G.R. No. 151205             June 9, 2004

PEOPLE OF THE PHILIPPINES, appellee, vs.MARLOW DE GUZMAN y DELA CRUZ and JESUS VILLANUEVA y CALMA, appellants.

D E C I S I O N

PER CURIAM:

This is an automatic review of the decision of the Regional Trial Court of Malabon Branch 72 in Criminal Case No. 24671-MN finding the two accused, Marlow De Guzman y Dela Cruz and Jesus Villanueva y Calma, guilty of violation of Section 15, Article III of Republic Act No. 6425, as amended by Republic Act No. 7659.

The accused were charged with the crime of drug pushing in an Information that states:

That on or about the 23rd day of March 2001, in the City of Malabon, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and helping with one another, being a police officer and private person respectively and without authority of law, did then and there, willfully, unlawfully and feloniously sell and deliver in consideration of the amount of Two pieces of Five Hundred Peso Bill and mixed with bundles of boodle money to a poseur-buyer white crystalline substance contained in two (2) big resealable plastic bags with markings "RSF-1" and "RSF-2" Net Weight of RSF-1 – 1,049.27 grams and Net Weight of RSF -2 – 1,054.86 grams with a total Net Weight of 2,104.13 grams which substances when subjected to chemistry examination gave positive results for EPHEDRINE HYDROCHLORIDE and METHAMPHETAMINE HYDROCHLORIDE for the contents of RSF-1 and EPHEDRINE HYDROCHLORIDE for the contents of RSF-2 otherwise known as "shabu" which are both regulated drugs.

The prosecution relied on the testimony of NBI Agent Charlemagne Veloso who apprehended the accused in a buy-bust operation conducted on March 23, 2001 in Malabon, Metro Manila. Veloso, a member of the Special Task Force Division, testified that on March 22, 2001, an informant reported that he had set a deal with a certain Mr. Chang for the purchase of two kilos of shabu for P1,000,000.00. The transaction was set at noontime of March 23, 2001 at Wendy’s Restaurant along Edsa, Caloocan City. A team of NBI personnel consisting of Atty. Reynaldo Esmeralda, Dominador Villanueva, Rommel Vallejo, Eric Isidoro, Rolan Fernandez, Job Gayas and Veloso himself, planned a buy-bust operation against Mr. Chang. Veloso was designated as poseur-buyer and the team prepared the marked money mixed with bundles of boodle money to be used in the operation. In the morning of March 23, 2001, the team proceeded to the agreed meeting place, bringing with them the marked money. The members of the team boarded separate vehicles going to

Wendy’s. Veloso and the informant used a private van while the rest of the team rode in two other vehicles. Upon reaching the area, the team coordinated with the local police of Caloocan City. Veloso and the informant entered the restaurant where they met a man who introduced himself as Walter Sy. He was, however, later identified as Marlow De Guzman, a member of the Philippine National Police (PNP), from his official ID which was seized after his apprehension. After some small talk, De Guzman demanded to see the money. Veloso showed him the P500.00 bill mixed with boodle money. De Guzman then instructed them to follow his vehicle, a 1978 Mitsubishi Galant with plate number NEB 391, as somebody was waiting at Tugatog, Malabon. The other members of the team followed them discreetly as they proceeded to Tumariz Street, Tugatog, Malabon. De Guzman was met by Jesus Villanueva who was carrying two plastic bags. De Guzman and Villanueva boarded the van and handed Veloso the two plastic bags. Veloso checked the bags and examined their contents. After confirming that they contained white crystalline substance or shabu, he introduced himself as an NBI operative and gave the pre-arranged signal to the other members of the team. Other team members rushed to their vehicle and helped in apprehending the two suspects. Veloso confiscated the driver’s license of Jesus Villanueva. He also kept the marked money inside the vehicle for safety. Upon arrival at the NBI office, team member Rolan Fernandez took custody of the seized substance and delivered them to the Forensic Chemistry Division for laboratory examination. Fernandez marked the plastic bags before turning them over to the Forensic Chemist. After examining the substance, the NBI Chemist issued a certification that the seized items were positive for methamphetamine hydrochloride. After the arrest of the suspects and examination of the contents of the plastic bags, the NBI did the usual booking preparatory to the inquest proceedings. Upon conclusion of the inquest, the prosecution recommended the filing of an information against the two accused.1

Rolan Fernandez, Special Investigator at the NBI, stated that he was part of the buy-bust team and he was present during the operation against the accused on March 23, 2001. After S/I Veloso arrested De Guzman and his companion, the team immediately proceeded to their office and S/I Veloso turned over to him two transparent plastic bags containing white crystalline substance which appeared to be methamphetamine hydrochloride. He then turned over the plastic bags to the Forensic Chemist for investigation.2

NBI Forensic Chemist Ferdinand I. Cruz confirmed that on March 23, 2001, he received from NBI Agent Rolan Fernandez a request for laboratory examination of two plastic bags with markings "RSF 1" and "RSF 2" containing white crystalline substance. He opened the bags in the presence of Fernandez and weighed the same. He then performed a physical and chemical examination of their contents. The chemical examination revealed that the contents of the plastic bag marked as "RSF 1" are positive for ephedrine hydrochloride and methamphetamine hydrochloride and the contents of the plastic bag marked as "RSF 2" are positive for methamphetamine hydrochloride. He said that ephedrine hydrochloride is a regulated drug.3

The defense presented a different version of the story.

Victor Ermita, a resident of Tugatog, Malabon, Metro Manila, testified that on March 23, 2001, around 12:00 noon, he was buying food at Sabel’s Lugawan in Tugatog, Malabon when he saw a man running and shouting for help. Another man who heard the plea stood and said, "I am a policeman! What’s the problem?" Ermita identified the latter as accused Marlow De Guzman. Some NBI personnel approached De Guzman and held him. De Guzman struggled. The NBI personnel pushed him and handcuffed him after he fell. In the meantime, the man being pursued by the NBI continued to run and evaded his pursuers. The NBI personnel then boarded De Guzman and his companion, Jessie, in a van.4

Accused Marlow De Guzman also took the witness stand. He admitted that he was a police officer assigned to the mobile patrol. He stated that on March 23, 2001, around 11:00 in the morning, he and Jesus Villanueva were at the lugawan of Aling Sabel in Acaro, Lascano Street when he saw a man, a certain Andoy, screaming, "Hinahabol ako!" He stood up and approached the pursuers and introduced himself as police officer. But the latter repelled him. De Guzman pretended to draw a gun from his waist but the pursuers pushed him and identified themselves as NBI agents. De Guzman was arrested, boarded on a van and brought to the NBI office. The NBI personnel kept him in a room and interrogated him. They were insisting that the shabu came from him. De Guzman, however, swore that he saw the alleged shabu for the first time at the NBI office and there was only one plastic bag at that time. Then he heard Atty. Esmeralda ask why only one bag of shabu was taken when there should have been at least three. One of the members replied that he could even produce two to three kilos. When De Guzman went out of the room, he saw Villanueva come in. De Guzman heard sounds from the room as if someone was being boxed and hit. Villanueva came out of the room after thirty minutes with bruises. Villanueva told him that they hit his arm and fingers with a hammer and he could hardly move. De Guzman also told the court that he saw the NBI personnel dividing money among themselves, saying, "Eto’ng sa iyo, eto’ng sa iyo." They pocketed the money which they divided. He was an armslength away from them.5

The defense also presented NBI Agent Job Gayas as hostile witness. Agent Gayas, who has been with the NBI for eight years, testified that he was part of the buy-bust operation against the two accused, but he was not with the arresting team. He was riding in his own vehicle together with S/I Fernandez and S/I Villa. They stayed about 100 meters away from the scene of the operation. Hence, he did not actually see the transaction between the suspects and the poseur-buyer. They were only advised over the radio of the on-going operations and its consummation. They moved out of the area as soon as the operation was completed. Agent Gayas also testified on some of the standard operating procedures observed during buy-bust operations. He said that it is a standard operating procedure that the suspects undergo a medical check-up before they are committed to detention. The records of the NBI showed that accused Villanueva did not have a medical certificate. He also said that during buy-bust operations, the NBI normally coordinates with the local police when it conducts an operation. In this case, however, the records do not show that the NBI coordinated with the local police of Malabon, although they did with the local police of Caloocan City.6

The trial court believed the version of the prosecution and found both accused guilty of the charge. It meted accused Jesus Villanueva the penalty of reclusion perpetua, and accused Marlow De Guzman the supreme penalty of death, considering the presence of the aggravating circumstance of his being a police officer. The dispositive portion of the decision states:

WHEREFORE, premises considered, judgment is hereby rendered, finding the two accused, namely, Marlow de Guzman y dela Cruz and Jesus Villanueva y Calma guilty beyond reasonable doubt of the crime of drug pushing penalized under Section 15, Art. III, RA 6425, as amended by RA 7659. Considering that accused de Guzman is an admitted policeman or member of the PNP (Exhibit A and Exhibit 2), and considering, further, the fact that the commission by him of the crime of drug pushing was characterized by the use of a motor vehicle, pursuant to Section 24 of the herein mentioned law, accused de Guzman is hereby sentenced to suffer the penalty of DEATH to be executed in the manner provided for by law and applicable regulations. The herein cited circumstances not being applicable to accused Villanueva, the latter is hereby sentenced to suffer imprisonment of RECLUSION PERPETUA.

The two accused are also ordered to pay a fine of P10,000,000.00 each.

The shabu/ephedrine hydrochloride contained in two plastic bags (Exhibit C-5 and C-6) already returned to NBI Forensic Chemist Ferdinand Cruz are hereby forfeited in favor or the government to be disposed under rules governing the same.

Costs against the two accused.

SO ORDERED.

Accused-appellants now assail the decision of the trial court on the following grounds:

1. The trial court gravely erred in convicting the accused-appellants of the crime charged based on the uncorroborated testimony of the poseur-buyer.

2. The trial court gravely erred in convicting the accused-appellants of the crime charged despite the inconsistent, contradictory and impossibility of the testimonies of the witnesses for the prosecution.

3. The trial court gravely erred in convicting the accused-appellants of the crime charged when the prosecution miserably failed to establish their guilt beyond reasonable doubt.7

We affirm the decision of the trial court.

In buy-bust operations, the testimony of the police officers who apprehended the accused is usually accorded full faith and credit because of the presumption that they have performed their duties regularly. The presumption is overturned only if there is clear and convincing evidence that they were not properly performing their duty or that they were inspired by improper motive.8 The courts, nonetheless, are advised to take caution in applying the presumption of regularity. It

should not by itself prevail over the presumption of innocence and the constitutionally-protected rights of the individual. Thus, we discussed in People vs. Doria9 the "objective" test in buy-bust operations to determine the credibility of the testimony of the police officers involved in the operation:

We therefore stress that the "objective" test in buy-bust operations demands that the details of the purported transaction must be clearly and adequately shown. This must start from the initial contact between the poseur-buyer and the pusher, the offer to purchase, the promise or payment of the consideration until the consummation of the sale by the delivery of the illegal drug subject of the sale. The manner by which the initial contact was made, whether or not through an informant, the offer to purchase the drug, the payment of the "buy-bust" money, and the delivery of the illegal drug, whether to the informant alone or the police officer, must be the subject of strict scrutiny by courts to insure that law-abiding citizens are not unlawfully induced to commit an offense. Criminals must be caught but not at all cost. At the same time, however, examining the conduct of the police should not disable courts into ignoring the accused’s predisposition to commit the crime. If there is overwhelming evidence of habitual delinquency, recidivism or plain criminal proclivity, then this must also be considered. Courts should look at all factors to determine the predisposition of an accused to commit an offense in so far as they are relevant to determine the validity of the defense of inducement.

We find the testimony of the poseur-buyer, Charlemagne Veloso, clear and credible. He recounted in full detail how the deal was set by the informant, their initial meeting with De Guzman at Wendy’s in Caloocan City, their agreement to purchase two kilos of shabu for P1,000,000.00, how they met with Villanueva in Tugatog, Malabon, the actual exchange of the plastic bags containing the substance and the boodle money, and the apprehension of the two accused. They also presented before the court the substance confiscated from the appellants10 and the boodle money used in the operation.11

Moreover, the arguments raised by the appellants in their brief deserve scant consideration.

First, the failure of the arresting officers to confiscate and present in evidence the car allegedly used by the appellants during the transaction does not affect the case of the prosecution. The elements that must be established by the prosecution in a case for illegal sale of dangerous drugs are: (1) that the transaction of sale took place and (2) the presentation in court of the corpus delicti or the illicit drug as evidence.12

These were sufficiently proved by the prosecution in the case at bar. The failure of the NBI agents to confiscate and present in evidence the car allegedly used by the appellants is immaterial for it is not an element of the crime and the prosecution has full discretion to determine the pieces of evidence that they will present in court. It is sufficient that they were able to prove the transaction between S/I Veloso and the appellants, and they were able to present in court the substance seized from the appellants which, after chemical examination, were found to contain methamphetamine hydrochloride or shabu.

Second, appellant’s argument that the testimonies of NBI personnel Ferdinand Cruz and Rolan Fernandez do not support S/I Veloso’s testimony also lacks merit. Ferdinand Cruz was the forensic chemist of

NBI. He cannot be expected to testify on the conduct of the buy-bust operation as his only duty was to examine the substance confiscated by the NBI operatives from the suspects to determine its composition and whether it is indeed a prohibited drug. Cruz affirmed that the white crystalline substance contained in the plastic bags taken from the appellants contained methamphetamine hydrochloride and ephedrine hydrochloride. Rolan Fernandez, on the other hand, was a member of the back-up team during the buy-bust operation. He was not with S/I Veloso while the latter was transacting with the suspected drug dealers. He was riding a separate vehicle and stayed 100 meters away from the site of the deal to avoid any suspicion from the drug pushers. Due to the distance and because there was an obstruction in their line of vision, he was not able to see the exchange between S/I Veloso and the appellants. This was also confirmed by S/I Job Gayas who was presented by the defense as hostile witness. Be that as it may, both S/I Fernandez and S/I Gayas testified that the NBI team conducted a buy-bust operation around noontime of March 23, 2001; that they moved from Caloocan City to Tugatog, Malabon where the sale was consummated and where the appellants were apprehended; and that after the operation, S/I Veloso turned over to S/I Fernandez two plastic bags containing white crystalline substance taken from the appellants. Their testimonies do not contradict that of S/I Veloso but in fact complement it.

The other alleged errors imputed by the appellants on the prosecution, such as the failure of S/I Veloso to describe the pre-arranged signal, and the inability of S/I Fernandez to state the number of vehicles used in the operation or to describe the clothing worn by S/I Veloso at the time pertain to minor details which do not significantly affect the guilt of the appellants. Neither does the fact that the plastic bags containing the substance were not sealed when they were turned over to the forensic chemist. Contrary to appellants’ submission, such fact does not necessarily imply that the substance was planted. It has been established that the NBI operatives inspected the contents of the plastic bags before and after the appellants were apprehended. Hence, it is possible that they forgot to seal the plastic bags after checking their contents. Appellants also harp on the fact that De Guzman was carrying his PNP ID at the time of his apprehension. They claim that it is improbable that appellant De Guzman would bring his official ID if it were true that he intended to commit a crime. It suffices to say that such argument is highly speculative.

IN VIEW WHEREOF, the appeal is DISMISSED. The decision of the Regional Trial Court of Malabon Branch 72 in Criminal Case No. 24671-MN is AFFIRMED.13

In accordance with Article 83 of the Revised Penal Code, as amended by section 25 of Republic Act No. 7659, upon finality of this decision, let the records of these cases be forwarded to the Office of the President for possible exercise of executive clemency.

SO ORDERED.

G.R. No. 179940             April 23, 2008

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.NORBERTO DEL MONTE y GAPAY @ OBET, accused-appellant.

D E C I S I O N

CHICO-NAZARIO, J.:

Assailed before Us is the Decision1 of the Court of Appeals in CA-G.R. CR-H.C. No. 02070 dated 28 May 2007 which affirmed with modification the Decision2 of the Regional Trial Court (RTC) of Malolos, Bulacan, Branch 78, in Criminal Case No. 3437-M-02, finding accused-appellant Norberto del Monte, a.k.a. Obet, guilty of violation of Section 5,3 Article II of Republic Act No. 9165, otherwise known as "Comprehensive Dangerous Drugs Act of 2002."

On 11 December 2002, accused-appellant was charged with Violation of Section 5, Article II of Republic Act No. 9165, otherwise known as Comprehensive Dangerous Drugs Act of 2002. The accusatory portion of the information reads:

That on or about the 10th day of December 2002, in the municipality of Baliuag, province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, without authority of law and legal justification, did then and there wilfully, unlawfully and feloniously sell, trade, deliver, give away, dispatch in transit and transport dangerous drug consisting of one (1) heat-sealed transparent plastic sachet of Methylamphetamine Hydrochloride weighing 0.290 gram.4

The case was raffled to Branch 78 of the RTC of Malolos, Bulacan and docketed as Criminal Case No. 3437-M-02.

When arraigned on 20 January 2003, appellant, assisted by counsel de oficio, pleaded "Not Guilty" to the charge.5 On 17 February 2003, the pre-trial conference was concluded.6 Thereafter, trial on the merits ensued.

The prosecution presented as its lone witness PO1 Gaudencio M. Tolentino, Jr., the poseur-buyer in the buy-bust operation conducted against appellant, and a member of the Philippine National Police (PNP) assigned with the Philippine Drug Enforcement Agency (PDEA) Regional Office 3/Special Enforcement Unit (SEU) stationed at the Field Office, Barangay Tarcan, Baliuag, Bulacan.

The version of the prosecution is as follows:

On 10 December 2002, at around 3:00 o’clock in the afternoon, a confidential informant went to the office of the PDEA SEU in Barangay Tarcan, Baliuag, Bulacan and reported that appellant was selling shabu. Upon receipt of said information, a briefing on a buy-bust operation against appellant was conducted. The team was composed of SPO2 Hashim S. Maung, as team leader, PO1 Gaudencio Tolentino, Jr. as the poseur-buyer, and PO1 Antonio Barreras as back-up operative. After the briefing, the team, together with the confidential informant, proceeded to Poblacion Dike for the execution of the buy-bust operation.

When the team arrived at appellant’s place, they saw the appellant standing alone in front of the gate. The informant and PO1 Tolentino approached appellant. The informant introduced PO1 Tolentino to appellant as his friend, saying "Barkada ko, user." PO1 Tolentino gave appellant P300.00 consisting of three marked P100 bills.7 The bills were

marked with "GT JR," PO1 Tolentino’s initials. Upon receiving the P300.00, appellant took out a plastic sachet from his pocket and handed it over to PO1 Tolentino. As a pre-arranged signal, PO1 Tolentino lit a cigarette signifying that the sale had been consummated. PO1 Barreras arrived, arrested appellant and recovered from the latter the marked money.

The white crystalline substance8 in the plastic sachet which was sold to PO1 Tolentino was forwarded to PNP Regional Crime Laboratory Office 3, Malolos, Bulacan, for laboratory examination to determine the presence of the any dangerous drug. The request for laboratory examination was signed by SPO2 Maung.9 Per Chemistry Report No. D-728-2002,10 the substance bought from appellant was positive for methamphetamine hydrochloride, a dangerous drug.

The testimony of Nellson Cruz Sta. Maria, Forensic Chemical Officer who examined the substance bought from appellant, was dispensed after both prosecution and defense stipulated that the witness will merely testify on the fact that the drugs subject matter of this case was forwarded to their office for laboratory examination and that laboratory examination was indeed conducted and the result was positive for methamphetamine hydrochloride.11

For the defense, the appellant took the witness stand, together with his common-law wife, Amelia Mendoza; and nephew, Alejandro Lim.

From their collective testimonies, the defense version goes like this:

On 10 December 2002, appellant was sleeping in his sister’s house in Poblacion Dike when a commotion woke him up. His nephew, Alejandro Lim, was shouting because the latter, together with appellant’s common-law wife, Amelia Mendoza, and a niece, was being punched and kicked by several police officers. When appellant tried to pacify the policemen and ask them why they were beating up his common-law wife and other relatives, the policemen arrested him, mauled him, punched him on the chest, slapped him and hit him with a palo-palo. He sustained swollen face, lips and tooth. His common-law wife was likewise hit on the chest with the palo-palo.

The policemen then took appellant and his common-law wife to a house located in the middle of a field where the former demanded P15,000.00 for their liberty. The next day, appellant was brought to the police station.

Amelia Mendoza identified PO1 Tolentino and PO1 Barreras as the police officers who manhandled them and who demanded P15,000.00 so that she and appellant could go home. The following day at 6:00 a.m., she said her child and cousin arrived with the P15,000.00. She was released but appellant was detained. She does not know why the police officers filed this case against appellant. What she knows is that they were asking money from them.

Alejandro Lim merely corroborated the testimonies of appellant and Amelia Mendoza.

On 8 March 2004, the trial court rendered its decision convicting appellant of Violation of Section 5, Article II of Republic Act No. 9165,

and sentenced him to life imprisonment and to pay a fine of P5,000,000.00. The dispostive portion of the decision reads:

WHEREFORE, the foregoing considered, this Court hereby finds accused Norberto del Monte y Gapay @ Obet GUILTY beyond reasonable doubt of the offense of Violation of Section 5, Art. II of R.A. 9165 and sentences him to suffer the penalty of LIFE IMPRISONMENT and a fine of P5,000,000.00. With cost.

The drugs subject matter of this case is hereby ordered forfeited in favor of the government. The Branch of this Court is directed to turn over the same to the Dangerous Drugs Board within ten (10) days from receipt hereof for proper disposal thereof.12

The trial court found the lone testimony of PO1 Gaudencio M. Tolentino, Jr. to be credible and straightforward. It established the fact that appellant was caught selling shabu during an entrapment operation conducted on 10 December 2002. Appellant was identified as the person from whom PO1 Tolentino bought P300.00 worth of shabu as confirmed by Chemistry Report No. D-728-2002. On the other hand, the trial court was not convinced by appellant’s defense of frame-up and denial. Appellant failed to substantiate his claims that he was merely sleeping and was awakened by the screams of his relatives who were being mauled by the police officers.

Appellant filed a Notice of Appeal on 10 March 2004.13 With the filing thereof, the trial court directed the immediate transmittal of the entire records of the case to us.14 However, pursuant to our ruling in People v. Mateo,15 the case was remanded to the Court of Appeals for appropriate action and disposition.16

On 28 May 2007, the Court of Appeals affirmed the trial court’s decision but reduced the fine imposed on appellant to P500,000.00. It disposed of the case as follows:

WHEREFORE, the appeal is DISMISSED and the decision dated March 8, 2004 of the RTC, Branch 78, Malolos, Bulacan, in Criminal Case No. 3437-M-02, finding accused-appellant Norberto del Monte guilty beyond reasonable doubt of Violation of Section 5, Article II, Republic Act No. 9165, and sentencing him to suffer the penalty of life imprisonment is AFFIRMED with the MODIFICATION that the amount of fine imposed upon him is reduced from P5,000,000.00 to P500,000.00.17

A Notice of Appeal having been timely filed by appellant, the Court of Appeals forwarded the records of the case to us for further review.18

In our Resolution19 dated 10 December 2007, the parties were notified that they may file their respective supplemental briefs, if they so desired, within 30 days from notice. Both appellant and appellee opted not to file a supplemental brief on the ground they had exhaustively argued all the relevant issues in their respective briefs and the filing of a supplemental brief would only contain a repetition of the arguments already discussed therein.

Appellant makes a lone assignment of error:

THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY OF THE OFFENSE CHARGED DESPITE THE INADMISSIBILITY OF THE EVIDENCE AGAINST HIM FOR FAILURE OF THE ARRESTING OFFICERS TO COMPLY WITH SECTION 21 OF R.A. 9165.20

Appellant anchors his appeal on the arresting policemen’s failure to strictly comply with Section 21 of Republic Act No. 9165. He claims that pictures of him together with the alleged confiscated shabu were not taken immediately upon his arrest as shown by the testimony of the lone prosecution witness. He adds that PO1 Tolentino and PO1 Antonio Barreras, the police officers who had initial custody of the drug allegedly seized and confiscated, did not conduct a physical inventory of the same in his presence as shown by their joint affidavit of arrest. Their failure to abide by said section casts doubt on both his arrest and the admissibility of the evidence adduced against him.

At the outset, it must be stated that appellant raised the police officers’ alleged non-compliance with Section 2121 of Republic Act No. 9165 for the first time on appeal. This, he cannot do. It is too late in the day for him to do so. In People v. Sta. Maria22 in which the very same issue was raised, we ruled:

The law excuses non-compliance under justifiable grounds. However, whatever justifiable grounds may excuse the police officers involved in the buy-bust operation in this case from complying with Section 21 will remain unknown, because appellant did not question during trial the safekeeping of the items seized from him. Indeed, the police officers’ alleged violations of Sections 21 and 86 of Republic Act No. 9165 were not raised before the trial court but were instead raised for the first time on appeal. In no instance did appellant least intimate at the trial court that there were lapses in the safekeeping of seized items that affected their integrity and evidentiary value. Objection to evidence cannot be raised for the first time on appeal; when a party desires the court to reject the evidence offered, he must so state in the form of objection. Without such objection he cannot raise the question for the first time on appeal. (Emphases supplied.)

In People v. Pringas,23 we explained that non-compliance with Section 21 will not render an accused’s arrest illegal or the items seized/confiscated from him inadmissible. What is of utmost importance is the preservation of the integrity and the evidentiary value of the seized items as the same would be utilized in the determination of the guilt or innocence of the accused. In the case at bar, appellant never questioned the custody and disposition of the drug that was taken from him. In fact, he stipulated that the drug subject matter of this case was forwarded to PNP Regional Crime Laboratory Office 3, Malolos, Bulacan for laboratory examination which examination gave positive result for methamphetamine hydrochloride, a dangerous drug. We thus find the integrity and the evidentiary value of the drug seized from appellant not to have been compromised.

We would like to add that non-compliance with Section 21 of said law, particularly the making of the inventory and the photographing of the

drugs confiscated and/or seized, will not render the drugs inadmissible in evidence. Under Section 3 of Rule 128 of the Rules of Court, evidence is admissible when it is relevant to the issue and is not excluded by the law or these rules. For evidence to be inadmissible, there should be a law or rule which forbids its reception. If there is no such law or rule, the evidence must be admitted subject only to the evidentiary weight that will accorded it by the courts. One example is that provided in Section 31 of Rule 132 of the Rules of Court wherein a party producing a document as genuine which has been altered and appears to be altered after its execution, in a part material to the question in dispute, must account for the alteration. His failure to do so shall make the document inadmissible in evidence. This is clearly provided for in the rules.

We do not find any provision or statement in said law or in any rule that will bring about the non-admissibility of the confiscated and/or seized drugs due to non-compliance with Section 21 of Republic Act No. 9165. The issue therefore, if there is non-compliance with said section, is not of admissibility, but of weight – evidentiary merit or probative value – to be given the evidence. The weight to be given by the courts on said evidence depends on the circumstances obtaining in each case.

The elements necessary for the prosecution of illegal sale of drugs are (1) the identity of the buyer and the seller, the object, and consideration; and (2) the delivery of the thing sold and the payment therefor.24 What is material to the prosecution for illegal sale of dangerous drugs is the proof that the transaction or sale actually took place, coupled with the presentation in court of evidence of corpus delicti.25

All these elements have been shown in the instant case. The prosecution clearly showed that the sale of the drugs actually happened and that the shabu subject of the sale was brought and identified in court. The poseur buyer positively identified appellant as the seller of the shabu. Per Chemistry Report No. D-728-2002 of Forensic Chemical Officer Nellson Cruz Sta. Maria, the substance, weighing 0.290 gram, which was bought by PO1 Tolentino from appellant in consideration of P300.00, was examined and found to be methamphetamine hydrochloride (shabu).

In the case before us, we find the testimony of the poseur-buyer, together with the dangerous drug taken from appellant, more than sufficient to prove the crime charged. Considering that this Court has access only to the cold and impersonal records of the proceedings, it generally relies upon the assessment of the trial court, which had the distinct advantage of observing the conduct and demeanor of the witnesses during trial. It is a fundamental rule that findings of the trial courts which are factual in nature and which involve credibility are accorded respect when no glaring errors, gross misapprehension of facts and speculative, arbitrary and unsupported conclusions can be gathered from such findings. The reason for this is that the trial court is in a better position to decide the credibility of witnesses having heard their testimonies and observed their deportment and manner of testifying during the trial.26

The rule finds an even more stringent application where said findings are sustained by the Court of Appeals.27 Finding no compelling reason to depart from the findings of both the trial court and the Court of Appeals, we affirm their findings.

Appellant denies selling shabu to the poseur-buyer insisting that he was framed, the evidence against him being "planted," and that the police officers were exacting P15,000.00 from him.

In the case at bar, the evidence clearly shows that appellant was the subject of a buy-bust operation. Having been caught in flagrante delicto, his identity as seller of the shabu can no longer be doubted. Against the positive testimonies of the prosecution witnesses, appellant’s plain denial of the offenses charged, unsubstantiated by any credible and convincing evidence, must simply fail.28 Frame-up, like alibi, is generally viewed with caution by this Court, because it is easy to contrive and difficult to disprove. Moreover, it is a common and standard line of defense in prosecutions of violations of the Dangerous Drugs Act.29 For this claim to prosper, the defense must adduce clear and convincing evidence to overcome the presumption that government officials have performed their duties in a regular and proper manner.30 This, appellant failed to do. The presumption remained unrebutted because the defense failed to present clear and convincing evidence that the police officers did not properly perform their duty or that they were inspired by an improper motive.

The presentation of his common-law wife, Amelia Mendoza, and his nephew, Alejandro Lim, to support his claims fails to sway. We find both witnesses not to be credible. Their testimonies are suspect and cannot be given credence without clear and convincing evidence. Their claims, as well as that of appellant, that they were maltreated and suffered injuries remain unsubstantiated. As found by the trial court:

The accused, on the other hand, in an effort to exculpate himself from liability raised the defense of frame-up. He alleged that at the time of the alleged buy bust he was merely sleeping at the house of his sister. That he was awakened by the yells and screams of his relatives as they were being mauled by the police officers. However, this Court is not convinced. Accused failed to substantiate these claims of maltreatment even in the face of his wife’s and nephew’s testimony. No evidence was presented to prove the same other than their self-serving claims.31

Moreover, we agree with the observation of the Office of the Solicitor General that the witnesses for the defense cannot even agree on what time the arresting policemen allegedly arrived in their house. It explained:

To elaborate, appellant testified that it was 3 o’clock in the afternoon of December 10, 2002 when he was roused from his sleep by the policemen who barged into the house of his sister (TSN, July 7, 2003, p. 2). His common-law wife, however, testified that it was 10-11 o’clock in the morning when the policemen came to the house (TSN, Oct. 13, 2003, p. 6). On the other hand, Alejandro Lim testified that he went to sleep at 11 o’clock in the morning and it was 10 o’clock in the morning when the policemen arrived (TSN, Feb.2, 2004, p. 6). He thus tried to depict an absurd situation that the policemen arrived first before he went to sleep with appellant.32

Having established beyond reasonable doubt all the elements constituting the illegal sale of drugs, we are constrained to uphold appellant’s conviction.

The sale of shabu is penalized under Section 5, Article II of Republic Act No. 9165. Said section reads:

SEC. 5. Sale, Trading, Administration, Dispensation, Delivery, Distribution and Transportation of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals. – The penalty of life imprisonment to death and a fine ranging from Five hundred thousand pesos (P500,000.00) to Ten million pesos (P10,000,000.00) shall be imposed upon any person, who, unless authorized by law, shall sell, trade, administer, dispense, deliver, give away to another, distribute, dispatch in transit or transport any dangerous drug, including any and all species of opium poppy regardless of the quantity and purity involved, or shall act as a broker in any of such transactions.

