G.R. Nos.

L-37201-02 March 3, 1975

CLEMENTE
MAGTOTO, petitioner,
vs.
HON. MIGUEL M. MANGUERA, Judge of the Court of First Instance (Branch II) of Occidental Mindoro, The
PEOPLE OF THE PHILIPPINES, IGNACIO CALARA, JR., and LOURDES CALARA, respondents.
G.R. No. L-37424 March 3, 1975
MAXIMO SIMEON, LOUIS MEDNATT, INOCENTES DE LUNA, RUBEN MIRANDA, ALFONSO BALLESTEROS,
RUDOLFO SUAREZ, MANUEL MANALO, ALBERTO GABION, and RAFAEL BRILL, petitioners,
vs.
HON. ONOFRE A. VILLALUZ, in his capacity as Judge of the Criminal Circuit Court of Pasig, Rizal, and
PEOPLE OF THE PHILIPPINES, respondents.
G.R. No. L-38929 March 3, 1975
THE
PEOPLE
OF
THE
PHILIPPINES,
petitioner,
vs.
HONORABLE ASAALI S. ISNANI, District Judge of the Court of First Instance of Zamboanga del Sur, Branch
II, VICENTE LONGAKIT, and JAIME DALION, respondents.
Felipe S. Abeleda for petitioner Clemente Magtoto.
Joaquin L. Misa for petitioners Maximo Simeon, et al.
Alan L. Roxas for respondents Ignacio Calara, Jr., et al.
Organo Law Office for respondent Vicente Longakit, et al.
Office of the Solicitor General Estelito P. Mendoza and Assistant Solicitor General Vicente V. Mendoza for
respondent and petitioner People of the Philippines.

FERNANDEZ, J.:+.wph!1
The present cases involve an interpretation of Section 20, Article IV of the New Constitution, which
reads:t.hqw
No person shall be compelled to be a witness against himself. Any person under
investigation for the commission of an offense shall have the right to remain silent and to
counsel, and to be informed of such right. No force, violence, threat, intimidation, or any
other means which vitiates the free will shall be used against him. Any confession
obtained in violation of this section shall be inadmissible in evidence,
and specifically, the portion thereof which declares inadmissible a confession obtained from a person under
investigation for the commission of an offense who has not been informed of his right (to remain silent and)
to counsel. 1
We hold that this specific portion of this constitutional mandate has and should be given a prospective and
not a retrospective effect. Consequently, a confession obtained from a person under investigation for the
commission of an offense, who has not been informed of his right (to silence and) to counsel, is
inadmissible in evidence if the same had been obtained after the effectivity of the New Constitution on
January 17, 1973. Conversely, such confession is admissible in evidence against the accused, if the same
had been obtained before the effectivity of the New Constitution, even if presented after January 17, 1973,
and even if he had not been informed of his right to counsel, since no law gave the accused the right to be
so informed before that date.
Accordingly, We hereby sustain the orders of the respondent Judges in G.R. No.
L-37201-02 2 and G.R. No. L-37424 3 declaring admissible the confessions of the accused in said cases, and
We hereby set aside the order of the respondent Judge challenged in G.R. No. L-38929 4 which declared
inadmissible the confessions of the accused in said case, although they have not been informed of their
right to remain silent and to counsel before they gave the confessions, because they were given before the
effectivity of the New Constitution.

The reasons for these rulings are as follows:

Section 20, Article IV of the New Constitution granted, for the first time, to a person under investigation for
the commission of an offense, the right to counsel and to be informed of such right. And the last sentence
thereof which, in effect, means that any confession obtained in violation of this right shall be inadmissible in
evidence, can and should be given effect only when the right already existed and had been violated.
Consequently, because the confessions of the accused in G.R. Nos. L-37201-02, 37424 and 38929 were
taken before the effectivity of the New Constitution in accordance with the rules then in force, no right had
been violated as to render them inadmissible in evidence although they were not informed of "their right to
remain silent and to counsel," "and to be informed of such right," because, We repeat, no such right existed
at the time.
The argument that the second paragraph of Article 125 of the Revised Penal Code, which was added by
Republic Act No. 1083 enacted in l954, which reads as follows:t.hqw
In every case, the person detained shall be informed of the cause of his detention and
shall be allowed, upon his request, to communicate and confer at any time with his
attorney or counsel.
impliedly granted to a detained person the right to counsel and to be informed of such right, is untenable.
The only right granted by said paragraph to a detained person was to be informed of the cause of his
detention. But he must make a request for him to be able to claim the right to communicate and confer with
counsel at any time.
The remark of Senator Cuenco, when Republic Act No. 1083 was being discussed in the Senate, that the bill
which became Republic Act No. 1083 provides that the detained person should be informed of his right to
counsel, was only the personal opinion of Senator Cuenco. We grant that he was, as We personally knew
him to be, a learned lawyer and senator. But his statement could reflect only his personal opinion because if
Congress had wanted Republic Act No. 1083 to grant a detained person a right to counsel and to be
informed of such right, it should have been so worded. Congress did not do so.
As originally worded, Senate Bill No. 50, which became Republic Act No. 1083, provided: "In every case the
person detained shall be allowed, upon his request, to have the services of an attorney or counsel. In the
period of amendment, the phrase "have the services of" was changed to the present wording "communicate
and confer anytime with his." As the Solicitor General points out in his able memorandum, apparently the
purpose was to bring the provision in harmony with the provision of a complementary measure, Republic
Act No. 857 (effective July 16, 1953), which provides:t.hqw
SECTION 1. Any public officer who shall obstruct, prohibit, or otherwise prevent an
attorney entitled to practice in the courts of the Philippines from visiting and conferring
privately with a person arrested, at any hour of the day or, in urgent cases, of the night,
said visit and conference being requested by the person arrested or by another acting in
his behalf, shall be punished by arresto mayor.
None of these statutes requires that police investigators inform the detained person of his "right" to
counsel. They only allow him to request to be given counsel. It is not for this Court to add a requirement and
carry on where both Congress and the President stopped.
The history behind the new right granted to a detained person by Section 20, Article IV of the New
constitution to counsel and to be informed of said right under pain of a confession taken in violation thereof
being rendered inadmissible in evidence, clearly shows the intention to give this constitutional guaranty not

a retroactive, but a prospective, effect so as to cover only confessions taken after the effectivity of the New
Constitution.
To begin with, Section 29, Rule 130 of the Rules of Court, provides:t.hqw
Confession.The declaration of an accused expressly acknowledging his guilt of the
offense charged, may be given in evidence against him.
And according to Section 3, Rule 133 of the Rules of Court:
Extrajudicial confession, not sufficient ground for conviction.An extrajudicial confession made by an
accused, shall not be sufficient ground for conviction, unless corroborated by evidence of corpus delicti.
Extrajudicial confessions of the accused in a criminal case are universally recognized as admissible in
evidence against him, based on the presumption that no one would declare anything against himself unless
such declarations were true. Accordingly, it has been held that a confession constitutes an evidence of a
high order since it is supported by the strong presumption that no person of normal mind would deliberately
and knowingly confess to a crime unless prompted by truth and conscience. (U.S. vs. Delos Santos, 24 Phil.
329, 358).
The fundamental rule is that a confession, to be admissible, must be voluntary. And the first rule in this
connection was that before the confession could be admitted in evidence, the prosecution must first show
to the satisfaction of the Court that the same was freely and voluntarily made, as provided for in Section 4 of
Act 619 of the Philippine Commission (U.S. vs. Pascual, August 29, 1903, 2 Phil. 458). But with the repeal of
said provision of law by the Administrative Code in 1916, the burden of proof was changed. Now, a
confession is admissible in evidence without previous proof of its voluntariness on the theory that it is
presumed to be voluntary until the contrary is proved (5 Moran, Comments on the Rules of Court, p. 264;
People vs. Dorado, 30 SCRA 53, 57, citing U.S. vs. Zara, 42 Phil. 308; People vs. Cabrera, 43 Phil. 64; People
v. Singh, 45 Phil. 676; People v. Pereto, 21 SCRA 1469).
And once the accused succeeds in proving that his extrajudicial confession was made involuntarily, it
stands discredited in the eyes of the law and is as a thing which never existed. It is incompetent as evidence
and must be rejected. The defense need not prove that its contents are false (U.S. vs. Delos Santos, 24 Phil.
329, 358; U.S. vs. Zara, 42 Phil. 325, November, 1921). The same rule was followed in People vs. Nishishima.
"Involuntary confessions are uniformly held inadmissible as evidence by some courts on the ground that
a confession so obtained is unreliable, and by some on the ground of humanitarian principles which abhor
all forms of torture or unfairness towards the accused in criminal proceedings. ... ." (57 Phil. 26, 48, 51;
1932). 4* In the concurring opinion of Justice Butte, he said: "Apart, from the fact that involuntary
confessions will be declared incompetent and are therefore utterly futile, it is high time to put a stop to these
(third degree) practices which are a blot on our Philippine civilization."
This rule was, however, changed by this court in 1953 in the case of People vs. Delos Santos, et al., G.R. No.
L-4880, citing the rule in Moncado vs. People's Court, et al., 80 Phil 1, and followed in the case ofPeople vs.
Villanueva, et al. (G.R. No. L-7472, January 31, 1956), to the effect that "a confession to be repudiated, must
not only be proved to have been obtained by force or violence or intimidation, but alsothat it is false or
untrue, for the law rejects the confession when by force or violence, the accused is compelled against this
will to tell a falsehood, not when by such force and violence is compelled to tell the truth." This ruling was
followed in a number of cases. 5
But the ruling in Moncado vs. People's Court et al., 80 Phil 1, which was the basis of the leading case
ofPeople vs. Delos Santos, supra, was overruled in the case of Stonehill vs. Diokno (20 SCRA 383, June 19,
1963), holding that evidence illegally obtained is not admissible in evidence. So, We reverted to the original

rule. As stated by this Court, speaking thru Justice Teehankee in People vs. Urro (44 SCRA 473, April 27,
1972), "involuntary or coerced confessions obtained by force or intimidation are null and voidand are
abhorred by law which proscribes the use of such cruel and inhuman methods to secure a confession." "A
coerced confession stands discredited in the eyes of the law and is as a thing that never existed." The
defense need not prove that its contents are false. Thus, We turned full circle and returned to the rule
originally established in the case of U.S. vs. Delos Santos, 24 Phil. 323 and People vs. Nishishima, 42 Phil.
26. (See also People vs. Imperio, 44 SCRA 75).
It must be noted that all these Philippine cases refer to coerced confessions, whether the coercion was
physical, mental and/or emotional.
In the meantime, the United States Supreme Court decided the following cases: Massiah vs. United
States (377 U.S. 201, 1964), Escobedo vs. Illinois (378 U.S. 478, 1964); and Miranda vs. Arizona (384 U.S. 436,
1966). In Miranda vs. Arizona, it was held:t.hqw
To summarize, we hold that when an individual is taken into custody or otherwise
deprived of his freedom by the authorities in any significant way and is subjected to
questioning, the privilege against self-incrimination is jeopardized. Procedural
safeguards must be employed to protect the privilege *[384 U.S. 479]* and unless other
fully effective means are adopted to notify the person of his right of silence and to assure
that the exercise of the right will be scrupulously honored, the following measures are
required. He must be warned prior to any questioning that he has the right to remain
silent, that anything he says can be used against him in a court of law, that he has the
right to the presence of an attorney, and that if he cannot afford an attorney one will be
appointed for him prior to any questioning if he so desires. Opportunity to exercise these
rights must be afforded to him throughout the interrogation. After such warning have
been given, and such opportunity afforded him, the individual may knowingly and
intelligently waive these rights and agree to answer questions or make statement. But
unless and until such warning and waiver are demonstrated by the prosecution at trial, no
evidence obtained as a result of interrogation can be used against him. (Miranda vs.
Arizona, supra, p. 478)[Emphasis Ours]
When invoked in this jurisdiction, however, the Miranda rule was rejected by this Court. In the cases
ofPeople vs. Jose (37 SCRA 450, February 6, 1971) and People vs. Paras 56 SCRA 248, March 29, 1974), We
rejected the rule that an extrajudicial confession given without the assistance of counsel is inadmissible in
evidence. This Court in the Jose case(as in the Paras case), held:t.hqw
The inadmissibility of his extrajudicial statements is likewise being questioned by Jose
on the other ground that he was not assisted by counsel during the custodial
interrogations. He cites the decisions of the Supreme Court of the United States
in Massiah vs. U.S. (377 U.S. 201), Escobedo vs. Illinois (37 U.S. 478) and Miranda vs
.Arizona (384 U.S. 436).
The provision of the Constitution of the Philippines in point is Article III (Bill of Rights),
Section 1, par. 17 of which provides: "In all criminal prosecutions the accused shall ...
enjoy the right to be heard by himself and counsel ... ." While the said provision is
identical to that in the Constitution of the United States, in this jurisdiction the term
criminal prosecutions was interpreted by this Court in U.S. vs. Beechman, 23 Phil 258
(1912), in connection with a similar provision in the Philippine Bill of Rights (Section 5 of
Act of Congress of July 1, 1902), to mean proceedings before the trial court from
arraignment to rendition of the judgment. Implementing the said Constitutional provision,
We have provided in Section 1, Rule 115 of the Rules of Court that "In all criminal
prosecutions the defendant shall be entitled ... (b) to be present and defend in person and
by attorney at every state of the proceedings, that is, from the arraignment to the

promulgation of the judgment." The only instances where an accused is entitled to

counsel before arraignment, if he so requests, are during the second stage of preliminary
investigation (Rule 112, Section 11) and after the arrest(Rule 113, Section 18). The rule in
the United States need not be unquestioningly adhered to in this jurisdiction, not only
because it has no binding effect here, but also because in interpreting a provision of the
Constitution the meaning attached hereto at the time of the adoption thereof should be
considered. And even there the said rule is not yet quite settled, as can be deduced from
the absence of unanimity in the voting by the members of the United States Supreme
Court in all the three above-cited cases. (People vs. Jose, supra, at page 472).
The Constitutional Convention at the time it deliberated on Section 20, Article IV of the New Constitution was
aware of the Escobedo and Miranda rule which had been rejected in the case of Jose. That is the reason why
the Miranda-Escobedo rule was expressly included as a new right granted to a detained person in the
present provision of Section 20, Article IV of the New Constitution.
When Delegate de Guzman (A) submitted the draft of this Section 20, Article IV to the October 26, 1972
meeting of the 17-man committee of the Steering Council, Delegate Leviste (O) expressly made of record
that "we are adopting here the rulings of US Supreme Court in the Miranda-Escobedo cases." And We
cannot agree with the insinuation in the dissenting opinion of Justice Castro that the Delegates did not know
of the existence of the second paragraph of Art. 125 of the Revised Penal Code.
Hence, We repeat, this historical background of Section 20, Article IV of the New Constitution, in Our
considered opinion, clearly shows that the new right granted therein to a detained person to counsel and to
be informed of such right under pain of his confession being declared inadmissible in evidence, has and
should be given a prospective and not a retroactive effect. It did not exist before its incorporation in our New
Constitution, as We held in the Jose and Paras cases, supra.
The authors of the dissenting opinions ignore the historical fact that the constitutional and legal guarantees
as well as the legal precedents that insure that the confession be voluntary, underwent a slow and tedious
development. The constitutional guarantee in question might indeed have come late in the progress of the
law on the matter. But it is only now that it had come under Section 20 of Article IV of the 1973 Constitution.
That is all that our duty and power ordain Us to proclaim; We cannot properly do more.
Furthermore, to give a retroactive effect to this constitutional guarantee to counsel would have a great
unsettling effect on the administration of justice in this country. It may lead to the acquittal of guilty
individuals and thus cause injustice to the People and the offended parties in many criminal cases where
confessions were obtained before the effectivity of the New Constitution and in accordance with the rules
then in force although without assistance of counsel. The Constitutional Convention could not have
intended such a a disastrous consequence in the administration of justice. For if the cause of justice suffers
when an innocent person is convicted, it equally suffers when a guilty one is acquitted.
Even in the United States, the trend is now towards prospectivity. As noted in the memorandum of the
Solicitor General:t.hqw
... That survey indicates that in the early decisions rejecting retroactivity, the United
States Supreme Court did not require "pure prospectivity;" the new constitutional
requirements there were applied to all cases still pending on direct review at the time they
were announced. (See Linkletter vs. Walker, 381 U.S. 618 (1965) (on admissibility of
illegally-seized evidence); Tehan vs. Shott, 382 U.S. 406 (1966) (on the self-incrimination
rule of Griffin vs. California, 380 U.S. 609 (1965). But the Court began a new course with
Johnson vs. New Jersey, 384 U.S. 719 (1966). It departed from Linkletter and Tehan and
came closer to "pure prospectivity" by refusing to permit cases still pending on direct
review to benefit from the new in-custody interrogation requirements of Miranda vs.

Arizona. As Chief Justice Warren observed in Jenkins vs. Delaware, 395 U.S. 213 (1969),
"With Johnson we began increasing emphasis upon the point at which law enforcement
officials relied upon practices not yet prescribed." "More recently," he continued, "we
have selected the point of initial reliance." That development began with Stovall vs.
Denno, 388 U.S. 293 (1967) (on the line-up requirements of United States vs. Wade, 388
U.S. 218 (1967) and Gilbert vs. California, 388 U.S. 263 (1967). These new rulings were
held applicable only in the immediate cases "and all future cases which involve
confrontation for identification purposes conducted in the absence of counsel after the
dates of Wade and Gilbert." The fact that Wade and Gilbert were thus the only
beneficiaries of the new rules was described as an "unavoidable consequence of the
necessity that constitutional adjudications not stand as mere dictum." In Jenkins vs.
Delaware itself, the Court held that the Miranda requirement did not apply to a re-trial
after June 13, 1966 the cut-off point set for the Miranda requirement by Johnson vs.
New Jersey because Jenkins original trial had begun before the cut-off point.
Thus, the remarkable thing about this development in judge-made law is not that it is
given limited retroactive effort. That is to be expected in the case of judicial decision as
distinguished from legislation. The notable thing is that the limited retroactivity given to
judge-made law in the beginning by Linkletter vs. Walker has been abandoned as the
Supreme Court in Johnson vs. New Jersey and in Jenkins vs. Delaware moved toward
"pure prospectivity" (pp. 26-28) (Respondents' memorandum, Feb. 16, 1974).
The provision of Article 22 of the Revised Penal Code that:t.hqw
Retroactive effect of penal laws.Penal laws shall have a retroactive effect insofar as
they favor the person guilty of a felony, who is not a habitual criminal, as this term is
defined in Rule 5 of Article 62 of this Code, although at the time of the publication of such
laws a final sentence has been pronounced and the convict is serving the same,
is not applicable to the present cases: First, because of the inclusion We have arrived at that the
constitutional provision in question has a prospective and not a retrospective effect, based on the reasons
We have given; second, because the "penal laws" mentioned in Article 22 of the Revised Penal Code refer
to substantive penal laws, while the constitutional provision in question is basically aprocedural rule of
evidence involving the incompetency and inadmissibility of confessions and therefore cannot be included in
the term "penal laws;" 6 and third, because constitutional provisions as a rule should be given a prospective
effect. 7
Even as We rule that the new constitutional right of a detained person to counsel and to be informed of such
right under pain of any confession given by him in violation thereof declared inadmissible in evidence, to be
prospective, and that confessions obtained before the effectivity of the New Constitution are admissible in
evidence against the accused, his fundamental right to prove that his confession was involuntary still
stands. Our present ruling does not in any way diminish any of his rights before the effectivity of the New
Constitution.
IN VIEW OF ALL THE FOREGOING, the petitions for writs of certiorari in G.R. Nos. L-37201-02 and G.R. No.
L-37424 are denied and that in G.R. No. L-38929 is granted. As a consequence, all the confessions involved
in said cases are hereby declared admissible in evidence. No costs.
Makalintal, C.J., Barredo, Makasiar, Esguerra, Muoz Palma and Aquino, JJ., concur.

PEOPLE OF THE PHILIPPINES,

Plaintiff-Appellee,

G.R. No. 182420

Present:

- versus -

ELSIE BARBA y BIAZON,

Accused-Appellant.

