Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No.

174570 February 22, 2010

ROMER SY TAN, Petitioner, vs. SY TIONG GUE, FELICIDAD CHAN SY, SY CHIM, SY TIONG SAN, SY YU BUN, SY YU SHIONG, SY YU SAN and BRYAN SY LIM, Respondents. DECISION PERALTA, J.: This is a Petition for Review on Certiorari seeking to annul and set aside the Decision 1 dated December 29, 2005 of the Court of Appeals (CA) in CA-G.R. SP No. 81389 and the Resolution2 dated August 18, 2006 denying petitioners Motion for Reconsideration. The antecedents are as follows: On January 11, 2006, an Information 3 for the crime of Robbery was filed against respondents Sy Tiong Gue, Felicidad Chan Sy, Sy Chim, Sy Tiong Yan, Sy Yu Bun, Sy Yu Siong, Sy Yu San, Bryan Sy Lim, Sy Yu Hui-Pabilona, Police Officer 1 (PO1) Mamerto J. Madronio, and PO1 Marvin Sumang for the alleged taking of P6,500,000.00 cash, 286 postdated checks, five boxes of Hennessy Cognac, a television set, a computer set, and other documents from the Guan Yiak Hardware, committed as follows: That on or about April 15, 2003, in the city of Manila, Philippines, the said accused, conspiring and confederating together and helping one another, did then and there willfully, unlawfully and feloniously with intent of gain and by means of violence against or intimidation of persons and force upon things, to wit: by forcibly entering the Office of Guan Yiak Hardware located at 453-455 Tomas Pinpin Street, Binondo, Manila, while being armed with guns, and thereafter, take rob and carry away cash in the amount of P6,500,000.00 from the vault; 286 postdated checks with total face value of P4,325,642.00 issued by several customers payable to Guan Yiak Hardware, Five (5) boxes of Hennessy XO Cognac valued at P240,000.00 more or less; a television set valued at P20,000.00 more or less; Computer set valued at P50,000.00 more or less and other papers/documents or all valued at P11,135,642.00 more or less belonging to SY SIY HO AND SONS, INC. (Guan Yiak Hardware) represented by Romer S. Tan, to the damage and prejudice of the aforesaid owner in the total amount of P11,135,642.00 more or less, Philippine Currency. Contrary to law.4 Consequently, on April 22, 2003, Police Inspector (P/Insp.) Edgar A. Reyes filed two separate applications for the issuance of a search warrant before the Regional Trial Court (RTC), Manila. The applications were later docketed as Search Warrant Case Nos. 03-3611 and 03-3612 and raffled off to Branch 7, RTC, Manila. In the said applications, P/Insp. Reyes alleged that he had personal knowledge that respondent Felicidad Chan Sy had in her possession five boxes of Hennessy XO, as well as 286 company checks taken from Guan Yiak Hardware. He prayed that the court issue a search warrant authorizing him or any other agent of the law to take possession of the subject property and bring them before the court. In support of the applications, P/Insp. Reyes submitted the sworn statements of petitioner Romer Sy Tan5 and witnesses Maricho Sabelita6 and Anicita Almedilla.7 On April 22, 2003, presiding Judge Enrico A. Lanzanas posed searching questions to the applicant and his witnesses to determine if probable cause existed to justify the issuance of the search warrants.

Thereafter, or on April 22, 2003, Judge Lanzanas issued Search Warrant Nos. 03-3611 8 and 03-3612,9 directing any peace officer to make an immediate search of the 8th floor, 524 T. Pinpin, Binondo, Manila for five boxes of Hennessy XO; and the 7th floor, 524 T. Pinpin, Binondo, Manila for various checks payable to the Guan Yiak Hardware, respectively; and, if found, to take possession thereof and bring the same before the court. The warrants were later served in the afternoon of April 22, 2003. Under Search Warrant No. 03-3611, three boxes containing twelve Hennessy XOs and one box containing seven Hennessy XOs, were seized. However, the enforcement of Search Warrant No. 03-3612 yielded negative results. On May 21, 2003, respondents filed a Motion to Quash Search Warrants, 10 which petitioner opposed.11 On September 1, 2003, the RTC issued an Order12 denying the motion. Respondents filed a Motion for Reconsideration,13 but it was denied in the Order14 dated October 28, 2003. Aggrieved, respondents filed a Petition for Certiorari15 under Rule 65 of the Rules of Court before the CA arguing that: I. The respondent judge committed grave abuse of discretion amounting to lack or excess of jurisdiction when he refused to quash the subject search warrants, notwithstanding the manifest absence of probable cause. II. There is no appeal, nor any other plain, speedy, and adequate remedy in the ordinary course of law from the assailed Orders.16 On December 29, 2005, the CA rendered the assailed Decision, the decretal portion of which reads: WHEREFORE, premises considered, the petition is GRANTED. The assailed orders of the respondent court in Search Warrant Case Nos. 03-3611 and 03-3612 are REVERSED and SET ASIDE. Accordingly, the Motion to Quash Search Warrant Case Nos. 03-3611 and 033612 is GRANTED. SO ORDERED.17 The CA opined that quashing the search warrants for lack of personal knowledge was unwarranted. It added that the description of the items to be seized complied with the requirement of particularity. Moreover, the CA found the inquiries made by the judge to be sufficiently probing. However, the CA agreed with the respondents and concluded that there was no probable cause for the issuance of the subject search warrants; thus, respondents motion to quash should have been granted by the RTC. Petitioner filed a motion for reconsideration, but it was denied in the assailed Resolution dated August 18, 2006. Hence, the petition assigning the following errors: A The honorable Court of Appeals committed error of law and error of jurisdiction in setting aside the search warrants issued by honorable executive judge enrico a. lanzanas of rtc 7, manila. B

The honorable court of appeals committed error of law and error of jurisdiction in granting the petition for certiorari filed with it by the respondents, despite lack of showing that honorable executive judge enrico a. lanzanas of rtc 7, manila, committed grave abuse of discretion amounting to lack or excess of jurisdiction in issuing its orders (annexes "l" and "p") denying respondents motion to quash search warrants and motion for reconsideration. Petitioner argues that there was substantial basis for the findings of facts and circumstances, which led the issuing court to determine and conclude that the offense of robbery had been committed by the respondents. Petitioner insists that there was probable cause, which justified the issuing judge to issue the questioned search warrants. Petitioner maintains that the RTC issued the search warrants after determining the existence of probable cause based on the Sinumpaang Salaysay of the affiants and the testimonies given by them during the hearing of the applications for search warrant. On their part, respondents maintain that the CAs finding that there was no probable cause for the issuance of the search warrants was in accordance with the facts and the law. Respondents contend that the CA correctly appreciated the numerous statements and admissions of petitioner and his witnesses, all of which, taken together, clearly negate any finding of probable cause for the issuance of the subject search warrants. The sole issue to be determined in the instant action is whether or not there was probable cause warranting the issuance by RTC of the subject search warrants. We answer in the affirmative A search warrant is an order in writing issued in the name of the People of the Philippines, signed by a judge and directed to a peace officer, commanding him to search for personal property described therein and to bring it before the court. 18 The issuance of a search warrant is governed by Rule 126 of the Rules of Court, the relevant sections of which provide: Section 4. Requisites for issuing search warrant. A search warrant shall not issue except upon probable cause in connection with one specific offense 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 things to be seized which may be anywhere in the Philippines.
1avvphi1

Section 5. Examination of complainant; record. The judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath, the complainant and the witnesses he may produce on facts personally known to them and attach to the record their sworn statements together with the affidavits submitted. Section 6. Issuance and form of search warrant. If the judge is satisfied of the existence of facts upon which the application is based or that there is probable cause to believe that they exist, he shall issue the warrant, which must be substantially in the form prescribed by these Rules. Therefore, the validity of the issuance of a search warrant rests upon the following factors: (1) it must be issued upon probable cause; (2) the probable cause must be determined by the judge himself and not by the applicant or any other person; (3) in the determination of probable cause, the judge must examine, under oath or affirmation, the complainant and such witnesses as the latter may produce; and (4) the warrant issued must particularly describe the place to be searched and persons or things to be seized. 19 In the case at bar, the CA concluded that the RTC did not comply with any of the requisites required for the issuance of the subject search warrants. The CA ratiocinated that although the RTC judge personally determined if probable cause existed by examining the witnesses through searching questions, and although the search warrants sufficiently described the place to be searched and things to be seized, there was no probable cause warranting the issuance of the subject search warrants. We do not agree. Jurisprudence dictates that probable cause, as a condition for the issuance of a search warrant, is such reasons supported by facts and circumstances as will warrant a cautious man to believe that his action and the means taken in prosecuting it are legally just and

proper. Probable cause requires facts and circumstances that would lead a reasonably prudent man to believe that an offense has been committed and that the objects sought in connection with that offense are in the place to be searched. 20 In Microsoft Corporation v. Maxicorp, Inc.,21 this Court stressed that: The determination of probable cause does not call for the application of rules and standards of proof that a judgment of conviction requires after trial on the merits. As implied by the words themselves, "probable cause" is concerned with probability, not absolute or even moral certainty. The prosecution need not present at this stage reasonable doubt. The standards of judgment are those of a reasonably prudent man, not the exacting calibrations of a judge after a full-blown trial. Applying these set standards, this Court finds that there was no grave abuse of discretion on the part of the RTC judge in issuing the subject search warrants. A perusal of the Sinumpaang Salaysay22 and the Transcript of Stenographic Notes23 reveals that Judge Lanzanas, through searching and probing questions, was satisfied that there were good reasons to believe that respondents, accompanied by five maids, took five boxes of Hennessy XO owned by the Guan Yiak Hardware and brought them to the 8th floor of 524 T. Pinpin St., Binondo, Manila; and that a person named "Yubol" took various checks from the companys vault, which was later brought to the 7th floor of 524 T. Pinpin St., Binondo, Manila. When they entered the premises, Felicidad Chan Sy was accompanied by two policemen, which stunned Romer Sy Tan, so that he was not able to do anything in the face of the calculated and concerted actions of his grandmother, Felicidad Chan Sy, and her seven companions. Based on the foregoing circumstances, Romer Sy Tan believed that the crime of robbery was committed by the respondents.24 The power to issue search warrants is exclusively vested in the trial judges in the exercise of their judicial functions.25 A finding of probable cause, which would merit the issuance of a search warrant, needs only to rest on evidence showing that, more likely than not, a crime has been committed and that it was committed by the accused. 26 The determination of whether probable cause exists as to justify the issuance of a search warrant is best left to the sound discretion of a judge. 27 Apparent in the case at bar and as aptly found by the RTC judge, there was probable cause justifying the issuance of the search warrants. This was established by the Sinumpaang Salaysay and the testimonies, consisting of no less than 37 pages, given by witnesses who had personal knowledge of facts indicating that the crime of robbery had been committed and that the objects sought in connection with the offense were in the place sought to be searched. The facts narrated by the witnesses while under oath, when they were asked by the examining judge, were sufficient justification for the issuance of the subject search warrants. A Petition for Certiorari under Rule 65 of the Rules of Court is intended for the correction of errors of jurisdiction only, or grave abuse of discretion amounting to lack or excess of jurisdiction. Its principal office is only to keep the inferior court within the parameters of its jurisdiction, or to prevent it from committing such grave abuse of discretion amounting to lack or excess of jurisdiction.28 This Court finds nothing irregular, much less, grave abuse of discretion, committed by the RTC judge in issuing the subject search warrants. The RTC judge complied with all the procedural and substantive requirements for the issuance of a search warrant. This Court is, therefore, bound by the RTC judges finding of probable cause for issuing Search Warrant Nos. 03-3611 and 03-3612. It is to be noted, however, that while this Court affirms the sufficiency of probable cause in the issuance of the search warrants in connection with the crime of robbery allegedly committed by the respondents, the guilt of the accused still remains to be determined in the appropriate criminal action against them, not in the present case which is limited only to the propriety of the issuance of the subject search warrants by the RTC. WHEREFORE, premises considered, the petition is GRANTED. The Decision and Resolution dated December 29, 2005 and August 18, 2006, respectively, of the Court of Appeals in CA-G.R. SP No. 81389 are REVERSED and SET ASIDE. The Orders of the RTC dated September 1, 2003 and October 28, 2003 are REINSTATED. The validity of Search Warrant Nos. 03-3611 and 03-3612 is SUSTAINED.

SO ORDERED. DIOSDADO M. PERALTA Associate Justice WE CONCUR: RENATO C. CORONA Associate Justice Chairperson PRESBITERO J. VELASCO, JR. Associate Justice ANTONIO EDUARDO B. NACHURA Associate Justice

JOSE CATRAL MENDOZA Associate Justice ATTESTATION I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. RENATO C. CORONA Associate Justice Third Division, Chairperson CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. REYNATO S. PUNO Chief Justice

Footnotes Penned by Associate Justice Amelita G. Tolentino, with Associate Justices Portia Alio Hormachuelos and Santiago Javier Ranada, concurring, rollo, pp. 35-50.
1 2

Id. at 81-82. Id. at 73-74. Id. at 75. Id. at 89. Id. at 90. Id. at 91. Id. at 95. Id. at 96. Id. at 97-103.

10

11

Id. at 114-119. Id. at 129-132. Id. at 133-144. Id. at 158. CA rollo, pp. 2-31. Id. at 11-12. Rollo, at 50. Rules of Court, Rule 126, Section 1.

