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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 prosecutors 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 respondents 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.

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