PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MODESTO TEE a.k.a. ESTOY TEE, accused-appellant. D E C I S I O N QUISUMBING, J.

For automatic review is the consolidated judgment[1] of the Regional Trial Court (RTC) of Baguio City, Branch 6, dated September 17, 1999, in Criminal Cases Nos. 15800-R and 15822-R, involving violations of Section 8, Article II, of the Dangerous Drugs Law.[2] Since appellant was acquitted in the second case, we focus on the first case, where appellant has been found guilty and sentenced to death and fined one million pesos.

The decretal portion of the trial courts decision reads:

WHEREFORE, judgment is hereby rendered, as follows:

1. In Crim. Case No. 15800-R, the Court finds the accused Modesto Tee guilty beyond reasonable doubt of the offense of illegal possession of marijuana of about 591.81 kilos in violation of Section 8, Article II of RA 6425 as amended by Section 13 of RA 7659 as charged in the Information, seized by virtue of a search warrant and sentences him to the supreme penalty of death and to pay a fine of 1 million pesos without subsidiary imprisonment in case of insolvency.

The 591.81 kilos of marijuana contained in 26 boxes and one yellow sack (Exhibits U1 to U-27) are ordered forfeited in favor of the State to be destroyed immediately in accordance with law.

2. In Crim. Case No. 15822-R, the Court finds that the prosecution failed to prove the guilt of accused Modesto Tee beyond reasonable doubt and hereby acquits him of the charge of illegal possession of marijuana in violation of Section 8, Art. 2 of RA 6425 as amended by Section 13 of RA 7659 as charged in the Information since the marijuana confiscated have to be excluded in evidence as a product of unreasonable search and seizure.

The 336.93 kilos of marijuana contained in 13 sacks and four boxes (Exh. B to S and their component parts) although excluded in evidence as the product(s) of unreasonable search and seizure, are nevertheless ordered forfeited in favor of the

State to be destroyed immediately in accordance with law considering that they are prohibited articles.

The City Jail Warden is, therefore, directed to release the accused Modesto Tee in connection with Crim. Case No. 15822-R unless held on other charges.

COST(S) DE OFFICIO.

SO ORDERED.[3]

Appellant is a Chinese national in his forties, a businessman, and a resident of Baguio City. A raid conducted by operatives of the National Bureau of Investigation (NBI) and Philippine National Police Narcotics Command (PNP NARCOM) at premises allegedly leased by appellant and at his residence yielded huge quantities of marijuana.

On July 20, 1998, appellant moved to quash the search warrant on the ground that it was too general and that the NBI had not complied with the requirements for the issuance of a valid search warrant. The pendency of said motion, however, did not stop the filing of the appropriate charges against appellant. In an information dated July 24, 1998, docketed as Criminal Case No. 15800-R, the City Prosecutor of Baguio City charged Modesto Tee, alias Estoy Tee, with illegal possession of marijuana, allegedly committed as follows:

That on or about the 1st day of July, 1998 in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully, feloniously and knowingly have in his possession the following, to wit:

1. Ninety-two (92) bricks of dried flowering tops separately contained in four (4) boxes; and

2. One hundred fifty-eight (158) bricks, twenty-one (21) blocks, and twenty-three (23) bags of dried flowering tops separately contained in thirteen (13) sacks, with a total weight of 336.93 kilograms; and

3 Six hundred two (602) bricks of dried flowering tops separately contained in twenty-six (boxes) and a yellow sack, weighing 591.81 kilograms,

all having a grand total weight of 928.74 kilograms, a prohibited drug, without the authority of law to possess, in violation of the above-cited provision of law.

CONTRARY TO LAW.[4]

On August 7, 1998, the prosecution moved to amend the foregoing charge sheet considering that subject marijuana were seized in two (2) different places.[5]

As a result, the information in Criminal Case No. 15800-R was amended to read as follows:

That on or about the 1st day of July, 1998, in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully, feloniously and knowingly have in his possession the following, to wit:

- Six hundred two (602) bricks of dried flowering tops separately contained in twentysix (26) boxes and a yellow sack, weighing 591.81 kilograms

a prohibited drug, without the authority of law to possess, in violation of the abovecited provision of law.

CONTRARY TO LAW.[6]

A separate amended information docketed as Criminal Case No. 15822-R was likewise filed, the accusatory portion of which reads:

That on or about the 1st day of July, 1998 in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully, feloniously and knowingly have in his possession the following, to wit:

1. Ninety-two (92) bricks of dried flowering tops separately contained in four (4) boxes; and

2. hundred fifty-eight (158) bricks, twenty-one (21) blocks, and twenty-three (23) bags of dried flowering tops separately contained in thirteen (13) sacks, with a total weight of 336.93 kilograms;

a prohibited drug, without the authority of law to possess, in violation of the abovecited provision of law.

CONTRARY TO LAW.[7]

On September 4, 1998, the trial court denied the motion to quash the search warrant and ordered appellants arraignment.

When arraigned in Criminal Cases Nos. 15800-R and 15822-R, appellant refused to enter a plea. The trial court entered a plea of not guilty for him.[8] Trial on the merits then ensued.

The facts of this case, as gleaned from the records, are as follows:

Prosecution witness Danilo Abratique, a Baguio-based taxi driver, and the appellant Modesto Tee are well acquainted with each other, since Abratiques wife is the sister of Tees sister-in-law.[9]

Sometime in late June 1998, appellant asked Abratique to find him a place for the storage of smuggled cigarettes.[10] Abratique brought appellant to his friend, Albert Ballesteros, who had a house for rent in Bakakeng, Baguio City. After negotiating the terms and conditions, Ballesteros agreed to rent out his place to appellant. Appellant then brought several boxes of purported blue seal cigarettes to the leased premises.

Shortly thereafter, however, Ballesteros learned that the boxes stored in his place were not blue seal cigarettes but marijuana. Fearful of being involved, Ballesteros

informed Abratique. Both later prevailed upon appellant to remove them from the premises.[11]

Appellant then hired Abratiques taxi and transported the boxes of cannabis from the Ballesteros place to appellants residence at Km. 6, Dontogan, Green Valley, Sto. Tomas, Baguio City.[12]

On June 30, 1998, appellant hired Abratique to drive him to La Trinidad, Benguet on the pretext of buying and transporting strawberries. Upon reaching La Trinidad, however, appellant directed Abratique to proceed to Sablan, Benguet, where appellant proceeded to load several sacks of marijuana in Abratiques taxi. He then asked Abratique to find him a place where he could store the contraband.[13]

Abratique brought appellant to his grandmothers house at No. 27 Dr. Cario St., QM Subdivision, Baguio City, which was being managed by Abratiques aunt, Nazarea Abreau. Nazarea agreed to rent a room to appellant. Abratique and appellant unloaded and stored there the sacks of marijuana brought from Sablan.[14] Abratique was aware that they were transporting marijuana as some of the articles in the sacks became exposed in the process of loading.[15]

Eventually, Abratique and Nazarea were bothered by the nature of the goods stored in the rented room. She confided to her daughter, Alice Abreau Fianza, about their predicament. As Alice Fianzas brother-in-law, Edwin Fianza, was an NBI agent, Alice and Abratique phoned him and disclosed what had transpired.[16]

On the morning of July 1, 1998, alerted by information that appellant would retrieve the sacks of prohibited drugs that day, Edwin Fianza and other NBI operatives conducted a stake out at No. 27, Dr. Cario St. While the NBI agents were conducting their surveillance, they noticed that several PNP NARCOM personnel were also watching the place.[17] The NBI then learned that the PNP NARCOM had received a tip from one of their informers regarding the presence of a huge amount of drugs in that place. The NBI and PNP NARCOM agreed to have a joint operation.

As the day wore on and appellant did not show up, the NBI agents became apprehensive that the whole operation could be jeopardized. They sought the permission of Nazarea Abreau to enter the room rented by appellant. She acceded and allowed them entry. The NBI team then searched the rented premises and found four (4) boxes and thirteen (13) sacks of marijuana, totaling 336.93 kilograms.[18]

Later that evening, NBI Special Agent Darwin Lising, with Abratique as his witness, applied for a search warrant from RTC Judge Antonio Reyes at his residence.[19] Judge Reyes ordered the NBI agents to fetch the Branch Clerk of Court, Atty. Delilah Muoz, so the proceedings could be properly recorded. After Atty. Muoz arrived, Judge Reyes questioned Lising and Abratique. Thereafter, the judge issued a warrant directing the NBI to search appellants residence at Km. 6, Dontogan, Green Valley, Baguio City for marijuana.[20]

The NBI operatives, with some PNP NARCOM personnel in tow, proceeded to appellants residence where they served the warrant upon appellant himself.[21] The search was witnessed by appellant, members of his family, barangay officials, and members of the media.[22] Photographs were taken during the actual search.[23] The law enforcers found 26 boxes and a sack of dried marijuana[24] in the water tank, garage, and storeroom of appellants residence.[25] The total weight of the haul was 591.81 kilograms.[26] Appellant was arrested for illegal possession of marijuana.

The seized items were then submitted to the NBI laboratory for testing. NBI Forensic Chemist Maria Carina Madrigal conducted the tests. Detailed microscopic and chromatographic examinations of the items taken from appellants rented room at No. 27, Dr. Cario St., as well as those from his residence at Green Valley, showed these to be marijuana.[27]

In his defense, appellant contended that the physical evidence of the prosecution was illegally obtained, being the products of an unlawful search, hence inadmissible. Appellant insisted that the search warrant was too general and the process by which said warrant was acquired did not satisfy the constitutional requirements for the issuance of a valid search warrant. Moreover, Abratiques testimony, which was heavily relied upon by the judge who issued the warrant, was hearsay.

In Criminal Case No. 15822-R, the trial court agreed with appellant that the taking of the 336.93 kilograms of marijuana was the result of an illegal search and hence, inadmissible in evidence against appellant. Appellant was accordingly acquitted of the charge. However, the trial court found that the prosecutions evidence was more than ample to prove appellants guilt in Criminal Case No. 15800-R and as earlier stated, duly convicted him of illegal possession of marijuana and sentenced him to death.

Hence, this automatic review.

Before us, appellant submits that the trial court erred in:

1UPHOLDING THE LEGALITY OF THE SEARCH WARRANT DESPITE LACK OF COMPLIANCE OF (sic) SEVERAL REQUIREMENTS BEFORE IT SHOULD HAVE BEEN ISSUED AND IT BEING A GENERAL WARRANT;

2.GRAVELY ABUSED ITS DISCRETION IN REOPENING THE CASE AND ALLOWING ABRITIQUE TO TESTIFY AGAINST APPELLANT;

3GIVING CREDENCE TO THE TESTIMONY OF ABRITIQUE;

4. NOT ACQUITTING THE ACCUSED IN BOTH CASES AND SENTENCING HIM TO DEATH DESPITE THE ILLEGALLY OBTAINED EVIDENCE AS FOUND IN THE FIRST CASE.[28]

We find that the pertinent issues for resolution concern the following: (1) the validity of the search conducted at the appellants residence; (2) the alleged prejudice caused by the reopening of the case and absences of the prosecution witness, on appellants right to speedy trial; (3) the sufficiency of the prosecutions evidence to sustain a finding of guilt with moral certainty; and (4) the propriety of the penalty imposed.

1. On the Validity of the Search Warrant; Its Obtention and Execution

Appellant initially contends that the warrant, which directed the peace officers to search for and seize an undetermined amount of marijuana, was too general and hence, void for vagueness. He insists that Abratique could already estimate the amount of marijuana supposed to be found at appellants residence since Abratique helped to transport the same.

For the appellee, the Office of the Solicitor General (OSG) counters that a search warrant is issued if a judge finds probable cause that the place to be searched contains prohibited drugs, and not that he believes the place contains a specific amount of it. The OSG points out that, as the trial court observed, it is impossible beforehand to determine the exact amount of prohibited drugs that a person has on himself.

Appellant avers that the phrase an undetermined amount of marijuana as used in the search warrant fails to satisfy the requirement of Article III, Section 2[29] of the

Constitution that the things to be seized must be particularly described. Appellants contention, in our view, has no leg to stand on. The constitutional requirement of reasonable particularity of description of the things to be seized is primarily meant to enable the law enforcers serving the warrant to: (1) readily identify the properties to be seized and thus prevent them from seizing the wrong items;[30] and (2) leave said peace officers with no discretion regarding the articles to be seized and thus prevent unreasonable searches and seizures.[31] What the Constitution seeks to avoid are search warrants of broad or general characterization or sweeping descriptions, which will authorize police officers to undertake a fishing expedition to seize and confiscate any and all kinds of evidence or articles relating to an offense. [32] However, it is not required that technical precision of description be required, [33] particularly, where by the nature of the goods to be seized, their description must be rather general, since the requirement of a technical description would mean that no warrant could issue.[34]

Thus, it has been held that term narcotics paraphernalia is not so wanting in particularity as to create a general warrant.[35] Nor is the description any and all narcotics and all implements, paraphernalia, articles, papers and records pertaining to the use, possession, or sale of narcotics or dangerous drugs so broad as to be unconstitutional.[36] A search warrant commanding peace officers to seize a quantity of loose heroin has been held sufficiently particular.[37]

Tested against the foregoing precedents, the description an undetermined amount of marijuana must be held to satisfy the requirement for particularity in a search warrant. Noteworthy, what is to be seized in the instant case is property of a specified character, i.e., marijuana, an illicit drug. By reason of its character and the circumstances under which it would be found, said article is illegal. A further description would be unnecessary and ordinarily impossible, except as to such character, the place, and the circumstances.[38] Thus, this Court has held that the description illegally in possession of undetermined quantity/amount of dried marijuana leaves and Methamphetamine Hydrochloride (Shabu) and sets of paraphernalia particularizes the things to be seized.[39]

The search warrant in the present case, given its nearly similar wording, undetermined amount of marijuana or Indian hemp, in our view, has satisfied the Constitutions requirements on particularity of description. The description therein is: (1) as specific as the circumstances will ordinarily allow; (2) expresses a conclusion of fact not of law by which the peace officers may be guided in making the search and seizure; and (3) limits the things to be seized to those which bear direct relation to the offense for which the warrant is being issued.[40] Said warrant imposes a meaningful restriction upon the objects to be seized by the officers serving the warrant. Thus, it prevents exploratory searches, which might be violative of the Bill of Rights.

Appellant next assails the warrant for merely stating that he should be searched, as he could be guilty of violation of Republic Act No. 6425. Appellant claims that this is a sweeping statement as said statute lists a number of offenses with respect to illegal drugs. Hence, he contends, said warrant is a general warrant and is thus unconstitutional.

For the appellee, the OSG points out that the warrant clearly states that appellant has in his possession and control marijuana or Indian hemp, in violation of Section 8 of Republic Act No. 6425.

We have carefully scrutinized Search Warrant No. 415 (7-98),[41] and we find that it is captioned For Violation of R.A. 6425, as amended.[42] It is clearly stated in the body of the warrant that there is probable cause to believe that a case for violation of R.A. 6425, as amended, otherwise known as the Dangerous Drugs Act of 1972, as further amended by R.A. 7659 has been and is being committed by one MODESTO TEE a.k.a. ESTOY TEE of Km. 6, Dontogan Bgy., Green Valley, Sto. Tomas, Baguio City by having in his possession and control an UNDETERMINED AMOUNT OF MARIJUANA or INDIAN HEMP in violation of the aforementioned law.[43] In an earlier case, we held that though the specific section of the Dangerous Drugs Law is not pinpointed, there is no question at all of the specific offense alleged to have been committed as a basis for the finding of probable cause.[44] Appellants averment is, therefore, baseless. Search Warrant No. 415 (7-98) appears clearly issued for one offense, namely, illegal possession of marijuana.

Appellant next faults the Judge who issued Search Warrant No. 415 (7-98) for his failure to exhaustively examine the applicant and his witness. Appellant points out that said magistrate should not have swallowed all of Abratiques statements hook, line, and sinker. He points out that since Abratique consented to assist in the transport of the marijuana, the examining judge should have elicited from Abratique his participation in the crime and his motive for squealing on appellant. Appellant further points out that the evidence of the NBI operative who applied for the warrant is merely hearsay and should not have been given credit at all by Judge Reyes.

Again, the lack of factual basis for appellants contention is apparent. The OSG points out that Abratique personally assisted appellant in loading and transporting the marijuana to the latters house and to appellants rented room at No. 27 Dr. Cario St., Baguio City. Definitely, this indicates personal knowledge on Abratiques part. Law enforcers cannot themselves be eyewitnesses to every crime; they are allowed to present witnesses before an examining judge. In this case, witness Abratique personally saw and handled the marijuana. Hence, the NBI did not rely on hearsay information in applying for a search warrant but on personal knowledge of the witness, Abratique.

Before a valid search warrant is issued, both the Constitution[45] and the 2000 Revised Rules of Criminal Procedure[46] require that the judge must personally examine the complainant and his witnesses under oath or affirmation. The personal examination must not be merely routinary or pro forma, but must be probing and exhaustive.[47] In the instant case, it is not disputed that Judge Antonio Reyes personally examined NBI Special Investigator III Darwin A. Lising, the applicant for the search warrant as well as his witness, Danilo G. Abratique. Notes of the proceedings were taken by Atty. Delilah Muoz, Clerk of Court, RTC of Baguio City, Branch 61, whom Judge Reyes had ordered to be summoned. In the letter of transmittal of the Clerk of Court of the RTC of Baguio City, Branch 61 to Branch 6 of said court, mention is made of notes at pages 7-11.[48] We have thoroughly perused the records of Search Warrant No. 415 (7-98) and nowhere find said notes. The depositions of Lising and Abratique were not attached to Search Warrant No. 415 (7-98) as required by the Rules of Court. We must stress, however, that the purpose of the Rules in requiring depositions to be taken is to satisfy the examining magistrate as to the existence of probable cause.[49] The Bill of Rights does not make it an imperative necessity that depositions be attached to the records of an application for a search warrant. Hence, said omission is not necessarily fatal, for as long as there is evidence on the record showing what testimony was presented.[50] In the testimony of witness Abratique, Judge Reyes required Abratique to confirm the contents of his affidavit;[51] there were instances when Judge Reyes questioned him extensively.[52] It is presumed that a judicial function has been regularly performed, [53] absent a showing to the contrary. A magistrates determination of probable cause for the issuance of a search warrant is paid great deference by a reviewing court,[54] as long as there was substantial basis for that determination.[55] Substantial basis means that the questions of the examining judge brought out such facts and circumstances as would lead a reasonably discreet and prudent man to believe that an offense has been committed, and the objects in connection with the offense sought to be seized are in the place sought to be searched.

