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 Decision of the Court of Appeals in CA-G.R. CEB SP No. 00397 dated 17 August 2006 which affirmed the Orders 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 Jose's (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 husband's 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 against petitioners seeking the declaration of "nullity of interest of 5% per day, fixing of interest, recovery of interest payments" 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. Thereafter, at the instance of Carolina, several cases for violation of B.P. Blg. 22 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.

Respondents thereafter filed before the RTC a "Motion for Writ of Preliminary Injunction with Temporary Restraining Order" 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 Order 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 RTC's 3 February 2005 Order. Petitioners elevated the case to the Court of Appeals and questioned the propriety of the RTC's 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. 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. 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.

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. They cite the case of Medel v. Court of Appeals, 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. 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 Appeals wherein the Court allegedly ruled that there is no violation of B.P. Blg. 22 if the dishonored checks have been paid. They claim that since the 5% interest per day was not contained in any written agreement, per Article 1956 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. 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. 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.

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. 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. 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. The nature and policy of B.P. Blg. 22 were aptly enunciated by the Court in Meriz v. People, 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. 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." 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. 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, Medel v. CA and Danao v. Court of Appeals finding 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." 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 complainant's demand letter, 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 checks 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.

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 Decision dated January 23, 2003 and the Resolution dated May 14, 2003 of the Court of Appeals in CA-G.R. CR No. 23802. The appellate court affirmed with modification the Decision 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 22 (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 letter 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) 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. 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. 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. 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), accusedappellant 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. 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? 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, 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. These elements are present in the instant case. Section 191 of the Negotiable Instruments Law 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. 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.

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. 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. Petitioner failed to fulfill this requirement. Next, petitioner claims failure of consideration. Nevertheless, in a letter 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. 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. Prima facie evidence of deceit was established against petitioner with regard to FEBTC Check No. 553615 which was dishonored for insufficiency of funds. The letter 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, 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 two-year 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. 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.

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In a number of cases, 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. 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. 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

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same reason had not the drawer, without any valid cause, ordered the bank to stop payment. 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. 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. 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. 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. 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 Court and Lao v. Court of Appeals 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. Lao was only a minor employee who had nothing to do with the issuance, funding and delivery of checks. 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 2 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, 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."

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To be liable under Section 1 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 commitment 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. 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. 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. 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. 818 (P.D. No. 818). Under Section 1 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. 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.

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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. Subject of this automatic review is the Decision of the Court of Appeals dated 7 August 2006 which affirmed the Judgment 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. 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. 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 buybust team. Sometime in April 1997, Col. Zoila Lachica (Lachica) was tipped off by a female walkin 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. 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. 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,

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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. 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. At 4:00 pm, Saballa and the informant went to Heritage Hotel while the other team members strategically posted themselves within the hotel premises. 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. The informant approached the car while Saballa was left behind holding the black bag containing the boodle money. 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. Instantaneously, a man approached the car, took the boodle money from appellant and ran away. 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. Meanwhile, Lagradilla chased the man who took the boodle money around the parking area of Copacabana Hotel. 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. 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 of shabu. Finding the testimonies of the prosecution witnesses credible as against the bare and selfserving 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

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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. An appeal was directed to this Court. However, in a Resolution dated 20 February 2006, the case was transferred to the Court of Appeals in light of our pronouncement in People v. Mateo. 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. 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, 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 selling shabu to the poseur-buyer in a legitimate buy-bust operation. 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. 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

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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. 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. 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, 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. In People v. Ong and Cabugao v. People 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. 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. 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?

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A I cannot remember the exact date but I think more or less one week before. More or less 1 week. 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.

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 Q A Yes sir, our informant. Now how do you know that this person is an informant? He was introduced to us by our chief, Col. Lachic[a], sir.

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.

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?

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A Q A Q A

One (1) kilo, Your Honor. How much is one kilo worth? I am not aware of the price, Your Honor. How much is one kilo worth? 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.

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. Coballes testified that he saw Saballa hand the boodle money to appellant in exchange for a wrapped object presumed to be shabu. On the contrary, the ultraviolet dusting of the boodle money was conducted but appellant was found negative for fluorescent powder. 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. 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 Permit 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. Instead of using his motorcycle, he chased the suspect on foot. 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, 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, and how much of the boodle money was recovered. 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?

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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. 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 Q A Q A Q A Yes, sir. He was with you on the parking lot to brief you on your operation? Yes. And he was with you all throughout the operation? He was at the Heritage Hotel. Yes. Mr. Witness[,] you as police officer[,] do you know the penalty for perjury? 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 Q He was with us and Col. Danao at the Heritage Hotel at the time. 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.

Lachica denied having heard of the name of appellant until he was arrested: Q A Q Will you tell the Court[,] do you know a certain Anson Ong alias Allan Co? During April? 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. On the other hand, Montes alleged that the name of appellant was mentioned during the briefing held in the office:

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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 [buy-bust] 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. 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.

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 xx Q A Who provided the buy bust money for this buy-bust operation? 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 And to whom did you give this money that will be used in this [buy-bust] operation?

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A Q A

I think Agent Coballes. Do you recall in what denomination were these [buy-bust] money given? I cannot remember.

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. 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. Suffice it to say, a slightest doubt should be resolved in favor of the accused. 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. Costs de oficio. SO ORDERED.

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[G.R. No. 147065, March 14, 2008] JUANITO CHAN y LIM, a.k.a. ZHANG ZHENTING, Petitioner, vs. SECRETARY OF JUSTICE, PABLO C. FORMARAN III and PRESIDENTIAL ANTI-ORGANIZED CRIME TASK FORCE, represented by PO3 DANILO L. SUMPAY, Respondents. DECISION NACHURA, J.: This petition for review on certiorari under Rule 45 seeks to set aside the Resolution 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. The 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. 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. Parreno, 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, PO3 Danilo L. Sumpay, PO3 Rolly S. Ibanez and SPO1 Ronald C. Parreno 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)

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which he received from the poseur-buyer.

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

Thereafter, Chan submitted his Counter-Affidavit 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 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 buybust 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. 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. 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,

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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 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.

On February 9, 2001, the CA denied petitioners motion for reconsideration. 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. Petitioner argues that the CA erred in dismissing the petition for certiorari based on the Courts ruling in Crespo v. Mogul. 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, which recognized the courts authority to nullify findings of probable cause by the prosecutor or investigating judge when due process is violated. 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.

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Petitioner 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. He posits that such presumption cannot prevail over the constitutional presumption of innocence of an accused. Citing People v. Sapal, 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. Respondents, 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. 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, 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. 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. Absent any showing of arbitrariness on the part of the prosecutor or

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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. Simply stated, findings of the Secretary of Justice are not subject to review, unless made with grave abuse of discretion. 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. 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. 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 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. 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. Probable cause need not be based on clear and convincing evidence of guilt, as the investigating officer acts upon

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reasonable belief. Probable cause implies probability of guilt and requires more than bare suspicion but less than evidence which would justify a conviction. 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. 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. 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. 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. 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. 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. They are best left for the trial court to evaluate and resolve after a full-blown trial on the merits. 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. 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. 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

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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. n

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G.R. No. 179036 July 28, 2008 PEOPLE OF THE Plaintiff/Appellee, - versus CARLITO MATEO Accused/Appellant. DECISION CHICO-NAZARIO, J.: Before Us is the Decision 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 information 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, 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). 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, 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 abovenamed 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. Accused-appellant pleaded not guilty to both charges when arraigned on 31 July 2003. 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. y PATAWID PHILIPPINES,

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Thereafter, the cases were consolidated and tried jointly. During the trial, the prosecution presented the following witnesses: (a) Makati AntiDrug 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 defense, on the other hand, presented the lone testimony of the accused. The prosecutions version of the case is as follows: 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 buy-bust 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, 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. PO2 Barrameda informed the accused of the latters constitutional rights, while PO2 Igno asked for the full name of the accused. MADAC Operative Farias marked the pieces of evidence recovered from the accused by placing therein the initials of the accused. The Custodian Officer prepared the list of items taken from the accused and turned over the list to the DEU. 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, which later confirmed the presence of Methylamphetamine hydrochloride. Expectedly, accused-appellant presented a disparate narration of the incident: Accused-appellant claimed that at around 9:00 oclock in the evening of 28 June 2003, while he was walking along Kalayaan Avenue, Makati City, on his way to his live-in partners 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

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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. After trial, the court a quo found accused-appellant guilty as charged. The dispositive portion of the trial courts 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. 032338 for said agencys appropriate disposition.

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.

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 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 and the People 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:

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I THE COURT A QUO GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT OF THE CRIMES CHARGED DESPITE THE PROSECUTIONS 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 courts 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. 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. 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, which was later confirmed by a chemical analysis to be shabu. 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 Fariass 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, PROS. BAGAOISAN sir.

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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

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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 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. next?

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 Alias Ato? WITNESS I placed markings there, sir. PROS. BAGAOSAN: What markings did you place in this transparent plastic sachet. from

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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?

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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 identify the same? able to

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 markings stands for? WITNESS Carlito Mateo Patawid, sir PROS. BAGAOISAN this

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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 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 Honor

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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.

We agree with the Court of Appeals that the foregoing testimony of MADAC Operative Farias establishes beyond reasonable doubt accused-appellants 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. Accused-appellants 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. A defense of denial which is unsupported and unsubstantiated by clear and convincing evidence becomes negative and selfserving, deserving no weight in law, and cannot be given greater evidentiary value over convincing, straightforward and probable testimony on affirmative matters. Denial is an inherently weak defense which must be supported by strong evidence of non-culpability to merit credibility. We further reject accused-appellants 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. 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 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.

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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. D777-038, to wit: A-1 (CMP) = 0.10 g A-2 (CMP-1) = 0.05 g. A-3 (CMP-2) = 0.03 g A-4 (CMP-3)= 0.01g A-5 (CMP-4)=0.01 g A-6 (CMP-5)= 0.03g A-7 (CMP-6)=0.04g 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. Bagaoisan And what did you do with the dangerous drugs subject matter of these cases? A We brought the same to the PNP Crime Laboratory for examination, sir.

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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.

Im 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 Im 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

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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 A Q A Q No sir, only the exchange. After you have arrested the accused, where did you bring him? 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? We brought the same to PNP Crime Laboratory for examination, sir.

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. 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. 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. 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).

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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. 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. 032338 shall be twelve (12) years and one (1) day, as minimum, to twenty (20) years, as maximum. No costs.

SO ORDERED.

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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 of the Court of Appeals in CA-G.R. CR-H.C. No. 01344 dated 29 December 2006 which affirmed with modification the Decision 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 and 11, 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. 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. 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 and (2) PO1 Randy Llanderal, 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

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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, was given by P/Chief Insp. Santiago to PO1 Cosme who placed his initials 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 prearranged 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 sold to PO1 Cosme was marked "JCC," while the two plastic sachets 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. Per Physical Sciences Report No. D-1217-03, the specimens 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. 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.

For the defense, Reynaldo Reyes, Antonio San Pedro, Maricris Manoles and the appellant took the witness stand.

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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 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 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, 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.

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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 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 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 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. 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:

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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. 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 frameup 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. With the filing thereof, the trial court ordered the elevation of the entire records of the case to the Court of Appeals. 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. C-69157 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. Appellant filed a Motion for Reconsideration of the Court of Appeals decision which the appellate court denied in its Resolution dated 18 April 2007. Appellant filed a Notice of Appeal notifying the Court of Appeals of her intention to appeal her conviction before the Supreme Court. In our Resolution 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. 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.

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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 self-serving 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. 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. The rule finds an even more stringent application where the said findings are sustained by the Court of Appeals. 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. 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. Said statement was confirmed by appellant but was contradicted by San Pedro. 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. 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

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court and who testified on the facts and circumstances of the sale and delivery of the prohibited drug. 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. 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.

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 poseur-buyer. 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 of Republic Act No. 9165, Section 21 thereof was also violated by the buy-bust 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, 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 been procured in violation of his constitutional right against illegal arrest.

The argument is specious.

xxxx

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

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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 render an accused's arrest illegal or the items seized/confiscated from him inadmissible. What is of utmost importance is the preservation of the integrity and the evidentiary value of the seized items, as the same would be utilized in the determination of the guilt or innocence of the accused. In the 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. 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. 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? A I was with the confidential informant and PO1 Randy Llanderal was just a distance away from us, sir. Q And how about the other members of the team? A They were in the van, sir. Q Where did you do together with the informant? A We proceeded to where Alias Inday was, sir.

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Q A Q A Q A Q A Q A Q A Q A Q A Q A Q A Q A

Q A Q A Q Court Q From where in relation to the person of Inday? A She was still holding the money, your Honor. 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. All these elements have been established. PO1 Llanderal testified: QYou started the buy bust operation at about 8:00 o'clock in the evening of December 17, 2003? QWhat did your team do? AMe and PO1 Cosme alighted from the van together with the informant. QWhere did you proceed? APo1 Cosme proceeded to the place where Inday was standing together with the informant. QHow far were you from them referring to Cosme and the informant? AI hid near the parked jeep around five (5) meters away from them. QAnd then what did you do with the distance of five (5) meters? AWe were observing them and their actions. QWhere were you positioned then in that distance of five (5) meters away? AI was inside the passenger jeepney.

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 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 by your informant to Alias Inday? 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? 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?

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Q-

Was there anything blocking your sight to the place of Cosme and the informant and also the place of Inday? AThere was nothing blocking my sight. QWhat did you observe if any? AI saw PO1 Cosme introduced by the asset to Inday and I saw them talking sir. QAnd then what else did you observe? AThey were talking and I overheard Inday asking how much, sir. QAnd what was the reply of PO1 Cosme if you hear it? AThat I will buy "kalahati". Court: How far were you when you overheard the transaction between Cosme and the accused? AI was five (5) meters away, sir. Court: You were only five meters away? AYes, sir. Court: Why, were you hiding at that time? AI was hiding but I can see their transaction, sir. Court: You mean to say from the place where you were located at that time you can overheard their transaction? AYes, your Honor the buying and handing. QWhat do you mean you saw the handing of Cosme the extending of money? AYes, your Honor. QDid you see also the accused counting the money she allegedly received? AAfter 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. Court: Of course you did not if there were two, 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. QAfter she put back the two (2) plastic sachets to her pocket, what then transpired? AThen PO1 Joel Cosme scratched his ear as pre-arranged signal. QAfter seeing the pre-arranged signal, what did you do? AI slowly approached them sir. QWhat did you do then after approaching them? AWhile I was approaching them, PO1 Cosme identified himself to Alias Inday and Alias Inday was arrested. QHow about you, what did you do? AAnd upon seeing PO1 Joel Cosme arresting Alias Inday, I requested Aling Inday to pull out her pocket. QAnd what is the reaction of Alias Inday when you asked her to unload everything in her pocket? AShe uttered something that she does not know anything. QAnd then? AI ordered her to "ilabas mong lahat ang nasa iyong bulsa." QAnd then? AAfter she pulled out her hand, I saw two (2) plastic sachets as far as I know it contained shabu. QAnd then what did you do upon seeing plastic sachets taken by her from her pocket which you suspect to be shabu? AWe informed her that she is being arrested. 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

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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. 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. 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. 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. 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. 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. 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, 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. The statute, in prescribing the range of penalties imposable, does not concern itself with the amount of dangerous drug sold by an accused. 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.

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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.

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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 of the Court of Appeals in CA-G.R. CR No. 02392, which affirmed the January 12, 2004 Decision 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 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. 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 pretrial 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.

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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. 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. 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. 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

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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. 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. 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. 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 selfserving 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. As to the alleged inconsistencies in the testimony of PO1 Natividad, the same refer to minor

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and trivial matters which serve to strengthen, rather than destroy, the credibility of a witness. 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. 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. 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.

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G.R. No. 181747 September 26, 2008 PEOPLE OF Plaintiff/appellee, - versus NARCISO AGULAY Accused/Appellant. y LOPEZ, THE PHILIPPINES,

DECISION CHICO-NAZARIO, J.: For Review under Rule 45 of the Revised Rules of Court is the Decision dated 31 August 2007 of the Court of Appeals in CA-G.R. CR No. 01994 entitled, People of the Philippines v. Narciso Agulay y Lopez, affirming the Decision 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.

When arraigned on 23 September 2002, accused-appellant pleaded not guilty. 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-SDEU-02 was made and signed by Police Inspector (P/Insp.) Palaleo Adag dated 24 August 2002.

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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 gm

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. 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

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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. 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. Accusedappellant 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.

Accused-appellant filed his Notice of Appeal with Motion to Litigate as Pauper Litigant on 7 March 2006. Accused-appellant filed his appellants brief 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.

Petitioner elevated the case to this Court via Notice of Appeal dated 21 September 2007. In its Resolution dated 2 April 2008, this Court resolved to:

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(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 ACCUSEDAPPELLANT 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.

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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.

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. He narrated the events which took place the night accused-appellant 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:

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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:

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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.

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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?

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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.

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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:

69

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.

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:

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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?

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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.

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 well-established rule that an arrest made after an entrapment operation does not require a warrant inasmuch as it is considered a valid warrantless arrest, in line with the provisions of Rule 113, Section 5(a) of the Revised Rules of Court, to wit:

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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. If carried out with due regard for constitutional and legal safeguards, a buy-bust operation deserves judicial sanction. There are eight (8) instances when a warrantless search and seizure is valid, to wit:

(1) consented searches; (2) as an incident to a lawful arrest; (3) searches of vessels and aircraft for violation of immigration, customs, and drug laws; (4) searches of moving vehicles; (5) searches of automobiles at borders or constructive borders; (6) where the prohibited articles are in plain view; (7) searches of buildings and premises to enforce fire, sanitary, and building regulations; and (8) stop and frisk operations.

Considering that the legitimacy of the buy-bust operation is beyond question, the subsequent warrantless arrest and warrantless search and seizure, were permissible. The search, clearly being incident to a lawful arrest, needed no warrant for its validity. Thus, contrary to accused-appellant's contention, the contraband seized from him, having been obtained as a result of the buy-bust operation to which the defense failed to impute any irregularity, was correctly admitted in evidence. Noteworthy is the fact that prior to the dispatch of the entrapment team, a pre-operation report was made bearing Control No. 24SDEU-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 accusedappellant. The prosecutions failure to submit in evidence the required physical inventory and photograph of the evidence confiscated pursuant to Section 21, 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, this Court held that what is of utmost importance is the preservation of the integrity and the evidentiary value of the seized items, as the same would be utilized in the determination of the guilt or innocence of the accused. In the instant case, we find the integrity of the drugs seized intact, and there is no doubt that the three sachets of drugs seized from accused-appellant were the same ones examined for chemical analysis, and that the crystalline substance contained therein was later on determined to be positive for methylamphetamine hydrochloride (shabu). The defense, in fact, admitted the existence and authenticity of the request for chemical analysis and the subsequent result thereof: FIS. JURADO:

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Chemist Engr. Jabonillo is present your honor. COURT: Any proposal for stipulation? FIS. JURADO: That there is letter request for examination of white crystalline substance marked as follows: A (pH1); B (pH2) and C (pH3)? ATTY. QUILAS: Admitted your honor. FIS. JURADO: As a result of the said qualitative examination chemist issued a chemistry report No. D-1020-2002? ATTY. QUILAS: Admitted your honor. FIS. JURADO: In view of the admission your honor, may we request that Letter request dated August 25, 2002 be marked as Exhibit D and Chemistry Report No. D1020-2002 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.

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:

74

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.

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:

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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:

76

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. 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. Accused-appellants allegation that he is a victim of a frame-up, which has been held as a shop-worn defense of those accused in drug-related cases, is viewed by the Court with disfavor. Like the defense of alibi, frame-up is an allegation that can easily be concocted. 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. Absent any proof of motive to falsely accuse him of such a grave offense, the presumption of regularity in the performance of official duty and the findings of the trial court with respect to the credibility of witnesses shall prevail over that of the accused-appellant. 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 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. 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?

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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.

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 accused-appellants 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.

This Court, thus, is in agreement with the trial court in finding that:

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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). 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, 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 poseurbuyer and the pusher, the offer to purchase, the promise or payment of the consideration until the consummation of the sale by the delivery of the illegal drug subject of the sale. The manner by which the initial contact was made, whether or not through an informant, the offer to purchase the drug, the payment of the buy-bust money, and the delivery of the illegal drug, whether to the informant alone or the police officer, must be the subject of strict scrutiny by courts to insure that law-abiding citizens are not unlawfully induced to commit an offense. x x x.

It bears to point out that prosecutions of cases for violation of the Dangerous Drugs Act arising from buy-bust operations largely depend on the credibility of the police officers who conducted the same, and unless clear and convincing evidence is proffered showing that the members of the buy-bust team were driven by any improper motive or were not properly performing their duty, their testimonies on the operation deserve full faith and credit. The law presumes that an accused in a criminal prosecution is innocent until the contrary is proved. 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. 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.

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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. 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 non-compliance 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 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.

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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. 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? Yes sir. 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? Yes sir. Did you make inventory of the confiscated items? Yes sir it is with the police investigator.

A: Q:

A: Q: A:

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. Bano and in People v. Miranda, 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 personally made the markings RH (representing his initials) on the three sachets, the inventory 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. The request for laboratory examination and transfer of the confiscated sachets to

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the PNP crime laboratory was prepared by another officer, PO2 Gulferic, the designated officeron-case. 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. 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. 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 accused-appellant 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, 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. 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

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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. 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 crossexamination. 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. 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 accusedappellant, the trial court relied heavily on the police officers testimonies that what had actually transpired was a buy-bust 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

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

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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. 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 accusedappellant, it will not allow their testimonies to be overcome by the self-serving claim of frameup. 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. 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.

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An examination of the Information reveals that accused-appellant was charged with the unauthorized sale and delivery of dangerous drugs consisting of twenty-five hundredths (0.25) gram of methylamphetamine hydrochloride (shabu). From the testimonies of the prosecution witnesses, only one sachet was sold and delivered to the poseur-buyer, PO2 Herrera. The two other sachets 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 drugs 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.

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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 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 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." 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 heatsealed 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. Police Chief Suan immediately assembled a team to conduct a buy-bust operation composed of Inspector Arsenal, SPO1 Cadoy, SPO1 Bernardo, SPO1 de los Santos, PO1 Velasquez and PO2 San Jose.

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SPO1 Cadoy was designated as the poseur-buyer, while SPO1 Bernardo was assigned as one of the back-ups of the former. 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. 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. The confidential informant alighted from the vehicle and walked towards San Fernando Street. When the informant returned, he was accompanied by Ching who was carrying with him a green bag bearing the name Prudential Bank. The confidential informant introduced SPO1 Cadoy to Ching and told the latter that the former wanted to buy shabu. 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." 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 attache case to Ching. As soon as the money was in Ching's possession, SPO1 Cadoy executed the pre-arranged signal by removing his hat. 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. 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. 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-

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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, Penaranda 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 buybust 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 Penaranda Street. Inspector Arsenal, however, clarified that after Ching was arrested at the

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gasoline station in San Fernando Street, the team brought him to the corner of Penaranda 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 Penaranda 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.

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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. 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.

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. 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. 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

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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 vis-a-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. 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. Thus, appellate courts will not disturb the credence, or lack of it, accorded by the trial court to the testimonies of witnesses. 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. 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. 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 San Fernando St., Binondo, Manila, what happened, if any, Mr. Witness? A: When we arrived at San Fernando St., we saw alias Willy. I was introduced to him by the informant as the one who will buy shabu. Q: How many minutes were you there when you were introduced to this alias Willy? Before you were introduced, how many minutes were you there at the place? A: For a while only Sir, because when we arrived, Alias Willy was already there waiting for us, Sir. Q: Where were you introduced? In what specific location, at San Fernando St.? A: At the side of a gasoline station along San Fernando St. xxxx Q: And was he carrying something or not, Mr. Witness? A: He was carrying a bag, Sir. Q: What happened after you were introduced to Alias Willy by the informant? A: Alias Willy was talking like "parang barok at gusto niyang Makita ang pera." That is what I understood. Q: Did you show the money to him? xxxx A: Yes, sir. I showed him the money, genuine and the boodle money I was carrying. COURT:

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You mean to say, you showed the money to Alias Willy without even telling him the quantity of shabu you would buy? A: We had a previous agreement, your Honor, that three (3) kilos of shabu will be bought from him. xxx. COURT: Who made that previous arrangement? A: The informant who talked with him earlier, your Honor. xxxx Q: After you had shown the buy-bust money to alias Willy, what did Alias Willy do, if any? A: After I had shown the buy-bust money to Alias Willy and he was convinced, then, he handed to me, stating "eto na ang tatlong (3) kilo." xxxx Q: You said, he handed the bag to you. Isn't it? 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. Q: Did he comply with your request that the same be shown to you? A: Yes, Sir. Q: What was shown to you, Mr. Witness? A: The three (3) separate plastic pack of one kilo each pack was shown to me. Q: 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? A: Yes, sir. Q: xxx. You said, it was shown to you. How was it shown to you, Mr. Witness? A: When I told him, let me see, then, he opened the bag and showed to me the 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? A: I will see if I can recognize it. Q: 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? A: This is the one, Sir. Q: 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? 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? A: I told him the drugs is okay, so, I gave him the money and he gave me the three (3) plastic bags (nagkaliwaan kami). Q: 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? xxxx A: I placed my initial, sir. xxxx Q: The letter AFC, who placed this marking? A: My initial, Sir. xxxx Q: And above the initial AFC, the bigger initial AFC appears a signature. Could you tell us

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A: xxxx Q:

who placed this marks and the signature? That is my signature, Sir.

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? A: I removed my hat as our pre-arranged signal. Q: What happened after giving your pre-arranged 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. 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 buy-bust operations, thus: Q: On October 19, 1998, can you tell where were you? A: I am at the office. xxxx 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. xxxx Q: Do you know what is that all about? A: Selling arrangement with drug dealer they mentioned a certain Willy. Q: What happened after you were given the arranged drug deal? A: After receiving the information I gave my men briefing regarding the drug transaction Q: Who were your men? A: I am the team leader, Arsenal, Cadoy, Velazquez, San Luis, Bernardo and others. Q: Who was designated as the poseur-buyer? A: During that briefing, Cadoy was the poseur-buyer. Q: How about his back-up? A: I remember SPO1 Bernardo was one of the back-up of Cadoy on the buy bust operation. xxxx Q: What happened thereafter after the briefing if any? A: 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. Q: Was there money involved in this transaction? A: 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. xxxx Q: Now aside from the genuine seven P1,000.00 peso bill, were there any other money

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A: Q: A:

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 was given to SPO1 Cadoy. The pre-arranged 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. Where did you position yourself, your car, Mr. witness? I position my car near the Binondo church and contacted thru the radio. 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 buy-bust? I heard it was already consummated. 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. 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 our office. Now, could you tell us where were you on October 19, 1998? At the office, 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.

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

xxxx Q: A:

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

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

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

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

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

xxxx Q: A:

Now you said you went there. What happened when you reached that place? 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. 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 exchange the boodle money with the goods from the accused and after exchanging, SPO1 Cadoy made the pre-arranged signal. Q: What was the pre-arranged signal? A: SPO1 Cadoy took off his hat. xxxx Q: While watching the two transacted xxx, where were you at the precise moment? A: We were on board our vehicle sir. xxxx Q: Now, after SPO1 Cadoy made the pre-arranged signal by removing his hat, what did you do if any Mr. witness? A: 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. 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

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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. It is often utilized by law enforcers for the purpose of trapping and capturing lawbreakers in the execution of their nefarious activities. 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., the pedicab 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. Indeed, drug pushers have become increasingly daring, dangerous and, worse, openly defiant of the law. 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

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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. 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. 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. 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. 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. Forensic Chemist Marilyn D. Dequito personally received from PO1 Pascua the subject specimens. 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. In the instant case, the report of Forensic Chemist Marilyn D. Dequito shows that the three (3)

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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 be reclusion 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, is AFFIRMED in toto. SO ORDERED.

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G.R. No. 179150, June 17, 2008 PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. DELIA BAYANI Y BOTANES, ACCUSEDAPPELLANT. DECISION CHICO-NAZARIO, J.: Appellant Delia Bayani y Botanes assails the Decision of the Court of Appeals dated 20 December 2005 in CA-G.R. CR-H.C. No. 00310, affirming the Decision 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, 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 Information 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 above-named 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 de oficio, was arraigned and she pleaded "Not guilty." Thereafter, a pre-trial conference was held, and trial ensued accordingly. 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-hundred-peso bills on top as buy-bust money. At around 10:30 in the morning of the same day, PO3 Bernardo and the informant went in front of the appellant's 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 shabu 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 appellant's right hand, apprehended her, and identified himself as a police officer. 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. 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.

