THIRD DIVISION
[ G.R. No. 181747, September 26, 2008 ]
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. NARCISO AGULAY Y LOPEZ, ACCUSED-APPELLANT.
D E C I S I O N
CHICO-NAZARIO, J.:
For Review under Rule 45 of the Revised Rules of Court is the Decision[1] dated 31 August 2007 of the Court of Appeals in CA-G.R. CR No. 01994 entitled, People of the Philippines v. Narciso Agulay y Lopez, affirming the
Decision[2] rendered by the Regional Trial Court (RTC) of Quezon City, Branch 103, in Criminal Case No. Q-02-111597, finding accused-appellant Narciso Agulay y Lopez guilty of illegal sale and illegal possession of methamphetamine hydrochloride more
popularly known as "shabu."
On 26 August 2002, accused-appellant was charged in an Information before the RTC of Quezon City with violation of Section 5, Article II of Republic Act No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002. The Information reads:
During the trial, the prosecution presented the testimonies of Police Officer (PO) 2 Raul Herrera, the poseur-buyer, PO2 Reyno Riparip (member of the buy-bust team), and Forensic Analyst Leonard M. Jabonillo.
The prosecution's version of the events are narrated as follows:
On 24 August 2002, at around 6:30 in the evening, an informant arrived at Police Station 5 and reported to the Chief of the Station Drug Enforcement Unit (SDEU) that a certain "Sing" had been selling shabu at Brgy. Sta. Lucia, in Novaliches, Quezon City.
A police entrapment team was formed. PO2 Herrera was assigned as poseur-buyer and was given a P100.00 bill, which he marked "RH," his initials. A pre-operation report bearing control No. 24-SDEU-02 was made and signed by Police Inspector (P/Insp.) Palaleo Adag dated 24 August 2002.
The buy-bust team rode in two vehicles, a Space Wagon and a Besta van, with a group of police officers inside. They stopped along J.P. Rizal St., Sta. Lucia, Novaliches, Quezon City.
PO2 Herrera and his informant stepped down from their vehicle and walked. The informant pointed the target pusher to PO2 Herrera. They approached and after being introduced to Sing, PO2 Herrera bought shabu using the marked P100.00 bill. Sing gave a small plastic sachet to PO2 Herrera who, thereafter, scratched his head as a signal. The other police companions of PO2 Herrera, who were deployed nearby, then rushed to the crime scene. PO2 Herrera grabbed Sing and then frisked him. PO2 Herrera recovered two (2) plastic sachets from Sing's pocket. He also got the marked money from Sing.
The following specimens were submitted to the Philippine National Police (PNP) Crime Laboratory of the Central Police District in Quezon City for chemical analysis:
Accused-appellant Narciso Agulay narrated that at around 8:30 to 9:00 o'clock in the evening of 24 August 2002, he was manning his store when a car stopped in front of it. The passengers of said vehicle opened its window and poked a gun at him. The passengers alighted from the car, approached him and put handcuffs on him. Accused-appellant asked what violation he had committed or if they had a search warrant with them, but the arresting team just told him to go with them. Accused-appellant requested that he be brought to the barangay hall first, but this request was left unheeded. Instead, he was immediately brought to the police station. Upon reaching the police station, PO2 Herrera handed something to PO1 Riparip. Thereafter, PO2 Herrera and PO1 Riparip approached and punched him on the chest. They removed his shorts and showed him a plastic sachet. Later that night, the arresting officers placed him inside the detention cell. After about 30 minutes, PO1 Riparip and PO2 Herrera approached him. PO2 Herrera told him that if he would not be able to give them P50,000.00, they would file a case against him, to which he answered, "I could not do anything because I do not have money."[7]
Benjamin Agulay, brother of accused-appellant, testified that at around 8:30 to 9:00 o'clock in the evening of 24 August 2002, while he was smoking in their compound, a group of armed men in civilian clothes entered the place and arrested his brother, who was then manning a store. He tried asking the arresting officers what the violation of accused-appellant was but he was ignored. They then took accused-appellant to the police station.
On the other hand, the testimony of Bayani de Leon (a police asset of SPO1 Valdez of the buy-bust team) narrated that he, together with P/Insp. Suha, PO1 Herrera, PO2 Riparip, PO2 Gulferic and an arrested individual were on board a car while conducting a follow-up operation regarding a hold-up incident. When the car they were riding reached No. 51 J.P. Rizal Street, their team alighted and entered a compound. They saw accused-appellant and arrested him as he was allegedly involved in a hold-up incident, not with drug pushing. Accused-appellant was taken to Police Station 5.
On 17 February 2006, the RTC found accused-appellant guilty of the offense charged, and meted out to him the penalty of Life Imprisonment. The dispositive portion of the RTC Decision is as follows:
Accused-appellant filed his appellant's brief[9] with the Court of Appeals on 22 September 2006.
On 31 August 2007, the Court of Appeals issued its Decision denying accused-appellant's appeal as follows:
The issues raised are the following:
From the foregoing issues raised by accused-appellant, the basic issue to be resolved hinges on whether accused-appellant was arrested in a legitimate "buy-bust" operation.
The law presumes that an accused in a criminal prosecution is innocent until the contrary is proved. The presumption of innocence of an accused in a criminal case is a basic constitutional principle, fleshed out by procedural rules which place on the prosecution the burden of proving that an accused is guilty of the offense charged by proof beyond reasonable doubt. Whether the degree of proof has been met is largely left for the trial courts to determine. Consistent with the rulings of this Court, it is a fundamental and settled rule that factual findings of the trial court and its calibration of the testimonies of the witnesses and its conclusions anchored on its findings are accorded by the appellate court high respect, if not conclusive effect, more so when affirmed by the Court of Appeals, as in this case. The exception is when it is established that the trial court ignored, overlooked, misconstrued or misinterpreted cogent facts and circumstances which, if considered, will change the outcome of the case. Considering that what is at stake here is the liberty of accused-appellant, we have carefully reviewed and evaluated the records of the RTC and the Court of Appeals. On evaluation of the records, this Court finds no justification to deviate from the lower court's findings and conclusion that accused-appellant was arrested in flagrante delicto selling shabu.
