building to seek assistance in serving the warrant.
Security Officer Celedonio Punsaran
SECOND DIVISION
[G.R. No. 166061. July 6, 2007.]
ANDY QUELNAN y QUINO, petitioner, vs. PEOPLE OF THE
PHILIPPINES, respondent.
DECISION
TINGA, J p:
This petition for review seeks the reversal of the Decision 1 of the Court of Appeals in CA-
G.R. CR No. 22001 dated 12 November 2004, affirming the Decision 2 of the Regional
Trial Court (RTC), Branch 138, Makati City, in Criminal Case No. 96-1498, that found Andy
Quelnan y Quino 3 (petitioner) guilty of violating Section 16, Article III of Republic Act (R.A.)
No. 6425, as amended, otherwise known as The Dangerous Drugs Act of 1972.
The accusatory portion of the Information against petitioner reads:
That on or about the 27th day of August, [sic] 1996, in the City of
Makati, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, without being authorized by law,
did then and there willfully, unlawfully and feloniously have in his
possession, custody and control 27.7458 grams of
Methamphetamine Hydrochloride (Shabu), a regulated drug.
Contrary to law. 4
During arraignment, petitioner pleaded not guilty. Trial on the merits ensued.
Witnesses 5 for the prosecution testified as to the following set of facts:
On 27 August 1996, a team from the Police Assistance and Reaction Against Crime
(PARAC) of the Department of Interior and Local Government (DILG), composed of Chief
Inspector Carlos Acosta, SPO4 Isagani Ilas, SPO2 Manubay, SPO2 Sanggalang, SPO2
Teodoro Sinag, SPO2 Mario Magno, SPO2 de Leon, SPO2 Cecil Fajardo, SPO3 Marcelo
Alcancia, SPO3 Dennis Zarcal, and PO1 Eraldo Lectura, 6 was formed to implement a
search warrant issued by the RTC of Manila on 26 August 1996. 7
At around 3:00 p.m., the team proceeded to the Cityland Condominium in South
Superhighway, Makati. Upon arrival, they went directly to the Security Office of said
(Punsaran) accompanied the group and they proceeded to Unit 615. HSaIDc
At their knocking, a male person naked from the waist up opened the door. 8 He was later
identified as petitioner. SPO2 Sinag presented the search warrant to petitioner. 9 Upon
entry, the police operatives searched the unit, which was composed of a small room with
a plywood divider separating the sala from the bedroom. 10 In the presence of petitioner
and Punsaran, the group started searching the place and eventually found on top of the
bedroom table three (3) pieces of transparent plastic sachets containing white crystalline
substances later confirmed by the National Bureau of Investigation (NBI) forensic chemist
as shabu, plastic tubings, weighing scales, an improvised burner, and empty transparent
plastic sachets. 11 Thereafter, the group prepared a receipt of the properties seized and
an Affidavit of Orderly Search allegedly signed by petitioner in their presence and that of
Punsaran. 12
Meanwhile, the group also went to Unit 418 of the same building to serve the warrant and
search the place. The police operatives did not find any occupant in the room.
Petitioner was then brought to the PARAC office for investigation. The pieces of evidence
gathered by the police operatives were brought to the NBI for examination. That same
day, NBI Forensic Chemist Loreto F. Bravo issued a certification stating that upon
examination, the specimen submitted yielded positive for methamphetamine
hydrochloride. 13 The following day, the Arrest Report and Joint Affidavit of Apprehension
were executed by the police operatives leading to the arrest and charging of petitioner for
violation of Section 16, Article III of R.A. No. 6425.
In his defense, petitioner testified that he is a resident of 150 Legaspi Tower 300, 2600
Roxas Boulevard, Manila. 14 He also happens to be the registered owner of Unit 615 of
Cityland Condominium in Makati City, which he leased to Sung Kok Lee (Lee) beginning
May 1996. 15 On 27 August 1996, at around 3:00 p.m., petitioner went to Unit 615 to
collect payment of rental from Lee. Upon knocking at the door, petitioner was greeted by
the maid. The maid told him to wait for Lee inside the room while she went out to buy
some refreshments. After a while, petitioner heard somebody knocking at the door and he
opened it. He saw around 15 to 20 armed men who suddenly barged into the room. The
officer in charge asked for a certain Bernard Kim and petitioner introduced himself as the
owner of the condominium unit. The police operatives then proceeded to search the
house for the next half hour while petitioner was waiting in the sala. Petitioner was also
forced to sign some documents at gunpoint. Petitioner was then handcuffed and brought
to the PARAC office. Two days later, he was brought to the Makati Prosecutor's Office for
inquest and a case was subsequently filed against him. 16 ICTaEH
In behalf of petitioner, Luis Alvarez, the administrator of Cityland Condominium, testified
that Lee was the actual occupant of Unit 615 at the time petitioner was
arrested. 17 Celso Fiesta, petitioner's driver, also stated in court that petitioner resides at
Legaspi Tower. On 27 August 1996, he dropped petitioner off at Cityland Condominium
between 1:00 and 2:00 p.m. Two and a half hours later, he went back to pick him up. As
he was about to park the car, somebody poked a gun at him and introduced himself as
PARAC. Fiesta was ordered to get out of the car and the PARAC team searched the
vehicle. They found a gun and brought Fiesta to the DILG. He was released the following
day. 18
After trial, the RTC found petitioner guilty and sentenced him to suffer imprisonment of
two (2) years, four (4) months and one (1) day of prision correccional as minimum to four
(4) years, nine (9) months and ten (10) days of prision correccional as maximum. 19 In
convicting petitioner, the trial court relied heavily on the clear, straightforward, and candid
testimonies of the prosecution witnesses:
They were all present when the search warrant was implemented at
Unit 615 Cityland Condominium. No infirmity or flaw affecting their
credibility exists. Further, the Court considered that they are public
officers and there was no showing that they were motivated by ill-will
testimonies or bad faith to falsely testify against the accused. There
was no evidence of intent to harass the accused. The presumption
of regularity in the performance of their functions can be fairly
applied. 20
On appeal, the Court of Appeals affirmed the trial court's ruling, modifying however the
penalty to be imposed on petitioner in that he shall suffer the indeterminate penalty of six
months of arresto mayor as minimum to three (3) years and six (6) months of prision
correccional as maximum. 21
Petitioner now seeks the reversal of said judgment. His conviction or acquittal rests on the
validity of the warrantless arrest. The prosecution proffers that petitioner was caught in
flagrante delicto in possession of the subject shabu justifying his warrantless arrest.
Another crucial issue arises, that of the validity of the enforcement of the search warrant
as basis for the presence of the police operatives in the Cityland Condominium unit.
Therefore, these matters may be summarized into two issues for our resolution: whether
the search warrant was properly enforced and whether petitioner was validly arrested
without warrant. DCIEac
The issue as to whether the search warrant was validly implemented necessitates a
review of the tenor of the search warrant, vis-à-vis the conduct of the police operatives
enforcing such warrant. Search Warrant No. 96-585 reads:
REPUBLIC OF THE PHILIPPINES
REGIONAL TRIAL COURT
NATIONAL CAPITAL JUDICIAL REGION
PEOPLE OF THE PHILIPPINES,
Plaintiff,
- versus - SEARCH WARRANT NO. 96-585
FOR: VIOLATION OF R.A. 6425
BERNARD LIM 22 (Dangerous Drug Act 1972)
Room 615 Cityland Condominium
South Superhighway, Makati City
Respondent.
SEARCH WARRANT
TO ANY PEACE OFFICER:
GREETINGS:
It appearing to the satisfaction of the undersigned under examining
under oath PNP SPO4 ISAGANI J. ILAS and his witness, that there are
[sic] reasonable ground to believe that VIOLATION OF R.A. [No.]
6425 has been committed or is about to be committed and there
are good and sufficient reasons to believe that still undetermined
Quantity of Met[h]amphetamine Hydrochloride (Shabu) has [sic] in
his possession and control.
You are commanded to make an immediate search anytime of the
day or night of the premises abovementioned and forthwith seize
and take possession of the abovementioned MET[H]AMPHETAMINE
HYDROCHLORIDE (SHABU) subject of the offense and bring to this
Court said drugs and persons to be dealt with as the law may direct.
You are further directed to submit return within ten (10) days from
today.
GIVEN UNDER MY HAND AND SEAL OF THIS COURT, this 26[th] day
of August 1996 in Manila, Philippines.
HON. WILLIAM M. BAYHON
Executive Judge, RTC
Branch XXIII, Manila
NOTE: This Search Warrant shall be valid for ten (10) days from date
of issue. 23
Petitioner assails the improper enforcement of the search warrant in that despite the
knowledge that petitioner was not the subject of such warrant, the police operatives
proceeded anyway with the search and his resulting arrest. According to him, the Court of
Appeals erred in declaring that where a search warrant is issued for the search of
specifically described premises and not of a person, the omission of the name of the
owner or occupant of such property in the warrant does not invalidate the same.
Petitioner contends that this doctrine applies only if the search warrant does not indicate
with all certainty the owner or occupant of the premises sought to be searched; on the
contrary, the subject search warrant indicated with absolute clarity that the person
subject thereof is Kim. TcaAID
This argument is misplaced. Section 4, Rule 126 of the Revised Rules of Criminal
Procedure provides for the requisites for the issuance of search warrant, to wit:
SEC. 4. Requisites for issuing search warrant. — A search warrant
shall not issue except upon probable cause in connection with one
specific offense to be determined personally by the judge after
examination under oath or affirmation of the complainant and the
 witnesses he may produce, and particularly describing the place to
be searched and the things to be seized which may be anywhere in
the Philippines.
Nowhere in said rule or any other provision in the Revised Rules of Criminal Procedure is it
required that the search warrant must name the person who occupies the described
premises. In Uy v. Bureau of Internal Revenue, 24 the Court has definitively ruled that