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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. 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. Appellant's seventeen-year-old son, Dan Jefferson, corroborated his mother's testimony. He recounted that he was about to leave their house when five men barged into their house and went straight to his mother's 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. 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. The two sachets of shabu were likewise presented and marked in court as Exhibits "G" and "H." The RTC gave full credence to PO3 Bernardo's 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 appellant's apprehension. On the other hand, the RTC found the testimony of appellant's 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. 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. 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 RTC's 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 appellant's 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

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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 appellant's guilt, where their testimonies would merely repeat the testimony of the poseur-buyer. 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. 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 Bernardo's 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. 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." 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 officer's 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 buybust operations. The sale of contraband is a kind of offense habitually committed, and the solicitation simply furnishes evidence of the criminal's course of conduct. 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. 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

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from using the powers of government to beguile innocent but ductile persons into lapses that they might otherwise resist. 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. Smith's 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. 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. 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. 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. 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

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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. The rule finds an even more stringent application where said findings are sustained by the Court of Appeals. 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 son's testimony even more suspect, considering that his statement that five men barged into their house was belied by appellant's 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. 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 latter's 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. Contrary to the appellant's 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. 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.

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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 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 01095. The CA affirmed the April 14, 2005 Decision 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. The appellant pleaded not guilty to the charge. 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 preoperational 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. 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.

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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). 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. [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." 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

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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. 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. 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. Nida testified that she was at the kitchen of the appellant's house doing the laundry between 2:00-3:00 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. 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. 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 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." 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. 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

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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. 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

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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. 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 and of the accused facing a criminal charge are safeguarded. We expressed this concern in People v. Tan, 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 noncompliance 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: After I received [sic] I scratched my head. Q: What is the purpose? A: Pre-arrange[d] signal. Q: After that what happened? A: They swooped down in the scene. Q: What happened after that? A: I grab [sic] his right hand. Q: When you grabbed his right hand what did you tell him? A: I introduced myself as Police Officer. Q: Then after that what happened next? A: I grabbed the accused and informed him of his constitutional right. Q: After informing of his constitutional right what happened Mr. Witness?

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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? A: We turn [sic] him over to the Desk Officer. Q: What did you turn over? A: The accused and the evidences, the plastic shabu sir. Q: Before you turn over that plastic sachet Mr. Witness, what did you put there? A: I put my initial and initial of the accused. Q: If that transparent plastic sachet is shown to you, can you identify that Mr. Witness? A: Yes, sir. Q: Showing to you this plastic sachet Mr. Witness, what can you say to that transparent plastic sachet? A: 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 [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.

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

The "chain of custody" over the confiscated items was not proven

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Under Section 5, Article II 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. 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. 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. 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. 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 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: We brought him to our station. Q: How about the transparent plastic sachet, where is it? A: It is in my possession. Q: How about the buy-bust money in the amount of P100.00? A: I recovered it from the right pants pocket. Q: Now you said that you brought the accused to the Police Station, what happened to the Police Station? A: We turn him over to the Desk Officer. Q: What did you turn over? A: The accused and the evidences, the plastic shabu sir. Q: Before you turn over that plastic sachet Mr. Witness, what did you put there? A: I put my initial and initial of the accused. xxxx Q: 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?

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A:

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. xxxx 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 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.

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In People v. Orteza, 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 and People v. Santos, 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

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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 and on allegations of robbery or theft. 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, the inventory and photography of the seized items must be made in accordance with Sec. 2 of Board Resolution No. 1, Series of 2002, 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, 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 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. In People v. Canete, 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

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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. 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.

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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 dated April 28, 2006 of the Court of Appeals in CA-G.R. CR-H.C. No. 01700. The appellate court affirmed the Decision 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 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 both dated December 2, 2002 that led to Merlie's convictions are as follows: Criminal Case No. 02-3568 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 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

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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. 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. 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. 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. 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. 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 years and one day to twenty years and to pay a fine of P300,000.00; and

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3. To pay the costs. Let the three 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. Merlie appealed. In view of our ruling in People v. Mateo, this case was referred to the Court of Appeals. 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. 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 buy-bust 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. 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. 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. 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. 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. Moreover, the OSG maintains that the trial court imposed the proper penalty for the crime charged. 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.

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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. 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: Mr. Witness, how did you come to know the accused in this particular case, Merlie Dumangay? A: Through our informant. Q: And when did that informant go to your office? A: November 29, 2002 at 7:00 p.m. Q: [A]nd what was the information given to your office by the informant? A: That [a] certain Merlie was engaged in selling prohibited drugs. Q: And after receiving such information Mr. Witness, do you recall if your office did [anything] to the information? A: Yes sir. Q: What Mr. Witness? A: Our office called up ... the DEU, Makati police. Q: Do you know the reason Mr. [W]itness why your office has to call up the DEU office? A: [Y]es sir. Q: For what particular purpose Mr. Witness? Why is there a need to call DEU Mr.

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

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 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? A: There was sir. Q: Against whom was the buy bust operation Mr. Witness? A: I could not recall sir. Q: Do you know if [a] buy bust operation was in fact conducted on November 29, 2002? A: Yes sir, there was. Q: Do you recall if somebody was arrested as a result of the buy bust operation Mr. Witness? A: A: Yes sir. Q: Who is that particular person? A: Merlie Dumangay sir. Q: 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: 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? A: Yes sir. Q: If that Pinagsanib na Salaysay ng Pag-aresto will be shown to you, will you be able to identify the same? A: Yes sir. Q: 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? A: Yes sir. xxxx FISCAL MORENO: Q: Have you read the contents of this Pinagsanib na Salaysay ng Pag-aresto written in Tagalog? A: Yes sir. Q: [D]o you affirm and confirm as to the truthfulness of the allegations contained in this Pinagsanib na Salaysay ng Pag-aresto? A: 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. (Emphasis supplied.) Barbosa, PO1 Jaime Laura, MADAC members Romeo Lazaro and Marvin Cruz, in the sworn Pinagsanib na Salaysay ng Pag-aresto, recounted the details of the buy-bust operation. They stated therein that acting on confidential information, a team composed of MADAC and DEU

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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. 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. The inconsistencies do not detract from the fact that Barbosa positively identified her in open court. 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. 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. Contrary to appellant's contention, the informant was present during the entrapment. 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. 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. 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. 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, 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. 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.

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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.

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G.R. No. 178876 June 27, 2008 PEOPLE OF THE PHILIPPINES, PlaintiffAppellee, - versus ALFREDO CONCEPCION y CLEMENTE and HENRY CONCEPCION y CLEMENTE, Accused-Appellants. DECISION CHICO-NAZARIO, J.: On appeal before Us is the Decision 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 2005 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, 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.

When arraigned, appellants and accused Dela Cruz pleaded not guilty to the crime charged. The prosecution presented two witnesses: Police Officer (PO2) Peter Sistemio and PO2 Arlan Arojado, 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

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leader; PO2 Sistemio as the poseur-buyer; 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. PO2 Sistemio also heard someone say, Magandang klase yang stuff na yan. 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 sachets given by appellant Alfredo Concepcion to PO2 Sistemio, and the other one 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 request 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. 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. 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, appellants and accused Dela Cruz, with leave of court, filed their respective demurrers to evidence, which the trial court denied on 1 March 2005 for lack of merit. 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

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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.

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 Abreza) 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. She then went to the police station of Sta. Maria, Bulacan, to check if the PDEA coordinated with them. She claims a certification 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. 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

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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.

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. 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. In its decision dated 18 May 2007, the Court of Appeals totally agreed with the trial court. It disposed of the case as follows:

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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.

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). 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. 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. 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 ACCUSEDAPPELLANTS 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 ACCUSEDAPPELLANTS 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.

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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, 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. 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 buybust by prosecution witnesses PO2 Sistemio and PO2 Arojado, as well as nonpresentation of the marked boodle money which supposedly disproves the sale. 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 buy-bust 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

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information has been filed, the accused arraigned, trial commenced and completed, and a judgment of conviction rendered. 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 buybust 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. 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. 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. 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 back-up, 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. The rule finds an even more stringent application where said findings are sustained by the Court of Appeals. 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.

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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. A prior surveillance, much less a lengthy one, is not necessary especially where the police operatives are accompanied by their informant during the entrapment. Flexibility is a trait of good police work. In the instant case, the entrapment or buy-bust 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 buybust 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. 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. 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. 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 above-mentioned, 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. 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. 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

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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 prearranged 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. 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. 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. 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. 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 sachets were sold and delivered to the poseur-buyer. The third sachet 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 drugs 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.

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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. The statute, in prescribing the range of penalties imposable, does not concern itself with the amount of dangerous drug sold by an accused. 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.

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G.R. No. 164815 September 3, 2009 SR. INSP. JERRY C. VALEROSO, Petitioner, - versus COURT OF APPEALS and PHILIPPINES, Respondents. RESOLUTION NACHURA, J.: For resolution is the Letter-Appeal of Senior Inspector (Sr. Insp.) Jerry C. Valeroso (Valeroso) praying that our February 22, 2008 Decision and June 30, 2008 Resolution be set aside and a new one be entered acquitting him of the crime of illegal possession of firearm and ammunition. The facts are briefly stated as follows: Valeroso was charged with violation of Presidential Decree No. 1866, committed as follows: 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. When arraigned, Valeroso pleaded not guilty. Trial on the merits ensued. PEOPLE OF THE

During trial, the prosecution presented two witnesses: Senior Police Officer (SPO)2 Antonio Disuanco (Disuanco) of the Criminal Investigation Division of the Central Police District Command; and Epifanio Deriquito (Deriquito), Records Verifier of the Firearms and Explosives Division in Camp Crame. Their testimonies are summarized as follows: On July 10, 1996, at around 9:30 a.m., Disuanco received a Dispatch Order from the desk officer directing him and three (3) other policemen to serve a Warrant of Arrest, issued by Judge Ignacio Salvador, against Valeroso for a case of kidnapping with ransom. After a briefing, the team conducted the necessary surveillance on Valeroso checking his hideouts in Cavite, Caloocan, and Bulacan. Eventually, the team members proceeded to the Integrated National Police (INP) Central Police Station in Culiat, Quezon City, where they saw Valeroso about to board a tricyle. Disuanco and his team approached Valeroso. They put him under arrest, informed him of his constitutional rights, and bodily searched him. They found a

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Charter Arms revolver, bearing Serial No. 52315, with five (5) pieces of live ammunition, tucked in his waist. Valeroso was then brought to the police station for questioning. Upon verification in the Firearms and Explosives Division in Camp Crame, Deriquito presented a certification that the subject firearm was not issued to Valeroso, but was licensed in the name of a certain Raul Palencia Salvatierra of Sampaloc, Manila. On the other hand, Valeroso, SPO3 Agustin R. Timbol, Jr. (Timbol), and Adrian Yuson testified for the defense. Their testimonies are summarized as follows: On July 10, 1996, Valeroso was sleeping inside a room in the boarding house of his children located at Sagana Homes, Barangay New Era, Quezon City. He was awakened by four (4) heavily armed men in civilian attire who pointed their guns at him and pulled him out of the room. The raiding team tied his hands and placed him near the faucet (outside the room) then went back inside, searched and ransacked the room. Moments later, an operative came out of the room and exclaimed, Hoy, may nakuha akong baril sa loob! Disuanco informed Valeroso that there was a standing warrant for his arrest. However, the raiding team was not armed with a search warrant. Timbol testified that he issued to Valeroso a Memorandum Receipt dated July 1, 1993 covering the subject firearm and its ammunition, upon the verbal instruction of Col. Angelito Moreno. On May 6, 1998, the Regional Trial Court (RTC), Branch 97, Quezon City, convicted Valeroso as charged and sentenced him to suffer the indeterminate penalty of four (4) years, two (2) months and one (1) day, as minimum, to six (6) years, as maximum. The gun subject of the case was further ordered confiscated in favor of the government. On appeal, the Court of Appeals (CA) affirmed the RTC decision but the minimum term of the indeterminate penalty was lowered to four (4) years and two (2) months. On petition for review, we affirmed in full the CA decision. Valeroso filed a Motion for Reconsideration which was denied with finality on June 30, 2008. Valeroso is again before us through this Letter-Appeal imploring this Court to once more take a contemplative reflection and deliberation on the case, focusing on his breached constitutional rights against unreasonable search and seizure. Meanwhile, as the Office of the Solicitor General (OSG) failed to timely file its Comment on Valerosos Motion for Reconsideration, it instead filed a Manifestation in Lieu of Comment. In its Manifestation, the OSG changed its previous position and now recommends Valerosos acquittal. After a second look at the evidence presented, the OSG considers the testimonies of the witnesses for the defense more credible and thus concludes that Valeroso was arrested in a boarding house. More importantly, the OSG agrees with Valeroso that the subject firearm was obtained by the police officers in violation of Valerosos constitutional right against illegal search and seizure, and should thus be excluded from the evidence for the prosecution. Lastly, assuming that the subject firearm was admissible in evidence, still, Valeroso could not be convicted of the crime, since he was able to establish his authority to possess the gun through the Memorandum Receipt issued by his superiors.

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After considering anew Valerosos arguments through his Letter-Appeal, together with the OSGs position recommending his acquittal, and keeping in mind that substantial rights must ultimately reign supreme over technicalities, this Court is swayed to reconsider. The Letter-Appeal is actually in the nature of a second motion for reconsideration. While a second motion for reconsideration is, as a general rule, a prohibited pleading, it is within the sound discretion of the Court to admit the same, provided it is filed with prior leave whenever substantive justice may be better served thereby. This is not the first time that this Court is suspending its own rules or excepting a particular case from the operation of the rules. In De Guzman v. Sandiganbayan, despite the denial of De Guzmans motion for reconsideration, we still entertained his Omnibus Motion, which was actually a second motion for reconsideration. Eventually, we reconsidered our earlier decision and remanded the case to the Sandiganbayan for reception and appreciation of petitioners evidence. In that case, we said that if we would not compassionately bend backwards and flex technicalities, petitioner would surely experience the disgrace and misery of incarceration for a crime which he might not have committed after all. Also in Astorga v. People, on a second motion for reconsideration, we set aside our earlier decision, re-examined the records of the case, then finally acquitted Benito Astorga of the crime of Arbitrary Detention on the ground of reasonable doubt. And in Sta. Rosa Realty Development Corporation v. Amante, by virtue of the January 13, 2004 En Banc Resolution, the Court authorized the Special First Division to suspend the Rules, so as to allow it to consider and resolve respondents second motion for reconsideration after the motion was heard on oral arguments. After a re-examination of the merits of the case, we granted the second motion for reconsideration and set aside our earlier decision. Clearly, suspension of the rules of procedure, to pave the way for the re-examination of the findings of fact and conclusions of law earlier made, is not without basis. We would like to stress that rules of procedure are merely tools designed to facilitate the attainment of justice. They are conceived and promulgated to effectively aid the courts in the dispensation of justice. Courts are not slaves to or robots of technical rules, shorn of judicial discretion. In rendering justice, courts have always been, as they ought to be, conscientiously guided by the norm that, on the balance, technicalities take a backseat to substantive rights, and not the other way around. Thus, if the application of the Rules would tend to frustrate rather than to promote justice, it would always be within our power to suspend the rules or except a particular case from its operation. Now on the substantive aspect: The Court notes that the version of the prosecution, as to where Valeroso was arrested, is different from the version of the defense. The prosecution claims that Valeroso was arrested near the INP Central Police Station in Culiat, Quezon City, while he was about to board a tricycle. After placing Valeroso under arrest, the arresting officers bodily searched him, and they found the subject firearm and ammunition. The defense, on the other hand, insists that he was arrested inside the boarding house of his children. After serving the warrant of arrest (allegedly for kidnapping with ransom), some of the police officers searched the boarding house and forcibly opened a cabinet where they discovered the subject firearm. After a thorough re-examination of the records and consideration of the joint appeal for acquittal by Valeroso and the OSG, we find that we must give more credence to the version of the defense.

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Valerosos appeal for acquittal focuses on his constitutional right against unreasonable search and seizure alleged to have been violated by the arresting police officers; and if so, would render the confiscated firearm and ammunition inadmissible in evidence against him. The right against unreasonable searches and seizures is secured by Section 2, Article III of the Constitution which states: SEC. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. From this constitutional provision, it can readily be gleaned that, as a general rule, the procurement of a warrant is required before a law enforcer can validly search or seize the person, house, papers, or effects of any individual. To underscore the significance the law attaches to the fundamental right of an individual against unreasonable searches and seizures, the Constitution succinctly declares in Article III, Section 3(2), that any evidence obtained in violation of this or the preceding section shall be inadmissible in evidence for any purpose in any proceeding. The above proscription is not, however, absolute. The following are the well-recognized instances where searches and seizures are allowed even without a valid warrant: 1. 2. Warrantless search incidental to a lawful arrest; [Seizure] of evidence in plain view. The elements are: a) a prior valid intrusion based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties; b) the evidence was inadvertently discovered by the police who have the right to be where they are; c) the evidence must be immediately apparent; and d) plain view justified mere seizure of evidence without further search; Search of a moving vehicle. Highly regulated by the government, the vehicles inherent mobility reduces expectation of privacy especially when its transit in public thoroughfares furnishes a highly reasonable suspicion amounting to probable cause that the occupant committed a criminal activity; Consented warrantless search; Customs search; Stop and Frisk; Exigent and emergency circumstances. Search of vessels and aircraft; [and] Inspection of buildings and other premises for the enforcement of fire, sanitary and building regulations.

3.

4. 5. 6. 7. 8. 9.

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In the exceptional instances where a warrant is not necessary to effect a valid search or seizure, what constitutes a reasonable or unreasonable search or seizure is purely a judicial question, determinable from the uniqueness of the circumstances involved, including the purpose of the search or seizure, the presence or absence of probable cause, the manner in which the search and seizure was made, the place or thing searched, and the character of the articles procured. In light of the enumerated exceptions, and applying the test of reasonableness laid down above, is the warrantless search and seizure of the firearm and ammunition valid? We answer in the negative. For one, the warrantless search could not be justified as an incident to a lawful arrest. Searches and seizures incident to lawful arrests are governed by Section 13, Rule 126 of the Rules of Court, which reads: SEC. 13. Search incident to lawful arrest. A person lawfully arrested may be searched for dangerous weapons or anything which may have been used or constitute proof in the commission of an offense without a search warrant. We would like to stress that the scope of the warrantless search is not without limitations. In People v. Leangsiri, People v. Cubcubin, Jr., and People v. Estella, we had the occasion to lay down the parameters of a valid warrantless search and seizure as an incident to a lawful arrest. When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapon that the latter might use in order to resist arrest or effect his escape. Otherwise, the officers safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestees person in order to prevent its concealment or destruction. Moreover, in lawful arrests, it becomes both the duty and the right of the apprehending officers to conduct a warrantless search not only on the person of the suspect, but also in the permissible area within the latters reach. Otherwise stated, a valid arrest allows the seizure of evidence or dangerous weapons either on the person of the one arrested or within the area of his immediate control. The phrase within the area of his immediate control means the area from within which he might gain possession of a weapon or destructible evidence. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. In the present case, Valeroso was arrested by virtue of a warrant of arrest allegedly for kidnapping with ransom. At that time, Valeroso was sleeping inside the boarding house of his children. He was awakened by the arresting officers who were heavily armed. They pulled him out of the room, placed him beside the faucet outside the room, tied his hands, and then put him under the care of Disuanco. The other police officers remained inside the room and ransacked the locked cabinet where they found the subject firearm and ammunition. With such discovery, Valeroso was charged with illegal possession of firearm and ammunition. From the foregoing narration of facts, we can readily conclude that the arresting officers served the warrant of arrest without any resistance from Valeroso. They placed him immediately under their control by pulling him out of the bed, and bringing him out of the room with his hands tied. To be sure, the cabinet which, according to Valeroso, was locked,

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could no longer be considered as an area within his immediate control because there was no way for him to take any weapon or to destroy any evidence that could be used against him. The arresting officers would have been justified in searching the person of Valeroso, as well as the tables or drawers in front of him, for any concealed weapon that might be used against the former. But under the circumstances obtaining, there was no comparable justification to search through all the desk drawers and cabinets or the other closed or concealed areas in that room itself. It is worthy to note that the purpose of the exception (warrantless search as an incident to a lawful arrest) is to protect the arresting officer from being harmed by the person arrested, who might be armed with a concealed weapon, and to prevent the latter from destroying evidence within reach. The exception, therefore, should not be strained beyond what is needed to serve its purpose. In the case before us, search was made in the locked cabinet which cannot be said to have been within Valerosos immediate control. Thus, the search exceeded the bounds of what may be considered as an incident to a lawful arrest. Nor can the warrantless search in this case be justified under the plain view doctrine. The plain view doctrine may not be used to launch unbridled searches and indiscriminate seizures or to extend a general exploratory search made solely to find evidence of defendants guilt. The doctrine is usually applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object. As enunciated in People v. Cubcubin, Jr. and People v. Leangsiri: What the plain view cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which[,] he came inadvertently across a piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused and permits the warrantless seizure. Of course, the extension of the original justification is legitimate only where it is immediately apparent to the police that they have evidence before them; the plain view doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges. Indeed, the police officers were inside the boarding house of Valerosos children, because they were supposed to serve a warrant of arrest issued against Valeroso. In other words, the police officers had a prior justification for the intrusion. Consequently, any evidence that they would inadvertently discover may be used against Valeroso. However, in this case, the police officers did not just accidentally discover the subject firearm and ammunition; they actually searched for evidence against Valeroso. Clearly, the search made was illegal, a violation of Valerosos right against unreasonable search and seizure. Consequently, the evidence obtained in violation of said right is inadmissible in evidence against him. Unreasonable searches and seizures are the menace against which the constitutional guarantees afford full protection. While the power to search and seize may at times be necessary for public welfare, still it may be exercised and the law enforced without transgressing the constitutional rights of the citizens, for no enforcement of any statute is of

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sufficient importance to justify indifference to the basic principles of government. Those who are supposed to enforce the law are not justified in disregarding the rights of an individual in the name of order. Order is too high a price to pay for the loss of liberty. Because a warrantless search is in derogation of a constitutional right, peace officers who conduct it cannot invoke regularity in the performance of official functions. The Bill of Rights is the bedrock of constitutional government. If people are stripped naked of their rights as human beings, democracy cannot survive and government becomes meaningless. This explains why the Bill of Rights, contained as it is in Article III of the Constitution, occupies a position of primacy in the fundamental law way above the articles on governmental power. Without the illegally seized firearm, Valerosos conviction cannot stand. There is simply no sufficient evidence to convict him. All told, the guilt of Valeroso was not proven beyond reasonable doubt measured by the required moral certainty for conviction. The evidence presented by the prosecution was not enough to overcome the presumption of innocence as constitutionally ordained. Indeed, it would be better to set free ten men who might probably be guilty of the crime charged than to convict one innocent man for a crime he did not commit. With the foregoing disquisition, there is no more need to discuss the other issues raised by Valeroso. One final note. The Court values liberty and will always insist on the observance of basic constitutional rights as a condition sine qua non against the awesome investigative and prosecutory powers of the government. WHEREFORE, in view of the foregoing, the February 22, 2008 Decision and June 30, 2008 Resolution are RECONSIDERED and SET ASIDE. Sr. Insp. Jerry Valeroso is hereby ACQUITTED of illegal possession of firearm and ammunition.

SO ORDERED.

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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 Decision of the Court of Appeals dated 13 July 2006 in CA-G.R. CR-HC No. 00191-MIN, affirming with modification the Decision 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 Information 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.

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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. Kaluh further testified that at the time of the incident, he was five (5) arms' length away from Tuttoh. 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. He testified that he saw the appellant shoot Tuttoh from inside the nipa hut. Kaluh added that he saw Sakandal grab the pistol from the appellant which caused the latter to run away. Kaluh chased the appellant. When he caught up with the appellant, he tied his hands. Forensic Chemist P/Sr. Inspector Mercedes Delfin Diestro testified that both hands of the appellant were found positive of gunpowder nitrates. Dr. Efren Apolinario, medico-legal doctor of the Zamboanga City Health Office, was presented by the prosecution as an expert witness. 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. From the size of the wound, he approximated that the firearm used was a .45 caliber. He issued a death certificate reflecting therein "hemorrhage secondary to gunshot wound neck, back" as the cause of death of the victim. 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. 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. 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. 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. Tuttoh hit him on the nape. They grappled for the pistol that was being held by Tuttoh. While they were in that position, the pistol accidentally fired and Tuttoh was hit. Afterwards, he surrendered to a person by the name of Bario. 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. The RTC also ruled that the attack was sudden and unexpected and Tuttoh had no chance whatsoever to defend himself or to escape. It appreciated the presence of the aggravating circumstance of use of unlicensed firearm which was not offset by any mitigating circumstance. On 1 October 2001, the RTC decreed:

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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. 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, the case was transferred to the Court of Appeals. 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. 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 2 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.

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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. 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. 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. 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. 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. 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. 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. 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. 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. 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

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with his brother, Sakandal. Moreover, appellant also testified that they were very close to each other, and that they did not have any misunderstanding. 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. 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. 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. Hence, like the delict itself, it must be proven beyond reasonable doubt. 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. 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. 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 5 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. Though the penalty imposed on appellant was

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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. We retain the award of exemplary damages but reduced the amount to P25,000.00 following current jurisprudence. 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. 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. 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.

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G.R. No. 159703, March 03, 2008 CEDRIC SAYCO y VILLANUEVA, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent. DECISION AUSTRIA-MARTINEZ, J.: Before this Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court assailing the May 23, 2003 Resolution of the Court Appeals (CA) which affirmed the conviction of Cedric Sayco y Villanueva (petitioner) for violation of Section 1, Presidential Decree (P.D.) No. 1866, as amended by Republic Act (R.A.) No. 8294; as well as the August 7, 2003 CA Resolution which denied his Motion for Reconsideration.

The facts are not disputed.

Petitioner was charged before the Municipal Trial Court in Cities (MTCC), Bais City with illegal possession of firearms under an Information which reads: The undersigned Prosecutor II hereby accuses ZEDRIC SAYCO Y VILLANUEVA of the crime of Illegal Possession of Firearm and Ammunitions penalized and defined under Section 1 of Presidential Decree Number 1866 as amended by Republic Act Number 8294, committed as follows: That on or about January 3, 1999, at Bais City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, did, then and there willfully, unlawfully and feloniously possess and carry away one (1) caliber 9MM marked SIGSAUER P229 with fourteen (14) live ammunitions and with Serial Number AE 25171, without first having obtained the proper license or authority to possess the same. An act contrary. Upon arraignment, petitioner entered a plea of Not Guilty. On August 2, 2002, the MTCC rendered a Decision, the dispositive portion of which reads: WHEREFORE, premises considered, the Court finds that the evidence presented has sufficiently established the guilt of the accused beyond reasonable doubt. The accused Zedric V. Sayco is convicted for violation of Section 1 of Presidential Decree No. 1866, as amended by Republic Act No. 8294. There being no modifying circumstances, and applying the Indeterminate Sentence Law, the Court sentences the accused to a prison term ranging from THREE YEARS, SIX MONTHS AND TWENTY DAYS of Prision Correccional Medium as minimum, to FIVE YEARS, FOUR MONTHS and TWENTY DAYS of Prision Correccional Maximum as maximum, and to pay a fine of FIFTEEN THOUSAND PESOS. The firearm (Exhibit A) and the ammunitions (Exhibit B) are forfeited in favor of the government, to be disposed of in accordance with law. IT IS SO ORDERED.

