G.R. No. 88017 January 21, 1991
After an evaluation of the information thus received, a project
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
LO HO WING alias PETER LO, LIM CHENG HUAT alias ANTONIO LIM
and REYNALDO TIA y SANTIAGO, defendants. LO HO
WING alias PETER LO, defendant-appellant.
GANCAYCO, J.:
This case involves the unlawful transport of metamphetamine, a regulated
drug under Republic Act No. 6425, as amended. One of its derivatives is
metamphetamine hydrochloride, notoriously known in street parlance as
"shabu" or "poor man's cocaine."
Appellant Peter Lo, together with co-accused Lim Cheng
Huat alias Antonio Lim and Reynaldo Tia, were charged with a violation of
Section 15, Article III of the aforementioned statute otherwise known as the
Dangerous Drugs Act of 1972, before Branch 114 of the Regional Trial
Court of Pasay City. Only appellant and co-accused Lim Cheng Huat were
convicted. They were sentenced to suffer life imprisonment, to pay a fine of
P25,000.00 each, and to pay the costs. Their co-accused Reynaldo Tia
was discharged as a state witness. The pertinent portion of the information
reads as follows:
That on or about the 6th day of October, 1987, in Pasay City, Metro
Manila, and within the jurisdiction of this Honorable Court, the
above-named accused, conspiring and confederating together and
mutually helping one another, without authority of law, did then and
there willfully, unlawfully and feloniously deliver, dispatch or
transport 56 teabags of Metamphetamine, a regulated drug.
Contrary to law.1
The antecedent facts of the case as found by the trial court are as follows:
In July 1987, the Special Operations Group, a unit of the Criminal
Investigation Service (CIS) of the Philippine Constabulary (PC), received a
tip from one of its informers about an organized group engaged in the
importation of illegal drugs, smuggling of contraband goods, and
gunrunning.
codenamed "OPLAN SHARON 887" was created in order to bust the
suspected syndicate.
As part of the operations, the recruitment of confidential men and "deep
penetration agents' was carried out to infiltrate the crime syndicate. One of
those recruited was the discharged accused, Reynaldo Tia (hereinafter
referred to as Tia).
Tia was introduced to his co-accused Lim Cheng Huat (hereinafter referred
to as Lim) by another confidential agent named George on August 3, 1987.
Lim expressed a desire to hire a male travelling companion for his business
nips abroad. Tia offered his services and was hired.
Lim and Tia met anew on several occasions to make arrangements for a
trip to China. In the course of those meetings, Tia was introduced to Peter
Lo (hereinafter referred to as appellant), whom Tia found out to be the
person he was to accompany to China in lieu of Lim.
As a "deep penetration agent," Tia regularly submitted reports of his
undercover activities on the suspected criminal syndicate. Meanwhile, the
officer-in-charge of OPLAN SHARON 887, Captain Luisito Palmera, filed
with his superiors the reports submitted to him, and officially informed the
Dangerous Drugs Board of Tia's activities.
On October 4, 1987, appellant and Tia left for Hongkong on board a
Philippine Airlines flight. Before they departed, Tia was able to telephone
Captain Palmera to inform him of their expected date of return to the
Philippines as declared in his round-trip plane ticket-October 6, 1987 at two
o'clock in the afternoon.
The day after they arrived in Hongkong, Tia and appellant boarded a train
bound for Guangzhou, in the People's Republic of China. Upon arriving
there, they checked in at a hotel, and rested for a few hours. The pair
thereafter went to a local store where appellant purchased six (6) tin cans
of tea. Tia saw the paper tea bags when the cans were opened for
examination during the purchase. Afterwards, they returned to the hotel.
Appellant kept the cans of tea in his hotel room. That evening, Tia went to
appellant's room to talk to him. Upon entering, he saw two other men with
appellant. One was fixing the tea bags, while the other was burning
substance on a piece of aluminum foil using a cigarette lighter. Appellant
joined the second man and sniffed the smoke emitted by the burning
substance. Tia asked the latter what they would be bringing back to the
Philippines. He was informed that their cargo consisted of Chinese drugs.
Tia stayed in the room for about twenty minutes before going back to his
room to sleep.
The next day, October 6,1987, the two returned to Manila via a China
Airlines flight. Appellant had with him his red traveling bag with wheels.
Before departing from Guangzhou however, customs examiners inspected
their luggage. The tin cans of tea were brought out from the traveling bag
of appellant. The contents of the cans were not closely examined, and
appellant was cleared along with Tia.
The plane landed at the Ninoy Aquino International Airport (NAIA), then
named Manila International Airport, on schedule. Lim met the newly-arrived
pair at the arrival area. Lim talked to appellant, while Tia, upon being
instructed, looked after their luggage. After Lim and appellant finished their
conversation, the latter hailed a taxicab. Appellant and Tia boarded the
taxicab after putting their luggage inside the back compartment of the
vehicle. Lim followed in another taxi cab.
Meanwhile, a team composed of six operatives headed by Captain
Palmera was formed to act on the tip given by Tia. On the expected date of
arrival, the team proceeded to the NAIA. Captain Palmera notified the
Narcotics Command (NARCOM) Detachment at the airport for
coordination. After a briefing, the operatives were ordered to take strategic
positions around the arrival area. Two operatives stationed just outside the
arrival area were the first ones to spot the suspects emerging therefrom.
Word was passed on to the other members of the team that the suspects
were in sight. Appellant was pulling along his red traveling bag while Tia
was carrying a shoulder bag. The operatives also spotted Lim meeting their
quarry.
Upon seeing appellant and Tia leave the airport, the operatives who first
spotted them followed them. Along Imelda Avenue, the car of the
operatives overtook the taxicab ridden by appellant and Tia and cut into its
path forcing the taxi driver to stop his vehicle. Meanwhile, the other taxicab
carrying Lim sped away in an attempt to escape. The operatives
disembarked from their car, approached the taxicab, and asked the driver
to open the baggage compartment. Three pieces of luggage were retrieved
from the back compartment of the vehicle. The operatives requested from
the suspects permission to search their luggage. A tin can of tea was taken
out of the red traveling bag owned by appellant. Sgt. Roberto Cayabyab,
one of the operatives, pried the lid open, pulled out a paper tea bag from
the can and pressed it in the middle to feel its contents. Some crystalline
white powder resembling crushed alum came out of the bag. The sergeant
then opened the tea bag and examined its contents more closely.
Suspecting the crystalline powder to be a dangerous drug, he had the three
traveling bags opened for inspection. From the red traveling bag, a total of
six (6) tin cans were found, including the one previously opened. Nothing
else of consequence was recovered from the other bags. Tia and appellant
were taken to the CIS Headquarters in Quezon City for questioning.
Meanwhile, the second taxicab was eventually overtaken by two other
operatives on Retiro Street, Quezon City. Lim was likewise apprehended
and brought to the CIS Headquarters for interrogation.
During the investigation of the case, the six tin cans recovered from the
traveling bag of appellant were opened and examined. They contained a
total of fifty-six (56) paper tea bags with white crystalline powder inside
instead of tea leaves.
The tea bag opened by Sgt. Cayabyab during the search and seizure was
sent to the PC-INP Crime Laboratory for preliminary examination. Tests
conducted on a sample of the crystalline powder inside the tea bag yielded
a positive result that the specimen submitted was metamphetamine.
Samples from each of the fifty-six (56) tea bags were similarly tested. The
