Tokie

PP

Vs.

Aquilino Andrade, Roman Lacap, Yong Fung Yuen, Ricky Yu, VIente Sy,

Alvin So, Romualdo Miranda, Sindao Melibas, Saturnino Liwanag,

Roberto Medina and Ramon Navarro, Respondets,

Doctrine:

It is clearly provided by the Rules of Criminal Procedure that of the motion to quash is based on an alleged

defect in the information which can be cured by amendment, the court shall order the amendment to be

made. (Rule 117, Section 4, Par 1, Revised Rules of Criminal Procedure)

If it is based on the ground that the facts charged do not constitute an offense, the prosecution shall be

given by the court an opportunity to correct the defect by amendment. The motion shall be granted if the

prosecution fails to make the amendment, or the complaint or information still suffers from the same

defect despite the amendment. (Ibid, Par 2)

Facts:

Petitioners herein seek the consideration of the court (SC) for the petition for review on certiorari under

rule 45 of the roc w/c seeks to reverse and set aside the decision dated may 29, 2008 and resolution dated

Feb 26, 2009 of the CA.

Pursuant to the instructions of then Director of the Bureau of Corrections, Dionisio R. Santiago dated June

30, 2003, a random drug test was conducted in the National Bilibid Prison (NBP) wherein out of the 38

inmates who were tested 21 were found out to be positive. The 21 tests that were initially conducted

were confirmed by the NBI Forensic Chemistry Division.

Necessarily, they were charged of violating section 15 article 2 of RA 9165 for using one of those prohibited

drugs called Methamphetamine Hydrochloride, otherwise known as “shabu”. All respondents pleaded not

guilty on June 29, 2006.

On August 29, 2006, respondents filed a consolidated motion to dismiss arguing that a strict reading of

section 15 article 2 of ra 9165, the facts alleged in the information does not constitute a violation of said

section. Section 15 article 2 of ra 9165 is committed by a person apprehended or arrested for using any

of the dangerous drugs proscribed by law, and who is found to be positive for using any of the same after

a confirmatory test.

They allege that they were never apprehended or arrested for using a dangerous drug or for violating the

provisions of ra 9165 which would warrant drug testing and serve as basis for filing the proper information

in court. They aver that they were only called to the Maximum Security Conference Hall which is different

from being arrested. To bolster their motion to dismiss, they cite Section 36 Article 3 of RA 9165 stating

that inmates of the Bureau of Corrections are not included who if found positive after such drug test shall

be subject to the provisions of Section 15 hence, they cannot be made liable under said section.

And assuming arguendo that respondents were apprehended for using a dangerous drug, the drug test

would be invalid absent a showing that the same was conducted within 24hrs after the apprehension or

arrest of the offender thru a confirmatory test within 15 days of receipt in accordance with the provisions

of section 38 article 2 of ra 9165.

The respondents were not informed of the results of the screening test, thus depriving them of the right

to challenge the same thru a confirmatory drug test within the 15 day required period after receipt of the

positive result.

RTC RULING:

RTC granted the consolidated motions to dismiss reasoning out that the respondents have not been

arrested nor apprehended; and neither do they fall under sec. 36 art 3 of RA 9165. Hence, they cannot be

made liable under section 15 of RA 9165. The inmates, at the very least, may be made liable

administratively for violation of the Bureau of Corrections or NBP rules and regulations but not necessarily

for violation of Sec. 15 Art. 2 of RA 9165.

CA RULING:

Petitioner herein filed a petition for certiorari with the CA after its motion for reconsideration with the

RTC was denied. The CA affirmed the decision of the RTC.

Petitioner then filed its motion for reconsideration but it met the same fate hence the present petition.

Petitioner asserts that respondents had lost the remedy under section 3(a) Rule 117 of the ROC having

been already arraigned before availing of said remedy.

Respondents rebutted stating that since it relied on section 3(a) of Rule 117 of the ROC, which states that

it can still be filed even after they have entered their plea.

Issue now before the SC:

WON the ground used by the respondents in their motion to dismiss which is, that the facts alleged in the

information do not constitute an offense, is actually one of the grounds provided under a motion to quash

in section 3(a) rule 117 of the revised rules of criminal procedure.

Ruling:

SC held that the motion to dismiss by the respondents is one of the exceptions to the general rule that

any ground of a motion to quash must be raised before being arraigned. This being filed under section

3(a) of rule 117 of the rules of court.

However, the mistake is in the dismissal of the case by the RTC. The RTC judge erred when she dismissed

the cases based on lack of probable cause and NOT on the ground raised by respondents.

Section 2 rule 117 of the revised rules on criminal procedure stat the court cannot consider any ground other that those stated in the motion to dismiss, except lack of jurisdiction over the offense charged. In the present case, the respondents’ motion to quash is based on the allegation that the facts of the information do not constitute an offense and NOT lack of probable cause as ruled by the RTC judge.

The SC further stated that there are two kinds of determination of probable cause; executive and judicial.

The executive determination or preliminary investigation is vested upon the prosecutor while the judicial

determination or preliminary examination is left to the sound discretion of the judge.

The former is used to determine in finding a probable cause to warrant the filing of an information in court

and the latter is to determine whether there is reasonable grounds to issue a warrant of arrest against the

accused. The judge has no capacity to review the prosecutor’s determination of probable cause. In the

present case, by proceeding with the arraignment of respondents, there was already an admittance of

probable cause. Considering this, the RTC should have denied respondent’s motion to dismiss and allowed

the prosecution to present its evidence and wait for a demurrer to evidence filed by the respondents.

Section 4 rule 117 of the Revised Rules of Criminal Procedure state that if the ground is based upon that

the facts charged do not constitute an offense, the prosecution shall be given by the court an opportunity

to correct the defect by amendment.

If the defect in the information is curable by amendment, the motion to quash shall be denied and the

prosecution shall be ordered to file an amended information. In the present case, the RTC judge outright

dismissed the case without giving the prosecution an opportunity to amend the defect in the information.

Even the CA admitted that the RTC erred in that regard. With that in mind, the CA still upheld the decision

of the RTC stating that whatever error the RTC committed is already inconsequential as any amendment

cannot surely cure the defects.

The SC said that the CA also erred in that aspect because it deprived the prosecution its day in court by

not giving it a chance to amend the information.

The present petition is granted by the SC and the decisions of the RTC and CA are reversed and set aside.