Under said law, the sale of any dangerous drug, regardless of its quantity and purity, is punishable by life imprisonment to death and a fine of P500,000.00 to P10,000,000.00. For selling 0.290 gram of shabu to PO1 Tolentino, and there being no modifying circumstance alleged in the information, the trial court, as sustained by the Court of Appeals, correctly imposed the penalty of life imprisonment in accordance with Article 63(2)33 of the Revised Penal Code.

As regards the fine to be imposed on appellant, the trial court pegged the fine at P5,000,000.00 which the Court of Appeals reduced to P500,000.00. Both amounts are within the range provided for by law but the amount imposed by the Court of Appeals, considering the quantity of the drugs involved, is more appropriate.

WHEREFORE, premises considered, the instant appeal is DENIED. The Decision of the Court of Appeals in CA-G.R. CR-H.C. No. 02070 dated 28 May 2007, sustaining the conviction of appellant Norberto Del Monte, a.k.a. Obet, for violation of Section 5, Article II of Republic Act No. 9165, is hereby AFFIRMED. No costs.

SO ORDERED.

G.R. No. 139301             September 29, 2004

PEOPLE OF THE PHILIPPINES, appellee, vs.HUANG ZHEN HUA and JOGY LEE, appellants.

D E C I S I O N

CALLEJO, SR., J.:

This is an appeal from the Decision1 of the Regional Trial Court (RTC) of Parañaque City, Metro Manila, Branch 259, convicting the appellants of violation of Section 16, Article III of Republic Act No. 6425, as amended.

The Case for the Prosecution

Police operatives of the Public Assistance and Reaction Against Crime (PARAC) under the Department of Interior and Local Government received word from their confidential informant that Peter Chan and Henry Lao,2 and appellants Jogy Lee and Huang Zhen Hua were engaged in illegal drug trafficking. The policemen also learned that appellant Lee was handling the payments and accounting of the proceeds of the illegal drug trafficking activities of Lao and Chan.3 PO3 Belliardo Anciro, Jr. and other police operatives conducted surveillance operations and were able to verify that Lao and appellant Lee were living together as husband and wife. They once spotted Chan, Lao, the appellants and two others, in a seafood restaurant in Bocobo Street, Ermita, Manila, late in the evening. On another occasion, the policemen saw Chan, Lao, and the appellants, at the Celicious Restaurant along R. Sanchez Street, Ermita, Manila, at about 8:30 p.m. They were spotted the third time at the Midtown Hotel at about 7:00 p.m. to 8:00 p.m.4 The police operatives also verified that Chan and Lao resided at Room Nos. 1245 and 1247, Cityland Condominium, De la Rosa Street, Makati City, and in a two-storey condominium unit at No. 19 Atlantic Drive, Pacific Grand Villa, Sto. Niño, Parañaque, Metro Manila.5

On October 25, 1996, SPO2 Cesar N. Teneros of the PARAC secured Search Warrant No. 96-801 for violation of Presidential Decree (P.D.) No. 1866 (illegal possession of firearms and explosives) and Search Warrant No. 96-802, for violation of Sections 12, 14 and 16 of Rep. Act No. 6425, as amended, from Judge William M. Bayhon, Executive Judge of the RTC of Manila.6 Senior Police Inspector Lucio Margallo supervised the enforcement of Search Warrant No. 96-801 at the Cityland Condominium at about 11:00 p.m. on October 29, 1996. With him were PO3 Anciro, Jr., PO3 Wilhelm Castillo, SPO3 Roger Ferias and seven other policemen of the PARAC, who were all in uniform, as well as a Cantonese interpreter by the name of Chuang. While no persons were found inside, the policemen found two kilos of methamphetamine hydrochloride, popularly known as shabu, paraphernalia for its production, and machines and tools apparently used for the production of fake credit cards.7

Thereafter, the police operatives received information that Lao and Chan would be delivering shabu at the Furama Laser Karaoke Restaurant at the corner of Dasmariñas and Mancha Streets, Manila. The policemen rushed to the area on board their vehicles. It was 2:00 a.m. of October 26, 1996. The policemen saw Chan and Lao on board the latter’s Honda Civic car. As the two men alighted, one of the men approached them and introduced himself, but Chan and Lao fired shots. Thus, a shoot-out ensued between the members of the raiding team and the two suspects. Chan and Lao were shot to death during the encounter. The policemen found two plastic bags, each containing one kilo of shabu, in Lao’s car.

The policemen then proceeded to No. 19 Atlantic Drive, Pacific Grand Villa, to enforce Search Warrant No. 96-802. When the policemen arrived at the place, they coordinated with Antonio Pangan, the officer in charge of security in the building.8 The men found that the Condominium Unit No. 19 was leased to Lao under the name Henry Kao Tsung. The policemen, Pangan and two security guards of the Pacific Grand Villa proceeded to the condominium unit. Anciro, Jr. knocked repeatedly on the front door, but no one responded. Pangan, likewise, knocked on the door.9 Appellant Lee peeped through the window beside the front door.10

The men introduced themselves as policemen,11 but the appellant could not understand them as she could not speak English.12 The policemen allowed Pangan to communicate with appellant Lee by sign language and pointed their uniforms to her to show that they were policemen. The appellant then opened the door and allowed the policemen, Pangan and the security guards into the condominium unit.13 The policemen brought appellant Lee to the second floor where there were three bedrooms – a

master’s bedroom and two other rooms. When asked where she and Lao slept, appellant Lee pointed to the master’s bedroom.14 Anciro, Jr., Margallo and PO3 Wilhelm Castillo then searched the master’s bedroom, while Ferias and Pangan went to the other bedroom where appellant Zhen Hua was sleeping.15 Ferias awakened appellant Zhen Hua and identified himself as a policeman. Appellant Zhen Hua was surprised.16

Anciro, Jr. saw a small cabinet inside the master’s bedroom about six feet high. He stood on a chair, opened the cabinet and found two transparent plastic bags each containing one kilo of shabu,17 a feeding bottle, a plastic canister18 and assorted paraphernalia.19 Inside the drawer of the bed’s headboard, Anciro, Jr. also found assorted documents, pictures, bank passbooks issued by the Allied Banking Corporation, credit cards, passports and identification cards of Lao and Lee.20 Anciro, Jr. asked appellant Lee who was the owner of the crystalline substance, but the latter did not respond because she did not know English.21 Anciro, Jr. asked Margallo for instructions on what to do with the things he had found, and the latter told him to keep the same for future reference,22 and as evidence against any other suspect for illegal drug transactions.23 Anciro, Jr., Pangan and Margallo later showed the seized articles to the other members of the team.24

Anciro, Jr. told appellant Lee to bring some of her clothes because they were bringing her to the PARAC headquarters. Appellant Lee did as she was told and took some clothes from the cabinet in the master’s bedroom where Anciro, Jr. had earlier found the shabu.25

The policemen brought the appellants to the PARAC headquarters. The following articles were found and confiscated by the policemen in the condominium unit:

a. TWO (2) Big Transparent Plastic Bags containing about one (1) Kilo each of white crystalline granules later tested to be Methamphetamine Hydrochloride or Shabu, a regulated drug;

b. ONE (1) Transparent Plastic Baby Feeding Bottle containing an undetermined quantity of suspected Shabu;

c. ONE (1) Small Plastic Cannister also containing undetermined amount of suspected Shabu ….

d. Assorted Pieces of Shabu Paraphernalia consisting of Improvised Tooters used for sniffing shabu, Improvised Burners used for burning Shabu, aluminum foils, etc.;26

Anciro, Jr. placed the articles he found in the cabinet inside a box.27 The appellants were then brought to the PARAC headquarters where they were detained. Pangan signed a Certification28 that the search conducted by the policemen had been orderly and peaceful. Anciro, Jr. affixed his initials on the transparent plastic bags and their contents, the transparent baby feeding bottle and the plastic cannister and their contents. On October 26, 1996, he and Ferias29 brought the seized items to the PNP Crime Laboratory for laboratory examination30 along with the letter-request31 thereon.

On the same day, Forensic Chemist Officer Isidro L. Cariño signed Chemistry Report No. D-1243-96 which contained his findings on the laboratory examination of the items which were marked as Exhibits "A" to "A-4," viz:

SPECIMEN SUBMITTED:

Exh. "A" – One (1) "must de Cartier Paris" carton containing the following:

Exh. "A-1" – One (1) heat-sealed transparent plastic bag containing 1,000.40 grams of white crystalline substance.

Exh. "A-2" – One (1) heat-sealed transparent plastic bag containing 998.10 grams of white crystalline substance.

Exh. "A-3" – One (1) transparent plastic "Babyflo Nurser" feeding bottle with pink cover containing 18.52 grams of white crystalline substance.

Exh. "A-4" – One (1) transparent plastic container with white cover containing 3.28 grams of white crystalline substance.

NOTE: The above-stated specimen were allegedly taken from the residence of the above-named subjects. xxx

PURPOSE OF LABORATORY EXAMINATION:

To determine the presence of prohibited and/or regulated drug.

FINDINGS:

Qualitative examination conducted on the above-stated specimens, Exhs. "A-1" through "A-4" gave POSITIVE result to the test for Methamphetamine hydrochloride, a regulated drug. xxx32

The police officers executed an affidavit of arrest.33 Pangan and the two security guards signed a certification stating that nothing was destroyed in the condominium unit and that the search was orderly and peaceful.34

The policemen also accomplished an inventory of the articles seized during the search.35

The appellants were charged of violation of Section 16, Rep. Act No. 6425, as amended, in an Information filed in the RTC of Parañaque, Metro Manila, the accusatory portion of which reads:

That on or about the 26th day of October 1996, in the Municipality of Parañaque, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together

and both of them mutually helping and aiding one another, not being lawfully authorized to possess or otherwise use any regulated drug and without the corresponding license or prescription, did then and there willfully, unlawfully and feloniously have, in their possession and under their control and custody, the following to wit:

A. One (1) heat-sealed transparent plastic bag containing 1,000.40 grams of white crystalline substance;

B. One (1) heat-sealed transparent plastic bag containing 998.1 grams of white crystalline substance;

C. One (1) transparent plastic "Babyflo Nurser" feeding bottle with pink cover containing 18.52 grams of white crystalline substance;

D. One (1) transparent plastic container with white cover containing 3.28 grams of white crystalline substance

which when examined were found to be positive for Methamphetamine Hydrochloride (Shabu), a regulated drug.

CONTRARY TO LAW.36

Both appellants, assisted by counsel, were duly arraigned on November 29, 1992, and pleaded not guilty to the charge.

The Case for the Appellants

Appellant Jogy Lee denied the charge. She testified that she was a resident of Kwantong, China, a college graduate who could not speak nor understand English. She was once employed in a real estate firm. One of her co-employees was Huang Zhen Hua.37 She met Henry Lao in China sometime in 1995,38 and he brought her to Belgium that same year. Lao also helped her procure a Belguim passport, for he explained that if she only had a Chinese passport, it would be difficult to secure visas from countries she wanted to go to and visit; whereas many countries did not require a Belgian passport holder to secure visas before allowing entry therein. In the process, he and Lao fell in love and became lovers.

Upon Lao’s invitation, appellant Lee visited the Philippines as a tourist for the first time in April 1996. Lao met her at the airport, and she was, thereafter, brought to a hotel in Manila where she stayed for less than a month.39 She returned to the Philippines a second time and was again billeted in a hotel in Manila. All her expenses were shouldered by Lao, who was engaged in the garlic business.40 As far as she knew, Lao was not engaged in any other business.41 In June 1996, she invited her friend, appellant Huang Zhen Hua to visit the Philippines to enjoy the tourist spots.42 They were then in China.

In the evening of October 1, 1996, appellant Lee returned to the Philippines on a tourist visa. She was fetched by Lao, and she was brought to his condominium unit at No. 19, Atlantic Drive, Pacific Grand Villa, Sto. Niño, Parañaque. She had been residing there since then. She and Lao used to go to the shopping malls43 and she even saw Chan once when he cleaned his Nissan car in Lao’s garage.

On October 22, 1996, appellant Zhen Hua arrived from China at the NAIA and was met by Lao at the airport. He tried to check in at the Diamond Hotel but Lee told him that he could stay in the condominium unit. Zhen Hua was brought to the Villa where he had been staying since then. The appellants had made plans to visit Cebu.

At about 6:00 a.m. on October 26, 1996, appellant Lee was sleeping in the master’s bedroom at the condominium unit. She had closed all the windows because she had turned the air conditioning unit on. Zhen Hua was sleeping in the other bedroom in the second floor beside the master’s bedroom. Lao’s Honda Civic car and Chan’s Nissan car were in the garage beside the condominium unit. Momentarily, Lee heard someone knocking on the bedroom door. When she opened it, three (3) policemen barged into the bedroom and at the room where appellant Zhen Hua was sleeping. Anciro, Jr. was not among the men. Lee did not hear the policemen knock at the main door before they entered.44 The policemen were accompanied by Chuang, a Cantonese interpreter, who told her that the policemen were going to search the house.45 Appellant Lee saw a policeman holding two papers, but no search warrant was shown to her.46 She was so frightened.

The policemen placed two plastic bags on the bed before they searched the master’s bedroom. Appellant Lee went to the room of appellant Zhen Hua and when she returned to the master’s bedroom, she saw shabu on the bed.47 The policemen took her ring, watch and the P600,000 owned by Lao which had earlier been placed in the cabinet, her papers and documents, and those of Lao’s as well. She had never seen any shabu in the room before the incident. Thereafter, she and appellant Zhen Hua were brought to the PARAC headquarters where they were detained. Chuang, the cantonese interpreter, informed her that shabu had been found in the condominium unit and that the policemen were demanding P5,000,000 for her release. She was also told that if she did not pay the amount, she would be charged with drug trafficking, and that the leader of the group who arrested her would be promoted. However, she told Chuang that she had no money. Since she could not pay the amount, she was boarded on a PARAC owner-type jeep and returned to the condominium unit where the policemen took all the household appliances, such as the television, compact discs, washing machine, including laundry detergent. Only the sofa and the bed were not taken. About ten (10) days later, the appellants secured the services of counsel.

Antonio Pangan testified that he and the policemen knocked on the door to the condominium unit but that no one responded. He shouted, "Sir Henry," referring to Lao, but there was no response from inside the condominium. After about three (3) to five (5) minutes, a policeman kicked the door open and they entered the house. They went to the second floor and saw the appellants sleeping.

Pangan testified that he did not see any shabu that was seized by the policemen. He learned that shabu had been found and taken from the condominium unit only when he saw someone holding up the substance on television during the daily news program TV Patrol.48

Appellant Zhen Hua also denied the charge. He corroborated the testimony of appellant Lee that upon her invitation, he arrived in the Philippines on a tourist visa on October 22, 1996. He claimed that he did not see Anciro, Jr. in the condominium unit when policemen arrived and searched the house. He testified that aside from the PARAC policemen, he was also investigated by policemen from Taiwan.

After trial, the court rendered judgment on January 10, 1999, convicting both appellants of the crime charged. The decretal portion of the decision reads:

WHEREFORE, PREMISES CONSIDERED, finding accused Jogy Lee and Huang Zhen Hua GUILTY beyond reasonable doubt for violation of Sec. 16, Art. III, RA 6425, as amended by RA 7659, and considering the absence of any aggravating circumstances, this Court hereby sentences both accused to suffer the penalty of Reclusion Perpetua and to pay a fine of P500,000.00 each. The properties seized in accordance with the search warrants issued relative to this case are hereby ordered confiscated in favor of the government and the Clerk of Court of this Court is directed to turn over to the Dangerous Drugs Board, the drugs and paraphernalia subject hereof for proper disposition.

The Clerk of Court is also directed to prepare the Mittimus for the immediate transfer of both accused Jogy Lee and Huang Zhen Hua from the Parañaque City Jail to the Bureau of Correccions (sic) in Muntinlupa City.

SO ORDERED.49

The Present Appeal

On appeal to this Court, appellant Zhen Hua, asserts that:

First. The evidence for the prosecution, as a whole, is so far as self-contradictory, inherently improbable and palpably false to be accepted as a faithful reflection of the true facts of the case;

Second. Appellant Huang Zhen Hua’s conviction was based merely on the trial court’s conclusion that he "is not an epitome of first class tourist and that he appeared nonchalant throughout the proceedings;"

Third. In convicting said appellant, the court below completely disregarded the glaring facts and admissions of the prosecution’s principal witnesses that no regulated drug was ever found in his possession;

Fourth. The trial court, likewise, ignored the fact that the appellant’s arrest was illegal and in violation of his constitutional and basic rights against arrest without probable cause as determined by a Judge and that his arraignment did not constitute a waiver of such right;

Fifth. The trial court failed to consider the fact that the presumption of regularity of performance of the police officers who took part in the search had been overcome by prosecution's own evidence, thereby wrongly giving such presumption substance over and above the constitutional presumption of innocence of the appellant.50

For her part, appellant Lee contends that:

1.01 THE ALLEGED TWO KILOS OF SHABU FOUND INSIDE ONE OF THE ROOMS IN THE TOWNHOUSE RENTED BY HENRY LAU WERE MERELY PLANTED BY PARAC OPERATIVES;

1.02 THE IMPLEMENTATION OF THE SEARCH WARRANT WAS HIGHLY IRREGULAR, DUBIOUS AND UNREASONABLE AS THE SEARCH WARRANT DID NOT CONTAIN ANY PARTICULAR DESCRIPTION OF THE ROOM TO BE SEARCHED, NOR WAS THERE ANY INTERPRETER TO ASSIST AND GUIDE JOGY LEE, WHO NEITHER KNEW NOR UNDERSTAND THE ENGLISH LANGUAGE, DURING THE SEARCH AND EVEN DURING THE TRIAL;

2. THE LOWER COURT ERRED IN NOT ACQUITTING ACCUSED JOGY LEE UPON THE GROUND THAT HER GUILT WAS NOT ESTABLISHED BY PROOF BEYOND REASONABLE DOUBT.51

For its part, the Office of the Solicitor General (OSG) posits that appellant Zhen Hua should be acquitted on the ground of reasonable doubt, but that the conviction of appellant Lee should be affirmed.

The Court’s Ruling

We shall delve into and resolve the assigned errors of the appellants Huang Zhen Hua and Jogy Lee sequentially.

On Appellant Zhen Hua

The OSG contends that the prosecution failed to muster the requisite quantum of evidence to prove appellant Zhen Hua’s guilt beyond reasonable doubt for the crime charged, thus:

Huang Zhen Hua denies having anything to do with the bags of "shabu" found in the townhouse unit of Henry Lau. He claims that he arrived in the Philippines as a tourist on October 22, 1996, upon the invitation of Jogy Lee. Allegedly, at the time of his arrest, he had been in the Philippines for barely four days. He claims that he was just temporarily billeted as a guest at the townhouse where Jogy Lee was staying. And that he had no control whatsoever over said townhouse. He puts emphasis on the fact that the search of his room turned out to be "negative" and that the raiding team failed to seize or confiscate any prohibited or regulated drug in his person or possession. He, therefore, prays for his acquittal.

The People submits that Huang Zhen Hua is entitled to acquittal. The prosecution’s evidence fails to meet the quantum of evidence required to overcome the constitutional presumption of innocence; thus, regardless of the supposed weakness of his defense, and his innocence may be doubted, he is nonetheless entitled to an acquittal (Natividad v. Court of Appeals, 98 SCRA 335 (1980), cited in People v. Fronda, G.R. No. 130602, March 15, 2000). The constitutional presumption of innocence guaranteed to every individual is of primary importance, and the conviction of the accused must rest not on the weakness of the defense but on the strength of the evidence for the prosecution.

In the instant case, as pointed out by appellant Huang Zhen Hua, the trial court erred when it did not give much weight to the admission made by the prosecution witnesses that no regulated drug was found in his person. No regulated drug was also found inside his room or in his other belongings such as suitcases, etc. Thus, he had no actual or constructive possession of the confiscated "shabu."

Moreover, it is not disputed that Huang Zhen Hua had only been in the country for barely four (4) days at the time when he was arrested. The prosecution was unable to show that in these four (4) days Huang Zhen Hua committed acts which showed that he was in cahoots with the drug syndicate Henry Lau and Peter Chan. It was not even shown that he was together with Henry Lau and Peter Chan on any occasion. As for Huang Zhen Hua, therefore, there is no direct evidence of any culpability. Nor is there any circumstantial evidence from which any culpability may be inferred.52

We agree with the OSG. In a case of recent vintage, this Court, in People vs. Tira,53 ruminated and expostulated on the juridical concept of "possession" under Section 16, Article III of Rep. Act No. 6425, as amended, and the evidence necessary to prove the said crime, thus:

The essential elements of the crime of possession of regulated drugs are the following: (a) the accused is found in possession of a regulated drug; (b) the person is not authorized by law or by duly constituted authorities; and, (c) the accused has knowledge that the said drug is a regulated drug. This crime is mala prohibita, and, as such, criminal intent is not an essential element. However, the prosecution must prove that the accused had the intent to possess (animus posidende) the drugs. Possession, under the law, includes not only actual possession, but also constructive possession. Actual possession exists when the drug is in the immediate physical possession or control of the accused. On the other hand, constructive possession exits when the drug is under the dominion and control of the accused or when he has the right to exercise dominion and control over the place where it is found. Exclusive possession or control is not necessary. The accused cannot avoid conviction if his right to exercise control and dominion over the place where the contraband is located, is shared with another.

Thus, conviction need not be predicated upon exclusive possession, and a showing of non-exclusive possession would not exonerate the accused. Such fact of possession may be proved by direct or circumstantial evidence and any reasonable inference drawn therefrom. However, the prosecution must prove that the accused had knowledge of the existence and presence of the drug in the place under his control and dominion and the character of the

drug. Since knowledge by the accused of the existence and character of the drugs in the place where he exercises dominion and control is an internal act, the same may be presumed from the fact that the dangerous drug is in the house or place over which the accused has control or dominion, or within such premises in the absence of any satisfactory explanation.54

In this case, the prosecution failed to prove that the appellant, at any time, had actual or constructive possession of the regulated drug found in the master’s bedroom where appellant Lee was sleeping; or that the appellant had accessed the said room at any given time; or that he had knowledge of the existence of shabu in appellant Lee’s bedroom. Appellant Zhen Hua had arrived in the Philippines upon the invitation of appellant Lee only on October 22, 1996 or barely four (4) days before the arrival of the policemen and the search conducted in the condominium unit leased by Henry Lao. He was a mere visitor of appellant Lee. There is no evidence that appellant Zhen Hua was aware of the alleged illegal drug activities and/or transactions of Henry Lao, Peter Chan and appellant Lee. The policemen did not find any regulated drug in the room where appellant Zhen Hua was sleeping when they made their search.

The evidence of the prosecution against appellant Zhen Hua falls short of the requisite quantum of evidence to prove conspiracy between him, appellant Lee and Chan or Lao.

There is conspiracy when two or more persons agree to commit a crime and decide to commit it.55 Conspiracy cannot be presumed.56

Conspiracy must be proved beyond reasonable doubt like the crime subject of the conspiracy.57 Conspiracy may be proved by direct evidence or by proof of the overt acts of the accused, before, during and after the commission of the crime charged indicative of a common design.58

The bare fact that on two or three occasions after the arrival of appellant Zhen Hua from China, and before the search conducted in Lao’s condominium unit, appellant Zhen Hua had been seen with Lao, Chan and appellant Lee. Having dinner or lunch at a restaurant does not constitute sufficient proof that he had conspired with them or with any of them to possess the subject-regulated drug. Mere association with the principals by direct participation or mere knowledge of conspiracy, without more, does not suffice.59 Anciro, Jr. even admitted that during his surveillance, he could have mistaken appellant Zhen Hua for another group of Chinese persons who were also being watched.60 Appellant Zhen Hua should, thus, be acquitted.

On Appellant Lee

Appellant Lee avers that certain irregularities were attendant in the issuance and implementation of Search Warrant No. 96-802, as follows: (a) the policemen who implemented the search warrant failed in their duty to show to her the said warrant, inform her of their authority and explain their presence in the condominium unit; (b) the policemen gained entry into the condominium unit by force while she was sleeping; and (c) articles and personal effects owned by her and Lao were taken and confiscated by the policemen, although not specified in the search warrant.

The appellant concludes that the articles procured by the policemen on the occasion of the search of the condominium unit are inadmissible in evidence.

Appellant Lee, likewise, contends that she was a victim of a frame-up because the policemen planted the regulated drug on her bed even before they searched the bedroom. She went to the room of appellant Zhen Hua to find out if he was already awake, and when she returned to the bedroom, she noticed shabu on her bed. She avers that the sole testimony of Anciro, Jr., that he found the regulated drug in the master’s bedroom, is incredible because he was not with the policemen who barged into the bedroom. She notes that even Pangan, the caretaker of the Villa, testified that he did not see any illegal drug confiscated by the policemen.

According to appellant Lee, the trial court erred in convicting her of the crime charged, considering that Lao and Chan were the suspects identified in the search warrants, not her. She avers that she had no knowledge of the alleged illegal drug transactions of her lover Lao. She contends that there was no probable cause for her arrest as her mere presence in the condominium unit does not render her liable for the shabu found in the master’s bedroom of the condominium unit leased by Lao. She further avers that the testimonies of the witnesses for the prosecution are inconsistent; hence, barren of probative weight. The appellant also asserts that she was deprived of her right to due process when the trial court conducted a trial without a Chinese interpreter to assist her.

The OSG, for its part, avers that the police officers are presumed to have performed their duties. Based on the testimony of Anciro, Jr., appellant Lee was shown the search warrant, through the window, and the policemen identified themselves through their uniforms. The security guards of the condominium also explained the search warrant to the appellant. Although she was, at first, reluctant to open the door, appellant Lee later voluntarily opened the door and allowed them entry into the unit. There was no evidence of forcible entry into the unit and no breakage of any door. The OSG further avers that the appellant had been in the country for quite sometime already and could not have gotten around without understanding English. In fact, the OSG argues that when Anciro, Jr. told the appellant to get some of her clothes since she would be brought to the police headquarters in Quezon City, she did as she was told and took her clothes from the cabinet where the shabu were found by the policemen.

The OSG further points out that Pangan, the chief of security of the subdivision who was a witness for appellant Lee, even testified that the search was orderly. The OSG contends that there was probable cause for the appellant’s arrest because an informant had tipped off the arresting officers that the appellant was a member of a syndicate dealing with illegal drugs, and that she handled the accounts of Lao and Chan. The appellant was not a victim of frame-up because she was present when the policemen searched the master’s bedroom where she was sleeping and where she kept her clothes, and witnessed the discovery of the regulated drugs and paraphernalia.

We agree with the contention of the appellant that the constitutional proscription against unreasonable search and seizure applies to Filipino citizens, as well as to aliens temporarily residing in the country. The rule against unreasonable search and seizure forbids every search that is unreasonable; it protects all those suspected or known to be offenders, as well as the innocent. The guarantee is as important and imperative as the guarantee of the other fundamental rights of the citizens.61 All

owes the duty for its effective enforcement lest there shall be an impairment of the right for the purpose for which it was adopted.62

Section 7, Rule 126 of the Revised Rules of Criminal Procedure provides:

SEC. 7. Right to break door or window to effect search. – The officer, if refused admittance to the place of directed search after giving notice of his purpose and authority, may break open any outer or inner door or window of a house or any part of a house or anything therein to execute the warrant or liberate himself or any person lawfully aiding him when unlawfully detained therein.

The police officers were obliged to give the appellant notice, show to her their authority, and demand that they be allowed entry. They may only break open any outer or inner door or window of a house to execute the search warrant if, after such notice and demand, such officers are refused entry to the place of directed search. This is known as the "knock and announce" principle which is embodied in Anglo-American Law. The method of entry of an officer into a dwelling and the presence or absence of such notice are as important considerations in assessing whether subsequent entry to search and/or arrest is constitutionally reasonable.63 In Gouled v. The United States,64 it was held that a lawful entry is the indispensable predicate of a reasonable search. A search would violate the Constitution if the entry were illegal, whether accomplished by force, by illegal threat or mere show of force.

The principle may be traced to a statute in England way back in 1275 providing that "if a person takes the beasts of another and causes them to be driven into a castle or fortress, if the sheriff makes a solemn demand for the deliverance of the beasts, and if the person did not cause the beasts to be delivered incontinent, the king shall cause the said castle or fortress to be beaten down without recovery." Common law courts appended an important qualification:

But before he breaks it, he ought to signify the cause of his coming, and to make request to open doors …, for the law without a default in the owner abhors the destruction or breaking of any house (which is for the habitation and safety of man) by which great damage and inconvenience might ensue to the party, when no default is in him; for perhaps he did not know of the process, of which, if he had noticed, it is to be presumed that he would obey it…65

Blackstone simply stated the principle that the sheriff may justify breaking open doors if the possession be not quietly delivered.66 The principle was woven quickly into the fabric of early American law and in the Fourth Amendment in the United States Federal Constitution. It is an element of the reasonableness inquiry under the Fourth Amendment as held in Wilson v. Arkansas.67

Generally, officers implementing a search warrant must announce their presence, identify themselves to the accused and to the persons who rightfully have possession of the premises to be searched, and show to them the search warrant to be implemented by them and explain to them said warrant in a language or dialect known to and understood by them. The requirement is not a mere procedural formality but is of the essence of the substantial provision which safeguards individual liberty.68 No precise form of words is required. It is sufficient that the

accused has notice of the officers, their authority and the purpose of the search and the object to be seized. It must be emphasized that the notice requirement is designed not only for the protection of the liberty of the person to be searched or of his property but also the safety and well-being of the officers serving and implementing the search warrant. Unless the person to whom the warrant is addressed and whose property is to be searched is notified of the search warrant and apprised of the authority of the person serving the warrant, he may consider the unannounced intrusion into the premises as an unlawful aggression on his property which he will be justified in resisting, and in the process, may cause injury even to the life of the officer implementing the warrant for which he would not be criminally liable. Also, there is a very real possibility that the police serving and implementing the search warrant may be misinformed as to the name or address of the suspect, or to other material affirmations. Innocent citizens should not suffer the shock, fright, shame or embarrassment attendant upon an unannounced intrusion.69 Indeed, a lawful entry is the indispensable predicate of a reasonable search. A search would violate the constitutional guarantee against unreasonable search and seizure if the entry were illegal, whether accomplished by force, or by threat or show of force or obtained by stealth, or coercion.70

Unannounced intrusion into the premises is permissible when (a) a party whose premises or is entitled to the possession thereof refuses, upon demand, to open it; (b) when such person in the premises already knew of the identity of the officers and of their authority and persons; (c) when the officers are justified in the honest belief that there is an imminent peril to life or limb; and (d) when those in the premises, aware of the presence of someone outside (because, for example, there has been a knock at the door), are then engaged in activity which justifies the officers to believe that an escape or the destruction of evidence is being attempted. Suspects have no constitutional right to destroy evidence or dispose of evidence.71 However, the exceptions above are not exclusive or conclusive. At times, without the benefit of hindsight and ordinarily on the spur of the moment, the officer must decide whether or not to make an unannounced intrusion into the premises. Although a search and seizure of a dwelling might be constitutionally defective, if the police officers’ entry was without prior announcement, law enforcement interest may also establish the reasonableness of an unannounced entry.72 Indeed, there is no formula for the determination of reasonableness. Each case is to be decided on its own facts and circumstances.73 In determining the lawfulness of an unallowed entry and the existence of probable cause, the courts are concerned only with what the officers had reason to believe and the time of the entry. 74 In Richards v. Wisconsin,75 it was held that:

[1] In order to justify a "no-knock" entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence. This standard—as opposed to a probable-cause requirement—strikes the appropriate balance between the legitimate law enforcement concerns at issue in the execution of search warrants and the individual privacy interest affected by no-knock entries.76

As articulated in Benefield v. State of Florida,77 what constitutes breaking includes the lifting of a latch, turning a door knob, unlocking a chain or hasp, removing a prop to or pushing open a closed door of entrance to the house, even a closed screen door.78 However, entry obtained through the use of deception, accomplished without force is not a "breaking" requiring officers to first announce their authority and

purpose because the reasons behind the rule are satisfied – there was no real likelihood of violence, no unwarranted intrusion or privacy and no damage to the residence of the accused.79

As to how long an officer implementing a search warrant must wait before breaking open any door cannot be distilled into a constitutional stopwatch. Each case has to be decided on a case-to-case basis requiring an examination of all the circumstances.80 The proper trigger point in determining, under the "knock and announce" rule, whether the police waited long enough before entering the residence to execute a warrant, is when those inside should have been alerted that the police wanted entry to execute a warrant.81

In this case, we rule that the policemen complied with Section 7, Rule 126 of the Revised Rules of Criminal Procedure before entering the condominium unit. Appellant Lee admitted, when she testified, that the police officers were accompanied by Chuang, a Cantonese interpreter, who informed her that his companions were police officers and had a search warrant for the premises, and also explained to her that the officers were going to search the condominium unit.82 The appellant was sufficiently aware of the authority of the policemen, who wore PARAC uniforms, to conduct the search and their purpose. Moreover, Anciro, Jr. told the appellant, in English, to bring some clothes with her as she was to be brought to the police headquarters. Without such request being interpreted to the appellant, the latter did as she was directed and took some clothes from the cabinet atop the headboard.83

The evidence on record shows that the police officers knocked on the outer door before entering the condominium unit, and after a while, the appellant opened the door and allowed the policemen and Pangan to enter. Anciro, Jr. testified, thus:

Q Do you still recall Mr. Witness the identities of the security guards who helped you or assisted you in implementing said search warrants at Grand Villa Subdivision?