12

13

14

15

16

17

18

Hon Ne Chan v. Honda Motor Co., Ltd., G.R. No. 172775, December 19, 2007, 541 SCRA 249, 258; Republic v. Sandiganbayan, G.R. Nos. 112708-09, March 29, 1996, 255 SCRA 438, 481-482.
19

Coca-Cola Bottlers, Phils., Inc. (CCBPI) v. Gomez, G.R. No. 154491, November 14, 2008, 571 SCRA 18, 32; see also Santos v. Pryce Gases, Inc., G.R. No. 165122, November 23, 2007, 538 SCRA 474, 484; Hon Ne Chan v. Hondo Motor Co., Ltd., id. at 259-260; La Chemise Lacoste, S. A. v. Judge Fernandez, G.R. Nos. 63796-97, May 21, 1984, 129 SCRA 373.
20 21

G.R. No. 140946, September 13, 2004, 438 SCRA 224, 236. CA rollo, p. 58-60. Id. at 62-108. Rollo, p. 130.

22

23

24

Skechers, U.S.A., Inc. v. Inter Pacific Industrial Trading Corp. G.R. No. 164321, November 30, 2006, 509 SCRA 395, 407, citing Manly Sportwear Manufacturing, Inc. v. Dadodette Enterprises, G.R. No. 165306, September 20, 2005, 470 SCRA 384, 389, citing Section 2, Article III, 1987 Constitution.
25 26

Santos v. Pryce Gases, Inc., supra note 20.

Busilac Builders, Inc. v. Aguilar, A.M. No. RTJ-03-1809, October 17, 2006, 504 SCRA 585, 603.
27 28

People v. Court of Appeals, 468 Phil. 1, 10 (2004).

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION

G.R. No. 111267 September 20, 1996 COLUMBIA PICTURES ENTERTAINMENT, INC., MGM ENTERTAINMENT CO., ORION PICTURES CORPORATION, PARAMOUNT PICTURES CORP., UNIVERSAL CITY STUDIOS, INC., THE WALT DISNEY COMPANY and WARNER BROTHERS, INC., petitioners, vs. HONORABLE COURT OF APPEALS, 14TH DIVISION and JOSE B. JINGCO of SHOWTIME ENTERPRISES, INC., respondents.

ROMERO, J.: Petitioners Columbia Pictures Industries, Inc., MGM Entertainment Co., Orion Pictures Corporation, Paramount Pictures Corp., Universal City Studios, Inc. The Walt Disney Company and Warner Brothers, Inc. question the decision 1 of the Court of Appeals which affirmed the Order of the Regional Trial Court of Pasig, Branch 168, the dispositive portion of which states: WHEREFORE, finding that the issuance of the questioned warrants was not supported by probable cause, the "Urgent Motion (to Lift Search Warrant [No. 23] and for the Return of Seized Articles) is hereby GRANTED. Accordingly, the Videogram Regulatory Board (VRB) and/or any Police Agency or other representatives of the VRB are hereby directed to return to the defendant/movant or his representative all articles/items in their possession seized under and by virtue of Search Warrant No. 23. SO ORDERED. The antecedent facts leading to the disputed Order are: Alfredo G. Ramos, intelligence officer of the Videogram Regulatory Board (VRB), received information that private respondent Jose B. Jinco had in his possession pirated videotapes, posters, advertising materials and other items used or intended to be used for the purpose of sale, lease, distribution, circulation or public exhibition of the said pirated videotapes. Ramos ascertained the information to be true and filed a verified Application for Search Warrant dated July 28, 1986 with prayer for the seizure of the properties described in the search warrant. On the same date, a hearing was conducted by Judge Florentino A. Flor of the Regional Trial Court of Pasig, Branch 168, wherein Ramos and his two witnesses, Analie Jimenez and Rebecca Benitez-Cruz testified on the need for the issuance of search warrant. On July 28, 1986, the prayer for the issuance of the search warrant was granted and, on the same date, Search Warrant No. 23 was issued. On July 2, 1987, private respondent filed a Motion to Quash Search Warrant No. 23 on the grounds that the Search Warrant did not state a specific offense and that, even assuming it stated a specific offense, it covered more than one specific offense. The VRB opposed the Motion to Quash stating that Search Warrant No. 23 was issued for a single specific offense

namely, violation of Section 56 and other related sections of Presidential Decree No. 49 as amended by Presidential Decree No. 1988. On September 30, 1987, the trial court denied the Motion to Quash finding that the Search Warrant was issued for one specific offense. A Motion for Reconsideration was filed but the same was likewise denied. Private respondent then filed an Urgent Motion To Lift the Search Warrant and For the Return of the Seized Articles alleging that Search Warrant No. 23 is a general warrant, and that it was issued without probable cause. On May 22, 1989, the assailed order was issued by Judge Benjamin V. Pelayo, now presiding over Branch 168 of the Pasig RTC, granting the Motion to Quash and ordering the return of all seized articles to private respondent. Petitioners appealed to the Court of Appeals, which affirmed the said Order in toto. Hence, this petition. In granting the Motion to Quash, the trial court relied on the Court's ruling in 20 th Century Fox Film Corporation v. Court of Appeals, et al. 2 which involved violation of Presidential Decree No. 49, (otherwise known as the Decree on the Protection of Intellectual Property). In said case, video outlets were raided pursuant to search warrants issued by the Regional Trial Court of Makati. However, the search warrants were later lifted by the same court on the ground of lack of probable cause because the master tapes of the alleged pirated tapes were never shown to the lower court. The Court affirmed the lifting of the search warrants holdings that the presentation of the master tapes was necessary for the validity of the search warrants against those who have the pirated films in their possession. When the trial court granted the Motion to Quash Search Warrant No. 23 on May 22, 1989, it used as its justification the fact that, as the master copies were not presented to the court in its hearing of July 28, 1986, there was no probable cause to issue the said warrant, based on the pronouncements in 20th Century Fox. Petitioners now question the retroactive application of the 20th Century Fox decision which had not yet been promulgated in 1986 when the search warrant was issued. Petitioners further argue that, contrary to the trial court's finding, the search warrant was not a general warrant since the description of the items to be seized was specific enough. It removed from the serving officer any discretions as to which items to seize inasmuch as it described only those items which had a direct relation to the offense for which the search warrant was issued. The threshold issued that must first be determined is whether or not petitioners have the legal personality and standing to file the appeal. Private respondent asserts that the proceedings for the issuance and/or quashal of a search warrant are criminal in nature. Thus, the parties in such a case are the "People" as offended party and the accused. A private complainant is relegated to the role of a witness who does not have the right to appeal except where the civil aspect is deemed instituted with the criminal case. Petitioners, on the other hand, argue that as the offended parties in the criminal case, they have the right to institute an appeal from the questioned order. From the records it is clear that, as complainants, petitioners were involved in the proceedings which led to the issuance of Search Warrant No. 23. In People v. Nano, 3 the Court declared that while the general rule is that it is only the Solicitor General who is authorized to bring or defend actions on behalf of the People or the Republic of the Philippines once the case is brought before this Court or the Court of Appeals, if there appears to be grave error committed by the judge or a lack of due process the petition will be deemed filed by the private complainants therein as if were filed by the Solicitor General. In

line with this ruling, the Court gives this petition due course and will allow petitioners to argue their case against the questioned order in lieu of the Solicitor General. As regards the issue of the validity of Search Warrant No. 23, there are two questions to be resolved: first, whether the 20th Century Fox decision promulgated on August 19, 1988 is applicable to the Motion to Quash Search Warrant No. 23 (issued on July 28, 1986). We hold in the negative. In the recent Columbia Pictures, et al., v. Court of Appeals, et al. 4 case which resolved the same issue involving the same petitioners but with different respondents, the Court en banc held: Mindful as we are of the ramifications of the doctrine of stare decisis and the rudiments of fair play, it its our considered view that the 20th Century Fox ruling cannot be retroactively applied to the instant case to justify the quashal of Search case to justify the quashal of Search Warrant No. 87-053. Herein petitioners' consistent position that the order of the lower court of September 5, 1988 denying therein defendants' motion to lift the order of search warrant was properly issued, there having been satisfactory compliance with the then prevailing standards under the law for determination of probable cause, is indeed well taken. The lower court could not possibly have expected more evidence from petitioners in their application for a search warrant other than what the law and jurisprudence, then existing and judicially accepted , required with respect to the finding of probable cause. xxx xxx xxx It is consequently clear that judicial interpretation becomes a part of the law as of the date that law was originally passed, subject only to the qualification that when a doctrine of this Court is over-ruled and a different view is adopted, and more so when there is a reversal thereof, the new doctrine should be applied prospectively and should not apply to parties who relied on the old doctrine and acted in good faith. (People v. Jabinal, L-30061, February 27, 1974, 55 SCRA 607; Unciano Paramedical College, Inc., et al. v. Court of Appeals, et al. G.R. No. 100335, April 7, 1993, 221 SCRA 285; Tanada, et al. v. Guingona, Jr., etc., et al., G.R. No. 113888, August 19, 1994, 235 SCRA 507). To hold otherwise would be to deprive the law of its quality of fairness and justice then, if there if no recognition of what had transpired prior to such adjudication. (De Agbayani v. Philippine National Bank, et al. L-23127, April 29, 1971, 38 SCRA 429). Likewise, the Court ruled therein that presentation of the master tapes in such cases is not an absolute requirement for as search warrant to issue: More to the point, it is felt that the reasonableness of the added requirement in 20th Century Foxcalling for the production of the master tapes of the copyrighted films for determination of probable cause in copyright infringement cases needs revisiting and clarification. xxx xxx xxx In fine, the supposed pronunciamento in said case regarding the necessity for the presentation of the master tapes of the copy-righted films for the validity of search warrants should at most be understood to merely serve as a guidepost in determining the existence of probable cause in copy-right infringement cases where there is doubt as to the true nexus between the master tape and the pirated copies. An objective and careful reading of the decision in said case could lead to no other conclusion than that said directive was hardly intended to be a sweeping and inflexible requirement in all or similar copyright infringement cases. Judicial dicta should always be

construed within the factual matrix of their parturition, otherwise a careless interpretation thereof could unfairly fault the writer with the vice of over statement and the reader with the fallacy of undue generalization. xxx xxx xxx It is evidently incorrect to suggest, as the ruling in 20th Century Fox may appear to do, that in copyright infringement cases, the presentation of master tapes of the copyright films is always necessary to meet the requirement of probable cause for the issuance of a search warrant. It is true that such master tapes are object evidence, with the merit that in this class of evidence the ascertainment of the controverted fact is made through demonstration involving the direct use of the senses of the presiding magistrate. (City of Manila v. Cabangis, 10 Phil. 151 [1908]; Kabase v. State, 31 Ala, App. 77, 12 So. 2nd, 758, 764). Such auxiliary procedure, however, does not rule out the use of testimonial or documentary evidence, depositions, admissions or other classes of evidence tending to prove the factum probandum, (See Phil. Movie Workers Association v. Premiere Productions, Inc. 92 Phil. 843 [1953]) especially where the production in court of object evidence would result in delay, inconvenience or expenses out of proportion to is evidentiary value. (See 3 Jones on Evidence, Sec. 1400). The instant case also differs from 20th Century Fox in that what herein private respondent put in issue was the application of the ruling in that case, not the conduct of Judge Flor in the issuance of Search Warrant No. 23. From the records, it is clear that Judge Flor observed all the requirement necessary before the search warrant was issued: he heard the testimonies and studied the dispositions of the witnesses for the petitioners, namely, Ms. Rebecca Benitez-Cruz, Ms. Analie I. Jimenez and the VRB's Intelligence Officer, Alfredo G. Ramos on the existence of probable cause before issuing the warrant. Under Sec. 3 and 4, Rule 126 of the Rules of Court, the requirements for the issuance of valid search warrant are: Sec. 3. Requisites for issuing search warrant. A search warrant shall not issue but upon probable cause in connection with one specific offense to be determined by the judge or such other responsible officer authorized by law 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 thing to be seized. Sec. 4. Examination of complainant; record. The judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath the complainant and any witnesses he may produce on facts personally known to them and attach to the record their sworn statements together with any affidavits submitted. Having satisfied these requirements, Judge Flor committed no grave abuse of discretion in issuing the warrant. Private respondent contends that Search Warrant No. 23 also violates the constitutional requirements of particularity of the description of the warrant, being a general warrant and thus, is null and void. In several cases, this Court had held that:
To be valid, a search warrant must be supported by probable cause to be determined by the judge or some other authorized officer after examining the complainant and the witnesses he may produce. No less important, there must be a specific description of the place to be searched and the things to be seized,

to prevent arbitrary and indiscriminate use of the warrant (Sec. 3, Art. IV, 1974 Constitution, now Sec. 2, Art. III of the 1986 Constitution; Sec. 3, Rule 126 of the New Rules of Court; Stonehill v. Diokno, 20 SCRA 383, Lime v. Ponce de Leon, 66 SCRA 299; Uy Kheytin v. Villareal, 42 Phil. 886; People v. Veloso, 48 Phil. 169; People v. Rubio, 57 Phil. 384; Bache & Co., (Phil.) Inc. v. Ruiz, 37 SCRA 823; Roan v. Gonzalez, 145 SCRA 687) 5(emphasis supplied)

