Crim 2 ra 9165 and 10640 and other related cases

Republic of the Philippines Congress of the Philippines Metro Manila Sixteenth Congress First Regular Session Begun and held in Metro Manila, on Monday, the twenty-second day of July, two thousand thirteen.

REPUBLIC ACT NO. 10640 AN ACT TO FURTHER STRENGTHEN THE ANTI-DRUG CAMPAIGN OF THE GOVERNMENT, AMENDING FOR THE PURPOSE SECTION 21 OF REPUBLIC ACT NO. 9165, OTHERWISE KNOWN AS THE “COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002 Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled: SECTION 1. Section 21 of Republic Act No. 9165, otherwise known as the “Comprehensive Dangerous Drugs Act of 2002”, is hereby amended to read as follows: “SEC. 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. – The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner: “(1) The apprehending team having initial custody and control of the dangerous drugs, controlled precursors and essential chemicals, instruments/paraphernalia and/or laboratory equipment shall, immediately after seizure and confiscation, conduct a physical inventory of the seized items 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, with an elected public official and a representative of the National Prosecution Service or the media who shall be required to sign the copies of the inventory and be given a copy thereof: 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, finally, That noncompliance of 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 and custody over said items. “x x x “(3) A certification of the forensic laboratory examination results, which shall be done by the forensic laboratory examiner, shall be issued immediately upon the receipt of the subject item/s: Provided, That when the volume of dangerous drugs, plant sources of dangerous drugs, and controlled precursors and essential chemicals does not allow the completion of testing within the time frame, a partial laboratory examination report shall be provisionally issued stating therein the quantities of dangerous drugs still to be examined by the forensic laboratory: Provided, however, That a final certification shall be issued immediately upon completion of the said examination and certification; “x x x.” SEC. 2. Implementing Rules and Regulations (IRR). – To implement effectively the provisions of Section 21, the Philippine Drug Enforcement Agency (PDEA) shall issue the necessary guidelines on the IRR for the purpose in consultation with the Department of Justice (DO J) and relevant sectors to curb increasing drug cases. SEC. 3. Separability Clause. – If any provision or part hereof is held invalid or unconstitutional, the remainder of the law or the provision not otherwise affected shall remain valid and subsisting.

SEC. 4. Repealing Clause. – All laws, presidential decrees or issuances, executive orders, letters of instruction, administrative orders, rules and regulations contrary to or inconsistent with the provisions of this Act are hereby repealed, modified or amended accordingly. SEC. 5. Effectivity. – This Act shall take effect fifteen (15) days after its complete publication in at least two (2) newspapers of general circulation. Approved,

SECOND DIVISION

PEOPLE OF THE PHILIPPINES, G.R. No. 183101 Appellee, Present: CARPIO, J., Chairperson, - versus - PERALTA, ABAD, VILLARAMA, JR.,* and MENDOZA, JJ. NOEL CATENTAY, Appellant. Promulgated: July 6, 2010 x ---------------------------------------------------------------------------------------- x DECISION ABAD, J.:

This case is about the duty of the prosecution in a prohibited drugs case to prove the integrity of the corpus delicti by establishing the chain of custody of the allegedly illegal substance that the police officers seized from the accused. The Facts and the Case On April 19, 2004 the Assistant City Prosecutor of Quezon City filed two separate informations against the accused Noel Doroja Catentay alias Boy (Catentay) before the Regional Trial Court (RTC) of that city in Criminal Cases Q-04-126517 and Q-04-126518 for violations of Sections 5 and 11, Article II of Republic Act (R.A.) 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002. The cases were tried together.[1] At the pre-trial, the parties stipulated: (1) that PO1 Reyno Riparip (Riparip), the Investigator-On-Case, investigated the case before referring it to the inquest prosecutor; (2) that Riparip prepared the referral letter for inquest, the joint affidavit of the arresting officers, and the request for laboratory examination though he had no personal knowledge as to the circumstances of the arrest of Catentay or the source of the specimens; and (3) that Leonard M. Jabonillo, a forensic chemical officer, received the request for laboratory examination of the specimen involved, examined the same, and found it positive for methylamphetamine hydrochloride (shabu).[2] PO3 Gerardo Quimson, a police officer, testified that on April 14, 2004 his anti-illegal drugs unit received a report of drug trafficking by Catentay at a billiard hall.[3] This prompted the police to conduct a buy-bust operation at the place. PO3 Quimson was to serve as the poseur-buyer while PO2 Valdez was to serve as pick-up officer. During the briefing, PO3 Quimson marked a 100-peso bill with his initials GQ to serve as buy-bust money. After the briefing, the team proceeded to the subject billiard hall with their informant. The latter introduced PO3 Quimson to Catentay as someone who wanted to buy P100.00 worth of shabu. After PO3 Quimson gave the money, Catentay took out two heat-sealed, transparent plastic sachets containing a white crystalline substance from his pocket and handed one sachet to the police officer.[4] Upon receiving the sachet, PO3 Quimson scratched his head to signal the consummation of the transaction. PO2 Valdez then approached and with Quimson introduced themselves to Catentay as police officers. They apprised him of his constitutional rights, arrested him, and seized from him the other heat-sealed sachet and the buy-bust money. PO3 Quimson then wrote the letters GQ on the sachet he bought from Catentay and GQ-1 on the other sachet they seized from him.[5] The officers turned over Catentay and the items they got from him to the desk officer at the police station. The investigator, whom PO3 Quimson did not identify, then submitted the sachets of white crystalline substances to the

Philippine National Police Crime Laboratory for examination. These were found positive for methylamphetamine hydrochloride or shabu.[6] In court, PO3 Quimson identified the sachets of shabu he got from Catentay. Instead of presenting PO2 Valdez, the parties stipulated (1) that he was a police officer; (2) that he was involved as arresting officer in the buybust operation; (3) that he recovered the buy-bust money from Catentay; and (4) that he can identify him and the buybust money used.[7] As expected, Catentay presented the court with a different version. He claims that on April 14, 2004 he was plying his route as a tricycle driver when PO3 Quimson, PO1 Riparip, and PO2 Valdez flagged him down. They invited him to come to the police station to answer questions from their commanding officer. When he asked them what they were arresting him for, they simply replied that they wanted to ask from him the whereabouts of his neighbor, Roger Geronimo. When Catentay arrived at the station, they brought him to a room and there blindfolded, beat, and questioned him. After removing his blindfold, PO1 Riparip showed him two plastic sachets and instructed his companions, Tuluyan nyo na yan, bahala na kayo dyan. Catentay pleaded with the officers but they told him to just explain the matter to the prosecutor. Catentay maintains that the only reason the police charged him was his refusal to cooperate with them in their investigation of his neighbor. Aside from denying the charges, he questioned the legality of his arrest.[8] On October 26, 2005 the trial court rendered a decision, dismissing Criminal Case Q-04-126517 since the crime of possession charged in it was absorbed by the crime of selling dangerous drugs charged in the other case as the Court enunciated in People v. Lacerna.[9] But, finding PO3 Quimsons testimony credible and not doubtful x x x clear and forthright,[10] the trial court found Catentay guilty beyond reasonable doubt in Criminal Case Q-04-126518 of violation of Section 5, Article II of R.A. 9165 or the illegal selling of 0.03 grams of methylamphetamine hydrohloride, a dangerous drug, and sentenced him to the penalties of life imprisonment and fine of P500,000.00.[11] Upon review, the Court of Appeals (CA) rendered a decision dated January 15, 2008, affirming in full the decision of the trial court.[12] Catentay appealed to this Court, repeating the same arguments he presented before the CA.[13] The Issue Presented The issue in this case is whether or not the CA erred in finding sufficient evidence that Catentay sold prohibited drugs to a police officer in a buy-bust operation in a billiard hall. The Ruling of the Court The burden of the prosecution in a case of illegal sale of dangerous drugs is to prove (1) the identities of the buyer and the seller; (2) the sale of dangerous drugs; and (3) the existence of the corpus delicti or the illicit drug as evidence.[14] Early this year, this Court expounded on the requirement of proof of the existence of the prohibited drugs. The prosecution has to establish the integrity of the seized article in that it had been preserved from the time the same was seized from the accused to the time it was presented in evidence at the trial.[15] Here, the prosecution established through PO1 Quimsons testimony that he got the two sachets of white crystalline substances from Catentay and marked them with his initials.Since he testified that the sachets were heat-sealed and that he placed his initials on them, that would have been sufficient to ensure the integrity of the substances until they shall have reached the hands of the forensic chemist. The integrity of the seized articles would remain even if PO1 Quimson coursed their transmittal to the crime laboratory through the investigator-on-case since they had been sealed and marked. It does not matter that another person, probably a police courier would eventually deliver the sealed substances by hand to the crime laboratory. But, unfortunately, because the prosecution did not present the forensic chemist who opened the sachets and examined the substances in them, the latter was unable to attest to the fact that the substances presented in court were the same substances he found positive for shabu.