On record, appellant never raised the want of adequate depositions to support Warrant No. 415 (7-98) in his motion to quash before the trial court. Instead, his motion contained vague generalities that Judge Reyes failed to ask searching questions of the applicant and his witness. Belatedly, however, he now claims that Judge Reyes perfunctorily examined said witness.[56] But it is settled that when a motion to quash a warrant is filed, all grounds and objections then available, existent or known, should be raised in the original or subsequent proceedings for the quashal of the warrant, otherwise they are deemed waived.[57]

In this case, NBI Special Investigator Lisings knowledge of the illicit drugs stored in appellants house was indeed hearsay. But he had a witness, Danilo Abratique, who had personal knowledge about said drugs and their particular location. Abratiques statements to the NBI and to Judge Reyes contained credible and reliable details. As the NBIs witness, Abratique was a person on whose statements Judge Reyes could rely. His detailed description of appellants activities with respect to the seized drugs was substantial. In relying on witness Abratique, Judge Reyes was not depending on casual rumor circulating in the underworld, but on personal knowledge

Abratique possessed.

In Alvarez vs. Court of First Instance of Tayabas, 64 Phil. 33, 44 (1937), we held that:

The true test of sufficiency of a deposition or affidavit to warrant issuance of a search warrant is whether it has been drawn in such a manner that perjury could be charged thereon and affiant be held liable for damages caused.[58]

Appellant argues that the address indicated in the search warrant did not clearly indicate the place to be searched. The OSG points out that the address stated in the warrant is as specific as can be. The NBI even submitted a detailed sketch of the premises prepared by Abratique, thus ensuring that there would be no mistake.

A description of the place to be searched is sufficient if the officer serving the warrant can, with reasonable effort, ascertain and identify the place intended[59] and distinguish it from other places in the community.[60] A designation or description that points out the place to be searched to the exclusion of all others, and on inquiry unerringly leads the peace officers to it, satisfies the constitutional requirement of definiteness.

Appellant finally harps on the use of unnecessary force during the execution of the search warrant. Appellant fails, however, to point to any evidentiary matter in the record to support his contention. Defense witness Cipriana Tee, appellants mother, testified on the search conducted but she said nothing that indicated the use of force on the part of the NBI operatives who conducted the search and seizure.[61] What the record discloses is that the warrant was served on appellant,[62] who was given time to read it,[63] and the search was witnessed by the barangay officials, police operatives, members of the media, and appellants kith and kin.[64] No breakage or other damage to the place searched is shown. No injuries sustained by appellant, or any witness, appears on record. The execution of the warrant, in our view, has been orderly and peaceably performed.

2. On The Alleged Violation of Appellants Substantive Rights

Appellant insists that the prosecutions unjustified and willful delay in presenting witness Abratique unduly delayed the resolution of his case. He points out that a total of eight (8) scheduled hearings had to be reset due to the failure or willful refusal of Abratique to testify against him. Appellant insists that said lapse on the prosecutions part violated Supreme Court Circular No. 38-98.[65] Appellant now

alleges that the prosecution deliberately resorted to delaying the case to cause him untold miseries.

For the appellee, the OSG points out that the two-month delay in the trial is not such a great length of time as to amount to a violation of appellants right to a speedy trial. A trial is always subject to reasonable delays or postponements, but absent any showing that these delays are capricious and oppressive, the State should not be deprived of a reasonable opportunity to prosecute the criminal action.

On record, the trial court found that prosecution witness Danilo G. Abratique failed to appear in no less than eighteen (18) hearings, namely those set for February 1, 2, 3, 4, 8, 9, 10, and 24; March 9, 15, 22, and 23; April 6, 7, 8, 16, and 19, all in 1999. [66] No less than four (4) warrants of arrest were issued against him to compel him to testify.[67] The NBI agent who supposedly had him in custody was found guilty of contempt of court for failing to produce Abratique at said hearings and sanctioned. [68] The prosecution had to write the NBI Regional Director in Baguio City and NBI Director in Manila regarding the failure of the Bureaus agents to bring Abratique to court.[69] Nothing on record discloses the reason for Abratiques aforecited absences. On the scheduled hearing of June 7, 1999, he was again absent thus causing the trial court to again order his arrest for the fifth time.[70] He also failed to show up at the hearing of June 8, 1999.[71]

Appellant now stresses that the failure of Abratique to appear and testify on twenty (20) hearing dates violated appellants constitutional[72] and statutory right to a speedy trial.

A speedy trial means a trial conducted according to the law of criminal procedure and the rules and regulations, free from vexatious, capricious, and oppressive delays.[73] In Conde v. Rivera and Unson, 45 Phil. 650, 652 (1924), the Court held that where a prosecuting officer, without good cause, secures postponements of the trial of a defendant against his protest beyond a reasonable period of time, as in this instance, for more than a year, the accused is entitled to relief by a proceeding in mandamus to compel a dismissal of the information, or if he be restrained of his liberty, by habeas corpus to obtain his freedom.

The concept of speedy trial is necessarily relative. A determination as to whether the right has been violated involves the weighing of several factors such as the length of the delay, the reason for the delay, the conduct of the prosecution and the accused, and the efforts exerted by the defendant to assert his right, as well as the prejudice and damage caused to the accused.[74]

The Speedy Trial Act of 1998, provides that the trial period for criminal cases in general shall be one hundred eighty (180) days.[75] However, in determining the right of an accused to speedy trial, courts should do more than a mathematical computation of the number of postponements of the scheduled hearings of the case. [76] The right to a speedy trial is deemed violated only when: (1) the proceedings are attended by vexatious, capricious, and oppressive delays;[77] or (2) when unjustified postponements are asked for and secured;[78] or (3) when without cause or justifiable motive a long period of time is allowed to elapse without the party having his case tried.[79]

In the present case, although the absences of prosecution witness Abratique totaled twenty (20) hearing days, there is no showing whatsoever that prosecution capriciously caused Abratiques absences so as to vex or oppress appellant and deny him his rights. On record, after Abratique repeatedly failed to show up for the taking of his testimony, the prosecution went to the extent of praying that the trial court order the arrest of Abratique to compel his attendance at trial. The prosecution likewise tried to get the NBI to produce Abratique as the latter was in the Bureaus custody, but to no avail. Eventually, the trial court ordered the prosecution to waive its right to present Abratique and rest its case on the evidence already offered.[80]

Nor do we find a delay of twenty (20) hearing days to be an unreasonable length of time. Delay of less than two months has been found, in fact, to be not an unreasonably lengthy period of time.[81]

Moreover, nothing on record shows that appellant Modesto Tee objected to the inability of the prosecution to produce its witness. Under the Rules, appellant could have moved the trial court to require that witness Abratique post bail to ensure that the latter would testify when required.[82] Appellant could have moved to have Abratique found in contempt and duly sanctioned. Appellant did neither. It is a bit too late in the day for appellant to invoke now his right to speedy trial.

No persuasive reason supports appellants claim that his constitutional right to speedy trial was violated. One must take into account that a trial is always subject to postponements and other causes of delay. But in the absence of a showing that delays were unreasonable and capricious, the State should not be deprived of a reasonable opportunity of prosecuting an accused.[83]

Appellant next contends that the trial court gravely abused its discretion, and exhibited partiality, when it allowed the reopening of the case after the prosecution had failed to present Abratique on several occasions and had been directed to rest its case. Appellant stresses that the lower courts order to reopen the case to receive Abratiques further testimony is an indication that the trial court favored the

prosecution and unduly prejudiced appellant.

On appellees behalf, the Solicitor General points out that the trial courts order was in the interest of substantial justice and hence, cannot be termed as an abuse of discretion. The OSG points out that the prosecution had not formally rested its case and had yet to present its formal offer of evidence, hence, the submission of additional testimony by the same witness cannot be prejudicial to the accused, it being but the mere continuation of an uncompleted testimony. Furthermore, appellant did not properly oppose the prosecutions motion to reopen the case.

At the time Criminal Cases Nos. 15800-R and 15822-R were being tried, the 1985 Rules of Criminal Procedure were in effect. There was no specific provision at that time governing motions to reopen.[84] Nonetheless, long and established usage has led to the recognition and acceptance of a motion to reopen. In view of the absence of a specific procedural rule, the only controlling guideline governing a motion to reopen was the paramount interests of justice. As a rule, the matter of reopening of a case for reception of further evidence after either prosecution or defense has rested its case is within the discretion of the trial court.[85] However, a concession to a reopening must not prejudice the accused or deny him the opportunity to introduce counter evidence.[86]

Strictly speaking, however, there was no reopening of the cases in the proceedings below. A motion to reopen may properly be presented only after either or both parties have formally offered and closed their evidence, but before judgment.[87] In the instant case, the records show that on April 19, 1999, the prosecution was directed to close its evidence and given 15 days to make its formal offer of evidence.[88] This order apparently arose from the manifestation of the prosecution on April 16, 1999 that should they fail to produce witness Abratique on the next scheduled hearing the prosecution would rest its case.[89] On April 19, 1999, which was the next scheduled hearing after April 16, 1999, Abratique was absent notwithstanding notices, orders, and warrants of arrest. However, on April 27, 1999, or before the prosecution had formally offered its evidence, Abratique was brought to the trial court by the NBI. In its order of said date, the trial court pointed out that the prosecution could move to reopen the case for the taking of Abratiques testimony.[90] On May 7, 1999, the prosecution so moved, stressing that it had not yet formally offered its evidence and that the substantial rights of the accused would not be prejudiced inasmuch as the latter had yet to present his evidence. Appellant filed no opposition to the motion. The trial court granted the motion six days later. Plainly, there was nothing to reopen, as the prosecution had not formally rested its case. Moreover, the taking of Abratiques testimony was not for the purpose of presenting additional evidence, but more properly for the completion of his unfinished testimony. In U.S. vs. Base,[91] we held that a trial court is not in error, if it opts to reopen the proceedings of a case, even after both sides had rested and the case submitted for decision, by the calling of additional witnesses or recalling of witnesses so as to satisfy the judges mind with reference to particular facts involved in the case. A judge cannot be faulted

should he require a material witness to complete his testimony, which is what happened in this case. It is but proper that the judges mind be satisfied on any and all questions presented during the trial, in order to serve the cause of justice.

Appellants claim that the trial courts concession to reopen the case unduly prejudiced him is not well taken. We note that appellant had every opportunity to present his evidence to support his case or to refute the prosecutions evidence point-by-point, after the prosecution had rested its case. In short, appellant was never deprived of his day in court. A day in court is the touchstone of the right to due process in criminal justice.[92] Thus, we are unable to hold that a grave abuse of discretion was committed by the trial court when it ordered the so-called reopening in order to complete the testimony of a prosecution witness.

3. On the Sufficiency of the Prosecutions Evidence

In bidding for acquittal, appellant assails the credibility of Abratique as a witness. Appellant insists that Abratiques testimony is profuse with lies, contrary to human nature, hence incredible. According to appellant, Abratique was evasive from the outset with respect to certain questions of the trial court. He adds that it appeared the court entertained in particular the suspicion that witness Abratique had conspired with appellant in committing the crime charged. Appellant questions Abratiques motive in informing the NBI about his activities related to the marijuana taking, transfer, and warehousing.

The OSG contends that Abratiques testimony, taken as a whole, is credible. It points out that Abratique testified in a straightforward manner as to his knowledge of the huge cache of prohibited drugs stashed by appellant in two different places. His testimony, said the OSG, when fused with the physical evidence consisting of 591.81 kilograms of marijuana found by law enforcers at appellants residence, inexorably leads to the inculpation of appellant.

It is the bounden duty of the courts to test the prosecution evidence rigorously, so that no innocent person is made to suffer the unusually severe penalties meted out for drug offenses.[93] Though we scrutinized minutely the testimony of Abratique, we find no cogent reason to disbelieve him. From his account, Abratique might appear aware treading the thin line between innocence and feeling guilty, with certain portions of his story tending to be self-exculpatory. However, his whole testimony could not be discredited. The established rule is that testimony of a witness may be believed in part and disbelieved in other parts, depending on the corroborative evidence and the probabilities and improbabilities of the case. But it is accepted, as a matter of common sense, that if certain parts of a witness testimony are found true, his testimony cannot be disregarded entirely.[94]

Abratique testified in open court that appellant rented the taxicab he was driving, and he helped appellant transport huge amounts of marijuana to appellants rented room at No. 27 Dr. Cario St., Baguio City and to appellants residence at Km. 6, Dontogan, Green Valley, Sto. Tomas, Baguio City. He also declared on the witness stand that out of fear of being involved, he decided to divulge his knowledge of appellants possession of large caches of marijuana to the NBI. When the places referred to by Abratique were searched by the authorities, marijuana in staggering quantities was found and seized by the law enforcers. Stated plainly, the physical evidence in this case corroborated Abratiques testimony on material points.

Appellant imputes questionable motives to Abratique in an effort to discredit him. He demands that Abratique should likewise be prosecuted. However, by no means is the possible guilt of Abratique a tenable defense for appellant. Nor would Abratiques prosecution mean appellants absolution.

In a prosecution for illegal possession of dangerous drugs, the following facts must be proven with moral certainty: (1) that the accused is in possession of the object identified as prohibited or regulated drug; (2) that such possession is not authorized by law; and (3) that the accused freely and consciously possessed the said drug.[95]

We find the foregoing elements proven in Criminal Case No. 15800-R beyond reasonable doubt.

In said case, the testimony of Abratique and the recovery of 591.81 kilograms of marijuana from appellants residence served to prove appellants possession of a prohibited drug. Tests conducted by the NBI forensic chemist proved the seized articles to be marijuana. These articles were seized pursuant to a valid search warrant and hence, fully admissible in evidence.

In People v. de los Reyes, 239 SCRA 439 (1994), we held that the Dangerous Drugs Act applies generally to all persons and proscribes the sale of dangerous drugs by any person, and no person is authorized to sell such drugs. Said doctrine is equally applicable with respect to possession of prohibited drugs. Republic Act No. 6425, which penalizes the possession of prohibited drugs, applies equally to all persons in this jurisdiction and no person is authorized to possess said articles, without authority of law.

Anent the third element, we have held that to warrant conviction, possession of illegal drugs must be with knowledge of the accused or that animus possidendi

existed together with the possession or control of said articles.[96] Nonetheless, this dictum must be read in consonance with our ruling that possession of a prohibited drug per se constitutes prima facie evidence of knowledge or animus possidendi sufficient to convict an accused absent a satisfactory explanation of such possession.[97] In effect, the onus probandi is shifted to accused to explain the absence of knowledge or animus possidendi[98] in this situation.

Appellant Modesto Tee opted not to testify in his defense. Instead, he presented his mother as his lone witness, who testified on matters totally irrelevant to his case. We can only conclude that, failing to discharge the burden of the evidence on the possession of prohibited drug, appellants guilt in Criminal Case No. 15800-R was established beyond reasonable doubt.

3. On The Proper Penalty

Under Republic Act No. 6425 as amended by Republic Act No. 7659, the penalty of reclusion perpetua to death and a fine ranging from five hundred thousand pesos (P500,000.00) to ten million pesos (P10,000,000.00)[99] shall be imposed if the quantity of marijuana involved in a conviction for possession of marijuana or Indian hemp shall be 750 grams or more.[100]

In the present case, the quantity of marijuana involved has been shown by the prosecution to be far in excess of 750 grams, as stressed by the trial court:

The volume is rather staggering. It is almost one whole house or one whole room. In fact, when they were first brought to the court, it took hours to load them on the truck and hours also to unload them prompting the court to direct that the boxes and sack of marijuana be instead kept at the NBI office in Baguio. And the identification of said marijuana during the trial was made in the NBI premises itself by the witnesses since it was physically cumbersome and inconvenient to keep bringing them to the court during every trial.[101]

In sentencing appellant to death, the trial court noted not only the huge quantity of marijuana bales involved, but also the acts of accused of hiding them in different placesand transferring them from place to place and making them appear as boxes of cigarettes to avoid and evade apprehension and detection. They showed his being a big supplier, said the trial court, [whose] criminal perversity and craft that deserve the supreme penalty of death.[102]

We are unable to agree, however, with the penalty imposed by the trial court. The legislature never intended that where the quantity involved exceeds those stated in Section 20 of Republic Act No. 6425 the maximum penalty of death shall automatically be imposed.[103] The statute prescribes two indivisible penalties: reclusion perpetua and death. Hence, the penalty to be imposed must conform with Article 63[104] of the Revised Penal Code. As already held, the death penalty law, Republic Act No. 7659 did not amend Article 63 of the Revised Penal Code.[105] The rules in Article 63 apply although the prohibited drugs involved are in excess of the quantities provided for in Section 20 of Republic Act No. 6425.[106] Thus, finding neither mitigating nor aggravating circumstances in the present case, appellants possession of 591.81 kilograms of marijuana in Criminal Case No. 15800-R, does not merit capital punishment but only the lesser penalty of reclusion perpetua.

The trial court imposed a fine on appellant in the sum of One Million Pesos (P1,000,000.00), without subsidiary imprisonment in case of insolvency. The imposition of a fine is mandatory in cases of conviction of possession of illegal drugs. This being within the limits allowed by the law, the amount of the fine must be sustained. All these sanctions might not remedy all the havoc wrought by prohibited drugs on the moral fiber of our society, especially the youth.[107] But these penalties should warn peddlers of prohibited drugs that they cannot ply their trade in our streets with impunity.

WHEREFORE, the decision of the Regional Trial Court of Baguio City, Branch 6, in Criminal Case No. 15800-R, convicting appellant MODESTO TEE alias ESTOY TEE of violation of Section 8 of Republic Act No. 6425, as amended, is AFFIRMED with the MODIFICATION that appellant is hereby sentenced to suffer the penalty of reclusion perpetua. The fine of ONE MILLION (P1,000,000.00) PESOS imposed on him is sustained. Appellant is likewise directed to pay the costs of suit.

