G.R. No.

L-25434 July 25, 1975

HONORABLE ARSENIO N. ROLDAN, JR., in his capacity as Acting Commissioner, Philippine
Fisheries Commission, and THE PHILIPPINE NAVY, petitioners,
vs.
HONORABLE FRANCISCO ARCA, as Presiding Judge of the Court of First Instance of Manila
(Branch 1) and MORABE, DE GUZMAN & COMPANY, respondents.
Office of the Solicitor General Arturo A. Alafriz and Solicitor Augusto M. Amores for petitioners.
J. C. Yuseco and A.R. Narvasa for private respondent.
MAKASIAR, J.:
A petition for certiorari and prohibition with preliminary injunction to restrain respondent Judge from
enforcing his order dated October 18, 1965, and the writ of preliminary mandatory injunction thereunder
issued.
On April 3, 1964, respondent company filed with the Court of First Instance of Manila a civil case docketed
as No. 56701 against petitioner Fisheries Commissioner Arsenio N. Roldan, Jr., for the recovery of fishing
vessel Tony Lex VI (one of two fishing boats in question) which had been seized and impounded by
petitioner Fisheries Commissioner through the Philippine Navy.
On April 10, 1964, respondent company prayed for a writ of preliminary mandatory injunction with
respondent court, but said prayer was, however, denied.
On April 28, 1964, the Court of First Instance of Manila set aside its order of April 10, 1964 and granted
respondent company's motion for reconsideration praying for preliminary mandatory injunction. Thus,
respondent company took Possession of the vessel Tony Lex VI from herein petitioners by virtue of the
abovesaid writ.
On December 10, 1964, the Court of First Instance of Manila dismissed Civil Case No. 56701 for failure of
therein petitioner (respondent company herein) to prosecute as well as for failure of therein defendants
(petitioners herein)to appear on the scheduled date of hearing. The vessel, Tony Lex VI or Srta. Winnie
however, remained in the possession of respondent company.
On July 20, 1965, petitioner Fisheries Commissioner requested the Philippine Navy to apprehend vessels
Tony Lex VI and Tony Lex III, also respectively called Srta. Winnie and Srta. Agnes, for alleged violations of
some provisions of the Fisheries Act and the rules and regulations promulgated thereunder.
On August 5 or 6, 1965, the two fishing boats were actually seized for illegal fishing with dynamite. Fish
caught with dynamite and sticks of dynamite were then found aboard the two vessels.
On August 18, 1965, the Fisheries Commissioner requested the Palawan Provincial Fiscal to file criminal
charges against the crew members of the fishing vessels.
On September 30, 1965, there were filed in the court of First Instance of Palawan a couple of informations,
one against the crew members of Tony Lex III, and another against the crew members of Tony Lex VI
both for violations of Act No. 4003, as amended by Commonwealth Acts Nos. 462, 659 and 1088, i.e., for
illegal fishing with the use of dynamite. On the same day, the Fiscal filed an ex parte motion to hold the
boats in custody as instruments and therefore evidence of the crime (p. 54, rec.), and cabled the Fisheries
Commissioner to detain the vessels (p. 56, rec.).
On October 2 and 4, likewise, the Court of First Instance of Palawan ordered the Philippine Navy to take the
boats in custody.
On October 2, 1965, respondent company filed a complaint with application for preliminary mandatory
injunction, docketed as Civil Case No. 62799 with the Court of First Instance of Manila against herein
petitioners. Among others, it was alleged that at the time of the seizure of the fishing boats in issue, the
same were engaged in legitimate fishing operations off the coast of Palawan; that by virtue of the offer of
compromise dated September 13, 1965 by respondent company to the Secretary of Agriculture and
Natural Resources, the numerous violations of the Fishery Laws, if any, by the crew members of the vessels
were settled.
On October 9, 1965, petitioners, represented by the Solicitor General, opposed the above-mentioned
complaint, alleging among others, that: (1) the issuance of the writ would disrupt the status quo of the
parties and would render nugatory any decision of the respondent court favorable to the defendant; (2)

that the vessels, being instruments of a crime in criminal cases Nos. 3416 and 3417 filed with the Court of
First Instance of Palawan, the release of the vessels sans the corresponding order from the abovementioned court would deprive the same of its authority to dispose of the vessels in the criminal cases and
the Provincial Fiscal would not be able to utilize said vessels as evidence in the prosecution of said cases;
(3) that as petitioners herein were in possession of one of the vessels in point, they cannot now be
deprived of the legal custody thereof by reason of the dismissal of Civil Case No. 56701; (4) that petitioner
Fisheries Commissioner has the power to seize and detain the vessels pursuant to Section 5 of Republic Act
No. 3215 in relation to Sections 903 and 2210 of the Revised Tariff and Customs Code; (5) that respondents
herein have not exhausted administrative remedies before coming to court; (6) that the compromise
agreement approved by the Secretary of Agriculture and Natural Resources and indorsed to the Fisheries
Commissioner is never a bar to the prosecution of the crime perpetrated by the crew members of the
vessels belonging to respondent company.
And again, on October 15, 1965, herein petitioners filed their memorandum praying for the denial of the
application for preliminary mandatory injunction. On the same day, October 15, 1965, herein petitioners
filed an urgent motion to submit additional documentary evidence.
On October 18, 1965, herein petitioners, as defendants in said Civil Case No. 62799, filed their answer to
the complaint with affirmative defenses, reiterating the grounds in their opposition to the issuance of a writ
of preliminary mandatory injunction and adding that herein private respondent admitted committing the
last violation when it offered in its letter dated September 21, 1965 to the Acting Commissioner of
Fisheries, to compromise said last violation (Exh. 12, pp. 60-61, rec.).
On said day, October 18, 1965, the respondent Judge issued the challenged order granting the issuance of
the writ of preliminary mandatory injunction and issued the preliminary writ upon the filing by private
respondent of a bond of P5,000.00 for the release of the two vessels(pp. 95-102, rec.).
On October 19, 1965, herein petitioners filed a motion for reconsideration of the order issuing the
preliminary writ on October 18, 1965 on the ground, among others, that on October 18, 1965 the
Philippine Navy received from the Palawan Court of First Instance two orders dated October 2 and 4, 1965
requiring the Philippine Navy to hold the fishing boats in custody and directing that the said vessels should
not be released until further orders from the Court, and that the bond of P5,000.00 is grossly insufficient to
cover the Government's losses in case the two vessels, which are worth P495,000.00, are placed beyond
the reach of the Government, thus frustrating their forfeiture as instruments of the crime (pp. 103-109,
rec.).1wph1.t
On November 23, 1965, respondent Judge denied the said motion for reconsideration (p. 110, rec.).
WE rule that the respondent Judge of the Manila Court of First Instance acted without jurisdiction and with
grave abuse of discretion when he issued on October 18, 1965 the order directing the issuance of a writ of
preliminary mandatory injunction and when he refused to reconsider the same.
I
When the respondent Judge issued the challenged order on October 18, 1965 and the writ of preliminary
mandatory injunction pursuant thereto, the fishing vessels were already under the jurisdiction of the Court
of First Instance of Palawan by virtue of its orders of October 2 and 4, 1965, upon motion of the Provincial
Fiscal (pp. 54, 55, rec.), directing the Philippine Navy to detain (pp. 108, 109, rec.) said vessels, which are
subject to forfeiture as instruments of the crime, to be utilized as evidence in Criminal Cases Nos. 3416
and 3417 for illegal fishing pending in said court (pp. 54-55, rec.). The said vessels were seized while
engaging in prohibited fishing within the territorial waters of Palawan (pp. 45, 48,-53, rec.) and hence
within the jurisdiction of the Court of First Instance of Palawan, in obedience to the rule that "the place
where a criminal offense was committed not only determines the venue of the action but is an essential
element of jurisdiction"(Lopez vs. Paras, L-25795, Oct. 29, 1966, 18 SCRA 616, 619). The jurisdiction over
the vessels acquired by the Palawan Court of First Instance cannot be interfered with by another Court of
First Instance. The orders of October 2 and 4, 1965 by the Palawan Court of First Instance expressly direct
the Philippine Navy "to hold in custody" the two vessels and that "same should not be released without
prior order or authority from this Court" (pp. 108, 109, rec.). Only the Palawan court can order the release
of the two vessels. Not even the Secretary of Agriculture and Natural Resources nor the Fisheries
Commissioner can direct that the fishing boats be turned over to private respondent without risking
contempt of court.
The grave abuse of discretion committed by the respondent Judge was heightened by the fact that he did
not reconsider his order of October 18, 1965 after he was informed by petitioners in their motion for
reconsideration filed on October 19, 1965 that the Palawan Court of First Instance had already issued the
two orders dated October 2 and 4, 1965 directing the Philippine Navy to hold in custody the fishing boats
until further orders.

It is basic that one court cannot interfere with the judgments, orders or decrees of another court of
concurrent or coordinate jurisdiction having equal power to grant the relief sought by injunction; because if
coordinate courts were allowed to interfere with each other's judgments, decrees or injunctions, the same
would obviously lead to confusion and might seriously hinder the administration of justice (Ongsinco, etc.
vs. Tan, et al., 97 Phil. 330; PNB vs. Javellana, 92 Phil. 525; Montesa vs. Manila Cordage Company, 92 Phil.
25; Hubahib vs. Insular Drug Company, 64 Phil. 119; Hacbang, et al. vs. The Leyte Auto Bus Company, et
al., G.R. No. L-17907, May 30, 1963, 8 SCRA, 103, 107-109; NPC vs. Hon. Jesus de Vera, G.R. No. L-15763,
Dec. 22, 1961, 3 SCRA, 646, 648; Cabigao vs. del Rosario, 44 Phil. 182; Araneta & Uy vs. Commonwealth
Insurance Company, 55 OG 431; Moran, Comments on the Rules of Court, Vol. III, 1970 ed., p. 64).
As early as October 2 and 4, 1965, the two boats were already in custodia legis under the sole control of
the Palawan Court of First Instance. The Manila Court of First Instance cannot interfere with and change
that possession (Hacbang vs. Leyte Bus Co., Inc., supra; NPC vs. Hon. Jesus de Vera, supra).
It is immaterial that the vessels were then in the Philippine Navy basin in Manila; for the same in no way
impugns the jurisdiction already vested in the Palawan court, which has custody thereof through the
Philippine Navy. This is analogous to the situation in Colmenares versus Villar (L-27124, May 29, 1970, 33
SCRA 186, 188-9), wherein We ruled "where the illegal possession of firearms was committed in the town
where the Court sits, the fact that the firearms were confiscated from the accused in another town does
not affect the jurisdiction of the Court" (pp. 186, 189).
It is likewise of no moment that the herein respondents were not notified by the herein petitioners of the
seizure of the questioned vessels by the Philippine Navy, because such previous notice is not required by
law.
II
The dismissal on December 10, 1964 of the first Civil Case No. 56701 by the Court of First Instance of
Manila had the necessary effect of automatically dissolving the writ of preliminary mandatory injunction
issued therein on April 28, 1964, directing the return of fishing vessel Tony Lex VI (pp. 156-157, rec.). Such
a preliminary writ, like any other interlocutory order, cannot survive the main case of which it was but an
incident; because "an ancillary writ of preliminary injunction loses its force and effect after the dismissal of
the main petition" (National Sugar Workers' Union, etc., vs. La Carlota Sugar Central, et al., L-23569, May
25, 1972, 45 SCRA 104, 109; Lazaro vs. Mariano, 59 Phil. 6Z7, 631; Saavedra vs. Ibaez, 56 Phil. 33, 37; Hi
Caiji vs. Phil. Sugar Estate and Development Company, 50 Phil. 592, 594).1wph1.t
Moreover, the writ of preliminary injunction issued on April 28, 1964 in Civil Case No. 56701 was directed
against the detention of the vessel Tony Lex VI for violations committed prior to August 5, 1965, and
therefore cannot and does not extend to the seizure and detention of said vessel for violations on August 5
or 6, 1965, which violations were not and could not possibly be the subject-matter of said Civil Case No.
56701 which was filed on April 3, 1964 (p. 12, rec.).
III
Herein petitioners can validly direct and/or effect the seizure of the vessels of private respondent for illegal
fishing by the use of dynamite and without the requisite licenses.
Section 4 of Republic Act No. 3512 approved on March 20, 1963 empowers the Fisheries Commissioner to
carry out the provisions of the Fisheries Act, as amended, and all rules and regulations promulgated
thereunder, to make searches and seizures personally or through his duly authorized representatives in
accordance with the Rules of Court, of "explosives such as ... dynamites and the like ...; including fishery
products, fishing equipment, tackle and other things that are subject to seizure under existing fishery
laws"; and "to effectively implement the enforcement of existing fishery laws on illegal fishing."
Paragraph 5 of Section 4 of the same Republic Act 3512 likewise transferred to and vested in the Philippine
Fisheries Commission "all the powers, functions and duties heretofore exercised by the Bureau of Customs,
Philippine Navy and Philippine Constabulary over fishing vessels and fishery matters ..."
Section 12 of the Fisheries Act, otherwise known as Republic Act No. 4003, as amended, prohibits fishing
with dynamites or other explosives which is penalized by Section 76 thereof "by a fine of not less than
P1,500.00 nor more than P5,000.00, and by imprisonment for not less than one (1) year and six (6) months
nor more than five (5) years, aside from the confiscation and forfeiture of all explosives, boats, tackles,
apparel, furniture, and other apparatus used in fishing in violation of said Section 12 of this Act." Section
78 of the same Fisheries Law provides that "in case of a second offense, the vessel, together with its
tackle, apparel, furniture and stores shall be forfeited to the Government."

The second paragraph of Section 12 also provides that "the possession and/or finding, of dynamite,
blasting caps and other explosives in any fishing boat shall constitute a presumption that the said
dynamite and/or blasting caps and explosives are being used for fishing purposes in violation of this
Section, and that the possession or discovery in any fishing boat or fish caught or killed by the use of
dynamite or other explosives, under expert testimony, shall constitute a presumption that the owner, if
present in the fishing boat, or the fishing crew have been fishing with dynamite or other explosives."
(Emphasis supplied).
Under Section 78 of the Fisheries Act, as amended, any person, association or corporation fishing in deep
sea fishery without the corresponding license prescribed in Sections 17 to 22 Article V of the Fisheries Act
or any other order or regulation deriving force from its provisions, "shall be punished for each offense by a
fine of not more than P5,000.00, or imprisonment, for not more than one year, or both, in the discretion of
the Court; Provided, That in case of an association or corporation, the President or manager shall be
directly responsible for the acts of his employees or laborers if it is proven that the latter acted with his
knowledge; otherwise the responsibility shall extend only as far as fine is concerned: Provided, further,
That in the absence of a known owner of the vessel, the master, patron or person in charge of such vessel
shall be responsible for any violation of this Act: and Provided, finally, That in case of a second offense, the
vessel together with its tackle, apparel, furniture and stores shall be forfeited to the Government"
(Emphasis supplied).
Under Section 13 of Executive Order No. 389 of December 23, 1950, reorganizing the Armed Forces of the
Philippines, the Philippine Navy has the function, among others, "to assist the proper governmental
agencies in the enforcement of laws and regulations pertaining to ... fishing ..." (46 OG 5905, 5911).
Section 2210 of the Tariff and Customs Code, as amended by PD No. 34 of October 27, 1972, authorized
any official or person exercising police authority under the provisions of the Code, to search and seize any
vessel or air craft as well as any trunk, package, bag or envelope on board and to search any person on
board for any breach or violation of the customs and tariff laws.
When the Philippine Navy, upon request of the Fisheries Commissioner, apprehended on August 5 or 6,
1965 the fishing boats Tony Lex III and Tony Lex VI, otherwise known respectively as Srta. Agnes and Srta.
Winnie, these vessels were found to be without the necessary license in violation of Section 903 of the
Tariff and Customs Code and therefore subject to seizure under Section 2210 of the same Code, and
illegally fishing with explosives and without fishing license required by Sections 17 and 18 of the Fisheries
Law (pp. 46-47, rec.).1wph1.t
The operation of the fishing boat Tony Lex III was suspended pursuant to the order dated January 28, 1964
issued by the Commissioner of Fisheries pending the final determination of the case against it for illegal
fishing with explosives on January 21, 1964 (p. 34, rec.) and remained suspended until its apprehension on
August 5 or 6, 1965 (p. 46, rec.).
For illegal fishing with explosives on March 23, 1963, the renewal of the fishing boat license of Tony Lex VI
was suspended for one year from the time said boat was moored at Pier 14 at North Harbor, Manila,
without prejudice to the institution of a criminal case against its owner and/or operator, pursuant to the
order dated May 19, 1964 issued by the Commissioner of Fisheries (pp. 35-36, rec.), the motion for
reconsideration of which order was denied by the Commissioner of Fisheries in an order dated August 17,
1964 (pp. 41-42, rec.).
For illegal fishing with dynamite on March 28, 1963, the operation of Tony Lex VI was suspended by the
Commissioner of Fisheries in an order dated April 1, 1963 (p. 62, rec.).
For illegal fishing again with explosives on April 25, 1963, the fishing boat Tony Lex VI together with its
tackle, apparel, furniture and all other apparatus used in fishing was ordered confiscated and forfeited in
favor of the Government and a fine in the amount of P5,000.00 was imposed on its owners-operators,
without prejudice to the filing of the necessary criminal action, pursuant to the order of June 2, 1964 of the
Commissioner of Fisheries(pp. 37-38, rec.).
Again, for comitting the same violation on June 19, 1963, a fine in the amount of P5,000.00 was imposed
on the owners-operators of fishing boat Tony Lex VI pursuant to the order of June 4, 1964 issued by the
Commissioner of Fisheries (pp. 39-40, rec.)..
It appears, therefore, that since January 28, 1964, the fishing boat Tony Lex III was suspended from
operating and was ordered moored at Pier 14, North Harbor, Manila (pp. 34, 46-47, rec.); and that the
fishing vessel Tony Lex VI was suspended for one year from May 24, 1964 and was actually ordered
forfeited to the Government pursuant to the order of June 2, 1964 for repeated violations of Section 12 of
the Fisheries Act (pp. 37- 38. rec.).1wph1.t As a matter of fact, when apprehended on August 5 or 6,
1965, both vessels were found to be without any license or permit for coastwise trade or for fishing and

unlawfully fishing with explosives, for which reason their owners and crew were accordingly indicted by the
Provincial Fiscal of Palawan for illegal fishing with dynamite and without the requisite license (pp. 48-53,
rec.).
As heretofore intimated, the two fishing boats were apprehended on numerous occasions for fishing with
dynamite from March 28, 1963 to March 11, 1964, which violations private respondent, as owner-operator,
sought to compromise by offering to pay a fine of P21,000.00 for all said prior violations.
Such previous violations of Sections 12, 17 and 18 of the Fisheries Act committed by the two fishing boats,
Tony Lex III and Tony Lex VI, from March 28, 1963 until August 5 or 6, 1965, rendered the said vessels
subject to forfeiture under Sections 76 and 78 of the Fisheries Act, as amended.
Search and seizure without search warrant of vessels and air crafts for violations of the customs laws have
been the traditional exception to the constitutional requirement of a search warrant, because the vessel
can be quickly moved out of the locality or jurisdiction in which the search warrant must be sought before
such warrant could be secured; hence it is not practicable to require a search warrant before such search
or seizure can be constitutionally effected (Papa vs. Mago, L-27360, Feb. 28, 1968, 22 SCRA 857, 871-74;
Magoncia vs. Palacio, 80 Phil. 770, 774; Caroll vs. U.S. 267, pp. 132, 149, 158; Justice Fernando, The Bill of
Rights, 1972 ed., p. 225; Gonzales, Philippine Constitutional Law, 1966 ed., p. 300).
The same exception should apply to seizures of fishing vessels breaching our fishery laws. They are usually
equipped with powerful motors that enable them to elude pursuing ships of the Philippine Navy or Coast
Guard.
Another exception to the constitutional requirement of a search warrant for a valid search and seizure, is a
search or seizure as an incident to a lawful arrest (Alvero vs. Dizon, 76 Phil. 637; Justice Fernando, The Bill
of Rights, 1972 ed., p. 224). Under our Rules of Court, a police officer or a private individual may, without a
warrant, arrest a person (a) who has committed, is actually committing or is about to commit an offense in
his presence; (b) who is reasonably believed to have committed an offense which has been actually
committed; or (c) who is a prisoner who has escaped from confinement while serving a final judgment or
from temporary detention during the pendency of his case or while being transferred from one
confinement to another (Sec. 6, Rule 113, Revised Rules of Court). In the case at bar, the members of the
crew of the two vessels were caught in flagrante illegally fishing with dynamite and without the requisite
license. Thus their apprehension without a warrant of arrest while committing a crime is lawful.
Consequently, the seizure of the vessel, its equipment and dynamites therein was equally valid as an
incident to a lawful arrest.
The alleged compromise approved by the Secretary of Agriculture and Natural Resources on September
13, 1965 (pp. 63-64, 158-159, rec.) cannot be invoked by the respondents because the said compromise
referred to about thirty violations of the fisheries law committed by the private respondent from March 28,
1963 to March 11, 1964. The violations by the two vessels of private respondent by reason of which these
vessels were apprehended and detained by the Philippine Navy upon request of the Commissioner of
Fisheries, were committed on August 5 or 6, 1965.
Moreover, the power to compromise would exist only before a criminal prosecution is instituted; otherwise
the Department Secretary or any of his sub-alterns can render criminal prosecutions for violations of the
fisheries law a mere mockery. It is not in the public interest nor is it good policy to sustain the viewpoint
that the Department Secretary can compromise criminal cases involving public, not private, offenses after
the indictment had been instituted in court. The fishing vessels together with all their equipment and the
dynamites found therein are not only evidence of the crime of illegal fishing but also subject to forfeiture in
favor of the Government as instruments of the crime (Art. 45, Revised Penal Code, Sec. 78, Act No. 4003,
as amended). Section 80(j) of Act No. 4003, as amended, precludes such a compromise the moment the
Fisheries Commissioner decides to prosecute the criminal action in accordance with Sections 76 and 78 of
the other penal provisions of the fisheries law. Furthermore, any compromise shall be upon the
recommendation of the Fisheries Commission (Section 80[i], Act No. 4003), which did not recommend such
a compromise for the violation on August 5 or 6, 1965 of Section 12 in relation to Sections 76 and 78 of Act
No. 4003, as amended. On the contrary, the Fisheries Commissioner requested the Provincial Fiscal to
institute the criminal cases (pp. 43-45, rec.) and the Provincial Fiscal filed the corresponding informations
docketed as Criminal Cases Nos. 3416 and 3417 on September 30, 1965 against the owners and the
members of the crew of the vessels (pp. 48-53, rec.).
It should be noted that in the first indorsement dated September 13, 1965 of the Secretary of Agriculture
and Natural Resources approving the compromise fine of P21,000.00 for the various violations committed
previous to August 5 or 6, 1965 (pp. 34-42, 47, 58-64, 149-155, 158-159, rec.), the Department Secretary
"believes that the offer made by the company was an implied admission of violations of said provisions of
the Fisheries Law and regulations, ..." (pp. 63, 158, rec.). The said approval was granted after the private
respondent filed a motion for reconsideration of the indorsement dated March 5, 1965 of the Secretary of

