G.R. No. 119619 December 13, 1996

RICHARD HIZON, SILVERIO GARGAR, ERNESTO ANDAYA, NEMESIO GABO, RODRIGO ABRERA, CHEUNG TAI FOOK, SHEK CHOR LUK, EFREN DELA PENA,

JONEL AURELIO, GODOFREDO VILLAVERDE, ANGELITO DUMAYBAG, DEOMEDES ROSIL, AMADO VILLANUEVA, FRANCISCO ESTREMOS, ANGEL VILLAVERDE,

NEMESIO CASAMPOL, RICHARD ESTREMOS, JORNIE DELA PENA, JESUS MACTAN, MARLON CAMPORAZO, FERNANDO BIRING, MENDRITO CARPO, LUIS DUARTE, JOSEPH AURELIO, RONNIE JUEZAN, BERNARDO VILLACARLOS, RICARDO SALES,

MARLON ABELLA, TEODORO DELOS REYES, IGNACIO ABELLA, JOSEPH MAYONADO, JANAIRO LANGUYOD, DODONG DELOS REYES, JOLLY CABALLERO

and ROPLANDO ARCENAS, petitioners, vs.

HONORABLE COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES, respondents.

PUNO, J.:p

This is a petition for review on certiorari of the decision of the Court of Appeals in CA-G.R. CR No. 15417 affirming the decision of the Regional Trial Court, Branch 52, Palawan in Criminal Case No. 10429 convicting petitioners of the offense of illegal fishing with the use of obnoxious or poisonous substance penalized under Presidential Decree (P.D.) No. 704, the Fisheries Decree of 1975.

In an Information dated October 15, 1992, petitioners were charged with a violation of P.D. 704 committed as follows:

That on or about the 30th day of September 1992, at Brgy. San Rafael, Puerto Princesa City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused crew members and fishermen of F/B Robinson owned by First Fishermen Fishing Industries, Inc., represented by Richard Hizon, a domestic corporation duly organized under the laws of the Philippines, being then the owner, crew members and fishermen of F/B Robinson and with the use of said fishing boat, did then and there wilfully, unlawfully and feloniously the said accused conspiring and confederating together and mutually helping one another catch, take or gather or cause to be caught, taken or gathered fish or fishery

aquatic products in the coastal waters of Puerto Princess City, Palawan, with the use of obnoxious or poisonous substance (sodium cyanide), of more or less one (1) ton of assorted live fishes which were illegally caught thru the use of obnoxious/poisonous substance (sodium cyanide). 1

The following facts were established by the prosecution: In September 1992, the Philippine National Police (PNP) Maritime Command of Puerto Princesa City, Palawan received reports of illegal fishing operations in the coastal waters of the city. In response to these reports, the city mayor organized Task Force Bantay Dagat to assist the police in the detection and apprehension of violators of the laws on fishing.

On September 30, 1992 at about 2:00 in the afternoon, the Task Force Bantay Dagat reported to the PNP Maritime Command that a boat and several small crafts were fishing by "muro ami" within the shoreline of Barangay San Rafael of Puerto Princesa. The police, headed by SPO3 Romulo Enriquez, and members of the Task Force Bantay Dagat, headed by Benito Marcelo, Jr., immediately proceeded to the area and found several men fishing in motorized sampans and a big fishing boat identified as F/B Robinson within the seven-kilometer shoreline of the city. They boarded the F/B Robinson and inspected the boat with the acquiescence of the boat captain, Silverio Gargar. In the course of their inspection, the police saw two foreigners in the captain's deck. SP03 Enriquez examined their passports and found them to be mere photocopies. The police also discovered a large aquarium full of live lapu-lapu and assorted fish weighing approximately one ton at the bottom of the boat. 2 They checked the license of the boat and its fishermen and found them to be in order. Nonetheless, SP03 Enriquez brought the boat captain, the crew and the fishermen to Puerto Princesa for further investigation.

At the city harbor, members of the Maritime Command were ordered by SP03 Enriquez to guard the F/B Robinson. The boat captain and the two foreigners were again interrogated at the PNP Maritime Command office. Thereafter, an Inspection/Apprehension Report was prepared and the boat, its crew and fishermen were charged with the following violations:

1. Conducting fishing operations within Puerto Princesa coastal waters without mayor's permit;

2. Employing excess fishermen on board (Authorized 26; On board 36);

3. Two (2) Hongkong nationals on board without original passports. 3

The following day, October 1, 1992, SPO3 Enriquez directed the boat captain to get random samples of fish from the fish cage of F/B Robinson for laboratory examination. As instructed, the boat engineer, petitioner Ernesto Andaya, delivered to the Maritime Office four (4) live lapu-lapu fish inside a plastic shopping bag filled with water. SPO3 Enriquez received the fish and in the presence of the boat engineer and captain, placed them inside a large transparent plastic bag without water. He sealed the plastic with heat from a lighter. 4

The specimens were brought to the National Bureau of Investigation (NBI) sub-office in the city for examination "to determine the method of catching the same for record or evidentiary purposes." 5 They were received at the NBI office at 8:00 in the evening of the same day. The receiving clerk, Edna Capicio, noted that the fish were dead and she placed the plastic bag with the fish inside the office freezer to preserve them. Two days later, on October 3, 1992, the chief of the NBI sub-office, Onos Mangotara, certified the specimens for laboratory examination at the NBI Head Office in Manila. The fish samples were to be personally transported by Edna Capicio who was then scheduled to leave for Manila for her board examination in Criminology. 6 On October 4, 1992, Ms. Capicio, in the presence of her chief, took the plastic with the specimens from the freezer and placed them inside two shopping bags and sealed them with masking tape. She proceeded to her ship where she placed the specimens in the ship's freezer.

Capicio arrived in Manila the following day, October 5, 1992 and immediately brought the specimens to the NBI Head Office. On October 7, 1992, NBI Forensic Chemist Emilia Rosaldes conducted two tests on the fish samples and found that they contained sodium cyanide, thus:

FINDINGS:

Weight of Specimen. . . . . . 1.870 kilograms Examinations made on the above-mentioned specimen gave POSITIVE RESULTS to the test for the presence of SODIUM CYANIDE. . . .

REMARKS:

Sodium Cyanide is a violent poison. 7

In light of these findings, the PNP Maritime Command of Puerto Princesa City filed the complaint at bar against the owner and operator of the F/B Robinson, the First Fishermen Fishing Industries, Inc., represented by herein petitioner Richard Hizon, the boat captain, Silverio Gargar, the boat engineer, Ernesto Andaya, two other crew members, the two Hongkong nationals and 28 fishermen of the said boat.

Petitioners were arraigned and they pled not guilty to the charge. As defense, they claimed that they are legitimate fishermen of the First Fishermen Industries, Inc., a domestic corporation licensed to engage in fishing. They alleged that they catch fish by the hook and line method and that they had used this method for one month and a half in the waters of Cuyo Island. They related that on September 30, 1992 at about 7:00 A.M., they anchored the F/B Robinson in the east of Podiado Island in Puerto Princesa City. The boat captain and the fishermen took out and boarded their sampans to fish for their food. They were still fishing in their sampans at 4:00 P.M. when a rubber boat containing members of the PNP Maritime Command and the Task Force Bantay Dagat approached them and boarded the F/B Robinson. The policemen were in uniform while the Bantay Dagat personnel were in civilian clothes. They were all armed with guns. One of the Bantay Dagat personnel introduced himself as Commander Jun Marcelo and he inspected the boat and the boat's documents. Marcelo saw the two foreigners and asked for their passports. As their passports were photocopies, Marcelo demanded for their original. The captain explained that the original passports were with the company's head office in Manila. Marcelo angrily insisted for the originals and threatened to arrest everybody. He then ordered the captain, his crew and the fishermen to follow him to Puerto Princesa. He held the magazine of his gun and warned the captain "Sige, huwag kang tatakas, kung hindi babarilin ko kayo!" 8 The captain herded all his men into the boat and followed Marcelo and the police to Puerto Princesa.

