G.R. No. 121234 August 23, 1995

HUBERT J. P. WEBB, petitioner, vs. HONORABLE RAUL E. DE LEON

PUNO, J.:

Before the Court are petitions for the issuance of the extraordinary writs of certiorari, prohibition and mandamuswith application for temporary restraining order and preliminary injunction to: (1) annul and set aside the Warrants of Arrest issued against petitioners by respondent Judges Raul E. de Leon and Amelita Tolentino in Criminal Case No. 95-404; (2) enjoin the respondents from conducting any proceeding in the aforementioned criminal case; and (3) dismiss said criminal case or include Jessica Alfaro as one of the accused therein. 1

From the records of the case, it appears that on June 19, 1994, the National Bureau of Investigation (NBI) filed with the Department of Justice a letter-complaint charging petitioners Hubert Webb, Michael Gatchalian, Antonio J. Lejano and six (6) other persons, 2 with the crime of Rape with Homicide. Forthwith, the Department of Justice formed a panel of prosecutors headed by Assistant Chief State Prosecutor Jovencio R. Zuño to conduct the preliminary investigation 3of those charged with the rape and killing on June 30, 1991 of Carmela N. Vizconde; 4 her mother Estrellita Nicolas-Vizconde, 5 and her sister Anne Marie Jennifer 6 in their home at Number 80 W. Vinzons, St., BF Homes, Parañaque, Metro Manila.

During the preliminary investigation, the NBI presented the following: (1) the sworn statement dated May 22, 1995 of their principal witness, Maria Jessica M. Alfaro who allegedly saw the commission of the crime; 7 (2) the sworn statements of two (2) of the former housemaids of the Webb family in the persons of Nerissa E. Rosales and Mila S. Gaviola;8 (3) the sworn-statement of Carlos J. Cristobal who alleged that on March 9, 1991 he was a passenger of United Airlines Flight No. 808 bound for New York and who expressed doubt on whether petitioner Webb was his co-passenger in the trip; (4) the sworn statement of Lolita Birrer, a former live-in partner of Gerardo Biong, who narrated the manner of how Biong investigated and tried to cover up the crime at bar; 9 (5) the sworn statements of Belen Dometita and Teofilo Minoza, two of the Vizconde maids, and the sworn statements of Normal White, a security guard and Manciano Gatmaitan, an engineer. The autopsy reports of the victims were also submitted and they showed that Carmela had nine (9) stab wounds, Estrellita twelve (12) and Jennifer nineteen

(19). 10 The genital examination of Carmela confirmed the presence of spermatozoa. 11

Before submitting his counter-affidavit, petitioner Webb filed with the DOJ Panel a Motion for Production And Examination of Evidence and Documents for the NBI to produce the following:

(a) Certification issued by the U.S. Federal Bureau of Investigation on the admission to and stay of Hubert Webb in the United States from March 9, 1991 to October 22, 1992;

(b) Laboratory Report No. SN-91-17 of the Medico Legal Officer, Dr. Prospero A. Cabanayan, M.D.;

(c) Sworn Statements of Gerardo C. Biong (other than his Sworn Statement dated October 7, 1991);

(d) Photographs of fingerprints lifted from the Vizconde residence taken during the investigation;

(e) Investigation records of NBI on Engr. Danilo Aguas, et al.;

(f) List of names of 135 suspects/persons investigated by the NBI per Progress Report dated September 2, 1991 submitted by Atty. Arlis Vela, Supervising Agent;

(g) Records of arrest, interview, investigation and other written statements of Jessica Alfaro (other than the May 22, 1995 Sworn Statement) conducted by the NBI and other police agencies;

(h) transmittal letter to the NBI, including the report of the investigation conducted by Superintendent Rodolfo C. Sison, Regional Deputy Director, NCRC;

(i) The names of NBI officials/agents composing the Task Force Jecares, including their respective positions and duties;

(j) Statements made by other persons in connection with the crime charged.

The motion was granted by the DOJ Panel and the NBI submitted photocopies of the documents. It alleged it lost the original of the April 28, 1995 sworn statement of Alfaro. This compelled petitioner Webb to file Civil Case No. 951099 in the Regional Trial Court (RTC) of Makati, Br. 63, for the purpose, among others, of obtaining the original of said sworn statement. He succeeded, for in the course of

its proceedings, Atty. Arturo L. Mercader, Jr., produced a copy of said original in compliance with a subpoena duces tecum. The original was then submitted by petitioner Webb to the DOJ Panel together with his other evidence. It appears, however, that petitioner Webb failed to obtain from the NBI the copy of the Federal Bureau of Investigation (FBI) Report despite his request for its production.

Petitioner Webb claimed during the preliminary investigation that he did not commit the crime at bar as he went to the United States on March 1, 1991 and returned to the Philippines on October 27, 1992. 12 His alibi was corroborated by Honesto Aragon, Lecinia Edrosolano, Sylvia Climaco, Gina Roque, Sonia Rodriguez, Edgardo Venture and Pamela Francisco. 13 To further support his defense, he submitted documentary evidence that he bought a bicycle and a 1986 Toyota car while in the United States on said dates 14 and that he was issued by the State of California Driver's License No. A8818707 on June 14, 1991. 15 Petitioner Webb likewise submitted the letter dated July 25, 1995 of Mr. Robert Heafner, Legal Attache of the US Embassy, citing certain records tending to confirm, among others, his arrival at San Francisco, California on March 9, 1991 as a passenger in United Airlines Flight No. 808.

The other respondents — Hospicio "Pyke" Fernandez, Michael Gatchalian, Antonio "Tony Boy" Lejano, Peter Estrada, Miguel Rodriguez and Gerardo Biong — submitted sworn statements, responses, and a motion to dismiss denying their complicity in the rape-killing of the Vizcondes. 16 Only the respondents Joey Filart and Artemio "Dong" Ventura failed to file their counter-affidavits though they were served with subpoena in their last known address. 17 In his sworn statement, petitioner Gatchalian alleged that from 11 o'clock in the evening of June 29, 1991 until 3 o'clock in the morning of the following day, he was at the residence of his friends, Carlos and Andrew Syyap, at New Alabang Village, Muntinlupa watching video tapes. He claimed that his co-petitioner Lejano was with him.

On August 8, 1995, the DOJ Panel issued a 26-page Resolution "finding probable cause to hold respondents for trial" and recommending that an Information for rape with homicide be filed against petitioners and their co-respondents, 18 On the same date, it filed the corresponding Information 19 against petitioners and their co-accused with the Regional Trial Court of Parañaque. The case was docketed as Criminal Case No. 95-404 and raffled to Branch 258 presided by respondent judge Zosimo V. Escano. It was, however, the respondent judge Raul de Leon, pairing judge of Judge Escano, who issued the warrants of arrest against the petitioners. On August 11, 1995, Judge Escano voluntarily inhibited himself from the case to

avoid any suspicion about his impartiality considering his employment with the NBI before his appointment to the bench. The case was re-raffled to Branch 274, presided by Judge Amelita Tolentino who issued new warrants of arrest against the petitioners and their co-accused. On August 11, 1995, petitioner Webb voluntarily surrendered to the police authorities at Camp Ricardo Papa Sr., in Bicutan, Taguig. Petitioners Gatchalian and Lejano likewise gave themselves up to the authorities after filing their petitions before us.

In their petitions at bar, petitioners contend: (1) respondent Judges de Leon and Tolentino gravely abused their discretion when they failed to conduct a preliminary examination before issuing warrants of arrest against them: (2) the DOJ Panel likewise gravely abused its discretion in holding that there is probable cause to charge them with the crime of rape with homicide; (3) the DOJ Panel denied them their constitutional right to due process during their preliminary investigation; and (4) the DOJ Panel unlawfully intruded into judicial prerogative when it failed to charge Jessica Alfaro in the Information as an accused.

We find the petitions bereft of merit.

I

Petitioners fault the DOJ Panel for its finding of probable cause. They insist that the May 22, 1995 sworn statement of Jessica Alfaro is inherently weak and uncorroborated. They hammer on alleged material inconsistencies between her April 28, 1995 and May 22, 1995 sworn statements. They assail her credibility for her misdescription of petitioner Webb's hair as semi-blonde. They also criticize the procedure followed by the DOJ Panel when it did not examine witnesses to clarify the alleged incredulities and inconsistencies in the sworn statements of the witnesses for the NBI.

We start with a restatement of the purpose of a preliminary investigation. Section 1 of Rule 112 provides that a preliminary investigation should determine " . . . whether there is a sufficient ground to engender a well-grounded belief that a crime cognizable by the Regional Trial Court has been committed and that the respondent is probably guilty thereof, and should be held for trial." Section 3 of the same Rule outlines the procedure in conducting a preliminary investigation, thus:

Sec. 3. Procedure. — Except as provided for in Section 7 hereof, no complaint or information for an offense

cognizable by the Regional Trial Court shall be filed without a preliminary investigation having been first conducted in the following manner:

(a) The complaint shall state the known address of the respondent and be accompanied by affidavits of the complainant and his witnesses as well as other supporting documents, in such number of copies as there are respondents, plus two (2) copies for the official file. The said affidavits shall be sworn to before any fiscal, state prosecutor or government official authorized to administer oath, or, in their absence or unavailability, a notary public, who must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits.

(b) Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss the same if he finds no ground to continue with the inquiry, or issue a subpoena to the respondent, attaching thereto a copy of the complaint, affidavits and other supporting documents. Within ten (10) days from receipt thereof, the respondent shall submit counter-affidavits and other supporting documents. He shall have the right to examine all other evidence submitted by the complainant.

(c) Such counter-affidavits and other supporting evidence submitted by the respondent shall also be sworn to and certified as prescribed in paragraph (a) hereof and copies thereof shall be furnished by him to the complainant.

(d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits within the ten (10) day period, the investigating officer shall base his resolution on the evidence presented by the complainant.

(e) If the investigating officer believes that there are matters to be clarified, he may set a hearing to propound clarificatory questions to the parties or their witnesses, during which the parties shall be afforded an opportunity to be present but without the right to examine or cross-examine. If the parties so desire, they may submit questions to the investigating officer which the latter may propound to the parties or witnesses concerned.

(f) Thereafter, the investigation shall be deemed concluded, and the investigating officer shall resolve the case within ten (10) days therefrom. Upon the evidence thus adduced, the investigating officer shall determine whether or not there is sufficient ground to hold the respondent for trial.

Section 4 of Rule 112 then directs that "if the investigating fiscal finds cause to hold the respondent for trial, he shall prepare the resolution and corresponding information. He shall certify under oath that he, or as shown by the record, an authorized officer, has personally examined the complainant and his witnesses, that there is reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof . . ."

The need to find probable cause is dictated by the Bill of Rights which protects "the right of the people to be secure in their persons . . . against unreasonable searches and seizures of whatever nature . . ." 20 An arrest without a probable cause is an unreasonable seizure of a person, and violates the privacy of persons which ought not to be intruded by the State. 21 Probable cause to warrant arrest is not an opaque concept in our jurisdiction. Continuing accretions of case law reiterate that they are facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed by the person sought to be arrested. 22 Other jurisdictions utilize the term man of reasonable caution 23 or the term ordinarily prudent and cautious man. 24 The terms are legally synonymous and their reference is not to a person with training in the law such as a prosecutor or a judge but to the average man on the street. 25 It ought to be emphasized that in determining probable cause, the average man weighs facts and circumstances without resorting to the calibrations of our technical rules of evidence of which his knowledge is nil. Rather, he relies on the calculus of common sense of which all reasonable men have an abundance.

Applying these basic norms, we are not prepared to rule that the DOJ Panel gravely abused its discretion when it found probable cause against the petitioners. Petitioners belittle the truthfulness of Alfaro on two (2) grounds: (a) she allegedly erroneously described petitioner Webb's hair as semi-blond and (b) she committed material inconsistencies in her two (2) sworn statement, thus: 26

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To illustrate, the following are some examples of inconsistencies in the two sworn statements of Alfaro:

On whether Alfaro knew Carmela before the incident in question

First Affidavit: She had NOT met Carmela before June 29, 1991.

Second Affidavit: "I met her in a party sometime in February, 1991."

On whether Alfaro saw the dead bodies

First Affidavit: She did not see the three dead persons on that night. She just said "on the following day I read in the newspaper that there were three persons who were killed . . ."

Second Affidavit: "I peeped through the first door on the left. I saw two bodies on top of the bed, bloodied, and in the floor, I saw Hubert on top of Carmela."

On the alleged rape of Carmela Vizconde

First Affidavit: She did not see the act of rape.

Second Affidavit: She saw Hubert Webb "with bare buttocks, on top of Carmela and pumping, her mouth gagged and she was moaning and I saw tears on her eyes."

On how Webb, Lejano, and Ventura entered the Vizconde house

First Affidavit: "by jumping over the fence, which was only a little more than a meter high."

Second Affidavit: They "entered the gate which was already open."

On whether Alfaro entered the Vizconde house

First Affidavit: She never entered the house.

Second Affidavit: "I proceeded to the iron grill gate leading to the dirty kitchen."

In its Resolution, the DOJ Panel ruled that these alleged misdescription and inconsistencies did not erode the credibility of Alfaro. We quote the pertinent ruling, viz.: 27

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As regards the admissibility of Alfaro's statements, granting for purposes of argument merely that she is a co-conspirator, it is well to note that confessions of a co-conspirator may be taken as evidence to show the probability of the co-conspirator's participation in the commission of the crime (see People vs. Lumahang, 94 Phil. 1084).

Furthermore, it is a well-established doctrine that conspiracy need not be proved by direct evidence of prior agreement to commit the crime. Indeed, "only rarely would such a prior agreement be demonstrable since, in the nature of things, criminal undertakings are only rarely documented by agreements in writing. Thus, conspiracy may be inferred from the conduct of the accused before, during and after the commission of the crime, showing that the several accused had acted in concert or in unison with each other, evincing a common purpose or design." (Angelo vs. Court of Appeals, 210 SCRA 402 [1992], citations omitted; People vs. Molleda, 86 SCRA 699).

Neither can we discredit Alfaro merely because of the inconsistencies in her two sworn statements. InAngelo, the Court refused to discredit the testimony of a witness accusing therein petitioner for the slaying of one Gaviano Samaniego even though said witness failed to name Angelo in his affidavit which was executed five (5) months earlier. Granting, the Court continued, that a part of the witness' testimony is untrue, such circumstance is not sufficient to discredit the entire testimony of the witness.

On August 7, 1995, another counsel for respondent Webb submitted his memorandum suggesting that the instant complaint "should not be decided within the month to give time to the NBI to coordinate with the FBI on the latter's

inquiry into the whereabouts of Hubert Webb . . . and to check on our U.S.-based witnesses."

In said memorandum, counsel for respondent Webb calls for the application of the maxim falsus in uno, falsus in omnibus arising from the inconsistencies of Alfaro's statements, among others. This is untenable. As held in Angelo:

There is no rule of law which prohibits a court from crediting part of the testimony of a witness as worthy of belief and from simultaneously rejecting other parts which the court may find incredible or dubious. The maxim falsus in uno, falsus in omnibus is not a rule of law, let alone a general rule of law which is universally applicable. It is not a legal presumption either. It is merely a latinism describing the conclusion reached by a court in a particular case after ascribing to the evidence such weight or lack of weight that the court deemed proper.

In the case before us, complainant reasoned out that Alfaro was then having reservations when she first executed the first statement and held back vital information due to her natural reaction of mistrust. This being so, the panel believes that the inconsistencies in Alfaro's two sworn statements have been sufficiently explained especially specially so where there is no showing that the inconsistencies were deliberately made to distort the truth. Consequently, the probative value of Alfaro's testimony deserves full faith and credit. As it has been often noted, ex parte statements are generally incomplete because they are usually executed when the affiant's state of mind does not give her sufficient and fair opportunity to comprehend the import of her statement and to narrate in full the incidents which transpired (People vs. Sarellana, 233 SCRA 31 [1994]; Angelo vs. Court of Appeals, supra). In the case at bar, there is no dispute that a crime has been committed and what is clear before us is that the totality of the evidence submitted by the complainant indicate a prima faciecase that respondents conspired in the perpetration of the imputed offense.

We note that the May 22, 1995 sworn statement of Alfaro was given with the assistance of counsel 28 and consists of six (6) pages, in single space reciting in rich details how the crime was planned and then executed by the petitioners. In addition, the DOJ Panel evaluated the supporting sworn statements of Nerissa Rosales and Mila Gaviola, former housemaids of the Webbs, Carlos J. Cristobal, a passenger in United Airlines Flight No. 808 and Lolita Birrer, a paramour of Gerardo Biong. The Panel assayed their statements as follows: 29

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According to Nerissa E. Rosales, a former housemaid of the Webb family, on June 29, 1991, between 7:00 o'clock and 8:00 o'clock in the evening, Hubert was at home inside his room with two male visitors. She knew it because she and her co-housemaid, Loany, were instructed by Hubert to bring them three glasses of juice. It was the last time she saw Hubert and was later told by then Congressman Webb that Hubert was in the United States.

While Mila S. Gaviola, another former housemaid of the Webb family and who served as a laundry woman, claims, aside from corroborating the statement of Nerissa Rosales, that on June 30, 1991, she woke up at around 4:00 in the morning and as what she used to do, she entered the rooms of the Webbs to get their clothes to be washed. As a matter of fact, in that early morning, she entered Hubert's room and saw Hubert, who was only wearing his pants, already awake and smoking while he was sitting on his bed. She picked up Hubert's scattered clothes and brought them together with the clothes of the other members of the family to the laundry area. After taking her breakfast, she began washing the clothes of the Webbs. As she was washing the clothes of Hubert Webb, she noticed fresh bloodstains in his shirt. After she finished the laundry, she went to the servant's quarters. But feeling uneasy, she decided to go up to the stockroom near Hubert's room to see what he was doing. In the said stockroom, there is a small door going to Hubert's room and in that door there is a small opening where she used to see Hubert and his friends sniffing on something. She observed Hubert was quite irritated, uneasy, and walked to and from inside his room.

On that day, she noticed Hubert left the house at around 1:00 in the afternoon and came back at around 4:00 in the same afternoon and went inside his room using the secret door of the house. It was the last time that she saw Hubert until she left the Webb family.

On the other hand, Carlos J. Cristobal alleged that on March 9, 1991, at about 10:00 in the morning, he was at the Ninoy Aquino International Airport as he was then scheduled to take the United Airlines Flight No. 808 at 2:00 in the afternoon for New York. At the airport's lobby, he saw then Congressman Freddie Webb with a male companion. He greeted him and Webb answered: "Mabuti naman, at ito, ihahatid ko ang anak ko papuntang Florida." He knew Freddie Webb because he often watched him then in a television show "Chicks to Chicks." He observed that the man whom Freddie Webb referred to as his son, was of the same height as Freddie. The son referred to has fair complexion with no distinguishing marks on his face. He (son of Webb) was then wearing a striped white jacket. When he and his children were already inside the plane, he did not see Freddie anymore, but he noticed his son was seated at the front portion of the economy class. He never noticed Freddie Webb's son upon their arrival in San Francisco. He claims that, while watching the television program "DONG PUNO LIVE" lately, he saw the wife of Freddie Webb with her lawyer being interviewed, and when she described Hubert as "moreno" and small built, with a height of five feet and seven inches tall, and who was the one who left for United States on March 9, 1991, he nurtured doubts because such description does not fit the physical traits of the son of Freddie, who left with him for United States on the same flight and date.

Lolita Birrer, alleged that she know Gerardo Biong because she had an affair with him for almost three (3) years and in fact, she had a child with him who is now four (4) years old. Their relationship started in February, 1991 until she broke up with him in September 1993. She recalls that on June 29, 1991, at around 6:00 p.m., Biong invited her to play mahjong at the canteen of a certain Aling Glo located at the back of the Parañaque Municipal Hall.

At about 2:30, in the early morning of January 30, 1991, the radio operator of the Parañaque police told Biong that he has a phone call. Before Biong went to the radio room, she was instructed to take him over and after somebody won the game, she followed Biong at the radio room where she overheard him uttering, "Ano?, Saan? Mahirap yan, Paano, o sige, aantayin kita, O ano?, dilaw na taxi, o sige." When he put the phone down, Biong told her, "Mayroon lang akong rerespondehan, ikaw muna ang maupo" and then, he went outside the canteen apparently waiting for somebody. Twenty minutes later, a taxi, colored yellow, arrived with a male passenger sitting at the backseat and parked near the canteen. After it made some signals by blinking its headlight, Biong rode thereat at the front seat beside the driver and then, they left. She was not able to recognize the male passenger because the window of the taxi was tinted. Biong came back at around 7:00 of the same morning and when he arrived, he immediately washed his hands and face, and took his handkerchief from his pocket which he threw at the trash can. She asked him why he threw his handkerchief and he answered, "Hmp . . . amoy tae." She inquired what happened in BF Homes and he replied, "Putang inang mga batang iyon, pinahirapan nila ako."