In order to successfully prosecute an accused for illegal sale of drugs, the prosecution must be able to prove the following elements:
There are eight (8) instances when a warrantless search and seizure is valid, to wit:
The defense contends there is a clear doubt on whether the specimens examined by the chemist and eventually presented in court were the same specimens recovered from accused-appellant. The prosecution's failure to submit in evidence the required physical inventory and photograph of the evidence confiscated pursuant to Section 21,[19] Article II of Republic Act No. 9165 will not discharge accused-appellant from his crime. Non-compliance with said section is not fatal and will not render an accused's arrest illegal or the items seized/confiscated from him inadmissible. In People v. Del Monte,[20] this Court held that 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 instant case, we find the integrity of the drugs seized intact, and there is no doubt that the three sachets of drugs seized from accused-appellant were the same ones examined for chemical analysis, and that the crystalline substance contained therein was later on determined to be positive for methylamphetamine hydrochloride (shabu).
The defense, in fact, admitted the existence and authenticity of the request for chemical analysis and the subsequent result thereof:
Accused-appellant's allegation that he is a victim of a frame-up, which has been held as a shop-worn defense of those accused in drug-related cases, is viewed by the Court with disfavor. Like the defense of alibi, frame-up is an allegation that can easily be concocted.[25] For this claim to prosper, the defense must adduce clear and convincing evidence to overcome the presumption of regularity of official acts of government officials.[26] Absent any proof of motive to falsely accuse him of such a grave offense, the presumption of regularity in the performance of official duty and the findings of the trial court with respect to the credibility of witnesses shall prevail over that of the accused-appellant.[27]
Apart from his defense that he is a victim of a frame-up and extortion by the police officers, accused-appellant could not present any other viable defense. Again, while the presumption of regularity in the performance of official duty by law enforcement agents should not by itself prevail over the presumption of innocence, for the claim of frame-up to prosper, the defense must be able to present clear and convincing evidence to overcome this presumption of regularity. This, it failed to do.
Bayani de Leon's testimony that the accused was being taken as a carnapping suspect only further weakened the defense, considering it was totally out of sync with the testimony of accused-appellant vis-à-vis the positive testimonies of the police officers on the events that transpired on the night of 24 August 2002 when the buy-bust operation was conducted. It is also highly suspect and unusual that accused-appellant never mentioned that he was taken as a carnapping suspect if indeed this were the case, considering it would have been his ticket to freedom.
To recall, on direct examination by the defense counsel, Bayani de Leon testified as follows:
Moreover, Bayani de Leon testified that he allegedly came to know of the fact that accused-appellant was being charged under Republic Act No. 9165 when he (Bayani de Leon) was also detained at the city jail for robbery with homicide, testifying as follows:
On this premise, this Court has laid down the "objective" test in scrutinizing buy-bust operations. In People v. Doria,[31] we said:
We thus hold that accused-appellant's guilt has been established beyond reasonable doubt. This Court shall now determine the proper penalties to be imposed on him.
An examination of the Information reveals that accused-appellant was charged with the unauthorized sale and delivery of dangerous drugs consisting of twenty-five hundredths (0.25) gram of methylamphetamine hydrochloride (shabu). From the testimonies of the prosecution witnesses, only one sachet[33] was sold and delivered to the poseur-buyer, PO2 Herrera. The two other sachets[34] were not sold or delivered, but were found by PO2 Herrera inside the right pocket of accused-appellant's pair of shorts upon frisking, after the latter was caught in flagrante delicto during the buy-bust operation.
Accused-appellant could have been charged with the possession of dangerous drugs[35] on account of the second and third sachets. This was not done. He cannot then be convicted of possession of dangerous drugs, without being properly charged therewith, even if proved. Accused-appellant, however, is still guilty, as charged in the Information, of selling and delivering one sachet to the poseur-buyer.
Under Republic Act No. 9165, the unauthorized sale of shabu carries with it the penalty of life imprisonment to death and a fine ranging from Five Hundred Thousand Pesos (P500,000.00) to Ten Million Pesos (P10,000,000.00).
Pursuant, however, to the enactment of Republic Act No. 9346 entitled, "An Act Prohibiting the Imposition of Death Penalty in the Philippines," only life imprisonment and fine, instead of death, shall be imposed.
We, therefore, find the penalty imposed by the trial court, as affirmed by the Court of Appeals - life imprisonment and a fine of P500,000.00 - to be proper.
WHEREFORE, premises considered, the Court of Appeals Decision in CA-G.R. CR No. 01994 dated 31 August 2007 is AFFIRMED.
SO ORDERED.
Velasco,* Jr., and Reyes, JJ., concur.
Brion,** J., I dissent.
Tinga,* J., join Brion's dissent.
* Per Special Order No. 517, dated 27 August 2008, signed by Chief Justice Reynato S. Puno, designating Associate Justices Dante O. Tinga and Presbitero J. Velasco, Jr. to replace Associate Justices Consuelo Ynares-Santiago and Ma. Alicia Austria-Martinez, who are on official leave.
** Justice Arturo D. Brion was designated to sit as additional member replacing Justice Antonio Eduardo B. Nachura per Raffle dated 21 April 2008.
[1] Penned by Associate Justice Portia-Alino-Hormachuelos with Associate Justices Lucas P. Bersamin and Estela M. Perlas-Bernabe, concurring. Rollo, pp. 2-13.
