Republic of the PhilippinesSUPREME COURTManila

EN BANC

G.R. No. L-34038 June 18, 1976

Customhouse, Pasay City, petitioner, vs.District, stationed at Pasig, Rizal, and CESAR T. MAKAPUGAY, respondents.

G.R. No. L-34243 June 18, 1976

NICANOR MARCELO, petitioner, vs.HON. ONOFRE A. VILLALUZ, as Judge of the Circuit Criminal Court, 7th Judicial District stationed at Pasig, Rizal, and SALVADOR T. MASCARDO, as Collector of Customs stationed at the MIA Airport Customhouse,respondents.

G.R. No. L-36376 June 18, 1976

CALIXTO D. ENRIQUEZ, REYNALDO REYES AND LUCILA ENRIQUEZ, petitioners, vs.HON. ONOFRE A. VILLALUZ, GREGORIO CONDE AND ANASTACIA TORILLO, respondents.

G.R. No. L-38688 June 18, 1976

FRANCISCO P. FELIX, petitioner, vs.THE HON. JUDGE ONOFRE A. VILLALUZ and FELIX C. HALMAO, respondents.

G.R. No. L-39525 June 18, 1976

PEDRO E. NIEVA, JR., petitioner, vs.HON. ONOFRE A. VILLALUZ, in his capacity as Judge of the Circuit Criminal Court, 7th Judicial District, JOSE ARELLANO, and THE PEOPLE OF THE PHILIPPINES, respondents.

G.R. No. L-40031 June 18, 1976

PEDRO E. NIEVA, petitioner, vs.HON. ONOFRE A. VILLALUZ, in his capacity as Judge of the Circuit Criminal Court, 7th Judicial District, JOSE ARELLANO and THE PEOPLE OF THE PHILIPPINES, respondents.

MAKASIAR, J.:p

G.R. No. L-34038

On July 1, 1971, petitioner Collector of Customs, Salvador T. Mascardo filed against Cesar T. Makapugay, a letter complaint with respondent Judge of the Circuit Criminal Court for violation of: (a) Section 174 of the National Internal Revenue Code, as amended by Republic Act No. 4713, (b) Central Bank Circular No. 265, in relation to Section 34 of Republic Act No. 265, otherwise known as The Central Bank Act, and (c) Section 3601 and 3602 of Republic Act No. 1937, in relation to Sections 2505 and 2530 (m) 1 of the same Act, claiming that Cesar T. Makapugay "with malicious intention to defraud the government criminally, willfully and feloniously brought into the country FORTY (40) cartons of "untaxed blue seal" Salem cigarettes and FIVE (5) bottles of Johny Walker Scotch Whiskey, also "untaxed", without the necessary permit from the proper authorities. The respondent submitted a Baggage Declaration Entry which did not declare the said articles. The Customs Examiner assigned further asked him if he has something more to declare but the answer was in the negative. And in utter disregard of existing Central Bank Circulars particularly C.B. Circular 265, as amended, the respondent brought into the country various Philippine Money in the amount of Two Thousand Two Hundred Eighty (P2,280.00) Pesos cleverly hidden in one of the pieces of baggage examined by the assigned customs examiner, without any prior permit from the Central Bank authorities. ... " (p. 11, rec.).

Respondent Judge assumed jurisdiction to conduct and did conduct the preliminary investigation, and on July 6, 1971, issued the challenged order, dismissing "the case with prejudice and ordering the return to private respondent the amount of P2,280.00, his passport No. Ag-2456 FA - No. B103813, and one (1) box of air-conditioning evaporator only, as well as the forfeiture of forty (40) cartons of untaxed blue seal Salem cigarettes and five (5) bottles of Johnny Walker Scotch Whiskey" (p. 13, rec.).

Armed with said order, private respondent Makapugay demanded that petitioner release the articles so stated. Petitioner Collector of Customs refused to obey the order due to the "prior institution of seizure proceedings thereon." The refusal prompted respondent Makapugay to file a complaint for "Open Disobedience" under Article 231 of the Revised Penal Code, before the City Fiscal of Pasay City.

Hence, this petition for certiorari with preliminary injunction, seeking to annul and set aside the order dated July 6, 1971 on the ground that respondent Judge has no power to conduct a preliminary investigation of criminal complaints directly filed with him, cannot legally order the dismissal "with prejudice" of a criminal case after conducting a preliminary investigation thereon, and is without authority to order the return of articles subject of seizure proceedings before Customs authorities.

In due time, respondents filed their respective answers to the petition and subsequently both parties submitted their respective memoranda in lieu of oral argument.

G. R. No. L-34243

On June 22, 1971, respondent Collector of Customs filed a letter- complaint with respondent Judge against petitioner Nicanor Marcelo for an alleged violation of Section 3602 in relation to Section 2505 of Republic Act 1937, otherwise known as the Tariff and Customs Code, supposed to have been committed in the following manner:

... Mr. Marcelo who is an arriving passenger from Hongkong on board a Philippine Air Lines plane, Flight 307, on June 22, 1971, criminally, feloniously, and with intention to defraud the government did not declare the contents of his pieces of baggage in the Baggage declaration Entry nor with the assigned Customs Examiner. ... When his pieces of baggage were examined, instead of personal effects as declared in the Baggage Declaration Entry, what were found were various assorted Watches, Bags, Montagut shirts and Dress materials which are highly taxable.

The act of passenger Marcelo in intentionally refusing to declare the said articles in the Baggage Declaration Entry, and before the Customs Examiner despite inquiries made, constitute a criminal offense within the meaning of Section 3602 of the Tariff and Customs Code of the Philippines. ... (p. 19, rec.).

The criminal complaint having been docketed as Case No. CCC-VII-854-P.C., the respondent Judge assumed jurisdiction over the objection of petitioners counsel, conducted the preliminary examination and investigation, simultaneously in the manner provided for by Section 13, Rule 112 of the New Rules of Court, and thereafter on October 6, 1971 issued the following order:

WHEREFORE, there being a preliminary investigation and examination conducted by the Court and considering that the respondent was given a chance to defend himself let a Warrant of Arrest be issued for his apprehension. The respondent is hereby ordered to post a bond in the amount of P5,000.00 for his provisional release.

Pursuant to Section 6, Rule 135 of the New Rules of Court, in relation to Section 13, Rule 113 thereto, the City Fiscal of Pasay is hereby ordered to file the corresponding information against the respondent before this court of competent jurisdiction within FORTY EIGHT (48) HOURS from receipt hereof (p. 23, rec.)

Petitioner Nicanor Marcelo filed this action for certiorari with preliminary injunction, impugning the validity of the order of respondent Judge dated October 6, 1971, on the same ground as the petition in G.R. No. L-34038.

On October 20, 1971, the Supreme Court adopted resolution requiring respondents to rile an answer and likewise issued a writ of preliminary injunction, "restraining respondent Judge, his representatives, assigns or persons acting upon his orders, place or stead, from executing, enforcing and implementing his order of October 6, 1971 ... "(p. 32, rec.)

In compliance therewith, respondent Judge filed a petition for admission of answer on November 29, 1971 (pp. 43-44, rec.), which was granted by this Court in its December 13, 1971 resolution (p. 62, rec.).

On the other hand, respondent Collector of Customs, through the Solicitor General, filed a manifestation on February 1, 1972, adopting as his answer to the petition, the legal grounds averred in the original petition in G.R. No. ,Collector of Customs, etc. versus Hon. Onofre A. Villaluz, etc., et al (p. 72, rec.).

On June 13, 1972, the Supreme Court by resolution resolved to consider the case submitted for decision after noting the failure of petitioner to file his memorandum (p. 94, rec.).

G. R. No. L-36376

On February 22, 1973, private respondents Gregorio Conde and Anastacia Torillo, filed a complaint directly with the Circuit Criminal Court, indicting petitioners with violations of the Anti-Graft Law.

The complaint was ultimately docketed and on the same day (February 22, 1973), respondent Judge forthwith issued an order of the following tenor:

Considering that the complaint filed ... sufficient in form and substance, the same having been filed in accordance with Section 13, Rule 112 of the New Rules of Court, and pursuant to the doctrine laid down by the Supreme Court in the case of "Mateo vs. Villaluz," let the preliminary investigation of this case be set on February 24, 1973 at 8:00 o'clock in the morning (p. 22, rec.).

On the day set, petitioners appeared at the sala of respondent Judge who proceeded to conduct a preliminary investigation of the case. The same was reset on February 26, 1973.

Immediately before the hearing of February 26, 1973, petitioners, through counsel, filed an "Urgent Motion to Suspend Preliminary Investigation" contesting the power of the respondent Judge to conduct the preliminary examination and investigation (p. 23, rec.), which was denied by respondent Judge in his order dated February 27, 1973 (p. 31, rec.). Counsel for petitioners then asked for time to raise the issue before this Court, which respondent Judge granted by giving petitioners a period of just one (1) day to seek relief from this Tribunal.

Accordingly, herein petitioners filed this petition.

On March 2, 1973, this Court required respondents to answer the petition and issued a temporary restraining order "enjoining respondent Judge from ... causing and effecting the arrest of petitioners herein" (p. 39, rec.).

In his answer filed on March 14, 1973, respondent Judge, invoking the same arguments in G.R. No. L-34243, held on to the view that the Circuit Criminal Courts are vested with the power and authority to conduct preliminary investigations.

G. R. No. L-38688

On May 23, 1974, private respondent Felix Halimao filed a criminal complaint directly with the Circuit Criminal Court presided over by respondent Judge charging herein petitioner with alleged violations of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, which complaint was docketed as Criminal Case No. Prel. Inv. 116-Rizal.

At the hearing of May 27, 1974, petitioner, through counsel, filed an "Urgent Motion to Suspend Preliminary Investigation" (p. 9, rec.) based on the ground that respondent Judge has no authority to conduct the same.

After arguments by counsels for both parties, the respondent Judge denied petitioner's motion. An oral motion for reconsideration was likewise denied (pp. 14-15, rec.).

Hence, this petition.

On May 31, 1974, this Court by resolution gave due course to the petition and issued a restraining order, "enjoining respondent Judge, his agents, representatives, and/or any person or persons acting upon his orders or in his place or stead from proceeding further with the preliminary investigation ... " (p. 24, rec.)

On June 17, 1974, it appearing that the case involved in the petition is criminal in nature, the Court required herein petitioner to IMPLEAD the People of the Philippines as party-respondent (p. 26, rec.). In conformity thereto, petitioner through counsel, filed on June 28, 1974 an amended petition impleading The People (pp. 49-50, rec.).

Except for the Solicitor General who appeared for The People of the Philippines, respondents in answer, frontally met the averments of petitioner.

G. R. No. L-39625

On October 24, 1974, petitioner filed this instant petition seeking to annul "any preliminary investigation conducted by respondent Judge in Preliminary Inv. No. 72-Rizal, Circuit Criminal Court, 7th Judicial District, as well as the warrant, if any, that may be issued for the arrest and imprisonment of petitioner" and to enjoin permanently respondent Judge from conducting preliminary investigations and from ordering petitioner's arrest.

On October 30, 1974, the Court required the respondents to file their answer within ten (10) days from notice thereof and issued, effective immediately, a temporary restraining order against respondent Judge (p. 64, rec.).

On November 13, 1974, the Solicitor General filed a manifestation requesting to be excused from filing an answer considering that in three other cases (The Collector of Customs v. Hon. Onofre A. Villaluz, G.R. No. L-34038; Nicanor Marcelo v. Hon. Onofre A. Villaluz, G.R. No. L-34243; and Francisco Felix v. Hon. Onofre A. Villaluz, G.R. No. L-38688) which involve the same legal issue, his office maintains that respondent Judge has no authority to conduct a preliminary investigation of criminal cases which he may try and decide under Republic Act No. 5179 (p. 81, rec.).

On November 20, 1974, private respondent filed his answer (pp. 87-104, rec.).

Petitioner, on January 22, 1975, filed a motion praying that the instant case be consolidated and decided jointly with G.R. Nos. L-34038, L-34243, L-36376 and L-38688 as they involve the same issue; and that the memoranda filed for petitioners in said four cases be reproduced and adopted as the memorandum for petitioner in this case, which should be deemed submitted for decision together with the aforementioned cases (pp. 122-124, rec.). Said motion was granted in the resolution of February 10, 1975 (p. 129, rec.).

In his pleading dated February 5, 1975, private respondent (pp. 130-132, rec.) stated that he joins the petitioner in his plea for the consolidation of the instant case with cases Nos. L-34038, L-36376 and L-38688 and prayed that the memorandum filed by respondent in L-38688 be considered reproduced and adopted as the memorandum for private respondent in this case, in addition to the affirmative defenses and arguments contained in private respondent's answer to the petition, and that this case be submitted for decision together with the aforementioned cases (p. 137, rec.).

The records disclosed the following antecedent facts.

On January 11, 1974, herein private respondent Jose Arellano filed a complaint against Pedro E. Nieva, Jr., herein petitioner, together with his wife Pacita and daughter Patricia N. with the Circuit Criminal Court, Seventh Judicial District, Pasig, Rizal, for violation of the Anti-Graft and Corrupt Practices Act (RA No. 3019) in connection with the P230,000.00 industrial loan obtained by the Areson Woodtech Manufacturing Company headed by the complainant, Jose Arellano, from the Development Bank of the Philippines, where herein petitioner holds the Position of Auditor. The cm was docketed therein as Criminal Case Prel. Inv. CCC-VII-72 Rizal (pp. 1-2, 90-91, pp. 14-16 [Annex "A"] rec.).

On the same day the aforesaid complaint was filed in court, respondent Judge issued an order that reads:

Pursuant to Section 14, Rule 112 of the New Rules of Court in relation to the doctrine laid down by the Supreme Court in the mu of "Mateo versus Villaluz", Assistant City Fiscal Teodoro B. Santos is hereby ordered to conduct the preliminary investigation of the above-entitled case within five (5) days from receipt hereof and to file the necessary information in a court of competent jurisdiction if the evidence so warrants.

... (pp. 2, 91 [Annex "B"], pp. 21-22, rec.).

On May 22, 1974, investigating Fiscal Teodoro B. Santos endorsed the records of the case back to respondent Judge, because

... (T)he facts and circumstances which has (sic) been the basis of this instant suit is the same set of first and circumstances and involving the same parties in a case of ESTAFA THRU FALSIFICATION now pending preliminary investigation and also before this Honorable Court. Hence, this endorsement in order to avoid duplication of effort and time in' the resolution and disposition of the same incident.

In an urgent ex-parte motion dated May 24, 1974 filed with the Circuit Criminal Court pursuant to paragraph 1 of the Joint Circular of the Department of Justice and the Department of National Defense dated April 29, 1974, herein private respondent prayed that the endorsement of Fiscal Santos be given due course and that the preliminary investigation be conducted by the respondent Judge (pp. 3, 92, 104 [Annex "I"], rec.).

Herein petitioner opposed the same in a pleading dated June 1, 1974 (p. 3, pp. 40-49 [Annex "F"], rec.), which was amplified in another pleading dated September 24, 1974 (pp. 3, 50-59 [Annex "G"], rec.).

Under date of June 18, 1974, private respondent filed a motion to strike out herein petitioner's opposition to complainant's ex parte urgent motion for preliminary investigation in view of the

failure of herein petitioner's counsel to comply with the order of the Court to furnish a copy of his opposition to complainant Jose Arellano (pp. 93, 105-106 [Annex "2"], rec.).

On September 24, 1974, herein petitioner filed his opposition to the motion to strike out herein respondent's opposition (pp. 7, 55-59 [Annex "G"], rec.). On the same day, a hearing was conducted by the respondent Judge on the urgent motion for preliminary investigation and immediately thereafter, he denied said opposition of herein petitioner (Annex "H", p. 62, pp. 3, 93, rec.).

Hence, this petition.

G. R. No. L-40031

On November 2, 1973, Jose Arellano, private respondent herein, filed with the Circuit Criminal Court at Pasig, Rizal, a complaint charging herein petitioner with estafa, allegedly committed under the circumstances provided for in paragraph 4 1(b) Article 315 of the Revised Penal Code (p. 12, rec.). Said complaint was subsequently docketed as CCC Case No. Prel. Inv. -65-Rizal. Thereupon, respondent Judge proceeded to conduct the preliminary investigation in question. After the termination of the proceedings, respondent Judge issued on May 31, 1974 the challenged resolution which reads:

Wherefore, pursuant to Section 13, Rule 113 of the New Rules of Court, Assistant City Fiscal Teodoro B. Santos is hereby ordered to file the necessary information for the crime of Estafa against respondent Pacita Nieva, in a court of competent jurisdiction, within forty-eight (48) hours from receipt hereof.

Let a warrant of arrest be issued for the immediate apprehension of respondent Mrs. Pacita Nieva, and for her provisional liberty, she is hereby ordered to post a bond in the amount of P20,000.00. (p. 24, rec.).

On July 26, 1974, petitioner's counsel filed an urgent motion to declare the preliminary investigation proceedings null and void ab initio due to lack of jurisdiction on the part of the court. to conduct the same, re-echoing the arguments invoked by petitioners in G. R. Nos. L-34038, L-34243, L-36376 and L-38688 (p. 14, rec.).

In an order dated August 8, 1974, respondent Judge denied the same (p. 22, rec.).

On January 28, 1975, this Court by resolution required respondents to file an answer to the petition and not to move for the dismissal of the same. The Court further' resolved to consolidate the case with Cases Nos. L-38688, L-34038, L-34243, and L-36376 (p. 26, rec.).

In a manifestation filed on February 10, 1975, the Solicitor General requested that he be excused from filing an answer on the ground that in three cases (G.R. Nos. L-34038, L-34243

and L-38688), which involve the same legal issue, the counsel for the People has taken the position that respondent Judge has no authority or jurisdiction to conduct a preliminary investigation of criminal cases which he may try and decide under Republic Act No. 5179.

Private respondent, on the other hand, through the Citizens Legal Assistance Office of the Department of Justice, filed his answer on February 20, 1975, maintaining that respondent Judge has jurisdiction to conduct preliminary investigation invoking particularly Section 13, Rule 112 of the Revised Rules of Court in relation to Sections 1, 3 and 6 of Republic Act No. 5179.

The one common legal issue posed by these six cases is whether a Circuit Criminal Court possesses the power to conduct preliminary investigations. Neither the explanatory note to House Bill No. 9801 (now R.A. No. 5179,) nor the available Congressional debates intimate that Circuit Criminal Courts are clothed with the authority to conduct preliminary examinations and investigations (Congressional Records of House, March 28, 1967, pp. 41-45; May 15, 1967).

WE therefore examine the law.

Petitioners, in maintaining that respondent Judge has no such power, rest their claim on Section I of Republic Act No. 5179, which provides:

In each of the sixteen judicial districts for the Court of First Instance as presently constituted, there is hereby created a Circuit Criminal Court with limited jurisdiction, concurrent with the regular Court of First Instance, to try and decide the following criminal cases falling under the original and exclusive jurisdiction of the latter:

a. Crimes committed by public officers, crimes against persons and crimes. against property as defined and penalized under the Revised Penal Code, whether simple or complex with other crimes;

b. Violations of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, ... ;

c. Violations of Sections 3601, 3602 and 3604 of the Tariff and Customs Code and Sections 174, 175 and 345 of the National Internal Revenue Code. (emphasis supplied).

Petitioners argue that said courts, having been conferred limited jurisdiction, cannot exercise such power of preliminary investigation, the same not being embraced and contemplated within its given function to "try and decide" specific criminal cases.

What is limited by Republic Act No. 5179 is the scope of the cases that may be tried by Circuit Criminal Courts.

Circuit Criminal Courts are of limited jurisdiction, only because they cannot try and decide all criminal cases falling under the jurisdiction of the Courts of First Instance as courts of general jurisdiction. They can only take cognizance of cages expressly specified in Section 1 of Republic Act No. 5179, as amended by Presidential Decree No. 126. Nevertheless, they have the same powers and functions as those conferred upon regular Courts of First Instance necessary to effectively exercise such special and limited jurisdiction. This is plain and evident from Sections 3 and 6 of their organic law, Republic Act No. 5179:

Section 3. The provisions of all laws and the Rules of Court relative to the judges of the Courts of First Instance and the trial, and disposition and appeal of criminal cases therein shall be applicable to the circuit judge and the cases cognizable by them insofar as they are not inconsistent with the provisions of this act.

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Section 6. ... Unless inconsistent with the provisions of this Act, the Circuit Criminal Courts shall have the same powers as those conferred by the Judiciary Act and the Rules of Court upon regular Courts of First Instance, insofar as may be necessary to carry their jurisdiction into effect.

Judges of the regular Courts of First Instance are expressly conferred the authority to conduct preliminary examination and investigation by Sections 13 and 14 of Rule 112 of the Revised Rules of Court:

Section 13. Preliminary examination and investigation by the judge of the Court of First Instance. — Upon complaint filed directly with the Court of First Instance, without previous preliminary examination and investigation conducted by the fiscal, the judge thereof shall either refer the complaint to the justice of the peace referred to in the second paragraph of Section 2, hereof - for preliminary examination and investigation, or himself conduct both preliminary examination and investigation simultaneously in the manner provided in the preceding sections, and should he find reasonable ground to believe that the defendant has committed the offense charged, he shall issue a warrant for his arrest, and thereafter refer the case to the fiscal for the filing of the corresponding information. (emphasis supplied).

Section 14. Preliminary examination and investigation by provincial or city fiscal or by state attorney in cases cognizable by the Court of First Instance. — Except where an investigation has been conducted by a judge of first instance, justice of the peace or other officer in accordance with the provisions of the preceding sections no information for an offense cognizable by the Court of First Instance shall be filed by the provincial or city fiscal, or state attorney, without first giving the accused a chance to be heard in a preliminary investigation conducted by him or by his assistant by issuing a corresponding subpoena. ...

The power of preliminary examination and investigation, which may be exercised by judges of the Circuit Criminal Courts, is without doubt, "not inconsistent with the provisions of Republic Act No. 5179," and likewise, "necessary to carry their jurisdiction into effect."

Moreover, Congress further confirmed that the Court of First Instance has the power to conduct preliminary investigation by approving on September 8, 1967 Republic Act No. 5180, prescribing a uniform system of preliminary investigation by all government prosecutors, which provides:

Sec. 1. Notwithstanding any provision of law to the contrary and except when an investigation has been conducted by a Judge of First Instance, city or municipal judge or other officer in accordance with law and the Rules of Court of the Philippines, no information for an offense cognizable by the Court of First Instance shall be filed by the provincial or city fiscal or any of his assistants, or by a state attorney or his assistants, without first giving the amused a chance to be heard in a preliminary investigation conducted by him by issuing a corresponding subpoena. ...

Sec. 2. The provisions of Section fifteen, Rule 112, of the New Rules of Court Of the Philippines, shall be observed in the investigations of persons in custody.

From the abovequoted Provisions, Republic Act No. 5180 likewise continues the procedure prescribed in the Revised Rules of court of 1964, Particularly Rule 112 thereof.

The aforequoted portion of Section 1 of Republic Act No. 5180 was not modified by the amendatory Presidential Decrees Nos. 77 and 911 issued respectively on December 6, 1972 and March 23, 1976.

More decisively, the 1935 as well as 1973 Constitution vests this essential power in all courts to first determineprobable cause before ordering the arrest of those charged with a criminal offense (Section 1[3], Art. III, 1935 Constitution; See. 3, Art. IV, 1973 Constitution). The determination of "Probable cause" is the sole object of preliminary examinations. Surely, congress could not have possibly intended to deny the Circuit Criminal Courts such constitutional prerogative, which is part of the basic constitutional right of an individual whose person cannot be legally seized without prior preliminary examination by a judge.