Biong later invited her for breakfast, but they first went to his office where she observed him doing something in his steel cabinet while he appeared to be uneasy. Moments later, Galvan, another policeman of Parañaque, arrived and said, "Oy Biong, may tatlong patay sa BF, imbestigahan mo" to which Biong answered, "Oo susunod na ako." Biong went to the office of Capt. Don Bartolome who offered to accompany him and with whom she asked permission to go with them. Before they proceeded to the place where the killings happened, she asked Biong if he knew the exact address and the latter immediately responded, "Alam ko na yon." She was surprised because Galvan never told him the place of the incident.

As soon as they arrived at the Vizconde's residence, Biong instructed the housemaids to contact the victim's relatives, while the security guard fetched the barangay chairman and the president of the Homeowners Association. When all these persons were already in the house, Biong started recording the wounds of the victim. Inside the master's bedroom, she saw Biong took a watch

from the jewelry box. Because she could not tolerate the foul odor, she and Capt. Bartolome went out of the room and proceeded to the dining area. On top of the dining table, she saw the scattered contents of a shoulder bag. Moments later, Biong came out from the room and proceeded to the front door to remove the chain lock; asked the keys from the housemaid and it was only then that the main door was opened. Biong noticed a stone in front of the broken glass of the door and requested Capt. Bartolome to go inside the servant's quarters as he doubted the housemaids' claim that they heard nothing unusual. Using the handle of his gun, Biong broke the remaining glass of the door panel. Bartolome then came out of the room and told Biong that he can hear the sound of the glass being broken. At the garage, Biong also noticed same marks on the hood of the car.

On the following day, at around 12:00 noon, Biong arrived in her house together with the Vizconde housemaids. When Biong was preparing to take a bath, she saw him remove from his pocket the things she also saw from Vizconde's residence, to wit: calling cards, driver's license, ATM card, a crossed check worth P80,000.00, earrings, a ring, bracelet, necklace, and the watch he took from the jewelry box inside the room of the Vizcondes. These jewelry items were later pawned by Biong for P20,000.00 at a pawnshop in front of Chow-Chow restaurant in Santos Avenue, Parañaque. The next day, she saw Biong took from his locker at the Parañaque Police Station an imported brown leather jacket, which the latter claimed to have been given to him by the person who called him up in the early morning of June 30, 1991.

Since then, Biong has been wearing said jacket until they broke up sometime in 1993. She observed that Biong seemed not interested in pursuing the investigation of the Vizconde case. In fact, when Biong and this group picked up Mike Gatchalian and brought him to the Parañaque Police Station, she was surprised that Biong halted the investigation when Gatchalian was profusely sweating while being interrogated. After the father of Gatchalian talked to Colonel Pureza, the latter called up and instructed Biong to bring Gatchalian to him (Colonel Pureza) and that was the last thing she remembered regarding this case.

The DOJ Panel then weighed these inculpatory evidence against the exculpatory evidence of petitioners. It ruled:30

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The voluminous number of exhibits submitted by respondent Webb to support his defense of denial and alibi notwithstanding, the panel, after a careful and thorough evaluation of the records, believes that they cannot outweigh the evidence submitted by the complainant. Alibi cannot prevail over the positive identification made by a prosecution witness. Verily, alibi deserves scant consideration in the face of positive identification especially so where the claim of alibi is supported mainly by friends and relatives (People vs. Apolonia, 235 SCRA 124 [1994]; People vs. Lucas, 181 SCRA 316 and a long line of cases).

Similarly, denial is a self-serving negative which cannot be given greater evidentiary weight than the declaration of a credible witness who testified on affirmative matters (People vs. Carizo, 233 SCRA 687 [1994]). Indeed, denial, like alibi, is weak and becomes even more weaker when arrayed against the positive identification by the witness for the prosecution (People vs. Onpaid, 233 SCRA 62 [1994]).

Surprisingly, Gatchalian's defense of alibi was not corroborated by Lejano, whom he claimed was with him watching video tapes at the Syyap residence. Other than claiming that he "was not and could not have been at or near the area of the Vizconde residence at the time of the alleged commission of the crime," respondent Lejano proffered no evidence to substantiate his claim of alibi.

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On the other hand, respondent Webb seeks to enhance the acceptability of his alibi in the form of documents tending to show that he was thousands of miles away when the incident occurred. We have carefully deliberated and argued on the evidence submitted by respondent Webb in support of his absence from the country since March 9, 1991 to October 26, 1992 and found the same wanting to exonerate him of the offense charged. The material dates

in this case are June 29 and 30, 1991. While respondent Webb may have submitted proof tending to show that he was issued a California driver's license on June 14, 1991, there is no showing that he could not have been in the country on the dates above mentioned. Neither do we find merit in the allegation that respondent Webb personally bought a bicycle on June 30, 1991 in California in view of his positive identification by Alfaro and the two (2) househelps of the Webb family who testified that he was here in the country on said dates. Additionally, the issuance of receipt evidencing the purchase of a bicycle in California is no conclusive proof that the name appearing thereon was the actual buyer of the merchandise.

Given these conflicting pieces of evidence of the NBI and the petitioners, we hold that the DOJ Panel did not gravely abuse its discretion when it found probable cause against the petitioners. A finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been committed and was committed by the suspects. Probable cause need not be based on clear and convincing evidence of guilt, neither on evidence establishing guilt beyond reasonable doubt and definitely, not on evidence establishing absolute certainty of guilt. As well put in Brinegar v. United States, 31 while probable cause demands more than "bare suspicion," it requires "less than evidence which would justify . . . conviction." A finding of probable cause merely binds over the suspect to stand trial. It is not a pronouncement of guilt.

Considering the low quantum and quality of evidence needed to support a finding of probable cause, we also hold that the DOJ Panel did not, gravely abuse its discretion in refusing to call the NBI witnesses for clarificatory questions. The decision to call witnesses for clarificatory questions is addressed to the sound discretion of the investigator and the investigator alone. If the evidence on hand already yields a probable cause, the investigator need not hold a clarificatory hearing. To repeat, probable cause merely implies probability of guilt and should be determined in a summary manner. Preliminary investigation is not a part of trial and it is only in a trial where an accused can demand the full exercise of his rights, such as the right to confront and cross-examine his accusers to establish his innocence. In the case at bar, the DOJ Panel correctly adjudged that enough evidence had been adduced to establish probable cause and clarificatory hearing was unnecessary.

II

We now come to the charge of petitioners that respondent Judge Raul de Leon and, later, respondent Judge Amelita Tolentino issued warrants of arrest against them without conducting the required preliminary examination. Petitioners support their stance by highlighting the following facts: (1) the issuance of warrants of arrest in a matter of few hours; (2) the failure of said judges to issue orders of arrest; (3) the records submitted to the trial court were incomplete and insufficient from which to base a finding of probable cause; and (4) that even Gerardo Biong who was included in the Information as a mere accessory had a "NO BAIL" recommendation by the DOJ Panel. Petitioners postulate that it was impossible to conduct a "searching examination of witnesses and evaluation of the documents" on the part of said judges.

The issuance of a warrant of arrest interferes with individual liberty and is regulated by no less than the fundamental law of the land. Section 2 of 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.

The aforequoted provision deals with the requirements of probable cause both with respect to issuance of warrants of arrest or search warrants. The similarities and differences of their requirements ought to be educational. Some of them are pointed out by Professors LaFave and Israel, thus: 32 "It is generally assumed that the same quantum of evidence is required whether one is concerned with probable cause to arrest or probable cause to search. But each requires a showing of probabilities as to somewhat different facts and circumstances, and thus one can exist without the other. In search cases, two conclusions must be supported by substantial evidence: that the items sought are in fact seizable by virtue of being connected with criminal activity, and that the items will be found in the place to be searched. It is not also necessary

that a particular person be implicated. By comparison, in arrest cases there must be probable cause that a crime has been committed and that the person to be arrested committed it, which of course can exist without any showing that evidence of the crime will be found at premises under that person's control." Worthy to note, our Rules of Court do not provide for a similar procedure to be followed in the issuance of warrants of arrest and search warrants. With respect to warrants of arrest, section 6 of Rule 112 simply provides that "upon filing of an information, the Regional Trial Court may issue a warrant for the arrest of the accused." In contrast, the procedure to be followed in issuing search warrants is more defined. Thus, Sections 3, 4 and 5 of Rule 126 provide:

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Sec. 3. Requisites for issuing search warrant. — A search warrant shall not issue but 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 witnesses he may produce, and particularly describing the place to be searched and the things to be seized.

Sec. 4. 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 any witnesses he may produce on facts personally known to them and attach to the record their sworn statements together with any affidavits submitted.

Sec. 5. Issuance and form of search warrant. — If the judge is thereupon satisfied of the facts upon which the application is based, or that there is probable cause to believe that they exist, he must issue the warrant, which must be substantially in the form prescribed by these Rules.

We discussed the difference in the Procedure of issuing warrants of arrest and search warrants in Soliven vs. Makasiar, 33 thus:

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The second issue, raised by Beltran, calls for an interpretation of the constitutional provision on the issuance of warrants of arrest. The pertinent provision reads:

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

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

What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause. In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest, the judge is not required to personally examine the complainant and his witnesses. Following established doctrine and procedure, he shall: (1) personally evaluate the report and the documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant; or (2) if on the basis thereof he finds no probable cause, he may disregard the fiscal's report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusions as to the existence of probable cause.

Sound policy dictates this procedure, otherwise judges would be unduly laden with the preliminary examination and investigation of criminal complaints instead of concentrating on hearing and deciding cases filed before their courts.

Clearly then, the Constitution, the Rules of Court, and our case law 34 repudiate the submission of petitioners that respondent judges should have conducted "searching examination of witnesses" before issuing warrants of arrest against them. They also reject petitioners' contention that a judge must first issue an order of arrest before issuing a warrant of arrest. There is no law or rule requiring the issuance of an Order of Arrest prior to a warrant of arrest.

In the case at bar, the DOJ Panel submitted to the trial court its 26-page report, the two (2) sworn statements of Alfaro and the sworn statements of Carlos Cristobal and Lolita Birrer 35 as well as the counter-affidavits of the petitioners. Apparently, the painstaking recital and analysis of the parties' evidence made in the DOJ Panel Report satisfied both judges that there is probable cause to issue warrants of arrest against petitioners. Again, we stress that before issuing warrants of arrest, judges merely determine personally the probability, not the certaintyof guilt of an accused. In doing so, judges do not conduct a de novo hearing to determine the existence of probable cause. They just personally review the initial determination of the prosecutor finding a probable cause to see if it is supported by substantial evidence. The sufficiency of the review process cannot be measured by merely counting minutes and hours. The fact that it took the respondent judges a few hours to review and affirm the probable cause determination of the DOJ Panel does not mean they made no personal evaluation of the evidence attached to the records of the case. 36

Petitioners' reliance on the case of Allado vs. Diokno 37 is misplaced. Our Allado ruling is predicated on the utter failure of the evidence to show the existence of probable cause. Not even the corpus delicti of the crime was established by the evidence of the prosecution in that case. Given the clear insufficiency of the evidence on record, we stressed the necessity for the trial judge to make a further personal examination of the complainant and his witnesses to reach a correct assessment of the existence or non-existence of probable cause before issuing warrants of arrest against the accused. The case at bar, however, rests on a different factual setting. As priorly

discussed, the various types of evidence extant in the records of the case provide substantial basis for a finding of probable cause against the petitioner. The corpus delicti of the crime is a given fact. There is an eyewitness account of the imputed crime given by Alfaro. The alibi defense of petitioner Webb is also disputed by sworn statements of their former maids. It was therefore unnecessary for the respondent judges to take the further step of examining ex parte the complainant and their witnesses with searching questions.

III

Petitioners also complain about the denial of their constitutional right to due process and violation of their right to an impartial investigation. They decry their alleged hasty and malicious prosecution by the NBI and the DOJ Panel. They also assail the prejudicial publicity that attended their preliminary investigation.

We reject these contentions. The records will show that the DOJ Panel did not conduct the preliminary investigation with indecent haste. Petitioners were given fair opportunity to prove lack of probable cause against them. The fairness of this opportunity is well stressed in the Consolidated Comment of the Solicitor General, viz.:

Again, there is no merit in this contention. Petitioners were afforded all the opportunities to be heard. Petitioner Webb actively participated in the preliminary investigation by appearing in the initial hearing held on June 30, 1995 and in the second hearing on July 14, 1995; and by filing a "Motion for Production and Examination of Evidence and Documents" on June 27, 1995 (p. 4, Petition), a "Reply to the compliance and Comment/Manifestation to the Motion for Production and Examination of Evidence" on July 5, 1995 (p. 6, Petition), a "Comment and Manifestation" on July 7, 1995 (p. 6, Petition), his "Counter-Affidavit" on July 14, 1995 (pp. 6-7, Petition) and a "Motion to Resolve" on August 1, 1995. Numerous letter-requests were also sent by the petitioner Webb's counsel to the DOJ Panel requesting the latter to furnish him a copy of the reports prepared by the FBI concerning the petitioner's whereabouts during the material period (Annexes "L", "L-1" and "L-2" of the Supplemental Petition dated August 14, 1995). In fact, not satisfied with the decision of the DOJ Panel not to issuesubpoena duces tecum to Atty.

Arturo L. Mercader, Jr., petitioner Webb filed a "Petition for Injunction, Certiorari, Prohibition and Mandamus" with the Regional Trial Court, Branch 63 of Makati in order to compel said Atty. Mercader, Jr. to produce the first sworn statement of Alfaro for submission to the DOJ Panel. (p. 4, Petition) The said court dismissed the petition after Mercader produced and submitted to the DOJ Panel the first sworn statement of Alfaro, without ruling on the admissibility and credence of the two (2) conflicting and inconsistent sworn statements of the principal witness, Alfaro. (Attached hereto is a copy of the order of Judge Ruben A. Mendiola, RTC-Makati, Branch 63 dated July 28, 1995) marked as Annex "F."

It must also be pointed out that despite the declaration by the DOJ Panel that the preliminary investigation was to be terminated after the hearing held on July 14, 1995, the panel continued to conduct further proceedings, e.g. comparison of the photo-copies of the submitted documents with the originals on July 17, 1995. (p. 7, Petition) The panel even entertained the "Response" submitted by accused Miguel Rodriguez on July 18, 1995. (p. 17 Resolution) In addition to these, the panel even announced that any party may submit additional evidence before the resolution of the case. (p. 8, Petition) From the time the panel declared the termination of the preliminary investigation on July 14, 1995, twenty-seven (27) days elapsed before the resolution was promulgated, and the information eventually filed in the Regional Trial Court of Parañaque on August 10, 1995. This notwithstanding the directive of Section 3(f) Rule 112 of the Revised Rules of Court that the investigating officer shall resolve the case within ten (10) days from the termination of the preliminary investigation. The DOJ Panel precisely allowed the parties to adduce more evidence in their behalf and for the panel to study the evidence submitted more fully. This directly disputes the allegation of the petitioners that the resolution was done with indecent haste in violation of the rights of the petitioners. During the period of twenty-seven (27) days, the petitioners were free to adduce and present additional evidence before the DOJ Panel.

Verily, petitioners cannot now assert that they were denied due process during the conduct of the preliminary investigation simply because the DOJ Panel promulgated

the adverse resolution and filed the Information in court against them.

Petitioners cannot also assail as premature the filing of the Information in court against them for rape with homicide on the ground that they still have the right to appeal the adverse resolution of the DOJ Panel to the Secretary of Justice. The filing of said Information is in accord with Department of Justice Order No. 223, series of 1993, dated June 25, 1993. We quote its pertinent sections, viz.:

Sec. 4. Non-Appealable Cases; Exceptions. — No appeal may be taken from a resolution of the Chief State Prosecutor/Regional State Prosecutor/Provincial or City Prosecutor finding probable causeexcept upon showing of manifest error or grave abuse of discretion. Notwithstanding the showing of manifest error or grave abuse of discretion, no appeal shall be entertained where the appellant had already been arraigned. If the appellant is arraigned during the pendency of the appeal, said appeal shall be dismissed motu propio by the Secretary of Justice.

An appeal/motion for reinvestigation from a resolution finding probable cause, however, shall not hold the filing of the information in court.

Sec. 2. When to appeal. — The appeal must be filed within a period of fifteen (15) days from receipt of the questioned resolution by the party or his counsel. The period shall be interrupted only by the filing of a motion for reconsideration within ten (10) days from receipt of the resolution and shall continue to run from the time the resolution denying the motion shall have been received by the movant or his counsel. (Emphasis supplied)

Without doubt then, the said DOJ Order No. 223 allows the filing of an Information in court after the consummation of the preliminary investigation even if the accused can still exercise the right to seek a review of the prosecutor's recommendation with the Secretary of Justice.

Next, petitioners fault the DOJ Panel for not including Alfaro in the Information considering her alleged conspiratorial participation in the crime of rape with homicide. The non-inclusion of Alfaro is anchored on Republic Act 

No. 6981, entitled "An Act Providing For A Witness Protection, Security And Benefit Program And For Other Purposes" enacted on April 24, 1991. Alfaro qualified under its Section 10, which provides:

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Sec. 10. State Witness. — Any person who has participated in the commission of a crime and desires to a witness for the State, can apply and, if qualified as determined in this Act and by the Department, shall be admitted into the Program whenever the following circumstances are present:

(a) the offense in which his testimony will be used is a grave felony as defined under the R.P.C. or its equivalent under special laws;

(b) there is absolute necessity for his testimony;

(c) there is no other direct evidence available for the proper prosecution of the offense committed;

(d) his testimony can be substantially corroborated on its material points;

(e) he does not appear to be most guilty; and

(f) he has not at anytime been convicted of any crime involving moral turpitude.

An accused discharged from an information or criminal complaint by the court in order that he may be a State Witness pursuant to Sections 9 and 10 of Rule 119 of the Revised Rules of Court may upon his petition be admitted to the Program if he complies with the other requirements of this Act. Nothing in this Act shall prevent the discharge of an accused so that he can be used as a Witness under Rule 119 of the Revised Rules of Court.

Upon qualification of Alfaro to the program, Section 12 of the said law mandates her non-inclusion in the criminal Complaint or Information, thus:

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Sec. 12. Effect of Admission of a State Witness into the Program. — The certification of admission into the Program by the Department shall be given full faith and credit by the provincial or city prosecutor who is required NOT TO INCLUDE THE WITNESS IN THE CRIMINAL COMPLAINT OR INFORMATION and if included therein, to petition the court for his discharge in order that he can be utilized as a State Witness. The court shall order the discharge and exclusion of the said accused from the information.

Admission into the Program shall entitle such State Witness to immunity from criminal prosecution for the offense or offenses in which his testimony will be given or used and all the rights and benefits provided under Section 8 hereof.

The validity of these provisions is challenged by petitioner Webb. It is urged that they constitute ". . . an intrusion into judicial prerogative for it is only the court which has the power under the Rules on Criminal Procedure to discharge an accused as a state witness." The argument is based on Section 9, Rule 119 38which gives the court the prerogative to approve the discharge of an accused to be a state witness. Petitioner's argument lacks appeal for it lies on the faulty assumption that the decision whom to prosecute is a judicial function, the sole prerogative of courts and beyond executive and legislative interference. In truth, the prosecution of crimes appertains to the executive department of government whose principal power and responsibility is to see that our laws are faithfully executed. A necessary component of this power to execute our laws is the right to prosecute their violators. The right to prosecute vests the prosecutor with a wide range of discretion — the discretion of whether, what and whom to charge, the exercise of which depends on a smorgasbord of factors which are best appreciated by prosecutors. We thus hold that it is not constitutionally impermissible for Congress to enact R.A. No. 6981 vesting in the Department of Justice the power to determine who can qualify as a witness in the program and who shall be granted immunity from prosecution. 39 Section 9 of Rule 119 does not support the proposition that the power to choose who shall be a state witness is an inherent judicial prerogative. Under this provision, the court, is given the power to discharge a state witness only because it has already acquired jurisdiction over the crime and the accused. The discharge of an accused is part of the exercise of jurisdiction but is not a recognition of an

inherent judicial function. Moreover, the Rules of Court have never been interpreted to be beyond change by legislation designed to improve the administration of our justice system. R.A. No. 6981 is one of the much sought penal reform laws to help government in its uphill fight against crime, one certain cause of which is the reticence of witnesses to testify. The rationale for the law is well put by the Department of Justice, viz.: "Witnesses, for fear of reprisal and economic dislocation, usually refuse to appear and testify in the investigation/prosecution of criminal complaints/cases. Because of such refusal, criminal complaints/cases have been dismissed for insufficiency and/or lack of evidence. For a more effective administration of criminal justice, there was a necessity to pass a law protecting witnesses and granting them certain rights and benefits to ensure their appearance in investigative bodies/courts." 40 Petitioner Webb's challenge to the validity of R.A. No. 6981 cannot therefore succeed.

