Jurisprudence - Firearms
Jurisprudence - Firearms
Jurisprudence - Firearms
PARDO, J.:
Petitioner Vicente del Rosario y Nicolas appeals via certiorari from a decision of the Court of
Appeals1 affirming with modification the decision of the Regional Trial Court, Bulacan, Branch 20,
Malolos, and finding him guilty beyond reasonable doubt of violation of P. D. No. 1866, as amended, by
Republic Act No. 8294 (illegal possession of firearms), sentencing him to four (4) years, nine (9) months
and eleven (11) days of prision correccional, as minimum, to six (6) years, eight (8) months and one (1)
day of prision mayor, as maximum, and to pay a fine of P30,000.00.1âwphi1.nêt
On June 17, 1996, Assistant Provincial Prosecutor Eufracio S. Marquez of Bulacan filed with the Regional
Trial Court, Bulacan, Malolos an Information charging petitioner Vicente del Rosario y Nicolas with
violation of P. D. No. 1866, as follows:
"That on or about the 15th day of June 1996, in the municipality of Norzagaray, Province of Bulacan,
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 under his custody and control, the
following, to wit:
"c) Twenty Seven (27) rds live ammos. For cal. .45
"f) Five (5) pcs. Magazines short for cal. 5.56 (M16)
"Contrary to law."2
On June 25, 1996, the trial court arraigned the petitioner. He pleaded not guilty.3 Trial ensued.
"Sometime in May 1996, the police received a report that accused-appellant Vicente del Rosario was in
possession of certain firearms without the necessary licenses. Acting upon the report, P/Sr. Insp. Jerito
Adique of the PNP Criminal Investigation Group at Camp Olivas, Pampanga inquired from the PNP
Firearms and Explosive Division "whether or not the report was true. On May 10, 1996, P/Sr. Insp. Edwin
C. Roque of the PNP Firearms and Explosives Division issued a certification (Exhibit L) stating that per
records in his office, the appellant is not a licensed/registered firearm holder of any kind and caliber.
Armed with the said certification, P/Sr. Insp. Adique applied for a search warrant to enable his team to
search the house of appellant.1âwphi1.nêt
"On June 13, 1996, a search warrant (Exhibit A) was issued by Judge Gil Femandez, Sr. of the Regional
Trial Court of Quezon City, Branch 217, authorizing the search of the residence of appellant at Barangay
Tigbe, Norzagaray, Bulacan.4 On June 15, 1996, at about 7:00 o'clock in the morning, a team led by P/Sr.
Insp. Adique went to Norzagaray to serve the warrant. Before proceeding to the residence of the appellant,
the police officers requested Barangay Chairman Rogelio de Silva and Barangay Councilman Aurelio
Panteleon to accompany them in the implementation of the warrant. Upon arrival at the house of appellant,
the police officers introduced themselves to the wife of appellant. When the appellant came out, P/Sr. Insp.
Adique informed him that they had a search warrant and that they were authorized to search his house.
After appellant gave his permission, the police officers conducted a search of the house. The search yielded
the following items: (a) a caliber .45 pistol with Serial No. 703792 with five magazines of caliber .45
(Exhibits B and H) found at the master's bedroom; (b) five magazines of 5.56 M-16 rifle and two radios
(Exhibits C to C-4) found in the room of appellant's daughter; and (c) a caliber .22 revolver with Serial No.
48673 (Exhibit F) containing 8 pieces of live ammunition (Exhibit M) found in the kitchen of the house.
When asked about his license to possess the firearms, the appellant failed to produce any. This prompted
the police officers to seize the subject firearms.
"SPO2 Marion Montezon, one of the searching officers, prepared three separate inventories of the seized
items (Exhibits H, M and N). The inventories were signed by P/Sr. Insp. Adique, the appellant and the
barangay officials who witnessed the search. Thereafter SPO2 Montezon prepared a certification of orderly
search (Exhibit I) which was signed by the appellant and the barangay officials attesting to the orderly
conduct of the search.
"For his defense, appellant contends that he had a license for the caliber .45 pistol recovered in his bedroom
and that the other items seized during the search including the caliber .22 revolver, were merely planted by
the police officers. Appellant likewise assails the manner in which the search was carried out, claiming that
the police officers just barged into his house without asking permission. Furthermore, he claimed that the
barangay officials arrived only after the police already had finished the search.
"After trial and on July 2, 1998, the trial court rendered a judgment of conviction, the dispositive portion of
which reads:
"WHEREFORE, premises considered, the Court finds the accused VICENTE DEL ROSARIO y
NICOLAS guilty beyond reasonable doubt of violation of P. D. No. 1866 as charged under the Information
dated June 17, 1996.
