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Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No.

176795 June 30, 2008

SPS. CAROLINA and REYNALDO JOSE, petitioners, vs. SPS. LAUREANO and PURITA SUAREZ, respondents. DECISION TINGA, J.: Petitioners filed this case assailing the Decision1 of the Court of Appeals in CA-G.R. CEB SP No. 00397 dated 17 August 2006 which affirmed the Orders2 of the Regional Trial Court (RTC) of Cebu City, Branch 19 restraining Branches 2 and 5 of the Municipal Trial Court in Cities (MTCC) of Cebu City from proceeding with the criminal cases for violation of Batas Pambansa Bilang 22 (B.P. Blg. 22) filed against respondent Purita Suarez. The facts of the case follow. Respondents, spouses Laureano and Purita Suarez, had availed of petitioner Carolina Joses (Carolina) offer to lend money at the daily interest rate of 1% to 2%. However, Carolina and her husband, petitioner Reynaldo Jose, later on increased the interest to 5% per day, which respondents were forced to accept because they allegedly had no other option left. It then became a practice that petitioners would give the loaned money to Purita and the latter would deposit the same in her and her husbands account to cover the maturing postdated checks they had previously issued in payment of their other loans. Purita would then issue checks in favor of petitioners in payment of the amount borrowed from them with the agreed 5% daily interest. On 7 May 2004, respondents filed a Complaint 3 against petitioners seeking the declaration of "nullity of interest of 5% per day, fixing of interest, recovery of interest payments" 4 and the issuance of a writ of preliminary injunction, alleging that the interest rate of 5% a day is iniquitous, contrary to morals, done under vitiated consent and imposed using undue influence by taking improper advantage of their financial distress. They claimed that due to serious liquidity problems, they were forced to rely on borrowings from banks and individual lenders, including petitioners, and that they had to scramble for funds to cover the maturing postdated checks they issued to cover their other borrowings. In their prayer, respondents stated: WHEREFORE, it is prayed that upon the filing of the instant case and in accordance with the 1997 Rules on Civil Procedure[,] a writ of preliminary injunction or at least a temporary restraining order be issued restraining defendant from enforcing the checks as listed in Annex "E" including the filing of criminal cases for violation of B.P. [Blg.] 22 and restraining defendants from entering plaintiffs store and premises to get cash sales and other items against plaintiffs will [sic] under such terms and conditions as this Court may affix.5 Thereafter, at the instance of Carolina, several cases for violation of B.P. Blg. 226 were filed against respondent Purita before the MTCC of Cebu City, Branches 2 and 5. Purita, in turn filed motions to suspend the criminal proceedings on the ground of prejudicial question, on the theory that the checks subject of the B.P. Blg. 22 cases are void for being contra bonos mores or for having been issued in payment of the iniquitous and unconscionable interest imposed by petitioners. The motions were denied.7 Respondents thereafter filed before the RTC a "Motion for Writ of Preliminary Injunction with Temporary Restraining Order"8 seeking to restrain the MTCCs from further proceeding with the B.P. Blg. 22 cases on the ground of prejudicial question. Petitioners opposed the motion. Nevertheless,

the RTC through its 20 December 2004 Order9 issued a writ of preliminary injunction, thereby enjoining the MTCCs from proceeding with the cases against Purita. Petitioners sought reconsideration of the order but their motion was denied due course in the RTCs 3 February 2005 Order.10 Petitioners elevated the case to the Court of Appeals11 and questioned the propriety of the RTCs issuance of a preliminary injunction based on a prejudicial question. The appellate court stated that respondents had sought to annul the checks for being void pursuant to Article 1422 of the Civil Code which provides that "a contract which is the direct result of a previous illegal contract, is also void and inexistent." Accordingly, the appellate court concluded that if the checks subject of the criminal cases were later on declared null and void, then said checks could not be made the bases of criminal prosecutions under B.P. Blg. 22. In other words, the outcome of the determination of the validity of the said checks is determinative of guilt or innocence of Purita in the criminal case.12 The appellate court also observed that respondents resort to an application for preliminary injunction could not be considered as forum shopping since it is the only remedy available to them considering the express proscription of filing a petition for certiorari against interlocutory orders issued in cases under B.P. Blg. 22 which are governed by the rules on summary procedure.13 Before us, petitioners submit that because under Section 6, Rule 111 of the Rules on Criminal Procedure a petition to suspend proceedings on the ground of prejudicial question should be filed in the same criminal action, the RTC has no jurisdiction to issue the writ of preliminary injunction as it is not the court where the B.P. Blg. 22 cases were filed. Moreover, they argue that respondents are guilty of forum shopping because after the denial of their motion to suspend the proceedings before Branches 2 and 5 of the MTCC, they resorted to the filing of a motion for preliminary injunction before the RTC also on the ground of prejudicial question; therefore, they succeeded in getting the relief in one forum (RTC) which they had failed to obtain in the first forum (MTCCs). Likewise, petitioners claim that the Court of Appeals erred in holding that the civil case poses a prejudicial question to the B.P. Blg. 22 cases, thus resulting in the erroneous suspension of the proceedings the latter cases. Finally, petitioners posit that the RTC erred in issuing the preliminary injunction because respondents have no clear and unmistakable right to its issuance.14 Respondents, for their part, state that the possibility of a ruling in the civil case to the effect that the subject checks are contra bonos mores and hence null and void constitutes a prejudicial question in the B.P. Blg. 22 cases. Thus, proceeding with the trial in the criminal cases without awaiting the outcome of the civil case is fraught with mischievous consequences. 15 They cite the case of Medel v. Court of Appeals,16 wherein the Court nullified the interest rate of 5.5% per month for being contra bonos mores under Article 1306 of the Civil Code, and recomputed the interest due at the rate of 1% per month.17 Thus, if their loans are computed at 1% per month, it would mean that the checks subject of the B.P. Blg. 22 cases are not only fully paid but are also in fact overpaid. They also invoke the case of Danao v. Court of Appeals18 wherein the Court allegedly ruled that there is no violation of B.P. Blg. 22 if the dishonored checks have been paid.19 They claim that since the 5% interest per day was not contained in any written agreement, per Article 195620 of the Civil Code, petitioners are bound to return the total interest they collected from respondents. Respondents point out that they incorporated in their complaint an application for preliminary injunction and temporary restraining order to restrain Carolina from enforcing the interest and from filing criminal cases for violation of B.P. Blg. 22. Quoting the RTC, respondents explain: Since there was no proof at that time that plaintiff sustain or are about to sustain damages or prejudice if the acts complained of are not enjoined, the application was not acted upon by the Court. When the attention of the Court was invited by the plaintiffs of the refusal of the MTC, Branches 2 and 5, to suspend the criminal proceedings despite being appraised of the pendency of this case, the Court has to act accordingly.21 Respondents maintain that they are not guilty of forum shopping because after the denial by the MTCCs of their motion to suspend proceedings, their only available remedy was the filing of an application for preliminary injunction in the existing civil case filed earlier than the B.P. Blg. 22 cases. In any case, respondents argue that the rule on forum shopping is not intended to deprive a party to a case of a legitimate remedy. 22 Finally, they claim that the case falls under the exceptions to the rule that the prosecution of criminal cases may not be enjoined by a writ of injunction,

considering that in this case there is a prejudicial question which is sub judice, and that there is persecution rather than prosecution.23 The case hinges on the determination of whether there exists a prejudicial question which necessitates the suspension of the proceedings in the MTCCs. We find that there is none and thus we resolve to grant the petition. A prejudicial question generally comes into play in a situation where a civil action and a criminal action are both pending and there exists in the former an issue which must be preemptively resolved before the latter may proceed, because howsoever the issue raised in the civil action is resolved would be determinative juris et de jure of the guilt or innocence of the accused in the criminal case. The rationale behind the principle of prejudicial question is to avoid two conflicting decisions. It has two essential elements: (i) the civil action involves an issue similar or intimately related to the issue raised in the criminal action; and (ii) the resolution of such issue determines whether or not the criminal action may proceed.24 Now the prejudicial question posed by respondents is simply this: whether the daily interest rate of 5% is void, such that the checks issued by respondents to cover said interest are likewise void for being contra bonos mores, and thus the cases for B.P. Blg. 22 will no longer prosper. The prejudicial question theory advanced by respondents must fail. In the first place, the validity or invalidity of the interest rate is not determinative of the guilt of respondents in the criminal cases. The Court has consistently declared that the cause or reason for the issuance of a check is inconsequential in determining criminal culpability under B.P. Blg. 22. 25 In several instances, we have held that what the law punishes is the issuance of a bouncing check and not the purpose for which it was issued or the terms and conditions relating to its issuance; and that the mere act of issuing a worthless check is malum prohibitum provided the other elements of the offense are properly proved.26 The nature and policy of B.P. Blg. 22 were aptly enunciated by the Court in Meriz v. People,27 when it stated: x x x. [B.P. Blg.] 22 does not appear to concern itself with what might actually be envisioned by the parties, its primordial intention being to instead ensure the stability and commercial value of checks as being virtual substitutes for currency. It is a policy that can easily be eroded if one has yet to determine the reason for which checks are issued, or the terms and conditions for their issuance, before an appropriate application of the legislative enactment can be made. The gravamen of the offense under [B.P. Blg.] 22 is the act of making or issuing a worthless check or a check that is dishonored upon presentment for payment. The act effectively declares the offense to be one of malum prohibitum. The only valid query then is whether the law has been breached, i.e., by the mere act of issuing a bad check, without so much regard as to the criminal intent of the issuer.28 Thus, whether or not the interest rate imposed by petitioners is eventually declared void for being contra bonos mores will not affect the outcome of the B.P. Blg. 22 cases because what will ultimately be penalized is the mere issuance of bouncing checks. In fact, the primordial question posed before the court hearing the B.P. Blg. 22 cases is whether the law has been breached, that is, if a bouncing check has been issued. The issue has in fact been correctly addressed by the MTCCs when respondents motion to suspend the criminal proceedings was denied upon the finding that there exists no prejudicial question which could be the basis for the suspension of the proceedings. The reason for the denial of the motion is that the "cases can very well proceed for the prosecution of the accused in order to determine her criminal propensity as a consequence of the issuance of several checks which subsequently bounced" for "what the law punishes is the issuance and/or drawing of a check and upon presentment for deposit or encashment, it was dishonored due to insufficient funds [or] account closed." 29

There being no prejudicial question, the RTC and, consequently, the Court of Appeals gravely erred when they allowed the suspension of the proceedings in the B.P. Blg. 22 cases. Now, on to other matters. We find that respondents are guilty of forum shopping. There is forum shopping when a party seeks to obtain remedies in an action in one court, which had already been solicited, and in other courts and other proceedings in other tribunals. Forum shopping is the act of one party against another, when an adverse judgment has been rendered in one forum, of seeking another and possibly favorable opinion in another forum other than by appeal or by special civil action of certiorari; or the institution of two or more acts or proceedings grounded on the same cause on the supposition that one or the other court would make a favorable disposition.30 Respondents filed their motions to suspend proceedings in the MTCCs hearing the B.P. Blg. 22 cases but unfortunately, the same were denied. Failing to get the relief they wanted, respondents sought before the RTC, the suspension of the criminal proceedings which was granted. Respondents tried to extricate themselves from the charge of forum shopping by explaining that after the denial of their motions to suspend, their only remedy was the application for preliminary injunction in the civil casea relief which they had already asked for in their complaint and which was also initially not granted to them. Any which way the situation is viewed, respondents acts constituted forum shopping since they sought a possibly favorable opinion from one court after another had issued an order unfavorable to them. The Court notes that three cases, namely, Ras v. Rasul,31 Medel v. CA32 and Danao v. Court of Appeals33finding no application to the instant casewere mentioned by the RTC, the Court of Appeals and by respondents themselves in support of their position. Ras v. Rasul cropped up in the order of the RTC which was quoted with approval by the Court of Appeals. According to the RTC, the ruling in the said case allegedly "can be squarely applied in this case which nullified and set aside the conviction in a criminal case because of a prejudicial question."34 We do not agree. The Ras case involves a petition for nullification of a deed of sale on the ground of forgery. While the civil case was pending, an information for estafa was filed against the respondent in the civil case. The Court ruled that there were prejudicial questions considering that the defense against the charge of forgery in the civil case is based on the very same facts which would be determinative of the guilt or innocence of the respondent in the estafa case. The instant case is different from Ras inasmuch as the determination of whether the 5% daily interest is contra bonos mores and therefore void, or that the total amount loaned from petitioners has been sufficiently paid, will not affect the guilt or innocence of Purita because the material question in the B.P. Blg. 22 cases is whether Purita had issued a bad check, regardless of the purpose or condition of its issuance. Medel v. CA is the case upon which respondents anchor their claim that the interest due on their loans is only 1% per month and thus they have already overpaid their obligation to petitioners. In Medel, the Court declared that the rate of 5.5% interest per month on a P500,000.00 loan is iniquitous, unconscionable and hence contrary to morals, and must equitably be reduced to 12% per annum. While the Medel case made a finding that the stipulated interest rate is excessive and thus may be equitably reduced by the courts, we do not see how a reduction of the interest rate, should there be any, or a subsequent declaration that the amount due has been fully paid, will have an effect on the determination of whether or not Purita had in fact issued bouncing checks. Meanwhile, respondents misunderstood our ruling in Danao v. Court of Appeals, which they claim to have ruled that there could be no violation of B.P. Blg. 22 if the dishonored checks have been paid. In Danao, the accused was convicted by the trial court for having issued two checks which eventually bounced. The Court found that there was no proof of receipt by the accused of any notice of nonpayment of the checks, and thus there was no way of determining when the five-day period prescribed in Section 2 of B.P. Blg. 22 would start and end. Thus, the presumption or prima facie evidence of knowledge of the insufficiency of funds or credit at the time of the issuance of the checks did not arise. While there was a finding that the accused had already paid her obligations prior to receipt of the complainants demand letter,35 there was no declaration from the Court that such payment exonerated accused from liability for having issued bouncing checks. Instead,

accused was acquitted due to insufficiency of evidence, and not because she had paid the amount covered by the dishonored checks36 or that the obligation was deemed paid. WHEREFORE, the petition is GRANTED. The impugned Decision of the Court of Appeals dated 17 August 2006 and its Resolution dated 27 February 2007, in CA-G.R. CEB-SP No. 00397, are SET ASIDE. The preliminary injunction issued by the Regional Trial Court of Cebu City, Branch 19 in its Order dated 20 December 2004 in Civil Case No. CEB-30278 enjoining the proceedings in the criminal cases for violation of B.P. Blg. 22 is LIFTED AND SET ASIDE and the MTCC of Cebu City, Branches 2 and 5 are ORDERED to proceed with dispatch with the arraignment and trial in the B.P. Blg. 22 cases pending before them. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 158312 November 14, 2008

JOHN DY, petitioner, vs. PEOPLE OF THE PHILIPPINES and The HONORABLE COURT OF APPEALS, respondents. DECISION

QUISUMBING, Acting C.J.: This appeal prays for the reversal of the Decision1 dated January 23, 2003 and the Resolution2 dated May 14, 2003 of the Court of Appeals in CA-G.R. CR No. 23802. The appellate court affirmed with modification the Decision3 dated November 17, 1999 of the Regional Trial Court (RTC), Branch 82 of Quezon City, which had convicted petitioner John Dy of two counts of estafa in Criminal Cases Nos. Q-93-46711 and Q-93-46713, and two counts of violation of Batas Pambansa Bilang 224 (B.P. Blg. 22) in Criminal Cases Nos. Q-93-46712 and Q-93-46714. The facts are undisputed: Since 1990, John Dy has been the distributor of W.L. Food Products (W.L. Foods) in Naga City, Bicol, under the business name Dyna Marketing. Dy would pay W.L. Foods in either cash or check upon pick up of stocks of snack foods at the latter's branch or main office in Quezon City. At times, he would entrust the payment to one of his drivers. On June 24, 1992, Dy's driver went to the branch office of W.L. Foods to pick up stocks of snack foods. He introduced himself to the checker, Mary Jane D. Maraca, who upon confirming Dy's credit with the main office, gave him merchandise worth P106,579.60. In return, the driver handed her a blank Far East Bank and Trust Company (FEBTC) Check with Check No. 553602 postdated July 22, 1992. The check was signed by Dy though it did not indicate a specific amount. Yet again, on July 1, 1992, the same driver obtained snack foods from Maraca in the amount of P226,794.36 in exchange for a blank FEBTC Check with Check No. 553615 postdated July 31, 1992. In both instances, the driver was issued an unsigned delivery receipt. The amounts for the purchases were filled in later by Evelyn Ong, accountant of W.L. Foods, based on the value of the goods delivered. When presented for payment, FEBTC dishonored the checks for insufficiency of funds. Raul D. Gonzales, manager of FEBTC-Naga Branch, notified Atty. Rita Linda Jimeno, counsel of W.L. Foods, of the dishonor. Apparently, Dy only had an available balance of P2,000 as of July 22, 1992 and July 31, 1992. Later, Gonzales sent Atty. Jimeno another letter5 advising her that FEBTC Check No. 553602 for P106,579.60 was returned to the drawee bank for the reasons stop payment order and drawn against uncollected deposit (DAUD), and not because it was drawn against insufficient funds as stated in the first letter. Dy's savings deposit account ledger reflected a balance of P160,659.39 as of July 22, 1992. This, however, included a regional clearing check for P55,000 which he deposited on July 20, 1992, and which took five (5) banking days to clear. Hence, the inward check was drawn against the yet uncollected deposit. When William Lim, owner of W.L. Foods, phoned Dy about the matter, the latter explained that he could not pay since he had no funds yet. This prompted the former to send petitioner a demand letter, which the latter ignored. On July 16, 1993, Lim charged Dy with two counts of estafa under Article 315, paragraph 2(d) 6 of the Revised Penal Code in two Informations, which except for the dates and amounts involved, similarly read as follows: That on or about the 24th day of June, 1992, in Quezon City, Philippines, the said accused, did then and there [willfully] and feloniously defraud W.L. PRODUCTS, a corporation duly organized and existing under the laws of the Republic of the Philippines with business address at No. 531 Gen. Luis St., Novaliches, this City, in the following manner, to wit: the said accused, by means of false manifestations and fraudulent representation which he made to complainant to the effect that Far East Bank and Trust Co. check No. 553602 dated July 22, 1992 in the amount of P106,579.60, payable to W.L. Products is a good check and will be honored by the bank on its maturity date, and by means of other deceit of similar import, induced and succeeded in inducing the said complainant to receive and accept the

aforesaid check in payment of snack foods, the said accused knowing fully well that all his manifestations and representations were false and untrue and were made solely for the purpose of obtaining, as in fact he did obtain the aforesaid snack foods valued at P106,579.60 from said complainant as upon presentation of said check to the bank for payment, the same was dishonored and payment thereof refused for the reason stop payment and the said accused, once in possession of the aforesaid snack foods, with intent to defraud, [willfully], unlawfully and feloniously misapplied, misappropriated and converted the same or the value thereof to his own personal use and benefit, to the damage and prejudice of said W.L. Products, herein represented by RODOLFO BORJAL, in the aforementioned amount of P106,579.60, Philippine Currency. Contrary to law.7 On even date, Lim also charged Dy with two counts of violation of B.P. Blg. 22 in two Informations which likewise save for the dates and amounts involved similarly read as follows: That on or about the 24th day of June, 1992, the said accused, did then and there [willfully], unlawfully and feloniously make or draw and issue to W.L. FOOD PRODUCTS to apply on account or for value a Far East Bank and Trust Co. Check no. 553602 dated July 22, 1992 payable to W.L. FOOD PRODUCTS in the amount of P106,579.60 Philippine Currency, said accused knowing fully well that at the time of issue he/she/they did not have sufficient funds in or credit with the drawee bank for payment of such check in full upon its presentment, which check when presented 90 days from the date thereof was subsequently dishonored by the drawee bank for the reason "Payment stopped" but the same would have been dishonored for insufficient funds had not the accused without any valid reason, ordered the bank to stop payment, the said accused despite receipt of notice of such dishonor, failed to pay said W.L. Food Products the amount of said check or to make arrangement for payment in full of the same within five (5) banking days after receiving said notice. CONTRARY TO LAW.8 On November 23, 1994, Dy was arrested in Naga City. On arraignment, he pleaded not guilty to all charges. Thereafter, the cases against him were tried jointly. On November 17, 1999 the RTC convicted Dy on two counts each of estafa and violation of B.P. Blg. 22. The trial court disposed of the case as follows: WHEREFORE, accused JOHN JERRY DY ALDEN (JOHN DY) is hereby found GUILTY beyond reasonable doubt of swindling (ESTAFA) as charged in the Informations in Criminal Case No. 93-46711 and in Criminal Case No. Q-93-46713, respectively. Accordingly, after applying the provisions of the Indeterminate Sentence Law and P.D. No. 818, said accused is hereby sentenced to suffer the indeterminate penalty of ten (10) years and one (1) day to twelve (12) years of prision mayor, as minimum, to twenty (20) years of reclusion temporal, as maximum, in Criminal Case No. Q-93-46711 and of ten (10) years and one (1) day to twelve (12) years of prision mayor, as minimum, to thirty (30) years of reclusion perpetua, as maximum, in Criminal Case No. Q-93-46713. Likewise, said accused is hereby found GUILTY beyond reasonable doubt of Violation of B.P. 22 as charged in the Informations in Criminal Case No. Q-93-46712 and in Criminal Case No. Q-93-46714 and is accordingly sentenced to imprisonment of one (1) year for each of the said offense and to pay a fine in the total amount of P333,373.96, with subsidiary imprisonment in case of insolvency. FINALLY, judgment is hereby rendered in favor of private complainant, W. L. Food Products, herein represented by Rodolfo Borjal, and against herein accused JOHN JERRY DY ALDEN (JOHN DY), ordering the latter to pay to the former the total sum of P333,373.96 plus interest thereon at the rate of 12% per annum from September 28, 1992 until fully paid; and, (2) the costs of this suit.

SO ORDERED.9 Dy brought the case to the Court of Appeals. In the assailed Decision of January 23, 2003, the appellate court affirmed the RTC. It, however, modified the sentence and deleted the payment of interests in this wise: WHEREFORE, in view of the foregoing, the decision appealed from is hereby AFFIRMED with MODIFICATION. In Criminal Case No. Q-93-46711 (for estafa), the accusedappellant JOHN JERRY DY ALDEN (JOHN DY) is hereby sentenced to suffer an indeterminate penalty of imprisonment ranging from six (6) years and one (1) day of prision mayor as minimum to twenty (20) years of reclusion temporal as maximum plus eight (8) years in excess of [P]22,000.00. In Criminal Case No. Q-93-46712 (for violation of BP 22), accused-appellant is sentenced to suffer an imprisonment of one (1) year and to indemnify W.L. Food Products, represented by Rodolfo Borjal, the amount of ONE HUNDRED SIX THOUSAND FIVE HUNDRED SEVENTY NINE PESOS and 60/100 ([P]106,579.60). In Criminal Case No. Q-93-46713 (for estafa), accused-appellant is hereby sentenced to suffer an indeterminate penalty of imprisonment ranging from eight (8) years and one (1) day of prision mayor as minimum to thirty (30) years as maximum. Finally, in Criminal Case No. Q-93-46714 (for violation of BP 22), accused-appellant is sentenced to suffer an imprisonment of one (1) year and to indemnify W.L. Food Products, represented by Rodolfo Borjal, the amount of TWO HUNDRED TWENTY SIX THOUSAND SEVEN HUNDRED NINETY FOUR PESOS AND 36/100 ([P]226,794.36). SO ORDERED.10 Dy moved for reconsideration, but his motion was denied in the Resolution dated May 14, 2003. Hence, this petition which raises the following issues: I. WHETHER OR NOT THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT THE PROSECUTION HAS PROVEN THE GUILT OF ACCUSED BEYOND REASONABLE DOUBT OF ESTAFA ON TWO (2) COUNTS? II. WHETHER OR NOT THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT THE PROSECUTION HAS PROVEN THE GUILT OF ACCUSED BEYOND REASONABLE DOUBT OF VIOLATION OF BP 22 ON TWO (2) COUNTS? III. WHETHER OR NOT THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN AWARDING DAMAGES TO PRIVATE COMPLAINANT, W.L. FOOD PRODUCTS, THE TOTAL SUM OF [P]333,373.96?11 Essentially, the issue is whether John Dy is liable for estafa and for violation of B.P. Blg. 22. First, is petitioner guilty of estafa? Mainly, petitioner contends that the checks were ineffectively issued. He stresses that not only were the checks blank, but also that W.L. Foods' accountant had no authority to fill the amounts. Dy also claims failure of consideration to negate any obligation to W.L. Foods. Ultimately, petitioner denies having deceived Lim inasmuch as only the two checks bounced since he began dealing with him. He maintains that it was his long established business relationship with Lim that enabled him to obtain the goods, and not the checks issued in payment for them. Petitioner renounces personal liability on the checks since he was absent when the goods were delivered.

The Office of the Solicitor General (OSG), for the State, avers that the delivery of the checks by Dy's driver to Maraca, constituted valid issuance. The OSG sustains Ong's prima facie authority to fill the checks based on the value of goods taken. It observes that nothing in the records showed that W.L. Foods' accountant filled up the checks in violation of Dy's instructions or their previous agreement. Finally, the OSG challenges the present petition as an inappropriate remedy to review the factual findings of the trial court. We find that the petition is partly meritorious. Before an accused can be held liable for estafa under Article 315, paragraph 2(d) of the Revised Penal Code, as amended by Republic Act No. 4885,12 the following elements must concur: (1) postdating or issuance of a check in payment of an obligation contracted at the time the check was issued; (2) insufficiency of funds to cover the check; and (3) damage to the payee thereof.13 These elements are present in the instant case. Section 191 of the Negotiable Instruments Law14 defines "issue" as the first delivery of an instrument, complete in form, to a person who takes it as a holder. Significantly, delivery is the final act essential to the negotiability of an instrument. Delivery denotes physical transfer of the instrument by the maker or drawer coupled with an intention to convey title to the payee and recognize him as a holder.15 It means more than handing over to another; it imports such transfer of the instrument to another as to enable the latter to hold it for himself.16 In this case, even if the checks were given to W.L. Foods in blank, this alone did not make its issuance invalid. When the checks were delivered to Lim, through his employee, he became a holder with prima facie authority to fill the blanks. This was, in fact, accomplished by Lim's accountant. The pertinent provisions of Section 14 of the Negotiable Instruments Law are instructive: SEC. 14. Blanks; when may be filled.-Where the instrument is wanting in any material particular, the person in possession thereof has a prima facie authority to complete it by filling up the blanks therein. And a signature on a blank paper delivered by the person making the signature in order that the paper may be converted into a negotiable instrument operates as a prima facie authority to fill it up as such for any amount. . (Emphasis supplied.) Hence, the law merely requires that the instrument be in the possession of a person other than the drawer or maker. From such possession, together with the fact that the instrument is wanting in a material particular, the law presumes agency to fill up the blanks. 17 Because of this, the burden of proving want of authority or that the authority granted was exceeded, is placed on the person questioning such authority.18 Petitioner failed to fulfill this requirement. Next, petitioner claims failure of consideration. Nevertheless, in a letter19 dated November 10, 1992, he expressed willingness to pay W.L. Foods, or to replace the dishonored checks. This was a clear acknowledgment of receipt of the goods, which gave rise to his duty to maintain or deposit sufficient funds to cover the amount of the checks. More significantly, we are not swayed by petitioner's arguments that the single incident of dishonor and his absence when the checks were delivered belie fraud. Indeed damage and deceit are essential elements of the offense and must be established with satisfactory proof to warrant conviction.20 Deceit as an element of estafa is a specie of fraud. It is actual fraud which consists in any misrepresentation or contrivance where a person deludes another, to his hurt. There is deceit when one is misled -- by guile, trickery or by other means -- to believe as true what is really false.21 Prima facie evidence of deceit was established against petitioner with regard to FEBTC Check No. 553615 which was dishonored for insufficiency of funds. The letter22 of petitioner's counsel dated November 10, 1992 shows beyond reasonable doubt that petitioner received notice of the dishonor of the said check for insufficiency of funds. Petitioner, however, failed to deposit the amounts

necessary to cover his check within three banking days from receipt of the notice of dishonor. Hence, as provided for by law,23 the presence of deceit was sufficiently proven. Petitioner failed to overcome the said proof of deceit. The trial court found no pre-existing obligation between the parties. The existence of prior transactions between Lim and Dy alone did not rule out deceit because each transaction was separate, and had a different consideration from the others. Even as petitioner was absent when the goods were delivered, by the principle of agency, delivery of the checks by his driver was deemed as his act as the employer. The evidence shows that as a matter of course, Dy, or his employee, would pay W.L. Foods in either cash or check upon pick up of the stocks of snack foods at the latter's branch or main office. Despite their twoyear standing business relations prior to the issuance of the subject check, W.L Foods employees would not have parted with the stocks were it not for the simultaneous delivery of the check issued by petitioner.24 Aside from the existing business relations between petitioner and W.L. Foods, the primary inducement for the latter to part with its stocks of snack foods was the issuance of the check in payment of the value of the said stocks. In a number of cases,25 the Court has considered good faith as a defense to a charge of estafa by postdating a check. This good faith may be manifested by making arrangements for payment with the creditor and exerting best efforts to make good the value of the checks. In the instant case petitioner presented no proof of good faith. Noticeably absent from the records is sufficient proof of sincere and best efforts on the part of petitioner for the payment of the value of the check that would constitute good faith and negate deceit. With the foregoing circumstances established, we find petitioner guilty of estafa with regard to FEBTC Check No. 553615 for P226,794.36. The same, however, does not hold true with respect to FEBTC Check No. 553602 for P106,579.60. This check was dishonored for the reason that it was drawn against uncollected deposit. Petitioner had P160,659.39 in his savings deposit account ledger as of July 22, 1992. We disagree with the conclusion of the RTC that since the balance included a regional clearing check worth P55,000 deposited on July 20, 1992, which cleared only five (5) days later, then petitioner had inadequate funds in this instance. Since petitioner technically and retroactively had sufficient funds at the time Check No. 553602 was presented for payment then the second element (insufficiency of funds to cover the check) of the crime is absent. Also there is no prima facie evidence of deceit in this instance because the check was not dishonored for lack or insufficiency of funds. Uncollected deposits are not the same as insufficient funds. The prima facie presumption of deceit arises only when a check has been dishonored for lack or insufficiency of funds. Notably, the law speaks of insufficiency of funds but not of uncollected deposits. Jurisprudence teaches that criminal laws are strictly construed against the Government and liberally in favor of the accused. 26 Hence, in the instant case, the law cannot be interpreted or applied in such a way as to expand its provision to encompass the situation of uncollected deposits because it would make the law more onerous on the part of the accused. Clearly, the estafa punished under Article 315, paragraph 2(d) of the Revised Penal Code is committed when a check is dishonored for being drawn against insufficient funds or closed account, and not against uncollected deposit.27 Corollarily, the issuer of the check is not liable for estafa if the remaining balance and the uncollected deposit, which was duly collected, could satisfy the amount of the check when presented for payment. Second, did petitioner violate B.P. Blg. 22? Petitioner argues that the blank checks were not valid orders for the bank to pay the holder of such checks. He reiterates lack of knowledge of the insufficiency of funds and reasons that the checks could not have been issued to apply on account or for value as he did not obtain delivery of the goods. The OSG maintains that the guilt of petitioner has been proven beyond reasonable doubt. It cites pieces of evidence that point to Dy's culpability: Maraca's acknowledgment that the checks were issued to W.L. Foods as consideration for the snacks; Lim's testimony proving that Dy received a copy of the demand letter; the bank manager's confirmation that petitioner had insufficient balance

to cover the checks; and Dy's failure to settle his obligation within five (5) days from dishonor of the checks. Once again, we find the petition to be meritorious in part. The elements of the offense penalized under B.P. Blg. 22 are as follows: (1) the making, drawing and issuance of any check to apply to account or for value; (2) the knowledge of the maker, drawer or issuer that at the time of issue he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment; and (3) subsequent dishonor of the check by the drawee bank for insufficiency of funds or credit or dishonor for the same reason had not the drawer, without any valid cause, ordered the bank to stop payment. 28 The case at bar satisfies all these elements. During the joint pre-trial conference of this case, Dy admitted that he issued the checks, and that the signatures appearing on them were his.29 The facts reveal that the checks were issued in blank because of the uncertainty of the volume of products to be retrieved, the discount that can be availed of, and the deduction for bad orders. Nevertheless, we must stress that what the law punishes is simply the issuance of a bouncing check and not the purpose for which it was issued nor the terms and conditions relating thereto.30 If inquiry into the reason for which the checks are issued, or the terms and conditions of their issuance is required, the public's faith in the stability and commercial value of checks as currency substitutes will certainly erode.31 Moreover, the gravamen of the offense under B.P. Blg. 22 is the act of making or issuing a worthless check or a check that is dishonored upon presentment for payment. The act effectively declares the offense to be one of malum prohibitum. The only valid query, then, is whether the law has been breached, i.e., by the mere act of issuing a bad check, without so much regard as to the criminal intent of the issuer.32 Indeed, non-fulfillment of the obligation is immaterial. Thus, petitioner's defense of failure of consideration must likewise fall. This is especially so since as stated above, Dy has acknowledged receipt of the goods. On the second element, petitioner disputes notice of insufficiency of funds on the basis of the check being issued in blank. He relies on Dingle v. Intermediate Appellate Court33 and Lao v. Court of Appeals34 as his authorities. In both actions, however, the accused were co-signatories, who were neither apprised of the particular transactions on which the blank checks were issued, nor given notice of their dishonor. In the latter case, Lao signed the checks without knowledge of the insufficiency of funds, knowledge she was not expected or obliged to possess under the organizational structure of the corporation.35 Lao was only a minor employee who had nothing to do with the issuance, funding and delivery of checks.36 In contrast, petitioner was the proprietor of Dyna Marketing and the sole signatory of the checks who received notice of their dishonor. Significantly, under Section 237 of B.P. Blg. 22, petitioner was prima facie presumed to know of the inadequacy of his funds with the bank when he did not pay the value of the goods or make arrangements for their payment in full within five (5) banking days upon notice. His letter dated November 10, 1992 to Lim fortified such presumption. Undoubtedly, Dy violated B.P. Blg. 22 for issuing FEBTC Check No. 553615. When said check was dishonored for insufficient funds and stop payment order, petitioner did not pay or make arrangements with the bank for its payment in full within five (5) banking days. Petitioner should be exonerated, however, for issuing FEBTC Check No. 553602, which was dishonored for the reason DAUD or drawn against uncollected deposit. When the check was presented for payment, it was dishonored by the bank because the check deposit made by petitioner, which would make petitioner's bank account balance more than enough to cover the face value of the subject check, had not been collected by the bank. In Tan v. People,38 this Court acquitted the petitioner therein who was indicted under B.P. Blg. 22, upon a check which was dishonored for the reason DAUD, among others. We observed that:

In the second place, even without relying on the credit line, petitioner's bank account covered the check she issued because even though there were some deposits that were still uncollected the deposits became "good" and the bank certified that the check was "funded."39 To be liable under Section 140 of B.P. Blg. 22, the check must be dishonored by the drawee bank for insufficiency of funds or credit or dishonored for the same reason had not the drawer, without any valid cause, ordered the bank to stop payment. In the instant case, even though the check which petitioner deposited on July 20, 1992 became good only five (5) days later, he was considered by the bank to retroactively have had P160,659.39 in his account on July 22, 1992. This was more than enough to cover the check he issued to respondent in the amount of P106,579.60. Under the circumstance obtaining in this case, we find the petitioner had issued the check, with full ability to abide by his commitment41 to pay his purchases. Significantly, like Article 315 of the Revised Penal Code, B.P. Blg. 22 also speaks only of insufficiency of funds and does not treat of uncollected deposits. To repeat, we cannot interpret the law in such a way as to expand its provision to encompass the situation of uncollected deposits because it would make the law more onerous on the part of the accused. Again, criminal statutes are strictly construed against the Government and liberally in favor of the accused.42 As regards petitioner's civil liability, this Court has previously ruled that an accused may be held civilly liable where the facts established by the evidence so warrant. 43 The rationale for this is simple. The criminal and civil liabilities of an accused are separate and distinct from each other. One is meant to punish the offender while the other is intended to repair the damage suffered by the aggrieved party. So, for the purpose of indemnifying the latter, the offense need not be proved beyond reasonable doubt but only by preponderance of evidence.44 We therefore sustain the appellate court's award of damages to W.L. Foods in the total amount of P333,373.96, representing the sum of the checks petitioner issued for goods admittedly delivered to his company. As to the appropriate penalty, petitioner was charged with estafa under Article 315, paragraph 2(d) of the Revised Penal Code, as amended by Presidential Decree No. 81845 (P.D. No. 818). Under Section 146 of P.D. No. 818, if the amount of the fraud exceeds P22,000, the penalty of reclusin temporal is imposed in its maximum period, adding one year for each additional P10,000 but the total penalty shall not exceed thirty (30) years, which shall be termed reclusin perpetua.47 Reclusin perpetua is not the prescribed penalty for the offense, but merely describes the penalty actually imposed on account of the amount of the fraud involved. WHEREFORE, the petition is PARTLY GRANTED. John Dy is hereby ACQUITTED in Criminal Case No. Q-93-46711 for estafa, and Criminal Case No. Q-93-46712 for violation of B.P. Blg. 22, but he is ORDERED to pay W.L. Foods the amount of P106,579.60 for goods delivered to his company. In Criminal Case No. Q-93-46713 for estafa, the Decision of the Court of Appeals is AFFIRMED with MODIFICATION. Petitioner is sentenced to suffer an indeterminate penalty of twelve (12) years of prisin mayor, as minimum, to thirty (30) years of reclusin perpetua, as maximum. In Criminal Case No. Q-93-46714 for violation of B.P. Blg. 22, the Decision of the Court of Appeals is AFFIRMED, and John Dy is hereby sentenced to one (1) year imprisonment and ordered to indemnify W.L. Foods in the amount of P226,794.36. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 175940 February 6, 2008 [Formerly G.R. Nos. 155361-62] THE PEOPLE OF THE PHILIPPINES, appellee, vs. ANSON ONG a.k.a. ALLAN CO, appellant. DECISION TINGA, J.: In dubio pro reo.1 Subject of this automatic review is the Decision2 of the Court of Appeals dated 7 August 2006 which affirmed the Judgment3 of the Regional Trial Court of Pasay City, Branch 110, convicting appellant Anson Ong alias Allan Co of illegal sale and possession of shabu. Two separate Informations were filed before the trial court. In Criminal Case No. 97-0017, appellant was accused of illegal sale of shabu, thus: That on or about the 21st day of [April] 1997, in Pasay City, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and mutually helping one another without authority of law, did then and there willfully, unlawfully and feloniously sell and deliver 989.05 grams of Methamphetamine Hydrochloride (shabu), a regulated drug. Contrary to law.4 In Criminal Case No. 97-0018, appellant was charged with illegal possession of shabu allegedly committed as follows: That on or about the 21st day of April 1997, Pasay City, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, Anson Ong alias "Allan Co," did then and there willfully, unlawfully and feloniously have in his possession, custody and control 988.85 grams of Methamphetamine Hydrochloride (shabu), a regulated drug without the corresponding license. Contrary to law.5 Upon arraignment, appellant pleaded not guilty to both charges. A joint trial of the two cases ensued. The operative facts are narrated by prosecution witnesses who comprised members of the buy-bust team. Sometime in April 1997, Col. Zoila Lachica (Lachica) was tipped off by a female walk-in informant that a group, led by a Chinese national, was engaged in drug trafficking in Pasay City. Upon verification of said information, a meeting took place between Lachica and the informant where the latter was able to arrange a drug deal with appellant in the vicinity of Heritage Hotel.6 Lachica then instructed Investigator Oscar Coballes (Coballes) to prepare the boodle money

consisting of four P500.00 bills and five P100.00 bills placed on top of nine (9) bundles of paper cut to the size of the peso bills. These bills were then submitted to the PNP Crime Laboratory for ultraviolet powder dusting.7 Before lunchtime on 21 April 1997, Lachica organized a team and planned the conduct of a buy-bust operation. The twelve-man team was composed of Lachica, Coballes, Police Supt. Edgar Danao (Danao), P/Inspector Rolando Montes (Montes), PO3 Manuelito Lagradilla (Lagradilla), SPO2 Wilfredo Saballa (Saballa), SPO3 Pardo, SPO2 Pedro Tan, the confidential informant, and other civilian agents. Danao acted as the team leader with Montes assisting him. Saballa was designated as the poseur-buyer and the other members of the team were tasked to secure the area.8 After lunch, the group proceeded to the parking lot of San Juan de Dios Hospital onboard four (4) vehicles, including a motorcycle driven by Lagradilla. At about 3:00 p.m., they reached the parking lot where Danao conducted the final briefing and then deployed his men strategically between the premises of Heritage Hotel and Copacabana Hotel.9 At 4:00 pm, Saballa and the informant went to Heritage Hotel while the other team members strategically posted themselves within the hotel premises.10 Fifteen minutes later, Saballa and the informant left Heritage Hotel and proceeded to the adjacent Copacabana Hotel where he waited at the main entrance of the lobby. Suddenly, a black Honda Civic car with Plate No. ULN 766 arrived and parked along the driveway near the front entrance.11 The informant approached the car while Saballa was left behind holding the black bag containing the boodle money.12 Upon signal by the informant, Saballa came up to the right front door. Saballa showed the contents of the bag to the driver of the car, who was later identified as appellant. He then handed the bag to him.13 Instantaneously, a man approached the car, took the boodle money from appellant and ran away.14 Coballes ran towards the drivers side and poked his gun at appellant. Appellant tried moving the car but Coballes stood in front and blocked it. Appellant was then ordered to open the door. Coballes saw a red bag containing white crystalline substance inside the car and took it into custody. 15Meanwhile, Lagradilla chased the man who took the boodle money around the parking area of Copacabana Hotel.16 While on the run, Lagradilla saw the man throw the money inside a passing white Toyota car driven by a certain Chito Cua (Cua). Instead of pursuing the man, Lagradilla blocked the white Toyota car and arrested Cua.17 Appellant presented an entirely different account of the incident on 21 April 1997. Appellant, who apparently does not know English and Tagalog was assisted by an interpreter, narrated that he is a resident of Chuan Chow, Peoples Republic of China. Upon the suggestion of Lau Chan, appellant decided to go to the Philippines to start a clothing business. In the morning of 21 April 1997, appellant told Lau Chan that he wanted to go to Baclaran. Lau Chan, who himself was planning to go to the casino at Heritage Hotel, asked appellant to meet up with him. Appellant tried calling Lau Chan on this cellphone but the latter was not answering. This prompted appellant to go to Heritage Hotel to look for Lau Chan. At around 4:00 p.m., appellant was walking along Epifanio Delos Santos Avenue towards the direction of the Light Rail Transit when he noticed a commotion in front of the hotel and saw some men carrying guns. Fearing for his safety, appellant decided to walk faster but someone stopped him and poked a gun at him. He was made to board a white car in which he met Cua for the first time. They were then brought to Camp Crame for questioning. It was Cua who translated the questions propounded by the police officers to appellant. He was informed by Cua that he was arrested for failure to show any document regarding his stay in the country. During arraignment however, he learned that he was being charged of possession and sale ofshabu. Finding the testimonies of the prosecution witnesses credible as against the bare and self-serving assertions of appellant, the trial court rendered a decision finding appellant guilty as charged. The dispositive portion of the 11 February 2002 Decision reads: WHEREFORE, in view of the foregoing, the Court finds the herein accused ONG POK PIW a.k.a. ANSON ONG a.k.a. ALLAN CO, GUILTY beyond reasonable doubt of two (2) offenses for Violations of Section 15 and 16, Article III of Republic Act [No.] 6425, as amended in relation to Section 20 and 21 of Article IV of said law and hereby imposes on him the penalty of two (2) RECLUSION PERPETUAS in these cases and a fine in the total amount of P200,000.00 in these cases without subsidiary imprisonment in case of insolvency.