In his dissenting opinion, Justice Martin S. Villarama, Jr., points out that the stipulations among the parties at the pre-trial dispensed with the need to present the forensic chemist. The pertinent stipulations read: xxxx (2) That the said forensic chemical officer [Engr. Leonard M. Jabonillo] was the one who personally received the letter of request for laboratory examination together with the specimens subject matter of the case involving two (2) heat sealed transparent plastic sachets, each containing white crystalline substance with the following markings and recorded net weights: A(GQ)= 0.03 gram and B(GQ1)= 0.03 gram; (3) That the purpose of the examination was to determine the presence of the dangerous drugs. Thereafter, the said forensic chemical officer, Engr. Leonard M. Jabonillo conducted a qualitative examination on the specimens that gave positive results to the test for dangerous drugs; (4) That the result was reduced into writing and signed by the said forensic chemical officer, duly noted by the Chief of the Crime Laboratory; (5) That the witness will identify the document as well as the specimens he examined; and (6) That the forensic chemical officer has no personal knowledge as to the source of the specimens, subject of the case.[16] The chemistry report, said the dissenting opinion, carried with it the presumption of truth that the seized specimen contained prohibited drugs. And since the parties stipulated that the forensic chemist personally received the specimen, undoubtedly, the two plastic sachets containing shabu that were seized from Catentay were the same sachets submitted for examination and found positive for shabu. PO3 Quimson, the police officer, identified the plastic sachets in court. But, while Catentay stipulated that the forensic chemist examined the contents of the same plastic sachets that he personally received from the police, Catentay made no stipulation that the substance contained in the plastic sachets that were actually presented in court is the same substance that the forensic chemist examined and found positive for shabu. The Court is guided by its ruling in People v. Habana[17] which describes how the integrity of the substance seized from the accused might be preserved. Thus: Usually, the police officer who seizes the suspected substance turns it over to a supervising officer, who would then send it by courier to the police crime laboratory for testing. Since it is unavoidable that possession of the substance changes hand a number of times, it is imperative for the officer who seized the substance from the suspect to place his marking on its plastic container and seal the same, preferably with adhesive tape that cannot be removed without leaving a tear on the plastic container. At the trial, the officer can then identify the seized substance and the procedure he observed to preserve its integrity until it reaches the crime laboratory. If the substance is not in a plastic container, the officer should put it in one and seal the same. In this way the substance would assuredly reach the laboratory in the same condition it was seized from the accused. Further, after the laboratory technician tests and verifies the nature of the substance in the container, he should put his own mark on the plastic container and seal it again with a new seal since the police officers seal has been broken. At the trial, the technician can then describe the sealed condition of the plastic container when it was handed to him and testify on the procedure he took afterwards to preserve its integrity. If the sealing of the seized substance has not been made, the prosecution would have to present every police officer, messenger, laboratory technician, and storage personnel, the entire chain of custody, no matter how briefly ones possession has been. Each of them has to testify that the substance, although unsealed, has not been tampered with or substituted while in his care.[18]

In this case, although the plastic sachets that the forensic chemist received were heat-sealed and authenticated by the police officer with his personal markings, the forensic chemist broke the seal, opened the plastic sachet, and took out some of the substances for chemical analysis. No evidence had been adduced to show that the forensic chemist properly closed and resealed the plastic sachets with adhesive and placed his own markings on the resealed plastic to preserve the integrity of their contents until they were brought to court. Nor was any stipulation made to this effect. The plastic sachets apparently showed up at the pre-trial, not bearing the forensic chemists seal, and was brought from the crime laboratory by someone who did not care to testify how he came to be in possession of the same. The evidence did not establish the unbroken chain of custody. Given the prosecutions failure to establish the integrity of the allegedly illegal substances that the police took from Catentay and presented in court, the latters acquittal is inevitable. WHEREFORE, the Court REVERSES and SETS ASIDE the January 15, 2008 decision of the Court of Appeals in CA-G.R. CR-HC 01712 and ACQUITSthe accused-appellant Noel Catentay y Doroja alias Boy for failure of the prosecution to prove his guilt beyond reasonable doubt. He is ordered immediatelyRELEASED from detention unless he is confined for another lawful cause. SO ORDERED.

SECOND DIVISION

THE PEOPLE OF THEPHILIPPINES, Plaintiff-Appellee,

- versus -

G.R. No. 174198 Present: CARPIO, J., Chairperson, CORONA,* BRION, ABAD, and PEREZ, JJ. Promulgated: January 19, 2010

ZAIDA KAMAD y AMBING, Accused-Appellant.

x------------------------------------------------------------------------------------------------------- x DECISION BRION, J.: We review the decision[1] of the Court of Appeals[2] (CA) in CA-G.R. CR-H.C. No. 00505 which affirmed in toto the decision[3] of the Regional Trial Court (RTC), Branch 259, Paraaque City[4] in Criminal Case Nos. 02-1236-7 finding Zaida[5] Kamad y Ambing (accused-appellant) guilty beyond reasonable doubt of illegal sale of shabu under Section 5, Article II of Republic Act No. 9165 (RA 9165) or the Comprehensive Dangerous Drugs Act of 2002. Along with her boyfriend Leo Ramirez y Acosta (Leo) who was charged for illegal possession of shabu, the accused-appellant was charged under an Information[6] that reads: The above-named accused, not being lawfully authorized to possess or otherwise use any dangerous drug and without the corresponding license or prescription, did then and there willfully, unlawfully and feloniously give away, distribute and sell to a customer for P300.00 pesos one (1) small heat sealed transparent plastic sachet containing crystalline substance (shabu) weighing 0.20 gram, which when examined were found positive for Methamphetamine Hydrochloride (shabu), a dangerous drug, in violation of the above-cited law. CONTRARY TO LAW. The accused-appellant pleaded not guilty on arraignment. Trial on the merits thereafter ensued. The prosecutions version of events is summarized below. On October 16, 2002, the Philippine National Police (PNP) Drug Enforcement Unit of the Southern Police District, Fort Bonifacio, Taguig (Taguig police)received information from an asset that a certain Zaida was engaged in the illegal sale of shabu at Purok IV, Silverio Compound in Paraaque City. The Taguig police formed a buy-bust team composed of P/Insp. Antonio Parillas,[7] PO3 Christopher Maulit[8] (PO3 Maulit), PO1 Manfoste,[9] SPO2 Arthur Velasco, and SPO2 Ernesto Sanchez[10] (SPO2 Sanchez), as members. SPO2 Sanchez acted as poseur-buyer and received three (3) one hundred peso bills for use as marked money.

