It's now the word of his superior, Supt. Cornelio Defensor, against that of Chief Inspector Jefferson Descallar who arrested a Cadiz resident in 2007, mistaking him for a wanted person with a reward of P60,000 for his apprehension.

Descallar was slapped with one month suspension without pay for simple misconduct, and recommended for indictment by the Office of the Deputy Ombudsman for the Military and other Law Enforcement Office, for arbitrary detention and violation of Section 4 of RA 7438, or Act Defining Certain Rights of Persons Arrested, Detained, or Under Custodial Investigation.

Loranzon Alminaza, counsel of Descallar, said his client cannot be faulted for any inference of arbitrary detention, in the arrest in Brgy. Andres Bonifacio, Cadiz City , in February last year of Marcelino Palomo, who was mistaken for Romeo Palomo, one of the 20 most wanted persons in Western Visayas . He said Descallar was acting in good faith upon initial assurance of his superior, Supt. Cornelio Defensor, then chief of the Regional Investigation and Intelligence Division of the Western Visayas police.

The Ombudsman for the Military dismissed similar complaints against Defensor, then chief of the Regional Intelligence and Investigation Division of the Western Visayas, and PO1 Richard Lampon, a member of the Cadiz police force, for lack of probable cause.

Alminaza claimed that, under the doctrine of command responsibility, and following to the lawful order of a superior officer, Descallar cannot be held for violation of arbitrary detention, and if any should be held responsible it should be Defensor.

Descallar emphasized that he sent a recently taken picture of Marcelino Palomo to Defensor through electronic mail on the evening of Feb. 10, 2007 , hours after the arrest of Marcelino in Cadiz City .

Descallar added that he was advised by Defensor to hold Palomo pending confirmation of his identification.

“The fact of sending picture of Palomo through E-mail was never controverted, denied or even commented on by Defensor,” Alminaza said.

Defensor, on the other hand, said it was Descallar who informed him that they arrested Palomo and that he even inquired how much the reward was.

Defensor added that he ordered the release of Marcelino who was brought by Descallar to his office, after PO2 Rene Palomo, a relative of Romeo Palomo, informed him that he was not the wanted person.

On Nov. 9, 2007 , Marcelino Palomo moved for the dismissal of criminal and administrative complaints against Defensor, clarifying that Defensor did not conduct the investigation.

Marcelino said that if were it not for the meticulous verification of Defensor, he would not have been released from detention.

Graft Investigation and Prosecution Officer Lyn Llamasares, in her recommendation approved by Tanodbayan Merceditas Gutierrez, said Marcelino was not assisted by counsel when he was investigated, which is a violation of Section 4 of RA 7438. “Mere denial of Descallar cannot prevail over the positive assertions of Marcelino that he was not informed of his rights during the custodial investigation,” she added.

Llamasares added the claims of Descallar that he merely obeyed lawful orders is a matter of defense that should be raised in a full-blown trial.

Alminaza also said Descallar cannot be held for violation of RA 7438, as he was not personally handling the investigation and clarificatory questioning of the complainant.*GPB

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