The Methamphetamine Hydrochloride or "shabu" in Criminal Case No. 97-0017 for Violation of Section 15 of Republic Act [No.] 6425, as amended, weighing 989.05 grams and the Methamphetamine Hydrochloride or "shabu" in Criminal Case No. 97-0018 weighing 988.85 grams are hereby declared confiscated in favor of the government. The PNP Crime Laboratory at Camp Crame, Quezon City or its duly authorized representative which has custody and possession of said regulated drugs are hereby directed to immediately cause the delivery and transportation thereof to the Dangerous Drugs Board for proper disposition in accordance with law. The Chief of said office is further directed to inform this Court within 20 days from receipt hereof of the action taken thereon. The period during which the herein accused was under detention during the pendency of these cases shall be credited to him in full provided he agreed to abide by strictly with the rules and regulations of the City Jail. SO ORDERED.18 An appeal was directed to this Court. However, in a Resolution19dated 20 February 2006, the case was transferred to the Court of Appeals in light of our pronouncement in People v. Mateo.20 On 7 August 2006, the Court of Appeals rendered the assailed decision affirming with modification the trial courts ruling, to wit: WHEREFORE, premises considered, the judgment rendered by the Regional Trial Court, Branch 110, Pasay City, in Criminal Case Nos. 97-0017 and 97-0018 is hereby AFFIRMED with modification. As modified, the fine is increased to Five Hundred Thousand Pesos (P500,000.00) for each offense or a total of ONE MILLION PESOS (P1,000,000.00). SO ORDERED.21 In finding appellant guilty, the appellate court strongly relied on the testimonies of the police officers and dismissed the imputed inconsistencies in their statements as being minor. At the core of this appeal is the issue of whether the prosecution was able to prove beyond reasonable doubt the guilt of appellant. Appellant primarily questions the credibility of the prosecution witnesses. He claims that their testimonies were tainted with inconsistencies which even the trial court had noted in its decision. Appellant relies on said observation to support his acquittal based on reasonable doubt. He asserts that his conviction must rest on the strength of the prosecutions own evidence and not on the weakness of the evidence for the defense. The Office of the Solicitor General (OSG), in its Brief,22 insists that all the elements of sale and illegal possession of shabu were duly established by the prosecution. It avers that appellant was caught in flagrante delicto sellingshabu to the poseur-buyer in a legitimate buy-bust operation.23 Moreover, when the poseur-buyer and Coballes opened the door of appellants car, they saw a red bag on the floor containing white crystalline substances which were later tested and found positive for the presence of shabu.24 The OSG contends that the opinion of the trial court with respect to the actuations of the prosecution witnesses on the stand did not affect its judgment of conviction because the trial court lent full faith and credence to the collective testimonies of the police officers who are presumed to have performed their duties in accordance with law.25 For the prosecution of illegal sale of drugs to prosper, the following elements must be proved: (1) the identity of the buyer and seller, the object, and the consideration; and (2) the delivery of the thing sold and the payment therefor. What is material is the proof that the transaction actually took place, coupled with the presentation before the court of the corpus delicti.26 The prosecution seeks to establish the presence of these elements through the testimonies of the police officers involved in the buy-bust operation. The innocence or culpability of appellant thus hinges on the issue of credibility. It is an oft-repeated rule that findings of facts of the trial court, as

affirmed by the appellate court, are conclusive on this Court, absent any evidence that both courts ignored, misconstrued, or misinterpreted cogent facts and circumstances of substance which, if considered, would warrant a modification or reversal of the outcome of the case.27 This case falls under the exception. In determining the credibility of prosecution witnesses regarding the conduct of buy-bust operation, the "objective test," as laid down in People v. Doria,28 is utilized. It has been held that it is the duty of the prosecution to present a complete picture detailing the buy-bust operationfrom the initial contact between the poseur-buyer and the pusher, the offer to purchase, the promise or payment of the consideration, until the consummation of the sale by the delivery of the illegal subject of sale. The manner by which the initial contact was made, the offer to purchase the drug, the payment of the buy-bust money, and the delivery of the illegal drug must be the subject of strict scrutiny by courts to insure that law-abiding citizens are not unlawfully induced to commit an offense.29 In People v. Ong30 and Cabugao v. People31 where the "objective test" was also applied, chasmic deficiencies that similarly marked the prosecution evidence led to the absolution of the accused. In Ong, also involving Chinese nationals as accused, the prosecution evidence on the buy-bust operation was outrageously complete as the confidential informant who had sole knowledge of how the alleged illegal sale of shabu was initiated and how it was carried out was not presented as a witness.32 In Cabugao, the prosecution witnesses could not agree on the reason that prompted them to conduct the buy-bust operation. While the first witness testified that the tip came from their informants, the second witness maintained that no informer was involved in the operation.33 In the case at bar, the evidence for the prosecution failed to prove all the material details of the buy-bust operation. The details of the meeting with the informant, the alleged source of the information on the sale of illegal drugs, appear hazy. Lachica declared that he met the informant for the first time a week before the buy-bust operation: Q Do you recall Mr. Witness when that walk-in informant visited your office? A I cannot recall the exact date but as far as I can remember she visited before the operation was conducted. FISCAL And you are referring to the operation on April 21, 1997? A Yes, sir. COURT How many days prior to the date of operation did that alleged walk-in informant go to your office? A I cannot remember the exact date but I think more or less one week before. More or less 1 week.34 But Coballes testified that the informant reports to their office every now and then, thus: COURT A moment counsel, this informant, was he an employee of your office or an informant working for your office? WITNESS A He is an informant working from our office. COURT When you say informant working in your office, is he receiving salary from your office as a regular employee or he reports or he goes to your office every now and then? A He reports in our office every now and then.35 Coballes related that the informant was present during the briefing held before lunch on 21 April 1997: Q Now when Col. Lachica called you, aside from you and some members of your office, are there any other persons present? A Yes sir, our informant. Q Now how do you know that this person is an informant? A He was introduced to us by our chief, Col. Lachic[a], sir.36 while Lagradilla denied seeing the informant at the meeting: COURT In that briefing, was there a mention of an informant or an asset?

WITNESS A Col. Lachica mentioned of a certain asset. COURT Was that asset present during the briefing at the headquarters? A Asset was not present[,] sir.37 Despite being the designated poseur-buyer, Saballa testified that he had no knowledge of how much shabu he was going to buy. Q How much shabu are you going to purchase? A One (1) kilo, Your Honor. Q How much is one kilo worth? A I am not aware of the price, Your Honor. Q How much is one kilo worth? A I do not know the price they have agreed, Your Honor. Q You are supposed to be the poseur buyer and you do not know how much shabu you are going to buy? A I do not know, Your Honor.38 The actual exchange of the bags containing shabu and the boodle money was not clearly established. The presentation of shabu before the Court could have shed light on the identity of the object of the sale. Unfortunately, the presentation of the shabu purportedly confiscated from appellant was dispensed with at the instance of the defense counsel.39 Coballes testified that he saw Saballa hand the boodle money to appellant in exchange for a wrapped object presumed to be shabu.40 On the contrary, the ultraviolet dusting of the boodle money was conducted but appellant was found negative for fluorescent powder. 41 As between the prosecution witnesses account that it was appellant to whom the boodle money was passed and who was driving the black Honda Civic car during the alleged buy-bust operation and appellants denial that he owned and drove said car, we are inclined to believe appellant. The prosecution failed to present the purported drivers license confiscated from appellant. In fact, they reasoned that it was missing.42 On the other hand, the defense presented a certification from the Land Transportation Office (LTO) and the Philippine Motor Association stating that appellants name does not exist in the LTOs file of licensed drivers and has not been issued a Philippine International Driving Permit43 by the Automobile Association of the Philippines. Further rendering the prosecutions version dubious is the escape of another alleged cohort of appellant. Lagradilla, who was specifically tasked to block or run after any escaping suspect, failed in this regard. During the alleged buy-bust operation, he was positioned in such a manner that a firewall was blocking his vantage point.44Instead of using his motorcycle, he chased the suspect on foot.45 Moreover, it is quite difficult to imagine how one suspect can easily escape notwithstanding the presence of at least twelve (12) police operatives in the vicinity. The witnesses hesitation in answering questions on the stand, as aptly observed by the trial court,46 only compounded their lack of credibility. Lachica, who was the Chief of the Criminal Investigation Division of the NCR-CIDG, cannot seem to recall the vital parts of the buy-bust operation such as the composition of the buy-bust team, the strategic location of the team members, the presence of the name of the other accused, Cua,47 and how much of the boodle money was recovered.48 Moreover, he denied any participation in the conduct of the buy-bust operation: Q You said you supervised the planning of this operation. Did you not say that?

A No Your Honor[,] what I said is that I gave instruction to Col. Danao and we planned out the operation and our procedure, the [over-all] team leader will be the one to provide or make some arrangement[s] pertaining to the police operation.49 However, Coballes insisted that Lachica was present all throughout the operation, thus:

ATTY. ZULUETA And so, in your testimony February 13, 2000[,] you narrated to the Court that Col. Lachica led this operation? A Yes, sir. Q He was with you on the parking lot to brief you on your operation? A Yes. Q And he was with you all throughout the operation? A He was at the Heritage Hotel. Yes. Q Mr. Witness[,] you as police officer[,] do you know the penalty for perjury? A I know that perjury is punishable but I dont know the penalty. Q Did you know that Col. Lachica appeared before this Court and testified in this Hon. Court on July 29, 1999 and he testified that he did not conduct the actual operation but it was Col. Danao? A He was with us and Col. Danao at the Heritage Hotel at the time. Q Will you still maintain that, who is lying now, Col. Lachica or you? A Col. Lachica and the rest stayed at the Heritage Hotel considering that the buy-bust operation was at the Heritage Hotel. Q And yet, Col. Lachica said that as lone Chief of the Criminal Investigation Division he only gave instruction to Col. Danao. The question is[:] do you still maintain despite that [sic] testimony that Col. Lachica was present during the operation? A I do.50 Lachica denied having heard of the name of appellant until he was arrested: Q Will you tell the Court[,] do you know a certain Anson Ong alias Allan Co? A During April? Q Before April? A No, I dont remember that I encountered a name Anson Ong but after the operation conducted by Edgar Danao[,] I read the name of Anson Ong as the arrested person.51 On the other hand, Montes alleged that the name of appellant was mentioned during the briefing held in the office: FISCAL VIBANDOR Q Mr. Witness, on April 21, 1997, you said that you will conduct a buy-bust operation against whom? WITNESS A Against Anson Ong. FISCAL VIBANDOR Q Now, when for the first time did you come to know that you are going to conduct [buybust] operation against Anson Ong? A During our briefing at the office. xxx Q And who were present during that briefing? A All of us except for Lagradilla because he was sent out to get his motor bike, it was only Col. Danao, myself, Coballes, Saballa, Tan and [a] civilian asset.52 According to Coballes, he was instructed by Lachica to prepare the boodle money to be submitted to the PNP Crime Laboratory for powder dusting: Q You want to impress us Mr. Witness, that a week or before the day that you first met the informant you were instructed by Colonel Lachica to prepare buy-bust money? WITNESS A Yes, sir.53 Lachicas million-peso estimate of the drug deal is certainly higher than the P250,000.00 amount stated by Coballes. Ironically, Lachica cannot recall the exact amount or denomination of the boodle money he himself had provided for the operation: Q According to you[,] there will be a drug deal. Do you know how much shabu is involved in this drug deal as arranged by your lady informant? A I cannot recall the exact amount or quantity but the deal is more than one million. x x x54 Q Who provided the buy bust money for this buy-bust operation? A I was the one who provided the buy-bust money, the boodle money. FISCAL Q How much money did you provide? A I cannot remember the exact amount because the money used in that operation is boodle money.

Q A Q A

And to whom did you give this money that will be used in this [buy-bust] operation? I think Agent Coballes. Do you recall in what denomination were these [buy-bust] money given? I cannot remember.55

While the presentation of the boodle money, as a general rule, is not indispensable in the prosecution of a drug case, the material inconsistencies in the testimonies of the prosecution witnesses and the non-presentation of the buy-bust money raise reasonable doubts on the occurrence of a buy-bust operation.56 It is indeed suspicious that vital pieces of evidence, such as the boodle money and the drivers license were lost while in the custody of Coballes who unfortunately passed away during trial. Certainly, the failure to present vital pieces of these evidence cast doubt on the veracity of the buy-bust operation. Another baffling point is the dismissal of the criminal case against Cua, the alleged accomplice of appellant. The prosecution witnesses testified that the boodle money was found in his possession. This fact was confirmed by the presence of fluorescent powder on Cuas hands. The Constitution mandates that an accused shall be presumed innocent until the contrary is proven beyond reasonable doubt. While appellants defense engenders suspicion that he probably perpetrated the crime charged, it is not sufficient for a conviction that the evidence establishe a strong suspicion or probability of guilt. It is the burden of the prosecution to overcome the presumption of innocence by presenting the quantum of evidence required. In the case at bar, the basis of acquittal is reasonable doubt, the evidence for the prosecution not being sufficient to sustain and prove the guilt of appellants with moral certainty. By reasonable doubt is not meant that which of possibility may arise but it is that doubt engendered by an investigation of the whole proof and an inability, after such an investigation, to let the mind rest easy upon the certainty of guilt. An acquittal based on reasonable doubt will prosper even though the appellants' innocence may be doubted, for a criminal conviction rests on the strength of the evidence of the prosecution and not on the weakness of the evidence of the defense.57 Suffice it to say, a slightest doubt should be resolved in favor of the accused.58 With the failure of the prosecution to present a complete picture of the buy-bust operation, as highlighted by the disharmony and incoherence in the testimonies of its witnesses, acquittal becomes ineluctable. WHEREFORE, the Decision of the Court of Appeals in CA-G.R. CR-H.C. No. 02256 is REVERSED and SET ASIDE. Anson Ong a.k.a. "Allan Co" is ACQUITTED of the crime charged against him on the ground of reasonable doubt. His immediate release from prison is ordered unless he is being held for some other valid or lawful cause. 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. Costsde oficio. SO ORDERED. Quisumbing,Chairperson, Carpio, Carpio-Morales, Velasco, Jr., JJ., concur.

Republic of the Philippines SUPREME COURT Manilaa THIRD DIVISION G.R. No. 147065 Present: YNARES-SANTIAGO, J., Chairperson, AUSTRIA-MARTINEZ, CHICO-NAZARIO, NACHURA, and REYES, JJ. Promulgated: March 14, 2008 JUANITO CHAN y LIM, a.k.a. ZHANG ZHENTING, Petitioner, cralaw- versus SECRETARY OF JUSTICE, PABLO C. FORMARAN III and PRESIDENTIAL ANTIORGANIZED CRIME TASK FORCE, represented by PO3 DANILO L. SUMPAY, Respondents. x------------------------------------------------------------------------------------x DECISION NACHURA, J.:

cralawThis petition for review on certiorari under Rule 45 seeks to set aside the Resolution[1] of the Court of Appeals (CA) dated September 21, 2000, which dismissed the petition for certiorari assailing the Resolution of the Secretary of the Department of Justice (DOJ) finding probable cause against the herein petitioner for violation of the Dangerous Drugs Act. The petitioner likewise assails the CA Resolution dated February 9, 2001 which denied his motion for reconsideration. cralawThe case flows from the following antecedents:

On April 23, 1999, the Chief of the Presidential Anti-Organized Crime Task Force (PAOCTF), then Police Director Panfilo M. Lacson, referred to the State Prosecutor for appropriate action the evidence collected by the task force during a buy-bust operation against petitioner Juanito Chan, a Chinese citizen who was a resident of Binondo, Manila. The evidence consisted of

EXH A One (1) self-sealing transparent plastic bag containing white crystalline substance/granules suspected to be Methamphetamine Hydrochloride SHABU, weighing approximately one (1) kilogram with markings DLS 04/23/99 placed inside a box of HENNESSY V.S.O.P. COGNAC. EXH B Buy-bust money amounting to six thousand pesos (P6,000.00) in twelve (12) pieces of five hundred peso bill denomination placed at the top of each of the twelve (12) bundles of boodle money (pieces of paper cut in the same size and shape of a genuine money) placed inside a yellow paper bag with markings HAPPY BIRTHDAY. EXH C one (1) green Hyundai van with plate number ULK 815 used in transporting the confiscated SHABU.[2]

The PAOCTF also submitted the following documents to the State Prosecutor: (1) the Joint Affidavit of Arrest executed by PO3 Danilo L. Sumpay, PO3 Rolly S. Ibaez and SPO1 Ronald C. Parreo, the police officers who conducted the buy-bust operation; (2) booking sheet and arrest report; (3) receipt for property seized; (4) request for laboratory examination; (5) result of laboratory examination; (6) request for medical/physical examination; (7) result of medical/physical examination; (8) request for drug dependency test; (9) receipt for buy-bust money; and (10) photocopy of buy-bust money.

In their Joint Affidavit of Arrest,[3] PO3 Danilo L. Sumpay, PO3 Rolly S. Ibaez and SPO1 Ronald C. Parreo narrated that, on April 22, 1999, at about 10:30 p.m., their Confidential Informant (CI) reported to them that a certain Juanito Chan was engaged in the sale of methamphetamine hydrochloride or shabu in different parts of Metro Manila, and that Chan offered him a handsome

commission if he would find a buyer of shabu. According to them, the CI received a phone call from Chan later that evening, and the two made a deal for the sale of one kilogram of shabu worth P600,000.00 at the parking space in front of Fuji Mart Inc., along Timog Avenue, Quezon City between 5:30 and 7:30 a.m. the following day. They said that based on this information, a buy-bust operation was organized by the PAOCTF. Hence, on April 23, 1999, at 6:00 a.m., they apprehended Chan after he turned over to the poseur-buyer a small box containing one self-sealing transparent plastic bag of white crystalline substance in exchange for the 12 bundles of boodle money (cut bond paper with a marked P500.00 peso bill on top) which he received from the poseur-buyer.

Petitioner requested a preliminary investigation and waived his rights under Article 125 of the Revised Penal Code.[4]

Thereafter, Chan submitted his Counter-Affidavit[5] denying the charges against him. He claimed that he was the victim of a frame-up and extortion by the police officers who allegedly demanded P2 million in exchange for his release. He contended that his warrantless arrest was illegal because he was not committing a crime at that time. He insisted that the supposed sale of drugs never took place and that the alleged 1 kilo of shabu was just planted by the arresting officers.

After preliminary investigation, State Prosecutor Pablo C. Formaran III issued a Resolution[6] dated June 17, 1999 recommending the filing of an Information against the petitioner. Prosecutor Formaran did not give credence to petitioners unsubstantiated claim of frame up and extortion. He said that the defenses and accusation of petitioner were matters of defense that should be threshed out in court. He further averred that In the face of the laboratory findings that the white crystalline substance weighing 935.80 grams, which appears to have been taken from the possession of the respondent is positive for methylamphetamine hydrochloride, a regulated drug, and considering the existence of the buy-bust money, the undersigned investigating prosecutor finds sufficient ground to engender a well founded belief that [the] crime charged has been committed and that the herein respondent is probably guilty thereof and should, therefore, be held for trial. WHEREFORE, it is recommended that an Information for violation of Section 15, Article III of Republic Act No. 6425, as amended by Republic Act No. 7659, be filed in court against respondent Juanito Chan y Lim alias Zhang Zhenting.[7]

Senior State Prosecutor Archimedes V. Manabat recommended the approval of this Resolution. It was then approved by Assistant Chief State Prosecutor Leonardo Guiyab, Jr., in behalf of the Chief State Prosecutor.

On June 30, 1999, State Prosecutor Formaran filed before the Regional Trial Court (RTC) of Quezon City an Information, alleging That on or about April 23, 1999, in Timog Avenue, Quezon City and within the jurisdiction of this Honorable Court, the abovenamed accused, with deliberate intent and without authority of law, did then and there, willfully, unlawfully and feloniously sell and deliver to a poseur-buyer nine hundred thirty-five point eight (935.80) grams, more or less, of methylamphetamine hydrochloride (shabu), a regulated drug. CONTRARY TO LAW.[8]

The case was docketed as Criminal Case No. Q-99-84778, which was raffled to RTC Quezon City, Branch 224. On July 8, 1999, petitioner filed a petition for review with the Secretary of the Department of Justice (Justice Secretary). In a Resolution dated April 25, 2000, then Secretary of Justice Artemio G. Tuquero denied the petition for review on the ground that there was no reversible error in the investigating prosecutors finding of probable cause. Petitioner moved for the reconsideration of the said ruling, but this was likewise denied in the Resolution dated July 19, 2000. Petitioner filed a Petition for Certiorari with Very Urgent Prayer for Writ of Preliminary Injunction and/or Temporary Restraining Order with the CA, assailing the Resolutions of the Justice Secretary. The petition prayed, among others, that the appellate court nullify said Resolutions and direct the withdrawal of the Information. On September 21, 2000, the CA dismissed the petition. Noting that the RTC had already assumed jurisdiction over the case, it dismissed the case in accordance with the doctrine laid down in Crespo v. Mogul[9] that once a complaint or information is filed in court, any disposition of the case rests on the sound discretion of the court. The CA further held that certiorari will not lie since petitioner may still avail of a motion to quash or dismiss the Information with the trial court.[10] On February 9, 2001, the CA denied petitioners motion for reconsideration. [11] Thus, petitioner filed the instant petition for review on certiorari, ascribing the following errors to the CA:

I THE HONORABLE COURT OF APPEALS ACTED IN A MANNER NOT IN ACCORD WITH THE DECISION OF THE SUPREME COURT WHEN IT DISMISSED THE PETITION FOR CERTIORARI ON THE BASIS OF THIS COURTS RULING IN THE CASE OF CRESPO VS. MOGUL (151 SCRA 462). II. THE HONORABLE COURT OF APPEALS ACTED IN A MANNER NOT IN ACCORD WITH THE CONSTITUTION, LAW AND THE APPLICABLE DECISIONS OF THE SUPREME COURT

IN NOT NULLIFYING THE PRELIMINARY INVESTIGATION CONDUCTED BY THE RESPONDENT STATE PROSECUTOR IN I.S. NO. 99-587, AS WELL AS THE RESOLUTION/INFORMATION ISSUED PURSUANT THERETO FOR BEING IN VIOLATION OF THE CONSTITUTIONAL RIGHT OF PETITIONER TO DUE PROCESS OF LAW. III. THE HONORABLE COURT OF APPEALS ERRED AS A MATTER OF LAW AND DEPARTED FROM THE ACCEPTED AND USUAL COURSE OF JUDICIAL PROCEEDINGS IN NOT NULLIFYING THE RESOLUTIONS OF THE SECRETARY OF JUSTICE FOR HAVING BEEN RENDERED WITH GRAVE ABUSE OF DISCRETION.[12]

Petitioner argues that the CA erred in dismissing the petition for certiorari based on the Courts ruling in Crespo v. Mogul.[13] He argues that Crespo is not applicable to the present case because it involves a different factual setting. He points out that in said case, it was the provincial fiscal who filed a motion to dismiss the criminal case pending before the trial court on the basis of the resolution of the Undersecretary of Justice, whereas here, the issue involves the validity of the preliminary investigation. He avers that Crespo was superseded by Allado v. Diokno,[14] which recognized the courts authority to nullify findings of probable cause by the prosecutor or investigating judge when due process is violated.[15] Petitioner contends that the preliminary investigation was void for being violative of his right to due process, which includes the right to be heard by an impartial authority. He contends that State Prosecutor Formaran could not have been objective and impartial in conducting the preliminary investigation because the latter was a member of the PAOCTF, the agency that initiated the case against him.[16] cralawPetitioner asserts that the petition for certiorari was his speedy and adequate remedy from the ruling of the Justice Secretary, and not a motion to quash or dismiss the Information, as suggested by the CA. He insists that the Justice Secretary committed grave abuse of discretion when he affirmed the State Prosecutors finding of probable cause, which was based solely on the Joint Affidavit of Arrest. He claims that the State Prosecutor ignored certain facts and circumstances which indicate that there was actually no buy-bust operation but an extortion attempt instead, and capriciously relied on the presumption of regularity in the performance of the police officers duty. [17] He posits that such presumption cannot prevail over the constitutional presumption of innocence of an accused. Citing People v. Sapal,[18] petitioner also submits that the police authorities undue delay in delivering him to the proper authorities effectively destroys the presumption of regularity in the performance of their duties. Petitioner is referring to the 10-hour delay in turning him over to the PNP Crime Laboratory from the time of his arrest. He alleges that this undue delay confirms the attempted extortion against him. cralawRespondents, through the Office of the Solicitor General, maintain that Allado is an exception to the general rule which may be invoked only if similar circumstances are shown to exist, and such circumstances do not exist in this case. They aver that petitioner cannot feign denial of due process considering that he actively participated in the preliminary investigation and was given the

opportunity to present his side. Respondents dispel petitioners doubt as to the partiality of State Prosecutor Formaran by pointing out that his findings were reviewed by his superiors, even by the respondent Secretary of Justice.

Respondents contend that petitioners claim that he is the victim of frame-up in not worthy of credence for being unsubstantiated. Likewise, petitioner cannot rely on the failure to deliver him on time to the proper authorities because there was actually no need to do so since the PAOCTF was already a convergence of various law enforcement units, namely, the police, the military and the National Bureau of Investigation. We deny the petition. Contrary to petitioners view, Crespo subsists and was not superseded by Allado. Allado, which was punctuated by inordinate eagerness in the gathering of evidence and in the preliminary investigation, serves as an exception and may not be invoked unless similar circumstances are clearly shown to exist.[19] No such circumstances were established in the present case. In Crespo, the Court laid down the rule that once an Information is filed in court, any disposition of the case rests on the sound discretion of the court. In subsequent cases, [20] the Court clarified that Crespo does not bar the Justice Secretary from reviewing the findings of the investigating prosecutor in the exercise of his power of control over his subordinates. The Justice Secretary is merely advised, as far as practicable, to refrain from entertaining a petition for review of the prosecutors finding when the Information is already filed in court. In other words, the power or authority of the Justice Secretary to review the prosecutors findings subsists even after the Information is filed in court. The court, however, is not bound by the Resolution of the Justice Secretary, but must evaluate it before proceeding with the trial. While the ruling of the Justice Secretary is persuasive, it is not binding on courts.[21] Albeit the findings of the Justice Secretary are not absolute and are subject to judicial review, this Court generally adheres to the policy of non-interference in the conduct of preliminary investigations, particularly when the said findings are well-supported by the facts as established by the evidence on record.[22] Absent any showing of arbitrariness on the part of the prosecutor or any other officer authorized to conduct preliminary investigation, courts as a rule must defer to said officers finding and determination of probable cause, since the determination of the existence of probable cause is the function of the prosecutor.[23] Simply stated, findings of the Secretary of Justice are not subject to review, unless made with grave abuse of discretion. [24] As held in one case:

The general rule is that the courts do not interfere with the discretion of the public prosecutor in determining the specificity and adequacy of the averments in a criminal complaint. The determination of probable cause for the purpose of filing an information in court is an executive function which pertains at the first instance to the public prosecutor and then to the Secretary of Justice. The duty of the Court in appropriate cases is merely to determine whether the executive determination was done without or in excess of jurisdiction or with grave abuse of discretion. Resolutions of the Secretary of Justice are not subject to review unless made with grave abuse.[25]

Thus, the findings of the Justice Secretary may be reviewed through a petition for certiorari under Rule 65 based on the allegation that he acted with grave abuse of discretion.[26] This remedy is available to the aggrieved party. In dismissing the petition for certiorari, the CA primarily anchored its decision on Crespo, ratiocinating that it is without authority to restrain the lower court from proceeding with the case since the latter had already assumed jurisdiction. Such concern is clearly of no moment. In the petition for certiorari, the CA is not being asked to cause the dismissal of the case in the trial court, but only to resolve the issue of whether the Justice Secretary acted with grave abuse of discretion in affirming the finding of probable cause by the investigating prosecutor. Should it determine that the Justice Secretary acted with grave abuse of discretion, it could nullify his resolution and direct the State Prosecutor to withdraw the Information by filing the appropriate motion with the trial court. But the rule stands the decision whether to dismiss the case or not rests on the sound discretion of the trial court where the Information was filed. The CA, likewise, opined that the filing of the petition for certiorari was improper since petitioner still had an available remedy, that is, to file a motion to dismiss or to quash the Information with the trial court. We do not agree. A petition for certiorari may still be availed of even if there is an available remedy, when such remedy does not appear to be plain, speedy, and adequate in the ordinary course of law. The following excerpt from Land Bank of the Philippines v. Court of Appeals[27] is instructive The determination as to what exactly constitutes a plain, speedy and adequate remedy rests on judicial discretion and depends on the particular circumstances of each case. There are many authorities that subscribe to the view that it is the inadequacy, and not the mere absence, of all other legal remedies, and the danger of a failure of justice without it, that must usually determine the propriety of the writ. An adequate remedy is a remedy which is equally beneficial, speedy and sufficient, not merely a remedy which at some time in the future will bring about a revival of the judgment of the lower court complained of in the certiorari proceeding, but a remedy which would promptly relieve the petitioner from the injurious effects of that judgment and the acts of the inferior court, tribunal, board or officer.[28] However, instead of remanding the case to the CA, we deem it more practical to decide the substantive issue raised in this petition so as not to further delay the disposition of this case. On

this issue, we hold that the Secretary of Justice did not commit grave abuse of discretion in affirming the finding of probable cause by the State Prosecutor. Probable cause has been defined as the existence of such facts and circumstances as would lead a person of ordinary caution and prudence to entertain an honest and strong suspicion that the person charged is guilty of the crime subject of the investigation. Being based merely on opinion and reasonable belief, it does not import absolute certainty.[29] Probable cause need not be based on clear and convincing evidence of guilt, as the investigating officer acts upon reasonable belief. Probable cause implies probability of guilt and requires more than bare suspicion but less than evidence which would justify a conviction.[30] In the case at bench, petitioner is charged with illegal sale of a prohibited drug. A successful prosecution of this offense requires the concurrence of the following elements: (1) the identity of the buyer and the seller, the object of the sale, and the consideration; and (2) the delivery of the thing sold and the payment therefor. [31] To our mind, the documentary and object evidence submitted to the State Prosecutor, particularly the Joint Affidavit of Arrest, the 935.80 grams of shabu, and the buy-bust money sufficiently establish the existence of probable cause against petitioner for the crime charged. After all, a finding of probable cause needs only to rest on evidence showing that, more likely than not, a crime has been committed by the suspect. [32] Unless there is a clear and convincing evidence that the members of the buy-bust team were impelled by any improper motive, or were not properly performing their duties, their testimonies on the operation deserve full faith and credit.[33] The allegation that the State Prosecutor was not impartial in conducting the preliminary investigation is merely speculative a bare allegation unworthy of credence. Such accusation is worthless in light of our finding that there is, indeed, probable cause against petitioner. Moreover, bias and partiality can never be presumed. [34] The mere fact that State Prosecutor Formaran was also a member of the PAOCTF is insignificant. The now defunct PAOCTF was created to investigate and prosecute all crime syndicates. It was a convergence and collaboration of the different agencies of the government, including the Philippine National Police and the DOJ. [35] Unsupported statements of partiality will not suffice in the absence of contrary evidence that will overcome the presumption that the State Prosecutor regularly performed his duty. Petitioners allegation of frame-up and extortion is evidentiary in nature, and are matters for his defense. Evidentiary matters must be presented and heard during the trial. [36] They are best left for the trial court to evaluate and resolve after a full-blown trial on the merits. [37] In any case, it is well to note the Courts stance on such defense: This Court is, of course, aware that in some cases, law enforcers resort to the practice of planting evidence in order to, inter alia, harass. But the defense of frame-up in drug cases requires strong and convincing evidence because of the presumption that the police officers performed their duties regularly and that they acted within the bounds of their authority. Besides, the defense of denial or frame-up, like alibi, is viewed with disfavor for it can just

as easily be concocted and is a common and standard defense ploy in most prosecutions for violation of the Dangerous Drugs Act.[38] As a final note, on September 4, 2001, while the case was pending before this Court, petitioner was arraigned, and pleaded not guilty. Thereafter, petitioner filed a motion for bail which was granted by Judge Emilio L. Leachon, Jr., Presiding Judge of RTC Quezon City, Branch 224. The bail bond was fixed at P100,000.00. On March 7, 2003, the RTC ordered the release of petitioner upon payment of such amount.[39] We recognize the courts authority to grant bail in cases involving capital offenses after a determination that evidence of guilt is not strong. But we urge them to be circumspect in exercising such discretion. In this case, it is glaring that the bail bond fixed by the RTC was exceedingly low considering that the crime charged is illegal sale of prohibited drug punishable by reclusion perpetua to death and a fine ranging from P500,000.00 to P10 milllion, with the risk of flight extremely high, the petitioner being a Chinese citizen. However, upon verification from the Office of the Court Administrator, we found out that Judge Leachon, Jr. had already retired on October 13, 2003; hence, he may no longer be called to account disciplinarily for this apparent transgression. We are, thus, compelled to re-issue a reminder to judges to comply strictly with our guidelines on the grant of bail in capital offenses, to be conscientious in performing their judicial functions and, at all times, to be faithful to the law and the rules. They should maintain professional competence, and abide by the highest standard of integrity and moral uprightness, to ensure the peoples confidence in the judicial system. In the exercise of its authority to supervise judges and court personnel, this Court will not hesitate to impose disciplinary sanctions on judges who fail to measure up to these exacting standards of work ethics and morality. WHEREFORE, premises considered, the petition is DENIED. Subject to our disquisition on the propriety of certiorari under Rule 65 as an appropriate remedy, the Resolutions of the Court of Appeals, dated September 21, 2000 and February 9, 2001, are AFFIRMED. SO ORDERED.

THIRD DIVISION [G.R. No. 179036, July 28, 2008] PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. CARLITO MATEO Y PATAWID

ACCUSED-APPELLANT. DECISION CHICO-NAZARIO, J.: Before Us is the Decision[1] of the Court of Appeals in CA-G.R. H.C. CR No. 00709 dated 31 October 2006 which affirmed the Decision of the Regional Trial Court (RTC) of Makati City, Branch 64, in Criminal Case Nos. 03-2337 and 03-2338, finding accused-appellant Carlito Mateo y Patawid guilty of violation of Sections 5 and 11, Article II of Republic Act No. 9165, otherwise known as Comprehensive Dangerous Drugs Act of 2002. On 30 June 2003, two informations were filed against accused-appellant before the RTC of Makati for violating the provisions of Republic Act No. 9165. In Criminal Case No. 03-2337, accused-appellant violated Section 5,[2] Article II in the following manner: That on or about the 28th day of June 2003, in the City of Makati, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, not being lawfully authorized by law, did then and there willfully, unlawfully and feloniously sell, give away, distribute and deliver to another zero point ten (0.10) grams, of Methylamphetamine Hydrochloride which is a dangerous drug, in exchange of the amount of Two Hundred Pesos (P200.00).[3] On the other hand, in Criminal Case No. 03-2338, accused-appellant Patawid was additionally charged with violation of Section 11, Article II of the same law,[4] committed as follows: That on or about the 28th day of June 2003, in the City of Makati, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, not being lawfully authorized to possess or otherwise use any dangerous drug and without the corresponding license or prescription, did then and there willfully, unlawfully and feloniously have in his possession, direct custody and control a total of zero point two (0.2) gram of Methylamphetamine Hydrochloride which is a dangerous drug.[5] Accused-appellant pleaded not guilty to both charges when arraigned on 31 July 2003.[6] During the pre-trial, the prosecution and the defense stipulated on the following: (1) the issuance of Police Investigation Report after the accused was arrested; (2) the qualification of Forensic Chemist Engr. Richard Allan Mangalip; and (3) the Physical Science Report prepared by the Forensic Chemist. By virtue of said stipulations, the testimony of the Forensic Chemist was dispensed with. Thereafter, the cases were consolidated and tried jointly.

During the trial, the prosecution presented the following witnesses: (a) Makati Anti-Drug Abuse Council (MADAC) Operative Geraldo Farias, a member of the Philippine National Police (PNP) and the designated poseur-buyer; (b) Police Officer 2 (PO2) Rodrigo Igno; and (c) MADAC Operative Oscar Gutierrez, as back-up or members of the operation team. The The defense, on the other hand, presented of the lone case testimony is of the as accused. follows:

prosecution's

version

the

On 28 June 2003, Captain Rodolfo Doromal of the Office of MADAC received a report from a confidential informant that an alias Ato was selling illegal drugs along Kalayaan Avenue, Makati City. Acting on said information, they immediately coordinated with the Drug Enforcement Unit (DEU). Thereupon, PO2 Rodrigo Igno and PO2 Barrameda were dispatched to the MADAC Cluster 4 Office where a briefing was immediately held. MADAC Operative Geraldo Farias was designated as poseur-buyer with MADAC Operative Oscar Gutierrez, PO2 Igno and PO2 Barrameda as back-up team. Two P100.00 bills were used as buy-bust money. After the briefing, the team, together with the confidential informant, proceeded to Barangay Pitogo, Makati City, for the execution of the buybust operation. At around 8:45 in the evening of 28 June 2003, accused-appellant was found standing along Kalayaan Avenue, Makati City. Upon seeing the accused, the informant and MADAC Operative Farias approached him, while the back-up team followed from a distance and positioned

themselves. The informant told accused-appellant that MADAC Operative Farias was interested in buying shabu. Accused-appellant then asked the informant if the latter was okay, [7] and he replied in the affirmative. MADAC Operative Farias handed over the buy-bust money to the accused-appellant. Thereafter, the latter took out from his pocket a plastic sachet and handed the same to MADAC Operative Farias. After taking the plastic sachet believed to contain shabu, MADAC Operative Farias gave the pre-arranged signal by removing his face towel, which was placed on his right shoulder, to signify that the sale was consummated. Upon seeing the pre-arranged signal, MADAC Operative Gutierrez, PO2 Igno and PO2 Barrameda came over and asked the accused to empty his pocket. They introduced themselves as MADAC Operatives and Police Officers, and thereafter arrested him. MADAC Operative Gutierrez recovered from the accused the buy-bust money and one black coin purse containing 7 plastic sachets of suspected shabu.[8] PO2 Barrameda informed the accused of the latter's constitutional rights, [9] while PO2 Igno asked for the full name of the accused.[10] MADAC Operative Farias marked the pieces of evidence recovered from the accused by placing therein the initials of the accused.[11] The Custodian Officer prepared the list of items taken from the accused and turned over the list to the DEU.[12] Thereafter, the accused was taken to the DEU and afterwards to the PNP Crime Laboratory for drug testing. The dangerous drugs were brought to the PNP Crime Laboratory for examination, [13] which later confirmed the presence of Methylamphetamine hydrochloride.[14] Expectedly, accused-appellant presented a disparate narration of the incident:

Accused-appellant claimed that at around 9:00 o'clock in the evening of 28 June 2003, while he was walking along Kalayaan Avenue, Makati City, on his way to his live-in partner's house in Bohol Street, Barangay Pitogo, two men suddenly approached and grabbed him claiming they wanted to ask him something. They made him board a blue Toyota Revo and brought him to the barangay hall. The two men asked him if he knew a certain "Eboy" and to point him out to them. The accused told them that he could not point out Eboy because he did not know him and that he was not living in that place. Besides, he said he was in that place because he fetched his live-in partner. When he did not heed their demands, he was brought to a room where they took his picture. He saw plastic sachets of shabu inside the room.[15] After trial, the court a quo found accused-appellant guilty as charged. The dispositive portion of the trial court's decision reads: WHEREFORE, in view of the foregoing, judgment is rendered against the accused CARLITO MATEO y PATAWID, ALIAS "ATO" as follows: 1. Finding him, GUILTY beyond reasonable doubt of the crime of Violation of Section 5 of R.A. No. 9165 (Crim. Case No. 03-2337) and sentencing him to suffer the penalty of life imprisonment and to pay a fine of P500,000.00;

2. Finding him, GUILTY beyond reasonable doubt of the crime of Violation of Section II of R.A.
No. 9165 (Crim. Case No. 03-2338) and considering that the combined weight of the subject shabu is only 0.2 gram sentencing him to suffer the penalty of twelve (12) years and one (1) day of imprisonment, and a fine of P300,000.00 The Branch Clerk of Court is directed to transmit to the Philippines Drug Enforcement Agency (PDEA) the one plastic sachet of shabu (0.10) gram subject matter of Criminal Case No. 03-2337 and the seven plastic sachets of shabu with combined weight of 0.20 gram subject of Criminal Case No. 03-2338 for said agency's appropriate disposition.[16] On 31 October 2006, the Court of Appeals affirmed the findings and conclusion of the RTC, the fallo of which reads: WHEREFORE, premises considered, the appeal is DENIED for lack of merit. The Decision dated February 10, 2005 rendered by the Regional Trial Court of Makati City, Branch 64, in Criminal Cases Nos. 03-2337 and 03-2338 finding the accused appellant guilty beyond reasonable doubt of violating Sections 5 and 11 of Article II of Republic Act No. 9165 is affirmed in toto.[17] Accused-appellant filed a Notice of Appeal on 20 November 2006. The Court of Appeals forwarded the records of the case to us for further review. In Our Resolution[18] dated 8 October 2007, the parties were notified that they may file their respective supplemental briefs, if they so desired, within 30 days from notice. Both accused-

appellant[19] and the People[20] opted not to file supplemental briefs on the ground that they had exhaustively argued all the relevant issues in their respective briefs and that the filing thereof would only entail a repetition of the arguments already discussed. Accused-appellant raised the following errors[21]: I THE COURT A QUO GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT OF THE CRIMES CHARGED DESPITE THE PROSECUTION'S FAILURE TO PROVE HIS GUILT BEYOND REASONABLE DOUBT; and II THE COURT A QUO GRAVELY ERRED IN GIVING WEIGHT AND CREDENCE TO THE INCONSISTENT AND INCREDIBLE TESTIMONIES OF THE PROSECTION WITNESSES. Accused-appellant contends that the trial court erred in convicting him as his guilt was not proved beyond reasonable doubt. Further, he alleges that the police officers dispensed with the surveillance and immediately conducted the buy-bust operation. He also maintains that there was no basis for the trial court's conviction due to the apparent inconsistencies in the testimonies of the prosecution witnesses. For the successful prosecution of offenses involving the illegal sale of drugs under Section 5, Article II of Republic Act No. 9165, the following elements must be proven: (1) the identities of the buyer and seller, object, and consideration; and (2) the delivery of the thing sold and the payment therefor.[22] 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.[23] In the present case, all the elements of the crime have been sufficiently established. Prosecution witnesses MADAC Operative Farias, PO2 Igno and MADAC Operative Gutierrez consistently testified that a buy-bust operation did indeed take place. The shabu subject of the sale was presented and duly identified in open court. MADAC Operative Farias, being the poseur-buyer, positively identified accused-appellant Mateo as the person who sold the sachet containing a white crystalline substance,[24] which was later confirmed by a chemical analysis to be shabu.[25] The white crystalline substance was placed in a sachet by MADAC Operative Farias who marked the same with the initial "CMP" representing the name of accused Carlito Mateo y Patawid. Incidentally, MADAC Operative Farias also identified the six (6) sachets of shabu which were placed in the other six sachets and which he, likewise, marked with the initial "CMP." He, together with team members PO2 Igno and MADAC Operative Gutierrez, then brought the sachets with shabu to the PNP Crime Laboratory for examination after securing a letter-request for examination from the DEU Office. Relevant portions of MADAC Operative Farias's testimony that detailed the events leading to the arrest of accused-appellant are as follows:
PROS. BAGAOISAN Who among you walked in going to Kalayaan? WITNESS The informant, PO2 Barrameda, PO2 Igno and Oscar Gutierrez, sir. PROS. BAGAOISAN What time did you arrive at Kalayaan St? WITNESS: At about 8:45 pm., sir. PROS. BAGAOISAN And, what happened after you arrived at Kalayaan St.? WITNESS I was introduced by the informant to Alias Ato, sir. PROS. BAGAOISAN When you first saw this Alias Ato, what was he doing? WITNESS He was standing along Kalayaan Avenue, sir. PROS. BAGAOISAN How were you introduced to Alias Ato? WITNESS That I was in need and I was going to buy shabu, sir.

