25. AUGUSTUS MOMONGAN, Regional Director, DENR, Region VIII, Tacloban City v.

JUDGE
RAFAEL OMIPON, 6th MCTC, Hinunangan Silago, Southern Leyte
A.M. No. MTJ-93-874 | Romero, J. | 14 March 1995
Criminal Offenses and Penalties (Sections 68-80) of PD 705

DOCTRINE: The release of the truck did not render nugatory the administrative authority of the DENR
Secretary as the confiscation proceedings under AO 59 is different from the confiscat ion under the
RPC, which is an additional penalty imposed in the event of conviction.

FACTS:
 At 10:00 o'clock of November 14, 1992, police officers of the Municipality of Hinunangan, Southern
Leyte apprehended Dionisio Golpe while he was driving his truck loaded with illegally cut lumber
which were impounded. A complaint was filed against Basilio Cabig, the alleged owner of the logs.
After conducting the preliminary investigation, Judge Rafael Omipon found that a prima facie case
exists against Mr. Cabig but ordered the release of the truck inasmuch as the owner/driver, Mr.
Golpe, was not charged in the complaint.

 Regional Director Augustus Momongan of DENR filed a complaint against Judge Omipon, alleging
that his order violated Sections 68 and 68-A of PD 705, as amended by EO 277, Section
68 and AO 59, s. of 1990. Momongan claims that Judge Omipon has no authority to order the
release of the truck despite the non-inclusion of Mr. Golpe in the complaint and it should have
been turned over to the Community Environment and Natural Resources Office of San Juan,
Southern Leyte for appropriate disposition as the same falls under the administrative jurisdiction of
the DENR.
o Judge Omipon explained that after conducting PI, he found that Golpe, owner of the truck, is
principally engaged in the hauling of sand and gravel and the delivery of hollow blocks. On
his way home after delivering hollow blocks in Barangay Sto. Niño II, he met his friend
Cabig who requested him to load sliced lumber and deliver the same at Brgy. Lungsod-
daan, Hinundayan to be used for the construction of a barangay high school building. They
were apprehended when the truck had a flat tire. After changing the tire, both the lumber
and the truck were ordered deposited at the police station of Hinunangan.
o observed that Golpe has a lesser participation in the crime of illegal logging and, being a
mere accessory, he might be utilized by the Acting Chief of Police as prosecution witness
against Cabig. More importantly, the fact that the complaint charged only Cabig,
respondent, in the exercise of his sound discretion, ordered the release of the truck owned
by Golpe.

 The Office of the Court Administrator recommended that a formal investigation be conducted
arguing that while Judge Omipon is authorized to conduct preliminary investigation in all cases of
violations of P.D. 705, as amended, Sec. 68-A thereof provides that it is the Department Head or
his duly authorized representative who may order the confiscation and disposition of the illegal
forest products and all conveyances used either by land, water or air in the commission of the
offense and to dispose of the same in accordance with pertinent laws, regulations or policies on the
matter.

 The Court resolved to refer the case to Acting Executive Judge Leandro Loyao, Jr., RTC of San
Juan, Southern Leyte, for investigation, report and recommendation, within 60 days from receipt of
the records.
o The Investigating Judge's confidential report stated that he could not elicit additional facts
than are found in the records, whether inculpatory or exculpatory, and that respondent was
given an opportunity to explain but was overtaken by a serious illness
o During the pendency of this case, respondent filed for disability retirement which was
approved but his pension was not released pending the outcome of this case.
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ISSUE: Whether or not Judge Omipon erred in ordering the release of Golpe’s truck. -NO.

HELD:
The mandate in Art. 45(1) of the RPC cannot be done if such proceeds and instruments or tools be
the property of a third person not liable for offense. In this case, the truck, though used to transport the
illegally cut lumber, cannot be confiscated and forfeited in the event accused therein be convicted because
the truck owner/driver Golpe was not indicted. There was no justification for respondent not to release
the truck.

Complainant is correct in pointing out that based on PD 705, Sec. 68-A and AO 59, the DENR Secretary or
his duly authorized representative has the power to confiscate any illegally obtained or gathered forest
products and all conveyances used in the commission of the offense and to dispose of the same in
accordance with pertinent laws. However, as complainant himself pointed out, this power is in relation to
the administrative jurisdiction of the DENR.

We do not find that when respondent released the truck after he conducted the preliminary investigation
and satisfied himself that there was no reason to continue keeping the truck, he violated such laws. The
release of the truck did not render nugatory the administrative authority of the DENR Secretary. The
confiscation proceedings under AO 59 is different from the confiscation under the RPC, which is an
additional penalty imposed in the event of conviction. Despite the order of release, the truck can be
seized again either by filing a motion for reinvestigation and motion to include the truck owner/driver, as co-
accused, which complainant has done as manifested before the lower court or by enforcing AO 59. Section
12 thereof categorically states that the confiscation of the conveyance under these regulations shall be
without prejudice to any criminal action which shall be filed against the owner thereof or any person who
used the conveyance in the commission of the offense.

Under Sec. 4 of AO 59, if the apprehension is not made by DENR field offices, deputized military
personnel and officials of other agencies apprehending illegal logs and other forest products and
their conveyances shall notify the nearest DENR field offices and turn-over said forest products
and conveyances for proper action and disposition. A period of about 2 weeks lapsed from the time
the seizure was made before a complaint was filed. During this period, the apprehending policemen had
enough time to turn over the logs and the truck to the nearest DENR field office for proper action and
disposition since the duty to turn over the truck to the nearest DENR field office rests on the officials
apprehending the illegal logs. There being no mandatory duty on the part of respondent to turn over the
truck, he should not be visited with disciplinary sanction when he did not refer the same to the DENR field
office in San Juan, Southern Leyte.

The Court takes this opportunity to enjoin the National Police, the DENR, the prosecutors, and the
members of the bench to coordinate with each other for a successful campaign against illegal logging. All
the concerned agencies should strive for the attainment of the constitutionally-declared policy to protect
and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and
harmony of nature in order to preserve our natural resources for the benefit of the generations still to come.

WHEREFORE, the complaint is DISMISSED.

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