G.R. No.

209387, January 11, 2016

ERWIN LIBO-ON DELA CRUZ, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
LEONEN, J.
Routine baggage inspections conducted by port authorities, although done without search warrants, are not
unreasonable searches per se. Constitutional provisions protecting privacy should not be so literally understood so as
to deny reasonable safeguards to ensure the safety of the traveling public.
For resolution is a Petition for Review on Certiorari1 assailing the Decision2 dated September 28, 2012 and the
Resolution3 dated August 23, 2013 of the Court of Appeals, Cebu City.4 The Court of Appeals affirmed5the trial court's
Judgment6 finding petitioner Erwin Libo-on Dela Cruz (Dela Cruz) guilty beyond reasonable doubt of possessing
unlicensed firearms under Commission on Elections Resolution No. 77647 in relation to Section 2618 of Batas
Pambansa Big. 8819 during the 2007 election period.10
Dela Cruz was an on-the-job trainee of an inter-island vessel. He frequently traveled, "coming back and forth taking a
vessel."12 At around 12:00 noon of May 11, 2007, Dela Cruz was at a pier of the Cebu Domestic Port to go home to
Iloilo.13While buying a ticket, he allegedly left his bag on the floor with a porter.14 It took him around 15 minutes to
purchase a ticket.15
Dela Cruz then proceeded to the entrance of the terminal and placed his bag on the x-ray scanning machine for
inspection.16 The operator of the x-ray machine saw firearms inside Dela Cruz's bag.17
Cutie Pie Flores (Flores) was the x-ray machine operator-on-duty on May 11, 2007.18 She saw the impression of what
appeared to be three (3) firearms inside Dela Cruz's bag.19 Upon seeing the suspected firearms, she called the
attention of port personnel Archie Igot (Igot) who was the baggage inspector then.20
Igot asked Dela Cruz whether he was the owner of the bag.21 Dela Cruz answered Igot in the affirmative and
consented to Igot's manual inspection of the bag.22
"Port Police Officer Adolfo Abregana [(Officer Abregana)] was on duty at the terminal of the Cebu Domestic Port in
Pier 1-G when his attention was called by ... Igot."23 Igot told Officer Abregana that there were firearms in a bag
owned by a certain person.24 Igot then pointed to the person.25 That person was later identified as Dela Cruz.26
Dela Cruz admitted that he was owner of the bag.27 The bag was then inspected and the following items were found
inside: three (3) revolvers; NBI clearance; seaman's book; other personal items; and four (4) live ammunitions placed
inside the cylinder.28 When asked whether he had the proper documents for the firearms, Dela Cruz answered in the
negative.29
Dela Cruz was then arrested and informed of his violation of a crime punishable by law.30 He was also informed of his
constitutional rights.31
In the Information dated November 19, 2003, Dela Cruz was charged with violation of Republic Act No. 8294 for
illegal possession of firearms.32chanroblesvirtuallawlibrary
Criminal Case No. CBU -80084
That on or about the 11th day of May 2007, at about 12:45 p.m. in the City of Cebu, Philippines, and within the
jurisdiction of this Honorable Court, the said accused, with the deliberate intent and without being authorized by law,
did then and there possess and carry outside his residence one (1) Cal. 38 Simith [sic] & Wesson revolver without
serial number; one (1) .22 Smith & Wesson Magnum revolver without serial number; one (1) North American Black
Widow magnum revolver without serial number and four rounds of live ammunitions for cal. 38 without first securing
the necessary license to possess and permit to carry from the proper authorities.
CONTRARY TO LAW.33ChanRoblesVirtualawlibrary
cralawlawlibrary

Subsequently, another Information was filed charging Dela Cruz with the violation of Commission on Elections
Resolution No. 7764, in relation to Section 261 of Batas Pambansa Blg. 88134chanroblesvirtuallawlibrary
Criminal Case No. CBU 80085
That on or about the 11th day of May 2007, at about 12:45 in the afternoon, which is within the election period for the
May 14, 2007 National and Local Elections, in the City of Cebu, Philippines and within the jurisdiction of this
Honorable Court, the said accused, with deliberate intent, did then and there possess and carry outside his residence
the following
One (1) cal. .38 Simith [sic] & Wesson revolver without serial number; One (1) cal. .22 Smith & Wesson Magnum
revolver without serial number; One (1) North American Black Widow magnum revolver without serial number and
four (4) rounds of live ammunitions for cal. 38.
CONTRARY TO LAW.35ChanRoblesVirtualawlibrary
cralawlawlibrary
Dela Cruz entered a plea of not guilty to both charges during arraignment.36
After trial, Branch 12 of the Regional Trial Court, Cebu City found Dela Cruz guilty beyond reasonable doubt of
violating the Gun Ban under Commission on Elections Resolution No. 7764, in relation to Section 261 of Batas
Pambansa Blg. 881 in Criminal Case No. CBU 80085.37 Dela Cruz was sentenced to suffer imprisonment of one (1)
year with disqualification from holding public office and the right to suffrage.38
According to the trial court, the prosecution was able to prove beyond reasonable doubt that Dela Cruz committed
illegal possession of firearms.39 It proved the following elements: "(a) the existence of the subject firearm and (b) the
fact that the accused who owned or possessed it does not have the license or permit to possess the same."40 The
prosecution presented the firearms and live ammunitions found in Dela Cruz's possession.41 It also presented three
(3) prosecution witnesses who testified that the firearms were found inside Dela Cruz's bag.42 The prosecution also
presented a Certification that Dela Cruz did not file any application for license to possess a firearm, and he was not
given authority to carry a firearm outside his residence.43
The trial court also held that the search conducted by the port authorities was reasonable and, thus,
valid44chanroblesvirtuallawlibrary
Given the circumstances obtaining here, the court finds the search conducted by the port authorities reasonable and,
therefore, not violative of the accused's constitutional rights. Hence, when the search of the bag of the accused
revealed the firearms and ammunitions, accused is deemed to have been caught in flagrante delicto, justifying his
arrest even without a warrant under Section 5(a), Rule 113 of the Rules of Criminal Procedure. The firearms and
ammunitions obtained in the course of such valid search are thus admissible as evidence against [the]
accused.45ChanRoblesVirtualawlibrary
cralawlawlibrary
The trial court did not give credence to Dela Cruz's claim that the firearms were "planted" inside his bag by the porter
or anyone who could have accessed his bag while he was buying a ticket.46 According to the trial court, Dela Cruz's
argument was "easy to fabricate, but terribly difficult to disprove."47 Dela Cruz also did not show improper motive on
the part of the prosecution witnesses to discredit their testimonies.48
The trial court dismissed the case for violation of Republic Act No. 8294.49 It held that "Republic Act No. 8294
penalizes simple illegal possession of firearms, provided that the person arrested committed 'no other crime.'"50 Dela
Cruz, who had been charged with illegal possession of firearms, was also charged with violating the Gun Ban under
Commission on Elections Resolution No. 7764.51
The dispositive portion of the trial court's Consolidated Judgment reads
WHEREFORE, the Court finds the accused guilty beyond reasonable doubt of violation of COMELEC Resolution No.
7764 in relation to Section 261 of BP Blg. 881 in Criminal Case No. CBU-80085, and hereby sentences him to suffer
an imprisonment for a period of one (1) year, and to suffer disqualification to hold public office and deprivation of the
right to suffrage.
While Criminal Case No. CBU-80084 for Violation of RA 8294 is hereby DISMISSED. Accordingly, the cash bond

posted by accused therein for his provisional liberty is hereby ordered cancelled and released to said accused.
The subject firearms (Exhs. "H", "I" & "J"), and the live ammunitions (Exhs. "K to K-2"") shall, however, remain in
custodia legis for proper disposition of the appropriate government agency.
SO ORDERED.52 (Emphasis in the original)
cralawlawlibrary
On appeal, the Court of Appeals affirmed the trial court's Judgment.53 It held that the defense failed to show that the
prosecution witnesses were moved by improper motive; thus, their testimonies are entitled to full faith and
credit.54 The acts of government authorities were found to be regular.55
The Court of Appeals did not find Dela Cruz's defense of denial meritorious.56 "Denial as a defense has been viewed
upon with disfavor by the courts due to the ease with which it can be concocted."57 Dela Cruz did not present any
evidence "to show that he had authority to carry outside of residence firearms and ammunition during the period of
effectivity of the Gun Ban [during] election time." The prosecution was able to prove Dela Cruz's guilt beyond
reasonable doubt.
The dispositive portion of the assailed Decision provides
WHEREFORE, premises considered, the appeal is hereby DENIED. The assailed January 27, 2010 Consolidated
Judgment of the Regional Trial Court (RTC), Branch 12 of Cebu City in Criminal Case CBU-59434 is hereby
AFFIRMED. Costs on accused-appellant.
SO ORDERED.59 (Emphasis in the original)
cralawlawlibrary
Dela Cruz filed a Motion for Reconsideration,60 which was denied by the Court of Appeals in its Resolution dated
August 23, 2013.61
Dela Cruz filed this Petition on November 4, 2013.62 In the Resolution63 dated December 9, 2013, this court required
respondent, through the Office of the Solicitor General, to submit its Comment on the Petition. Respondent submitted
its Comment64 on March 6, 2014, which this court noted in the Resolution65dated March 19, 2014.
Dela Cruz claims that he was an on-the-job trainee for an inter-island vessel.66 He was "well[-]acquainted with [the]
inspection scheme [at the] ports."67 He would not have risked placing prohibited items such as unlicensed firearms
inside his luggage knowing fully the consequences of such an action.68
According to Dela Cruz, when he arrived at the port on May 11, 2007, he left his luggage with a porter to buy a
ticket.69 "A considerable time of fifteen minutes went by before he could secure the ticket while his luggage was left
sitting on the floor with only the porter standing beside it."70 He claims that someone must have placed the unlicensed
firearms inside his bag during the period he was away from it.71 He was surprised when his attention was called by
the x-ray machine operator after the firearms were detected.72
Considering the circumstances, Dela Cruz argues that there was no voluntary waiver against warrantless
search73chanroblesvirtuallawlibrary
In petitioner's case, it may well be said that, with the circumstances attending the search of his luggage, he had no
actual intention to relinquish his right against warrantless searches. He knew in all honest belief that when his
luggage would pass through the routine x-ray examination, nothing incriminating would be recovered. It was out of
that innocent confidence that he allowed the examination of his luggage. . . . [H]e believed that no incriminating
evidence wfouldj be found. He knew he did not place those items. But what is strikingly unique about his situation is
that a considerable time interval lapsed, creating an opportunity for someone else to place inside his luggage those
incriminating items.74(Emphasis in the original)cralawlawlibrary
Respondent argues that there was a valid waiver of Dela Cruz's right to unreasonable search and seizure, thus
warranting his conviction.75 Dela Cruz was "caught in flagrante delicto carrying three (3) revolvers and four (4) live
ammunitions when his bag went through the x-ray machine in the Cebu Domestic Port on May 11, 2007, well within
the election period."76 The firearms were seized during a routine baggage x-ray at the port of Cebu, a common
seaport security procedure.77
According to respondent, this case is similar to valid warrantless searches and seizures conducted by airport

personnel pursuant to routine airport security procedures.78

Records are also clear that Dela Cruz voluntarily waived his right to unreasonable searches and seizure.79The trial
court found that Dela Cruz voluntarily gave his consent to the search.80
Dela Cruz's claim that his bag was switched is also baseless.81 The witnesses categorically testified that Dela Cruz
was "in possession of the bag before it went through the x-ray machine, and he was also in possession of the same
bag that contained the firearms when he was apprehended."82
Dela Cruz raised the lone issue of "whether the Court of Appeals gravely erred in finding [him] guilty beyond
reasonable doubt of the crime charged despite the failure of the prosecution to establish his guilt beyond reasonable
doubt[.]"83
The issues for resolution in this case are
First, whether petitioner Erwin Libo-on Dela Cruz was in possession of the illegal firearms within the meaning of the
Commission on Elections Resolution No. 7764, in relation to Section 261 of Batas Pambansa Blg. 881;
Second, whether petitioner waived his right against unreasonable searches and seizures; and
Lastly, assuming that there was no waiver, whether there was a valid search and seizure in this case.
We deny the Petition.
I
The present criminal case was brought to this court under Rule 45 of the Rules of Court. The penalty imposed on
petitioner by the trial court is material in determining the mode of appeal to this court. A petition for review on certiorari
under Rule 45 must be differentiated from appeals under Rule 124, Section 1384 involving cases where the lower
court imposed on the accused the penalty of reclusion perpetua, life imprisonment, or, previously, death.85
In Mercado v. People86chanroblesvirtuallawlibrary
Where the Court of Appeals finds that the imposable penalty in a criminal case brought to it on appeal is at
least reclusion perpetua, death or life imprisonment, then it should impose such penalty, refrain from entering
judgment thereon, certify the case and elevate the entire records to this Court for review. This will obviate the
unnecessary, pointless and time-wasting shuttling of criminal cases between this Court and the Court of Appeals, for
by then this Court will acquire jurisdiction over the case from the very inception and can, without bothering the Court
of Appeals which has fully completed the exercise of its jurisdiction, do justice in the case.
On the other hand, where the Court of Appeals imposes a penalty less than reclusion perpetua, a review of the case
may be had only by petition for review on certiorari under Rule 45 where only errors or questions of law may be
raised.87 (Emphasis supplied, citations omitted)cralawlawlibrary
It is settled that in petitions for review on certiorari, only questions of law are reviewed by this court.88The rule that
only questions of law may be raised in a petition for review under Rule 45 is based on sound and practical policy
considerations stemming from the differing natures of a question of law and a question of fact
A question of law exists when the doubt or controversy concerns the correct application of law or jurisprudence to a
certain set of facts; or when the issue does not call for an examination of the probative value of the evidence
presented, the truth or falsehood of facts being admitted. A question of fact exists when the doubt or difference arises
as to the truth or falsehood of facts or when the query invites calibration of the whole evidence considering mainly the
credibility of the witnesses, the existence and relevancy of specific surrounding circumstances as well as their relation
to each other and to the whole, and the probability of the situation.89ChanRoblesVirtualawlibrary
cralawlawlibrary
Concomitantly, factual findings of the lower courts as affirmed by the Court of Appeals are binding on this court.90
In contrast, an appeal in a criminal case "throws the whole case open for review[.]"91 The underlying principle is that
errors in an appealed judgment, even if not specifically assigned, may be corrected motu propio by the court if the
consideration of these errors is necessary to arrive at a just resolution of the case.92 Nevertheless, "the right to appeal

