It is presumed that illegal fishing has been committed when fish caught or killed with the use of explosives, obnoxious or poisonous substances or by electricity are found in a fishing boat.

Petitioners point out that the fact that neither explosives nor related paraphernalia were found in their possession is an indication of their innocence.

We do not agree.  First, it is quite probable that petitioners dumped these materials into the sea while the raiding party was approaching.   Moreover, Section 33, Presidential Decree No. 704, as amended by Presidential Decree No. 1058, provides:

Sec. 33.  Illegal fishing; xxx — It shall be unlawful for any person to catch, take or gather, or cause to be caught, taken or gathered fish or fishery/aquatic products in Philippine waters with the use of explosives, obnoxious or poisonous substance, or by the use of electricity as defined in paragraphs (l),[7] (m)[8] and (d),[9] respectively, of Sec. 3 hereof xxx.


The discovery of dynamite, other explosives and chemical compounds containing combustible elements, or obnoxious or poisonous substance, or equipment or device for electric fishing in any fishing boat or in the possession of a fisherman shall constitute a presumption that the same were used for fishing in violation of this Decree, the discovery in any fishing boat of fish caught or killed by the use of explosives, obnoxious or poisonous substance or by electricity shall constitute a presumption that the owner, operator or fisherman were fishing with the use of explosives, obnoxious or poisonous substance or electricity.

In Hizon vs. Court of Appeals,[10] this Court held that the law, as contained in the last paragraph of Section 33, creates a presumption that illegal fishing has been committed when fish caught or killed with the use of explosives, obnoxious or poisonous substances or by electricity are found in a fishing boat.  In this case, it cannot be denied that the fishes found in petitioners’ banca were caught or killed by the use of explosives.

The penalty imposed by law[26] for illegal fishing if explosive is actually used is imprisonment ranging from twenty (20) years to life imprisonment.  The Indeterminate Sentence Law provides that if, as in this case, the offense is punished by a law other than the Revised Penal Code, 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.[27] The trial court therefore erred when it sentenced petitioners to “suffer a straight penalty of twenty (20) years imprisonment.”[28] In Spouses Jose and Trinidad Bacar vs. Judge Salvador P. de Guzman, Jr.,[29] we held that it was erroneous to impose a straight penalty of six (6) years imprisonment on the accused for homicide.   We explained:

xxx.  It is basic law that xxx the application of the Indeterminate Sentence Law is mandatory where imprisonment exceeds one (1) year, except only in the following cases:

a.  Offenses punished by death or life imprisonment.

b.  Those convicted of treason (Art. 114), conspiracy or proposal to commit treason (Art. 115).

c.  Those convicted of misprision of treason (Art. 116), rebellion (Art. 134), sedition (Art.139), or espionage (Art. 117).

d.  Those convicted of piracy (Art. 122).

e.  Habitual delinquents(Art. 62, par. 5).

Recidivists are entitled to an indeterminate sentence.   (People v. Jaramilla, L-28547, Feb. 22, 1974).   Offender is not disqualified to avail of the benefits of the law even if the crime is committed while he is on parole.  (People v. Calreon, CA 78 O.G. 6701, Nov. 19, 1982).

f.  Those who escaped from confinement or those who evaded sentence.

g.  Those granted conditional pardon and who violated the terms of the same (Art. 159)(People v. Corral, 74 Phil. 359).

h.  Those whose maximum period of imprisonment does not exceed one year.

Where the penalty actually imposed does not exceed one year, the accused cannot avail himself of the benefits of the law, the application of which is based upon the penalty actually imposed in accordance with law and not upon that which may be imposed in the discretion of the Court.  (People v. Hidalgo, [CA] G.R. No. 00452-CR, Jan. 22, 1962).

i. Those who are already serving final judgment upon the approval of the Indeterminate Sentence Law.

The need for specifying the minimum and maximum periods of the indeterminate sentence is to prevent the unnecessary and excessive deprivation of liberty and to enhance the economic usefulness of the accused, since he may be exempted from serving the entire sentence, depending upon his behavior and his physical, mental, and moral record. The requirement of imposing an indeterminate sentence in all criminal offenses whether punishable by the or by special laws, with definite minimum and maximum terms, as the Court deems proper within the legal range of the penalty specified by the law must, therefore, be deemed mandatory.[30]

Accordingly, the proper penalty to be imposed upon the accused should be an indeterminate penalty which is hereby set at twenty (20) years as minimum to twenty-five (25) years as maximum.

About Erineus

Born on December 28, 1965, Surallah, South Cotabato, Southern Mindanao, Philippines.
This entry was posted in Illegal Fishing, Indeterminate Sentence Law, Penalties, Torts and Damages and tagged , . Bookmark the permalink.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s