The chief of the Anti Organized Crime Division of the Criminal Investigation and Detection Group yesterday asked the Bacolod Regional Trial Court Branch 42 to turn over the 76 firearms seized from the ancestral house of Pulupandan Mayor Magdaleno Peña, to Branch 85 of the Quezon City RTC.
Senior Supt. Jose Mario Espino, chief of the Anti Organized Crime Division of the CIDG, SPO3 Rosendo Bersal and SPO2 Jeyvee Aglipay, as intervenors, filed an answer-in-intervention with counterclaim, and motion for the return of seized firearms in response to a replevin case filed by Pulupandan Mayor-elect Miguel Peña and four firms.
Espino also filed a supplemental motion for the return of the seized firearms to RTC Branch 85 instead of the PNP Scene of the Crime Office of Negros Occidental where they were previously held.
They are also asking that the plaintiffs, Miguel Peña and Golden Lake Mineral Resources Inc., JHMA Marin Holdings and Kentfield Corp. which he represents as their president/chairman of the board, Vegas Exploration and Mining Corp, represented by its president Federico Infante Jr., and their lawyers, Roem Arbolado and Sahlee Gail Yparosa-Lobaton, jointly pay P20 million in damages to the CIDG.
WRIT OF REPLEVIN
Miguel Peña and the four firms claiming ownership of 76 of the firearms seized by the CIDG from the ancestral house in Barangay Ubay, Pulupandan on May 2, filed a civil case last week for replevin.
As a result, RTC Branch 42 Judge Fernando Elumba issued a writ of replevin, allowing the sheriff to take custody of all 76 firearms from the SOCO Thursday night and Friday morning, and they are now being kept at the Bacolod Hall of Justice.
The firearms could be released to Miguel Peña and the four firms five days after the seizure by the sheriff if the judge rules against the CIDG claims.
Espino, Bersal and Aglipay, as intervenors, also asked the court to dismiss the civil case filed by Peña before RTC Branch 42 for lack of merit.
They said the seized firearms were with the SOCO in Negros Occidental that was conducting ballistics examinations on them.
The intervenors said the filing of replevin complaint before the Bacolod RTC is malicious and deceptive because of the pendency of cases involving the same firearms in Branch 85 of the Quezon City RTC, the criminal complaint before the Department of Justice and a preliminary investigation at the Bacolod City Prosecutor’s Office for the illegal possession of firearms, ammunition and explosives.
Replevin cannot be availed of if the property is in custodia legis (in the custody of the law) where it is under a search warrant, they said.
“Undoubtedly, these firearms, ammunition, magazines and accessories subject of the writ of replevin are under custodia legis,” they added.
They also said there are material allegations in the civil case for replevin that are downright false.
The defendants, Chief Inspectors Fernando Salvatierra and Ramonit Javier, are not the parties-in-interest in the case at bar, the court was told. It is the defendant intervenors who are the proper parties because they represented the PNP-CIDG in the filing of cases against Pulupandan Mayor Magdaleno Peña and several others.
The intervenors said there are also discrepancies in the firearms claimed in the civil case for replevin.
Some of those claimed by the corporations are not those which are in the custody of the PNP-CIDG, as can be seen in the first three digits of their serial numbers, the intervenors said.
It was also noted that Arbolado has failed to present the papers of the four corporations claiming ownership of the guns.
The plaintiffs’ denial that the recovered two pieces of TNT does not belong to them is obviously because they do not have a license to show, hence the denial, the intervenors also said.
The court was told the reason for taking the firearms from the ancestral home of Peña is for ballistics examination, presentation of the original firearms licenses and the necessary papers to explain why such magnitude of firearms are in the Ubay residence.
The 12 unlicensed firearms as mentioned in Annex M of the complaint have marked differences from the ones being presented by the complainants, the court was also told.
Hence, the issuance of the writ of replevin was secured through fraud by the plaintiffs alleging untruthful statements in their complaint, the intervenors said.
Arbolado himself submitted himself to the jurisdiction of Branch 85 of RTC Quezon City, it was pointed out.
“The filing of replevin despite the pendency of his motion in another jurisdiction is forum shopping. Forum-shopping is not allowed in our courts,” the intervenors added.
Meanwhile, Salvatierra, in his answer filed yesterday before RTC Branch 42 in Bacolod to the civil case for replevin against him, said he is not the custodian of the firearms seized from the ancestral house of Peña.
“These items, by virtue of a search warrant, will be turned over to the court that issued the warrant,” he said.
Salvatierra said he could not turn over the firearms to Arbolado or his principals because he does not have the authority to do so.
While Arbolado said that Mayor Magdaleno Peña is no longer residing in his ancestral house in Ubay, evidence proves to the contrary, he also said.
The mayor’s COMELEC record, Permit to Carry Firearms Outside Residence and the Certification from the Firearms and Explosives Division prove that he is a resident of Barangay Ubay, Salvatierra said.
Arbolado could not be reached for comment as of press time yesterday.
Magdaleno Peña has maintained that the two TNTs seized from the ancestral house were planted and that all of the firearms are licensed.
The firearms currently at the Bacolod Hall of Justice are being secured by the police, members of the Special Action Forces, and personnel of Peña.*CPG