When may a search warrant be deemed to satisfy the legal requirements of specificity? In Bache and Co., (Phil.) Inc. v. Ruiz, we said A search warrant may be said to particularly describe the things to be seized when the description therein is as specific as the circumstances will ordinarily allow (People v. Rubio, 57 Phil. 384); or when the description expresses a conclusion of fact not of law by which the warrant officer may be guided in making the search and seizure (idem., dissent of Abad Santos, J.); or when the things described are limited to those which bear direct relation to the offense for which the warrant is being issued (Sec. 2, Rule 126, Revised Rules of Court). . . . If the articles desired to be seized have any direct relation to an offense committed, the applicant must necessarily have some evidence, other than those articles, to prove the said offense; and the articles subject of search and seizure should come in handy merely to strengthen such evidence. . . . An examination of Search Warrant No. 23 shows that it was worded in such a manner that the enumerated items to be seized bear a direct relation to the offense of violation of Sec. 56 of Presidential Decree No. 49, as amended, which states: (1) Transfer or cause to be transferred, directly or indirectly any sound recording or motion picture, or other audio-visual work that has been recorded on a phonograph record, disc, wire, tape, film or other article on which sounds, motion pictures, or other audio-visual works are recorded, with intent to sell, lease, publicly exhibit or cause to be sold, leased or publicly exhibited, or to use for cause to be used for profit, such article on which sounds, motion pictures, or other audio visual works are so transferred, WITHOUT THE WRITTEN CONSENT OF HIS ASSIGNEE; or (2) Sell, lease, distribute, circulate, exhibit, offer for sale, lease, distribution, circulation or public exhibit, offer for sale, lease, distribution, or possess for the purpose of sale, lease, distribution, circulation or public exhibition, any such article to which the sounds, motion pictures or audio-visual recordings thereon have been so transferred, without the written consent of the owner or his assignee; or (3) Offer or make available for a fee, rental or any other form of compensation, directly or indirectly, any equipment, machinery, paraphernalia or any material with the knowledge that such equipment, machinery, paraphernalia or material, will be used by another to reproduce, without the consent of the owners any phonograph record, disc, wire, tape film or other article on which sound, motion pictures, or other audio-visual recordings may be transferred. In other words, it authorized only the seizure of articles used or intended to be used in the unlawful sale, lease and other acts in violation of the said decree. The search warrant ordered the seizure of the following properties: (a) Pirated video tapes of the copyright motion pictures/films the titles of which are mentioned in the attached list; (b) Posters, advertising leaflets, brochures, invoices, journals, ledgers, and books of accounts bearing and/or mentioning the pirated films with titles (as per attached list);

(c) Television sets, video cassettes records, rewinders, tape head cleaners, accessories, equipment and other machines and paraphernalia or material used in the unlawful sale, lease, distribution, or possession for purpose of sale, lease, distribution, circulation or public exhibition of the abovementioned pirated video tapes which he is keeping and concealing in the premises above-described. Clearly, the above items could not be anymore specific as the circumstances will allow since they are all used or intended to be used in the unlawful sale or lease of pirated tapes. Therefore, the pending of the appellate court that Search Warrant No. 23 is a "general" warrant of devoid of basis. WHEREFORE, the assailed decision and resolution of respondent Court of Appeals, and necessarily inclusive of the order of the trial court dated May 22, 1989, are hereby REVERSED and SET ASIDE. The order of the trial court dated July 28, 1986 upholding the validity of Search Warrant No. 23 is hereby REINSTATED. Costs against private respondent. SO ORDERED. Regalado, Puno and Torres, Jr., JJ., concur. Mendoza, J., is on leave. Footnotes 1 Rollo, p. 24. 2 162 SCRA 655 (1988). 3 205 SCRA 155 (1992). 4 G.R. No. 110318, August 28, 1996. 5 Bachelor Express Incorporated v. Court of Appeals, G.R. No. 85691, 31 July 1990, 188 SCRA 216; Villa Rey Transit, Inc. v. Court of Appeals, No. L- 25499, 18 February 1970, 31 SCRA 511. Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 142295 May 31, 2001

VICENTE DEL ROSARIO y NICOLAS, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent. PARDO, J.: Petitioner Vicente del Rosario y Nicolas appeals via certiorari from a decision of the Court of Appeals1 affirming with modification the decision of the Regional Trial Court, Bulacan, Branch 20, Malolos, and finding him guilty beyond reasonable doubt of violation of P. D. No. 1866, as amended, by Republic Act No. 8294 (illegal possession of firearms), sentencing him to four (4) years, nine (9) months and eleven (11) days of prision correccional, as minimum, to six (6) years, eight (8) months and one (1) day of prision mayor, as maximum, and to pay a fine of P30,000.00.
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On June 17, 1996, Assistant Provincial Prosecutor Eufracio S. Marquez of Bulacan filed with the Regional Trial Court, Bulacan, Malolos an Information charging petitioner Vicente del Rosario y Nicolas with violation of P. D. No. 1866, as follows: "That on or about the 15th day of June 1996, in the municipality of Norzagaray, Province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there wilfully, unlawfully and feloniously have in his possession under his custody and control, the following, to wit: "a) One (1) pc. Pistol Cal. 45 SN:70G23792 (w/o license) "b) One (1) pc. Revolver Cal. 22 SN:48673 (w/o license) "c) Twenty Seven (27) rds live ammos. For cal. .45 "d) Five (5) pcs. Magazines for cal. .45 "e) Eight (8) rds live ammunitions for cal. 22 "f) Five (5) pcs. Magazines short for cal. 5.56 (M16) "g) Twenty (20) rds live ammunitions for cal 5.56. "without first having obtained" a proper license therefor. "Contrary to law."2 On June 25, 1996, the trial court arraigned the petitioner. He pleaded not guilty. 3 Trial ensued. The facts, as found by the Court of Appeals, are as follows: "Sometime in May 1996, the police received a report that accused-appellant Vicente del Rosario was in possession of certain firearms without the necessary licenses. Acting upon the report, P/Sr. Insp. Jerito Adique of the PNP Criminal Investigation Group at Camp Olivas, Pampanga inquired from the PNP Firearms and Explosive Division "whether or not the report was true. On May 10, 1996, P/Sr. Insp. Edwin C. Roque of the PNP Firearms and Explosives Division issued a certification (Exhibit L) stating that per records in his office, the appellant is not a licensed/registered firearm holder of any kind and caliber. Armed with the said certification, P/Sr. Insp. Adique applied for a search warrant to enable his team to search the house of appellant.
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"On June 13, 1996, a search warrant (Exhibit A) was issued by Judge Gil Femandez, Sr. of the Regional Trial Court of Quezon City, Branch 217, authorizing the search of the residence of appellant at Barangay Tigbe, Norzagaray, Bulacan. 4 On June 15, 1996, at about 7:00 o'clock in the morning, a team led by P/Sr. Insp. Adique went to Norzagaray to serve the warrant. Before proceeding to the residence of the appellant, the police officers requested Barangay Chairman Rogelio de Silva and Barangay Councilman Aurelio Panteleon to accompany them in the implementation of the warrant. Upon arrival at the house of appellant, the police officers introduced themselves to the wife of appellant. When the appellant came out, P/Sr. Insp. Adique informed him that they had a search warrant and that they were authorized to search his house. After appellant gave his permission, the police officers conducted a search of the house. The search yielded the following items: (a) a caliber .45 pistol with Serial No. 703792 with five magazines of caliber .45 (Exhibits B and H) found at the master's bedroom; (b) five magazines of 5.56 M-16 rifle and two radios (Exhibits C to C-4) found in the room of appellant's daughter; and (c) a caliber .22 revolver with Serial No. 48673 (Exhibit F) containing 8 pieces of live ammunition (Exhibit M) found in the kitchen of the house. When asked about his license to possess the firearms, the appellant failed to produce any. This prompted the police officers to seize the subject firearms.

"SPO2 Marion Montezon, one of the searching officers, prepared three separate inventories of the seized items (Exhibits H, M and N). The inventories were signed by P/Sr. Insp. Adique, the appellant and the barangay officials who witnessed the search. Thereafter SPO2 Montezon prepared a certification of orderly search (Exhibit I) which was signed by the appellant and the barangay officials attesting to the orderly conduct of the search. "For his defense, appellant contends that he had a license for the caliber .45 pistol recovered in his bedroom and that the other items seized during the search including the caliber .22 revolver, were merely planted by the police officers. Appellant likewise assails the manner in which the search was carried out, claiming that the police officers just barged into his house without asking permission. Furthermore, he claimed that the barangay officials arrived only after the police already had finished the search. "After trial and on July 2, 1998, the trial court rendered a judgment of conviction, the dispositive portion of which reads: "WHEREFORE, premises considered, the Court finds the accused VICENTE DEL ROSARIO y NICOLAS guilty beyond reasonable doubt of violation of P. D. No. 1866 as charged under the Information dated June 17, 1996. "Conformably with the provisions of said law, as amended by Republic Act No. 8294, and pursuant to the provisions, of the Indeterminate Sentence Law, the Court hereby sentences the accused to suffer imprisonment of six (6) months of arresto mayor, as minimum, to six (6) years of prision correctional, as maximum, and to pay a fine of Fifteen. Thousand Pesos (P15,000.00). On July 20, 1998, petitioner appealed to the Court of Appeals, assailing the decision for being contrary to facts and the law.6 On July 9, 1999, the Court of Appeals promulgated its decision affirming with modification the decision of the trial court as set out in the opening paragraph of this decision. 7 On August 10, 1999, petitioner filed with the Court of Appeals a motion for reconsideration and/or new trial.8 He contended that the certification issued by the Chief, Firearms and Explosives Division, Philippine National Police stating that the person named therein had not been issued a firearm license referred to a certain Vicente "Vic" del Rosario of barangay Bigte, Norzagaray, Bulacan, not to him. He comes from barangay Tigbe, Norzagaray, Bulacan, and that he has a valid firearm license. On February 22, 2000, the Court of Appeals denied the motion for reconsideration for lack of merit.9 Hence, this appeal.10 Petitioner submits that the search conducted at his residence was illegal the search warrant was issued in violation of the Constitution 11 and consequently, the evidence seized was inadmissible. He also submits that he had a license for the .45 caliber firearm and ammunition seized in his bedroom. The other firearm, a .22 caliber revolver seized in a drawer at the kitchen of his house, a magazine for 5.56 mm. cal. Armalite rifle, and two 2way radios found in his daughter's bedroom, were either planted by the police or illegally seized, as they were not mentioned in the search warrant. We find the petition impressed with merit. We define the issues as follows: First: whether petitioner had a license for the .45 caliber Colt pistol and ammunition seized in his bedroom; and

Second: whether the .22 caliber revolver seized in a drawer at the kitchen of his house, a magazine for 5.56 mm. cal. Armalite rifle and two 2-way radios found in his daughter's bedroom, were planted by the police or were illegally seized. We shall resolve the issues in seriatim. First: The .45 cal. Colt pistol in question was duly licensed. Normally, we do not review the factual findings of the Court of Appeals and the trial courts.12 However, this case comes within the exceptions.13 The "findings of fact by the Court of Appeals will not be disturbed by the Court unless these findings are not supported by evidence."14 In this case, the findings of the lower courts even directly contradict the evidence. Hence, we review the evidence. The trial court held that the copy of the license presented was blurred, and that in any event, the court could rely on the certification dated May 10, 1996, of P/Sr. Inspector Edwin C. Roque, Chief, Records Branch, Firearms and Explosives Division, Philippine National Police stating that Vicente "Vic" del Rosario of Barangay Bigte, Norzagaray, Bulacan is not a licensed/registered firearm holder of any kind and caliber.15 As against this, petitioner submitted that he was not the person referred to in the said certification because he is Vicente del Rosario y Nicolas from Barangay Tigbe, Norzagaray, Bulacan. The Court takes judicial notice of the existence of both barangay Tigbe and barangay Bigte, in Norzagaray, Bulacan. 16 In fact, the trial court erred grievously in not taking judicial notice of the barangays within its territorial jurisdiction, believing the prosecution's submission that there was only barangay Tigbe, and that barangay Bigte in the certification was a typographical error. 17 Petitioner presented to the head of the raiding team, Police Senior Inspector Jerito A. Adique, Chief, Operations Branch, PNP Criminal Investigation Command, a valid firearm license. The court is duty bound to examine the evidence assiduously to determine the guilt or innocence of the accused. It is true that the court may rely on the certification of the Chief, Firearms and Explosives Division, PNP on the absence of a firearm license. 18 However, such certification referred to another individual and thus, cannot prevail over a valid firearm license duly issued to petitioner. In this case, petitioner presented the printed computerized copy of License No. RCL 1614021915 issued to him on July 13, 1993, expiring in January 1995, by the Chief, Firearms and Explosives Division, PNP under the signature of Reynaldo V. Velasco, Sr. Supt. (GSC) PNP, Chief, FEO.19 On the dorsal side of the printed computerized license, there is stamped the words "Validity of computerized license is extended until renewed license is printed" dated January 17, 1995, signed by Police Chief Inspector Franklin S. Alfabeto, Chief, Licence Branch, FEO.20 Coupled with this indefinite extension, petitioner paid the license fees for the extension of the license for the next two-year period. 21 Consequently, we find that petitioner was the holder of a valid firearm license for the .45 caliber Colt pistol seized in the bedroom of his house on June 15, 1996. 22 As required, petitioner presented the license to the head of the raiding team, Police Senior Inspector Jerito A. Adique of the Criminal Investigation Division Group, PNP.23 As a senior police officer, Senior Inspector Adique could easily determine the genuineness and authenticity of the computerized printed license presented. He must know the computerized license printed form. The stamp is clearly visible. He could decipher the words and the signature of the authorized signing official of the Firearms and Explosives Division, PNP. He belonged to the same national police organization. Nevertheless, Senior Insp. Adique rejected the license presented because, according to him, it was expired. However, assuming that the license presented was expired during the period January 1995 to January 1997, still, possession of the firearm in question, a .45 caliber Colt pistol with serial No. 70G23792, during that period was not illegal. The firearm was kept at home, not carried outside residence. On June 15, 1996, at the time of the seizure of the firearm in question, possession of firearm with an expired license was not considered unlawful,provided that the license had not been cancelled or revoked. Republic Act No. 8294, providing that possession of a firearm with an expired license was unlawful took effect only on July 7, 1997.24 It could not be given retroactive effect.25 According to firearm licensing regulations, the renewal of a firearm license was automatically applied for upon payment of the license fees for the renewal period. The expired license was not cancelled or revoked. It served as temporary authority to possess the firearm until the renewed license was issued. Meantime, the applicant may keep the gun at home pending

