fine of P10,000 under Section 514 of the LGC of 1991.

Petitioner Teresita Teves must, however, be acquitted. The charge against her is conspiracy in causing "the
issuance of the appropriate business permit/license to operate the Valencia Cockpit and Recreation Center." For
this charge, she was acquitted. But as discussed earlier, that charge also includes conspiracy in the possession of
prohibited interest.

Conspiracy must be established separately from the crime itself and must meet the same degree of proof, i.e.,
proof beyond reasonable doubt. While conspiracy need not be established by direct evidence, for it may be
inferred from the conduct of the accused before, during, and after the commission of the crime, all taken together,
the evidence must reasonably be strong enough to show community of criminal design.[27]

Certainly, there is no conspiracy in just being married to an erring spouse. [28] For a spouse or any person to be a
party to a conspiracy as to be liable for the acts of the others, it is essential that there be intentional participation
in the transaction with a view to the furtherance of the common design. Except when he is the mastermind in a
conspiracy, it is necessary that a conspirator should have performed some overt act as a direct or indirect
contribution in the execution of the crime planned to be committed. The overt act must consist of active
participation in the actual commission of the crime itself or of moral assistance to his co-conspirators.[29]

Section 4(b) of the Anti-Graft Law, the provision which applies to private individuals, states:

SEC. 4. Prohibitions on private individuals. …

(b) It shall be unlawful for any person knowingly to induce or cause any public official to commit any of the
offenses defined in Section 3 hereof.
We find no sufficient evidence that petitioner Teresita Teves conspired with, or knowingly induced or caused, her
husband to commit the second mode of violation of Section 3(h) of the Anti-Graft Law.

As early as 1983, Edgar Teves was already the owner of the Valencia Cockpit. Since then until 31 December 1991,
possession by a local official of pecuniary interest in a cockpit was not yet prohibited. It was before the effectivity
of the LGC of 1991, or on January 1990, that he transferred the management of the cockpit to his wife Teresita. In
accordance therewith it was Teresita who thereafter applied for the renewal of the cockpit registration. Thus, in
her sworn applications for renewal of the registration of the cockpit in question dated 28 January 1990 [30] and 18
February 1991,[31] she stated that she is the Owner/Licensee and Operator/Manager of the said cockpit. In her
renewal application dated 6 January 1992,[32] she referred to herself as the Owner/Licensee of the cockpit.
Likewise in the separate Lists of Duly Licensed Personnel for Calendar Years 1991[33] and 1992,[34] which she
submitted on 22 February 1991 and 17 February 1992, respectively, in compliance with the requirement of the
Philippine Gamefowl Commission for the renewal of the cockpit registration, she signed her name as
Operator/Licensee.

The acts of petitioner Teresita Teves can hardly pass as acts in furtherance of a conspiracy to commit the violation
of the Anti-Graft Law that would render her equally liable as her husband. If ever she did those acts, it was because
she herself was an owner of the cockpit. Not being a public official, she was not prohibited from holding an interest
in cockpit. Prudence, however, dictates that she too should have divested herself of her ownership over the
cockpit upon the effectivity of the LGC of 1991; otherwise, as stated earlier, considering her property relation with
her husband, her ownership would result in vesting direct prohibited interest upon her husband.

In criminal cases, conviction must rest on a moral certainty of guilt.[35] The burden of proof is upon the prosecution
to establish each and every element of the crime and that the accused is either responsible for its commission or
has conspired with the malefactor. Since no conspiracy was proved, the acquittal of petitioner Teresita Teves is,
therefore, in order.

WHEREFORE, premises considered, the 16 July 2002 Decision of the Sandiganbayan, First Division, in Criminal Case
No. 2337 is hereby MODIFIED in that (1) EDGAR Y. TEVES is convicted of violation of Section 3(h) of Republic Act
No. 3019, or the Anti-Graft and Corrupt Practices Act, for possession of pecuniary or financial interest in a cockpit,
which is prohibited under Section 89(2) of the Local Government Code of 1991, and is sentenced to pay a fine of
P10,000; and (2) TERESITA Z. TEVES is hereby ACQUITTED of such offense.

Costs de oficio.

SO ORDERED.

EN BANC

[ G.R. No. 148560, November 19, 2001 ]

JOSEPH EJERCITO ESTRADA, PETITIONER, VS. SANDIGANBAYAN (THIRD DIVISION) AND PEOPLE OF THE
PHILIPPINES, RESPONDENTS.

DECISION

BELLOSILLO, J.:

JOHN STUART MILL, in his essay On Liberty, unleashes the full fury of his pen in defense of the rights of the
individual from the vast powers of the State and the inroads of societal pressure. But even as he draws a
sacrosanct line demarcating the limits on individuality beyond which the State cannot tread - asserting that
"individual spontaneity" must be allowed to flourish with very little regard to social interference - he veritably
acknowledges that the exercise of rights and liberties is imbued with a civic obligation, which society is justified in
enforcing at all cost, against those who would endeavor to withhold fulfillment. Thus he says -

The sole end for which mankind is warranted, individually or collectively, in interfering with the liberty of action of
any of their number, is self-protection. The only purpose for which power can be rightfully exercised over any
member of a civilized community, against his will, is to prevent harm to others.
Parallel to individual liberty is the natural and illimitable right of the State to self-preservation. With the end of
maintaining the integrity and cohesiveness of the body politic, it behooves the State to formulate a system of laws
that would compel obeisance to its collective wisdom and inflict punishment for non-observance.

The movement from Mill's individual liberalism to unsystematic collectivism wrought changes in the social order,
carrying with it a new formulation of fundamental rights and duties more attuned to the imperatives of
contemporary socio-political ideologies. In the process, the web of rights and State impositions became tangled
and obscured, enmeshed in threads of multiple shades and colors, the skein irregular and broken. Antagonism,
often outright collision, between the law as the expression of the will of the State, and the zealous attempts by its
members to preserve their individuality and dignity, inevitably followed. It is when individual rights are pitted
against State authority that judicial conscience is put to its severest test.
Petitioner Joseph Ejercito Estrada, the highest-ranking official to be prosecuted under RA 7080 (An Act Defining
and Penalizing the Crime of Plunder),[1] as amended by RA 7659,[2] wishes to impress upon us that the assailed law
is so defectively fashioned that it crosses that thin but distinct line which divides the valid from the constitutionally
infirm. He therefore makes a stringent call for this Court to subject the Plunder Law to the crucible of
constitutionality mainly because, according to him, (a) it suffers from the vice of vagueness; (b) it dispenses with
the "reasonable doubt" standard in criminal prosecutions; and, (c) it abolishes the element of mens rea in crimes
already punishable under The Revised Penal Code, all of which are purportedly clear violations of the fundamental
rights of the accused to due process and to be informed of the nature and cause of the accusation against him.

Specifically, the provisions of the Plunder Law claimed by petitioner to have transgressed constitutional boundaries
are Secs. 1, par. (d), 2 and 4 which are reproduced hereunder:

Section 1. x x x x (d) "Ill-gotten wealth" means any asset, property, business, enterprise or material possession of
any person within the purview of Section Two (2) hereof, acquired by him directly or indirectly through dummies,
nominees, agents, subordinates and/or business associates by any combination or series of the following means or
similar schemes:

(1) Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury;

(2) By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any other form of
pecuniary benefit from any person and/or entity in connection with any government contract or project or by
reason of the office or position of the public office concerned;

(3) By the illegal or fraudulent conveyance or disposition of assets belonging to the National Government or any of
its subdivisions, agencies or instrumentalities, or government owned or controlled corporations and their
subsidiaries;

(4) By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest
or participation including the promise of future employment in any business enterprise or undertaking;

(5) By establishing agricultural, industrial or commercial monopolies or other combinations and/or implementation
of decrees and orders intended to benefit particular persons or special interests; or

(6) By taking advantage of official position, authority, relationship, connection or influence to unjustly enrich
himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of
the Philippines.
Section 2. Definition of the Crime of Plunder, Penalties. - Any public officer who, by himself or in connivance with
members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons,
amasses, accumulates or acquires ill-gotten wealth through a combination or series of overt or criminal acts as
described in Section 1 (d) hereof, in the aggregate amount or total value of at least fifty million pesos
(P50,000,000.00) shall be guilty of the crime of plunder and shall be punished by reclusion perpetua to death. Any
person who participated with the said public officer in the commission of an offense contributing to the crime of
plunder shall likewise be punished for such offense. In the imposition of penalties, the degree of participation and
the attendance of mitigating and extenuating circumstances as provided by the Revised Penal Code shall be
considered by the court. The court shall declare any and all ill-gotten wealth and their interests and other incomes
and assets including the properties and shares of stocks derived from the deposit or investment thereof forfeited in
favor of the State (underscoring supplied).

Section 4. Rule of Evidence. - For purposes of establishing the crime of plunder, it shall not be necessary to
prove each and every criminal act done by the accused in furtherance of the scheme or conspiracy to amass,
accumulate or acquire ill-gotten wealth, it being sufficient to establish beyond reasonable doubt a pattern of
overt or criminal acts indicative of the overall unlawful scheme or conspiracy (underscoring supplied).
On 4 April 2001 the Office of the Ombudsman filed before the Sandiganbayan eight (8) separate Informations,
docketed as: (a) Crim. Case No. 26558, for violation of RA 7080, as amended by RA 7659; (b) Crim. Cases Nos.
26559 to 26562, inclusive, for violation of Secs. 3, par. (a), 3, par. (a), 3, par. (e) and 3, par. (e), of RA 3019 (Anti-
Graft and Corrupt Practices Act), respectively; (c) Crim. Case No. 26563, for violation of Sec. 7, par. (d), of RA 6713
(The Code of Conduct and Ethical Standards for Public Officials and Employees); (d) Crim. Case No. 26564, for
Perjury (Art. 183 of The Revised Penal Code); and, (e) Crim. Case No. 26565, for Illegal Use Of An Alias (CA No. 142,
as amended by RA 6085).

On 11 April 2001 petitioner filed an Omnibus Motion for the remand of the case to the Ombudsman for
preliminary investigation with respect to specification "d" of the charges in the Information in Crim. Case No.
26558; and, for reconsideration/reinvestigation of the offenses under specifications "a," "b," and "c" to give the
accused an opportunity to file counter-affidavits and other documents necessary to prove lack of probable cause.
Noticeably, the grounds raised were only lack of preliminary investigation, reconsideration/reinvestigation of
offenses, and opportunity to prove lack of probable cause. The purported ambiguity of the charges and the
vagueness of the law under which they are charged were never raised in that Omnibus Motion thus indicating the
explicitness and comprehensibility of the Plunder Law.

On 25 April 2001 the Sandiganbayan, Third Division, issued a Resolution in Crim. Case No. 26558 finding that "a
probable cause for the offense of PLUNDER exists to justify the issuance of warrants for the arrest of the accused."
On 25 June 2001 petitioner's motion for reconsideration was denied by the Sandiganbayan.

On 14 June 2001 petitioner moved to quash the Information in Crim. Case No. 26558 on the ground that the facts
alleged therein did not constitute an indictable offense since the law on which it was based was unconstitutional
for vagueness, and that the Amended Information for Plunder charged more than one (1) offense. On 21 June
2001 the Government filed its Opposition to the Motion to Quash, and five (5) days later or on 26 June 2001
petitioner submitted his Reply to the Opposition. On 9 July 2001 the Sandiganbayan denied petitioner's Motion to
Quash.

As concisely delineated by this Court during the oral arguments on 18 September 2001, the issues for resolution in
the instant petition for certiorari are: (a) The Plunder Law is unconstitutional for being vague; (b) The Plunder Law
requires less evidence for proving the predicate crimes of plunder and therefore violates the rights of the accused
to due process; and, (c) Whether Plunder as defined in RA 7080 is a malum prohibitum, and if so, whether it is
within the power of Congress to so classify it.

Preliminarily, the whole gamut of legal concepts pertaining to the validity of legislation is predicated on the basic
principle that a legislative measure is presumed to be in harmony with the Constitution. [3] Courts invariably train
their sights on this fundamental rule whenever a legislative act is under a constitutional attack, for it is the
postulate of constitutional adjudication. This strong predilection for constitutionality takes its bearings on the idea
that it is forbidden for one branch of the government to encroach upon the duties and powers of another. Thus it
has been said that the presumption is based on the deference the judicial branch accords to its coordinate branch -
the legislature.

If there is any reasonable basis upon which the legislation may firmly rest, the courts must assume that the
legislature is ever conscious of the borders and edges of its plenary powers, and has passed the law with full
knowledge of the facts and for the purpose of promoting what is right and advancing the welfare of the majority.
Hence in determining whether the acts of the legislature are in tune with the fundamental law, courts should
proceed with judicial restraint and act with caution and forbearance. Every intendment of the law must be
adjudged by the courts in favor of its constitutionality, invalidity being a measure of last resort. In construing
therefore the provisions of a statute, courts must first ascertain whether an interpretation is fairly possible to
sidestep the question of constitutionality.

In La Union Credit Cooperative, Inc. v. Yaranon [4] we held that as long as there is some basis for the decision of the
court, the constitutionality of the challenged law will not be touched and the case will be decided on other
available grounds. Yet the force of the presumption is not sufficient to catapult a fundamentally deficient law into
the safe environs of constitutionality. Of course, where the law clearly and palpably transgresses the hallowed
domain of the organic law, it must be struck down on sight lest the positive commands of the fundamental law be
unduly eroded.

Verily, the onerous task of rebutting the presumption weighs heavily on the party challenging the validity of the
statute. He must demonstrate beyond any tinge of doubt that there is indeed an infringement of the constitution,
for absent such a showing, there can be no finding of unconstitutionality. A doubt, even if well-founded, will hardly
suffice. As tersely put by Justice Malcolm, "To doubt is to sustain."[5] And petitioner has miserably failed in the
instant case to discharge his burden and overcome the presumption of constitutionality of the Plunder Law.

As it is written, the Plunder Law contains ascertainable standards and well-defined parameters which would
enable the accused to determine the nature of his violation. Section 2 is sufficiently explicit in its description of the
acts, conduct and conditions required or forbidden, and prescribes the elements of the crime with reasonable
certainty and particularity. Thus -

1. That the offender is a public officer who acts by himself or in connivance with members of his family,
relatives by affinity or consanguinity, business associates, subordinates or other persons;

2. That he amassed, accumulated or acquired ill-gotten wealth through a combination or series of the
following overt or criminal acts: (a) through misappropriation, conversion, misuse, or malversation of
public funds or raids on the public treasury; (b) by receiving, directly or indirectly, any commission, gift,
share, percentage, kickback or any other form of pecuniary benefits from any person and/or entity in
connection with any government contract or project or by reason of the office or position of the public
officer; (c) by the illegal or fraudulent conveyance or disposition of assets belonging to the National
Government or any of its subdivisions, agencies or instrumentalities of Government owned or controlled
corporations or their subsidiaries; (d) by obtaining, receiving or accepting directly or indirectly any shares
of stock, equity or any other form of interest or participation including the promise of future employment
in any business enterprise or undertaking; (e) by establishing agricultural, industrial or commercial
monopolies or other combinations and/or implementation of decrees and orders intended to benefit
particular persons or special interests; or (f) by taking advantage of official position, authority,
relationship, connection or influence to unjustly enrich himself or themselves at the expense and to the
damage and prejudice of the Filipino people and the Republic of the Philippines; and,

3. That the aggregate amount or total value of the ill-gotten wealth amassed, accumulated or acquired is at
least P50,000,000.00.

As long as the law affords some comprehensible guide or rule that would inform those who are subject to it what
conduct would render them liable to its penalties, its validity will be sustained. It must sufficiently guide the judge
in its application; the counsel, in defending one charged with its violation; and more importantly, the accused, in
identifying the realm of the proscribed conduct. Indeed, it can be understood with little difficulty that what the
assailed statute punishes is the act of a public officer in amassing or accumulating ill-gotten wealth of at least
P50,000,000.00 through a series or combination of acts enumerated in Sec. 1, par. (d), of the Plunder Law.

In fact, the amended Information itself closely tracks the language of the law, indicating with reasonable certainty
the various elements of the offense which petitioner is alleged to have committed:

"The undersigned Ombudsman, Prosecutor and OIC-Director, EPIB, Office of the Ombudsman, hereby accuses
former PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, Joseph Ejercito Estrada, a.k.a. 'ASIONG SALONGA' and
a.k.a. 'JOSE VELARDE,'together with Jose 'Jinggoy' Estrada, Charlie 'Atong' Ang, Edward Serapio, Yolanda T.
Ricaforte, Alma Alfaro, JOHN DOE a.k.a. Eleuterio Tan OR Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia
Rajas, and John DOES & Jane Does, of the crime of Plunder, defined and penalized under R.A. No. 7080, as
amended by Sec. 12 of R.A. No. 7659, committed as follows:

That during the period from June, 1998 to January 2001, in the Philippines, and within the jurisdiction of this
Honorable Court, accused Joseph Ejercito Estrada, THEN A PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, by
himself AND/OR inCONNIVANCE/CONSPIRACY with his co-accused, WHO ARE MEMBERS OF HIS FAMILY,
RELATIVES BY AFFINITY OR CONSANGUINITY, BUSINESS ASSOCIATES, SUBORDINATES AND/OR OTHER PERSONS,
BY TAKING UNDUE ADVANTAGE OF HIS OFFICIAL POSITION, AUTHORITY, RELATIONSHIP, CONNECTION, OR
INFLUENCE, did then and there willfully, unlawfully and criminally amass, accumulate and acquire BY HIMSELF,
DIRECTLY OR INDIRECTLY, ill-gotten wealth in the aggregate amount or TOTAL VALUE of FOUR BILLION NINETY
SEVEN MILLION EIGHT HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN
CENTAVOS (P4,097,804,173.17), more or less, THEREBY UNJUSTLY ENRICHING HIMSELF OR THEMSELVES AT THE
EXPENSE AND TO THE DAMAGE OF THE FILIPINO PEOPLE AND THE REPUBLIC OF THE PHILIPPINES, through ANY
OR A combination OR A series of overt OR criminal acts, OR SIMILAR SCHEMES OR MEANS, described as follows:

(a) by receiving OR collecting, directly or indirectly, on SEVERAL INSTANCES, MONEY IN THE AGGREGATE
AMOUNT OF FIVE HUNDRED FORTY-FIVE MILLION PESOS (P545,000,000.00), MORE OR LESS, FROM ILLEGAL
GAMBLING IN THE FORM OF GIFT, SHARE, PERCENTAGE, KICKBACK OR ANY FORM OF PECUNIARY BENEFIT, BY
HIMSELF AND/OR in connection with co-accused CHARLIE 'ATONG' ANG, Jose 'Jinggoy' Estrada, Yolanda T.
Ricaforte, Edward Serapio, AND JOHN DOES AND JANE DOES, in consideration OF TOLERATION OR PROTECTION
OF ILLEGAL GAMBLING;

(b) by DIVERTING, RECEIVING, misappropriating, converting OR misusing DIRECTLY OR INDIRECTLY, for HIS OR
THEIR PERSONAL gain and benefit, public funds in the amount of ONE HUNDRED THIRTY MILLION PESOS
(P130,000,000.00), more or less, representing a portion of the TWO HUNDRED MILLION PESOS
(P200,000,000.00)tobacco excise tax share allocated for the province of Ilocos Sur under R.A. No. 7171, by himself
and/or in connivance with co-accused Charlie 'Atong' Ang, Alma Alfaro, JOHN DOE a.k.a. Eleuterio Ramos Tan or
Mr. Uy, Jane Doe a.k.a. Delia Rajas, AND OTHER JOHN DOES & JANE DOES; (italic supplied).

(c) by directing, ordering and compelling, FOR HIS PERSONAL GAIN AND BENEFIT, the Government Service
Insurance System (GSIS) TO PURCHASE 351,878,000 SHARES OF STOCKS, MORE OR LESS, and the Social Security
System (SSS), 329,855,000 SHARES OF STOCK, MORE OR LESS, OF THE BELLE CORPORATION IN THE AMOUNT OF
MORE OR LESS ONE BILLION ONE HUNDRED TWO MILLION NINE HUNDRED SIXTY FIVE THOUSAND SIX HUNDRED
SEVEN PESOS AND FIFTY CENTAVOS (P1,102,965,607.50) AND MORE OR LESS SEVEN HUNDRED FORTY FOUR
MILLION SIX HUNDRED TWELVE THOUSAND AND FOUR HUNDRED FIFTY PESOS (P744,612,450.00),
RESPECTIVELY, OR A TOTAL OF MORE OR LESS ONE BILLION EIGHT HUNDRED FORTY SEVEN MILLION FIVE
HUNDRED SEVENTY EIGHT THOUSAND FIFTY SEVEN PESOS AND FIFTY CENTAVOS (P1,847,578,057.50); AND BY
COLLECTING OR RECEIVING, DIRECTLY OR INDIRECTLY, BY HIMSELF AND/OR IN CONNIVANCE WITH JOHN DOES
AND JANE DOES, COMMISSIONS OR PERCENTAGES BY REASON OF SAID PURCHASES OF SHARES OF STOCK IN
THE AMOUNT OF ONE HUNDRED EIGHTY NINE MILLION SEVEN HUNDRED THOUSAND PESOS (P189,700,000.00)
MORE OR LESS, FROM THE BELLE CORPORATION WHICH BECAME PART OF THE DEPOSIT IN THE EQUITABLE-PCI
BANK UNDER THE ACCOUNT NAME 'JOSE VELARDE;'

(d) by unjustly enriching himself FROM COMMISSIONS, GIFTS, SHARES, PERCENTAGES, KICKBACKS, OR ANY
FORM OF PECUNIARY BENEFITS, IN CONNIVANCE WITH JOHN DOES AND JANE DOES, in the amount of MORE OR
LESS THREE BILLION TWO HUNDRED THIRTY THREE MILLION ONE HUNDRED FOUR THOUSAND ONE HUNDRED
SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS (P3,233,104,173.17) AND DEPOSITING THE SAME UNDER HIS
ACCOUNT NAME 'JOSE VELARDE' AT THE EQUITABLE-PCI BANK."
We discern nothing in the foregoing that is vague or ambiguous - as there is obviously none - that will confuse
petitioner in his defense. Although subject to proof, these factual assertions clearly show that the elements of the
crime are easily understood and provide adequate contrast between the innocent and the prohibited acts. Upon
such unequivocal assertions, petitioner is completely informed of the accusations against him as to enable him to
prepare for an intelligent defense.
Petitioner, however, bewails the failure of the law to provide for the statutory definition of the terms
"combination" and "series" in the key phrase "a combination or series of overt or criminal acts" found in Sec. 1,
par. (d), and Sec. 2, and the word "pattern" in Sec. 4. These omissions, according to petitioner, render the Plunder
Law unconstitutional for being impermissibly vague and overbroad and deny him the right to be informed of the
nature and cause of the accusation against him, hence, violative of his fundamental right to due process.

The rationalization seems to us to be pure sophistry. A statute is not rendered uncertain and void merely because
general terms are used therein, or because of the employment of terms without defining them;[6] much less do we
have to define every word we use. Besides, there is no positive constitutional or statutory command requiring the
legislature to define each and every word in an enactment. Congress is not restricted in the form of expression of
its will, and its inability to so define the words employed in a statute will not necessarily result in the vagueness or
ambiguity of the law so long as the legislative will is clear, or at least, can be gathered from the whole act, which is
distinctly expressed in the Plunder Law.

Moreover, it is a well-settled principle of legal hermeneutics that words of a statute will be interpreted in their
natural, plain and ordinary acceptation and signification, [7] unless it is evident that the legislature intended a
technical or special legal meaning to those words.[8]The intention of the lawmakers - who are, ordinarily, untrained
philologists and lexicographers - to use statutory phraseology in such a manner is always presumed. Thus,
Webster's New Collegiate Dictionary contains the following commonly accepted definition of the words
"combination" and "series:"

Combination - the result or product of combining; the act or process of combining. To combine is to bring into such
close relationship as to obscure individual characters.