WE enunciated that the creation of the Circuit Criminal Courts is for the purpose of alleviating the burden of the regular Courts of first Instance and to accelarate the disposition of criminal cases pending to be filed therein(People vs. Gutierrez, etc., et al., 36 SCRA 172; Osmeña vs. Sec. of Justice, G.R. No. L-32033, Sept 30, 1971, 199) or to contribute to the speedy resolution of criminal cases and help curb the progress of criminality in the country (Paraguya vs. Tiro, 41 SCRA 13s). As opined by Mr. Justice Barredo in his concurring opinion in the Gutierrez case, supra, "... Circuit Criminal Courts are nothing but additional branches of the

regular Courts of First Instance in their respective districts ..." , which he reiterated in his concurring opinion in the Osmeña case, thus:

My principal reason for my vote in favor of the judgment in this case is that I cannot find any justification for allowing the Secretary of Justice to have any part at all in the distribution or assignment of cases among the different branches of any Court of First Instance, of which the corresponding Circuit Criminal Court is one. I took this view in my concurring opinion in the case of People v. Gutierrez, cited in the main opinion of Justice Villamor, and I cannot see why I must opine differentlynow. ... (41 SCRA 211).

If the main purposes then in creating Circuit Criminal Courts are to alleviate the burden of the regular Courts of First Instance and to accelerate the disposition of the cases therein as well as stem the tide of criminality, it is only logical that such authority vested in the judges of the Courts of First Instance is likewise conferred on Circuit Criminal Courts. Otherwise, the Courts of First Instance would still be carrying the burden of conducting preliminary. investigations in those cases where Circuit Criminal Courts have jurisdiction and consequently delaying the trial and disposition of criminal cases pending before such Courts of First Instance.

That Congress, in enacting Republic Act No. 5179 clearly intended, by Sections 3 and 6 thereof, to clothe the Circuit Criminal Court with all the powers vested in regular Courts of First Instance including the authority to conduct preliminary examinations and investigations, is confirmed by the Dangerous Drugs Act of 1972, otherwise known as Republic Act No. 6425, as amended by Presidential Decree No. 44, Section 39 of which confers on Circuit Criminal Courts, Courts of First Instance and Juvenile and Domestic Relations Courts concurrent original jurisdiction over all offenses punishable thereunder and expressly directs that the "preliminary investigation of cases filed under this Act shall be terminated within a period of thirty (30) days from the date-of their filing." Before the amendment, the law required only seven (7) days from the date of the commencement of the preliminary investigation. Section 39, as amended, reads:

Sec. 39. Jurisdiction. — The Court of First Instance, Circuit Criminal Court and Juvenile and Domestic Relations Court shall have concurrent original jurisdiction over all cases involving offenses punishable under this Act: Provided, that in cities or provinces where there are Juvenile and Domestic Relations Courts, the said courts shall take exclusive cognizance of cases where the offenders are under sixteen years of age.

The preliminary investigation of cases filed under this Act shall be terminated within a period of thirty (30) days from the date of their filing.

Where the preliminary investigation is conducted by a prosecuting officer and a prima facie case is established, the corresponding information shall be filed in court within twenty-

four (24) hours from the termination of the investigation. If the preliminary investigation is conducted by a judge and a prima facie case is found to exist, the corresponding information shall be filed by the proper prosecuting officer within forty-eight (48) hours from the date of receipt of the records of the case.

Trial of the cases under this section shall be finished by the court not later than ninety (90) days from the date of the filing of the information. Decision on said cases shall be rendered within a period of fifteen (15) days from the date of submission of the case.

It is patent that the aforequoted provision of Section 39 of Republic Act No. 6425 affirms the power of the Circuit Criminal Courts to conduct preliminary examination and investigation in all the cases falling under their jurisdiction and additionally fixes the period for preliminary investigation, the filing of the information and the rendition of decisions in all offenses penalized by the Dangerous Drugs Act of 1972.

Under the amendment, the Circuit Criminal Court no longer has exclusive, but still retains concurrent, jurisdiction with the Court of First Instance and Juvenile and Domestic Relations Courts under the Dangerous Drugs Act. Its authority to conduct preliminary examination and investigation granted under Section 6 of Republic Act No. 5179, remains intact and undiminished; because the amendatory decree expressly directs that "If the preliminary investigation is conducted by a judge and a prima facie case is found to exist, the corresponding information should be filed by the proper prosecuting officer ... " There is nothing in the amendatory decree from which it can be reasonably inferred that since the jurisdiction of the Circuit Criminal Court over violations of the Dangerous Drugs Act is no longer exclusive, Circuit Criminal Court Judges no longer possess the authority to conduct preliminary examination and investigation.

Recognizing the constitutional power of the courts, including the Courts of First Instance, to conduct preliminary examination, other special laws specifically vest such authority exclusively in the Court of First Instance in case of violation of the Revised Election Code (Sec. 187, 1947 Revised Election Code, as amended; Sec. 234, 1971 Rev. Election Code) and of the Anti-subversion Act when the penalty imposable for the offense is prision mayor to death (Sec. 16, Rep. Act No. 1700).

It is urged that the word "judge" in the above-quoted section of Presidential Decree No. 44 (and also in the. 1935 and 1973 Constitutions) contemplates not the Court of First Instance Judge nor the Circuit Criminal Court Judge but the municipal judge. As heretofore stated, it is an elementary precept in statutory construction that where the law does not distinguish, WE should not distinguish (Colgate Palmolive Philippines, Inc. vs. Gimenez, L-14787, Jan. 28, 1961, 1 SCRA 267). The Statute cannot give a restricted meaning to the generic term "judge", used in the constitutional guarantee against unreasonable searches and seizures.

Furthermore, in People versus Manantan (L-14129, July 31, 1962, 5 SCRA 684), a justice of the peace, accuse of violating Section 54 of the Revised Election Code, moved to dismiss the information on the ground that the law refers merely to a justice, judge, or fiscal and that being a justice of the peace, he is beyond the coverage of the said Code. The Supreme Court in denying such contention, held that there was no need of including justices of the peace in the enumeration in said section because the legislature had availed itself of the more generic term "judge". The term "judge", not modified by any word or phrase, is intended to comprehend all kinds of judges, including justices of the peace.

The cases of People versus Paderna (22 SCRA 273) and Paraguya versus Tiro (41 SCRA 137) involved not the power of the Circuit Criminal Court to conduct preliminary investigation, but its jurisdiction to try and decide certain They do not at all reveal an iota of any further restriction on the limited jurisdiction of the Circuit Criminal Court other than those delineated in existing laws.

Thus, in the Paderna case, supra, involving a violation of Section 174 of the Tax Code, Mr. Chief Justice Castro, then Associate Justice, speaking for the Supreme Court in ruling that the Circuit Criminal Court was without jurisdiction to take cognizance of the case, stated:

... [T]he charge is for unlawful possession of untaxed "blue seal cigarettes" of an appraised value of less than P500.00 ... and the penalty provided under Republic Act 4713 is a fine of not less than P50.00 nor more than P200.00 and imprisonment of not less than 5 nor more than 30 days because the value of the cigarettes does not exceed P500.00, this case falls within the original and exclusive jurisdiction of the city court. ...

... Section 1 of Republic Act 5179, which took effect on September 8, 1967, provides in part that circuit criminal courts shall have limited jurisdiction concurrent with the regular court of first instance, to try and decide the following criminal cases falling under the original and exclusive jurisdiction of the latter.

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The jurisdiction of the circuit criminal courts is thus dependent not only on the type of cases but also on the penalties provided for those cases. Inasmuch as the case at bar falls within the exclusive and original jurisdiction of the City Court, it cannot, even if it involves a violation of section 174 of the Tax Code, be taken cognizance of by circuit criminal courts, the jurisdiction of which is concurrent with that of courts of first instance where the latter's jurisdiction is original and exclusive.

The same ruling was substantially reiterated in the more recent Tiro case, supra, involving indirect bribery committed by a public officer. In passing upon the issue of the Circuit Criminal Court's limited jurisdiction, the Supreme Court, through Mr. Justice Jose B. L. Reyes, held:

... The law (R.A. 5179) confined the jurisdiction of the circuit criminal courts (which is even made concurrent with the courts of first instance) to crimes committed by public officers; ... only where they are falling within the original and exclusive jurisdiction of the court of first instance. In short, circuit criminal courts' jurisdiction was limited merely to cases involving crimes specifically enumerated in Section 1 of Republic Act 5179, for which the penalty prescribed by law is imprisonment for more than 3 year (or 6 years in proper cases), or fine of more than 3 years (or 6 years in proper cases), or fine of more than P3,00.00 (or P6,000.00 as the case may be), or both such fine and imprisonment (sec. 44[f] in relation to Sec. 87[c], Judiciary Act of 1948, as amended; Esperat vs. Avila, L-25922, June 30, 1967, 20 SCRA 596; Mangila vs. Lantin, L-24735, October 31, 1969, 30 SCRA 81; People vs. Tapayan , L-36885, November 28, 1969, 30 SCRA 529; Andico vs. Roan, L-26563, April 16, 1968, 23 SCRA 93).

Since indirect bribery is penalized under the Revised Penal Code with imprisonment for a period not exceeding six months, suspension and public censure (Art. 211, RPC), the case is clearly removed from the competence of the circuit criminal court to pass upon. It is not denied that the crime of indirect bribery is essentially one committed by public officers. Jurisdiction of the court, however, is determined not only by nature of the offense charged in the information, but also by the penalty imposable thereto. ... (emphasis supplied).

In these two cases, it was made clear that for the Circuit Criminal Court to acquire jurisdiction, the offense must not only be one of those enumerated under Section 1 of Republic Act No. 5179; it should also be within the original and exclusive jurisdiction of the regular Courts of First Instance. In the aforesaid cases, the Circuit Criminal Court was clearly without jurisdiction to hear and decide the offenses involved, by command of the specific provisions of its charter, the Judiciary Act and the Revised Penal code; and not by a directive of the Supreme Court, which merely applied in said cited cases the statutory prescriptions. The Supreme Court cannot legally define additional restrictions, which is the sole prerogative of the law-making authority.

The contrary view appears to entertain the mistaken notion that Section 13, Rule 112 of the Revised Rules of Court, being a rule of procedure, the same should be rendered inoperative by reason of the fact that the Supreme Court cannot, by promulgating a rule of procedure, arrogate jurisdiction unto itself or grant any to the lower courts.

It is of course basic that only the Constitution and the law can confer jurisdiction to hear and decide certain cases. But equally true is the fact that both the 1935 and 1973 Constitutions expressly delegated to the Supreme Court the rule-making authority — the power to promulgate rules of pleading, practice and procedure and to amend the existing laws thereon. The law or rule of preliminary investigation is undoubtedly a rule of procedure.

The 1935 Constitution states:

The Supreme court shall have the power to promulgate rules concerning pleading, practice, and procedure in all courts, and the admission to the practice of law. Said rules shall be inform for all courts of the same grade and shall not diminish, increase or modify, substantive rights. The existing laws on pleading, practice, and substantive rights. The existing laws on pleading, practice and procedure are hereby repealed as statutes, and are declared Rules of Courts, subject to the power of the Supreme court to alter and modify the same. The Congress shall have the power to repeal, alter or supplement the rules concerning pleading, practice, and procedure, and the admission to the practice of law in the Philippines (Sec. 13, Art. VIII, 1935 Constitution).

The 1973 Constitution similarly authorizes the Supreme Court to

Promulgate rules concerning pleading, practice, and procedure in all courts, the admission to the practice of law, and the integration of the Bar, which, however, may be repeated, altered, or supplemented by the National Assembly. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade. and shall not diminish, increase or modify substantive rights (Sec. 5[5], Art, X, 1973 Constitution).

Sections 13 and 14 of Rule 112 of the Revised Rules of Court merely implement Section 3 of Article Ill of the 1935 Constitution (now Section 3 of Article IV of the 1973 Constitution). Section 13 of Rule 112 of the Revised Rules of Court was not an innovation as it merely restated Section 13 of General Order No. 58, Section 37 of Act No. 1627, and Sections 2 and 4 of Rule 108 of the 1940 Rules of Court, in obedience to its rule-making authority under Section 13, Article VIII of the 1935 Constitution. Rule 112 does not modify substantive rights but continues the procedure already operative prior to the 1935 Constitution.

WE have ruled that Rule 108 of the 1940 Rules of Court, which is the predecessor of Rule 112 of the 1964 Revised Rules of Court, is an adjective or procedural rule (Bustos vs. Lucero, 81 Phil. 640).

While admitting that Court of First Instance were previously clothed with the power of preliminary investigation by virtue of Section 37 of Act 1627, nevertheless, it is argued that this same section was amended when the Judiciary Act of 1948 was enacted since under Section 99 of said Judiciary Act, "All laws and rules inconsistent with the provisions of this Act' were repealed. the inconsistency, it is claimed, lies in the fact that while the authority of municipal courts and city courts to conduct preliminary investigation was reiterated in said Judiciary Act, there was no mention therein whether Courts of First Instance Judges are still possessed of such authority.

If such repeal was intended, it is unconstitutional; because the Constitutions of 1935 and 1973 vest in the Judge the power to issue a warrant of arrest or search warrant after

conducting a preliminary investigation or examination. Congress could not divest the court of such authority as the Constitution does not permit it, for the constitutional guarantee on arrest or search warrant is not qualified by some such phrase as "unless otherwise provided by law." For a clearer appreciation, the Constitutional guarantee on arrest and search warrant reads:

(3) The rights of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, to be determined 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 (Art. III, 1935 Constitution, emphasis supplied).

Sec. 3. 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 not be violated,and no search warrant or warrant of arrest shall issue except upon probable cause to be determined by the judge, or such other responsible officer as may be authorized by law, after examination under oath or affirmation of the complaint and the witness he may produce, and particularly describing the place to be searched, and the persons or things to be seized (Art. IV, 1973 Constitution, emphasis supplied).

It is clear from the aforequoted provisions of the 1973 Constitution that until now only the judge can determine the existence of probable cause and can issue the warrant of arrest. No law or presidential decree has been enacted or promulgated vesting the same authority in a particular "responsible officer." Hence, the 1973 Constitution, which was ratified and took effect on January 17, 1973, should govern the last four cases, namely, Nos. L-36376, L-38688, L-39525 and L-40031, which arose after January 17, 1973.

But even under the 1935 Constitution, the term seizures or seized comprehends arrest. Thus, in Vivo versus Montesa (July 29, 1968, 24 SCRA 155), reiterating the doctrines in the cases of Qua Chee Gan, et al. vs. Deportation Board (L-20280, Sept. 30, 1963) and Morano vs. Vivo (L-22196, June 30, 1967, 20 SCRA 162), WE ruled unanimously through Mr. Justice J.B.L. Reyes:

Nevertheless, we are of the opinion that the issuance of warrants of arrest by the Commissioners of Immigration, solely for purposes of investigation and before a final order of deportation is issued, conflicts with paragraph 3, Section 1, of Article III (Bill of Rights) of our Constitution, providing:

3. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, to be determined 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. (Art. III, 1773 Constitution, emphasis supplied).

It will be noted that the power to determine probable cause for warrants of arrest is limited by the Philippine Constitution to judges exclusively, unlike in previous organic laws and the Federal Constitution of the United States that left undetermined which public officials could determine the existence of probable cause. And in Qua Chee Gan, et al. vs. Deportation Board, L-20280, promulgated on September 30, 1963, this Court pointed out that Executive Order No. 69, of July 29, 1947, issued by President Roxas, in prescribing the procedure for deportation of aliens, only required the filing of a bond by an alien under investigation, but did not authorize his arrest.

Discussing the implications of the provision of our Bill of Rights on the issuance of administrative warrants of arrest, this Court said in the same case:

xxx xxx xxx

Under the express terms of our Constitution it is, therefore, even doubtful whether the arrest of an individual may be ordered by any authority other than the judge if the purpose is merely to determine the existence of probable cause, leading to an administrative investigation. The Constitution does not distinguish between warrants in a criminal case and administrative warrants in administrative proceedings. And if one suspected of having committed a crime is entitled to a determination of the probable cause against him, by a judge, why should one suspected of a violation of an administrative nature deserve less guarantee? Of course it is different if the order of arrest is issued to carry out a final finding of a violation, either by an executive or legislative officer or agency duly authorized for the purpose, as then the warrant is not that mentioned in the Constitution which is issuable only on probable cause. Such, for example, would be a warrant of arrest to carry out a final order of deportation, or to effect compliance of an order of contempt.

The(n) contention of the Solicitor General that the arrest of a foreigner is necessary to carry into effect the power of deportation is valid only when, as already stated, there is already an order of deportation. To carry out the order of deportation, the president obviously has the power to order the arrest of the deportee. But, certainly, during the investigation, it is not indispensable that the alien be arrested. It is enough, as was true before the executive order of President Quirino, that a bond be required to insure the appearance of the alien during the investigation, as was authorized in the executive order of President Roxas.

Following the same trend of thought, this Court, in Morano vs. Vivo (L-22196, 30 June 1967, 20 SCRA, 562; Phil. 1967-B, page 741), distinguished between administrative arrest in the

execution of a final deportation order and arrest as preliminary to further administrative proceedings. The Court remarked in said case:

Section 1 (3), Article Ill of the Constitution, we perceive, does not require judicial intervention in the execution of a final order of deportation issued in accordance with law. The constitutional limitation contemplates an order of arrest in the exercise of judicial power as a step preliminary or incidental to prosecution or proceedings for a given offense or administrative action, not as a measure indispensable to carry out a valid decision by a competent official, such as a legal order of deportation issued Commissioner of Immigration, in circumstance of legislation (L-24576, pp. 161-1621).

The foregoing doctrine was last reiterate in Ang, et al. versus Galang, etc. (L-21426, Oct. 22, 1975).

Under the American Constitution, the aforesaid terms include not only arrest but also invitations for police interview or interrogation as well as stop-and-frisk measures. In the 1968 case of Terry versus Ohio, the United States Supreme Court enunciated:

... It is quite plain that the Fourth Amendment governs "seizures" of the person which do not eventuate in a trip to the station house and prosecution for crime — "arrests" in traditional terminology. It must be recognized that whenever a police officer accounts an individual and restrain his freedom to walk away, he has "seized" that person (392 U.S. 1, 16 88 S.C.T. 1868, 20 L.E.D. 2d 889; 903 [1968].)

That the aforesaid terms seizures and seized signify arrest was deliberately intended by the founding fathers of the 1935 Constitution, which words are likewise employed in the 1973 Constitution, Delegate Miguel Cuaderno categorically recounted:

An amendment affecting the issuance of an order of arrest and search warrant, to the effect that in each case the order must be supported by the testimony of the complainant and the witnesses he may produce, made before the judge, and also an amendment providing that prisoners charged with capital offenses shall be bailable before conviction unless the evidence of guilt is strong, were approved upon the initiative of Delegates Francisco. It was the prevailing opinion among many delegate that one courts had been rather easy in the issuance of order of arrest or search warrants,and charged with capital offenses (Cuaderno, the Framing of the Philippine Constitution, p. 65, Emphasis supplied).

Delegate Jose Aruego added:

During the debates on the draft, Delegate Francisco proposed an amendment being the insertion of the words, to be determined by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce. The Idea in the Francisco

amendment was not new in the Philippines; for it was provided for in the Code of Criminal Procedure of the Philippines. The signification of the Idea into a constitutional provision was zealously insisted upon, in order to make the principle more sacred to the judges and to prosecuting pointed out in the debates, causes by the issuance of search warrants, which were generally found afterwards to be false (Aruego, Framing of the Philippine Constitution, Vol. I, p.160).

The term "judge" employed in both Constitutions cannot be so limited to "municipal judge" as to exclude the judge of the Court of First Instance and Circuit Criminal Court (People vs. Manantan, 5 SCRA 684, 690-695). WE are not justified to create a distinction where the Constitution does not make any.

In general, "judge" is a term employed to designate a public officer selected to preside and to administer the law in a court of justice (Ark. — School Dist. No. 18 vs. Grubbs Special School Dist., 43 S.W. 2d 765, 766, 184 Ark. 863, 48 CJS 946).

According to intent or context, the term "judge" may include an assistant judge (N.H. — City Bank v. Young, 43 N.H. 457); a country or court justice (Mo. State v. O'Gorman, 75 Mo. 370); a justice of the peace (N.Y. People v. Mann 97 N.Y. 530, 49 Am. R.556).

The term "a judge", in Gen. St. C. 47, Art. 1 & 22, providing that "a judge" may cause any house or building to be searched for the protection of gambling tables, etc., is equivalent to "any judge" and comprehends an entire class, and cannot, without disturbing its meaning, be restricted in its applications to judges of county, city and police courts and therefore the judge of the Louisville Law and equity court has authority to issue a warrant for such a research (Com. v. Watzel, 2 S.W. 123, 125, 84 KY 537).

Admittedly, Section 99 of the Judiciary Act contains a repealing clause which provides: "All laws and rulesinconsistent with the provisions of this Act are hereby repealed." The question may now be asked: What is the nature of this repealing clause? It is certainly not an express repealing clause because it fails to Identify or designate the Act or Acts that are intended to be repealed (Sutherland, Statutory Construction, [1934], Vol. 1, p. 467). Rather, it is a clause which predicates the intended repeal upon the condition that a substantial and an irreconcilable conflict must be found in existing and prior Acts. Such being the case, the presumption against implied repeals and the rule against strict construction regarding implied repeals apply ex propio vigore, for repeals and amendments by implication are not favored (Jalandoni vs. Andaya, L-23894, Jan. 24, 1974, 55 SCRA 261, 265-6; Villegas vs. Subido, L-31711, Sept. 30, 1971, 41 SCRA 190; Quimseng vs. Lachica, 2 SCRA 182). Indeed, the legislature is presumed to know the existing laws; so that, if a repeal is intended, the proper step is to so express it with specificity (Continental Insurance Co. vs. Simpson, 8 F[2d] 439; Webb vs. Bailey, 151 Ore. 2188, 51 P[2d] 832; State vs. Jackson, 120 W. Va. 521, 199 S.E. 876). The failure to add a specific repealing clause indicates that the intent was not to repeal

any existing law (Crawford, Construction of Statute, 1940 ed., p. 631), unless an irreconcilable inconsistency and repugnancy exist between the terms of the new and of the old statutes (Iloilo Palay and Corn Planters Association, Inc. vs. Feliciano, 13 SCRA 377). Here, there is no such inconsistency.

To begin with, the two laws, although with a common objective, refer to different persons and different methods applicable under different circumstances. Thus, while Section 87 of the Judiciary Act provides that municipal judges and judges of city courts may also conduct preliminary investigation for arty offense alleged to have been committed within their respective municipalities and cities ... ; Section 37 of Act 1627 reads in part that such power of "every justice of the peace including the justice of Manila, ... shall not exclude the proper judge of the Court of First Instance ... from exercising such jurisdiction."

WE should not, and cannot, adopt the theory of implied repeal except upon a clear and unequivocal expression of the will of Congress, which is not manifest from the language of Section 99 of the Judiciary Act, apart from the fact that Congress by itself alone had no power to amend the Constitution.

The opposite view likewise denies that the jurisdiction of our courts to conduct preliminary investigation could be traced to the Constitution, adding that the Charter of Manila and other cities confer upon the respective fiscals of said cities the power to conduct preliminary investigations.

The organic acts prior to the 1935 Constitution did not prohibit the conferment of such a power to conduct preliminary examination or investigation on quasi-judicial officers like the city fiscals of chartered cities (see the instructions of President McKinley to First Philippine Commission, the Philippine Bill of 1902, Jones Law of 1916, and the Revised Administrative Code of 1917).

But the power thus granted to the Manila City Fiscals (and later to City Fiscals and City Attorneys of other chartered cities) to conduct preliminary investigations did not and does not include the authority to issue warrants of arrest and search warrants, which warrants the courts alone can issue then as now. The constitutional guarantee against unreasonable searches and seizures under the 1935 Constitution provides that only a judge can issue a search warrant or warrant of arrest after he has by himself personally determined the existence of probable cause upon his examination under oath of the complainant and his witnesses; although as ruled in one case, he may rely on the investigation conducted by the fiscal or prosecutor (Amarga vs. Abbas, 98 Phil. 739, 741-42).

It is patent that under the 1935 Constitution, only the "judge" is directed to conduct a preliminary examination for the issuance of the warrant of arrest by express constitutional conferment.

But the 1973 Constitution empowers the National Assembly to grant the power to issue search warrants or warrants of arrest after conducting the necessary preliminary examination to "other responsible officer." Until such a law is enacted by the National Assembly, only the judge can validly conduct a preliminary examination for the issuance of a warrant of arrest or search warrant.