renewal of the firearm license and issuance of a printed computerized license. He was not obliged to surrender the weapon. Printed at the dorsal side of the computerized license is a notice reading: "IMPORTANT 1. This firearm license is valid for two (2) years. Exhibit this license whenever demanded by proper authority. 2. Surrender your firearm/s to the nearest PNP Unit upon revocation or termination of this license. Under any of the following instances, your license shall be revoked for which reason your firearm/s is/are subject to confiscation and its/their forfeiture in favor of the government. a. Failure to notify the Chief of PNP in writing of your change of address, and/or qualification. b. Failure to renew this license by paying annual license, fees, within six (6) months from your birth month. Renewal of your license can be made within your birth month or month preceding your birth month. Late renewal shall be penalized with 50% surcharge for the first month (from the first day to the last day of this month) followed by an additional 25% surcharge for all of the succeeding five (5) months compounded monthly. c. Loss of firearm/s through negligence. d. Carrying of firearm/s outside of residence without appropriate permit and/or carrying firearm/s in prohibited places. e. Conviction by competent court for a crime involving moral turpitude or for any offense where the penalty carries an imprisonment of more than six (6) months or fine of at least Pl,000.00. f. Dismissal for cause from, the service. g. Failure to sign license, or sign ID picture or affix right thumb mark. 3. Unauthorized loan of firearm/s to another person is punishable by permanent disqualification and forfeiture of the firearm in favor of the government. 4. If termination is due to death, your next of kin should surrender your firearm/s to the nearest PNP Unit. For those within Metro, Manila, surrender should be made with FEO, Camp Crame. 5. When firearms become permanently unserviceable, they should be deposited with the nearest PNP Unit and ownership should be relinquished in writing so that firearms may be disposed of in accordance with law. 6. Application for the purchase of ammunition should be made in case of a resident of Metro Manila direct to the Chief, FEO and for residents of a Province to secure recommendation letter to the nearest PNP Provincial Command who will thereafter endorse same to CHIEF, FEO for issuance of the permit. License must be presented before an authority to purchase ammo could be obtained." 26 Indeed, as heretofore stated, petitioner duly paid the license fees for the automatic renewal of the firearm license for the next two years upon expiration of the license in January, 1995, as evidenced by official receipt No. 7615186, dated January 17, 1995. 27 The license would be renewed, as it was, because petitioner still possessed the required qualifications. Meantime, the validity of the license was extended until the renewed computerized license was printed. In fact, a renewed license was issued on January 17, 1997, for the succeeding two-year period.28

Aside from the clearly valid and subsisting license issued to petitioner, on January 25, 1995, the Chief, Philippine National Police issued to him a permit to carry firearm outside residence valid until January 25, 1996, for the firearm in question. 29 The Chief, Philippine National Police would not issue a permit to carry firearm outside residence unless petitioner had a valid and subsisting firearm license. Although the permit to carry firearm outside residence was valid for only one year, and expired on January 25, 1996, such permit is proof that the regular firearm license was renewed and subsisting within the two-year term up to January 1997." A Permit to Carry Firearm Outside Residence presupposes that the party to whom it is issued is duly licensed to possess the firearm in question." 30 Unquestionably, on January 17, 1997, the Chief, Firearms and Explosives Division, PNP renewed petitioner's license for the .45 cal. Colt pistol in question. 31 Clearly then; petitioner had a valid firearm license during the interregnum between January 17, 1995, to the issuance of his renewed license on January 17, 1997. Finally, there is no rhyme or reason why the Court of Appeals and the trial court did not accept with alacrity the certification dated June 25, 1996, of P/Sr. Inspector Edwin C. Roque,32 Chief, Records Branch, Firearms and Explosives Division, PNP that Vicente N. del Rosario of Barangay Tigbe, Norzagaray, Bulacan is a licensed/registered holder of Pistol, Colt caliber .45 with serial number 70G23792, covered by computerized license issued dated June 15, 1995, with an expiry date January 1997. 33 Reinforcing the aforementioned certification, petitioner submitted another certification dated August 27, 1999, stating that Vicente N. del Rosario of Barangay Tigbe, Norzagaray, Bulacan, was issued firearm license No. RL-C1614021915, for caliber .45 Pistol with Serial Number 70G23792 , for the years covering the period from July 13, 1993 to January 1995, and the extension appearing at the back thereof for the years 1995 to 1997. 34 Had the lower courts given full probative value to these official issuances, petitioner would have been correctly acquitted, thus sparing this Court of valuable time and effort. "In crimes involving illegal possession of firearm, the prosecution has the burden of proving the elements thereof, viz.: (a) the existence of the subject firearm and (b) the fact that the accused who owned or possessed it does not have the license or permit to possess the same.35 The essence of the crime of illegal possession is the possession, whether actual or constructive, of the subject firearm, without which there can be no conviction for illegal possession. After possession is established by the prosecution, it would only be a matter of course to determine whether the accused has a license to possess the firearm."36 "Possession of any firearm becomes unlawful only if the necessary permit or license therefor is not first obtained. The absence of license and legal authority constitutes an essential ingredient of the offense of illegal possession of firearm and every ingredient or essential element of an offense must be shown by the prosecution by proof beyond reasonable doubt. Stated otherwise, the negative fact of lack or absence of license constitutes an essential ingredient of the offense which the prosecution has the duty not only to allege but also, to prove beyond reasonable doubt." 37 "To convict an accused for illegal possession of firearms and explosives under P. D. 1866, as amended, two (2) essential elements must be indubitably established, viz.: (a) the existence of the subject firearm or explosive which may be proved by the presentation of the subject firearm or explosive or by the testimony of witnesses who saw accused in possession of the same, and (b) the negative fact that the accused had no license or permit to own or possess the firearm or explosive which fact may be established by the testimony or certification of a representative of the PNP Firearms and Explosives Unit that the accused has no license or permit to possess the subject firearm or explosive." x x x We stress that the essence of the crime penalized under P. D. 1866 is primarily the accused's lack of license or permit to carry or possess the firearm, ammunition or explosive as possession by itself is not prohibited by law."38 Illegal possession of firearm is a crime punished by special law, a malum prohibitum, and no malice or intent to commit a crime need be proved. 39 To support a conviction, however, there must be possession coupled with intent to possess (animus possidendi) the firearm.40 In upholding the prosecution and giving credence to the testimony of police officer Jerito A. Adigui, the trial court relied on the presumption of regularity in the performance of official duties by the police officers.41 This is a flagrant error because his testimony is directly contradictory to the official records of the Firearms and Explosives Division, PNP, which must prevail. Morever, the presumption of regularity can not prevail over the Constitutional

presumption of innocence.42 Right from the start, P/Sr. Insp. Jerito A. Adigue was aware that petitioner possessed a valid license for the caliber .45 Colt pistol in question. Despite this fact, P/Sr. Insp. Adigue proceeded to detain petitioner and charged him with illegal possession of firearms. We quote pertinent portions of the testimony of petitioner: Q: What else did Adigue tell you after showing to him the license of your cal. .45 pistol and the alleged cal. .22 found in a drawer in your kitchen? A: He told me that since my firearm is licensed, he will return my firearm, give him ten thousand pesos (P10,000.00) and for me to tell who among the people in our barangay have unlicensed firearm, sir. Q: A: Q: How did he say about the ten thousand pesos? He said "palit kalabaw na lang tayo" sir. And what did you answer him?

A: I told him my firearm is licensed and I do not have money, if I have, I will not give him, sir, because he was just trying to squeeze something from me. Q: How about the unlicensed firearms in your barangay which he asked, from you? A: Q: A: Q: I said I do not know any unlicensed firearm in our barangay, sir. About the .22 cal. pistol, what was your answer to him? I told him that it was not mine, they planted it, sir. What did he say next?

A: He said that it is your word against mine, the Court will believe me because I am a police officer, sir. Q: What was your comment to what he said?

A: I said my firearm is licensed and we have Courts of law who do not conform with officials like you and then he laughed and laughed, sir." 43 The trial court was obviously misguided when it held that "it is a matter of judicial notice that a caliber .45 firearm can not be licensed to a private individual." 44 This ruling has no basis either in law or in jurisprudence.45 Second issue. The seizure of items not mentioned in the search warrant was illegal. With respect to the .22 caliber revolver with Serial No. 48673, that the police raiding team found in a drawer at the kitchen of petitioner's house, suffice it to say that the firearm was not mentioned in the search warrant applied for and issued for the search of petitioner's house. "Section 2, Article III of the Constitution lays down the general rule that a search and seizure must be carried out through or on the strength of a judicial warrant, absent which such search and seizure becomes 'unreasonable' within the meaning of said constitutional provision."46 "Supporting jurisprudence thus outlined the following requisites for a search warrant's validity, the absence of even one will cause" its downright nullification: (1) it must be issued upon probable cause; (2) the probable cause must be determined by the judge himself and not by the applicant or any other person; (3) in the determination of probable cause, the judge must examine, under oath or affirmation, the complainant and such witnesses as the latter may produce; and (4) the warrant issued must particularly describe the place to be searched and persons or things to be seized." 47 Seizure is limited to those items particularly described in a valid search warrant. Searching officers are without discretion regarding what articles they shall seize. 48 Evidence seized on the occasion of such

an unreasonable search and seizure is tainted and excluded for being the proverbial "fruit of a poisonous tree." In the language of the fundamental law, it shall be inadmissible in evidence for any purpose in any proceeding.49 In this case, the firearm was not found inadvertently and in plain view. It was found as a result of a meticulous search in the kitchen of petitioner's house. This firearm, to emphasize, was not mentioned in the search warrant. Hence, the seizure was illegal. 50 The seizure without the requisite search warrant was in plain violation of the law and the Constitution.51 True that as an exception, the police may seize without warrant illegally possessed firearm or any contraband for that matter, inadvertently found in plain view. However, "[t]he seizure of evidence in 'plain view' applies only where the police officer is not searching for evidence against the accused, but inadvertently comes across an incriminating object."52 Specifically, seizure of evidence in "plain view" is justified when there is: (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 had 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. 53 Hence, the petitioner rightly rejected the firearm as planted and not belonging to him. The prosecution was not able to prove that the firearm was in the effective possession or control of the petitioner without a license. In illegal possession of firearms, the possessor must know of the existence of the subject firearm in his possession or control. "In People v. de Gracia,54 we clarified the meaning of possession for the purpose of convicting a person under P. D. No.1866, thus: x x x '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.' x x x x Hence, the kind of possession punishable under P. D. No. 1866 is one where the accused possessed a firearm either physically or constructively with animus possidendi or intention to possess the same."55 That is the meaning of animus possidendi. In the absence of animus possidendi, the possessor of a firearm incurs no criminal liability. The same is true with respect to the 5.56 cal. magazine found in the bedroom of petitioner's daughter. The seizure was invalid and the seized items were inadmissible in evidence. As explained in People v. Doria,56 the "plain view" doctrine applies when the following requisites concur: (1) the law if enforcement officer is in a position where he has a clear view of a particular area or alias prior justification for an intrusion; (2) said officer inadvertently comes across (or sees in plain view) a piece of incriminating evidence; and (3) it is, immediately apparent to such officer that the item he sees may be evidence of a crime or a contraband or is otherwise subject to seizure." With particular reference to the two 2-way radios that the raiding policemen also seized in the bedroom of petitioner's daughter, there was absolutely no reason for the seizure. The if radios were not contraband per se.The National Telecommunications Commission may license two-way radios at its discretion. 57 The burden is on the prosecution to show that the two-way radios were not licensed. The National Telecommunication Commission is the sole agency authorized to seize unlicensed two-way radios. More importantly, admittedly, the twoway radios were not mentioned in the search warrant. We condemn the seizure as illegal and a plain violation of a citizen's right. Worse, the petitioner was not charged with illegal possession of the two-way radios.
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Consequently, the confiscation of the two 2-way radios was clearly illegal. The possession of such radios is not even included in the charge of illegal possession of firearms (violation of P. D. No. 1866, as amended) alleged in the Information.

WHEREFORE, the Court hereby REVERSES the decision of the Court of Appeals in CAG. R. CR No. 22255, promulgated on July 09, 1999. The Court ACQUITS petitioner Vicente del Rosario y Nicolas of the charge of violation of P. D. No. 1866, as amended by R. A. No. 8294 (illegal possession of firearms and ammunition), in Criminal Case No. 800-M-96, Regional Trial Court, Bulacan, Branch 20, Malolos. Costs de oficio. The Chief; Firearms and Explosives Division, PNP shall return to petitioner his caliber .45 Colt pistol, with Serial Number No. 70023792, the five (5) extra magazines and twenty seven (27) rounds of live ammunition, and the two 2-way radios confiscated from him. The Chief, Philippine National Police, or his duly authorized representative shall show to this Court proof of compliance herewith within fifteen (15) days from notice. The .22 caliber revolver with Serial No. 48673, and eight (8) live ammunition and the magazine for 5.56 mm. caliber Armalite rifle are confiscated in favor of the government.
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SO ORDERED. Davide, Jr., Puno, Kapunan, Ynares-Santiago, JJ., concur.