SO ORDERED. 2. Nature: Appeal from a decision of the RTC, Olongapo City, Br 73 Facts: Based on the testimonies of P/Lt. Ernesto Abello, Officer-in-charge (NARCOM, olongapo and P/Lt. Jose Domingo: December 13, 1988: Abello was tipped off by Benjie that a certain Aling Rosa was arriving from Baguio City the ff day with a large volume of marijuana. Paello assembled team and they proceeded the next day to West Bajac-Bajac, Olongapo City and deployed themselves near PNB building. Victory Liner Bus 474 arrived and 2 females and 1 male got off. Informant pointed at Aling Rosa who was then carrying traveling bag.

NARCOM approached accused and introduced themselves as NARCOM agents. Abello asked accused about contents of her bag and accused handed it to the former. Inspection: dried marijuana leaves packed in a plastic bag marked Cask Katutak. Agents confiscated bag and ticket and brought accused to NARCOM office where a receipt of Property Seized was prepared for confiscated leaves. PC/INP Crim Lab: positive Procedure: Prosection rested its case after presentation of testimonies of arresting officers and technical report. Defense did not present evidence but instead: Filed a Demurrer to evidence allegeging that: 19 20 illegal search and seizure inadmissibility of materials seized as evidence

Trial court denied demurrer to Evidence and did not rule on the illegality of search and seizure and inadmissibility of evidence. Accused testified on her behalf: 21 22 just came from theater after watching Balweg was merely helping old woman to carry shoulder bag when she was approached

by agents 23 she did not know woman personally and she averred that old woman was

nowhere to be found after her arrest Prosecution made formal offer of evidence. Defense filed Comment and/or Objection to Prosecutions Offer of Evidence 24 contested admissibility of the items seized as they were allegedly the product of

an unreasonable search and seizure RTC: conviction for transporting 8 kilos and 500 grams of marijuana 25 26 section 4, article 2 of RA 6425 LI + 20 thou without subsidiary imprisonment in case of insolvency

Issue: WON there was a valid warrantless arrest and search Held: No Ratio:

If probable cause is not established then a warrantless arrest and search incident to such warrantless arrest is invalid. 27 28 29 30 31 32 33 o no PC because accused was not even acting suspiciously officers had reasonable time to get warrant search was made on street, not on moving vehicle not in plain view not stop and frisk not under exigent and emergency circumstances not a waiver when she consented: The lack of objection to the search is not tantamount to a waiver of her consti

rights or a voluntary submission to a warrantless search o To constitute valid waiver, there must be an actual intention to relinquish right.

No valid arrest under sec 5, rule 113 a) when in his presence, the person to be arrested has committed, is actually

committing, or is attempting to commit an offense 34 35 accused was merely crossing street no PC to establish that she was committing crime at that time

If an arrest is incipiently illegal, then the subsequent search is similarly illegal, it being not incidental to a lawful arrest. JUDGeMENT REVERSED AND SET ASIDE, ACCUSED ACQUITTED AND ORDERED RELEASED 3. Nolasco v. Cruz Pao 139 SCRA 152 (1985) F: Milagros Aguilar-Roque was arrested together with Cynthia Nolasco by the Constabulary Security Group. Milagrso had been wanted as a high ranking officer of the CPP. The arrest took place at 11:30 a.m. of August 6, 1984. At noon of the same day, her premises were searched and 428 documents, a portable typewriter and 2 boxes were seized. Earlier that day, Judge Cruz Pao issued a search warrant for rebellion against Milagros. On the basis of the documents seized, charges of subversion and rebellion were filed but the fiscal''s office merely charged her and Nolasco with illegal possession of subversive materials. Milagros asked for suppression of the evidence on the ground that it was illegally obtained. The search warrant described the things to be seized as "Documents, papers and other records of the CPP, NPA and NDF, xxx". HELD: The search warrant is void because it fails to describe with particularity the things to be seized. It does not specify what the subversive books and instructions are and what the manuals not otherwise available to the public contain to make them subversive. There is absent a definite guideline as to what items might lawfully be seized, thus giving the officers discretion

regarding what articles they should seize. It is thus in the nature of a general warrant. 4. PAPA VS. MAGO Facts:Petitioner Martin Alagao, head of the counter-intelligence unit of the Manila Police Department, acting upona reliable information received on November 3,1966 to theeffect that a certain shipment of personal effects, allegedlymisdeclared and undervalued, would be released thefollowing day from the customs zone of the port of Manilaand loaded on two trucks, and upon orders of petitioner Ricardo Papa, Chief of Police of Manila and a duly deputizedagent of the Bureau of Customs, conducted surveillance atgate No.1of the customs zone.When the trucks left gate No.1at about 4 In theafternoon of November 4,1966, elements of the counter-intelligence unit went after the trucks and intercepted them atthe Agrifina Circle, Ermita, Manila. The load of the two trucks,consisting of nine bales of goods, and the two trucks, wereseized on instructions of the Chief of Police. Uponinvestigation, a person claimed ownership of the goods andshowed to the policemen a "Statement and Receipts of Duties Collected on Informal Entry No.147-5501", issued bythe Bureau of Customs in the name of a certain BienvenidoNaguit.The respondent Mago, filed a petition for mandamusand certiorari before the CFI Manila contending that thesearch and seizure is illegal for lack of a valid warrant.Moreover, she also contends that such articles sought fromher is not included by the law for prohibited importation andthat it no longer under the control of the Tariff and Customscode for it (articles) were already sold to the petitioner.She also contends that the search seizureconducted by the respondents are illegally being madeoutside the jurisdiction of the BOC and that the subsequentsearch warrant issued by the collector of customs is not validbeing not issued by a judge.The respondent Mago filed an ex-parte motion torelease the confiscated articles upon her posting a bond.This motion was then granted by the respondent JudgE jarencio. issue:Was the seizure of the goods unlawful? And that theBOC has no jurisdiction over the articles sought? Held:No. it is a valid seizure.The Chief of the Manila Police Department, RicardoG. Papa, having been deputized in writing by theCommissioner of Customs, could, for the purposes of theenforcement of the customs and tariff laws, effect searches,seizures, and arrests, and it was his duty to make seizure,among others, of any cargo, articles or other movableproperty when the same may be subject to forfeiture or liablefor any fine imposed under customs and tariff laws. He couldlawfully open and examine any box, trunk, envelope or other container wherever found when he had reasonable cause tosuspect the presence therein of dutiable articles introducedinto the Philippines contrary to law; and likewise to stop,search and examine any vehicle, beast or person reasonablysuspected of holding or conveying such article as aforesaid.It cannot be doubted, therefore, that petitioner Ricardo G.Papa, Chief of Police of Manila, could lawfully effect thesearch and seizure of the goods in question. The Tariff andCustoms Code authorizes him to demand assistance of anypolice officer to effect said search and seizure, and the latter has the legal duty to render said assistance. This was whathappened precisely in the case of Lt. Martin Alagao who, withhis unit, made the search and seizure of the two trucksloaded with the nine bales of goods in question at the Agrifina Circle. He was given authority by the Chief of Policeto make the interception of the cargo.Petitioner

Martin Alagao and his companionpolicemen had authority to effect the seizure without anysearch warrant issued by a competent court.The Tariff and Customs Code does not require saidwarrant in the instant case. The Code authorizes personshaving police authority under Section 2203 of the Tariff andCustoms Code to enter, pass through or search any land,inclosure, warehouse, store or building, not being a dwellinghouse; and also to inspect, search and examine any vesselor aircraft and any trunk, package, box or envelope or anyperson on board, or stop and search and examine anyvehicle, beast or person suspected of holding or conveyingany dutiable or prohibited article introduced into thePhilippines contrary to law, without mentioning the need of asearch warrant in said cases.It is our considered view, therefore, that except inthe case of the search of a dwelling house, personsexercising police authority under the customs law may effectsearch and seizure without a search warrant in theenforcement of customs laws. 5. GLENN CABALLES y CHUA, petitioner, vs. COURT OF APPEALS, HON. EMMANUEL D. LAUREA, HON. BENJAMIN T. ANTONIO, and PEOPLE OF THE PHILIPPINES, respondents. D E C I S I O N CALLEJO, SR., J.:

Before us is a petition for certiorari under Rule 65 of the Revised Rules of Court filed by the petitioner for the nullification of the Resolution of the Court of Appeals[1] which dismissed his petition for the issuance of a writ of habeas corpus for his release from detention despite the pendency of People of the Philippines v. Glenn Caballes[2] for rape, and its resolution denying his motion for reconsideration thereof.

The antecedents are as follows:

On November 19, 2001, petitioner Glenn Chua Caballes was charged with rape of a minor in the Regional Trial Court (RTC) of Malabon City. The case was docketed as Criminal Case No. 25756-MN and raffled to Branch 169, presided by Judge Emmanuel D. Laurea. Because the petitioner was charged with a non-bailable offense, he was detained.

The petitioner was arraigned on February 7, 2002 and pleaded not guilty to the offense charged. The prosecution presented two (2) witnesses, namely, Venice Vera Pio, the private complainant, and her mother. The petitioner, through counsel, commenced his cross-examination of Pio, but failed to complete the same. In January 2003, the petitioner engaged the services of a new counsel, Atty. Noel S. Sorreda, who entered his appearance as defense counsel.[3]

During the trial of February 26, 2003, the petitioner continued his cross-examination of Pio but still failed to terminate the same. The trial was set on March 6, 2003 for the petitioner to terminate his cross-examination of Pio. However, due to the illness of the private prosecutor, the trial on the said date did not proceed. The trial was further reset to March 17, 2003 during which the petitioner continued with his crossexamination of the private complainant. Thereafter, the continuation of trial was set on April 3, 21, and 30, 2003. On April 3, 2003, the petitioner concluded his crossexamination of Pio. The prosecution declared that its next witness would be Dr. Jose Arnel Marquez, the Medico-Legal Officer of the Philippine National Police (PNP) Crime Laboratory, who had conducted a medico-legal examination of the private complainant, but stated that he had not been subpoenad. The prosecution prayed for the cancellation of the trial scheduled on April 21, 2003 to give the prosecution time to secure and cause the service of a subpoena duces tecum on him. The petitioner conformed to the motion of the prosecution.

On April 28, 2003, the petitioner filed a petition for bail.[4]

The trial of April 30, 2003 did not proceed because the petitioners counsel filed a Manifestation[5] that his presence was required in an execution sale in Cavite. The said counsel manifested that he reserved his right to cross-examine any witness the prosecution would present in case trial would proceed on that date; on the other hand, in the event that the trial court would cancel the trial, he would be available in May 2003 and during the first half of June 2003.

The trial court reset the hearing of the case to 8:30 a.m. of June 19, 2003 and gave the prosecution ten (10) days to file its opposition[6] to the petitioners petition for bail. It likewise ordered the issuance of a subpoena to Dr. Jose Arnel Marquez to require him to attend the trial on the said date.

On May 5, 2003, the petitioner filed a motion[7] seeking an earlier trial date, invoking his right to speedy trial under the Speedy Trial Act of 1998. He also filed a motion for the urgent resolution of his petition for bail.[8]

On May 12, 2003, the petitioner filed another motion[9] praying that the hearing scheduled on June 19, 2003 be moved to an earlier date, preferably on May 26, 28 or 29, 2003. In the meantime, the prosecution filed its comment/opposition[10] to the petitioners petition for bail.

On May 13, 2003, the court issued an Order[11] declaring that the petition for bail

was submitted for its resolution and denying the petitioners motion for an earlier trial date. On June 16, 2003, the trial court issued its Order[12] denying the petition for bail, on its finding that the evidence of guilt against the petitioner was strong.

During the trial of June 19, 2003, Dr. Marquez failed to appear before the court because, in the meantime, he had been assigned to the Eastern Police District and failed to receive the subpoena issued to him by the court. The prosecution prayed for continuance, but the petitioner objected and invoked his right to speedy trial. The court, nevertheless, granted the motion and reset the trial to July 17, 2003.

On June 27, 2003, the court issued a subpoena duces tecum/ad testificandum to Dr. Jose Arnel Marquez requiring him to appear for the trial set on July 17, 2003.[13]

On July 4, 2003, the petitioner filed a Motion for Reconsideration of the courts Order dated June 16, 2003 denying his petition for bail. His motion was set for hearing, also on July 17, 2003. However, the petitioner preempted the resolution of his motion for reconsideration and filed a Motion to Dismiss[14] the case on July 11, 2003 on the ground that his right to speedy trial had been violated. He made the following allegations:

1. The hearings in the instant case have more often than not been scheduled more than one month apart;

2. In the hearing on April 30, 2003, in particular, the day before undersigned counsel had filed a Manifestation stating inter alia that his available dates for the next hearing may be any Monday, Wednesday or Thursday for the whole of May 2003 and the first half of June 2003, except on May 14 and 21 yet Atty. Manalaysay asked for the next hearing on June 19 which is already outside or beyond the dates mentioned in the manifestation, and which was more than 1-1/2 months away, but which the Honorable Court nonetheless granted;

3. Atty. Manalaysay has never been able to present any good cause as to how come he was not able to present Dr. Marquez on April 30, 2003, and then again on June 19, 2003; and as aforesaid, his absence on March 6, 2003 has not been supported by any medical certificate;

4. The first hearing in the instant case was held on June 13, 2002, thus it has now been more than one year, or close to 400 days ago since trial started; neither has there been any authorization from the Supreme Court that the trial period may

exceed 180 days;

5. There has been no statement by the Honorable Court in any of its orders granting continuance that the ends of justice served by taking such action outweigh the best interest of the public and the accused in a speedy trial;

6. As above stated, it appears that the prosecution made a false statement before the Honorable Court in claiming they had asked Dr. Marquez to testify in the June 19, 2003 hearing, when in fact they had not.[15]

Dr. Jose Arnel Marquez had apparently still not received the subpoena issued by the trial court, because of which the prosecution again failed to present him as a witness during the trial of July 17, 2003. The prosecution prayed for continuance, to which the petitioner vigorously objected. The court, however, granted the motion and reset the trial to August 11, 2003.[16]

On July 24, 2003, Judge Laurea issued an Order[17] inhibiting himself from hearing the case to avoid being misunderstood, to preserve his reputation for probity and objectivity and to live up to the ideal impartial administration of justice. The case was re-raffled to Branch 170, presided by Judge Benjamin T. Antonio, who calendared the case for trial on September 8, 2003. Nevertheless, on August 11, 2003, the petitioner filed a Motion for Reconsideration[18] of Judge Laureas Order dated July 24, 2003, which the latter denied, on the finding that no cogent reason was presented to reconsider the same.[19]

During the hearing on September 8, 2003, Judge Antonio granted the private prosecutors motion to be given five (5) days within which to oppose the petitioners motion to dismiss. Judge Antonio also set the trial on September 18, 2003.[20] On the latter date, the trial court issued an Omnibus Order[21] denying the petitioners motion to dismiss. The trial court reasoned that there was no violation of the petitioners right to speedy trial, considering that the apparent delays could not be attributed to the fault of the prosecution alone. The trial court noted that the petitioner also sought Postponements of the trials.

Anent the motion for reconsideration of the courts Order dated June 16, 2003 which denied the petition for bail, the trial court considered the same as having been abandoned by the petitioner upon the filing of his motion to dismiss the case without waiting for the resolution of his motion for reconsideration on his petition for bail.

The petitioner then filed with the Court of Appeals (CA) a Petition for Habeas Corpus and/or Certiorari and Prohibition.[22] On October 2, 2003, the CA issued a Resolution requiring the petitioner to inform the court of his choice of remedy within five (5) days from notice thereof. In compliance therewith, the petitioner filed a manifestation with the appellate court that he had chosen his petition to be treated as a petition for habeas corpus without prejudice to the concomitant application of certiorari if the court considered the same necessary or appropriate to give effect to the writ of habeas corpus.

The petitioner averred that (a) he was deprived of his right to a speedy trial and his constitutional right to a speedy disposition of the case; (b) Judge Laurea erred in inhibiting himself from the case; (c) the trial court committed grave abuse of its discretion in denying his petition for bail; and (d) Judge Antonio had prejudged the case against him.

On December 9, 2003, the CA issued its assailed Resolution dismissing the petition, viz:

WHEREFORE, for being the wrong or improper remedy, the PETITION FOR HABEAS CORPUS is DISMISSED.

SO ORDERED.[23]

According to the appellate court, while the petitioner manifested his preference that his petition be treated as a petition for habeas corpus, the same was not the proper remedy to review and examine the proceedings before the trial court and as a relief from the petitioners perceived oppressive situation in the trial court. The CA further emphasized that a writ of habeas corpus is not a writ of error; that it could not exercise its certiorari jurisdiction over the acts or omission of the respondent judge as a concomitant remedy; and that the remedy for habeas corpus and certiorari are different in nature, scope and purpose. The appellate court declared that the petitioner failed to present any evidence to prove that there was any intentional or deliberate delay caused to prejudice him; nor was there any malice in the failure of the prosecution to promptly serve the subpoena duces tecum/ad testificandum to its witnesses. The court also noted that the resetting of petitioners case may also be attributed to the voluminous work of the RTC involved.

The petitioner filed a motion for reconsideration of the said decision contending that (a) the congestion of the trial courts calendar is not a valid ground for continuance of the trial; (b) the trial court failed to secure an extension of time of the trial period

from the Supreme Court; (c) the trial court should have given a precedence to the case, the charge therein being a heinous crime; (d) his petition for a writ of habeas corpus was proper because his continued detention had become illegal, following the prosecutor and the trial courts violation of his right to a speedy trial, and the trial courts denial of his motion to dismiss the case and his petition for bail which was tainted with grave abuse of discretion; and (e) a writ of habeas corpus may be issued with the writ of certiorari for the purpose of review. However, the CA denied the petitioners motion for lack of merit.

The petitioner filed a petition for certiorari in this Court under Rule 65 of the Rules of Court reiterating the grounds contained in his motion for reconsideration of the CA decision. The petitioner averred that the appellate court committed grave abuse of discretion amounting to excess or lack of jurisdiction in rendering its resolution, as well as the resolution denying his motion for reconsideration thereof.

In its comment on the petition, the Office of the Solicitor General submits that a petition for a writ of habeas corpus is not the proper remedy to assail the trial courts order denying his petition for bail, motion to dismiss the case, and Judge Laureas order of inhibition. The OSG posits that the petitioner was not deprived of his constitutional right to a speedy disposition of his case as well as under the Speedy Trial Act.