is neither a natural right nor a part of due process, it being merely a statutory privilege which may be exercised only in
the manner provided for by law[.]"93
II
Petitioner argues that the firearms found in his bag were not his. Thus, he could not be liable for possessing the
contraband. Key to the resolution of this case is whether petitioner possessed firearms without the necessary
authorization from the Commission on Elections. Petitioner was charged under special laws: Republic Act No. 8294
and Commission on Elections Resolution No. 7764, in relation to Section 261 of Batas Pambansa Blg. 881.
The law applicable is Section 2(a) of Commission on Elections Resolution No. 7764, which provides
SECTION 2. Prohibitions. During the election period from January 14, 2007 it shall be unlawful for

a.

Any person, including those possessing a permit to carry firearms outside of residence or place of business,
to bear, carry or transport firearms or other deadly weapons in public places including any building, street,
park, private vehicle or public conveyance. For the purpose firearm includes airgun, while deadly weapons
include hand grenades or other explosives, except pyrotechnics[.]

cralawlawlibrary
Section 261 (q) of Batas Pambansa Blg. 881 states
Section 261. Prohibited Acts. - The following shall be guilty of an election offense
....
(q) Carrying firearms outside residence or place of business. - Any person who, although possessing a permit to carry
firearms, carries any firearms outside his residence or place of business during the election period, unless authorized
in writing by the Commission: Provided, That a motor vehicle, water or air craft shall not be considered a residence or
place of business or extension hereof. (Par. (1), Id.)
This prohibition shall not apply to cashiers and disbursing officers while in the performance of their duties or to
persons who by nature of their official duties, profession, business or occupation habitually carry large sums of
money or valuables.
cralawlawlibrary
For a full understanding of the nature of the constitutional rights involved, we will examine three (3) points of alleged
intrusion into the right to privacy of petitioner: first, when petitioner gave his bag for x-ray scanning to port authorities;
second, when the baggage inspector opened petitioner's bag and called the Port Authority Police; and third, when the
police officer opened the bag to search, retrieve, and seize the firearms and ammunition.
III
The first point of intrusion occurred when petitioner presented his bag for inspection to port personnelthe x-ray
machine operator and baggage inspector manning the x-ray machine station.94 With regard to searches and seizures,
the standard imposed on private persons is different from that imposed on state agents or authorized government
authorities.
In People v. Marti,95 the private forwarding and shipping company, following standard operating procedure, opened
packages sent by accused Andre Marti for shipment to Zurich, Switzerland and detected a peculiar odor from the
packages.96 The representative from the company found dried marijuana leaves in the packages.97 He reported the
matter to the National Bureau of Investigation and brought the samples to the Narcotics Section of the Bureau for
laboratory examination.98 Agents from the National Bureau of Investigation subsequently took custody of the illegal
drugs.99 Andre Marti was charged with and was found guilty of violating Republic Act No. 6425, otherwise known as
the Dangerous Drugs Act.100
This court held that there was no unreasonable search or seizure.101 The evidence obtained against the accused was
not procured by the state acting through its police officers or authorized government agencies.102 The Bill of Rights

does not govern relationships between individuals; it cannot be invoked against the acts of private
individuals103chanroblesvirtuallawlibrary
If the search is made upon the request of law enforcers, a warrant must generally be first secured if it is to pass the
test of constitutionality. However, if the search is made at the behest or initiative of the proprietor of a private
establishment for its own and private purposes, as in the case at bar, and without the intervention of police
authorities, the right against unreasonable search and seizure cannot be invoked for only the act of private individual,
not the law enforcers, is involved. In sum, the protection against unreasonable searches and seizures cannot be
extended to acts committed by private individuals so as to bring it within the ambit of alleged unlawful intrusion by the
government.104ChanRoblesVirtualawlibrary
cralawlawlibrary
Hence, by virtue of Marti, items seized pursuant to a reasonable search conducted by private persons are not
covered by the exclusionary rule.105
To determine whether the intrusion by the port personnel in this case was committed by private or public persons, we
revisit the history and organizational structure of the Philippine Ports Authority.
Port security measures are consistent with the country's aim to develop transportation and trade in conjunction with
national and economic growth. In 1974, the Philippine Ports Authority was created for the reorganization of port
administration and operation functions.106 The Philippine Ports Authority's Charter was later revised through
Presidential Decree No. 857. The Revised Charter provided that the Authority may
after consultation with relevant Government agencies, make rules or regulations for the planning, development,
construction, maintenance, control, supervision and management of any Port or Port District and the services to be
provided therein, and for the maintenance of good order therein, and generally for carrying out the process of this
Decree.107cralawlawlibrary
The Philippine Ports Authority was subsequently given police authority through Executive Order No. 513,108which
provides
Sec. 2. Section 6 is hereby amended by adding a new paragraph to read as follows

Section 6-c. Police Authority - The Authority shall have such police authority within the ports administered by it as
may be necessary to carry out its powers and functions and attain its purposes and objectives, without prejudice to
the exercise of the functions of the Bureau of Customs and other law enforcement bodies within the area. Such police
authority shall include the following
a) To provide security to cargoes, port equipment, structure, facilities, personnel and documents: Provided, however,
That in ports of entry, physical security to import and export cargoes shall be exercised jointly with the Bureau of
Customs;
b) To regulate the entry to, exit from, and movement within the port, of persons and vehicles, as well as movement
within the port of watercraft;
c) To maintain peace and order inside the port, in coordination with local police authorities;
d) To supervise private security agencies operating within the port area; and
e) To enforce rules and regulations promulgated by the Authority pursuant to law. (Emphasis supplied)
cralawlawlibrary
In 1992, the Cebu Port Authority was created to specifically administer all ports located in the Province of
Cebu.109 The Cebu Port Authority is a "public-benefit corporation . . . under the supervision of the Department of
Transportation and Communications for purposes of policy coordination."110 Control of the ports was transferred to the
Cebu Port Authority on January 1, 1996, when its operations officially began.111
In 2004, the Office for Transportation Security was designated as the "single authority responsible for the security of
the transportation systems [in] the country[.]"112 Its powers and functions included providing security measures for all
transportation systems in the country

b. Exercise operational control and supervision over all units of law enforcement agencies and agency personnel
providing security services in the transportation systems, except for motor vehicles in land transportation, jointly with
the heads of the bureaus or agencies to which the units or personnel organically belong or are assigned;
c. Exercise responsibility for transportation security operations including, but not limited to, security screening of
passengers, baggage and cargoes, and hiring, retention, training and testing of security screening personnel;
d. In coordination with the appropriate agencies and/or instrumentalities of the government, formulate, develop,
promulgate and implement comprehensive security plans, policies, measures, strategies and programs to ably and
decisively deal with any threat to the security of transportation systems, and continually review, assess and upgrade
such security plans, policies, measures, strategies and programs, to improve and enhance transportation security
and ensure the adequacy of these security measures;
e. Examine and audit the performance of transportation security personnel, equipment and facilities, and, thereafter,
establish, on a continuing basis, performance standards for such personnel, equipment and facilities, including for the
training of personnel;
f. Prepare a security manual/master plan or programme which shall prescribe the rules and regulations for the
efficient and safe operation of all transportation systems, including standards for security screening procedures, prior
screening or profiling of individuals for the issuance of security access passes, and determination of levels of security
clearances for personnel of the OTS, the DOTC and its attached agencies, and other agencies of the government;
g. Prescribe security and safety standards for all transportation systems in accordance with existing laws, rules,
regulations and international conventions;
h. Subject to the approval of the Secretary of the DOTC, issue Transportation Security Regulations/Rules and amend,
rescind or revise such regulations or rules as may be necessary for the security of the transportation systems of the
country[.]113 (Emphasis supplied)cralawlawlibrary
The Cebu Port Authority has adopted security measures imposed by the Office for Transportation Security, including
the National Security Programme for Sea Transport and Maritime Infrastructure.114
The Cebu Port Authority is clothed with authority by the state to oversee the security of persons and vehicles within
its ports. While there is a distinction between port personnel and port police officers in this case, considering that port
personnel are not necessarily law enforcers, both should be considered agents of government under Article III of the
Constitution. The actions of port personnel during routine security checks at ports have the color of a state-related
function.
In People v. Malngan,115 barangay tanod and the Barangay Chairman were deemed as law enforcement officers for
purposes of applying Article III of the Constitution.116 In People v. Lauga,117 this court held that a "bantay bayan," in
relation to the authority to conduct a custodial investigation under Article III, Section 12118 of the Constitution, "has the
color of a state-related function and objective insofar as the entitlement of a suspect to his constitutional rights[.]"119
Thus, with port security personnel's functions having the color of state-related functions and deemed agents of
government, Marti is inapplicable in the present case. Nevertheless, searches pursuant to port security measures are
not unreasonable per se. The security measures of x-ray scanning and inspection in domestic ports are akin to
routine security procedures in airports.
In People v. Suzuki,120 the accused "entered the pre-departure area of the Bacolod Airport Terminal."121He was "bound
for Manila via flight No. 132 of the Philippine Airlines and was carrying a small traveling bag and a box marked
'Bongbong's piaya."122 The accused "proceeded to the 'walk through metal detector,' a machine which produces a red
light and an alarm once it detects the presence of metallic substance or object."123 "Thereupon, the red light switched
on and the alarm sounded, signifying the presence of metallic substance either in his person or in the box he was
carrying."124 When the accused was asked to open the content of the box, he answered "open, open."125 Several
packs of dried marijuana fruiting tops were then found inside the box.126 Suzuki argued that the box was only given to
him as "pasalubong" by a certain Pinky, whom he had sexual relations with the night before.127 He did not know the
contents of the box.128
This court in Suzuki found that the search conducted on the accused was a valid exception to the prohibition against
warrantless searches as it was pursuant to a routine airport security procedure129chanroblesvirtuallawlibrary

It is axiomatic that a reasonable search is not to be determined by any fixed formula but is to be resolved according to
the facts of each case. Given the circumstances obtaining here, we find the search conducted by the airport
authorities reasonable and, therefore, not violative of his constitutional rights. Hence, when the search of the box
of piaya revealed several marijuana fruiting tops, appellant is deemed to have been caught in flagrante delicto,
justifying his arrest even without a warrant under Section 5(a), Rule 113 of the Rules of Criminal Procedure. The
packs of marijuana obtained in the course of such valid search are thus admissible as evidence against
appellant.130 (Citations omitted)cralawlawlibrary
The reason behind it is that there is a reasonable reduced expectation of privacy when coming into airports or ports of
travel
Persons may lose the protection of the search and seizure clause by exposure of their persons or property to the
public in a manner reflecting a lack of subjective expectation of privacy, which expectation society is prepared to
recognize as reasonable. Such recognition is implicit in airport security procedures. With increased concern over
airplane hijacking and terrorism has come increased security at the nation's airports. Passengers attempting to board
an aircraft routinely pass through metal detectors; their carry-on baggage as well as checked luggage are routinely
subjected to x-ray scans. Should these procedures suggest the presence of suspicious objects, physical searches
are conducted to determine what the objects are. There is little question that such searches are reasonable, given
their minimal intrusiveness, the gravity of the safety interests involved, and the reduced privacy expectations
associated with airline travel. Indeed, travelers are often notified through airport public address systems, signs and
notices in their airline tickets that they are subject to search and, if any prohibited materials or substances are found,
such would be subject to seizure. These announcements place passengers on notice that ordinary constitutional
protections against warrantless searches and seizures do not apply to routine airport procedures.131 (Emphasis
supplied, citations omitted)cralawlawlibrary
This rationale was reiterated more recently in Sales v. People.132 This court in Sales upheld the validity of the search
conducted as part of the routine security check at the old Manila Domestic Airportnow Terminal 1 of the Ninoy
Aquino International Airport.133
Port authorities were acting within their duties and functions when it used x-ray scanning machines for inspection of
passengers' bags.134 When the results of the x-ray scan revealed the existence of firearms in the bag, the port
authorities had probable cause to conduct a search of petitioner's bag. Notably, petitioner did not contest the results
of the x-ray scan.
IV
Was the search rendered unreasonable at the second point of intrusionwhen the baggage inspector opened
petitioner's bag and called the attention of the port police officer?
We rule in the negative.
The port personnel's actions proceed from the authority and policy to ensure the safety of travelers and vehicles
within the port. At this point, petitioner already submitted himself and his belongings to inspection by placing his bag
in the x-ray scanning machine.
The presentation of petitioner's bag for x-ray scanning was voluntary. Petitioner had the choice of whether to present
the bag or not. He had the option not to travel if he did not want his bag scanned or inspected. X-ray machine
scanning and actual inspection upon showing of probable cause that a crime is being or has been committed are part
of reasonable security regulations to safeguard the passengers passing through ports or terminals. Probable cause is
reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to induce a cautious
man to believe that the person accused is guilty of the offense charged. It refers to the existence of such facts and
circumstances that can lead a reasonably discreet and prudent man to believe that an offense has been committed,
and that the items, articles or objects sought in connection with said offense or subject to seizure and destruction by
law are in the place to be searched.135cralawlawlibrary
It is not too burdensome to be considered as an affront to an ordinary person's right to travel if weighed against the
safety of all passengers

Republic of the Philippines

Supreme Court
Manila
SECOND DIVISION
TEOFILO EVANGELISTA,

G.R. No. 163267

Petitioner,
Present:
CARPIO, J., Chairperson,
BRION,
DEL CASTILLO,
ABAD, and
PEREZ, JJ.

