Republic of the Philippines

SUPREME COURT
6th Judicial Region
REGIONAL TRIAL COURT
Branch 64
Bugasong, Antique
Station: San Jose, Antique

People of the Philippines, Crim. Case No. 19-03-1810

- versus-
BENHUR TALAM y DELA PENA For: Violation of Section 28(a)
Accused of RA 10591
x------------------------------------------------x

MOTION TO DISMISS
ACCUSED-MOVANT, herein represented by the PUBLIC ATTORNEY’S
OFFICE, through the undersigned counsel, moves for the dismissal of the
instant case on the ground that the inconsistencies in the Resolution of the
Prosecution and the Information filed to this Honorable Court violates the
Constitutional right of the accused to be informed of the nature and cause of the
accusation against him and of the right of the accused to speedy trial.
The following are the facts and circumstances surrounding this case:
1. The accused-movant stands charged with the crime of violation of
Section 28 (a) of RA 10591 or Comprehensive Firearms and
Ammunition Regulations Act), committed as follows:

That on or about February 15, 2019, in the Municipality of Barbaza,

Province of Antique, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused did, then and there,
willfully, unlawfully and feloniously have in his possession custody
and control One (1) unit homemade pistoled 12- gauge break type
shotgun; One (1) unit of homemade 5.56 pistol type; three (3)
pieces live ammunition of 12-gauge shot gun; two (2) live
ammunition of 5.5 mm during the search, without having
previously obtained the corresponding license and authority to
possess or carry the same, and not for the purpose of surrendering
said firearm and ammunitions to the proper authorities.

CONTRARY TO LAW.
2. Perusal, however, of the Resolution, the same states that:
“The evidence demonstrates that on February 15, 2019 at about 3;45
pm in Brgy. Ipil, Barbaza, Antique, the police officers served Search
Warrant No. 2019-02-01 issued by Hon. RTC Judge Mariuo G. Andres
 for Violation of RA 10591 against the Respondent. As a result of the
search, the Police found the following: 1) one (1) unit of homemade
pistoled 12-gauge break type shotgun; 2) One (1) unit of homemade
5. 56pistol type; 3)three (3) pieces live ammunition of 12 gauge
shotgun; and 4) two (2) live ammunition of 5.5 m.m. Acting on what
they actually saw as an indication of commission of an offense (illegal
possession of firearms ) and taking into account the /other
circumstances at that time, the police officers placed the Respondent
under arrest.

WHEREFORE, let the attached Information for Violation of Sec. 28

(b) in relation to Sec. 28 (e) (1) of Article V of RA 10591, be filed against
respondent Benhur Talam y Dela Pena.

xxx
3. Simply put, there exist inconsistencies in the Resolution which states
that the accused violates “Section 28 ( b) in relation to Section 28 (e)(1)
of Article V of RA 10591” and in the Information which alleges that the
accused violates “ Section 28 ( a) of RA 10591.”

4. Section 28 (b) in relation to Section 28 (e)(1) of Article V of RA 10591

provides:

Section 28. Unlawful Acquisition, or Possession of Firearms and

Ammunition. – The unlawful acquisition, possession of firearms and
ammunition shall be penalized as follows:

(a) xxx
(b) The penalty of reclusion temporal to reclusion perpetua shall be
imposed if three (3) or more small arms or Class-A light weapons are
unlawfully acquired or possessed by any person;
xxx

Section 28 (e ) (1):
The penalty of one (1) degree higher than that provided in paragraphs
(a) to (c) in this section shall be imposed upon any person who shall
unlawfully possess any firearm under any or combination of the
following conditions:
(1) Loaded with ammunition or inserted with a loaded magazine;

5. Whereas, Section 28 (a) of RA 10591 provides:

 (a) The penalty of prision mayor in its medium period shall be
imposed upon any person who shall unlawfully acquire or
possess a small arm;

6. Hence, there was a violation of the Constitutional right of the Accused

to be informed of the nature and cause of the accusations against him
as provided in Section 14 paragraph 2, Article III of the 1987
Constitution which states that:

Section 14. 1)No person shall be held to answer for a criminal

offense without due process of law.