PROS. BAGAOISAN What happened after you were introduced to Alias Ato? WITNESS I immediately handed over to him the 200-peso bills, sir. PROS. BAGAOISAN After you handed over these 200-peso bills to Alias Ato, what happened next? WITNESS He immediately drew from his right pocket a black coin purse, sir. PROS. BAGAOISAN And, what happened after he drew the black coin purse? WITNESS From there he drew the plastic sachet, sir. PROS. BAGAOISAN And, what did he do to this plastic sachet that he drew from this black coin purse? WITNESS He handed it over to me, sir. PROS. BAGAOISAN After he handed over to you the plastic sachet, what happened next? WITNESS I took out my face towel that was placed in my right shoulder signifying that the transaction have already been consummated, sir. PROS. BAGAOISAN You mentioned, Mr. Witness, that Alias Ato took out a plastic sachet from the coin purse, if that item which he took out from the coin purse will be shown to you will you be able to identify the same? WITNESS Yes, sir. PROS. BAGAOISAN I am showing you, Mr. Witness this plastic sachet containing white crystalline substance, will you please go over the same and tell us what relation does this have to the item you purchase from Alias Ato? WITNESS: That is the very one, sir. PROS. BAGAOISAN Why are you so sure that this is the same item that you bought from Alias Ato?

WITNESS I placed markings there, sir. PROS. BAGAOSAN: What markings did you place in this transparent plastic sachet. WITNESS CMP. Sir. PROS. BAGAOISAN And, what does this CMP stand for? WITNESS: Carlito Mateo y Patawid, sir. PROS. Bagaoisan Why CMP, where did you get this name? WITNESS PO2 Igno asked for his full name, sir. PROS. BAGAOISAN This crystalline substance contained in plastic sachet was previously marked as Exhibit G, Your Honor, and this is the subject of sale. Now, after you gave this signal removing the towel from your right shoulder, what happened next? WITNESS: My back up immediately approached us, sir. PROS. BAGAOISAN And, who were these back up who approached you? WITNESS Oscar Gutierrez, PO2 Igno and PO2 Barrameda, sir. PROS. BAGAOISAN After your back up arrived, what did you do next? WITNESS I introduced to Alias Ato that I am a member of MADAC, sir. PROS. BAGAOISAN After you introduced yourself as a member of MADAC, what happened next? WITNESS We arrested him, sir. PROS. BAGAOISAN And, what happened after you arrested him? WITNESS

My back up Oscar Gutierrez recovered seven more plastic sachets suspected to be shabu, sir. PROS. BAGAOISAN Where did he recover this seven other plastic sachets? WITNESS At the right front pocket, sir. PROS. BAGAOISAN If those seven plastic sachets will be shown to you, will you be able to identify the same? WITNESS Yes, sir. PROS. BAGAOISAN I am showing to you, Mr. Witness, several plastic sachets, seven plastic sachets, will you please go over the same and tell us what relation does this have to the seven plastic sachets recovered by your back (sic) to the possession of Alias Ato? WITNESS CMP-1, CMP-2, CMP-3, CMP-4, CMP-5, CMP-6 and CMP-7, these are the plastic sachets that he recovered , sir. PROS. BAGAOISAN And, you read before us markings CMP-1 to CMP-7, what does this markings stands for? WITNESS Carlito Mateo Patawid, sir PROS. BAGAOISAN At what point in time did you place the markings to this transparent plastic sachets including the sachet which is the subject of sale? WITNESS Right at the place of operation, sir PROS. BAGAOISAN Now, Mr. Witness, earlier you mentioned of a black coin purse where Alias Ato drew a plastic sachet, now, if that black coin purse will be shown to you, will you able to identify the same?

WITNESS Yes, sir. PROS. BAGAOISAN I am showing to you black coin purse, will you please go over the same and tell us what relation does this have to the black coin purse where Alias Ato drew a transparent plastic sachet the one subject matter of the sale? WITNESS The shabu was taken out from the black coin purse, sir. PROS. BAGAOISAN This black coin purse was previously marked as Exhibit M, Your Honor COURT Now, who recovered that black coin purse? WITNESS Oscar Gutierrez, my back up, sir. PROS. BAGAOISAN Now, do you know, Mr. Witness, if aside from the items taken from this black coin purse, I am referring to the sachet the sachet (sic) that you purchased, where there any other contents in the black coin purse? WITNESS No more, sir. PROS. BAGAOISAN So, there was only one sachet contained in the black coin purse? WITNESS There were eight plastic sachets, the one that was the subject of the sale, and seven other plastic sachets that were later on recovered, sir. PROS. BAGAOISAN Now, Mr. Witness, do you recall having issued a statement in connection with the operation that you conducted? WITNESS Yes, sir.[26]

We agree with the Court of Appeals that the foregoing testimony of MADAC Operative Farias establishes beyond reasonable doubt accused-appellant's culpability. His testimony regarding the circumstances that occurred in the early hours of 28 June 2003 - from the moment their office received a confidential tip from their informer up to the time they accosted appellant - deserve to

be given significance as it came from the mouth of a law enforcement officer who enjoys the presumption of regularity in the performance of his duty. Police officers are presumed to have acted regularly in the performance of their official functions in the absence of clear and convincing proof to the contrary or proof that they were moved by ill will. [27] Accused-appellant's bare-faced defense of denial cannot surmount the positive and affirmative testimony offered by the prosecution. It is well-settled that positive declarations of a prosecution witness prevail over the bare denials of an accused.[28] A defense of denial which is unsupported and unsubstantiated by clear and convincing evidence becomes negative and self-serving, deserving no weight in law, and cannot be given greater evidentiary value over convincing, straightforward and probable testimony on affirmative matters. [29] Denial is an inherently weak defense which must be supported by strong evidence of non-culpability to merit credibility.[30] We further reject accused-appellant's argument that no surveillance was conducted before the busy-bust operation. Prior surveillance is not a pre-requisite for the validity of an entrapment operation, especially when the buy-bust team members were accompanied to the scene by their informant.[31] In the instant case, the arresting officers were led to the scene by poseur-buyer MADAC Operative Farias. It has also been ruled in People v. Tranca[32] that there is no rigid or textbook method of conducting buy-bust operations. Flexibility is a trait of good police work. The police officers may decide that time is of the essence and dispense with the need for prior surveillance. Accused-appellant also argued that the prosecution failed to prove that the confiscated drug and the specimen that was weighed and examined in the crime laboratory was identified as the one taken from the accused-appellant. A forensic examination was conducted by Police Inspector and Forensic Chemical Officer Engr. Richard Allan B. Mangalip and the drugs taken were weighed as shown by Report No. D-777-038, [33] to wit: A-1 (CMP) = 0.10 g A-5 (CMP-4)=0.01 g A-2 (CMP-1) = 0.05 g. A-6 (CMP-5)= 0.03g A-3 (CMP-2) = 0.03 g A-7 (CMP-6)=0.04g A-4 (CMP-3)= 0.01g A -8 (CMP-7)=0.03g Prosecution witness PO2 Igno was presented and he identified the plastic sachets of shabu which all bore the initials "CMP." He substantially corroborated the testimony of Farias on all material points. Thus: Pros. Bagaoisan I am showing to you Mr. Witness these coin purse and eight (8) plastic sachets containing white crystalline substance. Please go over the same and tell us if this is the same coin purse recovered from the accused and tell us also which of these plastic sachets were the subject of sale transaction and the subject of possession. Witness This is the same coin purse where these (7) plastic sachets with suspected shabu are contained. This sachet with marking "CMP" was the subject of sale transaction while the sachets with markings "CMP-1" to "CMP-7" were the subject of possession. Pros. Bagaoisan

The witness Your Honor identified Exhibit "M" as the coin purse where these seven (7) plastic sachets of suspected shabu are contained. The witness identified Exhibits "E" as the subject of sale while Exhibits "F" to "L" as the subject of possession of the accused. Mr. Witness, where did you bring the accused after you arrested him? Witness We brought him to the DEU office, sir.

Pros. And what did you do with the dangerous drugs subject matter of

Bagaoisan these cases?

A We brought the same to the PNP Crime Laboratory for examination, sir.[34] Another prosecution witness, MADAC Operative Oscar Gutierrez, identified the sachets of shabu and similarly corroborated the testimonies of MADAC Operative Farias and PO2 Igno on the details of the incident. Pros. Bagaoisan Mr. Witness, you also mentioned in this affidavit that aside from the buy bust money you were also able to recover a black coin purse containing seven (7) plastic sachets of suspected shabu. Now, if that black coin purse will be shown to you, would you be able to identify the same? Witness Yes, sir. Q. I'm showing to you this black coin purse previously marked as Exhibit "M." Will you please go over it and tell us what relation does this have to the black coin purse that you recovered from the possession of the accused? This is the same, sir. If the seven (7) plastic sachets containing shabu will be shown to you, would you be able to identify the same?

A. Q. Witness Yes, sir.

Pros. Bagaoisan I'm showing to you these seven (7) plastic sachets of suspected shabu contained in this black coin purse. Will you please go over the same and tell us what relation do these have to the plastic sachets of shabu which were recovered from the possession of the accused? Witness These are the same, sir. Pros. Bagaoisan Your Honor, the witness identified the seven (7) plastic sachets containing white crystalline substance which were previously marked as Exhibits "F" to "L." The witness claims that these are the same plastic sachets containing suspected shabu which are contained in that black coin purse recovered from the possession of the accused. Why are you certain that these are the same sachets that were contained in that black coin purse? Witness Because of the initial "CMP", sir. Pros. Bagaoisan Were you able to see the shabu subject matter of the sale transaction between the poseur buyer and the accused? A Q No sir, only the exchange. After you have arrested the accused, where did you bring him?

A Q A Q

At the DEU office, sir. What happened there? We asked for a request for drug test, sir. What about the drugs subject matter of these cases, what did you do with them?

A We brought the same to PNP Crime Laboratory for examination, sir.[35] It is worth noting that the defense failed to point out any single mistake or inconsistency in the testimonies of the policemen. Consequently, the respective rulings of the trial court and the Court of Appeals upholding the regularity and legitimacy of the conduct of the buy-bust operation must be affirmed. The evaluation of testimony is a primary task of trial courts before whom conflicting versions of the same events come up day after day. We emphasize that the trial court's determination on the issue of the credibility of witnesses and its consequent findings of fact must be given great weight and respect on appeal, unless certain facts of substance and value have been overlooked which, if considered, might affect the result of the case. This is so because of the judicial experience that trial courts are in a better position to decide the question, having heard the witnesses themselves and observed their deportment and manner of testifying during the trial. It can thus more easily detect whether a witness is telling the truth or not. [36] Besides, we have held that inconsistencies in the testimonies of witnesses which refer to minor and insignificant details cannot destroy their credibility. Such minor inconsistencies even guarantee truthfulness and candor.[37] In light of the foregoing, we rule that the guilt of accused-appellant of the crimes charged have been established beyond reasonable doubt. A determination of the appropriate penalties to be imposed upon him is now in order. Under the law, the illegal sale of shabu or the brokering of any such transaction carries with it the penalty of life imprisonment to death and a fine ranging from five hundred thousand pesos (P500,000.00) to ten million pesos (P10,000,000.00), regardless of the quantity and purity involved. [38] On the other hand, the illegal possession of less than five (5) grams of said dangerous drug is penalized with imprisonment of twelve (12) years and one (1) day to twenty (20) years and a fine ranging from three hundred thousand pesos (P300,000.00) to four hundred thousand pesos (P400,000.00).[39] 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 imprisonment or death, and the fine as provided for by law. In the light, however, of the effectivity of Republic Act No. 9346, entitled "An Act Prohibiting the Imposition of Death Penalty in the Philippines," the imposition of the supreme penalty of death has been prohibited. Consequently, the penalty to be meted out to accused-appellant shall only be life imprisonment and fine.[40] Hence, the penalty of life imprisonment and a fine of P500,000.00 were properly imposed on accused-appellant in Criminal Case No. 03-2337-D for illegal sale of shabu. As regards the penalty imposed in Criminal Case No. 03-2338, the same should be modified. The period of imprisonment imposed should not be a straight penalty, but should be an indeterminate penalty. Applying the Indeterminate Sentence Law, accused-appellant is sentenced to twelve (12) years and one (1) day, as minimum, to twenty (20) years, as maximum. The P300,000.00 fine imposed by the trial court is affirmed. WHEREFORE, premises considered, the decision dated 31 October 2006 of the Court of Appeals in CA-G.R. H.C. CR No. 00709, affirming in toto the Decision of the Regional Trial Court of Makati City, Branch 64, in Criminal Cases No. 03-2337 and No. 03-2338, is hereby AFFIRMED with the modification that the penalty of imprisonment imposed in Criminal Case No. 03-2338 shall be twelve (12) years and one (1) day, as minimum, to twenty (20) years, as maximum. No costs.

SO ORDERED.

THIRD DIVISION [G.R. No. 180511, July 28, 2008] PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. MARILYN NAQUITA Y CIBULO, ACCUSED-APPELLANT. DECISION CHICO-NAZARIO, J.: Assailed before Us is the Decision[1] of the Court of Appeals in CA-G.R. CR-H.C. No. 01344 dated 29 December 2006 which affirmed with modification the Decision[2] of the Regional Trial Court (RTC) of Caloocan City, Branch 120, in Criminal Cases Nos. C-69156 and C-69157, finding accused-appellant Marilyn C. Naquita guilty of violation of Sections 5[3] and 11,[4] Article II of Republic Act No. 9165, otherwise known as Comprehensive Dangerous Drugs Act of 2002. On 19 September 2003, appellant was charged in two informations with Violation of Sections 5 and 11, Article II of Republic Act No. 9165. The accusatory portion of the informations reads: Crim. Case No. C-69156 That on or about the 17th day of September, 2003 in Caloocan City, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, without any authority of law, did then and there wilfully, unlawfully and feloniously sell and deliver to PO1 JOEL C. COSME, who posed as poseur buyer, one (1) heat sealed transparent plastic sachet containing 2.05 grams, knowing the same to be a dangerous drug.[5] Crim. Case No. C-69157 That on or about the 17th day of September, 2003 in Caloocan City, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, without any authority of law, did then and there wilfully, unlawfully and feloniously have in her possession, custody and control two (2) pcs. of transparent plastic sachets containing Methylamphetamine Hydrochloride with a total weight of 3.90 grams, knowing the same to be a dangerous drug.[6] When arraigned on 2 October 2003, appellant, with the assistance of counsel de oficio, pleaded "Not guilty" to the crimes charged. In the pre-trial conference conducted on 18 November 2003, counsel for appellant admitted the jurisdiction of the trial court and the identity of the appellant as the person named and charged in

the informations filed. With the termination of the pre-trial conference, joint trial of the cases ensued. The following witnesses took the stand for the prosecution: (1) Police Officer 1 (PO1) Joel Cosme [7] and (2) PO1 Randy Llanderal,[8] both police officers assigned at the District Anti-Illegal Drugs Special Operations Group (DAID-SOG), Northern Police District Command, Tanigue St., Kaunlaran Village, Caloocan City. From the collective testimonies of the witnesses, the version of the prosecution is as follows: On 17 September 2003, at around 3:00 o'clock in the afternoon, a confidential informant went to the office of the DAID-SOG, Northern Police District Command in Caloocan City and reported to PO3 Joel Borda that one alias Inday (appellant) was selling shabu at Binangonan, Maypajo, Caloocan City. The information was relayed to Police Chief Inspector (P/Chief Insp.) Rafael Santiago, Jr. who then instructed PO3 Borda to organize a team and to conduct surveillance for a possible buy-bust operation. A buy-bust team was formed which was composed of PO3 Borda as team leader; PO1 Joel Cosme as the poseur-buyer; and PO2 Mananghaya, PO2 Amoyo, PO2 Lagmay, PO2 Velasco, PO2 Dela Cruz, PO1 Reyes and PO1 Randy Llanderal as members. The buy-bust money, which consisted of six P500.00 bills,[9] was given by P/Chief Insp. Santiago to PO1 Cosme who placed his initials[10] thereon. The serial numbers of the buy-bust money were then recorded by the desk officer on duty. During the briefing, it was agreed upon that the pre-arranged signal to be made by the poseur-buyer, signifying that the shabu had been bought from alias Inday, was the scratching of the left ear. At around 4:00 p.m., the team, together with the confidential informant, proceeded to Maypajo, Caloocan City. Arriving thereat at around 4:30 p.m., the team conducted a surveillance of Binangonan Street. At around 8:00 p.m., team leader PO3 Borda decided to start the buy-bust operation against appellant. The confidential informant and PO1 Cosme approached the appellant who was standing along Binangonan Street. PO1 Llanderal was about five meters away, while the rest of the team members stayed at the van. The confidential informant introduced PO1 Cosme to appellant as someone who was looking for a person who was selling shabu. Appellant asked PO1 Cosme how much he intended to buy. The latter answered, "KALAHATING BULTO. HALAGANG TATLONG LIBO." PO1 Cosme gave the money to appellant who, in turn, took out plastic sachets from her pocket and gave one to PO1 Cosme. Appellant returned the other plastic sachets to her pocket. After receiving the plastic sachet, PO1 Cosme examined the same and, as a pre-arranged signal, scratched his left ear. Noticing that PO1 Llanderal was already near, PO1 Cosme held appellant and introduced himself as a police officer. He retrieved the buy-bust money which appellant was still holding. PO1 Llanderal arrived from behind appellant and ordered her to empty her pockets. PO1 Llanderal recovered two plastic sachets. With the arrest of appellant, the team immediately returned to their office. The marked money used and the three plastic sachets allegedly containing shabu were turned over to PO1 Ariosto Rana, the investigator of the case. The plastic sachet[11] sold to PO1 Cosme was marked "JCC," while the two plastic sachets[12] recovered by PO1 Llanderal were marked "RML-1" and "RML-2," respectively. It was in their office that the police officers came to know the complete name of appellant. The white crystalline substance in the three plastic sachets recovered from appellant were forwarded to the Philippine National Police Crime Laboratory, Northern Police District Crime Laboratory Office, Caloocan City, for laboratory examination to determine the presence of any dangerous drug. The request for laboratory examination was signed by P/Chief Insp. Rafael Santiago, Jr.[13] Per Physical Sciences Report No. D-1217-03, the specimens[14] submitted contain methylamphetamine hydrochloride, a dangerous drug. The testimony of Police Inspector Jesse Abadilla dela Rosa, Forensic Chemical Officer who examined the specimens recovered from appellant, was dispensed with, after counsel for the appellant admitted that the witness was an expert witness and that, upon request by police officers, he conducted qualitative examination on the specimens. His findings are contained in Physical Sciences Report No. D-1217-03.[15] Counsel for the appellant also admitted that PO2 Ariosto Rana was the investigator in the case, that it was he who prepared the Referral Letter addressed to the City Prosecutor, the Affidavit of Arrest and the Request for Laboratory Examination; and that he could identify the appellant and the specimens marked. With said admission, the testimony of PO2

Rana

was

likewise

dispensed

with.[16]

For the defense, Reynaldo Reyes,[17] Antonio San Pedro,[18] Maricris Manoles[19] and the appellant[20] took the witness stand. Reynaldo Reyes, barangay kagawad and resident of 199 Pateros St., Maypajo, Caloocan City, testified that at around 6:00 p.m. of 17 September 2003, while he was on duty at the barangay hall located at Binangonan St., Maypajo, Caloocan City, Antonio San Pedro arrived and asked for assistance. At that time, he was with barangay tanods Abdul Mina and Dolly Evangelista. They responded and proceeded to the house of Aling Inday (appellant) at Bagong Sibol. Arriving thereat at around 7:00 p.m., he saw more or less ten policemen. The policemen who were inside appellant's house searched the ground floor and the second floor. He asked two policemen who were outside what the problem was. He was told that appellant was a dealer of shabu. Reyes narrated that appellant was with her daughter and a little girl inside the house. He added that when he asked the policemen if they had a search warrant to search the house, he was told that the barangay hall knew of the operation. When appellant was arrested, he said the policemen showed them the shabu contained in a plastic sachet which weighed more or less half a kilo. Thereafter, the policemen brought the appellant with them. Reyes disclosed that he executed a Pinagsamang Sinumpaang Salaysay[21] on 21 September 2003 which he subscribed before the Assistant City Prosecutor of Caloocan City on 26 September 2003. Antonio San Pedro, tricycle driver and resident of 103 Binangonan St., Maypajo, Caloocan City recounted that at about 5:30 p.m. of 17 September 2003, he was in Benitez Elementary School at Gagalangin, Tondo, Manila waiting for Angela Naquita, the niece of appellant, whom he was going to fetch. He fetched Angela and they proceeded to her house in Bagong Sibol, Caloocan City. They arrived at the house at around 6:30 p.m., and appellant, who was then washing clothes, opened the gate. After Angela entered the gate and after appellant gave her P100.00, a group of policemen, numbering more or less ten, suddenly entered the gate. Appellant closed the gate and the policemen entered the house. Some of the policemen went upstairs while the others held the appellant, forcing her to sit down. Appellant shouted, "BAKIT NINYO AKO HUHULIHIN? BAKIT KAYO NAGSIPASOK SA BAHAY? SINO BA KAYO?" San Pedro looked inside the house and saw appellant resisting. When appellant saw him, appellant asked him to seek assistance from the barangay. He went to the barangay hall at Binangonan Street where he saw Kagawad Reyes, Abdul Mina and Danny Evangelista. He asked for help and told them to go to the house of appellant. They proceeded to the house and arrived around 7:00 p.m. They introduced themselves as barangay officials and were allowed to enter the house. Aside from appellant, Angela Naquita and Maricris Naquita were also in the house when the policemen entered. Mr. San Pedro testified that he executed a Sinumpaang Salaysay[22] dated 19 September 2003 which he subscribed before the Assistant City Prosecutor on 26 September 2003. Next to testify for the defense was Maricris Manoles,[23] student and daughter of the appellant. She testified that on 17 September 2003, she was in school at the Centro Escolar University by 7:00 a.m. By 3:00 p.m., she was already in her house at 67 Binangonan St., Maypajo, Caloocan City. It was her mother, the appellant, who was sleeping when she arrived, who opened the gate for her. Thereafter, her mother did the laundry. After changing clothes, Maricris bought merienda and ate the same in her house with her boyfriend. By 5:00 p.m. her boyfriend left and she then watched television. While watching television, her ten-year-old niece, Angela Naquita, arrived riding a tricycle. When appellant opened the gate, more or less nine policemen also entered their residence. Appellant was surprised and became hysterical. Both Maricris and her mother were crying. The policemen proceeded upstairs to appellant's room and searched the same. Appellant sat in the sofa and was prevented from going upstairs. Maricris was able to go upstairs after she was instructed by appellant to check the latter's money that was kept there. After around thirty minutes, three barangay officials arrived and were able to enter the house. However, after a while, the policemen told the three to leave. At past 7:00 p.m., appellant was taken by the policemen to Larangay Police Station in Caloocan City. The policemen, as well as appellant, did not allow Maricris to go with them. Maricris informed her friends and relatives about the incident. She took pictures[24] of appellant's room and their gate. She added that when she proceeded to the police station, a police officer demanded P200,000.00 for the release of appellant.

Maricris executed a sworn statement[25] dated 6 October 2003 which she subscribed before the Assistant City Prosecutor of Caloocan City on 24 October 2003. She alleged therein that the police officers took several pieces of jewelry, a Nokia cell phone and P72,000.00. The sworn statement, she said, will be used for cases filed by appellant. Appellant testified for her defense. She testified that she was separated, a businesswoman engaged in buy and sell, and a resident of 67 Bagong Sibol St., Maypajo, Caloocan City. Appellant narrated that at around 6:30 p.m. of 17 September 2003, she was in her house washing clothes. Her daughter, Maricris, was inside watching television. While doing the laundry, her niece, Angela, arrived and called her and told her that the tricycle driver, Antonio San Pedro, wanted to get a P100.00 vale. After her niece entered the gate, she was surprised that nine to ten persons entered the gate. It was the first time she saw these persons who were in civilian clothes and were armed with a long firearm. Appellant tried to prevent them from entering the house but to no avail. Seeing that five to six men went upstairs, she told Mr. San Pedro to call barangay officials. She had no idea what the armed men did but she asked her daughter to go upstairs because her money was in the second floor. Her daughter informed her that her cell phone worth P15,000.00, several pieces of jewelry worth P15,000.00, and cash amounting to P72,000.00 were missing from her room. Barangay officials arrived and she asked them to go inside but they were prevented by these men. It was at this moment that the armed men introduced themselves as policemen to the barangay officials. After searching her residence and taking several of her belongings, the policemen brought her to Larangay Police Station. At the police station, appellant was informed that she was being charged with violation of Section 5 of Republic Act No. 9165. A certain Gilbert Velasco told her that if she did not give money, she could not go home. Another police officer named Toto, she claimed, also talked to her and relayed the same message. She alleged that the policemen told her that someone pointed to her as one involved in drugs. Appellant denied that she was peddling shabu at 8:00 p.m. of 17 September 2003 when she was arrested by policemen. Appellant revealed that she executed a Sinumpaang Salaysay[26] dated 6 October 2003, and filed cases of robbery, illegal arrest and violation of Section 29 of Republic Act No. 9165 against the policemen named therein. She added that prior to the incident, she did not know PO1 Joel Cosme, PO1 Llanderal, and the members of the DAID-SOG. The testimony of Abdul Mina, member of the Lupong Tagapamayapa, was dispensed with after the public prosecutor admitted that said witness would corroborate the testimony Reynaldo Reyes.[27] On 28 June 2005, the trial court rendered its decision convicting appellant of violation of Sections 5 and 11 of Republic Act No. 9165. The decretal portion of the decision reads: WHEREFORE, premises considered, the Court finds and so holds that accused MARILYN NAQUITA y CIBULO is GUILTY beyond reasonable doubt [of] Violation of Republic Act No. 9165 otherwise known as the Comprehensive Dangerous Drugs Act of 2002, and imposes upon her the following: 1. In Criminal Case No. C-69156 for Violation of Section 5, Article II, the penalty of LIFE IMPRISONMENT and a fine of P500,000.00; and 2. In Criminal Case No. C-69157 for Violation of Section 11, Article II, the penalty of imprisonment of Twelve (12) years and One (1) day to Twenty (20) years and a fine of P300,000.00. The three (3) pieces of heat-sealed transparent plastic sachets each containing 2.05 gram(s) ("JCC"), 1.84 gram(s) ("RML-1") and 2.05 gram(s) ("RML-2") of Methylamphetamine Hydrochloride are hereby ordered confiscated in favor of the government to be turned over [to] the Philippine Drug Enforcement Agency for proper disposition.[28] The trial court convicted appellant for selling and possessing dangerous drugs on the strength of the testimonies of PO1 Cosme and PO1 Llanderal as well as the Physical Sciences Report adduced in evidence by the prosecution. It did not give weight to appellant's claims of frame-up and extortion. It further appreciated in favor of the police officers the presumption of regularity in the performance of official duty when accused admitted that she did not know any of the operatives

who took part in the buy-bust operation and that the policemen had no motive for falsely imputing to her a serious crime. On 11 July 2005, appellant filed a Notice of Appeal.[29] With the filing thereof, the trial court ordered the elevation of the entire records of the case to the Court of Appeals. [30] On 29 December 2006, the Court of Appeals dismissed appellant's appeal and affirmed her conviction for the crimes charged. It, however, modified the penalty imposed in Criminal Case No. C-69157. The dispositive portion of the decision reads: WHEREFORE, in the light of the foregoing, the appeal is DISMISSED for lack of merit. The assailed decision is AFFIRMED with the MODIFICATION that the accused-appellant in Criminal Case No. C69157 is sentenced to suffer an indeterminate penalty of imprisonment of twelve (12) years and one (1) day, as minimum, to thirteen (13) years, as maximum, and to pay a fine of Three Hundred Thousand Pesos (P300,000.00). Costs against the accused-appellant.[31] Appellant filed a Motion for Reconsideration[32] of the Court of Appeals decision which the appellate court denied in its Resolution dated 18 April 2007.[33] Appellant filed a Notice of Appeal notifying the Court of Appeals of her intention to appeal her conviction before the Supreme Court.[34] In our Resolution[35] dated 28 January 2008, this Court accepted appellant's appeal and notified the parties that they may file their respective supplemental briefs, if they so desired, within thirty (30) days from notice. Both partied 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. [36] Appellant tasks this Court with the following assignment of errors:

1. The Court a quo gravely erred in completely disregarding the defense' factual version and
upholding the presumption of regularity of performance of official duties despite the accused-appellant's version supported by disinterested witnesses and Barangay officials.

2. The Court a quo gravely erred in finding accused-appellant guilty beyond reasonable doubt
of violation of Section 5 and 11, Article II of Republic Act 9165 based on the weakness of the defense evidence and not on the strength of prosecution's evidence.[37] Appellant assails her conviction primarily on the ground that the trial court gave more credence to the testimonies of the police officers who took part in the buy-bust operation than the testimonies of the defense witnesses. She claims that the defense witnesses are more credible than the selfserving allegations of the police officers. She faults the police officers for not naming the informant who revealed to them that she was a drug peddler. Appellant adds that the trial court should not have relied mainly on the weakness of the defense; rather, it should have relied on the strength of the prosecution's evidence. She maintains that the buy-bust operation suffers from severe factual and legal infirmity because of lack of a Pre-Operation and Coordination Report prior to the actual drug operation; and that the police officers violated Section 21 of Republic Act No. 9165, because the buy-bust team failed to conduct a physical inventory of the drugs seized and to photograph the same in the presence of the people mentioned in said section. Appellant insists there was no buy-bust operation conducted at 8:00 p.m. of 17 September 2003 in Binangonan St., Maypajo, Caloocan City where she was allegedly caught in flagrante selling and possessing dangerous drugs. According to her, the policemen, without any valid search warrant, conducted a raid and took valuable items from her house located at 67 Bagong Sibol St., Maypajo, Caloocan City at around 6:30 to 7:00 p.m. of 17 September 2003, and subsequently arrested her for supposedly being involved in drugs. The issue of whether or not there was indeed a buy-bust operation primarily boils down to one of credibility. In a prosecution for violation of the Dangerous Drugs Law, a case becomes a contest of the credibility of witnesses and their testimonies.[38] When it comes to credibility, the trial court's assessment deserves great weight, and is even conclusive and binding, if not tainted with arbitrariness or oversight of some fact or circumstance of weight and influence. The reason is obvious. Having the full opportunity to observe directly the witnesses' deportment and manner of

testifying, the trial court is in a better position than the appellate court to evaluate testimonial evidence properly.[39] The rule finds an even more stringent application where the said findings are sustained by the Court of Appeals.[40] After examining the records on hand, we find no reason to overrule the findings of the trial court as affirmed by the Court of Appeals. Appellant insists that the testimonies of her "independent" witnesses Reynaldo Reyes, Antonio San Pedro and Maricris Manoles should be given more weight than the testimonies of the prosecution witnesses. We do not agree. Maricris Manoles is appellant's daughter, while Antonio San Pedro is her friend serving as the tricycle service of her niece, Angela Naquita. Their testimonies are necessarily suspect, considering they are appellant's close relative and friend.[41] As to Barangay Kagawad Reynaldo Reyes and Antonio San Pedro, we find them unreliable. Their declarations were not in accord with each other on the question of whether or not the barangay officials were allowed inside the house of appellant when the policemen supposedly violated its sanctity. Reyes said he and two other barangay officials were not allowed inside appellant's house.[42] Said statement was confirmed by appellant[43] but was contradicted by San Pedro. [44] Appellant argues that the policemen's allegations are sham and false, purposely made to cover up their criminal acts. She adds that they could not even name the informant who allegedly revealed to them that she was a drug peddler. The presentation of an informant is not a requisite in the prosecution of drug cases. [45] The failure of the prosecution to present the informant does not vitiate its cause as the latter's testimony is not indispensable to a successful prosecution for drug-pushing, since his testimony would be merely corroborative of and cumulative with that of the poseur-buyer who was presented in court and who testified on the facts and circumstances of the sale and delivery of the prohibited drug. [46] Failure of the prosecution to produce the informant in court is of no moment, especially when he is not even the best witness to establish the fact that a buy-bust operation has indeed been conducted. [47] Informants are usually not presented in court because of the need to hide their identities and preserve their invaluable services to the police. It is well-settled that except when the accused vehemently denies selling prohibited drugs and there are material inconsistencies in the testimonies of the arresting officers, or there are reasons to believe that the arresting officers had motives to falsely testify against the accused, or that only the informant was the poseur-buyer who actually witnessed the entire transaction, the testimony of the informant may be dispensed with as it will merely be corroborative of the apprehending officers' eyewitness accounts. [48] In the case under consideration, none of the exceptions are present that would make the testimony of the confidential informant indispensable. As admitted by appellant, the police officers who testified against her were not known to her before her arrest. We likewise do not find material inconsistencies in their testimonies. Further, the informant is a person different from the poseurbuyer. What we find vital is appellant's apprehension while peddling and possessing dangerous drugs by PO1 Cosme and PO1 Llanderal. To further cast doubt on the existence of the buy-bust operation, appellant contends that the alleged buy-bust operation suffered from severe infirmity, both factual and legal. She argues that not only was there no Pre-Operation and Coordination Report prior to the actual drug operation as required in Section 86[49] of Republic Act No. 9165, Section 21 thereof was also violated by the buybust team when it failed to make a physical inventory of the drugs seized and confiscated and to take photographs thereof in the presence of persons mentioned in said section. Non-compliance with the aforesaid sections does not mean that no buy-bust operation against appellant ever took place. The failure of the police operatives to comply with Section 86 will neither render her arrest illegal nor the evidence seized from her inadmissible. In People v. Sta. Maria,[50] we have ruled on the same issue as follows: Appellant would next argue that the evidence against him was obtained in violation of Sections 21 and 86 of Republic Act No. 9165 because the buy-bust operation was made without any involvement of the Philippine Drug Enforcement Agency (PDEA). Prescinding therefrom, he concludes that the prosecution's evidence, both testimonial and documentary, was inadmissible

having The x

been

procured

in

violation

of

his

constitutional is x

right

against

illegal

arrest.

argument x

specious. x

Cursory read, the foregoing provision is silent as to the consequences of failure on the part of the law enforcers to transfer drug-related cases to the PDEA, in the same way that the Implementing Rules and Regulations (IRR) of Republic Act No. 9165 is also silent on the matter. But by no stretch of imagination could this silence be interpreted as a legislative intent to make an arrest without the participation of PDEA illegal nor evidence obtained pursuant to such an arrest inadmissible. It is a well-established rule of statutory construction that where great inconvenience will result from a particular construction, or great public interests would be endangered or sacrificed, or great mischief done, such construction is to be avoided, or the court ought to presume that such construction was not intended by the makers of the law, unless required by clear and unequivocal words. As we see it, Section 86 is explicit only in saying that the PDEA shall be the "lead agency" in the investigations and prosecutions of drug-related cases. Therefore, other law enforcement bodies still possess authority to perform similar functions as the PDEA as long as illegal drugs cases will eventually be transferred to the latter. Additionally, the same provision states that PDEA, serving as the implementing arm of the Dangerous Drugs Board, "shall be responsible for the efficient and effective law enforcement of all the provisions on any dangerous drug and/or controlled precursor and essential chemical as provided in the Act." We find much logic in the Solicitor General's interpretation that it is only appropriate that drugs cases being handled by other law enforcement authorities be transferred or referred to the PDEA as the "lead agency" in the campaign against the menace of dangerous drugs. Section 86 is more of an administrative provision. By having a centralized law enforcement body, i.e., the PDEA, the Dangerous Drugs Board can enhance the efficacy of the law against dangerous drugs. x x x. Neither would non-compliance with Section 21[51] render an accused's arrest illegal or the items seized/confiscated from him inadmissible.[52] 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.[53] In the instant case, the integrity of the drugs seized from appellant was preserved. The chain of custody of the drugs subject matter of the case was shown not to have been broken. After PO1 Cosme and PO1 Llanderal seized and confiscated the dangerous drugs from appellant, same were marked and turned over to PO1 Ariosto Rana, the investigator of the case. The plastic sachet sold to PO1 Cosme was marked "JCC," while the two plastic sachets recovered by PO1 Llanderal were marked "RML-1" and "RML-2," respectively. As requested by P/Chief Insp. Rafael P. Santiago, Jr., the three plastic sachets containing white crystalline substance were forwarded to the Philippine National Police Crime Laboratory, Northern Police District Crime Laboratory Office, Caloocan City, for laboratory examination to determine the presence of any dangerous drug. Per Physical Sciences Report No. D-1217-03, the specimens submitted contain methylamphetamine hydrochloride, a dangerous drug. The elements necessary for the prosecution of illegal sale of drugs are (1) the identities of the buyer and the seller, the object, and consideration; and (2) the delivery of the thing sold and the payment therefor.[54] 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.[55] All these elements were established 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 to and identified in court. The poseur-buyer (PO1 Cosme) positively identified appellant as the seller of the shabu. Per Physical Sciences Report No. D-1217-03 of Police Inspector Jesse Abadilla dela Rosa, Forensic Chemical Officer, the substance, weighing 2.05 grams, which was bought by PO1 Cosme from appellant for P3,000.00, was examined and found to be methylamphetamine hydrochloride (shabu). Poseur-buyer PO1 Cosme narrated the transaction with appellant as follows: Q And how was the operation started?

I was with the confidential informant and PO1 Randy Llanderal was just a distance away from us, sir. And how about the other members of the team? They were in the van, sir. Where did you do together with the informant? We proceeded to where Alias Inday was, sir. Where is this place where she usually stands? Binangonan Street, sir, the same place. Were you able to arrive in said place? Yes, sir. Where was Alias Inday then at that time? She was standing along the street, sir. xxxx

Then she took plastic sachets containing suspected shabu from her pocket and she gave me one (1) plastic sachet, sir. What did she do with the other plastic sachets? She returned them to her pocket, sir. After that what then did you do? After I took hold of the plastic sachet containing shabu, I examined it then after that I scratched my ear, sir. And then? When I noticed that PO1 Randy Llanderal was already near us, I held Alias Inday, sir. After you introduced yourself as police officer, what else did you do? I took from her the buy-bust money worth three thousand (P3,000.00) pesos, sir. And were you able to get it?

Q A Q A Q A Q A Q A

Q A Q A

Q A

Q A

Q A

What then did you do after seeing this Alias Inday standing in the street? Together with the confidential informant, we approached Alias Inday and I was introduced to her, sir. How were you introduced informant to Alias Inday? by your

Court Q A From where in relation to the person of Inday? She was still holding the money, your Honor.[56]

Q A

The confidential informant told her (Inday) that I am looking for a person who is selling shabu, sir. What was the response of Inday? She asked me how much I intend to buy, sir. What was your answer? I told her, "KALAHATING BULTO. HALAGANG TATLONG LIBO." What then transpired after you told her your intention to buy? I first gave the money to Alias Inday, sir. And after that?

Q A Q A Q A Q

Appellant was likewise indicted for possession of two sachets of shabu respectively weighing 1.84 grams and 2.06 grams for a total weight of 3.90 grams. In illegal possession of dangerous drugs, the elements are: (1) the accused is in possession of an item or object which is identified to be a prohibited drug; (2) such possession is not authorized by law; and (3) the accused freely and consciously possessed the said drug.[57] All these elements have been established. PO1 Llanderal testified: Q- You started the buy bust operation at about 8:00 o'clock in the evening of December 17, 2003? QAQWhat did your team do? Me and PO1 Cosme alighted from the van together with the informant. Where did you proceed?

t: APo1 Cosme proceeded to the place where Inday was standing together with the informant. How far were you from them referring to Cosme and the informant? I hid near the parked jeep around five (5) meters away from them. And then what did you do with the distance of five (5) meters? We were actions. observing them and their AAQAQ-

you were located at that time you can overheard their transaction? Yes, your Honor the buying and handing. What do you mean you saw the handing of Cosme the extending of money? Yes, your Honor. Did you see also the accused counting the money she allegedly received? After PO1 Cosme handed the money, alias Inday took the plastic sachet, placed the money in her pocket and she took something from the other side of her pocket.

