So too must this Court uphold the validity of the checkpoint. The petitioner insists that the prosecution should have produced the mission order constituting the checkpoint, and invokes Aniag, Jr. v. Comelec,¹⁵ where the Court purportedly held that firearms seized from a motor vehicle without a warrant are inadmissible because there was no indication that would trigger any suspicion from the policemen nor any other circumstance showing probable cause.

On both points the petitioner is wrong. In the present case, the production of the mission order is not necessary in view of the fact that the checkpoint was established three days before the May 11, 1998 elections; and, the circumstances under which the policemen found the gun warranted its seizure without a warrant.

In People v. Escaño,¹⁶ the Court, through the ponencia of Chief Justice Hilario G. Davide, Jr., held:

Accused-appellants assail the manner by which the checkpoint in question was conducted. They contend that the checkpoint manned by elements of the Makati Police should have been announced. They also complain of its having been conducted in an arbitrary and discriminatory manner.

We take judicial notice of the existence of the COMELEC resolution imposing a gun ban during the election period issued pursuant to Section 52(c) in relation to Section 26(q) of the Omnibus Election Code (Batas Pambansa Blg. 881). The national and local elections in 1995 were held on 8 May, the second Monday of the month. The incident, which happened on 5 April 1995, was well within the election period.

This Court has ruled that not all checkpoints are illegal. Those which are warranted by the exigencies of public order and are conducted in a way least intrusive to motorists are allowed. For, admittedly, routine checkpoints do intrude, to a certain extent, on motorists’ right to "free passage without interruption," but it cannot be denied that, as a rule, it involves only a brief detention of travelers during which the vehicle’s occupants are required to answer a brief question or two. For as long as the vehicle is neither searched nor its occupants subjected to a body search, and the inspection of the vehicle is limited to a visual search, said routine checks cannot be regarded as violative of an individual’s right against unreasonable search. In fact, these routine checks, when conducted in a fixed area, are even less intrusive.

The checkpoint herein conducted was in pursuance of the gun ban enforced by the COMELEC. The COMELEC would be hard put to implement the ban if its deputized agents were limited to a visual search of pedestrians. It would also defeat the purpose for which such ban was instituted. Those who intend to bring a gun during said period would know that they only need a car to be able to easily perpetrate their malicious designs.

The facts adduced do not constitute a ground for a violation of the constitutional rights of the accused against illegal search and seizure. PO3 Suba admitted that they were merely stopping cars they deemed suspicious, such as those whose windows are heavily tinted just to see if the passengers thereof were carrying guns. At best they would merely direct their flashlights inside the cars they would stop, without opening the car’s doors or subjecting its passengers to a body search. There is nothing discriminatory in this as this is what the situation demands.¹⁷(Emphasis supplied)

Thus, the Court agrees with the Solicitor General that petitioner’s reliance on Aniag is misplaced.

In Aniag, the police officers manning the checkpoint near the Batasang Pambansa complex stopped the vehicle driven by the driver of Congressman Aniag. After stopping the vehicle, the police opened a package inside the car which contained a firearm purportedly belonging to Congressman Aniag. In declaring the search illegal, the Supreme Court stated that the law enforcers who conducted the search had no probable cause to check the content of the package because the driver did not behave suspiciously nor was there any previous information that a vehicle hiding a firearm would pass by the checkpoint.

In the instant case, the firearm was seized from the petitioner when in plain view, the policemen saw it tucked into his waist uncovered by his shirt.

Under the plain view doctrine, objects falling in the "plain view" of an officer who has a right to be in the position to have that view are subject to seizure and may be presented as evidence.¹⁸ The "plain view" doctrine applies when the following requisites concur: (a) the law enforcement officer in search of the evidence has a prior justification for an intrusion or is in a position from which he can view a particular area; (b) the discovery of the evidence in plain view is inadvertent; and (c) it is immediately apparent to the officer that the item he observes may be evidence of a crime, contraband or otherwise subject to seizure.¹⁹

All the foregoing requirements are present in the instant case. The law enforcement officers lawfully made an initial intrusion because of the enforcement of the Gun Ban and were properly in a position from which they particularly viewed the area. In the course of such lawful intrusion, the policemen came inadvertently across a piece of evidence incriminating the petitioner where they saw the gun tucked into his waist. The gun was in plain view and discovered inadvertently when the petitioner alighted from the vehicle.

As accurately found by the CA:

xxx It must be emphasized that the policemen discovered the firearm [on] the person of the [petitioner] shortly after he alighted from the vehicle and before he was frisked. SPO3 Pascua’s testimony[,] corroborated by that of SPO1 Requejo[,] convincingly established that the holstered .45 caliber pistol tucked at the right waist of the [petitioner] was readily visible to the policemen (TSN, August 24, 1998, pp. 18, 37). Thus, notwithstanding the absence of a Search Warrant, the policemen may validly seize the firearm and the same is admissible in evidence against the [petitioner] pursuant to the "plain view doctrine" xxx.²⁰

Nor can the Court believe petitioner’s claim that he could not have freely refused the "police orders" issued by the police team who were "armed to the teeth" and "in the face of such show of force." The courts a quo consistently found that the police team manning the checkpoint politely requested the passengers to alight from their vehicles, and the motorists who refused this request were not forced to do so. These findings of fact are fully supported by the evidence in the record.

However, the Court must underscore that the prosecution failed to satisfactorily prove the negative allegation in the Information that the petitioner possessed no license or permit to bear the subject firearm.