They arrived at the city harbor at 7:45 in the evening and were met by members of the media. As instructed by Marcelo, the members of the media interviewed and took pictures of the boat and the fishermen. 9

The following day, October 1, 1992, at 8:00 in the morning, Amado Villanueva, one of the fishermen at the F/B Robinson, was instructed by a policeman guarding the boat to get five (5) fish samples from the fish cage and bring them to the pier. Villanueva inquired whether the captain knew about the order but the guard replied he was taking responsibility for it. Villanueva scooped five pieces of lapu-lapu, placed them inside a plastic bag filled with water and brought the bag to the pier. The boat engineer, Ernesto Andaya, received the fish and delivered them to the PNP Maritime Office. Nobody was in the office and Andaya waited for the apprehending officers and the boat captain. Later, one of the policemen in the office instructed him to leave the bag and hang it on a nail in the wall. Andaya did as he was told and returned to the boat at 10:00 A.M. 10

In the afternoon of the same day, the boat captain arrived at the Maritime office. He brought along a representative from their head office in Manila who showed the police and the Bantay Dagat personnel the original passports of the Hongkong nationals and other pertinent documents of the F/B Robinson and its crew. Finding the documents in order, Marcelo approached the captain and whispered to him "Tandaan mo ito, kapitan, kung makakaalis ka dito, magkikita pa rin uli tayo sa dagat, kung hindi kayo lulubog ay palulutangin ko kayo!" It was then that SP03 Enriquez informed the captain that some members of the Maritime Command, acting under his instructions, had just taken five (5) pieces of lapu-lapu from the boat. SP03 Enriquez showed the captain the fish samples. Although the captain saw only four (4) pieces of lapu-lapu, he did not utter a word of protest. 11 Under Marcelo's threat, he signed the "Certification" that he received only four (4) pieces of the fish. 12

Two weeks later, the information was filed against petitioners. The case was prosecuted against thirty-one (31) of the thirty-five (35) accused. Richard Hizon remained at large while the whereabouts of Richard Estremos, Marlon Camporazo and Joseph Aurelio were unknown.

On July 9, 1993, the trial court found the thirty one (31) petitioners guilty and sentenced them to imprisonment for a minimum of eight (8) years and one (1) day to a maximum of nine (9) years and four (4) months. The court also ordered the confiscation and forfeiture of the F/B Robinson, the 28 sampans and the ton of assorted live fishes as instruments and proceeds of the offense, thus:

WHEREFORE, premises considered, judgment is hereby rendered finding the accused SILVERIO GARGAR, ERNESTO ANDAYA, NEMESIO GABO, RODRIGO ABRERA, CHEUNG TAI FOOK, SHEK CHOR LUK, EFREN DELA PENA, JONEL AURELIO, GODOFREDO VILLAVERDE, ANGELITO DUMAYBAG, DEOMEDES ROSIL, AMADO VILLANUEVA, FRANCISCO ESTREMOS, ARNEL VILLAVERDE, NEMESIO CASAMPOL, JORNIE DELA CRUZ, JESUS MACTAN, FERNANDO BIRING, MENDRITO CARPO, LUIS DUARTE, RONNIE JUEZAN, BERNARDO VLLLACARLOS, RICARDO SALES, MARLON ABELLA, TEODORO DELOS REYES, IGNACIO ABELLA, JOSEPH MAYONADO, JANAIRO LANGUYOD, DODONG DELOS REYES, ROLANDO ARCENAS and JOLLY CABALLERO guilty beyond reasonable doubt of the crime of Illegal Fishing with the use of obnoxious or poisonous substance commonly known as sodium cyanide, committed in violation of section 33 and penalized in section 38 of Presidential Decree No. 704, as amended, and there being neither mitigating nor aggravating circumstances appreciated and applying the provisions of the Indeterminate Sentence Law, each of the aforenamed accused is sentenced to an indeterminate penalty of imprisonment ranging from a minimum of EIGHT (8) YEARS and ONE (1) DAY to a maximum of NINE (9) YEARS and FOUR (4) MONTHS and to pay the costs.

Pursuant to the provisions of Article 45, in relation to the second sentence of Article 10 of the Revised Penal Code, as amended:

a) Fishing Boat (F/B) Robinson;

b) The 28 motorized fiberglass sampans; and

c) The live fishes in the fish cages installed in the F/B Robinson, all of which have been respectively shown to be tools or instruments and proceeds of the offense, are hereby ordered confiscated and declared forfeited in favor of the government.

SO ORDERED. 13

On appeal, the Court of Appeals affirmed the decision of the trial court. Hence, this petition.

Petitioners contend that:

I

THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT THE MERE "POSITIVE RESULTS TO THE TEST FOR THE PRESENCE OF SODIUM CYANIDE" IN THE FISH SPECIMEN, ALBEIT ILLEGALLY SEIZED ON THE OCCASION OF A WARRANTLESS SEARCH AND ARREST, IS ADMISSIBLE AND SUFFICIENT BASIS FOR THE PETITIONERS' CONVICTION OF THE CRIME OF ILLEGAL FISHING.

II

THE HONORABLE COURT OF APPEALS ERRED IN NOT HOLDING THAT THE STATUTORY PRESUMPTION OF GUILT UNDER SEC. 33 OF PRESIDENTIAL DECREE NO. 704 CANNOT PREVAIL AGAINST THE CONSTITUTIONAL PRESUMPTION OF INNOCENCE, SUCH THAT THE GRAVAMEN OF THE OFFENSE OF ILLEGAL FISHING MUST STILL BE PROVED BEYOND REASONABLE DOUBT.

III

THE HONORABLE COURT OF APPEALS ERRED IN NOT REVERSING THE JUDGMENT OF THE TRIAL COURT AND ACQUITTING THE PETITIONERS. 14

The Solicitor General submitted a "Manifestation in Lieu of Comment" praying for petitioners' acquittal. 15

The petitioners, with the concurrence of the Solicitor General, primarily question the admissibility of the evidence against petitioners in view of the warrantless search of the fishing boat and the subsequent arrest of petitioners. More concretely, they contend that the NBI finding of sodium cyanide in the fish specimens should not have been admitted and considered by the trial court because the fish samples were seized from the F/B Robinson without a search warrant.

Our Constitution proscribes search and seizure and the arrest of persons without a judicial warrant. 16 As a general rule, any evidence obtained without a judicial

warrant is inadmissible for any purpose in any proceeding. The rule is, however, subject to certain exceptions. Some of these are: 17 (1) a search incident to a lawful of arrest; 18 (2) seizure of evidence in plain view; (3) search of a moving motor vehicle; 19 and (4) search in violation of customs laws. 20

Search and seizure without search warrant of vessels and aircrafts for violations of customs laws have been the traditional exception to the constitutional requirement of a search warrant. It is rooted on the recognition that a vessel and an aircraft, like motor vehicles, can be quickly moved out of the locality or jurisdiction in which the search warrant must be sought and secured. Yielding to this reality, judicial authorities have not required a search warrant of vessels and aircrafts before their search and seizure can be constitutionally effected. 21

The same exception ought to apply to seizures of fishing vessels and boats breaching our fishery laws. These vessels are normally powered by high-speed motors that enable them to elude arresting ships of the Philippine Navy, the Coast Guard and other government authorities enforcing our fishery laws. 22

We thus hold as valid the warrantless search on the F/B Robinson, a fishing boat suspected of having engaged in illegal fishing. The fish and other evidence seized in the course of the search were properly admitted by the trial court. Moreover, petitioners failed to raise the issue during trial and hence, waived their right to question any irregularity that may have attended the said search and seizure. 23

Given the evidence admitted by the trial court, the next question now is whether petitioners are guilty of the offense of illegal fishing with the use of poisonous substances. Again, the petitioners, joined by the Solicitor General, submit that the prosecution evidence cannot convict them.

We agree.

Petitioners were charged with illegal fishing penalized under sections 33 and 38 of P.D. 704 24 which provide as follows:

Sec. 33. Illegal fishing, illegal possession of explosives intended for illegal fishing; dealing in illegally caught fish or fishery/aquatic products. It shall be unlawful for any person to catch, take or gather or cause to be caught, taken or gathered fish or

fishery/aquatic products in Philippine waters with the use of explosives, obnoxious or poisonous substance, or by the use of electricity as defined in paragraphs (l), (m) and (d), respectively, of section 3 hereof: Provided, That mere possession of such explosives with intent to use the same for illegal fishing as herein defined shall be punishable as hereinafter provided: Provided, That the Secretary may, upon recommendation of the Director and subject to such safeguards and conditions he deems necessary, allow for research, educational or scientific purposes only, the use of explosives, obnoxious or poisonous substance or electricity to catch, take or gather fish or fishery/aquatic products in the specified area: Provided, further, That the use of chemicals to eradicate predators in fishponds in accordance with accepted scientific fishery practices without causing deleterious effects in neighboring waters shall not be construed as the use of obnoxious or poisonous substance within the meaning of this section: Provided, finally, That the use of mechanical bombs for killing whales, crocodiles, sharks or other large dangerous fishes, may be allowed, subject to the approval of the Secretary.