Series - a number of things or events of the same class coming one after another in spatial and temporal
succession.
That Congress intended the words "combination" and "series" to be understood in their popular meanings is
pristinely evident from the legislative deliberations on the bill which eventually became RA 7080 or the Plunder
Law:

DELIBERATIONS OF THE BICAMERAL COMMITTEE ON JUSTICE, 7 May 1991

REP. ISIDRO: I am just intrigued again by our definition of plunder. We say THROUGH A COMBINATION OR SERIES
OF OVERT OR CRIMINAL ACTS AS MENTIONED IN SECTION ONE HEREOF. Now when we say combination, we
actually mean to say, if there are two or more means, we mean to say that number one and two or number one
and something else are included, how about a series of the same act? For example, through misappropriation,
conversion, misuse, will these be included also?

REP. GARCIA: Yeah, because we say a series.

REP. ISIDRO: Series.

REP. GARCIA: Yeah, we include series.

REP. ISIDRO: But we say we begin with a combination.

REP. GARCIA: Yes.

REP. ISIDRO: When we say combination, it seems that -

REP. GARCIA: Two.

REP. ISIDRO: Not only two but we seem to mean that two of the enumerated means not twice of one enumeration.

REP. GARCIA: No, no, not twice.

REP. ISIDRO: Not twice?

REP. GARCIA: Yes. Combination is not twice - but combination, two acts.

REP. ISIDRO: So in other words, that's it. When we say combination, we mean, two different acts. It cannot be a
repetition of the same act.

REP. GARCIA: That be referred to series, yeah.

REP. ISIDRO: No, no. Supposing one act is repeated, so there are two.

REP. GARCIA: A series.

REP. ISIDRO: That's not series. Its a combination. Because when we say combination or series, we seem to say that
two or more, di ba?

REP. GARCIA: Yes, this distinguishes it really from ordinary crimes. That is why, I said, that is a very good suggestion
because if it is only one act, it may fall under ordinary crime but we have here a combination or series of overt or
criminal acts. So x x x x

REP. GARCIA: Series. One after the other eh di....

SEN. TANADA: So that would fall under the term "series?"

REP. GARCIA: Series, oo.

REP. ISIDRO: Now, if it is a combination, ano, two misappropriations....

REP. GARCIA: Its not... Two misappropriations will not be combination. Series.

REP. ISIDRO: So, it is not a combination?

REP. GARCIA: Yes.

REP. ISIDRO: When you say combination, two different?

REP. GARCIA: Yes.

SEN. TANADA: Two different.

REP. ISIDRO: Two different acts.

REP. GARCIA: For example, ha...

REP. ISIDRO: Now a series, meaning, repetition...

DELIBERATIONS ON SENATE BILL NO. 733, 6 June 1989

SENATOR MACEDA: In line with our interpellations that sometimes "one" or maybe even "two" acts may already
result in such a big amount, on line 25, would the Sponsor consider deleting the words "a series of overt or," to
read, therefore: "or conspiracy COMMITTED by criminal acts such as." Remove the idea of necessitating "a series."
Anyway, the criminal acts are in the plural.

SENATOR TANADA: That would mean a combination of two or more of the acts mentioned in this.

THE PRESIDENT: Probably two or more would be....

SENATOR MACEDA: Yes, because "a series" implies several or many; two or more.

SENATOR TANADA: Accepted, Mr. President x x x x

THE PRESIDENT: If there is only one, then he has to be prosecuted under the particular crime. But when we say
"acts of plunder" there should be, at least, two or more.

SENATOR ROMULO: In other words, that is already covered by existing laws, Mr. President.
Thus when the Plunder Law speaks of "combination," it is referring to at least two (2) acts falling under different
categories of enumeration provided in Sec. 1, par. (d), e.g., raids on the public treasury in Sec. 1, par. (d), subpar.
(1), and fraudulent conveyance of assets belonging to the National Government under Sec. 1, par. (d), subpar. (3).

On the other hand, to constitute a series" there must be two (2) or more overt or criminal acts falling under the
same category of enumeration found in Sec. 1, par. (d), say, misappropriation, malversation and raids on the public
treasury, all of which fall under Sec. 1, par. (d), subpar. (1). Verily, had the legislature intended a technical or
distinctive meaning for "combination" and "series," it would have taken greater pains in specifically providing for it
in the law.

As for "pattern," we agree with the observations of the Sandiganbayan [9] that this term is sufficiently defined in
Sec. 4, in relation to Sec. 1, par. (d), and Sec. 2 -

x x x x under Sec. 1 (d) of the law, a 'pattern' consists of at least a combination or series of overt or criminal acts
enumerated in subsections (1) to (6) of Sec. 1 (d). Secondly, pursuant to Sec. 2 of the law, the pattern of overt or
criminal acts is directed towards a common purpose or goal which is to enable the public officer to amass,
accumulate or acquire ill-gotten wealth. And thirdly, there must either be an 'overall unlawful scheme' or
'conspiracy' to achieve said common goal. As commonly understood, the term 'overall unlawful scheme' indicates a
'general plan of action or method' which the principal accused and public officer and others conniving with him
follow to achieve the aforesaid common goal. In the alternative, if there is no such overall scheme or where the
schemes or methods used by multiple accused vary, the overt or criminal acts must form part of a conspiracy to
attain a common goal.
Hence, it cannot plausibly be contended that the law does not give a fair warning and sufficient notice of what it
seeks to penalize. Under the circumstances, petitioner's reliance on the "void-for-vagueness" doctrine is manifestly
misplaced. The doctrine has been formulated in various ways, but is most commonly stated to the effect that a
statute establishing a criminal offense must define the offense with sufficient definiteness that persons of ordinary
intelligence can understand what conduct is prohibited by the statute. It can only be invoked against that specie of
legislation that is utterly vague on its face, i.e., that which cannot be clarified either by a saving clause or by
construction.

A statute or act may be said to be vague when it lacks comprehensible standards that men of common intelligence
must necessarily guess at its meaning and differ in its application. In such instance, the statute is repugnant to the
Constitution in two (2) respects - it violates due process for failure to accord persons, especially the parties
targeted by it, fair notice of what conduct to avoid; and, it leaves law enforcers unbridled discretion in carrying out
its provisions and becomes an arbitrary flexing of the Government muscle.[10] But the doctrine does not apply as
against legislations that are merely couched in imprecise language but which nonetheless specify a standard
though defectively phrased; or to those that are apparently ambiguous yet fairly applicable to certain types of
activities. The first may be "saved" by proper construction, while no challenge may be mounted as against the
second whenever directed against such activities.[11] With more reason, the doctrine cannot be invoked where the
assailed statute is clear and free from ambiguity, as in this case.

The test in determining whether a criminal statute is void for uncertainty is whether the language conveys a
sufficiently definite warning as to the proscribed conduct when measured by common understanding and
practice.[12] It must be stressed, however, that the "vagueness" doctrine merely requires a reasonable degree of
certainty for the statute to be upheld - not absolute precision or mathematical exactitude, as petitioner seems to
suggest. Flexibility, rather than meticulous specificity, is permissible as long as the metes and bounds of the statute
are clearly delineated. An act will not be held invalid merely because it might have been more explicit in its
wordings or detailed in its provisions, especially where, because of the nature of the act, it would be impossible to
provide all the details in advance as in all other statutes.

Moreover, we agree with, hence we adopt, the observations of Mr. Justice Vicente V. Mendoza during the
deliberations of the Court that the allegations that the Plunder Law is vague and overbroad do not justify a facial
review of its validity -

The void-for-vagueness doctrine states that "a statute which either forbids or requires the doing of an act in terms
so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application,
violates the first essential of due process of law."[13] The overbreadth doctrine, on the other hand, decrees that "a
governmental purpose may not be achieved by means which sweep unnecessarily broadly and thereby invade the
area of protected freedoms."[14]

A facial challenge is allowed to be made to a vague statute and to one which is overbroad because of possible
"chilling effect" upon protected speech. The theory is that "[w]hen statutes regulate or proscribe speech and no
readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution, the
transcendent value to all society of constitutionally protected expression is deemed to justify allowing attacks on
overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct
could not be regulated by a statute drawn with narrow specificity."[15] The possible harm to society in permitting
some unprotected speech to go unpunished is outweighed by the possibility that the protected speech of others
may be deterred and perceived grievances left to fester because of possible inhibitory effects of overly broad
statutes.

This rationale does not apply to penal statutes. Criminal statutes have general in terrorem effect resulting from
their very existence, and, if facial challenge is allowed for this reason alone, the State may well be prevented from
enacting laws against socially harmful conduct. In the area of criminal law, the law cannot take chances as in the
area of free speech.

The overbreadth and vagueness doctrines then have special application only to free speech cases. They are inapt
for testing the validity of penal statutes. As the U.S. Supreme Court put it, in an opinion by Chief Justice Rehnquist,
"we have not recognized an 'overbreadth' doctrine outside the limited context of the First
Amendment."[16] In Broadrick v. Oklahoma,[17] the Court ruled that "claims of facial overbreadth have been
entertained in cases involving statutes which, by their terms, seek to regulate only spoken words" and, again, that
"overbreadth claims, if entertained at all, have been curtailed when invoked against ordinary criminal laws that are
sought to be applied to protected conduct." For this reason, it has been held that "a facial challenge to a legislative
act is the most difficult challenge to mount successfully, since the challenger must establish that no set of
circumstances exists under which the Act would be valid."[18] As for the vagueness doctrine, it is said that a litigant
may challenge a statute on its face only if it is vague in all its possible applications. "A plaintiff who engages in
some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of
others."[19]

In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed for testing "on
their faces" statutes in free speech cases or, as they are called in American law, First Amendment cases. They
cannot be made to do service when what is involved is a criminal statute. With respect to such statute, the
established rule is that "one to whom application of a statute is constitutional will not be heard to attack the
statute on the ground that impliedly it might also be taken as applying to other persons or other situations in
which its application might be unconstitutional."[20] As has been pointed out, "vagueness challenges in the First
Amendment context, like overbreadth challenges typically produce facial invalidation, while statutes found vague
as a matter of due process typically are invalidated [only] 'as applied' to a particular defendant." [21] Consequently,
there is no basis for petitioner's claim that this Court review the Anti-Plunder Law on its face and in its entirety.

Indeed, "on its face" invalidation of statutes results in striking them down entirely on the ground that they might
be applied to parties not before the Court whose activities are constitutionally protected. [22] It constitutes a
departure from the case and controversy requirement of the Constitution and permits decisions to be made
without concrete factual settings and in sterile abstract contexts.[23] But, as the U.S. Supreme Court pointed out
in Younger v. Harris[24]

[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these
deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the judiciary. The
combination of the relative remoteness of the controversy, the impact on the legislative process of the relief
sought, and above all the speculative and amorphous nature of the required line-by-line analysis of detailed
statutes, . . . ordinarily results in a kind of case that is wholly unsatisfactory for deciding constitutional questions,
whichever way they might be decided.
For these reasons, "on its face" invalidation of statutes has been described as "manifestly strong medicine," to be
employed "sparingly and only as a last resort,"[25] and is generally disfavored.[26] In determining the
constitutionality of a statute, therefore, its provisions which are alleged to have been violated in a case must be
examined in the light of the conduct with which the defendant is charged. [27]
In light of the foregoing disquisition, it is evident that the purported ambiguity of the Plunder Law, so tenaciously
claimed and argued at length by petitioner, is more imagined than real. Ambiguity, where none exists, cannot be
created by dissecting parts and words in the statute to furnish support to critics who cavil at the want of scientific
precision in the law. Every provision of the law should be construed in relation and with reference to every other
part. To be sure, it will take more than nitpicking to overturn the well-entrenched presumption of constitutionality
and validity of the Plunder Law. A fortiori, petitioner cannot feign ignorance of what the Plunder Law is all about.
Being one of the Senators who voted for its passage, petitioner must be aware that the law was extensively
deliberated upon by the Senate and its appropriate committees by reason of which he even registered his
affirmative vote with full knowledge of its legal implications and sound constitutional anchorage.

The parallel case of Gallego v. Sandiganbayan[28] must be mentioned if only to illustrate and emphasize the point
that courts are loathed to declare a statute void for uncertainty unless the law itself is so imperfect and deficient in
its details, and is susceptible of no reasonable construction that will support and give it effect. In that case,
petitioners Gallego and Agoncillo challenged the constitutionality of Sec. 3, par. (e), of The Anti-Graft and Corrupt
Practices Act for being vague. Petitioners posited, among others, that the term "unwarranted" is highly imprecise
and elastic with no common law meaning or settled definition by prior judicial or administrative precedents; that,
for its vagueness, Sec. 3, par. (e), violates due process in that it does not give fair warning or sufficient notice of
what it seeks to penalize. Petitioners further argued that the Information charged them with three (3) distinct
offenses, to wit: (a) giving of "unwarranted" benefits through manifest partiality; (b) giving of "unwarranted"
benefits through evident bad faith; and, (c) giving of "unwarranted" benefits through gross inexcusable negligence
while in the discharge of their official function and that their right to be informed of the nature and cause of the
accusation against them was violated because they were left to guess which of the three (3) offenses, if not all,
they were being charged and prosecuted.

In dismissing the petition, this Court held that Sec. 3, par. (e), of The Anti-Graft and Corrupt Practices Act does not
suffer from the constitutional defect of vagueness. The phrases "manifest partiality," "evident bad faith," and
"gross and inexcusable negligence" merely describe the different modes by which the offense penalized in Sec. 3,
par. (e), of the statute may be committed, and the use of all these phrases in the same Information does not mean
that the indictment charges three (3) distinct offenses.

The word 'unwarranted' is not uncertain. It seems lacking adequate or official support; unjustified; unauthorized
(Webster, Third International Dictionary, p. 2514); or without justification or adequate reason (Philadelphia
Newspapers, Inc. v. US Dept. of Justice, C.D. Pa., 405 F. Supp. 8, 12, cited in Words and Phrases, Permanent Edition,
Vol. 43-A 1978, Cumulative Annual Pocket Part, p. 19).

The assailed provisions of the Anti-Graft and Corrupt Practices Act consider a corrupt practice and make unlawful
the act of the public officer in:

x x x or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official,
administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence, x
x x (Section 3 [e], Rep. Act 3019, as amended).
It is not at all difficult to comprehend that what the aforequoted penal provisions penalize is the act of a public
officer, in the discharge of his official, administrative or judicial functions, in giving any private party benefits,
advantage or preference which is unjustified, unauthorized or without justification or adequate reason, through
manifest partiality, evident bad faith or gross inexcusable negligence.
In other words, this Court found that there was nothing vague or ambiguous in the use of the term "unwarranted"
in Sec. 3, par. (e), of The Anti-Graft and Corrupt Practices Act, which was understood in its primary and general
acceptation. Consequently, in that case, petitioners' objection thereto was held inadequate to declare the section
unconstitutional.

On the second issue, petitioner advances the highly stretched theory that Sec. 4 of the Plunder Law circumvents
the immutable obligation of the prosecution to prove beyond reasonable doubt the predicate acts constituting the
crime of plunder when it requires only proof of a pattern of overt or criminal acts showing unlawful scheme or
conspiracy -

SEC. 4. Rule of Evidence. - For purposes of establishing the crime of plunder, it shall not be necessary to prove each
and every criminal act done by the accused in furtherance of the scheme or conspiracy to amass, accumulate or
acquire ill-gotten wealth, it being sufficient to establish beyond reasonable doubt a pattern of overt or criminal acts
indicative of the overall unlawful scheme or conspiracy.
The running fault in this reasoning is obvious even to the simplistic mind. In a criminal prosecution for plunder, as
in all other crimes, the accused always has in his favor the presumption of innocence which is guaranteed by the
Bill of Rights, and unless the State succeeds in demonstrating by proof beyond reasonable doubt that culpability
lies, the accused is entitled to an acquittal.[29] The use of the "reasonable doubt" standard is indispensable to
command the respect and confidence of the community in the application of criminal law. It is critical that the
moral force of criminal law be not diluted by a standard of proof that leaves people in doubt whether innocent
men are being condemned. It is also important in our free society that every individual going about his ordinary
affairs has confidence that his government cannot adjudge him guilty of a criminal offense without convincing a
proper factfinder of his guilt with utmost certainty. This "reasonable doubt" standard has acquired such exalted
stature in the realm of constitutional law as it gives life to the Due Process Clausewhich protects the accused
against conviction except upon proof beyond reasonable doubt of every fact necessary to constitute the crime
with which he is charged.[30] The following exchanges between Rep. Rodolfo Albano and Rep. Pablo Garcia on this
score during the deliberations in the floor of the House of Representatives are elucidating -

DELIBERATIONS OF THE HOUSE OF REPRESENTATIVES ON RA 7080, 9 October 1990

MR. ALBANO: Now, Mr. Speaker, it is also elementary in our criminal law that what is alleged in the information
must be proven beyond reasonable doubt. If we will prove only one act and find him guilty of the other acts
enumerated in the information, does that not work against the right of the accused especially so if the amount
committed, say, by falsification is less than P100 million, but the totality of the crime committed is P100 million
since there is malversation, bribery, falsification of public document, coercion, theft?
MR. GARCIA: Mr. Speaker, not everything alleged in the information needs to be proved beyond reasonable doubt.
What is required to be proved beyond reasonable doubt is every element of the crime charged. For example, Mr.
Speaker, there is an enumeration of the things taken by the robber in the information - three pairs of pants, pieces
of jewelry. These need not be proved beyond reasonable doubt, but these will not prevent the conviction of a crime
for which he was charged just because, say, instead of 3 pairs of diamond earrings the prosecution proved two.
Now, what is required to be proved beyond reasonable doubt is the element of the offense.

MR. ALBANO: I am aware of that, Mr. Speaker, but considering that in the crime of plunder the totality of the
amount is very important, I feel that such a series of overt criminal acts has to be taken singly. For instance, in the
act of bribery, he was able to accumulate only P50,000 and in the crime of extortion, he was only able to
accumulate P1 million. Now, when we add the totality of the other acts as required under this bill through the
interpretation on the rule of evidence, it is just one single act, so how can we now convict him?

MR. GARCIA: With due respect, Mr. Speaker, for purposes of proving an essential element of the crime, there is a
need to prove that element beyond reasonable doubt. For example, one essential element of the crime is that the
amount involved is P100 million. Now, in a series of defalcations and other acts of corruption in the enumeration
the total amount would be P110 or P120 million, but there are certain acts that could not be proved, so, we will
sum up the amounts involved in those transactions which were proved. Now, if the amount involved in these
transactions, proved beyond reasonable doubt, is P100 million, then there is a crime of plunder (underscoring
supplied).
It is thus plain from the foregoing that the legislature did not in any manner refashion the standard quantum of
proof in the crime of plunder. The burden still remains with the prosecution to prove beyond any iota of doubt
every fact or element necessary to constitute the crime.

The thesis that Sec. 4 does away with proof of each and every component of the crime suffers from a dismal
misconception of the import of that provision. What the prosecution needs to prove beyond reasonable doubt is
only a number of acts sufficient to form a combination or series which would constitute a pattern and involving an
amount of at least P50,000,000.00. There is no need to prove each and every other act alleged in the Information
to have been committed by the accused in furtherance of the overall unlawful scheme or conspiracy to amass,
accumulate or acquire ill-gotten wealth. To illustrate, supposing that the accused is charged in an Information for
plunder with having committed fifty (50) raids on the public treasury. The prosecution need not prove all these
fifty (50) raids, it being sufficient to prove by pattern at least two (2) of the raids beyond reasonable doubt
provided only that they amounted to at least P50,000,000.00. [31]

A reading of Sec. 2 in conjunction with Sec. 4, brings us to the logical conclusion that "pattern of overt or criminal
acts indicative of the overall unlawful scheme or conspiracy" inheres in the very acts of accumulating, acquiring or
amassing hidden wealth. Stated otherwise, such pattern arises where the prosecution is able to prove beyond
reasonable doubt the predicate acts as defined in Sec. 1, par. (d). Pattern is merely a by-product of the proof of the
predicate acts. This conclusion is consistent with reason and common sense. There would be no other explanation
for a combination or series of

overt or criminal acts to stash P50,000,000.00 or more, than "a scheme or conspiracy to amass, accumulate or
acquire ill gotten wealth." The prosecution is therefore not required to make a deliberate and conscious effort to
prove pattern as it necessarily follows with the establishment of a series or combination of the predicate acts.

Relative to petitioner's contentions on the purported defect of Sec. 4 is his submission that "pattern" is "a very
important element of the crime of plunder;" and that Sec. 4 is "two pronged, (as) it contains a rule of evidence and
a substantive element of the crime," such that without it the accused cannot be convicted of plunder -

JUSTICE BELLOSILLO: In other words, cannot an accused be convicted under the Plunder Law without applying
Section 4 on the Rule of Evidence if there is proof beyond reasonable doubt of the commission of the acts
complained of?
ATTY. AGABIN: In that case he can be convicted of individual crimes enumerated in the Revised Penal Code, but not
plunder.

JUSTICE BELLOSILLO: In other words, if all the elements of the crime are proved beyond reasonable doubt without
applying Section 4, can you not have a conviction under the Plunder Law?

ATTY. AGABIN: Not a conviction for plunder, your Honor.

JUSTICE BELLOSILLO: Can you not disregard the application of Sec. 4 in convicting an accused charged for violation
of the Plunder Law?

ATTY. AGABIN: Well, your Honor, in the first place Section 4 lays down a substantive element of the law x x x x

JUSTICE BELLOSILLO: What I said is - do we have to avail of Section 4 when there is proof beyond reasonable doubt
on the acts charged constituting plunder?

ATTY. AGABIN: Yes, your Honor, because Section 4 is two pronged, it contains a rule of evidence and it contains a
substantive element of the crime of plunder. So, there is no way by which we can avoid Section 4.

JUSTICE BELLOSILLO: But there is proof beyond reasonable doubt insofar as the predicate crimes charged are
concerned that you do not have to go that far by applying Section 4?

ATTY. AGABIN: Your Honor, our thinking is that Section 4 contains a very important element of the crime of plunder
and that cannot be avoided by the prosecution. [32]
We do not subscribe to petitioner's stand. Primarily, all the essential elements of plunder can be culled and
understood from its definition in Sec. 2, in relation to Sec. 1, par. (d), and "pattern" is not one of them. Moreover,
the epigraph and opening clause of Sec. 4 is clear and unequivocal:

SEC. 4. Rule of Evidence. - For purposes of establishing the crime of plunder x x x x

It purports to do no more than prescribe a rule of procedure for the prosecution of a criminal case for plunder.
Being a purely procedural measure, Sec. 4 does not define or establish any substantive right in favor of the accused
but only operates in furtherance of a remedy. It is only a means to an end, an aid to substantive law. Indubitably,
even without invoking Sec. 4, a conviction for plunder may be had, for what is crucial for the prosecution is to
present sufficient evidence to engender that moral certitude exacted by the fundamental law to prove the guilt of
the accused beyond reasonable doubt. Thus, even granting for the sake of argument that Sec. 4 is flawed and
vitiated for the reasons advanced by petitioner, it may simply be severed from the rest of the provisions without
necessarily resulting in the demise of the law; after all, the existing rules on evidence can supplant Sec. 4 more
than enough. Besides, Sec. 7 of RA 7080 provides for a separability clause -

Sec. 7. Separability of Provisions. - If any provisions of this Act or the application thereof to any person or
circumstance is held invalid, the remaining provisions of this Act and the application of such provisions to other
persons or circumstances shall not be affected thereby.
Implicit in the foregoing section is that to avoid the whole act from being declared invalid as a result of the nullity
of some of its provisions, assuming that to be the case although it is not really so, all the provisions thereof should
accordingly be treated independently of each other, especially if by doing so, the objectives of the statute can best
be achieved.

