UPDATED SPECIAL PENAL LAWS

By: JUDGE OSCAR B. PIMENTEL Regional Trial Cour ! Bran"# $%&! Ma'a i Ci y

INDETERMINATE SENTENCE LAW (Act No. 4103 as amended by Act No. 4225)
W(EN AN ACCUSED IS SENTENCED TO RECLUSION PERPETUA! (E IS NOT ENTITLED TO T(E APPLICATION O) T(E INDETERMINATE SENTENCE LAW

Accused-appellant cannot avail of the benefits of the Indeterminate Sentence Law because Indeterminate Sentence Law does not apply to persons convicted of offenses punishable with reclusion perpetua.
(People v. Aquino; ! "#$%&'( )an. "'( *%+,

APPLICATION O) INDETERMINATE SENTENCE LAW E*PLAINED

In the case of People vs. Gabres( the -ourt has had occasion to so state that .
/0nder the Indeterminate Sentence Law( the ma1imum term of the penalty shall be 2that which( in view of the attendin3 circumstances( could be properly imposed2 under the !evised Penal -ode( and the minimum shall be within the ran3e of the penalty ne1t lower to that prescribed2 for the offense. 4he penalty ne1t lower should be based on the penalty prescribed by the -ode for the offense( without first considerin3 any modifyin3 circumstance attendant to the commission of the crime. 4he determination of the minimum penalty is left by law to the sound discretion of the court and it can be anywhere within the ran3e of the penalty ne1t lower without any reference to the periods into which it mi3ht be subdivided. 4he modifyin3 circumstances are considered only in the imposition of the ma1imum term of the indeterminate sentence. /4he fact that the amounts involved in the instant case e1ceed P##(&&&.&& should not be considered in the initial determination of the indeterminate penalty; instead( the matter should be so ta5en as analo3ous to modifyin3 circumstances in the imposition of the ma1imum term of the full indeterminate sentence. 4his interpretation of the law accords with the rule that penal laws should be construed in favor of the accused. Since the penalty prescribed by law for the estafa char3e a3ainst accused-appellant is prision correccional ma1imum to prision mayor minimum( the penalty ne1t lower would then be

prision correccional minimum to medium. 4hus( the minimum term of the indeterminate sentence should be anywhere within si1 (', months and one (", day to four (6, years and two (#, months . . ./
(People v. Saley; ! "#""7%( )uly #( *%+,

INDETERMINATE SENTENCE LAW+ APPLICABLE ALSO IN DRUG CASES:

4he final query is whether or not the Indeterminate Sentence Law is applicable to the case now before us. Apparently it does( since dru3 offenses are not included in nor has appellant committed any act which would put him within the e1ceptions to said law and the penalty to be imposed does not involve reclusion perpetua or death( provided( of course( that the penalty as ultimately resolved will e1ceed one year of imprisonment. 4he more important aspect( however( is how the indeterminate sentence shall be ascertained. It is true that Section " of said law( after providin3 for indeterminate sentence for an offense under the !evised Penal -ode( states that /if the offense is punished by any other law( the court shall sentence the accused to an indeterminate sentence( the ma1imum term of which shall not e1ceed the ma1imum fi1ed by said law and the minimum shall not be less than the minimum term prescribed by the same/ 8e hold that this quoted portion of the section indubitably refers to an offense under a special law wherein the penalty imposed was not ta5en from and is without reference to the !evised Penal -ode( as discussed in the precedin3 illustrations( such that it may be said that the /offense is punished/ under that law. 4here can be no sensible debate that the aforequoted rule on indeterminate sentence for offenses under special laws was necessary because of the nature of the former type of penalties under said laws which were not included or contemplated in the scale of penalties in Article 7" of the -ode( hence there could be no minimum /within the ran3e of the penalty ne1t lower to that prescribed by the -ode for the offense(/ as is the rule for felonies therein. In the illustrative e1amples of penalties in special laws hereinbefore provided( this rule applied( and would still apply( only to the first and last e1amples. 9urthermore( considerin3 the vinta3e of Act :o. 6"&; as earlier noted( this holdin3 is but an application and is <ustified under the rule of contemporanea expositio. !epublic Act :o. '6#$( as

now amended by !epublic Act :o. 7'$%( has unqualifiedly adopted the penalties under the !evised Penal -ode in their technical terms( hence with their technical si3nification and effects. In fact( for purposes of determinin3 the ma1imum of said sentence( we have applied the provisions of the amended Section #& of said law to arrive at prision correccional and Article '6 of the -ode to impose the same in the medium period. Such offense( althou3h provided for in a special law( is now in the effect punished by and under the !evised Penal -ode.
(People v =artin Simon,

W(EN T(E BENE)ITS O) INDETERMINATE SENTENCE LAW IS NOT APPLICABLE+ a.

b. c. d. e. f.
3.

h. i. <.

>ffenses punished by death or life imprisonment. 4hose convicted of treason (Art. ""6,( conspiracy or proposal to commit treason (Art. ""$,. 4hose convicted of misprision of treason (Art. ""',( rebellion (Art. ";6,( sedition (Art. ";%,( or espiona3e (Art. ""7,. 4hose convicted of piracy (Art. "##,. ?abitual delinquents (Art. '#( par. $,. 4hose who escaped from confinement or those who evaded sentence. 4hose 3ranted conditional pardon and who violated the terms of the same (Art. "$%,. (People v. Corral( 76 Phil. ;$%,. 4hose whose ma1imum period of imprisonment does not e1ceed one year. 4hose who are already servin3 final <ud3ment upon the approval of the Indeterminate Sentence Law. those offenses or crimes not punishable by imprisonment such as distierro and suspension.

RECIDI,ISTS ARE ENTITLED TO T(E BENE)ITS O) T(E INDETERMINATE SENTENCE

!ecidivists are entitled to an indeterminate sentence. (People v. Jaramilla( L-#+$67( 9eb. ##( "%76,. >ffender is not disqualified to avail of the benefits of the law even if

the crime is committed while he is on parole. ( People v. Clareon( -A 7+ >. . '7&"( :ov. "%( "%+#,.
(@acar v. Ae uBman,

NATURE O) PENALTO) RECLUSION PERPETUA

In /People -vs- Conrado Lucas( #6& S-!A ''( the Supreme -ourt declared that despite the amendment of Article #7 of the !evised Penal -ode( reclusion perpetua remained an indivisible penalty. ?ence( the penalty does not have any minimum( medium and ma1imum period. ?ence( there is no such penalty of medium period of reclusion perpetua.
(People versus 4iburcio @aculi( #6' S-!A,

IMPOSITION O) WRONG PENALT-: IT DOES NOT OBTAIN )INALIT-

Suppose the court imposed a penalty of #$ years of reclusion perpetua for the crime of rape and the accused did not appeal( does the <ud3ment become final and e1ecutoryC :o( such <ud3ment is null and void because it imposed a non-e1istent penalty. ?ence( the court may nevertheless correct the penalty imposed on the accused( that is( reclusion perpetua( it is merely performin3 a duty inherent in the court.
(People versus :i3el atward( ! :o. ""%77#-7;( 9ebruary 7( "%%7,

DI))ERENCE BETWEEN RECLUSION PERPETUA AND LI)E IMPRISONMENT

4he penalty of reclusion perpetua is different from life imprisonment. 4he former carries with it accessory penalties( whereas life imprisonment does not carry with it any accessory penalties; reclusion perpetua is that provided for under the !evised Penal -ode and under crimes defined by special laws usin3 the nomenclature under the !evised Penal -ode ; life imprisonment is that provided for violations of the !evised Penal -ode. Reclusion Perpetua may be reduced by one or two de3rees while life imprisonment cannot be so reduced.
(People -vs- !olnando =adria3a( ! :o. +##%;( )uly #;( "%%#.,

W(IC( IS MORE BURDENSOME LI)E IMPRISONMENT O) RECLUSION PERPETUA

!eclusion perpetua has accessory penalties while life imprisonment does not. ?owever( life imprisonment does not have a fi1ed duration or e1tent while reclusion perpetua has a duration of from twenty years and one day to forty years. life imprisonment may span the natural life of the convict.
(People -versus- !alla3an( #67 S-!A $;7,

RECLUSION PERPETUA AND LI)E IMPRISONMENT CANNOT BE INTER.C(ANGE W(EN IMPOSED AS PENALT-

8here the law violated provides for the penalty of reclusion perpetua( impose the said penalty and not the penalty of life imprisonment. 8here the law imposes the penalty of life imprisonment( do not impose reclusion perpetua.
(People -vs- !olando =adria3a( #"" S-!A '%+,

T(E REASON W(- RECLUSION PERPETUA (AS A RANGE DESPITE T(E SAME BEING INDI,ISIBLE

4here we also said that /if reclusion perpetua was reclassified as a divisible penalty( then Article '; of the !evised Penal -ode would lose its reason and basis for e1istence./ 4he imputed duration of thirty (;&, years of reclusion perpetua( therefore( only serves as the basis for determinin3 the convict2s eli3ibility for pardon or for the application of the three-fold rule in the service of multiple penalties.
(People -vs- Aspolinar !a3anas( et al ! :o. "&""++( >ctober "#( "%%%,

RARE CASE O) APPLICATION O) RPC IN A SUPPLETORC(ARACTER DESPITE T(E PENALTBEING LI)E IMPRISONMENT

8here the accused committed qualified violation of PA 7&6 (fishin3 with the use of e1plosives,( the imposable penalty for which is life imprisonment to death. If the accused is entitled to a miti3atin3 circumstance of voluntary surrender( the court should impose life imprisonment applyin3( in a suppletory character( Articles "; and '; of the !evised Penal -ode.

(People -vs- Priscilla @alasa(

! :o. "&';$7( September ;( "%%+,

ACCUSED W(O IS SENTENCED TO RECLUSION PERPETUA IS STILL ENTITLED TO EIT(ER )ULL OR / O) (IS PRE,ENTI,E IMPRISONMENT

If( durin3 the trial( the accused was detained but( after trial( he was meted the penalty of reclusion perpetua( he is still entitled to the full credit of his preventive imprisonment because Article #% of the !evised Penal -ode does not distin3uish between divisible and indivisible penalties.
(People -vs- !olando -orpuB( #;" S-!A 6+&,

JUDY JOBY LOP ! "#. P OPL NO. 1++,10( JUN 2+( 200,

O$ %&

P&'L'PP'N #( ).*.

The Indeterminate Sentence Law provides that if an

offense is punished by the !evised Penal -ode or its amendments( the court shall sentence the accused to an indeterminate penalty( the ma1imum term of which shall be that which( in view of the attendin3 circumstances( can be properly imposed under the rules of the !evised Penal -ode( while the minimum term of which shall be within the ran3e of the penalty ne1t lower to that prescribed by the -ode for the offense. 0nder Article ;"$( as amended by P.A. :o. +"+( the penalty of reclusion temporal is imposed if the amount defraud is over P"#(&&&.&& but does not e1ceed P##(&&&.&&. 4he amount involved in this case is within the abovementioned ran3e. Applyin3 the Indeterminate Sentence Law( the ma1imum imposable penalty is reclusion temporal while the minimum term should be within the ran3e of the penalty ne1t lower to that prescribed by the -ode for the offense( which is prision mayor. 4hus( the -A correctly affirmed the penalty imposed by the trial court which is si1 (', years and one (", day of prision mayor as minimum to twelve years ("#, and one (", day of reclusion temporal as ma1imum.

-UAL'$' D %& $%
0UALI)IED T(E)T IS PENALI1ED B- RECLUSION PERPETUA I) AMOUNT IN,OL,ED IS O,ER P22!333.33

0nder Article ;&% of the !evised Penal -ode( the ma1imum of the penalty for qualified theft is prision mayor to reclusion temporal. ?owever( under Article ;"& of the !evised Penal -ode( the penalty for the crime shall be two (#, de3rees hi3her than the specified in Article ;&% of the -ode. 0nder Article 76 of the !evised Penal -ode( the penalty hi3her by one de3ree than another 3iven penalty( and if such hi3her penalty is death( the penalty shall be reclusion perpetua of forty (6&, years with the accessory penalties of death under Article 6& of the !evised Penal -ode. 4he accused shall not be entitled to pardon before the lapse of forty (6&, years.
(People -vs- 9ernando -anales( #%7 S-!A ''7,

%&

P*OBA%'ON LA. (P.D. /+,) and 0ts A1 ND1 N%#

PROBATION! ITS MEANING

A disposition under which a defendant( after conviction and sentence( is sub<ect to conditions imposed by the -ourt and under the supervision of a probation officer.
PURPOSES O) PROBATIOND

a. to promote the correction and rehabilitation of an offender by providin3 him with personaliBed community based treatment; b. to provide an opportunity for his reformation and reinte3ration into the community; c. to prevent the commission of offenses.
SUBMISSION O) PETITION AND TIME O) )ILING O) PETITION

4he petition or application for probation must be filed directly with the -ourt which sentenced the accused within "$ days from date of promul3ation of the decision convictin3 the accused( or in short within the period to appeal otherwise the <ud3ment shall become final and the accused shall be deemed to have waived his ri3ht to probation.
E))ECT O) )ILING O) PETITION )OR PROBATION

0pon filin3 of petition for probation( the court shall suspend the e1ecution of sentence. Li5ewise( the filin3 of a petition for probation shall be deemed a waiver of the ri3ht to appeal and in case an appeal is made immediately after conviction( a filin3 of petition for probation still within the period to appeal( that is within fifteen days from date of promul3ation shall be deemed a withdrawal of the appeal.
PENDING RESOLUTION O) PETITION! W(AT ARE T(E PRI,ILEGES T(AT MA-BE GI,EN TO T(E ACCUSED.PETITIONER4

". if the accused( prior to the promul3ation of decision of conviction is out on bail( he may be allowed on temporary liberty under his bail filed in said case; #. if he is under detention( upon motion( he may be allowed temporary liberty( if he cannot post a bond( on a reco3niBance of a responsible member of a community who shall 3uarantee his appearance whenever required by the court.
IN CASE T(E APPLICANT )OR PROBATION CANNOT BE PRODUCED B- T(E CUSTODIAN ON RECOGNI1ANCE! W(AT (APPENS4

4he custodian must be as5ed to e1plain why he should not be cited for contempt for failin3 to produce the probationer when required by the court; Summary hearin3 will be held for indirect contempt( and if custodian cannot produce the petitioner( nor to e1plain his failure to produce the petitioner( the custodian on reco3niBance shall be held in contempt of court.
W(AT IS A POST SENTENCE IN,ESTIGATION REPORT4

It is a report of the Parole and Probation >fficer after conductin3 post sentence investi3ation and interviews containin3 the circumstances surroundin3 the offense for which the petitioner was convicted. 4he findin3s should be drawn from the court records( police records( statement of defendants( the a33rieved party and other persons who may

5now the petitioner and all other matters material to the petition. It will also include the psycholo3ical and social information re3ardin3 the probationer; evaluation of the petitioner; suitability for probation; his potential for rehabilitation; and may include the pro3ram for supervision and su33ested terms of conditions of probation and a recommendation either to deny or 3rant the probation.
W(AT ARE T(E MANDATORCONDITIONS O) PROBATION4

a.4o present himself to the probation officer concerned for supervision within 7# hours from receipt of said order and b.to report to the probation officer at least once a month durin3 the period of probation.
W(AT ARE T(E OT(ER CONDITIONS O) PROBATION4

a. cooperate with a pro3ram of supervision; b. meet his family responsibilities; c. devote himself to a specific employment and not to char3e said employment without prior written approval of the probation officer; d. comply with a pro3ram of payment of civil liability to the victim of his heirs; e. under3o medical( psycholo3ical or psychiatric e1amination and treatment andEor enter and remain in a specific institution( when required for that purposes; f. pursue a prescribed secular study or vocational trainin3; 3. attend or reside in a facility established for instruction or recreation of persons on probation; h. refrain from visitin3 houses of ill-repute; i. abstain from drin5in3 into1icatin3 bevera3es to e1cess; <. permit the probation officer or an authoriBed social wor5er to visit his home and place of wor5; 5. reside at premises approved by the court and not to chan3e his residence wEo prior written approval; and

10

l. satisfy any other condition related to the rehabilitation of the probationer and not unduly restrictive of his liberty or incompatible with his freedom of conscience. m. plant trees ( see circular of the S- ,
RULES ON OUTSIDE TRA,EL O) PROBATIONER

A probationer who desires to travel outside the <urisdiction of the city or provincial probation officer for not more than ;& days( the permission of the parole and probation officer must be sou3ht. If for more than thirty (;&, days( aside from the permission of the parole and probation officer( the permission of the court must li5ewise be sou3ht.
E))ECT O) APPEAL B- T(E ACCUSED O) (IS CON,ICTION

a. If the accused appeals his conviction for the purpose of totally reversin3 his conviction( he is deemed to have waived his ri3ht to probation. b. 4he rule that if the accused appeals his conviction only with respect to the penalty( as he believes the penalty is e1cessive or wron3( and as the penalty is probationable( and the appellate court sustains the accused( he is deemed to have abandoned his ri3ht to probation. An appeal therefore( irrespective of its purpose; to overturn the entire decision or only with respect to penalty is a waiver to probation.
CON)IDENTIALIT- O) RECORDS O) PROBATION

4he investi3ation report and the supervision and history of a probationer obtained under PA :o. %'+ and under these rules shall be privile3ed and shall not be disclosed directly or indirectly to anyone other than the probation administration or the court concerned. 4he court which 3ranted the probation or where the probation was transferred may allow the probationer to inspect the aforesaid documents or his lawyer( whenever such disclosure may be desirable or helpful to them. 11

Any 3overnment office may as5 for the records of probation from the court for its official use or from the administrator.
Se". 25! PD 56&: ,IOLATION O) CON)IDENTIAL NATURE O) PROBATION RECORDS. 4he penalty of imprisonment

ran3in3 from si1 months and one day to si1 years and a fine ran3in3 from hundred to si1 thousand pesos shall be imposed upon any person who violates Section "7 hereof.
MODI)ICATION O) CONDITION OR PERIOD O) PROBATION

4he court( on motion( or motu propio modify the conditions of probation or modify the period of probation as circumstances may warrant.
W(O ARE DIS0UALI)IED TO UNDERGO PROBATION

". 4hose sentenced to serve a ma1imum term of imprisonment of more than si1 years. #. 4hose convicted of any offense a3ainst the security of the state; ;. 4hose who have been previously convicted by final <ud3ment of an offense punished by imprisonment of not less than one moth and one day andEor a fine of not less than P#&&.&&; 6. 4hose who have been once on probation under the provisions of this decree. $. 4hose convicted of !A %"$'. '. 4hose convicted of violation of election laws.
PERIOD O) PROBATION

". If

the probationer has been sentenced to an imprisonment of not more than one year( the probation shall not e1ceed two years;

#. In all other cases( not to e1ceed si1 years;

12

;. In case the penalty is fine( the probation shall not be less than the period of subsidiary imprisonment nor more than twice of the subsidiary imprisonment.

AMENDMENT TO SECTION % O) PD 56&D

/Sec. 6. rant of Probation. - Sub<ect to the provisions of this Aecree( the trial court may( after it shall have convicted and sentenced a defendant( and upon application by said defendant within the period for perfectin3 an appeal( suspend the e1ecution of the sentence and place the defendant on probation for such period and upon such terms and conditions as it may deem best; Provided( 4hat no application for probation shall be entertained or 3ranted if the defendant has perfected the appeal from the <ud3ment of conviction. /Probation may be 3ranted a term of imprisonment or probation shall be filed with application shall be deemed whether the sentence imposes a fine only. An application for the trial court. 4he filin3 of the a waiver of the ri3ht to appeal.

/An order 3rantin3 or denyin3 probation shall not be appealable./ 4hus( a person who was sentenced to destierro cannot apply for probation. !easonD it does not involve imprisonment or fine.
(PA "%%&,

JU*'#P*UD N2 UNDERL-ING P(ILOSOP(- O) PROBATION

4he underlyin3 philosophy of probation is indeed one of liberality towards the accused. It is not served by a harsh and strin3ent interpretation of the statutory provisions. Probation is a ma<or step ta5en by our overnment towards the deterrence and minimiBin3 of crime and the humaniBation of criminal <ustice. In line with the public policy behind probation( the ri3ht of appeal should not be irrevocably lost from the moment a

13

convicted accused files an application for probation. Appeal and probation sprin3 from the same policy considerations of <ustice( humanity( and compassion. (Fusi v =orales( 6E#+E+;,
PROBATION IS NOT A RIG(T BUT A PRI,ILEGE

Probation is a mere privile3e and its 3rant rest solely upon the discretion of the court. As aptly noted in 0.S. vs. Aur5en( this discretion is to be e1ercised primarily for the benefit of or3aniBed society and only incidentally for the benefit of the accused. (4olentino v. Alconcel( .!. :o. ';6&&( ;E"+E+;,. Gven if a convicted person is not included in the list of offenders disqualified from the benefits of a decree( the 3rant of probation is nevertheless not automatic or ministerial( (Pablo @ernardo v. @ala3ot( #"$ S-!A $#', therefore a petition for probation may be denied by the -ourt.
MAIN CRITERION )OR DETERMINING W(O MA- BE GRANTED PROBATION.

4he main criterion laid down by the Probation law in determinin3 who may be 3ranted probation is based on the penalty imposed and not on the nature of the crime. @y the relative li3htness of the offense( as measured by the penalty imposed( more than by its nature( as the law so ordains the offender is not such a serious menace to society as to be wrested away therefrom( as the more dan3erous type of criminals should be. ?ence( in the case at bar( the first reason 3iven by the respondent <ud3e for his denial of the petition for probation that( /probation will depreciate the seriousness of the offense committed/ would thus be writin3 into the law a new 3round for disqualifyin3 a first-offender from the benefits of probation. (Santos v. -ruB-Pano( "E"7E+;,
TIMELINESS O) )ILING APPLICATION )OR PROBATION

4he accused must file a Petition for Probation within the period for appeal. If the decision of conviction has become final and e1ecutory( the accused is barred from filin3 a Petition for Probation (Pablo 9rancisco v. -.A.( 6E'E%$,. 14

ORDER DEN-ING PROBATION NOT APPEALABLE! REMED- CERTIORARI

Althou3h an order denyin3 probation is not appealable( the accused may file a motion for -ertiorari from said order (?eirs of 9rancisco Abue3 v. -.A.( #"% S-!A 7+,
E))ECT O) )ILING PETITION )OR PROBATION! WAI,ER O) RIG(T TO APPEAL AND )INALIT- O) JUDGEMENT

A <ud3ment of conviction becomes final when the accused files a petition for probation. ?owever( the <ud3ement is not e1ecutory until the petition for probation is resolved. 4he filin3 of the petition for probation is a waiver by the accused of his ri3ht to appeal the <ud3ement of conviction (?eirs of 9rancisco Abue3 v. -.A.( supra,.
MULTIPLE CON,ICTIONS IN SE,ERAL CASES PROBATIONABLE I) PENALT- )OR EAC( CON,ICTION IS PROBATIONABLE

Gvidently( the law does not intend to sum up the penalties imposed but to ta5e each penalty( separately and distinctly with the others. -onsequently( even if petitioner was supposed to have served his prison term of one (", year and one (", day to one (", year and ei3ht (+, months of prision correccional si1teen ("', times as he was sentenced to serve the prison term for /each crime committed on each date of each case( as alle3ed in the information(s,(/ and in each of the four (6, informations( he was char3ed with havin3 defamed the four (6, private complainants on four (6, different( separate days( he was still eli3ible for probation( as each prison term imposed on petitioner was probationable. (9rancisco v. -A; 6E"'E%$,
REASON )OR )I*ING CUT O)) POINT AT A MA*IMUM O) SI* -EARS IMPRISONMENT )OR PROBATION.

9i1in3 the cut-off point at a ma1imum term of si1 (', years imprisonment for probation is based on the assumption that those sentenced to hi3her penalties pose too 3reat a ris5 15

to society( not <ust because of their demonstrated capability for serious wron3doin3 but because of the 3ravity and serious consequences of the offense they mi3ht further commit. 4he Probation Law( as amended( disqualifies only those who have been convicted of 3rave felonies as defined in Art. % in relation to Art. #$ of 4he !evised Penal -ode( and not necessarily those who have been convicted of multiple offenses in a sin3le proceedin3 who are deemed to be less perverse. ?ence( the basis of the disqualification is principally the 3ravity of the offense committed and the concomitant de3ree of penalty imposed. 4hose sentenced to a ma1imum term not e1ceedin3 si1 (', years are not 3enerally considered callous( hard core criminals( and thus may avail of probation
,IOLATION O) RA 6%27! A ,ALID CAUSE )OR DISMISSAL IN SER,ICE IN T(E GO,ERNMENT DESPITE PROBATION

Aru3-pushin3( as a crime( has been variously condemned as /an especially vicious crime(/ /one of the most pernicious evils that has ever crept into our society./ 9or those who become addicted to it /not only slide into the ran5s of the livin3 dead( what is worse( they become a 3rave menace to the safety of law-abidin3 members of society(/ while /peddlers of dru3s are actually a3ents of destruction. 4hey deserve no less than the ma1imum penalty Hof deathI./ 4here is no doubt that dru3-pushin3 is a crime which involves moral turpitude and implies /every thin3 which is done contrary to <ustice( honesty( modesty or 3ood morals/ includin3 /acts of baseness( vileness( or depravity in the private and social duties which a man owes to his fellowmen or to society in 3eneral( contrary to the accepted rule of ri3ht and duty between man and man./ Indeed nothin3 is more depraved than for anyone to be a merchant of death by sellin3 prohibited dru3s( an act which( as this -ourt said in one case(/ often breeds other crimes. It is not what we mi3ht call a 2contained2 crime whose consequences are limited to that crime alone( li5e swindlin3 and bi3amy. -ourt and police records show that a si3nificant number of murders( rapes( and similar offenses have been committed by persons under the influence of dan3erous dru3s( or while they are 2hi3h.2 8hile spreadin3 such dru3s( the dru3-pusher is also abettin3(

16

throu3h his a3reed and irresponsibility( the commission of other crimes./ 4he ima3e of the <udiciary is tarnished by conduct( which involves moral turpitude. 8hile indeed the purpose of the Probation Law (P.A. :o. %'+( as amended, is to save valuable human material( it must not be for3otten that unli5e pardon probation does not obliterate the crime of which the person under probation has been convicted. 4he reform and rehabilitation of the probationer cannot <ustify his retention in the 3overnment service. ?e may see5 to reenter 3overnment service( but only after he has shown that he is fit to serve once a3ain. It cannot be repeated too often that a public office is a public trust( which demands of those in its service the hi3hest de3ree of morality. (>-A v. Librado #'& S-!A '#6( +E##E%',
PETITIONER MA- STILL E*(ORT O))ENDER TO PER)ORM CERTAIN ACTS DESPITE DISC(ARGE )ROM PROBATION IN CERTAIN CASES

Petitioner Arthur =. -uevas( )r.2s dischar3e from probation without any infraction of the attendant conditions therefor and the various certifications attestin3 to his ri3hteous( peaceful and civic-oriented character prove that he has ta5en decisive steps to pur3e himself of his deficiency in moral character and atone for the unfortunate death of !aul I. -amali3an. 4he -ourt is prepared to 3ive him the benefit of the doubt( ta5in3 <udicial notice of the 3eneral tendency of the youth to be rash( temerarious and uncalculatin3. Let it be stressed to herein petitioner that the lawyer2s oath is not a mere formality recited for a few minutes in the 3lare of flashin3 cameras and before the presence of select witnesses. Petitioner is e1horted to conduct himself beyond reproach at all times and to live strictly accordin3 to his oath and the -ode of Professional !esponsibility. And( to paraphrase =r. )ustice Padilla2s comment in the sister case of !eD Petition of Al Ar3osino 4o 4a5e 4he Lawyer2s >ath( @ar =atter :o. 7"#( =arch "%( "%%7( /HtIhe -ourt sincerely hopes that/ =r. -uevas( )r.( /will continue with the assistance he has been 3ivin3 to his community. As a lawyer he will now be in a better position to render le3al and other services to the more unfortunate members of society/. (In !eD -uevas( )r.; "E#7E%+,

17

E*PIRATION O) PERIOD O) PROBATION TERMINATION! ORDER O) COURT RE0UIRED

IS

NOT

4he mere e1piration of the period for probation does not( ipso facto( terminate the probation. Probation is not coterminus with its period( there must be an order from the -ourt of final dischar3e( terminatin3 the probation. If the accused violates the condition of the probation before the issuance of said order( the probation may be revo5ed by the -ourt (=anuel @ala v. =artineB( "+" S-!A 6$%,. #antos 3. 24567Pano( 18198,3 Probation is a mere privile3e and its 3rant rests solely upon the discretion of the court. As aptly noted in 0.S. vs. Aur5em( this discretion is to be e1ercised primarily for the benefit of or3aniBed society and only incidentally for the benefit of the accused. (4olentino v. Alconcel( .!. :o. ';6&&( ;E"+E+;,. Gven if a convicted person is not included in the list of offenders disqualified from the benefits of a decree( the 3rant of probation is nevertheless not automatic or ministerial( (Pablo @ernardo v. @ala3ot( #"$ S-!A $#', therefore a petition for probation may be denied by the -ourt. 4he main criterion laid down by the Probation law in determinin3 who may be 3ranted probation is based on the penalty imposed and not on the nature of the crime. @y the relative li3htness of the offense( as measured by the penalty imposed( more than by its nature( as the law so ordains the offender is not such a serious menace to society as to be wrested away therefrom( as the more dan3erous type of criminals should be. ?ence( in the case at bar( the first reason 3iven by the respondent <ud3e for his denial of the petition for probation that( Jprobation will depreciate the seriousness of the offense committedK would thus be writin3 into the law a new 3round for disqualifyin3 a first-offender from the benefits of probation.
IT IS NOT T(E TOTALIT- O) T(E PENALTIES IMPOSED )OR ALL CASES T(AT DETERMINES W(ET(ER T(E CASE IS PROBATIONABLE OR NOT.

Gvidently( the law does not intend to sum up the penalties imposed but to ta5e each penalty( separately and distinctly with the others. -onsequently( even if petitioner

18

was supposed to have served his prison term of one (", year and one (", day to one (", year and ei3ht (+, months of prision correccinal si1teen ("', times as he was sentenced to serve the prison term for Jeach crime committed on each date of each case( as alle3ed in the information(s,(K and in each of the four (6, informations( he was char3ed with havin3 defamed the four (6, private complainants on four (6, different( separate days( he was still eli3ible for probation( as each prison term imposed on petitioner was probationable. (Francisco vs. CA !"#!"$$#%

AN%'7$ N2'N) LA. O$ 1/9/ (PD NO. 1+12) DE)INITION

9encin3 as defined in Sec. # of PA :o. "'"# (Anti9encin3 Law, is Jthe act of any person who( with intent to 3ain for himself or for another( shall buy( receive( possess( 5eep( acquire( conceal( sell or dispose of( or shall buy and sell( or in any manner deal in any article( item( ob<ect or anythin3 of value which he 5nows or should be 5nown to him( or to have been derived from the proceeds of the crime of robbery or theft. (AiBon-Pamintuan vs. People( ! """6#'( "" )uly %6,.
BRIE) (ISTOR- O) PD $6$2 OR T(E ANTI.)ENCING LAW

Presidential Aecree :o. "'"# or commonly 5nown as the Anti-9encin3 Law of "%7% was enacted under the authority of therein President 9erdinand =arcos. 4he law too5 effect on =arch #( "%7%. 4he Implementin3 !ules and !e3ulations of the Anti-9encin3 Law were subsequently formulated and it too5 effect on )une "$( "%7%.
T(E PURPOSE O) ENACTING PD $6$2

4he Anti-9encin3 Law was made to curtail and put an end to the rampant robbery of 3overnment and private properties. 8ith the e1istence of /ready buyers/( the /business/ of robbin3 and stealin3 have become profitable. ?ence( a law was enacted to also punish those who buy

19

stolen properties. 9or if there are no buyers then the malefactors could not profit from their wron3 doin3s.
W(AT IS T(E ANTI.)ENCING LAW AND (OW IT CAN BE COMMITTED

/9encin3/ is the act of any person who( with intent to 3ain for himself or for another( shall buy receive( possess( 5eep( acquire( conceal( sell or dispose of( or shall buy and sell( or in any other manner deal in any article( item( ob<ect or anythin3 of value which he 5nows( or should be 5nown to him( to have been derived from the proceeds of the crime of robbery or theft. A /9ence/ includes any person( firm( association corporation or partnership or other or3aniBation whoE which commits the act of fencin3.
W(O ARE LIABLE )OR T(E CRIME O) )ENCING+ AND ITS PENALTIES:

4he person liable is the one buyin3( 5eepin3( concealin3 and sellin3 the stolen items. If the fence is a corporation( partnership( association or firm( the one liable is the president or the mana3er or the officer who 5nows or should have 5now the fact that the offense was committed. 4he law provide for penalty ran3e for persons convicted of the crime of fencin3. 4heir penalty depends on the value of the 3oods or items stolen or bou3htD a. 4he penalty of prision mayor( if the value of the property involved is more than "#(&&& pesos but not e1ceedin3 ##(&&& pesos; if the value of such property e1ceeds the latter sum( the penalty provided in this para3raph shall be imposed in its ma1imum period( addin3 one year for each additional "&(&&& pesos; but the total penalty which may be imposed shall not e1ceed twenty years. In such cases( the penalty shall be termed reclusion temporal and the accessory penalty pertainin3 thereto provided in the !evised Penal -ode shall also be imposed. b. 4he penalty of prision correccional in its medium and ma1imum periods( if the value of

20

the property robbed or stolen is more than '(&&& pesos but not e1ceedin3 "#( &&& pesos; c. 4he penalty of prision correccional in its minimum and medium periods( if the value of the property involved is more than #&& pesos but not e1ceedin3 '(&&& pesos; d. 4he penalty of arresto mayor in its medium period to prision correccional in its minimum period( if the value of the property involved is over $& but not e1ceedin3 #&& pesos; e. 4he penalty of arresto mayor in its medium period if such value is over five ($, pesos but not e1ceedin3 $& pesos. f. 4he penalty of arresto mayor in its minimum period if such value does not e1ceed $ pesos.
RULES REGARDING BU- AND SELL PARTICULARL- SECOND (AND GOODS O) GOODS

4he law requires the establishment en3a3ed in the buy and sell of 3oods to obtain a clearance or permit to sell /used second hand items/( to 3ive effect to the purpose of the law in puttin3 an end to buyin3 and sellin3 stolen items. 9ailure of which ma5es the owner or mana3er liable as a fence. 4he Implementin3 !ules provides for the 3uidelines of issuance of clearances or permits to sell used or secondhand items. It provided for the definition of the followin3 termsD ". /0sed secondhand article/ shall refer to any 3oods( article( items( ob<ect or anythin3 of value obtained from an unlicensed dealer or supplier( re3ardless of whether the same has actually or in fact been used. #. /0nlicensed dealerEsupplier/ shall refer to any persons( partnership( firm( corporation( association or any other entity or establishment not licensed by the 3overnment to en3a3e in the business of

21

dealin3 in or of supplyin3 the articles defined in the precedin3 para3raph; ;. /Store/( /establishment/ or /entity/ shall be construed to include any individual dealin3 in the buyin3 and sellin3 used secondhand articles( as defined in para3raph hereof; 6. /@uy and Sell/ refer to the transaction whereby one purchases used secondhand articles for the purpose of resale to third persons; $. /Station -ommander/ shall refer to the Station -ommander of the Inte3rated :ational Police within the territorial limits of the town or city district where the store( establishment or entity dealin3 in the buyin3 and sellin3 of used secondhand articles is located.
PROCEDURE )OR SECURING PERMIT8CLEARANCE

4he Implementin3 !ules provided for the method of obtainin3 clearance or permit. No 9ee :ill ;e "#arge< 9or #e i==uan"e o9 #e "learan"e8>er?i . )ailure o =e"ure "learan"e8>er?i =#all ;e >uni=#e< a= a 9en"e! #a ?ay re=ul o #e "an"ella ion o9 ;u=ine== li"en=e. ". 4he Station -ommander shall require the owner of a store or the President( mana3er or responsible officer in havin3 in stoc5 used secondhand articles( to submit an initial affidavit within thirty (;&, days from receipt of notice for the purpose thereof and subsequent affidavits once every fifteen ("$, days within five ($, days after the period covered( which shall containD a. complete inventory of such articles includin3 the names and addresses from whom the articles were acquired. b. 9ull list of articles to be sold or offered for sale includin3 the time and place of sale c. Place where the articles are presently deposited.

22

4he Station -ommander may( require the submission of an affidavit accompanied by other documents showin3 proof of le3itimacy of acquisition. #. 4hose who wish to secure the permitEclearance( shall file an application with the Station -ommander concerned( which statesD a. name( address and other pertinent circumstances b. article to be sold or offered for sale to the public and the name and address of the unlicensed dealer or supplier from whom such article was acquired. c. Include the receipt or document showin3 proof of le3itimacy of acquisition. ;. 4he Station -ommander shall e1amine the documents attached to the application and may require the presentation of other additional documents( if necessary( to show satisfactory proof of the le3itimacy of acquisition of the article( sub<ect to the followin3 conditionsD a. if the Station -ommander is not satisfied with the proof of le3itimacy of acquisition( he shall cause the publication of the notice( at the e1pense of the one see5in3 clearanceEpermit( in a newspaper of 3eneral circulation for two consecutive days( statin3D articles acquired from unlicensed dealer or supplier the names and addresses of the persons from whom they were acquired that such articles are to be sold or offered for sale to the public at the address of the store( establishment or other entity see5in3 the clearanceEpermit. 6. If there are no newspapers in 3eneral circulation( the party see5in3 the clearanceEpermit shall( post a notice daily for one wee5 on the bulletin board of the municipal buildin3 of the town where the store( firm( establishment or

23

entity is located or( in the case of an individual( where the articles in his possession are to be sold or offered for sale. $. If after "$ days( upon e1piration of the period of publication or of the notice( no claim is made to any of the articles enumerated in the notice( the Station -ommander shall issue the clearance or permit sou3ht. '. If before e1piration of the same period for the publication of the notice or its postin3( it shall appear that any of the articles in question is stolen property( the Station -ommander shall hold the article in restraint as evidence in any appropriate case to be filed. Articles held in restraint shall 5ept and disposed of as the circumstances of each case permit. In any case it shall be the duty of the Station -ommander concerned to adviseEnotify the -ommission on Audit of the case and comply with such procedure as may be proper under applicable e1istin3 laws( rules and re3ulations. 7. 4he Station -ommander shall( within seventy-two (7#, hours from receipt of the application( act thereon by either issuin3 the clearanceEpermit requested or denyin3 the same. Aenial of an application shall be in writin3 and shall state in brief the reasonEs thereof. +. Any party not satisfied with the decision of the Station -ommander may appeal the same within "& days to the proper I:P (now P:P, Aistrict Superintendent and further to the I:P (now P:P, Airector. 4he decision of the Airector can still be appealed top the Airector- eneral( within "& days( whose decision may be appealed with the =inister (now Secretary, of :ational Aefense( within "$ days( which decision is final.
PRESUMPTION O) )ENCING

=ere possession of any 3ood( article( item( ob<ect or anythin3 fo value which has been the sub<ect of robbery or thievery( shall be prima facie evidence of fencin3.
ELEMENTS

24

". A crime of robbery or theft has been committed; #. 4he accused( who is not a principal or accomplice in the commission of the crime of robbery or theft( buys( receives( possess( 5eeps( acquires( conceals( sells( or disposes( or buys and sells( or in any manner deals in any article( item( ob<ect or anythin3 of value( which has been derived from the proceeds of the said crime; ;. 4he accused 5nows or should have 5nown that the said article( item( or ob<ect or anythin3 of value has been derived from the proceeds of the crime of robbery or theft; and 6. 4here is( on the part of the accused( intent to 3ain for himself or for another. (AiBon-Pamintuan vs People( ! """6#'( "" )uly %6, As re3ards the first element( the crime of robbery or theft should have been committed before crime of fencin3 can be committed. 4he person committin3 the crime of robbery or theft( may or may not be the same person committin3 the crime of fencin3. As in the case of &.'. Consun(i) *nc.) vs. +s,uerra( quantities of phelonic plywood were stolen and the -ourt held that qualified theft had been committed. In People vs. Lucero there was first a snatchin3 incident( where the ba3 of =rs. =aripaB @ernard !amolete was snatch in the public mar5et of -arbon( -ebu -ity( where she lost a -hinese old :ec5lace and pendant worth some P6(&&&.&& to snatchers =anuel Glardo and Lacarias Pateras. 4he snatchers sold the items to =anuel Lucero. -onsequently( Lucero was char3ed with violation of the Anti-9encin3 Law. ?owever( in this case( no eyewitness pointed to Lucero as the perpetrator and the evidence of the prosecution was not stron3 enou3h to convict him. 4he second element spea5s of the overt act of 5eepin3( buyin3( receivin3( possessin3( acquirin3( concealin3( sellin3 or disposin3 or in any manner deals with stolen items. It is thus illustrated in the case of Lim vs. -ourt of Appeals( where the accused( )uanito Lim stored and 5ept in his bode3a and subsequently bou3ht or disposed of the nine (%, pieces of stolen tires with rims owned by Loui Anton @ond. 4he accused 5nown or should have 5nown that the 3oods were stolen. As pointed out in the case of People vs. 25

Adriatico( the court in convictin3 :orma Adriatico( stated that it was impossible for her to 5now that the <ewelry were stolen because of the fact that -risilita was willin3 to part with a considerable number of <ewelry at measly sum( and this should have apprised :orma of the possibility that they were stolen 3oods. 4he appro1imate total value of the <ewelry were held to be at P#&(&&&.&&( and :orma havin3 bou3ht it from -risilita for only P#(7&&. 4he court also considered the fact that :orma en3a3e in the business of buyin3 and sellin3 3old and silver( which business is very well e1posed to the practice of fencin3. 4his requires more than ordinary case and caution in dealin3 with customers. As noted by the trial courtD /. . . the -ourt is not inclined to accept the accused2s theory of buyin3 in 3ood faith and disclaimer of ever seein3( much more( buyin3 the other articles. ?uman e1perience belies her alle3ations as no businessman or woman at that( would let 3o of such opportunities for a clean profit at the e1pense of innocent owners.** 4he -ourt in convictin3 Grnesto Aunlao Sr.( noted that the stolen articles composed of farrowin3 crates and .I. pipes were found displayed on petitioner2s shelves inside his compound. (Aunalao( Sr. v. -A( &+E##E%', In the case of People v. 'uere ( .!."#%&#( "&E"+E%6,( the third element was not proven. 4his case involves the sellin3 of alle3ed stolen Menwood Stereo 0nit in the store Aanvir 4radin3( owned by the spouses =uere. 4he store is en3a3ed in buyin3 and sellin3 of second hand merchandise located at Pasay !oad( =a5ati. 4he said stereo was bou3ht from 8ynn2s Audio( an e1istin3 establishment. 4he court held that there is no proof that the spouses =uere( had 5nowled3e of the fact that the stereo was stolen. 4he spouses =uere purchased the stereo from a 5nown merchant and the unit is displayed for sale in their store. 4hese actions are not indicative of a conduct of a 3uilty person. >n the same vein( the third element did not e1ist in the case of &.'. Consun(i) *nc. (-onsun<i v. Gs3uerra( &7E;&E%', where the sub<ect of the court action are the alle3ed stolen phelonic plywood owned by A.=. -onsun<i( Inc.( later found to be in the premises of =- Industrial Sales and Seato tradin3 -ompany( owned respectively by Gduardo -hin3 and the spouses Sy. !espondents presented sales receipts coverin3 26

their purchase of the items from Paramount Industrial( which is a 5nown hardware store in -aloocan( thus they had no reason to suspect that the said items were products of theft. 4he last element is that there is intent to 3ain for himself or for another. ?owever( intent to 3ain need not be proven in crimes punishable by a special law such as the Anti9encin3 Law. 4he crimes punishable by special laws are called /acts mala pro-ibita/. 4he rule on the sub<ect is that in acts mala pro-ibita) the only inquiry is that( has the law been violatedC (in atdner v. People( as cited in 0S v. o -hico( "6 Phils. ";6, 8hen the act is prohibited by law( intent is immaterial. Li5ewise( dolo or deceit is immaterial in crimes punishable by special statute li5e the Anti-9encin3 Law. It is the act itself which constitutes the offense and not the motive or intent. Intent to 3ain is a mental state( the e1istence if which is demonstrated by the overt acts of the person. 4he mental state is presumed from the commission of an unlawful act. (Aunlao v. -A, a3ain( intent to 3ain is a mental state( the e1istence of which is demonstrated by the overt acts of person( as the 5eepin3 of stolen items for subsequent sellin3.
A )ENCE MA- BE PROSECUTED UNDER T(E RPC OR PD $6$2

4he state may thus choose to prosecute him either under the !P- or PA :>. "'"# althou3h the preference for the latter would seem inevitable considerin3 that fencin3 is a malum pro-ibitum( and PA :o. "'"# creates a presumption of fencin3 and prescribes a hi3her penalty based on the value of the property. (supra,
MERE POSSESSION O) STOLEN ARTICLE PRIMA )ACIE E,IDENCE O) )ENCING

Since Sec. $ of PA :>. "'"# e1pressly provides that Jmere possession of any 3ood( article( item( ob<ect or anythin3 of value which has been the sub<ect of robbery or thievery shall be prima facie evidence of fencin3K it follows that the accused is presumed to have 5nowled3e of the fact that the items found in her possession were the proceeds of

27

robbery or theft. 4he presumption does not offend the presumption of innocence enshrined in the fundamental law.
DISTINCTION BETWEEN )ENCING AND ROBBER-

4he law on fencin3 does not require the accused to have participation in the criminal desi3n to commit or to have been in any wise involved in the commission of the crime of robbery or theft. :either is the crime of robbery or theft made to depend on an act of fencin3 in order that it can be consummated. (People v Ae uBman( ! 77;'+,. !obbery is the ta5in3 of personal property belon3in3 to another( with intent to 3ain( by means of violence a3ainst or intimidation of any person( or usin3 force upon anythin3. >n the other hand( fencin3 is the act of any person who( with intent to 3ain for himself or for another( shall buy( receive( possess( 5eep( acquire( conceal( sell or dispose of( or shall buy and sell( or in any other manner deal in any article( item( ob<ect or anythin3 of value which he 5nows( or shall be 5nown to him( to have been derived from the proceeds of the crime of robbery or theft.
)ENCING AS A CRIME IN,OL,ING MORAL TURPITUDE.

In violation of the Anti-9encin3 Law( actual 5nowled3e by the /fence/ of the fact that property received is stolen displays the same de3ree of malicious deprivation of one2s ri3htful property as that which animated the robbery or theft which by their very nature are crimes of moral turpitude. (Aela
4orre v. ->=GLG- &7E&$E%',

=oral turpitude can be derived from the third element accused 5nows or should have 5nown that the items were stolen. Participation of each felon( one bein3 the robber or the thief or the actual perpetrators( and the other as the fence( differs in point in time and de3ree but both invaded one2s peaceful dominion for 3ain. (Supra, @oth crimes ne3ated the principle of each person2s duty to his fellowmen not to appropriate thin3s that they do not own or return somethin3 acquired by mista5e or with malice. 4his si3nifies moral turpitude with moral unfitness.

28

In the case of Aela 4orre( he was declared disqualified from runnin3 the position of =ayor in -avinti( La3una in the last =ay +( "%%$ elections because of the fact of the disqualification under Sec. 6& of the Local overnment -ode( of persons runnin3 for elective position -/Sec. 6& Aisqualifications - (a, 4hose sentenced by final <ud3ement for an offense involvin3 moral turpitude.../ Aela 4orre was disqualified because of his prior conviction of the crime of fencin3 wherein he admitted all the elements of the crime of fencin3.
ESSENCE O) ,IOLATION O) PD $6$2! SEC. 2 OR ANTI.)ENCING

In the case of People v. 'uere ( .!. "#%&#( "&E"+E%6,( the third element was not proven. 4his case involves the sellin3 of alle3ed stolen Menwood Stereo 0nit in the store Aanvir 4radin3( owned by the spouses =uere. 4he store is en3a3ed in buyin3 and sellin3 of second hand merchandise located in Pasay !oad( =a5ati. 4he said stereo was bou3ht from 8ynn*s Audio( an e1istin3 establishment. 4he court held that there is no proof that the spouses =uere( had 5nowled3e of the fact that the stereo was stolen. 4he spouses =uere purchased the stereo from a 5nown merchant and the unit is displayed for sale in their store. 4hese actions are not indicative of a conduct of a 3uilty person. >n the same vein( the third element did not e1ist in the case of A.=. -onsun<i( inc. (-onsun<i v. Gs3uerra( &7E;&E%', where the sub<ect of the court action are the alle3ed stolen phelonic plywood owned by A.=. -onsu<i( Inc.( later found to be in premise of =- Industrial Sales and Seato 4radin3 -ompany( owned respectively by Gduardo -hin3 and the spouses Sy. !espondents presented sales receipts coverin3 their purchase of the items from Paramount Industrial( which is a 5nown hardware store in -aloocan( thus they had no reason to suspect that the said items were products of theft. 4he last element is that there is intent to 3ain for himself or for another. ?owever( intent to 3ain need not to be proven in crimes punishable by a special law such as the Anti-9encin3 Law. 4he crimes punishable by special laws are called Jacts mala pro-ibitaK. 4he rule on the sub<ect is that in

29

acts mala pro-ibita) the only inquiry is that( has the law been violatedC (in atdner v. People( as cited in 0S. N. o -hico( "6 Phils. ";6, 8hen the act is prohibited by law( intent is immaterial. Li5ewise( dolo or deceit is immaterial in crimes punishable by special statute li5e the Anti-9encin3 Law. It is the act itself which constitutes the offense and not the motive or intent. Intent to 3ain is a mental state( the e1istence if which is demonstrated by the overt acts of the person. 4he mental state is presumed from the commission of an ulawful act. (-unlao v. -A, a3ain( intent to 3ain is a mental state( the e1istence of which is demonstrated by the overt acts as person( as the 5eepin3 of stolen items for subsequent sellin3. 4he state may thus choose to prosecute him either under the !P- or PA :o. "'"# althou3h the preference for the latter would seem inevitable considerin3 that fencin3 is a malum pro-ibitum( and PA "'"# creates a presumption of fencin3 and prescribes a hi3her penalty based on the value of the property. (supra, PA "'"#( Section # thereof requires that the offender buys or otherwise acquires and then sells or disposes of any ob<ect of value which he 5nows or should he 5nown to him to have been derived from the proceeds of the crime of robbery or theft. (-aoili v -A; ! "#+;'%( "#E##E%7,
PROO) O) PURC(ASE W(EN GOODS ARE IN POSSESSION O) O))ENDER NOT NECESSAR- IN ANTI.)ENCING

4he law does not require proof of purchase of the stolen articles by petitioner( as mere possession thereof is enou3h to 3ive rise to a presumption of fencin3. It was incumbent upon petitioner to overthrow this presumption by sufficient and convincin3 evidence. (-aoili v. -A; ! "#+;'%( "#E##E%7,

BA%A# PA1BAN#A BL). 22 BOUN2'N) 2& 2:# LA.