Further, petitioners charge the NBI with violating their right to discovery proceedings during their preliminary investigation by suppressing the April 28, 1995 original copy of the sworn statement of Alfaro and the FBI Report. The argument is novel in this jurisdiction and as it urges an expansive reading of the rights of persons under preliminary investigation it deserves serious consideration. To start with, our Rules on Criminal Procedure do not expressly provide for discovery proceedings during the preliminary investigation stage of a criminal proceeding. 41 Sections 10 and 11 of Rule 117 do provide an accused the right to move for a bill of particulars and for production or inspection of material evidence in possession of the prosecution. 42 But these provisions apply after the filing of the Complaint or Information in court and the rights are accorded to the accused to assist them to make an intelligent plea at arraignment and to prepare for trial. 43

This failure to provide discovery procedure during preliminary investigation does not, however, negate its use by a person under investigation when indispensable to protect his constitutional right to life, liberty and property. Preliminary investigation is not too early a stage to guard against any significant erosion of the constitutional right to due process of a potential accused. As aforediscussed, the object of a preliminary investigation is to determine the probability that the suspect committed a crime. We hold that the finding of a probable cause by itself subjects the suspect's life, liberty and property to real risk of loss or diminution. In the case at bar, the risk to the

liberty of petitioners cannot be understated for they are charged with the crime of rape with homicide, a non-bailable offense when the evidence of guilt is strong.

Attuned to the times, our Rules have discarded the pure inquisitorial system of preliminary investigation. Instead, Rule 112 installed a quasi-judicial type of preliminary investigation conducted by one whose high duty is to be fair and impartial. 44 As this Court emphasized in Rolito Go vs. Court of Appeals, 45 "the right to have a preliminary investigation conducted before being bound over for trial for a criminal offense, and hence formally at risk of incarceration or some other penalty, is not a mere formal or technical right; it is a substantive right." A preliminary investigation should therefore be scrupulously conducted so that the constitutional right to liberty of a potential accused can be protected from any material damage. We uphold the legal basis of the right of petitioners to demand from their prosecutor, the NBI, the original copy of the April 28, 1995 sworn statement of Alfaro and the FBI Report during their preliminary investigation considering their exculpatory character, and hence, unquestionable materiality to the issue of their probable guilt. The right is rooted on the constitutional protection of due process which we rule to be operational even during the preliminary investigation of a potential accused. It is also implicit in section (3) (a) of Rule 112 which requires during the preliminary investigation the filing of a sworn complaint, which shall ". . . state the known address of the respondent and be accompanied by affidavits of the complainant and his witnesses as well as other supporting documents . . ."

In laying down this rule, the Court is not without enlightened precedents from other jurisdictions. In the 1963 watershed case of Brady v. Maryland 46 the United States Supreme Court held that "suppression of evidence favorable to an accused upon request violates due process where the evidence is material to guilt or punishment, irrespective of the good faith or bad faith of the prosecution." Its progeny is the 1935 case of Mooney v. Holohan 47 which laid down the proposition that a prosecutor's intentional use of perjured testimony to procure conviction violates due process. Thus, evolved jurisprudence firming up the prosecutor's duty to disclose to the defense exculpatory evidence in its possession. 48 The rationale is well put by Justice Brennan in Brady 49 — "society wins not only when the guilty are convicted but when criminal trials are fair." Indeed, prosecutors should not treat litigation like a game of

poker where surprises can be sprung and where gain by guile is not punished.

But given the right of petitioners to compel the NBI to disclose exculpatory evidence in their favor, we are not prepared to rule that the initial non-production of the original sworn statement of Alfaro dated April 28, 1995 could have resulted in the reasonable likelihood that the DOJ Panel would not have found probable cause. To be sure, the NBI, on July 4, 1995, upon request of petitioners, submitted a photocopy of Alfaro's April 28, 1995 sworn statement. It explained it cannot produce the original as it had been lost. Fortunately, petitioners, on July 28, 1995, were able to obtain a copy of the original from Atty. Arturo Mercader in the course of the proceedings in Civil Case No. 951099. 50 As petitioners admit, the DOJ Panel accepted the original of Alfaro's April 28, 1995 sworn statement as a part of their evidence. 51 Petitioners thus had the fair chance to explain to the DOJ Panel then still conducting their preliminary investigation the exculpatory aspects of this sworn statement. Unfortunately for petitioners, the DOJ Panel still found probable cause to charge them despite the alleged material discrepancies between the first and second sworn statements of Alfaro. For reasons we have expounded, this finding of probable cause cannot be struck down as done with grave abuse of discretion. 52 On the other hand, the FBI Report while corroborative of the alibi of petitioner Webb cannot by itself reverse the probable cause finding of the DOJ Panel in light of the totality of evidence presented by the NBI.

Finally, we come to the argument of petitioner that the DOJ Panel lost its impartiality due to the prejudicial publicity waged in the press and broadcast media by the NBI.

Again, petitioners raise the effect of prejudicial publicity on their right to due process while undergoing preliminary investigation. We find no procedural impediment to its early invocation considering the substantial risk to their liberty while undergoing a preliminary investigation.

In floating this issue, petitioners touch on some of the most problematic areas in constitutional law where the conflicting demands of freedom of speech and of the press, the public's right to information, and an accused's right to a fair and impartial trial collide and compete for prioritization. The process of pinpointing where the balance should be struck has divided men of learning as the balance keeps moving either on

the side of liberty or on the side of order as the tumult of the time and the welfare of the people dictate. The dance of balance is a difficult act to follow.

In democratic settings, media coverage of trials of sensational cases cannot be avoided and oftentimes, its excessiveness has been aggravated by kinetic developments in the telecommunications industry. For sure, few cases can match the high volume and high velocity of publicity that attended the preliminary investigation of the case at bar. Our daily diet of facts and fiction about the case continues unabated even today. Commentators still bombard the public with views not too many of which are sober and sublime. Indeed, even the principal actors in the case — the NBI, the respondents, their lawyers and their sympathizers — have participated in this media blitz. The possibility of media abuses and their threat to a fair trial notwithstanding, criminal trials cannot be completely closed to the press and the public. In the seminal case of Richmond Newspapers, Inc. v. Virginia, 53 it was wisely held:

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(a) The historical evidence of the evolution of the criminal trial in Anglo-American justice demonstrates conclusively that at the time this Nation's organic laws were adopted, criminal trials both here and in England had long been presumptively open, thus giving assurance that the proceedings were conducted fairly to all concerned and discouraging perjury, the misconduct of participants, or decisions based on secret bias or partiality. In addition, the significant community therapeutic value of public trials was recognized: when a shocking crime occurs, a community reaction of outrage and public protest often follows, and thereafter the open processes of justice serve an important prophylactic purpose, providing an outlet for community concern, hostility, and emotion. To work effectively, it is important that society's criminal process "satisfy the appearance of justice," Offutt v. United States, 348 US 11, 14, 99 L Ed 11, 75 S Ct 11, which can best be provided by allowing people to observe such process. From this unbroken, uncontradicted history, supported by reasons as valid today as in centuries past, it must be concluded that a presumption of openness inheres in the very nature of a criminal trial under this Nation's system of justice, Cf., e.g., Levine v. United States, 362 US 610, 4 L Ed 2d 989, 80 S Ct 1038.

(b) The freedoms of speech, press, and assembly, expressly guaranteed by the First Amendment, share a common core purpose of assuring freedom of communication on matters relating to the functioning of government. In guaranteeing freedoms such as those of speech and press, the First Amendment can be read as protecting the right of everyone to attend trials so as to give meaning to those explicit guarantees; the First Amendment right to receive information and ideas means, in the context of trials, that the guarantees of speech and press, standing alone, prohibit government from summarily closing courtroom doors which had long been open to the public at the time the First Amendment was adopted. Moreover, the right of assembly is also relevant, having been regarded not only as an independent right but also as a catalyst to augment the free exercise of the other First Amendment rights with which it was deliberately linked bythe draftsmen. A trial courtroom is a public place where the people generally — and representatives of the media — have a right to be present, and where their presence historically has been thought to enhance the integrity and quality of what takes place.

(c) Even though the Constitution contains no provision which by its terms guarantees to the public the right to attend criminal trials, various fundamental rights, not expressly guaranteed, have been recognized as indispensable to the enjoyment of enumerated rights. The right to attend criminal trials is implicit in the guarantees of the First Amendment; without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of speech and of the press could be eviscerated.

Be that as it may, we recognize that pervasive and prejudicial publicity under certain circumstances can deprive an accused of his due process right to fair trial. Thus, in Martelino, et al. vs. Alejandro, et al., 54 we held that to warrant a finding of prejudicial publicity there must be allegation and proof that the judges have been unduly influenced, not simply that they might be, by the barrage of publicity. In the case at bar, we find nothing in the records that will prove that the tone and content, of the publicity that attended the investigation of petitioners fatally infected the fairness and impartiality of the DOJ Panel. Petitioners cannot just rely on the subliminal effects of publicity

on the sense of fairness of the DOJ Panel, for these are basically unbeknown and beyond knowing. To be sure, the DOJ Panel is composed of an Assistant Chief State Prosecutor and Senior State Prosecutors. Their long experience in criminal investigation is a factor to consider in determining whether they can easily be blinded by the klieg lights of publicity. Indeed, their 26-page Resolution carries no indubitable indicia of bias for it does not appear that they considered any extra-record evidence except evidence properly adduced by the parties. The length of time the investigation was conducted despite its summary nature and the generosity with which they accommodated the discovery motions of petitioners speak well of their fairness. At no instance, we note, did petitioners seek the disqualification of any member of the DOJ Panel on the ground of bias resulting from their bombardment of prejudicial publicity.

It all remains to state that the Vizconde case will move to a more critical stage as petitioners will now have to undergo trial on the merits. We stress that probable cause is not synonymous with guilt and while the light of publicity may be a good disinfectant of unfairness, too much of its heat can bring to flame an accused's right to fair trial. Without imposing on the trial judge the difficult task of supervising every specie of speech relating to the case at bar, it behooves her to be reminded of the duty of a trial judge in high profile criminal cases to control publicity prejudicial to the fair administration of justice. 55 The Court reminds judges that our ability to dispense impartial justice is an issue in every trial and in every criminal prosecution, the judiciary always stands as a silent accused. More than convicting the guilty and acquitting the innocent, the business of the judiciary is to assure fulfillment of the promise that justice shall be done and is done — and that is the only way for the judiciary to get an acquittal from the bar of public opinion.

IN VIEW WHEREOF, the petitions are dismissed for lack of showing of grave abuse of discretion on the part of the respondents. Costs against petitioners.

SO ORDERED.

PEOPLE OF THEPHILIPPINES,Plaintiff-Appellee,

G.R. No. 191366

Present:

- versus -

ARNOLD MARTINEZ  YANGELES, EDGAR DIZONY FERRER, REZIN MARTINEZY CAROLINO, and RAFAELGONZALES Y CUNANAN,                          Accused-Appellants.

CARPIO, J.,Chairperson,NACHURA,PERALTA,ABAD, andMENDOZA, JJ.

Promulgated:     December 13, 2010

 X ---------------------------------------------------------------------------------------X  D E C I S I O NMENDOZA, J.:           This is an appeal from the August 7, 2009 Decision[1] of the Court of Appeals (CA), in CA-G.R. HC-NO. 03269, which affirmed the February 13, 2008 Decision[2] of the Regional Trial Court, Branch 41, Dagupan City (RTC), in Criminal Case No. 2006-0525-D, finding the accused guilty of violating Section 13, in relation to Section 11, Article II of Republic Act No. 9165 for Possession of Dangerous Drugs During Parties, Social Gatherings or Meetings. The Facts 

The Information indicting the accused reads: 

That on or about the 2nd day of September 2006, in the City of Dagupan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, ARNOLD MARTINEZ y ANGELES, EDGAR DIZON y FERRER, REZIN MARTINEZ y CAROLINO, ROLAND DORIA y DIAZ and RAFAEL GONZALES y CUNANAN, without authority of law, confederating together, acting jointly and helping one another, did then and there wilfully, unlawfully and criminally, sniff and possess dangerous drugs (shabu residues) contained in empty plastic sachets and rolled aluminum foil, during a

party, or at a social gathering or meeting, or in the proximate company of at least two (2) person[s]. Contrary to Section 13, Article II, R.A. 9165.[3]

 Version of the Prosecution 

As culled from the testimonies of prosecution witnesses, Police Officer 1 Bernard Azardon (PO1 Azardon), one of the apprehending officers, and Police Inspector Lady Ellen Maranion (P/Insp. Maranion), the forensic chemical officer, it appears that on September 2, 2006, at around 12:45 o’clock in the afternoon, PO1 Azardon was on duty at the Police Community Precinct II along Arellano Street, Dagupan City, when a concerned citizen entered the precinct and reported that a pot session was going on in the house of accused Rafael Gonzales (Gonzales) in Trinidad Subdivision, Dagupan City. Upon receipt of the report, PO1 Azardon, PO1 Alejandro Dela Cruz (PO1 Dela Cruz), and members of the Special Weapons and Tactics (SWAT) team hied to Trinidad Subdivision, Dagupan City. Upon inquiry from people in the area, the house of Gonzales was located.

 As the police officers entered the gate of the house, they saw

accused Orlando Doria (Doria) coming out of the side door and immediately arrested him.  Inside the house, they saw accused Gonzales, Arnold Martinez (A. Martinez), Edgar Dizon (Dizon), and Rezin Martinez (R. Martinez) in a room.  The four were surprised by the presence of the police.  In front of them were open plastic sachets (containing shabu residue), pieces of rolled used aluminum foil and pieces of used aluminum foil. 

 The accused were arrested and brought to the police

precinct.  The items found in the room were seized and turned over to the Pangasinan Provincial Police Crime Laboratory Officer, P/Insp. Maranion. The latter conducted a laboratory examination on the seized items and all 115 plastic sachets, 11 pieces of rolled used aluminum foil, and 27 of the 49 pieces of used aluminum foil tested positive for methamphetamine hydrochloride. The accused were subjected to a drug test and, except for Doria, they were found to be positive for methamphetamine hydrochloride.

 Version of the Defense           The defense, through its witnesses, accused A. Martinez, Dizon, and R. Martinez, claimed that in the morning of September 2, 2006, the three of them were along Arellano Street in Trinidad Subdivision, Dagupan City, to meet with a certain Apper who bumped the passenger jeep of R. Martinez and who was to give the materials for the painting of said jeep. As they were going around the subdivision looking for Apper, they saw Gonzales in front of his house and asked him if he noticed a person pass by.  While they were talking, Doria arrived.  It was then that five to seven policemen emerged and apprehended them. They were handcuffed and brought to the police station in Perez, Dagupan City, where they were incarcerated and charged with sniffing shabu. The Ruling of the RTC 

The case against Doria was dismissed on a demurrer to evidence.           On February 13, 2008, the RTC rendered its decision, the dispositve portion of which reads: 

WHEREFORE, premises considered, judgment is hereby rendered finding accused ARNOLD MARTINEZ y Angeles, EDGAR DIZON y Ferrer, REZIN MARTINEZ y Carolino, and RAFAEL GONZALES y Cunanan GUILTY beyond reasonable doubt of the crime of Possession of Dangerous Drugs During Parties, Social Gatherings or Meetings defined and penalized under Section 13 in relation to Section 11, Article II of Republic Act 9165, and each of them is sentenced to suffer the penalty of life imprisonment and to pay the fine in the amount of P500,000.00, and to pay the cost of suit. 

The subject items are hereby forfeited in favor of the government and to be disposed of in accordance with the law. 

SO ORDERED.[4]

 The RTC was of the view that the positive testimony of

prosecution witness PO1 Azardon, without any showing of ill-motive on his part, prevailed over the defenses of denial and alibi put up by the accused.  The accused were held to have been in constructive possession of the subject items. A conspiracy was also found present as there was a common purpose to possess the dangerous drug.   The Ruling of the CA 

The CA ruled that there was sufficient evidence to support the findings of the RTC as to the constructive possession of the dangerous drugs by the accused.  It further held that although the procedure regarding the custody and disposition of evidence prescribed by Section 21 of R.A. No. 9165 was not strictly complied with, the integrity and evidentiary value of the evidence were nonetheless safeguarded.  The CA was of the view that the presumption of regularity in the performance of official duty was not sufficiently controverted by the accused. 

Not in conformity, the accused now interposes this appeal before this Court praying for the reversal of the subject decision, presenting the following

 Assignment of Errors  

For accused Arnold Martinez, Edgar Dizon and Rezin Martinez 

1.     The lower court erred in finding the accused-appellants  

      to be having a pot session at the time of their arrest;

 2.       The lower court erred in not seeing through the

antics of the police to plant the shabu paraphernalia to justify the arrest of the accused-appellants without warrant;

 

3.       The lower court erred in not finding that the corpus delicti has not been sufficiently established;

 4.       The lower court erred in not finding the

uncorroborated testimony of PO1 Azardon insufficient to convict the accused-appellants of the crime charged;

 5.       The lower court erred in not acquitting the

accused-appellants. 

For accused Rafael Gonzales 

I 

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT DESPITE THE PROSECUTION’S FAILURE TO OVERTHROW THE CONSTITUTIONAL PRESUMPTION OF INNOCENCE. 

II 

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT DESPITE THE PROSECUTION’S FAILURE TO ESTABLISH THE CHAIN OF CUSTODY OF THE ALLEGED CONFISCATED DRUG.

 After an assiduous assessment of the evidentiary records, the

Court finds that the prosecution failed to prove the guilt of the accused. The principal reasons are 1] that the evidence against the accused are inadmissible; and 2] that granting the same to be admissible, the chain of custody has not been duly established.

 Illegal Arrest, Search and Seizure 

Indeed, the accused is estopped from assailing the legality of his arrest if he fails to raise such issue before arraignment.[5] However, this waiver is limited only to the arrest. The legality of an arrest affects only the jurisdiction of the court over the person of the accused. A waiver of an illegal warrantless arrest does not carry with

it a waiver of the inadmissibility of evidence seized during the illegal warrantless arrest.[6]   

Although the admissibility of the evidence was not raised as in issue by the accused, it has been held that this Court has the power to correct any error, even if unassigned, if such is necessary in arriving at a just decision,[7] especially when the transcendental matter of life and liberty is at stake.[8] While it is true that rules of procedure are intended to promote rather than frustrate the ends of justice, they nevertheless must not be met at the expense of substantial justice. Time and again, this Court has reiterated the doctrine that the rules of procedure are mere tools intended to facilitate the attainment of justice, rather than frustrate it. Technicalities should never be used to defeat substantive rights.[9] Thus, despite the procedural lapses of the accused, this Court shall rule on the admissibility of the evidence in the case at bench. The clear infringement of the accused’s right to be protected against unreasonable searches and seizures cannot be ignored.

 The State cannot, in a manner contrary to its constitutional

guarantee, intrude into the persons of its citizens as well as into their houses, papers and effects.[10] Sec. 2, Art. III, of the 1987 Constitution provides: 

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

 This constitutional guarantee, however, is not a blanket

prohibition against all searches and seizures without warrant. Arrests and seizures in the following instances are allowed even in the absence of a warrant — (i) warrantless search incidental to a lawful arrest;[11] (ii) search of evidence in "plain view;" (iii) search of a moving vehicle; (iv) consented warrantless search; (v) customs

search; (vi) stop and frisk; and (vii) exigent and emergency circumstances.[12]

 This case would appear to fall under either a warrantless search

incidental to a lawful arrest or a plain view search, both of which require a lawful arrest in order to be considered valid exceptions to the constitutional guarantee. Rule 113 of the Revised Rules of Criminal Procedure provides for the circumstances under which a warrantless arrest is lawful. Thus:

 Sec. 5. Arrest without warrant; when lawful. – A

peace officer or a private person may, without a warrant, arrest a person: 

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

 (b) When an offense has just been committed

and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and

 (c) When the person to be arrested is a

prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

 In cases falling under paragraphs (a) and (b) above,

the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with section 7 of Rule 112.

 A review of the facts reveal that the arrest of the accused was

illegal and the subject items were confiscated as an incident thereof.  According to the testimony of PO1 Azardon and his Joint Affidavit[13] with PO1 Dela Cruz, they proceeded to, and entered, the

house of accused Gonzales based solely on the report of a concerned citizen that a pot session was going on in said house, to wit: 

Q:        I go back to the information referred to you by the informant, did he not tell you how many persons were actually conducting the pot session?

A:        Yes, sir. Q:        When you went to the place of Rafael Gonzales, of

course you were not armed with a search warrant, correct?