where the search warrant is issued for the search of specifically described premises only
and not for the search of a person, the failure to name the owner or occupant of such
property in the affidavit and search warrant does not invalidate the warrant; and where
the name of the owner of the premises sought to be searched is incorrectly inserted in the
search warrant, it is not a fatal defect if the legal description of the premises to be
searched is otherwise correct so that no discretion is left to the officer making the search
as to the place to be searched.
A cursory reading of the search warrant reveals that the police officers were ordered to
make an immediate search of the premises mentioned and to seize and take possession
ofshabu. Furthermore, they were directed to bring "persons to be dealt with as the law
may direct." While petitioner may not be the person subject of the search, the fact that he
was caught in flagrante delicto necessitated his valid warrantless arrest. Therefore, the
fact that petitioner's name was not indicated in the search warrant is immaterial. CTIDcA
Turning to the second issue, petitioner insists that his apprehension cannot be
considered in flagrante delicto because he was not in possession of the forbidden drug.
In every prosecution for the illegal possession of shabu, the following essential elements
must be established: (a) the accused is found in possession of a regulated drug; (b) the
person is not authorized by law or by duly constituted authorities; and (c) the accused has
knowledge that the said drug is a regulated drug. 25
More importantly, the prosecution must prove that the accused had the intent to possess
the drug. Possession, under the law, includes not only actual possession, but also
constructive possession. Actual possession exists when the drug is in the immediate
physical possession or control of the accused. On the other hand, constructive possession
exists when the drug is under the dominion and control of the accused or when he has the
right to exercise dominion and control over the place where it is found. Exclusive
possession or control is not necessary. The fact of possession may be proved by direct or
circumstantial evidence and any reasonable inference drawn therefrom. However, the
prosecution must prove that the accused had knowledge of the existence and presence of
the drug in the place under his control and dominion, as well as the character of the drug.
Since knowledge by the accused of the existence and character of the drug in the place
where he exercises dominion and control is an internal act, the same may be presumed
from the fact that the dangerous drug is in the house or place over which the accused has
control or dominion, or within such premises in the absence of any satisfactory
explanation. 26
For the trial court, the fact of possession was clearly and convincingly established by the
prosecution, to wit:
Prosecution has presented in Court the three (3) plastic sachet[s]
containing 27.7458 grams of methamphetamine hydrochloride as
well as all paraphernalia seized from the accused consisting of an
improvised burner, two (2) pieces of weighing scale, plastic tubing,
aluminum foil, empty transparent plastic sachets, Icom radio,
Calculator, Cellular phone, disposable lighters, and two (2) pieces
[of] blank cartridge. SPO4 Ilas and SPO2 Sinag clearly testified that
they were found on top of a table in a room of [sic] Unit 615 in the
afternoon of August 27, 1996 at a time when only the accused was
inside the premises. Thus, the fact of possession was clearly and
convincingly established. 27 cAECST
The Court of Appeals pointed out that possession necessary for conviction of the offense
of possession of controlled substances may be actual or constructive:
Although the shabu was not found by the searching team on his
person but in the bedroom of the subject premises, appellant is
deemed in possession thereof since he was the only person in said
premises. Moreover, at the time of entry of the searching team in the
subject premises, appellant was half-naked from the waist up which,
as the trial court correctly concluded, only "indicates extreme
familiarity and gives the impression of he being at home" in the
premises, of which he was the registered owner. 28
Petitioner counters that he was in all his right to be in the leased premises because he
had to collect the rentals due him from his tenant. He further argues that the shabu was
allegedly found on top of the table inside the bedroom and not within the immediate
location where he was positioned. When he was found half-naked by police operatives in
another person's house, petitioner defends his act by invoking his "long bond of
friendship" with Lee which made the former treat Lee's home like his own. 29
In support of the appellate court's ruling, the Solicitor General maintained that petitioner
was in constructive possession of the subject shabu by citing several circumstances
showing petitioner's control and dominion over the same. First, the shabu was found on
top of a table in Unit 615 of Cityland Condominium when and where only petitioner was
present inside the premises. Second, petitioner introduced himself as the owner of the
condominium. Third, petitioner admitted that he was at the subject premises allegedly to
collect rentals from the lessee. Fourth, petitioner was found naked from the waist up by
the police operatives upon entering Unit 615. The Solicitor General stresses that
petitioner's actuation of being naked from the waist up while opening the door to greet
visitors is natural only to someone who owns the premises. 30 Fifth, Unit 615 is a studio
unit with a divider and a sala. There was no room with a door to be closed and locked
which can prevent petitioner from having free access to the shabu found on the
table. cHSIAC
This Court is convinced that petitioner's control and dominion over the shabu found on top
of the table were sufficiently established by his questionable presence in Unit 615.
Petitioner's explanation that he went to Lee's unit to collect rentals and was left by the
maid to fend for himself while the latter went out to buy refreshments is highly suspicious.
The maid never came back. The maid's testimony would have corroborated that of
petitioner's.
Despite the presentation of the testimonies of Cityland Condominium Administrator Luis We further find the Solicitor General's conclusion that petitioner was privy to the existence
Alvarez and other witnesses tending to prove that petitioner is the owner and lessor of of the shabu on top of the table credible because the unit was a small room with a piece
Unit 615 and his actual place of residence is in Legaspi Tower, such pieces of evidence of plywood dividing the sala and the bedroom. With petitioner seemingly comfortable in
do not necessarily prove that petitioner did not have access and control over the subject moving about the unit, the shabu and other paraphernalia could not have escaped his
premises. In fact, petitioner's overt act of getting half-naked while opening the door vision.
establishes intimate familiarity with and over his surroundings. Petitioner seeks to justify
such act by invoking his "long bond of friendship" with Lee. This was, however, belied by
the testimony of the building administrator which showed that Lee was a mere walk-in
applicant and he began renting Unit 615 only on 1 May 1996, barely three (3) months
before petitioner was apprehended. 31 Even more telling are the testimonies of the police operatives who conducted the search
and subsequent arrest of petitioner. Inspector Acosta testified that his team conducted a
search on Unit 615 and found petitioner inside the room alone and that the search
Petitioner, in fact, affirmed this fact in his earlier testimony that he allowed Lee, whom he resulted in the discovery of the shabu, to wit:
barely knew, to occupy the unit with only one month rental deposit:
Q: Is it your practice to go personally to that unit to receive the
rental? Q: In connection with your duties then as the member of the
A: Yes, sir. PARAC[,] do you recall if there was any occasion if you
Q: That's your practice? meet a certain person whose name [was] Andy Quelman?
A: Yes, sir.
Q: How much is the lease price? A: Yes, sir.
A: P6,500.00.
Q: Payable monthly?
Q: During what occasion did you meet this person?
A: At the second week of the month.
Q: For what month was that rental where [sic] you were suppose to
collect? A: During [sic] when we conducted the search of the Cityland
A: June and July[,] your Honor. Condominium[,] South Superhighway[,] Makati City. HICSTa
Q: Is it not a practice[,] Mr. Witness[,] that now lessee should pay the
deposit and a few months in advance? Q: If this person Andy Quelman is present in this Courtroom[,] can
A: Yes, but he promise he does not have any money and to produce you point him out in the Court?
later on.[sic]
Q: Which rental he is going to pay?
A: The deposit and the monthly rental. COURT:
Q: What you are saying [sic] when he entered the premises of this
property he does not paid [sic] anything? Will you step down on the witness stand and tap on his shoulder?
A: He just paid for the month of May.
Q: What you are saying you entered into a lease contract with a A: Yes, your Honor.
person you do not know during the said month, that he
entered the unit he was not able to pay you even the
deposit [sic]? IcESaA COURT:
A: He paid me just one month.
Q: And you agreed? Make of record that the witness stepped down on the witness stand
A: Yes, sir. [H]e promised to pay later on. 32 and tapped the shoulder of a person seated on the gallery
who when asked of his name answered his name as Andy
Equally doubtful is the existence of the lease contract allegedly executed between Quelman.
petitioner and Lee which purportedly validates the presence of the former in Unit 615,
which was to collect rentals from the latter. As the Solicitor General correctly observed, Q: You said that you conducted a search, when was this?
the lease agreement is undated and unnotarized. 33 During cross-examination, the
building administrator who presented a copy of the lease agreement could not even
A: August 27, 1996.
remember when the contract was executed. 34 Petitioner also testified that the rentals
are payable at the second week of each month. 35 His statement is inconsistent with his
avowed effort to collect payment in the last week of the month, particularly on 27 August Q: What time?
1996.
A: 3:00 o'clock in the afternoon. Q: Who?