As regards the third issue, again we agree with Justice Mendoza that plunder is a malum in se which requires proof
of criminal intent. Thus, he says, in his Concurring Opinion -

x x x Precisely because the constitutive crimes are mala in se the element of mens rea must be proven in a
prosecution for plunder. It is noteworthy that the amended information alleges that the crime of plunder was
committed "willfully, unlawfully and criminally." It thus alleges guilty knowledge on the part of petitioner.
In support of his contention that the statute eliminates the requirement of mens rea and that is the reason he
claims the statute is void, petitioner cites the following remarks of Senator Tañada made during the deliberation
on S.B. No. 733:

SENATOR TAÑADA . . . And the evidence that will be required to convict him would not be evidence for each and
every individual criminal act but only evidence sufficient to establish the conspiracy or scheme to commit this
crime of plunder.[33]
However, Senator Tañada was discussing §4 as shown by the succeeding portion of the transcript quoted by
petitioner:

SENATOR ROMULO: And, Mr. President, the Gentleman feels that it is contained in Section 4, Rule of Evidence,
which, in the Gentleman's view, would provide for a speedier and faster process of attending to this kind of cases?

SENATOR TAÑADA: Yes, Mr. President . . .[34]

Senator Tañada was only saying that where the charge is conspiracy to commit plunder, the prosecution need not
prove each and every criminal act done to further the scheme or conspiracy, it being enough if it proves beyond
reasonable doubt a pattern of overt or ciminal acts indicative of the overall unlawful scheme or conspiracy. As far
as the acts constituting the pattern are concerned, however, the elements of the crime must be proved and the
requisite mens rea must be shown.
Indeed, §2 provides that -

Any person who participated with the said public officer in the commission of an offense contributing to the crime
of plunder shall likewise be punished for such offense. In the imposition of penalties, the degree of participation
and the attendance of mitigating and extenuating circumstances, as provided by the Revised Penal Code, shall be
considered by the court.
The application of mitigating and extenuating circumstances in the Revised Penal Code to prosecutions under the
Anti-Plunder Law indicates quite clearly that mens rea is an element of plunder since the degree of responsibility of
the offender is determined by his criminal intent. It is true that §2 refers to "any person who participates with the
said public officer in the commission of an offense contributing to the crime of plunder." There is no reason to
believe, however, that it does not apply as well to the public officer as principal in the crime. As Justice Holmes
said: "We agree to all the generalities about not supplying criminal laws with what they omit, but there is no canon
against using common sense in construing laws as saying what they obviously mean." [35]

Finally, any doubt as to whether the crime of plunder is a malum in se must be deemed to have been resolved in
the affirmative by the decision of Congress in 1993 to include it among the heinous crimes punishable by reclusion
perpetua to death. Other heinous crimes are punished with death as a straight penalty in R.A. No. 7659. Referring
to these groups of heinous crimes, this Court held in People v. Echegaray:[36]

The evil of a crime may take various forms. There are crimes that are, by their very nature, despicable, either
because life was callously taken or the victim is treated like an animal and utterly dehumanized as to completely
disrupt the normal course of his or her growth as a human being . . . . Seen in this light, the capital crimes of
kidnapping and serious illegal detention for ransom resulting in the death of the victim or the victim is raped,
tortured, or subjected to dehumanizing acts; destructive arson resulting in death; and drug offenses involving
minors or resulting in the death of the victim in the case of other crimes; as well as murder, rape, parricide,
infanticide, kidnapping and serious illegal detention, where the victim is detained for more than three days or
serious physical injuries were inflicted on the victim or threats to kill him were made or the victim is a minor,
robbery with homicide, rape or intentional mutilation, destructive arson, and carnapping where the owner, driver
or occupant of the carnapped vehicle is killed or raped, which are penalized by reclusion perpetua to death, are
clearly heinous by their very nature.

There are crimes, however, in which the abomination lies in the significance and implications of the subject
criminal acts in the scheme of the larger socio-political and economic context in which the state finds itself to be
struggling to develop and provide for its poor and underprivileged masses. Reeling from decades of corrupt
tyrannical rule that bankrupted the government and impoverished the population, the Philippine Government
must muster the political will to dismantle the culture of corruption, dishonesty, greed and syndicated criminality
that so deeply entrenched itself in the structures of society and the psyche of the populace. [With the
government] terribly lacking the money to provide even the most basic services to its people, any form of
misappropriation or misapplication of government funds translates to an actual threat to the very existence of
government, and in turn, the very survival of the people it governs over. Viewed in this context, no less heinous are
the effects and repercussions of crimes like qualified bribery, destructive arson resulting in death, and drug
offenses involving government officials, employees or officers, that their perpetrators must not be allowed to
cause further destruction and damage to society.
The legislative declaration in R.A. No. 7659 that plunder is a heinous offense implies that it is a malum in se. For
when the acts punished are inherently immoral or inherently wrong, they are mala in se[37] and it does not matter
that such acts are punished in a special law, especially since in the case of plunder the predicate crimes are
mainly mala in se. Indeed, it would be absurd to treat prosecutions for plunder as though they are mere
prosecutions for violations of the Bouncing Check Law (B.P. Blg. 22) or of an ordinance against jaywalking, without
regard to the inherent wrongness of the acts.
To clinch, petitioner likewise assails the validity of RA 7659, the amendatory law of RA 7080, on constitutional
grounds. Suffice it to say however that it is now too late in the day for him to resurrect this long dead issue, the
same having been eternally consigned by People v. Echegaray[38] to the archives of jurisprudential history. The
declaration of this Court therein that RA 7659 is constitutionally valid stands as a declaration of the State, and
becomes, by necessary effect, assimilated in the Constitution now as an integral part of it.

Our nation has been racked by scandals of corruption and obscene profligacy of officials in high places which have
shaken its very foundation. The anatomy of graft and corruption has become more elaborate in the corridors of
time as unscrupulous people relentlessly contrive more and more ingenious ways to bilk the coffers of the
government. Drastic and radical measures are imperative to fight the increasingly sophisticated, extraordinarily
methodical and economically catastrophic looting of the national treasury. Such is the Plunder Law, especially
designed to disentangle those ghastly tissues of grand-scale corruption which, if left unchecked, will spread like a
malignant tumor and ultimately consume the moral and institutional fiber of our nation. The Plunder Law, indeed,
is a living testament to the will of the legislature to ultimately eradicate this scourge and thus secure society
against the avarice and other venalities in public office.

These are times that try men's souls. In the checkered history of this nation, few issues of national importance can
equal the amount of interest and passion generated by petitioner's ignominious fall from the highest office, and
his eventual prosecution and trial under a virginal statute. This continuing saga has driven a wedge of dissension
among our people that may linger for a long time. Only by responding to the clarion call for patriotism, to rise
above factionalism and prejudices, shall we emerge triumphant in the midst of ferment.

PREMISES CONSIDERED, this Court holds that RA 7080 otherwise known as the Plunder Law, as amended by RA
7659, is CONSTITUTIONAL. Consequently, the petition to declare the law unconstitutional is DISMISSED for lack of
merit.

SO ORDERED.

EN BANC

[ G.R. Nos. 59568-76, January 11, 1990 ]

PETER NIERRAS, PETITIONER, VS. HON. AUXENCIO C. DACUYCUY AND HON. ANTONIO S. LOPEZ, IN THEIR CAPACITY
AS PRESIDING JUDGE, BRANCH IV, COURT OF FIRST INSTANCE OF LEYTE, PALO, LEYTE AND CITY FISCAL OF
TACLOBAN CITY, LEYTE, RESPECTIVELY, RESPONDENTS.

DECISION

PARAS, J.:

Before Us is a petition for certiorari with preliminary injunction for the annulment of the resolution dated
September 17, 1981 of the respondent Judge Auxencio C. Dacuycuy in nine (9) criminal cases, entitled "People of
the Philippines v. Peter Nierras" docketed as Criminal Cases Nos. 4379, 4380, 4381, 4382, 4383, 4384, 4385, 4386
and 4387, for estafa under Article 315 (2-d) of the Revised Penal Code which denied petitioner's motion to quash.
Said motion to quash was filed by petitioner on the ground of double jeopardy as these offenses were already
included in Criminal Cases Nos. 3790, 3791, 3792, 3793, 4085, 4122, 4123, 4124, and 4125, entitled "People of the
Philippines v. Peter Nierras", for violation of the Bouncing Checks Law or Batas Pambansa Blg. 22, pending before
the lower court. In both sets of criminal cases, petitioner entered a plea of not guilty upon arraignment before the
lower court. However, immediately after his plea of not guilty in these estafa cases, petitioner moved in open
court to be allowed to withdraw his plea of not guilty upon his filing of a motion to quash, which was denied by
respondent Judge ruling as follows:
"The motion to quash should be and is hereby denied. Accused Peter Nierras allegedly issued the checks in favor of
complainant Pilipinas Shell Petroleum Corporation in payment of oil products which the latter delivered to him
simultaneously with the issuance of the checks.

"xxx xxx xxx

"x x x The crime of estafa committed by means of bouncing checks is not committed by mere issuance of a check.
Under Art. 315, par. 2 (d) of the Revised Penal Code, as amended by Republic Act 4885, the following are the
elements of estafa: (1) the postdating or issuance of a check in payment of an obligation contracted at the time the
check was issued; (2) lack of or insufficiency of funds to cover the check; and (3) damage to the payee thereof
(People v. Sabio, 86 SCRA 568). Under Batas Pambansa Bilang 22 (1979) the mere issuance of a check without
sufficient funds issued in payment of a simultaneous obligation and the check was dishonored upon presentation
for that estafa is committed under the Revised Penal Code. At the same time the drawer will also be liable under
Batas Pambansa Bilang 22 for offense of issuing a check without sufficient funds" (pp. 1-2, Resolution On Motion
To Quash dated September 17, 1981; Annex 'MM', Petition). (p. 100, Rollo)
The issue now submitted for Our consideration is whether the filing of the nine (9) other informations for estafa
against petitioner under the Revised Penal Code after he had earlier been charged with violation of Batas
Pambansa Blg. 22 for issuing the same bouncing checks will put him in jeopardy of being convicted twice for the
same offenses. In other words, can petitioner be held liable for the nine criminal cases for violation of Batas
Pambansa Blg. 22, and separately also be held liable for the crime of estafa under Article 315 (2-d) of the Revised
Penal Code for the issuance of the same bouncing checks?

It appears that petitioner, a customer of Pilipinas Shell Petroleum Corporation, purchased oil products from it.
Simultaneous with the delivery of the products, he issued nine (9) checks in payment thereof. Upon presentation
to the Philippine National Bank at Naval, Leyte, said checks were dishonored for the reason that his account was
already closed. Thereafter, Pilipinas Shell Petroleum Corporation repeatedly demanded of petitioner either to
deposit funds for his checks or pay for the oil products he had purchased but he failed and refused to do either.

Petitioner argues that he would be placed in double jeopardy as all the elements of estafa under Article 315 (2-d)
of the Revised Penal Code are also present in that crime punishable under Batas Pambansa Bilang 22 namely (1)
"the postdating or issuance of a check in payment of an obligation contracted at the time the check was issued; (2)
lack or insufficiency of funds to cover the check and (3) damage to the payee thereof."

Petitioner's contentions are devoid of merit.

Petitioner is charged with two (2) distinct and separate offenses, first under Section 1 of Batas Pambansa Bilang 22
approved on April 3, 1979 which provides that:

"Any person who makes or draws and issues any check to apply on account or for value, knowing at the time of
issue that he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full
upon its presentment, which check is subsequently dishonored by the drawee bank for insufficiency of funds or
credit or would have been dishonored for the same reason had not the drawer, without any valid reason ordered
the bank to stop payment, shall be punished by imprisonment of not less than thirty days but not more than one
(1) year or by a fine of not less than but not more than double the amount of the check which fine shall in no case
exceed TWO HUNDRED THOUSAND PESOS or both such fine and imprisonment at the discretion of the court."

and, second, under Article 315, (2-d) of the Revised Penal Code which states as follows:

"Art. 315. Swindling (estafa). Any person who shall defraud another by any of the means mentioned hereinbelow x
xx

"xxx xxx xxx

"2. By means of any of the following false pretenses or fraudulent acts, executed prior to or simultaneously with
the commission of the fraud;

"xxx xxx xxx

"(d) By postdating a check or issuing a check in payment of an obligation when the offender had no funds in the
bank, or his funds deposited therein were not sufficient to cover the amount of the check."

What petitioner failed to mention in his argument is the fact that deceit and damage are essential elements in
Article 315 (2-d) Revised Penal Code, but are not required in Batas Pambansa Bilang 22. Under the latter law, mere
issuance of a check that is dishonored gives rise to the presumption of knowledge on the part of the drawer that
he issue same without sufficient funds and hence punishable (People v. Veridiano, 132 SCRA 523) which is not so
under the Penal Code. Other differences between the two also include the following: (1) a drawer of a dishonored
check may be convicted under Batas Pambansa Bilang 22 even if he had issued the same for a pre-existing
obligation, while under Article 315 (2-d) of the Revised Penal Code, such circumstance negates criminal liability; (2)
specific and different penalties are imposed in each of the two offenses; (3) estafa is essentially a crime against
property, while violation of Batas Pambansa Bilang 22 is principally a crime against public interest as it does injury
to the entire banking system; (4) violations of Article 315 of the Revised Penal Code are mala in se, while those of
Batas Pambansa Bilang 22 are mala prohibita.
These differences are better understood by presenting the pertinent discussions on the passage of Batas
Pambansa Bilang 22 between the author of the bill, former Solicitor General and Member of the Batasang
Pambansa, the Honorable Estelito P. Mendoza, presented in the memorandum for the government, as follows:

"MR. MENDOZA. If there is evidence demonstrating that the act committed does not only violate this proposed Act
but also the Revised Penal Code, there will be further prosecution under the Revised Penal Code. That is why it is
proposed in this Act that there be a single uniform penalty for all violations in this Act. However the court is given
the discretion whether to impose imprisonment or fine or both or also in whatever severity the court may consider
appropriate under the circumstances.

xxx xxx xxx

"MR. VELOSO, F. The other way around, it is not so. So precisely, if I file a case for estafa against a particular person
for issuance of a bouncing check, then necessarily I can also be prosecuted under this proposed bill. On the other
hand, if a person is prosecuted under the proposed bill, it does not necessarily follow that he can be prosecuted
for estafa.
"MR. MENDOZA. This is simply because that in a certain set of circumstances, the offense under this Act is the only
offense committed while under a different set of circumstances, not only the offense described in this Act is
committed but also estafa. So that, for example, if a check with sufficient funds is issued in payment of a pre-
existing obligation and the position of the Government should turn out to be correct that there is no estafa, then
the drawer of the check would only be liable under this Act but not under the Revised Penal Code. But if he issues
a check in payment, or contemporaneously with incurring, of an obligation, then he will be liable not only for
estafa but also for violation for this Act. There is a difference between the two cases. In that situation where the
check was issued in payment of a pre-existing obligation, the issuance of the check does not cause damage to the
payee and so it is but appropriate that he should not be Held for estafa but only for violating this Act. But if he
issued a check to induce another to part with a valuable consideration and the check bounces, then he does inflict
an injury to the payee of the check apart from violating this law. In that case, it should be but fair that he be
subject to prosecution not only for estafa but also for violating this law.

"MR. VELOSO, F. Yes, I agree with the Solicitor General an that point but my worry is with respect to situations
where there is prosecution first to estafa.

"MR. MENDOZA. Well, if there is estafa . . . . .

"MR. VELOSO, F. Estafa committed by the issuance of a bouncing check, in which case it will be mandatory on the
part of the prosecuting official to also file a case for violation of this offense under the proposed bill.

"MR. MENDOZA. Yes, that is correct. In such a situation because of the offender did not only cause injury on
account of the issuance of the check but did issue a bouncing check penalized under this Act, then he will be liable
for prosecution under both laws. I would admit that perhaps in such situation, the penalty may be somewhat
severe. As a matter of fact, in other jurisdictions, the issuance of bouncing checks is penalized with substantially
lower penalty. However, because of the situation in the Philippines, the situation being now relatively grave that
practically everybody is complaining about bouncing checks, may be it is necessary at least initially, at this point in
time for us to impose a rather severe penalty and even allow liability not only under this Act but also for estafa.
Then perhaps after the necessary discipline has been inculcated in our people and that the incidence of the
offense has been reduced, we may then decide to amend the law and reduce the penalty. But at this time, shall we
say the evil is of such magnitude that only a dramatic and expeditious effort to prosecute persons who issue
bouncing checks maybe necessary to curb quickly this evil." (explanations given by Solicitor General ESTELITO P.
MENDOZA at the Batasan Pambansa during his sponsorship speech of BP 22 which he authored, pages 1037-1038,
Record of the Batasan, Plenary Session No. 70, Dec. 4, 1978). (Italics supplied)." (pp. 115-117, Rollo or pp. 9-11,
Memorandum for respondents).

Furthermore, Section 5 of Batas Pambansa Bilang 22 provides that:

"Prosecution under this Act shall be without prejudice to any liability for violation of any provision of the Revised
Penal Code."

While the filing of the two sets of Information under the provisions of Batas Pambansa Bilang 22 and under the
provisions of the Revised Penal Code, as amended, on estafa, may refer to identical acts committed by petitioner,
the prosecution thereof cannot be limited to one offense, because a single criminal act may give rise to a
multiplicity of offenses and where there is variance or differences between the elements of an offense in one law
and another law as in the case at bar there will be no double jeopardy because what the rule on double jeopardy
prohibits refers to identity of elements in the two (2) offenses. Otherwise stated prosecution for the same act is
not prohibited. What is forbidden is prosecution for the same offense. Hence, the mere filing of the two (2) sets of
informations does not itself give rise to double jeopardy (People v. Miraflores, 115 SCRA 570).

In the instant petition, certiorari is not the proper remedy. We have held in Acharon v. Purisima, et al. (13 SCRA
309) that "when a motion to quash a criminal case is denied, remedy is not certiorari but to go to court without
prejudice to reiterating special defenses invoked in the motion, and if after trial on the merits, an adverse decision
is rendered, to appeal therefrom in the manner authorized by law", invoking the rule laid down in People v.
Magdaluyo (1 SCRA 990). If the petitioner cannot appeal at this stage of the proceeding, it is because there is still a
necessity for the trial on the merits wherein the parties may present proofs in support of their contentions and not
because the remedy of appeal is unavailing.

WHEREFORE, premises considered, the petition for certiorari is hereby DISMISSED for lack of merit.

SO ORDERED.

THIRD DIVISION

[ G.R. No. 154438, September 05, 2007 ]

ALICIA F. RICAFORTE, PETITIONER, VS. LEON L. JURADO, RESPONDENT.

DECISION

AUSTRIA-MARTINEZ, J.:

Before us is a Petition for Review on Certiorari under Rule 45 of the Rules of Court seeking to annul and set aside
the Decision[1] dated April 26, 2002 and the Resolution[2] dated July 29, 2002 of the Court of Appeals (CA) in CA-
G.R. SP No. 66293.

On February 10, 1997, respondent filed a Complaint[3] for estafa and violation of Batas Pambansa (B.P.) Blg.
22 against Alicia F. Ricaforte (petitioner) with the Quezon City Prosecutor's Office. He alleged that he operates and
manages a rice mill in Bulacan; that sometime in June 1996, Ruby Aguilar (Aguilar) procured rice from him and in
payment thereof gave him two Far East Bank and Trust Company (FEBTC) checks, to wit: FEBTC Check No.
08A096028P dated July 25, 1996 and Check No. 08A096029P dated August 25, 1996, in the amount of P431,555.00
each, which were both issued by petitioner and when presented for payment were dishonored.

In her Counter-Affidavit, petitioner denied the accusation. She alleged that Aguilar who had lost her Metrobank
checkbook borrowed her checks to pay off Aguilar's obligations with Leon Jurado (respondent); that she willingly
lent her checks to Aguilar on condition that these checks will be replaced with Aguilar's own checks once her new
checkbook is issued to her by Metrobank; that Aguilar then used petitioner's checks to pay her rice procurement
with respondent; that in accordance with the arrangement, Aguilar issued two replacement checks in favor of
respondent in the amount of P431,555.00 each; that when Aguilar issued the replacement checks, petitioner
demanded from respondent the return of her checks but respondent refused, thus she was constrained to request
her bank to issue an order of stop payment. Aguilar executed an Affidavit corroborating petitioner's defense.

Respondent filed his Reply denying that petitioner's checks were merely accommodation checks. Petitioner filed
her rejoinder as well as supplement to rejoinder.

In a Resolution[4] dated November 24, 1997, Assistant City Prosecutor Luis Zenon Q. Maceren dismissed the
complaint for estafa and B.P. Blg. 22 for insufficiency of evidence. The prosecutor found that petitioner did not
have any business transaction with respondent; that the subject checks were issued only to accommodate Aguilar;
that these were delivered to respondent not as payment but as a guarantee and on condition that Aguilar will
replace petitioner's checks with her own, which Aguilar did prior to the maturity of petitioner's checks; that upon
maturity of Aguilar's replacement checks and after respondent presented them for payment and were
subsequently dishonored, it was then that petitioner's checks were also presented by respondent for encashment;
that Aguilar's replacement checks are now subject of another litigation pending in the Metropolitan Trial Court of
Quezon City; that the sequence of events showed that indeed petitioner's checks were not intended as payment to
respondent because petitioner had no obligation to respondent; that the checks were not issued to account or for
value; thus, there can be no finding of prima facie evidence of the charges against him relying on Magno v. Court of
Appeals.[5]

Respondent's Motion for Reconsideration was denied in a Resolution[6] dated May 27, 1998. The prosecutor found
that although the issuance of a worthless check is malum prohibitum, B.P. Blg. 22 still requires that the checks
should be issued with consideration, which element was lacking in this case; that even respondent admitted in his
Complaint-Affidavit that petitioner had no transaction with him by alleging that Aguilar handed to him petitioner's
two checks in payment of rice procurement representing these as Aguilar's collection checks and with assurance
that they are good; that when Aguilar replaced petitioner's checks with her own, petitioner's checks had no more
consideration since these were issued upon agreement that the real debtor, Aguilar, will also issue her own checks.

Respondent appealed the dismissal of his complaint to the Department of Justice. The Secretary of Justice issued a
Resolution[7] dated September 21, 2000 modifying the Resolution of the City Prosecutor and directing him to file an
information against petitioner for violation of B.P. Blg. 22.

The Justice Secretary found that while the dismissal of estafa is correct, petitioner should be indicted for B.P. Blg.
22. In so ruling, the Secretary found that while petitioner has no business transactions with respondent and merely
issued the checks as a guarantee for Aguilar's obligation to respondent, the fact remains that petitioner issued the
subject checks and failed to pay respondent the amount due thereon or make arrangements for their full payment
within five banking days after receiving a notice of dishonor; that the gravamen of the offense punished by B.P.
Blg. 22 is the act of making and issuing worthless checks or those dishonored upon their presentment for payment;
that the thrust of the law is to prohibit the making of worthless checks and putting them in circulation; that to
require the arrangement surrounding the issuance of the checks be first looked into and thereafter exempt such
issuance from the punitive provisions of B.P. Blg. 22 on the basis of that arrangement would frustrate the very
purpose for which the law was enacted, i.e. to stop the proliferation of unfunded checks; that B.P. Blg. 22 applies
even when dishonored checks were issued merely in the form of deposit or guarantee.

The Justice Secretary denied petitioner's Motion for Reconsideration in a Resolution[8] dated May 30, 2001.

Petitioner filed with the CA a Petition for Certiorari under Rule 65 assailing the resolutions of the Secretary of
Justice for having been issued with grave abuse of discretion.