A:        None, sir. Q:        Before the information was given to you by your

alleged informant, you did not know personally Rafael Gonzales?

A:        I have not met [him] yet but I heard his name, sir. 

Q:        When this informant told you that he was told that there was [an] ongoing pot session in the house of Rafael Gonzales, was this report to you placed in the police blotter before you proceeded to the house of Rafael Gonzales?

A:        I think it was no longer recorded, sir. Q:        In other words, you did not even bother to get the

personal data or identity of the person who told you that he was allegedly informed that there was an ongoing pot session in the house of Rafael Gonzales?

A:        What I know is that he is a jeepney driver of a downtown jeepney but he does not want to be identified because he was afraid, sir.

 Q:        And likewise, he did not inform you who told him

that there was an ongoing pot session in the house of Rafael Gonzales?

A:        No more, sir. Q:        But upon receiving such report from that jeepney

driver you immediately formed a group and went to the place of Rafael Gonzales?

A:        Yes, sir. x x x 

Q:          When you were at the open gate of the premises of Rafael Gonzales, you could not see what is happening inside the house of Rafael Gonzales?

A:          Yes, sir. Q:          You did not also see the alleged paraphernalia as

well as the plastic sachet of shabu on the table while you were outside the premises of the property of Rafael Gonzales?

 x x x Q:          Before they entered the premises they could not

see the paraphernalia?  COURT:         Answer. A:        Of course because they were inside the room, how

could we  see them, sir. Q:          But still you entered the premises, only because a

certain person who told you that he was informed by another person that there was an ongoing pot session going on inside the house of Rafael Gonzales?

A:          Yes, sir. Q:          And that is the only reason why you barged in

inside the house of Rafael Gonzales and you arrested the persons you saw?

A:          Yes, sir.[14]

  Paragraph (c) of Rule 113 is clearly inapplicable to this case.

Paragraphs (a) and (b), on the other hand, may be applicable and both require probable cause to be present in order for a warrantless arrest to be valid. Probable cause has been held to signify a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man’s belief that the person accused is guilty of the offense with which he is charged.[15]

 Although this Court has ruled in several dangerous drugs

cases[16] that tipped information is sufficient probable cause to effect a

warrantless search,[17] such rulings cannot be applied in the case at bench because said cases involve either a buy-bust operation or drugs in transit, basically, circumstances other than the sole tip of an informer as basis for the arrest. None of these drug cases involve police officers entering a house without warrant to effect arrest and seizure based solely on an informer’s tip.  The case of People v. Bolasa[18]  is informative on this matter.

 In People v. Bolasa, an anonymous caller tipped off the police

that a man and a woman were repacking prohibited drugs at a certain house. The police immediately proceeded to the house of the suspects. They walked towards the house accompanied by their informer. When they reached the house, they peeped inside through a small window and saw a man and woman repacking marijuana. They then entered the house, introduced themselves as police officers, confiscated the drug paraphernalia, and arrested the suspects. This Court ruled:

 The manner by which accused-appellants were

apprehended does not fall under any of the above-enumerated categories. Perforce, their arrest is illegal. First, the arresting officers had no personal knowledge that at the time of their arrest, accused-appellants had just committed, were committing, or were about to commit a crime. Second, the arresting officers had no personal knowledge that a crime was committed nor did they have any reasonable ground to believe that accused-appellants committed it. Third, accused-appellants were not prisoners who have escaped from a penal establishment.

Neither can it be said that the objects were seized in plain view. First, there was no valid intrusion. As already discussed, accused-appellants were illegally arrested. Second, the evidence, i.e., the tea bags later on found to contain marijuana, was not inadvertently discovered. The police officers intentionally peeped first through the window before they saw and ascertained the activities of accused-appellants inside the room. In like manner, the search cannot be categorized as a search of a moving vehicle, a consented warrantless search, a customs search, or a stop and frisk; it cannot even fall under exigent and emergency circumstances, for the evidence at hand is bereft of any such showing.

On the contrary, it indicates that the apprehending officers should have conducted first a surveillance considering that the identities and address of the suspected culprits were already ascertained. After conducting the surveillance and determining the existence of probable cause for arresting accused-appellants, they should have secured a search warrant prior to effecting a valid arrest and seizure. The arrest being illegal ab initio, the accompanying search was likewise illegal. Every evidence thus obtained during the illegal search cannot be used against accused-appellants; hence, their acquittal must follow in faithful obeisance to the fundamental law.[19]

 It has been held that personal knowledge of facts in arrests

without warrant must be based upon probable cause, which means an actual belief or reasonable grounds of suspicion. The grounds of suspicion are reasonable when the suspicion, that the person to be arrested is probably guilty of committing an offense, is based on actual facts, that is, supported by circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested. [20]

 As to paragraph (a) of Section 5 of Rule 113, the arresting

officers had no personal knowledge that at the time of the arrest, accused had just committed, were committing, or were about to commit a crime, as they had no probable cause to enter the house of accused Rafael Gonzales in order to arrest them. As to paragraph (b), the arresting officers had no personal knowledge of facts and circumstances that would lead them to believe that the accused had just committed an offense. As admitted in the testimony of PO1 Azardon, the tip originated from a concerned citizen who himself had no personal knowledge of the information that was reported to the police:

 Q:        Mr. Witness, you claimed that the reason for

apprehending all the accused was based on a tip-off by an informant?

A:        Yes, sir. 

Q:        What exactly [did] that informant tell you?

A:        He told us that somebody told him that there was an ongoing pot session in the house of one of the accused Rafael Gonzales, sir.

 Q:        You mean to say that it was not the informant

himself to whom the information originated but from somebody else?

A:        That was what he told me, sir. Q:        Because of that you proceeded to where the

alleged pot session was going on?  [No Answer] Q:        Did you[r] informant particularly pinpointed [sic] to

where the alleged pot session was going on?A:        No more because he did not go with us, sir. Q:        So you merely relied on what he said that

something or a pot session was going on somewhere in Arellano but you don’t know the exact place where the pot session was going on?

A:        Yes, sir. Q:        And your informant has no personal

knowledge as to the veracity of the alleged pot session because he claimed that he derived that information from somebody else?

A:        This is what he told us that somebody told him that there was an ongoing pot session, sir.

 Q:        Despite of [sic] that information you proceeded to

where?A:        Trinidad Subdivision, sir. x x x Q:        Mr. Witness, did your informant named [sic] those

included in the alleged pot session?A:        No, sir. Q:        That was, because your informant don’t [sic] know

physically what was really happening there?A:        He was told by another person that there was an

ongoing pot session there, sir.[21] [Emphasis supplied]

 

Neither can it be said that the subject items were seized in plain view.  The elements of plainview are: (a) a prior valid intrusion based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties; (b) the evidence was inadvertently discovered by the police who have the right to be where they are; (c) the evidence must be immediately apparent; and, (d) "plain view" justified mere seizure of evidence without further search.[22] 

 The evidence was not inadvertently discovered as the police

officers intentionally entered the house with no prior surveillance or investigation before they discovered the accused with the subject items. If the prior peeking of the police officers in Bolasa was held to be insufficient to constitute plain view, then more so should the warrantless search in this case be struck down.  Neither can the search be considered as a search of a moving vehicle, a consented warrantless search, a customs search, a stop and frisk, or one under exigent and emergency circumstances.

 The apprehending officers should have first conducted a

surveillance considering that the identity and address of one of the accused were already ascertained. After conducting the surveillance and determining the existence of probable cause, then a search warrant should have been secured prior to effecting arrest and seizure. The arrest being illegal, the ensuing search as a result thereof is likewise illegal. Evidence procured on the occasion of an unreasonable search and seizure is deemed tainted for being the proverbial fruit of a poisonous tree and should be excluded.[23] The subject items seized during the illegal arrest are thus inadmissible. The drug, being the very corpus delicti of the crime of illegal possession of dangerous drugs, its inadmissibility thus precludes conviction, and calls for the acquittal of the accused.

 As has been noted previously by this Court, some lawmen,

prosecutors and judges have glossed over illegal searches and seizures in cases where law enforcers are able to present the alleged evidence of the crime, regardless of the methods by which they were obtained. This attitude tramples on constitutionally-guaranteed rights in the name of law enforcement. It is ironic that such enforcement of the law fosters the breakdown of our system of justice and the

eventual denigration of society. While this Court appreciates and encourages the efforts of law enforcers to uphold the law and to preserve the peace and security of society, we nevertheless admonish them to act with deliberate care and within the parameters set by the Constitution and the law.[24] 

  

Chain of Custody           Even granting that the seized items are admissible as evidence, the acquittal of the accused would still be in order for failure of the apprehending officers to comply with the chain of custody requirement in dangerous drugs cases.

 The accused contend that the identity of the seized drug was not

established with moral certainty as the chain of custody appears to be questionable, the authorities having failed to comply with Sections 21 and 86 of R.A. No. 9165, and Dangerous Drug Board (DDB) Resolution No. 03, Series of 1979, as amended by Board Regulation No. 2, Series of 1990. They argue that there was no prior coordination with the Philippine Drug Enforcement Agency (PDEA), no inventory of the confiscated items conducted at the crime scene, no photograph of the items taken, no compliance with the rule requiring the accused to sign the inventory and to give them copies thereof, and no showing of how the items were handled from the time of confiscation up to the time of submission to the crime laboratory for testing. Therefore, the corpus delicti was not proven, thereby producing reasonable doubt as to their guilt.  Thus, they assert that the presumption of innocence in their favor was not overcome by the presumption of regularity in the performance of official duty. 

           The essential requisites to establish illegal possession of dangerous drugs are: (i) the accused was in possession of the dangerous drug, (ii) such possession is not authorized by law, and (iii) the accused freely and consciously possessed the dangerous drug.[25]  Additionally, this being a case for violation of Section 13 of R.A. No. 9165, an additional element of the crime is (iv) the possession of the dangerous drug must have occurred during a party,

or at a social gathering or meeting, or in the proximate company of at least two (2) persons. 

The existence of the drug is the very corpus delicti of the crime of illegal possession of dangerous drugs and, thus, a condition sine qua non for conviction. In order to establish the existence of the drug, its chain of custody must be sufficiently established. The chain of custody requirement is essential to ensure that doubts regarding the identity of the evidence are removed through the monitoring and tracking of the movements of the seized drugs from the accused, to the police, to the forensic chemist, and finally to the court.[26]  Malillin v. People was the first in a growing number of cases to explain the importance of chain of custody in dangerous drugs cases, to wit:

 As a method of authenticating evidence, the chain of

custody rule requires that the admission of an exhibit be preceded by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be. It would include testimony about every link in the chain, from the moment the item was picked up to the time it is offered into evidence, in such a way that every person who touched the exhibit would describe how and from whom it was received, where it was and what happened to it while in the witness' possession, the condition in which it was received and the condition in which it was delivered to the next link in the chain. These witnesses would then describe the precautions taken to ensure that there had been no change in the condition of the item and no opportunity for someone not in the chain to have possession of the same.[27]

 Section 1(b) of DDB Regulation No. 1, Series of 2002,[28] defines

chain of custody as follows: 

b. “Chain of Custody” means the duly recorded authorized movements and custody of seized drugs or controlled chemicals or plant sources of dangerous drugs or laboratory equipment of each stage, from the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping to presentation in court for destruction. Such record of movements and custody of seized item shall include the identity and signature of the person who held temporary custody of the seized item, the date and time

when such transfer of custody were made in the course of safekeeping and used in court as evidence, and the final disposition;                                                            

 Paragraph 1, Section 21, Article II of R.A. No. 9165, provides for

safeguards for the protection of the identity and integrity of dangerous drugs seized, to wit:

 SEC. 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. – The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner: (1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof.

  

People v. Habana thoroughly discusses the proper procedure for the custody of seized or confiscated items in dangerous drugs cases in order to ensure their identity and integrity, as follows:

 Usually, the police officer who seizes the suspected

substance turns it over to a supervising officer, who would then send it by courier to the police crime laboratory for testing.  Since it is unavoidable that possession of the substance changes hand a number of times, it is imperative for the officer who seized the substance from the suspect to place his marking on its plastic container and seal the same, preferably with adhesive tape that cannot be removed without leaving a tear on the plastic

container.  At the trial, the officer can then identify the seized substance and the procedure he observed to preserve its integrity until it reaches the crime laboratory.

 If the substance is not in a plastic container, the

officer should put it in one and seal the same.  In this way the substance would assuredly reach the laboratory in the same condition it was seized from the accused.  Further, after the laboratory technician tests and verifies the nature of the substance in the container, he should put his own mark on the plastic container and seal it again with a new seal since the police officer’s seal has been broken.  At the trial, the technician can then describe the sealed condition of the plastic container when it was handed to him and testify on the procedure he took afterwards to preserve its integrity.  

If the sealing of the seized substance has not been made, the prosecution would have to present every police officer, messenger, laboratory technician, and storage personnel, the entire chain of custody, no matter how briefly one’s possession has been.  Each of them has to testify that the substance, although unsealed, has not been tampered with or substituted while in his care.[29]

 Section 21(a) of the Implementing Rules and Regulations (IRR)

of R.A. No. 9165 further elaborates, and provides for, the possibility of non-compliance with the prescribed procedure:

 (a) The apprehending officer/team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof: Provided, that the physical inventory and photograph shall be conducted at the place where the search warrant is served; or at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable, in case of warrantless seizures; Provided, further that non-compliance with

these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items. [Emphasis supplied]

           Accordingly, non-compliance with the prescribed procedural requirements will not necessarily render the seizure and custody of the items void and invalid, provided that (i) there is a justifiable ground for such non-compliance, and (ii) the integrity and evidentiary value of the seized items are properly preserved. In this case, however, no justifiable ground is found availing, and it is apparent that there was a failure to properly preserve the integrity and evidentiary value of the seized items to ensure the identity of the corpus delicti from the time of seizure to the time of presentation in court. A review of the testimonies of the prosecution witnesses and the documentary records of the case reveals irreparably broken links in the chain of custody.           According to the apprehending police officers in their Joint Affidavit, the following were confiscated from the accused, to wit: 

a)     Several pcs of used empty plastic sachets containing suspected shabu residues.

 b)     Eight used (8) disposable lighters ( two (2) pcs

colored orange, two (2) pcs colored yellow, one (1) pc colored green & one (1) pc colored white ).

 c)      Several pcs of used rolled aluminum foil containing

suspected shabu residues. 

d)     Several pcs of used cut aluminum foil containing suspected shabu residues.

 e)     One (1) pc glass tube containing suspected shabu

residues.[30]

[Emphases supplied]

 

At the police station, the case, the accused, and the above-mentioned items were indorsed to Duty Investigator Senior Police Officer 1 Pedro Urbano, Jr. (SPO1 Urbano) for proper disposition.[31] A letter-request for laboratory examination was prepared by Police Superintendent Edgar Orduna Basbag for the following items:

 a)      Pieces of used empty small plastic sachets with

suspected shabu residues marked “DC&A-1.” b)      Pieces of used rolled and cut aluminum foil with

suspected shabu residues marked “DC&A-2.” 

c)      Pieces of used cut aluminum foil with suspected shabu residues marked “DC&A-3.”[32]

                                                                                [Emphases supplied] The letter-request and above-mentioned items were submitted

to P/Insp. Maranion by SPO3 Froilan Esteban (SPO3 Esteban). Final Chemistry Report No. D-042-06L listed the specimens which were submitted for testing, to wit: 

SPECIMENS SUBMITTED: A – A1 to A115 – One Hundred fifteen (115) open transparent plastic sachet with tag each containing suspected shabu residue without markings. B – B1 to B11 – Eleven (11) rolled used aluminum foil with tag each containing suspected shabu residue without markings. C – C1 to C49 – Forty-nine (49) used aluminum foil with tag each containing suspected shabu residue without markings.[33]

                                                                                    [Emphases supplied] Three days after the subject items were seized, or on September

5, 2006, a Confiscation Receipt was issued by PO1 Azardon and PO1 Dela Cruz, which reads: 

DCPS AID SOTG                                                     05 September 2006

 CONFISCATION RECEIPT  TO WHOM IT MAY CONCERN: 

THIS IS TO CERTIFY that on or about 12:45 noon of September 4, 2006, we together with our precinct supervisor, SPO4 Pedro Belen Jr., and SWAT members composed of SPO1 Marlon Decano, PO3 Manuel Garcia, PO2 Adriano Cepiroto and PO1 Aldrin Guarin apprehended the following names of persons of ARNOLD MARTINEZ Y ANGELES, 37 yrs old, married, jobless, a resident of Lucao Dist., this city; EDGAR DIZON Y FERRER, 36 yrs old, single, tricycle driver, a resident of 471 Lucao Dist., this city. REZIN MARTINEZ Y CAROLINO, 44 yrs old, married, jitney driver, a resident of Lucao Disttrict this city; ROLAND DORIA Y DIAZ, 39 yrs old, married, businessman, resident of Cabeldatan, Malasiqui, Pangasinan and RAFAEL GONZALES Y CUNANAN, 49 yrs old, separated, jobless and a resident of Trinidad Subd., Arellano-Bani this city. 

Suspects were duly informed of their constitutional rights and were brought to Dagupan City Police Station, Perez Market Site Dagupan City and indorsed to Duty Desk Officer to record the incident and the sachet of suspected Shabu Paraphernalias were brought to PNP Crime Laboratory, Lingayen, Pangasinan for Laboratory Examination. Seizing Officer: (sgd.)                                                              (sgd.)PO1 Bernard B Azardon                             PO1 Alejandro Dela CruzAffiant                                                            Affiant Remarks: Refused to SignedRefused to SignedRefused to SignedRefused to SignedRefused to Signed [34]

           [Emphases supplied]

           The 115 open transparent plastic sachets, 11 pieces of rolled used aluminum foil, and 27 (of the 49) pieces of used aluminum foil, all containing shabu residue, as identified in the Final Chemistry Report, were presented in court and marked as Exhibits “H” and series, “I” and series, and “J” and series, respectively. Said items were identified by PO1 Azardon and P/Insp. Maranion at the witness stand.[35]

           The CA ruled that the integrity and evidentiary value of the subject items were properly preserved as there was sufficient evidence to prove that the items seized from the accused were the same ones forwarded to the crime laboratory for examination, as shown in the Confiscation Receipt and the letter-request for laboratory examination. 

A review of the chain of custody indicates, however, that the CA is mistaken.           First, the apprehending team failed to comply with Section 21 of R.A. No. 9165.  After seizure and confiscation of the subject items, no physical inventory was conducted in the presence of the accused, or their representative or counsel, a representative from the media and the DOJ, and any elected public official. Thus, no inventory was prepared, signed, and provided to the accused in the manner required by law.  PO1 Azardon, in his testimony,[36] admitted that no photographs were taken. The only discernable reason proffered by him for the failure to comply with the prescribed procedure was that the situation happened so suddenly.  Thus: 

Q:        But upon receiving such report from that jeepney driver you immediately formed a group and went to the place of Rafael Gonzales?

A:        Yes, sir. Q:        Such that you did not even inform the PDEA before

you barged in that place of Rafael Gonzales?A:        It was so suddenly, [sic] sir. 

Q:        And that explains the reason why you were not able to have pictures taken, is that correct?

A:        Yes, sir.[37]

           [Emphasis supplied]

 The Court does not find such to be a justifiable ground to excuse

non-compliance. The suddenness of the situation cannot justify non-compliance with the requirements. The police officers were not prevented from preparing an inventory and taking photographs. In fact, Section 21(a) of the IRR of R.A. No. 9165 provides specifically that in case of warrantless seizures, the inventory and photographs shall be done at the nearest police station or at the nearest office of the apprehending officer/team. Whatever effect the suddenness of the situation may have had should have dissipated by the time they reached the police station, as the suspects had already been arrested and the items seized.  Moreover, it has been held that in case of warrantless seizures nothing prevents the apprehending officer from immediately conducting the physical inventory and photography of the items at their place of seizure, as it is more in keeping with the law’s intent to preserve their integrity and evidentiary value.[38]

                   This Court has repeatedly reversed conviction in drug cases for failure to comply with Section 21 of R.A. No. 9165, resulting in the failure to properly preserve the integrity and evidentiary value of the seized items. Some cases are People v. Garcia,[39] People v. Dela Cruz,[40] People v. Dela Cruz,[41] People v. Santos, Jr.,[42] People v. Nazareno,[43] People v. Orteza,[44] Zarraga v. People,[45] and People v. Kimura.[46]

 Second, the subject items were not properly marked. The case

of People v. Sanchez is instructive on the requirement of marking, to wit:

 What Section 21 of R.A. No. 9165 and its

implementing rule do not expressly specify is the matter of "marking" of the seized items in warrantless seizures to ensure that the evidence seized upon apprehension is the same evidence subjected to inventory and photography when these activities are undertaken at the police station rather than at the place of arrest. Consistency with the

"chain of custody" rule requires that the "marking" of the seized items - to truly ensure that they are the same items that enter the chain and are eventually the ones offered in evidence - should be done (1) in the presence of the apprehended violator (2) immediately upon confiscation. This step initiates the process of protecting innocent persons from dubious and concocted searches, and of protecting as well the apprehending officers from harassment suits based on planting of evidence under Section 29 and on allegations of robbery or theft.

