Property Cases:

1. Ramos vs. Director of Lands (GR L-13298 Nov. 19, 1918)2. Ramirez vs. Director of Lands (GR 117247 April 12, 1996)3. Republic vs. Hon. Vera (GR L-35778 Jan 27, 1983)4. Republic vs. IAC (GR 71176 May 21, 1990)5. People vs. Torres (GR 170837 Sept. 12, 2006)6. People vs. Tira (GR 139615 May 28, 2004)7. Abuan vs. People (GR 168773 Oct. 27 2006)

Republic of the PhilippinesSUPREME COURT

Manila

SECOND DIVISION

G.R. No. L-35778 January 27, 1983

REPUBLIC OF THE PHILIPPINES, and THE DIRECTOR OF LANDS, petitioners, vs.HON. ABRAHAM P. VERA, Judge, CFI, Bataan, Branch I, and LUISITO MARTINEZ, respondents.

G.R. No. L-35779 January 27, l983

REPUBLIC OF THE PHILIPPINES, and THE DIRECTOR OF LANDS, petitioners, vs.HON. ABRAHAM P. VERA, judge, CFI, Bataan, Branch I, and THELMA TANALEGA, respondents.

The Solicitor General for petitioners.

Benjamin M. Reyes for private respondent.

DE CASTRO, J.:

The two (2) above-entitled petitions for review on certiorari of the decisions dated October 9, 1972 and October 16, 1972 issued by the CFI of Bataan, Branch I, in LRC No. N-210, and in LRC No. N-206, respectively, involve a common issue. For convenience, they are hereby decided jointly.

G.R. No. L-35778:

On May 4, 1972, respondent Luisito Martinez filed with the lower court an application for registration of title under Act 496 of one (1) parcel of land, situated in the Municipality of Mariveles, Bataan, containing an area of 323,093 square meters, more or less.

On July 7, 1972 the lower court issued an order of general default except as to the Republic of the Philippines and the Province of Bataan.

On July 24, 1972, the Republic of the Philippines filed with the lower court an opposition to the application stating that the parcel of land applied for is a portion of the public domain belonging to the Republic, not subject to private appropriation.

On September 16, 1972, the lower court issued an order reading:

Considering the testimony of the Provincial Forester Leonides B. Rodriguez during the hearing of August 8, 1972 that this land, subject matter of this application, was a subject of cadastral proceeding and that this land was assigned as Lot No. 626 (Tsn, August 3, 1972, page 41), this case is ordered re-opened and the Land Registration Commissioner is directed to submit his report and/or comment as to whether this lot is covered by the Mariveles Cadastre within five (5) days from receipt hereof.

xxx xxx xxx

On October 5, 1972, the Commissioner of Land Registration submitted to the lower court a report stating.

That the parcel of land applied for registration in the above-entitled case is entirely inside Lot No. 626 of the Cadastral Survey of Mariveles, Province of Bataan, Cad. Case no. 19, LTC Cad. Record No. 1097.

xxx xxx xxx

Records show that in the hearing of this case in the lower court, applicant Luisito Martinez, 62 years old, testified that he is the owner of the land applied for, having inherited the same from his parents, consisting of 32 hectares, more or less; that he started possessing the land in 1938; that about 8 hectares of the land is planted to palay, and there are about 42 mango trees; that kamoteng kahoy is also planted thereon; that he declared the land for taxation purposes only in 1969 because all the records were lost during the war, and that possession was continuous, open, undisturbed and in the concept of owner.

Another witness, Antonio Reyes, 67 years old, testified that he is the overseer of Luisito Martinez; that the area of his land is 32 hectares, more or less; that since 1938, applicant has possessed this land; that eight (8) hectares of land is devoted to palay, and his son Manuel Reyes and Silvestre Garcia are the ones tilling the land, and the harvest is shared alike between applicant, on one hand, and Manuel Reyes and Silvestre Garcia, on the other; that eighteen (18) hectares, more or less, is planted to vegetables.

While another witness, Silvestre Garcia, 60 years old, testified that he worked on the land of the applicant since 1932 which is 32 hectares, more or less; that said Luisito Martinez inherited the land from his parents; that he plants palay only on four (4) hectares; that there are 42 mango trees on the land,

G.R. No. L-35779:

On March 21, 1972, respondent Thelma Tanalega filed an application for registration under Act No. 496 in the Court of First Instance of Bataan, docketed as Land Registration Case No.

N-206, L.R.C. Rec. No. N-41884, of two (2) parcels of land located in the barrio of Camaya, municipality of Mariveles, province of Bataan, containing an area of 443,297 square meters, more or less, and 378,506 square meters, more or less, respectively, and more particularly described and Identified as portions of Lot 626, Mariveles Cadastre, covered by Plans (LRC) SWO-13430 and (LRC) SWO-13431, respectively.

On March 21, 1972, the corresponding notice of initial hearing was duly issued by the Commissioner of Land Registration.

On March 21, 1972, the lower court ordered the Bureau of Lands to submit a report within ten (10) days if the land subject of the application has been issued patents or is the subject of any pending application for the issuance of patents. Likewise, the lower court directed the Commissioner of Land Registration to submit within the same period his report if the land applied for has been issued a title or is the subject of a pending decree.

On May 23, 1972, the Chief Surveyor of the Land Registration Commission filed a report in the lower court, stating that the parcels of land applied for registration "do not appear to have been passed upon and approved by the Director of Lands as required by Section 1858 of the Revised Administrative Code." Later, on July 24, 1972, the Chief Surveyor of the Land Registration Commission filed in the lower court another report or manifestation stating "that Plans (LRC) SWO-13430 and 13431, LRC Case No. N-206, LRC Record No. N-41884, when plotted on the Municipal Index Map on file in the Commission does not appear to overlap with any previously titled property under Act 496; that the plan and records of said Land Registration application will be subjected to further examination as soon as the decision to be rendered by this Honorable Court is received in this Commission to determine whether or not a patent or title has in the meantime been issued in order to avoid duplication or overlapping of titles."

At the hearing on June 21, 1972, on motion of the applicant's counsel, the lower court issued an Order of General Default against all persons, with the exception of the Director of Lands and the Director of Forestry, represented by the Office of the provincial fiscal, and the oppositor Eliseo Martinez represented by Atty. Angelino Banzon, who were directed to file their respective oppositions,

On July 7, 1972, the provincial fiscal filed his opposition in behalf of the Directors of Lands and of Forestry, alleging that the parcels of land applied for are portions of the public domain belonging to the Republic of the Philippines, not subject to private appropriation.

Thereafter, the case was tried. The applicant, Thelma Tanalega (respondent herein), testified in her behalf, and presented two (2) witnesses, namely, Miguel Ocampo, 57 years old, and Agapito del Rosario, 50 years old, as well as her documentary evidence in support of her application for registration. On the other hand,. Fiscal Arsenio Roman appeared for the government, and submitted documentary proof in support of the opposition filed by the provincial fiscal's office in this case.

At the hearing of this case in the lower court, applicant Thelma Tanalega, 27 years old, testified that she had possessed the land "openly, adversely, notoriously and in the concept

of owner since February 2, 1970 when the said land was sold to her by Elisa Llamas who allegedly possessed this land" in the same manner since 1935; that the applicant had paid for the taxes of the land for the years 1970-1972.

Another witness, Miguel Ocampo, 57 years old, testified that his parents were the ones working on the land before 1935 and due to the illness of his parents, on their request to owner Elisa Llamas, he became overseer up to 1970 when the same was sold to applicant; that 16 hectares of these lands were planted to palay while others were devoted to pasture land and planting vegetables.

Witness Agapito del Rosario, 50 years old, who testified that since childhood, he had known Elisa Llamas to be the owner of the land applied for; that she was the one managing the planting and improving of the land; that he used to see Leopoldo de Guzman and another one also named Agapito del Rosario worked on the 16 hectares portion of the land; that Elisa Llamas informed him that in 1970 she sold the land to Thelma Tanalega.

At the hearing on August 24, 1972, Fiscal Arsenio Guzman who is appearing for the government, submitted a certification dated July 3, 1972 of Leonides B. Rodriguez, District Forester of Balanga, Bataan (Exhibit 3) which states "that the tract of land situated at Barrio Camaya, Mariveles, Bataan containing an approximate area of EIGHTY TWO HECTARES more or less, as shown and described in the attached photostat copy of Plans in two sheets, as surveyed for Thelma Tanalega, et al., was found to be within the Alienable and Disposable Block, Project 4-B, Mariveles, Bataan, certified by the Director of Forestry as such on February 16, 1972."

The applicant did not present as witness her predecessor-in-interest, Elisa Llamas, to testify on the alleged possession of the land. The applicant also failed to present Guillermo Ramirez, who was hired by her as overseer and her alleged tenants. Not a single tenant was presented as witness to prove that the applicant had possessed the land as owners.

In both cases, the Court of First Instance of Bataan in two separate decisions, dated October 9, 1972 and October 16, 1972, confirmed the titles to subject parcels of land and adjudicated them in favor of applicants Luisito Martinez and Thelma Tanalega, now respondents herein.

In the instant petitions for review the Republic of the Philippines, through the Solicitor General, argued that Lot 626, Mariveles Cadastre was declared public land by the decision of the Cadastral Court dated October 11, 1937 and such being the case, the lower court is without jurisdiction over the subject matter of the application for voluntary registration under Act 496. Petitioner likewise stressed that the lands in question can no longer be subject to registration by voluntary proceedings, for they have already been subjected to compulsory registration proceedings under the Cadastral Act.

The petitions are meritorious and reversal of the questioned decisions is in order.

It is noteworthy that as per the report of the Commissioner of Land Registration, 1 the land subject matter of the instant proceedings "is entirely inside Lot No. 626 of the Cadastral Survey of Mariveles, Province of Bataan, Cad. Case No. 19, LRC Cad. Record No. 1097";

that some portions of Lot No. 626 were decreed and titles were issued therefor; and that "portion declared Public Land as per decision dated October 11, 1937."

In a cadastral proceedings any person claiming any interest in any part of the lands object of the petition is required by Section 9 of Act No. 2259 to file an answer on or before the return day or within such further time as may be allowed by the court, giving the details required by law, such as: (1) Age of the claimant; (2) Cadastral number of lot or lots claimed, or the block and lot numbers, as the case may be; (3) Name of the barrio and municipality, township or settlement in which the lots are situated; (4) Names of the owners of adjoining lots; (5) If claimant is in possession of the lots claims and can show no express grant of the land by the Government to him or to his predecessors-in-interest, the answer need state the length of time property was held in possession and the manner it was acquired, giving the length of time, as far as known, during which his predecessors, if any, held possession; (6) If claimant is not in possession or occupation of the land, the answer shall set forth the interest claimed by him and the time and manner of its acquisition; (7) If the lots have been assessed for taxation, their last assessed value; and (8) Encumbrance, if any, affecting the lots and the names of adverse claimants as far as known. In the absence of successful claimants, the property is declared public land.

In the instant cases, private respondents apparently either did not file their answers in the aforesaid cadastral proceedings or failed to substantiate their claims over the portions they were then occupying, otherwise, titles over the portions subject of their respective claims would have been issued to them. The Cadastral Court must have declared the lands in question public lands, and its decision had already become final and conclusive.

Respondents are now barred by prior judgment to assert their rights over the subject land, under the doctrine of res judicata. A cadastral proceeding is one in rem and binds the whole world. Under this doctrine, parties are precluded from re-litigating the same issues already determined by final judgment. 2

Even granting that respondents can still petition for judicial confirmation of imperfect title over the lands subject matter of the instant cases, the same must necessarily fail. It is to be noted that in the instant cases evidence for the respondents themselves tend to show that only portions of the entire area applied for are cultivated. A mere casual cultivation of portions of the land by the claimant does not constitute possession under claim of ownership. In that sense, possession is not exclusive and notorious so as to give rise to a presumptive grant from the State. The possession of public land however long the period thereof may have extended, never confers title thereto upon the possessor because the statute of limitations with regard to public land does not operate against the State, unless the occupant can prove possession and occupation of the same under claim of ownership for the required number of years to constitute a grant from the State. 3 Applicants, therefore, have failed to submit convincing proof actual, peaceful and adverse possession in the concept of owners of the entire area in question during the period required by law.

Apart from the foregoing, the survey plans submitted by petitioners were not approved by the Director of Lands but by the Land Registration Commission. The Land Registration Commission has no authority to approve original survey plans in this particular case. Section 34-A of R.A. No. 6389 relied upon by respondents applies only to lands subject of tenancy

relation which are expropriated and sub-divided in favor of new amortizing-owner-beneficiaries. The submission of the plan is a statutory requirement of mandatory character and unless the plan and its technical description are duly approved by the Director of Lands, the same are not of much value. 4

WHEREFORE, the decisions dated October 9,1972 and October 16, 1972 of the Court of First Instance of Bataan, Branch I should be, as they are hereby reversed. Without pronouncement as to costs.

SO ORDERED.

Makasiar, Aquino, Concepcion, Jr., Guerrero and Escolin JJ., concur.

Abad Santos, J., concurs in the result.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-13298 November 19, 1918

CORNELIO RAMOS, petitioner-appellant, vs.THE DIRECTOR OF LANDS, objector-appellee.

Basilio Aromin for appellant.Office of the Solicitor-General Paredes for appellee.

MALCOLM, J.:

This is an appeal by the applicant and appellant from a judgment of the Court of First Instance of Nueva Ecija, denying the registration of the larger portion of parcel No. 1 (Exhibit A of the petitioner), marked by the letters A, B, and C on the plan, Exhibit 1, of the Government.

One Restituto Romero y Ponce apparently gained possession of a considerable tract of land located in the municipality of San Jose, Province of Nueva Ecija, in the year 1882. He took advantage of the Royal Decree of February 13, 1894, to obtain a possessory information title to the land, registered as such on February 8, 1896. Parcel No. 1, included within the limits of the possessory information title of Restituto Romero, was sold in February, 1907, to Cornelio Ramos, the instant petitioner, and his wife Ambrosia Salamanca.

Ramos instituted appropriate proceedings to have his title registered. Opposition was entered by the Director of Lands on the ground that Ramos had not acquired a good title from the Spanish government and by the Director of Forestry on the ground that the first parcel was forest land. The trial court agreed with the objectors and excluded parcel No. 1 from registration. So much for the facts.

As to the law, the principal argument of the Solicitor-General is based on the provisions of the Spanish Mortgage Law and of the Royal Decree of February 13, 1894, commonly known as the Maura Law. The Solicitor-General would emphasize that for land to come under the protective ægis of the Maura Law, it must have been shown that the land was cultivated for six years previously, and that it was not land which pertained to the "zonas forestales." As proof that the land was, even as long ago as the years 1894 to 1896, forestal and not agricultural in nature is the fact that there are yet found thereon trees from 50 to 80 years of age.

We do not stop to decide this contention, although it might be possible, following the doctrine laid down by the United States Supreme Court with reference to Mexican and Spanish grantes within the United States, where some recital is claimed to be false, to say that the possessory information, apparently having taken cognizance of the requisites for title, should not now be disturbed. (Hancock vs. McKinney [1851], 7 Tex., 192; Hornsby and Roland vs. United States [1869], 10 Wall., 224.) It is sufficient, as will later appear, merely to notice that the predecessor in interest to the petitioner at least held this tract of land under color of title.

Subsection 6 of section 54, of Act No. 926, entitled The Public Land Law, as amended by Act No. 1908, reads as follows:

6. All persons who by themselves or their predecessors and interest have been in the open, continuous, exclusive, and notorious possession and occupation of agricultural public lands, as defined by said Act of Congress of July first, nineteen hundred and two, under a bona fide claim of ownership except as against the Government, for a period of ten years next preceding the twenty-sixth day of July, nineteen hundred and four, except when prevented by war or force majeure, shall be conclusively presumed to have performed all the conditions essential to a

government grant and to have received the same, and shall be entitled to a certificate of title to such land under the provisions of this chapter.

There are two parts to the above quoted subsection which must be discussed. The first relates to the open, continuous, exclusive, and notorious possession and occupation of what, for present purposes, can be conceded to be agricultural public land, under a bona fide claim of ownership.

Actual possession of land consists in the manifestation of acts of dominion over it of such a nature as a party would naturally exercise over his own property. Relative to actuality of possession, it is admitted that the petitioner has cultivated only about one fourth of the entire tract. This is graphically portrayed by Exhibit 1 of the Government, following:

The question at once arises: Is that actual occupancy of a part of the land described in the instrument giving color of title sufficient to give title to the entire tract of land?lawphil.net

The doctrine of constructive possession indicates the answer. The general rule is that the possession and cultivation of a portion of a tract under claim of ownership of all is a

constructive possession of all, if the remainder is not in the adverse possession of another. (Barr vs. Gratz's Heirs [1819], 4 Wheat., 213; Ellicott vs. Pearl [1836], 10 Pet., 412; Smith vs. Gale [1892], 144 U. S., 509.) Of course, there are a number of qualifications to the rule, one particularly relating to the size of the tract in controversy with reference to the portion actually in possession of the claimant. It is here only necessary to apply the general rule.

The claimant has color of title; he acted in good faith; and he has had open, peaceable, and notorious possession of a portion of the property, sufficient to apprise the community and the world that the land was for his enjoyment. (See arts. 446, 448, Civil Code.) Possession in the eyes of the law does not mean that a man has to have his feet on every square meter of ground before it can be said that he is in possession. Ramos and his predecessor in interest fulfilled the requirements of the law on the supposition that he premises consisted of agricultural public land.

The second division of the law requires consideration of the term "agricultural public land." The law affirms that the phrase is denied by the Act of Congress of July 1st, 1902, known as the Philippine bill. Turning to the Philippine Bill, we find in sections 13 to 18 thereof that three classes of land are mentioned. The first is variously denominated "public land" or "public domain," the second "mineral land," and the third "timber land." Section 18 of the Act of Congress comes nearest to a precise definition, when it makes the determination of whether the land is more valuable for agricultural or for forest uses the test of its character.

Although these sections of the Philippine Bill have come before the courts on numerous occasions, what was said in the case of Jones vs. Insular Government ([1906], 6 Phil., 122), is still true, namely: "The meaning of these sections is not clear and it is difficult to give to them a construction that will be entirely free from objection." In the case which gave most serious consideration to the subject (Mapa vs. Insular Government [1908], 10 Phil., 175), it was found that there does exist in the Act of Congress a definition of the phrase "agricultural public lands." It was said that the phrase "agricultural public lands" as used in Act No. 926 means "those public lands acquired from Spain which are not timber or mineral lands."

The idea would appear to be to determine, by exclusion, if the land is forestal or mineral in nature and, if not so found, to consider it to be agricultural land. Here, again, Philippine law is not very helpful. For instance, section 1820 of the Administrative Code of 1917 provides: "For the purposes of this chapter, 'public forest' includes, except as otherwise specially indicated, all unreserved public land, including nipa and mangrove swamps, and all forest reserves of whatever character." This definition of "public forest," it will be noted, is merely "for the purposes of this chapter." A little further on, section 1827 provides: "Lands in public forests, not including forest reserves, upon the certification of the Director of Forestry that said lands are better adapted and more valuable for agricultural than for forest purposes and not required by the public interests to be kept under forest, shall be declared by the Department Head to be agricultural lands." With reference to the last section, there is no certification of the Director of Forestry in the record, as to whether this land is better adapted and more valuable for agricultural than for forest purposes.

The lexicographers define "forest" as "a large tract of land covered with a natural growth of trees and underbrush; a large wood." The authorities say that he word "forest" has a significant, not an insignificant meaning, and that it does not embrace land only partly

woodland. It is a tract of land covered with trees, usually of considerable extent. (Higgins vs. Long Island R. Co. [1908], 114 N. Y. Supp., 262; People vs. Long Island R. Co. [1908], 110 N. Y. Supp., 512.)