QAQAQAQ-

Where were you positioned then in that distance of five (5) meters away? I was inside the passenger jeepney. Was there anything blocking your sight to the place of Cosme and the informant and also the place of Inday? There was nothing blocking my sight. What did you observe if any? I saw PO1 Cosme introduced by the asset to Inday and I saw them talking sir. And then what else did you observe? They were talking and I overheard Inday asking how much, sir. And what was the reply of PO1 Cosme if you hear it? That I will buy "kalahati". AQAQQ-

Cour Of course you did not if there were two, t: three she just extended to him something? AAfter she took three (3) plastic sachets, one was given to PO1 Joel Cosme and the two (2) remaining sachets, she returned it to her pocket. After she put back the two (2) plastic sachets to her pocket, what then transpired? Then PO1 Joel Cosme scratched his ear as pre-arranged signal. After seeing the pre-arranged signal, what did you do? I slowly approached them sir. What did you do then after approaching them? While I was approaching them, PO1 Cosme identified himself to Alias Inday and Alias Inday was arrested. How about you, what did you do? And upon seeing PO1 Joel Cosme arresting Alias Inday, I requested Aling Inday to pull out her pocket. And what is the reaction of Alias Inday when you asked her to unload everything in her pocket? She uttered something that she does not know anything. And then?

AQAQAQA-

A-

Cour How far were you when you overheard t: the transaction between Cosme and the accused? AI was five (5) meters away, sir.

QA-

Cour You were only five meters away? t: AYes, sir.

Cour Why, were you hiding at that time? t: AI was hiding but transaction, sir. I can see their

Q-

AQ-

Cour You mean to say from the place where

contained shabu. AQAI ordered her to "ilabas mong lahat ang nasa iyong bulsa." And then? QAnd then what did you do upon seeing plastic sachets taken by her from her pocket which you suspect to be shabu?

After she pulled out her hand, I saw two A- We informed her that she is being (2) plastic sachets as far as I know it arrested.[58] Finally, appellant's allegation that the police officers were exacting P200,000.00 from her has no basis. Except for her bare allegations, unsupported by concrete proof, we cannot give such imputation a second look. IN ALL, the evidence for the prosecution established that appellant was apprehended in flagrante during a buy-bust operation in which she sold a sachet of shabu to PO1 Cosme, who acted as poseur-buyer, and was thereafter caught by PO1 Llanderal in possession of two more sachets of shabu. In this jurisdiction, the conduct of a buy-bust operation is a common and accepted mode of apprehending those involved in illegal sale of prohibited or regulated drugs. It has been proven to be an effective way of unveiling the identities of drug dealers and of luring them out of obscurity. [59] Unless there is clear and convincing evidence that the members of the buy-bust team were inspired by any improper motive or were not properly performing their duty, their testimonies on the operation deserve full faith and credit.[60] In the instant case, appellant miserably failed to show that the members of the buy-bust team were impelled by any improper motive or that they did not properly perform their duty. This being the case, we uphold the presumption of regularity in the performance of official duties. The law disputably presumes that official duty has been regularly performed. [61] The presumption was not overcome, there being no evidence showing that PO1 Cosme, PO1 Llanderal and the rest of the team were impelled by improper motive. In fact, appellant admitted that prior to the incident, she did not know PO1 Cosme, PO1 Llanderal and the rest of the buy-bust team. Having been caught in flagrante, appellant's identity as seller and possessor of the shabu can no longer be disputed. 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.[62] 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.[63] 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.[64] We now go to the penalties imposed on appellant for selling and possessing shabu. For selling shabu weighing 2.05 grams, the trial court imposed on appellant the penalty of life imprisonment and a fine of P500,000.00. Said penalty was affirmed by the Court of Appeals. As regards appellant's possession of 3.90 grams of shabu, the trial court imposed on him the penalty of twelve (12) years and one (1) day to twenty (20) years and a fine of P300,000.00. The Court of Appeals, applying the Indeterminate Sentence Law,[65] modified the penalty of imprisonment to twelve (12) years and one (1) day, as minimum, to thirteen (13) years, as maximum. Under Section 5, Article II of Republic Act No. 9165, 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.[66] The statute, in prescribing the range of penalties imposable, does not concern itself with the amount of dangerous drug sold by an accused. [67] With the effectivity, however, of Republic Act No. 9346, otherwise known as "An Act Prohibiting the Imposition of Death Penalty in the Philippines," the imposition of the supreme penalty of death has been proscribed. Thus, the penalty to be imposed on appellant shall only be life imprisonment and fine. Finding that the penalty imposed on appellant for selling shabu is in accordance with law, this Court upholds the same. As regards possession of dangerous drugs, the same is punished under Section 11, Article II of Republic Act No. 9165. Paragraph 2, No. 3 thereof, reads:

(3) Imprisonment of twelve (12) years and one (1) day to twenty (20) years and a fine ranging from Three hundred thousand pesos (P300,000.00) to Four hundred thousand pesos (P400,000.00), if the quantities of dangerous drugs are less than five (5) grams of x x x methamphetamine hydrochloride x x x. Having been caught in possession of 3.90 grams of shabu or methamphetamine hydrochloride, the afore-quoted paragraph provides for the appropriate penalty. Going over the penalty imposed by the Court of Appeals, we find it to be within the range provided for by law. We therefore sustain it. WHEREFORE, premises considered, the instant appeal is DENIED. The Decision of the Court of Appeals in CA-G.R. CR-H.C. No. 01344 dated 29 December 2006 sustaining the conviction of appellant Marilyn C. Naquita for violation of Sections 5 and 11, Article II of Republic Act No. 9165, is hereby AFFIRMED. No costs. SO ORDERED.

THIRD DIVISION [G.R. No. 181599, August 20, 2008] PEOPLE OF THE PHILIPPINES, APPELLEE, VS. SALVADOR DUMLAO Y AGLIAM, ALIAS "PANDORA", APPELLANT. DECISION YNARES-SATIAGO, J.: This is an appeal from the September 17, 2007 Decision[1] of the Court of Appeals in CA-G.R. CR No. 02392, which affirmed the January 12, 2004 Decision[2] of the Regional Trial Court of Urdaneta City, Branch 46, finding appellant Salvador Dumlao guilty beyond reasonable doubt of violating Section 5, Article II of Republic Act 9165, or the Comprehensive Dangerous Drugs Act of 2002 and sentencing him to suffer the penalty of life imprisonment and to pay a fine of P500,000.00 and the costs. On March 5, 2003, an Information[3] was filed charging appellant with the crime of illegal sale of dangerous drugs, the accusatory portion of which reads as follows: That on or about 5:00 o clock in the afternoon of October 29, 2002, at Brgy. Macalong, Asingan, Pangasinan and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously sell one (1) heat-sealed transparent plastic bag, containing Methamphetamine Hydrochloride (SHABU) a dangerous drug, weighing 0.07 gram. CONTRARY to Republic Act 9165, otherwise known as "Comprehensive Dangerous Drugs Act of 2002." Appellant pleaded "not guilty" when arraigned. During pre-trial conference, the parties stipulated on the identity of appellant and his lack of authority to possess or sell shabu; that the sachet containing some substance that was recovered from appellant was brought to the PNP Crime Laboratory and was found to be methamphetamine hydrochloride, a dangerous drug.[4] Trial on the merits thereafter ensued. The facts as found by the trial court and affirmed by the Court of Appeals are as follows: The evidences of the prosecution and the defense are in harmony as to the fact that on October 29, 2002 the accused was arrested by members of PNP Asingan, Pangasinan and was detained thereafter. There is likewise no conflict on the following: Identity of the accused as charged in the information; The shabu in question was brought to the PNP Crime Laboratory upon a letter request of the Chief of Police of Asingan, Pangasinan; and the PNP Crime Laboratory examined the shabu

and the same was found to be positive to the test of methamphetamine hydrochloride, a dangerous drug. These matters were admitted by the defense during the pre-trial conference. The conflict lies on how and why the accused was arrested and detained. The prosecution claims that the Asingan Police Station, after a previous surveillance confirming the illegal activities of the accused of selling shabu, planned and carried out a buy-bust operation on October 29, 2002. SPO1 Natividad, who was designated as buyer, went to the house of the accused accompanied by two assets. Another police officer, PO2 Manuel B. Abella, positioned himself few meters away from the accused's house as back-up. After some preliminary talk and introduction, SPO1 Natividad handed to the accused two 100-peso bills, which were earlier given by the Chief of Police to be used in the buy-bust operation. The accused left thereafter. When he returned, the accused delivered the shabu to Natividad. Thereupon, the accused was arrested. On the other hand, the accused who was the lone defense witness, claims that in the afternoon of October 29, 2002 he was visited by Jun-jun Castillo and a companion. After talking to them, during which he also served snacks, he accompanied them to the road. Then he sat down on a bench at the side of the road where a person was already seated. Jun-jun Castillo, who crossed to the other side of the road, shouted "arrest him." And the accused was immediately arrested by the person seated beside him, whom he later came to know as Police Officer Natividad. The accused was bodily searched but nothing was taken from him. At the police station, he was again bodily searched and nothing was found. The accused came to know only the reason of his arrest when Brgy. Capt. Mangosong arrived and informed him he was arrested for selling shabu which is not true.[5] The trial court found the prosecution's version more credible and accordingly found appellant guilty as charged. The dispositive portion of the Decision reads: WHEREFORE, the Court finds herein accused SALVADOR DUMLAO Y AGLIAM alias "Pandora" GUILTY beyond reasonable doubt of Violation of Section 5 of Republic Act No. 9165 (Illegal Sale of Dangerous Drug) and hereby imposes penalty of life imprisonment. The accused is likewise ordered to pay a fine of P500,000.00 and the costs. SO ORDERED.[6] Appellant filed an appeal alleging that the trial court erred in giving credence to the testimony of the arresting officers; and that the pre-operation orders and post operation reports regarding the buy-bust operation should have been presented in order to prove that the operation was validly conducted. Moreover, appellant argued that the prosecution failed to show that the qualitative examination of the specimen allegedly recovered from him was done and completed; that if the testimony of police officer Natividad that he gave the marked money to appellant during the entrapment operation is to be believed, then the police officers could not have presented the same in court during trial as it was with the appellant; and that Natividad was unsure whether he gave the money to appellant before or after receiving the plastic sachet. On September 17, 2007, the Court of Appeals rendered the assailed Decision, disposing thus: WHEREFORE, premises considered, the appeal is hereby DENIED and the assailed Decision dated January 12, 2004 rendered by the Regional Trial Court (RTC) of Urdaneta City, Branch 46, convicting accused-appellant in Criminal Case No. U-12462 is AFFIRMED. SO ORDERED.[7] The appellate court held that the testimonies of the police officers involved in a buy-bust operation deserve full faith and credit, given the presumption that they have performed their duties regularly; that the non-presentation of the pre-operation orders and post-operation results cannot exculpate appellant from criminal liability because the same do not affect the legality of the buy-bust operation; that the finding of Forensic Chemist Bessara that the substance recovered from appellant was "shabu" has not been overcome by convincing evidence and enjoys the presumption of regularity; and that the alleged inconsistencies in Natividad's testimony refer to minor details which did not affect the substance of the testimony. Hence the instant petition. On April 9, 2008, the Court directed the parties to file their supplemental briefs, if they so desire,

within 30 days from notice. On June 5, 2008, the Office of the Solicitor General manifested that it is no longer filing a supplemental brief. To date, appellant has not filed his supplemental brief; he is therefore deemed to have waived filing the same. Consequently, the case is deemed submitted for resolution. The petition lacks merit. The pertinent portion of Sec. 5, Art. II of Republic Act 9165 provides: 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. xxxx In the instant case, appellant is charged with selling "shabu," which is a dangerous drug. Section 3(ii), Art. I of Republic Act 9165 defines "selling" as "any act of giving away any dangerous drug and/or controlled precursor and essential chemical whether for money or any other consideration." To sustain a conviction under this provision, the prosecution needs to establish sufficiently the identity of the buyer, seller, object and consideration; and, the delivery of the thing sold and the payment thereof. What is material is proof that the transaction or sale actually took place, coupled with the presentation in court of the substance seized as evidence.[8] The commission of the offense of illegal sale of dangerous drugs requires merely the consummation of the selling transaction, which happens the moment the buyer receives the drug from the seller.[9] Settled is the rule that as long as the police officer went through the operation as a buyer and his offer was accepted by appellant and the dangerous drugs delivered to the former, the crime is considered consummated by the delivery of the goods.[10] In the instant case, the prosecution positively identified appellant as the seller of the substance which was found to be methamphetamine hydrochloride, a dangerous drug. Appellant sold the drug to the police officer who acted as buyer for a sum of P200.00. The heat-sealed transparent plastic sachet containing white crystalline substance presented before the trial court as Exhibit "B" was positively identified by PO1 Natividad as the shabu sold and delivered to him by appellant. The same heat-sealed transparent plastic sachet of white crystalline yielded positive for shabu as shown by Chemistry Report No. D-303-2002 dated October 30, 2002 prepared by Emelda Besarra-Roderos, PNP Forensic Chemist. Appellant's defense of denial is unavailing. He was caught in flagrante delicto in a legitimate entrapment operation and was positively identified by the police officers who conducted the operation. Mere denial cannot prevail over the positive testimony of a witness; it is a self-serving negative evidence which cannot be accorded greater evidentiary weight than the declaration of credible witnesses who testify on affirmative matters. As between the categorical testimony that rings of truth on one hand, and a bare denial on the other, the former is generally held to prevail.[11] As to the alleged inconsistencies in the testimony of PO1 Natividad, the same refer to minor and trivial matters which serve to strengthen, rather than destroy, the credibility of a witness.[12] Moreover, the non-presentation of pre-operation orders and post operation report is not fatal to the cause of the prosecution, because they are not indispensable in a buy-bust operation. What determines if there was, indeed, a sale of dangerous drugs is proof of the concurrence of all the elements of the offense; to wit: (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, which the prosecution has satisfactorily established. The prosecution satisfactorily proved the illegal sale of dangerous drugs and presented in court evidence of corpus delicti.[13] In cases involving violations of Dangerous Drugs Act, credence should be given to the narration of the incident by the prosecution witnesses especially when they are police officers who are

presumed to have performed their duties in a regular manner, unless there be evidence to the contrary. Moreover, in the absence of proof of motive to falsely impute such a serious crime against the appellant, the presumption of regularity in the performance of official duty, as well as the findings of the trial court on the credibility of witnesses, shall prevail over petitioner's self-serving and uncorroborated denial.[14] WHEREFORE, the petition is DENIED. The September 17, 2007 Decision of the Court of Appeals in CA-G.R. CR No. 02392, affirming the Decision of the Regional Trial Court of Urdaneta City, Branch 46, finding appellant Salvador Dumlao guilty of violation of Section 5, Article II of Republic Act 9165, and sentencing him to suffer the penalty of life imprisonment and to pay a fine of P500,000.00 and costs, is AFFIRMED. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 181747 Promulgated: September 26, 2008

Present: TINGA,* CHICO-NAZARIO, Acting Chairperson, VELASCO,* REYES and BRION,** JJ. PEOPLE OF THE PHILIPPINES, Plaintiff-appellee, - versus NARCISO AGULAY y LOPEZ, Accused-Appellant. x---------------------------------------------------x DECISION CHICO-NAZARIO, J.: For Review under Rule 45 of the Revised Rules of Court is the Decision1 dated 31 August 2007 of the Court of Appeals in CA-G.R. CR No. 01994 entitled, People of the Philippines v. Narciso Agulay y Lopez, affirming the Decision2 rendered by the Regional Trial Court (RTC) of Quezon City, Branch 103, in Criminal Case No. Q-02-111597, finding accused-appellant Narciso Agulay y Lopez guilty of illegal sale and illegal possession of methamphetamine hydrochloride more popularly known as "shabu." On 26 August 2002, accused-appellant was charged in an Information before the RTC of Quezon City with violation of Section 5, Article II of Republic Act No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002. The Information reads: That on or about the 24th day of August, 2002 in Quezon City, Philippines, the said accused, not being authorized by law to sell, dispense, deliver, transport or distribute any dangerous drug, did, then and there, willfully, and unlawfully sell, dispense, deliver, transport, distribute or act as broker in the said transaction, zero point twenty five (0.25) gram of methylamphetamine hydrochloride a dangerous drug.3 When arraigned on 23 September 2002, accused-appellant pleaded not guilty.4 Thereafter, trial ensued. During the trial, the prosecution presented the testimonies of Police Officer (PO) 2 Raul Herrera, the poseur-buyer, PO2 Reyno Riparip (member of the buy-bust team), and Forensic Analyst Leonard M. Jabonillo. The prosecutions version of the events are narrated as follows: On 24 August 2002, at around 6:30 in the evening, an informant arrived at Police Station 5 and reported to the Chief of the Station Drug Enforcement Unit (SDEU) that a certain "Sing" had been selling shabu at Brgy. Sta. Lucia, in Novaliches, Quezon City. A police entrapment team was formed. PO2 Herrera was assigned as poseur-buyer and was given a P100.00 bill, which he marked "RH," his initials. A pre-operation report bearing control No. 24-SDEU02 was made and signed by Police Inspector (P/Insp.) Palaleo Adag dated 24 August 2002. The buy-bust team rode in two vehicles, a Space Wagon and a Besta van, with a group of police officers inside. They stopped along J.P. Rizal St., Sta. Lucia, Novaliches, Quezon City. PO2 Herrera and his informant stepped down from their vehicle and walked. The informant pointed the target pusher to PO2 Herrera. They approached and after being introduced to Sing, PO2 Herrera

bought shabu using the marked P100.00 bill. Sing gave a small plastic sachet to PO2 Herrera who, thereafter, scratched his head as a signal. The other police companions of PO2 Herrera, who were deployed nearby, then rushed to the crime scene. PO2 Herrera grabbed Sing and then frisked him. PO2 Herrera recovered two (2) plastic sachets from Sings pocket. He also got the marked money from Sing. The following specimens were submitted to the Philippine National Police (PNP) Crime Laboratory of the Central Police District in Quezon City for chemical analysis: Three (3) heat-sealed transparent plastic sachets each containing white crystalline substance having the following markings and recorded net weights: (A) (RH1-RG1) = 0.07 gm (B) (RH2-RG2) = 0.09 gm (C) (RH3-RG3) = 0.09 gm5 Chemistry Report No. D-1020-2002 dated 25 August 2002 and prepared and presented in court by Forensic Analyst Leonard M. Jabonillo (of the PNP Crime Laboratory of the Central Police District of Quezon City) yielded the following results FINDINGS: Qualitative examination conducted on the above-stated specimens gave POSITIVE result to the test for Methylamphetamine Hydrochloride, a regulated drug. x x x. CONCLUSION: Specimen A, B and C contain Methylamphetamine Hydrochloride, a regulated drug.6 The defense, on the other hand, had an entirely different version of what transpired that night. It presented three witnesses: accused-appellant Narciso Agulay, Benjamin Agulay (brother of Narciso), and Bayani de Leon. Accused-appellant Narciso Agulay narrated that at around 8:30 to 9:00 oclock in the evening of 24 August 2002, he was manning his store when a car stopped in front of it. The passengers of said vehicle opened its window and poked a gun at him. The passengers alighted from the car, approached him and put handcuffs on him. Accused-appellant asked what violation he had committed or if they had a search warrant with them, but the arresting team just told him to go with them. Accused-appellant requested that he be brought to the barangay hall first, but this request was left unheeded. Instead, he was immediately brought to the police station. Upon reaching the police station, PO2 Herrera handed something to PO1 Riparip. Thereafter, PO2 Herrera and PO1 Riparip approached and punched him on the chest. They removed his shorts and showed him a plastic sachet. Later that night, the arresting officers placed him inside the detention cell. After about 30 minutes, PO1 Riparip and PO2 Herrera approached him. PO2 Herrera told him that if he would not be able to give them P50,000.00, they would file a case against him, to which he answered, "I could not do anything because I do not have money."7 Benjamin Agulay, brother of accused-appellant, testified that at around 8:30 to 9:00 oclock in the evening of 24 August 2002, while he was smoking in their compound, a group of armed men in civilian clothes entered the place and arrested his brother, who was then manning a store. He tried asking the arresting officers what the violation of accused-appellant was but he was ignored. They then took accused-appellant to the police station. On the other hand, the testimony of Bayani de Leon (a police asset of SPO1 Valdez of the buy-bust team) narrated that he, together with P/Insp. Suha, PO1 Herrera, PO2 Riparip, PO2 Gulferic and an arrested individual were on board a car while conducting a follow-up operation regarding a hold-up incident. When the car they were riding reached No. 51 J.P. Rizal Street, their team alighted and entered a compound. They saw accused-appellant and arrested him as he was allegedly involved in a hold-up incident, not with drug pushing. Accused-appellant was taken to Police Station 5.

On 17 February 2006, the RTC found accused-appellant guilty of the offense charged, and meted out to him the penalty of Life Imprisonment. The dispositive portion of the RTC Decision is as follows: Accordingly, judgment is rendered finding the accused NARCISO AGULAY Y LOPEZ GUILTY beyond reasonable doubt of the crime of violation of Section 5 of R.A. 9165 as charged (for drug pushing) and he is hereby sentenced to suffer a jail term of LIFE IMPRISONMENT and to pay a fine of P500,000.00. The methylamphetamine hydrochloride (in 3 sachets) involved in this case is ordered transmitted to the PDEA thru DDB for proper disposition.8 Accused-appellant filed his Notice of Appeal with Motion to Litigate as Pauper Litigant on 7 March 2006. Accused-appellant filed his appellants brief9 with the Court of Appeals on 22 September 2006. On 31 August 2007, the Court of Appeals issued its Decision denying accused-appellants appeal as follows: WHEREFORE, finding no reversible error in the Decision appealed from, the appeal is DENIED. The Decision of the RTC dated February 17, 2006 is AFFIRMED.10 Petitioner elevated the case to this Court via Notice of Appeal11 dated 21 September 2007. In its Resolution dated 2 April 2008, this Court resolved to: (3) Notify the parties that they may file their respective supplemental briefs, if they so desire, within thirty (30) days from notice. To avoid a repetition of the arguments, accused-appellant opted to adopt his appellants brief dated 22 September 2006 while plaintiff-appellee adopted its appellees brief dated 22 January 2007, instead of filing their respective supplemental briefs. The issues raised are the following: I. THE TRIAL COURT GRAVELY ERRED IN NOT FINDING THAT THE ACCUSED-APPELLANT WAS ILLEGALLY ARRESTED AND AS SUCH, THE SACHETS OF SHABU ALLEGEDLY RECOVERED FROM HIM ARE INADMISSIBLE IN EVIDENCE. II. THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME CHARGED. III. ACCUSED-APPELLANT CANNOT BE HELD LIABLE FOR THE CONSUMMATED CRIME OF ILLEGAL SALE OF SHABU BECAUSE OF THE FAILURE OF THE PROSECUTION TO ESTABLISH ALL OF ITS ESSENTIAL ELEMENTS. Accused-appellant maintains that his arrest was illegal, and that the subsequent seizure of shabu allegedly taken from him is inadmissible as evidence against him. He also claims that the prosecution failed to prove his guilt beyond reasonable doubt, since the prosecution failed to show all the essential elements of an illegal sale of shabu. From the foregoing issues raised by accused-appellant, the basic issue to be resolved hinges on whether accused-appellant was arrested in a legitimate "buy-bust" operation. The law presumes that an accused in a criminal prosecution is innocent until the contrary is proved. The presumption of innocence of an accused in a criminal case is a basic constitutional principle, fleshed out by procedural rules which place on the prosecution the burden of proving that an accused is guilty of the offense charged by proof beyond reasonable doubt. Whether the degree of

proof has been met is largely left for the trial courts to determine. Consistent with the rulings of this Court, it is a fundamental and settled rule that factual findings of the trial court and its calibration of the testimonies of the witnesses and its conclusions anchored on its findings are accorded by the appellate court high respect, if not conclusive effect, more so when affirmed by the Court of Appeals, as in this case. The exception is when it is established that the trial court ignored, overlooked, misconstrued or misinterpreted cogent facts and circumstances which, if considered, will change the outcome of the case. Considering that what is at stake here is the liberty of accused-appellant, we have carefully reviewed and evaluated the records of the RTC and the Court of Appeals. On evaluation of the records, this Court finds no justification to deviate from the lower courts findings and conclusion that accused-appellant was arrested in flagrante delicto selling shabu. In order to successfully prosecute an accused for illegal sale of drugs, the prosecution must be able to prove the following elements: (1) identities of the buyer and seller, the object, and the consideration; and (2) the delivery of the thing sold and the payment therefor.12 The testimonies of the prosecution witnesses proved that all the elements of the crime have been established: that the buy-bust operation took place, and that the shabu subject of the sale was brought to and identified in court. Moreover, PO2 Herrera, the poseur-buyer, positively identified accused-appellant as the person who sold to him the sachet containing the crystalline substance which was confirmed to be shabu.13 He narrated the events which took place the night accusedappellant was apprehended: FIS. JURADO: You said that you are stationed at Police Station 5, what were your duties there? WITNESS: As an operative sir. FIS. JURADO: What was your tour of duty on August 24, 2002? WITNESS: Broken hour sir. FIS. JURADO: But at around 6:30 in the evening, you are on duty? WITNESS: Yes, sir. FIS. JURADO: While you are on duty at that time and place, will you please inform this Honorable Court if there was an operation? WITNESS: Yes, sir. FIS JURADO: What is that operation all about? WITNESS: Buy bust operation sir. FIS. JURADO: Regarding what? WITNESS: Narcotic sir. FIS. JURADO: What is this all about? WITNESS: Alias Sing at Sta. Lucia sir. FIS. JURADO: How did you prepare for that buy-bust operation? WITNESS: An informant arrived and we reported to our Chief of SDEU and the Chief gave us P100.00 and I acted as poseur-buyer sir. FIS. MJURADO: Aside from that what else? WITNESS: I put my markings sir. FIS. JURADO: What is that markings (sic)? WITNESS: R.H. sir. FIS. JURADO: What is the significance of this R.H.? WITNESS: That mean(sic) Raul Herrera sir. FIS. JURADO: Do you have said money with you? WITNESS: Yes sir. FIS. JURADO: Will you please show that to this Honorable Court? WITNESS: Here sir. xxxx FIS. JURADO: After you prepared the buy bust money, what else did you do? WITNESS: We proceeded to the target location, sir. FIS. JURADO:

You said "we" who were with you? WITNESS: P/Insp. Addag, Rosario, SPO1 El Valdez, SPO2 Rey Valdez, Nogoy, Riparip and the confidential informant sir. FIS. JURADO: How did you proceed to the place of Sta. Lucia? WITNESS: We rode in a tinted vehicles (sic) one space wagon and Besta van, sir. FIS. JURADO: When you arrived in that place, what happened there? WITNESS: We asked our confidential informant to look for Sing, sir. FIS. JURADO: Did the confidential informant locate the said Sing? WITNESS: Yes sir along the street sir. FIS. JURADO: Where? WITNESS: J.P. Rizal St., Sta. Lucia, Novaliches, Quezon City, sir. FIS. JURADO: After your confidential informant found this Sing, what happened next? WITNESS: Our confidential informant asked me to go with him to see Sing to buy drug(s) sir. FIS. JURADO: Where is (sic) the transaction took (sic) place? WITNESS: Along the street sir. FIS. JURADO: What happened there? WITNESS: I was introduced by the confidential informant to Sing as buyer sir. FIS. JURADO: What happened next? WITNESS: I bought from him worth one hundred peso (sic) of shabu, sir. FIS. JURADO: What (sic) Sing do, if any? WITNESS: Sing gave me one small plastic sachet sir. FIS JURADO: After that what did you do next? WITNESS: I executed our pre-arranged signal sir. FIS. JURADO: For whom you executed this pre-arranged signal? WITNESS: To my companions sir. FIS. JURADO:

Where are (sic) your companions at that time? WITNESS: On board at (sic) Besta and Space Wagon sir. FIS. JURADO: What was the pre-arranged signal? WITNESS: I scratched my head sir. FIS. JURADO: After scratching your head, what happened next? WITNESS: My back-up rushed to our place, sir. FIS. JURADO: After that what did you do next? WITNESS: I grabbed Sing and arrested him sir. FIS. JURADO: How about the money? WITNESS: I recovered the buy bust money from Sing, sir. FIS. JURADO: You mentioned plastic sachet, I am showing to you three (3) plastic sachets, which of these three was taken or sold to you? WITNESS: This one sir. FIS. JURADO: How did you come to know that this is the one? WITNESS: I have my initial(sic) R.H. sir. xxxx FIS. JURADO: Aside from that, what happened next? WITNESS: When I frisked Sing, I was able to recover from him two (2) more plastic sachets sir. FIS. JURADO: Where did you get that plastic sachet? WITNESS: Right side pocket sir. FIS. JURADO: Short or pant? WITNESS: Short sir. FIS. JURADO: Where are these two plastic sachets that you are mentioning? WITNESS: Here sir. FIS. JURADO: How did you come to know that these are the two plastic sachets? WITNESS: I put my markings sir RH. xxxx COURT: After that what happened next? WITNESS: We brought him to our Police Station, sir. FIS. JURADO:

You mentioned Sing if this Sing is inside this courtroom, will you be able to identify him? WITNESS: Yes sir that man. INTERPRETER: Witness pointing to a man who identified himself as Narciso Agulay and his nickname is "Sing."14 His testimony was corroborated on material points by PO1 Riparip, one of the back-up operatives in the buy-bust operation that night, to wit: FIS. JURADO: You said that you are a police officer, where were you assigned on August 24, 2002? WITNESS: I was assigned at Police Station 5 for drug(sic) sir. FIS. JURADO: What was your tour of duty at that time? WITNESS: Broken hour sir. FIS. JURADO: You were on duty on August 24, 2002 at 6:30 in the evening? WITNESS: Yes sir. FIS. JURADO: What was your functions(sic) as such? WITNESS: To conduct follow up operation on drugs and other crimes sir. FIS. JURADO: Did you conduct operation on that day? WITNESS: Yes sir we conducted Narcotic operation sir. FIS. JURADO: You said you conducted narcotic operation, where?

WITNESS: Sta. Lucia, particularly at J.P. Rizal St., Novaliches, Quezon City, sir. FIS. JURADO: To whom this Narcotic operation conducted? WITNESS: To certain Alias Sing, sir. FIS. JURADO: Who were with you at that time? WITNESS: Valdez, Rosario, Herrera, Addag and other(sic) sir. FIS. JURADO: What was your participation in the said operation? WITNESS: I acted as back up sir. FIS. JURADO: As back up, what did you do? WITNESS: We position ourselves to a certain distance and where we can see the poseur-buyer sir. FIS. JURADO: Who was the poseur-buyer? WITNESS: Herrera sir. FIS. JURADO: What did you see? WITNESS: The poseur buyer executed the pre-arranged signal and we rushed to his position and arrested the target person Sing sir. FIS. JURADO: When we (sic) rushed to the target place what happened next? WITNESS: Herrera frisked Sing and we brought him to the police station sir.15

Accused-appellant contends his arrest was illegal, making the sachets of shabu allegedly recovered from him inadmissible in evidence. Accused-appellants claim is devoid of merit for it is a wellestablished rule that an arrest made after an entrapment operation does not require a warrant inasmuch as it is considered a valid "warrantless arrest," in line with the provisions of Rule 113, Section 5(a) of the Revised Rules of Court, to wit: Section 5. Arrest without warrant; when lawful. A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense. A buy-bust operation is a form of entrapment which in recent years has been accepted as a valid and effective mode of apprehending drug pushers. In a buy-bust operation, the idea to commit a crime originates from the offender, without anybody inducing or prodding him to commit the offense.16 If carried out with due regard for constitutional and legal safeguards, a buy-bust operation deserves judicial sanction.17

There are eight (8) instances when a warrantless search and seizure is valid, to wit: (1) consented searches; (2) as an incident to a lawful arrest; (3) searches of vessels and aircraft for violation of immigration, customs, and drug laws; (4) searches of moving vehicles; (5) searches of automobiles at borders or constructive borders; (6) where the prohibited articles are in "plain view;" (7) searches of buildings and premises to enforce fire, sanitary, and building regulations; and (8) "stop and frisk" operations. Considering that the legitimacy of the buy-bust operation is beyond question, the subsequent warrantless arrest and warrantless search and seizure, were permissible. The search, clearly being incident to a lawful arrest, needed no warrant for its validity. Thus, contrary to accused-appellant's contention, the contraband seized from him, having been obtained as a result of the buy-bust operation to which the defense failed to impute any irregularity, was correctly admitted in evidence. Noteworthy is the fact that prior to the dispatch of the entrapment team, a pre-operation report18 was made bearing Control No. 24-SDEU-02 dated 24 August 2005. The pre-operation report stated that an Anti-Narcotic Operation was to be conducted at Barangay Sta. Lucia in Novaliches, Quezon City, and indicated the police officers involved, including the vehicles to be used. This only bolsters the testimony of PO2 Herrera and PO1 Riparip as to the legitimacy of the buy-bust operation. The defense contends there is a clear doubt on whether the specimens examined by the chemist and eventually presented in court were the same specimens recovered from accused-appellant. The prosecutions failure to submit in evidence the required physical inventory and photograph of the evidence confiscated pursuant to Section 21,19 Article II of Republic Act No. 9165 will not discharge accused-appellant from his crime. Non-compliance with said section is not fatal and will not render an accuseds arrest illegal or the items seized/confiscated from him inadmissible. In People v. Del Monte,20 this Court held that what is of utmost importance is the preservation of the integrity and the evidentiary value of the seized items, as the same would be utilized in the determination of the guilt or innocence of the accused. In the instant case, we find the integrity of the drugs seized intact, and there is no doubt that the three sachets of drugs seized from accusedappellant were the same ones examined for chemical analysis, and that the crystalline substance contained therein was later on determined to be positive for methylamphetamine hydrochloride (shabu). The defense, in fact, admitted the existence and authenticity of the request for chemical analysis and the subsequent result thereof: FIS. JURADO: Chemist Engr. Jabonillo is present your honor. COURT: Any proposal for stipulation? FIS. JURADO: That there is letter request for examination of white crystalline substance marked as follows: A (pH1); B (pH2) and C (pH3)? ATTY. QUILAS: Admitted your honor. FIS. JURADO: As a result of the said qualitative examination chemist issued a chemistry report No. D1020-2002? ATTY. QUILAS: Admitted your honor. FIS. JURADO: In view of the admission your honor, may we request that Letter request dated August 25, 2002 be marked as Exhibit D and Chemistry Report No. D-1020-2002 as Exhibit E your honor. COURT: Mark it. In view of the presence of the Chemist, Engr. Jabonillo, He is being called to the witness stand for cross examination of the defense counsel.21 On cross-examination by the defense, Forensic Analyst Jabonillo stated that the drugs presented in court were the same drugs examined by him and submitted to him on 25 August 2002: ATTY. QUILAS: In this particular case, you received three plastic sachets? WITNESS: Yes sir. ATTY. QUILAS: When you receive these three plastic sachets were these already segregated or in one plastic container? WITNESS: I received it as is sir. xxxx ATTY. QUILAS:

How sure you were (sic) that three plastic sachet (sic) containing methylamphetamine hydrochloride were the same drug (sic) submitted to you on August 25, 2002. WITNESS: I personally place (sic) my marking sir. ATTY. QUILAS: You want to impress before this Honorable Court these were the same items that you received on August 25, 2002? WITNESS: Yes sir.22 On cross-examination by the defense, the same witness testified, to wit: ATTY. DE GUZMAN: I understand you are Chemical Engineer, am I correct? WITNESS: Yes, sir. ATTY. DE GUZMAN: And that you have been (sic) worked as a Chemist in the PNP for several years? WITNESS: Since March, 200 (sic), sir. ATTY. DE GUZMAN: What would be your practice when specimen submitted for you to examine, was it already pre-marked by the person who submit for examination? WITNESS: Normally, sir. ATTY. DE GUZMAN:

What do you mean normally, you also put the marking? WITNESS: Yes, sir. ATTY. DE GUZMAN: So everything has pre-mark? WITNESS: Yes, sir. ATTY. DE GUZMAN: And then when pre-mark specimen is submitted to you, you merely analyze the same is that correct? WITNESS: Yes, sir. ATTY. DE GUZMAN: And you do not change any marking there? WITNESS: Yes, sir. ATTY. DE GUZMAN: Now in the marking that we have it appearing that Exhibits A, B, and C are PH, am I correct? WITNESS: RH sir, not PH. ATTY. DE GUZMAN: Because it shows in the zerox (sic) copy that it is RH because of that slant. Now when this specimen was submitted to you was it three specimens submitted to you or only one specimen A, B, C were ranking to one? WITNESS: No sir, three (3) specimens.23

It is significant to note that accused-appellant stated in his demurrer to evidence that the specimens submitted for laboratory examination were not the three plastic sachets that were allegedly recovered by the poseur-buyer PO2 Raul Herrera, which may thus be construed to be an implied admission.24 Accused-appellants allegation that he is a victim of a frame-up, which has been held as a shopworn defense of those accused in drug-related cases, is viewed by the Court with disfavor. Like the defense of alibi, frame-up is an allegation that can easily be concocted.25 For this claim to prosper, the defense must adduce clear and convincing evidence to overcome the presumption of regularity of official acts of government officials.26 Absent any proof of motive to falsely accuse him of such a grave offense, the presumption of regularity in the performance of official duty and the findings of the trial court with respect to the credibility of witnesses shall prevail over that of the accusedappellant.27 Apart from his defense that he is a victim of a frame-up and extortion by the police officers, accused-appellant could not present any other viable defense. Again, while the presumption of regularity in the performance of official duty by law enforcement agents should not by itself prevail over the presumption of innocence, for the claim of frame-up to prosper, the defense must be able to present clear and convincing evidence to overcome this presumption of regularity. This, it failed to do. Bayani de Leons testimony that the accused was being taken as a carnapping suspect only further weakened the defense, considering it was totally out of sync with the testimony of accusedappellant vis--vis the positive testimonies of the police officers on the events that transpired on the night of 24 August 2002 when the buy-bust operation was conducted. It is also highly suspect

and unusual that accused-appellant never mentioned that he was taken as a carnapping suspect if indeed this were the case, considering it would have been his ticket to freedom. To recall, on direct examination by the defense counsel, Bayani de Leon testified as follows: ATTY. CONCEPCION: Mr. Witness, were you able to talk to Narciso Agulay that time he was arrested? WITNESS: Yes maam, when Narciso Agulay was put inside a room at Station 5 and in that room, I, Riparip and Herrera entered. ATTY. CONCEPCION: What was the conversation all about? WITNESS: He was being asked if he was one of those who held up a taxi maam. ATTY. CONCEPCION: What was the response of Narciso Agulay? WITNESS: Narciso Agulay was crying and at the same time denying that he was with that person. When we told him that the person we arrested with the firearm was pointing to him, he said that he does not know about that incident and he does not know also that person who pointed him maam.28 Witness Bayani de Leons testimony is dubious and lacks credence. From the testimony of Bayani de Leon, it is apparent that accused-appellant would necessarily have known what he was being arrested for, which was entirely inconsistent with accusedappellants previous testimony. Such inconsistency further diminished the credibility of the defense witness. It would seem that Bayani de Leons testimony was but a mere afterthought. Moreover, Bayani de Leon testified that he allegedly came to know of the fact that accused-appellant was being charged under Republic Act No. 9165 when he (Bayani de Leon) was also detained at the city jail for robbery with homicide, testifying as follows: FIS. ARAULA: And you only knew that Narciso Agulay was charged of Section 5, R.A. 9165 when you were detained at the City Jail? WITNESS: Yes sir. FIS. ARAULLA: In fact, you were talking with each other? WITNESS: Yes sir, and I asked what is the case filed against him. FIS. ARAULLA: And that is the time you know that Narciso Agulay was charged of (sic) Section 5? WITNESS: Yes sir.29

This Court, thus, is in agreement with the trial court in finding that: Bayani himself appears to be a shady character. By his admission he is a bata or agent of PO Vasquez. As far as the court knows, such characters are used by the police because they are underworld character (sic).30 Finally, the testimony of accused-appellants brother, Benjamin Agulay, is not convincing. Benjamin, being accused-appellants brother, we find him to be unreliable. Suffice it to say that, having been given by a relative of the accused-appellant, his testimony should be received with caution. On this premise, this Court has laid down the "objective" test in scrutinizing buy-bust operations. In People v. Doria,31 we said: We therefore stress that the "objective" test in buy-bust operations demands that the details of the purported transaction must be clearly and adequately shown. This must start from the initial contact between the poseur-buyer and the pusher, the offer to purchase, the promise or payment of the consideration until the consummation of the sale by the delivery of the illegal drug subject of the sale. The manner by which the initial contact was made, whether or not through an informant, the offer to purchase the drug, the payment of the "buy-bust" money, and the delivery of the illegal drug, whether to the informant alone or the police officer, must be the subject of strict scrutiny by courts to insure that law-abiding citizens are not unlawfully induced to commit an offense. x x x.

It bears to point out that prosecutions of cases for violation of the Dangerous Drugs Act arising from buy-bust operations largely depend on the credibility of the police officers who conducted the same, and unless clear and convincing evidence is proffered showing that the members of the buybust team were driven by any improper motive or were not properly performing their duty, their testimonies on the operation deserve full faith and credit.32 The law presumes that an accused in a criminal prosecution is innocent until the contrary is proved.33 This presumption of innocence of an accused in a criminal case is consistent with a most fundamental constitutional principle, fleshed out by procedural rules which place on the prosecution the burden of proving that an accused is guilty of the offense charged by proof beyond reasonable doubt. This constitutional guarantee is so essential that the framers of the constitution found it imperative to keep the provision from the old constitution to emphasize the primacy of rights that no person shall be held to answer for a criminal offense without due process of law.34 In his dissent, Justice Brion focused on the conviction that the buy-bust operation and the consequent seizure of the prohibited substance either did not take place or has not been proven beyond reasonable doubt because of a gap in the prosecutions evidence. Convinced that under the proven facts of the present case, the dissent maintains that the prosecution has not proven that a crime had been committed through proof beyond reasonable doubt -- that the three plastic sachets that were admitted into evidence during the trial were in fact the same items seized from the accused-appellant when he was arrested. The guilt of accused-appellant was established beyond reasonable doubt. Contrary to the dissents claim, the totality of the evidence would indicate that the sale of the prohibited drug had taken place, and that the sale was adequately established and the prosecution witnesses clearly identified accused-appellant as the offender. Moreover, the seized items, proven positive to be shabu, were properly identified and presented before the court. To reiterate, in prosecutions for illegal sale of regulated or prohibited drugs, conviction is proper if the following elements are present: (1) the identity of the buyer and the seller, the object, and the consideration; and (2) the delivery of the thing sold and the payment therefor. 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.35 The term corpus delicti means the actual commission by someone of the particular crime charged. The procedure for the custody and disposition of confiscated, seized and/or surrendered dangerous drugs, among others, is provided under Section 21 (a), paragraph 1 of Article II of Republic Act No. 9165, to wit: (a) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof; Section 21 (a), Article II of the Implementing Rules and Regulations of Republic Act No. 9165, which implements said provision, reads: (a) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof; Provided, further that non-compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officers/team, shall not render void and invalid such seizures of and custody over said items.