 For greater specificity, "marking" means the placing

by the apprehending officer or the poseur-buyer of his/her initials and signature on the item/s seized. x x x Thereafter, the seized items shall be placed in an envelope or an evidence bag unless the type and quantity of the seized items require a different type of handling and/or container. The evidence bag or container shall accordingly be signed by the handling officer and turned over to the next officer in the chain of custody.[47] [Emphasis in the original]

 Nowhere in the testimony of PO1 Azardon or in his Joint

Affidavit with PO1 Dela Cruz does it appear that the subject items were at all marked. It was only in the letter-request for laboratory examination that the subject items were indicated to have been marked with “DC&A-1,” “DC&A-2” and “DC&A-3.”  There is no showing, however, as to who made those markings and when they were made.  Moreover, those purported markings were never mentioned when the subject items were identified by the prosecution witnesses when they took the stand.

 The markings appear to pertain to a group of items, that

is, empty plastic sachets, rolled and cut aluminium foil, and cut aluminium foil, but do not specifically pertain to any individual item in each group. Furthermore, it was only in the Chemistry Report[48] that the precise number of each type of item was indicated and enumerated.  The Court notes that in all documents prior to said report, the subject items were never accurately quantified but only described as “pieces,”[49] “several pcs,”[50] and “shabu paraphernallas.”[51]  Strangely, the Chemistry Report indicates that all the subject items had “no markings,” although each item was

reported to have been marked by P/Insp. Maranion in the course of processing the subject items during laboratory examination and testing.[52] Doubt, therefore, arises as to the identity of the subject items.  It cannot be determined with moral certainty that the subject items seized from the accused were the same ones subjected to the laboratory examination and presented in court.

 This Court has acquitted the accused for the failure and

irregularity in the marking of seized items in dangerous drugs cases, such as Zarraga v. People,[53] People v. Kimura,[54] and People v. Laxa.[55]

           Third, the Confiscation Receipt relied upon by the prosecution and the courts below gives rise to more uncertainty. Instead of being prepared on the day of the seizure of the items, it was prepared only three days after.  More important, the receipt did not even indicate exactly what items were confiscated and their quantity. These are basic information that a confiscation receipt should provide. The only information contained in the Confiscation Receipt was the fact of arrest of the accused and the general description of the subject items as “the sachet of suspected Shabu paraphernallas were brought to the PNP Crime Laboratory.” The receipt is made even more dubious by PO1 Azardon’s admission in his testimony[56] that he did not personally prepare the Confiscation Receipt and he did not know exactly who did so.           Fourth, according to the Certification[57] issued by the Dagupan Police Station, the subject items were indorsed by PO1 Dela Cruz to Duty Investigator SPO1 Urbano for proper disposition.  These were later turned over by SPO3 Esteban to P/Insp. Maranion. There is, however, no showing of how and when the subject items were transferred from SPO1 Urbano to SPO3 Esteban.           Fifth, P/Insp. Maranion appears to be the last person in the chain of custody. No witness testified on how the subject items were kept after they were tested prior to their presentation in court.  This Court has highlighted similar shortcomings in People v.  Cervantes,[58] People v. Garcia,[59] People v. Sanchez,[60] and Malillin v. People.[61]

 

More irregularities further darken the cloud as to the guilt of the accused.  Contrary to PO1 Azardon’s testimony[62] that they were tipped off by a concerned citizen while at the police station, the Letter[63] to the Executive Director of the DDB states that the apprehending officers were tipped off “while conducting monitoring/surveillance.” Said letter also indicates, as does the Confiscation Receipt, that the arrest and seizure occurred on September 4, 2006, and not September 2, 2006, as alleged in the Information.  It was also mentioned in the aforementioned Certification of the Dagupan Police and Joint Affidavit of the police officers that a glass tube suspected to contain shabu residue was also confiscated from the accused. Interestingly, no glass tube was submitted for laboratory examination. 

In sum, numerous lapses and irregularities in the chain of custody belie the prosecution’s position that the integrity and evidentiary value of the subject items were properly preserved. The two documents specifically relied on by the CA, the Confiscation Receipt and the letter-request for laboratory examination, have been shown to be grossly insufficient in proving the identity of the corpus delicti. The corpus delicti in dangerous drugs cases constitutes the drug itself. This means that proof beyond reasonable doubt of the identity of the prohibited drug is essential before the accused can be found guilty.[64]

 Regarding the lack of prior coordination with the PDEA

provided in Section 86 of R.A. No. 9165, in People v. Sta. Maria,[65] this Court held that said section was silent as to the consequences of such failure, and said silence could not be interpreted as a legislative intent to make an arrest without the participation of PDEA illegal, nor evidence obtained pursuant to such an arrest inadmissible. Section 86 is explicit only in saying that the PDEA shall be the “lead agency” in the investigation and prosecution of drug-related cases. Therefore, other law enforcement bodies still possess authority to perform similar functions as the PDEA as long as illegal drugs cases will eventually be transferred to the latter.

 Let it be stressed that non-compliance with Section 21 of R.A.

No. 9165 does not affect the admissibility of the evidence but only its

weight.[66] Thus, had the subject items in this case been admissible, their evidentiary merit and probative value would be insufficient to warrant conviction.

 It may be true that where no ill motive can be attributed to the

police officers, the presumption of regularity in the performance of official duty should prevail.  However, such presumption obtains only when there is no deviation from the regular performance of duty.[67]  Where the official act in question is irregular on its face, the presumption of regularity cannot stand.

   

In this case, the official acts of the law enforcers were clearly shown and proven to be irregular. When challenged by the evidence of a flawed chain of custody, the presumption of regularity cannot prevail over the presumption of innocence of the accused.[68] 

 This Court once again takes note of the growing number of

acquittals for dangerous drugs cases due to the failure of law enforcers to observe the proper arrest, search and seizure procedure under the law.[69]Some bona fide arrests and seizures in dangerous drugs cases result in the acquittal of the accused because drug enforcement operatives compromise the integrity and evidentiary worth of the seized items. It behooves this Court to remind law enforcement agencies to exert greater effort to apply the rules and procedures governing the custody, control, and handling of seized drugs.

 It is recognized that strict compliance with the legal

prescriptions of R.A. No. 9165 may not always be possible. Thus, as earlier stated, non-compliance therewith is not necessarily fatal. However, the lapses in procedure must be recognized, addressed and explained in terms of their justifiable grounds, and the integrity and evidentiary value of the evidence seized must be shown to have been preserved.[70]

   

   

 On a final note, this Court takes the opportunity to be instructive

on Sec. 11[71] (Possession of Dangerous Drugs) and Sec. 15[72] (Use of Dangerous Drugs) of R.A. No. 9165, with regard to the charges that are filed by law enforcers. This Court notes the practice of law enforcers of filing charges under Sec. 11 in cases where the presence of dangerous drugs as basis for possession is only and solely in the form of residue, being subsumed under the last paragraph of Sec. 11.  Although not incorrect, it would be more in keeping with the intent of the law to file charges under Sec. 15 instead in order to rehabilitate first time offenders of drug use, provided that there is a positive confirmatory test result as required under Sec. 15. The minimum penalty under the last paragraph of Sec. 11 for the possession of residue is imprisonment of twelve years and one day, while the penalty under Sec. 15 for first time offenders of drug use is a minimum of six months rehabilitation in a government center. To file charges under Sec. 11 on the basis of residue alone would frustrate the objective of the law to rehabilitate drug users and provide them with an opportunity to recover for a second chance at life.

 In the case at bench, the presence of dangerous drugs was only

in the form of residue on the drug paraphernalia, and the accused were found positive for use of dangerous drugs.  Granting that the arrest was legal, the evidence obtained admissible, and the chain of custody intact, the law enforcers should have filed charges under Sec. 15, R.A. No. 9165 or for use of dangerous drugs and, if there was no residue at all, they should have been charged under Sec. 14[73] (Possession of Equipment, Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs During Parties, Social Gatherings or Meetings). Sec. 14 provides that the maximum penalty under Sec. 12[74] (Possession of Possession of Equipment, Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs) shall be imposed on any person who shall possess any equipment, instrument, apparatus and other paraphernalia for dangerous drugs. Under Sec. 12, the maximum penalty is imprisonment of four years and a fine of P50,000.00.  In fact, under the same section, the possession of such equipment, apparatus or other paraphernalia is prima facie evidence

that the possessor has used a dangerous drug and shall be presumed to have violated Sec. 15.

 In order to effectively fulfill the intent of the law to rehabilitate

drug users, this Court thus calls on law enforcers and prosecutors in dangerous drugs cases to exercise proper discretion in filing charges when the presence of dangerous drugs is only and solely in the form of residue and the confirmatory test required under Sec. 15 is positive for use of dangerous drugs. In such cases, to afford the accused a chance to be rehabilitated, the filing of charges for or involving possession of dangerous drugs should only be done when another separate quantity of dangerous drugs, other than mere residue, is found in the possession of the accused as provided for in Sec. 15.

           WHEREFORE, the August 7, 2009 Decision of the Court of Appeals in CA-G.R. HC-NO. 03269 is REVERSED and SET ASIDE and another judgment entered ACQUITTING the accused and ordering theirimmediate release from detention, unless they are confined for any other lawful cause.

  Let a copy of this decision be furnished the Director of the

Bureau of Corrections, Muntinlupa City, for immediate implementation. The Director of the Bureau of Corrections is directed to report to this Court within five days from receipt of this decision the action he has taken.  Copies shall also be furnished the Director-General, Philippine National Police, and the Director-General, Philippine Drugs Enforcement Agency, for their information and guidance.

 The Regional Trial Court, Branch 41, Dagupan City, is directed

to turn over the seized items to the Dangerous Drugs Board for destruction in accordance with law.

           SO ORDERED. PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ZENAIDA

BOLASA Y NAKOBOAN and ROBERTO DELOS REYES, accused-appellants.

D E C I S I O N

BELLOSILLO, J.:

An anonymous caller tipped off PO3 Dante Salonga and PO3 Albert Carizon in the early evening of 11 September 1995 that a man and a woman were repacking prohibited drugs at a certain house in Sta. Brigida St., Karuhatan, Valenzuela, Metro Manila. PO3 Salonga and PO3 Carizon together with SPO1 Fernando Arenas immediately proceeded to the house of the suspects and parked their car some three hundred (300) meters away.  They walked towards their quarry's lair accompanied this time by their unnamed informer.  When they reached the house they "peeped (inside) through a small window and x x x saw one man and a woman repacking suspected marijuana."[1] They entered the house and introduced themselves as police officers to the occupants and thereupon confiscated the tea bags and some drug paraphernalia.  They arrested the two (2) who turned out to be the accused Zenaida Bolasa y Nakoboan and Roberto delos Reyes.  Subsequent examination of the tea bags by NBI Forensic Chemist Rubie Calalo confirmed the suspicion that the tea bags contained marijuana.

Zenaida Bolasa and Roberto delos Reyes were thus charged with violation of Sec. 8, Art. II, of RA 6425 otherwise known as The Dangerous Drugs Act of 1972.  Both however denied on the witness stand ownership over the confiscated tea bags and drug implements.

According to Roberto delos Reyes, he and his wife were merely tenants in the house of Zenaida Bolasa and at the time he was arrested he had just arrived from work.  Upon learning that Zenaida was repacking marijuana inside their room, he immediately ordered her to leave.  Unfortunately however it was at that precise moment that police authorities entered and announced their presence.  He and Zenaida were then brought to the Valenzuela Police Station for questioning and subsequently detained.

On the part of Zenaida Bolasa, she narrated that at 7:30 in the evening of 11 September 1995 she was on her way to 9th Avenue, Caloocan City, where she was working as a waitress.  As she was about to leave the house she met a certain "Rico" and conversed with him for some time.  She denied knowing PO3 Carizon and the fact that the latter saw her repacking marijuana inside her house.

The trial court upon finding the version of the prosecution to be more plausible convicted both accused Zenaida Bolasa and Roberto delos Reyes of the crime charged and sentenced each of them not only to reclusion perpetua but also to pay a fine ofP500,000.00.[2]

Both accused appealed, although separately, each one represented by a separate counsel.

Maintaining his innocence in this appeal, accused-appellant Roberto delos Reyes insists he had just arrived from work and had, in fact, just entered his room when he was arrested.  Assuming he was indeed repacking marijuana when the police officers arrived, he claims it would have been inconceivable for them to know what he was doing inside his room considering the height of his window.  Significantly, the police officers had to lean first on the window in order to observe the activities inside the room.

Accused-appellant Zenaida Bolasa meanwhile asserts that the search in her residence was likewise illegal as her arrest preceding it was illegal.  Consequently, the marijuana seized from her could not be properly used as evidence against her.  She insists that the trial court should not have given credence to the testimony of PO3 Albert Carizon as the same was hearsay.  According to her and her co-accused delos Reyes, PO3 Carizon was not among the arresting officers.  As such, PO3 Carizon had no personal knowledge regarding the conduct of the arrest and search thus making his testimony hearsay.  Since the prosecution did not present the two (2) arresting officers the version of the prosecution cannot stand on its own.

Bolasa likewise impugns the identity of the items confiscated from her person vis-a-vis those which were submitted for laboratory examination and charges that the failure of the prosecution to satisfactorily establish the chain of custody over the specimen is damaging to its case.

We sustain the appeal.  This case clearly illustrates how constitutional guarantees against illegal arrests and seizures can be violated by overzealous police officers in the arrest of suspected drug offenders.  Thus, after a meticulous evaluation of the evidence at hand, this Court finds itself with no other recourse but to strike down the process adopted by the prosecution and acquit accused-appellants for insufficiency of evidence and reasonable doubt.

Section 2, Art. III, of the 1987 Constitution provides -

The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall 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.

The State cannot in a cavalier fashion intrude into the persons of its citizens as well as into their houses, papers and effects.  The constitutional provision sheathes the private individual with an impenetrable armor against unreasonable searches and seizures. It protects the privacy and sanctity of the person himself against unlawful arrests and other forms of restraint,[3] and prevents him from being irreversibly "cut off from that domestic security which renders the lives of the most unhappy in some measure agreeable."[4]

For sure, this constitutional guarantee is not a blanket prohibition against all searches and seizures as it obviously operates only against searches and seizures that are "unreasonable."[5] Thus, arrests and seizures in the following instances are not deemed “unreasonable” and are thus allowed even in the absence of a warrant -

1.  Warrantless search incidental to a lawful arrest (Sec. 12, Rule 126 of the Rules of Court and prevailing jurisprudence);

2.  Search of evidence in “plain view.” The elements are:  (a) a prior valid intrusion based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties; (b) the evidence was inadvertently discovered by the police who have the right to be where they are; (c) the evidence must be immediately apparent; and, (d) "plain view" justified mere seizure of evidence without further search.

3.  Search of a moving vehicle.  Highly regulated by the government, the vehicle’s inherent mobility reduces expectation of privacy especially when its transit in public thoroughfares furnishes a highly reasonable suspicion amounting to probable cause that the occupant committed a criminal activity;

4.  Consented warrantless search;

5.  Customs search;

6.  Stop and Frisk; and

7.  Exigent and emergency circumstances.[6]

An arrest is lawful even in the absence of a warrant:  (a) when the person to be arrested has committed, is actually committing, or is about to commit an offense in his presence; (b) when an offense has in fact been committed and he has reasonable ground to believe that the person to be arrested has committed it; and, (c) when the person to be arrested is a prisoner who has escaped from a penal establishment or

place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.[7] A person charged with an offense may be searched for dangerous weapons or anything which may be used as proof of the commission of the offense.[8]

The manner by which accused-appellants were apprehended does not fall under any of the above-enumerated categories.  Perforce, their arrest is illegal.  First, the arresting officers had no personal knowledge that at the time of their arrest, accused-appellants had just committed, were committing, or were about to commit a crime.  Second, the arresting officers had no personal knowledge that a crime was committed nor did they have any reasonable ground to believe that accused-appellants committed it. Third, accused-appellants were not prisoners who have escaped from a penal establishment.

Neither can it be said that the objects were seized in plain view.  First, there was no valid intrusion.  As already discussed, accused-appellants were illegally arrested.  Second, the evidence, i.e., the tea bags later on found to contain marijuana, was not inadvertently discovered.  The police officers intentionally peeped first through the window before they saw and ascertained the activities of accused-appellants inside the room.  In like manner, the search cannot be categorized as a search of a moving vehicle, a consented warrantless search, a customs search, or a stop and frisk; it cannot even fall under exigent and emergency circumstances, for the evidence at hand is bereft of any such showing.

On the contrary, it indicates that the apprehending officers should have conducted first a surveillance considering that the identities and address of the suspected culprits were already ascertained.  After conducting the surveillance and determining the existence of probable cause for arresting accused-appellants, they should have secured a search warrant prior to effecting a valid arrest and seizure.  The arrest being illegal ab initio, the accompanying search was likewise illegal.  Every evidence thus obtained during the illegal search cannot be used against accused-appellants;[9] hence, their acquittal must follow in faithful obeisance to the fundamental law.

WHEREFORE, the 12 July 1996 Decision of the Regional Trial Court finding accused-appellants Zenaida Bolasa y Nakoboan and Roberto delos Reyes guilty of violating Sec. 8, Art. II, of RA 6425 is REVERSED and SET ASIDE for insufficiency of evidence and on reasonable doubt; consequently, both are ACQUITTED and ordered RELEASED immediately from confinement unless held for another lawful cause.

Their Jailers - the Correctional Institution for Women, Mandaluyong City, for Zenaida Bolasa y Nakoboan, and the Bureau of Corrections, Muntinlupa City, for Roberto delos Reyes - are DIRECTED to implement this Decision immediately and to report to this Court within five (5) days from receipt hereof their compliance herewith WITHOUT DELAY.

SO ORDERED.

G.R. No. 154491             November 14, 2008

COCA-COLA BOTTLERS, PHILS., INC. (CCBPI), Naga Plant, petitioner, vs.QUINTIN J. GOMEZ, a.k.a. "KIT" GOMEZ and DANILO E. GALICIA, a.k.a. "DANNY GALICIA",respondents.

D E C I S I O N

BRION, J.:

Is the hoarding of a competitor's product containers punishable as unfair competition under the Intellectual Property Code (IP Code, Republic Act No. 8293) that would entitle the aggrieved party to a search warrant against the hoarder? This is the issue we grapple with in this petition for review oncertiorari involving two rival multinational softdrink giants; petitioner Coca-Cola Bottlers, Phils., Inc. (Coca-Cola) accuses Pepsi Cola Products Phils., Inc. (Pepsi), represented by the respondents, of hoarding empty Coke bottles in bad faith to discredit its business and to sabotage its operation in Bicolandia.

BACKGROUND

The facts, as culled from the records, are summarized below.

On July 2, 2001, Coca-Cola applied for a search warrant against Pepsi for hoarding Coke empty bottles in Pepsi's yard in Concepcion Grande, Naga City, an act allegedly penalized as unfair competition under the IP Code. Coca-Cola claimed that the bottles must be confiscated to preclude their illegal use, destruction or concealment by the respondents.1 In support of the application, Coca-Cola submitted the sworn statements of three witnesses: Naga plant representative Arnel John Ponce said he was informed that one of their plant security guards had gained access into the Pepsi

compound and had seen empty Coke bottles; acting plant security officer Ylano A. Regaspi said he investigated reports that Pepsi was hoarding large quantities of Coke bottles by requesting their security guard to enter the Pepsi plant and he was informed by the security guard that Pepsi hoarded several Coke bottles; security guard Edwin Lirio stated that he entered Pepsi's yard on July 2, 2001 at 4 p.m. and saw empty Coke bottles inside Pepsi shells or cases.2

Municipal Trial Court (MTC) Executive Judge Julian C. Ocampo of Naga City, after taking the joint deposition of the witnesses, issued Search Warrant No. 2001-013 to seize 2,500 Litro and 3,000 eight and 12 ounces empty Coke bottles at Pepsi's Naga yard for violation of Section 168.3 (c) of the IP Code.4 The local police seized and brought to the MTC's custody 2,464 Litro and 4,036 eight and 12 ounces empty Coke bottles, 205 Pepsi shells for Litro, and 168 Pepsi shells for smaller (eight and 12 ounces) empty Coke bottles, and later filed with the Office of the City Prosecutor of Naga a complaint against two Pepsi officers for violation of Section 168.3 (c) in relation to Section 170 of the IP Code.5The named respondents, also the respondents in this petition, were Pepsi regional sales managerDanilo E. Galicia (Galicia) and its Naga general manager Quintin J. Gomez, Jr. (Gomez).