- versus-

THE PEOPLE OF THE PHILIPPINES,

Promulgated:
Respondent.
May 5, 2010
x-------------------------------------------------------------------x
DECISION

DEL CASTILLO, J.:

To be guilty of the crime of illegal possession of firearms and ammunition, one does not have to be in actual physical
possession thereof. The law does not punish physical possession alone but possession in general, which includes constructive
possession or the subjection of the thing to the owners control.[1]

This Petition for Review on Certiorari[2] assails the October 15, 2003 Decision[3] of the Court of Appeals (CA) in CA-G.R.
CR No. 21805 which affirmed the January 23, 1998 Decision [4] of the Regional Trial Court (RTC) of Pasay City, Branch 109
convicting petitioner Teofilo Evangelista for violation of Section 1, Presidential Decree (PD) No. 1866,[5] as amended, as well as the
April 16, 2004 Resolution which denied petitioners Motion for Reconsideration.

Factual Antecedents

In an Information[6] dated January 31, 1996, petitioner was charged with violation of Section 1 of PD 1866 allegedly committed as
follows:
That on or about the 30th day of January 1996, at the Ninoy Aquino International Airport, Pasay City,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did, then and there,
wilfully, unlawfully and feloniously have in his possession, custody and control the following items:
1.

One (1) Unit 9mm Jericho Pistol, Israel with SN F-36283 with one (1) magazine;

2.

One (1) Unit Mini-Uzi 9mm Israel Submachine gun with SN 931864 with two (2) magazines;

3.

Nineteen (19) 9mm bullets.

without the corresponding permit or license from competent authority.

CONTRARY TO LAW.

After posting his bail, petitioner filed on February 14, 1996 an Urgent Motion for (a) Suspension of Proceedings and (b) the
Holding of A Preliminary Investigation. [7] The RTC granted the motion and, accordingly, the State Prosecutor conducted the
preliminary investigation.

In a Resolution[8] dated March 6, 1996, the State Prosecutor found no probable cause to indict petitioner and thus recommended
the reversal of the resolution finding probable cause and the dismissal of the complaint. Thereafter, a Motion to Withdraw
Information[9] was filed but it was denied by the trial court in an Order[10] dated March 26, 1996, viz:
Acting on the Motion to Withdraw Information filed by State Prosecutor Aida Macapagal on the ground that
[there exists] no probable cause to indict the accused, the Information having been already filed in Court, the
matter should be left to the discretion of the Court to assess the evidence, hence, for lack of merit, the same is
hereby denied. Let the arraignment of the accused proceed.

When arraigned on March 26, 1996, petitioner pleaded not guilty to the charge. Thereafter, trial ensued.

Version of the Prosecution

In the morning of January 30, 1996, Maximo Acierto, Jr. (Acierto), a Customs Police assigned at the Ninoy Aquino International
Airport (NAIA) District Command, was informed by his superior that a certain passenger of Philippine Airlines (PAL) Flight No. 657
would be arriving from Dubaibringing with him firearms and ammunitions. Shortly after lunch, Acierto, together with Agents Cuymo
and Fuentabella, proceeded to the tube area where they were met by a crewmember who introduced to them herein petitioner.
Acierto asked petitioner if he brought firearms with him and the latter answered in the affirmative adding that the same were
bought in Angola. Thereupon, Acierto was summoned to the cockpit by the pilot, Capt. Edwin Nadurata (Capt. Nadurata), where
the firearms and ammunitions were turned over to him. Petitioner was then escorted to the arrival area to get his luggage and
thereafter proceeded to the examination room where the luggage was examined and petitioner was investigated. In open court,
Acierto identified the firearms and ammunitions.

During the investigation, petitioner admitted before Special Agent Apolonio Bustos (Bustos) that he bought the subject items
in Angola but the same were confiscated by the Dubai authorities, which turned over the same to a PAL personnel
in Dubai. Upon inquiry, the Firearms and Explosive Office (FEO) in Camp Crame certified that petitioner is neither registered with
said office[11] nor licensed holder of aforesaid firearms and ammunitions. Bustos likewise verified from the Bureau of Customs, but

his effort yielded no record to show that the firearms were legally purchased. Among the documents Bustos had gathered during
his investigation were the Arrival Endorsement Form[12] and Customs Declaration Form.[13] A referral letter[14] was prepared
endorsing the matter to the Department of Justice. Bustos admitted that petitioner was not assisted by counsel when the latter
admitted that he bought the firearms in Angola.

SPO4 Federico Bondoc, Jr. (SPO4 Bondoc), a member of the Philippine National Police (PNP) and representative of the FEO,
upon verification, found that petitioner is not a licensed/registered firearm holder. His office issued a certification[15] to that effect
which he identified in court as Exhibit A.

After the prosecution rested its case, petitioner, with leave of court, filed his Demurrer to Evidence, [16] the resolution of which was
deferred pending submission of petitioners evidence.[17]

Version of the Defense

The defense presented Capt. Nadurata whose brief but candid and straightforward narration of the event was synthesized by the
CA as follows:
x x x On January 30, 1996, he was approached by the PAL Station Manager in Dubai, who informed him that
a Filipino contract worker from Angola who is listed as a passenger of PAL flight from Dubai to Manila, was
being detained as he was found in possession of firearms; that if said passenger will not be able to board the
airplane, he would be imprisoned in Dubai; and that the Arabs will only release the passenger if the Captain of
PAL would accept custody of the passenger [herein petitioner] and the firearms. Capt. Nadurata agreed to
take custody of the firearms and the passenger, herein appellant, so that the latter could leave Dubai. The
firearms were deposited by the Arabs in the cockpit of the airplane and allowed the appellant to board the
airplane. Upon arrival in Manila, Capt. Nadurata surrendered the firearms to the airport authorities.

Meanwhile, in view of the unavailability of the defenses intended witness, Nilo Umayaw (Umayaw), the PAL Station Manager
in Dubai, the prosecution and the defense agreed and stipulated on the following points:
1.

That PAL Station Manager Mr. Nilo Umayaw was told by a Dubai Police that firearms and
ammunitions were found in the luggage of a Filipino passenger coming from Angola going to
the Philippines;

2.

That he was the one who turned over the subject firearms to Captain Edwin Nadurata, the Pilot in
command of PAL Flight 657;

3.
4.

5.

That the subject firearms [were] turned over at Dubai;

That the said firearms and ammunitions were confiscated from the accused Teofilo Evangelista
and the same [were] given to the PAL Station Manager who in turn submitted [them] to the PAL Pilot,
Capt. Edwin Nadurata who has already testified;
That [these are] the same firearms involved in this case.[18]

Ruling of the Regional Trial Court

On February 4, 1997, the RTC rendered its Decision, the dispositive portion of which reads:
In view of all the foregoing, the Court finds accused TEOFILO E. EVANGELISTA guilty beyond
reasonable doubt for violation of Sec. 1, P.D. 1866 as amended (Illegal Possession of Firearms and
Ammunitions: (One (1) Unit Mini-Uzi 9mm Israel submachine gun with SN-931864 with two (2) magazines
and nineteen (19) 9mm bullets) and hereby sentences him to imprisonment of Seventeen (17) Years and Four
(4) Months to Twenty (20) Years.
The above-mentioned firearms are hereby ordered forfeited in favor of the government and is
ordered transmitted to the National Bureau of Investigation, Manila for proper disposition.
SO ORDERED.[19]

On April 4, 1997, petitioner filed a Motion for New Trial[20] which the RTC granted.[21] Forthwith, petitioner took the witness
stand narrating his own version of the incident as follows:

On January 28, 1996, he was at Dubai International Airport waiting for his flight to the Philippines. He came
from Luwanda, Angola where he was employed as a seaman at Oil International Limited. While at the airport in Dubai, Arab
policemen suddenly accosted him and brought him to their headquarters where he saw guns on top of a table. The Arabs
maltreated him and forced him to admit ownership of the guns. At this point, PAL Station Manager Umayaw came and talked to
the policemen in Arabian dialect. Umayaw told him that he will only be released if he admits ownership of the guns. When he
denied ownership of the same, Umayaw reiterated that he (petitioner) will be released only if he will bring the guns with him to
the Philippines. He declined and insisted that the guns are not his. Upon the request of Umayaw, petitioner was brought to the
Duty Free area for his flight going to the Philippines. When he was inside the plane, he saw the Arab policemen handing the guns
to the pilot. Upon arrival at the NAIA, he was arrested by the Customs police and brought to the arrival area where his passport
was stamped and he was made to sign a Customs Declaration Form without reading its contents. Thereafter, he was brought to a
room at the ground floor of the NAIA where he was investigated. During the investigation, he was not represented by counsel and
was forced to accept ownership of the guns. He denied ownership of the guns and the fact that he admitted having bought the
same in Angola.

Ruling of the Regional Trial Court

After new trial, the RTC still found petitioner liable for the offense charged but modified the penalty of imprisonment. The dispositive
portion of the Decision dated January 23, 1998 reads:
In view of all the foregoing, the Court finds accused TEOFILO E. EVANGELISTA guilty beyond reasonable
doubt for violation of Sec. 1, P.D. 1866 as amended (Illegal Possession of Firearms and Ammunitions: One (1)
Unit 9mm Jerico Pistol, Israel with SN F-36283 with one (1) magazine; One (1) Unit Mini-Uzi 9mm Israel
submachine gun with SN-931864 with two (2) magazines and nineteen (19) 9mm bullets and hereby
sentences him to imprisonment of Six (6) Years and One (1) Day to Eight (8) Years and a fine of P30,000.00.

The above-mentioned firearms are hereby ordered forfeited in favor of the government and [are] ordered
transmitted to the National Bureau of Investigation, Manilafor proper disposition.
SO ORDERED.[22]

Ruling of the Court of Appeals

On appeal, the CA affirmed the findings of the trial court in its Decision dated October 15, 2003. It ruled that the
stipulations during the trial are binding on petitioner. As regards possession of subject firearms, the appellate court ruled that
Capt. Naduratas custody during the flight from Dubai to Manila was for and on behalf of petitioner. Thus, there was constructive
possession.

Petitioner moved for reconsideration[23] but it was denied by the appellate court in its April 16, 2004 Resolution.

Hence, this petition.

Issues

Petitioner assigns the following errors:

a. The Court of Appeals gravely erred in not acquitting Evangelista from the charge of Presidential Decree No.
1866, Illegal Possession of Firearms.
b. The Court of Appeals gravely erred in not holding that Evangelista was never in possession of any firearm
or ammunition within Philippine jurisdiction and he therefore could not have committed the crime
charged against him.
c. The Court of Appeals gravely erred in holding that Evangelista committed a continuing crime.
d. The Court of Appeals gravely erred in disregarding the results of the preliminary investigation.[24]

We find the appeal devoid of merit.

At the outset, we emphasize that under Rule 45 of the Rules of Court, a petition for review on certiorari shall only raise
questions of law considering that the findings of fact of the CA are, as a general rule, conclusive upon and binding on the Supreme
Court.[25] In this recourse, petitioner indulges us to calibrate once again the evidence adduced by the parties and to re-evaluate the
credibility of their witnesses. On this ground alone, the instant petition deserves to be denied outright. However, as the liberty of
petitioner is at stake and following the principle that an appeal in a criminal case throws the whole case wide open for review, we
are inclined to delve into the merits of the present petition.

In his bid for acquittal, petitioner argues that he could not have committed the crime imputed against him for he was never in
custody and possession of any firearm or ammunition when he arrived in the Philippines. Thus, the conclusion of the appellate
court that he was in constructive possession of the subject firearms and ammunitions is erroneous.