The above provision further states that non-compliance with the stipulated procedure, under justifiable grounds, shall not render void and invalid such seizures of and custody over said items, for as long as the integrity and evidentiary value of the seized items are properly preserved by the apprehending officers. The evident purpose of the procedure provided for is the preservation of the integrity and evidentiary value of the seized items, as the same would be utilized in the determination of the guilt of or innocence of the accused. On the chain of custody of the seized drugs The dissent agreed with accused-appellants assertion that the police operatives failed to comply with the proper procedure in the chain of custody of the seized drugs. It premised that noncompliance with the procedure in Section 21(a), Article II of the Implementing Rules and Regulations of Republic Act No. 9165 creates an irregularity and overcomes the presumption of regularity accorded police authorities in the performance of their official duties. This assumption is without merit. First, it must be made clear that in several cases[36] decided by the Court, failure by the buy-bust team to comply with said section did not prevent the presumption of regularity in the performance of duty from applying. Second, even prior to the enactment of R.A. 9165, the requirements contained in Section 21(a) were already there per Dangerous Drugs Board Regulation No. 3, Series of 1979. Despite the presence of such regulation and its non-compliance by the buy-bust team, the Court still applied such presumption.37 We held: The failure of the arresting police officers to comply with said DDB Regulation No. 3, Series of 1979 is a matter strictly between the Dangerous Drugs Board and the arresting officers and is totally irrelevant to the prosecution of the criminal case for the reason that the commission of the crime of illegal sale of a prohibited drug is considered consummated once the sale or transaction is established and the prosecution thereof is not undermined by the failure of the arresting officers to comply with the regulations of the Dangerous Drugs Board. While accused-appellant contends in his appellants brief that the police operatives did not submit the required inventory of the seized items pursuant to the provisions of Section 21 (a), Article II of the Implementing Rules and Regulations of Republic Act No. 9165, the records belie this claim. On cross-examination by the defense, Police Officer (PO) 2 Herrera testified on making an inventory of the seized items. PO2 Herrera testified as follows: Q: When you arrested the suspect in this case, you confiscated two (2) items from him? A: Yes sir. Q: And you said that it is part of your procedure when you confiscated items from the suspect you made an inventory of the item confiscated? A: Yes sir. Q: Did you make inventory of the confiscated items? A: Yes sir it is with the police investigator.38 Moreover, non-compliance with the procedure outlined in Section 21(a), Article II of the Implementing Rules and Regulations of Republic Act No. 9165, shall not render void and invalid such seizures of and custody over said items, for as long as the integrity and evidentiary value of the seized items are properly preserved by the apprehending officers. Consistent with this Courts pronouncements in People v. Bano39 and in People v. Miranda,40 contrary to appellants claim, there is no showing of a broken chain in the custody of the seized items, later on determined to be shabu, from the moment of its seizure by the entrapment team, to the investigating officer, to the time it was brought to the forensic chemist at the PNP Crime Laboratory for laboratory examination. It was duly established by documentary, testimonial, and object evidence, including the markings on the plastic sachets containing the shabu that the substance tested by the forensic chemist, whose laboratory tests were well-documented, was the same as that taken from accused-appellant.

The records of the case indicate that after his arrest, accused-appellant was taken to the police station and turned over to the police investigator. PO2 Herrera testified that he personally41 made the markings "RH" (representing his initials) on the three sachets, the inventory42 of which was delivered to the police investigator. After the arrest, the seized items which had the markings "RH" alleged to contain shabu were brought to the crime laboratory for examination.43 The request for laboratory examination and transfer of the confiscated sachets to the PNP crime laboratory was prepared by another officer, PO2 Gulferic, the designated officer-on-case.44 It was signed as well by the Chief of Office/Agency (SDEU/SIIB) Police Chief Inspector Leslie Castillo Castillo. The request indicated that the seized items were delivered by PO2 Gulferic and received by Forensic Chemist Jabonillo.45 The three heat-sealed transparent plastic sachets each containing white crystalline substance were later on determined to be positive for Methylamphetamine Hydrochloride or shabu. When the prosecution presented the marked sachets in court, PO2 Herrera positively identified the plastic sachets containing shabu which he bought from accused-appellant in the buy-bust operation. The sachets containing shabu had the markings "RH" as testified by Forensic Chemist Jabonillo. PO2 Herrera positively identified in court that he put his initials "RH" on the sachets. Thus, the identity of the drugs has been duly preserved and established by the prosecution. Besides, the integrity of the evidence is presumed to be preserved unless there is a showing of bad faith, ill will, or proof that the evidence has been tampered with. The accused-appellant in this case bears the burden to make some showing that the evidence was tampered or meddled with to overcome a presumption of regularity in the handling of exhibits by public officers and a presumption that public officers properly discharged their duties.46 PO2 Herrera identified the sachets in court, and more importantly, accused-appellant had the opportunity to cross-examine him on this point. This Court, thus, sees no doubt that the sachets marked "RH" submitted for laboratory examination and which were later on found to be positive for shabu, were the same ones sold by accusedappellant to the poseur-buyer PO2 Herrera during the buy-bust operation. There is no question, therefore, that the identity of the prohibited drug in this case was certainly safeguarded. The dissent maintains that the chain of custody rule "would include testimony about every link in the chain, from the moment the item was picked up to the time it is offered into evidence x x x." This means that all persons who came into contact with the seized drugs should testify in court; otherwise, the unbroken chain of custody would not be established. We disagree. Not all people who came into contact with the seized drugs are required to testify in court. There is nothing in the New Drugs Law or in any rule implementing the same that imposes such a requirement. As long as the chain of custody of the seized substance was clearly established not to have been broken and that the prosecution did not fail to identify properly the drugs seized, it is not indispensable that each and every person who came into possession of the drugs should take the witness stand. In People v. Zeng Hua Dian,47 we held: After a thorough review of the records of this case, we find that the chain of custody of the seized substance was not broken and that the prosecution did not fail to identify properly the drugs seized in this case. The non-presentation of witnesses of other persons such as SPO1 Grafia, the evidence custodian, and PO3 Alamia, the officer on duty, is not a crucial point against the prosecution. The matter of presentation of witneses by the prosecution is not for the court to decide. The prosecution has the discretion as to how to present its case and it has the right to choose whom it wishes to present as witnesses. In connection with this, it must not be forgotten that entries in official records made by a public officer in the performance of his duty are prima facie evidence of the facts therein stated.48 If it is now a requirement that all persons who came into contact with the seized drugs should testify in court, what will now happen to those public officers (e.g., person who issued request for examination of drugs or those who tested the drugs) who issued documents regarding the seized drugs? Shall they be obligated to testify despite the fact the entries in the documents they issued are prima facie evidence of the facts therein stated? We do not think so. Unless there is proof to the contrary, the entries in the documents are prima facie evidence of the facts therein stated and they need not testify thereon.

The dissenting opinion likewise faults the prosecution for failing to disclose the identity of the person who submitted the item that was examined. The answer to this question can easily be seen from the stamp made in the request for drug analysis. There being no question by the accused on this matter, the entry thereon made by the public officer is definitely sufficient, same being an entry in official records. On the credibility of the witnesses Prosecutions involving illegal drugs depend largely on the credibility of the police officers who conduct the "buy-bust" operation.49 In cases involving violations of the Dangerous Drugs Law, appellate courts tend to heavily rely upon the trial court in assessing the credibility of witnesses, as it had the unique opportunity, denied to the appellate courts, to observe the witnesses and to note their demeanor, conduct, and attitude under direct and cross-examination.50 This Court, not being a trier of facts itself, relies in good part on the assessment and evaluation by the trial court of the evidence, particularly the attestations of the witnesses, presented to it.51 Thus, this Court will not interfere with the trial courts assessment of the credibility of witnesses considering there is nothing on record that shows some fact or circumstance of weight and influence which the trial court has overlooked, misappreciated, or misinterpreted. Unless compelling reasons are shown otherwise, this Court, not being a trier of facts itself, relies in good part on the assessment and evaluation by the trial court of the evidence, particularly the attestations of witnesses, presented to it. As this Court has held in a long line of cases, the trial court is in a better position to decide the question, having heard the witnesses themselves and observed their deportment and manner of testifying during the trial. Accused-appellant casts suspicion on the means or methods by which the police officers conducted the operation and claims to be the victim of a frame-up. According to accused-appellant, the trial court relied heavily on the police officers testimonies that what had actually transpired was a buybust operation, which resulted in his arrest. In almost every case involving a buy-bust operation, the accused put up the defense of frame-up. Such claim is viewed with disfavor, because it can easily be feigned and fabricated. In People v. Uy, the Court reiterated its position on the matter, to wit: We are not unaware that in some instances law enforcers resort to the practice of planting evidence to extract information or even to harass civilians. However, like alibi, frame-up is a defense that has been invariably viewed by the Court with disfavor as it can easily be concocted [and] hence commonly used as a standard line of defense in most prosecutions arising from violations of the Dangerous Drugs Act. We realize the disastrous consequences on the enforcement of law and order, not to mention the well being of society, if the courts x x x accept in every instance this form of defense which can be so easily fabricated. It is precisely for this reason that the legal presumption that official duty has been regularly performed exists. x x x 52 In the case at bar, the testimonies of the prosecution witnesses are positive and convincing, sufficient to sustain the finding of the trial court and the Court of Appeals that accused-appellants guilt had been established beyond reasonable doubt. First, the testimony of PO2 Raul Herrera was spontaneous, straightforward and categorical. Second, PO1 Reyno Riparip, the back-up police operative of PO2 Herrera, corroborated the latters testimony on material points. Appellants defense of frame-up and self-serving assertion that he was mistakenly picked up by the police operatives for a carnapping case cannot prevail over the positive and straight-forward testimonies of the police operatives who have performed their duties regularly and in accordance with law, and have not been shown to have been inspired by any improper motive or to have improperly performed their duty.53 To reiterate, Bayani de Leons testimony that the accused was being taken as a carnapping suspect only further weakened the defense, considering it was totally out of sync with the testimony of accused-appellant vis--vis the positive testimonies of the police officers on the events that transpired on the night of 24 August 2002 when the buy-bust operation was conducted.

The arrest of accused-appellant was made in the course of an entrapment, following a surveillance operation, normally performed by police officers in the apprehension of violators of the Dangerous Drugs Act. The Court so holds that in the absence of proof of any odious intent on the part of the police operatives to falsely impute such a serious crime, as the one imputed against accused-appellant, it will not allow their testimonies to be overcome by the self-serving claim of frame-up. Even assuming arguendo that the presumption of regularity in the performance of official duty has been overcome because of failure to comply with Section 21(a), same will not automatically lead to the exoneration of the accused. Said presumption is not the sole basis for the conviction of the accused. His conviction was based not solely on said presumption but on the documentary and real evidence, and more importantly, on the oral evidence by prosecution witnesses whom we found to be credible. It is to noted that one witness is sufficient to prove the corpus delicti that there was a consummated sale between the poseur buyer and the accused -- there being no quantum of proof as to the number of witnesses to prove the same. In the case at bar, the selling of drugs by accused was established. The dissent likewise argues that the ponencia cannot impose on the defense the burden of proving that the police had an improper motive in charging him because of the absence of the presumption of regularity. We find this untenable. It is settled that if the testimonies of the prosecution witnesses are not impugned, full faith and credit shall be accorded them. One impugns the testimony of witness during cross-examination. Did the defense satisfactorily impugn the testimonies of the prosecution witnesses when he said that he was a victim of hulidap and that the policemen were extorting money from him? Said declaration is definitely not sufficient to impugn the testimonies of the prosecution witnesses. His mere say so that he was victimized without clear and convincing evidence to support such claim does not suffice. If what he claims was indeed committed by the policemen, he should have sued or charged them. This, he did not do. Such inaction runs counter to the normal human conduct and behavior of one who feels truly aggrieved by the act complained of.54 From the foregoing, We are fully convinced that the accused is guilty as charged. We thus hold that accused-appellants guilt has been established beyond reasonable doubt. This Court shall now determine the proper penalties to be imposed on him. An examination of the Information reveals that accused-appellant was charged with the unauthorized sale and delivery of dangerous drugs consisting of twenty-five hundredths (0.25) gram of methylamphetamine hydrochloride (shabu). From the testimonies of the prosecution witnesses, only one sachet55 was sold and delivered to the poseur-buyer, PO2 Herrera. The two other sachets56 were not sold or delivered, but were found by PO2 Herrera inside the right pocket of accused-appellants pair of shorts upon frisking, after the latter was caught in flagrante delicto during the buy-bust operation. Accused-appellant could have been charged with the possession of dangerous drugs57 on account of the second and third sachets. This was not done. He cannot then be convicted of possession of dangerous drugs, without being properly charged therewith, even if proved. Accused-appellant, however, is still guilty, as charged in the Information, of selling and delivering one sachet to the poseur-buyer. Under Republic Act No. 9165, the unauthorized sale of shabu carries with it the penalty of life imprisonment to death and a fine ranging from Five Hundred Thousand Pesos (P500,000.00) to Ten Million Pesos (P10,000,000.00). Pursuant, however, to the enactment of Republic Act No. 9346 entitled, "An Act Prohibiting the Imposition of Death Penalty in the Philippines," only life imprisonment and fine, instead of death, shall be imposed.

We, therefore, find the penalty imposed by the trial court, as affirmed by the Court of Appeals life imprisonment and a fine of P500,000.00 to be proper. WHEREFORE, premises considered, the Court of Appeals Decision in CA-G.R. CR No. 01994 dated 31 August 2007 is AFFIRMED. SO ORDERED.

THIRD DIVISION [G.R. No. 177237, October 17, 2008] WILLIAM CHING, PETITIONER, VS. PEOPLE OF THE PHILIPPINES, RESPONDENT. DECISION CHICO-NAZARIO, J.: This petition for review on certiorari under Rule 45 of the Rules of Court assails the Decision[1] of the Court of Appeals dated 27 March 2007 in CA G.R. CR HC No. 00945 which affirmed in toto the 19 January 2004 Decision[2] of the Regional Trial Court (RTC) of Manila, Branch 27, finding petitioner William Ching, alias Willy (Ching), guilty of violation of Section 15, Article III of Republic Act No. 6425, as amended, otherwise known as the Dangerous Drugs Act of 1972. On 21 October 1999, petitioner was charged before the RTC with violating Section 15, Article III of Republic Act No. 6425 in Criminal Case No. 98-168211. The accusatory portion of the Information reads: "That on or about October 19, 1998, at Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, a foreign national from Amoy, China but married to a Filipina with two children, and not being authorized by law to do so, did, then and there, willfully, unlawfully and feloniously sell and deliver to a NARGROUP "poseur-buyer" some 3,076.28 grams of Methamphetamine Hydrochloride, a regulated drug commonly known as "SHABU," in violation of the above-cited law."[3] When arraigned on 24 November 1998, petitioner pleaded not guilty. Thereafter, trial ensued. The prosecution presented the following witnesses: (1) Senior Police Officer (SPO)1 Alfredo F. Cadoy (SPO1 Cadoy), the designated poseur-buyer of the team; (2) SPO1 Ruben M. Bernardo (SPO1 Bernardo), a member of the team who was specifically tasked to back-up SPO1 Cadoy; (3) Marilyn D. Dequito, the forensic chemist of the Philippine National Police (PNP) Crime Laboratory Office who examined the substance allegedly confiscated from Ching. As documentary evidence, the prosecution offered the following: Exhibit "A" - Request for Laboratory Examination dated 20 October 1998 addressed to the PNP Crime Laboratory, Camp Crame of the three heat-sealed transparent plastic bags allegedly confiscated from Ching containing white crystalline substance suspected to be "shabu" and weighing approximately one kilogram each; Exhibit "B" - Initial Laboratory Report dated 20 October 1998 of the confiscated crystalline substance; Exhibit "C" - Final Report dated 20 October 1998 of the confiscated items;

Exhibit "D" - Request for Physical/Medical Examination of Ching; Exhibits "E" to "K" - The seven one thousand peso-bills used in the buy-bust operation; Exhibit "L" - Booking Sheet and Arrest Report of Ching; Exhibit "M" - Affidavit of Arrest of Ching signed by SPO1 Cadoy and SPO1 Bernardo; Exhibit "N" - Letter to the Inquest Prosecutor dated 20 October 1998; Exhibit "O" - Green Plastic Bag bearing the name Prudential Bank, where the three heat-sealed transparent plastic bags containing white crystalline substance suspected to be "shabu" were kept; Exhibits "P" to "R" - the three transparent plastic bags containing white crystalline substance; Exhibit "S" - Sketch Drawn by SPO1 Cadoy of the Location of the Buy-Bust Operation; Exhibit "T" - Original Copy Booking Sheet and Arrest Report of Ching. The collective evidence adduced by the prosecution shows that at around 12:00 o'clock noon on 19 October 1998, while Police Chief Leonardo Suan was in his office at Camp Crame, Quezon City, he received information from a confidential informant about a drug deal to be consummated by the latter with petitioner Ching.[4] Police Chief Suan immediately assembled a team to conduct a buybust operation composed of Inspector Arsenal, SPO1 Cadoy, SPO1 Bernardo, SPO1 de los Santos, PO1 Velasquez and PO2 San Jose.[5] SPO1 Cadoy was designated as the poseur-buyer, while SPO1 Bernardo was assigned as one of the back-ups of the former.[6] Seven pieces of genuine one thousand-peso bills were prepared as marked money. The said bills were placed over the boodle money in an attach case.[7] After the briefing, at about 1:00 p.m., the team on board three vehicles proceeded to the vicinity of the target area, a gasoline station along San Fernando Street, Binondo, Manila. The group arrived at the target place at around 2:00 p.m., and positioned themselves in different strategic locations.[8] The confidential informant alighted from the vehicle and walked towards San Fernando Street. [9] When the informant returned, he was accompanied by Ching who was carrying with him a green bag bearing the name Prudential Bank.[10] The confidential informant introduced SPO1 Cadoy to Ching and told the latter that the former wanted to buy shabu.[11] At once, Ching requested to see the money. SPO1 Cadoy showed the money inside the attach case. After seeing the money, Ching handed the green bag to SPO1 Cadoy saying "Ito na ang tatlong kilo."[12] SPO1 inspected the contents of the green bag which contained three plastic packs of white crystalline substance. Convinced that the white crystalline substances were illegal drugs, SPO1 Cadoy handed the attach case to Ching.[13] As soon as the money was in Ching's possession, SPO1 Cadoy executed the pre-arranged signal by removing his hat.[14]SPO1 Cadoy introduced himself to Ching as a NARCOM agent, while the other members of the team rushed toward them and likewise introduced themselves to Ching as policemen and then SPO1 Cadoy and his team arrested William Ching. [15] SPO1 Bernardo retrieved from Ching the marked money while SPO1 Cadoy marked the plastic packs containing white crystalline substance with "AFC," his initials. The arresting officers brought Ching to Camp Crame where he was subjected to custodial investigation. During the investigation, the arresting officers prepared the Affidavit of Arrest, Booking Sheet and Arrest Report, Request for Laboratory Examination, Request for Physical/Medical Examination and Referral to the Inquest Prosecutor. The three heat-sealed transparent plastic bags with the initials of SPO1 Cadoy were referred to the PNP Crime Laboratory Office for examination. Upon examination by Chemical Officer Marilyn D. Dequito of the contents of the plastic bags, she found that the same weighed 3,076.26 and was tested positive for methamphetamine hydrochloride or "shabu." The findings of Chemical Officer Marilyn D. Dequito, which are embodied in Physical Sciences Report No. D 3415-98 dated 20 October 1998, read: AExh "A" One (1) heat sealed transparent plastic bag marked AFC containing 1013.16 of white crystalline substance. BExh "B" One (1) heat sealed transparent plastic bag marked AFC containing 1026.5 g of white crystalline substance. CExh "C" One (1) heat sealed transparent plastic bag marked AFC containing 1036.6 g of white crystalline substance. PURPOSE LABORATORY EXAMINATION: To determine the presence of prohibited and/or regulated drug.

FINDINGS: Qualitative examination conducted on the above-stated specimen gave POSITIVE results for the presence of methamphetamine hydrochloride, a regulated drug. CONCLUSION: Specimens A, B and C contain methamphetamine hydrochloride, a regulated drug.[16] The defense, on the other hand, put up the defense of denial and frame-up. To support this thesis, the defense presented petitioner and seven other witnesses, namely: (1) Li Ali (Ali), 17- year old niece of Ching; (2) Chuang Li Fun (Fun), Ching's sister and mother of witnesses Li Ali and Li Jia Wang. Fun resides in No. 488, Pearanda Street, Binondo, Manila, where Ching was allegedly illegally arrested; (3) Li Jia Wang (Wang), the 13- year old nephew of Ching who was his companion when he was arrested by the police officers; (4) Eduardo B. Peralta, a pedicab driver plying the route of Pearanda Street, Binondo, who allegedly saw Ching being dragged from the apartment by three men to an FX van; (5) Rafael A. Cantollas, utility boy of Ching; (6) Rosita C. Malait, a vendor whose place of business is across the apartment of Ching's sister; (7) Criselda E. Estrella, a housemaid residing in the same apartment and floor where Ching was allegedly arrested by the police officers. From the testimonies of the defense witnesses, the defense's version of the incident is that on 19 October 1998, Ching stayed at his sister's apartment situated at No. 488, Pearanda St., Binondo, Manila. Ching was accompanied by his nephew Wang, his niece Ali, and his sister, Fun. At around 12:00 noon of the said day, Fun and Ali left the apartment to visit a granduncle who resides in Nueva St., Ongpin, Manila. Ching and Wang were left behind. Ching was reading a book, clad only with a T-shirt and short pants while Wang was watching TV. At about 2:00 p.m., somebody knocked at the door. Ching opened the door where he saw six or seven men in civilian clothes, whom he later discovered as policemen. One of the men asked him if he is William Ching. When Ching answered that he is William Ching, two of the men grabbed him by the arm and dragged him downstairs to an FX van parked at the corner of Pearanda and San Fernando Streets, Binondo, Manila. Ching was shoved to the back of the vehicle where he was manacled and blindfolded. A plastic bag was also placed over his head. While the vehicle was moving, his abductors demanded 10 million pesos from Ching and when he answered that he did not have such amount, he was mauled and threatened that he will be killed. After sometime, the vehicle stopped infront of a police station. He was brought to a small room where the men who seized him reiterated their demand for money. When he replied that he did not have said amount, he was again mauled and then his private part was electrocuted. When Ching could no longer bear the torture, he asked that he be allowed to call his sister. Because he insisted that he cannot grant their demand, his abductors took out three packages and told him that the same were taken from him and then he was made to sign a document. Meanwhile three or four of the policemen remained in the apartment unit and made a warrantless search. The officers were still searching the room when Fun and Ali arrived. Fun tried to drive away the police officers who flashed their police identification cards. Later, Fun received a call from Ching, informing her that he was arrested. After the defense had rested its case, the prosecution, on rebuttal, offered the oral testimonies of Police Inspector Ramon B. Arsenal (Inspector Arsenal), Police Chief Inspector Leonardo Suan (Police Chief Suan) and SPO1 Cadoy to rebut the claim of the defense that the team arrested Ching in his sister's apartment and that the buy-bust operation was a mere fabrication. Inspector Arsenal, a police officer assigned at the Special Operations Division, Narcotics Group, PNP and a member of the team that conducted the purported buy-bust operation against Ching, testified that the buy-bust operation conducted at a gas station in San Fernando Street, Binondo, Manila on 19 October 1998, was pursuant to an information from a confidential informant. He stated that after the team was briefed by Police Chief Suan of the planned buy-bust operation, the team left for the target area on board four vehicles, namely: Tamaraw FX, a red Toyota Corolla, a white Toyota Corolla and a Lancer. He said that the confidential informant and the poseur-buyer boarded the Tamaraw FX. He arrived at the vicinity of the gas station at around 1:45 p.m. where he saw the confidential informant alight from the Tamaraw FX and walk towards San Fernando Street. Minutes later, the informant returned with Ching. He admitted that he did not see the actual exchange of shabu with the money; however, he saw the actual arrest of Ching. He denied that

Ching was taken from the apartment unit in Pearanda Street. Inspector Arsenal, however, clarified that after Ching was arrested at the gasoline station in San Fernando Street, the team brought him to the corner of Pearanda and San Fernando Streets because he told them that the source of the shabu, a certain William Sy, will get the money at that place. He also denied the allegation that the team tortured and demanded P10 million from Ching. Police Chief Suan, for his part, declared that he received information from alias "Ricky" regarding a drug deal with Ching. After receiving the information, he formed a team to conduct a buy-bust operation and the designated poseur-buyer was SPO1 Cadoy, with SPO1 Bernardo as back-up. He gave seven pieces of genuine one thousand-peso bill to be used as the marked money. It was also agreed in the briefing that the pre-arranged signal to indicate that the exchange of illegal drugs and money is consummated was for the poseur-buyer to remove his hat. After the briefing, he instructed Inspector Arsenal to lead the team to the target place near San Fernando Street, Binondo, Manila. He proceeded to the agreed place using his own car. He arrived at the vicinity and positioned himself near the Binondo Church. Since his position is far from the target area, he monitored the operation through a radio. At about 2:00 p.m., he was informed that the operation was consummated. He was told to wait for a while since the arresting team would go to the corner of Pearanda and San Fernado Streets to wait for the source of the shabu. He was then informed that the source did not show up, so he ordered the team to proceed to Camp Crame. SPO1 Cadoy, clarified that he failed to mention the street where the buy-bust operation took place because he was not familiar with the name of the streets in that place. He likewise contradicted the defense's version that the team took Ching from the apartment in No. 488, Pearanda Street. He insisted that there was a buy-bust operation conducted on the day in question. On rebuttal, the prosecution presented the following documentary evidence: (1) Exhibit "A" Rebuttal, a judgment of the RTC Quezon City, Branch 79, finding Ching guilty for selling methamphetamine hydrochloride in violation of Section 15, Article III of R.A. 6425 to prove that Ching is a recidivist; (2) Exhibit "B" Rebuttal, a Sketch drawn by Inspector Arsenal of the place of the buy-bust operation. On 28 September 2001, the RTC rendered a decision finding Ching guilty of the crime charged. In the decision, the RTC appreciated the aggravating circumstance of recidivism. With this, the supreme penalty of death was imposed against Ching. On 5 October 2001, Ching filed Motions for Reconsideration/Re-opening of Proceedings. A Supplement to Motions for Reconsideration/Re-opening of Proceedings dated 15 October 2001 was also filed by Ching. The RTC denied the motion for reconsideration in an order dated 11 April 2002. However, the RTC, to avoid miscarriage of justice, granted the re-opening of the proceedings to allow Ching to adduce sur-rebuttal evidence. On sur-rebuttal, the defense did not present any witness. It merely submitted certifications from the clerks of courts of Bacoor and Imus, Cavite, certifying that there is no Branch 197 in the RTC of Cavite, nor was there a drug case entitled"People v. Lares" in any of the branches in any of the RTC branches in Bacoor and Imus. It must be noted that during cross-examination, SPO1 Cadoy was confused as to whether it was his team or Ching that arrived first at the target place. SPO1 Cadoy explained this confusion, saying that he just came from Cavite where he also testified in a drug case in which he was also the poseur buyer and the buy-bust operation in that case also took place near a gasoline station. These certifications were presented to destroy SPO1 Cadoy's credibility to prove that he was lying when he said that he testified in another drug case in Cavite, since no such case exists in the courts of the said place. In a decision dated 19 January 2004, the RTC rendered a decision convicting Ching of the crime charged and sentenced him to reclusion perpetua. This time the RTC did not appreciate the presence of recidivism since the same was not alleged in the information. The dispositive portion of the decision reads: WHEREFORE, IN VIEW OF ALL THE FOREGOING, the Court finds accused WILLIAM CHING a.k.a. "WILLY", "GUILTY", beyond reasonable doubt of the crime of Violation of Section 15, Article III,

Republic Act 6425, as amended by RA 7659 and considering that neither mitigating nor aggravating circumstance is attendant in the commission thereof, hereby sentences him [to] Reclusion Perpetua and to pay a fine of Three Million (P3,000,000.00) Pesos. The subject shabu, (Exhs. "P", "Q" and "R") are ordered turned over to the Philippine Drug Enforcement Agency for proper disposition.[17] Dissatisfied, Ching directly elevated his conviction to this Court for review. This Court, however, referred the case to the Court of Appeals for intermediate review, conformably with the ruling in People v. Mateo.[18] The Court of Appeals, on 27 March 2007, promulgated its Decision affirming the in toto the decision of the RTC in convicting Ching of the crime charged. The dispositive part of the decision provides: WHEREFORE, premises considered, the appealed Decision of the court a quo is hereby AFFIRMED in toto.[19] Hence, the instant petition. In his Memorandum, Ching raises the following issues: I Whether The Arrest Of The Petitioner Was Illegal. II Whether The Search Conducted On the Premises Is Illegal. III Whether The Buy-Bust Operation Against The Petitioner Was A Sham.[20] Ching faults the RTC and the Court of Appeals for not giving credence to his version of what happened on the day in question. He vigorously insists that on the day he was arrested, a group of men swooped down upon him and dragged him from his sister's apartment unit and took him to a vehicle where his captors demanded a huge amount of money from him, and after his refusal to heed to their demands, he was tortured and his captors planted evidence against him. Without the said buy-bust or entrapment operation, there was no valid basis for his warrantless arrest. Hence, the operatives violated his constitutional right against warrantless arrest. He also claims that the search done in the apartment unit was illegal since such was effected following an illegal arrest. Ching finds the buy-bust incredulous, as an illegal transaction such as sale of shabu could not have been done in a crowded place and during busy hours of the day. Thus, the charge was fabricated by the police officers. In the main, petitioner wants this Court to evaluate the credibility of the prosecution witnesses visa-vis defense witnesses. It has often been said, however, that credibility of witnesses is a matter best examined by, and left to, the trial courts. [21] The time-tested doctrine is that the matter of assigning values to declarations on the witness stand is best and most competently performed by the trial judge who, unlike appellate magistrates, can weigh such testimony in light of the declarant's demeanor, conduct and position to discriminate between truth and falsehood.[22] Thus, appellate courts will not disturb the credence, or lack of it, accorded by the trial court to the testimonies of witnesses. [23] This is especially true when the trial court's findings have been affirmed by the appellate court, because said findings are generally conclusive and binding upon this Court unless it be manifestly shown that the latter court had overlooked or disregarded arbitrarily the facts and circumstances of significance in the case.[24] However, in view of the fact that at stake here is no less than the liberty of appellant, this Court thoroughly examined the entire records of this case and scrutinized the testimonies and the pieces of documentary evidence tendered by both parties and observed them at close range. Regrettably for Ching, this Court failed to identify any error committed by the RTC and the Court of Appeals both in their respective appreciation of the evidence presented before them and in the conclusion they arrived at.

In the prosecution of sale of dangerous drugs, the concurrence of all the following elements must concur: (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. 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] In the instant case, all the elements of the crime have been sufficiently established by the prosecution. The witnesses for the prosecution were able to prove that the buy-bust operation indeed took place and the shabu subject of the sale was brought and duly identified in court. The poseur-buyer (SPO1 Cadoy) positively identified Ching as the one who sold to him the three plastic bags of shabu. SPO1 Cadoy straightforwardly narrated the circumstances leading to the consummation of the sale of illegal drugs and the arrest of Ching: Q: After arriving at around 2:00 p.m., at A: We had a previous agreement, your San Fernando St., Binondo, Manila, Honor, that three (3) kilos of shabu will what happened, if any, Mr. Witness? be bought from him. xxx. A: When we arrived at San Fernando St., we saw alias Willy. I was introduced to COURT Who made that previous arrangement? him by the informant as the one who : will buy shabu. A: The informant who talked with him earlier, your Honor. Q: How many minutes were you there when you were introduced to this alias xxxx Willy? Before you were introduced, how many minutes were you there at Q: After you had shown the buy-bust the place? money to alias Willy, what did Alias A: For a while only Sir, because when we Willy do, if any? arrived, Alias Willy was already there A: After I had shown the buy-bust money waiting for us, Sir. to Alias Willy and he was convinced, then, he handed to me, stating "eto na Q: Where were you introduced? In what ang tatlong (3) kilo." specific location, at San Fernando St.? A: At the side of a gasoline station along xxxx San Fernando St. Q: You said, he handed the bag to you. xxxx Isn't it? Q: A: Q: A: And was he carrying something or not, Mr. Witness? He was carrying a bag, Sir. What happened after you were introduced to Alias Willy by the informant? Alias Willy was talking like "parang barok at gusto niyang Makita ang pera." That is what I understood. Did you show the money to him? xxxx A: He was showing to me a bag and saying, this is the three kilos and then, I asked him, that it be shown to me. Did he comply with your request that the same be shown to you? Yes, Sir. What was shown to you, Mr. Witness? The three (3) separate plastic pack of one kilo each pack was shown to me. You are saying that the contents of the bag, the plastic bag, which are the three (3) kilos of shabu, in separate small bags were shown to you? Yes, sir. xxx. You said, it was shown to you. How was it shown to you, Mr. Witness? When I told him, let me see, then, he opened the bag and showed to me the

Q: A: Q: A: Q:

Q: xxxx A:

Yes, sir. I showed him the money, genuine and the boodle money I was carrying.

A: Q: A:

COURT : You mean to say, you showed the money to Alias Willy without even telling him the quantity of shabu you would buy?

contents. xxxx Q: You said, that you were shown a bag containing the three (3) kilos of shabu. If you will be able to see that bag, would you actually be able to recognize the same, Mr. Witness? I will see if I can recognize it. I am showing you this green bag, plastic bag markings, with logo and marking, Prudential Bank, around the size of... already marked as our Exh. "O", your honor. Could you please go over the same and tell this Hon. Court, if this is the very same bag that were shown to you, Mr. Witness? This is the one, Sir. Why did you say, that was the very same bag that was shown to you or was given to you by Alias Willy at that time?

Q:

A: xxxx Q:

And above the initial AFC, the bigger initial AFC appears a signature. Could you tell us who placed this marks and the signature? That is my signature, Sir.

A: Q:

A: Q:

xxx. Now, after the transfer or the exchange of xxx after receiving this bag containing the three (3) transparent plastic bags containing in turn, the alleged shabu and after giving the money to him, what did you do afterwards, if any, Mr. Witness? I removed my hat as our pre-arranged signal.

A: Q:

xxxx A: Because I placed my initial in that bag. xxxx Q: xxx By the way, you said that after being shown to you these three (3) plastic bags containing this subject shabu and after inspecting them, what happened afterwards, if any, Mr. Witness? I told him the drugs is okay, so, I gave him the money and he gave me the three (3) plastic bags (nagkaliwaan kami). Why do you say that these are the very same plastic bag containing the alleged shabu, that were sold to you by Alias Willy for P2,100,000.00?

What happened after giving your prearranged signal by removing your hat. What happened if any? A: I introduced to him that I was a NARCOM agent and my companions rushed to our place and apprehended William Ching.[26] The testimonies of the witnesses for the prosecution clearly showed that the sale of the 3 kilos of shabu actually happened. The rest of the prosecution witnesses corroborated SPO1 Cadoy's testimony, that indeed the arrest of Ching was pursuant to a buy-bust operation. Their accounts dovetailed each other and described the incident as a successful and effective buy-bust operation against a drug dealer. According to the records, the entrapment operation started when Police Chief Suan received information from an informant that the latter was arranging a drug deal with Ching. Since the transaction was to be carried out almost immediately, Police Chief Suan no longer required the conduct of a surveillance operation to verify the information. Police Chief Suan lost no time in briefing his men. He then assembled a team to apprehend Ching in the arranged drug deal. He designated SPO1 Cadoy to act as the poseur-buyer and gave him the marked money to be used in the transaction. Inspector Arsenal was also tasked to lead the group in the target area. Police Chief Suan was monitoring his men nearby the area and communicated to them through a radio. Although he did not witness the actual sale, he was able to recount the incidents prior and immediately after the buybust operations, thus: Q: On October 19, 1998, can you tell where were you? A: I am at the office.

A:

Q:

xxxx A: xxxx Q: A: xxxx The letter AFC, who placed this marking? My initial, Sir. I placed my initial, sir.

xxx x

Q:

What happened while you were there at the office?

A:

At about 12:00 o'clock in the morning I received information from our informant regarding an arranged drug deal. xxx x Do you know what is that all about? Selling arrangement with drug dealer they mentioned a certain Willy. What happened after you were given the arranged drug deal? After receiving the information I gave my men briefing regarding the drug transaction Who were your men? I am the team leader, Arsenal, Cadoy, Velazquez, San Luis, Bernardo and others. Who was designated as the poseurbuyer? During that briefing, Cadoy was the poseur-buyer. How about his back-up? I remember SPO1 Bernardo was one of the back-up of Cadoy on the buy bust operation. Q: A: xxx x Q: A: xxx x Q: A:

xxx x Q: A: Q: A:

was given to SPO1 Cadoy. The prearranged signal was as soon as the buy bust operation was consummated, [SPO1 Cadoy was to remove] his hat.

Do you know the approximate time that you arrived at the target area at Binondo, Manila? Almost 2:00 o'clock.

Q: A:

Where did you position yourself, your car, Mr. witness? I position my car near the Binondo church and contacted thru the radio.

Q: A: Q: A:

You said you conducted your communication thru the radio, what happened thereafter xxx? I don't know what actually happened. I was not in the real place or area in the actual place of buy bust operation, sir. What happened to the plan to the buybust? I heard it was already consummated.

xxx x Q: A: What happened thereafter after the briefing if any? As I said SPO1 Cadoy acted as the poseur-buyer. Arsenal will act as the team leader of the group. SPO1 Bernardo as back-up xxx. Was there money involved in this transaction? During that time I gave seven (7) pieces of P1,000.00 peso bill to be used as marked money in the plan buy-bust operation.

Q: A: xxx x Q: A:

Q: A:

What else happened? There was an information that the suspect was arrested by Arsenal and was told to wait a while. The source of shabu will come near from San Fernando and Pearanda Street.

xxx x Q: A: What else happened? Arsenal told me that they were waiting for few minutes at San Fernando St. because the suspect told them that [the source of the] shabu will be coming and going to get the money. After that few minutes elapsed, did you have another communication [with] the group of Arsenal? After few minutes, I think ten minutes after waiting they cannot find the source of shabu, I informed them to proceed to

xxx x Q: A: Q: A: Now aside from the genuine seven P1,000.00 peso bill, were there any other money involved? I supposed [the] boodle money will be used in the buy bust operation. Do you have any pre-arranged signal in the conduct of buy bust operation? Yes, sir. During the briefing, instruction

Q: A:

Q: A: xxx x Q: A:

our office.[27] Now, could you tell us where were you on October 19, 1998? At the office, sir.

xxx x Q: A: Now, upon arrival... Okay upon positioning can you tell us what transpired if any, Mr. witness? Upon arrival of the Tamaraw FX, CI alighted and proceeded toward the direction of San Fernando Street from the gasoline station. So he proceeded to the direction of San Fernando and after more or less ten minutes they return together with one Chinese looking. Now, can you identify that Chinese looking person whom your confidential informant fetch, if you can see him again can you identify him? Yes, sir.

Up to what time were you there at the office? Until 12:00 o'clock we received an information that there is a buy-bust conducted at San Fernando, Binondo, Manila, sir. Now, what happen thereafter after the receipt of the information by the office? Major Suan conducted a briefing regarding that buy bust operation. And designated SPO1 Cadoy as poseur buyer, Bernardo as the back up and the rest as the perimeter and the advance party. Can you tell us how many were involved in this buy-bust operation in Binondo? More or less eight (8). Can you name them if you can still remember? Major Suan, Cadoy, Bernardo, Velasquez, San Luis, Cutsero, Congyan and Anasta. Can you remember how many cars were you when you went to the operation at Binondo? One for the poseur buyer and three for the operatives. What kind of car did you use in that operation? I ride in Toyota Corolla color red.

Q: A:

Q:

A: xxx x Q: A:

Q: A: Q: A: Q: A: Q: A: xxx x Q: A:

Now what happened next, if any? Mr. Witness? After that I saw Bernardo running towards the direction of FX and suddenly there was apprehension.

xxx x Q: A: How about the accused what was he doing then? Then we let them ride on the Tamaraw FX and then we conducted investigation as to who was this source. So he said that the source will wait for him at Pearanda corner San Fernando Street to that money from us he will give to this source of that shabu.

xxx x How about the other cars, who were the passengers of the operatives? On one car, white Toyota Corolla Major Suan, the driver and on Tamaraw FX, Cadoy and the CI. What do you mean by CI? Confidential Informant. Or asset? Yes, sir. And the other car I think Velasquez and Bernardo. xxx What is the fourth car, what kind of car was that? Lancer gray, sir. Q: Now you said you went there. What happened when you reached that place? A: We waited for the source of that area for around fifteen minutes but accused told us that a while [ago a] Honda Civic arrived and left already. So we also left the place.[28] SPO1 Cadoy's back-up, SPO1 Bernardo, confirmed the actual sale as he personally witnessed the drug deal. He recounted the incident in this manner: Q: You said the accused finally arrived. What happened afterwards the accused arrived in that place? A: The two finally met sir. SPO1 Cadoy

Q: A: Q: A: Q: A:

exchange the boodle money with the goods from the accused and after exchanging, SPO1 Cadoy made the prearranged signal. Q: A: xxx x Q: While watching the two transacted xxx, where were you at the precise moment? What was the pre-arranged signal? SPO1 Cadoy took off his hat.