The foresters say that no legal definition of "forest" is practicable or useful. B. H. Baden-Powell, in his work on Forest Law of India, states as follows:

Every definition of a forest that can be framed for legal purposes will be found either to exclude some cases to which the law ought to apply, or on the other hand, to include some with which the law ought not to interfere. It may be necessary, for example, to take under the law a tract of perfectly barren land which at present has neither trees, brushwood, nor grass on it, but which in the course f time it is hoped will be "reboise;" but any definition wide enough to take in all such lands, would also take in much that was not wanted. On the other hand, the definition, if framed with reference to tree-growth, might (and indeed would be almost sure to) include a garden, shrubbery, orchard, or vineyard, which it was not designed to deal with.

B. E. Fernow, in his work on the Economics of Forestry, states as follows:

A forest in the sense in which we use the term, as an economic factor, is by no means a mere collection of trees, but an organic whole in which all parts, although apparently heterogeneous, jumbled together by accident as it were and apparently unrelated, bear a close relation to each other and are as interdependent as any other beings and conditions in nature.

The Director of Forestry of the Philippine Islands has said:

During the time of the passage of the Act of Congress of July 1, 1902, this question of forest and agricultural lands was beginning to receive some attention and it is clearly shown in section 18 of the above mentioned Act; it leaves to the Bureau of Forestry the certification as to what lands are for agricultural or forest uses. Although the Act states timber lands, the Bureau has in its administration since the passage of this act construed this term to mean forest lands in the sense of what was necessary to protect, for the public good; waste lands without a tree have been declared more suitable for forestry in many instances in the past. The term 'timber' as used in England and in the United States in the past has been applied to wood suitable for construction purposes but with the increase in civilization and the application of new methods every plant producing wood has some useful purpose and the term timber lands is generally though of as synonymous with forest lands or lands producing wood, or able to produce wood, if agricultural crops on the same land will not bring the financial return that timber will or if the same land is needed for protection purposes.

x x x x x x x x x

The laws in the United States recognize the necessity of technical advice of duly appointed boards and leave it in the hands of these boards to decide what lands are more valuable for forestry purposes or for agricultural purposes.

In the Philippine Islands this policy is follows to as great an extent as allowable under the law. In many cases, in the opinion of the Bureau of Forestry, lands without a single tree on them are considered as true forest land. For instance, mountain sides which are too steep for cultivation under ordinary practice and which, if cultivated, under ordinary practice would destroy the big natural resource of the soil, by washing, is considered by this bureau as forest land and in time would be reforested. Of course, examples exist in the Mountain Province where steep hillsides have been terraced and intensive cultivation practiced but even then the mountain people are very careful not to destroy forests or other vegetative cover which they from experience have found protect their water supply. Certain chiefs have lodged protests with the Government against other tribes on the opposite side of the mountain cultivated by them, in order to prevent other tribes from cutting timber or destroy cover guarding their source of water for irrigation.

Dr. M. S. Shaler, formerly Dean of the Lawrence Scientific School, remarked that if mankind could not devise and enforce ways dealing with the earth, which will preserve this source of like "we must look forward to the time, remote it may be, yet equally discernible, when out kin having wasted its great inheritance will fade from the earth because of the ruin it has accomplished."

The method employed by the bureau of Forestry in making inspection of lands, in order to determine whether they are more adapted for agricultural or forest purposes by a technical and duly trained personnel on the different phases of the conservation of natural resources, is based upon a previously prepared set of questions in which the different characters of the land under inspection are discussed, namely:

Slope of land: Level; moderate; steep; very steep.

Exposure: North; South; East; West.

Soil: Clay; sandy loam; sand; rocky; very rocky.

Character of soil cover: Cultivated, grass land, brush land, brush land and timber mixed, dense forest.

If cultivated, state crops being grown and approximate number of hectares under cultivation. (Indicate on sketch.)

For growth of what agricultural products is this land suitable?

State what portion of the tract is wooded, name of important timber species and estimate of stand in cubic meters per hectare, diameter and percentage of each species.

If the land is covered with timber, state whether there is public land suitable for agriculture in vicinity, which is not covered with timber.

Is this land more valuable for agricultural than for forest purposes? (State reasons in full.)

Is this land included or adjoining any proposed or established forest reserve or communal forest? Description and ownership of improvements.

If the land is claimed under private ownership, give the name of the claimant, his place of residence, and state briefly (if necessary on a separate sheet) the grounds upon which he bases his claim.

When the inspection is made on a parcel of public land which has been applied for, the corresponding certificate is forwarded to the Director of Lands; if it is made on a privately claimed parcel for which the issuance of a title is requested from the Court of Land Registration, and the inspection shows the land to be more adapted for forest purposes, then the Director of Forestry requests the Attorney-General to file an opposition, sending him all data collected during the inspection and offering him the forest officer as a witness.

It should be kept in mind that the lack of personnel of this Bureau, the limited time intervening between the notice for the trial on an expediente of land and the day of the trial, and the difficulties in communications as well as the distance of the land in question greatly hinder the handling of this work.

In the case of lands claimed as private property, the Director of Forestry, by means of his delegate the examining officer, submits before the court all evidence referring to the present forest condition of the land, so that the court may compare them with the alleged right by the claimant. Undoubtedly, when the claimant presents a title issued by the proper authority or evidence of his right to the land showing that he complied with the requirements of the law, the forest certificate does not affect him in the least as such land should not be considered as a part of the public domain; but when the alleged right is merely that of possession, then the public or private character of the parcel is open to discussion and this character should be established not simply on the alleged right of the claimant but on the sylvical condition and soil characteristics of the land, and by comparison between this area, or different previously occupied areas, and those areas which still preserve their primitive character.

Either way we look at this question we encounter difficulty. Indubitably, there should be conservation of the natural resources of the Philippines. The prodigality of the spendthrift who squanders his substance for the pleasure of the fleeting moment must be restrained for

the less spectacular but surer policy which protects Nature's wealth for future generations. Such is the wise stand of our Government as represented by the Director of Forestry who, with the Forester for the Government of the United States, believes in "the control of nature's powers by man for his own good." On the other hand, the presumption should be, in lieu of contrary proof, that land is agricultural in nature. One very apparent reason is that it is for the good of the Philippine Islands to have the large public domain come under private ownership. Such is the natural attitude of the sagacious citizen.

If in this instance, we give judicial sanction to a private claim, let it be noted that the Government, in the long run of cases, has its remedy. Forest reserves of public land can be established as provided by law. When the claim of the citizen and the claim of the Government as to a particular piece of property collide, if the Government desires to demonstrate that the land is in reality a forest, the Director of Forestry should submit to the court convincing proof that the land is not more valuable for agricultural than for forest purposes. Great consideration, it may be stated, should, and undoubtedly will be, paid by the courts to the opinion of the technical expert who speaks with authority on forestry matters. But a mere formal opposition on the part of the Attorney-General for the Director of Forestry, unsupported by satisfactory evidence will not stop the courts from giving title to the claimant.

We hold that the petitioner and appellant has proved a title to the entire tract of land for which he asked registration, under the provisions of subsection 6, of section 54, of Act No. 926, as amended by Act No. 1908, with reference to the Philippine Bill and the Royal Decree of February 13, 1894, and his possessory information.

Judgment is reversed and the lower court shall register in the name of the applicant the entire tract in parcel No. 1, as described in plan Exhibit A, without special finding as to costs. So ordered.

Arellano, C.J., Torres, Johnson, Street and Fisher, JJ., concur.

Republic of the PhilippinesSUPREME COURT

ManilaTHIRD DIVISION

[G.R. No. 117247. April 12, 1996]

MANUEL I. RAMIREZ, petitioner, vs. COURT OF APPEALS and ESMERALDO PONCE, respondents.

SYLLABUS

REMEDIAL LAW; CIVIL PROCEDURE; PRINCIPLE OF RES JUDICATA; ELEMENT OF IDENTITY OF CAUSES OF ACTION; NOT PRESENT IN CASE AT BAR. - It is evident that one of the elements of res judicata is lacking in the case at bar. Respondent Court declared that identity of causes of action between Case No. B-46 and Case No. B-526 exist since they both sought registration of the land formed by alluvial deposits, but failed to recognize that the basis for claiming such registration was different in each case. In Case No. B-46, applicants-spouses Arcadio Ramirez and Marta Ygonia (herein petitioners parents) claimed that their possession of the land, tacked to that of their predecessors Apolonio Diaz, et al., (allegedly from 1943 onwards), was sufficient to vest title in them by acquisitive prescription. On the other hand, in LRC Case No. B-526, petitioner claimed that the duration of possession by his parents (commencing allegedly in 1958), combined with his own possession (counted from 1988 when he purchased the accretion from his parents) gave him sufficient title thereto by acquisitive prescription. In other words, because of the different relevant periods of possession being referred to, the basis of the application in Case No. B-46 is actually different from that in Case No. 526. Stated in another way, the right to relief in one case rests upon a set of facts different from that upon which the other case depended. Hence, there was no res judicata to bar the proceedings in LRC Case No. B-526.

DAVIDE, JR., J., separate opinion:

REMEDIAL LAW; SPECIAL CIVIL ACTIONS; CERTIORARI; NOT THE PROPER LEGAL REMEDY IN CASE AT BAR. - A special civil action for certiorari under Rule 65 of the Rules of Court is not the proper remedy, especially in this case where the private respondent was not even an oppositor, and even if he were his remedy would have been an ordinary appeal, which cannot be substituted by a special civil action for certiorari under Rule 65.

APPEARANCES OF COUNSEL

Manuel I. Ramirez for and in his own behalf.

Renato B. Damasing for private respondent.

D E C I S I O N

PANGANIBAN, J.:

Does the judgment in a land registration case denying the application filed in court in 1957 by the parents of the herein petitioner for the registration of land allegedly formed by alluvial deposits, which judgment was eventually affirmed by the Court of Appeals in 1968 and became final, constitute res judicata as to bar a subsequent application by the herein petitioner to register the same property?

This is the question tackled by this Court in the instant petition for review on certiorari assailing the Decision[1] dated September 6, 1994 of the respondent Court[2] in CA-G.R. SP No. 33735, and the subsequent Resolution[3] denying petitioners motion for reconsideration.

By a Resolution dated October 23, 1995, the First Division of this Court transferred the instant case to the Third. After careful deliberation on the submissions of the parties, this case was assigned to the undersigned ponente, who assumed his position as a member of the Court on October 10, 1995, for the writing of the herein Decision.

Antecedent Facts

In August, 1929, the Supreme Court rendered a decision in Government of the Phil. Islands vs. Colegio de San Jose,[4] declaring that two parcels of land bordering on Laguna de Bay and identified as Lots 1 and 2 form an integral part of the Hacienda de San Pedro Tunasan belonging to the Colegio de San Jose. Ten years later, the Colegio de San Jose sold the said two lots, together with an adjoining unregistered land, to the Government. The three parcels of land acquired by the Government became known as the Tunasan Homesite. The Rural Progress Administration (RPA), which was charged with the administration and disposition of the homesite, caused the subdivision thereof into small lots for the purpose of selling them to bona fide occupants.

In December, 1940, Lot 17, Block 78 of the Tunasan Homesite, which was part of Lot 2, and containing an area of 5,158 square meters, was sold by the RPA to Apolonio Diaz. In May, 1948, Lot 19 of the same homesite, which was also a part of Lot 2, with an area of 1,170 square meters, was acquired by Apolonio Diaz, although his son Pastor Diaz was made to appear as the vendee. In January, 1955, the heirs of Apolonio Diaz transferred their rights to both Lots 17 and 19 to Marta Ygonia, wife of Arcadio Ramirez (said spouses being the parents of herein petitioner), who paid the balance of the purchase price for the lots. The Secretary of Agriculture and Natural Resources approved the deeds of transfer of rights executed by the heirs of Apolonio Diaz, and in July, 1958, the Land Tenure Administration executed a deed of sale in favor of Marta Ygonia over Lots 17 and 19.

An original application for registration was filed by spouses Marta Ygonia and Arcadio Ramirez (docketed as LRC Case No. B-46) with the then Court of First Instance of Laguna in May, 1957. It had for its subject matter a parcel of land on the eastern side of Lot 17, with an area of 11,055 square meters (later increased to 11,311 sq. meters), which was claimed by the applicants as an accretion to their land gradually formed by alluvial deposits.

The Director of Lands opposed the application on the grounds that the applicants did not possess sufficient title to the land sought to be registered, and that the land in question is a part of the public domain. Canuto Ponce (herein private respondents predecessor) also filed an opposition claiming that the land applied for is foreshore land covered by a revocable permit granted to him in June 1956 by the Bureau of Lands. The Land Tenure Administration likewise opposed the application on behalf of the Republic of the Philippines, on the ground that, inasmuch as the Government was the previous owner of Lots 17 and 19, and considering that only the two lots -excluding the accretion - were sold to the predecessors of the applicant-spouses, the latter cannot claim ownership of the accretion and the same should be declared as part of the Governments patrimonial property.

The principal question raised, both in the lower court and on appeal before the Court of Appeals (in CA-G.R. No. 2893 8-R) was simply whether the accretion came into existence only in 1943, as the applicant-spouses claimed, or as far back as 1918, as maintained by the oppositors. As the appellate Court noted, resolution of said question rested on the credibility of witnesses presented. In its decision of October 31, 1960, the court a quo found for the oppositors, and denied the application for registration, holding that the accretion, based on preponderance of evidence, must have been gradual and dated back even before the acquisition of the Tunasan Homesite by the Government in 1939.

The appellate court upheld the findings of the lower court since the applicants-spouses failed to show any fact or circumstance of weight which was overlooked or misinterpreted by the trial court, and since the testimonies of the witnesses for the applicants-spouses were either not credible or else tended to support the oppositors position instead. The appellate court further stated:

Considering that the Colegio de San Jose was the owner of Lot 2 (of which lots 17 and 19 are part) to which the accretion in question is contiguous, it follows that the Colegio de San Jose also became the owner of said accretion at the time of its formation. Neither the applicants nor their predecessors can lay a claim of ownership over the land because it is clear from the documents that the property sold by the Government to Apolonio Diaz which was in turn conveyed to the applicants (herein petitioners parents) was just a little more than one-half hectare. True it is that the applicants tried to prove that the heirs of Apolonio Diaz verbally agreed with them to include the accretion in the transfer deeds, but such oral evidence cannot prevail over the solemn recitals of the documents. Besides, the heirs of Apolonio Diaz cannot pretend to convey what did not belong to them.

As a final attempt to have the land in dispute decreed in their names, the applicants claim that their possession of the land, tacked to that of their predecessors, is sufficient to vest title in them by acquisitive prescription. However, the evidence clearly demonstrates that from 1918 to 1940 it was Juan Ponce who was in possession of the land, and the possession of Canuto Ponce commenced from 1940 and extends up to the time this case was being tried. There is therefore no basis for the applicants claim of acquisitive prescription.[5]

The decision of the Court of Appeals in the above case, promulgated on July 6, 1968, became final and executory for failure of the applicants-spouses (parents of herein petitioner) to appeal therefrom.

However, that was not to be the end of the story. Herein petitioner, as the buyer of Lots 17 and 19 from his parents, filed on May 17, 1989, in LRC Case No. B-526, before the Regional Trial Court of Laguna, Branch XXV, Bian, Laguna,[6] an application for registration of the same land formed by accretion. After due publication, mailing and posting of notices, the petition was called for hearing.

Among petitioners witnesses was Mario Lantican, chief of the Forest Engineering and Infrastructure Unit at Los Baos, Laguna, who testified that the function of said office is to know whether the property involved is alienable and disposable. He testified that he conducted an inspection to determine the status of the subject property and prepared a report to the effect that the land is indeed disposable.

The trial court also noted the following findings in its Order of May 13, 1991:

The REPORT of the Community Environment and Natural Resources states that the parcel of land, after it has been inspected/investigated, was verified to be within the alienable and disposable land under the Land Certification Project No. 10-A of San Pedro, Laguna certified and declared as such on September 28, 1981 pursuant to the Forestry Administrative Order No. 4-1627 per BFIC Map No. 3004 (Exh. T). Likewise, (sic) the Director of the Land Management Bureau in its COMPLIANCE WITH REPORT, dated December 12, 1990, states that the land applied for registration is not covered by any kind of public land application filed by third persons, nor by any patent issued by said office (Exh. U).[7]

Thereafter, the court a quo, considering the testimonial and documentary evidence on record, ruled that applicant (herein petitioner) possessed an imperfect title to the accretion, which could already be confirmed and registered, and ordered[8] registration and confirmation of title over the claimed accretion in favor of herein petitioner, and issuance of a decree of registration. Pursuant to said order a decree of registration was eventually issued, followed by an original certificate of title.

It was only a matter of time before herein private respondent - son of the late Canuto Ponce - became aware of the situation. He filed a special civil action for certiorari on February 14, 1994 (which this Court referred to the Court of Appeals for appropriate action) seeking to annul the land decree issued in favor of petitioner and the judicial proceedings had in LRC Case No. B-526.

In its assailed Decision of September 6, 1994, the respondent Court upheld herein private respondents contention that the judgment in LRC Case No. B-526 approving the application over the accretion was improper since the earlier application in Case No. B-46 had been denied, which denial, as previously affirmed by the respondent Court in CA-G.R. No. 28938-R, constituted res judicata. The respondent Court ratiocinated:

There is merit in petitioners principal submission that res judicata had set in when private respondent applied for registration in 1989 over the same lot because of the previous rejection of the application of private respondents parents in 1960.

All of the requisites of res judicata x x x

xxx xxx xxx

are present which prevent private respondent from relitigating the same issue of registration of the identical lot. There is no question that the judgment in Case No. B-46 (p. 27, Rollo) became final after it was affirmed in CA-G.R. No. 28938-R on July 6, 1968 (p. 39, Rollo) which was not appealed. There is equally no doubt that Case No. B-46 was rendered by a court having jurisdiction over the same subject matter and parties. Moreover, there was, between Case No. B-46 and LRC Case No. B-526, identity of parties, of subject matter and parties (should be cause of action). The fact that private respondent was not a party in the first registration case (p. 88, Rollo) is of no moment because private respondent is a successor-in-interest of his parents who acquired the disputed lot by title in 1988 subsequent to the commencement of the first registration case in 1960 (Section 49[b], Rule 39, Revised Rules of Court). In fact, only substantial identity of parties is required (San Diego vs. Cardona, 70 Phil. 281; 2 Martin, Rules of Court, 1982 Ed., p. 425).

Similarly, there is identity of subject matter from a mere perusal of Case No. B-46 (p. 13, Rollo) and Case No. B-526 (p. 48, Rollo) which refer to the same property consisting of 11,311 sq. m. Lastly, there is no dispute that identity of causes of action between Case No. B-46 and Case No. B-526 exist since they both sought registration of the land formed by alluvial deposits. (CA Decision, p. 5; Rollo, p. 36.)

Thus, the respondent Court ruled as follows:

WHEREFORE, the petition is hereby given DUE COURSE. The Order in LRC Case No. B-526 dated May 13, 1991 and Decree No. N-198605 issued by the LRA pursuant thereto are hereby SET ASIDE. Accordingly, the application (in) LRC Case No. B-526 is hereby ordered DISMISSED.