The issues for resolution are the following: (a) whether or not the decision of the CA is already final and executory; (b) whether the proper remedy from the appellate courts denial of a petitioner for a writ if habeas corpus is a petition for certiorari under Rule 65 of the Rules of Court; and (c) if in the affirmative, whether or not the petitioner is entitled to the issuance of the writ.

On the first issue, we find and so rule that the petitioners recourse to this Court via a petition for certiorari from the decision of the CA dismissing his petition for a writ of habeas corpus is inappropriate. Section 39 of Batas Pambansa Blg. 129 provides that the period for appeal from the judgment of any court in habeas corpus cases shall be forty-eight (48) hours from notice of the judgment appealed from. While the said provision was not incorporated in the 1997 Rules of Civil Procedure, this Court approved Administrative Matter No. 01-1-03-SC amending Section 3, Rule 41of the said Rules, which took effect on July 15, 2001, thus:

SEC. 3. Period of ordinary appeal; appeal in habeas corpus cases.The appeal shall be taken within fifteen (15) days from notice of the judgment or final order appealed from. Where a record on appeal is required, the appellant shall file a notice of appeal and a record on appeal within thirty (30) days from notice of the judgment or final order. However, an appeal in habeas corpus cases shall be taken within forty-eight

(48) hours from notice of the judgment or final order appealed from.

The period of appeal shall be interrupted by a timely motion for new trial or reconsideration. No motion for extension of time to file a motion for new trial or reconsideration shall be allowed.

Following the rule, the petitioner should have appealed to this Court from the CA decision denying his petition for a writ of habeas corpus, as well as the denial of his motion for reconsideration thereof; instead, the petitioner filed a petition for certiorari under Rule 65 of the Rules of Court, as amended. The well-settled rule is that certiorari is not available where the aggrieved partys remedy of appeal is plain, speedy and adequate in the ordinary course, the reason being that certiorari cannot co-exist with an appeal or any other adequate remedy. The existence and availability of the right to appeal are antithetical to the availment of the special civil action for certiorari. These two remedies are mutually exclusive.[24] An appeal in this case would still have been a speedy and adequate remedy. Consequently, when the petitioner filed his petition in this Court, the decision of the CA was already final and executory.

It bears stressing that a decision in a habeas corpus action stands in no different position than with any other proceeding and if the appealed decision is to be reviewed by an appellate court, the remedy is by writ of error because the error committed by the court is an error of judgment and not an error of jurisdiction.[25]

Besides, as correctly held by the CA, a writ of habeas corpus is not the proper remedy to assail the trial courts denial of the petitioners motion to dismiss the case, the denial of the petition for bail, as well as the voluntary inhibition of Judge Laurea.

A petition for the issuance of a writ of habeas corpus is a special proceeding governed by Rule 102 of the Rules of Court, as amended. In Ex Parte Billings,[26] it was held that habeas corpus is that of a civil proceeding in character. It seeks the enforcement of civil rights. Resorting to the writ is not to inquire into the criminal act of which the complaint is made, but into the right of liberty, notwithstanding the act and the immediate purpose to be served is relief from illegal restraint. The rule applies even when instituted to arrest a criminal prosecution and secure freedom. When a prisoner petitions for a writ of habeas corpus, he thereby commences a suit and prosecutes a case in that court.[27]

Habeas corpus is not in the nature of a writ of error; nor intended as substitute for

the trial courts function.[28] It cannot take the place of appeal, certiorari or writ of error. The writ cannot be used to investigate and consider questions of error that might be raised relating to procedure or on the merits. The inquiry in a habeas corpus proceeding is addressed to the question of whether the proceedings and the assailed order are, for any reason, null and void.[29] The writ is not ordinarily granted where the law provides for other remedies in the regular course, and in the absence of exceptional circumstances. Moreover, habeas corpus should not be granted in advance of trial.[30] The orderly course of trial must be pursued and the usual remedies exhausted before resorting to the writ where exceptional circumstances are extant. In another case, it was held that habeas corpus cannot be issued as a writ of error or as a means of reviewing errors of law and irregularities not involving the questions of jurisdiction occurring during the course of the trial, subject to the caveat that constitutional safeguards of human life and liberty must be preserved, and not destroyed.[31] It has also been held that where restraint is under legal process, mere errors and irregularities, which do not render the proceedings void, are not grounds for relief by habeas corpus because in such cases, the restraint is not illegal.[32]

Habeas corpus is a summary remedy. It is analogous to a proceeding in rem when instituted for the sole purpose of having the person of restraint presented before the judge in order that the cause of his detention may be inquired into and his statements final.[33] The writ of habeas corpus does not act upon the prisoner who seeks relief, but upon the person who holds him in what is alleged to be the unlawful authority.[34] Hence, the only parties before the court are the petitioner (prisoner) and the person holding the petitioner in custody, and the only question to be resolved is whether the custodian has authority to deprive the petitioner of his liberty.[35] The writ may be denied if the petitioner fails to show facts that he is entitled thereto ex merito justicias.[36]

A writ of habeas corpus, which is regarded as a palladium of liberty is a prerogative writ which does not issue as a matter of right but in the sound discretion of the court or judge. It, is, however, a writ of right on proper formalities being made by proof.[37] Resort to the writ is to inquire into the criminal act of which a complaint is made but unto the right of liberty, notwithstanding the act, and the immediate purpose to be served is relief from illegal restraint.[38] The primary, if not the only object of the writ of habeas corpus ad subjuciendum is to determine the legality of the restraint under which a person is held.[39]

Our review of the petitioners material averments in his petition before the CA reveals that it was a petition for habeas corpus or, in the alternative, a petition for a writ of certiorari The petitioner assailed therein the orders of the trial court denying his petition for bail and his motion to dismiss on the ground that he was deprived of his right to a speedy disposition of the case against him, and questioned Judge Laureas order of inhibition. We agree with the CA that a petition for a writ of habeas corpus cannot be joined with the special civil action for certiorari because

the two remedies are governed by a different set of rules. Rule 2, Section 5(b) of the Rules of Court mandates that the joinder of causes of action shall not include special actions or actions governed by special rules, thus proscribing the joinder of a special proceeding with a special civil action.

We also agree with the ruling of the CA that a petition for a writ of habeas corpus is a remedy different from the special civil action of certiorari under Rule 65 of the Rules of Court, as amended. The writ of habeas corpus is a collateral attack on the processes, orders, or judgment of the trial court, while certiorari is a direct attack of said processes, orders, or judgment on the ground of lack of jurisdiction or grave abuse of discretion amounting to excess or lack of jurisdiction. A writ of certiorari reaches only jurisdictional errors. It has no other use, except to bring before the court a record material to be considered in exercising jurisdiction. A writ of certiorari reaches the record. On the other hand, a writ of habeas corpus reaches the body but not the record; it also reaches jurisdictional matters but does not reach the record. However, when jurisdiction is obtained by the issuance of a writ of habeas corpus, to bring the body of the person whose liberty is involved into court, and if it is necessary, to provide the record upon which the detention is based, that may be accomplished by using a writ of certiorari as an ancillary proceeding, i.e., it is subordinate to or in aid of the primary action for the purpose of impeaching the record. When a writ of certiorari is issued as the foundation of jurisdiction to bring it and direct upon the validity of a judicial determination by any body or officer, jurisdictional questions only are reached, and such questions pertaining to the detention made by the officer or body particularly complained of.[40]

The petitioner manifested to the appellate court that his petition should be treated as a petition for habeas corpus. Even then, the CA rightly dismissed the petition because the petitioner failed to establish his right to the writ. The records show that the petitioner was charged with rape punishable by reclusion perpetua and was detained based on the said charge; hence, if the evidence of his guilt is strong, he shall not be admitted to bail regardless of the stage of the criminal prosecution.[41] There is no question that the trial court had jurisdiction over the offense charged and over the person of the petitioner. The jail warden has the authority and, in fact, is mandated to detain the petitioner until granted bail by the court, or the case against him dismissed, or until he is acquitted after trial. The petitioner failed to establish that his incarceration pendente lite was illegal, and likewise failed to establish exceptional circumstances warranting the issuance of a writ of habeas corpus by the appellate court.

In Galvez v. Court of Appeals,[42] the Court ruled that a petition for habeas corpus is not the proper remedy to assail the denial thereof:

The original jurisdiction to grant or deny bail rested with said respondent. The

correct course was for petitioner to invoke that jurisdiction by filing a petition to be admitted to bail, claiming a right to bail per se by reason of the weakness of the evidence against him. Only after that remedy was denied by the trial court should the review jurisdiction of this Court have been invoked, and even then, not without first applying to the Court of Appeals if appropriate relief was also available there. [43]

The remedy of the petitioner from the Order of the trial court denying his petition for bail was to file a petition for certiorari in the CA if the trial court committed a grave abuse of its discretion amounting to excess or lack of jurisdiction in issuing the said order.[44] If the petitioner had done so, his petition would have been granted because as gleaned from the assailed order of the trial court, it failed to summarize the testimonies of the private complainant and that of her mother. Hence, such order is invalid.[45] The trial court would have had to issue another order containing the summary of the testimonies of the private complainant and her mother, including its findings and conclusions. However, the petitioner would still not be entitled to be released from detention in the meantime.

It bears stressing that under the second paragraph of Section 1, Rule 137[46] of the Rules of Court, the voluntary inhibition of a Judge is addressed to his sound discretion for just or valid reasons, the primary consideration being that the peoples faith in the courts of justice is not impaired.[47] The petitioner should have thus filed a petition for certiorari and/or prohibition in the CA, instead of a petition for habeas corpus.

In cases where the right of the accused to a speedy trial is violated by the prosecution, the remedy lies in the procedure provided for under Republic Act No. 8493, as implemented by Rule 119 of the 2000 Rules of Criminal Procedure. Section 8 of the said Rule provides:

SEC. 8. Sanctions. In any case in which private counsel for the accused, the public attorney, or the prosecutor:

(a) Knowingly allows the case to be set for trial without disclosing that a necessary witness would be unavailable for trial;

(b) Files a motion solely for delay which he knows is totally frivolous and without merit;

(c) Makes a statement for the purpose of obtaining continuance which he knows to be false and which is material to the granting of a continuance; or

(d) Willfully fails to proceed to trial without justification consistent with the provisions hereof, the court may punish such counsel, attorney, or prosecutor, as follows:

(1) By imposing on a counsel privately retained in connection with the defense of an accused, a fine not exceeding twenty thousand pesos (P20,000.00);

(2) By imposing on any appointed counsel de oficio, public attorney, or prosecutor a fine not exceeding five thousand pesos (P5,000.00); and

(3) By denying any defense counsel or prosecutor the right to practice before the court trying the case for a period not exceeding thirty (30) days. The punishment provided for by this section shall be without prejudice to any appropriate criminal action or other sanction authorized under these Rules.

If the trial court acted with grave abuse of its discretion amounting to excess of lack of jurisdiction in granting the prosecutions motion for the resetting of the trial over the petitioners objections, the more appropriate remedy would have been to file a petition for certiorari and/or a petition for mandamus to compel the trial court to comply with the timeline provided for by the said Rule for trial and termination of the case.

It was inappropriate for the petitioner to file a petition for habeas corpus assailing the trial courts order denying his motion to dismiss the case for failure to comply with the timeline provided for by the said Rules. Reading and evaluating the assailed Order of the trial court dated September 18, 2000, it cannot be gainsaid that the court violated the right of the petitioner to speedy trial. Thus:

The instant motion is anchored on the alleged violation of and/or to enforce the right of the accused to speedy trial. In invoking such right, the accused contends that the failure of the prosecution to present the medico-legal officer who examined the victim on two (2) occasions, and the non-appearance of the private prosecutor on one occasion caused undue delay in the proceedings of this case.

The prosecution vigorously opposed the Motion to Dismiss and claimed that since the prosecution has not yet rested its case, the Court may not be able to appreciate the merits of the instant motion in the light of the unfinished presentation of evidence for the prosecution and that the grounds relied by the defense do not touch on the sufficiency of the prosecutions evidence to prove the guilt of the accused beyond reasonable doubt, but rather on the alleged delay and failure to present Dr. Jose Arnel Marquez of the PNP Crime Laboratory.

After due consideration, the Court finds the instant motion untenable. The alleged delay and failure to present the medico-legal officer cannot be attributed to the fault of the prosecution and/or the Court. The prosecution and the Court cannot encroach on the right of the medico-legal officer to appear inasmuch as his schedule conflicted with the hearings set for his appearance. Moreover, delays assailed by defense counsel that violated accused right to speedy trial are not all at the instance of the prosecution. In fact, the defense, contributed to the delay since the former defense counsel and even the present defense counsel sought postponements of the hearings.

Be that as it may, despite the non-presentation of the medico-legal officer, the Court (Branch 169) proceeded in resolving the Petition for Bail of the accused (albeit unfavorable to the cause of the accused) on the basis of the sole testimony of the complainant, which is backed up by several jurisprudence to this effect. The defense, filed a Motion for Reconsideration of said denial after he has filed a Motion to Dismiss. The filing of these pleadings adds to the delay until the Presiding Judge who denied the Petition for Bail voluntarily inhibited himself from this case. Then when the Motion to Dismiss was set for hearing, the Court, in an attempt to expedite the proceedings, suggested for the parties to stipulate on the medical findings of the medico-legal officer so as to dispense with his presentation. Defense counsel, however, would not want to enter into such a stipulation. Hence, another delay.[48]

We agree with the petitioner that a petition for the issuance of a writ of habeas corpus may be filed if one is deprived of his right to a speedy disposition of the case under Article IV, Section 16 of the 1987 Constitution and of his right to due process. [49] However, the petitioner never invoked in the trial court his constitutional right to a speedy disposition of the case against him. What he invoked was his right to a speedy trial under Rule 119 of the 2000 Rules of Criminal Procedure. He invoked his constitutional right to a speedy disposition of the case against him, for the first time, only in the Court of Appeals when he filed his petition for habeas corpus.

Even then, the petitioner failed to establish his claim that he was deprived of his right to a speedy disposition of the case. In Marilyn Corpuz, et al., v. Sandiganbayan, [50] the Court had the occasion to state

The right of the accused to a speedy trial and to a speedy disposition of the case against him was designed to prevent the oppression of the citizen by holding criminal prosecution suspended over him for an indefinite time, and to prevent delays in the administration of justice by mandating the courts to proceed with reasonable dispatch in the trial of criminal cases. Such right to a speedy trial and a speedy disposition of a case is violated only when the proceeding is attended by vexatious, capricious and oppressive delays. The inquiry as to whether or not an accused has been denied such right is not susceptible by precise qualification. The concept of a speedy disposition is a relative term and must necessarily be a flexible concept.

While justice is administered with dispatch, the essential ingredient is orderly, expeditious and not mere speed. It cannot be definitely said how long is too long in a system where justice is supposed to be swift, but deliberate. It is consistent with delays and depends upon circumstances. It secures rights to the accused, but it does not preclude the rights of public justice. Also, it must be borne in mind that the rights given to the accused by the Constitution and the Rules of Court are shields, not weapons; hence, courts are to give meaning to that intent.

The Court emphasized in the same case that:

A balancing test of applying societal interests and the rights of the accused necessarily compels the court to approach speedy trial cases on an ad hoc basis.

In determining whether the accused has been deprived of his right to a speedy disposition of the case and to a speedy trial, four factors must be considered: (a) length of delay; (b) the reason for the delay; (c) the defendants assertion of his right; and (d) prejudice to the defendant. Prejudice should be assessed in the light of the interest of the defendant that the speedy trial was designed to protect, namely: to prevent oppressive pre-trial incarceration; to minimize anxiety and concerns of the accused to trial; and to limit the Possibility that his defense will be impaired. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. There is also prejudice if the defense witnesses are unable to recall accurately the events of the distant past. Even if the accused is not imprisoned prior to trial, he is still disadvantaged by restraints on his liberty and by living under a cloud of anxiety, suspicion and often, hostility. His financial resources may be drained, his association is curtailed, and he is subjected to public obloquy.

Delay is a two-edged sword. It is the government that bears the burden of proving its case beyond reasonable doubt. The passage of time may make it difficult or impossible for the government to carry its burden. The Constitution and the Rules do not require impossibilities or extraordinary efforts, diligence or exertion from courts

or the prosecutor, nor contemplate that such right shall deprive the State of a reasonable opportunity of fairly prosecuting criminals. As held in Williams v. United States, for the government to sustain its right to try the accused despite a delay, it must show two things: (a) that the accused suffered no serious prejudice beyond that which ensued from the ordinary and inevitable delay; and (b) that there was no more delay than is reasonably attributable to the ordinary processes of justice.

Closely related to the length of delay is the reason or justification of the State for such delay. Different weights should be assigned to different reasons or justifications invoked by the State. For instance, a deliberate attempt to delay the trial in order to hamper or prejudice the defense should be weighted heavily against the State. Also, it is improper for the prosecutor to intentionally delay to gain some tactical advantage over the defendant or to harass or prejudice him. On the other hand, the heavy case load of the prosecution or a missing witness should be weighted less heavily against the State.

In this case, the petitioner was arraigned on February 7, 2002. In the meantime, he was able to present only two witnesses. The petitioner failed to terminate the crossexamination of the private complainant by the year 2002. The Court cannot determine the reason for the delay because the records of the RTC are not before it. Neither of the parties made any explanation for the delay; nor is there any showing that the counsel of the petitioner complained about the delay. Aside from the petitioners claim that the private prosecutor failed to give good cause for his failure to present Dr. Jose Arnel Marquez during the trial dates April 30, 2003 and June 19, 2003, as well as to substantiate his absence during the trial of March 6, 2003 with a medical certificate, the petitioner failed to support his claim in his pleadings before the CA and in this Court. On the other hand, the counsel of the petitioner was absent during the trial on April 30, 2003 because he had to attend an execution sale in Cavite. The petitioners counsel gave priority to the execution sale and asked for a resetting despite the fact that his client, the petitioner, was detained for a quasiheinous crime. While it is true that the trial was reset to June 19, 2003, or more than one month from April 30, 2003, the petitioners counsel himself manifested that he was available for trial during the first half of June 2003. There was a difference of only four (4) days from the trial date set by the court and the available dates suggested by the petitioners counsel. It bears stressing that trial dates cannot be set solely at the convenience of the petitioners counsel. The trial dates available in the calendar of the court and of the prosecutor must also be taken into account.