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On appeal, the Regional Trial Court (RTC), Bais City issued a Decision dated March 14, 2003, affirming the conviction of petitioner but lowering his penalty as follows: WHEREFORE, premises considered, the Judgment dated August 2, 2002 rendered by the Municipal Trial Court in Cities, Bais City in Criminal Case No. 99-001 is hereby affirmed in all respects subject only to the modification with respect to the penalty imposed by the trial court. The herein accused-appellant is hereby sentenced to the indeterminate penalty of four (4) months of arresto mayor as maximum [sic] to two (2) years, four (4) months and one (1) day of prision correccional as maximum [sic]. SO ORDERED. Petitioner filed with the CA a Petition for Review but the same was denied in the May 23, 2003 CA Resolution assailed herein. Petitioners Motion for Reconsideration was also denied by the CA in its August 7, 2003 Resolution. Hence, the present Petition raising the following issues: I Whether the lower court erred in convicting the petitioner for violation of P.D. 1866, as amended by RA 8294, despite the latters proof of authority to possess the subject firearm. II Whether the prosecutions evidence proved the petitioners guilt beyond reasonable doubt. As summarized by the RTC and MTCC, the evidence for the prosecution consisted of the following: EVIDENCE OF THE PROSECUTION The first prosecution witness in the person of PO3 Mariano Labe testified on January 17, 2002. He declared that on or about 3:35 in the afternoon of January 3, 1999, while they were at the Police Station, they received a telephone call from a concerned citizen from Tavera Street, Bais City, informing them that one unidentified person was inside Abuevas Repair Shop located at Tavera Street, tucking a handgun on his waist. They immediately went to the aforementioned place, and upon their arrival thereat, they saw one unidentified person tucking a handgun on his right side waistline. They approached the unidentified person and asked him if he had a license to possess said firearm, but the answer was in the negative. At this juncture, they immediately effected the arrest, and confiscated from his possession and custody a Caliber 9MM marked SIGSAUER P299 with 14 live ammunitions with Serial No. AE 25171. The arrested person was identified as Zedric Sayco y Villanueva, a resident of Binalbagan, Negros Occidental. SPO2 VALENTINO ZAMORA, member of the PNP Bais City, testified on February 26, 2002. He was presented to corroborate the testimony of Mariano Labe. He further declared that during the incident, they talked to the accused in Cebuano, but they found out then that the latter is an Ilonggo, so they spoke to him in English. SPO2 VICENTE DORADO also testified on February 26, 2002. He corroborated the testimony of SPO2 Valentino Zamora and PO2 Mariano Labe. The following exhibits were admitted as part of the evidence of the prosecution: Exhibit A one (1) 9 mm pistol with serial no. 25171. Exhibit B - fourteen (14) pieces live ammunition and one (1) magazine placed in a black plastic

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bag. Exhibit C - Joint Affidavit of the police officers. (Emphasis supplied) For his defense, petitioner does not deny that he was in possession of the subject firearm and ammunitions when he was apprehended on January 3, 1999 in Bais City, but he insists that he had the requisite permits to carry the same, specifically: 1) Memorandum Receipt for Equipment (Non-expendable Property), which reads: Hqs Field Station 743, 7ISU, ISG, PA, Camp Montelibano Sr., Bacolod City, Philippines, 01 January 1999. I acknowledge to have received from MAJOR RICARDO B. BAYHON (INF) PA, Commanding Officer, FS743, 7ISU, ISG, PA the following property for which I am responsible, subject to the provision of the accounting law and which will be used in the office of FS 7431. QTY 1 UNIT NAME OF DESCRIPTION ea Cal 9mm (SIG SAUER) CLASSI- UNIT PRICE FICATION TOTAL Pistol

2 24

ea ea

SN: AE 25171 Mags for Cal 9mm pistol Ctgs for 9mm Ammo

x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-NOTHING FOLLOWS-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x Basis: For use of subject EP in connection with his official duties/mission in the AOR. NOTED BY: Nolasco B. James (SGD) SSg (Inf) PA FS Supply NCO APPROVED BY: RICARDO B BAYHON (SGD) Major (INF) PA Commanding Officer CA Zedric V. Zayco (SGD) Confidential Agent; and 2) Mission Order dated January 1, 1999, thus: Mission Orders Number: FS743-A-241 TO: CA Cedric V. Zayco I. II. III. IV. DESTINATION Negros Island PURPOSE CONFIDENTIAL DURATION 01 January 1999 to 31 March 1999 AUTHORIZED ATTIRE/UNIFORM GOA ( ) BDA ( ) Civilian (x) V. AUTHORIZED TO CARRY FIREARMS: (x) Yes ( ) No.

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Caliber 9mm

Make Sig Sauer

Kind Pistol

Serial Nr AE25171

MR/License Nr Ammo Nr ISG Prop 24 rds

VI. SPECIFIC INSTRUCTIONS: a. For personnel in uniform, the firearms shall be placed in holster securely attached to the belt. Personnel in uniform without holster and personnel in civilian attire will ensure that their firearms are concealed unless in actual and lawful use. xxxx RICARDO B. BAYHON (SGD) Major (INF) PA

FS 743 Commander The RTC and MTCC gave no significance to the foregoing documents. The MTCC held that the Memorandum Receipt and Mission Order do not constitute the license required by law because they were not issued by the Philippine National Police (PNP) Firearms and Explosives Unit, but by the Commanding Officer of the Philippine Army who is not authorized by law to issue licenses to civilians to possess firearms and ammunitions. The RTC added that, as held in Pastrano v. Court of Appeals and Belga v. Buban, said documents cannot take the place of the requisite license.

The CA wholly concurred with both courts.

In the present Petition, petitioner insists that he is a confidential agent of the Armed Forces of the Philippines (AFP), and it was in that capacity that he received the subject firearm and ammunitions from the AFP. As said firearm and ammunitions are government property duly licensed to the Intelligence Security Group (ISG) of the AFP, the same could not be licensed under his name; instead, what he obtained were a Memorandum Receipt and a Mission Order whereby ISG entrusted to him the subject firearm and ammunitions and authorized him to carry the same around Bacolod City. Petitioner further argues that he merely acted in good faith when he relied on the Memorandum Receipt and Mission Order for authority to carry said firearm and ammunitions; thus, it would be a grave injustice if he were to be punished for the deficiency of said documents. The Solicitor General filed his Comment, pointing out that good faith is not a valid defense in the crime of illegal possession of firearms.

The arguments of petitioner are not tenable.

The corpus delicti in the crime of illegal possession of firearms is the accused's lack of license or permit to possess or carry the firearm, as possession itself is not prohibited by law. To establish the corpus delicti, the prosecution has the burden of proving that the firearm exists and that the accused who owned or possessed it does not have the corresponding license or permit to possess or carry the same.

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There is no dispute over these key facts: first, that the subject firearm and ammunitions exist; second, that petitioner had possession thereof at the time of his apprehension; third, that petitioner is a confidential agent of the ISG-AFP; fourth, that petitioner lacks a license issued by the Firearms and Explosives Unit of the PNP; and fifth, that petitioner holds a Memorandum Receipt and Mission Order covering the subject firearm and ammunitions. Thus, the issue to be resolved is confined to whether petitioner's Memorandum Receipt and Mission Order constitute sufficient authority for him to possess the subject firearm and ammunitions and carry the same outside of his residence, without violating P.D. No. 1866, as amended by R.A. No. 8294.

As correctly cited by the Solicitor General, it is a settled jurisprudence that a memorandum receipt and mission order cannot take the place of a duly issued firearms license, and an accused who relies on said documents cannot invoke good faith as a defense against a prosecution for illegal possession of firearms, as this is a malum prohibitum. Petitioner interposed no new argument that would convince this Court to abandon a deep-rooted jurisprudence. However, rather than outrightly dismiss the present petition in the light of existing jurisprudence, this Court finds it opportune to examine the rules governing the issuance of memorandum receipts and mission orders covering government-owned firearms to special and confidential civilian agents, in order to pave the way for a more effective regulation of the proliferation of such firearms and the abatement of crimes, such as extra-judicial killings, attendant to such phenomenon. In 1901, the United States Philippine Commission enacted Act No. 175, providing for the organization of an Insular Constabulary. Section 6 vested in the Chief of the Insular Constabulary the following authority over the distribution of firearms: Section 6. The Insular Chief shall prescribe for the Insular Constabulary suitable arms, uniform, and equipment and shall report to the Commission, through the Civil Governor, his action in this regard, together with a statement of the cost, to the end that appropriation may be made to defray the cost thereof. The guns, revolvers, and ammunitions needed to equip the insular and municipal police shall be purchased by the Insular Purchasing Agent on the order of the Chief of Insular Constabulary, by whom they shall be distributed to the provinces and municipalities as they may be needed. The Chief of the Insular Constabulary shall keep a record of the guns and revolvers distributed, by their numbers, to municipalities and provinces x x x. (Emphasis supplied) Firearms owned by the government may therefore be distributed by the Chief of the Insular Constabulary to the members of the insular and municipal police, with merely a record of the distribution being required.

Shortly, the Philippine Commission enacted Act No. 1780 regulating possession of firearms: Section 1. It shall be unlawful for any person, firm, or corporation, for purposes of sale, to import, buy or otherwise acquire, dispose of, possess, or have the custody of any rifle, musket, carbine, shotgun, revolver, pistol, or air rifle, except air rifles of small caliber and limited range used as toys, or any other deadly weapon x x x unless and until such person, firm, or corporation shall secure a license, pay the license fee, and execute a bond and otherwise comply with the requirements of this Act and the rules and regulations issued in executive orders by the Governor-General pursuant to the provisions of this Act x x x. (Emphasis supplied) but exempted therefrom the following government-owned firearms:

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Section 16. The foregoing provisions of this Act shall not apply to firearms and ammunition therefor regularly and lawfully issued to officers, soldiers, sailors, or marines of the United States Army and Navy, the Constabulary, guards in the employ of the Bureau of Prisons, the police force of the City of Manila, provincial prisoners and jails when such firearms are in possession of such officials and public servants for use in the performance of their official duties. (Emphasis supplied) The 1917 Revised Administrative Code retained the foregoing exemption: Section 879. Exemption as to firearms and ammunition used by military and naval forces or by peace officers. - This article shall not apply to firearms and ammunition regularly and lawfully issued to officers, soldiers, sailors, or marines of the Unites States Army and Navy, the Philippine Constabulary, guards in the employment of the Bureau of Prisons, municipal police, provincial governors, lieutenant governors, provincial treasurers, municipal police, provincial governors, lieutenant governors, provincial treasurers, municipal treasurers, municipal presidents, and guards of provincial prisoners and jails, when such firearms are in possession of such officials and public servants for use in the performance of their official duties. (Emphasis supplied) In People of the Philippines v. Macarandang, we interpreted Section 879 of the 1917 Revised Administrative Code as applicable to a secret agent appointed by a governor as said agent holds a position equivalent to that of peace officer or member of the municipal police. We reiterated this ruling in People of the Philippines v. Licera. In People v. Asa, we acquitted a civilian guard from a charge of illegal possession of firearms on the ground that he acted in good faith in bearing the firearms issued to him by his superior. Two years later, in People v. Mapa, the Court, speaking through Justice Fernando, overhauled its interpretation of Section 879, thus: The law is explicit that except as thereafter specially allowed, "it shall be unlawful for any person to x x x possess any firearm, detached parts of firearms or ammunition therefor, or any instrument or implement used or intended to be used in the manufacture of firearms, parts of firearms, or ammunition." The next section provides that "firearms and ammunition regularly and lawfully issued to officers, soldiers, sailors, or marines [of the Armed Forces of the Philippines], the Philippine Constabulary, guards in the employment of the Bureau of Prisons, municipal police, provincial governors, lieutenant governors, provincial treasurers, municipal treasurers, municipal mayors, and guards of provincial prisoners and jails," are not covered "when such firearms are in possession of such officials and public servants for use in the performance of their official duties." The law cannot be any clearer. No provision is made for a secret agent. As such he is not exempt. Our task is equally clear. The first and fundamental duty of courts is to apply the law. "Construction and interpretation come only after it has been demonstrated that application is impossible or inadequate without them." The conviction of the accused must stand. It cannot be set aside. Accused however would rely on People v. Macarandang, where a secret agent was acquitted on appeal on the assumption that the appointment "of the accused as a secret agent to assist in the maintenance of peace and order campaigns and detection of crimes, sufficiently put him within the category of a "peace officer" equivalent even to a member of the municipal police expressly covered by section 879." Such reliance is misplaced. It is not within the power of this Court to set aside the clear and explicit mandate of a statutory provision. To the extent therefore that this decision conflicts with what was held in People v. Macarandang, it no longer speaks with authority. (Emphasis supplied)

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We also abandoned the view that good faith is a defense against a prosecution for illegal possession of firearms. On June 29, 1983, P.D. No. 1866 was issued, imposing stiffer penalties on illegal possession of firearms. It also added the following separate requirement for carrying firearms: Section 1. Unlawful manufacture, sale, acquisition, disposition or possession of firearms and ammunition or implements used or intended to be used in the manufacture of firearms or ammunition. - x x x The penalty of prision mayor shall be imposed upon any person who shall carry any licensed firearm outside his residence without legal authority therefor. xxxx Section 7. Unauthorized issuance of authority to carry firearms and/or ammunition outside of residence. - The penalty of prision correccional shall be imposed upon any person, civilian or military, who shall issue authority to carry firearm and/or ammunition outside of residence without authority therefor. P.D. No. 1866 was later amended by R.A. No. 8294, which lowered the imposable penalties for illegal possession of firearm when no other crime is committed. However, neither law amended or repealed Section 879 of the 1917 Revised Administrative Code. Even Executive Order No. 292, otherwise known as the 1987 Administrative Code, left Section 879 untouched. As matters stand, therefore, Section 879, as construed by this Court in Mapa and Neri, and reinforced by paragraph 6, Section 1 of P.D. No. 1866, as amended by R.A. No. 8294, is still the basic law on the issuance, possession and carrying of government-owned firearms. In exercise of its rule-making authority under Section 8 of P.D. No. 1866, the Chief of the Philippine Constabulary issued The Implementing Rules and Regulations of P.D. No. 1866, which includes the following provisions salient to the issuance, possession and carrying of government-owned firearms: Section 1. Definition of terms. - For purposes of Presidential Decree No. 1866, the following terms shall mean and be interpreted as hereinafter defined: x x x x

d. Mission Order - is a written directive or order issued by government authority as enumerated in Section 5 hereof to persons who are under his supervision and control for a definite purpose or objective during a specified period and to such place or places as therein mentioned which may entitle the bearer thereof to carry his duly issued or licensed firearm outside of his residence when so specified therein. e. Permit to Carry Firearm Outside of Residence - is a written authority issued to any person by the Chief of Constabulary which entitles such person to carry his licensed or lawfully issued firearms outside of residence for the duration and purpose specified therein. f. Residence - refers to that place where the firearm and ammunition are being permanently kept. It includes the office or house where they are kept and the premises of the house enclosed by walls and gates separating said premises from adjacent properties. For firearms covered by a regular license or special permit, their residence shall be that specified in the license or permit; and those covered by a Certificate of Registration or a Memorandum Receipt, their residence in the office/station to which the grantee belongs.

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xxxx

Section 5. Authority to issue mission order involving the carrying of firearm. - The following are authorized to issue mission orders with provisions which may entitle the bearer thereof to carry his issued/licensed firearm and ammunition for the duration of such mission: a. For officers, men and regular civilian agents of the Ministry of National Defense (MOND)/Armed Forces of the Philippines (AFP) including members of the ICHDF:

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(8) Provincial commanders, METRODISCOM commanders, company commanders and their equivalent in the Philippine Air Force and Philippine Navy.

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Section 6. Specific guidelines in the carrying of firearms outside of residence. - The following specific guidelines shall be strictly observed in the carrying of firearm outside of residence: a. Lawful Holders of Firearm Lawful holders of firearm (regular licenses, special permit, certificate of registration or M/R) are prohibited from carrying their firearms outside of residence except when they have been issued by the Chief of Constabulary a permit to carry firearm outside of their residence as provided for in Section hereof or in actual performance of duty or official mission under Section 4 and 5 hereof. (Emphasis supplied.) Section 6 (a) of the Implementing Rules and Regulations was later amended to read as follows: a-1. Mission Order. - x x x No Mission Order shall be issued to any civilian agent authorizing the same to carry firearms outside of residence unless he/she is included in the regular plantilla of the government agency involved in law enforcement and is receiving regular compensation for the services he/she is rendering in the agency. Further, the civilian agent must be included in a specific law enforcement/police/intelligence project proposal or special project which specifically requires the use of firearm(s) to insure its accomplishment and that the project is duly approved at the PC Regional Command level or its equivalent level in other major services of the AFP, INP and NBI, or at higher level of command. (Emphasis supplied) The Ministry of Justice also issued Memorandum Circular No. 8 dated October 16, 1986, further strengthening the foregoing Implementing Rules and Regulations, to wit: x x x It is unlawful for any person or office to issue a mission order authorizing the carrying of firearms by any person unless the following conditions are met: 1. That the AFP officer is authorized by the law to issue the mission order. 2. That the recipient or addressee of the mission order is also authorized by the law to have a mission order, i.e., he must be an organic member of the command/unit of the AFP officer issuing the mission order. If mission orders are issued to civilians (not members of the uniformed service), they must be civilian agents included in the regular plantilla of the government agency involved in law enforcement and are receiving regular compensation for services they are rendering. (Emphasis supplied)

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Earlier, a Letter Directive dated May 19, 1984 was issued to the Chief of Staff of the AFP, prohibiting the issuance of government-owned firearms to civilians, viz: 4. The Implementing Rules and Regulations of P.D. 1866 which codifies all the laws on firearms and explosives clarify the following:

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b. Section 5 identifies the officials/officers of the MOND/AFP who are authorized to issue Mission Orders to enable AFP officers, men and regular civilian agents carry their firearms in the performance of their duties. Regular civilian agents are those who are covered by Permanent or Temporary Civil Service attested appointments in the plantilla of civilian employees. Special or confidential civilian agents or the like are not regular civilian agents and are therefore violating the law when they carry firearms (personal-owned or governmentissued) with Mission Orders. c. There are no other laws or AFP regulations authorizing the loan of AFP-owned firearms to private firms and individuals. (Emphasis supplied) It is noted that the Implementing Rules and Regulations of P.D. No. 1866, as amended, allude to memorandum receipts covering government-owned firearms. While said rules do not define the term, we can derive its meaning from Section 492 of the Government Auditing and Accounting Manual (Volume I: Government Auditing Rules and Regulations) to wit: Section 492. Issues of equipment to officers and employees. - Equipment issued by the property officer for official use of officials and employees shall be covered by Memorandum Receipt for Equipment (MR) which shall be renewed every January of the third year after issue. MRs not renewed after three years shall not be considered in making physical count of the equipment. (Emphasis supplied) From the foregoing discussion, therefore, the rules governing memorandum receipts and mission orders covering the issuance to and the possession and/or carrying of governmentowned firearms by special or confidential civilian agents may be synthesized as follows: First, special or confidential civilian agents who are not included in the regular plantilla of any government agency involved in law enforcement or receiving regular compensation for services rendered are not exempt from the requirements under P.D. No. 1866, as amended by R.A. No. 8294, of a regular license to possess firearms and a permit to carry the same outside of residence; Second, said special or confidential civilian agents are not qualified to receive, obtain and possess government-owned firearms. Their ineligibility will not be cured by the issuance of a memorandum receipt for equipment covering said government-owned firearms. Neither will they qualify for exemption from the requirements of a regular firearms license and a permit to carry firearms by the mere issuance to them of a government-owned firearms covered by a memorandum receipt; and Third, said special or confidential civilian agents do not qualify for mission orders to carry firearms (whether private- owned or government-owned) outside of their residence. The foregoing rules do not apply to special or confidential civilian agents in possession of or bearing private-owned firearms that are duly licensed and covered by permits to carry the same outside of residence.

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Set against the foregoing rules, it is clear that petitioner is not authorized to possess and carry the subject firearm and ammunition, notwithstanding the memorandum receipt and mission order which were illegally issued to him. Petitioner is a planter who was recruited to assist in the counter-insurgency campaign of the AFP. However, as he offered no evidence that he is in the regular plantilla of the AFP or that he is receiving regular compensation from said agency, he cannot be considered a regular civilian agent but a mere confidential civilian agent as defined under Section 6(a) of the Implementing Rules and Regulations of P.D. No. 1866. As such, he was not authorized to receive the subject government-owned firearm and ammunitions. The memorandum receipt he signed to account for said government properties did not legitimize his possession thereof. Neither was petitioner authorized to bear the subject firearm and ammunitions outside of his residence. The mission order issued to petitioner was illegal, given that he is not a regular civilian agent but a mere confidential civilian agent. Worse, petitioner was not even acting as such confidential civilian agent at the time he was carrying the subject firearm and ammunitions. Petitioner testified that at that time, he was not on an official mission in Bais City but had merely visited the place to attend to a family emergency. While this Court sustains the conviction of petitioner for illegal possession of firearms, we reexamine the imprisonment term to which petitioner was sentenced by the RTC, as affirmed by the CA. The MTCC imposed on petitioner the penalty of imprisonment for three (3) years, six (6) months and twenty (20) days of prision correccional medium as minimum, to five (5) years, four (4) months and twenty (20) days of prision correccional maximum as maximum. Applying the Indeterminate Sentence Law, the RTC lowered the penalty to four (4) months of arresto mayor as minimum, to two (2) years, four (4) months and one (1) day of prision correccional as maximum. The CA affirmed the RTC. A further revision of the penalty is warranted in view of the special provision in the Indeterminate Sentence Law applicable to crimes penalized by a special law, to wit: Section 1. Hereafter, in imposing a prison sentence for an offense punished by the Revised Penal Code, or its amendments, the court shall sentence the accused to an indeterminate sentence the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of the said Code, and the minimum which shall be within the range of the penalty next lower to that prescribed by the Code for the offense; and if the offense is punished by any other law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the same. (Emphasis supplied) P.D. No. 1866 imposed the penalty of reclusion temporal in its maximum period to reclusion perpetua for illegal possession of firearms. R.A. No. 8294 lowered the penalty, as follows: Section 1. Section 1 of Presidential Decree No. 1866, as amended, is hereby further amended to read as follows: 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. (Emphasis supplied.) Under Article 27 of the Revised Penal Code, prision correccional in its maximum period ranges from four (4) years, two (2) months and one (1) day, to six (6) years. As prescribed under

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Section 1 of the Indeterminate Sentence Law, the appropriate penalty that can be imposed on petitioner should keep within said range. Thus, there being no attendant mitigating or aggravating circumstance, and considering that petitioner accepted the subject firearm and ammunitions from the government under the erroneous notion that the memorandum receipt and mission order issued to him legitimized his possession thereof, the appropriate indeterminate penalty is four (4) years, two (2) months and one (1) day as minimum to five (5) years, four (4) months and twenty-one (21) days as maximum. WHEREFORE, the petition is DENIED. However, for reasons stated in the text of herein Decision, the Resolutions dated May 23, 2003 and August 7, 2003 of the Court of Appeals in CA-G.R. SP No. 27228 together with the Decision dated March 14, 2003 of the Regional Trial Court of Bais City are MODIFIED insofar only as the penalty of imprisonment is concerned. Petitioner Cedric Sayco y Villanueva is sentenced to serve an indeterminate penalty of four (4) years, two (2) months and one (1) day of prision correccional as minimum, to five (5) years, four (4) months and twenty-one (21) days of prision correccional as maximum. SO ORDERED.

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G.R. No. 158788 April 30, 2008 ELY AGUSTIN, Petitioner, - versus PEOPLE OF THE PHILIPPINES, Respondent.

AUSTRIA-MARTINEZ, J.: Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, seeking to annul the Decision of the Court of Appeals (CA) dated January 22, 2003, affirming the Decision of the Regional Trial Court, Branch 24 of Cabugao, Ilocos Sur (RTC) convicting Ely Agustin (petitioner) of the crime of Illegal Possession of Firearms under Presidential Decree (P.D.) No. 1866, and the CA Resolution dated June 23, 2003, denying petitioner's Motion for Reconsideration. The records reveal that on October 1, 1995, at 7:20 in the evening, armed men robbed the house of spouses George and Rosemarie Gante in Barangay Pug-os, Cabugao, Ilocos Sur, forcibly taking with them several valuables, including cash amounting to P600,000.00. Forthwith, the spouses reported the matter to the police, who, in turn, immediately applied for a search warrant with the Municipal Trial Court (MTC) of Cabugao, Ilocos Sur. The MTC issued Search Warrant No. 5-95, directing a search of the items stolen from the victims, as well as the firearms used by the perpetrators. One of the target premises was the residence of petitioner, named as one of the several suspects in the crime. On October 6, 1995, armed with the warrant, policemen searched the premises of petitioner's house located in Sitio Padual, Barangay Pug-os, Cabugao, Ilocos Sur. The search resulted in the recovery of a firearm and ammunitions which had no license nor authority to possess such weapon, and, consequently, the filing of a criminal case, docketed as Criminal Case No. 1651-K, for violation of P.D. No. 1866 or Illegal Possession of Firearms, against petitioner before the RTC. The Information against petitioner reads as follows: That on or about the 6th day of October 1995, in the municipality of Cabugao, province of Ilocos Sur, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there wilfully, unlawfully and feloniously have in his possession, control and custody one (1) revolver caliber .38 (Cebu Made) with Serial No. 439575 with five (5) live ammunitions, without the necessary license or authority to possess and carry the same being usual instrument in the commission of crimes or acts of violence. Contrary to law. Thereafter, trial ensued. The prosecution presented eight witnesses namely: (1) P/Insp. Anselmo Baldovino (P/Insp. Baldovino), a police investigator and the applicant for the search warrant; (2) Rosemarie Gante (Gante), the victim of the robbery and private complainant; (3) Ignacio Yabes (Yabes), a Municipal Local Government Operations Officer of the Department of Interior and Local Government who was the civilian witness to the search; (4) P/Supt. Bonifacio Abian (P/Supt. Abian), Deputy Provincial Director of the Philippine National Police and part of the search team; (5) SPO4 Marino Peneyra (SPO4 Peneyra); (6) SPO1 Franklin Cabaya (SPO1 Cabaya); (7) SPO1 James Jara (SPO1 Jara); and (8) SPO2 Florentino Renon (SPO2 Renon). For his defense, petitioner and his wife Lorna Agustin (Lorna) testified.

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The prosecution's case centered mainly on evidence that during the enforcement of the search warrant against petitioner, a .38 caliber revolver firearm was found in the latter's house. In particular, SPO1 Cabaya testified that while poking at a closed rattan cabinet near the door, he saw a firearm on the lower shelf. The gun is a .38 caliber revolver with five live ammunitions, which he immediately turned over to his superior, P/Insp. Baldovino. Petitioner anchored his defense on denial and frame-up. The petitioner and his wife Lorna assert that petitioner does not own a gun. Lorna testified that she saw a military man planting the gun. After trial, the RTC rendered its Decision dated July 7, 1999, finding petitioner guilty beyond reasonable doubt, as follows: WHEREFORE, finding the accused, Ely Agustin @ Belleng GUILTY beyond reasonable doubt of Illegal Possession of Firearm, he is hereby sentenced to a prison term ranging from FOUR (4) YEARS and TWO (2) MONTHS, as minimum, to SIX (6) YEARS, as maximum, both of prision correccional, with the accessories of the law [sic], to pay a fine of P15,000.00 without subsidiary imprisonment in case of insolvency, and to pay the costs. The gun (Exh. G) is confiscated and forfeited in favor of the Government. SO ORDERED.

Petitioner filed an appeal with the CA, docketed as CA-G.R. CR No. 25452. The CA rendered herein assailed Decision dated January 22, 2003, affirming with modification the decision of the trial court, thus:

WHEREFORE, except for the MODIFICATION reducing and changing the maximum of the prison term imposed to Five (5) Years Four (4) Months and Twenty (20) Days, the appealed Decision is otherwise AFFIRMED. SO ORDERED.

Hence, the instant Petition for Review, on the principal ground that the CA gravely erred in finding that the guilt of petitioner has been proven beyond reasonable doubt; and more specifically, in giving weight and credence to the testimonies of the police officers who searched the house of the petitioner which are replete with material and irreconcilable contradictions and in giving SPO1 Cabaya the presumption of regularity in the performance of duty despite the claim of Lorna that the .38 caliber revolver was planted. Petitioner insists that the trial court and the CA committed reversible error in giving little credence to his defense that the firearm found in his residence was planted by the policemen. He also alleges material inconsistencies in the testimonies of the policemen as witnesses for the prosecution, which amounted to failure by the prosecution to prove his guilt beyond reasonable doubt. The petition has merit. The paramount issue in the present case is whether the prosecution established the guilt of petitioner beyond reasonable doubt; and in the determination thereof, a factual issue, that is, whether a gun was found in the house of petitioner, must necessarily be resolved.