The Issues

The instant petition for review on certiorari raises two issues:

I. Respondent Hon. Court of Appeals committed grave error in the interpretation and application of the doctrine of res judicata, more particularly on the issue of public domain and

II. Respondent Hon. Court of Appeals committed grave error when it violated the provisions of Section 38 of Act No. 496, as amended (The Land Registration Act) relative to the doctrine of non-collateral attack of a decree or title.

However, as we shall soon see, the resolution of this case hinges on the first issue, and there is really no need to delve into the second.

The Main Issue: Res Judicata

Petitioner argues that res judicata did not apply in the instant case because of the ruling of this Court in the Case of Director of Lands vs. Court of Appeals,[9] which quoted from the decision in an earlier but similarly titled case, Director of Lands vs. Court of Appeals,[10] as follows:

But granting for a moment, that the defenses (sic) of res judicata was properly raised by the petitioner herein, We still hold that, factually, there is no prior final judgment at all to speak of. The decision in Cadastral Case No. 41 does not constitute a bar to the application of respondent Manuela Pastor; because a decision in a cadastral proceeding declaring a lot public land is not the final decree contemplated in Sections 38 and 40 of the Land Registration Act.

A judicial declaration that a parcel of land is public, does not preclude even the same applicant from subsequently seeking a judicial confirmation of his title to the same land, provided he thereafter complies with the provisions of Section 48 of Commonwealth Act No. 141, as amended, and as long as said public lands remains alienable and disposable (now Sections 3 and 4, P.D. No. 1073). (italics supplied)[11]

After careful deliberation and consultation, we find ourselves in agreement with petitioners contention. Seen from the perspective offered by the aforequoted ruling, it is evident that one of the elements of res judicata is lacking in the case at bar. Respondent Court declared that identity of causes of action between Case No. B-46 and Case No. B-526 exist since they both sought registration of the land formed by alluvial deposits, but failed to recognize that the basis for claiming such registration was different in each case. In Case No. B-46, applicants-spouses Arcadio Ramirez and Marta Ygonia (herein petitioners parents) claimed that their possession of the land, tacked to that of their predecessors Apolonio Diaz, et al. (allegedly from 1943 onwards), was sufficient to vest title in them by acquisitive prescription.[12] On the other hand, in LRC Case No. B-526, petitioner claimed that the duration of possession by his parents (commencing allegedly in 1958), combined with his own possession (counted from 1988 when he purchased the accretion from his parents) gave him sufficient title thereto by acquisitive prescription.[13]

In other words, because of the different relevant periods of possession being referred to, the basis of the application in Case No. B-46 is actually different from that in Case No. B-526. Stated in another way, the right to relief in one case rests upon a set of facts different from that upon which the other case depended. Hence, there was no res judicata to bar the proceedings in LRC Case No. B-526.

Incidentally, the Solicitor General reached essentially the same conclusion in his Comment filed in CA-G.R. SP No. 33735 before the respondent Court.[14]

As to the parties pleas[15] before the respondent Court for the issuance of an order to cause the taking of a verification survey to determine whether they are referring to the same parcel of land or to two different properties, suffice it to say that the disposition of this case is not a bar to such a survey.[16]

WHEREFORE, premises considered, the instant petition is hereby GRANTED. The assailed Decision of the Court of Appeals is hereby SET ASIDE and the Order dated May 13, 1991 issued by the RTC of Laguna, Br. XXV granting registration and confirmation of title in favor of petitioner is hereby AFFIRMED. No costs.

SO ORDERED.

Narvasa, C.J. (Chairman), Melo, and Francisco, JJ., concur.

Davide, Jr., J., see separate opinion.

Republic of the PhilippinesSUPREME COURT

Manila

FIRST DIVISION

G.R. No. 170837 September 12, 2006

THE PEOPLE OF THE PHILIPPINES, appellee, vs.DEXTER TORRES y DELA CRUZ, appellant.

D E C I S I O N

CALLEJO, SR., J.:

Dexter Torres was charged with violation of Section 8, Article II of Republic Act (R.A.) No. 6425, as amended, for unlawful possession of 831.91 grams of marijuana fruiting tops, a prohibited drug; as well as Section 16, Article III of the same law for illegal possession of 0.26 grams of methamphetamine hydrochloride, a regulated drug commonly known as shabu.

The indictment in Criminal Case No. 08-1334 for violation of Section 8, Article II of R.A. No. 6425 reads:

That on or about August 13, 2001, in the Municipality of Gonzaga, province of Cagayan, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously have in his possession and under his control and custody one (1) brick of Marijuana fruiting tops weighing 831.91 grams wrapped in a newspaper which gave POSITIVE results for the tests of marijuana, a prohibited drug, the said accused knowing fully well and aware that it is prohibited for any person to, unless authorized by law, to possess or use any prohibited drug.

CONTRARY TO LAW.1

Upon the other hand, the accusatory portion of the Information in Criminal Case No. 08-1344 for violation of Section 16, Article III of the same law reads:

That on or about August 13, 2001, in the Municipality of Gonzaga, province of Cagayan, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously have in his possession and under his control and custody two (2) small heat-sealed transparent plastic sachets containing white crystalline substances with a total weight of 0.26 gm. which substances gave POSITIVE results to the tests for Methamphetamine Hydrochloride, a regulated drug, commonly known as Shabu, the said accused knowing fully well and aware that it is prohibited for any person to possess or use any regulated drug without the corresponding license or prescription.

CONTRARY TO LAW.2

The two (2) criminal cases were jointly tried at the Regional Trial Court (RTC) of Aparri, Cagayan, Branch 8. Dexter pleaded not guilty to both charges.3

The case for the prosecution is as follows:

In the early afternoon of August 13, 2001, operatives of the Second Regional Narcotics Office led by PSI Teodolfo M. Tannagan, SPO4 Abelardo M. Lasam, SPO1 Jessie O. Liwag and PO2 Tirso T. Pascual, as members, and a back-up team from the Gonzaga Police Station, armed with a search warrant issued by Executive Judge Jimmy Henry F. Lucson, Jr. of the RTC of Tuguegarao City, Cagayan, raided the house of Dexter Torres located at Salvanera St., Barangay Paradise, Gonzaga, Cagayan. The team was joined by the two barangay councilmen, Edward Sagnep and Ernesto Vivit.

Just before searching Dexter's house, SPO4 Lasam presented the search warrant and introduced the raiding team to Henny Gatchalian, Dexter's sister, and Dexter's children. When asked where the owners of the house were, Henny responded that her brother and his wife had just left. In their presence and that of the two kagawads, the team searched the master's bedroom and found the following stashed inside the second deck of a wooden cabinet: 1) a brick of dried suspected marijuana wrapped inside newsprint; 2) two plastic sachets of suspected shabu; 3) three pieces of aluminum foil; 4) a colored green plastic lighter; and 5) a small transparent plastic bag. The raiders then prepared an inventory4 of the articles seized, a copy of which was handed to Henny. After photos of the confiscated articles were taken, they were placed in a plastic bag and turned over to SPO4 Lasam, who submitted the same to the Regional Crime Laboratory Office 2, Camp Alimanao, Tuguegarao, Cagayan, for forensic examination.5

That same afternoon, Kagawads Edward and Ernesto both signed a certification6 as to the conduct of the search, certifying, among others, that it was conducted in an orderly and peaceful manner; no unnecessary force was employed; nobody was hurt; and nothing was taken without proper receipt. Henny, however, refused to sign the certification.

PSI Forensic Chemist Maria Leonora C. Camarao examined the substance seized from Dexter's house which tested positive for marijuana and shabu. On the witness stand, Maria confirmed her Physical Science Reports, hereunder reproduced as follows:

SPECIMEN SUBMITTED:

Exh "A" – one (1) brick of suspected Marijuana fruiting tops with weight of 831.91 grams wrapped with newspaper print and masking tape with markings and further placed in one (1) brown long envelope with description. xxx

Exh "B-B1" – Two (2) small heat-sealed transparent plastic sachets wrapped with masking tape with markings, containing white crystalline substances with total weight of 0.26 gm and further placed in one (1) cellophane with description. xxx

PURPOSE OF LABORATORY EXAMINATION:

To determine the presence of prohibited and/or regulated drugs. xxx

F I N D I N G S:

Qualitative examination conducted on the above-stated specimen gave the following results:

Exh "A" – gave POSITIVE result to the test for Marijuana, a prohibited drug. xxx

Exh "B-B1" – gave POSITIVE result to the test for Methamphetamine Hydrochloride, a regulated drug. xxx

C O N C L U S I O N:

Exh "A" – contains Marijuana, a prohibited drug. xxx

Exh "B-B1" – contains Methamphetamine Hydrochloride, a regulated drug. xxx7

On December 5, 2002, the prosecution formally offered its exhibits, which included the brick of marijuana leaves and fruiting tops weighing 831.91 grams (Exhibit "A"); and the shabu which weighed 0.26 grams (Exhibits "B" and "B-1"). Thereafter, the prosecution rested its case.8

Dexter, through counsel, objected to the offer of evidence on the ground that the same were "confiscated not from [his] possession as he was then staying in Laoag City."9

The defense consists of the testimonies of Dexter himself, his sister Henny Gatchalian, and his relative, Kagawad Ernesto, are predicated on denial and frame-up.

The defense version is as follows:

Thirty-eight-year old Dexter eked out a living as a carpenter. He averred that weeks before his house was searched, he was already in Gabu, Laoag City, working in a house construction project of his sister-in-law Rema Pentigrado. He left for Gabu, Laoag City on July 28, 2001 with his wife. After entrusting his children to the care of his father, and his sister Henny, he padlocked his place and gave the key to his sister. He declared that he only came to know of the incident from Henny when he and his wife arrived home from Gabu, Laoag City.10

Kagawad Ernesto, aged 65 years, Dexter's kin, narrated that on August 13, 2001 he was at his house. A policeman from the Gonzaga Police Station arrived and asked him to be a witness in a raid that lawmen would conduct in Dexter's residence. He acceded. However, upon reaching the premises, he found out that the search had already been conducted. He was informed that a brick of marijuana had been found inside the house, but he did not see it. Later, upon the prodding of the police, he signed a confiscation receipt without reading its contents.11

Henny, aged 35 years, recounted that at about 1:00 p.m. of August 13, 2001, she was at her father's house when a number of policemen arrived. They asked her to open the door, and as she was forced to do so, she accompanied the police to the neighboring house and unlocked the place. Inside, she was placed in one of the rooms and was ordered not to move a muscle. Thereafter, the policemen ransacked the cabinets, chests and drawers. Meanwhile, she remained confined in the room, without a clue as to what was taking place. After the search, the policemen brought her out of the house and showed to her the shabu

and marijuana which the police claimed to have found inside the house. She denied signing anything save the search warrant. Henny, however, told the court that it was Dexter's mistress, not his wife, that her brother brought to Gabu, Laoag City.12

On November 14, 2003, the RTC rendered a joint decision convicting Dexter of the offenses charged. The fallo reads –

WHEREFORE, the Court finds accused Dexter Torres y De La Cruz "GUILTY" beyond reasonable doubt in both cases and is hereby sentenced to suffer the penalty of Reclusion Perpetua and a fine of Five Hundred Thousand (P500,000.00) Pesos in Criminal Case No. 08-1334 and, the indeterminate prison term of six (6) years, one (1) day of prision mayor, as minimum, to twelve (12) years and one (1) day of reclusion temporal, as maximum, and a fine of Five Hundred Thousand (P500,000.00) Pesos in Criminal Case No. 08-1344.

With costs.

SO ORDERED.13

The trial court rejected the defense of alibi cum frame-up of the accused and upheld in favor of the prosecution the presumption of regularity in the performance of official duties.

Dexter appealed his conviction to this Court, docketed as G.R. Nos. 162542-43, praying for the reversal of the judgment. He claimed that the search warrant had been unlawfully implemented and that the prosecution failed to prove his guilt beyond reasonable doubt. He assigned the following errors purportedly committed by the trial court:

I

The court a quo gravely erred in finding that the search warrant issued against herein appellant was validly and lawfully implemented.

II

The court a quo erred in finding that the guilt of the accused-appellant for the crime charged has been proven beyond reasonable doubt.14

The appeal was transferred to the CA for appropriate action and disposition per Resolution15 of this Court dated April 6, 2005, in accordance with the ruling in People v. Mateo.16

On July 28, 2005, the judgment of conviction was affirmed, but was modified as to the penalty imposed in Criminal Case No. 08-1344. In disposing the appeal, the CA gave short shrift to Dexter's claim that the two-witness rule under Sec. 8, Rule 126 of the Revised Rules of Court was violated. Emphatically pointing out that at the time of the search, Henny was living in Dexter's house, and therefore a lawful occupant, it held that the two-witness rule applies only in the absence of a lawful occupant of the searched premises. Citing People v.

Simon,17 and considering that only 0.26 grams of shabu was involved, the appellate court reduced Dexter's sentence to an indeterminate penalty of six (6) months of arresto mayor to four (4) years and two (2) months of prison correccional. The petitory portion of the CA decision reads –

WHEREFORE, in view of the foregoing, the joint decision of the Regional Trial Court, Branch 08 of Aparri, Cagayan in Criminal Cases Nos. 08-1334 and 08-1344 is hereby AFFIRMED WITH MODIFICATIONS. Accused-appellant Dexter Torres y Dela Cruz is hereby found GUILTY of violating Sections 8 and 16 of Republic Act No. 6425, as amended by Republic Act No. 7659, and is hereby sentenced to suffer:

(1) the penalty of reclusion perpetua and a fine of Five Hundred Thousand Pesos (P500,000.00) in Criminal Case No. 08-1334; and

(2) an indeterminate sentence of 6 months of arresto mayor to 4 years and 2 months of prison correccional in Criminal Case 08-1344.

SO ORDERED.18

Dexter sought reconsideration, which the CA denied.19

Unfazed, Dexter, now the appellant, appealed anew to this Court, adopting by way of manifestation the same arguments before the CA.20

Appellant insists that the items seized from his house are inadmissible as evidence, being the fruits of an illegal search. He maintains that the manner of search conducted in his residence had failed to comply with the mandatory provisions of Section 8 (formerly Section 7), Rule 126 of the 2000 Rules of Criminal Procedure, which provides:

SEC. 8. Search of house, room, or premises, to be made in presence of two witnesses. – No search of a house, room, or any other premise shall be made except in the presence of the lawful occupant thereof or any member of his family or in the absence of the latter, two witnesses of sufficient age and discretion residing in the same locality.

Appellant argues that Henny is not a "lawful occupant" of the house as contemplated in the above section. And even if she is one, her presence did not cure the illegality of the search since she was prevented by the police from actually witnessing the search as it was being conducted. He points out that her sister was confined by the police in one of the rooms of the house while the simultaneous search was going on in the other portion thereof. Moreover, though the raiding party had summoned two barangay kagawads as witnesses, the police were already through searching the house when Kagawad Ernesto arrived. In other words, the latter, too, had failed to witness the search.21

The appeal is not meritorious.

Contrary to appellant's claim, Henny and Barangay Kagawad Ernesto were present when the lawmen searched his house. The illicit drugs and paraphernalia were found in the master's bedroom stashed inside the second deck of a wooden cabinet. This is clear from the positive and categorical testimony of PO2 Tirso Pascual, a member of the raiding team:

FISCAL :

Q What did you do when you arrived at the house of the accused at Salvanera St. Paradise, Gonzaga, Cagayan?

A SPO4 Lasam, the officer on the case who was handling the Search Warrant, informed the persons present at that house of the purpose of the members, Sir.

Q By the way, was the accused present?

A Dexter Torres was not present, Sir.

Q Who were in their house at that time?

A His sister, Henny Gatchalian and some of his children, Sir.

x x x

Q And after informing the sister of the accused of your purpose, that is to serve the search warrant against her brother, what did you do?

A In the presence of the barangay kagawad and the sister of the accused, we began to search the house, Sir.

Q And were you able to discover anything inside the house of the accused?

A Yes, Sir.

Q What were you able to find out inside the house?

A During the conduct of the search, we were able to recover one brick form of dried marijuana wrapped in a newspaper, placed inside a wooden cabinet particularly at the second deck of the wooden cabinet, Sir.

Q Aside from that, what did you see inside the house?

A While conducting the search, we recovered two transparent

plastic sachet containing, which we believe to be shabu and

some other materials such as lighter, aluminum foils, Sir.22

x x x

COURT:

Q Where was Henny Gatchalian at the time of the search?

A Always beside us, Your Honor.

Q You mean Henny Gatchalian was also inside the house?

A Yes, Your Honor.

FISCAL:

Q So there were five of you inside the house?

A Yes, Sir.

Q You, Liwag, councilmen Sagnep and Vivit and Gatchalian?

A Yes, Sir.23

PO2 Pascual's above testimony was corroborated by SPO1 Jessie Liwag, likewise a member of the raiding team that searched the house of the appellant.24 Besides, Henny and Kagawad Ernesto, were not the only witnesses to the search; Kagawad Edward Sagnep was also present during the entire search. This is evinced by the testimonies of PO2 Pascual and the certification signed by the two Kagawads.

The RTC and the CA correctly rejected the testimonies of defense witnesses Henny and Kagawad Ernesto for being biased and riddled with inconsistencies. We are in full accord with the following encompassing disquisition of the appellate court:

We note, however, that her credibility is adversely affected by the inconsistencies in her statements. She could not even exactly say where she was staying before the police arrived to conduct the search. Thus, the transcript of her testimony provides as follows:

FISCAL NELJOE CORTES: You do not own a house in Gonzaga?

Witness GATCHALIAN: We only stay in the house of my parents-in-law, Sir.

Q: You stated while ago that you were then in your house when they conducted the search?

A: Yes, Sir.

Q: And you likewise stated that your house is situated beside the house of Dexter Torres

A: Yes, Sir.

Q: The house of your father is situated about 200 meters away from the house of Dexter Torres, is it not?

A: Yes, Sir.

Q: And according to you at that time, you were staying in the house of your father-in-law?

A: I was not staying in the house of my father, Sir.

Q: Because you were then staying in the house of Dexter Torres?

A: Yes, Sir.

Q: And as a matter of fact, you were in the house of Dexter Torres when the police arrived, is it not?

A: I was in the house of my father, Sir.

Q: So you now agree with me that in August 2001, you were staying in the house of your brother Dexter Torres?

A: No, Sir.

Q: Did you not state a while ago that you are staying in your brother's house?

A: Yes, Sir, but when the police conducted the search, I was in the house of my father.

Q: Again, you seem not to be telling the truth?

A: Why not, Sir.

Q: A while ago also you stated that you are staying in the house of your father-in-law, which is about 200 meters away?

A: Yes, Sir.

Q: So at that time you were staying in three houses, in the house of your brother, in the house of your father-in-law and in the house of your (father)?

A: I am not staying in the house my father-in-law, Sir.

Q: So your statement earlier that you are staying in your father-in- law's house is not correct?

A: No, Sir.

Q: So the house that you are referring to in your direct examination is actually the house of your father or the house of Dexter?

A: (I) was only told by Dexter that I will just clean the house if he leaves the place, Sir.

Consistent with the trial court's own findings as between the testimony of Gatchalian and the testimonies of the police officers, this Court finds the testimonies of the police officers more credible. Aside from the principle that testimonies of police officers deserve full faith and credit given the presumption that they have performed their duties regularly, we note that the prosecution witnesses gave consistent and straightforward narrations of what transpired on August 13, 2001. The police officers have consistently testified that Gatchalian was then in the house of the accused-appellant when they arrived thereat, and that she was with them when they conducted the search inside the house.

The presence of barangay council members Edward Sagnep and Ernesto Vivit during the search was also sufficiently established. These barangay officials even affixed their signatures on the confiscation receipt issued by PO3 Jessie Liwag that contains a statement that the seized properties were found in the presence of Brgy. Kag. Edward R. Sagnep and Brgy. Kag. Ernesto Q. Vivit.