Hence, it cannot be said that the petitioner was deprived of his right to a speedy disposition of the case simply because the private prosecutor failed to submit a medical certificate for his absence during the trial of March 6, 2003. The petitioner could have asked the court to cite the private prosecutor in contempt of court for his failure to submit the said certificate; he failed to do so. Moreover, the petitioner failed to establish any serious prejudice by the delay of the trial, and that the State deliberately delayed the trial to prejudice him.

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit. No costs.

SO ORDERED. 6. The facts are as follows:

Petitioner Benjamin D. Obra was, at the time material to this case, the Regional Director of the Bureau of Mines and Geo-Sciences (BMGS) in Baguio City. On June 26, 1985, Jeannette M. Grybos wrote him a letter on behalf of the Gillies heirs of Palasaan, Mankayan, complaining that private respondents, spouses James Brett and June Prill Brett, had been conducting illegal mining activities in an area in Bgy. Palasa-an, Mankayan, Benguet belonging to Gillies family. It was alleged:

A certain James Brett and June Prill Brett have since 1981 been illegally mining the above-named Gillies property, extracting ore and mining without permit. We would like therefore to have their operations investigated and inspected. We request further that their operations be stopped and their mining equipments (sic) be confiscated. For your ready reference we are enclosing some documents and pictures regarding the matter.

On the same day, petitioner Obra wrote Brig. Gen. Tomas Dumpit, then the Commanding General of the Regional Unified Command I (RUC-1) of the Philippine Constabulary (PC), with headquarters at Camp Bado Dangwa, La Trinidad, Benguet, requesting assistance in apprehending a truck allegedly used by private respondents in illegal mining in the area. The pertinent portion of Obras letter to Dumpit reads:

[In connection with the complaint of Ms. Jeannette M. Grybos,] we are enlisting the assistance of your command by way of checking and apprehending a truck colored blue and yellow lining which is used in transporting illegally mined ores from Palasaan, Mankayan, Benguet to Baguio City. Said vehicle passes through the military outpost located at the main entrance of Camp Dangwa.

Kindly call up the Bureau of Mines and Geo-Sciences, Baguio, when such truck will be apprehended so that this Office could take appropriate action therein.

The following day, June 27, 1985, petitioner Obra wrote private respondents and Ms. Grybos, informing them that the BMGS was going to conduct an ocular inspection and

field investigation on July 2-5, 1985 at Palasa-an, Mankayan, Benguet in connection with Grybos complaint and requesting them and their witnesses to be present at the investigation so that all legal and technical matters, as well as the facts surrounding the case, shall be gathered and collated in order for this Office to take the appropriate action thereon. . . .

Copies of the letters were furnished petitioner Dumpit with the request that assistance be extended by RUC-1 to insure the success and peaceful outcome of the investigation. Supposedly attached to the request was a certified true copy of a certification, dated June 20, 1985, made by the BMGS stating that no Mines Temporary Permit, Small-Scale Mining Permit or any permit was issued to James Brett within the Gillies Property in Palasa-an, Mankayan, Benguet.

A similar letter[2 was sent by petitioner Obra on June 27, 1985, to Col. Bernardo Estepa, Provincial Commander of Benguet, with the request that the latter stop momentarily any mining operation or activity, if there be any, of James and June Prill Brett in Palasa-an, Mankayan, Benguet until the controversy or case has been resolved by [the BMGS].

Accordingly, elements of RUC-1 under Major Guillermo Densen and led by SGT. Josefino A. Morales seized, on July 1, 1985, an Isuzu ELF truck (ABX-587) belonging to private respondents as it was entering the Mamakar mining area in Palasa-an, Mankayan, Benguet. The truck was impounded by the military and prevented from leaving the area except on mercy missions to transport sick soldiers and workers to the hospital and when used to buy food supplies for the men inside the camp.[3

Private respondents then filed a complaint[4 for injuction and damages, with an application for temporary restraining order, with the Regional Trial court, Branch 8, of Baguio and Benguet. They alleged that the truck had been seized without prior investigation to determine the existence of probable cause and that this was in violation of private respondents constitutional rights under Art. 32, in relation to Arts. 19, 20 and 21, of the Civil Code.

On July 18, 1985, the trial court issued a temporary restraining order directing petitioners to cease and desist from preventing the subject truck from leaving the mine site.[5 On August 8, 1985, the court issued a writ of preliminary injunction.

After trial, the court gave judgment to private respondents. It found that no investigation had been conducted either by petitioner Obra or his office or by petitioner Dumpit to verify the complaint of Jeannette Grybos before the vehicle was

ordered seized by them, and that, as a result, private respondents had been deprived of the use and enjoyment of property without due process of law. Accordingly, the trial court ruled that, under Art. 32 of the Civil Code and the ruling in Aberca v. Ver, [6 private respondents wer entitled to actual and compensatory damages, moral damages, and exemplary damages in the total amount of P100,000.00 and attorneys fees in the total amount of P10,000.00, plus costs of suit.

On appeal, the appellate court affirmed the decision in toto. Hence, this petition. Petitioners contend:

1. PETITIONERS COULD NOT BE HELD LIABLE FOR DAMAGES IN THE PERFORMANCE OF THEIR DUTY IN GOOD FAITH.

2. PETITIONERS ARE ENTITLED TO AN AWARD OF DAMAGES.

The contentions are without merit. The decision of the Court of Appeals is affirmed.

Petitioners invoke P.D. No. 1281, as amended, authorizing the Regional Director of the BMGS to order the seizure and confiscation, in favor of the Government, of the tools and equipment used in the commission of an offense and to deputize, when necessary, any member or unit of the PC, police agency, barangay or any qualified person to police mining activities.[7 They claim that petitioner Obra made his request to his co-petitioner in good faith and solely for the purpose of maintaining the status quo while the investigation of Grybos complaint was being conducted, after finding that private respondents had no permit to conduct mining activities in the contested area.

The provisions of P.D. No. 1281, which petitioners invoke in their defense, read:

Sec. 3. The Bureau of Mines shall have the following powers and functions, to wit:

. . . .

f.) To arrest or order the arrest, even without warrant, of any person who has committed or is in the act of committing any of the offenses defined under Presidential Decree No. 463, or any other laws being implemented by the Bureau of

Mines, and seize and confiscate or order the seizure and confiscation, in favor of the government, of the tools and equipment used in the commission of the offense and the minerals extracted by the offender, and institute whatever action that may be necessary relative thereto;

g.) To deputize, when necessary, any member or unit of the PC, police agency, barangay or any qualified person to police all mining activities;

. . . .

Sec. 6. The Bureau of Mines shall have jurisdictional supervision and control over all holders of mining claims or applicants for and/or grantees of mining licenses, permits, leases and/or operators thereof, including mining service contracts and service contracts insofar as their mining activities are concerned; and in the exercise of such authority, it shall have the power to enlist the aid and support of all law enforcement agencies of the Government, civil and/or military.

Petitioners contend that these provisions of the Decree were justified under Art. IV, 3 of the 1973 Constitution which provided that

The right of the people to be secure in their persons, houses, papers, and effects aginst unreasonable searches and seizures of whatever nature and for any purpose shall not be violated, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined by the judge, or such other responsible officer as may be 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 persons or things to be seized.[8

The above provision of the 1973 Constitution, however, merely validated the grant by law to nonjudicial officers of the power to issue warrants of arrest or search warrants, but did not in any way exempt these officers from the duty of determining the existence of probable cause as basis for the issuance of such warrants. Indeed, the issue in this case is not whether petitioner Obra had authority to issue a search warrant and to deputize the military to assist in his investigation. The question is whether he conducted an investigation and found probable cause for ordering the seizure and impoundment of private respondents vehicle. The answer is: he did not. To the contrary, as petitioner Obras letters to private respondents and to Grybos clearly stated, an investigation was to be held on July 2-5, 1985 precisely to determine the veracity of the allegations in Grybos complaint.

Apparently, petitioner Obras only basis for ordering the seizure of the vehicle was an alleged certification from the BMGS that no mining permit had been issued to private respondents. The certification, however, was not presented in evidence nor does a copy thereof appear in the records.

On the contrary, in its resolution[9 dated may 12, 1986, the BMGS found that private respondent June Prill Brett had a valid and subsisting mining claim within the area and that it was the Gillies family which had no permit or lease from the government, although it was the first to work the claim.

Nor indeed could the seizure of the vehicle be justified under the moving vehicle doctrine.[10 The truck was seized while it was entering the mining area; it was not transporting minerals outside of the area.[11 As held in People v. Bagista,[12

With regard to the search of moving vehicles, this had been justified on the ground that the mobility of motor vehicles makes it possible for the vehicle to be searched to move out of the locality or jurisdiction in which the warrant must be sought.

This is in no way, however, gives the police officers unlimited discretion to conduct warrantless searches of automobiles in the absence of probable cause. When a vehicle is stopped and subjected to an extensive search, such a warrantless search has been held to be valid as long as the officers conducting the search have reasonable or probable cause to believe before the search that they will find the instrumentality or evidence pertaining to a crime in the vehicle to be searched.

There could not have been, therefore, any finding of probable cause that the truck was being used for any illegal mining activities.

As we said in Aberca v. Ver,[13 the military is not to be restrained from pursuing their task or carrying out their mission with vigor. However, in doing so, care must be taken that constitutional and legal safeguards are not disregarded. In this case, there was absolutely no justification for the disregard of procedures for issuing search and seizure orders.

The Court of Appeals rightly concluded then that petitioners violated private respondents constitutional rights to due process and to security against unreasonable searches and seizure in ordering the seizure and impoundment of private respondents vehicle. For as the trial court held:[14

From all the above arguments and counter-arguments, the Court finds that the petitioners do not seriously dispute that the private respondents were, indeed, deprived of the use of their Isuzu ELF Truck when the private respondents foreman and the driver of the truck were told by SGT. Morales of the RUC-I that the same could not leave the mining area in Palasa-an, Mankayan, Benguet, per orders, and the same was parked in front of the building where the military team specifically assigned for that particular mission was staying. The arguments of the petitioners that there was no destraint and/or seizure because the keys of the truck were always in the possession of private respondents driver Kiyabang, that, on several occasions, the truck left the Palasa-an mining area, . . . and that the private respondents voluntarily and maliciously refused to use or enjoy their own truck . . . are facetious, to say the least, and deserve no serious consideration, in the light of the undisputed fact that the military men led by Sgt. Morales did not allow him to drive the truck out of the Palasa-an mining area, and on those occasions when he drove the truck out of the mining area, it was on missions of mercy and for purposes of the needs of the military personnel assigned in the Palasa-an mining area, and these, always with a soldier on board the truck. There was, therefore, a distraint and at least constructive seizure by the military men led by Sgt. Morales, as per orders, of the Isuzu Ilf truck of the private respondents, effectively depriving the latter of its use and enjoyment of their property.

Likewise, it is not disputed by the petitioners that Petitioner Obras request for the checking and apprehending of private respondents truck by Petitioner Dumpits RUC-I Command on June 26, 1985 (Exh. C) and the actual apprehension of said truck by Sgt. Morales and his men on July 1, 1985, were not preceded by and based on an investigation conducted by Petitioner Obra or his Office, but, instead, were based on the letter-complaint of Jeannette Grybos received by said Office also on June 26, 1985 (Exh. B). The petitioners claim that this did not violate the constitutional right of the private respondents to due process because of the aforequoted reasons completely ignores the fundamental rule that laws should not be so interpreted or implemented as to violate the provisions of the constitution. Specifically, Petitioner Obras interpretation of the law that grants him jurisdictional supervision and control over persons and things that have something to do with mines and mining (Sec. 6, P.D. No. 1281) authorizes him to distrain and seize private respondents truck, as he actually did through Sgt. Morales and his men, without prerequisite conditions such as a prior preliminary investigation of the case (taken from the above quotation from petitioners Memorandum), clearly violates the provision of the Bill of Rights on due process . . .

These findings and conclusions of the trial court, as affirmed by the Court of Appeals, are binding on this Court in the absence of any showing that they are contrary to the evidence in the record.[15

On the other hand, petitioner Dumpit claims that unlike the superior officers in Aberca, he had no knowledge of the acts of his subordinates since they did not file an after-incident report which was the standard procedure in these cases. He claims that all he did was to endorse the request to Major Densen, the Intelligence Officer of RUC-1, to coordinate with the BMGS and implement the order accordingly.

These contentions have no merit. It was sufficiently proved in this case that the seizure of the truck was effected upon the orders of petitioner Dumpit, acting on the request of petitioner Obra. Private respondents witnesses testified that when they asked the military men who stopped them upon their entry to the Mamakar mining site, the soldiers told them that they were acting upon the orders of the general in Camp Dangwa.[16 Sgt. Morales even issued a certification that the truck was seized as per orders.[17 Petitioner Dumpit himself testified, thus:

SOL. DAVID:

Q This letter refers to a complaint by Mrs. Jeannette M. Grybos, when you received that letter of Engr. Obra, what action, if any, did you take?

A On the letter of Director Obra dated June 26, 1985, whereby he was requesting assistance, the first thing I did is just to designate an action officer and my instruction is to coordinate with Director Obra and undertake necessary action.

. . . .

A I referred that letter when I received it from Director Obra to the Action Officer, the late Maj. Guillermo Densen.[18

ATTY. GALACE:

Q Major Densen did not go to the mining site of [Palasa-an]?

A My instruction was very clear, coordinate with Director Obra and take the necessary appropriate action, period. That was my only instruction to the late Maj. Densen.

Q You did not authorize Maj. Densen to enter the mining site and that all operations in the mining area will be stopped?

A I left it to the discretion of my subordinate, your Honor.[19

Art. 32 of the Civil Code makes liable any public officer who is directly or indirectly responsible for violating an individuals constitutional rights. The ruling in Aberca, which has been reiterated in subsequent cases,[20 is stated as follows:

. . .[T]he decisive factor in this case, in our view, is the language of Article 32. The law speaks of an officer or employee or person directly of indirectly responsible for the violation of the constitutional rights and liberties of another. Thus, it is not the actor alone (i.e., the one directly responsible) who must answer for damages under Article 32; the person indirectly responsible has also to answer for the damages or injury caused to the aggrieved party.

. . .While it would certainly be too nave to expect that violators of human rights would easily be deterred by the prospect of facing damage suits, it should nonetheless be made clear in no uncertain terms that Article 32 of the Civil Code makes the persons who are directly, as well as indirectly, responsible for the transgressions joint tortfeasors.[21

It was clear from petitioner Obras letter to petitioner Dumpit that assistance wa sought for the seizure of private respondents truck. Thus, when petitioner Dumpit endorsed the request to his subordinates for proper action, there could not have been any other forseeable consequence but the eventual seizure of the truck.

Petitioner Dumpit cannot evade responsibility for his acts by claiming that he merely performed a ministerial duty in ordering the implementation of petitioner Obras request. Otherwise, Art. 32 could easily be avoided by the mere plea that the officer concerned was only carrying out a ministerial duty. Petitioner Dumpit was a ranking military official. It is unseemly for him to claim that he was merely executing a ministerial act.

WHEREFORE, the petition is DISMISSED and the decision of the Court of Appeals is hereby AFFIRMED.

SO ORDERED. 7. Roan v. Gonzales, 145 SCRA 687 (1986) F: The challenged SW was issued by the resp. judge on 5/10/84. The petitioner''s house was searched 2 days later but none of the articles listed in the warrant was discovered. The officers conducting the search found 1 colt Magnum revolver & 18 live bullets w/c they confiscated. They are now the bases of the charge against the petitioner. RULING: Search warrant issued by resp. judge is hereby declared null and void and accordingly set aside. The petitioner claims that no depositions were taken by the resp. judge in accordance w/ Rule 126, Sec. 4 of the ROC, but this is not entirely true. Depositions were taken of the complainant''s 2 witnesses in addition to the affidavit executed by them. It is correct to say, however, that the complainant himself was not subjected to a similar interrogation. By his own accounts, all that resp. judge did was question Capt. Quillosa on the contents of his affidavit only "to ascertain among others, if he knew and understood the same," and only bec. "the application was not yet subscribed and sworn to." The suggestion is that he would not have asked any questions at all if the affidavit had already been completed when it was submitted to him. In any case, he did not ask his own searching questions. He limited himself to the contents of the affidavit. He did not take the applicant''s deposition in writing and attach them to the record, together w/ the affidavit presented to him. Such written deposition is necessary in order that the Judge may be able to properly determine the existence or non-existence of the probable cause, to hold liable for perjury the person giving it if it will be found later that his declarations are false. (Mata v. Bayona.) The applicant was asking for the issuance of the SW on the basis of mere hearsay and not of info. personally known to him. His application, standing alone, was insufficient to justify the issuance of the warrant sought. 8. G.R. No. 101124 May 17, 1993

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CARMELINA TABAR y CARMILOTES and ROMMEL ARRIESGADO y TABAR, accused.CARMELINA TABAR y CARMILOTES, accused-appellant.

The Solicitor General for plaintiff-appellee.

Public Attorney's Office for accused-appellant.

DAVIDE JR., J.:

Carmelina Tabar y Carmilotes and her nephew, Rommel Arriesgado y Tabar, of Tres de Abril, Punta Princesa, Cebu City, were charged with the violation of Section 4, Article II of R.A.No. 6425, as amended, in an Information filed by the Office of the City Fiscal of Cebu City with the Regional Trial Court of Cebu City on 9 February 1989, the accusatory portion of which reads a follows:

That on or about the 8th day of February 1989, at about 3:00 PM. in the City of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the said accused, conniving and confederating together and mutually helping each other, with deliberate intent, did then and there sell and deliver, without authority of law, Three (3) sticks of marijuana cigarettes, a (sic) prohibited drugs, to a person who posted himself as a buyer, in Viol. of Sec. 4, Art. 11, of RA 6425, as amended, otherwise known as the Dangerous Act of 1972. 1

The case was docketed as Criminal Case No. CBU-14863 and after it was raffled off to Branch 15 of the said court, the accused were forthwith arraigned. Carmelina entered a plea of not guilty while Rommel, then seventeen (17) years of age, with the conformity of the prosecution, entered a plea of guilty to the lesser offense of possession of marijuana under Section 8, Article II of R.A. No. 6425, as amended. 2 As a consequence of his plea, the trial court handed down on 24 April 1989 an Order which reads in part as follows:

Therefore this court being satisfied that the accused herein is the same Ramil Tabar described in Annex 1 (Certificate of Birth) of the said accused, and it appearing that he is still a minor (17 years), he is entitled to a suspended sentence of the penalty for possession of marijuana which is a jail term of six (6) years and one (1) day to twelve (12) years and a fine of Six Thousand (P6,000.00) pesos (Sec. 8 RA 6425 as amended of B.P. 179, March 2, 1982).