YNARES-SANTIAGO, J.,
Chairperson,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA, and
PERALTA, JJ.
Promulgated:
July 23, 2009

x-----------------------------------------------------------------------------------------x
DECISION
VELASCO, JR., J.:
This is an appeal from the August 29, 2007 Decision of the Court of Appeals (CA) in CA-G.R. CR-H.C. No.
01587 entitled People of the Philippines v. Elsie Barba y Biazon,which affirmed the September 14, 2005
Decision in Criminal Case No. Q-03-114526 of the Regional Trial Court (RTC), Branch 103 in Quezon City. The
RTC convicted accused-appellant Elsie Barba y Biazon of violation of Section 5 of Republic Act No. (RA)
9165 or The Comprehensive Dangerous Drugs Act of 2002.
The Facts
An Information was filed charging Barba with drug pushing under RA 9165, quoted below:
That on or about the 16 th day of January, 2003, in Quezon City, Philippines, the said accused, not being
authorized to sell, deliver, transport or distribute any dangerous drugs, did then and there, willfully and
unlawfully sell, dispense, deliver, transport and distribute or act as broker in the said transaction, 0.04 (zero
point zero four) gram of white crystalline substance containing Methylamphetamine Hydrochloride, a
dangerous drug.
Contrary to law.[1]
According to the prosecution, PO2 Rodel Rabina, PO2 Arnulfo Aguillon, and PO1 Michael Almacen
conducted a surveillance operation against Barba in Pag-asa, Quezon City onJanuary 16, 2003. Satisfied that
Barba was engaged in the sale of illegal drugs, they conducted a buy-bust operation the next day. PO2
Rabina acted as poseur-buyer.[2] PO2 Rabina went to Barbas house with their informant and asked Barba if
he could buy PhP 200 worth of shabu from her. Barba left to go inside her house. As she was going inside,
PO2 Rabina noticed three (3) men inside who were engaging in a pot session. These men were identified as
Barbas co-accused Eduardo Silvestre, Rene Banzuelo, and Reynaldo Labrador.[3]
After a few moments, Barba came back with two (2) sachets which she gave to PO2 Rabina. She then asked
if he would like to test the purity of the sachets contents, to which PO2 Rabina replied in the negative. He
gave a PhP 200 marked bill to Barba and then scratched his head, the pre-arranged signal for the other
members of the buy-bust team to join them. Barba, Silvestre, Banzuelo, and Labrador were all arrested. The
PhP 200 marked bill, shabu, and drug paraphernalia found were retrieved and brought to the police station
along with the accused.[4] PO2 Rabina marked the plastic sachets with RR, his initials. [5] PO1 Almacen, on the
other hand, marked the confiscated tooter with MA01-17-03, his initials included. That same day, Inspector
Rodrigo Legaspi Bauto submitted a Request for Laboratory Examination [6] (Exhibit F) of the seized drug and
paraphernalia addressed to the Crime Laboratory of the Philippine National Police (PNP) Central Police

District. In turn, Forensic Chemist Leonard M. Jabonillo prepared Chemistry Report No. D-086-2003 [7] (Exhibit
G) which showed that of the specimens [8] submitted, the plastic sachets and the strip of aluminum foil
contained methylamphetamine hydrochloride orshabu.
Barba was subsequently charged for drug pushing. The others arrested were charged with possession of
drug paraphernalia. All four accused pleaded not guilty at their arraignment.
Barba denied the charge against her by claiming she had been framed. On January 17, 2003, at
around 2:30 in the morning, she was awakened by the sound of someone knocking on her door. The door
was then forcibly opened and eight (8) persons entered her house and searched the premises. Although no
illegal drugs had been found she was arrested along with Banzuelo and brought to the police station. She
denied knowing her co-accused Silvestre and Labrador and claimed they were arrested by the police on
their way to the police vehicle. Her testimony was corroborated by Banzuelo, who said he was sleeping in
Barbas house when they were arrested and that the arresting officers found no illegal drugs or
paraphernalia during their search.[9]
The RTC ruled against Barba. The dispositive portion of its Joint Decision reads:
ACCORDINGLY, judgment is hereby rendered as follows:
1.
In Criminal Case No. Q-03-114526, accused ELSIE BARBA y Biazon is hereby found GUILTY
beyond reasonable doubt of the crime of drug pushing and she is hereby sentenced to Life Imprisonment
and to pay a fine of Five Hundred Thousand (P500,000.00) Pesos.
2.
In Criminal Case No. Q-03-1145267, accused EDUARDO SILVESTRE y Agua, RENE BANZUELO y
Sigaan and REYNALDO LABRADOR y Padua are hereby found GUILTY beyond reasonable doubt of the
crime possession of drug paraphernalia and each is hereby sentenced to a jail term of Six (6) Months and
One (1) Day to One (1) Year and each to pay a fine of Ten Thousand (P10,000.00) Pesos.
The drugs involved in these cases, including the drug paraphernalia, are hereby ordered transmitted to the
PDEA thru DDB for proper disposition.
SO ORDERED.[10]
On October 5, 2005, Barba filed a Notice of Appeal of the RTC Decision.
In her Appellants Brief, [11] Barba assigned the following errors: (1) the trial court gravely erred in
convicting Barba, when her guilt has not been proved beyond doubt; and (2) the trial court gravely erred
when it gave credence to the conflicting and unsupported testimonies of the prosecutions witnesses.
The CA in its decision[12] affirmed the RTC decision. The CA held that the prosecution presented sufficient
evidence to overcome the constitutional presumption of innocence. The two police officers who took the
stand both testified that Barba was caught in flagrante delicto, and their testimonies agreed on the essential
facts. According to the CA, the elements required for proving the illegal sale of dangerous drugs were met in
consonance with People v. Mala: first, the identity of the seller and the buyer, as well as the object and the
consideration of the sale, was proved; and second, the delivery of the thing sold and the payment for it was
likewise shown.[13]
Moreover, the appellate court held that no evidence was offered to overturn the legal presumption that the
police officers have performed their duties regularly. No improper motive was given as to why they, being
involved in the buy-bust operation, would fabricate the charges against Barba and her co-accused.
The CA also held that the so-called inconsistency in the police officers testimony was inconsequential.
Whether or not there was a prior surveillance was immaterial.
On September 13, 2007, Barba filed a Notice of Appeal of the CA Decision.

On June 18, 2008, this Court required the parties to submit supplemental briefs if they so desired. The
parties manifested their willingness to submit the case on the basis of the records already submitted.
The Issues
I
THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT, WHEN HER GUILT HAS
NOT BEEN PROVEN BEYOND REASONABLE DOUBT
II
THE TRIAL COURT GRAVELY ERRED WHEN IT GAVE CREDENCE TO THE CONFLICTING AND
UNSUPPORTED TESTIMONIES OF THE PROSECUTIONS WITNESSES

In People v. Sanchez,[21] the accused was acquitted since the prosecution did not make known the identities
of the police officers to whom custody of the seized drugs was entrusted after the buy-bust operation.
Likewise absent from the evidence is any testimony on the whereabouts of the drugs after they were
analyzed by the forensic chemist.
In People v. Garcia,[22] the conviction was overturned due in part to the failure of the state to show who
delivered the drugs to the forensic laboratory and who had custody of them after their examination by the
forensic chemist and pending their presentation in court.
In People v. Cervantes,[23] a total of five (5) links in the chain of custody were not presented in court: the desk
officer who received the drugs at the police station; the unnamed person who delivered the drugs to the
forensic laboratory; the recipient of the drugs at the forensic laboratory; the forensic chemist who did the
examination of the drugs; and the person who acted as custodian of the drugs after their analysis.

Our Ruling
To reiterate, the essential elements in a prosecution for sale of illegal drugs are: (1) the identities of the
buyer and the seller, the object, and consideration; and (2) the delivery of the thing sold and the payment for
it.[14] The prohibited drug is an integral part of the corpus delicti of the crime of possession or selling of
regulated/prohibited drug; proof of its identity, existence, and presentation in court are crucial. [15] A
conviction cannot be sustained if there is a persistent doubt on the identity of the drug. The identity of the
prohibited drug must be established with moral certainty. Apart from showing that the elements of
possession or sale are present, the fact that the substance illegally possessed and sold in the first place is
the same substance offered in court as exhibit must likewise be established with the same degree of
certitude as that needed to sustain a guilty verdict.[16]
The identity of the subject substance is established by showing the chain of custody. In Espinoza v.
State, an adequate foundation establishing a continuous chain of custody is said to have been established if
the State accounts for the evidence at each stage from its acquisition to its testing, and to its introduction at
trial.[17] In a prosecution for sale of illegal drugs, this foundation takes more significance because of the
nature of the evidence involved. [18] The more fungible the evidence, the more significant its condition, or the
higher its susceptibility to change, the more elaborate the foundation must be. In those circumstances, it
must be shown that there has been no tampering, alteration, or substitution. [19]
The chain of custody presented by the prosecution in this case suffers from incompleteness. After the illegal
drugs were seized from Barba, PO2 Rabina marked the plastic sachets with his initials. PO1 Almacen
marked the tooter in the same manner. The seized aluminum foil was marked AA, presumably after PO2
Arnulfo Aguillon but there is no testimony on this. Once at the police station, the drugs and paraphernalia
were then made the subject of a Request for Examination issued by Inspector Bauto. The specimens were
then turned over to the PNP Crime Laboratory Office where Forensic Chemist Jabonillo made his conclusion
that the sachets and the aluminum foil contained shabu. During trial, he testified that the specimen he
examined was the same one he brought to the court. Exhibit G or Chemistry Report No. D-086-2003 was also
presented as evidence to show that the seized items were positive for dangerous drugs. Pieced together, the
prosecutions evidence, however, does not supply all the links needed in the chain of custody rule. The
records do not tell us what happened after the seized items were brought to the police station and after
these were tested at the forensic laboratory. Doubt is now formed as to the integrity of the evidence.
The latest jurisprudence on illegal drugs cases shows a growing trend in acquittals based on reasonable
doubt. These reasonable doubt acquittals underscore the lack of strict adherence that law enforcement
agencies and prosecutors have shown with regard to the chain of custody rule.
In Malillin v. People, we laid down the chain of custody requirements that must be met in proving that the
seized drugs are the same ones presented in court: (1) testimony about every link in the chain, from the
moment the item was picked up to the time it is offered into evidence; and (2) witnesses should describe the
precautions taken to ensure that there had been no change in the condition of the item and no opportunity
for someone not in the chain to have possession of the item.[20]

Although the non-presentation of some of the witnesses who can attest to an unbroken chain of evidence
may in some instances be excused, there should be a justifying factor for the prosecution to dispense with
their testimonies.[24] Here, however, no explanation was proffered as to why key individuals who had custody
over the drugs at certain periods were not identified and/or not presented as witnesses. Uncertainty,
therefore, arises if the drugs and paraphernalia seized during the buy-bust operation on January 2003 were
the same specimens presented in court in December of that same year.
The very identity of the illegal drug is in question because of the absence of key prosecution witnesses. No
one knows if the drug seized at the time of the buy-bust operation is the same drug tested and later kept as
evidence against Barba. Though there was a stipulation during trial that the specimens submitted as
evidence yielded positive for shabu, this only touches on one link in the chain of custody. Thus, given the
failure of the prosecution to identify the continuous whereabouts of such fungible pieces of evidence, we
are unable to conclude that all elements of the crime have been established beyond reasonable doubt.
WHEREFORE, the appeal is GRANTED. The Decision of the Court of Appeals in CA-G.R. CR-H.C. No. 01587
finding accused-appellant Elsie Barba y Biazon guilty of drug pushing (Crim. Case No. Q-03-114526) and
possession of drug paraphernalia (Crim. Case No. Q-03-1145267) is REVERSED and SET ASIDE. Accusedappellant Elsie Barba y Biazon is ACQUITTED on the ground of reasonable doubt and is accordingly
immediately RELEASED from custody unless she is being lawfully held for some lawful cause.
SO ORDERED.

Lim, Sr. vs. Felix, G.R. Nos. 94054-57, G.R. Nos. 94266-69, 194 SCRA 292 , February 19, 1991
G.R. Nos. 94054-57 February 19, 1991
VICENTE LIM, SR. and MAYOR SUSANA LIM, petitioners, vs. HON. NEMESIO S. FELIX and HON. ANTONIO
ALFANE, respondents.
G.R. Nos. 94266-69 February 19, 1991
JOLLY T. FERNANDEZ, FLORENCIO T. FERNANDEZ, JR., NONILON A. BAGALIHOG, MAYOR NESTOR C. LIM
and MAYOR ANTONIO KHO, petitioners,
vs.
HON. NEMESIO S. FELIX and PROSECUTOR ANTONIO C. ALFANE,respondents.
May a Judge without ascertaining the facts through his own personal determination and relying solely on the
certification or recommendation of a prosecutor that a probable cause exists issue a warrant of arrest?
On March 17, 1989, at about 7:30 o'clock in the morning, at the vicinity of the airport road of the Masbate Domestic
Airport, located at the municipality of Masbate province of Masbate, Congressman Moises Espinosa, Sr. and his
security escorts, namely Provincial Guards Antonio Cortes, Gaspar Amaro, and Artemio Fuentes were attacked and
killed by a lone assassin. Dante Siblante another security escort of Congressman Espinosa, Sr. survived the
assassination plot, although, he himself suffered a gunshot wound.
An investigation of the incident then followed.

On October 30, 1989, Fiscal Alfane filed with the Regional Trial Court of Masbate, four (4) separate informations of
murder against the twelve (12) accused with a recommendation of no bail.
On November 21, 1989, petitioners Vicente Lim, Sr. and Susana Lim filed with us a verified petition for change of
venue. (Case No. A.M. No. 89-11-1270-MTC, formerly, G.R. Nos. 90587-90)
On December 14, 1989, we issued an en banc Resolution authorizing the change of venue from the Regional Trial
Court of Masbate to the Regional Trial Court of Makati to avoid a miscarriage of justice, to wit:
Acting on the petition for change of venue of the trial of Criminal Cases Nos. 5811, 5812, 5813, and 5814 from the
Regional Trial Court, Masbate, Masbate to any of the Regional Trial Courts at Quezon City or Makati, the Court
Resolved to (a) GRANT the aforesaid petition for transfer of venue in order to avoid miscarriage of justice (Article
VIII, Section 5(4) of the Philippine Constitution); (b) DIRECT the Clerk of Court, Regional Trial Court, Masbate,
Masbate to transmit the records of the aforesaid cases to the Executive Judge, Regional Trial Court, Makati, for
raffling among the other branches of the court; and (c) ORDER the Regional Trial Court of Masbate, Masbate to
desist from further taking cognizance of the said cases until such time that the petition is finally resolved.
The cases were raffled to Branch 56 presided by respondent Judge Nemesio S. Felix.
Petitioners Vicente Lim, Sr. and Susana Lim filed with the respondent court several motions and manifestations
which in substance prayed for the following:

Thereafter, and for the purpose of preliminary investigation, the designated investigator, Harry O. Tantiado, TSg, of
the PC Criminal Investigation Service at Camp Bagong Ibalon Legazpi City filed an amended complaint with the
Municipal Trial Court of Masbate accusing, among others, Vicente Lim, Sr., Mayor Susana Lim of Masbate
(petitioners in G.R. Nos. 9405457), Jolly T. Fernandez, Florencio T. Fernandez, Jr., Nonilon A. Bagalihog, Mayor
Nestor C. Lim and Mayor Antonio Kho (petitioners in G.R. Nos. 94266-69) of the crime of multiple murder and
frustrated murder in connection with the airport incident. The case was docketed as Criminal Case No. 9211.

1. An order be issued requiring the transmittal of the initial records of the preliminary inquiry or investigation
conducted by the Municipal Judge Barsaga of Masbate for the best enlightenment of this Honorable Court in its
personal determination of the existence of a probable cause or prima facie evidence as well as its determination of
the existence of guilt, pursuant to the mandatory mandate of the constitution that no warrant shall issue unless the
issuing magistrate shall have himself been personally convinced of such probable cause.

After conducting the preliminary investigation, the court issued an order dated July 31, 1989 stating therein that:

2. Movants be given ample opportunity to file their motion for preliminary investigation as a matter of right; and

. . . after weighing the affidavits and answers given by the witnesses for the prosecution during the preliminary
examination in searching questions and answers, concludes that a probable cause has been established for the
issuance of a warrant of arrest of named accused in the amended complaint, namely, Jimmy Cabarles, Ronnie
Fernandez, Nonilon Bagalihog, Jolly Fernandez, Florencio Fernandez, Jr., Vicente Lim, Sr., Susana Lim, Nestor Lim,
Antonio Kho, Jaime Liwanag, Zaldy Dumalag and Rene Tualla alias Tidoy. (Rollo, p. 58, G.R. Nos. 94054-57)

3. In the event that this court may later be convinced of the existence of a probable cause, to be allowed to file a
motion for reduction of bail or for admission of bail. (p. 17, Rollo, G.R. Nos. 94054-57)

xxx xxx xxx

In the same Order, the court ordered the arrest of the petitioners and recommended the amount of P200,000.00 as
bail for the provisional liberty of each of the accused.
Petitioners Jolly Fernandez and Nonilon Bagalihog filed a motion for the reduction of bail which was granted by the
court and they were allowed to post bail in the amount of P150,000.00 each. Except for Jimmy Cabarles, all the rest
of the accused posted bail at P200,000.00 each.
On August 29, 1989, the entire records of the case consisting of two hundred sixty one (261) pages were transmitted
to the Provincial Prosecutor of Masbate. Respondent Acting Fiscal Antonio C. Alfane was designated to review the
case.
On September 22, 1989, Fiscal Alfane issued a Resolution which affirmed the finding of a prima facie case against
the petitioners but differed in the designation of the crime in that the ruled that ". . . all of the accused should not only
be charged with Multiple Murder With Frustrated Murder" but for a case of MURDER for each of the killing of the four
victims and a physical injuries case for inflicting gunshot wound on the buttocks of Dante Siblante." (Annex "H",
Comment of Fiscal Alfane, p. 186, Rollo, G.R. Nos. 94054-57) A motion to reconsider the Resolution filed by
petitioners Vicente Lim, Sr. and Mayor Susana Lim was denied.

In another manifestation, the Lims reiterated that the court conduct a hearing to determine if there really exists
a prima facie case against them in the light of documents which are recantations of some witnesses in the
preliminary investigation. The motions and manifestations were opposed by the prosecution.
On July 5, 1990, the respondent court issued an order denying for lack of merit the motions and manifestations and
issued warrants of arrest against the accused including the petitioners herein. The respondent Judge said:
In the instant cases, the preliminary investigation was conducted by the Municipal Trial Court of Masbate, Masbate
which found the existence of probable cause that the offense of multiple murder was committed and that all the
accused are probably guilty thereof, which was affirmed upon review by the Provincial Prosecutor who properly filed
with the Regional Trial Court four separate informations for murder. Considering that both the two competent officers
to whom such duty was entrusted by law have declared the existence of probable cause, each information is
complete in form and substance, and there is no visible defect on its face,this Court finds it just and proper to rely on
the prosecutor's certification in each information which reads: (pp. 19-20, Rollo, G.R Nos. 94054-57; Emphasis
supplied)
xxx xxx xxx
The petitioners then filed these consolidated petitions questioning the July 5, 1990 Order.
In a Resolution dated July 17, 1990 in G.R. Nos. 94054-57, we issued ". . . a TEMPORARY RESTRAINING ORDER,
effective immediately and continuing until further orders from this Court, ordering the respondent judge or his duly

authorized representatives or agents to CEASE and DESIST from enforcing or implementing the warrant of arrest
without bail issued against the petitioners in his Order dated July 5, 1990 in Criminal Cases Nos. 5811-14.

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 another Resolution dated July 31, 1990 in G.R. Nos. 94266-69, we resolved:

The addition of the word "personally" after the word "determined" and the deletion of the grant of authority by the
1973 Constitution to issue warrants to "other respondent officers as may be authorized by law", has apparently
convinced petitioner Beltran that the Constitution now requires the judge to personally examine the complainant and
his witnesses in his determination of probable cause for the issuance of arrest. This is not an accurate interpretation.

xxx xxx xxx

. . . To ISSUE writs of (1) PRELIMINARY MANDATORY INJUNCTION, ordering and directing the respondent judge
to recall/set aside and/or annul the legal effects of the warrants of arrest without bail issued against and served upon
herein petitioners Jolly T. Fernandez, Florencio T. Fernandez, Jr. and Nonilon Bagalihog and release them from
confinement at PC-CIS Detention Center, Camp Crame, Quezon City; and (2) TEMPORARY RESTRAINING
ORDER, effective immediately and continuing until further orders from this Court, ordering the respondent judge or
his duly authorized representatives or agents, to CEASE AND DESIST from enforcing or implementing the warrants
of arrest without bail issued against petitioners Mayors Nestor C. Lim and Antonio T. Kho.
The primary issue in these consolidated petitions centers on whether or not a judge may issue a warrant of arrest
without bail by simply relying on the prosecution's certification and recommendation that a probable cause exists.
This is not a novel question. In the case of Placer v. Villanueva (126 SCRA 463 [1983]), we ruled that a judge may
rely upon the fiscal's certification of the existence of probable cause and, on the basis thereof, issue a warrant of
arrest. However, the certification does not bind the judge to come out with the warrant of arrest. This decision
interpreted the "search and seizure" provision of the 1973 Constitution which provides:
. . . no search warrant or warrant of arrest shall issue except upon probable cause to be determined by the judge, or
such other responsible officer as may be authorized by law, after examination under oath or affirmation of the
complainant and the witnesses he may produce . . .
We ruled:
. . . The issuance of a warrant is not a mere ministerial function; it calls for the exercise of judicial discretion on the
part of the issuing magistrate. This is clear from the following provisions of Section 6, Rule 112 of the Rules of Court.
Warrant of arrest, when issued. If the judge be satisfied from the preliminary examination conducted by him or by
the investigating officer that the offense complained of has been committed and that there is reasonable ground to
believe that the accused has committed it, he must issue a warrant or order for his arrest.
Under this section, the judge must satisfy himself of the existence of probable cause before issuing a warrant or
order of arrest. If on the face of the information the judge finds no probable cause, he may disregard the fiscal's
certification and require the submission of the affidavits of witnesses to aid him in arriving at a conclusion as to the
existence of a probable cause. This has been the rule since U.S. v. Ocampo (18 Phil. 1) and Amarga v. Abbas (98
Phil. 739). And this evidently is the reason for the issuance by respondent of the questioned orders of April 13, 15,
16, 19, 1982 and July 13, 1982. Without the affidavits of the prosecution witnesses and other evidence which, as a
matter of long-standing practice had been attached to the information filed in his sala, respondent found the
informations inadequate bases for the determination of probable cause. For as the ensuing events would show, after
petitioners had submitted the required affidavits, respondent wasted no time in issuing the warrants of arrest in the
case where he was satisfied that probable cause existed.
The case of Soliven v. Makasiar (167 SCRA 393 [19881) was decided after the effectivity of the 1987 Constitution.
We stated:
The second issue, raised by petitioner Beltran, calls for an interpretation of the constitutional provision on the
issuance of warrants of arrest. The pertinent provision reads:
Art. III, 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

What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself
of the existence of probable cause. In satisfying himself of the existence of probable cause for the issuance of a
warrant of arrest, the judge is not required to personally examine the complainant and his witnesses. Following
established doctrine and procedures, he shall: (1) personally evaluate the report and the supporting documents
submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest;
or (2) if on the basis thereof he finds no probable cause, he may disregard the fiscal's report and require the
submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable
cause.
Sound policy dictates this procedure, otherwise judges would be unduly laden with the preliminary examinations and
investigation of criminal complaints instead of concentrating on hearing and deciding cases filed before their courts.
The decision in People v. Honorable Enrique B. Inting, et al. (G.R. No. 88919, July 25, 1990), reiterated the above
interpretation of "personal" determination by the Judge:
We emphasize important features of the constitutional mandate that ". . . no search warrant or warrant of arrest shall
issue except upon probable cause to be determined personally by the judge . . ." (Article III, Section 2, Constitution)
First, the determination of probable cause is a function of the Judge. It is not for the Provincial Fiscal or Prosecutor
nor for the Election Supervisor to ascertain. Only the Judge and the Judge alone makes this determination.
Second, the preliminary inquiry made by a Prosecutor does not bind the Judge. It merely assists him to make the
determination of probable cause. The Judge does not have to follow what the Prosecutor presents to him. By itself,
the Prosecutor's certification of probable cause is ineffectual. It is the report, the affidavits, the transcripts of
stenographic notes (if any), and all other supporting documents behind the Prosecutor's certification which are
material in assisting the Judge to make his determination.
And third, Judges and Prosecutors alike should distinguish the preliminary inquiry which determines probable cause
for the issuance of a warrant of arrest from the preliminary investigation proper which ascertains whether the
offender should be held for trial or released. Even if the two inquiries are conducted in the course of one and the
same proceeding, there should be no confusion about the objectives. The determination of probable cause for the
warrant of arrest is made by the Judge. The preliminary investigation proper whether or not there is reasonable
ground to believe that the accused is guilty of the offense charged and, therefore, whether or not he should be
subjected to the expense, rigors and embarrassment of trial is the function of the Prosecutor.
The Court made this clear in the case of Castillo v. Villaluz (171 SCRA 39 [19891):
Judges of Regional Trial Courts (formerly Courts of First Instance) no longer have authority to conduct preliminary
investigations. That authority, at one time reposed in them under Sections 13, 14 and 16, Rule 112 of the Rules of
Court of 1964, (See Sec. 4, Rule 108, Rules of Court of 1940; People v. Solon, 47 Phil. 443, cited in Moran,
Comments on the Rules, 1980 ed., Vol. 4, pp. 115-116) was removed from them by the 1985 Rules on Criminal
Procedure, effective on January 1, 1985, (Promulgated on November 11, 1984) which deleted all provisions granting
that power to said Judges. We had occasion to point tills out in Salta v. Court of Appeals, 143 SCRA 228, and to
stress as well certain other basic propositions, namely: (1) that the conduct of a preliminary investigation is "not a
judicial function . . . (but) part of the prosecution's job, a function of the executive," (2) that whenever "there are
enough his or prosecutors to conduct preliminary investigations, courts are counseled to leave this job which is
essentially executive to them," and the fact "that a certain power is granted does not necessary mean that it should
be indiscriminately exercised.