On April 26, 2002, the CA issued its assailed Decision denying the petition for lack of merit. The CA found no grave
abuse of discretion committed by the Justice Secretary in his assailed Resolutions. It ruled that trial on the merits
must ensue since it is on said occasion that petitioner is granted opportunity for a full and exhaustive presentation
of her evidence and not during the preliminary investigation phase where the investigating officer acts upon
probable cause and reasonable belief; that in the preliminary investigation phase, it is not yet clear whether
petitioner could be considered as having actually committed the offense charged and sought to be punished,
although petitioner is presumed innocent until proven guilty beyond reasonable doubt; that the crux of the matter
rests upon the reasons for the drawing of the postdated checks by petitioner; i.e., whether they were drawn or
issued "to apply on account or for value" as required under B.P. Blg. 22 which will only be determined during trial.

Petitioner's Motion for Reconsideration was denied in a Resolution dated July 29, 2002. The CA ruled that mere
issuance of a bouncing check constitutes a probable cause for violation of B.P. Blg. 22; that whether or not the
accused is guilty thereof is determined in the trial proper; that preliminary investigation is not a trial and is not
intended to usurp the function of the trial court; that Sales, which is invoked by petitioner, is not applicable to the
instant case, since the issue in that case was whether or not the Ombudsman followed the proper procedure in
conducting a preliminary investigation and the corollary issue of whether or not petitioner was afforded an
opportunity to be heard and to submit controverting evidence which are not the issues in this case.
Hence, herein petition on the following grounds:

THE HONORABLE COURT OF APPEALS COMMITTED A GRAVE REVERSIBLE ERROR IN NOT HOLDING THAT THE
HONORABLE SECRETARY OF JUSTICE COMMITTED A GRAVE ABUSE OF DISCRETION IN ISSUING HIS MODIFIED
RESOLUTION FINDING PROBABLE CAUSE AGAINST PETITIONER FOR VIOLATION OF B.P. BLG. 22, DESPITE THE FACT
THAT THE HONORABLE SECRETARY HAS AGREED WITH THE FINDING OF THE QUEZON CITY PROSECUTION OFFICE
DISMISSING THE CHARGE OF ESTAFA AGAINST PETITIONER.

II

THE HONORABLE COURT OF APPEALS COMMITTED A SERIOUS REVERSIBLE ERROR IN NOT GIVING WEIGHT AND
CREDENCE TO PETITIONER'S CLAIM THAT THE SUBJECT CHECKS WERE NOT ISSUED TO ACCOUNT OR FOR VALUE
BUT SOLELY TO GUARANTEE RUBY AGUILAR'S CHECKS, ESPECIALLY CONSIDERING THAT IT IS UNDISPUTED THAT
PETITIONER HAD NO BUSINESS DEALINGS WHATSOEVER WITH THE RESPONDENT REGARDING RICE
PROCUREMENTS.

III

THE HONORABLE COURT OF APPEALS COMMITTED A SERIOUS REVERSIBLE ERROR IN NOT HOLDING THAT THERE IS
NO NEED TO GO TO TRIAL IN THE INSTANT CASE BECAUSE EVEN DURING THE PRELIMINARY INVESTIGATION
CONDUCTED BY THE QUEZON CITY PROSECUTION OFFICE, THE SAID PROSECUTION OFFICE HAD FOUND THAT NO
PRIMA FACIE OR PROBABLE CAUSE EXISTS TO WARRANT THE FILING OF THE COMPLAINTS OF ESTAFA AND
VIOLATION OF B.P. BLG. 22 AGAINST THE PETITIONER.

IV

THE AFFIRMANCE BY THE HONORABLE COURT OF APPEALS OF THE MODIFIED RESOLUTION OF THE HONORABLE
SECRETARY OF JUSTICE DIRECTING THE FILING OFAN INFORMATION AGAINST PETITIONER FOR VIOLATION OF B.P.
BLG. 22 OVERLOOKED THE FACT THAT RESPONDENT WOULD BE UNJUSTLY ENRICHED AT THE EXPENSE OF
PETITIONER AND THE DEBTOR, MS RUBY AGUILAR, IN THE FORM OF IMPOSITION OF A FINE WHICH IS DOUBLE THE
AMOUNT OF THE BOUNCED CHECKS.[9]
The main issue to be resolved is whether the CA erred in ruling that the Secretary of Justice did not commit grave
abuse of discretion in finding that there is probable cause for the filing of information against petitioner for
violation of B.P. Blg. 22.

Petitioner alleges that the CA should not have sustained the modified resolution of the Secretary of Justice
because the Secretary misappreciated her defense, i.e., that Aguilar lost her Metrobank checkbook and borrowed
her check and that she issued the subject checks on the condition that the same will be replaced when Aguilar's
new checkbook is issued, thus the subject checks are merely accommodation or guarantee checks; that it was
Aguilar who tendered them to respondent in payment of her rice procurements from him; that the subject checks
were not intended for encashment; that Aguilar subsequently issued her own checks dated July 20, 1996 and
August 20, 1996, for P431,555.00 each as replacement for the subject checks; that such substitution was with
respondent's knowledge, since the arrangement was brought to his attention through a letter dated July 19, 1996.

Petitioner insists that none of the elements of the offense of B.P. Blg. 22 were present; the first element is absent,
since the subject checks were not intended to apply on account or for value in favor of respondent, as petitioner
had no business transaction on rice procurements with respondent; the second element is also absent because it is
undisputed that at the time petitioner issued the checks, she had substantial deposits with FEBTC which can
readily fund her checks upon presentment or maturity; that the reason for the dishonor was "stop payment,"
because she requested the bank to do so due to a valid reason, i.e., her checks were already replaced by Aguilar's
checks dated July 20, 1996 and August 20, 1996. Petitioner cites Tan v. People,[10] in which the petitioner was
acquitted of violation of B.P. Blg. 22 because in ordering the stop payment of her check, there were sufficient
funds in her account.

Petitioner claims that the CA overlooked the fact that the Secretary of Justice absolved her of estafa; thus, she
should also be absolved of violation of B.P. Blg. 22, since both offenses arose from the same subject checks.

Petitioner contends that the CA misappreciated the importance of a preliminary investigation when it ruled that
the trial on the merits must ensue, and it is on said occasion when petitioner is granted the opportunity for a full
and exhaustive display of her evidence; that it erred in ruling that it is only during trial that the presence or
absence of the first element of B.P. Blg. 22, i.e., whether the subject checks were issued to apply to account or for
value, can be determined; that preliminary investigation should be given due importance and the determination of
whether the first element of B.P. Blg. 22 is present should not be shifted to the trial court; that contrary to the CA's
finding, Sales is applicable, a case in which it was ruled that at the preliminary investigation proper, the question
whether or not an accused can be bound over for trial can already be determined; if it was determined at the
preliminary investigation that an accused had not committed the crime charged, then it is useless to still hold a
trial to determine the guilt of the accused, since it can already be determined at the preliminary investigation.

We are not persuaded.

In a preliminary investigation, the public prosecutor merely determines whether there is probable cause or
sufficient ground to engender a well-founded belief that a crime has been committed, and that the respondent is
probably guilty thereof and should be held for trial.[11] Probable cause implies probability of guilt and requires
more than bare suspicion but less than evidence which would justify a conviction. [12] A finding of probable cause
needs only to rest on evidence showing that more likely than not, a crime has been committed by the
suspect.[13] It does not call for the application of rules and standards of proof that a judgment of conviction
requires after trial on the merits.[14] The complainant need not present at this stage proof beyond reasonable
doubt. A preliminary investigation does not require a full and exhaustive presentation of the parties' evidence. [15]
It is enough that in the absence of a clear showing of arbitrariness, credence is given to the finding and
determination of probable cause by the Secretary of Justice in a preliminary investigation. [16]

Contrary to petitioner's claim, respondent sufficiently established the existence of probable cause for violation of
B.P. Blg. 22. Section 1 of B.P. Blg. 22 provides:

SECTION 1. Checks without sufficient funds. - Any person who makes or draws and issues any check to apply on
account or for value, knowing at the time of issue that he does not have sufficient funds in or credit with the
drawee bank for the payment of such check in full upon its presentment, which check is subsequently dishonored
by the drawee bank for insufficiency of funds or credit or would have been dishonored for the same reason had
not the drawer, without any valid reason, ordered the bank to stop payment, shall be punished by imprisonment
of not less than thirty days but not more than one (1) year or by a fine of not less than but not more than double
the amount of the check which fine shall in no case exceed Two Hundred Thousand Pesos, or both such fine and
imprisonment at the discretion of the court.

The same penalty shall be imposed upon any person who, having sufficient funds in or credit with the drawee bank
when he makes or draws and issues a check, shall fail to keep sufficient funds or to maintain a credit to cover the
full amount of the check if presented within a period of ninety (90) days from the date appearing thereon, for
which reason it is dishonored by the drawee bank.

Where the check is drawn by a corporation, company or entity, the person or persons who actually signed the
check in behalf of such drawer shall be liable under this Act.
To be liable for violation of B.P. Blg. 22, the following elements must be present:

1) The accused makes, draws or issues any check to apply to account or for value;
2) The accused knows at the time of the issuance that he or she does not have sufficient funds in, or credit with,
the drawee bank for the payment of the check in full upon its presentment; and

3) The check is subsequently dishonored by the drawee bank for insufficiency of funds or credit or it would have
been dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop
payment.
The gravamen of the offense punished by B.P. Blg. 22 is the act of making and issuing a worthless check; that is, a
check that is dishonored upon its presentation for payment. [17] In Lozano v. Martinez,[18] we have declared that it is
not the non-payment of an obligation which the law punishes. The law is not intended or designed to coerce a
debtor to pay his debt. The thrust of the law is to prohibit, under pain of penal sanctions, the making and
circulation of worthless checks. Because of its deleterious effects on the public interest, the practice is proscribed
by the law. The law punishes the act not as an offense against property, but an offense against public order. [19] In
People v. Nitafan,[20] we said that a check issued as an evidence of debt though not intended to be presented for
payment has the same effect as an ordinary check and would fall within the ambit of B.P. Blg. 22.

In this case, petitioner issued the two subject checks in favor of respondent, and when respondent presented them
for payment, they were dishonored for reason of the stop payment order issued by petitioner. Notably, a
certification[21] from the bank showed that they returned the checks for that reason. In addition, contrary to the
claim of petitioner, at the time the said checks were presented for deposit/payment, there were no sufficient
funds to cover the same. The mere act of issuing a worthless check -- whether as a deposit, as a guarantee or even
as evidence of pre-existing debt -- is malum prohibitum.[22]

Petitioner claims that the subject checks were merely accommodation checks in favor of Aguilar, as they were not
issued to account or for value, since she had no business transactions with respondent-payee. However, petitioner
admitted that she issued the checks for the rice procurement of Aguilar from respondent which was a valuable
consideration. Notably, in respondent's complaint-affidavit, he alleged that the subject checks were given to him
by Aguilar in payment of the latter's rice procurements, with the representation that the subject checks were her
collection checks and assuring respondent that they would be good upon presentment.

On record is a letter[23] dated July 31, 1996 of respondent's counsel to petitioner on the matter of petitioner's
subject FEBTC Check No. 08A096028P dated July 25, 1996, a letter in which the counsel wrote that the check which
was in partial payment of the obligation due from Aguilar, and that in return for petitioner's issuance and delivery
of the said check, Aguilar acquired a temporary reprieve on her obligation.

The validity and merits of a party's defense and accusation, as well as admissibility of testimonies and evidence,
are better ventilated during trial proper than at the preliminary investigation level. [24] A finding of probable cause
does not ensure a conviction or a conclusive finding of guilt beyond reasonable doubt. The allegations adduced by
the prosecution will be put to test in a full-blown trial in which evidence shall be analyzed, weighed, given
credence or disproved.[25]

In fact, petitioner's argument that respondent was aware of the fact that the subject checks were only
accommodation checks in favor of Aguilar is not a defense against a charge for violation of B.P. Blg. 22. In Ruiz v.
People of the Philippines,[26] where the accused interposed the defense of accommodation party, we held:

It bears stressing that, whether a person is an accommodation party is a question of intent. When the intent of
the parties does not appear on the face of the check, it must be ascertained in the light of the surrounding facts
and circumstances. Invariably, the tests applied are the purpose test and the proceeds test. x x x. And even
assuming she was such party, this circumstance is not a defense to a charge for violation of B.P. 22. What the law
punishes is the issuance itself of a bouncing check and not the purpose for which it was issued or of the terms and
conditions relating to its issuance. The mere act of issuing a worthless check, whether merely as an
accommodation, is covered by B.P. 22. Hence, the agreement surrounding the issuance of a check is irrelevant to
the prosecution and conviction of the petitioner.[27]
In Meriz v. People of the Philippines,[28] we held:

The Court has consistently declared that the cause or reason for the issuance of the check is inconsequential in
determining criminal culpability under BP 22. The Court has since said that a "check issued as an evidence of debt,
although not intended for encashment, has the same effect like any other check" and must thus be held to be
"within the contemplation of BP 22." Once a check is presented for payment, the drawee bank gives it the usual
course whether issued in payment of an obligation or just as a guaranty of an obligation. BP 22 does not appear to
concern itself with what might actually be envisioned by the parties, its primordial intention being to instead
ensure the stability and commercial value of checks as being virtual substitutes for currency. It is a policy that can
easily be eroded if one has yet to determine the reason for which checks are issued, or the terms and conditions
for their issuance, before an appropriate application of the legislative enactment can be made. The gravamen of
the offense under BP 22 is the act of making or issuing a worthless check or a check that is dishonored upon
presentment for payment. The act effectively declares the offense to be one of malum prohibitum. The only valid
query then is whether the law has been breached, i.e., by the mere act of issuing a bad check, without so much
regard as to the criminal intent of the issuer.[29]

Also, in Cruz v. Court of Appeals,[30] we held:

It is now settled that Batas Pambansa Bilang 22 applies even in cases where dishonored checks are issued merely
in the form of a deposit or a guarantee. The enactment in question does not make any distinction as to whether
the checks within its contemplation are issued in payment of an obligation or merely to guarantee the said
obligation. In accordance with the pertinent rule of statutory construction, inasmuch as the law has not made any
distinction in this regard, no such distinction can be made by means of interpretation or application. Furthermore,
the history of the enactment of subject statute evinces the definite legislative intent to make the prohibition all-
embracing, without making any exception from the operation thereof in favor of a guarantee. This intent may be
gathered from the statement of the sponsor of the bill (Cabinet Bill No. 9) which was enacted later into Batas
Pambansa Bilang 22, when it was introduced before the Batasan Pambansa, that the bill was introduced to
discourage the issuance of bouncing checks, to prevent checks, from becoming 'useless scraps of paper' and to
restore respectability to checks, all without distinction as to the purpose of the issuance of the checks. The
legislative intent as above said is made all the more clear when it is considered that while the original text of
Cabinet Bill No. 9, supra, had contained a proviso excluding from the coverage of the law a check issued as a mere
guarantee, the final version of the bill as approved and enacted by the Committee on the Revision of Laws in the
Batasan deleted the abovementioned qualifying proviso deliberately for the purpose of making the enforcement of
the act more effective (Batasan Record, First Regular Session, December 4, 1978, Volume II, pp. 1035-1036).

Consequently, what are important are the facts that the accused had deliberately issued the checks in question to
cover accounts and that the checks were dishonored upon presentment regardless of whether or not the accused
merely issued the checks as a guarantee.[31]
Petitioner invokes our ruling in Magno v. Court of Appeals[32] where the accused therein was acquitted of B.P. Blg.
22 for issuing checks to collateralize an accommodation and not to cover the receipt of actual account or for value.
In Magno, the accused, who was in the process of putting up a car repair shop, was provided with credit facilities
by LS Finance and Management Corporation (LS Finance) to enable him to lease from MANCOR the needed
equipments. As part of their arrangement, LS Finance required a 30% warranty deposit of the "purchase/lease"
value of the equipments to be transacted upon. Accused then asked the LS Finance Vice President Joey Gomez to
look for a third party who could lend him the equivalent amount of the warranty deposit as he did not have such
amount, however, unknown to the accused, it was Corazon Teng (Vice President of MANCOR) who advanced the
deposit in question on condition that the same would be paid as a short term loan at 3% interest. The accused
subsequently issued checks to collateralize an accommodation made by Teng amounting to Twenty Nine Thousand
Seven Hundred Pesos (P29,700.00) as warranty deposit. Subsequently, the said checks bounced; thus the accused
was prosecuted and the lower courts convicted him of B.P. Blg. 22. On a Petition for Review on Certiorari, we
however acquitted the accused and held that the "cash out" made by Teng was not used by the accused who was
just paying rental on the equipments. To charge him for the refund of a "warranty deposit" he did not withdraw,
because it was not his own account and it remained with LS Finance, would be to make him pay an unjust "debt,"
to say the least, since he did not actually receive the amount involved. We also held that this is a scheme whereby
Teng as the supplier of the equipment in the name of Mancor, would be able to sell or lease its goods as in this
case, and at the same time privately finance those who desperately needed petty accommodations as obtaining in
said case; that this modus operandi, in so many instances, victimized unsuspecting businessmen who likewise
needed protection from the law by availing themselves of the deceptively called "warranty deposit," not realizing
that they would fall prey to a leasing equipment under the guise of a lease-purchase agreement, when it was a
scheme designed to skim off a business client.

It bears stressing that Magno was decided after a full-blown trial, and the proof needed to convict the accused was
proof beyond reasonable doubt, which was not established in that case.

On the other hand, herein case is still in the preliminary investigation stage which is merely inquisitorial, and it is
often the only means of discovering the persons who may be reasonably charged with a crime, to enable the fiscal
to prepare his complaint or information.[33] It is not a trial of the case on the merits and has no purpose except
that of determining whether a crime has been committed and whether there is probable cause to believe that the
accused is guilty.[34] It is not the occasion for the full and exhaustive display of the parties' evidence; it is for the
presentation of such evidence only as may engender a well-grounded belief that an offense has been committed
and that the accused is probably guilty thereof.[35] We are in accord with the Justice Secretary's finding that there
is reasonable ground to believe that a violation of B.P. Blg. 22 has been committed by petitioner, thus, we refrain
from prejudging the applicablity or inapplicability of Magno in this case.

Petitioner alleges that at the time she issued the subject checks, she has substantial funds in the bank to cover the
value thereof. This is evidentiary in nature which must be presented during trial more so in the light of the bank
certification that there were no sufficient funds to cover the checks when presented for deposit/payment.

The law itself creates a prima facie presumption of knowledge of insufficiency of funds. Section 2 of B.P. Blg. 22
provides:

Section 2. Evidence of knowledge of insufficient funds. The making, drawing and issuance of a check payment of
which is refused by the drawee bank because of insufficient funds in or credit with such bank, when presented
within ninety (90) days from the date of the check, shall be prima facie evidence of knowledge of such insufficiency
of funds or credit unless such maker or drawer pays the holder thereof the amount due thereon, or makes
arrangements for payment in full by the drawee of such check within five (5) banking days after receiving notice
that such check has not been paid by the drawee.
Such knowledge is legally presumed from the dishonor of the checks for insufficiency of funds.[36] If not rebutted,
it suffices to sustain a conviction.[37]

We also find no merit in petitioner's claim that since the Secretary of Justice absolved her of estafa, she should also
be absolved of violation of B.P. Blg. 22, since both offenses arose from the same subject checks. While deceit and
damage are essential elements in estafa, they are not required in B.P. Blg. 22. As already aforestated, under B.P.
Blg. 22, mere issuance of a check that is dishonored gives rise to the presumption of knowledge on the part of the
drawer that he issued the same without sufficient funds and is hence punishable.

We do not subscribe to petitioner's argument that for Aguilar's rice procurements from respondent, Aguilar had
made substantial payments to respondent through cashier's checks totalling P313,255.00; that despite these
substantial payments, respondent still wanted to collect from petitioner's subject checks the total amount of
P863,110.00; that respondent wanted to collect from both petitioner and Aguilar for the latter's rice procurement.
It is during the trial of this case that evidence may be introduced to prove petitioner's contentions. As of now, it
has been established that when the subject checks were deposited, they were all dishonored.

Furthermore, the allegation of petitioner that if the information for B.P. Blg. 22 would be filed and in the remote
event that petitioner would be found guilty thereof, then the trial court may impose a fine double the amount of
the checks, which fine may amount to millions of pesos; and that this is unjust enrichment on respondent's part at
the expense of petitioner and Aguilar deserves scant consideration. Suffice it to state that the fine that may be
imposed by the court is not awarded to the private complainant. Fine is imposed as a penalty and not as payment
for a specific loss or injury.[38]

In fine, the CA did not commit any error in upholding the findings of the Secretary of Justice that probable cause
exists that the crime of violation of B.P. Blg. 22 has been committed by petitioner.

WHEREFORE, the petition is DENIED. The Decision dated April 26, 2002 and the Resolution dated July 29, 2002 of
the Court of Appeals are hereby AFFIRMED.

Costs against petitioner.

SO ORDERED.

SECOND DIVISION

[ G.R. No. 191404, July 05, 2010 ]

EUMELIA R. MITRA, PETITIONER, VS. PEOPLE OF THE PHILIPPINES AND FELICISIMO S. TARCELO, RESPONDENTS.

DECISION

MENDOZA, J.:

This is a petition for review on certiorari under Rule 45 of the Rules of Court assailing the July 31, 2009
Decision[1] and the February 11, 2010 Resolution of the Court of Appeals (CA) in CA-G.R. CR No. 31740. The subject
decision and resolution affirmed the August 22, 2007 Decision of the Regional Trial Court, Branch 2, Batangas
City (RTC) which, in turn, affirmed the May 21, 2007 Decision of the Municipal Trial Court in Cities, Branch 2,
Batangas City (MTCC).

THE FACTS:

Petitioner Eumelia R. Mitra (Mitra) was the Treasurer, and Florencio L. Cabrera, Jr. (now deceased) was the
President, of Lucky Nine Credit Corporation (LNCC), a corporation engaged in money lending activities.

Between 1996 and 1999, private respondent Felicisimo S. Tarcelo (Tarcelo) invested money in LNCC. As the usual
practice in money placement transactions, Tarcelo was issued checks equivalent to the amounts he invested plus
the interest on his investments. The following checks, signed by Mitra and Cabrera, were issued by LNCC to
Tarcelo.[2]

Bank Date Issued Date of Check Amount Check No.

