SORIANO MATA, PETITIONER, VS. HON. JOSEPHINE K. BAYONA, IN HER CAPACITY AS PRESI­DING JUDGE OF THE CITY COURT OF ORMOC, BERNARDO GOLES AND REYNALDO MAYOTE, RESPONDENTS.

The validity of the search warrant issued by respondent Judge (not
reappointed) is challenged by petitioner for its alleged failure to
comply with the requisites of the Consti­tution and the Rules of Court.

Specifically, the contention is that the search warrant issued by
respondent Judge was based merely on the application for search warrant
and a joint affidavit of private respondents which were wrongfully it is
alleged subscribed, and sworn to before the Clerk of Court of
respondent Judge. Furthermore, there was allegedly a failure on the
part of respondent Judge to attach the necessary papers pertinent to the
issuance of the search warrant to the records of Criminal Case No.
4298-CC wherein petitioner is accused under PD 810, as amended by PD
1306, the information against him alleging that Soriano Mata offered,
took and arranged bets on the Jai Alai game by “selling illegal tickets
known as ‘Masiao tickets’ without any authority from the Philippine Jai
Alai & Amusement Corporation or from the government authorities
concerned.”^[1]

Petitioner claims that during the hearing of the case, he discovered
that nowhere from the records of the said case could be found the search
warrant and other pertinent papers connected to the issuance of the
same, so that he had to inquire from the City Fiscal its whereabouts,
and to which in­quiry respondent Judge replied, “it is with the court”.
The Judge then handed the records to the Fiscal who attached them to
the records.

This led petitioner to file a motion to quash and annul the search
warrant and for the return of the articles seized, citing and invoking,
among others, Section 4 of Rule 126 of the Revised Rules of Court. The
motion was denied by respon­dent Judge on March 1, 1979, stating that
the Court has made a thorough investigation and examination under oath
of Bernardo U. Goles and Reynaldo T. Mayote, members of the Intelligence
Section of 352nd PC Co./Police District II INP; that in fact the court
made a certification to that effect; and that the fact that documents
relating to the search warrant were not attached immediately to the
record of the criminal case is of no moment, considering that the rule
does not specify when these documents are to be attached to the records.^[2]
Petitioner’s motion for reconsideration of the aforesaid order having
been denied, he came to this Court, with the instant petition, praying,
among others, that this Court declare the search warrant to be invalid
and all the articles confiscated under such warrant as inadmissible as
evidence in the case, or in any proceedings on the matter.

We hold that the search warrant is tainted with illegality for being violative of the Constitution and the Rules of Court.

Under the Constitution “no search warrant shall issue but upon probable
cause to be determined by the Judge or such other responsible officer as
may be authorized by law after examina­tion under oath or affirmation
of the complainant and the witnesses he may produce”. More emphatic and
detailed is the implementing rule of the constitutional injunction,
Section 4 of Rule 126 which provides that the judge must before issuing
the warrant personally examine on oath or affirmation the complainant
and any witnesses he may produce and take their depositions in writing,
and attach them to the record, in addition to any affidavits presented
to him.

Mere affidavits of the complainant and his witnesses are thus not
sufficient. The examining Judge has to take depositions in writing of
the complainant and the witnesses he may produce and to attach them to
the record. Such written deposition is necessary in order that the
Judge may be able to properly deter­mine the existence or non-existence
of the probable cause, and to hold liable for perjury the person giving
it if it will be found later that his declarations are false.

We, therefore, hold that the search warrant is tainted with illegality
by the failure of the Judge to conform with the essential requisites of
taking the depositions in writing and attaching them to the record,
rendering the search warrant invalid.

The judge’s insistence that she examined the complainants under oath has
become dubious by petitioner’s claim that at the particular time when
he examined all the relevant papers connected with the issuance of the
questioned search warrant, after he demanded the same from the lower
court since they were not attached to the records, he did not find any
certification at the back of the joint affidavit of the complainants.
As stated earlier, before he filed his motion to quash the search
warrant and for the return of the articles seized, he was furnished,
upon his request, certified true copies of the said affidavits by the
Clerk of Court but which certified true copies do not bear any
certification at the back. Petitioner likewise claims that his xerox
copy of the said joint affidavit obtained at the outset of this case
does not show also the certification of respondent judge. This doubt
becomes more confirmed by respondent Judge’s own admission, while
insisting that she did examine thoroughly the applicants, that “she did
not take the deposition of Mayote and Goles because to have done so
would be to hold a judicial proceeding which will be open and public”,^[3]
such that, according to her, the persons subject of the intended raid
will just disappear and move his illegal operations somewhere else.