The 1988 Amendments to the 1985 Rules on Criminal Procedure, declared effective on October 1, 1988, (The 1988
Amendments were published in the issue of Bulletin Today of October 29, 1988) did not restore that authority to
Judges of Regional Trial Courts; said amendments did not in fact deal at all with the officers or courts having
authority to conduct preliminary investigations.
This is not to say, however, that somewhere along the line RTC Judges also lost the power to make a preliminary
examination for the purpose of determining whether probable cause exists to justify the issuance of a warrant of
arrest (or search warrant). Such a power indeed, it is as much a duty as it is a power has been and remains
vested in every judge by the provisions in the Bill of Rights in the 1935, the 1973 and the present [1987]
Constitutions securing the people against unreasonable searches and seizures, thereby placing it beyond the
competence of mere Court Rule or Statute to revoke. The distinction must, therefore, be made clear while an RTC
Judge may no longer conduct preliminary investigations to ascertain whether there is sufficient ground for the filing of
a criminal complaint or information, he retains the authority, when such a pleading is filed with his court, to determine
whether there is probable cause justifying the issuance of a warrant of arrest. It might be added that this distinction
accords, rather than conflicts, with the rationale of Salta because both law and rule, in restricting to judges the
authority to order arrest, recognize the function to be judicial in nature.
We reiterate that preliminary investigation should be distinguished as to whether it is an investigation for the
determination of a sufficient ground for the filing of the information or it is an investigation for the determination of a
probable cause for the issuance of a warrant of arrest. The first kind of preliminary investigation is executive in
nature. It is part of the prosecution's job. The second kind of preliminary investigation which is more properly called
preliminary examination is judicial in nature and is lodged with the Judge. . . .
Finally in the recent case of People v. Delgado, et al. (G.R. Nos. 93419-32, September 18, 1990) there is a
statement that the judge may rely on the resolution of COMELEC to file the information by the same token that it may
rely on the certification made by the prosecutor who conducted the preliminary investigation in the issuance of the
warrant of arrest. We, however, also reiterated that ". . . the court may require that the record of the preliminary
investigation be submitted to it to satisfy itself that there is probable cause which will warrant the issuance of a
warrant of arrest." (Section 2, Article III, Constitution). Reliance on the COMELEC resolution or the Prosecutor's
certification presupposes that the records of either the COMELEC or the Prosecutor have been submitted to the
Judge and he relies on the certification or resolution because the records of the investigation sustain the
recommendation. The warrant issues not on the strength of the certification standing alone but because of the
records which sustain it.
It is obvious from the present petition that notwithstanding the above decisions, some Judges are still bound by the
inertia of decisions and practice under the 1935 and 1973 Constitutions and are sadly confused or hesitant.
Prosecutors are also interested in a clear cut ruling. We will, therefore, restate the rule in greater detail and hopefully
clearer terms.
There is no problem with search warrants which are relatively fewer and far between and where there is no
duplication of work between the Judge and the Prosecutor. The problem lies with warrants of arrest especially in
metropolitan or highly urban areas. If a Judge has to personally question each complainant and witness or go over
the records of the Prosecutor's investigation page by page and word for word before he acts on each of a big pile of
applications for arrest warrants on his desk, he or she may have no more time for his or her more important judicial
functions.
At the same time, the Judge cannot ignore the clear words of the 1987 Constitution which requires ". . . probable
cause to be personallydetermined by the judge . . .", not by any other officer or person.
If a Judge relies solely on the certification of the Prosecutor as in this case where all the records of the investigation
are in Masbate, he or she has not personally determined probable cause. The determination is made by the
Provincial Prosecutor. The constitutional requirement has not been satisfied. The Judge commits a grave abuse of
discretion.
The records of the preliminary investigation conducted by the Municipal Court of Masbate and reviewed by the
respondent Fiscal were still in Masbate when the respondent Fiscal issued the warrants of arrest against the

petitioners. There was no basis for the respondent Judge to make his own personal determination regarding the
existence of a probable cause for the issuance of a warrant of arrest as mandated by the Constitution. He could not
possibly have known what transpired in Masbate as he had nothing but a certification. Significantly, the respondent
Judge denied the petitioners' motion for the transmittal of the records on the ground that the mere certification and
recommendation of the respondent Fiscal that a probable cause exists is sufficient for him to issue a warrant of
arrest.
We reiterate the ruling in Soliven v. Makasiar that the Judge does not have to personally examine the complainant
and his witnesses. The Prosecutor can perform the same functions as a commissioner for the taking of the evidence.
However, there should be a report and necessary documents supporting the Fiscal's bare certification. All of these
should be before the Judge.
The extent of the Judge's personal examination of the report and its annexes depends on the circumstances of each
case. We cannot determine beforehand how cursory or exhaustive the Judge's examination should be. The Judge
has to exercise sound discretion for, after all, the personal determination is vested in the Judge by the Constitution. It
can be as brief or as detailed as the circumstances of each case require. To be sure, the Judge must go beyond the
Prosecutor's certification and investigation report whenever necessary. He should call for the complainant and
witnesses themselves to answer the court's probing questions when the circumstances of the case so require.
It is worthy to note that petitioners Vicente Lim, Sr. and Susana Lim presented to the respondent Judge documents
of recantation of witnesses whose testimonies were used to establish a prima facie case against them. Although, the
general rule is that recantations are not given much weight in the determination of a case and in the granting of a
new trial (Tan Ang Bun v. Court of Appeals, et al. G.R. No. L-47747, February 15, 1990, People v. Lao Wan Sing, 46
SCRA 298 [1972]) the respondent Judge before issuing his own warrants of arrest should, at the very least, have
gone over the records of the preliminary examination conducted earlier in the light of the evidence now presented by
the concerned witnesses in view of the "political undertones" prevailing in the cases. Even the Solicitor General
recognized the significance of the recantations of some witnesses when he recommends a reinvestigation of the
cases, to wit:
It must be pointed out, however, that among the documents attached to this Petition are affidavits of recantation
subsequently executed by Jimmy Cabarles and Danilo Lozano and an affidavit executed by one, Camilo Sanano,
father of the complainant's witnesses, Renato and Romeo Sanano. It was precisely on the strength of these earlier
written statements of these witnesses that the Municipal Trial Court of Masbate found the existence of a prima
facie case against petitioners and accordingly recommended the filing of a Criminal Information. Evidently, the same
written statements were also the very basis of the "Fiscal's Certification", since the attached affidavits of recantation
were not yet then available. Since the credibility of the prosecution witnesses is now assailed and put in issue and,
since the petitioners have not yet been arraigned, it would be to the broader interest of justice and fair play if a
reinvestigation of this case be had to secure the petitioners against hasty prosecution and to protect them from an
open and public accusation of crime, from the trouble, expense and anxiety of a public trial, and also to protect the
State from useless and expensive trials (Salonga v. Pao G.R. No. 59524, February 18,1985). (Rollo of G.R. Nos.
94054-56, pp. 200-201)
We reiterate that in making the required personal determination, a Judge is not precluded from relying on the
evidence earlier gathered by responsible officers. The extent of the reliance depends on the circumstances of each
case and is subject to the Judge's sound discretion. However, the Judge abuses that discretion when having no
evidence before him, he issues a warrant of arrest.
Indubitably, the respondent Judge committed a grave error when he relied solely on the Prosecutor's certification and
issued the questioned Order dated July 5, 1990 without having before him any other basis for his personal
determination of the existence of a probable cause.
WHEREFORE, the instant petitions are hereby GRANTED. The questioned Order of respondent Judge Nemesio S.
Felix of Branch 56, Regional Trial Court of Makati dated July 5, 1990 is declared NULL and VOID and SET ASIDE.
The Temporary Restraining Orders and Preliminary Mandatory Injunction issued in the instant Petitions are made
PERMANENT. SO ORDERED.

ATTY. ERNESTO A. TABUJARA III and CHRISTINE

S. DAYRIT,
Petitioners,

G.R. No. 175162

Present:
YNARES-SANTIAGO, J.,
Chairperson,
CARPIO,*
AZCUNA,**
CHICO-NAZARIO, and
NACHURA, JJ.

- versus -

PEOPLE OF THE PHILIPPINESand DAISY AFABLE,

Respondents.

employee of Miladay Jewels, Inc., a company owned by the Dayrits and who was then being administratively
investigated in connection with missing jewelries. Despite several summons to appear, respondent went on AWOL
(absence without official leave).
Judge Calixtro O. Adriatico of the Municipal Trial Court of Meycauayan, Bulacan, Branch II, conducted the
preliminary examination. On 7 January 2000, he issued an Order dismissing the complaints for lack of probable
cause, thus:
After a careful perusal of the allegation setforth in the complaint-affidavit, taking into
consideration the allegation likewise setforth in the counter-affidavit submitted by the
respondents and that of their witnesses, the Court finds no probable cause to proceed with trial
on the merits of the above-entitled cases.

Promulgated:
October 29, 2008
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION

The Court believes and so holds that the instant complaints are merely leverage to the
estafa[4] case already filed against private complainant herein Daisy Afable by the Miladay
Jewels Inc. wherein respondent Atty. Tabujara III is its legal counsel; while respondent Dayrit
appears to be one of the officers of the said company.
As could be gleaned from the record, private complainant herein Daisy Afable is being
charged with the aforestated estafa case for having allegedly embezzled several pieces of
jewelry from the Miladay Jewels Inc., worth P2,177,156.00.

CHICO-NAZARIO, J.:
WHEREFORE, let these cases be dismissed for lack of probable cause.[5]
This petition assails the 24 February 2004 Decision of the Court of Appeals in CA-G.R. SP No. 63280
denying petitioners petition for review and directing the Municipal Trial Court of Meycauayan, Bulacan, Branch 11, to
proceed with the trial of Criminal Cases Nos. 99-29037 and 99-29038, as well as the 23 October 2006 Resolution
denying the motion for reconsideration.

Respondent filed a Motion for Reconsideration alleging that when she filed the complaints for grave
coercion and trespass to dwelling on 17 September 1999 against petitioners, no information for estafa has yet been
filed against her. In fact, the information was filed on 5 October 1999.

The antecedent facts are as follows:

On 17 September 1999, respondent Daisy Dadivas-Afable simultaneously filed two criminal complaints
against petitioners for Grave Coercion and Trespass to Dwelling. The complaints read, thus:
Art. 286 (Grave Coercion)
That on the 14th day of September 1999 at around 6:00 oclock in the morning more or
less, in Brgy. Iba, Municipality of Meycauayan, Province of Bulacan, Republic of the Philippines
and within the jurisdiction of this Honorable Court, the above-named accused without authority
of law, by conspiring, confederating and mutually helping to (sic) one another, did then and there
willfully, unlawfully and feloniously forced to go with them one DAISY DADIVAS-AFABLE and
against the latters will.
Art. 280, par. 2 (Trespass to Dwelling)
That on the 14th day of September 1999 at around 6:00 oclock in the morning more or
less, in Brgy. Iba, Municipality of Meycauayan, Province of Bulacan, Republic of the Philippines
and within the jurisdiction of this Honorable Court, the above-named accused being then a (sic)
private persons, by conspiring, confederating and mutually helping to (sic) one another, did then
and there willfully, unlawfully and feloniously enter the house owned by one DAISY DADIVASAFABLE by opened the gate and against the latters will.[1]

In their Opposition to the Motion for Reconsideration, petitioners argued that even before respondent filed
the criminal complaints for grave coercion and trespass to dwelling, she was already being administratively
investigated for the missing jewelries; that she was ordered preventively suspended pending said investigation; that
the theft of the Miladay jewels was reported to the Makati Police on 7 September 1999 with respondent Afable being
named as the primary suspect; that on 17 September 1999, which corresponded to the date of filing of the criminal
complaints against petitioners, the employment of respondent with Miladay, Jewels, Inc. was terminated. Petitioners
further alleged that respondent filed the criminal complaints for grave coercion and trespass to dwelling as leverage
to compel petitioners to withdraw the estafa case.
On 2 May 2000, Judge Adriatico issued an Order reversing his earlier findings of lack of probable
cause. This time, he found probable cause to hold petitioners for trial and to issue warrants of arrest, thus:
Acting on the Motion for Reconsideration filed by the private complainant herein on
January 17, 2000, with Opposition filed by the accused on January 27, 2000, taking into
consideration the Manifestation/Brief Memorandum filed by the said private complainant on
March 4, 2000, the Court found cogent reason to reconsider its order dated January 7, 2000.

On 18 October 1999, petitioners filed their Joint Counter-Affidavit. [2] Thereafter, or on 21 December 1999,
petitioner Tabujara filed a Supplemental Counter-Affidavit.[3]

The sworn allegation/statement of witness Mauro V. de Lara, which was inadvertently

overlooked by the undersigned, and which states, among other things, that said witness saw the
private complainant herein being forcibly taken by three persons, referring very apparently to the
accused herein, from her residence is already sufficient to establish a prima facie evidence or
probable cause against the herein accused for the crimes being imputed against them. It is
likewise probable that accused herein could have committed the crime charged in view of their
belief that the private complainant herein had something to do with the alleged loss or
embezzlement of jewelries of the Miladay Jewels.

Petitioners denied the allegations against them. They argued that on 14 September 1999, they went to the
house of respondent to thresh out matters regarding some missing pieces of jewelry. Respondent was a former

WHEREFORE, in order to ferret out the truth/veracity of the complainants allegation

and in order not to frustrate the ends of justice, let the above-entitled cases now be set for trial.

Let therefore warrant of arrest be issued against all the accused in Criminal Case No.
99-29038 (Grave Coercions), fixing their bail for their provisional liberty in the amount of
P12,000.00 for each of them.

The dispositive portion of the Decision of the Regional Trial Court, reads:

As regard Criminal Case No. 99-29037 (Trespass to Dwelling) the same shall be
governed by the Rules on Summary Procedure.[6]

RESPONSIVE OF ALL THE FOREGOING, the instant Petition for the Annulment of
the Orders of the respondent Judge dated May 2, 2000 and July 14, 2000 in criminal cases nos.
99-29037 and 99-29038 (MTC-Meycauayan, Branch 2) should be as it is hereby denied for lack
of merit.

Petitioners filed a motion for reconsideration insisting that the alleged affidavit of Mauro V. de Lara on
which the court a quo based its findings of probable cause was hearsay because it was not sworn before Judge
Adriatico; that De Lara did not personally appear before the investigating judge during preliminary
investigation. However, petitioners motion for reconsideration was denied in the Order dated 14 July 2000, thus:

ACCORDINGLY, the Presiding Judge of branch II, the Hon. Calixto O. Adriatico may
now proceed to hear and decide crim. Cases nos. 99-29037 and 99-29038 pending before that
Court.[12]

Acting on the Motion for Reconsideration filed by the accused, thru counsel. With
comment from the counsel of the private complainant, the Court resolves to deny the same there
being no cogent reason to reconsider the Court order dated May 2, 2000.

Petitioners filed a Petition for Review before the Court of Appeals asserting that the court a quo acted with
grave abuse of discretion in basing its findings of probable cause and ordering the issuance of warrants of arrest
solely on the unsworn statement of Mauro De Lara who never appeared during preliminary investigation and who
was not personally examined by the investigating judge. Moreover, they argued that the 18 September 2000 Order
was void because it was issued by the Municipal Trial Court while the temporary restraining order issued by the
Regional Trial Court enjoining the court a quo to proceed further with the criminal complaints was in force.

The Court has resolved to try the above-entitled cases on the merits so as to ferret out
the truth of the private complainants allegations and there being probable cause to warrant
criminal prosecution of the same.
The accuseds contention that the statement of witness Mauro de Lara is bereft of
credibility and that the complaints at bar were initiated merely for harassment purposes could be
ventilated well in a full blown trial.
WHEREFORE, in view of the foregoing reason, let the trial of these cases proceed as
already scheduled.[7]
Petitioners moved for clarificatory hearings which were conducted on 23 August 2000 and 31 August
2000. However, before the court a quo could render a resolution based on said clarificatory hearings, petitioners filed
on 15 September 2000 a petition for certiorari before the Regional Trial Court with prayer for issuance of temporary
restraining order and writ of preliminary injunction. [8] Petitioners sought to annul the 2 May 2000 and 14 July
2000 Orders of the court a quo for having been issued with grave abuse of discretion. Petitioners argued that the
court a quo gravely abused its discretion in issuing said Orders finding probable cause and ordering the issuance of
warrants of arrest based solely on the unsworn statement of Mauro V. de Lara who never appeared during
preliminary investigation and who was not personally examined by the investigating judge.
On 18 September 2000, Executive Judge Danilo A. Manalastas of the Regional Trial Court of Malolos,
Bulacan, Branch 7, issued an Order [9] granting a 72-hour temporary restraining order and enjoining the Municipal
Trial Court from proceeding with the prosecution of petitioners in Criminal Case Nos. 99-29037 and 99-29038.
The case was thereafter raffled to Branch 79 which rendered its Decision [10] denying the petition for
annulment of the 2 May 2000 and 14 July 2000 Orders of the Municipal Trial Court. The Regional Trial Court found
that after conducting clarificatory hearings, the court a quo issued an Order on 18 September 2000, finding probable
cause. The Regional Trial Court further ruled that any defect in the issuance of the 2 May 2000 and 14 July 2000
Orders finding probable cause based solely on the unsworn statement of Mauro V. de Lara who failed to appear
during the preliminary examination and who was not personally examined by the investigating judge, was cured by
the issuance of the 18 September 2000 Order. The Regional Trial Court reasoned, thus:
While it is true that respondent Judge Hon. Calixto O. Adriatico dismisses both
criminal cases last January 7, 2000 finding no probable cause and later on reverse himself by
issuing the question Order dated May 2, 2000 alleging among others that said Judge
inadvertently overlooked the statement of witness Mauro V. De Lara, the stubborn facts remain
that whatever defects, or shortcomings on the parts of the respondent Judge was cured when he
conducted clarificatory examination on the dates earlier mentioned in this Order.[11]

However, the Court of Appeals denied the petition on the ground that petitioners resorted to the wrong
mode of appeal; i.e., instead of an ordinary appeal, petitioners filed a petition for review. [13] The dispositive portion of
the Decision of the Court of Appeals, reads:
WHEREFORE, in view of the foregoing, the instant Petition for Review is hereby
DENIED. The Municipal Trial Court of Meycauayan, Bulacan, Branch II is directed to proceed
with the trial of Criminal Case Nos. 99-29037 and 99-29038 and to dispose of them with
deliberate dispatch.[14]
Petitioners filed a motion for reconsideration but it was denied. [15] Hence, the instant petition raising the
following assignment of errors:
I.
THE COURT OF APPEALS ERRED IN NOT RULING THAT THE TRIAL COURT HAD ACTED
WITH GRAVE ABUSE OF DISCRETION IN BASING ITS FINDING OF PROBABLE CAUSE TO
HOLD PETITIONERS FOR TRIAL ON THE MERITS AND ISSUANCE OF WARRANTS OF
ARREST AGAINST THEM, UPON AN UNSWORN STATEMENT OF A WITNESS WHO NEVER
APPEARED BEFORE, NOR WAS PERSONALLY EXAMINED BY, THE TRIAL COURT.
A. THE CONSTITUTION GUARANTEES THAT NO WARRANT OF
ARREST SHALL ISSUE EXCEPT UPON PROBABLE CAUSE TO BE
DETERMINED PERSONALLY BY THE JUDGE AND AFTER PERSONALLY
EXAMINING UNDER OATH THE COMPLAINANT AND WITNESSES.
II.
PETITIONERS ASSERT THEIR RIGHT GUARANTEED BY THE CONSTITUTION WHICH
TAKES PRECEDENCE OVER RULES OF PROCEDURE OR TECHNICALITIES.
A. IT IS WELL-SETTLED THAT THIS HONORABLE COURT IS BOUND BY
THE ALLEGATIONS IN THE PETITION AND NOT BY ITS CAPTION. [16]

Petitioners insist that the Orders of the court a quo dated 2 May 2000 and 14 July 2000 should be annulled for
having been issued with grave abuse of discretion because the finding of probable cause was based solely on the
unsworn statement of Mauro De Lara who never appeared during the preliminary examination. Petitioners also
allege that since De Lara never appeared before the investigating judge, his statement was hearsay and cannot be
used as basis for finding probable cause for the issuance of warrant of arrest or to hold petitioners liable for
trial. Granting that the statement of De Lara was subscribed before Judge Paguio, the same cannot be used as basis
because the law requires that the statement be sworn to before the investigating judge and no other.
In its Comment, respondent People of the Philippines argue that the Court of Appeals correctly dismissed petitioners
petition because they resorted to the wrong mode of appeal.
On the other hand, respondent avers that the issue on the propriety of the issuance by the court a quo of the 2 May
2000 and 14 July 2000 Orders has become moot because clarificatory hearings were thereafter conducted and
another Order dated 18 September 2000 was issued finding probable cause against petitioners; and, that the
statement of Mauro De Lara was subscribed and sworn to before Judge Orlando Paguio although it was Judge
Calixtro Adriatico who acted as the investigating judge.

In those rare cases to which we did not stringently apply the procedural rules, there always existed a clear
need to prevent the commission of a grave injustice. Our judicial system and the courts have always tried to
maintain a healthy balance between the strict enforcement of procedural laws and the guarantee that every litigant is
given the full opportunity for a just and proper disposition of his cause.[22]
The emerging trend in the rulings of this Court is to afford every party litigant the amplest opportunity for
the proper and just determination of his cause, free from the constraints of technicalities. Time and again, we have
consistently held that rules must not be applied so rigidly as to override substantial justice.[23]
The Court of Appeals should have looked beyond the alleged technicalities to open the way for the
resolution of the substantive issues in the instance case. The Court of Appeals, thus, erred in dismissing petitioners
petition for review. By dismissing the said Petition, the Court of Appeals absolutely foreclosed the resolution of all the
substantive issues petitioners were repeatedly attempting to raise before the Court of Appeals.
We now proceed to the resolution of the substantive issues raised by the petitioners.
Section 2, Article III, of the 1987 Constitution, provides:

The petition is meritorious.