Q: Where did you conduct the search? A: Andy Quelman.

A: At room 615 Cityland Condominium[,] South Superhighway[,] PROSECUTOR GARVIDA:

Makati City.
Q: Can you describe[,] Mr. Witness[,] the appearance of Mr. Andy
xxx xxx xxx Quelman when he opened the door?

Q: By what authority did you conduct your search at room or [U]nit A: He is half[-]naked wearing pants.
615 Cityland Condominium[,] South Superhighway[,]
Makati City. Q: What about the upper body?

A: We are armed with [a] search warrant. A: Naked.

Q: Issued by whom? Q: Upon presenting the search warrant[,] what did you do next?

A: The RTC Judge Hon. Bayhon, City of Manila. A: We proceeded to the room to conduct the search.

xxx xxx xxx xxx xxx xxx

Q: So upon arriving at the 6th floor what did you do, or what did you Q: You said you proceeded to conduct the search. [W]hat was Mr.
do? Quelman doing while you are conducting the
search? EIDTAa
A: We knocked at the door of [R]oom 615.
A: He was sitting at the table inside the room.
Q: And what happened next?
xxx xxx xxx
A: Somebody opened the door.
Q: Now can you describe to this Court how you conducted the
Q: And after the door was opened[,] what did you and your team do search[,] Mr. Witness?
next? CHcETA
A: First we proceeded to his room and I saw Mr. Quelman sitting at
A: We presented our search warrant. his table. Later on we found at his table all the
paraphernalia.
Q: To whom?
Q: Can you enumerate to this Court what[,] if any[,] did you find [sic]
COURT: during the search?

Would you know who open[ed] the door? A: We found 3 transparent plastic containing white crystalline
substance.
A: Yes, sir.
Q: Where did you find [sic]?
PROSECUTOR GARVIDA:
A: Atop the table.
 xxx xxx xxx WHEREFORE, the instant petition is DENIED and the assailed Court of Appeals Decision in
CA-G.R. CR No. 22001 is AFFIRMED with MODIFICATION in that petitioner ANDY QUELNAN
Q: What did you do with Mr. Quelman after you found these items y QUINO is sentenced to suffer an indeterminate penalty of imprisonment ranging from
which you [have] just enumerated? Four (4) Months and One (1) Day of arresto mayor in its medium period as minimum to
Three (3) Years of prision correccional in its medium period as maximum. TcCDIS
A: We bring [sic] Andy Quelman to our office. 36
SO ORDERED.
The foregoing testimony was substantially corroborated by SPO4 Isagani Ilas and SPO2
Teodoro Sinag who were both part of the arresting team. These witnesses positively Carpio, Carpio-Morales and Velasco, Jr., JJ., concur.
identified petitioner as the occupant of Unit 615 at the time the search was conducted
and that he was caught in flagrante delicto when the shabu was found in his constructive Quisumbing, J., is on official leave.
possession.
Footnotes
The trial court placed great weight on the testimonies of these police officers and
accorded them the presumption of regularity in the performance of their functions. 37 The 1. Penned by Associate Justice Edgardo P. Cruz, and concurred in by Associate Justices
prosecution of drug cases largely depends on the credibility of the police officers. The Godardo A. Jacinto and Jose C. Mendoza.
factual findings of the trial court especially those which revolve on matters of credibility of
witnesses deserve to be respected when no glaring errors bordering on a gross
misapprehension of the facts or no speculative, arbitrary, and unsupported conclusions 2. Penned by Judge Sixto Marella, Jr.
can be gleaned from such findings. The evaluation of the credibility of witnesses and their
testimonies is best undertaken by the trial court because of its unique opportunity to 3. Also identified in the records as Andy Quelman y Quinoy.
observe the witnesses' deportment, demeanor, conduct, and attitude under grilling
examination. 38 In this case, the RTC was upheld by the Court of Appeals. Petitioner has
not convinced this Court of the existence of any of the recognized exceptions 39 to the
conclusiveness of the findings of fact of the trial and appellate courts. ADTEaI

In sum, petitioner's unlawful possession, as exhibited by his control and dominion over
the shabu found on top of the table, was duly established by the following evidence: his
presence in Unit 615 at the time of his arrest; 40 his representation to the police that he
was the owner of the unit; 41 his half-naked state when he opened the door, strongly
implying that he had stayed in the house longer than he claimed to be; and finally, the fact
that the shabu was found on top of a table beside the bed which appears to be within
sight of petitioner as there was a mere divider between the sala and bedroom. 42

Having caught petitioner in flagrante delicto, the police operatives are obligated to
apprehend him even without a warrant of arrest.

We shall now determine the imposable penalty. Both the lower courts erred as to the
respective penalties they imposed. Section 16, Article III of R.A. No. 6425, as amended,
provides that if the quantity of the regulated drug involved, in this case, shabu, is less
than 200 grams, the penalty to be imposed shall range from prision
correccional to reclusion perpetua. Since petitioner was charged with the possession of
27.7458 grams of shabu, the imposable penalty is prision correccional. 43 Applying the
Indeterminate Sentence Law, the petitioner is sentenced to suffer an indeterminate
penalty ranging from four (4) months and one (1) day of arresto mayor in its medium
period as minimum, to three (3) years ofprision correccional in its medium period as
maximum.