Even when the fiscal or prosecutor conducts the preliminary investigation, only the judge can validly issue the warrant of arrest. This is confirmed by Section 6 of Rule 112 of the 1964 Revised Rules of Court, which directs the judge to issue the warrant of arrest when he is "satisfied from the preliminary. examination conducted by him or by the investigating officer (referring to the fiscal or the municipal mayor under Sec. 5) that the offense complained of has been committed and that there is reasonable ground to believe that the accused has committed it, ... ."

Thus, the power of the city prosecutors to conduct preliminary examination and investigation (minus the authority to issue warrants of arrest or search warrant) is purely statutory. On the other hand, the judge derives his authority not only from the Rules of Court, but also — and originally — from the fundamental law to which all other laws are subordinate. If an objection must be raised, it should be against the authority of the fiscal to exercise such power of preliminary investigation, which, as has been stated, is merely statutory. No less than the Constitution confers upon the judge the power to conduct such examination and investigation.

The case of Albano versus Alvarez (December 22, 1965, 15 SCRA 518) is authority for the proposition that Sec. 13 of Rule 112 of the 1964 Revised Rules of Court contains an innovation, which requires that, when the Court of First Instance itself conducts the preliminary investigation, it must not only conduct the preliminary examination proper but the preliminary investigation as well since Section 13 commands the Court of First Instance to conduct both the preliminary examination and investigation simultaneously (523-524). Said Albano case does not negate but recognizes the authority of the judge of the Court of First Instance to conduct such preliminary investigation.

It is true that this COURT held expressly and impliedly that under the charters of the cities of Manila, Bacolod and Cebu, the power to conduct preliminary investigation is exclusively lodged in the city prosecutor (Sayo vs. Chief of Police, 80 Phil. 859, 868-869, May 12, 1948; Espiritu vs. De la Rosa, 45 OG 196; Montelibano vs. Ferrer, 97 Phil. 228, June 23, 1955; and Balite vs. People, 18 SCRA 280, 285-286, Sept. 30, 1966). But the charters of the cities of Manila, Bacolod and Cebu do not contain any provision making such grant of power to city prosecutors exclusive of the courts (Kapunan, Criminal Procedure, 3rd Edition, 1960), which cannot be deprived of such authority to conduct preliminary examination because said prerogative of the courts emanates from the Constitution itself. Unless the Constitution is amended, the judge cannot be divested of such a power, which is an essential element of the cardinal right of an individual against unreasonable searches and seizures. If the present city

charters conferred on city fiscals or city prosecutors the power to issue warrants of arrest it would be an unconstitutional grant of power under the 1935 Constitution. As heretofore intimated, the present practice or rule of court authorizing the judge to issue warrants of arrest based on the preliminary investigation conducted by the city fiscal, seems to violate the 1935 Constitution, which requires the judge himself to conduct the preliminary examination. Neither the judge nor the law can delegate such an authority to another public officer without trenching upon this constitutional guarantee against unreasonable searches and seizures.

The theory that Courts of First Instance and Circuit Criminal Courts Judges cannot exercise the power of preliminary examination and investigation, and that as a necessary consequence, they cannot also issue warrants of arrest, obviously collides with the 1935 and 1973 Constitutions.

Moreover, the theory tolerates an unthinkable — because anomalous — situation wherein the Court of First Instance and the Circuit Criminal Court must wait for prosecutors and courts inferior to them to conduct the preliminary examination and/or to issue the needed warrants of arrest before they could effectively exercise their power to try and decide the cases falling under their respective jurisdiction. This situation would make the Courts of First Instance and Circuit Criminal Courts totally dependent upon state prosecutors and municipal courts, which are inferior to them, for their proper functioning. The possibility that the administration of criminal justice might stand still will not be very remote.

The two-fold purpose for which the Circuit Criminal Courts were created was to alleviate the burden of the regular Courts of First Instance and accelerate the disposition of criminal cases filed therein (Osmeña vs. Secretary of Justice, supra; People vs. Gutierrez, supra). Such being the admitted purpose, the power to conduct preliminary examination must necessarily attach to the duties of a Circuit Criminal Court Judge; for aside from being one of the instruments by which a case may be accelerated and disposed of, it is a duty which trully lies within the scope of the office, essential to the accomplishment of the main purpose for which the office was created (Sec. 3, Art III, 1935 Constitution; Sec 3, Art. IV, 1973 Constitution), even if regarded as incidental and collateral, is germane to and serves to promote the accomplishment of the principal purpose (Lo Cham vs. Ocampo, 77 Phil. 635).

WE RULE that both Section 1(3), Article III of the 1935 Constitution provide the source of the power of all Judges, including Judges of the Court of First Instance, the Circuit Criminal Courts, and other courts of equivalent rank, to conduct the examination to determine probable cause before the issuance of the warrant of arrest and therefore sustain the proceedings conducted by respondent Judge leading to the issuance of the warrants of arrest and his referral of the cases to the fiscal or other government prosecutor for the filing of the corresponding information.

II

It may be well to trace briefly the historical background of our law on criminal procedure.

During the Spanish regime, the rules of criminal procedure were found in the Provisional Law on Criminal Procedure which accompanied the Spanish Penal Code. The two laws were published in the Official Gazette in Manila on March 13 and 14, 1887 and became effective four (4) months thereafter(U.S. vs. Tamparong, 31 Phil. 32-33; Francisco, Criminal Procedure, 1969, ed., p. 8).

While the Provisional Law on Criminal Procedure provided or governadorcillo, it did not require any preliminary examination or investigation before trial. The sumario was abolished by General Order No. 58 (U.S. vs. Tamparong, supra; Navarro, Criminal Procedure, 1960 ed., pp. 171, 174; Revilla, Vol. 2. Philippine Penal Code and Procedure, 1930 ed., pp. 1134-35).

When the Philippine came under American sovereignty General Order No. 58 was promulgated by the U.S. Military Governor in the exercise of his legislative powers as commander-in-chief of the occupation army and took effect on April 13, 1900. General Order No. 58 was amended by Act No. 194 of August 10, 1901, the Philippine Bill of 1902, Act No. 590 of January 9, 1903, Act No. 1627 of July 1, 1907, the Jones Law of 1916, Section 2474 of the Revised Administrative Code of 1917, Act No. 3042 of March 10, 1922, and Act No. 4178 of December 5, 1934.

General Order No. 58 amended (Sec.1) the Criminal Code of Procedure enforced during the Spanish regime and vested in the magistrate "the authority to conduct preliminary investigation (Sec. 13) for the issuance of the warrant of arrest" and authorized "a judge or a justice of the peace" to issue a search warrant upon his determination of the existence of probable cause therefor "particularly describing the place to be searched and the person or thing to be seized" (Secs. 95 and 97). The term "magistrate" comprehended the court of First Instance (Temporosa vs. Yatco, 79 Phil. 225, 226 [1947]; Marcos vs. Cruz, 68 Phil. 96, 104-107 [1939]; People vs. Red, 55 Phil. 706, 710 [1931]; People vs. Solon, 47 Phil. 443 441 [1925]; Navarro Criminal Procedure, 960 ed., 1973; Padilla, Criminal Procedure, 1965 ed., p. 270).

A "magistrate" is an officer having power to issue a warrant for the arrest of a person charged with a public offense. People vs. Swain, 90 P. 720, 722 5 Cal. App. 421 citing Pen. Code, S807.

A "magistrate" is an officer having power to issue a warrant for the arrest of a person charged with the commission of a crime. The arrest of a person charge with the commission of a crime. The following persons are magistrates:

(1) the justices of the Supreme Court;

(2) the judges of the Circuit Court;

(3) the county judges and justices of the peace;

(4) all municipal officers authorized to exercise the power and perform the duties of a justice of the peace. Wallowa County v. Oakes, 78 P. 892, 46 Or. 33 (26 Words and Phrases, pp. 44, 45).

Act No. 194 of August 10, 1901 amended General Order No. 58 by empowering "every justice of the peace ... to make preliminary investigation of any crime allege to have been committed within his municipality, jurisdiction to hear and determine which is by law now vested in the judges of the Courts of First Instance" (emphasis supplied).

The obvious inference from the aforequoted provision of Act No. 194 is that before its passage, the justice of the peace had no power to conduct preliminary investigation of any offense triable by the Court of First Instance, which alone can conduct such preliminary investigation of a crime under its original jurisdiction pursuant to General Order No. 58. But its enactment did not divest the Court of First Instance of such authority.

In the 1939 case of Marcos, et al. versus Cruz, the Supreme Court, through Justice Imperial, sustained the power of the Court of First Instance to conduct preliminary investigations under Sections 13 and 14 of General Order No. 58 (68 Phil. 96, 106-107), which was impliedly followed in the 1947 case of Temporosa versus Yatco, et al., supra.

While General Order No. 58 vested the authority in a magistrate, a generic term which includes judges of the Courts of First Instance and justices of the peace; Section 1 of Act No. 194 is less categorical by employing the clause "jurisdiction to hear and determine which is by law now vested in the judges of the Courts of First Instance."

The Philippine Bill of 1902 in a similar ambiguous vein contained such authority when it merely provided that the "Supreme Court and the Courts of First Instance of the Philippine Islands shall possess and exercise jurisdiction as heretofore provided and such additional jurisdiction as shall hereafter be prescribed by the Government of said Islands, subject to the power of said Government to change the practice and method of procedure. The municipal courts of said Islands shall possess and exercise jurisdiction as heretofore provided by the Philippine Commission, subject in all matters to such alteration and amendment as maybe hereafter enacted by law; ... " (Sec. 9, emphasis supplied).

Act No. 590 of January 9, 1903 further amended Act No. 194 by extending the power to conduct preliminary investigation to the justice of the peace of the provincial capital or of the town wherein the provincial jail is situated of crimes committed anywhere within the province

but again utilized the equivocal clause "jurisdiction to hear and determine which is by law now vested in the Court's of First Instance; ... (Sec. 7, Act 590, emphasis supplied).

Act No. 1627 of July 1 1907 had the virtue of greater clarity when if authorized expressly every justice of the peace, including the justice of the peace of Manila, to "conduct preliminary investigation of all crimes and offenses alleged to have been comitted within his municipality and cognizable by Court of First Instance, but this shall not exclude the proper judge of the Court of First Instance of a municipal court from or of a municipality in which the provincial jail is located, when directed by an order from the judge of First Instance, shall have jurisdiction to conduct investigation at the expense of the municipality wherein the crime or offense was committed although alleged to have been committed anywhere within the province, to issue orders of arrest, ... (Sec. 37, Act No. 1627, emphasis supplied).

The Jones Law of 1916, like the Philippine Bill of 1902, merely provides "that the Supreme Court and the Courts of First Instance of the Philippine Islands shall possess and exercise jurisidiction as heretofore provided and such additional jurisdiction as shall hereafter be prescribed by law" (Sec. 26, Jones Law).

Section 2474 of the Revised Administrative Code of 1917 re-affirms the power of the Court of First Instance of Manila to conduct preliminary examination —

Sec. 2474. Persons arrested to be promptly brought before a court. — Preliminary examination in municipal court and Court of First Instance. — Every person arrested shall, without unnecessary delay, be brought before the municipal court, or the Court of First Instance for preliminary hearing,release on bail, or trial. In cases triable in the municipal court the defendant shall not be entitled as of right to a preliminary examination, except a summary one to enable the court to fix the bail, in any case where the prosecution announces itself and is ready for trial within three days, not including Sundays, after the request for an examination is presented. In cases triable only in the Court of First Instance the defendant shall not be entitled as of right to a preliminary examination in any case where the fiscal of the city, after a due investigating of the facts, shall have presented an information against him in proper form. But the Court of Firs Instance may make such summary investigation into the case as it may necessary to enable it to fix the bail or to determine whether the offense is bailable.(emphasis supplied).

It is clear that both the Manila Court of First Instance and municipal court can conduct a preliminary hearing or examination. Section 2474 aforequoted, adds, however, that the City Fiscal impliedly may conduct such preliminary examination; because it provides that in "cases triable only in the Court of First Instance the defendant shall not be entitled as of right to a preliminary examination in any case where the fiscal of the city, after a due investigation of the facts, shall have presented an information against him in proper form. It will be noted, however, that it is only after the City Fiscal has conducted a preliminary examination that the

accused ceases to "be entitled as of right" to a preliminary examination by the Judge of the Court of Firs Instance who, however, retains inferentially the discretion to conduct another preliminary investigation because the Court of First Instance Judge is not foreclosed by the preliminary examination conducted by the City Fiscal. But, when the City Fiscal has not conducted any preliminary examination, the Court of First Instance Judge himself certainly can proceed with such preliminary examination, which the defendant can demand as a matter of right.

Act No. 3042 of March 10, 1922, while amending Section 13 of General Order No. 58, re-states the power of the magistrate to conduct the preliminary examination for the issuance of the warrant of arrest.

Act No. 4178 of December 5, 1934 further amended Section 13 of General Order No. 58 but still retained the authority of the magistrate to conduct the preliminary examination. As herefofore stated, Sections 13 and 14 of General Order No. 58, as amended, were applied by the Supreme Court in Marcos, et al. versus Cruz (68 Phil. 96, 106-107).

Under the jurisprudence then or prior to the 1935 Constitution, the preliminary investigation before the justice of the peace or muncipal court consisted of two stages, namely, preliminary examination for the issuance of the warrant of arrest where only the complainant and his witnesses are heard by the justice of the peace; and the second stage where the accused and his witnesses are heard. The Judge of the Court of First Instance conducts only the first stage, that is, preliminary examination for purposes of the issuance of the warrant of arrest, to be followed by the actual trial (Marcos, vs. Cruz, supra; People vs. Moreno, 77 Phil. 548, 555 [1946]).

The basic source of the power of the Courts of First Instance to conduct preliminary examination or investigation from May 14, 1935 to January 17, 1973, is paragraph 3 of Section 1 of Article III of the 1935 Constitution, which guarantees "the right of the people to be secure in their persons ... against unreasonable ... seizures ... and no warrants shall issue but upon probable cause, to be determined by the judge after an examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing ... the persons ... to be seized." Construing the foregoing constitutional right against unreasonable searches and seizures, the Supreme Court, through then Chief Justice Ricardo Paras, pronounced that the determination of the existence of "probable cause must depend upon the judgment and discretion of the judge ... issuing the warrant. ... His conclusion as to whether "probable cause" existed or not is final and conclusive. If he is satisfied that "probable cause" exists from the facts stated in the complaint, made upon the investigation by the prosecuting attorney, then his conclusion is sufficient upon which to issue a warrant of arrest. He may, however, if he is not satisfied, call such witnesses as he may deem necessary before issuing the warrant. ... There is no law which prohibits him from reaching the conclusion that "probable cause" exists from the statement of the prosecuting

attorney alone, or any other person whose statement or affidavit is entitled to credit in the opinion of the judge ... The preliminary investigation conducted by the petitioner (Provincial Fiscal) under Republic Act No. 732 ... does not, as correctly contended by the respondent Judge, dispense with the latter's duty to exercise his judicial power of determining, before issuing the corresponding warrant of arrest, whether or not probable cause exists therefor. The Constitution vests such power in the respondent judge who, however, may rely on the facts stated in the prosecuting attorney" (Amarga vs. Abbas, March 28, 195l, 98 Phil. 739, 741-742).

While the power to conduct preliminary examination may be delegated by law to government prosecutors, only the judge can issue the warrant of arrest under the 1935 Constitution and prior thereto (Sayo, et al. vs. Chief of Police, et al. 80 Phil. 859; Lino vs. Fugoso, 77 Phil. 933; Hashim vs. Boncan, 71 Phil. 216).

The valid seizure of a person can only be executed through a lawful warrant of arrest. Arrest without a warrant can only be legally effected by a police officer or private individual a) when the person to be arrested has committed, is actually committing, or is about to commit an offense in his presence; b) when an offense has in fact been committed, and he has reasonable ground to believe that the person to be arrested has committed it; and c) when the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another (Sec. 6, Rule 113, 1964 Revised Rules of Court).

In all other cases, there must be a valid warrant of arrest. When the seizure of a person is made without a warrant of arrest or with a warrant of arrest which is not based on a determination by the judge of the existence of probable cause, the arrest becomes unreasonable and therefore unconstitutional.

Sections 2 and 4 of Rule 108 of the 1940 Rules of Court expressly confer on the municipal or city judge, the City Final and the Judge of the Court of First Instance the power to conduct preliminary examination or investigation.

On June 20, 1957, Republic Act No. 1700, otherwise known as the Anti-Subversion Law, was approved. The proviso of Section 5 thereof expressly provides that the preliminary investigation of offenses defined and penalized therein by prision mayor to death shall be conducted by the proper Court of First Instance. This grant obviously is exclusive of the provincial or city fiscal or other government prosecutors whose power to conduct preliminary investigation in all other cases is affirmed in the first clause of Section 5 thereof.

Sections 13 and 14 of the 196.4 Revised Rules of Court re-state Sections 2 and 4 of Rule 108 of the 1940 Rules of Court.

As aforestated, aside from the challenged Sections 3 and 6 of Republic Act No. 5179 creating the Circuit Criminal Courts, Republic Act 5180 was approved on September 8, 1967, which affirms the prerogative of the Courts of First Instance to conduct preliminary investigation of offenses punishable by said courts.

Presidential Decrees Nos. 77 and 911 promulgated respectively on December 6, 1972 and March 23, 1976. amending Republic Act No. 5180, did not modify the opening clause of Section 1 of said Republic Act 5180 affirming the power of the Court of First Instance to conduct preliminary investigation in accordance with law and the Rules of Court.

Section 234 of the 1971 Revised Election Code, otherwise known as Republic Act No. 6388, vests in the Court of First Instance "exclusive original jurisdiction to make preliminary investigations, issue warrants of arrest and try and decide any criminal case or proceeding for violation of" the Election Law. This provision was a reiteration of the previous election laws (Act No. 1582 of 1907; Com. Act No. 357 of 1938; and Republic Act No. 180 of 1947, as amended).

After the ratification of the 1973 Constitution on January 17, 1973, the source of the authority of the judge to conduct preliminary examination for purposes of issuing a warrant of arrest, is still the Constitution, this time the 1973 Constitution, which likewise guarantees "the right of the people to be secure in their persons ... against unreasonable ... seizures for whatever nature and for any purpose ... and no search warrant or warrant of arrestshall issue except upon probable cause to be determined by the judge, or such other responsible officer as may be authorized by law, after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing ... the persons ... to be seized" (Sec. 3 of Art. IV, 1973 Constitution). The 1973 Constitution, instead of employing the generic term warrants to comprehend both search warrants and warrants of arrest, as did the 1935 Constitution, expressly specifies "search warrants or warrants of arrest." The purpose of such specification was apparently to clarify the doubt raised by the dissenting opinion of Mr. Justice Montemayor in the Amarrga case, supra, that the 1935 Constitution merely guarantees against unreasonable searches but not against unreasonable arrests, despite the fact that the constitutional guarantee expressly affirms "the right of the people to be secure in their persons ... against unreasonable ... seizures ... and no warrant shall issue but upon probable cause, to be determined by the persons ... to be seized" (Par. 3, See. 1, Art. III, 1935 Constitution).

In passing, the dissent of Justice Montemayor in the Amarga case seems to deny equal, if not greater, importance to individual freedom from illegal arrest or arbitrary detention vis-a-vis property rights and right against self-incrimination. It will also likewise be noted that the 1973 Constitution also authorizes the law-making authority to empower other responsible officers to conduct such preliminary examination for purposes of the issuance of a warrant of arrest. As enunciated in the Amarga case and in U.S. versus Ocampo (18 Phil. 1, 41-42), the

government prosecutors may be authorized to conduct such preliminary examination and their determination of the existence of probable cause may be relied upon by the , 23 SCRA judge, who may, as a consequence, issue the warrant of arrest; although the judge himself is not precluded from conducting his own preliminary examination despite the conclusion of the prosecuting attorney as to the existence or non-existence of probable cause.

III

1. The challenged order of July 6, 1971 issued by the respondent Judge in G.R. No. L-34038 (Collector of Customs, etc. vs. Hon. Onofre Villaluz, et al.) dismissed the criminal complaint filed by petitioners therein against private respondent with prejudice, obviously meaning that the case may not be refiled without exposing the accused to double jeopardy. The respondent Judge seriously erred in so issuing said order, contravening as it does a basic legal principle on double jeopardy, and committing thereby a grave abuse of discretion. The constitutional right against double jeopardy exists, not after the first preliminary examination or investigation, but only after the first trial which results either in conviction or acquittal or in the dismissal or termination of the case without the express consent of the accused by a court of competent jurisdiction upon a valid complaint or information and after the accused had pleaded to the charge (Sec. 9, Rule 117, Revised Rules of Court; Taladua vs. Ochotorena, et al. L-25595, February 15, 1974; Republic vs. Agoncillo, L-27257, August 31, 1971, 40 SCRA 579; People vs. Obsania, L-24447, June 29, 1968, 23 SCRA 1249; People vs. Ylagan, 58 Phil. 851).

As correctly stated by the Solicitor General, petitioner's counsel, "dismissal at preliminary investigation is never with prejudice. Re-filing of the same is allowed if evidence has become sufficient to warrant conviction of private respondent." There has been no deviation from such established jurisprudence exemplified in People vs. Bagsican(6 SCRA 400), Wherein the Court held that "the finding in the preliminary investigation that no prima facie case existed against the accused does not bar subsequent prosecution and conviction. — Such finding is not final acquittal as would preclude further proceedings" (Emphasis supplied).

2. Aggravating his grave mistake and misapprehension of the law, respondent Judge also directed through the same order the return of the articles allegedly seized from the person of respondent Makapugay. This portion of the question order is fraught with undesirable consequences.

As stated heretofore, the dismissal of a case, even with prejudice, during the stage of preliminary investigation does not bar subsequent prosecution and conviction if the evidence warrants the re-filing of the same becomes next to impossible. For the enforcement of such order would virtually deprive herein petitioner Collector of Customs of the evidence indispensable to a successful prosecution of the case against the private respondent. Worse, the order nullified the power of seizure of the customs official.

Respondent Judge ignored the established principle that from the moment imported goods are actually in the possession or control of the Customs authorities, even if no warrant of seizure had previously been issued by the Collector of Customs in connection with seizure and forfeiture proceedings, the Bureau of Customs acquires exclusive jurisdiction over such imported goods for the purpose of enforcing the Customs laws, subject to an appeal only to the Court of Tax Appeals and to final review by the Supreme Court (Section 2205 and 2303, Tariff and Customs Code; Papa, et al. vs. Mago, et al., Feb. 28, 1968, 22 SCRA 857; Virata, et al. vs. Aquino, et al. Sept 30, 1973, 53 SCRA, 24; see also Vierneza vs. Commissioner, July 30, 1968, 24 SCRA 394; Farm Implement & Machinery vs. Commissioner, August 30, 1968, 24 SCRA 905; Lazatin vs. Commissioner, et al., July 30, 1969, SCRA 1016; Asaali, et al. vs. Commissioner, December 16, 1968, 26 SCRA 382; Sare Enterprises vs. Commissioner, Aug. 28, 1969, 29 SCRA 112; Geotina, etc. vs. Court of Tax Appeals, et al., August 30, 1971, 40 SCRA 362; Commissioner vs. Court of Tax Appeals, et al., January 31, 1972; Lopez vs. Commissioner, et al., January 30, 1971, 37 SCRA 327; Geotina vs. Broadway, etc., et al., January 30, 1971, 37, SCRA 410; Auyong Hian vs. Court of Tax Appeals, et al., September 12, 1974, 59 SCRA 110; and Pacis, et al., vs. Pamaran, etc., et al., March 15, 1974, 56 SCRA 16). Such exclusive jurisdiction precludes the Court of First Instance as well as the Circuit Criminal Court from assuming cognizance of the subject matter (Enrile, et al. vs. Venuya, et al., January 30, 1971, 37 SCRA 381) and divests such courts of the prerogative to replevin properties subject to seizure and forfeiture proceedings for violation of the Tariff and Customs Code (Diosamito, et al. vs. Balanque, et al., July 28, 1969, 28 SCRA 836; Señares vs. Frias, June 10, 1971, 39 SCRA 533); because proceedings for the forfeiture of goods illegally imported are not criminal in nature since they do not result in the conviction of wrongdoer nor in the imposition upon him of a penalty (Lazatin vs. Commissioner, et al., July 30, 1969, 28 SCRA 1016).