WHEREFORE, the accused Rommel Tabar y Arriesgado is hereby discharged on probation (Sec. 32 of RA 6425 as amended by B.P. 179) and committed to the custody of the Department of Social Welfare and Development, Cebu Regional Office (No. 7) until he reaches the age of majority, or otherwise finally discharged upon orders of this court pursuant to P.D. 603 and B.P. 179, but to be placed under the Supervision of the Dangerous Drugs Board, the alleged crime being drug related, and for a period of one (1) year from date hereof.

The Regional Director of the DSWD is hereby ordered to conduct and submit a case study of the accused minor to this court, within sixty days and to report on his conduct once every four months, to this court. 3

Thereafter, trial proceeded as against Carmelina alone. The prosecution presented Pfc. Josephus Trangia and Myra P. Arreola, a forensic analyst of the PC Crime Laboratory Service, as its witnesses. The testimony of Pfc. Raul Tumakay was ordered stricken out since he could not be cross-examined. The defense had only Carmelina as its witness.

On 22 December 1990, the trial court promulagated its decision, dated 17 December 1990, 4 finding Carmelina "guilty, beyond reasonable doubt, for (sic) violation of Section 4, Article II RA 6425, otherwise known as the Dangerous Drug Act of 1972 as amended by PD 1675" and sentencing her to "Reclusion Perpetua and to pay a fine of P20,000.00 for the act of selling and distributing marijuana." 5

The conviction is premised on the following findings of fact:

From the evidence which consists of the testimony of Pfc. Josephus Trangia, the court gathered that at about 3:00 P.M. of February 8, 1989, he was with Pfc. Romeo Cortes and Gualberto Gabales on a buy-bust operation for marijuana after receipt of information about marijuana pushers in Punta Princesa, Cebu City and that they had their informant go ahead of them after giving the P5.00 bill for him to purchase marijuana.

He continued saying that their informant stood in front of a shanty while they posted themselves at a distance of about 50 meters from the place where their informant was standing. And that they saw a young boy approached their informant and handed cigarettes to him who in turn handed the marked money to the young boy. Then, their informant gave them the pre-arranged signal of scratching his head with his right hand; that after the signal, he and his companions immediately approached the young boy and the informant introduced them as police officers. This young boy was about 16-17 years old, by the name of Rommel Arriesgado y Tabar. He had earlier pleaded guilty to the lesser offense of mere possession of marijuana and was, in fact, already convicted by this court. Upon being shown a P5.00 bill with the initials written thereon as: GDG-89 and bearing SL L F 637396, he identified the same bill as the one given to their informant and marked as Exh. "A" for the prosecution. He explained the initials GDG which stands for Gualberto G. Gabales, his team member. He further declared that after the pre-arranged signal from their informant, they immediately proceeded to the scene and were given three sticks of marijuana by their informant after buying the same from the boy, Rommel Arriesgado and that they proceeded to confiscate the P5.00 bill from the boy. At this juncture, he claimed that he observed

that after the transaction, the boy went inside the shanty and the moment he got out, he handed the three sticks of marijuana to the informant. In fact, he claimed that after the proceeding to the shanty, they met Carmelina Tabar, accused herein, and that Carmelina Tabar was holding a white pants from where they found other marijuana sticks in cigarette packs which they confiscated. That they brought Carmelina Tabar to Fuente Police Station for investigation. He claimed that there were 75 sticks of marijuana in the Hope Cigarette pack; 22 sticks of marijuana cigarettes in the Philip Morris pack and 99 sticks of marijuana in the Mark cigarette pack. He said that they also confiscated the pants, but only the marijuana sticks were submitted for testing to the PC Crime Laboratory. That pursuant to this requested analysis, Lieut. Fortunato Quijon of the Police issued a Certification of Field Test, Exh. "B" which showed that three sticks of handrolled cigarettes marked Rommel-89 were positive for marijuana. Shown the three packs of cigarettes distincly marked as Hope, Mark and Philip Morris, he identified the same as the ones confiscated from Carmelina Tabar. So did he identify the cream-colored pants he said they confiscated from Carmelina Tabar and which according to him was used to wrap marijuana sticks inside the pack. He finally told the court that this team was composed of Gualberto D. Gabales, Romeo Cortes, Pfc. Tumakay and himself.

On cross-examination, this witness affirmed that when he asked the boy, Rommel where he got the marijuana sticks, he was told he got it from his aunt, the accused herein. He further told the court that they arrested Carmelina Tabar later. When the young boy went inside, they presumed the marijuana came from inside the shanty and that when the accused Carmelina Tabar went out, suspicious-looking and pale and afraid to face them, they told her to stop from going left towards the houses and asked her to open the pants which revealed the three cigarette packs contaning marijuana. The witness candidly admitted they had no search warrant at the time they effected the arrest and confiscation.

From the testimonies of Mrs. Myrna Areola, Police Lieutenant, Forensic Analyst of the PC Crime Laboratory, it was established that the specimens submitted to her were positive of marijuana. She then identified Exh. "C", as her Chemistry Report C-038-89. She also identified her signature, Exh. "C-4" thereon and her findings "All are positive of Marijuana", Exh. "C-3"; the specimens submitted as Exh. "C-2" and the name of the subject, Carmelina Tabar as Exh. "C-1". She confirmed her findings on all handrolled cigarettes in all cigarette packs; Hope, Exh. "E-1" to "E-75"; Philip Morris pack, Exh. "F-1" to "F-22" and Mark cigarette pack, Exh. "G-1" to "G-99". She informed the court that the specimens were submitted to her by Pfc Gabales on February 11, 1989, at about 10:50 A.M., and that she examined the sticks one by one and handrolled them again. She also claimed that the police did not ask for a copy of her report and that this is the first time it is presented in court. She informed the court that she placed the specimens in her evidence store room, with keys, she herself kept. 6

The trial court discredited the bare denials of Carmelina and unfavorably considered against her an admission that she had been arrested before by the CANU for

possession of marijuana, was charged for the violation of Section 8, Article II of R.A. No. 6425 in Criminal Case No. CBU-8573, was convicted therein, but is now on probation. 7 It further considered against her an allegedly very damaging admission, thus:

She made a very damaging admission to the court when the Presiding Judge asked her whether it is not true that she kept on crying because she was caught again and she said, "Yes" and at which juncture she admitted to the court that she was serving probation for the same offense. 8

It then concluded that:

[A]ccused actually employed her nephew, Rommel Arriesgado to sell marijuana from her store and that she has been in that illicit business for quite sometime now. The evidence notwithstanding, talks in the community where the accused lives is rife with accusations (sic) that she is indeed engaged with members of the family, in the sale and distribution of prohibited drugs such as marijuana. Between the positive testimony of the arresting officers, who appear to be more credible than the accused's worthless and untrustworthy denials, the court gives credence to the evidence of the prosecution. 9

Unable to accept the verdict, Carmelina filed her notice of appeal 10 manifesting therein that she is appealing from the decision to the Court of Appeals. In its Order of 27 February 1991, 11 the trial court gave due course to the appeal and directed the clerk of court "to submit all the records, evidences (sic) and trancripts of this proceeding to the Hon. Court of Appeals, for proper disposition." Considering that the penalty imposed is reclusion perpetua, the Court of Appeals transmitted to this Court the records of the case on 12 August 1991. 12 In the Resolution of 11 September 1991, this Court accepted the appeal.

In her Appellant's Brief, 13 Carmelina, hereinafter referred to as the appellant, imputes upon the trial court the commission of the following errors in the appealed decision:

I.

. . . IN CONVICTING ACCUSED-APPELLANTS (sic) OF VIOLATION OF SECTION 4, ARTICLE II, REPUBLIC ACT 6425 AS AMENDED WHEN THE EVIDENCE DOES NOT WARRANT IT.

II.

. . . IN ADMITTING EVIDENCE SEIZED WITHOUT ANY SEARCH WARRANT. 14

As to the first assigned error, the appellant claims that the prosecution presented no evidence that she sold marijuana and since there exists no convincing, positive and conclusive proof of conspiracy between her and her co-accused, Rommel Arriesgado, she cannot be held liable for violation of Section 4, Article II of R.A. No. 6425, as amended.

In support of the second assigned error, the appellant maintains that the marijuana cigarettes seized from her are inadmissible in evidence because they were obtained in violation of the constitutional guarantee against unreasonable search and seizure.

After a careful perusal of the records and evaluation of the evidence, this Court is inclined to agree with the appellant that she should not be convicted under Section 4, Article II of R.A. No, 6425. We rule, however, that she is liable under Section 8, Article II of the said Act. Her conviction by the trial court under Section 4 is primarily based on its conclusion that the appellant "actually employed her nephew Rommel Arriesgado to sell marijuana from her store and that she had been in that illicit business for quite sometime now." This conclusion is based on the trial court's sweeping statement that "talks in the community where the accused lives is rife with accusations that she is indeed engaged with members of the family, in the sale and distribution of prohibited drugs such as marijuana." We find no evidence on record to sustain this charge. It may thus be said that such a conclusion is not based on established facts but on "talks in the community." If indeed such was the fact, it would not have been difficult for the prosecution to provide the court with overwhelming evidence. Yet, it presented only Pat. Trangia who, rather unfortunately, did not even testify or volunteer information that the main target of the busy-bust operation was the appellant. He did not also disclose in his testimony that the appellant was among the reported "pushers" in Punta Princesa, Cebu City. It may be recalled that the buy-bust operation on 8 February 1989 was conducted because, as he alleged:

A.

Before that time we have already received information from the community of

Punta Princesa regarding marijuana pushers in that place. 15

Nevertheless, the prosecutor who conducted the direct-examination of Trangia did not ask further as to identity of the pushers such that it was not proven that the appellant was one of them. The Solicitor General, however, maintains that there was conspiracy, established by circumstancial evidence, between accused Rommel Arriesgado who was caught in flagrante selling three (3) sticks of handrolled marijuana to the informant and accepting the marked money. We are not persuaded since the evidence for the prosecution does not show that (a) the appellant was in the mind of the members of the team when they planned the buy-bust operation and when they carried out such plan, (b) the three (3) sticks of handrolled marijuana came from the appellant, and (c) the appellant used Rommel as her agent to sell the three (3) sticks to the informant. Moreover, if indeed the prosecution truly believed that such conspiracy existed, it should not have willingly given its conformity to Rommel's plea to the lesser offense of illegal possession of prohibited drugs under Section 8, Article II of R.A. No. 6425, as amended. Having been caught in flagrante for selling marijuana, it was not difficult to prove Rommel's culpability under Section 4, Article II of the Act. Yet it readily consented to his offer to plead guilty to the said lesser offense.

It was, however, established beyond any shadow of doubt and, therefore, with moral certainty, that the appellant kept in her possession handrolled sticks of marijuana placed in empty Hope, Philip Morris and Mark cigarrette packs. 16 She does not have any authority to possess them. She may have acquired them with the intention to sell them for profit; but without proof of sale, she cannot be held liable under Section 4, Article II of the Dangerous Drugs Act. For such possession, her liability is covered by Section 8 of the said Article which penalizes possession or use of prohibited drugs. The last paragraph thereof reads:

xxx

xxx

xxx

The penalty of the imprisonment ranging from six years and one day to twelve years and a fine ranging from six thousand to twelve thousand pesos shall be imposed upon any person who, unless authorized by law, shall possess or use of Indian hemp.

Indian hemp is otherwise known as Marijuana. 17

Appellant, therefore, may specifically be penalized under the aforesaid last paragraph of Section 8, Article II of the Act. Applying the Indeterminate Sentence Law, 18 the penalty of eight (8) years as Minimum to twelve (12) years as Maximum and a fine of P10,000.00 may then be imposed upon her.

The second assigned error is without merit. The evidence for the prosecution discloses that the appellant placed the packs of marijuana sticks under the rolled pair of pants which she was then carrying at the time she hurriedly left her shanty after noticing the arrest of Rommel. When she was asked to spread it out, which she voluntary did, the package containing the packs of marijuana sticks were thus exposed in plain view to the member of the team. A crime was thus committed in the presence of the policemen. Pursuant to Section 5, Rule 113 and Section 12 Rule 126 of the Revised Rules of Court, she could lawfully be arrested and searched for anything which may be used as proof of the commission of an offense without the corresponding arrest and search warrants. Her own counsel on cross-examination of prosecution witness Josephus Trangia further obtained a affirmation of these facts, thus:

Q.

You mean to say that when you saw Carmelina Tabar allegely went (sic) out of

the shanty you only saw the white long pants and not the cigarettes?

A.

Only the pants.

Q.

Did you say that in order to find out what was the contents of the pants, you

asked her to open the pants. Isn't it?

A.

Yes.

Q.

Now, after she opened it, what did you see?

A.

Three (3) packs of marijuana cigarettes.

Q.

Who among you in your team approached Carmelina Tabar?

A.

It was PFC Raul Tumakay. 19

Even assuming ex gratia argumenti that the seach and seizure were without a warrant, the appellant had effectively waived her constitutional right relative thereto by voluntarily submitting to the seach and seizure. In People vs. Malasugui, 20 this Court ruled:

When one voluntarily submits to a search and consent to have it made of his person or premises, he is precluded from later complaining thereof (Cooley, Constitutional Limitations, 8th ed., vol. I, pages 631). The right to be secure from unreasonable seach may, like every right, be waived and such waiver may be made either expressly or impliedly.

The exclusionary rule relied upon by the appellant does not provide her safe refuge.

Before We close this case, a final observation for the guidance of trial judges must be made.

For the violation of Section 4, Article II of R. A. No. 6425, as amended, the trial court imposed the penalty of reclusion perpetua. The penalty provided for therein is "life imprisonment to death and a fine ranging from twenty thousand to thirty thousand pesos." In view of Section 19(1), Article III of the 1987 Constitution which prohibits the imposition of the death penalty, the maximum penalty then imposable thereunder would only be life imprisonment. Life imprisonment, however, is not synonymous with reclusion perpetua. We have reiterated this time and again 21 and admonished judges to employ the proper legal terminology in the imposition of imprisonment penalties because of their different accompanying legal accessories and effects. 22

IN THE LIGHT OF THE FOREGOING, judgment is hereby rendered modifying the challenged Decision of Branch 15 of the Regional Trial Court of Cebu in Criminal Case No. CBU-14863 dated 17 December 1990 and, as modified, finding appellant CARMELINA TABAR y CARMILOTES guilty beyond reasonable doubt of illegal possession of marijuana under Section 8, Article II of R. A. No. 6425, otherwise known as the Dangerous Drugs Act of 1972, as amended, and, applying the Inderterminate Sentence Law, she is sentenced to suffer imprisonment of eight (8) years as minimum to twelve (12) years as maximum and to pay a fine of Ten Thousand Pesos (P10,000.00).

Costs against the appellant.

SO ORDERED. 9. G.R. No. 104961 October 7, 1994

CONGRESSMAN FRANCISCO B. ANIAG, JR., petitioner, vs. COMMISSION ON ELECTIONS and DEPARTMENT OF JUSTICE SPECIAL TASK FORCE, respondents.

Ronolfo S. Pasamba for petitioner.

BELLOSILLO, JR., J.:

PETITIONER assails in this petition (for declaratory relief, certiorari and prohibition) the following resolutions of the Commission on Elections: Resolution No. 2327 dated 26 December 1991 for being unconstitutional, and Resolution No. 92-0829 dated 6 April 1992 and Resolution No. 92-0999 dated 23 April 1992, for want of legal and factual bases.

The factual backdrop: In preparation for the synchronized national and local elections scheduled on 11 May 1992, the Commission on Elections (COMELEC) issued on 11 December 1991 Resolution No. 2323 otherwise referred to as the "Gun Ban," promulgating rules and regulations on bearing, carrying and transporting of firearms or other deadly weapons, on security personnel or bodyguards, on bearing arms by members of security agencies or police organizations, and organization or maintenance of reaction forces during the election period. 1 Subsequently, on 26 December 1991 COMELEC issued Resolution No. 2327 providing for the summary disqualification of candidates engaged in gunrunning, using and transporting of firearms, organizing special strike forces, and establishing spot checkpoints. 2

On 10 January 1992, pursuant to the "Gun Ban," Mr. Serapio P. Taccad, Sergeant-atArms, House of Representatives, wrote petitioner who was then Congressman of the 1st District of Bulacan requesting the return of the two (2) firearms 3 issued to him by the House of Representatives. Upon being advised of the request on 13 January 1992 by his staff, petitioner immediately instructed his driver, Ernesto Arellano, to pick up the firearms from petitioner's house at Valle Verde and return them to Congress.

Meanwhile, at about five o'clock in the afternoon of the same day, the Philippine

National Police (PNP) headed by Senior Superintendent Danilo Cordero set up a checkpoint outside the Batasan Complex some twenty (20) meters away from its entrance. About thirty minutes later, the policemen manning the outpost flagged down the car driven by Arellano as it approached the checkpoint. They searched the car and found the firearms neatly packed in their gun cases and placed in a bag in the trunk of the car. Arellano was then apprehended and detained. He explained that he was ordered by petitioner to get the firearms from the house and return them to Sergeant-at-Arms Taccad of the House of Representatives.

Thereafter, the police referred Arellano's case to the Office of the City Prosecutor for inquest. The referral did not include petitioner as among those charged with an election offense. On 15 January 1992, the City Prosecutor ordered the release of Arellano after finding the latter's sworn explanation meritorious. 4

On 28 January 1992, the City Prosecutor invited petitioner to shed light on the circumstances mentioned in Arellano's sworn explanation. Petitioner not only appeared at the preliminary investigation to confirm Arellano's statement but also wrote the City Prosecutor urging him to exonerate Arellano. He explained that Arellano did not violate the firearms ban as he in fact was complying with it when apprehended by returning the firearms to Congress; and, that he was petitioner's driver, not a security officer nor a bodyguard. 5

On 6 March 1992, the Office of the City Prosecutor issued a resolution which, among other matters, recommended that the case against Arellano be dismissed and that the "unofficial" charge against petitioner be also dismissed. 6

Nevertheless, on 6 April 1992, upon recommendation of its Law Department, COMELEC issued Resolution No. 92-0829 directing the filing of information against petitioner and Arellano for violation of Sec. 261, par. (q), of B.P. Blg. 881 otherwise known as the Omnibus Election Code, in relation to Sec. 32 of R.A. No. 7166; 7 and petitioner to show cause why he should not be disqualified from running for an elective position, pursuant to COMELEC Resolution No. 2327, in relation to Sec. 32, 33 and 35 of R.A. 7166, and Sec. 52, par. (c), of B.P. Blg. 881. 8

On 13 April 1992, petitioner moved for reconsideration and to hold in abeyance the administrative proceedings as well as the filing of the information in court. 9 On 23 April 1992, the COMELEC denied petitioner's motion for reconsideration. 10 Hence, this recourse.