SECOND DIVISION
[G.R. No. 173051. July 31, 2007.]
[Formerly G.R. No. 161678]
THE PEOPLE OF THE PHILIPPINES, appellee, vs.
GERARDO ORTEZA, appellant.
DECISION
TINGA, J p:
Gerardo Orteza was charged before the Regional Trial Court of Tarlac City, Branch 64, with
illegal sale of shabu in violation of Section 5, Article II of Republic Act No. 9165 1 (R.A. No.
9165). The Information dated 20 November 2002 against him reads:
INFORMATION
The undersigned Assistant Provincial Prosecutor (detailed), upon his
inquest investigation, accuses GERARDO ORTEZA y Orteza, a
resident of Block 9, San Nicolas, Tarlac City and presently detained
at Camp Macabulos, Tarlac City of the crime of Violation of Section
5, Article II of Republic Act 9165, (Dangerous Drug of 2002),
committed as follows:
That on November 19, 2002, at around 9:00 o'clock in the evening,
at Tarlac City and within the jurisdiction of this Honorable Court,
accused, did then and there willfully, unlawfully and criminally sell,
dispense and deliver .063 gram of Methamphetamine
Hydrochloride, known as Shabu, a dangerous drug, to poseur buyer
SPO1 Rodolfo Ramos for P100.00, without being authorized by law.
CONTRARY TO LAW. 2
Upon arraignment, appellant entered a plea of not guilty. 3 During trial, the prosecution
adopted the Joint Affidavit of Arrest 4 dated 20 November 2002 executed by PO2 Allan J.
Lagasca, PO3 Daniel I. Lingsay, SPO1 Rodolfo L. Ramos, and SPO4 Pascual M. Delos
Reyes as their testimonies. Delos Reyes and Lagasca appeared in court and confirmed
their statements in the Joint Affidavit. 5 DaTHAc
According to the Joint Affidavit, a team comprised of the above-mentioned police officers
was formed to conduct a buy-bust operation at Block 9, San Nicolas, Tarlac City on 19
November 2002 to apprehend suspected drug peddlers. The suspects have previously
been under a week-long surveillance after the police officers received reports about their
illegal activities. 6
The team with its back-up arrived at the place at around nine o'clock in the evening of
said date. The appointed poseur-buyer SPO1 Ramos, together with the informant,
approached the two (2) suspects Leng Leng and Buboy while the back-up team positioned
itself nearby. SPO1 Ramos purchased one (1) sachet of shabufor One Hundred Pesos
(P100.00) from Buboy. Then, SPO1 Ramos gave the pre-arranged signal. Immediately, the
rest of the team rushed to the scene and placed the two (2) suspects under arrest. After a
body search, the marked money was recovered from Buboy and another sachet
of shabu was confiscated from Leng Leng. Thereafter, the suspects were brought to Camp
Macabulos where Buboy identified himself as Gerardo Orteza. 7
Later upon examination, Engr. Marcene Agala of the Regional Crime Laboratory, Camp
Olivas, San Fernando, Pampanga, confirmed that the two (2) sachets recovered from the
scene were positive for methamphetamine hydrochloride. 8
As lone witness for the defense, appellant testified that on 19 November 2002 at around
5:30 p.m., he was about to enter the house when he was halted by PO2 Lagasca. Then,
Lagasca allegedly forced him to go with him. Lagasca supposedly asked appellant not to
make a scene as he would be freed later on. Subsequently, appellant was taken to Camp
Macabulos. Appellant denied selling shabu. He denied ever speaking to SPO1 Ramos, the
poseur-buyer. He also denied knowing a certain Leng Leng. 9
After trial, the trial court rendered a Decision 10 dated 4 April 2002, disposing as follows:
WHEREFORE, premises above considered finding the guilt of the
accused proven beyond reasonable doubt by the Prosecution for
violation of Section 5, Article II of Republic Act [No.] 9165, this Court
sentences Gerardo Orteza y Orteza to [a] penalty of life
imprisonment to death and a fine ranging from Ph[P]500,000.00 to
Ph[P]10,000,000.00 cost against the accused.
SO ORDERED. 11
The judgment of conviction was elevated to the Court for automatic review. In a
Resolution 12 dated 8 November 2005 of the Court in G.R. No. 161678, 13 the case was
transferred to the Court of Appeals pursuant to the Court's ruling in People v. Efren
Mateo. 14 IaAHCE
Before the Court of Appeals, appellant argued that the trial court erred: (1) in giving
credence to the testimonies of the prosecution witnesses; and (2) in finding him guilty of
violating Section 5, Article II of R.A. No. 9165. 15
Except for some modifications, the Court of Appeals in a Decision 16 dated 28 February
2006, in CA-G.R. CR No. 01813, affirmed the decision of the trial court. The dispositive
portion of the decision reads:
WHEREFORE, in light of the foregoing premises, the decision
appealed from is hereby AFFIRMED save for a modification in the
imposed penalty which is now fixed at life imprisonment and a fine
of P500,000.00.
SO ORDERED. 17
The Court of Appeals held that the requisites of the crime of illegal sale of prohibited
drugs were borne out by the evidence on record. The identity of appellant as the seller
was established by the positive testimonies of the members of the buy-bust team; the test
conducted on the crystalline substance sold by appellant showed that it was positive
for shabu; third, the exchange between the poseur-buyer and appellant was for a
consideration and in fact the marked money was recovered from appellant when a body
search was conducted on his person. 18
Although the poseur-buyer was not presented in court, the appellate court ruled that the
unswerving and compatible testimonies of the two members of the buy-bust team, who
were eyewitness to the transaction, sufficed to pin down appellant. 19 Against these
positive declarations, appellant only professed bare denials which cannot sway judgment
when unsupported, the appellate court noted. 20
The Court of Appeals however modified the penalty imposed considering the trial court's
failure to specify the actual penalty to be suffered by appellant and the amount of fine he
was supposed to pay. Instead, it sentenced appellant to suffer the penalty of life
imprisonment and pay a fine of P500,000.00. 21
Appellant is now before the Court reiterating his contention that the prosecution was not
able to establish with moral certainty the actual transaction or sale of shabuas a fact. He
maintains that the non-presentation of the poseur-buyer is fatal to this case as the two
police officers who testified were, by their own admission, located at a distance and could
not hear the alleged conversation between appellant and the poseur-buyer. 22 Through
his Manifestation (In Lieu of Supplementary Brief) dated 9 August 2006, 23 appellant
stated that he had exhaustively argued all the relevant issues in his Accused-Appellant's
Brief filed before the Court of Appeals and that the filing of a supplemental brief might
result in a repetition of the same arguments. Thus, he manifested that he was adopting
the Accused-Appellant's Brief as Supplemental Brief. 24 The Office of the Solicitor General
manifested that it was no longer filing a supplemental brief. 25 SDAaTC
There is merit in the appeal.
The Constitution mandates that an accused shall be presumed innocent until the contrary
is proven beyond reasonable doubt. It is the burden of the prosecution to overcome such
presumption of innocence by presenting the quantum of evidence required. Corollarily,
the prosecution must rest on its own merits and must not rely on the weakness of the
defense. In fact, if the prosecution fails to meet the required quantum of evidence, the
defense may logically not even present evidence in its own behalf. In which case, the
presumption of innocence shall prevail and hence, the accused shall be acquitted.
However, once the presumption of innocence is overcome, the defense bears the burden
of evidence to show reasonable doubt as to the guilt of the accused. Reasonable doubt is
that doubt engendered by an investigation of the whole proof and an inability after such
investigation to let the mind rest each upon the certainty of guilt. Absolute certainty of
guilt is not demanded by the law to convict a criminal charge, but moral certainty is
required as to every proposition of proof requisite to constitute the offense. 26
In a prosecution for illegal sale of dangerous drugs, the following must be proven: (1) that
the transaction or sale took place; (2) the corpus delicti or the illicit drug was presented
as evidence; and (3) that the buyer and seller were identified. 27 What is material is the
proof that the transaction or sale actually took place, coupled with the presentation in
court of the prohibited or regulated drug. The delivery of the contraband to the poseur-
buyer and the receipt of the marked money consummate the buy-bust transaction
between the entrapping officers and the accused. 28
The Court believes that the prosecution was not able to establish with certainty all the
elements necessary for the conviction of appellant for illegal sale of shabu.
First, there appears nothing in the records showing that police officers complied with the
proper procedure in the custody of seized drugs as specified in People v. Lim, 29 i.e., any
apprehending team having initial control of said drugs and/or paraphernalia should,
immediately after seizure or confiscation, have the same physically inventoried and
photographed in the presence of the accused, if there be any, and or his representative,
who shall be required to sign the copies of the inventory and be given a copy thereof. The
failure of the agents to comply with the requirement raises doubt whether what was
submitted for laboratory examination and presented in court was actually recovered from
appellant. It negates the presumption that official duties have been regularly performed
by the police officers.
In People v. Laxa, 30 where the buy-bust team failed to mark the confiscated marijuana
immediately after the apprehension of the accused, the Court held that the deviation from
the standard procedure in anti-narcotics operations produced doubts as to the origins of
the marijuana. Consequently, the Court concluded that the prosecution failed to establish
the identity of the corpus delicti. CDScaT
The Court made a similar ruling in People v. Kimura, 31 where the Narcom operatives
failed to place markings on the seized marijuana at the time the accused was arrested
and to observe the procedure and take custody of the drug.
More recently, in Zarraga v. People, 32 the Court held that the material inconsistencies
with regard to when and where the markings on the shabu were made and the lack of
inventory on the seized drugs created reasonable doubt as to the identity of the corpus
delicti. The Court thus acquitted the accused due to the prosecution's failure to
indubitably show the identity of the shabu.
Significantly, Engr. Agala, the chemical engineer who conducted the laboratory test on the QDid you conduct surveillance on him, Mr. Witness?
two (2) sachets, testified in part as follows:
AYes, ma'am.
ON CROSS-EXAMINATION
QThen you could have easily gotten a search warrant or a warrant of
BY ATTY. ABRENICA arrest for him[,] isn't it[?] [O]r you did not, did you, Mr.
Witness?
xxx xxx xxx
ABuy-bust operation, ma'am.
QLikewise, you did not conduct the fingerprint examination to find
out or dusting of fingerprint on these sachets to find out if QPrior to this, you have not arrest [sic] the accused, is that correct?
these indeed were handled by the accused Gerardo Orteza,
correct? ANot yet, ma'am.