We are not persuaded. As correctly found by the CA:

Appellants argument that he was never found in possession of the subject firearms and ammunitions within
Philippine jurisdiction is specious. It is worthy to note that at the hearing of the case before the court a
quo on October 8, 1996, the defense counsel stipulated that the subject firearms and ammunitions were
confiscated from appellant and the same were given to PAL Station Manager Nilo Umayaw who, in turn,
turned over the same to Capt. Edwin Nadurata. Such stipulation of fact is binding on appellant, for the acts of
a lawyer in the defense of a case are the acts of his client. Granting that Nilo Umayaw was merely told by the
Dubai authorities that the firearms and ammunitions were found in the luggage of appellant and that Umayaw
had no personal knowledge thereof, however, appellants signature on the Customs Declaration Form, which
contains the entry 2 PISTOL guns SENT SURRENDER TO PHILIPPINE AIRLINE, proves that he was the
one who brought the guns to Manila. While appellant claims that he signed the Customs Declaration Form
without reading it because of his excitement, however, he does not claim that he was coerced or persuaded in
affixing his signature thereon. The preparation of the Customs Declaration Form is a requirement for all
arriving passengers in an international flight. Moreover, it cannot be said that appellant had already been
arrested when he signed the Customs Declaration Form. He was merely escorted by Special Agent Acierto to
the arrival area of the NAIA. In fact, appellant admitted that it was only after he signed the Customs
Declaration Form that he was brought to the ground floor of NAIA for investigation. Consequently, appellant
was in constructive possession of the subject firearms. As held in People v. Dela Rosa, the kind of possession
punishable under PD 1866 is one where the accused possessed a firearm either physically or constructively
with animus possidendi or intention to possess the same. Animus possidendi is a state of mind. As such,
what goes on into the mind of the accused, as his real intent, could be determined solely based on his prior
and coetaneous acts and the surrounding circumstances explaining how the subject firearm came to his
possession.
Appellants witness, Capt. Nadurata, the PAL pilot of Flight No. PR 657 from Dubai to Manila on January 30,
1996, testified that he accepted custody of the firearms and of appellant in order that the latter, who was being
detained in Dubai for having been found in possession of firearms, would be released from custody.In other
words, Capt. Naduratas possession of the firearm during the flight from Dubai to Manila was for and on behalf
of appellant.[26]

We find no cogent reason to deviate from the above findings, especially considering petitioners admission during the clarificatory
questioning by the trial court:
Court: So, it is clear now in the mind of the Court, that the firearms and ammunitions will also be with you on
your flight to Manila, is that correct?
A: Yes, your honor.
Court: [You] made mention of that condition, that the Dubai police agreed to release you provided that you will
bring the guns and ammunitions with you? Is that the condition of the Dubai Police?
A: Yes, your honor.
Court: The condition of his release was that he will have to bring the guns and ammunitions to
the Philippines and this arrangement was made by the PAL Supervisor at Dubai and it was Mr.
Umayaw the PAL Supervisor, who interceded in his behalf with the Dubai Police for his flight in
the Philippines.[27]

To us, this constitutes judicial admission of his possession of the subject firearms and ammunitions. This admission, the veracity of
which requires no further proof, may be controverted only upon a clear showing that it was made through palpable mistake or that
no admission was made.[28] No such controversion is extant on record.

Moreover, we cannot ignore the Customs Declaration Form wherein it appeared that petitioner brought the firearms with him upon
his arrival in the Philippines. While there was no showing that he was forced to sign the form, petitioner can only come up with the
excuse that he was excited. Hardly can we accept such pretension.

We are likewise not swayed by petitioners contention that the lower court erroneously relied on the Customs Declaration Form
since it is not admissible in evidence because it was accomplished without the benefit of counsel while he was under police
custody.

The accomplishment of the Customs Declaration Form was not elicited through custodial investigation. It is a customs
requirement which petitioner had a clear obligation to comply. As correctly observed by the CA, the preparation of the Customs
Declaration Form is a requirement for all arriving passengers in an international flight. Petitioner was among those
passengers. Compliance with the constitutional procedure on custodial investigation is, therefore, not applicable in this
case. Moreover, it is improbable that the customs police were the ones who filled out the declaration form. As will be noted, it
provides details that only petitioner could have possibly known or supplied. Even assuming that there was prior accomplishment
of the form which contains incriminating details, petitioner could have easily taken precautionary measures by not affixing his
signature thereto. Or he could have registered his objection thereto especially when no life threatening acts were being employed
against him upon his arrival in the country.

Obviously, it was not only the Customs Declaration Form from which the courts below based their conclusion that petitioner was in
constructive possession of subject firearms and ammunitions. Emphasis was also given on the stipulations and admissions made
during the trial. These pieces of evidence are enough to show that he was the owner and possessor of these items.

Petitioner contends that the trial court has no jurisdiction over the case filed against him. He claims that his alleged possession of
the subject firearms transpired while he was at the Dubai Airport and his possession thereof has ceased when he left for
the Philippines. He insists that since Dubai is outside the territorial jurisdiction of the Philippines and his situation is not one of the
exceptions provided in Article 2 of the Revised Penal Code, our criminal laws are not applicable. In short, he had not committed a
crime within the Philippines.

Indeed it is fundamental that the place where the crime was committed determines not only the venue of the action but is an
essential element of jurisdiction.[29] In order for the courts to acquire jurisdiction in criminal cases, the offense should have been
committed or any one of its essential ingredients should have taken place within the territorial jurisdiction of the court. If the

evidence adduced during the trial shows that the offense was committed somewhere else, the court should dismiss the action for
want of jurisdiction.[30]

Contrary to the arguments put forward by petitioner, we entertain no doubt that the crime of illegal possession of firearms and
ammunition for which he was charged was committed in the Philippines. The accomplishment by petitioner of the Customs
Declaration Form upon his arrival at the NAIA is very clear evidence that he was already in possession of the subject firearms in
the Philippines.

And more than mere possession, the prosecution was able to ascertain that he has no license or authority to possess said
firearms. It bears to stress that the essence of the crime penalized under PD 1866, as amended, is primarily the accuseds lack of
license to possess the firearm. The fact of lack or absence of license constitutes an essential ingredient of the offense of illegal
possession of firearm. Since it has been shown that petitioner was already in the Philippines when he was found in possession of
the subject firearms and determined to be without any authority to possess them, an essential ingredient of the offense, it is
beyond reasonable doubt that the crime was perpetrated and completed in no other place except the Philippines.

Moreover, the jurisdiction of a court over the criminal case is determined by the allegations in the complaint or information. In this
case, the information specifically and categorically alleged that on or about January 30, 1996 petitioner was in possession,
custody and control of the subject firearms at the Ninoy Aquino International Airport, Pasay City, Philippines, certainly a territory
within the jurisdiction of the trial court.

In contrast, petitioner failed to establish by sufficient and competent evidence that the present charge happened in Dubai. It may
be well to recall that while in Dubai, petitioner, even in a situation between life and death, firmly denied possession and ownership
of the firearms. Furthermore, there is no record of any criminal case having been filed against petitioner in Dubai in connection
with the discovered firearms. Since there is no pending criminal case when he left Dubai, it stands to reason that there was no
crime committed in Dubai. The age-old but familiar rule that he who alleges must prove his allegation applies.[31]

Petitioner finally laments the trial courts denial of the Motion to Withdraw Information filed by the investigating prosecutor due to the
latters finding of lack of probable cause to indict him. He argues that such denial effectively deprived him of his substantive right to
a preliminary investigation.

Still, petitioners argument fails to persuade. There is nothing procedurally improper on the part of the trial court in disregarding the
result of the preliminary investigation it itself ordered. Judicial action on the motion rests in the sound exercise of judicial
discretion. In denying the motion, the trial court just followed the jurisprudential rule laid down in Crespo v. Judge Mogul[32] that
once a complaint or information is filed in court, any disposition of the case as to its dismissal or the conviction or acquittal of the

accused rests on the sound discretion of the court. The court is not dutifully bound by such finding of the investigating
prosecutor. In Solar Team Entertainment, Inc v. Judge How[33] we held:
It bears stressing that the court is however not bound to adopt the resolution of the Secretary of Justice since
the court is mandated to independently evaluate or assess the merits of the case, and may either agree or
disagree with the recommendation of the Secretary of Justice. Reliance alone on the resolution of the
Secretary of Justice would be an abdication of the trial courts duty and jurisdiction to determine prima
facie case.

Consequently, petitioner has no valid basis to insist on the trial court to respect the result of the preliminary investigation it ordered
to be conducted.

In fine, we find no reason not to uphold petitioners conviction. The records substantiate the RTC and CAs finding that petitioner
possessed, albeit constructively, the subject firearms and ammunition when he arrived in the Philippines on January 30,
1996. Moreover, no significant facts and circumstances were shown to have been overlooked or disregarded which if considered
would have altered the outcome of the case.

In the prosecution for the crime of illegal possession of firearm and ammunition, the Court has reiterated the essential elements
in People v. Eling[34] to wit: (1) the existence of subject firearm; and, (2) the fact that the accused who possessed or owned the
same does not have the corresponding license for it.

In the instant case, the prosecution proved beyond reasonable doubt the elements of the crime. The existence of the subject
firearms and the ammunition were established through the testimony of Acierto. Their existence was likewise admitted by
petitioner when he entered into stipulation and through his subsequent judicial admission. Concerning petitioners lack of authority
to possess the firearms, SPO4 Bondoc, Jr. testified that upon verification, it was ascertained that the name of petitioner does not
appear in the list of registered firearm holders or a registered owner thereof. As proof, he submitted a certification to that effect and
identified the same in court. The testimony of SPO4 Bondoc, Jr. or the certification from the FEO would suffice to prove beyond
reasonable doubt the second element.[35]
A final point. Republic Act (RA) No. 8294[36] took effect on June 6, 1997 or after the commission of the crime on January 30,
1996. However, since it is advantageous to the petitioner, it should be given retrospective application insofar as the penalty is
concerned.

Section 1 of PD 1866, as amended by RA 8294 provides:

Section 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition or
Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition. x x x
The penalty of prision mayor in its minimum period and a fine of Thirty thousand pesos (P30,000.00) shall be
imposed if the firearm is classified as high powered firearm which includes those with bores bigger in diameter
than .38 caliber and 9 millimeter such as caliber .40, .41, .44, .45 and also lesser calibered firearms but
considered powerful such as caliber .357 and caliber .22 center-fire magnum and other firearms with firing

capability of full automatic and by burst of two or three: Provided, however, That no other crime was
committed by the person arrested.
Prision mayor in its minimum period ranges from six years and one day to eight years. Hence, the penalty imposed by the RTC as
affirmed by the CA is proper.

WHEREFORE, the petition is DENIED. The assailed Decision of the Court of Appeals in CA-G.R. CR No. 21805 affirming the
January 23, 1998 Decision of the Regional Trial Court of Pasay City, Branch 109 dated January 23, 1998, convicting petitioner
Teofilo Evangelista of violation of Section 1 of Presidential Decree No. 1866, as amended, and sentencing him to suffer the penalty
of imprisonment of six years and one day to eight years and to pay a fine of P30,000.00 is AFFIRMED.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 190889

January 10, 2011

ELENITA C. FAJARDO, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
NACHURA, J.:
At bar is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, seeking the reversal of the February
10, 2009 Decision1 of the Court of Appeals (CA), which affirmed with modification the August 29, 2006 decision2 of
the Regional Trial Court (RTC), Branch 5, Kalibo, Aklan, finding petitioner guilty of violating Presidential Decree (P.D.)
No. 1866, as amended.
The facts:
Petitioner, Elenita Fajardo, and one Zaldy Valerio (Valerio) were charged with violation of P.D. No. 1866, as amended,
before the RTC, Branch 5, Kalibo, Aklan, committed as follows:
That on or about the 28th day of August, 2002, in the morning, in Barangay Andagao, Municipality of Kalibo, Province
of Aklan, Republic of the Philippines, and within the jurisdiction of this Honorable Court, the above-named accused,
conspiring, confederating and mutually helping one another, without authority of law, permit or license, did then and
there, knowingly, willfully, unlawfully and feloniously have in their possession, custody and control two (2) receivers of
caliber .45 pistol, [M]odel [No.] M1911A1 US with SN 763025 and Model [No.] M1911A1 US with defaced serial
number, two (2) pieces short magazine of M16 Armalite rifle, thirty-five (35) pieces live M16 ammunition 5.56 caliber
and fourteen (14) pieces live caliber .45 ammunition, which items were confiscated and recovered from their
possession during a search conducted by members of the Provincial Intelligence Special Operation Group, Aklan
Police Provincial Office, Kalibo, Aklan, by virtue of Search Warrant No. 01 (9) 03 issued by OIC Executive Judge
Dean Telan of the Regional Trial Court of Aklan.3
When arraigned on March 25, 2004, both pleaded not guilty to the offense charged.4 During pre-trial, they agreed to
the following stipulation of facts:
1. The search warrant subject of this case exists;
2. Accused Elenita Fajardo is the same person subject of the search warrant in this case who is a resident of
Sampaguita Road, Park Homes, Andagao, Kalibo, Aklan;
3. Accused Zaldy Valerio was in the house of Elenita Fajardo in the evening of August 27, 2002 but does not
live therein;
4. Both accused were not duly licensed firearm holders;
5. The search warrant was served in the house of accused Elenita Fajardo in the morning of August 28,
2002; and
6. The accused Elenita Fajardo and Valerio were not arrested immediately upon the arrival of the military
personnel despite the fact that the latter allegedly saw them in possession of a firearm in the evening of
August 27, 2002.5