Before proceeding to the substantive issues, we first address the issue of whether or not the Court of Appeals
properly denied the petition for review filed by the petitioners under Rule 42 of the Rules of Court.
In denying the petition for review under Section 1, [17] Rule 42 of the 1997 Rules of Court filed by petitioners, the
appellate court stressed that they availed of the wrong mode of review in bringing the case to it since the petitioners
filed an original action under Rule 65 of the Rules of Court to the RTC, the remedy availed of should have been an
appeal under Section 2(a) of Rule 41 of the Rules of Court:
SEC. 2. Modes of appeal.
(a) Ordinary appeal. The appeal to the Court of Appeals in cases decided by the Regional Trial
Court in the exercise of its original jurisdiction shall be taken by filing a notice of appeal with
the court which rendered the judgment or final order appealed from and serving a copy thereof
upon the adverse party. No record on appeal shall be required except in special proceedings
and other cases of multiple or separate appeals where the law or these Rules so require. In
such cases, the record on appeal shall be filed and served in like manner. (Emphasis supplied.)
It is only when the decision of the RTC was rendered in the exercise of appellate jurisdiction would a petition for
review under Rule 42 be proper[18]

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.
It is constitutionally mandated that a warrant of arrest shall issue only upon finding of probable cause personally
determined by the judge after examination under oath or affirmation of the complainant and the witnesses he/she
may produce, and particularly describing the person to be seized.
To determine the existence of probable cause, a preliminary investigation is conducted. A preliminary investigation is
an inquiry or proceeding to determine whether there is sufficient ground to engender a well-founded belief that a
crime has been committed and the respondent is probably guilty thereof, and should be held for trial.[24]
A preliminary investigation is required to be conducted before the filing of a complaint or information for an
offense where the penalty prescribed by law is at least 4 years, 2 months and 1 day without regard to the fine.
[25]
Thus, for cases where the penalty prescribed by law is lower than 4 years, 2 months and 1 day, a criminal
complaint may be filed directly with the prosecutor or with the Municipal Trial court. In either case, the investigating
officer (i.e., the prosecutor or the Municipal Trial Court Judge) is still required to adhere to certain procedures for the
determination of probable cause and issuance of warrant of arrest.

We do not agree in the conclusion arrived at by the Court of Appeals.

The present controversy involved petitioners sacrosanct right to liberty, which is protected by the
Constitution. No person should be deprived of life, liberty, or property without due process of law.[19]
While it is true that rules of procedure are intended to promote rather than frustrate the ends of justice, and while the
swift unclogging of the dockets of the courts is a laudable objective, it nevertheless must not be met at the expense
of substantial justice.[20]

In the instant case, respondent directly filed the criminal complaints against petitioners for grave coercion and
trespass to dwelling before the Municipal Trial Court. The penalty prescribed by law for both offenses is arresto
mayor, which ranges from 1 month and 1 day to 6 months. Thus, Section 9, Rule 112 of the Rules of Court applies,
to wit:
SEC. 9. Cases not requiring a preliminary investigation nor covered by the Rule on Summary
Procedure.
xxxx

The Court has allowed some meritorious cases to proceed despite inherent procedural defects and
lapses. This is in keeping with the principle that rules of procedure are mere tools designed to facilitate the
attainment of justice, and that strict and rigid application of rules which would result in technicalities that tend to
frustrate rather than promote substantial justice must always be avoided. It is a far better and more prudent cause of
action for the court to excuse a technical lapse and afford the parties a review of the case to attain the ends of
justice, rather than dispose of the case on technicality and cause grave injustice to the parties, giving a false
impression of speedy disposal of cases while actually resulting in more delay, if not a miscarriage of justice. [21]

(b) If filed with the Municipal Trial Court. If the complaint or information is filed with the Municipal
Trial Court or Municipal Circuit Trial Court for an offense covered by this section, the procedure
in section 3(a) of this Rule shall be observed. If within ten (10) days after the filing of the
complaint or information, the judge finds no probable cause after personally evaluating the
evidence, or after personally examining in writing and under oath the complainant and his
witnesses in the form of searching questions and answers, he shall dismiss the same. He may,
however, require the submission of additional evidence, within ten (10) days from notice, to

determine further the existence of probable cause. If the judge still finds no probable cause
despite the additional evidence, he shall, within ten (10) days from its submission or expiration of
said period, dismiss the case. When he finds probable cause, he shall issue a warrant of
arrest or a commitment order if the accused had already been arrested, and hold him for
trial. However, if the judge is satisfied that there is no necessity for placing the accused
under custody, he may issue summons instead of a warrant of arrest. (Emphasis supplied.)

When the investigating judge relied solely on the affidavit of witness De Lara which was not sworn to before him and
whom he failed to examine in the form of searching questions and answers, he deprived petitioners of the
opportunity to test the veracity of the allegations contained therein. Worse, petitioners arguments that De Laras
affidavit was hearsay was disregarded by the investigating judge despite the fact that the allegations therein were
completely rebutted by petitioners and their witnesses affidavits, all of whom appeared before and were personally
examined by the investigating judge. It was thus incorrect for the court a quo to rule thus:

Corollarily, Section 6 of the same Rule provides:

SEC. 6. When warrant of arrest may issue. x x x
(b) By the Municipal Trial Court. x x x [T]he judge may issue a warrant of arrest if he finds after
an examination in writing and under oath of the complainant and his witnesses in the form of
searching questions and answers, that a probable cause exists and that there is a necessity of
placing the respondent under immediate custody in order not to frustrate the ends of justice.
Clearly, Judge Adriatico gravely abused his discretion in issuing the assailed 2 May 2000 and 14 July 2000 Orders
finding probable cause to hold petitioners liable for trial and to issue warrants of arrest because it was
based solely on the statement of witness Mauro De Lara whom Judge Adriatico did not personally examine in writing
and under oath; neither did he propound searching questions. He merely stated in the assailed 2 May 2000 Order
that he overlooked the said statement of De Lara; nevertheless, without conducting a personal examination on said
witness or propounding searching questions, Judge Adriatico still found De Laras allegations sufficient to establish
probable cause. Plainly, this falls short of the requirements imposed by no less than the Constitution.

The accuseds contention that the statement of witness Mauro de Lara is bereft of
credibility and that the complaints at bar were initiated merely for harassment purposes could be
ventilated well in a full blown trial.[27]
In sum, De Laras affidavit cannot be relied upon by the court a quo for its finding of probable cause.
In addition, this Court finds that the warrants of arrest were precipitously issued against
petitioners. Deprivation of a citizens liberty through the coercive process of a warrant of arrest is not a matter which
courts should deal with casually. Any wanton disregard of the carefully-wrought out processes established pursuant
to the Constitutions provisions on search warrants and warrants of arrest is a serious matter primarily because its
effects on the individual wrongly-detained are virtually irremediable. [28]

In Sangguniang Bayan of Batac v. Judge Albano, [26] the Court found respondent judge guilty of ignorance of the law
because he failed to comply with the procedure on the issuance of warrant of arrest, thus:

The procedure described in Section 6 of Rule 112 is mandatory because failure to follow the same would
amount to a denial of due process. With respect to the issuance by inferior courts of warrants of arrest, it is
necessary that the judge be satisfied that probable cause exists: 1) through an examination under oath and in
writing of the complainant and his witnesses; which examination should be 2) in the form of searching questions and
answers. This rule is not merely a procedural but a substantive rule because it gives flesh to two of the most
sacrosanct guarantees found in the fundamental law: the guarantee against unreasonable searches and seizures
and the due process requirement.[29]

Failure to comply with such procedure will make him administratively liable. In the case at
bar, respondent judge issued several warrants of arrest without examining the
complainant and his witnesses in writing and under oath, in violation of Section 6 of Rule
112 which provides:

The issuance of warrants of arrest is not mandatory. The investigating judge must find that there is a
necessity of placing the petitioners herein under immediate custody in order not to frustrate the ends of justice.
[30]
Perusal of the records shows no necessity for the immediate issuance of warrants of arrest. Petitioners are not
flight risk and have no prior criminal records.

Sec. 6. When warrant of arrest may issue. x x x

(b) By the Municipal Trial Court. If the municipal trial judge conducting the
preliminary investigation is satisfied after an examination in writing and
under oath of the complainant and his witnesses in the form of searching
questions and answers, that a probable cause exists and that there is a
necessity of placing the respondent under immediate custody in order not to
frustrate the ends of justice, he shall issue a warrant of arrest.
The records show that respondent judge has violated the rules on preliminary investigation and
issuance of a warrant of arrest since the start of his term as municipal judge in Batac, Ilocos
Norte in September 1991. The gross ignorance of respondent judge has immensely prejudiced
the administration of justice. Parties adversely affected by his rulings dismissing their complaints
after preliminary investigation have been denied their statutory right of review that should have
been conducted by the provincial prosecutor. His practice of issuing warrants of arrest
without examining the complainants and their witnesses is improvident and could have
necessarily deprived the accused of their liberty however momentary it may be. Our
Constitution requires that all members of the judiciary must be of proven competence, integrity,
probity and independence. Respondent judges stubborn adherence to improper procedures and
his constant violation of the constitutional provision requiring him to personally examine
the complainant and the witness in writing and under oath before issuing a warrant of
arrest makes him unfit to discharge the functions of a judge.

Respondents contention that any defect in the 2 May 2000 and 14 July 2000 Orders of the court a quo has
been cured by its 18 September 2000 Order is flawed. It will be recalled that on 15 September 2000, petitioners filed
a petition for certiorari before the Regional Trial Court of Meycauayan, Bulacan. On 18 September 2000, Executive
Judge Manalastas issued a temporary restraining order enjoining the court a quo from conducting further
proceedings in Criminal Cases Nos. 99-29037 and 99-29038. However, in contravention of said restraining order, the
court a quo issued its Order on even date, i.e., 18 September 2000, finding probable cause against petitioners
holding them liable for trial and ordering the issuance of warrants of arrest. Considering that the court a quos 18
September 2000 Order was issued during the effectivity of the temporary restraining order, the same is considered of
no effect.
WHEREFORE, the petition is GRANTED. The assailed 24 February 2004 Decision of the Court of Appeals
in CA-G.R. SP No. 63280 denying petitioners petition for review and directing the Municipal Trial Court of
Meycauayan, Bulacan, Branch 11, to proceed with the trial of Criminal Cases Nos. 99-29037 and 99-29038, as well
as the 23 October 2006 Resolution denying the motion for reconsideration, are REVERSED and SET ASIDE. The
Municipal Trial Court of Meycauayan, Bulacan, Branch 11, isDIRECTED to dismiss Criminal Cases Nos. 99-29037
and 99-29038 for lack of probable cause and to quash the warrants of arrest against petitioners for having been
irregularly and precipitously issued.
SO ORDERED.

TEODORO C. BORLONGAN, JR.,CORAZON M. BEJASA,

ARTURO E.
MANUEL, JR., ERIC L. LEE, P.
SIERVO H. DIZON, BENJAMIN DE
LEON, DELFIN C. GONZALES, JR.,
and BEN YU LIM, JR., Petitioners,

G.R. No. 143591

Enrique Montilla III. Said documents were presented in an attempt to show that the respondent was appointed as
agent by ISCI and not by Urban Bank or by the petitioners.

Present:

In view of the introduction of the above-mentioned documents, Atty. Pea filed his Complaint-Affidavit[9] with the Office
of the City Prosecutor, Bago City.[10] He claimed that said documents were falsified because the alleged signatories
did not actually affix their signatures, and the signatories were neither stockholders nor officers and employees of
ISCI.[11] Worse, petitioners introduced said documents as evidence before the RTC knowing that they were falsified.

BRION, J.,
Acting Chairperson,
DEL CASTILLO,
VILLARAMA, JR.,*
PEREZ, and
MENDOZA, JJ.**

- versus -

MAGDALENO M. PEA and HON.

MANUEL Q. LIMSIACO, JR., as Judge Designate of the
Municipal Trial Court in Cities, Bago City,
Respondents.
Promulgated:
May 5, 2010
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

PEREZ, J.:

The pivotal issue in this case is whether or not the Court of Appeals, in its Decision[1] dated 20 June 2000
in CA-G.R. SP No. 49666, is correct when it dismissed the petition for certiorari filed by petitioners Teodoro C.
Borlongan, Jr., Corazon M. Bejasa, Arturo E. Manuel, Jr., Benjamin de Leon, P. Siervo H. Dizon, Delfin C. Gonzales,
Jr., Eric L. Lee and Ben Yu Lim, Jr., and ruled that the Municipal Trial Court in Cities (MTCC), Bago City, did not
gravely abuse its discretion in denying the motion for reinvestigation and recall of the warrants of arrest in Criminal
Case Nos. 6683, 6684, 6685, and 6686.
The factual antecedents of the case are as follows:
Respondent Atty. Magdaleno M. Pea (Atty. Pea) instituted a civil case for recovery of agents compensation and
expenses, damages, and attorneys fees[2] against Urban Bank and herein petitioners, before the Regional Trial Court
(RTC) of Negros Occidental, Bago City. The case was raffled to Branch 62 and was docketed as Civil Case No.
754. Atty. Pea anchored his claim for compensation on the Contract of Agency [3] allegedly entered into with the
petitioners, wherein the former undertook to perform such acts necessary to prevent any intruder and squatter from
unlawfully occupying Urban Banks property located along Roxas Boulevard, Pasay City. Petitioners filed a Motion to
Dismiss[4] arguing that they never appointed the respondent as agent or counsel. Attached to the motion were the
following documents: 1) a Letter[5] dated 19 December 1994 signed by Herman Ponce and Julie Abad on behalf of
Isabela Sugar Company, Inc. (ISCI), the original owner of the subject property; 2) an unsigned Letter [6] dated 7
December 1994 addressed to Corazon Bejasa from Marilyn G. Ong; 3) a Letter [7] dated 9 December 1994 addressed
to Teodoro Borlongan, Jr. and signed by Marilyn G. Ong; and 4) a Memorandum [8] dated 20 November 1994 from

In a Resolution[12] dated 24 September 1998, the City Prosecutor found probable cause for the indictment of
petitioners for four (4) counts of the crime of Introducing Falsified Documents, penalized by the second paragraph of
Article 172 of the Revised Penal Code. The City Prosecutor concluded that the documents were falsified because
the alleged signatories untruthfully stated that ISCI was the principal of the respondent; that petitioners knew that the
documents were falsified considering that the signatories were mere dummies; and that the documents formed part
of the record of Civil Case No. 754 where they were used by petitioners as evidence in support of their motion to
dismiss, and then adopted in their answer and in their Pre-Trial Brief. [13] Subsequently, the corresponding
Informations[14] were filed with the MTCC, Bago City. The cases were docketed as Criminal Case Nos. 6683, 6684,
6685, and 6686. Thereafter, Judge Primitivo Blanca issued the warrants[15] for the arrest of the petitioners.
On 1 October 1998, petitioners filed an Omnibus Motion to Quash, Recall Warrants of Arrest and/or For
Reinvestigation.[16] Petitioners insisted that they were denied due process because of the non-observance of the
proper procedure on preliminary investigation prescribed in the Rules of Court. Specifically, they claimed that they
were not afforded the right to submit their counter-affidavit. Then they argued that since no such counter-affidavit and
supporting documents were submitted by the petitioners, the trial judge merely relied on the complaint-affidavit and
attachments of the respondent in issuing the warrants of arrest, also in contravention with the Rules of
Court. Petitioners further prayed that the information be quashed for lack of probable cause. Moreover, one of the
accused, i.e., Ben Lim, Jr., is not even a director of Urban Bank, contrary to what complainant stated.Lastly,
petitioners posited that the criminal cases should have been suspended on the ground that the issue being threshed
out in the civil case is a prejudicial question.
In an Order[17] dated 13 November 1998, the MTCC denied the omnibus motion primarily on the ground
that preliminary investigation was not available in the instant case which fell within the jurisdiction of the first-level
court. The court, likewise, upheld the validity of the warrant of arrest, saying that it was issued in accordance with the
Rules of Court. Besides, the court added, petitioners could no longer question the validity of the warrant since they
already posted bail. The court also believed that the issue involved in the civil case was not a prejudicial question,
and, thus, denied the prayer for suspension of the criminal proceedings. Lastly, the court was convinced that the
Informations contained all the facts necessary to constitute an offense.
Petitioners immediately instituted a special civil action for Certiorari and Prohibition with Prayer for Writ of Preliminary
Injunction and Temporary Restraining Order (TRO) before the Court of Appeals, ascribing grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of the MTCC in issuing and not recalling the warrants of arrest,
reiterating the arguments in their omnibus motion. [18] They, likewise, questioned the courts conclusion that by posting
bail, petitioners already waived their right to assail the validity of the warrants of arrest.
On 20 June 2000, the Court of Appeals dismissed the petition.[19] Thus, petitioners filed the instant petition for review
on certiorari under Rule 45 of the Rules of Court, raising the following issues:
A.
Where the offense charged in a criminal complaint is not cognizable by the Regional Trial Court
and not covered by the Rule on Summary Procedure, is the finding of probable cause required
for the filing of an Information in court?
If the allegations in the complaint-affidavit do not establish probable cause, should not
the investigating prosecutor dismiss the complaint, or at the very least, require the respondent to
submit his counter-affidavit?
B.
Can a complaint-affidavit containing matters which are not within the personal
knowledge of the complainant be sufficient basis for the finding of probable cause?

C.
Where there is offense charged in a criminal complaint is not cognizable by the
Regional Trial Court and not covered by the Rule on Summary Procedure, and the record of the
preliminary investigation does not show the existence of probable cause, should not the judge
refuse to issue a warrant of arrest and dismiss the criminal case, or at the very least, require the
accused to submit his counter-affidavit in order to aid the judge in determining the existence of
probable cause?
D.
Can a criminal prosecution be restrained?
E.
Can this Honorable Court itself determine the existence of probable cause?[20]
On the other hand, respondent contends that the issues raised by the petitioners had already become
moot and academic when the latter posted bail and were already arraigned.
On 2 August 2000, this Court issued a TRO [21] enjoining the judge of the MTCC from proceeding in any
manner with Criminal Case Nos. 6683 to 6686, effective during the entire period that the case is pending before, or
until further orders of, this Court.
We will first discuss the issue of mootness.
The issues raised by the petitioners have not been mooted by the fact that they had posted bail and were
already arraigned.
It appears from the records that upon the issuance of the warrant of arrest, petitioners immediately posted
bail as they wanted to avoid embarrassment, being then the officers of Urban Bank. On the scheduled date for the
arraignment, despite the petitioners refusal to enter a plea, the court a quo entered a plea of Not Guilty for them.
The erstwhile ruling of this Court was that posting of bail constitutes a waiver of any irregularity in the
issuance of a warrant of arrest, that has already been superseded by Section 26, Rule 114 of the Revised Rule of
Criminal Procedure. The principle that the accused is precluded from questioning the legality of the arrest after
arraignment is true only if he voluntarily enters his plea and participates during trial, without previously invoking his
objections thereto.[22]
As held in Okabe v. Hon. Gutierrez:[23]
It bears stressing that Section 26, Rule 114 of the Revised Rules on Criminal
Procedure is a new one, intended to modify previous rulings of this Court that an application for
bail or the admission to bail by the accused shall be considered as a waiver of his right to assail
the warrant issued for his arrest on the legalities or irregularities thereon. The new rule has
reverted to the ruling of this Court in People v. Red. The new rule is curative in nature because
precisely, it was designed to supply defects and curb evils in procedural rules. Hence, the rules
governing curative statutes are applicable. Curative statutes are by their essence retroactive in
application. Besides, procedural rules as a general rule operate retroactively, even without
express provisions to that effect, to cases pending at the time of their effectivity, in other words
to actions yet undetermined at the time of their effectivity. Before the appellate court rendered its
decision on January 31, 2001, the Revised Rules on Criminal Procedure was already in effect. It
behoved the appellate court to have applied the same in resolving the petitioners petition for
certiorari and her motion for partial reconsideration.
Moreover, considering the conduct of the petitioner after posting her personal bail
bond, it cannot be argued that she waived her right to question the finding of probable cause
and to assail the warrant of arrest issued against her by the respondent judge. There must be
clear and convincing proof that the petitioner had an actual intention to relinquish her right to
question the existence of probable cause. When the only proof of intention rests on what a party

does, his act should be so manifestly consistent with, and indicative of, an intent to voluntarily
and unequivocally relinquish the particular right that no other explanation of his conduct is
possible. x x x.
Herein petitioners filed the Omnibus Motion to Quash, Recall Warrants of Arrest and/or For Reinvestigation
on the same day that they posted bail. Their bail bonds likewise expressly contained a stipulation that they were not
waiving their right to question the validity of their arrest.[24] On the date of their arraignment, petitioners refused to
enter their plea due to the fact that the issue on the legality of their arrest is still pending with the Court. Thus, when
the court a quo entered a plea of not guilty for them, there was no valid waiver of their right to preclude them from
raising the same with the Court of Appeals or this Court. The posting of bail bond was a matter of imperative
necessity to avert their incarceration; it should not be deemed as a waiver of their right to assail their arrest. The
ruling to which we have returned in People v. Red[25] stated:
x x x The present defendants were arrested towards the end of January, 1929, on the Island and Province
of Marinduque by order of the judge of the Court of First Instance of Lucena, Tayabas, at a time when
there were no court sessions being held in Marinduque. In view of these circumstances and the number of
the accused, it may properly be held that the furnishing of the bond was prompted by the sheer necessity
of not remaining in detention, and in no way implied their waiver of any right, such as the summary
examination of the case before their detention. That they had no intention of waiving this right is clear from
their motion of January 23, 1929, the same day on which they furnished a bond, and the fact that they
renewed this petition on February 23, 1929, praying for the stay of their arrest for lack of the summary
examination; the first motion being denied by the court on January 24, 1929 (G.R. No. 33708, page 8), and
the second remaining undecided, but with an order to have it presented in Boac, Marinduque.
Therefore, the defendants herein cannot be said to have waived the right granted to them by
section 13, General Order No. 58, as amended by Act No. 3042.
The rest of the issues raised by the petitioners may be grouped into two, which are: (1) the procedural
aspect, i.e., whether the prosecution and the court a quo properly observed the required procedure in the instant
case, and, (2) the substantive aspect, which is whether there was probable cause to pursue the criminal cases to
trial.
THE PROCEDURAL ASPECT:
Petitioners contend that they were denied due process as they were unable to submit their counter-affidavits and
were not accorded the right to a preliminary investigation.Considering that the complaint of Atty. Pea was filed in
September 1998, the rule then applicable was the 1985 Rules of Criminal Procedure.
The provisions of the 1985 Rules of Criminal Procedure relevant to the issue are Sections 1, 3(a) and 9(a)
of Rule 112, to wit:
Section 1. Definition. Preliminary investigation is an inquiry or proceeding for the
purpose of determining whether there is sufficient ground to engender a well founded belief that
a crime cognizable by the Regional Trial Court has been committed and that the respondent is
probably guilty thereof, and should be held for trial.
Sec. 3. Procedure. Except as provided for in Section 7 hereof, no complaint or
information for an offense cognizable by the Regional Trial Court shall be filed without a
preliminary investigation having been first conducted in the following manner:
(a) The complaint shall state the known address of the respondent and be accompanied by
affidavits of the complainant and his witnesses as well as other supporting documents, in such
number of copies as there are respondents, plus two (2) copies for the official file. The said
affidavits shall be sworn to before any fiscal, state prosecutor or government official authorized
to administer oath, or, in their absence or unavailability, a notary public, who must certify that he

personally examined the affiants and that he is satisfied that they voluntarily executed and
understood their affidavits.
Sec. 9. Cases not falling under the original jurisdiction of the Regional Trial Courts nor
by
the
Rule
on
Summary
Procedure.