After surveillance of the area, the buy-bust team and their asset proceeded at around 10:00 p.m. of October 16, 2002 to the target area where they immediately saw the accused-appellant and Leo. The asset and SPO2 Sanchez approached the two while the rest of the buy-bust team watched from a distance. The asset introduced SPO2 Sanchez as a buyer of shabu and the accused-appellant asked him how much he would buy. SPO2 Sanchez asked for P300.00 worth of shabu and gave the marked money; the accused-appellant thereafter handed him a plastic sachet containing a substance suspected to be shabu. SPO2 Sanchez lighted a cigarette to give the pre-arranged signal for the buybust team to approach. SPO2 Sanchez arrested the accused-appellant and recovered from her the P300.00 marked money.The buy-bust team arrested Leo who was found in possession of one (1) plastic sachet also suspected to contain shabu. The buy-bust team took the accused-appellant and Leo and the recovered plastic sachets to their office for investigation. The recovered plastic sachets, marked as ES-1-161009 and ES-2-161002, were then brought to the PNP Crime Laboratory for qualitative examination; the tests yielded positive results for methamphetamine hydrochloride.[11] The defense expectedly presented a different version of events. The accused-appellant[12] denied the charge and claimed that she and Leo were framed-up. At around 2:30 p.m. of October 16, 2002, the accused-appellant and Leo went to Leos cousins house. Since Leos cousin was not yet at home, she and Leo waited. After waiting for an hour, four (4) men wearing civilian clothes and carrying firearms entered the house and introduced themselves as police officers. The accused-appellant and Leo were frisked, but nothing was found in their possession. The police officers asked the accused-appellant where she kept the shabu; she replied that she was not selling shabu. Afterwards, she and Leo were taken to the police headquarters where they were again frisked and asked the same question to which they gave the same response. The police detained Leo and the accused-appellant for about a day and later brought them to the Prosecutors Office for inquest without showing them any shabu. THE RTC RULING After consideration of the evidence, the RTC decreed: WHEREFORE, PREMISES CONSIDERED, finding both accused GUILTY beyond reasonable doubt, this Court hereby sentences Zaida Kamad to life imprisonment and to pay a fine of P500,000.00 for Violation of Section 5, Art. II, RA 9165 xxxx SO ORDERED.[13] The accused-appellant appealed the RTC decision to the CA, attacking the RTCs reliance on the presumption of regularity that the RTC found to have attended the conduct of the buy-bust operation by the police. She argued that no presumption of regularity could arise considering that the police violated NAPOLCOM rules by using an asset; the rules prohibit the deputation of private persons as PNP civilian agents.[14] The accused-appellant also pointed out the material inconsistencies in the testimony of the prosecution witnesses that cast doubt on their credibility, namely: (a) the uncertainty of SPO2 Sanchez regarding the time the buy-bust team was dispatched to the target area; (b) the confusion of PO3 Maulit on the identity of the team leader of the buy-bust team; (c) the admitted mistake of PO3 Maulit that only the recovered plastic sachet was marked ES (standing for the initials of SPO2 Sanchez), while the marked money was marked MF (standing for the initials of P/Insp. Mariano F. Fegarido as commanding officer); and (d) the contradictory statements of PO3 Maulit who testified that it was Leo who sold the shabu and that of SPO2 Sanchez who testified that it was the accused-appellant who sold him the shabu. THE CA RULING The CA rejected the defense arguments and affirmed in toto the RTC findings. The CA ruled that the prosecution satisfactorily established the accused-appellants guilt based on the positive testimony of SPO2 Sanchez on the conduct of the buy-bust operation; his testimony bore badges of truth. Accordingly, the CA found the accusedappellants uncorroborated denial undeserving of any weight. The CA brushed aside as a minor inconsistency the uncertainty in the testimony of SPO2 Sanchez on the time the buy-bust operation took place. The CA also brushed aside the violation of the NAPOLCOM rules on the ground that the accused-appellant was arrested in flagrante

delicto for illegal sale of shabu committed in the presence of the prosecution witnesses who were police officers. Moreover, the CA held that the use of assets to aid police officers in buy-bust operations has been judicially recognized. The CA found that while the asset brokered the shabutransaction, he had no role in the apprehension of the accused-appellant and in the search and seizure of the shabu from the accused-appellant. THE ISSUE The only issue in this case is whether the accused-appellant is guilty beyond reasonable doubt of violation of Section 5, Article II of RA 9165 for the illegal sale of 0.20 gram of shabu. THE COURTS RULING

We draw attention at the outset to the unique nature of an appeal in a criminal case; the appeal throws the whole case open for review and it is the duty of the appellate court to correct, cite and appreciate errors in the appealed judgment whether they are assigned or unassigned.[15] We find the present appeal meritorious on the basis of such review. As a general rule, the trial court's findings of fact, especially when affirmed by the CA, are entitled to great weight and will not be disturbed on appeal. This rule, however, admits of exceptions and does not apply where facts of weight and substance with direct and material bearing on the final outcome of the case have been overlooked, misapprehended or misapplied.[16] After due consideration of the records of this case, the evidence adduced, and the applicable law and jurisprudence, we hold that a deviation from the general rule is warranted. In a prosecution for illegal sale of dangerous drugs, the following elements must be duly established: (1) proof that the transaction or sale took place; and (2) the presentation in court of the corpus delicti or the illicit drug as evidence.[17] Proof of the corpus delicti in a buy-bust situation requires evidence, not only that the transacted drugs actually exist, but evidence as well that the drugs seized and examined are the same drugs presented in court. This is a condition sine qua non for conviction as the drugs are the main subject of the illegal sale constituting the crime and their existence and identification must be proven for the crime to exist. As we discuss below, the special characteristics of prohibited drugs necessitate their strict identification by the prosecution.[18] Our examination of the records shows that while the prosecution established through the testimony of SPO2 Sanchez that the sale of the prohibited drug by the accused-appellant took place, we find that both the RTC and the CA failed to consider the following infirmities in the prosecutions case: (1) the serious lapses in the RA 9165 procedure committed by the buy-bust team in handling the seized shabu; and (2) the failure of the police to comply with the chain of custody rule in handling the seized shabu, resulting in the prosecutions failure to properly identify the shabu offered in court as the same shabu seized from the accused-appellant on October 16, 2002. Non-compliance with the prescribed procedure under Section 21, Article II of RA 9165 In People v. Garcia,[19] we emphasized the prosecutions duty to adduce evidence proving compliance by the buy-bust team with the prescribed procedure laid down under paragraph 1, Section 21, Article II of RA 9165. This provision reads: 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 supplied]

The Implementing Rules and Regulations of RA 9165 under its Section 21(a) provides further details on how RA 9165 is to be applied, and provides too for a saving mechanism in case no strict compliance with the requirements took place. Section 21(a) states: (a) The apprehending office/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 officer/team, shall not render void and invalid such seizures of and custody over said items.[Emphasis supplied.] Strict compliance with the prescribed procedure is required because of the illegal drugs unique characteristic rendering it indistinct, not readily identifiable, and easily open to tampering, alteration or substitution either by accident or otherwise.[20] Hence, the rules on the measures to be observed during and after the seizure, during the custody and transfer of the drugs for examination, and at all times up to their presentation in court. In this case, SPO2 Sanchez testified on the seizure and the handling of the seized shabu. The records show that his testimony and the identification he made in court constitute the totality of the prosecutions evidence on how the police handled and preserved the integrity of the seized shabu. Significantly, SPO2 Sanchez merely stated in his testimony that: Q: What else transpired when Zaida gave something to you and you, being the poseur buyer, gave the money to Zaida? A: We brought them to our office. xxxx Q: What did you do with those plastic sachets containing white crystalline substance? A: We brought them to the SPD Crime Lab for examination.[21] Thus, he failed to provide specific details on how the seized shabu was marked although the evidence shows that the shabu was marked as ES-1-161009 before it was sent to a forensic laboratory. His testimony also failed to state whether the marking of the shabu was done immediately after its seizure (as Section 21 of RA 9165 requires) or during the investigation. His testimony likewise failed to disclose if a physical inventory and photography of the seized items had taken place, or if they had, whether these were undertaken in the presence of the accused or his counsel, or a representative from the media and the Department of Justice, and of an elective official. In sum, his testimony failed to show how the integrity and evidentiary value of the item seized had been preserved; no explanation was ever given by SPO2 Sanchez to justify the non-compliance by the buybust team with the prescribed procedures. In fact, the records clearly reveal that the prosecution did not even acknowledge the procedural lapses committed by the buy-bust team in the handling of the seized shabu. The consequences of the above omissions must necessarily be grave for the prosecution under the rule that penal laws, such as RA 9165, are strictly construed against the government and liberally in favor of the accused.[22] One consequence is to produce doubts on the origins of the illegal drug presented in court,[23] thus leading to the prosecutions failure to establish the corpus delicti.[24] Unless excused by the saving mechanism, the acquittal of the accused must follow. The non-compliance with the chain of custody rule Separately from Section 21 violations, we also find the prosecution fatally remiss in establishing an unbroken link in the chain of custody of the seized shabu;its evidence is simply incomplete in establishing the necessary links in the handling of the seized prohibited drug from the time of its seizure until its presentation in court. In Mallillin v. People,[25] we explained the chain of custody rule and what constitutes sufficient compliance with this rule:

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 witnesses' 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. [emphasis supplied][26]

We applied this ruling in People v. Garcia,[27] People v. Gum-Oyen,[28] People v. Denoman[29] and People v. Coreche[30] where we recognized the following links that must be established in the chain of custody in a buy-bust situation: first, the seizure and marking, if practicable, of the illegal drug recovered from the accused by the apprehending officer; second, the turnover of the illegal drug seized by the apprehending officer to the investigating officer; third, the turnover by the investigating officer of the illegal drug to the forensic chemist for laboratory examination; and fourth, the turnover and submission of the marked illegal drug seized from the forensic chemist to the court. (a) The first link in the chain of custody We observe that SPO2 Sanchez testimony lacks specifics on how the seized shabu was handled immediately after the accused-appellants arrest. Although the records show that SPO2 Sanchez testified that he actually seized the shabu when he arrested the accused-appellant, he never disclosed the identity of the person/s who had custody and possession of the shabu after its seizure, nor that he retained possession of the shabu from the place of the arrest until they reached the police station. SPO2 Sanchez also failed to state the time and place as well as the identity of the person/s who made the markings on the two (2) plastic sachets containing the recovered shabu seized from the accused-appellant and Leo on October 16, 2002. (b) The second link in the chain of custody We also observe that SPO2 Sanchez testimony regarding the post-arrest police investigation failed to provide particulars on whether the shabu was turned over to the investigator. The records only identify the name of the investigator as one SPO1 Nuestro before whom SPO2 Sanchez and PO3 Maulit executed a Joint Affidavit of Arrest dated October 17, 2002.[31] Thus, a big gap exists on who had custody and possession of the shabu prior to, during and immediately after the police investigation, and how the shabu was stored, preserved, labeled and recorded from the time of its seizure up to its receipt by the forensic laboratory. (c) The third link in the chain of custody The third link in the chain is represented by two (2) pieces of documentary evidence adduced by the prosecution consisting of the letter-request dated October 17, 2002[32] of Police Superintendent Mariano F. Fegarido as Chief of the Southern Police District Drug Enforcement Group and the Physical Science Report No. D-1502-02 prepared by Engr. Richard Allan B. Mangalip as the forensic chemist.[33] These documents reveal that the recovered plastic sachets of shabu bearing the markings ES-1-161002 and ES-2-161002 were sent to the forensic laboratory sealed in one (1) small brown envelope bearing unidentified signatures. On the same day, the PNP Crime Laboratory received this letter-request along with the submitted specimens. The specimens were then subjected to qualitative examination which yielded positive for methylamphetamine hydrochloride. These pieces of evidence notably fail to identify the person who personally brought the seized shabu to the PNP Crime Laboratory. They also fail to clearly identify the person who received the shabu at the forensic laboratory pursuant to the letter-request dated October 17, 2002, and who exercised custody and possession of the shabu after it was examined and before it was presented in court. Neither was there any evidence adduced showing how the seized shabu was handled, stored and safeguarded pending its presentation in court. (d) The fourth link in the chain of custody

The fourth link presents a very strange and unusual twist in the prosecutions evidence in this case. Although the forensic chemist was presented in court, we find that his offered testimony related to a shabu specimen other than that seized in the buy-bust operation of October 16, 2002. Specifically, his testimony pertained to shabu seized by the police on October 12, 2002. This is borne by the following exchanges: FISCAL UY: The testimony of the witness is being offered to prove . . . that he is the one who cause [sic] the examination of the physical evidence subject of this case containing with white crystalline substance placed inside the plastic sachet weighing 0.20 grams and 0.30 grams with markings of EBC and EBC-1 that I reduced findings after the examination conducted. xxxx Q And with the cause of the performance of your duties, were you able to receive a letter request relevant to this case specifically a drug test request, dated October 12, 2002from PS/Insp. Wilfredo Calderon. Do you have the letter request with you? A Yes, sir. Q The witness presented to this representation the letter request dated October 12, 2002 for purposes of identification, respectfully request that it be marked in evidence as Exhibit A. In this Exhibit A Mr. Officer, were you able to receive the evidence submitted specifically a small brown stapled wire envelope with signature containing with white crystalline substance inside and with markings EBC- 12/10/02 and EBC-1 12/10/02. After you received this specimen what action did you take or do? A Upon receiving, I read and understand the content of the letter request after which, I stamped and marked the letter request and then record it on the logbook and after recording it on the logbook, I performed the test for determination of the presence of dangerous drug on the specimen. xxxx Q Now, after those tests conducted what was the result of the examination? A It gives positive result for Methamphetamine Hydrochloride or otherwise known as shabu, a dangerous drug. xxxx Q At this juncture your Honor, the witness handed with this representation a brown envelope with markings D-1487-02, and the signature and the date 12 October 02, now Mr. Witness tell us who placed these markings on this brown envelope? A I am the one who personally made the markings, sir. Q And in the face of this brown envelope there is a printed name PO1 Edwin Plopinio and the signature and the date 12 October 2002. Do you know who placed who placed those markings? A I have no idea. Q At this juncture your Honor, this representation proceeded to open the brown envelope. May I respectfully request that this brown envelope be marked in evidence as Exhibit B. And inside this brown envelope are three pieces of plastic sachets inside which are white crystalline substance with markings EPC 12 October 02 and EPC-1 12 October 02. May I respectfully request that these plastic sachets with white substance inside be marked in evidence as Exhibit B-1 and B-2. And in these plastic sachets with white crystalline inside is a masking tape with the signature and letters are RAM, do you know who placed those letters? A I am the one who placed that markings sir. Q And what RAM stands for?