Respondent Judge claims that the pendency of a seizure proceeding was never brought to his attention (p. 038, rec.) and that he could not have foreseen the possibility that petitioner would be instituting seizure proceedings ... and besides, it is understood that the order of the court commanding the release of the subject articles was on a premise that herein petitioner was not holding or withholding the same for some other lawful reason (p.39, rec.).

The questioned order of respondent Judge is unqualified and contains no intimation that the "release ... was on a premise that herein petitioner was not holding or withholding the same for some other lawful reason." On the contrary, the tenor of the order is so absolute and so emphatic that it really leaves no alternative for petitioner Collector of Customs except to return the articles.

The records of the case, moreover, reveal that a report of seizure (p. 14, rec.) and warrant of seizure and detention(p. 15, rec.) were made by petitioner Collector of Customs on June 30, 1971 and on July 9, 1971 respectively. It is patent that respondent Judge knew actually of the

existence at least of the report of seizure of June 30, 1971, which is six days prior to his order of dismissal dated July 6, 1971. He should have anticipated that a warrant of seizure and detention will logically be issued as in fact it was issued on July 9, 1971, because it was the petitioner Collector of Customs who filed the criminal complaint directly with him on July 1, 1971. Respondent Judge chose to ignore the presence of the report of seizure dated June 30, 1971, six days before his order of dismissal and the filing of the criminal complaint on July 1, 1971. Prudence should have counselled him, so as not to frustrate the petitioner Collector of Customs in enforcing the tariff and customs laws, against ordering the release of the seized articles without first ascertaining from the petitioner Collector of Customs whether the latter intended to institute or had instituted seizure proceedings.

As aptly expressed by Mr. Justice Barredo in his Concurring Opinion in People vs. Gutierrez, supra, "It is not enough that a judge trusts himself or can be trusted as capable of acting in good faith, it is equally important that no circumstance attendant to the proceedings should mar that quality of trust worthiness." We have enjoined judges to apply the law as interpreted by the Supreme Court and not to dispose of a case according to their personal views (Albert vs. Court of First Instance, 23 SCRA 948).

IV

In G.R. No. L-36376 (Enriquez, et al. vs. Hon. Onofre Villaluz, et al.), the arbitrary denials displayed by respondent Judge of motions presented before him likewise invite some cautionary reminders from this Court.

In this case, petitioners were given an unreasonable period of one (1) day within which to elevate the matter before this Tribunal. But considering the novelty of the issue, a grant of twenty-four hours to prepare a petition for certiorari is a virtual denial of the motion. And petitioners' motion for an extension of at least one (1) day was peremptorily brushed aside by respondent Judge with one single word DENIED.

The fact that petitioners succeeded in bringing the matter before the Supreme Court within the constricted period of time granted them is beside the point. More important is the consideration by this Court of the dangers posed by respondent Judge's peremptory denial of a reasonable time.

Indeed, it is commendable to see judges hasten the disposition of cases pending before them. But more commendable would be for judges to contribute their share in maintaining the unswerving faith of litigants in the courts of justice. WE once again stress that "One important judicial norm is that a judge's official conduct should be free from appearance of impropriety" (Luque vs. Kayanan, 29 SCRA 165).

V

But while w sustain the power of the Circuit Criminal to conduct preliminary examination (p. 36), pursuant to OUR constitutional power of administrative supervision over all courts (Sec. 6, Art. X, 1973 Constitution) as a matter of policy, WE enjoin the respondent Judge and other Circuit Criminal Court Judges to concentrate on hearing and deciding criminal cases filed before their courts (see Mateo vs. Villaluz, 50 SCRA 18, 28-29, March 31, 1973). The primary purpose of the creation of the Circuit Criminal Courts in addition to the existing Courts of First Instance, as above intimated, is to mitigate the case load of the Courts of First Instance as well as to expedite the disposition of criminal cases involving serious offenses specified in Section I of Republic Act 5179, as amended. Circuit Criminal Judges therefore, should not encumber themselves with the preliminary examination and investigation of criminal complaints, which they should refer to the municipal judge or provincial or city fiscal, who in turn can utilize the assistance of the state prosecutor to conduct such preliminary examination and investigation. Or the Judge of the Circuit Criminal Court can directly request the Secretary of Justice to assign a state prosecutor for the same purpose (See. 3, Republic Act No. 5184).

Moreover, it seems that respondent Judge does not have adequate time to hear and dispose of the 34 criminal cases with detention prisoners pending in his sala, aside from the 479 pending cases of voluntary submission by drug addicts, as of January 31, 1975 (A.M. No. 230-CCC, Item 42, Agenda of March 13, 1975), as revealed by his letter dated February 26, 1975, wherein he requested the Supreme Court to renew the detail in his sala of Municipal Judge Hermenegildo C. Cruz of Mandaluyong, Rizal, to assist him. This significant fact should further dissuade him from actively conducting the preliminary investigation of criminal cases directly filed with him.

Furthermore, Judges of the Circuit Criminal Courts whose dockets permit, may be assigned by the Supreme Court for a period not exceeding 6 months, unless with their consent, to assist Judges of regular Courts of First Instance with clogged dockets (Sec. 5[3], Art. X, 1973 Constitution).

WHEREFORE, IN G.R. NOS. L-34243, 36376, 38688 AND 39525, THE PETITIONS ARE HEREBY DISMISSED AND THE WRITS OF PRELIMINARY INJUNCTION AND/OR RESTRAINING ORDERS ISSUED THEREIN ARE HEREBY LIFTED; IN G.R. No. L-40031, THE PETITION IS HEREBY DISMISSED; AND IN G.R. NO. L-34038, THE ORDER OF RESPONDENT JUDGE DATED JULY 6, 1971 IS HEREBY SET ASIDE AS NULL AND VOID INSOFAR AS THE SAME DISMISSED THE CRIMINAL CASE WITH PREJUDICE AND INSOFAR AS THE SAME DIRECTED THE RETURN TO PRIVATE RESPONDENT THEREIN OF THE ARTICLES SEIZED FROM HIM WHICH ARE NOW SUBJECT OF

SEIZURE PROCEEDINGS BEFORE THE CUSTOMS AUTHORITIES, AND THE WRIT OF PRELIMINARY INJUNCTION ISSUED THEREIN IS HEREBY MADE PERMANENT. NO COSTS.

Republic of the PhilippinesSUPREME COURTManila

G.R. No. 81567 July 9, 1990

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ROBERTO UMIL, ROLANDO DURAL and RENATO VILLANUEVA. MANOLITA O. UMIL, and NICANOR P. DURAL, FELICITAS V. SESE, petitioners, vs.FIDEL V. RAMOS, MAJ. GEN. RENATO DE VILLA, BRIG. GEN. RAMON MONTANO, BRIG. GEN. ALEXANDER AGUIRRE, respondents.

G.R. Nos. 84581-82 July 9, 1990

AMELIA ROQUE and WILFREDO BUENAOBRA, petitioners, vs.GEN. RENATO DE VILLA and GEN. RAMON MONTANO, respondents.

G.R. Nos. 84583-84 July 9, 1990

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ATTY. DOMINGO T. ANONUEVO and RAMON CASIPLE. DOMINGO T. ANONUEVO and RAMON CASIPLE, petitioners, vs.HON. FIDEL V. RAMOS, GEN. RENATO S. DE VILLA, COL. EVARISTO CARINO, LT. COL. REX D. PIAD, T/SGT. CONRADO DE TORRES, S/SGT. ARNOLD DURIAN, and Commanding Officer, PC-INP Detention Center, Camp Crame, Quezon City, respondents.

G.R. No. 83162 July 9, 1990

IN THE MATTER OF THE APPLICATION FOR HABEAS CORPUS OF VICKY A. OCAYA AND DANNY RIVERA. VIRGILIO A. OCAYA, petitioner, vs.BRIG. GEN. ALEXANDER AGUIRRE, COL. HERCULES CATALUNA, COL. NESTOR MARIANO, respondents.

G.R. No. 85727 July 9, 1990

IN THE MATTER OF APPLICATION FOR HABEAS CORPUS OF: DEOGRACIAS ESPIRITU, petitioner, vs.BRIG. GEN. ALFREDO S. LIM, COL. RICARDO REYES, respondents.

G.R. No. 86332 July 9, 1990

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF NARCISO B. NAZARENO. ALFREDO NAZARENO, petitioner, 

vs.THE STATION COMMANDER OF THE MUNTINGLUPA POLICE STATION, Muntinglupa, Metro Manila, P/SGT. JACINTO MEDINA, P/SGT. ELADIO TAGLE, P/SGT. LEVI SOLEDAD, and P/SGT. MAURO AROJADO,respondents.

Efren H. Mercado for petitioners in G.R. No. 81567.

Ricardo C. Valmonte for petitioners in G.R. Nos. 84581-82.

Ramon S. Esguerra, Barbara Anne C. Migallos and Agripino G. Morga for petitioners in G.R. Nos. 84583-84.

Efren H. Mercado for petitioner in G.R. No. 83162.

Banzuela, Flores, Miralles, Raneses, Sy, Taquio & Association for petitioner in G.R. No. 85727..

PER CURIAM:

The are eight (8) petitioners for habeas corpus filed before the Court, which have been consolidated because of the similarity of issues raised, praying for the issuance of the writ of habeas corpus, ordering the respective respondents to produce the bodies of the persons named therein and to explain why they should not be set at liberty without further delay.

In their respective Returns, the respondents uniformly assert that the privilege of the writ of habeas corpus is not available to the petitioners as they have been legally arrested and are detained by virtue of valid informations filed in court against them.

The petitioners counter that their detention is unlawful as their arrests were made without warrant and, that no preliminary investigation was first conducted, so that the informations filed against them are null and void.

The Court has carefully reviewed the contentions of the parties in their respective pleadings, and it finds that the persons detained have not been illegally arrested nor arbitrarily deprived of their constitutional right to liberty, and that the circumstances attending these cases do not warrant their release on habeas corpus.

The arrest of a person without a warrant of arrest or previous complaint is recognized in law. The occasions or instances when such an arrest may be effected are clearly spelled out in Section 5, Rule 113 of the Rules of Court, as amended, which provides:

Sec. 5. Arrest without warrant; when lawful. — A peace officer or a private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;

(b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

In cases falling under paragraphs (a) and (b) hereof, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail, and he shall be proceeded against in accordance with Rule 112, Section 7.

An arrest without a warrant of arrest, under Section 5 paragraphs (a) and (b) of Rule 113 of the Rules of Court, as amended, is justified when the person arrested is caught in flagranti delicto, viz., in the act of committing an offense; or when an offense has just been committed and the person making the arrest has personal knowledge of the facts indicating that the person arrested has committed it. The rationale behind lawful arrests, without warrant, was stated by this Court in the case of People vs. Kagui Malasugui 1 thus:

To hold that no criminal can, in any case, be arrested and searched for the evidence and tokens of his crime without a warrant, would be to leave society, to a large extent, at the mercy of the shrewdest, the most expert, and the most depraved of criminals, facilitating their escape in many instances.

The record of the instant cases would show that the persons in whose behalf these petitions for habeas corpushave been filed, had freshly committed or were actually committing an offense, when apprehended, so that their arrests without a warrant were clearly justified, and that they are, further, detained by virtue of valid informations filed against them in court.

A brief narration of the facts and events surrounding each of the eight (8) petitions is in order.

I

In G.R. No. 81567 (Umil vs. Ramos), the record shows that, on 1 February 1988, the Regional Intelligence Operations Unit of the Capital Command (RIOU-CAPCOM) received confidential information about a member of the NPA Sparrow Unit (liquidation squad) being treated for a gunshot wound at the St. Agnes Hospital in Roosevelt Avenue, Quezon City. Upon verification, it was found that the wounded person, who was listed in the hospital records as Ronnie Javelon, is actually Rolando Dural, a member of the NPA liquidation squad, responsible for the killing of two (2) CAPCOM soldiers the day before, or on 31 January 1988, in Macanining Street, Bagong Barrio, Caloocan City. In view of this verification,

Rolando Dural was transferred to the Regional Medical Services of the CAPCOM, for security reasons. While confined thereat, or on 4 February 1988, Rolando Dural was positively identified by eyewitnesses as the gunman who went on top of the hood of the CAPCOM mobile patrol car, and fired at the two (2) CAPCOM soldiers seated inside the car identified as T/Sgt. Carlos Pabon and CIC Renato Manligot.

As a consequence of this positive identification, Rolando Dural was referred to the Caloocan City Fiscal who conducted an inquest and thereafter filed with the Regional Trial Court of Caloocan City an information charging Rolando Dural alias Ronnie Javelon with the crime of "Double Murder with Assault Upon Agents of Persons in Authority." The case was docketed therein as Criminal Case No. C-30112 and no bail was recommended. On 15 February 1988, the information was amended to include, as defendant, Bernardo Itucal, Jr. who, at the filing of the original information, was still unidentified.

Meanwhile, on 6 February 1988, a petition for habeas corpus was filed with this Court on behalf of Roberto Umil,Rolando Dural, and Renato Villanueva. The Court issued the writ of habeas corpus on 9 February 1988 and the respondents filed a Return of the Writ on 12 February 1988. Thereafter, the parties were heard on 15 February 1988.

On 26 February 1988, however, Roberto Umil and Renato Villanueva posted bail before the Regional Trial Court of Pasay City where charges for violation of the Anti-Subversion Act had been filed against them, and they were accordingly released. The petition for habeas corpus, insofar as Umil and Villanueva are concerned, is now moot and academic and is accordingly dismissed, since the writ of habeas corpus does not lie in favor of an accused in a criminal case who has been released on bail. 2

As to Rolando Dural, it clearly appears that he was not arrested while in the act of shooting the two (2) CAPCOM soldiers aforementioned. Nor was he arrested just after the commission of the said offense for his arrest came a day after the said shooting incident. Seemingly, his arrest without warrant is unjustified.

However, Rolando Dural was arrested for being a member of the New Peoples Army (NPA), an outlawed subversive organization. Subversion being a continuing offense, the arrest of Rolando Dural without warrant is justified as it can be said that he was committing an offense when arrested. The crimes of rebellion, subversion, conspiracy or proposal to commit such crimes, and crimes or offenses committed in furtherance thereof or in connection therewith constitute direct assaults against the State and are in the nature of continuing crimes. As stated by the Court in an earlier case:

From the facts as above-narrated, the claim of the petitioners that they were initially arrested illegally is, therefore, without basis in law and in fact. The crimes of insurrection or rebellion, subversion, conspiracy or proposal to commit such crimes, and other crimes and offenses

committed in the furtherance, on the occasion thereof, or incident thereto, or in connection therewith under Presidential Proclamation No. 2045, are all in the nature of continuing offenses which set them apart from the common offenses, aside from their essentially involving a massive conspiracy of nationwide magnitude. Clearly then, the arrest of the herein detainees was well within the bounds of the law and existing jurisprudence in our jurisdiction.

2. The arrest of persons involved in the rebellion whether as its fighting armed elements, or for committing non-violent acts but in furtherance of the rebellion, is more an act of capturing them in the course of an armed conflict, to quell the rebellion, than for the purpose of immediately prosecuting them in court for a statutory offense. The arrest, therefore, need not follow the usual procedure in the prosecution of offenses which requires the determination by a judge of the existence of probable cause before the issuance of a judicial warrant of arrest and the granting of bail if the offense is bailable. Obviously, the absence of a judicial warrant is no legal impediment to arresting or capturing persons committing overt acts of violence against government forces, or any other milder acts but equally in pursuance of the rebellious movement. The arrest or capture is thus impelled by the exigencies of the situation that involves the very survival of society and its government and duly constituted authorities. If killing and other acts of violence against the rebels find justification in the exigencies of armed hostilities which is of the essence of waging a rebellion or insurrection, most assuredly so in case of invasion, merely seizing their persons and detaining them while any of these contingencies continues cannot be less justified. . . . 3

The record, moreover, shows that the criminal case filed against Rolando Dural and Bernardo Itucal, Jr. for "Double Murder, etc." was tried in the court below and at the conclusion thereof, or on 17 August 1988, Rolando Dural and Bernardo Itucal, Jr. were found guilty of the charge and sentenced accordingly. Rolando Dural is now serving the sentence imposed upon him by the trial court. Thus, the writ of habeas corpus is no longer available to him. For, as held in the early case of U.S. vs. Wilson: 4

In this case, whatever may be said about the manner of his arrest, the fact remains that the defendant was actually in court in the custody of the law on March 29, when a complaint sufficient in form and substance was read to him. To this he pleaded not guilty. The trial followed, in which, and in the judgment of guilty pronounced by the court, we find no error. Whether, if there were irregularities in bringing him personally before the court, he could have been released on a writ of habeas corpus or now has a civil action for damages against the person who arrested him we need not inquire. It is enough to say that such irregularities are not sufficient to set aside a valid judgment rendered upon a sufficient complaint and after a trial free from error.

II

In G.R. Nos. 84581-82 (Roque vs. De Villa), the arrest of Amelia Roque and Wilfredo Buenaobra, without warrant, is also justified. When apprehended at the house of Renato Constantino in Marikina Heights, Marikina, Metro Manila, Wilfredo Buenaobra admitted that he was an NPA courier and he had with him letters to Renato Constantino and other members of the rebel group. Amelia Roque, upon the other hand, was a member of the National United Front Commission, in charge of finance, and admitted ownership of subversive documents found in the house of her sister in Caloocan City. She was also in possession of ammunition and a fragmentation grenade for which she had no permit or authority to possess.

The record of these two (2) cases shows that on 27 June 1988, one Rogelio Ramos y Ibanes, a member of the NPA, who had surrendered to the military authorities, told military agents about the operations of the Communist Party of the Philippines (CPP) and the New Peoples Army (NPA) in Metro Manila. He identified some of his former comrades as "Ka Mong", a staff member of the Communications and Transportation Bureau; "Ka Nelia", a staff member in charge of finance; "Ka Miller", an NPA courier from Sorsogon and Lopez, Quezon; "Ka Ted", and "Ka Totoy". He also pointed to a certain house occupied by Renato Constantino located in the Villaluz Compound, Molave St., Marikina Heights, Marikina, Metro Manila, which is used as a safehouse of the National United Front Commission (NUFC) of the CPP-NPA.

In view of these revelations, the Constantino house was placed under military surveillance and on 12 August 1988, pursuant to a search warrant issued by Judge Eutropio Migrino of the Regional Trial Court of Pasig, a search of the house was conducted at about 5:00 o'clock in the afternoon, by a combined team of the Criminal Investigation Service, National Capital District (CIS-NCD) and the Constabulary Security Group (CSG). In the course of the search, the following articles were found and taken under proper receipt:

a) One (1) Colt M16A1 long rifle with defaced serial number;

b) One (1) Cal. .380 ACT/9mm Model PPK/8 SN: 260577 & 2605778;

c) Two (2) fragmentation hand grenades;

d) Fifty-six (56) live ammunition for Cal. 5.56 mm;

e) Five (5) live ammunition for Cal. .380;

f) One (1) ICOM VHF FM Radio Transciever SN: 14903

g) One (1) Regulated power supply 220V AC;

h) One (1) Antennae (adjustable);

i) One (1) Speaker with cord ALEXAR;

j) Voluminous Subversive documents.

When confronted, Renato Constatino could not produce any permit or authority to possess the firearms, ammunition, radio and other communications equipment. Hence, he was brought to the CIS Headquarters for investigation. When questioned, he refused to give a written statement, although he admitted that he was a staff member of the executive committee of the NUFC and a ranking member of the International Department of the Communist Party of the Philippines (CPP).

At about 8:00 o'clock in the evening of the same day (12 August 1988), Wilfredo Buenaobra arrived at the house of Renato Constantino in the Villaluz Compound. When accosted, he readily admitted to the military agents that he is a regular member of the CPP/NPA and that he went to the place to deliver letters to "Ka Mong", referring to Renato Constatino, and other members of the rebel group. On further questioning, he also admitted that he is known as "Ka Miller" and that he was from Barangay San Pedro, Lopez, Quezon. Among the items taken from him were the following:

(1) Handwritten letter addressed to "Ka Bing & Co. from A & Co." dated August 11, 1988;

(2) Handwritten letter addressed to "ROD from VIC (Schell datre)" dated August 11, 1988;

(3) Handwritten letter addressed to "Suzie" from "Vic", dated August 11, 1988.

Also found Buenaobra's possession was a piece of paper containing a written but jumbled telephone number of Florida M. Roque, sister of Amelia Roque alias "Ka Nelia", at 69 Geronimo St., Caloocan City. Acting on the lead provided as to the whereabouts of Amelia Roque, the military agents went to the given address the next day (13 August 1988). They arrived at the place at about 11:00 o'clock in the morning. After identifying themselves as military agents and after seeking permission to search the place, which was granted, the military agents conducted a search in the presence of the occupants of the house and the barangay captain of the place, one Jesus D. Olba.

The military agents found the place to be another safehouse of the NUFC/CPP. They found ledgers, journals, vouchers, bank deposit books, folders, computer diskettes, and subversive documents as well as live ammunition for a .38 SPL Winchester, 11 rounds of live ammunition for a cal. .45, 19 rounds of live ammunition for an M16 Rifle, and a fragmentation grenade. As a result, Amelia Roque and the other occupants of the house were brought to the PC-CIS Headquarters at Camp Crame, Quezon City, for investigation. Amelia Roque admitted to the investigators that the voluminous documents belonged to her and that

the other occupants of the house had no knowledge of them. As a result, the said other occupants of the house were released from custody.

On 15 August 1988, Amelia Roque was brought to the Caloocan City Fiscal for inquest after which an information charging her with violation of PD 1866 was filed with the Regional Trial Court of Caloocan City. The case is docketed therein as Criminal Case No. C-1196. Another information for violation of the Anti-Subversion Act was filed against Amelia Roque before the Metropolitan Trial Court of Caloocan City, which is docketed therein as Criminal Case No. C-150458.

An information for violation of the Anti-Subversion Act was filed against Wilfredo Buenaobra before the Metropolitan Trial Court of Marikina, Metro Manila. The case is docketed therein as Criminal Case No. 23715. Bail was set at P4,000.00.

On 24 August 1988, a petition for habeas corpus was filed before this Court on behalf of Amelia Roque and Wilfredo Buenaobra. At the hearing of the case, however, Wilfredo Buenaobra manifested his desire to stay in the PC-INP Stockade at Camp Crame, Quezon City. According, the petition for habeas corpus filed on his behalf is now moot and academic. Only the petition of Amelia Roque remains for resolution.

The contention of respondents that petitioners Roque and Buenaobra are officers and/or members of the National United Front Commission (NUFC) of the CPP was not controverted or traversed by said petitioners. The contention must be deemed admitted. 5 As officers and/or members of the NUFC-CPP, their arrest, without warrant, was justified for the same reasons earlier stated vis-a-vis Rolando Dural. The arrest without warrant of Roque was additionally justified as she was, at the time of apprehension, in possession of ammunitions without license to possess them.

III

In G.R. Nos. 84583-84 (Anonuevo vs. Ramos), the arrest of Domingo Anonuevo and Ramon Casiple, without warrant, is also justified under the rules. Both are admittedly members of the standing committee of the NUFC and, when apprehended in the house of Renato Constatino, they had a bag containing subversive materials, and both carried firearms and ammunition for which they had no license to possess or carry.