A: We were on board our vehicle sir. xxx x Q: A: Now, after SPO1 Cadoy made the prearranged signal by removing his hat, what did you do if any Mr. witness? I alighted from our vehicle, rushed to the place of SPO1 Cadoy and accused where I immediately grabbed the boodle money and as fast we can, we immediately boarded our vehicle xxx.[29]

Forensic Chemist, Marilyn D. Dequito, who examined the confiscated crystalline substance weighing 3,076.28 grams, found the same positive for methamphetamine hydrochloride. Comparing the defense version with that of the arresting/entrapping police officers as to what occurred in the afternoon of 19 October 1998, this Court finds, as did the RTC and the Court of Appeals, the accounts of the latter more credible. Aside from the presumption that they -- the police operatives -- regularly performed their duties, this Court notes that these operatives, as prosecution witnesses, gave consistent and straightforward narrations of what transpired on the day in question. The police officers uniformly testified of having apprehended the appellant in a buy-bust operation. The version depicted by the prosecution, through the testimonies of the entrapping officers, could only be described by people who actually witnessed the event that took place on 19 October 1998. Only trustworthy witnesses could have narrated with such detail and realism what really happened on the date referred to. Once again this Court stresses that a buy-bust operation is a legally effective and proven procedure, sanctioned by law at that, for apprehending drug peddlers and distributors.[30] It is often utilized by law enforcers for the purpose of trapping and capturing lawbreakers in the execution of their nefarious activities.[31] This Court, of course, is not unaware that in some instances law enforcers resort to the practice of planting evidence to extract information or even to harass civilians. But the defense of frame-up in drug cases requires strong and convincing evidence because of the presumption that the law enforcement agencies acted in the regular performance of their official duties. Moreover, the defense of denial or frame-up, like alibi, has been viewed by the court with disfavor for it can just as easily be concocted and is a common and standard defense ploy in most prosecutions for violation of the Dangerous Drugs Act. In the case under consideration, there is no evidence of any improper motive on the part of the police officers who apprehended Ching. His allegations that the police officers beat him up in their attempt to extract money from him is belied by the absence of any proof to that effect. He did not present any medical record that he was physically abused. If the police officers indeed tried to extort money from Ching by beating him up, he could have filed the proper charges against the erring police officers. The fact that no administrative or criminal charges were filed lends cogency to the conclusion that the alleged frame-up was merely concocted as a defense ploy. In addition, if indeed the supposed disinterested witnesses of the defense, i.e., thepedicab driver and the vendor, really saw Ching being forcibly dragged by unidentified men, they could have at least informed the local authorities of such fact. This they did not do. Thus, the story of the defense is simply implausible. As to Ching's contention that the buy-bust operation is improbable since no person possessed of his wit would close a 2.1 million-peso deal in broad daylight and in a crowded place, this Court finds the same unavailing. This Court observed in many cases that drug pushers sell their prohibited articles to any prospective customer, be he a stranger or not, in private as well as in public places, even in the

daytime.[32] Indeed, drug pushers have become increasingly daring, dangerous and, worse, openly defiant of the law.[33] Hence, what matters is not the time and venue of the sale, but the fact of agreement and the acts constituting sale and delivery of the prohibited drugs. Likewise untenable is Ching's objection to SPO1 Cadoy's credibility relative to the latter's testimony that prior to the hearing of this case before the RTC, he attended another hearing in Cavite. As elucidated by the RTC: On the confusion as to who arrived first at the target place ahead, [SPO1 Cadoy] explained that when he took the witness stand, he just came from Cavite where he testified in a drug case where he was also the poseur-buyer and the buy-bust operation also took place near a gas station. In that case, the seller arrived ahead of the operation team. The defense submitted certifications to the effect that there is no RTC Branch [197] in Cavite and case alluded to by SPO1 Cadoy. xxx. The defense should not capitalize on this on its effort to seek acquittal. Honest mistakes in a rather lengthy testimony cannot dilute the credibility of a witness. In fact, honest mistakes are not inconsistent with truthful testimony.[34] Ching's claim that his warrantless arrest was invalid is not meritorious. The rule is settled that an arrest made after an entrapment does not require a warrant inasmuch as it is considered a valid warrantless arrest pursuant to Rule 113, Section 5(a) of the Rules of Court 47 which states: SEC. 5. Arrest Without Warrant; When Lawful. -- A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense. Having established that the buy-bust operation is factual and legitimate, the subsequent warrantless arrest of Ching and as well as the warrantless seizure of the illegal drugs was permissible, thus: This interdiction against warrantless searches and seizures, however, is not absolute and such warrantless searches and seizures have long been deemed permissible by jurisprudence in instances of (1) search of moving vehicles, (2) seizure in plain view, (3) customs searches, (4) waiver or consented searches, (5) stop and frisk situations (Terry search), and search incidental to a lawful arrest. The last includes a valid warrantless arrest, for, while as a rule, an arrest is considered legitimate [if] effected with a valid warrant of arrest, the Rules of Court recognize permissible warrantless arrest, to wit: (1) arrest in flagrante delicto, (2) arrest effected in hot pursuit, and (3) arrest of escaped prisoners.[35] The prosecution also established the identity of the shabu subject matter of the sale as the very same drug submitted for laboratory examination and later presented before the RTC. SPO1 Cadoy testified that during the buy-bust operation Ching handed him the green bag with the Prudential Bank logo and inside it were three transparent plastic bags containing three kilos of shabu. SPO1 Cadoy declared that he personally made the markings "AFC" (representing his initials) on the items seized which were turned over to the SPO3 Pio G. Titong, the police investigator.[36] The police investigator made an inventory of the confiscated items and prepared a letter request to the PNP Crime Laboratory to examine the seized items which had "AFC" markings.[37] A certain PO1 Pascua personally brought the said items to the PNP Crime Laboratory with a request for laboratory examination and was duly received thereat as evidenced by the stamp signifying receipt thereof on the request itself.[38]Forensic Chemist Marilyn D. Dequito personally received from PO1 Pascua the subject specimens.[39] When the specimens were quantitatively examined by the forensic chemist, the same weighed a little more than three kilos. The forensic chemist likewise found the specimens to be positive for shabu. When the seized items marked "AFC" were presented during the trial, SPO1 Cadoy positively identified the said pieces of evidence as the same items he received from Ching and identified his initials written on the plastic bags. Forensic Chemist Dequito also testified that the substances she examined positive for shabu had the markings "AFC." With these pieces of evidence adduced by the prosecution, the identity of the drugs has been duly preserved and established. In sum, the positive identification made by the police officers and the laboratory report, not to mention the incredulous defense of frame-up to which Ching resorts, sufficiently prove beyond reasonable doubt that he committed the crime charged. The Court of Appeals imposed against petitioner the penalty of reclusion perpetua and to pay a fine of Three Million (P3,000,000.00) Pesos.

The penalty prescribed under Section 15 of Article III, in relation to Section 20 of Article IV, of the Dangerous Drugs Act of 1972, as amended by Republic Act No. 7659, for unauthorized sale of 200 grams or more of shabu or methamphetamine hydrochloride is reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos.[40] In the instant case, the report of Forensic Chemist Marilyn D. Dequito shows that the three (3) plastic plastic bags contained the total weight of 3,076.28 grams. Since the quantity of the shabu weighs more than 250 grams, the proper penalty should bereclusion perpetua to death. Since the penalty of reclusion perpetua to death consists of two indivisible penalties, Ching was correctly meted the lesser penalty of reclusion perpetua, conformably with Article 63(2) of the Revised Penal Code that when there are neither mitigating nor aggravating circumstances in the commission of the deed, the lesser penalty shall be applied. As to the fine, considering that the amount of shabu sold was 3,076.28 grams, this Court finds the amount of P3,000,000.00 imposed by the RTC as reasonable. WHEREFORE, the Decision of the Court of Appeals in CA G.R. CR HC No. 00945, which affirmed in toto the Decision of the Regional Trial Court of Manila, Branch 27, convicting William Ching for violation of Section 15, Article III of Republic Act No. 6425, as amended by Republic Act No. 7659, and sentencing him to suffer the penalty of Reclusion Perpetua and ordering him to pay the fine of P3,000,000.00, isAFFIRMED in toto. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 179150 June 17, 2008

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DELIA BAYANI y BOTANES, accused-appellant. DECISION CHICO-NAZARIO, J.: Appellant Delia Bayani y Botanes assails the Decision1 of the Court of Appeals dated 20 December 2005 in CA-G.R. CR-H.C. No. 00310, affirming the Decision2 dated 16 July 2004 of Branch 103 of the Regional Trial Court (RTC) of Quezon City, in Criminal Case No. Q-03-115598. The RTC found appellant guilty beyond reasonable doubt of drug pushing, in violation of Section 5, Article II of Republic Act No. 9165,3 also known as the Comprehensive Dangerous Drugs Act of 2002, and sentenced her to suffer life imprisonment and a fine of five hundred thousand pesos.

On 7 March 2003, an Information4 was filed before the RTC charging appellant with Violation of Section 5 of Republic Act No. 9165, which reads: That on or about the 3rd day of March 2003, in the Quezon City, Philippines, the abovenamed accused, not being authorized by law to sell, dispense, deliver, transport or distribute any dangerous drug, did then and there, willfully and unlawfully sell, dispense, deliver, transport, distribute or act as broker in the said transaction, six point forty one (6.41) grams of Methylamphetamine Hydrochloride, a dangerous drug. On 9 September 2003, appellant, with the assistance of counsel , was arraigned and she pleaded "Not guilty." Thereafter, a pre-trial conference was held, and trial ensued accordingly.5 Evidence for the prosecution consisted of the testimony of PO3 Virgilio Bernardo, who testified that on 3 March 2003, a confidential informant arrived at Police Station 3, Quirino Highway, Barangay Talipapa, Quezon City, where he was on duty, and reported to the Drug Enforcement Unit that appellant was illegally trading drugs along Trinidad Street, Barangay Gulod, Novaliches, Quezon City. Chief Superintendent Gerardo Ratuita formed a team composed of PO3 Bernardo, SPO4 Brigido An, SPO2 Levi Sevilla, PO2 Manny Panlilio, and PO2 Cecil Collado to conduct a buy-bust operation. The team took with them "boodle" money with two (2) pieces of genuine one-hundredpeso bills on top as buy-bust money.6 At around 10:30 in the morning of the same day, PO3 Bernardo and the informant went in front of the appellants house located at No. 22 Barangay Gulod, Trinidad Street, Novaliches, Quezon City, while the other police officers positioned themselves within viewing distance. The appellant was standing in front of her house. As they approached her, the informant introduced Bernardo to her as a buyer. Witness testified that he told appellant that he wanted to buy ten thousand pesos (P10,000.00) worth of shabu, and the appellant nodded her head. Thereafter, she handed him two sachets containing a crystalline substance which was suspected to be shabu. Witness, in turn, gave the boodle money, after which he grabbed the appellants right hand, apprehended her, and identified himself as a police officer.7 After the apprehension of the appellant, the team brought her before the Police Station investigator, while the drugs and the buy-bust money were turned over to the crime laboratory. Appellant was apprised of her constitutional rights.8 During his testimony, PO3 Bernardo identified the accused, the boodle money with his initials "VB," as well as two (2) sachets of crystalline substance (also with the same initials) which was positive of methylamphetamine hydrochloride after laboratory examination.9 Denying the charge filed against her, appellant testified that at around 7:00 in the morning of 3 March 2003, she was inside her house with her children and her sister-in-law. While changing her clothes inside her room at the third floor, seven men barged inside her house. When she asked them what they were doing inside her house, they refused to answer. Although they continued to search her house, they did not find drugs therein. Thereafter, they introduced themselves as police officers and commanded her to show them the shabu. When she denied possession of any shabu, the police officers got angry and forced her to go with them to the Police Station. She also testified that she could not cry to her neighbors for help because she was locked inside her room while her sister-in-law and her five children were all afraid of the police.10 When they arrived at the Police Station, she was asked if she knew a certain "Allan." She answered in the negative. After a day of detention, she was brought to the office of the inquest fiscal where she was informed that she was being charged with drug pushing.11 Appellants seventeen-year-old son, Dan Jefferson, corroborated his mothers testimony. He recounted that he was about to leave their house when five men barged into their house and went straight to his mothers room at the third floor. He testified that he did not know what happened on the third floor since, at that time, he stayed in their sala at the second floor of the house. Thereafter, the rest of the police officers and his mother left the house, while he stayed put.12

In a Decision dated 16 July 2004, the RTC decreed that the accused was guilty without reasonable doubt since the fact of the illegal sale of a dangerous drug, methylamphetamine hydrochloride, was sufficiently and indisputably established by the prosecution. PO3 Bernardo, as the poseur-buyer, positively identified the appellant as the person who handed him two sachets containing 6.41 grams of shabu in exchange for P10,000.00. The boodle money was marked as Exhibit "B" for the prosecution.13 The two sachets of shabu were likewise presented and marked in court as Exhibits "G" and "H."14 The RTC gave full credence to PO3 Bernardos testimony, given the presumption of regularity in the performance of his functions as a police officer, especially since no ill motive was attributed to him for the appellants apprehension. On the other hand, the RTC found the testimony of appellants son, Dan, on what transpired on the third floor to be unreliable, since at that time he was supposedly staying in the sala, which was located at another floor.15 According to the dispositive part of the Decision dated 16 July 2004: ACCORDINGLY, judgment is hereby rendered finding the accused GUILTY beyond reasonable doubt for (sic) violation of Section 5, Article II, R.A. 9165 for drug pushing of six point forty one (6.41) grams of crystalline substance containing Methylamphetamine hydrochloride and is hereby sentenced to suffer LIFE IMPRISONMENT and to pay a fine of Five Hundred Thousand Pesos. The drug involved in this case is hereby ordered transmitted to the Philippine Drug Enforcement Agency (PDEA) through the Dangerous Drugs Board for proper disposition.16 The appellant filed an appeal before the Court of Appeals docketed as CA-G.R. CR-H.C. No. 00310. Raising only one assignment of error, appellant faulted the RTCs finding of guilt for being based on a buy-bust transaction instigated by the arresting officers. In affirming the RTC Decision, the appellate court declared that the police officers did not induce the appellant to sell the prohibited drugs. By pointing out the fact that appellant had the shabu in her possession, ready for selling, before the police officer approached her, it adjudged that the appellants criminal resolve was evident; no inducement to sell the prohibited drugs had led to the commission of the offense. It maintained that the fact that the police officers did not conduct a prior surveillance does not affect the validity of an entrapment operation. It further held that presentation by the prosecution of the informant and other police officers who had witnessed the buy-bust operations was not required to prove the appellants guilt, where their testimonies would merely repeat the testimony of the poseur-buyer.17 In the Decision dated 20 December 2005, the fallo reads: WHEREFORE, the foregoing considered, the appeal is hereby DISMISSED and the assailed Decision AFFIRMED in toto. Without pronouncement as to costs.18 Hence, the present petition in which the appellant reiterates the sole assignment of error, to wit: THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT OF THE CRIME CHARGED DESPITE THE FACT THAT THE POLICE INSTIGATED THE ALLEGED BUY-BUST TRANSACTION. This petition must fail, since the argument raised by appellant is specious. Appellant argues that PO3 Bernardos act of approaching the appellant to buy shabu during a buy-bust operation amounted to instigation. Such contention lacks basis and is contrary to jurisprudence. Instigation is the means by which the accused is lured into the commission of the offense charged in order to prosecute him. On the other hand, entrapment is the employment of such ways and means for the purpose of trapping or capturing a lawbreaker.19 Thus, in instigation, officers of the law or their agents incite, induce, instigate or lure an accused into committing an offense which he or she would otherwise not commit and has no intention of committing. But in entrapment, the criminal intent or design to commit the offense charged originates in the mind of the accused, and law enforcement officials merely facilitate the apprehension of the criminal by employing ruses and schemes; thus, the accused cannot justify his or her conduct. In instigation, where law enforcers act as co-principals, the accused will have to be acquitted. But entrapment cannot bar prosecution and

conviction. As has been said, instigation is a "trap for the unwary innocent," while entrapment is a "trap for the unwary criminal."20 As a general rule, a buy-bust operation, considered as a form of entrapment, is a valid means of arresting violators of Republic Act No. 9165. It is an effective way of apprehending law offenders in the act of committing a crime. In a buy-bust operation, the idea to commit a crime originates from the offender, without anybody inducing or prodding him to commit the offense. A police officers act of soliciting drugs from the accused during a buy-bust operation, or what is known as a "decoy solicitation," is not prohibited by law and does not render invalid the buy-bust operations. The sale of contraband is a kind of offense habitually committed, and the solicitation simply furnishes evidence of the criminals course of conduct.21 In People v. Sta. Maria, the Court clarified that a "decoy solicitation" is not tantamount to inducement or instigation: It is no defense to the perpetrator of a crime that facilities for its commission were purposely placed in his way, or that the criminal act was done at the "decoy solicitation" of persons seeking to expose the criminal, or that detectives feigning complicity in the act were present and apparently assisting its commission. Especially is this true in that class of cases where the office is one habitually committed, and the solicitation merely furnishes evidence of a course of conduct. As here, the solicitation of drugs from appellant by the informant utilized by the police merely furnishes evidence of a course of conduct. The police received an intelligence report that appellant has been habitually dealing in illegal drugs. They duly acted on it by utilizing an informant to effect a drug transaction with appellant. There was no showing that the informant induced the appellant to sell illegal drugs to him.22 Conversely, the law deplores instigation or inducement, which occurs when the police or its agent devises the idea of committing the crime and lures the accused into executing the offense. Instigation absolves the accused of any guilt, given the spontaneous moral revulsion from using the powers of government to beguile innocent but ductile persons into lapses that they might otherwise resist.23 People v. Doria enumerated the instances when this Court recognized instigation as a valid defense, and an instance when it was not applicable: In United Sates v. Phelps, we acquitted the accused from the offense of smoking opium after finding that the government employee, a BIR personnel, actually induced him to commit the crime in order to persecute him. Smith, the BIR agent, testified that Phelps apprehension came after he overheard Phelps in a saloon say that he like smoking opium on some occasions. Smiths testimony was disregarded. We accorded significance to the fact that it was Smith who went to the accused three times to convince him to look for an opium den where both of them could smoke this drug. The conduct of the BIR agent was condemned as "most reprehensible." In People v. Abella, we acquitted the accused of the crime of selling explosives after examining the testimony of the apprehending police officer who pretended to be a merchant. The police officer offered "a tempting price, x x x a very high one" causing the accused to sell the explosives. We found there was inducement, "direct, persistent and effective" by the police officer and that outside of his testimony, there was no evidence sufficient to convict the accused. In People v. Lua Chu and Uy Se Tieng, [W]e convicted the accused after finding that there was no inducement on the part of the law enforcement officer. We stated that the Customs secret serviceman smoothed the way for the introduction of opium from Hong Kong to Cebu after the accused had already planned its importation and ordered said drug. We ruled that the apprehending officer did not induce the accused to import opium but merely entrapped him by pretending to have an understanding with the Collector of Customs of Cebu to better assure the seizure of the prohibited drug and the arrest of the surreptitious importers.24 In recent years, it has become common practice for law enforcement officers and agents to engage in buy-bust operations and other entrapment procedures in apprehending drug offenders, which is made difficult by the secrecy with which drug-related offenses are conducted and the many devices

and subterfuges employed by offenders to avoid detection. On the other hand, the Court has taken judicial notice of the ugly reality that in cases involving illegal drugs, corrupt law enforcers have been known to prey upon weak, hapless and innocent persons.25 The distinction between entrapment and instigation has proven to be crucial. The balance needs to be struck between the individual rights and the presumption of innocence on one hand, and ensuring the arrest of those engaged in the illegal traffic of narcotics on the other. In the present case, PO3 Bernardo testified that appellant stood in front of her house and was in possession of drugs readily available for anyone who would buy them. PO3 Bernardo did not even have to employ any act of instigation or inducement, such as repeated requests for the sale of prohibited drugs or offers of exorbitant prices. In addition, PO3 Bernardo was able to identify the accused, the boodle money, and the two packets of crystalline substance, which tested positive for methylamphetamine hydrochloride.26 The essential elements for the prosecution for illegal sale of shabu were established: (1) the identity of the buyer and the seller, the object of the sale and the consideration; and (2) the delivery of the thing sold and payment therefor. In short, the delivery of the illicit drug to the poseur-buyer and the receipt by the seller of the marked money, as relayed by PO3 Bernardo, successfully consummated the buy-bust transaction.27 In the case before us, we find the testimony of the poseur-buyer, together with the dangerous drug taken from the 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 the 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; or 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.28 The rule finds an even more stringent application where said findings are sustained by the Court of Appeals.29 Finding no compelling reason to depart from the findings of both the trial court and the Court of Appeals, this Court affirms the same. The self-serving denial of the appellant deserves scant credence, since it is unsupported by any evidence other than the testimony of her son, Dan Jefferson. This Court finds her sons testimony even more suspect, considering that his statement that five men barged into their house was belied by appellants allegation that seven men forcibly entered their home. An allegation of frame-up and extortion by police officers is a common and standard defense in most dangerous drug cases. To substantiate such defense, which can be easily concocted, the evidence must be clear and convincing.30 In this case, there was no allegation of any attempt at extortion on the part of police officers or any reason for the police officers to falsify a serious criminal charge against appellant. Appellant admitted that she had never even seen any of the police officers until she was arrested. This negates any vengeful motive for her arrest. In the absence of proof of any ill motive or intent on the part of the police authorities to falsely impute a serious crime to the appellants, the presumption of regularity in the performance of official duties must prevail over the latters self-serving and uncorroborated claim. This presumption is placed on an even more firm foothold when supported by the findings of the trial court on the credibility of the witness, PO3 Bernardo.31 Contrary to the appellants claim, the prevailing doctrine is that additional corroborating testimony of the confidential informant is not essential to a successful prosecution. Intelligence agents are not often called to testify in court in order to hide their identities and preserve their invaluable service to the police. Once known, they may even be the object of revenge by criminals they implicate. 32 Lastly, the testimonies of other arresting officers are not required in obtaining a conviction. The testimony of PO3 Bernardo, being candid and straightforward, is complete and sufficient for a finding of guilt. Section 6, Rule 133 of the Rules of Court allows the court to stop introduction of

further testimony upon a particular point when more witnesses to the same point cannot be expected to be additionally persuasive. Furthermore, appellant cannot allude to or suggest the possibility of any irregularity that could have been revealed by the presentation of additional witnesses, when she herself failed to exert any effort to summon these witnesses when she had the chance to do so. WHEREFORE, the instant appeal is DENIED. The Decision of the Court of Appeals dated 20 December 2005 in CA-GR. CR-H.C. No. 00310 is AFFIRMED. Appellant Delia Bayani y Botanes is found GUILTY of violation of Section 5, Article II of Republic Act No 9165. No costs. SO ORDERED.

SECOND DIVISION [G.R. No. 175832, October 15, 2008] PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. SALVADOR SANCHEZ Y ESPIRITU, ACCUSED-APPELLANT. DECISION BRION, J.: This case confronts us once more with the buy-bust of a prohibited drug and the procedural difficulties this type of operation poses for the police as well as for the prosecution. On appeal is the September 11, 2006 Decision[1] of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 01095. The CA affirmed the April 14, 2005 Decision[2] of the Regional Trial Court (RTC), Branch 103, Quezon City, that found the accused-appellant Salvador Sanchez y Espiritu (appellant) guilty beyond reasonable doubt of violation of Section 5, Article II of Republic Act (R.A.) No. 9165 (the Comprehensive Dangerous Drugs Act of 2002), meriting him the penalty of life imprisonment. ANTECEDENT FACTS The prosecution charged the appellant before the RTC with violation of Section 5, Article II of R.A. No. 9165 under an Information that states: xxx That on or about the 6th day of April 2003 in Quezon City, Philippines, the said accused, not being authorized by law to sell, dispense, deliver, transport or distribute any dangerous drug, did, then and there, willfully and unlawfully sell, dispense, deliver, transport, distribute or act as broker in the said transaction, zero point zero two (0.02) grams of white crystalline substance containing methylamphetamine hydrochloride, a dangerous drug. CONTRARY TO LAW.[3] The appellant pleaded not guilty to the charge.[4] The prosecution presented its lone witness - SPO2 Levi Sevilla (SPO2 Sevilla) - in the trial on the merits that followed. The appellant and his witness,

Nida Detera (Nida), took the stand for the defense. The RTC summarized the material points of the testimony of SPO2 Sevilla as follows: x x x while he was on Station 3 duty at Talipapa, Novaliches, Quezon City on April 6, 2003 a confidential informant arrived at around 4:30 noon and reported that there is a person who has been selling shabu. An entrapment team was formed consisting of himself as poseur buyer, SPO1 Brigido An, PO3 Virgilio Bernardo, PO2 Manny Paulilis and PO1 Cecil Collado. A pre-operational report was submitted of the undertaking. At 5:00 p.m., the team was dispatched to the target area at the far end Lualhati Street, Manotok Subd., Baesa, Quezon City. PO Sevilla put his initial "LS" on the money given to him to be used at the entrapment.[5] At the place, which is a squatter's colony located at the edge or side of Lualhati St., PO Sevilla and his informant walked towards the place pointed by the informant and met the drug pusher. The informant introduced PO Sevilla to the pusher. The informant and the pusher talked for a while. Thereafter, PO Sevilla talked to the latter. He told him that he badly needs shabu para pumayat. x x x PO Sevilla then gave the pusher P100.00 (the marked money) and in return the pusher gave him a plastic sachet of shabu.[6] After receiving the plastic sachet, PO Sevilla scratched his head as a pre-arranged signal to his colleagues who were deployed nearby. Said other policemen rushed to the crime scene while PO Sevilla grabbed the right hand of the accused and introduced himself as a cop. The accused was frisked and PO Sevilla recovered the P100.00 marked money bill (Exh. G) in the right side pants pocket of the accused who was later brought to Station 3. PO Sevilla identified the transparent plastic sachet on which he placed his initial "LS" and the initial "SS" of the accused (Exh. E).[7] On cross examination, PO Sevilla reiterated his testimony adding that whenever he is tasked as a poseur buyer he always gives as reason that he wanted to be thinner and drug pushers never questioned him about that. PO Sevilla, who was wearing a crew cut in court said that when he bought shabu from the accused his hair style was different. It was his first time to entrap at that place as a poseur buyer. Their marked Anfra van was parked along Quirino Highway, Quezon City from where he and the informant walked to Lualhati Street for about 10 minutes as the target scene was about 100 meters away. He reiterated that their Pre-op Report was sent to PDEA and given a control number.[8] [Italics and footnotes referring to the pertinent parts of the records supplied] The RTC dispensed with the testimony of Forensic Chemist John Paul Puentespina after the parties stipulated that "the items allegedly confiscated from the accused were submitted to the crime laboratory for examination and the findings were put into writing."[9] In the hearing of December 4, 2003, the prosecution offered the following as exhibits: Exhibit "A" - the request for laboratory examination of the specimen confiscated from the appellant; Exhibit "B" - the Initial Laboratory Report prepared by Forensic Chemist Paul Jerome Puentespina; Exhibit "C" - the Confirmatory or Final Chemistry Report No. D-366-03 prepared by Forensic Chemist Paul Jerome Puentespina; Exhibit "D" - sworn Certification to show that the Chemistry Report was subscribed and sworn to before an Administering Officer; Exhibits "E", "E-1" and "E-2" - the specimen taken from the appellant; the initials of Forensic Chemist Puentespina; and the initials of the police officer who arrested the accused and who received the specimen in exchange for the buy bust money, respectively; Exhibit "F" - the brown envelope where the seized evidence was placed after it was examined by Forensic Chemist Puentespina; Exhibits "G" and "G-1" - the buy bust money and the initials written therein of the poseur buyer, respectively; Exhibits "H" and "H-1" - the Joint Affidavit of the entrapment team and the signature therein by SPO2 Sevilla, respectively.

The defense objected to Exhibits "E," "E-1," "E-2," "G" and "H," contending that the appellant "had nothing to do with the specimen presented before the court," and that the confiscated specimen resulted from an illegal arrest. On Exhibit "G," the defense argued that no evidence of powder was ever presented by the prosecution witness. The defense likewise objected to the presentation of Exhibit "H" on the ground that its contents were self-serving. The appellant gave a different version of the events in his testimony of January 30, 2005. He narrated that at around 5:25 in the afternoon of April 6, 2003, he was in his house putting his children to sleep when three (3) police officers suddenly barged into his house, searched the premises, frisked him, and forced him to come with them.[10] He recognized one of the policemen as "Sir Levi," a former colleague of his uncle, Sonny Catiis, at the police station. The police officers then handcuffed him and asked him to get into a police vehicle. He begged them and shouted, "Sir you already frisked me in the house and you did not find anything, you might just plant evidence in my pocket, please do not do so." The police brought him to Police Station 3, Talipapa, Quezon City, and placed him in a detention cell without an investigation being conducted.[11] While inside his cell, the police showed him a plastic sachet and said that it was the shabu taken from him. SPO2 Sevilla asked him to call his uncle, but he refused to do so; he feared that his uncle would think that the confiscated shabu was really taken from him.[12] Nida testified that she was at the kitchen of the appellant's house doing the laundry between 2:003:00 in the afternoon of April 6, 2003, when she heard loud knocks on the door. The appellant, who was in bed, stood up and opened the door.[13] A person entered, pushed the appellant backwards, and handcuffed him. This person then ordered the appellant to sit down so he (the appellant) could be asked questions. A total of four persons, all male, entered the house. Afterwards, the appellant and she were frisked; a lighter was taken from her, but nothing was seized from the appellant.[14] The RTC primarily considered the reputation of SPO2 Sevilla in giving weight to his testimony, and held that "PO Sevilla has been a frequent witness in drugs cases and he has already established his credibility before this court." Its decision of April 14, 2005 found the appellant guilty beyond reasonable doubt of violation of Section 5, Article II of R.A. No. 9165. It imposed on him the penalty of life imprisonment and ordered him to pay a fine of P50,000.00. The appellant appealed to the CA, with the appeal docketed as CA-G.R. CR-H.C. No. 01095. In its decision of September 11, 2006, the CA affirmed the RTC decision. In his brief[15] on appeal, the appellant contends that the court a quo gravely erred in finding him guilty beyond reasonable doubt for violation of R.A. No. 9165. He maintains that the court's order of conviction was merely based on the good reputation SPO2 Sevilla has established with the court based on the many drug cases he had handled. The trial court, too, wrongly interpreted the appellant's appearance and demeanor because "his head was bowed and his eyes were dreamy and sad."[16] The defense harps, too, on the prosecution's failure to prove that the sachets allegedly recovered from the appellant were the ones submitted to the forensic chemist for examination, as well as its failure to follow the proper chain of custody in handling the seized evidence. It was only the arresting officer who testified that he confiscated the sachet from the accused. The police officer who conducted the subsequent investigation and to whom the confiscated sachet was allegedly turned over was not identified nor presented as witness. Hence the identity of the evidence presented against the appellant is doubtful.[17] The prosecution counters with the argument that the trial court's findings on the credibility of SPO2 Sevilla and the lack of it with respect to the appellant and his witness Nida, should be given great weight and respect, as the trial court had the chance and the prerogative to hear and appreciate these matters at the trial. SPO2 Sevilla described in a clear and unwavering manner how the police team planned for and conducted the buy-bust operation, and how he marked the plastic sachet of shabu he bought from appellant immediately after the latter's arrest. Even the statement regarding the credibility of SPO2 Sevilla, a frequent witness before the trial court in drug cases, does not mean that the trial court was biased. If at all, it only meant that the trial court had known SPO2 Sevilla and had often observed his demeanor as a witness.

The prosecution further argues that the evidence for the defense is incredible and doubtful judging from the testimonies of the appellant and his witness Nida. While the appellant testified that his alleged unlawful arrest transpired at 5:25 p.m. of April 6, 2003, his witness Nida testified with certainty that she witnessed the arrest take place on the same date between 2:00 p.m. and 3:00 p.m. as she saw the time on the wall clock. Moreover, the appellant himself admitted that he had no knowledge of any adverse reason or ill motive that would induce the arresting police officers to falsely implicate him. To the prosecution, this lack of ill motive supports the view that SPO2 Sevilla testified to the truth and his acts should enjoy the presumption of regularity. As to the corpus delicti, the prosecution stresses that it fully proved that the item recovered from the appellant is positive for shabu. The request for laboratory examination of the specimen confiscated from the appellant; the initial laboratory report showing that the item bought and/or seized from appellant is positive for shabu; and the final chemistry report were all formally offered in evidence, without any objection from the appellant. The defense, in fact, agreed to stipulate on the contents and the veracity of the forensic examinations made relative to the item recovered from the appellant. The corpus delicti having been proven and even admitted by the appellant, there was nothing more for the prosecution to establish; it had proven beyond reasonable doubt all the elements of the illegal sale of dangerous drugs, specifically - (a) the identity of the buyer and seller, the object and the consideration; and (b) the delivery of the things sold and the payment therefor. THE COURT'S RULING After due consideration, we resolve to acquit the appellant for the prosecution's failure to prove his guilt beyond reasonable doubt. Non-observance of the requirements of Section 21, paragraph 1 of Article II of Republic Act No. 9165 In considering a criminal case, it is critical to start with the law's own starting perspective on the status of the accused - in all criminal prosecutions, he is presumed innocent of the charge laid unless the contrary is proven beyond reasonable doubt.[18] Thus, while the charge was laid after a preliminary finding that a probable cause existed showing that a crime had been committed and the accused was probably guilty thereof, the criminal trial itself starts with the substantive presumption of the innocence on the part of the accused, rebuttable only by proof of his guilt beyond reasonable doubt. The burden of such proof rests with the prosecution which must rely on the strength of its case rather than on the weakness of the case for the defense. Proof beyond reasonable doubt, or that quantum of proof sufficient to produce a moral certainty that would convince and satisfy the conscience of those who act in judgment, is indispensable to overcome the constitutional presumption of innocence.[19] To prove the legitimacy of the police buy-bust operation, the prosecution presented the following: (a) a pre-operation report bearing Unit Control Number 0504-03-07 signed by the desk officer, police chief and team leader of the station drug enforcement unit, which indicated the type, time and general area of operation, the type of vehicles and firearms to be used, and the respective names of the team leader, poseur-buyer and members of the buy-bust team; (b) a photocopy of the marked money; and (c) the joint affidavit of the entrapment team signed by the poseur-buyer, SPO2 Sevilla, and PO1 Collado. The operation yielded a plastic sachet containing shabu allegedly confiscated from the appellant. A buy-bust operation is a form of entrapment employed by peace officers to apprehend prohibited drug law violators in the act of committing a drug-related offense.[20] Because of the built-in danger for abuse that a buy-bust operation carries, it is governed by specific procedures on the seizure and custody of drugs, separately from the general law procedures geared to ensure that the rights of people under criminal investigation[21] and of the accused facing a criminal charge[22] are safeguarded. We expressed this concern in People v. Tan,[23] when we recognized that "by the very nature of anti-narcotic operations, the need for entrapment procedures, the use of shady characters as informants, the ease with which sticks of marijuana or grams of heroin can be planted in the pockets or hands of unsuspecting provincial hicks, and the secrecy that inevitably

shrouds all drug deals, the possibility of abuse is great. Thus, the courts have been exhorted to be extra vigilant in trying drug cases lest an innocent person is made to suffer the unusually severe penalties for drug offenses." The required procedure on the seizure and custody of drugs is embodied in Section 21, paragraph 1, Article II of R.A. No. 9165, which states: 1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof. [Emphasis ours] This is implemented by Section 21(a), Article II of the Implementing Rules and Regulations of R.A. No. 9165, which reads: (a) The apprehending officer/team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof: x x x Provided, further that non-compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items. [Emphasis supplied] The records of the present case are bereft of evidence showing that the buy-bust team followed the outlined procedure despite its mandatory terms, as indicated by the use of "shall" in its directives. The deficiency is patent from the following exchanges at the trial: FISCAL GIBSON ARAULA: Q: Now after you received that shabu or transparent plastic sachet containing shabu and gave the P100.00 bill to the accused, what happened next?

SPO2 LEVI SEVILLA: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: After I received [sic] I scratched my head. What is the purpose? Pre-arrange[d] signal. After that what happened? They swooped down in the scene. What happened after that? I grab [sic] his right hand. When you grabbed his right hand what did you tell him? I introduced myself as Police Officer. Then after that what happened next? I grabbed the accused and informed him of his constitutional right. After informing of his constitutional right what happened Mr. Witness? We brought him to our station. How about the transparent plastic sachet, where is it?

A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A:

It is in my possession. How about the buy-bust money in the amount of P100.00? I recovered it from the right pants pocket. Now you said that you brought the accused to the Police Station, what happened to the Police Station? We turn [sic] him over to the Desk Officer. What did you turn over? The accused and the evidences, the plastic shabu sir. Before you turn over that plastic sachet Mr. Witness, what did you put there? I put my initial and initial of the accused. If that transparent plastic sachet is shown to you, can you identify that Mr. Witness? Yes, sir. Showing to you this plastic sachet Mr. Witness, what can you say to that transparent plastic sachet? This was the one I purchased from the accused because I have here my initial and the initial of the accused, sir.

x x x x[24] [Emphasis ours] Other than the markings that SPO2 Sevilla alleged, it is clear that no physical inventory and no photograph of the seized items were taken in the presence of the accused or his counsel, a representative from the media and the Department of Justice (DOJ), and an elective official. Based on the above testimony, SPO2 Sevilla - the prosecution's lone witness - also did not mark the plastic sachet of shabu immediately upon seizure; it was only marked upon arrival at the police station. Thus, other than the stipulation regarding the handling and results of the specimen at the forensic laboratory, SPO2 Sevilla's testimony and the evidence he identified constitute the totality of the evidence for the prosecution on the handling of the allegedly seized items. We recognize that the strict compliance with the requirements of Section 21 of R.A. No. 9165 may not always be possible under field conditions; the police operates under varied conditions, many of them far from ideal, and cannot at all times attend to all the niceties of the procedures in the handling of confiscated evidence. The participation of a representative from the DOJ, the media or an elected official alone can be problematic. For this reason, the last sentence of the implementing rules provides that "non-compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items." Thus, non-compliance with the strict directive of Section 21 of R.A. No. 9165 is not necessarily fatal to the prosecution's case; police procedures in the handling of confiscated evidence may still have some lapses, as in the present case. These lapses, however, must be recognized and explained in terms of their justifiable grounds and the integrity and evidentiary value of the evidence seized must be shown to have been preserved. In the present case, the prosecution apparently did not want to accept that the police had committed lapses in the handling of the seized materials and thus did not bother to present any explanation to justify the non-observance of the prescribed procedures. It likewise failed to prove that the integrity and evidentiary value of the items adduced were not tainted as the discussions below will show. The non-observance by the police of the required procedure cannot therefore be excused.

The "chain of custody" over the confiscated items was not proven Under Section 5, Article II[25] of R.A. No. 9165, the elements necessary in every prosecution for the illegal sale of shabu are: (1) the identity of the buyer and the seller, the object and the consideration; and (2) the delivery of the thing sold and the payment therefor. Implicit in all these is the need for proof that the transaction or sale actually took place, coupled with the presentation in court of evidence of corpus delicti - the body of the crime whose core is the confiscated illicit drug.[26] Proof beyond reasonable doubt demands that unwavering exactitude be observed in establishing the corpus delicti: every fact necessary to constitute the crime must be established.[27] The chain of custody requirement performs this function in buy-bust operations as it ensures that doubts concerning the identity of the evidence are removed.[28] In a long line of cases, we have considered it fatal for the prosecution to fail to prove that the specimen submitted for laboratory examination was the same one allegedly seized from the accused.[29] Black's Law Dictionary explains chain of custody in this wise: In evidence, the one who offers real evidence, such as narcotics in a trial of drug case, must account for the custody of the evidence from the moment in which it reaches his custody until the moment in which it is offered in evidence, and such evidence goes to the weight not to admissibility of evidence. Com. V. White, 353 Mass. 409, 232 N.E.2d 335. Likewise, Section 1(b) of Dangerous Drugs Board Regulation No. 1, Series of 2002[30] which implements R.A. No. 9165 defines "chain of custody" as follows: "Chain of Custody" means the duly recorded authorized movements and custody of seized drugs or controlled chemicals or plant sources of dangerous drugs or laboratory equipment of each stage, from the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping to presentation in court for destruction. Such record of movements and custody of seized item shall include the identity and signature of the person who held temporary custody of the seized item, the date and time when such transfer of custody were made in the course of safekeeping and use in court as evidence, and the final disposition. Although this regulation took effect on October 18, 2002 (or after the commission of the crime charged), it is nonetheless useful in illustrating how the process of preserving the integrity of the chain of custody of the seized drugs is ensured and maintained. That the police failed to approximate these safeguards and the prosecution failed to prove the identity of the specimen allegedly seized and the specimen submitted as evidence during the trial is evident from SPO2 Sevilla himself who testified as follows: FISCAL GIBSON ARAULA: Q: After informing [the accused] of his constitutional right what happened Mr. Witness?

SPO2 LEVI SEVILLA A: Q: A: Q: A: Q: A: Q: A: We brought him to our station. How about the transparent plastic sachet, where is it? It is in my possession. How about the buy-bust money in the amount of P100.00? I recovered it from the right pants pocket. Now you said that you brought the accused to the Police Station, what happened to the Police Station? We turn him over to the Desk Officer. What did you turn over? The accused and the evidences, the plastic shabu sir.

Q: A: xxxx Q: A:

Before you turn over that plastic sachet Mr. Witness, what did you put there? I put my initial and initial of the accused.

By the way Mr. Witness after you turned over to the investigator the plastic sachet, did you happen to know where the investigator brought the plastic sachet? I gave that plastic sachet first to the table of the Desk Officer and the Desk Officer gave it to the investigator.