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It is a well-entrenched rule that appeal in criminal cases opens the whole case wide open for review. In convicting petitioner, the RTC relied heavily on the testimony of SPO1 Cabaya, who testified that he discovered the subject firearm in a closed cabinet inside the former's house. The trial court brushed aside petitioner's defense of denial and protestations of frame-up. The RTC justified giving full credence to Cabaya's testimony on the principles that the latter is presumed to have performed his official duties regularly; that he had no ill motive to frame-up petitioner; and that his affirmative testimony is stronger than petitioner's negative testimony. For its part, the CA justified its affirmation of the trial court's decision on the basis of long-standing principles that denials, such as the one made by petitioner, cannot be given greater evidentiary value over the testimony of credible witnesses who testified on affirmative matters, and reiterated that absent evidence x x x that the prosecution witness was moved by improper motive, the presumption is that no such ill motive exists, and his testimony is entitled to full faith and credit. The CA upheld the trial court's findings of presumption of regular performance of duty on the part of the searching policemen and the weakness of the petitioner's defense of frame-up. Weighing these findings of the lower courts against the petitioner's claim that the prosecution failed to prove its case beyond reasonable doubt due to the material inconsistencies in the testimonies of its witnesses, the Court finds, after a meticulous examination of the records that the lower courts, indeed, committed a reversible error in finding petitioner guilty beyond reasonable doubt of the crime he was charged with. The RTC and the CA have overlooked certain facts and circumstances that would have interjected serious apprehensions absolutely impairing the credibility of the witnesses for the prosecution. The conflicting testimonies of the prosecution witnesses as to who actually entered the house and conducted the search, who discovered the gun, and who witnessed the discovery are material matters because they relate directly to a fact in issue; in the present case, whether a gun has been found in the house of petitioner; or to a fact to which, by the process of logic, an inference may be made as to the existence or non-existence of a fact in issue. As held in United States v. Estraa, a material matter is the main fact which is the subject of inquiry or any circumstance which tends to prove that fact or any fact or circumstance which tends to corroborate or strengthen the testimony relative to the subject of inquiry or which legitimately affects the credit of any witness who testifies. The evidence of prosecution is severely weakened by several contradictions in the testimonies of its witnesses. Especially damaged is the credibility of SPO1 Cabaya, none of whose declarations on material points jibes with those of the other prosecution witnesses. In the face of the vehement and consistent protestations of frame-up by petitioner and his wife, the trial court and the CA erred in overlooking or misappreciating these inconsistencies. To repeat, the inconsistencies are material as they delve into the very bottom of the question of whether or not SPO1 Cabaya really found a firearm in the house of petitioner. First material inconsistency: On SPO1 Cabaya's companions and the circumstances of his discovery of the subject firearm SPO1 Cabaya testified that he entered the house with four other policemen, among whom were SPO1 Jara, SPO4 Peneyra, SPO3 Bernabe Ocado (SPO3 Ocado) and another one whose name he does not remember. While searching, he discovered the firearm in the kitchen, inside a closed cabinet near the door. He said that SPO1 Jara was standing right behind him, at a distance of just one meter, when he

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(Cabaya) saw the firearm; and that he picked up the gun, held it and showed it to SPO1 Jara. He asserted that SPO2 Renon was not one of those who went inside the house. The following is the testimony of SPO1 Cabaya on direct examination: Q. A. Q. A. Q. A. Court Q. A. Court Q. Continue, Fiscal. Before or after the door? Inside the house already, Your Honor. You mentioned that you were able to recover a firearm from the house of Ely Agustin. Who actually recovered the firearm? I was the one, sir. In what particular place in the house of Ely Agustin were you able to recover the firearm? Inside a cabinet, sir. Where is that cabinet located in relation to the main house? At the door of the house, sir.

APP Gascon Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Will you describe that cabinet? It is made of rattan, sir. Does it have covers and doors of its own? Yes, sir. What part of the cabinet did you discover the firearm? On the lower shelf, sir. That lower shelf, was it closed or opened when you discovered the firearm? It was closed, sir. How far was that cabinet to the door? About 70 centimeters, sir. How many police officers including you entered the house of Ely Agustin to conduct the search? Five (5), sir. When you discovered that firearm, do you remember who was or were the persons near you? SPO1 James Jara, sir. Who else, if any, aside from SPO1 James Jara? SPO4 Marino Peneyra, sir. Who else? SPO3 Bernabe Ocado, sir.

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Q. A. xxxx Q. A. Q. A. Q. A. xxxx Q. A. Q. A. Q. A. Q. A. Q. A.

Were those the only police officers who were with you when you discovered the firearm? Yes, sir.

So, who were with you then inside the house when you discovered the firearm? SPO4 Peneyra, SPO3 Ocado and SPO1 Jara, sir. You mentioned a while ago that there were five (5) of you who conducted the search? I cannot recall the other one, sir. Do you know SPO2 Florentino Renon? Yes, sir, but he was not there at the time.

Not even any one of your companions who were inside the house actually witnessed the taking of the gun inside that cabinet? They saw it, sir. You mean to say that SPO4 Peneyra, SPO3 Ocado and SPO1 Jara witnessed the taking of the gun by you inside the cabinet? SPO1 Jara only, sir. How about SPO4 Peneyra and SPO3 Ocado? They were inside the sala, sir. You did not call for them before you took the gun from the cabinet? I shouted, sir. But they did not come to your place? They did not, sir.

Q. A. Q. A. xxxx Q. A. Q. A.

And who was that companion of yours whom you said witnessed the taking of the gun? SPO1 Jara was at my back, sir. But you were already holding the gun when SPO1 Jara saw the gun? Yes, sir.

And where was SPO1 Jara when you discovered the firearm? He was at my back, sir. How near or how far was he to you when you discovered the firearm? One (1) meter, sir. (Emphasis supplied)

SPO1 Cabaya's testimony is contradicted by the testimonies of four other prosecution witnesses on material points, making Cabaya's testimony in particular, and the prosecution's evidence in general, not credible, and therefore, of no probative weight, thus:

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1. SPO1 Jara, the best witness who could have corroborated SPO1 Cabaya's testimony, related a different story as to the circumstances of the firearm's discovery. SPO1 Jara testified that he merely conducted perimeter security during the search and did not enter or participate in searching the house. SPO1 Jara testified that he remained outside the house throughout the search, and when SPO1 Cabaya shouted and showed a gun, he was seven to eight meters away from him. He could not see the inside of the house and could see Cabaya only from his chest up. He did not see the firearm at the place where it was found, but saw it only when Cabaya raised his arm to show the gun, which was a revolver. He is certain that he was not with Cabaya at the time the latter discovered the firearm. He further testified that SPO3 Ocado, who, according to SPO1 Cabaya was one of those near him when he (Cabaya) discovered the firearm, stayed outside and did not enter or search the house. 2. P/Insp. Baldovino testified that only SPO2 Renon conducted the search and entered the house together with SPO1 Cabaya, directly contradicting SPO1 Cabaya's testimony that he, together with SPO1 Jara, SPO4 Peneyra, SPO3 Ocado, and another one whose name he cannot recall, were inside the house when he discovered the gun and that SPO2 Renon did not enter the house of petitioner. 3. P/Supt. Abian categorically testified that it was SPO4 Peneyra, not SPO1 Cabaya, who recovered the firearm from petitioner's house. 4. SPO4 Peneyra contradicted SPO1 Cabaya and P/Supt. Abian. He testified that he did not enter the house, but stayed outside, during the search. He also said that it was SPO1 Cabaya and SPO2 Renon who discovered the firearm. 5. SPO2 Renon contradicted SPO4 Peneyra and SPO1 Cabaya when he (Renon) testified on rebuttal that Cabaya was alone in the kitchen when the latter allegedly discovered the gun.

Second inconsistency: On the reaction of petitioner to SPO1 Cabaya's alleged discovery of the subject firearm SPO1 Cabaya testified that when he turned over the firearm to his superior, P/Insp. Baldovino, petitioner was present and did not utter a single word of protest. This was contradicted, however, by P/Insp. Baldovino, who testified that petitioner protested, claimed that he did not know anything about the gun and refused to sign the certification that a search was conducted in his house. Likewise, prosecution witnesses P/Supt. Abian, SPO4 Peneyra and SPO1 Jara all confirmed that petitioner vehemently denied possession of the firearm as soon as its discovery was announced. Third inconsistency: On the witnessing of the actual discovery of the subject firearm by civilian Yabes At first, SPO1 Cabaya testified that Municipal Local Government Operations Officer Yabes was outside the house when the firearm was discovered, but later, he clarified that Yabes was actually inside the house when it happened. He informed Yabes of the discovery by shouting, but he did not call Yabes to

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witness the actual taking of the gun from its hiding place because he had to show it to his officer; and that Yabes saw the gun when he showed the gun outside. However, Yabes contradicted SPO1 Cabaya. Yabes claimed to have seen the gun in an open shelf, after hearing the shouts of a policeman who was not one of those who entered the house to conduct the search, to wit: Q. A. Q. A. Q. A. Q. A. You said that three (3) policemen entered the house. All the time that they where inside the house, where were you in relation to them? At the door of the house, sir. When they conducted the actual search inside the house, what were you doing? I was looking at them, sir. Will you describe the inside of the house of Ely Agustin? On the northeast corner of the house, there is a bed, no room, sir. Where did and the three (3) policemen conduct the search? They requested Mrs. Agustin to make the halungkat and they were only watching her, sir. Aside from you, Mrs. Agustin and the three (3) policemen, who else was or were inside the house? No more, sir. How about Ely Agustin? He was conversing with the Chief of Police, sir. And while Mrs. Agustin was the one who was actually making the search, as requested by the three (3) policemen, what happened? None, sir. They did not see anything. Nothing was found. In what place of the house did Mrs. Agustin do the halungkat or the search? At the duag (extension). We entered from the north which is actually the duag (extension) of the house and then proceeded towards the west, and then, towards the south, and then, we entered the main building, sir. Then, what happened next? While we were already about through, a certain policeman shouted that he found something near the door of the annex, sir, the place where we first entered. But that policeman was not one of those who entered the house to conduct the search. The three (3) policemen, you and Mrs. Agustin were still inside the main house when that policeman shouted that he found something? Yes, sir. What were the three (3) policemen actually doing when you heard the shout of that policemen? They were still inside the house, but I did not pay particular attention what they were actually doing, sir.

Q. A. Q. A. Q. A. Q. A.

Q. A.

Q. A. Q. A.

xxxx Q. A. After hearing the shouts of that policeman that he found something, what did you, personally, do? I was taken aback and so I went out to see what it was all about, sir.

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Q. A. Q. A. Q. A.

Among you five (5), who went out of the house first? I was the one, sir. Who followed you next? I cannot remember who followed me, sir. You said you went out to see what they found. What did you see? There was a sort of an open shelf and on the second rung where they placed the floor mat, the gun was there, sir. You said there was a floor mat and then the gun. Which was exposed, the floor mat or the gun? Only the barrel of the gun was hidden, sir.

Q. A. Court

Q. The body of the gun was exposed when you saw it? A. Yes, Your Honor. x x x x (Emphasis and underscoring supplied)

Yabes had to go out of the house to see what was found at the duag or extension. Yabes further testified:

Q.

A. Q. A. Q. A. Court Q. A.

From the time you heard the shouts of the policemen, up to the time you went out and saw the barrel covered by the floor mat, how many seconds or minutes elapsed? Less than a minute because I rushed outside, sir. From the time you rushed outside after hearing the shouts that something was found, did you see any person near the place? Some policemen, sir. What were those policemen doing when you saw them? They were looking at the gun, sir.

Did you see any policeman placed [sic] the gun there? No, your Honor, because I was far.

App Gascon Q. A. Court Q. Let us clarify this. Is that shelf outside [or] inside of the extension? The place where you were standing near the door of the main house, could you see the place where the shelf is? No, sir.

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A.

Inside the extension, just beside the door, Your Honor.

Although Yabes did not see that the gun was planted, neither could he attest that the gun was not planted. In fact, P/Insp. Baldovino testified that Yabes refused to sign the receipt, Exhibit O, wherein it is stated that the seizure was done in the presence of Yabes, for reasons he (Baldovino) does not know. And yet, Yabes, when asked about Exhibit O, testified, thus:

Q.

A. Q. A.

Showing to you another document related to this which you were earlier confronted by the Fiscal, Exh. O, there is a statement here that the seized property was found in the presence of Ignacio Yabes and that in his testimony before this court, Police Inspector Baldovino testified that when you were aked [sic] to sign this piece of paper, you refused. Can you recall now? I was not shown any paper, except Exh. E, Your Honor. What can you say then to the testimony of Police Inspector Baldovino that you refused to sign Exh. O? I never refused, Your Honor, to sign Exh. O. I could not have refused because they did not show any paper and had they shown to me, I must have uttered some derogatory remarks against them. Exh. O purports to show that a gun, caliber .38 with serial number 439575 with five (5) live ammunitions for caliber .38 were seized from the residence of Ely Agustin at Sitio Padual, Brgy. Pug-os, Cabugao, Ilocos Sur on October 6, 1995. What can you say then with respect to the contents of Exh. O? Do you agree that a gun, caliber .38, with five (5) live ammunitions were seized from the house of Ely Agustin, in your presence? As I have testified earlier, Your Honor, the gun was not found by the policemen who conducted the search of the house. It was only mentioned by a policeman outside that the gun was seen at the shelf, second rung, with a floor mat covering the barrel. (Emphasis supplied)

Q.

A.

The testimonies of the other prosecution witnesses further muddled the prosecution evidence with more inconsistencies as to matters material to the determination of whether a gun had in fact been found in the house of petitioner. SPO4 Peneyra testified that Yabes stayed outside of the house during the search; whereas SPO1 Jara testified that Yabes was inside, at the sala, but the latter saw the gun only when SPO1 Cabaya raised it. Such inconsistencies on the material details of the firearm's discovery are so glaring that they ought not to have been ignored or brushed aside by the lower courts. The contradictions of the prosecution witnesses not only undermine all efforts to reconstruct the event in question, but altogether erode the evidentiary value of the prosecution evidence. Given the incoherent story presented by the prosecution, it is hardly persuasive that SPO1 Cabaya indeed found the firearm in a regular manner. Serious doubts are raised on whether petitioner really possessed or owned that weapon and hid it in his house. On the face of the contradicting evidence presented by the prosecution, petitioner's denial and his wife's emphatic claim of frame-up from day one, that is, at the time and on the very spot of the alleged discovery of the gun, gained substantial significance.

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Although the Court has held that frame-up is inherently one of the weakest defenses, as it is both easily concocted and difficult to prove, in the present case, the lower courts seriously erred in ignoring the weakness of the prosecution's evidence and its failure to prove the guilt of petitioner beyond reasonable doubt. The rule requiring a claim of frame-up to be supported by clear and convincing evidence was never intended to shift to the accused the burden of proof in a criminal case. As the Court held in People of the Philippines v. Ambih:

[W]hile the lone defense of the accused that he was the victim of a frame-up is easily fabricated, this claim assumes importance when faced with the rather shaky nature of the prosecution evidence. It is well to remember that the prosecution must rely, not on the weakness of the defense evidence, but rather on its own proof which must be strong enough to convince this Court that the prisoner in the dock deserves to be punished. The constitutional presumption is that the accused is innocent even if his defense is weak as long as the prosecution is not strong enough to convict him. (Emphasis supplied) In People of the Philippines v. Gonzales, the Court held that where there was material and unexplained inconsistency between the testimonies of two principal prosecution witnesses relating not to inconsequential details but to the alleged transaction itself which is subject of the case, the inherent improbable character of the testimony given by one of the two principal prosecution witnesses had the effect of vitiating the testimony given by the other principal prosecution witness. The Court ruled that it cannot just discard the improbable testimony of one officer and adopt the testimony of the other that is more plausible. In such a situation, both testimonies lose their probative value. The Court further held: Why should two (2) police officers give two (2) contradictory descriptions of the same sale transaction, which allegedly took place before their very eyes, on the same physical location and on the same occasion? We must conclude that a reasonable doubt was generated as to whether or not the "buy-bust" operation ever took place. In the present case, to repeat, the glaring contradictory testimonies of the prosecution witnesses generate serious doubt as to whether a firearm was really found in the house of petitioner. The prosecution utterly failed to discharge its burden of proving that petitioner is guilty of illegal possession of firearms beyond reasonable doubt. The constitutional presumption of innocence of petitioner has not been demolished and therefore petitioner should be acquitted of the crime he was with. WHEREFORE, the petition is GRANTED. The Decisions of the Court of Appeals and the Regional Trial Court of Cabugao, Ilocos Sur are REVERSED and SET ASIDE. The petitioner is ACQUITTED of the crime charged in Criminal Case No. 1651-K.

SO ORDERED.

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G.R. No. 162059 January 22, 2008 HANNAH EUNICE D. SERANA, Petitioner, - versus SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, Respondents. DECISION

REYES, R.T., J.:

CAN the Sandiganbayan try a government scholar** accused, along with her brother, of swindling government funds? MAAARI bang litisin ng Sandiganbayan ang isang iskolar ng bayan, at ang kanyang kapatid, na kapwa pinararatangan ng estafa ng pera ng bayan? The jurisdictional question is posed in this petition for certiorari assailing the Resolutions of the Sandiganbayan, Fifth Division, denying petitioners motion to quash the information and her motion for reconsideration. The Antecedents Petitioner Hannah Eunice D. Serana was a senior student of the University of the Philippines-Cebu. A student of a state university is known as a government scholar. She was appointed by then President Joseph Estrada on December 21, 1999 as a student regent of UP, to serve a one-year term starting January 1, 2000 and ending on December 31, 2000. In the early part of 2000, petitioner discussed with President Estrada the renovation of Vinzons Hall Annex in UP Diliman. On September 4, 2000, petitioner, with her siblings and relatives, registered with the Securities and Exchange Commission the Office of the Student Regent Foundation, Inc. (OSRFI). One of the projects of the OSRFI was the renovation of the Vinzons Hall Annex. President Estrada gave Fifteen Million Pesos (P15,000,000.00) to the OSRFI as financial assistance for the proposed renovation. The source of the funds, according to the information, was the Office of the President. The renovation of Vinzons Hall Annex failed to materialize. The succeeding student regent, Kristine Clare Bugayong, and Christine Jill De Guzman, Secretary General of the KASAMA sa U.P., a system-wide alliance of student councils within the state university, consequently filed a complaint for Malversation of Public Funds and Property with the Office of the Ombudsman.

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On July 3, 2003, the Ombudsman, after due investigation, found probable cause to indict petitioner and her brother Jade Ian D. Serana for estafa, docketed as Criminal Case No. 27819 of the Sandiganbayan. The Information reads: The undersigned Special Prosecution Officer III, Office of the Special Prosecutor, hereby accuses HANNAH EUNICE D. SERANA and JADE IAN D. SERANA of the crime of Estafa, defined and penalized under Paragraph 2(a), Article 315 of the Revised Penal Code, as amended committed as follows: That on October, 24, 2000, or sometime prior or subsequent thereto, in Quezon City, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, above-named accused, HANNAH EUNICE D. SERANA, a highranking public officer, being then the Student Regent of the University of the Philippines, Diliman, Quezon City, while in the performance of her official functions, committing the offense in relation to her office and taking advantage of her position, with intent to gain, conspiring with her brother, JADE IAN D. SERANA, a private individual, did then and there wilfully, unlawfully and feloniously defraud the government by falsely and fraudulently representing to former President Joseph Ejercito Estrada that the renovation of the Vinzons Hall of the University of the Philippines will be renovated and renamed as President Joseph Ejercito Estrada Student Hall, and for which purpose accused HANNAH EUNICE D. SERANA requested the amount of FIFTEEN MILLION PESOS (P15,000,000.00), Philippine Currency, from the Office of the President, and the latter relying and believing on said false pretenses and misrepresentation gave and delivered to said accused Land Bank Check No. 91353 dated October 24, 2000 in the amount of FIFTEEN MILLION PESOS (P15,000,000.00), which check was subsequently encashed by accused Jade Ian D. Serana on October 25, 2000 and misappropriated for their personal use and benefit, and despite repeated demands made upon the accused for them to return aforesaid amount, the said accused failed and refused to do so to the damage and prejudice of the government in the aforesaid amount. CONTRARY TO LAW. (Underscoring supplied) Petitioner moved to quash the information. She claimed that the Sandiganbayan does not have any jurisdiction over the offense charged or over her person, in her capacity as UP student regent. Petitioner claimed that Republic Act (R.A.) No. 3019, as amended by R.A. No. 8249, enumerates the crimes or offenses over which the Sandiganbayan has jurisdiction. It has no jurisdiction over the crime of estafa. It only has jurisdiction over crimes covered by Title VII, Chapter II, Section 2 (Crimes Committed by Public Officers), Book II of the Revised Penal Code (RPC). Estafa falling under Title X, Chapter VI (Crimes Against Property), Book II of the RPC is not within the Sandiganbayans jurisdiction. She also argued that it was President Estrada, not the government, that was duped. Even assuming that she received the P15,000,000.00, that amount came from Estrada, not from the coffers of the government. Petitioner likewise posited that the Sandiganbayan had no jurisdiction over her person. As a student regent, she was not a public officer since she merely represented her peers, in contrast to the other regents who held their positions in an ex officio capacity. She added that she was a simple student and did not receive any salary as a student regent.

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She further contended that she had no power or authority to receive monies or funds. Such power was vested with the Board of Regents (BOR) as a whole. Since it was not alleged in the information that it was among her functions or duties to receive funds, or that the crime was committed in connection with her official functions, the same is beyond the jurisdiction of the Sandiganbayan citing the case of Soller v. Sandiganbayan. The Ombudsman opposed the motion. It disputed petitioners interpretation of the law. Section 4(b) of Presidential Decree (P.D.) No. 1606 clearly contains the catch-all phrase in relation to office, thus, the Sandiganbayan has jurisdiction over the charges against petitioner. In the same breath, the prosecution countered that the source of the money is a matter of defense. It should be threshed out during a full-blown trial. According to the Ombudsman, petitioner, despite her protestations, was a public officer. As a member of the BOR, she had the general powers of administration and exercised the corporate powers of UP. Based on Mechems definition of a public office, petitioners stance that she was not compensated, hence, not a public officer, is erroneous. Compensation is not an essential part of public office. Parenthetically, compensation has been interpreted to include allowances. By this definition, petitioner was compensated. Sandiganbayan Disposition In a Resolution dated November 14, 2003, the Sandiganbayan denied petitioners motion for lack of merit. It ratiocinated: The focal point in controversy is the jurisdiction of the Sandiganbayan over this case. It is extremely erroneous to hold that only criminal offenses covered by Chapter II, Section 2, Title VII, Book II of the Revised Penal Code are within the jurisdiction of this Court. As correctly pointed out by the prosecution, Section 4(b) of R.A. 8249 provides that the Sandiganbayan also has jurisdiction over other offenses committed by public officials and employees in relation to their office. From this provision, there is no single doubt that this Court has jurisdiction over the offense of estafa committed by a public official in relation to his office. Accused-movants claim that being merely a member in representation of the student body, she was never a public officer since she never received any compensation nor does she fall under Salary Grade 27, is of no moment, in view of the express provision of Section 4 of Republic Act No. 8249 which provides: Sec. 4. Jurisdiction The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving: (A) x x x

(1) Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as Grade 27 and higher, of the Compensation and Position Classification Act of 1989 (Republic Act No. 6758), specifically including: xxxx

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(g) Presidents, directors or trustees, or managers of government-owned or controlled corporations, state universities or educational institutions or foundations. (Italics supplied)

It is very clear from the aforequoted provision that the Sandiganbayan has original exclusive jurisdiction over all offenses involving the officials enumerated in subsection (g), irrespective of their salary grades, because the primordial consideration in the inclusion of these officials is the nature of their responsibilities and functions. Is accused-movant included in the contemplated provision of law? A meticulous review of the existing Charter of the University of the Philippines reveals that the Board of Regents, to which accused-movant belongs, exclusively exercises the general powers of administration and corporate powers in the university, such as: 1) To receive and appropriate to the ends specified by law such sums as may be provided by law for the support of the university; 2) To prescribe rules for its own government and to enact for the government of the university such general ordinances and regulations, not contrary to law, as are consistent with the purposes of the university; and 3) To appoint, on recommendation of the President of the University, professors, instructors, lecturers and other employees of the University; to fix their compensation, hours of service, and such other duties and conditions as it may deem proper; to grant to them in its discretion leave of absence under such regulations as it may promulgate, any other provisions of law to the contrary notwithstanding, and to remove them for cause after an investigation and hearing shall have been had. It is well-established in corporation law that the corporation can act only through its board of directors, or board of trustees in the case of non-stock corporations. The board of directors or trustees, therefore, is the governing body of the corporation. It is unmistakably evident that the Board of Regents of the University of the Philippines is performing functions similar to those of the Board of Trustees of a non-stock corporation. This draws to fore the conclusion that being a member of such board, accused-movant undoubtedly falls within the category of public officials upon whom this Court is vested with original exclusive jurisdiction, regardless of the fact that she does not occupy a position classified as Salary Grade 27 or higher under the Compensation and Position Classification Act of 1989. Finally, this court finds that accused-movants contention that the same of P15 Million was received from former President Estrada and not from the coffers of the government, is a matter a defense that should be properly ventilated during the trial on the merits of this case. On November 19, 2003, petitioner filed a motion for reconsideration. The motion was denied with finality in a Resolution dated February 4, 2004. Issue

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Petitioner is now before this Court, contending that THE RESPONDENT COURT COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK AND/OR EXCESS OF JURISDICTION IN NOT QUASHING THE INFORMATION AND DISMISING THE CASE NOTWITHSTANDING THAT IS HAS NO JURISDICTION OVER THE OFFENSE CHARGED IN THE INFORMATION. In her discussion, she reiterates her four-fold argument below, namely: (a) the Sandiganbayan has no jurisdiction over estafa; (b) petitioner is not a public officer with Salary Grade 27 and she paid her tuition fees; (c) the offense charged was not committed in relation to her office; (d) the funds in question personally came from President Estrada, not from the government. Our Ruling The petition cannot be granted. Preliminarily, the denial of a motion to quash is not correctible by certiorari. We would ordinarily dismiss this petition for certiorari outright on procedural grounds. Well-established is the rule that when a motion to quash in a criminal case is denied, the remedy is not a petition for certiorari, but for petitioners to go to trial, without prejudice to reiterating the special defenses invoked in their motion to quash. Remedial measures as regards interlocutory orders, such as a motion to quash, are frowned upon and often dismissed. The evident reason for this rule is to avoid multiplicity of appeals in a single action. In Newsweek, Inc. v. Intermediate Appellate Court, the Court clearly explained and illustrated the rule and the exceptions, thus: As a general rule, an order denying a motion to dismiss is merely interlocutory and cannot be subject of appeal until final judgment or order is rendered. (Sec. 2 of Rule 41). The ordinary procedure to be followed in such a case is to file an answer, go to trial and if the decision is adverse, reiterate the issue on appeal from the final judgment. The same rule applies to an order denying a motion to quash, except that instead of filing an answer a plea is entered and no appeal lies from a judgment of acquittal. This general rule is subject to certain exceptions. If the court, in denying the motion to dismiss or motion to quash, acts without or in excess of jurisdiction or with grave abuse of discretion, then certiorari or prohibition lies. The reason is that it would be unfair to require the defendant or accused to undergo the ordeal and expense of a trial if the court has no jurisdiction over the subject matter or offense, or is not the court of proper venue, or if the denial of the motion to dismiss or motion to quash is made with grave abuse of discretion or a whimsical and capricious exercise of judgment. In such cases, the ordinary remedy of appeal cannot be plain and adequate. The following are a few examples of the exceptions to the general rule. In De Jesus v. Garcia (19 SCRA 554), upon the denial of a motion to dismiss based on lack of jurisdiction over the subject matter, this Court granted the petition for certiorari and prohibition against the City Court of Manila and directed the respondent court to dismiss the case.

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In Lopez v. City Judge (18 SCRA 616), upon the denial of a motion to quash based on lack of jurisdiction over the offense, this Court granted the petition for prohibition and enjoined the respondent court from further proceeding in the case.