Agriculture and Natural Resources disapproving the offer by private respondent to pay the fine by way of
compromise.
There can be no dispute that the term fishing boat (employed in the second paragraph of Section 12 of the
Fisheries Act applies to the vessels Tony Lex III and Tony Lex VI. Even private respondent refers to said
fishing boats as fishing vessels "engaged in fishing operations" or "in commercial fishing" in paragraph IV
of its complaint in Civil Case No. 62799 (p. 18, rec.), as well as in its various communications to the
Fisheries Commissioner (pp. 60-61, 65, 82, rec.).1wph1.t The two fishing vessels Tony Lex III and Tony
Lex VI likewise fall under the term vessel used in Sections 17, 76 and 78, as well as the term boats utilized
in the second paragraph of Section 76 of the Fisheries Act. They can also fall under the term fishing
equipment employed in Section 4 of Republic Act No. 3512; because a fishing equipment is never complete
and cannot be effectively used in off-shore or deep-sea fishing without the fishing boat or fishing vessel
itself. And these two vessels of private respondent certainly come under the term fishing vessels employed
in paragraph 5 of Section 4 of the same Republic Act 3512 creating the Fisheries Commission.
Hence, no useful purpose can be served in trying to distinguish between boat and vessel with reference to
Tony Lex III and Tony Lex VI. As a matter of fact, the accepted definition of vessel includes "every
description of water craft, large or small, used or capable of being used as a means of transportation on
water" (Cope versus Vallete, etc., 199 U.S. 625; U.S. vs. Holmes, 104 Fed. 884; Charles Barnes Co. vs. One
Dredge Boat, 169 Fed. 895; and Yu Con vs. Ipil, 41 Phil. 780).
The word boat in its ordinary sense, means any water craft (Monongahela River Construction, etc. vs.
Hardsaw, 77 NE 363, 365). The fishing boats Tony Lex III and Tony Lex VI are likewise vessels within the
meaning of the term vessel used in Sections 903 and 2210 of the Tariff and Customs Code.
WHEREFORE, THE PETITION IS HEREBY GRANTED AND THE ORDER OF RESPONDENT JUDGE DATED
OCTOBER 18, 1965, THE WRIT OF PRELIMINARY MANDATORY INJUNCTION ISSUED THEREUNDER AND THE
ORDER DATED NOVEMBER 23, 1965, ARE HEREBY SET ASIDE AS NULL AND VOID, WITH
G.R.No. 74869 July 6, 1988
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
IDEL AMINNUDIN y AHNI, defendant-appellant.
The Solicitor General for plaintiff-appellee.
Herminio T. Llariza counsel de-officio for defendant-appellant.
CRUZ, J.:
The accused-appellant claimed his business was selling watches but he was nonetheless arrested, tried
and found guilty of illegally transporting marijuana. The trial court, disbelieving him, held it was high time
to put him away and sentenced him to life imprisonment plus a fine of P20,000.00. 1
Idel Aminnudin was arrested on June 25, 1984, shortly after disembarking from the M/V Wilcon 9 at about
8:30 in the evening, in Iloilo City. The PC officers who were in fact waiting for him simply accosted him,
inspected his bag and finding what looked liked marijuana leaves took him to their headquarters for
investigation. The two bundles of suspect articles were confiscated from him and later taken to the NBI
laboratory for examination. When they were verified as marijuana leaves, an information for violation of
the Dangerous Drugs Act was filed against him. 2 Later, the information was amended to include Farida Ali
y Hassen, who had also been arrested with him that same evening and likewise investigated. 3 Both were
arraigned and pleaded not guilty. 4 Subsequently, the fiscal filed a motion to dismiss the charge against Ali
on the basis of a sworn statement of the arresting officers absolving her after a 'thorough investigation." 5
The motion was granted, and trial proceeded only against the accused-appellant, who was eventually
convicted . 6
According to the prosecution, the PC officers had earlier received a tip from one of their informers that the
accused-appellant was on board a vessel bound for Iloilo City and was carrying marijuana. 7 He was
Identified by name. 8 Acting on this tip, they waited for him in the evening of June 25, 1984, and
approached him as he descended from the gangplank after the informer had pointed to him. 9 They
detained him and inspected the bag he was carrying. It was found to contain three kilos of what were later
analyzed as marijuana leaves by an NBI forensic examiner, 10 who testified that she conducted
microscopic, chemical and chromatographic tests on them. On the basis of this finding, the corresponding
charge was then filed against Aminnudin.

In his defense, Aminnudin disclaimed the marijuana, averring that all he had in his bag was his clothing
consisting of a jacket, two shirts and two pairs of pants. 11 He alleged that he was arbitrarily arrested and
immediately handcuffed. His bag was confiscated without a search warrant. At the PC headquarters, he
was manhandled to force him to admit he was carrying the marijuana, the investigator hitting him with a
piece of wood in the chest and arms even as he parried the blows while he was still handcuffed. 12 He
insisted he did not even know what marijuana looked like and that his business was selling watches and
sometimes cigarettes. 13 He also argued that the marijuana he was alleged to have been carrying was not
properly Identified and could have been any of several bundles kept in the stock room of the PC
headquarters. 14
The trial court was unconvinced, noting from its own examination of the accused that he claimed to have
come to Iloilo City to sell watches but carried only two watches at the time, traveling from Jolo for that
purpose and spending P107.00 for fare, not to mention his other expenses. 15 Aminnudin testified that he
kept the two watches in a secret pocket below his belt but, strangely, they were not discovered when he
was bodily searched by the arresting officers nor were they damaged as a result of his manhandling. 16 He
also said he sold one of the watches for P400.00 and gave away the other, although the watches belonged
not to him but to his cousin, 17 to a friend whose full name he said did not even know. 18 The trial court also
rejected his allegations of maltreatment, observing that he had not sufficiently proved the injuries
sustained by him. 19
There is no justification to reverse these factual findings, considering that it was the trial judge who had
immediate access to the testimony of the witnesses and had the opportunity to weigh their credibility on
the stand. Nuances of tone or voice, meaningful pauses and hesitation, flush of face and dart of eyes,
which may reveal the truth or expose the lie, are not described in the impersonal record. But the trial judge
sees all of this, discovering for himself the truant fact amidst the falsities.
The only exception we may make in this case is the trial court's conclusion that the accused-appellant was
not really beaten up because he did not complain about it later nor did he submit to a medical
examination. That is hardly fair or realistic. It is possible Aminnudin never had that opportunity as he was
at that time under detention by the PC authorities and in fact has never been set free since he was
arrested in 1984 and up to the present. No bail has been allowed for his release.
There is one point that deserves closer examination, however, and it is Aminnudin's claim that he was
arrested and searched without warrant, making the marijuana allegedly found in his possession
inadmissible in evidence against him under the Bill of Rights. The decision did not even discuss this point.
For his part, the Solicitor General dismissed this after an all-too-short argument that the arrest of
Aminnudin was valid because it came under Rule 113, Section 6(b) of the Rules of Court on warrantless
arrests. This made the search also valid as incidental to a lawful arrest.
It is not disputed, and in fact it is admitted by the PC officers who testified for the prosecution, that they
had no warrant when they arrested Aminnudin and seized the bag he was carrying. Their only justification
was the tip they had earlier received from a reliable and regular informer who reported to them that
Aminnudin was arriving in Iloilo by boat with marijuana. Their testimony varies as to the time they received
the tip, one saying it was two days before the arrest, 20 another two weeks 21 and a third "weeks before
June 25." 22 On this matter, we may prefer the declaration of the chief of the arresting team, Lt. Cipriano
Querol, Jr., who testified as follows:
That last answer is a cavalier pronouncement, especially as it comes from a mere lieutenant of the PC. The
Supreme Court cannot countenance such a statement. This is still a government of laws and not of men.
The mandate of the Bill of Rights is clear:
Sec. 2. The right of the people to be secure in their persons, houses, papers and effects
against unreasonable searches and seizures of whatever nature and for any purpose shall be
inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause
to be determined personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized.
In the case at bar, there was no warrant of arrest or search warrant issued by a judge after personal
determination by him of the existence of probable cause. Contrary to the averments of the government,
the accused-appellant was not caught in flagrante nor was a crime about to be committed or had just been
committed to justify the warrantless arrest allowed under Rule 113 of the Rules of Court. Even expediency
could not be invoked to dispense with the obtention of the warrant as in the case of Roldan v. Arca, 24 for
example. Here it was held that vessels and aircraft are subject to warrantless searches and seizures for
violation of the customs law because these vehicles may be quickly moved out of the locality or jurisdiction
before the warrant can be secured.

The present case presented no such urgency. From the conflicting declarations of the PC witnesses, it is
clear that they had at least two days within which they could have obtained a warrant to arrest and search
Aminnudin who was coming to Iloilo on the M/V Wilcon 9. His name was known. The vehicle was Identified.
The date of its arrival was certain. And from the information they had received, they could have persuaded
a judge that there was probable cause, indeed, to justify the issuance of a warrant. Yet they did nothing.
No effort was made to comply with the law. The Bill of Rights was ignored altogether because the PC
lieutenant who was the head of the arresting team, had determined on his own authority that a "search
warrant was not necessary."
In the many cases where this Court has sustained the warrantless arrest of violators of the Dangerous
Drugs Act, it has always been shown that they were caught red-handed, as a result of what are popularly
called "buy-bust" operations of the narcotics agents. 25 Rule 113 was clearly applicable because at the
precise time of arrest the accused was in the act of selling the prohibited drug.
In the case at bar, the accused-appellant was not, at the moment of his arrest, committing a crime nor was
it shown that he was about to do so or that he had just done so. What he was doing was descending the
gangplank of the M/V Wilcon 9 and there was no outward indication that called for his arrest. To all
appearances, he was like any of the other passengers innocently disembarking from the vessel. It was only
when the informer pointed to him as the carrier of the marijuana that he suddenly became suspect and so
subject to apprehension. It was the furtive finger that triggered his arrest. The Identification by the
informer was the probable cause as determined by the officers (and not a judge) that authorized them to
pounce upon Aminnudin and immediately arrest him.
Now that we have succeeded in restoring democracy in our country after fourteen years of the despised
dictatorship, when any one could be picked up at will, detained without charges and punished without trial,
we will have only ourselves to blame if that kind of arbitrariness is allowed to return, to once more flaunt
its disdain of the Constitution and the individual liberties its Bill of Rights guarantees.
While this is not to say that the accused-appellant is innocent, for indeed his very own words suggest that
he is lying, that fact alone does not justify a finding that he is guilty. The constitutional presumption is that
he is innocent, and he will be so declared even if his defense is weak as long as the prosecution is not
strong enough to convict him.
Without the evidence of the marijuana allegedly seized from Aminnudin, the case of the prosecution must
fall. That evidence cannot be admitted, and should never have been considered by the trial court for the
simple fact is that the marijuana was seized illegally. It is the fruit of the poisonous tree, to use Justice
Holmes' felicitous phrase. The search was not an incident of a lawful arrest because there was no warrant
of arrest and the warrantless arrest did not come under the exceptions allowed by the Rules of Court.
Hence, the warrantless search was also illegal and the evidence obtained thereby was inadmissible.
The Court strongly supports the campaign of the government against drug addiction and commends the
efforts of our law-enforcement officers against those who would inflict this malediction upon our people,
especially the susceptible youth. But as demanding as this campaign may be, it cannot be more so than
the compulsions of the Bill of Rights for the protection of the liberty of every individual in the realm,
including the basest of criminals. The Constitution covers with the mantle of its protection the innocent
and the guilty alike against any manner of high- handedness from the authorities, however praiseworthy
their intentions.
Those who are supposed to enforce the law are not justified in disregarding the rights of the individual in
the name of order. Order is too high a price for the loss of liberty. As Justice Holmes, again, said, "I think it
a less evil that some criminals should escape than that the government should play an ignoble part." It is
simply not allowed in the free society to violate a law to enforce another, especially if the law violated is
the Constitution itself.
We find that with the exclusion of the illegally seized marijuana as evidence against the accused-appellant,
his guilt has not been proved beyond reasonable doubt and he must therefore be discharged on the
presumption that he is innocent.
ACCORDINGLY, the decision of the trial court is REVERSED and the accused-appellant is ACQUITTED. It is so
ordered.
G.R. No. 110995 September 5, 1994
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ALVARO SAYCON y BUQUIRAN, accused-appellant.

FELICIANO, J.:
Alvaro Saycon was charged with violating Section 15, Article III of R.A. No. 6425 as amended, the
Dangerous Drugs Act, in an information which read as follows:
That on or about the 8th day of July 1992, in the City of Dumaguete, Philippines, and within
the jurisdiction of this Honorable Court, the said accused, not being then authorized by law,
did, then and there wilfully, unlawfully and feloniously, deliver and transport[] from Manila
to Dumaguete City approximately 4 grams of methamphetam[ine] hydrochloride commonly
known as "shabu," a regulated drug.
Contrary to Sec. 15, Art. III of R.A. 6425 (Dangerous Drugs Act) as amended.

(Brackets supplied)

At arraignment, Alvaro Saycon entered a plea of not guilty.

After trial, the trial court rendered, on 15 June 1993, a judgment of conviction. The court found Saycon
guilty beyond reasonable doubt of having transported four (4) grams of metamphetamine hydrochloride
("shabu") and sentenced him to life imprisonment and to pay a fine of P20,000.00. 2
The relevant facts as found by the trial court were gleaned from the testimonies of the arresting officers
Senior Police Officers Winifredo S. Noble and Ruben Laddaran of the Narcotics Command, PNP; Police
Officer Emmanuelito C. Lajot of the Philippine Coastguard Office in Dumaguete City; and Forensic Analyst
N.G. Salinas of the PNP Crime Laboratory. The trial court summarized the facts in the following manner:
. . . that on or about 8 July 1992, at about 6:00 in the morning, the Coastguard personnel
received information from NARCOM agent Ruben Laddaran that a suspected "shabu" courier
by the name of Alvaro Saycon was on board the MV Doa Virginia, which was arriving at that
moment in Dumaguete City. Upon receipt of the information, the Coastguard chief officer
CPO Tolin, instructed them to intercept the suspect. A combined team of NARCOM agents
and Philippine Coastguard personnel consisting of CPO Tolin, a certain Miagme, and Senior
Police Officers Ruben Laddaran and Winifredo Noble of NARCOM posted themselves at the
gate of Pier 1.
The MV Doa Virginia docked at 6:00 a.m. that same morning at Pier 1 in Dumaguete City.
Alvaro Saycon alighted from the boat carrying a black bag and went through the checkpoint
manned by the Philippine Coastguard where he was identified by police officer Winifredo
Noble of NARCOM. Saycon was then invited to the Coastguard Headquarters at the Pier area.
He willingly went with them. At the headquarters, the coastguard asked Saycon to open his
bag, and the latter willingly obliged. In it were personal belongings and a maong wallet.
Inside that maong wallet, there was a Marlboro pack containing the suspected "shabu".
When police officer Winifredo Noble asked Saycon whether the Marlboro pack containing the
suspected "shabu" was his, Saycon merely bowed his head. Then Saycon, his bag and the
suspected "shabu" were brought to the NARCOM office for booking. When Alvaro Saycon was
arrested, the NARCOM agents did not have a warrant of arrest. 3
After the arrest of Saycon, the suspected drug material taken from him was brought to the PNP Crime
Laboratory in Cebu City for chemical examination.
The PNP's Forensic Analyst declared in court that she had conducted an examination of the specimens
which had been taken from appellant Saycon and submitted to the Crime Laboratory on 9 July 1992. Her
findings were, basically, that the specimens she examined weighing 4.2 grams in total, consisted of the
regulated drug methamphetamine hydrochloride, more widely known as
"shabu." 4
For his part, appellant Saycon denied ownership of the "shabu" taken from his black bag. He claimed that
upon disembarking from the ship at the pier in Dumaguete City, he was met by two (2) unfamiliar persons
who snatched his bag from him. Thereafter, he was taken to the office of the port collector, at gunpoint,
and there his bag was searched by four (4) men despite his protests. The four (4) persons were later
identified by appellant Saycon as Noble, Sixto, Edjec and Ruben Laddaran. When appellant Saycon asked
why his belongings were being searched, the four (4) answered that there was "shabu" inside his bag. After
the search of his bag, appellant continued, he was shown a small wallet purportedly taken from his black
bag which contained "shabu." Appellant Saycon was then detained at the Dumaguete City Jail. 5
In his appeal before this Court seeking reversal of the decision of the court a quo finding him guilty of the
crime charged, Saycon contends that the search of his bag was illegal because it had been made without a
search warrant and that, therefore, the "shabu" discovered during the illegal search was inadmissible in
evidence against him.

It is not disputed that the arresting officers were not armed with a search warrant or a warrant of arrest
when they searched Saycon's bag and thereafter effected his arrest.
The relevant constitutional provisions are set out in Sections 2 and 3 [2], Article III of the 1987 Constitution
which read as follows:
Sec. 2. The right of the people to be secure in their persons, houses, papers and effects
against unreasonable searches and seizures of whatever nature and for any purpose shall be
inviolable, and no search warrant or warrant of arrest shall issued except upon probable
cause to be determined personally by the judge after examination under oath or affirmation
of the complainant and the witness as he may produce, and particularly describing the place
to be searched and the persons or things to be seized.
Sec. 3. xxx xxx xxx
(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible
for any purpose in any proceeding.
The general rule, therefore, is that the search and seizure must be carried out through or with a judicial
warrant; otherwise, such search and seizure becomes "unreasonable" within the meaning of the above
constitutional provisions. 6 The evidence secured in the process of search and seizure i.e., the "fruits"
thereof will be inadmissible in evidence "for any purpose in any proceeding. 7
The requirement that a judicial warrant must be obtained prior to the carrying out of a search and seizure
is, however, not absolute. "There are certain exceptions recognized in our law," the Court noted in People
v. Barros. 8 The exception which appears most pertinent in respect of the case at bar is that relating to the
search of moving vehicles. 9 In People v. Barros, the Court said:
Peace officers may lawfully conduct searches of moving vehicles automobiles, trucks, etc.
without need of a warrant, it not being practicable to secure a judicial warrant before
searching a vehicle, since such vehicle can be quickly moved out of the locality or
jurisdiction in which the warrant may be sought. (People v. Bagista, supra; People v. Lo Ho
Wing, supra) In carrying out warrantless searches of moving vehicles, however, peace
officers are limited to routine checks, that is, the vehicles are neither really searched nor
their occupants subjected to physical or body searches, the examination of the vehicles
being limited to visual inspection. In Valmonte v. De Villa (178 SCRA 211 [1989]), the Court
stated:
[N]ot all searches and seizures are prohibited. Those which are reasonable are
not forbidden. A reasonable search is not to be determined by any fixed
formula but is to be resolved according to the facts of each case.
Where, for example, the officer merely draws aside the curtain of a vacant
vehicle which is parked on the public fair grounds, or simply looks into a
vehicle, or flashes a light therein, these do not constitute unreasonable
search. (Citations omitted)
When, however, a vehicle is stopped and subjected to an extensive search, such a
warrantless search would be constitutionally permissible only if the officers conducting the
search have reasonable or probable cause to believe, before the search, that either the
motorist is a law-offender or the contents or cargo of the vehicle are or have been
instruments or the subject matter or the proceeds of some criminal offense. (People v.
Bagista, supra; Valmonte v. de Villa, 185 SCRA 665 [1990]).
While the analogy is perhaps not perfect, we consider that appellant Saycon stands in the same situation
as the driver or passenger of a motor vehicle that is stopped by police authorities and subjected to an
extensive search. In this situation, the warrantless search and arrest of appellant Saycon would be
constitutionally permissible only if the officer conducting the search had reasonable or probable cause to
believe, before the search, that Saycon who had just disembarked from the MV Doa Virginia upon arrival
of that vessel at 6:00 a.m. of 8 July 1992 at Pier I of Dumaguete city, was violating some law or that the
contents of his luggage included some instrument or the subjects matter or the proceeds of some criminal
offense.
It is important to note that unlike in the case of crimes like, e.g., homicide, murder, physical injuries,
robbery or rape which by their nature involve physical, optically perceptible, overt acts, the offense of
possessing or delivering or transporting some prohibited or regulated drug is customarily carried out
without any external signs or indicia visible to police officers and the rest of the outside world. Drug

"pushers" or couriers do not customarily go about their enterprise or trade with some external visible sign
advertising the fact that they are carrying or distributing or transporting prohibited drugs. Thus, the
application of the rules in Section 5 (a) and (b), Rule 133 of the Rules of Court needs to take that
circumstance into account. The Court has had to resolve the question of valid or invalid warrantless arrest
or warrantless search or seizure in such cases by determining the presence or absence of a reasonable or
probable cause, before the search and arrest, that led the police authorities to believe that such a felony
(possessing or transporting or delivering prohibited drugs) was then in progress. In Barros, the Court listed
the kinds of causes which have been characterized as probable or reasonable cause supporting the legality
and validity of a warrantless search and a warrantless arrest in cases of this type:
This Court has in the past found probable cause to conduct without a judicial warrant an
extensive search of moving vehicles in situations where (1) there had emanated from a
package the distinctive smell of marijuana (People v. Claudio, 160 SCRA 646 [1988]); (2)
agents of the Narcotics Command ("Narcom") of the Philippine National Police ("PNP") had
received a confidential report from informers that a sizeable volume of marijuana would be
transported along the route where the search was conducted (People v. Maspil, 188 SCRA
751 [1990]); (3) Narcom agents were informed or "tipped off" by an undercover "deep
penetration" agent that prohibited drugs would be brought into the country on a particular
airline flight on a given date (People v. Lo Ho Wing, supra); (4) Narcom agents had received
information that a Caucasian coming from Sagada, Mountain Province, had in his possession
prohibited drugs and when the Narcom agents confronted the accused Caucasian, because
of as conspicuous bulge in this waistline, he failed to present his passport and other
identification papers when requested to do so (People v. Malmstedt, 198 SCRA 401 [1991]);
and (5) Narcom agents had received confidential information that a woman having the same
physical appearance as that of the accused would be transporting marijuana (People v.
Bagista, supra.).
Close examination of the record of the case at bar shows that there did exist reasonable or probable cause
to believe that appellant Alvaro Saycon would be carrying or transporting prohibited drugs upon arriving in
Dumaguete City on the MV Doa Virginia on 8 July 1992. This probable cause in fact consisted of two (2)
parts. Firstly, Senior Police Officer Winifredo Noble had testified in court that the NARCOM Agents had,
approximately three (3) weeks before 8 July 1992, conducted a test-buy which confirmed that appellant
Saycon was indeed engaged in transporting and selling "shabu." The police authorities did not, on that
occasion, arrest Alvaro Saycon, but what should be noted is that the identity of Saycon as a drug courier or
drug distributor was established in the minds of the police authorities. 10 Secondly, the arresting officers
testified that they had received confidential information that very early morning of 8 July 1992, Alvaro
Saycon would probably be on board the MV Doa Virginia which was scheduled to arrive in Dumaguete
City at 6:00 a.m. on 8 July 1992, probably carrying "shabu" with him.
In respect of the first element of the probable cause here involved, the testimony of Police Officer
Winifredo Noble had not been denied or rebutted by the defense; as it happened, Officer Noble was not
even cross-examined on this point by defense counsel.
In respect of the second element of the probable cause here involved, appellant Saycon contended that
the testimonies of the prosecution witnesses showed that the NARCOM Agents knew three (3) weeks
before 8 July 1992 that the MV Doa Virginia would be arriving and that the would probably be on board
that vessel. It was argued by Saycon that the police authorities should have procured, and had the time to
procure, the necessary judicial warrants for search and arrest. Saycon also sought to underscore a
supposed confusion in the testimonies of NARCOM Officer Winifredo Noble and Coastguard Officer Lajot
relating to who, as between the NARCOM agent and the Coastguard elements, had informed the other that
appellant would probably be arriving on board the MV Doa Virginia. The relevant portion of NARCOM
Agent Winifredo Noble's testimony includes the following:
Q: Despite the lapse of three (3) weeks, more or less, from acquiring
knowledge through this informant, did you not secure the necessary search
warrant and warrant of arrest on the effect(s) and person of the subject Alvaro
Saycon?
A: All the time we were only informed by the Coastguard that this certain
fellow in the name of Alvaro Saycon is travelling through and through from
Manila to Dumaguete will be carrying shabu from Manila to Dumaguete and
we could not ascertain (with) the time when he will be at the pier area.
Q: You have not answered my question. My question is: Despite the lapse of
more than three (3) weeks upon being informed by your informer that this
Alvaro Saycon, the accused in this case, has been a courier from time to time
of prohibited drugs, did you not bother to secure the necessary warrant:
search as well as the arrest?