FISCAL GIBSON ARAULA: That would be all for the witness. x x x x[31] Significantly, this was the only testimony in the case that touched on the chain of custody of the seized evidence. It failed to disclose the identities of the desk officer and the investigator to whom the custody of the drugs was given, and how the latter handled these materials. No reference was ever made to the person who submitted the seized specimen to the PNP Crime Laboratory for examination. Likewise, no one testified on how the specimen was handled after the chemical analysis by the forensic chemist. While we are aware that the RTC's Order of August 6, 2003 dispensed with the testimony of the forensic chemist because of the stipulations of the parties, we view the stipulation to be confined to the handling of the specimen at the forensic laboratory and to the analytical results obtained. The stipulation does not cover the manner the specimen was handled before it came to the possession of the forensic chemist and after it left his possession. To be sure, personnel within the police hierarchy (as SPO2 Sevilla's testimony casually mentions) must have handled the drugs but evidence of how this was done, i.e., how it was managed, stored, preserved, labeled and recorded from the time of its seizure, to its receipt by the forensic laboratory, up until it was presented in court and subsequently destroyed - is absent from the evidence adduced during the trial. To repeat an earlier observation, even the time and place of the initial marking of the alleged evidence are not at all certain as the testimony on this point varies. The recent case of Lopez v. People[32] is particularly instructive on how we expect the chain of custody or "movement" of the seized evidence to be maintained and why this must be shown by evidence: As a method of authenticating evidence, the chain of custody rule requires that the admission of an exhibit be preceded by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be. It would include testimony about every link in the chain, from the moment the item was picked up to the time it is offered into evidence, in such a way that every person who touched the exhibit would describe how and from whom it was received, where it was and what happened to it while in the witness' possession, the condition in which it was received and the condition in which it was delivered to the next link in the chain. These witnesses would then describe the precautions taken to ensure that there had been no change in the condition of the item and no opportunity for someone not in the chain to have possession of the same. While testimony about a perfect chain is not always the standard because it is almost always impossible to obtain, an unbroken chain of custody becomes indispensable and essential when the item of real evidence is not distinctive and is not really identifiable, or when its condition at the time of testing or trial is critical, or when a witness has failed to observe its uniqueness. The same standard likewise obtains in case the evidence is susceptible to alteration, tampering, contamination and even substitution and exchange. In other words, the exhibit's level of susceptibility to fungibility, alteration or tampering - without regard to whether the same is advertent or otherwise not - dictates the level of strictness in the application of the chain of custody rule. [Emphasis ours] That the prosecution offered in evidence the request for laboratory examination (Exh. "A"), the initial laboratory report (Exh. "B"), and final Chemistry Report No. D-366-03 (Exh. "C"), to which the defense did not object, has no bearing on the question of whether the specimen submitted for chemical analysis and subsequently presented in court was the same as that seized from the

appellant. All that these exhibits proved were the existence and authenticity of the request for laboratory examination and the results of this examination, not the required chain of custody from the time of seizure of the evidence. Evidently, the prosecution has not proven beyond reasonable doubt the indispensable element of corpus delicti of the crime. In People v. Orteza,[33] the Court had the occasion to discuss the implications of the failure to comply with Section 21, paragraph 1, to wit: ... In People v. Laxa, 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. The Court made a similar ruling in People v. Kimura, 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, 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. [Emphasis supplied] We reached the same conclusion in People v. Nazareno[34] and People v. Santos,[35] where we again stressed the importance of complying with the prescribed procedure. Physical inventory and photograph requirement under Section 21 vis-a-vis "marking" of seized evidence While the first sentence of Section 21(a) of the Implementing Rules and Regulations of R.A. No. 9165 states that "the apprehending officer/team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same," the second sentence makes a distinction between warrantless seizures and seizures by virtue of a warrant, thus: (a) x x x Provided, that the physical inventory and photograph shall be conducted at the place where the search warrant is served; or at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable, in case of warrantless seizures; Provided, further that non-compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items. [Emphasis supplied] Thus, the venues of the physical inventory and photography of the seized items differ and depend on whether the seizure was made by virtue of a search warrant or through a warrantless seizure such as a buy-bust operation. In seizures covered by search warrants, the physical inventory and photograph must be conducted in the place where the search warrant was served. On the other hand, in case of warrantless seizures such as a buy- bust operation, the physical inventory and photograph shall be conducted at the nearest police station or office of the apprehending officer/team, whichever is practicable; however, nothing prevents the apprehending officer/team from immediately conducting the physical inventory and photography of the items at the place where they were seized, as it is more in keeping with the law's intent of preserving their integrity and evidentiary value. What Section 21 of R.A. No. 9165 and its implementing rule do not expressly specify is the matter of "marking" of the seized items in warrantless seizures to ensure that the evidence seized upon apprehension is the same evidence subjected to inventory and photography when these activities are undertaken at the police station rather than at the place of arrest. Consistency with the "chain of custody" rule requires that the "marking" of the seized items - to truly ensure that they are the same items that enter the chain and are eventually the ones offered in evidence - should be done (1) in the presence of the apprehended violator (2) immediately upon confiscation. This

step initiates the process of protecting innocent persons from dubious and concocted searches, and of protecting as well the apprehending officers from harassment suits based on planting of evidence under Section 29[36] and on allegations of robbery or theft.[37] For greater specificity, "marking" means the placing by the apprehending officer or the poseurbuyer of his/her initials and signature on the item/s seized. If the physical inventory and photograph are made at the nearest police station or office as allowed by the rules,[38] the inventory and photography of the seized items must be made in accordance with Sec. 2 of Board Resolution No. 1, Series of 2002,[39] but in every case, the apprehended violator or counsel must be present. Again, this is in keeping with the desired level of integrity that the handling process requires. Thereafter, the seized items shall be placed in an envelope or an evidence bag unless the type and quantity of the seized items require a different type of handling and/or container. The evidence bag or container shall accordingly be signed by the handling officer and turned over to the next officer in the chain of custody. Conclusion The evidentiary gap in identifying the specimen that the forensic laboratory analyzed brings us back to where we started in analyzing the case - to the presumption of innocence that the Constitution accords the appellant. To reiterate, starting from this point, the prosecution must proceed to establish the guilt of the accused by proof beyond reasonable doubt. To do this, the prosecution presented its lone witness, SPO2 Sevilla, whom the lower court believed because the witness had testified before the court before. Thus, rather than look at the merits of his testimony, the lower court simply considered his person and past performance, and decided on this basis that he was a credible witness. This, by itself, is a major error - a violation of due process - on the part of the lower court that the appellate court apparently did not fully appreciate. A court must always decide on the basis of the evidence presented, not on the basis of any other extraneous consideration not before the court. The court apparently banked also on the presumption of regularity in the performance that a police officer like SPO2 Sevilla enjoys in the absence of any taint of irregularity and of ill motive that would induce him to falsify his testimony. Admittedly, the defense did not adduce any evidence showing that SPO2 Sevilla had any motive to falsify. The regularity of the performance of his duties, however, leaves much to be desired given the lapses in his handling of the allegedly confiscated drugs as heretofore shown. An effect of this lapse, as we held in Lopez v. People,[40] is to negate the presumption that official duties have been regularly performed by the police officers. Any taint of irregularity affects the whole performance and should make the presumption unavailable. There can be no ifs and buts regarding this consequence considering the effect of the evidentiary presumption of regularity on the constitutional presumption of innocence. People v. Santos[41] instructively tells us that the presumption of regularity in the performance of official duty cannot by itself overcome the presumption of innocence nor constitute proof beyond reasonable doubt.[42] In People v. Caete,[43] we also said: While the Court is mindful that the law enforcers enjoy the presumption of regularity in the performance of their duties, this presumption cannot prevail over the constitutional right of the accused to be presumed innocent and it cannot, by itself constitute proof of guilt beyond reasonable doubt. The presumption of regularity in the performance of official duty cannot be used as basis for affirming accused-appellant's conviction because "First, the presumption is precisely just that - a mere presumption. Once challenged by evidence, as in this case, xxx [it] cannot be regarded as binding truth. Second, the presumption of regularity in the performance of official functions cannot preponderate over the presumption of innocence that prevails if not overthrown by proof beyond reasonable doubt." The presumption also cannot prevail over positive averments concerning violations of the constitutional rights of the accused. In short, the presumption of regularity in the performance of official duty cannot by itself overcome the presumption of innocence nor constitute proof beyond reasonable doubt. Without the presumption of regularity, the evidentiary gap in identifying the seized evidence from its turnover by the poseur-buyer, its handling and custody, until its turnover to the forensic laboratory for analysis, stands out in bold relief. This gap renders the case for the prosecution less than complete in terms of proving the guilt of the accused beyond reasonable doubt.

From the perspective of the defense, we cannot help but note that the evidence for the defense is far from strong; the appellant merely denied that a buy-bust operation took place and claimed that the evidence against him was a planted evidence. In this jurisdiction, the defense of denial or frame-up, like alibi, has been viewed with disfavor for it can easily be concocted and is a common defense ploy in most prosecutions for violation of the Dangerous Drugs Act.[44] Likewise, the testimony of the other defense witness, Nida, fails to fully corroborate the appellant's testimony due to inconsistencies in their respective statements. These weaknesses, however, do not add any strength nor can they help the prosecution's cause. If the prosecution cannot establish, in the first place, the appellant's guilt beyond reasonable doubt, the need for the defense to adduce evidence in its behalf in fact never arises. Thus, however weak the defense evidence might be, the prosecution's whole case still falls. To hark back to the well-entrenched dictum in criminal and constitution law: the evidence for the prosecution must stand or fall on its own weight and cannot be allowed to draw strength from the weakness of the defense. Thus, we return to the conclusion that we should acquit the accused for failure of the prosecution - due the gap-induced weaknesses of its case - to prove the appellant's guilt beyond reasonable doubt. WHEREFORE, in light of all the foregoing, the September 11, 2006 Decision of the Court of Appeals in CA-G.R. CR-H.C. No. 01095 affirming the judgment of conviction of the Regional Trial Court, Branch 103, Quezon City is hereby REVERSED and SET ASIDE. Appellant Salvador Sanchez y Espiritu is ACQUITTED on reasonable doubt and is ordered immediately RELEASED from detention, unless he is confined for any other lawful cause. The Director of the Bureau of Corrections is DIRECTED to IMPLEMENT this Decision and to report to this Court the action taken hereon within five (5) days from receipt. SO ORDERED. SECOND DIVISION [G.R. No. 173483, September 23, 2008] PEOPLE OF THE PHILIPPINES, APPELLEE, VS. MERLIE* DUMANGAY Y SALE, APPELLANT. DECISION QUISUMBING, J.: For review is the Decision [1] dated April 28, 2006 of the Court of Appeals in CA-G.R. CR-H.C. No. 01700. The appellate court affirmed the Decision [2] dated October 29, 2003 of the Regional Trial Court of Makati City, Branch 135 in Criminal Case Nos. 02-3568 and 02-3569. The trial court had convicted appellant Merlie Dumangay y Sale of violation of Sections 5 and 11 of Article II of Republic Act No. 9165 [3] and sentenced her to suffer the penalty of life imprisonment and pay the fine of P500,000 in Criminal Case No. 02-3568, and imprisonment of twelve (12) years and one (1) day to twenty (20) years and to pay the fine of P300,000 in Criminal Case No. 02-3569; and pay the cost of suit. The Informations xxxx That on or about the 29th day of November 2002, in the City of Makati Philippines and a place within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously without being authorized by law, sell, distribute and transport zero point zero one (0.01) gram of [Methamphetamine] hydrochloride (shabu) which is a dangerous drug in consideration of two hundred (Php 200.00) pesos. CONTRARY TO LAW. xxxx
[4]

both dated December 2, 2002 that led to Merlie's convictions are as follows: Criminal Case No. 02-3568

Criminal Case No. 02-3569 xxxx That on or about the 29th day of November 2002, in the City of Makati Philippines and a place within the jurisdiction of this Honorable Court, the above-named accused, not being lawfully authorized to possess any dangerous drug and without the corresponding license or prescription, did then and there willfully, unlawfully and feloniously have in [her] possession zero point zero two (0.02) gram of [Methamphetamine] hydrochloride of a dangerous drug. CONTRARY TO LAW. xxxx Upon arraignment on February 21, 2003, appellant pleaded not guilty. Thereafter, trial ensued. The prosecution presented only one witness, a member of the Makati Anti-Drug Abuse Council (MADAC), Francisco Barbosa. He testified as follows: At 7 o'clock in the evening of November 29, 2002, an informant reported to the office of MADAC Cluster 3 that a certain Merlie, later identified as appellant, was engaged in selling shabu at the corner of Don Pedro and Enriquez Sts., Barangay Poblacion, Makati City. Acting on the report, MADAC Cluster Head, Barangay Chairman Vic Del Prado, formed a team to conduct a buy-bust operation with Barbosa as the poseur-buyer. Del Prado also coordinated with the Drug Enforcement Unit (DEU) of the Makati City Police Station. [5] Thereafter, Del Prado, DEU operative PO1 Jaime Laura, and other MADAC members proceeded to the place where Merlie was reportedly selling shabu. They found Merlie in front of her house at 5649 Don Pedro corner Enriquez St., Barangay Poblacion, Makati City; and with the informant, Barbosa approached Merlie. The informant introduced Barbosa as a buyer of shabu, while the other members of the team watched from strategic positions. Merlie then asked Barbosa how much he would buy. Barbosa said, "dalawang daang piso lang," then handed Merlie the two 100-peso marked money. In exchange, Merlie gave him a small plastic sachet of a white crystalline substance. After Barbosa pretended to examine it, he gave the pre-arranged signal to the other members of the team and they arrested Merlie. Barbosa found the marked money and two more plastic sachets containing white crystalline substance in Merlie's possession and informed Merlie the cause of her arrest and apprised her of her constitutional rights. [6] Thereafter, Merlie was brought to the DEU of the Makati City Police Station. The three plastic sachets were sent to the Philippine National Police Crime Laboratory for examination. The laboratory report confirmed that the sachets contained methamphetamine hydrochloride or shabu. Each sachet weighed 0.01 gram. [7] The testimony of the Forensic Chemist who examined the substance and prepared the report was dispensed with, considering the parties had stipulated that the report was duly accomplished after the substance examined by the crime laboratory yielded positive of methamphetamine hydrochloride. [8] The defense presented Merlie as its sole witness. Merlie denied the allegations of the prosecution. She testified that at the time of the alleged buy-bust operation, she was already sleeping at home with her daughter when a man awakened her. She said that there were two men who searched the house. According to her, although no illegal item was found, she was still forced to board a vehicle and was taken to the Sta. Cruz Barangay Hall. There, a certain Minyang had taken her to a comfort room and told her to strip, but nothing illegal was found on her person. She also said that no uniformed policemen accompanied the arresting team and that Barbosa was not among the men who arrested her. She did not file any complaint against the people who arrested her because she had no relative to help her. [9] On October 29, 2003, the trial court found the evidence of the prosecution sufficient to prove Merlie's guilt beyond reasonable doubt and rendered a decision of conviction in Criminal Case Nos. 02-3568 and 02-3569.

The dispositive portion of the trial court's decision reads: WHEREFORE, it appearing that the guilt of the accused MERL[I]E DUMANGAY y SALE was proven beyond reasonable doubt for violation of Sections 5 and 11, Article II of R.A. 9165, as principal, with no mitigating or aggravating circumstances, accused is hereby sentenced: 1. In Criminal Case No. 02-3568, to suffer life imprisonment and to pay a fine of P500,000.00;

2. In Criminal Case No. 02-3569, to suffer imprisonment for a term of twelve [12] years and one
[1]

day to twenty

[20]

years and to pay a fine of P300,000.00; and

3. To pay the costs. Let the three [3] plastic sachets each containing zero point zero one [0.01] gram of [Methamphetamine] Hydrochloride be turned over to the PDEA for proper disposition. SO ORDERED. [10] Merlie appealed. In view of our ruling in People v. Mateo, Appeals. [12]
[11]

this case was referred to the Court of

Upon review, the Court of Appeals concluded in the Decision dated April 28, 2006 that the trial court did not err in finding Merlie guilty beyond reasonable doubt. The appellant and the Office of the Solicitor General (OSG) opted not to file their supplemental briefs. But, we find on record their briefs filed with this Court before the case was transferred to the Court of Appeals. Appellant raised in her brief a single issue: THE COURT A QUO GRAVELY ERRED IN CONVICTING THE ACCUSED FOR VIOLATION OF SECTIONS 5 AND 11, ARTICLE II OF RA 9165 DESPITE THE PROSECUTION'S FAILURE TO PROVE HER GUILT BEYOND REASONABLE DOUBT. [13] Simply stated, the issue in this case is whether appellant is guilty beyond reasonable doubt of violating Rep. Act No. 9165. Appellant challenges the testimony of Barbosa and claims that it was incredible and inconsistent in regard to her identity. She avers that since there was no surveillance conducted before the buybust operation and the informant was not present at the time, there was no certainty as to the "Merlie" who was selling the prohibited drugs, named by the informant. [14] According to appellant, although the testimony of Barbosa presented the elements of the crime that would convince the trial court, it should be taken with caution, since, Barbosa, as a MADAC agent, could make it appear that there was entrapment when there was none. [15] She further argues that the reason for her conviction shall not be the weakness of her defense but the strength of the evidence of the prosecution. [16] For the State, the OSG maintains that the prosecution had proved the elements of the crime charged: (1) the presence of the appellant at the scene of the crime; (2) the act of selling one plastic sachet of shabu; and (3) the recovery of two plastic sachets of shabu at the time of the entrapment. It also argues that the credibility of Barbosa, whose testimony established the elements of the crime, was never impeached by the defense.[17] The OSG avers that Barbosa positively identified appellant as the seller of shabu, and such positive identification prevails over her feeble defense that she was sleeping at their house when the entrapment took place.[18] Moreover, the OSG maintains that the trial court imposed the proper penalty for the crime charged.
[19]

The pertinent provisions of Article II of Rep. Act No. 9165 provide: 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.

xxxx SEC. 11. Possession of Dangerous Drugs.--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 possess any dangerous drug in the following quantities, regardless of the degree of purity thereof: xxxx (5) 50 grams or more of methamphetamine hydrochloride or "shabu"; xxxx Otherwise, if the quantity involved is less than the foregoing quantities, the penalties shall be graduated as follows: xxxx (3) Imprisonment of twelve (12) years and one (1) day to twenty (20) years and a fine ranging from Three hundred thousand pesos (P300,000.00) to Four hundred thousand pesos (P400,000.00), if the quantities of dangerous drugs are less than five (5) grams of .... methamphetamine hydrochloride.... xxxx We are convinced that appellant is guilty beyond reasonable doubt. The elements of illegal sale of shabu are: (1) the identity of the buyer and the seller, the object and the consideration; and (2) the delivery of the thing sold and the payment therefor. What is material is the proof that the transaction or sale transpired, coupled with the presentation in court of the corpus delicti. Corpus delicti is the body or substance of the crime, and establishes the fact that a crime has been actually committed. It has two elements, namely: (1) proof of the occurrence of a certain event; and (2) some person's criminal responsibility for the act. [20] The straightforward testimony of Barbosa, the poseur-buyer, clearly established that an illegal sale of shabu actually took place and that appellant was the seller, thus: FISCAL MORENO: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: Mr. Witness, how did you come to know the accused in this particular case, Merlie Dumangay? Through our informant. And when did that informant go to your office? November 29, 2002 at 7:00 p.m. [A]nd what was the information given to your office by the informant? That [a] certain Merlie was engaged in selling prohibited drugs. And after receiving such information Mr. Witness, do you recall if your office did [anything] to the information? Yes sir. What Mr. Witness? Our office called up ... the DEU, Makati police. Do you know the reason Mr. [W]itness why your office has to call up the DEU office? [Y]es sir. For what particular purpose Mr. Witness? Why is there a need to call DEU Mr. Witness? [S]o that we can participate in our operation sir. And what participation did the [DEU] office make in connection with the buy bust

A: Q: A: xxxx Q: A: Q: A: Q: A: Q: A: Q: A: Q:

operation? He [led] our operation sir. After the coordination has been made with the [DEU], what happened next? We conducted a briefing sir.

After the briefing was conducted Mr. Witness do you recall if ever a buy bust operation was conducted? There was sir. Against whom was the buy bust operation Mr. Witness? I could not recall sir. Do you know if [a] buy bust operation was in fact conducted on November 29, 2002? Yes sir, there was. Do you recall if somebody was arrested as a result of the buy bust operation Mr. Witness? A: Yes sir. Who is that particular person? Merlie Dumangay sir. Where is that Merlie Dumangay now? Will you kindly point her out?

INTERPRETER: Witness pointing to a woman inside the courtroom [who], when asked, identified herself as Merlie Dumangay. FISCAL MORENO: Q: A: Q: A: Q: A: xxxx FISCAL MORENO: Q: A: Q: A: Have you read the contents of this Pinagsanib na Salaysay ng Pag-aresto written in Tagalog? Yes sir. [D]o you affirm and confirm as to the truthfulness of the allegations contained in this Pinagsanib na Salaysay ng Pag-aresto? Yes sir. In connection with the arrest, which you have conducted against the person of Merlie Dumangay, do you recall if you ever executed a Pinagsanib na Salaysay ng Pag-aresto? Yes sir. If that Pinagsanib na Salaysay ng Pag-aresto will be shown to you, will you be able to identify the same? Yes sir. I am showing to you Mr. Witness this Pinagsanib na Salaysay ng pag-aresto consisting of two pages. Will you kindly go over this document and tell us if that is the same Pinagsanib na Salaysay ng Pag-aresto which you said you executed? Yes sir.

FISCAL MORENO:

For purposes of expediency your Honor and to save the material time of the Honorable Court, we would like to stipulate with the defense that the allegations contained in this Pinagsanib na Salaysay ng Pag-aresto will form part of his direct testimony your Honor. ATTY. QUIAMBAO: We agree your Honor.[21] (Emphasis supplied.) Barbosa, PO1 Jaime Laura, MADAC members Romeo Lazaro and Marvin Cruz, in the sworn Pinagsanib na Salaysay ng Pag-aresto,[22] recounted the details of the buy-bust operation. They stated therein that acting on confidential information, a team composed of MADAC and DEU agents proceeded to the place where Merlie was allegedly selling shabu. The informant made the introductions and the transaction took place. Barbosa handed the marked money to Merlie while the latter handed him one plastic sachet of shabu. Thereafter, Merlie was immediately arrested and upon her arrest, Barbosa found two plastic sachets in her right hand. The laboratory examination of the crystalline substance confiscated from Merlie and forwarded to the Philippine National Police Crime Laboratory yielded positive of methamphetamine hydrochloride. In short, the prosecution clearly and positively established that Merlie agreed to sell shabu to the poseur-buyer and that the sale was consummated. Moreover, Barbosa identified the three plastic sachets of shabu and the marked money in court.[23] We disagree with appellant's contention that inconsistencies in Barbosa's testimony are adequate to demolish the credibility of Barbosa. The inconsistencies alluded to by the appellant in the testimony of Barbosa are inconsequential and minor to adversely affect his credibility.[24] The inconsistencies do not detract from the fact that Barbosa positively identified her in open court.[25] What is essential is that the prosecution witness positively identified the appellant as the one who sold the shabu to the poseur-buyer. There is also nothing on record that sufficiently casts doubt on the credibility of the prosecution witness.[26] More so, the lack of prior surveillance does not cast doubt on Barbosa's credibility. We have held that a prior surveillance is not necessary especially where the police operatives are accompanied by their informant during entrapment, as in this case. [27] Contrary to appellant's contention, the informant was present during the entrapment.[28] Note that a buy-bust operation is a form of entrapment legally employed by peace officers as an effective way of apprehending drug dealers in the act of committing an offense. Such police operation has judicial sanction as long as it is carried out with due regard to constitutional and legal safeguards.[29] The delivery of the contraband to the poseur-buyer and the receipt by the seller of the marked money successfully consummate the buy-bust transaction between the entrapping officers and the accused. Unless there is clear and convincing evidence that the members of the buy-bust team were inspired by any improper motive or were not properly performing their duty, their testimony on the operation deserves faith and credit.[30] In light of the clear and convincing evidence of the prosecution, we find no reason to deviate from the findings of the trial court and the appellate court. More so, appellant failed to present evidence that Barbosa and the other members of the team had any ill motive to falsely accuse her of a serious crime. Absent any proof of such motive, the presumption of regularity in the performance of official duty as well as the findings of the trial court on the credibility of witnesses shall prevail over appellant's self-serving and uncorroborated defenses.[31] Lastly, considering that the buy-bust operation in this case is legitimate, the subsequent warrantless arrest and the warrantless search and seizure are equally valid. In People v. JulianFernandez,[32] we held that the interdiction against warrantless searches and seizures is not absolute and such warrantless searches and seizures have long been deemed permissible by jurisprudence in instances such as the search incidental to a lawful arrest. This includes a valid warrantless arrest, for, while as a rule, an arrest is considered legitimate if effected with a valid warrant of arrest, the Rules of Court recognize an arrest in flagrante delicto as a permissible warrantless arrest.[33] In this case, we find that the appellant, having failed to controvert the evidence that the other two plastic sachets of shabu were found in her possession, is also guilty

beyond reasonable doubt of illegal possession of shabu. In sum, we find no reversible error in the decisions of the trial court and the appellate court in holding appellant guilty beyond reasonable doubt of the offenses charged. WHEREFORE, the Decision dated April 28, 2006 of the Court of Appeals in CA-G.R. CR-H.C. No. 01700 finding appellant Merlie Dumangay y Sale guilty beyond reasonable doubt of the crimes charged in Criminal Case Nos. 02-3568 and 02-3569 for violation of Sections 5 and 11 of Rep. Act No. 9165 is AFFIRMED. No pronouncement as to costs. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 178876 June 27, 2008

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ALFREDO CONCEPCION y CLEMENTE and HENRY CONCEPCION y CLEMENTE, accusedappellants. DECISION CHICO-NAZARIO, J.: On appeal before Us is the Decision1 of the Court of Appeals in CA-G.R. CR-H.C. No. 01808 dated 18 May 2007 which affirmed in toto the decision dated 13 December 20052 of the Regional Trial Court (RTC) of Malolos, Bulacan, Branch 78, convicting accused-appellants Alfredo Concepcion y Clemente and Henry Concepcion y Clemente of Violation of Section 5,3 Article II of Republic Act No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002. Appellants, together with Hegino dela Cruz, were charged before the RTC of Malolos, Bulacan, with Violation of Section 5, Article II of Republic Act No. 9165 under the following information: That on or about the 27th day of November, 2002, in the municipality of Sta. Maria, province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, without authority of law and legal justification, in conspiracy with one another, did then and there wilfully, unlawfully and feloniously sell, trade, deliver, give away, dispatch in transit and transport dangerous drugs consisting of three (3) heat-sealed transparent plastic sachets weighing 5.080 grams, 4.446 grams and 4.362 grams, respectively.4 When arraigned, appellants and accused Dela Cruz pleaded not guilty to the crime charged.5

The prosecution presented two witnesses: Police Officer (PO2) Peter Sistemio6 and PO2 Arlan Arojado,7 both regular members of the Philippine National Police (PNP) and assigned with the Philippine Drug Enforcement Agency (PDEA), Regional Office No. 3, Bulacan Provincial Office, Barangay Saluysoy, Meycauayan, Bulacan. The version of the prosecution is as follows: Sometime in the afternoon of 26 November 2002, a confidential informant reported to Senior Police Officer (SPO)1 Buenaventura R. Lopez at the PDEA, Regional Office No. 3, Bulacan Provincial Office, Barangay Saluysoy, Meycauayan, Bulacan, that an alias Totoy was engaged in selling drugs, particularly shabu, in Barangay Guyong, Sta. Maria, Bulacan. SPO1 Lopez instructed the confidential agent to set a drug deal with alias Totoy and order ten (10) grams of shabu. The confidential informant returned and confirmed that the delivery of the 10 grams of shabu would be made in Barangay Guyong at 2:00 a.m. of 27 November 2002. A buy-bust operation was planned and a team formed. The team was composed of SPO1 Lopez as team leader; PO2 Sistemio as the poseurbuyer; and PO2 Arojado, PO2 Navarette and PO2 Kho as back-up operatives. The team, together with the confidential informant, proceeded to Barangay Guyong and arrived thereat at 1:15 a.m. of 27 November 2002. PO2 Sistemio and the confidential informant alighted from their vehicle and proceeded to a waiting shed along the highway. The rest of the team positioned themselves ten to twenty meters away in their parked vehicles. At around 2:00 a.m. a violet Hyundai van with plate number XAM-592 arrived with appellants and accused Dela Cruz on board. Dela Cruz was driving, while appellant Alfredo Concepcion, a.k.a. Totoy, was seated beside him and appellant Henry was at the back. The confidential informant introduced PO2 Sistemio to Totoy who asked the latter how much shabu he would buy. PO2 Sistemio replied he would buy two plastic packs of shabu equivalent to ten grams. Totoy answered that each pack was worth P6,000.00 and got two plastic packs from the vans compartment and gave them to PO2 Sistemio. Appellant Henry Concepcion said, "Mura pa yan, direkta kasi kami."8 PO2 Sistemio also heard someone say, "Magandang klase yang stuff na yan."9 After receiving the two plastic packs, PO2 Sistemio lit a cigarette, the pre-arranged signal for the other members of the buy-bust team to approach and arrest the culprits. The boodle money that PO2 Sistemio had with him was no longer given to Totoy. Upon seeing PO2 Sistemio light a cigarette, the other team members blocked the vehicle. PO2 Arojado was ordered by PO2 Sistemio to search the vans glove compartment where the former recovered a medium-sized plastic sachet. Appellants and accused Dela Cruz were apprehended and brought to the PDEA office. The two plastic sachets10 given by appellant Alfredo Concepcion to PO2 Sistemio, and the other one11 recovered in the glove compartment, were marked with the initials "P.S. A," "P.S. A-1" and "A.G.A.," respectively. On the same day, per request12 of SPO1 Lopez, these plastic sachets containing white crystalline substance were sent to the PNP Provincial Crime Laboratory Office 3, Bulacan Provincial Office, Camp Alejo Santos, Malolos, Bulacan, for laboratory examination to determine the presence of dangerous drugs. After a qualitative examination was conducted on the specimens, Police Inspector Nellson C. Sta. Maria, Forensic Chemical Officer, issued Chemistry Report No. D-700-2002 with a conclusion that said specimens contained methylamphetamine hydrochloride (shabu), a dangerous drug.13 The testimony of SPO1 Buenaventura Lopez was dispensed with due to the admission by the defense that his testimony would merely corroborate the testimony of PO2 Arojado, and that the alleged buy-bust operation was coordinated through cellular phone, but the same was not duly recorded before Barangays Guyong and Poblacion per certifications issued by the Barangay Captains of said barangays.14 With the defenses admission of the existence, due execution and genuineness of the request for laboratory examination, the Chemistry Report and specimens submitted, the testimony of Police Inspector Nellson C. Sta. Maria was also dispensed with. After the prosecution formally offered its evidence,15 appellants and accused Dela Cruz, with leave of court, filed their respective demurrers to evidence,16 which the trial court denied on 1 March 2005 for lack of merit.17 The defense presented three witnesses: (1) appellant Alfredo Concepcion; (2) Julieta dela Rosa, appellant Alfredos spouse and appellant Henrys sister-in-law; and (3) accused Hegino dela Cruz.

Appellant Alfredo Concepcion disclosed that appellant Henry Concepcion is his brother and accused Hegino dela Cruz is his brothers friend. He narrated that at around 8:00 to 9:00 p.m. of 26 November 2002, he was in his house at RG Nicolas, Poblacion, Sta. Maria, Bulacan, when he, together with appellant Henry Concepcion, Hegino dela Cruz, Armando Cabral and Leopoldo Igueza, was arrested by elements of the PDEA. They were about to rest when they were arrested and handcuffed. PDEA operatives, whom he later came to know when the instant case was filed, entered his house and stayed for more or less thirty minutes. They were loaded into the vehicle of accused Hegino dela Cruz. His wife and the wife of appellant Henry were present when he was arrested. They were then brought to the PDEA headquarters and were told that they had shabu. Appellant Alfredo Concepcion said he had no knowledge about the police officers allegation that he and his co-accused sold shabu to a poseur-buyer in Barangay Guyong, Sta. Maria, Bulacan. At the time of the supposed sale of shabu, he claims they were already at the PDEA headquarters. He denied he had shabu and that the police officers recovered nothing from his house. He was informed by his wife that a cell phone was missing in their house when the latter went to the PDEA headquarters. Appellant Alfredo added that upon his instruction, his wife reported his alleged arrest in his home before the Office of the Punong Barangay of Barangays Guyong and Poblacion.18 Julieta dela Rosa testified that between 8:00 p.m. and 9:00 p.m. of 26 November 2002, she was inside her house together with her brother-in-law (appellant Henry) and sister-in-law. Her husband, appellant Alfredo Concepcion, was outside with his friends (Armando Cabral and Leopoldo Abreza19) waiting for the vehicle of her other brother-in-law (Roberto Concepcion) which vehicle Alfredo would use in accompanying his friends to Manila. While she was watching television inside her house, she heard a commotion outside and when she opened a window, she saw her husband, accused Hegino dela Cruz, Armando and Leopoldo already handcuffed and being loaded into a van owned by accused Hegino. She went out and asked the person who handcuffed her husband the reason for this. She learned that the person who handcuffed her husband was a member of the PDEA. She was told to go inside the house and not to make any noise. She went inside to call her sister-in-law and when she went out again, her husband and all the others were no longer there. Julieta followed them to the office of the PDEA in Saluysoy St., Meycauayan, Bulacan. SPO1 Buenaventura Lopez told her that a case was filed against her husband because they recovered something from him which she said was not true. Thereafter, she went home and proceeded to the barangay hall of Poblacion to report that her husband and his companions were arrested without anything being recovered from them.20 She then went to the police station of Sta. Maria, Bulacan, to check if the PDEA coordinated with them. She claims a certification21 was issued showing that there was no coordination made by PDEA. In connection with the instant case, she and her sister-in-law, Anna Juan, who is the wife of appellant Henry Concepcion, executed a sworn statement.22 Lastly, she explained she did not know what happened outside where her husband and his friends were apprehended. Next to take the stand for the defense was accused Hegino dela Cruz who testified that in the late afternoon of 26 November 2002, he was in his house at Lalakhan, Sta. Maria, Bulacan. While resting, someone informed him that appellant Henry Concepcion called and was renting his Hyundai van with plate number XAM-592 registered in his wifes name. He then proceeded to the house of Henry at RG Nicolas St. (formerly Calderon), Sta. Maria, Bulacan, and arrived thereat before 8:00 p.m. He parked the van in front of Henrys house. While seated at the drivers seat, he talked with Henry who told him, "Luluwas kami." Henry was standing beside the van while Alfredo Concepcion was seated at the side with two companions. While he was conversing with Henry, a vehicle suddenly arrived. One of its passengers told him to alight and face the van, while the other passengers went to the house of Alfredo Concepcion. He was frisked and was arrested without being informed of the reason therefor. He, together with appellants Concepcion, was brought to Saluysoy St., Meycauayan, Bulacan. In going to said place, they rode his van, which was driven by a PDEA member. Upon reaching the place, he called his family and came to know that the PDEA was filing a drug case against him and was told that there was shabu in the compartment of the van. He denied he had illegal drugs and that he was the only one using the van. Prior to the incident, he had not been charged with any offense in any other court.

On 13 December 2005, the trial court rendered its decision convicting appellants Alfredo and Henry Concepcion with, but acquitting accused Hegino dela Cruz of, the crime charged. The decretal portion of the decision reads: WHEREFORE, the foregoing considered, this Court finds accused Alfredo Concepcion y Clemente and Henry Concepcion y Clemente GUILTY beyond reasonable doubt of the offense of Violation of Section 5, Article II of R.A. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002 and hereby sentences EACH of them to suffer the penalty of LIFE IMPRISONMENT AND A FINE OF P500,000.00. Accused Hegino dela Cruz is hereby ACQUITTED of the offense charged for insufficiency of evidence. Accordingly, the Jail Warden of the Bulacan Provincial Jail is hereby DIRECTED to release accused Hegino dela Cruz from detention unless he is being held for some other lawful cause. In the service of their sentence, accused Alfredo Concepcion and Henry Concepcion who are detention prisoners shall be credited with the entire period of their preventive imprisonment. The drugs subject matter of this case is hereby forfeited in favor of the government. The Branch Clerk of Court is hereby directed to turn over the same to the Dangerous Drugs Board for proper disposal thereof.23 In convicting the brothers Concepcion, the trial court gave credence to the testimonies of P02 Sistemio and PO2 Arojada when they positively identified appellant Alfredo Concepcion as the one from whom they bought and got the sachets of shabu. Also from their testimonies, the trial court found that appellant Henry Concepcion conspired with appellant Alfredo in trading the dangerous drugs for which they were charged. Appellant Henrys statement "Mura pa yan, direkta kasi kami" when he tried to persuade the poseur-buyer to accept the price of the drugs when the buy-bust transaction was taking place, convinced the trial court of his participation in the offense. The trial court further applied in favor of the PDEA agents the presumption of regularity in the performance of official duty. As regards accused Dela Cruz, the trial court was not convinced of his guilt. It explained that mere presence in the scene of the crime was not sufficient to convict in light of PO2 Sistemios statement that he was not certain if it was accused dela Cruz who uttered "Magandang klase yang stuff na yan." On 15 December 2005, appellants Alfredo and Henry Concepcion filed a Notice of Appeal.24 In an Order dated 3 January 2006, the trial court approved the notice of appeal and directed the Branch Clerk of Court to immediately transmit the entire records of the case to the Court of Appeals pursuant to Administrative Circular No. 20-2005.25 In its decision dated 18 May 2007, the Court of Appeals totally agreed with the trial court. It disposed of the case as follows: WHEREFORE, premises considered, the present appeal is hereby DISMISSED for lack of merit. The appealed Decision dated December 13, 2005 of the Regional Trial Court of Malolos City, Bulacan, Branch 78 in Criminal Case No. 3328-M-2002 is hereby AFFIRMED and UPHELD. With costs against the accused-appellants.26 On 31 May 2007, appellants Alfredo and Henry Concepcion filed a Notice of Appeal with manifestation were terminating the legal services of their private counsel and praying that they be represented by the Public Attorneys Office (PAO).27 On 15 June 2007, the Court of Appeals gave due course to the Notice of Appeal and ordered the forwarding of the records of the case to the Supreme Court. The appellate court appointed the PAO to represent the appellants.28 With the elevation of the records to the Court and the acceptance of the appeal, the parties were required to file their respective supplemental briefs, if they so desired, within thirty days from notice.29 The parties manifested that they were not filing supplemental briefs, arguing that the

relevant issues of the case had been discussed in their respective briefs filed before the Court of Appeals. Accused-appellants make the following assignment of errors: A THE HONORABLE TRIAL COURT GRAVELY ERRED IN NOT FINDING THAT THE PROSECUTION WAS NOT ABLE TO ESTABLISH THE GUILT OF THE ACCUSED-APPELLANTS BEYOND REASONABLE DOUBT. B THE HONORABLE TRIAL COURT PATENTLY ERRED IN DEVIATING FROM THE ESTABLISHED RULE THAT THE PRESUMPTION OF REGULARITY IN THE PERFORMANCE OF OFFICIAL DUTY BY POLICE OFFICERS SHOULD NOT BY ITSELF PREVAIL OVER THE PRESUMPTION OF INNOCENCE AND THE CONSTITUTIONALLY PROTECTED RIGHTS OF THE ACCUSED-APPELLANTS. C THE HONORABLE TRIAL COURT GRAVELY ERRED IN CONVICTING ACCUSED-APPELLANTS NOT ON THE BASIS OF THE STRENGTH OF THE PROSECUTIONS EVIDENCE BUT RATHER ON THE WEAKNESS OF THE EVIDENCE FOR THE DEFENSE. D THE HONORABLE TRIAL COURT GRAVELY ERRED IN NOT FINDING THAT THERE ARE SITUATIONS WHERE AN ACCUSED CAN HAVE NO OTHER DEFENSE BUT A DENIAL OF COMPLICITY IN THE OFFENSE CHARGED, AS THAT COULD BE THE TRUTH, THE WHOLE TRUTH AND NOTHING BUT THE TRUTH.30 Appellants argue that the alleged buy-bust operation was not satisfactorily proven and was of doubtful legitimacy because of the failure of the prosecution to present and offer in evidence the physical inventory and the photograph of the evidence confiscated as required by Section 21,31 Article II of Republic Act No. 9165, and that said operation was not coordinated with the PDEA. After going over the evidence on record, we find that there, indeed, was a buy-bust operation involving appellants. The prosecutions failure to submit in evidence the required physical inventory of the seized drugs and the photograph pursuant to Section 21, Article II of Republic Act No. 9165 will not exonerate appellants. Non-compliance with said section is not fatal and will not render an accuseds 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.32 In the instant case, we find the integrity of the drugs seized intact. The chain of custody of the drugs subject matter of the case was shown not to have been broken. After seizure of the drugs from appellants possession, P02 Sistemio and PO2 Arojada marked them with their initials and turned them over to SPO1 Lopez who, on the same day, sent these plastic sachets containing white crystalline substance to PNP Provincial Crime Laboratory Office 3, Bulacan Provincial Office, Camp Alejo Santos, Malolos, Bulacan, for laboratory examination to determine the presence of dangerous drugs. After a qualitative examination conducted on the specimens, Police Inspector Nellson C. Sta. Maria, Forensic Chemical Officer, concluded that the white crystalline substance was positive for methylamphetamine hydrochloride (shabu), a dangerous drug. There can be no doubt that the drugs seized from appellants were the same ones examined in the crime laboratory. This statement is bolstered by the defenses admission of the existence, due execution and genuineness of the request for laboratory examination, the Chemistry Report and specimens submitted. We agree with the Court of Appeals when it said: While it is true that counsel for appellants, during the cross-examination of PO2 Sistemio, questioned the latter on non-compliance with Sec. 21 of R.A. No. 9165 regarding the