A The OIC of the Home Owners’ Association, Antonio Pangan, and the OIC of the Security Agency and two (2) other security guards.

Q Do you recall the names of those persons you mentioned Mr. Witness?

A I can hardly recall their names.

Q After having been assisted or coordinated with said security officers and the OIC of the Home Owners’ Association, what did you do next?

A We told them that if we could ask them if they have a duplicate key and also knock and introduce ourselves, knock on the said condominium.

Q Did they do that, the request?

A Yes, Sir.

Q Meaning to say, you arrived at #19 Atlantic Drive, Pacific Grand Villa?

A Yes, Sir.

Q While you were already at the door of that targeted house to implement said search warrants, what happened next, if any? What did you do after that?

A We knocked on the door and tried to find out if there was somebody there because the Home Owners’ Association doesn’t have any key for the door. We asked them to knock also because they are the ones who have access with the tenants.

Q And after knocking, what happened next?

A There were around 5 minutes, no one was trying to open the door. By that time, we thought they were still asleep.

Q And then after that what did you do, if any?

A We asked Mr. Pangan to knock and introduce himself and another security guard to try to knock on the kitchen which is on the back door.

Q And then after that?

A And then after that, it was a female person who showed up to (sic) the window of the kitchen and asked who we are in a sign language.

Q And this female person who showed up to (sic) the window … I withdraw. Were you able to have a good look on that female person who showed herself thru the window?

A Yes, Sir.

Q And who is this person Mr. Witness?

A She was identified as Jogy Lee, Sir.84

The appellant failed to prove that the policemen broke open the door to gain entry into the condominium unit. She could have asked the court for an ocular inspection to show the door which was allegedly broken into by the policemen, or at least adduce in evidence pictures showing the said breakage. The appellant failed to do so. The testimony of the appellant is even belied by Pangan, who was a witness for the appellant, who certified, along with three other security guards, that

nothing was destroyed and that the search was conducted in a peaceful and orderly manner.85

We are not impervious of the testimony of Pangan that the policemen kicked the outer door to gain entry into the condominium unit, which testimony is seemingly in derogation of his certification. However, Pangan admitted that the policemen did so only after knocking on the door for three (3) to five (5) minutes and after he had called Lao in a loud voice and received no response from the appellants:

Q Did you come to know the persons wherein your presence was being required according to your security guards?

A According to my security guards, they introduced themselves as police operatives.

Q Did you comply with the invitation of these police authorities?

A Yes, they called me and according to them, they will search Unit 19, that is what they told me.

Q Can you please tell us what time did the police operatives conduct the search?

A I cannot recall anymore because the incident happened in 1996. I don’t know what time was that.

Q When they conducted the search, were you there?

A I was there because that unit cannot be opened if the caretaker is not present.

Q Are you trying to say that you were the one who opened the door of that unit occupied by Henry Kau Chung?

A They kicked the door and when nobody opened the door, they pushed the door and the door was opened.

Q They forcibly opened the door when nobody opened it?

A Kaya naman po ginawa ‘yon dahil nandoon naman po ang caretaker, wala naman pong masamang mangyayari dahil nandoon naman po ang namamahala.

Q From the time you knocked at the door of this unit up to the time that the police operatives forcibly break open the door, how many minutes had elapsed?

A Matagal din po silang kumakatok sa pintuan. I said, "Mr. Henry, pakibuksan n’yo ang pinto, would you mind to open

the door, kasi merong mga police officers na gustong ma-search itong unit mo. Then, when nobody was answering, they forcibly opened the door.

Q Was there any other occupant other than Henry Kau Chung in that unit at that time?

A At the second floor, they saw this Jogy Lee and her male companion whom I do not know.

Q But during the time that you were trying to seek entry to the door, there was no one who responded, is that correct?

A Pardon, Sir?

Q At the time that you were trying to knock at the door, there was no one who responded to your knocking at the door?

A Nobody was answering, Sir.

Q And that compelled the police operatives to open the door forcibly?

A Yes, Sir.86

…

COURT:

From the first time you knocked at the door, how long a time lapsed before the police officer broke open the door?

A Matagal din po.

Q For how long?

A Maybe for about three to five minutes.

Q When nobody was answering, they forced open the door?

A Yes, Your Honor.

COURT:

Continue.87

The appellant failed to prove, with clear and convincing evidence, her contention that Anciro, Jr. placed the shabu on her bed before he continued his search in the bedroom, and that she was a victim of frame-up by the policemen. She relied on her testimony and those of Pangan and Ferias that they did not see Anciro, Jr. discover and take custody of the shabu in the cabinet.

The appellant’s defense of frame-up is nothing new. It is a common and standard line of defense in most prosecutions for violation of the Dangerous Drugs Law. While such defense cannot and should not always be considered as contrived, nonetheless, it is generally rejected for it can easily be concocted but is difficult to prove. Police officers are, after all, presumed to have acted regularly in the performance of their official functions, in the absence of clear and convincing proof to the contrary, or that they are motivated by ill-will.88

It is true, as testified by Pangan and Ferias that, they did not see Anciro, Jr. discover and take custody of the shabu subject of this case. However, as explained by Pangan, he remained in the ground floor of the condominium unit while Anciro, Jr., Castillo and Margallo searched the bedroom of appellant Lee and her lover Lao, and Ferias proceeded to the room occupied by appellant Zhen Hua where he conducted his search. Thus, Pangan testified:

Q When the master’s bedroom was searched where Jogy Lee was then, according to you, sleeping, did you accompany the PARAC members?

A No, Sir, because I was talking to a member of the PARAC downstairs.

Q What about the members of the security force?

A They were outside, Sir.

Q During the search made on the master’s bedroom?

A Yes, Sir.

Q How about when the search was made in the room occupied by Huang Zhen Hua, were you present then?

A No, Sir, I was still downstairs.

Q How about the other guards?

A They were also outside.89

For his part, Ferias declared:

Q In other words, you did not go inside the biggest room?

A No, Sir.

Q You proceeded to another room where co-accused Huang Zhen Hua was then sleeping?

A Yes, Sir.

Q What happened next?

A We woke up Huang Zhen Hua and we introduced ourselves to him as police officers.

Q What was the reaction of Huang Zhenhua?

A He was surprised.90

…

Q In other words, you did not go inside the biggest room?

A No, Sir.

Q You proceeded to another room where co-accused Huang Zhen Hua was then sleeping?

A Yes, Sir.

Q What happened next?

A We woke up Huang Zhen Hua and we introduced ourselves to him as police officers.

Q What was the reaction of Huang Zhen Hua?

A He was surprised.91

Pangan testified that before the police officers conducted their search in the second floor of the condominium unit, he did not see them bring in anything:

Q But you are very sure that before the police officers searched the unit, you did not see them bringing anything with them, they were all empty-handed?

A I did not see, Sir.92

No less than Pangan himself, a witness for the appellants, and three of the security guards of the subdivision, who accompanied the policemen

in implementing the search warrants, certified that, what was found inside the condominium unit and confiscated by the policemen were two plastic bags which contained white crystalline powder substances suspected to be shabu.93

The appellant admitted that she saw shabu in her bedroom while the policemen were there. She claimed that the policemen placed the plastic bag on the bed before they started the search and that she noticed the shabu only after he returned from the room of appellant Zhen Hua to see if he was already awake is hard to believe.

First. We find it incredible that the policemen placed the shabu on the appellant’s bed, in her full view, for which the latter could be prosecuted for planting evidence and, if convicted, sentenced to death under Section 19 of Rep. Act 7659:

SECTION 19. Section 24 of Republic Act No. 6425, as amended, known as the Dangerous Act of 1972, is hereby amended to read as follows:

Sec. 24. Penalties for Government Officials and Employees and Officers and Members of Police Agencies and the Armed Forces, ‘Planting’ of Evidence.— The maximum penalties provided for [in] Section 3, 4(1), 5(1), 6, 7, 8, 9, 11, 12 and 13 of Article II and Sections 14, 14-A, 15(1), 16 and 19 of Article III shall be imposed, if those found guilty of any of the said offenses are government officials, employees or officers, including members of police agencies and the armed forces.

Any such above government official, employee or officer who is found guilty of "planting" any dangerous drugs punished in Sections 3, 4, 7, 8, 9 and 13 of Article II and Sections 14, 14-A, 15 and 16 of Article III of this Act in the person or in the immediate vicinity of another as evidence to implicate the latter, shall suffer the same penalty as therein provided.

Second. The appellant failed to inform her counsel of the alleged planting of evidence by the policemen; if she had done so, for sure, the said counsel would have prepared her affidavit and filed the appropriate motion in court for the suppression of the things/articles seized by the policemen.

Third. The appellant failed to charge the policemen with planting of evidence before or after she was charged of violation of Rep. Act No. 6425, as amended.

Fourth. The appellant cannot even identify and describe the policeman or policemen who allegedly planted the evidence.

The fact is that, as gleaned from the affidavit of arrest signed by Anciro, Jr. and Ferias, the articles and substances found and confiscated from the condominium unit of Lao and appellant Lee at Atlantic Drive and at

the Cityland condominium unit of Lao and Chan were itemized as follows:

a. TWO (2) Big Transparent Plastic Bags containing about one (1) kilo each of white crystalline granules later tested to be Methamphetamine Hydrochloride or Shabu, a regulated drug;

b. ONE (1) Transparent Plastic Baby Feeding Bottle containing undetermined quantity of suspected Shabu;

c. ONE (1) Small Plastic Canister also containing undetermined amount of suspected Shabu …

d. Assorted Pieces of Shabu Paraphernalia consisting of Improvised Tooters used for sniffing shabu, Improvised Burners used for burning Shabu, aluminum foils, etc.;

…

a. TWO (2) Kettles/Pots containing more or less 1 ½ kilos of Raw Shabu or Methamphetamine Hydrochloride;

b. Two (2) Big Transparent Plastic Bags containing more or less Two (2) Kilos of Shabu;

c. Three (3) Plastic Basins, small, medium, large, used for containers of finished/cooked Shabu;

c. Several pieces of Plastic Strainers used for draining out liquids from finished Shabu;

e. One (1) Plastic Container with liquid chemical of undetermined element;

f. Several pieces of Spoons and ladles with traces of raw Shabu used in stirring mixtures

g. One (1) Electric Cooking Stove w/one coil burner;

h. One (1) Unit Card Making Machine;

i. One (1) Unit Card Stamping Machine;

j. Several pieces of Credit Cards and Telephone Cards;94

Anciro, Jr. placed his initials on the plastic bags containing white crystalline powder which were found and confiscated at Atlantic Drive and, in the company of Ferias, delivered the same to the PNP Crime Laboratory for examination, per the request of Police Superintendent Janice P. de Guzman, the chief of the PARAC.

We agree with the appellant that she was not one of the accused named in the search warrants. However, such fact did not proscribe the policemen from arresting her and charging her of violation of Rep. Act No. 6425, as amended. There was, in fine, probable cause for her warrantless arrest independent of that found by Judge William Bayhon when he issued the search warrants against Lao and Chan for search of the condominium units at Atlantic Drive and Cityland.

Probable cause exists for the warrantless detention and arrest of one at the premises being searched when the facts and circumstances within their knowledge and of which they had reliable and trustworthy information are sufficient to themselves warrant a reasonable belief of a cautious person that an offense has been or is being committed.95 It has been held that:

Probable cause for the arrest of petitioner Diane Ker, while not present at the time the officers entered the apartment to arrest her husband, was nevertheless present at the time of her arrest. Upon their entry and announcement of their identity, the officers were met not only by George Ker but also by Diane Ker, who was emerging from the kitchen. Officer Berman immediately walked to the doorway from which she emerged and, without entering, observed the brick-shaped package of marijuana in plain view. Even assuming that her presence in a small room with the contraband in a prominent position on the kitchen sink would not alone establish a reasonable ground for the officers’ belief that she was in joint possession with her husband, that fact was accompanied by the officers’ information that Ker had been using his apartment as a base of operations for his narcotics activities. Therefore, we cannot say that at the time of her arrest there were no sufficient grounds for a reasonable belief that Diane Ker, as well as her husband, were committing the offense of possession of marijuana in the presence of the officers.96

In Draper v. United States,97 it was held that informations from a reliable informant, corroborated by the police officer’s observations as to the accuracy of the description of the accused, and of his presence at a particular place, is sufficient to establish probable cause. In this case, the police officers received reliable information and verified, after surveillance, that appellant Lee and Lao were living together as husband and wife in the condominium unit and that appellant Lee handled the accounting of the payments and proceeds of the illegal drug trafficking activities of Lao. Indeed, the policemen found that the appellant occupied the bedroom and slept in the same bed used by Lao. The appellant took her clothes from the same cabinet where the subject shabu and paraphernalia were found by Anciro, Jr. The appellant had been living in the same condominium unit with Lao since October 1, 1996 until her arrest on October 25, 1996. Along with Lao, the appellant thus had joint control and possession of the bedroom, as well as of the articles, paraphernalia, and the shabu found therein. Such facts and circumstances are sufficient on which to base a reasonable belief that the appellant had joint possession of the regulated drugs found in the bedroom along with Lao, her live-in partner, in line with our ruling in People v. Tira.98 For the purpose of prosecution for violation of the Dangerous Drugs Law, possession can be constructive and need not be exclusive, but may be joint.99

Admittedly, Anciro, Jr. seized and took custody of certain articles belonging to the appellant and Lao which were not described in the search warrants. However, the seizure of articles not listed in a search warrant does not render the seizure of the articles described and listed

therein illegal; nor does it render inadmissible in evidence such articles which were described in the warrant and seized pursuant thereto. Moreover, it bears stressing that Anciro, Jr. saw the unlisted articles when he and the other policemen implemented the search warrants. Such articles were in plain view of Anciro, Jr. as he implemented the search warrants and was authorized to seize the said articles because of their close connection to the crime charged. As held in Coolidge, Jr. v. New Hampshire:100

An example of the applicability of the ‘plain view’ doctrine is the situation in which the police have a warrant to search a given area for specified objects, and in the course of the search come across some other article of incriminating character. …

Where the initial intrusion that brings the police within plain view of such an article is supported, not by a warrant, but by one of the recognized exceptions to the warrant requirement, the seizure is also legitimate. Thus, the police may inadvertently come across evidence while in ‘hot pursuit’ of a fleeing suspect. … And an object that comes into view during a search incident to arrest that is appropriately limited in scope under existing law may be seized without a warrant.… Finally, the ‘plain view’ doctrine has been applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object. …101

It cannot be denied that the cards, passbook, passport and other documents and papers seen by the policemen have an intimate nexus with the crime charged or, at the very least, incriminating. The passport of the appellant would show when and how often she had been in and out of the country. Her credit cards and bank book would indicate how much money she had amassed while in the country and how she acquired or earned the same. The pictures and those of the other persons shown therein are relevant to show her relationship to Lao and Chan.102

Contrary to the claim of the appellant, it is not true that the trial court failed to provide an interpreter when she testified. The records show that a Cantonese interpreter attended the trial and interpreted her testimony. The Rules of Court does not require the trial court to provide the appellant with an interpreter throughout the trial. An interpreter is required only if the witness on the stand testifies in a language other than in English or is a deaf- mute. The appellant may procure the services of an interpreter at her own expense.

Contrary to the claim of appellant Lee, the prosecution adduced proof beyond reasonable doubt of her guilt of the crime charged. She and Lao, her lover, had joint possession of the shabu which the policemen found and confiscated from her bedroom.

IN LIGHT OF ALL THE FOREGOING, the appeal of appellant Huang Zhen Hua is GRANTED. The Decision of the Regional Trial Court of Parañaque City, convicting him of the crime charged, is REVERSED AND SET ASIDE. The said appellant is ACQUITTED of said charge. The Director of the Bureau of Corrections is hereby directed to release the said appellant from detention unless he is detained for another cause or charge, and to submit to the Court, within five (5) days from notice hereof, a report of his compliance with the directive of the Court.

The appeal of appellant Jogy Lee is DENIED. The Decision dated January 10, 1999, of the Regional Trial Court of Parañaque City, convicting her of violation of Section 16, Rep. Act No. 6425 is AFFIRMED. No costs.

SO ORDERED.

G.R. No. 175928               August 31, 2007

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs.ALVIN PRINGAS y PANGANIBAN Accused-Appellant.

D E C I S I O N

CHICO-NAZARIO, J.:

On appeal before Us is the Decision1 of the Court of Appeals in CA-G.R. CR-HC No. 00303 dated 31 August 2006 which affirmed in toto the decision2 dated 16 August 2004 of the Regional Trial Court (RTC) of Pasig City, Branch 154, convicting accused-appellant Alvin Panganiban Pringas of Violation of Sections 5,3 114 and 125 of Republic Act No. 9165, otherwise known as Comprehensive Dangerous Drugs Act of 2002.

On 25 April 2003, appellant was charged before the RTC of Pasig City with Violation of Sections 5, 11 and 12 of Republic Act No. 9165 under the following informations:

Criminal Case No. 12360-D

On or about April 22, 2003, in Pasig City, and within the jurisdiction of this Honorable Court, the accused, not being lawfully authorized to sell, possess or otherwise use any dangerous drug, did then and there willfully, unlawfully and feloniously sell, deliver and give away to Police Officer Joselito Esmallaner, a police poseur buyer, one (1) small heat-sealed transparent plastic bag containing white crystalline substance weighing three (3) centigrams (0.03 grams), which was found positive to the test for methamphetamine hydrochloride (shabu), a dangerous drug, in violation of the said law.6

Criminal Case No. 12361-D

On or about April 22, 2003, in Pasig City, and within the jurisdiction of this Honorable Court, the accused, not being lawfully authorized to possess any dangerous drug, did then and there willfully, unlawfully and feloniously have in his possession and under his custody and control three (3) small heat-sealed transparent plastic bags containing white crystalline substance weighing, the following to wit:

(a) twenty-five (25) decigrams (0.25 grams);

(b) two (2) centigrams (0.02 grams); and

(c) two (2) centigrams (0.02 grams).

for a total of twenty-nine (29) decigrams (0.29 grams), which were found positive to the test for methamphetamine hydrochloride, a dangerous drug, in violation of the said law.7

Criminal Case No. 12362-D

On or about April 22, 2003, in Pasig City, and within the jurisdiction of this Honorable Court, the accused, not being lawfully authorized to possess drug paraphernalia, did then and there willfully, unlawfully and feloniously have in is possession, custody and control, the following to wit:

(a) one (1) small tape-sealed transparent plastic bag containing four (4) smaller unsealed transparent plastic bags each with traces of white crystalline substance;

(b) one (1) improvised water pipes containing traces of white crystalline substance;

(c) two (2) empty strips of aluminum foil;

(d) one (1) pin;

(e) one (1) pair of scissors;

(f) one (1) improvised bamboo tongs;

(g) one (1) pack of empty small transparent plastic bag;

(h) one (1) improvised burner; and

(i) two (2) disposable lighters.

all are fit or intended for smoking, consuming, administering, injecting any dangerous drug into the body.8

On 30 April 2003, appellant, having been charged without the benefit of a preliminary investigation, filed a motion for reinvestigation.9 On 14 May 2003, the trial court granted the motion and ordered the Pasig City Prosecutor to conduct a preliminary investigation.10 With the finding of the City Prosecutor that no cogent reason existed to modify or reverse its previous finding of probable cause against accused-appellant, the trial court set the cases for arraignment and trial.11

When arraigned on 4 September 2003, appellant, with the assistance of counsel de oficio, pleaded not guilty to the crimes charged.12

During the pre-trial conference, appellant admitted the existence and the contents of the Request for Laboratory Examination13 and the Forensic

Chemist Report,14 with the qualification that the subject of the forensic report was not taken from him, and if ever same was taken from him, it was obtained illegally.15

With the termination of the pre-trial conference, the cases were heard jointly.

The prosecution presented two witnesses: PO1 Joselito Esmallaner16

and SPO3 Leneal Matias,17 both members of the Station Drug Enforcement Unit of the Pasig City Police Station.

The version of the prosecution is as follows:

On 22 April 2003, SPO4 Danilo Tuaño, Officer-in-Charge of the Station Drug Enforcement Unit of the Pasig City Police Station, designated PO1 Joselito Esmallaner to act as a poseur-buyer in a buy-bust operation to be conducted against appellant along Beverly Street, Barangay Buting, Pasig City. At around 10:30 p.m., the buy-bust team headed by SPO3 Leneal Matias arrived at the target area. PO1 Esmallaner and the informant proceeded to the unnumbered house of appellant, while SPO3 Matias and the other members of the team positioned themselves around ten (10) meters away to serve as back-up.

After the informant knocked on appellant’s front door, the latter came out. Upon recognizing the informant, appellant asked, "Pare, ikaw pala. Bibili ka ba?" The informant who was standing next to PO1 Esmallaner replied "Oo, itong kasama ko kukuha." Appellant then asked PO1 Esmallaner how much drugs he intended to buy to which PO1 Esmallaner replied, "P100 lang." PO1 Esmallaner thereafter gave a one hundred peso (P100.00) bill to the appellant. Thereafter, the appellant went inside the house. Appellant returned and handed to PO1 Esmallaner a plastic sachet containing a white crystalline substance later found to be shabu.18

Upon receiving the plastic sachet, PO1 Esmallaner grabbed appellant’s hand and got the P100.00 bill from the right front pocket of appellant’s pants. He introduced himself as a police officer and informed the appellant of his violation and his constitutional rights. PO1 Esmallaner then marked the plastic sachet19 and placed his initials "JE" on the upper right portion of the P100.0020 bill with serial number FX230133.21

After seeing that PO1 Esmallaner tried to grab the hand of appellant, who was able to run inside the house and tried to lock the door, SPO3 Matias and the other members of the team followed PO1 Esmallaner inside appellant’s house. Matias saw three pieces of heat-sealed transparent plastic sachets22 containing a white crystalline substance which turned out to be shabu, two disposable lighters,23 six strips of aluminum foil with traces of shabu,24 improvised water pipe used as tooter,25 improvised burner,26 wooden sealer, small scissors,27 14 pieces of transparent plastic sachets,28 and one small needle29 on top of a small chair (bangkito). The items confiscated were marked and turned over to the Investigator who requested laboratory examination on said items.

On 23 April 2003, Chemistry Report No. D-733-03E30 was issued with the conclusion that the four sachets, together with four other unsealed transparent plastic bags and a water pipe used as tooter, taken from appellant, were positive for Methamphetamine Hydrochloride (shabu). On the same date, poseur-buyer PO1 Esmallaner and team leader SPO3 Matias executed their Joint Affidavit of Arrest.31

For the defense, appellant32 took the witness stand together with his common-law wife, Gina Dean.33

Appellant and his common-law wife deny that a buy-bust occurred. Appellant claims that at about 10:00 p.m. of 22 April 2003, he and his common-law wife were with their three children in their house in Beverly Street, Buting, Pasig City, when somebody kicked the door of their house. Appellant was in the comfort room, while his common-law wife was in the bedroom taking care of their children. Thereafter, four persons, later identified as police officers Esmallaner, Mapula, Espares and Familiara, entered without any warrant of arrest or search warrant. He asked them what they wanted and he was told that they were going to arrest him. When he asked for the reason why he was being arrested, he was told that he would just be informed in their office. With his hands on his back, appellant was handcuffed. The policemen subsequently conducted a search in the house, but they neither recovered nor took anything. After that, appellant was brought to the police station, investigated and placed in jail. He added that the violent entry made by the policemen was witnessed by some of his neighbors, namely, Buboy, Macmac and Zaldy, who were then having a drinking session.

On 19 August 2004, the trial court promulgated its decision finding appellant guilty beyond reasonable doubt of the crimes charged. It disposed of the cases as follows:

WHEREFORE, premises considered, the accused ALVIN PRINGAS is hereby found GUILTY beyond reasonable doubt of Violation of Section 5 of R.A. 9165 (illegal sale of shabu) and he is hereby sentenced to suffer the penalty of LIFE IMPRISONMENT and to pay a fine of P500,000.00.

Accused ALVIN PRINGAS is also found GUILTY OF Violation of Section 11 of the same law and he is hereby sentenced to suffer the indeterminate penalty of TWELVE (12) YEARS and ONE (1) DAY to FIFTEEN (15) YEARS of imprisonment and to pay a fine of P400,000.00 and also of violation of Section 12 of R.A. 9165, and he is hereby sentenced to suffer imprisonment from SIX (6) MONTHS (and) ONE (1) DAY as minimum to THREE (3) YEARS and ONE (1) DAY as maximum, and to pay a fine of P10,000.00.

Considering the penalty imposed, the immediate commitment of the accused to the National Bilibid Prisons is ordered.

The Court fully realizes that the penalty prescribed by law for the offense committed by the accused is quite severe. However, the Court will not question the wisdom of the law and of the legislators who passed it. Dura lex, sed lex. The only thing that the Court can do is to recommend that the accused be pardoned after he shall have served the minimum period of the penalty imposed on him.34

On 3 September 2004, appellant, through counsel, appealed the decision to the Court of Appeals via a Notice of Appeal.35 With the filing of the Notice of Appeal, the trial court transmitted36 the records of the case to the Court of Appeals for review pursuant to People v. Mateo.37

In its Decision dated 31 August 2006, the Court of Appeals dismissed appellant’s appeal and affirmed in toto the decision of the trial court.38

Unsatisfied, appellant appealed his conviction before this Court by way of a Notice of Appeal.39

With the elevation of the records to the Court and the acceptance of the appeal, the parties were required to file their respective supplemental briefs, if they so desired, within 30 days from notice.40 The parties manifested that they were not filing supplemental briefs, arguing that the issues of the case had been discussed in their respective briefs.41

Appellant makes a lone assignment of error, to wit:

THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY OF THE OFFENSES CHARGED DESPITE THE INADMISSIBILITY OF THE EVIDENCE HAVING BEEN OBTAINED IN VIOLATION OF SECTIONS 21 AND 86, REPUBLIC ACT NO. 9165.

Appellant argues that the apprehending police officers’ failure to comply with the provisions (Sections 21 and 86) of Republic Act No. 9165 casts doubt on the validity of appellant’s arrest and the admissibility of the evidence allegedly seized from him. He maintains that since the procurement of the evidence, both documentary and testimonial, during the buy-bust operation was violative of said law and of his constitutional right against illegal arrest, the same should not have been received in evidence to prove his guilt they being inadmissible under the law.

Appellant claims that the police officers violated Section 86 of Republic Act No. 9165 when the alleged buy-bust operation that led to the apprehension of appellant was conducted without the involvement of the Philippine Drug Enforcement Agency (PDEA). It is his contention that nowhere in the Joint Affidavit of Arrest executed by the members of the arresting team was it shown that the buy-bust operation was conducted with the assistance, coordination, knowledge or consent of the PDEA.

We find this claim untenable.

In the Joint Affidavit of Arrest, it is stated that "That, on or about 10:30 PM April 22, 2003, as instructed by SPO4 DANILO TUAÑO, OIC/SDEU, this Office effected a coordination to (sic) Metro Manila Regional Office of PDEA and formed a team of SDEU operatives with a confidential informant to conduct anti-narcotics/Buy-bust operation against the said person x x x."42 This portion of the affidavit clearly negates appellant’s claim that the buy-bust operation subject of the case was not with the involvement of the PDEA. Even assuming ex gratia argumenti that the aforementioned statement was not contained in the affidavit, appellant’s claim of lack of involvement of the PDEA will render neither his arrest illegal nor the evidence seized from him inadmissible. Quoting People v. Sta. Maria,43 we resolved the very same issue in this wise:

Appellant would next argue that the evidence against him was obtained in violation of Sections 21 and 86 of Republic Act No. 9165 because the buy-bust operation was made without any involvement of the Philippine Drug Enforcement Agency (PDEA). Prescinding therefrom, he concludes that the prosecution’s evidence, both testimonial and documentary, was inadmissible having been procured in violation of his constitutional right against illegal arrest.

The argument is specious.

Section 86 of Republic Act No. 9165 reads:

Sec. 86. Transfer, Absorption, and Integration of All Operating Units on Illegal Drugs into the PDEA and Transitory Provisions. – The Narcotics Group of the PNP, the Narcotics Division of the NBI and the Customs Narcotics Interdiction Unit are hereby abolished; however they shall continue with the performance of their task as detail service with the PDEA, subject to screening, until such time that the organizational structure of the Agency is fully operational and the number of graduates of the PDEA Academy is sufficient to do the task themselves: Provided, That such personnel who are affected shall have the option of either being integrated into the PDEA or remain with their original mother agencies and shall, thereafter, be immediately reassigned to other units therein by the head of such agencies. Such personnel who are transferred, absorbed and integrated in the PDEA shall be extended appointments to positions similar in rank, salary, and other emoluments and privileges granted to their respective positions in their original mother agencies.

The transfer, absorption and integration of the different offices and units provided for in this Section shall take effect within eighteen (18) months from the effectivity of this Act: Provided, That personnel absorbed and on detail service shall be given until five (5) years to finally decide to joint the PDEA.

Nothing in this Act shall mean a diminution of the investigative powers of the NBI and the PNP on all other crimes as provided for in their respective organic laws: Provided, however, That when the investigation being conductetd by the NBI, PNP or any ad hoc anti-drug task force is found to be a violation of any of the provisions of this Act, the PDEA shall be the lead agency. The NBI, PNP or any of the task force shall immediately transfer the same to the PDEA: Provided, further, That the NBI, PNP and the Bureau of Customs shall maintain close coordination with the PDEA on all drug related matters.

Cursory read, the foregoing provision is silent as to the consequences of failure on the part of the law enforcers to transfer drug-related cases to the PDEA, in the same way that the Implementing Rules and Regulations (IRR) of Republic Act No. 9165 is also silent on the matter. But by no stretch of imagination could this silence be interpreted as a legislative intent to make an arrest without the participation of PDEA illegal nor evidence obtained pursuant to such an arrest inadmissible.

It is a well-established rule of statutory construction that where great inconvenience will result from a particular construction, or great public interests would be endangered or sacrificed, or great mischief done, such construction is to be avoided, or the court ought to presume that such construction was not intended by the makers of the law, unless required by clear and unequivocal words.