A: As I said earlier, we could not obtain the necessary search warrant to that
effect because we do not know or ascertain when Alvaro Saycon will arrive
[from] Manila. On that particular morning, we were informed by the
Coastguard that Doa Virginia would be arriving and they told us that
probably this suspect will be among the passengers, so you better come over
and (to) identify the subject. 11 (Emphasis supplied)
Upon the other hand, Coastguard Police Officer Emmanuelito Lajot, Jr. testified in the following way:
Q: What time were you in your office?
A: Before 6:00 o'clock, I was there.
xxx xxx xxx
Q: While you were there, did you receive any communication?
A: Yes.
Q: What communication was that?
A: That a certain Alvaro Saycon was on board MV Doa Virginia arriving at
6:00 o'clock in the morning?
Q: Who gave you that information?
A: Ruben Laddaran(a).
Q: Who is this Ruben Laddaran?
A: NARCOM Agent.

12

(Emphasis supplied)

If there was any confusion or uncertainty in the testimonies of NARCOM Officer Noble and
Coastguard Officer Lajot, that confusion was a minor detail. It was in any case clarified by NARCOM
Officer Noble's explanation that after the NARCOM Command had received information appellant
Saycon would be transporting drugs from Manila to Dumaguete City, they advised the Coastguard
that they (the Narcotics Command) wanted to set up a checkpoint at Pier I at Dumaguete City
because appellant Saycon could be on board one of the vessels arriving in Dumaguete City. The
Coastguard in turn informed the NARCOM Officers of the arrival of the MV Doa Virginia and
assisted the NARCOM Officers in their operation that morning of 8 July 1992.
The record shows that the NARCOM Officers were uncertain as to the precise date and time appellant
Saycon would arrive from Manila; all they knew was that Saycon would be taking a boat from Manila to
Dumaguete City Pier. 13 The MV Doa Virginia docked at the Port of Pier I of Dumaguete City between 6:00
and 6:30 in the morning of 8 July 1992. Earlier on that same morning, the NARCOM Officers received more
specific information that appellant Saycon could be on board the MV Doa Virginia which was arriving that
morning. 14 Clearly, the NARCOM Agents had to act quickly but there was not enough time to obtain a
search warrant or a warrant of arrest. It was realistically not possible for either the NARCOM Agents or the
Coastguard Officers to obtain a judicial search warrant or warrant of arrest in the situation presented by
the case at
bar. 15
The Court considers, therefore, that a valid warrantless search had been conducted by the NARCOM and
Coastguard Officers of the "black bag" of appellant Saycon that morning of 8 July 1992 at the checkpoint
nearby the docking place of the MV Doa Virginia and at the office of the Coastguard at Dumaguete City. It
follows that the warrantless arrest of appellant Saycon which ensued forthwith, was also valid and lawful,
since the police had determined, he was in fact carrying or transporting "shabu." The further consequence
is that the four (4) grams of "shabu" obtained from his maong wallet found inside his black bag was
lawfully before the court a quo. We agree with the court a quo that the evidence before the latter proved
beyond reasonable doubt that appellant Saycon had been carrying with him "shabu" at the time of his
search and arrest and his guilt of the offense charged was established beyond reasonable doubt.
In view of the foregoing, the decision of the trial court dated 15 June 1993, in Criminal Case No. 10325,
should be affirmed, but the penalty properly impassable upon appellant Alvaro Saycon must be reduced to
imprisonment for an indeterminate period ranging from six (6) months of arresto mayor as minimum to six
(6) years of prision correctional as maximum, and the fine of P20,000.00 must be deleted. This reduction
of penalty is required by the provisions of Section 20, Article IV of R.A. NO. 6425, as last amended by

Section 17, of R.A. No. 7659 (effective 13 December 1993) as construed and given retroactive effect in
People v. Martin Simon (G.R. No. 93028, 29 July 1994) considering that the amount of "shabu" here
involved (four [4] grams) is obviously less than the 200 grams of "shabu" cut-off quantity established in
the amended Section 20 of the Dangerous Drugs Act.
WHEREFORE, for all the foregoing, the decision of the trial court in Criminal Case No. 10325, is hereby
AFFIRMED, with the MODIFICATIONS, however, that appellant shall suffer imprisonment for an
indeterminate period ranging from six (6) months of arresto mayor as minimum to six (6) years of prision
correctional as maximum, and that the fine of P20,000.00 shall be DELETED. No pronouncement as to
costs.
G.R. No. 83988 September 29, 1989
RICARDO C. VALMONTE AND UNION OF LAWYERS AND ADVOCATES FOR PEOPLE'S RIGHTS
(ULAP), petitioners,
vs.
GEN. RENATO DE VILLA AND NATIONAL CAPITAL REGION DISTRICT COMMAND, respondents.
PADILLA, J.:
This is a petition for prohibition with preliminary injunction and/or temporary restraining order, seeking the
declaration of checkpoints in Valenzuela, Metro Manila or elsewhere, as unconstitutional and the
dismantling and banning of the same or, in the alternative, to direct the respondents to formulate
guidelines in the implementation of checkpoints, for the protection of the people.
Petitioner Ricardo C. Valmonte sues in his capacity as citizen of the Republic, taxpayer, member of the
Integrated Bar of the Philippines (IBP), and resident of Valenzuela, Metro Manila; while petitioner Union of
Lawyers and Advocates for People's Rights (ULAP) sues in its capacity as an association whose members
are all members of the IBP.
The factual background of the case is as follows:
On 20 January 1987, the National Capital Region District Command (NCRDC) was activated pursuant to
Letter of Instruction 02/87 of the Philippine General Headquarters, AFP, with the mission of conducting
security operations within its area of responsibility and peripheral areas, for the purpose of establishing an
effective territorial defense, maintaining peace and order, and providing an atmosphere conducive to the
social, economic and political development of the National Capital Region. 1 As part of its duty to maintain
peace and order, the NCRDC installed checkpoints in various parts of Valenzuela, Metro Manila.
Petitioners aver that, because of the installation of said checkpoints, the residents of Valenzuela are
worried of being harassed and of their safety being placed at the arbitrary, capricious and whimsical
disposition of the military manning the checkpoints, considering that their cars and vehicles are being
subjected to regular searches and check-ups, especially at night or at dawn, without the benefit of a search
warrant and/or court order. Their alleged fear for their safety increased when, at dawn of 9 July 1988,
Benjamin Parpon, a supply officer of the Municipality of Valenzuela, Bulacan, was gunned down allegedly in
cold blood by the members of the NCRDC manning the checkpoint along McArthur Highway at Malinta,
Valenzuela, for ignoring and/or refusing to submit himself to the checkpoint and for continuing to speed off
inspire of warning shots fired in the air. Petitioner Valmonte also claims that, on several occasions, he had
gone thru these checkpoints where he was stopped and his car subjected to search/check-up without a
court order or search warrant.
Petitioners further contend that the said checkpoints give the respondents a blanket authority to make
searches and/or seizures without search warrant or court order in violation of the Constitution; 2 and,
instances have occurred where a citizen, while not killed, had been harassed.
Petitioners' concern for their safety and apprehension at being harassed by the military manning the
checkpoints are not sufficient grounds to declare the checkpoints as per se illegal. No proof has been
presented before the Court to show that, in the course of their routine checks, the military indeed
committed specific violations of petitioners' right against unlawful search and seizure or other rights.
In a case filed by the same petitioner organization, Union of Lawyers and Advocates for People's Right
(ULAP) vs. Integrated National Police, 3 it was held that individual petitioners who do not allege that any of
their rights were violated are not qualified to bring the action, as real parties in interest.
The constitutional right against unreasonable searches and seizures is a personal right invocable only by
those whose rights have been infringed, 4 or threatened to be infringed. What constitutes a reasonable or

unreasonable search and seizure in any particular case is purely a judicial question, determinable from a
consideration of the circumstances involved. 5
Petitioner Valmonte's general allegation to the effect that he had been stopped and searched without a
search warrant by the military manning the checkpoints, without more, i.e., without stating the details of
the incidents which amount to a violation of his right against unlawful search and seizure, is not sufficient
to enable the Court to determine whether there was a violation of Valmonte's right against unlawful search
and seizure. Not all searches and seizures are prohibited. Those which are reasonable are not forbidden. A
reasonable search is not to be determined by any fixed formula but is to be resolved according to the facts
of each case. 6
Where, for example, the officer merely draws aside the curtain of a vacant vehicle which is parked on the
public fair grounds, 7 or simply looks into a vehicle, 8 or flashes a light therein, 9 these do not constitute
unreasonable search.
The setting up of the questioned checkpoints in Valenzuela (and probably in other areas) may be
considered as a security measure to enable the NCRDC to pursue its mission of establishing effective
territorial defense and maintaining peace and order for the benefit of the public. Checkpoints may also be
regarded as measures to thwart plots to destabilize the government, in the interest of public security. In
this connection, the Court may take judicial notice of the shift to urban centers and their suburbs of the
insurgency movement, so clearly reflected in the increased killings in cities of police and military men by
NPA "sparrow units," not to mention the abundance of unlicensed firearms and the alarming rise in
lawlessness and violence in such urban centers, not all of which are reported in media, most likely brought
about by deteriorating economic conditions which all sum up to what one can rightly consider, at the
very least, as abnormal times. Between the inherent right of the state to protect its existence and promote
public welfare and an individual's right against a warrantless search which is however reasonably
conducted, the former should prevail.
True, the manning of checkpoints by the military is susceptible of abuse by the men in uniform, in the
same manner that all governmental power is susceptible of abuse. But, at the cost of occasional
inconvenience, discomfort and even irritation to the citizen, the checkpoints during these abnormal times,
when conducted within reasonable limits, are part of the price we pay for an orderly society and a peaceful
community.
Finally, on 17 July 1988, military and police checkpoints in Metro Manila were temporarily lifted and a
review and refinement of the rules in the conduct of the police and military manning the checkpoints was
ordered by the National Capital Regional Command Chief and the Metropolitan Police Director. 10
WHEREFORE, the petition is DISMISSED.
SO ORDERED.
G.R. No. 89139 August 2, 1990
ROMEO POSADAS y ZAMORA, petitioner,
vs.
THE HONORABLE COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES, respondents.
GANCAYCO, J.:
The validity of a warrantless search on the person of petitioner is put into issue in this case.
On October 16, 1986 at about 10:00 o'clock in the morning Pat. Ursicio Ungab and Pat. Umbra Umpar, both
members of the Integrated National Police (INP) of the Davao Metrodiscom assigned with the Intelligence
Task Force, were conducting a surveillance along Magallanes Street, Davao City. While they were within the
premises of the Rizal Memorial Colleges they spotted petitioner carrying a "buri" bag and they noticed him
to be acting suspiciously.
They approached the petitioner and identified themselves as members of the INP. Petitioner attempted to
flee but his attempt to get away was thwarted by the two notwithstanding his resistance.
They then checked the "buri" bag of the petitioner where they found one (1) caliber .38 Smith & Wesson
revolver with Serial No. 770196 1 two (2) rounds of live ammunition for a .38 caliber gun 2 a smoke (tear
gas) grenade, 3 and two (2) live ammunitions for a .22 caliber gun. 4 They brought the petitioner to the
police station for further investigation. In the course of the same, the petitioner was asked to show the
necessary license or authority to possess firearms and ammunitions found in his possession but he failed
to do so. He was then taken to the Davao Metrodiscom office and the prohibited articles recovered from

him were indorsed to M/Sgt. Didoy the officer then on duty. He was prosecuted for illegal possession of
firearms and ammunitions in the Regional Trial Court of Davao City wherein after a plea of not guilty and
trial on the merits a decision was rendered on October 8, 1987 finding petitioner guilty of the offense
charged as follows:
WHEREFORE, in view of all the foregoing, this Court , finds the accused guilty beyond
reasonable doubt of the offense charged.
It appearing that the accuse d was below eighteen (18) years old at the time of the
commission of the offense (Art. 68, par. 2), he is hereby sentenced to an indeterminate
penalty ranging from TEN (10) YEARS and ONE (1) DAY of prision mayor to TWELVE (12)
Years, FIVE (5) months and Eleven (11) days of Reclusion Temporal, and to pay the costs.
The firearm, ammunitions and smoke grenade are forfeited in favor of the government and
the Branch Clerk of Court is hereby directed to turn over said items to the Chief, Davao
Metrodiscom, Davao City. 5
Not satisfied therewith the petitioner interposed an appeal to the Court of Appeals wherein in due course a
decision was rendered on February 23, 1989 affirming in toto the appealed decision with costs against the
petitioner. 6
Hence, the herein petition for review, the main thrust of which is that there being no lawful arrest or search
and seizure, the items which were confiscated from the possession of the petitioner are inadmissible in
evidence against him.
The Solicitor General, in justifying the warrantless search of the buri bag then carried by the petitioner,
argues that under Section 12, Rule 136 of the Rules of Court a person lawfully arrested may be searched
for dangerous weapons or anything used as proof of a commission of an offense without a search warrant.
It is further alleged that the arrest without a warrant of the petitioner was lawful under the circumstances.
Section 5, Rule 113 of the 1985 Rules on Criminal Procedure provides as follows:
SEC. 5. Arrest without warrant; when lawful A peace officer or a private person may,
without a warrant, arrest a person:
(a) When in his presence, the person to be arrested has committed is actually committing, or
is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has personal knowledge of
facts indicating that the person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily confined while his
case is pending, or has escaped while being transferred from one confinement to another.
In cases falling under paragraphs (a) and (b) hereof, the person arrested without a warrant
shall be forthwith delivered to the nearest police station or jail, and he shall be proceeded
against in accordance with Rule 112, Section 7. (6a, 17a)
From the foregoing provision of law it is clear that an arrest without a warrant may be effected by a peace
officer or private person, among others, when in his presence the person to be arrested has committed, is
actually committing, or is attempting to commit an offense; or when an offense has in fact just been
committed, and he has personal knowledge of the facts indicating that the person arrested has committed
it.
The Solicitor General argues that when the two policemen approached the petitioner, he was actually
committing or had just committed the offense of illegal possession of firearms and ammunitions in the
presence of the police officers and consequently the search and seizure of the contraband was incidental
to the lawful arrest in accordance with Section 12, Rule 126 of the 1985 Rules on Criminal Procedure. We
disagree.
At the time the peace officers in this case identified themselves and apprehended the petitioner as he
attempted to flee they did not know that he had committed, or was actually committing the offense of
illegal possession of firearms and ammunitions. They just suspected that he was hiding something in the
buri bag. They did now know what its contents were. The said circumstances did not justify an arrest
without a warrant.

However, there are many instances where a warrant and seizure can be effected without necessarily being
preceded by an arrest, foremost of which is the "stop and search" without a search warrant at military or
police checkpoints, the constitutionality or validity of which has been upheld by this Court in Valmonte vs.
de Villa, 7 as follows:
Petitioner Valmonte's general allegation to the effect that he had been stopped and
searched without a search warrant by the military manning the checkpoints, without more,
i.e., without stating the details of the incidents which amount to a violation of his light
against unlawful search and seizure, is not sufficient to enable the Court to determine
whether there was a violation of Valmonte's right against unlawful search and seizure. Not
all searches and seizures are prohibited. Those which are reasonable are not forbidden. A
reasonable search is not to be determined by any fixed formula but is to be resolved
according to the facts of each case.
Where, for example, the officer merely draws aside the curtain of a vacant vehicle which is
parked on the public fair grounds, or simply looks into a vehicle or flashes a light therein,
these do not constitute unreasonable search.
The setting up of the questioned checkpoints in Valenzuela (and probably in other areas)
may be considered as a security measure to enable the NCRDC to pursue its mission of
establishing effective territorial defense and maintaining peace and order for the benefit of
the public. Checkpoints may also be regarded as measures to thwart plots to destabilize the
government in the interest of public security. In this connection, the Court may take judicial
notice of the shift to urban centers and their suburbs of the insurgency movement, so clearly
reflected in the increased killings in cities of police and military men by NPA "sparrow units,"
not to mention the abundance of unlicensed firearms and the alarming rise in lawlessness
and violence in such urban centers, not all of which are reported in media, most likely
brought about by deteriorating economic conditions which all sum up to what one can
rightly consider, at the very least, as abnormal times. Between the inherent right of the
state to protect its existence and promote public welfare and an individual's right against a
warrantless search which is however reasonably conducted, the former should prevail.
True, the manning of checkpoints by the military is susceptible of abuse by the men in
uniform in the same manner that all governmental power is susceptible of abuse. But, at the
cost of occasional inconvenience, discomfort and even irritation to the citizen, the
checkpoints during these abnormal times, when conducted within reasonable limits, are part
of the price we pay for an orderly society and a peaceful community. (Emphasis supplied).
Thus, as between a warrantless search and seizure conducted at military or police checkpoints and the
search thereat in the case at bar, there is no question that, indeed, the latter is more reasonable
considering that unlike in the former, it was effected on the basis of a probable cause. The probable cause
is that when the petitioner acted suspiciously and attempted to flee with the buri bag there was a probable
cause that he was concealing something illegal in the bag and it was the right and duty of the police
officers to inspect the same.
It is too much indeed to require the police officers to search the bag in the possession of the petitioner only
after they shall have obtained a search warrant for the purpose. Such an exercise may prove to be useless,
futile and much too late.
In People vs. CFI of Rizal,

this Court held as follows:

. . . In the ordinary cases where warrant is indispensably necessary, the mechanics

prescribed by the Constitution and reiterated in the Rules of Court must be followed and
satisfied. But We need not argue that there are exceptions. Thus in the extraordinary events
where warrant is not necessary to effect a valid search or seizure, or when the latter cannot
be performed except without warrant, what constitutes a reasonable or unreasonable search
or seizure becomes purely a judicial question, determinable from the uniqueness of the
circumstances involved, including the purpose of the search or seizure, the presence or
absence of probable cause, the manner in which the search and seizure was made, the place
or thing searched and the character of the articles procured.
The Court reproduces with approval the following disquisition of the Solicitor General:
The assailed search and seizure may still be justified as akin to a "stop and frisk" situation
whose object is either to determine the identity of a suspicious individual or to maintain the
status quo momentarily while the police officer seeks to obtain more information. This is
illustrated in the case of Terry vs. Ohio, 392 U.S. 1 (1968). In this case, two men repeatedly

walked past a store window and returned to a spot where they apparently conferred with a
third man. This aroused the suspicion of a police officer. To the experienced officer, the
behaviour of the men indicated that they were sizing up the store for an armed robbery.
When the police officer approached the men and asked them for their names, they mumbled
a reply. Whereupon, the officer grabbed one of them, spun him around and frisked him.
Finding a concealed weapon in one, he did the same to the other two and found another
weapon. In the prosecution for the offense of carrying a concealed weapon, the defense of
illegal search and seizure was put up. The United States Supreme Court held that "a police
officer may in appropriate circumstances and in an appropriate manner approach a person
for the purpose of investigating possible criminal behaviour even though there is no
probable cause to make an arrest." In such a situation, it is reasonable for an officer rather
than simply to shrug his shoulder and allow a crime to occur, to stop a suspicious individual
briefly in order to determine his identity or maintain the status quo while obtaining more
information. . . .
Clearly, the search in the case at bar can be sustained under the exceptions heretofore discussed, and
hence, the constitutional guarantee against unreasonable searches and seizures has not been violated.

WHEREFORE, the petition is DENIED with costs against petitioner.