Barangay kagawad Ernesto Vivit's retraction and assertion that he was not really present when the policemen searched the house of the accused-appellant fail to persuade. During cross-examination, Vivit, a relative of the accused-appellant, even testified in court:

FISCAL NELJOE CORTES: You were required to sign a confiscation receipt?

A: Yes, sir.

Q: You were told that the document that you were asked to sign is a Confiscation Receipt, meaning, the items you enumerated therein were actually taken as a result of the search?

A: Yes, sir.

Q: And you signed that document because you know for a fact that the items were actually recovered inside the house of the accused?

A: Yes, sir.

Q: And that is the truth?

A: Yes, sir.

As correctly pointed out by the trial court:

The afore statements of this defense witness clearly established the fact that, there was nothing irregular in the execution of the search warrant. It also establishes the material fact that, what was claimed to have been recovered, seized and confiscated from the cabinet located in one of the rooms of Dexter's house, to wit: dried marijuana, two (2) plastic sachets of shabu, lighter, match box, and aluminum foils are true. True, because Ernesto Vivit, a witness to the search and a barangay councilman signed the confiscation receipt voluntarily because he knew for a fact that said items were actually recovered from the house of the accused."

Even defense witness Henny Gatchalian mentioned in her testimony that Ernesto Vivit was with the policemen when they conducted the search.25

More importantly, it is now too late in the day for appellant to object to the admissibility of the evidence seized pursuant to the search warrant. Though he seasonably objected after the prosecution formally offered its evidence, his objection was not based on constitutional grounds, but rather on the ground that he was not in actual possession of the premises at the time the search was conducted.26

In the case of Demaisip v. Court of Appeals,27 we held:

At any rate, objections to the legality of the search warrant and to the admissibility of the evidence obtained thereby were deemed waived when no objection to the legality of the search warrant was raised during the trial of the case nor to the admissibility of the evidence obtained through said warrant.

Indeed, the right to be secure from unreasonable searches and seizures, like any other right, can be waived and the waiver may be made either expressly or impliedly.28

Hard to believe is appellant's insinuation that the evidence for the prosecution were planted. His very conduct following his arrest would belie this allegation:

First. He failed to complain about this matter when he was apprehended nor bestirred himself to bring it up during his preliminary investigation. He could not even identify the person, the policeman or policemen who allegedly planted the evidence. In fact, it was only during this appeal that appellant accentuated this alleged frame-up.

Second. The appellant failed to inform his counsel of the alleged planting of evidence by the policemen; if he had done so, for sure, the said counsel would have prepared his affidavit and filed the appropriate motion in court for the suppression of the things/articles seized by the policemen.

Third. We find it incredible that the policemen planted said evidence in full view of Kagawad Edward, whose presence during the search was undisputed. This is so because the policemen could be prosecuted for planting evidence and, if convicted, sentenced to death under Section 19 of R.A. No. 7659:

SECTION 19. Section 24 of Republic Act No. 6425, as amended, known as the Dangerous Drugs Act of 1972, is hereby amended to read as follows:

Sec. 24. Penalties for Government Officials and Employees and Officers and Members of Police Agencies and the Armed Forces, 'Planting' of Evidence. – The maximum penalties provided for [in] Sections 3, 4(1), 5(1), 6, 7, 8, 9, 11, 12 and 13 of Article II and Sections 14, 14-A, 15(1), 16 and 19 of Article III shall be imposed, if those found guilty of any of the said offenses are government officials, employees or officers, including members of police agencies and the armed forces.

Any such above government official, employee or officer who is found guilty of "planting" any dangerous drugs punished in Sections 3, 4, 7, 8, 9 and 13 of Article II and Sections 14, 14-A, 15 and 16 of Article III of this Act in the person or in the immediate vicinity of another as evidence to implicate the latter, shall suffer the same penalty as therein provided.

The incantation of frame-up is nothing new. It is a common and standard line of defense in most prosecutions for violation of the Dangerous Drugs Law. While such defense cannot and should not always be considered as contrived, nonetheless, it is generally rejected for it can easily be concocted but is difficult to prove. Police officers are, after all, presumed to have acted regularly in the performance of their official functions, in the absence of clear and convincing proof to the contrary, or that they are motivated by ill-will.29

Appellant next submits that his absence during the search coupled with the fact that he was not caught in possession of the illicit drugs and paraphernalia are circumstances sufficient enough to exonerate him.30

We are not persuaded.

The essential elements of the crime of illegal possession of regulated drugs are the following: (a) the accused is found in possession of a regulated drug; (b) the person is not authorized by law or by duly constituted authorities; and (c) the accused has knowledge that the said drug is a regulated drug.31

The elements of illegal possession of prohibited drugs are as follows: (a) the accused is in possession of an item or object which is identified to be a prohibited drug; (b) such possession is not authorized by law; and (c) the accused freely or consciously possessed the prohibited drug.32

The fact that appellant was not in his residence when it was searched nor caught in flagrante delicto possessing the illicit drugs and paraphernalia does not dent the case of the prosecution. As a matter of law, when prohibited and regulated drugs are found in a house or other building belonging to and occupied by a particular person, the presumption arises that such person is in possession of such drugs in violation of law, and the fact of finding the same is sufficient to convict. Otherwise stated, the finding of the illicit drugs and paraphernalia in the house owned by the appellant raised the presumption of knowledge and, standing alone, was sufficient to convict.33

This Court, in People v. Tira,34 ruminated on the juridical concept of "possession" under Section 16, Article III of R.A. No. 6425, as amended, and the evidence necessary to prove the said crime. The same principle applies to prohibited drugs.

x x x This crime is mala prohibita, and as such, criminal intent is not an essential element. However, the prosecution must prove that the accused had the intent to possess (animus posidendi) the drugs. Possession, under the law, includes not only actual possession, but also constructive possession. Actual possession exists when the drug is in the immediate physical possession or control of the accused. On the other hand, constructive possession exists when the drug is under the dominion and control of the accused or when he has the right to exercise dominion and control over the place where it is found. Exclusive possession or control is not necessary. The accused cannot avoid conviction if his right to exercise control and dominion over the place where the contraband is located, is shared with another.

Thus, conviction need not be predicated upon exclusive possession, and a showing of non-exclusive possession would not exonerate the accused. Such fact of possession may be proved by direct or circumstantial evidence and any reasonable inference drawn therefrom. However, the prosecution must prove that the accused had knowledge of the existence and presence of the drug in the place under his control and dominion and the character of the drug. Since knowledge by the accused of the existence and character of the drugs in the place where he exercises dominion and control is an internal act, the same may be presumed from the fact that the dangerous drugs is in the house or place over which the accused has control or dominion, or within such premises in the absence of any satisfactory explanation.

In the instant case, appellant failed to present any evidence to rebut the existence of animus possidendi over the illicit drugs and paraphernalia found in his residence. His claim that he was not aware that such illegal items were in his house is insufficient. We have time and again ruled that mere denial cannot prevail over the positive testimony of a witness. Mere denial, just like alibi, is a self-serving negative evidence which cannot be accorded greater evidentiary weight than the declaration of credible witnesses who testify on affirmative matters. As between a categorical testimony that rings of truth on one hand, and a bare denial on the other, the former is generally held to prevail.35 Moreover, his defense of frame-up, as we said, is a common and standard line of defense which is invariably viewed with disfavor, it being capable of easy concoction and difficult to prove.36 Considering that no clear and convincing evidence was presented to prove such allegation, the presumption of regularity in the performance of official duty,37 as well as the principle that findings of the trial court on the credibility of witnesses, especially when affirmed by the CA, are entitled to great respect and are accorded the highest consideration,38 must prevail over the appellant's imputation of ill-motive on the part of the policemen who conducted the search.

The RTC and the CA, in Criminal Case No. 08-1334, correctly meted against appellant the penalty of reclusion perpetua and the P500,000.00 fine. The crime of violation of Section 8, Article II of R.A. No. 6425, as amended, for illegal possession of 831.91 grams of marijuana, a prohibited drug, is punishable by reclusion perpetua to death. Considering that there are no qualifying circumstances, the appellant is sentenced to suffer the penalty of reclusion perpetua, conformably to Article 63 of the Revised Penal Code.

The Court, however, will modify the penalty the CA imposed upon the appellant in Criminal Case No. 08-1344.

Under Section 16, Article III of R.A. No. 6425, as amended, the imposable penalty of possession of less than 200 grams of regulated drug, in this case shabu, is prision correccional to reclusion perpetua. Based on the quantity of the regulated drug subject of the offense, the imposable penalty shall be as follows:

QUANTITY IMPOSABLE PENALTY

Less than one (1) gram to 49.25 grams prision correccional

49.26 grams to 98.50 grams prision mayor

98.51 grams to 147.75 grams reclusion temporal

147.76 grams to 199 grams reclusion perpetua

Considering that the regulated drug found in the possession of the appellant is only 0.26 grams, the imposable penalty for the crime is prision correccional. Applying the Indeterminate Sentence Law, the appellant should have been sentenced to suffer an indeterminate penalty of from four (4) months and one (1) day of arresto mayor in its medium period, as minimum, to three (3) years of prision correccional in its medium period, as maximum, for violation of Section 16 of R.A. No. 6425, as amended.

In view of the quantity of shabu confiscated in this case, the CA correctly deleted the penalty of fine imposed on appellant, as the second paragraph of Section 20 of R.A. No. 6425, as amended by Section 17 of R.A. No. 7659, provides only for the penalty of imprisonment.

Republic Act No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002, increased the penalty for illegal possession of less than five (5) grams of shabu to imprisonment of twelve (12) years and one (1) day to twenty years and a fine ranging from three hundred thousand (P300,000.00) to four hundred thousand pesos (P400,000.00). However, since this law is not favorable to appellant, it cannot be given retroactive application in the instant case. This is the mandate of Article 22 of the Revised Penal Code, which reads:

ART. 22. Retroactive effect of penal laws. – Penal laws shall have a retroactive effect insofar as they favor the persons guilty of felony, who is not a habitual criminal, as this term is defined in Rule 5 of Article 62 of this Code, although at the time of the publication of such laws a final sentence has been pronounced and the convict is serving the same.

The same law also changed the penalty for illegal possession of 500 grams or more of marijuana to life imprisonment to death, and a fine ranging from P500,000.00 to P10,000,000.00. Obviously, the amendment of the penalty from reclusion perpetua to life imprisonment to death in R.A. No. 9165 cannot, likewise, be applied retroactively to the present case since it would also be unfavorable to appellant.

IN LIGHT OF ALL THE FOREGOING, the Decision appealed from is AFFIRMED with MODIFICATION. Accordingly, judgment is hereby rendered as follows:

(1) In Criminal Case No. 08-1334, the appellant is found GUILTY beyond reasonable doubt of violation of Section 8, Article II of Republic Act No. 6425, as amended, and is hereby SENTENCED to suffer the penalty of reclusion perpetua. He is also ORDERED to pay a fine of P500,000.00 without subsidiary imprisonment in case of insolvency;

(2) In Criminal Case No. 08-1344, the appellant is hereby found GUILTY beyond reasonable doubt of violation of Section 16, Article III of Republic Act No. 6425, as amended, and is SENTENCED to suffer an indeterminate penalty from Four (4) months and One (1) day of arresto mayor, in its medium period, as minimum to Three (3) years of prision correccional, in its medium period, as maximum. No costs.

SO ORDERED.

Panganiban, Ynares-Santiago, Austria-Martinez, Chico-Nazario, J.J., concur.

Republic of the PhilippinesSUPREME COURT

Manila

THIRD DIVISION

G.R. No. 71176 May 21, 1990

REPUBLIC OF THE PHILIPPINES (Ministry of Education and Culture), petitioner, vs.INTERMEDIATE APPELLATE COURT and AMEREX ELECTRONICS, PHILS. CORPORATION, respondents.

Siguion Reyna, Montecillo and Ongsiako for private respondents.

FERNAN, C.J.:

The government, in the exercise of its power of eminent domain, expropriated property owned by Amerex Electronics, Phils. Corporation. The amount of just compensation for such property is now the subject of this petition for review on certiorari.

The property involved consists of four (4) parcels of land with a total area of 9,650 square meters located at No. 2090 Dr. Manuel L. Carreon Street, Manila, a short walking distance from Herran (now Pedro Gil) Street. Its previous owner, Avegon Inc., offered it for sale to the City School Board of Manila on July 21, 1973 at P2,300,000. The school board was willing to buy at P1,800,000 but the then Mayor of Manila intervened and volunteered to negotiate with Avegon Inc. for a better price.

Inasmuch as the alleged negotiation did not materialize, on June 3, 1974, Avegon Inc. sold the property and its improvements to Amerex Electronics, Phils. Corporation (Amerex for brevity) for P1,800,000. Thereafter, Transfer Certificates of Title Nos. 115571, 115572, 115573 and 115574 were issued in favor of Amerex.

On August 29, 1975, the Solicitor General filed for the Department of Education and Culture (DEC) a complaint against Amerex for the expropriation of said property before the Court of First Instance of Manila (Civil Case No. 99190). The complaint stated that the property was needed by the government as a permanent site for the Manuel de la Fuente High School (later renamed Don Mariano Marcos Memorial High School); that the fair market value of the property had been declared by Amerex as P2,435,000, and that the assessor had

determined its market value as P2,432,042 and assessed it for taxation purposes in the amount of P1,303,470. 1

In a motion praying that the plaintiff be authorized to take immediate possession of the property, the then Acting Solicitor General Hugo E. Gutierrez, Jr., invoking Presidential Decree No. 42, informed the court that said assessed value of the property for taxation purposes had been deposited with the Philippine National Bank (PNB) in Escolta, Manila on September 30, 1975.

Consequently, on October 9, 1975, the court issued an order directing the sheriff to place the plaintiff in possession of the property. The plaintiff took actual possession thereof on October 13, 1975.

Amerex filed a motion to dismiss the complaint stating that while it was not contesting the merits of the complaint, the same failed to categorically state the amount of just compensation for the property. It therefore prayed that in consonance with P.D. No. 794, the just compensation be fixed at P2,432,042, the market value of the property determined by the assessor which was lower than Amerex's own declaration.

The motion to dismiss was opposed by the plaintiff reasoning that while indeed the market value as determined by the assessor was lower than that declared by Amerex, the plaintiff intended to present evidence of a much lower market value.

Alleging that its motion to dismiss merely sought a clarification on the just compensation for the property, Amerex filed a motion to withdraw the plaintiffs deposit of P1,303,470 with the PNB without prejudice to its entitlement to the amount of P1,128,572, the balance of the just compensation of P2,432,042 insisted upon. The plaintiff interposed no objection to the motion provided that an order of condemnation be issued by the court and that the plaintiff be allowed to present its evidence on the matter of just compensation.

On December 3, 1975, the lower court issued an order vesting the plaintiff with the lawful light to take the property upon payment of just compensation as provided by law. On December 19, 1975, after the parties had submitted the names of their respective recommendees to the appraisal committee, the lower court appointed Atty. Narciso Peña, Aurelio V. Aquino and Atty. Higinio Sunico as commissioners.

Thereafter, the lower court ordered Amerex to submit an audited financial statement on the acquisition cost of the property including expenses for its improvement. Amerex was also allowed by the court, after it had filed a second motion therefor, to withdraw the P1,303,470 deposit with the PNB.

On March 12, 1976, the plaintiff filed a motion for leave of court to amend its complaint stating that after it had filed the same, P.D. No. 464 2 was amended by P.D. No. 794; that Section 92 of said Code, as amended, provided that when private property is acquired for public use, its just compensation "shall not exceed the market value declared by the owner or administrator or anyone having legal interest in the property, or such market value as determined by the assessor, whichever is lower"; and that the amended complaint would

state that the fair market value of the property could not be in excess of P1,800,000, the amount for which defendant's predecessor-in-interest had offered to sell said properties to the Division of Public Schools of Manila and which amount was also the purchase price paid by Amerex to Avegon Inc. In due course, plaintiff filed an amended complaint.

Amerex, however, opposed the motion for leave to amend the complaint contending that the plaintiff was insisting on a valuation given by neither the owner nor the assessor as mandated by P.D. No. 794 but by another person in August 1973 when the peso value was much higher.

The lower court denied the motion to amend the complaint; but after the plaintiff had filed a motion for reconsideration, the lower court admitted the amended complaint on April 27, 1976. In the meantime, Amerex submitted to the court "audited financial statements' consisting of an account stating that the cost of its land and buildings was P2,107,479.48, and another account stating that it incurred total expenses of P150,539 for their maintenance. 3 These statements yielded the amount of P2,258,018.48 as the total value of the property.

The commissioners conducted an ocular inspection and hearing on the value of the property. On October 18, 1976, the plaintiff filed a motion seeking the disqualification of Engineer Aurelio B. Aquino as commissioner on the ground that he could not be expected to be unbiased inasmuch as in the three appraisal reports submitted by Amerex, Aquino had indicated as fair market value of the property amounts much more than the plaintiffs fair market value determination of P1,800,000. Said appraisal reports were made by Ampil Realty and Appraisal Co., Inc. with Aquino signing thereon as real estate appraiser. One report, dated February 15, 1974 and submitted to Commonwealth Insurance Company indicated P2,100,000 as the fair market value of the property. 4 Two other reports were made at the behest of Amerex with one, dated November 15, 1974, fixing the fair market value at P2,300,000 5, and the other, dated June 5, 1975, with P2,400,000 as the fair market value. 6

Amerex opposed the motion to disqualify Aquino as commissioner, and the court, in its order of November 5, 1976, denied it. Hence, on January 24, 1977, the commissioners submitted their appraisal report finding that the fair market value of the property was P2,763,400. The commissioners, however added:

Under the provision of Presidential Decree No. 464, as amended by Presidential Decree No. 794, abovequoted, we could have safely adopted the valuation of the City Assessor in the sum of P2,432,042.00, this being lower than that declared by the owner in the sum of P2,435,000.00, although by actual appraisal of the undersigned Commissioners the property could command a fair market value of P2,763,400.00 as of the date of our ocular inspection.

Considering, however, that according to the audited statement submitted by defendant, the acquisition costs and other legal expenses incurred on the subject property by AMEREX, the grand total of P2,258,018.57, are (sic) lower than the findings of the undersigned Commissioners, the

explanation being the fact that the price of the sale was a real bargain possibly due to dire necessities of the seller Avegon, it is respectfully submitted that the said sum of P2,258,018.57 be adopted for purposes of determining just compensation payable to defendant AMEREX, which sum does not exceed, but is even lower than, the fair market value was determined by the City Assessor and as declared by said defendant. 7

Both parties objected to the report of the commissioners. The plaintiff contended that the commissioners' conclusion that the fair market value of the property was P2,763,400 was unsupported by evidence and that their recommended just compensation of P2,258,018.57 was excessive. It reiterated its stand that the just compensation should only be P1,800,000 it being the price had the sale between the city school board and Avegon Inc. materialized and also the actual price of the sale between Avegon Inc. and Amerex. On the other hand, Amerex averred that the recommended just compensation was unjustified in view of the commissioners' finding that the fair market value of the property was P2,763,400.

