DUE PROCESS OF LAW, ART 45 Revised Penal Code

Revised Forestry Code authorizes the DENR to seize all conveyances used in the commission of
an offense in violation of Section 78. Section 78 states:

Sec. 78. Cutting, Gathering, and/or Collecting Timber, or Other Forest Products without
License. — Any person who shall cut, gather, collect, remove timber or other forest
products from any forestland, or timber from alienable or disposable public land, or from
private land, without any authority, or possess timber or other forest products without the
legal documents as required under existing forest laws and regulations, shall be punished
with the penalties imposed under Articles 309 and 310 of the Revised Penal Code. . .

The Court shall further order the confiscation in favor of the government of the timber or
any forest products cut, gathered, collected, removed, or possessed, as well as the
machinery, equipment, implements and tools illegally used in the area where the timber
or forest products are found.

This provision makes mere possession of timber or other forest products without the
accompanying legal documents unlawful and punishable with the penalties imposed for the
crime of theft, as prescribed in Articles 309-310 of the Revised Penal Code. In the present case,
the subject vehicles were loaded with forest products at the time of the seizure. But admittedly
no permit evidencing authority to possess and transport said load of forest products was duly
presented. These products, in turn, were deemed illegally sourced. Thus there was a prima facie
violation of Section 68 [78] of the Revised Forestry Code, although as found by the trial court,
the persons responsible for said violation were not the ones charged by the public prosecutor.
[Calub vs. CA, G.R. No. 115634, April 27, 2000]

violation of Section 78 of the Forestry Code is punished as Qualified Theft under Article 31030
in relation to Article 309 of the RPC, the statutory penalty shall be increased by two degrees,

Offenses in Section 68

This offense was discussed further in the case of Revaldo vs. People of the Philippines (G.R. No.
170589, April 16, 2009), where the Supreme Court through Acting Chief Justice Antonio T.
Carpio stated that:

“There are two distinct and separate offenses punished under Section 68 of the Forestry Code, to
wit:

(1) Cutting, gathering, collecting and removing timber or other forest products from any forest
land, or timber from alienable or disposable public land, or from private land without any
authority; and

(2) Possession of timber or other forest products without the legal documents required under
existing forest laws and regulations.
As the Court held in People v. Que, in the first offense, one can raise as a defense the legality of
the acts of cutting, gathering, collecting, or removing timber or other forest products by
presenting the authorization issued by the DENR. In the second offense, however, it is
immaterial whether the cutting, gathering, collecting and removal of the forest products are legal
or not. Mere possession of forest products without the proper documents consummates the crime.
Whether or not the lumber comes from a legal source is immaterial because the Forestry Code is
a special law which considers mere possession of timber or other forest products without the
proper documentation as malum prohibitum.”

Authority of DENR to seize vehicle

The corresponding authority of the DENR to seize all conveyances used in the commission of an
offense in violation of Section 78 of the Revised Forestry Code is pursuant to Sections 78-A and
89 of the same Code. They read as follows:

Sec. 78-A. Administrative Authority of the Department Head or His Duly Authorized
Representative to Order Confiscation. — In all cases of violation of this Code or other
forest laws, rules and regulations, the Department Head or his duly authorized
representative, may order the confiscation of any forest products illegally cut, gathered,
removed, or possessed or abandoned, 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.

Sec. 89. Arrest; Institution of criminal actions. — A forest officer or employee of the
Bureau [Department] or any personnel of the Philippine Constabulary/Philippine
National Police shall arrest even without warrant any person who has committed or is
committing in his presence any of the offenses defined in this Chapter. He shall also seize
and confiscate, in favor of the Government, the tools and equipment used in committing
the offense. . . [Emphasis supplied.]

DENR Administrative Order No. 59, series of 1990, implements Sections 78-A and 89 of the Forestry
Code, as follows:

Sec. 2. Conveyances Subject to Confiscation and Forfeiture. — All conveyances used in

the transport of any forest product obtained or gathered illegally whether or not covered
with transport documents, found spurious or irregular in accordance with Sec. 68-A [78-
A] of P.D. No. 705, shall be confiscated in favor of the government or disposed of in
accordance with pertinent laws, regulations or policies on the matter.

Sec. 4. Who are Authorized to Seize Conveyance. — The Secretary or his duly authorized
representative such as the forest officers and/or natural resources officers, or deputized
officers of the DENR are authorized to seize said conveyances subject to policies and
guidelines pertinent thereto. 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 oversaid forest products and conveyances for proper
action and disposition. In case where the apprehension is made by DENR field officer,
the conveyance shall be deposited with the nearest CENRO/PENRO/RED Office as the
case may be, for safekeeping wherever it is most convenient and secured. [Emphasis
supplied.]