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ACTS PUNIS(ABLE:

a. any person who ma5es or draws and issues any chec5 to apply on account or for value( 5nowin3 at the time of issue that he does not have sufficient funds in or credit with the drawee ban5( for the payment of such chec5 in full upon its presentment( which chec5 is subsequently dishonored by the drawee ban5 for insufficiency of funds( or credit( or would have been dishonored for the same reason had not the drawee( without any valid reason( ordered the ban5 to stop payment. b. Any person who havin3 sufficient funds in or credit with the drawee ban5 when he ma5es or draws and issues a chec5( shall fail to 5eep sufficient funds or to maintain a credit to cover the full amount of the chec5 if presented within a period of ninety days from date appearin3 thereon( for which reason( it is dishonored by the drawee ban5.
(OW TO ESTABLIS( GUILT O) ACCUSED IN BP 22

4o establish her 3uilt( it is indispensable that the chec5s she issued for which she was subsequently char3ed( be offered in evidence because the 3ravamen of the offense char3ed is the act of 5nowin3ly issuin3 a chec5 with insufficient funds. -learly( it was error to convict complainant on the basis of her letter alone. :evertheless( despite this incorrect interpretation of a rule on evidence( we do not find the same as sufficiently constitutive of the char3es of 3ross i3norance of the law and of 5nowin3ly renderin3 an un<ust decision. !ather( it is at most an error in <ud3ment( for which( as a 3eneral rule( he cannot be held administratively liable. In this re3ard( we reiterate the prevailin3 rule in our <urisdiction as established by current <urisprudence. ( utierreB v Pallatao; +E+E%+,
NOTICE! AN INDISPENSABLE RE0UISITE )OR PROSECUTION O) BP 22

Section ; of @P ## requires that the holder of the chec5 or the drawee ban5( must notify the drawer of the chec5 that the same was dishonored( if the same is presented within ninety days from date of issuance( and upon notice the

31

drawer has five days within which to ma5e arran3ements for the payment of the chec5 or pay the same in full.
DUT- O) T(E DRAWEE BAN@

4he drawee ban5 has the duty to cause to be written( printed or stamped in plain lan3ua3e thereon( or attached thereto the reason for the drawee*s dishonor or refusal to pay the same. If the drawee ban5 fails to do so( prosecution for violation of @P ## may not prosper.
RULE IN CASE O) DIS(ONOR DUE TO STOP PA-MENT

4he drawee ban5 has not only the duty to indicate that the drawer stopped the payment and the reason for the stop payment. 4he drawee ban5 is further obli3ated to state whether the drawer of the chec5 has sufficient funds in the ban5 or not.
AGREEMENT O) PARTIES REGARDING T(E C(EC@ IS NOT A DE)ENSE

In the case of People vs .itafan( #"$ S-!A( the a3reement of the parties in respect to the issuance of the chec5 is inconsequential or will not affect the violation of @P ##( if the chec5 is presented to the ban5 and the same was dishonored due to insufficiency of funds.
C(EC@S ISSUED IN PA-MENT O) INSTALLMENT

-hec5s issued in payment for installment covered by promissory note and said chec5s bounced( the drawer is liable if the chec5s were drawn a3ainst insufficient funds( especially that the drawer( upon si3nin3 of the promissory note( closed his account. Said chec5 is still with consideration. (-aram !esources v. -ontreras, In this case( the )ud3e was even held administratively liable.

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C(EC@ DRAWN AGAINST A DOLLAR ACCOUNT. RULE:

A chec5 drawn a3ainst a dollar account in a forei3n country is still violative of the provisions of @P ## so lon3 as the chec5 is issued( delivered or uttered in the Philippines( even if the same is payable outside of the Philippines (Ae Nilla v. -A,
GUARANTEE C(EC@S! DRAWER! STILL LIABLE

4he mere act of issuin3 a worthless chec5 is punishable. >ffender cannot claim 3ood faith for it is malum prohibitum. In the case of 'a,no vs CA( when accused issued a chec5 as warranty deposit for lease of certain equipment( even 5nowin3 that he has no funds or insufficient funds in the ban5 is not liable( if the lessor of the equipment pulled out the loaned equipment. 4he drawer has no obli3ation to ma5e 3ood the chec5 because there is no more deposit to 3uaranty.
ISSUANCE O) GUARANTEE C(EC@S W(IC( WAS DIS(ONORED IN ,IOLATION O) T(E LAW AND ITS PURPOSE

4he intention of the framers of @P ## is to ma5e a mere act of issuin3 a worthless chec5 malum prohibitum. In prosecutions for violation of @P ##( therefore( pre<udice or dama3e is not prerequisite for conviction. 4he a3reement surroundin3 the issuance of the chec5s need not be first loc5ed into( since the law has provided that the mere issuance of any 5ind of chec5; re3ardless of the intent of the parties( i.e.( whether the chec5 is intended merely to serve as 3uarantee or deposit( but which chec5s is subsequently dishonored( ma5es the person who issued the chec5 liable. (LaBaro vs -A( et al.( ! "&$6'",.
CAN A PERSON BE (ELD CRIMINALL- LIABLE )OR ISSUING A C(EC@ WIT( SU))ICIENT )UNDS )OR ,IOLATION O) BP 224

/es. Para3raph # of Section " of @P ## providesD

33

4he same penalty shall be imposed upon any person who havin3 sufficient funds in or credit with the drawee ban5 when he ma5es or draws and issues a chec5( shall fail to 5eep sufficient funds or to maintain a credit to cover the full amount of the chec5 if presented within a period of %& days from the date appearin3 thereon( for which reason( it is dishonored by the drawee ban5.
RULE ON RENDERING UNJUST JUDGMENT! IGNORANCE! ETC. B- A JUDGE

In the case of &e la Cru0 vs. Concepcion declaredD

this -ourt

/=ere errors in the appreciation of evidence( unless so 3ross and patent as to produce an inference of i3norance or bad faith( or of 5nowin3 rendition of an un<ust decision( are irrelevant and immaterial in an administrative proceedin3 a3ainst him. :o one( called upon to try facts or interpret the law in the process of administerin3 <ustice( can be infallible in his <ud3ment. All that is e1pected of him is that he follow the rules prescribed to ensure a fair and impartial hearin3( assess the different factors that emer3e therefrom and bear on the issues presented( and on the basis of the conclusions he finds established( with only his conscience and 5nowled3e of the law to 3uide him( ad<udicate the case accordin3ly./ ( utierreB v Pallatao; Adm. =atter O!4)-%$-";#'( )uly +( "%%+,
DI))ERENCE BETWEEN ESTA)A AND ,IOLATION O) BP 22

In the crime of estafa( deceit and dama3e are essential elements of the offense and have to be established with satisfactory proof to warrant conviction. 9or violation of the @ouncin3 -hec5s Law( on the other hand( the elements of deceit and dama3e are neither essential nor required. !ather( the elements of @.P. @l3. ## are (a, the ma5in3( drawin3 and issuance of any chec5 to apply to account or for value; (b, the ma5er( drawer or issuer 5nows at the time of issuance that he does not have sufficient funds in or credit with the 34

drawee ban5 for the payment of such chec5 in full upon its presentment; and( (c, the chec5 is subsequently dishonored by the drawee ban5 for insufficiency of funds or credit or would have been dishonored for the same reason had not the drawer( without valid reason( ordered the ban5 to stop payment. (0y v -ourt of Appeals( ! ""%&&&( )uly #+( "%%7,

JURISDICTION IN BP 22 CASES

In respect of the @ouncin3 chec5s case( the offense also appears to be continuin3 in nature. It is true that the offense is committed by the very fact of its performance (-olmenares vs. Nillar( :o. L-#7"#'( =ay #%( "%7&( ;; S-!A "+',; and that the @ouncin3 -hec5s Law penaliBes not only the fact of dishonor of a chec5 but also the act of ma5in3 or drawin3 and issuance of a bouncin3 chec5 (People vs. ?on. Neridiano( II( :o. L-'##6;( ";# S-!A $#;,. 4he case( therefore( could have been filed also in @ulacan. As held in Pue vs. People of the Philippines( .!. :os. 7$#"7-"+( September ""( "%+7 /the determinative factor (in determinin3 venue, is the place of the issuance of the chec5/. ?owever( it is li5ewise true that 5nowled3e on the part of the ma5er or drawer of the chec5 of the insufficiency of his funds( which is an essential in3redient of the offense is by itself a continuin3 eventuality( whether the accused be within one territory or another (People vs. ?on. =anBanilla( .!. :os. ''&&;-&6( Aecember ""( "%+7,. Accordin3ly( <urisdiction to ta5e co3niBance of the offense also lies in the !e3ional 4rial -ourt of Pampan3a. (:ow( =4-( =-4- or =e4-, And( as pointed out in the =anBanilla case( <urisdiction or venue is determined by the alle3ation in the Information( which are controllin3 (Arches vs. @ellosillo( +" Phil. "%&( cited in 4uBon vs. -ruB( :o. L-#76"&( Au3ust #+( "%7$( '' S-!A #;$,. 4he Information filed herein specifically alle3es that the crime was committed in San 9ernando Pampan3a and therefore within the <urisdiction of the -ourt below. 4his rulin3 was reiterated in the case of Lim vs. Rodri,o( "'7 S-!A 6+7( where it was heldD

35

@esides( it was held in People v. 1on. 'an0anilla( supra( that as /violation of the bad chec5s act is committed when one 2ma5es or draws and issues any chec5 HsicI to apply on account or for value( 5nowin3 at the time issue that he does not have sufficient funds2 or havin3 sufficient funds in or credit with the drawee ban5 . . . shall fail to 5eep sufficient funds or to maintain a credit to cover the full amount of the chec5 if presented within a period of ninety (%&, days from the date appearin3 thereon( for which reason it is dishonored by the drawee ban5(/ /5nowled3e/ is an essential in3redient of the offense char3e. As defined by the statute( 5nowled3e( is( by itself( a continuin3 eventuality( whether the accused be within one territory or another. 4his bein3 the case( the !e3ional 4rial -ourt (now( =e4-, of @a3uio -ity has <urisdiction to try -riminal -ase :o. #&+%-! ('++,. =oreover( we ruled in the same case of People v. ?on. =anBanilla( reiterated in People vs. Grospe( supra( that <urisdiction or venue is determined by the alle3ations in the information. 4he alle3ation in the information under consideration that the offense was committed in @a3uio -ity is therefore controllin3 and sufficient to vest <urisdiction upon the !e3ional 4rial -ourt of @a3uio -ity (=e4-,. In the case at bench it appears that the three (;, chec5s were deposited in Lucena -ity. As to the second error wherein the petitioner asserted that the chec5s were issued /as a 3uarantee only for the feeds delivered to him/ and that there is no estafa if a chec5 is issued in payment of a pree1istin3 obli3ation( the -ourt of Appeals pointed out that the petitioner obviously failed to distin3uish a violation of @.P. @l3. ## from estafa under Article ;"$ (#, HdI of the !evised Penal -ode. It further stressed that @.P. @l3. ## applies even in cases where dishonored chec5s were issued as a 3uarantee or for deposit only( for it ma5es no distinction as to whether the chec5s within its contemplation are issued in payment of an obli3ation or merely to 3uarantee the said obli3ation and the history of its enactment evinces the definite le3islative intent to ma5e the prohibition all-embracin3. (Ibasco vs -A(
%E$E%', ACTUAL @NOWLEDGE O) INSU))ICIENCO) )UNDS ESSENTIAL IN BP 22

36

Mnowled3e of insufficiency of funds or credit in the drawee ban5 for the payment of a chec5 upon its presentment is an essential element of the offense. 4here is a prima facie presumption of the e1istence of this element from the fact of drawin3( issuin3 or ma5in3 a chec5( the payment of which was subsequently refused for insufficiency of funds. It is important to stress( however( that this is not a conclusive presumption that forecloses or precludes the presentation of evidence to the contrary. (Lim Lao v -A; 'E#&E%7,
W(EN LAC@ O) @NOWLEDGE AND LAC@ O) POWER TO )UND T(E C(EC@S IN CASES O) BP 22 A DE)ENSE

After a thorou3h review of the case at bar( the -ourt finds that Petitioner Lina Lim Lao did not have actual 5nowled3e of the insufficiency of funds in the corporate accounts at the time she affi1ed her si3nature to the chec5s involved in this case( at the time the same were issued( and even at the time the chec5s were subsequently dishonored by the drawee ban5. 4he scope of petitioner2s duties and responsibilities did not encompass the fundin3 of the corporation2s chec5s; her duties were limited to the mar5etin3 department of the @inondo branch. 0nder the or3aniBational structure of Premiere 9inancin3 -orporation( fundin3 of chec5s was the sole responsibility of the 4reasury Aepartment. (Lim Lao v -A; 'E#&E%7
LAC@ O) ADE0UATE NOTICE O) DIS(ONOR! A DE)ENSE

4here can be no prima facie evidence of 5nowled3e of insufficiency of funds in the instant case because no notice of dishonor was actually sent to or received by the petitioner. 4he notice of dishonor may be sent by the offended party or the drawee ban5. 4he trial court itself found absent a personal notice of dishonor to Petitioner Lina Lim Lao by the drawee ban5 based on the unrebutted testimony of >campo /(t,hat the chec5s bounced when presented with the drawee ban5 but she did not inform anymore the @inondo branch and Lina Lim Lao as there was no need to inform them as the 37

corporation was in distress./ 4he -ourt of Appeals affirmed this factual findin3. Pursuant to prevailin3 <urisprudence( this findin3 is bindin3 on this -ourt. (Lim Lao v -A; 'E#&E%7,
T(E PENALT- O) IMPRISONMENT IN CASES ,IOLATION O) B.P. 22 WAS NOT DELETED. O)

A word on the modified penalty imposed by the !4-. -ontrary to its reasonin3( the penalty of imprisonment in cases of violation of @.P. ## was not deleted. As clarified by Administrative -ircular ";-#&&"( the clear tenor and intention of Administrative -ircular "#-#&&& is not to remove imprisonment as an alternative penalty( but to lay down a rule of preference in the application of the penaltie provided for in @.P. ##.
(2ernardo vs. People) G.R. .o. "33$45) April 6) 7558%

T(E 53.DA- PERIOD IS NOT AN ELEMENT O) T(E O))ENSE

In 8on3 v. -ourt of Appeals( the -ourt ruled that the %&-day period provided in the law is not an element of the offense. :either does it dischar3e petitioner from his duty to maintain sufficient funds in the account within a reasonable time from the date indicated in the chec5. Accordin3 to current ban5in3 practice( the reasonable period within which to present a chec5 to the drawee ban5 is si1 months. 4hereafter( the chec5 becomes stale and the drawer is dischar3ed from liability thereon to the e1tent of the loss caused by the delay. (Arceo) Jr. vs. People) G.R. .o. " 73 ") July "8) 755$%
,IOLATION O) B.P. 22

8here a creditor has collected more than a sufficient amount to cover the value of the chec5s( char3in3 the debtor with a criminal offense under the @ouncin3 chec5s Law Q a lon3 time after the collection is no lon3er tenable nor <ustified by law or equitable consideration Q is not a Niolation of @P ##. (Cru0 vs. Cru0) G.R. .o. "# "74) February 4) 7558% 8hile indeed the 3ravamen of violation of @.P. @l3. ## is the act of issuin3 worthless chec5s( considerin3 that( in this case(

38

petitioner had paid the amount of the chec5 even before respondent filed his complaint( we believe and so hold that no in<ury was caused to the public interests or the ban5in3 system( or specifically to herein respondent. Q8hile indeed the 3ravamen of violation of @.P. @l3. ## is the act of issuin3 worthless chec5s( nonetheless( courts should not apply the law strictly or harshly. Its spirit and purpose must be considered. In LoBano v. =artineB ("6' S-!A ;#;, we held that the @ouncin3 -hec5s Law is aimed at puttin3 a stop to or curbin3 the practice of issuin3 worthless chec5s or those that end up bein3 dishonored for payment because of the in<ury it causes to the public interests. In Sia v. People (6#+ S-!A #&', we e1plained that the law is intended to safe3uard the interests of the ban5in3 system and the le3itimate chec5in3 account users. -onsiderin3 that petitioner had paid the amount of the chec5 even before respondent filed his complaint( we believe and so hold that no in<ury was caused to the public interests or the ban5in3 system( or specifically to herein respondent. (Cru0 vs. Cru0) G.R. .o. "# "74) February 4) 7558%
BP 22 INCLUDES T(E MA@ING AND ISSUANCE O) A C(EC@ B- ONE W(O (AS NO ACCOUNT WIT( A BAN@

4he law is broad enou3h to include( within its covera3e( the ma5in3 and issuance of a chec5 by one who has no account with a ban5( or where such account has already been closed when the chec5 was presented for payment. As the -ourt in LoBano e1plainedD J4he effect of the issuance of a wortheless chec5s transcends the private interests of the parties directly involved in the transaction and touches the interests of the community at lar3e. 4he mischief it creates is not only a wron3 to the payee or holder( but also an in<ury to the public. 4he harmful practice of puttin3 valueless commercial papers in circulation( multiplied a thousandfold( can very well pollute the channels of trade and commerce( in<ure the ban5in3 system and eventually hurt the welfare of society and the public interest.K -onsiderin3 that the law imposes a penal sanction on one who draws and issues a worthless chec5s a3ainst insufficient funds or a closed account in the drawee ban5( there is li5ewise( every reason to

39

penaliBe a person who indul3es in the ma5in3 and issuin3 of a chec5 on an account belon3in3 to another with the latter*s consent( which account has been closed or has no funds or credit with the drawee ban5. (Rui0 vs. People) G.R. .o. "354$6) .ovember "4) 755#%
*'2A*DO #UA* ! "#. P OPL ).*. 192593( J5ne 1/( 200, O$ %& P&'L'PP'N #(

4o commit a violation of @.P. @l3. ##( the followin3 elements must be present and provedD ". the ma5in3( drawin3 and issuance of any chec5 to apply for account or for value; #. the 5nowled3e of the ma5er( drawer( or issuer that at the time of issue he does not have sufficient funds in or credit with the drawee ban5 for the payment of such chec5 in full upon its presentment; and 3. the subsequent dishonor of the chec5 by the drawee ban5 for insufficiency of funds or credit or dishonor for the same reason had not the drawer( without any valid cause( ordered the ban5 to stop payment. @.P. @l3. ## creates a presumption of 5nowled3e of insufficiency of funds under the followin3 circumstancesD Sec. #. Gvidence of 5nowled3e of insufficient funds. . 4he ma5in3( drawin3( and issuance of a chec5 payment of which is refused by the drawee because of insufficient funds or credit with such ban5( when presented within ninety days from the date of the chec5( shall be prima facie evidence of 5nowled3e of such insufficiency of funds or credit unless such ma5er or drawer pays the holder thereof the amount due thereon( or ma5es arran3ements for payment in full by the drawee of such chec5 within five ($, ban5in3 days after receivin3 notice that such chec5 has not been paid by the drawee.

40

4he presumption arises when it is proved that the issuer had received this notice( and that within five ban5in3 days from its receipt( he failed to pay the amount of the chec5 or to ma5e arran3ements for its payment. 4he full payment of the amount appearin3 in the chec5 within five ban5in3 days from notice of dishonor is a complete defense. Accordin3ly( procedural due process requires that a notice of dishonor be sent to and received by the petitioner to afford the opportunity to avert prosecution under @.P. @l3. ##.

JO&N DY "#. P OPL O$ %& 15,312( NO" 1B * 14( 200,

P&'L'PP'N #( ).*. NO.

4o be liable under Section " of 2.P. 2l,. 77( the chec5 must be dishonored by the drawee ban5 for insufficiency of funds or credit or dishonored for the same reason had not the drawer( without any valid cause( ordered the ban5 to stop payment. Si3nificantly( li5e Article ;"$ of the !evised Penal -ode( 2.P. 2l,. 77 also spea5s only of insufficiency of funds and does not treat of uncollected deposits. 4o repeat( we cannot interpret the law in such a way as to e1pand its provision to encompass the situation of uncollected deposits because it would ma5e the law more onerous on the part of the accused. A3ain( criminal statutes are strictly construed a3ainst the overnment and liberally in favor of the accused .

AN%'7)*A$% ; 2O**UP% P*A2%'2 # A2% (*A NO 301/)

ANTI.GRA)T AND CORRUPT PRACTICES ACT

Corrupt practices of public officers.

(a, Persuadin3( inducin3 or influencin3 another public officer

to perform an act constitutin3 a violation of rules and re3ulations duly promul3ated by competent authority or

41

an offense in connection with the official duties of the latter( or allowin3 himself to be persuaded( induced( or influenced to commit such violation or offense. (b, Airectly or indirectly requestin3 or receivin3 any 3ift( present( share( percenta3e( or benefit( for himself or for any other person( in connection with any contract or transaction between the overnment and any other part( wherein the public officer in his official capacity has to intervene under the law. (c, Airectly or indirectly requestin3 or receivin3 any 3ift( present or other pecuniary or material benefit( for himself or for another( from any person for whom the public officer( in any manner or capacity( has secured or obtained( or will secure or obtain( any overnment permit or license( in consideration for the help 3iven or to be 3iven( without pre<udice to Section thirteen of this Act. (d, Acceptin3 or havin3 any member of his family accept employment in a private enterprise which has pendin3 official business with him durin3 the pendency thereof or within one year after its termination. (e, -ausin3 any undue in<ury to any party( includin3 the overnment( or 3ivin3 any private party any unwarranted benefits( advanta3e or preference in the dischar3e of his official administrative or <udicial functions throu3h manifest partiality( evident bad faith or 3ross ine1cusable ne3li3ence. 4his provision shall apply to officers and employees of offices or 3overnment corporations char3ed with the 3rant of licenses or permits or other concessions. (f , :e3lectin3 or refusin3( after due demand or request( without sufficient <ustification( to act within a reasonable time on any matter pendin3 before him for the purpose of obtainin3( directly or indirectly( from any person interested in the matter some pecuniary or material benefit or advanta3e( or for the purpose of favorin3 his own interest or 3ivin3 undue advanta3e in favor of or discriminatin3 a3ainst any other interested party. (3, Gnterin3( on behalf of the overnment( into any contract or transaction manifestly and 3rossly disadvanta3eous to

42

the same( whether or not the public officer profited or will profit thereby. (h, Airector or indirectly havin3 financin3 or pecuniary interest in any business( contract or transaction in connection with which he intervenes or ta5es part in his official capacity( or in which he is prohibited by the -onstitution or by any law from havin3 any interest. (i, Airectly or indirectly becomin3 interested( for personal 3ain( or havin3 a material interest in any transaction or act requirin3 the approval of a board( panel or 3roup of which he is a member( and which e1ercises discretion in such approval( even if he votes a3ainst the same or does not participate in the action of the board( committee( panel or 3roup. Interest for personal 3ain shall be presumed a3ainst those public officers responsible for the approval of manifestly unlawful( inequitable( or irre3ular transaction or acts by the board( panel or 3roup to which they belon3. ( <, Mnowin3ly approvin3 or 3rantin3 any license( permit( privile3e or benefit in favor of any person not qualified for or not le3ally entitled to such license( permit( privile3e or advanta3e( or of a mere representative or dummy of one who is not so qualified or entitled. (5, Aivul3in3 valuable information of a confidential character( acquired by his office or by him on account of his official position to unauthoriBed persons( or releasin3 such information in advance of its authoriBed release date.
UNE*PLAINED WEALT(! MEANING

Prima facie evidence of and dismissal due to une1plained wealth. If in accordance with the provisions of !A ";7%( a public official has been found to have acquired durin3 his incumbency( whether in his name or in the name of other persons( an amount of property andEor money manifestly out of proportion to his salary and to his other lawful income( that fact shall be a 3round for dismissal or removal. Note: 0nsolicited 3ifts or presents of small or insi3nificant value shall be offered or 3iven as a mere ordinary to5en of

43

3ratitude or friendship accordin3 to local customs or usa3e shall be e1empted from the provision of this act.
MEANING O) ACAUSING UNDUE INJUR-B

4he act of 3ivin3 any private party any unwarranted benefit( advanta3e or preference is not an indispensable element of causin3 any undue in<ury to any part( althou3h there may be instances where both elements concur. (Santia3o vs architorena( et al.( # Aec. %;,. In 'e(oroda v 9andi,anbayan( the Supreme -ourt has ruled that the offender in causin3 undue in<ury does not refer only to those who are in char3e of 3ivin3 permits( licenses or concessions but all acts of public officers or employees which have caused undue in<ury to others.
ELEMENTS O) NEGLECT O) DUT- UNDER SEC. C O) RA C3$5

a. the offender is a public officer; b. the said officer has ne3lected or has refused to act without sufficient <ustification after due demand or request has been made upon him; c. reasonable time has elapsed from such demand or request without the public officer havin3 acted on the matter pendin3 before him; d. such failure to so act is for the purpose of obtainin3 directly or indirectly from any person interested in the matter some pecuniary or material benefit or advanta3e in favor of an interested party or discriminatin3 a3ainst another. -oronado v Sandi3anbayan.
W(ERE PUBLIC O))ICER ACTED WIT( MANI)EST PARTIALIT-! E,IDENT BAD )AIT(! OR INE*CUSABLE NEGLIGENCE

44

Sec. ;. -orrupt practices of public officers. - In addition to acts or omissions of public officers already penaliBed by e1istin3 law( the followin3 shall constitute corrupt practices of any public officer and are hereby declared to be unlawfulD 111 111 111

(e,. -ausin3 any undue in<ury to any party( includin3 the overnment( or 3ivin3 any private party any unwarranted benefits( advanta3e or preference in the dischar3e of his official administrative or <udicial functions throu3h manifest partiality( evident bad faith or 3ross ine1cusable ne3li3ence. 4his provision shall apply to officers and employees of offices or 3overnment corporations char3ed with the 3rant of licenses or permits or other concessions.
,IOLATION O) SECTION C DEE O) RA C3$5 RE0UIRES PROO) O) T(E )OLLOWING )ACTS! ,I1:

a. the accused is a public officer dischar3in3 administrative or official functions or private persons char3ed in conspiracy with them; b. the public officer committed the prohibited act durin3 the performance of his official duty or in relation to his public position; c. the public officer acted with manifest partiality evident bad faith or 3ross( ine1cusable ne3li3ence; and d. his action caused undue in<ury to the 3overnment or any private party( or 3ave any party any unwarranted benefit( advanta3e or preference to such parties.
CAUSING UNDUE INJUR- UNDER SEC. C! LETTER DeE O) RA C3$5. MEANING.

Section ; enumerates in eleven subsections the corrupt practices of any public officer declared unlawful. Its reference to any public officer is without distinction or qualification and it specifies the acts declared unlawful. 8e a3ree with the view adopted by the Solicitor eneral that the last inclusion of 45

officers and employees of offices or 3overnment corporations which( under the ordinary concept of Jpublic officerK may not come within the term. It is a strained construction of the provision to read it as applyin3 e1clusively to public officers char3ed with the duty of 3rantin3 license or permits or other concessions. (=e<orada v. Sandi3anbayan( "$" S-!A ;%%,.
SUSPENSION UNDER R.A. C3$5 MANDATORBUT COURTS ARE ALLOWED TO DETERMINE W(ET(ER IN)ORMATION IS ,ALID OR NOT

It is well settled that Section "; of !A ;&"% ma5es it mandatory for the Sandi3anbayan (or the -ourt, to suspend any public officer a3ainst whom a valid information char3in3 violation of this law( @oo5 II( 4itle 7 of the !P-( or any offense involvin3 fraud upon 3overnment or public funds or property is filed in court. 4he court tryin3 a case has neither discretion nor duty to determine whether preventive suspension is required to prevent the accused from usin3 his office to intimidate witnesses or frustrate his prosecution or continue committin3 malfeasance in office. All that is required is for the court to ma5e a findin3 that the accused stands char3ed under a valid information for any of the abovedescribed crimes for the purpose of 3rantin3 or denyin3 the sou3ht for suspension. (@olasti3 vs. Sandi3anbayan( .!. :o. ""&$&; HAu3ust 6( "%%6I( #;$ S-!A "&;,.In the same case( the -ourt held that /as applied to criminal prosecutions under !A ;&"%( preventive suspension will last for less than ninety (%&, days only if the case is decided within that period; otherwise( it will continue for ninety (%&, days./ (-onducto v.
=onBon; A.=. :o. =4)-%+-""67( )uly #( "%%+,

PUBLIC O))ICER MA- BE SUSPENDED )ROM (IS PRESENT POSITION E,EN I) T(E CRIME W(IC( (E IS BEING C(ARGED WAS COMMITTED DURING (IS PRE,IOUS TERM

)ud3e =onBon2s contention denyin3 complainant2s =otion for Suspension because /offenses committed durin3 the previous term (is, not a cause for removal durin3 the present term/ is untenable. In the case of !odolfo G. A3uinaldo vs. ?on. Luis Santos and =elvin Nar3as( #"# S-!A 7'+( the -ourt held that /the rule is that a public official cannot be removed for administrative misconduct committed durin3 a prior term since his re-election to office operates as

46

a condonation of the officer2s previous misconduct committed durin3 a prior term( to the e1tent of cuttin3 off the ri3ht to remove him therefor. 4he fore3oin3 rule( however( finds no application to criminal cases . . ./ Li5ewise( it was specifically declared in the case of *n,co vs. 9anc-e0( .!. :o. L-#;##&( "+ Aecember "%'7( #" S-!A "#%#( that /4he rulin3( therefore( that 2when the people have elected a man to office it must be assumed that they did this with 5nowled3e of his life and character and that they disre3arded or for3ave his faults or misconduct if he had been 3uilty of any2 refers only to an action for removal from office and does not apply to a criminal case/ -learly( even if the alle3ed unlawful appointment was committed durin3 =a3hiran32s first term as baran3ay chairman and the =otion for his suspension was only filed in "%%$ durin3 his second term( his re-election is not a bar to his suspension as the suspension sou3ht for is in connection with a criminal case. (-onducto v. =onBon; A.=. :o. =4)%+-""67( )uly #( "%%+,
RE.ELECTION IN PUBLIC O))ICE E*TINGUIS(ING ONL- (IS ADMINISTRATI,E LIABILIT- BUT NOT (IS CRIMINAL LIABILIT-

As early as "+ Aecember "%'7 in *n,co v. 9anc-e0( "7 this -ourt e1plicitly ruled that the re-election of a public official e1tin3uishes only the administrative( but not the criminal( liability incurred by him durin3 his previous term of office( thusD 4he rulin3( therefore( that . /when the people have elected a man to his office it must be assumed that they did this with 5nowled3e of his life and character and that they disre3arded or for3ave his faults or misconduct if he had been 3uilty of any/ . refers only to an action for removal from office and does not apply to criminal case( because a crime is a public wron3 more atrocious in character than mere misfeasance or malfeasance committed by a public officer in the dischar3e of his duties( and is in<urious not only to a person or 3roup of persons but to the State as a whole. 4his must be the reason why

47

Article +% of the !evised Penal -ode( which enumerates the 3rounds for e1tinction of criminal liability( does not include reelection to office as one of them( at least insofar as a public officer is concerned. Also( under the -onstitution( it is only the President who may 3rant the pardon of a criminal offense. (-onducto v. =onBon; A.=. :o. =4)-%+-""67( )uly #( "%%+,
PRE.CONDITION O) SUSPENSION DPRE,ENTI,EE UNDER SEC. $C! RA C3$5

It is mandatory for the court to place under preventive suspension a public officer accused before it. Imposition of suspension( however( is not automatic or self-operative. A pre-condition thereof is the e1istence of a valid information( determined at a pre-suspension hearin3. Such a hearin3 is in accord with the spirit of the law( considerin3 the serious and far-reachin3 consequences of a suspension of a public official even before his conviction( and the demands of public interest for a speedy determination of the issues involved in the case. 4he purpose of the pre-suspension hearin3 is basically to determine the validity of the information and thereby furnish the court with a basis to either suspend the accused and proceed with the trial on the merits of the case( or refuse suspension of the latter and dismiss the case( or correct any part of the proceedin3 which impairs its validity. 4he accused should be 3iven adequate opportunity to challen3e the validity or re3ularity of the criminal proceedin3s a3ainst him; e.3. that he has not been afforded the ri3ht to due preliminary investi3ation; that the acts imputed to him do not constitute a specific crime (under !.A. ;&"% or the !evised Penal -ode, warrantin3 his mandatory suspension from office under Section "; of the Act; or that the information is sub<ect to quashal on any of the 3rounds set out in !ule ""7 of the !ules of -ourt. @ut once a proper determination of the validity of the information has been made( it becomes the ministerial duty of the court to forthwith issue the order of preventive suspension. 4he court has no discretion( for instance( to hold in abeyance the suspension of the accused official on the prete1t that the order denyin3 the latter2s motion to quash is pendin3 review before the appellate courts. (Se3ovia v. Sandi3anbayan; ! "#6&'7( =ar. #7( "%%+,

48

GUIDELINES TO BE )OLLOWED IN PRE,ENTI,E SUSPENSION CASES

/In the leadin3 case of Luciano) et al. vs. 'ariano( et al. (L-;#%$&( )uly ;&( "%7"( 6& S-!A "+7,( we have set out the 3uidelines to be followed by the lower courts in the e1ercise of the power of suspension under Section "; of the law( to witD (c, @y way of broad 3uidelines for the lower courts in the e1ercise of the power of suspension from office of public officers char3ed under a valid information under the provisions of !epublic Act :o. ;&"% or under the provisions of the !evised Penal -ode on bribery( pursuant to section "; of said Act( it may be briefly stated that upon the filin3 of such information( the trial court should issue an order with proper notice requirin3 the accused officer to show cause at a specific date of hearin3 why he should not be ordered suspended from office pursuant to the cited mandatory provisions of the Act. 8here either the prosecution seasonably files a motion for an order of suspension or the accused in turn files a motion to quash the information or challen3es the validity thereof( such show-cause order of the trial court would no lon3er be necessary. 8hat is indispensable is that the trial court duly hear the parties at a hearin3 held for determinin3 the validity of the information( and thereafter hand down its rulin3( issuin3 the correspondin3 order of suspension should it uphold the validity of the information or withhold such suspension in the contrary case. (d, :o specific rules need be laid down for such pre-suspension hearin3. Suffice it to state that the accused should be 3iven a fair and adequate opportunity to challen3e the validity of the criminal proceedin3s a3ainst him( e.3.( that he has not been afforded the ri3ht of due preliminary investi3ation( the act for which he stands char3ed do not constitute a violation of the provisions of !epublic Act :o. ;&"% or of the bribery provisions of the !evised Penal -ode which would warrant his mandatory suspension from

49

office under Section "; of the Act( or he may present a motion to quash the information on any of the 3rounds provided in !ule ""7 of the !ules of -ourt. 4he mandatory suspension decreed by the act upon determination of the pendency in court or a criminal prosecution for violation of the Anti- raft Act or for bribery under a valid information requires at the same time that the hearin3 be e1peditious( and not unduly protracted such as to thwart the prompt suspension envisioned by the Act. ?ence( if the trial court( say( finds the 3round alle3ed in the quashal motion not to be indubitable( then it shall be called upon to issue the suspension order upon its upholdin3 the validity of the information and settin3 the same for trial on the merits.2 (Se3ovia v. Sandi3anbayan,

W(EN MA- A PUBLIC O))ICER BE LIABLE )OR CAUSING UNDUE INJURUNDER SEC. CDeE o9 RA C3$5

111

111

111

(c, -ausin3 any undue in<ury to any party( includin3 the overnment( or 3ivin3 any private party any unwarranted benefits( advanta3e or preference in the dischar3e of his official( administrative or <udicial functions throu3h manifest partiality( evident bad faith or 3ross ine1cusable ne3li3ence. 4his provision shall apply to officers and employees of offices or 3overnment corporations char3ed with the 3rant of licenses or permits or other concessions./ 4o hold a person liable under this section( the concurrence of the followin3 elements must be established beyond reasonable doubt by the prosecutionD (", (#, (;, J4hat the accused is a public officer or a private person char3ed in conspiracy with the former; 4hat said public officer commits the prohibited acts durin3 the performance of his or her official duties or in relation to his or her public positions; 4hat he or she causes undue in<ury to any party( whether the 3overnment or a private party; and

50

(6, 4hat the partiality( ne3li3ence./

public officer has acted with manifest evident bad faith or 3ross ine1cusable
(Llorente v. Sandi3anbayan; ! "##"''( =ar. ""( "%%+,

MEANING O) BAD )AIT( UNDER SECTION CDeE O) RA C3$5

/2ad fait- does not simply connote bad <ud3ment or ne3li3ence; it imputes a dishonest purpose or some moral obliquity and conscious doin3 of a wron3; a breach of sworn duty throu3h some motive or intent or ill will; it parta5es of the nature of fraud. (Spie3el v @eacon Participations( + :G #nd Series +%$( "&&7,. It contemplates a state of mind affirmatively operatin3 with furtive desi3n or some motive of self interest or ill will for ulterior purposes (Air 9rance v. -arrascoso( "+ S-!A "$$( "''-"'7,. Gvident bad faith connotes a manifest deliberate intent on the part of the accused to do wron3 or cause dama3e./ In Jacinto( evident bad faith was not appreciated because the actions ta5en by the accused were not entirely without rhyme or reason; he refused to release the complainant2s salary because the latter failed to submit her daily time record; he refused to approve her sic5-leave application because he found out that she did not suffer any illness; and he removed her name from the plantilla because she was moonli3htin3 durin3 office hours. Such actions were measures ta5en by a superior a3ainst an errin3 employee who studiously i3nored( if not defied( his authority.
(Llorente v. Sandi3anbayan,

W(EN O))ENDER IS NOT LIABLE UNDER SEC. CDeE BUT UNDER SEC. D9E O) RA C3$5

It would appear that petitioner2s failure or refusal to act on the complainant2s vouchers( or the delay in his actin3 on them more properly falls under Sec. ;HfID
/(f, :e3lectin3 or refusin3( after due demand or request( without sufficient <ustification( to act within a reasonable time on any matter pendin3 before him for the purpose of obtainin3( directly or indirectly( from any person

51

interested in the matter some pecuniary or material benefit or advanta3e( or for purpose of favorin3 his own interest or 3ivin3 undue advanta3e in favor of or discriminatin3 a3ainst any other interested party./

?ere( the ne3lect or refusal to act within a reasonable time is the criminal act( not the causin3 of undue in<ury. 4hus( its elements areD /", 4he offender is a public officer;
#, Said officer has ne3lected or has refused to act without sufficient <ustification after due demand or request has been made on him; !easonable time has elapsed from such demand or request without the public officer havin3 acted on the matter pendin3 before him; and Such failure to so act is 2for the purpose of obtainin3( directly or indirectly( from any person interested in the matter some pecuniary or material benefit or advanta3e in favor of an interested party( or discriminatin3 a3ainst another./

;,

6,

?owever( petitioner is not char3ed with a violation of Sec. ;HfI. ?ence( further disquisition is not proper. :either may this -ourt convict petitioner under Sec. ;HfI without violatin3 his constitutional ri3ht to due process.

(Llorente v. Sandiganbayan)
SUSPPENSION DPRE,ENTI,EE O) LOCAL O))ICIALS S(ALL ONLBE )OR 63 DA-S

>n the other hand( we find merit in petitioner2s second assi3ned error. 4he Sandi3anbayan erred in imposin3 a %& day suspension upon petitioner for the sin3le case filed a3ainst him. 0nder Section '; (b, of the Local overnment -ode( /any sin3le preventive suspension of local elective officials shall not e1tend beyond si1ty ('&, days./
(!ios v. Sandi3anbayan; ! "#%%";( Set. #'( "%%7,

52

APPRO,AL O) LEA,E O) ABSENCE NOT A BAR TO SUSPENSION

Since the petitioner is an incumbent public official char3ed in a valid information with an offense punishable under the -onstitution and the laws (!A ;&"% and PA +&7,( the law2s command that he /shall be suspended from office/ pendente lite must be obeyed. ?is approved leave of absence is not a bar to his preventive suspension for as indicated by the Solicitor eneral( an approved leave( whether it be for a fi1ed or indefinite period( may be cancelled or shortened at will by the incumbent. (Aoromal v. Sandi3anbayan; ! +$6'+(
Sepr. 7( "%+%, UNDUE DELA- IN PRELIMINARIN,ESTIGATIONS ,IOLATI,E O) DUE PROCESS AND A GROUND TO DISMISS

After a careful review of the facts and circumstances of this case( we are constrained to hold that the inordinate delay in terminatin3 the preliminary investi3ation and filin3 the information in the instant case is violative of the constitutionally 3uaranteed ri3ht of the petitioner to due process and to a speedy disposition of the cases a3ainst him. Accordin3ly( the informations in -riminal -ases :os. "&6%%( "&$&&( "&$&"( "&$&# and "&$&; should be dismissed. In view of the fore3oin3( we find it unnecessary to rule on the other issues raised by petitioner. (4atad v. Sandi3anbayan, SECTION CDBE! RA C3$5 ELEMENTS ". 4he offender is a public officer #. 8ho requested or received a 3ift( a present( a share( a percenta3e( or a benefit ;. >n behalf of the offender or any other person 6. In connection with a contract or transaction with the 3overnment $. In which the public officer( in an official capacity under the law( has the ri3ht to intervene.
(Garcia vs. 9andi,anbayan) G.R. .o. "###8 ) .ovember 75) 7553%

53

SECTION CD#E o9 #e An i.Gra9 La:

ESSENTIAL ELEMENTS

". 4he accused is a public officer; #. ?e has a direct or indirect financial or pecuniary interest in any business( contract or transaction; ;. ?e eitherD a. Intervenes or ta5es part in his official capacity in connection with such interest; or b. Is prohibited from havin3 such interest by the -onstitution or by law.

TWO MODES B- W(IC( A PUBLIC O))ICER MA- ,IOLATE SEC. CD(E O) RA C3$5

In other words( there are two modes by which a public officer who has a direct or indirect financial or pecuniary interest in any business contract or transaction may violate Sec. ;(h, of !A ;&"%. 4he first mode is when the public officer intervenes or ta5es part in his official capacity in connection with his financial or pecuniary interest in any business( contract or transaction. 4he second mode is when he is prohibited from havin3 such an interest by the -onstitution or by law. (&omin,o vs. 9andi,anbayan) G.R. " $"8#) :ctober 7#) 755#%
T(E PRESCRIPTI,E PERIOD )OR T(E O))ENSES S(OULD BE COMPUTED )ROM T(E DISCO,ER- O) T(E COMMISSION T(EREO)

4he issue of prescription has lon3 been laid to rest in the aforementioned Presidential Ad 1oc Fact-Findin, Committee on 2e-est Loans v. &esierto ( where the -ourt heldD
1 1 1 it was well-ni3h impossible for the State( the a33rieved party( to have 5nown the violations of !.A. :o. ;&"% at the time the questioned transactions

54

were made because( as alle3ed( the public officials concerned connived or conspired with the /beneficiaries of the loans.2 4hus( we a3ree with the ->==I44GG that the prescriptive period for the offenses with which respondents in >=@-&-%'-&%'+ were char3ed should be computed from the discovery of the commission thereof and not from the day of such commission. 4he assertion by the >mbudsman that the phrase 2if the same not be 5nown2 in Section # of Act :o. ;;#' does not mean 2lac5 of 5nowled3e2 but that the crime 2is not reasonably 5nowable2 is unacceptable( as it provides an interpretation that defeats or ne3ates the intent of the law( which is written in a clear and unambi3uous lan3ua3e and thus provides no room for interpretation but only application.

As to when the period of prescription was interrupted( the second para3raph of Section #( Act :o. ;;#'( as amended( provides that prescription is interrupted 2when proceedin3s are instituted a3ainst the 3uilty person. !ecords show that the act complained of was discovered in "%%#. 4he complaint was filed with the >ffice of the >mbudsman on April $( "%%$( or within three (;, years from the time of discovery. 4hus( the filin3 of the complaint was well within the prescriptive period of "$ years. (PCGG vs. &esierto) G.R. .o. " 576") July $) 7558% JU*'#P*UD N2 <
L'NDA 2AD'AO7PALA2'O# "#. P OPL ( ).*. NO. 1+,544( 1A*2& 31( 200/

Section ;(b, penaliBes three distinct acts Q ", demandin3 or requestin3; #, receivin3; or ;, demandin3( requestin3 and receivin3 Q any 3ift( present( share( percenta3e( or benefit for oneself or for any other person( in connection with any contract or transaction between the 3overnment and any other party( wherein a public officer in an official capacity has to intervene under the law. Gach of these modes of committin3 the offense is distinct and different from one another. Proof of e1istence of any of them suffices to warrant conviction.