On March 15, 1977, the lower court 8 rendered a decision based on the following findings:

The court believes that the findings of the commissioners are supported by the evidence adduced during the hearings and that their recommendation is reasonable. The property was originaly owned by Avegon Inc. and was assessed at P1,079,370.00 by the City of Manila for the year 1974 (Exh. A-4). Avegon Inc. offered to sell it to the City School Board on July 21, 1973 at P2,300,000.00 but it accepted the counter-offer of P1,800,000. The negotiations, however, fell through when the city failed to act (Exhs. C, C-1, C-2, C-3 and C-4). The property was appraised on February 15, 1974 at P2,100,000.00 at the Instance of Commonwealth Insurance Company, an affiliate of Warner, Barnes & Co., Inc. (Exh. G). The defendant company introduced improvements on the property in the middle part of 1974 worth P260,690.50 (Exhs. 4, 4-A to 4-J; 11, 13, 14 to 19). After the renovation, the property was again appraised at the instance of the defendant at P2,300,000.00 on November 15, 1974 (Exh. 2). Due to the world-wide recession, there followed a slump in the demand for electronic products. On June 4, 1975, the Traders Commodities Corporation offered to buy the property at P2,750,000.00 with a deposit of P50,000.00 as earnest money. The offer was formally made by the law firm Salonga, Ordoñez, Yap, Africano and Associates (Exch. 6). The offer was accepted on June 9, 1975 (Exhs. 7 and 8). The sale was not consummated, however, when the government notified the defendant in a conference held in Malacanang on June 15, 1975 that it wanted to buy the property for the use of the Manuel de la Fuente High School (Exh. 9). Because of the failure of the parties to agree on the price and other conditions of the purchase, the government filed this action on August 2, 1975.

It is apparent that the commissioners were influenced by the fact that the city assessors fixed the market value of the property at P2,432,042.00 for the year 1975 pursuant to Presidential Decree No. 464 and that there

was a perfected contract to buy it at P2,750,000.00. No evidence was presented nor even an allegation made, to show that the government valuation is fraudulent or erroneous. It must therefore be regular (Rule 131, sec. m) and in view of the reliance of the Presidential Decree upon it as a standard to be followed by the courts in arriving at the just compensation of the property when it is acquired by the government, it has great evidentiary weight. The offer to buy at P2,750,000.00 was made by one of the most reputable law firms in the country. It is not likely that it would have lent itself to any fraudulent device or scheme to inflate the value of the property. Commissioner Peña is a renowned authority on land registration, and has been a realtor for many years. Atty. Higinio Sunico is the chief of the Land Management Division, Bureau of Lands, who was recommended by the plaintiff. Both are well-known for their probability Although it appears that Mr. Aquino, the commissioner recommended by the defendant, had occasion in the past to participate in transactions involving the same property, the court believes that the concurrence of the other commissioners is a safe guaranty of the correctness of their appraisal and recommendation.

Accordingly, the dispositive portion of the decision reads as follows:

WHEREFORE, judgment is hereby rendered funding the amount of P2,258.018.57 as just compensation for the property of the defendant and declaring the plaintiff entitled to possess and approximate it to the public use alleged in the complaint and to retain it upon payment of the said amount, after deducting the amount of P1,303,470.00, with legal interest from October 13, 1975 when the plaintiff was placed in possession of the real property, and upon payment to each of the commissioners of the sum of P35.00 for their attendance during the hearings held on January 23, February 16, May 11, July 23, September 17, October 12 and December 10, 1976, plus P500.00 each for the preparation of the report, and the costs.

The plaintiff elevated the case to the then Intermediate Appellate Court (IAC) for review. On October 29, 1984, it affirmed the appealed decision with the modification that the plaintiff Republic of the Philippines be exempted from the payment of the commissioners' fees, the P500.00 granted each of them for the preparation of the report and the costs.

Its motion for the reconsideration of said decision having been denied, petitioner filed the instant petition submitting the following issues for resolution:

1. Whether or not respondent Court erred in not disqualifying Commissioner Aurelio B. Aquino from membership in the Committee of Appraisal.

2. Whether or not respondent Court erred in not totally disregarding the audited statement by the defendant, which is hearsay in nature and was not formally offered in evidence.

3. Whether or not respondent Court erred in totally disregarding petitioner's evidence showing that the award of just compensation should be only P1,800,000.00 and not P2,258.018.57 as awarded by said respondent Court.

The issue of the disqualification of Aquino as commissioner deserves scant attention. Under Section 8, Rule 67 of the Rules of Court, the court may take the following actions on the report submitted by commissioners: it may "accept the report and render judgment in accordance therewith; or for cause shown, it may recommit the same to the commissioners for further report of facts, or it may set aside the report and appoint new commissioners, or it may accept the report in part and reject it in part; . . . ." In other words, the report of the commissioners is merely advisory and recommendatory in character as far as the court is concerned. 9

Hence, it hardly matters that one of the three commissioners had a preconceived and biased valuation of the condemned property. The veracity or exactitude of the estimate arrived at by the commissioners may not be adversely affected thereby. In fact, the report of only two commissioners may suffice if the third commissioner dissents from the former's valuation. 10 Indeed, the participation of an allegedly biased commissioner may not result in the total disregard of an appraisal report in the absence of proof that the two other commissioners were unduly influenced by their allegedly partial colleague.

The determination of just compensation for a condemned property is basically a judicial function. As the court is not bound by the commissioners' report, it may make such order or render such judgment as shall secure to the plaintiff the property essential to the exercise of its right of condemnation, and to the defendant just compensation for the property expropriated. For that matter, this Court may even substitute its own estimate of the value as gathered from the record. 11 Hence, although the determination of just compensation appears to be a factual matter which is ordinarily outside the ambit of its jurisdiction, this Court may disturb the lower court's factual finding on appeal when there is clear error or grave abuse of discretion. 12

We hold that the courts below made an erroneous determination of just compensation in this case.

In the first place, the just compensation prescribed herein is based on the commissioners' recommendation which in turn is founded on the "audited" statements of Amerex that the property is worth P2,258,018.57. As earlier pointed out, while the court may accept the commissioners' report and render judgment in accordance therewith, it may not do so without considering whether the report is supported by evidence. The court is also duty-bound to determine whether the commissioners had discharged the trust reposed in them according to

well-established rules and formed their judgment upon correct legal principles for they are not supposed to act ad libitum . 13

Amerex's "audited" statement on the acquisition cost, cost of painting and major repairs, taxes, and insurance premiums which totals P2,107,479.48, contains the following certification:

We have checked the details of the transactions indicated in the foregoing schedule of Land and Building Account as at January 31, 1976 with the books and records of Amerex Electronics (Philippines) Corporation which were presented to us for examination and have found the details to be in accordance therewith. We have not made an audit of the books of accounts of Amerex Electronics (Philippines) Corporation.

Sycip, Gorres Velayo & Co.

PTR No. 4709791

January 23, 1976

Makati, Rizal

(Emphasis supplied). 14

Amerex's other "audited" statement on the maintenance expenses of the property wherein it allegedly incurred the amount of P150,539.09 contains a similar certification by the same accounting firm specifically stating that the auditor did not make an audit of the books of accounts of Amerex. 15

It is clear from these certifications that the accounting firm which issued them merely compared the figures in the schedules or "audited" statements with those of the records and books of accounts of Amerex. As no investigation was made as to the veracity of the figures in the account, there was no audit in the real sense of the term. To audit is to examine an account, compare it with the vouchers, adjust the same, and to state the balance, by persons legally authorized for the purpose. 16 While the word "audit" is sometimes restricted to a mere mathematical process, it generally includes investigation, the weighing of evidence, and deciding whether items should or should not be included in the account . 17 Audit involves the exercise of discretion; it is a quasi-judicial function. 18 The accuracy of the "audited" statements herein is therefore suspect.

Besides the fact that the petitioner was not furnished a copy of the audited statements which were also not introduced in evidence, Enrique P. Esteban, vice-president and treasurer of Amerex, and even a representative of the accounting firm, were likewise not presented during the trial thereby depriving petitioner herein of the opportunity to cross-examine them. It would therefore be unfair to the petitioner to hold it bound by the "audited" statements of Amerex which may have been premised on false or mistaken data. 19

This Court having declared as unconstitutional the mode of fixing just compensation under P.D. No. 794 20 just compensation should be determined either at the time of the actual taking of the government or at the time of the judgment of the court, whichever comes first. 21

In this case, the issuance of the condemnation order and the actual taking of the property both occurred in October, 1975. Accordingly, the appraisal made by Ampil Realty and Appraisal Co., Inc. on June 5, 1975, which date is nearest to that of the actual taking of the property, should be the basis for the determination of just compensation the record being bereft of any indications of anomaly appertaining thereto. It should be added that Wenceslao Ampil, the president of said appraisal firm, testified at the trial and therefore petitioner had the opportunity to confront him and to question his report. The reasonableness of the June 5,1975 appraisal fixing at P2,400,000 the fair market value of the property, is bolstered by the fact that on June 4, 1975, Traders Commodities Corporation, through its lawyer, Sedfrey A. Ordoñez offered to buy the property at P2,750,000. 22 It must be emphasized, however, that legal interest on the balance of the just compensation of P2,400,000 after deducting the amount of P1,303,470 which had been delivered to Amerex, should be paid by petitioner from the time the government actually took over the propert y. 23

Much as we realize the need of the government, under these trying times, to get the best possible price for the expropriated property considering the ceaseless and continuing necessity for schools, we cannot agree with the petitioner that the just compensation for the property should be the price it commanded when it was first offered for sale to the City School Board of Manila. Petitioner failed to substantiate its claim that the property is worth the lower amount of P1,800,000. In contrast, Amerex submitted evidence consisting of the aforesaid June 5, 1975 appraisal report which fixed the fair market value of the property at P2,400,000.

WHEREFORE, the just compensation of the property expropriated for the use of the Manuel de la Fuente High School Don Mariano Marcos Memorial High School) is hereby fixed at Two Million Four Hundred Thousand Pesos (P2,400,000.00). After deducting the amount of P1,303,470.00 therefrom, the petitioner shall pay the balance with legal interest from October 13, 1975.

SO ORDERED.

Feliciano and Cortes, JJ., concur.

Gutierrez, Jr. and Bidin, JJ., took no part

Republic of the PhilippinesSUPREME COURT

ManilaEN BANC

[G.R. No. 139615. May 28, 2004]

PEOPLE OF THE PHILIPPINES, appellee, vs. AMADEO TIRA and CONNIE TIRA, appellants.

D E C I S I O N

CALLEJO, SR., J.:

This is an appeal of the Decision[1] of the Regional Trial Court of Pangasinan, Branch 46, finding appellants Amadeo Tira and Connie Tira guilty beyond reasonable doubt of violating Section 16, in relation to Section 20, Article III of Republic Act No. 6425, known as the Dangerous Drugs Act of 1972, as amended by Rep. Act No. 7659, sentencing each of them

to suffer the penalty of reclusion perpetua and ordering each of them to pay a fine of P1,000.000.[2]

The Indictment

The appellants Amadeo Tira and Connie Tira were charged in an Information which reads:

That on or about March 9, 1998, in the Municipality of Urdaneta, province of Pangasinan and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together, did then and there willfully, unlawfully and feloniously have in their possession, control and custody the following:

- Three (3) (sic) sachets of shabu

- Six (6) pieces opened sachets of shabu residue

- One (1) brick of dried marijuana leaves

weighing 721 grams

- Six disposable lighter

- One (1) roll Aluminum Foil

- Several empty plastics (tea bag)

- Cash money amounting to P12,536.00 in

different denominations believed to be proceeds

of the contraband.

without first securing the necessary permit/license to possess the same.

CONTRARY to SEC. 8 in relation to Sec. 20 of RA 6425, as amended.[3]

The Case for the Prosecution[4]

In the evening of February 24, 1998, SPO3 Asidelio Manibog received a verbal instruction from the Chief of Police Superintendent Wilson R. Victorio to conduct surveillance operations on the house of Amadeo Tira and Connie Tira at Perez Extension Street because of reported rampant drug activities in the said area. Manibog formed a team composed of SPO1 Renato Cresencia, PO3 Reynaldo Javonilla, Jr. and PO3 Efren Abad de Vera to conduct the ordered surveillance.

At around 8:00 p.m., the group, clad in civilian clothes, arrived at Perez Extension Street. As they stationed themselves in the periphery of a store, they observed that more than twenty persons had gone in and out of the Tira residence. They confronted one of them, and asked what was going on inside the house. The person revealed that Amadeo Tira sold shabu, and

that he was a regular customer. The group went closer to the house and started planning their next move. They wanted to pose as buyers, but hesitated, for fear of being identified as PNP members. Instead, they stayed there up to 12:00 midnight and continued observing the place. Convinced that illegal activities were going on in the house, the policemen returned to the station and reported to P/Supt. Wilson R. Victorio. After hearing their report, P/Supt. Victorio instructed his men to make an affidavit of surveillance preliminary to an application for a search warrant.[5]

On March 6, 1998, SPO3 Asidelio Manibog, PO3 Efren Abad de Vera, SPO1 Renato Cresencia and PO2 Reynaldo Soliven Javonilla, Jr. executed an Affidavit of Surveillance, alleging, inter alia, that they were members of the Drug Enforcement Unit of Urdaneta, Pangasinan, and that in the evening of February 24, 1998, they confirmed reports of illegal drug-related activities in the house of the spouses Amadeo and Connie Tira.[6] On March 6, 1998[7] Police Chief Inspector Danilo Bumatay Datu filed an Application for a Search Warrant in the Municipal Trial Court of Urdaneta, Pangasinan, attaching thereto the affidavit of surveillance executed by his men and a sketch of the place to be searched.[8]

Satisfied with the testimonies of SPO3 Manibog, PO3 de Vera, SPO1 Cresencia and PO2 Javonilla, Jr., Judge Aurora A. Gayapa issued a search warrant commanding the applicants to make an immediate search of the Tira residence at anytime of the day or night, particularly the first room on the right side, and the two rooms located at Perez south, and forthwith seize and take possession of the following items:

1. Poor Mans Cocaine known as Shabu;

2. Drug-Usage Paraphernalia; and

3. Weighing scale.[9]

P/Sr. Inspector Ludivico Bravo, and as head of the team, with SPO3 Cariaga, PO3 Concepcion, Cario, Galima, Villaroya, Andaya, SPO1 Mario Tajon, SPO1 Asterio Dismaya, SPO1 Renato Cresencia, and PO3 Reynaldo Javonillo were directed to implement the search warrant.[10] They responded and brought Barangay Kagawad Mario Conwi to witness the search.[11] At 2:35 p.m. on March 9, 1998, the team proceeded to the Tira residence. The men found Ernesto Tira, the father of Amadeo, at the porch of the house. They introduced themselves and told Ernesto that they had a warrant authorizing them to search the premises. Ernesto led them inside. The policemen found the newly awakened Amadeo inside the first room[12] of the house.[13] With Barangay Kagawad Conwi and Amadeo Tira, the policemen proceeded to search the first room to the right (an inner room) and found the following under the bed where Amadeo slept:[14]

1. 9 pcs. suspected methamphetamine hydrochloride placed in heat-sealed transparent plastic sachets

2. roll aluminum foil

3. several empty plastic transparent

4. used and unused aluminum foil[15]

5. disposable lighters

6. 1 sachet of shabu confiscated from Nelson Tira[16]

They also found cash money amounting to P12,536 inside a shoulder bag placed on top of the television, in the following denominations:

1 pc. -P1,000.00 bill

4 pcs. - 500.00 bill

52 pcs. - 100.00 bill

36 pcs. - 50.00 bill

100 pcs. - 20.00 bill

53 pcs. - 10.00 bill

1 pc. - 5.00 bill

1 pc. - 1.00 coin[17]

The policemen listed the foregoing items they found in the house. Amadeos picture was taken while he was signing the said certification.[18] Ernesto (Amadeos father), also witnessed the certification.

A joint affidavit of arrest was, thereafter, executed by SPO3 Asidelio Manibog, SPO1 Mario C. Tajon, SPO1 Asterio T. Dismaya, SPO1 Renato M. Cresencia and PO3 Reynaldo S. Javonilla, Jr. for the apprehension of Amadeo Tira and Nelson Tira who were brought to the police station for custodial investigation. The articles seized were turned over to the PNP Crime Laboratory, Urdaneta Sub-Office, for examination.[19] In turn, a laboratory examination request was made to the Chief of the Philippine National Police Service-1, Sub-Office, Urdaneta, Pangasinan for the following:

a. Three (3) sachets of suspected methamphetamine hydrochloride approximately 0.5 grams;

b. Six (6) opened sachets of suspected methamphetamine hydrochloride (SHABU) residue;

c. Twenty-four (4) pieces of dried marijuana leaves sachet; and

d. One (1) heat-sealed plastic sachet of suspected methamphetamine hydrochloride confiscated from the possession of Nelson Tira.[20]

On March 10, 1998, P/Supt. Wilson R. Victorio executed a Compliance/Return of Search Warrant.[21]

On March 17, 1998, the PNP Crime Laboratory Group in Physical Science Report No. DT-057-98 reported that the test conducted by Police Superintendent/Chemist Theresa Ann Bugayong-Cid,[22] yielded positive for methamphetamine hydrochloride (shabu) and marijuana. The report contained the following findings:

A1 to A3, B1 to B6, E POSITIVE to the test for methamphetamine hydrochloride (shabu), a regulated drug.

C and D1 to D4 POSITIVE to the test for marijuana, a prohibited drug.

CONCLUSION:

Specimens A1 to A3, B1 to B6 and E contain methamphetamine hydrochloride (Shabu) and specimens C and D1 to D24 contain marijuana.[23]

A criminal complaint was filed by P/Supt. Wilson R. Victorio against Amadeo Tira and Connie Tira on March 10, 1998 for violation of Rep. Act No. 6425, as amended.[24] After finding probable cause, Assistant Provincial Prosecutor Rufino A. Moreno filed an Information against the Tira Spouses for illegal possession of shabu and marijuana, in violation of Section 8, in relation to Section 20 of Rep. Act No. 6425.[25] A warrant of arrest was issued against Connie Tira on May 13, 1998. However, when the policemen tried to serve the said warrant, she could not be found in the given address.[26] She was arrested only on October 6, 1998.[27]

During the trial, the court conducted an ocular inspection of the Tira residence.[28]

The Case for Accused Amadeo Tira[29]

Amadeo Tira denied the charge. He testified that he was a furniture delivery boy[30] who owned a one-storey bungalow house with two bedrooms and one masters bedroom. There was also another room which was divided into an outer and inner room; the latter room had no windows or ventilation. The house stood twenty meters away from Perez Extension Street in Urdaneta, Pangasinan, and could be reached only by foot.[31] He leased the room located at the western portion to his nephew Chris Tira[32] and the latters live-in-partner Gemma Lim for four hundred pesos a month.[33] Chris and Gemma were engaged in the buying and selling of bananas. He denied that there were young men coming in and out of his house.[34]

In the afternoon of March 6, 1998, he was in his house sleeping when the policemen barged into his house. He heard a commotion and went out of the room to see what it was all about, and saw police officers Cresencia, Javonilla and Bergonia, searching the room of his nephew, Chris Tira. He told them to stop searching so that he could contact his father, Ernesto, who in turn, would call the barangay captain. The policemen continued with their search. He was then pulled inside the room and the policemen showed him the items they allegedly found.[35]

Barangay Kagawad Mario Conwi testified that on March 9, 1998, while he was at Calle Perez, Urdaneta, Pangasinan, Capt. Ludivico Bravo asked to be accompanied to the Tira residence. Capt. Bravo was with at least ten other policemen. As they parked the car at Calle Perez, the policemen saw a man running towards the direction of the ricefields. Kagawad

Conwi and some of the policemen chased the man, who turned out to be Nelson Tira. One of the policemen pointed to a sachet of shabu which fell to the ground near Nelson. The policemen arrested him and proceeded to the house of Amadeo Tira to serve the warrant.[36] When they reached the house, the other policemen were waiting. He saw Amadeo and Connie Tira sitting by the door of the house in the sala. Thereafter, he and the policemen started the search.[37] They searched the first room located at the right side (if facing south),[38] and found marijuana, shabu, money and some paraphernalia.[39] An inventory of the items seized was made afterwards, which was signed by Capt. Bravo and Ernesto Tira.[40]

Alfonso Gallardo, Amadeos neighbor, testified that he was the one who constructed the Tira residence and that the house initially had two rooms. The first room was rented out, while the second room was occupied by the Spouses Amadeo and Connie Tira.[41] Subsequently, a divider was placed inside the first room.[42] He also testified that his house was only three (3) meters away from that of the Tiras, and that only a toilet separated their houses.[43] He denied that there were many people going in and out of the Tira residence.[44]

The Ruling of the Trial Court

The trial court rendered judgment on September 24, 1998, finding Amadeo Tira guilty beyond reasonable doubt of illegal possession of 807.3 grams of marijuana and 1.001 gram of shabu. The decretal portion of its decision is herein quoted:

WHEREFORE, JUDGMENT is hereby rendered CONVICTING beyond reasonable doubt accused AMADEO TIRA for Illegal Possession of Marijuana weighing 807.3 grams and shabu weighing 1.001 gram penalized under Article III, Sections 16 and 20, of Republic Act 6425, known as [the] Dangerous Drugs Act of 1972, as amended by Republic Act 7659. The Court sentences Amadeo Tira to suffer the penalty of Reclusion Perpetua and a fine of P1,000,000.00.