In their counter-affidavits, Galicia and Gomez claimed that the bottles came from various Pepsi retailers and wholesalers who included them in their return to make up for shortages of empty Pepsi bottles; they had no way of ascertaining beforehand the return of empty Coke bottles as they simply received what had been delivered; the presence of the bottles in their yard was not intentional nor deliberate; Ponce and Regaspi's statements are hearsay as they had no personal knowledge of the alleged crime; there is no mention in the IP Code of the crime of possession of empty bottles; and that the ambiguity of the law, which has a penal nature, must be construed strictly against the State and liberally in their favor. Pepsi security guards Eduardo E. Miral and Rene Acebuche executed a joint affidavit stating that per their logbook, Lirio did not visit or enter the plant premises in the afternoon of July 2, 2001.

The respondents also filed motions for the return of their shells and to quash the search warrant. They contended that no probable cause existed to justify the issuance of the search warrant; the facts charged do not constitute an offense; and their Naga plant was in urgent need of the shells.

Coca-Cola opposed the motions as the shells were part of the evidence of the crime, arguing that Pepsi used the shells in hoarding the

bottles. It insisted that the issuance of warrant was based on probable cause for unfair competition under the IP Code, and that the respondents violated R.A. 623, the law regulating the use of stamped or marked bottles, boxes, and other similar containers.

THE MTC RULINGS

On September 19, 2001, the MTC issued the first assailed order6 denying the twin motions. It explained there was an exhaustive examination of the applicant and its witnesses through searching questions and that the Pepsi shells are prima facie evidence that the bottles were placed there by the respondents.

In their motion for reconsideration, the respondents argued for the quashal of the warrant as the MTC did not conduct a probing and exhaustive examination; the applicant and its witnesses had no personal knowledge of facts surrounding the hoarding; the court failed to order the return of the "borrowed" shells; there was no crime involved; the warrant was issued based on hearsay evidence; and the seizure of the shells was illegal because they were not included in the warrant.

On November 14, 2001, the MTC denied the motion for reconsideration in the second assailed order,7explaining that the issue of whether there was unfair competition can only be resolved during trial.

The respondents responded by filing a petition for certiorari under Rule 65 of the Revised Rules of Court before the Regional Trial Court (RTC) of Naga City on the ground that the subject search warrant was issued without probable cause and that the empty shells were neither mentioned in the warrant nor the objects of the perceived crime.

THE RTC RULINGS

On May 8, 2002, the RTC voided the warrant for lack of probable cause and the non-commission of the crime of unfair competition, even as it implied that other laws may have been violated by the respondents. The RTC, though, found no grave abuse of discretion on the part of the issuing MTC judge.8Thus,

Accordingly, as prayed for, Search Warrant No. 2001-02 issued by the Honorable Judge Julian C. Ocampo III on July 2, 2001 is ANNULLED and SET ASIDE. The Orders issued by the Pairing Judge of Br. 1, MTCC of Naga City dated September 19, 2001 and November 14, 2001 are also declared VOID and SET ASIDE.

The City Prosecutor of Naga City and SPO1 Ernesto Paredes are directed to return to the Petitioner the properties seized by virtue of Search Warrant No. 2001-02. No costs.

SO ORDERED.9

In a motion for reconsideration, which the RTC denied on July 12, 2002, the petitioner stressed that the decision of the RTC was contradictory because it absolved Judge Ocampo of grave abuse of discretion in issuing the search warrant, but at the same time nullified the issued warrant. The MTC should have dismissed the petition when it found out that Judge Ocampo did not commit any grave abuse of discretion.

Bypassing the Court of Appeals, the petitioner asks us through this petition for review on certiorari under Rule 45 of the Rules of Court to reverse the decision of the RTC. Essentially, the petition raises questions against the RTC's nullification of the warrant when it found no grave abuse of discretion committed by the issuing judge.

THE PETITION and   THE PARTIES' POSITIONS

In its petition, the petitioner insists the RTC should have dismissed the respondents' petition for certiorari because it found no grave abuse of discretion by the MTC in issuing the search warrant. The petitioner further argues that the IP Code was enacted into law to remedy various forms of unfair competition accompanying globalization as well as to replace the inutile provision of unfair competition under Article 189 of the Revised Penal Code. Section 168.3(c) of the IP Code does not limit the scope of protection on the particular acts enumerated as it expands the meaning of unfair competition to include "other acts contrary to good faith of a nature calculated to discredit the goods, business or services of another." The inherent element of unfair competition is fraud or deceit, and that hoarding of large quantities of a competitor's empty bottles is necessarily characterized by bad faith. It claims that its Bicol bottling operation was prejudiced by the respondents' hoarding and destruction of its empty bottles.

The petitioner also argues that the quashal of the search warrant was improper because it complied with all the essential requisites of a valid warrant. The empty bottles were concealed in Pepsi shells to prevent discovery while they were systematically being destroyed to hamper the petitioner's bottling operation and to undermine the capability of its bottling operations in Bicol.

The respondents counter-argue that although Judge Ocampo conducted his own examination, he gravely erred and abused his discretion when he ignored the rule on the need of sufficient evidence to establish probable cause; satisfactory and convincing evidence is essential to hold them guilty of unfair competition; the hoarding of empty Coke bottles did not cause actual or probable deception and confusion on the part of the general public; the alleged criminal acts do not show conduct aimed at deceiving the public; there was no attempt to use the empty bottles or pass them off as the respondents' goods.

The respondents also argue that the IP Code does not criminalize bottle hoarding, as the acts penalized must always involve fraud and deceit. The hoarding does not make them liable for unfair competition as there was no deception or fraud on the end-users.

THE ISSUE

Based on the parties' positions, the basic issue submitted to us for resolution is whether the Naga MTC was correct in issuing Search Warrant No. 2001-01 for the seizure of the empty Coke bottles from Pepsi's yard for probable violation of Section 168.3 (c) of the IP Code. This basic issue involves two sub-issues, namely, the substantive issue of whether the application for search warrant effectively charged an offense, i.e., a violation of Section 168.3 (c) of the IP Code; and the procedural issue of whether the MTC observed the procedures required by the Rules of Court in the issuance of search warrants.

OUR RULING

We resolve to deny the petition for lack of merit.

We clarify at the outset that while we agree with the RTC decision, our agreement is more in the result than in the reasons that supported it. The decision is correct in nullifying the search warrant because it was issued on an invalid substantive basis - the acts imputed on the respondents do not violate Section 168.3 (c) of the IP Code. For this reason, we deny the present petition.

The issuance of a search warrant10 against a personal property11 is governed by Rule 126 of the Revised Rules of Court whose relevant sections state:

Section 4. Requisites for issuing search warrant. - A search warrant shall not issue except uponprobable 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 witnesses he may produce, and particularly describing the place to be searched and the things to be seized which may be anywhere in the Philippines.

Section 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.

Section 6. Issuance and form of search warrant. - If the judge is satisfied of the existence of facts upon which the application is based or that there is probable cause to believe that they exist, he shall issue the warrant, which must be substantially in the form prescribed by these Rules. [Emphasis supplied]

To paraphrase this rule, a search warrant may be issued only if there is probable cause in connection with a specific offense alleged in an application based on the personal knowledge of the applicant and his or her witnesses. This is the substantive requirement in the issuance of a search warrant. Procedurally, the determination of probable cause is a personal task of the judge before whom the application for search warrant is filed, as he has to examine under oath or affirmation the applicant and his or her witnesses in the form of "searching questions and answers" in writing and under oath. The warrant, if issued, must particularly describe the place to be searched and the things to be seized.

We paraphrase these requirements to stress that they have substantive and procedural aspects. Apparently, the RTC recognized this dual nature of the requirements and, hence, treated them separately; it approved of the way the MTC handled the procedural aspects of the issuance of the search warrant but found its action on the substantive aspect wanting. It therefore resolved to nullify the warrant, without however expressly declaring that the MTC gravely abused its discretion when it issued the warrant applied for. The RTC's error, however, is in the form rather than the substance of the decision as the nullification of the issued warrant for the reason the RTC gave was equivalent to the declaration that grave abuse of discretion was committed. In fact, we so rule as the discussions below will show.

Jurisprudence teaches us that probable cause, as a condition for the issuance of a search warrant, is such reasons supported by facts and circumstances as will warrant a cautious man in the belief that his action and the means taken in prosecuting it are legally just and proper. Probable cause requires facts and circumstances that would lead a reasonably prudent man to believe that an offense has been committed and the objects sought in connection with that offense are in the place to be searched.12Implicit in this statement is the recognition that an underlying offense must, in the first place, exist. In other words, the acts alleged, taken together, must constitute an offense and that these acts are imputable to an offender in relation with whom a search warrant is applied for.

In the context of the present case, the question is whether the act charged - alleged to be hoarding of empty Coke bottles - constitutes an offense under Section 168.3 (c) of the IP Code. Section 168 in its entirety states:

SECTION 168. Unfair Competition, Rights, Regulation and Remedies. -

168.1. A person who has identified in the mind of the public the goods he manufactures or deals in, his business or services from those of others, whether or not a registered mark is employed, has a property right in the goodwill of the said goods, business or services so identified, which will be protected in the same manner as other property rights.

168.2. Any person who shall employ deception or any other means contrary to good faith by which he shall pass off the goods manufactured by him or in which he deals, or his business, or services for those of the one having established such goodwill, or who shall commit any acts calculated to produce said result, shall be guilty of unfair competition, and shall be subject to an action therefor.

168.3. In particular, and without in any way limiting the scope of protection against unfair competition, the following shall be deemed guilty of unfair competition:

(a) Any person, who is selling his goods and gives them the general appearance of goods of another manufacturer or dealer, either as to the goods themselves or in the wrapping of the packages in which they are contained, or the devices or words thereon, or in any other feature of their appearance, which would be likely to influence

purchasers to believe that the goods offered are those of a manufacturer or dealer, other than the actual manufacturer or dealer, or who otherwise clothes the goods with such appearance as shall deceive the public and defraud another of his legitimate trade, or any subsequent vendor of such goods or any agent of any vendor engaged in selling such goods with a like purpose;

(b) Any person who by any artifice, or device, or who employs any other means calculated to induce the false belief that such person is offering the services of another who has identified such services in the mind of the public; or

(c) Any person who shall make any false statement in the course of trade or who shall commit any other act contrary to good faith of a nature calculated to discredit the goods, business or services of another.

168.4. The remedies provided by Sections 156, 157 and 161 shall apply mutatis mutandis. (Sec. 29,R.A. No. 166a)

The petitioner theorizes that the above section does not limit the scope of protection on the particular acts enumerated as it expands the meaning of unfair competition to include "other acts contrary to good faith of a nature calculated to discredit the goods, business or services of another." Allegedly, the respondents' hoarding of Coca Cola empty bottles is one such act.

We do not agree with the petitioner's expansive interpretation of Section 168.3 (c).

"Unfair competition," previously defined in Philippine jurisprudence in relation with R.A. No. 166 and Articles 188 and 189 of the Revised Penal Code, is now covered by Section 168 of the IP Code as this Code has expressly repealed R.A. No. 165 and R.A. No. 166, and Articles 188 and 189 of the Revised Penal Code.

Articles 168.1 and 168.2, as quoted above, provide the concept and general rule on the definition of unfair competition. The law does not thereby cover every unfair act committed in the course of business; it covers only acts characterized by "deception or any other means contrary to good faith" in the passing off of goods and services as those of another who has established goodwill in relation with these goods or services, or any other act calculated to produce the same result.

What unfair competition is, is further particularized under Section 168.3 when it provides specifics of what unfair competition is "without in any way limiting the scope of protection against unfair competition." Part of these particulars is provided under Section 168.3(c) which provides the general "catch-all" phrase that the petitioner cites. Under this phrase, a person shall be guilty of unfair competition "who shall commit any other act contrary to good faith of a nature calculated to discredit the goods, business or services of another."

From jurisprudence, unfair competition has been defined as the passing off (or palming off) or attempting to pass off upon the public the goods or business of one person as the goods or business of another with the end and probable effect of deceiving the public. It formulated the "true test" of unfair competition: whether the acts of defendant are such as are calculated to deceive the ordinary buyer making his purchases under the ordinary conditions which prevail in the particular trade to which the controversy relates.13 One of the essential requisites in an action to restrain unfair competition is proof of fraud; the intent to deceive must be shown before the right to recover can exist.14 The advent of the IP Code has not significantly changed these rulings as they are fully in accord with what Section 168 of the Code in its entirety provides. Deception, passing off and fraud upon the public are still the key elements that must be present for unfair competition to exist.

The act alleged to violate the petitioner's rights under Section 168.3 (c) is hoarding which we gather to be the collection of the petitioner's empty bottles so that they can be withdrawn from circulation and thus impede the circulation of the petitioner's bottled products. This, according to the petitioner, is an act contrary to good faith - a conclusion that, if true, is indeed an unfair act on the part of the respondents. The critical question, however, is not the intrinsic unfairness of the act of hoarding; what is critical for purposes of Section 168.3 (c) is to determine if the hoarding, as charged, "is of a nature calculated to discredit the goods, business or services" of the petitioner.

We hold that it is not. Hoarding as defined by the petitioner is not even an act within the contemplation of the IP Code.

The petitioner's cited basis is a provision of the IP Code, a set of rules that refer to a very specific subject - intellectual property. Aside from the IP Code's actual substantive contents (which relate specifically to patents, licensing, trademarks, trade names, service marks, copyrights, and the protection and infringement of the intellectual

properties that these protective measures embody), the coverage and intent of the Code is expressly reflected in its "Declaration of State Policy" which states:

Section 2. Declaration of State Policy. - The State recognizes that an effective intellectual and industrial property system is vital to the development of domestic and creative activity, facilitates transfer of technology, attracts foreign investments, and ensures market access for our products. It shall protect and secure the exclusive rights of scientists, inventors, artists and other gifted citizensto their intellectual property and creations, particularly when beneficial to the people, for such periods as provided in this Act.

The use of intellectual property bears a social function. To this end, the State shall promote the diffusion of knowledge and information for the promotion of national development and progress and the common good.

It is also the policy of the State to streamline administrative procedures of registering patents, trademarks and copyright, to liberalize the registration on the transfer of technology, and to enhance the enforcement of intellectual property rights in the Philippines. (n)

"Intellectual property rights" have furthermore been defined under Section 4 of the Code to consist of: a) Copyright and Related Rights; b) Trademarks and Service Marks; c) Geographic Indications; d) IndustrialDesigns; e) Patents; f) Layout-Designs (Topographies) of Integrated Circuits; and g)Protection of Undisclosed Information.

Given the IP Code's specific focus, a first test that should be made when a question arises on whether a matter is covered by the Code is to ask if it refers to an intellectual property as defined in the Code. If it does not, then coverage by the Code may be negated.

A second test, if a disputed matter does not expressly refer to an intellectual property right as defined above, is whether it falls under the general "unfair competition" concept and definition under Sections 168.1 and 168.2 of the Code. The question then is whether there is "deception" or any other similar act in "passing off" of goods or services to be those of another who enjoys established goodwill.

Separately from these tests is the application of the principles of statutory construction giving particular attention, not so much to the focus of the IP Code generally, but to the terms of Section 168 in

particular. Under the principle of "noscitur a sociis," when a particular word or phrase is ambiguous in itself or is equally susceptible of various meanings, its correct construction may be made clear and specific by considering the company of words in which it is found or with which it is associated.15

As basis for this interpretative analysis, we note that Section 168.1 speaks of a person who has earned goodwill with respect to his goods and services and who is entitled to protection under the Code, with or without a registered mark. Section 168.2, as previously discussed, refers to the general definition of unfair competition. Section 168.3, on the other hand, refers to the specific instances of unfair competition, with Section 168.1 referring to the sale of goods given the appearance of the goods of another; Section 168.2, to the inducement of belief that his or her goods or services are that of another who has earned goodwill; while the disputed Section 168.3 being a "catch all" clause whose coverage the parties now dispute.

Under all the above approaches, we conclude that the "hoarding" - as defined and charged by the petitioner - does not fall within the coverage of the IP Code and of Section 168 in particular. It does not relate to any patent, trademark, trade name or service mark that the respondents have invaded, intruded into or used without proper authority from the petitioner. Nor are the respondents alleged to be fraudulently "passing off" their products or services as those of the petitioner. The respondents are not also alleged to be undertaking any representation or misrepresentation that would confuse or tend to confuse the goods of the petitioner with those of the respondents, or vice versa. What in fact the petitioner alleges is an act foreign to the Code, to the concepts it embodies and to the acts it regulates; as alleged, hoarding inflicts unfairness by seeking to limit the opposition's sales by depriving it of the bottles it can use for these sales.

In this light, hoarding for purposes of destruction is closer to what another law - R.A. No. 623 - covers, to wit:

SECTION 1. Persons engaged or licensed to engage in the manufacture, bottling or selling of soda water, mineral or aerated waters, cider, milk, cream, or other lawful beverages in bottles, boxes, casks, kegs, or barrels, and other similar containers, with their names or the names of their principals or products, or other marks of ownership stamped or marked thereon, may register with the Philippine Patent Office a description of the names or are used by them, under the same

conditions, rules, and regulations, made applicable by law or regulation to the issuance of trademarks.

SECTION 2. It shall be unlawful for any person, without the written consent of the manufacturer, bottler or seller who has successfully registered the marks of ownership in accordance with the provisions of the next preceding section, to fill such bottles, boxes, kegs, barrels, or other similar containers so marked or stamped, for the purpose of sale, or to sell, dispose of, buy, or traffic in, or wantonly destroy the same, whether filled or not, or to use the same for drinking vessels or glasses or for any other purpose than that registered by the manufacturer, bottler or seller. Any violation of this section shall be punished by a fine or not more than one hundred pesos or imprisonment of not more than thirty days or both.

As its coverage is defined under Section 1, the Act appears to be a measure that may overlap or be affected by the provisions of Part II of the IP Code on "The Law on Trademarks, Service Marks and Trade Names." What is certain is that the IP Code has not expressly repealed this Act. The Act appears, too, to have specific reference to a special type of registrants - the manufacturers, bottlers or sellers of soda water, mineral or aerated waters, cider, milk, cream, or other lawful beverages in bottles, boxes, casks, kegs, or barrels, and other similar containers - who are given special protection with respect to the containers they use. In this sense, it is in fact a law of specific coverage and application, compared with the general terms and application of the IP Code. Thus, under its Section 2, it speaks specifically of unlawful use of containers and even of the unlawfulness of their wanton destruction - a matter that escapes the IP Code's generalities unless linked with the concepts of "deception" and "passing off" as discussed above.

Unfortunately, the Act is not the law in issue in the present case and one that the parties did not consider at all in the search warrant application. The petitioner in fact could not have cited it in its search warrant application since the "one specific offense" that the law allows and which the petitioner used was Section 168.3 (c). If it serves any purpose at all in our discussions, it is to show that the underlying factual situation of the present case is in fact covered by another law, not by the IP Code that the petitioner cites. Viewed in this light, the lack of probable cause to support the disputed search warrant at once becomes apparent.

Where, as in this case, the imputed acts do not violate the cited offense, the ruling of this Court penned by Mr. Justice Bellosillo is particularly instructive:

In the issuance of search warrants, the Rules of Court requires a finding of probable cause in connection with one specific offense to be determined personally by the judge after examination of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the things to be seized. Hence, since there is no crime to speak of, the search warrant does not even begin to fulfill these stringent requirements and is therefore defective on its face. The nullity of the warrant renders moot and academic the other issues raised in petitioners' Motion to Quash and Motion for Reconsideration. Since the assailed search warrant is null and void, all property seized by virtue thereof should be returned to petitioners in accordance with established jurisprudence.16

Based on the foregoing, we conclude that the RTC correctly ruled that the petitioner's search warrant should properly be quashed for the petitioner's failure to show that the acts imputed to the respondents do not violate the cited offense. There could not have been any probable cause to support the issuance of a search warrant because no crime in the first place was effectively charged. This conclusion renders unnecessary any further discussion on whether the search warrant application properly alleged that the imputed act of holding Coke empties was in fact a "hoarding" in bad faith aimed to prejudice the petitioner's operations, or whether the MTC duly complied with the procedural requirements for the issuance of a search warrant under Rule 126 of the Rules of Court.

WHEREFORE, we hereby DENY the petition for lack of merit. Accordingly, we confirm that Search Warrant No. 2001-01, issued by the Municipal Trial Court, Branch 1, Naga City, is NULL and VOID. Costs against the petitioner.

SO ORDERED.