Warrantless seizure of conveyance allowed

Upon apprehension of the illegally-cut timber while being transported without pertinent
documents that could evidence title to or right to possession of said timber, a warrantless seizure
of the involved vehicles and their load was allowed under Section 78 and 89 of the Revised
Forestry Code. [Calub vs. CA, G.R. No. 115634, April 27, 2000]

Vehicle seized as a result of Sec 78 and 89 are in custodia legis and not subject to replevin

Since there was a violation of the Revised Forestry Code and the seizure was in accordance with
law, in our view the subject vehicles were validly deemed in custodia legis. It could not be
subject to an action for replevin. For it is property lawfully taken by virtue of legal process and
considered in the custody of the law, and not otherwise. [Mamanteo, et. al. v. Deputy Sheriff
Magumun, A.M. No. P-98-1264]

Complaint for the recovery of possession of the two impounded vehicles, with an application for
replevin, a suit against the State [Calub vs. CA, G.R. No. 115634, April 27, 2000]

Release of Vehicle owned by 3rd Person

RPC Provision

“Article 45.Confiscation and Forfeiture of the Proceeds or Instruments of theCrime. – Every

penalty imposed for the commission of a felony shall carry with it the forfeiture of the proceeds
of the crime and the instruments or tools with which it was committed.

Such proceeds and instruments or tools shall be confiscated and forfeited in favor of the
Government, unless they be the property of a third person not liable for the offense, but those
articles which are not subject of lawful commerce shall be destroyed.”

Jurisprudence on Art 45 re: 3rd person

The Court has interpreted and applied Article 45of the Revised Penal Code in People v. Jose
(G.R. No. L-28232, February 6, 1971, 37 SCRA 450) concerning the confiscation and forfeiture
of the car used by the four accused when they committed the forcible abduction with rape,
although the car did not belong to any of them, holding:
xxx Article 45 of the Revised Penal Code bars the confiscation and forfeiture of an instrument or
tool used in the commission of the crime if such "be the property of a third person not liable for
the offense," it is the sense of this Court that the order of the court below for the confiscation of
the car in question should be set aside and that the said car should be ordered delivered to the
intervenor for foreclosure as decreed in the judgment of the Court of First Instance of Manila in
replevin case. Xxx [People v. Jose, G.R. No. L-28232, February 6, 1971, 37 SCRA 450]

Momongan Case

According to the Revised Penal Code, Art. 45, first paragraph: "Every penalty imposed for the
commission of a felony shall carry with it the forfeiture of the proceeds of the crime and the
instrument or tools with which it was committed." However, this 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, Mr. Dionisio Golpe was not indicted.
Hence, there was no justification for respondent Judge not to release the truck. [MOMONGAN vs
OMIPON A.M. No. MTJ-93-874 March 14, 1995]

Complainant is correct in pointing out that based on Pres. Decree No. 705, Sec. 68-A and Adm. Order No.
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 likewise
pointed out, this power is in relation to the administrative jurisdiction of the DENR. [MOMONGAN vs
OMIPON A.M. No. MTJ-93-874 March 14, 1995

The release of the truck did not render nugatory the administrative authority of the DENR Secretary .
The confiscation proceedings under Adm. Order No. 59 is different 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 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 Adm. Order No. 59. Section 12 thereof categorically states that "[t]he
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."

Note: DAO No. 59 has been repealed by DAO 97-32

Jurisdiction over confiscation of conveyances

xxx the original and exclusive jurisdiction over the confiscation of "all conveyances used either by
land, water or air in the commission of the offense and to dispose of the same" is vested in the
Department of Environment and Natural Resources (DENR) secretary or a duly authorized
representative. The DENR secretary has supervision and control over the enforcement of forestry,
reforestation, parks, game and wildlife laws, rules and regulations. Xxx [DENR vs Daraman, G.R. No.
125797, February 15, 2002]
To implement Section 68-A, DENR promulgated Administrative Order (AO) No. 54-93, amending
Department Administrative Order (DAO) No. 59-90. AO 54-93 provides the guidelines for the
confiscation, forfeiture and disposition of conveyances used in violation of forestry laws, rules and
regulations. Xxx

The guilt or the innocence of the accused in the criminal case is immaterial, because what is punished
under Section 68 is the transportation, movement or conveyance of forest products without legal
documents. The DENR secretary or the authorized representatives do not possess criminal jurisdiction;
thus, they are not capable of making such a ruling, which is properly a function of the courts. Even
Section 68-A of PD 705, as amended, does not clothe petitioner with that authority.