The amount of P12,536.00 is hereby forfeited in favor of the government which forms part of the fine; the marijuana weighing 807.3 grams and shabu weighing 1.001 gram are hereby forfeited in favor of the government; the disposable lighter and the aluminum foil are likewise forfeited in favor of the government.

The Branch Clerk of Court of this Court is hereby ordered to prepare the mittimus.

The Warden, Bureau of Jail Management and Penology (BJMP) is hereby ordered to transmit the person of Amadeo Tira to the National Bilibid Prison with proper escort within fifteen (15) days upon receipt of this Order.[45]

The trial court upheld the validity of Search Warrant No. 3 issued by Judge Aurora Gayapa. It found Amadeos defense, that the room where the items were seized was rented out to the couple Cris Tira and Gemma Lim, unsubstantiated. It held that Amadeo, as owner of the house, had control over the room as well as the things found therein and that the inner room was a secret and practical place to keep marijuana, shabu and related paraphernalia.[46]

Amadeo appealed the decision.[47]

The Case Against Connie Tira

After her arrest, Connie filed a motion to quash search warrant,[48] alleging that the police officers who applied for the said warrant did not have any personal knowledge of the reported illegal activities. She contended that the same was issued in violation of Section 4, Rule 126 of the Rules of Court, as the judge issued the search warrant without conducting searching questions and answers, and without attaching the records of the proceedings. Moreover, the search warrant issued was in the nature of a general warrant, to justify the fishing expedition conducted on the premises.

On October 26, 1998, the presiding judge ordered Judge Aurora A. Gayapa to forward the stenographic notes of the applicant and the witnesses.[49] Connie was arraigned on November 9, 1998, pending the resolution of the motion. She pleaded not guilty to the charge of illegal possession of shabu and marijuana.[50] The trial court thereafter issued an Order on November 11, 1998, denying the motion to quash.[51] It did not give credence to the allegations of Connie Tira, and found that Judge Gayapa issued the search warrant after conducting searching questions, and in consideration of the affidavit of witness Enrique Milad.

Connie testified that she was engaged in the business of buying and selling of fruits, while her husband was employed at the Glasshouse Trading. One of the rooms in their house was occupied by their three boarders, two male persons and one female.

In the afternoon of March 9, 1998, she and her husband Amadeo were in their house, while their boarders were in their respective rooms. At 2:30 p.m., she was in the kitchen taking care of her one-year-old child. She had other three children, aged eight, four, and three, respectively, who were watching television. Her husband Amadeo was sleeping in one of the rooms. Suddenly, five policemen barged into their house and searched all the rooms. The policemen found and seized articles in the room occupied by one of their boarders. They arrested Amadeo, and her brother-in-law, Nelson Tira, and brought them to the police station. The boarders, however, were not arrested.

Joy Fernandez, a neighbor of the Tiras, lived approximately ten meters away from the latter. Since they had no television, she frequently went to her neighbors house to watch certain programs. In the afternoon of March 9, 1998, she was at the Tira residence watching Mirasol, while Connie was in the kitchen nursing her baby. Suddenly, about five or ten persons ran inside the house and handcuffed Amadeo Tira.[52]

The Ruling of the Trial Court

The trial court found Connie Tira guilty beyond reasonable doubt of illegal possession of 807.3 grams of marijuana and 1.001 gram of shabu. The dispositive portion of the decision reads:

WHEREFORE, JUDGMENT is hereby rendered CONVICTING beyond reasonable doubt accused CONNIE TIRA for Illegal Possession of Marijuana weighing 807.3 grams and shabu weighing 1.001 gram penalized under Article III, Section 16 and 20, of Republic Act 6425, known as [the] Dangerous Drugs Act of 1972, as amended by Republic Act 7659, the Court sentences Connie Tira to suffer the penalty of Reclusion Perpetua and a fine of P1,000,000.00.

The amount of P12,536.00 is hereby forfeited in favor of the government which forms part of the fine; the marijuana weighing 807.3 grams and shabu weighing 1.001 gram are hereby forfeited in favor of the government; the disposable lighter and the aluminum foil are, likewise, forfeited in favor of the government.

The Warden, Bureau of Jail Management and Penology (BJMP) is hereby ordered to transmit the person of Connie Tira to the National Bilibid Prisons with proper escort within fifteen (15) days upon receipt of his Order.[53]

The trial court did not believe that Connie Tira had no knowledge, control and possession of the shabu and marijuana found in the first or inner room of their house. It stressed that Connie and Amadeo Tira jointly controlled and possessed the shabu and marijuana that the policemen found therein. It ratiocinated that it was unusual for a wife not to know the existence of prohibited drugs in the conjugal abode. Thus, as husband and wife, the accused conspired and confederated with each other in keeping custody of the said prohibited articles.[54] The court also held that Connie Tiras flight from their house after the search was an indication of her guilt. Connie, likewise, appealed the decision.[55]

The Present Appeal

In their brief, the appellants Amadeo and Connie Tira assigned the following errors committed by the trial court:

I

THE TRIAL COURT ERRED IN CONVICTING ACCUSED-APPELLANTS DESPITE FAILURE ON THE PART OF THE PROSECUTION TO PROVE THEIR GUILT BEYOND REASONABLE DOUBT.

II

THE TRIAL COURT ERRED IN NOT HOLDING THAT THE SEARCH WAS ILLEGALLY MADE.

III

ASSUMING THAT ACCUSED-APPELLANT AMADEO TIRA IS GUILTY AS CHARGED, THE TRIAL COURT ERRED IN HOLDING THAT THERE WAS A CONSPIRACY BETWEEN HIM AND HIS WIFE CONNIE TIRA.[56]

The Court shall resolve the assigned errors simultaneously as they are interrelated.

The appellants contend that the search conducted by the policemen in the room occupied by Chris and Gemma Lim, where the articles and substances were found by the policemen, was made in their absence. Thus, the search was made in violation of Section 7, Rule 126 of the Rules of Criminal Procedure, which provides:

SEC. 7. Search of house, room, or premise, to be made in presence of two witnesses. No search of house, room, or any other premise shall be made except in the presence of the lawful occupant thereof or any member of his family or in the absence of the latter, in the presence of two witnesses of sufficient age and discretion residing in the same locality.

The appellants posit that the articles and substances found by the policemen in their house are inadmissible in evidence, being the fruits of a poisonous tree. Hence, they contend, they should have been acquitted of the crime charged. The appellants further assert that the prosecution failed to prove that they owned the prohibited drugs, and that the same were in their possession and control when found by the policemen. They insist that it cannot be presumed that they were in control and possession of the said substances/articles simply because they owned the house where the same were found, considering that the room was occupied by Chris Tira and his live-in partner, Gemma Lim.

The appellant Connie Tira avers that she never fled from their house after the policemen had conducted the search. Neither was she arrested by the policemen when they arrested her husband.

The appeals have no merit.

Contrary to the appellants claim, appellant Amadeo Tira was present when the policemen searched the inner room of the house. The articles and substances were found under the bed on which the appellant Amadeo Tira slept. The policemen did not find the said articles and substances in any other room in the house:

Q So when you reached the house of Amadeo Tira at the Tiras compound, you saw the father and you told him you are implementing the Search Warrant and your group was allowed to enter and you are allowed to search in the presence of Amadeo Tira?

A Yes, Sir.

PROS. DUMLAO

Q In the course of your search, what did you find?

WITNESS:

A We found out suspected marijuana leaves, Sir.

Q Where, in what particular place did you find?

A Under the bed inside the room of Amadeo Tira, Sir

Q What else did you find aside from marijuana leaves?

A We also find suspected sachet of shabu, Sir.

Q What else?

A Lighter, Sir.

COURT:

Q If that shabu will be shown to you, could you identify the same?

WITNESS:

A Yes, Sir.

Q About the marijuana leaves, if shown to you could you identify the same?

A Yes, Sir.

PROS. DUMLAO:

Q What else did you find out aside from the marijuana leaves, shabu and lighter?

A I have here the list, Sir.

One (1) brick of marijuana

24 pcs. tea bag of marijuana

9 pcs. sachets of suspected shabu

6 disposable lighters

1 roll of aluminum foil

several empty plastic; several used

and unused aluminum foil

one (1) sachet of shabu confiscated from Nelson Tira; and

P12,536.00 cash in different denominations proceeds of the contrand (sic).

COURT:

Q Where did you find the money?

A Near the marijuana at the bag, Sir.

Q About the money, could you still identify if shown to you?

A Yes, Sir.

Q When you found shabu, lighter, marijuana, and money, what did you do?

A We marked them, Sir.

Q All of the items?

A Only the marijuana, Sir.

Q What mark did you place?

A My signature, Sir.[57]

PROS. TOMBOC:

Q And when you were allowed to enter the house, did you notice who was present?

A I noticed the presence of Connie Tira, Sir.

Q When you said Connie Tira, is she the same Connie Tira the accused in this case?

A Yes, Sir, she was taking care of the baby.

Q Who else?

A We also noticed the presence of Amadeo Tira, Sir.

Q What was he doing there?

A He was newly awake, Sir.

Q Upon entering the house, what did you do?

A We entered and searched the first room, Sir.

Q What did you find out?

A Shabu and Marijuana and paraphernalia, Sir.

Q Are you one of those who entered the house?

A Yes, Sir.

Q Can you mention to the Honorable Court those items that you searched in the house of Connie Tira and Amadeo Tira?

A As per in (sic) our records, we found three (3) sachets containing suspected Methamphetamine Hydrochloride Shabu residue; one (1) brick of suspected dried marijuana leaves weighing more or less 750 grams; twenty-four (24) tea bags containing dried marijuana leaves; six (6) disposable lighter; one (1) roll aluminum foil; several empty plastics

(tea bag); several used and unused aluminum foil; and cash money amounting to P12,536.00 in different denominations believe[d] to be proceeds of the contraband, Sir.

Q You said you recovered one (1) brick of marijuana leaves, showing to you a (sic) one (1) brick suspected to be marijuana leaves, is this the one you are referring to?

A Yes, Sir, this is the one.[58]

Appellant Amadeo Tira was not the only witness to the search; Kagawad Mario Conwi and Ernesto Tira, Amadeos father, were also present. Ernesto Tira even led the policemen inside the house. This is evidenced not only by the testimony of Kagawad Conwi, but also by the certification signed by the appellant himself, along with Kagawad Conwi and Ernesto Tira.[59]

The trial court rejected the testimony of appellant Amadeo Tira that the inner room searched by the policemen was occupied by Chris Tira and his girlfriend Gemma Lim with the following encompassing disquisition:

The defense contention that a couple from Baguio City first occupied the first room, the Court is not persuaded because they did not present said businessmen from Baguio City who were engaged in vegetable business. Secondly, the same room was rented by Chris Tira and Gemma Lim. Chris Tira and Gemma Lim, engaged in banana business, were not presented in Court. If it were true that Chris Tira and Gemma Lim were the supposed lessees of the room, they should have been apprehended by the searching party on March 9, 1998, at about 2:30 p.m. There was no proof showing that Chris Tira and Gemma Lim ever occupied the room, like personal belongings of Chris Tira and Gemma Lim. The defense did not even show proof showing that Chris Tira reside in the first room, like clothings, toothbrush, soap, shoes and other accessories which make them the residents or occupants of the room. There were no kitchen plates, spoons, powder, or soap evidencing that the said room was occupied by Chris Tira and Gemma Lim. Amadeo Tira contended that Chris Tira and Gemma Lim are engaged in banana business. There are no banana stored in the room at the time of the search and both of them were out of the room at the time of the search. And why did not Amadeo Tira supply the police officers of the personal identities and address where they could find Chris Tira and Gemma Lim at the time of the search. If they were banana dealers, they must be selling their banana in the market and they could have pointed them in the market.[60]

We are in full accord with the trial court. It bears stressing that the trial court conducted an ocular inspection of the house of the appellants, and thus, had first hand knowledge of the layout of the house. Besides, the testimony of the appellant Amadeo Tira, that the inner room was occupied by Chris Tira and Gemma Lim who were not there when the search was conducted, is belied by the testimony of the appellant Connie Tira that the room was occupied by two male and one female boarders who were in the room when the policemen searched it. Thus:

Q You said that while taking care of your baby, several policemen barged [sic] your house?

A Yes, Sir.

Q And they proceeded to your room where your husband was sleeping at that time?

A Yes, Sir.

Q And it is in that room where your husband was sleeping and where those articles were taken?

A No, Sir.

Q Where are (sic) those things came (sic) from?

A At the room where my boarders occupied, Sir.

Q So, at that time where were those boarders?

A They were inside their room, Sir.

Q How many of them?

A Two (2) male persons and one woman, Sir.

Q And do you know their whereabout[s], Madam Witness?

A No more, Sir.

Q When did they leave, Madam Witness?

A At that time, they left the house, Sir.

Q They were not investigated by the police?

A No, Sir.[61]

We agree with the finding of the trial court that the only occupants of the house when the policemen conducted their search were the appellants and their young children, and that the appellants had no boarders therein.

Before the accused may be convicted of violating Section 8 of Republic Act No. 6425, as amended by Rep. Act No. 7659, the prosecution is burdened to prove beyond reasonable doubt the essential elements of the crime, viz: (1) the actual possession of an item or object which is identified to be a prohibited drug; (2) such possession is not authorized by law; and, (3) the accused freely or consciously possessed the said drug.[62]

The essential elements of the crime of possession of regulated drugs are the following: (a) the accused is found in possession of a regulated drug; (b) the person is not authorized by law or by duly constituted authorities; and, (c) the accused has knowledge that the said drug is a regulated drug. This crime is mala prohibita, and, as such, criminal intent is not an essential element. However, the prosecution must prove that the accused had the intent to possess (animus posidendi) the drugs. Possession, under the law, includes not only actual possession, but also constructive possession. Actual possession exists when the drug is in

the immediate physical possession or control of the accused.[63] On the other hand, constructive possession exists when the drug is under the dominion and control of the accused or when he has the right to exercise dominion and control over the place where it is found.[64] Exclusive possession or control is not necessary.[65] The accused cannot avoid conviction if his right to exercise control and dominion over the place where the contraband is located, is shared with another.[66]

Thus, conviction need not be predicated upon exclusive possession, and a showing of non-exclusive possession would not exonerate the accused.[67] Such fact of possession may be proved by direct or circumstantial evidence and any reasonable inference drawn therefrom. However, the prosecution must prove that the accused had knowledge of the existence and presence of the drug in the place under his control and dominion and the character of the drug.[68] Since knowledge by the accused of the existence and character of the drugs in the place where he exercises dominion and control is an internal act, the same may be presumed from the fact that the dangerous drug is in the house or place over which the accused has control or dominion, or within such premises in the absence of any satisfactory explanation.[69]

In this case, the prohibited and regulated drugs were found under the bed in the inner room of the house of the appellants where they also resided. The appellants had actual and exclusive possession and control and dominion over the house, including the room where the drugs were found by the policemen. The appellant Connie Tira cannot escape criminal liability for the crime charged simply and merely on her barefaced testimony that she was a plain housewife, had no involvement in the criminal actuations of her husband, and had no knowledge of the existence of the drugs in the inner room of the house. She had full access to the room, including the space under the bed. She failed to adduce any credible evidence that she was prohibited by her husband, the appellant Amadeo Tira, from entering the room, cleaning it, or even sleeping on the bed. We agree with the findings and disquisition of the trial court, viz:

The Court is not persuaded that Connie Tira has no knowledge, control and possession of the shabu and marijuana (Exhibits M, N, O and P) found in their room. Connie Tira and Amadeo Tira jointly control and possess the shabu (Exhibits M and N) and marijuana (Exhibits O and P) found in the room of their house. It is unusual for a wife not to know the existence in their conjugal abode, the questioned shabu and marijuana. The husband and wife (Amadeo and Connie) conspired and confederated with each other the keeping and custody of said prohibited articles. Both of them are deemed in possession of said articles in violation of R.A. 6425, Section 8, in relation to Section 20.

The Crimes Committed by the Appellants

The trial court convicted the appellants of violating Section 16, in relation to Section 20, of Rep. Act No. 6425, as amended. The Office of the Solicitor General (OSG) asserts that the appellants should be convicted of violating Section 8 of Rep. Act No. 6425, as amended. We do not agree with the trial court and the OSG. We find and so hold that the appellants are guilty of two separate crimes: (a) possession of regulated drugs under Section 16, in relation to Section 20, of Rep. Act No. 6425, as amended, for their possession of methamphetamine hydrochloride, a regulated drug; and, (b) violation of Section 8, in relation to Section 20 of the law, for their possession of marijuana, a prohibited drug. Although only one Information was

filed against the appellants, nevertheless, they could be tried and convicted for the crimes alleged therein and proved by the prosecution. In this case, the appellants were charged for violation of possession of marijuana and shabu in one Information which reads:

That on or about March 9, 1998, in the Municipality of Urdaneta, province of Pangasinan, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together, did then and there willfully, unlawfully and feloniously have in their possession, control and custody the following:

- Three (3) pieces (sic) sachets of shabu

- Six (6) pieces opened sachets of shabu residue

- One (1) brick of dried marijuana leaves weighing 721 grams

- Twenty-four (24) tea bags of dried marijuana leaves weighing 86.3 grams

- Six [6] disposable lighter

- One (1) roll Aluminum foil

- Several empty plastics (tea bag)

- Cash money amounting to P12,536.00 in different denominations believed to be proceeds of the contraband.

without first securing the necessary permit/license to posses[s] the same.

CONTRARY TO SEC. 8, in relation to Sec. 20 of R.A. 6425, as amended.[70]

The Information is defective because it charges two crimes. The appellants should have filed a motion to quash the Information under Section 3, Rule 117 of the Revised Rules of Court before their arraignment. They failed to do so. Hence, under Rule 120, Section 3 of the said rule, the appellants may be convicted of the crimes charged. The said Rule provides:

SEC. 3. Judgment for two or more offenses. - When two or more offenses are charged in a single complaint or information but the accused fails to object to it before trial, the court may convict him of as many offenses as are charged and proved, and impose on him the penalty for each offense, setting out separately the findings of fact and law in each offense.