Security Bank September 15, 1998 January 15, 1999 P 3,125.00 0000045804
-do- September 15, 1998 January 15, 1999 125,000.00 0000045805
-do- September 20, 1998 January 20, 1999 2,500.00 0000045809
-do- September 20, 1998 January 20, 1999 100,000.00 0000045810
-do- September 30, 1998 January 30, 1999 5,000.00 0000045814
-do- September 30, 1998 January 30, 1999 200,000.00 0000045815
-do- October 3, 1998 February 3, 1999 2,500.00 0000045875
-do- October 3, 1998 February 3, 1999 100,000.00 0000045876
 -do- November 17, 1998 February17, 1999 5,000.00 0000046061
-do- November 17, 1998 March 17, 1999 5,000.00 0000046062
-do- November 17, 1998 March 17, 1999 200,000.00 0000046063
-do- November 19, 1998 January 19, 1999 2,500.00 0000046065
-do- November 19, 1998 February19, 1999 2,500.00 0000046066
-do- November 19, 1998 March 19, 1999 2,500.00 0000046067
-do- November 19, 1998 March 19, 1999 100,000.00 0000046068
-do- November 20, 1998 January 20, 1999 10,000.00 0000046070
-do- November 20, 1998 February 20, 1999 10,000.00 0000046071
-do- November 20, 1998 March 20, 1999 10,000.00 0000046072
-do- November 20, 1998 March 20, 1999 10,000.00 0000046073
-do- November 30, 1998 January 30, 1999 2,500.00 0000046075
-do- November 30, 1998 February 28, 1999 2,500.00 0000046076
-do- November 30, 1998 March 30, 1999 2,500.00 0000046077
-do- November 30, 1998 March 30, 1999 100,000.00 0000046078

When Tarcelo presented these checks for payment, they were dishonored for the reason "account closed."
Tarcelo made several oral demands on LNCC for the payment of these checks but he was frustrated. Constrained,
in 2002, he caused the filing of seven informations for violation of Batas Pambansa Blg. 22 (BP 22) in the total
amount of P925,000.00 with the MTCC in Batangas City.[3]

After trial on the merits, the MTCC found Mitra and Cabrera guilty of the charges. The fallo of the May 21, 2007
MTCC Decision[4] reads:

WHEREFORE, foregoing premises considered, the accused FLORENCIO I. CABRERA, JR., and EUMELIA R. MITRAare
hereby found guilty of the offense of violation of Batas Pambansa Bilang 22 and are hereby ORDERED to
respectively pay the following fines for each violation and with subsidiary imprisonment in all cases, in case of
insolvency:

1. Criminal Case No. 43637 - P200,000.00

2. Criminal Case No. 43640 - P100,000.00
3. Criminal Case No. 43648 - P100,000.00
4. Criminal Case No. 43700 - P125,000.00
5. Criminal Case No. 43702 - P200,000.00
6. Criminal Case No. 43704 - P100,000.00
7. Criminal Case No. 43706 - P100,000.00

Said accused, nevertheless, are adjudged civilly liable and are ordered to pay, in solidum, private complainant
Felicisimo S. Tarcelo the amount of NINE HUNDRED TWENTY FIVE THOUSAND PESOS (P925,000.000).

SO ORDERED.

Mitra and Cabrera appealed to the Batangas RTC contending that: they signed the seven checks in blank with no
name of the payee, no amount stated and no date of maturity; they did not know when and to whom those checks
would be issued; the seven checks were only among those in one or two booklets of checks they were made to
sign at that time; and that they signed the checks so as not to delay the transactions of LNCC because they did not
regularly hold office there.[5]

The RTC affirmed the MTCC decision and later denied their motion for reconsideration. Meanwhile, Cabrera died.
Mitra alone filed this petition for review[6] claiming, among others, that there was no proper service of the notice
of dishonor on her. The Court of Appeals dismissed her petition for lack of merit.
Mitra is now before this Court on a petition for review and submits these issues:

1. WHETHER OR NOT THE ELEMENTS OF VIOLATION OF BATAS PAMBANSA BILANG 22 MUST BE PROVED
BEYOND REASONABLE DOUBT AS AGAINST THE CORPORATION WHO OWNS THE CURRENT ACCOUNT WHERE
THE SUBJECT CHECKS WERE DRAWN BEFORE LIABILITY ATTACHES TO THE SIGNATORIES.

2. WHETHER OR NOT THERE IS PROPER SERVICE OF NOTICE OF DISHONOR AND DEMAND TO PAY TO THE
PETITIONER AND THE LATE FLORENCIO CABRERA, JR.

The Court denies the petition.

A check is a negotiable instrument that serves as a substitute for money and as a convenient form of payment in
financial transactions and obligations. The use of checks as payment allows commercial and banking transactions
to proceed without the actual handling of money, thus, doing away with the need to physically count bills and
coins whenever payment is made. It permits commercial and banking transactions to be carried out quickly and
efficiently. But the convenience afforded by checks is damaged by unfunded checks that adversely affect
confidence in our commercial and banking activities, and ultimately injure public interest.

BP 22 or the Bouncing Checks Law was enacted for the specific purpose of addressing the problem of the
continued issuance and circulation of unfunded checks by irresponsible persons. To stem the harm caused by
these bouncing checks to the community, BP 22 considers the mere act of issuing an unfunded check as an offense
not only against property but also against public order.[7] The purpose of BP 22 in declaring the mere issuance of a
bouncing check as malum prohibitum is to punish the offender in order to deter him and others from committing
the offense, to isolate him from society, to reform and rehabilitate him, and to maintain social order.[8] The
penalty is stiff. BP 22 imposes the penalty of imprisonment for at least 30 days or a fine of up to double the
amount of the check or both imprisonment and fine.

Specifically, BP 22 provides:

SECTION 1. Checks Without Sufficient Funds. -- Any person who makes or draws and issues any check to apply on
account or for value, knowing at the time of issue that he does not have sufficient funds in or credit with the
drawee bank for the payment of such check in full upon its presentment, which check is subsequently dishonored
by the drawee bank for insufficiency of funds or credit or would have been dishonored for the same reason had
not the drawer, without any valid reason, ordered the bank to stop payment, shall be punished by imprisonment
of not less than thirty days but not more than one (1) year or by a fine of not less than but not more than double
the amount of the check which fine shall in no case exceed Two Hundred Thousand Pesos, or both such fine and
imprisonment at the discretion of the court.

The same penalty shall be imposed upon any person who, having sufficient funds in or credit with the drawee bank
when he makes or draws and issues a check, shall fail to keep sufficient funds or to maintain a credit to cover the
full amount of the check if presented within a period of ninety (90) days from the date appearing thereon, for
which reason it is dishonored by the drawee bank.

Where the check is drawn by a corporation, company or entity, the person or persons who actually signed the
check in behalf of such drawer shall be liable under this Act.

SECTION 2. Evidence of Knowledge of Insufficient Funds. -- The making, drawing and issuance of a check payment
of which is refused by the drawee because of insufficient funds in or credit with such bank, when presented within
ninety (90) days from the date of the check, shall be prima facie evidence of knowledge of such insufficiency of
funds or credit unless such maker or drawer pays the holder thereof the amount due thereon, or makes
arrangements for payment in full by the drawee of such check within five (5) banking days after receiving notice
that such check has not been paid by the drawee.

Mitra posits in this petition that before the signatory to a bouncing corporate check can be held liable, all the
elements of the crime of violation of BP 22 must first be proven against the corporation. The corporation must first
be declared to have committed the violation before the liability attaches to the signatories of the checks. [9]

The Court finds Itself unable to agree with Mitra's posture. The third paragraph of Section 1 of BP 22 reads:
"Where the check is drawn by a corporation, company or entity, the person or persons who actually signed the
check in behalf of such drawer shall be liable under this Act." This provision recognizes the reality that a
corporation can only act through its officers. Hence, its wording is unequivocal and mandatory - that the person
who actually signed the corporate check shall be held liable for a violation of BP 22. This provision does not
contain any condition, qualification or limitation.

In the case of Llamado v. Court of Appeals,[10] the Court ruled that the accused was liable on the unfunded
corporate check which he signed as treasurer of the corporation. He could not invoke his lack of involvement in the
negotiation for the transaction as a defense because BP 22 punishes the mere issuance of a bouncing check, not
the purpose for which the check was issued or in consideration of the terms and conditions relating to its issuance.
In this case, Mitra signed the LNCC checks as treasurer. Following Llamado, she must then be held liable for
violating BP 22.

Another essential element of a violation of BP 22 is the drawer's knowledge that he has insufficient funds or credit
with the drawee bank to cover his check. Because this involves a state of mind that is difficult to establish, BP 22
creates the prima facie presumption that once the check is dishonored, the drawer of the check gains knowledge
of the insufficiency, unless within five banking days from receipt of the notice of dishonor, the drawer pays the
holder of the check or makes arrangements with the drawee bank for the payment of the check. The service of the
notice of dishonor gives the drawer the opportunity to make good the check within those five days to avert his
prosecution for violating BP 22.

Mitra alleges that there was no proper service on her of the notice of dishonor and, so, an essential element of the
offense is missing. This contention raises a factual issue that is not proper for review. It is not the function of the
Court to re-examine the finding of facts of the Court of Appeals. Our review is limited to errors of law and cannot
touch errors of facts unless the petitioner shows that the trial court overlooked facts or circumstances that
warrant a different disposition of the case[11] or that the findings of fact have no basis on record. Hence, with
respect to the issue of the propriety of service on Mitra of the notice of dishonor, the Court gives full faith and
credit to the consistent findings of the MTCC, the RTC and the CA.

The defense postulated that there was no demand served upon the accused, said denial deserves scant
consideration. Positive allegation of the prosecution that a demand letter was served upon the accused prevails
over the denial made by the accused. Though, having denied that there was no demand letter served on April 10,
2000, however, the prosecution positively alleged and proved that the questioned demand letter was served
upon the accused on April 10, 2000, that was at the time they were attending Court hearing before Branch I of
this Court. In fact, the prosecution had submitted a Certification issued by the other Branch of this Court certifying
the fact that the accused were present during the April 10, 2010 hearing. With such straightforward and
categorical testimony of the witness, the Court believes that the prosecution has achieved what was dismally
lacking in the three (3) cases of Betty King, Victor Ting and Caras - evidence of the receipt by the accused of the
demand letter sent to her. The Court accepts the prosecution's narrative that the accused refused to sign the
same to evidence their receipt thereof. To require the prosecution to produce the signature of the accused on said
demand letter would be imposing an undue hardship on it. As well, actual receipt acknowledgment is not and has
never been required of the prosecution either by law or jurisprudence. [12][emphasis supplied]

With the notice of dishonor duly served and disregarded, there arose the presumption that Mitra and Cabrera
knew that there were insufficient funds to cover the checks upon their presentment for payment. In fact, the
account was already closed.

To reiterate the elements of a violation of BP 22 as contained in the above-quoted provision, a violation exists
where:

1. a person makes or draws and issues a check to apply on account or for value;

2. the person who makes or draws and issues the check knows at the time of issue that he does not have
sufficient funds in or credit with the drawee bank for the full payment of the check upon its presentment;
and

3. the check is subsequently dishonored by the drawee bank for insufficiency of funds or credit, or would
have been dishonored for the same reason had not the drawer, without any valid reason, ordered the
bank to stop payment. [13]

There is no dispute that Mitra signed the checks and that the bank dishonored the checks because the account had
been closed. Notice of dishonor was properly given, but Mitra failed to pay the checks or make arrangements for
their payment within five days from notice. With all the above elements duly proven, Mitra cannot escape the civil
and criminal liabilities that BP 22 imposes for its breach.[14]

WHEREFORE, the July 31, 2009 Decision and the February 11, 2010 Resolution of the Court of Appeals in CA-G.R.
CR No. 31740 are hereby AFFIRMED.

SO ORDERED.

FIRST DIVISION

[ G.R. No. 143231, October 26, 2001 ]

ALBERTO LIM, PETITIONER, VS. PEOPLE OF THE PHILIPPINES, RESPONDENT.

DECISION

DAVIDE, JR., C.J.:

In his petition for review on certiorari filed in this case petitioner seeks to set aside the decision [1] of the Court of
Appeals of 24 April 2000 in CA-G.R. No. 21016 which affirmed in toto the decision[2] of the Regional Trial Court of
Quezon City, Branch 90, finding petitioner Alberto Lim (hereafter ALBERTO) guilty of twelve (12) counts of violation
of Batas Pambansa Blg. 22, otherwise known as the Bouncing Checks Law.

This case stemmed from the filing on 15 July 1993 of twelve (12) informations for violations of B.P. 22 against
ALBERTO before the Regional Trial Court of Quezon City. The informations were docketed as Criminal Cases Nos.
Q-93-46489 to 93-46500. The information in Criminal Case No. Q-93-46489 reads as follows:

The undersigned accuses Alberto Lim of a Violation of Batas Pambansa Bilang 22, committed as follows:
That on or about the month of May 1992, Quezon City, Philippines, the said accused ALBERTO LIM did then and
there willfully, unlawfully and feloniously make or draw and issue to ROBERT T. LU to apply on account or for value
METROBANK Check No. 206033 postdated November 6, 1992 payable to the order of CASH in the amount of
P250,000.00, Philippine Currency, said accused well knowing that at the time of issue he did not have sufficient
funds in or credit with the drawee bank for payment of such check in full upon its presentment, which check when
presented for payment was subsequently dishonored by the drawee bank for Account Closed and despite receipt
of notice of such dishonor, said accused failed to pay said complainant the amount of said check or to make
arrangement for full payment of the same within five (5) banking days after receiving said notice.

CONTRARY TO LAW.[3]

The other informations are similarly worded except for the number of the checks and their amounts and dates of
issue. They are hereunder itemized as follows:

Criminal Case No. Check No. Postdated Amount

Q-93-46490 206031 5 November 1992 P250,000.00

Q-93-46491 206022 5 November 1992 P300,000.00
Q-93-46492 206023 6 November 1992 P300,000.00
Q-93-46493 206056 6 November 1992 P15,000.00
Q-93-46494 206055 6 November 1992 P15,000.00
Q-93-46495 206066 7 November 1992 P12,500.00
Q-93-46496 206064 6 November 1992 P12,500.00
Q-93-46497 206030 5 November 1992 P200,000.00
Q-93-46498 206061 5 November 1992 P10,000.00
Q-93-46499 206062 5 November 1992 P12,500.00
Q-93-46500 206054 5 November 1992 P15,000.00[4]

Upon motion of the prosecution, the twelve cases were consolidated and jointly tried.

At arraignment, ALBERTO pleaded not guilty.[5]

The evidence for the prosecution shows that sometime in the month of May 1992, ALBERTO issued to private
complainant Robert Lu (hereafter, ROBERT), for purpose of rediscounting, sixty-four (64) Metrobank checks,
including the twelve (12) checks subject of the informations filed in these cases. The checks were signed by
ALBERTO in the presence of ROBERT at the latter's office located at the Elco Building, 202 E. Rodriguez Boulevard,
Quezon City. Upon the respective dates of maturity, each of the twelve (12) checks were deposited by ROBERT at
the Roosevelt Branch of the United Coconut Planters Bank, which, however, were all dishonored by the drawee
bank for the reason "Account Closed." ROBERT then immediately informed ALBERTO of the fact of dishonor and
demanded payment of the amounts of the checks. ALBERTO explained to ROBERT that he encountered some
financial difficulties and would settle the account in two or three weeks time. When ALBERTO failed to make good
on his promise, ROBERT endorsed the case to his lawyer who sent a demand letter dated 29 December 1992 to
ALBERTO. ALBERTO received the demand letter on 9 January 1993. For failure to settle his account within the
seven days grace period provided in the demand letter, ALBERTO caused the filing of the twelve informations
subject of the instant case.

For his defense, ALBERTO alleged that sometime in 1989, Sarangani Commercial, Inc. (hereafter Sarangani Inc.)
issued to ROBERT seven checks as payment for its obligation to the latter in the amount of P1,600,000. ALBERTO,
as guarantor, affixed his signature in all of the seven checks. When the said seven checks bounced, ALBERTO issued
more than three hundred checks, including the twelve checks which were the subject of the present case, as
replacements. He further alleged that ROBERT had already received the total amount of P4,021,000 from the
proceeds of the replacements checks, which amount is more than the total obligation of Sarangani, Inc. which was
accommodated by him. Thus, the principal of the said obligation as well as all interest thereof, if any, have already
been fully covered by said payments. It is therefore the contention of ALBERTO that with the full payment of the
accommodated obligation, the twelve checks subject of the present case have no valuable consideration.

On 10 October 1996, the trial court, rejecting the contentions of the defense, rendered a decision finding ALBERTO
guilty of violation of B.P. Blg. 22 in each of the twelve cases. The dispositive part of the decision reads:

WHEREFORE, the accused Alberto Lim, being guilty beyond reasonable doubt of committing the crimes charged in
the informations in these twelve (12) cases for Violation of B.P. Blg. 22, is hereby sentenced: to suffer six (6)
months of imprisonment in each of these twelve (12) cases Criminal Cases Nos. Q-93-46489 to Q-93-46500,
(inclusive) and to pay to the private complainant Robert Lu the twelve (12) checks in question in these cases in the
total amount of ONE MILLION, THREE HUNDRED NINETY TWO THOUSAND, FIVE HUNDRED PESOS (P1,392, 500.00)
with interest thereon at 12% per annum from the date of the filing of these cases, July 15, 1993, until the said
amount is fully paid, with costs.

SO ORDERED.

Not satisfied, ALBERTO filed a motion for reconsideration which was denied by the trial court. [6] On appeal, the
Court of Appeals affirmed in toto the decision of the trial court, hence, the present petition raising the following
arguments:

1. The petitioner is not guilty of violating Batas Pambansa Bilang 22 as the subject checks lack valuable
consideration.

2. In any event, the factual setting of the present case warrants leniency in the imposition of criminal
penalty on petitioner.[7]

We find petition without merit.

The conviction of ALBERTO must be sustained. The law enumerates the elements of B.P. Blg. 22 to be (1) the
making, drawing and issuance of any check to apply for account or for value; (2) the knowledge of the maker,
drawer, or issuer that at the time of issue he does not have sufficient funds in or credit with the drawee bank for
the payment of the check in full upon its presentment; and (3) the subsequent dishonor of the check by the
drawee bank for insufficiency of funds or credit or dishonor for the same reason had not the drawer, without any
valid cause, ordered the bank to stop payment.[8]

The issuance of the twelve checks and its subsequent dishonor were admitted by ALBERTO. His defense rests
solely on the payment of the obligation by Sarangani, Inc. including its interests, which was allegedly
accommodated by him. ALBERTO insists that as a guarantor, he merely issued the twelve checks to replace the
bad checks that were previously issued by Sarangani, Inc., and considering that the total amount of the checks
encashed by ROBERT have exceeded the amount of the bad checks including the interest, then the twelve checks
already lack valuable consideration.

The issue of whether the twelve checks were issued merely to accommodate the obligation of Sarangani, Inc. as
well as the issue of payment of the said obligation are factual issues which are best determined by the trial court.
Well-settled is the rule that the factual findings and conclusions of the trial court and the Court of Appeals are
entitled to great weight and respect, and will not be disturbed on appeal in the absence of any clear showing that
the trial court overlooked certain facts or circumstances which would substantially affect the disposition of the
case.[9] The jurisdiction of this court over cases elevated from the Court of Appeals is confined to the review of
errors of law ascribed to the Court of Appeals whose findings of fact are conclusive, absent any showing that the
findings by the respondent court are entirely devoid of any substantiation on record. [10]

In the instant case, we see no reason to disturb the factual findings of the trial court which has been affirmed in
toto by the Court of Appeals. ALBERTO's allegation that the checks were issued to replace or accommodate the
bad checks of Sarangani, Inc. is not worthy of belief. The seven(7) checks issued by Sarangani, Inc. were all dated
and dishonored in September 1989. The twelve (12) checks including the other fifty-two (52) checks were all dated
November 1992, hence the same cannot be a replacement of the bad checks which were dishonored as far back as
three years ago.

In addition, even the corresponding amount of the checks negates said conclusion. The total amount of the seven
(7) checks, representing the obligations of Sarangani, Inc., is only P1,600,000, [11] while the sum total of the twelve
(12) checks and the remaining fifty-two checks is P7,455,000.[12] If we add the P7,455,000 to the value of the more
than three hundred checks, which ALBERTO alleged to have been issued also in payment of the said obligation
then the total amount of all the replacement checks will be P111,476,000.

Moreover, records show that the twelve(12) checks and the other fifty-two (52) checks were issued sometime May
1992 and all postdated 1992,[13] whereas the 330 checks which were submitted to prove the fact of payment were
all encashed before the issuance of the said checks. Thus, if full payment was made as early as July 22, 1991, the
date of the last check of the 330 checks, why would ALBERTO issue the twelve (12) checks and the fifty-two (52)
checks, if not for a consideration other than to answer for an obligation which was already paid. Hence, the 330
checks submitted by the defense did not prove that the twelve checks were not issued for valuable consideration.
On the contrary, it supported the version of the prosecution that the checks were issued for rediscounting and not
as replacements for the bad checks of Sarangani, Inc., as claimed by ALBERTO.

Further, if indeed it were true as claimed by ALBERTO that the indebtedness covered by the checks sued upon has
been paid, the petitioner should have redeemed or taken the checks back in the ordinary course of business. But
the same checks remained in the possession of the complainant who asked for the satisfaction of the obligations
involved when said checks became due, without the petitioner heeding the demand for him to redeem his checks
which bounced.[14]

Hence, without evidentiary support, ALBERTO's claim that the twelve checks lacks valuable consideration must
fail. Upon issuance of the said checks, it is presumed, in the absence of evidence to the contrary, that the same
was issued for valuable consideration. B.P. Blg. 22 punishes the issuance of a bouncing check. It is also worthy to
note that it is not the non-payment of an obligation which the law punishes, but the act of making and issuing a
check that is dishonored upon presentment for payment. [15] The purpose for which it was issued and the terms and
conditions relating to its issuance are immaterial. What is primordial is that such issued checks were worthless and
the fact of its worthlessness is known to appellant at the time of their issuance, a required element under B.P. Blg.
22. This is because the mere act of issuing a worthless check is malum prohibitum.[16]

ALBERTO's alternative prayer for the modification of penalty by deleting the sentence of imprisonment and, in lieu
thereof, that a fine in an increased amount be imposed must likewise be denied.

His reliance in Administrative Circular No. 12-2000 is misplaced. As clarified in Administrative Circular No. 13-2001:

The clear tenor and intention of Administrative Circular No. 12-2000 is not to remove imprisonment as an
alternative penalty, but to lay down a rule of preference in the application of the penalties provided for in B.P. Blg.
22.

The pursuit of this purpose clearly does not foreclose the possibility of imprisonment for violators of B.P. Blg. 22.
Neither does it defeat the legislative intent behind the law.

Thus, Administrative Circular No. 12-2000 establishes a rule of preference in the application of the penal provisions
of B.P. Blg. 22 such that where the circumstances of both the offense and the offender clearly indicate good faith
or a clear mistake of fact without taint of negligence, the imposition of a fine alone should be considered as the
more appropriate penalty. Needless to say, the determination of whether the circumstances warrant the
imposition of a fine alone rests solely upon the Judge. Should the Judge decide that imprisonment is the more
appropriate penalty, Administrative Circular No. 12-2000 ought not be deemed a hindrance.

In this case, we agree with the Court of Appeals in upholding the trial court's imposition of imprisonment.
ALBERTO is not a first time offender. He has previously been convicted of 50 counts of violation of B.P. Blg. 22 in
Criminal Cases Nos. Q-93-44583 to Q-93-44632, and was placed on probation.[17]

However, despite his prior conviction, he claims that the same shall not be taken against him. He argues that:

It bears emphasis that the sixty-four postdated checks which include the subject checks in the subject decision,
were issued by the petitioner to Mr. Lu all at the same time to cover the unpaid obligation of Sarangani.
Undeniably, should only one single complaint was filed for all the sixty-four checks which bounced, then all of the
cases should have been brought up and heard in only one branch of the Regional Trial Court of Quezon City. But, as
fate have it, two criminal complaints were separately filed by Mr. Lu which complaints were eventually heard buy
two branches of the said court, to wit: Branch 90 and Branch 103.

With the aforesaid scenario, petitioner had been put into a bind. Thusly, when the joint decision [Annex "G"] was
promulgated by RTC-Branch 103, petitioner seasonably applied for probation, which application was granted by
the court, after the latter has determined to its satisfaction the qualification of petitioner. Nonetheless,
petitioner's worries are far from over because when the decision of RTC-Branch 90 was subsequently promulgated,
petitioner was left with no recourse but to appeal. Needless to state, petitioner can no longer apply for probation
because of his earlier availment in the first complaint of Mr. Lu. This, notwithstanding the fact that all the sixty-
four checks were issued by the petitioner to Mr. Lu at the same time and meant to cover an obligation of like
nature. Whereas, had there been only one complaint filed for all the said checks, there should have been only one
judgment of conviction and petitioner could have had fully availed of the benefits of the Probation Law [PD 968 as
amended].It is, therefore pathetic to even contemplate on the prospect of petitioner languishing in jail only
because of the fact that the sixty-four bum checks he issued were divided into two criminal complaints. [18]

The foregoing arguments must be rejected. His allegation that the checks subject of that previous conviction were
part of the sixty-four (64) checks which he issued at the same time to cover one and the same obligation, is not
true. A reading of the decision in Criminal Cases Nos. Q93-44583 to Q93-44632 will show that there are two
accused namely, ALBERTO and William Tan,[19] since the checks subject of those cases were issued and signed by
both accused. Also, the amount of each of the fifty (50) checks ranges from P122,595.77 to P546,114.00 while the
sixty-four (64) checks including the twelve checks were issued and signed solely by ALBERTO, the amount of which
ranges from P10,000 to P300,000. Hence the fifty (50) checks subject of his prior conviction and the twelve (12)
checks subject of the present case are different from each other.