A That stands for my name Richard Allan Mangalip sir. Q You mentioned that you reduced your findings in writing, do you have the official finding with you? A Yes, sir. Q At this juncture the witness handed to this representation the physical science report no. D-14872 for purposes of identification respectfully request that this specimen be marked in evidence as Exhibit C. And in this Exhibit C, there is a signature above the typewritten name Engineer Richard Allan B. Mangalip, do you whose signature is this Mr. Witness? [34] [Emphasis supplied] A That is my signature sir. Q Respectfully request that the signature appearing in Exhibit C be marked in evidence as Exhibit C1. You stated earlier that you cause the weight of the white crystalline substance in this plastic sachet, what the weights of this white crystalline substance? A For the specimen A, it is .20 grams and the specimen B, it is .30 gram. Q May I respectfully request that this weight indicated in this physical science report now mark in evidence as Exhibit C-2. I have no further questions to the witness your Honor. xxxx Aside from the different dates of seizure, we note that the shabu identified and presented in court as evidence through the testimony of the forensic chemist, showed characteristics distinct from the shabu from the buy-bust sale of October 16, 2002: First, there were different markings made on the plastic sachets of the shabu recovered on October 12, 2002. As testified to, one plastic sachet of shabu was marked, EBC 12 October 02, while the other plastic sachet of shabu was marked, EBC-1 12 October 02;[35] Second, there was a different sealed brown envelope used where a printed name and signature of one PO1 Edwin Plopino and the date 12 October 2002 were written; [36] Third, the examination of the shabu by the PNP Crime Laboratory was made pursuant to a different letterrequest for examination dated October 12, 2002written by one P/Insp. Wilfredo Calderon;[37] and Fourth, the results of the shabu testified to by the forensic chemist in court was contained in a different forensic laboratory report known as Physical Science Report No. D-1487-2.[38] We highlight these characteristics because they are different from the documentary evidence the prosecution formally offered[39] consisting of the letter-request dated October 17, 2002[40] and the Physical Science Report No. D1502-02.[41] The testimonies of SPO2 Sanchez and PO3 Maulit as well as the submitted documentary evidence referred to the plastic sachets of shabu through their markings of ES-1-161002 and ES-2-161002.[42] From all these, we find it obvious that some mistake must have been made in the presentation of the prosecutions evidence. The prosecution, however, left the discrepancies fully unexplained. To reiterate, the forensic chemist testified to a specimen dated October 12, 2002, or one secured way before the buy-bust of October 16, 2002, but marked as evidence documents relating to the specimen of October 16, 2002. Strangely, even the defense disregarded the discrepancies. In his comment on the offer of evidence, the defense simply stated, among others, by way of stipulation, that the forensic chemical officer only conducted a qualitative examination of the specimen he examined and not the quantitative examination.[43] Coming immediately after the offer of evidence that mentioned the plastic sachets containing white crystalline substances with markings ES-1 16/10/02 and ES-2 16/10/02, and the Physical Science Report No. D-1502-02,[44] the defense was clearly sleeping on its feet when it reacted to the prosecutions offer of evidence. But the defense was not alone in glossing over the discrepancies between the testimony for the prosecution and the offered evidence, as both the RTC and CA also failed to notice the glaring flaws in the prosecutions evidence.

Apparently, because the parties did not point out these discrepancies while the appellate court did not closely review the records of the proceedings, the discrepancies were not taken into account in the decision now under review. These observations bring us full circle to our opening statement under the Courts ruling on the kind and extent of review that an appellate court undertakes in a criminal case; the appeal opens the whole case for review, with the appellate court charged with the duty to cite and appreciate the errors it may find in the appealed judgment, whether these errors are assigned or unassigned. This is one such instance where we are duty bound to rectify errors that, although unnoticed below and unassigned by the parties, are clearly reflected in the records of the case. The Conclusion Given the flagrant procedural lapses the police committed in handling the seized shabu and the obvious evidentiary gaps in the chain of its custody, a presumption of regularity in the performance of duties cannot be made in this case. A presumption of regularity in the performance of official duty is made in the context of an existing rule of law or statute authorizing the performance of an act or duty or prescribing a procedure in the performance thereof. The presumption applies when nothing in the record suggests that the law enforcers deviated from the standard conduct of official duty required by law; where the official act is irregular on its face, the presumption cannot arise.[45] In light of the flagrant lapses we noted, the lower courts were obviously wrong when they relied on the presumption of regularity in the performance of official duty. We rule, too, that the discrepancy in the prosecution evidence on the identity of the seized and examined shabu and that formally offered in court cannot but lead to serious doubts regarding the origins of the shabu presented in court. This discrepancy and the gap in the chain of custody immediately affect proof of thecorpus delicti without which the accused must be acquitted. From the constitutional law point of view, the prosecutions failure to establish with moral certainty all the elements of the crime and to identify the accused as the perpetrator signify that it failed to overturn the constitutional presumption of innocence that every accused enjoys in a criminal prosecution. When this happens, as in this case, the courts need not even consider the case for the defense in deciding the case; a ruling for acquittal must forthwith issue. WHEREFORE, premises considered, we hereby REVERSE and SET ASIDE the March 28, 2006 decision of the Court of Appeals in CA-G.R. CR-H.C. No. 00505 affirming the decision of conviction dated October 27, 2004 of the Regional Trial Court, Branch 259, Paraaque City in Criminal Case Nos. 02-1236-7 for illegal sale of shabu under Section 5, Article II of Republic Act No. 9165. Accused-appellant ZAIDA KAMAD y AMBING is hereby declared ACQUITTED and ordered immediately RELEASED from detention, unless she 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.

PEOPLE OF THE PHILIPPINES, Plaintiff-appellee,

G.R. No. 181747 Present:

- versus NARCISO AGULAY y LOPEZ, Accused-Appellant.

TINGA,* CHICO-NAZARIO, Acting Chairperson, VELASCO,* REYES and BRION,** JJ. Promulgated: September 26, 2008

x---------------------------------------------------x DECISION CHICO-NAZARIO, J.: For Review under Rule 45 of the Revised Rules of Court is the Decision1 dated 31 August 2007 of the Court of Appeals in CA-G.R. CR No. 01994 entitled, People of the Philippines v. Narciso Agulay y Lopez, affirming the Decision2 rendered by the Regional Trial Court (RTC) of Quezon City, Branch 103, in Criminal Case No. Q-02-111597, finding accused-appellant Narciso Agulay y Lopez guilty of illegal sale and illegal possession of methamphetamine hydrochloride more popularly known as "shabu." On 26 August 2002, accused-appellant was charged in an Information before the RTC of Quezon City with violation of Section 5, Article II of Republic Act No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002. The Information reads: That on or about the 24th day of August, 2002 in Quezon City, Philippines, the said accused, not being authorized by law to sell, dispense, deliver, transport or distribute any dangerous drug, did, then and there, willfully, and unlawfully sell, dispense, deliver, transport, distribute or act as broker in the said transaction, zero point twenty five (0.25) gram of methylamphetamine hydrochloride a dangerous drug.3 When arraigned on 23 September 2002, accused-appellant pleaded not guilty.4 Thereafter, trial ensued. During the trial, the prosecution presented the testimonies of Police Officer (PO) 2 Raul Herrera, the poseur-buyer, PO2 Reyno Riparip (member of the buy-bust team), and Forensic Analyst Leonard M. Jabonillo. The prosecution’s version of the events are narrated as follows: On 24 August 2002, at around 6:30 in the evening, an informant arrived at Police Station 5 and reported to the Chief of the Station Drug Enforcement Unit (SDEU) that a certain "Sing" had been selling shabu at Brgy. Sta. Lucia, in Novaliches, Quezon City. A police entrapment team was formed. PO2 Herrera was assigned as poseur-buyer and was given aP100.00 bill, which he marked "RH," his initials. A pre-operation report bearing control No. 24-SDEU-02 was made and signed by Police Inspector (P/Insp.) Palaleo Adag dated 24 August 2002. The buy-bust team rode in two vehicles, a Space Wagon and a Besta van, with a group of police officers inside. They stopped along J.P. Rizal St., Sta. Lucia, Novaliches, Quezon City.