55

P OPL

"#. *O1UALD !( ).*. NO. 1++510( AP*'L 2/( 200/

4he initial filin3 of the complaint in "%+% or the preliminary investi3ation by the Pthat preceded it could not have interrupted the fifteen ("$,-year prescription period under !ep. Act :o. ;&"%. As held in Cru0) Jr. v. 9andi,anbayan) the investi3atory power of the Pe1tended only to alle3ed ill-3otten wealth cases( absent previous authority from the President for the Pto investi3ate such 3raft and corruption cases involvin3 the =arcos cronies. Accordin3ly( the preliminary investi3ation conducted by the Pleadin3 to the filin3 of the first information is void ab initio( and thus could not be considered as havin3 tolled the fifteen ("$,-year prescriptive period( notwithstandin3 the 3eneral rule that the commencement of preliminary investi3ation tolls the prescriptive period. After all( a void ab initio proceedin3 such as the first preliminary investi3ation by the Pcould not be accorded any le3al effect by this -ourt. 4he rule is that for criminal violations of !ep. Act :o. ;&"%( the prescriptive period is tolled only when the >ffice of the >mbudsman receives a complaint or otherwise initiates its investi3ation. As such preliminary investi3ation was commenced more than fifteen ("$, years after the imputed acts were committed( the offense had already prescribed as of such time. 2ond5cto 3. 1on6on= A.1. No. 1%J7/,71149( J5>y 2( 1//,) D=ee al=o =e". $CE In 'e(oroda v 9andi,anbayan) the Supreme -ourt has ruled that the offender in causin3 undue in<ury does not refer only to those who are in char3e of 3ivin3 permits licenses or concessions but all acts of public officers or employees which have caused undue in<ury to others. It is well settled that Section "; of !A ;&"% ma5es it mandatory for the Sandi3anbayan (or the -ourt, to suspend any public officer a3ainst whom a valid information char3in3 violation of this law( @oo5 II( 4itle 7 of the !P-( or any offense involvin3 fraud upon 3overnment or public funds or property is filed in court. 4he court tryin3 a case has neither discretion nor duty to determine whether preventive suspension is required to prevent the accused from usin3 his 56

office to intimidate witnesses or frustrate his prosecution or continue committin3 malfeasance in office. All that is required is for the court to ma5e a findin3 that the accused stands char3ed under a valid information for any of the above-described crimes for the purpose of 3rantin3 or denyin3 the sou3ht for suspension. (@olasti3 vs. Sandi3anbayan( .!. :o. ""&$&; (Au3ust 6( "%%6, #;$ S-!A "&;,. In the same case( the -ourt held that Jas applied to criminal prosecutions under !A ;&"%( preventive suspension will last for less than ninety (%&, days only if the case is decided within the period; otherwise( it will continue for ninety (%&, days. 2ond5cto 3. 1on6on) (7$" scra 3"$% Li5ewise( it was specifically declared in the case of *n,co vs. 9anc-e0) .!. :o. L-#;##&( "+ Aecember "%'7( #" S-!A "#%#( that J4he rulin3( therefore( that Rwhen the people have elected a man to office it must be assumed that they did this with 5nowled3e of his life and character and that they disre3arded or for3ave his faults or misconduct if he had been 3uilty of any* refers only to an action for removal from office and does not apply to a criminal caseK -learly( even if the alle3ed unlawful appointment was comm.itted durin3 the =a3hiran3*s first term as baran3ay chairman and the =otion for his suspension was only filed in "%%$ durin3 his second term( his re-election is not a bar to his suspension as the suspension sou3ht for is in connection with a criminal case.
D A%& P NAL%Y LA. (*A 9+5/) PROSTITUTES CAN BE A ,ICTIM O) RAPE

As to the su33estion that A:ALILA was a prostitute( that alone( even if it be conceded( cannot absolve him of his liability for rape. 9irst( prostitutes can be victims of rape. (People v. Alfeche,

57

REASON W(- DWELLING IS AN AGGRA,ATING CIRCUMSTANCE

Awellin3 is considered an a33ravatin3 circumstance because primarily of the sanctity of privacy the law accords to human abode. 4he dwellin3 need not be owned by the victim. 4hus( in People v. 2asa( dwellin3 was appreciated( althou3h the victims were 5illed while sleepin3 as 3uests in the house of another. As aptly stated in People v. 2alansitD /H>Ine does not lose his ri3ht of privacy where he is offended in the house of another because as HanI invited 3uest Hor a housemaid as in the instant caseI( he( the stran3er( is sheltered by the same roof and protected by the same intimacy of life it affords. It may not be his house( but it is( even for a brief moment( /home/ to him. ?e is entitled to respect even for that short moment./ (People v. Alfeche,
W(EN RELATIONS(IP IS NOT AN ALTERNATI,E CIRCUMSTANCE UNDER ART. $7 O) T(E RPC

-learly then( the father-dau3hter relationship in rape cases( or between accused and !elanne( in this case( has been treated by -on3ress in the nature of a special circumstance which ma5es the imposition of the death penalty mandatory. ?ence( relationship as an alternative circumstance under Article "$ of the !evised Penal -ode( appreciated as an a33ravatin3 circumstance( should no lon3er be applied in view of the amendments introduced by !.A. :o. 7'$%. It may be pointed( however( that without the fore3oin3 amendment( relationship would still be an a33ravatin3 circumstance in the crimes of rape (Article ;;$, and acts of lasciviousness (Article ;;',. $7 If relationship in the instant case were to be appreciated under Article "$ of the !evised Penal -ode( the penalty imposable on accused then would not be death( but merely reclusion perpetua for( assumin3 that !elanne2s testimony in court would have confirmed what she narrated in her sworn statement (G1hibit /-/,( no circumstance then attended the commission of the rape which could brin3 the crime under any provision of Article ;;$ which imposes a

58

penalty hi3her than reclusion perpetua or of reclusion perpetua to death. (People v. =anyuhod( )r.,
W(EN O))ENDER IS STEP GRANDPARENT! (E IS NOT CONSIDERED AN ASCENDANT UNDER RA &C7C AND RA F675

4he trial court has thus held incorrectly in considerin3 appellant( who is le3ally married to !o1an2s natural 3randmother( as amon3 those named in the enumeration. Appellant is merely a step-3randparent who obviously is neither an /ascendant/ nor a /step-parent/ of the victim. In the recent case of People vs. Atop( #6 the -ourt re<ected the application of the mandatory death penalty to the rape of a "#-year old victim by the common-law husband of the 3irl2s 3randmother. 4he -ourt saidD
/It is a basic rule of statutory construction that penal statutes are to be liberally construed in favor of the accused. -ourt2s must not brin3 cases within the provision of a law which are not clearly embraced by it. :o act can be pronounced criminal which is not clearly made so by statute; so( too( no person who is not clearly within the terms of a statute can be brou3ht within them. Any reasonable doubt must be resolved in favor of the accused./
(People v. Aeleverio,

RECLUSION PERPETUA IS LIG(TER T(AN LI)E IMPRISONMENT AND I) ONE IS SENTENCED TO LI)E IMPRISONMENT AND LATER IMPOSED RECLUSION PERPETUA TO SAME O))ENSE! T(E PENALT- T(AT S(OULD BE IMPOSED IS RECLUSION PERPETUA

Since reclusion perpetua is a li3hter penalty than life imprisonment( and considerin3 the rule that criminal statutes with a favorable effect upon the accused have( as to him( a retroactive effect( the penalty imposable upon the accused should be reclusion perpetua and not life imprisonment.
(People v. Latura,

JUSTI)ICATION )OR T(E IMPOSITION O) T(E DEAT( PENALT-

59

Althou3h its ori3ins seem lost in obscurity( the imposition of death as punishment for violation of law or custom( reli3ious or secular( is an ancient practice. 8e do 5now that our forefathers 5illed to aven3e themselves and their 5in and that initially( the criminal law was used to compensate for a wron3 done to a private party or his family( not to punish in the name of the state. 4he dawnin3 of civiliBation brou3ht with it both the increasin3 sensitiBation throu3hout the later 3enerations a3ainst past barbarity and the institutionaliBation of state power under the rule of law. 4oday every man or woman is both an individual person with inherent human ri3hts reco3niBed and protected by the state and a citiBen with the duty to serve the common weal and defend and preserve society. >ne of the indispensable powers of the state is the power to secure society a3ainst threatened and actual evil. Pursuant to this( the le3islative arm of 3overnment enacts criminal laws that define and punish ille3al acts that may be committed by its own sub<ects( the e1ecutive a3encies enforce these laws( and the <udiciary tries and sentences the criminals in accordance with these laws. Althou3h penolo3ists( throu3hout history( have not stopped debatin3 on the causes of criminal behavior and the purposes of criminal punishment( our criminal laws have been perceived as relatively stable and functional since the enforcement of the !evised Penal -ode on )anuary "( "%;#( this notwithstandin3 occasional opposition to the death penalty provisions therein. 4he !evised Penal -ode( as it was ori3inally promul3ated( provided for the death penalty in specified crimes under specific circumstances. As early as "++'( thou3h( capital punishment had entered our le3al system throu3h the old Penal -ode( which was a modified version of the Spanish Penal -ode of "+7&. (People v. Gche3aray,
W(- DEAT( PENALT- IS NOT A CRUEL AND UNUSUAL PUNIS(MENT

/4he penalty complained of is neither cruel( un<ust nor e1cessive. In G1-parte Memmler( ";' 0.S.( 6;'( the 0nited

60

States Supreme -ourt said that 2punishments are cruel when they involve torture or a lin3erin3 death( but the punishment of death is not cruel( within the meanin3 of that word as used in the constitution. It implies there somethin3 inhuman and barbarous( somethin3 more than the mere e1tin3uishment of life.2/ Jas lon3 as that penalty remains in the statute boo5s( and as lon3 as our criminal law provides for its imposition in certain cases( it is the duty of <udicial officers to respect and apply the law re3ardless of their private opinions(/ and this we have reiterated in the "%%$ case of People v. Neneracion. (People v. Gche3aray,

DEAT( PENALT- WAS NOT ABOLIS(ED BUT MEREL- SUSPENDED

A readin3 of Section "% (", of Article III will readily show that there is really nothin3 therein which e1pressly declares the abolition of the death penalty. 4he provision merely says that the death penalty shall not be imposed unless for compellin3 reasons involvin3 heinous crimes the -on3ress hereafter provides for it and( if already imposed( shall be reduced to reclusion perpetua. 4he lan3ua3e( while rather aw5ward( is still plain enou3h/. (People v. Gche3aray,
DE)INITION O) (EINOUS CRIMES

/. . . the crimes punishable by death under this Act are heinous for bein3 3rievous( odious and hateful offenses and which( by reason of their inherent or manifest wic5edness( viciousness( atrocity and perversity are repu3nant and outra3eous to the common standards and norms of decency and morality in a <ust( civiliBed and ordered society./ (People v. Gche3aray,
W(AT ARE T(E CRIMES PUNIS(ABLE B- RECLUSION PERPETUA TO DEAT( UNDER RA F675

0nder !.A. :o. 7'$%( the followin3 crimes are penaliBed by reclusion perpetua to deathD

61

(",
(#, (;, (6, ($, (',

(7, (+,

(%,

("&, ("", ("#, (";, ("6, ("$, ("', ("7, ("+,

4reason (Sec. #,; Pualified piracy (Sec. ;,; Parricide (Sec. $,; =urder (Sec. ',; Infanticide (Sec. 7,; Midnappin3 and serious ille3al detention if attended by any of the followin3 four circumstancesD (a, the victim was detained for more than three days; (b, it was committed simulatin3 public authority; (c, serious physical in<uries were inflicted on the victim or threats to 5ill him were made; and (d, if the victim is a minor( e1cept when the accused is any of the parents( female or a public officer (Sec. +,; !obbery with homicide( rape or intentional mutilation (Sec. %,; Aestructive arson if what is burned is (a, one or more buildin3s or edifice; (b, a buildin3 where people usually 3ather; (c, a train( ship or airplane for public use; (d, a buildin3 or factory in the service of public utilities; (e, a buildin3 for the purpose of concealin3 or destroyin3 evidence >r a crime; (f, an arsenal( firewor5s factory( or 3overnment museum; and (3, a storehouse or factory of e1plosive materials located in an inhabited place; or re3ardless of what is burned( if the arson is perpetrated by two or more persons (Sec. "&,; !ape attended by any of the followin3 circumstancesD (a, the rape is committed with a deadly weapon; (b, the rape is committed by two or more persons; and (c, the rape is attempted or frustrated and committed with homicide (Sec. "",; Plunder involvin3 at least P$& million (Sec. "#,; Importation of prohibited dru3s (Sec. ";,; Sale( administration( delivery( distribution( and transportation of prohibited dru3s (id.,; =aintenance of den( dive or resort for users of prohibited dru3s (id.,; =anufacture of prohibited dru3s (id.,; Possession or use of prohibited dru3s in certain specified amounts (id.,; -ultivation of plants which are sources of prohibited dru3s (id., Importation of re3ulated dru3s (Sec. "6,; =anufacture of re3ulated dru3s (id.,;

62

("%, (#&, (#", (##, (#;, (#6,

Sale( administration( dispensation( delivery( transportation( and distribution of re3ulated dru3s (id.,; =aintenance of den( dive( or resort for users of re3ulated dru3s (Sec. "$,; Possession or use of re3ulated dru3s in specified amounts (Sec. "',; =isappropriation( misapplication or failure to account dan3erous dru3s confiscated by the arrestin3 officer (Sec. "7,; Plantin3 evidence of dan3erous dru3s in person or immediate vicinity of another to implicate the latter (Sec. "%,; and -arnappin3 where the owner( driver or occupant of the carnapped motor vehicle is 5illed or raped (Sec. #&,.
(People v. Gche3aray,

W(AT ARE T(E MANDATORCRIMES PUNIS(ABLE B- MANDATORDEAT( PENALT- UNDER RA F675

>n the other hand( under !.A. :o. 7'$%( the mandatory penalty of death is imposed in the followin3 crimesD
("%

;ualified bribery

/If any public officer is entrusted with law enforcement and he refrains from arrestin3 or prosecutin3 an offender who has committed a crime punishable by reclusion perpetua andEor death in consideration of any offer( promise( 3ift or present( he shall suffer the penalty for the offense which was not prosecuted. If it is the public officer who as5s or demands such 3ift or present( he shall suffer the penalty of death./ (Sec. 6, (7% <idnappin, and serious ille,al detention for ransom resultin, in t-e deat- of t-e victim or t-e victim is raped) tortured or sub(ected to de-umani0in, acts /4he penalty shall be death where the 5idnappin3 or detention was committed for the purpose of ransom from the victim or any other person( even if none of the circumstances above-mentioned were present in the commission of the offense.

63

8hen the victim is 5illed or dies as a consequence of the detention or is raped( or is sub<ect to torture or dehumaniBin3 acts( the ma1imum penalty Hof deathI shall be imposed./ (Sec. +, (6% &estructive arson resultin, in deat-

/If as a consequence of the commission of any of the acts penaliBed under this Article( death results( the mandatory penalty of death shall be imposed./ (Sec. "&, ( % Rape =it- t-e victim becomin, insane) rape =it-omicide and >ualified /8hen by reason or on the occasion of the rape( the victim has become insane( the penalty shall be death. 111 111 111

8hen by reason or on the occasion of the rape( a homicide is committed( the penalty shall be death. 4he death penalty shall also be imposed if the crime of rape is committed with any of the followin3 attendant circumstancesD ". when the victim is under ei3hteen ("+, years of a3e and the offender is a parent( ascendant( step-parent( 3uardian( relative by consan3uinity or affinity within the third civil de3ree( or the common-law spouse of the parent or the victim. #. when the victim is under the custody of the police or military authorities. ;. when the rape is committed in full view of the husband( parent( any of the children or other relatives within the third de3ree of consan3uinity. 6. when the victim is a reli3ious or a child below seven (7, years old $. when the offender 5nows that he is afflicted with Acquired Immune Aeficiency Syndrome (AIAS, disease. 64

'. when committed by any member of the Armed 9orces of the Philippines or the Philippine :ational Police or any law enforcement a3ency. 7. when by reason or on the occasion of the rape( the victim has suffered permanent physical mutilation./ (Sec. "" , (#% 9ale) administration) delivery) distribution and transportation of pro-ibited dru,s =-ere t-e victim is a minor or t-e victim dies /:otwithstandin3 the provision of Section #& of this Act to the contrary( if the victim of the offense is a minor( or should a prohibited dru3 involved in any offense under this Section be the pro1imate cause of the death of victim thereof( the ma1imum penalty Hof deathI herein provided shall be imposed./ (Sec. ";, (3% 'aintenance of den) dive) or resort for users of pro-ibited dru,s =-ere t-e victim is a minor or t-e victim dies /:otwithstandin3 the provisions of Section #& of this Act to the contrary( the ma1imum of the penalty Hof deathI shall be imposed in every case where a prohibited dru3 is administered( delivered or sold to a minor who is allowed to use the same in such place. Should a prohibited dru3 be the pro1imate case of the death of a person usin3 the same in such den( dive or resort( the ma1imum penalty herein provided shall be imposed on the maintainer notwithstandin3 the provisions of Section #& of this Act to the contrary./ (Sec. ";, (8% 9ale) administration) dispensation) delivery) distribution and transportation of re,ulated dru,s =-ere t-e victim is a minor or t-e victim dies /:otwithstandin3 the provisions of Section #& of this Act to the contrary( if the victim of the offense is a minor( or should a re3ulated dru3 involved in any offense under this Section be the pro1imate cause of the death of a victim thereof( the ma1imum penalty Hof deathI herein provided shall be imposed./ (Sec. "6, 65

(4% 'aintenance of den) dive) or resort for users of re,ulated dru,s =-ere t-e victim is a minor or t-e victim dies /:otwithstandin3 the provisions of Section #& of this Act to the contrary( the ma1imum penalty Hof deathI herein provided shall be imposed in every case where a re3ulated dru3 is administered( delivered or sold to a minor who is allowed to use the same in such place. Should a re3ulated dru3 be the pro1imate cause of death of a person usin3 the same in such den( dive or resort( the ma1imum penalty herein provided shall be imposed on the maintainer notwithstandin3 the provisions of Section #& of this Act to the contrary./ (Sec. "$, ($% &ru, offenses if convicted are ,overnment officials) employees or officers includin, members of police a,encies and armed forces /4he ma1imum penalties Hof deathI provided for in Section ;( 6 (",( $(",( '( 7( +( %( ""("# and "; of Article II and Sections "6( "6-A( "6(",( "$A (",( "'( and "% of Article III Hof the Aan3erous Aru3s Act of "%7#I shall be imposed( if those found 3uilty or any of the same offenses are 3overnment officials( employees or officers includin3 members of police a3encies and the armed forces./ (Sec. "%, ("5% Plantin, of dan,erous dru,s as evidence in dru, offenses =it- t-e mandatory deat- penalty if convicted are ,overnment officials) employees or officers /Any such above 3overnment official( employee or officer who is found 3uilty of 2plantin32 any dan3erous dru3s punished in Section s ;( 6( 7( +( % and "; of Article II and Sections "6( "6-A( "$( and "' of Article III (of the Aan3erous Aru3s Act of "%7#, in the person or in the immediate vicinity of another as evidence to implicate the latter( shall suffer the same penalty as therein provided./ (Sec. "%, (""% *n all t-e crimes in RA. .o. 83#$ in t-eir >ualified form /8hen in the commission of the crime( advanta3e was ta5en by the offender of his public position( the penalty to be 66

imposed shall be in its ma1imum Hof deathI re3ardless of miti3atin3 circumstances. 4he ma1imum penalty Hof deathI shall be imposed if the offense was committed by any person who belon3s to an or3aniBedEsyndicated crime 3roup. An or3aniBedEsyndicated crime 3roup means a 3roup of two or more persons collaboratin3( confederatin3 or mutually helpin3 one another for purposes of 3ain in the commission of any crime./ (Sec. #;,
(People v. Gche3aray,

TWO INSTANCES W(EN DEAT( MABE IMPOSED W(EN CONSTRUED UNDER RA F675

4hus( construin3 !.A. :o. 7'$% in pari materia with the !evised Penal -ode( death may be imposed when (", a33ravatin3 circumstances attend the commission of the crime as to ma5e operative the provision of the !evised Penal -ode re3ardin3 the imposition of the ma1imum penalty; and (#, other circumstances attend the commission of the crime which indubitably characteriBe the same as heinous in contemplation of !.A. :o. 7'$% that <ustify the imposition of the death( albeit the imposable penalty is reclusion perpetua to death. (People v. Gche3aray,
W(- DEAT( PENALTIS IMPOSED ON (EINOUS CRIMES

4he death penalty is imposed in heinous crimes because the perpetrators thereof have committed unfor3ivably e1ecrable acts that have so deeply dehumaniBed a person or criminal acts with severely destructive effects on the national efforts to lift the masses from ab<ect poverty throu3h or3aniBed 3overnmental strate3ies based on a disciplined and honest citiBenry( and because they have so caused irreparable and substantial in<ury to both their victim and the society and a repetition of their acts would pose actual threat to the safety of individuals and the survival of 3overnment( they must be permanently prevented from doin3 so. At any rate( this court has no doubts as to the innate heinousness of the crime of rape( as we have held in the case of People v. -ristobal. (People v. Gche3aray,

67

W(- RAPE IS A (EINOUS CRIME

/!ape is the forcible violation of the se1ual intimacy of another person. It does in<ury to <ustice and charity. !ape deeply wounds the respect( freedom( and physical and moral inte3rity to which every person has a ri3ht. It causes 3rave dama3e that can mar5 the victim for life. It is always an intrinsically evil act . . . an outra3e upon decency and di3nity that hurts not only the victim but the society itself./ (People v. Gche3aray,
W(- CAPITAL PUNIS(MENT S(OULD NOT BE ABOLIS(ED

/-apital punishment ou3ht not to be abolished solely because it is substantially repulsive( if infinitely less repulsive than the acts which invo5e it. Fet the mountin3 Beal for its abolition seems to arise from a sentimentaliBed hyperfastidiousness that see5s to e1pun3e from the society all that appears harsh and suppressive. If we are to preserve the humane society we will have to retain sufficient stren3th of character and will to do the unpleasant in order that tranquillity and civility may rule comprehensively. It seems very li5ely that capital punishment is a . . . necessary( if limited factor in that maintenance of social tranquillity and ou3ht to be retained on this 3round. 4o do otherwise is to indul3e in the lu1ury of permittin3 a sense of false delicacy to rei3n over the necessity of social survival./ (People v. Gche3aray,
RA 6%27 AS AMENDED B- RA F675 W(EN PENALT- IN NEW LAW NOT )A,ORABLE TO ACCUSED IT S(OULD BE RETAINED

Appellant in this case was convicted and meted the penalty of life imprisonment and fine of twenty thousand pesos under !A '6#$ for transportin3 more or less ' 5ilos of mari<uana on )uly "%%&. !A 7'$%( which too5 effect on Aecember ;"E%;( amended the provisions of !A '6#$( increasin3 the imposable penalty for the sale or transport of 7$& 3rams or more of mari<uana to reclusion perpetua to death and a fine ran3in3 from five hundred thousand pesos to ten million pesos. Such penalty is not favorable to the appellant as it carries the accessory penalties provided under 68

the !P- and has a hi3her amount of fine which in accordance with A!4 ## of the same code should not be 3iven retroactive effect. 4he court( therefore( finds and so holds that the penalty of life imprisonment and fine in the amount of twenty thousand pesos correctly imposed by the trial court should be retained. (PP v -arreon( "#E%E%7,
COURTS S(OULD NOT BE CONCERNED ABOUT WISDOM! E))ICAC- OR MORALITO) LAWS

It is a well settled rule that the courts are not concerned with the wisdom( efficacy or morality of laws. 4hat question falls e1clusively within the province of the Le3islature which enacts them and the -hief G1ecutive who approves or vetoes them. 4he only function of the <udiciary is to interpret the laws and( if not in disharmony with the -onstitution( to apply them. And for the 3uidance of the members of the <udiciary we feel it incumbent upon us to state that while they as citiBens or as <ud3es may re3ard a certain law as harsh( unwise or morally wron3( and may recommend to the authority or department concerned( its amendment( modification( or repeal( still( as lon3 as said law is in force( they must apply it and 3ive it effect as decreed by the law-ma5in3 body. (People v. Neneracion,
REASON )OR DURATION O) RECLUSION PERPETUA O) C3 OR %3 -EARS

4he imputed duration of thirty (;&, years for reclusion perpetua( therefore( is only to serve as the basis for determinin3 the convict2s eli3ibility for pardon or for the application of the three-fold rule in the service of multiple penalties. (People v. Lucas, ROBBER- WIT( (OMICIDE! NUMBER O) PERSONS @ILLED DOES NOT ALTER C(ARACTERI1ATION O) T(E O))ENSE BUT CAN BE APPRECIATED AS AGGRA,ATING CIRCUMSTANCE. 8hile the number of persons 5illed does not alter the characteriBation of the offense as robbery with homicide( the multiplicity of the victims slain should have been appreciated as an a33ravatin3 circumstance. 4his would preclude an 69

anomalous situation where( from the standpoint of the 3ravity of the offense( robbery with one 5illin3 would be treated in the same way that robbery with multiple 5illin3s would be. (People N. 4imple,
ROBBER- WIT( (OMICIDE AND ROBBER- WIT( RAPE+ PRO,ISION O) ARTICLE 25% O) T(E RE,ISED PENAL CODE AS AMENDED B- REPUBLIC ACT F675 CANNOT BE APPLIED RETROACTI,EL-+ CASE AT BAR.

0nder Article #%6 (", of the !evised Penal -ode( robbery with homicide is punishable by reclusion perpetua to death. In view( however( of the first para3raph of Section "%( Article III of the "%+7 -onstitution( which provides thatD /Sec. "%. (", G1cessive fines shall not be imposed( nor cruel( de3radin3 or inhuman punishment inflicted. :either shall death penalty be imposed( unless( for compellin3 reasons involvin3 heinous crimes( the -on3ress hereafter provides for it. Any death penalty already imposed shall be reduced to reclusion perpetua/ (Gmphasis supplied, only the penalty of reclusion perpetua could be imposed by the trial court. ?ence( the attended a33ravatin3 circumstances in this case had no impact upon the determination of the proper penalty by the trial court. @y !epublic Act :o. 7'$% (effective ;" Aecember "%%;,( -on3ress re-imposed the death penalty for certain heinous crimes( includin3 robbery with homicide and robbery with rape. @y the same statute( Article #%6 of the !evised Penal -ode was amended to read as followsD /Any person 3uilty of robbery with the use of violence a3ainst or intimidation on any person shall sufferD ". 4he penalty of reclusion perpetua to death( when by reason or on occasion of the robbery( the crime of homicide shall have been committed( or when the robbery shall have been accompanied by rape or intentional mutilation or arson. . . . (Gmphasis supplied, Article #%6 of the !evised Penal -ode( as amended by !.A. :o. 7'$%( however( cannot be applied retroactively in this case. 4o do so would be to sub<ect the appellant to the death penalty which could not have been constitutionally imposed by the court a quo under the law in effect at the time of the commission of the offenses. (People v. 4imple,
A PERSON MA- BE CON,ICTED O) GRA,E COERCION ALT(OUG( T(E C(ARGE IS @IDNAPPING

70

4he Information( dated =arch #6( "%%#( filed a3ainst Astor3a contains sufficient alle3ations constitutin3 3rave coercion( the elements of which were sufficiently proved by the prosecution. ?ence( a conviction for said crime is appropriate under Section 6( !ule "#& of the "%++ !ules on -riminal Procedure.
(People -vs- Astor3a,

ELEMENTS O) GRA,E COERCION

rave -oercion or coaccion ,rave has three elementsD a. 4hat any person is prevented by another from doin3 somethin3 not prohibited by law( or compelled to do somethin3 a3ainst his or her will( be it ri3ht or wron3; b. 4hat the prevention or compulsion is effected by violence( either by material force or such a display of it as would produce intimidation and( consequently( control over the will of the offended party; and c. that the person who restrains the will and liberty of another has no ri3ht to do so or( in other words( that the restraint is not made under authority of a law or in the e1ercise of any lawful ri3ht.
(People -vs- Astor3a,

ACTUAL DETENTION OR ELEMENT O) @IDNAPPING

LOC@ING

UP!

AN

ESSENTIAL

Actual detention or /loc5in3 up/ is the primary element of 5idnappin3. If the evidence does not adequately prove this element( the accused cannot be held liable for 5idnappin3. In the present case( the prosecution merely proved that appellant forcibly dra33ed the victim toward a place only he 5new. 4here bein3 no actual detention or confinement( the appellant may be convicted only of 3rave coercion.
(People -vs- Astor3a;
! ""&&%7( Aecember ##( "%%7 ,

DANGEROUS DRUGS ACT O) $5F2 DR.A. NO. 6%27E+ SECTIONS $7 AND 23 T(EREO) AS AMENDED B- R.A. NO. F675.

71

In People vs. 'artin 9imon y 9un,a ( ( .!. :o. %;&#+,( decided on #% )uly "%%6( this -ourt ruled as followsD (", Provisions of !.A. :o. 7'$% which are favorable to the accused shall be 3iven retroactive effect pursuant to Article ## of the !evised Penal -ode. (#, 8here the quantity of the dan3erous dru3 involved is less than the quantities stated in the first para3raph of Section #& of !.A. :o. '6#$( the penalty to be imposed shall ran3e from prision correccional to reclusion temporal( and not reclusion perpetua. 4he reason is that there is an overlappin3 error( probably throu3h oversi3ht in the draftin3( in the provisions on the penalty of reclusion perpetua as shown by its dual imposition( i.e.( as the minimum of the penalty where the quantity of the dan3erous dru3s involved is more than those specified in the first para3raph of the amended Section #& and also as the ma1imum of the penalty where the quantity of the dan3erous dru3s involved is less than those so specified in the first para3raph. (;, -onsiderin3 that the aforesaid penalty of prision correccional to reclusion temporal shall depend upon the quantity of the dan3erous dru3s involved( each of the component penalties thereof . prision correccional) prision mayor) and reclusion temporal . shall be considered as a principal imposable penalty dependin3 on the quantity( such that the quantity of the dru3s enumerated in the second para3raph should then be divided into three( with the resultin3 quotient( and double or treble the same( as the bases for determinin3 the appropriate component penalty. (6, 4he modifyin3 circumstances in the !evised Penal -ode may be appreciated to determine the proper period of the correspondin3 imposable penalty or even to effect its reduction by one or more de3rees; provided( however( that in no case should such 3raduation of penalties reduce the imposable penalty lower than prision correccional. ($, In appropriate instances( the Indeterminate Sentence Law shall be applied and considerin3 that !.A. :o. 7'$% has unqualifiedly adopted the penalties under the !evised Penal -ode with their technical si3nification and effects( then the crimes under the Aan3erous Aru3s Act shall now be considered as crimes punished by the !evised Penal -ode; hence( pursuant to Section " of the Indeterminate Sentence Law( the indeterminate penalty which may be imposed shall be one whose ma1imum shall be within the ran3e of the imposable penalty and whose minimum shall be within the ran3e of the penalty ne1t lower in de3ree to the imposable 72

penalty. 8ith the fore3oin3 as our touchstones( and it appearin3 that the quantity of the shabu recovered from the accused in this case is only &.&%$+ 3ram( the imposable penalty under the second para3raph of Section #& of !.A. :o. '6#$( as further amended by Section "7 of !.A. :o. 7'$%( should be prision correccional. Applyin3 the Indeterminate Sentence Law( the accused may then be sentenced to suffer an indeterminate penalty ran3in3 from si1 (', months of arresto mayor as minimum to si1 (', years of prision correccional as ma1imum.
ELEMENTS O) E,IDENT PREMEDITATION

(", 4he time when the offender determined to commit the crime; (#, an act manifestly indicatin3 that the offender had clun3 to his determination; and (;, sufficient lapse of time between the determination and the e1ecution to allow the offender to reflect on the consequences of his act. (PP -vsR:G+L*: GALA') Accused-Appellant. G.R. .o. "" 8 5) Feb. "#) 7555%
DATE O) E))ECTI,IT- O) RA F675! ETC.

!epublic Act :o. 7'$% too5 effect on ;" Aecember "%%;. Accordin3ly( the said law only applies to crimes defined therein( includin3 rape( which were committed after its effectivity. It cannot be applied retroactively because( to do so( would 3o a3ainst the constitutional prohibition on ex post facto la=s. 9or this reason( in order for the death penalty to be imposable( it is incumbent upon the prosecution to establish beyond a shadow of doubt that the case of the accused is already covered by !epublic Act :o. 7'$%.

AN E* POST )ACTO LAW (AS BEEN DE)INED AS ONE W(IC(

(a,

ma5es criminal an act before the passa3e of the law and which was innocent when done( and punishes such an act; a33ravate a crime( or ma5es it 3reater than it was( when committed;

(b,

73

(c,

chan3es the punishment and inflicts a 3reater punishment than the law anne1ed to the crime when committed; alters the le3al rules of evidence( and authoriBes conviction upon less or different testimony than the law required at the time of the commission of the offense; assumin3 to re3ulate civil ri3hts and remedies only( in effect imposes penalty or deprivation of a ri3ht for somethin3 which when done was lawful; and deprives person accused of a crime of some lawful protection to which he has become entitled( such as the protection of a former conviction or acquittal( or a proclamation of amnesty. (PP -vs- C1AR*?: *9@G 'AG2A.@A) G.R. .o. "74444) &ec. 6) "$$$% * PUBL'2 A2% /34+ AN A2% P*O&'B'%'N) %& '1PO#'%'ON O$ D A%& P NAL%Y 'N %& P&'L'PP'N #

(d,

(e,

(f,

DEAT( PENALT- IS PRO(IBITED 4he imposition of the penalty of death is hereby prohibited. Accordin3ly( !epublic Act :o. +"77( otherwise 5nown as the Act Aesi3natin3 Aeath by lethal in<ection is hereby repealed. !epublic Act :o. 7'$%( otherwise 5nown as the Aeath Penalty Law( and all other laws( e1ecutive orders and decrees( insofar as they impose the death penalty are hereby repealed or amended accordin3ly. (9ec. "% PENALTIES O) TO IMPOSED INSTEAD O) DEAT(

In lieu of the death penalty( the followin3 shall be imposedD a, 4he penalty of reclusion perpetua( when the law violated ma5es use of the nomenclature of the penalties of the !evised Penal -ode; b, 4he penalty of life imprisonment( when the law violated does not ma5e use of the nomenclature of the penalties of the !evised Penal -ode. (9ec. 7%

74

NOT ELIGIBLE )OR PAROLE

Person convicted of offenses punished with reclusion perpetua) or whose sentences will be reduced to reclusion perpetua( by reason of this Act( shall not be eli3ible for parole under Act :o. 6"+&( otherwise 5nown as the Indeterminate Sentence Law( as amended. (9ec. 6% 4he @oard of Pardons and Parole shall cause the publication at least once a wee5 for three consecutive wee5s in a newspaper of 3eneral circulation of the names of persons convicted of offenses punished with reclusion perpetua or life imprisonment by reason of this Act who are bein3 considered or recommended for commutation or pardon; Provided( however( 4hat nothin3 herein shall limit the power of the President to 3rant e1ecutive clemency under Section "%( Article NII of the -onstitution. (9ec. %
DIS0UALI)ICATION O) A JU,ENILE CON,ICTED O) AN O))ENSE PUNIS(ABLE B- DEAT(! LI)E IMPRISONMENT OR RECLUSION PERPETUA )ROM A,AILING BENE)ITS O) A SUSPENDED SENTENCE

4he law merely amended Article "%# of P.A. :o. '&;( as amended by A.=. :o. &#-"-"+-S-( in that the suspension of sentence shall be en<oyed by the <uvenile even if he is already "+ years of a3e or more at the time of the pronouncement of hisEher 3uilt. 4he other disqualifications in Article "%# of P.A. :o. '&;( as amended( and Section ;# of A.=. :o. &#-"-"+-Shave not been deleted from Section ;+ of !ep. Act :o. %;66. Gvidently( the intention of -on3ress was to maintain the other disqualifications as provided in Article "%# of P.A. :o. '&;( as amended( and Section ;# of A.=. :o. &#-"-"+-S-. ?ence( <uveniles who have been convicted of a crime the imposable penalty for which is reclusion perpetua( life imprisonment or reclusion perpetua to death or death are disqualified from havin3 their sentences suspended. (&eclarador vs. 1on. Gubaton) G.R. .o. "#$754) Au,ust "4) 7553%

'LL )AL PO## ##'ON O$ $'* A*1# (* PUBL'2 A2% NO. ,2/4)

75

SG-4I>: ".Section " Presidential Aecree :o. "+''( amended( is hereby further amended to read as followsD /SG-4I>: ". 0nlawful =anufacture( Sale( Acquisition( Aisposition or Possession of 9irearms or Ammunition or Instruments 0sed or Intended to be 0sed in the =anufacture of 9irearms or Ammunition. . 4he penalty of prision correccional in its ma1imum period and a fine of not less than 9ifteen thousand pesos (P"$(&&&, shall be imposed upon any person who shall unlawfully manufacture( deal in( acquire( dispose( or possess any low powered firearm( such as rimfire hand3un( .;+& or .;# and other firearm of similar firepower( part of firearm( ammunition( or machinery( tool or instrument used or intended to be used in the manufacture of any firearm or ammunitionD Provided( 4hat no other crime was committed. /4he penalty of prision mayor in its minimum period and a fine of 4hirty thousand pesos (P;&(&&&, shall be imposed if the firearm is classified as hi3h powered firearm which includes those with bores bi33er in diameter than .;+ caliber and % millimeter such as caliber .6&( .6"( . 66( .6$ and also lesser calibered firearms but considered powerful such as caliber .;$7 and caliber .## center-fire ma3num and other firearms with firin3 capability of full automatic and by burst of two or threeD Provided( however( 4hat no other crime was committed by the person arrested. /If homicide or murder is committed with the use of an unlicensed firearm( such use of an unlicensed firearm shall be considered as an a33ravatin3 circumstance. /If the violation of this Section is in furtherance of or incident to( or in connection with the crime of rebellion or insurrection( sedition( or attempted coup d2etat( such violation shall be absorbed as an element of the crime of rebellion( or insurrection( sedition( or attempted coup d2etat.

as

76

/4he same penalty shall be imposed upon the owner( president( mana3er( director or other responsible officer of any public or private firm( company( corporation or entity( who shall willfully or 5nowin3ly allow any of the firearms owned by such firm( company( corporation or entity to be used by any person or persons found 3uilty of violatin3 the provisions of the precedin3 para3raphs or willfully or 5nowin3ly allow any of them to use unlicensed firearms or firearms without any le3al authority to be carried outside of their residence in the course of their employment. /4he penalty of arresto mayor shall be imposed upon any person who shall carry any licensed firearm outside his residence without le3al authority therefor./ SG-4I>: #. Section ; of Presidential Aecree :o. "+''( as amended( is hereby further amended to read as followsD /SG-4I>: ;. 0nlawful =anufacture( Sale( Acquisition( Aisposition or Possession of G1plosives. . 4he penalty of prision mayor in its ma1imum period to reclusion temporal and a fine of not less than 9ifty thousand pesos (P$&(&&&, shall be imposed upon any person who shall unlawfully manufacture( assemble( deal in( acquire( dispose or possess hand 3renade(s,( rifle 3renade(s,( and other e1plosives( includin3 but not limited to 2pillbo1(2 2molotov coc5tail bombs(2 2fire bombs(2 or other incendiary devices capable of producin3 destructive effect on conti3uous ob<ects or causin3 in<ury or death to any person. /8hen a person commits any of the crimes defined in the !evised Penal -ode or special laws with the use of the aforementioned e1plosives( detonation a3ents or incendiary devices( which results in the death of any person or persons( the use of such e1plosives( detonation a3ents or incendiary devices shall be considered as an a33ravatin3 circumstance.

77

/If the violation of this Section is in furtherance of( or incident to( or in connection with the crime of rebellion( insurrection( sedition or attempted coup d2etat( such violation shall be absorbed as an element of the crimes of rebellion( insurrection( sedition or attempted coup d2etat. /4he same penalty shall be imposed upon the owner( president( mana3er( director or other responsible officer of any public or private firm( company( corporation or entity( who shall willfully or 5nowin3ly allow any of the e1plosives owned by such firm( company( corporation or entity( to be used by any person or persons found 3uilty of violatin3 the provisions of the precedin3 para3raphs./ SG-4I>: ;.Section $ of Presidential Aecree :o. "+''( as amended( is hereby further amended to read as followsD /SG-4I>: $. 4amperin3 of 9irearm2s Serial :umber. . 4he penalty of prision correccional shall be imposed upon any person who shall unlawfully tamper( chan3e( deface or erase the serial number of any firearm./ SG-4I>: 6.Section ' of Presidential Aecree :o. "+''( as amended( is hereby further amended to read as followsD /SG-4I>: '. !epac5in3 or Alterin3 the -omposition of Lawfully =anufactured G1plosives. . 4he penalty of prision correccional shall be imposed upon any person who shall unlawfully repac5( alter or modify the composition of any lawfully manufactured e1plosives./ SG-4I>: $.-overa3e of the 4erm 0nlicensed 9irearm. . 4he term unlicensed firearm shall includeD ", firearms with e1pired license; or #, unauthoriBed use of licensed firearm in the commission of the crime. 78

RULE ON ILLEGAL POSSESSION O) )IREARMS BE)ORE AN ACCUSED MA-BE CON,ICTED

In crimes involvin3 ille3al possession of firearm( the prosecution has the burden of provin3 the elements thereof( viBD a. the e1istence of the sub<ect firearm; and b. the fact that the accsused who owned or possessed it does not have the license or permit to possess the same. (People v. -astillo( ;#$ scra '";, 4he essence of the crime of ille3al possession is the possession( whether actual or constructive( of the sub<ect firearm( without which there can be no conviction for ille3al possession. After possession is established by the prosecution( it would only be a matter of course to determine whether the accused has a license to possess the firearm. (People v. @ansil( ;&6 scra ;+6, Possession of any firearm becomes unlawful only if the necessary permit or license therefor is not first obtained. 4he absence of license and le3al authority constitutes an essential in3redient of the offense of ille3al possession of firearm and every in3redient or essential element of an offense must be shown by the prosecution by proof beyond reasonable doubt. Stated otherwise( the ne3ative fact of lac5 or absence of license constitutes an essential in3redient of the offense which the prosecution has the duty not only to alle3e but also to prove beyond reasonable doubt. (People v. Mhor( ;&7 scra #%$, /4o convict an accused for ille3al possession of firearms and e1plosives under P.A. "+''( as amended( two (#, essential elements must be indubitably established( viBD (a, t-e existence of t-e sub(ect firearm or e1plosive which may be proved by the presentation( of the sub<ect firearm or e1plosive or by the testimony of witnesses who saw accused

79

in possession of the same( and (b, the ne3ative fact that the accused had no license or permit to own or possess the firearm or e1plosive which fact may be established by the testimony or certification of a representative of the P:P 9irearms and G1plosive 0nit that the accused has no license or permit to possess the sub<ect firearm or e1plosive./ (Ael !osario v. People( &$E;"E&", 8e stress that the essence of the crime penaliBed under P.A. "+'' is primarily the accused2s lac5 of license or permit to carry or possess the firearm( ammunition or e1plosive as possession by itself is not prohibited by law. (People v. -orteB( ;#6 scra ;;$( ;66, Ille3al possession of firearm is a crime punished by special law( a malum pro-ibitum( and no malice or intent to commit a crime need be proved. (People v. Lubo( "&" Phil. "7%, 4o support a conviction( however( there must be possession coupled with intent to possess ( animus possidendi, the firearm. (Supra,
PRESENT MEANING O) ILLEGAL POSSESSION O) )IREARM

@nlicensed firearm no lon3er simply means a firearm without a license duly issued by lawful authority. 4he scope of the term has been e1panded in Sec.$ of !.A. +#%6. 4hus( the unauthoriBed use of a weapon which has been duly licensed in the name of its ownerEpossessor may still a33ravate the resultant crime. In the case at bar( althou3h appellants may have been issued their respective licenses to possess firearms( their carryin3 of such weapons outside their residences and their unauthoriBed use thereof in the 5illin3 of the victim may be appreciated as an a33ravatin3 circumstance in imposin3 the proper penalty for murder. (Pp. N. =olina; r ""$+;$-;'; )uly ##( "%%+,
ILLEGAL POSSESSION O) )IREARM ONLSPECIAL AGGRA,ATING CIRCUMSTANCE IN CRIMES O) (OMICIDE! ETC.

8here murder or homicide was committed( the separate penalty for ille3al possession shall no lon3er be meted out since it becomes merely a special a33ravatin3 circumstance. 80

4his statutory amendment may have been an offshoot of our remar5s in Pp. A. ?ac-an and Pp. A. ;ui(ada D
B.eit-er is t-e 7nd para,rap- of 9ec." meant to punis- -omicide or murder =it- deat- if eit-er crime is committed =it- t-e use of an unlicensed firearm) i.e.) to consider suc- use merely as a >ualifyin, circumstance and not as an offense. ?-at could not -ave been t-e intention of t-e la=maCer because t-e term BpenaltyD in t-e sub(ect provision is obviously meant to be t-e penalty for ille,al possession of firearm and not t-e penalty for -omicide or murder. Ee explicitly stated in ?ac-an F ?-ere is no la= =-ic- renders t-e use of an unlicensed firearm as an a,,ravatin, circumstance in -omicide or murder. @nder an information c-ar,in, -omicide or murder) t-e fact t-at t-e deat- =eapon =as an unlicensed firearm cannot be used to increase t-e penalty for t-e 7nd offense of -omicide or murder to deat- (or reclusion perpetua under t-e "$48 Constitution%. ?-e essential point is t-at t-e unlicensed c-aracter or condition of t-e instrument used in destroyin, -uman life or committin, some ot-er crime) is not included in t-e inventory of a,,ravatin, circumstances set out in Article " of t-e Revised Penal Code.

A law may( of course( be enacted ma5in3 use of an unlicensed firearm as a qualifyin3 circumstance.K (People v. =olina; ! ""$+;$-;'( )uly ##( "%%+,
NEW PENALT- )OR LOW POWERED )IREARM IN ILLEGAL POSSESSION O) )IREARMS

Petitioner( fortunately for him( is nonetheless not entirely bereft of relief. 4he enactment and approval on &' )un "%%7 of !A +#%6( bein3 favorable to him( should now apply. 0nder this new law( the penalty for possession of any low powered firearm is only prision correccional in its ma1imum period and a fine of not less than P"$(&&&.&&. Applyin3 the Indeterminate Sentence Law( the present penalty that may be imposed is anywhere from two years( four months and one day to four years and two months of prision correccional in its medium period( as minimum( up to 81

anywhere from four years( two moths and one day to si1 years of prision correccional in its ma1imum period( as ma1imum.. 4he court in addition( may impose a fine consistent with the principle that an appeal in a criminal case throws the whole case open for review by the appellate tribunal. (=ario !aba<a v -A( et al.( >ct +E%7,
ACTS PUNIS(ABLE:

". Jupon any person who shall unlawfully manufacture( deal in( acquire( dispose( or possess any low powered firearm( such as rimfire hand3un( .;+& or .;# and other firearm of similar firepower( part of firearm( ammunition( or machinery( tool or instrument used or intended to be used in the manufacture of any firearm or ammunitionK #. /If homicide or murder is committed with the use of an unlicensed firearm( such use of an unlicensed firearm shall be considered as an a33ravatin3 circumstance.K ;. /If the violation of this Section is in furtherance of or incident to( or in connection with the crime of rebellion or insurrection( sedition( or attempted coup d2etat( such violation shall be absorbed as an element of the crime of rebellion( or insurrection( sedition( or attempted coup d2etat.K 6. /4he same penalty shall be imposed upon the owner( president( mana3er( director or other responsible officer of any public or private firm( company( corporation or entity( who shall willfully or 5nowin3ly allow any of the firearms owned by such firm( company( corporation or entity to be used by any person or persons found 3uilty of violatin3 the provisions of the precedin3 para3raphs or willfully or 5nowin3ly allow any of them to use unlicensed firearms or firearms without any le3al authority to be carried outside of their residence in the course of their employment.K $. J4he penalty of arresto mayor shall be imposed upon any person who shall carry any licensed firearm outside his residence without le3al authority thereforK '. JAny person who shall unlawfully tamper( chan3e( deface or erase the serial number of any firearmK.

82

7. JAny person who shall unlawfully repac5( alter or modify the composition of any lawfully manufactured e1plosivesK. MALUM PRO(IBITUM 4he offense of ille3al possession of firearm is a malum prohibitum punished by a special law( in which case 3ood faith and absence of criminal intent are not valid defenses. (People v Ae racia( 7E'E%6, ". =anufacture( deal in( acquire( dispose or possess. It is these acts relative to firearms. 4he obvious underlyin3 principle is the undesirability of the proliferation of firearms and their free traffic and possession. 4his is clear from the first two JwhereasK clause of P.A. "+''. It is then clear that ille3al possession( etc. is a malum pro-ibitum. 9or purpose of simplicity we will confine our analysis to JpossessionK( althou3h what we will discuss hereunder applies to manufacture( dealin3 in( acquirin3 or disposin3 as well. It is not correct to say without qualification that JintentK is immaterial. 'ntent as to ?ossess0on 0s 0mmate40a>. 'ntent0on to ?ossess 0s mate40a>. 8hatever the purpose of the possession may be is consistently immaterial. 4hat one was in possession of an unlicensed firearms merely for one*s protection without intendin3 harm on anybody is a fruitless defense. It is the clear doctrine of such cases as People v. de la Rosa) #+6 S-!A "$+ that Jmere possession without criminal intent is sufficient on which to render a <ud3ment of convictionK. ?>8GNG!( ?ossess0on m5st be estab>0s@ed beyond 4easonab>e do5bt( and in view of the special meanin3 that JpossessionK has in criminal law( discovery by police( officers alone of a firearmin the ba33a3e or 3loves compartment of a car will not necessarily be sufficient to sustain a conviction of the car owner or driver. Gssential to the le3al concept of JpossessionK in ille3al possession cases is

83

animus possidendio. (People v. de la Rosa( supra; People v. 9ayan,( ""& Phil $'$,. ?ow is animus possidendi establishedC 4here must be proved either by direct or circumstantial evidence the JintentK of the accused to possess( or to 5eep the firearm. a.% Animus Possidendi is determined by recourse to overt acts prior to or simultaneous with possession and other surroundin3 circumstances. (People v. de la Rosa, when it is established that the accused purchased the weapon in question( a 3ood case for animus possidendi is made. b.,Animus possidendi may also be inferred from the fact that an unlicensed firearms was under the apparent control and power of the accussed. (People v. Aerc-es( ;; S-!A "76, c.% People v. de Gu0man) .!. ""7%$#-$; (9ebruary "6( #&&", holds that the J3ravamenK for the offense of violation of P.A."+'' is the possession of firearm without the necessary permit andEor license. J4he crime is immediately consummated upon mere possession of a firearm devoid of le3al authority( since it is assumed that the same is possed with Janimus possidendiK Aoes it then follow that everyone found with the firearm is in JpossessionK thereof for the purpose of prosecution and conviction under P.A. "+'' as amended by !.A. +#%6C 4he results would be patently absurd. i. A person who finds a firearms and ta5es it with him to the police station for the purpose of turnin3 it over to the police should be commended( rather than prosecuted. A person who is stopped at a chec5-point at which it is discovered that there is firearms Q placed either advertently or inadvertently in his ba33a3e compartment A0t@o5t @0s BnoA>edCe - cannot be held liable for ille3al possession. 84

ii.

iii.

If the offender was in possession of an unlicensed only on the occasion of the shootin3 for transitory purpose and for the short moment in connection with the shootin3( the Supre -ourt held in People v. 'acaslin,( #;7 S-!A #%% that there was no evidence of Janimus possidendiK. It then appears to be the more reasonable position that where a person is apprehended with an unlicensed weapon( animus possidendi will be disputably presumed. 4he accused may controvert the presumption of animus possidendi. 4o convict( the court needs proof beyond reasonable doubt of animus possidendi. 8hat the prosecution must prove for it to succeed under the law is two-foldD first( the e1istence of the firearm; second( the absence of a license or a permit to possess. (People v. Ru,ay( #%" S-!A '%#, a., 4o prove the e1istence of the firearm( it is not absolutely necessary that the ob<ect evidence be presented. It is very well possible that the accused effectively conceals the weapon before his apprehension. Incontrovertible testimonial evidence may successfully established the e1istence of the firearm. (People v. .arvasa) .!. ";#+7+ H:ovember "'( "%%+I,( b., An interestin3 question arises. 4he present law ma5es penalties depend on the caliberof the firearm( i.e( on whether it is hi3h-powered or low-powered In People v. utierreB( .!. ";#+7+ ()anuary "+( "%%%, the Supreme -ourt ruled that a 0.S. carbine =" caliber .;& was hi3h-powered because it was capable of e<ectin3 more than one bullet in one squeeBe. If it is the criterion( then lo3ically( caliber can be established by testimony establishin3 the manner in which 85

iv.