tests were also positive for metamphetamine. Hence, the three suspects
were indicted.
In rendering a judgment of conviction, the trial court gave full credence to
the testimonies of the government anti-narcotics operatives, to whom the
said court applied the well-settled presumption of regularity in the
performance of official duties.
Appellant now assigns three errors alleged to have been committed by the
trial court, namely:
I.
 THE TRIAL COURT ERRED IN NOT DECLARING THE SEARCH
AND SEIZURE ON THE ACCUSED AS ILLEGAL.
II.
THE TRIAL COURT ERRED IN FINDING THE ACCUSED GUILTY
OF DELIVERING, DISPATCHING OR TRANSPORTING
METAMPHETAMINE, A REGULATED DRUG.
III.
THE TRIAL COURT ERRED IN DISCHARGING REYNALDO TIA
TO TESTIFY FOR THE PROSECUTION.2
We affirm.
Anent the first assignment of error, appellant contends that the warrantless
search and seizure made against the accused is illegal for being violative
of Section 2, Article III of the Constitution. He reasons that the PC-CIS
officers concerned could very well have procured a search warrant since
they had been informed of the date and time of a arrival of the accused at
the NAIA well ahead of time, specifically two (2) days in advance. The fact
that the search and seizure in question were made on a moving vehicle,
appellant argues, does not automatically make the warrantless search
herein fall within the coverage of the well-known exception to the rule of the
necessity of a valid warrant to effect a search because, as aforementioned,
the anti-narcotics agents had both time and opportunity to secure a search
warrant.
The contentions are without merit. As correctly averred by appellee, that
search and seizure must be supported by a valid warrant is not an absolute
rule. There are at least three (3) well-recognized exceptions thereto. As set
forth in the case of Manipon, Jr. vs. Sandiganbayan,3 these are: [1] a
search incidental to an arrest, [2] a search of a moving vehicle, and [3]
seizure of evidence in plain view (emphasis supplied). The circumstances
of the case clearly show that the search in question was made as regards a
moving vehicle. Therefore, a valid warrant was not necessary to effect the
search on appellant and his co-accused.
In this connection, We cite with approval the averment of the Solicitor
General, as contained in the appellee's brief, that the rules governing
search and seizure have over the years been steadily liberalized whenever
a moving vehicle is the object of the search on the basis of practicality. This
is so considering that before a warrant could be obtained, the place, things
and persons to be searched must be described to the satisfaction of the
issuing judge—a requirement which borders on the impossible in the case
of smuggling effected by the use of a moving vehicle that can transport
contraband from one place to another with impunity.4
We might add that a warrantless search of a moving vehicle is justified on
the ground that "it is not practicable to secure a warrant because the
vehicle can be quickly moved out of the locality or jurisdiction in which the
warrant must be sought."5
In the instant case, it was firmly established from the factual findings of the
trial court that the authorities had reasonable ground to believe that
appellant would attempt to bring in contraband and transport it within the
country. The belief was based on intelligence reports gathered from
surveillance activities on the suspected syndicate, of which appellant was
touted to be a member. Aside from this, they were also certain as to the
expected date and time of arrival of the accused from China. But such
knowledge was clearly insufficient to enable them to fulfill the requirements
for the issuance of a search warrant. Still and all, the important thing is that
there was probable cause to conduct the warrantless search, which must
still be present in such a case.
The second assignment of error is likewise lacking in merit. Appellant was
charged and convicted under Section 15, Article III of Republic Act No.
6425, as amended, which reads:
The penalty of life imprisonment to death and a fine ranging from
twenty thousand to thirty thousand pesos shall be imposed upon
any person who, unless authorized by law, shall sell, dispose,
deliver, transport or distribute any regulated drug (emphasis
supplied).
The information charged the accused of delivering, transporting or
dispatching fifty-six (56) tea bags containing metamphetamine, a regulated
drug. The conjunction "or' was used, thereby implying that the accused
were being charged of the three specified acts in the alternative. Appellant
argues that he cannot be convicted of "delivery" because the term
connotes a source and a recipient, the latter being absent under the facts
of the case. It is also argued that "dispatching' cannot apply either since
appellant never sent off or disposed of drugs. As for "transporting,"
appellant contends that he cannot also be held liable therefor because the
act of transporting necessarily requires a point of destination, which again
is non- existent under the given facts.
The contentions are futile attempts to strain the meaning of the operative
acts of which appellant and his co-accused were charged in relation to the
facts of the case. There is no doubt that law enforcers caught appellant and
his co-accused in flagrante delicto of transporting a prohibited drug. The
term "transport" is defined as "to carry or convey from one place to
another."6 The operative words in the definition are "to carry or convey."
The fact that there is actual conveyance suffices to support a finding that
the act of transporting was committed. It is immaterial whether or not the
place of destination is reached. Furthermore, the argument of appellant
gives rise to the illogical conclusion that he and his co- accused did not
intend to bring the metamphetamine anywhere, i.e. they had no place of
destination.
The situation in the instant case is one where the transport of a prohibited
drug was interrupted by the search and arrest of the accused. Interruption
necessarily infers that an act had already been commenced. Otherwise,
there would be nothing to interrupt.
Therefore, considering the foregoing, since the information included the
acts of delivery, dispatch or transport, proof beyond reasonable doubt of
the commission of any of the acts so included is sufficient for conviction
under Section 15, Article III of Republic Act No. 6425, as amended.
Moreover, the act of transporting a prohibited drug is a malum
prohibitum because it is punished as an offense under a special law. It is a
wrong because it is prohibited by law. Without the law punishing the act, it
cannot be considered a wrong. As such, the mere commission of said act
is what constitutes the offense punished and suffices to validly charge and
convict an individual caught committing the act so punished, regardless of
criminal intent.7
As to the third assigned error, appellant contests the discharge of accused
Reynaldo Tia to testify for the prosecution on the ground that there was no
necessity for the same. Appellant argues that deep penetration agents
such as Tia "have to take risks and accept the consequences of their
actions."8 The argument is devoid of merit. The discharge of accused Tia
was based on Section 9, Rule 119 of the Rules of Court, which reads in
part:
Sec. 9. Discharge of the accused to be state witness. — When two
or more persons are jointly charged with the commission of any
offense, upon motion of the prosecution before resting its case, the
court may direct one or more of the accused to be discharged with
their consent so that they may be witnesses for the state . . .
(emphasis supplied).
As correctly pointed out by the Solicitor General, the discharge of an
accused is left to the sound discretion of the lower court.1âwphi1 The trial
court has the exclusive responsibility to see that the conditions prescribed
by the rule exist.9 In the instant case, appellant does not allege that any of
the conditions for the discharge had not been met by the prosecution.
Therefore, the discharge, as ordered by the trial court, stands.
Finally, appellant alleges that the testimony of Sgt. Roberto Cayabyab