SO ORDERED.
[G.R. No. 119220. September 20, 1996]
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NILO SOLAYAO accused-appellant.
DECISION
ROMERO, J.:
Accused-appellant Nilo Solayao was charged before the Regional Trial Court of Naval, Biliran, Branch 16,
with the crime of illegal possession of firearm and ammunition i[1] defined and penalized under Presidential
Decree No. 1866.
The lone prosecution witness, SPO3 Jose Nio, narrated that at about 9:00 o'clock in the evening of July 9,
1992, with CAFGU members Teofilo Llorad, Jr. and Cecilio Cenining, he went to Barangay Caulangohan,
Caibiran, Biliran. They were to conduct an intelligence patrol as required of them by their intelligence
officer to verify reports on the presence of armed persons roaming around the barangays of Caibiran. ii[2]
From Barangay Caulangohan, the team of Police Officer Nio proceeded to Barangay Onion where they met
the group of accused-appellant Nilo Solayao numbering five. The former became suspicious when they
observed that the latter were drunk and that accused-appellant himself was wearing a camouflage uniform
or a jungle suit. Accused-appellant's companions, upon seeing the government agents, fled. iii[3]
Police Officer Nio told accused-appellant not to run away and introduced himself as "PC," after which he
seized the dried coconut leaves which the latter was carrying and found wrapped in it a 49-inch long
homemade firearm locally known as "latong." When he asked accused-appellant who issued him a license
to carry said firearm or whether he was connected with the military or any intelligence group, the latter
answered that he had no permission to possess the same. Thereupon, SPO3 Nio confiscated the firearm
and turned him over to the custody of the policeman of Caibiran who subsequently investigated him and
charged him with illegal possession of firearm.iv[4]
Accused-appellant, in his defense, did not contest the confiscation of the shotgun but averred that this was
only given to him by one of his companions, Hermogenes Cenining, when it was still wrapped in coconut
leaves. He claimed that he was not aware that there was a shotgun concealed inside the coconut leaves
since they were using the coconut leaves as a torch. He further claimed that this was the third torch
handed to him after the others had been used up.v[5] Accused-appellant's claim was corroborated by one
Pedro Balano that he indeed received a torch from Hermogenes Cenining which turned out to be a shotgun
wrapped in coconut leaves.vi[6]
On August 25, 1994, the trial court found accused-appellant guilty of illegal possession of firearm under
Section 1 of Presidential Decree No. 1866 and imposed upon him the penalty of imprisonment ranging
from reclusion temporal maximum to reclusion perpetua. The trial court, having found no mitigating but
one aggravating circumstance of nighttime, sentenced accused-appellant to suffer the prison term of
reclusion perpetua with the accessory penalties provided by law.vii[7] It found that accused-appellant did
not contest the fact that SPO3 Nino confiscated the firearm from him and that he had no permit or license
to possess the same. It hardly found credible accused-appellant's submission that he was in possession of
the firearm only by accident and that upon reaching Barangay Onion, he followed four persons, namely,
Hermogenes Cenining, Antonio Sevillano, Willie Regir and Jovenito Jaro when he earlier claimed that he did
not know his companions.viii[8]
Accused-appellant comes to this Court on appeal and assigns the following errors:

"I.The trial court erred in admitting in evidence the homemade firearm.

"II.
The trial court erred in appreciating the aggravating circumstance of nighttime in the imposition of
the maximum penalty against the accused-appellant."ix[9]
This Court, in the case of People v. Lualhatix[10] ruled that in crimes involving illegal possession of firearm,
the prosecution has the burden of proving the elements thereof, viz: (a) the existence of the subject
firearm and (b) the fact that the accused who owned or possessed it does not have the corresponding
license or permit to possess the same.
In assigning the first error, accused-appellant argued that the trial court erred in admitting the subject
firearm in evidence as it was the product of an unlawful warrantless search. He maintained that the search
made on his person violated his constitutional right to be secure in his person and effects against
unreasonable searches and seizures. Not only was the search made without a warrant but it did not fall
under any of the circumstances enumerated under Section 5, Rule 113 of the 1985 Rules on Criminal
Procedure which provides, inter alia:
"A peace officer or a private person may, without a warrant, arrest a person when in his presence, the
person to be arrested has committed, is actually committing, or is attempting to commit an offense."
Hence, the search being unlawful, the homemade firearm confiscated from him is inadmissible in evidence
for being "the fruit of the poisonous tree."xi[11] As such, the prosecution's case must necessarily fail and
the accused-appellant acquitted.
Accused-appellant's arguments follow the line of reasoning in People v. Cuizon, et al.xii[12] where this Court
declared: " emphasis is to be laid on the fact that the law requires that the search be incident to a lawful
arrest, in order that the search itself may likewise be considered legal. Therefore, it is beyond cavil that a
lawful arrest must precede the search of a person and his belongings. Were a search first undertaken, then
an arrest effected based on evidence produced by the search, both such search and arrest would be
unlawful, for being contrary to law."
Under the circumstances obtaining in this case, however, accused-appellant's arguments are hardly
tenable. He and his companions' drunken actuations aroused the suspicion of SPO3 Nio's group, as well as
the fact that he himself was attired in a camouflage uniform or a jungle suit xiii[13] and that upon espying
the peace officers, his companions fled. It should be noted that the peace officers were precisely on an
intelligence mission to verify reports that armed persons were roaming around the barangays of Caibiran. xiv
[14]
The circumstances in this case are similar to those obtaining in Posadas v. Court of Appealsxv[15] where
this Court held that "at the time the peace officers identified themselves and apprehended the petitioner
as he attempted to flee, they did not know that he had committed, or was actually committing the offense
of illegal possession of firearm and ammunitions. They just suspected that he was hiding something in the
buri bag. They did not know what its contents were. The said circumstances did not justify an arrest
without a warrant."
This Court, nevertheless, ruled that the search and seizure in the Posadas case brought about by the
suspicious conduct of Posadas himself can be likened to a "stop and frisk" situation. There was a probable
cause to conduct a search even before an arrest could be made.
In the present case, after SPO3 Nino told accused-appellant not to run away, the former identified himself
as a government agent.xvi[16] The peace officers did not know that he had committed, or was actually
committing, the offense of illegal possession of firearm. Tasked with verifying the report that there were
armed men roaming around in the barangays surrounding Caibiran, their attention was understandably
drawn to the group that had aroused their suspicion. They could not have known that the object wrapped
in coconut leaves which accused-appellant was carrying hid a firearm.
As with Posadas, the case at bar constitutes an instance where a search and seizure may be effected
without first making an arrest. There was justifiable cause to "stop and frisk" accused-appellant when his
companions fled upon seeing the government agents. Under the circumstances, the government agents
could not possibly have procured a search warrant first.
Thus, there was no violation of the constitutional guarantee against unreasonable searches and seizures.
Nor was there error on the part of the trial court when it admitted the homemade firearm as evidence.
As to the question of whether or not the prosecution was able to prove the second element, that is, the
absence of a license or permit to possess the subject firearm, this Court agrees with the Office of the
Solicitor General which pointed out that the prosecution failed to prove that accused-appellant lacked the
necessary permit or license to possess the subject firearm.xvii[17]
Undoubtedly, it is the constitutional presumption of innocence that lays such burden upon the prosecution.
The absence of such license and legal authority constitutes an essential ingredient of the offense of illegal

possession of firearm, and every ingredient or essential element of an offense must be shown by the
prosecution by proof beyond reasonable doubt. xviii[18]
In People v. Tiozon,xix[19] this Court said:
"It is true that People vs. Lubo, 101 Phil. 179 and People vs. Ramos, 8 SCRA 758 could be invoked to
support the view that it is incumbent upon a person charged with illegal possession of a firearm to prove
the issuance to him of a license to possess the firearm, but we are of the considered opinion that under the
provisions of Section 2, Rule 131 of the Rules of Court which provide that in criminal cases the burden of
proof as to the offense charged lies on the prosecution and that a negative fact alleged by the prosecution
must be proven if 'it is an essential ingredient of the offense charged,' the burden of proof was with the
prosecution in this case to prove that the firearm used by appellant in commtting the offense charged was
not properly licensed.
It cannot be denied that the lack or absence of a license is an essential ingredient of the offense of illegal
possession of a firearm. The information filed against appellant in Criminal Case No. 3558 of the lower
court (now G.R. No. 27681) specifically alleged that he had no 'license or permit to possess' the .45 caliber
pistol mentioned therein. Thus is seems clear that it was the prosecution's duty not merely to allege that
negative fact but to prove it. This view is supported by similar adjudicated cases. In U.S. vs. Tria, 17 Phil.
303, the accused was charged with 'having criminally inscribed himself as a voter knowing that he had
none of the qualifications required to be a voter. It was there held that the negative fact of lack of
qualification to be a voter was an essential element of the crime charged and should be proved by the
prosecution. In another case (People vs. Quebral, 68 Phil. 564) where the accused was charged with illegal
practice of medicine because he had diagnosed, treated and prescribed for certain diseases suffered by
certain patients from whom he received monetary compensation, without having previously obtained the
proper certificate of registration from the Board of Medical Examiners, as provided in Section 770 of the
Administrative Code, this Court held that if the subject of the negative averment alike, for instance, the act
of voting without the qualifications provided by law is an essential ingredient of the offense charged, the
prosecution has the burden of proving the same, although in view of the difficulty of proving a negative
allegation, the prosecution, under such circumstance, need only establish a prima facie case from the best
evidence obtainable. In the case before Us, both appellant and the Solicitor General agree that there was
not even a prima facie case upon which to hold appellant guilty of the illegal possession of a firearm.
Former Chief Justice Moran upholds this view as follows:
'The mere fact that the adverse party has the control of the better means of proof of the fact alleged,
should not relieve the party making the averment of the burden of proving it. This is so, because a party
who alleges a fact must be assumed to have acquired some knowledge thereof, otherwise he could not
have alleged it. Familiar instance of this is the case of a person prosecuted for doing an act or carrying on
a business, such as, the sale of liquor without a license. How could the prosecution aver the want of a
license if it had acquired no knowledge of that fact? Accordingly, although proof of the existence or nonexistence of such license can, with more facility, be adduced by the defendant, it is nevertheless,
incumbent upon the party alleging the want of the license to prove the allegation. Naturally, as the subject
matter of the averment is one which lies peculiarly within the control or knowledge of the accused prima
facie evidence thereof on the part of the prosecution shall suffice to cast the onus upon him.' (6 Moran,
Comments on the Rules of Court, 1963 edition, p. 8)."
Finally, the precedents cited above have been crystallized as the present governing case law on this
question. As this Court summed up the doctrine in People v. Macagaling:xx[20]
"We cannot see how the rule can be otherwise since it is the inescapable duty of the prosecution to prove
all the ingredients of the offense as alleged against the accused in an information, which allegation must
perforce include any negative element provided by the law to integrate that offense. We have reiterated
quite recently the fundamental mandate that since the prosecution must allege all the elements of the
offense charged, then it must prove by the requisite quantum of evidence all the elements it has thus
alleged."
In the case at bar, the prosecution was only able to prove by testimonial evidence that accused-appellant
admitted before Police Officer Nio at the time that he was accosted that he did not have any authority or
license to carry the subject firearm when he was asked if he had one. xxi[21] In other words, the prosecution
relied on accused-appellant's admission to prove the second element.
Is this admission sufficient to prove beyond reasonable doubt the second element of illegal possession of
firearm which is that accused-appellant does not have the corresponding license? Corollary to the above
question is whether an admission by the accused-appellant can take the place of any evidentiary means
establishing beyond reasonable doubt the fact averred in the negative in the pleading and which forms an
essential ingredient of the crime charged.
This Court answers both questions in the negative. By its very nature, an "admission is the mere
acknowledgment of a fact or of circumstances from which guilt may be inferred, tending to incriminate the
speaker, but not sufficient of itself to establish his guilt."xxii[22] In other words, it is a "statement by
defendant of fact or facts pertinent to issues pending, in connection with proof of other facts or
circumstances, to prove guilt, but which is, of itself, insufficient to authorize conviction." xxiii[23] From the

above principles, this Court can infer that an admission in criminal cases is insufficient to prove beyond
reasonable doubt thecommission of the crime charged.
Moreover, said admission is extra-judicial in nature. As such, it does not fall under Section 4 of Rule 129 of
the Revised Rules of Court which states:
"An admission, verbal or written, made by a party in the course of the trial or other proceedings in the
same case does not require proof."
Not being a judicial admission, said statement by accused-appellant does not prove beyond reasonable
doubt the second element of illegal possession of firearm. It does not even establish a prima facie case. It
merely bolsters the case for the prosecution but does not stand as proof of the fact of absence or lack of a
license.
This Court agrees with the argument of the Solicitor General that "while the prosecution was able to
establish the fact that the subject firearm was seized by the police from the possession of appellant,
without the latter being able to present any license or permit to possess the same, such fact alone is not
conclusive proof that he was not lawfully authorized to carry such firearm. In other words, such fact does
not relieve the prosecution from its duty to establish the lack of a license or permit to carry the firearm by
clear and convincing evidence, like a certification from the government agency concerned." xxiv[24]
Putting it differently, "when a negative is averred in a pleading, or a plaintiff's case depends upon the
establishment of a negative, and the means of proving the fact are equally within the control of each party,
then the burden of proof is upon the party averring the negative."xxv[25]
In this case, a certification from the Firearms and Explosives Unit of the Philippine National Police that
accused-appellant was not a licensee of a firearm of any kind or caliber would have sufficed for the
prosecution to prove beyond reasonable doubt the second element of the crime of illegal possession of
firearm.
In view of the foregoing, this Court sees no need to discuss the second assigned error.
WHEREFORE, the assailed judgment of the court a quo is REVERSED and SET ASIDE. Accused-appellant
Nilo Solayao is hereby ACQUITTED for insufficiency of evidence and ordered immediately released unless
there are other legal grounds for his continued detention, with costs de oficio.
SO ORDERED.
[G.R. No. 123595. December 12, 1997]
SAMMY MALACAT y MANDAR, petitioner, vs. COURT OF APPEALS, and PEOPLE OF THE PHILIPPINES,
respondents.
DECISION
DAVIDE, JR., J.:
In an Informationxxvi[1] filed on 30 August 1990, in Criminal Case No. 90-86748 before the Regional Trial
Court (RTC) of Manila, Branch 5, petitioner Sammy Malacat y Mandar was charged with violating Section 3
of Presidential Decree No. 1866,xxvii[2] as follows:
That on or about August 27, 1990, in the City of Manila, Philippines, the said accused did then and there
willfully, unlawfully and knowingly keep, possess and/or acquire a hand grenade, without first securing the
necessary license and/or permit therefor from the proper authorities.
At arraignmentxxviii[3] on 9 October 1990, petitioner, assisted by counsel de oficio, entered a plea of not
guilty.
At pre-trial on 11 March 1991, petitioner admitted the existence of Exhibits A, A-1, and A-2, xxix[4] while the
prosecution admitted that the police authorities were not armed with a search warrant nor warrant of
arrest at the time they arrested petitioner. xxx[5]
At trial on the merits, the prosecution presented the following police officers as its witnesses: Rodolfo Yu,
the arresting officer; Josefino G. Serapio, the investigating officer; and Orlando Ramilo, who examined the
grenade.
Rodolfo Yu of the Western Police District, Metropolitan Police Force of the Integrated National Police, Police
Station No. 3, Quiapo, Manila, testified that on 27 August 1990, at about 6:30 p.m., in response to bomb
threats reported seven days earlier, he was on foot patrol with three other police officers (all of them in
uniform) along Quezon Boulevard, Quiapo, Manila, near the Mercury Drug store at Plaza Miranda. They
chanced upon two groups of Muslim-looking men, with each group, comprised of three to four men, posted
at opposite sides of the corner of Quezon Boulevard near the Mercury Drug Store. These men were acting
suspiciously with [t]heir eyes moving very fast.xxxi[6]

Yu and his companions positioned themselves at strategic points and observed both groups for about thirty
minutes. The police officers then approached one group of men, who then fled in different directions. As
the policemen gave chase, Yu caught up with and apprehended petitioner. Upon searching petitioner, Yu
found a fragmentation grenade tucked inside petitioners front waist line. xxxii[7] Yus companion, police
officer Rogelio Malibiran, apprehended Abdul Casan from whom a .38 caliber revolver was recovered.
Petitioner and Casan were then brought to Police Station No. 3 where Yu placed an X mark at the bottom of
the grenade and thereafter gave it to his commander.xxxiii[8]
On cross-examination, Yu declared that they conducted the foot patrol due to a report that a group of
Muslims was going to explode a grenade somewhere in the vicinity of Plaza Miranda. Yu recognized
petitioner as the previous Saturday, 25 August 1990, likewise at Plaza Miranda, Yu saw petitioner and 2
others attempt to detonate a grenade. The attempt was aborted when Yu and other policemen chased
petitioner and his companions; however, the former were unable to catch any of the latter. Yu further
admitted that petitioner and Casan were merely standing on the corner of Quezon Boulevard when Yu saw
them on 27 August 1990. Although they were not creating a commotion, since they were supposedly
acting suspiciously, Yu and his companions approached them. Yu did not issue any receipt for the grenade
he allegedly recovered from petitioner.xxxiv[9]
Josefino G. Serapio declared that at about 9:00 a.m. of 28 August 1990, petitioner and a certain Abdul
Casan were brought in by Sgt. Saquillaxxxv[10] for investigation. Forthwith, Serapio conducted the inquest of
the two suspects, informing them of their rights to remain silent and to be assisted by competent and
independent counsel. Despite Serapios advice, petitioner and Casan manifested their willingness to answer
questions even without the assistance of a lawyer. Serapio then took petitioners uncounselled confession
(Exh. E), there being no PAO lawyer available, wherein petitioner admitted possession of the grenade.
Thereafter, Serapio prepared the affidavit of arrest and booking sheet of petitioner and Casan. Later,
Serapio turned over the grenade to the Intelligence and Special Action Division (ISAD) of the Explosive
Ordnance Disposal Unit for examination.xxxvi[11]
On cross-examination, Serapio admitted that he took petitioners confession knowing it was inadmissible in
evidence.xxxvii[12]
Orlando Ramilo, a member of the Bomb Disposal Unit, whose principal duties included, among other
things, the examination of explosive devices, testified that on 22 March 1991, he received a request dated
19 March 1991 from Lt. Eduardo Cabrera and PO Diosdado Diotoy for examination of a grenade. Ramilo
then affixed an orange tag on the subject grenade detailing his name, the date and time he received the
specimen. During the preliminary examination of the grenade, he [f]ound that [the] major components
consisting of [a] high filler and fuse assembly [were] all present, and concluded that the grenade was [l]ive
and capable of exploding. On even date, he issued a certification stating his findings, a copy of which he
forwarded to Diotoy on 11 August 1991.xxxviii[13]
Petitioner was the lone defense witness. He declared that he arrived in Manila on 22 July 1990 and resided
at the Muslim Center in Quiapo, Manila. At around 6:30 in the evening of 27 August 1990, he went to Plaza
Miranda to catch a breath of fresh air. Shortly after, several policemen arrived and ordered all males to
stand aside. The policemen searched petitioner and two other men, but found nothing in their possession.
However, he was arrested with two others, brought to and detained at Precinct No. 3, where he was
accused of having shot a police officer. The officer showed the gunshot wounds he allegedly sustained and
shouted at petitioner [i]to ang tama mo sa akin. This officer then inserted the muzzle of his gun into
petitioners mouth and said, [y]ou are the one who shot me. Petitioner denied the charges and explained
that he only recently arrived in Manila. However, several other police officers mauled him, hitting him with
benches and guns. Petitioner was once again searched, but nothing was found on him. He saw the grenade
only in court when it was presented.xxxix[14]
The trial court ruled that the warrantless search and seizure of petitioner was akin to a stop and frisk,
where a warrant and seizure can be effected without necessarily being preceded by an arrest and whose
object is either to maintain the status quo momentarily while the police officer seeks to obtain more
information.xl[15] Probable cause was not required as it was not certain that a crime had been committed,
however, the situation called for an investigation, hence to require probable cause would have been
premature.xli[16] The RTC emphasized that Yu and his companions were [c]onfronted with an emergency, in
which the delay necessary to obtain a warrant, threatens the destruction of evidence xlii[17] and the officers
[h]ad to act in haste, as petitioner and his companions were acting suspiciously, considering the time,
place and reported cases of bombing. Further, petitioners group suddenly ran away in different directions
as they saw the arresting officers approach, thus [i]t is reasonable for an officer to conduct a limited
search, the purpose of which is not necessarily to discover evidence of a crime, but to allow the officer to
pursue his investigation without fear of violence.xliii[18]
The trial court then ruled that the seizure of the grenade from petitioner was incidental to a lawful arrest,
and since petitioner [l]ater voluntarily admitted such fact to the police investigator for the purpose of
bombing the Mercury Drug Store, concluded that sufficient evidence existed to establish petitioners guilt
beyond reasonable doubt.

In its decisionxliv[19] dated 10 February 1994 but promulgated on 15 February 1994, the trial court thus
found petitioner guilty of the crime of illegal possession of explosives under Section 3 of P.D. No. 1866, and
sentenced him to suffer:
[T]he penalty of not less than SEVENTEEN (17) YEARS, FOUR (4) MONTHS AND ONE (1) DAY OF RECLUSION
TEMPORAL, as minimum, and not more than THIRTY (30) YEARS OF RECLUSION PERPETUA, as maximum.
On 18 February 1994, petitioner filed a notice of appealxlv[20] indicating that he was appealing to this
Court. However, the record of the case was forwarded to the Court of Appeals which docketed it as CA-G.R.
CR No. 15988 and issued a notice to file briefs.xlvi[21]
In his Appellants Brief

xlvii

[22] filed with the Court of Appeals, petitioner asserted that:

1. THE LOWER COURT ERRED IN HOLDING THAT THE SEARCH UPON THE PERSON OF ACCUSED-APPELLANT
AND THE SEIZURE OF THE ALLEGED HANDGRENADE FROM HIM WAS AN APPROPRIATE INCIDENT TO HIS
ARREST.
2. THE LOWER COURT ERRED IN ADMITTING AS EVIDENCE AGAINST ACCUSED-APPELLANT THE
HANDGRENADE ALLEGEDLY SEIZED FROM HIM AS IT WAS A PRODUCT OF AN UNREASONABLE AND ILLEGAL
SEARCH.
In sum, petitioner argued that the warrantless arrest was invalid due to absence of any of the conditions
provided for in Section 5 of Rule 113 of the Rules of Court, citing People vs. Mengote.xlviii[23] As such, the
search was illegal, and the hand grenade seized, inadmissible in evidence.
In its Brief for the Appellee, the Office of the Solicitor General agreed with the trial court and prayed that
its decision be affirmed in toto.xlix[24]
In its decision of 24 January 1996,l[25] the Court of Appeals affirmed the trial court, noting, first, that
petitioner abandoned his original theory before the court a quo that the grenade was planted by the police
officers; and second, the factual finding of the trial court that the grenade was seized from petitioners
possession was not raised as an issue. Further, respondent court focused on the admissibility in evidence
of Exhibit D, the hand grenade seized from petitioner. Meeting the issue squarely, the Court of Appeals
ruled that the arrest was lawful on the ground that there was probable cause for the arrest as petitioner
was attempting to commit an offense, thus:
We are at a loss to understand how a man, who was in possession of a live grenade and in the company of
other suspicious character[s] with unlicensed firearm[s] lurking in Plaza Miranda at a time when political
tension ha[d] been enkindling a series of terroristic activities, [can] claim that he was not attempting to
commit an offense. We need not mention that Plaza Miranda is historically notorious for being a favorite
bomb site especially during times of political upheaval. As the mere possession of an unlicensed grenade is
by itself an offense, Malacats posture is simply too preposterous to inspire belief.
In so doing, the Court of Appeals took into account petitioners failure to rebut the testimony of the
prosecution witnesses that they received intelligence reports of a bomb threat at Plaza Miranda; the fact
that PO Yu chased petitioner two days prior to the latters arrest, or on 27 August 1990; and that petitioner
and his companions acted suspiciously, the accumulation of which was more than sufficient to convince a
reasonable man that an offense was about to be committed. Moreover, the Court of Appeals observed:
The police officers in such a volatile situation would be guilty of gross negligence and dereliction of duty,
not to mention of gross incompetence, if they [would] first wait for Malacat to hurl the grenade, and kill
several innocent persons while maiming numerous others, before arriving at what would then be an
assured but moot conclusion that there was indeed probable cause for an arrest. We are in agreement with
the lower court in saying that the probable cause in such a situation should not be the kind of proof
necessary to convict, but rather the practical considerations of everyday life on which a reasonable and
prudent mind, and not legal technicians, will ordinarily act.
Finally, the Court of Appeals held that the rule laid down in People v. Mengote, li[26] which petitioner relied
upon, was inapplicable in light of [c]rucial differences, to wit:
[In Mengote] the police officers never received any intelligence report that someone [at] the corner of a
busy street [would] be in possession of a prohibited article. Here the police officers were responding to a
[sic] public clamor to put a check on the series of terroristic bombings in the Metropolis, and, after
receiving intelligence reports about a bomb threat aimed at the vicinity of the historically notorious Plaza
Miranda, they conducted foot patrols for about seven days to observe suspicious movements in the area.
Furthermore, in Mengote, the police officers [had] no personal knowledge that the person arrested has
committed, is actually committing, or is attempting to commit an offense. Here, PO3 Yu [had] personal
knowledge of the fact that he chased Malacat in Plaza Miranda two days before he finally succeeded in
apprehending him.