Petitioner questions the constitutionality of Resolution No. 2327. He argues that the rules and regulations of an administrative body must respect the limits defined by law; that the Omnibus Election Code provides for the disqualification of any person/candidate from running for or holding a public office, i.e., any person who has either been declared by competent authority as insane or incompetent or has been sentenced by final judgment for subversion, insurrection, rebellion or for any offense for which he has been sentenced to a penalty of more than eighteen months or for a crime involving moral turpitude; that gunrunning, using or transporting firearms or similar weapons and other acts mentioned in the resolution are not within the letter or spirit of the provisions of the Code; that the resolution did away with the requirement of final conviction before the commission of certain offenses; that instead, it created a presumption of guilt as a candidate may be disqualified from office in situations (a) where the criminal charge is still pending, (b) where there is no pending criminal case, and (c) where the accused has already been acquitted, all contrary to the requisite quantum of proof for one to be disqualified from running or holding public office under the Omnibus Election Code, i.e., proof beyond reasonable doubt. As a result, petitioner concludes, Resolution No. 2327 violates the fundamental law thus rendering it fatally defective.

But, the issue on the disqualification of petitioner from running in the 11 May 1992 synchronized elections was rendered moot when he lost his bid for a seat in Congress in the elections that ensued. Consequently, it is now futile to discuss the implications of the charge against him on his qualification to run for public office.

However, there still remains an important question to be resolved, i.e., whether he can be validly prosecuted for instructing his driver to return to the Sergeant-at-Arms of the House of Representatives the two firearms issued to him on the basis of the evidence gathered from the warrantless search of his car.

Petitioner strongly protests against the manner by which the PNP conducted the search. According to him, without a warrant and without informing the driver of his fundamental rights the policemen searched his car. The firearms were not tucked in the waist nor within the immediate reach of Arellano but were neatly packed in their gun cases and wrapped in a bag kept in the trunk of the car. Thus, the search of his car that yielded the evidence for the prosecution was clearly violative of Secs. 2 and 3, par. (2), Art. III, of the Constitution. 11

Petitioner further maintains that he was neither impleaded as party respondent in the preliminary investigation before the Office of the City Prosecutor nor included in the charge sheet. Consequently, making him a respondent in the criminal information would violate his constitutional right to due process.

Petitioner disputes the charge that he violated Sec. 33 of R.A. 7166, which prohibits any candidate for public office during the election period from employing or availing himself or engaging the services of security personnel or bodyguards since, admittedly, Arellano was not a security officer or bodyguard but a civilian employee assigned to him as driver by the House of Representatives. Specifically, petitioner further argues, Arellano was instructed to return to Congress, as he did, the firearms in compliance with the directive of its Sergeant-at-Arms pursuant to the "Gun Ban," thus, no law was in fact violated. 12

On 25 June 1992, we required COMELEC to file its own comment on the petition 13 upon manifestation of the Solicitor General that it could not take the position of COMELEC and prayed instead to be excused from filing the required comment. 14

COMELEC claims that petitioner is charged with violation of Sec. 261, par. (q), in relation to Sec. 263, of B.P. Blg. 881 which provides that "the principals, accomplices and accessories, as defined in the Revised Penal Code, shall be criminally liable for election offenses." It points out that it was upon petitioner's instruction that Arellano brought the firearms in question outside petitioner's residence, submitting that his right to be heard was not violated as he was invited by the City Prosecutor to explain the circumstances regarding Arellano's possession of the firearms. Petitioner also filed a sworn written explanation about the incident. Finally, COMELEC claims that violation of the "Gun Ban" is mala prohibita, hence, the intention of the offender is immaterial. 15

Be that as it may, we find no need to delve into the alleged constitutional infirmity of Resolution No. 2327 since this petition may be resolved without passing upon this particular issue. 16

As a rule, a valid search must be authorized by a search warrant duly issued by an appropriate authority. However, this is not absolute. Aside from a search incident to a lawful arrest, a warrantless search had been upheld in cases of moving vehicles and the seizure of evidence in plain view, 17 as well as the search conducted at police or military checkpoints which we declared are not illegal per se, and stressed that the warrantless search is not violative of the Constitution for as long as the vehicle is neither searched nor its occupants subjected to a body search, and the inspection of the vehicle is merely limited to a visual search. 18

Petitioner contends that the guns were not tucked in Arellano's waist nor placed within his reach, and that they were neatly packed in gun cases and placed inside a bag at the back of the car. Significantly, COMELEC did not rebut this claim. The records do not show that the manner by which the package was bundled led the PNP to suspect that it contained firearms. There was no mention either of any report regarding any nervous, suspicious or unnatural reaction from Arellano when the car was stopped and searched. Given these circumstances and relying on its visual observation, the PNP could not thoroughly search the car lawfully as well as the package without violating the constitutional injunction.

An extensive search without warrant could only be resorted to if the officers conducting the search had reasonable or probable cause to believe before the search that either the motorist was a law offender or that they would find the instrumentality or evidence pertaining to the commission of a crime in the vehicle to be searched. 19 The existence of probable cause justifying the warrantless search is determined by the facts of each case. 20 Thus, we upheld the validity of the warrantless search in situations where the smell of marijuana emanated from a plastic bag owned by the accused, or where the accused was acting suspiciously, and attempted to flee. 21

We also recognize the stop-and-search without warrant conducted by police officers on the basis of prior confidential information which were reasonably corroborated by other attendant matters, e.g., where a confidential report that a sizeable volume of marijuana would be transported along the route where the search was conducted and appellants were caught in flagrante delicto transporting drugs at the time of their arrest; 22 where apart from the intelligence information, there were reports by an undercover "deep penetration" agent that appellants were bringing prohibited drugs into the country; 23 where the information that a Caucasian coming from Sagada bringing prohibited drugs was strengthened by the conspicuous bulge in accused's waistline, and his suspicious failure to produce his passport and other identification papers; 24 where the physical appearance of the accused fitted the description given in the confidential information about a woman transporting marijuana; 25 where the accused carrying a bulging black leather bag were suspiciously quiet and nervous when queried about its contents; 26 or where the identity of the drug courier was already established by police authorities who received confidential information about the probable arrival of accused on board one of the vessels arriving in Dumaguete City. 27

In the case at bench, we find that the checkpoint was set up twenty (20) meters from the entrance to the Batasan Complex to enforce Resolution No. 2327. There was no evidence to show that the policemen were impelled to do so because of a confidential report leading them to reasonably believe that certain motorists matching the description furnished by their informant were engaged in gunrunning, transporting firearms or in organizing special strike forces. Nor, as

adverted to earlier, was there any indication from the package or behavior of Arellano that could have triggered the suspicion of the policemen. Absent such justifying circumstances specifically pointing to the culpability of petitioner and Arellano, the search could not be valid. The action then of the policemen unreasonably intruded into petitioner's privacy and the security of his property, in violation of Sec. 2, Art. III, of the Constitution. Consequently, the firearms obtained in violation of petitioner's right against warrantless search cannot be admitted for any purpose in any proceeding.

It may be argued that the seeming acquiescence of Arellano to the search constitutes an implied waiver of petitioner's right to question the reasonableness of the search of the vehicle and the seizure of the firearms.

While Resolution No. 2327 authorized the setting up of checkpoints, it however stressed that "guidelines shall be made to ensure that no infringement of civil and political rights results from the implementation of this authority," and that "the places and manner of setting up of checkpoints shall be determined in consultation with the Committee on Firearms Ban and Security Personnel created under Sec. 5, Resolution No. 2323." 28 The facts show that PNP installed the checkpoint at about five o'clock in the afternoon of 13 January 1992. The search was made soon thereafter, or thirty minutes later. It was not shown that news of impending checkpoints without necessarily giving their locations, and the reason for the same have been announced in the media to forewarn the citizens. Nor did the informal checkpoint that afternoon carry signs informing the public of the purpose of its operation. As a result, motorists passing that place did not have any inkling whatsoever about the reason behind the instant exercise. With the authorities in control to stop and search passing vehicles, the motorists did not have any choice but to submit to the PNP's scrutiny. Otherwise, any attempt to turnabout albeit innocent would raise suspicion and provide probable cause for the police to arrest the motorist and to conduct an extensive search of his vehicle.

In the case of petitioner, only his driver was at the car at that time it was stopped for inspection. As conceded by COMELEC, driver Arellano did not know the purpose of the checkpoint. In the face of fourteen (14) armed policemen conducting the operation, 29 driver Arellano being alone and a mere employee of petitioner could not have marshalled the strength and the courage to protest against the extensive search conducted in the vehicle. In such scenario, the "implied acquiescence," if there was any, could not be more than a mere passive conformity on Arellano's part to the search, and "consent" given under intimidating or coercive circumstances is no consent within the purview of the constitutional guaranty.

Moreover, the manner by which COMELEC proceeded against petitioner runs counter to the due process clause of the Constitution. The facts show that petitioner was not

among those charged by the PNP with violation of the Omnibus Election Code. Nor was he subjected by the City Prosecutor to a preliminary investigation for such offense. The non-disclosure by the City Prosecutor to the petitioner that he was a respondent in the preliminary investigation is violative of due process which requires that the procedure established by law should be obeyed. 30

COMELEC argues that petitioner was given the change to be heard because he was invited to enlighten the City Prosecutor regarding the circumstances leading to the arrest of his driver, and that petitioner in fact submitted a sworn letter of explanation regarding the incident. This does not satisfy the requirement of due process the essence of which is the reasonable opportunity to be heard and to submit any evidence one may have in support of his defense. 31 Due process guarantees the observance of both substantive and procedural rights, whatever the source of such rights, be it the Constitution itself or only a statute or a rule of court. 32 In Go v. Court of Appeals, 33 we held that

While the right to preliminary investigation is statutory rather than constitutional in its fundament, since it has in fact been established by statute, it is a component part of due process in criminal justice. The right to have a preliminary investigation conducted before being bound over to trial for a criminal offense and hence formally at risk of incarceration or some other penalty is not a mere formal or technical right; it is a substantive right . . . . [T]he right to an opportunity to avoid a process painful to anyone save, perhaps, to hardened criminals is a valuable right. To deny petitioner's claim to a preliminary investigation would be to deprive him of the full measure of his right to due process.

Apparently, petitioner was merely invited during the preliminary investigation of Arellano to corroborate the latter's explanation. Petitioner then was made to believe that he was not a party respondent in the case, so that his written explanation on the incident was only intended to exculpate Arellano, not petitioner himself. Hence, it cannot be seriously contended that petitioner was fully given the opportunity to meet the accusation against him as he was not apprised that he was himself a respondent when he appeared before the City Prosecutor.

Finally, it must be pointed out too that petitioner's filing of a motion for reconsideration with COMELEC cannot be considered as a waiver of his claim to a separate preliminary investigation for himself. The motion itself expresses petitioner's vigorous insistence on his right. Petitioner's protestation started as soon as he learned of his inclusion in the charge, and did not ease up even after COMELEC's denial of his motion for reconsideration. This is understandably so since the prohibition against carrying firearms bears the penalty of imprisonment of not less than one (1) year nor more than six (6) years without probation and with

disqualification from holding public office, and deprivation of the right to suffrage. Against such strong stance, petitioner clearly did not waive his right to a preliminary investigation.

WHEREFORE, the instant petition is GRANTED. The warrantless search conducted by the Philippine National Police on 13 January 1992 is declared illegal and the firearms seized during the warrantless search cannot be used as evidence in any proceeding against petitioner. Consequently, COMELEC Resolution No. 92-0829 dated 6 April 1992 being violative of the Constitution is SET ASIDE.

The temporary restraining order we issued on 5 May 1992 is made permanent.

SO ORDERED.

Narvasa, C.J., Romero, Quiason, Puno, Kapunan and Mendoza, JJ., concur.

Feliciano, Padilla and Bidin, JJ., are on leave.

Separate Opinions

CRUZ, J., concurring:

I concur, and reiterate my objections to checkpoints in general as originally

expressed in my dissent in the case of Valmonte v. De Villa, 178 SCRA 217, where I said:

The sweeping statements in the majority opinion are as dangerous as the checkpoints it would sustain and fraught with serious threats to individual liberty. The bland declaration that individual rights must yield to the demands of national security ignores the fact that the Bill of Rights was intended precisely to limit the authority of the State even if asserted on the ground of national security. What is worse is that the searches and seizures are peremptorily pronounced to be reasonable even without proof of probable cause and much less the required warrant. The improbable excuse is that they are aimed at "establishing an effective territorial defense, maintaining peace and order, and providing an atmosphere conducive to the social, economic and political development of the National Capital Region." For these purposes, every individual may be stopped and searched at random and at any time simply because he excites the suspicion, caprice, hostility or malice of the officers manning the checkpoints, on pain of arrest or worse, even being shot to death, if he resists.

xxx

xxx

xxx

Unless we are vigilant of our rights, we may find ourselves back to the dark era of the truncheon and the barbed wire, with the Court itself a captive of its own complaisance and sitting at the death-bed of liberty.

I hope the colleagues I have behind on my retirement will reconsider the stand of the Court on checkpoints and finally dismantle them altogether as an affront to individual liberty.

VITUG, J., concurring:

The ultimate hypothesis of sound governance is not might but the willingness of the governed to accept and subordinate themselves to authority.

When our people gave their consent to the fundamental law of the land, they did not renounce but, to the contrary, reserved for themselves certain rights that they held sacred and inviolable.

One such right is the privilege to be so secured "in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose." Their sole conceded proviso to this rule is when a search warrant or a warrant of arrest is lawfully issued. There are, to be sure, known exceptions, predicated on necessity and justified by good reasons, when warrantless searches and seizures are allowed. It is in this context that I appreciate the ratio decidendi of the Court in Valmonte vs. De Villa (178 SCRA 211). In giving its imprimatur to the installation of checkpoints, the Court clearly has based its decision on the existence at the time of what has been so described as an "abnormal" situation that then prevailed. Evidently, the Court did not have the intention to have its ruling continue to apply to less aberrant circumstances than previously obtaining.

The question has been asked: Between the security of the State and its due preservation, on the one hand, and the constitutionally-guaranteed right of an individual, on the other hand, which should be held to prevail? There is no choice to my mind not for any other reason than because there is, in the first place, utterly no need to make a choice. The two are not incompatible; neither are they necessarily opposed to each other. Both can be preserved; indeed, the vitality of one is the strength of the other.

There should be ways to curb the ills of society so severe as they might seem. A disregard of constitutional mandates or an abuse on the citizenry, I am most certain, is not the answer. It might pay to listen to the words of Mr. Justice Isagani A. Cruz when he said, "(u)nless we are vigilant of our rights, we may find ourselves back to the dark era of the truncheon and the barbed wire, with the Court itself a captive of its own complaisance and sitting at the death-bed of liberty."

It is a welcome note that in the subsequent case of Bagalihog vs. Fernandez (198 SCRA 614), the Court has expressed:

This guaranty is one of the greatest of individual liberties and was already recognized even during the days of the absolute monarchies, when the king could do no wrong. On this right, Cooley wrote: "Awe surrounded and majesty clothed the King, but the humblest subject might shut the door of his cottage against him and defend from intrusion that privacy which was as sacred as the kingly prerogatives.

The provision protects not only those who appear to be innocent but also those who appear to be guilty but are nevertheless to be presumed innocent until the contrary is proved. The mere fact that in the private respondent's view the crime involved is "heinous" and the victim was "a man of consequence" did not authorize disregard of the constitutional guaranty. Neither did "superior orders" condone the omission for they could not in any case be superior to the Constitution.

While it gives me great comfort to concur with my esteemed colleague, Mr. Justice Josue N. Bellosillo, in his ponencia, I would express, nonetheless, the humble view that even on the above constitutional aspect, the petition could rightly be granted. REGALADO, J., concurring and dissenting: I join Mr. Justice Davide, Jr. in his opinion wherein he concurs with the majority ruling that with respect to petitioner Aniag, Resolution No. 92-0829 of respondent commission should be set aside, not because of an unconstitutional warrantless search but by reason of the fact that he was not actually charged as a respondent in the preliminary investigation of the case. With regard to petitioner's driver, Ernesto Arellano, although he was not impleaded as a co-petitioner in the present recourse, the nullification of said Resolution No. 920829 necessarily applies to him and redounds to his benefit. To the extent, therefore, that the majority opinion thereby reinstate the resolution of the Office of the City Prosecutor dismissing the charge against Arellano, I concur in that result. However, even as a simple matter of consistency but more in point of law, I dissent from the rationale submitted therefor, that is, that Arellano was the victim of an unlawful search without a warrant. The pertinent facts stated by the majority readily yield the conclusion that there was consent on the part of Arellano to the search of the car then under his control, particularly of its baggage compartment where the firearms were discovered. As held in People vs. Excela, et al., 1 consent to a search may be given expressly or impliedly, and as early as People vs. Malasugui, 2 the settled rule is that a search may be validly conducted without a warrant if the person searched consented thereto. I would prefer to sustain the exoneration of Ernesto Arellano on the justifying circumstance that he was acting in obedience to what he innocently believed to be a lawful order of a superior, that is, the instructions of his employer, petitioner Aniag, who was himself acting upon and in compliance with Resolution No. 2323 of respondent commission which was implemented by the Sergeant-at-Arms of the House of Representatives. The said justifying circumstance provided in paragraph 6, Article 11 of the Revised Penal Code can be given suppletory effect to special laws like B.P. Blg. 881 and R.A. No. 7166 by force of Article 10 of the same Code. There is no prohibition therefor in the cited provisions of B.P. Blg. 881 in relation to R.A. No. 7166, nor is there any legal impossibility for such suppletory application whether by express provision or by necessary implication. And even if the order of petitioner Aniag may be considered as illegal, Arellano acted thereon in good faith 3 and under a mistake of fact as to its legality, hence his exculpation is ineludibly dictated. Ignorantia facti excusat. It being evident from the very records and the factual findings adopted in the majority opinion that no error was committed by the Office of the City Prosecutor in dismissing the charge against Ernesto Arellano for lack of sufficient grounds to engender a well founded belief that a crime had been committed and that he was probably guilty thereof, 4 respondent commission acted with grave abuse of discretion in arriving at a contrary conclusion and directing his prosecution in its Resolution No. 92-0829.