regarding the facts surrounding the commission of the offense proves that
the discharge of accused Tia is unnecessary. The allegation is baseless.
Appellant himself admits that the sergeant's testimony corroborates the
testimony of the discharged accused. The fact of corroboration of the
testimonies bolsters the validity of the questioned discharge precisely
because paragraph (a) of the aforequoted rule on discharge requires that
the testimony be substantially corroborated in its material points. The
corroborative testimony of the PC-CIS operative does not debunk the claim
of the prosecution that there is absolute necessity for the testimony of
accused Tia.
WHEREFORE, the decision appealed from is hereby AFFIRMED in
toto and the appeal is thereby DISMISSED. No costs.
SO ORDERED.
Narvasa, Cruz, Griño-Aquino and Medialdea, JJ., concur.
G.R. No. 196966 October 23, 2013
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
MICHAEL MAONGCO y YUMONDA and PHANS BANDALI y SIMPAL, Accused-
Appellants.
DECISION
LEONARDO-DE CASTRO, J.:
On appeal is the Decision1 dated September 6, 2010 of the Court of Appeals in
CA-G.R. CR.-H.C. No. 03505, which affirmed in toto the Decision2 dated June 11,
2008 of the Regional Trial Court RTC), Branch 82, Quezon City, in Criminal Case
Nos. Q-04-127731-32, finding accused-appellants Michael Y. Maongco Maongco)
and Phans S. Bandali Bandali) guilty beyond reasonable doubt of violating Article
II, Section 5 of Republic Act No. 9165, otherwise known as the Dangerous Drugs
Act of 2002.
Accused-appellants were separately charged for illegally dispensing, delivering,
transporting, distributing, or acting as brokers of dangerous drugs under the
following amended Informations:
[Criminal Case No. Q-04-127731]
The undersigned accuses MICHAEL MAONGCO y YUMONDA for Violation of
Section 5, Article II, R.A. 9165 (Comprehensive Dangerous Drugs Act of 2002),
committed as follows:
That on or about the 19th day of June, 2004 in Quezon City, Philippines, the said
accused, not being authorized by law to sell, dispense, deliver, transport or
distribute any dangerous drug, did, then and there willfully and unlawfully
dispense, deliver, transport, distribute or act as broker in the said transaction, four
point fifty (4.50) grams of Methylamphetamine hydrochloride, a dangerous drug. 3
[Criminal Case No. Q-04-127732]
The undersigned accuses PHANS BANDALI y SIMPAL for Violation of Section 5,
Article II, R.A. 9165 (Comprehensive Dangerous Drugs Act of 2002), committed as
follows:
That on or about the 19th day of June, 2004 in Quezon City, Philippines, the said
accused, not being authorized by law to sell, dispense, deliver, transport or
distribute any dangerous drug, did, then and there willfully and unlawfully
dispense, deliver, transport, distribute or act as broker in the said transaction, four
point forty-five (4.45) grams of Methylamphetamine hydrochloride, a dangerous
drug.4
When arraigned on September 13, 2004, both accused-appellants pleaded not
guilty.5
During trial, the prosecution presented the testimonies of Police Officer (PO) 1
Dominador Arugay (Arugay)6 and PO2 Vener Ong (Ong),7 who arrested accused-
appellants. The testimonies of Police Inspector (P/Insp.) Erickson Calabocal
(Calabocal),8 the forensic chemist, and Senior Police Officer (SPO) 1 Adonis Sugui
(Sugui),9 the post investigating officer, were dispensed with after the defense
agreed to a stipulation of the substance of the two witnesses’ testimonies, but with
the qualification that said witnesses had no personal knowledge of the
circumstances surrounding accused-appellants’ arrest and the source of the plastic
sachets of shabu.
The object and documentary evidence of the prosecution, all admitted by the
RTC,10 consisted of the Request for Laboratory Examination;11 an Improvised
Envelope containing the plastic sachets of suspected methamphetamine
hydrochloride, more popularly known as shabu;12 P/Insp. Calabocal’s Chemistry
Report No. D-360-04;13 P/Insp. Calabocal’s Certification14 stating that the contents
of the plastic sachets tested positive for methamphetamine hydrochloride; PO1
Arugay’s Sinumpaang Salaysay;15 PO2 Ong’s Sinumpaang Salaysay;16 and the
Referral of the case to the Prosecutor’s Office of Quezon City. 17
The prosecution’s evidence presented the following version of the events leading
to accused-appellants’ arrests.
Based on a tip from a confidential informant, the Station Anti-Illegal Drugs of the
Navotas City Police conducted a special operation on June 18, 2004, which
resulted in the arrest of a certain Alvin Carpio (Carpio) for illegal possession of
dangerous drugs and seizure from Carpio’s possession of 15 heat-sealed plastic
sachets containing shabu . When questioned by the police, Carpio admitted that
the shabu came from accused-appellant Maongco. Consequently, the police
planned an operation to apprehend accused-appellant Maongco and formed a
team for this purpose, composed of PO1 Arugay, PO2 Ong, PO2 Geoffrey Huertas
(Huertas), and PO1 Jesus del Fierro (Del Fierro).
On June 19, 2004, after coordination with the Philippine Drug Enforcement Agency
(PDEA), the police team was briefed about the operation. The police team allowed
Carpio to talk to accused-appellant Maongco on the cellphone to arrange for a sale
transaction of shabu. At around 10:30 in the morning, the police team,
accompanied and guided by Carpio, proceeded to the vicinity of Quezon corner
Roces Avenues in Quezon City frequented by accused-appellant Maongco. PO1
Arugay, PO2 Ong, and Carpio rode a taxi, while PO1 Del Fierro and PO2 Huertas
followed in an owner-type jeep. Carpio spotted accused-appellant Maongco at a
waiting shed and pointed out the latter to the police. PO2 Arugay alighted from the
taxi and approached accused-appellant Maongco. PO2 Arugay introduced himself
to accused-appellant Maongco as Carpio’s cousin, and claimed that Carpio was
sick and could not be there personally. PO2 Arugay then asked from accused-
appellant Maongco for Carpio’s order of " dalawang bulto." Accused-appellant
Maongco drew out from his pocket a sachet of shabu and showed it to PO2
Arugay. When PO2 Arugay got hold of the sachet of shabu , he immediately
revealed that he was a police officer, arrested accused-appellant Maongco, and
apprised the latter of his constitutional rights.
When the police team questioned accused-appellant Maongco as to the other "
bulto " of shabu Carpio had ordered, accussed-appellant disclosed that the same
was in the possession of accused-appellant Bandali, who was then at Jollibee
Pantranco branch along Quezon Avenue. The police team, with Carpio and
accused-appellant Maongco, went to the said restaurant where accused-appellant
Maongco identified accused-appellant Bandali to the police team as the one
wearing a blue shirt. PO2 Ong approached accused-appellant Bandali and
demanded from the latter the other half of the drugs ordered. Accused-appellant
Bandali voluntarily handed over a sachet of shabu to PO2 Ong. Thereafter, PO2
Ong apprised accused-appellant Bandali of his constitutional rights and arrested
him.
other prior to their arrests and they were illegally arrested, extorted for money,
physically beaten, and framed-up by the police.
On June 11, 2008, the RTC promulgated its Decision finding accused-appellants
guilty beyond reasonable doubt of illegally selling shabu, penalized under Article II,
Section 5 of Republic Act No. 9165, to wit:
WHEREFORE, premises considered, judgment is hereby rendered finding
accused MICHAEL MAONGCO y YUMONDA, accused in Ciminal Case No. Q-04-
127731 and PHANS BANDALI y SIMPAL, accused in Ciminal Case No. Q-04-
127732, both guilty beyond reasonable doubt of violations of Section 5, Article II of
R.A. No. 9165. Accordingly, they are hereby sentenced to suffer the penalty of
LIFE IMPRISONMENT and each to pay a fine in the amount of Five Hundred
Thousand (₱500,000.00) Pesos.19
Accused-appellants appealed to the Court of Appeals. In their Brief, 20 accused-
appellants imputed the following errors on the part of the RTC:
I
THE TRIAL COURT GRAVELY ERRED IN GIVING FULL WEIGHT AND
CREDENCE TO THE PROSECUTION’S EVIDENCE NOTWITHSTANDING ITS
FAILURE TO PROVE THE IDENTITY AND INTEGRITY OF THE SHABU
ALLEGEDLY SEIZED.

