SC CIRCULAR NO. 17-95, March 23, 1995

Quoted hereunder for the information and guidance of all concernedm is the
pertinent portion of the decision of the Third Division in A. M. No. MTJ-93-874
(AUGUSTUS L. MOMONGAN, Petitioner versus JUDGE RAFAEL B. OMIPON, Respondent),
dated March 14, 1995, to wit:

“A. M. No. MTJ-93-874, (AUGUSTUS L. MOMONGAN, Petitioner versus JUDGE RAFAEL
B. OMIPON, Respondent),

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“Complaint is correct in pointing out that based on Pres. Decree No. 705,
Sec. 68-A and Adm. Order No. 59, the DENR Secretary if 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
the dispose of the same in accordance with pertinent laws. However, as
complainant himself likewise pointed out, this power is in relation to the
administrative jurisdiction of the DENR.

“We do not find that when respondent Judge released the truck after he
conducted the preliminary investigation and satisfied himself that there was no
reason to continue keeping the truck, he violated Pres. Decree No. 705 and Adm.
Order No. 59. The reason of the truck did not render nugatory the administrative
authority of the DENR Secretary. The confiscation proceeding under Adm. Order
No. 59 is differrent from the confiscation under the Revised Penal Code, which
is an additional penalty imposed in the event of conviction. Despite the order
of release, the truck can be seized again either by filling a motion for
reinvestigation and motion to include the truck can be seized again either by
filling a motion for reivestigation and motion to include the truck owner/driver
as co-accused, which complaint has done as manifested before the lower court by
enforcing Adm. Order No. 59, Section 12 thereof categorically states that [t]he
consfiscation of the conveyance under these regulations shale 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.

“Petitioner is of the opinion that undet the circumstances, respondent Judge
should have turned over the truck to the Community Environment and Natural
Resources Office (CENRO) of San Juan, Southern Leyte for appropriate
disposition. No doubt, this would have simplified matters and prevented the
present situation from occuring.

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6. SEC. 7. NOTICE TO OWNER. For the purpose of complying with due process,
the Secretary, RED/PENRO/CENRO or their duly authorized representative a written
notice of the seizure and shall give him an opportunity to be heard in reference
to the ground or reason for the seizure by requiring said owner or
representative to submit sworn statements or affidavit within three (3) days
from receipt of such written notice or they may elect to have a formal hearing
conducted, but they must signify their intention in writing within the same
period. For the purpose of such notice and all proceedings connected with
confiscation, “representative” shall be deemed to include not only
representative-in-fact of the owner but also any person having possession of the
conveyance at the time of confiscation of siezure.

SEC. 8. REPORT/RECOMMENDATION. Upon receipt of the aforesaid sworn
statement/affidavit of the owner or representative or if none is received
despite due notice, the PENRO/CENRO or any authorized representative of the DENR
for the matter shall determine if the seized conveyance was used in the
commission of the offense an contemplated in Section 2 hereof, and shall render
a report thereon within one week accompanied by the evidence he has gathered
including his recommendations to the Secretary of the Regional Executive
Directors, as the case may be wherein one government official files a complaint
against another. Under Sec. 4 of Adm. Order No. 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 two 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 filed office for proper action
and disposition since the duty to turn over the truck to the nearest DENR filed
officer rest on the official apprehending the illegal logs. There being no
mandatory duty of the part of respondent Judge 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.”

March 23, 1995.

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Continued . .

SEC. 9. DISPOSITION OF CONVEYANCE. All conveyances found to have been used in
the transport of any forest product from illegal sources and/or covered by
spurious documents shall be declared forfeited in favor of the government in
accordance with Sec. 68-A of PD 705, as amended, Forfeited conveyances may be
used, at the discretion of the DENR, in forest protection and development
activities, otherwise, the same shall be disposed of through public auction by
the Secretary of the Regional Office, as the case may be, in accordance with
existing policies and procedures for the disposition of government
property.