In Enriquez v. Macadaeg (84 Phil. 674), upon the denial of a motion to dismiss based on improper venue, this Court granted the petition for prohibition and enjoined the respondent judge from taking cognizance of the case except to dismiss the same. In Manalo v. Mariano (69 SCRA 80), upon the denial of a motion to dismiss based on bar by prior judgment, this Court granted the petition for certiorari and directed the respondent judge to dismiss the case. In Yuviengco v. Dacuycuy (105 SCRA 668), upon the denial of a motion to dismiss based on the Statute of Frauds, this Court granted the petition for certiorari and dismissed the amended complaint. In Tacas v. Cariaso (72 SCRA 527), this Court granted the petition for certiorari after the motion to quash based on double jeopardy was denied by respondent judge and ordered him to desist from further action in the criminal case except to dismiss the same. In People v. Ramos (83 SCRA 11), the order denying the motion to quash based on prescription was set aside on certiorari and the criminal case was dismissed by this Court. We do not find the Sandiganbayan to have committed a grave abuse of discretion. The jurisdiction of the Sandiganbayan is set by P.D. No. 1606, as amended, not by R.A. No. 3019, as amended. We first address petitioners contention that the jurisdiction of the Sandiganbayan is determined by Section 4 of R.A. No. 3019 (The Anti-Graft and Corrupt Practices Act, as amended). We note that petitioner refers to Section 4 of the said law yet quotes Section 4 of P.D. No. 1606, as amended, in her motion to quash before the Sandiganbayan. She repeats the reference in the instant petition for certiorari and in her memorandum of authorities. We cannot bring ourselves to write this off as a mere clerical or typographical error. It bears stressing that petitioner repeated this claim twice despite corrections made by the Sandiganbayan. Her claim has no basis in law. It is P.D. No. 1606, as amended, rather than R.A. No. 3019, as amended, that determines the jurisdiction of the Sandiganbayan. A brief legislative history of the statute creating the Sandiganbayan is in order. The Sandiganbayan was created by P.D. No. 1486, promulgated by then President Ferdinand E. Marcos on June 11, 1978. It was promulgated to attain the highest norms of official conduct required of public officers and employees, based on the concept that public officers and employees shall serve with the

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highest degree of responsibility, integrity, loyalty and efficiency and shall remain at all times accountable to the people. P.D. No. 1486 was, in turn, amended by P.D. No. 1606 which was promulgated on December 10, 1978. P.D. No. 1606 expanded the jurisdiction of the Sandiganbayan. P.D. No. 1606 was later amended by P.D. No. 1861 on March 23, 1983, further altering the Sandiganbayan jurisdiction. R.A. No. 7975 approved on March 30, 1995 made succeeding amendments to P.D. No. 1606, which was again amended on February 5, 1997 by R.A. No. 8249. Section 4 of R.A. No. 8249 further modified the jurisdiction of the Sandiganbayan. As it now stands, the Sandiganbayan has jurisdiction over the following: Sec. 4. Jurisdiction. - The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving: A. Violations of Republic Act No. 3019, as amended, other known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII, Book II of the Revised Penal Code, where one or more of the accused are officials occupying the following positions in the government, whether in a permanent, acting or interim capacity, at the time of the commission of the offense: (1) Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as Grade 27 and higher, of the Compensation and Position Classification Act of 989 (Republic Act No. 6758), specifically including: (a) Provincial governors, vice-governors, members of the sangguniang panlalawigan, and provincial treasurers, assessors, engineers, and other city department heads; (b) City mayor, vice-mayors, members of the sangguniang panlungsod, city treasurers, assessors, engineers, and other city department heads; (c) and higher; Officials of the diplomatic service occupying the position of consul

(d) Philippine army and air force colonels, naval captains, and all officers of higher rank; (e) Officers of the Philippine National Police while occupying the position of provincial director and those holding the rank of senior superintended or higher;

(f) City and provincial prosecutors and their assistants, and officials and prosecutors in the Office of the Ombudsman and special prosecutor; (g) Presidents, directors or trustees, or managers of governmentowned or controlled corporations, state universities or educational institutions or foundations.

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(2) Members of Congress and officials thereof classified as Grade 27 and up under the Compensation and Position Classification Act of 1989; (3) Members of the judiciary without prejudice to the provisions of the Constitution; (4) Chairmen and members of Constitutional Commission, without prejudice to the provisions of the Constitution; and (5) All other national and local officials classified as Grade 27 and higher under the Compensation and Position Classification Act of 1989. B. Other offenses of felonies whether simple or complexed with other crimes committed by the public officials and employees mentioned in subsection a of this section in relation to their office. C. Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986. In cases where none of the accused are occupying positions corresponding to Salary Grade 27 or higher, as prescribed in the said Republic Act No. 6758, or military and PNP officer mentioned above, exclusive original jurisdiction thereof shall be vested in the proper regional court, metropolitan trial court, municipal trial court, and municipal circuit trial court, as the case may be, pursuant to their respective jurisdictions as provided in Batas Pambansa Blg. 129, as amended. The Sandiganbayan shall exercise exclusive appellate jurisdiction over final judgments, resolutions or order of regional trial courts whether in the exercise of their own original jurisdiction or of their appellate jurisdiction as herein provided. The Sandiganbayan shall have exclusive original jurisdiction over petitions for the issuance of the writs of mandamus, prohibition, certiorari, habeas corpus, injunctions, and other ancillary writs and processes in aid of its appellate jurisdiction and over petitions of similar nature, including quo warranto, arising or that may arise in cases filed or which may be filed under Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986: Provided, That the jurisdiction over these petitions shall not be exclusive of the Supreme Court. The procedure prescribed in Batas Pambansa Blg. 129, as well as the implementing rules that the Supreme Court has promulgated and may thereafter promulgate, relative to appeals/petitions for review to the Court of Appeals, shall apply to appeals and petitions for review filed with the Sandiganbayan. In all cases elevated to the Sandiganbayan and from the Sandiganbayan to the Supreme Court, the Office of the Ombudsman, through its special prosecutor, shall represent the People of the Philippines, except in cases filed pursuant to Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986. In case private individuals are charged as co-principals, accomplices or accessories with the public officers or employees, including those employed in government-owned or controlled corporations, they shall be tried jointly with said public officers and employees in the proper courts which shall exercise exclusive jurisdiction over them.

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Any provisions of law or Rules of Court to the contrary notwithstanding, the criminal action and the corresponding civil action for the recovery of civil liability shall, at all times, be simultaneously instituted with, and jointly determined in, the same proceeding by the Sandiganbayan or the appropriate courts, the filing of the criminal action being deemed to necessarily carry with it the filing of the civil action, and no right to reserve the filing such civil action separately from the criminal action shall be recognized: Provided, however, That where the civil action had heretofore been filed separately but judgment therein has not yet been rendered, and the criminal case is hereafter filed with the Sandiganbayan or the appropriate court, said civil action shall be transferred to the Sandiganbayan or the appropriate court, as the case may be, for consolidation and joint determination with the criminal action, otherwise the separate civil action shall be deemed abandoned. Upon the other hand, R.A. No. 3019 is a penal statute approved on August 17, 1960. The said law represses certain acts of public officers and private persons alike which constitute graft or corrupt practices or which may lead thereto. Pursuant to Section 10 of R.A. No. 3019, all prosecutions for violation of the said law should be filed with the Sandiganbayan. R.A. No. 3019 does not contain an enumeration of the cases over which the Sandiganbayan has jurisdiction. In fact, Section 4 of R.A. No. 3019 erroneously cited by petitioner, deals not with the jurisdiction of the Sandiganbayan but with prohibition on private individuals. We quote: Section 4. Prohibition on private individuals. (a) It shall be unlawful for any person having family or close personal relation with any public official to capitalize or exploit or take advantage of such family or close personal relation by directly or indirectly requesting or receiving any present, gift or material or pecuniary advantage from any other person having some business, transaction, application, request or contract with the government, in which such public official has to intervene. Family relation shall include the spouse or relatives by consanguinity or affinity in the third civil degree. The word close personal relation shall include close personal friendship, social and fraternal connections, and professional employment all giving rise to intimacy which assures free access to such public officer. (b) It shall be unlawful for any person knowingly to induce or cause any public official to commit any of the offenses defined in Section 3 hereof. In fine, the two statutes differ in that P.D. No. 1606, as amended, defines the jurisdiction of the Sandiganbayan while R.A. No. 3019, as amended, defines graft and corrupt practices and provides for their penalties. Sandiganbayan has jurisdiction over the offense of estafa. Relying on Section 4 of P.D. No. 1606, petitioner contends that estafa is not among those crimes cognizable by the Sandiganbayan. We note that in hoisting this argument, petitioner isolated the first paragraph of Section 4 of P.D. No. 1606, without regard to the succeeding paragraphs of the said provision.

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The rule is well-established in this jurisdiction that statutes should receive a sensible construction so as to avoid an unjust or an absurd conclusion. Interpretatio talis in ambiguis semper fienda est, ut evitetur inconveniens et absurdum. Where there is ambiguity, such interpretation as will avoid inconvenience and absurdity is to be adopted. Kung saan mayroong kalabuan, ang pagpapaliwanag ay hindi dapat maging mahirap at katawa-tawa. Every section, provision or clause of the statute must be expounded by reference to each other in order to arrive at the effect contemplated by the legislature. The intention of the legislator must be ascertained from the whole text of the law and every part of the act is to be taken into view. In other words, petitioners interpretation lies in direct opposition to the rule that a statute must be interpreted as a whole under the principle that the best interpreter of a statute is the statute itself. Optima statuti interpretatrix est ipsum statutum. Ang isang batas ay marapat na bigyan ng kahulugan sa kanyang kabuuan sa ilalim ng prinsipyo na ang pinakamainam na interpretasyon ay ang mismong batas. Section 4(B) of P.D. No. 1606 reads: B. Other offenses or felonies whether simple or complexed with other crimes committed by the public officials and employees mentioned in subsection a of this section in relation to their office. Evidently, the Sandiganbayan has jurisdiction over other felonies committed by public officials in relation to their office. We see no plausible or sensible reason to exclude estafa as one of the offenses included in Section 4(B) of P.D. No. 1606. Plainly, estafa is one of those other felonies. The jurisdiction is simply subject to the twin requirements that (a) the offense is committed by public officials and employees mentioned in Section 4(A) of P.D. No. 1606, as amended, and that (b) the offense is committed in relation to their office.

In Perlas, Jr. v. People, the Court had occasion to explain that the Sandiganbayan has jurisdiction over an indictment for estafa versus a director of the National Parks Development Committee, a government instrumentality. The Court held then:

The National Parks Development Committee was created originally as an Executive Committee on January 14, 1963, for the development of the Quezon Memorial, Luneta and other national parks (Executive Order No. 30). It was later designated as the National Parks Development Committee (NPDC) on February 7, 1974 (E.O. No. 69). On January 9, 1966, Mrs. Imelda R. Marcos and Teodoro F. Valencia were designated Chairman and Vice-Chairman respectively (E.O. No. 3). Despite an attempt to transfer it to the Bureau of Forest Development, Department of Natural Resources, on December 1, 1975 (Letter of Implementation No. 39, issued pursuant to PD No. 830, dated November 27, 1975), the NPDC has remained under the Office of the President (E.O. No. 709, dated July 27, 1981). Since 1977 to 1981, the annual appropriations decrees listed NPDC as a regular government agency under the Office of the President and allotments for its maintenance and operating expenses were issued direct to NPDC (Exh. 10-A, Perlas, Item Nos. 2, 3).

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The Sandiganbayans jurisdiction over estafa was reiterated with greater firmness in Bondoc v. Sandiganbayan. Pertinent parts of the Courts ruling in Bondoc read: Furthermore, it is not legally possible to transfer Bondocs cases to the Regional Trial Court, for the simple reason that the latter would not have jurisdiction over the offenses. As already above intimated, the inability of the Sandiganbayan to hold a joint trial of Bondocs cases and those of the government employees separately charged for the same crimes, has not altered the nature of the offenses charged, as estafa thru falsification punishable by penalties higher than prision correccional or imprisonment of six years, or a fine of P6,000.00, committed by government employees in conspiracy with private persons, including Bondoc. These crimes are within the exclusive, original jurisdiction of the Sandiganbayan. They simply cannot be taken cognizance of by the regular courts, apart from the fact that even if the cases could be so transferred, a joint trial would nonetheless not be possible. Petitioner UP student regent is a public officer. Petitioner also contends that she is not a public officer. She does not receive any salary or remuneration as a UP student regent. This is not the first or likely the last time that We will be called upon to define a public officer. In Khan, Jr. v. Office of the Ombudsman, We ruled that it is difficult to pin down the definition of a public officer. The 1987 Constitution does not define who are public officers. Rather, the varied definitions and concepts are found in different statutes and jurisprudence. In Aparri v. Court of Appeals, the Court held that: A public office is the right, authority, and duty created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercise by him for the benefit of the public ([Mechem Public Offices and Officers,] Sec. 1). The right to hold a public office under our political system is therefore not a natural right. It exists, when it exists at all only because and by virtue of some law expressly or impliedly creating and conferring it (Mechem Ibid., Sec. 64). There is no such thing as a vested interest or an estate in an office, or even an absolute right to hold office. Excepting constitutional offices which provide for special immunity as regards salary and tenure, no one can be said to have any vested right in an office or its salary (42 Am. Jur. 881). In Laurel v. Desierto, the Court adopted the definition of Mechem of a public office: A public office is the right, authority and duty, created and conferred by law, by which, for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public. The individual so invested is a public officer. Petitioner claims that she is not a public officer with Salary Grade 27; she is, in fact, a regular tuition fee-paying student. This is likewise bereft of merit. It is not only the salary grade that determines the jurisdiction of the Sandiganbayan. The Sandiganbayan also has jurisdiction over other officers enumerated in P.D. No. 1606. In Geduspan v. People, We

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held that while the first part of Section 4(A) covers only officials with Salary Grade 27 and higher, its second part specifically includes other executive officials whose positions may not be of Salary Grade 27 and higher but who are by express provision of law placed under the jurisdiction of the said court. Petitioner falls under the jurisdiction of the Sandiganbayan as she is placed there by express provision of law. Section 4(A)(1)(g) of P.D. No. 1606 explictly vested the Sandiganbayan with jurisdiction over Presidents, directors or trustees, or managers of government-owned or controlled corporations, state universities or educational institutions or foundations. Petitioner falls under this category. As the Sandiganbayan pointed out, the BOR performs functions similar to those of a board of trustees of a non-stock corporation. By express mandate of law, petitioner is, indeed, a public officer as contemplated by P.D. No. 1606. Moreover, it is well established that compensation is not an essential element of public office. At most, it is merely incidental to the public office. Delegation of sovereign functions is essential in the public office. An investment in an individual of some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public makes one a public officer. The administration of the UP is a sovereign function in line with Article XIV of the Constitution. UP performs a legitimate governmental function by providing advanced instruction in literature, philosophy, the sciences, and arts, and giving professional and technical training. Moreover, UP is maintained by the Government and it declares no dividends and is not a corporation created for profit. The offense charged was committed in relation to public office, according to the Information. Petitioner likewise argues that even assuming that she is a public officer, the Sandiganbayan would still not have jurisdiction over the offense because it was not committed in relation to her office. According to petitioner, she had no power or authority to act without the approval of the BOR. She adds there was no Board Resolution issued by the BOR authorizing her to contract with then President Estrada; and that her acts were not ratified by the governing body of the state university. Resultantly, her act was done in a private capacity and not in relation to public office. It is axiomatic that jurisdiction is determined by the averments in the information. More than that, jurisdiction is not affected by the pleas or the theories set up by defendant or respondent in an answer, a motion to dismiss, or a motion to quash. Otherwise, jurisdiction would become dependent almost entirely upon the whims of defendant or respondent. In the case at bench, the information alleged, in no uncertain terms that petitioner, being then a student regent of U.P., while in the performance of her official functions, committing the offense in relation to her office and taking advantage of her position, with intent to gain, conspiring with her brother, JADE IAN D. SERANA, a private individual, did then and there wilfully, unlawfully and feloniously defraud the government x x x. (Underscoring supplied)

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Clearly, there was no grave abuse of discretion on the part of the Sandiganbayan when it did not quash the information based on this ground. Source of funds is a defense that should be raised during trial on the merits. It is contended anew that the amount came from President Estradas private funds and not from the government coffers. Petitioner insists the charge has no leg to stand on. We cannot agree. The information alleges that the funds came from the Office of the President and not its then occupant, President Joseph Ejercito Estrada. Under the information, it is averred that petitioner requested the amount of Fifteen Million Pesos (P15,000,000.00), Philippine Currency, from the Office of the President, and the latter relying and believing on said false pretenses and misrepresentation gave and delivered to said accused Land Bank Check No. 91353 dated October 24, 2000 in the amount of Fifteen Million Pesos (P15,000,000.00). Again, the Court sustains the Sandiganbayan observation that the source of the P15,000,000 is a matter of defense that should be ventilated during the trial on the merits of the instant case. A lawyer owes candor, fairness and honesty to the Court. As a parting note, petitioners counsel, Renato G. dela Cruz, misrepresented his reference to Section 4 of P.D. No. 1606 as a quotation from Section 4 of R.A. No. 3019. A review of his motion to quash, the instant petition for certiorari and his memorandum, unveils the misquotation. We urge petitioners counsel to observe Canon 10 of the Code of Professional Responsibility, specifically Rule 10.02 of the Rules stating that a lawyer shall not misquote or misrepresent. The Court stressed the importance of this rule in Pangan v. Ramos, where Atty Dionisio D. Ramos used the name Pedro D.D. Ramos in connection with a criminal case. The Court ruled that Atty. Ramos resorted to deception by using a name different from that with which he was authorized. We severely reprimanded Atty. Ramos and warned that a repetition may warrant suspension or disbarment. We admonish petitioners counsel to be more careful and accurate in his citation. A lawyers conduct before the court should be characterized by candor and fairness. The administration of justice would gravely suffer if lawyers do not act with complete candor and honesty before the courts.

WHEREFORE, the petition is DENIED for lack of merit.

SO ORDERED.

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G.R. Nos. 147578-85 ROLANDO L. BALDERAMA, Petitioner, -versusPEOPLE OF THE PHILIPPINES and JUAN ARMAMENTO, Respondents. x------------------------------------------x G.R. Nos. 147598-605 ROLANDO D. NAGAL, Petitioner, -versusJUAN S. ARMAMENTO, Private Respondent, and THE SPECIAL PROSECUTOR, Public Respondent.

DECISION

SANDOVAL-GUTIERREZ, J.: Before us are two consolidated petitions for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, as amended, seeking to reverse the Joint Decision of the Sandiganbayan dated November 17, 2000 in Criminal Cases Nos. 20669, 20670, 20672, 20674, 20675, 20676, 20677, and 20678; and its Resolution dated March 20, 2001.

Rolando L. Balderama, petitioner in G.R. Nos. 147578-85, and Rolando D. Nagal, petitioner in G.R. Nos. 147598-605, were employed with the Land Transportation Commission (LTO) assigned to the Field Enforcement Division, Law Enforcement Services. Juan S. Armamento, respondent in both cases, operates a taxi business with a fleet of ten (10) taxi units.

Acting on complaints that taxi drivers in the Ninoy Aquino International Airport discriminate against passengers and would transport them to their destinations only on a contract basis, the LTO created a team to look into the veracity of the complaints. Petitioners in these cases were members of the team, popularly known as Flying Squad, together with Cipriano L. Lubrica and Cresencio de Jesus.

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On July 14, 1992, the team flagged down for inspection an SJ Taxi owned by respondent. The team impounded the taxi on the ground that its meter was defective. However, upon inspection and testing by the LTO Inspection Division, the results showed that contrary to the report of the team, the meter waiting time mechanism of the vehicle was not defective and was functioning normally. The vehicle was released to respondent.

On December 2, 1992, respondent, feeling aggrieved of the malicious impounding of his vehicle, filed with the Office of the Ombudsman a complaint for bribery and violation of Section 3(e) of Republic Act (R.A.) No. 3019, as amended, against herein petitioners as well as Lubrica and de Jesus. He alleged that prior to the impounding of his taxi, the four LTO officers had been collecting protection money from him. On February 15, 1992, they went to his office and proposed they would not apprehend his drivers and impound his vehicles for violations of LTO rules, provided he gives them the amount of P400.00 every 15th and 30th day of the month. They agreed to the reduced amount of P300.00. On the same day, he started giving them P300.00 and from then on, every 15th and 30th day of the month until June 15, 1992. Thereafter, he failed to give them the agreed amount because his business was not doing well.

Eventually, the Office of the Ombudsman filed with the Sandiganbayan nine (9) Informations for violations of Article 210 of the Revised Penal Code against petitioners and the other members of the team, docketed as Criminal Cases Nos. 20669-20677. All the Informations were identically worded, except the date of the commission of the crimes. For brevity, we reproduce the Information in Criminal Case No. 20669 as sample, thus:

Criminal Case No. 20669 That on or about February 15, 1992 or for sometime prior thereto in Makati, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused all public officers, being all employees of the Land transportation Office assigned with the Field Enforcement Division, Law Enforcement Services, committing the offense in relation to their office and taking advantage of their position, did then and there willfully, unlawfully and feloniously solicit, demand and receive from Juan Armamento, a taxicab operator, the amount of P300.00 in consideration for the said accused refraining from performing their official duty of conducting inspections on the taxicab units being operated by said Juan Armamento to determine any possible violation of LTO rules and regulations, thereby causing Juan Armamento and the public service damage and prejudice. CONTRARY TO LAW.

They were also charged with violation of Section 3(e) of R.A. No. 3019, as amended. The Information, docketed as Criminal Case No. 20678, reads:

That on or about July 14, 1992 or for sometime prior or subsequent thereto, in Metro Manila, Philippines and within the jurisdiction of this Honorable Court, all accused public officers, being employees of the Land transportation Office, assigned with the Field Enforcement Division, Law Enforcement Services, while in the discharge of their official administrative functions, did then and there willfully, unlawfully and criminally cause undue injury to Juan Armamento, a taxicab operator, through evident bad faith by apprehending and impounding one (1) unit of his taxicab with Plate No. PKD-726 for alleged violation of LTO rules and regulations, in that, its meter is defective (waiting time not functioning), which was later on established to be not true, thereby depriving said Juan Armamento of the use of his taxicab unit for about three (3) days and to realize income thereon for the same period, as well as incur unnecessary expenses in effecting the release of his impounded unit from the impounding area of the LTO. CONTRARY TO LAW.

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Upon arraignment on June 30, 1994, the accused, assisted by counsel, pleaded not guilty. The cases were consolidated and tried jointly. Prior thereto, they were suspended pendente lite from the service for a period of ninety (90) days.

On March 5, 1999, accused de Jesus died. The cases against him were dismissed. The hearing proceeded against petitioners and Lubrica.

In a Decision dated November 17, 2000, the Sandiganbayan found petitioners and Lubrica guilty of direct bribery in seven (7) of the nine (9) Informations filed against them and were sentenced in each count to suffer the indeterminate penalty of imprisonment of 4 years and 2 months, as minimum, to 5 years, 4 months and 20 days, as maximum, within the range of prision correccional, and to suffer the penalty of special temporary disqualification. They were further ordered to pay a fine of P300.00 without subsidiary imprisonment in case of insolvency and to restitute the amount of P300.00 as alleged in the Informations. They were acquitted in Criminal Cases Nos. 20671 and 20673 for failure of the prosecution to establish their guilt beyond reasonable doubt.

Petitioners and Lubrica were also convicted in Criminal Case No. 20678 for violation of Section 3(e) of R.A. No. 3019, as amended, and were sentenced to suffer imprisonment of six (6) years and one (1) month, as minimum, to ten (10) years and one (1) day, as maximum. They were also disqualified perpetually from holding public office and were ordered to indemnify the respondent the amount of P1,500.00, representing his lost income for the 3-day period that the taxi cab remained in the LTO impounding unit.

Petitioners and Lubrica filed separate motions for reconsideration arguing that they were not yet grouped as a team on February 15, 1992, hence, there could be no conspiracy. While the motion was pending resolution, both petitioners filed separate motions for new trial based on an affidavit dated December 22, 2000 executed by respondent recanting his previous testimony and pointing to Lubrica and de Jesus as the only culprits.

On March 20, 2001, the Sandiganbayan denied the motions for reconsideration and the motions for new trial. In denying the motions for reconsideration, the Sandiganbayan ruled:

Anent the second argument, the Supreme Court has made these pronouncements: Direct proof is not essential to prove conspiracy, as it may be shown by acts and circumstances from which may logically be inferred the existence of a common design, or may be deduced from the mode and manner in which the offense was perpetuated. (see People v. Cabiling, 74 SCRA 785; People v. Tingson, 47 SCRA 243; People v. Alonso, 73 SCRA 484). Thus, for failure of the accused to controvert prosecutions evidence that all four of them went to the office of the private complainant on February 15, 1992 and offered him to refrain from subjecting his taxi units to apprehension for notation of LTO rules, provided that he comes across with the amount of P400.00 (later reduced to P300.00) to be delivered twice a month and it was accused Nagal who received the P300.00 on April 30, 1992, Balderama on May 30, in the presence of de Jesus, Lubrica on February 15, February 28 together with Nagal, March 30 and June 15, and that in fact, Manimtim witnessed the incident which occurred on May 15 and February 15, 1992 and saw Balderama and de Jesus waiting in the mobile car together with Nagal, this Courts finding of conspiracy holds.

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In denying the motions for new trial, the Sandiganbayan held:

Retraction of testimonies previously given in Court are viewed with disfavor. As a general rule, a motion for new trial will not be granted if based on an affidavit of a witness where the effect is to free the appellant from participation in the commission of the crime. The recantation made by the private complainant after the conviction of the accused is unreliable and deserves scant consideration. In the case of People v. Soria, 262 SCRA 739, the Supreme Court declared: Indeed, it would be dangerous rule to reject the testimony taken before the Court of justice simply because the witness later changed his mind for one reason or another, for such a rule will make a solemn trial a mockery and will place the investigation of truth at the mercy of unscrupulous witnesses. It bears stressing that a testimony in court is made under conditions calculated to discourage and forestall falsehood.

Both petitioners filed with this Court separate petitions for review on certiorari, both arguing that the Sandiganbayan erred: (1) in finding that they are guilty of the offenses charged; (2) in holding that petitioners and their co-accused acted in conspiracy; and (3) in disregarding the recantation made by respondent.

On January 4, 2003, Lubrica likewise filed with this Court a petition for review on certiorari. In our Decision dated February 26, 2007, we denied his petition for being late. Our Decision became final and was recorded in the Book of Entries of Judgments on April 20, 2007.

The sole issue for our resolution is whether the guilt of the accused, now petitioners, in these cases has been proved by evidence beyond reasonable doubt.

The crime of direct bribery as defined in Article 210 of the Revised Penal Code contains the following elements: (1) that the accused is a public officer; (2) that he received directly or through another some gift or present, offer or promise; (3) that such gift, present or promise has been given in consideration of his commission of some crime, or any act not constituting a crime, or to refrain from doing something which is his official duty to do; and (4) that the crime or act relates to the exercise of his functions as a public officer.

The Sandiganbayan found the above elements of direct bribery present. It was duly established that the accused demanded and received P300.00 as protection money from respondent on several dates. As against the prosecutions evidence, all that the accused could proffer was alibi and denial, the weakest of defenses.

Anent Criminal Case No. 20678, to hold a person liable under Section 3(e) of R.A. No. 3019, the concurrence of the following elements must be established beyond reasonable doubt by the prosecution: (1) that the accused is a public officer or a private person charged in conspiracy with the former; (2) that the said public officer commits the prohibited acts during the performance of his or her official duties or in relation to his or her public positions; (3) that he or she causes undue injury to any party, whether the government or a private party; and (4) that the public officer has acted with manifest partiality, evident bad faith or gross inexcusable negligence. The Sandiganbayan found that petitioners and Lubrica participated directly in the

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malicious apprehension and impounding of the taxi unit of respondent, causing him undue injury.

Settled is the rule that findings of fact of the Sandiganbayan in cases before this Court are binding and conclusive in the absence of a showing that they come under the established exceptions, among them: 1) when the conclusion is a finding grounded entirely on speculation, surmises and conjectures; 2) the inference made is manifestly mistaken; 3) there is a grave abuse of discretion; 4) the judgment is based on misapprehension of facts; 5) said findings of facts are conclusions without citation of specific evidence on which they are based; and, 6) the findings of fact of the Sandiganbayan are premised on the absence of evidence on record. We found none of these exceptions in the present cases.

Petitioners prayer for complete acquittal on the strength of respondents affidavit of recantation fails to impress us.

A recantation or an affidavit of desistance is viewed with suspicion and reservation. The Court looks with disfavor upon retractions of testimonies previously given in court. It is settled that an affidavit of desistance made by a witness after conviction of the accused is not reliable, and deserves only scant attention. The rationale for the rule is obvious: affidavits of retraction can easily be secured from witnesses, usually through intimidation or for a monetary consideration. Recanted testimony is exceedingly unreliable. There is always the probability that it will later be repudiated. Only when there exist special circumstances in the case which when coupled with the retraction raise doubts as to the truth of the testimony or statement given, can retractions be considered and upheld. As found by the Sandiganbayan, (t)here is indubitably nothing in the affidavit which creates doubts on the guilt of accused Balderama and Nagal.

WHEREFORE, we DENY the petition. The challenged Decision of the Sandiganbayan dated November 17, 2000 in Criminal Cases Nos. 20669, 20670, 20672, 20674, 20675, 20676, 20677 and 20678 is AFFIRMED in toto.