[2] Penned by Judge Jaime N. Salazar, Jr.; CA rollo, pp. 20-23.
[3] Records, p. 1.
[4] Id. at 23.
[5] Id. at 14.
[6] Id.
[7] TSN, 25 October 2004, p. 13.
[8] Records, p. 23.
[9] Id. at 35-49.
[10] Rollo, p. 12.
[11] Pursuant to Section 13, Rule 124 of the Revised Rules on Criminal Procedure, as amended by A.M. No. 00-5-03-SC.
[12] People v. Lee Hoi Ming, 459 Phil. 187, 193 (2003).
[13] Chemistry Report No. D-1020-2002; Records, p. 14.
[14] TSN, 16 October 2002, pp. 3-10.
[15] TSN, 16 October 2002, pp. 20-23.
[16] People v. Valencia, 439 Phil. 561, 574 (2002).
[17] People v. Abbu, 317 Phil. 518, 525 (1995).
[18] Pre-Operation Report; Records, p. 6.
[19] SEC. 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. - The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner:
(1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof.
[20] G.R. No. 179940, 23 April 2008.
[21] TSN, 28 March 2003, pp. 2-3.
[22] Id. at 9-10.
[23] TSN, 15 February 2005, pp. 3-5.
[24] Records, p. 94.
[25] People v. De Leon, 440 Phil. 368, 388 (2002); People v. Lee Hoi Ming, supra note 12 at 195.
[26] People v. De Leon, id., citing People v. Zheng Bai Hui, 393 Phil. 68, 135 (2000), People v. Boco, 368 Phil. 341, 366-367 (1999); Teodosio v. Court of Appeals, G.R. No. 124346, 8 June 2004, 431 SCRA 194, 204.
[27] People v. Bongalon, 425 Phil. 96, 116 (2002).
[28] TSN, 24 January 2006, pp. 6-7.
[29] Id. at 11.
[30] CA rollo, p. 23.
[31] 361 Phil. 595, 621 (1999).
[32] People v. Casolocan, G.R. No. 156890, 13 July 2004, 434 SCRA 276, 282.
[33] TSN, 16 October 2002, pp. 8-9.
[34] Id.
[35] Republic Act No. 9165, Article II, Section 11.
On 26 August 2002, accused-appellant was charged in an Information before the RTC of Quezon City with violation of Section 5, Article II of Republic Act No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002. The Information reads:
That on or about the 24th day of August, 2002 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 sell, dispense, deliver, transport, distribute or act as broker in the said transaction, zero point twenty five (0.25) gram of methylamphetamine hydrochloride a dangerous drug.[3]When arraigned on 23 September 2002, accused-appellant pleaded not guilty.[4] Thereafter, trial ensued.
During the trial, the prosecution presented the testimonies of Police Officer (PO) 2 Raul Herrera, the poseur-buyer, PO2 Reyno Riparip (member of the buy-bust team), and Forensic Analyst Leonard M. Jabonillo.
The prosecution's version of the events are narrated as follows:
On 24 August 2002, at around 6:30 in the evening, an informant arrived at Police Station 5 and reported to the Chief of the Station Drug Enforcement Unit (SDEU) that a certain "Sing" had been selling shabu at Brgy. Sta. Lucia, in Novaliches, Quezon City.
A police entrapment team was formed. PO2 Herrera was assigned as poseur-buyer and was given a P100.00 bill, which he marked "RH," his initials. A pre-operation report bearing control No. 24-SDEU-02 was made and signed by Police Inspector (P/Insp.) Palaleo Adag dated 24 August 2002.
The buy-bust team rode in two vehicles, a Space Wagon and a Besta van, with a group of police officers inside. They stopped along J.P. Rizal St., Sta. Lucia, Novaliches, Quezon City.
PO2 Herrera and his informant stepped down from their vehicle and walked. The informant pointed the target pusher to PO2 Herrera. They approached and after being introduced to Sing, PO2 Herrera bought shabu using the marked P100.00 bill. Sing gave a small plastic sachet to PO2 Herrera who, thereafter, scratched his head as a signal. The other police companions of PO2 Herrera, who were deployed nearby, then rushed to the crime scene. PO2 Herrera grabbed Sing and then frisked him. PO2 Herrera recovered two (2) plastic sachets from Sing's pocket. He also got the marked money from Sing.
The following specimens were submitted to the Philippine National Police (PNP) Crime Laboratory of the Central Police District in Quezon City for chemical analysis:
Three (3) heat-sealed transparent plastic sachets each containing white crystalline substance having the following markings and recorded net weights:Chemistry Report No. D-1020-2002 dated 25 August 2002 and prepared and presented in court by Forensic Analyst Leonard M. Jabonillo (of the PNP Crime Laboratory of the Central Police District of Quezon City) yielded the following results-
(A) (RH1-RG1) = 0.07 gm
(B) (RH2-RG2) = 0.09 gm
(C) (RH3-RG3) = 0.09 gm[5]
FINDINGS:The defense, on the other hand, had an entirely different version of what transpired that night. It presented three witnesses: accused-appellant Narciso Agulay, Benjamin Agulay (brother of Narciso), and Bayani de Leon.
Qualitative examination conducted on the above-stated specimens gave POSITIVE result to the test for Methylamphetamine Hydrochloride, a regulated drug. x x x.