AYes, ma'am. 33 QDo you know SPO1 Rodolfo Lindo Ramos?

Secondly, the Court observes that the prosecution did not present the poseur-buyer who AYes, ma'am.
had personal knowledge of the transaction. In People v. Uy, 34 the Court ruled that the
non-presentation of the poseur-buyer is fatal only if there is no other eyewitness to the
illicit transaction. This doctrine was reiterated in People v. Ambrosio. 35 In both cases, QAnd you are the back-up in this incident or his arrest[,] Mr. Witness,
however, not only were there other eyewitnesses to the illegal sale, the non-presentation or you are the poseur-buyer?
of the poseur-buyer was also satisfactorily explained. In People v. Uy, the police officer
who acted as the poseur-buyer at the time of the trial was paralyzed and confined in a AI was the back-up, ma'am.
hospital due to gunshot wounds. In People v. Ambrosio, the poseur-buyer was working on
another buy-bust operation. The Court therein stated that to require her to testify in open
QSo as a back-up, you positioned yourself at a place where you will
court would divulge her identity and expose her to danger considering that there was
not be seen by the accused, correct?
another buy-bust operation going on.

AWe can see then, ma'am.

In this case, though, after the poseur-buyer, SPO1 Ramos, failed to appear in court
despite having been subpoenaed six (6) times, 36 the prosecution did not even bother to
offer any explanation for his non-appearance considering that he, a police officer, was no QBut he cannot see you?
different from the other witnesses who were presented in the end by the prosecution. In
Ramos's place, the prosecution presented two other police officers, who although AYes, ma'am. DSHTaC
members of the back-up team of the buy-bust operation were, in the Court's view, not
reliable eyewitnesses to the transaction. Pertinently, PO2 Lagasca feebly testified as
follows: ScaHDT QAnd it was Lindo Ramos who acted as a poseur buyer?

ON CROSS-EXAMINATION BY AYes, ma'am.

ATTY. ABRENICA — Counsel for the Accused QNow it was only when this Lindo Ramos gave a pre-arranged signal
that you approached the accused, is that correct?

Q Mr. Witness, this is your first time to see the accused [sic]?
AYes, ma'am.
A No, ma'am.
QSo from a distance you can only see the signal, what was that
signal, Mr. Witness?
QWhat do you mean no[?] [H]ave you seen him before?
ABy waving his right hand, ma'am.
AYes, ma'am.
 QSo you cannot hear or what they were talking about, is that
correct?

AYes, ma'am. 37

Moreover, the testimonies of the two police officers did not include any positive face-to-
face identification in open court of appellant as the seller of shabu, an aspect which was
crucial to establish appellant's role in the alleged transaction. It is likewise unclear in the
Joint Affidavit of Arrest, which was adopted by the two police officers as their direct
testimony, whether the two had a clear and close view of the alleged sale of shabu to
support the assertion that they were eyewitnesses to it. The affidavit only stated that the
back-up men "who were then placed in a strategically [sic] position near the vicinity are
watching the on going deal." 38 As such, the testimony of the poseur-buyer, in this case
Ramos, was pivotal as only he could testify on what had really transpired during the
moment of the alleged sale of shabu.His non-presentation in this case was fatal, absent
any explanation for his non-appearance and reliable eyewitness who could testify in his
place.

Another befuddling point was the non-prosecution of Leng Leng for the same crime. It was
testified that both he and appellant participated in the illegal sale but records were silent
as to why he was not indicted for the crime especially since the amount
of shabu mentioned in the information was the total sum of the shabufound in the two (2)
sachets recovered from the scene, one from appellant and the other one from Leng
Leng. 39 In addition, no proof of conspiracy was adduced to hold appellant liable for the
sale of both sachets. In fact, the second sachet was never sold as it was confiscated from
Leng Leng after a body search. While Section 5, Article II, R.A. No. 9165 prohibits and
penalizes the illegal sale of shabu regardless of the amount, the paucity of evidence on
these material points engender reasonable doubt on the credibility of the prosecution's
theory.

All told, the totality of the evidence presented in the instant case did not support
appellant's conviction for violation of Section 5, Article II, R.A. No. 9165, since the
prosecution failed to prove beyond reasonable doubt all the elements of the offense.
Accordingly, the presumption of innocence should prevail and the exoneration of
appellant declared as a matter of right.

WHEREFORE, the Decision dated 29 October 2003 of the Regional Trial Court of Tarlac
City, Branch 64 in Criminal Case No. 12420 is REVERSED and SET ASIDE. Appellant
GERARDO ORTEZA y ORTEZA is ACQUITTED of the crime charged on the ground of
reasonable doubt and ordered immediately RELEASED from custody, unless he is being
held for some other lawful cause. TEHIaA

The Director of the Bureau of Corrections is ORDERED to implement this Decision

forthwith and to INFORM this Court, within five (5) days from receipt hereof, of the date
appellant was actually released from confinement. Costs de oficio.

SO ORDERED.

Quisumbing, Carpio, Carpio-Morales and Velasco, Jr., JJ., concur.

THIRD DIVISION
[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 p:
Assailed before Us is the Decision 1 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. cTECHI
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 substance 8 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, 10the 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: CTAIDE
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 apalo-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. DTaAHS
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 Resolution 19 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. CEDScA
At the outset, it must be stated that appellant raised the police officers' alleged non-
compliance with Section 21 21 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. Maria 22 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. HCSDca
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. cDaEAS
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 aITECD
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.

Ynares-Santiago, Austria-Martinez, Nachura and Reyes, JJ., concur.