SO ORDERED.

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A.M. No. P-06-2257 [Formerly OCA IPI No. 01-1212-P] November 29, 2006 SPS. ARTHUR and LEONORA STILGROVE, Complainants, - versus Clerk of Court ERIBERTO R. SABAS and Sheriff III ERNESTO SIMPLICIANO, Respondents. RESOLUTION TINGA, J.: This resolves an administrative complaint against Eriberto Sabas, the since retired Clerk of Court and Ex-Officio Sheriff of the MTC, 4th Judicial Region, Puerto Princesa City, and Ernesto Simpliciano, already deceased, as Deputy Sheriff of the same court. The complaint was filed by the spouses Arthur and Leonora Stilgrove for grave abuse of authority and for conduct unbecoming officers of the court. In their verified Complaint dated 20 July 2001, complainants claim that the respondents are liable in view of the following: a.
b. For having knowingly, voluntarily and feloniously acted beyond the scope of their powers and functions, with manifest partiality, evident bad faith or gross inexcusable negligence, thereby causing undue damage and injury to herein complainants; For having knowingly allowed themselves to be persuaded, induced and influenced by Latube and De los Santos into committing such illegal demolition of complainants structures not included in the aforementioned decision in [C]ivil [C]ase [N]o[.] 1311; For unjustifiably refusing to heed the clearly justified pleas of complainants for them not to include in the demolition said structures[,] as well as to accept the letter and the affidavit of third-party claim that complainants were tendering on them; and Specifically on the part of respondent Sabas, for insulting complainant Arthur Stilgrove by shouting at him to Return to (his) country, for (he) is not welcome here!, and for almost causing him to suffer physical injuries by ordering the demolition men to proceed in chainsawing the fence without minding said complainant even as he already saw that the latter was standing between the saw and the fence in order to prevent the illegal demolition from proceeding.

c.

d.

Another case arising from the same incident was filed by the same complainants with the Ombudsman. OMB-1-01-0668-H was a complaint for violation of Sections 3(a) and (e) and Section 4(b) of Republic Act No. 3019 filed by complainant spouses against respondents Sabas and Simpliciano and Francisca Gacot-Latube and Cresencia de los Santos. The case was dismissed as far as the latter two were concerned for lack of jurisdiction. The antecedent facts of this case are as follows: In 1994, Geronimo Gacot filed a detainer suit (subsequently amended into an action for recovery of possession of a parcel of land) against Joaquin Montero and Emilio Batul with the

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Municipal Trial Court (MTC) of Puerto Princesa City. The case, docketed as Civil Case No. 1311, involved Lot No. 18553, the lot adjacent to the land occupied and possessed by the spouses Stilgrove. During the pendency of Civil Case No. 1311, Lot No. 18553 was sold to Cresencia de los Santos, who was able to secure Transfer Certificate of Title No. 162460 in her name. Eventually, the MTC rendered a decision in favor of Gacot, who had, upon his death, been already substituted by his heirs, represented by Francisca Gacot-Latube. The decision of the MTC in Civil Case No. 1311 was affirmed on appeal by Branch 48 of the Regional Trial Court, Puerto Princesa City, Palawan on 8 January 2001. The dispositive portion of the affirmed MTC decision reads: 1.
Ordering defendants, Emilio Batul, Joaquin Montero as well as all persons claiming rights under them to peaceably vacate the property subject of this litigation within three (3) working days and restore possession thereof to the plaintiff or his representative; Ordering defendants to pay plaintiff jointly and severally the sum of P10,000.00 as attorneys fees; Ordering defendants, Emilio Batul, and all persons claiming rights under him to pay plaintiff as reasonable rental for the use and occupation of plaintiffs property the amount of P100.00, a month from January 1987, until he vacates the property; there being no fixed month in 1986, when he entered the premises; and Ordering Joaquin Montero and all persons claiming rights under him to pay plaintiff the amount of P100.00, a month effective January 1994, for the same reason as above, until they too, vacate the premises; To pay the costs.

2. 3.

4.

5.

A writ of execution was subsequently issued and served on the defendants in Civil Case No. 1311. Instead of complying with the order for them to vacate the premises subject of the litigation within three (3) working days, the defendants remained on the land and even built new structures on Lot No. 18553. Thus, Judge Heriberto M. Pangilinan issued a Special Order for Demolition on 30 April 2001, which commanded the Ex-Officio Sheriff and/or Deputy Sheriff:
x x x to cause the demolition of all structures including fences built or erected by defendants or any other persons claiming rights under such defendants within the premises forming part of plaintiffs property. The demolition shall immediately be carried out after giving them a reasonable period of up to [ten] 10 days from receipt of this Order to voluntarily demolish any structure they built within the premises.

On 18 May 2001, respondents Sabas, being then the Clerk of Court and Ex-Officio Sheriff of the MTC, and Simpliciano, then the Deputy Sheriff of the same court, with a demolition team, proceeded to execute the demolition order. The demolition team proceeded to demolish the houses of defendants Joaquin Montero and Emilio Batul. Upon being asked by Arthur Stilgrove, respondent Sabas confirmed that the demolition will include a portion of Lot No. 18556 which was then occupied and possessed by the former. Arthur Stilgrove thereafter demanded that the demolition team desist from carrying out the demolition. Notwithstanding Stilgroves protestations, the demolition continued to include a fence and a portion of Stilgroves house which was built on Lot No. 18556. Thereafter, on 21 May 2001, respondent Sabas executed a Return of Service. The two respondents demolition of the fence and one-half of the house of the complainant spouses as well as respondent Sabass shouting at complainant Arthur Stilgrove the words: Return to (his) country, for (he) is not welcome here!, prompted the complainants to file this administrative case against respondents. As mentioned at the outset, another complaint was filed with the Office of the Ombudsman and docketed as OMB-1-01-0668-H (for

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violation of Sections 3(a) and (e) and Section 4(b) of Republic Act No. 3019), entitled Arthur Stilgrove, et. al v. Eriberto Sabas, et. al. In their Joint Comment dated 10 September 2001, respondents prayed for the dismissal of the complaint and raised the defense that they demolished the fence and one-half of the house of the complainants by virtue of the Special Order for Demolition issued by Judge Heriberto M. Pangilinan in Civil Case No. 1311. Respondents alleged that the markers that were placed along the boundary line of Lot No. 18553 were placed at the surveyors own initiative based on a relocation survey conducted by a licensed geodetic engineer. Respondents also maintained that the Stilgroves were mere trespassers or squatters with respect to a 10-meter wide encroachment made on Lot No. 18553 by Lot No. 18556 as determined by the same relocation survey, and as such were bound by the judgment in Civil Case No. 1311. Respondents further claimed, citing a Sinumpaang Salaysay allegedly executed by Joaquin and Esther Montero, that complainant spouses were claiming rights under one of the defendants in Civil Case No. 1311, Emilio Batul, who sold a portion of Lot No. 18553 to them during the pendency of Civil Case No. 1311. According to respondents, complainants cannot claim any right better than their seller who was a defendant in Civil Case No. 1311 and they are bound by the demolition order. Respondents further averred that they were the ones who were subjected to verbal abuse by complainant Arthur Stilgrove. In fact, according to respondents, a criminal complaint for grave slander was filed by the former against the latter and his spouse. On 13 August 2001, the Office of the Deputy Ombudsman referred the records of OMB1-01-0668-H to the Office of the Court Administrator pursuant to Section 6, Article VIII of the 1987 Constitution. In their Reply, complainants countered that respondents reliance on the relocation survey conducted by a licensed engineer allegedly for Cresencia de los Santos is untenable since such survey was never presented to the Court and was thus, never part of the records of Civil Case No. 1311. More tellingly, the survey plan was prepared only on 26 June 2001 after the RTC and MTC decisions and after the demolition had been carried out. Accordingly, it could not have been taken cognizance of by the Courts at the time Civil Case Nos. 1311 and 3470 were heard. The relocation survey was not even approved by the Land Registration Authority. Complainants also argued that Article 433 of the New Civil Code which requires resort to judicial process for the recovery of property was not observed when respondents considered valid the alleged claim of encroachment. Likewise, respondents refusal to accept complainants affidavit of third-party claim violated Section 16 of Rule 39 of the Rules of Court. Complainants also alleged that Joaquin Montero never appeared before the notary public to sign the Sinumpaang Salaysay dated 23 May 2001 and that the signature of Esther Montero in said affidavit was procured because respondents took advantage of her lack of education. On 25 November 2002, upon the recommendation of the Office of the Court Administrator, the Court referred this administrative matter to the Executive Judge of the Regional Trial Court of Puerto Princesa City for investigation, report and recommendation within sixty (60) days from receipt of the record. On 10 February 2003, Executive Judge Nelia Yap-Fernandez informed the Court that respondent Clerk of Court IV Sabas had already retired from the service on 17 September 2001, and that her office had already taken judicial notice of the death of the other respondent Simpliciano in connection with another administrative matter. This Court referred her letter to the Office of the Court Administrator for evaluation, report and recommendation within five (5) days from receipt of the records. Upon recommendation by Deputy Court Administrator Jose P. Perez in his Memorandum dated 1

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October 2003, the Court referred the case back to the Executive Judge of the Regional Trial Court of Puerto Princesa City, Palawan for investigation, report and recommendation within sixty (60) days from receipt of the record. After hearing the testimonies of the witnesses and reception of documentary evidence for both parties, Investigating Judge Nelia Yap-Fernandez dismissed the administrative case against respondent Simpliciano for lack of merit but found respondent Sabas guilty of grave misconduct, abuse of authority and conduct unbecoming of a court personnel. The Report and Recommendation of the investigating judge states:

WHEREFORE, this investigating officer respectfully recommends to the Honorable Supreme Court thru the Honorable Court Administrator the forfeiture of respondent Eriberto Sabas retirement benefits and all other benefits withheld from him pending the resolution of this case, except accrued sick leave and vacation leave credits and the dismissal of the case against deputy sheriff Ernesto Simpliciano for lack of merit.

It is worthy to note that the Investigating Judge in her Report and Recommendation, like the Office of the Court Administrator before, did not touch the complaint for violation of Sections 3(a), 3(e) and 4(b) of the Anti-Graft and Corrupt Practices Act. Accordingly, we refer the matter to the Executive Judge of the Regional Trial Court of Puerto Princesa City for investigation, report and recommendation on respondents administrative liability. Now, we turn again to the charge of grave abuse of authority and conduct unbecoming an officer of the court. We agree with the findings of the Investigating Judge with respect to both. The administrative case with respect to respondent Simpliciano must be dismissed. The testimonies of his co-respondent Sabas and complainant Arthur Stilgrove show that, aside from his mere presence at the time of the demolition, respondent Simpliciano did not participate in the actual demolition of complainants fence and house. It is a basic rule in evidence that each party must prove his affirmative allegation. Since the burden of evidence lies with the party who asserts the affirmative allegation, complainant spouses have to prove the material allegations in their complaint. As far as Simplicianos administrative liability was concerned, complainant spouses failed to discharge this evidentiary burden by establishing any culpable acts which the Deputy Sheriff performed, other than his mere presence when the demolition occurred. However, a different result must obtain as to the administrative liability of respondent Sabas. Respondent Sabas is charged with grave abuse of authority when he caused the demolition of a fence and a portion of complainant spouses house which structures were all built on Lot No. 18556, the lot adjacent to Lot No. 18553, and for conduct unbecoming an officer of the court when he shouted at complainant Arthur Stilgrove the words: Return to (his) country, for (he) is not welcome here! Grave abuse of authority (oppression) is a misdemeanor committed by a public officer, who under color of his office, wrongfully inflict upon any person any bodily harm, imprisonment or other injury. It is an act of cruelty, severity, or excessive use of authority. In this case, respondent attempted to justify the demolition of the fence and a portion of complainant spouses house by saying that he was merely implementing a lawful order of the Court. Indeed, the scope of respondent Sabas power as Sheriff was limited by the decision of

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the MTC in Civil Case No. 1311, which decision was affirmed in toto by the RTC, and the Special Order for Demolition issued by Judge Heriberto M. Pangilinan. The two documents could not be any clearer. The MTC decision was directed to the defendants as well as all persons claiming rights under them x x x while the Special Order of Demolition ordered the Ex-Officio Sheriff and/or Deputy Sheriff to cause the demolition of all structures including fences built or erected by defendants or any other persons claiming rights under such defendants within the premises forming part of plaintiffs property. The spouses Stilgrove were not the defendants in Civil Case No. 1311 nor were they persons claiming rights under such defendants. They were merely the occupants and possessors of the lot adjacent to the lot for which the demolition order was issued. A judgment directing a party to deliver possession of a property to another is in personam. It is conclusive, not against the whole world, but only between the parties and their successors in interest by title subsequent to the commencement of the action. An action to recover a parcel of land is a real action but it is an action in personam, for it binds a particular individual only although it concerns the right to a tangible thing. Any judgment therein is binding only upon the parties properly impleaded and duly heard or given an opportunity to be heard. However, this rule admits of the exception, such that even a non-party may be bound by the judgment in an ejectment suit where he is any of the following: (a) trespasser, squatter or agent of the defendant fraudulently occupying the property to frustrate the judgment; (b) guest or occupant of the premises with the permission of the defendant; (c) transferee pendente lite; (d) sublessee; (e) co-lessee; or (f) member of the family, relative or privy of the defendant. There is no evidence to show that the spouses Stilgrove are included in the exceptions to the general rule above. Therefore, they are not bound by the judgment in Civil Case No. 1311. Respondent Sabas considered the spouses Stilgrove as trespassers or squatters after he concluded that, based on the relocation survey conducted by the licensed geodetic engineer commissioned by Cresencia De los Santos, Lot No. 18556 encroached on Lot No. 18553. Yet, this argument is tenuous. The relocation survey relied upon by respondent Sabas is not extant in the records of Civil Case No. 1311 nor in the records of Civil Case No. 3470. In fact, the survey plan was prepared only on 26 June 2001, that is, after the demolition had already taken place. The lower courts could not have taken cognizance of the same in the issuance of the decision and the Special Order of Demolition. Respondent Sabas further claimed that the Stilgrove spouses derived their title from defendant Emilio Batul by virtue of a Sinumpaang Salaysay allegedly executed by Esther and Joaquin Montero to that effect. However, there is doubt as to the genuineness and due execution of the Sinumpaang Salaysay for in another affidavit executed by Joaquin Montero, he denied having appeared before a notary public to sign such a document. The claim that respondent took advantage of Esther Monteros little education cannot be dismissed lightly. Also, the Sinumpaang Salaysay was executed on 23 May 2001, after the demolition had been done. Even if no taint attaches to the due execution of the Sinumpaang Salaysay, it is definitely hearsay, for failure of the alleged affiants therein to testify on the contents thereof. Respondent Sabas harps on the fact that the spouses Stilgrove do not own Lot No. 18556 based on Original Certificate of Title No. 3870 issued in the name of the Heirs of Geronimo Gacot. However, such determination occurred after the demolition. In fact, at the time of the demolition, there was a pending case between the Heirs of Gacot and the Stilgrove spouses over Lot No. 18556. At that time, the spouses Stilgrove, who were the possessors and occupants of the lot, were still presumed to be the owners thereof. This presumption derives from Article 433 of the New Civil Code, which states:

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Actual possession under claim of ownership raises a disputable presumption of ownership. The true owner must resort to judicial process for the recovery of the property.

Under Article 433, the true owner has to resort to judicial process to recover his property, only if the possessor does not want to surrender the property to him, after proper request or demand has been made. Judicial process must then be had to prevent disturbances of the peace. In this case not only did respondent Sabas act with undue haste in concluding that the Gacots owned Lot No. 18556 but he also exercised discretion that properly pertains to courts of justice. It has been said that the sheriffs duty to execute a judgment is ministerial. A purely ministerial act is one which an officer or tribunal performs in a given state of facts, in a prescribed manner, in obedience to the mandate of the legal authority, without regard to the exercise of his own judgment upon the propriety of the act done. Otherwise stated, a sheriff need not look outside the plain meaning of the writ. Any exercise of discretion may be used only when a sheriff is faced with an ambiguous execution order, in which case prudence and reasonableness dictate that he seek clarification from the judge. In this case, there is no ambiguity in the words of the Decision sought to be executed as well as the Special Order of Demolition. The words were clear by themselves. The decision applied only to defendants x x x as well as all persons claiming rights under them x x x while the Special Order of Demolition ordered the demolition of structures built or erected by defendants or any other persons claiming rights under such defendants within the premises forming part of plaintiffs property. Even assuming that there was an ambiguity in the wordings of the Decision sought to be implemented and the Special Order for Demolition, respondent Sabas still should have sought judicial clarification on the matter. He should not have proceeded to unilaterally include complainant spouses properties in the demolition. In the proper exercise of prudence and limited discretion, it is worth emphasizing this Courts ruling in Sta. Ana v. Sunga, directing the proper action of sheriffs and the courts in these matters:
x x x There may be cases when the actual possessor may be claimed to be a privy to any of the parties to the action, or his bona-fide possession may be disputed, or where it is alleged, as in the instant case, that such possession has been taken in connivance with the defeated litigant with a view to frustrating the judgment. In any of these events, the proper procedure would be to order a hearing on the matter of such possession and to deny or accede to the enforcement of a writ of possession as the finding shall warrant. But in the absence of any such hearing or any proceeding of a similar character, every person in the actual possession of the land has a right to be respected therein (Art. 446, Civil Code) and his ejectment would constitute a deprivation of a property right without due process of law.

At this point, we must decry respondent Sabas propensity to exercise judicial discretion when he is not privileged to do. On his own, he ruled and agreed with the results of the relocation survey that there was an encroachment by Lot No. 18556 on Lot No. 18553. He concluded that complainant spouses derived their title from one of the defendants and were therefore privy to the decision in Civil Case No. 1311. He concluded that since the Gacots were the true owners of Lot No. 18556, complainant spouses were mere trespassers who were bound by the decision in Civil Case No. 1311. Finally, based on these conclusions, he included complainant spouses fence and a portion of their house in the execution of the Special Order of Demolition. His actions, which were beyond the scope of his authority, deprived complainant spouses of their property without due process of law. They make him liable for grave abuse of

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authority. Good faith on the part of the respondent, or lack of it, in proceeding to properly execute his mandate would be of no moment, for he is chargeable with the knowledge that being an officer of the court tasked therefore, it behooves him to make due compliance. Any method of execution falling short of the requirement of the law deserves reproach and should not be countenanced.
It is well to remind Sheriffs and Deputy Sheriffs that they are officers of the court, and considered agents of the law. They form an integral part of the administration of justice because they are called upon to serve court writs, execute all processes, and carry into effect the orders of the Court, as such, they should discharge their duties with due care and utmost diligence. The expeditious and efficient execution of court orders and writs should not be at the expense of due process and fair play.

Writs of Execution should always be served and enforced with prudence and caution, taking into consideration all relevant circumstances. All sheriffs should bear in mind the injunction in Pealosa v. Viscaya, Jr. that:
Public Officers, as recipients of a public trust, are under obligation to perform the duties of their offices honestly, faithfully and to the best of their ability. As trustees for the public, they should demonstrate courtesy and civility in their official actuations with the public. Every public officer is bound to use reasonable skill and diligence in the performance of his official duties, particularly where rights of individuals may be jeopardized by his neglect. In sum, he is bound virtute offici, to bring to the discharge of his duties that prudence, caution and attention which careful men usually exercise in the management of their own affairs.

Respondent Sabas further failed to demonstrate courtesy and civility in the discharge of his functions when he shouted at complainant Arthur Stilgrove the words, Return to (his) country, for (he) is not welcome here! Discourtesy and disrespect have no place in the judiciary. It is conduct unbecoming a court employee. An officer of the court such as respondent Sabas is charged with the duty to observe courtesy and civility in his official actuations with the public. As a public officer, it is his obligation to act with courtesy, selfrestraint and civility at all times when dealing with the public even when he is confronted with rudeness and insolence. Time and again we have held that this Court condemns and would never countenance any conduct, act or commission on the part of all those involved in the administration of justice, which would violate the norm of public accountability and diminish or even just tend to diminish the faith of the people in the judiciary. All those involved in the administration of justice have the obligation to perform the duties of their office honestly, faithfully and to the best of their ability. In Equitable PCI Bank, Inc. v. Bellones, we held:
Sheriffs play an important role in the administration of justice and they should always hold inviolate and invigorate the tenet that a public office is a public trust. Being in the grassroots of our judicial machinery, sheriffs and deputy sheriffs are in close contact with the litigants; hence, their conduct should all the more maintain the prestige and the integrity of the court. By the very nature of their functions, sheriffs must conduct themselves with propriety and decorum, so as to be above suspicion. Sheriffs cannot afford to err in serving court writs and processes and in implementing court orders lest they undermine the integrity of their office and the efficient administration of justice.

Grave abuse of authority (oppression) is a grave offense punishable with suspension for six (6) months and one (1) day to one (1) year, for the first offense while the discourtesy committed by respondent Sabas in the course of his official duties is a light offense punishable by reprimand. However, in view of respondent Sabas retirement on 17 September 2001, the penalties of suspension and reprimand would not longer be applicable. Thus, the Court resolves instead to impose a fine equivalent to his salary for six (6) months, deductible from his retirement pay.

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Further, since respondent Sabas is not entitled to any leave credit during the period of suspension, which is six (6) months, an amount corresponding to such leave credits shall be deducted from his retirement benefits. WHEREFORE, premises considered, respondent Eriberto Sabas, former Clerk of Court and Ex-Officio Sheriff of the Municipal Trial Court of Puerto Princesa City, Palawan, is found GUILTY of Grave Abuse of Authority and Conduct Unbecoming of a Court Personnel, and accordingly FINED in an amount equivalent to his salary for six (6) months plus six (6) months leave credits, deductible from his retirement pay. The charges of grave abuse of authority and conduct unbecoming a court officer against Ernesto Simpliciano, former Deputy Sheriff of the Municipal Trial Court of Puerto Princesa City, Palawan, is hereby DISMISSED for lack of merit. The charge of violation of Sections 3(a), 3(e) and 4(b) of Republic Act No. 3019 against Eriberto Sabas and Ernesto Simpliciano is REFERRED to the Executive Judge of the Regional Trial Court of Puerto Princesa City for investigation, report and recommendation on respondents administrative liability within sixty (60) days from receipt of the record.

SO ORDERED.

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G.R. No. 147723 August 22, 2008 PRESIDENTIAL AD HOC FACT- FINDING COMMITTEE ON BEHEST LOANS AND/OR PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT (PCGG), Petitioners - versus HON. ANIANO DESIERTO, ALICIA LL. REYES, LOURDES M. MONTENEGRO, SERAFIN M. MONTENEGRO, BASILIO LIRAG and FELIX LIRAG, Respondents. DECISION TINGA, J.: Respondents Lourdes M. Montenegro, Serafin M. Montenegro, Basilio Lirag and Felix Lirag were all officers or stockholders of Midland Cement Corporation (Midland Cement), a corporation which was registered with the Securities and Exchange Commission on 14 June 1963. On 18 January 1968, Midland Cement obtained a foreign guarantee loan from the Development Bank of the Philippines (DBP) in the amount of USD 18.5M, or an equivalent of P110M. The loan was secured to finance the acquisition of a brand new cement plant to be supplied and installed by French contractor Fives Lille-Cail on a turn-key basis. The loan was approved by DBP in Board Resolution No. 539. At the time the loan was secured in 1968, Basilio and Felix Lirag, as well as Serafin Montenegro, were among the directors or officers of Midland Cement. Between 1971 and 1982, Midland Cement and DBP entered into ten successive agreements for the obtention of additional loans and/or for restructuring of accounts. In 1972, DBP became the majority stockholder of Midland Cement, and by 1981, it was already the owner of 92.89% of the shares in the corporation. In 1986, the properties of Midland Cement were sold by the Assets Privatization Trust (APT) for P171,825,000.00, even though the outstanding balance of the corporation at that point was over a billion pesos. On 8 October 1992, then President Fidel Ramos created the Ad Hoc Fact-finding Committee on Behest Loans (Ad Hoc Committee), petitioner herein, through Administrative Order No. 13, and broadened the scope of its powers through Memorandum Order No. 61 dated 9 November 1992. Among the functions tasked by the said memorandum order to the Ad Hoc Committee is the investigation, inventory and study of all non-performing loans, including both behest and non-behest loans. It also established an eight (8)-point criterion for possible utilization as a frame of reference in determining a behest loan, namely: (a) it is undercollateralized; (b) the borrower corporation is under-capitalized; (c) direct or indirect endorsement by high government officials like the presence of marginal notes; (d) stockholders, officers or agents of the borrower corporation are identified as cronies; (e) deviation of use of loan proceeds from the purpose intended; (f) use of corporate layering; (g) non-feasibility of the project for which financing is being sought; and (h) extraordinary speed in which the loan release was made. It also stipulated that behest loans may likewise entail criminal liability in addition to civil liability. On 25 February 1998, the Ad Hoc Committee referred to then Ombudsman Aniano Desierto (Ombudsman Desierto) the accounts of Midland Cement, along with those of two

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other corporations, for preliminary investigation to determine the existence of probable cause of violation of R.A. No. 3019, banking laws/regulations and/or other penal statutes. The referral letter was accompanied by the Complaint-affidavit executed by Atty. Orlando L. Salvador (Atty. Salvador), a Presidential Commission on Good Government (PCGG) consultant detailed at the Ad Hoc Committee. The complaint was docketed as OMB-0-98-0563. Atty. Salvador averred that at the time the initial loan of P110M was procured from DBP in 1968, Midland Cement had no sufficient capital to be entitled to that large a loan since its total assets then amounted to only P77M and its paid-up capital amounted to only around P9.15M. Allegedly, the loan itself was without sufficient collateral. Atty. Salvador observed that despite these facts, Midland Cement was able to obtain additional loans from DBP until 1981. According to Atty. Salvador, as of 30 June 1986, Midland Cement had an outstanding and unpaid balance of P1,027,376,000.00 with a property appraised value of P329,479,000.00. As the properties of Midland Cement were sold by the APT sometime in 1987 for only P171,825,000.00, the Philippine government incurred a loss amounting to P855,551,000.00. He further recounted that the cement plant that was constructed following the loan was leased to the Construction and Development Corporation of the Philippines for a minimal consideration of P2.00/40-kilogram bag of cement produced, and that Midland Cement committed misrepresentation when unknown to DBP, it entered with Fives Lille-Cail into a side agreement whereby Midland Cement bound itself to sub-contract the civil works on the plant with a local contractor even though DBP had already guaranteed the supply/construction of the plant on a turn-key basis. From these premises, Atty. Salvador asseverated that the loans extended to Midland Cement were behest loans based on the following criteria: 1. It is under collateralized. That at the time the P110.00 million loan was granted, total assets including to be acquired amounted to P77,000,000 only; The borrower corporation is under capitalized. That as of December 31, 1967 the paid-up capital amounted to P9,158,180.00 only; The borrower corporation grossly violated the loan agreement by entering a side agreement unknown to DBP; The stockholders and/or officers are known cronies of Ex-Pres. F.E. Marcos.

2.

3.

4.

Atty. Salvador further concluded that the transactions had been entered into in violation of Republic Act (R.A.) No. 3019 (The Anti-graft and Corrupt Practices Act), particularly Section 3(e) and (g) thereof: Sec. 3. Corrupt Practice of Public Officers.In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful. x x x x e. Causing any undue injury to any party, including the Government or giving any private party any unwarranted benefit, advantage or

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preference in the discharge of his official, administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions. x x x x g. Entering on behalf of the Government, into any contract or transaction manifestly and grossly disadvantageous to the same, whether or not the public officer profited or will profit thereby.