CONCLUSION:
Specimen A, B and C contain Methylamphetamine Hydrochloride, a regulated drug.[6]
Accused-appellant Narciso Agulay narrated that at around 8:30 to 9:00 o'clock in the evening of 24 August 2002, he was manning his store when a car stopped in front of it. The passengers of said vehicle opened its window and poked a gun at him. The passengers alighted from the car, approached him and put handcuffs on him. Accused-appellant asked what violation he had committed or if they had a search warrant with them, but the arresting team just told him to go with them. Accused-appellant requested that he be brought to the barangay hall first, but this request was left unheeded. Instead, he was immediately brought to the police station. Upon reaching the police station, PO2 Herrera handed something to PO1 Riparip. Thereafter, PO2 Herrera and PO1 Riparip approached and punched him on the chest. They removed his shorts and showed him a plastic sachet. Later that night, the arresting officers placed him inside the detention cell. After about 30 minutes, PO1 Riparip and PO2 Herrera approached him. PO2 Herrera told him that if he would not be able to give them P50,000.00, they would file a case against him, to which he answered, "I could not do anything because I do not have money."[7]
Benjamin Agulay, brother of accused-appellant, testified that at around 8:30 to 9:00 o'clock in the evening of 24 August 2002, while he was smoking in their compound, a group of armed men in civilian clothes entered the place and arrested his brother, who was then manning a store. He tried asking the arresting officers what the violation of accused-appellant was but he was ignored. They then took accused-appellant to the police station.
On the other hand, the testimony of Bayani de Leon (a police asset of SPO1 Valdez of the buy-bust team) narrated that he, together with P/Insp. Suha, PO1 Herrera, PO2 Riparip, PO2 Gulferic and an arrested individual were on board a car while conducting a follow-up operation regarding a hold-up incident. When the car they were riding reached No. 51 J.P. Rizal Street, their team alighted and entered a compound. They saw accused-appellant and arrested him as he was allegedly involved in a hold-up incident, not with drug pushing. Accused-appellant was taken to Police Station 5.
On 17 February 2006, the RTC found accused-appellant guilty of the offense charged, and meted out to him the penalty of Life Imprisonment. The dispositive portion of the RTC Decision is as follows:
Accordingly, judgment is rendered finding the accused NARCISO AGULAY Y LOPEZ GUILTY beyond reasonable doubt of the crime of violation of Section 5 of R.A. 9165 as charged (for drug pushing) and he is hereby sentenced to suffer a jail term of LIFE IMPRISONMENT and to pay a fine of P500,000.00.Accused-appellant filed his Notice of Appeal with Motion to Litigate as Pauper Litigant on 7 March 2006.
The methylamphetamine hydrochloride (in 3 sachets) involved in this case is ordered transmitted to the PDEA thru DDB for proper disposition.[8]
Accused-appellant filed his appellant's brief[9] with the Court of Appeals on 22 September 2006.
On 31 August 2007, the Court of Appeals issued its Decision denying accused-appellant's appeal as follows:
WHEREFORE, finding no reversible error in the Decision appealed from, the appeal is DENIED. The Decision of the RTC dated February 17, 2006 is AFFIRMED.[10]Petitioner elevated the case to this Court via Notice of Appeal[11] dated 21 September 2007. In its Resolution dated 2 April 2008, this Court resolved to:
(3) Notify the parties that they may file their respective supplemental briefs, if they so desire, within thirty (30) days from notice.To avoid a repetition of the arguments, accused-appellant opted to adopt his appellant's brief dated 22 September 2006 while plaintiff-appellee adopted its appellee's brief dated 22 January 2007, instead of filing their respective supplemental briefs.
The issues raised are the following:
Accused-appellant maintains that his arrest was illegal, and that the subsequent seizure of shabu allegedly taken from him is inadmissible as evidence against him. He also claims that the prosecution failed to prove his guilt beyond reasonable doubt, since the prosecution failed to show all the essential elements of an illegal sale of shabu.
- THE TRIAL COURT GRAVELY ERRED IN NOT FINDING THAT THE ACCUSED-APPELLANT WAS ILLEGALLY ARRESTED AND AS SUCH, THE SACHETS OF SHABU ALLEGEDLY RECOVERED FROM HIM ARE INADMISSIBLE IN EVIDENCE.
- THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME CHARGED.
- ACCUSED-APPELLANT CANNOT BE HELD LIABLE FOR THE CONSUMMATED CRIME OF ILLEGAL SALE OF SHABU BECAUSE OF THE FAILURE OF THE PROSECUTION TO ESTABLISH ALL OF ITS ESSENTIAL ELEMENTS.
From the foregoing issues raised by accused-appellant, the basic issue to be resolved hinges on whether accused-appellant was arrested in a legitimate "buy-bust" operation.
The law presumes that an accused in a criminal prosecution is innocent until the contrary is proved. The presumption of innocence of an accused in a criminal case is a basic constitutional principle, fleshed out by procedural rules which place on the prosecution the burden of proving that an accused is guilty of the offense charged by proof beyond reasonable doubt. Whether the degree of proof has been met is largely left for the trial courts to determine. Consistent with the rulings of this Court, it is a fundamental and settled rule that factual findings of the trial court and its calibration of the testimonies of the witnesses and its conclusions anchored on its findings are accorded by the appellate court high respect, if not conclusive effect, more so when affirmed by the Court of Appeals, as in this case. The exception is when it is established that the trial court ignored, overlooked, misconstrued or misinterpreted cogent facts and circumstances which, if considered, will change the outcome of the case. Considering that what is at stake here is the liberty of accused-appellant, we have carefully reviewed and evaluated the records of the RTC and the Court of Appeals. On evaluation of the records, this Court finds no justification to deviate from the lower court's findings and conclusion that accused-appellant was arrested in flagrante delicto selling shabu.