Unable to accept his conviction, petitioner forthwith filed the instant petition and assigns the following
errors:
1. THE RESPONDENT COURT ERRED IN AFFIRMING THE FINDING OF THE TRIAL COURT THAT THE
WARRANTLESS ARREST OF PETITIONER WAS VALID AND LEGAL.
2. THE RESPONDENT COURT ERRED IN HOLDING THAT THE RULING IN PEOPLE VS. MENGOTE DOES NOT
FIND APPLICATION IN THE INSTANT CASE.
In support thereof, petitioner merely restates his arguments below regarding the validity of the warrantless
arrest and search, then disagrees with the finding of the Court of Appeals that he was attempting to
commit a crime, as the evidence for the prosecution merely disclosed that he was standing at the corner of
Plaza Miranda and Quezon Boulevard with his eyes moving very fast and looking at every person that
come (sic) nearer (sic) to them. Finally, petitioner points out the factual similarities between his case and
that of People v. Mengote to demonstrate that the Court of Appeals miscomprehended the latter.
In its Comment, the Office of the Solicitor General prays that we affirm the challenged decision.
For being impressed with merit, we resolved to give due course to the petition.
The challenged decision must immediately fall on jurisdictional grounds. To repeat, the penalty imposed by
the trial court was:
[N]ot less than SEVENTEEN (17) YEARS, FOUR (4) MONTHS AND ONE (1) DAY OF RECLUSION
TEMPORAL, as minimum, and not more than THIRTY (30) YEARS OF RECLUSION PERPETUA, as
maximum.
The penalty provided by Section 3 of P.D. No. 1866 upon any person who shall unlawfully possess grenades
is reclusion temporal in its maximum period to reclusion perpetua.
For purposes of determining appellate jurisdiction in criminal cases, the maximum of the penalty, and not
the minimum, is taken into account. Since the maximum of the penalty is reclusion perpetua, the appeal
therefrom should have been to us, and not the Court of Appeals, pursuant to Section 9(3) of the Judiciary
Reorganization Act of 1980 (B.P. Blg. 129),lii[27] in relation to Section 17 of the Judiciary Act of 1948, liii[28]
Section 5(2) of Article VIII of the Constitutionliv[29] and Section 3(c) of Rule 122 of the Rules of Court. lv[30]
The term life imprisonment as used in Section 9 of B.P. Blg. 129, the Judiciary Act of 1948, and Section 3 of
Rule 122 must be deemed to include reclusion perpetua in view of Section 5(2) of Article VIII of the
Constitution.
Petitioners Notice of Appeal indicated that he was appealing from the trial courts decision to this Court, yet
the trial court transmitted the record to the Court of Appeals and the latter proceeded to resolve the
appeal.
We then set aside the decision of the Court of Appeals for having been rendered without jurisdiction, and
consider the appeal as having been directly brought to us, with the petition for review as petitioners Brief
for the Appellant, the comment thereon by the Office of the Solicitor General as the Brief for the Appellee
and the memoranda of the parties as their Supplemental Briefs.
Deliberating on the foregoing pleadings, we find ourselves convinced that the prosecution failed to
establish petitioners guilt with moral certainty.
First, serious doubt surrounds the story of police officer Yu that a grenade was found in and seized from
petitioners possession. Notably, Yu did not identify, in court, the grenade he allegedly seized. According to
him, he turned it over to his commander after putting an X mark at its bottom; however, the commander
was not presented to corroborate this claim. On the other hand, the grenade presented in court and
identified by police officer Ramilo referred to what the latter received from Lt. Eduardo Cabrera and police
officer Diotoy not immediately after petitioners arrest, but nearly seven (7) months later, or on 19 March
1991; further, there was no evidence whatsoever that what Ramilo received was the very same grenade
seized from petitioner. In his testimony, Yu never declared that the grenade passed on to Ramilo was the
grenade the former confiscated from petitioner. Yu did not, and was not made to, identify the grenade
examined by Ramilo, and the latter did not claim that the grenade he examined was that seized from
petitioner. Plainly, the law enforcement authorities failed to safeguard and preserve the chain of evidence
so crucial in cases such as these.
Second, if indeed petitioner had a grenade with him, and that two days earlier he was with a group about
to detonate an explosive at Plaza Miranda, and Yu and his fellow officers chased, but failed to arrest them,
then considering that Yu and his three fellow officers were in uniform and therefore easily cognizable as
police officers, it was then unnatural and against common experience that petitioner simply stood there in
proximity to the police officers. Note that Yu observed petitioner for thirty minutes and must have been
close enough to petitioner in order to discern petitioners eyes moving very fast.

Finally, even assuming that petitioner admitted possession of the grenade during his custodial
investigation by police officer Serapio, such admission was inadmissible in evidence for it was taken in
palpable violation of Section 12(1) and (3) of Article III of the Constitution, which provide as follows:
SEC. 12 (1). Any person under investigation for the commission of an offense shall have the right to be
informed of his right to remain silent and to have competent and independent counsel preferably of his
own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights
cannot be waived except in writing and in the presence of counsel.
xxx
(3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in
evidence against him.
Serapio conducted the custodial investigation on petitioner the day following his arrest. No lawyer was
present and Serapio could not have requested a lawyer to assist petitioner as no PAO lawyer was then
available. Thus, even if petitioner consented to the investigation and waived his rights to remain silent and
to counsel, the waiver was invalid as it was not in writing, neither was it executed in the presence of
counsel.
Even granting ex gratia that petitioner was in possession of a grenade, the arrest and search of petitioner
were invalid, as will be discussed below.
The general rule as regards arrests, searches and seizures is that a warrant is needed in order to validly
effect the same.lvi[31] The Constitutional prohibition against unreasonable arrests, searches and seizures
refers to those effected without a validly issued warrant,lvii[32] subject to certain exceptions. As regards
valid warrantless arrests, these are found in Section 5, Rule 113 of the Rules of Court, which reads, in part:
Sec. 5. -- Arrest, without warrant; when lawful -- A peace officer or a private person may, without a
warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually committing, or is
attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating
that the person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped ***
A warrantless arrest under the circumstances contemplated under Section 5(a) has been denominated as
one "in flagrante delicto," while that under Section 5(b) has been described as a "hot pursuit" arrest.
Turning to valid warrantless searches, they are limited to the following: (1) customs searches; (2) search of
moving vehicles; (3) seizure of evidence in plain view; (4) consent searches; lviii[33] (5) a search incidental
to a lawful arrest;lix[34] and (6) a "stop and frisk."lx[35]
In the instant petition, the trial court validated the warrantless search as a stop and frisk with the seizure
of the grenade from the accused [as] an appropriate incident to his arrest, hence necessitating a brief
discussion on the nature of these exceptions to the warrant requirement.
At the outset, we note that the trial court confused the concepts of a "stop-and-frisk" and of a search
incidental to a lawful arrest. These two types of warrantless searches differ in terms of the requisite
quantum of proof before they may be validly effected and in their allowable scope.
In a search incidental to a lawful arrest, as the precedent arrest determines the validity of the incidental
search, the legality of the arrest is questioned in a large majority of these cases, e.g., whether an arrest
was merely used as a pretext for conducting a search.lxi[36] In this instance, the law requires that there
first be a lawful arrest before a search can be made -- the process cannot be reversed. lxii[37] At bottom,
assuming a valid arrest, the arresting officer may search the person of the arrestee and the area within
which the latter may reach for a weapon or for evidence to destroy, and seize any money or property
found which was used in the commission of the crime, or the fruit of the crime, or that which may be used
as evidence, or which might furnish the arrestee with the means of escaping or committing violence. lxiii[38]
Here, there could have been no valid in flagrante delicto or hot pursuit arrest preceding the search in light
of the lack of personal knowledge on the part of Yu, the arresting officer, or an overt physical act, on the
part of petitioner, indicating that a crime had just been committed, was being committed or was going to
be committed.
Having thus shown the invalidity of the warrantless arrest in this case, plainly, the search conducted on
petitioner could not have been one incidental to a lawful arrest.

We now proceed to the justification for and allowable scope of a "stop-and-frisk" as a "limited protective
search of outer clothing for weapons," as laid down in Terry, thus:
We merely hold today that where a police officer observes unusual conduct which leads him
reasonably to conclude in light of his experience that criminal activity may be afoot and that the
persons with whom he is dealing may be armed and presently dangerous, where in the course of
investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and
where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or
others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully
limited search of the outer clothing of such persons in an attempt to discover weapons which might be
used to assault him. Such a search is a reasonable search under the Fourth Amendment *** lxiv[39]
Other notable points of Terry are that while probable cause is not required to conduct a "stop and
frisk,"lxv[40] it nevertheless holds that mere suspicion or a hunch will not validate a "stop and frisk." A
genuine reason must exist, in light of the police officer's experience and surrounding conditions, to warrant
the belief that the person detained has weapons concealed about him. lxvi[41] Finally, a "stop-and-frisk"
serves a two-fold interest: (1) the general interest of effective crime prevention and detection, which
underlies the recognition that a police officer may, under appropriate circumstances and in an appropriate
manner, approach a person for purposes of investigating possible criminal behavior even without probable
cause; and (2) the more pressing interest of safety and self-preservation which permit the police officer to
take steps to assure himself that the person with whom he deals is not armed with a deadly weapon that
could unexpectedly and fatally be used against the police officer.
Here, here are at least three (3) reasons why the stop-and-frisk was invalid:
First, we harbor grave doubts as to Yus claim that petitioner was a member of the group which attempted
to bomb Plaza Miranda two days earlier. This claim is neither supported by any police report or record nor
corroborated by any other police officer who allegedly chased that group. Aside from impairing Yu's
credibility as a witness, this likewise diminishes the probability that a genuine reason existed so as to
arrest and search petitioner. If only to further tarnish the credibility of Yu's testimony, contrary to his claim
that petitioner and his companions had to be chased before being apprehended, the affidavit of arrest
(Exh. "A") expressly declares otherwise, i.e., upon arrival of five (5) other police officers, petitioner and his
companions were "immediately collared."
Second, there was nothing in petitioners behavior or conduct which could have reasonably elicited even
mere suspicion other than that his eyes were moving very fast an observation which leaves us incredulous
since Yu and his teammates were nowhere near petitioner and it was already 6:30 p.m., thus presumably
dusk. Petitioner and his companions were merely standing at the corner and were not creating any
commotion or trouble, as Yu explicitly declared on cross-examination:
Third, there was at all no ground, probable or otherwise, to believe that petitioner was armed with a deadly
weapon. None was visible to Yu, for as he admitted, the alleged grenade was discovered inside the front
waistline of petitioner, and from all indications as to the distance between Yu and petitioner, any telltale
bulge, assuming that petitioner was indeed hiding a grenade, could not have been visible to Yu. In fact, as
noted by the trial court:
When the policemen approached the accused and his companions, they were not yet aware that a
handgrenade was tucked inside his waistline. They did not see any bulging object in [sic] his person. lxvii[43]
What is unequivocal then in this case are blatant violations of petitioners rights solemnly guaranteed in
Sections 2 and 12(1) of Article III of the Constitution.
WHEREFORE, the challenged decision of the Seventeenth Division of the Court of Appeals in CA-G.R. CR
No. 15988 is SET ASIDE for lack of jurisdiction on the part of said Court and, on ground of reasonable
doubt, the decision of 10 February 1994 of Branch 5 of the Regional Trial Court of Manila is REVERSED and
petitioner SAMMY MALACAT y MANDAR is hereby ACQUITTED and ORDERED immediately released from
detention, unless his further detention is justified for any other lawful cause.
Costs de oficio.
SO ORDERED.
[G.R. No. 113447. October 9, 1997]
ALAIN MANALILI y DIZON, petitioner, vs. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.
DECISION
PANGANIBAN, J.:
When dealing with a rapidly unfolding and potentially criminal situation in the city streets where
unarguably there is no time to secure an arrest or a search warrant, policemen should employ limited,
flexible responses -- like stop-and-frisk -- which are graduated in relation to the amount of information they

possess, the lawmen being ever vigilant to respect and not to violate or to treat cavalierly the citizens
constitutional rights against unreasonable arrest, search and seizure.
The Case
This rule is reiterated as we resolve this petition for review on certiorari under Rule 45 of the Rules of
Court, seeking the reversal of the Decision of the Court of Appeals dated April 19, 1993 and its Resolution
dated January 20, 1994 in CA G.R. CR No. 07266, entitled People of the Philippines vs. Alain Manalili y
Dizon.
In an Information dated April 11, 1988,lxviii[1] Petitioner Alain Manalili y Dizon was charged by Assistant
Caloocan City Fiscal E. Juan R. Bautista with violation of Section 8, Article II of Republic Act No. 6425,
allegedly committed as follows:lxix[2]
That on or about the 11th day of April 1988 in Caloocan City, MM, Philippines and within the jurisdiction of
this Honorable Court, the above-named accused without any authority of law, did then and there wilfully,
unlawfully and feloniously have in his custody, possession and control crushed marijuana residue, which is
a prohibited drug and knowing the same to be such.
Contrary to Law.
Upon his arraignment on April 21, 1988, appellant pleaded not guilty to the charge. lxx[3] With the
agreement of the public prosecutor, appellant was released after filing a P10,000.00 bail bond.lxxi[4] After
trial in due course, the Regional Trial Court of Caloocan City, Branch 124, acting as a Special Criminal
Court, rendered on May 19, 1989 a decisionlxxii[5] convicting appellant of illegal possession of marijuana
residue. The dispositive portion of the decision reads:lxxiii[6]
WHEREFORE, in view of all the foregoing, this Court finds the accused ALAIN MANALILI Y DIZON guilty
beyond reasonable doubt of violation of Section 8, Article II, of Republic Act No. 6425, as amended (Illegal
Possession of Marijuana residue), and hereby snetences (sic) said accused to suffer imprisonment of SIX
(6) YEARS and ONE (1) DAY; and to pay a fine of P6,000.00; and to pay the costs.
xxxxxxxxx.
Appellant remained on provisional liberty. lxxiv[7] Atty. Benjamin Razon, counsel for the defense, filed a
Notice of Appeallxxv[8] dated May 31, 1989. On April 19, 1993, Respondent Courtlxxvi[9] promulgated its
assailed Decision, denying the appeal and affirming the trial court: lxxvii[10]
ACCORDINGLY, the decision appealed from dated May 19, 1989 is hereby AFFIRMED in all respects. Costs
against appellant.
Respondent Courtlxxviii[11] denied reconsideration via its assailed Resolution dated January 20, 1994,
disposing:
ACCORDINGLY, accused-appellants motion for reconsideration is, as is hereby DENIED.
The Facts
Version of the Prosecution
The facts, as found by the trial court, are as follows:lxxix[12]
At about 2:10 oclock in the afternoon of April 11, 1988, policemen from the Anti-Narcotics Unit of the
Kalookan City Police Station were conducting a surveillance along A. Mabini street, Kalookan City, in front
of the Kalookan City Cemetery. The policemen were Pat. Romeo Espiritu and Pat. Anger Lumabas and a
driver named Arnold Enriquez was driving a Tamaraw vehicle which was the official car of the Police Station
of Kalookan City. The surveillance was being made because of information that drug addicts were roaming
the area in front of the Kalookan City Cemetery.
Upon reaching the Kalookan City Cemetery, the policemen alighted from their vehicle. They then chanced
upon a male person in front of the cemetery who appeared high on drugs. The male person was observed
to have reddish eyes and to be walking in a swaying manner. When this male person tried to avoid the
policemen, the latter approached him and introduced themselves as police officers. The policemen then
asked the male person what he was holding in his hands. The male person tried to resist. Pat. Romeo
Espiritu asked the male person if he could see what said male person had in his hands. The latter showed
the wallet and allowed Pat. Romeo Espiritu to examine the same. Pat. Espiritu took the wallet and
examined it. He found suspected crushed marijuana residue inside. He kept the wallet and its marijuana
contents.
The male person was then brought to the Anti-Narcotics Unit of the Kalookan City Police Headquarters and
was turned over to Cpl. Wilfredo Tamondong for investigation. Pat. Espiritu also turned over to Cpl.

Tamondong the confiscated wallet and its suspected marijuana contents. The man turned out to be the
accused ALAIN MANALILI y DIZON.
Upon receipt of the confiscated suspected marijuana residue from Pat. Espiritu, Cpl. Tamondong wrapped
the same with a white sheet of paper on which he wrote Evidence A 4/11/88 Alain Manalili. The white sheet
of paper was marked as Exhibit E-3. The residue was originally wrapped in a smaller sheet of folded paper.
(Exhibit E-4).
Cpl. Tamondong next prepared a referral slip addressed to the NBI Forensic Chemistry Section requesting a
chemical analysis of the subject marijuana residue (Exhibit D). Cpl. Tamondong thereafter prepared a Joint
Affidavit of the apprehending policemen (Exhibit A). Pat. Angel Lumabas handcarried the referral slip
(Exhibit D) to the National Bureau of Investigation (NBI), including the subject marijuana residue for
chemical analysis. The signature of Pat. Lumabas appears on the left bottom corner of Exhibit D.
The Forensic Chemistry Section of the NBI received the aforesaid referral slip and the subject marijuana
residue at 7:40 oclock in the evening of April 11, 1988 as shown on the stamped portion of Exhibit D.
It was NBI Aida Pascual who conducted the microscopic and chemical examinations of the specimen which
she identified. (Exhibit E)lxxx[13] Mrs. Pascual referred to the subject specimen as crushed marijuana leaves
in her Certification dated April 11, 1988 (Exhibit F).lxxxi[14] These crushed marijuana leaves gave positive
results for marijuana, according to the Certificate.
Mrs. Pascual also conducted a chromatographic examination of the specimen. In this examination, she also
found that the crushed marijuana leaves gave positive results for marijuana. She then prepared a Final
Report of her examinations (Exhibit G).
After conducting the examinations, Ms. Pascual placed the specimen in a white letter-envelope and sealed
it. (Exhibit E). She then wrote identification notes on this letter-envelope. (Exhibit E-1).
Pat. Lumabas carried the Certification marked as Exhibit F from the NBI Forensic Chemistry Section to Cpl.
Tamondong. Upon receipt thereof, Cpl. Tamondong prepared a referral slip addressed to the City Fiscal of
Kalookan City. (Exhibit C)
On rebuttal, Pat. Espiritu testified that appellant was not riding a tricycle but was walking in front of the
cemetery when he was apprehended.lxxxii[15]
Version of the Defense
The trial court summarized the testimonies of the defense witnesses as follows: lxxxiii[16]
At about 2:00 oclock in the afternoon of April 11, 1988, the accused ALAIN MANALILI was aboard a tricycle
at A. Mabini street near the Kalookan City Cemetery on the way to his boarding house. Three policemen
ordered the driver of the tricycle to stop because the tricycle driver and his lone passenger were under the
influence of marijuana. The policemen brought the accused and the tricycle driver inside the Ford Fiera
which the policemen were riding in. The policemen then bodily searched the accused and the tricycle
driver. At this point, the accused asked the policemen why he was being searched and the policemen
replied that he (accused) was carrying marijuana. However, nothing was found on the persons of the
accused and the driver. The policemen allowed the tricycle driver to go while they brought the accused to
the police headquarters at Kalookan City where they said they would again search the accused.
On the way to the police headquarters, the accused saw a neighbor and signaled the latter to follow him.
The neighbor thus followed the accused to the Kalookan City Police Headquarters. Upon arrival thereat, the
accused was asked to remove his pants in the presence of said neighbor and another companion. The
policemen turned over the pants of the accused over a piece of bond paper trying to look for marijuana.
However, nothing was found, except for some dirt and dust. This prompted the companion of the neighbor
of the accused to tell the policemen to release the accused. The accused was led to a cell. The policemen
later told the accused that they found marijuana inside the pockets of his pants.
At about 5:00 oclock in the afternoon on the same day, the accused was brought outside the cell and was
led to the Ford Fiera. The accused was told by the policemen to call his parents in order to settle the case.
The policemen who led the accused to the Ford Fiera were Pat. Lumabas, Pat. Espiritu and Cpl. Tamondong.
Pat. Lumabas was the policeman who told the accused to call his parents. The accused did not call his
parents and he told the policemen that his parents did not have any telephone.
At about 5:30 oclock in the afternoon of the same day, the accused was brought in the office of an inquest
Fiscal. There, the accused told the Fiscal that no marijuana was found on his person but the Fiscal told the
accused not to say anything. The accused was then brought back to the Kalookan City Jail.
Loreto Medenilla, the tricycle driver who was allegedly with the accused when he and the accused were
stopped by policemen and then bodily searched on April 11, 1988, testified. He said that the policemen