Could it be that the certification was made belatedly to cure the defect
of the warrant? Be that as it may, there was no “deposition in
writing” attached to the records of the case in palpable disregard of
the statutory prohibition heretofore quoted.

Respondent Judge impresses this Court that the urgency to stop the
illegal gambling that lures every man, woman and child, and even the
lowliest laborer who could hardly make both ends meet justifies her
action. She claims that in order to abate the proliferation of this
illegal “masiao” lottery, she thought it more prudent not to conduct the
taking of deposition which is done usually and publicly in the court
room.

Two points must be made clear. The term “depositions” is sometimes used
in a broad sense to describe any written state­ment verified by oath;
but in its more technical and appropriate sense the meaning of the word
is limited to written testimony of a witness given in the course of a
judicial proceeding advance of the trial or hearing upon oral
examination.^[4] A deposition
is the testimony of a witness, put or taken in writing, under oath or
affirmation before a commissioner, examiner or other judicial officer,
in answer to interlocutory and cross interlocutory, and usually
subscribed by the witnesses.^[5]
The searching questions propounded to the applicants of the search
warrant and his witnesses must depend to a large extent upon the
discretion of the Judge just as long as the answers establish a
reasonable ground to believe the commission of a specific offense and
that the applicant is one authorized by law, and said answers
particularly describe with certainty the place to be searched and the
persons or things to be seized. The examina­tion or investigation which
must be under oath may not be in public. It may even be held in the
secrecy of his chambers. Far more important is that the examination or
investigation is not merely routinary but one that is thorough and
elicit the required information. To repeat, it must be under oath and
must be in writing.

The other point is that nothing can justify the issuance of the search
warrant but the fulfillment of the legal requisites. It might be well
to point out what has been said in Asian Surety & Insurance Co.,
Inc. vs. Herrera:

“It has been said that of all the rights of a citizen, few are of
greater importance or more essential to his peace and happiness than the
right of personal security, and that involves the exemption of his
private affairs, books, and papers from inspection and scrutiny of
others. While the power to search and seize is necessary to the public
welfare, still it must be exercised and the law enforced without
transgressing the constitutional rights of the citizens, for the
enforcement of no statute is of sufficient importance to justify in
difference to the basic principles of government.”^[6]

Thus, in issuing a search warrant the Judge must strictly comply with
the requirements of the Constitution and the statutory provisions. A
liberal construction should be given in favor of the individual to
prevent stealthy encroachment upon, or gradual depreciation of the
rights secured by the Constitution.^[7] No presumption of regularity are to be invoked in aid of the process when an officer undertakes to justify it.^[8]

While We hold that the search warrant is illegal, the return of the things seized cannot be ordered. In Castro vs. Pabalan,^[9]
it was held that the illegality of the search warrant does not call
for the return of the things seized, the possession of which is
prohibited.

WHEREFORE, the writ of certiorari is granted and the order of March 1,
1979 denying the motion to annul the search warrant as well as the order
of March 21, 1979 denying the motion for reconsideration are hereby
reversed, the search warrant, being declared herein as illegal.
Notwithstanding such illegality, the things seized under such warrant,
such as stock of “masiao” tickets; “masiao” issue tickets; bet money;
control pad or “masiao” numbers; stamping pad with rubber stamp marked
Ormoc City Jai-Alai,” cannot be returned as sought by petitioner. No
costs.

SO ORDERED.

Makasiar, Acting C.J., (Chairman), Concepcion, Jr. and Guerrero, JJ., concur.

Aquino and Escolin, JJ., in the result.

Abad Santos, J., no part.

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^[1] Annex “A”, of the petition, p. 7, Rollo.

^[2] Annex “H” of the petition, p. 20, id.

^[3] Comment, p. 31, id.

^[4] 16 Am Jur, 699.

^[5] Words & Phrases “Demand” p. 258.

^[6] 54 SCRA 312.

^[7] Alvarez vs. Court of First Instance of Tayabas, 64 Phil. 42.

^[8] People vs. Veloso, 40 Phil. 169.

^[9] 70 SCRA 478.