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

he was allegedly involved in a hold-up incident, not with drug pushing. Accused-appellant was taken to Police Station 5. On 17 February 2006, the RTC found accused-appellant guilty of the offense charged, and meted out to him the penalty of Life Imprisonment. The dispositive portion of the RTC Decision is as follows: Accordingly, judgment is rendered finding the accused NARCISO AGULAY Y LOPEZ GUILTY beyond reasonable doubt of the crime of violation of Section 5 of R.A. 9165 as charged (for drug pushing) and he is hereby sentenced to suffer a jail term of LIFE IMPRISONMENT and to pay a fine of P500,000.00. The methylamphetamine hydrochloride (in 3 sachets) involved in this case is ordered transmitted to the PDEA thru DDB for proper disposition.8 Accused-appellant filed his Notice of Appeal with Motion to Litigate as Pauper Litigant on 7 March 2006. Accused-appellant filed his appellant’s brief9 with the Court of Appeals on 22 September 2006. On 31 August 2007, the Court of Appeals issued its Decision denying accused-appellant’s appeal as follows: WHEREFORE, finding no reversible error in the Decision appealed from, the appeal is DENIED. The Decision of the RTC dated February 17, 2006 is AFFIRMED.10 Petitioner elevated the case to this Court via Notice of Appeal 11 dated 21 September 2007. In its Resolution dated 2 April 2008, this Court resolved to: (3) Notify the parties that they may file their respective supplemental briefs, if they so desire, within thirty (30) days from notice. To avoid a repetition of the arguments, accused-appellant opted to adopt his appellant’s brief dated 22 September 2006 while plaintiff-appellee adopted its appellee’s brief dated 22 January 2007, instead of filing their respective supplemental briefs. The issues raised are the following: I. THE TRIAL COURT GRAVELY ERRED IN NOT FINDING THAT THE ACCUSED-APPELLANT WAS ILLEGALLY ARRESTED AND AS SUCH, THE SACHETS OF SHABU ALLEGEDLY RECOVERED FROM HIM ARE INADMISSIBLE IN EVIDENCE. II. THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME CHARGED. III. ACCUSED-APPELLANT CANNOT BE HELD LIABLE FOR THE CONSUMMATED CRIME OF ILLEGAL SALE OF SHABU BECAUSE OF THE FAILURE OF THE PROSECUTION TO ESTABLISH ALL OF ITS ESSENTIAL ELEMENTS. Accused-appellant maintains that his arrest was illegal, and that the subsequent seizure of shabu allegedly taken from him is inadmissible as evidence against him. He also claims that the prosecution failed to prove his guilt beyond reasonable doubt, since the prosecution failed to show all the essential elements of an illegal sale of shabu. From the foregoing issues raised by accused-appellant, the basic issue to be resolved hinges on whether accusedappellant was arrested in a legitimate "buy-bust" operation. The law presumes that an accused in a criminal prosecution is innocent until the contrary is proved. The presumption of innocence of an accused in a criminal case is a basic constitutional principle, fleshed out by procedural rules which place on the prosecution the burden of proving that an accused is guilty of the offense charged by proof beyond reasonable doubt. Whether the degree of proof has been met is largely left for the trial courts to determine. Consistent

with the rulings of this Court, it is a fundamental and settled rule that factual findings of the trial court and its calibration of the testimonies of the witnesses and its conclusions anchored on its findings are accorded by the appellate court high respect, if not conclusive effect, more so when affirmed by the Court of Appeals, as in this case. The exception is when it is established that the trial court ignored, overlooked, misconstrued or misinterpreted cogent facts and circumstances which, if considered, will change the outcome of the case. Considering that what is at stake here is the liberty of accused-appellant, we have carefully reviewed and evaluated the records of the RTC and the Court of Appeals. On evaluation of the records, this Court finds no justification to deviate from the lower court’s findings and conclusion that accused-appellant was arrested in flagrante delicto selling shabu. In order to successfully prosecute an accused for illegal sale of drugs, the prosecution must be able to prove the following elements: (1) identities of the buyer and seller, the object, and the consideration; and (2) the delivery of the thing sold and the payment therefor.12 The testimonies of the prosecution witnesses proved that all the elements of the crime have been established: that the buy-bust operation took place, and that the shabu subject of the sale was brought to and identified in court. Moreover, PO2 Herrera, the poseur-buyer, positively identified accused-appellant as the person who sold to him the sachet containing the crystalline substance which was confirmed to be shabu.13 He narrated the events which took place the night 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:

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 poseurbuyer sir. FIS. MJURADO: Aside from that what else? WITNESS: I put my markings sir. FIS. JURADO: What is that markings (sic)? WITNESS: R.H. sir. FIS. JURADO: What is the significance of this R.H.? WITNESS: That mean(sic) Raul Herrera sir.

FIS. JURADO: Do you have said money with you? WITNESS: Yes sir. FIS. JURADO: Will you please show that to this Honorable Court? WITNESS: Here sir. xxxx FIS. JURADO: After you prepared the buy bust money, what else did you do? WITNESS: We proceeded to the target location, sir. FIS. JURADO: You said "we" who were with you? WITNESS: P/Insp. Addag, Rosario, SPO1 El Valdez, SPO2 Rey Valdez, Nogoy, Riparip and the confidential informant sir. FIS. JURADO: How did you proceed to the place of Sta. Lucia? WITNESS: We rode in a tinted vehicles (sic) one space wagon and Besta van, sir. FIS. JURADO: When you arrived in that place, what happened there? WITNESS: We asked our confidential informant to look for Sing, sir. FIS. JURADO: Did the confidential informant locate the said Sing? WITNESS:

Yes sir along the street sir. FIS. JURADO: Where? WITNESS: J.P. Rizal St., Sta. Lucia, Novaliches, Quezon City, sir. FIS. JURADO: After your confidential informant found this Sing, what happened next? WITNESS: Our confidential informant asked me to go with him to see Sing to buy drug(s) sir. FIS. JURADO: Where is (sic) the transaction took (sic) place? WITNESS: Along the street sir. FIS. JURADO: What happened there? WITNESS: I was introduced by the confidential informant to Sing as buyer sir. FIS. JURADO: What happened next? WITNESS: I bought from him worth one hundred peso (sic) of shabu, sir. FIS. JURADO: What (sic) Sing do, if any? WITNESS: Sing gave me one small plastic sachet sir. FIS JURADO: After that what did you do next? WITNESS:

I executed our pre-arranged signal sir. FIS. JURADO: For whom you executed this pre-arranged signal? WITNESS: To my companions sir. FIS. JURADO: Where are (sic) your companions at that time? WITNESS: On board at (sic) Besta and Space Wagon sir. FIS. JURADO: What was the pre-arranged signal? WITNESS: I scratched my head sir. FIS. JURADO: After scratching your head, what happened next? WITNESS: My back-up rushed to our place, sir. FIS. JURADO: After that what did you do next? WITNESS: I grabbed Sing and arrested him sir. FIS. JURADO: How about the money? WITNESS: I recovered the buy bust money from Sing, sir. FIS. JURADO: You mentioned plastic sachet, I am showing to you three (3) plastic sachets, which of these three was taken or sold to you?

WITNESS: This one sir. FIS. JURADO: How did you come to know that this is the one? WITNESS: I have my initial(sic) R.H. sir. xxxx FIS. JURADO: Aside from that, what happened next? WITNESS: When I frisked Sing, I was able to recover from him two (2) more plastic sachets sir. FIS. JURADO: Where did you get that plastic sachet? WITNESS: Right side pocket sir. FIS. JURADO: Short or pant? WITNESS: Short sir. FIS. JURADO: Where are these two plastic sachets that you are mentioning? WITNESS: Here sir. FIS. JURADO: How did you come to know that these are the two plastic sachets? WITNESS: I put my markings sir RH. xxxx

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

FIS. JURADO: Did you conduct operation on that day? WITNESS: Yes sir we conducted Narcotic operation sir. FIS. JURADO: You said you conducted narcotic operation, where? WITNESS: Sta. Lucia, particularly at J.P. Rizal St., Novaliches, Quezon City, sir. FIS. JURADO: To whom this Narcotic operation conducted? WITNESS: To certain Alias Sing, sir. FIS. JURADO: Who were with you at that time? WITNESS: Valdez, Rosario, Herrera, Addag and other(sic) sir. FIS. JURADO: What was your participation in the said operation? WITNESS: I acted as back up sir. FIS. JURADO: As back up, what did you do? WITNESS: We position ourselves to a certain distance and where we can see the poseur-buyer sir. FIS. JURADO: Who was the poseur-buyer? WITNESS: Herrera sir.