It shall, 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.

The discovery of dynamite, other explosives and chemical compounds containing combustible elements, or obnoxious or poisonous substance, or equipment or device for electric fishing in any fishing boat or in the possession of a fisherman shall constitute a presumption that the same were used for fishing in violation of this Decree, and the discovery in any fishing boat of fish caught or killed by the use of explosives, obnoxious or poisonous substance or by electricity shall constitute a presumption that the owner, operator or fisherman were fishing with the use of explosives, obnoxious or poisonous substance or electricity.

xxx xxx xxx

Sec. 38. Penalties. (a) For illegal fishing and dealing in illegally caught fish or fishery/aquatic products. Violation of Section 33 hereof shall be punished as follows:

xxx xxx xxx

(2) By imprisonment from eight (8) to ten (10) years, if obnoxious or poisonous substances are used:Provided, That if the use of such substances results 1) in physical injury to any person, the penalty shall be imprisonment from ten (10) to twelve (12) years, or 2) in the loss of human life, then the penalty shall be imprisonment from twenty (20) years to life or death;

xxx xxx xxx 25

The offense of illegal fishing is committed when a person catches, takes or gathers or causes to be caught, taken or gathered fish, fishery or aquatic products in Philippine waters with the use of explosives, electricity, obnoxious or poisonous substances. The law creates a presumption that illegal fishing has been committed when: (a) explosives, obnoxious or poisonous substances or equipment or device for electric fishing are found in a fishing boat or in the possession of a fisherman; or (b) when fish caught or killed with the use of explosives, obnoxious or poisonous substances or by electricity are found in a fishing boat. Under these instances, the boat owner, operator or fishermen are presumed to have engaged in illegal fishing.

Petitioners contend that this presumption of guilt under the Fisheries Decree violates the presumption of innocence guaranteed by the Constitution. 26 As early as 1916, this Court has rejected this argument by holding that: 27

In some States, as well as in England, there exist what are known as common law offenses. In the Philippine Islands no act is a crime unless it is made so by statute. The state having the right to declare what acts are criminal, within certain well-defined limitations, has the right to specify what act or acts shall constitute a crime, as well as what proof shall constitute prima facie evidence of guilt, and then to put upon the defendant the burden of showing that such act or

acts are innocent and are not committed with any criminal intent or intention. 28

The validity of laws establishing presumptions in criminal cases is a settled matter. It is generally conceded that the legislature has the power to provide that proof of certain facts can constitute prima facie evidence of the guilt of the accused and then shift the burden of proof to the accused provided there is a rational connection between the facts proved and the ultimate fact presumed. 29 To avoid any constitutional infirmity, the inference of one from proof of the other must not be arbitrary and unreasonable. 30 In fine, the presumption must be based on facts and these facts must be part of the crime when committed. 31

The third paragraph of section 33 of P.D. 704 creates a presumption of guilt based on facts proved and hence is not constitutionally impermissible. It makes the discovery of obnoxious or poisonous substances, explosives, or devices for electric fishing, or of fish caught or killed with the use of obnoxious and poisonous substances, explosives or electricity in any fishing boat or in the possession of a fisherman evidence that the owner and operator of the fishing boat or the fisherman had used such substances in catching fish. The ultimate fact presumed is that the owner and operator of the boat or the fisherman were engaged in illegal fishing and this presumption was made to arise from the discovery of the substances and the contaminated fish in the possession of the fisherman in the fishing boat. The fact presumed is a natural inference from the fact proved. 32

We stress, however, that the statutory presumption is merely prima facie. 33 It can not, under the guise of regulating the presentation of evidence, operate to preclude the accused from presenting his defense to rebut the main fact presumed. 34 At no instance can the accused be denied the right to rebut the presumption. 35 thus:

The inference of guilt is one of fact and rests upon the common experience of men. But the experience of men has taught them that an apparently guilty possession may be explained so as to rebut such an inference and an accused person may therefore put witnesses on the stand or go on the witness stand himself to explain his possession, and any reasonable explanation of his possession, inconsistent with his guilty connection with the commission of the

crime, will rebut the inference as to his guilt which the prosecution seeks to have drawn from his guilty possession of the stolen goods. 36

We now review the evidence to determine whether petitioners have successfully rebutted this presumption. The facts show that on November 13, 1992, after the Information was filed in court and petitioners granted bail, petitioners moved that the fish specimens taken from the F/B Robinson be reexamined. 37 The trial court granted the motion. 38 As prayed for, a member of the PNP Maritime Command of Puerto Princesa, in the presence of authorized representatives of the F/B Robinson, the NBI and the local Fisheries Office, took at random five (5) live lapu-lapu from the fish cage of the boat. The specimens were packed in the usual manner of transporting live fish, taken aboard a commercial flight and delivered by the same representatives to the NBI Head Office in Manila for chemical analysis.

On November 23, 1992, Salud Rosales, another forensic chemist of the NBI in Manila conducted three (3) tests on the specimens and found the fish negative for the presence of sodium cyanide, 39 thus:

Gross weight of specimen = 3.849 kg.

Examinations made on the above-mentioned specimens gave NEGATIVE RESULTS to the tests for the presence of SODIUM CYANIDE. 40

The Information charged petitioners with illegal fishing "with the use of obnoxious or poisonous substance (sodium cyanide), of more or less one (1) ton of assorted live fishes" There was more or less one ton of fishes in the F/B Robinson's fish cage. It was from this fish cage that the four dead specimens examined on October 7, 1992 and the five specimens examined on November 23, 1992 were taken. Though all the specimens came from the same source allegedly tainted with sodium cyanide, the two tests resulted in conflicting findings. We note that after its apprehension, the F/B Robinson never left the custody of the PNP Maritime Command. The fishing boat was anchored near the city harbor and was guarded by members of the Maritime Command. 41 It was later turned over to the custody of the Philippine Coast Guard Commander of Puerto Princesa City. 42

The prosecution failed to explain the contradictory findings on the fish samples and this omission raises a reasonable doubt that the one ton of fishes in the cage were caught with the use of sodium cyanide.

The absence of cyanide in the second set of fish specimens supports petitioners' claim that they did not use the poison in fishing. According to them, they caught the fishes by the ordinary and legal way, i.e., by hook and line on board their sampans. This claim is buttressed by the prosecution evidence itself. The apprehending officers saw petitioners fishing by hook and line when they came upon them in the waters of Barangay San Rafael. One of the apprehending officers, SPO1 Demetrio Saballuca, testified as follows:

ATTY. TORREFRANCA ON CROSS-EXAMINATION:

Q: I get your point therefore, that the illegal fishing supposedly conducted at San Rafael is a moro ami type of fishing [that] occurred into your mind and that was made to understand by the Bantay Dagat personnel?

A: Yes, sir.

Q: Upon reaching the place, you and the pumpboat, together with the two Bantay Dagat personnel were SPO3 Romulo Enriquez and Mr. Benito Marcelo and SPO1 Marzan, you did not witness that kind of moro ami fishing, correct?

A: None, sir.

Q: In other words, there was negative activity of moro ami type of fishing on September 30, 1992 at 4:00 in the afternoon at San Rafael?

A: Yes, sir.

Q: And what you saw were 5 motorized sampans with fishermen each doing a hook and line fishing type?

A: Yes, sir. More or less they were five.

Q: And despite the fact you had negative knowledge of this moro ami type of fishing, SP03 Enriquez together with Mr. Marcelo boarded the vessel just the same?

A: Yes, sir.

xxx xxx xxx 43

The apprehending officers who boarded and searched the boat did not find any sodium cyanide nor any poisonous or obnoxious substance. Neither did they find any trace of the poison in the possession of the fishermen or in the fish cage itself. An Inventory was prepared by the apprehending officers and only the following items were found on board the boat:

ITEMS QUANTITY REMARKS

F/B Robinson (1) unit operating

engine (1) unit ICE-900-BHP

sampans 28 units fiberglass

outboard motors 28 units operating

assorted fishes more or less 1 ton live

hooks and lines assorted

xxx xxx xxx 44

We cannot overlook the fact that the apprehending officers found in the boat assorted hooks and lines for catching fish. 45 For this obvious reason, the Inspection/Apprehension Report prepared by the apprehending officers immediately after the search did not charge petitioners with illegal fishing, much less illegal fishing with the use of poison or any obnoxious substance. 46

The only basis for the charge of fishing with poisonous substance is the result of the first NBI laboratory test on the four fish specimens. Under the circumstances of the case, however, this finding does not warrant the infallible conclusion that

the fishes in the F/B Robinson, or even the same four specimens, were caught with the use of sodium cyanide.