The police team first brought accused-appellants to the East Avenue Medical II
Center for medical examination to prove that accused-appellants sustained no
physical injuries during their apprehension. Afterwards, the police team brought THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-
accused-appellants to the police station in Navotas City. At the police station, PO1 APPELLANTS DESPITE THE FAILURE TO COMPLY WITH THE "OBJECTIVE
Arugay marked the sachet of shabu from accused-appellant Maongco with the TEST" IN BUY-BUST OPERATIONS.
initials "MMY," while PO2 Ong marked the sachet of shabu from accused-appellant
Bandali with the initials "PBS." PO1 Arugay and PO2 Ong turned over the two III
sachets of shabu to the custody of PO1 Del Fierro and SPO1 Sugui. The sachets
of shabu were then inventoried, photographed in the presence of accused-
THE TRIAL COURT ERRED IN UPHOLDING THE PRESUMPTION OF
appellants, and submitted for laboratory examination.
REGULARITY IN THE PERFORMANCE OF OFFICIAL DUTY BY THE POLICE
OFFICERS DESPITE THE PATENT IRREGULARITIES IN THE BUY-BUST
P/Insp. Calabocal received the sachets of shabu for chemical analysis. P/Insp. OPERATION.
Calabocal’s examination revealed that the contents of the sachets marked "MMY"
and "PBS" weighed 4.50 grams and 4.45 grams, respectively, and both tested
IV
positive for methamphetamine hydrochloride.