G.R. No. 180109               July 26, 2010

PEOPLE OF THE PHILIPPINES, Petitioner, vs.JOSEPH "JOJO" V. GREY, FRANCIS B. GREY, and COURT OF APPEALS-CEBU CITY, EIGHTEENTH DIVISION, Respondents.

D E C I S I O N

NACHURA, J.:

Before this Court is a Petition for Review under Rule 45 of the Rules of Court filed by the People of the Philippines, through the Office of the Solicitor General (OSG), seeking the nullification of the Court of Appeals (CA) (Cebu City-Eighteenth Division) Resolution1 dated March 13, 2007, Decision2 dated May 8, 2007, and Resolution3 dated October 8, 2007, in CA-G.R. SP No. 02558, entitled "Mayor Joseph ‘Jojo’ V. Grey and Francis B. Grey v. Hon. Roberto A. Navidad, Presiding Judge of the Regional Trial Court of Calbayog City, Branch 32, and the People of the Philippines."

On December 11, 2006, an Information for Murder was filed against respondent Joseph Grey, former Mayor of San Jorge, Samar; his son, respondent Francis Grey; and two others for the death of Rolando Diocton, an employee of the San Jorge municipal government, before the Regional Trial Court (RTC), Branch 41, Gandara, Samar. The Information was accompanied by other supporting documents and a motion for the issuance of a warrant of arrest.4

Respondents filed a petition for review with the Secretary of Justice. Meanwhile, RTC Branch 41 Presiding Judge Rosario Bandal denied the motion for the issuance of a warrant of arrest. Judge Bandal found the prosecution’s evidence to be insufficient to link respondents to the crime charged. She directed the prosecution to present, within five days, additional evidence that would show that accused were the assailants or that they conspired, confederated, or helped in the commission of the crime charged.5

The prosecution then filed an Omnibus Motion for Reconsideration and a motion for the inhibition of Judge Bandal.6 The judge inhibited herself but denied the motion for reconsideration.7

Thereafter, the provincial prosecutor filed a petition for change of venue before this Court, attaching thereto a letter from the victim’s wife expressing fear for her life and that of the other witnesses.8

The Secretary of Justice, in a Resolution dated January 4, 2007, dismissed the petition for review and respondents’ counter charge of perjury. He found no error to warrant the modification or reversal of the prosecutor’s resolution. The Secretary of Justice ruled that the evidence adduced against respondents was sufficient to establish probable cause for the offense charged. Respondents’ motion for reconsideration was denied on January 30, 2007.9

Subsequently, the prosecution withdrew their motion for change of venue before this Court, citing financial difficulties in bringing witnesses to Manila.10 Respondents opposed the motion and prayed that all proceedings be suspended until after the May 14, 2007 elections.11

However, on February 19, 2007, respondents filed their own petition for change of venue before this Court, alleging that the presiding judge who took over the case, Judge Roberto Navidad, was a pawn in the political persecution being staged against them.12 In its August 22, 2007 Resolution, this Court denied the petition for lack of merit and directed Judge Navidad to hear the case with dispatch.13

Accordingly, Judge Navidad proceeded with the preliminary inquiry on the existence of probable cause, and, in an Order dated February 20, 2007, ruled that the finding of probable cause was supported by the evidence on record. He then issued warrants of arrest against respondents and all but one of their co-accused.14

Respondents filed a Petition15 for Certiorari and Prohibition before the CA, alleging that Judge Navidad gravely abused his discretion in issuing the February 20, 2007 Order, and seeking a temporary restraining order (TRO) and/or a writ of preliminary injunction. They alleged that the filing of the murder charges against them on the basis of perjured statements coming from their political opponents’ supporters "smacks of political harassment at its foulest form."16 Respondents pointed out that the criminal complaint was filed barely two months after Joseph Grey declared his intentions to challenge incumbent Congressman Reynaldo S. Uy, a former ally, in the May 2007 congressional elections. Likewise, respondents claimed that one of the witnesses, Urien Moloboco, who executed an affidavit before the Provincial Prosecutor, was the subject of an Alias Warrant of Arrest for murder issued by the RTC of Gandara, Samar on June 26, 2006, and, hence, was a fugitive from the law at the time of the filing of the criminal complaint against respondents. Respondents maintain that the fact that Moloboco was not arrested when he executed his affidavit before the prosecutor, spoke of the power and clout of the witness’ protectors.17

The CA Eighteenth Division issued a TRO on March 13, 2007.18 After oral arguments, the CA issued a Decision19dated May 8, 2007, making the TRO permanent, ordering that warrants of arrest be set aside, and dismissing the criminal case without prejudice.

The CA held that Judge Navidad failed to abide by the constitutional mandate for him to personally determine the existence of probable

cause.20 According to the CA, nowhere in the assailed Order did Judge Navidad state his personal assessment of the evidence before him and the personal justification for his finding of probable cause. It found that the judge extensively quoted from the Joint Resolution of the Provincial Prosecutor and the Resolution of the Secretary of Justice, and then adopted these to conclude that there was sufficient evidence to support the finding of probable cause. The CA held that the Constitution commands the judge to personally determine the existence of probable cause before issuing warrants of arrest.21

Moreover, the CA also ruled that the Information was not supported by the allegations in the submitted affidavits.22It pointed out that the Information charged respondents as principals by direct participation, but the complaint-affidavit and supporting affidavits uniformly alleged that respondents were not at the scene of the shooting.23 The CA further found that the allegations in the complaint-affidavit and supporting affidavits were insufficient to establish probable cause. It said that there was nothing in the affidavits to show acts that would support the prosecution’s theory that respondents were also charged as principals by conspiracy.24

Petitioner’s motion for reconsideration of the CA’s May 8, 2007 Decision was denied in a Resolution dated October 8, 2007.25 Hence, this petition for review.

Petitioner argues that respondents committed forum shopping, which would warrant the outright dismissal of their petition below. Petitioner alleges that respondents’ petition for change of venue before this Court and their petition for prohibition before the CA actually involve the same subject matter, parties, and issues – that of enjoining Judge Navidad from proceeding with the trial of the criminal case against them.26 Moreover, these two proceedings have resulted in conflicting decisions, with this Court resolving to proceed with the case and with the CA enjoining the same.27

Petitioner also argues against the CA’s ruling that Judge Navidad failed to personally determine the existence of probable cause. It said that although the judge adopted the findings of the prosecutors as to the sufficiency of evidence constituting probable cause, the language of the Order clearly reflects that the judge himself personally examined the records and found that there was probable cause for the issuance of warrants of arrest.28Moreover, the judge was correct in finding probable cause based on the sworn statements of the witnesses submitted to the court.29 Petitioner avers that the CA disregarded the fact that the Information alleged conspiracy.30 In any case, petitioner asserts that a perceived defect in the Information is

not jurisdictional as the same may be amended anytime before arraignment or with leave of court after arraignment.31

Petitioner also claims that respondents had not shown any clear and unmistakable right to the relief they sought. It said that there are more than enough plain, speedy, and adequate remedies available to respondents. Their constitutional rights are amply protected in the enforcement of the warrants of arrest. They can likewise apply for bail or move to quash the allegedly defective Information.32

Petitioner also argues that this Court has laid down the rule that criminal prosecution cannot be enjoined, and any exception to this rule must be convincingly established.33 On the other hand, the comparative injury to the People in permanently enjoining a criminal case is beyond any of respondents’ speculative claim of injury.

Thus, petitioner is praying that the CA’s May 8, 2007 Decision and October 8, 2007 Resolution be reversed and set aside, and the writ of injunction be dissolved.34

In their Comment, respondents assert that the trial court issued its February 20, 2007 Order in gross violation of the Constitution and prevailing jurisprudence on the matter.35 Respondents claim that the trial court’s violation is evident in the "indecent haste" with which it issued the Order and Warrants of Arrest, and in its own admission in the Order itself.36 Respondents also maintain that the trial court acted whimsically, capriciously, and with grave abuse of discretion when it concluded that there was probable cause to issue warrants of arrest against respondents.37 Respondents likewise assert that the trial court committed grave abuse of discretion when it reversed the finding of Judge Bandal, who first heard the case.38

The petition is impressed with merit.

Initially, we decide the issue of forum shopping raised by petitioner.

Petitioner maintains that respondents committed forum shopping when it filed a petition for change of venue before this Court and a petition for prohibition before the CA.

Forum shopping is an act of a party, against whom an adverse judgment or order has been rendered in one forum, of seeking and possibly getting a favorable opinion in another forum, other than by appeal or special civil action for certiorari. It may also involve the institution of two or more actions or proceedings grounded on the

same cause on the supposition that one or the other court would make a favorable disposition.39

Forum shopping exists where the elements of litis pendentia are present, and where a final judgment in one case will amount to res judicata in the other. The elements of forum shopping are: (a) identity of parties, or at least such parties as would represent the same interest in both actions; (b) identity of rights asserted and relief prayed for, the relief being founded on the same facts; and (c) identity of the two preceding particulars such that any judgment rendered in the other action will, regardless of which party is successful, amount to res judicata in the action under consideration.40

The elements of res judicita are: (a) the former judgment must be final; (b) the court which rendered judgment had jurisdiction over the parties and the subject matter; (c) it must be a judgment on the merits; and (d) there must be, between the first and second actions, identity of parties, subject matter, and cause of action.41

A reexamination of the two actions in this case, in light of the foregoing jurisprudence, is in order.

In the petition for change of venue filed on February 19, 2007, respondents prayed for the transfer of the criminal case to any court in Metro Manila,42 alleging that the prosecution was politically motivated and designed to hamper the plan of respondent Joseph Grey to run for a congressional seat in the May 2007 elections.43 They contended that "it would be extremely pernicious to the interest of justice if trial of this case and (of) the other two cases are held in Samar, especially in the City of Calbayog, where the said (Congressman) Reynaldo Uy is a resident and absolutely wields power."44 They also asked the Court to hold the proceedings in abeyance until after the May 14, 2007 elections.

In its August 22, 2007 Resolution, the Court denied the petition for transfer of venue for lack of merit. It also directed Judge Navidad to hear the case with dispatch.45

On March 5, 2007, while their petition for change of venue was pending before this Court, respondents filed a petition for certiorari before the CA. They prayed, first, for the issuance of a TRO and/or a writ of preliminary injunction to prohibit Judge Navidad from proceeding with Criminal Case No. 4916 and from causing the implementation of the warrants of arrest against respondents; and second, for the Court to set aside Judge Navidad’s February 20, 2007 Order and the corresponding warrants he issued.46 The TRO was

granted on March 13, 2007, and the CA Decision making the same injunction permanent and setting aside the warrants of arrest was promulgated on May 8, 2007, a few days before the May 14, 2007 elections.

The CA correctly ruled that respondents were not guilty of forum shopping when they filed the two actions. Respondents raised different issues and sought different reliefs in the two actions, although both were grounded on the same set of facts.

The issue in the petition for change of venue is whether the trial of the case was to be moved to another court in light of respondents’ allegations that the same was being used as a tool for their political persecution. On the other hand, the issue in the petition for certiorari before the CA was whether Judge Navidad gravely abused his discretion in issuing the February 20, 2007 Order and the warrants for respondents’ arrest.

Thus, this Court’s Resolution would not have amounted to res judicata that would bar the petition for certiorari before the CA.

We now resolve the substantive issues.

Respondents, in their petition before the CA, questioned the alleged lack of personal determination of probable cause by Judge Navidad in issuing the warrants for their arrest.

Judge Navidad’s Order reads:

In this separate, independent constitutionally-mandated Inquiry conducted for the purpose of determining the sufficiency of the evidence constituting probable cause to justify the issuance of a Warrant of Arrest, the Court perforce, made a very careful and meticulous and (sic) review not only of the records but also the evidence adduced by the prosecution, particularly the sworn statements/affidavits of Mario Abella, Uriendo Moloboco and Edgar Pellina.47

The language of the Order clearly shows that the judge made his own personal determination of the existence of probable cause by examining not only the prosecutor’s report but also his supporting evidence, consisting mainly of the sworn statements of the prosecution’s witnesses.

It is well to remember that there is a distinction between the preliminary inquiry which determines probable cause for the issuance

of a warrant of arrest and the preliminary investigation proper which ascertains whether the offender should be held for trial or be released. The determination of probable cause for purposes of issuing the warrant of arrest is made by the judge. The preliminary investigation proper – whether or not there is reasonable ground to believe that the accused is guilty of the offense charged – is the function of the investigating prosecutor.48

The duty of the judge to determine probable cause to issue a warrant of arrest is mandated by Article III, Section 2 of the Philippine Constitution:

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

In Soliven v. Makasiar,49 the Court explained that this constitutional provision does not mandatorily require the judge to personally examine the complainant and her witnesses. Instead, he may opt to personally evaluate the report and supporting documents submitted by the prosecutor or he may disregard the prosecutor’s report and require the submission of supporting affidavits of witnesses. Thus, in Soliven, we said:

What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause. In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest, the judge is not required to personally examine the complainant and his witnesses. Following established doctrine and procedure, he shall: (1) personally evaluate the report and the supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or (2) if on the basis thereof he finds no probable cause, he may disregard the fiscal’s report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause.

Sound policy dictates this procedure, otherwise judges would by unduly laden with the preliminary examination and investigation of criminal complaints instead of concentrating on hearing and deciding cases filed before their courts.50

What the law requires as personal determination on the part of a judge is that he should not rely solely on the report of the investigating prosecutor.51 This means that the judge should consider not only the report of the investigating prosecutor but also the affidavit and the documentary evidence of the parties, the counter-affidavit of the accused and his witnesses, as well as the transcript of stenographic notes taken during the preliminary investigation, if any, submitted to the court by the investigating prosecutor upon the filing of the Information.52

The Court has also ruled that the personal examination of the complainant and his witnesses is not mandatory and indispensable in the determination of probable cause for the issuance of a warrant of arrest. The necessity arises only when there is an utter failure of the evidence to show the existence of probable cause.53 Otherwise, the judge may rely on the report of the investigating prosecutor, provided that he likewise evaluates the documentary evidence in support thereof.

Contrary to respondents’ claim, Judge Navidad did not gravely abuse his discretion in issuing the same.

A perusal of the assailed Order bears out this fact.

It was only through a review of the proceedings before the prosecutor that could have led Judge Navidad to determine that "the accused were given the widest latitude and ample opportunity to challenge the charge of Murder which resulted, among others, (in) a filing of a counter-charge of Perjury."54 Likewise, his personal determination revealed no improper motive on the part of the prosecution and no circumstance which would overwhelm the presumption of regularity in the performance of official functions.55 Thus, he concluded that the previous Order, denying the motion for the issuance of warrants of arrest, was not correct.56

These statements sufficiently establish the fact that Judge Navidad complied with the constitutional mandate for personal determination of probable cause before issuing the warrants of arrest.

The CA likewise overlooked a fundamental rule we follow in this jurisdiction. It is an established doctrine that injunction will not lie to enjoin a criminal prosecution because public interest requires that criminal acts be immediately investigated and prosecuted for the protection of society.57

However, it is also true that various decisions of this Court have laid down exceptions to this rule, among which are:

a. To afford adequate protection to the constitutional rights of the accused (Hernandez v. Albano, et al., L-19272, January 25, 1967, 19 SCRA 95);

b. When necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions (Dimayuga, et al. v. Fernandez, 43 Phil. 304; Hernandez v. Albano, supra; Fortun v. Labang, et al., L-38383, May 27, 1981, 104 SCRA 607);

c. When there is a pre-judicial question which is sub[-]judice (De Leon v. Mabanag, 70 Phil. 202);

d. When the acts of the officer are without or in excess of authority (Planas v. Gil, 67 Phil. 62);

e. Where the prosecution is under an invalid law, ordinance or regulation (Young v. Rafferty, 33 Phil. 556; Yu Cong Eng v. Trinidad, 47 Phil. 385, 389);

f. When double jeopardy is clearly apparent (Sangalang v. People and Avendia, 109 Phil. 1140);

g. Where the court has no jurisdiction over the offense (Lopez v. City Judge, L-25795, October 29, 1966, 18 SCRA 616);

h. Where there is a case of persecution rather than prosecution (Rustia v. Ocampo, CA-G.R. No. 4760, March 25, 1960);

i. Where the charges are manifestly false and motivated by the lust for vengeance (Recto v. Castelo, 18 L.J. [1953], cited in Rañoa v. Alvendia, CA-G.R. No. 30720-R, October 8, 1962; Cf. Guingona, et al. v. City Fiscal, L-60033, April 4, 1984, 128 SCRA 577); x x x

j. When there is clearly no prima facie case against the accused and a motion to quash on that ground has been denied (Salonga v. Paño, et al., L-59524, February 18, 1985, 134 SCRA 438)[; and]

[k.] Preliminary injunction has been issued by the Supreme Court to prevent the threatened unlawful arrest of petitioners (Rodriguez v. Castelo, L-6374, August 1, 1953).58

Respondents insisted that political persecution by their political rivals was the underlying reason for the filing of criminal charges against them, and used this as basis for asking the appellate court to stop the proceedings in the trial court.

Indeed, this Court has recognized that, in certain instances, political persecution or political motives may have impelled the filing of criminal charges against certain political rivals. But this Court has also ruled that any allegation that the filing of the charges is politically motivated cannot justify the prohibition of a criminal prosecution if there is otherwise evidence to support the charges.59

In this case, the judge, upon his personal examination of the complaint and evidence before him, determined that there was probable cause to issue the warrants of arrest after the provincial prosecution, based on the affidavits presented by complainant and her witnesses, found probable cause to file the criminal Information. This finding of the Provincial Prosecutor was affirmed by the Secretary of Justice.

To establish political harassment, respondents must prove that the public prosecutor, not just the private complainant, acted in bad faith in prosecuting the case or has lent himself to a scheme that could have no other purpose than to place respondents in contempt and disrepute.60 It must be shown that the complainant possesses the power and the influence to control the prosecution of cases.61

Likewise, the allegation that the filing of the complaint was politically motivated does not serve to justify the nullification of the informations where the existence of such motive has not been sufficiently established nor substantial evidence presented in support thereof.621avvphi1

Other than their own self-serving claims, respondents have adduced absolutely no proof of the perceived political persecution being waged by their rivals. Respondents have not shown any evidence of such a grand design. They have not alleged, much less proved, any ill motive or malice that could have impelled the provincial prosecutor, the judge, and even the Secretary of Justice to have respectively ruled in the way each of them did. In short, respondents are holding tenuously only on the hope that this Court will take them at their word and grant the relief they pray for. This Court, however, cannot anchor its ruling on mere allegations.

Needless to say, a full-blown trial is to be preferred to ferret out the truth.63 If, as respondents claim, there is no evidence of their

culpability, then their petition for bail would easily be granted. Thereafter, the credibility of the prosecution’s and the accused’s respective evidence may be tested during the trial. It is only then that the guilt or innocence of respondents will be determined. Whether the criminal prosecution was merely a tool for harassment or whether the prosecution’s evidence can pass the strict standards set by the law and withstand the exacting scrutiny of the court will all be resolved at the trial of the case.

The criminal Information in this case was filed four years ago and trial has yet to begin. The victim’s kin, indeed, all the parties, are awaiting its resolution. Any further delay will amount to an injustice.

WHEREFORE, the foregoing premises considered, the Court of Appeals Decision dated May 8, 2007 and Resolution dated October 8, 2007 in CA-G.R. SP No. 02558 are hereby REVERSED and SET ASIDE, and the Permanent Injunction is hereby DISSOLVED. The Order of the Regional Trial Court of Calbayog City, Samar, dated February 20, 2007, is hereby REINSTATED. The Regional Trial Court of Calbayog City, Samar, is DIRECTED to proceed with hearing, and to decide Criminal Case No. 4916 with dispatch.

SO ORDERED.

ATTY. ERNESTO A. TABUJARA III and CHRISTINE S. DAYRIT,                              Petitioners,

-  versus  -

PEOPLE OF THE PHILIPPINESand DAISY AFABLE,                            Respondents.

G.R. No.  175162

Present:

YNARES-SANTIAGO, J.,       Chairperson,CARPIO,*

AZCUNA,**

CHICO-NAZARIO, andNACHURA, JJ.

Promulgated:

October 29, 2008x- - - - - - - - - - - - - - - - - - - - - - - - - - - - -  - - - - - - - - - - - - - - - - - - - - - -x  D E C I S I O N  CHICO-NAZARIO, J.:

 This petition assails the 24 February 2004 Decision of the Court

of Appeals in CA-G.R. SP No. 63280 denying petitioners’ petition for review and directing the Municipal Trial Court of Meycauayan, Bulacan, Branch 11, to proceed with the trial of Criminal Cases Nos. 99-29037 and 99-29038, as well as the 23 October 2006 Resolution denying the motion for reconsideration.