As culled from the similar factual findings of the RTC and the CA,6 these are the chain of events that led to the filing
of the information:
In the evening of August 27, 2002, members of the Provincial Intelligence Special Operations Group (PISOG) were
instructed by Provincial Director Police Superintendent Edgardo Mendoza (P/Supt. Mendoza) to respond to the
complaint of concerned citizens residing on Ilang-Ilang and Sampaguita Roads, Park Homes III Subdivision,
Barangay Andagao, Kalibo, Aklan, that armed men drinking liquor at the residence of petitioner were indiscriminately
firing guns.
Along with the members of the Aklan Police Provincial Office, the elements of the PISOG proceeded to the area.
Upon arrival thereat, they noticed that several persons scampered and ran in different directions. The responding
team saw Valerio holding two .45 caliber pistols. He fired shots at the policemen before entering the house of
petitioner.
Petitioner was seen tucking a .45 caliber handgun between her waist and the waistband of her shorts, after which,
she entered the house and locked the main door.
To prevent any violent commotion, the policemen desisted from entering petitioners house but, in order to deter
Valerio from evading apprehension, they cordoned the perimeter of the house as they waited for further instructions
from P/Supt. Mendoza. A few minutes later, petitioner went out of the house and negotiated for the pull-out of the
police troops. No agreement materialized.
At around 2:00 a.m. and 4:00 a.m. of August 28, 2002, Senior Police Officer 2 Clemencio Nava (SPO2 Nava), who
was posted at the back portion of the house, saw Valerio emerge twice on top of the house and throw something. The
discarded objects landed near the wall of petitioners house and inside the compound of a neighboring residence.
SPO2 Nava, together with SPO1 Teodoro Neron and Jerome T. Vega (Vega), radio announcer/reporter of RMN
DYKR, as witness, recovered the discarded objects, which turned out to be two (2) receivers of .45 caliber pistol,
model no. M1911A1 US, with serial number (SN) 763025, and model no. M1911A1 US, with a defaced serial number.
The recovered items were then surrendered to SPO1 Nathaniel A. Tan (SPO1 Tan), Group Investigator, who utilized
them in applying for and obtaining a search warrant.
The warrant was served on petitioner at 9:30 a.m. Together with a barangay captain, barangay kagawad, and
members of the media, as witnesses, the police team proceeded to search petitioners house. The team found and
was able to confiscate the following:
1. Two (2) pieces of Short Magazine of M16 Armalite Rifle;
2. Thirty five (35) pieces of live M16 ammos 5.56 Caliber; and
3. Fourteen (14) pieces of live ammos of Caliber 45 pistol.
Since petitioner and Valerio failed to present any documents showing their authority to possess the confiscated
firearms and the two recovered receivers, a criminal information for violation of P.D. No. 1866, as amended by
Republic Act (R.A.) No. 8294, was filed against them.
For their exoneration, petitioner and Valerio argued that the issuance of the search warrant was defective because
the allegation contained in the application filed and signed by SPO1 Tan was not based on his personal knowledge.
They quoted this pertinent portion of the application:
That this application was founded on confidential information received by the Provincial Director, Police Supt.
Edgardo Mendoza.7
They further asserted that the execution of the search warrant was infirm since petitioner, who was inside the house
at the time of the search, was not asked to accompany the policemen as they explored the place, but was instead
ordered to remain in the living room (sala).

Petitioner disowned the confiscated items. She refused to sign the inventory/receipt prepared by the raiding team,
because the items allegedly belonged to her brother, Benito Fajardo, a staff sergeant of the Philippine Army.
Petitioner denied that she had a .45 caliber pistol tucked in her waistband when the raiding team arrived. She averred
that such situation was implausible because she was wearing garterized shorts and a spaghetti-strapped hanging
blouse.8
Ruling of the RTC
The RTC rejected the defenses advanced by accused, holding that the same were already denied in the Orders
dated December 31, 2002 and April 20, 2005, respectively denying the Motion to Quash Search Warrant and
Demurrer to Evidence. The said Orders were not appealed and have thus attained finality. The RTC also ruled that
petitioner and Valerio were estopped from assailing the legality of their arrest since they participated in the trial by
presenting evidence for their defense. Likewise, by applying for bail, they have effectively waived such irregularities
and defects.
In finding the accused liable for illegal possession of firearms, the RTC explained:
Zaldy Valerio, the bodyguard of Elenita Fajardo, is a former soldier, having served with the Philippine Army prior to his
separation from his service for going on absence without leave (AWOL). With his military background, it is safe to
conclude that Zaldy Valerio is familiar with and knowledgeable about different types of firearms and ammunitions. As
a former soldier, undoubtedly, he can assemble and disassemble firearms.
It must not be de-emphasize[d] that the residence of Elenita Fajardo is definitely not an armory or arsenal which are
the usual depositories for firearms, explosives and ammunition. Granting arguendo that those firearms and
ammunition were left behind by Benito Fajardo, a member of the Philippine army, the fact remains that it is a
government property. If it is so, the residence of Elenita Fajardo is not the proper place to store those items. The
logical explanation is that those items are stolen property.
xxxx
The rule is that ownership is not an essential element of illegal possession of firearms and ammunition. What the law
requires is merely possession which includes not only actual physical possession but also constructive possession or
the subjection of the thing to ones control and management. This has to be so if the manifest intent of the law is to be
effective. The same evils, the same perils to public security, which the law penalizes exist whether the unlicensed
holder of a prohibited weapon be its owner or a borrower. To accomplish the object of this law[,] the proprietary
concept of the possession can have no bearing whatsoever.
xxxx
x x x. [I]n order that one may be found guilty of a violation of the decree, it is sufficient that the accused had no
authority or license to possess a firearm, and that he intended to possess the same, even if such possession was
made in good faith and without criminal intent.
xxxx
To convict an accused for illegal possession of firearms and explosive under P.D. 1866, as amended, two (2)
essential elements must be indubitably established, viz.: (a) the existence of the subject firearm ammunition or
explosive which may be proved by the presentation of the subject firearm or explosive or by the testimony of
witnesses who saw accused in possession of the same, and (b) the negative fact that the accused has no license or
permit to own or possess the firearm, ammunition or explosive which fact may be established by the testimony or
certification of a representative of the PNP Firearms and Explosives Unit that the accused has no license or permit to
possess the subject firearm or explosive (Exhibit G).
The judicial admission of the accused that they do not have permit or license on the two (2) receivers of caliber .45
pistol, model M1911A1 US with SN 763025 and model M1911A1 of M16 Armalite rifle, thirty-five (35) pieces live M16
ammunition, 5.56 caliber and fourteen (14) pieces live caliber .45 ammunition confiscated and recovered from their

possession during the search conducted by members of the PISOG, Aklan Police Provincial Office by virtue of
Search Warrant No. 01 (9) 03 fall under Section 4 of Rule 129 of the Revised Rules of Court.9
Consequently, petitioner and Valerio were convicted of illegal possession of firearms and explosives, punishable
under paragraph 2, Section 1 of P.D. No. 1866, as amended by R.A. No. 8294, which provides:
The penalty of prision mayor in its minimum period and a fine of Thirty thousand pesos (P30,000.00) shall be
imposed if the firearm is classified as high powered firearm which includes those with bores bigger in diameter than .
38 caliber and 9 millimeter such as caliber .40, .41, .44, .45 and also lesser calibered firearms but considered
powerful such as caliber .357 and caliber .22 center-fire magnum and other firearms with firing capability of full
automatic and by burst of two or three: Provided, however, That no other crime was committed by the person
arrested.
Both were sentenced to suffer the penalty of imprisonment of six (6) years and one (1) day to twelve (12) years of
prision mayor, and to pay a fine of P30,000.00.
On September 1, 2006, only petitioner filed a Motion for Reconsideration, which was denied in an Order dated
October 25, 2006. Petitioner then filed a Notice of Appeal with the CA.
Ruling of the CA
The CA concurred with the factual findings of the RTC, but disagreed with its conclusions of law, and held that the
search warrant was void based on the following observations:
[A]t the time of applying for a search warrant, SPO1 Nathaniel A. Tan did not have personal knowledge of the fact that
appellants had no license to possess firearms as required by law. For one, he failed to make a categorical statement
on that point during the application. Also, he failed to attach to the application a certification to that effect from the
Firearms and Explosives Office of the Philippine National Police. x x x, this certification is the best evidence
obtainable to prove that appellant indeed has no license or permit to possess a firearm. There was also no
explanation given why said certification was not presented, or even deemed no longer necessary, during the
application for the warrant. Such vital evidence was simply ignored.10
Resultantly, all firearms and explosives seized inside petitioners residence were declared inadmissible in evidence.
However, the 2 receivers recovered by the policemen outside the house of petitioner before the warrant was served
were admitted as evidence, pursuant to the plain view doctrine.
Accordingly, petitioner and Valerio were convicted of illegal possession of a part of a firearm, punishable under
paragraph 1, Section 1 of P.D. No. 1866, as amended. They were sentenced to an indeterminate penalty of three (3)
years, six (6) months, and twenty-one (21) days to five (5) years, four (4) months, and twenty (20) days of prision
correccional, and ordered to pay a P20,000.00 fine.
Petitioner moved for reconsideration,11 but the motion was denied in the CA Resolution dated December 3,
2009.12 Hence, the present recourse.
At the onset, it must be emphasized that the information filed against petitioner and Valerio charged duplicitous
offenses contrary to Section 13 of Rule 110 of the Rules of Criminal Procedure, viz.:
Sec. 13. Duplicity of offense. A complaint or information must charge but one offense, except only in those cases in
which existing laws prescribe a single punishment for various offenses.
A reading of the information clearly shows that possession of the enumerated articles confiscated from Valerio and
petitioner are punishable under separate provisions of Section 1, P.D. No. 1866, as amended by R.A. No.
8294.13 Illegal possession of two (2) pieces of short magazine of M16 Armalite rifle, thirty-five (35) pieces of live M16
ammunition 5.56 caliber, and fourteen (14) pieces of live caliber .45 ammunition is punishable under paragraph 2 of
the said section, viz.:

The penalty of prision mayor in its minimum period and a fine of Thirty thousand pesos (P30,000.00) shall be
imposed if the firearm is classified as high powered firearm which includes those with bores bigger in diameter than .
38 caliber and 9 millimeter such as caliber .40, 41, .44, .45 and also lesser calibered firearms but considered powerful
such as caliber .357 and caliber .22 center-fire magnum and other firearms with firing capability of full automatic and
by burst of two or three: Provided, however, That no other crime was committed by the person arrested.14
On the other hand, illegal possession of the two (2) receivers of a .45 caliber pistol, model no. M1911A1 US, with SN
763025, and Model M1911A1 US, with a defaced serial number, is penalized under paragraph 1, which states:
Sec. 1. Unlawful manufacture, sale, acquisition, disposition or possession of firearms or ammunition or instruments
used or intended to be used in the manufacture of firearms or ammunition. The penalty of prision correccional in its
maximum period and a fine of not less than Fifteen thousand pesos (P15,000.00) shall be imposed upon any person
who shall unlawfully manufacture, deal in, acquire, dispose, or possess any low powered firearm, such as rimfire
handgun, .380 or .32 and other firearm of similar firepower, part of firearm, ammunition, or machinery, tool or
instrument used or intended to be used in the manufacture of any firearm or ammunition: Provided, That no other
crime was committed.15
This is the necessary consequence of the amendment introduced by R.A. No. 8294, which categorized the kinds of
firearms proscribed from being possessed without a license, according to their firing power and caliber. R.A. No. 8294
likewise mandated different penalties for illegal possession of firearm according to the above classification, unlike in
the old P.D. No. 1866 which set a standard penalty for the illegal possession of any kind of firearm. Section 1 of the
old law reads:
Section 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition or
Instruments Used or Intended to be Used in the Manufacture of Firearms of Ammunition. The penalty of reclusion
temporal in its maximum period to reclusion perpetua shall be imposed upon any person who shall unlawfully
manufacture, deal in, acquire dispose, or possess any firearms, part of firearm, ammunition, or machinery, tool or
instrument used or intended to be used in the manufacture of any firearm or ammunition. (Emphasis ours.)
By virtue of such changes, an information for illegal possession of firearm should now particularly refer to the
paragraph of Section 1 under which the seized firearm is classified, and should there be numerous guns confiscated,
each must be sorted and then grouped according to the categories stated in Section 1 of R.A. No. 8294, amending
P.D. No. 1866. It will no longer suffice to lump all of the seized firearms in one information, and state Section 1, P.D.
No. 1866 as the violated provision, as in the instant case,16 because different penalties are imposed by the law,
depending on the caliber of the weapon. To do so would result in duplicitous charges.
Ordinarily, an information that charges multiple offenses merits a quashal, but petitioner and Valerio failed to raise this
issue during arraignment. Their failure constitutes a waiver, and they could be convicted of as many offenses as there
were charged in the information.17 This accords propriety to the diverse convictions handed down by the courts a quo.
Further, the charge of illegal possession of firearms and ammunition under paragraph 2, Section 1 of P.D. No. 1866,
as amended by R.A. No. 8294, including the validity of the search warrant that led to their confiscation, is now beyond
the province of our review since, by virtue of the CAs Decision, petitioner and Valerio have been effectively acquitted
from the said charges. The present review is consequently only with regard to the conviction for illegal possession of
a part of a firearm.
The Issues
Petitioner insists on an acquittal and avers that the discovery of the two (2) receivers does not come within the
purview of the plain view doctrine. She argues that no valid intrusion was attendant and that no evidence was
adduced to prove that she was with Valerio when he threw the receivers. Likewise absent is a positive showing that
any of the two receivers recovered by the policemen matched the .45 caliber pistol allegedly seen tucked in the
waistband of her shorts when the police elements arrived. Neither is there any proof that petitioner had knowledge of
or consented to the alleged throwing of the receivers.
Our Ruling
We find merit in the petition.