The record of these two (2) cases shows that at about 7:30 o'clock in the evening of 13 August 1988, Domingo T. Anonuevo and Ramon Casiple arrived at the house of Renato Constatino at Marikina Heights, Marikina, which was still under surveillance by military agents. The military agents noticed bulging objects on their waist lines. When frisked, the agents found them to be loaded guns. Anonuevo and Casiple were asked to show their permit or license to possess or carry firearms and ammunition, but they could not produce

any. Hence, they were brought to PC Headquarters for investigation. Found in their possession were the following articles:

a) Voluminous subversive documents

b) One (1) Cal. 7.65 MOD 83 2C Pistol SN: 001412 with one (1) magazine for Cal. 7.65 containing ten (10) live ammunition of same caliber;

c) One (1) Cal. 7.65 Pietro Barreta SN; A18868 last digit tampered with one (1) magazine containing five (5) live ammunition of same caliber.

At the PC Stockade, Domingo Anonuevo was identified as "Ka Ted", and Ramon Casiple as "Ka Totoy" of the CPP, by their comrades who had previously surrendered to the military.

On 15 August 1988, the record of the investigation and other documentary evidence were forwarded to the Provincial Fiscal at Pasig, Metro Manila, who conducted an inquest, after which Domingo Anonuevo and Ramon Casiple were charged with violation of Presidential Decree No. 1866 before the Regional Trial Court of Pasig, Metro Manila. The cases are docketed therein as Criminal Cases Nos. 74386 ad 74387, respectively. No bail was recommended.

On 24 August 1988, a petition for habeas corpus was filed with this Court on behalf of Domingo Anonuevo and Ramon Casiple, alleging that the said Anonuevo and Casiple were unlawfully arrested without a warrant and that the informations filed against them are null and void for having been filed without prior hearing and preliminary investigation. On 30 August 1988, the Court issued the writ of habeas corpus, and after the respondents had filed a Return of the Writ, the parties were heard.

The petitioners' (Anonuevo and Casiple) claim that they were unlawfully arrested because there was no previous warrant of arrest, is without merit The record shows that Domingo Anonuevo and Ramon Casiple were carrying unlicensed firearms and ammunition in their person when they were apprehended.

There is also no merit in the contention that the informations filed against them are null and void for want of a preliminary investigation. The filing of an information, without a preliminary investigation having been first conducted, is sanctioned by the Rules. Sec. 7, Rule 112 of the Rules of Court, as amended, reads:

Sec. 7. When accused lawfully arrested without a warrant. — When a person is lawfully arrested without a warrant for an offense cognizable by the Regional Trial Court the complaint or information may be filed by the offended party, peace officer or fiscal without a preliminary investigation having been first conducted, on the basis of the affidavit of the offended party or arresting officer or person.

However, before the filing of such complaint or information, the person arrested may ask for a preliminary investigation by a proper officer in accordance with this Rule, but he must sign a waiver of the provisions of Article 125 of the Revised Penal Code, as amended, with the assistance of a lawyer and in case of non-availability of a lawyer, a responsible person of his choice. Notwithstanding such waiver, he may apply for bail as provided in the corresponding rule and the investigation must be terminated within fifteen (15) days from its inception.

If the case has been filed in court without a preliminary investigation having been first conducted, the accused may within five (5) days from the time he learns of the filing of the information, ask for a preliminary investigation with the same right to adduced evidence in his favor in the manner prescribed in this Rule.

The petitioners Domingo Anonuevo and Ramon Casiple, however, refused to sign a waiver of the provisions of Article 125 of the Revised Penal Code, as amended. In the informations filed against them, the prosecutor made identical certifications, as follows:

This is to certify that the accused has been charged in accordance with Sec. 7, Rule 112 of the 1985 Rules on Criminal Procedure, that no preliminary investigation was conducted because the accused has not made and signed a waiver of the provisions of Art. 125 of the Revised Penal Code, as amended; that based on the evidence presented, there is reasonable ground to believe that the crime has been committed, and that the accused is probably guilty thereof.

Nor did petitioners ask for a preliminary investigation after the informations had been filed against them in court. Petitioners cannot now claim that they have been deprived of their constitutional right to due process.

IV

In G.R. No. 83162 (Ocaya vs. Aguirre), the arrest without warrant, of Vicky Ocaya is justified under the Rules, since she had with her unlicensed ammunition when she was arrested. The record of this case shows that on 12 May 1988, agents of the PC Intelligence and Investigation of the Rizal PC-INP Command, armed with a search warrant issued by Judge Eutropio Migrino of the Regional Trial Court of Pasig, Metro Manila, conducted a search of a house located at Block 19, Phase II, Marikina Green Heights, Marikina, Metro Manila, believed to be occupied by Benito Tiamson, head of the CPP-NPA. In the course of the search, Vicky Ocaya arrived in a car driven by Danny Rivera. Subversive documents and several rounds of ammunition for a .45 cal. pistol were found in the car of Vicky Ocaya. As a result, Vicky Ocaya and Danny Rivera were brought to the PC Headquarters for investigation. When Vicky Ocaya could not produce any permit or authorization to possess the ammunition, an information charging her with violation of PD 1866 was filed with the Regional Trial Court

of Pasig, Metro Manila. The case is docketed therein as Criminal Case No. 73447. Danny Rivera, on the other hand, was released from custody.

On 17 May 1988, a petition for habeas corpus was filed, with this Court on behalf of Vicky Ocaya and Danny Rivera. It was alleged therein that Vicky Ocaya was illegally arrested and detained, and denied the right to a preliminary investigation.

It would appear, however, that Vicky Ocaya was arrested in flagranti delicto so that her arrest without a warrant is justified. No preliminary investigation was conducted because she was arrested without a warrant and she refused to waive the provisions of Article 125 of the Revised Penal Code, pursuant to Sec. 7, Rule 112 of the Rule of Court, as amended.

V

The petitioners Vicky Ocaya, Domingo Anonuevo, Ramon Casiple, and Amelia Roque claim that the firearms, ammunition and subversive documents alleged to have been found in their possession when they were arrested, did not belong to them, but were "planted" by the military agents to justify their illegal arrest.

The petitioners, however, have not introduced any evidence to support their aforesaid claim. On the other hand, no evil motive or ill-will on the part of the arresting officers that would cause the said arresting officers in these cases to accuse the petitioners falsely, has been shown. Besides, the arresting officers in these cases do not appear to be seekers of glory and bounty hunters for, as counsel for the petitioners Anonuevo and Casiple say, "there is absolutely nothing in the evidence submitted during the inquest that petitioners are on the 'AFP Order of Battle with a reward of P150,000.00 each on their heads.'" 6 On the other hand, as pointed out by the Solicitor General, the arrest of the petitioners is not a product of a witch hunt or a fishing expedition, but the result of an in-depth surveillance of NPA safehouses pointed to by no less than former comrades of the petitioners in the rebel movement.

The Solicitor General, in his Consolidated Memorandum, aptly observes:

. . . . To reiterate, the focal point in the case of petitioners Roque, Buenaobra, Anonuevo and Casiple, was the lawful search and seizure conducted by the military at the residence of Renato Constantino at Villaluz Compound, Molave St., Marikina Heights, Marikina, Metro Manila. The raid at Constantino's residence, was not a witch hunting or fishing expedition on the part of the military. It was a result of an in-depth military surveillance coupled with the leads provided by former members of the underground subversive organizations. That raid produced positive results. to date, nobody has disputed the fact that the residence of Constantino when raided yielded communication equipment, firearms and ammunitions, as well as subversive documents.

The military agents working on the information provided by Constantino that other members of his group were coming to his place, reasonably conducted a "stake-out" operation whereby some members of the raiding team were left behind the place. True enough, barely two hours after the raid and Constantino's arrest, petitioner Buenaobra arrived at Constantino's residence. He acted suspiciously and when frisked and searched by the military authorities, found in his person were letters. They are no ordinary letters, as even a cursory reading would show. Not only that, Buenaobra admitted that he is a NPA courier and was there to deliver the letters to Constantino.

Subsequently, less than twenty four hours after the arrest of Constantino and Buenaobra, petitioners Anonuevo and Casiple arrived at Constantino's place. Would it be unreasonable for the military agents to believe that petitioners Anonuevo and Casiple are among those expected to visit Constantino's residence considering that Constatino's information was true, in that Buenaobra did come to that place? Was it unreasonable under the circumstances, on the part of the military agents, not to frisk and search anyone who should visit the residence of Constantino, such as petitioners Anonuevo and Casiple? Must this Honorable Court yield to Anonuevo and Casiple's flimsy and bare assertion that they went to visit Constantino, who was to leave for Saudi Arabia on the day they were arrested thereat?

As to petitioner Roque, was it unreasonable for the military authorities to effect her arrest without warrant considering that it was Buenaobra who provided the leads on her identity? It cannot be denied that Buenaobra had connection with Roque. Because the former has the phone number of the latter. Why the necessity of jumbling Roque's telephone number as written on a piece of paper taken from Buenaobra's possession? Petitioners Roque and Buenaobra have not offered any plausible reason so far.

In all the above incidents, respondents maintain that they acted reasonably, under the time, place and circumstances of the events in question, especially considering that at the time of petitioner's arrest, incriminatory evidence, i.e, firearms, ammunitions and/or subversive documents were found in their possession.

Petitioners, when arrested, were neither taking their snacks nor innocently visiting a camp, but were arrested in such time, place and circumstances, from which one can reasonably conclude tat they were up to a sinister plot, involving utmost secrecy and comprehensive conspiracy.

IV

In. G.R. No. 85727 (Espiritu vs. Lim), the release on habeas corpus of the petitioner Deogracias Espiritu, who is detained by virtue of an Information for Violation of Article 142 of the Revised Penal Code (Inciting to Sedition) filed with the Regional Trial Court of Manila, is similarly not warranted.

The record of the case shows that the said petitioner is the General Secretary of the Pinagkaisahang Samahan ng Tsuper at Operators Nationwide (PISTON), an association of drivers and operators of public service vehicles in the Philippines, organized for their mutual aid and protection.

Petitioner claims that at about 5:00 o'clock in the morning of 23 November 1988, while he was sleeping in his home located at 363 Valencia St., Sta. Mesa, Manila, he was awakened by his sister Maria Paz Lalic who told him that a group of persons wanted to hire his jeepney. When he went down to talk to them, he was immediately put under arrest. When he asked for the warrant of arrest, the men, headed by Col. Ricardo Reyes, bodily lifted him and placed him in their owner-type jeepney. He demanded that his sister, Maria Paz Lalic, be allowed to accompany him, but the men did not accede to his request and hurriedly sped away.

He was brought to Police Station No. 8 of the Western Police District at Blumentritt, Manila where he was interrogated and detained. Then, at about 9:00 o'clock of the same morning, he was brought before the respondent Lim and, there and then, the said respondent ordered his arrest and detention. He was thereafter brought to the General Assignment Section, Investigation Division of the Western Police District under Police Capt. Cresenciano A. Cabasal where he was detained, restrained and deprived of his liberty. 7

The respondents claim however, that the detention of the petitioner is justified in view of the Information filed against him before the Regional Trial Court of Manila, docketed therein as Criminal Case No. 88-683-85, charging him with violation of Art. 142 of the Revised Penal Code (Inciting to Sedition).

The respondents also claim that the petitioner was lawfully arrested without a judicial warrant of arrest since petitioner when arrested had in fact just committed an offense in that in the afternoon of 22 November 1988, during a press conference at the National Press Club.

Deogracias Espiritu through tri-media was heard urging all drivers and operators to go on nationwide strike on November 23, 1988, to force the government to give into their demands to lower the prices of spare parts, commodities, water and the immediate release from detention of the president of the PISTON (Pinag-isang Samahan ng Tsuper Operators Nationwide). Further, we heard Deogracias Espiritu taking the place of PISTON president Medardo Roda and also announced the formation of the Alliance Drivers Association to go on nationwide strike on November 23, 1988. 8

Policemen waited for petitioner outside the National Pres Club in order to investigate him, but he gave the lawmen the slip. 9 He was next seen at about 5:00 o'clock that afternoon at a gathering of drivers and symphatizers at the corner of Magsaysay Blvd. and Valencia Street, Sta. Mesa, Manila where he was heard to say:

Bukas tuloy ang welga natin, sumagot na ang Cebu at Bicol na kasali sila, at hindi tayo titigil hanggang hindi binibigay ng gobyerno ni Cory ang gusto nating pagbaba ng halaga ng spare parts, bilihin at and pagpapalaya sa ating pinuno na si Ka Roda hanggang sa magkagulo na. 10 (emphasis supplied)

The police finally caught up with the petitioner on 23 November 1988. He was invited for questioning and brought to police headquarters after which an Information for violation of Art. 142 of the Revised Penal Code was filed against him before the Regional Trial Court of Manila. 11

Since the arrest of the petitioner without a warrant was in accordance with the provisions of Rule 113, Sec. 5(b) of the Rules of Court and that the petitioner is detained by virtue of a valid information filed with the competent court, he may not be released on habeas corpus. He may, however be released upon posting bail as recommended. However, we find the amount of the recommended bail (P60,000.00) excessive and we reduce it to P10,000.00 only.

VII

In G.R. No. 86332 (Nazareno vs. Station Commander), we also find no merit in the submission of Narciso Nazarenothat he was illegally arrested and is unlawfully detained. The record of this case shows that at about 8:30 o'clock in the morning of 14 December 1988, one Romulo Bunye II was killed by a group of men near the corner of T. Molina and Mendiola Streets in Alabang, Muntinglupa, Metro Manila. One of the suspects in the killing was Ramil Regal who was arrested by the police on 28 December 1988. Upon questioning, Regal pointed to Narciso Nazareno as on of his companions in the killing of the said Romulo Bunye II. In view thereof, the police officers, without warrant, picked up Narciso Nazareno and brought him to the police headquarters for questioning. Obviously, the evidence of petitioner's guilt is strong because on 3 January 1989, an information charging Narciso Nazareno, Ramil Regala, and two (2) others, with the killing of Romulo Bunye II was filed with the Regional Trial Court of Makati, Metro Manila. The case is docketed therein as Criminal Case No. 731.

On 7 January 1989, Narciso Nazareno filed a motion to post bail, but the motion was denied by the trial court in an order dated 10 January 1989, even as the motion to post bail, earlier filed by his co-accused, Manuel Laureaga, was granted by the same trial court.

On 13 January 1989, a petition for habeas corpus was filed with this Court on behalf of Narciso Nazareno and on 13 January 1989, the Court issued the writ of habeas corpus, returnable to the Presiding Judge of the Regional Trial Court of Biñan, Laguna, Branch 24, ordering said court to hear the case on 30 January 1989 and thereafter resolve the petition.

At the conclusion of the hearing, or on 1 February 1989, the Presiding Judge of the Regional Trial Court of Biñan, Laguna issued a resolution denying the petition for habeas corpus, it appearing that the said Narciso Nazareno is in the custody of the respondents by reason of an information filed against him with the Regional Trial Court of Makati, Metro Manila which had taken cognizance of said case and had, in fact, denied the motion for bail filed by said Narciso Nazareno (presumably because of the strength of the evidence against him).

The findings of the Presiding Judge of the Regional Trial Court of Biñan, Laguna are based upon the facts and the law. Consequently, we will not disturb the same. Evidently, the arrest of Nazareno was effected by the police without warrant pursuant to Sec. 5(b), Rule 113, Rules of Court after he was positively implicated by his co-accused Ramil Regala in the killing of Romulo BunyeII; and after investigation by the police authorities. As held in People vs. Ancheta: 12

The obligation of an agent of authority to make an arrest by reason of a crime, does not presuppose as a necessary requisite for the fulfillment thereof, the indubitable existence of a crime. For the detention to be perfectly legal, it is sufficient that the agent or person in authority making the arrest has reasonably sufficient grounds to believe the existence of an act having the characteristics of a crime and that the same grounds exist to believe that the person sought to be detained participated therein.

VIII

It is to be noted that, in all the petitions here considered, criminal charges have been filed in the proper courts against the petitioners. The rule is, that if a person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court judge, and that the court or judge had jurisdiction to issue the process or make the order, of if such person is charged before any court, the writ of habeas corpus will not be allowed. Section 4, Rule 102, Rules of Court, as amended is quite explicit in providing that:

Sec. 4. When writ is allowed or discharge authorized. — If it appears that the person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or judge or by virtue of a judgment or order of a court of record, and that the court or judge had jurisdiction to issue the process, render the judgment, or make the order, the writ shall not be allowed; or if the jurisdiction appears after the writ is allowed, the person shall not be discharged by reason of any informality or defect in the process, judgment, or order. Nor shall anything in this rule be held to authorize the discharge of a person charged with a convicted of an offense in the Philippines or of a person suffering imprisonment under lawful judgment. (emphasis supplied)

At this point, we refer to petitioner's plea for the Court of re-examine and, thereafter, abandon its pronouncement inIlagan vs. Enrile, 13 that a writ of habeas corpus is no longer available

after an information is filed against the person detained and a warrant of arrest or an order of commitment, is issued by the court where said information has been filed. 14 The petitioners claim that the said ruling, which was handed down during the past dictatorial regime to enforce and strengthen said regime, has no place under the present democratic dispensation and collides with the basic, fundamental, and constitutional rights of the people. Petitioners point out that the said doctrine makes possible the arrest and detention of innocent persons despite lack of evidence against them, and, most often, it is only after a petition for habeas corpus is filed before the court that the military authorities file the criminal information in the courts of law to be able to hide behind the protective mantle of the said doctrine. This, petitioners assert, stands as an obstacle to the freedom and liberty of the people and permits lawless and arbitrary State action.

We find, however, no compelling reason to abandon the said doctrine. It is based upon express provision of the Rules of Court and the exigencies served by the law. The fears expressed by the petitioners are not really unremediable. As the Court sees it, re-examination or reappraisal, with a view to its abandonment, of the Ilagan case doctrine is not the answer. The answer and the better practice would be, not to limit the function of the habeas corpus to a mere inquiry as to whether or not the court which issued the process, judgment or order of commitment or before whom the detained person is charged, had jurisdiction or not to issue the process, judgment or order or to take cognizance of the case, but rather, as the Court itself states in Morales, Jr. vs. Enrile, 15 "in all petitions forhabeas corpus the court must inquire into every phase and aspect of petitioner's detention-from the moment petitionwas taken into custody up to the moment the court passes upon the merits of the petition;" and "only after such a scrutiny can the court satisfy itself that the due process clause of our Constitution has in fact been satisfied." This is exactly what the Court has done in the petitions at bar. This is what should henceforth be done in all future cases of habeas corpus. In Short, all cases involving deprivation of individual liberty should be promptly brought to the courts for their immediate scrutiny and disposition.

WHEREFORE, the petitions are hereby DISMISSED, except that in G.R. No. 85727 (Espiritu vs. Lim), the bail bond for petitioner's provisional liberty is hereby ordered reduced from P60,000.00 to P10,000.00. No costs.SO ORDERED.

SAMMY MALACAT y MANDAR, petitioner, vs. COURT OF APPEALS, and PEOPLE OF THE PHILIPPINES, respondents.

D E C I S I O N

DAVIDE, JR., J.:

In an Information[1] filed on 30 August 1990, in Criminal Case No. 90-86748 before the Regional Trial Court (RTC) of Manila, Branch 5, petitioner Sammy Malacat y Mandar was charged with violating Section 3 of Presidential Decree No. 1866,[2] as follows:

That on or about August 27, 1990, in the City of Manila, Philippines, the said accused did then and there willfully, unlawfully and knowingly keep, possess and/or acquire a hand grenade, without first securing the necessary license and/or permit therefor from the proper authorities.

At arraignment[3] on 9 October 1990, petitioner, assisted by counsel de oficio, entered a plea of not guilty.

At pre-trial on 11 March 1991, petitioner admitted the existence of Exhibits “A,” “A-1,” and “A-2,”[4] while the prosecution admitted that the police authorities were not armed with a search warrant nor warrant of arrest at the time they arrested petitioner.[5]

At trial on the merits, the prosecution presented the following police officers as its witnesses: Rodolfo Yu, the arresting officer; Josefino G. Serapio, the investigating officer; and Orlando Ramilo, who examined the grenade.

Rodolfo Yu of the Western Police District, Metropolitan Police Force of the Integrated National Police, Police Station No. 3, Quiapo, Manila, testified that on 27 August 1990, at about 6:30 p.m., in response to bomb threats reported seven days earlier, he was on foot patrol with three other police officers (all of them in uniform) along Quezon Boulevard, Quiapo, Manila, near the Mercury Drug store at Plaza Miranda.  They chanced upon two groups of Muslim-looking men, with each group, comprised of three to four men, posted at opposite sides of the corner of Quezon Boulevard near the Mercury Drug Store.  These men were acting suspiciously with “[t]heir eyes … moving very fast.”[6]

Yu and his companions positioned themselves at strategic points and observed both groups for about thirty minutes.  The police officers then approached one group of men, who then fled in different directions.  As the policemen gave chase,  Yu caught up with and apprehended petitioner. Upon searching petitioner, Yu found a fragmentation grenade tucked inside petitioner’s “front waist line.”[7] Yu’s companion, police officer Rogelio Malibiran, apprehended Abdul Casan from whom a .38 caliber revolver was recovered.  Petitioner and Casan were then brought to Police Station No. 3 where Yu placed an “X” mark at the bottom of the grenade and thereafter gave it to his commander.[8]

On cross-examination, Yu declared that they conducted the foot patrol due to a report that a group of Muslims was going to explode a grenade somewhere in the vicinity of Plaza Miranda.  Yu recognized petitioner as the previous Saturday, 25 August 1990, likewise at Plaza Miranda, Yu saw petitioner and 2 others attempt to detonate a grenade.  The attempt

was aborted when Yu and other policemen chased petitioner and his companions; however, the former were unable to catch any of the latter. Yu further admitted that petitioner and Casan were merely standing on the corner of Quezon Boulevard when Yu saw them on 27 August 1990.  Although they were not creating a commotion, since they were supposedly acting suspiciously, Yu and his companions approached them.  Yu did not issue any receipt for the grenade he allegedly recovered from petitioner.[9]

Josefino G. Serapio declared that at about 9:00 a.m. of 28 August 1990, petitioner and a certain Abdul Casan were brought in by Sgt. Saquilla[10] for investigation.  Forthwith, Serapio conducted the inquest of the two suspects, informing them of their rights to remain silent and to be assisted by competent and independent counsel.  Despite Serapio’s advice, petitioner and Casan manifested their willingness to answer questions even without the assistance of a lawyer. Serapio then took petitioner’s uncounselled confession (Exh. “E”), there being no PAO lawyer available, wherein petitioner admitted possession of the grenade.  Thereafter, Serapio prepared the affidavit of arrest and booking sheet of petitioner and Casan.  Later, Serapio turned over the grenade to the Intelligence and Special Action Division (ISAD) of the Explosive Ordnance Disposal Unit for examination.[11]

On cross-examination, Serapio admitted that he took petitioner’s confession knowing it was inadmissible in evidence.[12]

Orlando Ramilo, a member of the Bomb Disposal Unit, whose principal duties included, among other things, the examination of explosive devices, testified that on 22 March 1991, he received a request dated 19 March 1991 from Lt. Eduardo Cabrera and PO Diosdado Diotoy for examination of a grenade.  Ramilo then affixed an orange tag on the subject grenade detailing his name, the date and time he received the specimen. During the preliminary examination of the grenade, he “[f]ound that [the] major components consisting of [a] high filler and fuse assembly [were] all present,” and concluded that the grenade was “[l]ive and capable of exploding.” On even date, he issued a certification stating his findings, a copy of which he forwarded to Diotoy on 11 August 1991.[13]

Petitioner was the lone defense witness.  He declared that he arrived in Manila on 22 July 1990 and resided at the Muslim Center in Quiapo, Manila.  At around 6:30 in the evening of 27 August 1990, he went to  Plaza Miranda to catch a breath of fresh air.  Shortly after, several policemen arrived and ordered all males to stand aside.  The policemen searched petitioner and two other men, but found nothing in their possession.  However, he was arrested with two others, brought to and detained at Precinct No. 3, where he was accused of having shot a police officer.  The officer showed the gunshot wounds he allegedly sustained and shouted at petitioner “[i]to ang tama mo sa akin.”  This officer then inserted the muzzle of his gun into petitioner’s mouth and said, “[y]ou are the one who shot me.”  Petitioner denied the charges and explained that he only recently arrived in Manila.  However, several other police officers mauled him, hitting him with benches and guns. Petitioner was once again

searched, but nothing was found on him.  He saw the grenade only in court when it was presented.[14]

The trial court ruled that the warrantless search and seizure of petitioner was akin to a “stop and frisk,” where a “warrant and seizure can be effected without necessarily being preceded by an arrest” and “whose object is either to maintain the status quo momentarily while the police officer seeks to obtain more information.”[15] Probable cause was not required as it was not certain that a crime had been committed, however, the situation called for an investigation, hence to require probable cause would have been “premature.”[16] The RTC emphasized that Yu and his companions were “[c]onfronted with an emergency, in which the delay necessary to obtain a warrant, threatens the destruction of evidence”[17] and the officers “[h]ad to act in haste,” as petitioner and his companions were acting suspiciously, considering the time, place and “reported cases of bombing.”  Further, petitioner’s group suddenly ran away in different directions as they saw the arresting officers approach, thus “[i]t is reasonable for an officer to conduct a limited search, the purpose of which is not necessarily to discover evidence of a crime, but to allow the officer to pursue his investigation without fear of violence.”[18]

The trial court then ruled that the seizure of the grenade from petitioner was incidental to a lawful arrest, and since petitioner “[l]ater voluntarily admitted such fact to the police investigator for the purpose of bombing the Mercury Drug Store,” concluded that sufficient evidence existed to establish petitioner’s guilt beyond reasonable doubt.