His act of issuing the fifty (50) and the sixty-four (64) bouncing checks is a serious offense. To impose only fine
would be to depreciate the seriousness of his malefactions. The importance of arresting the proliferation of
bouncing checks can not be overemphasized.

Besides, it is of no moment even if the fifty (50) checks were part of the sixty-four (64) checks. Each act of drawing
and issuing a bouncing check constitutes a violation of B.P. Blg. 22. The rule that there is only one offense when
the offender is moved by one criminal intent or purpose does not apply because in a statutory offense or malum
prohibitum malice or criminal intent is immaterial.[20] The mischief of circulating unfunded checks is injurious not
only to the payee or holder of such checks but to society in general, and the business community, in particular.
The nefarious practice "can very well pollute the channels of trade and commerce, injure the banking system and
eventually hurt the welfare of society and the public interest."[21]

WHEREFORE, the instant petition is DENIED. The decision of the Court of Appeals upholding the decision of the
Regional Trial Court, Branch 90, Quezon, City in Criminal Cases Nos. Q-93-46489 to 46500 is hereby AFFIRMED.

SO ORDERED.

SECOND DIVISION

[ G.R. No. 129764, March 12, 2002 ]

GEOFFREY F. GRIFFITH, PETITIONER, VS. HON. COURT OF APPEALS, RTC JUDGE EDWIN A. VILLASOR, MTC JUDGE
MANUEL D.L. VILLAMAYOR AND PHELPS DODGE PHILS., INC., RESPONDENTS.

DECISION

QUISUMBING, J.:

Assailed in this petition is the decision[1] dated March 14, 1997 of the Court of Appeals in CA-G.R. SP No. 19621,
affirming the Regional Trial Court's decision[2] finding petitioner Geoffrey F. Griffith guilty on two counts for
violation of Batas Pambansa Blg. 22 (the Bouncing Checks Law), and sentencing him to suffer imprisonment for a
period of six months on each count, to be served consecutively. Also assailed is the Court of Appeals'
resolution[3] dated July 8, 1997 denying petitioner's motion for reconsideration.

The facts are as follows:

In 1985, Phelps Dodge Philippines, Inc. leased its lot and factory building to Lincoln Gerard, Inc. for a term of two
years at a monthly rental of P75,000. When Lincoln Gerard, Inc. incurred rental arrearages, Geoffrey F. Griffith, in
his capacity as president of Lincoln Gerard, Inc., issued the following checks:

Far East Bank and Trust Co. Check No. 06B-C-075065, dated April 15, 1986 for P100,000.00, payable to Phelps
Dodge Phils. Inc.; and

Far East Bank and Trust Co. Check No. 06B-C-075066, dated May 1, 1986 for P115,442.65, payable to Phelps Dodge
Phils. Inc.[4]
The voucher for these checks contained the following instruction:

These checks are not to be presented without prior approval from this Corporation to be given not later than May
30, 1986.

Also written on the face of the voucher was the following note:

However, if written approval of Lincoln Gerard, Inc. is not given before May 30, 1986, Phelps Dodge, Phils. shall
present the cheques for payment. This is final and irrevocable.[5]
On May 29, 1986, Griffith wrote Phelps Dodge not to present the said checks for payment on May 30, 1986
because they could not be funded due to a four-week labor strike that had earlier paralyzed the business
operations of Lincoln Gerard.[6]

Previously, in a letter dated May 20, 1986, Phelps Dodge, through its treasurer Ricardo R. Manarang, advised
Lincoln Gerard that it was transferring the contents of the Lincoln Gerard warehouse in the leased premises since a
new tenant was moving in. Phelps Dodge told Lincoln Gerard that its properties would be placed "in our
compound and under our custody."[7]

On June 2, 1986,[8] when no further communication was received from Lincoln Gerard, Phelps Dodge presented
the two checks for payment but these were dishonored by the bank for having been drawn against insufficient
funds. Three days later, Phelps Dodge sent a demand letter to Lincoln Gerard, apprising Griffith of the dishonor of
the checks and asking him to fund them within the time prescribed by law.[9] Lincoln Gerard still failed to fund the
checks but Griffith sent a letter to Phelps Dodge, explaining Lincoln's inability to fund said checks due to the
strike.[10] Subsequently, on June 19, 1986, Phelps Dodge notified Lincoln Gerard that its properties would be
foreclosed. Phelps Dodge went ahead with the foreclosure and auction sale on June 20, 1986, [11] despite Lincoln
Gerard's protest.[12]

On May 10, 1988, two informations for violation of B.P. 22 docketed as Criminal Cases Nos. 73260 and 73261 were
filed against petitioner before the Regional Trial Court. The motion for reconsideration filed by Griffith was
dismissed, and so were his petition for review filed before the Department of Justice and later on his motion to
quash filed before the RTC. Griffith then filed a petition for certiorari before the Court of Appeals that was likewise
denied.

Meanwhile, on November 6, 1987, Lincoln Gerard lodged a complaint for damages docketed as Civil Case No.
55276 before the Regional Trial Court of Pasig, Branch 69, against Phelps Dodge and the notary public who
conducted the auction sale.[13] On July 19, 1991, the trial court ruled that the foreclosure and auction sale were
invalid, but applied the proceeds thereof to Lincoln Gerard's arrearages. It also ordered Phelps Dodge to return to
Lincoln Gerard the P1,072,586.88 as excess.[14] The court stated:

The evidence shows that defendant corporation had already received the amount of P254,600 as a result of the
invalid auction sale. The latter amount should be applied to the rental in arrears owed by the plaintiff corporation
to the defendant corporation (P301,953.12). Thus, the plaintiff corporation still owes the defendant corporation
the amount of P47,953.12 as rental arrears. In order to get the true and real damages that defendant corporation
should pay the plaintiff corporation, the balance of the rental arrears should be deducted from the amount of
P1,120,540.00, the total value of the items belonging to the plaintiff corporation and sold by the defendant
corporation at a public auction. The net result is P1,072,586.88. [15]
On appeal, the Court of Appeals affirmed the RTC decision, and this became final and executory. [16]

On August 25, 1994, the criminal cases against Griffith pending before the RTC were remanded to the
Metropolitan Trial Court (MeTC), in view of Republic Act No. 7691 that expanded the jurisdiction of the MeTC.

On July 25, 1995, the MeTC, in Criminal Cases Nos. 41678 and 41679, found Griffith guilty on both counts for
violation of B.P. 22,[17] and sentenced him to suffer imprisonment for six months on each count, to be served
consecutively. Thus:

WHEREFORE, premises considered, this court finds the accused GEOFFREY F. GRIFFITH, GUILTY OF VIOLATION of
Section 1 of Batas Pambansa Blg. 22, otherwise known as the Bouncing Checks Law on two counts.

The accused is therefore hereby sentence (sic) to suffer imprisonment for a period of SIX (6) MONTHS in Criminal
Case No. 41678 and another SIX (6) MONTHS in Criminal Case No. 41679, both of which shall be served
consecutively.

Considering that the civil aspect of these cases has already been decided by the Regional Trial Court Branch 69,
Pasig, regardless of its finality, of which this court has no record, this Court shall not resolve the same because they
are either "Res Judicata" or "Pendente Litis".

SO ORDERED.[18]
On appeal, the RTC affirmed in toto the lower court's decision.

Petitioner then appealed his conviction to the Court of Appeals. In a consolidated decision dated March 14, 1997,
the appellate court ruled:

WHEREFORE, absent any prima facie merit in it, the Petition for Review under consideration is hereby DENIED DUE
COURSE. Costs against petitioner.

SO ORDERED. [19]
Petitioner moved for a reconsideration of said decision but this was denied by the appellate court in a resolution
dated July 8, 1997.[20]Hence, this petition seeking reversal of the CA decision and resolution on the criminal cases,
anchored on the following grounds:

I. THE COURT OF APPEALS' DECISION DATED 14 MARCH 1997 AND ITS RESOLUTION DATED 8 JULY 1997 ARE
CONTRARY TO THE RULING IN MAGNO V. COURT OF APPEALS, WHERE THIS HONORABLE COURT LAID
DOWN THE DOCTRINE THAT A CONVICTION UNDER B.P. 22 CANNOT BE BASED ON AN INVERSE
APPLICATION OF THE ELEMENT OF KNOWLEDGE.

II. THE COURT OF APPEALS' DECISION DATED 14 MARCH 1997 AND ITS RESOLUTON DATED 8 JULY 1997
RESULT IN AN UNCONSTITUTIONAL APPLICATION OF THE PROVISIONS OF B.P. 22.

III. THE COURT OF APPEALS' DECISION DATED 14 MARCH 1997 AND ITS RESOLUTION DATED 8 JULY 1997
STATING THAT PAYMENT THROUGH NOTARIAL FORECLOSURE BEFORE THE FILING OF THE CRIMINAL
INFORMATIONS UNDER B.P. 22 DOES NOT ABATE CRIMINAL LIABILITY, ARE ERRONEOUS AND RESULT IN
THE INIQUITOUS INTERPRETATION OF THE LAW.

IV. THE COURT OF APPEALS' DECISION DATED 14 MARCH 1997 AND ITS RESOLUTION DATED 8 JULY 1997 ARE
INCONSISTENT WITH ITS OWN FINDINGS AND CONCLUSIONS IN A RELATED CASE (CA-G.R. NO. 20980)
INVOLVING THE SAME PETITIONER AND RESPONDENT AND THE SAME TRANSACTION SUBJECT OF THIS
CASE.

V. THE COURT OF APPEALS' DECISION DATED 14 MARCH 1997 AND ITS RESOLUTION DATED 8 JULY 1997
WHICH RELIED ON THE RULING IN THE CASE OF LIM V. COURT OF APPEALS ON VENUE TO JUSTIFY ITS
FINDING THAT PETITIONER HAS COMMITTED TWO COUNTS OF VIOLATION OF B.P. 22, ARE CONTRAY TO
LAW AND JURISPRUDENCE. [21]

Petitioner points out that he communicated to Phelps Dodge through a note on the voucher attached to the
checks, the fact that said checks were unfunded at the time of their issuance. Petitioner contends that this good
faith on his part negates any intent to put worthless checks in circulation, which is what B.P. 22 seeks to penalize.
Moreover, as regards the second check that was postdated, petitioner contends that there could not be any
violation of B.P. 22 with said check since the element of knowledge of insufficiency of funds is absent. Petitioner
could not have known at the time of its issuance that the postdated check would be dishonored when presented
for payment later on.

Petitioner argues that his conviction in this case would be violative of the constitutional proscription against
imprisonment for failure to pay a debt, since petitioner would be punished not for knowingly issuing an unfunded
check but for failing to pay an obligation when it fell due.

Petitioner also asserts that the payment made by Lincoln Gerard through the proceeds of the notarial foreclosure
and auction sale extinguished his criminal liability.
On the other hand, private respondent contends that all the elements that comprise violation of B.P. 22 are
present in this case. Moreover, the payment in this case was made beyond the five-day period, counted from
notice of dishonor, provided by the law and thus did not extinguish petitioner's criminal liability.

For the State, the Solicitor General contends that Lincoln Gerard assured Phelps Dodge, through the note on the
voucher attached to the checks, that said checks would be covered with sufficient funds by May 30, 1996, which
assurance was "final and irrevocable".[22] The OSG also argues that B.P. 22 does not distinguish between a check
that is postdated and one that is not, for as long as the drawer issued the checks with knowledge of his insufficient
funds and the check is dishonored upon presentment.

There is no unconstitutional punishment for failure to pay a debt in this case, since according to the OSG, what B.P.
22 penalizes is the act of making and issuing a worthless check that is dishonored upon presentation for payment,
not the failure to pay a debt.[23]

The OSG asserts that the supposed payment that resulted from Phelps Dodge's notarial foreclosure of Lincoln
Gerard's properties could not bar prosecution under B.P. 22, since damage or prejudice to the payee is immaterial.
Moreover, said payment was made only after the violation of the law had already been committed. It was made
beyond the five-day period, from notice of dishonor of the checks, provided under B.P. 22.

The principal issue in this case is whether petitioner Geoffrey F. Griffith, president of Lincoln Gerard, Inc., has been
erroneously convicted and sentenced for violation of the Bouncing Checks Law (Batas Pambansa Blg. 22). His
conviction on two counts and sentence of six months imprisonment for each count by the respondent MTC Judge
Manuel Villamayor was upheld by respondent RTC Judge Edwin Villasor and affirmed by the respondent Court of
Appeals. But private respondent appears to have collected more than the value of the two checks in question
before the filing in the trial court of the case for violation of B.P. 22. Hence, petitioner insists he has been
wrongfully convicted and sentenced. To resolve this issue, we must determine whether the alleged payment of
the amount of the checks two years prior to the filing of the information for violation of B.P. 22 justifies his
acquittal.

Whether there is an unconstitutional application of the provisions of B.P. 22 in this case, however, does not appear
to us an appropriate issue for consideration now. A purported constitutional issue raised by petitioner may only
be resolved if essential to the decision of a case and controversy. But here we find that this case can be resolved
on other grounds. Well to remember, courts do not pass upon constitutional questions that are not the very lis
mota of a case.[24]

In the present case, the checks were conditionally issued for arrearages on rental payments incurred by Lincoln
Gerard, Inc. The checks were signed by petitioner, the president of Lincoln Gerard. It was a condition written on
the voucher for each check that the check was not to be presented for payment without clearance from Lincoln
Gerard, to be given at a specific date. However, Lincoln Gerard was unable to give such clearance owing to a labor
strike that paralyzed its business and resulted to the company's inability to fund its checks. Still, Phelps Dodge
deposited the checks, per a note on the voucher attached thereto that if written approval was not received from
Lincoln Gerard before May 30, 1986, the checks would be presented for payment. "This is final and irrevocable",
according to the note that was written actually by an officer of Phelps Dodge, not by petitioner. The checks were
dishonored and Phelps Dodge filed criminal cases for violation of B.P. 22 against petitioner. But this filing took
place only after Phelps Dodge had collected the amount of the checks, with more than one million pesos to spare,
through notarial foreclosure and auction sale of Lincoln Gerard's properties earlier impounded by Phelps Dodge.

In our view, considering the circumstances of the case, the instant petition is meritorious.

The Bouncing Checks Law "was devised to safeguard the interest of the banking system and the legitimate public
checking account user."[25] It was not designed to favor or encourage those who seek to enrich themselves through
manipulation and circumvention of the purpose of the law.[26] Noteworthy, in Administrative Circular No. 12-2000,
this Court has expressed a policy preference for fine as penalty in cases of B.P. 22 violations rather than
imprisonment to "best serve the ends of criminal justice."

Moreover, while the philosophy underlying our penal system leans toward the classical school that imposes
penalties for retribution,[27]such retribution should be aimed at "actual and potential wrongdoers". [28] Note that in
the two criminal cases filed by Phelps Dodge against petitioner, the checks issued were corporate checks that
Lincoln Gerard allegedly failed to fund for a valid reason duly communicated to the payee. Further, it bears
repeating that Phelps Dodge, through a notarial foreclosure and auction that were later on judicially declared
invalid, sold Lincoln Gerard's property for cash amounting to P1,120,540[29] to satisfy Phelps Dodge claim for
unpaid rentals. Said property was already in Phelps Dodge's custody earlier, purportedly because a new tenant
was moving into the leased premises. The obligation of Lincoln Gerard to Phelps Dodge for said rentals was only
P301,953.12.[30] Thus, by resorting to the remedy of foreclosure and auction sale, Phelps Dodge was able to collect
the face value of the two checks, totalling P215,442.65. In fact, it impounded items owned by Lincoln Gerard
valued far in excess of the debt or the checks. This was the situation when, almost two years after the auction
sale, petitioner was charged with two counts of violation of B.P. 22. By that time, the civil obligation of Lincoln
Gerard, Inc. to Phelps Dodge Phils. Inc. was no longer subsisting, though respondent Court of Appeals calls the
payment thereof as involuntary.[31] That the money value of the two checks signed by petitioner was already
collected, however, could not be ignored in appreciating the antecedents of the two criminal charges against
petitioner. Because of the invalid foreclosure and sale, Phelps Dodge was ordered to pay or return P1,072,586.88
to Lincoln Gerard, per decision of the Regional Trial Court of Pasig, Branch 69, which became final after it was
affirmed by the appellate court. We cannot, under these circumstances, see how petitioner's conviction and
sentence could be upheld without running afoul of basic principles of fairness and justice. For Phelps Dodge has, in
our view, already exacted its proverbial pound of flesh through foreclosure and auction sale as its chosen remedy.

That is why we find quite instructive the reasoning of the Court of Appeals earlier rendered in deciding the petition
for Certiorari and Injunction, Griffith v. Judge Milagros Caguioa, CA-G.R. SP No. 20980, in connection with the
petitioner's motion to quash the charges herein before they were tried on the merits.[32]

Said Justice C. Francisco with the concurrence of Justices Reynato S. Puno and Asaali S. Isnani:

"…We are persuaded that the defense has good and solid defenses against both charges in Criminal Cases Nos.
73260-61. We can even say that the decision rendered in Branch 69 in Civil Case No. 55276, well-written as it is,
had put up a formidable obstacle to any conviction in the criminal cases with the findings therein made that the
sale by public auction of the properties of Lincoln was illegal and had no justification under the facts; that also the
proceeds realized in the said sale should be deducted from the account of Lincoln with Phelps, so that only
P47,953.12 may only be the rentals in arrears which Lincoln should pay, computed at P301,953.12 less
P254,600.00; that out of what had happened in the case as the trial court had resolved in its decision, Phelps is
duty bound to pay Lincoln in damages P1,072,586.88 from which had been deducted the amount of P47,953.12
representing the balance of the rental in arrearages; and that consequently, there is absolutely no consideration
remaining in support of the two (2) subject checks."[33]
Petitioner's efforts to quash in the Court of Appeals the charges against him was frustrated on procedural grounds
because, according to Justice Francisco, appeal and not certiorari was the proper remedy. [34] In a petition for
certiorari, only issues of jurisdiction including grave abuse of discretion are considered, but an appeal in a criminal
case opens the entire case for review.

While we agree with the private respondent that the gravamen of violation of B.P. 22 is the issuance of worthless
checks that are dishonored upon their presentment for payment, we should not apply penal laws
mechanically.[35] We must find if the application of the law is consistent with the purpose of and reason for the
law. Ratione cessat lex, et cessat lex. (When the reason for the law ceases, the law ceases.) It is not the letter
alone but the spirit of the law also that gives it life. This is especially so in this case where a debtor's
criminalization would not serve the ends of justice but in fact subvert it. The creditor having collected already
more than a sufficient amount to cover the value of the checks for payment of rentals, via auction sale, we find
that holding the debtor's president to answer for a criminal offense under B.P. 22 two years after said collection, is
no longer tenable nor justified by law or equitable considerations.
In sum, considering that the money value of the two checks issued by petitioner has already been effectively paid
two years before the informations against him were filed, we find merit in this petition. We hold that petitioner
herein could not be validly and justly convicted or sentenced for violation of B.P. 22. Whether the number of
checks issued determines the number of violations of B.P. 22, or whether there should be a distinction between
postdated and other kinds of checks need no longer detain us for being immaterial now to the determination of
the issue of guilt or innocence of petitioner.

WHEREFORE, the petition is hereby GRANTED. The decision of the Court of Appeals in CA-G.R. No. 19621 dated
March 14, 1997, and its resolution dated July 8, 1997, are REVERSED and SET ASIDE. Petitioner Geoffrey F. Griffith
is ACQUITTED of the charges of violation of B.P. 22 in Criminal Cases Nos. 41678 and 41679.

Costs de officio.

SO ORDERED.

SECOND DIVISION

[ G.R. No. 96132, June 26, 1992 ]

ORIEL MAGNO, PETITIONER, VS. HONORABLE COURT OF APPEALS AND PEOPLE OF THE PHILIPPINES,
RESPONDENTS.

DECISION

PARAS, J.:

This is an appeal by certiorari under Rule 45 of the Revised Rules of Court, from the decision* of the respondent
Court of Appeals which affirmed in toto the decision of the Regional Trial Court of Quezon City, Branch 104 finding
the accused petitioner, guilty of violations of Batas Pambansa Blg. 22, in Criminal Cases Q-35693 to 35696 before
they were elevated on appeal to the respondent appellate Court under CA-G.R. CR No. 04889.

The antecedent facts and circumstances of the four (4) counts of the offense charged, have been clearly illustrated,
in the Comment of the Office of the Solicitor General as official counsel for the public respondent, thus:

Petitioner was in the process of putting up a car repair shop sometime in April 1983, but he did not have complete
equipment that could make his venture workable. He also had another problem, and that while he was going into
this entrepreneurship, he lacked funds with which to purchase the necessary equipment to make such business
operational. Thus, petitioner, representing Ultra Sources International Corporation, approached Corazon Teng,
(private complainant) Vice President of Mancor Industries (hereinafter referred to as Mancor) for his needed car
repair service equipment of which Mancor was a distributor. (Rollo, pp. 40-41)

Having been approached by petitioner on his predicament, who fully bared that he had no sufficient funds to buy
the equipment needed, the former (Corazon Teng) referred Magno to LS Finance and Management Corporation
(LS Finance for brevity) advising its Vice-President, Joey Gomez, that Mancor was willing and able to supply the
pieces of equipment needed if LS Finance could accommodate petitioner and provide him credit facilities. (Ibid., p.
41)

The arrangement went through on condition that petitioner has to put up a warranty deposit equivalent to thirty
per centum (30%) of the total value of the pieces of equipment to be purchased, amounting to P29,790.00. Since
petitioner could not come up with such amount, he requested Joey Gomez on a personal level to look for a third
party who could lend him the equivalent amount of the warranty deposit, however, unknown to petitioner, it was
Corazon Teng who advanced the deposit in question, on condition that the same would be paid as ashort term
loan at 3% interest. (Ibid., p. 41)

The specific provision in the Leasing Agreement, reads:

"1.1. WARRANTY DEPOSIT - Before or upon delivery of each item of Equipment, the Lessee shall deposit with the
Lessor such sum or sums specified in Schedule A to serve as security for the faithful performance of its obligations.

"This deposit shall be refunded to the Lessee upon the satisfactory completion of the entire period of Lease,
subject to the conditions of clause 1.12 of this Article." (Ibid., p. 17)

As part of the arrangement, petitioner and LS Finance entered into a leasing agreement whereby LS Finance would
lease the garage equipments and petitioner would pay the corresponding rent with the option to buy the same.
After the documentation was completed, the equipment were delivered to petitioner who in turn issued a
postdated check and gave it to Joey Gomez who, unknown to the petitioner, delivered the same to Corazon Teng.
When the check matured, petitioner requested through Joey Gomez not to deposit the check as he (Magno) was
no longer banking with Pacific Bank.