".6

the firearm e<ected bullets. 4he distin3uishin3 features of particularly firearms( furthermore( that may be recited by 5een observer sworn in a s witness my identify the firearm as well as it caliber. 4his can be established by a <udicious combination of the testimonial evidence of observers and e1perts. c., A firearm is unlicensed when a certification from the J9irearms and G1plosives 0nitK attests that no license has been issued. 4here will still be a case for ille3al possession if one holdin3 a firearm duly licensed carries it outside his residence when he has no permit to carry it outside his residence (Pastrano v. Court of Appeals( #+" S-!A #+7,. A fortiori( the use of a licensed firearm by one not licensed or permitted to use it would still be ille3al possession. d., A security 3uard employed by a security a3ency and issued a firearm by the a3ency has the ri3ht to assume that the firearm issued to him is a licensed firearm. If it turns out that the firearm is not licensed( there is no animus possidendi of an unlicensed firearm. (-uenco v. People( ;; S-!A $##,. 4he case is obviously different( however( if a police officer leaves with a cousin for safe5eepin3 his firearm. 4he cousin 5nows fully well that he has no permit or authority to 5eep the firearm. If he accepts to do this favor( he is indictable. (People v. 9ayon,( ""& Phil $'$, #. P4o30ded no ot@e4 c40me 0s comm0tted. It is this proviso in the amendatory law that has visited countless woes on numerous <ud3es and has occasioned not easily reconcilable decisions by the Supreme -ourt. It is obviously a case of not only poor but miserable draftsmanshipS #." It is clear that where there is no other offense e1cept the unlawful possession of a firearm( the penalties provided for in the amended Section " 86

shall be imposedD prision correccional in its ma1imum period for low-powered firearms( and prision mayor in its ma1imum periods for hi3hpowered firearms. 4hus in People v. .une0) .!. ""#&%# (=arch "( #&&", holds that a person may be convicted of simple ille3al possession if the ille3al possession is proved and the frustrated murder and murder case Q involvin3 the use of the ille3al possession Q has not been sufficiently proved. People v. Avecilla( .!. ""7&;; (9ebruary "$( #&&", teaches that Jthe crime of ille3al possession of firearms( in its simple form( is committed any of the crimes of murder( homicide( rebellion( insurrection( sedition or attempted coup d*etatK. #.#. It is also clear that where either homicide or murder is committed with the use of an unlicensed firearm( such use shall constitute an Ja33ravatin3 circumstancesK. It is well 5nown that !.A. +#%6 was initiated by Senator !amon !evilla as a favor to his friend !obin Padilla who was then servin3 sentence for ille3al possession. It was therefore meant to be more benevolent( as it is in the penalties it impose. Senator !evilla( however( could not see far enou3h (and re3rettably neither could other le3islators, and the effect at least in the case of murder is that it may send the accused to the lethal in<ection chamber where otherwise he would not be meted out the death penalty. People v. =ontinola( .!. ";"+$'$7 ()uly "( #&&", with the -hief )ustice himself as ponente illustrates the complication the law has introduced. In this case( the accused had been char3ed with two offensesD robbery with homicide and ille3al possession of firearms. Aurin3 the pendency of the case( the amended law came into force. 4he court then held that insofar as !.A. +#%6 was favorable to the accused in that it spared him from separate prosecution for ille3al possession( the char3e for ille3al possession was dropped. Insofar( however( as it increased the penalty for robbery with homicide( the a33ravatin3 circumstances of the use of unlicensed weapon could not be appreciated. Rule ""5) 9ection $ of t-e Revised Rules of Criminal Procedure will applyD As an a33ravatin3

87

circumstances( the use of the unlicensed weapon must be alle3ed in the information. #.; 8hen the violation of the law penaliBin3 unlicensed weapon is Jin furtherance of or incident to( or in connection with the crimes of rebellion( insurrection( sedition or attempted coup d*etatK then the violation is absorbed in the main offense. (!.A. +#%6( Section ",. #.6 8hat happens when an unlicensed weapon is used in the commission of other offenses other that homicide( murder( rebellion( insurrection( sedition or attempted coup d* etataC People v. 8alpandlad<aalam( .!. ";'""6%-$" ( September "%( #&&&, provides the answer in the distinctively clear lan3ua3e of )ustice Pan3anibanD J4he law is clearD the accused can be convicted of simple ille3al possession of firearms( provided that Jno other crime was committed by the person arrested*. If the intention of the law in the second para3raph were to refer only to homicide and murder( it should have e1pressly said so( as it did in the third para3raph. Nerily( where the law does not distin3uish( neither should we.K In brief( where the accused commits a crime other than those enumerated with the use of an unlicensed weapon( no separate char3e for such use will be brou3ht a3ainst him. -onsistent with this is the disposition by the Supreme court decreedD JAccordin3ly( all pendin3 cases for ille3al possession of firearms should be dismissed if they arose from the commissionK of crimes other than those indicated in Section " and ; of !.A. +#%6. #.$ -learly the law leads to absurd results( for when the use of an unlicensed weapon attends the commission of a crime( no matter how trivial( the case of ille3al possession recedes into <udicial irrelevance. 4he matter is definitely one that calls for a curative statute and the Supreme -ourt has referred the matter to the -on3ress for another loo5. >ne moral lesson can be learnedD Laws passed as favor to one*s friend is a poor lawsS
OWNERS(IP IS NOT AN ESSENTIAL

88

ELEMENT O) ILLEGAL POSSESSION

4he rule is that ownership is not an essential element of ille3al possession of firearms and ammunition. 8hat the law requires is merely possession which includes not only actual physical possession but also constructive possession or the sub<ection of the thin3 to one*s control and mana3ement.
INTENT TO POSSESS! OR ANIMUS POSSIDENDI IS ESSENTIAL

A distinction should be made between criminal intent and intent to possess. 8hile mere possession without criminal intent is sufficient to convict a person for ille3al possession of firearms( it must still be shows that there was animus possidendi or an intent to possess on the part of the accused. 4here is no evidence of animus possedendi if the offender was in possession of an unlicensed firearm only on the occasion of the shootin3 for a transitory purpose and for the short moment in connection with the shootin3. Lac5 of evidence is an essential element of the crime and that the same must be alle3ed in the Information and duly proved.
(People -vs- =acaslin3( #;7 S-!A #%%,

>wnership of the 3un is immaterial or irrelevant in violation of PA "+''( as amended. >ne may be convicted of possession of an unlicensed firearm even if he is not the owner thereof.
(People -vs- !eynaldo -ruB( ! :o. 7'7#+( Au3ust ;( "%++,

Gven if the 3un is /palti5(/ there is a need to secure license for the 3un( and if found without any license therefor( the offender is liable for violation of PA "+''.
(People vs- 9ilemon !amos( ### S-!A $$7,

If an unlicensed firearm is used to commit a crime other than homicide or murder( such a direct assault with attempted homicide( the use of an unlicensed firearm is neither an a33ravatin3 circumstances nor a separate offense. Since the law uses the word ?omicide or =urder( possession of an unlicensed firearm is not a33ravatin3 in Attempted ?omicide. 89

(People -vs- 8alpan Lad<aamlam( et al.( ! :o. ";'"6%-$"( September "%( #&&&,

8here the accused was char3ed of =urder and violation of PA "+'' and that( in the meantime( !epublic Act +#%6 too5 effect( the accused should be convicted only of =urder. 4he use of unlicensed firearm should not be considered as a33ravatin3 because the -ourt will have to impose the death penalty which cannot be allowed because( at the time of the commission of the offense( the death penalty cannot as yet( be imposed. ?owever( in his concurrin3 opinion( -hief )ustice ?ilario Aavide( )r. declared that( under such a factual milieu( the char3e of violation of PA "+'' should continue and if the accused is found 3uilty( he should be meted the death penalty under !epublic Act +#%6.
(People -vs- Nictor =acoy( ! :o. "#'#$;( Au3ust "'( #&&&,

8here the prosecution failed to adduce the 3un in evidence coupled with the fact that per -ertification of the 9G0( / no available information re3ardin3 the license for the 3un and the inconsistency in the evidence of the prosecution( the latter failed to dischar3e its burden.
(People -vs- !icolito !u3ay( et al.( #%" S-!A '%#,

=ere possession without criminal intent is sufficient on which to render a <ud3ment of conviction for violation of PA "+''( as amended. ?owever( there must be animus possedendi or intent to possess without any license or permit. ood faith is not a defense. :either is lac5 of criminal intent.
(People -vs- !odolfo Aela !osa( et al.( #+6 S-!A "$+,

4emporary( incidental( casual or harmless possession of firearm is not punishable. ?ence( stealin3 a firearm to render the owner defenseless is not a crime under the law. (idem(
supra,

Possession includes actual physical possession and constructive possession. 4he animus can be determined from the overt acts of the accused prior to or coetaneous with and other surroundin3 circumstances of such possession. ?ence( where the accused found a 3un and was on his way to deliver the 3un to the police authority and was arrested( in the process( there is no animus possedendi.
(People -vs- !odolfo Aela !osa( et al.( supra,

90

Gven if a paltiC is a homemade 3un and thus ille3ally manufactured nevertheless( the Prosecution is burdened to prove that the accused has no license for the 3un.
(People -vs- 9elimon !amos( et al.( ### S-!A $$7,

9or the accused to be 3uilty of violation of PA "+'' as amended the Prosecution must proveD (a, the e1istence of the sub<ect firearm; (b, the fact that the accused who owned or possessed the firearm does not have the correspondin3 license or permit to possess the same.
(People -vs- !icolito !u3ay( et al.( #%" S-!A '%#,

8here the accused is convicted of violation of !epublic Act +#%6 and meted a penalty less than si1 (', years( and a fine of P"$(&&&.&&( he should be ordered to under3o subsidiary imprisonment in case of insolvency.
(=ario !aba<a -vs- -ourt of Appealss( et al.( #+& S-!A #%&,

In the li3ht of /People -vs- =artin Simon(/ #;6 S-!A $$$( and Articles "; and "6( in relation to Article ';( of the !evised Penal -ode and the Indeterminate Sentence Law for violation of the !evised Penal -ode may now be applied for violation of PA "+''( as amended( and !epublic Act '6#$( as amended. Gven if a person is licensed to possess a firearms but brin3s out firearm outside of his residence without permit therefor( he is 3uilty of violation of the last para3raph of Section " of PA "+''( as amended. A =ission >rder cannot ta5e the place of a license. A =ission >rder can only be issued to one licensed to possess a firearm. (Pedrito Pastrano -vs- -ourt of Appeals( et al.( #+" S-!A #+7, If the accused borrowed a 3un from another who is licensed to possess firearm( may the former be liable for violation of PA "+''( as amendedC Fes. Gven if the 3un is licensed to one and lends it to another( the latter is liable for violation of PA "+''( as amended. A license to possess a firearm and a permit to carry a licensed firearm outside of his residence is not transferable.
(Pedrito Pastrano -vs- -ourt of Appeals( et al.( supra,

Gven if the firearm sub<ect of the crime is not adduced in evidence one may still be convicted of possession of an

91

unlicensed firearm as lon3 as proof was adduced that the acused was in possession of a firearm.
(People -vs- 9elicisimo :arvasa( ! :o. "#+'"+( :ovember "'( "%%+,

NO% < 0nder !epublic Act +#%6( the penalty depends upon the caliber of the 3un. Suppose there is no testimony as to the caliber of the 3unC 8here a security 3uard was 3iven by his employer( a security a3ency( a firearm( and the accused assumed that the employer secured the license for the firearm but that it turned out that the employer failed to 3et any license( the security 3uard is not criminally liable. 4he security 3uard has the ri3ht to assume that the security a3ency secured the license.
(Grnesto -uenca -vs- People( ;; S-!A $##,

If a constabulary soldier entrusted his 3un to the accused for safe5eepin3 and later the accused found in possession of the 3un( the accused is 3uilty of possession of unlicensed firearm. 4o e1culpate himself( the accused must prove absence of animus possidendi.
(People -vs- Perlito Soyan3( et al.( ""& Phil. $'$( $+;,

JAK secured a loan from @ and pled3ed his unlicensed firearm as security for the loan. A promised to pay his loan and retrieve the firearm as soon as he had money. @ found in possession of the unlicensed firearm. 9or the court to sustain the contention of @ is to authoriBe the indefinite possession by @ of the unlicensed firearm because there was no way to determine when A could pay his account. JAK may be convicted.
(People -vs- -ornelio =el3as( "&& Phil. #%+,

If a licensed firearm if used to commit =urder or ?omicide( such circumstances is merely a special a33ravatin3 circumstance which must be alle3ed in the Information and cannot be offset by any miti3atin3 circumstance. (People -vs'eriato 'olina) et al.( .!. :o. ""$+;$( )uly ##( "%%+; People -vs.arvasa) .!. no. "#+'"+ :ovember "+( "%%+,

4he Aecision of the Supreme -ourt in People -vsPaterno 4ac-an( "+# S-!A '&"; People -vs- )esus Aeunida( and People -vs- @arros and People -vs- Aaniel Pui<ada #$% S-!A "%" had been overta5en by !epublic Act +#%6.

92

0nder the amendment( the death penalty may now be imposed if the accused is convicted of =urder with the use of licensed or unlicensed firearms. As lon3 as the accused is proved to have been in possession of the unlicensed firearm even if the firearm is not adduced in evidence( conviction under the law is proper.
(People -vs- 9elicisimo :arvasa( supra,

Re>u;li" A" &25% oo' e99e" on July 6! $55F. If the accused is char3ed of =urder and violation of PA "+'' and durin3 the trial( !epublic Act +#%6 too5 effect( the accused cannot be convicted of violation of PA "+''( as amended. :either should the possession of an unlicensed firearm be considered as an a33ravatin3 circumstance as it will be less favorable to the accused. If the accused used a sumpaC to 5ill the victim( the prosecution must prove that he had no license or permit to possess the sumpaC.
(People -vs- -ipriano de Nera( .!. :o. "#"6'#-';( )une %( "%%%,

-ompare /People -vs- 8ilfredo 9iloteo(/ #%& S-!A '#7 where the accused was convicted of =urder and violation of PA "+'' and durin3 the pendency of the appeal( !epublic Act +#%6 too5 effect. >ur Supreme -ourt affirmed the conviction of the Accused of two (#, crime of ?omicide and violation of PA "+''( as amended( and applied the penalty for the crimes under the amendment. In /People -vs- Aeriato 'olina) et al.)G #%# S-!A 76#( our Supreme -ourt Gn @anc declared that where the accused was convicted of said crimes( by the 4rial -ourt but that durin3 the pendency of the appeal( with the Supreme -ourt( !epublic Act +#%6 too5 effect( the accused should only be convicted of =urder with the use of an unlicensed firearm as mere a special a33ravatin3 circumstance. =urder( under !epublic Act +#%6( is used in its 3eneric term and( hence( includes Parricide
(People versus >ctavio =endoBa( ! :o. "&%#7&-+&( )anuary "+("%%%,

93

A 0nited States carbine ="( caliber .;-& is a hi3hpowered 3un because it is capable of emittin3 two or three bullets in one squeeBe.
(People -vs- Gduardo utierreB( ! :o. ";#+7+( September "%%%,

It is not necessary that the firearm be produced and offered in evidence for !epublic Act +#%6 to apply. It is not enou3h that there is evidence of the e1istence of the 3un which can be established either by testimony or presentation of the 3un itself. Possession of an unlicensed firearm and used in 5illin3 is a special a33ravatin3 circumstance.
(People -vs- 9elicisimo :arvasa( ! :o. "#+'"+( :ovember "+( "%%+,

4he Aecision of the Supreme -ourt in People versus Rex 2er,ante) et. al.) ! :o. "#&;'%( 9ebruary #7( "%%+( that the use of an unlicensed firearm to commit murder is only a 3eneric a33ravatin3 circumstance is no lon3er true. Possession under the law may either be actual physical possession or constructive possession. ?owever( althou3h the crime under PA "+''( as amended( is malum prohibitum( however( there must be animus possidendi( or intent to possess. Animus possidendi may be inferred from the fact that an unlicensed firearm is under the apparent control and power of the accused. however( animus possidendi may be contradicted if a person in possession of an unlicensed firearm does not assert a ri3ht thereto. If the possession of an unlicensed 3un is merely temporary( incidental or transient( the same is not punishable under PA "+''. ?owever( the law does not provide for a fi1ed period of time for one to be deemed in /possession/ of an unlicensed firearm. (People -vs- Rolando Aerc-es) 766 9CRA "8 ,. Gach factual milieu must be considered.
IMPLICATION B- RA &25% POSSESSION O) )IREARMSE ON PD $&66 DILLEGAL

P.A. "+''( which codified the laws on ille3al possession of firearms( was amended on )une '( "%%7 by !epublic Act +#'6. Aside from lowerin3 the penalty for said crime( !.A.

94

+#%6 also provided that i9 #o?i"i<e or ?ur<er i= "o??i e< :i # #e u=e o9 an unli"en=e< 9irear?! =u"# u=e =#all ;e "on=i<ere< a= a =>e"ial aggraGa ing "ir"u?= an"e. 4his amendment has two (#, implicationsD 9ir= ( the use of an unlicensed firearm in the commission of homicide or murder shall not be treated as a separate offense( but merely as a special a33ravatin3 circumstance; =e"on<( as only a sin3le crime (homicide or murder with the a33ravatin3 circumstance of ille3al possession of firearm, is committed under the law( only one penalty shall be imposed on the accused. Prescindin3 therefrom( and considerin3 that the provisions of the amendatory law are favorable to herein appellant( the new law should be retroactively applied in the case at bar. It was thus error for the trial court to convict the appellant of two (#, separate offenses( i.e.( ?omicide and Ille3al Possession of 9irearms( and punish him separately for each crime. @ased on the facts of the case( the crime for which the appellant may be char3ed is #o?i"i<e! aggraGa e< ;y illegal >o==e==ion o9 9irear? ( the correct denomination for the crime( and no illegal >o==e==ion o9 9irear?! aggraGa e< ;y #o?i"i<e as ruled by the trial court( as it is the former offense which a33ravates the crime of homicide under the amendatory law.
E,EN I) ACCUSED ADMITTED T(AT (E (AS NO LICENSE! SUC( ADMISSION IS NOT SU))ICIENT PROO) O) ILLEGAL POSSESSION O) )IREARM

?ence( in the case at bar( al #oug# #e a>>ellan #i?=el9 a<?i e< #a #e #a< no li"en=e 9or #e gun re"oGere< 9ro? #i= >o==e==ion! #i= a<?i==ion :ill no relieGe #e >ro=e"u ion o9 i = <u y o e= a;li=# ;eyon< rea=ona;le <ou; #e a>>ellan H= la"' o9 li"en=e or >er?i o >o==e== #e gun. In Peo>le G=. Solayao( we e1pounded on this doctrine( thusD /1 1 1 by its very nature( an admission is the mere ac5nowled3ement of a fact or of circumstances from which 3uilt may be inferred( tendin3 to incriminate the spea5er( but not sufficient of itself to establish his 3uilt./ In other words( it is a statement by defendant of fact or facts pertinent to issues pendin3( in connection with proof of other facts or

95

circumstances( insufficient to principles( this "ri?inal "a=e= "o??i==ion o9

to prove 3uilt( but which is( of itself( authoriBe conviction. 9rom the above -ourt can infer that an a<?i==ion in i= in=u99i"ien o >roGe ;eyon< <ou; #e #e "ri?e "#arge<.

/=oreover( =ai< a<?i==ion i= eI raJu<i"ial in na ure. As such( it does not fall under Section 6 of !ule "#% of the !evised !ules of -ourt which statesD An admission( verbal or written( made by a party in the course of the trial or other proceedin3s in the same case does not require proof. /:ot bein3 a <udicial admission( said = a e?en ;y a""u=e<.a>>ellan <oe= no >roGe ;eyon< rea=ona;le <ou; #e =e"on< ele?en o9 illegal >o==e==ion o9 9irear?. It does not even establish a prima facie case. It merely bolsters the case for the prosecution but <oe= no = an< a= >roo9 o9 #e 9a" o9 a;=en"e or la"' o9 a li"en=e./ (emphasis supplied, (PP -vs- J@L*A. CA9?*LL: /
L@'A/R:) G.R. .o. "6"#$7-$6) Feb. "#) 7555%

ELEMENTS O) ILLEGAL POSSESSION O) )IREARMS 4o convict an accused for ille3al possession of firearms and e1plosive under P.A. "+'' as amended( two (#, essential elements must be indubitably established( viBD (a, the eIi= en"e o9 #e =u;Je" 9irear? or eI>lo=iGe which may be proved by the presentation of the sub<ect firearm or e1plosive or by the testimony of witnesses who saw accused in possession of the same( and (b, #e nega iGe 9a" #a #e a""u=e< #a< no li"en=e or >er?i o o:n or >o==e== #e 9irear? or eI>lo=iGe which fact may be established by the testimony or certification of a representative of the P:P 9irearms and G1plosives 0nit that the accused has no license or permit to possess the sub<ect firearm or e1plosive. In the case at bar( the prosecution failed to prove the second element of the crime( i.e.( the lac5 of license or permit of appellant -orteB to possess the hand 3renade. Althou3h the hand 3renade seiBed by P># Santos from appellant was presented in court( the records bear that P># Santos <i< no =u;?i #e grena<e o #e PNP )irear?= an< EI>lo=iGe= Uni for verification. 4his e1plains why no "er i9i"a ion or 96

e= i?ony :a= a<<u"e< ;y #e >ro=e"u ion a #e rial o >roGe #a a>>ellan Cor eK :a= no li"en=e< o >o==e== #e eI>lo=iGe. 4he failure of the prosecution to adduce this fact is fatal to its cause. 8e stress that the essence of the crime penaliBed under P.A. "+'' is primarily the a""u=e<H= la"' o9 li"en=e or >er?i o "arry or >o==e== #e 9irear?! a??uni ion or eI>lo=iGe a= >o==e==ion ;y i =el9 i= no >ro#i;i e< ;y la:.

MA- E*PLOSI,ES BE GI,EN A PERMIT OR LICENSE4

In the case of an e1plosive( a permit or license to possess it is usually 3ranted to minin3 corporations( military personnel and other le3itimate users. (PP -vs- 2+R.*+ C:R?+H / .A?A.*:) +? AL.) G.R. .os. "6"3"$-75) Feb. ") 7555%

UNDER R.A. &25% A SEPARATE CON,ICTION )OR ILLEGAL POSSESSION O) )IREARMS AND )OR (OMICIDE IS NOT ALLOWED

8ith respect to the conviction of accused-appellant for ille3al possession of firearms under P.A. :o. "+''( it was held in the case of Peo>le G=. Molina and reiterated in the recent case of Peo>le G=. Ronal<o ,al<eK! that in cases where murder or homicide is committed with the use of an unlicensed firearm( there can be no separate conviction for the crime of ille3al possession of firearms under P.A. :o. "+'' in view of the amendments introduced by !epublic Act :o. +#%6. 4hereunder( the use of unlicensed firearm in murder or homicide is simply considered as an a33ravatin3 circumstance in the murder or homicide and no lon3er as a separate offense. 9urthermore( the penalty for ille3al possession of firearms shall be imposed provided that no crime is committed. In other words( where murder or homicide was committed( the penalty for ille3al possession of firearms is no lon3er imposable since it becomes merely a special a33ravatin3 circumstance. (PP -vs- A@G@9?: L:R+?:
R*.G:R) JR.) G.R. .o. "76$"4) &ec. $) "$$$% JURISPRUDENCE:

97

Peo?>e 3s. 1acasa>0nC( 239 #2*A 2//

In en o Po==e==! or Ani?u= Po==i<en<i i= E==en ial.

A distinction should be made between criminal intent and intent to possess. 8hile mere possession without criminal intent is sufficient to convict a person for ille3al possession of firearms( it must still be shows that there was animus possidendi or an intent to possess on the part of the accused. 4here is no evidence of animus possedendi if the offender was in possession of an unlicensed firearm only on the occasion of the shootin3 for transitory purpose and for the short moment in connection with the shootin3. Lac5 of evidence is an essential element of the crime and that the same must be alle3ed in the Information and duly proved. Peo?>e 3s *eyna>do 2456( ).*. No. 9+92,( A5C5st 3( 1/,, >wnership of the 3un is immaterial or irrelevant in violation of PA "+''( as amended. >ne may be convicted of possession of an unlicensed firearm even if he is not the owner thereof. Peo?>e 3s $0>emon *amos( 222#2*A 559 Gven if the 3un is Jpalti5K( there is a need to secure license for the 3un( and if found without any license therefor( the offender is liable for violation of PA "+''.
Peo?>e 3s. .a>?an LadDaam>am( et a>.( ).*. No. 13+14/751( #e?tembe4 1/( 2000

If an unlicensed firearm is used to commit a crime other than homicide or murder( such a direct assault with attempted homicide( the use of unlicensed firearm is neither an a33ravatin3 circumstances nor a separate offenses. Since the law used the word ?omicide of =urder( possession of an unlicensed firearm is not a33ravatin3 in Attempted ?omicide.

98

No eD 0nder !epublic Act +#%6( the penalty depends upon the caliber of the 3un. Suppose there is no testimony as to the caliber of the 3unC 4nesto 25enca 3s. Peo?>e( 33 #2*A 522

8here a security 3uard was 3iven by his employer( a security a3ency( a firearm( and the accused assumed that the employer secured the license for the firearm but it turned out that the employer failed to 3et any license( the security 3uard is not criminally liable. 4he security 3uard has the ri3ht to assume that the security a3ency secured the license.
Peo?>e 3s. Pe4>0to #oyanC( et a>.( 110 P@0>. 5+5( 5,3 If a constabulary soldier entrusted his 3un to the accused for safe5eepin3 and later the accused found in possession of the 3un( the accused is 3uilty of possession of unlicensed firearm. 4o e1culpate himself( the accused must prove absence of animus possidendi. Peo?>e oE t@e P@0>0??0nes 3s. Be4n0e 2o4te6 y Natan0o( et.a>.( ).*. Nos. 131+1/720( $eb. 1( 2000
May EI>lo=iGe= ;e GiGen a Per?i or Li"en=e4

In the case of an e1plosive( a permit or license to possess it is usually 3ranted to minin3 corporations( military personnel and other le3itimate users. Peo?>e oE t@e P@0>0??0nes 3s. A5C5sto Lo4eto *0nCo4( ).*. No. 123/1,( Decembe4 /( 1/// 0nder !.A. +#%6( a separate conviction for ille3al possession of firearms and for homicide is not allowed. 8ith respect to the conviction of accused-appellant for ille3al possession of firearms under P.A. :o. "+''( it was held in the case of People vs. =olina and reiterated in the recent case of People vs. !onaldo NaldeB( that in cases where murder or homicide is committed with the use of an unlicensed firearm( there can be no separate conviction for the crime of 99

ille3al possession of firearms under P.A. :o. "+'' in view of the amendments introduced by !epublic Act :o. +#%6. 4hereunder( the use of unlicensed firearm in murder or homicide is simply considered as an a33ravatin3 circumstance in the murder or homicide and no lon3er as a separate offense. 9urthermore( the penalty for ille3al possession of firearms shall be imposed provided that no crime is committed. In other words( where murder or homicide was committed( the penalty for ille3al possession of firearms is no lon3er imposable since it becomes merely a special a33ravatin3 circumstance. AN%'7.'* %APP'N) LA. (*A 4200) It shall be unlawful for any person( not bein3 authoriBed by all the parties to any private communication or spo5en word( to tap any wire or cable( or by usin3 any other device or arran3ement( to secretly overhear( intercept( or record such communication or spo5en word by usin3 a device commonly 5nown as a dictaphone or dicta3raph or dectaphone or wal5ie-tal5ie or tape recorder( or however otherwise describedD
#ec. 1.

It shall also be unlawful for any person( be he a participant or not in the act or acts penaliBed in the ne1t precedin3 sentence( to 5nowin3ly possess any tape record( wire record( disc record( or any other such record( or copies thereof( of any communication or spo5en word secured either before or after the effective date of this Act in the manner prohibited by this law; or to replay the same for any other person or persons; or to communicate the contents thereof( either verbally or in writin3( or to furnish transcriptions thereof( whether complete or partial( to any other personD Provided( 4hat the use of such record or any copies thereof as evidence in any civil( criminal investi3ation or trial of offenses mentioned in section ; hereof( shall not be covered by this prohibition.
LISTENING TO CON,ERSATION IN E*TENSION LINE O) TELEP(ONE IS NOT WIRE.TAPPING

An e1tension telephone cannot be placed in the same cate3ory as a dictaphone( dicta3raph or the other devices 100

enumerated in Section " of !A 6#&& as the use thereof cannot be considered as tappin3 the wire or cable of a telephone line. 4he telephone e1tension in this case was not installed for that purpose. It <ust happened to be there for ordinary office use. It is a rule in statutory construction that in order to determine the true intent of the le3islature( the particular clauses and phrases of the statute should not be ta5en as detached and isolated e1pressions( but the whole and every part thereof must be considered in fi1in3 the meanin3 of any of its parts. ('' S-!A "";("#&,
A PERSON CALLING ANOT(ER B- P(ONE MA- SA)EL- PRESUME T(AT T(E OT(ER MA- (A,E AN E*TENSION LINE AND RUNS T(E RIS@ O) BEING (EARD B- A CRD PART-.

An e1tension telephone is an instrument which is very common especially now when the e1tended unit does not have to be connected by wire to the main telephone but can be moved from place to place within a radius of a 5ilometer or more. A person should safely presume that the party he is callin3 at the other end of the line probably has an e1tension telephone and he runs the ris5 of a third party listenin3 as in the case of a party line or a telephone unit which shares its line with another.
MERE ACT O) LISTENING TO A TELEP(ONE CON,ERSATION IN AN E*TENSION LINE IS NOT PUNIS(ED BANTI.WIRE TAPPING LAW

It can be readily seen that our lawma5ers intended to discoura3e throu3h punishment( persons such as 3overnment authorities or representatives of or3aniBed 3roups from installin3 devices in order to 3ather evidence for use in court or to intimidate( blac5mail or 3ain some unwarranted advanta3e over the telephone users. -onsequently( the mere act of listenin3( in order to be punishable must strictly be with the use of the enumerated devices in !A 6#&& or others of similar nature. 8e are of the view that an e1tension telephone is not amon3 such devices or arran3ements.
REPUBLIC ACT F&C2. AN ACT PENALI1ING T(E PIL)ERAGE O) ELECTRICIT- AND T(E)T O) POWER TRANSMISSION

101

LINES8MATERIALS! RATIONALI1ING S-STEMS LOSSES BP(ASING OUT PIL)ERAGE LOSSES AS A COMPONENT T(EREO)! AND )OR OT(ER PURPOSES.

PurposeD Its purpose is to prevent losses by penaliBin3 the pilfera3e of electricity and theft of power transmission linesEmaterials. In order for the electric industry to remain viable and sustainable( electricity theft must be stopped and discoura3ed startin3 from its ori3ins( the consumers.
#?o5ses Anton0o and Lo4na -50s0mb0nC 3s. 1AN'LA L 2%%*'2 2O1PANY RTJ.55.$%%C. G.R. No. $%25%C! A>ril C! 2332L

4he law says that before immediate disconnection may be allowed( the discovery of the ille3al use of electricity must have been personally witnesses and attested to b an officer of the law or by authoriBed G!@ representative. In this case( the disconnection was effected immediately after the discovery of the alle3ed meter tamperin3( which was witnesses only be =eralco*s employees. 4hat the G!@ representative was alle3edly present when the meter was e1amined in the =eralco laboratory will not cure the defect.
%& $% O$ L 2%*'2'%Y AND "'OLA%'ON O$ P.D. 401 DISTINGUIS(ED

It must be stressed that theft of electricity is a felony defined and penaliBed under the !evised Penal -ode( while Niolation of P.A. 6&"( as amended by @.P. @l3. +7'( is an offense punished by a special law. 8hat 3enerally ma5es the former a felony is criminal intent (dolo, or ne3li3ence (culpa,; what ma5es the latter a crime is the special law enactin3 it. In addition( the elements of the two (#, offenses are different from one another. In theft( the elements are D(", intent to 3ain; (#, unlawful ta5in3; (;, personal property belon3in3 to another; (6, and absence of violence or intimidation a3ainst persons or force upon thin3s. >n the other hand( the crime of Niolation of P.A. 6&"( as amended by @.P. @l3. +7'( is mala prohibita. 4he criminal act is not inherently immoral but becomes punishable only because the law says it is forbidden. 8ith these crimes( the sole issue is whether the law has been violated. -riminal intent is not necessary.

102

(&ia0 vs. &avao Li,-t and Po=er Co.) *nc. et. Al.) G.R. "35$#$) April ) 7558% # FUAL &A*A##1 N% LA. (*A 9,99)
WOR@! EDUCATION OR TRAINING.RELATED SE*UAL (ARASSMENT DE)INED.

8or5( education or trainin3-related se1ual harassment is committed by an employer( employee( mana3er( supervisor( a3ent of the employer( teacher( instructor( professor( coach( trainor( or any other person who( havin3 authority( influence or moral ascendancy over another in a wor5 or trainin3 or education environment( demands( requests or otherwise requires any se1ual favor from the other( re3ardless of whether the demand( request or requirement for submission is accepted by the ob<ect of said Act.
W(EN SE*UAL (ARASSMENT IS COMMITTEDD

EorC) +ducation &efined

or ?rainin,-related

9exual

1arassment

8or5( education or trainin3-related se1ual harassment is committed by an employer( employee( mana3er( supervisor( a3ent of the employer( teacher( instructor( professor( coach( trainor( or any other person who( havin3 authority( influence or moral ascendancy over another in a wor5 or trainin3 or education environment( demands( requests or otherwise requires any se1ual favor from the other( re3ardless of whether the demand( request or requirement for submission is accepted by the ob<ect of said Act. In :or'.rela e< or e?>loy?en enGiron?en D (", 4he se1ual favor is made as a condition in the hirin3 or in the employment( re-employment or continued employment of said individual( or in 3rantin3 said individual favorable compensation( terms( conditions( promotions( or privile3es; or the refusal to 3rant the se1ual 103

(#, (;,

favor results in limitin3( se3re3atin3 or classifyin3 the employee which in any way would discriminate( deprive or diminish employment opportunities or otherwise adversely affect said employee; 4he above acts would impair the employee2s ri3hts or privile3es under e1istin3 labor laws; or 4he above acts would result in an intimidatin3( hostile( or offensive environment for the employee.

In an e<u"a ion or raining enGiron?en D (", (#, (;, A3ainst one who is under the care( custody or supervision of the offender; A3ainst one whose education( trainin3( apprenticeship or tutorship is entrusted to the offender; 8hen the se1ual favor is made a condition to the 3ivin3 of a passin3 3rade( or the 3rantin3 of honors and scholarships or the payment of a stipend( allowance or other benefits( privile3es( or considerations; or 8hen the se1ual advances result in an intimidatin3( hostile or offensive environment for the student( trainee or apprentice.

(6,

Any person who directs or induces another to commit any act of se1ual harassment as herein defined( or who cooperates in the commission thereof by another without which it would not have been committed( shall also be held liable under this Act.
JURISPRUDENCE:

$>o4a>de 3s. 2o54t oEE A??ea>s( ().*. No. 12304,( A5C5st ,( 2000) JSe1ual harassment in the wor5place is not about a man ta5in3 advanta3e of a woman by reason of se1ual desire; it is about power bein3 e1ercised by as superior officer

104

over his women subordinates. 4he power emanates from the fact that the superior can remove the subordinate from his wor5place if the latter would refuse his amorous advances. Dom0nCo 3. *aya>a( G.R. No. $77&C$! )e;. &! 2333 Se1ual harassment is an imposition of misplaced JsuperiorityK which is enou3h to dampen an employee*s spirit and her capacity for advancement. It effects her sense of <ud3ment. *n &omin,o v. Rayala) it was held. JIt is true that this provision calls for a demand( request or requirement of a se1ual favor be articulated in a cate3orical oral or written statement. It may be discerned( with equal certitude( from the acts of the offender.K Bacs0n 3s. .a@0man) ().*. No. 14+053( A?40> 30( 200,) In this case( it was held thatD JIn 3rave misconduct( the elements of corruption( clear intent to violate the law( or fla3rant disre3ard of established rule must be manifest. 4he act of petitioner of fondlin3 one of his students is a3ainst law( !A 7+77( and is doubtless ine1cusable. 4he particular act of petitioner cannot in any way be construed as a case of simple misconduct. Se1ually molestin3 a child is( by any norm( a revoltin3 act that it cannot be cate3oriBed as a 3rave offense. Parents entrust the care and moldin3 of their children to teachers( and e1pect them to be their 3uardians while in school. Petitioner has violated that trust. 4he char3e of 3rave misconduct proven a3ainst petitioner demonstrates his unfitness to remain as a teacher and continue to dischar3e the functions of his office.K steban 3s. #and0Canbayan (G.R. .os. " 33 3- $%) 'arc"") 755# In this case( the Supreme -ourt held thatD 8hile it is true( as petitioner ar3ues( that public office is not an element of the crime of acts of lasciviousness( defined and penaliBed under Article ;;' of the !evised Penal -ode( nonetheless( he could not have committed the crimes char3ed were it not for the fact that the Presidin3 )ud3e of the =4--( @ranch "( -abanatuan -ity( he has the authority to recommend the appointment of Ana =ay as boo5binder. In other words( the 105

crimes alle3edly committed are intimately connected with his office.

2&'LD AND YOU%& . L$A* 2OD ( PD +03 A0t@ Amendments)

RELIGIOUS INSTRUCTION

4he reli3ious education of children in all public and private schools is a le3itimate concern of the -hurch to which the students belon3. All churches may offer reli3ious instruction in public and private elementary and secondary schools( sub<ect to the requirements of the -onstitution and e1istin3 laws.

TERMINATION O) RIG(TS O) PARENTS

8hen a child shall have been committed to the Aepartment of Social 8elfare or any duly licensed child placement a3ency or individual pursuant to an order of the court( his parents or 3uardian shall thereafter e1ercise no authority over him e1cept upon such conditions as the court may impose.
,IOLATION O) PD 63C B- A C(ILD Pro#i;i e< A" =:

It shall be unlawful for any child to leave the person or institution to which he has been <udicially or voluntarily committed or the person under whose custody he has been placed in accordance with the ne1t precedin3 article( or for any person to induce him to leave such person or institution( e1cept in case of 3rave physical or moral dan3er( actual or imminent( to the child. Any violation of this article shall be punishable by an imprisonment of not more than one year or by a fine of not more than two thousand pesos( or both such fine and imprisonment at the discretion of the courtD Provided( 4hat if the violation is committed by a forei3ner( he shall also be sub<ect to deportation.
CARE O) -OUT()UL O))ENDER

106

(ELD )OR E*AMINATION OR TRIAL

A youthful offender held for physical and mental e1amination or trial or pendin3 appeal( if unable to furnish bail( shall from the time of his arrest be committed to the care of the Aepartment of Social 8elfare or the local rehabilitation center or a detention home in the province or city which shall be responsible for his appearance in court whenever requiredD Provided( 4hat in the absence of any such center or a3ency within a reasonable distance from the venue of the trial( the provincial( city and municipal <ail shall provide quarters for youthful offenders separate from other detainees. 4he court may( in its discretion( upon recommendation of the Aepartment of Social 8elfare or other a3ency or a3encies authoriBed by the -ourt( release a youthful offender on reco3niBance( to the custody of his parents or other suitable person who shall be responsible for his appearance whenever required.
SUSPENSION O) SENTENCE AND COMMITMENT O) -OUT()UL O))ENDER

If after hearin3 the evidence in the proper proceedin3s( the court should find that the youthful offender has committed the acts char3ed a3ainst him the court shall determine the imposable penalty( includin3 any civil liability char3eable a3ainst him. ?owever( instead of pronouncin3 <ud3ment of conviction( the court shall suspend all further proceedin3s and shall commit such minor to the custody or care of the Aepartment of Social 8elfare( or to any trainin3 institution operated by the 3overnment( or duly licensed a3encies or any other responsible person( until he shall have reached twentyone years of a3e or( for a shorter period as the court may deem proper( after considerin3 the reports and recommendations of the Aepartment of Social 8elfare or the a3ency or responsible individual under whose care he has been committed. 4he youthful offender shall be sub<ect to visitation and supervision by a representative of the Aepartment of Social 8elfare or any duly licensed a3ency or such other officer as the -ourt may desi3nate sub<ect to such conditions as it may prescribe.

107

PD 1210
ARTICLE $5$ O) PD 63C IS (EREBAMENDED TO READ AS )OLLOWS

/Article "&". -are of Fouthful >ffender ?eld for G1amination or 4rial. - A youthful offender held for physical and mental e1amination or trial or pendin3 appeal( if unable to furnish bail( shall from the time of his arrest be committed to the care of the Aept. of Social Services and Aevelopment or the local rehabilitation center or a detention home in the province or city which shall be responsible for his appearance in court whenever requiredD Provided( that in the absence of any such center or a3ency within a reasonable distance from the venue of the trial( the provincial( city and municipal <ail shall provide quarters for youthful offenders separate from other detainees. 4he court may( in its discretion upon recommendation of the Aepartment of Social Services T Aevelopment or other a3ency or a3encies authoriBed by the -ourt( release a youthful offender on reco3niBance( to the custody of his parents or other suitable person who shall be responsible for his appearance whenever required. ?owever( in the case of those whose cases fall under the e1clusive <urisdiction of the =ilitary 4ribunals( they may be committed at any military detention or rehabilitation center. PD 1210
ARTICLE $52 O) PD 63C AS AMENDED IS )URT(ER AMENDED TO READ AS )OLLOWSD

/Art. "$7. Suspension of sentence and -ommitment of Fouthful >ffender. - If after hearin3 the evidence in the proper proceedin3s( the court should find that the youthful offender has committed the acts char3ed a3ainst him( the court( shall determine the imposable penalty( includin3 any civil liability char3eable a3ainst him. ?owever( instead of pronouncin3 <ud3ment of conviction( the court upon application of the youthful offender and if it finds that the best interest of the public as well as that of the offender will be served thereby( may suspend all further proceedin3s and commit such minor to the custody or care of the Aepartment of Social Services and Aevelopment or to any trainin3 institution operated by the 3overnment or any other responsible person until he shall have reached twenty one years of a3e( or for a shorter period as the court may deem proper( after considerin3 the reports and recommendations of

108

the Aepartment of Social Services and Aevelopment or the 3overnment trainin3 institution or responsible person under whose care he has been committed. 0pon receipt of the application of the youthful offender for suspension of his sentence( the court may require the Aepartment of Social Services and Aevelopment to prepare and submit to the court a social case study report over the offender and his family. 4he Fouthful offender shall be sub<ect to visitation and supervision by a representative of the Aepartment of Social Services T Aevelopment or 3overnment trainin3 institution as the court may desi3nate sub<ect to such conditions as it may prescribe. 4he benefits of this article shall not apply to a youthful offender who has once en<oyed suspension of sentence under its provisions or to one who is convicted of an offense punishable by death or life imprisonment or to one who is convicted for an offense by the =ilitary 4ribunals. PD 119/
APPEAL

4he order of the court denyin3 an application for suspension of sentence under the provisions of Article "%# above shall not be appealable./
RETURN O) T(E -OUT()UL O))ENDER TO T(E COURT

8henever the youthful offender has been found incorri3ible or has wilfully failed to comply with the conditions of his rehabilitation pro3rams( or should his continued stay in the trainin3 institution be inadvisable( he shall be returned to the committin3 court for the pronouncement of <ud3ment. 8hen the youthful offender has reached the a3e of twenty-one while in commitment( the court shall determine whether to dismiss the case in accordance with the e1tent precedin3 article or to pronounce the <ud3ment conviction. In the latter case( the convicted offender may apply for

109

probation under the provisions of Presidential :umbered :ine ?undred and Si1ty-Gi3ht.

Aecree

In any case covered by this article( the youthful offender shall be credited in the service of his sentence with the full time spent in actual commitment and detention effected under the provisions of this -hapter./
*A 9+10 C(ILD ABUSE LAW C(ILD PROSTITUTION AND OT(ER SE*UAL ABUSE

-hildren( whether male or female( who for money( profit( any other consideration or due to the coercion or influence any adult( syndicate or 3roup( indul3e in se1ual intercourse lascivious conduct( are deemed to be children e1ploited prostitution and other se1ual abuse.

or of or in

4he penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the followin3D (a, 4hose who en3a3e in or promote( facilitate or induce child prostitution which include( but are not limited to( the followin3D (", Actin3 as a procurer of a child prostitute; (#, Inducin3 a person to be a client of a child prostitute by means of written or oral advertisements or other similar means; (;, 4a5in3 advanta3e of influence or relationship to procure a child as prostitute; (6, 4hreatenin3 or usin3 violence towards a child to en3a3e him as a prostitute; or ($, ivin3 monetary consideration 3oods or other pecuniary benefit to a child with intent to en3a3e such child in prostitution. (b, 4hose who commit the act of se1ual intercourse of lascivious conduct with a child e1ploited in prostitution or sub<ect to other se1ual abuse; Provided( 4hat when the victims is under twelve ("#, years of a3e( the perpetrators shall be prosecuted under Article ;;$( para3raph ;( for rape

110

and Article ;;' of Act :o. ;+"$( as amended( the !evised Penal -ode( for rape or lascivious conduct( as the case may beD Provided( 4hat the penalty for lascivious conduct when the victim is under twelve ("#, years of a3e shall reclusion temporal in its medium period; and (c, 4hose who derive profit or advanta3e therefrom( whether as mana3er or owner of the establishment where the prostitution ta5es place( or of the sauna( disco( bar( resort( place of entertainment or establishment servin3 as a cover or which en3a3es in prostitution in addition to the activity for which the license has been issued to said establishment.
ATTEMPT TO COMMIT C(ILD PROSTITUTION

4here is an attempt to commit child prostitution under Section $( para3raph (a, hereof when any person who( not bein3 a relative of a child( is found alone with the said child inside the room or cubicle of a house( an inn( hotel( motel( pension house( apartelle or other similar establishments( vessel( vehicle or any other hidden or secluded area under circumstances which would lead a reasonable person to believe that the child is about to be e1ploited in prostitution and other se1ual abuse. 4here is also an attempt to commit child prostitution( under para3raph (b, of Section $ hereof when any person is receivin3 services from a child in a sauna parlor or bath( massa3e clinic( health club and other similar establishments. A penalty lower by two (#, de3rees than that prescribed for the consummated felony under Section $ hereof shall be imposed upon the principals of the attempt to commit the crime of child prostitution under this Act( or( in the proper case( under the !evised Penal -ode.
C(ILD TRA))IC@ING

Any person who shall en3a3e in tradin3 and dealin3 with children includin3( but not limited to( the act of buyin3 and sellin3 of a child for money( or for any other consideration( or barter( shall suffer the penalty of reclusion temporal to reclusion perpetua. 4he penalty shall be imposed in its ma1imum period when the victim under twelve ("#, years of a3e.

111

ATTEMPT TO COMMIT C(ILD TRA))IC@ING

4here is an attempt to commit child traffic5in3 under Section 7 of this ActD (a, 8hen a child travels alone to a forei3n country without valid reason therefor and without clearance issued by the Aepartment of Social 8elfare and Aevelopment or written permit or <ustification from the child2s parents or le3al 3uardian; (b, 8hen a person( a3ency( establishment or child-carin3 institution recruits women or couples to bear a children for the purpose of child traffic5in3; or (c, 8hen doctor( hospital or clinic official or employee( nurse( midwife( local civil re3istrar or any other person simulates birth for the purpose of child traffic5in3; (d, 8hen a person en3a3es in the act of findin3 children amon3 low-income families( hospitals( clinics( nurseries( day-care centers( or other childdurin3 institutions who can be offered for the purpose of child traffic5in3. A penalty lower two (#, de3rees than that prescribed for the consummated felony under Section 7 hereof shall be imposed upon the principals of the attempt to commit child traffic5in3 under this Act.
OBSCENE PUBLICATIONS AND INDECENT S(OWS

Any person who shall hire( employ( use( persuade( induce or coerce a child to perform in obscene e1hibitions and indecent shows( whether live or in video( or model in obscene publications or porno3raphic materials or to sell or distribute the said materials shall suffer the penalty of prision mayor in its medium period.

112

If the child used as a performer( sub<ect or sellerEdistributor is below twelve ("#, years of a3e( the penalty shall be imposed in its ma1imum period. Any ascendant( 3uardian( or person entrusted in any capacity with the care of a child who shall cause andEor allow such child to be employed or to participate in an obscene play( scene( act( movie or show or in any other acts covered by this section shall suffer the penalty of prision mayor in its medium period.
OT(ER ACTS O) NEGLECT! ABUSE! CRUELT- OR E*PLOITATION AND OT(ER CONDITIONS PREJUDICIAL TO T(E C(ILDMS DE,ELOPMENT

(a, Any person who shall commit any other acts of child abuse( cruelty or e1ploitation or to be responsible for other conditions pre<udicial to the child2s development includin3 those covered by Article $% of Presidential Aecree :o. '&;( as amended( but not covered by the !evised Penal -ode( as amended( shall suffer the penalty of prision mayor in its minimum period. (b, Any person who shall 5eep or have in his company a minor( twelve ("#, years or under or who in ten ("&, years or more his <unior in any public or private place( hotel( motel( beer <oint( discotheque( cabaret( pension house( sauna or massa3e parlor( beach andEor other tourist resort or similar places shall suffer the penalty of prision mayor in its ma1imum period and a fine of not less than 9ifty thousand pesos (P$&(&&&,D Provided( 4hat this provision shall not apply to any person who is related within the fourth de3ree of consan3uinity or affinity or any bond reco3niBed by law( local custom and tradition or acts in the performance of a social( moral or le3al duty. (c, Any person who shall induce( deliver or offer a minor to any one prohibited by this Act to 5eep or have in his company a minor as provided in the precedin3 para3raph shall suffer the penalty of prision mayor in its medium period and a fine of not less than 9orty thousand pesos (P6&(&&&,; Provided( however( 4hat should the perpetrator be an ascendant( stepparent or 3uardian of the minor( the penalty

113

to be imposed shall be prision mayor in its ma1imum period( a fine of not less than 9ifty thousand pesos (P$&(&&&,( and the loss of parental authority over the minor. (d, Any person( owner( mana3er or one entrusted with the operation of may public or private place of accommodation( whether for occupancy( food( drin5 or otherwise( includin3 residential places( who allows any person to ta5e alon3 with him to such place or places any minor herein described shall be imposed a penalty of prision mayor in its medium period and a fine of not less than 9ifty thousand pesos (P$&(&&&,( and the loss of the license to operate such a place or establishment. (e, Any person who shall use( coerce( force or intimidate a street child or any other child toD (", (#, (;, @e3 or use be33in3 as a means of livin3; Act as conduit or middlemen in dru3 traffic5in3 or pushin3; or -onduct any ille3al activities( shall suffer the penalty of prision correccional in its medium period to reclusion perpetua.