"Conformably with the provisions of said law, as amended by Republic Act No. 8294, and pursuant to the
provisions, of the Indeterminate Sentence Law, the Court hereby sentences the accused to suffer
imprisonment of six (6) months of arresto mayor, as minimum, to six (6) years of prision correctional, as
maximum, and to pay a fine of Fifteen. Thousand Pesos (P15,000.00).
On July 20, 1998, petitioner appealed to the Court of Appeals, assailing the decision for being contrary to
facts and the law.6
On July 9, 1999, the Court of Appeals promulgated its decision affirming with modification the decision of
the trial court as set out in the opening paragraph of this decision.7
On August 10, 1999, petitioner filed with the Court of Appeals a motion for reconsideration and/or new
trial.8 He contended that the certification issued by the Chief, Firearms and Explosives Division, Philippine
National Police stating that the person named therein had not been issued a firearm license referred to a
certain Vicente "Vic" del Rosario of barangay Bigte, Norzagaray, Bulacan, not to him. He comes from
barangay Tigbe, Norzagaray, Bulacan, and that he has a valid firearm license.
On February 22, 2000, the Court of Appeals denied the motion for reconsideration for lack of merit.9
We find the petition impressed with merit. We define the issues as follows:
First: whether petitioner had a license for the .45 caliber Colt pistol and ammunition seized in his
bedroom; and
Second: whether the .22 caliber revolver seized in a drawer at the kitchen of his house, a magazine for 5.56
mm. cal. Armalite rifle and two 2-way radios found in his daughter's bedroom, were planted by the police
or were illegally seized.
Normally, we do not review the factual findings of the Court of Appeals and the trial courts. 12 However,
this case comes within the exceptions. 13 The "findings of fact by the Court of Appeals will not be disturbed
by the Court unless these findings are not supported by evidence." 14 In this case, the findings of the lower
courts even directly contradict the evidence. Hence, we review the evidence. The trial court held that the
copy of the license presented was blurred, and that in any event, the court could rely on the certification
dated May 10, 1996, of P/Sr. Inspector Edwin C. Roque, Chief, Records Branch, Firearms and Explosives
Division, Philippine National Police stating that Vicente "Vic" del Rosario of Barangay Bigte, Norzagaray,
Bulacan is not a licensed/registered firearm holder of any kind and caliber. 15 As against this, petitioner
submitted that he was not the person referred to in the said certification because he is Vicente del Rosario y
Nicolas from Barangay Tigbe, Norzagaray, Bulacan. The Court takes judicial notice of the existence of
both barangay Tigbe and barangay Bigte, in Norzagaray, Bulacan.16 In fact, the trial court erred grievously
in not taking judicial notice of the barangays within its territorial jurisdiction, believing the prosecution's
submission that there was only barangay Tigbe, and that barangay Bigte in the certification was a
typographical error.17 Petitioner presented to the head of the raiding team, Police Senior Inspector Jerito A.
Adique, Chief, Operations Branch, PNP Criminal Investigation Command, a valid firearm license. The
court is duty bound to examine the evidence assiduously to determine the guilt or innocence of the accused.
It is true that the court may rely on the certification of the Chief, Firearms and Explosives Division, PNP
on the absence of a firearm license.18 However, such certification referred to another individual and thus,
cannot prevail over a valid firearm license duly issued to petitioner. In this case, petitioner presented the
printed computerized copy of License No. RCL 1614021915 issued to him on July 13, 1993, expiring in
January 1995, by the Chief, Firearms and Explosives Division, PNP under the signature of Reynaldo V.
Velasco, Sr. Supt. (GSC) PNP, Chief, FEO. 19 On the dorsal side of the printed computerized license, there
is stamped the words "Validity of computerized license is extended until renewed license is printed" dated
January 17, 1995, signed by Police Chief Inspector Franklin S. Alfabeto, Chief, Licence Branch,
FEO.20 Coupled with this indefinite extension, petitioner paid the license fees for the extension of the
license for the next two-year period.21
Consequently, we find that petitioner was the holder of a valid firearm license for the .45 caliber Colt pistol
seized in the bedroom of his house on June 15, 1996. 22 As required, petitioner presented the license to the
head of the raiding team, Police Senior Inspector Jerito A. Adique of the Criminal Investigation Division
Group, PNP.23 As a senior police officer, Senior Inspector Adique could easily determine the genuineness
and authenticity of the computerized printed license presented. He must know the computerized license
printed form. The stamp is clearly visible. He could decipher the words and the signature of the authorized
signing official of the Firearms and Explosives Division, PNP. He belonged to the same national police
organization.