DAVIDE, JR., J., concurring and dissenting: I regret that I can concur only in the result, viz., the granting of the petition. Considering the specific issues raised by the petitioner which, as stated in the exordium of the majority opinion, are whether (a) COMELEC Resolution No. 2327, dated 26 December 1991, is unconstitutional, and (b) COMELEC Resolutions No. 920829, dated 6 April 1992, and No. 92-0999, dated 23 April 1992, have legal and factual bases, I am unable to agree with the specific disposition declaring (a) illegal the warrantless search conducted by the Philippine National Police (PNP) on 13 January 1992, (b) inadmissible in evidence in any proceeding against the petitioner the firearms seized during such warrantless search, and (c) unconstitutional COMELEC Resolution No. 92-0829. 1. Having declined to rule on the constitutionality of Resolution

No. 2327 because "this petition may be resolved without passing upon this particular issue" (first paragraph, page 10, Ponencia), this Court may no longer inquire into the constitutionality of the spot checkpoints authorized to be established thereunder. And whether the warrantless search conducted by the PNP at the checkpoint was valid, it being assumed that it would have been, provided there existed a probable cause therefor, is a question of fact whose presentation in this case is either procedurally premature, or one which this Court cannot, with definiteness, resolve considering the obvious paucity of the facts before it. The most the majority opinion can state is that "[t]here was no evidence to show that the police were impelled to do so because of a confidential report leading them to reasonably believe that certain motorists matching the description furnished by their informant were engaged in gunrunning, transporting firearms or in organizing special strike forces. Nor, as adverted to earlier, was there any indication from the package or behavior of Arellano that could have triggered the suspicion of the policemen." Nothing more could be expected at this stage since the records of the proceedings conducted by the Office of the City Prosecutor and the COMELEC are not before this Court. A declaration of invalidity of the warrantless search and of the inadmissibility in evidence of the firearms seized would thus be premature. It may additionally be relevant to state that the search was not in connection with the crime of illegal possession of firearms, which would have been factually and legally baseless since the firearms involved were licensed and were duly issued to the petitioner by the House of Representatives, but for the violation of the gun ban which was validly decreed by the COMELEC pursuant to its constitutional power to enforce and administer all laws and regulations relative to the conduct of elections, plebiscite, initiative, referendum; and recall (Section 2(1), Article IX-C, 1987 Constitution), its statutory authority to have exclusive charge of the enforcement and administration of all laws relative to the conduct of elections for the purpose of ensuring free, orderly, and honest elections (Section 52, Omnibus Election Code), and its statutory authority to promulgate rules and regulations implementing the provisions of the Omnibus Election Code or other laws which the COMELEC is required to enforce and administer (Section 52(c), Id.; Section 35, R.A. No. 7166), in

relation to paragraph (q), Section 261 of the Omnibus Election Code which prohibits the carrying of firearms outside the residence or place of business during the election period unless authorized in writing by the COMELEC, and Section 32 of R.A. No. 7166 which prohibits any person from bearing, carrying, or transporting firearms or other deadly weapons in public places, including any building, street, park, private vehicle, or public conveyance, even if such person is licensed to possess or carry the same during the election period, unless authorized in writing by the COMELEC. In this case, the petitioner himself admits that on 10 January 1992 he was requested by the Sergeant-at-Arms of the House of Representatives to return the two firearms issued to him, and that on 13 January 1992, he instructed his driver, Ernesto Arellano, to pick up the firearms from his (petitioner's) house at Valle Verde and to return them to the House of Representatives. That day was already within the election period, which commenced the day earlier pursuant to COMELEC Resolution No. 2314 (In The Matter of Fixing The Schedule of Activities in Connection With the Elections of National and Local Officials on May 11, 1992), promulgated on 20 November 1991. Considering then that the offense for which he was to be charged was for the violation of paragraph (q), Section 261 of the Omnibus Election Code, in relation to Section 32 of R.A. No. 7166, which, in view of his aforesaid admissions, renders unnecessary the offer in evidence of the seized firearms, I fail to grasp the rationale of a ruling on the admissibility in evidence of the firearms. 2. COMELEC Resolution No. 92-0829, dated 6 April 1992, should not be set aside

on the ground of unconstitutionality. It simply directed the filing of an information against the petitioner and Arellano for the violation of paragraph (q), Section 261 of the Omnibus Election Code, in relation to Section 32 of R.A. No. 7166, and directed the petitioner to show cause why he should not be disqualified from running for an elective position, pursuant to COMELEC Resolution No. 2327, in relation to Sections 32, 33, and 35 of R.A. No. 7166 and paragraph (c), Section 52 of the Omnibus Election Code. Insofar as Arellano is concerned, he is not a petitioner in this case. Moreover, as to him, the resolution was nothing more than a disapproval of the recommendation of the Office of the City Prosecutor to dismiss the complaint against him. As against the petitioner, there was no denial of due process because the petitioner was later heard on his motion for reconsideration. Moreover, the right of an accused to a preliminary investigation is not a creation of the Constitution; its origin is statutory (Kilusang Bayan sa Paglilingkod ng mga Magtitinda ng Bagong Pamilihang Bayan ng Muntinglupa, Inc. vs. Dominguez, 205 SCRA 92 [1992]). The fatal flaw of Resolution No. 92-0829 lies in its directive to file the information against the petitioner despite the fact that he was never formally charged before the Office of the City Prosecutor. There was only an "'unofficial' charge imputed against" him. The COMELEC then acted with grave abuse of discretion amounting to want or excess of jurisdiction. I vote then to grant the petition, but solely on the ground that the COMELEC acted with grave abuse of discretion in directing the filing of an information against the petitioner for the violation of paragraph (q), Section 261 of the Omnibus Election Code, in relation to Section 32 of R.A. No. 7166.

Melo, J., concurs. # Separate Opinions CRUZ, J., concurring: I concur, and reiterate my objections to checkpoints in general as originally expressed in my dissent in the case of Valmonte v. De Villa, 178 SCRA 217, where I said: The sweeping statements in the majority opinion are as dangerous as the checkpoints it would sustain and fraught with serious threats to individual liberty. The bland declaration that individual rights must yield to the demands of national security ignores the fact that the Bill of Rights was intended precisely to limit the authority of the State even if asserted on the ground of national security. What is worse is that the searches and seizures are peremptorily pronounced to be reasonable even without proof of probable cause and much less the required warrant. The improbable excuse is that they are aimed at "establishing an effective territorial defense, maintaining peace and order, and providing an atmosphere conducive to the social, economic and political development of the National Capital Region." For these purposes, every individual may be stopped and searched at random and at any time simply because he excites the suspicion, caprice, hostility or malice of the officers manning the checkpoints, on pain of arrest or worse, even being shot to death, if he resists. Unless we are vigilant of our rights, we may find ourselves back to the dark era of the truncheon and the barbed wire, with the Court itself a captive of its own complaisance and sitting at the death-bed of liberty. I hope the colleagues I have behind on my retirement will reconsider the stand of the Court on checkpoints and finally dismantle them altogether as an affront to individual liberty. VITUG, J., concurring: The ultimate hypothesis of sound governance is not might but the willingness of the governed to accept and subordinate themselves to authority. When our people gave their consent to the fundamental law of the land, they did not renounce but, to the contrary, reserved for themselves certain rights that they held sacred and inviolable. One such right is the privilege to be so secured "in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose." Their sole conceded proviso to this rule is when a search warrant or a warrant of arrest is lawfully issued. There are, to be sure, known exceptions, predicated on necessity and justified by good reasons, when warrantless searches and seizures are allowed. It is in this context that I appreciate the ratio decidendi of the Court in Valmonte vs. De Villa (178 SCRA 211). In giving its imprimatur to the installation of checkpoints, the Court clearly has based its decision on the existence at the time of what has been so described as an "abnormal" situation that then prevailed. Evidently, the Court did not have the intention to have its ruling continue

to apply to less aberrant circumstances than previously obtaining. The question has been asked: Between the security of the State and its due preservation, on the one hand, and the constitutionally-guaranteed right of an individual, on the other hand, which should be held to prevail? There is no choice to my mind not for any other reason than because there is, in the first place, utterly no need to make a choice. The two are not incompatible; neither are they necessarily opposed to each other. Both can be preserved; indeed, the vitality of one is the strength of the other. There should be ways to curb the ills of society so severe as they might seem. A disregard of constitutional mandates or an abuse on the citizenry, I am most certain, is not the answer. It might pay to listen to the words of Mr. Justice Isagani A. Cruz when he said, "(u)nless we are vigilant of our rights, we may find ourselves back to the dark era of the truncheon and the barbed wire, with the Court itself a captive of its own complaisance and sitting at the death-bed of liberty." It is a welcome note that in the subsequent case of Bagalihog vs. Fernandez (198 SCRA 614), the Court has expressed: This guaranty is one of the greatest of individual liberties and was already recognized even during the days of the absolute monarchies, when the king could do no wrong. On this right, Cooley wrote: "Awe surrounded and majesty clothed the King, but the humblest subject might shut the door of his cottage against him and defend from intrusion that privacy which was as sacred as the kingly prerogatives. The provision protects not only those who appear to be innocent but also those who appear to be guilty but are nevertheless to be presumed innocent until the contrary is proved. The mere fact that in the private respondent's view the crime involved is "heinous" and the victim was "a man of consequence" did not authorize disregard of the constitutional guaranty. Neither did "superior orders" condone the omission for they could not in any case be superior to the Constitution. While it gives me great comfort to concur with my esteemed colleague, Mr. Justice Josue N. Bellosillo, in his ponencia, I would express, nonetheless, the humble view that even on the above constitutional aspect, the petition could rightly be granted. REGALADO, J., concurring and dissenting I join Mr. Justice Davide, Jr. in his opinion wherein he concurs with the majority ruling that with respect to petitioner Aniag, Resolution No. 92-0829 of respondent commission should be set aside, not because of an unconstitutional warrantless search but by reason of the fact that he was not actually charged as a respondent in the preliminary investigation of the case. With regard to petitioner's driver, Ernesto Arellano, although he was not impleaded as a co-petitioner in the present recourse, the nullification of said Resolution No. 920829 necessarily applies to him and redounds to his benefit. To the extent, therefore, that the majority opinion thereby reinstate the resolution of the Office of the City Prosecutor dismissing the charge against Arellano, I concur in that result. However, even as a simple matter of consistency but more in point of law, I dissent

from the rationale submitted therefor, that is, that Arellano was the victim of an unlawful search without a warrant. The pertinent facts stated by the majority readily yield the conclusion that there was consent on the part of Arellano to the search of the car then under his control, particularly of its baggage compartment where the firearms were discovered. As held in People vs. Excela, et al., 1 consent to a search may be given expressly or impliedly, and as early as People vs. Malasugui, 2 the settled rule is that a search may be validly conducted without a warrant if the person searched consented thereto. I would prefer to sustain the exoneration of Ernesto Arellano on the justifying circumstance that he was acting in obedience to what he innocently believed to be a lawful order of a superior, that is, the instructions of his employer, petitioner Aniag, who was himself acting upon and in compliance with Resolution No. 2323 of respondent commission which was implemented by the Sergeant-at-Arms of the House of Representatives. The said justifying circumstance provided in paragraph 6, Article 11 of the Revised Penal Code can be given suppletory effect to special laws like B.P. Blg. 881 and R.A. No. 7166 by force of Article 10 of the same Code. There is no prohibition therefor in the cited provisions of B.P. Blg. 881 in relation to R.A. No. 7166, nor is there any legal impossibility for such suppletory application whether by express provision or by necessary implication. And even if the order of petitioner Aniag may be considered as illegal, Arellano acted thereon in good faith 3 and under a mistake of fact as to its legality, hence his exculpation is ineludibly dictated. Ignorantia facti excusat. It being evident from the very records and the factual findings adopted in the majority opinion that no error was committed by the Office of the City Prosecutor in dismissing the charge against Ernesto Arellano for lack of sufficient grounds to engender a well founded belief that a crime had been committed and that he was probably guilty thereof, 4 respondent commission acted with grave abuse of discretion in arriving at a contrary conclusion and directing his prosecution in its Resolution No. 92-0829. DAVIDE, JR., J., concurring and dissenting: I regret that I can concur only in the result, viz., the granting of the petition. Considering the specific issues raised by the petitioner which, as stated in the exordium of the majority opinion, are whether (a) COMELEC Resolution No. 2327, dated 26 December 1991, is unconstitutional, and (b) COMELEC Resolutions No. 920829, dated 6 April 1992, and No. 92-0999, dated 23 April 1992, have legal and factual bases, I am unable to agree with the specific disposition declaring (a) illegal the warrantless search conducted by the Philippine National Police (PNP) on 13 January 1992, (b) inadmissible in evidence in any proceeding against the petitioner the firearms seized during such warrantless search, and (c) unconstitutional COMELEC Resolution No. 92-0829. 1. Having declined to rule on the constitutionality of Resolution

No. 2327 because "this petition may be resolved without passing upon this particular issue" (first paragraph, page 10, Ponencia), this Court may no longer inquire into the constitutionality of the spot checkpoints authorized to be established thereunder. And whether the warrantless search conducted by the PNP at the checkpoint was valid, it being assumed that it would have been, provided there existed a probable cause therefor, is a question of fact whose presentation in this case is either procedurally premature, or one which this Court cannot, with definiteness, resolve considering the obvious paucity of the facts before it. The most the majority opinion can state is that "[t]here was no evidence to show that the police were impelled to do so because of a confidential report leading them to reasonably believe that certain motorists matching the description furnished by their informant were engaged in gunrunning, transporting firearms or in organizing special strike forces. Nor, as adverted to earlier, was there any indication from the package or behavior of Arellano that could have triggered the suspicion of the policemen." Nothing more could be expected at this stage since the records of the proceedings conducted by the Office of the City Prosecutor and the COMELEC are not before this Court. A declaration of invalidity of the warrantless search and of the inadmissibility in evidence of the firearms seized would thus be premature. It may additionally be relevant to state that the search was not in connection with the crime of illegal possession of firearms, which would have been factually and legally baseless since the firearms involved were licensed and were duly issued to the petitioner by the House of Representatives, but for the violation of the gun ban which was validly decreed by the COMELEC pursuant to its constitutional power to enforce and administer all laws and regulations relative to the conduct of elections, plebiscite, initiative, referendum; and recall (Section 2(1), Article IX-C, 1987 Constitution), its statutory authority to have exclusive charge of the enforcement and administration of all laws relative to the conduct of elections for the purpose of ensuring free, orderly, and honest elections (Section 52, Omnibus Election Code), and its statutory authority to promulgate rules and regulations implementing the provisions of the Omnibus Election Code or other laws which the COMELEC is required to enforce and administer (Section 52(c), Id.; Section 35, R.A. No. 7166), in relation to paragraph (q), Section 261 of the Omnibus Election Code which prohibits the carrying of firearms outside the residence or place of business during the election period unless authorized in writing by the COMELEC, and Section 32 of R.A. No. 7166 which prohibits any person from bearing, carrying, or transporting firearms or other deadly weapons in public places, including any building, street, park, private vehicle, or public conveyance, even if such person is licensed to possess or carry the same during the election period, unless authorized in writing by the COMELEC.

In this case, the petitioner himself admits that on 10 January 1992 he was requested by the Sergeant-at-Arms of the House of Representatives to return the two firearms issued to him, and that on 13 January 1992, he instructed his driver, Ernesto Arellano, to pick up the firearms from his (petitioner's) house at Valle Verde and to return them to the House of Representatives. That day was already within the election period, which commenced the day earlier pursuant to COMELEC Resolution No. 2314 (In The Matter of Fixing The Schedule of Activities in Connection With the Elections of National and Local Officials on May 11, 1992), promulgated on 20

November 1991. Considering then that the offense for which he was to be charged was for the violation of paragraph (q), Section 261 of the Omnibus Election Code, in relation to Section 32 of R.A. No. 7166, which, in view of his aforesaid admissions, renders unnecessary the offer in evidence of the seized firearms, I fail to grasp the rationale of a ruling on the admissibility in evidence of the firearms. 2. COMELEC Resolution No. 92-0829, dated 6 April 1992, should not be set aside

on the ground of unconstitutionality. It simply directed the filing of an information against the petitioner and Arellano for the violation of paragraph (q), Section 261 of the Omnibus Election Code, in relation to Section 32 of R.A. No. 7166, and directed the petitioner to show cause why he should not be disqualified from running for an elective position, pursuant to COMELEC Resolution No. 2327, in relation to Sections 32, 33, and 35 of R.A. No. 7166 and paragraph (c), Section 52 of the Omnibus Election Code. Insofar as Arellano is concerned, he is not a petitioner in this case. Moreover, as to him, the resolution was nothing more than a disapproval of the recommendation of the Office of the City Prosecutor to dismiss the complaint against him. As against the petitioner, there was no denial of due process because the petitioner was later heard on his motion for reconsideration. Moreover, the right of an accused to a preliminary investigation is not a creation of the Constitution; its origin is statutory (Kilusang Bayan sa Paglilingkod ng mga Magtitinda ng Bagong Pamilihang Bayan ng Muntinglupa, Inc. vs. Dominguez, 205 SCRA 92 [1992]). The fatal flaw of Resolution No. 92-0829 lies in its directive to file the information against the petitioner despite the fact that he was never formally charged before the Office of the City Prosecutor. There was only an "'unofficial' charge imputed against" him. The COMELEC then acted with grave abuse of discretion amounting to want or excess of jurisdiction. I vote then to grant the petition, but solely on the ground that the COMELEC acted with grave abuse of discretion in directing the filing of an information against the petitioner for the violation of paragraph (q), Section 261 of the Omnibus Election Code, in relation to Section 32 of R.A. No. 7166. Melo, J., concurs.