THIRD DIVISION
[G.R. No. 170234. February 8, 2007.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BERNARDO F. NICOLAS, accused-appellant.
DECISION
CHICO-NAZARIO, J p:
Assailed before Us is the decision 1 of the Court of Appeals in CA-G.R. CR-H.C. No. 01191 dated
23 August 2005 which affirmed in toto the decision 2 of the Regional Trial Court (RTC) of Pasig
City, Branch 164, in Criminal Case No. 11566-D, finding accused-appellant Bernardo Felizardo
Nicolas, a.k.a. Bernie, guilty of violation of Section 5, 3 Article II of Republic Act No. 9165,
otherwise known as Comprehensive Dangerous Drugs Act of 2002.
In an Information dated 7 August 2002, accused-appellant Bernardo Felizardo Nicolas, a.k.a.
Bernie, was charged with Violation of Section 5, Article II of Republic Act No. 9165, the
accusatory portion thereof reading:
On or about August 6, 2002, in Pasig City and within the jurisdiction of this Honorable Court, the
accused, who is not being authorized by law, did, then and there willfully, unlawfully and
feloniously sell, deliver and give away to PO2 Danilo S. Damasco, one (1) heat-sealed
transparent plastic sachet containing 0.42 gram of white crystalline substance which was found
positive to the test for methamphetamine hydrochloride (shabu), a dangerous drug, in violation
of the said law. 4
The case was raffled to Branch 164 of the RTC of Pasig City and docketed as Criminal Case No.
11566-D.
When arraigned on 30 September 2002, appellant, assisted by counsel de oficio, pleaded "Not
Guilty" to the charge. 5 The Pre-Trial Conference of the case was terminated on the same day.
Thereafter, the case was heard.
The prosecution presented two witnesses: PO2 Danilo S. Damasco 6 and SPO2 Dante
Zipagan, 7 both members of the Station Drug Enforcement Unit of the Pasig Police Station. The
testimony of Police Inspector Delfin A. Torregoza, Forensic Chemical Officer, Eastern Police
District Crime Laboratory Office, was, however, dispensed with after both prosecution and
defense stipulated that the specimen 8 submitted in court is the same one mentioned in the
Request for Laboratory Examination 9 and in Chemistry Report No. D-1501-02E, 10 and that
same was regularly examined by said forensic chemical officer. acHITE
For the defense, appellant 11 took the witness stand together with his common-law wife, Susan
dela Cruz Villasoto, 12 and brother, Jose Nicolas. 13
The diametrical versions of the People and the accused are narrated by the trial court as follows:
VERSION OF THE PEOPLE
On August 6, 2002, at about 9:30 o'clock in the evening, a confidential informant stepped inside
the office of the Station Drug Enforcement Unit of the Pasig Police Station, Pasig City and
informed SPO4 Numeriano S. De Lara, Officer In-Charge of that unit, that a certain alias Bernie
was selling shabu at his place along Santiago Street, in Barangay Bagong Ilog, Pasig City.
Immediately, SPO4 De Lara organized a team to conduct a surveillance operation and the
entrapment of alias Bernie, if warranted by the situation. The team was composed of PO2 Danilo
S. Damasco, PO2 Montefalcon, PO2 Orig and SPO2 Zipagan who was the team leader. PO2
Damasco was designated to act as poseur-buyer in the buy-bust operation while the other police
officers would serve as his back-ups to assist in the possible apprehension of alias Bernie. After
a short briefing, the team of police operatives, including the confidential informant, proceeded to
the target place at Santiago Street, Bagong Ilog, Pasig City. SPO2 Dante Zipagan, the team
leader, instructed the confidential informant to first check and look for the whereabouts of alias
Bernie. The informant, after five minutes, returned and informed the team that he found alias
Bernie in front of his house and the team decided to proceed with the planned entrapment of
alias Bernie. PO2 Damasco and the informant then walked towards the house of alias Bernie
while the back-up police officers placed themselves strategically in different positions where they
could see PO2 Damasco and the informant in the act of negotiating with alias Bernie. PO2
Damasco and the informant saw alias Bernie conversing with a male person in front of his
house. After the informant greeted alias Bernie, he introduced PO2 Damasco to alias Bernie
whose real name is Bernardo Nicolas, the accused herein, as a user of shabu and would like
now to buy some Php500.00 worth of the substance from him. Alias Bernie, responded that he
still had one piece of that stuff and was willing to sell it to poseur-buyer Damasco. Accused
asked for the money which was pre-marked by Damasco with initials DSD (Exh. D-1) which
stands for the name of Danilo S. Damasco. Damasco then handed the five hundred peso bill
(Exh. D) to accused who accepted it. Accused, in return, gave Damasco one plastic sachet
containing white crystalline substance which looked like that of shabu. For a moment, PO2
Damasco examined the plastic sachet and its content and then announced to the accused he
was a police officer and arresting him for violation of the drugs law. Accused Bernardo Nicolas
alias Bernie got shocked and surprised. As Damasco was holding the accused, the back-up
officers arrived and assisted him in handling the accused. Damasco recovered the buy-bust
money and the police team took him away to their station, where he was turned over to a police
investigator together with the small plastic sachet of suspected shabu that Damasco had
purchased from the accused. SPO4 Numeriano S. De Lara sent the small plastic sachet
containing white crystalline substance which was then marked with EXH.-A BFN/080602 to the
Eastern Police District Crime Laboratory Office at St. Francis St., Mandaluyong City, as per his
letter memorandum dated August 6, 2002 (Exhs. B and B-1). The specimen was received at the
EPD Crime Laboratory office by P/Insp. Delfin Torregoza, a Forensic Chemical Officer, who
weighed and examined the specimen which he found to contain 0.42 gram of white crystalline
substance which was tested positive for methamphetamine hydrochloride as per his Chemistry
Report No. D-1501-02E (Exhs. C and C-1). Accused Bernardo F. Nicolas was consequently
charged with Violation of Section 5, Article II of R.A. 9165.
VERSION OF DEFENSE
xxx xxx xxx
[Appellant] testified that on August 6, 2002 at about 10:00 o'clock in the evening, he was
outside of his house conversing with his brother, Jose Nicolas, and a friend named Arnold
Mendez. He had just came (sic) out of his house in order to close the billiard salon that he
owned. As they were then huddled in animated conversation, two motor vehicles stopped in front
of his billiard parlor, a car and a van. The passengers of the van alighted and one of them
pointed a gun at him. As accused was not familiar with the men, he could not recognize them.
He learned, later on, that the man who poked a gun at him was PO2 Danilo Damasco who was
accompanied by other persons numbering about four or five of them. Damasco warned him not
to move, holding and waiving in his hand a plastic sachet which Damasco said he bought from
accused Bernardo Nicolas. The police officers then proceeded to put handcuffs on the hands of
the accused, in spite of his protest denying anything to do with the plastic sachet of alleged
shabu being displayed by Damasco. The police officers also handcuffed and arrested Arnold
Mendez. Jose Nicolas did not allow himself to be arrested and handcuffed. When he sensed that
he would be handcuffed, he immediately fled and ran into his house, locking himself in. Luckily
for him, the police officers did not pursue him any longer. He just watched the incident by
peeping through the window of his house. Accused Bernardo Nicolas alias Bernie and Arnold
Mendez, were then forced into the police vehicle and taken to the police station, although
Nicolas showed resistance which forced the police officers to physically carry him into their
vehicle. Accused Bernard Nicolas was then charged with Violation of Section 5, Article II, R.A.
9165. TDCaSE
Appellant denies the charge. He insists that there was no buy-bust operation and that
the shabu (methamphetamine hydrochloride) allegedly sold by him to the poseur buyer was
planted evidence. He claims that the trumped-up charge is a way of getting even with him
because he, together with his wife, had filed a case before the National Police Commission
(NAPOLCOM) for grave misconduct against several policemen (PO2 Joel Tapec, PO1 Christopher
Semana and five John Does) assigned at the Station Drug Enforcement Unit of the Pasig Police
Station, for entering and robbing their house on 5 February 2002. He further claims that the
policemen who arrested him for allegedly selling shabu were the John Does mentioned in the
complaint he and his wife filed with the NAPOLCOM.
In its decision dated 8 October 2003, the trial court found appellant guilty beyond reasonable
doubt of the crime charged and sentenced him to life imprisonment. The dispositive portion of
the decision reads:
WHEREFORE, the court finds accused BERNARDO F. NICOLAS GUILTY beyond reasonable doubt,
as principal of violation of Section 5, Article II, R.A. 9165 and hereby imposes upon him the
penalty of life imprisonment and a fine of five hundred thousand pesos (P500.00), 14 with the
accessory penalties provided under Section 35 thereof. 15
From the decision, appellant filed a Notice of Appeal informing the court that he is appealing the
same to the Court of Appeals. 16 Though the Notice of Appeal specified that the decision is
being appealed to the Court of Appeals, the trial court nonetheless forwarded the records of the
case to the Supreme Court pursuant to Section 3, Rule 122 of the Rules of Court. 17
On 22 November 2004, appellant filed an appellant's brief before the Supreme Court. On 31
March 2005, the Office of the Solicitor General filed the People's brief. 18
Since the penalty imposed by the trial court was life imprisonment, the case was remanded to
the Court of Appeals for appropriate action and disposition pursuant to our ruling inPeople v.
Mateo. 19
On 23 August 2005, the Court of Appeals rendered its decision affirming in full the decision of
the trial court. 20 Appellant filed a Notice of Appeal assailing the decision before the Supreme
Court. 21
With the elevation of the records of the case to the Supreme Court, the parties were required to
submit their respective supplemental briefs, if they so desire, within 30 days from notice. 22 The
parties opted not to file supplemental briefs on the ground that they have fully argued their
positions in their respective briefs. 23
Appellant assigns as errors the following:
I.
THE TRIAL COURT GRAVELY ERRED IN GIVING FAITH AND CREDENCE TO THE UNRELIABLE
TESTIMONIES OF THE PROSECUTION WITNESSES AND IN TOTALLY DISREGARDING THE VERSION
OF THE DEFENSE.
II.
THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY OF THE
CRIME CHARGED DESPITE FAILURE OF THE PROSECUTION TO PROVE HIS GUILT BEYOND
REASONABLE DOUBT.
Appellant observed that (1) the policemen did not conduct surveillance first; (2) they did not
have any agreement as regards the money to be used in buying the shabu; and (3) they failed to
talk about any signal to inform the back-up policemen that the transaction has been
consummated. He contends that the absence of these things is unusual and that it made even
more doubtful that the buy-bust operation really took place.
These observations will not purge him of the charge.
Settled is the rule that the absence of a prior surveillance or test-buy does not affect the legality
of the buy-bust operation. There is no textbook method of conducting buy-bust operations. The
Court has left to the discretion of police authorities the selection of effective means to
apprehend drug dealers. 24 A prior surveillance, much less a lengthy one, is not necessary
especially where the police operatives are accompanied by their informant during the
entrapment. 25 Flexibility is a trait of good police work. 26 In the case at bar, the buy-bust
operation was conducted without need of any prior surveillance for the reason that the informant
accompanied the policemen to the person who is peddling the dangerous drugs. CDaTAI
Appellant faults the policemen because there was no agreement or discussion among
themselves as regards the marked money and the pre-arranged signal.
From the records, it is clear that it was PO2 Damasco who prepared the marked money 27 as Q: Less than a meter?
shown by his initials on the top right corner of the P500.00 bill that was used in purchasing A: Yes, sir.
the shabu from appellant. 28 The fact that the team leader and the other members of the team Q: What was the response of Bernie as you were introduced as a shabu user?