9or purposes of this Act( the penalty for the commission of acts punishable under Articles #6+( #6%( #'#( para3raph #( and #';( para3raph " of Act :o. ;+"$( as amended( the !evised Penal -ode( for the crimes of murder( homicide( other intentional mutilation( and serious physical in<uries( respectively( shall be reclusion perpetua when the victim is under twelve ("#, years of a3e. 4he penalty for the commission of acts punishable under Article ;;7( ;;%( ;6& and ;6" of Act :o. ;+"$( as amended( the !evised Penal -ode( for the crimes of qualified seduction( acts of lasciviousness with the consent of the offended party( corruption of minors( and white slave trade( respectively( shall be one (", de3ree hi3her than that imposed by law when the victim is under twelve ("#, years a3e. 4he victim of the acts committed under this section shall be entrusted to the care of the department of Social 8elfare and Aevelopment.
C(ILDREN AS 1ONES O) PEACE

114

-hildren are hereby declared as Lones of Peace. It shall be the responsibility of the State and all other sectors concerned to resolve armed conflicts in order to promote the 3oal of children as Bones of peace. 4o attain this ob<ective( the followin3 policies shall be observed. (a, -hildren shall not be the ob<ect of attac5 and shall be entitled to special respect. 4hey shall be protected from any form of threat( assault( torture or other cruel( inhumane or de3radin3 treatment; (b, -hildren shall not be recruited to become members of the Armed 9orces of the Philippines of its civilian units or other armed 3roups( nor be allowed to ta5e part in the fi3htin3( or used as 3uides( couriers( or spies; (c, Aelivery of basic social services such as education( primary health and emer3ency relief services shall be 5ept unhampered; (d, 4he safety and protection of those who provide services includin3 those involved in fact-findin3 missions from both 3overnment and non-3overnment institutions shall be ensured. 4hey shall not be sub<ected to undue harassment in the performance of their wor5; (e, Public infrastructure such as schools( hospitals and rural health units shall not be utiliBed for military purposes such as command posts( barrac5s( detachments( and supply depots; and (f, All appropriate steps shall be ta5en to facilitate the reunion of families temporarily separated due to armed conflict.
RIG(TS O) C(ILDREN ARRESTED )OR REASONS RELATED TO ARMED CON)LICT

Any child who has been arrested for reasons related to armed conflict( either as combatant( courier( 3uide or spy is entitled to the followin3 units;

115

(a, Separate detention from adults e1cept where families are accommodated as family units; (b, Immediate free le3al assistance; (c, Immediate notice of such arrest to the parents or 3uardians of the child; and (d, !elease of the child on reco3niBance within twenty-four (#6, hours to the custody of the Aepartment of Social 8elfare and Aevelopment or any responsible member of the community as determined by the court. If after hearin3 the evidence in the proper proceedin3s the court should find that the aforesaid child committed the acts char3ed a3ainst him( the court shall determine the imposable penalty( includin3 any civil liability char3eable a3ainst him. ?owever( instead of pronouncin3 <ud3ment of conviction( the court shall suspend all further proceedin3s and shall commit such child to the custody or care of the Aepartment of Social 8elfare and Aevelopment or to any trainin3 institution operated by the overnment( or dulylicensed a3encies or any other responsible person( until he has had reached ei3hteen ("+, years of a3e or( for a shorter period as the court may deem proper( after considerin3 the reports and recommendations of the Aepartment of Social 8elfare and Aevelopment or the a3ency or responsible individual under whose care he has been committed. 4he aforesaid child shall sub<ect to visitation and supervision Aevelopment or any duly-licensed a3ency such other officer as the court may desi3nate sub<ect to such conditions as it may prescribe. 4he aforesaid child whose sentence is suspended can appeal from the order of the court in the same manner as appeals in criminal cases.
CON)IDENTIALIT-

At the instance of the offended party( his name may be withheld from the public until the court acquires <urisdiction over the case. It shall be unlawful for any editor( publisher( and reporter or columnist in case of printed materials( announcer or producer in case of television and radio broadcastin3(

116

producer and director of the film in case of the movie industry( to cause undue and sensationaliBed publicity of any case of violation of this Act which results in the moral de3radation and sufferin3 of the offended party.
PEDOP(ILIA IS NOT INSANIT-

8hen accused-appellant was committed to the :ational -enter for =ental ?ealth( he was not dia3nosed as insane but was sufferin3 from pedop-ilia. 4hus( there is no doubt in our mind that he was sane durin3 his two-year confinement in the center( pedop-ilia bein3 dissimilar to insanity.

RA F67& EMPLO-MENT O) C(ILDREN

-hildren below fifteen ("$, years of a3e shall not be employed e1ceptD ", 8hen a child wor5s directly under the sole responsibility of his parents or le3al 3uardian and where only members of the employer2s family are employedD Provided( however( 4hat his employment neither endan3ers his life( safety( health and morals( nor impairs his normal development; Provided( further( 4hat the parent or le3al 3uardian shall provide the said minor child with the prescribed primary andEor secondary education; or #, 8here a child2s employment or participation in public entertainment or information throu3h cinema( theater( radio or television is essentialD Provided( 4he employment contract is concluded by the child2s parents or le3al 3uardian( with the e1press a3reement of the child concerned( if possible( and the approval of the Aepartment of Labor and GmploymentD and Provided( 4hat the followin3 requirements in all instances are strictly complied withD (a, 4he employer shall ensure the protection( health( safety( morals and normal development of the child; 117

(b, 4he employer shall institute measures to prevent the child2s e1ploitation or discrimination ta5in3 into account the system and level of remuneration( and the duration and arran3ement of wor5in3 time; and (c, 4he employer shall formulate and implement( sub<ect to the approval and supervision of competent authorities( a continuin3 pro3ram for trainin3 and s5ills acquisition of the requirements. In the above e1ceptional cases where any such child may be employed( the employer shall first secure( before en3a3in3 such child( a wor5 permit from the Aepartment of Labor and Gmployment which shall ensure observance of the child. 4he Aepartment of Labor and Gmployment shall promul3ate rules and re3ulations necessary for the effective implementation of this Section./
I) MINOR DO NOT APPL- )OR SUSPENSION O) SENTENCE IT IS DEEMED WAI,ED. T(E COURT CANNOT MOTU PROPIO GI,E (IM T(E BENE)ITS O) ART. $52

4he record( unfortunately for accused-appellant @uena( does not show that he filed with the trial court an application for suspension of sentence so as to put into operation the benevolent provisions of Presidential Aecree :o. '&;. 4he -ourt( therefore( has no other choice but to deny him this privile3e.
DISC(ARGE+ REPORT AND ECOMMENDATION O) T(E DEPARTMENT O) SOCIAL WEL)ARE! SUBJECT TO JUDICIAL RE,IEW

It is not the responsibility of this -ourt to order the release of accused !ic5y alit without the benefit of a review of the recommendation of the Aepartment of Social 8elfare by the trial court. Art "%' of PA '&; providesD /Art. "%'. 118

Aismissal of the case. . If it is shown to the satisfaction of the court that the youthful offender whose sentence has been suspended( has behaved properly and has shown his capability to be a useful member of the community( even before reachin3 the a3e of ma<ority( upon recommendation of the Aepartment of Social 8elfare( it shall dismiss the case and order his final dischar3e./ It is therefore clear that in cases where the AS8A recommends the dischar3e of a youthful offender( it is the trial court before whom the report and recommendation is sub<ect to <udicial review. !ecommendation alone is not sufficient to warrant the release of a youthful offender. In reviewin3 the AS8A2s recommendation( the trial <ud3e must not base his <ud3ment on mere conclusions but should see5 out concrete( material and relevant facts to confirm that the youthful offender has indeed been reformed and is ready to re-enter society as a productive and law-abidin3 citiBen. -aution( however( is 3iven to the trial court. 4o be3in with( the youthful offender is not to be tried anew for the same act for which he was char3ed. 4he inquiry is not a criminal prosecution but is rather limited to the determination of the offender2s proper education and rehabilitation durin3 his commitment in the 4rainin3 -enter and his moral and social fitness to re-<oin the community. (Pp. N. alit; ! %76;#( ;E"E%6,
SUSPENSION O) SENTENCE NOT APPLICABLE I) PENALT- IS RECLUSION PERPETUA! LI)E IMPRISONMENT OR DEAT(

As aforesaid( however( accused !ic5y alit and !aquel 4a3alo3 did not appeal from the <ud3ment of the trial court. :either did the People question the suspension of their sentence. 4he benefits of suspension of sentence are not available where the youthful offender has been convicted of an offense punishable by life imprisonment or death. 4he last para3raph of section # of Presidential Aecree :o. "#"&( which amended certain provisions of P.A. '&;( providesD /4he benefits of this article shall not apply to a youthful offender who has once en<oyed suspension of sentence under its provisions or to one who is convicted of an offense punishable by death or life imprisonment or to one who is convicted for an offense by the =ilitary 4ribunals./

119

(Par. 6( Sec. #( P.A. :o. ""7%( as amended by P.A. :o. "#"&; emphasis supplied,
(Pp. v. alit( supra.,

E,ER- ACCUSED IS PRESUMED TO BE SANE AT T(E TIME O) COMMISSION O) T(E CRIME

4he law presumes all acts to be voluntary( and that it is improper to presume that acts were done unconsciously. 4he quantum of evidence required to overthrow the presumption of sanity is proof beyond reasonable doubt. Since insanity is in the nature of a confession and avoidance( it must be proven beyond reasonable doubt. =oreover( an accused is presumed to have been sane at the time of the commission of the crime in the absence of positive evidence to show that he had lost his reason or was demented prior to or durin3 the perpetration of the crime. (Pp. v. -ordova( supra.,
)AILURE O) DE)ENSE TO AS@ )OR SUSPENSION O) ARRAIGNMENT NEGATES INSANIT-

Appellant Gduardo -ordova did not even as5 for the suspension of his arrai3nment on the 3round that he was sufferin3 from insanity. Para3raph (a,( Section "#( !ule ""' of the !evised !ules of -ourt provides that the arrai3nment of an accused who appears to be sufferin3 from an unsound mental condition which effectively renders him unable to fully understand the char3e a3ainst him and to plead intelli3ently thereto( shall be suspended. In the case at bar( Gduardo -ordova even too5 the witness stand to testify. (Pp. N. -ordova( supra.,
C(ILD N -OUT( WEL)ARE CODE! NOT APPLICABLE TO DEAT( OR RECLUSION PERPETUA SENTENCE

4he -hild and Fouth 8elfare -ode does not apply to those convicted of offenses punishable by death( or reclusion perpetua (Presidential Aecree :o. '&;( as amended by Presidential Aecree :. '&;( as amended by Presidential Aecree :os. ""7% and "#"&,. 4he fact is @olioc is now twenty-three years old. ?e is not entitled to a suspended sentence. ?e is entitled to a two-de3ree reduction of the 120

penalty (Art. '+( !P-,. $E;&E+;,

(Pp.

N.

=endeB;

L-6+";";

SUSPENSION O) SENTENCE+ CANNOT BE A,AILED O) W(ERE O))ENDER IS ALREAD- O,ER 2$ -EARS OLD AT T(E TIME O) PROMULGATION O) (IS SENTENCE

It is true that Nenancio Nillanueva was a youthful offender as defined by Art. "+% because he was under #" years of a3e when he committed the offense on 9ebruary ##( "%76. ?owever( when he was sentenced on )uly ;&( "%7$( he was over #" years old and under the terms of Art. "%# (as well as Art. "%7, he was no lon3er entitled to suspension of sentence. (Nillanueva v. -9I; ! L-6$7%+( "#E"$E+#,
W(EN PRESIDENTIAL DECREE NO. 63C MA- BE GI,EN RETROACTI,E E))ECT

8here P.A. '&; is more favorable to the accused in that the sentence a3ainst them may he suspended( said Aecree may be 3iven retroactive effect( not only with the end in view of 3ivin3 force and effect to the laudable policies for which the P.A. otherwise 5nown as the -hild and Fouth 8elfare -ode was promul3ated( hut also in the li3ht of the provisions of Article ## of the !evised Penal -ode. (People v. arcia; ! L-6$#+&-+"( 'E""E+",
PRESIDENTIAL DECREE NO. 63C+ ALTERNATI,E COURSES O) ACTION O) T(E COURT W(EN -OUT()UL O))ENDER IS RETURNED A)TER REAC(ING T(E AGE O) MAJORIT-

4he trial court has two alternative courses of action with respect to a youthful offender whose sentence it had suspended and who is returned to the court upon his reachin3 the a3e of ma<ority. 4hese areD (", to dismiss the case and order the final dischar3e of said offender; or (#, to pronounce the <ud3ment of conviction. In plain and simple lan3ua3e( it is either dismissal or sentence. (Pp. N. arcia; supra.,
CI,IL LIABILIT- O) -OUT()UL O))ENDER! DE)INED

121

4he civil liability for dama3es referred to is apparently that obli3ation created by or arisin3 from the crime( otherwise 5nown as ex delicto the imposition of which is mandated by Articles "&&( "&6(;,( "&7 and ;6$(", of the !evised Penal -ode( (People vs. PeUa( L-;'6;6( Aecember #&( "%77( +& S-!A $+%( $%%, and is based upon a findin3 of the 3uilt of the accused. (Pp. N. arcia( supra.,
JURISPRUDENCE: P+:PL+ A9. A2+LL:) G.R. .:. "#"$#7) 'ARC1 7#) 755$

=ore importantly( AAA cannot be considered a child under Section ;(a, of !.A. :o. 7'"& which readsD (a, J-hildrenK refers to person below ei3hteen ("+, years of a3e or those over but are unable to fully ta5e care of themselves or protect themselves from abuse( ne3lect( cruelty( e1ploitation or discrimination because of a physical or mental disability or condition; HGmphasis suppliedI 4he implementin3 rules elaborated on this definition when it defined a JchildK as one who is below "+ years of a3e or oGer =ai< age :#o! u>on eGalua ion o9 a Ouali9ie< >#y=i"ian! >=y"#ologi= or >=y"#ia ri= ! i= 9oun< o ;e in"a>a;le o9 a'ing "are o9 #er=el9 9ully ;e"au=e o9 a >#y=i"al or ?en al <i=a;ili y or "on<i ion or o9 >ro e" ing #er=el9 9ro? a;u=e.
P OPL "#. AD LADO *A)ADAO AN)UA2( ).*. NO. 19+944( J5ne 5( 200/

Sec. $(a, of !A 7'"& refers to en3a3in3 in or promotin3( facilitatin3( or inducin3 child prostitution. Sec. $(b,( on the other hand( relates to offenders who commit the act of se1ual intercourse or lascivious conduct with a child e1ploited in prostitution or =u;Je" o o #er =eIual a;u=e . 4he informations char3ed accused-appellant with havin3 se1ual con3ress with AAA throu3h force( threats( and intimidation. 4hese alle3ations more properly fall under a char3e under Sec. $(b,.

122

P OPL O$ %& P&'L'PP'N # "#. ABAY( ).*. NO. 199952( $ B*UA*Y 24( 200/

0nder Section $(b,( Article III of !A 7'"& in relation to !A +;$;( if the victim of se1ual abuse is below "# years of a3e( the offender should not be prosecuted for se1ual abuse but for statutory rape under Article #''-A(",(d, of the !evised Penal -ode and penaliBed with reclusion perpetua. >n the other hand( if the victim is "# years or older( the offender should be char3ed with either se1ual abuse under Section $(b, of !A 7'"& or rape under Article #''-A (e1cept para3raph "HdI, of the !evised Penal -ode. ?owever( the offender cannot be accused of both crimes for the same act because his ri3ht a3ainst double <eopardy will be pre<udiced. A person cannot be sub<ected twice to criminal liability for a sin3le criminal act. Li5ewise( rape cannot be comple1ed with a violation of Section $(b, of !A 7'"&. 0nder Section 6+ of the !evised Penal -ode (on comple1 crimes,( a felony under the !evised Penal -ode (such as rape, cannot be comple1ed with an offense penaliBed by a special law.

* PUBL'2 A2% NO. ,4,4 (%@e Access De30ce *eC5>at0on) An act re3ulatin3 the issuance and use of access devices( prohibitin3 fraudulent acts committed relative thereto( providin3 penalties and for other purposes. 4he recent advances in modern technolo3y have led to the e1tensive use of certain devices in commercial transactions( promptin3 the State to re3ulate the same. hence( on 9ebruary ;( "%%+( -on3ress enacted !epublic Act :umber +6+6( otherwise 5nown as ?-e Access &evices Re,ulation Act of "$$4. 4ermed as /access devices/ by !A :o. +6+6( any card( plate( code( account number( electronic serial number( personal identification number( or other telecommunication service( equipment( or instrumental identifier( or other means of account access t hat can be used to obtain money( 3ood( services or any other thin3 of value or to initiate transfer of funds (other than transfer ori3inated solely by paper 123

instrument, is now sub<ect to re3ulation. 4he issuance and use of access devices are ou3ht to re3ulate in order to protect the ri3hts and define the liabilities of parties in commercial transactions involvin3 them. Gssentially( the law imposes duties both to the access device issuer and holder( and penaliBe certain acts deemed unlawful for bein3 detrimental to either the issuer or holder( or both. 4he law mandates an access device issuer( or /card issuer(/ to disclose either in writin3 or orally in any application or solicitation to open a credit card account the followin3D ", annual percenta3e rate; #, annual and other fees; ;, and balance calculation method; 6, cash advance fee; and $,, over the limit fee. =oreover( the computation used in order to arrive at such char3es and fees required( to the e1tent practicable( to be e1plained in detail and a clear illustration of the manner by which it is made to apply is also necessary. :onetheless( there are certain e1ceptions for the above requirement of disclosure not to apply. 4his is when application or solicitation is made throu3h telephone( provided that the issuer does not impose any annual fee( and fee in connection with telephone solicitation unless the customer si3nifies acceptance by usin3 the card( and that a clear disclosure of the information enumerated in the precedin3 para3raph is made in writin3 within thirty (;&, after the consumer requests for the card( but in no event later than the date of the delivery of the card( and that the consumer is not obli3ated to accept the card or account and the consumer will not be obli3ated to pay any fees or char3es disclosed unless the consumer accepts the card or account by usin3 the card. 9ailure on the part of the issuer to fulfill the above requirements will result in the suspension or cancellation of its authority to issue credit cards( after due notice and hearin3( by the @an5o Sentral n3 Pilipinas( the Securities and G1chan3e -ommission and such other 3overnment a3encies. In sum therefore( the above omission is made punishable if the followin3 elements occur. >ne( there is an 124

application or solicitation. Second( such application or solicitation should include the information required by law. and third( failure on the part of the issuer to disclose such information. In one case (Grmitano v. ! :o. "#7#6'( April #"( "%%%,( the Supreme -ourt had the occasion to rule on the validity of contracts involvin3 credit cards. 4he credit cards holder contended that the credit card company should be blamed for the char3es the same bein3 unwarranted by the contract. As stipulated( once a lost card has been reported( purchases made thereafter should not accrue on the part of the holder. 4he -ourt said notwithstandin3 the fact that the contract of the parties is a contract of adhesion the same is valid. ?owever( if the same should include terms difficult to interpret as to hide the true intent to the detriment of the holder( holdin3 it void requires no hesitation. 4hus( contracts which provide for ambi3uous terms of payment( imposition of char3es and fees may be held void invo5in3 the principle of the contract of adhesion. -learly( in this case decided in "%%%( the -ourt was concerned about an access device issuer2s vulnerability to abuse the provisions of the contract. It is quite surprisin3( however( that the -ourt did not ma5e reference to !A :o. +6+6 to thin5 that it was already in effect when the resolution was promul3ated. :onetheless( in American G1press International -o.( Inc. vs. IA- ( ! :>. 7&7''( :ovember %( "%++, Supreme -ourt turned down the ar3ument of private respondent 3rounded on the adhesion principle sayin3 indeed( in a contract of adhesion the ma5er of the contract has all the advanta3es( however( the one to whom it is offered has the absolute prero3ative to accept or deny the same. >n the other hand( an access device holder may be penaliBed when he or she fraudulently applied for such device. An access device fraudulently applied for means any access device that was applied for or issued on account of the use of falsified document( false information( fictitious identities and addresses( or any form of false pretense or misrepresentation. 4hus( the use( traffic5in3 in( possession( 125

and inducin3( enticin3 or in any manner allowin3 one to use access device fraudulently applied for are considered unlawful. 4he element of fraud is indispensable for this provision of !A +6+6 to apply. It is a condition sine qua non before one may be char3ed with the defined offense. 4hus( the law provides for presumptions of Intent to defraud on the basis of mere possession( control or custody ofD a, an access device without lawful authority; b, a counterfeit access device; any device ma5in3 or alterin3 equipment; c, an access device or medium on which an access device is written not in the ordinary course of the possessor2s business; or d, any 3enuine access device( not in the name of the possessor. A card holder who abandons or surreptitiously leaves the place of employment( business or residence stated in his application for credit card( without informin3 the credit card company of the place where he could actually be found( if at the time of such abandonment or surreptitious leavin3( the outstandin3 and unpaid balance is past due for at least ninety (%&, days and is more than ten thousand pesos (P"&(&&&.&&,( shall be prima facie presumed to have used his credit card with intent to defraud. At first 3lance( the above presumptions( when applied in real cases( may suffer from constitutional infirmities. 4he constitution provides that a person shall not be held to answer to a criminal offense without due process of law. it may be ar3ued that such presumptions are rebuttable ones. ?owever( the dan3er lies in the shiftin3 of the burden of proof from the prosecution to the defense. 4he law provides for si1teen ("', prohibited acts which refer to the production( use( possession of or traffic5in3 in unauthoriBed or counterfeit access devices. It also includes acts deemed fraudulent that increase the amount involved in commercial transactions usin3 access devices. >btainin3 money or anythin3 of value throu3h the use of an access device with intent to defraud or 3ain( and fleein3 thereafter.

126

In the final analysis( the law basically see5s to address the issue of fraud in the issuance and use of access devices( especially credit cards. 9raud may be committed by the issuer by ma5in3 false or va3ue information in the application or solicitation to open credit card accounts. 4he applicant or holder( on the other hand( fraudulently misrepresents himself by 3ivin3 wron3 identity( false profession or employment( or bloated income. 4a5e the case for instance of -itiban5 v. atchalian ( ! :o. """###( )anuary "+( "%%$, which shows how credit card applicants throu3h false representation were able to amass in simple terms P7%&(&&&.&& from petitioner. In this case( two employees of the Asian-Pacific @roadcastin3 -o(. Inc. (A@-I, applied for nineteen ("%( credit cards with -itiban5 usin3 different names other than their real names. 4he -itiban5 approved the applications and the credit cards were delivered to them for use. ?owever( this case involves an ille3al dismissal case where a -itiban5 employee was found 3uilty of 3ross ne3li3ence for effectin3 the delivery of the credit cards. ?er dismissal was affirmed in this case. Insofar as access device issuers are concerned( Germitano v. -.A.( may be a case in point. 4he credit card holder lost his credit card which he immediately reported to the card issuer. 4he contract stipulated that in case of lost( the same should be reported immediately( otherwise purchases made shall be char3ed to the holder. In this case( despite the prompt reportin3 of the holder( the issuer still char3ed the purchases a3ainst the former. 4he -ourt in this case held the issuer in breach of the contract. 4he penalties provided for by !A +6+6 are imprisonment and fine. Imprisonment is from si1 (', years to ten ("&, years and fine ran3es from ten thousand pesos ("&(&&&.&&, or twice the value of the offense( whichever is hi3her. 4he penalties are increased in case the offender has a similar previous conviction( meanin3 if he was previously found violatin3 !A +6+6. In which case( the accused shall suffer imprisonment of not less than twelve ("#, years and not more than twenty (#&, years.

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4he two other sta3es of felony( as defined by the !evised Penal -ode is also made punishable. 4hus( attempted and frustrated are meted out with the penalties of imprisonment and fine albeit only in fractions of the above penalties. !.A. +6+6 may seem to favor the issuer. A credit card company may only be meted out the penalty of cancellation or suspension( which may be considered as mere administrative sanctions. In fact( it is not the courts which impose such sanctions but administrative a3encies such as the @an35o Sentral and the Securities and G1chan3e -ommission. >n the other hand( a holder or mere possessor of a counterfeit fraudulently applied for access device may be convicted and be made to suffer imprisonment and fine.
JU*'#P*UD N2 F 20t0banB 3 )atc@a>0an) ().*. No. 111222( Jan5a4y 1,( 1//5)

It shows how credit card applicants throu3h false representation were able to amass in simple terms P7%&(&&&.&& from petitioner. In this case( two employees of the Asian-Pacific @roadcastin3 -o.( Inc. (A@-I, applied for nineteen ("%, credit cards with -itiban5 usin3 different names other than their real names. 4he -itban5 approved the applications and the credit cards were delivered to them for use. ?owever( this case involves an ille3al dismissal case where a -itiban5 employee was found 3uilty of 3ross ne3li3ence for effectin3 the delivery of the credit cards. ?er dismissal was affirmed in this case. Insofar as access device issuers are concerned( Germitano v. -A( may be a case in point. 4he credit card holder lost his credit card which he immediately reported to the card issuer. 4he contract stipulated that in case of lost( the same should be reported immediately( otherwise purchaser made shall be char3ed to the holder. In this case( despite the prompt reportin3 of the holder( the issuer still char3ed the purchases a3ainst the former. 4he -ourt in this case held that issuer in breach of the contract.

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PD F3% T(E P(ILIPPINE )IS(ERIES CODE DR.A. &773E

O;Je" iGe=: a. b. c. d. e. -onservation( protection and sustained mana3ement of the country*s fishery and aquatic resources. Poverty alleviation and the provision of supplementary livelihood amon3 municipal fisherfol5; Improvement of productivity of aquaculture within ecolo3ical limits; >ptimal utiliBation of offshore and deep-sea resources; and 0p3radin3 of post-harvest technolo3y.

In :posa v. Factora) Jr. the -ourt stated that the ri3ht to a balanced and healthful ecolo3y need not even be written in the -onstitution for it is assumed( li5e other civil and political ri3hts 3uaranteed in the @ill of !i3hts( to e1ist from the inception of man5ind and it is an issue of transcendental importance with inter3eneration implications. Gven assumin3 the absence of a cate3orical le3al provision specifically proddin3 petitioners to clean up the bay( they and the men and women representin3 them cannot escape their obli3ation to future 3enerations of 9ilipinos to 5eep the waters of the =anila @ay clean and clear humanly as possible. Anythin3 less would be a betrayal of the trust reposed in them.
P OPL 3s. P*'#2'LLA BALA#A( DGR No. $36C7F! Se> e?;er C! $55&E

8here the accused committed qualified violation of PA7&6 (fishin3 with the use of e1plosives,( the imposable penalty for which is life imprisonment to death. If the accused is entitled to a miti3atin3 circumstance of voluntary surrender( the court should impose life imprisonment applyin3( in a suppletory character( Article "; and '; of the !evised Penal -ode.
*P 3s. 2A (#e?. 30(1///( ).*. 1222+/)

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4he trial court has no <urisdiction to ma5e a disposition of inalienable public land.
P OPL O$ %& P&'L'PP'N # "#. 1A2A*A N ! G.R. No. L. C2$66 $& O" o;er $5FF

?owever( at present( there is no more doubt that electro fishin3 is punishable under the 9isheries Law and that it cannot be penaliBed merely by e1ecutive revolution because Presidential Aecree :o. 7&6( which is revision and consolidation of all laws and decrees affectin3 fishin3 and fisheries and which was promul3ated on =ay "'( "%7$ (7" >. . 6#'%,( e1pressly punishes electro fishin3 in fresh water and salt water areas. 4hat decree providesD SG-. ;;. Q Ille3al fishin3( dealin3 in ille3ally cau3ht fish or fisheryEaquatic products. Q It shall he unlawful for any person to catch( ta5e or 3ather or cause to be cau3ht( ta5en or 3athered fish or fisheriesEaquatic products in Philippine waters with the use of e1plosives( obno1ious or poisonous substance( or by the use of electricity as defined in para3raphs (",( (m, and (d,( respectively( of Section ; hereofDV 4he decree Act. :o. 6&&;( as amended( !epublic Acts :os. 6#+( ;&6+( ;$"# and ;$+'( Presidential Aecrees :os. 6;( $;6 and $;;( and all( Acts( G1ecutive >rders( rules and re3ulations or parts thereof inconsistent with it (Sec. 6%( P.A. :o. 7&6,. 4he inclusion in that decree of provisions definin3 and penaliBin3 electro fishin3 is a clear reco3nition of the deficiency or silence on that point of the old 9isheries Law. It is an admission that a mere e1ecutive re3ulation is not le3ally adequate to penaliBe electro fishin3. :ote that the definition of electro fishin3( which is found in section "(c, of 9isheries Administrative >rder :o. +6 and which is not provided for the old 9isheries Law( is now found in section ;(d, of the decree. :ote further that the decree penalty electro fishin3 by Jimprisonment from two (#, to four (6, yearsK( a punishment which is more severe that the

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penalty of a time of not e1cludin3 P$&& or imprisonment of not more than si1 months or both fi1ed in section ; of 9isheries Administrative >rder :o. +6.

'LL )AL * 2*U'%1 N%

JURISPRUDENCE:
P OPL O$ %& P&'L'PP'N # 1,2232( O2%OB * +( 200, "#. &U( ).*. NO.

Ille3al recruitment is committed when two elements concur( namelyD (", the offender has no valid license or authority required by law to enable him to lawfully en3a3e in the recruitment and placement of wor5ers; and (#, he underta5es any activity within the meanin3 of Jrecruitment and placementK defined under Article ";(b, of the Labor -ode. !ecruitment and placement is Jany act of canvassin3( enlistin3( contractin3( transportin3( utiliBin3( hirin3 or procurin3 wor5ers; and includes referrals( contact services( promisin3 or advertisin3 for employment( locally or abroad( whether for profit or notD Provided( that any person or entity which( in any manner( offers or promises for a fee employment to two or more persons shall be deemed en3a3ed in recruitment and placement.K 4he crime becomes Ille3al !ecruitment in Lar3e Scale when the fore3oin3 two elements concur( with the addition of a third element Q the recruiter committed the same a3ainst three or more persons( individually or as 3roup. A conviction for lar3e scale ille3al recruitment must be based on a findin3 in each case of ille3al recruitment of three or more persons whether individually or as a 3roup. 8hile it is true that the law does not require that at least three victims testify at the trial( nevertheless( it is necessary that there is sufficient evidence provin3 that the offense was committed a3ainst three or more persons. 8hile there were si1 private complainants in this case( four of whom were presented durin3 the trial( the prosecution( nonetheless( failed to establish that ?u en3a3ed in ille3al recruitment acts a3ainst at least three of these 131

complainants. In offenses in which the number of victims is essential( such as in the present petition( failure of the prosecution to prove by convincin3 evidence that the offense is committed a3ainst the minimum number of persons required by law is fatal to its cause of action. 0nderscorin3 the si3nificance of the number of victims was the disquisition of )ustice 9lorenB !e3alado in People v. :rti0-'iyaCeF I i= eGi<en #a in illegal re"rui ?en "a=e=! #e nu?;er o9 >er=on= Gi" i?iKe< i= <e er?ina iGe. W#ere illegal re"rui ?en i= "o??i e< again= a lone Gi" i?! #e a""u=e< ?ay ;e "onGi" e< o9 =i?>le illegal re"rui ?en :#i"# i= >uni=#a;le :i # a lo:er >enal y un<er Ar i"le C5D"E o9 #e La;or Co<e. -orollarily( where the offense is committed a3ainst three or more persons( it is qualified to ille3al recruitment in lar3e scale which provides a hi3her penalty under Article ;%(a, of the same -ode. (Gmphasis supplied.,
P OPL O$ %& P&'L'PP'N # "#. LO( ).*. NO. 19522/( JANUA*Y 2/( 200/

In a litany of cases( we held that to constitute ille3al recruitment in lar3e scale three (;, elements must concurD (a, the offender has no valid license or authority required by law to enable him to lawfully en3a3e in recruitment and placement of wor5ers; (b, the offender underta5es any of the activities within the meanin3 of /recruitment and placement/ under Art. ";( par. (b,( of the Labor -ode( or any of the prohibited practices enumerated under Art. ;6 of the same -ode (now Sec. '( !A +&6#,; and( (c, the offender committed the same a3ainst three (;, or more persons( individually or as a 3roup.
P OPL O$ %& P&'L'PP'N # "#. NO)*A( ).*. 190,34( AU)U#% 2/( 200,

4he defense of bein3 a mere employee is not a shield a3ainst his conviction for lar3e scale ille3al recruitment. In People v. Gasacao and People v. 9a,aya,a( the -ourt reiterated the rulin3 in People v. Cabais) People v. C-o=dury and People v. Corpu0 that an employee of a company or corporation en3a3ed in ille3al recruitment may be held liable as principal by direct participation( to3ether with its employer( if it is

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shown that he actively and consciously participated in the recruitment process.

P OPL O$ %& P&'L'PP'N # "#. LA**Y DO1'N)O( ).*. 1,1495( AP*'L 9( 200/

4hat no receipt or document in which appellant ac5nowled3ed receipt of money for the promised <obs was adduced in evidence does not free him of liability. 9or even if at the time appellant was promisin3 employment no cash was 3iven to him( he is still considered as havin3 been en3a3ed in recruitment activities( since Article ";(b, of the Labor -ode states that the act of recruitment may be for profit or not . It suffices that appellant promised or offered employment for a fee to the complainin3 witnesses to warrant his conviction for ille3al recruitment. LAPA9ARA. A9. P+:PL+ :F ?1+ P1*L*PP*.+9) G.R. .:. "8$$58) F+2R@AR/ "7) 755$ It is well established in <urisprudence that a person may be convicted of both ille3al recruitment and estafa. 4he reason( therefore( is not hard to discernD ille3al recruitment is malum pro-ibitum( while estafa is malum in se. In the first( the criminal intent of the accused is not necessary for conviction. In the second( such an intent is imperative.

RA 5$67 . SALE AND DISTRIBUTION

P+:PL+ :F ?1+ P1*L*PP*.+9 A9. &@'LA:) G.R. .:. "4"#$$) A@G@9? 75) 7554 4he pertinent portion of Sec. $( Art. II of !epublic Act %"'$ providesD
SG-. $. Sale( 4radin3( Administration( Aispensation( Aelivery( Aistribution and 4ransportation of Aan3erous Aru3s andEor -ontrolled Precursors and Gssential -hemicals. Q 4he penalty of life imprisonment to death and a fine ran3in3 from 9ive hundred thousand pesos (P$&&(&&&.&&, to 4en million pesos (P"&(&&&(&&&.&&, shall be imposed upon any person( who( unless authoriBed by law( shall sell(

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trade( administer( dispense( deliver( 3ive away to another( distribute( dispatch in transit or transport any dan3erous dru3( includin3 any and all species of opium poppy re3ardless of the quantity and purity involved( or shall act as a bro5er in any of such transactions. 1111

In the instant case( appellant is char3ed with sellin3 Jshabu(K which is a dan3erous dru3. Section ;(ii,( Art. I of !epublic Act %"'$ defines Jsellin3K as Jany act of 3ivin3 away any dan3erous dru3 andEor controlled precursor and essential chemical whether for money or any other consideration.K 4o sustain a conviction under this provision( the prosecution needs to establish sufficiently the identity of the buyer( seller( ob<ect and consideration; and( the delivery of the thin3 sold and the payment thereof. 8hat is material is proof that the transaction or sale actually too5 place( coupled with the presentation in court of the substance seiBed as evidence. 4he commission of the offense of ille3al sale of dan3erous dru3s requires merely the consummation of the sellin3 transaction( which happens the moment the buyer receives the dru3 from the seller. Settled is the rule that as lon3 as the police officer went throu3h the operation as a buyer and his offer was accepted by appellant and the dan3erous dru3s delivered to the former( the crime is considered consummated by the delivery of the 3oods.

P OPL

"#. DA*'#AN( ).*. NO. 19+151( JANUA*Y 30( 200/

4he followin3 are the elements of ille3al sale and ille3al possession of dan3erous dru3sD In a prosecution for ille3al sale of dan3erous dru3s( the followin3 elements must first be establishedD (", proof that the transaction or sale too5 place and (#, the presentation in court of the corpus delicti or the illicit dru3 as evidence. In a prosecution for ille3al possession of a dan3erous dru3( it must be shown that (", the accused was in possession of an item or an ob<ect identified to be a prohibited or re3ulated dru3( (#, such possession is not authoriBed by law( and (;, the

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accused was freely and consciously aware of bein3 in possession of the dru3.
P OPL "#. 2ON2 P2'ON( ).*. NO. 19,,9+( JUN 29( 200,

)urisprudence has firmly entrenched the followin3 as elements in the crime of ille3al sale of prohibited dru3sD (", the accused sold and delivered a prohibited dru3 to another( and (#, he 5new that what he had sold and delivered was a dan3erous dru3. 4hese two elements were clearly established in this case. 4he records show that appellants sold and delivered the s-abu to the PAGA a3ent posin3 as a poseurbuyer. 4he plastic sachets containin3 white crystalline substance( which were seiBed and were found positive for methylamphetamine hydrochloride (s-abu,( a dan3erous dru3( were identified and offered in evidence. 4here is also no question that appellants 5new that what they were sellin3 and deliverin3 was s-abu( a dan3erous dru3. Settled is the rule that the absence of a prior surveillance or test buy does not affect the le3ality of the buy-bust operation. 4here is no te1tboo5 method of conductin3 buy-bust operations. 4he -ourt has left to the discretion of police authorities the selection of effective means to apprehend dru3 dealers. A prior surveillance( much less a len3thy one( is not necessary especially where the police operatives are accompanied by their informant durin3 the entrapment. 9le1ibility is a trait of 3ood police wor5. In the instant case( the entrapment or buy-bust operation was conducted without the necessity of any prior surveillance because the confidential informant( who was previously tas5ed by the buy-bust team leader to order dan3erous dru3s from appellant Alfredo -oncepcion( accompanied the team to the person who was peddlin3 the dan3erous dru3s. 4he failure of the PAGA operatives to record the boodle money will not render the buy-bust operation ille3al. 4he recordin3 of mar5ed money used in a buy-bust operation is not one of the elements for the prosecution of sale of ille3al dru3s. 4he recordin3 or non-recordin3 thereof in an official record will not necessarily lead to an acquittal as lon3 as the sale of the prohibited dru3 is adequately proven. In the case at bar( P># Sistemio( the poseur buyer and P># Aro<ado testified as to how the s-abu sub<ect of the case was seiBed

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from appellants. Settled is the rule that in the prosecution for the sale of dan3erous dru3s( the absence of mar5ed money does not create a hiatus in the evidence for the prosecution as lon3 as the sale of dan3erous dru3s is adequately proven and the dru3 sub<ect of the transaction is presented before the court. :either law nor <urisprudence requires the presentation of any money used in the buy-bust operation. 8hat is material to a prosecution for ille3al sale of dan3erous dru3s is the proof that the transaction or sale actually too5 place( coupled with the presentation in court of the corpus delicti as evidence. 4he prosecution duly established both in this case.

P OPL

"#. LA)1AN( ).*. NO. 1+,+/5( D 2 1B * ,( 200,

4he essential elements of the crime of ille3al possession of re3ulated dru3s are the followin3D ", the actual possession of an item or ob<ect which is identified to be a prohibited dru3; (#, such possession is not authoriBed by law; and (;, the accused freely or consciously possessed the said dru3. HIlle3al possession of re3ulated dru3sI is mala pro-ibita( and( as such( criminal intent is not an essential element. ?owever( the prosecution must prove that the accused had the intent to possess (animus posidendi, the dru3s. Po==e==ion( under the law( includes not only a" ual possession( but also "on= ru" iGe possession. Actual possession e1ists when the dru3 is in the immediate physical possession or control of the accused. >n the other hand( constructive possession e1ists when the dru3 is under the dominion and control of the accused or when he has the ri3ht to e1ercise dominion and control over the place where it is found. G1clusive possession or control is not necessary. 4he accused cannot avoid conviction if his ri3ht to e1ercise control and dominion over the place where the contraband is located(
is shared with another. (Gmphasis and underscorin3 supplied,

4he findin3 of illicit dru3s and paraphernalia in a house or buildin3 owned or occupied by a particular person raises the presumption of 5nowled3e and possession thereof which( standin3 alone( is sufficient to convict.

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P OPL 200,

"#. D LA 2*U!( ).*. NO. 1,234,( NO" 1B * 2,(

4he elements in ille3al possession of dan3erous dru3 areD (", the accused is in possession of an item or ob<ect which is identified to be a prohibited dru3; (#, such possession is not authoriBed by law; and (;, the accused freely and consciously possessed the said dru3. >n the third element( we have held that the possession must be with 5nowled3e of the accused or that animus possidendi e1isted with the possession or control of said articles. -onsiderin3 that as to this 5nowled3e( a person*s mental state of awareness of a fact is involved( we have ruled thatD Since courts cannot penetrate the mind of an accused and thereafter state its perceptions with certainty( resort to other evidence is necessary. Animus possidendi( as a state of mind( may be determined on a case-to-case basis by ta5in3 into consideration the prior or contemporaneous acts of the accused( as well as the surroundin3 circumstances. Its e1istence may and usually must be inferred from the attendant events in each particular case. P OPL "#. 1A*%'N #'1ON(

4he final query is whether or not the Indeterminate Sentence Law is applicable to the case now before us. Apparently it does( since dru3 offenses are not included in nor has appellant committed any act which would put him within the e1ceptions to said law and the penalty to be imposed does not involve reclusion perpetua or death( provided( of course that the penalty as ultimately resolved will e1ceed one year of imprisonment. 4he more important aspect( however( is how the indeterminate sentence shall be ascertained. It is true that Section " of said law( after providin3 for indeterminate sentence for an offense under the !evised Penal -ode( states that Jif the offense is punished by any other law( the court shall sentence the accused to an indeterminate sentence( the ma1imum term of which shall not e1ceed the ma1imum fi1ed by said law and he minimum shall not be less than the minimum term prescribed by the sameK. 8e hold that this quoted portion of the section indubitably refers to an offense under a special law wherein the penalty imposed was not ta5en from and is without reference to the !evised Penal -ode as discussed in the precedin3

137

illustrations( such that it may be said that the Joffense is punishedK under that law. 4here can be no sensible debate that the aforequoted rule on indeterminate sentence for offenses under special laws was necessary because of the nature of the former type of penalties under said laws which were not included or contemplated in the scale of penalties in Article 7" of the -ode( hence there could be no minimum Jwithin the ran3e of he penalty ne1t lower to that prescribed by the -ode for the offense(K as is the rule for felonies therein. In the illustrative e1amples of penalties in special laws hereinbefore provided( this rule applied( and would still apply( only to the first and last e1amples. 9uthermore( considerin3 the vinta3e of Act. 6"&; as earlier noted( this holdin3 is but an application and is <ustified under the rule of contemporanea exposition. !epublic Act :o. '6#$( as now amended by !epublic Act :o. 7$'%( has unqualifiedly adopted the penalties under the !evised Penal -ode in their technical si3nification and effects. In fact( for purposes of determinin3 the ma1imum of said sentence( we have applied the provisions of he amended Section #& of said law to arrive at prision correctional and Article '6 of the -ode to impose the same in the medium period. Such offense( althou3h provided for in a special law( is now in the effect punished by and under the !evised -ode. 2UL%'"A%'ON JURISPRUDENCE:
P OPL O$ %& P&'L'PP'N # "#. *'2A*DO ALUNDAY( ).*. 1,154+( #e?tembe4 3( 200,

A perusal of Section %( Art. II of !.A. :o. '6#$ shows that a violation e1ists when a person shall cultivate( plant or culture on any medium Indian hemp( opium poppy (papaver somniferum, or any other plant which may hereafter be classified as dan3erous dru3. Indeed( ownership of the land where the mari<uana seedlin3s are planted( cultivated and cultured is not a requisite of the offense. C(AIN O) CUSTODP+:PL+ :F ?1+ P1*L*PP*.+9 A9. :2'*RA.*9) G.R. .:. "4" $7) &+C+'2+R "3) 7554

138

In criminal prosecutions( fundamental is the requirement that the elemental acts constitutin3 the offense be established with moral certainty as this is the critical and only requisite to a findin3 of 3uilt. In prosecutions involvin3 narcotics( the narcotic substance itself constitutes the corpus delicti of the offense and the fact of its e1istence is vital to sustain a <ud3ment of conviction beyond reasonable doubt. It is therefore of prime importance that in these cases( the identity of the dan3erous dru3 be li5ewise established beyond reasonable doubt. In other words( it must be established with unwaverin3 e1actitude that the dan3erous dru3 presented in court as evidence a3ainst the accused is the same as that seiBed from him in the first place. 4he chain of custody requirement performs this function in that it ensures that unnecessary doubts concernin3 the identity of the evidence are removed.

P OPL O$ %& P&'L'PP'N # "#. *O#AL #( 199220( AP*'L 24( 200/

).*. NO.

In a prosecution for ille3al sale of dan3erous dru3s( the followin3 elements must be establishedD (", proof that the transaction or sale too5 place; and (#, presentation in court of the corpus delicti or the illicit dru3 as evidence. 4he e1istence of dan3erous dru3s is a condition sine >ua non for conviction for the ille3al sale of dan3erous dru3s( it bein3 the very corpus delicti of the crime. -entral to this requirement is the question of whether the dru3 submitted for laboratory e1amination and presented in court was actually recovered from appellant. ?ence( the -ourt has adopted the chain of custody rule. As a method of authenticatin3 evidence( the chain of custody rule requires that the admission of an e1hibit be preceded by evidence sufficient to support a findin3 that the matter in question is what the proponent claims it to be. It would include testimony about every lin5 in the chain( from the moment the item was pic5ed up to the time it is offered into evidence( in such a way that every person who touched the e1hibit would describe how and from whom it was received( where it was and what happened to it while in the witness* possession( the condition in which it was received and the condition in which it was delivered to the ne1t lin5 in

139

the chain. 4hese witnesses precautions ta5en to ensure that the condition of the item and no in the chain to have possession supplied,

would then describe the there had been no chan3e in opportunity for someone not of the same. (0nderscorin3

P OPL O$ %& P&'L'PP'N # "#. *U'! )A*2'A( ).*. NO. 1934,0( $ B*UA*Y 25( 200/

A buy-bust operation 3ave rise to the present case. 8hile this 5ind of operation has been proven to be an effective way to flush out ille3al transactions that are otherwise conducted covertly and in secrecy( a buy-bust operation has a si3nificant downside that has not escaped the attention of the framers of the law. It is susceptible to police abuse( the most notorious of which is its use as a tool for e1tortion. In People v. ?an( this -ourt itself reco3niBed that Bby t-e very nature of anti-narcotics operations) t-e need for entrapment procedures) t-e use of s-ady c-aracters as informants) t-e ease =it- =-ic- sticCs of mari(uana or ,rams of -eroin can be planted in pocCets of or -ands of unsuspectin, provincial -icCs) and t-e secrecy t-at inevitably s-rouds all dru, deals) t-e possibility of abuse is ,reat. ?-us) courts -ave been ex-orted to be extra vi,ilant in tryin, dru, cases lest an innocent person is made to suffer t-e unusually severe penalties for dru, offenses.D Accordin3ly( specific procedures relatin3 to the seiBure and custody of dru3s have been laid down in the law (!.A. :o. %"'$, for the police to strictly follow. 4he prosecution must adduce evidence that these procedures have been followed in provin3 the elements of the defined offense. 4he chain of custody requirement is essential to ensure that doubts re3ardin3 the identity of the evidence are removed throu3h the monitorin3 and trac5in3 of the movements of the seiBed dru3s from the accused( to the police( to the forensic chemist( and finally to the court. It is important enou3h as a concern that Section "(b, of Aan3erous Aru3s @oard !e3ulation :o. "( Series of #&&# (which implements !.A. :o. %"'$, specifically defines chain of custody. J-hain of -ustodyK means the <uly re"or<e< au #oriKe< ?oGe?en = and custody of seiBed dru3s or 140

controlled chemicals or plant sources of dan3erous dru3s or laboratory equipment of each sta3e ! 9ro? #e i?e o9 =eiKure8"on9i="a ion o re"ei> in #e 9oren=i" la;ora ory o =a9e'ee>ing o >re=en a ion in "our 9or <e= ru" ion. Such record of movements and custody of seiBed item shall include the identity and si3nature of the person who held temporary custody of the seiBed item( the date and time when such transfer of custody were made in the course of safe5eepin3 and used in court as evidence( and the final disposition.

P OPL

"#. 1A)A%( ).*. NO. 19//3/( # P% 1B * 2/( 200,

!.A. :o. %"'$ had placed upon the law enforcers the duty to establish the chain of custody of the seiBed dru3s to ensure the inte3rity of the corpus delicti. 4hru proper e1hibit handlin3( stora3e( labelin3 and recordin3( the identity of the seiBed dru3s is insulated from doubt from their confiscation up to their presentation in court.

2A 142< AN A2% * )ULA%'N) %&

U#

O$ AL'A# #

P OPL "#. JO# P& J *2'%O 1+43+,7+/( AP*'L 2( 200/

#%*ADA(

%. AL.( ).*. NO.

JA name or names used by a person or intended to be used by -im ?5b>0c>y and @ab0t5a>>y usually in business transactions in addition to -is real name by =-ic- -e is re,istered at birt- or bapti0ed t-e first time or substitute name aut-ori0ed by a competent aut-ority .K 4here must be( in the words of @rsua( a Jsi,n or indication t-at t-e user intends to be Cno=n by t-is name (the alias, in addition to -is real name from t-at day fort- V Hfor the use of alias toI fall =it-in t-e pro-ibition contained in C.A. .o. " 7 as amended.K

141

PD 905<
%& $O* #%*Y 2OD O$ %& P&'L'PP'N #

J@R*9PR@&+.C+F
OLY1P'O * "ALDO "#. P OPL ( ).*. NO. 1905,/( AP*'L 1+( 200/

4here are two distinct and separate offenses punished under Section '+ of the 9orestry -ode( to witD (", -uttin3( 3atherin3( collectin3 and removin3 timber or other forest products from any forest land( or timber from alienable or disposable public land( or from private land without any authority; and Possession of timber or other forest products without the le3al documents required under e1istin3 forest laws and re3ulations.