First, we rule on the admissibility of the receivers. We hold that the receivers were seized in plain view, hence,
admissible.
No less than our Constitution recognizes the right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures. This right is encapsulated in Article III, Section 2, of the
Constitution, which states:
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.
Complementing this provision is the exclusionary rule embodied in Section 3(2) of the same article
(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any
proceeding.
There are, however, several well-recognized exceptions to the foregoing rule. Thus, evidence obtained through a
warrantless search and seizure may be admissible under any of the following circumstances: (1) search incident to a
lawful arrest; (2) search of a moving motor vehicle; (3) search in violation of custom laws; (4) seizure of evidence in
plain view; and (5) when the accused himself waives his right against unreasonable searches and seizures.18
Under the plain view doctrine, objects falling in the "plain view" of an officer, who has a right to be in the position to
have that view, are subject to seizure and may be presented as evidence.19 It applies when the following requisites
concur: (a) the law enforcement officer in search of the evidence has a prior justification for an intrusion or is in a
position from which he can view a particular area; (b) the discovery of the evidence in plain view is inadvertent; and
(c) it is immediately apparent to the officer that the item he observes may be evidence of a crime, contraband, or
otherwise subject to seizure. The law enforcement officer must lawfully make an initial intrusion or properly be in a
position from which he can particularly view the area. In the course of such lawful intrusion, he came inadvertently
across a piece of evidence incriminating the accused. The object must be open to eye and hand, and its discovery
inadvertent.20
Tested against these standards, we find that the seizure of the two receivers of the .45 caliber pistol outside
petitioners house falls within the purview of the plain view doctrine.
First, the presence of SPO2 Nava at the back of the house and of the other law enforcers around the premises was
justified by the fact that petitioner and Valerio were earlier seen respectively holding .45 caliber pistols before they ran
inside the structure and sought refuge. The attendant circumstances and the evasive actions of petitioner and Valerio
when the law enforcers arrived engendered a reasonable ground for the latter to believe that a crime was being
committed. There was thus sufficient probable cause for the policemen to cordon off the house as they waited for
daybreak to apply for a search warrant.
Secondly, from where he was situated, SPO2 Nava clearly saw, on two different instances, Valerio emerge on top of
the subject dwelling and throw suspicious objects. Lastly, considering the earlier sighting of Valerio holding a pistol,
SPO2 Nava had reasonable ground to believe that the things thrown might be contraband items, or evidence of the
offense they were then suspected of committing. Indeed, when subsequently recovered, they turned out to be two (2)
receivers of .45 caliber pistol.
The pertinent portions of SPO2 Navas testimony are elucidating:
Q When you arrived in that place, you saw policemen?
A Yes, sir.
Q What were they doing?

A They were cordoning the house.

Q You said that you asked your assistant team leader Deluso about that incident. What did he tell you?
A Deluso told me that a person ran inside the house carrying with him a gun.
Q And this house you are referring to is the house which you mentioned is the police officers were
surrounding?
A Yes, sir.
Q Now, how long did you stay in that place, Mr. Witness?
A I stayed there when I arrived at past 10:00 oclock up to 12:00 oclock the following day.
Q At about 2:00 oclock in the early morning of August 28, 2002, can you recall where were you?
A Yes, sir.
Q Where were you?
A I was at the back of the house that is being cordoned by the police.
Q While you were at the back of this house, do you recall any unusual incident?
A Yes, sir.
Q Can you tell the Honorable Court what was that incident?
A Yes, sir. A person went out at the top of the house and threw something.
Q And did you see the person who threw something out of this house?
A Yes, sir.
xxxx
Q Can you tell the Honorable Court who was that person who threw that something outside the house?
A It was Zaldy Valerio.
COURT: (to witness)
Q Before the incident, you know this person Zaldy Valerio?
A Yes, sir.
Q Why do you know him?
A Because we were formerly members of the Armed Forces of the Philippines.
xxxx

PROS. PERALTA:
Q When you saw something thrown out at the top of the house, did you do something if any?
A I shouted to seek cover.
xxxx
Q So, what else did you do if any after you shouted, "take cover?"
A I took hold of a flashlight after five minutes and focused the beam of the flashlight on the place where
something was thrown.
Q What did you see if any?
A I saw there the lower [part] of the receiver of cal. 45.
xxxx
Q Mr. Witness, at around 4:00 oclock that early morning of August 28, 2002, do you recall another unusual
incident?
A Yes, sir.
Q And can you tell us what was that incident?
A I saw a person throwing something there and the one that was thrown fell on top of the roof of another
house.
Q And you saw that person who again threw something from the rooftop of the house?
A Yes, sir.
Q Did you recognize him?
A Yes, sir.
Q Who was that person?
A Zaldy Valerio again.
xxxx
Q Where were you when you saw this Zaldy Valerio thr[o]w something out of the house?
A I was on the road in front of the house.
Q Where was Zaldy Valerio when you saw him thr[o]w something out of the house?
A He was on top of the house.
xxxx

Q Later on, were you able to know what was that something thrown out?
A Yes, sir.
Q What was that?
A Another lower receiver of a cal. 45.
xxxx
Q And what did he tell you?
A It [was] on the wall of another house and it [could] be seen right away.
xxxx
Q What did you do if any?
A We waited for the owner of the house to wake up.
xxxx
Q Who opened the fence for you?
A It was a lady who is the owner of the house.
Q When you entered the premises of the house of the lady, what did you find?
A We saw the lower receiver of this .45 cal. (sic)21
The ensuing recovery of the receivers may have been deliberate; nonetheless, their initial discovery was indubitably
inadvertent. It is not crucial that at initial sighting the seized contraband be identified and known to be so. The law
merely requires that the law enforcer observes that the seized item may be evidence of a crime, contraband, or
otherwise subject to seizure.
Hence, as correctly declared by the CA, the two receivers were admissible as evidence. The liability for their
possession, however, should fall only on Valerio and not on petitioner.1avvphil
The foregoing disquisition notwithstanding, we find that petitioner is not liable for illegal possession of part of a
firearm.
In dissecting how and when liability for illegal possession of firearms attaches, the following disquisitions in People v.
De Gracia22 are instructive:
The rule is that ownership is not an essential element of illegal possession of firearms and ammunition. What the law
requires is merely possession which includes not only actual physical possession but also constructive possession or
the subjection of the thing to one's control and management. This has to be so if the manifest intent of the law is to be
effective. The same evils, the same perils to public security, which the law penalizes exist whether the unlicensed
holder of a prohibited weapon be its owner or a borrower. To accomplish the object of this law the proprietary concept
of the possession can have no bearing whatsoever.
But is the mere fact of physical or constructive possession sufficient to convict a person for unlawful possession of
firearms or must there be an intent to possess to constitute a violation of the law? This query assumes significance
since the offense of illegal possession of firearms is a malum prohibitum punished by a special law, in which case
good faith and absence of criminal intent are not valid defenses.

When the crime is punished by a special law, as a rule, intent to commit the crime is not necessary. It is sufficient that
the offender has the intent to perpetrate the act prohibited by the special law. Intent to commit the crime and intent to
perpetrate the act must be distinguished. A person may not have consciously intended to commit a crime; but he did
intend to commit an act, and that act is, by the very nature of things, the crime itself. In the first (intent to commit the
crime), there must be criminal intent; in the second (intent to perpetrate the act) it is enough that the prohibited act is
done freely and consciously.
In the present case, a distinction should be made between criminal intent and intent to possess. While mere
possession, without criminal intent, is sufficient to convict a person for illegal possession of a firearm, it must still be
shown that there was animus possidendi or an intent to possess on the part of the accused. Such intent to possess
is, however, without regard to any other criminal or felonious intent which the accused may have harbored in
possessing the firearm. Criminal intent here refers to the intention of the accused to commit an offense with the use
of an unlicensed firearm. This is not important in convicting a person under Presidential Decree No. 1866. Hence, in
order that one may be found guilty of a violation of the decree, it is sufficient that the accused had no authority or
license to possess a firearm, and that he intended to possess the same, even if such possession was made in good
faith and without criminal intent.
Concomitantly, a temporary, incidental, casual, or harmless possession or control of a firearm cannot be considered a
violation of a statute prohibiting the possession of this kind of weapon, such as Presidential Decree No. 1866. Thus,
although there is physical or constructive possession, for as long as the animus possidendi is absent, there is no
offense committed.23
Certainly, illegal possession of firearms, or, in this case, part of a firearm, is committed when the holder thereof:
(1) possesses a firearm or a part thereof
(2) lacks the authority or license to possess the firearm.24
We find that petitioner was neither in physical nor constructive possession of the subject receivers. The testimony of
SPO2 Nava clearly bared that he only saw Valerio on top of the house when the receivers were thrown. None of the
witnesses saw petitioner holding the receivers, before or during their disposal.
At the very least, petitioners possession of the receivers was merely incidental because Valerio, the one in actual
physical possession, was seen at the rooftop of petitioners house. Absent any evidence pointing to petitioners
participation, knowledge or consent in Valerios actions, she cannot be held liable for illegal possession of the
receivers.
Petitioners apparent liability for illegal possession of part of a firearm can only proceed from the assumption that one
of the thrown receivers matches the gun seen tucked in the waistband of her shorts earlier that night. Unfortunately,
the prosecution failed to convert such assumption into concrete evidence.
Mere speculations and probabilities cannot substitute for proof required to establish the guilt of an accused beyond
reasonable doubt. The rule is the same whether the offenses are punishable under the Revised Penal Code, which
are mala in se, or in crimes, which are malum prohibitum by virtue of special law.25 The quantum of proof required by
law was not adequately met in this case in so far as petitioner is concerned.
The gun allegedly seen tucked in petitioners waistband was not identified with sufficient particularity; as such, it is
impossible to match the same with any of the seized receivers. Moreover, SPO1 Tan categorically stated that he saw
Valerio holding two guns when he and the rest of the PISOG arrived in petitioners house. It is not unlikely then that
the receivers later on discarded were components of the two (2) pistols seen with Valerio.
These findings also debunk the allegation in the information that petitioner conspired with Valerio in committing illegal
possession of part of a firearm. There is no evidence indubitably proving that petitioner participated in the decision to
commit the criminal act committed by Valerio.
Hence, this Court is constrained to acquit petitioner on the ground of reasonable doubt. The constitutional
presumption of innocence in her favor was not adequately overcome by the evidence adduced by the prosecution.

The CA correctly convicted Valerio with illegal possession of part of a firearm.

In illegal possession of a firearm, two (2) things must be shown to exist: (a) the existence of the subject firearm; and
(b) the fact that the accused who possessed the same does not have the corresponding license for it.26
By analogy then, a successful conviction for illegal possession of part of a firearm must yield these requisites:
(a) the existence of the part of the firearm; and
(b) the accused who possessed the same does not have the license for the firearm to which the seized
part/component corresponds.
In the instant case, the prosecution proved beyond reasonable doubt the
elements of the crime. The subject receivers - one with the markings "United States Property" and the other bearing
Serial No. 763025 - were duly presented to the court as Exhibits E and E-1, respectively. They were also identified by
SPO2 Nava as the firearm parts he retrieved af ter Valerio discarded them.27 His testimony was corroborated by
DYKR radio announcer Vega, who witnessed the recovery of the receivers.28
Anent the lack of authority, SPO1 Tan testified that, upon verification, it was ascertained that Valerio is not a duly
licensed/registered firearm holder of any type, kind, or caliber of firearms.29 To substantiate his statement, he
submitted a certification30 to that effect and identified the same in court.31 The testimony of SPO1 Tan, or the
certification, would suffice to prove beyond reasonable doubt the second element.32
WHEREFORE, premises considered, the February 10, 2009 Decision of the Court of Appeals is hereby REVERSED
with respect to petitioner Elenita Fajardo y Castro, who is hereby ACQUITTED on the ground that her guilt was not
proved beyond reasonable doubt.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION

G.R. No. 95523 August 18, 1997

REYNALDO GONZALES y RIVERA, petitioner,
vs.
HONORABLE COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.