did not discuss or talk about the marked money does not necessarily mean that there was no A: He checked my personality first and he asked me if I will get the stuff, he asked me in
buy-bust operation. As explained by SPO2 Zipagan, since PO2 Damasco was the designated tagalog, kukuha ka ba?
poseur buyer it was the latter's discretion as to how to prepare the marked money. It is not Q: And what did you tell him?
required that all the members of the buy-bust team know how the marked money is to be A: I answered him, kung mayroon kukuha ako. ADcHES
produced and marked inasmuch as they have their respective roles to perform in the operation. Q: And what was his answer?
As this Court sees it, the other members of the team left the matter of the marked money to one A: He answered me that, mayroon kaya tamang-tama kasi isa na lang itong natitira sa akin
person — the poseur buyer — because it was he who was to deal directly with the drug pusher. panggamit ko sana.
Q: At that very moment, after you were told by Bernie isa na lang ang natitira, what did you?
As to the absence of a pre-arranged signal, same is not fatal to the cause of the prosecution. The A: I asked him kung puwede pang bilhin and then he told me, isa na lang ito panggamit ko,
employment of a pre-arranged signal, or the lack of it, is not indispensable in a buy-bust magkano ba ang kukunin mo?
operation. What determines if there was, indeed, a sale of dangerous drugs is proof of the Q: What was your answer?
concurrence of all the elements of the offense. A buy-bust operation is a form of entrapment A: I told him, P500.00 worth.
which has repeatedly been accepted to be a valid means of arresting violators of the Dangerous Q: And what is [his] reply?
Drugs Law. 29 The elements necessary for the prosecution of illegal sale of drugs are (1) the A: Okay, ibibigay ko na lang sa inyo.
identity of the buyer and the seller, the object, and consideration; and (2) the delivery of the Q: And what happened next?
thing sold and the payment therefore. 30 What is material to the prosecution for illegal sale of A: He asked my payment first.
dangerous drugs is the proof that the transaction or sale actually took place, coupled with the Q: And what did you do after he asked your payment?
presentation in court of evidence of corpus delicti. 31 A: I gave him the pre-marked money.
Q: What (sic) that bill made of?
A: P500.00 bill.
In the case under consideration, all these elements have been established. The witnesses for Q: Where did you put that marking in that bill?
the prosecution clearly showed that the sale of the drugs actually happened and that A: I put the marking on the upper right portion of the bill inside the 500.
the shabu subject of the sale was brought and identified in court. The poseur buyer (PO2 Q: What are the markings did you put there?
Damasco) categorically identified appellant as the seller of the shabu. His testimony was A: I put my initials DSD.
corroborated by SPO2 Zipagan. Per Chemistry Report No. D-1501-02E of Police Inspector Delfin Q: Now after you gave him that P500.00 marked money, what else happened?
A. Torregoza, the substance, weighing 0.42 gram, which was bought by PO2 Damasco from A: After he received the pre-marked money then he gave me one (1) plastic sachet containing
appellant in consideration of P500.00, was examined and found to be methamphetamine white crystalline substance after receiving said I examined the plastic sachet. HcTEaA
hydrochloride (shabu). ASHaTc Q: After that examination of yours, what did you do?
A: After a brief examination immediately I introduced myself as a police officer and subsequently,
We quote the material portions of the testimony of the poseur buyer that detailed the arrested alias Bernie.
apprehension of appellant, as follows: Q: After you introduced yourself as a police officer, what was the reaction of alias Bernie?
A: He was shocked, sir.
Q: Did he tell you anything?
A: And we briefed and after a short briefing we proceeded to the alleged residence of Bernie and
A: None, sir.
when we reached the place, I particularly saw the subject person in front of the alleged house.
Q: And what did you do after arresting him immediately?
Q: You said we, whom are you referring to as those who went with you to the house of Bernie?
A: The confidential informant.
Q: After reaching the house of Bernie, what happened there? A: After informing his constitutional right I recovered the pre-marked money.
A: I saw the subject person infront of his alleged house talking to another male person.
Q: What was the general condition of that place outside the house of Bernie when you saw him? Q: You mean, you frisked him, Mr. Witness?
A: Dim light, sir.
Q: After you first saw Bernie talking with somebody else, what did you do?
A: The confidential informant greeted alias Bernie and after greeting said person the other male A: Yes, sir.
person he was talking to went farther from us and they conversed.
Q: And after that conversation between your informant and Bernie, what happened? Q: What else did you recover from him aside from the mark money?
A: The confidential informant introduced me as a shabu user and as a customer.
Q: How far were you from Bernie when you were introduced? A: Nothing more. 32
A: Only two (sic) away.
Appellant tries to discredit PO2 Damasco and SPO2 Zipagan by showing an inconsistency in their
testimonies regarding the condition of the scene of the incident. He points out that PO2
Damasco stressed that the place was dark while SPO2 Zipagan said that the area was well-
lighted. 33
After going over the testimonies of the two police operatives, we find no inconsistency in their
testimonies. When asked about the general condition of the place outside the house of
appellant, PO2 Damasco answered "dim light." 34 On the other hand, SPO2 Zipagan said the
place was "a lighted area." 35 PO2 Damasco did not say that the place was dark nor did SPO2
Zipagan say that the place was well-lighted. What is clear is that the place was lighted. Thus,
since both witnesses said that the place was lighted, the inconsistency is more apparent than
real. Even assuming ad arguendo that this can be considered an inconsistency, same is trivial to
adversely affect their credibility.
We now go to appellant's contention that the policemen who arrested him were impelled by
improper motive. He argues that he was merely talking to his brother and a friend when the
policemen suddenly arrived and insisted that he had sold shabu to PO2 Damasco. He claims
that the charge against him was driven by the policemen's desire to get even with him for filing a
case for grave misconduct against the said policemen with the NAPOLCOM. He added that the
trial court should have considered the motive as to why he was charged and that the possibility
of vengeance is not remote.
We find appellant's imputation of ill motive on the police officers to be unsubstantiated by clear
and convincing evidence. We agree in the trial court's ruling when it said:
The evidence does not show that Damasco and Zipagan were moved by ill-will in testifying
against the accused. There was no ill feeling or personal animosity existing between the police
officers and the accused at the time of the latter's arrest. It is true that accused Bernardo F.
Nicolas and his common-law wife Susan Dela Cruz Villasoto filed an administrative case against
PO2 Joel Tapec and PO1 Christopher Semana, both of the Pasig City Police Station for grave
misconduct before the National Police Commission which is docketed as ADM CASE No. 2003-
008 (NCR). But the filing of this case against Tapec and Semana is not enough reason for
Damasco and Zipagan to fabricate or plant evidence against the accused. There was absolutely
no reason at all for them to risk their lives and career to go and plant evidence against the
accused which is in violation of Section 29 of R.A. 9165 that imposes upon any person found
guilty of planting any dangerous drug regardless of quantity and purity, the penalty of death.
These police officers are presumed to know this law and the court believes that these police
officers do not wish to lose their lives by fabricating evidence against innocent individuals.
Accused Bernardo Nicolas, naturally, was expected to deny the accusation against him, for
admission would automatically result in conviction. The testimony of his common-law wife,
Susan Dela Cruz Villasoto is not much of help to the accused'[s] defense. Since she did not
witness what transpired when accused went out of the house in the evening of August 6, 2002.
All that she substantially testified to was that she heard shouting outside of their house and saw
three persons forcibly carrying her husband to the other side of the road. (TSN, July 7, 2003, p.
4). Witness Jose F. Nicolas, to the mind of the court is not a credible witness. He claimed he was
present at the time accused was arrested. He said he fled in order to avoid being handcuffed
and arrested by the police when his brother alias Bernie was arrested. He did not even visit his
brother in jail. He talked to him only on August 25, 2003 to discuss with him his testimony in
court. (TSN, September 15, 2003, p. 13). Being accused's close relative, Jose Nicolas is
expected to testify favorably in behalf of the accused whose testimony, of course, is not
sufficient to overthrow the strength and weight of the testimonies of the police officers Damasco
and Zipagan. 36
We likewise find appellant's declaration that the policemen who arrested him were the very
same ones who robbed his house on 5 February 2002 to be a mere afterthought in order that he
may justify his claim of improper motive on the part of the policemen. How convenient, indeed, it
is for him to make such a declaration. From the time of the alleged break-in in his house on 5
February 2002 until the time he was arrested on 6 August 2002 for selling shabu, he never
lifted a finger to try and find out the identities of the alleged five John Does mentioned in his
complaint with the NAPOLCOM. He could have easily gone to the Station Drug Enforcement Unit
of the Pasig Police Station, but this he did not do. Only when he was arrested during an
entrapment operation did he make such a claim. The timing thereof renders such declaration
very dubious and unreliable. SIEHcA
Appellant's contention that he was framed-up is made even more suspect by the fact that the
statement 37 of his common-law wife that he had gone out of the house for only two minutes
when the policemen arrived and took him away is belied by the statement 38 of his brother that
he had been outside the house for 30 minutes and was talking with his brother and Arnold
Mendez when the policemen arrived.
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. 39 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. 40 In the case at bar, the presumption
remained uncontradicted 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.
Prosecutions involving illegal drugs largely depend on the credibility of the police officers who
conducted the buy-bust operation. 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. Hence, factual findings of the trial courts are accorded respect absent any showing
that certain facts of weights and substance bearing on the elements of the crime have been
overlooked, misapprehended or misapplied. 41 We have no reason to deviate from this rule. We
affirm the factual findings of the trial court as affirmed by the Court of Appeals. The evidence
presented by the prosecution proves to a moral certainty petitioner's guilt of the crime of selling
dangerous drugs.
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 Footnotes
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 1. Penned by Associate Justice (now Presiding Justice) Ruben T. Reyes with Associate Justices
regardless of the quantity and purity involved, or shall act as a broker in any of such Josefina Guevara-Salonga and Fernanda Lampas Peralta, concurring. Rollo, pp. 100-118.
transactions. AaSIET
2. Records, pp. 89-94.
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 0.42 gram of shabu to PO2 Damasco, the trial court, as sustained by the Court of 3. Sale, Trading, Administration, Dispensation, Delivery, Distribution and Transportation of
Appeals, imposed the penalty of life imprisonment and a fine of P500,000.00 in accordance Dangerous Drugs and/or Controlled Precursors and Essential Chemicals.
with Article 63(2) 42 of the Revised Penal Code.
4. Records, p. 1.
Section 98 of Republic Act No. 9165, however, provides for the limited application of the
provisions of the Revised Penal Code on said law. This Section reads: 5. Id. at 16.