As we see it, Section 86 is explicit only in saying that the PDEA shall be the "lead agency" in the investigations and prosecutions of drug-related cases. Therefore, other law enforcement bodies still possess authority to perform similar functions as the PDEA as long as illegal drugs cases will eventually be transferred to the latter. Additionally, the same provision states that PDEA, serving as the implementing arm of the Dangerous Drugs Board, ":shall be responsible for the efficient and effective law enforcement of all the provisions on any dangerous drug and/or controlled precursor and essential chemical as provided in the Act." We find much logic in the Solicitor General’s interpretation that it is only appropriate that drugs cases being handled by other law

enforcement authorities be transferred or referred to the PDEA as the "lead agency" in the campaign against the menace of dangerous drugs. Section 86 is more of an administrative provision. By having a centralized law enforcement body, i.e., the PDEA, the Dangerous Drugs Board can enhance the efficacy of the law against dangerous drugs. To be sure, Section 86(a) of the IRR emphasizes this point by providing:

(a) Relationship/Coordination between PDEA and Other Agencies. – The PDEA shall be the lead agency in the enforcement of the Act, while the PNP, the NBI and other law enforcement agencies shall continue to conduct anti-drug operations in support of the PDEA x x x. Provided, finally, that nothing in this IRR shall deprive the PNP, the NBI, other law enforcement personnel and the personnel of the Armed Forces of the Philippines (AFP) from effecting lawful arrests and seizures in consonance with the provisions of Section 5, Rule 113 of the Rules of Court.

As regards the non-participation of PDEA in a buy-bust operation, we said:

[T]he challenged buy-bust operation, albeit made without the participation of PDEA, did not violate appellant’s constitutional right to be protected from illegal arrest. There is nothing in Republic Act No. 9165 which even remotely indicate the intention of the legislature to make an arrest made without the participation of the PDEA illegal and evidence obtained pursuant to such an arrest inadmissible. Moreover, the law did not deprive the PNP of the power to make arrests.44

As regards Section 21 of Republic Act No. 9165, appellant insists there was a violation of said section when pictures, showing him together with the confiscated shabu, were not immediately taken after his arrest. He added that the Joint Affidavit of Arrest of the apprehending team did not indicate if the members thereof physically made an inventory of the illegal drugs in the presence of the appellant or his/her representative or counsel, a representative from the media and the Department of Justice, and any elected public official who shall be required to sign the copies of the inventory and given a copy thereof. In short, appellant insists that non-compliance with Section 21 regarding the custody and disposition of the confiscated/seized dangerous drugs and paraphernalia, i.e., the taking of pictures and the making of an inventory, will make these items inadmissible in evidence.

We do not agree. Section 21 reads:

SEC. 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. – The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner:

(1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who

shall be required to sign the copies of the inventory and be given a copy thereof.

Non-compliance by the apprehending/buy-bust team with Section 21 is not fatal as long as there is justifiable ground therefor, and as long as the integrity and the evidentiary value of the confiscated/seized items, are properly preserved by the apprehending officer/team.45 Its non-compliance will not render an accused’s arrest illegal or the items seized/confiscated from him inadmissible. What is of utmost importance is the preservation of the integrity and the evidentiary value of the seized items, as the same would be utilized in the determination of the guilt or innocence of the accused. In the case under consideration, we find that the integrity and the evidentiary value of the items involved were safeguarded. The seized/confiscated items were immediately marked for proper identification. Thereafter, they were forwarded to the Crime Laboratory for examination.

Though the justifiable ground for non-compliance with Section 21 was not expressly stated by the arresting/buy-bust team, this does not necessarily mean that appellant’s arrest was illegal or the items seized/confiscated inadmissible. In the case at bar, as in Sta. Maria, the justifiable ground will remain unknown because appellant did not question during the trial the custody and disposition of the items taken from him. Assuming that Sections 21 and 86 were indeed breached, appellant should have raised these issues before the trial court. This, he did not do. Never did he question the custody and disposition of the items that were supposedly taken from him. It was only on appeal before the Court of Appeals that he raised them. This, he cannot do. We held:

The law excuses non-compliance under justifiable grounds. However, whatever justifiable grounds may excuse the police officers involved in the buy-bust operation in this case from complying with Section 21 will remain unknown, because appellant did not question during trial the safekeeping of the items seized from him. Indeed, the police officers’ alleged violations of Sections 21 and 86 of Republic Act 9165 were not raised before the trial court but were raised instead for the first time on appeal. In no instance did appellant least intimate at the trial court that there were lapses in the safekeeping of seized items that affected their integrity and evidentiary value. Objection to evidence cannot be raised for the first time on appeal; when a party desires the court to reject the evidence offered, he must so state in the form of objection. Without such objection he cannot raise the question for the first time on appeal.46

Appellant was charged with violations of Sections 5, 11 and 12 of Republic Act No. 9165. Appellant was charged with violation of Section 5 for selling 0.03 gram of methamphetamine hydrochloride (shabu). The elements necessary for the prosecution of illegal sale of drugs are: (1) the identity of the buyer and the seller, the object, and consideration; and (2) the delivery of the thing sold and the payment therefor.47 What is material to the prosecution for illegal sale of dangerous drugs is the proof that the transaction took place, coupled with the presentation in court of evidence of corpus delicti.48

The evidence for the prosecution showed the presence of all these elements. The poseur-buyer and the team leader of the apprehending team narrated how the buy-bust happened, and that the shabu sold was presented and identified in court. The poseur-buyer, PO1 Joselito Esmallaner, identified appellant as the seller of the shabu. Esmallaner’s testimony was corroborated by the team leader, SPO3 Leneal Matias. The white crystalline substance weighing 0.03 grams which was bought

from appellant for P100.00 was found positive for methamphetamine hydrochloride (shabu) per Chemistry Report No. D-733-03E.

In this jurisdiction, the conduct of a buy-bust operation is a common and accepted mode of apprehending those involved in the illegal sale of prohibited or regulated drugs. It has been proven to be an effective way of unveiling the identities of drug dealers and of luring them out of obscurity.49 Unless there is clear and convincing evidence that the members of the buy-bust team were inspired by any improper motive or were not properly performing their duty, their testimonies on the operation deserve full faith and credit.50

In the case at bar, we find the testimonies of PO1 Joselito Esmallaner and SPO3 Leneal Matias credible. It is a fundamental rule that findings of the trial courts which are factual in nature and which involve credibility are accorded respects when no glaring errors, gross misapprehension of facts and speculative, arbitrary and unsupported conclusions can be gathered from such findings. The reason for this is that the trial court is in a better position to decide the credibility of witnesses, having heard their testimonies and observed their deportment and manner of testifying during the trial.51 The rule finds an even more stringent application where said findings are sustained by the Court of Appeals.52

Finding no reason to depart from the findings of the trial court and the Court of Appeals, we stand by their findings.

We, likewise, uphold the presumption of regularity in the performance of official duties. Said presumption was not overcome, as there was no evidence showing that PO1 Joselito Esmallaner and SPO3 Leneal Matias were impelled by improper motive. Appellant and his common-law wife testified that the members of the buy-bust team were complete strangers.53

Appellant’s defense that there was no buy-bust operation deserves scant consideration. Having been caught in flagrante delicto, his identity as seller of the shabu can no longer be doubted. Against the positive testimonies of the prosecution witnesses, appellant’s plain denial of the offenses charged, unsubstantiated by any credible and convincing evidence, must simply fail.54 Being his common-law wife, we find Gina Dean not to be a credible witness. Appellant said three of his neighbors witnessed the violent entry made by the policemen in his house, but he failed to present them or any of them to prove his point.

Appellant was, likewise, charged with possession of three sachets of shabu with a total weight of 0.29 gram. In illegal possession of dangerous drugs, the elements are: (1) the accused is in possession of an item or object which is identified to be a prohibited drug; (2) such possession is not authorized by law; and (3) the accused freely and consciously possessed the said drug.55 All these elements have been established.

SPO3 Leneal Matias narrated how he discovered the three pieces of heat-sealed transparent plastic sachets containing a white crystalline substance and other drug paraphernalia on top of a small chair (bangkito) in the house of appellant.

Q. After the accused handed something to PO1 Esmallaner, what else happened?

A. I saw PO1 Esmallaner try to grab the hand of the accused, but the accused was able to run inside their house, and tried to close the door, sir.

Q. As a member of the back-up team upon seeing this incident, what did you do, if any?

A. We gave support to PO1 Esmallaner, sir.

Q. Will you please tell us what kind of support did you give to PO1 Esmallaner?

A. To arrest the accused, sir.

Q. What did you do in particular?

A. PO1 Esmallaner followed the accused inside me and my group followed Esmallaner also inside the house, sir.

Q. So, in other words you, and your co-members also went inside the house?

A. Yes, sir.

Q. When [you] went inside the house, what did you find out if any?

A. PO1 Esmallaner accosted the accused, while I discovered three (3) pieces of heat sealed transparent plastic sachet containing undetermined amount of white crystalline substance suspected to be shabu, and other paraphernalia on top of the small "bangkito," sir.

Q. Were these three (3) sachet and paraphernalia were scattered on the small "bangkito?"

A. Yes, sir.

Q. And what did you do, if any when you discovered the presence of these items?

A. I confiscated it and then I marked it, sir.

Q. When you said it what would this?

A. The drug paraphernalia, and the heat plastic sachet, sir.

Q. Could you remember one by one what are those paraphernalia that you confiscated and marked it?

A. The paraphernalia are two (2) disposable lighter colored red and yellow, six (6) pieces of small stripe of aluminum foil with traces of suspected shabu improvised water pipe used as tooter, improvised burner, wooden sealer, and the three (3) pieces heat plastic sachet, fourteen (14) pieces of transparent plastic sachet. That is all I can remember, sir.

Q. Did you place markings on that items that you confiscated?

A. Yes, sir.56

Appellant was indeed the owner of these items for they were found in his house on top of the bangkito following the buy-bust operation and after his arrest. The substance in the plastic sachets was shabu as confirmed by Chemistry Report No. D-733-03E. Finally, the drug paraphernalia seized are sufficient to prove that appellant also violated Section 12 of Republic Act No. 9165.

Reviewing the penalties imposed by the trial court as affirmed by the Court of Appeals, we find them to be in order.

WHEREFORE, premises considered, the instant appeal is DENIED. The Decision of the Court of Appeals in CA-G.R. CR-HC No. 00303 dated 31 August 2006 which affirmed in toto the decision of the Regional Trial Court (RTC) of Pasig City, Branch 154, convicting accused-appellant Alvin Panganiban Pringas of Violation of Sections 5, 11 and 12 of Republic Act No. 9165, is hereby AFFIRMED. No costs.

SO ORDERED.

G.R. No. 181545              October 8, 2008

THE PEOPLE OF THE PHILIPPINES, appellee, vs.MARK DELA CRUZ, appellant.

D E C I S I O N

TINGA, J.:

Subject of this appeal is the 12 September 2007 decision1 of the Court of Appeals in CA-G.R. CR-H.C. No. 02534, affirming the 24 August 2006 judgment2 of the Regional Trial Court (RTC), Branch 120 of Caloocan City, finding appellant Mark Dela Cruz y Batac guilty of violation of Section 5, Article II of Republic Act (R.A.) No. 9165.

Appellant was charged with illegal sale of shabu in an Information dated 18 July 2003, committed as follows:

That on or about the 16th day of July 2003 in Caloocan City, M.M. and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together and mutually helping one another, without

having been authorized by law, did then and there wil[l]fully, unlawfully and feloniously sell and deliver to one PO2 EUGENE C. AMOYO, who posed as buyer, two (2) pcs. of small transparent plastic sachets containing 0.08 gram, total weight of Methylamphetamine Hydrochloride (shabu) for [t]wo (2) pcs of One Hundred Peso Bill with SN DF950395 and KY384741 knowing the same to be a dangerous drug.

CONTRARY TO LAW.3

Appellant entered a plea of not guilty upon arraignment. During the pre-trial conference, the parties stipulated that P/Insp. Ericson L. Calabocal conducted a qualitative examination on two (2) heat-sealed transparent plastic sachets evidenced by Physical Science Report No. D-845-03 dated 17 July 2003. It was further stipulated that said witness had no personal knowledge as to the facts and circumstances surrounding the arrest of appellant, as well as the source of the subject specimens.4

Trial ensued. Witnesses for the prosecution narrated that in the evening of 16 July 2003, a male informant came to the office of the Northern Police District on Tanigue Street, Kaunlaran Village, Caloocan City. In the presence of PO3 Gilbert Velasco (PO3 Velasco) and PO2 Eugene Amoyo (PO2 Amoyo), the informant complained about the rampant selling of shabu by a certain Mac-Mac. Said information was relayed to P/Chief Inspector Rafael Santiago who immediately instructed PO3 Velasco to form a buy-bust team. The team was composed of PO3 Velasco, PO2 Amoyo, PO3 Joel Borda (PO3 Borda), PO2 Loreto Lagmay, PO1 Renato Ameng, PO1 Allan Reyes and PO1 Joel Cosme. PO2 Amoyo was the designated poseur-buyer. Two (2) pieces of P100.00 bills were prepared as boodle money. The initials "ECA" were placed on the bills.

The buy-bust team underwent a briefing and then proceeded to the target area on board two (2) separate vehicles. They arrived at a parking lot along Hipon Liit in Dagat-dagatan at 7:30 p.m. PO2 Amoyo, PO3 Velasco and PO3 Borda, along with the informant, waited beside a coconut tree for Mac-Mac.

After two hours, appellant arrived with two male companions. The informant approached appellant and introduced PO2 Amoyo to him as a buyer of P200.00 worth of shabu. Appellant left for a while to get the shabu from his companions, who were standing 7 meters away from the group. He returned ten (10) minutes later and handed two (2) plastic sachets to PO2 Amoyo, who, in exchange, handed over the boodle money.

After the exchange, PO2 Amoyo raised his left hand to signal the other members of the buy-bust team that the transaction had already been concluded. PO3 Velasco and PO3 Borda immediately arrested appellant while PO2 Amoyo ran after appellant’s companions. There was an exchange of gunfire between PO2 Amoyo and an unidentified companion but the latter was able to escape unscathed. PO2 Amoyo kept the two (2) plastic sachets in his pocket.

A spot investigation was conducted on appellant. It was revealed that the two (2) male companions were identified as Amay and Tabo. Appellant was then brought to the police headquarters. PO2 Amoyo placed his markings "ECA-BB-1" and "ECA-BB-2" on the plastic sachets before turning them over, together with the buy-bust money, to SPO4 Jorge Tabayag. PO2 Amoyo also prepared a request for laboratory

examination addressed to the Philippine National Police (PNP) Crime Laboratory.

The two (2) plastic sachets containing white crystalline substance were found positive for shabu. Said finding was indicated in Physical Science Report No. D-845-035 prepared by Forensic Chemist and Police Inspector Erickson L. Calabocal of the PNP Crime Laboratory Group.

Appellant presented a different version of the facts. He testified that at 8:30 p.m. on 16 July 2003, he was sitting in the plaza located on Hipon Liit St., Dagat-dagatan, Caloocan City. He was waiting for his brother to deliver his boots when the policemen arrived and were looking for an alias Amay. Appellant then heard a gunshot and saw Amay firing the shot. Appellant ran towards his house. Later, the policemen went to his house and handcuffed him. When appellant asked why he was being arrested, the policemen claimed that appellant knew Amay. Appellant denied selling shabu and asserted that the case was filed against him when he refused to give information about Amay.

Appellant’s testimony was corroborated by his brother, Balweg Dela la Cruz, who stated in court that appellant instructed him to get his boots and bring them to the plaza at around 8:30 p.m.6 As he was about to leave the house, Balweg saw his brother being arrested by two policemen. He heard from other people that the policemen were asking appellant if he knew of a man named Amay.7

In finding appellant guilty, the trial court ruled that there was a meeting of minds between the poseur-buyer and appellant as to the delivery of shabu in exchange for P200.00. The dispositive portion of said judgment reads:

Premises considered, this Court finds accused MARK DELA CRUZ Y BATAC "GUILTY" beyond reasonable doubt for Violation of Sec. 5, Article II of [R.A. No.] 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002 and imposes upon him the penalty of Life Imprisonment and a fine of Five Hundred Thousand (P500,000.00) Pesos.

The two (2) plastic sachets containing 0.04 gram each of Methylamphetamine Hydrochloride is hereby ordered confiscated in favor of the government to be turned over to the Philippine Drug Enforcement Agency (PEDEA) [sic] for proper disposition.

SO ORDERED.8

On 15 September 2006, appellant appealed to the Court of Appeals via a notice of appeal.9

On 12 September 2007, the Court of Appeals rendered judgment affirming the RTC's decision in Criminal Case No. 68601.10 The appellate court gave weight to the testimony of the poseur-buyer as well as to the Physical Science Report in concluding that the illegal sale of shabu was perpetrated by appellant. The appellate court rejected appellant’s defense of frame-up for failure to substantiate such allegation and in light of the presumption of regularity accorded to police officers in the performance of their official duties. Anent the alleged failure of the police officers to observe the procedure laid down under Section 21 of R. A. No. 9165, the appellate court held that such failure is

not fatal as the circumstances in the instant case show that the integrity pertaining to the custody of the seized shabu was not compromised notwithstanding that the same were marked only during the investigation held at the police station.11

After obtaining an unfavorable decision, appellant filed a notice of appeal before this Court.12

On 9 April 2008, this Court required the parties to simultaneously file their supplemental briefs.13

In two separate manifestations, both parties expressed their intention not to file any supplemental brief since all the issues and arguments have already been raised in their respective Briefs.14

Appellant maintains that the prosecution was not able to establish the moral certainty required by law to prove his guilt beyond reasonable doubt. He contends that his defenses of alibi and denial were supported not only by his testimony but by that of other witnesses. He questions the identity of the shabu allegedly confiscated from him as the marking was made only in the police station in front of the investigating officer, contrary to the requirement laid down in Section 21 (1) of RA No. 9165. He also assails the forensic laboratory examination result in that it was not covered by a certification in violation of Section 21 (3) of the same law. He stresses that the prosecution must not simply rely on the presumption of regularity for it cannot by itself support a judgment of conviction.15

In its appellee’s brief,16 the Office of the Solicitor-General (OSG) supports the conviction of appellant. It argues that appellant was caught in flagrante delicto selling shabu in a legitimate buy-bust operation. It claims that the elements necessary in the prosecution of the illegal sale of drugs were duly established by the prosecution, namely: the appellant, as seller of the shabu, and the poseur-buyer were identified; and the shabu confiscated from appellant and the money used to buy it were also presented in court. The OSG emphasizes that the sachets of shabu presented in court were the same sachets confiscated from appellant and subjected to laboratory examination. It justifies the non-observance of Section 21 (1) of R. A. No. 9165 since the corpus delicti of the illegal sale of drugs was duly established during trial. It adds that after the confiscation of the sachets of shabu from appellant, they were immediately submitted for laboratory examination to the PNP Crime Laboratory.17

The appeal is meritorious.

The elements necessary for the prosecution of illegal sale of drugs are: (1) the identities of the buyer and the seller, the object, and consideration; and (2) the delivery of the thing sold and the payment therefor. What is material to the prosecution for illegal sale of dangerous drugs is the proof that the transaction or sale actually took place, coupled with the presentation in court of evidence of corpus delicti.18

The common issue that crops out of a buy-bust operation, like in this case, is whether the drug submitted for laboratory examination and presented in court was actually recovered from appellant. The Court is cognizant of the fact that an entrapment operation is open to possibilities of abuse. It is by this same thrust that the chain of custody

rule was adopted by the Court. In Lopez v. People,19 we had the occasion to expound on the chain of custody rule, thus:

As a method of authenticating evidence, the chain of custody rule requires that the admission of an exhibit be preceded by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be. It would include testimony about every link in the chain, from the moment the item was picked up to the time it is offered into evidence, in such a way that every person who touched the exhibit would describe how and from whom it was received, where it was and what happened to it while in the witness’ possession, the condition in which it was received and the condition in which it was delivered to the next link in the chain. These witnesses would then describe the precautions taken to ensure that there had been no change in the condition of the item and no opportunity for someone not in the chain to have possession of the same.

While testimony about a perfect chain is not always the standard because it is almost always impossible to obtain, an unbroken chain of custody becomes indispensable and essential when the item of real evidence is not distinctive and is not readily identifiable, or when its condition at the time of testing or trial is critical, or when a witness has failed to observe its uniqueness. The same standard likewise obtains in case the evidence is susceptible to alteration, tampering, contamination and even substitution and exchange. In other words, the exhibit’s level of susceptibility to fungibility, alteration or tampering—without regard to whether the same is advertent or otherwise not—dictates the level of strictness in the application of the chain of custody rule.

Indeed, the likelihood of tampering, loss or mistake with respect to an exhibit is greatest when the exhibit is small and is one that has physical characteristics fungible in nature and similar in form to substances familiar to people in their daily lives. Graham v. State positively acknowledged this danger. In that case where a substance later analyzed as heroin—was handled by two police officers prior to examination who however did not testify in court on the condition and whereabouts of the exhibit at the time it was in their possession—was excluded from the prosecution evidence, the court pointing out that the white powder seized could have been indeed heroin or it could have been sugar or baking powder. It ruled that unless the state can show by records or testimony, the continuous whereabouts of the exhibit at least between the time it came into the possession of police officers until it was tested in the laboratory to determine its composition, testimony of the state as to the laboratory’s findings is inadmissible.

A unique characteristic of narcotic substances is that they are not readily identifiable as in fact they are subject to scientific analysis to determine their composition and nature. The Court cannot reluctantly close its eyes to the likelihood, or at least the possibility, that at any of the links in the chain of custody over the same there could have been tampering, alteration or substitution of substances from other cases—by accident or otherwise—in which similar evidence was seized or in which similar evidence was submitted for laboratory testing. Hence, in authenticating the same, a standard more stringent than that applied to cases involving objects which are readily identifiable must be applied, a more exacting standard that entails a chain of custody of the item with sufficient completeness if only to render it improbable that the original item has either been exchanged with another or been contaminated or tampered with.

Thus, the corpus delicti should be identified with unwavering exactitude.20

This Court believes that the prosecution failed to clearly establish the chain of custody of the seized plastic sachets containing shabu from the time they were first allegedly received until they were brought to the police investigator.

PO2 Amoyo testified that he failed to place any marking on the sachets of shabu immediately after the apprehension of appellant. In fact, PO3 Amoyo admitted that he only placed his markings upon being ordered by SPO4 Tabayag.21

The defense however failed to corroborate PO2 Amoyo’s claim. While SPO4 Tabayag was presented in court, he neglected to mention nor was he asked about the markings on the shabu. On the contrary, the sworn statement of PO2 Amoyo, which was formally offered in evidence, seemed to suggest that markings were made prior to the submission of the shabu to SPO4 Tabayag, to wit:

16— T: Maipapakita mo ba yong sinasabi mong pinaghihinalaang Shabu na nabili mo dito kay Mark Dela Cruz, alyas Mac Mac?

S: Opo. Ito po. [Affiant presented two (2) pieces of small transparent plastic sachets (heat-sealed) containing a crystalline substance believed to be Shabu] at ang plastic po nito ay aking minarkahan ng aking inisyal na "ECA-BB1" at "ECA-BB2]."22

Verily, PO2 Amoyo’s testimony suggests that he already placed his markings prior to being questioned by SPO4 Tabayag.

Moreover, no other witness was presented to testify or to fill the gap from the time SPO4 Tabayag received the sachets of shabu from PO2 Amoyo up to the time they were delivered to the PNP Crime Laboratory.

Furthermore, nothing on record shows that the procedural requirements of Section 21, Paragraph 1 of Article II of R. A. No. 9165 23 with respect to custody and disposition of confiscated drugs were complied with. There was no physical inventory and photograph of the items allegedly confiscated from appellant. Neither did the police officers offer any explanation for their failure to observe the rule. The prosecution merely sought refuge in its belief that a stringent application of the rule may be dispensed with if the corpus delicti has been duly established.

In People v. Orteza,24 the Court citing People v. Laxa,25 People v. Kimura26 and Zarraga v. People,27 reiterated the ruling that the failure of the police to comply with the procedure in the custody of the seized drugs raises doubt as to its origins.28

In People v. Nazareno,29 the poseur-buyer failed to immediately place his markings on the seized drugs before turning them over to the police investigators. The police officer who placed his markings was not presented to testify on what actually transpired after the drugs were turned over to him. The Court equated these circumstances as failure on the part of the prosecution to prove the existence of the corpus delicti.30

As stated by the Court in People v. Santos, Jr.,31 failure to observe the proper procedure also negates the operation of the presumption of regularity accorded to police officers.32 As a general rule, the testimony

of the police officers who apprehended the accused is usually accorded full faith and credit because of the presumption that they have performed their duties regularly.33 However, when the performance of their duties is tainted with irregularities, such presumption is effectively destroyed.

While the law enforcers enjoy the presumption of regularity in the performance of their duties, this presumption cannot prevail over the constitutional right of the accused to be presumed innocent and it cannot by itself constitute proof of guilt beyond reasonable doubt.34 The presumption of regularity is merely just that—a mere presumption disputable by contrary proof and which when challenged by the evidence cannot be regarded as binding truth. 35

In fine, the failure to establish the corpus delicti is detrimental to the cause of the prosecution. The Court is thus constrained to acquit appellant on reasonable doubt.

WHEREFORE, the assailed Decision of the Court of Appeals dated 12 September 2007 affirming the judgment of conviction of the Regional Trial Court of Caloocan City, Branch 120 is REVERSED and SET ASIDE. Appellant MARK DELA CRUZ y BATAC is ACQUITTED on reasonable doubt and is accordingly ordered immediately released from custody unless he is being lawfully held for another offense.

The Director of the Bureau of Corrections is ORDERED to implement this decision forthwith and to INFORM this Court, within five (5) days from receipt hereof, of the date appellant was actually released from confinement.

Let a copy of this decision be forwarded to the PNP Director and the Director General of the Philippine Drug Enforcement Agency for proper guidance and implementation. No costs.

SO ORDERED.

G.R. No. 181492             December 16, 2008

THE PEOPLE OF THE PHILIPPINES, appellee, vs.SAMUEL OBMIRANIS y ORETA, appellant.

D E C I S I O N

TINGA, J.:

This is an appeal filed by Samuel Obmiranis y Oreta (appellant) who was charged with violation of Section 5 in relation to Section 26 of Republic Act (R.A.) No. 9165.1 He was allegedly caught in a buy-bust operation by elements of the Manila Western Police District (MWPD) while offering to sell methylamphetamine hydrochloride, a dangerous drug locally known as shabu. The criminal information filed with the Regional Trial Court (RTC) of Manila, Branch 22 accused him as follows:

That on or about May 18, 2004, in the City of Manila, Philippines, the said accused, not having been authorized by law to sell, trade, deliver or give away to another any dangerous drug, did then and there willfully, unlawfully and knowingly attempt to sell or offer for sale one (1) transparent plastic sachet containing TWO POINT EIGHT ZERO ZERO (2.800) grams of white crystalline substance known as "SHABU" containing methylamphetamine hydrochloride, a dangerous drug.

Contrary to law.3

At the pre-trial, both the prosecution and the defense stipulated on the qualification of Forensic Chemist Elisa Reyes and, thus, both parties dispensed with her testimony. The prosecution further admitted that the forensic chemist who analyzed the seized the confiscated substance-which yielded positive for methylamphetamine hydrochloride content-did not have personal knowledge of the ultimate source of the drug.4

Appellant was brought to trial after having entered a negative plea.5 The prosecution then proceeded to prove the charge against him through the lone testimony of police officer Jerry Velasco (Velasco). Velasco was the alleged leader of the raiding team that apprehended appellant on 18 May 2004 at the corner of G.Tuazon and Jhocson Streets in Sampaloc, Manila.6

The narrative woven by Velasco established the following facts: On 17 May 2004, Police Superintendent Marcelino Pedrozo (Pedrozo) of the MWPD organized a buy-bust team on the information of a confidential informant that the latter was able to place an order for half a "bulto" of shabu with appellant. Velasco was designated as the team leader and the poseur-buyer, with Police Officers Wilfredo Cinco, Edgardo Palabay, Roberto Benitez and one7confidential informant as members.8 Pedrozo gave the team a marked 500-peso bill to be used as buy-bust money which was placed on top of a deck of boodle money. The team informed the Philippine Drug Enforcement Agency (PDEA) of the impending operation,9 entered the same in the blotter10 and proceeded to Bambang in G.Tuazon Street just before 12 a.m. of 18 May 2004-the appointed time and date that the confidential informant and appellant had agreed to meet. The informant joined Velasco in his car, and they awaited the arrival of appellant at the corner of G.Tuazon and Jhocson Streets.11 At around 12:30 a.m., appellant on board a car arrived at the scene and seeing the informant he approached the latter. The informant introduced Velasco to appellant and said that Velasco would like to buy one-half "bulto" of shabu. Velasco negotiated with appellant to lower the price but the latter refused. Velasco then insisted that he must first see the merchandise. Appellant went back to his car, took the item and brought it to Velasco. Velasco readily recognized the item as a plastic sachet containing a white crystalline substance. When appellant asked for payment, he seemed to have recognized Velasco's co-officer because he uttered the words, "May pulis yata." At that point, he was arrested just as he was trying to get back to his car.12

According to Velasco, he was the one who effected the arrest but it was Cinco who seized the plastic sachet from appellant. He further stated that immediately after the arrest, he and his team brought the seized item to the police headquarters and there, in his presence, Cinco marked the same with the initials "SOO." At the trial, he identified the plastic sachet as that seized from appellant as well as the marking made by Cinco on it. Furthermore, he admitted on cross-examination that there was no evidence custodian designated and that he could not remember if the seized item had been inventoried and photographed in

the presence of the accused; that Cinco put the item in his pocket after the same was recovered and did not mark it on the spot and that the markings made on the buy-bust money had not been entered in the blotter.13

The chemistry report issued at the instance of Pedrozo and signed by Forensic Chemical Officer Maritess Mariano of the PNP Crime Laboratory revealed that the specimen supposedly seized from appellant yielded positive of methylamphetamine hydrochloride content.14

Taking the stand, appellant boldly asserted that he was merely framed up by the buy-bust team, and strongly denied having transacted the alleged sale of shabu with Velasco and the confidential informant. He claimed that he was taken by Velasco and his team not on 18 May 2004 but rather on 17 May 2004 at 7:00 p.m. along Santa Teresita Street, Sampaloc, Manila;15 that he was there to see his girlfriend who was residing in that area; that when he was arrested by two men in civilian clothes, he was not committing any crime; that he asked them why they were arresting him but neither of them gave an answer and instead one of them grabbed him by his shoulder and ushered him inside a police car; that once inside the car, one of the men pulled out a gun with which he hit his neck, kicked him and uttered, "Makulit ka ha, yuko!"; that he asked them why they were doing that to him when in fact he merely told them to park their car properly on the street; that they cuffed his hands at the back and the driver, Velasco, asked if he could give them P200,000.00; that he answered he did not have that much money; that they drove the car around and told him that if he could not give them the money then he must just find for them someone who sells drugs in large-scale ("Magturo ka ng nagbebenta ng droga, iyong malakihan ha!"); that because he said he did not know anyone who was into selling drugs, he was taken to the U.N. Avenue police headquarters; that he was not detained at the headquarters but rather, he was brought to the second floor where the two arresting officers demanded P50,000.00 from him; that the demand was then reduced to P30,000.00 in exchange for the mitigation of his case.16 Olivia Ismael, another defense witness who introduced herself as a friend of appellant's girlfriend and who admitted having witnessed appellant's arrest, corroborated the material points of appellant's testimony.17

In its 23 February 2006 Decision, the RTC found appellant guilty beyond reasonable doubt of the offense charged. He was sentenced to suffer the penalty of life imprisonment, and to pay a P500,000.00 fine without subsidiary imprisonment as well as the costs.18

Appellant interposed an appeal with the Court of Appeals in which he reiterated that the prosecution was unable to establish his guilt beyond reasonable doubt in view of the failure to establish the chain of custody of the illegal drugs and that it was likewise unable to establish the consummation of the alleged sale of drugs.19 For its part, the People, through the Office of the Solicitor General (OSG), posited that the fact that all the essential elements of a consummated sale of dangerous drug had not been completely shown was immaterial because the charge involved a mere attempt or offer to sell which had been duly established by the prosecution.20 It also maintained that the chain of custody of the seized shabu had been duly established because the requirements in taking custody of seized narcotics provided for in Dangerous Drugs Board Regulation No. 1, series of 200221 admit of liberal interpretation.22

In its 4 September 2007 Decision,23 the Court of Appeals affirmed in toto the trial court's decision. Appellant's Notice of Appeal24 was approved,

and the records of the case were elevated to this Court. This Court's 24 March 2008 Resolution25 allowed the parties to file their supplemental briefs, but only appellant complied; the OSG manifested instead that there was no need for its part to file a supplemental brief as the merits of the case had already been extensively discussed in its brief before the appellate court.26

The appeal has to be granted.