The Proper Penalties On the Appellants

The crime of violation of Section 8, Article II of Rep. Act No. 6425, as amended, for illegal possession of 807.3 grams of marijuana, a prohibited drug, is punishable by reclusion perpetua to death. Considering that there are no qualifying circumstances, the appellants are sentenced to suffer the penalty of reclusion perpetua, conformably to Article 63 of the Revised Penal Code and are ordered to pay a fine of P500,000.00.

Under Section 16, Article III of Rep. Act No. 6425, as amended, the imposable penalty of possession of a regulated drug, less than 200 grams, in this case, shabu, is prision correccional to reclusion perpetua. Based on the quantity of the regulated drug subject of the offense, the imposable penalty shall be as follows:

QUANTITY IMPOSABLE PENALTY

Less than one (1) gram to 49.25 grams prision correccional

49.26 grams to 98.50 grams prision mayor

98.51 grams to 147.75 grams reclusion temporal

147.76 grams to 199 grams reclusion perpetua

Considering that the regulated drug found in the possession of the appellants is only 1.001 grams, the imposable penalty for the crime is prision correccional. Applying the Indeterminate Sentence Law, the appellants are sentenced to suffer an indeterminate penalty of from four (4) months and one (1) day of arresto mayor in its medium period as minimum, to three (3) years of prision correccional in its medium period as maximum, for violation of Section 16 of Rep. Act No. 6425, as amended.

IN LIGHT OF ALL THE FOREGOING, appellants Amadeo and Connie Tira are found GUILTY beyond reasonable doubt of violating Section 8, Article II of Rep. Act No. 6425, as amended, and are hereby sentenced to suffer the penalty of reclusion perpetua, and ORDERED to pay a fine of P1,000,000.00. The said appellants are, likewise, found GUILTY beyond reasonable doubt of violating Section 16, Article III of Rep. Act No. 6425, as amended, and are sentenced to suffer an indeterminate penalty of from Four (4) Months and One (1) Day of arresto mayor in its medium period as minimum, to Three (3) years of prision correccional, in its medium period, as maximum.

No costs.

SO ORDERED.

Vitug, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Azcuna, and Tinga, JJ., concur.

Davide, Jr., C.J., on official leave.

Puno, J., on official leave.

Republic of the PhilippinesSUPREME COURT

ManilaFIRST DIVISION

G.R. No. 168773 October 27, 2006

ELIZA ABUAN, Petitioner,

- versus –

PEOPLE OF THE PHILIPPINES, Respondent. x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - xD E C I S I O N

CALLEJO, SR., J.:

Before the Court is a Petition for Review on Certiorari of the Decision[1] of the Court of Appeals (CA) in CA-G.R. CR No. 25726 and Resolution[2] denying the motion for reconsideration thereof. The CA affirmed the Decision[3] of the Regional Trial Court (RTC), Branch 41, Dagupan City in Criminal Case No. 98-02337-D, convicting Eliza T. Abuan of

violating Section 16, Article III of Republic Act (R.A.) No. 6425, as amended, otherwise known as The Dangerous Drugs Act of 1972.

The Antecedents

A criminal complaint was filed in the Municipal Trial Court (MTC) of Calasiao, Pangasinan charging Abuan with violating R.A. No. 6425, as amended. On May 8, 1998, she filed a motion to quash the criminal complaint, praying that pending the resolution of her motion, she be allowed to post bail without waiving her right to question her arrest and assail Search Warrant No. 98-62.[4] The public prosecutor conformed to the motion. Thus, the motion was granted and bail was fixed at P60,000.00.[5]

The MTC found probable cause against Abuan for violation of Section 16, Article III of R.A. No. 6425, as amended, and recommended the filing of an Information against her. It ordered the elevation of the records to the RTC for further proceedings.

On November 12, 1998, an Amended Information was filed in the RTC of Dagupan City, charging Abuan with violating Section 16, Article III of R.A. No. 6425, as amended. The inculpatory portion of the Information reads:

That on or about 8:45 oclock in the morning of May 6, 1998 at Brgy, Lasip, [M]unicipality of Calasiao, [P]rovince of Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused did then and there, willfully, unlawfully and feloniously has in her possession, custody and control of the following to wit:

Fifty seven (57) small heat-sealed plastic sachets of met[h]aphetamine hydrochloride (shabu) weighing 5.67 grams.

one (1) roll aluminum foil and assorted plastic (luminous) sachets.without authority to possess the same.

CONTRARY to Art. III, Section 16 of R.A. 6425, as amended.[6]

During the arraignment on November 12, 1998, the accused, assisted by counsel, pleaded not guilty to the charge.[7] During the pre-trial on November 19, 1998, Abuan rejected the prosecutions proposal for her to admit the validity of Search Warrant No. 98-62, and that, in the enforcement thereof, 57 sachets of shabu were found in her house and later confiscated by the policemen.[8] She maintained that the warrant was invalid and that any material allegedly confiscated from her house was inadmissible in evidence.

The court set the initial presentation of evidence by the prosecution on December 3, 1998. However, on said date, accused filed a Motion to Suppress Evidence, alleging that there was no probable cause for the issuance of Search Warrant No. 98-62; the applicant, Cesar Ramos, had no personal knowledge of his claim that she had in her possession methamphetamine hydrochloride (shabu) and other drug paraphernalia; Marissa Gorospe was a fictitious person, and her testimony was fabricated to convince the Executive Judge to make a finding of probable cause required for the issuance of a search warrant; and the Executive Judge failed to ask searching questions and elicit from Gorospe the particularity of the alleged paraphernalia in Abuans possession. Abuan asserted that since the search

warrant is void, whatever evidence was discovered as a result of the search conducted based on the warrant was inadmissible in evidence.[9]

Instead of allowing the accused to present her evidence in support of her motion, the court declared that any such evidence may be adduced at the trial.[10] The Case for the Prosecution

At around 8:30 a.m. on May 5, 1998, SPO2 Marcelino Gamboa and SPO2 Beliguer de Vera of the Calasiao Police Station received information from a confidential informant that Abuan was conducting illegal drug activities in her house at Barangay Lasip, Calasiao, Pangasinan. Acting on the said information, Gamboa and de Vera conducted surveillance-monitoring operations on her residence, three times for more than an hour. They saw more or less 20 people who were coming in and out of Abuans house. According to the informant, these people were drug addicts,[11]and Abuan was a known drug pusher.[12] On the same day, the officers, through SPO3 Cesar Ramos, applied for a warrant[13] with Executive Judge Eugenio G. Ramos of the RTC in Lingayen, Pangasinan, to search the house of Abuan for violation of Section 16, Article III of R.A. No. 6425, as amended, and the seizure of methamphetamine hydrochloride (shabu), weighing scale, aluminum foil, and burner.

The application was docketed as Search Warrant No. 98-62. To establish probable cause for the issuance of a search warrant, Ramos presented their informant, Marissa Gorospe, who was subjected to searching questions by the Executive Judge.[14]

Gorospe testified that she was a resident of Barangay Sapang, Manaoag, Pangasinan. She knew Abuan because they were employed as dealers of Avon Cosmetics. Abuan was a prominent personality in Barangay Lasip.[15] Her unnumbered house is a green bungalow-type, cemented and decorated with ornamental plants up front. She visited Abuan in her house at least three to four times a week.[16] She first came upon the drugs in Abuans house when the latter invited her to a jamming and drinking session. She refused because she had to go home to Barangay Sapang, Manaoag, Pangasinan, a place of considerable distance from Calasiao.[17] Abuan then suggested that they use the shabu that she keptinside her bedroom instead. Abuan kept a substantial amount of shabu in her house and sold it.[18] The informant further narrated that several people, including teenagers, arrived in the house of Abuan and bought the substance.[19] During her visits, she observed that Abuan placed shabu inside plastic bags. She also saw weighing scales and paraphernalias used in sniffing shabu. Being a mother herself, she did not want teenagers and her children to become drug addicts.[20] Gorospe identified and affirmed the truth of the contents of her deposition.[21]

The Executive Judge found probable cause and issued Search Warrant No. 98-62 which reads:

TO ANY OFFICER OF THE LAW:

G R E E T I N G S :

It appearing to the satisfaction of the undersigned after examining under oath thru searching questions on the applicant, SPO3 Cesar A. Ramos, PNP, and his witnesses that there is

probable cause to believe that the respondent is in possession without any authority to do so in violation of R.A. 6425 of the following:

Met[h]amphetamine Hydrochloride (shabu)

TooterWeighing ScaleAluminum FoilBurner

which she keeps and conceals in her house premises at Brgy. Lasip, Calasiao, Pangasinan, which should be seized and brought to the undersigned.

YOU ARE HEREBY COMMANDED to make an immediate search at any time of the day or night and take possession of the above-described properties and bring them to the undersigned to be dealt with as the law directs.

This Search Warrant shall be valid only for ten (10) days from its issuance, thereafter, the same shall be void.[22]

On May 6, 1998, police operatives composed of Col. Fidel Posadas, Major Froilan Perez, SPO2 Gamboa, SPO2 Madrid, SPO2 de Vera, PO2 Tomelden, PO2 Rosario, PO3 Ubando, PO1 Moyano and PO3 Vallo went to Barangay Lasip to enforce the search warrant. However, before proceeding to Abuans residence, the policemen invited Barangay Captain Bernardo Mangaliag and Kagawad Miguel Garcia of Barangay Lasip to witness the search.

Upon arriving at the premises, Officers De Vera, Gamboa and Garcia and Mangaliag entered the house; the rest of the policemen remained outside. Mangaliag introduced the police officers to Abuan who presented Search Warrant No. 98-62 to her. Abuan read the warrant and permitted the officers to conduct the search.[23]

De Vera, Mangaliag, Gamboa and Garcia entered the bedroom and found 57 sachets of suspected shabu, one roll of aluminum foil and assorted luminous plastic sachets in the drawer just beside Abuans bed.[24] The police officers confiscated all these and brought them, along with Abuan, to the police station where an inventory of the items was made. Mangaliag and Garcia affixed their signatures on the inventory/receipt,[25] but Abuan refused to sign it.[26]

The police officers prepared a certification of orderly search which Garcia and Mangaliag also signed. Abuan likewise refused to sign the certification.[27] The police officers requested the PNP Crime Laboratory Unit of Lingayen, Pangasinan to conduct a laboratory examination on the confiscated substance.[28] According to the laboratory examination conducted by P/Supt. Theresa Ann Bugayong CID, Regional Chief Chemist, the 57 sachets of the suspected shabu weighing 5.67 grams gave positive results for the presence of methamphetamine hydrochloride, a regulated drug.[29]

After presenting its witnesses, the prosecution offered in evidence Search Warrant No. 98-62, the Receipt of the Property Seized, the Physical Science Report and the articles

confiscated from Abuans house.[30] However, Abuan objected to the admission of the search warrant and the articles confiscated based thereon on the ground that the warrant was issued without probable cause.[31] The court admitted the documentary evidence of the prosecution subject to the comment or objection interposed by accused and the eventual determination of their probative weight.[32]

The Case for the Accused

Abuan testified that she was jobless in 1998. Her parents and her sister Corazon Bernadette sent her money from Canada once or twice a month to support her and her daughters. It was her father who spent for the education of her daughters.[33] She was married to Crispin Abuan, a policeman, but they separated in 1997.[34] She did not know any person by the name of Marissa Gorospe. She did not work for Avon Cosmetics nor used any of its products.[35]

At around 8:30 a.m. on May 6, 1998, she was with her two daughters, 21-year old Ediliza Go and 9-year old Mae Liza Abuan.[36] They were still in bed inside their room. Suddenly, four armed men barged into their house and declared a raid.[37] About eight to ten others were outside her house. She inquired if they had a search warrant but she was not shown any.[38] The men searched her house for about 10 to 15 minutes and turned up with nothing.[39] Some of the men went out of the house and boarded a jeepney. The men outside again went into the bedroom and came out with powder placed in a plastic.[40] At this instance, Barangay Captain Bernardo Mangaliag was brought to the scene and was shown the powder substance recovered from her bedroom. She refused to sign the inventory and receipt of the property seized and the certification of orderly search. However, Mangaliag signed the same.[41]

She declared that the sachets/substances which the policemen claimed to have found in her house were merely planted to implicate her. The raid as well as the charge against her were instigated by her brother Arsenio Tana, who was enraged when she refused his demand to entrust the properties of the family to the care of his son. It appears that Tana carried out his threat to have her house raided since the policemen did come to her house on May 6, 1998.[42] Her brother was by the gate of her house at the time of the raid.

Abuan also testified that, during the raid, she saw Tana talking to the police officers who arrested her. Abuan also declared that the money kept inside a box in her room amounting to P25,000.00 (US$1,100.00) given by her sister Corazon Bernardino had gone missing after the raid.[43] She did not file any charge for the loss of her money because she was scared. She did not know who took it.

Barangay Captain Robert Calachan of Barangay Sapang, Manaoag, Pangasinan and Mercedes Carvajal, an employee of Avon Cosmetics in Dagupan holding the position of team leader, testified for accused.

Calachan declared that he was born in Barangay Sapang and never left the place. He was familiar with the residents of the small barangay.[44] He issued a certification[45] stating that as per record of this barangay, a certain Marissa Gorospe is not a resident of this barangay. Before he signed the certification, he inquired from the barangay members if they knew a Marissa Gorospe, and he was told that no one by that name was a transient.[46]

Carvajal, for her part, testified that, based on the certification dated November 12, 1998 of Dagupan City Avon Branch Manager Gigi dela Rosa, Marissa Gorospe is not a registered dealer of Avon Dagupan Branch based on our records. She did not know any Avon Cosmetics employee or dealer named Marissa Gorospe in Pangasinan. She further testified that she had been a team leader/dealer of Avon Cosmetics for 21 years already, and that Abuan was not such a dealer/employee. On cross-examination, she declared that she was a team leader of Avon Cosmetics (Dagupan Branch), and thus had no participation in the preparation of the certification of Gigi dela Rosa and was not in a position to know if the certification was correct.

On March 28, 2001, the trial court rendered a decision finding accused guilty of the charge. The dispositive portion reads:

WHEREFORE, finding accused guilty beyond reasonable doubt of a violation of Section 15 (sic), Article 6425, she is hereby sentenced to suffer an imprisonment of TWO (2) YEARS, FOUR (4) MONTHS and ONE (1) DAY to FOUR (4) YEARS and TWO (2) MONTHS of PRISION CORRECTIONAL.

The prohibited drug and paraphernalia seized from the accused are hereby confiscated in favor of the government and should be turned over to the Dangerous Drugs Board for disposition in accordance with law.

SO ORDERED.[47]

The trial court declared that the testimonies of police officers Gamboa and de Vera should be accorded great weight and credence as they testified positively regarding what transpired during the raid. In contrast, the testimony of accused was self-serving, negative and feeble. She failed to prove that it was her brother who manipulated the unfortunate events. Neither was she able to prove ill motive on the part of the police officers who conducted a search in her house; hence, the presumption is that they regularly performed their duties. The failure of the accused to present her two daughters as witnesses amounted to suppression of evidence, giving rise to the presumption that if they had been presented, their testimonies would be adverse to her.

On the issue of the validity of the search warrant, the court ruled that there was probable cause for its issuance. The proceedings conducted by the Execute Judge relative to the application of the police for a search warrant, its issuance and implementation were valid, regular, and in accordance with the requirements of the law and Constitution.[48] The trial court declared that Gorospe may have lied about her address and being a dealer of Avon Cosmetics; however, it does not necessarily mean that she was a fictitious person. It explained that Gorospe may have lied a little in order to conceal herself for her protection, but the rest of her testimony constituted sufficient evidence of probable cause.

Abuan filed her motion for reconsideration dated April 16, 2001, which the court denied in an Order[49] dated May 10, 2001. She appealed the decision to the CA, where she averred that:

THE LOWER COURT GRAVELY ERRED WHEN IT CONSIDERED THE ALLEGED SHABU AND OTHER PARAPHERNALIA AS ADMISSIBLE EVIDENCE AGAINST THE ACCUSED

THEREBY DISREGARDING THE CONSTITUTIONAL PROHOBITION AGAINST FRUITS OF THE POISONOUS TREE.

IITHE LOWER COURT ERRED AND GRAVELY MISAPPRECIATED THE EVIDENCE AGAINST THE ACCUSED WHEN IT OVERLOOKED THE GLARING DISCREPANCIES IN THE TESTIMONIES OF THE SUPPOSED EYEWITNESSES.

Abuan insisted that the applicant failed to show probable cause for the issuance of Search Warrant No. 98-62. Marissa Gorospe is a fictitious person whose alleged testimony is fabricated and was used by the police officers to convince the Executive Judge that there was probable cause for the issuance of the search warrant when, in fact, there was none. The Executive Judge failed to ask Gorospe searching questions. Consequently, Search Warrant No. 98-62 is void and the substances and paraphernalia confiscated by the policemen are inadmissible in evidence. She further claimed that the testimonies of De Vera and Gamboa were pockmarked with inconsistencies and as such, the trial court should not have given them probative weight.

For its part, the Office of the Solicitor General (OSG) averred that the trial court merely confirmed Executive Judge Ramos finding of probable cause. Besides, appellant failed to file a motion to quash Search Warrant No. 98-62, hence, was estopped from assailing it and the search and seizure conducted thereafter. The OSG cited the ruling of this Court in Demaisip v. Court of Appeals.[50] It likewise claimed that the inconsistencies adverted to by appellant pertained merely to collateral matters and were not determinative of her guilt or innocence. As gleaned from the evidence of the prosecution, her defenses could not prevail over the evidence adduced by the prosecution.

The CA rendered judgment affirming the RTC decision. The fallo of the decision reads:

WHEREFORE, for lack of merit, the appeal is DISMISSED. The assailed Decision dated March 28, 1001 in Criminal Case No. 98-02337-D of the Regional Trial Court, Branch 41, Dagupan City convicting Eliza T. Abuan of violation of Section 16, Article III of Republic Act No. 6425, as amended, is AFFIRMED. Costs against the accused-appellant.

SO ORDERED.[51]

The appellate court ruled that the prosecution adduced proof beyond reasonable doubt of Abuans guilt for the crime charged. The alleged discrepancies in the testimonies of Gamboa and de Vera were peripheral matters. Moreover, Abuans failure to assail the legality of the search and seizure conducted by the policemen before her arraignment was equivalent to a waiver of her right to assail the search warrant. The CA cited the ruling of this Court in Malaloan v. Court of Appeals.[52]

Abuan filed a motion for reconsideration,[53] reiterating her argument that the search warrant is not valid. She also argued that she did not waive her right to assail the validity of the search warrant at her arraignment and during the trial. She maintained that the CA should not rely on the evaluation by the RTC of the witnesses credibility, and that the inconsistencies in the testimonies of the prosecution witnesses were on material relevant details.