SEC. 98. Limited Applicability of the Revised Penal Code. — Notwithstanding any law, rule or 6. TSN, 16 December 2002 and 3 February 2003.
regulation to the contrary, the provisions of the Revised Penal Code (Act No. 3815), as amended,
shall not apply to the provisions of this Act, except in the case of minor offenders. Where the
7. TSN, 3 March 2003.
offender is a minor, the penalty for acts punishable by life imprisonment to death provided
herein shall be reclusion perpetua to death. (Underscoring supplied.)
8. Exhibit E-1.
With the aforesaid section, the provisions of the Revised Penal Code shall no longer apply to the
provisions of the Drugs law except when the offender is a minor. Thus, Article 63(2) of the 9. Exhibit B-1; Records, p. 52.
Revised Penal Code shall not be used in the determination of the penalty to be imposed on the
accused. Since Section 98 of the Drugs Law contains the word "shall," the non-applicability of 10. Exhibit C-1; Records, p. 54.
the Revised Penal Code provisions is mandatory, subject only to the exception in case the
offender is a minor.
11. TSN, 26 May and 29 May 2003.

In the imposition of the proper penalty, the courts, taking into account the circumstances
attendant in the commission of the offense, are given the discretion to impose either life 12. TSN, 7 July 2003.
imprisonment or death, and the fine as provided for by law. In light, however, of the effectivity of
Republic Act No. 9346 entitled, "An Act Prohibiting the Imposition of Death Penalty in the 13. TSN, 15 September 2003.
Philippines," the imposition of the supreme penalty of death has been prohibited. Consequently,
the penalty to be meted on appellant shall only be life imprisonment and fine. Hence, the penalty 14. Should read P500,000.00.
of life imprisonment and a fine of P500,000.00 were properly imposed on the accused-
appellant.
15. Records, p. 93.
WHEREFORE, premises considered, the instant appeal is DISMISSED. The decision of the Court
of Appeals in CA-G.R. CR-H.C. No. 01191 dated 23 August 2005 which affirmedin toto the 16. Id. at 96.
decision of the Regional Trial Court of Pasig City, Branch 164, in Criminal Case No. 11566-D,
finding accused-appellant Bernardo Felizardo Nicolas, a.k.a. Bernie, guilty of violation of Section 17. SEC. 3. How appeal taken. —
5, Article II of Republic Act No. 9165, is hereby AFFIRMED. aCATSI
xxx xxx xxx
SO ORDERED.

Ynares-Santiago, Austria-Martinez and Callejo, Sr., JJ., concur.