found nothing either on his person or on the person of the accused when both were searched on April 11,
1988.
Roberto Abes, a neighbor of the accused, testified that he followed the accused at the Kalookan City Police
Headquarters on April 11, 1988. He said that the police searched the accused who was made to take off his
pants at the police headquarters but no marijuana was found on the body of the accused.
Appellant, who was recalled to the stand as sur-rebuttal witness, presented several pictures showing that
tricycles were allowed to ply in front of the Caloocan Cemetery. lxxxiv[17]
The Rulings of the Trial and the Appellate Courts
The trial court convicted petitioner of illegal possession of marijuana residue largely on the strength of the
arresting officers testimony. Patrolmen Espiritu and Lumabas were neutral and disinterested witnesses,
testifying only on what transpired during the performance of their duties. Substantially, they asserted that
the appellant was found to be in possession of a substance which was later identified as crushed marijuana
residue.
The trial court disbelieved appellants defense that this charge was merely trumped up, because the
appellant neither took any legal action against the allegedly erring policemen nor moved for a
reinvestigation before the city fiscal of Kalookan City.
On appeal, Respondent Court found no proof that the decision of the trial court was based on speculations,
surmises or conjectures. On the alleged serious discrepancies in the testimonies of the arresting officers,
the appellate court ruled that the said inconsistencies were insubstantial to impair the essential veracity of
the narration. It further found petitioners contention -- that he could not be convicted of illegal possession
of marijuana residue -- to be without merit, because the forensic chemist reported that what she examined
were marijuana leaves.
Issues
Petitioner assigns the following errors on the part of Respondent Court:
I
The Court of Appeals erred in upholding the findings of fact of the trial court.
II
The Court of Appeals erred in upholding the conviction of (the) accused (and) in ruling that the guilt of
the accused had been proved (beyond) reasonable doubt.
III
The Court of Appeals erred in not ruling that the inconsistencies in the testimonies of the prosecution
witnesses were material and substantial and not minor.
IV
The Court of Appeals erred in not appreciating the evidence that the accused was framed for the
purpose of extorting money.
V
The Court of Appeals erred in not acquitting the accused when the evidence presented is consistent
with both innocence and guilt.
VI
The Court of Appeals erred in admitting the evidence of the prosecution which are inadmissible in
evidence.
Restated more concisely, petitioner questions (1) the admissibility of the evidence against him, (2) the
credibility of prosecution witnesses and the rejection by the trial and the appellate courts of the defense of
extortion, and (3) the sufficiency of the prosecution evidence to sustain his conviction.
The Courts Ruling
The petition has no merit.
First Issue: Admissibility of the Evidence Seized During a Stop-and-Frisk
Petitioner protests the admission of the marijuana leaves found in his possession, contending that they
were products of an illegal search. The Solicitor General, in his Comment, dated July 5, 1994, which was
adopted as memorandum for respondent, counters that the inadmissibility of the marijuana leaves was
waived because petitioner never raised this issue in the proceedings below nor did he object to their
admissibility in evidence. He adds that, even assuming arguendo that there was no waiver, the search was
legal because it was incidental to a warrantless arrest under Section 5 (a), Rule 113 of the Rules of Court.
We disagree with petitioner and hold that the search was valid, being akin to a stop-and-frisk. In the
landmark case of Terry vs. Ohio,lxxxv[18] a stop-and-frisk was defined as the vernacular designation of the
right of a police officer to stop a citizen on the street, interrogate him, and pat him for weapon(s):

x x x (W)here a police officer observes an unusual conduct which leads him reasonably to conclude in light
of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be
armed and presently dangerous, where in the course of investigating this behavior he identified himself as
a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter
serves to dispel his reasonable fear for his own or others safety, he is entitled for the protection of himself
and others in the area to conduct a carefully limited search of the outer clothing of such persons in an
attempt to discover weapons which might be used to assault him. Such a search is a reasonable search
under the Fourth Amendment, and any weapon seized may properly be introduced in evidence against the
person from whom they were taken.lxxxvi[19]
In allowing such a search, the United States Supreme Court held that the interest of effective crime
prevention and detection allows a police officer to approach a person, in appropriate circumstances and
manner, for purposes of investigating possible criminal behavior even though there is insufficient probable
cause to make an actual arrest. This was the legitimate investigative function which Officer McFadden
discharged in that case, when he approached petitioner and his companion whom he observed to have
hovered alternately about a street corner for an extended period of time, while not waiting for anyone;
paused to stare in the same store window roughly 24 times; and conferred with a third person. It would
have been sloppy police work for an officer of 30 years experience to have failed to investigate this
behavior further.
In admitting in evidence two guns seized during the stop-and-frisk, the US Supreme Court held that what
justified the limited search was the more immediate interest of the police officer in taking steps to assure
himself that the person with whom he was dealing was not armed with a weapon that could unexpectedly
and fatally be used against him.
It did not, however, abandon the rule that the police must, whenever practicable, obtain advance judicial
approval of searches and seizures through the warrant procedure, excused only by exigent circumstances.
In Philippine jurisprudence, the general rule is that a search and seizure must be validated by a previously
secured judicial warrant; otherwise, such search and seizure is unconstitutional and subject to
challenge.lxxxvii[20] Section 2, Article III of the 1987 Constitution, gives this guarantee:
SEC. 2. The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no
search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by
the judge after examination under oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched and the persons or things to be seized.
Any evidence obtained in violation of the mentioned provision is legally inadmissible in evidence as a fruit
of the poisonous tree, falling under the exclusionary rule:
SEC. 3. x x x
(2)Any evidence obtained in violation of x x x the preceding section shall be inadmissible for any purpose
in any proceeding.
This right, however, is not absolute.lxxxviii[21] The recent case of People vs. Lacerna enumerated five
recognized exceptions to the rule against warrantless search and seizure, viz.: (1) search incidental to a
lawful arrest, (2) search of moving vehicles, (3) seizure in plain view, (4) customs search, and (5) waiver by
the accused themselves of their right against unreasonable search and seizure. lxxxix[22] In People vs.
Encinada,xc[23] the Court further explained that [i]n these cases, the search and seizure may be made only
with probable cause as the essential requirement. Although the term eludes exact definition, probable
cause for a search is, at best, defined as a reasonable ground of suspicion, supported by circumstances
sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty
of the offense with which he is charged; or the existence of such facts and circumstances which could lead
a reasonably discreet and prudent man to believe that an offense has been committed and that the
item(s), article(s) or object(s) sought in connection with said offense or subject to seizure and destruction
by law is in the place to be searched.
Stop-and-frisk has already been adopted as another exception to the general rule against a search without
a warrant. In Posadas vs. Court of Appeals ,xci[24] the Court held that there are many instances where a
search and seizure can be effected without necessarily being preceded by an arrest, one of which is stopand-frisk. In said case, members of the Integrated National Police of Davao stopped petitioner, who was
carrying a buri bag and acting suspiciously. They found inside petitioners bag one .38-cal. revolver with
two rounds of live ammunition, two live ammunitions for a .22-cal. gun and a tear gas grenade. In
upholding the legality of the search, the Court said that to require the police officers to search the bag only
after they had obtained a search warrant might prove to be useless, futile and much too late under the
circumstances. In such a situation, it was reasonable for a police officer to stop a suspicious individual
briefly in order to determine his identity or to maintain the status quo while obtaining more information,
rather than to simply shrug his shoulders and allow a crime to occur.

In the case at hand, Patrolman Espiritu and his companions observed during their surveillance that
appellant had red eyes and was wobbling like a drunk along the Caloocan City Cemetery, which according
to police information was a popular hangout of drug addicts. From his experience as a member of the AntiNarcotics Unit of the Caloocan City Police, such suspicious behavior was characteristic of drug addicts who
were high. The policemen therefore had sufficient reason to stop petitioner to investigate if he was actually
high on drugs. During such investigation, they found marijuana in petitioners possession: xcii[25]
Furthermore, we concur with the Solicitor Generals contention that petitioner effectively waived the
inadmissibility of any evidence illegally obtained when he failed to raise this issue or to object thereto
during the trial. A valid waiver of a right, more particularly of the constitutional right against unreasonable
search, requires the concurrence of the following requirements: (1) the right to be waived existed; (2) the
person waiving it had knowledge, actual or constructive, thereof; and (3) he or she had an actual intention
to relinquish the right.xciii[26] Otherwise, the Courts will indulge every reasonable presumption against
waiver of fundamental safeguards and will not deduce acquiescence from the failure to exercise this
elementary right. In the present case, however, petitioner is deemed to have waived such right for his
failure to raise its violation before the trial court. In petitions under Rule 45, as distinguished from an
ordinary appeal of criminal cases where the whole case is opened for review, the appeal is generally
limited to the errors assigned by petitioner. Issues not raised below cannot be pleaded for the first time on
appeal.xciv[27]
Second Issue: Assessment of Evidence
Petitioner also contends that the two arresting officers testimony contained polluted, irreconcilable and
unexplained contradictions which did not support petitioners conviction.
We disagree. Time and again, this Court has ruled that the trial courts assessment of the credibility of
witnesses, particularly when affirmed by the Court of Appeals as in this case, is accorded great weight and
respect, since it had the opportunity to observe their demeanor and deportment as they testified before it.
Unless substantial facts and circumstances have been overlooked or misappreciated by the trial court
which, if considered, would materially affect the result of the case, we will not countenance a departure
from this rule.xcv[28]
We concur with Respondent Courts ruling:
(e)ven assuming as contended by appellant that there had been some inconsistencies in the prosecution
witnesses testimonies, We do not find them substantial enough to impair the essential veracity of their
narration. In People vs. Avila, it was held that As long as the witnesses concur on the material points, slight
differences in their remembrance of the details, do not reflect on the essential veracity of their statements.
However, we find that, aside from the presumption of regularity in the performance of duty, the bestowal
of full credence on Pat. Espiritus testimony is justified by tangible evidence on record. Despite Pat.
Lumabas contradictory testimony, that of Espiritu is supported by the Joint Affidavit xcvi[29] signed by both
arresting policemen. The question of whether the marijuana was found inside petitioners wallet or inside a
plastic bag is immaterial, considering that petitioner did not deny possession of said substance. Failure to
present the wallet in evidence did not negate that marijuana was found in petitioners possession. This
shows that such contradiction is minor, and does not destroy Espiritus credibility. xcvii[30]
Third Issue: Sufficiency of Evidence
The elements of illegal possession of marijuana are: (a) the accused is in possession of an item or object
which is identified to be a prohibited drug; (b) such possession is not authorized by law; and (c) the
accused freely and consciously possessed the said drug.xcviii[31]
The substance found in petitioners possession was identified by NBI Forensic Chemist Aida Pascual to be
crushed marijuana leaves. Petitioners lack of authority to possess these leaves was established. His
awareness thereof was undeniable, considering that petitioner was high on drugs when stopped by the
policemen and that he resisted when asked to show and identify the thing he was holding. Such behavior
clearly shows that petitioner knew that he was holding marijuana and that it was prohibited by law.
Furthermore, like the trial and the appellate courts, we have not been given sufficient grounds to believe
the extortion angle in this case. Petitioner did not file any administrative or criminal case against the
arresting officers or present any evidence, other than his bare claim. His argument that he feared for his
life was lame and unbelievable, considering that he was released on bail and continued to be on bail as
early as April 26, 1988.xcix[32] Since then, he could have made the charge in relative safety, as he was no
longer in the custody of the police. His defense of frame-up, like alibi, is viewed by this Court with disfavor,
because it is easy to concoct and fabricate.c[33]
The Proper Penalty

The trial and the appellate courts overlooked the Indeterminate Sentence Law (Act No. 4103, as amended)
by sentencing petitioner to a straight penalty of six years and one day of imprisonment, aside from the
imposed fine of six thousand pesos. This Act requires the imposition of an indeterminate penalty:
SECTION 1. Hereafter, in imposing a prison sentence for an offense punished by the Revised Penal Code, or
its amendments, the court shall sentence the accused to an indeterminate sentence the maximum term of
which shall be that which, in view of the attending circumstances, could be properly imposed under the
rules of the said Code, and the minimum which shall be within the range of the penalty next lower to that
prescribed by the Code for the offense; and if the offense is punished by any other law, the court shall
sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the
maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the
same. (As amended by Act No. 4225.)
SEC. 2. This Act shall not apply to persons convicted of offenses punished with death penalty or lifeimprisonment; to those convicted of treason; to those convicted of misprision of treason, rebellion, sedition
or espionage; to those convicted of piracy; to those who are habitual delinquents; to those who shall have
escaped from confinement or evaded sentence; to those who having been granted conditional pardon by
the Chief Executive shall have violated the terms thereof; to those whose maximum term of imprisonment
does not exceed one year, not to those already sentenced by final judgment at the time of approval of this
Act, except as provided in Section 5 hereof. (Underscoring supplied)
The Dangerous Drugs Law, R.A. 6425, as amended by B.P. 179, imposes the following penalty for illegal
possession of marijuana:
Sec. 8. x x x x
The penalty of imprisonment ranging from six years and one day to twelve years and a fine ranging from
six thousand to twelve thousand pesos shall be imposed upon any person who, unless authorized by law,
shall possess or use Indian hemp.
Prescinding from the foregoing, the Court holds that the proper penalty is an indeterminate sentence of
imprisonment ranging from six years and one day to twelve years. ci[34]
WHEREFORE, the assailed Decision and Resolution are hereby AFFIRMED with MODIFICATION. Petitioner is
sentenced to suffer IMPRISONMENT of SIX (6) YEARS, as minimum, to TWELVE (12) YEARS, as maximum,
and to PAY a FINE of SIX THOUSAND PESOS. Costs against petitioner.
SO ORDERED.

G. R. Nos. 102009-10 July 6, 1994

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ROLANDO DE GRACIA, CHITO HENSON and JOHN DOES, accused. ROLANDO DE GRACIA, accused-appellant.
The Solicitor General for plaintiff-appellee.
Nicolas R. Ruiz, II for accused-appellant.

REGALADO, J.:
The incidents involved in this case took place at the height of the coup d' etat staged in December, 1989 by ultra-rightist
elements headed by the Reform the Armed Forces Movement-Soldiers of the Filipino People (RAM-SFP) against the
Government. At that time, various government establishments and military camps in Metro Manila were being bombarded
by the rightist group with their "tora-tora" planes. At around midnight of November 30, 1989, the 4th Marine Battalion of the
Philippine Marines occupied Villamor Air Base, while the Scout Rangers took over the Headquarters of the Philippine
Army, the Army Operations Center, and Channel 4, the government television station. Also, some elements of the
Philippine Army coming from Fort Magsaysay occupied the Greenhills Shopping Center in San Juan, Metro Manila. 1

Accused-appellant Rolando de Gracia was charged in two separate informations for illegal possession of ammunition and
explosives in furtherance of rebellion, and for attempted homicide, docketed as Criminal Cases Nos. Q-90-11755 and Q90-11756, respectively, which were tried jointly by the Regional Trial Court of Quezon City, Branch 103.
In Criminal Case No. Q-90-11755, Rolando de Gracia, Chito Henson and several John Does whose true names and
identities have not as yet been ascertained, were charged with the crime of illegal possession of ammunition and
explosives in furtherance of rebellion, penalized under Section 1, paragraph 3, of Presidential Decree No. 1866, allegedly
committed as follows:
That on or about the 5th day of DECEMBER, 1989, in QUEZON CITY, METRO MANILA, PHILIPPINES,
and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and
confederating together and mutually helping one another, and without authority of law, did then and there
willfully, unlawfully, feloniously and knowingly have in their possession, custody and control, the following
to wit:
Five (5) bundles of C-4 or dynamites
Six (6) cartoons of M-16 ammunition at 20 each
One hundred (100) bottles of MOLOTOV bombs
without first securing the necessary license and/or permit to possess the same from the proper
authorities, and armed with said dynamites, ammunition and explosives and pursuant to their conspiracy
heretofore agreed upon by them and prompted by common designs, come to an agreement and decision
to commit the crime of rebellion, by then and there participating therein and publicly taking arms against
the duly constituted authorities, for the purpose of overthrowing the Government of the Republic of the
Philippines, disrupting and jeopardizing its activities and removing from its allegiance the territory of the
Philippines or parts thereof. 2
In Criminal Case No. Q-90-11756, Rolando de Gracia, Chito Henson, Lamberto Bicus, Rodolfo Tor and several John Does
were charged with attempted homicide allegedly committed on December 1, 1989 in Quezon City upon the person of
Crispin Sagario who was shot and hit on the right thigh.
Appellant was convicted for illegal possession of firearms in furtherance of rebellion, but was acquitted of attempted
homicide.
During the arraignment, appellant pleaded not guilty to both charges. However, he admitted that he is not authorized to
possess any firearms, ammunition and/or explosive. 3 The parties likewise stipulated that there was a rebellion during the
period from November 30 up to December 9, 1989. 4
The records show that in the early morning of December 1, 1989, Maj. Efren Soria of the Intelligence Division, National
Capital Region Defense Command, was on board a brown Toyota car conducting a surveillance of the Eurocar Sales
Office located at Epifanio de los Santos Avenue in Quezon City, together with his team composed of Sgt. Crispin Sagario,
M/Sgt. Ramon Briones, S/Sgt. Henry Aquino, one S/Sgt. Simon and a Sgt. Ramos. The surveillance, which actually
started on the night of November 30, 1989 at around 10:00 P.M., was conducted pursuant to an intelligence report
received by the division that said establishment was being occupied by elements of the RAM-SFP as a communication
command post.
Sgt. Crispin Sagario, the driver of the car, parked the vehicle around ten to fifteen meters away from the Eurocar building
near P. Tuazon Street, S/Sgt. Henry Aquino had earlier alighted from the car to conduct his surveillance on foot. A crowd
was then gathered near the Eurocar office watching the on-going bombardment near Camp Aguinaldo. After a while, a
group of five men disengaged themselves from the crowd and walked towards the car of the surveillance team. At that
moment, Maj. Soria, who was then seated in front, saw the approaching group and immediately ordered Sgt. Sagario to
start the car and leave the area. As they passed by the group, then only six meters away, the latter pointed to them, drew
their guns and fired at the team, which attack resulted in the wounding of Sgt. Sagario on the right thigh. Nobody in the
surveillance team was able to retaliate because they sought cover inside the car and they were afraid that civilians or
bystanders might be caught in the cross-fire.
As a consequence, at around 6:30 A.M. of December 5, 1989, a searching team composed of F/Lt. Virgilio Babao as team
leader, M/Sgt. Lacdao, Sgt. Magallion, Sgt. Patricio Pacatang, and elements of the 16th Infantry Battalion under one Col.
delos Santos raided the Eurocar Sales Office. They were able to find and confiscate six cartons of M-16 ammunition, five
bundles of C-4 dynamites, M-shells of different calibers, and "molotov" bombs inside one of the rooms belonging to a
certain Col. Matillano which is located at the right portion of the building. Sgt. Oscar Obenia, the first one to enter the
Eurocar building, saw appellant De Gracia inside the office of Col. Matillano, holding a C-4 and suspiciously peeping
through a door. De Gracia was the only person then present inside the room. A uniform with the nametag of Col. Matillano
was also found. As a result of the raid, the team arrested appellant, as well as Soprieso Verbo and Roberto Jimena who
were janitors at the Eurocar building. They were then made to sign an inventory, written in Tagalog, of the explosives and
ammunition confiscated by the raiding team. No search warrant was secured by the raiding team because, according to
them, at that time there was so much disorder considering that the nearby Camp Aguinaldo was being mopped up by the
rebel forces and there was simultaneous firing within the vicinity of the Eurocar office, aside from the fact that the courts

were consequently closed. The group was able to confirm later that the owner of Eurocar office is a certain Mr. Gutierrez
and that appellant is supposedly a "boy" therein.
Appellant Rolando de Gracia gave another version of the incident. First, he claims that on November 30, 1989, he was in
Antipolo to help in the birthday party of Col. Matillano. He denies that he was at the Eurocar Sales Office on December 1,
1989. Second, he contends that when the raiding team arrived at the Eurocar Sales Office on December 5, 1989, he was
inside his house, a small nipa hut which is adjacent to the building. According to him, he was tasked to guard the office of
Col. Matillano which is located at the right side of the building. He denies, however, that he was inside the room of Col.
Matillano when the raiding team barged in and that he had explosives in his possession. He testified that when the military
raided the office, he was ordered to get out of his house and made to lie on the ground face down, together with "Obet"
and "Dong" who were janitors of the building. He avers that he does not know anything about the explosives and insists
that when they were asked to stand up, the explosives were already there.
Appellant stated that he visited Col. Matillano in 1987 at the stockade of the Philippine Constabulary-Integrated National
Police (PC-INP), and that he knew Matillano was detained because of the latter's involvement in the 1987 coup d' etat. In
July, 1989, appellant again went to see Matillano because he had no job. Col. Matillano then told him that he could stay in
the PC-INP stockade and do the marketing for them. From that time until his arrest at the Eurocar office, appellant worked
for Matillano.
De Gracia believes that the prosecution witnesses were moved to testify against him because "bata raw ako ni Col.
Matillano eh may atraso daw sa kanila si Col. Matillano kaya sabi nila ito na lang bata niya ang ipitin natin."
On February 22, 1991, the trial court rendered judgment 5 acquitting appellant Rolando de Gracia of attempted homicide,
but found him guilty beyond reasonable doubt of the offense of illegal possession of firearms in furtherance of rebellion
and sentenced him to serve the penalty of reclusion perpetua. Moreover, it made a recommendation that "(i)nasmuch as
Rolando de Gracia appears to be merely executing or obeying orders and pursuant to the spirit contained in the 2nd
paragraph of Art. 135, R. P. C., the court recommends that Rolando de Gracia be extended executive clemency after
serving a jail term of five (5) years of good behavior.
That judgment of conviction is now challenged before us in this appeal.
Appellant principally contends that he cannot be held guilty of illegal possession of firearms for the reason that he did not
have either physical or constructive possession thereof considering that he had no intent to possess the same; he is
neither the owner nor a tenant of the building where the ammunition and explosives were found; he was merely employed
by Col. Matillano as an errand boy; he was guarding the explosives for and in behalf of Col. Matillano; and he did not have
actual possession of the explosives. He claims that intent to possess, which is necessary before one can be convicted
under Presidential Decree No. 1866, was not present in the case at bar.
Presidential Decree No. 1866 provides as follows:
Sec. 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition or
Instruments Used or intended to be Used in the Manufacture of Firearms or Ammunition. The penalty
of reclusion temporal in its maximum period to reclusion perpetua shall be imposed upon any person who
shall unlawfully manufacture, deal in, acquire, dispose, or possess any firearms, part of firearms,
ammunition or machinery, tool or instrument used or intended to be used in the manufacture of any
firearm or ammunition.
If homicide or murder is committed with the use of an unlicensed firearm, the penalty of death shall be
imposed.
If the violation of this Section is in furtherance of, or incident to, or in connection with the crimes of
rebellion, insurrection or subversion, the penalty of death shall be imposed.
Presidential Decree No. 1866 was passed because of an upsurge of crimes vitally affecting public order and safety due to
the proliferation of illegally possessed and manufactured firearms, ammunition and explosives, and which criminal acts
have resulted in loss of human lives, damage to property and destruction of valuable resources of the country. The series
of coup d' etats unleashed in the country during the first few years of the transitional government under then President
Corazon P. Aquino attest to the ever-growing importance of laws such as Presidential Decree No. 1866 which seek to nip
in the bud and preempt the commission of any act or acts which tend to disturb public peace and order.
I. The first issue to be resolved is whether or not intent to possess is an essential element of the offense punishable under
Presidential Decree No. 1866 and, if so, whether appellant De Gracia did intend to illegally possess firearms and
ammunition.
The rule is that ownership is not an essential element of illegal possession of firearms and ammunition. What the law
requires is merely possession which includes not only actual physical possession but also constructive possession or the
subjection of the thing to one's control and management. 6 This has to be so if the manifest intent of the law is to be
effective. The same evils, the same perils to public security, which the law penalizes exist whether the unlicensed holder