immediate physical inventory and photographing of the seized dangerous drug, there is no showing that the integrity and evidentiary value of the confiscated shabu from appellants at the time of the buy-bust had not been properly preserved by the apprehending team. PO2 Sistemio explained that the seized substance contained in three properly marked plastic sachets were sent for chemical analysis to the PNP Crime Laboratory at Camp Alejo Santos in Malolos City, Bulacan. Significantly, such an objection was not reiterated by the appellants in their Demurrer to Evidence which was focused merely on the alleged inconsistencies in the narration of the details of the buy-bust by prosecution witnesses PO2 Sistemio and PO2 Arojado, as well as non-presentation of the marked boodle money which supposedly disproves the sale.33 Appellants argument that the buy-bust operation was not coordinated with the PDEA is specious. From the testimonies of the defense witnesses, it is clear that they all know that the buy-bust operation was conducted by the elements of the PDEA. It is thus nonsensical for the defense to argue that the operation was not coordinated with the PDEA if it was the PDEA itself that conducted the entrapment. Moreover, said argument is belied by the defenses admission that the PDEA coordinated with Barangays Guyong and Poblacion via cellphone regarding the conduct of the buybust operation. Appellants contention that they were not apprised of their constitutional rights upon their arrest cannot lead to their acquittal. The arresting officers alleged failure to inform them of their Miranda rights or the nature of their arrest should have been raised before arraignment. It is too late in the day for appellants to raise these alleged illegalities after a valid information has been filed, the accused arraigned, trial commenced and completed, and a judgment of conviction rendered.34 Appellants claim that the PDEA, aside from its supposed non-compliance with Republic Act No. 9165, failed to prove and execute certain matters that would show that a proper buy-bust operation was conducted. The alleged requirements for a proper buy-bust which the PDEA did not undertake include the following: (1) the prosecution failed to offer proof that appellants were known drug traffickers; (2) no surveillance was done to verify appellants illicit activities; (3) the serial numbers of the boodle money were not jotted down in the log/blotter book during the planning and execution of the buy-bust operation; and (4) the boodle money prepared was grossly inadequate (P6,000.00) for the price of two plastic packs of shabu equivalent to 10 grams, as one pack commands a price of P6,000.00, which fact was known by the entrapping officers. The absence of all these, appellants say, shows that they are innocent of the charge. We find their claim untenable. In this jurisdiction, the conduct of a buy-bust operation is a common and accepted mode of apprehending those involved in the illegal sale of prohibited or regulated drugs. It has been proven to be an effective way of unveiling the identities of drug dealers and of luring them out of obscurity.35 Unless there is clear and convincing evidence that the members of the buy-bust team were inspired by any improper motive or were not properly performing their duty, their testimonies on the operation deserve full faith and credit.36 Jurisprudence has firmly entrenched the following as elements in the crime of illegal sale of prohibited drugs: (1) the accused sold and delivered a prohibited drug to another, and (2) he knew that what he had sold and delivered was a dangerous drug.37 These two elements were clearly established in this case. The records show that appellants sold and delivered the shabu to the PDEA agent posing as a poseur-buyer. The plastic sachets containing white crystalline substance, which were seized and were found positive for methylamphetamine hydrochloride (shabu), a dangerous drug, were identified and offered in evidence. There is also no question that appellants knew that what they were selling and delivering was shabu, a dangerous drug. After reviewing the evidence on record, we find the testimonies of the poseur-buyer and his backup, as well as the dangerous drug seized from appellants, 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.38 The rule finds an even more stringent application where said findings are sustained by the Court of Appeals.39 Finding no reason to deviate from the findings of both the trial court and the Court of Appeals, we uphold their findings. Appellants assertion that the prosecution should have offered proof showing that they are drug traffickers and are notorious in the drug trade as proof of a proper buy-bust operation, is without basis. This Court does not know of any law or jurisprudence that requires such evidence before it can be held that there was a legal buy-bust operation. Appellants likewise insist that surveillance should have been conducted to verify their illicit activities. We do not agree. 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.40 A prior surveillance, much less a lengthy one, is not necessary especially where the police operatives are accompanied by their informant during the entrapment.41 Flexibility is a trait of good police work.42 In the instant case, the entrapment or buybust operation was conducted without the necessity of any prior surveillance because the confidential informant, who was previously tasked by the buy-bust team leader to order dangerous drugs from appellant Alfredo Concepcion, accompanied the team to the person who was peddling the dangerous drugs. The failure of the PDEA operatives to record the boodle money will not render the buy-bust operation illegal. The recording of marked money used in a buy-bust operation is not one of the elements for the prosecution of sale of illegal drugs. The recording or non-recording thereof in an official record will not necessarily lead to an acquittal as long as the sale of the prohibited drug is adequately proven.43 In the case at bar, PO2 Sistemio, the poseur buyer and PO2 Arojado testified as to how the shabu subject of the case was seized from appellants. Settled is the rule that in the prosecution for the sale of dangerous drugs, the absence of marked money does not create a hiatus in the evidence for the prosecution as long as the sale of dangerous drugs is adequately proven and the drug subject of the transaction is presented before the court. Neither law nor jurisprudence requires the presentation of any money used in the buy-bust operation.44 What is material to a 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 the corpus delicti as evidence.45 The prosecution duly established both in this case. Appellants claim that the boodle money prepared by the buy-bust team was grossly insufficient. We find such claim baseless. The Court, after examining the transcript of stenographic notes containing the testimonies of the prosecution witnesses, did not find the exact amount of boodle money that was prepared. What is clear, though, is the fact that the boodle money was not given to appellant Alfredo Concepcion because of the apprehension that followed after the poseur-buyer signaled that the transaction had already been consummated. Appellants argument that the poseur-buyer was not able to strike a deal or a sale because one of the elements of the crime charged was wanting - payment by the poseur-buyer for the thing sold or receipt of the marked money by the seller of the dangerous drugs - is erroneous. As abovementioned, the transaction between the poseur-buyer and appellants was already consummated. There is no rule of law which requires that in buy-bust operations there must be a simultaneous exchange of the marked money and the prohibited drug between the poseur-buyer and the pusher.46 It must be emphasized that appellants were charged with selling, trading, delivering, giving away, dispatching in transit and transporting dangerous drugs under Section 5, Article II of Republic Act No. 9165. The charge was not limited to selling. Said section punishes not only the sale but also the mere act of delivery of prohibited drugs after the offer to buy by the entrapping officer has been accepted by the seller. In the distribution of prohibited drugs, the payment of any consideration is

immaterial. The mere act of distributing the prohibited drugs to others is in itself a punishable offense.47 In the case at bar, the shabu was delivered to the poseur-buyer after appellants agreed on the price of the contraband. PO2 Sistemio, the poseur-buyer, failed to give the boodle money to appellant Alfredo as payment for the shabu. However, he satisfactorily explained why he was not able to do so. He testified that there was boodle money with him during the operation to pay for the sale of the drugs, but he was unable to utilize the same because he immediately performed the pre-arranged signal alerting the rest of the buy-bust team that he had received the drugs. Appellants deny the existence of the buy-bust operation and cry frame-up. We are not swayed. In the case at bar, the evidence clearly shows that appellants were involved in the buy-bust operation. Having been caught in flagrante delicto, appellants Alfredo and Henrys participation cannot be doubted. Against the positive testimonies of the prosecution witnesses, appellants plain denial of the offenses charged, unsubstantiated by any credible and convincing evidence, must simply fail.48 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.49 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.50 We uphold the presumption of regularity in the performance of official duties. The presumption remains 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 presumption was not overcome as there was no evidence showing that PO2 Sistemio and PO2 Arojado were impelled by improper motive. The testimony of defense witness Julieta dela Rosa does not convince us. As the wife of appellant Alfredo and sister-in-law of appellant Henry, we find her not to be credible. Her testimony is suspect and unsubstantiated. In her direct testimony, she said her husband, appellant Alfredo, was outside their house with his friends.51 However, such statement was belied by Alfredo himself who said he was inside his house when he was allegedly arrested by members of the PDEA. Such inconsistency as to where appellant Alfredo was when the alleged unlawful arrest was made, further diminishes the credibility of the defense witnesses. Undeniably, appellants are guilty of sale and delivery of shabu, a dangerous drug. It was duly established that there was a conspiracy between them to sell and deliver dangerous drugs. An examination of the information reveals that appellants were charged with selling, trading, delivering, giving away, dispatching in transit and transporting dangerous drugs consisting of three (3) heat-sealed transparent plastic sachets weighing 5.080 grams, 4.446 grams and 4.362 grams, respectively. However, from the testimonies of the prosecution witnesses, only two sachets52 were sold and delivered to the poseur-buyer. The third sachet53 was not sold or delivered but was found by PO2 Arojado in the glove compartment of the Hyundai van. From the foregoing, it is thus clear that appellants could have been charged with possession of dangerous drugs54 on account of the third sachet. This was not done. They cannot be convicted of possession of dangerous drugs, though proved, without being properly charged therefor. The error on the part of the public prosecutor notwithstanding, the appellants are still guilty, as charged in the information, of selling and delivering the two sachets to the poseur-buyer. We now go to the penalty to be imposed. The court a quo imposed on each of the appellants the penalty of life imprisonment and a fine of P500,000.00 which the Court of Appeals sustained. Under Section 5, Article II of Republic Act No. 9165, 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

P10,000,000.00.55 The statute, in prescribing the range of penalties imposable, does not concern itself with the amount of dangerous drug sold by an accused.56 With the effectivity, however, of Republic Act No. 9346, otherwise known as "An Act Prohibiting the Imposition of Death Penalty in the Philippines," the imposition of the supreme penalty of death has been proscribed. As a consequence, the penalty to be meted to appellants shall only be life imprisonment and fine. The penalty imposed by the court a quo being in accordance with law, and which the appellate court upheld, this Court similarly sustains the same. WHEREFORE, premises considered, the instant appeal is DENIED. The Decision of the Court of Appeals in in CA-G.R. CR-H.C. No. 01808 dated 18 May 2007 which affirmed in toto the Decision of the Regional Trial Court (RTC) of Malolos, Bulacan, Branch 78, convicting appellants Alfredo Concepcion y Clemente and Henry Concepcion y Clemente of violation of Section 5, Article II of Republic Act No. 9165, is hereby AFFIRMED. No costs. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION

G.R. No. 164815

February 22, 2008

SR. INSP. JERRY C. VALEROSO, petitioner, vs. THE PEOPLE OF THE PHILIPPINES, respondent. DECISION REYES, R.T., J.: THE law looks forward, never backward. Lex prospicit, non respicit. A new law has a prospective, not retroactive, effect.1 However, penal laws that favor a guilty person, who is not a habitual criminal, shall be given retroactive effect.1-a These are the rule, the exception and exception to the exception on effectivity of laws. Ang batas ay tumitingin sa hinaharap, hindi sa nakaraan. Gayunpaman, ang parusa ng bagong batas ay iiral kung ito ay pabor sa taong nagkasala na hindi pusakal na kriminal. We apply the exception rather than the rule in this petition for review on certiorari of the decision of the Court of Appeals (CA), affirming with modification that of the Regional Trial Court (RTC) in Quezon City, finding petitioner liable for illegal possession of a firearm. The Facts On July 10, 1996, at around 9:30 a.m., SPO2 Antonio M. Disuanco of the Criminal Investigation Division, Central Police District Command, received a dispatch order2 from the desk officer.3 The order directed him and three (3) other policemen to serve a warrant of arrest4 issued by Judge Ignacio Salvador against petitioner Sr. Insp. Jerry C. Valeroso in a case for kidnapping with ransom.5 After a briefing, the team conducted the necessary surveillance on petitioner, checking his hideouts in Cavite, Caloocan, and Bulacan.6 Eventually, the team proceeded to the Integrated National Police (INP) Central Station at Culiat, Quezon City, where they saw petitioner as he was about to board a tricycle.7 SPO2 Disuanco and his team approached petitioner.8 They put him under arrest, informed him of his constitutional rights, and bodily searched him.9 Found tucked in his waist10 was a Charter Arms, bearing Serial Number 5231511 with five (5) live ammunition.12 Petitioner was then brought to the police station for questioning.13 A verification of the subject firearm at the Firearms and Explosives Division at Camp Crame revealed that it was not issued to petitioner but to a certain Raul Palencia Salvatierra of Sampaloc, Manila.14 Epifanio Deriquito, the records verifier, presented a certification15 to that effect signed by Edwin C. Roque, chief records officer of the Firearms and Explosive Division.16 Petitioner was then charged with illegal possession of firearm and ammunition under Presidential Decree (P.D.) No. 1866,17 as amended. The Information read: That on or about the 10th day of July, 1996, in Quezon City, Philippines, the said accused without any authority of law, did then and there willfully, unlawfully and knowingly have in his/her possession and under his/her custody and control One (1) cal. 38 "Charter Arms" revolver bearing Serial No. 52315 with five (5) live ammo. without first having secured the necessary license/permit issued by the proper authorities. CONTRARY TO LAW. Quezon City, Philippines, July 15, 1996.

(Sgd.) GLORIA VICTORIA C. YAP Assistant City Prosecutor18 With the assistance of his counsel de parte, Atty. Oscar Pagulayan, petitioner pleaded not guilty when arraigned on October 9, 1996.19 Trial on the merits ensued. SPO2 Disuanco and Deriquito testified for the prosecution in the manner stated above. Upon the other hand, the defense version was supplied by the combined testimonies of petitioner Sr. Insp. Jerry C. Valeroso, SPO3 Agustin R. Timbol, Jr. and Adrian Yuson. Petitioner recounted that on July 10, 1996, he was fast asleep in the boarding house of his children located at Sagana Homes, Barangay New Era, Quezon City.20 He was roused from his slumber when four (4) heavily armed men in civilian clothes bolted the room.21 They trained their guns at him22 and pulled him out of the room. They then tied his hands and placed him near the faucet.23 The raiding team went back inside and searched and ransacked the room.24 SPO2 Disuanco stood guard outside with him.25 Moments later, an operative came out of the room and exclaimed, "Hoy, may nakuha akong baril sa loob!"26 Petitioner was told by SPO2 Disuanco that "we are authorized to shoot you because theres a shoot to kill order against you, so if you are planning do so something, do it right now."27 He was also told that there was a standing warrant for his arrest.28 However, he was not shown any proof when he asked for it.29 Neither was the raiding group armed with a valid search warrant.30 According to petitioner, the search done in the boarding house was illegal. The gun seized from him was duly licensed and covered by necessary permits. He was, however, unable to present the documentation relative to the firearm because it was confiscated by the police. Petitioner further lamented that when he was incarcerated, he was not allowed to engage the services of a counsel. Neither was he allowed to see or talk to his family.31 Petitioner contended that the police had an axe to grind against him. While still with the Narcotics Command, he turned down a request of Col. Romulo Sales to white-wash a drug-related investigation involving friends of the said police officer. Col. Sales was likewise subject of a complaint filed with the Ombudsman by his wife. Col. Sales was later on appointed as the head of the unit that conducted the search in his boarding house.32 SPO3 Timbol, Jr. of the Narcotics Command testified that he issued to petitioner a Memorandum Receipt dated July 1, 199333 covering the subject firearm and its ammunition. This was upon the verbal instruction of Col. Angelito Moreno. SPO3 Timbol identified his signature34 on the said receipt.35 Adrian Yuson, an occupant of the room adjacent to where petitioner was arrested, testified that on July 10, 1996, two (2) policemen suddenly entered his room as he was preparing for school.36 They grabbed his shoulder and led him out.37 During all those times, a gun was poked at him.38 He was asked where petitioner was staying. Fearing for his life, he pointed to petitioners room.39 Four (4) policemen then entered the room.40 He witnessed how they pointed a gun at petitioner, who was clad only in his underwear.41 He also witnessed how they forcibly brought petitioner out of his room.42 While a policeman remained near the faucet to guard petitioner, three (3) others went back inside the room.43 They began searching the whole place. They forcibly opened his locker,44 which yielded the subject firearm.45 RTC and CA Dispositions On May 6, 1998, the trial court found petitioner guilty as charged, disposing as follows:

WHEREFORE, the Court hereby finds the accused guilty beyond reasonable doubt of Violation of Section 1 of Presidential Decree No. 1866 as amended by Republic Act No. 8294 and hereby sentences him to suffer the penalty of prision correccional in its maximum period or from 4 years, 2 months and 1 day as minimum to 6 years as maximum and to pay the fine in the amount of Fifteen Thousand Pesos (P15,000.00). The gun subject of this case is hereby ordered confiscated in favor of the government. Let the same be put in trust in the hands of the Chief of the PNP. SO ORDERED.46 Petitioner moved to reconsider47 but his motion was denied on August 27, 1998.48 He appealed to the CA. On May 4, 2004, the appellate court affirmed with modification the RTC disposition. The fallo of the CA decision reads: Verily, the penalty imposed by the trial court upon the accused-appellant is modified to 4 years and 2 months as minimum up to 6 years as maximum. WHEREFORE, with the foregoing MODIFICATION as to the penalty, the decision appealed from is herebyAFFIRMED in all other respects. SO ORDERED.49 His motion for reconsideration50 having been denied through a Resolution dated August 3, 2004,51 petitioner resorted to the present petition under Rule 45. Issues Petitioner raises the following issues for Our consideration: I. THE HONORABLE COURT OF APPEALS COMMITTED SERIOUS ERRORS OF LAW IN AFFIRMING THE CONVICTION OF PETITIONER DESPITE THE ABSENCE OF PROOF BEYOND REASONABLE DOUBT. II. THE HONORABLE COURT OF APPEALS COMMITTED SERIOUS ERRORS OF FACT AND LAW IN SUSTAINING THE LEGALITY OF THE SEARCH AND THE VALIDITY AND ADMISSIBILITY OF THE EVIDENCE OBTAINED THEREFROM DESPITE THE OVERWHELMING PROOF THAT THE SAME IS THE FRUIT OF THE POISONOUS TREE. III. THE HONORABLE COURT OF APPEALS COMMITTED SERIOUS ERRORS OF LAW IN NOT UPHOLDING THE REGULARITY AND VALIDITY SURROUNDING THE ISSUANCE OF THE MEMORANDUM RECEIPTS(SIC) IN FAVOR OF PETITIONER WHICH PROVES HIS INNOCENCE OF THE CRIME CHARGE (SIC).52(Underscoring supplied) Our Ruling In illegal possession of firearm and ammunition, the prosecution has the burden of proving the twin elements of (1) the existence of the subject firearm and ammunition, and (2) the fact that the accused who possessed or owned the same does not have the corresponding license for it.53 The prosecution was able to discharge its burden. The existence of the subject firearm and its ammunition was established through the testimony of SPO2 Disuanco.54 Defense witness Yuson also identified the firearm.55 Its existence was likewise admitted by no less than petitioner himself.56

As for petitioners lack of authority to possess the firearm, Deriquito testified that a verification of the Charter Arms Caliber .38 bearing Serial No. 52315 with the Firearms and Explosives Division at Camp Crame revealed that the seized pistol was not issued to petitioner. It was registered in the name of a certain Raul Palencia Salvatierra of Sampaloc, Manila.57 As proof, Deriquito presented a certification signed by Roque, the chief records officer of the same office.58 The Court on several occasions ruled that either the testimony of a representative of, or a certification from, the Philippine National Police (PNP) Firearms and Explosive Office attesting that a person is not a licensee of any firearm would suffice to prove beyond reasonable doubt the second element of possession of illegal firearms.59The prosecution more than complied when it presented both. The certification is outside the scope of the hearsay rule. The general rule is that a witness can testify only to those facts which he knows of his personal knowledge; that is, which are derived from his own perception.60 Otherwise, the testimony is objectionable for being hearsay.61 On this score, the certification from the Firearms and Explosives Division is an exception to the hearsay rule by virtue of Rule 130, Section 44 of the Rules of Court which provides: Sec. 44. Entries in official records. Entries in official records made in the performance of his official duty by a public officer of the Philippines, or by a person in the performance of a duty specifically enjoined by law, are prima facie evidence of the facts therein stated. It may be true that the contents of said certification are only prima facie evidence of the facts stated there. However, the failure of petitioner to present controverting evidence makes the presumption unrebutted. Thus, the presumption stands. Petitioner, however, raises several points which he says entitles him to no less than an acquittal. The assessment of credibility of witnesses lies with the trial court. First, petitioner says that the seizure of the subject firearm was invalid. The search was conducted after his arrest and after he was taken out of the room he was occupying.62 This contention deserves scant consideration. Petitioners version of the manner and place of his arrest goes into the factual findings made by the trial court and its calibration of the credibility of witnesses. However, as aptly put by Justice YnaresSantiago in People v. Rivera:63 x x x the manner of assigning values to declarations of witnesses on the witness stand is best and most competently performed by the trial judge who had the unmatched opportunity to observe the witnesses and assess their credibility by the various indicia available but not reflected on record. The demeanor of the person on the stand can draw the line between fact and fancy or evince if the witness is telling the truth or lying through his teeth. We have consistently ruled that when the question arises as to which of the conflicting versions of the prosecution and the defense is worthy of belief, the assessment of the trial courts are generally viewed as correct and entitled to great weight. Furthermore, in an appeal, where the culpability or innocence of the accused depends on the issue of credibility of witnesses and the veracity of their testimonies, findings of the trial court are given the highest degree of respect if not finality.64(Underscoring supplied) The trial court found the prosecution version worthy of credence and belief. We find no compelling reason not to accept its observation on this score.

Worth noting is the fact that petitioner is a ranking police officer who not only claims to be highly decorated,65 but have effected a number of successful arrests66 as well. Common sense would dictate that he must necessarily be authorized to carry a gun. We thus agree with the Office of the Solicitor General that framing up petitioner would have been a very risky proposition. Had the arresting officers really intended to cause the damnation of petitioner by framing him up, they could have easily "planted" a more incriminating evidence rather than a gun. That would have made their nefarious scheme easier, assuming that there indeed was one. The pieces of evidence show that petitioner is not legally authorized to possess the subject firearm and its five (5) ammunition. Second, petitioner insists that he is legally authorized to possess the subject firearm and its ammunition on the basis of the Memorandum Receipt issued to him by the PNP Narcotics Command.67 Although petitioner is correct in his submission that public officers like policemen are accorded presumption of regularity in the performance of their official duties,68 it is only a presumption; it may be overthrown by evidence to the contrary. The prosecution was able to rebut the presumption when it proved that the issuance to petitioner of the Memorandum Receipt was anything but regular. SPO3 Timbol, Jr. testified that he issued the Memorandum Receipt to petitioner based on the verbal instruction of his immediate superior, Col. Moreno.69 However, a reading of Timbols testimony on cross-examination70 would reveal that there was an unusual facility by which said receipt was issued to petitioner. Its issuance utterly lacked the usual necessary bureaucratic constraints. Clearly, it was issued to petitioner under questionable circumstances. Failure to offer an unlicensed firearm as evidence is not fatal provided there is competent testimony as to its existence. Third, petitioner claims that the subject firearm and ammunition should have been excluded as evidence because they were not formally offered by the prosecution71 in violation of Section 34, Rule 132 of the Rules of Court.72 We note that petitioner contradicted himself when he argued for the validity of the Memorandum Receipt and, at the same time, for the exclusion in evidence of the subject firearm and its ammunition. Petitioners act may result to an absurd situation where the Memorandum Receipt is declared valid, while the subject firearm and its ammunition which are supposedly covered by the Memorandum Receipt are excluded as evidence. That would have made the Memorandum Receipt useless. In any case, petitioners contention has no leg to stand on. Contrary to petitioners claim, the subject firearm73 and its five (5) live ammunition74 were offered in evidence by the prosecution.75 Even assuming arguendo that they were not offered, petitioners stance must still fail. The existence of an unlicensed firearm may be established by testimony, even without its presentation at trial. InPeople v. Orehuela,76 the non-presentation of the pistol did not prevent the conviction of the accused. The doctrine was affirmed in the recent case of People v. Malinao.77 As previously stated, the existence of the subject firearm and its five (5) live ammunition were established through the testimony of SPO2 Disuanco.78 Yuson also identified said firearm.79 Petitioner even admitted its existence.80 We hasten to add that there may also be conviction where an unlicensed firearm is presented during trial but through inadvertence, negligence, or fortuitous event (for example, if it is lost), it is not offered in evidence, as long as there is competent testimony as to its existence.

Penal and civil liabilities Petitioner was charged with the crime of illegal possession of firearms and ammunition under the first paragraph of Section 1 of P.D. No. 1866, as amended. It provides that "[t]he penalty of reclusion temporal in its maximum period to reclusion perpetua shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any firearm, part of firearm, ammunition or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition." P.D. No. 1866, as amended, was the governing law at the time petitioner committed the offense on July 10, 1996. However, R.A. No. 8294 amended P.D. No. 1866 on July 6, 1997,81 during the pendency of the case with the trial court. The present law now states: SECTION 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition. The penalty of prision correccional in its maximum period and a fine of not less than Fifteen Thousand Pesos (P15,000)shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any low-powered firearm, such as rimfire handgun, .380 or .32 and other firearm of similar firepower, part of firearm, ammunition, or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition: Provided, That no other crime was committed. (Underscoring supplied) As a general rule, penal laws should not have retroactive application, lest they acquire the character of an ex post facto law.82 An exception to this rule, however, is when the law is advantageous to the accused. According to Mr. Chief Justice Araullo, this is "not as a right" of the offender, "but founded on the very principles on which the right of the State to punish and the commination of the penalty are based, and regards it not as an exception based on political considerations, but as a rule founded on principles of strict justice."83 Although an additional fine of P15,000.00 is imposed by R.A. No. 8294, the same is still advantageous to the accused, considering that the imprisonment is lowered to prision correccional in its maximum period84 fromreclusion temporal in its maximum period to reclusion perpetua85 under P.D. No. 1866. Applying the Indeterminate Sentence Law, prision correccional maximum which ranges from four (4) years, two (2) months and one (1) day to six (6) years, is the prescribed penalty and will form the maximum term of the indeterminate sentence. The minimum term shall be one degree lower, which is prision correccional in its medium period (two [2] years, four [4] months and one [1] day to four [4] years and two [2] months).86 Hence, the penalty imposed by the CA is correct. The penalty of four (4) years and two (2) months of prision correccional medium, as minimum term, to six (6) years of prision correccional maximum, as maximum term, is in consonance with the Courts ruling in Gonzales v. Court of Appeals87 and Barredo v. Vinarao.88 As to the subject firearm and its five (5) live ammunition, their proper disposition should be made under Article 45 of the Revised Penal Code89 which provides, among others, that the proceeds and instruments or tools of the crime shall be confiscated and forfeited in favor of the government. WHEREFORE, the Decision of the Court of Appeals dated May 4, 2004 is AFFIRMED in full. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 178546 April 30, 2008

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MUKIM ELING y MAALAC, accused-appellant. DECISION

CHICO-NAZARIO, J.: Appellant Mukim Eling y Maalac assails the Decision1 of the Court of Appeals dated 13 July 2006 in CA-G.R. CR-HC No. 00191-MIN, affirming with modification the Decision2 dated 1 October 2001 of the Regional Trial Court (RTC) of the Ninth Judicial Region, Branch 16, Zamboanga City, in Criminal Case No. 16315. The RTC found appellant guilty beyond reasonable doubt of the crime of Murder. On 7 September 1999, an Information3 was filed before the RTC charging appellant of Murder, the accusatory portion thereof, reads: That on or about September 2, 1999, in the City of Zamboanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with a .45 Caliber pistol bearing Serial No. 652479, by means of treachery and with intent to kill, did then and there willfully, unlawfully and feloniously, suddenly and without any warning, assault, attack and shoot with the use of said weapon that he was then armed with, at the person of MOHAMMAD NUH TUTTOH y HAMIDUL, thereby inflicting upon the latter's person mortal gunshot wound on the fatal part of his body which directly caused his death, to the damage and prejudice of the heirs of said victim; furthermore, there being present an aggravating circumstance in that the crime charged herein was committed with the use of an unlicensed firearm. On 22 October 1999, appellant was arraigned with the assistance of his counsel de oficio. He pleaded "Not Guilty." Thereafter, pre-trial was held, and trial ensued accordingly. Evidence for the prosecution showed that at about 5:45 in the afternoon of 2 September 1999, the brother of the appellant, Alangan Sakandal (Sakandal) and the deceased Mohammad Nuh Tuttoh (Tuttoh) were seated beside each other on a platform or bench at the side of a small nipa hut owned by Tuttoh. The hut was located along the shoreline of Tictabon Island in Zamboanga City. It was situated roughly 10 meters away from Tuttoh's house. The hut has a wide door and walls made of bamboo slats with gaps in between. The walls did not reach up to the ceiling. The floor of the nipa hut was about one meter and 20 centimeters from the ground, while the platform or bench on which Tuttoh and Sakandal were seated was about one meter high from the ground. At that time, the appellant was inside the nipa hut. Crispin Kaluh was standing about four meters away from Tuttoh and Sakandal. While Tuttoh and Sakandal were conversing, Sakandal heard a shot. He saw a pistol poised just above his shoulders. He grabbed the pistol, and it fell. He saw that the man holding the pistol with both hands was his brother, the appellant, who was inside the nipa hut. The appellant shot Tuttoh from behind. Tuttoh was hit on the nape and the bullet exited on his right cheek. After the pistol fell to the ground, the appellant ran away to the seashore. Sakandal took the pistol while Crispin Kaluh chased the appellant, held him, and tied his hands. Tuttoh was already dead when he was brought to the nipa hut, 10 meters away from his house. The cause of his death was discovered to be hemorrhage secondary to gunshot wound. Sakandal testified that in the evening of 2 September 1999, he turned over the gun to Birri Ahagin (Ahagin), the right hand man of Tuttoh. It was a colt .45 cal. pistol with Serial No. 652479. Ahagin confirmed the testimony of Sakandal. According to Ahagin, after receipt of the gun from Sakandal, he filed a report with the Police Detachment and turned the gun over to SPO1 Amadol Nasihul at seven o'clock in the evening of the same day. The prosecution also presented its eyewitness Crispin Kaluh (Kaluh) who testified that he is a seaweed farmer working at the seaweed farm owned by Tuttoh in Tictabon Island.4 Kaluh further testified that at the time of the incident, he was five (5) arms' length away from Tuttoh.5 He saw Tuttoh seated and conversing with Sakandal on the bench near the nipa hut. He suddenly heard a gunshot and saw Tuttoh fall down and die.6 He testified that he saw the appellant shoot Tuttoh from inside the nipa hut.7 Kaluh added that he saw Sakandal grab the pistol from the appellant which caused the latter to run away.8 Kaluh chased the appellant. When he caught up with the appellant, he tied his hands.9 Forensic Chemist P/Sr. Inspector Mercedes Delfin Diestro testified that both hands of the appellant were found positive of gunpowder nitrates.10

Dr. Efren Apolinario, medico-legal doctor of the Zamboanga City Health Office, was presented by the prosecution as an expert witness.11 He testified on the cause of death of Tuttoh, as well as on the postmortem examination he conducted on the cadaver of Tuttoh on the morning of 3 September 1999. He noted that Tuttoh's body sustained a gunshot wound measuring .8 to 1.2 cm. at the back occiput directed also on the right portion between the right upper and the right lower mandibular bone measuring 1.5 inches everted.12 From the size of the wound, he approximated that the firearm used was a .45 caliber.13 He issued a death certificate reflecting therein "hemorrhage secondary to gun shot wound neck, back" as the cause of death of the victim.14 SP02 Jesus Guray Ortega was presented by the prosecution to prove that the appellant had not applied for a license to possess the firearm, nor did he have a license to carry firearm or authorized to carry firearm outside his residence.15 Finally, the prosecution presented as witness, Tuttoh's mother, Jaihan Abu. She testified that Tuttoh was his only son. At the time of Tuttoh's death, he and his wife had five (5) children, and the wife was pregnant with child. The wife had given birth after the demise of Tuttoh. Jaiham Abu further testified that she incurred expenses in connection with the death of her son in the total amount of P54,075.00. She said that in connection with Tuttoh's funeral, they spent 10 sacks of rice in the total amount of P8,500.00. They also slaughtered a cow, and bought cigarettes and fish.16 The appellant was presented as the sole witness for the defense. According to him, at about 5:45 in the afternoon of 2 September 1999, he was sleeping inside the nipa hut.17 He woke up when he found himself being mauled by Tuttoh. According to the appellant, he was mauled by Tuttoh for the purported reason that he was having an affair with the latter's relative.18 Tuttoh hit him on the nape.19 They grappled for the pistol that was being held by Tuttoh.20 While they were in that position, the pistol accidentally fired and Tuttoh was hit.21 Afterwards, he surrendered to a person by the name of Bario.22 After trial, the RTC convicted the appellant of the crime of Murder. The RTC reasoned that Murder was committed by means of treachery because the victim, who was shot at the back with a .45 caliber pistol, was totally unaware.23 The RTC also ruled that the attack was sudden and unexpected and Tuttoh had no chance whatsoever to defend himself or to escape.24 It appreciated the presence of the aggravating circumstance of use of unlicensed firearm which was not offset by any mitigating circumstance.25 On 1 October 2001, the RTC decreed: WHEREFORE, the Court finds accused MUKIM ELING y MAALAC GUILTY BEYOND REASONABLE DOUBT of the crime of Murder, as principal, for the unjustified killing of Mohammad Nuh Tuttoh with the qualifying circumstance of treachery and aggravating circumstance of use of unlicensed firearm and SENTENCES said accused to suffer the penalty of DEATH and its accessory penalties; to pay the heirs of the victim P50,000.00 as indemnity for his death; P54,075.00 as actual damages; P50,000.00 as moral damages; P30,000.00 as exemplary damages; and to pay the costs. Pursuant to the provision of Section 22 of R.A. No. 7659, amending Art. 47 of the Revised Penal Code, let the complete records of this case be forwarded to the Supreme Court for automatic review.26 With the imposition of the death penalty on appellant, the case was elevated to the Supreme Court on automatic review. Pursuant to the Court's ruling in People v. Mateo,27 the case was transferred to the Court of Appeals.28 On 13 July 2006, the Court of Appeals affirmed with modification the appellant's conviction by the RTC. The Court of Appeals ratiocinated in this wise: Culled from the records of this case, the prosecution substantially established that appellant was in fact the assailant and not the assailed. Its eyewitnesses gave an interlocking account of the facts, leading to no other conclusion than that appellant committed a treacherous

assault on the person of the victim. Their testimonies, with intricate attention to details, were narrated in straightforward, categorical and candid manner, thus, worthy of belief and credit. Appellant was positively identified by no less than his older full-blood brother, Alangan Sakandal, as the one who shot the victim to death. The latter was seated beside the victim when appellant shot the victim from behind hitting the victim's nape. After the victim was shot, he tried to grab the gun from appellant. In the course of their struggle for its possession, the gun fell down. Appellant then fled towards the seashore.29 The Court of Appeals similarly appreciated the finding of the RTC that the killing was qualified by treachery. It ruled that the appellant positioned himself without risk to himself from any defense which the victim might have made. However, it disagreed with the penalty of death imposed by the RTC. It argued that on 30 June 2006, Republic Act No. 9346, otherwise known as An Act Prohibiting the Imposition of Death Penalty in the Philippines, took effect. Citing Section 230 thereof, it downgraded the penalty from death to reclusion perpetua and awarded temperate damages in lieu of actual damages. It deleted the award of actual damages for the reason that no receipts were shown to support the claim of expenses incurred for the wake and the burial of the victim. The dispositive portion of the Decision reads: WHEREFORE, premises considered, the instant appeal is DISMISSED for lack of merit and the Decision dated 1 October 2001 of the Regional Trial Court is hereby AFFIRMED WITH MODIFICATION that appellant Mukim Eling y Maalac is found guilty beyond reasonable doubt of the crime of Murder and is hereby sentenced to suffer the penalty of reclusion perpetua in lieu of the death penalty pursuant to Section 2 (a) of R.A. No. 9346 and appellant is directed to pay the heirs of the victim the amount of P50,000.00 as civil indemnity; P50,000.00 as moral damages; P30,000.00 as exemplary damages; and P25,000.00 as temperate damages in lieu of actual damages.31 In his brief, the appellant raises the following assignment of errors, to wit: I THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT OF THE CRIME CHARGED WHEN HIS GUILT WAS NOT PROVEN BEYOND REASONABLE DOUBT. II THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT OF THE CRIME OF MURDER WHEN TRECHERY WAS NOT SUFFICIENTLY PROVEN BY THE PROSECUTION. III THE TRIAL COURT GRAVELY ERRED IN IMPOSING THE SUPREME PENALTY OF DEATH WHEN THE AGGRAVATING CIRCUMSTANCE OF ILLEGAL POSSESSION OF FIREARMS WAS NOT DULY PROVEN.32 For our resolution are the following issues: (1) whether appellant's guilt was proven beyond reasonable doubt; (2) whether treachery was sufficiently proven; and (3) whether the aggravating circumstance of illegal possession of firearms was duly shown. We are unable to depart from the factual findings of the Court of Appeals. Appellant assails the full faith and credit given to the testimony of the witnesses for the prosecution, especially on the testimony of Sakandal. Appellant avers that Sakandal's testimony is marred by inconsistencies considering that he initially stated in categorical terms that he was sitting beside the victim when the latter was shot from behind. Sakandal later testified that he was passing behind the nipa hut where the appellant was sleeping when he saw the latter shoot the victim. We have consistently ruled that on matters involving the credibility of witnesses, the trial

court is in the best position to assess the credibility of witnesses since it has observed firsthand their demeanor, conduct and attitude under grilling examination.33 The trial court has the best opportunity to observe the demeanor of witnesses while on the stand, it can discern whether or not they are telling the truth.34 The unbending jurisprudence is that its findings on the matter of credibility of witnesses are entitled to the highest degree of respect and will not be disturbed on appeal.35 It is well to remind appellant that when the trial court's findings have been affirmed by the Court of Appeals, as in the case at bar, these are generally binding and conclusive upon this Court.36 The jurisprudential doctrine that great weight is accorded to the factual findings of the trial court particularly on the ascertainment of the credibility of witnesses can only be discarded or disturbed when it appears in the record that the trial court overlooked, ignored or disregarded some fact or circumstance of weight or significance which if considered would have altered the result.37 There are no cogent reasons to depart from the findings of the trial court and the Court of Appeals. The alleged inconsistency in the testimony of Sakandal does not negate his eyewitness account that he saw appellant shoot the victim. Even then, witnesses cannot be expected to give a flawless testimony all the time.38 Although there may be inconsistencies in minor details, the same do not impair the credibility of the witnesses, where, as in this case, there is no inconsistency in relating the principal occurrence and the positive identification of the assailant.39 Moreover, minor inconsistencies serve to strengthen rather than diminish the prosecution's case as they tend to erase suspicion that the testimonies have been rehearsed, thereby negating any misgivings that the same were perjured.40 Similarly, we note that the eyewitness Sakandal, who is appellant's brother, was shown to have no ill motive to falsely testify against the appellant. In fact, from the mouth of the appellant himself, it was confirmed that prior to the incident, he was in good relationship with his brother, Sakandal. Moreover, appellant also testified that they were very close to each other, and that they did not have any misunderstanding.41 The same was also true with eyewitness Kaluh who testified against him.

Kaluh was five arms' length away from the scene of the crime. Indeed, the testimonies of Sakandal and Kaluh are a positive identification of appellant as the assailant. These constitute direct evidence.42 Sakandal and Kaluh are eyewitnesses to the very act of the commission of the crime and positively identified the appellant as the offender. On the question of treachery, the RTC supports its findings on the following ratiocination: It is difficult to imagine how the gun could have fired while [appellant] and the victim were grappling for it and hit the victim at the back of the neck and the bullet exited at the victim's right cheek. Moreover, there were no powder burn at the entry wound at the back of the victim's neck indicating that the victim was shot at a distance of more than twenty four (24) inches or two (2) feet, such that the victim could not have been shot while he was grappling for the gun with the accused.43 The Court of Appeals affirmed such findings and found that treachery attended the commission of the crime. A qualifying circumstance like treachery changes the nature of the crime and increases the imposable penalties for the offense.44 Hence, like the delict itself, it must be proven beyond reasonable doubt.45 Treachery can be appreciated when the following requisites are present: (1) the employment of means, method or manner of execution which would ensure the safety of the malefactor from defensive or retaliatory acts on the part of the victim, no opportunity being given to the latter to defend himself or to retaliate; and (2) the means, method, or manner of execution were deliberately or consciously adopted by the offender.46 Appellant was shown to have shot the deceased Tuttoh from behind, hitting him in the nape, and with the bullet exiting the victim's right cheek. During the commission of the crime, the deceased Tuttoh was sitting on a bench or a platform outside the nipa hut. He was conversing with Sakandal. He was unaware of any attack that appellant had planned against him. What existed here was such a sudden and unexpected attack by the appellant and without warning on an unsuspecting victim, depriving Tuttoh of any real chance to defend himself, and thereby ensuring, without risk, its commission.

Anent the issue of the aggravating circumstance of the use of unlicensed firearm, appellant questions the same on the claim that no evidence was shown that he had prior physical possession and/or ownership of the .45 caliber gun before the same was used against the deceased. We are not impressed. When Republic Act No. 8294 took effect on 6 July 1997, the use of an unlicensed firearm was considered merely an aggravating circumstance, if murder or homicide or any other crime was committed with it.47 Two requisites are necessary to establish illegal possession of firearms: first, the existence of the subject firearm; and second, the fact that the accused who owned or possessed the gun did not have the corresponding license or permit to carry it outside his residence. In the case at bar, the existence of the subject firearm was duly established. Secondly, it was ascertained that the appellant who used the subject firearm to commit the crime did not have the corresponding license or permit to carry the gun outside of his residence. Even then, Section 548 of Republic Act No. 8294 enumerates, "unauthorized use of licensed firearm in the commission of the crime" as covered by the term "unlicensed firearm." It was not shown that appellant had the authority to use the firearm. We are in accord with the grant by the Court of Appeals of civil indemnity; however, in accordance with prevailing jurisprudence, we increase the same to P75,000.00. The amount of P75,000.00 as civil indemnity is awarded only if the crime is qualified by circumstances which warrant the imposition of the death penalty.49 Though the penalty imposed on appellant was reduced to reclusion perpetua pursuant to Republic Act No. 9346, civil indemnity to be awarded remains at P75,000.00. We also agree with the award of moral damages in the amount of P50,000.00. We award the same as the circumstances surrounding the untimely and violent death, in accordance with human nature and experience, could have brought nothing but emotional pain and anguish to the victim's family.50

We retain the award of exemplary damages but reduced the amount to P25,000.00 following current jurisprudence.51 Exemplary damages in the amount of P25,000.00 must be awarded, given the presence of treachery which qualified the killing to murder. Article 2230 of the Civil Code allows the award of exemplary damages as part of the civil liability when the crime was committed with one or more aggravating circumstances. The term aggravating circumstance as used therein should be construed in its generic sense since it did not specify otherwise. Notwithstanding the absence of receipts to prove actual damages, we affirm the grant of the Court of Appeals of temperate damages in the amount of P25,000.00, in lieu of actual damages. The award of P25,000.00 in temperate damages in homicide or murder cases is proper when no evidence of burial and funeral expenses is presented in the trial court.52 Under Article 2224 of the Civil Code, temperate damages may be recovered as it cannot be denied that the heirs of the victim suffered pecuniary loss although the exact amount was not proved.53 WHEREFORE, the instant appeal is DENIED. The Decision of the Court of Appeals dated 13 July 2006 in CA-G.R. CR-HC No. 00191-MIN is AFFIRMED with MODIFICATION. Appellant Mukim Eling y Maalac is found GUILTY of the crime of MURDER. The proper imposable penalty would have been death. However, pursuant to Section 2(a) of Republic Act No. 9346, appellant is sentenced to suffer

the penalty of reclusion perpetua without possibility of parole. Appellant is directed to pay the heirs of Mohammad Nuh Tuttoh the amounts of P75,000.00 as civil indemnity; P50,000.00 as moral damages; P25,000.00 as exemplary damages; and P25,000.00 as temperate damages. No costs. SO ORDERED.