In order to successfully prosecute an accused for illegal sale of drugs, the prosecution must be able to prove the following elements:
(1) identities of the buyer and seller, the object, and the consideration; andThe testimonies of the prosecution witnesses proved that all the elements of the crime have been established: that the buy-bust operation took place, and that the shabu subject of the sale was brought to and identified in court. Moreover, PO2 Herrera, the poseur-buyer, positively identified accused-appellant as the person who sold to him the sachet containing the crystalline substance which was confirmed to be shabu.[13] He narrated the events which took place the night accused-appellant was apprehended:
(2) the delivery of the thing sold and the payment therefor.[12]
FIS. JURADO:
You said that you are stationed at Police Station 5, what were your duties there?
WITNESS:
As an operative sir.
FIS. JURADO:His testimony was corroborated on material points by PO1 Riparip, one of the back-up operatives in the buy-bust operation that night, to wit:
What was your tour of duty on August 24, 2002?
WITNESS:
Broken hour sir.
FIS. JURADO:
But at around 6:30 in the evening, you are on duty?
WITNESS:
Yes, sir.
FIS. JURADO:
While you are on duty at that time and place, will you please inform this Honorable Court if there was an operation?
WITNESS:
Yes, sir.
FIS JURADO:
What is that operation all about?
WITNESS:
Buy bust operation sir.
FIS. JURADO:
Regarding what?
WITNESS:
Narcotic sir.
FIS. JURADO:
What is this all about?
WITNESS:
Alias Sing at Sta. Lucia sir.
FIS. JURADO:
How did you prepare for that buy-bust operation?
WITNESS:
An informant arrived and we reported to our Chief of SDEU and the Chief gave us P100.00 and I acted as poseur-buyer sir.
FIS. MJURADO:
Aside from that what else?
WITNESS:
I put my markings sir.
FIS. JURADO:
What is that markings (sic)?
WITNESS:
R.H. sir.
FIS. JURADO:
What is the significance of this R.H.?
WITNESS:
That mean(sic) Raul Herrera sir.
FIS. JURADO:
Do you have said money with you?
WITNESS:
Yes sir.
FIS. JURADO:
Will you please show that to this Honorable Court?
WITNESS:
Here sir.
x x x x
FIS. JURADO:
After you prepared the buy bust money, what else did you do?
WITNESS:
We proceeded to the target location, sir.
FIS. JURADO:
You said "we" who were with you?
WITNESS:
P/Insp. Addag, Rosario, SPO1 El Valdez, SPO2 Rey Valdez, Nogoy, Riparip and the confidential informant sir.
FIS. JURADO:
How did you proceed to the place of Sta. Lucia?
WITNESS:
We rode in a tinted vehicles (sic) one space wagon and Besta van, sir.
FIS. JURADO:
When you arrived in that place, what happened there?
WITNESS:
We asked our confidential informant to look for Sing, sir.
FIS. JURADO:
Did the confidential informant locate the said Sing?
WITNESS:
Yes sir along the street sir.
FIS. JURADO:
Where?
WITNESS:
J.P. Rizal St., Sta. Lucia, Novaliches, Quezon City, sir.
FIS. JURADO:
After your confidential informant found this Sing, what happened next?
WITNESS:
Our confidential informant asked me to go with him to see Sing to buy drug(s) sir.
FIS. JURADO:
Where is (sic) the transaction took (sic) place?
WITNESS:
Along the street sir.
FIS. JURADO:
What happened there?
WITNESS:
I was introduced by the confidential informant to Sing as buyer sir.
FIS. JURADO:
What happened next?
WITNESS:
I bought from him worth one hundred peso (sic) of shabu, sir.
FIS. JURADO:
What (sic) Sing do, if any?
WITNESS:
Sing gave me one small plastic sachet sir.
FIS JURADO:
After that what did you do next?
WITNESS:
I executed our pre-arranged signal sir.
FIS. JURADO:
For whom you executed this pre-arranged signal?
WITNESS:
To my companions sir.
FIS. JURADO:
Where are (sic) your companions at that time?
WITNESS:
On board at (sic) Besta and Space Wagon sir.
FIS. JURADO:
What was the pre-arranged signal?
WITNESS:
I scratched my head sir.
FIS. JURADO:
After scratching your head, what happened next?
WITNESS:
My back-up rushed to our place, sir.
FIS. JURADO:
After that what did you do next?
WITNESS:
I grabbed Sing and arrested him sir.
FIS. JURADO:
How about the money?
WITNESS:
I recovered the buy bust money from Sing, sir.
FIS. JURADO:
You mentioned plastic sachet, I am showing to you three (3) plastic sachets, which of these three was taken or sold to you?
WITNESS:
This one sir.
FIS. JURADO:
How did you come to know that this is the one?
WITNESS:
I have my initial(sic) R.H. sir.
x x x x
FIS. JURADO:
Aside from that, what happened next?
WITNESS:
When I frisked Sing, I was able to recover from him two (2) more plastic sachets sir.
FIS. JURADO:
Where did you get that plastic sachet?
WITNESS:
Right side pocket sir.
FIS. JURADO:
Short or pant?
WITNESS:
Short sir.
FIS. JURADO:
Where are these two plastic sachets that you are mentioning?
WITNESS:
Here sir.
FIS. JURADO:
How did you come to know that these are the two plastic sachets?
WITNESS:
I put my markings sir RH.x x x x
COURT:
After that what happened next?
WITNESS:
We brought him to our Police Station, sir.
FIS. JURADO:
You mentioned Sing if this Sing is inside this courtroom, will you be able to identify him?
WITNESS:
Yes sir that man.
INTERPRETER:
Witness pointing to a man who identified himself as Narciso Agulay and his nickname is "Sing."[14]
Accused-appellant contends his arrest was illegal, making the sachets of shabu allegedly recovered from him inadmissible in evidence. Accused-appellant's claim is devoid of merit for it is a well-established rule that an arrest made after an entrapment operation does not require a warrant inasmuch as it is considered a valid "warrantless arrest," in line with the provisions of Rule 113, Section 5(a) of the Revised Rules of Court, to wit:
FIS. JURADO:
You said that you are a police officer, where were you assigned on August 24, 2002?