Footnotes:
1 In CA-G. R. CR No. 22255, promulgated on July 09,1999. Aquino, J., ponente, Mabutas, Jr. and Agnir, Jr., JJ., concurring. Petition, Annex "A", Rollo, pp. 21-28.

2 Regional Trial Court Records, pp. 2-3.

3 Ibid., p. 21.

4 Note well that petitioner is a resident of Barangay Tigbe, Norzagaray, Bulacan. The certification issued by P/Sr. Insp. Edwin C. Roque referred to Vicente "Vic" del Rosario of Barangay Bigte, Norzagaray, Bulacan.

5 Petition, Annex "A", Rollo, pp. 22-28, at pp. 23-24; CA Rollo, pp. 87-93, at pp. 88-89. Promulgated on July 13, 1998, Regional Trial Court Records, p. 173.

6 Notice of Appeal, dated July 17, 1998, Regional Trial Court Records, p. 175. Docketed as CA-G. R. CR No. 22255.

7 Rollo, pp. 22-28.

8 CA Rollo, pp. 94-116.

9 Resolution, Rollo, pp. 60-61.

10 Petition, filed on April 24, 2000. Rollo, pp. 9-20. On June 14,2000, we required respondent to comment on the petition (Rollo, p. 129). On October 26, 2000, respondent filed its comment (Rollo, pp. 143-156). On December 6, 2000, we gave due course to the petition (Temp. Rollo, pp. 1-2).

11 On the ground that the judge who issued the search warrant did not personally ask searching questions to the applicant and his witnesses (Prudente v. Dayrit, 180 SCRA 69 [1989]; Pendon v. Court of Appeals, 191 SCRA 429 [1990]; Silva v. RTC Negros Oriental, 203 SCRA 140 [1991].

12 Siguan v. Lim, 318 SCRA 725, 734 [1999]; de los Reyes v. Court of Appeals, 313 SCRA 632, 645 [1999]; American Express International, Inc. v. Court of Appeals, 308 SCRA 65, 69 [1999]; Pimentel v. Court of Appeals, 307 SCRA 38, 43 [1999].

13 Sta. Maria v. Court of Appeals, 349 Phil. 275, 282-283 [1998].

14 Guerrero v. Court of Appeals, 349 Phil. 605, 614 [1998].

15 See Exhibit "L", Folder of Exhibits, Regional Trial Court Records, p. 6.

16 See Petition, Annex "C", Supplement to the Motion for Reconsideration, Annex "B", Rollo, p. 57. We also checked these data from the records of the Commission on Elections.

17 But the trial court and the Court of Appeals ignored the sworn certification dated August 16, 1999, to the effect that Barangay Tigbe and Barangay Bigte, Norzagaray, Bulacan are two different and distinct barangays.

18 People v. Lazaro, 317 SCRA 435,446 [1999].

19 Exh. "1", Folder of Exhibits, Regional Trial Court Records, p. 10; See also p. 21.

20 See reverse side of Exhibit "1", back of p. 10 and p. 21.

21 Exh. "3-A", Folder of Exhibits, Regional Trial Court Records, p. 14; See also Exh. "1", ibid., p. 21.

22 The trial court, by taking judicial notice, ruled that a .45 cal. pistol can not be licensed; The trial court committed two errors here. One, for taking judicial notice of a disputed fact without hearing and receiving evidence thereon (Salamera v. Sandiganbayan, 303 SCRA 217 [1999]). Second, no law prohibits the licensing of a .45 cal pistol; the power to issue license is vested in the discretion of the Chief of Constabulary, now the Chief, Philippine National Police (Rules and Regulations Implementing P. D. No. 1866, Section 2).

23 TSN, November 26, 1996, p. 3.

24 People v. Mendoza, 301 SCRA 66, 82 [1999].

25 People v. de Vera, Sr., 308 SCRA 75, 100 [1999].

26 Exh. "1", dorsal side, Folder of Exhibits, Regional Trial Court Records, back of p. 21; see also Annex "5.2", CA Rollo, p. 112.

27 Exh. "3-A", Folder of Exhibits, Regional Trial Court Records, p. 14.

28 Motion for Reconsideration and/or new trial, Annex "5.1", Rollo, pp. 29-51, at p. 46; See also CA Rollo, pp. 94-116, at p. 111.

29 Exh. "3-b", Folder of Exhibits, Regional Trial Court Records, p. 15. See also Exhibit "1-Motion", ibid., p. 21.

30 Pastrano v. Court of Appeals, 346 Phil. 277,284 [1997].

31 Supra, Note 28.

32 He is the same P/Sr. Insp. Edwin C. Roque who certified on May 10, 1996, that one Vicente "Vic" del Rosario of barangay Bigte, Norzagaray, Bulacan is not a licensed/registered firearm holder of any kind and caliber, basis of the issuance of a search warrant. Supra, Note 15.

33 Exh. "2", Folder of Exhibits, Regional Trial Court Records, p. II. See also Exhibit "5", ibid., p. 18.

34 Supplement to the motion for reconsideration and/or new trial, Annex "C", CA Rollo, pp. 118-124, at p. 124.

35 People v. Castillo, 325 SCRA 613, 620 [2000]; People v. Dorimon, 321 SCRA 43, 48 [1999]; People v. Cerveto, 315 SCRA 611, 624 [1999]; Cadua v. Court of Appeals, 312 SCRA 703, 722 [1999]; People v. Khor, 307 SCRA 295, 311 [1999].

36 People v. Bansil, 304 SCRA 384, 394 [1999].

37 People v. Khor, supra, Note 35, at p. 310.

38 People v. Cortez, 324 SCRA 335, 344 [2000].

39 People v. Lubo, 101 Phil. 179 [1957], citing U. S. v. Go Chico, 14 Phil. 128 [1909]; People v. Bayona, 61 Phil. 181 [1935]; People v. Cava, G. R. No. L-9416, August 31, 1956 [unpublished].

40 People v. Lubo, supra, Note 39.

41 People v. Jubilag, 331 Phil. 897, 910 [1996].

42 People v. Figueroa, G. R. No.134056, July 6, 2000.

43 TSN, November 26, 1996, pp. 7-9.

44 Decision, Regional Trial Court Records, pp. 147-171, at p. 168.

45 Supra, Note 22.

46 People v. Montilla, 349 Phil. 640, 656 [1998].

47 Republic v. Sandiganbayan, 325 Phil. 762, 821-822 [1996].

48 Uy Kheytin v. Villareal, 42 Phil. 886 [1933]. In Roan v. Gonzales, 145 SCRA 687, there was a search warrant but it was declared invalid because of failure to conduct proper examination. The seizure of guns not described in the warrant was held illegal because there was no valid search warrant, and the articles seized were not in plain view but deliberately sought (taken from A Handbook on Arrest, Search and Seizure and Custodial Investigation, by Justice Oscar M. Herrera, 1994 ed., p. 178).

49 People v. Valdez, G. R. No. 129296, September 25, 2000.

50 People v., Doria, 301 SCRA 668 [1999]. Cf. Veroy v. Layaque, 210 SCRA 97 [1992], the seizure of a gun found inside an unlocked drawer was rejected because there was no valid search.

51 Ibid., at p. 716, citing Section 2, Bill of Rights, 1987 Constitution.

52 People v. Valdez, supra, Note 49.

53 People v. Aruta, 351 Phil. 868, 879 [1998].

54 233 SCRA 716, 725, 727 [1994].

55 People v. de la Rosa, 348 Phil. 173, 184-185 [1998], citing People v. Soyang, 110 Phil. 565 [1960].

56 Supra, Note 50, concurring opinion of Justice Artemio V. Panganiban, pp. 726-727, citing People v. Musa, 217 SCRA 597, 611 [1993].

57 Rep. Act No. 3846, as amended.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 153254 September 30, 2004

PEOPLE OF THE PHILIPPINES, appellee, vs. EDEN DEL CASTILLO, appellant. DECISION AUSTRIA-MARTINEZ, J.: Eden del Castillo appeals from the decision dated June 27, 2001 1 of the Regional Trial Court of Cebu City, Branch 18, in Criminal Case No. CBU-54778, finding her guilty of violation of Section 16, Article III of R.A. No. 6425, otherwise known as Dangerous Drugs Act of 1972, as amended; and imposing on her the penalty of reclusion perpetua. She was indicted under an Information dated August 2, 2000 which reads:

That on or about the 31st day of July 2000, at about 10:30 A.M., in the City of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the said accused, with deliberate intent and without being authorized by law, did then and there have in her possession and control or use the following: A- Three (3) big heat sealed plastic packs of white crystalline substance weighing 294.86 grams; B- Eight (8) medium heat sealed plastic packs of white crystalline substance weighing 12.33 grams; C- Fifty three (53) heat sealed plastic packets of white crystalline substance weighing 4.75 grams locally known as "shabu", containing Methylamphetamine Hydrochloride, a regulated drug, without the corresponding license or prescription. CONTRARY TO LAW.2 Upon her arraignment, appellant, with the assistance of counsel, pleaded not guilty to the crime charged.3 Trial thereafter ensued. The prosecution presented the following witnesses: PO3 Leopoldo Bauzon, PO3 Alfredo Petallar, P/Insp. Mutchit Salinas and PO2 Brazilio Borinaga. Their testimonies proved the following facts: On July 21, 2000, a search warrant was issued by Judge Isaias Dicdican of the Regional Trial Court, Branch 11, Cebu City, authorizing the search and seizure of shabu and its paraphernalias in the house of appellant located in M. Borgonia Street, Hayco, Mabolo, Cebu City.4 At about 10:30 in the morning of July 31, 2000, a team composed of Police Chief/Insp. Pablo Gacayan Labra II, Bauzon, Petallar and Borinaga, PO2 Ricardo Baclayon, Jr. and PO1 Jeric Cuyos Toring, went to the subject house to implement the search warrant.5 The police officers accompanied by three barangay tanods, namely: Wilfredo Wasawas, Mansueto Toong and Leonico Sagosa, entered the house, saw appellant and served the warrant on her. 6 At that time, appellant was with her grandmother Elena Rivaral Garcia, the registered owner of the house, and Servando del Castillo, appellants brother, in the living room. The police officers "pressed" them by telling them not to move and they were asked to just sit down while the search was on-going.7 The raiding team divided themselves into two searching groups. The first group composed of Bauzon, Toring and one barangay tanod searched the upper portion of the house and found three large plastic packs of white crystalline substance. 8 The second group, composed of Baclayon and Borinaga, searched the ground floor and found eight medium heat-sealed plastic packs of white crystalline substance and fifty-three heat-sealed plastic packets of white crystalline substance; two disposable lighters, one pair of scissors, one tooter, one puller and an improvised hacksaw.9 Servando voluntarily surrendered five small packs of white crystalline substance.10Appellant was arrested and informed of her constitutional rights, specifically, the right to counsel to which she replied that she has a lawyer who will represent her.11 Petallar then prepared an inventory of the seized articles and appellant was made to sign the same.12 PO3 Bauzon and PO3 Petallar explained that the inventory receipt was dated July 24, 2000 although the raid was conducted on July 31 because their office had earlier prepared the blank form. 13 A copy of the inventory was given to a tanod14 and thereafter appellant and Servando were brought to the police station while the items seized were brought to the Philippine National Police (PNP) Crime Laboratory for examination. 15 P/Insp. Mutchit Salinas, chemist of the PNP Regional Crime Laboratory Office, who conducted the laboratory test on these substances confirmed that the specimens submitted for testing were positive for the presence of methamphetamine hydrochloride known as shabu.16

The defense presented the following witnesses: Elena R. Garcia, Jaime Garcia and appellant herself who testified to establish the following facts: The house subject of the search on July 31, 2000 was owned by Elena, appellants grandmother, and her late husband, Jose Garcia, as evidenced by a copy of Tax Declaration No. 01-30651 in the name of Jose Garcia; 17 that only Brent Lepiten, Elenas grandson, was living in the house while appellant was living with her parents in San Vicente Village, Wireless, Mandaue City, a distance of about five kilometers from Elenas place.18 On July 31, 2000, Elena, who was in the upper portion of the house with her son, Jaime, who happened to sleep in her house the night before because he had a drinking spree with some friends, went downstairs because of the thudding sound from their door.19 Appellant, who was in the house to visit her grandmother, was having breakfast when the door was opened. Several men entered the house and instructed them to sit down. Two of these men carrying an envelope went upstairs and woke up Jaime Garcia. 20 Jaime then went downstairs and these two men without the envelope followed two minutes later. 21Appellant and the other occupants were told to wait for the arrival of the tanods. Then, the same two men who earlier went upstairs went up again with a tanod and when they came down, they had with them an envelope, the contents of which were spread on the table and were listed down.22 Appellant was then asked to sign a paper where a listing of the contents of the envelope was made but she requested to contact her lawyer which was denied.23 She was forced to sign otherwise she would be handcuffed.24 The list of the inventory was neither read to her nor did they leave a copy for her or to any of the occupants. 25 Appellant declared that the search warrant was served on her but she never read it nor was it read to her.26 On June 27, 2001, the trial court rendered its assailed decision 27 finding appellant guilty as charged. The decretal portion of the decision reads: WHEREFORE, finding accused Eden del Castillo guilty beyond reasonable doubt of the crime charged, the accused is hereby sentenced to suffer the penalty of Reclusion Perpetua. The seized or confiscated items are declared forfeited in favor of the government and the same shall be disposed of in the manner allowed by law. 28 In convicting appellant, the trial court ratiocinated: After a careful analysis of the testimonial and documentary evidence on record, the Court is of the well considered view and so holds that the prosecution was able to establish the fact that the accused had indeed, with deliberate intent and without being authorized by law, in her possession and control or use on or about July 31, 2000 at about 10:30 A.M. the following: A - Three (3) big heat sealed plastic packs of white crystalline substance weighing 294.86 grams; B - Eight (8) medium heat sealed plastic packs of white crystalline substance weighing 12.33 grams; C - Fifty three (53) heat sealed plastic packets of white crystalline substance weighing 4.75 grams locally known as "shabu", containing Methylamphetamine Hydrochloride, a regulated drug, without the corresponding license or prescription. The members of the Philippine National Police (PNP), by virtue of a Search Warrant issued against Eden Garcia del Castillo by Judge Isaias Dicdican and implemented on July 31, 2000 resulted in the acquisition of said items. The items were submitted to the PNP Crime Laboratory for analysis and the result is positive for the presence of Methylamphetamine Hydrochloride, or locally known as shabu. No less than the accused signed the Receipt for