FIS. JURADO: What did you see? WITNESS: The poseur buyer executed the pre-arranged signal and we rushed to his position and arrested the target person Sing sir. FIS. JURADO: When we (sic) rushed to the target place what happened next? WITNESS: Herrera frisked Sing and we brought him to the police station sir.15 Accused-appellant contends his arrest was illegal, making the sachets of shabu allegedly recovered from him inadmissible in evidence. Accused-appellant’s claim is devoid of merit for it is a well-established rule that an arrest made after an entrapment operation does not require a warrant inasmuch as it is considered a valid "warrantless arrest," in line with the provisions of Rule 113, Section 5(a) of the Revised Rules of Court, to wit: Section 5. Arrest without warrant; when lawful. – A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense. A buy-bust operation is a form of entrapment which in recent years has been accepted as a valid and effective mode of apprehending drug pushers. In a buy-bust operation, the idea to commit a crime originates from the offender, without anybody inducing or prodding him to commit the offense.16 If carried out with due regard for constitutional and legal safeguards, a buy-bust operation deserves judicial sanction.17 There are eight (8) instances when a warrantless search and seizure is valid, to wit: (1) consented searches; (2) as an incident to a lawful arrest; (3) searches of vessels and aircraft for violation of immigration, customs, and drug laws; (4) searches of moving vehicles; (5) searches of automobiles at borders or constructive borders; (6) where the prohibited articles are in "plain view;" (7) searches of buildings and premises to enforce fire, sanitary, and building regulations; and (8) "stop and frisk" operations. Considering that the legitimacy of the buy-bust operation is beyond question, the subsequent warrantless arrest and warrantless search and seizure, were permissible. The search, clearly being incident to a lawful arrest, needed no warrant for its validity. Thus, contrary to accused-appellant's contention, the contraband seized from him, having been obtained as a result of the buy-bust operation to which the defense failed to impute any irregularity, was correctly admitted in evidence. Noteworthy is the fact that prior to the dispatch of the entrapment team, a pre-operation report18 was made bearing Control No. 24-SDEU-02 dated 24 August 2005. The pre-operation report stated that an Anti-Narcotic Operation was to be conducted at Barangay Sta. Lucia in Novaliches, Quezon City, and indicated the police officers involved, including the vehicles to be used. This only bolsters the testimony of PO2 Herrera and PO1 Riparip as to the legitimacy of the buy-bust operation. The defense contends there is a clear doubt on whether the specimens examined by the chemist and eventually presented in court were the same specimens recovered from accused-appellant. The prosecution’s failure to submit in evidence the required physical inventory and photograph of the evidence confiscated pursuant to Section 21,19 Article II of Republic Act No. 9165 will not discharge accused-appellant from his crime. Non-compliance with said section is not fatal and will not render an accused’s arrest illegal or the items seized/confiscated from him inadmissible. In People v. Del Monte,20 this Court held that what is of utmost importance is the preservation of the integrity and the evidentiary value of the seized items, as the same would be utilized in the determination of the guilt

or innocence of the accused. In the instant case, we find the integrity of the drugs seized intact, and there is no doubt that the three sachets of drugs seized from accused-appellant were the same ones examined for chemical analysis, and that the crystalline substance contained therein was later on determined to be positive for methylamphetamine hydrochloride (shabu). The defense, in fact, admitted the existence and authenticity of the request for chemical analysis and the subsequent result thereof: FIS. JURADO: Chemist Engr. Jabonillo is present your honor. COURT: Any proposal for stipulation? FIS. JURADO: That there is letter request for examination of white crystalline substance marked as follows: A (pH1); B (pH2) and C (pH3)? ATTY. QUILAS: Admitted your honor. FIS. JURADO: As a result of the said qualitative examination chemist issued a chemistry report No. D-1020-2002? ATTY. QUILAS: Admitted your honor. FIS. JURADO: In view of the admission your honor, may we request that Letter request dated August 25, 2002 be marked as Exhibit ‘D’ and Chemistry Report No. D-1020-2002 as Exhibit ‘E’ your honor. COURT: Mark it. In view of the presence of the Chemist, Engr. Jabonillo, He is being called to the witness stand for cross examination of the defense counsel.21 On cross-examination by the defense, Forensic Analyst Jabonillo stated that the drugs presented in court were the same drugs examined by him and submitted to him on 25 August 2002: ATTY. QUILAS: In this particular case, you received three plastic sachets? WITNESS: Yes sir.

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

What do you mean normally, you also put the marking? WITNESS: Yes, sir. ATTY. DE GUZMAN: So everything has pre-mark? WITNESS: Yes, sir. ATTY. DE GUZMAN: And then when pre-mark specimen is submitted to you, you merely analyze the same is that correct? WITNESS: Yes, sir. ATTY. DE GUZMAN: And you do not change any marking there? WITNESS: Yes, sir. ATTY. DE GUZMAN: Now in the marking that we have it appearing that Exhibits A, B, and C are PH, am I correct? WITNESS: RH sir, not PH. ATTY. DE GUZMAN: Because it shows in the zerox (sic) copy that it is RH because of that slant. Now when this specimen was submitted to you was it three specimens submitted to you or only one specimen A, B, C were ranking to one? WITNESS: No sir, three (3) specimens.23 It is significant to note that accused-appellant stated in his demurrer to evidence that the specimens submitted for laboratory examination were not the three plastic sachets that were allegedly recovered by the poseur-buyer PO2 Raul Herrera, which may thus be construed to be an implied admission.24 Accused-appellant’s allegation that he is a victim of a frame-up, which has been held as a shop-worn defense of those accused in drug-related cases, is viewed by the Court with disfavor. Like the defense of alibi, frame-up is an allegation that can easily be concocted.25 For this claim to prosper, the defense must adduce clear and convincing evidence to overcome the presumption of regularity of official acts of government officials.26 Absent any proof of motive to falsely

accuse him of such a grave offense, the presumption of regularity in the performance of official duty and the findings of the trial court with respect to the credibility of witnesses shall prevail over that of the accused-appellant.27 Apart from his defense that he is a victim of a frame-up and extortion by the police officers, accused-appellant could not present any other viable defense. Again, while the presumption of regularity in the performance of official duty by law enforcement agents should not by itself prevail over the presumption of innocence, for the claim of frame-up to prosper, the defense must be able to present clear and convincing evidence to overcome this presumption of regularity. This, it failed to do. Bayani de Leon’s testimony that the accused was being taken as a carnapping suspect only further weakened the defense, considering it was totally out of sync with the testimony of accused-appellant vis-à-vis the positive testimonies of the police officers on the events that transpired on the night of 24 August 2002 when the buy-bust operation was conducted. It is also highly suspect and unusual that accused-appellant never mentioned that he was taken as a carnapping suspect if indeed this were the case, considering it would have been his ticket to freedom. To recall, on direct examination by the defense counsel, Bayani de Leon testified as follows: ATTY. CONCEPCION: Mr. Witness, were you able to talk to Narciso Agulay that time he was arrested? WITNESS: Yes ma’am, when Narciso Agulay was put inside a room at Station 5 and in that room, I, Riparip and Herrera entered. ATTY. CONCEPCION: What was the conversation all about? WITNESS: He was being asked if he was one of those who held up a taxi ma’am. ATTY. CONCEPCION: What was the response of Narciso Agulay? WITNESS: Narciso Agulay was crying and at the same time denying that he was with that person. When we told him that the person we arrested with the firearm was pointing to him, he said that he does not know about that incident and he does not know also that person who pointed him ma’am.28 Witness Bayani de Leon’s testimony is dubious and lacks credence. From the testimony of Bayani de Leon, it is apparent that accused-appellant would necessarily have known what he was being arrested for, which was entirely inconsistent with accused-appellant’s previous testimony. Such inconsistency further diminished the credibility of the defense witness. It would seem that Bayani de Leon’s testimony was but a mere afterthought. Moreover, Bayani de Leon testified that he allegedly came to know of the fact that accused-appellant was being charged under Republic Act No. 9165 when he (Bayani de Leon) was also detained at the city jail for robbery with homicide, testifying as follows: FIS. ARAULA: And you only knew that Narciso Agulay was charged of Section 5, R.A. 9165 when you were detained at the City Jail?