1.
I am the Plaintiff in Civil Case No. 754 pending with the Regional Trial
Court of Bago City entitled Atty. Magdaleno M. Pea v. Urban Bank, et al Impleaded therein as
defendants of the board of the bank, namely, Teodoro Borlongan, Delfin Gonzales, Jr., Benjamin
De Leon, P. Siervo Dizon, Eric Lee, Ben Lim Jr., Corazon Bejasa and Arturo Manuel.(underlining
ours)

(a) Where filed with the fiscal. If the complaint is filed directly with the fiscal or state
prosecutor, the procedure outlined in Section 3(a) of this Rule shall be observed. The fiscal shall
take appropriate action based on the affidavits and other supporting documents submitted by the
complainant. (underscoring supplied)

2.
I filed the said case to collect my fees as agent of Urban Bank, Inc.
(hereinafter referred to as the bank) in ridding a certain parcel of land in Pasay City of squatters
and intruders. A certified true copy of the Complaint in the said case is hereto attached as Annex
A.

The crime to which petitioners were charged was defined and penalized under second paragraph of Article
172 in relation to Article 171 of the Revised Penal Code.

3.
In the Motion to Dismiss dated 12 March 1996 (a certified true copy of
which is attached as Annex B), Answer dated 28 October 1996 (Annex C), and Pre-Trial Brief
dated 28 January 1997 (Annex D) filed by the bank and the respondent members of the board,
the said respondents used as evidence the following documents:

covered

Art. 172. Falsification by private individual and use of falsified documents. The penalty of prision
correccional in its medium and maximum periods and a fine of not more than P5,000 pesos shall
be imposed upon:
1. Any private individual who shall commit any of the falsifications enumerated in the next
preceding article in any public or official document or letter of exchange or any other kind of
commercial document; and

a. Letter dated 19 December 1994 supposedly signed by a certain Herman Ponce and
Julie Abad for Isabela Sugar Company (ISC) (a copy of which is attached as Annex E), which
states:
December 19, 1994

2. Any person who, to the damage of a third party, or with the intent to cause such damage, shall
in any private document commit any of the acts of falsification enumerated in the next preceding
article.

Urban Bank
Urban Avenue, Makati
Metro Manila

Any person who shall knowingly introduce in evidence in any judicial proceeding or to the
damage of another or who, with the intent to cause such damage, shall use any of the false
documents embraced in the next preceding article or in any of the foregoing subdivisions of this
article, shall be punished by the penalty next lower in degree.

Gentlemen:

Prision correccional in its medium and maximum periods translates to imprisonment of 2 years, 4 months
and 1 day.[26] The next lower in degree to prision correccional isarresto mayor in its maximum period to prision
correccional in its minimum period which translates to 4 months and 1 day to 2 years and 4 months [27] of
imprisonment. Since the crime committed is not covered by the Rules of Summary Procedure, [28] the case falls within
the exclusive jurisdiction of the first level courts but applying the ordinary rules. In such instance, preliminary
investigation as defined in Section 1, Rule 112 of the 1985 Rules of Criminal Procedure is not applicable since such
section covers only crimes cognizable by the RTC. That which is stated in Section 9(a) is the applicable rule.
Under this Rule, while probable cause should first be determined before an information may be filed in court, the
prosecutor is not mandated to require the respondent to submit his counter-affidavits to oppose the complaint. In the
determination of probable cause, the prosecutor may solely rely on the complaint, affidavits and other supporting
documents submitted by the complainant. If he does not find probable cause, the prosecutor may dismiss outright
the complaint or if he finds probable cause or sufficient reason to proceed with the case, he shall issue a resolution
and file the corresponding information.
The complaint of respondent, verbatim, is as follows:

This has reference to your property located among Roxas Boulevard, Pasay City which you
purchased from Isabela Sugar Company under a Deed of Absolute Sale executed on December
1, 1994.
In line with our warranties as the Seller of the said property and our undertaking to deliver to you
the full and actual possession and control of said property, free from tenants, occupants or
squatters and from any obstruction or impediment to the free use and occupancy of the property
and to prevent the former tenants or occupants from entering or returning to the premises. In
view of the transfer of ownership of the property to Urban Bank, it may be necessary for Urban
Bank to appoint Atty. Pea likewise as its authorized representative for purposes of
holding/maintaining continued possession of the said property and to represent Urban Bank in
any court action that may be instituted for the abovementioned purposes.
It is understood that any attorneys fees, cost of litigation and any other charges or expenses that
may be incurred relative to the exercise by Atty. Pea of his abovementioned duties shall be for
the account of Isabela Sugar Company and any loss or damage that may be incurred to third
parties shall be answerable by Isabela Sugar Company.
Very truly yours,
Isabela Sugar Company

COMPLAINT AFFIDAVIT
I, MAGDALENO M. PEA, Filipino, of legal age, with address at Brgy. Ubay, Pulupandan, Negros
Occidental, after having been sworn in accordance with law hereby depose and state:

By:
HERMAN PONCE
JULIE ABAD

b. Memorandum dated 7 December 1994 supposedly executed by a certain Marilyn Ong on

behalf of ISC, a copy of which is hereto attached as annex F, which states:

ENRIQUE C. MONTILLA III

President

December 7, 1994

4.

The respondent member of the board of the bank used and introduced the aforestated
documents as evidence in the civil case knowing that the same are falsified. They used
thae said documents to justify their refusal to pay my agents fees, to my damage and
prejudice.

5.

The 19 December 1994 letter (Annex E) is a falsified document, in that the person who
supposedly executed the letter on behalf of ISC, a certain Herman Ponce and Julie Abad
did not actually affix their signatures on the document. The execution of the letter was
merely simulated by making it appear that Ponce and Abad executed the letter on behalf of
ISC when they did not in fact do so.

6.

No persons by the name of Herman Ponce and Julie Abad were ever stockholders,
officers, employees or representatives of ISC. In the letter, Herman Ponce was represented
to be the President of ISC and Julie Abad, the Corporate Secretary. However, as of 19
December 1994, the real President of plaintiff was Enrique Montilla, III and Cristina Montilla
was the Corporate Secretary. A copy of the Minutes of the Regular Meeting of ISC for the
year 1994, during which Montilla, et al. Were elected is hereto attached as Annex I. On the
otherhand, a list of the stockholders of ISC on or about the time of the transaction is
attached as Annex J.

7.

The same holds true with respect to the Memorandum dated 7 December 1994 and athe
letter dated 9 December 1994 allegedly written by a ceratin Marilyn Ong. Nobody by the
said name was ever a stockholder of ISC.

8.

Lastly, with respect to the supposed Memorandum issued by Enrique Montilla, III his
signature thereon was merely forged by respondents. Enrique Montilla III, did not affix his
signature on any such document.

9.

I am executing this affidavit for the purpose of charging Teodoro C. Borlongan, Corazon M.
Bejasa and Arturo E. Manuel, Delfin C. Gonzales Jr., Benjamin L. De Leon, P. Siervo H.
Dizon and Eric Lee, with the crime of use of falsified documents under Artilce 172,
paragraph 2, of the Revised Penal Code.(underlining ours)

To: ATTY. CORA BEJASA

From: MARILYN G. ONG
RE: ISABELA SUGAR CO., INC.
Atty. Magdaleno M. Pea, who has been assigned by Isabela Sugar Company inc. to take charge
of inspecting the tenants would like to request an authority similar to this from the Bank to new
owners. Can you please issue something like this today as he (unreadable) this.
b.
Letter dated 9 December 1994 supposedly executed by the same Marilyn Ong,
a copy of which is hereto attached as Annex G, which states:
December 9, 1994
Atty. Ted Borlongan
URBAN BANK OF THE PHILIPPINES
MAKATI, METRO MANILA
Attention: Mr. Ted Borlongan
Dear Mr. Borlongan
I would like to request for an authority from Urban Bank per attached immediately as the tenants
are questioning authority of the people who are helping us to take possession of the property.
Marilyn Ong
c.
Memorandum dated 20 November 1994, copy of which is attached as annex H,
which states:

10. I am likewise executing this affidavit for whatever legal purpose it may serve.
FURTHER AFFIANT SAYETH NAUGHT.

MEMORANDUM
To: Atty. Magadaleno M. Pea
Director
From: Enrique C. Montilla III
President
Date: 20 November 1994
You are hereby directed to recover and take possession of the property of the corporation
situated at Roxas Boulevard covered by TCT No. 5382 of the Registry of Deeds for Pasay City,
immediately upon the expiration of the contract of lease over the said property on 29 November
1994. For this purpose, you are authorized to engage the services of security guards to protect
the property against intruders. You may also engage the services of a lawyer in case there is a
need to go to court to protect the said property of the corporation. In addition, you may take
whatever steps or measures are necessary to ensure our continued possession of the property.

Sgd. MAGDALENO M. PEA

It is evident that in the affidavit-complaint, specifically in paragraph 1, respondent merely introduced and identified
the board of the bank, namely, Teodoro Borlongan, Jr., Delfin Gonzales, Jr., Benjamin De Leon, P. Siervo Dizon, Eric
Lee, Ben Lim, Jr., Corazon Bejasa and Arturo Manuel, Sr. However, in the accusatory portion of the complaint which
is paragraph number 9, Mr. Ben Lim, Jr. was not included among those charged with the crime of use of falsified
documents under Article 172, paragraph 2, of the Revised Penal Code. The omission indicates that respondent did
not intend to criminally implicate Mr. Ben Lim, Jr., even as he was acknowledged to be a member of the board. And
there was no explanation in the Resolution and Information by the City Prosecutor why Mr. Ben Lim, Jr. was
included. Moreover, as can be gleaned from the body of the complaint and the specific averments therein, Mr. Ben
Lim, Jr. was never mentioned.

The City Prosecutor should have cautiously reviewed the complaint to determine whether there were
inconsistencies which ought to have been brought to the attention of the respondent or, on his own, considered for
due evaluation. It is a big mistake to bring a man to trial for a crime he did not commit.
Prosecutors are endowed with ample powers in order that they may properly fulfill their assigned role in
the administration of justice. It should be realized, however, that when a man is hailed to court on a criminal charge,
it brings in its wake problems not only for the accused but for his family as well. Therefore, it behooves a prosecutor
to weigh the evidence carefully and to deliberate thereon to determine the existence of a prima facie case before
filing the information in court. Anything less would be a dereliction of duty.[29]
Atty. Pea, in his Second Manifestation [30] dated 16 June 1999, averred that petitioners, including Mr. Ben
Lim, Jr., were already estopped from raising the fact that Mr. Ben Lim, Jr. was not a member of the board of directors
of Urban Bank, as the latter participated and appeared through counsel in Civil Case No. 754 without raising any
opposition.However, this does not detract from the fact that the City Prosecutor, as previously discussed, did not
carefully scrutinize the complaint of Atty. Pea, which did not charge Mr. Ben Lim, Jr. of any crime.
What tainted the procedure further was that the Judge issued a warrant for the arrest of the petitioners,
including, Mr. Ben Lim, Jr. despite the filing of the Omnibus Motion to Quash, Recall Warrants of Arrest and/or For
Reinvestigation raising among others the issue that Mr. Ben Lim, Jr., was not even a member of the board of
directors. With the filing of the motion, the judge is put on alert that an innocent person may have been included in
the complaint. In the Order[31] dated 13 November 1998, in denying the motion to quash, Judge Primitivo Blanca
ruled that:
Courts in resolving a motion to quash cannot consider facts contrary to those alleged in the
information or which do not appear on the face of the information because said motion is
hypothethical admission of the facts alleged in the information x x x. (citations omitted.)
We cannot accept as mere oversight the mistake of respondent judge since it was at the expense of
liberty. This cannot be condoned.
In the issuance of a warrant of arrest, the mandate of the Constitution is for the judge to personally determine the
existence of probable cause:
Section 2, Article III of the Constitution provides:
Section 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.

Enshrined in our Constitution is the rule that [n]o x x x 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 x x x the persons x x x to be seized. [32] Interpreting the
words personal determination, we said in Soliven v. Makasiar[33] that it does not thereby mean that judges are obliged
to conduct the personal examination of the complainant and his witnesses themselves. To require thus would be to
unduly laden them with preliminary examinations and investigations of criminal complaints instead of concentrating
on hearing and deciding cases filed before them. Rather, what is emphasized merely is the exclusive and personal
responsibility of the issuing judge to satisfy himself as to the existence of probable cause. To this end, he may: (a)
personally evaluate the report and the supporting documents submitted by the prosecutor regarding the existence of
probable cause and, on the basis thereof, issue a warrant of arrest; or (b) if on the basis thereof he finds no probable
cause, disregard the prosecutor's report and require the submission of supporting affidavits of witnesses to aid him in
determining its existence. What he is never allowed to do is to follow blindly the prosecutor's bare certification
as to the existence of probable cause. Much more is required by the constitutional provision. Judges have to go
over the report, the affidavits, the transcript of stenographic notes if any, and other documents supporting
the prosecutor's certification. Although the extent of the judge's personal examination depends on the
circumstances of each case, to be sure, he cannot just rely on the bare certification alone but must go beyond
it. This is because the warrant of arrest issues not on the strength of the certification standing alone but because of
the records which sustain it.[34] He should even call for the complainant and the witnesses to answer the court's
probing questions when the circumstances warrant.[35]
An arrest without a probable cause is an unreasonable seizure of a person, and violates the privacy of
persons which ought not to be intruded by the State.[36]
Measured against the constitutional mandate and established rulings, there was here a clear abdication of the
judicial function and a clear indication that the judge blindly followed the certification of a city prosecutor as to the
existence of probable cause for the issuance of a warrant of arrest with respect to all of the petitioners. The careless
inclusion of Mr. Ben Lim, Jr., in the warrant of arrest gives flesh to the bone of contention of petitioners that the
instant case is a matter of persecution rather than prosecution. [37] On this ground, this Court may enjoin the criminal
cases against petitioners. As a general rule, criminal prosecutions cannot be enjoined. However, there are
recognized exceptions which, as summarized in Brocka v. Enrile,[38] are:
a. To afford adequate protection to the constitutional rights of the accused;[39]
b. When necessary for the orderly administration of justice or to avoid oppression or multiplicity
of actions;[40]
c. When there is a prejudicial question which is sub judice;[41]
d. When the acts of the officer are without or in excess of authority; [42]
e. Where the prosecution is under an invalid law, ordinance or regulation;[43]

Corollary thereto, Section 9(b) of the 1985 Rules of Criminal Procedure provides:

f. When double jeopardy is clearly apparent;[44]

Sec. 9. Cases not falling under the original jurisdiction of the Regional Trial Courts nor covered
by the Rule on Summary Procedure.

g. Where the court had no jurisdiction over the offense;[45]

h. Where it is a case of persecution rather than prosecution;[46]

(a) x x x.
i. Where the charges are manifestly false and motivated by the lust for vengeance; [47] and
(b) Where filed directly with the Municipal Trial Court. If the complaint or information is filed
directly with the Municipal Trial Court, the procedure provided for in Section 3(a) of this Rule
shall likewise be observed. If the judge finds no sufficient ground to hold the respondent for trial,
he shall dismiss the complaint or information. Otherwise, he shall issue a warrant of arrest after
personally examining in writing and under oath the complainant and his witnesses in the form of
searching questions and answers.

j. When there is clearly no prima facie case against the accused and a motion to quash on that
ground has been denied.[48]
THE SUBSTANTIVE ASPECT:
Petitioners were charged with violation of par. 2, Article 172 of the Revised Penal Code or Introduction of Falsified
Document in a judicial proceeding. The elements of the offense are as follows:

1.
2.
3.

That the offender knew that a document was falsified by another person.
That the false document is embraced in Article 171 or in any subdivisions Nos. 1 or
2 of Article 172.
That he introduced said document in evidence in any judicial proceeding. [49]

The falsity of the document and the defendants knowledge of its falsity are essential elements of the
offense. The Office of the City Prosecutor filed the Informations against the petitioners on the basis of the ComplaintAffidavit of respondent Atty. Pea, attached to which were the documents contained in the Motion to Dismiss filed by
the petitioners in Civil Case No. 754. Also included as attachments to the complaint were the Answers, Pre-Trial
Brief, the alleged falsified documents, copy of the regular meetings of ISCI during the election of the Board of
Directors and the list of ISCI Stockholders.[50] Based on these documents and the complaint-affidavit of Atty. Pea, the
City Prosecutor concluded that probable cause for the prosecution of the charges existed. On the strength of the
same documents, the trial court issued the warrants of arrest.
This Court, however, cannot find these documents sufficient to support the existence of probable cause.
Probable cause is such set of facts and circumstances as would lead a reasonably discreet and prudent man to
believe that the offense charged in the Information or any offense included therein has been committed by the
person sought to be arrested. In determining probable cause, the average man weighs the facts and circumstances
without restoring to the calibrations of the rules of evidence of which he has no technical knowledge. He relies on
common sense. A finding of probable cause needs only to rest on evidence showing that, more likely than not, a
crime has been committed and that it was committed by the accused. Probable cause demands more than
suspicion; it requires less than evidence that would justify conviction.[51]
As enunciated in Baltazar v. People,[52] the task of the presiding judge when the Information is filed with the
court is first and foremost to determine the existence or non-existence of probable cause for the arrest of the
accused.
The purpose of the mandate of the judge to first determine probable cause for the arrest of the accused is
to insulate from the very start those falsely charged with crimes from the tribulations, expenses and anxiety of a
public trial.[53]
We do not see how it can be concluded that the documents mentioned by respondent in his complaintaffidavit were falsified. In his complaint, Atty. Pea stated that Herman Ponce, Julie Abad and Marilyn Ong, the alleged
signatories of the questioned letters, did not actually affix their signatures therein; and that they were not actually
officers or stockholders of ISCI.[54] He further claimed that Enrique Montillas signature appearing in another
memorandum addressed to respondent was forged. [55] These averments are mere assertions which are insufficient to
warrant the filing of the complaint or worse the issuance of warrants of arrest. These averments cannot be
considered as proceeding from the personal knowledge of herein respondent who failed to, basically, allege that he
was present at the time of the execution of the documents. Neither was there any mention in the complaint-affidavit
that herein respondent was familiar with the signatures of the mentioned signatories to be able to conclude that they
were forged. What Atty. Pea actually stated were but sweeping assertions that the signatories are mere dummies of
ISCI and that they are not in fact officers, stockholders or representatives of the corporation. Again, there is no
indication that the assertion was based on the personal knowledge of the affiant.
The reason for the requirement that affidavits must be based on personal knowledge is to guard against
hearsay evidence. A witness, therefore, may not testify as what he merely learned from others either because he
was told or read or heard the same. Such testimony is considered hearsay and may not be received as proof of the
truth of what he has learned. [56] Hearsay is not limited to oral testimony or statements; the general rule that excludes
hearsay as evidence applies to written, as well as oral statements.[57]
The requirement of personal knowledge should have been strictly applied considering that herein
petitioners were not given the opportunity to rebut the complainants allegation through counter-affidavits.
Quite noticeable is the fact that in the letter dated 19 December 1994 of Herman Ponce and Julie Abad, neither of
the two made the representation that they were the president or secretary of ISCI. It was only Atty. Pea who asserted
that the two made such representation. He alleged that Marilyn Ong was never a stockholder of ISCI but he did not
present the stock and transfer book of ISCI. And, there was neither allegation nor proof that Marilyn Ong was not

connected to ISCI in any other way. Moreover, even if Marilyn Ong was not a stockholder of ISCI, such would not
prove that the documents she signed were falsified.
The Court may not be compelled to pass upon the correctness of the exercise of the public prosecutors
function without any showing of grave abuse of discretion or manifest error in his findings. [58] Considering, however,
that the prosecution and the court a quo committed manifest errors in their findings of probable cause, this Court
therefore annuls their findings.
Our pronouncement in Jimenez v. Jimenez[59] as reiterated in Baltazar v. People is apropos:
It is x x x imperative upon the fiscal or the judge as the case may be, to relieve the accused from
the pain of going through a trial once it is ascertained that the evidence is insufficient to sustain a
prima facie case or that no probable cause exists to form a sufficient belief as to the guilt of the
accused. Although there is no general formula or fixed rule for the determination of probable
cause since the same must be decided in the light of the conditions obtaining in given situations
and its existence depends to a large degree upon the finding or opinion of the judge conducting
the examination, such a finding should not disregard the facts before the judge nor run counter
to the clear dictates of reasons. The judge or fiscal, therefore, should not go on with the
prosecution in the hope that some credible evidence might later turn up during trial for this would
be a flagrant violation of a basic right which the courts are created to uphold. It bears repeating
that the judiciary lives up to its mission by visualizing and not denigrating constitutional rights. So
it has been before. It should continue to be so.
On the foregoing discussion, we find that the Court of Appeals erred in affirming the findings of the prosecutor as well
as the court a quo as to the existence of probable cause. The criminal complaint against the petitioners should be
dismissed.
WHEREFORE, the petition is hereby GRANTED. The Decision of the Court of Appeals dated 20 June
2000, in CA-G.R. SP No. 49666, is REVERSED and SET ASIDE.The Temporary Restraining Order dated 2 August
2000 is hereby made permanent. Accordingly, the Municipal Trial Court in Cities, Negros Occidental, Bago City, is
herebyDIRECTED to DISMISS Criminal Case Nos. 6683, 6684, 6685 and 6686.
SO ORDERED.

JOSE ANTONIO C. LEVISTE,

Petitioner,

G.R. No. 182677

The appellate court dismissed petitioners petition, hence, his present petition, arguing that:
Present:

- versus HON. ELMO M. ALAMEDA, HON. RAUL M. GONZALEZ,

HON. EMMANUEL Y. VELASCO, HEIRS OF THE LATE
RAFAEL DE LAS ALAS,
Respondents.