of a prohibited weapon be its owner or a borrower. To accomplish the object of this law the proprietary concept of the
possession can have no bearing whatsoever. 7
But is the mere fact of physical or constructive possession sufficient to convict a person for unlawful possession of
firearms or must there be an intent to possess to constitute a violation of the law? This query assumes significance since
the offense of illegal possession of firearms is a malum prohibitum punished by a special law, 8 in which case good faith
and absence of criminal intent are not valid defenses. 9
When the crime is punished by a special law, as a rule, intent to commit the crime is not necessary. It is sufficient that the
offender has the intent to perpetrate the act prohibited by the special law. Intent to commit the crime and intent to
perpetrate the act must be distinguished. A person may not have consciously intended to commit a crime; but he did
intend to commit an act, and that act is, by the very nature of things, the crime itself. In the first (intent to commit the
crime), there must be criminal intent; in the second (intent to perpetrate the act) it is enough that the prohibited act is done
freely and consciously. 10
In the present case, a distinction should be made between criminal intent and intent to possess. While mere possession,
without criminal intent, is sufficient to convict a person for illegal possession of a firearm, it must still be shown that there
was animus possidendi or an intent to possess on the part of the accused. 11 Such intent to possess is, however, without
regard to any other criminal or felonious intent which the accused may have harbored in possessing the firearm. Criminal
intent here refers to the intention of the accused to commit an offense with the use of an unlicensed firearm. This is not
important in convicting a person under Presidential Decree No. 1866. Hence, in order that one may be found guilty of a
violation of the decree, it is sufficient that the accused had no authority or license to possess a firearm, and that he
intended to possess the same, even if such possession was made in good faith and without criminal intent.
Concomitantly, a temporary, incidental, casual, or harmless possession or control of a firearm cannot be considered a
violation of a statute prohibiting the possession of this kind of weapon, 12 such as Presidential Decree No. 1866. Thus,
although there is physical or constructive possession, for as long as the animus possidendi is absent, there is no offense
committed.
Coming now to the case before us, there is no doubt in our minds that appellant De Gracia is indeed guilty of having
intentionally possessed several firearms, explosives and ammunition without the requisite license or authority therefor.
Prosecution witness Sgt. Oscar Abenia categorically testified that he was the first one to enter the Eurocar Sales Office
when the military operatives raided the same, and he saw De Gracia standing in the room and holding the several
explosives marked in evidence as Exhibits D to D-4. 13 At first, appellant denied any knowledge about the explosives.
Then, he alternatively contended that his act of guarding the explosives for and in behalf of Col. Matillano does not
constitute illegal possession thereof because there was no intent on his part to possess the same, since he was merely
employed as an errand boy of Col. Matillano. His pretension of impersonal or indifferent material possession does not and
cannot inspire credence.
Animus possidendi is a state of mind which may be determined on a case to case basis, taking into consideration the prior
and coetaneous acts of the accused and the surrounding circumstances. What exists in the realm of thought is often
disclosed in the range of action. It is not controverted that appellant De Gracia is a former soldier, having served with the
Philippine Constabulary prior to his separation from the service for going on absence without leave
(AWOL). 14 We do not hesitate, therefore, to believe and conclude that he is familiar with and knowledgeable about the
dynamites, "molotov" bombs, and various kinds of ammunition which were confiscated by the military from his possession.
As a former soldier, it would be absurd for him not to know anything about the dangerous uses and power of these
weapons. A fortiori, he cannot feign ignorance on the import of having in his possession such a large quantity of
explosives and ammunition. Furthermore, the place where the explosives were found is not a military camp or office, nor
one where such items can ordinarily but lawfully be stored, as in a gun store, an arsenal or armory. Even an ordinarily
prudent man would be put on guard and be suspicious if he finds articles of this nature in a place intended to carry out the
business of selling cars and which has nothing to do at all, directly or indirectly, with the trade of firearms and ammunition.
On the basis of the foregoing disquisition, it is apparent, and we so hold, that appellant De Gracia actually intended to
possess the articles confiscated from his person.
II. The next question that may be asked is whether or not there was a valid search and seizure in this case. While the
matter has not been squarely put in issue, we deem it our bounden duty, in light of advertence thereto by the parties, to
delve into the legality of the warrantless search conducted by the raiding team, considering the gravity of the offense for
which herein appellant stands to be convicted and the penalty sought to be imposed.
It is admitted that the military operatives who raided the Eurocar Sales Office were not armed with a search warrant at that
time. 15 The raid was actually precipitated by intelligence reports that said office was being used as headquarters by the
RAM. 16 Prior to the raid, there was a surveillance conducted on the premises wherein the surveillance team was fired at
by a group of men coming from the Eurocar building. When the military operatives raided the place, the occupants thereof
refused to open the door despite requests for them to do so, thereby compelling the former to break into the office. 17 The
Eurocar Sales Office is obviously not a gun store and it is definitely not an armory or arsenal which are the usual
depositories for explosives and ammunition. It is primarily and solely engaged in the sale of automobiles. The presence of
an unusual quantity of high-powered firearms and explosives could not be justifiably or even colorably explained. In

addition, there was general chaos and disorder at that time because of simultaneous and intense firing within the vicinity
of the office and in the nearby Camp Aguinaldo which was under attack by rebel forces. 18 The courts in the surrounding
areas were obviously closed and, for that matter, the building and houses therein were deserted.
Under the foregoing circumstances, it is our considered opinion that the instant case falls under one of the exceptions to
the prohibition against a warrantless search. In the first place, the military operatives, taking into account the facts
obtaining in this case, had reasonable ground to believe that a crime was being committed. There was consequently more
than sufficient probable cause to warrant their action. Furthermore, under the situation then prevailing, the raiding team
had no opportunity to apply for and secure a search warrant from the courts. The trial judge himself manifested that on
December 5, 1989 when the raid was conducted, his court was closed. 19 Under such urgency and exigency of the
moment, a search warrant could lawfully be dispensed with.
The view that we here take is in consonance with our doctrinal ruling which was amply explained in People vs. Malmstedt
20
and bears reiteration:
While it is true that the NARCOM officers were not armed with a search warrant when the search was
made over the personal effects of accused, however, under the circumstances of the case, there was
sufficient probable cause for said officers to believe that accused was then and there committing a crime.
Probable cause has been defined as such facts and circumstances which would lead a reasonable,
discreet and prudent man to believe that an offense has been committed, and that the objects sought in
connection with the offense are in the place sought to be searched. The required probable cause that will
justify a warrantless search and seizure is not determined by any fixed formula but is resolved according
to the facts of each case.
Warrantless search of the personal effects of an accused has been declared by this Court as valid,
because of existence of probable cause, where the smell of marijuana emanated from a plastic bag
owned by the accused, or where the accused was acting suspiciously, and attempted to flee.
Aside from the persistent reports received by the NARCOM that vehicles coming from Sagada were
transporting marijuana and other prohibited drugs, their Commanding Officer also received information
that a Caucasian coming from Sagada on that particular day had prohibited drugs in his possession. Said
information was received by the Commanding Officer of NARCOM the very same morning that accused
came down by bus from Sagada on his way to Baguio City.
When NARCOM received the information, a few hours before the apprehension of herein accused, that a
Caucasian travelling from Sagada to Baguio City was carrying with him prohibited drugs, there was no
time to obtain a search warrant. In the Tangliben case, the police authorities conducted a surveillance at
the Victory Liner Terminal located at Bgy. San Nicolas, San Fernando, Pampanga, against persons
engaged in the traffic of dangerous drugs, based on information supplied by some informers. Accused
Tangliben who was acting suspiciously and pointed out by an informer was apprehended and searched
by the police authorities. It was held that when faced with on-the-spot information, the police officers had
to act quickly and there was no time to secure a search warrant.
It must be observed that, at first, the NARCOM officers merely conducted a routine check of the bus
(where accused was riding) and the passengers therein, and no extensive search was initially made. It
was only when one of the officers noticed a bulge on the waist of accused, during the course of the
inspection, that accused was required to present his passport. The failure of accused to present his
identification papers, when ordered to do so, only managed to arouse the suspicion of the officer that
accused was trying to hide his identity. For is it not a regular norm for an innocent man, who has nothing
to hide from the authorities, to readily present his identification papers when required to do so?
The receipt of information by NARCOM that a Caucasian coming from Sagada had prohibited drugs in his
possession, plus the suspicious failure of the accused to produce his passport, taken together as a whole,
led the NARCOM officers to reasonably believe that the accused was trying to hide something illegal from
the authorities. From these circumstances arose a probable cause which justified the warrantless search
that was made on the personal effects of the accused. In other words, the acts of the NARCOM officers in
requiring the accused to open his pouch bag and in opening one of the wrapped objects found inside said
bag (which was discovered to contain hashish) as well as the two (2) teddy bears with hashish stuffed
inside them, were prompted by accused's own attempt to hide his identity by refusing to present his
passport, and by the information received by the NARCOM that a Caucasian coming from Sagada had
prohibited drugs in his possession. To deprive the NARCOM agents of the ability and facility to act
accordingly, including, to search even without warrant, in the light of such circumstances, would be to
sanction impotence and ineffectiveness in law enforcement, to the detriment of society.
In addition, we find the principle enunciated in Umil, et al., vs. Ramos,
et al., 21 applicable, by analogy, to the present case:

The arrest of persons involved in the rebellion whether as its fighting armed elements, or for committing
non-violent acts but in furtherance of the rebellion, is more an act of capturing them in the course of an
armed conflict, to quell the rebellion, than for the purpose of immediately prosecuting them in court for a
statutory offense. The arrest, therefore, need not follow the usual procedure in the prosecution of offenses
which requires the determination by a judge of the existence of probable cause before the issuance of a
judicial warrant of arrest and the granting of bail if the offense is bailable. Obviously the absence of a
judicial warrant is no legal impediment to arresting or capturing persons committing overt acts of violence
against government forces, or any other milder acts but really in pursuance of the rebellious movement.
The arrest or capture is thus impelled by the exigencies of the situation that involves the very survival of
society and its government and duly constituted authorities. If killing and other acts of violence against the
rebels find justification in the exigencies of armed hostilities which (are) of the essence of waging a
rebellion or insurrection, most assuredly so in case of invasion, merely seizing their persons and detaining
them while any of these contingencies continues cannot be less justified.
III. As earlier stated, it was stipulated and admitted by both parties that from November 30, 1989 up to and until December
9, 1989, there was a rebellion. Ergo, our next inquiry is whether or not appellant's possession of the firearms, explosives
and ammunition seized and recovered from him was for the purpose and in furtherance of rebellion.
The trial court found accused guilty of illegal possession of firearms in furtherance of rebellion pursuant to paragraph 2 of
Article 135 of the Revised Penal Code which states that "any person merely participating or executing the command of
others in a rebellion shall suffer the penalty of prision mayor in its minimum period." The court below held that appellant
De Gracia, who had been servicing the personal needs of Col. Matillano (whose active armed opposition against the
Government, particularly at the Camelot Hotel, was well known), is guilty of the act of guarding the explosives and
"molotov" bombs for and in behalf of the latter. We accept this finding of the lower court.
The above provision of the law was, however, erroneously and improperly used by the court below as a basis in
determining the degree of liability of appellant and the penalty to be imposed on him. It must be made clear that appellant
is charged with the qualified offense of illegal possession of firearms in furtherance of rebellion under Presidential Decree
No. 1866 which, in law, is distinct from the crime of rebellion punished under Articles 134 and 135 of the Revised Penal
Code. These are two separate statutes penalizing different offenses with discrete penalties. The Revised Penal Code
treats rebellion as a crime apart from murder, homicide, arson, or other offenses, such as illegal possession of firearms,
that might conceivably be committed in the course of a rebellion. Presidential Decree No. 1866 defines and punishes, as a
specific offense, the crime of illegal possession of firearms committed in the course or as part of a rebellion. 22
As a matter of fact, in one case involving the constitutionality of Section 1 of Presidential Decree No. 1866, the Court has
explained that said provision of the law will not be invalidated by the mere fact that the same act is penalized under two
different statutes with different penalties, even if considered highly advantageous to the prosecution and onerous to the
accused. 23 It follows that, subject to the presence of the requisite elements in each case, unlawful possession of an
unlicensed firearm in furtherance of rebellion may give rise to separate prosecutions for a violation of Section 1 of
Presidential Decree No. 1866, and also a violation of Articles 134 and 135 of the Revised Penal Code on rebellion. Double
jeopardy in this case cannot be invoked because the first is an offense punished by a special law while the second is a
felony punished by the Revised Penal Code, 24 with variant elements.
It was a legal malapropism for the lower court to interject the aforestated provision of the Revised Penal Code in this
prosecution for a crime under a special law. Consequently, there is no basis for its recommendation for executive
clemency in favor of appellant De Gracia after he shall have served a jail term of five years with good behavior. In any
event, this is a matter within the exclusive prerogative of the President whose decision thereon should be insulated
against any tenuous importunity.
Withal, we are duly convinced that the firearms, explosives and ammunition confiscated from appellant De Gracia were
illegally possessed by him in furtherance of the rebellion then admittedly existing at that time. In the words of the court a
quo:
2. the nature and quantity of the items 5 bundles of C-4 dynamites, 6 cartons of M-16 ammo and 100
bottles of molotov bombs indicate that the reports received by the military that the Eurocar Sales Building
was being used by the rebels was not without basis. Those items are clearly not for one's personal
defense. They are for offensive operations. De Gracia admitted that per instruction of Col. Matillano he
went down to Eurocar Sales Building from Antipolo to stay guard there.
His manifestation of innocence of those items and what he has been guarding in that office is not credible
for: (a) he was a former military personnel; (b) at the birthday party of Col. Matillano on November 30,
1989 many soldiers and ex-soldiers were present which self-evidently discloses that De Gracia, in the
company of his boss, was still very much at home and constantly in touch with soldiers and the armed
rebellion of November 30, 1989 to December 8 or 9, 1989 was a military coup d' etat; (c) it appears that
he is the only person tasked with caretaking (sic) there in the Matillano office, which shows that he is a
highly trusted right-hand man of Col. Matillano; and (d) as heretofore discussed, De Gracia was earlier
seen with some men who fired upon a car of the AFP intelligence agents. 25

Presidential Decree No. 1866 imposes the death penalty where the illegal possession of firearms and ammunition is
committed in furtherance of rebellion. At the time the offense charged in this case was committed under the governance of
that law, the imposition of the death penalty was proscribed by the Constitution. Consequently, appellant De Gracia could
only be sentenced to serve the penalty of reclusion perpetua which was correctly meted out by the trial court, albeit with
an erroneous recommendation in connection therewith.
WHEREFORE, the impugned judgment of the trial court is hereby AFFIRMED, but its recommendation therein for
executive clemency and the supposed basis thereof are hereby DELETED, with costs against accused-appellant.
SO ORDERED.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NIGEL RICHARD GATWARD, and U AUNG WIN, accused, NIGEL
RICHARD GATWARD, accused-appellant.
DECISION
REGALADO, J.:
The accession into our statute books on December 31, 1993 of Republic Act No. 7659,cii[1] which authorized the re-imposition of the
death penalty and amended certain provisions of the Revised Penal Code and the Dangerous Drugs Act of 1972, raised the level of
expectations in the drive against criminality. As was to be expected, however, some innovations therein needed the intervention of this
Court for a judicial interpretation of amendments introduced to the dangerous drugs law.ciii[2]
The same spin-off of novelty, this time by the new provision fixing the duration of reclusion perpetua which theretofore had not been
spelled out with specificity in the Revised Penal Code, produced some conflicting constructions, more specifically on whether such
penalty is divisible or indivisible in nature. That is actually the major issue in these cases, the factual scenario and the culpability of
both accused having been.
The antecedents being undisputed, and with a careful review and assessment of the records of this case having sustained the same, we
reproduce hereunder the pertinent parts of the decision of the trial court jointly deciding the criminal cases separately filed against
each of the accused. Although only one of them, Nigel Richard Gatward, has appealed his conviction to us, for reasons hereinafter
explained we shall likewise include the disposition by the court a quo of the case against U Aung Win.
1. The lower court stated the cases against the accused, the proceedings therein and its findings thereon, as follows:
In Criminal Case No. 94-6268, the accused is charged with violating Section 4 of Republic Act No. 6425, the Dangerous Drugs Act of
1972, allegedly in this manner:
That on or about the 31st (sic) day of August 1994, in the vicinity of the Ninoy Aquino International Airport, Pasay City, x x x , the
above-named accused not being authorized by law, did then and there wilfully, unlawfully and feloniously transport heroin (2605.70
grams and 2632.0 grams) contained in separate carton envelopes with a total weight of 5237.70 grams which is legally considered as a
prohibited drug. (Information dated Sept. 14, 1994)
In Criminal Case No. 94-6269, the accused is indicted for transgressing Section 3 of the Dangerous Drugs Act of 1972, purportedly in
this way:
That on or about the 30th day of August 1994, at the arrival area of Ninoy Aquino International Airport, Pasay City, x x x, the abovenamed accused not being authorized by law, did, then and there wilfully, unlawfully and feloniously import and bring into the
Philippines 5579.80 grams of heroin which is legally considered as a prohibited drug. (Information also dated Sept. 14, 1994)
Accused Nigel Richard Gatward in Criminal Case No. 94-6268 pleaded not guilty of the charge when arraigned.
On the other hand, accused U Aung Win in Criminal Case No. 94-6269, assisted by Atty. Willy Chan of the Public Attorneys Office of
the Department of Justice, entered a plea of guilty of the crime charged upon his arraignment. Since it is a capital offense, the Court
asked searching questions to determine the voluntariness and the full comprehension by the accused of the consequences of his plea.
The accused manifested that he was entering a plea of guilty voluntarily without having been forced or intimidated into doing it. The
nature of the charge was explained to him, with emphasis that the offense carries with it the penalty of reclusion perpetua to death and
his pleading guilty of it might subject him to the penalty of death. The accused answered that he understood fully the charge against
him and the consequences of his entering a plea of guilty. The defense counsel likewise made an assurance in open court that he had
explained to U Aung Win the nature of the charge and the consequences of his pleading guilty of it.
Having been thus apprised, the accused still maintained his plea of guilty of the offense charged against him. Since the offense
admitted by him is punishable by death, the case was still set for trial for the reception of the evidence of the prosecution to prove the
guilt and the degree of culpability of the accused and that of the defense to establish mitigating circumstances.
Upon motion of the prosecution without any objection from the defense, these two cases were consolidated and tried jointly, since the
offenses charged arose from a series of related incidents and the prosecution would be presenting common evidence in both.
At about 3:30 in the afternoon of August 30, 1994, accused U Aung Win, a passenger of TG Flight No. 620 of the Thai Airways which
had just arrived from Bangkok, Thailand, presented his luggage, a travelling bag about 20 inches in length, 14 inches in width and 10

inches in thickness, for examination to Customs Examiner Busran Tawano, who was assigned at the Arrival Area of the Ninoy Aquino
International Airport (NAIA) in Pasay City. The accused also handed to Tawano his Customs Declaration No. 128417 stating that he
had no articles to declare. When Tawano was about to inspect his luggage, the accused suddenly left, proceeding towards the direction
of Carousel No. 1, the conveyor for the pieces of luggage of the passengers of Flight No. 620, as if to retrieve another baggage from it.
After having inspected the luggages of the other incoming passengers, Tawano became alarmed by the failure of U Aung Win to return
and suspected that the bag of the accused contained illegal articles. The Customs Examiner reported the matter to his superiors. Upon
their instructions, the bag was turned over to the office of the Customs Police in the NAIA for x-ray examination where it was detected
that it contained some powdery substance. When opened, the bag revealed two packages containing the substance neatly hidden in
between its partitions. Representative samples of the substance were examined by Elizabeth Ayonon, a chemist of the Crime
Laboratory Service of the Philippine National Police (PNP) assigned at the Arrival Area of the NAIA, and by Tita Advincula, another
chemist of the PNP Crime Laboratory Service at Camp Crame, and found to be positive for heroin. The two chemists concluded that
the entire substance, with a total weight of 5,579.80 grams, contained in the two packages found in the bag of U Aung Win, is heroin.
A manhunt was conducted to locate U Aung Win. The personnel of the Bureau of Immigration and Deportation in the NAIA were
asked to place the accused in the hold order list. The offices of the different airlines in the airport were also alerted to inform the
Enforcement and Security Service and the Customs Police Division of the NAIA of any departing passenger by the name of U Aung
Win who would check in at their departure counters. A team was likewise sent to the Park Hotel in Belen St., Paco, Manila, which
accused U Aung Win had indicated in his Customs Declaration as his address in the Philippines. But the accused was not found in that
hotel.
At about 7:45 p.m. of the same date of August 30, 1994, Rey Espinosa, an employee of the Lufthansa Airlines, notified the
commander of the NAIA Customs Police District Command that a certain Burmese national by the name of U Aung Win appeared at
the check-in counter of the airline as a departing passenger. Immediately, a team of law enforcers proceeded to the Departure Area and
apprehended the accused after he had been identified through his signatures in his Customs Declaration and in his Bureau of
Immigration and Deportation Arrival Card. Customs Examiner Tawano also positively identified the accused as the person who left his
bag with him at the Arrival Area of the NAIA.
During the investigation of U Aung Win, the agents of the Customs Police and the Narcotics Command (NARCOM) gathered the
information that the accused had a contact in Bangkok and that there were other drug couriers in the Philippines. Following the lead, a
team of lawmen, together with U Aung Win, was dispatched to the City Garden Hotel in Mabini St., Ermita, Manila, to enable U Aung
Win to communicate with his contact in Bangkok for further instructions. While the police officers were standing by, they noticed two
persons, a Caucasian and an oriental, alight from a car and enter the hotel. U Aung Win whispered to Customs Police Special Agent
Edgar Quiones that he recognized the two as drug couriers whom he saw talking with his contact in Bangkok named Mau Mau. The
members of the team were able to establish the identity of the two persons as accused Nigel Richard Gatward and one Zaw Win
Naing, a Thailander, from the driver of the hotel service car used by the two when they arrived in the hotel. It was gathered by the law
enforcers that Gatward and Zaw Win Naing were scheduled to leave for Bangkok on board a KLM flight.
On August 31, 1994, operatives of the NAIA Customs Police mounted a surveillance operation at the Departure Area for Gatward and
Zaw Win Naing who might be leaving the country. At about 7:45 p.m. of the same date, Special Agent Gino Minguillan of the
Customs Police made a verification on the passenger manifest of KLM Royal Dutch Airlines Flight No. 806, bound for Amsterdam via
Bangkok, which was scheduled to depart at about 7:55 that evening. He found the name GATWARD/NRMR listed therein as a
passenger for Amsterdam and accordingly informed his teammates who responded immediately. Customs Police Captain Juanito
Algenio requested Victorio Erece, manager of the KLM airline at the NAIA, to let passenger Gatward disembark from the aircraft and
to have his checked-in luggage, if any, unloaded. The manager acceded to the request to off-load Gatward but not to the unloading of
his check-in bag as the plane was about to depart and to do so would unduly delay the flight. However, Erece made an assurance that
the bag would be returned immediately to the Philippines on the first available flight from Bangkok. Upon his disembarkment,
Gatward was invited by the police officers for investigation.
At about 3:00 oclock in the afternoon of September 1, 1994, Gatwards luggage, a travelling bag almost of the same size as that of U
Aung Win, was brought back to the NAIA from Bangkok through the Thai Airways, pursuant to the request of Erece which was
telexed in the evening of August 31, 1994, to the KLM airline manager in Bangkok. Upon its retrieval, the law enforcers subjected the
bag to x-ray examinations in the presence of accused Gatward and some Customs officials. It was observed to contain some powdery
substance. Inside the bag were two improvised envelopes made of cardboard each containing the powdery substance, together with
many clothes. The envelopes were hidden inside the bag, one at the side in between a double-wall, the other inside a partition in the
middle. Upon its examination by Chemists Ayonon and Advincula pursuant to the request of Police Senior Inspector John Campos of
the NARCOM, the powdery substance contained in the two cardboard envelopes, with a net weight of 5,237.70 grams, was found to
be heroin.civ[3]
The court below made short shrift of the defense raised by herein appellant. Apart from the well-known rule on the respect accorded to
the factual findings of trial courts because of the vantage position they occupy in that regard, we accept its discussion thereon by
reason of its clear concordance with the tenets of law and logic. Again we quote:
Accused Gatward denied that the bag containing the heroin was his luggage. However, that the said bag belongs to him is
convincingly shown by the fact that the serial number of the luggage tag, which is KL 206835, corresponds to the serial number of the
luggage claim tag attached to the plane ticket of the accused. Moreover, as testified to by Manager Erece of the KLM airline, the
luggage of Gatward located in Container No. 1020 of KLM Flight No. 806 was the same luggage which was returned to the NAIA on
September 1, 1994, on board Thai Airways TG Flight No. 620, pursuant to the request made by him to the KLM manager in Bangkok.
The testimony of Erece should be given weight in accordance with the presumption that the ordinary course of business has been
followed. (Sec. 3(q), Rule 131, Revised Rules on Evidence). No circumstance was shown by the defense which would create a doubt
as to the identity of the bag as the luggage of Gatward which he checked in for KLM Flight No. 806 for Amsterdam with stopover in
Bangkok.