In criminal prosecutions, fundamental is the requirement that the elemental acts constituting the offense be established with moral certainty as this is the critical and only requisite to a finding of guilt. In prosecutions involving narcotics, the narcotic substance itself constitutes the corpus delicti of the offense and the fact of its existence is vital to sustain a judgment of conviction beyond reasonable doubt.27 It is therefore of prime importance that in these cases, the identity of the dangerous drug be likewise established beyond reasonable doubt.28 In other words, it must be established with unwavering exactitude that the dangerous drug presented in court as evidence against the accused is the same as that seized from him in the first place. The chain of custody requirement performs this function in that it ensures that unnecessary doubts concerning the identity of the evidence are removed.29

Board Regulation No. 1, series of 2002 defines chain of custody as "the duly recorded authorized movements and custody of seized drugs or controlled chemicals or plant sources of dangerous drugs or laboratory equipment of each stage, from the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping to presentation in court for destruction." As a method of authenticating evidence, the chain of custody rule requires that the admission of the exhibit be preceded by evidence sufficient to

support a finding that the matter in question is what the proponent claims it to be.30 It would thus include testimony about every link in the chain, from the moment the item was seized to the time it is offered in court as evidence, such that every person who handled the same would admit how and from whom it was received, where it was and what happened to it while in the witness' possession, the condition in which it was received and the condition in which it was delivered to the next link in the chain. The same witnesses would then describe the precautions taken to ensure that there had been no change in the condition of the item and no opportunity for someone not in the chain to have possession of the same.31 It is from the testimony of every witness who handled the evidence from which a reliable assurance can be derived that the evidence presented in court is one and the same as that seized from the accused.

The prosecution evidence in the case at bar, however, does not suffice to afford such assurance. Of all the people who came into direct contact with the sachet of shabu purportedly seized from appellant, only Velasco was able to observe the uniqueness thereof in court. Cinco, who, according to Velasco, took initial custody of the plastic sachet at the time of arrest and who allegedly marked the same with the initials "SOO" at the police station, was not even presented in court to directly observe the uniqueness of the specimen and, more importantly, to acknowledge the marking as his own. The same is true with respect to the laboratory personnel who could have but nevertheless failed to testify on the circumstances under which he received the specimen at the laboratory for analysis and testing, as well as on the conduct of the examination which was administered on the specimen and what he did with it at the time it was in his possession and custody. Aside from that, it was not reasonably explained why these same witnesses were not

able to testify in court. While indeed the prosecution and the defense had stipulated on the qualification of the forensic chemist, dispensed with his testimony and admitted that said forensic chemist had no personal knowledge of the ultimate source of the drug submitted for examination, nevertheless, these stipulations and admission pertain only to a certain Elisa G. Reyes and not to Forensic Chemical Officer Maritess Mariano who, based on the chemistry report, was the one who examined the contents of the plastic sachet at the crime laboratory.

In view of these loopholes in the evidence adduced against appellant, it can be reasonably concluded that the prosecution was unable to establish the identity of the dangerous drug and in effect failed to obliterate the hypothesis of appellant's guiltlessness.

Be that as it may, although testimony about a perfect chain does not always have to be the standard because it is almost always impossible to obtain, an unbroken chain of custody indeed becomes indispensable and essential when the item of real evidence is a narcotic substance. A unique characteristic of narcotic substances such as shabu is that they are not distinctive and are not readily identifiable as in fact they are subject to scientific analysis to determine their composition and nature.32

And because they cannot be readily and properly distinguished visually from other substances of the same physical and/or chemical nature, they are susceptible to alteration, tampering, contamination,33

substitution and exchange-34 whether the alteration, tampering, contamination, substitution and exchange be inadvertent or otherwise not.35 It is by reason of this distinctive quality that the condition of the exhibit at the time of testing and trial is critical.36 Hence, in authenticating narcotic specimens, a standard more stringent than that applied to objects which are readily identifiable must be applied-a more exacting standard that entails a chain of custody of the item with sufficient completeness if only to render it improbable that the original item has either been exchanged with another or contaminated or tampered with.37

The Court certainly cannot reluctantly close its eyes to the possibility of substitution, alteration or contamination-whether intentional or unintentional-of narcotic substances at any of the links in the chain of custody thereof especially because practically such possibility is great where the item of real evidence is small and is similar in form to other substances to which people are familiar in their daily lives.38 Graham v. State39 in fact acknowledged this danger. In that case, a substance later shown to be heroin was excluded from the prosecution evidence because prior to examination, it was handled by two police officers who, however, did not testify in court on the condition and whereabouts of the exhibit at the time it was in their possession. The court in that case pointed out that the white powder seized could have been indeed heroin or it could have been sugar or baking powder. It thus declared that the state must be able to show by records or testimony the continuous whereabouts of the exhibit at least between the time it came into the possession of police officers until it was tested in the laboratory to determine its composition.40

Reasonable safeguards are provided for in our drugs laws to protect the identity and integrity of narcotic substances and dangerous drugs seized and/or recovered from drug offenders. Section 2141 of R.A. No. 9165 materially requires the apprehending team having initial custody and control of the drugs to, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice, and any elected public official who shall be required to sign the copies of the inventory and be given a

copy thereof. The same requirements are also found in Section 242 of its implementing rules43 as well as in Section 244 of the Dangerous Drugs Board Regulation No. 1, series of 2002.45

These guidelines, however, were not shown to have been complied with by the members of the buy-bust team, and nothing on record suggests that they had extended reasonable efforts to comply with the statutory requirements in handling the evidence. Velasco, the leader of the raiding team, himself admitted that as soon as appellant was arrested, Cinco had taken custody of the plastic sachet of shabu, placed it in his pocket and brought the same together with appellant to the police station. It was at the police station-and not at the place where the item was seized from appellant-where according to him (Velasco), Cinco had placed the initials "SOO" on the specimen. Velasco never even mentioned that the identifying mark on the specimen was placed in appellant's presence; he could not even remember whether or not the specimen had been properly inventoried and photographed at least in appellant's presence. Even more telling is the fact that, as elicited from Velasco himself during his cross-examination, no evidence custodian had been designated by the raiding team to safeguard the identity and integrity of the evidence supposedly seized from appellant.46

All these aforementioned flaws in the conduct of the post-seizure custody of the dangerous drug allegedly recovered from appellant, taken together with the failure of the key persons who handled the same to testify on the whereabouts of the exhibit before it was offered in evidence in court, militates against the prosecution's cause because it not only casts doubt on the identity of the corpus delicti but also tends to discredit, if not totally negate, the claim of regularity in the conduct of official police operation.

What we can fairly assume is that the Court of Appeals had overlooked the significance of these glaring details in the records of the case as it placed blind reliance right away on the credibility of Velasco's testimony and on the presumption of regularity and thereby it failed to properly account for the missing substantial links in the chain of custody of the evidence. In the same vein the liberality, suggested by the OSG relative to post-seizure custody of narcotics under paragraph 1 Section 2 of Board Regulation No. 1, can hardly be given merit precisely because the proviso in that section of the regulation requires that the integrity and the evidentiary value of the evidence be properly preserved by the apprehending officer/team in order that non-compliance with the post-seizure custody requirements be excused on justifiable grounds.47

It needs no elucidation that the presumption of regularity in the performance of official duty must be seen in the context of an existing rule of law or statute authorizing the performance of an act or duty or prescribing a procedure in the performance thereof. The presumption, in other words, obtains only where nothing in the records is suggestive of the fact that the law enforcers involved deviated from the standard conduct of official duty as provided for in the law. Otherwise, where the official act in question is irregular on its face, an adverse presumption arises as a matter of course.48 There is indeed merit in the contention that where no ill motives to make false charges was successfully attributed to the members of the buy-bust team, the presumption prevails that said police operatives had regularly performed their duty, but the theory is correct only where there is no showing that the conduct of police duty was irregular. People v. Dulay49 and People v. Ganenas50

in fact both suggest that the presumption of regularity is disputed where there is deviation from the regular performance of duty. Suffice it to say at this point that the presumption of regularity in the conduct of police duty is merely just that-a mere presumption disputable by contrary proof

and which when challenged by the evidence cannot be regarded as binding truth.51

It must be emphasized at this juncture that what can reasonably be presumed based on the records of this case is that Velasco is aware of his duties and responsibilities as an agent of the government in its anti-narcotics campaign. A member of the anti-narcotics division of the police since 1997,52 Velasco can be reasonably presumed to be adept in and mindful of the proper procedure in apprehending drug offenders, securing and taking custody of the evidence obtained in police operations such as this one and preserving the integrity of the evidence by protecting the chain of custody thereof.53 However, for reasons as obvious as intimated above, even this presumption is unworthy of credit.

All told, in view of the deviation by the buy-bust team from the mandated conduct of taking post-seizure custody of the dangerous drug in this case, there is no way to presume that the members thereof had performed their duties regularly. Even granting that we must blindly rely on the credibility of Velasco's testimony, still, the prosecution evidence would fall short of satisfying the quantum of evidence required to arrive at a finding of guilt beyond reasonable doubt inasmuch as the evidence chain failed to solidly connect appellant with the seized drug in a way that would establish that the specimen is one and the same as that seized in the first place and offered in court as evidence. The Court cannot indulge in the presumption of regularity of official duty if only to obliterate the obvious infirmity of the evidence advanced to support appellant's conviction. In Mallillin v. People,54 we categorically declared that the failure of the prosecution to offer in court the testimony of key witnesses for the basic purpose of establishing a sufficiently complete chain of custody of a specimen of shabu and the irregularity which characterized the handling of the evidence before the same was finally offered in court, materially conflict with every proposition as to the culpability of the accused. For the same plain but consequential reason, we will not hesitate to reverse the judgment of conviction in the present appeal.

One final word. In no uncertain terms must it be stressed that basic and elementary is the presupposition that the burden of proving the guilt of an accused rests on the prosecution which must draw strength from its own evidence and not from the weakness of the defense. The rule, in a constitutional system like ours, is invariable regardless of the reputation of the accused because the law presumes his innocence until the contrary is shown. In dubio pro reo. When moral certainty as to culpability hangs in the balance, acquittal on reasonable doubt inevitably becomes a matter of right.55

WHEREFORE, the assailed Decision of the Court of Appeals in CA-G.R. CR.-H.C. No. 02158 affirming the judgment of conviction rendered by the Regional Trial Court of Manila, Branch 2, is REVERSED and SET ASIDE. Appellant Samuel Obmiranis y Oreta is ACQUITTED on reasonable doubt and is thus accordingly ordered released immediately from confinement, unless he is lawfully confined for another offense.

The Director of the Bureau of Corrections is directed to implement this Decision and to report to this Court his action hereon within five (5) days from receipt hereof.

SO ORDERED.

G.R. No. 182348             November 20, 2008

PEOPLE OF THE PHILIPPINES, plaintiff-appellee vs.CARLOS DELA CRUZ, accused-appellant.

D E C I S I O N

VELASCO, JR., J.:

This is an appeal from the November 29, 2007 Decision of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 02286 entitled People of the Philippines v. Carlos Dela Cruz which affirmed the September 16, 2005 Decision of the Regional Trial Court (RTC), Branch 77 in San Mateo, Rizal in Criminal Case Nos. 6517 (Illegal Possession of Firearm and Ammunition) and 6518 (Possession of Dangerous Drug). The RTC found accused- appellant Carlos Dela Cruz guilty beyond reasonable doubt of violation of Section 11(2) of Republic Act No. (RA) 9165 or The Comprehensive Dangerous Drugs Act of 2002.

The Facts

On November 15, 2002, charges against accused-appellant were made before the RTC. The Informations read as follows:

Criminal Case No. 6517

That, on or about the 20th day of October 2002, in the Municipality of San Mateo, Province of Rizal, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, being then a private citizen, without any lawful authority, did then and there willfully, unlawfully, and knowingly have in his possession and under his custody and control One (1) Gauge Shotgun marked ARMSCOR with Serial No. 1108533 loaded with four (4) live ammunition, which are high powered firearm and ammunition respectively, without first securing the necessary license to possess or permit to carry said firearm and ammunition from the proper authorities.

Criminal Case No. 6518

That on or about the 20th day of October 2002, in the Municipality of San Mateo, Province of Rizal, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, not being authorized by law, did then and there willfully, unlawfully and knowingly have in his possession, direct custody and control one (1) heat-sealed transparent plastic bag weighing 49.84 grams of white crystalline substance, which gave positive results for Methamphetamine Hydrochloride, a dangerous drug.1

Accused-appellant entered a not guilty plea and trial ensued.

The facts, according to the prosecution, showed that in the morning of October 20, 2002, an informant tipped off the Drug Enforcement Unit of the Marikina Police Station that wanted drug pusher Wifredo Loilo alias "Boy Bicol" was at his nipa hut hideout in San Mateo, Rizal. A team was

organized to arrest Boy Bicol. Once there, they saw Boy Bicol by a table talking with accused-appellant. They shouted "Boy Bicol sumuko ka na may warrant of arrest ka. (Surrender yourself Boy Bicol you have a warrant of arrest.)" Upon hearing this, Boy Bicol engaged them in a shootout and was fatally shot. Accused-appellant was seen holding a shotgun through a window. He dropped his shotgun when a police officer pointed his firearm at him. The team entered the nipa hut and apprehended accused-appellant. They saw a plastic bag of suspected shabu, a digital weighing scale, drug paraphernalia, ammunition, and magazines lying on the table. PO1 Calanoga, Jr. put the markings "CVDC," the initials of accused-appellant, on the bag containing the seized drug.

Accused-appellant was subsequently arrested. The substance seized from the hideout was sent to the Philippine National Police crime laboratory for examination and tested positive for methamphetamine hydrochloride or shabu. He was thus separately indicted for violation of RA 9165 and for illegal possession of firearm.

According to the defense, accused-appellant was at Boy Bicol's house having been asked to do a welding job for Boy Bicol's motorcycle. While accused-appellant was there, persons who identified themselves as police officers approached the place, prompting accused-appellant to scamper away. He lied face down when gunshots rang. The buy-bust team then helped him get up. He saw the police officers searching the premises and finding shabu and firearms, which were on top of a table or drawer.2 When he asked the reason for his apprehension, he was told that it was because he was a companion of Boy Bicol. He denied under oath that the gun and drugs seized were found in his possession and testified that he was only invited by Boy Bicol to get the motorcycle from his house.3

The RTC acquitted accused-appellant of illegal possession of firearm and ammunition but convicted him of possession of dangerous drugs. The dispositive portion of the RTC Decision reads:

WHEREFORE, the Court based on insufficiency of evidence hereby ACQUITS accused CARLOS DELA CRUZ Y VICTORINO in Criminal Case No. 6517 for violation of P.D. 1866 as amended by RA 8294.

In Criminal Case No. 6518 for Possession of Dangerous Drug under Section 11, 2nd paragraph of Republic Act 9165, the Court finds said accused CARLOS DELA CRUZ Y VICTORINO, GUILTY beyond reasonable doubt and is hereby sentenced to Life Imprisonment and to Pay a Fine of FOUR HUNDRED THOUSAND PESOS (P400,000.00).

SO ORDERED.4

On December 7, 2005, accused-appellant filed a Notice of Appeal of the RTC Decision.

In his appeal to the CA, accused-appellant claimed that: (1) the version of the prosecution should not have been given full credence; (2) the prosecution failed to prove beyond reasonable doubt that he was guilty of possession of an illegal drug; (3) his arrest was patently illegal; and (4) the prosecution failed to establish the chain of custody of the illegal drug allegedly in his possession.

The CA sustained accused-appellant's conviction.5 It pointed out that accused-appellant was positively identified by prosecution witnesses, rendering his uncorroborated denial and allegation of frame-up weak. As to accused-appellant's alleged illegal arrest, the CA held that he is deemed to have waived his objection when he entered his plea, applied for bail, and actively participated in the trial without questioning such arrest.

On the supposedly broken chain of custody of the illegal drug, the appellate court held that accused-appellant's claim is unpersuasive absent any evidence showing that the plastic sachet of shabu had been tampered or meddled with.

On December 20, 2007, accused-appellant filed his Notice of Appeal of the CA Decision.

On June 25, 2008, this Court required the parties to submit supplemental briefs if they so desired. The parties later signified their willingness to submit the case on the basis of the records already with the Court.

Accused-appellant presents the following issues before us:

I

THE COURT A QUO GRAVELY ERRED IN GIVING FULL CREDENCE TO THE VERSION OF THE PROSECUTION

II

THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY OF VIOLATION OF SECTION 11, ARTICLE II, RA 9165 DESPITE THE FAILURE OF THE PROSECUTION TO PROVE THE COMMISSION OF THE OFFENSE CHARGED BEYOND REASONABLE DOUBT

III

THE COURT A QUO GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT OF THE OFFENSE CHARGED DESPITE THE PATENT ILLEGALITY OF HIS ARREST

IV

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT OF VIOLATION OF SECTION 11, ARTICLE II, RA 9165 DESPITE THE FAILURE OF THE PROSECUTION TO ESTABLISH THE CHAIN OF CUSTODY OF THE ILLEGAL DRUG ALLEGEDLY FOUND IN HIS POSSESSION

Accused-appellant claims that the presence of all the elements of the offense of possession of dangerous drug was not proved beyond reasonable doubt since both actual and constructive possessions were not proved. He asserts that the shabu was not found in his actual possession, for which reason the prosecution was required to establish that he had constructive possession over the shabu. He maintains that as he had no control and dominion over the drug or over the place where it was found, the prosecution likewise failed to prove constructive possession.

The Court's Ruling

The appeal has merit.

The elements in illegal possession of dangerous drug are: (1) the accused is in possession of an item or object which is identified to be a prohibited drug; (2) such possession is not authorized by law; and (3) the accused freely and consciously possessed the said drug.6 On the third element, we have held that the possession must be with knowledge of the accused or that animus possidendi existed with the possession or control of said articles.7 Considering that as to this knowledge, a person's mental state of awareness of a fact is involved, we have ruled that:

Since courts cannot penetrate the mind of an accused and thereafter state its perceptions with certainty, resort to other evidence is necessary. Animus possidendi, as a state of mind, may be determined on a case-to-case basis by taking into consideration the prior or contemporaneous acts of the accused, as well as the surrounding circumstances. Its existence may and usually must be inferred from the attendant events in each particular case.8

The prior or contemporaneous acts of accused-appellant show that: he was inside the nipa hut at the time the buy-bust operation was taking place; he was talking to Boy Bicol inside the nipa hut; he was seen holding a shotgun; when PO1 Calanoga, Jr. pointed his firearm at accused-appellant, the latter dropped his shotgun; and when apprehended, he was in a room which had the seized shabu, digital weighing scale, drug paraphernalia, ammunition, and magazines. Accused-appellant later admitted that he knew what the content of the seized plastic bag was.9

Given the circumstances, we find that the prosecution failed to establish possession of the shabu, whether in its actual or constructive sense, on the part of accused-appellant.

The two buy-bust team members corroborated each other's testimonies on how they saw Boy Bicol talking to accused-appellant by a table inside the nipa hut. That table, they testified, was the same table where they saw the shabu once inside the nipa hut. This fact was used by the prosecution to show that accused-appellant exercised dominion and control over the shabu on the table. We, however, find this too broad an application of the concept of constructive possession.

In People v. Torres,10 we held there was constructive possession of prohibited drugs even when the accused was not home when the prohibited drugs were found in the master's bedroom of his house.

In People v. Tira,11 we sustained the conviction of the accused husband and wife for illegal possession of dangerous drugs. Their residence was searched and their bed was found to be concealing illegal drugs underneath. We held that the wife cannot feign ignorance of the drugs' existence as she had full access to the room, including the space under the bed.

In Abuan v. People,12 we affirmed the finding that the accused was in constructive possession of prohibited drugs which had been found in the drawer located in her bedroom.

In all these cases, the accused was held to be in constructive possession of illegal drugs since they were shown to enjoy dominion and control over the premises where these drugs were found.

In the instant case, however, there is no question that accused-appellant was not the owner of the nipa hut that was subject of the buy-bust operation. He did not have dominion or control over the nipa hut. Neither was accused-appellant a tenant or occupant of the nipa hut, a fact not disputed by the prosecution. The target of the operation was Boy Bicol. Accused-appellant was merely a guest of Boy Bicol. But in spite of the lack of evidence pinning accused-appellant to illegal possession of drugs, the trial court declared the following:

It cannot be denied that when the accused was talking with Boy Bicol he knew that the shabu was on the table with other items that were confiscated by the police operatives. The court [surmises] that the accused and boy Bicol were members of a gang hiding in that nipa hut where they were caught red-handed with prohibited items and dangerous [drugs].13

The trial court cannot assume, based on the prosecution's evidence, that accused-appellant was part of a gang dealing in illegal activities. Apart from his presence in Boy Bicol's nipa hut, the prosecution was not able to show his participation in any drug-dealing. He was not even in possession of drugs in his person. He was merely found inside a room with shabu, not as the room's owner or occupant but as a guest. While he allegedly pointed a firearm at the buy-bust team, the prosecution curiously failed to produce the firearm that accused-appellant supposedly used.

The prosecution in this case clearly failed to show all the elements of the crime absent a showing of either actual or constructive possession by the accused-appellant.

Since accused-appellant was not in possession of the illegal drugs in Boy Bicol's nipa hut, his subsequent arrest was also invalid. Rule 113 of the Rules on Criminal Procedure on warrantless arrest provides:

Sec. 5. Arrest without warrant; when lawful.--A peace officer or a private person may, without a warrant, arrest a person:

a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;

b) When an offense has just been committed, and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and

c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

The warrantless arrest of accused-appellant was effected under Sec. 5(a), arrest of a suspect in flagrante delicto. For this type of warrantless arrest to be valid, two requisites must concur: (1) the person to be arrested must execute an overt act indicating that he has just committed, is actually committing, or is attempting to commit a crime; and (2) such overt act is done in the presence or within the view of the arresting officer.14

Accused-appellant's act of pointing a firearm at the buy-bust team would have been sufficient basis for his arrest in flagrante delicto; however, the prosecution was not able to adequately prove that accused-appellant was committing an offense. Although accused-appellant merely denied possessing the firearm, the prosecution's charge was weak absent the presentation of the alleged firearm. He was eventually acquitted by the trial court because of this gaffe. His arrest, independent of the buy-bust operation targeting Boy Bicol, was therefore not lawful as he was not proved to be committing any offense.

In sum, we find that there is insufficient evidence to show accused-appellant's guilt beyond reasonable doubt. Having ruled on the lack of material or constructive possession by accused-appellant of the seized shabu and his succeeding illegal arrest, we deem it unnecessary to deal with the other issue raised.

WHEREFORE, the appeal is GRANTED. The CA Decision dated November 29, 2007 in CA-G.R. CR-H.C. No. 02286 is REVERSED and SET ASIDE. Accused-appellant Carlos Dela Cruz is ACQUITTED of violation of Sec. 11(2) of RA 9165 in Criminal Case No. 6518 of the RTC, Branch 77 in San Mateo, Rizal.

SO ORDERED.

G.R. No. 182347              October 17, 2008

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.EMILIO RIVERA y CABLANG alias 'BOY', accused-appellant.

DECISION

CHICO-NAZARIO, J.:

For Review under Rule 45 of the Revised Rules of Court is the Decision1 dated 27 November 2007 of the Court of Appeals in CA-G.R. CR-H.C. No. 02175 entitled, People of the Philippines v. Emilio

Rivera y Cablang alias ‘Boy,’ affirming the Decision2 rendered by the Regional Trial Court (RTC) of Malabon City, Branch 72, in Criminal Case No. 27778-MN, finding accused-appellant Emilio Rivera y Cablang alias ‘Boy’ guilty beyond reasonable doubt of violating Section 5 (Selling of Dangerous Drugs), Article II of Republic Act No. 9165, as amended, otherwise known as the Comprehensive Dangerous Drugs Act of 2002.

The following are the factual antecedents:

On 22 October 2002, accused-appellant was charged before the RTC of Malabon City, with violation of Section 5,3 Article II of Republic Act No. 9165 in Criminal Case No. 27778-MN. The Information contained the following allegations:

That on or about the 21st day of October 2002 in the City of Malabon, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, being a private person and without authority of law, did, then and there, willfully, unlawfully and feloniously sell and deliver for consideration in the amount of P100.00, to poseur-buyer One (1) heat-sealed transparent plastic sachet containing white crystalline substance containing net weight 0.25 gram which substance when subjected to chemistry examination gave positive result for Methylamphetamine Hydrochloride otherwise known [as] "shabu" a dangerous drug.4

When arraigned on 8 November 2002, accused-appellant, assisted by a counsel de officio, entered a plea of ‘NOT GUILTY.’5

The prosecution’s version is based mainly on the testimony of its lone witness, Police Officer (PO) 2 Allan Llantino, the designated poseur-buyer.

At around 3:00 o’clock in the afternoon of 21 October 2002, a confidential informer personally appeared at their police station. Confidential information was relayed to PO2 Allan Llantino of the District Drug Enforcement Unit, Northern Police District Office, Larangay, Caloocan City that one alias ‘Boy’ was selling shabu. Said information was then relayed to the Chief of the Station Police, Superintendent Reynaldo B. Orante, who immediately ordered PO2 Llantino to organize a team to conduct a buy-bust operation.

At around 4:00 o’clock in the afternoon of the same day, a team composed of Police Inspector Rodrigo Soriano, PO2 Henry Pineda, PO2 Joel Borda, PO2 Allan Llantino, and PO1 Ronald Mesina, was dispatched at Pitong Gatang, Dampalit, Malabon City, to conduct a buy-bust operation against accused-appellant, then known to them only as alias Boy. PO2 Llantino was designated as poseur-buyer while the rest of the team served as his back-up. One marked one hundred peso bill bearing Serial No. LS 034778 was prepared to be used in the operation.6

Thereafter, PO2 Llantino, together with the confidential informant, went ahead to the target area at around 5:30 o’clock in the afternoon of that day, and while walking, they saw accused-appellant alias Boy standing. They then approached accused-appellant and the confidential informant introduced PO2 Llantino as a friend. After the introduction, appellant asked PO2 Llantino if he would buy shabu. He replied positively and told accused-appellant "piso," meaning one hundred pesos. PO2 Llantino handed the money to accused-appellant and the latter took from his

right pocket one plastic sachet and handed it to PO2 Llantino. After the accused-appellant handed the plastic sachet, PO2 Llantino raised his right hand as the pre-arranged signal to his companions. Thereafter, his companions (P/Insp. Rodrigo Soriano, PO2 Henry Pineda, PO2 Joel Borda, and PO1 Ronald Mesina) proceeded to where PO2 Llantino was.

Accused-appellant was arrested by PO2 Llantino with the help of his companions, specifically PO2 Borda and PO2 Pineda, and was brought to the Caloocan Police Station. PO2 Llantino turned over the confiscated plastic sachet containing the white crystalline substance to the investigator who put his markings "BB" (meaning buy-bust) and made a laboratory request.7 The seized item and request for laboratory examination were delivered8 by PO1 Mesina to the Northern Police District Office Crime Laboratory Office (NPDO-CLO) for analysis based on the request for laboratory examination signed by District Drug Enforcement Group (DDEG) NPD Chief Reynaldo B. Orante.9 During the operation, the team recovered from him one (1) piece of One Hundred Peso bearing Serial Nos. HL 03474810 and with markings AL representing the initials of PO2 Allan Llantino, as the buy-bust money used in the operation.

The defense presented a counterstatement of facts, relying on the testimony of accused-appellant Emilio Rivera as witness.

Accused-appellant denied the accusations against him. He testified that on 21 October 2002, at around 5:00 o’clock in the afternoon, he was cleaning ‘dampalit weeds’ at the vacant lot near his house when he heard somebody knocking at the gate of said lot. The caretaker of the lot, Alberto Cruz, Jr., opened the gate. Two (2) persons entered and introduced themselves as police officers. They asked the accused if he was ‘Boy Anggo,’ to which he replied in the affirmative. The police officers then drew guns and poked them at him. They frisked him but when nothing was found in his person, they held and dragged him to a waiting vehicle. He resisted and asked them why they were taking him. They replied, ‘matikas ka.’ Accused-appellant was then brought to the Larangay Police Headquarters. It was only there where he was informed of the charges against him.

Accused-appellant identified the two (2) police officers who arrested him as Borda and Pineda. He became aware of their names on the day following his arrest when he saw them in uniform and with nameplates. He denied having been arrested by PO2 Llantino and said he only saw him during the trial.

Another defense witness, Alberto Cruz, Jr., was called to the stand but his presentation was dispensed with after the prosecution and the defense admitted that he will merely corroborate the testimony of the accused.

On rebuttal, PO2 Llantino was recalled but he was not presented anymore because the prosecution and the defense admitted that he will just insist that he will merely deny the claims of the defense witnesses.

Alberto Cruz, Jr. was recalled on sur-rebuttal but was not presented anymore because the parties admitted that he will just insist that his version is the correct one and will merely deny the admitted rebuttal testimony of PO2 Llantino.

The plastic sachet containing the white crystalline substance allegedly recovered from accused-appellant was submitted to the NPDO-CLO for chemical analysis. The Request for Laboratory Examination11 indicated that the following evidence was submitted:

One (1) pc. of small heat sealed transparent plastic sachet containing white crystalline substance believed to be Methamphetamine Hcl or shabu with marking as "ERC-BB"

Forensic Chemist Albert S. Arturo examined the plastic sachet containing the white crystalline substance. After conducting a qualitative examination on the above-said specimen, the substance weighing 0.25 gram was found positive for methylamphetamine hydrochloride, a dangerous drug, as contained in Physical Science Report12 No. D-1162-02 dated 22 October 2002.

On 2 April 2004, the RTC of Malabon City Branch 72, convicted accused-appellant and found him guilty beyond reasonable doubt in Criminal Case No. 27778-MN. The dispositive portion of the Decision13

reads:

WHEREFORE, premises considered, judgment is hereby rendered finding accused Emilio Rivera y Cablang @ Boy guilty beyond reasonable doubt of the crime charged against him in this case. Pursuant to Section 5, Art. II, RA 9165, he is hereby sentenced to Life Imprisonment and to pay a fine of P500,000.00, and to pay the costs.

The shabu subject of this case is forfeited in favor of the government to be disposed of under rules governing the same. OIC-Branch Clerk of Court Enriqueta A. Marquez is hereby enjoined to immediately turn the same over to the proper authority for final disposition.

On 25 May 2004, accused-appellant filed a Notice of Appeal14 to the Court of Appeals, claiming that the prosecution failed to overthrow the presumption of innocence on the ground that the trial court not only relied heavily on the testimony of a lone witness but also failed to follow the required procedure in the custody and disposition of confiscated dangerous drugs. The case was docketed as CA-G.R. CR-H.C. No. 02175.

On 27 November 2007, the Court of Appeals affirmed the decision of the RTC, viz.:

WHEREFORE, premises considered, the Decision of the Regional Trial Court of Malabon City, Branch 72, in Criminal Case No. 27778-MN, dated April 2, 2004, promulgated on May 17, 2004, finding accused-appellant guilty beyond reasonable doubt of violating Sec. 5, Art. II of Republic Act No. 9165 (Comprehensive Dangerous Drugs Act of 2002), as amended, sentencing him to suffer the penalty of life imprisonment and ordering him to pay a fine of Five Hundred Thousand (P500,000.00) Pesos is hereby AFFIRMED and UPHELD.15

Accused-appellant elevated the case to this Court via Notice of Appeal.16 In its Resolution17 dated 16 June 2008, this Court resolved to notify the parties that they may file their respective supplemental briefs, if they so desire, within thirty (30) days from notice.