To replace the first check issued, petitioner issued another set of six (6) postdated checks. Two (2) checks dated
July 29, 1983 were deposited and cleared while the four (4) others, which were the subject of the four counts of
the aforestated charges subject of the petition, were held momentarily by Corazon Teng, on the request of Magno
as they were not covered with sufficient funds. These checks were a) Piso Bank Check Nos. 006858, dated August
15, 1983, 006859 dated August 28, 1983 and 006860 dated September 15, 1983, all in the amount of P5,038.43
and No. 006861 dated September 28, 1983, in the amount of P10,076.87. (Ibid., pp. 42 & 43)

Subsequently, petitioner could not pay LS Finance the monthly rentals, thus it pulled out the garage equipments. It
was then on this occasion that petitioner became aware that Corazon Teng was the one who advanced the
warranty deposit. Petitioner with his wife went to see Corazon Teng and promised to pay the latter but the
payment never came and when the four (4) checks were deposited they were returned for the reason "account
closed." (Ibid., p. 43)

After joint trial before the Regional Trial Court of Quezon City, Branch 104, the accused-petitioner was convicted
for violations of BP Blg. 22 on the four (4) cases, as follows:

"x x x finding the accused-appellant guilty beyond reasonable doubt of the offense of violations of B.P. Blg. 22 and
sentencing the accused to imprisonment for one year in each Criminal Case Nos. Q-35693, Q-35695 and Q-35696
and to pay to complainant the respective amounts reflected in subject checks." (Ibid., pp. 25, 27)

Reviewing the above and the affirmation of the above-stated decision of the court a quo, this Court is intrigued
about the outcome of the checks subject of the cases which were intended by the parties, the petitioner on the
one hand and the private complainant on the other, to cover the "warranty deposit" equivalent to the 30%
requirement of the financing company. Corazon Teng is one of the officers of Mancor, the supplier of the
equipment subject of the Leasing Agreement subject of the high financing scheme undertaken by the petitioner as
lessee of the repair service equipment, which was arranged at the instance of Mrs. Teng from the very beginning
of the transaction.

By the nature of the "warranty deposit" amounting to P29,790.00 corresponding to 30% of the "purchase/lease"
value of the equipments subject of the transaction, it is obvious that the "cash out" made by Mrs. Teng was not
used by petitioner who was just paying rentals for the equipment. It would have been different if petitioner opted
to purchase the pieces of equipment on or about the termination of the lease-purchase agreement in which case
he had to pay the additional amount of the warranty deposit which should have formed part of the purchase price.
As the transaction did not ripen into a purchase, but remained a lease with rentals being paid for the loaned
equipment, which were pulled out by the Lessor (Mancor) when the petitioner failed to continue paying possibly
due to economic constraints or business failure, then it is lawful and just that the warranty deposit should not be
charged against the petitioner.

To charge the petitioner for the refund of a "warranty deposit" which he did not withdraw as it was not his own
account, it having remained with LS Finance, is to even make him pay an unjust "debt", to say the least, since
petitioner did not receive the amount in question. All the while, said amount was in the safekeeping of the
financing company, which is managed, supervised and operated by the corporation officials and employees of LS
Finance. Petitioner did not even know that the checks he issued were turned over by Joey Gomez to Mrs. Teng,
whose operation was kept from his knowledge on her instruction. This fact alone evoke suspicion that the
transaction is irregular and immoral per se, hence, she specifically requested Gomez not to divulge the source of
the "warranty deposit".

It is intriguing to realize that Mrs. Teng did not want the petitioner to know that it was she who "accommodated"
petitioner's request for Joey Gomez, to source out the needed funds for the "warranty deposit". Thus it unfolds the
kind of transaction that is shrouded with mystery, gimmickry and doubtful legality. It is in simple
language, a scheme whereby Mrs. Teng as the supplier of the equipment in the name of her corporation, Mancor,
would be able to "sell or lease" its goods as in this case, and at the same time, privately financing those who
desperately need petty accommodations as this one. This modus operandi has in so many instances victimized
unsuspecting businessmen, who likewise need protection from the law, by availing of the deceptively called
"warranty deposit" not realizing that they also fall prey to leasing equipment under the guise of a lease-purchase
agreement when it is a scheme designed to skim off business clients.

This maneuvering has serious implications especially with respect to the threat of the penal sanction of the law in
issue, as in this case. And, with a willing court system to apply the full harshness of the special law in question,
using the "mala prohibita" doctrine, the noble objective of the law is tainted with materialism and opportunism in
the highest degree.

This angle is bolstered by the fact that since the petitioner or lessee referred to above in the lease agreement
knew that the amount of P29,790.00 subject of the cases, were mere accommodation-arrangements with
somebody thru Joey Gomez, petitioner did not even attempt to secure the refund of said amount from LS Finance,
notwithstanding the agreement provision to the contrary. To argue that after the termination of the lease
agreement, the warranty deposit should be refundable in full to Mrs. Teng by petitioner when he did not cash out
the "warranty deposit" for his official or personal use, is to stretch the nicety of the alleged law (B.P. No. 22)
violated.

For all intents and purposes, the law was devised to safeguard the interest of the banking system and the
legitimate public checking account user. It did not intend to shelter or favor nor encourage users of the system to
enrich themselves through manipulations and circumvention of the noble purpose and objective of the law. Least
should it be used also as a means of jeopardizing honest-to-goodness transactions with some color of "get-rich"
scheme to the prejudice of well-meaning businessmen who are the pillars of society.

Under the utilitarian theory, the "protective theory" in criminal law, "affirms that the primary function of
punishment is the protective (sic) of society against actual and potential wrongdoers." It is not clear whether
petitioner could be considered as having actually committed the wrong sought to be punished in the offense
charged, but on the other hand, it can be safely said that the actuations of Mrs. Carolina Teng amount to that of
potential wrongdoers whose operations should also be clipped at some point in time in order that the unwary
public will not be falling prey to such a vicious transaction. (Aquino, The Revised Penal Code, 1987 Edition, Vol. I, p.
11)

Corollary to the above view, is the application of the theory that "criminal law is founded upon that moral
disapprobation x x x of actions which are immoral, i.e., which are detrimental (or dangerous) to those conditions
upon which depend the existence and progress of human society. This disapprobation is inevitable to the extent
that morality is generally founded and built upon a certain concurrence in the moral opinions of all. x x x That
which we call punishment is only an external means of emphasizing moral disapprobation: the method of
punishment is in reality the amount of punishment." (Ibid., p. 11, citing People v. Roldan Zaballero, CA 54 O.G.
6904. Note also Justice Pablo's view in People v. Piosca and Peremne, 86 Phil. 31).

Thus, it behooves upon a court of law that in applying the punishment imposed upon the accused, the objective of
retribution of a wronged society, should be directed against the "actual and potential wrongdoers." In the instant
case, there is no doubt that petitioner's four (4) checks were used to collateralize an accommodation, and not to
cover the receipt of an actual "account or credit for value" as this was absent, and therefore petitioner should not
be punished for mere issuance of the checks in question. Following the aforecited theory, in petitioner's stead the
"potential wrongdoer", whose operation could be a menace to society, should not be glorified by convicting the
petitioner.

While in case of doubt, the case should have been resolved in favor of the accused, however, by the open
admission of the appellate court below, even when the ultimate beneficiary of the "warranty deposit" is of
doubtful certainty, the accused was convicted, as shown below:

"Nor do We see any merit in appellant's claim that the obligation of the accused to complainant had been
extinguished by the termination of the leasing agreement -- by the terms of which the warranty deposit advanced
by complainant was refundable to the accused as lessee -- and that as the lessor L.S. Finance neither made any
liquidation of said amount nor returned the same to the
accused, it may be assumed that the amount was already returned to the complainant. For these allegations, even
if true, do notchange the fact, admitted by appellant and established by the evidence, that the four checks were or
iginally issued on account or forvalue. And as We have already observed, in order that there may be a conviction
under the first paragraph of Section 2 of BP Blg. 22 -- with respect to the element of said offense that the check
should have been made and issued on account or for value -- it is sufficient, all the other elements of the offense
being present, that the check must have been drawn and issued in payment of an obligation.

"Moreover, even granting, arguendo, that the extinguishments, after the issuance of the checks, of the obligation
in consideration of which the checks were issued, would have resulted in placing the case at bar beyond the
purview of the prohibition in Section 1 of BP Big. 22, there is no satisfactory proof that there was such an
extinguishment in the present case. Appellee aptly points out thatappellant had not adduced
any direct evidence to prove that the amount advanced by thecomplainant to cover the warranty depositmust alre
ady have been returned to her." (Rollo, p. 30)

It is indubitable that the respondent Court of Appeals even disregarded the cardinal rule that the accused is
presumed innocent until proven guilty beyond reasonable doubt. On the contrary, the same court even expected
the petitioner-appellant to adduce evidence to show that he was not guilty of the crime charged. But how can he
produce documents showing that the warranty deposit has already been taken back by Mrs. Teng when she is an
officer of Mancor which has interest in the transaction, besides being personally interested in the profit of her
side-line. Thus, even if she may have gotten back the value of the accommodation, she would still pursue collecting
from the petitioner since she had in her possession the checks that "bounced".

That the court a quo merely relied on the law, without looking into the real nature of the warranty deposit is
evident from the following pronouncement:

"And the trial court concluded that there is no question that the accused violated BP Blg. 22, which is a special
statutory law, violations of which are mala prohibita. The court relied on the rule that in cases of mala prohibita,
the only inquiry is whether or not the law had been violated, proof of criminal intent not being necessary for the
conviction of the accused, the acts being prohibited for reasons of public policy and the defenses of good faith and
absence of criminal intent being unavailing in prosecutions for said offenses." (Ibid., p. 26)

The crux of the matter rests upon the reason for the drawing of the postdated checks by the petitioner, i.e.,
whether they were drawn or issued "to apply on account or for value", as required under Section 1 of BP Blg. 22.
When viewed against the following definitions of the catch-terms "warranty" and "deposit", for which the
postdated checks were issued or drawn, all the more, the alleged crime could not have been committed by
petitioner:

"a) Warranty - A promise that a proposition of fact is true. A promise that certain facts are truly as they are
represented to be and that they will remain so; x x x." (Black's Law Dictionary, Fifth Edition, (1979) p. 1423)

A cross-reference to the following term shows:

"Fitness for Particular Purpose: - Where the seller at the time of contracting has reason to know any particular
purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment to select or
furnish suitable goods, there is, unless excluded or modified, an implied warranty that the goods shall be fit for
such purpose." (Ibid., p. 573)

"b) Deposit: - Money lodged with a person as an earnest or security for the performance of some contract, to be
forfeited if the depositor fails in his undertaking. It may be deemed to be part payment and to that extent may
constitute the purchaser the actual owner of the estate.

"To commit to custody, or to lay down; to place; to put. To lodge for safe-keeping or as a pledge to intrust to the
care of another.

"The act of placing money in the custody of a bank or banker, for safety or convenience, to be withdrawn at the
will of the depositor or under rules and regulations agreed on. Also, the money so deposited, or the credit which
the depositor receives for it. Deposit, according to its commonly accepted and generally understood among
bankers and by the public, includes not only deposits payable on demand and for which certificates, whether
interest-bearing or not, may be issued, payable on demand, or on certain notice, or at a fixed future time." (Ibid.,
pp. 394-395)

Furthermore, the element of "knowing at the time of issue that he does not have sufficient funds in or credit with
the drawee bank for the payment of such check in full upon its presentment, which check is subsequently
dishonored by the drawee bank for insufficiency of funds or credit or would have been dishonored for the same
reason x x x" is inversely applied in this case. From the very beginning, petitioner never hid the fact that he did not
have the funds with which to put up the warranty deposit and as a matter of fact, he openly intimated this to the
vital conduit of the transaction, Joey Gomez, to whom petitioner was introduced by Mrs. Teng. It would have been
different if this predicament was not communicated to all the parties he dealt with regarding the lease agreement
the financing of which was covered by L.S. Finance Management.

WHEREFORE, the appealed decision is REVERSED and the accused-petitioner is hereby ACQUITTED of the crime
charged.

SO ORDERED.

FIRST DIVISION

[ G.R. No. 144887, November 17, 2004 ]

ALFREDO RIGOR, PETITIONER, VS. PEOPLE OF THE PHILIPPINES, RESPONDENT.

DECISION

AZCUNA, J.:
This is a petition for review on certiorari of the decision of the Court of Appeals, in CA-G.R. CR No. 18855, which
affirmed the decision of the Regional Trial Court of Pasig, Branch 163, in Criminal Case No. 86025, convicting
petitioner Alfredo Rigor of violation of Batas Pambansa Blg. 22 (the Bouncing Checks Law), and imposing upon him
the penalty of imprisonment for six (6) months and ordering him to restitute to the Rural Bank of San Juan the sum
of P500,000 and to pay the costs.

The Information[1] against petitioner reads:

That on or about the 16th day of November 1989 in the Municipality of San Juan, Metro Manila, Philippines and
within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully
and feloniously make or draw and issue to Rural Bank of San Juan, Inc. thru its loan officer Carlos N. Garcia, a
postdated check to apply on account or for value the check described below:

Check No. : 165476

Drawn against : Associated Bank, Tarlac Branch
In the Amount of : P500,000.00
Dated : February 16, 1990
Payable to : Rural Bank of San Juan

said accused well knowing that at the time of issue on 16 November 1989, he has already insufficient funds or
credit with the drawee bank for the payment in full of the face amount of such check and that as of 2 February
1990 his bank accounts were already closed and that check when presented for payment from and after the date
thereof, was subsequently dishonored for the reason "Account Closed" and despite receipt of notice of such
dishonor, the accused failed to pay said payee the face amount of said check or to make arrangement for full
payment thereof during the period of not less than five (5) banking days after receiving notice.
When arraigned, petitioner pleaded not guilty. Thereafter, trial on the merits ensued.

The facts, as narrated by the Court of Appeals, are as follows:

The prosecution evidence was furnished by witnesses Edmarcos Basangan of Rural Bank of San Juan (RBSJ) and
Esteban Pasion, employee of the Associated Bank. It was shown that on November 16, 1989, appellant (petitioner
herein) applied for a commercial loan from the Rural Bank of San Juan, Inc., at N. Domingo St., San Juan, Metro
Manila in the sum of P500,000.00 (Exh. "A"). He signed a promissory note stating that an interest of 24% per
annum from its date will be charged on the loan (Exh. "B"). The loan was approved by RBSJ's Bank Manager
Melquecedes de Guzman and Controller Agustin Uy. A cashier's check with RBSJ No. 2023424 in the amount of
P487,000.00, net proceeds of the loan, was issued to appellant (Exh. "C"). Appellant endorsed, then encashed the
check with RBSJ Teller Eleneth Cruz, who stamped thereon the word "paid" (Exh. "C-4"). After appellant received
the proceeds, he issued an undated check, Associated Bank Check No. 165476, Tarlac Branch, in the amount of
P500,000, payable to RBSJ (Exh. "D").

It was not the bank policy for a borrower to apply for a loan, obtain its approval and its proceeds on the same day.
Appellant's case was a special one considering that he is the "kumpare" of the President of RBSJ and he is well-
known to all the bank's directors since he, like them, comes from Tarlac.

Appellant failed to pay his loan upon its maturity on December 16, 1989. He personally asked de Guzman for
a two-month extension and advised RBSJ to date to February 16, 1990 his Associated Bank check no. 165476.
Failing anew to pay, he asked for another two-month extension or up to April 16, 1990. Both requests de Guzman
granted. On April 16, 1990, appellant still failed to pay his loan. Basangan and his co-employee, Carlos Garcia,
went to Tarlac to collect from appellant the amount of the loan. Appellant's written request for another 30-day
extension was denied by de Guzman who instead, sent him a formal demand letter dated April 25, 1990.

On May 25, 1990, Associated Bank check no. 165476 was deposited with PS Bank, San Juan Branch. The check was
later returned with the words "closed account" stamped on its face. Associated Bank employee PASION declared
that appellant's Current Account No. 1022-001197-9 with Associated Bank had been closed since February 2,
1990. Appellant's balance under the bank's statement of account as of November 16, 1989 was only P859.
The most appellant had on his account was P40,000 recorded on November 19, 1989 (Exh. "K").

Basangan and Garcia, in Tarlac, advised appellant of the dishonor of his check. Appellant wrote Atty. Joselito Lim,
RBSJ Chairman of the Board, about the loan and arrangements as to the schedule of his payment. His letter was
referred to de Guzman, who, in turn, sent to him another demand letter dated September 17, 1990. The letter
informed him of the dishonor of his check. De Guzman required him to take the necessary step for the early
settlement of his obligation. He still refused to pay.

Appellant denied the charge. He claimed that on November 16, 1989, Agapito Uy and his sister Agnes Angeles
proposed to him that he secure a loan from the RBSJ for P500,000. P200,000 of it will be for him and the
P300,000 will go to Uy and to his sister to pay unpaid loans of borrowers in their "side banking" activities. For the
approval of his loan, Uy told him that appellant can put up his four-door Mercedes Benz as collateral for the
P200,000 loan. The P300,000 will have no collateral. Uy also told him the he (Uy) has complete control of the
bank and his Mercedes Benz will be enough collateral for the P500,000.

Appellant agreed to the proposal. He signed a blank loan application form and a promissory note plus a chattel
mortgage for his Mercedes Benz. Thereafter, he was told to come back in two days. Uy gave him two Premiere
Bank checks worth P100,000 each. He gave one check to his brother Efren Rigor and the other to his sister-in-law
for encashment in Tarlac. He issued to Uy a personal check for P500,000 undated. This check was deposited in the
bank for encashment in the later part of May, 1990 but it bounced. When demand was made for him to pay his
loan, he told Uy to get his Mercedes Benz as payment for P200,000 but Uy refused. Uy wanted him to pay the
whole amount of P500,000.[2]
On July 8, 1994, the trial court rendered judgment against petitioner, the dispositive portion of which reads:

WHEREFORE, foregoing premises considered, this Court finds accused Alfredo Rigor guilty beyond reasonable
doubt of the crime of Violation of Section 1 of Batas Pambansa Blg. 22 and there being no mitigating or aggravating
circumstance on record, imposes upon him the penalty of imprisonment for six (6) months and to restitute to the
Rural Bank of San Juan the sum of P500,000.00 and to pay the costs. [3]
The trial court stated the reasons for petitioner's conviction, thus:

In the case at bar, accused admitted having issued Associated Bank Check No. 165476 in the amount of
P500,000.00. the check was undated when issued. Records, however, show that it was issued on 16 November
1989 but as it appear[s] now it is dated 16 February 1990. The probable reason must be because upon the
maturity of his loan on 16 December 1989, accused asked for extension of two (2) months to pay the same. And
the expiration of that two (2) months period is 16 February 1990. Nevertheless, Exhibit "K" for the prosecution
including its submarkings show that the highest outstanding amount in the current account of accused with the
Associated Bank, Tarlac Branch for the month of November 1989, the month Rigor issued aforesaid check, is only
about P40,000.00. Hence, Rigor has no sufficient deposit in the bank to cover the amount of P500,000.00 when he
issued Check No. 165476. Therefore, Rigor knowingly issued the same he having no sufficient funds in or credit
with the drawee bank in violation of section 1 of [B.P.] Blg. 22.

The defense of the accused that the amount of loan he secured from the Rural Bank of San Juan is only
P200,000.00 is of no moment. The fact is he admitted having issued Associated Bank Check No. 165476 in the
amount of P500,000.00 and upon its deposit for encashment, the same was dishonored for reason account
closed.[4]
Petitioner appealed his conviction to the Court of Appeals, which affirmed the trial court's decision. The
dispositive portion of the appellate court's decision reads:

WHEREFORE, the appealed decision is AFFIRMED with the modification that the reference to lack of mitigating or
aggravating circumstances should be deleted and disregarded.[5]
Hence, this petition for review on certiorari.

Petitioner raises the following:

1) Absent the element of knowingly issuing a worthless check entitles the petitioner to acquittal;
Without proof that accused actually received a notice of dishonor, a prosecution for violation of the
2)
Bouncing Checks Law cannot prosper;
The Pasig Court below had no jurisdiction to try and decide the case for violation of Batas Pambansa
3)
Bilang 22.[6]
Petitioner contends that he did not violate Batas Pambansa Bilang 22 because he told the officers of the
complainant bank from the very beginning that he did not have sufficient funds in the bank; he was merely enticed
by Agustin Uy, the bank's managing director and comptroller, to obtain the instant loan where he received only
P200,000, while Uy took P300,000; and his check was partly used to collateralize an accommodation in favor of Uy
in the amount of P300,000.

The contention is without merit.

Petitioner is charged with violation of Section 1 of Batas Pambansa Bilang 22, thus:

SECTION 1.Checks without sufficient funds.-- Any person who makes or draws and issues any check to apply on
account or for value, knowing at the time of issue that he does not have sufficient funds in or credit with the
drawee bank for the payment of such check in full upon its presentment, which check is subsequently dishonored
by the drawee bank for insufficiency of funds or credit or would have been dishonored for the same reason had
not the drawer, without any valid reason, ordered the bank to stop payment, shall be punished by imprisonment
of not less than thirty days but not more than one (1) year or by a fine of not less than but not more than double
the amount of the check which fine shall in no case exceed Two hundred thousand pesos, or both such fine and
imprisonment at the discretion of the court.
The elements of the offense are: (1) Making, drawing, and issuance of any check to apply on account or for value;
(2) knowledge of the maker, drawer, or issuer that at the time of issue he does not have sufficient funds in or
credit with the drawee bank for the payment of the check in full upon its presentment; and (3) subsequent
dishonor of the check by the drawee bank for insufficiency of funds or credit, or dishonor of the check for the same
reason had not the drawer, without any valid cause, ordered the bank to stop payment. [7]

As found by the Regional Trial Court and the Court of Appeals, all the aforementioned elements are present in this
case.

The evidence shows that on November 16, 1989, petitioner applied [8] for a loan in the amount of P500,000 with
the Rural Bank of San Juan and on the same day, he issued an undated Associated Bank Check No. 165476[9] worth
P500,000 payable to Rural Bank of San Juan in connection with the loan, which check was later dated February 16,
1990.[10] The check was thus issued to apply for value.[11]This shows the presence of the first element of the
offense.

The presence of the second element of the offense is shown by petitioner's admission [12] that he knew of the
insufficiency of his funds in the drawee bank when he issued the check and he allegedly did not hide the fact from
the officials of the Rural Bank of San Juan.

The Court of Appeals correctly ruled, thus:

x x x

Knowledge involves a state of mind difficult to establish. We hold that appellant's admission of the insufficiency of
his fund at the time he issued the check constitutes the very element of "knowledge" contemplated in Sec. 1 of BP
22. The prima facie presumption of knowledge required in Sec. 2, Ibid., does not apply because (a) the check was
presented for payment only on May 25, 1990 or beyond the 90-day period, which expired on May 16, 1990,
counted from the maturity date of the check on February 16, 1990 and (b) an actually admitted knowledge of a
fact needs no presumption.

While it is true that if a check is presented beyond ninety (90) days from its due date, there is no more
presumption of knowledge by the drawer that at the time of issue his check has no sufficient funds, the
presumption in this case is supplanted by appellant's own admission that he did not hide the fact that he had no
sufficient funds for the check. In fact, it appears that when he authorized RBSJ to date his check on February 16,
1990, his current account was already closed two weeks earlier, on February 2, 1990. [13]
Petitioner, however, argues that since the officers of the bank knew that he did not have sufficient funds, he has
not violated Batas Pambansa Bilang 22.