ROMERO, J.:
The new law, Republic Act No. 8294, 1 approved barely two months ago (June 6, 1997) which has lowered the penalty
for illegal possession of firearms finds application in instant case to favor the accused so as to immediately release
him from jail where he has already served nine (9) years, nine (9) months and twenty-three (23) days, which is well
beyond the maximum penalty now imposed for his offense. Whereas prior to the passage of this law, the crime of
simple illegal possession of firearms was penalized with reclusion temporal in its maximum period to reclusion
perpetua, 2 after its enactment, the penalty has been reduced to prision correccional in its maximum period and a fine
of not less than Fifteen Thousand Pesos (P15,000.00). 3
Being favorable to the accused, this newly-enacted law constitutes an exception to the fundamental doctrine that laws
should be applied prospectively. Further applying the Indetermine Sentence Law, petitioner should be penalized with
four (4) years, two (2) months and one (1) day as minimum, to six (6) years as maximum. Petitioner, therefore, holds
the "distinction" of being the first beneficiary of this reduced penalty to favor him with its retroactive application.
The following recital of facts constitutes the backdrop for the application of the new law.
Two separate informations were field against petitioner Reynaldo Gonzales y Rivera involving the crimes of
attempted homicide and violation of Presidential Decree No. 1866.
The Information for Attempted Homicide reads as follows:
The undersigned Provincial Fiscal accuses Reynaldo Gonzales y Rivera of the crime of attempted
homicide, penalized under the provisions of Article 249 in connection with Article 51 of the Revised
Penal Code, committed as follows:
That on or about the 20th day of May, 1984, in the municipality of San Ildefonso, province of
Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused,
armed with a gun (Revolver, Caliber .22, Paltik) and with intent to kill one Jaime Verde, did then
and there wilfully, unlawfully and feloniously commenced the commission of homicide directly by
overt acts, by then and there shooting with the said gun the said Jaime Verde, and if the said
accused did not accomplish his purpose, that is, to kill the said Jaime Verde, it was not because of
his spontaneous desistance, but the shot missed him and instead hit the ground.
Contrary to law.
The Information for violation of P.D. No. 1866 reads:
The undersigned Provincial Fiscal accuses Reynaldo Gonzales y Rivera of the crime of illegal
possession of firearm, penalized under Presidential Decree No. 1866, committed as follows:

That on or about the 20th day of May, 1984, in the municipality of San Ildefonso, province of
Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the said accused Reynaldo
Gonzales y Rivera, did then and there wilfully, unlawfully, and feloniously have in his possession
and control one (1) Revolver Caliber .22 (Paltik, without first obtaining the proper license or
authority therefor).
Contrary to law.
A plea of not guilty having been entered, trial on the merits ensued.
The case for the prosecution is as follows:
On May 20, 1984, Jaime, Dionisio, and Zenaida all surnamed Verde were in front of their house when, at about six
o'clock in the evening, petitioner Reynaldo Gonzales and a certain Bening Paguia arrived in the premises. Without
any provocation, petitioner started to hurl invectives at Zenaida and pushed her. Surprised at the unprovoked attack,
Jaime tried to restrain the petitioner but instead of allowing himself to be subdued, the latter turned on the former.
Pulling out his gun, he fired the same at Jaime but missed his mark. The incident was thereafter reported to the police
authorities which conducted a paraffin test that showed that petitioner's right hand was positive for gunpowder
residue.
On the other hand, the version of the defense was as follows:
Petitioner testified that on the said date and time, he was with his barrio mates when suddenly, a commotion attracted
their attention. They saw a group of persons chasing an unidentified person who was running towards their direction
with a gun in hand while the mob was shouting "Harangin." During the chase, the unidentified person accidentally fell
and dropped the gun he was holding which petitioner then grabbed.
The fleeing person hastily boarded a passing bus. It was at this point that the Verdes, who turned out to be the
persons giving chase, demanded the gun from the petitioner who, however, refused to surrender the same, as a
result of which, a scuffle ensued during which the gun accidentally went off without hitting anybody.
After trial, the court a quo acquitted the petitioner of the offense of attempted homicide but found him guilty of the
offense of illegal possession of firearm, the dispositive portion of which reads: 4
WHEREFORE, premises considered, for failure of the prosecution to prove the guilt of Reynaldo
Gonzales beyond reasonable doubt of the charge for Attempted Homicide, he is hereby acquitted
of the crime charged.
With respect to the charge of Illegal Possession of Firearms, the Court finds the accused guilty
beyond reasonable doubt and hereby sentences him to a penalty ranging from 17 years, 4 months,
1 day to 18 years, 8 months of Reclusion Temporal, without pronouncement as to costs.
Upon appeal to the Court of Appeals, the petitioner asserted that the trial court erred in not giving credence to the
defense's narration of the incident and his guilt has not been proven beyond reasonable doubt. This argument did not
persuade the appellate court as it held that: 5
Indeed, as correctly found by the trial court, the appellant did not grab the revolver (paltik) in
question (Exhibit A) from the identified person that he said. He drew it from his pocket and
intentionally fired it at Jaime Verde but missed him. He was, therefore, in possession of it. And
since it was a "paltik" for which no license to possess may be issued (People vs. Fajardo, 17 SCRA
494), he is guilty of illegal possession of firearm under Presidential Decree No. 1866. Accordingly,
the trial court did not commit any error in finding him guilty as charged.

In the instant petition, petitioner assigns the following errors to the trial court:
1. There is in this case material and substantial conflict between the version of the prosecution and
that of the defense that would lead a reasonable mind to believe the improbability of the version of
the prosecution.
2. Respondent Court of Appeals committed a grave and serious error of law in not finding/holding
that the prosecution miserably failed to establish the motive that would support the version of the
prosecution.
3. Petitioner was not aware of any preliminary investigation that would create any inference
adverse to his innocence.
4. The prosecution in this case failed to prove the guilt of the petitioner beyond reasonable doubt.
Hence, the latter is entitled to acquittal.
We affirm the findings of the trial court and the Court of Appeals.
The main thesis of petitioner's defense is that he inadvertently picked up the gun accidentally dropped by an
unidentified person who was being chased by the Verdes. Thus, he cannot be convicted for illegal possession of
firearm.
Completely contradicting petitioner's version, we quote with approval the trial court's finding: 6
The testimony that the gun came from the unarmed (should be unidentified) person who fell in front
of him while being chased is again hard to believe. The natural reaction of a person being chased
in a hostile place is to remove hindrances along his way. If he had a gun, as the accused would
want the court to believe, he could have used it against all persons who would block his way since
there were shouts "harangin, harangin." On the other hand, the actuation of the accused is contrary
to common observation and experience. No person in his right mind would approach a person
holding a gun being chased and there were shouts "harangin, harangin."
In addition, petitioner's narration is not in conformity with human experience and reactions. We likewise note the
incredible assertion of the petitioner that the unidentified person, after tripping and dropping the gun, was able to
board a "slow moving" but without even attempting to retrieve his weapon. Such a hollow tale hardly commends itself
to our mind.
Also, petitioner bewails the fact that no preliminary investigation was conducted. While the right to preliminary
investigation is one that is statutorily granted and not mandated by the Constitution, still it is a component part of due
process in criminal justice 7 that may not be treated lightly, let alone ignored. It has been consistently held, however,
that its absence does not impair the validity of the criminal information or render it defective. In any case, dismissal of
the case is not the remedy. 8 It is incumbent on the trial court to hold in abeyance the proceedings upon such
information and to remand the case to the fiscal to conduct a preliminary investigation if the accused actually makes
out a case justifying the same. 9
Conversely, it is a well-settled rule that the right to a preliminary investigation may be waived by the failure to invoke it
prior to or at least at the time of the accused's plea. 10 Thus, when the petitioner entered a plea to the charge, 11 he is
deemed to have waived the right to preliminary investigation. 12
Having set aside the procedural aspect of this petition, we now proceed to determine whether the petitioner is indeed
guilty of the offense of illegal possession of firearm.

In cases involving illegal possession of firearm, there are certain well-established principles, namely: (a) the existence
of the subject firearm and (b) the fact that the accused who owned or possessed the firearm does not have the
corresponding license or permit to possess. 13 The first requisite is beyond dispute as the subject firearm was
recovered, identified and offered in evidence during trial. 14 With respect to the second requisite, the same was
undisputably proven by the prosecution. The unvarying rule is that ownership is not an essential element of illegal
possession of firearms and ammunition. What the law requires is merely possession which includes, not only actual
physical possession, but also constructive possession or the subjection of the thing to one's control and
management. 15
In the instant petition, there is no doubt that the petitioner is indeed guilty of having intentionally possessed an
unlicensed firearm. The testimony of the petitioner that he came into possession of the firearm only after a scuffle, is
a lame defense which cannot overcome the solid evidence presented by the prosecution proving his guilt beyond
reasonable doubt. On this score, we note that a prosecution witness testified that petitioner pulled the gun from his
waist and fired a shot aimed at Jaime Verde's foot. 16
Thus, we have no reservations in affirming petitioner's conviction since we find no compelling reason to depart from
the actual findings of both the trial court and the respondent appellate court which are, as a rule, accorded great
respect and finality. 17
As regards the penalty imposed by the trial court and affirmed by the appellate court (17 years, 4 months, 1 day to 18
years, 8 months of reclusion temporal), we reduce the same in view of the passage of R.A. No. 8294 wherein the
penalty for simple illegal possession of firearms has been lowered. Since it is an elementary rule in criminal
jurisprudence that penal laws shall be given retroactive effect when favorable to the accused, 18 we are now
mandated to apply the new law in determining the proper penalty to be imposed on the petitioner.
While prior to the passage of R.A. No. 8294, the crime of simple illegal possession of firearm was penalized
with reclusion temporal in its maximum period to reclusion perpetua, after its enactment, the penalty was reduced
to prision correccional in its maximum period and a fine of not less than Fifteen Thousand Pesos (P15,000.00).
Accordingly, applying the Intermediate Sentence Law, the principal penalty for the offense of simple illegal possession
of firearm is four (4) years and two (2) months as minimum, to six (6) years, as maximum 19 and a fine of P15,000.00.
Consistent with the doctrine that an appeal in a criminal case throws the whole case open for review, the appellate
court may, applying the new law, additionally impose a fine, which if unpaid, will subject the convict to subsidiary
imprisonment, pursuant to Art. 39 of the Revised Penal Code. 20
WHEREFORE, the decision of the Court of Appeals sustaining petitioner's conviction by the lower court of the crime
of simple illegal possession of firearm is AFFIRMED, with the MODIFICATION that the penalty is reduced to "four (4)
years and two (2) months, as minimum, to six (6) years, as maximum."
Since the petitioner has already serve nine (9) years, nine (9) months and twenty-three (23) days, which is well
beyond the maximum principal penalty imposed for his offense, as well as the subsidiary penalty for the unpaid fine,
he is hereby ordered RELEASED immediately, unless he is being held for some other lawful cause.
SO ORDERED.
Regalado, Puno, Mendoza and Torres, Jr., JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 192727

January 9, 2013

RAUL B. ESCALANTE, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES and THEHONORABLECOURTOF APPEALS, FORMER SPECIAL TWENTIETH
DIVISION and EIGHTEENTH DIVISION, COURT OF APPEALS, CEBU CITY, Respondents.
RESOLUTION
REYES, J.:
Nature of the Petition
Before this Court is a Petition for Certiorari under Rule 65 of the Rules of Court seeking to annul and set aside the
Decision1 dated June 24, 2008 and Resolution2 dated March 4, 2009 issued by the Court of Appeals (CA) in CA-G.R.
CR No. 27673 which, inter alia, affirmed the conviction of Raul B. Escalante (petitioner) for violation of Section 261
(q) of Batas Pambansa Blg. 881 (BP 881), otherwise known as the "Omnibus Election Code of the Philippines".
The Antecedent Facts
The instant case stemmed from two (2) separate Informations that were filed with the Regional Trial Court (RTC) of
Calbayog City, Samar against the petitioner, charging him for violation of Section 261 (q) of BP 881 (Election Gun
Ban) and Section 1 of Presidential Decree (P.D.) No.
1866,3 as amended (Illegal Possession of Firearms and Ammunitions). The first Information4 dated August 23, 1995,
docketed as Criminal Case No. 2074, reads:
The undersigned Prosecutor II of Samar accuses MAYOR RAUL ESCALANTE for VIOLATION OF SECTION 261,
PARAGRAPH (Q) OF THE OMNIBUS ELECTION CODE, AS AMENDED BY SECTION 32, REPUBLIC ACT 7166,
committed as follows:
That on or about the 3rd day of April, 1995, at about 11:00 oclock in the evening, at Barangay Biasong, Municipality
of Almagro, Province of Samar, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, during the Election Period of the May 8, 1995 Election, did then and there wilfully, unlawfully and feloniously
have in his possession, custody and control one (1) .45 caliber pistol, without first having obtained the proper license
and/or permit from the Comelec.
CONTRARY TO LAW.5
The second Information6 dated June 16, 2000, docketed as Criminal Case No. 3824, reads:
The undersigned Assistant Provincial Prosecutor I of Samar accuses Raul Escalante for Illegal Possession of Firearm
(P.D. 1866), as amended by Republic Act No. 8294, committed as follows:

That on or about the 3rd day of April, 1995, at nighttime, at Barangay Biasong, Municipality of Almagro, Province of
Samar, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with deliberate
intent to possess and without being authorized by law, did then and there wilfully, unlawfully, feloniously and illegally
have in his possession, custody and control one (1) caliber .45 pistol loaded with live ammunition, in a public place
outside of his residence, without first securing the necessary permit to possess the same from the competent
authority, as required by law.
CONTRARY TO LAW.7
The two cases were consolidated and jointly tried by the RTC as the crimes charged against the petitioner arose from
the same incident. Upon arraignment, the petitioner pleaded not guilty to both charges.8
During the pre-trial conference, the petitioner admitted the following facts: first, that he was not issued any license to
possess any firearm; and second, that April 3, 1995 fell within the election gun ban period imposed by the
Commission on Elections (COMELEC).9
Trial on the merits ensued thereafter.
The Prosecutions Version
The petitioner, then the Municipal Mayor of Almagro, Samar, was the guest of honor during the fiesta celebration in
Barangay Biasong that was held on April 3, 1995. Towards the end of the program, the emcee called on the petitioner
and Ina Rebuya to crown the fiesta queen. Thereupon, the petitioner went to fetch Ina Rebuya who was seated
together with Atty. Felipe Maglana, Jr. (Atty. Maglana) and the other members of the rival political party. It was then
that Atty. Maglana noticed that the petitioner had a firearm tucked on his waist.10
After the crowning ceremony, the petitioner delivered a speech, stating that he had never won at Barangay Biasong in
any election. This caught the ire of a group of supporters of the rival political party who then shouted invectives at the
petitioner.11
Shamed by the insults hurled at him, the petitioner cut short his speech and, thereafter, went back to his table.
However, the mocking continued. Thereupon, the petitioner, with the loaded firearm in hand, went to the table
occupied by his political rivals. He then stared at Atty. Maglana and thereafter fired a shot upwards, causing the
crowd to scamper for safety. The petitioners bodyguards immediately took hold of his hand to prevent him from firing
another shot. Consequently, Ali Prudenciado, a former policeman and then, a kagawad, disarmed the petitioner.12
The following morning, the Chief of Police of Almagro, Samar entered the incident into the police blotter as an
"accidental firing".13
The Defenses Version
The petitioner denied that he was in possession of a firearm during the April 3, 1995 fiesta celebration in Barangay
Biasong. He claimed that, while he was delivering his speech therein, a group of people were shouting insults at him.
Not wanting to aggravate the situation, the petitioner abruptly ended his speech and went to the group to ask them
not to disturb the festivities.14
The group, however, continued to mock the petitioner, prompting PO3 Conrado Unajan (PO3 Unajan) to draw his
firearm from his holster to pacify the unruly crowd. When the petitioner saw this, he tried to take the firearm away
from PO3 Unajan and, in the process, a shot was accidentally fired. Thereafter, the petitioner was able to take hold of
the firearm and, together with PO3 Unajan, went back to his table. He then returned the firearm to PO3 Unajan.15
The RTCs Decision

On May 23, 2003, the RTC rendered a judgment16 finding the petitioner guilty beyond reasonable doubt of the crimes
of violation of election gun ban and illegal possession of firearms and ammunitions. The dispositive portion of the
RTCs decision reads:
WHEREFORE AND IN VIEW OF THE FOREGOING, judgment is hereby rendered finding accused, Raul Escalante,
GUILTY beyond reasonable doubt of the crimes of Illegal Possession of Firearm and Ammunition and for Violation of
Section 261, Par. (q) of the Omnibus Election Code for which he is hereby sentenced (1) in Criminal Case No. 3824
to an Indeterminate Penalty of imprisonment ranging from FOUR (4) YEARS and TWO (2) MONTHS, as minimum, to
SIX (6) YEARS, as maximum, both of prision correccional, and to pay a fine of [P]15,000.00 and to pay the costs, and
(2) in Criminal Case No. 2074, he is hereby sentenced to a straight penalty of ONE (1) YEAR imprisonment and to
pay the costs.
IT IS SO ORDERED.17
The RTC found the testimonies of the prosecution witnesses as to the petitioners possession of a firearm during the
said incident to be categorical and straightforward and should thus be accorded full weight and credit. The RTC
likewise disregarded the petitioners claim that it was PO3 Unajan who was in possession of the firearm, asserting
that the same is belied by the respective affidavits executed by the officials of Barangay Biasong and the report
executed by the Chief of Police of Almagro.
The petitioner appealed to the CA, asserting that the RTC erred in convicting him for the crimes charged since the
prosecution failed to establish the following: (1) the existence of the firearm which is the corpus delicti; and (2) the
absence of a license or permit for the firearm.
The CAs Decision
On June 24, 2008, the CA rendered the herein assailed decision18 which affirmed in toto the May 23, 2003 Judgment
of the RTC. The CA held that the prosecution was able to establish the existence of the firearm notwithstanding that it
was not presented as evidence. It pointed out that the straightforward and positive testimonies of the prosecution
witnesses on the petitioners possession of a firearm during the April 3, 1995 fiesta celebration in Barangay Biasong
and the circumstances surrounding it had amply established the corpus delicti. In any case, the CA asserted that in
an indictment for illegal possession of firearms and ammunitions and violation of election gun ban, the production of
the firearm itself is not required for conviction.
Further, the CA held that there was no necessity on the part of the prosecution to prove that the petitioner had no
license or permit to possess a firearm since the same had already been admitted by the petitioner during the trial.
The petitioner sought a reconsideration of the June 24, 2008 Decision of the CA, maintaining that the prosecution
failed to substantiate the elements of the crimes charged against him. Additionally, the petitioner averred that Criminal
Case No. 3824 for illegal possession of firearms and ammunitions should be dismissed pursuant to the ruling of this
Court in Agote v. Judge Lorenzo19 which declared that an accused is not liable for illegal possession of firearm if the
firearm was used in the commission of an offense such as a violation of the election gun ban.
On March 4, 2009, the CA issued a resolution20 which partly granted the petitioners motion for reconsideration, the
decretal portion of which reads:
WHEREFORE, the Motion for Reconsideration dated July 18, 2008 is PARTLY GRANTED. Criminal Case No. 3824
is DISMISSED and accused-appellants conviction in Criminal Case No. 2074 for Violation of Section 261, par. (q) of
the Omnibus Election Code, AFFIRMED.
SO ORDERED.21

The CA ruled that under prevailing jurisprudence there can be no separate offense of simple illegal possession of
firearm if the unlicensed firearm is used in the commission of any crime. Considering that the petitioner was convicted
of violation of election gun ban, the CA held that he can no longer be convicted for illegal possession of firearm.
Nevertheless, the CA found no reason to reverse the conviction of the petitioner for violation of election gun ban.
On April 7, 2009, the petitioner, with leave of court, filed a "Second Partial Motion for Reconsideration of Judgment for
Violation of the Omnibus Election Code only". On May 5, 2010, the CA issued a resolution denying the second partial
motion for reconsideration filed by the petitioner.
Undaunted, the petitioner filed the instant petition.
Issue
The petitioner submits a lone issue for this Courts resolution:
WHETHER THE RESPONDENT COURT COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK
OR EXCESS OF JURISDICTION WHEN IT RESOLVED TO DENY THE APPEAL FILED BY THE PETITIONER
DESPITE THE FACT THAT ONE OF THE ESSENTIAL ELEMENTS OF THE OFFENSE OF VIOLATION OF
COMELEC GUN BAN IS ABSENT.22
The Courts Ruling
The petition is dismissed.
The petitioner committed a serious procedural faux pas by filing before this Court a petition for certiorari under Rule
65, when the proper remedy should have been a petition for review on certiorari under Rule 45 of the Rules of Court.
Decisions, final orders or resolutions of the CA in any case, i.e., regardless of the nature of the action or proceedings
involved, may be appealed to this Court by filing a petition for review under Rule 45, which would be but a
continuation of the appellate process over the original case.23
The period to file a petition for review on certiorari is 15 days from notice of the decision appealed from or of the
denial of the petitioners motion for reconsideration.24
Here, the petitioner received a copy of the CAs May 5, 2010 Resolution, which denied his second motion for
reconsideration, on May 20, 2010, thus, he only had until June 4, 2010 to file a petition for review on certiorari with
this Court. This he failed to do.
"The perfection of an appeal in the manner and within the period prescribed by law is mandatory. Failure to conform
to the rules regarding appeal will render the judgment final and executory and, hence, unappealable."25Thus, the
petitioners failure to file a petition for review under Rule 45 within the reglementary period rendered the CAs June
24, 2008 Decision, as modified by its March 4, 2009 Resolution, final and executory.
It is at once evident that the instant certiorari action is merely being used by the petitioner to make up for his failure to
promptly interpose an appeal from the CAs June 24, 2008 Decision and March 4, 2009 Resolution. "However, a
special civil action under Rule 65 cannot cure petitioners failure to timely file a petition for review on Certiorari under
Rule 45 of the Rules of Court."26 It is settled that a special civil action for certiorari will not lie as a substitute for the
lost remedy of appeal, especially if such loss or lapse was occasioned by ones own neglect or error in the choice of
remedies.27
In any case, assuming arguendo that a petition for certiorari is the proper remedy, the petition would still be
dismissed.

The petitioner claimed that the CA gravely abused its discretion when it affirmed his conviction for violation of election
gun ban considering that the fact of his possession of the firearm was not sufficiently established. He averred that the
firearm, alleged to be possessed by him during the incident, was in fact in the possession of PO3 Unajan and that it
was only when he wrestled the firearm away from the latter that he was able to possess it. His possession of the
firearm, the petitioner contends, is merely incidental and would not suffice to convict him for violation of election gun
ban.
Basically, the petitioner asks this Court to overturn the factual findings of the RTC and the CA for alleged
misapprehension of evidence. However, "it is settled that questions of fact cannot be raised in an original action for
certiorari."28 Only established or admitted facts can be considered.29
That the petitioner was in possession of a firearm with live ammunition outside of his residence within the period of
the election gun ban imposed by the COMELEC sans authority therefor is a finding of fact by the RTC and the CA
which cannot be disturbed by this Court in this original action for certiorari.
Moreover, "it has been held time and again that factual findings of the trial court, its assessment of the credibility of
witnesses and the probative weight of their testimonies and the conclusions based on these factual findings are to be
given the highest respect. As a rule, the Court will not weigh anew the evidence already passed on by the trial court
and affirmed by the CA."30 Here, the Court sees no compelling reason to depart from this rule.
The Court notes, however, that the lower courts erred in imposing the applicable penalty against the petitioner.
Finding the petitioner guilty of the offense of violation of election gun ban, the RTC imposed upon him the straight
penalty of one (1) year imprisonment. The penalty imposed by the RTC was affirmed by the CA. Section 264 of BP
881, in part, reads:
Sec. 264. Penalties. Any person found guilty of any election offense under this Code shall be punished with
imprisonment of not less than one year but not more than six years and shall not be subject to probation. In addition,
the guilty party shall be sentenced to suffer disqualification to hold public office and deprivation of the right of
suffrage. If he is a foreigner, he shall be sentenced to deportation which shall be enforced after the prison term has
been served. x x x. (Emphasis ours)
On the other hand, Section 1 of the Indeterminate Sentence Law31 provides:
Sec. 1. Hereafter, in imposing a prison sentence for an offense punished by the Revised Penal Code, or its
amendments, the court shall sentence the accused to an indeterminate sentence the maximum term of which shall
be that which, in view of the attending circumstances, could be properly imposed under the rules of the said Code,
and the minimum which shall be within the range of the penalty next lower to that prescribed by the Code for the
offense; and if the offense is punished by any other law, the court shall sentence the accused to an indeterminate
sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be
less than the minimum term prescribed by the same.1wphi1
Applying the Indeterminate Sentence Law, the imposable penalty for violation of the election gun ban should have a
maximum period, which shall not exceed six (6) years, and a minimum period which shall not be less than one (1)
year. Accordingly, the RTC and the CA erred in imposing a straight penalty of one (1) year imprisonment against the
petitioner.
Nevertheless, considering that the CAs June 24, 2008 Decision and March 4, 2009 Resolution had already attained
finality on account of the petitioners failure to timely file a petition for review on Certiorari under Rule 45, the Court
may no longer modify the penalty imposed by the lower courts no matter how obvious the error may be. "Under the
doctrine of finality of judgment or immutability of judgment, a decision that has acquired finality becomes immutable
and unalterable, and may no longer be modified in any respect, even if the modification is meant to correct erroneous

conclusions of fact and law, and whether it be made by the court that rendered it or by the Highest Court of the
land."32
WHEREFORE, in consideration of the foregoing disquisitions, the petition is DISMISSED. The Decision dated June
24, 2008 and Resolution dated March 4, 2009 of the Court of Appeals in CA-G.R. CR No. 27673 are hereby
AFFIRMED.
SO ORDERED.
BIENVENIDO L. REYES
Associate Justice