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-

When the defense’s turn to present evidence came, the accused-appellants took
APPELLANTS DESPITE THE PROSECUTION’S FAILURE TO PROVE THEIR
the witness stand.18 Accused-appellants asserted that they did not know each
GUILT BEYOND REASONABLE DOUBT.21
Plaintiff-appellee countered in its Brief22 that:
I.
THE COURT A QUO PROPERLY ADMITTED THE SHABU IN EVIDENCE.
II.
THERE WAS A LEGITIMATE "BUY-BUST" OPERATION IN THE CASE AT BAR
WHICH RESULTED IN THE LAWFUL ARREST, PROSECUTION AND
CONVICTION OF APPELLANTS.
III.
THE COURT A QUO PROPERLY FOUND APPELLANTS GUILTY BEYOND
REASONABLE DOUBT OF THE CRIMES CHARGED.23
In its Decision dated September 6, 2010, the Court of Appeals found no palpable
error in the judgment of conviction rendered by the RTC against accused-
appellants and rejected accused-appellants’ argument that the prosecution failed
to establish the factual details constituting the essential elements of an illegal sale
of dangerous drugs. According to the appellate court, Article II, Section 5 of
Republic Act No. 9165 penalizes not only those who sell dangerous drugs, but also
those who "trade, administer, dispense, deliver, give away to another, distribute,
dispatch in transit or transport any dangerous drug," without being authorized by
law. In this case, the prosecution was able to prove with moral certainty that
accused-appellants were caught in the act of illegally delivering, giving away to
another, or distributing sachets of shabu. In the end, the Court of Appeals decreed:
WHEREFORE, premises considered, the instant appeal is DENIED. The assailed
decision of the Regional Trial Court of Quezon City, Branch 82 dated June 11,
2008 convicting appellants for violation of Section 5, Article II of Republic Act No.
9165 is hereby AFFIRMED. No costs.24
Hence, this appeal.
Since accused-appellants had opted not to file any supplemental briefs, the Court
considers the same issues and arguments raised by accused-appellants before
the Court of Appeals.
Accused-appellants stress that for a judgment of conviction for the illegal sale of
dangerous drugs, the identities of the buyer and seller, the delivery of the drugs,
and the payment in consideration thereof, must all be duly proven. However,
accused-appellants lament that in their case, the prosecution failed to establish by
evidence these essential elements of the alleged sale of shabu. Accused-
appellants add that the prosecution was also unable to show that the integrity and
evidentiary value of the seized shabu had been preserved in accordance with
Section 21(a) of the Implementing Rules of Republic Act No. 9165. Accused-
appellants point out that PO1 Arugay did not mention the time and place of the
marking of the sachet of shabu purportedly sold to him by accused-appellant
Maongco; while PO2 Ong admitted that he marked the sachet of shabu he
received from accused-appellant Bandali only at the police station. Both PO1
Arugay and PO2 Ong merely provided an obscure account of the marking of the
sachets of shabu, falling short of the statutory requirement that the marking of the
seized drugs be made immediately after seizure and confiscation.
The appeal is partly meritorious.
In the case of accused-appellant Maongco, the Court finds that the RTC and the
Court of Appeals both erred in convicting him in Criminal Case No. Q-04-127731
for the illegal sale of shabu under Article II, Section 5 of Republic Act No. 9165.
The evidence on record does not support accused-appellant Maongco’s conviction
for said crime, especially considering the following answers of prosecution witness
PO1 Arugay during the latter’s cross-examination, practically admitting the lack of
consideration/payment for the sachet of shabu:
Q. What did you tell Michael Maongco?
A. I introduced myself as the cousin of Alvin, sir.
Q. After that, you immediately arrested him?
A. Yes, sir. I first asked my order of shabu.
Q. In your affidavit, you testified that you asked one "bulto" of shabu?
A. More or less five grams of shabu, sir.
Q. Did the accused ask any in exchange of that shabu?
A. No, sir.
Q. Immediately, you arrested him already?
A. After I got my order from him, I introduced myself as policeman, sir.
COURT:
Who gave you that one "bulto" of shabu?
A. I have the money but he did not ask it from me, your Honor.
Q. Was there any arrangement between you and Maongco as to how much this
one "bulto" cost? A. Alvin and Maongco were the ones who talked.
xxxx
Q. Meaning to say, it was Maongco and Alvin who talked in Quezon Avenue?
A. They talked over the cellphone.
xxxx
Q. But you did not hear the conversation?
A. No, sir.25 (Emphases supplied.)
Inarguably, consideration/payment is one of the essential elements of illegal sale
of dangerous drugs, without which, accused-appellant Maongco’s conviction for
said crime cannot stand. Nonetheless, accused-appellant Maongco is still not
absolved of criminal liability.
A review of the Information in Criminal Case No. Q-04-127731 readily reveals that
accused-appellant Maongco was not actually charged with illegal sale of shabu.
Said Information specifically alleged that accused-appellant Maongco "willfully and
unlawfully dispensed, delivered, transported, distributed or acted as broker" in the
transaction involving 4.50 grams of shabu. These acts are likewise punishable
under Article II, Section 5 of Republic Act No. 9165.
Article II, Section 5 of Republic Act No. 9165 provides:
SECTION 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 (₱500,000.00) to Ten million pesos
(₱10,000,000.00) 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. (Emphasis supplied.)
Several of the acts enumerated in the foregoing provision have been explicitly
defined under Article I, Section 3 of the same statute, viz:
Section 3. Definitions. As used in this Act, the following terms shall mean:
(a) Administer. – Any act of introducing any dangerous drug into the body of any
person, with or without his/her knowledge, by injection, inhalation, ingestion or
other means, or of committing any act of indispensable assistance to a person in
administering a dangerous drug to himself/herself unless administered by a duly
licensed practitioner for purposes of medication.
xxxx
(k) Deliver. – Any act of knowingly passing a dangerous drug to another,
personally or otherwise, and by any means, with or without consideration.
xxxx
(m) Dispense. – Any act of giving away, selling or distributing medicine or any
dangerous drug with or without the use of prescription.
xxxx
(ii) Sell. – Any act of giving away any dangerous drug and/or controlled precursor
and essential chemical whether for money or any other consideration.
(jj) Trading. – Transactions involving the illegal trafficking of dangerous drugs
and/or controlled precursors and essential chemicals using electronic devices such
as, but not limited to, text messages, e-mail, mobile or landlines, two-way radios,
internet, instant messengers and chat rooms or acting as a broker in any of such
transactions whether for money or any other consideration in violation of this Act.
(Emphasis supplied.)
As for the illegal delivery of dangerous drugs, it must be proven that (1) the
accused passed on possession of a dangerous drug to another, personally or
otherwise, and by any means; (2) such delivery is not authorized by law; and (3)
the accused knowingly made the delivery. Worthy of note is that the delivery may
be committed even without consideration.
It is not disputed that accused-appellant Maongco, who was working as a taxi
driver at the time of his arrest,26 had no authority under the law to deliver any
dangerous drug. The existence of the two other elements was established by PO1
Arugay’s testimony that provided the following details:
FISCAL ANTERO:
Q. Why did you arrest this certain Alvin?
A. I asked from him my order of "dalawang bulto" and he asked me who am I and I
told him that I am the cousin of Alvin and that Alvin cannot come because he was
sick, sir.
Q. What happened after you said that?
A. I asked from him my order and then he took something out from his pocket and
he showed it to me. It was a shabu, sir.

A. For violation of R.A. 9165, sir. Q. What happened next?

Q. What happened when you arrested this alias Alvin? A. After I got the order we arrested Michael, sir.

A. We investigated on where the shabu he was selling came from. xxxx

Q. What was the result of your inquiry as to the source of the shabu? ATTY. BARTOLOME:

A. We learned that the source came from a certain Michael, sir. Q. What was Maongco doing at that time?

Q. When you found out that the source came from a certain Michael, what did you A. He was staying in a waiting shed along Quezon Avenue, sir.
do, Mr. Witness?
Q. What was he doing there?
A. We formed a team and we made a Pre-Operation Report, sir.
A. He was waiting for somebody, sir.
Q. Aside from mentioning about the source as Michael, what are the other details?
Q. Immediately you approached Maongco?
A. No more, sir. On June 19, 2004 at about 10:30 a.m., our group was dispatched
in Quezon Avenue corner Roces Avenue. A. He was pointed by Alvin, sir. I alighted from the taxi.

xxxx Q. What was his reaction when you approached him?

Q. What happened when you arrived in that area? A. He was a bit surprised, sir.

A. We went to the place where Michael is always staying and when he arrived he Q. What did you tell Michael Maongco?
was pointed by Alvin, sir.
A. I introduced myself as the cousin of Alvin, sir.
Q. What did you do when Alvin pointed to Michael?
Q. After that, you immediately arrested him?
A. I pretended to be the cousin of Alvin who was going to get the order.
A. Yes, sir. I first asked my order my shabu.
Q. What happened when you approached this Michael?
Q. In your Affidavit, you testified that you asked one "bulto" of shabu? Q. What happened when this man was arrested by Arugay?

A. More or less five grams of shabu, sir.27 (Emphases supplied.) A. We looked for the other "bulto" because according to Michael there were two
and it was in the possession of Phans, sir.
There was a prior arrangement between Carpio and accused-appellant Maongco.
When PO1 Arugay appeared for his purportedly indisposed cousin, Carpio, and THE COURT:
asked for his order of shabu, accused-appellant Maongco immediately understood
what PO1 Arugay meant. Accused-appellant Maongco took out a sachet of shabu Q. Where did you look for him?
from his pocket and handed over possession of said sachet to PO1 Arugay.
A. At Jollibee, Pantranco, your Honor.
Based on the charges against accused-appellant Maongco and the evidence
presented by the prosecution, accused-appellant Maongco is guilty beyond xxxx
reasonable doubt of illegal delivery of shabu under Article II, Section 5 of Republic
Act No. 9165.
Q. Did you find him in Jollibee?
For the same reasons cited in the preceding paragraphs, the RTC and the Court of
Appeals also erred in convicting accused-appellant Bandali for the crime of illegal A. Yes, your Honor, because according to Michael Maongco he was wearing blue
sale of shabu in Criminal Case No. Q-04-127732. T-shirt.