WITNESS:
I was assigned at Police Station 5 for drug(sic) sir.
FIS. JURADO:
What was your tour of duty at that time?
WITNESS:
Broken hour sir.
FIS. JURADO:
You were on duty on August 24, 2002 at 6:30 in the evening?
WITNESS:
Yes sir.
FIS. JURADO:
What was your functions(sic) as such?
WITNESS:
To conduct follow up operation on drugs and other crimes sir.
FIS. JURADO:
Did you conduct operation on that day?
WITNESS:
Yes sir we conducted Narcotic operation sir.
FIS. JURADO:
You said you conducted narcotic operation, where?
WITNESS:
Sta. Lucia, particularly at J.P. Rizal St., Novaliches, Quezon City, sir.
FIS. JURADO:
To whom this Narcotic operation conducted?
WITNESS:
To certain Alias Sing, sir.
FIS. JURADO:
Who were with you at that time?
WITNESS:
Valdez, Rosario, Herrera, Addag and other(sic) sir.
FIS. JURADO:
What was your participation in the said operation?
WITNESS:
I acted as back up sir.
FIS. JURADO:
As back up, what did you do?
WITNESS:
We position ourselves to a certain distance and where we can see the poseur-buyer sir.
FIS. JURADO:
Who was the poseur-buyer?
WITNESS:
Herrera sir.
FIS. JURADO:
What did you see?
WITNESS:
The poseur buyer executed the pre-arranged signal and we rushed to his position and arrested the target person Sing sir.
FIS. JURADO:
When we (sic) rushed to the target place what happened next?
WITNESS:
Herrera frisked Sing and we brought him to the police station sir.[15]
Section 5. Arrest without warrant; when lawful. - A peace officer or a private person may, without a warrant, arrest a person:A buy-bust operation is a form of entrapment which in recent years has been accepted as a valid and effective mode of apprehending drug pushers. In a buy-bust operation, the idea to commit a crime originates from the offender, without anybody inducing or prodding him to commit the offense.[16] If carried out with due regard for constitutional and legal safeguards, a buy-bust operation deserves judicial sanction.[17]
(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense.
There are eight (8) instances when a warrantless search and seizure is valid, to wit:
(1) consented searches; (2) as an incident to a lawful arrest; (3) searches of vessels and aircraft for violation of immigration, customs, and drug laws; (4) searches of moving vehicles; (5) searches of automobiles at borders or constructive borders; (6) where the prohibited articles are in "plain view;" (7) searches of buildings and premises to enforce fire, sanitary, and building regulations; and (8) "stop and frisk" operations.Considering that the legitimacy of the buy-bust operation is beyond question, the subsequent warrantless arrest and warrantless search and seizure, were permissible. The search, clearly being incident to a lawful arrest, needed no warrant for its validity. Thus, contrary to accused-appellant's contention, the contraband seized from him, having been obtained as a result of the buy-bust operation to which the defense failed to impute any irregularity, was correctly admitted in evidence. Noteworthy is the fact that prior to the dispatch of the entrapment team, a pre-operation report[18] was made bearing Control No. 24-SDEU-02 dated 24 August 2005. The pre-operation report stated that an Anti-Narcotic Operation was to be conducted at Barangay Sta. Lucia in Novaliches, Quezon City, and indicated the police officers involved, including the vehicles to be used. This only bolsters the testimony of PO2 Herrera and PO1 Riparip as to the legitimacy of the buy-bust operation.
The defense contends there is a clear doubt on whether the specimens examined by the chemist and eventually presented in court were the same specimens recovered from accused-appellant. The prosecution's failure to submit in evidence the required physical inventory and photograph of the evidence confiscated pursuant to Section 21,[19] Article II of Republic Act No. 9165 will not discharge accused-appellant from his crime. Non-compliance with said section is not fatal and will not render an accused's arrest illegal or the items seized/confiscated from him inadmissible. In People v. Del Monte,[20] this Court held that 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 instant case, we find the integrity of the drugs seized intact, and there is no doubt that the three sachets of drugs seized from accused-appellant were the same ones examined for chemical analysis, and that the crystalline substance contained therein was later on determined to be positive for methylamphetamine hydrochloride (shabu).
The defense, in fact, admitted the existence and authenticity of the request for chemical analysis and the subsequent result thereof:
On cross-examination by the defense, Forensic Analyst Jabonillo stated that the drugs presented in court were the same drugs examined by him and submitted to him on 25 August 2002:
FIS. JURADO:
Chemist Engr. Jabonillo is present your honor.
COURT:
Any proposal for stipulation?
FIS. JURADO:
That there is letter request for examination of white crystalline substance marked as follows: A (pH1); B (pH2) and C (pH3)?
ATTY. QUILAS:
Admitted your honor.
FIS. JURADO:
As a result of the said qualitative examination chemist issued a chemistry report No. D-1020-2002?
ATTY. QUILAS:
Admitted your honor.
FIS. JURADO:
In view of the admission your honor, may we request that Letter request dated August 25, 2002 be marked as Exhibit `D' and Chemistry Report No. D-1020-2002 as Exhibit `E' your honor.
COURT:
Mark it.In view of the presence of the Chemist, Engr. Jabonillo, He is being called to the witness stand for cross examination of the defense counsel.[21]
On cross-examination by the defense, the same witness testified, to wit:
ATTY. QUILAS:
In this particular case, you received three plastic sachets?
WITNESS:
Yes sir.
ATTY. QUILAS:
When you receive these three plastic sachets were these already segregated or in one plastic container?