Prosecution witness SPO1 Bernardino Visto testified that for the first laboratory test, boat engineer Ernesto Andaya did not only get four (4) samples of fish but actually got five (5) from the fish cage of the F/B Robinson. 47The Certification that four (4) fish samples were taken from the boat shows on its face the number of pieces as originally "five (5)" but this was erased with correction fluid and "four (4)" written over it. 48 The specimens were taken, sealed inside the plastic bag and brought to Manila by the police authorities in the absence of petitioners or their representative. SP02 Enriquez testified that the same plastic bag containing the four specimens was merely sealed with heat from a lighter. 49 Emilia Rosales, the NBI forensic chemist who examined the samples, testified that when she opened the package, she found the two ends of the same plastic bag knotted. 50 These circumstances as well as the time interval from the taking of the fish samples and their actual examination 51 fail to assure the impartial mind that the integrity of the specimens had been properly safeguarded.

Apparently, the members of the PNP Maritime Command and the Task Force Bantay Dagat were the ones engaged in an illegal fishing expedition. As sharply observed by the Solicitor General, the report received by the Task Force Bantay Dagat was that a fishing boat was fishing illegally through "muro ami" on the waters of San Rafael. "Muro ami" according to SPO1 Saballuca is made with "the use of a big net with sinkers to make the net submerge in the water with the fishermen surround[ing] the net." 52 This method of fishing needs approximately two hundred (200) fishermen to execute. 53 What the apprehending officers instead discovered were twenty eight (28) fishermen in their sampans fishing by hook and line. The authorities found nothing on the boat that would have indicated any form of illegal fishing. All the documents of the boat and the fishermen were in order. It was only after the fish specimens were tested, albeit under suspicious circumstances, that petitioners were charged with illegal fishing with the use of poisonous substances.

IN VIEW WHEREOF, the petition is granted and the decision of the Court of Appeals in CA-G.R. CR No. 15417 is reversed and set aside. Petitioners are acquitted of the crime of illegal fishing with the use of poisonous substances defined under Section 33 of Republic Act No. 704, the Fisheries Decree of 1975. No costs. SO ORDERED.

[G.R. No. 68166. February 12, 1997]

HEIRS OF EMILIANO NAVARRO, petitioner, vs. INTERMEDIATE APPELLATE COURT AND HEIRS OF SINFOROSO PASCUAL, respondents.

D E C I S I O N

HERMOSISIMA, JR., J.:

Unique is the legal question visited upon the claim of an applicant in a Land Registration case by oppositors thereto, the Government and a Government lessee, involving as it does ownership of land formed by alluvium.

The applicant owns the property immediately adjoining the land sought to be registered. His registered property is bounded on the east by the Talisay River, on the west by the Bulacan River, and on the north by the Manila Bay. The Talisay River and the Bulacan River flow down towards the Manila Bay and act as boundaries of the applicant's registered land on the east and on the west.

The land sought to be registered was formed at the northern tip of the applicant's land. Applicant's registered property is bounded on the north by the Manila Bay.

The issue: May the land sought to be registered be deemed an accretion in the sense that it naturally accrues in favor of the riparian owner or should the land be considered as foreshore land?

Before us is a petition for review of: (1) the decision[1] and (2) two subsequent resolutions[2] of the Intermediate Appellate Court[3] (now the Court of Appeals) in Land Registration Case No. N-84,[4] the application over which was filed by private respondents' predecessor-in-interest, Sinforoso Pascual, now deceased, before the Court of First Instance[5] (now the Regional Trial Court) of Balanga, Bataan.

There is no dispute as to the following facts:

On October 3, 1946, Sinforoso Pascual, now deceased, filed an application for foreshore lease covering a tract of foreshore land in Sibocon, Balanga, Bataan, having an area of approximately seventeen (17) hectares. This application was denied on January 15, 1953. So was his motion for reconsideration.

Subsequently, petitioners' predecessor-in-interest, also now deceased, Emiliano Navarro, filed a fishpond application with the Bureau of Fisheries covering twenty five (25) hectares of foreshore land also in Sibocon, Balanga, Bataan. Initially, such application was denied by the Director of Fisheries on the ground that the property formed part of the public domain. Upon motion for reconsideration, the Director of Fisheries, on May 27, 1988, gave due course to his application but only to the extent of seven (7) hectares of the property as may be certified by the Bureau of Forestry as suitable for fishpond purposes.

The Municipal Council of Balanga, Bataan, had opposed Emiliano Navarro's application. Aggrieved by the decision of the Director of Fisheries, it appealed to the Secretary of Natural Resources who, however, affirmed the grant. The then Executive Secretary, acting in behalf of the President of the Philippines, similarly affirmed the grant.

On the other hand, sometime in the early part of 1960, Sinforoso Pascual filed an application to register and confirm his title to a parcel of land, situated in Sibocon, Balanga, Bataan, described in Plan Psu-175181 and said to have an area of 146,611 square meters. Pascual claimed that this land is an accretion to his property, situated in Barrio Puerto Rivas, Balanga, Bataan, and covered by Original Certificate of Title No. 6830. It is bounded on the eastern side by the Talisay River, on the western side by the Bulacan River, and on the northern side by the Manila Bay. The Talisay River as well as the Bulacan River flow downstream and meet at the Manila Bay thereby depositing sand and silt on Pascual's property resulting in an accretion thereon. Sinforoso Pascual claimed the accretion as the riparian owner.

On March 25, 1960, the Director of Lands, represented by the Assistant Solicitor General, filed an opposition thereto stating that neither Pascual nor his predecessors-in-interest possessed sufficient title to the subject property, the same being a portion of the public domain and, therefore, it belongs to the Republic of the Philippines. The Director of Forestry, through the Provincial Fiscal, similarly opposed Pascual's application for the same reason as that advanced by the Director of Lands. Later on, however, the Director of Lands withdrew his opposition. The Director of Forestry become the sole oppositor.

On June 2, 1960, the court a quo issued an order of general default excepting the Director of Lands and the Director of Forestry.

Upon motion of Emiliano Navarro, however, the order of general default was lifted and, on February 13, 1961, Navarro thereupon filed an opposition to Pascual's application. Navarro claimed that the land sought to be registered has always been part of the public domain, it being a part of the foreshore of Manila Bay; that he was a lessee and in possession of a part of the subject property by virtue of a fishpond permit issued by the Bureau of Fisheries and confirmed by the Office of the President; and that he had already converted the area covered by the lease into a fishpond.

During the pendency of the land registration case, that is, on November 6, 1960, Sinforoso Pascual filed a complaint for ejectment against Emiliano Navarro, one Marcelo Lopez and their privies, alleged by Pascual to have unlawfully claimed and possessed, through stealth, force and strategy, a portion of the subject property covered by Plan Psu-175181. The defendants in the case were alleged to have built a provisional dike thereon: thus they have thereby deprived Pascual of the premises sought to be registered. This, notwithstanding repeated demands for defendants to vacate the property.

The case was decided adversely against Pascual. Thus, Pascual appealed to the Court of First Instance (now Regional Trial Court) of Balanga, Bataan, the appeal having been docketed as Civil Case No. 2873. Because of the similarity of the parties and the subject matter, the appealed case for ejectment was consolidated with the land registration case and was jointly tried by the court a quo.

During the pendency of the trial of the consolidated cases, Emiliano Navarro died on November 1, 1961 and was substituted by his heirs, the herein petitioners.

Subsequently, on August 26, 1962, Pascual died and was substituted by his heirs, the herein private respondents.

On November 10, 1975, the court a quo rendered judgment finding the subject property to be foreshore land and, being a part of the public domain, it cannot be the subject of land registration proceedings.