 The antecedent facts are as follows: On 17 September 1999, respondent Daisy Dadivas-Afable

simultaneously filed two criminal complaints against petitioners for Grave Coercion and Trespass to Dwelling.  The complaints read, thus:

 Art. 286 (Grave Coercion)

 That on the 14th day of September 1999 at

around 6:00 o’clock in the morning more or less, in Brgy. Iba, Municipality of Meycauayan, Province of Bulacan, Republic of the Philippines and within the jurisdiction of this Honorable Court, the above-named accused without authority of law, by conspiring, confederating and mutually helping to (sic) one another, did then and there willfully, unlawfully and feloniously forced to go with them one DAISY DADIVAS-AFABLE and against the latter’s will.

 Art. 280, par. 2 (Trespass to Dwelling) 

That on the 14th day of September 1999 at around 6:00 o’clock in the morning more or less, in Brgy. Iba, Municipality of Meycauayan, Province of Bulacan, Republic of the Philippines and within the jurisdiction of this Honorable Court, the above-named accused being then a (sic) private persons, by conspiring, confederating and mutually helping to (sic) one another, did then and there willfully, unlawfully and feloniously enter the house owned by one DAISY DADIVAS-AFABLE by opened the gate and against the latter’s will.[1]

  

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

 

Petitioners denied the allegations against them.  They argued that on 14 September 1999, they went to the house of respondent to thresh out matters regarding some missing pieces of jewelry.  Respondent was a former employee of Miladay Jewels, Inc., a company owned by the Dayrits and who was then being administratively investigated in connection with missing jewelries.  Despite several summons to appear, respondent went on AWOL (absence without official leave).  

 Judge Calixtro O. Adriatico of the Municipal Trial Court of

Meycauayan, Bulacan, Branch II, conducted the preliminary examination.  On 7 January 2000, he issued an Order dismissing the complaints for lack of probable cause, thus:

 After a careful perusal of the allegation setforth in

the complaint-affidavit, taking into consideration the allegation likewise setforth in the counter-affidavit submitted by the respondents and that of their witnesses, the Court finds no probable cause to proceed with trial on the merits of the above-entitled cases.

 The Court believes and so holds that the instant

complaints are merely leverage to the estafa[4] case already filed against private complainant herein Daisy Afable by the Miladay Jewels Inc. wherein respondent Atty. Tabujara III is its legal counsel; while respondent Dayrit appears to be one of the officers of the said company.

 As could be gleaned from the record, private

complainant herein Daisy Afable is being charged with the aforestated estafa case for having allegedly embezzled several pieces of jewelry from the Miladay Jewels Inc., worth P2,177,156.00.

 WHEREFORE, let these cases be dismissed for lack

of probable cause.[5]

  

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

 In their Opposition to the Motion for Reconsideration,

petitioners argued that even before respondent filed the criminal complaints for grave coercion and trespass to dwelling, she was already being administratively investigated for the missing jewelries; that she was ordered preventively suspended pending said investigation; that the theft of the Miladay jewels was reported to the Makati Police on 7 September 1999 with respondent Afable being named as the primary suspect; that on 17 September 1999, which corresponded to the date of filing of the criminal complaints against petitioners, the employment of respondent with Miladay, Jewels, Inc. was terminated.  Petitioners further alleged that respondent filed the criminal complaints for grave coercion and trespass to dwelling as leverage to compel petitioners to withdraw the estafa case.

 On 2 May 2000, Judge Adriatico issued an Order reversing his

earlier findings of lack of probable cause.  This time, he found probable cause to hold petitioners for trial and to issue warrants of arrest, thus:

 Acting on the “Motion for Reconsideration” filed by

the private complainant herein on January 17, 2000, with “Opposition…” filed by the accused on January 27, 2000, taking into consideration the “Manifestation/Brief Memorandum” filed by the said private complainant on March 4, 2000, the Court found cogent reason to reconsider its order dated January 7, 2000.

 The sworn allegation/statement of witness Mauro V.

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

 WHEREFORE, in order to ferret out the

truth/veracity of the complainant’s allegation and in order

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

 Let therefore warrant of arrest be issued against all

the accused in Criminal Case No. 99-29038 (Grave Coercions), fixing their bail for their provisional liberty in the amount of P12,000.00 for each of them.

 As regard Criminal Case No. 99-29037 (Trespass to

Dwelling) the same shall be governed by the Rules on Summary Procedure.[6]

  

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

 Acting on the “Motion for Reconsideration” filed by

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

 The Court has resolved to try the above-entitled

cases on the merits so as to ferret out the truth of the private complainant’s allegations and there being probable cause to warrant criminal prosecution of the same.

 The accused’s contention that the statement of

witness Mauro de Lara is bereft of credibility and that the complaints at bar were initiated merely for harassment purposes could be ventilated well in a full blown trial.

 WHEREFORE, in view of the foregoing reason, let

the trial of these cases proceed as already scheduled.[7]

  

Petitioners moved for clarificatory hearings which were conducted on 23 August 2000 and 31 August 2000.  However, before the court a quo could render a resolution based on said clarificatory

hearings, petitioners filed on 15 September 2000 a petition for certiorari before the Regional Trial Court with prayer for issuance of temporary restraining order and writ of preliminary injunction.[8]  Petitioners sought to annul the 2 May 2000 and 14 July 2000 Orders of the court a quo for having been issued with grave abuse of discretion.  Petitioners argued that the court a quo gravely abused its discretion in issuing said Orders finding probable cause and ordering the issuance of warrants of arrest based solely on the unsworn statement of Mauro V. de Lara who never appeared during preliminary investigation and who was not personally examined by the investigating judge.

 On 18 September 2000, Executive Judge Danilo A. Manalastas

of the Regional Trial Court of Malolos, Bulacan, Branch 7, issued an Order[9] granting a 72-hour temporary restraining order and enjoining the Municipal Trial Court from proceeding with the prosecution of petitioners in Criminal Case Nos. 99-29037 and 99-29038.

 The case was thereafter raffled to Branch 79 which rendered its

Decision[10] denying the petition for annulment of the 2 May 2000 and 14 July 2000 Orders of the Municipal Trial Court.  The Regional Trial Court found that after conducting clarificatory hearings, the court a quo issued an Order on 18 September 2000, finding probable cause.  The Regional Trial Court further ruled that any defect in the issuance of the 2 May 2000 and 14 July 2000 Orders finding probable cause based solely on the unsworn statement of Mauro V. de Lara who failed to appear during the preliminary examination and who was not personally examined by the investigating judge, was cured by the issuance of the 18 September 2000 Order.  The Regional Trial Court reasoned, thus:

 While it is true that respondent Judge Hon. Calixto

O. Adriatico dismisses both criminal cases last January 7, 2000 finding no probable cause and later on reverse himself by issuing the question Order dated May 2, 2000 alleging among others that said Judge inadvertently overlooked the statement of witness Mauro V. De Lara, the stubborn facts remain that whatever defects, or shortcomings on the parts of the respondent Judge was cured when he conducted clarificatory examination on the dates earlier mentioned in this Order.[11]

  

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

 RESPONSIVE OF ALL THE FOREGOING, the instant

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

 ACCORDINGLY, the Presiding Judge of branch II,

the Hon. Calixto O. Adriatico may now proceed to hear and decide crim. Cases nos. 99-29037 and 99-29038 pending before that Court.[12]

  

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

 However, the Court of Appeals denied the petition on the

ground that petitioners resorted to the wrong mode of appeal; i.e., instead of an ordinary appeal, petitioners filed a petition for review. [13]  The dispositive portion of the Decision of the Court of Appeals, reads:

 WHEREFORE, in view of the foregoing, the instant

Petition for Review is hereby DENIED.  The Municipal Trial Court of Meycauayan, Bulacan, Branch II is directed to proceed with the trial of Criminal Case Nos. 99-29037 and 99-29038 and to dispose of them with deliberate dispatch.[14]

  

Petitioners filed a motion for reconsideration but it was denied.[15]  Hence, the instant petition raising the following assignment of errors:

 I. THE COURT OF APPEALS ERRED IN NOT RULING THAT THE TRIAL COURT HAD ACTED WITH GRAVE ABUSE OF DISCRETION IN BASING ITS FINDING OF PROBABLE CAUSE TO HOLD PETITIONERS FOR TRIAL ON THE MERITS AND ISSUANCE OF WARRANTS OF ARREST AGAINST THEM, UPON AN UNSWORN STATEMENT OF A WITNESS WHO NEVER APPEARED BEFORE, NOR WAS PERSONALLY EXAMINED BY, THE TRIAL COURT. 

A.  THE CONSTITUTION GUARANTEES THAT NO WARRANT OF ARREST SHALL ISSUE EXCEPT UPON PROBABLE CAUSE TO BE DETERMINED PERSONALLY BY THE JUDGE AND AFTER PERSONALLY EXAMINING UNDER OATH THE COMPLAINANT AND WITNESSES. 

II. PETITIONERS ASSERT THEIR RIGHT GUARANTEED BY THE CONSTITUTION WHICH TAKES PRECEDENCE OVER RULES OF PROCEDURE OR TECHNICALITIES.

 A.  IT IS WELL-SETTLED THAT THIS HONORABLE COURT IS BOUND BY THE ALLEGATIONS IN THE PETITION AND NOT BY ITS CAPTION.[16]

  

          Petitioners insist that the Orders of the court a quo dated 2 May 2000 and 14 July 2000 should be annulled for having been issued with grave abuse of discretion because the finding of probable cause was based solely on the unsworn statement of Mauro De Lara who never appeared during the preliminary examination.  Petitioners also allege that since De Lara never appeared before the investigating judge, his statement was hearsay and cannot be used as basis for finding probable cause for the issuance of warrant of arrest or to hold petitioners liable for trial.  Granting that the statement of De Lara was

subscribed before “Judge Paguio,” the same cannot be used as basis because the law requires that the statement be sworn to before the investigating judge and no other.           In its Comment, respondent People of the Philippines argue that the Court of Appeals correctly dismissed petitioners’ petition because they resorted to the wrong mode of appeal.           On the other hand, respondent avers that the issue on the propriety of the issuance by the court a quo of the 2 May 2000 and 14 July 2000 Orders has become moot because clarificatory hearings were thereafter conducted and another Order dated 18 September 2000 was issued finding probable cause against petitioners; and, that the statement of Mauro De Lara was subscribed and sworn to before Judge Orlando Paguio although it was Judge Calixtro Adriatico who acted as the investigating judge.           The petition is meritorious.            Before proceeding to the substantive issues, we first address the issue of whether or not the Court of Appeals properly denied the petition for review filed by the petitioners under Rule 42 of the Rules of Court.            In denying the petition for review under Section 1,[17] Rule 42 of the 1997 Rules of Court filed by petitioners, the appellate court stressed that they availed of the wrong mode of review in bringing the case to it since the petitioners filed an original action under Rule 65 of the Rules of Court to the RTC, the remedy availed of should have been an appeal under Section 2(a) of Rule 41 of the Rules of Court: 

SEC. 2.  Modes of appeal. –             (a)        Ordinary appeal. – The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its original jurisdiction shall be taken by filing a notice of appeal with the court which rendered the judgment or final order appealed from and serving a copy thereof upon the adverse party.  No record on appeal shall be required except in special proceedings and other cases of multiple or separate appeals where the law or these Rules so require.  In such cases, the record on appeal shall be filed and served in like manner.  (Emphasis supplied.)

  

          It is only when the decision of the RTC was rendered in the exercise of appellate jurisdiction would a petition for review under Rule 42 be proper[18]

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

The present controversy involved petitioners’ sacrosanct right to liberty, which is protected by the Constitution.  No person should be deprived of life, liberty, or property without due process of law.[19]

           While it is true that rules of procedure are intended to promote rather than frustrate the ends of justice, and while the swift unclogging of the dockets of the courts is a laudable objective, it nevertheless must not be met at the expense of substantial justice.[20]

 The Court has allowed some meritorious cases to proceed

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

 In those rare cases to which we did not stringently apply the

procedural rules, there always existed a clear need to prevent the commission of a grave injustice.  Our judicial system and the courts have always tried to maintain a healthy balance between the strict enforcement of procedural laws and the guarantee that every litigant is given the full opportunity for a just and proper disposition of his cause.[22]

 

The emerging trend in the rulings of this Court is to afford every party litigant the amplest opportunity for the proper and just determination of his cause, free from the constraints of technicalities.  Time and again, we have consistently held that rules must not be applied so rigidly as to override substantial justice.[23] 

 The Court of Appeals should have looked beyond the alleged

technicalities to open the way for the resolution of the substantive issues in the instance case.  The Court of Appeals, thus, erred in dismissing petitioners’ petition for review.  By dismissing the said Petition, the Court of Appeals absolutely foreclosed the resolution of all the substantive issues petitioners were repeatedly attempting to raise before the Court of Appeals. 

 We now proceed to the resolution of the substantive issues

raised by the petitioners.              Section 2, Article III, of the 1987 Constitution, provides: 

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

  

          It is constitutionally mandated that a warrant of arrest shall issue only upon finding of probable cause personally determined by the judge after examination under oath or affirmation of the complainant and the witnesses he/she may produce, and particularly describing the person to be seized.           To determine the existence of probable cause, a preliminary investigation is conducted.  A preliminary investigation is an inquiry or proceeding to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and

the respondent is probably guilty thereof, and should be held for trial.[24]

 A preliminary investigation is required to be

conducted before the filing of a complaint or information for an offense where the penalty prescribed by law is at least 4 years, 2 months and 1 day without regard to the fine.[25]    Thus, for cases where the penalty prescribed by law is lower than 4 years, 2 months and 1 day, a criminal complaint may be filed directly with the prosecutor or with the Municipal Trial court.  In either case, the investigating officer (i.e., the prosecutor or the Municipal Trial Court Judge) is still required to adhere to certain procedures for the determination of probable cause and issuance of warrant of arrest.             In the instant case, respondent directly filed the criminal complaints against petitioners for grave coercion and trespass to dwelling before the Municipal Trial Court.  The penalty prescribed by law for both offenses is arresto mayor, which ranges from 1 month and 1 day to 6 months.  Thus, Section 9, Rule 112 of the Rules of Court applies, to wit: 

            SEC. 9. Cases not requiring a preliminary investigation nor covered by the Rule on Summary Procedure. –              x x x x             (b)  If filed with the Municipal Trial Court. – If the complaint or information is filed with the Municipal Trial Court or Municipal Circuit Trial Court for an offense covered by this section, the procedure in section 3(a) of this Rule shall be observed.  If within ten (10) days after the filing of the complaint or information, the judge finds no probable cause after personally evaluating the evidence, or after personally examining in writing and under oath the complainant and his witnesses in the form of searching questions and answers, he shall dismiss the same.  He may, however, require the submission of additional evidence, within ten (10) days from notice, to determine further the existence of probable cause.  If the judge still finds no probable cause despite the additional evidence, he shall, within ten (10) days from its submission or expiration of said period, dismiss the case.  When he finds probable cause, he shall issue a

warrant of arrest or a commitment order if the accused had already been arrested, and hold him for trial.  However, if the judge is satisfied that there is no necessity for placing the accused under custody, he may issue summons instead of a warrant of arrest. (Emphasis supplied.)  Corollarily, Section 6 of the same Rule provides:  SEC. 6. When warrant of arrest may issue. – x x x             (b)  By the Municipal Trial Court. – x x x [T]he judge may issue a warrant of arrest if he finds after an examination in writing and under oath of the complainant and his witnesses in the form of searching questions and answers, that a probable cause exists and that there is a necessity of placing the respondent under immediate custody in order not to frustrate the ends of justice.  

          Clearly, Judge Adriatico gravely abused his discretion in issuing the assailed 2 May 2000 and 14 July 2000 Orders finding probable cause to hold petitioners liable for trial and to issue warrants of arrest because it was based solely on the statement of witness Mauro De Lara whom Judge Adriatico did not personally examine in writing and under oath; neither did he propound searching questions.  He merely stated in the assailed 2 May 2000 Order that he overlooked the said statement of De Lara; nevertheless, without conducting a personal examination on said witness or propounding searching questions, Judge Adriatico still found De Lara’s allegations sufficient to establish probable cause.  Plainly, this falls short of the requirements imposed by no less than the Constitution.           In Sangguniang Bayan of Batac v. Judge Albano,[26] the Court found respondent judge guilty of ignorance of the law because he failed to comply with the procedure on the issuance of warrant of arrest, thus: 

Failure to comply with such procedure will make him administratively liable.  In the case at bar, respondent judge issued several warrants of arrest without examining the complainant and his witnesses in

writing and under oath, in violation of Section 6 of Rule 112 which provides: 

Sec. 6. When warrant of arrest may issue. – x x x (b) By the Municipal Trial Court. – If the municipal trial judge conducting the preliminary investigation is satisfied after an examination in writing and under oath of the complainant and his witnesses in the form of searching questions and answers, that a probable cause exists and that there is a necessity of placing the respondent under immediate custody in order not to frustrate the ends of justice, he shall issue a warrant of arrest. 

            The records show that respondent judge has violated the rules on preliminary investigation and issuance of a warrant of arrest since the start of his term as municipal judge in Batac, Ilocos Norte in September 1991.  The gross ignorance of respondent judge has immensely prejudiced the administration of justice.  Parties adversely affected by his rulings dismissing their complaints after preliminary investigation have been denied their statutory right of review that should have been conducted by the provincial prosecutor.  His practice of issuing warrants of arrest without examining the complainants and their witnesses is improvident and could have necessarily deprived the accused of their liberty however momentary it may be.  Our Constitution requires that all members of the judiciary must be of proven competence, integrity, probity and independence.  Respondent judge’s stubborn adherence to improper procedures and his constant violation of the constitutional provision requiring him to personally examine the complainant and the witness in writing and under oath before issuing a warrant of arrest makes him unfit to discharge the functions of a judge.  

          When the investigating judge relied solely on the affidavit of witness De Lara which was not sworn to before him and whom he

failed to examine in the form of searching questions and answers, he deprived petitioners of the opportunity to test the veracity of the allegations contained therein.  Worse, petitioners’ arguments that De Lara’s affidavit was hearsay was disregarded by the investigating judge despite the fact that the allegations therein were completely rebutted by petitioners’ and their witnesses’ affidavits, all of whom appeared before and were personally examined by the investigating judge.  It was thus incorrect for the court a quoto rule thus: 

The accused’s contention that the statement of witness Mauro de Lara is bereft of credibility and that the complaints at bar were initiated merely for harassment purposes could be ventilated well in a full blown trial.[27]

  

          In sum, De Lara’s affidavit cannot be relied upon by the court a quo for its finding of probable cause.  

In addition, this Court finds that the warrants of arrest were precipitously issued against petitioners.  Deprivation of a citizen’s liberty through the coercive process of a warrant of arrest is not a matter which courts should deal with casually.  Any wanton disregard of the carefully-wrought out processes established pursuant to the Constitution’s provisions on search warrants and warrants of arrest is a serious matter primarily because its effects on the individual wrongly-detained are virtually irremediable.[28] 

 The procedure described in Section 6 of Rule 112 is mandatory

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

 The issuance of warrants of arrest is not mandatory.  The

investigating judge must find that there is a necessity of placing the petitioners herein under immediate custody in order not to frustrate the ends of justice.[30]  Perusal of the records shows no necessity for

the immediate issuance of warrants of arrest.  Petitioners are not flight risk and have no prior criminal records.

 Respondent’s contention that any defect in the 2 May

2000 and 14 July 2000 Orders of the court a quo has been cured by its 18 September 2000 Order is flawed.  It will be recalled that on 15 September 2000, petitioners filed a petition for certiorari before the Regional Trial Court of Meycauayan, Bulacan.  On 18 September 2000, Executive Judge Manalastas issued a temporary restraining order enjoining the court a quo from conducting further proceedings in Criminal Cases Nos. 99-29037 and 99-29038.  However, in contravention of said restraining order, the court a quo issued its Order on even date, i.e., 18 September 2000, finding probable cause against petitioners holding them liable for trial and ordering the issuance of warrants of arrest.  Considering that the court a quo’s 18 September 2000 Order was issued during the effectivity of the temporary restraining order, the same is considered of no effect. 

 WHEREFORE, the petition is GRANTED.  The assailed 24

February 2004 Decision of the Court of Appeals in CA-G.R. SP No. 63280 denying petitioners’ petition for review and directing the Municipal Trial Court of Meycauayan, Bulacan, Branch 11, to proceed with the trial of Criminal Cases Nos. 99-29037 and 99-29038, as well as the 23 October 2006 Resolution denying the motion for reconsideration, are REVERSED and SET ASIDE.  The Municipal Trial Court of Meycauayan, Bulacan, Branch 11, is DIRECTED to dismiss Criminal Cases Nos. 99-29037 and 99-29038 for lack of probable cause and to quash the warrants of arrest against petitioners for having been irregularly and precipitously issued.

           SO ORDERED.