WITNESS:
I received it as is sir.
x x x x
ATTY. QUILAS:
How sure you were (sic) that three plastic sachet (sic) containing methylamphetamine hydrochloride were the same drug (sic) submitted to you on August 25, 2002.
WITNESS:
I personally place (sic) my marking sir.
ATTY. QUILAS:
You want to impress before this Honorable Court these were the same items that you received on August 25, 2002?
WITNESS:
Yes sir.[22]
It is significant to note that accused-appellant stated in his demurrer to evidence that the specimens submitted for laboratory examination were not the three plastic sachets that were allegedly recovered by the poseur-buyer PO2 Raul Herrera, which may thus be construed to be an implied admission.[24]
ATTY. DE GUZMAN:
I understand you are Chemical Engineer, am I correct?
WITNESS:
Yes, sir.
ATTY. DE GUZMAN:
And that you have been (sic) worked as a Chemist in the PNP for several years?
WITNESS:
Since March, 200 (sic), sir.
ATTY. DE GUZMAN:
What would be your practice when specimen submitted for you to examine, was it already pre-marked by the person who submit for examination?
WITNESS:
Normally, sir.
ATTY. DE GUZMAN:
What do you mean normally, you also put the marking?
WITNESS:
Yes, sir.
ATTY. DE GUZMAN:
So everything has pre-mark?
WITNESS:
Yes, sir.
ATTY. DE GUZMAN:
And then when pre-mark specimen is submitted to you, you merely analyze the same is that correct?
WITNESS:
Yes, sir.
ATTY. DE GUZMAN:
And you do not change any marking there?
WITNESS:
Yes, sir.
ATTY. DE GUZMAN:
Now in the marking that we have it appearing that Exhibits A, B, and C are PH, am I correct?
WITNESS:
RH sir, not PH.
ATTY. DE GUZMAN:
Because it shows in the zerox (sic) copy that it is RH because of that slant. Now when this specimen was submitted to you was it three specimens submitted to you or only one specimen A, B, C were ranking to one?
WITNESS:
No sir, three (3) specimens.[23]
Accused-appellant's allegation that he is a victim of a frame-up, which has been held as a shop-worn defense of those accused in drug-related cases, is viewed by the Court with disfavor. Like the defense of alibi, frame-up is an allegation that can easily be concocted.[25] For this claim to prosper, the defense must adduce clear and convincing evidence to overcome the presumption of regularity of official acts of government officials.[26] Absent any proof of motive to falsely accuse him of such a grave offense, the presumption of regularity in the performance of official duty and the findings of the trial court with respect to the credibility of witnesses shall prevail over that of the accused-appellant.[27]
Apart from his defense that he is a victim of a frame-up and extortion by the police officers, accused-appellant could not present any other viable defense. Again, while the presumption of regularity in the performance of official duty by law enforcement agents should not by itself prevail over the presumption of innocence, for the claim of frame-up to prosper, the defense must be able to present clear and convincing evidence to overcome this presumption of regularity. This, it failed to do.
Bayani de Leon's testimony that the accused was being taken as a carnapping suspect only further weakened the defense, considering it was totally out of sync with the testimony of accused-appellant vis-à-vis the positive testimonies of the police officers on the events that transpired on the night of 24 August 2002 when the buy-bust operation was conducted. It is also highly suspect and unusual that accused-appellant never mentioned that he was taken as a carnapping suspect if indeed this were the case, considering it would have been his ticket to freedom.
To recall, on direct examination by the defense counsel, Bayani de Leon testified as follows:
Witness Bayani de Leon's testimony is dubious and lacks credence. From the testimony of Bayani de Leon, it is apparent that accused-appellant would necessarily have known what he was being arrested for, which was entirely inconsistent with accused-appellant's previous testimony. Such inconsistency further diminished the credibility of the defense witness. It would seem that Bayani de Leon's testimony was but a mere afterthought.
ATTY. CONCEPCION:
Mr. Witness, were you able to talk to Narciso Agulay that time he was arrested?
WITNESS:
Yes ma'am, when Narciso Agulay was put inside a room at Station 5 and in that room, I, Riparip and Herrera entered.
ATTY. CONCEPCION:
What was the conversation all about?
WITNESS:
He was being asked if he was one of those who held up a taxi ma'am.
ATTY. CONCEPCION:
What was the response of Narciso Agulay?
WITNESS:
Narciso Agulay was crying and at the same time denying that he was with that person. When we told him that the person we arrested with the firearm was pointing to him, he said that he does not know about that incident and he does not know also that person who pointed him ma'am.[28]
Moreover, Bayani de Leon testified that he allegedly came to know of the fact that accused-appellant was being charged under Republic Act No. 9165 when he (Bayani de Leon) was also detained at the city jail for robbery with homicide, testifying as follows:
This Court, thus, is in agreement with the trial court in finding that:
FIS. ARAULA:
And you only knew that Narciso Agulay was charged of Section 5, R.A. 9165 when you were detained at the City Jail?
WITNESS:
Yes sir.
FIS. ARAULLA:
In fact, you were talking with each other?
WITNESS:
Yes sir, and I asked what is the case filed against him.
FIS. ARAULLA:
And that is the time you know that Narciso Agulay was charged of (sic) Section 5?
WITNESS:
Yes sir.[29]
Bayani himself appears to be a shady character. By his admission he is a bata or agent of PO Vasquez. As far as the court knows, such characters are used by the police because they are underworld character (sic).[30]Finally, the testimony of accused-appellant's brother, Benjamin Agulay, is not convincing. Benjamin, being accused-appellant's brother, we find him to be unreliable. Suffice it to say that, having been given by a relative of the accused-appellant, his testimony should be received with caution.