To avoid repeating previous arguments, the defense and the prosecution adopted their respective appellant’s18 and appellee’s briefs,19 instead of filing supplemental briefs.

The defense raises a singular issue –

THE COURT A QUO GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT OF THE CRIME CHARGED DESPITE THE FAILURE OF THE PROSECUTION TO OVERTHROW THE PRESUMPTION OF INNOCENCE IN HIS FAVOR.20

The defense focused on several factors to cast doubt on the allegations against accused. First, in convicting the accused, the trial court heavily relied on the testimony of the lone prosecution witness, PO2 Allan Llantino, who claimed he had companions at that time but none of them corroborated his version. Second, the police officers failed to follow the procedure outlined in paragraph 1, Section 2121 of Republic Act No. 9165 on the seizure and custody of the suspected dangerous drugs as nothing in the records would show that immediately after the seizure, the police officers conducted a physical inventory and photographed the same. Thus, the defense contends there is a gap in the chain of custody and a clear doubt on whether the specimen examined by the chemist and eventually presented in court were the same specimen allegedly recovered from accused-appellant.

The Office of the Solicitor General (OSG), on the other hand, maintains that the presumption of regularity in the performance of official functions was not rebutted by accused-appellant. Insisting that accused-appellant could not even identify or impute any ill-motive on the part of the buy-bust team, the OSG argues that unless there is clear and convincing evidence that the members of the buy-bust team were inspired by any improper motive or were not properly performing their duty, their testimonies on the operation deserve full faith and credit. Moreover, the OSG maintains that the defense of denial cannot prevail over the positive identification by PO2 Llantino of accused-appellant as the person who sold the methylamphetamine hydrochloride (shabu) to the poseur-buyer. On the contention that the confiscated item was not marked immediately after the seizure, the OSG explains that the procedure regarding the seizure and custody of confiscated items suspected to be dangerous drugs or regulated drugs is not absolute, provided that the integrity and evidentiary value of the seized items are properly preserved by the apprehending officers.

We sustain accused-appellant’s conviction.

It is but fundamental that no less than a painstaking review of the case be conducted by this Court considering that what is at stake is the liberty of accused-appellant. We, however, find no cogent reason to warrant the acquittal of accused-appellant in this case and reversal of the findings of the trial and appellate courts. The case records support the conclusion that prosecution was able to discharge its burden of establishing with moral certainty the presence of all the elements necessary for the conviction of herein accused-appellant for the illegal sale of shabu.

We discuss the arguments raised by the defense in seriatim.

This Court takes pride in upholding a most fundamental constitutional right which is the right of an accused in criminal prosecutions to be

presumed innocent until proven guilty beyond reasonable doubt.22 Thus, in order to justify the conviction of an accused, the prosecution must adduce that quantum of evidence sufficient to overcome this constitutional presumption of innocence.

It is well-established that findings of trial courts which are factual in nature and which involve the credibility of witnesses are accorded respect when no glaring errors, gross misapprehension of facts and speculative, arbitrary and unsupported conclusions can be gathered from such findings. The reason for this is that the trial court is in a better position to decide the credibility of witnesses, having heard their testimonies and observed their deportment and manner of testifying during trial. This rule finds an even more stringent application where said findings are sustained by the Court of Appeals as in the case at bar.23

In prosecutions for illegal sale of prohibited or dangerous drugs, what determines if there was a sale of dangerous drugs is proof of the concurrence of all the elements of the offense. Conviction is proper if the following elements concur:

(1) the identity of the buyer and the seller, the object, and the consideration; and

(2) the delivery of the thing sold and the payment therefor.24

What is material is proof that the transaction or sale actually took place, coupled with the presentation in court of the prohibited or regulated drug or the corpus delicti as evidence.25

Accused-appellant was arrested in flagrante delicto in a buy-bust operation which is a form of entrapment which in recent years has been accepted to be a valid and effective mode of apprehending drug pushers. In a buy-bust operation, ways and means are employed for the purpose of trapping and capturing lawbreakers in the execution of their plan.26 The idea to commit a crime originates from the offender, without anybody inducing or prodding him to commit the offense.27 If carried out with due regard for constitutional and legal safeguards, a buy-bust operation deserves judicial sanction.

The defense stresses the fact that the trial court and the appellate court relied heavily on the testimony of a sole witness PO2 Llantino.

The non-presentation as witnesses of other persons such as the other police officers forming a buy-bust team is not a crucial point against the prosecution28 since the matter of presentation of witnesses by the prosecution is not for the court to decide. It is the prosecution which has the discretion as to how to present its case and it has the right to choose whom it wishes to present as witnesses.29 Moreover, the testimony of a single prosecution witness, if credible and positive and satisfies the court as to the guilt of the accused beyond reasonable doubt,30 is enough to sustain a conviction.

Truth is established not by the quantity of witnesses but by the quality of their testimonies.31 The testimony only needs to establish sufficiently: (1) the identity of the buyer, seller, object and consideration; and (2) the delivery of the thing sold and the payment thereof.

Being the poseur-buyer, PO2 Llantino is in the best position to testify on the transaction between him and accused-appellant concerning the sale of the dangerous drug.

As recalled by PO2 Llantino, the designated poseur-buyer, the events that led to the apprehension of accused-appellant are as follows:

Q: Policeman Llantino, do you remember having conducted buy bust operation sometime on October 21, 2002?

A: Yes, sir.

Q: And what prompted you to conduct buy bust operation in that particular date?

A: Our confidential informer personally appeared to our office, sir.

Q: And what information did he give to your office?

A: An information regarding the selling of shabu, sir.

Q: By whom.

A: Against alias Boy.

Q: And the full name of this person was allegedly was not mentioned by the confidential informer?

A: Yes, sir.

Q: And what did you do after having received that information?

A: We relayed it to our chief, sir.

Q: What did he do?

A: He ordered us to compose a team.

Q: How many of you?

A: Eight, sir.

Q: What did you do with the preparation of the operation?

A: Our chief designated me as the poseur buyer.

Q: And how much money will be using to buy from the suspect?

A: P100.00, one piece only.

Q: You said you are supposed to act as the poseur buyer, and after having received the money, what did you do with the money?

A: I placed markings and have it xerox (sic), sir.

Q: Can you remember what was your marking placed on the money?

A: It was marked AL, sir.

Q: And what stands (sic) that for?

A: Allan Llantino, sir.

Q: It has no marking on the face of the money?

A: Yes, sir.

Q: But the serial number, was that indicated in the original?

A: Yes, sir.

Q: Now, how did you reach the place where the accused sell shabu?

A: At Pitong Gatang, Dampalit, sir.

Q: How did you reach the place?

A: We used private vehicle, sir.

Q: You were boarded in?

A: Two vehicles, sir.

Q: And when you reached the place, what did you do next?

A: We parked our vehicle 50 meters away from the place.

Q: Was that daytime or nighttime?

A: Afternoon, sir.

Q: And were you in uniform?

A: Civilian clothes, sir.

Q: And who went ahead of the target place?

A: Me, sir.

Q: What happened when you went ahead together with your confidential informer?

A: While walking we saw alias Boy standing and then we approached him.

Q: And what happened when you approached him?

A: We introduced as a friend, sir.

Q: And after the introduction, what happened next?

A: I was asked if I will buy shabu, sir.

Q: And what is your answer?

A: I told him yes "piso."

Q: What does amounts (sic) "piso"?

A: P100.00, sir.

Q: And how much are you expecting from alias Boy in exchange of the P100.00?

A: One plastic sachet, sir.

Q: Now, who gave the money to alias Boy?

A: I handed to him the money, sir.

Q: After you handed the money to him, what did he do next?

A: He took from his right pocket one plastic sachet and handed to me, sir.32

PO2 Llantino’s testimony proved all the elements of the crime. He testified vividly on the buy-bust operation. He positively identified accused-appellant as the seller of the shabu. Per Report No. D-1162-02 of Forensic Chemist Albert S. Arturo, the substance, weighing 0.25 gram, which was bought from accused-appellant in consideration of P100.00, was examined and found to be methylamphetamine

hydrochloride.33 He testified that he was the one who prepared the marked money,34 acted as the poseur-buyer,35 arrested the accused,36

and turned-over the suspected shabu to the investigator.37 PO2 Llantino testified in a frank, spontaneous, straightforward and categorical manner and his credibility was not crumpled on cross-examination by defense counsel. His testimony was able to present a complete picture detailing the buy-bust operation – from the initial contact between the designated poseur-buyer PO2 Llantino and the pusher accused-appellant, the offer to purchase, the promise or payment of the consideration until the consummation of the sale by the delivery of the illegal drug subject of the sale. The shabu subject of the sale was brought to and properly identified in court.

At any rate, accused-appellant’s contention that the testimony of PO2 Llantino was uncorroborated is not entirely accurate. The records indicate that the defense called one of the members of the buy-bust team, PO2 Joel Borda, to the witness stand as a hostile witness. He testified that PO2 Llantino acted as their poseur-buyer and was the one who personally arrested accused-appellant. He further narrated that he and the other members of the buy-bust team merely helped PO2 Llantino arrest appellant when he gave the pre-arranged signal.38

Moreover, the chain of custody is unbroken and thus the integrity and evidentiary value of the seized items have been preserved.

PO2 Llantino testified on the custody of the shabu, to wit:

Fiscal: How about the suspected shabu, what did you do with the shabu?

A: I turned it over to the investigator.

Fiscal: Do you know what the investigator did to the plastic sachet of shabu?

A: He just put his markings and he made a laboratory request.

Fiscal: Do you know the result?

A: Positive.39

The procedure to be followed in the custody and handling of seized dangerous drugs is outlined in Section 21, paragraph 1, Article II of Republic Act No. 9165 which stipulates:

(1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof.

The same is implemented by Section 21(a), Article II of the Implementing Rules and Regulations of Republic Act No. 9165, viz.:

(a) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof: Provided, further, that non-compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items. (Emphasis ours.)

The failure of the prosecution to show that the police officers conducted the required physical inventory and photograph of the evidence confiscated pursuant to said guidelines, is not fatal and does not automatically render accused-appellant’s arrest illegal or the items seized/confiscated from him inadmissible. Indeed, the implementing rules offer some flexibility when a proviso added that ‘non-compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items.’ The same provision clearly states as well, that it must still be shown that there exists justifiable grounds and proof that the integrity and evidentiary value of the evidence have been preserved.

This Court can no longer find out what justifiable reasons existed, if any, since the defense did not raise this issue during trial.40 Be that as it may, this Court has explained in People v. Del Monte41 that what is of utmost importance is the preservation of the integrity and evidentiary value of the seized items, as the same would be utilized in the determination of the guilt or innocence of the accused. The existence of the dangerous drug is a condition sine qua non for conviction for the illegal sale of dangerous drugs. The dangerous drug itself constitutes the very corpus delicti of the crime and the fact of its existence is vital to a judgment of conviction.42 Thus, it is essential that the identity of the prohibited drug be established beyond doubt. The chain of custody requirement performs the function of ensuring that the integrity and evidentiary value of the seized items are preserved, so much so that unnecessary doubts as to the identity of the evidence are removed.

To be admissible, the prosecution must show by records or testimony, the continuous whereabouts of the exhibit at least between the time it came into possession of the police officers and until it was tested in the laboratory to determine its composition43 up to the time it was offered in evidence.

In the case at bar, the totality of the testimonial, documentary, and object evidence adequately supports not only the findings that a valid buy-bust operation took place but accounted for an unbroken chain of custody of the seized evidence as well.

A certified true photocopy of the NPDO-DDEG logbook indicated that a team was officially dispatched at 4:00 o’clock in the afternoon for a buy-bust operation at Pitong Gatang, Dampalit, in Malabon City, and brought with them one (1) piece of one hundred peso bill with Serial Number HL

034748 to be used as buy-bust money.44 The testimony of PO2 Llantino established that the buy-bust operation occurred between 4:00 o’clock to 5:30 o’clock in the afternoon of 21 October 2002. Accused-appellant was brought to the Larangay police station at around 7:00 o’clock in the evening.45 PO2 Llantino testified that the seized evidence was turned over to the police investigator46 who put his markings "ERC-BB." DDEG Chief Reynaldo Orante made the request for laboratory examination dated 21 October 2002.47 The request, together with the seized item (one sachet) was brought to the NPDO-CLO at 11:30 o’clock in the evening that same night and received by Forensic Chemist Albert S. Arturo at 11:35 o’clock in the evening.48 The parties stipulated on the qualification and competence of the Forensic Chemist of the PNP Crime Laboratory. It was stipulated that the Forensic Chemist was the one who prepared the report on the examination of the specimen submitted and that he can identify the specimen.49 While the Court notes that there is a slight discrepancy in the Serial Numbers of the buy-bust money as stated in the affidavit50 of PO2 Llantino vis-a-vis the Serial Numbers reflected in the NPDO-DDEG Police Blotter51 and the actual52 buy-bust money presented. This minor inconsistency does not detract from the veracity and weight of the prosecution evidence. It is enough that the prosecution proved that money was paid to accused-appellant in consideration of which he sold and delivered the shabu. Moreover, any discrepancy on the the buy-bust money was resolved on the categorical statement of PO2 Llantino that he put the markings AL on the buy-bust money, corresponding to his initials Allan Llantino.

Thus, beyond his bare allegations, accused-appellant has not shown any evidence that will destroy the identity of the sachet.

Accused-appellant’s allegation that he is a victim of a frame-up, which has been held as a shop-worn defense of those accused in drug-related cases, is viewed by the Court with disfavor. Like the defense of alibi, frame-up is an allegation that can easily be concocted.53 For this claim to prosper, the defense must adduce clear and convincing evidence, which accused-appellant failed to do. He did not adduce any evidence showing that the police officers were maliciously motivated. His admission that he had not met nor encountered any of the police officers involved in the buy-bust operation prior to his arrest further bolsters the absence of such motive. Moreover, he testified that he could not think of any reason why the police officers would falsely impute such a serious crime against him.

Absent any proof of motive to falsely accused him of such a grave offense, the presumption of regularity in the performance of official duty and the findings of the trial court with respect to the credibility of witnesses shall prevail over accused-appellant’s bare allegation that he is a victim of frame-up.54

The categorical and convincing testimonies of the policemen, backed up by physical evidence, overcome the unsubstantiated claim of ill-motive by appellant.

Accused-appellant’s guilt having been established beyond reasonable doubt, the presumption of innocence in his favor is overturned.

Under Republic Act No. 9165, the unauthorized sale of shabu carries with it the penalty of life imprisonment to death and a fine ranging from Five Hundred Thousand Pesos (P500,000.00) to Ten Million Pesos (P10,000,000.00).

Pursuant to the enactment of Republic Act No. 9346 entitled, "An Act Prohibiting the Imposition of Death Penalty in the Philippines," only life imprisonment and fine, instead of death, shall be imposed.

The penalty imposed by the trial court, as affirmed by the Court of Appeals – life imprisonment and a fine of P500,000.00 – is proper.

WHEREFORE, premises considered, the Court of Appeals Decision dated 27 November 2007 in CA-G.R. CR H.C. No. 02175 affirming the Decision promulgated on 2 April 2004 by the Regional Trial Court of Malabon City, Branch 72, in Criminal Case No. 27778-MN, finding accused-appellant Emilio Rivera y Cablang alias ‘Boy’ guilty beyond reasonable doubt of violating Section 5 of the Dangerous Drugs Act of 2002, and imposing upon him the penalty of life imprisonment and a fine of P500,000.00, is hereby AFFIRMED.

SO ORDERED.

G.R. No. 177222              October 29, 2008

PEOPLE OF THE PHILIPPINES, appellee, vs.RANILO DE LA CRUZ Y LIZING, appellant.

D E C I S I O N

TINGA, J.:

On appeal is the Decision 1 dated 30 November 2006 of the Court of Appeals in C.A.-G.R. CR No. 01266 affirming in toto the judgment 2

dated 14 June 2004 of the Regional Trial Court (RTC) of Mandaluyong City, Branch 211, finding appellant Ranilo Dela Cruz y

Lizing guilty beyond reasonable doubt of violating Section 5, Article II of Republic Act No. 9165 (R.A. No. 9165) and sentencing him to suffer the penalty of life imprisonment and ordering him to pay a fine of P500,000.00. 3

On 13 September 2002, Dela Cruz was charged with the violation of the aforesaid offense in an Information 4 that reads:

That on or about the 12th day of September 2002, in the City of Mandaluyong, Philippines, a place within the jurisdiction of this Honorable Court, the above-named accused, without any lawful authority, did then and there willfully, unlawfully and feloniously deliver, distribute, transport or sell to poseur-buyer PO2 Nick Resuello[,] one (1) heat-sealed transparent plastic sachet containing 0.03 gram each of white crystalline substance, which were found positive to the test for Methamphetamine Hydrochloride, commonly known as "shabu," a dangerous drug, for the amount of P100.00 with Serial No. XY588120, without the corresponding license and prescription, in violation of the above-cited law.

CONTRARY TO LAW. 5

On arraignment, petitioner pleaded not guilty. Thereafter, trial on the merits ensued with the prosecution presenting as witnesses arresting officers PO2 Braulio Peregrino, PO2 Nick Resuello, PO2 Marcelino Boyles, PO2 Allan Drilon, investigator-on-case PO3 Virgilio Bismonte and Forensic Chemist Joseph Perdido.

Prosecution evidence shows that on 12 September 2002, the Office of the Station Drugs Enforcement Unit (SDEU), Mandaluyong City received information that appellant, alias "Boy Tigre," of No. 73, Dela Cruz Street, Barangay Old Zaniga, Mandaluyong City was engaging in the trade of illegal drugs. A team composed of Peregrino, Boyles, Drilon and Resuello was dispatched to conduct a buy-bust operation in the area at around 2:00 p.m. of the same day. Peregrino, Boyles, and Drilon positioned themselves at a nearby area while Resuello, the designated poseur-buyer, approached appellant described as a long-haired, medium built, not-so-tall male, sporting a moustache and frequently seen wearing short pants. 6 At the time, appellant was standing outside of their gate and kept on glancing from side to side. 7 Resuello then told appellant that he wanted to buy shabu. Dela Cruz looked surprised prompting Resuello to repeat what he had said and handed him the P100 bill with Serial No. XY 588120. Appellant, in turn, handed him a plastic sachet containing the white crystalline substance. At which point, Resuello executed the pre-arranged signal and Peregrino immediately rushed to the scene. 8

Peregrino, identifying himself as a policeman, held appellant and informed him of his constitutional rights. Peregrino then recovered the buy-bust money from appellant. Subsequently, appellant was brought to SDECU for investigation. Thereat, Peregrino placed his initials (BP) on the plastic sachet containing the white crystalline substance before sending it to the Eastern Police District Crime Laboratory for chemical examination. The sachet was later tested positive for methamphetamine hydrochloride, a dangerous drug. Subsequently, Peregrino and Resuello accomplished the booking and information sheets regarding the incident. Peregrino also executed an affidavit on the matter. 9 Appellant was later identified as Ranilo Dela Cruz y Lising. 10

On cross-examination, Peregrino and Resuello admitted that the buy-bust money had neither been dusted with fluorescent powder nor marked. They only made a photocopy of it prior to the operation for purposes of identification. 11 Peregrino also testified that appellant had not been tested for the presence of fluorescent powder; neither was a drug examination conducted on him. After the arrest, Peregrino narrated that his office made a report on the matter which was forwarded to the Philippine Drug Enforcement Agency (PDEA). 12 Boyles testified likewise on cross-examination that at the time of the arrest, they had no coordination with PDEA. 13 Drilon, on the other hand, testified that he had not actually seen the transaction. 14

Forensic Chemist Perdido testified that the plastic sachet was found to contain methamphetamine hydrochloride. He, however, admitted that he examined the specimen and had made the markings on the same without the presence of appellant. 15

For the defense, appellant testified that on 12 September 2002, at around 1:00 to 2:00 p.m., he was in his house watching television with his wife when he heard a knock at the door. Outside, he came upon two men looking for "Boy Tigre." After admitting that it was he they were looking for, he was told that the barangay captain needed him. He went with the two men to see the barangay captain. Thereat, the barangay captain asked whether he knew of anyone engaged in large-scale drug pushing. Appellant replied in the negative and in response, the

barangay captain stated that there was nothing more he (the barangay captain) can do. Appellant was then told to go to the City Hall. At first, his wife accompanied him there but he later asked her to go home and raise the money Bismonte had allegedly demanded from him in exchange for his freedom. When appellant’s wife failed to return as she had given birth, a case for violation of Section 5, Article II of R.A. No. 9165 was filed against him. 16 Appellant added that he used to be involved in "video-karera" and surmised that this involvement could have provoked the barangay captain’s wrath. 17

Appellant’s wife, Jocelyn Dela Cruz, corroborated appellant’s testimony. She further stated that after appellant had identified himself as "Boy Tigre," the two men held on to him and asked him to go with them to the barangay captain. There, the barangay captain asked appellant if he knew a certain "Amon" of Pitong Gatang. When appellant replied that he did not, he was then brought to the SDECU where Bismonte allegedly demanded P100,000.00 from them or else a case without bail will be filed against appellant. 18

Finding that the prosecution had proven appellant’s guilt beyond reasonable doubt, the RTC rendered judgment against him, sentencing him to suffer the penalty of life imprisonment and ordering him to pay a fine of P500,000.00. On appeal to the Court of Appeals, the challenged decision was affirmed in toto by the appellate court, after it ruled that the trial court did not commit any reversible error in finding appellant guilty of the offense charged.

Before the Court, appellant reiterates his contention that the apprehending police officers’ failure to comply with Sections 21 19 and 86 20 of R.A. No. 9165 and that failure casts doubt on the validity of his arrest and the admissibility of the evidence allegedly seized from him. 21

Through his Manifestation (In Lieu of Supplemental Brief) dated 4 September 2007, appellant stated that he had exhaustively argued all the relevant issues in his Brief filed before the Court of Appeals and thus, he is adopting it as Supplemental Brief. 22

The Office of the Solicitor General (OSG) manifested that it was dispensing with the admission of a supplemental brief. 23 Earlier,

in its Appellee’s Brief, the OSG maintained that despite the non-compliance with the requirements of R.A. No. 9165, the seized drugs are admissible in evidence because their integrity and evidentiary value were properly preserved in accordance with the Implementing Rules and Regulations of R.A. No. 9165. 24

At the outset, it is well to restate the constitutional mandate that an accused shall be presumed innocent until the contrary is proven beyond reasonable doubt. The burden lies on the prosecution to overcome such presumption of innocence by presenting the quantum evidence required. In so doing, the prosecution must rest on its own merits and must not rely on the weakness of the defense. And if the prosecution fails to meet the required amount of evidence, the defense may logically not even present evidence on its own behalf. In which case the presumption prevails and the accused should necessarily be acquitted. 25

In prosecutions for illegal sale of dangerous drugs, the following must be proven: (1) that the transaction or sale took place; (2) the corpus delicti or the illicit drug was presented as evidence; and (3) that the buyer and

seller were identified. 26 The dangerous drug is the very corpus delicti of the offense. 27

Section 21 of R.A. No. 9165 states that:

(1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof;

The IRR of the same provision adds a proviso, to wit:

Provided, that the physical inventory and photograph shall be conducted at the place where the search warrant is served; or at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable, in case of warrantless seizures; Provided, further, that non-compliance with these requirements under justifiable grounds, as long as the integrity and evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items;

In the case at bar, the Court finds that the arresting officers failed to strictly comply with the guidelines prescribed by the law regarding the custody and control of the seized drugs despite its mandatory terms. While there was testimony regarding the marking of the seized items at the police station, there was no mention whether the same had been done in the presence of appellant or his representatives. There was likewise no mention that any representative from the media, DOJ or any elected official had been present during the inventory or that any of these people had been required to sign the copies of the inventory. Neither does it appear on record that the team photographed the contraband in accordance with law. Peregrino testified as follows:

Q While you were at the office, what did you do with the physical evidence, subject of the buy-bust operation?

A When we were at the office[,] we marked the subject physical evidence and requested for physical examination[,] Ma’am.

ACP Indunan:

What were the markings placed on the physical evidence?

A What we put is initial "BP"

Q What does this BP means [sic]?

A My initial Ma’am, Braulio Perigrino [sic]. 28

Resuello likewise testified in this wise:

ACP Indunan:

Q Before you brought this item to the crime laboratory[,] what other markings you placed on the sachet?

A We put a marking BP, Ma’am.

Q That BP stands for what[,] Mr. witness?

A Braulio Perigrino[,] Ma’am. 29

Following the rule that penal laws shall be construed strictly against the government, and liberally in favor of the accused, 30 the apprehending team’s omission to observe the procedure outlined by R.A. 9165 in the custody and disposition of the seized drugs significantly impairs the prosecution’s case.

Now, the prosecution cannot seek refuge in the proviso of the IRR in the absence of proof of entitlement to such leniency. The prosecution rationalizes its oversight by merely stating that the integrity and evidentiary value of the seized items were properly preserved in accordance with law. The allegation hardly sways the Court save when it is accompanied by proof. According to the proviso of the IRR of Section 21(a) of R.A. No. 9165, non-compliance with the procedure shall not render void and invalid the seizure of and custody of the drugs only when: (1) such non-compliance was under justifiable grounds; and (2) the integrity and the evidentiary value of the seized items are properly preserved by the apprehending team. Clearly, there must be proof that these two (2) requirements were met before any such non-compliance may be said to fall within the scope of the proviso. Significantly, not only does the present case lack the most basic or elementary attempt at compliance with the law and its implementing rules; it fails as well to provide any justificatory ground showing that the integrity of the evidence had all along been preserved. 31

Failing to prove entitlement to the application of the proviso, the arresting officers’ non-compliance with the procedure laid down by R.A No. 9156 is not excused. This inexcusable non-compliance effectively invalidates their seizure of and custody over the seized drugs, thus, compromising the identity and integrity of the same. We resolve the doubt in the integrity and identity of the corpus delicti in favor of appellant 32 as every fact necessary to constitute the crime must be established by proof beyond reasonable doubt. 33 Considering that the prosecution failed to present the required quantum of evidence, appellant’s acquittal is in order.

It is well to recall that in several cases that came before us, we have repeatedly emphasized the importance of compliance with the prescribed procedure in the custody and disposition of the seized drugs. We have over and over declared that the deviation from the standard procedure dismally compromises the integrity of the evidence. 34

Anent the argument that the buy-bust operation was conducted without the assistance or consent of PDEA, in violation of Section 86 of R.A. No. 9165, it must be pointed out that the second paragraph of the same provision states that the transfer, absorption and integration of the different offices into PDEA shall take effect within eighteen (18) months from the effectivity of the law which was on 4 July 2002. 35 In view of the

fact that the buy-bust operation was conducted on 12 September 2002, it is excusable that the same was not done in coordination with PDEA.

All told, the totality of the evidence presented in the instant case does not support appellant’s conviction for violation of Section 5, Article II, R.A. No. 9165, since the prosecution failed to prove beyond reasonable doubt all the elements of the offense. Following the constitutional mandate, when the guilt of the appellant has not been proven with moral certainty, as in this case, the presumption of innocence prevails and his exoneration should be granted as a matter of right.

WHEREFORE, the Decision dated 14 June 2004 of the Regional Trial Court of Mandaluyong City, Branch 211 in Criminal Case No. MC02-5912-D is REVERSED and SET ASIDE. Appellant RANILO DELA CRUZ y LIZING is ACQUITTED of the crime charged on the ground of reasonable doubt and ordered immediately RELEASED from custody, unless he is being held for some other lawful case.

The Director of the Bureau of Corrections is ORDERED to implement this Decision forthwith and to INFORM this Court, within five (5) days from receipt hereof, of the date appellant was actually released from confinement.

Costs de oficio.

SO ORDERED.

G.R. No. 173804             December 10, 2008

ELPIDIO BONDAD, JR., Y BURAC, appellant, vs.PEOPLE OF THE PHILIPPINES, appellee.

D E C I S I O N

CARPIO MORALES, J.:

Elpidio Bondad, Jr., y Burac (appellant) was charged before the Regional Trial Court (RTC) of Marikina City1 for violation of Section 5, paragraph 2(3), Article II of Republic Act No. 9165 (R.A. No. 9165) or the Comprehensive Dangerous Drugs Act of 2002, allegedly committed as follows:2

That on or about the 29th day of January 2004, in the City of Marikina, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, without being authorized by law, did then and there willfully, unlawfully, feloniously and knowingly sell to poseur buyer 0.02 gram of Methamphetamine Hydrochloride (shabu) contained in one (1) heat-sealed transparent plastic sachet, a dangerous drug, in violation of the above-cited law.3 (Underscoring supplied)

He was likewise charged for violation of Section 11, par. 2(3), Article II also of R.A. No. 9165, allegedly committed as follows:

That on or about the 29th day of January 2004, in the City of Marikina, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, without being authorized by law to possess or otherwise use any dangerous drugs, did then and there willfully, unlawfully and feloniously have in his possession direct custody and control 0.04 gram of white crystalline substance contained in two (2) heat-sealed plastic sachets which gave positive result to the test for Methamphetamine Hydrochloride (shabu), which is a dangerous drug, in violation of the above-cited law.4 (Underscoring supplied)

The cases were lodged at Branch 272 of the RTC of Marikina.

From the evidence for the prosecution, particularly the testimony of its principal witness PO2 Edwin Dano and its documentary evidence, the following version is culled:

At around 7:05 p.m. of January 29, 2004, while PO2 Ferdinand Brubio, PO1 Christopher Anos, and PO1 Roberto Muega were at the Station Anti Illegal Drug Special Operations Task Force (SAIDSOTF), Office of the Marikina City Police Station, PO2 Nelson Arribay arrived together with a confidential informant. The confidential informant reported, among other things, about the rampant sale of shabu in a billiard hall along Bonifacio Avenue, Barangka, Marikina City and named a certain alias "Jun" as the vendor.

The Chief of the SAIDSOTF, P/Sr. Insp. Ramchrisen Haveria, Jr., at once formed a buy-bust team composed of, among others, PO2 Ramiel Soriano and PO2 Dano who was designated as the poseur-buyer. PO2 Dano was given a one hundred peso bill bearing Serial No. Q487945 to be used as buy-bust money. It was agreed that PO2 Dano’s removal of his cap would signal that the buy-bust was consummated.

The conduct of a buy-bust operation was recorded in the police blotter and was coordinated with the Philippine Drug Enforcement Agency (PDEA) which gave it control number NOC-012904-28.

The buy-bust team, together with the confidential informant, proceeded to 3 C’s billiard hall at the corner of M. Cruz St. and Bonifacio Avenue in Barangka, Marikina City. On entering the hall, the confidential informant pointed to appellant who was then holding a cue stick beside the billiard table as the alias "Jun." The confidential informant approached appellant and talked to him. Within minutes, appellant approached PO2 Dano and asked him if he wanted to buy shabu, to which PO2 Dano answered "piso lang." Appellant at once took out a "Vicks" container from his right front pocket5 which, when opened, yielded heat-sealed plastic sachets containing substances suspected to be shabu. From the container, appellant drew out one sachet in exchange for which PO2 Dano gave the marked one hundred peso bill. At that instant, PO2 Dano removed his cap.

As the back-up police officers were closing-in, PO2 Dano grabbed appellant’s arm, identified himself, and apprised appellant of his constitutional rights. Upon PO2 Dano’s order, appellant returned the buy-bust money, handed the "Vicks" container, and gave his name as Elpidio Burac Bondad, Jr.

Still at the place of arrest, PO2 Dano placed the markings "EBB-ED BUYBUST 01/29/04" on the substance-filled sachet sold to him, and "EBB-ED, POS 1 and 2, 01/29/04" on the sachets that remained inside the "Vicks" container.