The Information against accused-appellant Bandali, same as that against accused- Q. What did you do when you found him at Jollibee?
appellant Maongco, charged him with "willfully and unlawfully dispensing,
delivering, transporting, distributing or acting as broker" in the transaction involving A. I went near him and asked him to put out the other shabu in his possession,
4.45 grams of shabu . However, unlike accused-appellant Maongco, accused- your Honor.
appellant Bandali cannot be convicted for illegal delivery of shabu under Article II,
Section 5 of Republic Act No. 9165, given that the circumstances surrounding the Q. You yourself?
arrest of the latter were radically different from those of the former.
A. My companions were just there, your Honor.
PO2 Ong testified:
Q. You yourself approached him?
Q. How did this Arugay arrest this Michael?
A. Yes, your Honor.
A. I was only a back-up of Arugay, sir.
Q. When you demanded the production of what?
Q. What did you see, if any?
A. One (1) bulto of shabu, your Honor.
A. I saw that he recovered one (1) heat-sealed transparent plastic sachet, sir.
PROS. ANTERO:
Q. He recovered it from whom?
Q. Why do you know that he was Bandali?
A. From Michael Maongco, sir.
A. Because Michael Maongco was pointing to him that he was Phans Bandali, sir.
xxxx
Q. Was Michael with you when you went to that Jollibee?
A. Yes, sir.
Q. What happened when you demanded from Bandali this shabu?
A. He voluntarily put out the shabu, sir.
Q. What happened next, Mr. Witness?
A. I told him of his violation and his rights, sir.28 PO2 Ong further confirmed during
his cross-examination:
Q. Now, Mr. Witness, you mentioned a while ago that you arrested Phans Bandali
inside Jollibee, Pantranco.1avvphi1 Is that correct?
A. Yes, sir.
Q. And you did not buy from him a shabu, Mr. Witness?
A. No, sir.
Q. You just demanded from him a plastic sachet?
A. Yes, sir.29 (Emphases supplied.)
In accused-appellant Bandali’s case, it cannot be said that he knowingly passed on
the sachet of shabu in his possession to PO2 Ong. PO2 Ong approached
accused-appellant Bandali as a police officer, absent any pretense, and demanded
that the latter bring out the other sachet of shabu. Accused-appellant Bandali’s
voluntary production of the sachet of shabu in his possession was in subservience
to PO2 Ong’s authority. PO2 Ong then acquired the sachet of shabu from
accused-appellant Bandali by seizure, not by delivery. Even if there may be doubt
as to whether or not accused-appellant Bandali was actually aware at that moment
that PO2 Ong was a police officer, the ambiguity would still be resolved in
accused-appellant Bandali’s favor.
This does not mean though that accused-appellant Bandali goes scot-free. The
evidence for the prosecution did establish that accused-appellant Bandali
committed illegal possession of dangerous drugs, penalized under Article II,
Section 11 of Republic Act No. 9165.
For the prosecution of illegal possession of dangerous drugs to prosper, the
following essential elements must be proven, namely: (1) the accused is in
possession of an item or object that is identified to be a prohibited drug; (2) such
possession is not authorized by law; and (3) the accused freely and consciously
possess the said drug.30 Accused-appellant Maongco informed the police officers
that the other sachet of shabu was in the possession of accused-appellant Bandali.
Accused-appellant Bandali herein was in possession of the sachet of shabu as he
was sitting at Jollibee Pantranco branch and was approached by PO2 Ong. Hence,
accused-appellant Bandali was able to immediately produce and surrender the
said sachet upon demand by PO2 Ong. Accused-appellant Bandali, admittedly
jobless at the time of his arrest,31 did not have any authority to possess shabu. And
as to the last element, the rule is settled that possession of dangerous drugs
constitutes prima facie evidence of knowledge or animus possidendi, which is
sufficient to convict an accused in the absence of a satisfactory explanation of
such possession.32
But can accused-appellant Bandali be convicted for illegal possession of
dangerous drugs under Article II, Section 11 of Republic Act No. 9165 when he
was charged with illegal dispensation, delivery, transportation, distribution or acting
as broker of dangerous drugs under Article II, Section 5 of the same statute? The
Court answers in the affirmative.
Rule 120, Section 4 of the Rules of Court governs situations where there is a
variance between the crime charged and the crime proved, to wit:
Sec. 4. Judgment in case of variance between allegation and proof. – When there
is variance between the offense charged in the complaint or information and that
proved, and the offense as charged is included in or necessarily includes the
offense proved, the accused shall be convicted of the offense proved which is
included in the offense charged, or of the offense charged which is included in the
offense proved.
Well-settled in jurisprudence that the crime of illegal sale of dangerous drugs
necessarily includes the crime of illegal possession of dangerous drugs.33 The
same ruling may also be applied to the other acts penalized under Article II,
Section 5 of Republic Act No. 9165 because for the accused to be able to trade,
administer, dispense, deliver, give away to another, distribute, dispatch in transit,
or transport any dangerous drug, he must necessarily be in possession of said
drugs.
At the outset of the trial, both parties had admitted the laboratory results showing
that the contents of the two sachets tested positive for shabu, although accused-
appellants contest the identity and integrity of the sachets and contents actually
tested since the chain of custody of the same was not satisfactorily established in
accordance with Republic Act No. 9165 and its implementing rules.
The Court disagrees with accused-appellants as the police officers had
substantially complied with the chain of custody rule under Section 21(a) of the
Implementing Rules of Republic Act No. 9165. The Court had previously held that
in dangerous drugs cases, the failure of the police officers to make a physical
inventory, to photograph, and to mark the seized drugs at the place of arrest do not
render said drugs inadmissible in evidence or automatically impair the integrity of
the chain of custody of the same.34 The Court had further clarified, in relation to the
requirement of marking the drugs "immediately after seizure and confiscation," that
the marking may be undertaken at the police station rather than at the place of
arrest for as long as it is done in the presence of the accused and that what is of
utmost importance is the preservation of its integrity and evidentiary value.35
The Court finds no fault on the part of both the RTC and the Court of Appeals in
giving more weight and credence to the testimonies of the police officers vis-à-vis
those of the accused-appellants. Questions as to the credibility of witnesses are
matters best left to the appreciation of the trial court because of its unique
opportunity of having observed that elusive and incommunicable evidence of the
witnesses’ deportment on the stand while testifying, which opportunity is denied to
the reviewing tribunal.36
Moreover, accused-appellants’ uncorroborated defenses of denial and claims of
frame-up cannot prevail over the positive testimonies of the prosecution witnesses,
coupled with the presentation in court of the corpus delicti. The testimonies of
police officers who caught the accused-appellants in flagrante delicto are usually