On this premise, this Court has laid down the "objective" test in scrutinizing buy-bust operations. In People v. Doria,[31] we said:
We therefore stress that the "objective" test in buy-bust operations demands that the details of the purported transaction must be clearly and adequately shown. This must start from the initial contact between the poseur-buyer and the pusher, the offer to purchase, the promise or payment of the consideration until the consummation of the sale by the delivery of the illegal drug subject of the sale. The manner by which the initial contact was made, whether or not through an informant, the offer to purchase the drug, the payment of the "buy-bust" money, and the delivery of the illegal drug, whether to the informant alone or the police officer, must be the subject of strict scrutiny by courts to insure that law-abiding citizens are not unlawfully induced to commit an offense. x x x.It bears to point out that prosecutions of cases for violation of the Dangerous Drugs Act arising from buy-bust operations largely depend on the credibility of the police officers who conducted the same, and unless clear and convincing evidence is proffered showing that the members of the buy-bust team were driven by any improper motive or were not properly performing their duty, their testimonies on the operation deserve full faith and credit.[32]
We thus hold that accused-appellant's guilt has been established beyond reasonable doubt. This Court shall now determine the proper penalties to be imposed on him.
An examination of the Information reveals that accused-appellant was charged with the unauthorized sale and delivery of dangerous drugs consisting of twenty-five hundredths (0.25) gram of methylamphetamine hydrochloride (shabu). From the testimonies of the prosecution witnesses, only one sachet[33] was sold and delivered to the poseur-buyer, PO2 Herrera. The two other sachets[34] were not sold or delivered, but were found by PO2 Herrera inside the right pocket of accused-appellant's pair of shorts upon frisking, after the latter was caught in flagrante delicto during the buy-bust operation.
Accused-appellant could have been charged with the possession of dangerous drugs[35] on account of the second and third sachets. This was not done. He cannot then be convicted of possession of dangerous drugs, without being properly charged therewith, even if proved. Accused-appellant, however, is still guilty, as charged in the Information, of selling and delivering one sachet to the poseur-buyer.
Under Republic Act No. 9165, the unauthorized sale of shabu carries with it the penalty of life imprisonment to death and a fine ranging from Five Hundred Thousand Pesos (P500,000.00) to Ten Million Pesos (P10,000,000.00).
Pursuant, however, to the enactment of Republic Act No. 9346 entitled, "An Act Prohibiting the Imposition of Death Penalty in the Philippines," only life imprisonment and fine, instead of death, shall be imposed.
We, therefore, find the penalty imposed by the trial court, as affirmed by the Court of Appeals - life imprisonment and a fine of P500,000.00 - to be proper.
WHEREFORE, premises considered, the Court of Appeals Decision in CA-G.R. CR No. 01994 dated 31 August 2007 is AFFIRMED.
SO ORDERED.
Velasco,* Jr., and Reyes, JJ., concur.
Brion,** J., I dissent.
Tinga,* J., join Brion's dissent.
* Per Special Order No. 517, dated 27 August 2008, signed by Chief Justice Reynato S. Puno, designating Associate Justices Dante O. Tinga and Presbitero J. Velasco, Jr. to replace Associate Justices Consuelo Ynares-Santiago and Ma. Alicia Austria-Martinez, who are on official leave.
** Justice Arturo D. Brion was designated to sit as additional member replacing Justice Antonio Eduardo B. Nachura per Raffle dated 21 April 2008.
[1] Penned by Associate Justice Portia-Alino-Hormachuelos with Associate Justices Lucas P. Bersamin and Estela M. Perlas-Bernabe, concurring. Rollo, pp. 2-13.
[2] Penned by Judge Jaime N. Salazar, Jr.; CA rollo, pp. 20-23.
[3] Records, p. 1.
[4] Id. at 23.
[5] Id. at 14.
[6] Id.
[7] TSN, 25 October 2004, p. 13.
[8] Records, p. 23.
[9] Id. at 35-49.
[10] Rollo, p. 12.
[11] Pursuant to Section 13, Rule 124 of the Revised Rules on Criminal Procedure, as amended by A.M. No. 00-5-03-SC.
[12] People v. Lee Hoi Ming, 459 Phil. 187, 193 (2003).
[13] Chemistry Report No. D-1020-2002; Records, p. 14.
[14] TSN, 16 October 2002, pp. 3-10.
[15] TSN, 16 October 2002, pp. 20-23.
[16] People v. Valencia, 439 Phil. 561, 574 (2002).
[17] People v. Abbu, 317 Phil. 518, 525 (1995).
[18] Pre-Operation Report; Records, p. 6.
[19] SEC. 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. - The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner:
(1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof.
[20] G.R. No. 179940, 23 April 2008.
[21] TSN, 28 March 2003, pp. 2-3.
[22] Id. at 9-10.
[23] TSN, 15 February 2005, pp. 3-5.
[24] Records, p. 94.
[25] People v. De Leon, 440 Phil. 368, 388 (2002); People v. Lee Hoi Ming, supra note 12 at 195.
[26] People v. De Leon, id., citing People v. Zheng Bai Hui, 393 Phil. 68, 135 (2000), People v. Boco, 368 Phil. 341, 366-367 (1999); Teodosio v. Court of Appeals, G.R. No. 124346, 8 June 2004, 431 SCRA 194, 204.
[27] People v. Bongalon, 425 Phil. 96, 116 (2002).
[28] TSN, 24 January 2006, pp. 6-7.
[29] Id. at 11.
[30] CA rollo, p. 23.
[31] 361 Phil. 595, 621 (1999).
[32] People v. Casolocan, G.R. No. 156890, 13 July 2004, 434 SCRA 276, 282.
[33] TSN, 16 October 2002, pp. 8-9.
[34] Id.
[35] Republic Act No. 9165, Article II, Section 11.