Atty. Salvador identified eight (8) persons who could be made liable for violation of the loan terms and conditions. Four of themG.S. Licaros, J.V. de Ocampo, Leonides Virata and respondent Alicia Ll. Reyes (Reyes)were members of the DBP Board of Governors. The other fourrespondents Lourdes M. Montenegro, Serafin M. Montenegro, Basilio Lirag and Felix Lirag were officers and principal stockholders of Midland Cement. In its 25 August 1998 Resolution, the Evaluation and Preliminary Investigation Bureau (EPIB) of the Office of the Ombudsman concluded that the loans extended to Midland Cement could not be considered behest loans as the proceeds thereof were used for a business purposethe construction of the cement plantand that there was no deviation of use of the said proceeds from the intended purpose. The EPIB also observed that based on the allegations in the complaint, the government did not bear the burden of satisfying the loan obligation of Midland Cement; that there was no unwarranted benefit or preference accorded to the respondents since the loan was collateralized; and that the process of loan evaluation and investigation had been rigorously followed before the application was finally approved. The EPIB Resolution was elevated for review to the Office of the Special Prosecutor of the Office of the Ombudsman. On 5 October 1998, Special Prosecution Officer III Orlando I. Ines issued a Memorandum for Ombudsman Desierto containing his assessment of the complaint. The memorandum recounted the allegations of Atty. Salvador in the latters sworn statement, and determined: [T]here is no doubt that the loans of Midland Cement Corporation are behest loan[s] based on the following criteria, as follows: 1. It is under collateralized. That at the time the P110.00 million loan was granted, total assets including those to be acquired amounted only to P77M; The borrower corporation is [under capitalized]. As of December 31, 1967 the [paid-up] capital amounted only to P9.758M; The borrower corporation grossly violated the loan agreement by entering a side agreement unknown to DBP; The stockholders and/or officers are known cronies of ExPres. F.E. Marcos.

2.

3. 4.

It appearing from the foregoing facts and circumstances on record, it is beyond doubt that the respondents violated Sec. 3(e) and (g) of [R.A. No.] 3019.

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But could the State still prosecute the offense considering the illegal acts were committed way back 1968 up to 1982 or more than fifteen (15) years ago? The complaint was only filed in 1998. All offenses punishable under the Anti-Graft and Corrupt Practices Act shall prescribe in FIFTEEN (15) years. In the case under review, there is no doubt that the offenses have been committed longer than fifteen (15) years, the earliest began in 1967 and the latest in 1982 x x x By prescription of the crime, it means the forfeiture or loss of the right of the State to prosecute the offender after the lapse of a certain period. Moreover, except for Ms. Alice Reyes, all the other respondent [sic] DBP officials, namely [sic] Gregorio Licaros, J.V. de Ocampo, and Leonides Virata, are already dead. Reliable reports though not yet confirmed indicate that many of the private respondents are now dead. In view of the foregoing circumstances, the undersigned recommends the dismissal of the instant case. The recommendation for the dismissal of the complaint on the basis of prescription was approved by Ombudsman Desierto on 29 January 1999. On 11 July 2000, the Ad Hoc Committee, represented by Atty. Salvador, filed before the EPIB a Motion to Revive/Reinstate the instant criminal complaint, citing the 25 October 1999 Decision of this Court in Presidential Ad Hoc Fact-finding Committee v. Hon. Desierto where, according to the Ad Hoc Committee, it was held that it should be given the fair chance to prove that prescription has not barred the filing of charges against the respondents. It appears that the EPIB issued an order requiring the public and private respondents to file their counter-affidavits on 4 September 2000. Only Reyes among the respondents filed a Counter-affidavit, wherein she stated that she was a member of the DBP Board of Governors only from 1980 until 1986, or thus long after the loan was first extended to Midland Cement in January 1968. She nevertheless asserted that the DBP guarantee was secured by: (a) a first mortgage on all the assets of Midland Cement worth at least P77M; (b) an assignment to the DBP of Midland Cements mining claims and quarry rights; (c) the pledge to the DBP of common shares of Midland Cements stockholders worth at least P9M; (d) the assignment of subscription receivables worth P10M; and (e) the joint and several signatures with Midland Cement of its stockholders. Thus, claimed Reyes, DBP was sufficiently protected when it approved the guarantee in favor of Midland Cement. Reyes likewise averred that DBP had taken over Midland Cement in 1972, that it had became the owner of 92.89% of the corporations shares in 1981, and that the succeeding loan transactions after the takeover had been in fact approved by DBP as the owner of Midland Cement and consummated in order to protect the interests of both entities. She further stated that nothing in the transactions adverted to in the complaint manifested that she herself had committed any of the acts sanctioned under Section 3(e) and (g) of R.A. No. 3019. On 25 October 2000, the EPIB promulgated the now-assailed Resolution recommending the dismissal of the complaint for insufficiency of evidence. Ombudsman Desierto approved the recommendation on 24 November 2000. Petitioners filed a motion for reconsideration with the EPIB, but this was denied for lack of merit in a Resolution dated 6 February 2001, which was also subsequently approved by Ombudsman Desierto on 16 February 2001. Hence, the present petition.

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Petitioners point out that in the 1998 Resolution, the Ombudsman categorically asserted that it is beyond doubt that respondents violated Section 3(e) and (g) of *R.A. No.+ 3019, even as the complaint was dismissed on the ground of prescription, yet in the 2000 Resolution, completely deviated, ignored and disregarded his previous resolution when he ruled that the evidence was insufficient to prosecute respondents. Such volta face, petitioners claim, constitutes not only grave but palpable gross and excessive abuse of discretion on the part of the Ombudsman. Petitioners adduce as compelling reason to prosecute respondents the fact that as of 30 June 1986, Midland Cement had an outstanding and unpaid balance of over P1B, with a property appraisal value of only around P329M. This Court directed respondents to file their respective comments but the resolution containing the said directive could not be served on respondents Basilio Lirag, Felix Lirag, Lourdes Montenegro and Serafin Montenegro despite repeated and diligent efforts on the part of the PCGG to ascertain their present addresses. Thus, only the Office of the Ombudsman and Reyes were able to file their respective comments. In its Comment, the Office of the Ombudsman adverts to the rule that it is beyond the ambit of [the] Court to review the exercise of discretion of the Ombudsman in prosecuting or dismissing a complaint before it. It defends its finding that the loans were not behest in nature and character, citing its findings in the assailed resolution that the initial loan had been sufficiently collateralized and that the subsequent loans were approved by DBP in its new capacity as the owner of Midland Cement, to protect the interests of the two corporations. It points out that after DBP had taken over Midland Cement, there resulted a merger or confusion of rights whereby the financial institution assumed not only the management but also the obligations of Midland Cement; accordingly, the subsequent loans were not really in the nature or character of loans, much less behest loans, but transactions necessary to infuse fresh capital into the newly acquired Midland Cement already being managed by DBP. Reyes, for her part, defends these findings of the Ombudsman and reiterates her claim that she had joined DBP long after the initial loan was procured and also after the bank had taken over Midland Cement. Additionally, she argues that prescription has already barred the prosecution of the imputed offenses. Our jurisprudence governing the prosecution of behest loan cases reveals two entrenched principles: first, that the prescription of the crime for violation of R.A. No. 3019 is reckoned from not from the time of the commission of the offense but from the time of the discovery of the commission and second, that the Ombudsman has discretion to determine whether a criminal case, given its facts and circumstances, should be filed or not, with the Court adopting a policy of non-interference in the Ombudsmans exercise of his investigating and prosecutory powers absent good and compelling reasons. That first principle is beyond contention in this case, even as Reyes offers a minimal effort to assert that the offense has already prescribed. She concedes that prescription is reckoned from the time of the discovery of the offense, but argues that there was clear and indubitable proof that discovery of the alleged behest loans was made, at the latest, on February 27, 1987, when the Republic and the [DBP] entered into a Deed of Transfer whereby DBP ceded to the Government its assets, including Midland Cement. Thus, she believes that the ten (10)-year prescriptive period should run from the date of execution of the deed of transfer and that accordingly, the period expired more than a year before the filing of the charges on 11 March 1998. Considering that Midland Cement was merely one of the 283 non-performing accounts transferred by DBP to the Republic through the 1987 Deed of Transfer, it is difficult to elicit that

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the execution of the said deed ipso facto bears the imputed anomalous history of transactions between the bank and the corporation. Given the facts, the more reasonable conclusion as to when the offense was discovered would be anywhere within the period following the constitution of the Ad Hoc Committee on 8 October 1992 through Administrative Order No. 13. After all, it is this committee that engaged itself in the thorough examination on which the charges are based. Absent any more definitive proof that the alleged anomalous transactions have been uncovered at an earlier date, there is no basis for us to conclude that the discovery was made prior to 8 October 1992. Nonetheless, the question of prescription is ultimately immaterial to the case at bar. The Ombudsman has concluded that the filing of the criminal charges was not warranted, and following the second principle that governs the behest loan cases, we are wont to uphold the Ombudsmans conclusions. Respondents are charged with violation of Section 3(e) and (g) of R.A. Act No. 3019. Under Section 3(e), the elements of the offense are: (1) that the accused are public officers or private persons charged in conspiracy with them; (2) that said public officers commit the prohibited acts during the performance of their official duties or in relation to their public positions; (3) that they cause undue injury to any party, whether the Government or a private party; (4) that such injury is caused by giving unwarranted benefits, advantage or preference to such parties; and (5) that the public officers have acted with manifest partiality, evident bad faith or gross inexcusable negligence. To determine the culpability of an accused in relation, in turn, to Section 3(g) of the law, it needs to be established (1) that the accused is a public officer; (2) that he entered into a contract or transaction on behalf of the government; and (3) that such contract or transaction is grossly and manifestly disadvantageous to the government. There are two clear phases that demarcate the challenged acts, the demarcation line pertaining to the legal relationship that evolved between DBP and Midland Cement. The first phase encompasses the obtention and approval of the loan by respondents, excepting Reyes who joined DBP only twelve (12) years after the loan was extended. This phase covered the period prior to DBPs takeover of Midland Cement, when the two entities possessed clearly segregate identities and interests. The second phase began when DBP assumed ownership over Midland Cement, thereby incorporating the latters assets and obligations into its own. At that point, DBPs interest in Midland Cement was no longer confined to seeing to it that the latter repay its loan obligations, but rather, such interest has expanded to making it a profitable venture. Using the earlier stated criteria for violations of Section 3(e) and (g) of R.A. No. 3019, it is apparent that in theory there can be liability for violating both sections with respect to the pre-takeover transactions, but there can be liability only for violating Section 3(g) insofar as the post-takeover transactions are concerned. A material element of Section 3(e) violation is that the injury is caused by giving unwarranted benefits, advantage or preference to the private parties who conspired with the public officers. Such element could no longer exist after DBPs takeover of Midland Cement. The takeover eliminated the prospect of benefits, advantages or preferences to the stockholders in their private capacity since they had been already shunted aside in the management of the corporation they previously controlled. Nonetheless, under Section 3(g) the supply of benefits, advantages or preferences to private parties is not apposite, the core element being the engagement in a transaction or contract that is grossly and manifestly disadvantageous to the government. The transactions or contracts entered into by the DBP Board of Governors after the takeover may, in theory, form the basis of liability of the board, yet the standard for initiating criminal prosecutions in this jurisdiction is not confined to the theoretical plausibility that the accused committed the crime alleged. There must exist prima facie evidence that the accused is

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guilty of the crime with which he is charged. A prima facie case is one which is supported by sufficient evidence and will support a finding of guilt in the absence of controverting evidence. Our analysis of the level of prima facie evidence with respect to the behest loan cases is strongly guided by the recent wealth of cases that have charted the necessary standard to pursue prosecution. To repeat, the Ombudsman has discretion to determine whether a criminal case, given its facts and circumstances, should be filed or not, with the Court adopting a policy of non-interference in the Ombudsmans exercise of his investigating and prosecutory powers absent good and compelling reasons. In short, the Court would be ill-advised to institute a finding of prima facie evidence if the Ombudsman concludes that none exists. The 2000 Resolution provides a detailed explanation behind the Ombudsmans determination that the evidence was wanting to sustain the prosecution of respondents, to wit: After careful review of the records of the instant case, the undersigned finds the factual allegations in the sworn statement of Orlando Salvador and its supporting documents wanting of sufficient evidence to establish probable cause to indict the respondents for violation of Section 3(e) and (g) of R.A.[No.] 3019, as amended. Complaint endorsed the loan account of borrower-firm Midland Cement Corporation (MCC) primarily because it is under-collateralized and undercapitalized. As to the issue of collateral, the initial foreign guarantee loan in the amount of $18.5 million or an equivalent of P110.00 million was sufficiently secured as shown in the Board Resolution approving the said loan. It is stated there in no uncertain terms that the said DBP guarantee loan would be secured by the following: (a) a first mortgage on all the assets of MCC worth at least P77,000,000.00; (b) an assignment to the DBP of MCCs mining claims and quarry rights; (c) by pledge to the DBP of common shares of MCCs stockholders worth at least P9 million; (d) by assignment of subscription receivables worth P10 million; and (e) by the joint and several signatures put up by the borrower corporation, we reached the conclusion that these are more than enough to ensure for the amount of the foreign guarantee loan applied for, hence, it cannot be said that it is under-collateralized. It can not also be said that the borrower-corporation is under-capitalized at the time the foreign guarantee loan was approved on January 18, 1968. It is true that the paid-up capital of MCC as of December 31, 1968 amounted only to P9,158,180.00. However, the assets of the borrower corporation at the time was already worth P77,000,000.00, hence the gap between the foreign guaranteed loan in the amount of P110,000,000.00 and the amount of the capital of the borrower-corporation at the time is not that substantial so as to qualify said loan to be undercapitalized. The additional loan obtained by MCC from DBP to restructure its loan accounts for the period covering 1972 up to August 25, 1981 were also alleged to be without sufficient collaterals and adequate capital. It is worth to note that as early as 1972, DBP already took over MCC. As a result of which DBP became its major stockholder. In fact, by 1981, DBPs ownership over MCC was already 92.89%. Thus, the so called additional loans obtained by MCC in order to restructure its loan accounts were in fact transactions approved by DBP not in its capacity as a lending institution but as owner of MCC to protect both the interest of DBP and MCC. In other words, these additional loans are no longer loans in its strictest sense, so there are no more behest loans to talk about in this case.

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From the foregoing, it is established that the MCC project which was financed by the foreign guaranteed loan was established to be a viable project, adequately secured and capitalized in accordance with DBPs lending guidelines thereby negating any violations of Section 3(e) and (g) or R.A. [No.] 3019, as amended. In a number of cases also involving behest loans as alleged by the very same petitioners, this Court has upheld the Ombudsmans determination that the loans questioned therein were not, in fact, undercollateralized, based upon an examination of the various securities that had been offered to secure the respective loans. To take one example, in Presidential Commission on Good Government v. Desierto, the Court accepted the analysis of the Ombudsman that there was no undercollateralization in the instance where the borrowing corporation offered as collateral a mortgage on its existing assets and assets still to be acquired, and its mining claims, lease contracts and/or patents. The Ombudsman in the said case similarly considered the fact that Midland Cement had offered, as collateral for the initial loan, a mortgage on all its assets, an assignment of all its mining rights and claims, the pledge of common shares of its stockholders and the assignment of subscription receivables. There really is no basis for the Court to countermand the Ombudsmans finding of sufficient collateralization when it has accepted similar findings in the past. These cases reveal that this Court has repeatedly yielded to the determination of the Ombudsman of whether the imputed behest loans were indeed undercollateralized. In order to grant the present petition, the Court will have to deviate from its consistent deferential stance on this issue. In short, there must exist a satisfactory justification that warrants the treatment of this case differently from that accorded to previous similar cases wherein we upheld the Ombudsman. No such justification is offered, and we are not inclined to chart a different course here. Petitioners arguments are further weakened by the fact that in 1972, DBP acquired majority ownership over Midland Cement. That development significantly changed the complexion of the previous and succeeding loan transactions. It would be incorrect to invoke the Civil Code provisions on confusion or merger, as the Ombudsman does in his comment, since DBP and Midland Cement retained their separate juridical personality even after the takeover. But what cannot be denied is that DBP, as the new owner of Midland Cement, indirectly assumed responsibility for the outstanding obligations of the company. It could thus not allow Midland Cement to simply flounder without causing prejudice to its own interests. At this point, the infusion of fresh capital by DBP into Midland Cement cannot be deemed as a reckless hand-out designed to favor a private enterprise at the expense of the public coffers. Instead, it can be reasonably seen as an attempt by DBP to salvage its investment, which could not stand a chance to earn a return unless it is sustained as it were by new capital. If petitioners seriously believe that the only lawful thing DBP could have done was to leave Midland Cement to flounder by itself and not avail of a viable opportunity to recoup the extant losses to the government, it would only go to show that their position is divorced from the realities in the business world. It would be arbitrary even. Indeed, any accountability on the part of the respondents for violation of R.A. No. 3019 will have to stem from the initial extension of the loan in 1968 (the original sin, as it were), an act which created the legal relationship between DBP and Midland Cement and ultimately, tied DBP to the fortunes of Midland Cement. This conclusion would necessarily exonerate respondent Reyes from liability, as she had no hand at all in binding DBP to Midland Cement and her subsequent participation was limited only to the attempts to salvage DBPs investment in the failing company.

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Petitioners make hay over the fact that in the 1998 Resolution of the Office of the Ombudsman, it was asserted that it is beyond doubt that the respondents violated Sec. 3(e) and (g) of *R.A. No.+ 3019, yet in the 2000 Resolution of the same Office, the contrary conclusion was reached that there was wanting of sufficient evidence to establish probable cause to indict the respondents for violation of Section 3(e) and (g) of [R.A. No.] 3019, as amended. But there is a manifest difference between the facts in hand leading to the 1998 Resolution and those which informed the 2000 Resolution. As the Ombudsman admits, his initial evaluation was premised only on petitioners complaint-affidavit and its supporting annexes. The complexion of OMB-0-98-0563, however, changed when private respondent Reyes submitted her counter-affidavit and controverting evidence. Under our rules of criminal procedure, respondents to criminal charges are allowed to submit counter-affidavits executed by themselves and by their witnesses, as well as other supporting documents relied upon for defense. Similarly, under the Rules of Procedure of the Office of the Ombudsman, the investigating officer tasked with evaluating a criminal complaint can refer said complaint to the respondent for comment, or subject the same to a preliminary investigation wherein the respondent would be similarly directed to comment. It is hardly beyond the pale that the submission of controverting evidence by a person charged with a criminal offense could cause the prosecutor to reverse an initial finding of probable cause. In fact, a prosecution that is pursued only after the respondent has been allowed to air his side before the prosecuting officer is more assured in footing than one that is pursued without the respondent having had the opportunity yet to air his defenses. We observe that the 1998 Resolution upon which petitioners heavily rely has taken into account only the allegations submitted by the Ad Hoc Committee, and no other contrary version or theory, when the initial conclusion was reached that it is beyond doubt that the respondents violated Section 3(e) and (g) of R.A. No. 3019. It is quite easy to reach such a conclusion if only the side of the complainant is heard, as what appears to have happened prior to the rendition of the 1998 Resolution. The fact that Reyes filed a counter-affidavit is by no means determinative of the case, or of such coercive character as to impel the dismissal of the complaint. What it does is provide additional context which should guide the Ombudsman in his determination of whether the criminal complaint should be pursued. The admission in the assailed resolution that Reyess counter-affidavit did bear influence in its recommendation is hardly basis to impugn the findings therein, respondents being precisely entitled under the rules and as part of due process to explain their side towards securing a favorable factual determination or adjudication. Finally, it is worth taking into account the legal mandate of DBP in order to supply the fuller context of its loan arrangements with Midland Cement. DBP was constituted in 1946 as the Rehabilitation Finance Corporation, and subsequently reorganized as a bank, with the mandate of providing credit facilities for the rehabilitation and development and expansion of agriculture and industry, and the broadening and diversification of the national economy. It is empowered to grant loans for the rehabilitation, establishment or development of any agricultural and/or industrial enterprise, including public utilities, mining, livestock [and] industry. It is evident that among the designated missions of DBP is to finance private enterprises in starting up their businesses, in the expectation that the success of the business will redound to the benefit of national growth. This function inherently bears risks since not all enterprises actually become successful and quite a number of them ultimately flame out. In the same way that there is no guarantee that every business will end up profitable, there is no certainty that DBP will not sustain losses resulting from its loan transactions with a particular company. It

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would be foolhardy to impute criminal liability against the DBP officers because of the damage sustained from such unsuccessful loan transactions. Distressing as may be the ultimate loss to the Government resulting from DBPs loan transactions with Midland Cement, bad business judgment on the part of the DBP officers does not necessarily translate to criminal liability under R.A. No. 3019. To warrant prosecution, there must be evident deliberation on the part of the bank officials to unlawfully dispense favors or relax regulations for the benefit of the those private individuals or enterprises who transact with DBP. Absent evidence to that effect, the Ombudsman cannot be faulted for not finding a prima facie case against respondents.

WHEREFORE, the petition is DISMISSED. No pronouncement as to costs.

SO ORDERED.

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G.R. No. 169918, February 27, 2008 ROMULO J. MAROHOMSALIC, Petitioner, vs. REYNALDO D. COLE, Respondent. DECISION CORONA, J.: This is a petition for review under Rule 45 of the Rules of Court assailing the decision of the Court of Appeals (CA) dated July 22, 2005 in CA-G.R. SP No. 86911 entitled Romulo J. Marohomsalic v. Reynaldo D. Cole, Office of the Ombudsman and Sylvia Hazel T. BismonteBeltran.

The facts follow.

Petitioner Romulo J. Marohomsalic was employed as Special Land Investigator I of the Provincial Environment and Natural Resources Office of the Department of Environment and Natural Resources (PENRO-DENR) in Koronadal City. Respondent Reynaldo D. Cole had a pending land dispute case in the PENRO-DENR in Koronadal City. Sometime in February 2001, he went to said office to inquire on the status of his case. He met Marohomsalic and asked him for assistance as he was not from Koronadal but from General Santos City. The allegations of fact diverge at this point. Marohomsalic, on one hand, asserted that on March 8, 2001, Cole gave him cash purportedly to cover the expenses for photocopying the documents needed in the case. On the other hand, Cole claimed (and the Ombudsman affirmed) that Marohomsalic demanded P15,000 to secure the reversal of the PENRO-DENR decision against him (Cole). Cole sought the assistance of the National Bureau of Investigation to entrap Marohomsalic. On March 8, 2001, Marohomsalic was caught in flagrante delicto receiving bribe money of P2,700 from Cole. An administrative complaint for grave misconduct was filed against Marohomsalic in the Office of the Ombudsman-Mindanao. After evaluating the respective allegations of the parties, the Ombudsman found Marohomsalic guilty and dismissed him from the service. An order dated April 28, 2004 for the immediate implementation of Marohomsalics dismissal was issued. Marohomsalic appealed to the CA by way of a petition for review under Rule 43 of the Rules of Court. This was dismissed on grounds of procedural infirmities. He then filed this petition for review on certiorari with a prayer for the issuance of a temporary restraining order (TRO). On March 15, 2006, we issued a TRO stopping his dismissal during the pendency of this petition. Marohomsalic raises two basic issues. First, he asserts that the CA acted with grave abuse of discretion amounting to lack or excess of jurisdiction when it dismissed his petition for review on technical grounds. Second, he claims that his right to due process was violated by both the Ombudsman and the CA.

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The petition must be denied.

THERE WAS NO GRAVE ABUSE OF DISCRETION ON THE PART OF THE CA

Marohomsalic considers as grave abuse of discretion the CAs dismissal of his petition on technical grounds, namely, the absence of a written explanation as to why his petition was filed via registered mail instead of personally, and improper verification. He argues that the CA acted with such grave abuse of discretion because, by dismissing his petition, the Ombudsmans authority to dismiss him and the Ombudsmans finding of grave misconduct on his part were upheld. Marohomsalic, however, did not substantiate his claim. Allegations of grave abuse of discretion must be proved. A decision is not deemed tainted with grave abuse of discretion simply because the party affected disagrees with it. Grave abuse of discretion is a capricious and whimsical exercise of judgment that is equivalent to lack of jurisdiction. It must be shown that the discretion was exercised arbitrarily or despotically. In Solidum v. Hernandez, we held: A tribunal, board or officer is said to have acted with grave abuse of discretion when it exercised its power in an arbitrary or despotic manner by reason of passion or personal hostility, and it must be so patent and gross as to amount to an evasion or a virtual refusal to perform the duty enjoined or to act in contemplation of law. Based on the foregoing, the CA did not act with grave abuse of discretion when it dismissed Marohomsalics petition. Its action was predicated on legal, albeit technical, grounds. Marohomsalic, through counsel, assumed that the CA would understand that, because of the distance between Manila and South Cotabato, the petition could not be filed personally. The CA, however, was correct in holding that under Section 11, Rule 13 of the Rules of Court, personal service of petitions and other pleadings is the general rule while resort to the other modes of service and filing is the exception. When recourse is made to the exception, a written explanation of why the service and the filing are not done personally becomes indispensable. If no explanation is offered to justify resorting to the other modes (i.e., the exception), the discretionary power of the court to expunge the pleading comes into play. Regarding the improper verification, Marohomsalic avers that the allegations in his pleading were based on authentic records. He argues that such was substantial compliance with the rule on verification. There was no further need for him to state in the verification that the allegations were also based on his personal knowledge. To require him to do so would be contrary to law. Section 4, Rule 7 of the Rules of Court provides: Sec. 4. Verification. xxx

A pleading is verified by an affidavit that the affiant has read the pleading and that the allegations therein are true and correct of his personal knowledge or based on authentic records. A pleading required to be verified xxx or lacks a proper verification, shall be treated as an unsigned pleading.

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Verification is the assurance that the allegations of the petition have been made in good faith, or are true and correct and not merely speculative. Marohomsalic has apparently missed the import of the foregoing rule. Hun Hyung Park v. Eung Won Choi is instructive on this point: A reading of [the above-quoted] Section 4 of Rule 7 indicates that a pleading may be verified under either of the two given modes or under both. The veracity of the allegations in a pleading may be affirmed based on either one's own personal knowledge or on authentic records, or both, as warranted. The use of the preposition "or" connotes that either source qualifies as a sufficient basis for verification and, needless to state, the concurrence of both sources is more than sufficient. Bearing both a disjunctive and conjunctive sense, this parallel legal signification avoids a construction that will exclude the combination of the alternatives or bar the efficacy of any one of the alternatives standing alone. Contrary to petitioner's position, the range of permutation is not left to the pleader's liking, but is dependent on the surrounding nature of the allegations which may warrant that a verification be based either purely on personal knowledge, or entirely on authentic records, or on both sources. As pointed *out by respondent+, authentic records as a basis for verification bear significance in petitions wherein the greater portions of the allegations are based on the records of the proceedings in the court of origin and/or the court a quo, and not solely on the personal knowledge of the petitioner. xxx (emphasis supplied) We reiterate: whether the verification should be based on the pleaders personal belief or on authentic records, or both, depends largely on the nature of the allegations. It is not a matter of simple preference. Otherwise, the rationale of the rule will be trivialized and its resoluteness diminished. The CA correctly ruled that the requirement was not merely technical for it served a purpose that was relevant to the nature of the action. In an appeal by petition for review under Rule 43 of the Rules of Court, the petition may be resolved on the basis of the pleadings before the appellate court without the necessity of elevating the records from the quasi-judicial officer, tribunal or body where the case began. This is in contrast with an appeal by writ of error under Rule 41 according to which the appellate court may not act on the appeal until after the elevation of the records from the lower court. It was important therefore for petitioner to have stated in his verification that (1) his allegations in the petition were true and correct of his personal knowledge and (2) if the petition relied on documents and records attached to the petition, that his allegations were based on records whose authenticity he warranted. But granting arguendo that Marohomsalics contention was correct, his petition must nevertheless still fail. The CA found that only the March 24, 2004 order of the Office of the Ombudsman was an original copy. The copy of the February 23, 2004 decision of the Ombudsman was a machine copy. Furthermore, of the ten other documents attached to the petition, none was certified as a true and authentic copy. The only conclusion we can make is that Marohomsalics verification was not based either on personal knowledge or on authentic records. While procedural rules may be relaxed in the interest of justice, it is well-settled that these are tools designed to facilitate the adjudication of cases. The relaxation of procedural rules in the interest of justice was never intended to be a license for erring litigants to violate the rules with impunity. Liberality in the interpretation and application of the rules can be invoked only in proper cases and under justifiable causes and circumstances. While litigation is not a game of technicalities, every case must be prosecuted in accordance with the prescribed procedure to ensure an orderly and speedy administration of justice.