2) In all criminal prosecutions, the accused shall be presumed

innocent until the contrary is proved, and shall enjoy the right to be
heard by himself and counsel, to be informed of the nature and cause of
the accusation against him, to have a speedy, impartial, and public trial,
to meet the witnesses face to face, and to have compulsory process to
secure the attendance of witnesses and the production of evidence in
his behalf. However, after arraignment, trial may proceed
notwithstanding the absence of the accused: Provided, that he has
been duly notified and his failure to appear is unjustifiable.

7. In this case, the Information does not clearly show what specific penal
provision of RA 10591 was actually charged against the accused;

8. If the Prosecution refers to the violation of Section 28 (b) in relation

to Section 28 (e) (1) of Article V of RA 10591, the accused cannot be
held liable because what were allegedly recovered by virtue of the
Search Warrant were a) One (1) unit homemade pistoled 12-gauge
break type shotgun and b) One (1) unit homemade 5.56 pistol; the
other items allegedly seized from the accused were not part nor
mentioned in Search Warrant No. 2019-02-01. Further, Section 28(b)
provides that three (3) or more small arms or Class-A light weapons
are unlawfully acquired or possessed by any person, herein, there
were only two small arms and not three or more, nor the ammunitions
be included in the Information considering that the same were not
covered by the Search Warrant No. 2019-02-01.

9. Whereas, if the Prosecution, refers to the violation of Section 28 (a) of

RA 10591, the accused cannot be held liable for such charge
considering based on the Resolution, it is recommended that an
Information for Violation of Section 28 (b) in relation to Section 28
(e)(1) of Article V, RA 10591 and not Section 28 (a) of such law;
 10. The Prosecution has been given enough time to rectify the
abovementioned inconsistencies, but despite, the opportunity to do
so, the Information was not amended up to date. This adds to the
violation of the Constitutional right of the accused not only to be
informed of the nature and cause of accusation against him but also of
his right to have a speedy trial of his case (under the Constitution and
pursuant to Speedy Trial Act) considering that the Arraignment of this
accused has been reset twice to give time to the Prosecution to rectify
its errors ( i.e April 15, 2019 and April 8, 2019);

11. The Accused has been detained since February 15, 2019 as such,
with the abovementioned violations of his rights to be informed of the
nature and cause of accusation against him and of his right to speedy
trial, the accused prays that this case be dismissed and that he be
immediately released from detention.

WHEREFORE, premises considered, it is most respectfully prayed of this

Honorable Court that the above-mentioned case filed against the accused be
DISMISSED for violation of his Constitutional right to be informed of the nature
and cause of the accusations against him and of his right to speedy trial.

Other reliefs just and equitable, under the foregoing premises, are
likewise prayed for.
San Jose, Antique. April 23, 2019.

PUBLIC ATTORNEY’S OFFICE

Department of Justice
San Jose, Antique District Office
Justice Calixto O. Zaldivar Hall of Justice
Binirayan Hills, San Jose, Antique
Counsel for the accused

by:

APPLE DAWN D. TAMBA

Public Attorney II
Roll No. 67281, May 24, 2017
Lifetime IBP No. 1063288(Antique)
MCLE Compliance No. VI-007001
Pasig City, Philippines, March 21,2018
 NOTICE OF HEARING

Officer in Charge/ Clerk of Court

RTC-Branch 64, San Jose, Antique

Office of the Provincial Prosecutor

San Jose, Antique

G r e e t i n g s!

Please submit the foregoing motion for the consideration and resolution
of the Honorable Court on May 2, 2019 at 2:00 in the afternoon without
further argument.

APPLE DAWN D. TAMBA

Copy furnished by personal service:

PROS. RICARDO HUELE/

ASST. PROS. EDGAR RAYMUND ESPINOSA
Office of the Provincial Prosecutor of Antique