(#,

As the -ourt held in People v. ;ue) in the first offense( one can raise as a defense the le3ality of the acts of cuttin3( 3atherin3( collectin3( or removin3 timber or other forest products by presentin3 the authoriBation issued by the AG:!. In the second offense( however( it is immaterial whether the cuttin3( 3atherin3( collectin3 and removal of the forest products are le3al or not. =ere possession of forest products without the proper documents consummates the crime. 8hether or not the lumber comes from a le3al source is immaterial because the 9orestry -ode is a special law which considers mere possession of timber or other forest products without the proper documentation as malum pro-ibitum.

RE,ISING PRESIDENTIAL DECREE NO. C&5! O%& *.'# :NO.N A# %& $O* #%*Y * $O*1 2OD O$ %& P&'L'PP'N #< -uttin3 of timber in private land and turnin3 to lumber in private land is a Niolation of 9orestry -ode. JURISPRUDENCE:

142

#es0nado 1e40da( 3s. Peo?>e oE t@e P@0>0??0nes( ).*. No. 15,1,2( J5ne 12( 200, 4he petitioner was char3ed with cuttin3 trees and convertin3 the same to lumber on private land( as violation to the forestry code. JA violation as made under the forestry code( if the specie of tree is listed on the prohibited sub<ect of the code( then( cuttin3 these prohibited trees from a private land then convertin3 it to lumber is a violation of the law. -learly( no construction is needed when the words of the law is unambi3uous and there is indication as re3ards a contrary le3islative intent.K Amado %ao?a( 3s. Peo?>e oE t@e P@0>0??0nes( ).*. No. 1,40/,( No3embe4 25( 200, JSection '+ of PA 7&$( as amended( refers to Articles ;&% and ;"& of the !evised Penal -ode (!P-, for the penalties to be imposed on violators. Niolation of Section '+ of PA 7&$( as amended( is punished as qualified theft. 4he law treats cuttin3( 3atherin3 collectin3 and possessin3 timber of other forest products without license as an offense as 3rave as and equivalent to the felony of qualified theft.K )a>o 1onCe( 3s. Peo?>e oE t@e P@0>0??0nes( ).*. No. 19030, Mar"# F! 233& JSection '+ of PA 7&$( as amended by G.>. :o. #77( criminaliBes two distinct and separate offenses( namelyD (a, the cuttin3( 3atherin3( collectin3 and removin3 of timber or other forest products from any forest land( or timber from alienable or disposable public land( or from private land without any authority; and (b, the possession of timber or other forest products without the le3al documents required under e1istin3 laws and re3ulations. AG:! Administrative >rder :o. $% series of "%%; specifies the documents required for the transport of timber and other forest products. Section ; thereof materially requires for the transport of lumber be accompanied by a certificate of lumber ori3in duly issued by the AG:!--G:!>. In the first offense( the le3ality of the acts of cuttin3( 3atherin3( collectin3 or removin3 timber or other forest products may be proven by the authoriBation duly issued by the AG:!. In the second offense( however( it is 143

immaterial whether or not the cuttin3 3atherin3( collectin3 and removal of forest products are le3al precisely because mere possession of forest products without the requisite documents consummates the crime. It is thus clear that the fact of possession by petitioner and Potencio of the sub<ect maho3any lumber and their subsequent failure to produce the requisite le3al documents( ta5en to3ether( has already 3iven rise to criminal liability under Section '% of PA :o. 7&$( particularly second act punished thereunder.K

%& 2*'1 O$ LAUND *'N) (* PUBL'2 A2% NO. /1+0)

PurposeD
It is hereby declared the policy of the State to protect and preserve the inte3rity and confidentiality of ban5 accounts and to ensure that the Philippines shall not be used as a money launderin3 sit for the proceeds of any unlawful activity. -onsistent with its forei3n policy( the State shall e1tend cooperation in transnational investi3ations and prosecutions of persons involved in money launderin3 activities wherever committed. %@e Ant071oney La5nde40nC 2o5nc0> A. POWERS AND DUTIES a, 4o require and receive covered or suspicious transaction reports from covered institutions; b, 4o issue orders addressed to the appropriate Supervisin3 Authority or the covered institutions to determine the true identity of the owner of any monetary instrument or property sub<ect of a covered transaction or suspicious transaction report or request for assistance from a forei3n State( or believed by the -ouncil( on the basis of substantial evidence( to be( in whole or in part( wherever located( representin3( involvin3( or related to directly or

144

indirectly( in any manner or by any means( the proceeds of an unlawful activity. c, 4o institute civil forfeiture proceedin3s and all other remedial proceedin3s throu3h the >ffice of th Solicitor eneral; d, 4o cause the filin3 of complaints with the Aepartment of )ustice or the >mbudsman for the prosecution of money launderin3 offenses; e, 4o investi3ate suspicious transactions and covered transactions deemed suspicious after an investi3ation by A=L-( money launderin3 activities and other violations of this Act;

f, 4o apply before the -ourt of Appeals( ex parte) for the freeBin3 of any monetary instrument or property alle3ed to be the proceeds of any unlawful activity as defined in Section ;(i, hereof; 3, 4o implement such measures as may be necessary and <ustified under this Act to counteract money launderin3; h, 4o receive and ta5e action in respect of( any request from forei3n states for assistance in their own antimoney launderin3 operations provided in this Act; i, 4o develop educational pro3rams on the pernicious effects of money launderin3( the methods and techniques used in the money launderin3( the viable means of preventin3 money launderin3 and the effective ways of prosecutin3 and punishin3 offenders; <, 4o enlist the assistance of any branch( department( bureau( office( a3ency( or instrumentality of the 3overnment( includin3 3overnment-owned and -controlled corporations( in underta5in3 any and all antimoney launderin3 operations( which may include the use of its personnel( facilities and resources for the more resolute prevention( detection( and investi3ation of money launderin3 offenses and prosecution of offenders; and

145

5, 4o impose administrative sanctions for the violation of laws( rules( re3ulations( and orders and resolutions issued pursuant thereto. (9ec. 8) RA $"35) as amended by RA $"$ % COMPOSITION O) AMLC A. overnor of the @an5o Sentral n3 Pilipinas as -hairman @. -ommissioner of the Insurance -ommission as =ember -. -hairman of the Securities and G1chan3e -ommission as =ember (9ec. 8) RA $"35) as amended by RA $"$ % JURISDICTIONS O) MONE- LAUNDERING CASES. 4he re3ional trial courts shall have <urisdiction to try all cases on money launderin3. 4hose committed by public officers and private persons who are in conspiracy with such public officers shall be under the <urisdiction of the Sandi3anbayan. (9ec. #) RA $"35% )REE1ING O) MONETAR- INSTRUMENT OR PROPERT4he -ourt of Appeals( upon application ex parte by the A=L- and after determination that probable cause e1ists that any monetary instrument or property is in any way related to an unlawful activity as defined in Section ;(i, hereof( may issue a freeBe order which shall be effective immediately. 4he freeBe order shall be for a period of twenty (#&, days unless e1tended by the court. (9ec. "5 of RA $"35) as amended by RA $"$ %
AUT(ORIT- TO IN0UIRE INTO BAN@ DEPOSITS

:otwithstandin3 the provisions of !epublic Act :o. "6&$( as amended( !epublic Act :o. '6#'( as amended( !epublic Act :o. +7%"( and other laws( the A=L- may inquire into or e1amine any particular deposit or investment with any ban5in3 institution or non-ban5 financial institution upon order of any competent court in cases of violation of this Act( when it has been established that there is probable cause that the deposits or investments are related to an unlawful activities as defined in Section ;(I, hereof or a money launderin3 offense under Section 6 hereof( e1cept that no

146

court order shall be required in cases involvin3 unlawful activities defined in Sections ;(I,"( (#, and ("#,. 4o ensure compliance with this Act( the @an35o Sentral n3 Pilipinas (@SP, may inquire into or e1amine any deposit of investment with any ban5in3 institution or non-ban5 financial institution when the e1amination is made in the course of a periodic or special e1amination( in accordance with the rules of e1amination of the @SP. (9ec. "" of RA $"35) as amended
by RA $"$ %

JURISPRUDENCE: *n t-e case of Peo?>e 3s. st4ada ().*. No. 1+43+,( A?40> 2( 200/) as re,ards t-e use of an alias) t-e 9upreme Court -eld t-at Bt-e repeated use of an alias =it-in a sin,le day cannot be deemed B-abitualD) as it does not amooffiunt to a customary practice or useD. In the case of Ant071oney La5nde40nC 2o5nc0> (A1L2) 3s. &on. 5Cen0o( t-e court -eld t-atF JIn addition to providin3 for the definition and penalties for the crime of money launderin3( the A=LA also authoriBes certain provisional remedies that would aid the A=L- in the enforcement of the A=LA. 4hese are the JfreeBe orderK authoriBed under Sec. "&( and Jthe ban5 inquiry orderK authoriBed under Section "". 111 Still( even if the ban5 inquiry order may be availed of without need of a pre-e1istin3 case under the A=LA( it does not follow that such order may be availed for ex parte. 4here are several reasons why the A=LA does not 3enerally sanction ex parte applications and issuance of the ban5 inquiry order.K

* PUBL'2 A2% /1+0 AN%'71ON Y LAUND *'N) A2%( A# A1 ND D BY * PUBL'2 A2% /1/4 DE)INITION O) TERMS (a, /2o3e4ed 'nst0t5t0onP refers toD

147

(", @an5s( non-ban5s( quasi-ban5s( trust entities( and all other institutions and their subsidiaries and affiliates supervised or re3ulated by the @an35o Sentral n3 Pilipinas (@SP,; (#, Insurance companies and all other institutions supervised or re3ulated by the Insurance -ommission; and (;, Securities dealers( bro5ers( salesmen( investment houses and other similar entities mana3in3 securities or renderin3 services as investment a3ent( advisor( or consultant( (ii, mutual funds( close and investment companies( common trust funds( pre-need companies and other similar entities( (iii, forei3n e1chan3e corporations( money chan3ers( money payment( remittance( and transfer companies and other similar entities( and (iv, other entities administerin3 or otherwise dealin3 in currency( commodities or financial derivatives based thereon( valuable ob<ects( cash substitutes and other similar monetary instruments or property supervised or re3ulated by Securities and G1chan3e -ommission.(9ec. 6-a) RA $"35% (b, 2o3e4ed %4ansact0on Q is a transaction in cash or other equivalent monetary instrument involvin3 a total amount in e1cess of 9ive ?undred 4housand Pesos (Php $&&(&&&.&&, within one ban5in3 day. (9ec. 6(b% of RA $"35) as amended by RA $"$ % (c, #5s?0c0o5s %4ansact0on Q are transactions with covered institutions( re3ardless of the amounts involved( where any of the followin3 circumstances e1istD ". 4here is no underlyin3 le3al or trade obli3ation( purpose or economic <ustification; #. 4he client is not properly identified; ;. 4he amount involved is not commensurate with the business or financial capacity of the client;

148

6. 4a5in3 into account all 5nown circumstances( it may be perceived that the client*s transaction is structured in order to avoid bein3 the sub<ect of $. reportin3 requirements under the Act; '. Any circumstances relatin3 to the transaction which is observed to deviate from the profile of the client andEor the client*s past transactions with the covered institution; 7. 4he transactions is in any way related to an unlawful activity or offense under this Act that is about to be( is bein3 or has been committed; or +. Any transactions that is similar or analo3ous to any of the fore3oin3. (9ec. b-") RA $"35 as amended by RA $"$ % (d, Un>aAE5> act030ty - refers to any act or omission or series or combination thereof involvin3 or havin3 direct relation to followin3D (", Midnappin3 for ransom under Article #'7 of Act :o. ;+"$( otherwise 5nown as the !evised Penal -ode( as amended; (#, Sections 6( $( '( +( %( "&( "#( ";( "6( "$( and "' of !epublic Act :o. %"'$( otherwise 5nown as the -omprehensive Aan3erous Act of #&&#; (;, Section ; para3raphs @( -( G( ( ? and I of republic Act :o. ;&"%( as amended( otherwise 5nown as the Anti- raft and -orrupt Practices Act; (6, Plunder under !epublic Act :o. 7&+&( as amended; ($, !obbery and e1tortion under Articles #%6( #%$( #%'( #%%( ;&&( ;&" and ;&# of the !evised Penal -ode( as amended; (', )ueten3 and =asiao punished as ille3al 3amblin3 under Presidential Aecree :o. "'&#;

149

(7, Piracy on the hi3h seas under the !evised Penal -ode( as amended and Presidential under the !evised Penal -ode( as amended and Presidential Aecree :o. $;#; (+, Pualified theft under Article ;"& of the !evised penal -ode( as amended; (%, Swindlin3 under Article ;"$ of the !evised Penal -ode( as amended; ("&, Smu33lin3 under !epublic Act :os. 6$$ and "%;7; ("", Niolations under !epublic Act :o. +7%#( otherwise 5nown as the Glectronic -ommerce Act of #&&&; ("#, ?i<ac5in3 and other violations under !epublic Act :o. '#;$; destructive arson and murder( as defined under the !evised Penal -ode( as amended( includin3 those perpetrated by terrorists a3ainst non-combatant persons and similar tar3ets; (";, 9raudulent practices and other violations under !epublic Act :o. +7%%( otherwise 5nown as the Securities !e3ulation -ode of #&&&; ("6, 9elonies or offenses of a similar nature that are punishable under the penal laws of other countries. (9ec. * of RA $"35) as amended by RA $"$ % (e, 1oney La5nde40nC OEEense. -- =oney launderin3 is a crime whereby the proceeds of an unlawful activity as herein defined are transacted( theeby ma5in3 them appear to have ori3inated from le3itimate sources. It is committed by the followin3D (a, Any person 5nowin3 that any monetary instrument or property represents( involves( or relates to( the proceeds of any unlawful activity( transacts or attempts to transact said monetary instrument or property.

150

(b, Any person 5nowin3 that any monetary instrument or property involves the proceeds of any unlawful activit( performs or fails to perform any act as a result of which he facilitates the offense of money launderin3 referred to in para3raph (a, above. (c, Any person 5nowin3 that any monetary instrument or property is required under this Act to be disclosed and filed with the Anti-=oney Launderin3 -ouncil (A=L-,( fails to do so./ (9ec. of RA $"35) as amended by RA $"$ %

P.D. 533 O* AN%'72A%%L

De9ini ion

*U#%L'N) LA.

2att>e745st>0nC is the ta5in3 away by any means( method or scheme( without the consent of the owner or raiser( of any cow( carabao( horse( mule( ass or other domesticated member of the bovine family( whether or not for profit or 3ain( or whether committed with or without violence a3ainst or intimidation of any person or force upon thin3s; and it includes the 5illin3 of lar3e cattle( or ta5in3 its meat or hide without the consent of the owner or raiser. (Pil-+y vs. People) G.R. .o. "# $ ") July $) 7558% ,iola ion o9 An i.Ca le Ru= ling La:+ Ele?en = ". Lar3e cattle is ta5en #. It belon3s to another ;. 4he ta5in3 is done without the consent of the owner or raiser 6. 4he ta5in3 is done by any means( method or scheme $. 4he ta5in3 is done with or without intent to 3ain 6. The ta ing i! a""o#$li!hed %ith or %itho&t violen"e or inti#idation again!t $er!on or 'or"e &$on thing!. (Pil-Ey vs. People, G.R. No. 154941, July 9, 2007)
DEEMED AS AN AMENDMENT O) T(E RE,ISED PENAL CODE ?owever( as we have declared in -anta( the computation of the penalty should be in accordance with our discussion in People v.

151

'acatanda ("$# 9CRA 35 %( which we quote herein for emphasis( thusD

8e do not a3ree with the Solicitor eneral that P.A. :o. $;; is a special law( entirely distinct from and unrelated to the !evised Penal -ode. 9rom the nature of the penalty imposed which is in terms of the classification and duration of penalties as prescribed in the !evised Penal -ode( which is not for penalties as are ordinarily imposed in special laws( the intent seems clear that P.A. $;; shall be deemed as an amendment of the !evised Penal -ode( with respect to the offense of theft of lar3e cattle (Art. ;"&,( or otherwise to be sub<ect to applicable provisions thereof such as Article "&6 of the !evised Penal -ode on civil liability of the offender( a provision which is not found in the decree( but which could not have been intended to be discarded or eliminated by the decree. Article '6 of the same -ode should( li5ewise( be applicable 1 1 1. ?ence( in the instant case( considerin3 that neither a33ravatin3 nor miti3atin3 circumstance attended the commission of the crime( the penalty to be imposed should be within the ran3e of prision correccional in its ma1imum period to prision mayor in its medium period( as minimum( to reclusion temporal in its minimum period( as ma1imum. 8e( thus( modify the minimum penalty imposed by the trial court to be four (6, years( two (#, months and one (", day of prision correccional. (Pil-+y vs. People) G.R. .o. "# $ ") July $) 7558%

*.A. 90,0< AN A2% D $'N'N) AND P NAL'!'N) %& 2*'1 O$ PLUND * JURISPRUDENCE: In the case of &+PA<A<*2: GARC*A vs. 9A.&*GA.2A/A. and R+P@2L*C it was held by the Supreme -ourt that J4he action of forfeiture arises when a Jpublic officer or employee HacquiresI durin3 his incumbency an amount of property which is manifestly out of proportion of his salary 1 1 1 and to his other lawful income 1 1 1.K Such amount of property is then presumed prima facie to have been unlawfully acquired. 4hus( Jif the respondent Hpublic officialI is unable to show to the satisfaction of he court hat 152

he has lawfully acquired the property in question( then the court shall declare such property forfeited in favor of the State( and by virtue of such <ud3ment the property aforesaid shall become property forfeited in favor of the Stat.K $*A% *N'%' #( #O*O*'%' #( AND O*)AN'!A%'ON# AND P*O"'D'N) P NAL%' # %& * $O* . * PUBL'2 A2% NO. ,04/. PurposeD Its purpose is to prevent the increasin3 number of deaths due to haBin3 and other forms of initiation rites.
CONDITIONS O) A LEGAL (A1ING OR INTITIATION RITES:

:o haBin3 or initiation rites in any form or manner by a fraternity( sorority or or3aniBation seven (7, days before the conduct of such initiations. 4he written notice shall indicate the period of the initiation activities which shall not e1ceed three (;, days( shall include the names of those to be sub<ected to such activities( and shall further contain an underta5in3 that no physical violence be employed by anybody durin3 such initiation rites. D 2* P NAL'!'N) OB#%*U2%'ON O$ APP* & N#'ON AND P*O# 2U%'ON O$ 2*'1'NAL O$$ N# # (P.D. 1,2/) PurposeD As stated in the law( its purpose is to discoura3e public indifference or apathy towards the apprehension and prosecution of criminal offenders( it is necessary to penaliBe acts which obstruct or frustrate or tend to obstruct or frustrate the successful apprehension and prosecution of criminal offenders. AC?a>o LeCa> Pp. 5#- 53% t@0cs( UP LaA 2ente4( 1/,0 d0t0on.

153

Acts which amount to obstruction in the administration of <ustice may ta5e many forms. 4hey include such acts as instructin3 a complainin3 witness in a criminal action not to appear at the scheduled hearin3 so that the case a3ainst the client( the accused( would be dismissed. (-antorne vs. Aucasin supra, as5in3 a client to plead 3uilty to a crime which the lawyer 5nows his client did not commit( (.ueno v. 9antos) $+ Phil. $$7 H"%;;I, advisin3 a client who is detained for a crime to escape from prison( (-f. 'edina v. /an) G.R. .o. 65$84) 9ept. 65) "$8 %) employin3 dilatory tactics to frustrate satisfaction of clearly valid claims( Pa(ares vs. Abad 9antos) .!. :o. #%$6;( :ove. #&( "%'%( ;& S-!A 76+, prosecutin3 clearly frivolous cases as appeals to drain the resources of the other party and compel him to submit out of e1haustion (Samar =inin3 -o. vs. Arnado( ! :o. ##;&6( )uly ;&( "%'+, and findin3 multiple petitions or complaints for cause that has been previously re<ected in the false e1pectation of 3ettin3 favorable action. ( Gabriel vs. Court of Appeals) G.R. .o. 68#8) July 65) "$83) 87 9CRA "86I Ramos vs. Potenciano) G.R. .o. 78"5 ) &ec. 75) "$83) 8 9CRA 6 #I 'acias v. @y <im) G.R. .o. 6""8 ) 'ay 65) "$87) # 9CRA 7#"% Acts of this or similar nature are 3rounds for disciplinary action.K JU*'#P*UD N2 < Posadas 3s. Omb5dsman( #e?tembe4 2000) ()* No. 1314/2( 2/

In this case( certain officials of the 0niversity of the Philippines (0P, were char3ed for violatin3 PA "+#%. 4he 0P officers ob<ected to the warrantless arrest of certain students by the :ational @ureau of Investi3ation (:@I,. Accordin3 to the Supreme -ourt( the police had no 3round for the warrantless arrest. 4he 0P >fficers( therefore( had a ri3ht to prevent the arrest of the students at the time because their attempted arrest was ille3al. 4he Jneed to enforce the law cannot be <ustified by sacrificin3 constitutional ri3hts.K n40>e 3s. &on. Am0n( ().*. No. /3335( #e?t. 13( 1//0) In this case( Sen. )uan Ponce Gnrile was char3ed under PA "+#%( for alle3edly accommodatin3 -ol. re3orio ?onasan by 3ivin3 him food and comfort on " Aecember "%+% in his 154

house. JMnowin3 that -olonel ?onasan is a fu3itive from <ustice( Sen. Gnrile alle3edly did not do anythin3 to have ?onasan arrested or apprehended.K 4he Supreme -ourt ruled that Sen. Gnrile could not be separately char3ed under PA "+#%( as this is absorbed in the char3e of rebellion already filed a3ainst Sen. Gnrile. *A NO. +53/< AN A2% P* " N%'N) AND P NAL'!'N) 2A*NAPP'N) A card holder who abandons or surreptitiously leaves the place of employment( business or residence stated in his application for credit card( without informin3 the credit card company of the place where he could actually be found( if at the time of such abandonment or surreptitious leavin3( the outstandin3 and unpaid balance is past due for at least ninety (%&, days and is more that ten thousand pesos (P"&(&&&.&&,( shall be prima facie presumed to have used his credit card with intent to defraud. 4he law provides for si1teen ("', prohibited acts which refer to the production( use( possession of or traffic5in3 in unauthoriBed or counterfeit access devices. It also includes acts deemed fraudulent that increase the amount involved in commercial transactions usin3 access devices. >btainin3 money or anythin3 of value throu3h the use of an access devise with intent to defraud or 3ain( and fleein3 thereafter. Peo?>e oE t@e P@0>0??0nes( ?>a0nt0EE7a??e>>ee( 3s. Noe> #antos y 240s?0no and $e>0c0ano $5nc0on a>0as JON7JON ) acc5sed) G.R. .o. "78#55) June 4) 7555. J-arnappin3(K as defined by !epublic Act :o. '$;%( or the Anti--arnappin3 Act( as amended( is the ta5in3( with intent to 3ain( of a motor vehicle belon3in3 to another without the latter*s consent( or by means of violence a3ainst or intimidation of persons( by usin3 force upon thin3s. @y the amendment in Section #& of !epublic Act :o. 7'$%( Section "6 of the Anti--arnappin3 Act now ma5es clear( amon3 others( the intention of the law to ma5e the offense a special comple1 crime( by or intimidation of persons. 4hus( under the last clause of Section "6 of he Anti--arnappin3 Act( the prosecution not only has to prove the essential requisites of 155

carnappin3 and of the homicide or murder of !uel =orales but more importantly( it must show that the ori3inal criminal desi3n of he culprit was carnappin3 and that the 5illin3 was perpetrated Jin the course of the commission of the carnappin3 or on the occasion thereof.K :eedless to say( where the elements of carnappin3 are not proved( the provisions of the Anti -arnappin3 Act would cease to be applicable and the homicide or murder (if proven, would be punishable under the !evised Penal -ode. Peo?>e oE t@e P@0>0??0nes( a??e>>ee( 3s. >C0n Latayada( (at lar,e%) appellant( .!. :o. "6'+'$. 9ebruary "+( #&&6. 0nder Section # of !A '$;%( carnappin3 is the ta5in3( with intent to 3ain( of a motor vehicle belon3in3 to another without the latter*s consent; or by means of violence a3ainst or intimidation of persons; or with the use of force upon thin3s . . . !A 7'$% introduced three amendments to the last clause of Section "6D (", the chan3e of the penalty from life imprisonment to reclusion perpetua( (#, the inclusion of rape( and (;, the chan3e of the phrase Jin the commission of the carnappin3K to Jin the course of the commission of the carnappin3 or on the occasion thereof. J4he -ourt has held that the third that the third amendment clarifies the intention of the law to ma5e the offense a special comple1 crime( in the third amendment clarifies the intention of the law to ma5e the offense a special comple1 crime( in the same way( that robbery with violence a3ainst or intimidation of persons is treated under para3raphs " to 6 Article #%6 of the !evised Penal -ode (!P-,. ?ence( the prosecution must prove not only that the essential requisites of carnappin3 were present; but also that it was the ori3inal criminal desi3n of the culprit( and that the 5illin3 was perpetrated Jin the course of the commission of the carnappin3 or on the occasion thereof.K In the present case( the prosecution had the burden of provin3 that ", appellant too5 the motorcycle; #, his ori3inal criminal desi3n was carnappin3; ;, he 5illed Payla; and 6, the 5illin3 was perpetrated Jin the course of the commission of the carnappin3 or on the occasion thereofK. It is indisputed that the motorcycle driven by Payla had been ta5en without his consent on >ctober #%( "%%$( and recovered days later in a cannibaliBed condition. 4he elements of ta5in3 and intent to 3ain were thus established. 4he prosecution also proved it was appellant who had 5illed him. It failed( however( to 156

dischar3e its burden of provin3 the two other requisites of carnappin3. Peo?>e oE t@e P@0>0??0nes( ?>a0nt0EE7a??e>ee 3s. )4eCo40on 1eD0a y "0>>aEan0a( dA0n Ben0to( Ped4o Pa4aan( and Jose?@ $ab0to( acc5sed7a??e>>ants( G.R. .os. ""4$ 5- " J ""$ 58. July 8) "$$8 !.A. :o. 7'$% which too5 effect on ;" Aecember "%%; is applicable to these cases because the crimes were committed on "& =arch "%%6. Section "6 of the Anti-arnappin3 Act was amended by Section #& of !A :o. 7'$% and now imposes the penalty of reclusion perpetua to death when the owner( driver( or occupant of the carnapped motor vehicle is 5illed or raped in the course of the commission of the carnappin3 or on the occasion thereof. 4hree amendments have this been made( viBD (", the chan3e of the penalty of life imprisonment to reclusion perpetua( (#, the inclusion of rape( and (;, the chan3e of the phrase Jin te commission of the carnappin3K to Jin the course of the commission of the carnappin3 or on the occasion thereofK. 4he latter ma5es clear the intention of the law to ma5e the offense a special comple1 crime( by way of analo3y vis-W-vis para3raphs " to 6 of Article #%6 of the !evised Penal -ode on robbery with violence a3ainst or intimidation of persons. As such( the 5illin3 (or the rape, merely qualifies the crime of carnappin3 in an a33ravated from. In short( considerin3 the phraseolo3y of the amended Section "6( the carnappin3 and the 5illin3 (or the rape, may be considered as a sin3le or indivisible crime or a special comple1 crime which( however( is not covered by Article 6+ of the !evised Penal -ode. Peo?>e oE t@e P@0>0??0nes( a??e>>ee( 3s. L50s0to D. B5st0ne4a( a??e>>ant. JIntent to 3ain or animus lucrandi is an internal act( presumed from unlawful ta5in3 of the motor vehicle. Actual 3ain is irrelevant as the important consideration is the intent to 3ain. 4he term J3ainK is not merely limited to pecuniary benefit but also includes the benefit which in any other sense may be derived or e1pected from the act which is performed. 4hus( the mere use of the thin3 which was ta5en without the owner*s consent constitutes 3ain.

157

In Nillacorta v. Insurance -ommission which was reiterated in Association of @aptists for 8orld Gvan3elism( Inc. v. 9ielmen*s Insurance -o.( Inc.( )ustice -laudio 4eehan5ee (later -hief )ustice,( interpretin3 the theft clause of an insurance policy( e1plained that( when one ta5es the motor vehicle of another without the latter*s consent even if the motor vehicle is later returned( there is theft( there bein3 intent to 3ain as the use of the thin3 unlawfully ta5en constitutes 3ainD Assumin3( despite the totally inadequate evidence( that the ta5in3 was JtemporaryK and for J<oy rideK( the -ourt sustains as the better view that which holds that when a person( either with the ob<ect of 3oin3 to certain place( a learnin3 how to drive( or en<oyin3 a free ride( ta5es possession of a vehicle belon3in3 to another( without the consent of its owner( he is 3uilty of theft because by ta5in3 possession of the personal property belon3in3 to another and usin3 it( his intent to 3ain is evident since he derives therefrom utility( satisfaction( en<oyment and pleasure. )ustice !amon -. Aquino cites in his wor5 roiBard who holds that the use of a thin3 constitutes 3ain and -uello -alon who calls it Jhurt de usoK. (underscorin3 supplied; citation omitted, Lt. )en. A>Eonso P. $acto4an( ).*. No. 1010,3( 30 J5>y 1//3 In the instant case( Gdma did not resort to( or avail or( any administrative remedy. ?e went strai3ht to court and filed a complaint for replevin and dama3es. Section + of Presidential Aecree :o. 7&$( as amended( states that (", all actions and decisions of the @ureau of 9orest Aevelopment Airector are sub<ect to review by the AG:! Secretary( (#, the decisions of the AG:! Secretary are appealable to the President; and (;, courts cannot review the decisions of the AG:! Secretary e1cept throu3h a special civil action for certiorari or prohibition. In &y( the -ourt held that all actions see5in3 to recover forest products in the custody of the AG:! shall be directed to that a3ency Q not the courts. Leona4do Paat( et. a>. 3. 2o54t oE A??ea>s( et a>.( G.R. No. $$$$3F! $3 January $55FE JV the enforcement of forestry laws( rules and re3ulations and the protection( development and mana3ement of forest 158

lands fall within the primary and special responsibilities of the Aepartment of Gnvironment and :atural !esources. @y the very nature of its function( the AG:! should be 3iven a free hand unperturbed by <udicial intrusion to determine a controversy which is well within its <urisdiction. 4he assumption by the trial court( therefore( of the replevin suit filed by private respondents constitutes and un<ustified encroachment into the domain of the administrative a3ency*s prero3ative. 4he doctrine of primary <urisdiction does not warrant a court to arro3ate unto itself the authority to resolve a controversy the <urisdiction over which is initially lod3ed with an administrative body of special competence. X11.

DAN) *OU# D*U) A2% O$ 2002 (*e?5b>0c Acts No. /1+5)

DE)INITIONS O) TERMS

C-emical &iversion Q the sale( distribution( supply or transport of le3itimately imported( in-transit( manufactured or procured controlled precursors and essential chemicals( in diluted( mi1tures or in concentrated form( to any person or entity en3a3ed in the manufacture of any dan3erous dru3( and shall include pac5a3in3( repac5a3in3( labelin3( relabelin3 or concealment of such transaction throu3h fraud( destruction of documents( fraudulent use of permits( misdeclaration( use of front companies or mail fraud. Controlled &elivery Q 4he investi3ative technique of allowin3 an unlawful or suspect consi3nment of any dan3erous dru3 andEor controlled precursor and essential chemical( equipment or paraphernalia( or property believed to be derived directly or indirectly from any offense( to pass into( throu3h or out of the country under the supervision of any unauthoriBed officer( with a view to 3atherin3 evidence to identify any person involved in any dan3erous dru3 related offense( or to facilitate prosecution of that offense. Controlled Precursor and +ssential C-emicals Q Includes those listed in 4ables I and II of the "%++ 0: -onvention A3ainst Illicit 4raffic in :arcotic Aru3s and Psychotropic Substances as enumerated in the attached anne1( which is an inte3ral part of this Act. 159

&ru, &ependence Q As based on the 8orld ?ealth >r3aniBation definition( it is a cluster of physiolo3ical( behavioral and co3nitive phenomena of variable intensity( in which the use of psychoactive dru3 ta5es on a hi3h priority thereby involvin3( amon3 others( a stron3 desire or a sense of compulsion to ta5e the substance and the difficulties in controllin3 substance-ta5in3 behavior in terms of its onset( termination( or levels of use. &ru, 9yndicate Q Any or3aniBed 3roup of two (#, or more persons formin3 or <oinin3 to3ether with the intention of committin3 any offense prescribed under this Act. *lle,al ?rafficCin, Q 4he ille3al cultivation( culture( delivery( administration( dispensation( manufacture( sale( tradin3( transportation( distribution( importation( e1portation( and possession of any dan3erous dru3 andEor controlled precursor and essential chemical. Protector!Coddler Q Any person who 5nowin3ly and willfully consents to the unlawful acts provided for in this Act and uses hisEher influence( power or position in shieldin3( harborin3( screenin3 or facilitatin3 the escape of any person heEshe 5nows( or has reasonable 3round to believe on or suspects( has violated the provision of this Act in order to prevent the arrest( prosecution and conviction of the violator. Pus-er Q Any person who sells( trades( administers( dispenses( delivers( or 3ives away to another( on any terms whatsoever( or distributes( dispatches in transit or transports dan3erous dru3s or who acts as a bro5er in any of such transaction( in violation of this Act. Plantin, of evidence Q the willful act by any person of maliciously and surreptitiously insertin3( placin3( addin3 or attachin3 directly or indirectly( throu3h any overt or covert act whatever quantity of any dan3erous dru3 andEor controlled precursor and essential chemical in the person( house( effects or in the immediate vicinity of an innocent individual for the purpose of implicatin3( incriminatin3( or imputin3 the commission of any violation of this Act. W#a are #e =igni9i"an ProGi=ion= in R.A. 6%27 #a #aGe ;een "#ange<4 160

". 0nder this Act there is no more distinction between prohibited dru3 and re3ulated dru3s andEor controlled precursors and essential chemicals enumerated in 4ables I and II of the "%++ 0: -onvention a3ainst Illicit 4raffic in :arcotic Aru3s and Psychotropic Substances. #. 4he penalties provided by !.A. 7'$% was chan3ed ( adoptin3 partially the penalties in !.A. '6#$. ;. In plantin3 evidence any person now maybe held liable. @efore( only law enforcement a3ents. 6. the provisions of the !evised Penal -ode have no suppletory effect e1cept for minors who may be sentenced to reclusion perpatua. W#a are #e ne: 'in<= o9 <rug= #a are in"lu<e< in R.A. 5$674 =ethylenedio1ymethamphetamine (=A=A, or commonly 5nown as JGcstasyK( or its any other name which refers to the dru3s havin3 such chemical composition( includin3 any of its isomers or derivatives in any form. Parametho1yamphetamine (P=A,( 4rimetho1yamphetamine (4=A,( lyser3ic acid diethylamine (LSA,( 3amma hydro1ybutyrate ( ?@, and those similarly desi3ned or newly introduced dru3s and their derivatives( without havin3 any therapeutic value or if the quantity possessed is far beyond therapeutic requirement( as determined and promul3ated by the @oard in accordance to Section %;( Art XI of this Act of !.A. %"'$.
ACTS PUNIS(ABLE UNDER T(E LAW

", Importation of any dan3erous dru3( re3ardless of the quantity and purity involved( includin3 any and all species of opium poppy or any part thereof or substances derived thereform even for floral( decorative and culinary purposes. #, Importation of any controlled precursor and essential chemical.

161

;, Importation of any dan3erous dru3 andEor controlled precursor and essential chemical throu3h the use of a diplomatic passport( diplomatic facilities or any other means involvin3 hisEher official status intended to facilitate the unlawful entry. 6, >r3aniBin3( mana3in3( or actin3 as a JfinancierK of any of the ille3al activities penaliBed under Section 6 of the Law. $, Actin3 as JprotectorEcoddlerK of anyone who violates Section 6 of the Law. ', Sale( tradin3( administration( dispensation( distribution and transportation of dan3erous dru3s( re3ardless of quantity and purity involved( or actin3 as a bro5er in any of such transactions. 7, Sale( tradin3( administration( dispensation( distribution and transportation of any controlled precursor and essential chemical( or actin3 as a bro5er in such transaction. +, 0se by dru3 pushers of minors or mentally incapacitated individuals as runners( couriers and messen3ers( or in any other capacity directly connected to the trade of dan3erous dru3s andEor controlled precursor and chemicals. %, Actin3 as a protectorEcoddler of any violator of the provision of Sec. $. "&, =aintenance of a Aen( Aive or !esort where any dan3erous dru3 is used or sold in any form. "", =aintenance of a Aen( Aive or !esort where any controlled precursors and essential chemical is used or sold in any form. "#, Actin3 as JprotectorEcoddlerK of a maintainer of a Aen( Aive( or !esort. ";, Gmployees and Nisitors of a Aen( Arive( or !esort "6, =anufacture of Aan3erous Aru3s andEor -ontrolled Precursors and Gssential -hemicals

162

"$, Actin3 as a protector or coddler of any violator of Sec. + "', Ille3al -hemical Aiversion of -ontrolled Precursor and Gssential -hemicals. "7, =anufacture or Aelivery of Gquipment( Instrument( Apparatus( and other Paraphernalia for Aan3erous Aru3s andEor -ontrolled Precursors and Gssential -hemicals. "+, Possession of Aru3. "%, Possession of equipment( Instrument( Apparatus( and >ther Paraphernalia for Aan3erous Aru3s #&, Possession of Aan3erous Aru3s Aurin3 Parties( Social atherin3 or =eetin3s. #", Possession of Gquipment( Instrument( Apparatus and >ther Paraphernalia for Aan3erous Aru3s durin3 Parties( Social atherin3 or =eetin3s. ##, 0se of Aan3erous Aru3s. #;, -ultivation or -ulture of Plants -lassified as Aan3erous Aru3s or are Sources thereof. #6, =aintenance and 5eepin3 of >ri3inal !ecords of 4ransaction on Aan3erous Aru3s andEor -ontrolled Precursors and Gssential -hemicals #$, 0nnecessary Prescription of Aan3erous Aru3s #', 0nlawful Prescription of Aan3erous Aru3s #7, Attempt or -onspiracy to commit the followin3 unlawful actsD (a, Importation of any dan3erous dru3s andEor controlled precursor and essential chemical; (b, Sale( tradin3( administration( dispensation( delivery( distribution( and transportation of any dan3erous dru3 andEor controlled precursor and essential chemical; (c, =aintenance of a den( dive( or resort where dan3erous dru3s is used in any form; (d, =anufacture of any dan3erous dru3 andEor controlled precursor and essential chemical; and (e, -ultivation or culture of plants which are sources of dan3erous dru3s. 163

CRIMINAL LIABILIT- O) ALIENS! O))ICERS O) PARTNERS(IP! CORPORATION! ASSOCIATIONS! OR OT(ER JURIDIUCAL ENTITIES

". In addition to the penalties prescribed in the unlawful act committed( any alien who violates such provisions of the Law( after service of sentences( shall be deported immediately without further proceedin3s( unless the penalty is death. #. In case the violation of the Law is committed by a partnership( corporation( association or any <uridical entity( the partner( president( director( mana3er( trustee( estate administrator( or officer who consents to or 5nowin3ly tolerates such violation shall be held criminally liable as co-principal. ;. 4he penalty provided for the offense under the Law shall be imposed upon the partner( president( director( mana3er( trustee( estate administrator( or officer who 5nowin3ly authoriBes( tolerates( or consents to the use of a vehicle( vessel( aircraft( equipment or other facility as an instrument in the importation( sale( tradin3( administration( dispensation( delivery( distribution( transportation( or manufacture of dan3erous dru3s( or chemical diversion( if such vehicle( aircraft( equipment or other instrument is owned by or under the control or supervision of the partnership( corporation( association or <uridical entity to which they are affiliated.
CRIMINAL LIABLITEMPLO-EES O) PUBLIC O))ICERS OR

". Any public officer or employee who (", misappropriates( (#, misapplies or (;, fails to account for confiscated( seiBed or surrendered dru3s( plant sources of dan3erous dru3s( controlled precursors and essential chemicals( instrumentsEparaphernalia andEor laboratory equipment includin3 the proceeds or properties obtained from the unlawful acts punished under the Law shall be penaliBed with life imprisonment to death and a fine ran3in3 fromP$&&(&&&.&& to P"&(&&&(&&&.&& and

164

with perpetual disqualification from any public office (Sec.#7,. #. Any 3overnment official or employee found 3uilty of the unlawful acts punished under the Law shall be imposed the ma1imum penalties provided for the offense and shall be absolutely perpetually disqualified from holdin3 any public office. (Sec. #+,.
CRIMINAL LIABILIT- O) ELECTI,E LOCAL OR NATIONAL O))ICIALS W(O BENE)ITS )ROM DRUG TRA))IC@ING Q

whether or not he 5now that it came from dru3s( but the one who 3ave must be convicted first by final <ud3ment.

". Any elective local or national official found to have (", benefited from the proceeds of the traffic5in3 of dan3erous dru3s as prescribed in the Law( or has (#, received any financial or material contributions or donations from natural or <uridical persons found 3uilty of traffic5in3 dan3erous dru3 as prescribed in the law( shall be removed from office and perpetually disqualified from holdin3 any elective or appointive positions in the 3overnment( its divisions( subdivisions( and intermediaries( includin3 3overnmentowned or controlled corporations (Ysec.#7,
CRIMINALLIABILIT- O) PRI,ATE INDI,IDUAL

#. Any person found 3uilty of Jplantin3K any dan3erous dru3 andEor controlled precursor and essential chemical( re3ardless of quantity and purity( shall be punished with death. (Sec. #%,. ;. Any person violatin3 any re3ulation issued by the Aan3erous Aru3 @oard shall be punished with imprisonment ran3in3 from ' months and " day to 6 years and a fine ran3in3 from P"&(&&&.&& to P$&(&&&.&& in addition to the administrative sanction which may be imposed by the @oard (Sec. ;#,
CRIMINAL LIABILIT- )OR PLANTING O) E,IDENCE

Any person who is found 3uilty of plantin3 nay dan3erous dru3 andE or controlled precursor and essential chemicals( re3ardless of quantity and purity( shall suffer the 165

penalty of death. (Sec. #%,. Previosly( only law enforcement a3ent maybe held liable (!.A. 7'$%,.
ACCESOR- PENALTIES

Any person convicted under this Law (!.A.%"'$ , shall be disqualified to e1ercise hisEher civil ri3hts such as( but not limited to( the ri3ht of parental authority or 3uardianship( either as to the person or property of any ward( the ri3hts to dispose of such property by any act or any conveyance inter vivos( and political ri3hts such as but not limited to( the ri3ht to vote and be voted for. Such ri3hts shall also be suspended durin3 the pendency of an appeal from such conviction (Sec.;$,
AGGRA,ATING CIRCUMSTANCES DRUG RELATED CASES

"., If the importation or brin3in3 into the Philippines of any dan3erous dru3s andEor controlled precursor and essential chemicals was done throu3h the use of diplomatic passport( diplomatic facilities or any other means involvin3 hisEher official status intended to facilitate the unlawful entry of the same #., 4he sale tradin3( administration( dispensation( delivery( distribution or transportation of any dan3erous dru3 andEor controlled precursor and essential chemical transpired within one hundred ("&&, meters from the school ;., 4he dru3 pusher use minors or mentally incapacitated individuals as runners( couriers and messen3er( or in any other capacity directly connected to the dan3erous dru3 andEor controlled precursor and essential chemical trade. 6., 4he victim of the offense is a minor or mentally incapacitated individual( or should a dan3erous dru3 andEor controlled precursor and essential chemicals involved Zin any offense be the pro1imate cause of death of a victim. $., In case the clandestine laboratory is underta5en or established under the followin3 circumstancesD

166

a., Any phase of the manufacturin3 process was conducted in the presence or with the help of minorEs b., Any phase of manufacturin3 process was established or underta5en within one hundred ("&&, meters of a residential( business( church or school premises. c., Any clandestine laboratory was secured or protected with booby traps. d., Any clandestine laboratory was concealed with le3itimate business operations. e., Any employment of a practitioner( chemical en3ineer( public official or forei3ner. '., In case the person uses a minor or a mentally incapacitated individual to deliver equipment( instrument( apparatus and other paraphernalia use for dan3erous dru3s. 7., Any person found possessin3 any dan3erous dru3 durin3 a party( or a social 3atherin3 or meetin3( or in the pro1imate company of at least two (#, person. +., Possession or havin3 under hisEher control any equipment( instrument( apparatus and other paraphernalia fit of intended for smo5in3( consumin3( administerin3( in<ectin3( in3estin3 or introducin3 any dan3erous dru3 into the body( durin3 parties( social 3atherin3s or meetin3s( or in the pro1imate company of at least two (#, person
W(AT ARE T(E PRI,ILEGE NOT A,AILABLE TO ,IOLATOR O) T(IS ACT4

".,Any person char3ed under any provision of this Act re3ardless of the imposable penalty shall not be allowed to avail of the provision on plea-bar3ainin3. #.,Any person convicted for dru3 traffic5in3 or pushin3 under this Act( re3ardless of the penalty imposed by the -ourt( cannot avail of the privile3e 3ranted by

167

the Probation Law of P.A. :o. %'+( as amended( e1cept minors who are first-time offenders. Note<- Pendency of appeal suspend the ri3ht of the accused - !i3hts to Self-incrimination do not refer to 3ivin3 blood.
IMMUNIT- )ROM PROSECUTION AND PUNIS(MENT

Immunity from Prosecution and punishment Q :otwithstandin3 the provision of Section "7( !ule ""% of the !evised !ules of -riminal Procedure and the provisions of !epublic Act :o. '%+" or the 8itness Protection( Security and @enefits Act of "%%"( any person who has violated Sections 7(""( "#( "6( "$ and "%( Article II of this Act( who voluntarily 3ives information about any violation of Section 6( $( '( +( "; and "'( Article II of this Act as well as any violation of the offenses mentioned if committed by dru3 syndicate( or of any information leadin3 to the whereabouts( identities and arrest of all or any of the members thereof; and who willin3ly testifies a3ainst such persons as described above( shall be e1empted from the prosecution or punishment for the offense with reference to which hisEher information of testimony in bar of such prosecution; Provided( that the followin3 condition concurD ".,4he information and testimony are necessary for the conviction of the person described above; #.,Such information are not yet in the possession of the State; ;.,Such information and testimony can be corroborated on its material points; 6.,4he informant or witness has not been previously convicted of a crime involvin3 moral turpitude( e1cept when there is no other direct evidence available for the State other than the information and

168

testimony of said informant or witness; and $.,4he informant or witness shall strictly and faithfully comply without delay( any condition or underta5in3( reduced into writin3( lawfully imposed by the State as further consideration for the 3rant of immunity from prosecution and punishment. Provided) furt-er( 4hat this immunity may be en<oyed by such informant or witness who does not appear to be most 3uilty for the offense with reference to which hisEher information or testimony were 3iven. Provide) finally( that there is no direct evidence available for the State e1cept for the information and testimony of the said informant or witness.
TERMINATION O) T(E GRANT O) IMMUNIT-

4he immunity above-3ranted shall not attach should it turn out subsequently that the information andEor testimony is false( malicious( or made only for the purpose of harassin3( molestin3 or in any way pre<udicin3 the persons described in Section ;; a3ainst whom such information or testimony is directed. In such case( the informant or witness shall be sub<ect to prosecution and the en<oyment of all ri3hts and benefits previously accorded him under the Law or any other law( decree or order shall be deemed terminated. In case the informant or witness under the Law fails or refuse to testify without <ust cause( and when lawfully obli3es to do so( or should heEshe violate any condition accompanyin3 such immunity as provided above( hisEher immunity shall be removed and heEshe shall be li5ewise be sub<ected to contempt andEor criminal prosecution( as the case may be and the en<oyment of all ri3hts and benefits previously accorded him under the Law or in any other law( decree or order shall be deemed terminated. (Sec ;6.,

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In case the informant or witness referred to under the Law falls under the applicability of Section ;6( such individual cannot avail of the provision under Article NIII of the Law.
PERSON8S W(O ARE SUBJECT TO T(E MANDATOR- DRUG TESTING

a.,Applicants for driver*s license Q no driver*s license shall be issued or renewed to nay person unless heEshe presents a certification that heEshe has under3one a mandatory dru3 test and indicatin3 thereon that heEshe is free from the use of dan3erous dru3s. b.,Applicants for firearm*s license and permit to carry firearms outside of residence. Q All applicants for firearms license and permit to carry firearms outside of residence shall under3o a mandatory dru3 test to ensure that they are free from the use of dan3erous dru3s; Provided) 4hat all persons who by the nature of their profession carry firearms shall under3o dru3 testin3; c., >fficers and employees of public and private offices. Q >fficers and employees of public and private offices( whether domestic or overseas( shall be sub<ected to under3o a random dru3 test as contained in the company*s wor5 unless and re3ulation( which shall be borne by the employer( for purposes of reducin3 the ris5 in the wor5place. Any officer or employee found positive for the sue of dan3erous dru3 shall be dealt with administratively which shall be a 3round for suspension or termination( sub<ect to the provision Article #+# of the Labor -ode and pertinent provisions of the -ivil Service Law. d.,>fficers and members of the military( police and other law enforcement a3encies. Q >fficers and members of the military( police and other law enforcement a3encies shall under3o an annual mandatory dru3 test.