Assuming arguendo that the payee had knowledge that he had insufficient funds at the time he issued the check,
such knowledge by the payee is immaterial as deceit is not an essential element of the offense under Batas
Pambansa Bilang 22.[14] The gravamen of the offense is the issuance of a bad check; hence, malice and intent in
the issuance thereof are inconsequential.[15]

Moreover, the cited case of Magno v. Court of Appeals,[16] which resulted in the acquittal of the accused therein, is
inapplicable to petitioner as the facts of said case are different. In Magno, the bounced checks were issued to
cover a warranty deposit in a lease contract, where the lessor-supplier was also the financier of the deposit.[17] It
was a modus operandi whereby the supplier of the goods is also able to sell or lease the same goods at the same
time privately financing those in desperate need so they may be accommodated.[18] The Court therein held:

To charge the petitioner for the refund of a "warranty deposit" which he did not withdraw as it was not his own
account, it having remained with LS Finance, is to even make him pay an unjust "debt," to say the least, since
petitioner did not receive the amount in question. All the while, said amount was in the safekeeping of the
financing company, which is managed, supervised and operated by the corporation officials and employees of LS
Finance. Petitioner did not even know that the checks he issued were turned over by Joey Gomez to Mrs. Teng,
whose operation was kept from his knowledge on her instruction. This fact alone evoke suspicion that the
transaction is irregular and immoral per se, hence, she specifically requested Gomez not to divulge the source of
the "warrant deposit."

It is intriguing to realize that Mrs. Teng did not want the petitioner to know that it was she who "accommodated"
petitioner's request for Joey Gomez, to source out the needed funds for the "warranty deposit." Thus it unfolds
the kind of transaction that is shrouded with mystery, gimmickry and doubtful legality. It is in simple language, a
scheme whereby Mrs. Teng as the supplier of the equipment in the name of her corporation, Mancor, would be
able to "sell or lease" its goods as in this case, and at the same time, privately financing those who desperately
need petty accommodations as this one. This modus operandi has in so many instances victimized unsuspecting
businessmen, who likewise need protection from the law, by availing of the deceptively called "warranty deposit"
not realizing that they also fall prey to leasing equipment under the guise of a lease purchase agreement when it is
a scheme designed to skim off business clients.[19]
This case, however, involves an ordinary loan transaction between petitioner and the Rural Bank of San Juan
wherein petitioner issued the check certainly to be applied to the payment of his loan since the check and the loan
have the same value of P500,000. Whether petitioner agreed to give a portion of the proceeds of his loan to
Agustin Uy, an officer of complainant bank, to finance Uy's and his (petitioner) sister's alleged "side-banking"
activity, such agreement is immaterial to petitioner's liability for issuing the dishonored check under Batas
Pambansa Bilang 22.

Lozano v. Martinez[20] states:

The gravamen of the offense punished by BP 22 is the act of making and issuing a worthless check or a check that
is dishonored upon its presentation for payment. It is not the non-payment of an obligation which the law
punishes. The law is not intended or designed to coerce a debtor to pay his debt. The thrust of the law is to
prohibit, under pain of penal sanctions, the making of worthless checks and putting them in circulation. Because of
its deleterious effects on the public interest, the practice is proscribed by the law. The law punishes the act not as
an offense against property, but an offense against public order.
People v. Nitafan[21] held that to require that the agreement surrounding the issuance of checks be first looked into
and thereafter exempt such issuance from the provisions of Batas Pambansa Bilang 22 on the basis of such
agreement or understanding would frustrate the very purpose for which the law was enacted.

Further, the presence of the third element of the offense is shown by the fact that after the check was deposited
for encashment, it was dishonored by Associated Bank for reason of "closed account" as evidenced by its Check
Return Slip.[22] Despite receipt of a notice of dishonor from complainant bank, petitioner failed to pay his
obligation.

Petitioner next contends that he did not receive a notice of dishonor, the absence of which precludes criminal
prosecution.

The contention is likewise of no merit.

The notice of dishonor of a check may be sent to the drawer or maker by the drawee bank, the holder of the
check, or the offended party either by personal delivery or by registered mail. [23] The notice of dishonor to the
maker of a check must be in writing.[24]

In this case, prosecution witness Edmarcos Basangan testified that after petitioner's check was dishonored, he and
co-employee Carlos Garcia went to petitioner's residence in Tarlac to inform him about it. Thereafter, petitioner
wrote a letter dated June 28, 1990 to Atty. Joselito Lim, RBSJ chairman of the Board of Directors, proposing a
manner of paying the loan. The letter was referred to the bank manager who sent petitioner another demand
letter[25] dated September 17, 1990 through registered mail.[26] Said letter informed petitioner of the dishonor of
his check for the reason of account closed, and required him to settle his obligation, thus:

xxx

September 17, 1990

Mr. Alfredo Rigor

Victoria, Tarlac

Dear Mr. Rigor,

Please be informed that the check dated February 16, 1990, that you issued purportedly for the payment of your
loan, which has already become due and demandable in the sum of PESOS: Five Hundred Thousand Pesos Only
(P500,000.00) was dishonored on February 16, 1990 (should be May 25, 1990) for the reason Account Closed (AC).

We trust that you will take the necessary step for the early settlement of your obligation to us.

Very truly yours,

MELQUECEDES DE GUZMAN
The transcript of records[27] shows that petitioner admitted knowledge of the dishonor of his check through a
demand letter sent to him. Hence, petitioner cannot pretend that he did not receive a notice of dishonor of his
check.

Lastly, petitioner contends that the Regional Trial Court of Pasig had no jurisdiction over this case since no proof
has been offered that his check was issued, delivered, dishonored or that knowledge of insufficiency of funds
occurred in the Municipality of San Juan, Metro Manila.
The contention is untenable.

As regards venue of a criminal action, Section 15, paragraph (a), of Rule 110 of the 2000 Revised Rules of Criminal
Procedure, which reflects the old rule,[28] provides:

Sec. 15. Place where action is to be instituted.

(a) Subject to existing laws, the criminal action shall be instituted and tried in the court of the municipality or
territory where the offense was committed or where any of its essential ingredients occurred. (Emphasis
supplied.)
Violations of Batas Pambansa Bilang 22 are categorized as transitory or continuing crimes.[29] In such crimes, some
acts material and essential to the crimes and requisite to their consummation occur in one municipality or territory
and some in another, in which event, the court of either has jurisdiction to try the cases, it being understood that
the first court taking cognizance of the case excludes the other.[30]Hence, a person charged with a transitory crime
may be validly tried in any municipality or territory where the offense was in part committed. [31]

The evidence clearly shows that the undated check was issued and delivered at the Rural Bank of San Juan, Metro
Manila[32] on November 16, 1989, and subsequently the check was dated February 16, 1990 thereat. On May 25,
1990, the check was deposited with PS Bank, San Juan Branch, Metro Manila. [33] Thus, the Court of Appeals
correctly ruled:

Violations of B.P. 22 are categorized as transitory or continuing crimes. A suit on the check can be filed in any of
the places where any of the elements of the offense occurred, that is, where the check is drawn, issued, delivered
or dishonored. x x x

The information at bar effectively charges San Juan as the place of drawing and issuing. The jurisdiction of courts
in criminal cases is determined by the allegations of the complaint or information. Although, the check was
dishonored by the drawee, Associated Bank, in its Tarlac Branch, appellant has drawn, issued and delivered it at
RBSJ, San Juan. The place of issue and delivery was San Juan and knowledge, as an essential part of the offense,
was also overtly manifested in San Juan. There is no question that crimes committed in November, 1989 in San
Juan are triable by the RTC stationed in Pasig. In short both allegation and proof in this case sufficiently vest
jurisdiction upon the RTC in Pasig City. [34]
WHEREFORE, the petition is DENIED and the assailed Decision of the Court of Appeals, in CA-G.R. CR No. 18855, is
hereby AFFIRMED. Costs against petitioner.

SO ORDERED.

SECOND DIVISION

[ G.R. No. 167461, February 19, 2008 ]

VICKY MOSTER, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

QUISUMBING, J.:

This petition assails the Decision[1] dated October 29, 2004 of the Court of Appeals in CA-G.R. CR No. 27595,
affirming with modification the Decision[2] dated August 28, 2002 of the Regional Trial Court (RTC) of Caloocan City,
Branch 124. The Court of Appeals found petitioner Vicky L. Moster guilty on two counts for violation of Batas
Pambansa Blg. 22 (B.P. Blg. 22),[3] otherwise known as the Bouncing Checks Law. She was sentenced to pay, in
addition to the fines imposed with subsidiary imprisonment in case of insolvency, P273,345, representing the two
unpaid checks subject of this case. Also assailed is the Resolution[4] dated March 16, 2005 of the appellate court
denying petitioner's motion for reconsideration.

The antecedent facts, as culled from the findings of the trial and appellate courts, are as follows:

According to complainant Adriana Presas, who is engaged in the rediscounting business, on or about August 1995,
petitioner obtained from her a loan of P450,000, for which the petitioner issued as payment three postdated
PhilBank checks, as follows:

Check No. 026137 dated October 31, 1995 amounting to P94,257.00;

Check No. 026138 dated October 31, 1995 amounting to P188,514.00;
Check No. 026124 dated December 31, 1995 amounting to P84,831.00.[5]
The three checks were all payable to cash. Presas testified she did not deposit the checks on their due dates upon
petitioner's request and assurance that they would be replaced with cash. When she could not wait any longer,
Presas deposited Check Nos. 026138 and 026124 in her Westmont Bank account, sometime in January 1996 and
March 1996, respectively, only to be notified later that the checks were dishonored because the account had been
closed. Presas said she did not deposit Check No. 026137 after she agreed to petitioner's request to withhold its
deposit as it had not yet been funded. After receiving notice that Check Nos. 026138 and 026124 had been
dishonored, Presas immediately informed petitioner thereof and demanded payment for the value of the checks.
This demand, however, went unheeded.

In a letter dated January 14, 1997, Presas through counsel, demanded from petitioner the settlement of P367,602,
representing the total value of the three checks, within five days from receipt. Petitioner, however, did not
comply. Thus, three Informations for violation of B.P. Blg. 22, docketed as Criminal Case Nos. 178240, 178241 and
178242, were filed against petitioner in Branch 49, Metropolitan Trial Court (MeTC), Caloocan City. The
Informations were similarly worded except with respect to the check numbers, the dates and amounts of the
checks,[6] as follows:

That sometime in the month of August 1995 in Caloocan City, Metro Manila, Philippines and within the jurisdiction
of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously make
and issue Check No. 026138 drawn against PHILBANK in the amount of P188,514.00 dated October 31, 1995 to
apply for value in favor of ADRIANA PRESAS well knowing at the time of issue that she has no sufficient fund in or
credit with the drawee bank for the payment of such check in full upon its presentment, which check was
subsequently dishonored for the reason ACCOUNT CLOSED and with intent to defraud, failed and still fails to pay
the said complainant the amount of P188,514.00 despite receipt of notice from the drawee bank that said check
has been dishonored and had not been paid.

CONTRARY TO LAW.[7]
When arraigned, petitioner pleaded not guilty.

At the trial, Alfredo S. Daza, Branch Manager of PhilBank, identified the three subject checks as PhilBank checks
drawn against the account of petitioner. He also testified that only Check Nos. 026138 and 026124 were presented
to the bank for clearing, and that these were dishonored for the reason "Account Closed." Daza showed a certified
true copy of a computer printout, showing that petitioner's account under Account Number 1053-0463-2 had a
temporary overdraft or negative balance of P3,301.04 as of November 22, 1995, for which reason the account was
closed. Daza explained that issuing a check without sufficient funds was against bank policy, and when an account
holder issues an unfunded check, the bank has the prerogative to close the account.

Petitioner, for her part, testified that sometime in August 1994, she got from Presas, by way of checks
rediscounting, her first loan for P60,000, secured by her Isuzu vehicle. After obtaining additional loan, her total
loan amounted to P150,000, but because of the interest, it ballooned to P375,345. According to petitioner, the
three PhilBank checks she issued were the payment for the aforementioned loan. After Check Nos. 026138 and
026124 bounced, she replaced them with Asiatrust Bank Check No. 0446323 dated February 8, 1996 for P273,345,
the value of the two bounced checks. Presas did not encash the first check, Check No. 026137. When she tried to
retrieve the initial three subject checks, Presas refused, claiming petitioner still owed interest.

On December 27, 2000, the MeTC rendered its decision, convicting petitioner as follows:

One of the essential elements of the offense of violation of the Anti-Bouncing Check Law is that upon its
presentment, the check is subsequently dishonored by the drawee bank for insufficiency of funds or credit. As
admittedly, PhilBank Check No. 026137 in the amount of P94,257.00 dated Oct. 31, 1995 was not presented to the
drawee bank and therefore could not have been dishonored for insufficiency of fund or credit, the crime of issuing
a bum check of which the accused is charged in Crim. Case No. 178241 does not exist and accused Vicky Moster y
Libarnes is hereby [a]cquitted of the charge.

xxxx

WHEREFORE, upon a careful consideration of the foregoing evidence, the Court finds the same to be sufficient to
support a conviction of the accused beyond reasonable doubt of the offense of violation of B.P. [Blg.] 22 on two
counts and hereby sentences accused Vicky Moster Y Libarnes to pay a fine of two hundred thousand pesos
(P200,000.00) in Crim. Case No. 178240 and a fine of eighty-five thousand pesos (P85,000.00) in Crim. Case No.
178242, with subsidiary imprisonment in both cases in case of insolvency.

Accused is further ordered to pay complainant Adriana Presas the amount of three hundred sixty-seven thousand
six hundred two pesos (P367,602.00) representing the value of the three PhilBank [c]hecks that are yet
unpaid with interest thereon at 12% per annum from February, 1996 until the amount is fully paid and to pay the
cost of these suits.

SO ORDERED.[8] (Emphasis supplied.)

The RTC affirmed in toto the MeTC's decision and subsequently denied the motion for reconsideration. On appeal,
the Court of Appeals affirmed with modification the RTC's decision, thus:

WHEREFORE, we AFFIRM the assailed decision of the RTC with the modification that the accused-petitioner is
ordered to pay, in addition to the fines imposed, the amount of Two Hundred Seventy-Three Thousand, Three
Hundred Forty-Five Pesos (P273,345.00), representing the value of the two PhilBank Checks that are yet unpaid,
with interest thereon at 12% per annum from February 1996 until the amount is fully paid, and to pay the cost of
these suits.

SO ORDERED.[9] (Emphasis supplied.)

Petitioner sought reconsideration, but her motion was denied. Hence, this petition, anchored on the following
grounds:

I.

WHETHER OR NOT PETITIONER'S GUILT HAS BEEN ESTABLISHED BEYOND REASONABLE DOUBT AND THAT THE
COURT OF APPEALS COMMITTED GRAVE ERROR WHEN IT RULED IN A MANNER THAT DISREGARDED THE
PRECEDENTS LAID DOWN IN MAGNO VS. COURT OF APPEALS, 210 SCRA 471 [1992]; CABRERA VS. PEOPLE[,] 407
SCRA 247 [2003]; RICO VS. PEOPLE[,] 392 SCRA 61 [2002]; KING VS. PEOPLE[,] 319 SCRA 654 [1999]; LLAMAD[O] VS.
COURT OF APPEALS, 270 SCRA 423 [1997] AND LAO VS. COURT OF APPEALS, 274 SCRA 572 [1997].

II.
WHETHER OR NOT THE COURT OF APPEALS COMMITTED GRAVE ERROR, AND MISINTERPRETED THE FACTS AND
EVIDENCE IN AFFIRMING THE DECISION OF THE RTC WITH THE MODIFICATION THAT THE ACCUSED-PETITIONER IS
ORDERED TO PAY IN ADDITION TO THE FINES IMPOSED THE AMOUNT OF TWO HUNDRED SEVENTY THREE
THOUSAND THREE HUNDRED FORTY FIVE PESOS (Ps.273,345.00) REPRESENTING THE VALUE OF THE TWO
PHILBANK CHECKS THAT ARE YET UNPAID. WITH INTEREST THEREON AT 12% PER ANNUM FROM FEBRUARY 1996
UNTIL THE AMOUNT IS FULLY PAID AND TO PAY THE COST OF THESE SUITS.[10]
Simply, the two issues for our resolution are (1) Was petitioner's guilt proven beyond reasonable doubt? and (2)
Did the Court of Appeals err in holding petitioner liable for the value of the two PhilBank checks, with 12%
interest?

Petitioner admits she issued the three subject checks but insists that she is not liable under B.P. Blg. 22 because
the prosecution failed to prove the element of knowledge of the insufficiency of funds as it had not established
that she actually received a notice of dishonor. She adds that she had already settled her obligation with Presas
when she replaced the two bounced checks with Asiatrust Bank Check No. 0446323.

Respondent, through the Office of the Solicitor General, counters that petitioner was duly notified of the dishonor
of the checks when petitioner received Presas's January 14, 1997 letter[11] on January 29, 1997. Respondent claims
it presented not only the registry receipt[12] but also the registry return card[13] to prove mailing and receipt of the
notice of dishonor. In fact, as respondent argues, petitioner herself admitted she had replaced the dishonored
checks with an Asiatrust Bank Check No. 0446323 dated February 8, 1996.

We find merit in the petition.

B.P. Blg. 22 punishes as malum prohibitum the mere issuance of a worthless check, provided the other elements of
the offense are proved. Section 1[14] enumerates the elements of B.P. Blg. 22, as follows: (1) the making, drawing,
and issuance of any check to apply on account or for value; (2) the knowledge of the maker, drawer, or issuer that
at the time of issue he does not have sufficient funds in or credit with the drawee bank for the payment of the
check in full upon its presentment; and (3) the subsequent dishonor of the check by the drawee bank for
insufficiency of funds or credit or dishonor for the same reason had not the drawer, without any valid cause,
ordered the bank to stop payment.[15]

Upon careful examination of the records, however, we found that only the first and third elements have been
established by the prosecution. By her own admission, petitioner issued the three subject checks, two of which
were presented to PhilBank but were dishonored and stamped for the reason "Account Closed." Under Section
3[16] of B.P. Blg. 22, the introduction in evidence of the dishonored check, having the drawee's refusal to pay
stamped or written thereon, or attached thereto, with the reason therefor as aforesaid shall be prima
facie evidence of the making or issuing of the said checks and the due presentment to the drawee for payment and
the dishonor thereof, and that the same was properly dishonored for the reason written, stamped or attached
thereto by the drawee on such dishonored checks.[17]

As to the second element, Section 2[18] of B.P. Blg. 22 creates the presumption that the issuer of the check was
aware of the insufficiency of funds when he issued a check and the bank dishonored it. [19] This presumption,
however, arises only after it is proved that the issuer had received a written notice of dishonor and that, within five
days from receipt thereof, he failed to pay the amount of the check or to make arrangements for its payment. [20]

Ordinarily, preponderance of evidence is sufficient to prove notice. But in criminal cases, the quantum of proof
required is proof beyond reasonable doubt.[21] In the instant case, the prosecution merely presented a copy of the
demand letter allegedly sent to petitioner through registered mail and the registry return card. There was no
attempt to authenticate or identify the signature on the registry return card. All that we have on record is an
illegible signature on the registry receipt as evidence that someone received the letter. As to whether this
signature is that of petitioner or her authorized agent remains a mystery. We stress that as we have held in Rico v.
People,[22] receipts for registered letters and return receipts do not by themselves prove receipt; they must be
properly authenticated to serve as proof of receipt of the letters, claimed to be a notice of dishonor.

Unfortunately, the prosecution presented only the testimony of Presas to prove mailing and receipt of the demand
letter, to wit:

When you were informed by the bank that the checks bounced and you
Q:
informed the accused about it, what was her answer?
A: Accused told me to wait and she will settle the matter.
Q: What happen to her promises that she will settle the checks?
When the accused failed to comply with her promise I filed the case in
A:
court.
xxxx
Aside from your oral demand, what other demand did you make on the
Q:
accused?
A: I went to my lawyer to file the case in court.
Q: Aside from filing the complaint what did Atty. Galope do?
xxxx
A: …my lawyer Atty. Galope sent a demand letter to the accused.
xxxx
Q: There is here attached to the demand letter the registry return card?
Yes sir, that is the proof that the demand letter was sent to Vicky
A:
Moster.[23]

In Cabrera v. People, we ruled that it is not enough for the prosecution to prove that a notice of dishonor was sent
to the drawee of the check. The prosecution must also prove actual receipt of said notice because the fact of
service provided for in the law is reckoned from receipt of such notice of dishonor by the drawee of the
check.[24] We even held in Ting v. Court of Appeals that possibilities cannot replace proof beyond reasonable doubt.
When there is insufficient proof of receipt of notice of dishonor, as in this case, the presumption of knowledge of
insufficiency of funds cannot arise.[25] A notice of dishonor personally sent to and received by the accused is
necessary before one can be held liable under B.P. Blg. 22.[26] The failure of the prosecution to prove the receipt by
petitioner of the requisite written notice of dishonor and that she was given at least five banking days within which
to settle her account constitutes sufficient ground for her acquittal. We must emphasize, as we held in King v.
People, the prosecution has the burden of proving beyond reasonable doubt each element of the crime as its case
will rise or fall on the strength of its own evidence.[27] Any doubt shall be resolved in favor of the accused.[28]

Nonetheless, while petitioner must be acquitted for violation of B.P. Blg. 22 for lack of proof of the second element
of the offense, she should be ordered to pay the face value of the three checks less the six thousand pesos she had
already paid, plus legal interest, conformably with our ruling in Rico v. People,[29] where we held that an acquittal
based on reasonable doubt does not preclude the award of civil damages. As admitted by petitioner herself in the
following testimony, she has not paid her obligation, to wit:

So in other words, Check No. 026137 dated October 31 in the amount of

P94,000.00, the original of which is in the possession of the complainant
Q:
and which is the basis of this case, the same is still not paid Mrs.
Witness?
A: Not yet sir.
Likewise, Check No. 026138 dated Oct. 31, 1995 in the amount of One
hundred eighty eight five hundred thousand pesos [sic] which is also in
Q:
the possession of the complainant and is also the basis of this case is not
paid. Is that correct?
That P188,514.00, that is the check I am referring to that I wanted to be
A:
returned to me because I have already paid for that check.
Q: Likewise, because the complainant was in the possession of the original
 of [C]heck No. 0261124 [sic] dated Dec. 13, the same is yet unpaid. Is
that correct?
A: I have already issued a check regarding that amount.
Q: Are you implying that all these checks are replaced by another check?
A: Yes.
Q: Do you have the check now?
A: The check I earlier presented. The check in the amount of P273,000[.]
But the check is not encashed by the bank, there was no endorsement by
Q:
the bank?
A: Yes, because we agreed not to deposit the check.
xxxx
So in other words, these checks marked as Exhs. "4" to "13" were already
Q: in your possession at the time when you were investigated by the fiscal
when you were required to submit the counter affidavit?
A: Yes.
And despite that, you could have presented that whatever [complaint]
Q:
affidavit just to dismiss these subject cases?
A: Yes.
Q: And you failed to do so?
A: Yes.
Do you admit that not a single money was paid with respect to these
Q:
checks?
A: I was able to pay her six thousand pesos.
Is it correct to say that six thousand pesos cannot clearly cover the
Q:
amount of three hundred sixty six thousand pesos?
The check previously marked as Exh. "4" to "13" are the replacement for
A:
the checks.
xxxx
Yes Ms. Witness. What I am asking you is whether those checks, Exhs.
"4" to … "13" were presented and encashed and you said No Your Honor,
Q:
so why do you think that those checks were your payment when the
same were not encashed?
Because our previous agreement is that before she handed to me the
cash loan, she told me to issue several checks but everytime I was able to
A: pay her, for example, one check in the amount of ten thousand pesos,
she would return to me one check in the amount of ten thousand pesos,
Your Honor.[30] (Emphasis supplied.)

WHEREFORE, the Decision dated October 29, 2004 and Resolution dated March 16, 2005 of the Court of Appeals in
CA-G.R. CR No. 27595 are hereby REVERSED and SET ASIDE. Petitioner Vicky Moster is acquitted of the charge for
violation of B.P. Blg. 22 on the ground of reasonable doubt. She is, however, DIRECTED to pay private complainant
the total amount of P367,602 corresponding to the three PhilBank checks that are yet unpaid with interest thereon
at 12% per annum from the filing of the information until the finality of this decision, the sum of which, inclusive of
interest, shall be subject thereafter to 12% per annum interest until the amount due is fully paid.

SO ORDERED.