The decision's dispositive portion reads:

"WHEREFORE, judgment is rendered:

(1) Dismissing plaintiff [private respondent] Sinforoso Pascual's complaint for ejectment in Civil Case No. 2873;

(2) Denying the application of Sinforoso Pascual for land registration over the land in question; and

(3) Directing said Sinforoso Pascual, through his heirs, as plaintiff in Civil Case No. 2873 and as applicant in Land Registration Case No. N-84 to pay costs in both instances."[6]

The heirs of Pascual appealed and, before the respondent appellate court, assigned the following errors:

"1. The lower court erred in not finding the land in question as an accretion by the action of the Talisay and Bulacan Rivers to the land admittedly owned by applicants-appellants [private respondents].

2. The lower court erred in holding that the land in question is foreshore land.

3. The lower court erred in not ordering the registration of the and is controversy in favor of applicants-appellants [private respondents].

4. The lower court erred in not finding that the applicants-appellants [private respondents] are entitled to eject the oppositor-appellee [petitioners]."[7]

On appeal, the respondent court reversed the findings of the court a quo and granted the petition for registration of the subject property but excluding therefrom fifty (50) meters from corner 2 towards corner 1; and fifty meters (50) meters from corner 5 towards corner 6 of the Psu-175181.

The respondent appellate court explained the reversal in this wise:

"The paramount issue to be resolved in this appeal as set forth by the parties in their respective briefs is whether or not the land sought to be registered is accretion or foreshore land, or, whether or not said land was formed by the action of the two rivers of Talisay and Bulacan or by the action of the Manila Bay. If formed by the action of the Talisay and Bulacan rivers, the subject land is accretion but if formed by the action of the Manila Bay then it is foreshore land.

xxx

It is undisputed that applicants-appellants [private respondents] owned the land immediately adjoining the land sought to be registered. Their property which is covered by OCT No. 6830 is bounded on the east by the Talisay River, on the west by the Bulacan River, and on the north by the Manila Bay. The Talisay and Bulacan rivers come from inland flowing downstream towards the Manila Bay. In other words, between the Talisay River and the Bulacan River is the property of applicants with both rivers acting as the boundary to said land and the flow of both rivers meeting and emptying into the Manila Bay. The subject land was formed at the tip or apex of appellants' [private respondents'] land adding thereto the land now sought to be registered.

This makes this case quite unique because while it is undisputed that the subject land is immediately attached to appellants' [private respondents'] land and forms the tip thereof, at the same time, said land immediately faces the Manila Bay which is part of the sea. We can understand therefore the confusion this case might have caused the lower court, faced as it was with the uneasy problem of deciding whether or not the subject land was formed by the action of the two rivers or by the action of the sea. Since the subject land is found at the shore of the Manila Bay facing appellants' [private respondents'] land, it would be quite easy to conclude that it is foreshore and therefore part of the patrimonial property of the State as the lower court did in fact rule x x x .

xxx

It is however undisputed that appellants' [private respondents'] land lies between these two rivers and it is precisely appellants' [private respondents'] land which acts as a barricade preventing these two rivers to meet. Thus, since the flow of the two rivers is downwards to the Manila Bay the sediments of sand and silt are deposited at their mouths.

It is, therefore, difficult to see how the Manila Bay could have been the cause of the deposit thereat for in the natural course of things, the waves of the sea eat the land on the shore, as they suge [sic] inland. It would not therefore add anything to the land but instead subtract from it due to the action of the waves and the wind. It is then more logical to believe that the two rivers flowing towards the bay emptied their cargo of sand, silt and clay at their mouths, thus causing appellants' [private respondents'] land to accumulate therein.

However, our distinguished colleage [sic], Mr. Justice Serrano, do [sic] not seem to accept this theory and stated that the subject land arose only when x x x Pascual planted 'palapat' and 'bakawan' trees thereat to serve as a boundary or strainer. But we do not see how this act of planting trees by Pascual would explain how the land mass came into being. Much less will it prove that the same came from the sea. Following Mr. Justice Serrano's argument that it were the few trees that acted as strainers or blocks, then the land that grew would have stopped at the place where the said trees were planted. But this is not so because the land mass went far beyond the boundary, or where the trees were planted.

On the other hand, the picture-exhibits of appellants' [private respondents'] clearly show that the land that accumulated beyond the so-called boundary, as well as the entire area being applied for is dry land, above sea level, and bearing innumerable trees x x x. The existence of vegetation on the land could only confirm that the soil thereat came from inland rather than from the sea, for what could the sea bring to the shore but sand, pebbles, stones, rocks and corrals? On the other hand, the two rivers would be bringing soil on their downward flow which they brought along from the eroded mountains, the lands along their path, and dumped them all on the northern portion of appellants' [private respondents'] land.

In view of the foregoing, we have to deviate from the lower court's finding. While it is true that the subject land is found at the shore of the Manila Bay fronting appellants' [private respondents'] land, said land is not foreshore but an accretion from the action of the Talisay and Bulacan rivers. In fact, this is exactly what the Bureau of Lands found out, as shown in the following report of the Acting Provincial Officer, Jesus M. Orozco, to wit:

'Upon ocular inspection of the land subject of this registration made on June 11, 1960, it was found out that the said land is x x x sandwitched [sic] by two big rivers x x x These two rivers bring down considerable amount of soil and sediments during floods every year thus raising the soil of the land adjoining the private property of the applicant [private respondents]. About four-fifth [sic] of the area applied for is now dry land whereon are planted palapat trees thickly growing thereon. It is the natural action of these two rivers that has caused the formation of said land x x x subject of this registration case. It has been formed, therefore, by accretion. And having been formed by accretion, the said land may

be considered the private property of the riparian owner who is the applicant herein [private respondents'] x x x .

In view of the above, the opposition hereto filed by the government should be withdrawn, except for the portion recommended by the land investigator in his report dated May 2, 1960, to be excluded and considered foreshore. x x x'

Because of this report, no less than the Solicitor General representing the Bureau of Lands withdrew his opposition dated March 25, 1960, and limited 'the same to the northern portion of the land applied for, compromising a strip 50 meters wide along the Manila Bay, which should be declared public land as part of the foreshore' x x x.[8]

Pursuant to the aforecited decision, the respondent appellate court ordered the issuance of the corresponding decree of registration in the name of private respondents and the reversion to private respondents of the possession of the portion of the subject property included in Navarro's fishpond permit.

On December 20, 1978, petitioners filed a motion for reconsideration of the aforecited decision. The Director of Forestry also moved for the reconsideration of the same decision. Both motions were opposed by private respondents on January 27, 1979.

On November 21, 1980, respondent appellate court promulgated a resolution denying the motion for reconsideration filed by the Director of Forestry. It, however, modified its decision, to read, viz:

"(3). Ordering private oppositors Heirs of Emiliano Navarro to vacate that portion included in their fishpond permit covered by Plan Psu-175181 and hand over possession of said portion to applicants-appellants, if the said portion is not within the strip of land fifty (50) meters wide along Manila Bay on the northern portion of the land subject of the registration proceedings and which area is more particularly referred to as fifty (50) meters from corner 2 towards corner 1; and fifty (50) meters from corner 5 towards corner 6 of Plan Psu-175181. x x x[9]

On December 15, 1980, we granted the Solicitor General, acting as counsel for the Director of Forestry, an extension of time within which to file in this court, a petition for review of the decision dated November 29, 1978 of the respondent appellate court and of the aforecited resolution dated November 21, 1980.

Thereafter, the Solicitor General, in behalf of the Director of Forestry, filed a petition for review entitled, "The Director of Forestry vs. the Court of Appeals."[10] We, however, denied the same in a minute resolution dated July 20, 1981, such petition having been prematurely filed at a time when the Court of Appeals was yet to resolve petitioners' pending motion to set aside the resolution dated November 21, 1980.

On October 9, 1981, respondent appellate court denied petitioners' motion for reconsideration of the decision dated November 29, 1978.

On October 17, 1981, respondent appellate court made an entry of judgment stating that the decision dated November 29, 1978 had become final and executory as against herein petitioners as oppositors in L.R.C. Case No. N-84 and Civil Case No. 2873 of the Court of First Instance (now the Regional Trial Court) of Balanga, Bataan.

On October 26, 1981, a second motion for reconsideration of the decision dated November 29, 1978 was filed by petitioners' new counsel.

On March 26, 1982, respondent appellate court issued a resolution granting petitioners' request for leave to file a second motion for reconsideration.

On July 13, 1984, after hearing, respondent appellate court denied petitioners' second motion for reconsideration on the ground that the same was filed out of time, citing Rule 52, Section 1 of the Rules of Court which provides that a motion for reconsideration shall be made ex-parte and filed within fifteen (15) days from the notice of the final order or judgment.

