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FIRST DIVISION

A.M. No. RTJ-95-1293 May 9, 1995

GIL V. MANLAVI, Complainant, v. JUDGE EUSTAQUIO Z. GACOTT, JR., Regional Trial Court, Branch 47, City of Puerto Princesa, Respondent.

QUIASON, J.:

This is an administrative complaint filed against respondent, the presiding judge of the Regional Trial Court, Branch 47, Puerto Princess City.

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Complainant, a senior police officer, charged respondent with partiality, miscarriage of justice and knowingly rendering an unjust decision in connection with the dismissal of Criminal Cases Nos. 9210 (Illegal Possession of Explosives Intended for Illegal Fishing) and 9211 (Illegal Possession of Illegally Caught Fish). The cases were consolidated for trial.chanroblesvirtualawlibrarychanrobles virtual law library

The accused moved to quash Criminal Case No. 9210 on the ground that the evidence of the prosecution was the product of a warrantless and illegal search and seizure. Respondent granted the motion in the Order dated July 9, 1992, citing the admission of the prosecution that the search and seizure was not covered by a search warrant, and that the search warrant presented in court was issued after the fact.chanroblesvirtualawlibrarychanrobles virtual law library

Complainant contended that the confiscation of the fish in the absence of a search warrant was allowed under Circular No. 130 (s. 1967) of the Office of the President.chanroblesvirtualawlibrarychanrobles virtual law library

The accused moved to quash Criminal Case No. 9211 on the ground that the information failed to charge the offense of illegal possession of fish caught by explosives for its failure to allege the element "for profit."chanrobles virtual law library

The information in said case reads as follows:

That on or about the 18th day of January, 1991, at Bgy. Mandaragat, Puerto Princesa City, Philippines and within the jurisdiction of this Honorable Court, the said accused conspiring and confederating together with John Doe, Peter Doe and William Doe whose true identities and present whereabouts are still unknown and one Virgilio Laguna, a military officer, which case was forwarded to the JAGO, did then and wilfully, unlawfully and feloniously possess illegally caught assorted fish with the use of explosives, weighing more or less Eight (8,000) Thousand Kilos.

In his comment, the City Prosecutor admitted the omission in the information of the phrase "for profit" but he claimed that said omission was a mere technicality.chanroblesvirtualawlibrarychanrobles virtual law library

In his Order dated June 25, 1992, respondent granted the Motion on the ground that the information area fatally defective, because it failed to allege two essential elements: (1) that the accused had knowledge that the fish were illegally caught with the use of explosives; and (2) that they intended to dispose of or sell the fish for profit.chanroblesvirtualawlibrarychanrobles virtual law library

The prosecution moved for the reconsideration of the order arguing: (1) that the word "knowingly" was substituted with the word "wilfully"; and (2) that P.D. No. 704 punishes the separate acts of possessing, dealing in, selling or disposing of illegally caught fish or aquatic products. The motion for reconsideration was denied.

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In his comment, respondent denied the charges against him and asserted that his orders were supported by law and evidence. He moved for the dismissal of the instant complaint.chanroblesvirtualawlibrarychanrobles virtual law library

As to the dismissal of Criminal Case No. 9210, complainant himself admitted that the search and seizure was conducted in the absence of a warrant. The search warrant produced by the complainant was issued after the search and seizure took place.chanroblesvirtualawlibrarychanrobles virtual law library

Moreover, complainant cannot justify the warrantless search and seizure by invoking Circular No. 130 (s. 1967) of the Office of the President. The circular pertains to the procedure in the confiscation of fish caught through the use of explosives. Such confiscation may be exercised only by the Commissioner of fisheries or his representatives, who can only take a sample of the fish (not to exceed one kilo) for testing if the fish were indeed caught through the use of explosives. It is only upon the determination that the fish were caught through the use of explosives when the seizure of the entire catch may be authorized. Thereafter, an appraisal of the value of the fish caught shall be made, which shall be paid to the accused should he be subsequently acquitted in the criminal case filed against him.chanroblesvirtualawlibrarychanrobles virtual law library

We note that the arresting officers failed to show compliance with the procedure prescribed by the very circular they invoke.chanroblesvirtualawlibrarychanrobles virtual law library

As to the dismissal of Criminal Case No. 9211, respondent erred in holding that the information was defective in not alleging that the offense was committed "knowingly." The element of knowledge was encompassed within the word "wilfully" used by the prosecutor.chanroblesvirtualawlibrarychanrobles virtual law library

However, the information suffers from infirmity for failure to allege the element "for profit." Section 33 (Illegal fishing, dealing in illegally caught fish or fishery/aquatic products) of Presidential Decree No. 704, as amended, provides:

. . . It shall person likewise, be unlawful for any person knowingly to possess, deal in, sell or in any manner dispose of, for profit, any fish or fishery/aquatic products which have been illegally caught, taken or gathered (Emphasis supplied).

It is true that the provision prohibits the separate acts of possessing, dealing in, selling or disposing of illegally caught fish and aquatic products, but said acts must not only be done "knowingly" but also "for profit," an essential element of the offense.chanroblesvirtualawlibrarychanrobles virtual law library

Complainant's argument - that a quashal of the complainant or information cannot be done without the prior written approval of the provincial prosecutor - is misplaced.chanroblesvirtualawlibrarychanrobles virtual law library

Complainant invokes Section 4, Rule 112 of the New Rules on Criminal Procedure, which provides:

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No complaint or information may be filed or dismissed by an investigating fiscal without the prior written approval of the provincial or city fiscal or chief state prosecutor.

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Said provision applies to the conduct of the preliminary investigation, which is within the control of the public prosecutor. It has no application in a case where the information is already filed before the proper court. In fact, the epigraph of Rule 112 is "Duty of investigating fiscal."chanrobles virtual law library

In the case at bench, the accused moved for the quashal of the criminal cases after their arraignment. As a general rule, an accused can move for the quashal of the information on any ground before arraignment (Revised Rules of Court, Rule 117, Sec. 1). However, the rule admits of some exceptions such as where there is no offense charged (Revised Rules of Court, Rule 117, Section 8; Cruz, Jr. v. Court of Appeals, 194 SCRA 145 [1991]), for what controls is not the designation of the offense charged in the information but the allegations of the constitutive elements of the offense (People v. Aczon, 225 SCRA 237 a [1993]). Any ambiguity in the information shall be resolved in favor of the accused (People v. Bondoy, 222 SCRA 216 [1993]).chanroblesvirtualawlibrarychanrobles virtual law library

Well-settled is the rule that the acts of a judge which pertain to his judicial capacity are not subject to disciplinary power, unless when they are committed with fraud, dishonesty, corruption or bad faith (Abiera v. Maceda; 233 SCRA 520 [1994]).chanroblesvirtualawlibrarychanrobles virtual law library

WHEREFORE, the complaint is DISMISSED.chanroblesvirtualawlibrarychanrobles virtual law library

SO ORDERED.

Padilla, Davide, Jr., Bellosillo and Kapunan, JJ., concur.