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THE OMBUDSMAN HAS THE POWER TO ORDER THE DISMISSAL OF A PUBLIC OFFICER The jurisdiction of the Ombudsman over disciplinary cases against government employees is vested by no less than Section 12, Article XI of the Constitution. Part of such disciplinary authority in administrative cases is the power to investigate and prosecute, in accordance with the requirements laid down by law. One such requirement is that substantial evidence must always support any finding. One of the grounds for an administrative complaint cognizable by the Ombudsman is an act or omission contrary to law or regulations like grave misconduct. It is characterized by the elements of corruption, clear intent to violate the law or flagrant disregard of an established rule. Corruption as an element of grave misconduct includes the act of an official who unlawfully or wrongfully uses his station or character to procure some benefit for himself, contrary to the rights of others. The Ombudsman found that Marohomsalic directly requested and received money from Cole in connection with a transaction in which he was involved in his official capacity. It concluded that Marohomsalics act constituted grave misconduct. An analysis of the assailed decision of the Ombudsman-Mindanao shows that there was substantial evidence to sustain such finding. Without a showing of grave abuse of discretion, there is nothing more left to be done but to uphold the findings of fact of the Ombudsman. The Supreme Court is not a trier of facts, especially in a petition for review under Rule 45. In Brito v. Office of the Deputy Ombudsman for Luzon, et al., we said that: Except in cases when there is grave abuse of discretion [in the exercise of its discretion], which is absent in [this] case, we have adopted a policy of non-interference in the exercise of the Ombudsmans constitutionally mandated powers on this matter. This rule is based not only upon respect for the investigatory and prosecutory powers granted by the Constitution to the Office of the Ombudsman but upon practicality as well. Otherwise, the functions of the courts will be grievously hampered by innumerable petitions assailing the dismissal of investigatory proceedings conducted by the Office of the Ombudsman with regard to complaints filed before it, xxx. Corollary to the Ombudsmans disciplinary authority is his authority to dismiss. This matter has long been settled. RA 6770, which provides for the functional and structural organization of the Office of the Ombudsman, was passed by Congress to deliberately endow the Ombudsman with the power to prosecute offenses committed by public officers and employees to make him a more active and effective agent of the people in ensuring accountability in public office. Moreover, Congress granted the Ombudsman broad powers to implement his own actions. In Ombudsman v. CA and Magbanua, the extent of the Ombudsmans disciplinary administrative authority was explained: [The] provisions in Republic Act No. 6770 taken together reveal the manifest intent of the lawmakers to bestow on the Office of the Ombudsman full administrative disciplinary authority. These provisions cover the entire gamut of administrative adjudication which entails the authority to, inter alia, receive complaints, conduct investigations, hold hearings in accordance with its rules of procedure, summon witnesses and require the production of documents, place under preventive suspension public officers and employees pending an investigation, determine the appropriate penalty imposable on erring public officers or employees as warranted by the evidence, and necessarily, impose the said penalty. xxx xxx xxx

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The legislative history of Republic Act No. 6770 thus bears out the conclusion that the Office of the Ombudsman was intended to possess full administrative disciplinary authority, including the power to impose the penalty of removal, suspension, demotion, fine, censure, or prosecution of a public officer or employee found to be at fault. The lawmakers envisioned the Office of the Ombudsman to be "an activist watchman," not merely a passive one. xxx Clearly, the Ombudsman has the power to directly impose administrative penalties on erring public officials and employees like Marohomsalic.

THERE WAS NO DENIAL OF DUE PROCESS

Marohomsalic avers that his right to due process of law was violated by the Ombudsman when his case was set neither for preliminary investigation nor for preliminary conference. He further alleges that he should have been investigated under the old rules of procedures of the Office of the Ombudsman, not under the new rules, because he committed the alleged offense when the old rules were still in effect. Marohomsalic is confused. The Office of the Ombudsman has only one set of rules of procedure and that is Administrative Order No. 07, series of 1990, as amended. There have of course been various amendments made thereto but it has remained, to date, the only set of rules of procedure governing cases filed in the Ombudsman. Hence, the phrase as amended is correctly appended to Administrative Order No. 7 every time it is invoked. Administrative Order No. 17 is just one example of these amendments. Semantics aside, Marohomsalics contention that his case should have been prosecuted under Administrative Order No. 7, s. 1990, as amended, without the amendments introduced by Administrative Order No. 17, is erroneous. Section 4 of Administrative Order No. 7, as amended by Administrative Order No. 17, provides: [The rules] shall govern all cases brought after they take effect and to further proceedings in cases then pending, except to the extent that their application would not be feasible or would cause injustice to any party. (emphasis supplied) Marohomsalic failed to prove how an application of the rules as amended would not be feasible under the circumstances or how it would cause injustice to him. Marohomsalic likewise maintains that the old rules must apply to his case, in accordance with the principle that criminal laws favorable to the accused must be liberally construed in his favor. We disagree. Since the subject of this petition is an administrative complaint, not a criminal complaint, this case is not subject to criminal laws and procedure, or principles applicable only thereto. More importantly, he must not be allowed to hide behind the cloak of liberal construction favoring the accused, if at all this principle finds application in this case. To permit him to do so will be a mockery of public trust and accountability. WHEREFORE, the petition is hereby DENIED. The temporary restraining order we issued on March 15, 2006 is LIFTED.

Costs against petitioner.

SO ORDERED.

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G.R. No. 180700 March 4, 2008 GERARDO R. VILLASEOR and RODEL A. MESA, Petitioners, - versus SANDIGANBAYAN (5th Division) and LOUELLA MAE OCO-PESQUERRA (Office of the Special Prosecutor, Ombudsman), Respondents.

RESOLUTION

REYES, R.T., J.: DOES preventive suspension in an administrative proceeding bar preventive suspension in a criminal case founded on the same facts and circumstances? The question is posed in this petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure. Petitioners seek to annul and set aside the Sandiganbayan Resolution of July 3, 2007 in Criminal Case No. 27756 for violation of Section 3, Republic Act (R.A.) No. 3019, as amended, suspending them pendente lite. Also assailed is the October 10, 2007 Resolution denying their motion for reconsideration. Factual Antecedents On August 18, 2001, disaster struck. In the wee hours of the morning, the Quezon City Manor Hotel went ablaze resulting in the death of seventy-four (74) people and injuries to scores of others. Investigation into the tragedy revealed that the hotel was a veritable fire trap. Petitioners, together with other officials of the City Engineering Office of Quezon City, are presently facing criminal charges before the 5th Division of the Sandiganbayan for the crime of multiple homicide through reckless imprudence and for violation of Section 3(e) of R.A. No. 3019. They were also charged administratively with gross negligence, gross misconduct and conduct prejudicial to the interest of the service in connection with the Manor Hotel inferno. In two separate Orders dated August 29, 2001 and September 7, 2001 in the administrative case, petitioners Villaseor and Mesa were preventively suspended for a period of six (6) months, effective upon receipt of the suspension order. On September 20, 2006, during the pendency of the criminal case, respondent special prosecutor Louella Mae Oco-Pesquera filed a motion for suspension pendente lite of petitioners. Petitioners opposed the motion, contending that they had already been suspended for six (6) months relative to the administrative case, based on the same facts and circumstances. They posited that any preventive suspension that may be warranted in the criminal case was already absorbed by the preventive suspension in the administrative case because both the criminal and administrative cases were anchored on the same set of facts.

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In the assailed Resolution of July 3, 2007, respondent court granted the prosecutions motion for suspension. It ordered the suspension of petitioners for a period of ninety (90) days. The dispositive portion reads, thus:
WHEREFORE, in light of the foregoing, accused Romeo M. Montallana, Romualdo C. Santos, Gerardo R. Villaseor, and Rodel A. Mesa are hereby suspended from their respective public positions as earlier enumerated, and from any other public office which they may now or hereafter be holding for a period of ninety (90) days from receipt of this resolution, unless a motion for reconsideration is seasonably filed. While the prosecution sought to suspend accused Alfredo N. Macapugay, it appears, however, that he was already dismissed from the service, hence, he can no longer be subjected to this suspension order. Let a copy of this resolution be furnished Honorable Feliciano Belmonte, Quezon City Mayor for implementation of this suspension. He is hereby requested to inform this Court of his action thereon within five (5) days from receipt of this resolution. The suspension of the accused shall be automatically lifted upon the expiration of the ninety-day period from the time of the implementation of this resolution. SO ORDERED.

In the equally assailed Resolution of October 10, 2007, petitioners motion for reconsideration was denied for lack of merit. Issue Petitioners have resorted to the present recourse, hoisting the lone issue of WHETHER OR NOT THE PUBLIC RESPONDENT ACTED IN EXCESS OF JURISDICTION AND/OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION IN ORDERING THE SUSPENSION PENDENTE LITE OF HEREIN PETITIONERS DESPITE THE FACT THAT THEY HAD ALREADY BEEN PREVIOUSLY SUSPENDED ADMINISTRATIVELY BASED ON THE SAME FACTS AND CIRCUMSTANCES. Our Ruling Mandatory nature of preventive suspension It is well-settled that preventive suspension under Section 13 of R.A. No. 3019 is mandatory. It is evident from the very wording of the law:
Suspension and loss of benefits. Any incumbent public officer against whom any criminal prosecution under a valid information under this Act or under Title 7, Book II of the Revised Penal Code or for any offense involving fraud upon the government or public funds or property, whether as a simple or as a complex offense and in whatever stage of the execution and mode of participation, is pending in court, shall be suspended from office. x x x (Underscoring supplied)

A whole slew of cases reinforce this provision of law. In Luciano v. Provincial Governor, the Court pronounced that suspension of a public officer under Section 13 of R.A. No. 3019 is mandatory. This was reiterated in Luciano v. Mariano, People v. Albano, Gonzaga v. Sandiganbayan and Bunye v. Escareal. In the last mentioned case, the Court said:
Adverting to this Courts observation in Ganzon v. CA, 200 SCRA 271, 272, that the sole objective of an administrative suspension is to prevent the accused from hampering the normal course of the investigation with his influence and authority over possible witnesses or to keep him off the records and other evidence and to assist prosecutors in firming up a case, if any, against an erring official, the petitioners insist that as no such reason for their suspension exists, then the order suspending them should be set aside as a grave abuse of the courts discretion.

xxxx

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The Court finds no merit in those arguments. Section 13 of R.A. No. 3019, as amended, unequivocally provides that the accused public officials shall be suspended from office while the criminal prosecution is pending in court. In Gonzaga v. Sandiganbayan, 201 SCRA 417, 422, 426, this Court ruled that such preventive suspension is mandatory; there are no ifs and buts about it. (Underscoring supplied)

Again, in Bolastig v. Sandiganbayan, the Court stressed the mandatory nature of preventive suspension as follows:
x x x It is now settled that Sec. 13 of Republic Act No. 3019 makes it mandatory for the Sandiganbayan to suspend any public official against whom a valid information charging violation of that law, Book II, Title 7 of the Revised Penal Code, or any offense involving fraud upon government or public funds or property is filed. The court trying a case has neither discretion nor duty to determine whether preventive suspension is required to prevent the accused from using his office to intimidate witnesses or frustrate his prosecution or continuing committing malfeasance in office. The presumption is that unless the accused is suspended he may frustrate his prosecution or commit further acts of malfeasance or do both, in the same way that upon a finding that there is probable cause to believe that a crime has been committed and that the accused is probably guilty thereof, the law requires the judge to issue a warrant for the arrest of the accused. The law does not require the court to determine whether the accused is likely to escape or evade the jurisdiction of the court. (Underscoring supplied)

Clearly, there can be no doubt as to the validity of the Sandiganbayans suspension of petitioners in connection with the pending criminal case before it. It was merely doing what was required of it by law. Criminal and administrative cases separate and distinct Significantly, there are three kinds of remedies that are available against a public officer for impropriety in the performance of his powers and the discharge of his duties: (1) civil, (2) criminal, and (3) administrative. These remedies may be invoked separately, alternately, simultaneously or successively. Sometimes, the same offense may be the subject of all three kinds of remedies. Defeat of any of the three remedies will not necessarily preclude resort to other remedies or affect decisions reached thereunder, as different degrees of evidence are required in these several actions. In criminal cases, proof beyond reasonable doubt is needed whereas a mere preponderance of evidence will suffice in civil cases. In administrative proceedings, only substantial evidence is required. It is clear, then, that criminal and administrative cases are distinct from each other. The settled rule is that criminal and civil cases are altogether different from administrative matters, such that the first two will not inevitably govern or affect the third and vice versa. Verily, administrative cases may proceed independently of criminal proceedings. Socrates v. Sandiganbayan, citing the Courts pronouncements in Luciano v. Provincial Governor, recounted:
The Court then hastened to clarify that such a view may not be taken as an encroachment upon the power of suspension given other officials, reiterating in the process that a line should be drawn between administrative proceedings and criminal actions in court, that one is apart from the other. x x x (Underscoring supplied)

Based on the foregoing, criminal actions will not preclude administrative proceedings, and vice-versa, insofar as the application of the law on preventive suspension is concerned.

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Preventive suspension not a penalty Imposed during the pendency of proceedings, preventive suspension is not a penalty in itself. It is merely a measure of precaution so that the employee who is charged may be separated, for obvious reasons, from office. Thus, preventive suspension is distinct from the penalty. While the former may be imposed on a respondent during the investigation of the charges against him, the latter may be meted out to him at the final disposition of the case. The Courts discussion in Quimbo v. Gervacio is enlightening:
Jurisprudential law establishes a clear-cut distinction between suspension as preventive measure and suspension as penalty. The distinction, by considering the purpose aspect of the suspensions, is readily cognizable as they have different ends sought to be achieved. Preventive suspension is merely a preventive measure, a preliminary step in an administrative investigation. The purpose of the suspension order is to prevent the accused from using his position and the powers and prerogatives of his office to influence potential witnesses or tamper with records which may be vital in the prosecution of the case against him. If after such investigation, the charge is established and the person investigated is found guilty of acts warranting his suspension or removal, then he is suspended, removed or dismissed. This is the penalty. That preventive suspension is not a penalty is in fact explicitly provided by Section 24 of Rule XIV of the Omnibus Rules Implementing Book V of the Administrative Code of 1987 (Executive Order No. 292) and other Pertinent Civil Service Laws. Sec. 24. Preventive suspension is not a punishment or penalty for misconduct in office but is considered to be a preventive measure.

The accused public officers whose culpability remains to be proven are entitled to the constitutional presumption of innocence. The law itself provides for the reinstatement of the public officer concerned and payment to him of the salaries and benefits for the duration of the suspension in the event of an acquittal:
Suspension and loss of benefits. Any incumbent public officer against whom any criminal prosecution under a valid information under this Act or under Title 7, Book II of the Revised Penal Code or for any offense involving fraud upon the government or public funds or property, whether as a simple or as a complex offense and in whatever stage of the execution and mode of participation, is pending in court, shall be suspended from office. Should he be convicted by final judgment, he shall lose all retirement and gratuity benefits under the law, but if he is acquitted, he shall be entitled to reinstatement and to the salaries and benefits which he failed to receive during suspension, unless in the meantime administrative proceedings have been filed against him. (Underscoring supplied)

Sec. 13 of R.A. No. 3019 not a penal provision but a procedural one It is petitioners contention that as a penal statute, the provision on preventive suspension should be strictly construed against the State and liberally in their favor. We cannot agree. Section 13 of R.A. No. 3019 on preventive suspension is not a penal provision. It is procedural in nature. Hence, the strict construction rule finds no application. The Court expounded on this point in Buenaseda v. Flavier:
Penal statutes are strictly construed while procedural statutes are liberally construed (Crawford, Statutory Construction, Interpretation of Laws, pp. 460-461; Lacson v. Romero, 92 Phil. 456 [1953]). The test in determining if a statute is penal is whether a penalty is imposed for the punishment of a wrong to the public or for the redress of an injury to an individual (59 Corpuz Juris, Sec. 658; Crawford, Statutory Construction, pp. 496-497). A Code prescribing the procedure in criminal cases is not a penal statute and is to be interpreted liberally (People v. Adler, 140 N.Y. 331; 35 N.E. 644). (Underlining supplied)

As We have already established, preventive suspension is not, in actual fact, a penalty at all. It is a procedural rule.

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Automatic lift of suspension after ninety (90) days It must be borne in mind that the preventive suspension of petitioners will only last ninety (90) days, not the entire duration of the criminal case like petitioners seem to think. Indeed, it would be constitutionally proscribed if the suspension were to be of an indefinite duration or for an unreasonable length of time. The Court has thus laid down the rule that preventive suspension may not exceed the maximum period of ninety (90) days, in consonance with Presidential Decree No. 807, now Section 52 of the Administrative Code of 1987. Even the dispositive portion itself of the assailed July 3, 2007 Resolution could not be any clearer: WHEREFORE, x x x. xxxx
The suspension of the accused shall be automatically lifted upon the expiration of the ninety-day period from the time of the implementation of this resolution. SO ORDERED.

In fine, the preventive suspension against petitioners must be upheld, as the Sandiganbayan committed no grave abuse of discretion.

WHEREFORE, the petition is DISMISSED for lack of merit.

SO ORDERED.

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G.R. No. 110503 August 4, 1994 ANTONIO M. BOLASTIG, petitioner, vs. HON. SANDIGANBAYAN (Third Division) and THE PEOPLE OF THE PHILIPPINES, respondents. MENDOZA, J.: This is a petition for certiorari to set aside the resolution, dated March 18, 1993, of the Sandiganbayan, granting the motion of the Special Prosecution Officer to suspend the accused from office pendente lite and the resolution, dated March 29, 1993, denying reconsideration of the first resolution. Petitioner Antonio M. Bolastig is governor of Samar. On August 31, 1989, an information was filed against him and two others for alleged overpricing of 100 reams of onion skin paper in violation of the Anti-Graft and Corrupt Practices Act (Republic Act No. 3019). The Information alleged:
That on or about June 24, 1986, in the Municipality of Catbalogan, Samar, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused ANTONIO M. BOLASTIG, PEDRO ASON and PRUDENCIO MACABENTA, all public officers, duly appointed and qualified as such, being the OIC Governor, Provincial Treasurer and Property Officer respectively, all of the Province of Samar, and being members of Bids and Awards Committee responsible for the purchase of office supplies for the Provincial Government of Samar and while in the performance of their respective positions, confederating and mutually helping one another and through manifest partiality and evident bad faith, did then and there wilfully and unlawfully enter into a purchase contract with REYNALDO ESPARAGUERRA, a private citizen, for the purchase of certain office supplies, namely: one hundred (100) reams of Onion Skin size 11" x 17" at a unit price of Five Hundred Fifty pesos (P550.00) or a total price of Fifty-Five Thousand Pesos (P55,000.00), which contract was manifestly and grossly disadvantageous to the government as the prevailing unit price for said item was only Fifty-Five Pesos (P55.00) or a total price of Five Thousand Five Hundred Pesos (P5,500.00), thereby causing undue injury to the government in the total amount of Forty-Nine Thousand Five Hundred Pesos (P49,500.00). CONTRARY TO LAW.

Petitioner was arraigned on January 5, 1993, whereupon he entered a plea of "not guilty." On January 25, 1993, Special Prosecution Officer III Wilfredo Orencia moved for petitioner's suspension, citing sec. 13 of Republic Act No. 3019 which provides in part:
Sec. 13. Suspension and loss of benefits. Any incumbent public officer against whom any criminal prosecution under a valid information under this Act or under Title 7, Book II of the Revised Penal Code or for any offense involving fraud upon government or public funds or property, whether as a simple or as a complex offense and in whatever stage of execution and mode of participation, is pending in court, shall be suspended from office.

Petitioner opposed the motion, arguing inter alia that:

2. Upon a bare invocation of the foregoing provision, the prosecution would have this Honorable Court issue an Order suspending the accused, as if suspension of a public officer is a mindless and meaningless exercise, and is imposed without regard to the spirit and intent of the law upon which it is based. 3. Indeed, it cannot be simply assumed that laws are enacted and followed without a particular purpose to be served, especially when a mechanical application shall injure not only the public official concerned, but the entire electorate as well.

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The Sandiganbayan rejected petitioner's argument and ordered the suspension of petitioner from office for a period of 90 days. It held that preventive suspension is mandatory under sec. 13, of Rep. Act No. 3019, pursuant to which all that is required is for the court to make a finding that the accused stands charged under a valid information "for any of the above-described crimes for the purpose of granting or denying the sought for suspension." Implementation of the resolution was held in abeyance to allow petitioner to file a motion for reconsideration, which the Sandiganbayan, however, eventually denied on March 29, 1993. Hence, this petition. It is contended that the Sandiganbayan committed a grave abuse of its discretion in issuing its resolution
(a) despite the failure of the prosecution to show any public interest to be served, or injury to be prevented, or any other compelling factual circumstance which justifies the preventive suspension of petitioner; and (b) despite the injury not only upon petitioner but also upon the people of Samar whose political rights are trenched upon by the suspension for no valid reason of their duly elected Governor.

To the Solicitor General's contention that upon the filing of a valid information suspension pendente lite is mandatory as held in several decisions of this Court, petitioner replies that, while the Sandiganbayan has the power to order preventive suspension, there is a "need [for the Sandiganbayan] to go further, beyond the filing of the information, to a determination of the necessity of the preventive suspension in accordance with the spirit and intent of the AntiGraft Law." Petitioner explains:
In other words, when the Anti-Graft Law gave the courts the authority to order the preventive suspension of the accused, it never intended to impose a mindless and meaningless exercise. The exercise of such authority must always be within the confines of the legislative intent, for to go beyond it would be to exceed the bounds of the law. Preventive suspension should therefore be ordered only when the legislative purpose is achieved, that is, when "the suspension order . . . prevent(s) the accused from using his office to influence potential witnesses or tamper with records which may be vital in the prosecution of the case against him." Corollarily, when the legislative purpose is not achieved, preventive suspension is improper and should not be decreed."

The petitioner's contention has no merit. It is now settled that sec. 13 of Republic Act No. 3019 makes it mandatory for the Sandiganbayan to suspend any public officer against whom a valid information charging violation of that law, Book II, Title 7 of the Revised Penal Code, or any offense involving fraud upon government or public funds or property is filed. 5 The court trying a case has neither discretion nor duty to determine whether preventive suspension is required to prevent the accused from using his office to intimidate witnesses or frustrate his prosecution or continue committing malfeasance in office. The presumption is that unless the accused is suspended he may frustrate his prosecution or commit further acts of malfeasance or do both, in the same way that upon a finding that there is probable cause to believe that a crime has been committed and that the accused is probably guilty thereof, the law requires the judge to issue a warrant for the arrest of the accused. The law does not require the court to determine whether the accused is likely to escape or evade the jurisdiction of the court. It is indeed true that in some of our decisions the expression "the maximum period of ninety (90) days" is used. But that is only for the purpose of emphasizing that the preventive suspension therein involved, which were for more than ninety (90) days, were excessive and unreasonable. It is to be noted that the ninety-day period of preventive suspension is not found in sec. 13 of Republic Act No. 3019 but was adopted from sec. 42 of the Civil Service Decree (P.D. No. 807), which is now sec. 52 of the Administrative Code of 1987. This latter provision states:

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Sec. 52. Lifting of Preventive Suspension Pending Administrative Investigation. When the administrative case against the officer or employee under preventive suspension is not finally decided by the disciplining authority within the period of ninety (90) days after the date of suspension of the respondent who is not a presidential appointee, the respondent shall be automatically reinstated in the service: Provided, That when the delay in the disposition of the case is due to the fault, negligence or petition of the respondent, the period of delay shall not be counted in computing the period of suspension herein provided.

The duration of preventive suspension is thus coeval with the period prescribed for deciding administrative disciplinary cases. If the case is decided before ninety days, then the suspension will last less than ninety days, but if the case is not decided within ninety days, then the preventive suspension must be up to ninety days only. Similarly, as applied to criminal prosecutions under Republic Act No. 3019, preventive suspension will last for less than ninety days only if the case is decided within that period; otherwise, it will continue for ninety days. The duration of preventive suspension will, therefore, vary to the extent that it is contingent on the time it takes the court to decide the case but not on account of any discretion lodged in the court, taking into account the probability that the accused may use his office to hamper his prosecution. Indeed, were the Sandiganbayan given the discretion to impose a shorter period of suspension, say, 80, 70 or 60 days, as petitioner asserts, it would lie in its power not to suspend the accused at all. That, of course, would be contrary to the command of sec. 13 of Republic Act No. 3019. Our holding that, upon the filing of a valid information charging violation of Republic Act No. 3019, Book II, Title 7 of the Revised Penal Code, or fraud upon government or public property, it is the duty of the court to place the accused under preventive suspension disposes of petitioner's other contention that since the trial in the Sandiganbayan is now over with respect to the presentation of evidence for the prosecution there is no longer any danger that petitioner would intimidate prosecution's witnesses. The fact is that the possibility that the accused would intimidate witnesses or otherwise hamper his prosecution is just one of the grounds for preventive suspension. The other one is, as already stated, to prevent the accused from committing further acts of malfeasance while in office. Finally, the fact that petitioner's preventive suspension may deprive the people of Samar of the services of an official elected by them, at least temporarily, is not a sufficient basis for reducing what is otherwise a mandatory period prescribed by law. The vice governor, who has likewise been elected by them, will act as governor. Indeed, even the Constitution authorizes the suspension for not more than sixty days of members of Congress found guilty of disorderly behavior, 9 thus rejecting the view expressed in one case 10 that members of the legislature could not be suspended because in the case of suspension, unlike in the case of removal, the seat remains filled but the constituents are deprived of representation. For the foregoing reasons, we hold that in ordering the preventive suspension of petitioner, the Sandiganbayan acted according to law. WHEREFORE, the Petition for Certiorari is DISMISSED. SO ORDERED.

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G.R. No. 164298, April 30, 2008 ENGR. ROGER F. BORJA, Petitioner, vs. THE PEOPLE OF THE PHILIPPINES, Respondent. DECISION QUISUMBING, J.: For review on certiorari are the Decision dated March 19, 2004 and Resolution dated June 28, 2004, of the Court of Appeals in CA-G.R. SP. No. 77453.

The facts are as follows:

In three Informations filed with the Regional Trial Court of San Pablo City, Laguna, Branch 30, petitioner Engr. Roger F. Borja, in his capacity as General Manager C of the San Pablo Water District, was charged with violation of Section 3 (e) of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act. On January 13, 2003, Borja filed a Motion to Suspend Arraignment. Borja alleged that there is a pending civil case entitled Feliciano v. Commission on Audit, docketed before this Court as G.R. No. 147402, which involves the issue of whether local water districts are private or government-owned or controlled corporations (GOCCs). He argued that the issue is a prejudicial question, the resolution of which determines whether or not the criminal actions against him may proceed. If this Court resolves that local water districts are private corporations, the graft cases against him will not prosper since then he would not be a public officer covered by Rep. Act No. 3019. On February 18, 2003, the trial court denied the motion. Later it also denied his motion for reconsideration. Aggrieved, Borja filed a petition for certiorari before the Court of Appeals, which, however, dismissed his petition for lack of merit after noting the previous cases wherein we held that local water districts are GOCCs. Borja sought reconsideration, but it was likewise denied. Hence, this petition. Borja raises the following issues: I. WHETHER OR NOT THE HONORABLE COURT OF APPEALS SECOND DIVISION ERRED IN DISMISSING THE PETITION FOR CERTIORARI IN CA-[G.R.] SP NO. 77453 AS WELL AS PETITIONER'S MOTION FOR RECONSIDERATION DATED 23 MARCH 2004[.] II. WHETHER OR NOT THE HONORABLE COURT OF APPEALS SECOND DIVISION ERRED IN NOT APPLYING ESTABLISHED JURISPRUDENCE IN RESOLVING TO DISMISS THE PETITION FOR CERTIORARI IN CA-[G.R.] SP NO. 77453[.] Simply, the issue is: Did the Court of Appeals err in ruling that there was no prejudicial question warranting the suspension of the proceedings of the graft cases? Petitioner reiterates his arguments before the Court of Appeals and insists that the appellate court should have ordered the suspension of his arraignment while the Feliciano case is

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pending before us.

For the People, the Office of the Solicitor General pointed out that we had already rendered a decision on the Feliciano case on January 14, 2004 and that we had ruled therein that local water districts are not private corporations but GOCCs. Therefore, the criminal cases against Borja must proceed because he is a public officer covered by Rep. Act No. 3019.

The petition is bereft of merit.

Borja's contention that a prejudicial question exists in his case is clearly devoid of any legal basis, considering that it had been settled, long before the Feliciano case, that local water districts are GOCCs, and not private corporations. This is because local water districts do not derive their existence from the Corporation Code, but from Presidential Decree No. 198, as amended. Thus, being a public officer, Borja can certainly be indicted for violation of Rep. Act No. 3019. Moreover, it did not also escape our notice that at the time Borja filed his petition before us on July 21, 2004, he no longer has any basis to question the Decision and Resolution of the Court of Appeals. This is because more than six months have elapsed by then since we had decided the Feliciano case. WHEREFORE, the petition is DENIED for lack of merit. The assailed Decision dated March 19, 2004 and Resolution dated June 28, 2004 of the Court of Appeals in CA-G.R. SP. No. 77453 are hereby AFFIRMED.

Costs against the petitioner.

SO ORDERED.

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