CARPIO MORALES, Chairperson,

NACHURA,*
BERSAMIN,
ABAD,** and
VILLARAMA, JR., JJ.

PRIVATE RESPONDENT DID NOT HAVE THE RIGHT TO CAUSE THE REINVESTIGATION OF
THE CRIMINAL CASE BELOW WHEN THE CRIMINAL INFORMATION HAD ALREADY BEEN
FILED WITH THE LOWER COURT. HENCE, THE COURT OF APPEALS COMMITTED A
GRAVE ERROR IN FINDING THAT RESPONDENT JUDGE DID NOT ACT WITH GRAVE
ABUSE OF DISCRETION IN GRANTING SUCH REINVESTIGATION DESPITE HAVING NO
BASIS IN THE RULES OF COURT[;]

Promulgated:
August 3, 2010

RESPONDENT JUDGE ACTED WITH GRAVE ABUSE OF DISCRETION IN ADMITTING STATE

PROSECUTOR VELASCOS AMENDED INFORMATION, ISSUING A WARRANT OF ARREST,
AND SETTING THE CASE BELOW FOR ARRAIGNMENT, CONSIDERING THAT THE VALIDITY
AND LEGALITY OF HIS ORDERS DATED 24 AND 31 JANUARY 2007, WHICH LED TO THE
QUESTIONABLE REINVESTIGATION AND ILLEGAL AMENDED INFORMATION[,] ARE YET TO
BE RESOLVED BY THIS HONORABLE COURT (sic); [AND]

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION
CARPIO MORALES, J.:

CONSIDERING THAT PROSECUTOR VELASCOS FINDINGS IN HIS RESOLUTION DATED 2

FEBRUARY 2007 ARE BLATANTLY BASED ON MERE SPECULATIONS AND CONJECTURES,
WITHOUT ANY SUBSTANTIAL OR MATERIAL NEW EVIDENCE BEING ADDUCED DURING
THE REINVESTIGATION, RESPONDENT JUDGE SHOULD HAVE AT LEAST ALLOWED
PETITIONERS MOTION FOR A HEARING FOR JUDICIAL DETERMINATION OF PROBABLE
CAUSE.[15] (emphasis in the original omitted)

Jose Antonio C. Leviste (petitioner) assails via the present petition for review filed on May 30, 2008 the August 30,
2007 Decision[1] and the April 18, 2008 Resolution [2] of the Court of Appeals in CA-G.R. SP No. 97761 that affirmed
the trial courts Orders of January 24, 31, February 7, 8, all in 2007, and denied the motion for reconsideration,
respectively.

Records show that the arraignment scheduled on March 21, 2007 pushed through during which petitioner refused to
plead, drawing the trial court to enter a plea of not guilty for him.

Petitioner was, by Information[3] of January 16, 2007, charged with homicide for the death of Rafael de las Alas
on January 12, 2007 before the Regional Trial Court (RTC) ofMakati City. Branch 150 to which the case was raffled,
presided by Judge Elmo Alameda, forthwith issued a commitment order [4] against petitioner who was placed under
police custody while confined at the Makati Medical Center.[5]

Prior thereto or on February 23, 2007, petitioner filed an Urgent Application for Admission to Bail Ex Abundanti
Cautela[16] which the trial court, after hearings thereon, granted by Order of May 21, 2007,[17] it finding that the
evidence of guilt for the crime of murder is not strong. It accordingly allowed petitioner to post bail in the amount
of P300,000 for his provisional liberty.

After petitioner posted a P40,000 cash bond which the trial court approved,[6] he was released from detention, and
his arraignment was set on January 24, 2007.

The trial court, absent any writ of preliminary injunction from the appellate court, went on to try petitioner under the
Amended Information. By Decision of January 14, 2009, the trial court found petitioner guilty of homicide, sentencing
him to suffer an indeterminate penalty of six years and one day of prision mayor as minimum to 12 years and one day
ofreclusion temporal as maximum. From the Decision, petitioner filed an appeal to the appellate court, docketed as
CA-G.R. CR No. 32159, during the pendency of which he filed an urgent application for admission to bail pending
appeal. The appellate court denied petitioners application which this Court, in G.R. No. 189122, affirmed by Decision
of March 17, 2010.

The private complainants-heirs of De las Alas filed, with the conformity of the public prosecutor, an Urgent Omnibus
Motion[7] praying, inter alia, for the deferment of the proceedings to allow the public prosecutor to re-examine the
evidence on record or to conduct a reinvestigation to determine the proper offense.
The RTC thereafter issued the (1) Order of January 24, 2007[8] deferring petitioners arraignment and
allowing the prosecution to conduct a reinvestigation to determine the proper offense and submit a recommendation
within 30 days from its inception, inter alia; and (2) Order of January 31, 2007[9] denying reconsideration of the first
order. Petitioner assailed these orders via certiorari and prohibition before the Court of Appeals.

The Office of the Solicitor General (OSG) later argued that the present petition had been rendered moot
since the presentation of evidence, wherein petitioner actively participated, had been concluded.[18]
Waiver on the part of the accused must be distinguished from mootness of the petition, for in the
present case, petitioner did not, by his active participation in the trial, waive his stated objections.

Meantime, petitioner filed an Urgent Ex-Parte Manifestation and Motion before the trial court to defer
acting on the public prosecutors recommendation on the proper offense until after the appellate court resolves his
application for injunctive reliefs, or alternatively, to grant him time to comment on the prosecutors recommendation
and thereafter set a hearing for the judicial determination of probable cause. [10] Petitioner also separately moved for
the inhibition of Judge Alameda with prayer to defer action on the admission of the Amended Information. [11]
The trial court nonetheless issued the other assailed orders, viz: (1) Order of February 7, 2007[12] that
admitted the Amended Information[13] for murder and directed the issuance of a warrant of arrest; and (2) Order
of February 8, 2007[14] which set the arraignment on February 13, 2007. Petitioner questioned these two orders
via supplemental petition before the appellate court.

Section 26, Rule 114 of the Rules of Court provides:

SEC. 26. Bail not a bar to objections on illegal arrest, lack of or irregular preliminary
investigation. An application for or admission to bail shall not bar the accused from challenging
the validity of his arrest or the legality of the warrant issued therefor, or from assailing the
regularity or questioning the absence of a preliminary investigation of the charge against him,
provided that he raises them before entering his plea. The court shall resolve the matter as early
as practicable but not later than the start of the trial of the case.

By applying for bail, petitioner did not waive his right to challenge the regularity of the reinvestigation of the
charge against him, the validity of the admission of the Amended Information, and the legality of his arrest under the
Amended Information, as he vigorously raised them prior to his arraignment. During the arraignment on March 21,
2007, petitioner refused to enter his plea since the issues he raised were still pending resolution by the appellate
court, thus prompting the trial court to enter a plea of not guilty for him.

When a person is lawfully arrested without a warrant involving an offense which requires a
preliminary investigation, the complaint or information may be filed by a prosecutor without need
of such investigation provided an inquest has been conducted in accordance with existing
rules. In the absence or unavailability of an inquest prosecutor, the complaint may be filed by the
offended party or a peace officer directly with the proper court on the basis of the affidavit of the
offended party or arresting officer or person.

The principle that the accused is precluded after arraignment from questioning the illegal arrest or the lack
of or irregular preliminary investigation applies only if hevoluntarily enters his plea and participates during trial,
without previously invoking his objections thereto.[19] There must be clear and convincing proof that petitioner had
anactual intention to relinquish his right to question the existence of probable cause . When the only proof of intention
rests on what a party does, his act should be so manifestly consistent with, and indicative of, an intent to voluntarily
and unequivocally relinquish the particular right that no other explanation of his conduct is possible. [20]

Before the complaint or information is filed, the person arrested may ask for a preliminary
investigation in accordance with this Rule, but he must sign a waiver of the provisions of Article
125 of the Revised Penal Code, as amended, in the presence of his counsel. Notwithstanding the
waiver, he may apply for bail and the investigation must be terminated within fifteen (15) days
from its inception.

From the given circumstances, the Court cannot reasonably infer a valid waiver on the part of
petitioner to preclude him from obtaining a definite resolution of the objections he so timely invoked. Other than its
allegation of active participation, the OSG offered no clear and convincing proof that petitioners participation in the
trial was unconditional with the intent to voluntarily and unequivocally abandon his petition. In fact, on January 26,
2010, petitioner still moved for the early resolution of the present petition.[21]

After the filing of the complaint or information in court without a preliminary investigation, the
accused may, within five (5) days from the time he learns of its filing, ask for a preliminary
investigation with the same right to adduce evidence in his defense as provided in this Rule.
(underscoring supplied)

Whatever delay arising from petitioners availment of remedies against the trial courts Orders cannot be
imputed to petitioner to operate as a valid waiver on his part. Neither can the non-issuance of a writ of preliminary
injunction be deemed as a voluntary relinquishment of petitioners principal prayer. The non-issuance of such
injunctive relief only means that the appellate court did not preliminarily find any exception [22] to the long-standing
doctrine that injunction will not lie to enjoin a criminal prosecution. [23]Consequently, the trial of the case took its
course.

A preliminary investigation is required before the filing of a complaint or information for an offense where
the penalty prescribed by law is at least four years, two months and one day without regard to fine. [28] As an
exception, the rules provide that there is no need for a preliminary investigation in cases of a lawful arrest without a
warrant[29]involving such type of offense, so long as an inquest, where available, has been conducted.[30]

The petition is now moot, however, in view of the trial courts rendition of judgment.

Inquest is defined as an informal and summary investigation conducted by a public prosecutor in criminal
cases involving persons arrested and detained without the benefit of a warrant of arrest issued by the court for the
purpose of determining whether said persons should remain under custody and correspondingly be charged in court.
[31]

A moot and academic case is one that ceases to present a justiciable controversy by virtue of supervening
events, so that a declaration thereon would be of no practical use or value.[24]
The judgment convicting petitioner of homicide under the Amended Information for murder operates as a
supervening event that mooted the present petition. Assuming that there is ground[25] to annul the finding of probable
cause for murder, there is no practical use or value in abrogating the concluded proceedings and retrying the case
under the original Information for homicide just to arrive, more likely or even definitely, at the same conviction of
homicide. Mootness would have also set in had petitioner been convicted of murder, for proof beyond reasonable
doubt, which is much higher than probable cause, would have been established in that instance.
Instead, however, of denying the petition outright on the ground of mootness, the Court proceeds to
resolve the legal issues in order to formulate controlling principles to guide the bench, bar and public. [26] In the
present case, there is compelling reason to clarify the remedies available before and after the filing of an information
in cases subject of inquest.
After going over into the substance of the petition and the assailed issuances, the Court finds no reversible
error on the part of the appellate court in finding no grave abuse of discretion in the issuance of the four trial court
Orders.
In his first assignment of error, petitioner posits that the prosecution has no right under the Rules to seek
from the trial court an investigation or reevaluation of the case except through a petition for review before the
Department of Justice (DOJ). In cases when an accused is arrested without a warrant, petitioner contends that the
remedy of preliminary investigation belongs only to the accused.
The contention lacks merit.

It is imperative to first take a closer look at the predicament of both the arrested person and the private
complainant during the brief period of inquest, to grasp the respective remedies available to them before and after
the filing of a complaint or information in court.
BEFORE THE FILING OF COMPLAINT OR INFORMATION IN COURT, the private complainant may
proceed in coordinating with the arresting officer and the inquest officer during the latters conduct of
inquest. Meanwhile, the arrested person has the option to avail of a 15-day preliminary investigation, provided he
duly signs a waiver of any objection against delay in his delivery to the proper judicial authorities under Article 125 of
the Revised Penal Code. For obvious reasons, this remedy is not available to the private complainant since he
cannot waive what he does not have. The benefit of the provisions of Article 125, which requires the filing of a
complaint or information with the proper judicial authorities within the applicable period, [32] belongs to the arrested
person.
The accelerated process of inquest, owing to its summary nature and the attendant risk of running against
Article 125, ends with either the prompt filing of an information in court or the immediate release of the arrested
person.[33] Notably, the rules on inquest do not provide for a motion for reconsideration.[34]
Contrary to petitioners position that private complainant should have appealed to the DOJ Secretary, such
remedy is not immediately available in cases subject of inquest.
Noteworthy is the proviso that the appeal to the DOJ Secretary is by petition by a proper party under such
rules as the Department of Justice may prescribe.[35] The rule referred to is the 2000 National Prosecution Service
Rule on Appeal,[36] Section 1 of which provides that the Rule shall apply to appeals from resolutions x x x in cases
subject of preliminary investigation/ reinvestigation. In cases subject of inquest, therefore, the private party should
first avail of a preliminary investigation or reinvestigation, if any, before elevating the matter to the DOJ Secretary.

Section 6,[27] Rule 112 of the Rules of Court reads:

In case the inquest proceedings yield no probable cause, the private complainant may pursue the case
through the regular course of a preliminary investigation.

ONCE A COMPLAINT OR INFORMATION IS FILED IN COURT, the rules yet provide the accused with
another opportunity to ask for a preliminary investigation within five days from the time he learns of its filing. The
Rules of Court and the New Rules on Inquest are silent, however, on whether the private complainant could invoke,
as respondent heirs of the victim did in the present case, a similar right to ask for a reinvestigation.
The Court holds that the private complainant can move for reinvestigation, subject to and in light of the
ensuing disquisition.
All criminal actions commenced by a complaint or information shall be prosecuted under the direction and
control of the public prosecutor.[37] The private complainant in a criminal case is merely a witness and not a party to
the case and cannot, by himself, ask for the reinvestigation of the case after the information had been filed in court,
the proper party for that being the public prosecutor who has the control of the prosecution of the case. [38] Thus, in
cases where the private complainant is allowed to intervene by counsel in the criminal action, [39] and is granted the
authority to prosecute,[40] the private complainant, by counsel and with the conformity of the public prosecutor, can file
a motion for reinvestigation.
In fact, the DOJ instructs that before the arraignment of the accused, trial prosecutors must examine the
Information vis--vis the resolution of the investigating prosecutor in order to make the necessary corrections or
revisions and to ensure that the information is sufficient in form and substance.[41]

x x x Since no evidence has been presented at that stage, the error would appear or be
discoverable from a review of the records of the preliminary investigation. Of course, that fact
may be perceived by the trial judge himself but, again, realistically it will be the prosecutor
who can initially determine the same. That is why such error need not be manifest or evident,
nor is it required that such nuances as offenses includible in the offense charged be taken into
account. It necessarily follows, therefore, that the prosecutor can and should institute
remedial measures[.][42] (emphasis and underscoring supplied)
The prosecution of crimes appertains to the executive department of the government whose principal
power and responsibility is to see that our laws are faithfully executed. A necessary component of this power to
execute our laws is the right to prosecute their violators. The right to prosecute vests the prosecutor with a wide
range of discretion the discretion of what and whom to charge, the exercise of which depends on a smorgasbord of
factors which are best appreciated by prosecutors.[43]
The prosecutions discretion is not boundless or infinite, however.[44] The standing principle is that once an
information is filed in court, any remedial measure such as a reinvestigation must be addressed to the sound
discretion of the court. Interestingly, petitioner supports this view.[45] Indeed, the Court ruled in one case that:
The rule is now well settled that once a complaint or information is filed in court, any
disposition of the case, whether as to its dismissal or the conviction or the acquittal of the
accused, rests in the sound discretion of the court. Although the prosecutor retains the direction
and control of the prosecution of criminal cases even when the case is already in court, he cannot
impose his opinion upon the tribunal. For while it is true that the prosecutor has the quasi-judicial
discretion to determine whether or not a criminal case should be filed in court, once the case had
already been brought therein any disposition the prosecutor may deem proper thereafter
should be addressed to the court for its consideration and approval. The only qualification is that
the action of the court must not impair the substantial rights of the accused or the right of the
People to due process of law.
xxxx

In such an instance, before a re-investigation of the case may be conducted by the

public prosecutor, the permission or consent of the court must be secured. If after such reinvestigation the prosecution finds a cogent basis to withdraw the information or otherwise cause
the dismissal of the case, such proposed course of action may be taken but shall likewise be
addressed to the sound discretion of the court.[46] (underscoring supplied)
While Abugotal v. Judge Tiro[47] held that to ferret out the truth, a trial is to be preferred to a reinvestigation,
the Court therein recognized that a trial court may, where the interest of justice so requires, grant a motion for
reinvestigation of a criminal case pending before it.
Once the trial court grants the prosecutions motion for reinvestigation, the former is deemed to have
deferred to the authority of the prosecutorial arm of the Government. Having brought the case back to the drawing
board, the prosecution is thus equipped with discretion wide and far reaching regarding the disposition thereof,
[48]
subject to the trial courts approval of the resulting proposed course of action.
Since a reinvestigation may entail a modification of the criminal information as what happened in the
present case, the Courts holding is bolstered by the rule on amendment of an information under Section 14, Rule
110 of the Rules of Court:
A complaint or information may be amended, in form or in substance, without leave of
court, at any time before the accused enters his plea. After the plea and during the trial, a
formal amendment may only be made with leave of court and when it can be done without
causing prejudice to the rights of the accused.
However, any amendment before plea, which downgrades the nature of the offense
charged in or excludes any accused from the complaint or information, can be made only upon
motion by the prosecutor, with notice to the offended party and with leave of court. The court
shall state its reasons in resolving the motion and copies of its order shall be furnished all parties,
especially the offended party.
If it appears at any time before judgment that a mistake has been made in charging the
proper offense, the court shall dismiss the original complaint or information upon the filing of a
new one charging the proper offense in accordance with section 11, Rule 119, provided the
accused would not be placed in double jeopardy. The court may require the witnesses to give bail
for their appearance at the trial. (emphasis supplied)
In fine, before the accused enters a plea, a formal or substantial amendment of the complaint or information may be
made without leave of court.[49] After the entry of a plea, only a formal amendment may be made but with leave of
court and only if it does not prejudice the rights of the accused. After arraignment, a substantial amendment is
proscribed except if the same is beneficial to the accused.[50]
It must be clarified though that not all defects in an information are curable by amendment prior to entry of
plea. An information which is void ab initio cannot be amended to obviate a ground for quashal. [51] An amendment
which operates to vest jurisdiction upon the trial court is likewise impermissible. [52]

Considering the general rule that an information may be amended even in substance and even without
leave of court at any time before entry of plea, does it mean that the conduct of a reinvestigation at that stage is a
mere superfluity?
It is not.
Any remedial measure springing from the reinvestigation be it a complete disposition or an intermediate
modification[53] of the charge is eventually addressed to the sound discretion of the trial court, which must make an
independent evaluation or assessment of the merits of the case. Since the trial court would ultimately make the

determination on the proposed course of action, it is for the prosecution to consider whether a reinvestigation is
necessary to adduce and review the evidence for purposes of buttressing the appropriate motion to be filed in court.
More importantly, reinvestigation is required in cases involving a substantial amendment of the information. Due
process of law demands that no substantial amendment of an information may be admitted without conducting
another or a new preliminary investigation. In Matalam v. The 2nd Division of the Sandiganbayan, [54] the Court ruled
that a substantial amendment in an information entitles an accused to another preliminary investigation, unless the
amended information contains a charge related to or is included in the original Information.
The question to be resolved is whether the amendment of the Information from homicide to murder is considered a
substantial amendment, which would make it not just a right but a duty of the prosecution to ask for a preliminary
investigation.
The Court answers in the affirmative.

Considering that another or a new preliminary investigation is required, the fact that what was conducted in the
present case was a reinvestigation does not invalidate the substantial amendment of the Information. There is no
substantial distinction between a preliminary investigation and a reinvestigation since both are conducted in the
same manner and for the same objective of determining whether there exists sufficient ground to engender a wellfounded belief that a crime has been committed and the respondent is probably guilty thereof and should be held for
trial.[60] What is essential is that petitioner was placed on guard to defend himself from the charge of murder [61] after
the claimed circumstances were made known to him as early as the first motion.
Petitioner did not, however, make much of the opportunity to present countervailing evidence on the proposed
amended charge. Despite notice of hearing, petitioner opted to merely observe the proceedings and declined to
actively participate, even with extreme caution, in the reinvestigation. Mercado v. Court of Appeals states that the
rules do not even require, as a condition sine qua non to the validity of a preliminary investigation, the presence of
the respondent as long as efforts to reach him were made and an opportunity to controvert the complainants
evidence was accorded him.[62]

A substantial amendment consists of the recital of facts constituting the offense charged
and determinative of the jurisdiction of the court. All other matters are merely of form. The
following have been held to be mere formal amendments: (1) new allegations which relate only
to the range of the penalty that the court might impose in the event of conviction; (2) an
amendment which does not charge another offense different or distinct from that charged in the
original one; (3) additional allegations which do not alter the prosecutions theory of the case so
as to cause surprise to the accused and affect the form of defense he has or will assume; (4) an
amendment which does not adversely affect any substantial right of the accused; and (5) an
amendment that merely adds specifications to eliminate vagueness in the information and not to
introduce new and material facts, and merely states with additional precision something which is
already contained in the original information and which adds nothing essential for conviction for
the crime charged.

In his second assignment of error, petitioner basically assails the hurried issuance of the last two assailed
RTC Orders despite the pendency before the appellate court of the petition for certiorari challenging the first two trial
court Orders allowing a reinvestigation.

The test as to whether a defendant is prejudiced by the amendment is whether a defense under
the information as it originally stood would be available after the amendment is made,
and whether any evidence defendant might have would be equally applicable to the information in
the one form as in the other. An amendment to an information which does not change the nature
of the crime alleged therein does not affect the essence of the offense or cause surprise or
deprive the accused of an opportunity to meet the new averment had each been held to be one of
form and not of substance.[55] (emphasis and underscoring supplied)

Regarding petitioners protestations of haste, suffice to state that the pace in resolving incidents of the case
is not per se an indication of bias. In Santos-Concio v. Department of Justice,[67] the Court held:

Matalam adds that the mere fact that the two charges are related does not necessarily or automatically
deprive the accused of his right to another preliminary investigation.Notatu dignum is the fact that both the original
Information and the amended Information in Matalam were similarly charging the accused with violation of Section
3(e) of the Anti-Graft and Corrupt Practices Act.