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e.,All persons char3ed before the prosecutor*s office with a criminal offense havin3 an imposable penalty of imprisonment of not less than si1 (', years and one (", day shall have under3o a mandatory dru3 test. f., All candidates for public office whether appointed or elected both in the national or local 3overnment shall under3o a mandatory dru3 test.
CON)IDENTIALIT- O) RECORDS UNDER T(E COMPULSAR- SUBMISSION PROGRAM

4he records of a dru3 dependent who was rehabilitated and dischar3ed from the -enter under the compulsory submission pro3ram( or who was char3ed for violation of Section "$ of this Act( shall be covered by Section '& of this Act (!.A. %"'$,. ?owever( the record of a dru3 dependant who was not rehabilitated( or who escaped but did not surrender himselfEherself within the prescribed period( shall be forwarded to the court and their use shall be determined by the court( ta5in3 into consideration public interest and the welfare of the dru3 dependant (9ec. 3 %
DISC(ARGED A)TER COMPLIANCE WIT( CONDITIONS O) SUSPENDED SENTENCE O) A )IRST.TIME MINOR O))ENDER

If the accused first time minor offender under suspended sentence complies with the applicable rules and re3ulation of the @oard( includin3 confinement in a -enter( the court( upon a favorable recommendation of the @oard for a final dischar3e of the accused( shall dischar3e the accused and dismiss all proceedin3s. 0pon the dismissal of the proceedin3s a3ainst the accused( the court shall enter an order to e1pun3e all official records( other than the confidential record to be retained by the A>) relatin3 to the case. Such an order( which shall be 5ept confidential( shall restore the accused to hisEher status prior to the case. ?eEshe shall not be held thereafter to be 3uilty of per<ury or of concealment or misrepresentation by reason of hisEher failure to ac5nowled3e the case or recite any fact related therto in response to any inquiry madeof him for any purpose (9ec. 38%

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T(E DANGEROUS DRUGS BOARD AND P(ILIPPINE DRUG EN)ORCEMENT AGENC%@e DanCe4o5s D45C Boa4d A. )un" ion

4he Aan3erous Aru3 @oard shall be the policyma5in3 and strate3y formulatin3 body in the plannin3 and formulation of policies and pro3rams on dru3 prevention and control. (Sec. 77, B. Co?>o=i ion 0nder !.A. '6#6 as amended( the Aan3erous Aru3 board was composed of seven ex officio members as followsD (a, 4he =inister of ?ealth or his representative; (b, the =inister of )ustice or his representative; (c, 4he =inister of :ational Aefense or his representative; (d, 4he =inister of Gducation and -ulture or his representative; (e, 4he =inister of 9inance or his representative; (f, 4he =inister of Social Service and Aevelopment or his representative; and (3, 4he =inister of Local overnment or his representative (Sec. ;$ Art. +( !.A. '6#6, 4he =inister of ?ealth shall be the -hairman of the @oard and the Airector of the :ational @ureau of Investi3ation shall be the permanent consultant of the @oard. 0nder Section 7+ of !.A. %"'$( the membership of the Aan3erous Aru3s @oard was e1panded to seventeen ("7, members( three (;, of which are permanent members( twelve ("#, shall be in ex officio capacity( and the remainin3 two (#, shall be re3ular members. 4he three (;, permanent members( who shall possess At least seven-year trainin3 ande1perience in the field of dan3erous dru3s andin any of the followin3 fieldsD in law( medicine( criminolo3y( psycholo3y or social wor5( shall be appointed by the President of the Philippines. 4he President shall desi3nate a -hairman( who shall have the ran5 of a secretary from amon3 the

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three (;, permanent members who shall serve for si1 (', years. >f the two (#, other members( who shall have the ran5 of undersecretary( one (", shall serve for four (6, and the other for two (#, years. 4hereafter( the person appointed to succeed such members shall hold office for a term of si1 (', years and until their successors shall have been duly appointed and qualified. 4he other twelve ("#, members who shall be ex officio members of the @oard are the followin3D (", Secretary of the Aepartment of )ustice or hisEher representative; (#, Secretary of the Aepartment of ?ealth or hisEher representative; (;, Secretary of the Aepartment of :ational Aefense or hisEher representative; (6, Secretary of the Aepartment of 9inance or hisEher representative; ($, Secretary of the Aepartment of Labor and Gmployment or hisEher representative; (', Secretary of the Aepartment of Interior and Local overnment or hisEher representative; (7, Secretary of the Aepartment of Social 8elfare and Aevelopment or hisEher representative; (+, Secretary of the Aepartment of 9orei3n Affairs or hisEher representative; (%, Secretary of the Aepartment of Gducation or hisEher representative; ("&, -hairman of the -ommission of ?i3her Gducation or hisEher representative; ("", -hairman of the :ational Fouth -ommission; and ("#, Airector eneral of the Philippine Aru3 Gnforcement A3ency. -abinet secretaries who are members of the @oard may desi3nate their duly authoriBed and permanent representatives whose ran5 shall in no case be lower than undersecretary. 4he two (#, re3ular members shall be as followsD (a, 4he President of the Inte3rated @ar of the Philippines; and (b, 4he chairman or president of a non- chairman or president of a non- chairman or president of a non3overnment or3aniBation involved in dan3erous dru3 campai3n to be appointed by the President of the Philippines.

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%@e P@0>0??0ne (PD A)

D45C

nEo4cement

ACency

A. )un" ion= -arry out the provision of the Aan3erous Aru3 act of #&&#. 4he A3ency shall served as the implementin3 arm of the Aan3erous Aru3 @oard( and shall be responsible for the efficient and effective law enforcement of all provisions of any dan3erous dru3 andEor controlled precursor and essential chemicals as provided for in the Law. (Sec. +#,. 4he e1istin3 Secretariat of the :ational Aru3 Law Gnforcement and Prevention -oordinatin3 -enter as created by G1ecutive >rder :o. '" is hereby modified and absorbed by the PAGA (Sec. +;( !.A. %"'$, B. Po:er= an< Du ie=

a., Implement or cause the efficient and effective implementation of the national dru3 control strate3y formulated by the @oard thereby carryin3 out a national dru3 campai3n pro3ram which shall include dru3 law enforcement( control and prevention campai3n with the assistance of concerned 3overnment a3encies; b., 0nderta5e the enforcement of the provision of article II of this Act relative to the unlawful acts and penalties involvin3 any dan3erous dru3 andEor controlled precursor and essential chemical and investi3ate all violators and other matters involved in the commission of any crime relative to the use( abuse or traffic5in3 of any dan3erous dru3 andEor controlled precursor and essential chemicals as provided for in this Act and the provisions of Presidential Aecree :o. "'"%; c., Administer oath( issue subpoena and subpoena duces tecum relative to the conduct of investi3ation involvin3 violation of this Act; d.,Arrest and apprehend as well as search all violators and seiBe or confiscate( the effects or proceeds of the crime as provided by law and ta5e custody thereof( for this purpose the prosecutors and

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enforcement a3ents are authoriBed to possess firearms( in accordance with the e1istin3 laws; e.,4a5e char3e and have custody of all dan3erous dru3s andEor controlled precursors and essential chemicals seiBed( confiscated or surrendered to any national( provincial or local law enforcement a3ency; if no lon3er needed for purposes of evidence in court. f., Gstablish forensic laboratories in each P:P office in every province and city in order to facilitate action on seiBed or confiscated dru3s; thereby hastenin3 its destruction without delay; 3.,!ecommend to the A>) the forfeiture of properties and other assets of persons andEor corporations found to be violatin3 the provisions of this Act and in accordance with the pertinent provisions of the Anti-=oney Launderin3 Act of #&&#. h.,Prepare for prosecution or cause the filin3 of appropriate criminal and civil cases for violation of laws on dan3erous dru3s( controlled precursors and essential chemicals( and other similar controlled substance( and assist( support and coordinate with other 3overnment a3encies for the proper and effective prosecution of the same; i., =onitor and if warranted by circumstances( in coordination with the Philippine Postal >ffice and the @ureau of -ustoms( inspect all air car3o pac5a3es( parcels and mails in the central post office( which appear from the pac5a3es and address itself to be a possible importation of dan3erous dru3s andEor controlled precursors and essential chemicals( throu3h on-line or cyber shops via the internet or cyberspace; <., -onduct eradication pro3rams to destroy wild or ille3al 3rowth of plants from which dan3erous dru3s may be e1tracted; 5.,Initiate and underta5e the formation of a nationwide or3aniBation which shall coordinate and 175

supervise all activities a3ainst dru3 abuse in every province( city( municipality and baran3ay with active and direct participation of all such local 3overnment units and non-3overnmental or3aniBations( includin3 the citiBenry( sub<ect to the provisions of previously formulated pro3rams of action a3ainst dan3erous dru3s; l., Gstablish and maintain a national dru3 intelli3ence system in cooperation with law enforcement a3encies( other 3overnment a3enciesEoffices and local 3overnment units that will assist in its apprehension of bi3 time dru3 lords; m., Gstablished and maintain close coordination( cooperation and lin5a3es with international dru3 control and administration a3encies and or3aniBation and implement the applicable provisions of international conventions and a3reement related to dan3erous dru3s to which the Philippines is a si3natory; n.,-reate and maintain an efficient special enforcement unit to conduct an investi3ation( file char3es and transmit evidence to the proper court( wherein members of the said unit shall possess suitable and adequate firearms for their protection in connection with the performance of their duties; Provided) 4hat no previous special permit for such possession shall be required; o.,!equire all 3overnment and private hospitals( clinics( doctors( dentists and other practitioners to submit a report to it( in coordination with the @oard( about all dan3erous dru3s andEor controlled precursors and essential chemicals which they have attended to for data and information purposes; p.,-oordinate with the @oard for the facilitation of the issuance of necessary 3uidelines( rules and re3ulations for the proper implementation of this Act; q.,Initiate and underta5e a national campai3n for dru3 prevention and dru3 control pro3rams( where it 176

may enlist the assistance of any department( bureau( office( a3ency( or instrumentality of the 3overnment( includin3 3overnment-owned andEor controlled corporations( in the anti-ille3al dru3s drive( which may include the use of their respective personnel( facilities( and resources for a more resolute detection and investi3ation of dru3-related crimes and prosecution of the dru3 traffic5ers; and r., Submit an annual and periodic report to the @oard as may be required form time to time( and perform such other functions as may be authoriBed or required under e1istin3 laws and as directed by the President himselfEherself or as recommended by the con3ressional committees concerned. Note< 4here are however certain power and duties of the PAGA enumerated under Section +6 of !.A. %"'$ which seems to overlap with the functions of prosecutors such as (", the preparation for prosecution or the causin3 of the filin3 of appropriate criminal cases for violation of the Law; and (#, filin3 of char3es and transmittal of evidence to the proper court and which have to be clarified in the Implementin3 !ules and !e3ulation that may be issued by the AA@ and the PAGA later.
JURISDICTION O,ER DRUG RELATED CASES

4he Supreme -ourt shall desi3nate special court from amon3 the e1istin3 !e3ional 4rial -ourt in each <udicial re3ion to e1clusively try and hear cases involvin3 violations of this Act. 4he number of courts desi3nated in each <udicial re3ion shall be based in their respective <urisdiction. 4he A>) shall desi3nate special prosecutor to e1clusively handle cases involvin3 violations of this Act.
PRELIMINAR- IN,ESTIGATION O) DANGEROUS DRUG CASES

177

4he preliminary investi3ation of cases filed under this Act shall be terminated within the period of thirty (;&, days from the date of their filin3 8hen the preliminary investi3ation is conducted by a public prosecutor and probable cause is established( the correspondin3 information shall be filed in court within twenty-four (#6, hours from the termination of the investi3ation. If the preliminary investi3ation is conducted by a <ud3e and a probable cause is found to e1ist( the correspondin3 information shall be filed by the proper prosecutor within forty-ei3ht (6+, hours from the date of receipt of the records of the case. (9ec. $5% 4he Aepartment of )ustice shall desi3nate special prosecutors to e1clusively handle cases involvin3 violations of the Aan3erous Aru3 Act of #&&# (Sec. %&, :otwithstandin3 the provision of any law to the contrary( a positive findin3 for the use of dan3erous dru3s shall be a qualifyin3 a33ravatin3 circumstance in the commission of a crime by an offender( and the application of the penalty provided for in the !evised Penal -ode shall be applicable (Sec. #$, -onfiscation and 9orfeiture of the Proceeds or Instruments of the 0nlawful Act( includin3 the Properties or Proceeds Aerived from the Ille3al 4raffic5in3 of Aan3erous Aru3s andEor Precursors and Gssential -hemicals Gvery penalty imposed for the unlawful importation( sale( tradin3( administration( dispensation( delivery( distribution( transportation or manufacture of any dan3erous dru3 andEor controlled precursor and essential chemical( the cultivation or culture of plants which are sources of dan3erous dru3s( and the possession of any equipment( instrument( apparatus and other paraphernalia for dan3erous dru3s includin3 other laboratory equipment( shall carry with it the confiscation and forfeiture( in favor of the 3overnment( of all the proceeds and properties derived from unlawful act( includin3( but not limited to( money and other assets obtained thereby( and the instruments or tools with which the particular unlawful act was committed( unless they are the property of a third 178

person not liable for the unlawful act( but those which are not of lawful commerce shall be ordered destroyed without delay pursuant to the provisions of Section #" of this Act. After conviction in the !e3ional 4rial -ourt in the appropriate criminal case filed( the -ourt shall immediately schedule a hearin3 for the confiscation and forfeiture of all the proceeds of the offense and all the assets and properties of the accused either owned or held by him or in the name of some other persons if the same shall be found to be manifestly out of proportion to hisEher lawful income; Provided) -o=ever) 4hat if the forfeited property is a vehicle( the same shall be auctioned off not later than five ($, days upon order of confiscation or forfeiture. Aurin3 the pendency of the case in the !e3ional 4rial -ourt( no property( or income derived thereform( which may be confiscated and forfeited( shall be disposed( alienated or transferred and the same shall be in custodio le,is and no bond shall be admitted for the release of the same. 4he proceeds of any sale or disposition of any property confiscated under this section( forfeiture( custody and maintenance of the property pendin3 disposition( as well as the e1pense for publication and court costs. 4he proceeds in e1cess of the above e1penses shall accrue to the @oard to be used in its campai3n a3ainst ille3al dru3s.
CUSTOD- AND DISPOSITION O) CON)ISCATED! SEI1ED AND8OR SURRENDERED DANGEROUS DRUGS! ETC.

4he PDEA shall ta5e char3e and have custody of all dan3erous dru3s( plant sources of dan3erous dru3s( controlled precursors and essential chemicals( as well as instrumentsEparaphernalia andEor laboratory equipment that was confiscated( seiBed andEor surrendered( for proper disposition in the followin3 mannerD ". 4he apprehendin3 team havin3 initial custody and control of the dru3s shall( immediately after seiBure and confiscation( physically inventory

179

and photo3raph the same in the presence of the accused or the personEs from whom such items were confiscated andEor seiBed( or hisEher representative or counsel( a representative from the media and the Aepartment of )ustice (A>), and any elected public official who shall be required to si3n the copies of the inventory and be 3iven a copy thereof; #. 8ithin twenty-four (#6, hours upon confiscationEseiBure of dan3erous dru3s( plant sources of dan3erous dru3s( controlled precursors and essential chemicals( as well as instrumentsEparaphernalia andEor laboratory equipment( the same shall be submitted to the PAGA 9orensic Laboratory for a qualitative e1amination; A certification of the forensic laboratory e1amination results( which shall be under oath by the forensic laboratory e1aminer( shall be issued within twenty-four (#6, hours after the receipt of the sub<ect itemsEsD Provided( that when the volume of dan3erous dru3s( and controlled precursors and essential chemicals does not allow the completion of testin3 within the time frame( a partial laboratory e1amination report shall be provisionally by the forensic laboratoryD Provided) -o=ever) that a final certification on the same within the ne1t twentyfour (#6, hours; After the filin3 of the criminal case( the -ourt shall within seventy-two (7#, hours( conduct an ocular inspection of the confiscated( seiBed andEor surrendered dan3erous dru3s( plant sources of dan3erous dru3s( and controlled precursor and essential chemicals( includin3 the instrumentsEparaphernalia andEor laboratory equipment( and throu3h the PAGA shall within twenty-four (#6, hours thereafter proceed with the destruction or burnin3 of the same( in the presence of the accused or the personEs from which such items were confiscated andEor seiBed( or hisEher representative or counsel( a 180

;.

6.

representative from the media and the A>)( civil society 3roup and any elected public official. 4he @oard shall draw up the 3uidelines on the manner of proper disposition and destruction of such itemEs which shall be borne by the offender; Provided( 4hat those itemEs of lawful commerce( as determined by the @oard( shall be donated( used or recycled for le3itimate purposes; Provided( furt-er) 4hat a representative sample( duly wei3hed and recorded( is retained; $. 4he @oard shall then issue a sworn statement as to the fact of destruction or burnin3 of the sub<ect itemEs to3ether with the representative sampleEs shall be 5ept to a minimum quantity as determined by the @oard; 4he alle3ed offender or hisEher representative or counsel shall be allowed to personally observe all of the above proceedin3s and hisEher presence shall not constitute an admission of 3uilt. In case the said offender or accused refuses or fails to appoint a representative after due notice in writin3 to the accused or hisEher counsel within seventy-two (7#, hours before the actual or destruction of the evidence in question( the Secretary of )ustice shall appoint a member of the public attorney*s office to represent the former; After the promul3ation of <ud3ment in the criminal case wherein the representative sampleEs was presented as evidence in court( the trial prosecutor shall inform the @oard of the final termination of the case and in turn( shall request the court for leave to turn over the said representative sampleEs to the PAGA for proper disposition and destruction within twenty-foru (#6, hours from receipt of the same; and 4ransitory ProvisionD a., 8ithin twenty-four hours from the effectivity of this Act (!.A. %"'$,( dan3erous dru3s defined herein which are presently in possession of law enforcement a3encies shall( with leave of court( be burned or 181

'.

7.

+.

destroyed( in the presence of representative of the -ourt( A>)( Aepartment of ?ealth (A>?, and the accused andEor hisEher counsel( and b., Pendin3 the or3aniBation of the PAGA( the custody( disposition( and burnin3 of seiBed or surrendered dan3erous dru3s provided under this Section shall be implemented by the A>? (Sec. #"( Art. #( !.A. %"'$,
SUSPENSION O) SENTENCE O) )IRST.TIME MINOR O))ENDER

An accused who is over fifteen ("$, years of a3e at the time of the commission of the offense mentioned in Section "" of !.A. %"'$ but not more that ei3hteen ("+, years of a3e at the time when the <ud3ment should have been promul3ated after havin3 been found 3uilty of said offense( may be 3iven the benefits of a suspended sentence( sub<ect to the followin3 conditionsD a.,?eEShe has not been previously convicted of violatin3 any provision of this Act( or of the Aan3erous Aru3s Act of "%7#( as amended; or of the !evised Penal -ode; or any special penal laws; b.,?eEShe has not been previously committed to a -enter or to the care of a A>?-accredited physician; and c., 4he @oard favorably recommends that hisEher sentence be suspended.
PRI,ILEGE O) SUSPENDED SENTENCE CAN BE A,AIL ONLONCE B- A )IRST.TIME MINOR O))ENDER

4he privile3e of suspended sentence shall be availed of only once by accused dru3 dependent who is a first-time offender over fifteen ("$, years of a3e at the time of the commission of the violation of Section "$ of this Act but not more than ei3hteen ("+, years of a3e at the time when <ud3ment should have been promul3ated. (9ec. 34%

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PROMULAGATION O) SENTENCE )OR )IRST.TIME O))ENDER

If the accused first-time minor offender violates any of the conditions of hisEher suspended sentence( the applicable rules and re3ulations of the @oard e1ercisin3 supervision and rehabilitative surveillance over him( includin3 the rules and re3ulations of the -enter should confinement be required( the court shall pronounce <ud3ment of conviction and heEshe shall serve sentence as any other convicted person. (9ec. 3$%
PROBATION OR COMMUNIT- SER,ICE )OR A )IRST.TIME MINOR O))ENDER IN LIEU O) IMPRISONMENT

0pon promul3ation of the sentence( the court may( in its discretion( place the accused under probation( even if the sentence provided under this Act is hi3her than that provided under e1istin3 law on probation( or impose community service in lieu of imprisonment. In case of probation( the supervision and rehabilitative surveillance shall be underta5en by the @oard throu3h the A>? in coordination with the @oard of Pardons and Parole and the Probation Administration. 0pon compliance with the conditions of the probation( the @oard shall submit a written report to the court recommendin3 termination of probation and a final dischar3e of the probationer( whereupon the court shall issue such an order. 4he community service shall be complied with under conditions( time and place as may be determined by the court in its discretion and upon the recommendation of the @oard and shall apply only to violators of Section "$ of this Act. 4he completion of the community service shall be under the supervision and rehabilitative surveillance of the @oard durin3 the period required by the court. 4hereafter( the @oard shall render a report on the manner of compliance of said community service. 4he court in its discretion may require e1tension of the community service or order a final dischar3e. If the sentence promul3ated by the court require imprisonment( the period spent in the -enter by the accused shall be deducted from the sentence to be served. ( 9ec. 85%

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W(AT ARE T(E LIABILIT- AND RESPONSIBILIT- O) A MEMBER O) LAW EN)ORCEMENT AGENCIES AND OT(ER GO,ERNMENT O))ICIALS IN TESTI)-ING AS PROSECUTION WITNESSES IN DANGEROUS DRUG CASES4

Any member of law enforcement a3encies or any other 3overnment official and employee who( after due notice( fails or refuse intentionally or ne3li3ently( to appear as a witness for the prosecution in any proceedin3s( involvin3 violation of this Act( without any valid reason shall be punished with imprisonment of not less than twelve ("#, years and one (", day to twenty (#&, years and a fine of not less than 9ive hundred thousand pesos (P$&&(&&&.&&,( in addition to the administrative liability heEshe may be meted out by hisEher immediate superior andEor appropriate body. 4he immediate superior of the member of the law enforcement a3ency or any other 3overnment employee mentioned in the precedin3 para3raph shall be penaliBed with imprisonment of not less than two (#, months and one (", day but not more than si1 (', years and a fine of not less than ten thousand (P"&(&&&.&&, but not more than 9ifty thousand (P$&(&&&.&&, and in addition( perpetual absolute disqualification from public office if despite due notice to them and to the witness concerned the former does not e1ert reasonable effort to present the latter to the court 4he member of the law enforcement a3ency or any other 3overnment employee mentioned in the proceedin3 para3raphs shall not be transferred or re-assi3ned to any other 3overnment office located in another territorial <urisdiction durin3 the pendency of the case in court. ?owever( the concerned member of the law enforcement a3ency or 3overnment employee may be transferred or reassi3ned for compellin3 reasonD Provided( that hisEher immediate superior shall notify the court where the case is pendin3 of the order to transfer or re-assi3n( within twentyfour (#6, hours from its approvalD Provided furt-er) that hisEher immediate superior shall be penaliBed with imprisonment of not less than two (#, months and one (",day but not more than si1 (', years and a fine of not less than two (#, months and one (", day but not more than si1 (', years and a fine of not less than 4en thousand (P"&(&&&.&&, but not more than 9ifty thousand pesos (P$&(&&&.&&, and in addition( perpetual absolute

184

disqualification from public office( should heEshe fails to notify the court of such order to transfer or re-assi3n.
DELA- AND BUNGLING IN T(E PROSECUTION O) DRUG CASES

Any 3overnment officer employee tas5ed with the prosecution of dru3-related cases under this Act( who throu3h patent la1ity( ine1cusable ne3lect( unreasonable delay or deliberately causes the unsuccessful prosecution andEor dismissal of the said dru3 cases( shall suffer the penalty of imprisonment ran3in3 from twelve ("#, years and one (", day to twenty (#&, years without pre<udice to hisEher prosecution under the pertinent provision of the !evised Penal -ode.
RECORDS TO BE @EPT B- T(E DEPARTMENT O) JUSTICE

4he A>) shall 5eep a confidential record of the proceedin3s on suspension of sentence and shall not be used for any purpose other than to determine whether or not a person accused under this Act is a first-time offender. (9ec. 8"%
LIABILIT- O) A PERSON W(O ,IUOLATES T(E CON)IDENTIALIT- O) RECORDS

4he Penalty of imprisonment ran3in3 from si1 (', months and one (", day to si1 (', years and a fine ran3in3 from >ne thousand pesos (P"(&&&.&&, to Si1 thousand pesos (P'(&&&.&&,( shall be imposed upon any person who( havin3 official custody of or access to the confidential records of any dru3 dependent under voluntary submission pro3rams( or any one who( havin3 3ained possession of said records( whether lawfully or not( reveals their content to any person other than those char3ed with the prosecution of the offense under this Act and its implementation. 4he ma1imum penalty shall be imposed( in addition to the absolute perpetual disqualification from any public office( when the offender is a 3overnment official or employee. Should the records be used for unlawful purposes( such as blac5mail of the dru3 defendant of the members of hisEher family( the penalty imposed for the crime

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of violation of confidentiality shall be in addition to whatever crime heEshe convicted of. (Sec. 7#,
LIABILIT- O) A PARENTS! SPOUSE OR GUARDIAN W(O RE)USE TO COOPERATE WIT( T(E BOARD OR AN- CONCERNED AGENC-

Any parent( spouse or 3uardian who( without valid reason parent( spouse or 3uardian who( without valid reason( refuses to cooperate with the @oard or any concerned a3ency in the treatment and rehabilitation of a dru3 defendant who is a minor( or in any manner( prevents or delay the after-care( follow-up or other pro3rams for the welfare of the accused dru3 defendant( whether under voluntary submission pro3ram or compulsory submission pro3ram( may be cited in contempt by the court.
COST.S(ARING IN T(E TREATMENT AND RE(ABILITATION O) A DRUG DE)ENDENT

4he parents( spouse( 3uardian or any relative within the fourth de3ree of consan3uinity of any person who is confined under the voluntary submission pro3ram or compulsory submission pro3ram shall be char3ed a certain percenta3e of the cost of hisEher treatment and rehabilitation( the 3uidelines of which shall be formulated by the AS8A ta5in3 into consideration the economic status of the family of the person confined. 4he 3uidelines therein formulated shall be implemented by a social wor5er of the local 3overnment unit. (Sec. 76,
LIMITED APPLICABILIT- O) T(E RE,ISED PENAL CODE

:otwithstandin3 any law( rule or re3ulation to the contrary( the provisions of the !evised Penal -ode (Act. ;+"6, as amended( shall not apply to the provision of this Act( e1cept in the case of minor offenders. 8here the offender is a minor( the penalty for acts punishable by life imprisonment to death provided therein shall be reclusion perpetua to deat-. (9ec. $4%
E*CEPTION TO NECESSITO) A SEARC( WARRANT

4here is no doubt that the warrantless search incidental to a lawful arrest authoriBes the arrestin3 officer to ma5e a

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search upon the person arrested. An officer ma5in3 an arrest may ta5e from the person arrested any money or property found upon his person which was used in the commission of the crime or was in fruit of the crime or which mi3ht furnish the prisoner with the means of committin3 violence or of escapin3( which may be used as evidence in the trial of the case. (People v. 'usaI GR $3"88) "!78!$6%
LI@E ALIBI! )RAME UP IS EASTO )ABRICATE! BUT DI))ICULT TO PRO,E

9rame-up( li5e alibi( is a defense that has been viewed by courts with disfavor for it can <ust as easily be connected and is a common and standard line of defense in most prosecution arisin3 from violations of the Aan3erous Aru3s Act. In order for that defense to prosper( the evidence adduced must be clear and convincin3. (People v. iran3; ! #7%6%( #E"E%$,
BU-.BUST OPERATION

Is a form of entrapment employed by peace officers as an effective way of apprehendin3 a criminal in the act of the commission of the offense. Gntrapment has received <udicial sanction as lon3 as it is carried out with due re3ard to constitutional and le3al safe3uards. (People v. @asil3o; ! "&7;#7( +E$E%6,
BU- BUST OPERATION: PDEA NEED NOT BE IN,OL,ED T(EREIN Appellant would ne1t ar3ue that the evidence a3ainst him was

obtained in violation of Sections #" and +' of !epublic Act :o. %"'$ because the buy-bust operation was made without any involvement of the Philippine Aru3 Gnforcement A3ency (PAGA,. Prescindin3 therefrom( he concludes that the prosecution*s evidence( both testimonial and documentary( was inadmissible havin3 been procured in violation of his constitutional ri3ht a3ainst ille3al arrest. 4he ar3ument is specious.

Section +' of !epublic Act :o. %"'$ readsD

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SG-. +'. ?ransfer) Absorption) and *nte,ration of All :peratin, @nits on *lle,al &ru,s into t-e P&+A and ?ransitory Provisions. Q 4he :arcotics roup of the P:P( the :arcotics Aivision of the :@I and the -ustoms :arcotics Interdiction 0nit are hereby abolished; however they shall continue with the performance of their tas5 as detail service with the PAGA( sub<ect to screenin3( until such time that the or3aniBational structure of the A3ency is fully operational and the number of 3raduates of the PAGA Academy is sufficient to do the tas5 themselvesD Provided( 4hat such personnel who are affected shall have the option of either bein3 inte3rated into the PAGA or remain with their ori3inal mother a3encies and shall( thereafter( be immediately reassi3ned to other units therein by the head of such a3encies. Such personnel who are transferred( absorbed and inte3rated in the PAGA shall be e1tended appointments to positions similar in ran5( salary( and other emoluments and privile3es 3ranted to their respective positions in their ori3inal mother a3encies. 4he transfer( absorption and inte3ration of the different offices and units provided for in this Section shall ta5e effect within ei3hteen ("+, months from the effectivity of this ActD Provided( 4hat personnel absorbed and on detail service shall be 3iven until five ($, years to finally decide to <oin the PAGA. :othin3 in this Act shall mean a diminution of the investi3ative powers of the :@I and the P:P on all other crimes as provided for in their respective or3anic lawsD Provided) -o=ever( 4hat when the investi3ation bein3 conducted by the :@I( P:P or any ad -oc anti-dru3 tas5 force is found to be a violation of any of the provisions of this Act( the PAGA shall be the lead a3ency. 4he :@I( P:P or any of the tas5 force shall immediately transfer the same to the PAGAD Provided) furt-er) 4hat the :@I( P:P and the @ureau of -ustoms shall maintain close coordination with the PAGA on all dru3 related matters.

-ursory read( the fore3oin3 provision is silent as to the consequences of failure on the part of the law enforcers to transfer dru3-related cases to the PAGA( in the same way that the Implementin3 !ules and !e3ulations (I!!, of !epublic Act :o. %"'$ is also silent on the matter. @ut by no stretch of ima3ination could

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this silence be interpreted as a le3islative intent to ma5e an arrest without the participation of PAGA ille3al nor evidence obtained pursuant to such an arrest inadmissible.
(People vs. 9ta. 'aria) G.R. .o. "8"5"$) February 76) 7558%

POSEUR.BU-ER! GENERALLNEED NOT TESTI)-

4he testimony of the poseur-buyer or of the confidential informant is no lon3er material considerin3 that accusedappellant*s dru3 pushin3 was positively attested to. =oreover( informants are 3enerally not presumed in court because of the need to hide their identity and preserve their invaluable service to the police. (People v. iran3; ! %7%6%( #E"E%$,
E))ECT O) LIMITATION UNDER SECTION $5! ART. ,II O) T(E CONSTITUTION ON GRANT O) PARDON

4he /conviction by final <ud3ment/ limitation under Section "%( Article NII of the present -onstitution prohibits the 3rant of pardon( whether full or conditional( to an accused durin3 the pendency of his appeal from his conviction by the trial court. Any application therefor( if one is made( should not be acted upon or the process toward its 3rant should not be be3un unless the appeal is withdrawn. Accordin3ly( the a3encies or instrumentalities of the overnment concerned must require proof from the accused that he has not appealed from his conviction or that he has withdrawn his appeal Such proof may be in the form of a certification issued by the trial court or the appellate court( as the case may be 4he acceptance of the pardon shall not operate as an abandonment or waiver of the appeal( and the release of an accused by virtue of a pardon( commutation of sentence( or parole before the withdrawal of an appeal shall render those responsible therefor administratively liable Accordin3ly( those in custody of the accused must not solely rely on the pardon as a basis for the release of the accused from confinement. (People v. =aquilan,

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RULE AS TO W(O S(OULD BE CRIMINALL- C(ARGED

4he settled rule is that the determination of who should be criminally char3ed in court is essentially an e1ecutive function( not a <udicial one. As the officer authoriBed to direct and control the prosecution of all criminal actions( the prosecutor is tas5ed to ascertain whether there is sufficient 3round to en3ender a well-founded belief that an offense has been committed and that the accused is probably 3uilty thereof. (People v. Gsparas; ! "#&&;6( )uly "&( "%%+,
W(EN T(ERE IS A WAI,ER O) WARRANTLESS ARREST

4he appellants are now precluded from assailin3 the warrantless search and seiBure when they voluntarily submitted to it as shown by their actuation durin3 the search and seiBure. 4he appellants never protested when SP>; )esus 9aller( after identifyin3 himself as a police officer( opened the tin can loaded in the appellants2 vehicle and found ei3ht (+, bundles. And when 9aller opened one of the bundles( it smelled of mari<uana. 4he :@I later confirmed the ei3ht (+, bundles to be positive for mari<uana. A3ain( the appellants did not raise any protest when they( to3ether with their car3o of dru3s and their vehicle( were brou3ht to the police station for investi3ation and subsequent prosecution. 8e have ruled in a lon3 line of cases thatD /8hen one voluntarily submits to a search or consents to have it made on his person or premises( he is precluded from later complainin3 thereof (-ooley( -onstitutional Limitations( +th ed.( vol. I( pa3e ';",. 4he ri3ht to be secure from unreasonable search may( li5e every ri3ht( be waived and such waiver may be made either e1pressly or impliedly./ 4he appellants effectively waived their constitutional ri3ht a3ainst the search and seiBure in question by their voluntary submission to the <urisdiction of the trial court( when they entered a plea of not 3uilty upon arrai3nment and by participatin3 in the trial. (People v. -orrea; ! ""%#6'( )an. ;&( *%+, 190

W(EN USE O) MOTOR ,E(ICLE IN DRUG CASES OR AN- OT(ER CASE IS NOT AGGRA,ATING Simply stated( the motor vehicle which was used to transport prohibited dru3s was not purposely sou3ht to facilitate the commission of the crime since such act of transportin3 constitutes the crime itself( punishable under Section 6( Article II of !epublic Act :o. '6#$( as amended. 4hat a motor vehicle was used in committin3 the crime is merely incidental to the act of transportin3 prohibited dru3s. 4he use of a motor vehicle is inherent in the crime of transportin3 as it must of necessity accompany the commission thereof; hence( such use is not an a33ravatin3 circumstance. (People v. -orrea, CASES W(EN WARRANTLESS SEARC( IS ALLOWED ". 8arrantless search incidental to a lawful arrest reco3niBed under Section "#( !ule "#' of the !ules of -ourt and by prevailin3 <urisprudence; #. SeiBure of evidence in /plain view(/ the elements of which areD (a, a prior valid intrusion based on the valid warrantless arrest in which the police are le3ally present in the pursuit of their official duties; (b, the evidence was inadvertently discovered by the police who had the ri3ht to be where they are; (c, the evidence must be immediately apparent( and (d, /plain view/ <ustified mere evidence without further search; seiBure of

;. Search of a movin3 vehicle. ?i3hly re3ulated by the 3overnment( the vehicle2s inherent mobility reduces e1pectation of privacy especially when its transit in public thorou3hfares furnishes a hi3hly reasonable suspicion amountin3 to probable cause that the occupant committed a criminal activity; 191

6. $. '. 7.

-onsented warrantless search; -ustoms search; Stop and 9ris5; and G1i3ent and Gmer3ency -ircumstances.
(People v. =en3uin; ! "#&%"$( Apr. ";( *%+,

CASES W(EN SEARC( WIT(OUT A WARRANT WAS ,ALID

In Peo?>e 3. %anC>0ben( actin3 on information supplied by informers( police officers conducted a surveillance at the Nictory Liner 4erminal compound in San 9ernando( Pampan3a a3ainst persons who may commit misdemeanors and also on those who may be en3a3in3 in the traffic of dan3erous dru3s. At %D;& in the evenin3( the policemen noticed a person carryin3 a red travellin3 ba3 who was actin3 suspiciously. 4hey confronted him and requested him to open his ba3 but he refused. ?e acceded later on when the policemen identified themselves. Inside the ba3 were mari<uana leaves wrapped in a plastic wrapper. 4he police officers only 5new of the activities of 4an3liben on the ni3ht of his arrest. In instant case( the apprehendin3 officers already had prior 5nowled3e from their informant re3ardin3 Aruta2s alle3ed activities. In 4an3liben policemen were confronted with an on-the-spot tip. =oreover( the policemen 5new that the Nictory Liner compound is bein3 used by dru3 traffic5ers as their /business address/. =ore si3nificantly( 4an3liben was actin3 suspiciously. ?is actuations and surroundin3 circumstances led the policemen to reasonably suspect that 4an3liben is committin3 a crime. In instant case( there is no sin3le indication that Aruta was actin3 suspiciously. In Peo?>e 3. 1a>mstedt( the :arcom a3ents received reports that vehicles comin3 from Sa3ada were transportin3 mari<uana. 4hey li5ewise received information that a -aucasian comin3 from Sa3ada had prohibited dru3s on his person. 4here was no reasonable time to obtain a search warrant( especially since the identity of the suspect could not

192

be readily ascertained. ?is actuations also aroused the suspicion of the officers conductin3 the operation. 4he -ourt held that in li3ht of such circumstances( to deprive the a3ents of the ability and facility to act promptly( includin3 a search without a warrant( would be to sanction impotence and ineffectiveness in law enforcement( to the detriment of society. :ote( however( the 3larin3 differences of =almstedt to the instant case. In present case( the police officers had reasonable time within which to secure a search warrant. Second( Aruta2s identity was priorly ascertained. 4hird( Aruta was not actin3 suspiciously. 9ourth( =almstedt was searched aboard a movin3 vehicle( a le3ally accepted e1ception to the warrant requirement. Aruta( on the other hand( was searched while about to cross a street. In Peo?>e 3. BaC0sta( the :A!->= officers had probable cause to stop and search all vehicles comin3 from the north to Acop( 4ublay( @en3uet in view of the confidential information they received from their re3ular informant that a woman havin3 the same appearance as that of accusedappellant would be brin3in3 mari<uana from up north. 4hey li5ewise had probable cause to search accused-appellant2s belon3in3s since she fitted the description 3iven by the :A!->= informant. Since there was a valid warrantless search by the :A!->= a3ents( any evidence obtained in the course of said search is admissible a3ainst accused-appellant. A3ain( this case differs from Aruta as this involves a search of a movin3 vehicle plus the fact that the police officers erected a chec5point. @oth are e1ceptions to the requirements of a search warrant. In 1ana>0>0 3. 2o54t oE A??ea>s and Peo?>e ( the policemen conducted a surveillance in an area of the Maloo5an -emetery based on information that dru3 addicts were roamin3 therein. 0pon reachin3 the place( they chanced upon a man in front of the cemetery who appeared to be /hi3h/ on dru3s. ?e was observed to have reddish eyes and to be wal5in3 in a swayin3 manner. =oreover( he appeared to be tryin3 to avoid the policemen. 8hen approached and as5ed what he was holdin3 in his hands( he tried to resist. 8hen he showed his wallet( it contained mari<uana. 4he -ourt held that the policemen had sufficient reason to accost accused-appellant to determine if he was actually /hi3h/ on 193

dru3s due to his suspicious actuations( coupled with the fact that based on information( this area was a haven for dru3 addicts. 4his case is similar to Peo?>e 3. Am0nn5d0n where the police received information two days before the arrival of Aminnudin that the latter would be arrivin3 from Iloilo on board the =EN 8ilcon %. ?is name was 5nown( the vehicle was identified and the date of arrival was certain. 9rom the information they had received( the police could have persuaded a <ud3e that there was probable cause( indeed( to <ustify the issuance of a warrant. Instead of securin3 a warrant first( they proceeded to apprehend Aminnudin. 8hen the case was brou3ht before this -ourt( the arrest was held to be ille3al; hence any item seiBed from Aminnudin could not be used a3ainst him. Another recent case is Peo?>e 3. nc0nada where the police li5ewise received confidential information the day before at 6D&& in the afternoon from their informant that Gncinada would be brin3in3 in mari<uana from -ebu -ity on board =EN Sweet Pearl at 7D&& in the mornin3 of the followin3 day. 4his intelli3ence information re3ardin3 the culprit2s identity( the particular crime he alle3edly committed and his e1act whereabouts could have been a basis of probable cause for the lawmen to secure a warrant. 4his -ourt held that in accordance with Administrative -ircular :o. "; and -ircular :o. "%( series of "%+7( the lawmen could have applied for a warrant even after court hours. 4he failure or ne3lect to secure one cannot serve as an e1cuse for violatin3 Gncinada2s constitutional ri3ht. Peo?>e 3. #o>ayao( applied the stop and fris5 principle which has been adopted in Posadas v. -ourt of Appeals. In said case( Solayao attempted to flee when he and his companions were accosted by 3overnment a3ents. In the instant case( there was no observable manifestation that could have aroused the suspicion of the :A!->= a3ents as to cause them to /stop and fris5/ accused-appellant. 4o reiterate( accused-appellant was merely crossin3 the street when apprehended. 0nli5e in the abovementioned cases( accused-appellant never attempted to flee from the :A!->= a3ents when the latter identified themselves as such. -learly( this is another indication of the paucity of probable cause that

194

would sufficiently provo5e a suspicion that accused-appellant was committin3 a crime. 4his -ourt cannot a3ree with the Solicitor eneral2s contention for the =alasu3ui case is inapplicable to the instant case. In said case( there was probable cause for the warrantless arrest thereby ma5in3 the warrantless search effected immediately thereafter equally lawful. >n the contrary( the most essential element of probable cause( as e1pounded above in detail( is wantin3 in the instant case ma5in3 the warrantless arrest un<ustified and ille3al. Accordin3ly( the search which accompanied the warrantless arrest was li5ewise un<ustified and ille3al. 4hus( all the articles seiBed from the accused-appellant could not be used as evidence a3ainst her. (People v. =en3uin,
W(EN SEARC( IS NOT ,ALID

Accused-appellant Aruta cannot be said to be committin3 a crime. :either was she about to commit one nor had she <ust committed a crime. Accused-appellant was merely crossin3 the street and was not actin3 in any manner that would en3ender a reasonable 3round for the :A!->= a3ents to suspect and conclude that she was committin3 a crime. It was only when the informant pointed to accusedappellant and identified her to the a3ents as the carrier of the mari<uana that she was sin3led out as the suspect. 4he :A!->= a3ents would not have apprehended accusedappellant were it not for the furtive fin3er of the informant because( as clearly illustrated by the evidence on record( there was no reason whatsoever for them to suspect that accused-appellant was committin3 a crime( e1cept for the pointin3 fin3er of the informant. 4his the -ourt could neither sanction nor tolerate as it is a clear violation of the constitutional 3uarantee a3ainst unreasonable search and seiBure. :either was there any semblance of any compliance with the ri3id requirements of probable cause and warrantless arrests. -onsequently( there was no le3al basis for the :A!->= a3ents to effect a warrantless search of accused-appellant2s ba3( there bein3 no probable cause and the accused-appellant not havin3 been lawfully arrested. Stated otherwise( the arrest bein3 incipiently ille3al( it lo3ically follows that the

195

subsequent search was similarly ille3al( it bein3 not incidental to a lawful arrest. 4he constitutional 3uarantee a3ainst unreasonable search and seiBure must perforce operate in favor of accused-appellant. As such( the articles seiBed could not be used as evidence a3ainst accused-appellant for these are /fruits of a poisoned tree/ and( therefore( must be re<ected( pursuant to Article III( Sec. ;(#, of the -onstitution. (People v. =en3uin,
W(EN ,OLUNTAR- SUBMISSION TO SEARC( IS INAPPLICABLE

Aside from the inapplicability of the abovecited case( the act of herein accused-appellant in handin3 over her ba3 to the :A!->= a3ents could not be construed as voluntary submission or an implied acquiescence to the unreasonable search. 4he instant case is similar to People v. Gncinada. (People v. =en3uin,
W(EN SEARC( IS NOT ALLOWED A)TER AN ARREST IS MADE

In the case of People v. Lua( this -ourt heldD /As re3ards the bric5 of mari<uana found inside the appellant2s house( the trial court correctly i3nored it apparently in view of its inadmissibility. 8hile initially the arrest as well as the body search was lawful( the warrantless search made inside the appellant2s house became unlawful since the police operatives were not armed with a search warrant. Such search cannot fall under /search made incidental to a lawful arrest(/ the same bein3 limited to body search and to that point within reach or control of the person arrested( or that which may furnish him with the means of committin3 violence or of escapin3. In the case at bar( appellant was admittedly outside his house when he was arrested. ?ence( it can hardly be said that the inner portion of his house was within his reach or control.
(Gspano v. -.A.; ! "#&6;"( April "( *%+,

MEANING O) ATO TRANSPORTB IN DRUG CASES

196

In People vs. Lo 1o Ein,( the -ourt defined the term /transport/( as used under the Aan3erous Aru3s Act to mean /to carry or convey from one place to another/ ( the operative words bein3 /to carry or to convey/. 4he fact that there is actual conveyance suffices to support a findin3 that the act of transportin3 was committed. It is immaterial whether or not the place of destination was reached. (People v. Latura,
W(EN POLICE O))ICERS INTENTIONALL- PEEPED T(RU A WINDOW T(EN WENT INSIDE AND ARRESTED T(OSE INSIDE W(O ARE PAC@ING MARIJUANA. T(E SAME IS ILLEGAL

4he police officers intentionally peeped first throu3h the window before they saw and ascertained the activities of accused-appellants inside the room. In li5e manner( the search cannot be cate3oriBed as a search of a movin3 vehicle( a consented warrantless search( a customs search( or a stop and fris5; it cannot even fall under e1i3ent and emer3ency circumstances( for the evidence at hand is bereft of any such showin3. >n the contrary( it indicates that the apprehendin3 officers should have conducted first a surveillance considerin3 that the identities and address of the suspected culprits were already ascertained. After conductin3 the surveillance and determinin3 the e1istence of probable cause for arrestin3 accused-appellants( they should have secured a search warrant prior to effectin3 a valid arrest and seiBure. 4he arrest bein3 ille3al ab initio( the accompanyin3 search was li5ewise ille3al. Gvery evidence thus obtained durin3 the ille3al search cannot be used a3ainst accused-appellants; hence( their acquittal must follow in faithful obeisance to the fundamental law. (PP -vsH+.A*&A 2:LA9A / .A<:2:A.) +? AL.) G.R. .o. "7#8# ) &ec. 77) "$$$%
SEARC( AND SEI1URE WIT(OUT T(E RE0UISITE JUDICIAL WARRANT IS ILLEGAL AND ,OID AB INITIO

As a 3eneral rule( the procurement of a search warrant is required before law enforcer may validly search or seiBe the person( house( papers or effects of any individual. In People v. Aalde0) the court ruled that search and seiBure conducted without the requisite <udicial warrant is ille3al and void ab initio.