Conversely, the same law takes out of the general jurisdiction of the regional trial courts the confiscation
of conveyances used in violation of forestry laws. Hence, we cannot expect the DENR to rule on the
criminal liability of the accused before it impounds such vehicles. Section 68-A covers only the
movement of lumber or forest products without proper documents. Where the language of a statute is
clear and unambiguous, the law is applied according to its express terms, and interpretation is resorted
to only where a literal interpretation would lead to either an absurdity or an injustice. [DENR vs
Daraman, G.R. No. 125797, February 15, 2002]

Order to Release Vehicle (on ground of dismissal of charges)

The validity and legality of the Order of Forfeiture falls outside the ambit of the review of the assailed
Decision and Order. The basis for the assailed Order to release the vehicle was private respondents’
acquittal of the charge of violating Section 68. On the other hand, the forfeiture Order issued by the
DENR was based on Section 68-A, which involved a distinct and separate matter cognizable by it.
Petitioner is questioning only the RTC’s jurisdiction over the assailed Order to release the confiscated
vehicle. Private respondents have not appealed the DENR’s Order of Forfeiture, the validity of which can
thus be presumed. The genuineness of the Order and its proper service upon them are factual issues
that will not be dwelt upon by this Court, which is not a trier of facts. [DENR vs Daraman, G.R. No.
125797, February 15, 2002]

REMEDY IF THERE WAS NO VALID ADMINISTRATIVE CONFISCATION – MOTION TO RELEASE WITH

COURT

In a recent 17-page decision, the CA 13th Division declared null and void the May 25, 2018
order of Virac Regional Trial Court (RTC) Branch 42 Judge Lelu Contreras denying the motion
of Eastern Island Shipping Lines Corporation for its third-party claim and for the release of its
10-wheeler Isuzu dump truck.

Eastern Shipping on February 26, 2018 leased its dump truck to Elmer Belen. However, the truck
was seized by authorities on March 13, 2018, after it was found transporting 196 pieces of
lumber products without proper documentation. Three days later, Marvin Soria and Elmer
Morauda III pleaded guilty to charges of violating the Revised Forestry Code.
After authorities refused to consent to the accused’s motion for the release of the dump truck,
Contreras on March 22, 2018 decreed its confiscation in favor of the government. Eastern Island
belatedly found out about the confiscation and asked to intervene in the case, to no avail.

Eastern Shipping argued that Article 45 of the RPC excepted property owned by third persons
not liable for the offense from the general rule that items used in crimes should be confiscated.

However, Contreras held that the Forestry Code did not make any distinction regarding the
ownership of the tools of the crime. She ruled that the Revised Forestry Code, being a later and
special law, should prevail over the RPC.

The CA, however, said Contreras’s refusal to release the dump truck was “unjustifiable,”
especially as she admitted that Eastern Island’s motion was grounded on jurisprudence.

It said Section 68 of the Revised Forestry Code, the basis for judicial confiscation, “does not
mention that the rule provided for under Article 45 of the RPC will no longer apply in the event
that the trial court orders the confiscation of those enumerated.”

While Section 68-A of the Revised Forestry Code provides for the confiscation of “all
conveyances used” in the crime, the CA noted that this referred to administrative confiscation by
the Department of Environment and Natural Resources (DENR)—a distinct and independent
procedure.

The CA noted that the Supreme Court (SC) already clarified in the 1995 case of Momongan
versus Judge Omipon that the proper way to confiscate the truck was through administrative
confiscation because the judicial confiscation mode was subject to the limit of Article 45 of the
RPC.

“There was no mention, whatsoever, of administrative confiscation proceedings that was

instituted by the DENR against the subject vehicle,” read the decision penned by Associate
Justice Elihu Ybañez.

“Thus, Judge Contreras clearly committed grave abuse of discretion in holding that Article 45 of
the RPC is inapplicable as it was quite explicitly stated in the above-quoted jurisprudence that
Article 45 of the RPC still applies in judicial confiscation,” it added.

The CA said that in Eastern Island’s case, it was “convinced that petitioner had neither
knowledge, consent nor participation in the commission of the crime,” since the dump truck was
covered by a valid contract of lease.