Confiscated Articles signifying that the Raiding Team of the Philippine National Police had actually seized and confiscated certain items or articles from the herein accused. The prosecution then was able to establish the guilt of the accused beyond reasonable doubt. Section 16 of Article III of Republic Act No. 6425, as amended, known as the Dangerous Drugs Act of 1972, as amended by R.A. 7659 reads as follows: SEC. 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. Section 20, Article IV of Republic Act No. 6425, as amended, known as the Dangerous Drugs Act of 1972, as amended by R.A. 7659 reads as follows: SEC. 20. Application of Penalties, Confiscation and Forfeiture of the Proceeds or Instruments of the Crime. The penalties for offenses under Sections 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: ... 3. 200 grams or more of shabu or methylampetamine hydrochloride; . . .29 Hence, the instant appeal with the following assignment of errors: 30 I THE LOWER COURT ERRED IN FAILING TO STATE IN ITS JUDGMENT A CLEAR AND DISTINCT FINDINGS OF FACTS (WHICH) PROVED THAT ACCUSED DID NOT OWN THE HOUSE WHICH WAS SEARCHED. II THE LOWER COURT ERRED IN FAILING TO STATE IN ITS JUDGMENT THAT THE ARTICLES SEIZED BY VIRTUE OF A SEARCH WARRANT WERE NOT TURNED OVER TO THE ISSUING COURT IN VIOLATION OF THE LAW. III THE LOWER COURT ERRED IN NOT FINDING THAT THE RAIDING TEAM FAILED TO ISSUE A DETAILED RECEIPT OF SEIZED ARTICLES AND TO GIVE A COPY THEREOF TO THE LAWFUL OCCUPANT IN VIOLATION OF THE LAW. IV THE LOWER COURT ERRED IN NOT FINDING THAT BY THE RAIDING TEAM ORDERING ACCUSED TO SIGN THE INVENTORY AFTER THE ARREST WITHOUT THE ASSISTANCE OF COUNSEL IS VIOLATIVE OF HER CONSTITUTIONAL RIGHT. V THE LOWER COURT ERRED IN NOT FINDING THAT THE RAID WAS IN VIOLATION OF THE PRIVACY OF ELENA R. GARCIA, AS OWNER OF THE HOUSE BEING SEARCHED, AND NOT THE HOUSE OF ACCUSED EDEN DEL CASTILLO. VI

THE LOWER COURT ERRED IN NOT ACQUITTING THE ACCUSED. The Office of the Solicitor General (OSG) filed a Manifestation and Motion in lieu of appellees brief praying that the decision under consideration be reversed and set aside and that the appellant be acquitted. We agree with the OSG. The appeal is meritorious. Section 16 of Article III of the Dangerous Drugs Act of 1972, as amended, provides: SEC. 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. 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. In People vs. Tira,31 we explained the concept of possession of regulated drugs, to wit: 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. 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. Exclusive possession or control is not necessary. 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. Thus, conviction need not be predicated upon exclusive possession, and a showing of nonexclusive possession would not exonerate the accused. 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 of the presence of the drug in the place under his control and dominion and the character of the drug. 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 drugs 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. Prosecution witnesses failed to establish that the house where the shabu and other shabu paraphernalias were found belongs to appellant. On the other hand, defense evidence clearly showed that the subject house belongs to appellants grandmother, Elena Garcia, who testified in direct examination as follows: ATTY. RIVERAL: Q You stated in your personal circumstances that you are a resident of Mabolo, Cebu City. Do you own a house? A Yes, I owned a house. Q With whom are you living therewith? A My grandson.

Q What is the name of your grandson living with you at that house? A Brent Lepiten. Q You stated that you owned a house in Mabolo, Cebu City which was the subject of the search. Do you have any evidence to show that you owned that house? A Yes, I have. Q Showing to you this machine copy which is Tax Declaration No. 01-30651 in the name of Jose Garcia. Is this the tax declaration evidencing your ownership and possession of your house? A Yes, that is the one. Q How are you related to Jose Garcia? A My husband. Q Where is he now? A He is already dead. ATTY. RIVERAL: We request Your Honor that the machine copy of the tax declaration be marked as our Exhibit "1". COURT: Mark it. ATTY. RIVERAL: Q The house which you mentioned belongs to you, how many storeys are there? A Two storeys. ATTY. RIVERAL: Q You mean the ground floor and the upper portion? A Yes, sir. Q Where do you usually take your rest in the evening? A In the upper portion. Q Do you know accused Eden del Castillo? A Yes, she is one of my grandchildren. Q Where is she living? A San Vicente Village, Wireless, Mandaue City. Q Is accused Eden del Castillo still single? A She is still single.

Q With whom is she living with before the arrest? A Together with her auntie Edna Aballe. Q How about her parents? A Sometime(s) when they traveled at Badian only Eden is in the house together with her auntie but they stayed in their house. Q On July 31, 2000 in that evening who was sleeping at the upper portion of your house? A Myself and my grandson. Q You are mentioning of Jaime, who is this Jaime? FISCAL LABORTE: The witness was only asked who slept at the upper portion and she answered myself and my grandson. ATTY. RIVERAL: Q You mentioned one Jaime Garcia, why was he there? A This Jaime was able to sleep in the house at that time considering that his wife was abroad. ... ATTY. RIVERAL: Q That Jaime Garcia you said where did he take his rest that night? A At our house. Q In what portion thereof? A At the upper portion.32 The evidence of the prosecution failed to establish by competent evidence that appellant is the owner or at least shared the ownership of the house where the shabu was found. PO3 Petallar testified that based on their own casing operation, appellant frequented the subject house to eat meals;33 that they were not sure that the house was owned by appellant but only believed that she had belongings therein since she frequented the same. 34 PO2 Borinaga testified it was a public knowledge that appellant was living in the subject house since she was a child.35Thus, there is no competent evidence that appellant had control and dominion over the place where the shabuwas found. The claim of appellant that she has her residence in San Vicente Village, Wireless, Mandaue City and that she was only a visitor in the house that belongs to her grandmother at the time of the search was not rebutted by convincing evidence. While it is not necessary that the property to be searched or seized should be owned by the person against whom the search warrant is issued, however, there must be sufficient showing that the property is under appellants control or possession. 36 The prosecution likewise failed to prove appellants possession of the shabu at the time of her arrest. It bears stressing that at the time the raiding team conducted the search, appellant and the other occupants were asked to stay in the living room. PO3 Petallar did not find any drugs on appellants body nor was there anything unusual or suspicious noted in her person.37

Notably, the policemen testified that they found the shabu in the upper portion of the house, however, it was not shown at all in whose room it was found. In fact, the defense evidence showed that at the time the two policemen went upstairs, Jaime Garcia, appellants uncle, was asleep and was awakened by the policemen who asked him to go down. This was corroborated by PO2 Borinaga who testified on cross-examination that while he was downstairs, there was a person upstairs who came down. 38 Moreover, it was appellants grandmother and the latters grandson, Brent, who were staying in the upper portion of the house. Also, the shabu found at the ground floor of the house does not conclusively establish that it belongs to appellant since it was not found together with the other things of appellant. To reiterate, she was not the only person who had access to the entire house. In fact, it was also shown by the prosecution that a certain Servando, appellants brother, voluntarily surrendered five small plastic packs of white crystalline substance. We find that the prosecution failed to prove convincingly that the seized shabu belonged to appellant. Moreover, the manner in which the search was conducted on the subject house failed to comply with the mandatory provisions of Section 8 (formerly Section 7), Rule 126 of the Rules of Court, which provides: SEC. 8. Search of house, room, or premises, to be made in presence of two witnesses No search of a 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, two witnesses of sufficient age and discretion residing in the same locality. Clearly, the search of the house must be done in the presence of the lawful occupants and it is only in the absence of the former that two witnesses of sufficient age and discretion residing in the same locality may be called upon to witness the search. While appellant and the other occupants of the house were present during the search, they were not allowed to actually witness the search of the premises. They were in the words of the policemen "pressed," i.e., they were asked to stay put in the sala where they were seated while the simultaneous search was on-going in the upper and lower portions of the house. 39 They should be the ones that should have accompanied the policemen while the search was being done and not substituted by the barangay tanods in their stead. We held in People vs. Go:40 As pointed out earlier, the members of the raiding team categorically admitted that the search of the upper floor, which allegedly resulted in the recovery of the plastic bag containing the shabu, did not take place in the presence of either the lawful occupant of the premises, i.e. appellant (who was out), or his son Jack Go (who was handcuffed to a chair on the ground floor). Such a procedure, whereby the witnesses prescribed by law are prevented from actually observing and monitoring the search of the premises, violates both the spirit and the letter of the law: Furthermore, the claim of the accused-appellant that the marijuana was planted is strengthened by the manner in which the search was conducted by the police authorities. The accused-appellant was seated at the sala together with Sgt. Yte when they heard someone in the kitchen uttered "ito na". Apparently, the search of the accused-appellants house was conducted in violation of Section 7, Rule 126 of the Rules of Court which specifically provides that no search of a 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 (2) witnesses of sufficient age and discretion residing in the same locality. This requirement is mandatory to ensure regularity in the execution of the search warrant. Violation of said rule is in fact punishable under Article 130 of the Revised Penal Code. As we have ruled in Eduardo Quintero vs. The National Bureau of Investigation, et al., a procedure, wherein members of a raiding party can roam around the raided premises unaccompanied by any witness, as the only witnesses available as prescribed by law are made to witness a search conducted by the other members of the raiding party in another part of the house, is violative of both the spirit and letter of the law.

That the raiding party summoned two barangay kagawads to witness the search at the second floor is of no moment. The Rules of Court clearly and explicitly establishes a hierarchy among the witnesses in whose presence the search of the premises must be conducted. Thus, Section 8, Rule 126 provides that the search should be witnessed by "two witnesses of sufficient age and discretion residing in the same locality" only in the absence of either of the lawful occupant of the premises or any member of his family. Thus, the search of appellants residence clearly should have been witnessed by his son Jack Go who was present at the time. The police officers were without discretion to substitute their choice of witnesses for those prescribed by the law. ... The search conducted by the police officers of appellants residence is essentially no different from that inPeople v. Del Rosario where this Court observed: We thus entertain serious doubts that the shabu contained in a small canister was actually seized or confiscated at the residence of the accused-appellant. In consequence, the manner the police officers conducted the subsequent and much delayed search is highly irregular. Upon barging into the residence of the accused-appellant, the police officers found him lying down and they immediately arrested and detained him in the living room while they searched the other parts of the house. Although they fetched two persons to witness the search, the witnesses were called in only after the policeman had already entered accused-appellants residence (PP. 22-23, tsn, December 11, 1991), and therefore, the policemen had more ample time to plant the shabu. Corollary to the Constitutional precept that, in all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved (Section 14[2], Article III, Constitution of the Republic of the Philippines) is the rule that in order to convict an accused the circumstances of the case must exclude all and each and every hypothesis consistent with his innocence (People vs. Tanchoco, 76 Phil 463 [1946]; People vs. Constante, 12 SCRA 653[1964]; People vs. Jara, 144 SCRA 516[1986] ). The facts of the case do not rule out the hypothesis that accused-appellant is innocent. We also find that the raiding team failed to comply with the procedures on search and seizures provided under Sections 11 and 12, Rule 126 of the Rules on Criminal Procedure, to wit: SEC. 11. Receipt for the property seized. The officer seizing the property under the warrant must give a detailed receipt for the same to the lawful occupant of the premises in whose presence the search and seizure were made, or in the absence of such occupant, must, in the presence of at least two witnesses of sufficient age and discretion residing in the same locality, leave a receipt in the place in which he found the seized property. SEC. 12. Delivery of property and inventory thereof to the court. The officer must forthwith deliver the property seized to the judge who issued the warrant, together with a true inventory thereof duly verified under oath. Clearly, the detailed receipt of the inventory must be given to the lawful occupant. In this case, however, PO3 Petallar admitted that the inventory receipt was given to the barangay tanod41 despite the presence of the appellant and her grandmother which is a violation of the rule. Likewise, the police officers failed to deliver the seized items to the court which issued the search warrant. It was commanded in the search warrant that the seized articles be brought to the court which issued it to be dealt with as the law directs. Under the rule, the seized property must be delivered by the officer to the judge who issued the warrant. It must be accompanied with a true inventory thereof duly verified. The police officers all testified that the confiscated shabu was brought to the PNP Crime Laboratory for examination. Faced with the same circumstance, we held in People vs. Gesmundo:42