The buy-bust team thereupon brought appellant and the seized items to the Marikina City Police Station where a memorandum dated January 29, 20046 was prepared by P/Sr. Insp. Chief Haveria, Jr., addressed to the Chief of the Eastern Police District Crime Laboratory Office, requesting for the conduct of laboratory examination on the seized items to determine the presence of dangerous drugs and their weight. PO2 Dano also requested that appellant be subjected to a drug test.7

The following day or on January 30, 2004, at 3:00 P.M., upon receipt of three sachets, a laboratory examination was conducted thereon by Police Senior Inspector Annalee R. Forro, Forensic Chemical Officer of the Eastern Police District Crime Laboratory Office, who, in Physical Science Report No. D-0094-04E8, recorded, among other things, the specimen submitted, her findings and conclusion as follows:

SPECIMEN SUBMITTED:

Three (3) heat-sealed transparent plastic sachets with markings marked as A through C respectively, each containing white crystalline substance with following recorded net weights and markings:

A = 0.02 gram "EBB-ED BUYBUST 01/29/04"

B = 0.02 gram "EBB-ED POSS 1 01/29/04"

C = 0.02 gram "EBB-ED POSS 2 01/29/04"

x-x-x x-x-x x-x-x

F I N D I N G S: x x x

Qualitative examination conducted on the above-stated specimen gave POSITIVE result to the tests for Methamphetamine Hydrochloride, a dangerous drug.

x-x-x x-x-x x-x-x

C O N C L U S I O N:

Specimens A through C contain Methamphetamine Hydrochloride, a dangerous drug. 9 (Italics and emphasis in the original)

Denying the charges against him, appellant, a former police officer, claimed that he was framed up and gave the following version:

On January 29, 2004, while he was playing inside 3 C’s billiard hall, PO2 Brubio, whom he knew was a policeman, entered the billiard hall. After greeting PO2 Brubio in Bicolano, he continued playing but PO2 Brubio suddenly handcuffed him and asked him "Sumama ka muna." Another person who was at his back pushed him out of the billiard hall in the course of which he felt PO2 Brubio reaching his (appellant’s) right front pocket,10 drawing him to restrain the hand of PO2 Brubio, telling him "pera ko yan!"

Aware that his son was inside the billiard hall, appellant summoned and handed him his wallet containing P2,000. PO2 Brubio, however, took the wallet from his son, telling him "Huwag ka makialam dito." He was then made to board a car and taken to the Office of the SAIDSOTF at the police station.

Appellant’s defense was corroborated by his son Christian Jeffrey C. Bondad, and Roberto U. Mata who was a "spotter" (referee) at the billiard hall at the time appellant was arrested.

Finding for the prosecution, the trial court convicted appellant in both charges, disposing as follows:

WHEREFORE, foregoing premises considered, the Court finds the accused ELPIDIO BONDAD, JR. y BURAC guilty beyond reasonable doubt of the crime of Violation of Sec. 11 par. 2(3), Art. II of R.A. 9165 and is sentenced to suffer the penalty of imprisonment for a period of TWELVE (12) YEARS and ONE (1) DAY and to pay the fine of THREE HUNDRED THOUSAND PESOS (PhP300,000.00) as provided for in Sec. 11 par. 2(3), Art. II of RA 9165. The accused is likewise found guilty of the crime of Violation of Sec. 5 Art. II of RA 9165 and is sentenced to suffer the penalty of LIFE IMPRISONMENT and fine of FIVE HUNDRED THOUSAND PESOS (PhP500,00.00) pursuant to Sec. 5, Art. II of RA 9165 the methamphetamine hydrochloride (shabu) is ordered confiscated in favor of the government for proper destruction by the proper agency.

SO ORDERED.11 (Underscoring supplied)

By Decision of February 8, 2006,12 the Court of Appeals affirmed the trial court’s decision with modification, disposing as follows:

WHEREFORE, in the light of the foregoing, the appeal is DISMISSED for lack of merit. The assailed decision is AFFIRMED with the MODIFICATION that the accused-appellant is sentenced to suffer an indeterminate penalty of imprisonment of twelve (12) years and one (1) day, as minimum, to thirteen (13) years, as maximum and to pay a fine of Three Hundred Thousand Pesos (P300,000.00).

SO ORDERED.13 (Underscoring supplied)

Specifically with respect to the charge of possession of shabu, the appellate court held:

The evidence for the prosecution fully proved beyond reasonable doubt the elements necessary to successfully prosecute a case for illegal possession of a prohibited drug, namely, (a) the accused is in possession of an item or an object identified to be a prohibited or a regulated drug, (b) such possession is not authorized by law and (c) the accused freely and consciously possessed said drug.

Under Section 11, Par. 2 [3] of R.A. 9165, the mere act of possessing any dangerous drug consummates the crime. There is no doubt that the charge of illegal possession of shabu was proven beyond reasonable doubt since the accused-appellant knowingly possessed plastic sachets with white crystalline granules, without legal authority at the time he was caught during the buy-bust operation. The white crystalline granules found in his possession, upon laboratory examination, were positively identified as methamphetamine hydrochloride or shabu, a dangerous drug.14 (Italics in the original, underscoring supplied)

Hence, the present Petition for Review on Certiorari, appellant faulting the appellate court:

I. . . . IN CONVICTING [HIM] OF THE CRIME[S] CHARGED ON THE BASIS OF THE LONE TESTIMONY OF THE POSEUR BUYER AS AGAINST THE CORROBORATED STATEMENTS OF THE ACCUSED AND HIS WITNESSES;

II. . . . IN ADMITTING THE EVIDENCE OF THE PROSECUTION DESPITE CLEAR VIOLATION OF SECTION 21 (1) OF R.A. 9165;

III. . . . IN COMPLETELY DISREGARDING THE CLEAR EVIDENCE ON THE EXISTENCE OF IRREGULARITY IN THE PERFORMANCE OF OFFICIAL FUNCTIONS BY POLICE OFFICER/S IN THE CONDUCT OF THE BUY BUST OPERATIONS.15 (Emphasis and underscoring supplied)

As the resolution of the second assignment of error is determinative of whether there is still necessity of segueing to the first and third assignments of error, it shall early on be passed upon.

Appellant claims that there was failure to follow the requirements of Sec. 21 of R.A. No. 9165, hence, it compromised the integrity and evidentiary value of the allegedly seized items.

Sec. 21 of R.A. No 9165 provides:

Section 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or

Laboratory Equipment. – The PDEA shall take charge and have custody of all dangerous drugs, plant sources or dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and or surrendered, for proper disposition in the following manner:

(1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the persons/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof ; x x x (Emphasis and underscoring supplied)

Appellant claims that no physical inventory and photographing of the drugs took place. A reading of the testimony of the poseur-buyer, PO2 Dano indeed confirms appellant’s claim, viz:

Atty. Puentebella:

When you brought him to the police, it was there that the items taken from him were inventoried, is it not?

Witness:

We did not make inventory because we simply brought the evidence confiscated.

x x x x

Atty. Puentebella:

You also did not take photographs of the items taken from the accused?

Witness:

Yes, sir.

Atty. Puentebella:

And you know for a fact that under the new drugs law, this is a requirement for the apprehending team to do, is it not?

Pros. Gapuzan:

Counsel is asking for a conclusion of law. I will object.

Court:

Witness may answer the question.

Witness:

Yes, sir.

x x x x

Atty. Puentebella:

So it is very clear now Mr. Witness that at the time you apprehended the accused, you did not make an inventory in the presence of the accused nor you did not [ sic ] make a photograph of the items seized in the presence of the accused, an elective official, a representative from the Department of Justice, or the media, that’s very clear?

Witness:

Yes, sir.

Atty. Puentebella:

Since you did not make any inventory, it follows that you did not require them to sign your inventory as required by law?

Witness:

Yes, sir.16 (Emphasis and underscoring supplied)

Clearly then, the apprehending police officers failed to comply with the above-quoted provision of Section 21 of R.A. No. 9165.

People v. Pringas holds, however:

Non-compliance by the apprehending/buy-bust team with Section 21 is not fatal as long as there is justifiable ground therefor , and as long as the integrity and the evidentiary value of the confiscated/seized items, are

properly preserved by the apprehending officer/team . Its non-compliance will not render an accused's arrest illegal or the items seized/confiscated from him inadmissible. What is of utmost importance is the preservation of the integrity and the evidentiary value of the seized items, as the same would be utilized in the determination of the guilt or innocence of the accused.17

(Citation omitted, emphasis, italics and underscoring supplied)

The Court’s pronouncement in Pringas is based on the provision of Section 21(a) of the Implementing Rules and Regulations18 of R.A. No. 9165, viz:

x x x Provided, further, that non-compliance with these requirements under justifiable grounds , as long as the integrity and evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items; (Emphasis and underscoring supplied)

In the present case, by PO2 Dano’s claim, he immediately marked the seized items which were brought to the Crime Laboratory for examination. By his admission, however, he did not conduct an inventory of the items seized. Worse, no photograph of the items was taken. There was thus failure to faithfully follow the requirements of the law.

Parenthetically, unlike in Pringas, the defense in the present case questioned early on, during the cross examination of PO2 Dano, the failure of the apprehending officers to comply with the inventory and photographing requirements of Section 21 of R.A. No. 916519, despite PO2 Dano’s awareness of such requirements. And the defense raised it again during the offer of evidence by the prosecution, thus:

Atty. Puentebella:

x x x x

Exhibits "B" which is the brown envelope, "B-1", "B-2" and "B-3" are objected to for being product of irregular functions of police and therefore fruit of poisonous thinking [sic] and they are not admissible and they were not photographed in the presence of the accused as provided for by Sec. 21, par.1, R.A. 9165;20 (emphasis supplied)

IN FINE, as the failure to comply with the aforesaid requirements of the law compromised the identity of the items seized, which is the corpus delicti of each of the crimes charged against appellant,21 his acquittal is in order.

This leaves it unnecessary to still dwell on the first and third assignments of error.

WHEREFORE, the Petition is GRANTED. The assailed decision is REVERSED and SET ASIDE and appellant, Elpidio Bondad Jr., y Burac, is ACQUITED of the crimes charged.

Let a copy of this Decision be furnished the Director of the Bureau of Corrections, Muntinlupa City who is directed to cause the immediate release of appellant unless he is being lawfully held for another cause, and to inform this Court of action taken within ten (10) days from notice hereof.

SO ORDERED.

G.R. No. 157870             November 3, 2008

SOCIAL JUSTICE SOCIETY (SJS), petitioner vs.DANGEROUS DRUGS BOARD and PHILIPPINE DRUG ENFORCEMENT AGENCY (PDEA), respondents.

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

G.R. No. 158633             November 3, 2008

ATTY. MANUEL J. LASERNA, JR., petitioner vs.DANGEROUS DRUGS BOARD and PHILIPPINE DRUG ENFORCEMENT AGENCY, respondents.

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

G.R. No. 161658             November 3, 2008

AQUILINO Q. PIMENTEL, JR., petitioner vs.COMMISSION ON ELECTIONS, respondents.

D E C I S I O N

VELASCO, JR., J.:

In these kindred petitions, the constitutionality of Section 36 of Republic Act No. (RA) 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002, insofar as it requires mandatory drug testing of candidates for public office, students of secondary and tertiary schools, officers and employees of public and private offices, and persons charged before the prosecutor's office with certain offenses, among other personalities, is put in issue.

As far as pertinent, the challenged section reads as follows:

SEC. 36. Authorized Drug Testing. - Authorized drug testing shall be done by any government forensic

laboratories or by any of the drug testing laboratories accredited and monitored by the DOH to safeguard the quality of the test results. x x x The drug testing shall employ, among others, two (2) testing methods, the screening test which will determine the positive result as well as the type of drug used and the confirmatory test which will confirm a positive screening test. x x x The following shall be subjected to undergo drug testing:

x x x x

(c) Students of secondary and tertiary schools. - Students of secondary and tertiary schools shall, pursuant to the related rules and regulations as contained in the school's student handbook and with notice to the parents, undergo a random drug testing x x x;

(d) Officers and employees of public and private offices. - Officers and employees of public and private offices, whether domestic or overseas, shall be subjected to undergo a random drug test as contained in the company's work rules and regulations, x x x for purposes of reducing the risk in the workplace. Any officer or employee found positive for use of dangerous drugs shall be dealt with administratively which shall be a ground for suspension or termination, subject to the provisions of Article 282 of the Labor Code and pertinent provisions of the Civil Service Law;

x x x x

(f) All persons charged before the prosecutor's office with a criminal offense having an imposable penalty of imprisonment of not less than six (6) years and one (1) day shall undergo a mandatory drug test;

(g) All candidates for public office whether appointed or elected both in the national or local government shall undergo a mandatory drug test.

In addition to the above stated penalties in this Section, those found to be positive for dangerous drugs use shall be subject to the provisions of Section 15 of this Act.

G.R. No. 161658 (Aquilino Q. Pimentel, Jr. v. Commission on Elections)

On December 23, 2003, the Commission on Elections (COMELEC) issued Resolution No. 6486, prescribing the rules and regulations on the mandatory drug testing of candidates for public office in connection with the May 10, 2004 synchronized national and local elections. The pertinent portions of the said resolution read as follows:

WHEREAS, Section 36 (g) of Republic Act No. 9165 provides:

SEC. 36. Authorized Drug Testing. - x x x

x x x x

(g) All candidates for public office x x x both in the national or local government shall undergo a mandatory drug test.

WHEREAS, Section 1, Article XI of the 1987 Constitution provides that public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty and efficiency;

WHEREAS, by requiring candidates to undergo mandatory drug test, the public will know the quality of candidates they are electing and they will be assured that only those who can serve with utmost responsibility, integrity, loyalty, and efficiency would be elected x x x.

NOW THEREFORE, The [COMELEC], pursuant to the authority vested in it under the Constitution, Batas Pambansa Blg. 881 (Omnibus Election Code), [RA] 9165 and other election laws, RESOLVED to promulgate, as it hereby promulgates, the following rules and regulations on the conduct of mandatory drug testing to candidates for public office[:]

SECTION 1. Coverage. - All candidates for public office, both national and local, in the May 10, 2004 Synchronized National and Local Elections shall undergo mandatory drug test in government forensic laboratories or any drug testing laboratories monitored and accredited by the Department of Health.

SEC. 3. x x x

On March 25, 2004, in addition to the drug certificates filed with their respective offices, the Comelec Offices and employees concerned shall submit to the Law Department two (2) separate lists of candidates. The first list shall consist of those candidates who complied with the mandatory drug test while the second list shall consist of those candidates who failed to comply x x x.

SEC. 4. Preparation and publication of names of candidates. - Before the start of the campaign period, the [COMELEC] shall prepare two separate lists of candidates. The first list shall consist of those candidates who complied with the mandatory drug test while the second list shall consist of those candidates who failed to comply with said drug test. x x x

SEC. 5. Effect of failure to undergo mandatory drug test and file drug test certificate. - No person elected to any public office shall enter upon the duties of his office until he has undergone mandatory drug test and filed with the offices enumerated under Section 2 hereof the drug test certificate herein required. (Emphasis supplied.)

Petitioner Aquilino Q. Pimentel, Jr., a senator of the Republic and a candidate for re - election in the May 10, 2004 elections,1 filed a Petition for Certiorari and Prohibition under Rule 65. In it, he seeks (1) to nullify Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 dated December 23, 2003 for being unconstitutional in that they impose a qualification for candidates for senators in addition to those already provided for in the 1987 Constitution; and (2) to enjoin the COMELEC from implementing Resolution No. 6486.

Pimentel invokes as legal basis for his petition Sec. 3, Article VI of the Constitution, which states:

SECTION 3. No person shall be a Senator unless he is a natural - born citizen of the Philippines, and, on the day of the election, is at least thirty - five years of age, able to read and write, a registered voter, and a resident of the Philippines for not less than two years immediately preceding the day of the election.

According to Pimentel, the Constitution only prescribes a maximum of five (5) qualifications for one to be a candidate for, elected to, and be a member of the Senate. He says that both the Congress and COMELEC, by requiring, via RA 9165 and Resolution No. 6486, a senatorial aspirant, among other candidates, to undergo a mandatory drug test, create an additional qualification that all candidates for senator must first be certified as drug free. He adds that there is no provision in the Constitution authorizing the Congress or COMELEC to expand the qualification requirements of candidates for senator.

G.R. No. 157870 (Social Justice Society v. DangerousDrugs Board and Philippine Drug Enforcement Agency)

In its Petition for Prohibition under Rule 65, petitioner Social Justice Society (SJS), a registered political party, seeks to prohibit the Dangerous Drugs Board (DDB) and the Philippine Drug Enforcement Agency (PDEA) from enforcing paragraphs (c), (d), (f), and (g) of Sec. 36 of RA 9165 on the ground that they are constitutionally infirm. For one, the provisions constitute undue delegation of legislative power when they give unbridled discretion to schools and employers to determine the manner of drug testing. For another, the provisions trench in the equal protection clause inasmuch as they can be used to harass a student or an employee deemed undesirable. And for a third, a person's constitutional right against unreasonable searches is also breached by said provisions.

G.R. No. 158633 (Atty. Manuel J. Laserna, Jr. v. DangerousDrugs Board and Philippine Drug Enforcement Agency)

Petitioner Atty. Manuel J. Laserna, Jr., as citizen and taxpayer, also seeks in his Petition for Certiorari and Prohibition under Rule 65 that Sec. 36(c), (d), (f), and (g) of RA 9165 be struck down as unconstitutional for infringing on the constitutional right to privacy, the right against unreasonable search and seizure, and the right against self - incrimination, and for being contrary to the due process and equal protection guarantees.

The Issue on Locus Standi

First off, we shall address the justiciability of the cases at bench and the matter of the standing of petitioners SJS and Laserna to sue. As respondents DDB and PDEA assert, SJS and Laserna failed to allege any incident amounting to a violation of the constitutional rights mentioned in their separate petitions.2

It is basic that the power of judicial review can only be exercised in connection with a bona fide controversy which involves the statute sought to be reviewed.3 But even with the presence of an actual case or controversy, the Court may refuse to exercise judicial review unless the constitutional question is brought before it by a party having the requisite standing to challenge it.4 To have standing, one must establish that he or she has suffered some actual or threatened injury as a result of the allegedly illegal conduct of the government; the injury is fairly traceable to the challenged action; and the injury is likely to be redressed by a favorable action.5

The rule on standing, however, is a matter of procedure; hence, it can be relaxed for non - traditional plaintiffs, like ordinary citizens, taxpayers, and legislators when the public interest so requires, such as when the matter is of transcendental importance, of overarching significance to society, or of paramount public interest.6 There is no doubt that Pimentel, as senator of the Philippines and candidate for the May 10, 2004 elections, possesses the requisite standing since he has substantial interests in the subject matter of the petition, among other preliminary considerations. Regarding SJS and Laserna, this Court is wont to relax the rule on locus standi owing primarily to the transcendental importance and the paramount public interest involved in the enforcement of Sec. 36 of RA 9165.

The Consolidated Issues

The principal issues before us are as follows:

(1) Do Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 impose an additional qualification for candidates for senator? Corollarily, can Congress enact a law prescribing qualifications for candidates for senator in addition to those laid down by the Constitution? and

(2) Are paragraphs (c), (d), (f), and (g) of Sec. 36, RA 9165 unconstitutional? Specifically, do these paragraphs violate the right to privacy, the right against unreasonable searches and seizure, and the equal protection clause? Or do they constitute undue delegation of legislative power?

Pimentel Petition(Constitutionality of Sec. 36[g] of RA 9165 andCOMELEC Resolution No. 6486)

In essence, Pimentel claims that Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 illegally impose an additional qualification on candidates for senator. He points out that, subject to the provisions on nuisance candidates, a candidate for senator needs only to meet the qualifications laid down in Sec. 3, Art. VI of the Constitution, to wit: (1) citizenship, (2) voter registration, (3) literacy, (4) age, and (5) residency. Beyond these stated qualification requirements, candidates for senator need not possess any other qualification to run for senator and be voted upon and elected as member of the Senate. The Congress cannot validly amend or otherwise modify these qualification standards, as it

cannot disregard, evade, or weaken the force of a constitutional mandate,7 or alter or enlarge the Constitution.

Pimentel's contention is well - taken. Accordingly, Sec. 36(g) of RA 9165 should be, as it is hereby declared as, unconstitutional. It is basic that if a law or an administrative rule violates any norm of the Constitution, that issuance is null and void and has no effect. The Constitution is the basic law to which all laws must conform; no act shall be valid if it conflicts with the Constitution.8 In the discharge of their defined functions, the three departments of government have no choice but to yield obedience to the commands of the Constitution. Whatever limits it imposes must be observed.9

Congress' inherent legislative powers, broad as they may be, are subject to certain limitations. As early as 1927, in Government v. Springer, the Court has defined, in the abstract, the limits on legislative power in the following wise:

Someone has said that the powers of the legislative department of the Government, like the boundaries of the ocean, are unlimited. In constitutional governments, however, as well as governments acting under delegated authority, the powers of each of the departments x x x are limited and confined within the four walls of the constitution or the charter, and each department can only exercise such powers as are necessarily implied from the given powers. The Constitution is the shore of legislative authority against which the waves of legislative enactment may dash, but over which it cannot leap.10

Thus, legislative power remains limited in the sense that it is subject to substantive and constitutional limitations which circumscribe both the exercise of the power itself and the allowable subjects of legislation.11

The substantive constitutional limitations are chiefly found in the Bill of Rights12 and other provisions, such as Sec. 3, Art. VI of the Constitution prescribing the qualifications of candidates for senators.

In the same vein, the COMELEC cannot, in the guise of enforcing and administering election laws or promulgating rules and regulations to implement Sec. 36(g), validly impose qualifications on candidates for senator in addition to what the Constitution prescribes. If Congress cannot require a candidate for senator to meet such additional qualification, the COMELEC, to be sure, is also without such power. The right of a citizen in the democratic process of election should not be defeated by unwarranted impositions of requirement not otherwise specified in the Constitution.13

Sec. 36(g) of RA 9165, as sought to be implemented by the assailed COMELEC resolution, effectively enlarges the qualification requirements enumerated in the Sec. 3, Art. VI of the Constitution. As couched, said Sec. 36(g) unmistakably requires a candidate for senator to be certified illegal - drug clean, obviously as a pre - condition to the validity of a certificate of candidacy for senator or, with like effect, a condition sine qua non to be voted upon and, if proper, be proclaimed as senator - elect. The COMELEC resolution completes the chain with the proviso that "[n]o person elected to any public office shall enter upon the duties of his office until he has undergone mandatory drug test." Viewed, therefore, in its proper context, Sec. 36(g) of RA 9165 and the implementing COMELEC Resolution add another qualification layer to what the 1987 Constitution, at the minimum, requires for membership in the Senate. Whether or not the drug - free bar set up under the

challenged provision is to be hurdled before or after election is really of no moment, as getting elected would be of little value if one cannot assume office for non - compliance with the drug - testing requirement.

It may of course be argued, in defense of the validity of Sec. 36(g) of RA 9165, that the provision does not expressly state that non - compliance with the drug test imposition is a disqualifying factor or would work to nullify a certificate of candidacy. This argument may be accorded plausibility if the drug test requirement is optional. But the particular section of the law, without exception, made drug - testing on those covered mandatory, necessarily suggesting that the obstinate ones shall have to suffer the adverse consequences for not adhering to the statutory command. And since the provision deals with candidates for public office, it stands to reason that the adverse consequence adverted to can only refer to and revolve around the election and the assumption of public office of the candidates. Any other construal would reduce the mandatory nature of Sec. 36(g) of RA 9165 into a pure jargon without meaning and effect whatsoever.

While it is anti - climactic to state it at this juncture, COMELEC Resolution No. 6486 is no longer enforceable, for by its terms, it was intended to cover only the May 10, 2004 synchronized elections and the candidates running in that electoral event. Nonetheless, to obviate repetition, the Court deems it appropriate to review and rule, as it hereby rules, on its validity as an implementing issuance.

It ought to be made abundantly clear, however, that the unconstitutionality of Sec. 36(g) of RA 9165 is rooted on its having infringed the constitutional provision defining the qualification or eligibility requirements for one aspiring to run for and serve as senator.

SJS Petition(Constitutionality of Sec. 36[c], [d], [f], and [g] of RA 9165)

The drug test prescribed under Sec. 36(c), (d), and (f) of RA 9165 for secondary and tertiary level students and public and private employees, while mandatory, is a random and suspicionless arrangement. The objective is to stamp out illegal drug and safeguard in the process "the well being of [the] citizenry, particularly the youth, from the harmful effects of dangerous drugs." This statutory purpose, per the policy - declaration portion of the law, can be achieved via the pursuit by the state of "an intensive and unrelenting campaign against the trafficking and use of dangerous drugs x x x through an integrated system of planning, implementation and enforcement of anti - drug abuse policies, programs and projects."14 The primary legislative intent is not criminal prosecution, as those found positive for illegal drug use as a result of this random testing are not necessarily treated as criminals. They may even be exempt from criminal liability should the illegal drug user consent to undergo rehabilitation. Secs. 54 and 55 of RA 9165 are clear on this point:

Sec. 54. Voluntary Submission of a Drug Dependent to Confinement, Treatment and Rehabilitation. - A drug dependent or any person who violates Section 15 of this Act may, by himself/herself or through his/her parent, [close relatives] x x x apply to the Board x x x for treatment and rehabilitation of the drug dependency. Upon such application, the Board shall bring forth the matter to the Court which shall order that the applicant be examined for drug dependency. If the examination x x x results in the certification that the applicant is a drug dependent, he/she

shall be ordered by the Court to undergo treatment and rehabilitation in a Center designated by the Board x x x.

x x x x

Sec. 55. Exemption from the Criminal Liability Under the Voluntary Submission Program. - A drug dependent under the voluntary submission program, who is finally discharged from confinement, shall be exempt from the criminal liability under Section 15 of this Act subject to the following conditions:

x x x x

School children, the US Supreme Court noted, are most vulnerable to the physical, psychological, and addictive effects of drugs. Maturing nervous systems of the young are more critically impaired by intoxicants and are more inclined to drug dependency. Their recovery is also at a depressingly low rate.15

The right to privacy has been accorded recognition in this jurisdiction as a facet of the right protected by the guarantee against unreasonable search and seizure16 under Sec. 2, Art. III17 of the Constitution. But while the right to privacy has long come into its own, this case appears to be the first time that the validity of a state - decreed search or intrusion through the medium of mandatory random drug testing among students and employees is, in this jurisdiction, made the focal point. Thus, the issue tendered in these proceedings is veritably one of first impression.

US jurisprudence is, however, a rich source of persuasive jurisprudence. With respect to random drug testing among school children, we turn to the teachings of Vernonia School District 47J v. Acton (Vernonia) and Board of Education of Independent School District No. 92 of Pottawatomie County, et al. v. Earls, et al. (Board of Education),18 both fairly pertinent US Supreme Court - decided cases involving the constitutionality of governmental search.

In Vernonia, school administrators in Vernonia, Oregon wanted to address the drug menace in their respective institutions following the discovery of frequent drug use by school athletes. After consultation with the parents, they required random urinalysis drug testing for the school's athletes. James Acton, a high school student, was denied participation in the football program after he refused to undertake the urinalysis drug testing. Acton forthwith sued, claiming that the school's drug testing policy violated, inter alia, the Fourth Amendment19 of the US Constitution.

The US Supreme Court, in fashioning a solution to the issues raised in Vernonia, considered the following: (1) schools stand in loco parentis over their students; (2) school children, while not shedding their constitutional rights at the school gate, have less privacy rights; (3) athletes have less privacy rights than non - athletes since the former observe communal undress before and after sports events; (4) by joining the sports activity, the athletes voluntarily subjected themselves to a higher degree of school supervision and regulation; (5) requiring urine samples does not invade a student's privacy since a student need not undress for this kind of drug testing; and (6) there is need for the drug testing because of the dangerous effects of illegal drugs on the young. The US Supreme Court held that the policy constituted

reasonable search under the Fourth20 and 14th Amendments and declared the random drug - testing policy constitutional.

In Board of Education, the Board of Education of a school in Tecumseh, Oklahoma required a drug test for high school students desiring to join extra - curricular activities. Lindsay Earls, a member of the show choir, marching band, and academic team declined to undergo a drug test and averred that the drug - testing policy made to apply to non - athletes violated the Fourth and 14th Amendments. As Earls argued, unlike athletes who routinely undergo physical examinations and undress before their peers in locker rooms, non - athletes are entitled to more privacy.

The US Supreme Court, citing Vernonia, upheld the constitutionality of drug testing even among non - athletes on the basis of the school's custodial responsibility and authority. In so ruling, said court made no distinction between a non - athlete and an athlete. It ratiocinated that schools and teachers act in place of the parents with a similar interest and duty of safeguarding the health of the students. And in holding that the school could implement its random drug - testing policy, the Court hinted that such a test was a kind of search in which even a reasonable parent might need to engage.

In sum, what can reasonably be deduced from the above two cases and applied to this jurisdiction are: (1) schools and their administrators stand in loco parentis with respect to their students; (2) minor students have contextually fewer rights than an adult, and are subject to the custody and supervision of their parents, guardians, and schools; (3) schools, acting in loco parentis, have a duty to safeguard the health and well - being of their students and may adopt such measures as may reasonably be necessary to discharge such duty; and (4) schools have the right to impose conditions on applicants for admission that are fair, just, and non-discriminatory.

Guided by Vernonia and Board of Education, the Court is of the view and so holds that the provisions of RA 9165 requiring mandatory, random, and suspicionless drug testing of students are constitutional. Indeed, it is within the prerogative of educational institutions to require, as a condition for admission, compliance with reasonable school rules and regulations and policies. To be sure, the right to enroll is not absolute; it is subject to fair, reasonable, and equitable requirements.

The Court can take judicial notice of the proliferation of prohibited drugs in the country that threatens the well - being of the people,21 particularly the youth and school children who usually end up as victims. Accordingly, and until a more effective method is conceptualized and put in motion, a random drug testing of students in secondary and tertiary schools is not only acceptable but may even be necessary if the safety and interest of the student population, doubtless a legitimate concern of the government, are to be promoted and protected. To borrow from Vernonia, "[d]eterring drug use by our Nation's schoolchildren is as important as enhancing efficient enforcement of the Nation's laws against the importation of drugs"; the necessity for the State to act is magnified by the fact that the effects of a drug - infested school are visited not just upon the users, but upon the entire student body and faculty.22 Needless to stress, the random testing scheme provided under the law argues against the idea that the testing aims to incriminate unsuspecting individual students.

Just as in the case of secondary and tertiary level students, the mandatory but random drug test prescribed by Sec. 36 of RA 9165 for

officers and employees of public and private offices is justifiable, albeit not exactly for the same reason. The Court notes in this regard that petitioner SJS, other than saying that "subjecting almost everybody to drug testing, without probable cause, is unreasonable, an unwarranted intrusion of the individual right to privacy,"23 has failed to show how the mandatory, random, and suspicionless drug testing under Sec. 36(c) and (d) of RA 9165 violates the right to privacy and constitutes unlawful and/or unconsented search under Art. III, Secs. 1 and 2 of the Constitution.24 Petitioner Laserna's lament is just as simplistic, sweeping, and gratuitous and does not merit serious consideration. Consider what he wrote without elaboration:

The US Supreme Court and US Circuit Courts of Appeals have made various rulings on the constitutionality of mandatory drug tests in the school and the workplaces. The US courts have been consistent in their rulings that the mandatory drug tests violate a citizen's constitutional right to privacy and right against unreasonable search and seizure. They are quoted extensively hereinbelow.25

The essence of privacy is the right to be left alone.26 In context, the right to privacy means the right to be free from unwarranted exploitation of one's person or from intrusion into one's private activities in such a way as to cause humiliation to a person's ordinary sensibilities. 27 And while there has been general agreement as to the basic function of the guarantee against unwarranted search, "translation of the abstract prohibition against ‘unreasonable searches and seizures' into workable broad guidelines for the decision of particular cases is a difficult task," to borrow from C. Camara v. Municipal Court.28 Authorities are agreed though that the right to privacy yields to certain paramount rights of the public and defers to the state's exercise of police power.29

As the warrantless clause of Sec. 2, Art III of the Constitution is couched and as has been held, "reasonableness" is the touchstone of the validity of a government search or intrusion.30 And whether a search at issue hews to the reasonableness standard is judged by the balancing of the government - mandated intrusion on the individual's privacy interest against the promotion of some compelling state interest.31 In the criminal context, reasonableness requires showing of probable cause to be personally determined by a judge. Given that the drug - testing policy for employees--and students for that matter--under RA 9165 is in the nature of administrative search needing what was referred to in Vernonia as "swift and informal disciplinary procedures," the probable - cause standard is not required or even practicable. Be that as it may, the review should focus on the reasonableness of the challenged administrative search in question.