In its decision[19] dated 10 February 1994 but promulgated on 15 February 1994, the trial court thus found petitioner guilty of the crime of illegal possession of explosives under Section 3 of P.D. No. 1866, and sentenced him to suffer:

[T]he penalty of not less than SEVENTEEN (17) YEARS, FOUR (4) MONTHS AND ONE (1) DAY OF RECLUSION TEMPORAL, as minimum, and not more than THIRTY (30) YEARS OF RECLUSION PERPETUA, as maximum.

On 18 February 1994, petitioner filed a notice of appeal[20] indicating that he was appealing to this Court.  However, the record of the case was forwarded to the Court of Appeals which docketed it as CA-G.R. CR No. 15988 and issued a notice to file briefs.[21]

In his Appellant’s Brief [22] filed with the Court of Appeals, petitioner asserted that:

1. THE LOWER COURT ERRED IN HOLDING THAT THE SEARCH UPON THE PERSON OF ACCUSED-APPELLANT AND THE SEIZURE OF THE ALLEGED HANDGRENADE FROM HIM “WAS AN APPROPRIATE INCIDENT TO HIS ARREST.”

2. THE LOWER COURT ERRED IN ADMITTING AS EVIDENCE AGAINST ACCUSED-APPELLANT THE HANDGRENADE ALLEGEDLY SEIZED FROM HIM AS IT WAS A PRODUCT OF AN UNREASONABLE AND ILLEGAL SEARCH.

In sum, petitioner argued that the warrantless arrest was invalid due to absence of any of the conditions provided for in Section 5 of Rule 113 of the Rules of Court, citing People vs. Mengote.[23] As such, the search was illegal, and the hand grenade seized, inadmissible in evidence.

In its Brief for the Appellee, the Office of the Solicitor General agreed with the trial court and prayed that its decision be affirmed in toto.[24]

In its decision of 24 January 1996,[25] the Court of Appeals affirmed the trial court, noting, first, that petitioner abandoned his original theory before the court a quo that the grenade was “planted” by the police officers; and second, the factual finding of the trial court that the grenade was seized from petitioner’s possession was not raised as an issue.  Further, respondent court focused on the admissibility in evidence of Exhibit “D,” the hand grenade seized from petitioner.  Meeting the issue squarely, the Court of Appeals ruled that the arrest was lawful on the ground that there was probable cause for the arrest as petitioner was “attempting to commit an offense,” thus:

We are at a loss to understand how a man, who was in possession of a live grenade and in the company of other suspicious character[s] with unlicensed firearm[s] lurking in Plaza Miranda at a time when political tension ha[d] been enkindling a series of terroristic activities, [can] claim that he was not attempting to commit an offense.  We need not mention that Plaza Miranda is historically notorious for being a favorite bomb site especially during times of political upheaval.  As the mere possession of an unlicensed grenade is by itself an offense, Malacat’s posture is simply too preposterous to inspire belief.

In so doing, the Court of Appeals took into account petitioner’s failure to rebut the testimony of the prosecution witnesses that they received intelligence reports of a bomb threat at Plaza Miranda; the fact that PO Yu chased petitioner two days prior to the latter’s arrest, or on 27 August 1990; and that petitioner and his companions acted suspiciously, the “accumulation” of which was more than sufficient to convince a reasonable man that an offense was about to be committed.  Moreover, the Court of Appeals observed:

The police officers in such a volatile situation would be guilty of gross negligence and dereliction of duty, not to mention of gross incompetence, if they [would] first wait for Malacat to hurl the grenade, and kill several innocent persons while maiming numerous others, before arriving at what would then be an assured but moot conclusion that there was indeed probable cause for an arrest.  We are in agreement with the lower court in saying that the probable cause in such a situation should not be the kind of proof necessary to convict, but

rather the practical considerations of everyday life on which a reasonable and prudent mind, and not legal technicians, will ordinarily act.

Finally, the Court of Appeals held that the rule laid down in People v. Mengote,[26] which petitioner relied upon, was inapplicable in light of “[c]rucial differences,” to wit:

[In Mengote] the police officers never received any intelligence report that someone [at] the corner of a busy street [would] be in possession of a prohibited article.  Here the police officers were responding to a [sic] public clamor to put a check on the series of terroristic bombings in the Metropolis, and, after receiving intelligence reports about a bomb threat aimed at the vicinity of the historically notorious Plaza Miranda, they conducted foot patrols for about seven days to observe suspicious movements in the area.  Furthermore, in Mengote, the police officers [had] no personal knowledge that the person arrested has committed, is actually committing, or is attempting to commit an offense.  Here, PO3 Yu [had] personal knowledge of the fact that he chased Malacat in Plaza Miranda two days before he finally succeeded in apprehending him.

Unable to accept his conviction, petitioner forthwith filed the instant petition and assigns the following errors:

1. THE RESPONDENT COURT ERRED IN AFFIRMING THE FINDING OF THE TRIAL COURT THAT THE WARRANTLESS ARREST OF PETITIONER WAS VALID AND LEGAL.

2. THE RESPONDENT COURT ERRED IN HOLDING THAT THE RULING IN PEOPLE VS. MENGOTE DOES NOT FIND APPLICATION IN THE INSTANT CASE.

In support thereof, petitioner merely restates his arguments below regarding the validity of the warrantless arrest and search, then disagrees with the finding of the Court of Appeals that he was “attempting to commit a crime,” as the evidence for the prosecution merely disclosed that he was “standing at the corner of Plaza Miranda and Quezon Boulevard” with his eyes “moving very fast” and “looking at every person that come (sic) nearer (sic) to them.”  Finally, petitioner points out the factual similarities between his case and that of People v. Mengote to demonstrate that the Court of Appeals miscomprehended the latter.

In its Comment, the Office of the Solicitor General prays that we affirm the challenged decision.

For being impressed with merit, we resolved to give due course to the petition.

The challenged decision must immediately fall on jurisdictional grounds.  To repeat, the penalty imposed by the trial court was:

[N]ot less than SEVENTEEN (17) YEARS, FOUR (4) MONTHS AND ONE (1) DAY OF RECLUSION TEMPORAL, as minimum, and not more than THIRTY (30) YEARS OF RECLUSION PERPETUA, as maximum.

The penalty provided by Section 3 of P.D. No. 1866 upon any person who shall unlawfully possess grenades is reclusion temporal in its maximum period to reclusion perpetua.

For purposes of determining appellate jurisdiction in criminal cases, the maximum of the penalty, and not the minimum, is taken into account.  Since the maximum of the penalty is reclusion perpetua, the appeal therefrom should have been to us, and not the Court of Appeals, pursuant to Section 9(3) of the Judiciary Reorganization Act of 1980 (B.P. Blg. 129),[27] in relation to Section 17 of the Judiciary Act of 1948,[28] Section 5(2) of Article VIII of the Constitution[29] and Section 3(c) of Rule 122 of the Rules of Court.[30] The term “life imprisonment” as used in Section 9 of B.P. Blg. 129, the Judiciary Act of 1948, and Section 3 of Rule 122 must be deemed to include reclusion perpetua in view of Section 5(2) of Article VIII of the Constitution.

Petitioner’s Notice of Appeal indicated that he was appealing from the trial court’s decision to this Court, yet the trial court transmitted the record to the Court of Appeals and the latter proceeded to resolve the appeal.

We then set aside the decision of the Court of Appeals for having been rendered without jurisdiction, and consider the appeal as having been directly brought to us, with the petition for review as petitioner’s Brief for the Appellant, the comment thereon by the Office of the Solicitor General as the Brief for the Appellee and the memoranda of the parties as their Supplemental Briefs.

Deliberating on the foregoing pleadings, we find ourselves convinced that the prosecution failed to establish petitioner’s guilt with moral certainty.

First, serious doubt surrounds the story of police officer Yu that a grenade was found in and seized from petitioner’s possession.  Notably, Yu did not identify, in court, the grenade he allegedly seized. According to him, he turned it over to his commander after putting an “X” mark at its bottom; however, the commander was not presented to corroborate this claim.  On the other hand, the grenade presented in court and identified by police officer Ramilo referred to what the latter received from Lt. Eduardo Cabrera and police officer Diotoy not immediately after petitioner’s arrest, but nearly seven (7) months later, or on 19 March 1991; further, there was no evidence whatsoever that what Ramilo received was the very same grenade seized from petitioner.  In his testimony, Yu never declared that the grenade passed on to Ramilo was the grenade the former confiscated from petitioner.  Yu did not, and was not made to, identify the grenade examined by Ramilo, and the latter did not claim that the grenade he

examined was that seized from petitioner.  Plainly, the law enforcement authorities failed to safeguard and preserve the chain of evidence so crucial in cases such as these.

Second, if indeed petitioner had a grenade with him, and that two days earlier he was with a group about to detonate an explosive at Plaza Miranda, and Yu and his fellow officers chased, but failed to arrest them, then considering that Yu and his three fellow officers were in uniform and therefore easily cognizable as police officers, it was then unnatural and against common experience that petitioner simply stood there in proximity to the police officers.  Note that Yu observed petitioner for thirty minutes and must have been close enough to petitioner in order to discern petitioner’s eyes “moving very fast.”

Finally, even assuming that petitioner admitted possession of the grenade during his custodial investigation by police officer Serapio, such admission was inadmissible in evidence for it was taken in palpable violation of Section 12(1) and (3) of Article III of the Constitution, which provide as follows:

SEC. 12 (1).  Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice.  If the person cannot afford the services of counsel, he must be provided with one.  These rights cannot be waived except in writing and in the presence of counsel.

x x x(3)  Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him.

Serapio conducted the custodial investigation on petitioner the day following his arrest. No lawyer was present and Serapio could not have requested a lawyer to assist petitioner as no PAO lawyer was then available.  Thus, even if petitioner consented to the investigation and waived his rights to remain silent and to counsel, the waiver was invalid as it was not in writing, neither was it executed in the presence of counsel.

Even granting ex gratia that petitioner was in possession of a grenade, the arrest and search of petitioner were invalid, as will be discussed below.

The general rule as regards arrests, searches and seizures is that a warrant is needed in order to validly effect the same.[31] The Constitutional prohibition against unreasonable arrests, searches and seizures refers to those effected without a validly issued warrant,[32] subject to certain exceptions.  As regards valid warrantless arrests, these are found in Section 5, Rule 113 of the Rules of Court, which reads, in part:

Sec. 5. -- Arrest, without warrant; when lawful -- A peace officer or a private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;

(b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped ***

A warrantless arrest under the circumstances contemplated under Section 5(a) has been denominated as one "in flagrante delicto," while that under Section 5(b) has been described as a "hot pursuit" arrest.

Turning to valid warrantless searches, they are limited to the following:  (1) customs searches;  (2) search of moving vehicles;  (3) seizure of evidence in plain view;  (4) consent searches;[33] (5) a search incidental to a lawful arrest;[34] and (6) a "stop and frisk."[35]

In the instant petition, the trial court validated the warrantless search as a “stop and frisk” with “the seizure of the grenade from the accused [as] an appropriate incident to his arrest,” hence necessitating a brief discussion on the nature of these exceptions to the warrant requirement.

At the outset, we note that the trial court confused the concepts of a "stop-and-frisk" and of a search incidental to a lawful arrest.  These two types of warrantless searches differ in terms of the requisite quantum of proof before they may be validly effected and in their allowable scope.

In a search incidental to a lawful arrest, as the precedent arrest determines the validity of the incidental search, the legality of the arrest is questioned in a large majority of these cases, e.g., whether an arrest was merely used as a pretext for conducting a search.[36] In this instance, the law requires that there first be a lawful arrest before a search can be made -- the process cannot be reversed.[37] At bottom, assuming a valid arrest, the arresting officer may search the person of the arrestee and the area within which the latter may reach for a weapon or for evidence to destroy, and seize any money or property found which was used in the commission of the crime, or the fruit of the crime, or that which may be used as evidence, or which might furnish the arrestee with the means of escaping or committing violence.[38]

Here, there could have been no valid in flagrante delicto or hot pursuit arrest preceding the search in light of the lack of personal knowledge on the part of Yu, the arresting officer, or an overt physical act, on the part of petitioner, indicating that a crime had just been committed, was being committed or was going to be committed.

Having thus shown the invalidity of the warrantless arrest in this case, plainly, the search conducted on petitioner could not have been one incidental to a lawful arrest.

We now proceed to the justification for and allowable scope of a "stop-and-frisk" as a "limited protective search of outer clothing for weapons," as laid down in Terry, thus:

We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.  Such a search is a reasonable search under the Fourth Amendment ***[39]

Other notable points of Terry are that while probable cause is not required to conduct a "stop and frisk,"[40] it nevertheless holds that mere suspicion or a hunch will not validate a "stop and frisk."  A genuine reason must exist, in light of the police officer's experience and surrounding conditions, to warrant the belief that the person detained has weapons concealed about him.[41] Finally, a "stop-and-frisk" serves a two-fold interest: (1) the general interest of effective crime prevention and detection, which underlies the recognition that a police officer may, under appropriate circumstances and in an appropriate manner, approach a person for purposes of investigating possible criminal behavior even without probable cause; and (2) the more pressing interest of safety and self-preservation which permit the police officer to take steps to assure himself that the person with whom he deals is not armed with a deadly weapon that could unexpectedly and fatally be used against the police officer.

Here, here are at least three (3) reasons why the “stop-and-frisk” was invalid:

First, we harbor grave doubts as to Yu’s claim that petitioner was a member of the group which attempted to bomb Plaza Miranda two days earlier.  This claim is neither supported by any police report or record nor corroborated by any other police officer who allegedly chased that group.  Aside from impairing Yu's credibility as a witness, this likewise diminishes the probability that a genuine reason existed so as to arrest and search petitioner.  If only to further tarnish the credibility of Yu's testimony, contrary to his claim that petitioner and his companions had to be chased before being apprehended, the affidavit of arrest (Exh. "A") expressly declares otherwise, i.e., upon arrival of five (5) other police officers, petitioner and his companions were "immediately collared."

Second, there was nothing in petitioner’s behavior or conduct which could have reasonably elicited even mere suspicion other than that his eyes were “moving very fast” – an observation which leaves us incredulous since Yu and his teammates were nowhere near petitioner and it was already 6:30 p.m., thus presumably dusk.  Petitioner and his

companions were merely standing at the corner and were not creating any commotion or trouble, as Yu explicitly declared on cross-examination:

Q    And what were they doing?

A     They were merely standing.

Q    You are sure of that?

A     Yes, sir.

Q    And when you saw them standing, there were nothing or they did not create any commotion?

A     None, sir.

Q    Neither did you see them create commotion?

A     None, sir.[42]

Third, there was at all no ground, probable or otherwise, to believe that petitioner was armed with a deadly weapon.  None was visible to Yu, for as he admitted, the alleged grenade was “discovered” “inside the front waistline” of petitioner, and from all indications as to the distance between Yu and petitioner, any telltale bulge, assuming that petitioner was indeed hiding a grenade, could not have been visible to Yu.  In fact, as noted by the trial court:

When the policemen approached the accused and his companions, they were not yet aware that a handgrenade was tucked inside his waistline.  They did not see any bulging object in [sic] his person.[43]

What is unequivocal then in this case are blatant violations of petitioner’s rights solemnly guaranteed in Sections 2 and 12(1) of Article III of the Constitution.

WHEREFORE, the challenged decision of the Seventeenth Division of the Court of Appeals in CA-G.R. CR No. 15988 is SET ASIDE for lack of jurisdiction on the part of said Court and, on ground of reasonable doubt,  the decision of 10 February 1994 of Branch 5 of the Regional Trial Court of Manila is REVERSED and petitioner SAMMY MALACAT y MANDAR is hereby ACQUITTED and ORDERED immediately released from detention, unless his further detention is justified for any other lawful cause.Costs de oficio.SO ORDERED.

G.R. No. 96177 January 27, 1993

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.

MARI MUSA y HANTATALU, accused-appellant.

ROMERO, J.:

The appellant, Mari Musa, seeks, in this appeal, the reversal of the decision, dated August 31, 1990, 1 of the Regional Trial Court (RTC) of Zamboanga City, Branch XII, finding him guilty of selling marijuana in violation of Article II, Section 4 of Republic Act No. 6425, as amended, otherwise known as the Dangerous Drugs Act of 1972.

The information filed on December 15, 1989 against the appellant reads:

That on or about December 14, 1989, in the City of Zamboanga, Philippines, and within the jurisdiction of this Honorable Court, theabove-named accused, not being authorized by law, did then and there, wilfully, unlawfully and feloniously sell to one SGT. AMADO ANI, two (2) wrappers containing dried marijuana leaves, knowing the same to be a prohibited drug.

CONTRARY TO LAW. 2

Upon his arraignment on January 11, 1990, the appellant pleaded not guilty. 3

At the trial, the prosecution presented three (3) witnesses, namely: (1) Sgt. Amado Ani, Jr. of the 9th Narcotics Command (NARCOM) of Zamboanga City, who acted as poseur-buyer in the buy-bust operation made against the appellant; (2) T/Sgt. Jesus Belarga, also of the 9th Narcotics Command of Zamboanga City, who was the NARCOM team leader of the buy-bust operation; and (3) Athena Elisa P. Anderson, the Document Examiner and Forensic Chemist of PC-INP Crime Laboratory of Regional Command (RECOM) 9. The evidence of the prosecution was summarized by the trial court as follows:

Prosecution evidence shows that in the morning of December 13, 1989, T/Sgt. Jesus Belarga, leader of a NARCOTICS COMMAND (NARCOM) team based at Calarian, Zamboanga City, instructed Sgt. Amado Ani to conduct surveillance and test buy on a certain Mari Musa of Suterville, Zamboanga City. Information received from civilian informer was that this Mari Musa was engaged in selling marijuana in said place. So Sgt. Amado Ani, another NARCOM agent, proceeded to Suterville, in company with a NARCOM civilian informer, to the house of Mari Musa to which house the civilian informer had guided him. The same civilian informer had also described to him the appearance of Mari Musa. Amado Ani was able to buy one newspaper-wrapped dried marijuana (Exh. "E") for P10.00. Sgt. Ani returned to the NARCOM office and turned over the newspaper-wrapped marijuana to T/Sgt. Jesus Belarga. Sgt. Belarga inspected the stuff turned over to him and found it to be marijuana.

The next day, December 14, 1989, about 1:30 P.M., a buy-bust was planned. Sgt. Amado Ani was assigned as the poseur buyer for which purpose he was given P20.00 (with SN GA955883) by Belarga. Thebuy-bust money had been taken by T/Sgt. Jesus Belarga from M/Sgt. Noh Sali Mihasun, Chief of Investigation Section, and for which Belarga signed a receipt (Exh. "L" & "L-l" ) The team under Sgt. Foncargas was assigned as back-up security. A pre-arranged signal was arranged consisting of Sgt. Ani's raising his right hand, after he had succeeded to buy the marijuana. The two NARCOM teams proceeded to the target site in two civilian vehicles. Belarga's team was composed of Sgt. Belarga, team leader, Sgt. Amado Ani, poseur buyer, Sgt. Lego and Sgt. Biong.

Arriving at the target site, Sgt. Ani proceeded to the house of Mari Musa, while the rest of the NARCOM group positioned themselves at strategic places about 90 to 100 meters from Mari Musa's house. T/Sgt. Belarga could see what went on between Ani and suspect Mari Musa from where he was. Ani approached Mari Musa, who came out of his house, and asked Ani what he wanted. Ani said he wanted some more stuff. Ani gave Mari Musa the P20.00 marked money. After receiving the money, Mari Musa went back to his house and came back and gave Amado Ani two newspaper wrappers containing dried marijuana. Ani opened the two wrappers and inspected the contents. Convinced that the contents were marijuana, Ani walked back towards his companions and raised his right hand. The two NARCOM teams, riding the two civilian vehicles, sped towards Sgt. Ani. Ani joined Belarga's team and returned to the house.

At the time Sgt. Ani first approached Mari Musa, there were four persons inside his house: Mari Musa, another boy, and two women, one of whom Ani and Belarga later came to know to be Mari Musa's wife. The second time, Ani with the NARCOM team returned to Mari Musa's house, the woman, who was later known as Mari Musa's wife, slipped away from the house. Sgt. Belarga frisked Mari Musa but could not find the P20.00 marked money with him. Mari Musa was then asked where the P20.00 was and he told the NARCOM team he has given the money to his wife (who had slipped away). Sgt. Belarga also found a plastic bag containing dried marijuana inside it somewhere in the kitchen. Mari Musa was then placed under arrest and brought to the NARCOM office. At Suterville, Sgt. Ani turned over to Sgt. Belarga the two newspaper-wrapped marijuana he had earlier bought from Mari Musa (Exhs. "C" & "D").

In the NARCOM office, Mari Musa first gave his name as Hussin Musa. Later on, Mari Musa gave his true name — Mari Musa. T/Sgt. Jesus Belarga turned over the two newspaper-wrapped marijuana (bought at the buy-bust), the one newspaper-wrapped marijuana (bought at the test-buy) and the plastic bag containing more marijuana (which had been taken by Sgt. Lego inside the kitchen of Mari Musa) to the PC Crime Laboratory, Zamboanga City, for laboratory examination. The turnover of the marijuana specimen to the PC Crime Laboratory

was by way of a letter-request, dated December 14, 1989 (Exh. "B"), which was stamped "RECEIVED" by the PC Crime Laboratory (Exh. "B-1") on the same day.

Mrs. Athena Elisa P. Anderson, the Forensic Chemist of the PC Crime Laboratory, examined the marijuana specimens subjecting the same to her three tests. All submitted specimens she examined gave positive results for the presence of marijuana. Mrs. Anderson reported the results of her examination in her Chemistry Report D-100-89, dated December 14, 1989, (Exh. "J", "J-1", "J-2", "J-3", "J-4" and "J-5"). Mrs. Anderson identified in court the two newspaper wrapped marijuana bought at thebuy-bust on December 14, 1989, through her initial and the weight of each specimen written with red ink on each wrapper (Exhs. "C-1" and "D-1"). She also identified the one newspaper-wrapped marijuana bought at the test-buy on December 13, 1989, through her markings (Exh. "E-1"). Mrs. Anderson also identified her Chemistry Report (Exh. "J" & sub-markings.)