On the issue of non-delivery of the seized marijuana to the court, the trial court held that it takes judicial notice of the usual practice of the San Pablo City police force of retaining possession of confiscated specimens suspected of being marijuana by immediately forwarding them to the NBI or to an NBI accredited physician for preliminary examination and/or laboratory examination before filing a case with the city prosecutors office. The mere tolerance by the trial court of such a practice does not make it right. Clearly, such practice violates the mandatory requirements of the law and defeats the very purpose for which they were enacted. Speculations as to the probability of tampering with the evidence cannot then be avoided. The trial judge cites the case of Yee Sue Koy, et al vs. Mariano Almeda , et al. (70 Phil 141) to justify the retention by the police and the NBI of the custody of the allegedly confiscated specimens. While in said decision, this court recognized the fact that the objects seized were retained by the agents of the Anti-Usury Board, instead of being turned over to the Justice of the Peace of Sagay, yet the Court also held that it was "for the reason that the custody of said agents is the custody of the issuing officer or court, the retention having been approved by the latter." Thus, approval by the court which issued the search warrant is necessary for the retention of the property seized by the police officers; and only then will their custody be considered custody of the court. Absent such approval, the police officers have no authority to retain possession of the marijuana and more so, to deliver the property to another agency, like the NBI.43 Moreover, the inventory receipt was not certified under oath by any of the members of the raiding team as required by the rule but was signed only by appellant and her brother. The trial court erred in relying on the receipt of confiscated articles to establish that the raiding team had actually seized the listed items therein. First, it is highly irregular that the inventory receipt was dated July 24, 2000 when the actual raid was conducted on July 31, 2000. We find the explanation unacceptable given that the receipt was already prepared earlier than the search. Such discrepancy affects the integrity of the inventory receipt. Second, appellant signed the receipt without the assistance of counsel. It was established that at the time she signed the receipt, she was already under custodial investigation. The testimony of PO3 Petallar is revealing: Q When you saw the articles seized you were of the impression that they were illegal? A Yes, sir. Q Because of that impression you held Eden del Castillo in custody of the law? A Yes, sir. Q You handcuffed Eden del Castillo immediately? A No, we do (sic) not handcuffed (sic) Eden del Castillo. Q Although you do (sic) not handcuffed (sic) Eden del Castillo, the accused but virtually she was already held in custody of the law? A We effected the arrest. Q So you begun listing down the articles which is supposedly seized? A Upon the delivery of the seized articles from the searching parties I began listing. Q You listed the articles in that prepared form, correct? A Yes, sir.44

Q In your joint affidavit, you stated in paragraph 7 "That we informed her Constitutional Right provided under the 1987 Phil. Constitution?" A Yes, sir. Q You informed her of her right under the Constitution because you wanted her to claim ownership of the seized articles? A We just informed her about her constitutional right. Q So that after informing her of her constitutional right she signed this receipt or inventory of seized articles, correct? A Yes, sir. Q So you asked her by interrogation or question whether or not you will concur to the entries listed in this inventory? A Yes, sir. Q You also asked her that the search was conducted in a very orderly manner? A Yes, sir. Q You also asked her that nothing was destroyed or lost inside the house? A Yes, sir. Q That you also asked her that the members of the raiding team did not in any manner subjected (sic) them to unreasonable treatment? A Yes, sir. Q And that they were not exposed to embarrassment? A Yes, sir. Q Since you shoot (sic) several questions and informing her of the constitution(al) right(s) under the 1987 Constitution did you tell her that you have the right to be assisted by counsel? A I told her that. ... COURT: Q After you had told the accused that she is entitled to have counsel now what did the accused say, if any? A She told me that she would get a lawyer. ATTY. RIVERAL: Q In effect, did she get a lawyer? A Not immediately. ...

Q Thereafter was she able to get a lawyer? A When we arrived at the camp her sister told us that she had already hired a lawyer. Q In effect, did that lawyer appear in the camp? A I never saw. Q So accused would (sic) sign (sic) that instrument without the assistance of counsel? A Yes, sir.45 While PO3 Petallar testified that appellant was read her constitutional right, it was not clearly shown that she was informed of her right not to sign the receipt and that it can be used as an evidence against her. If appellant was indeed informed of her constitutional right, it is unusual for her to sign the receipt acknowledging ownership of the seized items without the assistance of counsel considering that she wanted to get a lawyer. In People vs. Go,46 we found the inventory receipt signed by appellant inadmissible for being violative of her custodial right to remain silent, thus: After the inventory had been prepared, PO2 Abulencia presented it to appellant for his signature without any showing that appellant was informed of his right not to sign such receipt and to the assistance of counsel. Neither was he warned that the same could be used as evidence against him. Faced with similar circumstances, this Court in People v. Gesmundo stated: It is true that the police were able to get an admission from the accusedappellant that marijuana was found in her possession but said admission embodied in a document entitled "PAGPAPATUNAY" previously prepared by the police, is inadmissible in evidence against the accused-appellant for having been obtained in violation of her rights as a person under custodial investigation for the commission of an offense. The records show that the accused-appellant was not informed of her right not to sign the document; neither was she informed of her right to the assistance of counsel and the fact that the document may be used as evidence against her. In People vs. Policarpio, this Court held that such practice of inducing suspects to sign receipts for property allegedly confiscated from their possession is unusual and violative of the constitutional right to remain silent, viz: What the records show is that appellant was informed of his constitutional right to be silent and that he may refuse to give a statement which may be used against him, that is why he refused to give a written statement unless it is made in the presence of his lawyer as shown by the paper he signed to this effect. However, he was made to acknowledge that the six (6) small plastic bags of dried marijuana leaves were confiscated from him by signing a receipt and to sign a receipt for the P20.00 bill as purchase price of the dried marijuana leaves he sold to Pat. Mangila. Obviously the appellant was the victim of a clever ruse to make him sign these alleged receipts which in effect are extra-judicial confessions of the commission of the offense. Indeed it is unusual for appellant to be made to sign receipts for what were taken from him. It is the police officers who confiscated the same who should have signed such receipts. No doubt this is a violation of the constitutional right of the appellant to remain silent whereby he was made to admit the commission of the offense without informing him of his right. Such a confession obtained in violation of the Constitution is inadmissible in evidence. The Inventory Receipt signed by appellant is thus not only inadmissible for being violative of appellants custodial right to remain silent; it is also an indicium of the irregularity in the manner by which the raiding team conducted the search of appellants residence.

Assuming arguendo that appellant did waive her right to counsel, such waiver must be voluntary, knowing and intelligent. To insure that a waiver is voluntary and intelligent, the Constitution47 requires that for the right to counsel to be waived, the waiver must be in writing and in the presence of the counsel of the accused. 48 There is no such written waiver in this case, much less was any waiver made in the presence of the counsel since there was no counsel at the time appellant signed the receipt. Clearly, appellant affixed her signature in the inventory receipt without the assistance of counsel which is a violation of her right under the Constitution. In all criminal cases, it is appellants constitutional right to be presumed innocent until the contrary is proved beyond reasonable doubt. Thus in People vs. Del Norte,49 we said: We detest drug addiction in our society. However, we have the duty to protect appellant where the evidence presented shows "insufficient factual nexus" of her participation in the commission of the offense charged. In People vs. Laxa, we held: The governments drive against illegal drugs deserves everybodys support. But it cannot be pursued by ignoble means which are violative of constitutional rights. It is precisely when the governments purposes are beneficent that we should be most on our guard to protect these rights. As Justice Brandeis warned long ago, "the greatest dangers to liberty lurk in the insidious encroachment by men of zeal, well meaning without understanding." WHEREFORE, the decision appealed from is REVERSED and SET ASIDE on the ground that the prosecution failed to establish the guilt of appellant Eden del Castillo. She is hereby ACQUITTED of the crime charged against her and her immediate release from confinement is hereby ordered unless she is lawfully held in custody for another cause. The Director of the Bureau of Corrections is ordered to forthwith implement this decision and to inform this Court, within ten (10) days from receipt hereof, of the date appellant was actually released from confinement. The shabu and other shabu paraphernalias seized during the search are forfeited in favor of the State. SO ORDERED. Puno, Callejo, Sr., Tinga, and Chico-Nazario*, JJ., concur. Footnotes
*

On Leave. Penned by Judge Galicano C. Arriesgado Original Records, p.1; Rollo, pp. 7-8. Original Records, p. 16. Original Record, p. 8 Defense Exhibit "2."

TSN, September 12, 2000, p. 5 (Bauzon); TSN, October 12, 2000, p. 4 (Petallar); and, TSN, January 4, 2001, p. 3 (Borinaga).
5

TSN, September 21, 2000, p. 4 (Bauzon); TSN, October 12, 2000, p. 5 (Petallar); and, TSN, January 4, 2001, p. 3 (Borinaga).
6

TSN, September 21, 2000, p. 12 (Bauzon); TSN, October 12, 2000, p. 12 (Petallar); and, TSN, January 4, 2001, p. 9 (Borinaga).
7

TSN, September 21, 2000, p. 4 (Bauzon); TSN, October 12, 2000, pp. 6-7 (Petallar); and, TSN, January 4, 2001, p. 5 (Borinaga).
8

TSN, September 21, 2000, p. 5 (Bauzon); and, TSN, January 4, 2001, p. 6 (Borinaga).
9

TSN, September 21, 2000, p. 7 (Bauzon); TSN, October 12, 2000, p. 7 (Petallar); and, TSN, January 4, 2001, p. 6 (Borinaga).
10

TSN, October 12, 2000, pp. 7-10 (Petallar); and, TSN, January 4, 2001, pp. 13-14 (Borinaga).
11

TSN, September 21, 2000, pp. 5-6 (Bauzon); TSN,October 12, 2000, p. 14 (Petallar); and, TSN, January 9, 2001, pp. 6-7 (Borinaga).
12

TSN, September 21, 2000, p.18 (Bauzon); and, TSN, October 12, 2000, p. 8 (Petallar).
13 14

TSN,October 12, 2000, p. 9 (Petallar).

TSN, September 21, 2000, p. 8 (Bauzon); TSN,October 12, 2000, p. 9 (Petallar); and, TSN, January 9, 2001, p. 7 (Borinaga).
15 16

TSN, December 5, 2000, pp. 4-7. TSN, February 1, 2001, p. 4. Id. at p. 5. Id. at p. 6.

17

18

19

TSN, February 1, 2001, p. 4 (Elena); TSN, February 27, 2001, p. 4 (Jaime); and, TSN, March 13, 2001, p. 6 (appellant).
20

TSN, February 1, 2001, p. 7 (Elena); TSN, February 27, 2001, p. 5 (Jaime); and, TSN, March 13, 2001, p. 6 (appellant).
21

TSN, February 1, 2001, p. 8 (Elena); TSN, February 27, 2001, p. 6 (Jaime); and, TSN, March 13, 2001, p. 7 (appellant).
22 23

TSN, March 13, 2001, p. 7. Id. at p. 8. Ibid. Id. at p. 9. Original Records, pp. 102-109. Id. at p. 109. Id. at pp.108-109. Rollo, pp. 53-54. G.R. No. 139615, May 28, 2004. TSN, Feb.1, 2001, pp. 4-5.

24

25

26

27

28

29

30

31

32

33

TSN, October 12, 2000, p.10. Id. at p. 11. TSN, January 4, 2001, p. 14.

34

35

People vs. Dichoso, 223 SCRA 174, 191 (1993), citing Burgos vs. Chief of Staff, 133 SCRA 800 (1984).
36 37

TSN, October 12, 2000, p. 13. TSN, January 4, 2001, pp. 10-11.

38

TSN, September 21, 2000, p. 12 (Bauzon); TSN, October 12, 2000, p. 12 (Petallar); and, TSN, January 4, 2001, p. 9 (Borinaga).
39 40

G.R. No. 144639, September 12, 2003. TSN, October 12, 2000, p. 9. 219 SCRA 743 (1993). Id. at pp. 753-754. TSN, November 9, 2000, pp. 3-4. Id. at pp. 7-9. See note 40. People vs. Ramos, 186 SCRA 184, 191 (1990). Art. III, Section 12(1). G.R. No. 149462, March 29, 2004. Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

41

42

43

44

45

46

47

48

49

G.R. No. 132371

April 9, 2003

PEOPLE OF THE PHILIPPINES, appellee, vs. DANILO SIMBAHON y QUIATZON, appellant. YNARES-SANTIAGO, J.: On April 22, 1995, the Regional Trial Court of Manila, Branch 23, issued Search Warrant No. 95-100, 1 commanding the search in the premises of 771 Roxas Street, Sampaloc, Manila, owned by appellant Danilo Simbahon y Quiatzon, for alleged violation of Republic Act No. 6425, otherwise known as the Dangerous Drugs Act of 1972, as amended, and Presidential Decree No. 1866, penalizing the illegal possession of firearms. The search led to the prosecution and conviction of appellant for violation of Section 8, Article III of RA 6425 by the Regional Trial Court of Manila, Branch 9, in Criminal Case No. 95-142514.

