PROCEDURE FOR SECURING PERMIT/CLEARANCE
The Implementing Rules provided for the method of obtaining clearance or permit. No fee will be charged for the issuance of the clearance/permit. Failure to secure clearance/permit shall be punished as a fence, that may result to the cancellation of business license.
1. The Station Commander shall require the owner of a store or the President, manager or responsible officer in having in stock used secondhand articles, to submit an initial affidavit within thirty (30) days from receipt of notice for the purpose thereof and subsequent affidavits once every fifteen (15) days within five (5) days after the period covered, which shall contain:
- complete inventory of such articles including the names and addresses from whom the articles were acquired.
- Full list of articles to be sold or offered for sale including the time and place of sale
- Place where the articles are presently deposited.
The Station Commander may, require the submission of an affidavit accompanied by other documents showing proof of legitimacy of acquisition.
2. Those who wish to secure the permit/clearance, shall file an application with the Station Commander concerned, which states:
- name, address and other pertinent circumstances
- article to be sold or offered for sale to the public and the name and address of the unlicensed dealer or supplier from whom such article was acquired.
- Include the receipt or document showing proof of legitimacy of acquisition.
3. The Station Commander shall examine the documents attached to the application and may require the presentation of other additional documents, if necessary, to show satisfactory proof of the legitimacy of acquisition of the article, subject to the following conditions:
- if the Station Commander is not satisfied with the proof of legitimacy of acquisition, he shall cause the publication of the notice, at the expense of the one seeking clearance/permit, in a newspaper of general circulation for two consecutive days, stating:
- articles acquired from unlicensed dealer or supplier
- the names and addresses of the persons from whom they were acquired
- that such articles are to be sold or offered for sale to the public at the address of the store, establishment or other entity seeking the clearance/permit.
4. If there are no newspapers in general circulation, the party seeking the clearance/permit shall, post a notice daily for one week on the bulletin board of the municipal building of the town where the store, firm, establishment or entity is located or, in the case of an individual, where the articles in his possession are to be sold or offered for sale.
5. If after 15 days, upon expiration of the period of publication or of the notice, no claim is made to any of the articles enumerated in the notice, the Station Commander shall issue the clearance or permit sought.
6. If before expiration of the same period for the publication of the notice or its posting, it shall appear that any of the articles in question is stolen property, the Station Commander shall hold the article in restraint as evidence in any appropriate case to be filed.
Articles held in restraint shall kept and disposed of as the circumstances of each case permit. In any case it shall be the duty of the Station Commander concerned to advise/notify the Commission on Audit of the case and comply with such procedure as may be proper under applicable existing laws, rules and regulations.
7. The Station Commander shall, within seventy-two (72) hours from receipt of the application, act thereon by either issuing the clearance/permit requested or denying the same. Denial of an application shall be in writing and shall state in brief the reason/s thereof.
8. Any party not satisfied with the decision of the Station Commander may appeal the same within 10 days to the proper INP (now PNP) District Superintendent and further to the INP (now PNP) Director. The decision of the Director can still be appealed top the Director-General, within 10 days, whose decision may be appealed with the Minister (now Secretary) of National Defense, within 15 days, which decision is final.
PRESUMPTION OF FENCING
Mere possession of any good, article, item, object or anything fo value which has been the subject of robbery or thievery, shall be prima facie evidence of fencing.
ELEMENTS
- A crime of robbery or theft has been committed;
- The accused, who is not a principal or accomplice in the commission of the crime of robbery or theft, buys, receives, possess, keeps, acquires, conceals, sells, or disposes, or buys and sells, or in any manner deals in any article, item, object or anything of value, which has been derived from the proceeds of the said crime;
- The accused knows or should have known that the said article, item, or object or anything of value has been derived from the proceeds of the crime of robbery or theft; and
- There is, on the part of the accused, intent to gain for himself or for another. (Dizon-Pamintuan vs People, GR 111426, 11 July 94)
As regards the first element, the crime of robbery or theft should have been committed before crime of fencing can be committed. The person committing the crime of robbery or theft, may or may not be the same person committing the crime of fencing. As in the case of D.M. Consunji, Inc., vs. Esguerra, quantities of phelonic plywood were stolen and the Court held that qualified theft had been committed. In People vs. Lucero there was first a snatching incident, where the bag of Mrs. Maripaz Bernard Ramolete was snatch in the public market of Carbon, Cebu City, where she lost a Chinese Gold Necklace and pendant worth some P4,000.00 to snatchers Manuel Elardo and Zacarias Pateras. The snatchers sold the items to Manuel Lucero. Consequently, Lucero was charged with violation of the Anti-Fencing Law. However, in this case, no eyewitness pointed to Lucero as the perpetrator and the evidence of the prosecution was not strong enough to convict him.