Hence this petition where the respondent appellate court is imputed to have palpably erred in appreciating the facts of the case and to have gravely misapplied statutory and case law relating to accretion, specifically, Article 457 of the Civil Code.

We find merit in the petition.

The disputed property was brought forth by both the withdrawal of the waters of Manila Bay and the accretion formed on the exposed foreshore land by the action of the sea which brought soil and sand sediments in turn trapped by the palapat and bakawan trees planted thereon by petitioner Sulpicio Pascual in 1948.

Anchoring their claim of ownership on Article 457 of the Civil Code, private respondents vigorously argue that the disputed 14-hectare land is an accretion

caused by the joint action of the Talisay and Bulacan Rivers which run their course on the eastern and western boundaries, respectively, of private respondents' own tract of land.

Accretion as a mode of acquiring property under said Article 457, requires the concurrence of the following requisites: (1) that the accumulation of soil or sediment be gradual and imperceptible; (2) that it be the result of the action of the waters of the river; and (3) that the land where the accretion takes place is adjacent to the bank of the river.[11] Accretion is the process whereby the soil is deposited, while alluvium is the soil deposited on the estate fronting the river bank;[12] the owner of such estate is called the riparian owner. Riparian owners are, strictly speaking, distinct from littoral owners, the latter being owners of lands bordering the shore of the sea or lake or other tidal waters.[13] The alluvium, by mandate of Article 457 of the Civil Code, is automatically owned by the riparian owner from the moment the soil deposit can be seen[14] but is not automatically registered property, hence, subject to acquisition through prescription by third persons.[15]

Private respondents' claim of ownership over the disputed property under the principle of accretion, is misplaced.

First, the title of private respondents' own tract of land reveals its northeastern boundary to be Manila Bay. Private respondents' land, therefore, used to adjoin, border or front the Manila Bay and not any of the two rivers whose torrential action, private respondents insist, is to account for the accretion on their land. In fact, one of the private respondents, Sulpicio Pascual, testified in open court that the waves of Manila Bay used to hit the disputed land being part of the bay's foreshore but, after he had planted palapat and bakawan trees thereon in 1948, the land began to rise.[16]

Moreover, there is no dispute as to the location of: (a) the disputed land; (b) private respondents' own tract of land; (c) the Manila Bay; and, (d) the Talisay and Bulacan Rivers. Private respondents' own land lies between the Talisay and Bulacan Rivers; in front of their land on the northern side lies now the disputed land where before 1948, there lay the Manila Bay. If the accretion were to be attributed to the action of either or both of the Talisay and Bulacan Rivers, the alluvium should have been deposited on either or both of the eastern and western boundaries of private respondents' own tract of land, not on the northern portion thereof which is adjacent to the Manila Bay. Clearly lacking,

thus, is the third requisite of accretion, which is, that the alluvium is deposited on the portion of claimant's land which is adjacent to the river bank.

Second, there is no dispute as to the fact that private respondents' own tract of land adjoins the Manila Bay. Manila Bay is obviously not a river, and jurisprudence is already settled as to what kind of body of water the Manila Bay is. It is to be remembered that we held that:

"Appellant next contends that x x x Manila Bay cannot be considered as a sea. We find said contention untenable. A bay is part of the sea, being a mere indentation of the same:

'Bay. An opening into the land where the water is shut in on all sides except at the entrance; an inlet of the sea; an arm of the sea, distinct from a river, a bending or curbing of the shore of the sea or of a lake.' 7 C.J. 1013-1014."[17]

The disputed land, thus, is an accretion not on a river bank but on a sea bank, or on what used to be the foreshore of Manila Bay which adjoined private respindents' own tract of land on the northern side. As such, the applicable law is not Article 457 of the Civil Code but Article 4 of the Spanish Law of Waters of 1866.

The process by which the disputed land was formed, is not difficult to discern from the facts of the case. As the trial court correctly observed:

"A perusal of the survey plan x x x of the land subject matter of these cases shows that on the eastern side, the property is bounded by Talisay River, on the western side by Bulacan River, on the southern side by Lot 1436 and on the northern side by Manila Bay. It is not correct to state that the Talisay and Bulacan Rivers meet a certain portion because the two rivers both flow towards Manila Bay. The Talisay River is straight while the Bulacan River is a little bit meandering and there is no portion where the two rivers meet before they end up at Manila Bay. The land which is adjacent to the property belonging to Pascual cannot be considered an accretion [caused by the action of the two rivers].

Applicant Pascual x x x has not presented proofs to convince the Court that the land he has applied for registration is the result of the settling down on his registered land of soil, earth or other deposits so as to be rightfully be considered

as an accretion [caused by the action of the two rivers]. Said Art. 457 finds no applicability where the accretion must have been caused by action of the bay."[18]

The conclusion formed by the trial court on the basis of the foregoing observation is that the disputed land is part of the foreshore of Manila Bay and therefore, part of the public domain. The respondent appellate court, however, perceived the fact that petitioners' own land lies between the Talisay and Bulacan Rivers, to be basis to conclude that the disputed land must be an accretion formed by the action of the two rivers because private respondents' own land acted as a barricade preventing the two rivers to meet and that the current of the two rivers carried sediments of sand and silt downwards to the Manila Bay which accumulated somehow to a 14-hectare land. These conclusions, however, are fatally incongruous in the light of the one undisputed critical fact: the accretion was deposited, not on either the eastern or western portion of private respondents' land where a river each runs, but on the northern portion of petitioners' land which adjoins the Manila Bay. Worse, such conclusions are further eroded of their practical logic and consonance with natural experience in the light of Sulpicio Pascual's admission as to having planted palapat and bakawan trees on the northern boundary of their own land. In amplification of this, plainly more reasonable and valid are Justice Mariano Serrano's observations in his dissenting opinion when he stated that:

"As appellants' (titled) land x x x acts as a barricade that prevents the two rivers to meet, and considering the wide expanse of the boundary between said land and the Manila Bay, measuring some 593.00 meters x x x it is believed rather farfetched for the land in question to have been formed through 'sediments of sand and salt [sic] . . . deposited at their [rivers'] mouths.' Moreover, if 'since the flow of the two rivers is downwards to the Manila Bay the sediments of sand and silt are deposited at their mouths,' why then would the alleged cargo of sand, silt and clay accumulate at the northern portion of appellants' titled land facing Manila Bay instead of merely at the mouths and banks of these two rivers? That being the case, the accretion formed at said portion of appellants' titled [land] was not caused by the current of the two rivers but by the action of the sea (Manila Bay) into which the rivers empty.

The conclusion x x x is not supported by any reference to the evidence which, on the contrary, shows that the disputed land was formed by the action of the sea. Thus, no less than Sulpicio Pascual, one of the heirs of the original applicant,

testified on cross-examination that the land in dispute was part of the shore and it was only in 1948 that he noticed that the land was beginning to get higher after he had planted trees thereon in 1948. x x x

x x x it is established that before 1948 sea water from the Manila Bay at high tide could reach as far as the dike of appellants' fishpond within their titled property, which dike now separates this titled property from the land in question. Even in 1948 when appellants had already planted palapat and bakawan trees in the land involved, inasmuch as these trees were yet small, the waves of the sea could still reach the dike. This must be so because in x x x the survey plan of the titled property approved in 1918, said titled land was bounded on the north by Manila Bay. So Manila Bay was adjacent to it on the north. It was only after the planting of the aforesaid trees in 1948 that the land in question began to rise or to get higher in elevation.

The trees planted by appellants in 1948 became a sort of strainer of the sea water and at the same time a kind of block to the strained sediments from being carried back to the sea by the very waves that brought them to the former shore at the end of the dike, which must have caused the shoreline to recede and dry up eventually raising the former shore leading to the formation of the land in question."[19]

In other words, the combined and interactive effect of the planting of palapat and bakawan trees, the withdrawal of the waters of Manila Bay eventually resulting in the drying up of its former foreshore, and the regular torrential action of the waters of Manila Bay, is the formation of the disputed land on the northern boundary of private respondents' own tract of land.

The disputed property is an accretion on a sea bank, Manila Bay being an inlet or an arm of the sea; as such, the disputed property is, under Article 4 of the Spanish Law of Waters of 1866, part of the public domain.

At the outset, there is a need to distinguish between Manila Bay and Laguna de Bay.