credited with more weight and credence, in the absence of evidence that they have
been inspired by an improper or ill motive, than the defenses of denial and frame-
up of an accused which have been invariably viewed with disfavor for it can easily
be concocted. In order to prosper, the defenses of denial and frame-up must be
proved with strong and convincing evidence,37 which accused-appellants failed to
present in this case.
Lastly, the Court determines the proper penalties to be imposed upon accused-
appellants.1âwphi1
Under Article II, Section 5 of Republic Act No. 9165, the penalties for the illegal
delivery of dangerous drugs, regardless of the quantity thereof, shall be life
imprisonment to death and a fine ranging from Five Hundred Thousand Pesos
(₱500,000.00) to Ten Million Pesos (₱10,000,000.00). Hence, accused-appellant
Maongco, for his illegal delivery of shabu in Criminal Case No. Q-04-127731, is
sentenced to life imprisonment and ordered to pay a fine of Five Hundred
Thousand Pesos (₱500,000.00).
Article II, Section 11 of Republic Act No. 9165 prescribes the penalty, for
possession of less than five grams of dangerous drugs, of imprisonment of twelve
(12) years and one (1) day to twenty (20) years, plus a fine ranging from Three
Hundred Thousand Pesos (₱300,000.00) to Four Hundred Thousand Pesos
(₱400,000.00). Applying the Indeterminate Sentence Law, the maximum term shall
not exceed the maximum fixed by law and the minimum shall not be less than the
minimum term as prescribed by the same law. Resultantly, accused-appellant
Bandali, for his illegal possession of 4.45 grams of shabu in Criminal Case No. Q-
04-127732, is sentenced to imprisonment of twelve (12) years and one (1) day, as
the minimum term, to twenty (20) years, as the maximum term, and ordered to pay
a fine of Four Hundred Thousand Pesos (₱400,000.00).
WHEREFORE, the appealed Decision Is AFFIRMED with MODIFICATIONS to
read as follows:
1. In Criminal Case No. Q-04-127731, accused-appellant MICHAEL
YUMONDA MAONGCO is found GUILTY beyond reasonable doubt of
illegal delivery of shabu penalized under Article II, Section 5 of Republic
Act No. 9165, and is sentenced to LIFE IMPRISONMENT and ordered to
pay a FINE of Five Hundred Thousand Pesos (₱500,000.00); and
2. In Criminal Case No. Q-04-127732, accused-appellant PHANS SIMP
AL BAND ALI is found GUILTY beyond reasonable doubt of illegal
possession of shabu with a net weight of 4.45 grams, penalized under
Article II, Section 11 of Republic Act No. 9165, and is sentenced to suffer
the penalty of IMPRISONMENT of twelve (12) years and one (1) day, as
the minimum term, to twenty (20) years, as the maximum term, and
ordered to pay a FINE of Four Hundred Thousand Pesos (₱400,000.00).
SO ORDERED.
G.R. No. 94337 January 27, 1993
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
UTOH LAKIBUL y DAUD, accused-appellant.
CAMPOS, JR., J.:
This is an appeal interposed by the accused Utoh Lakibul y Daud from the
decision ** of the Regional Trial Court of Zamboanga City, 9th Judicial Region,
Branch 12, in Criminal Case No. 9002 finding him guilty beyond reasonable doubt
of violating Section 4, Article II of Republic Act No. 6425, otherwise known as the
Dangerous Drugs Act, and sentencing him to suffer the penalty of life
imprisonment and to pay a fine of P20,000.00 without subsidiary imprisonment in
case of insolvency.
On November 8, 1988, the Assistant City Fiscal filed an information charging the
accused with violation of Section 4, Article II of the Dangerous Drugs Act
committed as follows:
That on or about November 8, 1988, in the City of Zamboanga,
Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, not being authorized by law, did then and
there wilfully, unlawfully and feloniously sell to PO2 Manuel S.
Alarcon two (2) wrappers containing dried marijuana, knowing
same to be a prohibited drug.
CONTRARY TO LAW.1
On December 27, 1988, the accused, assisted by his counsel, pleaded "not Guilty"
to the Information:2
After trial on the merits, the trial court rendered its decision on May 14, 1990
finding the accused guilty beyond reasonable doubt of the crime charged, the
dispositive portion of which reads:
WHEREFORE, finding accused UTOH LAKIBUL y DAUD guilty
beyond reasonable doubt of the crime charged, he is sentenced to
serve LIFE IMPRISONMENT pursuant to Section 4, Article II of
Republic Act 6425, as amended, and to pay Twenty Thousand
(P20,000.00) Pesos fine without subsidiary imprisonment in case
of non-payment thereof due to insolvency.
SO ORDERED.3
The antecedent facts as culled by the Solicitor General are as follows:
On November 6, 1988, NARCOM Agent TSgt. Generoso
Dalumpines received information about the presence of a drug
pusher at Lower Calarian, Zamboanga City. Major Cabayacruz,
Officer-In-Charge of the NARCOM then instructed surveillance.
Thereafter, TSgt. Dalumpines and SSgt. Elmer Dedicatoria
proceeded to Lower Calarian, near the mini-fish market, to
conduct their surveillance. Thereat, they saw several teenagers
going to the suspected pusher (p. 3, tsn, May 12, 1989).
On the following day, November 7, 1988, the two (2) NARCOM
agents proceeded to the same place where they again observed
several teenager going to the suspected drug pusher (pp. 3-
4, ibid).
On November 8, 1988, TSgt. Dalumpines informed Major
Cabayacruz of the results of their surveillance and right there and
then decided to conduct a buy-bust operation.
A three (3) man team was formed to conduct the buy-bust
operation composed of TSgt. Dalumpines as the team leader,
SSgt. Dedicatoria and Petty Officer II (PO2) Manuel S. Alarcon,
Sr. as the poseur-buyer. After a short briefing, TSgt. Dalumpines
got from TSgt. Mohammed Sali Mihasun two (2) five peso bills to
be used in the buy-bust operation. Said five peso bills bore the
serial numbers JD 426621 and JM 36075 (Exhs. "E" and "F",
respectively) [p.4, ibid].
The three-man team then proceeded to lower Calarian on board a
tricycle. Upon arrival in the area and from a distance of about ten
(10) meters, TSgt. Dalumpines pinpointed the suspected pusher to
PO2 Alarcon. Thus, PO2 Alarcon approached the suspect and told
the latter of the former's desire to buy P10.00 worth of marijuana.
The suspect produced from his pocket two (2) newspaper
wrapped articles. PO2 Alarcon examined the contents of said
newspaper wrapped articles and when he was satisfied that it
contained marijuana, he gave the two (2) five peso bills to the
suspect.
 The entrapment having been completed, PO2 Alarcon gave the
pre-arranged signal by putting his hand over his head and
scratched [sic] the same. Immediately, TSgt. Dalumpines rushed
up to the suspect and placed him under arrest. PO2 Alarcon
turned over the two (2) newspaper wrapped marijuana to TSgt.
Dalumpines and later brought the suspect to the NARCOM Office
for investigation where he identified himself as UTOH LAKIBUL.
The two (2) five peso bills were recovered from appellant after a
body search (pp. 17-23, tsn, April 18, 1989).
Laboratory tests conducted (Exh. "C") confirmed that the two (2)
newspaper wrapped articles (Exh. "B-1" and "B-2") sold by
appellant to PO2 Alarcon was marijuana (p. 4, tsn, March 16,
1989).4
The accused, on the other hand, had a different version of the events that
transpired on that day. His testimony was summarized by the trial judge as follows:
Utoh Lakibul, who gave his age as 23, said he was a fish vendor
at Lower Calarian in small market there. On November 6, 7 and 8,
1988, he was selling fish in this place. Nobody approached him or
talked to him on November 6 and 7, 1988. But on November 8,