Nevertheless, Senior Insp. Adique rejected the license presented because, according to him, it was expired.
However, assuming that the license presented was expired during the period January 1995 to January 1997,
still, possession of the firearm in question, a .45 caliber Colt pistol with serial No. 70G23792, during that
period was not illegal. The firearm was kept at home, not carried outside residence. On June 15, 1996, at
the time of the seizure of the firearm in question, possession of firearm with an expired license was not
considered unlawful, provided that the license had not been cancelled or revoked. Republic Act No. 8294,
providing that possession of a firearm with an expired license was unlawful took effect only on July 7,
1997.24 It could not be given retroactive effect.25
According to firearm licensing regulations, the renewal of a firearm license was automatically applied for
upon payment of the license fees for the renewal period. The expired license was not cancelled or revoked.
It served as temporary authority to possess the firearm until the renewed license was issued. Meantime, the
applicant may keep the gun at home pending renewal of the firearm license and issuance of a printed
computerized license. He was not obliged to surrender the weapon. Printed at the dorsal side of the
computerized license is a notice reading:
"IMPORTANT
1. This firearm license is valid for two (2) years. Exhibit this license whenever demanded by proper
authority.
2. Surrender your firearm/s to the nearest PNP Unit upon revocation or termination of this license. Under
any of the following instances, your license shall be revoked for which reason your firearm/s is/are subject
to confiscation and its/their forfeiture in favor of the government.
a. Failure to notify the Chief of PNP in writing of your change of address, and/or qualification.
b. Failure to renew this license by paying annual license, fees, within six (6) months from your birth
month. Renewal of your license can be made within your birth month or month preceding your birth
month. Late renewal shall be penalized with 50% surcharge for the first month (from the first day to the
last day of this month) followed by an additional 25% surcharge for all of the succeeding five (5) months
compounded monthly.
d. Carrying of firearm/s outside of residence without appropriate permit and/or carrying firearm/s in
prohibited places.
e. Conviction by competent court for a crime involving moral turpitude or for any offense where the
penalty carries an imprisonment of more than six (6) months or fine of at least Pl,000.00.
4. If termination is due to death, your next of kin should surrender your firearm/s to the nearest PNP Unit.
For those within Metro, Manila, surrender should be made with FEO, Camp Crame.
5. When firearms become permanently unserviceable, they should be deposited with the nearest PNP Unit
and ownership should be relinquished in writing so that firearms may be disposed of in accordance with
law.
6. Application for the purchase of ammunition should be made in case of a resident of Metro Manila direct
to the Chief, FEO and for residents of a Province to secure recommendation letter to the nearest PNP
Provincial Command who will thereafter endorse same to CHIEF, FEO for issuance of the permit. License
must be presented before an authority to purchase ammo could be obtained."26
Indeed, as heretofore stated, petitioner duly paid the license fees for the automatic renewal of the firearm
license for the next two years upon expiration of the license in January, 1995, as evidenced by official
receipt No. 7615186, dated January 17, 1995.27 The license would be renewed, as it was, because petitioner
still possessed the required qualifications. Meantime, the validity of the license was extended until the
renewed computerized license was printed. In fact, a renewed license was issued on January 17, 1997, for
the succeeding two-year period.28
Aside from the clearly valid and subsisting license issued to petitioner, on January 25, 1995, the Chief,
Philippine National Police issued to him a permit to carry firearm outside residence valid until January 25,
1996, for the firearm in question.29 The Chief, Philippine National Police would not issue a permit to carry
firearm outside residence unless petitioner had a valid and subsisting firearm license. Although the permit
to carry firearm outside residence was valid for only one year, and expired on January 25, 1996, such
permit is proof that the regular firearm license was renewed and subsisting within the two-year term up to
January 1997." A Permit to Carry Firearm Outside Residence presupposes that the party to whom it is
issued is duly licensed to possess the firearm in question." 30 Unquestionably, on January 17, 1997, the
Chief, Firearms and Explosives Division, PNP renewed petitioner's license for the .45 cal. Colt pistol in
question.31
Clearly then; petitioner had a valid firearm license during the interregnum between January 17, 1995, to the
issuance of his renewed license on January 17, 1997.