While we held in the case of Ignacio v. Director of Lands and Valeriano[20] that Manila Bay is considered a sea for purposes of determining which law on accretion is to be applied in multifarious situations, we have ruled differently insofar as accretions on lands adjoining the Laguna de Bay are concerned.

In the cases of Government of the P.I v. Colegio de San Jose,[21] Republic v. Court of Appeals,[22] Republic v. Alagad[23], and Meneses v. Court of Appeals,[24] we categorically ruled that Laguna de Bay is a lake the accretion on which, by the mandate of Article 84 of the Spanish Law of Waters of 1866, belongs to the owner of the land contiguous thereto.

The instant controversy, however, brings a situation calling for the application of Article 4 of the Spanish Law of Waters of 1866, the disputed land being an accretion on the foreshore of Manila Bay which is, for all legal purposes, considered a sea.

Article 4 of the Spanish Law of Waters of August 3, 1866 provides as follows:

"Lands added to the shores by accretions and alluvial deposits caused by the action of the sea, form part of the public domain. When they are no longer washed by the waters of the sea and are not necessary for purposes of public utility, or for the establishment of special industries, or for the coast-guard service, the Government shall declare them to be the property of the owners of the estates adjacent thereto and as increment thereof."

In the light of the aforecited vintage but still valid law, unequivocal is the public nature of the disputed land in this controversy, the same being an accretion on a sea bank which, for all legal purposes, the foreshore of Manila Bay is. As part of the public domain, the herein disputed land is intended for public uses, and "so long as the land in litigation belongs to the national domain and is reserved for public uses, it is not capable of being appropriated by any private person, except through express authorization granted in due form by a competent authority."[25] Only the executive and possibly the legislative departments have the right and the power to make the declaration that the lands so gained by action of the sea is no longer necessary for purposes of public utility or for the cause of establishment of special industries or for coast guard services.[26]Petitioners utterly fail to show that either the executive or legislative department has already declared the disputed land as qualified, under Article 4 of the Spanish Law of Waters of 1866, to be the property of private respondents as owners of the estates adjacent thereto.

WHEREFORE, the instant Petition for Review is hereby GRANTED.

The decision of the Intermediate Appellate Court (now Court of Appeals) in CA G.R. No. 59044-R dated November 29, 1978 is hereby REVERSED and SET

ASIDE. The resolution dated November 21, 1980 and March 28, 1982, respectively, promulgated by the Intermediate Appellate Court are likewise REVERSED and SET ASIDE.

The decision of the Court of First Instance (now the Regional Trial Court), Branch 1, Balanga, Bataan, is hereby ORDERED REINSTATED.

Costs against private respondents.

SO ORDERED.

[G.R. No. 110286. April 2, 1997]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RENERIO P. VERGARA, ERNESTO T. CUESTA, JR., PEDRO G. DAGAO and BERNARDO P. CUESTA, accused. RENERIO P. VERGARA, accused-appellant.

D E C I S I O N

VITUG, J.:

From the decision, dated 10 February 1993, of the Regional Trial Court, 8th Judicial Region, Branch 7, in Tacloban City, finding accused Renerio P. Vergara guilty beyond reasonable doubt in Criminal Case No. 92-09-508 of a violation of Section 33 of Presidential Decree ("P.D.") No. 704, as amended by P.D. No. 1508, an appeal to this Court has been interposed.

Vergara was charged, together with his three co-accused, namely Ernesto T. Cuesta, Jr., Pedro G. Dagao and Bernardo P. Cuesta, on 25 September 1992, in an information that read:

"The undersigned Provincial Prosecutor of Leyte accuses Ernesto T. Cuesta, Jr., Pedro G. Dagao, Renerio P. Vergara and Bernardo P. Cuesta of the crime of Violation of Section 33, Presidential Decree No. 704, as amended by Presidential Decree No. 1058, committed as follows:

"That on or about the 4th day of July, 1992, in the Municipal waters of Palo, Province of Leyte, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, without any authority of law, conspiring and confederating together and mutually helping one another, did then and there willfully, unlawfully and criminally catch, take and gather fish belonging to the anchovies species known locally as 'bolinao', with the use of explosives contained in a bottle and called in the vernacular as 'badil', which bottled explosives after being ignited and hurled to the sea, produced explosion and caused the death of the said fish which were hit or affected by such explosion.

"CONTRARY TO LAW."[1]

Vergara alone was arraigned and brought to trial; his co-accused escaped and remained at large.

It would appear that at about 7:30 in the morning of 04 July 1992, a team composed of deputized Fish Warden and President of the Leyte Fish Warden Association Jesus P. Bindoy, Police Officers Casimiro Villas and Diosdado Moron of the Palo PNP Station, Leyte, Fish Wardens Mario Castillote and Estanislao Cabreros and Fish Examiner Nestor Aldas of the Department of Agriculture were on board, "Bantay-Dagat," a pumpboat, on "preventive patrol" along the municipal waters fronting barangays Baras and Candahug of Palo, Leyte, when they chanced upon a blue-colored fishing boat at a distance of approximately 200 meters away. The boat, 30 feet long, had on board appellant Renerio Vergara and his three co-accused Bernardo Cuesta, Pedro Dagao and Ernesto Cuesta, Jr., and was on parallel course toward the general direction of Samar.[2] Momentarily, the team saw appellant throw into the sea a bottle known in the locality as "badil" containing ammonium nitrate and having a blasting cap on top which, when ignited and thrown into the water, could explode. The explosion would indiscriminately kill schools and various species of fish within a certain radius. Approximately three seconds after appellant had thrown the "badil" into the sea, the explosion occurred. Vergara and Cuesta dove into the sea with their gear while Dagao and Cuesta, Jr., stayed on board to tend to the air hose for the divers.[3]

The team approached the fishing boat. SPO2 Casimiro Villas boarded the fishing boat while Fish Warden Jesus Bindoy held on to one end of the boat. Moments later, Vergara and Cuesta surfaced, each carrying a fishnet or "sibot" filled with about a kilo of "bolinao" fish scooped from under the water. Having been caught red-handed, the four accused were apprehended and taken by the patrol team to the "Bantay-Dagat" station at Baras, and later to the police station in Palo, Leyte. The fishing boat and its paraphernalia, as well as the two fishnets of "bolinao," were impounded. The accused, however, refused to sign and acknowledge the corresponding receipts therefor.

On 10 February 1993, following the submission of the evidence, the trial court rendered judgment convicting Vergara, viz:

"WHEREFORE, said Renerio Vergara is hereby sentenced to a penalty of Twenty (20) years to life imprisonment as punished under Sec. 2, of PD 1058.

"This Court further orders the confiscation of the fishing boat of Mario Moraleta including the following equipments: 1 air compressor, 3 sets of air hoses, and the 3 pieces of 'sibot' having been found to be instruments of the crime.

"SO ORDERED "[4]

In his appeal, Vergara submitted the following assignment of errors:

"1. THE LOWER COURT COMMITTED GRAVE ABUSE OF AUTHORITY WHEN IT COMPLETELY IGNORED THE TESTIMONY OF EMILIO LINDE.

"2. THE LOWER COURT COMMITTED GRAVE ABUSE OF AUTHORITY WHEN IT GAVE MUCH WEIGHT TO BIASED WITNESSES WHOSE TESTIMONIES WERE GLARINGLY INCONSISTENT.

"3. THE LOWER COURT COMMITTED GRAVE ABUSE OF AUTHORITY WHEN IT OPENLY SHOWED BIAS AGAINST THE ACCUSED DURING THE TRIAL OF THIS CASE."[5]

Emilio Linde sought to corroborate the claim of appellant that it was another unidentified group of fishermen who threw the bottle of explosives at a school of "bolinao" fish. It was obvious, however, said the trial court, that the statement of this defense witness was incredulous since he apparently had not at all been on board the fishing boat in the company of the accused at the time of the incident. Even the rather lengthy counter-affidavit of the four accused completely missed to mention Linde. The court a quo went on to observe that the demeanor of the accused at the witness stand and the substance of his testimony failed to elicit belief.

Trial courts are tasked to initially rule on the credibility of witnesses for both the prosecution and the defense. Appellate courts seldom would subordinate, with their own, the findings of trial courts which concededly have good vantage points in assessing the credibility of those who take the witness stand. Nevertheless, it is not all too uncommon for this Court, in particular, to peruse through the transcript of proceedings in order to satisfy itself that the records of a case do support the conclusions of trial courts.