1988, about 8:30 in the morning, somebody called him. Though he
did not know the person, he went and approached him. When he
did so two persons, dressed in civilian clothes, grabbed him and
told him to go with them to their office. Utoh Lakibul said he
refused, even made a bodily motion to get away from the two
persons. Somebody else went near him, telling Utoh Lakibul that if
he did not go with them something would happen to him. So Utoh
Lakibul became afraid and went with the three men — who took
him aboard a tricycle to their office. In the office, Lakibul was
asked about his name and age. He was shown marijuana taken
from the pocket of the arresting officer and money, also taken from
the pocket of the same arresting officer. He was told that the
marijuana and money (bill) were the evidence against him. Lakibul
denied and said he did not know anything about it. Nothing had
been taken from his pocket or body. After about 20 minutes, four
persons took him downtown to the City Fiscal's Office. In the City
Fiscal's Office, he was asked if the marijuana and money
belonged to him and he said he did not know about it. He was not
given any lawyer but he was not made to sign any document.
From the City Fiscal's Office, Utoh Lakibul said he was brought to
the City Jail. At the time the three persons arrested him while he
was selling fish there were people who saw him.
On cross-examination, Utoh Lakibul said that the marijuana shown to him was the
same one he had seen in court (inside two newspaper wrappers). There was no
commotion when the three persons arrested him. But people saw him being
arrested; but none of them did anything to help him (TSN, September 26, 1989,
pp. 1-8).5
The accused appealed from the judgment of conviction, assigning the following
errors6 allegedly committed by the trial court, to wit:
I
IN BASING ITS DECISION CONVICTING THE
ACCUSED/APPELANT ON EXHIBIT "F" OF THE
PROSECUTION.
II
IN NOT BELIEVING THE TESTIMONY OF
ACCUSED/APPELLANT AS CORROBORATED BY HIS THREE
WITNESSES.
III
IN RELYING ON THE TESTIMONY OF THE WITNESSES FOR
THE PROSECUTION INSTEAD OF WEIGHING THE
EVIDENCES ADDUCED DURING THE TRIAL IN FAVOR OF
ACCUSED/APPELLANT.
The accused contends that the trial court erred in allowing the marking of Exhibit
"F" considering that the serial numbers on the two five-peso bills were different
from that presented by the prosecution witness. We do not agree. A reading of the
stenographic notes showed that there was no mistake as to the identity of the
marked bills presented by the prosecution. The testimony of PO2 Alarcon is
reproduced as follows:
Q Do you remember these two P5 bill (sic) that was (sic) given to you by TSgt.
Dalumpines?
A Yes.
Q How well (sic) you know that that was the two P5 bill (sic)?
A By its (sic) serial number.
Q Do you remember the serial number?
A Yes.
Q Please tell us.
A The one P5 bill bearing SN JM 0360, I mean JM 36075.
Q You are sure of that?
A Yes.
Q How about the other one?
A JD 426621.
Q I have here two P5 bills, with SN 360765 and the other one JD 426621, is this
(sic) the one (sic) you mentioned?
A Yes.
FISCAL CAJAYON:
Your Honor, please, I would like to request that P5 bill bearing SN JD 426621 be
marked as our Exhibit "E", your Honor.
COURT:
Mark it.
FISCAL CAJAYON:
Q How about the other one, what Serial No. was it it (sic)?
A JM 36075.
Q I have here P5 bill bearing SN 36075, is this the one?
A Yes.
FISCAL CAJAYON:
I also request, your Honor, the other P5 bill with SN JM 360765 be marked as
Exhibit "F".7
Besides, even without the money to buy the marijuana so long as the police officer
went through the motion as a buyer and his offer was accepted by the appellant
and the marijuana delivered to police officer, the crime was consummated by the
delivery of the goods.8
The second and third assignment of errors imputed by the accused to the trial
court turn on the issue of credibility. It is well-settled that the findings of the trial
court on the credibility of witnesses are entitled to great weight on appeal "as it is
in a better position to decide the question of credibility, having seen and heard the
witnesses themselves and observed their behavior and manner of testifying. The
impression of the trial court on the matter is binding upon the Supreme Court
unless there appears a grave abuse of discretion or obvious misapprehension of
facts".9 In the case at bar, We find no reason to deviate from the general rule.
We agree with the findings of the trial court when it gave more credence to the
prosecution's evidence, thus:
The issues is, then, one of credibility (sic) and as the Court stated
earlier, it gives credit to the government witnesses and not to
Defense witnesses. First, the Court saw how these witnesses
testify (sic) and believes (sic) in the sincerity of the government
witnesses, their truthfulness and in the manner they testified.
Second, Defense witnesses were long-time neighbors of Utoh
Lakibul and his mother. They testified on the request of Lakibul's
mother. Third is that, the Court cannot believe that the sound
"Pssst" is loud enough to attract the attention of persons some
meters away. Especially, of persons who were engaged in some
activity, like buying. Fourth reason is that, the testimonies of the
witnesses are more elaborate than that of the accused himself.
For instance, the accused himself did not state he was called by
the "Pssst" sound; he did not say that his co-fish vendor, Apna
Labbay, had touched his shoulder to indicate to him he was being
called by the three persons. In fact, accused did not mention that
Apna Labbay was one of those selling fish near his fish table.
Then, not one of Defense witnesses — not even accused himself
— ascribed any evil or ulterior motive as to why NARCOM agents,
who did not know the accused until two days of surveillance and
the day of the buy-bust operation would just arrest him without
reason. There was no previous misunderstanding or trouble
between accused and the NARCOM men; neither did any of the
NARCOM men involved intimate to accused they wanted any
money or anything from accused. There are no substantive
defects in (sic) Prosecution (sic) testimonial evidence that may
entitle accused to acquittal based on reasonable doubt.10
As to the alleged inconsistencies in the testimonies of the prosecution witnesses
as contained in the appellant's Brief, We do not find them substantial enough to
impair the essential veracity of their narration that the accused was caught in
flagrante selling marijuana during the buy-bust operation conducted by the
NARCOM agents.
WHEREFORE, finding no reversible error in the trial court's findings, the decision
of the Court a quo is hereby AFFIRMED in toto.
SO ORDERED.
G.R. No. 179940 April 23, 2008
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
NORBERTO DEL MONTE y GAPAY @ OBET, accused-appellant.
DECISION
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 Decision 2 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. 173804 December 10, 2008
ELPIDIO BONDAD, JR., Y BURAC, appellant,
vs.
PEOPLE OF THE PHILIPPINES, appellee.
DECISION
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.
xxxx
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.
xxxx
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.
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:
xxxx
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)

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:
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.

x x x Provided, further, that non-compliance with these requirements SO ORDERED.

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.