T. Sgt. Belarga identified the two buy-bust newspaper wrapped marijuana through his initial, the words "buy-bust" and the words "December 14, 1989, 2:45 P.M." (written on Exhs. "C" and "D"). Belarga also identified the receipt of the P20 marked money (with SN GA955883) (Exh. "L"), dated December 14, 1989, and his signature thereon (Exh."L-1"). He also identified the letter-request, dated December 14, 1989, addressed to the PC Crime Laboratory (Exh. "B") and his signature thereon (Exh. "B-2") and the stamp of the PC Crime Laboratory marked "RECEIVED" (Exh. "B-1"). 4

For the defense, the following testified as witnesses: (1) the accused-appellant Mari H. Musa; and (2) Ahara R. Musa, his wife. The trial court summarized the version of the defense, thus:

[O]n December 14, 1989, at about 1:30 in the afternoon, Mari Musa was in his house at Suterville, Zamboanga City. With him were his wife, Ahara Musa, known as Ara, his one-year old child, a woman manicurist, and a male cousin named Abdul Musa. About 1:30 that afternoon, while he was being manicured at one hand, his wife was inside the one room of their house, putting their child to sleep. Three NARCOM agents, who introduced themselves as NARCOM agents, dressed in civilian clothes, got inside Mari Musa's house whose door was open. The NARCOM agents did not ask permission to enter the house but simply announced that they were NARCOM agents. The NARCOM agents searched Mari Musa's house and Mari Musa asked them if they had a search warrant. The NARCOM agents were just silent. The NARCOM agents found a red plastic bag whose contents, Mari Musa said, he did not know. He also did not know if the plastic bag belonged to his brother, Faisal, who was living with him, or his father, who was living in another house about ten arms-length away. Mari Musa, then, was handcuffed and when Mari Musa asked why, the NARCOM agents told him for clarification.

Mari Musa was brought in a pick-up, his wife joining him to the NARCOM Office at Calarian, Zamboanga City. Inside the NARCOM Office, Mari Musa was investigated by one NARCOM

agent which investigation was reduced into writing. The writing or document was interpreted to Mari Musa in Tagalog. The document stated that the marijuana belonged to Mari Musa and Mari Musa was asked to sign it. But Mari Musa refused to sign because the marijuana did not belong to him. Mari Musa said he was not told that he was entitled to the assistance of counsel, although he himself told the NARCOM agents he wanted to be assisted by counsel.

Mari Musa said four bullets were then placed between the fingers of his right hand and his fingers were pressed which felt very painful. The NARCOM agents boxed him and Mari Musa lost consciousness. While Mari Musa was maltreated, he said his wife was outside the NARCOM building. The very day he was arrested (on cross-examination Mari Musa said it was on the next day), Mari Musa was brought to the Fiscal's Office by three NARCOM agents. The fiscal asked him if the marijuana was owned by him and he said "not." After that single question, Mari Musa was brought to the City Jail. Mari Musa said he did not tell the fiscal that he had been maltreated by the NARCOM agents because he was afraid he might be maltreated in the fiscal's office.

Mari Musa denied the NARCOM agents' charge that he had sold two wrappers of marijuana to them; that he had received from them a P20.00 bill which he had given to his wife. He did not sell marijuana because he was afraid that was against the law and that the person selling marijuana was caught by the authorities; and he had a wife and a very small child to support. Mari Musa said he had not been arrested for selling marijuana before. 5

After trial, the trial court rendered the assailed decision with the following disposition:

WHEREFORE, finding accused Mari Musa y Hantatalu guilty beyond reasonable doubt of selling marijuana and pursuant to Sec. 4, Art II of Rep. Act No. 6425, he is sentenced to life imprisonment and to pay the fine of P20,000.00, the latter imposed without subsidiary imprisonment. 6

In this appeal, the appellant contends that his guilt was not proved beyond reasonable doubt and impugns the credibility of the prosecution witnesses.

The appellant claims that the testimony of Sgt. Ani, the poseur-buyer, is not credible because: (1) prior to the buy-bust operation, neither Sgt. Ani nor the other NARCOM agents were personally known by the appellant or vice-versa; and (2) there was no witness to the alleged giving of the two wrappers of marijuana by the appellant to Sgt. Ani.

Sgt. Ani testified that on December 13, 1989, upon instruction by T/Sgt. Jesus Belarga, he conducted a test-buy operation on the appellant whereby he bought one wrapper of marijuana for P15.00 from the latter. 7 He reported the successful operation to T/Sgt. Belarga on the same day. 8 Whereupon, T/Sgt. Belarga conducted a conference to organize a buy-bust operation for the following day. 9

On December 14, 1989, at 1:30 p.m., two NARCOM teams in separate vehicles headed by T/Sgt. Belarga and a certain Sgt. Foncardas went to the place of operation, which was the appellant's house located in Laquian Compound, Suterville, Zamboanga City. Sgt. Ani was with the team of T/Sgt. Belarga, whose other members were Sgts. Lego and Biong. 10 Sgt. Ani was given a marked P20.00 bill by T/Sgt. Belarga, which was to be used in the operation.

Upon reaching the place, the NARCOM agents positioned themselves at strategic places. 11 Sgt. Ani approached the house. Outside the house, the appellant asked Sgt. Ani what he wanted. Sgt. Ani asked him for some more marijuana. 12 Sgt. Ani gave him the marked P20.00 bill and the appellant went inside the house and brought back two paper wrappers containing marijuana which he handed to Sgt. Ani. 13 From his position, Sgt. Ani could see that there were other people in the house. 14

After the exchange, Sgt. Ani approached the other NARCOM agents and made the pre-arranged signal of raising his right hand. 15 The NARCOM agents, accompanied by Sgt. Ani, went inside the house and made the arrest. The agents searched the appellant and unable to find the marked money, they asked him where it was. The appellant said that he gave it to his wife. 16

The Court, after a careful reading of the record, finds the testimony of Sgt. Ani regarding the buy-bust operation, which resulted in the apprehension, prosecution and subsequent conviction of the appellant, to be direct, lucid and forthright. Being totally untainted by contradictions in any of the material points, it deserves credence.

The contention that the appellant could not have transacted with Sgt. Ani because they do not know each other is without merit. The day before thebuy-bust operation, Sgt. Ani conducted a test-buy and he successfully bought a wrapper of marijuana from the appellant. Through this previous transaction, Sgt. Ani was able to gain the appellant's confidence for the latter to sell more marijuana to Sgt. Ani the following day, during the buy-bust operation. Moreover, the Court has held that what matters is not an existing familiarity between the buyer and the seller, for quite often, the parties to the transaction may be strangers, but their agreement and the acts constituting the sale and delivery of the marijuana. 17

The appellant, again to cast doubt on the credibility of Sgt. Ani, argues that it was impossible for the appellant to sell marijuana while his wife, cousin and manicurist were present. But the place of the commission of the crime of selling prohibited drugs has been held to be not crucial 18 and the presence of other people apart from the buyer and seller will not necessarily prevent the consummation of the illegal sale. As the Court observed in People v. Paco, 19 these factors may sometimes camouflage the commission of the crime. In the instant case, the fact that the other people inside the appellant's house are known to the appellant may have given him some assurance that these people will not report him to the authorities.

The appellant, besides assailing Sgt. Ani's credibility, also questions the credibility of T/Sgt. Belarga. The appellant submits that since T/Sgt. Belarga admitted that he was about 90 meters away from Sgt. Ani and the appellant, he could not have possibly witnessed the sale. The appellant invokes People v.Ale 20 where the Court observed that from a distance of 10-15 meters, a policeman cannot distinguish between marijuana cigarette from ordinary ones by the type of rolling done on the cigarette sticks. And since T/Sgt. Belarga allegedly did not see the sale, the appellant contends that the uncorroborated testimony of Sgt. Ani can not stand as basis for his conviction.

People v. Ale does not apply here because the policeman in that case testified that he and his companion were certain that the appellant therein handed marijuana cigarettes to the poseur-buyer based on the appearance of the cigarette sticks. The Court rejected this claim, stating that:

This Court cannot give full credit to the testimonies of the prosecution witnesses marked as they are with contradictions and tainted with inaccuracies.

Biñan testified that they were able to tell that the four cigarettes were marijuana cigarettes because according to him, the rolling of ordinary cigarettes are different from those of marijuana cigarettes. (tsn, November 13, 1984, p. 10).

It is however, incredible to believe that they could discern the type of rolling done on those cigarettes from the distance where they were observing the alleged sale of more or less 10 to 15 meters. 21

In the case at bar, however, T/Sgt. Belarga did not positively claim that he saw the appellant hand over marijuana to Sgt. Ani. What he said was that there was an exchange of certain articles between the two. The relevant portion of T/Sgt. Belarga's testimony reads: 22

Q Now, do you remember whether Sgt. Ani was able to reach the house of Mari Musa?

A Yes, ma'am.

Q After reaching Mari Musa, did you see what happened (sic)?

A Yes, ma'am.

Q Could you please tell us?

A From our vehicle the stainless owner type jeep where Sgt. Lego, Sgt. Biong were boarded, I saw that Sgt. Ani proceeded to the house near the road and he was met by one person and later known as Mari Musa who was at the time wearing short pants and later on I saw that

Sgt. Ani handed something to him, thereafter received by Mari Musa and went inside the house and came back later and handed something to Sgt. Ani.

Contrary to the contention of the appellant, it was not impossible for T/Sgt. Belarga to have seen, from a distance of 90-100 meters, Sgt. Ani hand to the appellant "something" and for the latter to give to the former "something."

Notwithstanding the fact that T/Sgt. Belarga could not have been certain that what Sgt. Ani received from the appellant was marijuana because of the distance, his testimony, nevertheless, corroborated the direct evidence, which the Court earlier ruled to be convincing, presented by Sgt. Ani on the following material points: (1) T/Sgt. Belarga instructed Sgt. Ani to conduct a surveillance and test-buy operation on the appellant at Suterville, Zamboanga City on December 13, 1989; 23 (2) later that same day, Sgt. Ani went back to their office and reported a successful operation and turned over to T/Sgt. Belarga one wrapper of marijuana; 24 (3) T/Sgt. Belarga then organized a team to conduct a buy-bust operation the following day; 25 (4) on December 14, 1989, T/Sgt. Belarga led a team of NARCOM agents who went to Suterville, Zamboanga City; 26 (5) T/Sgt. Belarga gave a P20.00 marked bill to Sgt. Ani which was to be used in the buy-bust operation; 27 (6) upon the arrival of the NARCOM agents in Suterville, Zamboanga City, Sgt. Ani proceeded to the house of the appellant while some agents stayed in the vehicles and others positioned themselves in strategic places; 28 the appellant met Sgt. Ani and an exchange of articles took place. 29

The corroborative testimony of T/Sgt. Belarga strengthens the direct evidence given by Sgt. Ani. Additionally, the Court has ruled that the fact that the police officers who accompanied the poseur-buyer were unable to see exactly what the appellant gave the poseur-buyer because of their distance or position will not be fatal to the prosecution's case 30 provided there exists other evidence, direct or circumstantial, e.g., the testimony of the poseur-buyer, which is sufficient to prove the consummation of the sale of the prohibited drug

The appellant next assails the seizure and admission as evidence of a plastic bag containing marijuana which the NARCOM agents found in the appellant's kitchen. It appears that after Sgt. Ani gave the pre-arranged signal to the other NARCOM agents, the latter moved in and arrested the appellant inside the house. They searched him to retrieve the marked money but didn't find it. Upon being questioned, the appellant said that he gave the marked money to his wife. 31 Thereafter, T/Sgt. Belarga and Sgt. Lego went to the kitchen and noticed what T/Sgt. Belarga described as a "cellophane colored white and stripe hanging at the corner of the kitchen." 32 They asked the appellant about its contents but failing to get a response, they opened it and found dried marijuana leaves. At the trial, the appellant questioned the admissibility of the plastic bag and the marijuana it contains but the trial court issued an Order ruling that these are admissible in evidence. 33

Built into the Constitution are guarantees on the freedom of every individual against unreasonable searches and seizures by providing in Article III, Section 2, the following:

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 witness he may produce, and particularly describing the place to be searched and the persons or things to be seized.

Furthermore, the Constitution, in conformity with the doctrine laid down in Stonehill v. Diokno, 34 declares inadmissible, any evidence obtained in violation of the freedom from unreasonable searches and seizures. 35

While a valid search warrant is generally necessary before a search and seizure may be effected, exceptions to this rule are recognized. Thus, in Alvero v. Dizon, 36 the Court stated that. "[t]he most important exception to the necessity for a search warrant is the right of search and seizure as an incident to a lawful arrest." 37

Rule 126, Section 12 of the Rules of Court expressly authorizes a warrantless search and seizure incident to a lawful arrest, thus:

Sec. 12. Search incident to lawful arrest. — A person lawfully arrested may be searched for dangerous weapons or anything which may be used as proof of the commission of an offense, without a search warrant.

There is no doubt that the warrantless search incidental to a lawful arrest authorizes the arresting officer to make a search upon the person of the person arrested. As early as 1909, the Court has ruled that "[a]n officer making an arrest may take from the person arrested any money or property found upon his person which was used in the commission of the crime or was the fruit of the crime or which might furnish the prisoner with the means of committingviolence or of escaping, or which may be used as evidence in the trial of the cause . . . " 38 Hence, in a buy-bust operation conducted to entrap a drug-pusher, the law enforcement agents may seize the marked money found on the personof the pusher immediately after the arrest even without arrest and search warrants. 39

In the case at bar, the NARCOM agents searched the person of the appellant after arresting him in his house but found nothing. They then searched the entire house and, in the kitchen, found and seized a plastic bag hanging in a corner.

The warrantless search and seizure, as an incident to a suspect's lawful arrest, may extend beyond the person of the one arrested to include the premises or surroundings under his

immediate control. 40 Objects in the "plain view" of an officer who has the right to be in the position to have that view are subject to seizure and may be presented as evidence. 41

In Ker v. California 42 police officers, without securing a search warrant but having information that the defendant husband was selling marijuana from his apartment, obtained from the building manager a passkey to defendants' apartment, and entered it. There they found the defendant husband in the living room. The defendant wife emerged from the kitchen, and one of the officers, after identifying himself, observed through the open doorway of the kitchen, a small scale atop the kitchen sink, upon which lay a brick-shaped package containing green leafy substance which he recognized as marijuana. The package of marijuana was used as evidence in prosecuting defendants for violation of the Narcotic Law. The admissibility of the package was challenged before the U.S. Supreme Court, which held, after observing that it was not unreasonable for the officer to walk to the doorway of the adjacent kitchen on seeing the defendant wife emerge therefrom, that "the discovery of the brick of marijuana did not constitute a search, since the officer merely saw what was placed before him in full view. 43 The U.S. Supreme Court ruled that the warrantless seizure of the marijuana was legal on the basis of the "plain view" doctrine and upheld the admissibility of the seized drugs as part of the prosecution's evidence. 44

The "plain view" doctrine may not, however, be used to launch unbridled searches and indiscriminate seizures nor to extend a general exploratory search made solely to find evidence of defendant's guilt. The "plain view" doctrine is usually applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object. 45 Furthermore, the U.S. Supreme Court stated the following limitations on the application of the doctrine:

What the "plain view" cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification — whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused — and permits the warrantless seizure. Of course, the extension of the original justification is legitimate only where it is immediately apparent to the police that they have evidence before them; the "plain view" doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges. 46

It has also been suggested that even if an object is observed in "plain view," the "plain view" doctrine will not justify the seizure of the object where the incriminating nature of the object is not apparent from the "plain view" of the object. 47 Stated differently, it must be immediately apparent to the police that the items that they observe may be evidence of a crime, contraband, or otherwise subject to seizure.

In the instant case, the appellant was arrested and his person searched in the living room. Failing to retrieve the marked money which they hoped to find, the NARCOM agents searched the whole house and found the plastic bag in the kitchen. The plastic bag was, therefore, not within their "plain view" when they arrested the appellant as to justify its seizure. The NARCOM agents had to move from one portion of the house to another before they sighted the plastic bag. Unlike Ker vs. California, where the police officer had reason to walk to the doorway of the adjacent kitchen and from which position he saw the marijuana, the NARCOM agents in this case went from room to room with the obvious intention of fishing for more evidence.

Moreover, when the NARCOM agents saw the plastic bag hanging in one corner of the kitchen, they had no clue as to its contents. They had to ask the appellant what the bag contained. When the appellant refused to respond, they opened it and found the marijuana. Unlike Ker v. California, where the marijuana was visible to the police officer's eyes, the NARCOM agents in this case could not have discovered the inculpatory nature of the contents of the bag had they not forcibly opened it. Even assuming then, that the NARCOM agents inadvertently came across the plastic bag because it was within their "plain view," what may be said to be the object in their "plain view" was just the plastic bag and not the marijuana. The incriminating nature of the contents of the plastic bag was not immediately apparent from the "plain view" of said object. It cannot be claimed that the plastic bag clearly betrayed its contents, whether by its distinctive configuration, its transprarency, or otherwise, that its contents are obvious to an observer.48

We, therefore, hold that under the circumstances of the case, the "plain view" doctrine does not apply and the marijuana contained in the plastic bag was seized illegally and cannot be presented in evidence pursuant to Article III, Section 3(2) of the Constitution.

The exclusion of this particular evidence does not, however, diminish, in any way, the damaging effect of the other pieces of evidence presented by the prosecution to prove that the appellant sold marijuana, in violation of Article II, Section 4 of the Dangerous Drugs Act of 1972. We hold that by virtue of the testimonies of Sgt. Ani and T/Sgt. Belarga and the two wrappings of marijuana sold by the appellant to Sgt. Ani, among other pieces of evidence, the guilt of the appellant of the crime charged has been proved beyond reasonable doubt.

WHEREFORE, the appeal is DISMISSED and the judgment of the Regional Trial Court AFFIRMED.SO ORDERED.

Republic of the PhilippinesSUPREME COURTManila

SECOND DIVISION

G.R. No. L-68955 September 4, 1986

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.RUBEN BURGOS y TITO, defendant-appellant.

GUTIERREZ, JR., J.:

This is an appeal from the decision of the Regional Trial Court of Davao del Sur, 11 th Judicial Region, Digos, Davao del Sur convicting defendant- appellant Ruben Burgos y Tito of The crime of Illegal Possession of Firearms in Furtherance of Subversion. The dispositive portion of the decision reads:

WHEREFORE, finding the guilt of accused Ruben Burgos sufficiently established beyond reasonable doubt, of the offense charges , pursuant to Presidential Decree No. 9, in relation to General Order No. 6, dated September 22, 1972, and General Order No. 7, dated September 23, 1972, in relation further to Presidential Decree No. 885, and considering that the firearm subject of this case was not used in the circumstances as embraced in paragraph I thereof, applying the provision of indeterminate sentence law, accused Ruben Burgos is hereby sentenced to suffer an imprisonment of twenty (20) years of reclusion temporal maximum, as minimum penalty, to reclusion perpetua, as maximum penalty, pursuant to sub-paragraph B, of Presidential Decree No. 9, as aforementioned, with accessory penalties, as provided for by law.

As a result of this judgment, the subject firearm involved in this case (Homemade revolver, caliber .38, Smith and Wesson, with Serial No. 8.69221) is hereby ordered confiscated in favor of the government, to be disposed of in accordance with law. Likewise, the subversive documents, leaflets and/or propaganda seized are ordered disposed of in accordance with law.

The information charged the defendant-appellant with the crime of illegal possession of firearm in furtherance of subversion in an information which reads as follows:

That in the afternoon of May 13, 1982 and thereabout at Tiguman, Digos, Davao del Sur, Philippines, within the jurisdiction of this Court, the above- named accused with intent to possess and without the necessary license, permit or authority issued by the proper government agencies, did then and there wilfully, unlawfully and feloniously keep, possess, carry and have in his possession, control and custody one (1) homemade revolver, caliber .38, make Smith and Wesson, with Serial No. 8.69221, which firearm was issued to and used by the accused at Tiguman, Digos, Davao del Sur, his area of operations by one Alias Commander Pol for the New People's Army (NPA), a subversive organization organized for the purpose of overthrowing the Government of the Republic of the Philippines through

lawless and violent means, of which the accused had knowledge, and which firearm was used by the accused in the performance of his subversive tasks such as the recruitment of New Members to the NPA and collection of contributions from the members.

CONTRARY TO LAW.

The evidence for the prosecution is summarized in the decision of the lower court as follows:

xxx xxx xxx

. . . Through the testimony of Pat. Pepito Bioco, and Sgt. Romeo Taroy, it appears that by virtue of an intelligent information obtained by the Constabulary and INP units, stationed at Digos, Davao del Sur, on May 12, 1982, one Cesar Masamlok personally and voluntarily surre0ndered to the authorities at about 9:00 o'clock A.M. at Digos, Davao del Sur Constabulary Headquarters, stating that he was forcibly recruited by accused Ruben Burgos as member of the NPA, threatening him with the use of firearm against his life, if he refused.

Along with his recruitment, accused was asked to contribute one (1) chopa of rice and one peso (P1.00) per month, as his contribution to the NPA TSN, page 5, Hearing-October 14, 1982).

Immediately, upon receipt of said information, a joint team of PC-INP units, composed of fifteen (15) members, headed by Captain Melchesideck Bargio, (PC), on the following day, May 13, 1982, was dispatched at Tiguman; Davao del Sur, to arrest accused Ruben Burgos. The team left the headquarter at 1:30 P.M., and arrived at Tiguman, at more or less 2:00 o'clock PM where through the help of Pedro Burgos, brother of accused, the team was able to locate accused, who was plowing his field. (TSN, pages 6-7, Hearing-October 14, 1982).

Right in the house of accused, the latter was caned by the team and Pat. Bioco asked accused about his firearm, as reported by Cesar Masamlok. At first accused denied possession of said firearm but later, upon question profounded by Sgt. Alejandro Buncalan with the wife of the accused, the latter pointed to a place below their house where a gun was buried in the ground. (TSN, page 8, Hearing-October 14, 1982).

Pat. Bioco then verified the place pointed by accused's wife and dug the grounds, after which he recovered the firearm, Caliber .38 revolver, marked as Exhibit "A" for the prosecution.

After the recovery of the firearm, accused likewise pointed to the team, subversive documents which he allegedly kept in a stock pile of qqqcogon at a distance of three (3) meters apart from his house. Then Sgt. Taroy accordingly verified beneath said cogon grass and likewise recovered documents consisting of notebook colored maroon with spiral bound, Exhibit "B" for the prosecution; a pamphlet consisting of eight (8) leaves, including the front and back covers entitled Ang Bayan, Pahayagan ng Partido Komunista ng Pilipinas,

Pinapatnubayan ng Marxismo, Leninismo Kaisipang Mao qqqZedong dated December 31, 1980, marked as Exhibit "C", and another pamphlet Asdang Pamantalaang Masa sa Habagatang Mindanao, March and April 1981 issue, consisting of ten (10) pages, marked as Exhibit "D" for the prosecution.

Accused, when confronted with the firearm Exhibit "A", after its recovery, readily admitted the same as issued to him by Nestor Jimenez, otherwise known as a certain Alias Pedipol, allegedly team leader of the sparrow unit of New People's Army, responsible in the liquidation of target personalities, opposed to NPA Ideological movement, an example was the killing of the late Mayor Llanos and Barangay Captain of Tienda Aplaya Digos, Davao del Sur. (TSN, pages 1-16, Hearing-October 14,1982).

To prove accused's subversive activities, Cesar Masamlok, a former NPA convert was presented, who declared that on March 7, 1972, in his former residence at Tiguman Digos, Davao del Sur, accused Ruben Burgos, accompanied by his companions Landrino Burgos, Oscar Gomez and Antonio Burgos, went to his house at about 5:00 o'clock P.M. and called him downstair. Thereupon, accused told Masamlok, their purpose was to ask rice and one (1) peso from him, as his contribution to their companions, the NPA of which he is now a member. (TSN, pages 70, 71, 72, Hearing-January 4, 1983).

Accused and his companions told Masamlok, he has to join their group otherwise, he and his family will be killed. He was also warned not to reveal anything with the government authorities. Because of the threat to his life and family, Cesar Masamlok joined the group. Accused then told him, he should attend a seminar scheduled on April 19, 1982. Along with this invitation, accused pulled gut from his waistline a .38 caliber revolver which Masamlok really saw, being only about two (2) meters away from accused, which make him easily Identified said firearm, as that marked as Exhibit "A" for the prosecution. (TSN, pages 72, 73, and 74, Hearing-January 4, 1983).