The facts as narrated by the trial court are as follows: Stripped of their immaterialities, the prosecution's evidence tends to establish that about 3:00 o'clock in the early morning of April 23, 1995, police operatives, together with the chairman of the barangay which had jurisdiction over the place, and a member of media, served Search Warrant No. 95-100, Exhibit "F", issued by Hon. Judge William Bayhon on April 22, 1995, upon Danilo Simbahon, Maricar Morgia, and Charito Mangulabnan at their residence at No. 771 Roxas Street, Sampaloc, Manila, that although at first they were met with slight resistance, the team nevertheless gained entry into the house and, rounding up all the occupants found therein, herded them to the sala. Thereafter, they began conducting a search of all the rooms in accordance with the search warrant; that in the room occupied by live-in partners Danilo Simbahon and Charito Mangulabnan, the police officers found under the bed a brick of dried flowering tops suspected to be marijuana, weighing 856.8 grams, wrapped in a newspaper and placed inside a plastic (Exhibit "C") and a black bullet pouch containing six (6) live ammunitions, while in the room occupied by Maricar Morgia, the operative recovered a green plastic pencil case containing nine (9) pieces of small transparent sachets with white crystalline substance suspected to be shabu (Exhibit "B-1") and five (5) pieces of .38 caliber live ammunitions. When lastly the living room was searched, the policemen found therein a red and black synthetic case. Inside the case were three (3) pieces of small transparent plastic sachets containing suspected shabu (Exhibit "B-2"), some sniffing paraphernalias such as improvised burner, tooter (Exhibit "B-6"), scissors (Exhibit "B-8"), eight (8) strips of aluminum foil (Exhibit "B-5), plastic sachets with residue (Exhibit "B-3"), and empty plastic sachets (Exhibit "B-4"). After the search, an inventory receipt (Exhibit "G") of the items seized from the house of the suspects was prepared and, together with an affidavit of orderly search (Exhibit "H"), was signed by Danilo Simbahon; that the three accused were then arrested and brought to the precinct for investigation. The ammunitions recovered were sent to the Firearms and Explosive Unit, Camp Crame, Quezon City, to determine their identities and on September 22, 1995 and August 6, 1996, certifications were issued by said office to the effect that accused Maricar Morgia and Danilo Simbahon were not licensed/registered firearm/ammunitions holders of any kind and caliber. The other evidence recovered were brought to the National Bureau of Investigation for laboratory examination and were found to be positive for shabu and marijuana as evidenced by Exhibit "E". For his part, Danilo Simbahon denied the allegations against him and gave his version of the incident as follows: That in the early morning of April 23, 1995, he was sleeping, together with his wife and children, in one of the rooms in their house located at No. 771 Roxas Street, Sampaloc, Manila, when some male persons who introduced themselves as police officers but were not in uniform forcibly pushed open the door of their house and just barged in; that all of them were herded by the police officers to the sala from their room but he and his wife, Charito, were not aware if something was indeed taken from the other rooms; that thereafter they were all brought, together with another female companion, to the headquarters and he (Simbahon) was investigated but despite his request, the investigation was not reduced into writing. Simbahon denied that a leather bag containing the evidence marked as Exhibits "B-1" to "B-11" and a belt bag with six (6) live ammunitions were found under their bed claiming that they have no bed in their room as they were sleeping only on the floor. He admitted, however, that they were shown a document or paper by the police officers but the same was never handed to him inspite of his request and that one of the policemen also showed them a taped package saying that it was recovered from the room of Maricar Morgia but the contents of the taped package were never shown to them despite demands. He likewise stated that the only reason he was charged by the police was he refused to accede to their demand of P20,000.00 in exchange for his release.2 Separate informations were filed against Danilo Simbahon, Charito Mangulabnan, and Maricar Morgia for violation of RA 6425, as amended, and PD 1866, as amended, before the Regional Trial Court of Manila, Branch 9, docketed as Criminal Cases Nos. 95-142512 to 95142515.

The three accused were arraigned on June 2, 1995 and respectively pleaded not guilty. Thereafter, upon motion of the prosecution, the charges against Charito Mangulabnan were dismissed on the ground that she had no participation in the crimes charged against her.3 The cases were then consolidated and jointly tried against Danilo Simbahon and Maricar Morgia. After trial, the court a quo rendered a decision, the dispositive portion of which states: WHEREFORE, for the failure of the prosecution to prove the guilt of the accused Maricar Morgia y Mangulabnan on evidence beyond reasonable doubt, both in Criminal Case No. 95-142512 and in Criminal Case No. 95-142513, she is hereby ACQUITTED of the charges against her in the above mentioned criminal cases. The warrant of arrest issued against her dated November 15, 1995 is hereby ordered recalled. Likewise, for failure also of the prosecution to prove the guilt of accused Danilo Simbahon y Quiatzon beyond reasonable doubt, said accused is hereby ACQUITTED of the charge against him in Criminal Case No. 95-142515. However, the Court is convinced that there is proof beyond reasonable doubt that accused Danilo Simbahon y Quiatzon committed the crime charged against him in Criminal Case No. 95-142514 thereby finding him guilty thereof and hereby sentences him to suffer the penalty of Reclusion Perpetua and to pay a fine of Five Hundred Thousand Pesos (P500,000.00) and to pay the cost. xxx xxx xxx

SO ORDERED.4 In view of the imposition of the penalty of reclusion perpetua, appellant interposed this direct appeal raising the following issues: I WHETHER OR NOT THE LOWER COURT ERRED IN RULING THAT THE PROSECUTION PROVED BEYOND REASONABLE DOUBT THAT APPELLANT COMMITTED A VIOLATION OF SECTION 8 OF REPUBLIC ACT NO. 6425 (1972). II WHETHER OR NOT THE LOWER COURT ERRED IN RULING THAT SEARCH WARRANT NO. 95-100 WAS VALID. III WHETHER OR NOT THE LOWER COURT COMMITTED GRAVE ABUSE OF DISCRETION IN FAILING TO SUSPEND THE APPELLANT'S ARRAIGNMENT AFTER GRANTING A REINVESTIGATION. IV WHETHER OR NOT THE PUBLIC ATTORNEY WAS GROSSLY NEGLIGENT IN FAILING TO CHALLENGE THE VALIDITY OF THE SEARCH CONDUCTED PRIOR TO THE ARRAIGNMENT OF THE APPELLANT. Appellant contends that the prosecution failed to prove that he was caught in flagrante delicto in possession of the brick of marijuana flowering tops. He cites the testimony of SPO2 Nelson Estuaria that he never admitted ownership or possession of the seized items, particularly the marijuana, and that the same could belong to any one of the occupants of the house that was searched.5

On the other hand, the Solicitor General argues that the positive testimony of SPO2 Nelson Estuaria that marijuana was found inside the room of accused-appellant prevails over his mere denial.6 In all prosecutions for violation of The Dangerous Drugs Act, the existence of the dangerous drug is condition sine qua non for conviction. The dangerous drug is the very corpus delicti of the crime.7 We find that the prosecution's evidence on the identification of the marijuana allegedly seized from appellant is demonstrably weak, unreliable and unconvincing. The prosecution failed to identify that the marijuana presented in court was the very same marijuana allegedly seized from appellant.8 Such failure to identify the corpus delicti of the crime charged against the appellant or to establish the chain of custody cannot but inure to the detriment of the prosecution's case.9 SPO2 Nelson Estuaria testified in this wise: FISCAL SULIDUM: Q What happened after you have searched the room of Danilo Simbahon?

Witness A I found several specimens, ma'am.

FISCAL SULIDUM: Q I am showing to you a brick of flowering tops dried leaves of marijuana, will you please tell this Honorable Court what is the relation of this brick of marijuana to the marijuana which you recovered from the room of Danilo Simbahon? Witness A This is the same brick of marijuana, ma'am.

FISCAL SULIDUM: Q How do you know that this marijuana was recovered from the room of Danilo Simbahon? Witness A It was marked by the investigator, ma'am.

COURT: Q How about you, did you put your own marking in order to identify that this was recovered from the room of Danilo Simbahon? Witness A None, Your Honor. I did not put my marking.

COURT: Q Where is the marking that were marked by the investigator?

Witness A I could not find the marking, Your Honor.10

The prosecution's failure to explain why the markings were no longer on the bricks of marijuana leaves is certainly damaging to its case. The prosecution must ensure that the item presented in court is the very same item seized from an accused in order to discourage tampering with the evidence. Its failure to do so, therefore, raised serious doubt as to appellant's guilt. Considering that in criminal cases, proof beyond reasonable doubt is necessary to establish the guilt of an accused, similarly, unwavering exactitude in the identification of the corpus delicti is necessary. Every fact necessary to constitute the crime must be established by proof beyond reasonable doubt. 11 More importantly, this case should be dismissed on the ground of manifest violations of the constitutional right of the accused against illegal search and seizure. While appellant may be deemed to have waived his right to question the legality of the search warrant and the admissibility of the evidence seized for failure to raise his objections at the opportune time,12 however, the record shows serious defects in the search warrant itself which render the same null and void.13 As a general rule, factual findings of the trial court are entitled to respect absent any indication that it overlooked certain facts or circumstances of weight and influence which, if considered, would alter the result of the case.14 In this case, we find that the trial court overlooked defects in Search Warrant No. 95-100, to wit: 15 TO ANY PEACE OFFICER: GREETINGS: It appearing to the satisfaction of the undersigned after examining under oath SPO1 Bayani Corpuz Agulan and his witness, that there are reasonable grounds to believe that a violation of Section 15 and 16, Article III of RA 6425, as amended, and violation of PD 1866 has been committed or is about to be committed and there are good and sufficient reasons to believe that DANILO SIMBAJON @ Danny Pilay, CHARITO MANGULABNAN @ Chato and MARICAR MORGIA @ Caycay has in his possession the following: (Emphasis provided) Undetermined amount of methamphetamine Hydrochloride or " Shabu", regulated drugs; Packaging/sniffing paraphernalia such as weighing scale, plastic sachet/bags, tooters, aluminum foils, burner, scissor and knife; .38 caliber revolver unlicensed firearm You are hereby commanded to make an immediate search anytime of the day or night of the premises including the ground floor, the second floor and in all floors and rooms therein above-mentioned and forthwith seize and take possession of the above-mentioned properties subject of the offense and bring to this Court said properties and persons to be dealt with as the law direct. You are further directed to submit return with in (10) days from today. GIVEN UNDER MY HAND AND SEAL OF THIS COURT, this 20th day of April, 1995 in Manila, Philippines. (sgd.) WILLIAM M. BAYHON Executive Judge The caption as well as the body of Search Warrant No. 95-100 show that it was issued for more than one offense for violation of RA 6425 and for violation of PD 1866. In Tambasen v. People, et al., it was held:

On its face, the search warrant violates Section 3, Rule 123 of the Revised Rules of Court, which prohibits the issuance of a search warrant for more than one specific offense. The caption of Search Warrant No. 365 reflects the violation of two special laws: P.D. No. 1866 for illegal possession of firearms, ammunitions and explosives; and R.A. No. 1700, the Anti-Subversive Law. Search Warrant No. 365 was therefore a "scatter-shot warrant" and totally null and void.16 Likewise, the warrant failed to describe the place to be searched with sufficient particularity. The rule is that a description of a place to be searched is sufficient if the officer with the warrant can, with reasonable effort, ascertain and identify the place intended. 17 The constitutional requirement is a description which particularly points to a definitely ascertainable place, so as to exclude all others. In the case at bar, only the application for search warrant18 contained the address of the place to be searched. The search warrant issued by the court merely referred to appellant's residence as "premises", without specifying its address. The Constitution and the Rules of Court limit the place to be searched only to those described in the warrant.19 The absence of a particular description in the search warrant renders the same void. Finally, the seized marijuana was not mentioned in the search warrant issued for the search of appellant's house. The seizure by the police officers conducting the search of articles not described in the search warrant was beyond the parameters of their authority under the search warrant. Article III, Section 2 of the 1987 Constitution requires that a search warrant should particularly describe the things to be seized. The evident purpose and intent of the requirement is to limit the things to be seized to those, and only those, particularly described in the search warrant, to leave the officers of the law with no discretion regarding what articles they should seize, to the end that unreasonable searches and seizures may not be made and that abuses may not be committed.20 Neither can the admissibility of such seized items be justified under the plain view doctrine, for the bricks of marijuana in this case were found not inadvertently or in plain view. Rather, they were found after a meticulous search under the bed, wrapped in a newspaper and inside a plastic bag. In People v. Musa,21 the marijuana recovered by NARCOM agents was declared inadmissible because the said drugs were contained in a plastic bag which bore no indication of its contents. WHEREFORE, in view of the foregoing, the decision of the trial court is REVERSED and SET ASIDE. Appellant Danilo Simbahon y Quiatzon is ACQUITTED of the crime charged against him. He is ordered immediately released unless he is being held for some other valid or lawful cause. Costs de oficio. SO ORDERED. Davide, Jr., C .J ., Vitug, Carpio and Azcuna, JJ ., concur.

Footnotes
1

Records, Folder No. 2 "Search Warrant No. 95-100", p. 1. Decision, per Judge Zeus C. Abrogar, Rollo, Annex "A", pp. 120124. Record, p. 108. Record, p. 229. Appellant's Brief, Rollo, pp. 83119. Brief for the Appellee, Rollo, pp. 139152.

People v. Mendiola, G.R. No. 110778, 4 August 1994, 235 SCRA 116, 120. Id. See People v. Dismuke, G.R. No. 108453, 11 July 1994, 234 SCRA 51. TSN, August 28, 1996, pp. 45.

10

People v. Mendiola, supra, citing People v. Garcia, G.R. No. 94187, 4 November 1992, 215 SCRA 349.
11

See Demaisip v. Court of Appeals, et al., G.R. No. 89393, 25 January 1991, 193 SCRA 373, 382.
12 13

Burgos, Sr. v. Chief of Staff, AFP, 218 Phil. 754 (1984). People v. Balano, G.R. No. 138474, 28 March 2001. Records, Folder No. 2 "Search Warrant No. 95-100", p. 1. 316 Phil. 237 (1995). People v. Veloso, 48 Phil. 169, 180 (1927). Records, Folder No. 2 "Search Warrant No. 95-100", pp. 23. Paper Industries Corporation of the Phils. v. Asuncion , 366 Phil. 717 (1999). Tambasen v. People, et al., supra. G.R. No. 96177, 27 January 1997, 217 SCRA 597.

14

15

16

17

18

19

20

21