Finally, there is no rhyme or reason why the Court of Appeals and the trial court did not accept with
alacrity the certification dated June 25, 1996, of P/Sr. Inspector Edwin C. Roque, 32 Chief, Records Branch,
Firearms and Explosives Division, PNP that Vicente N. del Rosario of Barangay Tigbe, Norzagaray,
Bulacan is a licensed/registered holder of Pistol, Colt caliber .45 with serial number 70G23792, covered by
computerized license issued dated June 15, 1995, with an expiry date January 1997. 33 Reinforcing the
aforementioned certification, petitioner submitted another certification dated August 27, 1999, stating that
Vicente N. del Rosario of Barangay Tigbe, Norzagaray, Bulacan, was issued firearm license No. RL-
C1614021915, for caliber .45 Pistol with Serial Number 70G23792, for the years covering the period from
July 13, 1993 to January 1995, and the extension appearing at the back thereof for the years 1995 to
1997.34 Had the lower courts given full probative value to these official issuances, petitioner would have
been correctly acquitted, thus sparing this Court of valuable time and effort.
"In crimes involving illegal possession of firearm, the prosecution has the burden of proving the elements
thereof, viz.: (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. 35 The essence of the crime of illegal
possession is the possession, whether actual or constructive, of the subject firearm, without which there can
be no conviction for illegal possession. After possession is established by the prosecution, it would only be
a matter of course to determine whether the accused has a license to possess the firearm." 36 "Possession of
any firearm becomes unlawful only if the necessary permit or license therefor is not first obtained. The
absence of license and legal authority constitutes an essential ingredient of the offense of illegal possession
of firearm and every ingredient or essential element of an offense must be shown by the prosecution by
proof beyond reasonable doubt. Stated otherwise, the negative fact of lack or absence of license constitutes
an essential ingredient of the offense which the prosecution has the duty not only to allege but also, to
prove beyond reasonable doubt."37 "To convict an accused for illegal possession of firearms and explosives
under P. D. 1866, as amended, two (2) essential elements must be indubitably established, viz.: (a) the
existence of the subject firearm 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 had no license or permit to own or possess the firearm 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." x x x
We stress that the essence of the crime penalized under P. D. 1866 is primarily the accused's lack of license
or permit to carry or possess the firearm, ammunition or explosive as possession by itself is not prohibited
by law."38 Illegal possession of firearm is a crime punished by special law, a malum prohibitum, and no
malice or intent to commit a crime need be proved. 39 To support a conviction, however, there must be
possession coupled with intent to possess (animus possidendi) the firearm.40
In upholding the prosecution and giving credence to the testimony of police officer Jerito A. Adigui, the
trial court relied on the presumption of regularity in the performance of official duties by the police
officers.41 This is a flagrant error because his testimony is directly contradictory to the official records of
the Firearms and Explosives Division, PNP, which must prevail. Morever, the presumption of regularity
can not prevail over the Constitutional presumption of innocence. 42 Right from the start, P/Sr. Insp. Jerito
A. Adigue was aware that petitioner possessed a valid license for the caliber .45 Colt pistol in question.
Despite this fact, P/Sr. Insp. Adigue proceeded to detain petitioner and charged him with illegal possession
of firearms. We quote pertinent portions of the testimony of petitioner:
Q: What else did Adigue tell you after showing to him the license of your cal. .45 pistol and the alleged
cal. .22 found in a drawer in your kitchen?
A: He told me that since my firearm is licensed, he will return my firearm, give him ten thousand
pesos (P10,000.00) and for me to tell who among the people in our barangay have unlicensed firearm, sir.
A: I told him my firearm is licensed and I do not have money, if I have, I will not give him, sir, because
he was just trying to squeeze something from me.
Q: How about the unlicensed firearms in your barangay which he asked, from you?
A: I said I do not know any unlicensed firearm in our barangay, sir.
Q: About the .22 cal. pistol, what was your answer to him?
A: I told him that it was not mine, they planted it, sir.
A: He said that it is your word against mine, the Court will believe me because I am a police officer,
sir.
A: I said my firearm is licensed and we have Courts of law who do not conform with officials like you
and then he laughed and laughed, sir."43
The trial court was obviously misguided when it held that "it is a matter of judicial notice that a caliber .45
firearm can not be licensed to a private individual." 44 This ruling has no basis either in law or in
jurisprudence.45
Second issue. The seizure of items not mentioned in the search warrant was illegal.
With respect to the .22 caliber revolver with Serial No. 48673, that the police raiding team found in a
drawer at the kitchen of petitioner's house, suffice it to say that the firearm was not mentioned in the search
warrant applied for and issued for the search of petitioner's house. "Section 2, Article III of the Constitution
lays down the general rule that a search and seizure must be carried out through or on the strength of a
judicial warrant, absent which such search and seizure becomes 'unreasonable' within the meaning of said
constitutional provision."46 "Supporting jurisprudence thus outlined the following requisites for a search
warrant's validity, the absence of even one will cause" its downright nullification: (1) it must be issued
upon probable cause; (2) the probable cause must be determined by the judge himself and not by the
applicant or any other person; (3) in the determination of probable cause, the judge must examine, under
oath or affirmation, the complainant and such witnesses as the latter may produce; and (4) the warrant
issued must particularly describe the place to be searched and persons or things to be seized." 47 Seizure is
limited to those items particularly described in a valid search warrant. Searching officers are without
discretion regarding what articles they shall seize.48 Evidence seized on the occasion of such an
unreasonable search and seizure is tainted and excluded for being the proverbial "fruit of a poisonous tree."