197

JLawmen cannot be allowed to violate the very law they are e1pected to enforce.K 4he -ourt is not unmindful of the difficulties of law enforcement a3encies in suppressin3 the ille3al traffic of dan3erous dru3s. ?owever( quic5 solutions of crimes and apprehension of malefactors do not <ustify a callous disre3ard of the @ill of !i3htsK. 8e need not underscore that the protection a3ainst ille3al search and seiBures is constitutionally mandated and only under specific instances are seiBures allowed without warrants. In this case( the prosecution*s evidence clearly established that the police conducted a search of accused*s bac5yard 3arden without warrant; they had sufficient time to obtain a search warrant; they failed to secure one. 4here was no showin3 of ur3ency or necessity for the warrantless search( or the immediate seiBure of the mari<uana plants. (People vs. Alberto Pasuda3,
JURISPRUDENCE:

In Peo?>e 3s. Lo &o .0nC) the -ourt defined the term JtransportK( as used under the Aan3erous Aru3s Act to mean Jto carry or convey from one place to anotherK( the operative words bein3 Jto carry or to conveyK. 4he fact that there is actual conveyance suffices to support a findin3 that the act of transportin3 was committed. It is immaterial whether or not the place of destination was reached. (People v. Latura, TRENDS AND ISSUES IN CRIMINAL JURISPRUDENCE (AND.OUT MATERIALS
DDANGEROUS DRUGS ACT.R.A. 5$67E

Buy.Bu= O>era ion! a 9or? o9 en ra>?en + ADe"oy Soli"i a ionB

A police officer*s act of solicitin3 dru3s from the accused durin3 a buy-bust operation( or what is 5nown as a Jdecoy solicitationK is not prohibited by law and does not render invalid the buy-bust operations. 4he safe of contraband is a 5ind of offense habitually committed( and the solicitation simply furnishes evidence of the criminal*s course of conduct in People v. Sta. =aria( the -ourt clarified that a Jdecoy 198

solicitationK is not tantamount to inducement or insti3ation. (People v. @otanes( .!. :o. "7%"$&( )une "7( #&&+, Me #o< o9 Buy.Bu= O>era ion 4here is no te1tboo5 method of conductin3 buy-bust operations. 4he -ourt has left to the discretion of police authorities the selection of effective means to apprehend dru3 dealers. A prior surveillance( much less a len3thy one( is not necessary especially where the police operatives are accompanied by their informant durin3 the entrapment. 9le1ibility is a trait of 3ood police wor5. X11 As to the absence of a pre-arran3ed si3nal( same is not fatal to the cause of the prosecution. 4he employment of a pre-arran3ed si3nal( or the lac5 of it( is not indispensable in a buy-bust operation. 8hat determines if there was( indeed( a sale of dan3erous dru3s is proof of the concurrence of all the elements of the offense. (People v. :icolas( .!. :o. "7++7'( )une #7( #&&+, A;=en"e o9 a Prior SurGeillan"e or Te= Buy Settled is the rule that prior surveillance is not a prerequisite for the validity of an entrapment operation especially so if the buy-bust learn is accompanied by the informant. 4he police officers may decide that time is of the essence and dispense with the need of prior surveillance. 4he absence of a prior surveillance or test buy does not affect the le3ality of the buy-bust operation. 4here is no te1tboo5 method of conductin3 buy-bust operations. 4he -ourt has left to the discretion of police authorities the selection of effective means to apprehend dru3 dealers. 9urthermore( if a police operation requires immediate implementation( time is of the essence and only hasty preparations are sometimes possible. 8hat is important is whether the speed of preparation compromised the ri3hts of the accused. (:or3ie -ruB v. People( .!. :o. "'6$+&( 9eb. '( #&&%, Pre=u?> ion o9 Regulari y It is settled rule that in cases involvin3 violations of the -omprehensive Aan3erous Aru3s Act( credence is 3iven to prosecution witnesses who are police officers for they are

199

presumed to have performed their duties in a re3ular manner( unless there is evidence to the contrary. In this case( no evidence was adduced showin3 any irre3ularity in any material aspect of the conduct of the buy-bust operation. :either was there any proof that the prosecution witnesses who were members of the buy-bust operation team( particularly those whose testimonies were in question( were impelled by any ill-feelin3 or improper motive a3ainst appellants which would raise a doubt about their credibility. (People v. Aarisan( et.al.( .!. :o. "7'"$"( )an. ;&( #&&%; People v. Llamado( .!. :o. "+$#7+( =arch ";( #&&%, T#e AO;Je" iGe Te= B In determinin3 the credibility of prosecution witnesses re3ardin3 the conduct of buy-bust operation( the Job<ective test(K as laid down in People v. Aoria( is utiliBed. It has been held that it is the duty of the prosecution to present a complete picture detailin3 the buy-bust operation.from the initial contact between the poseur-buyer and the pusher( the offer to purchase( the promise or payment of the consideration( until the consummation of the sale by the delivery of the ille3al sub<ect of sale. 4he manner by which the initial contact was made( the offer to purchase the dru3( the payment of the buy-bust money( and the delivery of the ille3al dru3 must be the sub<ect of strict scrutiny by courts to insure that law-abidin3 citiBens are not unlawfully induced to commit an offense. (People v. >n3( .!. :o. "7$%6&( 9eb. '( #&&+,

Buy.Bu= Tran=a" ion! (o: Con=u??a e< 8hen what is involved is a prosecution for ille3al sale of re3ulated or prohibited dru3s( conviction can be had if the followin3 elements are presentD (", the identity of the buyer and the seller( the ob<ect( and the consideration; and (#, the delivery of the thin3 sold and the payment therefor. 8hat is material is the proof that the transaction or sale actually too5 place( coupled with the presentation in court of the corpus delicti of the crime. 4he delivery of the contraband to the poseur-buyer and the receipt of the mar5ed money consummate the buy-bust transaction between the entrapment officers and the accused. 4he crime of ille3al sale 200

of dan3erous dru3s is committed as soon as the sale transaction is consummated. (People v. Gncila( .!. :o. "+#6"%( 9eb. "&( #&&%, Proo9 o9 Buy.Bu= :either law nor <urisprudence requires the presentation of any of the money used in a buy-bust operation( much less is it required that the boodle money be mar5ed or entered in the police blotter. 111 8ell-settled is the rule that the testimony of an informant who witnessed the ille3al sale of shabu is not essential for conviction and may be dispensed with if the poseur-buyer testified on the same( because the informant*s testimony would merely corroborate that of the poseur-buyer. (People v. Santia3o( et.al.( .!. :o. "7$;#'( :ov. #+( #&&7, Presentation of =oney 0sed; @uy @ust >peration In the case of People v. =ala( we held that what is material is the proof that the transaction actually too5 place( coupled with the presentation before the court of the corpus delicti. It bears emphasiBin3 that neither the law nor <urisprudence requires the presentation of any of the money used in a buy-bust operation( for the only elements necessary to consummate the crime is proof that the illicit transaction too5 place( coupled with the presentation in court of the illicit dru3 as evidence. (People v. Puiaoit( )r.( .!. :o. "7$###( )uly #7( #&&7, Mar'e< Money No Na ure In<i=>en=a;le! Corro;ora iGe in

4he failure to present the buy-bust money is not fatal. 4he mar5ed money used in the buy-bust operation is not indispensable but merely corroborative in nature. In the prosecution for the sale of dan3erous dru3s( the absence of mar5ed money does not create a hiatus in the evidence for the prosecution as lon3 as the sale of dan3erous dru3s is adequately proven [nd the dru3 sub<ect of the transaction is presented before the court. :either law nor <urisprudence requires the presentation of any money used in the buy-bust operation. 8hat is material to a prosecution for ille3al sale of dan3erous dru3s is the proof that the transaction or sale actually too5 place( coupled with the presentation in court of 201

the corpus delicti as evidence. (:or3ie -ruB v. People( :o. "'6$+&( 9eb. '( #&&%, )ailure o Re"or< #e Boo<le Money

.!.

4he failure of the PAGA operatives to record the boodle money will not render the buy-bust operation ille3al. 4he recordin3 of mar5ed money used in a buy-bust operation is not one of the elements for the prosecution of sale of ille3al dru3s. 4he recordin3 or non-recordin3 thereof in an official
record will not necessarily lead to an acquittal as lon3 as the sale of the prohibited dru3 is adequately proven. (People v. -lemente( et.al.( .!. :o. "7++7'( )une #7( #&&+,

)ailure o Pre=en In9or?an 4hat the informant was not presented by the prosecution does not pre<udice the State*s case as all the elements of ille3al sale and possession of shabu by appellant were satisfactorily proved by testimonial( documentary and ob<ect evidence. At best( the testimony of the informant would only have been corroborative of the testimonies of P># @arrameda and P># I3no. It is not indispensable. People v. 0y e1plainsD 4he failure to present the informer did not diminish the inte3rity of the testimony of the witnesses for the prosecution. Informers are almost always never presented in court because of the need to preserve their invaluable service to the police. 4heir testimony or identity may be dispensed with since his or her narration would be merely corroborative( as in this case( when the poseur-buyer himself testified on the sale of the ille3al dru3. (0nderscorin3 supplied, (People v. arcia( .!. :o. "7#%7$( Au3ust +( #&&7; People v. @otanes( .!. :o. "7%"$&( )une "7( #&&+; People v. @ohol( .!. :o. "7"7#%( )uly #+( #&&+; People v. :aquita( .!. :o. "+&$""( )uly #+( #&&+, Si?ul aneou= EI"#ange o9 #e Mar'e< Money an< Pro#i;i e< Drug= No Ne"e==ary Appellants* ar3ument that the poseur-buyer was not able to stri5e a deal or a sale because one of the elements of the crime char3ed was wantin3 Q payment by the poseur-buyer for the thin3 sold or receipt of the mar5ed money by the seller

202

of the dan3erous dru3s Q is erroneous. X11 4here is no rule of law which requires that in buy-bust operations there must be a simultaneous e1chan3e of the mar5ed money and the prohibited dru3 between the poseur-buyer and the pusher. It must be emphasiBed that appellants were char3ed with sellin3( tradin3( deliverin3( 3ivin3 away( dispatchin3 in transit and transportin3 dan3erous dru3s under Section $( Article II of !epublic Act :o. %"'$. 4he char3e was not limited to sellin3. Said section punishes not only the sale but also the mere act of delivery of prohibited dru3s after the offer to buy by the entrappin3 officer has been accepted by the seller. In the distribution of prohibited dru3s( the payment of any consideration is immaterial. 4he mere act of distributin3 the prohibited dru3s to others is in itself a punishable offense. (People v. -lemente( et.al.( .!. :o. "7++7'( )une #7( #&&+, Pre.o>era ion Or<er= an< Po= O>era ion Re>or 4he non-presentation of pre-operation orders and post operation report is not fatal to the cause of the prosecution( because they are not indispensable in a buy-bust operation. 8hat determines if there was( indeed( a sale of dan3erous dru3s is proof of the concurrence of all the elements of the offense; to witD (", the identity of the buyer and the seller( the ob<ect( and consideration; and (#, the delivery of the thin3 sold and the payment therefor( which the prosecution has satisfactorily established. (People v. Aumlao( .!. :o. "+"$%%( Au3ust #&( #&&+, T#e C#ain o9 Cu= o<y ReOuire?en @oard !e3ulation :o. "( series of #&&# defines chain of custody as Jthe duly recorded authoriBed movements and custody of seiBed dru3s or controlled chemicals or plant sources of dan3erous dru3s or laboratory equipment of each sta3e( from the time of seiBureEconfiscation to receipt in the forensic laboratory to safe5eepin3 to presentation in court for destruction.K As a method of authenticatin3 evidence( the chain of custody rule requires that the admission of the e1hibit be preceded by evidence sufficient to support a findin3 that the matter in question is what the proponent claims it to be. It would thus include testimony about every lin5 in the chain( 203

from the moment the item was seiBed to the time it is offered in court as evidence( such that every person who handled the same would admit how and from whom it was received( where it was and what happened to it while in the witness* possession( the condition in which it was received and the condition in which it was delivered to the ne1t lin5 in the chain. 4he same witnesses would then describe the precautions ta5en to ensure that there had been no chan3e in the condition of the item and no opportunity for someone not in the chain to have possession of the same. It is from the testimony of every witness sho handled the evidence from which a reliable assurance can be derived that the evidence presented in court is one and the same as that seiBed from the accused. (People v. >bmiranis( .!. :o. "+"6%#( Aec. "'( #&&+; People v. !uiB arcia( .!. :o. "7;6+&( 9eb. #$( #&&%; People v. -ervantes( .!. :o. "+"6%6( =arch "7( #&&%, P#y=i"al inGen ory an< >#o ogra># ReOuire?en un<er Se" ion 2$ Gi=.Q.Gi= A?ar'ingB o9 =eiKe< eGi<en"e 8hile the first sentence of Section #"(a, of the Implementin3 !ules and !e3ulations of !.A. :o. %"'$ states that Jthe apprehendin3 officerEteam havin3 initial custody and control of the dru3s shall( immediately after seiBure and confiscation( physically inventory and photo3raph the same(K the second sentence ma5es a distinction between warrantless seiBures and seiBures by virtue of a warrant( thusD (a, 1 1 1 Provided( that the physical inventory and photo3raph shall be conducted at the place where the search warrant is served; or at the nearest police station or at the nearest office of the apprehendin3 officerEteam( whichever is practicable( in case of warrantless seiBures; Provided( further 3rounds( as lon3 as the inte3rity and the evidentiary value of the seiBed items are properly preserved by the apprehendin3 officerEteam( shall not render void and invalid such seiBures of and custody over said items. HGmphasis suppliedI 4hus( the venues of the physical inventory and photo3raphy of the seiBed items differ and depend on whether the seiBure was made by virtue of a search warrant or throu3h a warrantless seiBure such as a buy-bust operation.

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In seiBures covered by search warrants( the physical inventory and photo3raph must be conducted in the place where the search warrant was served. >n the other hand( in case of warrantless seiBures such as a buy-bust operation( the physical inventory and photo3raph shall be conducted at the nearest police station or office of the apprehendin3 officerEteam( whichever is practicable; however( nothin3 prevents the apprehendin3 officerEteam from immediately conductin3 the physical inventory and photo3raphy of the items at the place where they were seiBed( as it is more in 5eepin3 with the law*s intent of preservin3 their inte3rity and evidentiary value. (People v. SancheB( .!. :o. "7$+##( >ctober "$( #&&+, Man<a ory Drug Te= ing Section ;' of !.A. %"'$ providesD SG-. ;' AuthoriBed Aru3 4estin3 ---AuthoriBed dru3 testin3 shall be done by any 3overnment forensic laboratories accredited and monitored by the A>? to safe3uard the quality of the test results. 1 1 1 4he dru3 testin3 shall employ( amon3 others( two (#, testin3 methods( the screenin3 test which will determine the positive result as well as the type of dru3 used and the confirmatory test which will confirm a positive screenin3 test. 1 1 1 4he followin3 shall be sub<ected to under3o dru3 testin3D

1111 (c, Students of secondary and tertiary schools. ---Students of secondary and tertiary schools shall( pursuant to the related rules and re3ulations as contained in the school*s student handboo5 and with notice to the parents( under3o a random dru3 testin3 1 1 1; (d, >fficers and employees of public and private offices. --->fficers and employees of public and private offices( whether domestic or overseas( shall be sub<ected to under3o a random dru3 test as contained in the company*s wor5 rules and re3ulations( 1 1 1 for purposes of reducin3 the ris5 in the wor5place. Any officer or employee found positive for use of dan3erous dru3s shall be dealt with administratively which 205

shall be a 3round for suspension or termination( sub<ect to the provisions of Article #+# of the Labor -ode and pertinent provisions of the -ivil Service Law; 1111 (f, All persons char3ed before the prosecutor*s office with a criminal offense havin3 an imposable penalty of imprisonment of not less than si1 (', years and one (", day shall under3o a mandatory dru3 test. (3, All candidates for public office whether appointed or elected both in the national or local 3overnment shall under3o a mandatory dru3 test. In addition to the above stated penalties in this Section( those found to be positive for dan3erous dru3s use shall be sub<ect to the provisions of Section "$ of this Act. On #e Un"on= i u ionali y o9 Se". C6 DgE o9 RA 5$67 Sec. ;'(3, of !A %"'$( as sou3ht to be implemented by the assailed ->=GLG- resolution( effectively enlar3es the qualification requirements enumerated in the Sec. ;( Art. NI of the -onstitution. As couched( said Sec. ;' (3, unmista5ably requires a candidate for senator to be certified ille3al-dru3 clean( obviously as a pre-condition to the validity of a certificate of candidacy for senator or( with li5e effect( a condition sine qua non to be voted upon and( if proper( be proclaimed as senator-elect. 4he ->=GLG- resolution completes the chain with the proviso that Jno person elected to any public office shall enter upon the duties of his office until he has under3one mandatory dru3 test.K Niewed( therefore( in its proper conte1t( Sec. ;'(3, of !A %"'$ and the implementin3 ->=GLG- !esolution add another qualification layer to what the "%+7 -onstitution( at the minimum( requires for membership in the Senate. 8hether or not he dru3-free bar set up under the challen3ed provision is to be hurdled before or after election is really of no moment( as 3ettin3 elected would be of little value if one cannot assume office for non-compliance with the dru3testin3 requirement. (Pimentel v. ->=GLG-( .!. :o. "'"'$+( :ov. ;( #&&+,

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>n the -onstitutionality of Sec. ;' (c,( (d,( and (f, of !A %"'$ for secondary and tertiary level students and public and private employees( while mandatory( is a random and suspicionless arran3ement. 4he ob<ective is to stamp out ille3al dru3 and safe3uard in the process Jthe well bein3 of HtheI citiBenry( particularly the youth( from the harmful effects of dan3erous dru3s.K 4his statutory purpose( per the policy-declaration portion of the law( can be achieved via the pursuit by the state of Jan intensive and unrelentin3 campai3n a3ainst the traffic5in3 and use of dan3erous dru3s 1 1 1 throu3h an inte3rated system of plannin3( implementation and enforcement of anti-dru3 abuse policies( pro3rams and pro<ects. uided by Nernonia and @oard of Gducation( the -ourt is of the view and so holds that the provisions of !A %"'$ requirin3 mandatory( random( and suspicionless dru3 testin3 of students are constitutional. Indeed( it is within the prero3ative of educational institutions to require( as a condition for admission( compliance with reasonable school rules and re3ulations and policies. 4o be sure( the ri3ht to enroll is not absolute; it is sub<ect to fair( reasonable( and equitable requirements. )ust as in the case of secondary and tertiary level students( the mandatory but random dru3 test prescribed by Sec. ;' of !A %"'$ for officers and employees of public and private offices is <ustifiable( albeit not e1actly for the same reason. 4he -ourt notes in this re3ard that petitioner S)S( other that sayin3 that Jsub<ectin3 almost everybody to dru3 testin3( without probable cause( is unreasonable( an unwarranted intrusion of the individual ri3ht to privacy( has failed to show how the mandatory( random( and suspicionless dru3 testin3 under Sec. ;'(c, and (d, of !A %"'$ violates the ri3ht to privacy and constitutes unlawful andEor unconsented search under Art. III( Secs. " and # of the -onstitution. :otably( !A %"'$ does not obli3e the employer concerned to report to the prosecutin3 a3encies any information or evidence relatin3 to the violation of the Compre-ensive &an,erous &ru,s Act received as a result of the operation of the dru3 testin3. All told( therefore( the intrusion into the employees* privacy( under !A %"'$( is accompanied by proper safe3uards( particularly a3ainst embarrassin3 lea5a3es of test results( and is relatively 207

minimal. (Social )ustice Society v. PAGA( :ov. ;( #&&+,

.!. :o. "$7+7&(

0nli5e the situation covered by Sec. ;'(c, and (d, of !A %"'$( the -ourt finds no valid <ustification for mandatory dru3 testin3 for persons accused of crimes. In the case of students( the constitutional viability of the mandatory( random( and suspicionless dru3 testin3 for students emanates primarily from the waiver by the students of their ri3ht to privacy when they see5 entry to the school( and from their voluntarily submittin3 their persons to the parental authority of school authorities. In the case of private and public employees( the constitutional soundness of the mandatory( random( and suspicionless dru3 testin3 proceeds from the reasonableness of the dru3 test policy and requirement. 8hen persons suspected of committin3 a crime are char3ed( they are sin3led out and are impleaded a3ainst their will. 4he persons thus char3ed( by the bare fact of bein3 haled before the prosecutor*s office and peaceably submittin3 themselves to dru3 testin3( if that be the case( do not necessarily consent to the procedure( let alone waive their ri3ht to privacy. 4o impose mandatory dru3 testin3 on the accused is a blatant attempt to harness a medical test a tool for criminal prosecution( contrary to the stated ob<ectives of !A %"'$. Aru3 testin3 in this case would violate a persons* ri3ht to privacy 3uaranteed under Sec. #( Art. III of the -onstitution. 8orse still( the accused dru3s( plant sources of dan3erous dru3s( controlled precursors and essential chemicals( as well as instrumentsEparaphernalia andEor laboratory equipment so confiscated( seiBed andEor surrendered( for proper disposition in the followin3 mannerD (", 4he apprehendin3 team havin3 initial custody and control of the dru3s shall( immediately after seiBure and confiscation( physically inventory and photo3raph the same in the presence of the accused or the personEs from whom such items were confiscated andEor seiBed( or hisEher representative or counsel( a representative from the media and the Aepartment of )ustice (A>),( and any elected public official who shall be required to si3n the copies of the inventory and be 3iven a copy thereof. :on-compliance by the apprehendin3Ebuy-bust team with Section #" is not fatal as lon3 as there is <ustifiable 208

3round therefor( and as lon3 as the inte3rity and the evidentiary value of the confiscatedEseiBed items( are properly preserved by the apprehendin3 officerEteam. Its noncompliance will not render an accused*s arrest ille3al or the items seiBedEconfiscated from him inadmissible. 8hat is of utmost importance is the preservation of the inte3rity and the evidentiary value of the seiBed items( as the same would be utiliBed in the determination of the 3uilt or innocence of the accused. (People v. Ael =onte( .!. :o. "7%%6&( April #;( #&&+;
People v. -lemente( et.al.( .!. :o. "7++7'( )une #7( #&&+; People v. =acatin3a3( .!. :o. "+"&;7( )anuary "%( #&&%,

Assumin3 that Sections #" and +' were indeed breached( appellant should have raised these issues before the trial court. 4his( he did not do. :ever did he question the custody and disposition of the items that were supposedly ta5en from him. It was only on appeal before the -ourt of Appeals that he raised them. 4his( he cannot do. 8e heldD 4he law e1cuses non-compliance under <ustifiable 3rounds. ?owever( whatever <ustifiable 3rounds may e1cuse the police officers involved in the buy-bust operation in this case from complyin3 with Section #" will remain un5nown( because appellant did not question durin3 trial the safe5eepin3 of the items seiBed from him. Indeed( the police officers* alle3ed violations of Sections #" and +' of !epublic Act %"'$ were not raised before the trial court but were raised instead for the first time on appeal. In no instance did appellant least intimate at the trial court that were lapses in the sa5e5eepin3 of the seiBed items that affected their inte3rity and evidentiary value. >b<ection t evidence cannot be raised for the first time on appeal; when a party desires the court to re<ect the evidence offered( he must so state in the form of ob<ection. 8ithout such ob<ection he cannot raise the question for the first time on appeal. DPeo>le G. Pringa=! G.R. No. $F752&! Augu= C$! 233FE Tran=9er o9 Drug.Rela e< "a=e= o PDEA DSe" ion= 2$ N &6 o9 R.A. 5$67E 4o recapitulate( the challen3ed buy-bust operation( albeit made without the participation of PAGA( did not violate appellant*s constitutional ri3ht to be protected from ille3al arrest. 4here is nothin3 in !epublic Act :o. %"'$ which even

209

remotely indicate the intention of the le3islature to ma5e an arrest made without the participation of the PAGA ille3al and evidence obtained pursuant to such an arrest inadmissible. =oreover( the law did not deprive the P:P of the power to ma5e arrests. DPeo>le G. S a. Maria! G.R. No. $F$3$5! )e;ruary 2C! 233FE Nega iGe Allega ion 4he 3eneral rule is that if a criminal char3e is predicated on a ne3ative alle3ation( or a ne3ative averment is an essential element of a crime( the prosecution has the burden to prove the char3e. ?owever( this rule admits of e1ceptions. 8here the ne3ative of an issue does not permit of direct proof( or where the VVVVV onus probandi rests upon him. Stated otherwise( it is not incumbent on the prosecution to adduce positive evidence to support a ne3ative averment the truth of which is fairly indicated by established circumstances and which( if untrue( could readily be disproved by the production of documents or other evidence within the defendant*s 5nowled3e or control. 9or e1ample( where a char3e is made that a defendant carried on a certain business without a license (as in the case at bar( whether the accused is char3ed with the sale of a re3ulated dru3 without authority,( the fact that he has a license is a matter which is peculiarly within his 5nowled3e and he must establish that fact or suffer conviction. 1 1 1 (italics in the ori3inal, DSu 1#i S#an R AlGin C#ing So! G. Peo>le G.R. No. $655CC! Mar"# 5! 233FE Li?i e< A>>li"a ion o9 #e RPC on R.A. 5$67 8ith the aforesaid section( the provisions of the !evised Penal -ode shall no lon3er apply to the provisions of the Aru3s law e1cept when the offender is a minor. 4hus( Article ';(#, of the !evised Penal -ode shall not be used in the determination of the penalty to be imposed on the accused. Since Section %+ of the Aru3s law contains the word Jshall(K the non-applicability of the !evised Penal -ode provisions is mandatory( sub<ect only to the e1ception in case the offender is a minor. DPeo>le G. Ni"ola=! G.R. No. $F32C%! )e;ruary &! 233FE

210

In accordance with Section %+( Article XIII of !epublic Act :o. %"'$( the provisions of the !evised Penal -ode find limited applicability with respect to the provisions of the said Act. Section %+ readsD
Sec. %+. Limited Applicability of t-e Revised Penal Code. - :otwithstandin3 any law( rule or re3ulation to the contrary( the provisions of the !evised Penal -ode (Act :o. ;+"$,( as amended( shall not apply to the provisions of this Act( e1cept in the case of minor offenders. 8here the offender is a minor( the penalty for acts punishable by life imprisonment to death provided herein shall be reclusion perpetua to death.

4hus( in determinin3 the imposable penalty( Article ';(#, of the !evised Penal -ode shall not be applied. 0nder this article( in all cases in which the law prescribes a penalty composed of two indivisible penalties( the lesser penalty shall be applied when there are neither miti3atin3 nor a33ravatin3 circumstances. Since Section %+ of the Aru3s Law contains the word Jshall(K the non-applicability of the !evised Penal -ode provisions is mandatory( sub<ect to e1ception only in case the offender is a minor. DPeo>le G. San o=! G.R. No. $F6FC7! June 26! 233&E

RECENT CASES on Se" ion 2$ o9 RA 5$67

AC0UITTAL: Ca"ao G. Peo>le! G.R. No. $&3&F3! January 22! 23$3 4he patent inconsistency between the testimonies of =an3apit and Pan3-a3( on one hand( and the testimony of Ancheta on the other hand( necessarily leads to doubt that the plastic sachet of shabu identified in court is the same item that was alle3edly seiBed and confiscated from petitioner. At any rate( the identification made by the witnesses on the item alle3edly seiBed from petitioner is rendered meanin3less and

211

bereft of probative value in view of the cate3orical denial of the evidence custodian that he received the same from =an3apit. ?ence( there can be no crime of ille3al possession of a prohibited dru3 when na33in3 doubts persist on whether the item confiscated was the same specimen e1amined and established to be the prohibited dru3. Peo>le G. @a?a<! G.R. No. $F%$5&! January $5! 23$3 4he followin3 lin5s must be established ion the chain of custody in a buy-bust situationD first( the seiBure and mar5in3( if practicable( of the ille3al dru3 recovered from the accused by the apprehendin3 officer; second( the turnover of the ille3al dru3 seiBed by the apprehendin3 officer to the investi3atin3 officer; third( the turnover by the investi3atin3 officer of the ille3al dru3 to the forensic chemist for laboratory e1amination; and fourth( the turnover and submission of the mar5ed ille3al dru3 seiBed from the forensic chemist to the court. In this case( however( SP># SancheB* testimony lac5s specifics on how the seiBed shabu was handled immediately after the accused-appellant*s arrest. SP># SancheB* testimony re3ardin3 the post-arrest police investi3ation failed to provide particulars on whether the shabu was turned over to the investi3ator. 4he pieces of evidence notably fail to identify the person who personally brou3ht the seiBed shabu to the P:P -rime Laboratory. 4hey also fail to clearly identify the person who received the shabu at the forensic laboratory. 4here was also non-compliance with the prescribed procedure under Sec. #" of !A %"'$. SP># SancheB failed to provide specific details on how the seiBed shabu was mar5ed althou3h the evidence shows that the shabu was mar5ed as JGS-"-"'"&&%K before it was sent to a forensic laboratory. ?is testimony also failed to state whether the mar5in3 of the shabu was done immediately after its seiBure (as Section #" of !A %"'$ requires, or durin3 the investi3ation. ?is testimony li5ewise failed to disclose if a physical inventory and photo3raphy of the seiBed items had ta5en place( or if they had( whether these were underta5en in the presence of the accused or his counsel( or a representative from the media and the Aepartment of )ustice( and of an elective official. Peo>le G. )ron<oKo! G.R. No. $FF$6%! June C3! 2335

212

4o establish the identity of the shabu seiBed from 9rondoBo( the procedures laid down in !ep. Act :o. %"'$ should be complied with. Section #" of the Implementin3 !ules and !e3ulations of !ep. Act :o. %"'$ clearly outlines the post-seiBure procedure in ta5in3 custody of seiBed dru3s. It statesD (", 4he apprehendin3 team havin3 initial custody and control of the dru3s shall( immediately after seiBure and confiscation( physically inventory and photo3raph the same in the presence of the accused or the personEs from whom such items were confiscated andEor seiBed( or hisEher representative or counsel( a representative from the media and the Aepartment of )ustice (A>),( and any elected public official who shall be required to si3n the copies of the inventory and be 3iven a copy therof. In this case( the arrestin3 officers failed to strictly comply with the procedures for the custody and disposition of confiscated dan3erous dru3s as prescribed by !ep. Act :o. %"'$. 4he arrestin3 officers did not mar5 the shabu immediately after they arrested 9rondoBo. 9urther( while there was testimony re3ardin3 the mar5in3 of the shbu after it was turned over to the police investi3ator( no evidence was presented to prove that the mar5in3 therof was done in the presence of 9rondoBo. Also( fatal in the prosecution*s case is the failure of the arrestin3 officers to ta5e a photo3raph and ma5e an inventory of the confiscated materials in the presence of 9rondoBo. Li5ewise( there was no mention that any representative from the media( A>) or any elected public official had been present durin3 the inventory or that any of these persons had been required to si3n the copies of the inventory. Peo>le G. Par oKa! G.R. No. $&2%$&! May &! 2335 P>; 4ou3an testified that he mar5ed the two plastic sachets containin3 white crystalline substance in the police station. ?owever( he did not mar5 the seiBed dru3s immediately after he arrested appellant in the latter*s presence. :either did he ma5e an inventory and ta5e a photo3raph of the confiscated items in the presence of appellant. 4here was no representative from the media and the Aepartment of )ustice( or any elected public official who participated in the operation and who were supposed to si3n and inventory of seiBed items and be 3iven copies thereof. :one of these statutory safe3uards were observed. 213

8hile non-compliance by the buy-bust team with Section #" is not fatal as lon3 as there is a <ustifiable 3round therefore( and as lon3 as the inte3rity and the evidentiary value of the confiscatedEseiBed items are properly preserved by the apprehendin3 team( yet these conditions were not met in the case at bar. :o e1planation was offered by P>; 4ou3an for his failure to observe the rule. 9urthermore( while P>; 4ou3an admitted to have in his possession the shabu from the time appellant was apprehended at the crime scene to the police station( records are bereft of proof on how the seiBed items were handled from the time they left the hands of P>; 4ou3an. P>; 4ou3an mentioned a certain Inspector =anahan as the one who si3ned the request for laboratory e1amination. ?e did not however relate to whom the custody of the dru3s was turned over. 9urthermore( the evidence of the prosecution did not reveal the identity of the person who had the custody and safe5eepin3 of the dru3s after its e1amination and pendin3 presentation in court. 4he failure of the prosecution to establish the chain of custody is fatal to its cause. All told( the identity of the corpus delicti in this case was not proven beyond reasonable doubt. Peo>le G. Ro;le=! G.R. No. $FF223! A>ril 2%! 2335 4he -ourt finds that the prosecution failed to clearly establish the chain of custody of the seiBed plastic sachet containin3 shabu sub<ect of the alle3ed sale. P># @esona and P>; =alicse did not adequately e1plain how the corpus delicti transferred hands from the time it was supposedly confiscated from appellant to the time it was presented in court as evidence. P># @esona testified that he turned over the sachet of shabu to SP>; >cfemia when appellant was arrested. :o e1planation was 3iven( however( as to how the substance reached the crime laboratory for e1amination. P># @esona did not mar5 the substance immediately after the apprehension of appellant. 8hile P># @esona claimed that it was mar5ed by an investi3ator in his presence( he did not state at what precise point of the operation the mar5in3 too5 place. @oth the investi3ator who purportedly made the mar5in3 and SP>; >cfemia were not presented in court to testify on what transpired before and after the substance was turned over to them. Additionally( nothin3 on record shows compliance by the buy-bust team with the procedural 214

requirements of Section #"( para3raph " of Article II of !.A. :o. %"'$\with respect to custody and disposition of confiscated dru3s. 4here was no physical inventory and photo3raph of the items alle3edly confiscated from appellant. 4here was li5ewise no e1planation offered for the failure to observe the rule. 4he failure of the police to comply with the procedure in the custody of seiBed dru3s raises doubt as to their ori3ins( and ne3ates the operation of the presumption of re3ularity accorded to police officers. Sale= G. Peo>le! G.R. No. $&2256! A>ril F! 2335 :either physical inventory nor photo3raph of the sachet and buy-bust money ta5en in the presence of petitioner( or her representative or counsel( a representative from the media and the Aepartment of )ustice( as required by law( was ta5en. :o <ustification whatsoever was proffered by the apprehendin3 team for its failure to observe the le3al safe3uards. Carino G. Peo>le! G.R. No. $F&F7F! Mar"# $C! 2335 4he prosecution has not shown that they had e1tended reasonable efforts to comply with the statutory requirements in handlin3 the evidence. 9rom the testimonies of the members of the arrestin3 team( it is clear that they immediately seiBed the plastic sachets( too5 custody thereof and brou3ht the same to the police station. It was at the police station.and not at the place where the item was seiBed from appellant.where the unnamed police investi3ator had placed the mar5in3s on the specimens. =oreover the mar5in3s were placed not in the presence of petitioners as required by law. 4hese flaws in the conduct of the postseiBure custody of the dan3erous dru3 alle3edly recovered from petitioners( ta5en to3ether with the failure of the 5ey persons who handled the same to testify on the whereabouts of the e1hibits before they were offered in evidence in court( militate a3ainst the prosecution*s cause because they not only cast doubt on the identity of the corpus delicti but also tend to ne3ate( if not totally discredit( the claim of re3ularity in the conduct of official police operation advanced by the >S .

215

Peo>le G. Gar"ia! G.R. No. $FC%&3! )e;ruary 27! 2335 >ther than the mar5in3s made by P>" arcia and the police investi3ator (whose identity was not disclosed,( no physical inventory was ever made( and no photo3raph of the seiBed items was ta5en under the circumstances required by !.A. :o. %"'$ and its implementin3 rules. 8hile there was testimony with respect to the mar5in3 of the seiBed items at the police station( no mention whatsoever was made on whether the mar5in3 had been done in the presence of !uiB or his representatives. 4here was li5ewise no mention that any representative from the media and the Aepartment of )ustice( or any elected official had been present durin3 this inventory( or that any of these people had been required to si3n the copies of the inventory. In addition( while P>" arcia duly testified on the identity of the buyer and seller( on the consideration that supported the transaction( and on the manner the sale too5 place( -the prosecution*s evidence failed to establish the chain that would have shown that the mari<uana presented in court was the very item seiBed from !uiB at the time of his arrest.

Peo>le G. O;?irani=! G.R. No. $&$%52! De"e?;er $6! 233& @oard !e3ulation :o. "( series of #&&# defines chain of custody as Jthe duly recorded authoriBed movements and custody of seiBed dru3s or controlled chemicals or plant sources of dan3erous dru3s or laboratory equipment of each sta3e( from the time of seiBureEconfiscation to receipt in the forensic laboratory to safe5eepin3 to presentation in court for destruction.K It must be established with unwaverin3 e1actitude that the dan3erous dru3 presented in court as evidence a3ainst the accused is the same as that seiBed from him in the first place. 4he chain of custody requirement performs this function in that it ensures that unnecessary doubts concernin3 the identity of the evidence are removed. 4he prosecution evidence in the case at bar( however( does not suffice to afford such assurance. -inco( who( accordin3 to Nelasco( too5 initial custody of the plastic sachet at the time of arrest and who alle3edly mar5ed the same with the initials JS>>K at the police station( was not even presented in court. 4he same is true with respect to the laboratory for analysis 216

and testin3. Aside from that( it was not reasonably e1plained why these same witnesses were not able to testify in court. 9urthermore( Nelasco( the leader of the raidin3 team( admitted that as soon as appellant was arrested( -inco had ta5en custody of the plastic sachet of shabu( placed it in his poc5et and brou3ht the same to3ether with appellant to the police station. It was at the police station Qand not at the place where the item was seiBed from appellant Qwhere accordin3 to him (Nelasco,( -inco had placed the initials JS>>K on the specimen. Nelasco could not even remember whether or not the specimen had been properly inventoried and photo3raphed at least in appellant*s presence. Gven more tellin3 is the fact that( as elicited from Nelasco himself durin3 his cross-e1amination( no evidence custodian had been desi3nated by the raidin3 team to safe3uard the identity and inte3rity of the evidence supposedly seiBed from appellant. Bon<a< G. Peo>le! G.R. No. $FC&3%! De"e?;er $3! 233& 9ailure of the apprehendin3 officers to comply with the inventory and photo3raphin3 requirements of Section #" !A %"'$ compromised the identity of the items seiBed( which is the corpus delicti of the crimes char3ed. Peo>le G. Maga ! G.R. No. $F55C5! Se> e?;er 25! 233& It is indisputable that the procedures for the custody and disposition of confiscated dan3erous dru3s in Section #" of !.A. :o. %"'$\were not complied with. P>" Santos admitted that he mar5ed the two plastic sachets containin3 white crystalline substance in the police station. ?e did not mar5 the seiBed items immediately after he arrested appellant in the latter*s presence. ?e also did not ma5e an inventory and ta5e a photo3raph of the confiscated materials in the presence of appellant. >ther that the three policemen( there were no other people who participated in the alle3ed buy-bust operation.\4here was no representative from the media and the Aepartment of )ustice( or any elected public official who participated in the operation and who were supposed to si3n an inventory of seiBed items and be 3iven copies thereof. :one of the statutory safe3uards were observed. Althou3h P>" Santos had written his initials on the two plastic sachets submitted to the P:P -rime Laboratory >ffice for 217

e1amination( it was not indubitably shown by the prosecution that P>" Santos immediately mar5ed the seiBed dru3s in the presence of appellant after their alle3ed confiscation. 4here is doubt as to whether the substances seiBed from appellant were the same ones sub<ected to laboratory e1amination and presented in court. !.A. :o. %"'$ had placed upon the law enforcers the duty to establish the chain of custody of the seiBed dru3s to ensure the inte3rity of the corpus delicti. 4hru proper e1hibit handlin3( stora3e( labelin3 and recordin3( the identity of the seiBed dru3s is insulated from doubt from their confiscation up to their presentation in court. 8hile the seiBed dru3s may be admitted in evidence( it does not necessarily follow that the same should be 3iven evidentiary wei3ht if the procedure in Section #" of !.A. :o. %"'$ was not complied with. 4he -ourt stressed that the admissibility of the seiBed dan3erous dru3s in evidence should not be equated with its probative value in provin3 the corpus delicti. 4he admissibility of evidence depends on its relevance and competence while the wei3ht of evidence pertains to evidence already admitted and its tendency to convince and persuade. All told( the corpus delecti in this case is not le3ally e1tant. Malillin G. Peo>le! G.R. No. $F257C! A>ril C3! 233& Section #"-of the Implementin3 !ules and !e3ulations of !.A. :o. %"'$ clearly outlines the post-seiBure procedure in ta5in3 custody of seiBed dru3s. In a lan3ua3e too plain to require a different construction( it mandates that the officer acquirin3 initial custody of dru3s under a search warrant must conduct the photo3raphin3 and the physical inventory of the item at the place where the warrant has been served. Gsternon deviated from this procedure. It was elicited from him that at the close of the search of petitioner*s house( he brou3ht the seiBed items immediately to the police station for the alle3ed purpose of ma5in3 a Jtrue inventoryK thereof( but there appears to be no reason why a true inventory could not be made in petitioner*s house when in fact the apprehendin3 team was able to record and mar5 the seiBed items and there and then prepare a seiBure receipt therefore. Lest it be for3otten( the raidin3 team has had enou3h opportunity to cause the issuance of the warrant which means that it has had as much time to e1cuse non-compliance therewith( the 218

same cannot benefit the prosecution as it failed to offer any acceptable <ustification for Gsternon*s course of action. Li5ewise( Gsternon*s failure to deliver the seiBed items to the court demonstrates a departure from the directive in the search warrant that the items seiBed be immediately delivered to the trial court with a true and verified inventory of the same(-as required by !ule "#'( Section "# of the !ules of -ourt. People v. o characteriBed this requirement as mandatory in order to preclude the substitution of or tamperin3 with said items by interested parties. 4hus( as a reasonable safe3uard( People vs. Ael -astillo declared that the approval by the court which issued the search warrant is necessary before police officers can retain the property seiBed and without it( they would have no authority to retain possession thereof and more so to deliver the same to another a3ency. =ere tolerance by the trial court of a contrary practice does not ma5e the practice ri3ht because it is violative of the mandatory requirements of the law and it thereby defeats the very purpose for the enactment. Peo>le G. Or eKa! G.R. No. $FC37$! July C$! 233F 4he records do not show that police officers complied with the proper procedure in the custody of seiBed dru3s andEor paraphernalia should( immediately after seiBure or confiscation( have the same physically inventoried and photo3raphed in the presence of the accused( if there be any( and or his representative( who shall be required to si3n the copies of the inventory and be 3iven a copy thereof. 4he failure of the a3ents to comply with the requirement raises doubt whether what was submitted for laboratory e1amination and presented in court was actually recovered from appellant. It ne3ates the presumption that official duties have been re3ularly performed by the police officers. CON,ICTION: Peo>le G. De Leon! G.R. No. $&6%F$! January 27! 23$3 Sec. #" of !A %"'$ need not be followed as an e1act science. :on-compliance with Sec. #" does not render an accused*s arrest ille3al or the items seiBeEconfiscated from 219

him inadmissible. 8hat is essential is Jthe preservation of the inte3rity and the evidentiary value of the seiBed items( as the same would be utiliBed in the determination of the 3uilt or innocence of the accused.K In the instant case( there was substantial compliance with the law and the inte3rity of the dru3s seiBed from appellant was preserved. Peo>le G. CruK! G.R. No. $&7C&$! De"e?;er $6! 2335 Appellant ar3ues that the police officers failed to photo3raph or mar5 the shabu immediately after the alle3ed buy-bust operation in his presence( or his counsel( a representative from the media( a representative from the Aepartment of )ustice( or any elected public official. 4he -ourt( however( finds that there was substantial compliance with the law and the inte3rity of the dru3s seiBed was preserved. P>; Ara3o seiBed and confiscated the dan3erous dru3s( as well as the mar5ed money( appellant was immediately arrested; and in that spot where he was arrested( P>; Ara3o mar5ed the sachets of shabu with the initials of appellant. P># A3uinaldo also mar5ed the two (#, sachets he found in appellant*s person with appellant*s initials. Appellant was then brou3ht to the police station for investi3ation. Immediately thereafter( the plastic sachets were forwarded to the P:P -rime Laboratory with a request for e1amination to determine the presence of any prohibited dru3. As per Physical Science !eport :o. A-767-&;( the specimens submitted contained methamphetamine hydrochloride or shabu. Peo>le G. ,en ura! G.R.No. $&%57F! O" o;er 2F! 2335 4he purpose of the procedure outlined in the implementin3 rules (Sec. #" !A %"''$, is centered on the preservation of the inte3rity and evidentiary value of the seiBed items. All evidence( includin3 the mar5in3s on the plastic sachet containin3 the shabu( prove that the substace tested by the forensic chemist( whose laboratory tests were welldocumented( was the same as that ta5en from accusedappellant. =oreover( the inte3rity of the evidence is presumed to be preserved( unless there is a showin3 of bad faith( ill will( or proof that the evidence has been tampered with.

220

Peo>le G. LaKaro! G.R. No. $&6%$&! O" o;er $6! 2335 Appellant raised the buy-bust team*s alle3ed noncompliance with Section #"( Article II of !epublic Act :o. %"'$ for the first time on appeal. In People v. Sta. =aria( the -ourt held that the law e1cuses non-compliance under <ustifiable 3rounds. ?owever( whatever <ustifiable 3rounds may e1cuse the police officers involved in the buy-bust operation in this case from complyin3 with Section #" will remain un5nown( because appellant did not question durin3 trial the safe5eepin3 of the items seiBed from him. 4horou3h review of the records( however( reveals that the chain of custody of the seiBed substance was not bro5en and that the prosecution did not fail to identify properly the dru3s seiBed in this case.

Peo>le G. Re=urre""ion! G.R. No. $&6C&3! O" o;er $2! 2335 )urisprudence tells us that the failure to immediately mar5 seiBed dru3s will not automatically impair the inte3rity of chain of custody. People v. SancheB e1plains that !A %"'$ does not specify a time frame for Jimmediate mar5in3(K or where said mar5in3 should be done. 4o be able to create a first lin5 in the chain of custody( then( what is required is that the mar5in3 be made in the presence of the accused and upon immediate confiscation. JImmediate confiscationK has no e1act definition. 4hus( in People v. um->yen( testimony that included the mar5in3 of the seiBed items at the police station and in the presence of the accused was sufficient in showin3 compliance with the rules on chain of custody. =ar5in3 upon immediate confiscation contemplates even mar5in3 at the nearest police station or office of the apprehendin3 team.

Peo>le G. Teo<oro! G.R. No. $&7$6%! June 22! 2335 4he chain of custody of the seiBed prohibited dru3s was shown not to have been bro5en. After the seiBure of the dru3s from appellant*s possession( P>" -limacosa and P>" Antipasado mar5ed the two (#, plastic sachets. 4he plastic sachet that was sold to P>" -limacosa was mar5ed =-( while 221

the plastic sachet that was recovered by P>" Antipasado was mar5ed =--". 4hese plastic sachets containin3 a white crystalline substance were immediately forwarded to the P:P -rime Laboratory in GPA for e1amination to determine the presence of dan3erous dru3s. After a qualitative e1amination conducted on the specimens( PSI -e<es concluded that the white crystalline substance was positive for methylamphetamine hydrochloride (shabu,( a dan3erous dru3. 4here can be no doubt that the dru3s seiBed from appellant were the same ones e1amined in the crime laboratory. Plainly( the prosecution established the crucial lin5 in the chain of custody of the seiBed shabu from the time they were first discovered until they were brou3ht for e1amination. )urisprudence teems with pronouncements that noncompliance with Section #" will not render an accused*s arrest ille3al or the items seiBed or confiscated from him inadmissible. Aside from the presumption that the police operatives re3ularly performed their duties( they 3ave consistent and strai3htforward narrations of what transpired on =ay #+( #&&6 that they apprehended the appellant in a buy-bust operation( and that upon bein3 fris5ed( appellant was also found to be in possession of another sachet containin3 a white crystalline substance later on found to be methamphetamine hydrochloride( more popularly 5nown as shabu.

Peo>le G. Gu?.Oyen! G.R. No. $&22C$! A>ril $6! 2335 4he prosecution*s evidence sufficiently established the unbro5en chain of custody of the seiBed dru3s be3innin3 from the entrapment team( to the investi3atin3 officer( to the forensic chemist whose laboratory tests were welldocumented( up to the time there were offered in evidence. 4he chain-of-custody rule requires that the admission of an e1hibit be preceded by evidence sufficient to support a findin3 that the matter in question is what the proponent claims it to be. 4he arrestin3 officers also strictly complied with the 3uidelines prescribed by law re3ardin3 the custody and control of the seiBed dru3s.\4here was testimony re3ardin3 the mar5in3 of the seiBed items at the police station and in 222

the presence of appellant. Li5ewise there was mention that an elected official was present durin3 the inventory. In addition( it appears on record that the team photo3raphed the contraband in accordance with law.\Absent any indication that the police officers were ill-motivated in testifyin3 a3ainst appellant( full credence should be 3iven to their testimonies. In sum( contrary to appellant*s lone ar3ument( the prosecution established the corpus delicti with moral certainty. 9inally( it bears underscorin3 that appellant himself admitted that he was carryin3 mari<uana at the time of his arrest and even thou3h he 5new it was a3ainst the law to so possess it in any amount. Peo>le G. Lla?a<o! G.R. No. $&72F&! Mar"# $C! 2335 4he failure on the part of the police officers to ta5e photo3raphs and ma5e an inventory of the dru3s seiBed from the appellant was not fatal because the prosecution was able to preserve the inte3rity and evidentiary value of the said ille3al dru3s. P># @rubio was able to put the necessary mar5in3s on the sachet of shabu bou3ht from appellant( for identification purposes( immediately after the consummation of the dru3 sale. ?e personally delivered the same specimen to the P:P -rime Laboratory for chemical analysis on the same day the entrapment was conducted. Lastly( P># @rubio was able to identify the said mar5in3s in court.

Peo>le G. Ma"a ingag! G.R. No. $&$3CF! January $5! 2335 4he seiBed sachet of shabu was immediately mar5ed for proper identification and forwarded to the -rime Laboratory for e1amination. 4he -hemistry !eport stated that the specimen submitted by the apprehendin3 officers indeed bore the mar5in3 JG1h A =A "7"#&&-&"-"6K and that the same 3ave positive result to the presence of =ethamphetamine ?ydrochloride. 9orensic -hemical >fficer 4ria confirmed that she e1amined the specimen submitted by the PAGA and that she was the one who prepared the -hemistry !eport :o. A$6-&6. It is thus evident that the identity of the corpus delicti has been properly preserved and established by the prosecution. 223

4he inte3rity of the evidence is presumed to be preserved unless there is a showin3 of bad faith( ill will( or proof that the evidence has been tampered with. Appellant in this case has the burden to show that the evidence was tampered or meddled with to overcome a presumption of re3ularity in the handlin3 of e1hibits by public officers and a presumption that public officers properly dischar3e their duties.\Appellant failed to dischar3e such burden. 4his -ourt has held that non-compliance with Section #"( Article II of !.A. :o. %"'$ will not render an accused*s arrest ille3al or the items seiBedEconfiscated from him inadmissible. 8hat is of utmost importance is the preservation of the inte3rity and the evidentiary value of the seiBed items( as the same would be utiliBed in the determination of the 3uilt or innocence of the accused. Peo>le G. Del Mon e! G.R. No. $F55%3! A>ril 2C! 233& :on-compliance with Section #" will not render an accused*s arrest ille3al or the items seiBedEconfiscated from him inadmissible. 8hat is of utmost importance is the preservation of the inte3rity and the evidentiary value of the seiBed items as the same would be utiliBed in the determination of the 3uilt or innocence of the accused. In the case at bar( appellant never questioned the custody and disposition of the dru3 that was ta5en from him. In fact( he stipulated that the dru3 sub<ect matter of this case was forwarded to P:P !e3ional -rime Laboratory >ffice ;( =alolos( @ulacan for laboratory e1amination which e1amination 3ave positive result for methamphetamine hydrochloride( a dan3erous dru3. 4hus( the inte3rity and the evidentiary value of the dru3 seiBed from appellant not to have been compromised. Similarly( non-compliance with Section #" of said law( particularly the ma5in3 of the inventory and the photo3raphin3 of the dru3s confiscated andEor seiBed( will not render the dru3s inadmissible in evidence. 0nder Section ; of !ule "#+ of the !ules of -ourt( evidence is admissible when it is relevant to the issue and is not e1cluded by the law or these rules. 9or evidence to be inadmissible( there should be a law or rule which forbids its reception. :othin3 in the law( however( will brin3 about the non-admissibility of the confiscated andEor seiBed dru3s due to non-compliance with 224

Section #" of !epublic Act :o. %"'$. 4he issue therefore( if there is non-compliance with said section( is not of admissibility( but of wei3ht Q evidentiary merit or probative value Q to be 3iven the evidence. 4he wei3ht to be 3iven by the courts on said evidence depends on the circumstances obtainin3 in each case.

225