The presumption of regularity includes the public officers official actuations in all phases of
work. Consistent with such presumption, it was incumbent upon petitioners to present
contradictory evidence other than a mere tallying of days or numerical calculation. This,
petitioners failed to discharge. The swift completion of the Investigating Panels initial task cannot
be relegated as shoddy or shady without discounting the presumably regular performance of not
just one but five state prosecutors.[68]

In one case,[56] it was squarely held that the amendment of the Information from homicide to murder is one
of substance with very serious consequences. [57] The amendment involved in the present case consists of additional
averments of the circumstances of treachery, evident premeditation, and cruelty, which qualify the offense charged
from homicide to murder. It being a new and material element of the offense, petitioner should be given the chance
to adduce evidence on the matter. Not being merely clarificatory, the amendment essentially varies the prosecutions
original theory of the case and certainly affects not just the form but the weight of defense to be mustered by
petitioner.
The Court distinguishes the factual milieus in Buhat v. CA[58] and Pacoy v. Cajigal,[59] wherein the amendment of the
caption of the Information from homicide to murder was not considered substantial because there was no real
change in the recital of facts constituting the offense charged as alleged in the body of the Information, as the
allegations of qualifying circumstances were already clearly embedded in the original Information. Buhat pointed out
that the original Information for homicide already alleged the use of superior strength, while Pacoy states that the
averments in the amended Information for murder are exactly the same as those already alleged in the original
Information for homicide. None of these peculiar circumstances obtains in the present case.

The Rules categorically state that the petition shall not interrupt the course of the principal case unless a
temporary retraining order or a writ of preliminary injunction has been issued. [63] The appellate court, by Resolution
of February 15, 2007,[64] denied petitioners application for a temporary restraining order and writ of preliminary
injunction. Supplementary efforts to seek injunctive reliefs proved futile. [65] The appellate court thus did not err in
finding no grave abuse of discretion on the part of the trial court when it proceeded with the case and eventually
arraigned the accused on March 21, 2007, there being no injunction order from the appellate court. Moreover,
petitioner opted to forego appealing to the DOJ Secretary, a post-inquest remedy that was available after the
reinvestigation and which could have suspended the arraignment.[66]

Speed in the conduct of proceedings by a judicial or quasi-judicial officer cannot per se be

instantly attributed to an injudicious performance of functions. For ones prompt dispatch may be
anothers undue haste. The orderly administration of justice remains as the paramount and
constant consideration, with particular regard of the circumstances peculiar to each case.

There is no ground for petitioners protestations against the DOJ Secretarys sudden designation of Senior State
Prosecutor Emmanuel Velasco as Acting City Prosecutor of Makati City for the present case [69] and the latters
conformity to the motion for reinvestigation.
In granting the reinvestigation, Judge Alameda cannot choose the public prosecutor who will conduct the
reinvestigation or preliminary investigation.[70] There is a hierarchy of officials in the prosecutory arm of the executive
branch headed by the Secretary of Justice [71] who is vested with the prerogative to appoint a special prosecutor or
designate an acting prosecutor to handle a particular case, which broad power of control has been recognized by
jurisprudence.[72]
As for the trial courts ignoring the DOJ Secretarys uncontested statements to the media which aired his
opinion that if the assailant merely intended to maim and not to kill the victim, one bullet would have sufficed the DOJ
Secretary reportedly uttered that the filing of the case of homicide against ano against Leviste lintek naman eh I told

you to watch over that case there should be a report about the ballistics, about the paraffin, etc., then thats not a
complete investigation, thats why you should use that as a ground no abuse of discretion, much less a grave one,
can be imputed to it.
The statements of the DOJ Secretary do not evince a determination to file the Information even in the
absence of probable cause.[73] On the contrary, the remarks merely underscored the importance of securing basic
investigative reports to support a finding of probable cause. The original Resolution even recognized that probable
cause for the crime of murder cannot be determined based on the evidence obtained [u]nless and until a more
thorough investigation is conducted and eyewitness/es [is/]are presented in evidence[.][74]
The trial court concluded that the wound sustained by the victim at the back of his head, the absence of paraffin test
and ballistic examination, and the handling of physical evidence,[75] as rationalized by the prosecution in its motion,
are sufficient circumstances that require further inquiry.
That the evidence of guilt was not strong as subsequently assessed in the bail hearings does not affect the
prior determination of probable cause because, as the appellate court correctly stated, the standard of strong
evidence of guilt which is sufficient to deny bail to an accused is markedly higher than the standard of judicial
probable cause which is sufficient to initiate a criminal case.[76]
In his third assignment of error, petitioner faults the trial court for not conducting, at the very least, a
hearing for judicial determination of probable cause, considering the lack of substantial or material new evidence
adduced during the reinvestigation.

hearing for judicial determination of probable cause. Certainly, petitioner cannot determine beforehand how cursory
or exhaustive the [judge's] examination of the records should be [since t]he extent of the judges examination
depends on the exercise of his sound discretion as the circumstances of the case require. [83] In one case, the Court
emphatically stated:
The periods provided in the Revised Rules of Criminal Procedure are mandatory, and as such,
the judge must determine the presence or absence of probable cause within such periods. The
Sandiganbayans determination of probable cause is made ex parte and is summary in nature,
not adversarial. The Judge should not be stymied and distracted from his determination of
probable cause by needless motions for determination of probable cause filed by the
accused.[84] (emphasis and underscoring supplied)
Petitioner proceeds to discuss at length evidentiary matters, arguing that no circumstances exist that
would qualify the crime from homicide to murder.
The allegation of lack of substantial or material new evidence deserves no credence, because new pieces
of evidence are not prerequisites for a valid conduct of reinvestigation. It is not material that no new matter
or evidence was presented during the reinvestigation of the case. It should
be stressed that reinvestigation, as the word itself implies, is merely a repeat investigation of the case. New matters
or evidence are not prerequisites for a reinvestigation, which is simply a chance for the prosecutor to review and reevaluate its findings and the evidence already submitted.[85]

Petitioners argument is specious.

There are two kinds of determination of probable cause: executive and judicial. The executive
determination of probable cause is one made during preliminary investigation.It is a function that properly pertains to
the public prosecutor who is given a broad discretion to determine whether probable cause exists and to charge
those whom he believes to have committed the crime as defined by law and thus should be held for trial. Otherwise
stated, such official has the quasi-judicial authority to determine whether or not a criminal case must be filed in
court. Whether that function has been correctly discharged by the public prosecutor, i.e., whether he has made a
correct ascertainment of the existence of probable cause in a case, is a matter that the trial court itself does not and
may not be compelled to pass upon.[77]
The judicial determination of probable cause is one made by the judge to ascertain whether a warrant of
arrest should be issued against the accused. The judge must satisfy himself that based on the evidence submitted,
there is necessity for placing the accused under custody in order not to frustrate the ends of justice. If the judge finds
no probable cause, the judge cannot be forced to issue the arrest warrant. [78] Paragraph (a), Section 5,[79] Rule 112 of
the Rules of Court outlines the procedure to be followed by the RTC.
To move the court to conduct a judicial determination of probable cause is a mere superfluity, for with or
without such motion, the judge is duty-bound to personally evaluate the resolution of the public prosecutor and the
supporting evidence. In fact, the task of the presiding judge when the Information is filed with the court
is first and foremost to determine the existence or non-existence of probable cause for the arrest of the accused.[80]
What the Constitution underscores is the exclusive and personal responsibility of the issuing
judge to satisfy himself of the existence of probable cause. But the judge is not required to
personally examine the complainant and his witnesses. Following established doctrine and
procedure, he shall (1) personally evaluate the report and the supporting documents submitted
by the prosecutor regarding the existence of probable cause, and on the basis thereof, he may
already make a personal determination of the existence of probable cause; and (2) if he is not
satisfied that probable cause exists, he may disregard the prosecutors report and require the
submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the
existence of probable cause.[81] (emphasis and underscoring supplied)
The rules do not require cases to be set for hearing to determine probable cause for the issuance of a warrant of
arrest of the accused before any warrant may be issued. [82]Petitioner thus cannot, as a matter of right, insist on a

Moreover, under Rule 45 of the Rules of Court, only questions of law may be raised in, and be subject of, a
petition for review on certiorari since this Court is not a trier of facts. The Court cannot thus review the evidence
adduced by the parties on the issue of the absence or presence of probable cause, as there exists no exceptional
circumstances to warrant a factual review.[86]
In a petition for certiorari, like that filed by petitioner before the appellate court, the jurisdiction of the court
is narrow in scope. It is limited to resolving only errors of jurisdiction. It is not to stray at will and resolve questions
and issues beyond its competence, such as an error of judgment. [87] The courts duty in the pertinent case is confined
to determining whether the executive and judicial determination of probable cause was done without or in excess of
jurisdiction or with grave abuse of discretion. Although it is possible that error may be committed in the discharge of
lawful functions, this does not render the act amenable to correction and annulment by the extraordinary remedy of
certiorari, absent any showing of grave abuse of discretion amounting to excess of jurisdiction.[88]
WHEREFORE, the petition is DENIED. The assailed Decision and Resolution of the Court of Appeals in
CA-G.R. SP No. 97761 are AFFIRMED.
SO ORDERED.

PEOPLE OF THE PHILIPPINES,

Plaintiff-Appellee,

G.R. No. 191069

Present:

- versus CORONA, J., Chairperson,

VELASCO, JR.,
LEONARDO-DE CASTRO,
PERALTA,* and
PEREZ, JJ.

SULPICIO SONNY BOY TAN y PHUA,

Accused-Appellant.

Promulgated:
November 15, 2010
x-----------------------------------------------------------------------------------------x
DECISION
VELASCO, JR., J.:
The Case
This is an appeal from the October 26, 2009 Decision [1] of the Court of Appeals (CA) in CA-G.R. CR-H.C.
No. 03245 entitled People of the Philippines v. Sulpicio Sonny Boy Tan y Phua, which affirmed the December 18,
2007 Decision[2] in Criminal Case No. 06-426 of the Regional Trial Court (RTC), Branch 65 in Makati City. The RTC
found accused-appellant Sulpicio Sonny Boy Tan y Phua guilty of violation of Section 11, Article II of Republic Act No.
(RA) 9165 or the Comprehensive Dangerous Drugs Act of 2002.
The Facts
The charge against accused-appellant stemmed from the following Information:
That on or about the 20th day of February, 2006, in the City of Makati, Philippines, a
place within the jurisdiction of this Honorable Court, the above-named accused, not being
lawfully authorized to possess or otherwise use any dangerous drug, and without the
corresponding license or prescription, did then and there willfully, unlawfully and feloniously have
in his possession, direct custody and control, 120 tablets of Valium 10 mg weighing a total of
nineteen point six (19.6) grams, said tablets contain Diazepam which is a dangerous drug, in
violation of the above-cited law.
Contrary to law.[3]
On March 21, 2006, accused-appellant was initially arraigned, and he pleaded not guilty to the charge
against him. However, on March 22, 2006, his counsel de oficio, Atty. Clarence S. Dizon, filed a motion to allow
accused-appellant to withdraw his earlier plea and for reinvestigation of the case. Seeing as there was no objection
from the prosecution, the RTC granted the motion.
After finding that there exists probable cause against accused-appellant for violation of Sec. 11, Art. II of
RA 9165, the prosecution filed on July 11, 2006 a motion to set the case for arraignment and trial. [4] The motion was
granted by the RTC.[5]
Thus, on July 18, 2006, accused-appellant, assisted by counsel de oficio, Atty. Eliza B. Yu, re-entered his
previous plea of not guilty to the offense charged.[6]
During pre-trial, the parties entered into stipulation with regard to the Final Investigation Report and the
Acknowledgment Receipt issued by the Makati City Police Station through Police Officer 2 (PO2) Rafael Castillo.
[7]
Likewise, the parties stipulated as to the testimony of the forensic chemist, Police Senior Inspector Richard Allan B.
Mangalip, who established the existence of the request for drug test dated February 20, 2006 and the result dated
February 22, 2006,[8] yielding positive result for the presence of Diazepam, a dangerous drug. [9]
After the pre-trial conference, trial on the merits ensued.

During the trial, the prosecution presented as its witness Senior Police Officer 2 (SPO2) Edmundo
Geronimo. Thereafter, the defense counsel stipulated as merely corroborative the testimonies of PO1 Victoriano
Cruz, Jr., SPO1 Carlo Quilala, and PO3 Giovanni Avendano.
On the other hand, the defense presented as its sole witness, Sonny Boy, accused-appellant himself.
From the evidence adduced by the prosecution, it appears that on February 20, 2006, at around 1:15 in
the morning, SPO2 Geronimo, SPO1 Quilala, PO3 Avendano, and PO1 Cruz of the Makati City Philippine National
Police (PNP) conducted a manhunt operation against a suspect in a robbery case involving Korean nationals along
P. Burgos,Barangay Poblacion, Makati City.[10] While on board their civilian vehicle, they chanced upon a male
individual selling certain items to two foreigners. They heard him say, Hey Joe, want to buy Valium 10, Cialis, Viagra?
[11]
Curious, they inquired and the male individual told them that he was selling Viagra and Cialis, while, at the same
time, showing them the contents of his bag which yielded 120 tablets of Valium 10.[12]
The male individual, who later turned out to be Sonny Boy, was immediately searched and placed under
arrest, after which they informed him of the nature of his apprehension and of his constitutional rights. Sonny Boy
was then brought to the office of the Station Anti-Illegal Drugs Special Operations Task Force (SAID-SOTF), where
the items recovered from him were marked and inventoried by PO1 Cruz. The items were turned over to the duty
investigator.[13]
In contrast, Sonny Boy interposed the defense of denial. He maintained that he was merely watching cars
as a parking boy along P. Burgos when two men suddenly held and invited him for questioning. [14] They asked him if
he knew any drug pushers and, if he did, to identify them. When he was unable to do so, they charged him for
violation of Sec. 11, Art. II of RA 9165, which is the subject of the instant case.
Ruling of the Trial Court
After trial, the RTC found accused-appellant guilty of the crime. The dispositive portion of its December 18,
2007 Decision reads:
WHEREFORE, in view of the foregoing, judgment is hereby rendered finding accused,
SULPICIO SONNY BOY TAN y PHUA, GUILTY, beyond reasonable doubt of the charge for
violation of Sec. 11 Art. 11, RA 9165 and sentences him to suffer the penalty of LIFE
IMPRISONMENT and to pay a fine of Four Hundred Thousand (P400,000.00).
xxxx
SO ORDERED.[15]
On appeal to the CA, accused-appellant disputed the lower courts finding of his guilt beyond reasonable
doubt of the crime charged. He argued that the prosecution failed to establish every link in its chain of custody and
that the warrantless search and arrest done by the police officers were illegal.
Ruling of the Appellate Court
On October 26, 2009, the CA affirmed the judgment of the lower court finding that the prosecution
succeeded in establishing, with moral certainty, all the elements of illegal possession of dangerous drugs. The
dispositive portion of the CA Decision reads:
WHEREFORE, premises considered, the decision of the Regional Trial Court in Crim.
Case No. 06-426 dated December 18, 2007, finding accused-appellant Sulpicio Sonny Boy Tan
y Phua, guilty beyond reasonable doubt of violation of Section 11, Article II, Republic Act No.
9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002, is AFFIRMED
WITH MODIFICATION in that accused-appellant is sentenced to suffer the penalty of life
imprisonment and to pay a fine of Five Hundred Thousand Pesos (P500,000.00).
SO ORDERED.[16]
Accused-appellant timely filed a notice of appeal from the decision of the CA.
The Issues
Accused-appellant assigns the following errors:
I.
THE COURT A QUO GRAVELY ERRED IN ADMITTING THE PROHIBITED DRUGS IN
EVIDENCE DESPITE THE PROSECUTIONS FAILURE TO ESTABLISH EVERY LINK IN ITS
CHAIN OF CUSTODY.

II.
THE COURT A QUO GRAVELY ERRED IN NOT FINDING THE ACCUSED-APPELLANTS
WARRANTLESS SEARCH AND ARREST AS ILLEGAL.
III.
THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY
DESPITE THE PROSECUTIONS FAILURE TO PROVE HIS GUILT BEYOND REASONABLE
DOUBT.[17]
Our Ruling
The appeal has no merit.
Chain of Custody Was Properly Established
Accused-appellant maintains in his Brief that the police officers failed to mark, inventory, and photograph
the prohibited items allegedly seized from him at the time of his apprehension. Further, he contends that the
prosecution failed to establish how the prohibited items, which were marked by PO1 Cruz, received and inventoried
by PO2 Castillo, were turned over to PO1 Mendoza for delivery to the PNP Crime Laboratory for examination. [18] He
argues that [t]o successfully prove that the chain of custody was unbroken, every link in the chain, meaning everyone
who held and took custody of the specimen, must testify as to that degree of precaution undertaken to preserve it. [19]
Such argument must fail.
The Implementing Rules and Regulations (IRR) of RA 9165 provides:
SECTION 21. Custody and Disposition of Confiscated, Seized and/or
Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled
Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory
Equipment. The PDEA shall take charge and have custody of all dangerous drugs, plant
sources of dangerous drugs, controlled precursors and essential chemicals, as well as
instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or
surrendered, for proper disposition in the following manner:
(a) The apprehending officer/team having initial custody and control of the drugs shall,
immediately after seizure and confiscation, physically inventory and photograph the same in the
presence of the accused or the person/s from whom such items were confiscated and/or seized,
or his/her representative or counsel, a representative from the media and the Department of
Justice (DOJ), and any elected public official who shall be required to sign the copies of the
inventory and be given a copy thereof; Provided, that the physical inventory and photograph
shall be conducted at the place where the search warrant is served; or at the nearest
police station or at the nearest office of the apprehending officer/team, whichever is
practicable, in case of warrantless seizures; Provided, further, that non-compliance with
these requirements under justifiable grounds, as long as the integrity and evidentiary
value of the seized items are properly preserved by the apprehending officer/team, shall
not render void and invalid such seizures of and custody over said items x x x. (Emphasis
supplied.)
Evidently, the law itself lays down exceptions to its requirements. Thus, contrary to the assertions of
accused-appellant, Sec. 21 of the IRR need not be followed with pedantic rigor. It is settled that non-compliance with
Sec. 21 does not render an accuseds arrest illegal or make the items seized inadmissible. [20] What is imperative is
the preservation of the integrity and the evidential value of the seized items as the same would be utilized in the
determination of the guilt or innocence of the accused.[21]
As a mode of authenticating evidence, the chain of custody rule requires that the admission or
presentation of an exhibit, such as the seized prohibited drugs, be preceded by evidence sufficient to support a
finding that the matter in question is what the proponent claims it to be. [22] As held by this Court in Malillin v. People,
this would ideally include the testimonies of all persons who handled the specimen, viz:

x x x from the moment the item was picked up to the time it is offered into evidence, in
such a way that every person who touched the exhibit would describe how and from whom it
was received, where it was and what happened to it while in the witness possession, the
condition in which it was received and the condition in which it was delivered to the next link in
the chain. These witnesses would then describe the precautions taken to ensure that there had
been no change in the condition of the item and no opportunity for someone not in the chain to
have possession of the same.[23]
In the instant case, there was substantial compliance with the law and the integrity of the drugs seized was
preserved. The testimony of SPO2 Geronimo categorically established the manner by which the prohibited drugs
were handled from the moment they were seized from accused-appellant up to the time they were turned over to the
duty officer and investigator at SAID-SOTF, who, in turn, turned them over to the PNP Crime Laboratory for
examination. All this was narrated by SPO2 Geronimo, as follows:
Prosecutor Henry M. Salazar:
Q: Mr. Witness, last February 20, 2006, about 1:15 in the early morning, can you tell us where
were you?
SPO2 Eduardo Geronimo:
A: On that particular date and time, 1:15 a.m., February 20, 2006, we are conducting a manhunt
operation against the suspect of a Robbery Break-in on Korean Nationals.
Q: And where were you conducting, Mr. Witness, this follow up operation?
A: Along P. Burgos Street, Barangay Poblacion, Makati City.
Q: Can you tell us who were with you, Mr. Witness?
A: SPO1 Carlo C. Quilala, PO3 Giovanni P. Avendano and PO1 Victoriano J. Cruz, Jr.[24]
xxxx
Q: In this particular time, 1:15 a.m., February 20, 2006, you mentioned that you were conducting
a follow-up operation regarding a Robbery Break-in on Korean Nationals, where were
you in particular at that time?
A: We were on board our issued civilian vehicle Tamaraw FX with Plate Number SED-894.
Q: Where were you positioned or located at that time?
A: We were on stop position in front of the Makati Palace Hotel, more or less 5 meters away [sic]
we stopped.
Q: On that position, Mr. Witness, can you tell us if you can recall of any incident, which caught
your attention at that time?
A: On that moment, we were having surveillance against the suspect on the Robbery Break-in.
We caught the attention of one male person who was selling items to two (2)
foreigners.
Q: How did you come to know Mr. Witness, that this male person was engaged in selling items
to these two (2) male foreigners?
A: After we saw and heard male person named Sulpicio Sonny Boy Tan, we immediately
alighted from our vehicle and accosted said person and brought him near our vehicle.
Q: What did you hear from this male person, Mr. Witness, which caused you to accost him and
bring him near your vehicle?
A: We actually heard him saying, Hey Joe, want to buy Valium 10, Cialis, Viagra.[25]
xxxx
Q: And what did you tell this person when you accost him and brought him near your vehicle?
A: We asked him what are those items he was selling?
Q: When you asked him what item was he selling at that time, what did he tell to your group?
A: He told us only Viagra, Cialis.
Q: And what did you do at that time after he informed you that he was selling Viagra and Cialis?
A: He showed it to us, and then we brought him in front of our vehicle and he showed us the
contents of his bag.
Q: And what did you find inside his bag at that time?
A: Right on top of the hood of our vehicle he showed us everything and we learned that not only
Viagra, Cialis but he has also Valium 10, 120 tablets.[26]
xxxx
Q: Now, after these items which youve just mentioned considering of Valium 10, Viagra, Cialis
were brought out from his bag and placed on top of the hood of you(r) vehicle, what
did you do next at that time?