On April 19, 1982, as previously invited, Masamlok, accompanied by his father, Matuguil Masamlok, Isabel Ilan and Ayok Ides went to the house of accused and attended the seminar, Those present in the seminar were: accused Ruben Burgos, Antonio Burgos, Oscar Gomez, Landrino Burgos, alias Pedipol and one alias Jamper.

The first speaker was accused Ruben Burgos, who said very distinctly that he is an NPA together with his companions, to assure the unity of the civilian. That he encouraged the group to overthrow the government, emphasizing that those who attended the seminar were already members of the NPA, and if they reveal to the authorities, they will be killed.

Accused, while talking, showed to the audience pamphlets and documents, then finally shouted, the NPA will be victorious. Masamlok likewise Identified the pamphlets as those

marked as Exh. exhibits "B", "C", and "D" for the prosecution. (TSN, pages 75, 76 and 77, Hearing-January 4, 1983)

Other speakers in said meeting were Pedipol, Jamper and Oscar Gomez, who likewise expounded their own opinions about the NPA. It was also announced in said seminar that a certain Tonio Burgos, will be responsible for the collection of the contribution from the members. (TSN, pages 78-79, Hearing- January 4, 1983)

On May 12, 1982, however, Cesar Masamlok surrendered to Captain Bargio of the Provincial Headquarters of the Philippine Constabulary, Digos, Davao del Sur.

Assistant Provincial Fiscal Panfilo Lovitos was presented t prove that on May 19, 1982, he administered the subscription of th extra-judicial confession of accused Ruben Burgos, marked as Exhibit "E " for the prosecution, consisting of five (5) pages.

Appearing voluntarily in said office, for the subscription of his confession, Fiscal Lovitos, realizing that accused was not represented by counsel, requested the services of Atty. Anyog, whose office is adjacent to the Fiscal's Office, to assist accused in the subscription of his extra-judicial statement.

Atty. Anyog assisted accused in the reading of his confession from English to Visayan language, resulting to the deletion of question No. 19 of the document, by an inserted certification of Atty. Anyog and signature of accused, indicating his having understood, the allegations of his extra-judicial statement.

Fiscal Lovitos, before accused signed his statement, explained to him his constitutional rights to remain silent, right to counsel and right to answer any question propounded or not.

With the aid of Atty. Anyog, accused signed his confession in the presence of Atty. Anyog and Fiscal Lovitos, without the presence of military authorities, who escorted the accused, but were sent outside the cubicle of Fiscal Lovitos while waiting for the accused. (TSN, pages 36-40, nearing November 15, 1982)

Finally, in order to prove illegal possession by accused of the subject firearm, Sgt. Epifanio Comabig in-charge of firearms and explosives, NCO Headquarter, Philippine Constabulary, Digos, Davao del Sur, was presented and testified, that among the lists of firearm holders in Davao del Sur, nothing was listed in the name of accused Ruben Burgos, neither was his name included among the lists of persons who applied for the licensing of the firearm under Presidential Decree No. 1745.

After the above-testimony the prosecution formally closed its case and offered its exhibits, which were all admitted in evidence, despite objection interposed by counsel for accused, which was accordingly overruled.

On the other hand, the defendant-appellant's version of the case against him is stated in the decision as follows:

From his farm, the military personnel, whom he said he cannot recognize, brought him to the PC Barracks at Digos, Davao del Sur, and arrived there at about 3:00 o'clock, on the same date. At about 8:00 o'clock P.M., in the evening, he was investigated by soldiers, whom he cannot Identify because they were wearing a civilian attire. (TSN, page 14 1, Hearing-June 15, 1983)

The investigation was conducted in the PC barracks, where he was detained with respect to the subject firearm, which the investigator, wished him to admit but accused denied its ownership. Because of his refusal accused was mauled, hitting him on the left and right side of his body which rendered him unconscious. Accused in an atmosphere of tersed solemnity, crying and with emotional attachment, described in detail how he was tortured and the ordeals he was subjected.

He said, after recovery of his consciousness, he was again confronted with subject firearm, Exhibit "A", for him to admit and when he repeatedly refused to accept as his own firearm, he was subjected to further prolong (sic) torture and physical agony. Accused said, his eyes were covered with wet black cloth with pungent effect on his eyes. He was undressed, with only blindfold, pungent water poured in his body and over his private parts, making his entire body, particularly his penis and testicle, terribly irritating with pungent pain.

All along, he was investigated to obtain his admission, The process of beating, mauling, pain and/or ordeal was repeatedly done in similar cycle, from May 13 and 14, 1982. intercepted only whenever he fell unconscious and again repeated after recovery of his senses,

Finally on May 15, 1982, after undergoing the same torture and physical ordeal he was seriously warned, if he will still adamantly refuse to accept ownership of the subject firearm, he will be salvaged, and no longer able to bear any further the pain and agony, accused admitted ownership of subject firearm.

After his admission, the mauling and torture stopped, but accused was made to sign his affidavit marked as Exhibit "E" for the prosecution, consisting of five (5) pages, including the certification of the administering officer, (TSN, pages 141-148, Hearing-June 15, 1983)

In addition to how he described the torture inflicted on him, accused, by way of explanation and commentary in details, and going one by one, the allegations and/or contents of his alleged extrajudicial statement, attributed his answers to those questions involuntarily made only because of fear, threat and intimidation of his person and family, as a result of unbearable excruciating pain he was subjected by an investigator, who, unfortunately he

cannot Identify and was able to obtain his admission of the subject firearm, by force and violence exerted over his person.

To support denial of accused of being involved in any subversive activities, and also to support his denial to the truth of his alleged extra-judicial confession, particularly questions Nos. 35, 38, 41, 42, 43, 44, 45, 46 and 47, along with qqqs answers to those questions, involving Honorata Arellano ahas Inday Arellano, said Honorata Arellano appeared and declared categorically, that the above-questions embraced in the numbers allegedly stated in the extrajudicial confession of accused, involving her to such NPA personalities, as Jamper, Pol, Anthony, etc., were not true because on the date referred on April 28, 1982, none of the persons mentioned came to her house for treatment, neither did she meet the accused nor able to talk with him. (TSN, pages 118- 121, Hearing-May 18, 1983)

She, however, admitted being familiar with one Oscar Gomez, and that she was personally charged with subversion in the Office of the Provincial Commander, Philippine Constabulary, Digos, Davao del Sur, but said charge was dismissed without reaching the Court. She likewise stated that her son, Rogelio Arellano, was likewise charged for subversion filed in the Municipal Trial Court of Digos, Davao del Sur, but was likewise dismissed for lack of sufficient evidence to sustain his conviction. (TSN, pages 121-122, in relation to her cross-examination, Hearing-May 18, 1983)

To support accused's denial of the charge against him, Barangay Captain of Tiguman, Digos, Davao del Sur, Salvador qqqGalaraga was presented, who declared, he was not personally aware of any subversive activities of accused, being his neighbor and member of his barrio. On the contrary, he can personally attest to his good character and reputation, as a law abiding citizen of his barrio, being a carpenter and farmer thereat. (TSl pages 128-129, Hearing-May 18, 1983)

He however, admitted in cross-examination, that there were a lot of arrests made by the authorities in his barrio involving subversive activities but they were released and were not formally charged in Court because they publicly took their oath of allegiance with the government. (TSN, pages 133-134, in relation to page 136, Hearing-May 18, 1983)

Finally, to support accused's denial of the subject firearm, his wife, Urbana Burgos, was presented and who testified that the subject firearm was left in their house by Cesar Masamlok and one Pedipol on May 10, 1982. It was night time, when the two left the gun, alleging that it was not in order, and that they will leave it behind, temporarily for them to claim it later. They were the ones who buried it. She said, her husband, the accused, was not in their house at that time and that she did not inform him about said firearm neither did she report the matter to the authorities, for fear of the life of her husband. (TSN, page 24, November 22, 1983)

On cross-examination, she said, even if Masamlok during the recovery of the firearm, was wearing a mask, she can still Identify him. (TSN, page 6, Hearing-November 22, 1983)

After the above-testimony, accused through counsel formally rested his case in support of accused's through counsel manifestation for the demurrer to evidence of the prosecution, or in the alternative for violation merely of simple illegal possession of firearm, 'under the Revised Administrative Code, as amended by Republic Act No. 4, reflected in the manifestation of counsel for accused. (TSN, pages 113-114, Hearing-May 18, 1983)

Accused-appellant Ruben Burgos now raises the following assignments of error, to wit:

I THE TRIAL COURT ERRED IN HOLDING THAT (SIC) THE ARREST OF ACCUSED-APPELLANT WITHOUT VALID WARRANT TO BE LAWFUL.

II THE TRIAL COURT ERRED IN HOLDING THE SEARCH IN THE HOUSE OF ACCUSED-APPELLANT FOR FIREARM WITHOUT VALID WARRANT TO BE LAWFUL.

III THE TRIAL COURT ERRED IN HOLDING ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT FOR VIOLATION OF P.D. No. 9 IN RELATION TO GENERAL ORDERS NOS. 6 AND 7

Was the arrest of Ruben Burgos lawful? Were the search of his house and the subsequent confiscation of a firearm and documents allegedly found therein conducted in a lawful and valid manner? Does the evidence sustaining the crime charged meet the test of proving guilt beyond reasonable doubt?

The records of the case disclose that when the police authorities went to the house of Ruben Burgos for the purpose of arresting him upon information given by Cesar Masamlok that the accused allegedly recruited him to join the New People's Army (NPA), they did not have any warrant of arrest or search warrant with them (TSN, p. 25, October 14, 1982; and TSN, p. 61, November 15, 1982).

Article IV, Section 3 of the Constitution provides:

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 not be violated, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined by the judge, or such other responsible officer as may be authorized by law, after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched, and the persons or things to be seized.

The constitutional provision is a safeguard against wanton and unreasonable invasion of the privacy and liberty of a citizen as to his person, papers and effects. This Court explained in Villanueva vs. Querubin (48 SCRA 345) why this right is so important:

It is deference to one's personality that lies at the core of this right, but it could be also looked upon as a recognition of a constitutionally protected area, primarily one's home, but not necessarily thereto confined. (Cf. Hoffa v. United States, 385 US 293 [19661) What is sought to be guarded is a man's prerogative to choose who is allowed entry to his residence. In that haven of refuge, his individuality can assert itself not only in the choice of who shall be welcome but likewise in the kind of objects he wants around him. There the state, however powerful, does not as such have access except under the circumstances above noted, for in the traditional formulation, his house, however humble, is his castle. Thus is outlawed any unwarranted intrusion by government, which is called upon to refrain from any invasion of his dwelling and to respect the privacies of his life, (Cf. Schmerber v. California, 384 US 757 [1966], Brennan, J. and Boyd v. United States, 116 US 616, 630 [1886]). In the same vein, Landynski in his authoritative work (Search and Seizure and the Supreme Court [1966], could fitly characterize this constitutional right as the embodiment of a 'spiritual concept: the belief that to value the privacy of home and person and to afford its constitutional protection against the long reach of government is no legs than to value human dignity, and that his privacy must not be disturbed except in case of overriding social need, and then only under stringent procedural safeguards.' (Ibid, p. 47).

The trial court justified the arrest of the accused-appelant without any warrant as falling under one of the instances when arrests may be validly made without a warrant. Rule 113, Section 6 * of the Rules of Court, provides the exceptions as follows:

a) When the person to be arrested has committed, is actually committing, or is about to commit an offense in his presence;

b) When an offense has in fact been committed, and he has reasonable ground to believe that the person to be arrested has committed it;

c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending or has escaped while being transferred from one confinement to another.

The Court stated that even if there was no warrant for the arrest of Burgos, the fact that "the authorities received an urgent report of accused's involvement in subversive activities from a reliable source (report of Cesar Masamlok) the circumstances of his arrest, even without judicial warrant, is lawfully within the ambit of Section 6-A of Rule 113 of the Rules of Court and applicable jurisprudence on the matter."

If the arrest is valid, the consequent search and seizure of the firearm and the alleged subversive documents would become an incident to a lawful arrest as provided by Rule 126, Section 12, which states:

A person charged with an offense may be searched for dangerous weapons or anything which may be used as proof of the commission of the offense.

The conclusions reached by the trial court are erroneous.

Under Section 6(a) of Rule 113, the officer arresting a person who has just committed, is committing, or is about to commit an offense must have personal knowledge of that fact. The offense must also be committed in his presence or within his view. (Sayo v. Chief of Police, 80 Phil. 859).

There is no such personal knowledge in this case. Whatever knowledge was possessed by the arresting officers, it came in its entirety from the information furnished by Cesar Masamlok. The location of the firearm was given by the appellant's wife.

At the time of the appellant's arrest, he was not in actual possession of any firearm or subversive document. Neither was he committing any act which could be described as subversive. He was, in fact, plowing his field at the time of the arrest.

The right of a person to be secure against any unreasonable seizure of his body and any deprivation of his liberty is a most basic and fundamental one. The statute or rule which allows exceptions to the requirement of warrants of arrest is strictly construed. Any exception must clearly fall within the situations when securing a warrant would be absurd or is manifestly unnecessary as provided by the Rule. We cannot liberally construe the rule on arrests without warrant or extend its application beyond the cases specifically provided by law. To do so would infringe upon personal liberty and set back a basic right so often violated and so deserving of full protection.

The Solicitor General is of the persuasion that the arrest may still be considered lawful under Section 6(b) using the test of reasonableness. He submits that. the information given by Cesar Masamlok was sufficient to induce a reasonable ground that a crime has been committed and that the accused is probably guilty thereof.

In arrests without a warrant under Section 6(b), however, it is not enough that there is reasonable ground to believe that the person to be arrested has committed a crime. A crime must in fact or actually have been committed first. That a crime has actually been committed is an essential precondition. It is not enough to suspect that a crime may have been committed. The fact of the commission of the offense must be undisputed. The test of reasonable ground applies only to the identity of the perpetrator.

In this case, the accused was arrested on the sole basis of Masamlok's verbal report. Masamlok led the authorities to suspect that the accused had committed a crime. They were still fishing for evidence of a crime not yet ascertained. The subsequent recovery of the subject firearm on the basis of information from the lips of a frightened wife cannot make the arrest lawful, If an arrest without warrant is unlawful at the moment it is made, generally nothing that happened or is discovered afterwards can make it lawful. The fruit of a poisoned tree is necessarily also tainted.

More important, we find no compelling reason for the haste with which the arresting officers sought to arrest the accused. We fail to see why they failed to first go through the process of obtaining a warrant of arrest, if indeed they had reasonable ground to believe that the accused had truly committed a crime. There is no showing that there was a real apprehension that the accused was on the verge of flight or escape. Likewise, there is no showing that the whereabouts of the accused were unknown,

The basis for the action taken by the arresting officer was the verbal report made by Masamlok who was not required to subscribe his allegations under oath. There was no compulsion for him to state truthfully his charges under pain of criminal prosecution. (TSN, p. 24, October 14, 1982). Consequently, the need to go through the process of securing a search warrant and a warrant of arrest becomes even more clear. The arrest of the accused while he was plowing his field is illegal. The arrest being unlawful, the search and seizure which transpired afterwards could not likewise be deemed legal as being mere incidents to a valid arrest.

Neither can it be presumed that there was a waiver, or that consent was given by the accused to be searched simply because he failed to object. To constitute a waiver, it must appear first that the right exists; secondly, that the person involved had knowledge, actual or constructive, of the existence of such a right; and lastly, that said person had an actual intention to relinquish the right (Pasion Vda. de Garcia v. Locsin, 65 Phil. 689). The fact that the accused failed to object to the entry into his house does not amount to a permission to make a search therein (Magoncia v. Palacio, 80 Phil. 770). As pointed out by Justice Laurel in the case of Pasion Vda. de Garcia V. Locsin (supra)

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. . . As the constitutional guaranty is not dependent upon any affirmative act of the citizen, the courts do not place the citizen in the position of either contesting an officer's authority by force, or waiving his constitutional rights; but instead they hold that a peaceful submission to a search or seizure is not a consent or an invitation thereto, but is merely a demonstration of regard for the supremacy of the law. (56 C.J., pp. 1180, 1181).

We apply the rule that: "courts indulge every reasonable presumption against waiver of fundamental constitutional rights and that we do not presume acquiescence in the loss of fundamental rights." (Johnson v. Zerbst 304 U.S. 458).

That the accused-appellant was not apprised of any of his constitutional rights at the time of his arrest is evident from the records:

A CALAMBA:

Q When you went to the area to arrest Ruben Burgos, you were not armed with an arrest warrant?

A None Sir.

Q Neither were you armed with a search warrant?

A No Sir.

Q As a matter of fact, Burgos was not present in his house when you went there?

A But he was twenty meters away from his house.

Q Ruben Burgos was then plowing his field?

A Yes Sir.

Q When you called for Ruben Burgos you interviewed him?

A Yes Sir.

Q And that you told him that Masamlok implicated him?

A No Sir.

Q What did you tell him?

A That we received information that you have a firearm, you surrender that firearm, first he denied but when Sgt. Buncalan interviewed his wife, his wife told him that it is buried, I dug the firearm which was wrapped with a cellophane.

Q In your interview of Burgos you did not remind him of his rights under the constitution considering that he was purposely under arrest?

A I did not.

Q As a matter of fact, he denied that he has ever a gun?

A Yes Sir.

Q As a matter of fact, the gun was not in his possession?

A It was buried down in his horse.

Q As a matter of fact, Burgos did not point to where it was buried?

A Yes Sir.

(TSN, pp. 25-26, Hearing-October 14, 1982)

Considering that the questioned firearm and the alleged subversive documents were obtained in violation of the accused's constitutional rights against unreasonable searches and seizures, it follows that they are inadmissible as evidence.

There is another aspect of this case.

In proving ownership of the questioned firearm and alleged subversive documents, the prosecution presented the two arresting officers who testified that the accused readily admitted ownership of the gun after qqqs wife pointed to the place where it was buried. The officers stated that it was the accused himself who voluntarily pointed to the place where the alleged subversive documents were hidden.

Assuming this to be true, it should be recalled that the accused was never informed of his constitutional rights at the time of his arrest. So that when the accused allegedly admitted ownership of the gun and pointed to the location of the subversive documents after questioning, the admissions were obtained in violation of the constitutional right against self-incrimination under Sec. 20 of Art. IV of the Bill of Rights winch provides:

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.. . .

The Constitution itself mandates that any evidence obtained in violation of this right is inadmissible in evidence. Consequently, the testimonies of the arresting officers as to the admissions made by the appellant cannot be used against him.

The trial court validly rejected the extra-judicial confession of the accused as inadmissible in evidence. The court stated that the appellant's having been exhaustively subjected to physical terror, violence, and third degree measures may not have been supported by reliable evidence but the failure to present the investigator who conducted the investigation gives rise

to the "provocative presumption" that indeed torture and physical violence may have been committed as stated.

The accused-appellant was not accorded his constitutional right to be assisted by counsel during the custodial interrogation. The lower court correctly pointed out that the securing of counsel, Atty. Anyog, to help the accused when he subscribed under oath to his statement at the Fiscal's Office was too late. It could have no palliative effect. It cannot cure the absence of counsel at the time of the custodial investigation when the extrajudicial statement was being taken.

With the extra-judicial confession, the firearm, and the alleged subversive documents inadmissible in evidence against the accused-appellant, the only remaining proof to sustain the charge of Illegal Possession of Firearm in Furtherance of Subversion is the testimony of Cesar Masamlok.

We find the testimony of Masamlok inadequate to convict Burgos beyond reasonable doubt. It is true that the trial court found Masamlok's testimony credible and convincing. However, we are not necessarily bound by the credibility which the trial court attaches to a particular witness. As stated in People vs.. Cabrera (100 SCRA 424):

xxx xxx xxx

. . .Time and again we have stated that when it comes to question of credibility the findings of the trial court are entitled to great respect upon appeal for the obvious reason th+at it was able to observe the demeanor, actuations and deportment of the witnesses during the trial. But we have also said that this rule is not absolute for otherwise there would be no reversals of convictions upon appeal. We must reject the findings of the trial court where the record discloses circumstances of weight and substance which were not properly appreciated by the trial court.

The situation under which Cesar Masamlok testified is analogous to that found in People vs. Capadocia (17 SCRA 98 1):

. . . The case against appellant is built on Ternura's testimony, and the issue hinges on how much credence can be accorded to him. The first consideration is that said testimony stands uncorroborated. Ternura was the only witness who testified on the mimeographing incident. . . .

xxx xxx xxx

. . .He was a confessed Huk under detention at the time. He knew his fate depended upon how much he cooperated with the authorities, who were then engaged in a vigorous anti-dissident campaign. As in the case of Rodrigo de Jesus, whose testimony We discounted for

the same reason, that of Ternura cannot be considered as proceeding from a totally unbiased source. . . .

In the instant case, Masamlok's testimony was totally uncorroborated. Considering that Masamlok surrendered to the military certainly his fate depended on how eagerly he cooperated with the authorities. Otherwise, he would also be charged with subversion. The trade-off appears to be his membership in the Civil Home Defense Force. (TSN, p. 83, January 4, 1983). Masamlok may be considered as an interested witness. It can not be said that his testimony is free from the opportunity and temptation to be exaggerated and even fabricated for it was intended to secure his freedom.

Despite the fact that there were other persons present during the alleged NPA seminar of April 19, 1982 i.e., Masamlok's father ,Matuguil Masamlok, Isabel Ilan and Ayok Ides (TSN, p. 74, January 4, 1983) who could have corroborated Cesar Masamlok's testimony that the accused used the gun in furtherance of subversive activities or actually engaged in subversive acts, the prosecution never presented any other witness.

This Court is, therefore, constrained to rule that the evidence presented by the prosecution is insufficient to prove the guilt of the accused beyond reasonable doubt.

As held in the case of People vs. Baia (34 SCRA 347):

It is evident that once again, reliance can be placed on People v. Dramayo (42 SCRA 59), where after stressing that accusation is not, according to the fundamental law, synonymous with guilt, it was made clear: 'Only if the judge below and the appellate tribunal could arrive at a conclusion that the crime had been committed precisely by the person on trial under such an exacting test should the sentence be one of conviction. It is thus required that every circumstance favoring his innocence be duly taken into account. The proof against him must survive the test of reason; the strongest suspicion must not be permitted to sway judgment. The conscience must be satisfied that on the defendant could be laid the responsibility for the offense charged; that not only did he perpetrate the act but that it amounted to a crime. What is required then is moral certainty.' (Ibid, 64. Cf. People v. Alvarez, 55 SCRA 81; People v. Joven, 64 SCRA 126; People vs. Ramirez, 69 SCRA 144; People vs. Godov 72 SCRA 69; People v. Lopez, 74 SCRA 205; People v. Poblador, 76 SCRA 634; People v. Quiazon, 78 SCRA 513; People v. Nazareno, 80 SCRA 484; People vs. Gabilan 115 SCRA 1; People v. Gabiana, 117 SCRA 260; and People vs. Ibanga 124 SCRA 697).

We are aware of the serious problems faced by the military in Davao del Sur where there appears to be a well-organized plan to overthrow the Government through armed struggle and replace it with an alien system based on a foreign ideology. The open defiance against duly constituted authorities has resulted in unfortunate levels of violence and human suffering publicized all over the country and abroad. Even as we reiterate the need for all freedom

loving citizens to assist the military authorities in their legitimate efforts to maintain peace and national security, we must also remember the dictum in Morales vs. Enrile (1 21 SCRA 538, 569) when this Court stated:

While the government should continue to repel the communists, the subversives, the rebels, and the lawless with an the means at its command, it should always be remembered that whatever action is taken must always be within the framework of our Constitution and our laws.

Violations of human rights do not help in overcoming a rebellion. A cavalier attitude towards constitutional liberties and protections will only fan the increase of subversive activities instead of containing and suppressing them.

WHEREFORE, the judgment of conviction rendered by the trial court is REVERSED and SET ASIDE. The accused-appellant is hereby ACQUITTED, on grounds of reasonable doubt, of the crime with which he has been charged.

The subject firearm involved in this case (homemade revolver, caliber .38, Smith and Wesson, with Serial No. 8.69221) and the alleged subversive documents are ordered disposed of in accordance with law.

Cost de oficio.

SO ORDERED.