It is a well-entrenched rule "that in crimes involving illegal possession of firearm, the prosecution has the burden of proving the elements thereof, viz: the existence of the subject firearm, and the fact that the accused who owned or possessed the firearm does not have the corresponding license or permit to possess the same."²¹

Undoubtedly, it is the constitutional presumption of innocence that lays such burden upon the prosecution. The absence of such license and legal authority constitutes an essential ingredient of the offense of illegal possession of firearm, and every ingredient or essential element of an offense must be shown by the prosecution by proof beyond reasonable doubt.²²

Witness for the prosecution SPO4 Gilbert C. Senados admitted that his records were outdated, i.e., that his Master List of holders of firearms only covered licenses up to 1994; that it was possible for the petitioner to acquire a license after 1994; and that he issued the Certification, dated May 18, 1998, stating that the petitioner carried no license or permit to possess the guns because he was ordered to do so by his superiors.²³

There is no evidence that between 1994 and May 8, 1998, the date the crime was allegedly committed, no license was issued to petitioner.

While the prosecution was able to establish the fact that the subject firearm was seized by the police from the possession of the petitioner, without the latter being able to present any license or permit to possess the same, such fact alone is not conclusive proof that he was not lawfully authorized to carry such firearm. In other words, such fact does not relieve the prosecution from its duty to establish the lack of a license or permit to carry the firearm by clear and convincing evidence, like a certification from the government agency concerned.²⁴

Thus, for failure of the prosecution to prove beyond reasonable doubt that petitioner was carrying a firearm without prior authority, license or permit, the latter must be exculpated from criminal liability under P.D. No. 1866, as amended.

With respect to the charge of violating Section 261(q) of B.P. Blg. 881, as amended, otherwise known as the Omnibus Election Code, the Court is constrained to affirm the conviction of the petitioner, since the prosecution successfully discharged its burden of proof.

Section 261 of B.P. Blg. 881 (Omnibus Election Code), as originally worded, provides:

Sec. 261. Prohibited Acts. – The following shall be guilty of an election offense:

(q) Carrying firearms outside residence or place of business. – Any person who, although possessing a permit to carry firearms, carries any firearms outside his residence or place of business during the election period, unless authorized in writing by the Commission: Provided, That a motor vehicle, water or air craft shall not be considered a residence or place of business or extension hereof.

x x x x (Emphasis supplied)

Section 32 of Republic Act No. 7166 (R.A. No. 7166), amending Section 261 of the Omnibus Election Code, provides:

SEC. 32. Who May Bear Firearms. – During the election period, no person shall bear, carry or transport firearms or other deadly weapons in public places, including any building, street, park, private vehicle or public conveyance, even if licensed to possess or carry the same, unless authorized in writing by the Commission. The issuance of firearm licenses shall be suspended during the election period. (Emphasis supplied)

In view of the foregoing provisions, while it is well-settled that under P.D. No. 1866, as amended, the burden to prove the negative allegation that the accused has no license or permit to carry a firearm lies with the prosecution; under the Omnibus Election Code, however, the burden to adduce evidence that accused is exempt from the COMELEC Gun Ban, lies with the accused.

Section 32 of R.A. No. 7166 is clear and unequivocal²⁵ that the prohibited act to which this provision refers is made up of the following elements: 1) the person is bearing, carrying, or transporting firearms or other deadly weapons; 2) such possession occurs during the election period; and, 3) the weapon is carried in a public place. Under said provision, it is explicit that even if the accused can prove that he is holding a valid license to possess such firearm, this circumstance by itself cannot exculpate him from criminal liability. The burden is on the accused to show that he has a written authority to possess such firearm issued by no less than the COMELEC.

On this point, the petitioner failed to present any form of such authority, and, therefore, his conviction must be affirmed.

Section 264 of the Omnibus Election Code provides:

Sec. 264. Penalties. – Any person found guilty of any election offense under this Code shall be punished with imprisonment of not less than one year but not more than six years and shall not be subject to probation. In addition, the guilty party shall be sentenced to suffer disqualification to hold public office and deprivation of the right of suffrage. If he is a foreigner, he shall be sentenced to deportation which shall be enforced after the prison term has been served.

The CA affirmed the penalty imposed by the RTC. However, the RTC failed to apply Section 1 of the Indeterminate Sentence Law²⁶ which provides:

SECTION 1. Hereafter, in imposing a prison sentence for an offense punished by the Revised Penal Code, or its amendments, the court shall sentence the accused to an indeterminate sentence the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of the said Code, and the minimum which shall be within the range of the penalty next lower to that prescribed by the Code for the offense; and if the offense is punished by any other law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the same.

Thus, the penalty that should be meted out to petitioner should have a minimum and a maximum period. The Court deems it reasonable that petitioner should suffer imprisonment for a period of one (1) year as the minimum and two (2) years, as the maximum.

Furthermore, under Section 34 of R.A. No. 7166, the subject firearm shall be disposed of according to existing laws, which, in this case, must be read in light of Article 45 of the Revised Penal Code, to wit:

Art. 45. Confiscation and forfeiture of the proceeds or instruments of the crime.— Every penalty imposed for the commission of a felony shall carry with it the forefeiture 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.1awphi1.net

WHEREFORE, the petition is partly GRANTED. The Decision dated November 29, 2002 of the Court of Appeals is REVERSED and SET ASIDE insofar as Criminal Case No. 4559-98 is concerned. Petitioner Rodolfo Abenes Y Gacutan is ACQUITTED from the charge of illegal possession of firearm under P.D. No. 1866, as amended, for failure of the prosecution to prove his guilt beyond unreasonable doubt.

With respect to Criminal Case No. 4563-98, the assailed Decision of the Court of Appeals is AFFIRMED with MODIFICATIONS that petitioner is sentenced to an indeterminate sentence of one year of imprisonment as minimum to two years of imprisonment as maximum, not subject to probation; and he shall suffer DISQUALIFICATION to hold public office and DEPRIVATION of the right of suffrage. The subject firearm is CONFISCATED and FORFEITED in favor of the Government.