Accused Gatward was present during the opening of his bag and the examination of its contents. He was also interviewed by some
press reporters in connection with the prohibited drug found in the bag. Gatward did not then disclaim ownership of the bag and its
heroin contents. His protestations now that the bag does not belong to him should be deemed as an afterthought which deserves no
credence.
Gatward posited that he checked in a different bag when he boarded KLM Flight No. 806, explaining that upon his apprehension by
the agents of the NAIA Customs Police, he threw away the claim tag for the said luggage. He alleged that the said bag contained,
among other things, not only important documents and papers pertaining to his cellular phone business in the pursuit of which he came
to the Philippines, but also money amounting to L 1,500.00. Gatward stressed that the bag did not have any illegal articles in it. If this
were so, it was unusual for him, and certainly not in accordance with the common habit of man, to have thrown away the claim tag,
thereby in effect abandoning the bag with its valuable contents. Not having been corroborated by any other evidence, and being
rendered unbelievable by the circumstances accompanying it as advanced by him, the stand of accused Gatward that his luggage was
different from that which contained the 5,237.70 grams of heroin in question commands outright rejection.cv[4]
The trial court was also correct in rejecting the challenge to the admissibility in evidence of the heroin retrieved from the bag of
appellant. While no search warrant had been obtained for that purpose, when appellant checked in his bag as his personal luggage as a
passenger of KLM Flight No. 806 he thereby agreed to the inspection thereof in accordance with customs rules and regulations, an
international practice of strict observance, and waived any objection to a warrantless search. His subsequent arrest, although likewise
without a warrant, was justified since it was effected upon the discovery and recovery of the heroin in his bag, or in flagrante delicto.
The conviction of accused U Aung Win in Criminal Case No. 94-6269 is likewise unassailable. His culpability was not based only
upon his plea of guilty but also upon the evidence of the prosecution, the presentation of which was required by the lower court
despite said plea. The evidence thus presented convincingly proved his having imported into this country the heroin found in his
luggage which he presented for customs examination upon his arrival at the international airport. There was, of course, no showing
that he was authorized by law to import such dangerous drug, nor did he claim or present any authority to do so.
2. It is, however, the penalties imposed by the trial court on the two accused which this Court cannot fully accept. This is the
presentation made, and the rationalization thereof, by the court below:
According to Section 20 of the Dangerous Drugs Act of 1972, as amended by Republic Act No. 7659, the penalties for the offenses
under Sections 3 and 4 of the said Act shall be applied if the dangerous drugs involved, with reference to heroin, is 40 grams or more.
Since the heroin subject of each of these two cases exceeds 40 grams, it follows that the penalty which may be imposed on each
accused shall range from reclusion perpetua to death.
To fix the proper penalty, it becomes necessary to determine whether any mitigating or aggravating circumstance had attended the
commission of the offenses charged against the accused. With respect to Gatward, no aggravating or mitigating circumstance was
shown which might affect his criminal liability. Relative to U Aung Win, no aggravating circumstance was likewise established by the
prosecution. However, the voluntary plea of guilty of the said accused, which was made upon his arraignment and therefore before the
presentation of the evidence of the prosecution, should be appreciated as a mitigating circumstance.
Under Article 63 of the Revised Penal Code, which prescribes the rules for the application of indivisible penalties, in all cases in
which the law prescribes a penalty composed of two indivisible penalties, the lesser penalty shall be applied, if neither mitigating nor
aggravating circumstances are present in the commission of the crime, or if the act is attended by a mitigating circumstance and there
is no aggravating circumstance. However, this rule may no longer be followed in these cases, although the penalty prescribed by law is
reclusion perpetua to death, since reclusion perpetua, which was an indivisible penalty before, is now a divisible penalty with a
duration from 20 years and one (1) day to 40 years, in accordance with Article 27 of the Revised Penal Code, as amended by Republic
Act No. 7659.
Consequently, the penalty of reclusion perpetua to death should at present be deemed to fall within the purview of the penalty
prescribed which does not have one of the forms specially provided for in the Revised Penal Code, the periods of which shall be
distributed, applying by analogy the prescribed rules, in line with Article 77 of the Revised Penal Code. Pursuant to this principle, the
penalty of reclusion perpetua to death shall have the following periods: Death, as the maximum; thirty (30) years and one (1) day to
forty (40) years, as the medium; and twenty (20) years and one (1) day to thirty (30) years, as the minimum.
As there is no mitigating or aggravating circumstance shown to have attended the commission of the offense charged against Gatward,
the penalty to be imposed on him shall be within the range of the medium period. On the other hand, since U Aung Win is favored by
one mitigating circumstance without any aggravating circumstance to be taken against him, the penalty which may be imposed on him
shall be within the range of the minimum period. (Art. 64(1) & (2), Revised Penal Code)
The accused in these cases may not enjoy the benefit of Act No. 4103, the Indeterminate Sentence Law, for under Section 2 of the said
Act, its provisions shall not apply to those convicted of offenses punished with life imprisonment, which has been interpreted by the
Supreme Court as similar to the penalty of reclusion perpetua as far as the non-application of the Indeterminate Sentence Law is
concerned. (People vs. Simon, G.R. No. 93028, July 29, 1994)cvi[5]
On those considerations, the trial court handed down its verdict on March 3, 1995 finding both accused guilty as charged, thus:
WHEREFORE, in Criminal Case No. 94-6268, accused Nigel Richard Gatward is found guilty beyond reasonable doubt of
transporting, without legal authority therefor, 5,237.70 grams of heroin, a prohibited drug, in violation of Section 4 of Republic Act
No. 6425, otherwise known as the Dangerous Drugs Act of 1972, as amended by Republic Act No. 7659; and there being no
aggravating or mitigating circumstance shown to have attended the commission of the crime, he is sentenced to suffer the penalty of
imprisonment for thirty-five (35) years of reclusion perpetua and to pay a fine of Five Million Pesos (P5,000,000.00).

In Criminal Case No. 94-6269, accused U Aung Win is found guilty beyond reasonable doubt of importing or bringing into the
Philippines 5,579.80 grams of heroin, a prohibited drug, without being authorized by law to do so, contrary to Section 3 of Republic
Act No. 6425, the Dangerous Drugs Act of 1972, as amended by Republic Act No. 7659; and in view of the presence of one (1)
mitigating circumstance of voluntary plea of guilty, without any aggravating circumstance to offset it, he is sentenced to suffer the
penalty of imprisonment for twenty-five (25) years of reclusion perpetua and to pay a fine of One Million Pesos (P1,000,000.00).
The heroin involved in these cases is declared forfeited in favor of the government and ordered turned over to the Dangerous Drugs
Board for proper disposal.
With costs de oficio.cvii[6]
It is apropos to mention at this juncture that during the pendency of this appeal, and while awaiting the filing of appellants brief on an
extended period granted to his counsel de parte, the Court received on September 5, 1995 a mimeographed form of a so-called Urgent
Motion to Withdraw Appeal. It bears the signature of appellant but without the assistance or signature of his counsel indicated thereon.
No reason whatsoever was given for the desired withdrawal and considering the ambient circumstances, the Court resolved on
September 27, 1995 to deny the same for lack of merit.cviii[7]
On June 10, 1996, a letter was received from one H.M. Consul M.B. Evans of the British Embassy, Consular Section, Manila, seeking
an explanation for the aforesaid resolution and with the representation that a convicted person who did not, on reflection, wish to
continue with an appeal would not need to prove merit but could simply notify the courts of his wish to withdraw and that would be
the end of the matter. To be sure, this is not the first time that members of foreign embassies and consulates feel that they have a right
to intrude into our judicial affairs and processes, to the extent of imposing their views on our judiciary, seemingly oblivious or
arrogantly disdainful of the fact that our courts are entitled to as much respect as those in their own countries.
Such faux pas notwithstanding, a reply was sent to Mr. Evans informing him that, while there is no arrangement whereby a foreign
consular officer may intervene in a judicial proceeding in this Court but out of courtesy as enjoined in Republic Act No. 6713, the
unauthorized pleading of appellant was made under unacceptable circumstances as explained in said reply; that it is not mandatory on
this Court to dismiss an appeal on mere motion of an appellant; that the Court does not discuss or transmit notices of judicial action
except to counsel of the parties; and that, should he so desire, he could coordinate with appellants counsel whose address was
furnished therein.cix[8]
In a resolution dated June 19, 1996, appellants counsel was ordered to show cause why he should not be disciplinarily dealt with or
held for contempt for his failure to file appellants brief. On July 24, 1996, said counsel and the Solicitor General were required to
comment on the aforestated motion of appellant to withdraw his appeal, no brief for him having yet been filed. Under date of
September 6, 1996, the Solicitor General filed his comment surprisingly to the effect that the People interposed no objection to the
motion to withdraw appeal. Appellants counsel, on the other hand, manifested on November 4, 1996 that he was willing to file the
brief but he could not do so since appellant asked for time to consult his pastor who would later inform said counsel, but neither that
pastor nor appellant has done so up to the present.
It would then be worthwhile to restate for future referential purposes the rules in criminal cases on the withdrawal of an appeal
pending in the appellate courts. The basic rule is that, in appeals taken from the Regional Trial Court to either the Court of Appeals or
the Supreme Court, the same may be withdrawn and allowed to be retracted by the trial court before the records of the case are
forwarded to the appellate court.cx[9] Once the records are brought to the appellate court, only the latter may act on the motion for
withdrawal of appeal.cxi[10] In the Supreme Court, the discontinuance of appeals before the filing of the appellees brief is generally
permitted.cxii[11] Where the death penalty is imposed, the review shall proceed notwithstanding withdrawal of the appeal as the review
is automatic and this the Court can do without the benefit of briefs or arguments filed by the appellant. cxiii[12]
In the case at bar, however, the denial of the motion to withdraw his appeal by herein appellant is not only justified but is necessary
since the trial court had imposed a penalty based on an erroneous interpretation of the governing law thereon. Thus, in People vs.
Roque,cxiv[13] the Court denied the motion of the accused to withdraw his appeal, to enable it to correct the wrongful imposition by the
trial court of the penalty of reclusion temporal to reclusion perpetua for the crime of simple rape, in clear derogation of the provisions
of Article 335 of the Revised Penal Code and the Indeterminate Sentence Law. Similarly, in another case, cxv[14] the motion to
withdraw his appeal by the accused, whose guilt for the crime of murder was undeniable and for which he should suffer the medium
period of the imposable penalty which is reclusion perpetua, was not allowed; otherwise, to permit him to recall the appeal would
enable him to suffer a lesser indeterminate sentence erroneously decreed by the trial court which imposed the minimum of the penalty
for murder, that is, reclusion temporal in its maximum period.
In the cases at bar, the same legal obstacle constrained the Court to deny appellants motion to withdraw his appeal. The trial court had,
by considering reclusion perpetua as a divisible penalty, imposed an unauthorized penalty on both accused which would remain
uncorrected if the appeal had been allowed to be withdrawn. In fact, it would stamp a nihil obstantium on a penalty that in law does
not exist and which error, initially committed by this Court in another case on which the trial court relied, had already been set aright
by this Court.
3. As amended by Republic Act No. 7659, the respective penalties imposable under Sections 3 and 4 of the Dangerous Drugs Act, in
relation to Section 20 thereof, would range from reclusion perpetua to death and a fine of P500,000.00 to P10,000,000.00 if the
quantity of the illegal drug involved, which is heroin in this case, should be 40 grams or more. In the same amendatory law, the
penalty of reclusion perpetua is now accorded a defined duration ranging from twenty (20) years and one (1) day to forty (40) years,
through the amendment introduced by it to Article 27 of the Revised Penal Code.
This led the trial court to conclude that said penalty is now divisible in nature, and that (c)onsequently, the penalty of reclusion
perpetua to death should at present be deemed to fall within the purview of the penalty prescribed which does not have one of the
forms specially provided for in the Revised Penal Code, and the periods of which shall be distributed by an analogous application of

the rules in Article 77 of the Code. Pursuant to its hypothesis, the penalty of reclusion perpetua to death shall have the following
periods: death, as the maximum; thirty (30) years and one (1) day to forty (40) years, as the medium; and twenty (20) years and one
(1) day to thirty (30) years, as the minimum.cxvi[15]
We cannot altogether blame the lower court for this impass'e since this Court itself inceptively made an identical misinterpretation
concerning the question on the indivisibility of reclusion perpetua as a penalty. In People vs. Lucas,cxvii[16] the Court was originally of
the view that by reason of the amendment of Article 27 of the Code by Section 21 of Republic Act No. 7569, there was conferred upon
said penalty a defined duration of 20 years and 1 day to 40 years; but that since there was no express intent to convert said penalty into
a divisible one, there having been no corresponding amendment to Article 76, the provisions of Article 65 could be applied by analogy.
The Court then declared that reclusion perpetua could be divided into three equal portions, each portion composing a period. In effect,
reclusion perpetua was then to be considered as a divisible penalty.
In a subsequent re-examination of and a resolution in said case on January 9, 1995, occasioned by a motion for clarification
thereof,cxviii[17] the Court en banc realized the misconception, reversed its earlier pronouncement, and has since reiterated its amended
ruling in three succeeding appellate litigations.cxix[18] The Court, this time, held that in spite of the amendment putting the duration of
reclusion perpetua at 20 years and 1 day to 40 years, it should remain as an indivisible penalty since there was never any intent on the
part of Congress to reclassify it into a divisible penalty. This is evident from the undisputed fact that neither Article 63 nor Article 76
of the Code had been correspondingly altered, to wit:
Verily, if reclusion perpetua was reclassified as a divisible penalty, then Article 63 of the Revised Penal Code would lose its reason
and basis for existence. To illustrate, the first paragraph of Section 20 of the amended R.A. No. 6425 provides for the penalty of
reclusion perpetua to death whenever the dangerous drugs involved are of any of the quantities stated therein. If Article 63 of the Code
were no longer applicable because reclusion perpetua is supposed to be a divisible penalty, then there would be no statutory rules for
determining when either reclusion perpetua or death should be the imposable penalty. In fine, there would be no occasion for
imposing reclusion perpetua as the penalty in drug cases, regardless of the attendant modifying circumstances.
This problem revolving around the non-applicability of the rules in Article 63 assumes serious proportions since it does not involve
only drug cases, as aforesaid. Under the amendatory sections of R.A. No. 7659, the penalty of reclusion perpetua to death is also
imposed on treason by a Filipino (Section 2), qualified piracy (Section 3), parricide (Section 5), murder (Section 6), kidnapping and
serious illegal detention (Section 8), robbery with homicide (Section 9), destructive arson (Section 10), rape committed under certain
circumstances (Section 11), and plunder (Section 12).
In the same resolution, the Court adverted to its holding in People vs. Reyes, cxx[19] that while the original Article 27 of the Revised
Penal Code provided for the minimum and the maximum ranges of all the penalties therein, from arresto menor to reclusion temporal
but with the exceptions of bond to keep the peace, there was no parallel specification of either the minimum or the maximum range of
reclusion perpetua. Said article had only provided that a person sentenced to suffer any of the perpetual penalties shall, as a general
rule, be extended pardon after service thereof for 30 years. Likewise, in laying down the procedure on successive service of sentence
and the application of the three-fold rule, the duration of perpetual penalties is computed at 30 years under Article 70 of the Code.
Furthermore, since in the scales of penalties provided in the Code, specifically those in Articles 25, 70 and 71, reclusion perpetua is
the penalty immediately higher than reclusion temporal, then its minimum range should by necessary implication start at 20 years and
1 day while the maximum thereunder could be co-extensive with the rest of the natural life of the offender. However, Article 70
provides that the maximum period in regard to service of the sentence shall not exceed 40 years.
Thus, the maximum duration of reclusion perpetua is not and has never been 30 years which is merely the number of years which the
convict must serve in order to be eligible for pardon or for the application of the three-fold rule. Under these accepted propositions, the
Court ruled in the motion for clarification in the Lucas case that Republic Act No. 7659 had simply restated existing jurisprudence
when it specified the duration of reclusion perpetua at 20 years and 1 day to 40 years.
The error of the trial court was in imposing the penalties in these cases based on the original doctrine in Lucas which was not yet final
and executory, hence open to reconsideration and reversal. The same having been timeously rectified, appellant should necessarily
suffer the entire extent of 40 years of reclusion perpetua, in line with that reconsidered dictum subsequently handed down by this
Court. In passing, it may be worth asking whether or not appellant subsequently learned of the amendatory resolution of the Court
under which he stood to serve up to 40 years, and that was what prompted him to move posthaste for the withdrawal of his appeal
from a sentence of 35 years.
4. The case of U Aung Win ostensibly presents a more ticklish legal poser, but that is not actually so. It will be recalled that this
accused was found guilty and sentenced to suffer the penalty of reclusion perpetua supposedly in its minimum period, consisting of
imprisonment for 25 years, and to pay a fine of P1,000,000.00. He did not appeal, and it may be contended that what has been said
about the corrected duration of the penalty of reclusion perpetua which we hold should be imposed on appellant Gatward, since
reclusion perpetua is after all an indivisible penalty, should not apply to this accused.
Along that theory, it may be asserted that the judgment against accused U Aung Win has already become final. It may also be argued
that since Section 11(a) of Rule 122 provides that an appeal taken by one accused shall not affect those who did not appeal except
insofar as the judgment of the appellate court is favorable and applicable to the latter, our present disposition of the correct duration of
the penalty imposable on appellant Gatward should not affect accused U Aung Win since it would not be favorable to the latter. To use
a trite and tired legal phrase, those objections are more apparent than real.
At bottom, all those postulations assume that the penalties decreed in the judgment of the trial court are valid, specifically in the sense
that the same actually exist in law and are authorized to be meted out as punishments. In the case of U Aung Win, and the same holds
true with respect to Gatward, the penalty inflicted by the court a quo was a nullity because it was never authorized by law as a valid
punishment. The penalties which consisted of aliquot one-third portions of an indivisible penalty are self-contradictory in terms and

unknown in penal law. Without intending to sound sardonic or facetious, it was akin to imposing the indivisible penalties of public
censure, or perpetual absolute or special disqualification, or death in their minimum or maximum periods.
This was not a case of a court rendering an erroneous judgment by inflicting a penalty higher or lower than the one imposable under
the law but with both penalties being legally recognized and authorized as valid punishments. An erroneous judgment, as thus
understood, is a valid judgment.cxxi[20] But a judgment which ordains a penalty which does not exist in the catalogue of penalties or
which is an impossible version of that in the roster of lawful penalties is necessarily void, since the error goes into the very essence of
the penalty and does not merely arise from the misapplication thereof. Corollarily, such a judgment can never become final and
executory.
Nor can it be said that, despite the failure of the accused to appeal, his case was reopened in order that a higher penalty may be
imposed on him. There is here no reopening of the case, as in fact the judgment is being affirmed but with a correction of the very
substance of the penalty to make it conformable to law, pursuant to a duty and power inherent in this Court. The penalty has not been
changed since what was decreed by the trial court and is now being likewise affirmed by this Court is the same penalty of reclusion
perpetua which, unfortunately, was imposed by the lower court in an elemental form which is non-existent in and not authorized by
law. Just as the penalty has not been reduced in order to be favorable to the accused, neither has it been increased so as to be
prejudicial to him.
Finally, no constitutional or legal right of this accused is violated by the imposition upon him of the corrected duration, inherent in the
essence and concept, of the penalty. Otherwise, he would be serving a void sentence with an illegitimate penalty born out of a
figurative liaison between judicial legislation and unequal protection of the law. He would thus be the victim of an inadvertence which
could result in the nullification, not only of the judgment and the penalty meted therein, but also of the sentence he may actually have
served. Far from violating any right of U Aung Win, therefore, the remedial and corrective measures interposed by this opinion protect
him against the risk of another trial and review aimed at determining the correct period of imprisonment.
WHEREFORE, the judgment of the court a quo, specifically with regard to the penalty imposed on accused-appellant Nigel Richard
Gatward in Criminal Case No. 94-6268 and that of accused U Aung Win in Criminal Case No. 94-6269, is hereby MODIFIED in the
sense that both accused are sentenced to serve the penalty of reclusion perpetua in its entire duration and full extent. In all other
respects, said judgment is hereby AFFIRMED, but with costs to be assessed against both accused in all instances of these cases.
SO ORDERED.

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