On the same day. Judge Nickarter A. Ontal, then Presiding Judge of the Regional Trial Court, Branch XXXIII, Dumaguete City, pursuant to the said "Application for Search Warrant" and "Deposition of Witness", issued Search Warrant No. 1, directing the aforesaid police officers to search the room of Marlon Silva in the residence of Nicomedes Silva for violation of Republic Act No. 6425, otherwise known as the Dangerous Drugs Act of 1972. as amended. Pertinent portions of Search Warrant No. 1 read as follows:

In the course of the search, the serving officers also seized money belonging to Antonieta Silva in the amount of P1,231.40.

A motion for reconsideration dated September 1, 1987 filed by petitioners was likewise denied by Judge Cruz in an order dated October 19, 1987.

Hence, this special civil action for certiorari.

Petitioners allege that the issuance of Search Warrant No. 1 was tainted with illegality and that respondent Judge should be viewed to have acted without or in excess of jurisdiction, or committed grave abuse of discretion amounting to lack of jurisdiction when he issued the Order dated August 11, 1987, denying their motion to quash Search Warrant No, 1.

We rule for petitioners.

Section 2, Article III (Bill of Rights) of the 1987 Constitution guarantees the right to personal liberty and security of homes against unreasonable searches and seizures. This section provides:

Thus, Sections 3 and 4, Rule 126 of the Rules of Court provide for the requisites for the issuance of a search warrant, to wit:

Based on the aforecited constitutional and statutory provisions, the judge must, before issuing a search warrant, determine whether there is probable cause by examining the complainant and witnesses through searching questions and answers.

In the case of Prudente vs. Dayrit, G.R. No. 82870, December 14, 1989, 180 SCRA 69, 767 this Court defined "probable cause" as follows:

In the case at bar, we have carefully examined the questioned search warrant as well as the "Application for Search Warrant" and "Deposition of Witness", and found that Judge Ontal failed to comply with the legal requirement that he must examine the applicant and his witnesses in the form of searching questions and answers in order to determine the existence of probable cause. The joint "Deposition of Witness" executed by Pfc. Alcoran and Pat. Quindo, which was submitted together with the "Application for Search Warrant" contained, for the most part suggestive questions answerable by merely placing "yes" or "no" in the blanks provided thereon. In fact there were only four (4) questions asked, to wit:

The above deposition did not only contain leading questions but it was also very broad. The questions propounded to the witnesses were in fact, not probing but were merely routinary. The deposition was already mimeogragphed and all that the witnesses had to do was fill in their answers on the blanks provided.

In the case of Nolasco vs. Paño, G.R. No. 69803, October 8, 1985, 139 SCRA 152, 163, this Court held:

Likewise, in the Prudente case cited earlier, this Court declared the search warrant issued as invalid due to the failure of the judge to examine the witness in the form of searching questions and answers. Pertinent portion of the decision reads:

Thus, in issuing a search warrant, the judge must strictly comply with the constitutional and statutory requirement that he must determine the existence of probable cause by personally examining the applicant and his witnesses in the form of searching questions and answers. His failure to comply with this requirement constitutes grave abuse of discretion. As declared in Marcelo vs. De Guzman, G.R. No. L-29077, June 29, 1982, 114 SCRA 657, "the capricious disregard by the judge in not complying with the requirements before issuance of search warrants constitutes abuse of discretion".

The officers implementing the search warrant clearly abused their authority when they seized the money of Antonieta Silva. This is highly irregular considering that Antonieta Silva was not even named as one of the respondents, that the warrant did not indicate the seizure of money but only of marijuana leaves, cigarettes and joints, and that the search warrant was issued for the seizure of personal property (a) subject of the offense and (b) used or intended to be used as means of committing an offense and NOT for personal property stolen or embezzled or other proceeds of fruits of the offense. Thus, the then presiding Judge Ontal likewise abused his discretion when he rejected the motion of petitioner Antonieta Silva seeking the return of her seized money.

WHEREFORE, the petition is granted. Search Warrant No. 1 is hereby declared null and void. Respondent Judge of the Regional Trial Court of Negros Oriental, Branch XXXIII is directed to order the return to petitioner Antonieta Silva of the amount of P1,231.40 which had earlier been seized from her by virtue of the illegal search warrant. This decision is immediately executory. No costs.

SO ORDERED.

Gutierrez, Jr., Feliciano, Bidin and Davide, Jr., JJ., concur.