The first factor to consider in the matter of reasonableness is the nature of the privacy interest upon which the drug testing, which effects a search within the meaning of Sec. 2, Art. III of the Constitution, intrudes. In this case, the office or workplace serves as the backdrop for the analysis of the privacy expectation of the employees and the reasonableness of drug testing requirement. The employees' privacy interest in an office is to a large extent circumscribed by the company's work policies, the collective bargaining agreement, if any, entered into by management and the bargaining unit, and the inherent right of the employer to maintain discipline and efficiency in the workplace. Their privacy expectation in a regulated office environment is, in fine, reduced; and a degree of impingement upon such privacy has been upheld.

Just as defining as the first factor is the character of the intrusion authorized by the challenged law. Reduced to a question form, is the

scope of the search or intrusion clearly set forth, or, as formulated in Ople v. Torres, is the enabling law authorizing a search "narrowly drawn" or "narrowly focused"?32

The poser should be answered in the affirmative. For one, Sec. 36 of RA 9165 and its implementing rules and regulations (IRR), as couched, contain provisions specifically directed towards preventing a situation that would unduly embarrass the employees or place them under a humiliating experience. While every officer and employee in a private establishment is under the law deemed forewarned that he or she may be a possible subject of a drug test, nobody is really singled out in advance for drug testing. The goal is to discourage drug use by not telling in advance anyone when and who is to be tested. And as may be observed, Sec. 36(d) of RA 9165 itself prescribes what, in Ople, is a narrowing ingredient by providing that the employees concerned shall be subjected to "random drug test as contained in the company's work rules and regulations x x x for purposes of reducing the risk in the work place."

For another, the random drug testing shall be undertaken under conditions calculated to protect as much as possible the employee's privacy and dignity. As to the mechanics of the test, the law specifies that the procedure shall employ two testing methods, i.e., the screening test and the confirmatory test, doubtless to ensure as much as possible the trustworthiness of the results. But the more important consideration lies in the fact that the test shall be conducted by trained professionals in access - controlled laboratories monitored by the Department of Health (DOH) to safeguard against results tampering and to ensure an accurate chain of custody.33 In addition, the IRR issued by the DOH provides that access to the drug results shall be on the "need to know" basis;34 that the "drug test result and the records shall be [kept] confidential subject to the usual accepted practices to protect the confidentiality of the test results."35 Notably, RA 9165 does not oblige the employer concerned to report to the prosecuting agencies any information or evidence relating to the violation of the Comprehensive Dangerous Drugs Act received as a result of the operation of the drug testing. All told, therefore, the intrusion into the employees' privacy, under RA 9165, is accompanied by proper safeguards, particularly against embarrassing leakages of test results, and is relatively minimal.

To reiterate, RA 9165 was enacted as a measure to stamp out illegal drug in the country and thus protect the well - being of the citizens, especially the youth, from the deleterious effects of dangerous drugs. The law intends to achieve this through the medium, among others, of promoting and resolutely pursuing a national drug abuse policy in the workplace via a mandatory random drug test.36 To the Court, the need for drug testing to at least minimize illegal drug use is substantial enough to override the individual's privacy interest under the premises. The Court can consider that the illegal drug menace cuts across gender, age group, and social - economic lines. And it may not be amiss to state that the sale, manufacture, or trafficking of illegal drugs, with their ready market, would be an investor's dream were it not for the illegal and immoral components of any of such activities. The drug problem has hardly abated since the martial law public execution of a notorious drug trafficker. The state can no longer assume a laid back stance with respect to this modern - day scourge. Drug enforcement agencies perceive a mandatory random drug test to be an effective way of preventing and deterring drug use among employees in private offices, the threat of detection by random testing being higher than other modes. The Court holds that the chosen method is a reasonable and enough means to lick the problem.

Taking into account the foregoing factors, i.e., the reduced expectation of privacy on the part of the employees, the compelling state concern likely to be met by the search, and the well - defined limits set forth in the law to properly guide authorities in the conduct of the random testing, we hold that the challenged drug test requirement is, under the limited context of the case, reasonable and, ergo, constitutional.

Like their counterparts in the private sector, government officials and employees also labor under reasonable supervision and restrictions imposed by the Civil Service law and other laws on public officers, all enacted to promote a high standard of ethics in the public service.37 And if RA 9165 passes the norm of reasonableness for private employees, the more reason that it should pass the test for civil servants, who, by constitutional command, are required to be accountable at all times to the people and to serve them with utmost responsibility and efficiency.38

Petitioner SJS' next posture that Sec. 36 of RA 9165 is objectionable on the ground of undue delegation of power hardly commends itself for concurrence. Contrary to its position, the provision in question is not so extensively drawn as to give unbridled options to schools and employers to determine the manner of drug testing. Sec. 36 expressly provides how drug testing for students of secondary and tertiary schools and officers/employees of public/private offices should be conducted. It enumerates the persons who shall undergo drug testing. In the case of students, the testing shall be in accordance with the school rules as contained in the student handbook and with notice to parents. On the part of officers/employees, the testing shall take into account the company's work rules. In either case, the random procedure shall be observed, meaning that the persons to be subjected to drug test shall be picked by chance or in an unplanned way. And in all cases, safeguards against misusing and compromising the confidentiality of the test results are established.

Lest it be overlooked, Sec. 94 of RA 9165 charges the DDB to issue, in consultation with the DOH, Department of the Interior and Local Government, Department of Education, and Department of Labor and Employment, among other agencies, the IRR necessary to enforce the law. In net effect then, the participation of schools and offices in the drug testing scheme shall always be subject to the IRR of RA 9165. It is, therefore, incorrect to say that schools and employers have unchecked discretion to determine how often, under what conditions, and where the drug tests shall be conducted.

The validity of delegating legislative power is now a quiet area in the constitutional landscape.39 In the face of the increasing complexity of the task of the government and the increasing inability of the legislature to cope directly with the many problems demanding its attention, resort to delegation of power, or entrusting to administrative agencies the power of subordinate legislation, has become imperative, as here.

Laserna Petition (Constitutionality of Sec. 36[c], [d], [f], and [g] of RA 9165)

Unlike the situation covered by Sec. 36(c) and (d) of RA 9165, the Court finds no valid justification for mandatory drug testing for persons accused of crimes. In the case of students, the constitutional viability of the mandatory, random, and suspicionless drug testing for students emanates primarily from the waiver by the students of their right to privacy when they seek entry to the school, and from their voluntarily submitting their persons to the parental authority of school authorities. In the case of private and public employees, the constitutional soundness

of the mandatory, random, and suspicionless drug testing proceeds from the reasonableness of the drug test policy and requirement.

We find the situation entirely different in the case of persons charged before the public prosecutor's office with criminal offenses punishable with six (6) years and one (1) day imprisonment. The operative concepts in the mandatory drug testing are "randomness" and "suspicionless." In the case of persons charged with a crime before the prosecutor's office, a mandatory drug testing can never be random or suspicionless. The ideas of randomness and being suspicionless are antithetical to their being made defendants in a criminal complaint. They are not randomly picked; neither are they beyond suspicion. When persons suspected of committing a crime are charged, they are singled out and are impleaded against their will. The persons thus charged, by the bare fact of being haled before the prosecutor's office and peaceably submitting themselves to drug testing, if that be the case, do not necessarily consent to the procedure, let alone waive their right to privacy.40 To impose mandatory drug testing on the accused is a blatant attempt to harness a medical test as a tool for criminal prosecution, contrary to the stated objectives of RA 9165. Drug testing in this case would violate a persons' right to privacy guaranteed under Sec. 2, Art. III of the Constitution. Worse still, the accused persons are veritably forced to incriminate themselves.

WHEREFORE, the Court resolves to GRANT the petition in G.R. No. 161658 and declares Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 as UNCONSTITUTIONAL; and to PARTIALLY GRANT the petition in G.R. Nos. 157870 and 158633 by declaring Sec. 36(c) and (d) of RA 9165 CONSTITUTIONAL, but declaring its Sec. 36(f) UNCONSTITUTIONAL. All concerned agencies are, accordingly, permanently enjoined from implementing Sec. 36(f) and (g) of RA 9165. No costs.

SO ORDERED.

G.R. No. 184174               April 7, 2009

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs.REYNALDO CAPALAD y ESTO, Accused-Appellant.

D E C I S I O N

VELASCO, JR., J.:

This is an appeal from the September 27, 2007 Decision of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 02108 entitled People of the Philippines v. Reynaldo Capalad which affirmed the March 16, 2006 Decision in Criminal Case Nos. C-69458-59 of the Regional Trial Court (RTC), Branch 127 in Caloocan City. The RTC convicted accused-appellant Reynaldo Capalad of violations of Sections 5 and 11 of Article II, Republic Act No. (RA) 9165 or the Comprehensive Dangerous Drugs Act of 2002.

The Facts

Accused-appellant was charged under the following Informations:

Criminal Case No. C-69458

(Violation of Sec. 5 [Sale] of Art. II, RA 9165)

That on or about the 29th day of October 2003, in Caloocan City, Metro Manila, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously sell and deliver to PO1 JEFFRED PACIS one (1) small sealed transparent plastic sachet of ‘Shabu’ Methamphethamine Hydrochloride, with a weight of 0.04 [gram] x x x, a dangerous drug, without being authorized by law in violation of said cited law.

Contrary to law.

Criminal Case No. C-69459

(Violation of Sec. 11 [Possession] of Art. II, RA 9165)

That on or about the 29th of October 2003, in Caloocan City, Metro Manila, and within the jurisdiction of this Honorable Court, the above-named accused, without any authority of law, did then and there willfully, unlawfully and feloniously have in his possession, custody and control three (3) heat-sealed transparent plastic sachets containing 0.04, 0.05 and 0.05 [gram], with the total 0.14 [gram] of white crystalline substance Methamphetamine Hydrochloride known as ‘SHABU,’ a dangerous drug and knowing the same to be such.

Contrary to law.1

On January 15, 2004, accused-appellant entered a plea of "not guilty" to both charges against him.

At the trial, the prosecution presented PO3 Fernando Moran, PO1 Jeffred Pacis, and PO1 Victor Manansala as witnesses. The defense witnesses consisted of accused-appellant and his son, Reymel Capalad.

According to the prosecution, an informant arrived at the SAID-SOU Office on October 29, 2003 and relayed to the desk officer that one "Buddha" was selling shabu along Bulusan Street. The desk officer then passed on the report to PO3 Rangel, who informed Police Inspector Cesar Gonzales Cruz of it. A buy-bust team was formed shortly thereafter and was composed of PO3 Rangel, PO2 Caragdag, PO2 Tayag, PO1 Perillo, PO1 Paras, PO1 Manansala, and PO1 Pacis, with the latter as poseur-buyer and PO1 Manansala as his back-up. The others formed the perimeter security. Inspector Cruz then sent a Request for Detection of Ultra Violet Powder addressed to the NPD PNP Crime Laboratory Office for the dusting of a PhP 100 bill with Serial Number BB945809. The bill was to be used by PO1 Pacis as buy-bust money.2

The buy-bust team was dispatched to the target area at midnight. They arrived at around 1:00 a.m. and instructed their informant to look for "Buddha." When the informant spotted "Buddha," a fat man with a bulging stomach, PO1 Pacis and the informant proceeded to where he was while the rest of the team hid in strategic places. PO1 Pacis approached "Buddha" and told him, "Pare, pakuha ng piso panggamit

lang."3 He then handed the powder-dusted hundred peso bill. "Buddha" reached for the garter of his underwear and gave him a plastic sachet upon receiving the money. He remarked to PO1 Pacis, "Ayan, maganda yan." When PO1 Pacis got hold of the plastic sachet he gave the pre-arranged signal by scratching his head. He introduced himself as a police officer and held on to "Buddha’s" arm. PO1 Manansala joined the two men and assisted in holding on to "Buddha," who turned out to be accused-appellant. PO1 Pacis recovered the dusted hundred peso bill from accused-appellant while PO1 Manansala retrieved three (3) pieces of plastic sachets from the garter of accused-appellant’s underwear.4

Accused-appellant was later brought to PO3 Moran along with the seized items. PO3 Moran then marked the seized items "RCE-1" to "RCE-3," the letters standing for accused-appellant’s initials. The items were referred for chemical analysis to the PNP Crime Laboratory per request of Inspector Cruz. Forensic Chemical Officer Jesse Abadilla Dela Rosa subsequently conducted an examination. He documented the results in Physical Sciences Report No. D-1384-03, which showed the following entries:

SPECIMEN SUBMITTED:

Four (4) heat-sealed transparent plastic sachets each containing white crystalline substance with the following markings and recorded net weights:

A (JP/RCE-BUY-BUST 10-29-03) = 0.04 gram

B (JP/RCE-1 10-29-03) = 0.04 gram

C (JP/RCE-2 10-29-03) = 0.05 gram

D (JP/RCE-3 10-29-03) = 0.05 gram

x x x x

PURPOSE OF LABORATORY EXAMINATION:

To determine the presence of dangerous drugs. x x x

FINDINGS:

Qualitative examination conducted on the above-stated specimen gave POSITIVE result to the tests for Methylamphetamine hydrochloride, a dangerous drug.

x x x x

CONCLUSION:

Specimen A through D contain Methylamphetamine hydrochloride, a dangerous drug.5 x x x

In his defense, accused-appellant adamantly denied he was arrested following a buy-bust operation. He testified that he was suddenly arrested between 8:00 and 9:00 in the evening of October 29, 2003 and not past midnight as the police stated. He was then with his son, who had been playing video games with him. While he was being taken into custody, he was handcuffed and was told, "Sumama ka sa amin dahil may nagrereklamo patungkol sa iyo." Accused-appellant asked, "Bakit ninyo ako hinuhuli?" and inquired on the charges against him. The police officers, however, just told him not to answer and to provide his defense at the precinct.6

Upon reaching the police headquarters he was led to a detention cell where he was asked if he knew a certain "Taba," to which he replied in the affirmative. PO3 Rangel then told him, "Hindi pala ikaw yung Arnel Taba." He then proposed to accused-appellant, "Sige ganito na lang meron ka bang isandaang libo?" Accused-appellant responded with "Saan ako kukuha ng ganyang kalaking pera samantalang nagka-karpintero lang ako." Negotiating with accused-appellant, PO3 Rangel retorted, "O sige singkwenta na lang." When accused-appellant answered that he did not have such a big amount of money, PO3 Rangel warned him, "Hindi mo ba alam na kakasuhan ka ng pagtutulak at pagbebenta ng droga?" Accused-appellant then asked how he can be charged with any offense when he was only playing a video game with his son in front of his brother’s house. To this, PO3 Rangel replied, "Sige para matapos na tayo magbigay ka na lang ng kinse tatanggalin ko na lang yung tulak." Finally, accused-appellant told him, "Sir, I don’t have that big an amount, if you want to incarcerate me I can do nothing."7

After the interrogation, PO1 Pacis took from his pocket PhP 100 and told accused-appellant, "Bro mag-softdrinks muna tayo" and handed over to him the money to be given to his companions. After accused-appellant held the money, PO1 Pacis retrieved it and told him, "Ay teka muna ipasok muna natin si Buda doon tayo mag-softdrinks sa canteen."8

The other defense witness, nine-year old Reymel, testified that accused-appellant was God-fearing and knew right from wrong. He recalled that accused-appellant, his father, was arrested around 8:00 in the evening since he was beside him playing a video game and he happened to look at the time. After finishing a game, accused-appellant dropped a coin so that they could play again. Before they could continue, however, police officers arrived and handcuffed accused-appellant. They alleged having a warrant for accused-appellant’s arrest. Reymel ran after accused-appellant while he was being boarded in a stainless steel jeep but his mother stopped him and sent him home. From then on accused-appellant was unable to go back to their house as he was detained at the Caloocan City Jail.9

On cross-examination, Reymel admitted that he had twice heard the words "warrant of arrest" only on television. The video game he was playing with his father at the time the latter was arrested was "Top Gear," a car racing challenge which could be played at one peso per game and lasts five minutes. After their game ended, his father dropped a few more coins so they could play again. They were playing in a room adjacent to his uncle Lito’s house. After his father was boarded in a vehicle, his mother, who had been cleaning, ran towards the house of his uncle Lito. After his father was detained, he heard nothing about the circumstances of the arrest being discussed in their house. He visited his father in jail and asked him when he would be coming home and the latter simply said "Balang araw."10

After trial, the RTC convicted accused-appellant of both charges. The dispositive portion of the RTC Decision reads:

WHEREFORE, premises considered, and the prosecution having established to a moral certainty the guilt of Accused REYNALDO CAPALAD y ESTO, this Court hereby renders judgment as follows:

1. In Criminal Case No. C-69458 for Violation of Section 5, Art. II of RA 9165, this Court in the absence of any aggravating circumstance hereby sentences said Accused to LIFE IMPRISONMENT, and to pay the fine of Five Hundred Thousand Pesos (P500,000.00) with subsidiary imprisonment in case of insolvency; and

2. In Criminal Case No. C-69459 for Violation of Section 11, Art. II of the same Act, this Court in the absence of any aggravating circumstance hereby sentences said Accused to a prison term of twelve (12) years, eight (8) months and one (1) day to seventeen (17) years and eight (8) months and to pay the fine of Three Hundred Thousand Pesos (P300,000.00), with subsidiary imprisonment in case of insolvency.

It is noteworthy to state that this Court considers the penalty of LIFE IMPRISONMENT meted upon the Accused in Criminal Case No. C-69458 for selling 0.04 [gram] of Methylamphetamine hydrochloride to be too stiff but that is the penalty imposable under R.A. 9165. Thus, this Court has no option but to apply the same. DURA LEX SED LEX.

Subject drug in both cases are declared confiscated and forfeited in favor of the government to be dealt with in accordance with law.11

On appeal before the CA, accused-appellant questioned the legality of his arrest. He disputed the prosecution witnesses’ claim that an entrapment operation took place. He also argued that the testimony of his son, Reymel, should have been given more weight.

The CA affirmed the lower court’s judgment. It ruled that all the elements for the successful prosecution of drugs were proved with moral certainty: (1) PO1 Pacis testified that the sale took place; (2) the illicit drug seized was identified, marked, and presented as evidence; and (3) PO1 Pacis testified that accused-appellant was the seller and he was the buyer. The CA agreed with the Solicitor General in finding the testimony of PO1 Pacis categorical, straightforward, and corroborated on its material points. It dismissed the allegation of frame-up as there was no clear and convincing proof that the police officers did not properly perform their duties or were motivated by ill will.

The CA, thus, disposed of the case as follows:

WHEREFORE, the assailed Joint Decision dated March 16, 2006 of the Regional Trial Court of Caloocan City, Branch 127, is hereby AFFIRMED in toto. No costs.

SO ORDERED.12

Accused-appellant filed a timely Notice of Appeal of the CA Decision.

On September 29, 2008, this Court required the parties to submit supplemental briefs if they so desired. The parties manifested their willingness to submit the case on the basis of the records already submitted.

The Issue

WHETHER THE COURT OF APPEALS ERRED IN FINDING ACCUSED-APPELLANT GUILTY OF THE CRIME CHARGED DESPITE THE PROSECUTION’S FAILURE TO PROVE HIS GUILT BEYOND REASONABLE DOUBT

Accused-appellant stresses that no entrapment took place. He places emphasis on his son’s testimony corroborating his version of events. He argues that the principle that a child is the best witness should have been applied to his case. Another matter he puts forth is the non-refutation of his charge of extortion. He laments that the trial court disregarded his accusation that the police officers tried to extort money from him in exchange for his freedom.

Our Ruling

We sustain accused-appellant’s conviction.

The accused in a prosecution for drug pushing or possession has to contend with the credibility contest that ensues between the accused and the police.13 In scrutinizing this issue, we are guided by the rule that findings of the trial courts, which are factual in nature and which involve the credibility of witnesses, are accorded respect when no glaring errors, gross misapprehension of facts, or speculative, arbitrary, and unsupported conclusions can be gathered from such findings. This rule is applied more rigorously where said findings are sustained by the CA.14

In the instant case, both the RTC and CA found the prosecution witnesses’ testimonies to be credible and corroborative on its material points. In contrast, the defenses proffered by accused-appellant have been found wanting, as underscored in the discussion below.

Extortion

Accused-appellant provides the following story to back up his claim of extortion: Police officers were looking for one "Arnel Taba." They mistook accused for "Arnel Taba" and he was unjustly arrested and brought to the police headquarters. Upon realizing their mistake, the police officers, particularly PO3 Rangel, offered to release accused upon his payment of PhP 100,000. He then replied that he did not have such a huge sum of money as he was merely a carpenter. The sum was allegedly lowered to PhP 50,000 and then to PhP 15,000 but accused-appellant still could not come up with the amount.

The question now is whether accused-appellant’s version of what happened is believable in the face of the evidence presented against him.

Charges of extortion and frame-up are frequently made in this jurisdiction. Courts are, thus, cautious in dealing with such accusations, which are quite difficult to prove in light of the presumption of regularity in the performance of the police officers’ duties. To substantiate such defense, which can be easily concocted, the evidence must be clear and convincing15 and should show that the members of the buy-bust team were inspired by any improper motive or were not properly performing their duty. Otherwise, the police officers’ testimonies on the operation deserve full faith and credit.161avvphi1

In the instant case, the defense of frame-up has not been substantiated by accused-appellant. No clear and convincing evidence has been adduced showing the police officers’ alleged extortion. As we have previously held, against the positive testimonies of the prosecution witnesses, accused-appellant’s plain denial of the offenses charged, unsubstantiated by any credible and convincing evidence, must simply fail.17 What is more, if accused-appellant were truly aggrieved, he could have filed a complaint against the arresting officers.18 We are, thus, constrained to uphold the presumption of regularity in the performance of duties by the police officers.

Alibi

Indeed, as the defense asserts, a child witness’ testimony should normally be found credible due to his unlikely propensity to be dishonest. This Court, however, finds the credibility of accused-appellant’s nine-year old son, Reymel, to be doubtful. His testimony is necessarily suspect, as he is accused-appellant’s close relative.19

Furthermore, Reymel allegedly heard the police officers barge in and claim that they had a warrant of arrest for accused-appellant. Yet on cross-examination, he admitted having only heard the words "warrant of arrest" on television. Besides, even if accused-appellant and his son were actually playing a video game around 8:00 in the evening of October 29, 2003, this does not refute the police officers’ testimonies that he was arrested at 1:00 a.m. the following morning after an entrapment operation. He could have very well finished playing with Reymel when the buy-bust operation took place.

All told, the elements necessary for the prosecution of illegal sale of drugs have been established by the prosecution. These are (1) the identities of the buyer and the seller, the object, and consideration; and (2) the delivery of the thing sold and the payment for it.20 What is material to the prosecution for illegal sale of dangerous drugs is the proof that the transaction or sale actually took place, coupled with the presentation in court of evidence of corpus delicti.21 These two elements were sufficiently established in court. Anent the first element, an examination of the records shows that the chain of custody over the drugs was unbroken. The prosecution was able to account for the drugs’ handling from the time it was seized until it was offered into evidence.22

Chain of Custody

Following the seizure of the three plastic sachets from accused-appellant, PO1 Manansala turned over the specimens to PO3 Moran, who marked the items "RCE-1" to "RCE-3," "RCE" being the initials of accused-appellant "Reynaldo Capalad y Esto." The specimens were turned over to the PNP Crime Laboratory per request of Inspector Cruz. The examination was assigned to Forensic Chemical Officer Dela Rosa who disclosed in his Physical Sciences Report No. D-1384-03 that the specimens tested positive for shabu. The second element was likewise established through PO1 Pacis and PO1 Manansala’s testimonies and

the presentation of the buy-bust money recovered from accused-appellant.

Based on the above findings, we sustain accused-appellant’s conviction.

As to the penalties imposed, Sec. 5 of Art. II, RA 9165 provides that any person who sells any dangerous drug shall be punished with life imprisonment to death and a fine ranging from five hundred thousand pesos (PhP 500,000) to ten million pesos (PhP 10,000,000). Sec. 11, Art. II of the same law punishes possession of shabu of quantities less than five (5) grams with imprisonment of twelve (12) years and one (1) day to twenty (20) years and a fine ranging from three hundred thousand pesos (PhP 300,000) to four hundred thousand pesos (PhP 400,000). The RTC, thus, meted the correct penalties in Criminal Case Nos. C-69458 and C-69459.

WHEREFORE, the appeal is DENIED. The CA Decision in CA-G.R. CR-H.C. No. 02108 finding accused-appellant guilty of the crimes charged is AFFIRMED.

SO ORDERED.

PRESBITERO J. VELASCO, JR.Associate Justice

WE CONCUR:

G.R. No. 175320               April 21, 2009

PEOPLE OF THE PHILPPINES, Appellee, vs.ERNESTO PEÑA y SARMIENTO, Appellant.

R E S O L U T I O N

CORONA, J.:

On August 28, 2003, appellant Ernesto Peña y Sarmiento was charged with violation of Sections 5 and 11 of RA1 91652 in the Regional Trial Court (RTC) of Makati City, Branch 643 under the following Informations:

Criminal Case No. 03-3299

That on or about the 27th day of August 2003 in the City of Makati, Philippines, a place under the jurisdiction of this Honorable Court, [appellant], not being lawfully authorized by law, did then and there willfully, unlawfully and feloniously sell, deliver and distribute [0.04] gram of metamphetamine hydrochloride (commonly known as shabu), a dangerous drug in consideration of P200, Philippine Currency.

CONTRARY TO LAW.

Criminal Case No. 03-3300

That on or about the 27th day of August 2003 in the City of Makati, Philippines, a place under the jurisdiction of this Honorable Court, [appellant], not being lawfully authorized to possess any dangerous drug and without the corresponding license or prescription, did then and there willfully, unlawfully and feloniously have in his possession, direct custody and control [0.3] gram of metamphetamine hydrochloride known as shabu, a dangerous drug.

CONTRARY TO LAW.

Upon arraignment, appellant pleaded not guilty.

During trial, the prosecution presented Rogelio Patacsil, Rommel Villarente and PO1 Herbert Ibias, members of the Makati Anti-Drug Abuse Council (MADAC) Cluster 6, who conducted the buy-bust operation resulting in appellant’s arrest.

An informant reported to the MADAC Cluster 6 head and Barangay Rizal barangay chairperson Ric Mandayu that a certain "Gabby" was selling shabu at E. Aguinaldo St. Pursuant to this tip, the MADAC surveyed the area and eventually identified Gabby to be appellant. Thus, Patacsil, Villarente and Ibias conducted a buy-bust operation on August 27, 2003.

Patacsil (acting as poseur-buyer) and the informant approached the appellant somewhere in E. Aguinaldo St. The latter introduced the former as one in need of shabu. Appellant then asked Patacsil how much he wanted to buy. Patacsil answered "dalawang piso" and gave appellant two marked P100 bills. Appellant then handed him a sachet containing a white crystalline substance.

Thereafter, Patacsil signaled Villarente and PO1 Ibias that the transaction had been consummated. Thus, they approached Patacsil and appellant. PO1 Ibias apprehended appellant and informed him of his rights. Thereafter, he asked appellant to empty his pocket and consequently recovered a sachet containing a crystalline substance and the marked P100 bills.

Appellant was thereafter brought to the MADAC office in Barangay Rizal. PO1 Ibias then turned over the sachets and marked bills to the investigator. Subsequently, the Philippine National Police crime laboratory confirmed that the crystalline substance from the sachets was indeed metamphetamine hydrocholoride (or shabu).

For his defense, appellant insisted that he was merely framed up. While he and his family were having lunch on August 27, 2003, Patacsil (accompanied by an unidentified person) barged into his home and "invited" him to the barangay hall. Approximately 100 meters from his house, Patacsil asked him to identify the persons whom he knew sold shabu. Because he was unable to point to anyone, he was the one arrested.

In a decision dated January 26, 2005, the RTC held that the prosecution proved appellant violated Sections 5 and 11 of RA 9165 beyond reasonable doubt.4 The MADAC operatives established the identities of

the poseur buyer and appellant and that an illegal drug was sold by appellant to the poseur buyer for a certain consideration. Moreover, they were able to show that appellant was not authorized to possess the illegal drug. Thus:

WHEREFORE, in view of the foregoing, judgment is rendered against [appellant] ERNESTO PEñA y SARMIENTO alias "GABBY" as follows:

1. Finding him, GUILTY beyond reasonable doubt of the crime of violation of Section 5 of RA 9165 (Criminal Case No. 03-3299) and sentencing him to suffer the penalty of life imprisonment and to pay a fine of P500,000;

2. Finding him, GUILTY beyond reasonable doubt of the crime of violation of Section 11 of RA 9165 (Criminal Case No. 03-3300) and considering that miniscule quantity of shabu involved which is 0.03 grams sentencing him to suffer the penalty of twelve years and 1 day and a fine of P300,000.

The Branch Clerk of Court is directed to transmit to the Philippine Drug Enforcement Agency (PDEA) the one plastic sachet of shabu (0.04) gram subject matter of Criminal Case No. 03-3299 and the one plastic sachet (0.03) gram subject of Criminal Case No. 03-3300 for said agency’s appropriate disposition.

SO ORDERED.

The Court of Appeals (CA), on intermediate appellate review,5 affirmed the RTC decision in toto.6

We affirm the findings of the RTC and the CA but modify the penalty in Criminal Case No. 03-3300.

There is no reason to disturb the factual findings of the RTC as affirmed by the CA. The prosecution established beyond doubt that appellant sold shabu to the poseur buyer for a consideration and that he had another sachet of the said substance in his possession.

Nonetheless, we modify the penalty in Criminal Case No. 03-3300 (for violation of Section 11 of RA 9165) since the courts a quo failed to apply the Indeterminate Sentence Law and imposed a straight penalty of 12 years and 1 day on appellant. The said provision provides that:

Section 11. Possession of Dangerous Drugs.

x x x x x x x x x

Otherwise, if the quantity involved is less than the foregoing quantities, the penalties shall be graduated as follows:

x x x x x x x x x

(3) Imprisonment of twelve (12) years and one (1) day to twenty (20) years and a fine ranging from Three hundred thousand pesos (P300,000) to Four hundred thousand pesos (P400,000), if the quantities of dangerous drugs are less than five (5) grams of opium, morphine, heroin, cocaine or cocaine hydrochloride, marijuana resin or marijuana resin oil, metamphetamine hydrochloride or "shabu" or other dangerous drugs such as, but not limited to MDMA or "ecstacy," PMA, TMA, LSD, GHB and those similarly designed or newly introduced drugs and their derivatives, without having any therapeutic value or if the quantity possesses is far behind therapeutic requirements; or less than three hundred (300) grams of marijuana. (emphasis supplied)

Appellant should suffer imprisonment for a minimum of 12 years and 1 day to a maximum of 20 years.

WHEREFORE, the July 25, 2006 decision of the Court of Appeals in CA-G.R. CR-H.C. No. 00710 is hereby MODIFIED. Appellant Ernesto Peña y Sarmiento is sentenced to suffer the penalty of life imprisonment and pay a fine of P500,000 in Criminal Case No. 03-3299. He is sentenced to suffer imprisonment for a minimum of 12 years and 1 day to a maximum of 20 years and to pay a fine of P300,000 in Criminal Case No. 03-3300.

SO ORDERED.