People v. Ediza

[CA No. 07518-CR. September 8, 1970.] THE PEOPLE OF THE PHILIPPINES , plaintiff and appellee , vs . BEN EDIZA , accused and appellant . Filemon L . Fernandez for accused and appellant. Solicitor General Antonio P . Barredo, Assistant Solicitor General Felicisimo R . Rosete and Solicitor Buenaventura J . Guerrero for plaintiff and appellee. SYLLABUS CONTRABAND; POSSESSION OF IMPORTED CIGARETTES SUBJECT TO SPECIFIC TAXES; REQUISITES. In a prosecution for violation of Section 174 of the National Internal Revenue Code, which punishes any person who owns and/or is found in possession of imported articles subject to specific tax, the tax on which has not been paid in accordance with law, the information must allege that the articles found in the possession of the accused are imported, otherwise, the same is fatally defective. D E C I S I O N SORIANO , J p : Accused Ben Ediza was charged before the CFI of Cebu with violating Section 174 of the National Internal Revenue Code, as amended, in: LLcd "That on or about the 12th day of April, 1966 at about 7:00 o'clock P.M., in the City of Cebu, Philippines and within the jurisdiction of this Honorable Court, the said accused, with deliberate intent, did then and there keep in his control and possession articles subject to specific tax, the tax on which has not been paid in accordance with law, consisting of the following: TOTAL SPECIFIC QUANTITY BRAND TAX DUE "Eleven (11) sticks "Union" P.2904 the specific unpaid tax due on the same amounted to P.2904, Philippine Currency. "CONTRARY TO LAW." He pleaded not guilty to the aforequoted information and, after trial, he was found guilty of the alleged violation and "sentenced to suffer an imprisonment of Five (5) Days and to pay a fine of Fifty (P50.00) Pesos with subsidiary imprisonment in case of insolvency not to exceed one third (1/3) of the term of imprisonment and to pay the costs." He now appeals to us from the decision of the lower court on the following: "ASSIGNMENT OF ERRORS I "The lower Court erred in finding the eleven (11) sticks of cigarettes seized, from the store of the accused appellant to be 'contraband cigarettes'. II "The lower Court erred in finding that 'the law punishing illegal possession of untaxed cigarettes does not require prior knowledge as an essential element of the crime.' III "The lower Court erred in 'finding the accused guilty beyond reasonable doubt of the crime of illegal possession of untaxed articles'". The said appeal deserves our favorable consideration, as will presently be shown. Appellant having been charged under Section 174 of the National Internal Revenue Code pertinently reading "Any person who owns and/or is found in possession of imported articles subject to specific tax, the tax on which has not been paid in accordance with law, . . . shall be punished . . ." it follows that an important element of the said violation is that the articles found in appellant's possession be imported. Note that there is no allegation in the aforequoted information that the eleven (11) sticks of Union cigarettes found in appellant's possession are imported, hence the said information is fatally defective. Neither is there any clear evidence to this effect, all that prosecution's witness Nestor Muoz testified on this score being the following: "Q: How did you know that these cigarettes are of foreign manufacture? A: Because these foreign manufactured cigarettes with Virginia Tobacco brand, the color is paler than the locally manufactured cigarettes which is made of local tobacco and the color is darked. The aroma smells somewhat sweeter than the locally made cigarettes" (Trans. pp. 31-32). We cannot convict appellant on the testimony just quoted because it is not easy to detect whether cigarettes are imported or locally manufactured from their color and smell alone. Moreover, those allegedly found in appellant's possession being only eleven (11) sticks (Exhibits A-1 to A-11), it is equally difficult to ascertain therefrom that they are imported, as contemplated by law, since they could very well have been brought into the country by visiting transients and innocently given away to local residents without any intention of violating the law. It will also not escape attention that the penalty for the offense at bar is based, among other, on the appraised value of the imported articles, and there is likewise neither allegation nor proof as to the appraised value of the said eleven (11) sticks of cigarettes. With respect to the allegation of the information that the said cigarettes are untaxed, the same witness Nestor Muoz for the prosecution testified that he knows this to be so "Because when I examined the pack this does not bear the BIR Strip stamp of the Republic of the Philippines to denote payment of specific tax as required the National Revenue Code and that on the pack of said cigarettes, there is no inscription 'FOR EXPORT TO THE PHILIPPINES as required by revenue regulations for regularly imported cigarettes" (Trans, p. 32). The said testimony finds a sufficient answer at pages 10-11 of appellants brief, to wit: "And considering that the pack in question (Exhibit A) was already open at the time of seizure, and the blue seal thereon even torn (Exhibits A-12 and A-15), we cannot completely exclude the possibility that originally, the pack bore a BIR stamp which peeled off when the pack was opened a possibility demonstrated to the lower court during the trial of this case (TSN-Escabas, p. 22). The absence of the inscription 'FOR EXPORT TO THE PHILIPPINES' from the pack in question which, according to Atty. Muoz, is required by revenue regulation 'for regularly imported cigarettes', does not all indicate non-payment of specific taxes." The record finally discloses that the eleven (11) sticks of cigarettes in question were openly displayed in appellant's store together with other brands. When Sgt. Amado Ru Cabanas asked for them, appellant did not make any attempt to hide them. On the contrary, appellant readily handed them over to said sergeant. The latter's testimony to this effect is as follows: "I asked the owner of the store for one (1) pack of blue seal cigarettes but Ben Ediza answered that he has blue seal cigarettes but not one pack, only by sticks. I told the accused, 'whatever you have there, I will buy' and then the accused handed to me a package with eleven (11) sticks of 'Union' blue seal cigarettes inside it." In other words, there was nothing concealed or surreptitious or clandestine about appellant's possession of the said cigarettes, thus negating any criminal purpose on his part because he did not know that the said articles are those possession of which is unlawful. His case therefore does not fall under the purview of said Section 174 of the National Internal Revenue Code as amended, which contemplates and punishes one who, knowing an article to be imported and subject to specific tax which has not been paid, is found to be the owner or in possession thereof. Otherwise, anyone may be penalized under the said law however innocently he may come upon the possession of such imported and untaxed article. WHEREFORE, the appealed decision is hereby reversed, and appellant BEN EDIZA is hereby acquitted of the offense with which he stand charged, with costs de oficio , and his bail is hereby cancelled. cdll SO ORDERED. Lucero and Yatco, JJ . , concur.