A: After seeing the other drugs, Valium 10, we effected the arrest and we brought him to SAIDSOTF.
Q: And what happened after you brought this male person to the SAID-SOTF?
A: We turned over the suspect.
Q: How about the items which you claimed to be with him at that time, what did you do with
them?
A: We turned over the suspect as well as the evidence we seized from him.
Q: After having turned over these items, Mr. Witness, what else did you do?
A: Afterwards, sir, we executed our Affidavit of Arrest that the investigator required.
Q: How about the items, what did you do with these from which you recovered from this male
person?
A: On February 20, 2008, we turned it over to the duty officer and to the investigator, sir.
Q: Before turning it over, Mr. Witness, what did you do with these items?
A: We put markings on them, sir.
Q: Who marked these items, Mr. Witness?
A: One of my colleague[s], sir, PO1 Victoriano Cruz.
Q: Where were you at that time when PO1 Cruz marked these items recovered from this male
person?
A: We were already at the office of SAID-SOTF, right in front of him, sir.
Q: And what markings were placed by PO1 Cruz on these items?
A: He put Kokoy for 120 tablets of Valium 10.[27]
Q: How about the other items, Mr. Witness, what markings were placed by PO1 Cruz?
A: Kokoy 2, Kokoy 3, Kokoy 4.
Q: And after that, what else did you do at that time?
A: We left the suspect to the investigation and then we brought him to the jail.
Q: In connection with the apprehension of this male person, can you recall having executed an
affidavit or any document?
A: We executed our Joint Affidavit of Arrest, sir.[28]
Moreover, it bears stressing that during the September 18, 2007 hearing, both parties stipulated to the
effect that the testimony of PO1 Cruz, as contained in the Joint Affidavit of Arrest, is corroborative with that of all the
other affiants.[29] Similarly, during the pre-trial conference, the parties stipulated on the testimony of PO2 Castillo, the
investigator who issued the Acknowledgment Receipt[30] of the seized drugs on behalf of SAID-SOTF and the Final
Investigation Report[31] on the incident. And lastly, the parties also stipulated on the testimony of the forensic chemist
who conducted the laboratory examination on the seized drugs and issued Physical Science Report Nos. D-12506S[32] and DT-130-06S,[33] which both yielded positive results for dangerous drugs. It was, in fact, due to these
stipulations that all other testimonies were dispensed with, as agreed to by both parties.
Therefore, it is evidently clear that the chain of custody of the illicit drug found in accused-appellants
presence was unbroken.
Warrantless Search and Arrest Were Legal and Valid
Further, accused-appellant challenges the legality of his warrantless search and arrest for the first time in
his appeal. He argues that such was illegal, since none of the instances wherein a search and seizure may be done
validly without a warrant was present.
Such argument is untenable.
First of all, accused-appellant never raised this issue before his arraignment. He never questioned the
legality of his arrest until his appeal. On this alone, the contention must fail. It has been ruled time and again that an
accused is estopped from assailing any irregularity with regard to his arrest if he fails to raise this issue or to move
for the quashal of the information against him on this ground before his arraignment.[34] Any objection involving the
procedure by which the court acquired jurisdiction over the person of the accused must be made before he enters his
plea; otherwise, the objection is deemed waived.[35]
In the instant case, accused-appellant even requested a reinvestigation during his initial arraignment, and,
as a result, his arraignment was postponed. He could have questioned the validity of his warrantless arrest at this
time but he did not. His arraignment was then rescheduled where he entered a plea of not guilty and participated in
the trial. Thus, he is deemed to have waived any question as to any defect in his arrest and is likewise deemed to
have submitted to the jurisdiction of the court.
What is more, Sec. 5, Rule 113 of the Rules on Criminal Procedure clearly provides for the instances when
a person may be arrested without a warrant, to wit:

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 just been committed and he has probable cause to believe
based on personal knowledge of facts or circumstances 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 is temporarily confined while his
case is pending, or has escaped while being transferred from one confinement to another.
(Emphasis supplied.)
Undoubtedly, the case at bar falls under Sec. 5(a) of Rule 113, that is, when the person to be arrested is
actually committing an offense, the peace officer may arrest him even without a warrant. However, a warrantless
arrest must still be preceded by the existence of probable cause. Probable cause is defined as a reasonable ground
of suspicion supported by circumstances sufficiently strong in themselves to induce a cautious man to believe that
the person accused is guilty of the offense charged. [36]
In People v. Mariacos, the Court further expounded on the definition of probable cause:
It refers to the existence of such facts and circumstances that can lead a reasonably
discreet and prudent man to believe that an offense has been committed, and that the items,
articles or objects sought in connection with said offense or subject to seizure and destruction by
law are in the place to be searched.
The grounds of suspicion are reasonable when, in the absence of actual belief of the
arresting officers, the suspicion that the person to be arrested is probably guilty of committing
the offense is based on actual facts, i.e., supported by circumstances sufficiently strong in
themselves to create the probable cause of guilt of the person to be arrested. A reasonable
suspicion therefore must be founded on probable cause, coupled with good faith on the part of
the peace officers making the arrest.[37]
Here, the arresting officers had sufficient probable cause to make the arrest in view of the fact that they
themselves heard accused-appellant say, Hey Joe, want to buy Valium 10, Cialis, Viagra? [38] which, in turn, prompted
them to ask accused-appellant what he was selling. When accused-appellant showed them the items, they identified
120 tablets of Valium 10, a regulated drug. The police officers then became obligated to arrest accused-appellant, as
he was actually committing a crime in their presencepossession of a dangerous drug, a violation of Sec. 11, Art. II of
RA 9165. Therefore, it is without question that the warrantless search and arrest of accused-appellant are legal and
valid.
All things considered, this Court sees no compelling reason to disturb the findings of the trial court. The
prosecution succeeded in establishing, with moral certainty, all the elements of the crime of illegal possession of
dangerous drugs: (1) the accused is in possession of an item or object which is identified to be a prohibited drug; (2)
such possession is not authorized by law; and (3) the accused freely and consciously possessed the said drug. [39]
WHEREFORE, the appeal is DENIED. The CA Decision in CA-G.R. CR-H.C. No. 03245 finding accusedappellant Sulpicio Sonny Boy Tan y Phua guilty of the crime charged is AFFIRMED.
SO ORDERED.

BONIFACIO DOLERA Y TEJADA,

Petitioner,

G.R. No. 180693

result of the laboratory examination showed that each of the sachets contained 0.10 grams of shabu, a dangerous
drug.

Present:
QUISUMBING, J., Chairperson,
CARPIO MORALES,
BRION,
DEL CASTILLO, and
ABAD, JJ.

- versus -

PEOPLE OF THE PHILIPPINES,

Respondent.

Promulgated:
September 4, 2009

The parties[9] having stipulated that forensic analyst Leonard M. Jabonillo examined the substances and
came up with his findings in his Report, his testimony was dispensed with.
Upon the other hand, petitioner, denying the charge, gave the following version:
He was standing infront of his house waiting for a ride to the public market when three men in civilian
clothes alighted from a white FX and forced him to board the vehicle.The three brought him to the police station
where he was asked to identify a drug pusher in their place. When he replied that he did not know of any, they told
him that tutuluyan nila ako. He was then detained and was subjected to inquest proceedings after four days. [10]
The trial court, by Decision[11] of July 20, 2005, convicted petitioner and sentenced him to suffer a jail term
of TWELVE YEARS AND ONE DAY as minimum andTHIRTEEN YEARS as maximum and to pay a fine
of P300,000. The trial court observed:
The court finds it quite improbable that police officers in broad daylight would just stop
and take away with them a person who is doing nothing but standing on the street in front of his
house.

DECISION
CARPIO MORALES, J.:
Bonifacio T. Dolera (petitioner) was charged before the Regional Trial Court of Quezon City with violation
of Section 11, Article II of Republic Act No. 9165 (R.A. 9165) or the Comprehensive Dangerous Drugs Act of 2002
under an Information reading
xxxx
That on or about the 14th day of August, 2003 in Quezon City, Philippines, the said
accused not being authorized by law to possess or use any dangerous drug, did then and there,
wilfully, unlawfully and knowingly have in [his] possession and control, Zero point twenty (0.20)
grams of white crystalline substance containing Methylamphetamine [sic] hydrochloride a
dangerous drug.[1]
CONTRARY TO LAW.
From the evidence for the prosecution, the following version is gathered.
On August 14, 2003, at 3:30 in the afternoon, PO2 Reynaldo Labon (PO2 Labon), PO1 Arnold Pealosa
(PO1 Pealosa) and PO2 Victor Aquino, having received a report of drug trafficking in the vicinity of Bicol Street in
Barangay Payatas, Quezon City, conducted a surveillance along the area.[2]
While at the target area, PO2 Labon saw petitioner, at a distance of seven meters, standing near an alley
adjoining Bicol Street, scrutinizing a transparent plastic sachet containing white crystalline substance. PO2 Labon,
who was in civilian clothes, thus alighted from the vehicle, followed by PO1 Penalosa, and approached petitioner.
[3]
After introducing himself as a policeman, PO2 Labon asked petitioner what he was holding, but the latter, who
appeared natulala,[4] did not reply.
Suspecting that the white crystalline substance inside the plastic sachet was shabu, PO2 Labon
confiscated the same[5] and handcuffed petitioner. PO1 Pealosa then frisked petitioner and recovered a heat-sealed
plastic sachet also containing white crystalline substance from the right front pocket of petitioners pants. After
informing him of his constitutional rights, petitioner was brought to the police station for further investigation. [6]
At the police station, PO2 Labon and PO1 Pealosa marked the plastic sachets with their respective initials
RL and AP[7] before turning them over to the case investigator.Later in the day, the two plastic sachets including their
contents were brought to the PNP Crime Laboratory for examination. The Chemistry Report[8] which recorded the

xxxx
The accused was brought to the police station for investigation and when asked if it is
true that he has shabu, the answer of the accused: Wala naman po does not inspire the
confidence that an innocent person, who is 35 years old and married with a baby, would have
said.
Moreover, the defense of the accused becomes more unconvincing in view of the fact
that not even his wife with a baby and his auntie who lives in the same house with him came to
court despite the lapse of a long time, to vouch for the accused. His neighbors whom the
accused said saw him being arrested likewise did not come forward to corroborate his claimed
innocence.(Underscoring supplied)
The Court of Appeals, before which appellant appealed and questioned, among other things, his
warrantless arrest, by Decision[12] of October 30, 2006, affirmed petitioners conviction. In brushing aside appellants
questioning of his warrantless arrest, the appellate court held that he had waived the same when he submitted
himself to the jurisdiction of the trial court.
On the merits, the appellate court held:
The bare denial of accused-appellant that shabu was found in his possession by the
police officers deserves scant consideration. Accused-appellant testified that his arrest was
witnessed by several persons who know him and who are known to him, however, he did not
present anyone of them to corroborate his claim that no shabu was recovered from him when he
was arrested by the police officers. It has been ruled time and again that a mere denial, just like
alibi, is a self-serving negative evidence which cannot be accorded greater evidentiary weight
than the declaration of credible witnesses who testify on affirmative matters. As between a
categorical testimony that rings of truth on one hand, and a bare denial on the other, the former
is generally held to prevail.Moreover, accused-appellant admitted that he does not know the
police officers who arrested him as it was the first time that he saw them. In fact, accusedappellant does not impute any improper motive against the police officers who arrested him. The
presumption that the police officers performed their duties in a regular manner, therefore,
stands. (Emphasis and underscoring supplied)

His motion for reconsideration having been denied by Resolution [13] of November 21, 2007, petitioner filed
the present petition for review.
Petitioner initially takes issue on the appellate courts ruling that he waived any objection to his arrest when
he entered a plea upon arraignment and actively participated in the trial. Underscoring that an appeal in a criminal
case opens the whole case for review, petitioner reiterates his lament that he was arrested without a warrant,
asserting that there was nothing unusual in [his] behavior then which w[ould] engender a genuine reason to believe
that he was committing something illegal which would compel the police officers to approach him. [14]
Respecting the Chemistry Report, petitioner contends that it is hearsay, as the forensic analyst who
prepared the document was never presented to identify it and testify thereon.[15]
Moreover, petitioner contends that the prosecution failed to establish the chain of custody of the seized
illegal drugs to thus cast serious doubt on whether the specimens presented in court were the ones allegedly
confiscated from him.[16]
The Solicitor General, maintaining, on the other hand, that the arrest of petitioner needed no warrant as it
was done while petitioner was committing illegal possession ofshabu, posits: Since PO2 Labon and PO1 Pealosa
were conducting a surveillance based on a report of rampant drug trafficking in the area, the chance encounter with
petitioner who was holding a plastic sachet with white crystalline contents gave the police officers reasonable
suspicion to accost him and ask about the contents thereof. The police officers suspicion was all the more
heightened when petitioner was dumbfounded when asked about the plastic sachet. [17]
The Solicitor General further posits that the prosecution did not have to present the forensic analyst in view
of petitioners stipulation that the two plastic sachets seized from him were found to be positive for shabu.
Finally, the Solicitor General maintains that the seized plastic sachets were properly submitted to the police
crime laboratory for testing, and, at all events, petitioner failed to rebut the presumption of regularity in the
performance by the police officers of their official duties.
The petition is meritorious.
Prefatorily, the Court finds in order the appellate courts observation that it is too late for petitioner to
question the legality of his arrest in view of his having already entered his plea upon arraignment and participated at
the trial. Having failed to move to quash the information on that ground before the trial court, [18] and having submitted
himself to the jurisdiction of the trial court, any supposed defect in his arrest was deemed waived. For the legality of
an arrest affects only the jurisdiction of the court over his person.[19]
It is with respect to the failure of the prosecution to prove the chain of custody of the allegedly seized
evidence that the Court departs from the findings of the appellate and lower courts to warrant a reversal of
petitioners conviction.
For a prosecution for illegal possession of a dangerous drug to prosper, it must be shown that (a) the
accused was in possession of an item or an object identified to be a prohibited or regulated drug; (b) such
possession is not authorized by law; and (c) the accused was freely and consciously aware of being in possession of
the drug.[20]
Thus Mallillin v. People[21] emphasized:
Prosecutions for illegal possession of prohibited drugs necessitates [sic] that the
elemental act of possession of a prohibited substance be established with moral certainty,
together with the fact that the same is not authorized by law. The dangerous drug itself
constitutes the very corpus delicti of the offense and the fact of its existence is vital to a
judgment of conviction. Essential therefore in these cases is that the identity of the prohibited
drug be established beyond doubt. Be that as it may, the mere fact of unauthorized possession
will not suffice to create in a reasonable mind the moral certainty required to sustain a finding of
guilt. More than just the fact of possession, the fact that the substance illegally possessed

in the first place is the same substance offered in court as exhibit must also be
established with the same unwavering exactitude as that requisite to make a finding of
guilt. The chain of custody requirement performs this function in that it ensures that
unnecessary doubts concerning the identity of the evidence are removed. (Italics in the
original; emphasis and underscoring supplied)
The standard operating procedure on the seizure and custody of dangerous drugs is found in Section 21, Article II of
R.A. No. 9165 which provides:
1) The apprehending team having initial custody and control of the drugs shall,
immediately after seizure and confiscation, physically inventory and photograph the
same in the presence of the accused or the person/s from whom such items were
confiscated and/or seized, or his/her representative or counsel, a representative from the
media and the Department of Justice (DOJ), and any elected public official who shall be required
to sign the copies of the inventory and be given a copy thereof. (Emphasis supplied)
Section 21(a) of Article II of the Implementing Rules and Regulations of R.A. No. 9165 more specifically
mandates that:
(a) The apprehending officer/team having initial custody and control of the drugs shall,
immediately after seizure and confiscation, physically inventory and photograph the same in the
presence of the accused or the person/s from whom such items were confiscated and/or seized,
or his/her representative or counsel, a representative from the media and the Department of
Justice (DOJ), and any elected public official who shall be required to sign the copies of the
inventory and be given a copy thereof; Provided, that the physical inventory and photograph
shall be conducted at the place where the search warrant is served; or at the nearest
police station or at the nearest office of the apprehending officer/team, whichever is
practicable, in case of warrantless seizures; Provided, further that non-compliance with
these requirements under justifiable grounds, as long as the integrity and the evidentiary
value of the seized items are properly preserved by the apprehending officer/team, shall
not render void and invalid such seizures of and custody over said items. (Emphasis and
underscoring supplied)
Thus, with respect to the marking of dangerous drug by the apprehending officer or team in case of
warrantless seizures such as in this case, it must be done at the nearest police station or at the nearest office of the
apprehending officer/team, whichever is practicable. This is in line with the chain of custody rule. People v.
Sanchez[22] elucidates:
. . . [I]n case of warrantless seizures such as a buy- bust operation, the physical
inventory and photograph shall be conducted at the nearest police station or office of the
apprehending officer/team, whichever is practicable; however, nothing prevents the
apprehending officer/team from immediately conducting the physical inventory and photography
of the items at the place where they were seized, as it is more in keeping with the laws intent of
preserving their integrity and evidentiary value.
What Section 21 of R.A. No. 9165 and its implementing rule do not expressly specify
is the matter of marking of the seized items in warrantless seizures to ensure that the evidence
seized upon apprehension is the same evidence subjected to inventory and photography when
these activities are undertaken at the police station rather than at the place of
arrest. Consistency with the "chain of custody" rule requires that the marking
of the seized items to truly ensure that they are the same items that enter the chain and
are eventually the ones offered in evidence should be done (1) in the presence of the
apprehended violator (2) immediately upon confiscation. This step initiates the process of
protecting innocent persons from dubious and concocted searches, and of protecting as well the

apprehending officers from harassment suits based on planting of evidence under Section
29 and on allegations of robbery or theft. (Emphasis and underscoring supplied)
For greater specificity, marking means the placing by the apprehending officer or
the poseur-buyer of his/her initials and signature on the item/s seized. If the physical inventory
and photograph are made at the nearest police station or office as allowed by the rules,
the inventory and photography of the seized items must be made in accordance with Sec.
2 of Board Resolution No. 1, Series of 2002, but in every case, the apprehended violator
or counsel must be present. Again, this is in keeping with the desired level of integrity that the
handling process requires. Thereafter, the seized items shall be placed in an envelope or an
evidence bag unless the type and quantity of the seized items require a different type of handling
and/or container. The evidence bag or container shall accordingly be signed by the handling
officer and turned over to the next officer in the chain of custody. (Italics in the original; emphasis
and underscoring supplied)
Ranged against these evidentiary norms, the prosecutions terse treatment of its exacting duty to prove
beyond reasonable doubt the guilt of accused-petitioner founders.Consider PO1 Pealosas following testimony:
FIS. ARAULA:
You said you turned over the confiscated item to the investigator?
WITNESS:
Yes sir.
FIS. ARAULA:
Before you turned over the item what did you do with that item?
WITNESS:
We marked it sir.
FIS. ARAULA:
What markings was placed on the items before it was given to the Police Investigator?
WITNESS:
Our initial sir.
FIS. ARAULA:
What is your initial?
WITNESS:
AP sir.

x x x x (Emphasis and underscoring supplied)

[23]

From the foregoing testimony of prosecution witness PO2 Penalosa which was essentially echoed by
prosecution witness PO2 Labon, there is no showing how the flow of the custody of the drugs went from the time of
the arrest of petitioner and alleged confiscation of the sachets up to the turnover thereof at the police station to the
investigator according to PO2 Penalosa, to the desk officer according to PO2 Labon.
Neither is there a showing that the items were inventoried or photographed and marked in the presence of
petitioner in accordance with statutory requirements. In fact, where in the police station and at what stage of the
investigation was the supposed marking of evidence done were not even indicated.
And there is no indication whether the investigator and the desk officer were one and the same person,
and what steps were undertaken to insure the integrity of the evidence.
Notably, the record shows that it was PO1 Pealosa who delivered the items to the crime laboratory. [24] How
they were turned over to him by the investigator or desk officer, the prosecution failed to give even a simple
indication thereof.
There is thus a reasonable likelihood of substitution along the chain in that the two plastic sachets that
tested positive for shabu were different from the items allegedly seized from petitioner. The Court has long
considered such possibility of substitution as fatal for the prosecution. [25]
Worse, the two marked plastic sachets were not even presented, hence, not identified in open
court by the police officers-witnesses and there is no explanation extant in the record of what happened to
them after their laboratory examination.
Segueing to the Solicitor Generals assertion that appellant already admitted that the two plastic sachets
were seized from him and that the contents thereof were tested positive for shabu as contained in the trial courts
Order of September 13, 2004 reading:
It is hereby stipulated by the parties that the items allegedly confiscated from the
accused were submitted to the crime lab for examination and the findings were put into writing
and the same were marked by the prosecution as EXHIBIT B-Request for laboratory
examination; EXHIBIT C Chemistry Report No. D-765-2003; C-1 Findings; EXHIBIT D
Certification; EXHIBIT E Specimen A; E-1 marking lmj; E-2 marking RL; EXHIBIT F Specimen B;
F-1 marking lmj; F-2 marking AP and EXHIBIT G Brown envelope.
In view of this stipulation, the testimony of Engr. Leonard Jabonillo is hereby
dispensed with.
x x x x (Italics, emphasis and underscoring supplied),

FIS. ARAULA:
What about the items, what markings?

the same fails to impress.

WITNESS:
RL Reynaldo Labon sir.

The above-quoted stipulation of facts is self-explanatory. What was stipulated was that, among other
things, the items allegedly confiscated were submitted for laboratory examination.

xxxx
FIS. ARAULA:
After you turned over the specimen to the investigator, what happened to the specimen?
WITNESS:
It was turned over to the PNP Crime Laboratory sir.

The Chemistry Report only confirmed the contents of two plastic sachets. Whether they were the same
packets allegedly confiscated from petitioner, the prosecution failed to establish as there was yet again an
unexplained break in the chain.
That the prosecution offered in evidence the request for laboratory examination, the chemistry report and
the certification from the forensic analyst [26] has no bearing on the question of whether the specimens submitted for
chemical analysis were the same allegedly seized from petitioner. All that these exhibits proved

were the existence and authenticityof the request for laboratory examination and the results of said examination, but
not the required chain of custody from the time of seizure of the evidence until its presentation in court.
While there is no need to present all persons who came into contact with the seized drugs to testify in
court,[27] the prosecution still has to convincingly establish that the chain of custody remained unbroken throughout,
and the seized items specifically identified. This the prosecution failed to discharge.
The appellate courts reliance on the presumption of regularity in the performance of official functions would
not suffice to uphold petitioners conviction. Once challenged by evidence, such as in this case, the presumption of
regularity cannot be regarded as binding truth and cannot prevail over the presumption of innocence of petitioneraccused.[28]
Although petitioners defense is denial which, standing alone, is inherently weak, the Court has repeatedly
stressed that the conviction of an accused must rest on the strength of the prosecutions evidence and not on the
weakness of his defense.
The prosecution having failed to overturn the constitutional presumption of innocence in favor of petitioner,
his acquittal is in order.
A final word. The Court notes the trial courts seemingly haphazard consideration of the circumstances of
the case as mirrored in its decision. Its three-paragraph ratio decidendi only discussed the defense evidence and
even rendered judgment on the basis of conjectures and suppositions. Noticeably, the decision never alluded to the
prosecution evidence, nor even tackled in passing the basis of the penalties it imposed.
Exhorted to be extra vigilant in trying drug-related cases, courts should give more than lip service to the
mandate of administering justice by undertaking a serious and comprehensive consideration of the pros and cons of
the evidence offered by both the prosecution and defense in determining the merits of a case. [29]
WHEREFORE, for failure of the prosecution to prove his guilt beyond reasonable doubt, petitioner,
BONIFACIO T. DOLERA, is ACQUITTED of the crime of illegal possession of dangerous drugs.
Let a copy of this Decision be furnished the Director of the Bureau of Corrections, Muntinlupa City who
is ORDERED to cause the immediate release of petitioner, unless he is being lawfully held for another cause, and to
inform this Court of action taken within ten days from notice.
No pronouncement as to costs.
SO ORDERED.