The second element speaks of the overt act of keeping, buying, receiving, possessing, acquiring, concealing, selling or disposing or in any manner deals with stolen items. It is thus illustrated in the case of Lim vs. Court of Appeals, where the accused, Juanito Lim stored and kept in his bodega and subsequently bought or disposed of the nine (9) pieces of stolen tires with rims owned by Loui Anton Bond.
The accused known or should have known that the goods were stolen. As pointed out in the case of People vs. Adriatico, the court in convicting Norma Adriatico, stated that it was impossible for her to know that the jewelry were stolen because of the fact that Crisilita was willing to part with a considerable number of jewelry at measly sum, and this should have apprised Norma of the possibility that they were stolen goods. The approximate total value of the jewelry were held to be at P20,000.00, and Norma having bought it from Crisilita for only P2,700. The court also considered the fact that Norma engage in the business of buying and selling gold and silver, which business is very well exposed to the practice of fencing. This requires more than ordinary case and caution in dealing with customers. As noted by the trial court:
“. . . the Court is not inclined to accept the accused’s theory of buying in good faith and disclaimer of ever seeing, much more, buying the other articles. Human experience belies her allegations as no businessman or woman at that, would let go of such opportunities for a clean profit at the expense of innocent owners.’’
The Court in convicting Ernesto Dunlao Sr., noted that the stolen articles composed of farrowing crates and G.I. pipes were found displayed on petitioner’s shelves inside his compound. (Dunalao, Sr. v. CA, 08/22/96)
In the case of People v. Muere (G.R.12902, 10/18/94), the third element was not proven. This case involves the selling of alleged stolen Kenwood Stereo Unit in the store Danvir Trading, owned by the spouses Muere. The store is engaged in buying and selling of second hand merchandise located at Pasay Road, Makati. The said stereo was bought from Wynn’s Audio, an existing establishment. The court held that there is no proof that the spouses Muere, had knowledge of the fact that the stereo was stolen. The spouses Muere purchased the stereo from a known merchant and the unit is displayed for sale in their store. These actions are not indicative of a conduct of a guilty person.
On the same vein, the third element did not exist in the case of D.M. Consunji, Inc. (Consunji v. Esguerra, 07/30/96) where the subject of the court action are the alleged stolen phelonic plywood owned by D.M. Consunji, Inc., later found to be in the premises of MC Industrial Sales and Seato trading Company, owned respectively by Eduardo Ching and the spouses Sy. Respondents presented sales receipts covering their purchase of the items from Paramount Industrial, which is a known hardware store in Caloocan, thus they had no reason to suspect that the said items were products of theft.
The last element is that there is intent to gain for himself or for another. However, intent to gain need not be proven in crimes punishable by a special law such as the Anti-Fencing Law. The crimes punishable by special laws are called “acts mala prohibita“. The rule on the subject is that in acts mala prohibita, the only inquiry is that, has the law been violated? (in Gatdner v. People, as cited in US v. Go Chico, 14 Phils. 134) When the act is prohibited by law, intent is immaterial.
Likewise, dolo or deceit is immaterial in crimes punishable by special statute like the Anti-Fencing Law. It is the act itself which constitutes the offense and not the motive or intent. Intent to gain is a mental state, the existence if which is demonstrated by the overt acts of the person. The mental state is presumed from the commission of an unlawful act. (Dunlao v. CA) again, intent to gain is a mental state, the existence of which is demonstrated by the overt acts of person, as the keeping of stolen items for subsequent selling.