Fish Warden Jesus Bindoy gave a detailed account of the 4th July 1992 incident. Thus

"FISCAL DAGANDAN:

"Q In the morning of the 4th day of July, 1992 do you recall where you were?

"A We were on the sea fronting barangays Baras and Candahug.

"Q What municipality?

"A Palo, Leyte.

"Q Did you have anyone with you in this particular incident?

"A Yes, sir.

"Q Who were they?

"A Two policemen Casimiro Villas, Jr. and Diosdado Moron and my fellow fish warden and one from the Department of Agriculture.

"Q Will you identify your co-fish warden who were present at that time?

"A Mario Castillote, Estanislao Cabreros, Jr.

"Q How about that employee from the Department of Agriculture, who was he?

"A Nestor Aldas.

"Q What were you doing at that particular time on this place fronting barangay Baras and Barangay Candahug, Palo, Leyte?

"A We were watching for illegal fishers.

"Q What is your authority in this particular task?

"A We are the bantay dagat members of Palo.

Q Do you have any written authoriting evidencing that position?

"A Yes, maam, our deputized ID (witness is showing ID No. 1432-91)

"FISCAL DAGANDAN:

For the records your honor I will quote this ID: This is to certify that Jesus P. Bindoy is a deputy fish warden vested with full power and authority to enforce all existing fishery laws, rules and regulations (SGD) Leopoldo Romano, [D]irector, Department of Agriculture, Region 8.

"FISCAL DAGANDAN:

"Q Since you claimed that you were on the sea fronting barangays Baras and Candahug in what vehicle were you in at that moment?

"A We were in a motorized pumpboat.

"Q So, what unusual incident if any that transpired?

"A In that morning we saw a blue pump boat which is about 200 meters away from us.

"COURT

What time in the morning?

"A About 7:30 in the morning more or less.

"FISCAL DAGANDAN:

"Q About how long is this colored blue pumpboat?

"A More or less 30 feet.

"Q At about this distance of 200 meters were you able to visualize or see if there were any passengers in that blue colored pumpboat?

"A Yes, maam.

"Q Were you able to identify them?

"A Yes, sir.

"Q Who were they?

"A The one in front of the pumpboat was Renerio Vergara, Bernardo Cuesta, Pedro Dagao and Ernesto Cuesta, Jr.

"Q You mentioned of Renerio Vergara, whom you saw in that blue colored pumpboat and you identified earlier Renerio Vergara. Is he the same person?

"A Yes, they are one and the same person.

"Q At the time you saw these persons loaded in that color blue pumpboat what were they doing?

"A I saw them paddling.

"Q Towards what direction?

"A Towards the direction of Samar.

"Q And where were you in relation with that pumpboat that was paddled towards Samar area?

"A We were situated parallel to them.

"Q So what happened at this particular time?

"A That was when we saw Renerio Vergara threw a bottle to the sea and after that we heard an explosion.

"Q Did you come to know what particular bottle was it thrown to the sea?

"A It was a dynamite (badil).

"Q As a member of this bantay dagat are you familiar with this 'badil' which you earlier mentioned?

"A Yes, sir.

"Q Will you describe this particular device?

"A This bottle is filled with ammonium nitrate and on top is a blasting cap.

"Q So in case this is used by fishermen, how do they operate this 'badil'?

"A It is ignited and then thrown to the sea and this result in the killing of fishes at the sea.

"Q In this particular instance when you heard the explosion how far were you to this blue pumpboat?

"A About 200 meters.

"Q So what did you do after you heard this explosion?

"A After the explosion we slowly approached them.

"Q From the time you saw this bottle being thrown to the sea by Vergara up to the time you heard this explosion about how many minutes elapsed?

"A About 3 seconds.

"Q At about how near were you to this blue pumpboat?

"A We went near to a distance of one hundred meters.

"Q So, what did you do at this distance?

"A We kept on watching them first and after we knew that the two persons dived to the sea that was the time that we approached the pumpboat.

"Q Were you able to recognize these two persons who dived?

"A Yes, maam.

"Q Who were they?

"A Renerio Vergara and Bernardo Cuesta.

"Q You said there were four persons loaded in that pumpboat. How about the other two what were they doing?

"A The two persons were there, one watching the hose that was used by the two persons who dived for breathing.

"Q So, what else did you do?

"A When we approached the pumpboat it was Casimiro Villas, a policeman who boarded the pumpboat.

"Q How about you what did you do when Casimiro Villas boarded the pumpboat?

"A I was the one holding on to the blue pumpboat.

"Q So, what else was done if any by the members of your team?

"A While we were there we let the two persons who dived surface and they were carrying with them fishnet filled with 'bolinao' fish and then we told them that we will bring them to our temporary station at Baras, Palo.

"Q Do you know the specie of this bolinao?

"A Anchovies.

"Q About how heavy were these fishes of bolinao in the fishnet?

"A About one kilo per fishnet.

"Q How many contraption were carried by them?

"A Each one of them was carrying one 'sibot' (fishnet).

"COURT

So, two divers two nets?

"A Yes, sir.

"Q And each has a catch of one kilo?

"A Almost one kilo.

"Q So, two nets two kilos more or less?

"A Yes, sir.

"FISCAL DAGANDAN:

"Q So, after that what did you do?

"Q When we arrived at our temporary station at Baras, Palo we gave the fishes to the fish examiner and we had the pumpboat inventoried and told them to sign the receipt we made.

"Q Do you recall if you made an apprehension report of the incident you witnessed?

"A Yes, maam.

"Q I show you a original copy of apprehension report dated July 4, 1992 addressed to the Regional Director, Department of Agriculture, Tacloban City stating that the following offenders namely Renerio Vergara y Prisno, Pedro Dagao y Gadin, Ernesto Cueta y Tobilla and Bernardo Cuesta y Pedrero were apprehended and the violation is fishing with the use of dynamite, the original of which is found on page 4 of the records. Will you examine the same and tell this court what relation has that to the report you said you made?

"A This is the apprehension report that we prepared on July 4, 1992."[6]

Nestor Aldas, an Agricultural Technologist and Fish Examiner working with the Department of Agriculture, Palo, Leyte, who examined the fish samples taken from the accused, testified that he was with the team patrolling, on 04 July 1992, the waters of San Pedro Bay, Baras, Palo, Leyte, when he, like the other members of his team, witnessed the use of explosives by the accused. Fish samples from

the catch showed ruptured capillaries, ruptured and blooded abdominal portion, and crushed internal organs indicating that explosives were indeed used.

The Court is convinced that the trial court has acted correctly in finding accused-appellant guilty of the offense charged.

Sections 33 and 38 of P.D. No. 704, as amended by P.D. No. 1058, read:

"Sec. 33. Illegal fishing; illegal possession of explosives intended for illegal fishing; dealing in illegally caught fish or fishery/aquatic products. It shall be unlawful for any person to catch, take or gather or cause to be caught, taken or gathered fish or fishery/aquatic products in Philippine waters with the use of explosives, obnoxious or poisonous substance, or by the use of electricity as defined in paragraphs (1), (m) and (d), respectively, of section 3 hereof: Provided, That mere possession of such explosives with intent to use the same for illegal fishing as herein defined shall be punishable as hereinafter provided:Provided, That the Secretary may, upon recommendation of the Director and subject to such safeguards and conditions he deems necessary, allow for research, educational or scientific purposes only, the use of explosives, obnoxious or poisonous substance or electricity to catch, take or gather fish or fishery/aquatic products in specified area: Provided, further, That the use of chemicals to eradicate predators in fishponds in accordance with accepted scientific fishery practices without causing deleterious effects in neighboring waters shall not be construed as the use of obnoxious or poisonous substance within the meaning of this section: Provided, finally, That the use of mechanical bombs for killing whales, crocodiles, sharks or other large dangerous fishes, may be allowed, subject to the approval of the Secretary.

"Section 38. (1) By the penalty of imprisonment ranging from twelve (12) years to twenty-five (25) years in the case of mere possession of explosives intended for illegal fishing; by imprisonment ranging from twenty (20) years to life imprisonment, if the explosive is actually used: Provided, That if the use of the explosive results in 1) physical injury to any person, the penalty shall be imprisonment ranging from twenty-five (25) years to life imprisonment, or 2) in the loss of human life, then the penalty shall be life imprisonment to death."

WHEREFORE, the decision of the court a quo appealed from is affirmed in toto. Costs against accused-appellant. SO ORDERED.