In the language of the fundamental law, it shall be inadmissible in evidence for any purpose in any
proceeding.49
In this case, the firearm was not found inadvertently and in plain view. It was found as a result of a
meticulous search in the kitchen of petitioner's house. This firearm, to emphasize, was not mentioned in the
search warrant. Hence, the seizure was illegal. 50 The seizure without the requisite search warrant was in
plain violation of the law and the Constitution. 51 True that as an exception, the police may seize without
warrant illegally possessed firearm or any contraband for that matter, inadvertently found in plain view.
However, "[t]he seizure of evidence in 'plain view' applies only where the police officer is not searching for
evidence against the accused, but inadvertently comes across an incriminating object." 52 Specifically,
seizure of evidence in "plain view" is justified when there is:
(a) a prior valid intrusion based on the valid warrantless arrest in which the police are legally present in the
pursuit of their official duties;
(b) the evidence was inadvertently discovered by the police who had the right to be where they are.
(d) "plain view" justified mere seizure of evidence without further search.53
Hence, the petitioner rightly rejected the firearm as planted and not belonging to him. The prosecution was
not able to prove that the firearm was in the effective possession or control of the petitioner without a
license. In illegal possession of firearms, the possessor must know of the existence of the subject firearm in
his possession or control. "In People v. de Gracia,54 we clarified the meaning of possession for the purpose
of convicting a person under P. D. No.1866, thus: x x x '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.' x x x x Hence, the kind of possession
punishable under P. D. No. 1866 is one where the accused possessed a firearm either physically or
constructively with animus possidendi or intention to possess the same."55 That is the meaning of animus
possidendi. In the absence of animus possidendi, the possessor of a firearm incurs no criminal liability.
The same is true with respect to the 5.56 cal. magazine found in the bedroom of petitioner's daughter. The
seizure was invalid and the seized items were inadmissible in evidence. As explained in People v.
Doria,56 the "plain view" doctrine applies when the following requisites concur: (1) the law if enforcement
officer is in a position where he has a clear view of a particular area or alias prior justification for an
intrusion; (2) said officer inadvertently comes across (or sees in plain view) a piece of incriminating
evidence; and (3) it is, immediately apparent to such officer that the item he sees may be evidence of a
crime or a contraband or is otherwise subject to seizure."
With particular reference to the two 2-way radios that the raiding policemen also seized in the bedroom of
petitioner's daughter, there was absolutely no reason for the seizure. The if radios were not contraband per
se. The National Telecommunications Commission may license two-way radios at its discretion. 57 The
burden is on the prosecution to show that the two-way radios were not licensed. The National
Telecommunication Commission is the sole agency authorized to seize unlicensed two-way radios. More
importantly, admittedly, the two-way radios were not mentioned in the search warrant. We condemn the
seizure as illegal and a plain violation of a citizen's right. Worse, the petitioner was not charged with illegal
possession of the two-way radios.1âwphi1.nêt
Consequently, the confiscation of the two 2-way radios was clearly illegal. The possession of such radios is
not even included in the charge of illegal possession of firearms (violation of P. D. No. 1866, as amended)
alleged in the Information.
The Court ACQUITS petitioner Vicente del Rosario y Nicolas of the charge of violation of P. D. No.
1866, as amended by R. A. No. 8294 (illegal possession of firearms and ammunition), in Criminal Case
No. 800-M-96, Regional Trial Court, Bulacan, Branch 20, Malolos.
Costs de oficio.
The Chief; Firearms and Explosives Division, PNP shall return to petitioner his caliber .45 Colt pistol, with
Serial Number No. 70023792, the five (5) extra magazines and twenty seven (27) rounds of live
ammunition, and the two 2-way radios confiscated from him. The Chief, Philippine National Police, or his
duly authorized representative shall show to this Court proof of compliance herewith within fifteen (15)
days from notice. The .22 caliber revolver with Serial No. 48673, and eight (8) live ammunition and the
magazine for 5.56 mm. caliber Armalite rifle are confiscated in favor of the government.1âwphi1.nêt
SO ORDERED.