The appellate court denied the motion in a Resolution[54] dated May 26, 2005 on its finding that no new and substantial matter was presented to warrant reconsideration thereof.[55]

In the instant petition, Abuan, now petitioner, asserts that

ITHE CA GRAVELY ERRED IN FINDING THE SEARCH WARRANT VALID DESPITE FAILURE TO COMPLY WITH THE REQUIREMENTS MANDATED BY THE CONSTITUTION.IITHE CA ERRED IN FINDING THAT THE ISSUE OF THE VALIDITY OF THE SEARCH WARRANT WAS DEEMED WAIVED AFTER ARRAIGNMENT.IIITHE CA ERRED IN CONSIDERING THE SHABU AND OTHER PARAPHERNALIA ALLEGEDLY TAKEN FROM THE PETITIONER AS ADMISSIBLE IN EVIDENCE.IVTHE CA ERRED IN AFFIRMING THE CONVICTION OF THE PETITIONER.[56]

Petitioner avers that the search warrant issued by the Executive Judge was void because the circumstances leading to its issuance were not based on probable cause but on mere fabrications. She points out that according to Gorospe, she became acquainted with petitioner and visited her in her house because of their employment with Avon Cosmetics. However, considering that she and Gorospe were never employed by Avon Cosmetics and were not even acquainted, such testimony is false. Thus, the search warrant should be declared invalid as it is based on the testimony of a fictitious person, a planted witness with a fabricated testimony and, consequently, any evidence discovered on the basis thereof should be suppressed and excluded in accordance with Section 3(2), Article III of the Constitution. Petitioner points out that with the inadmissibility of the shabu and other paraphernalia, the appellate court should have acquitted her of the charges by reason of the prosecutions failure to prove the commission of the crime beyond reasonable doubt.

Petitioner insists that, based on the records, she sought to suppress the search warrant throughout the entire proceedings in the trial court. She rejected the prosecutions offer to admit the validity of the search warrant and even filed a motion to suppress the search. She was thus not proscribed from filing her motion to suppress the search warrant even after the arraignment. In its Comment,[57] the OSG maintains that the search warrant is valid. It insists that the CA correctly ruled that the requisites of a valid search warrant were present, noting that the Executive Judge conducted searching questions and answers on the person of Marissa Gorospe. It asserts that, in applying for a search warrant, a police officer need not possess personal knowledge regarding an illegal activity; it is the witness who should possess such personal knowledge, and upon whose testimony under oath probable cause may be established. In this case, it was Gorospe who narrated, under oath and before the judge, her personal knowledge of (petitioners) criminal activities.[58]

The OSG maintains that petitioner in effect waived whatever objections she had regarding the validity of the search warrant. It points out that she never questioned the warrant before

the court which issued the same, never questioned nor moved for the quashal of the warrant before her arraignment. And while petitioner was allowed to present evidence on the alleged invalidity of the search warrant, this did not cure her omission or inaction in raising the issue at the proper time.

In her Reply,[59] petitioner declares that a close scrutiny of the judges investigation of Gorospe would reveal that her personal circumstances are pivotal in her acquisition of personal knowledge regarding the alleged possession of shabu by petitioner. If these personal circumstances are fabricated, then such personal knowledge regarding the possession bears no credit.

Petitioner likewise maintains that contrary to the allegations of the OSG, she did not waive her right to question the validity of the warrant. She could not have done any better under the circumstances at that time because all the evidence against Gorospe was made known and available to her only after her arraignment.

The Court is tasked to resolve the following threshold issues: (a) whether petitioner waived her right to question Search Warrant No. 98-62 and the admissibility of the substances and paraphernalia and other articles confiscated from her house based on said warrant; and (b) whether the prosecution adduced evidence to prove her guilt beyond reasonable doubt for violation of Section 16, Article III of R.A. No. 6425, as amended.

The Ruling of the Court

Petitioner Did not WaiveHer Right to File a MotionTo Quash Search WarrantNo. 98-62 and for theSuppression of the EvidenceSeized by the Police Officers

Section 14, Rule 126 of the Revised Rules of Criminal Procedure reads:

Sec. 14. Motion to quash a search warrant or to suppress evidence; where to file. A motion to quash a search warrant and/or to suppress evidence obtained thereby may be filed in and acted upon only by the court where the action has been instituted. If no criminal action has been instituted, the motion may be filed in and resolved by the court that issued the search warrant. However, if such court failed to resolve the motion and a criminal case is subsequently filed in another court, the motion shall be resolved by the latter court.

The Court ruled in the Malaloan case that the motion to quash the search warrant which the accused may file shall be governed by the omnibus motion rule, provided, however, that objections not available, existent or known during the proceedings for the quashal of the warrant may be raised in the hearing of the motion to suppress the resolution of the court not on the motion to quash the search warrant and to suppress evidence shall be subject to any proper remedy in the appropriate higher court.[60] A motion to quash a search warrant may be based on grounds extrinsic of the search warrant, such as (1) the place searched or the property seized are not those specified or described in the search warrant; and (2) there is no

probable cause for the issuance of the search warrant.[61] Section 7, Rule 133 of the Rules of Court provides that the court may hear the motion, as follows:

When a motion is based on facts not appearing of record, the court may hear the matter on affidavits or depositions presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions.

In the present case, petitioner reserved her right to question Search Warrant No. 98-62 when she filed her motion for bail in the RTC. The public prosecutor conformed to the motion. During pre-trial in the RTC, petitioner rejected the prosecutions proposal for her to admit the validity of Search Warrant No. 98-62, insisting that it was void. In her motion to suppress, petitioner averred that the search warrant is void for the following reasons: lack of probable cause; failure of the Executive Judge to ask searching questions on Gorospe; and the evidence seized by the police officers on the basis of the search warrant are inadmissible in evidence. She likewise prayed that the search warrant be nullified, and that the evidence seized by the policemen on the basis of said warrant be suppressed.[62]

Petitioner was ready to adduce evidence in support of her motion, but the court declared that this should be done during the trial. Petitioner thus no longer assailed the ruling of the trial court and opted to adduce her evidence at the trial. She likewise objected to the admission of the search warrant and the evidence confiscated by the police officers after the search was conducted. It bears stressing that the trial court admitted the same and she objected thereto. It cannot, therefore, be said that petitioner waived her right to assail the search warrant and object to the admissibility of the regulated drugs found in her house.

On the second issue, the trial courts ruling (which the appellate court affirmed) that the prosecution adduced evidence to prove petitioners guilt of crime charged beyond reasonable doubt is correct.

Section 16, Article III of R.A. No. 6425, as amended by R.A. No. 7659 reads:

SEC. 16. Possession or Use of Regulated Drugs. The penalty of reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos shall be imposed upon any person who shall possess or use any regulated drug without the corresponding license or prescription, subject to the provisions of Section 20 hereof.

The elements of the crime of illegal possession of dangerous drugs are as follows: (a) the accused was in possession of the regulated drugs; (b) the accused was fully and consciously aware of being in possession of the regulated drug; and (c) the accused had no legal authority to possess the regulated drug.[63] Possession may be actual or constructive. In order to establish constructive possession, the People must prove that petitioner had dominion or control on either the substance or the premises where found.[64] The State must prove adequate nexus between the accused and the prohibited substance.[65] Possession of dangerous drugs constitutes primafacie evidence of knowledge or aminus possidendi sufficient to convict an accused in the absence of any satisfactory explanation of such possession. The burden of evidence is shifted to petitioner to explain the absence of aminus possidendi.[66]

We agree with the trial courts finding that, indeed, petitioner had in her possession and control 57 small, heat-sealed sachets of shabu weighing 5.67 gm when Search Warrant No. 98-62 was served on her. As testified to by the witnesses of the prosecution, the police officers, in the presence of Garcia and Mangaliag, found the said substances in a drawer in her bedroom. Petitioner likewise failed to present any legal authority to justify her possession of the regulated drug found in her bedroom.

The mere denial by petitioner of the crime charged and her bare claim of being the victim of a frame-up by de Vera and Gamboa cannot prevail over the positive and steadfast testimonies of the police officers. Their testimonies were corroborated by the inventory/receipt of property, stating that, indeed, 57 small heat-sealed plastic sachets containing methamphetamine hydrochloride (shabu) weighing 5.67 grams were found in a drawer in petitioners bedroom. The police officers are presumed to have performed their duties in good faith, in accordance with law. Absent any clear and convincing evidence that such officers had ill or improper motive or were not performing their duties, their testimonies with respect to the surveillance operation, the implementation of search warrant, and the seizure of the regulated drug in the house of petitioner must be accorded full faith and credence.[67] Like alibi, the defense of denial and frame-up had been invariably viewed by the courts with disfavor. Denial is a negative of self-serving defense, while frame-up is as easily concocted and is a common and standard defense ploy in most prosecutions for violation of R.A. No. 6425, as amended.[68] For the defense of frame-up to prosper, the evidence must be clear and convincing.[69]

It bears stressing that the policemen saw to it that the search of petitioners house was conducted with the assistance and in the presence of Barangay Captain Mangaliag and Kagawad Garcia. They testified that the regulated drugs confiscated by the policemen were found in the searched premises. Petitioner failed to present clear and convincing evidence that the policemen and the barangay officials had any improper motive to frame her and falsely ascribe to her the crime of violating R.A. No. 6425, as amended.

Except for her bare testimony, petitioner failed to prove that her brother Arsenio Tana instigated the policemen to secure Search Warrant No. 98-62, conducted a search in her house, planted the drugs in her bedroom and stole money from her. Petitioner failed to make such a claim when she was arrested and brought to the MTC for preliminary investigation. She also failed to file any criminal complaint against the policemen and her brother Arsenio Tana for filing the fabricated charge against her and for planting evidence in her house. It was only when she testified in her defense in the trial court that she alleged, for the first time, that the charge against her was instigated by her brother, in cahoots with the policemen. We quote with approval the disquisitions of the OSG on this matter:

SECOND: The police officers who testified had not proven bad or ill motive to testify against accused.

The suspicion of accused that it was her brother who manipulated the events in her life is unsubstantiated and too far-fetched to happen and is, therefore, unbelievable.

The presumption, therefore, is that said police officers performed their official duties regularly (People v. Cuachon, 238 SCRA 540).

THIRD: The testimony of accused is too self-serving. It is uncorroborated.

According to her, the intrusion into her house by the police was witnessed by her two daughter (sic). However, she did not present them as witnesses.

In the case of her daughter Ediliza, she was already twenty years old at the time so that she was already mature for all legal intents and purposes. In the case of her daughter Mae Liza, who was nine years old, there was no reason why she could not articulate what she personally saw and experienced, if what she would be made to state was true.

The inability of the said accused, therefore, to present her two daughters is tantamount to a suppression of evidence, thus raising the presumption that if they were presented, their testimonies would have been adverse to her.

Furthermore, it has been [the] consistent ruling of the Supreme Court that a plain denial or negative testimony, if unsubstantiated by a clear and convincing testimony, cannot prevail over the positive testimonies of prosecution witnesses (People v. Amaguin, 229 SCRA 155).

FOURTH: The other defense of accused is that it was unlikely for her to have engaged in pushing or peddling drugs for a living because she had to set a good example of decent living for the sake of her two beautiful daughters and good neighbors. Furthermore, she did not have financial problems which could have pushed her into the drug business because her sister Corazon Bernardino had been regularly sending her money.

The aforecited unlikelihood perceived by accused could not prevail over the affirmative testimonies of policemen Gamboa and de Vera who positively declared that they found 57 sachets of shabu in her room.[70]

Search Warrant No. 98-62 Is Valid; the Articles, Paraphernalia and RegulatedDrugs Found in Petitioners Bedroom and Confiscated by the Police Officers areAdmissible in EvidenceWe agree with the ruling of the CA affirming, on appeal, the findings of the trial court that based on the deposition and testimony of Gorospe, there was probable cause for the issuance of Search Warrant No. 98-62 for violation of Section 16, Article III of R.A. No. 6425, as amended.

Section 2, Article III of the Constitution provides:

SEC. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.

Thus, any evidence obtained in violation of this provision is inadmissible for any purpose in any proceeding.[71]

Sections 4 and 5, Rule 126 of the Revised Rules on Criminal Procedure enumerate the requisites for the issuance of a search warrant, thus:

SEC. 4. Requisites for issuing search warrant. A search warrant shall not issue except upon probable cause in connection with one specific offense 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 things to be seized which may be anywhere in the Philippines.

SEC. 5. Examination of complainant, record. The judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath, the complainant and the witnesses he may produce on facts personally known to them and attach to the record their sworn statements, together with the affidavits submitted.

The requisites for the issuance of a search warrant are: (1) probable cause is present; (2) such probable cause must be determined personally by the judge; (3) the judge must examine, in writing and under oath or affirmation, the complainant and the witnesses he or she may produce; (4) the applicant and the witnesses testify on the facts personally known to them; and (5) the warrant specifically describes the place to be searched and the things to be seized.[72]

Probable cause is defined as such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offensehas been committed and that the objects sought in connection with the offense are in the place sought to be searched. Reasonable minds may differ on the question of whether a particular affidavit/deposition or testimony of the affiant/deponent establishes probable cause. However, great deference is to be accorded to the Judges determination.[73] The affidavit/deposition supporting an application for a search warrant is presumed to be valid.[74]Affidavits/depositions for search warrants must be tested and interpreted by Judges in a common-sense and realistic fashion. They are normally drafted by non-lawyers in the midst and haste of a criminal investigation. Technical requisites of elaborate specificity have no place in this area.[75] The Judge in determining probable cause is to consider the totality of the circumstances made known to him and not by a fixed and rigid formula,[76] and must employ a flexible, totality of the circumstances standard.[77] Probable cause exists if a practical, common-sense evaluation of the facts and circumstances show a fair possibility that dangerous drugs will be found in the asserted location.[78] There must be a factual showing sufficient to comprise probable cause of particular facts and circumstances so as to allow the Judge to make an independent evaluation of the matter. It is sufficient if the information put forth in the affidavit/deposition or testimony of the affiant/deponent are believed or appropriately accepted by the affiant/deponent as true.[79] Sufficient information must be presented to allow a Judge to determine probable cause; his action cannot be a mere ratification of the bare/unsubstantiated contention of others.

The general rule is that the task of a reviewing court is not to conduct a de novo determination of probable cause but only to determine whether there is substantial evidence in the records supporting the Judges decision to issue the search warrant.[80] The reviewing court is simply to ensure that the Judge had a substantial basis for concluding that probable cause existed,[81] and once ascertained that the Judge had substantial basis for concluding

that a search would unearth evidence of a wrongdoing, the determination of probable cause must be upheld. In the absence of any showing that the Judge was recreant of his duties in connection with the personal examination he so conducted on the affiants/deponent before him, there is no basis for doubting the reliability and correctness of his findings and impressions.[82]

However, the finding of probable cause of the Judge may be set aside and the search warrant issued by him based on his finding may be quashed; the evidence seized by the police officers based on said search warrant may be suppressed if the accused presents clear and convincing evidence that the police officers and/or a government informant made a deliberate falsehood or reckless disregard for the truth in said affidavit/deposition or testimony which is essential or necessary to a showing of probable cause. Such evidence must focus on the state of mind of the affiants/deponents that he was conscious of the falsity of his assertion or representation.[83] The requirement that a search warrant not issue but upon probable cause would be reduced to a nullity if a police officer and his informant are able to use deliberately falsehood allegations to demonstrate probable cause and, having misled the Judge, was able to remain confident that the ploy succeeded.[84] However, innocent and negligent omissions or misrepresentation of a police officer or government informant will not invalidate a search warrant. And even if the police officer or government informant may have deliberately made a falsehood or reckless disregard for the truth in his or her affidavit/deposition but the remaining portions thereof are sufficient to establish probable cause, the search warrant will not be quashed for lack of probable cause.[85]

The evidence presented by petitioner that Gorospe was not a resident or transient of Barangay Sapang, even if true and credible, is not at all material or necessary to the determination of probable cause. Whether petitioner and Gorospe were dealers of Avon Cosmetics as of May 5, 1998 may be relevant to the issue of whether there was factual basis for the finding of probable cause by the Executive Judge against petitioner; however, petitioners evidence to prove his claim is tenuous and does not warrant the quashal of Search Warrant No. 98-62 and the suppression of the evidence seized after the enforcement of the search warrant.

The evidence petitioner presented to disprove the testimony of Gorospe that they were dealers of Avon Cosmetics are her (petitioners) testimony and that of Carvajal. The certification purportedly signed by dela Rosa, the Branch Manager of Avon Cosmetics Dagupan Branch, is hearsay because she did not testify. Carvajal admitted that she was not in a position to confirm the veracity of the contents of the certification:

PROSECUTOR JAIME DOJILLO ON CROSS-EXAMINATION

q What is your position at Dagupan Avon Cosmetics?a Team Leader, Sir.

q Do you have any participation in the preparation of this certification?a None, Sir.

q So, you had not in position to know the truth of this certification, hence, you were not the one who prepared the same?a Yes, Sir.[86]

Carvajal was merely one of many team leaders of Avon Cosmetics in Dagupan City. She did not testify nor did petitioner adduce evidence that Gorospe was not such a dealer in places other than Dagupan City or Pangasinan for that matter. In fine, petitioner failed to adduce competent and credible evidence that Gorospe was not a dealer of Avon products in the branches of Avon Cosmetics other than Pangasinan. Other than the denial ofpetitioner and the testimony of Carvajal, petitioner failed to present evidence that she was not a dealer of Avon Cosmetics. On the other hand, the testimony of Gorospe before the Executive Judge was corroborated by the testimonies of police officers Gamboa and de Vera.

In the present case, the Executive Judge found probable cause after conducting the requisite searching questions on Gorospe for violation of Section 16, Article III of R.A. No. 6425, as amended. The trial court reviewed the testimony of Gorospe before the Executive Judge[87] and confirmed that, indeed, there was probable cause against petitioner for violation of said crime. The finding of the Executive Judge was corroborated by the testimony of police officers de Vera and Gamboa, who, in their surveillance operation, partially confirmed Gorospes claim that, indeed, people had been going to the house of petitioner to buy shabu. The findings of the trial court were, in turn, affirmed by the CA.

The well-entrenched rule is that the findings of the trial court affirmed by the appellate court are accorded high respect, if not conclusive effect, by this Court, absent clear and convincing evidence that the tribunals ignored, misconstrued or misapplied facts and circumstances of substances such that, if considered, the same will warrant the modification or reversal of the outcome of the case. In this case, petitioner failed to establish any such circumstance.

The trial and appellate courts ruled that petitioner possessed 5.67 gm of methamphetamine hydrochloride and sentenced her to an indeterminate penalty of two (2) years, four (4) months and one (1) day to four (4) years and two (2) months of prision correccional. The penalty imposed by the trial court and affirmed by the CA is incorrect. As the Court ruled in People v. Tira:[88]

Under Section 16, Article III of Rep. Act No. 6425, as amended, the imposable penalty of possession of a regulated drug, less than 200 grams, in this case, shabu, is prision correccional to reclusion perpetua. Based on the quantity of the regulated drug subject of the offense, the imposable penalty shall be as follows:

QUANTITY IMPOSABLE PENALTY

Less than one (1) gram to 49.25 grams prision correccional49.26 grams to 98.50 grams prision mayor98.51 grams to 147.75 grams reclusion temporal147.76 grams to 199 grams reclusion perpetua

Considering that the regulated drug found in the possession of the appellants is only 1.001 grams, the imposable penalty for the crime is prision correccional. Applying the Indeterminate Sentence Law, the appellants are sentenced to suffer an indeterminate penalty of from four (4) months and one (1) day of arresto mayor in its medium period as minimum, to three (3)

years of prision correccional in its medium period as maximum, for violation of Section 16 of Rep. Act No. 6425, as amended.[89]

The penalty imposed in the Tira case is the correct penalty, which should likewise be imposed against petitioner herein.

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED. The decision of the Court of Appeals in CA-G.R. CR No. 25726 is AFFIRMED WITH MODIFICATION as to penalty. Petitioner is hereby sentenced to an indeterminate penalty of from four (4) months and one (1) day of arresto mayor in its medium period as minimum to three (3) years of prision correccional in its medium period as maximum.

SO ORDERED.

ROMEO J. CALLEJO, SR. Associate Justice

WE CONCUR: PANGANIBAN, YNARES-SANTIAGO, AUSTRIA-MARTINEZCHICO-NAZARIOAssociate Justice