WITNESS: Yes sir. FIS. ARAULLA: In fact, you were talking with each other? WITNESS: Yes sir, and I asked what is the case filed against him. FIS. ARAULLA: And that is the time you know that Narciso Agulay was charged of (sic) Section 5? WITNESS: Yes sir.29 This Court, thus, is in agreement with the trial court in finding that: Bayani himself appears to be a shady character. By his admission he is a bata or agent of PO Vasquez. As far as the court knows, such characters are used by the police because they are underworld character (sic).30 Finally, the testimony of accused-appellant’s brother, Benjamin Agulay, is not convincing. Benjamin, being accusedappellant’s brother, we find him to be unreliable. Suffice it to say that, having been given by a relative of the accusedappellant, his testimony should be received with caution. On this premise, this Court has laid down the "objective" test in scrutinizing buy-bust operations. In People v. Doria,31 we said: We therefore stress that the "objective" test in buy-bust operations demands that the details of the purported transaction must be clearly and adequately shown. This must start from the initial contact between the poseur-buyer and the pusher, the offer to purchase, the promise or payment of the consideration until the consummation of the sale by the delivery of the illegal drug subject of the sale. The manner by which the initial contact was made, whether or not through an informant, the offer to purchase the drug, the payment of the "buy-bust" money, and the delivery of the illegal drug, whether to the informant alone or the police officer, must be the subject of strict scrutiny by courts to insure that law-abiding citizens are not unlawfully induced to commit an offense. x x x. It bears to point out that prosecutions of cases for violation of the Dangerous Drugs Act arising from buy-bust operations largely depend on the credibility of the police officers who conducted the same, and unless clear and convincing evidence is proffered showing that the members of the buy-bust team were driven by any improper motive or were not properly performing their duty, their testimonies on the operation deserve full faith and credit.32 The law presumes that an accused in a criminal prosecution is innocent until the contrary is proved.33This presumption of innocence of an accused in a criminal case is consistent with a most fundamental constitutional principle, fleshed out by procedural rules which place on the prosecution the burden of proving that an accused is guilty of the offense charged by proof beyond reasonable doubt. This constitutional guarantee is so essential that the framers of the constitution found it imperative to keep the provision from the old constitution to emphasize the primacy of rights that no person shall be held to answer for a criminal offense without due process of law.34 In his dissent, Justice Brion focused on the conviction that the buy-bust operation and the consequent seizure of the prohibited substance either did not take place or has not been proven beyond reasonable doubt because of a gap in the prosecution’s 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 dissent’s claim, the totality of the evidence would indicate that the sale of the prohibited drug had taken place, and that the sale was adequately established and the prosecution witnesses clearly identified accused-appellant as the offender. Moreover, the seized items, proven positive to be shabu, were properly identified and presented before the court. To reiterate, in prosecutions for illegal sale of regulated or prohibited drugs, conviction is proper if the following elements are present: (1) the identity of the buyer and the seller, the object, and the consideration; and (2) the delivery of the thing sold and the payment therefor. What is material is the proof that the transaction or sale actually took place, coupled with the presentation in court of the prohibited or regulated drug.35 The term corpus delicti means the actual commission by someone of the particular crime charged. The procedure for the custody and disposition of confiscated, seized and/or surrendered dangerous drugs, among others, is provided under Section 21 (a), paragraph 1 of Article II of Republic Act No. 9165, to wit: (a) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof; Section 21 (a), Article II of the Implementing Rules and Regulations of Republic Act No. 9165, which implements said provision, reads: (a) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof; Provided, further that non-compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officers/team, shall not render void and invalid such seizures of and custody over said items. The above provision further states that non-compliance with the stipulated procedure, under justifiable grounds, shall not render void and invalid such seizures of and custody over said items, for as long as the integrity and evidentiary value of the seized items are properly preserved by the apprehending officers. The evident purpose of the procedure provided for is the preservation of the integrity and evidentiary value of the seized items, as the same would be utilized in the determination of the guilt of or innocence of the accused. On the chain of custody of the seized drugs The dissent agreed with accused-appellant’s 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[36] decided by the Court, failure by the buy-bust team to comply with said section did not prevent the presumption of regularity in the performance of duty from applying. Second, even prior to the enactment of R.A. 9165, the requirements contained in Section 21(a) were already there per Dangerous Drugs Board Regulation No. 3, Series of 1979. Despite the presence of such regulation and its non-compliance by the buy-bust team, the Court still applied such presumption.37 We held: The failure of the arresting police officers to comply with said DDB Regulation No. 3, Series of 1979 is a matter strictly between the Dangerous Drugs Board and the arresting officers and is totally irrelevant to the prosecution of the

criminal case for the reason that the commission of the crime of illegal sale of a prohibited drug is considered consummated once the sale or transaction is established and the prosecution thereof is not undermined by the failure of the arresting officers to comply with the regulations of the Dangerous Drugs Board. While accused-appellant contends in his appellant’s brief that the police operatives did not submit the required inventory of the seized items pursuant to the provisions of Section 21 (a), Article II of the Implementing Rules and Regulations of Republic Act No. 9165, the records belie this claim. On cross-examination by the defense, Police Officer (PO) 2 Herrera testified on making an inventory of the seized items. PO2 Herrera testified as follows: Q: When you arrested the suspect in this case, you confiscated two (2) items from him? A: Yes sir. Q: And you said that it is part of your procedure when you confiscated items from the suspect you made an inventory of the item confiscated? A: Yes sir. Q: Did you make inventory of the confiscated items? A: Yes sir it is with the police investigator.38 Moreover, non-compliance with the procedure outlined in Section 21(a), Article II of the Implementing Rules and Regulations of Republic Act No. 9165, shall not render void and invalid such seizures of and custody over said items, for as long as the integrity and evidentiary value of the seized items are properly preserved by the apprehending officers. Consistent with this Court’s pronouncements in People v. Bano39 and in People v. Miranda,40contrary to appellant’s 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 accusedappellant. The records of the case indicate that after his arrest, accused-appellant was taken to the police station and turned over to the police investigator. PO2 Herrera testified that he personally41 made the markings "RH" (representing his initials) on the three sachets, the inventory42 of which was delivered to the police investigator. After the arrest, the seized items which had the markings "RH" alleged to contain shabu were brought to the crime laboratory for examination.43 The request for laboratory examination and transfer of the confiscated sachets to the PNP crime laboratory was prepared by another officer, PO2 Gulferic, the designated officer-on-case.44 It was signed as well by the Chief of Office/Agency (SDEU/SIIB) Police Chief Inspector Leslie Castillo Castillo. The request indicated that the seized items were delivered by PO2 Gulferic and received by Forensic Chemist Jabonillo.45 The three heat-sealed transparent plastic sachets each containing white crystalline substance were later on determined to be positive for Methylamphetamine Hydrochloride or shabu. When the prosecution presented the marked sachets in court, PO2 Herrera positively identified the plastic sachets containing shabu which he bought from accused-appellant in the buy-bust operation. The sachets containing shabu had the markings "RH" as testified by Forensic Chemist Jabonillo. PO2 Herrera positively identified in court that he put his initials "RH" on the sachets. Thus, the identity of the drugs has been duly preserved and established by the prosecution. Besides, the integrity of the evidence is presumed to be preserved unless there is a showing of bad faith, ill will, or proof that the evidence has been tampered with. The accused-appellant in this case bears the burden to make some showing that the evidence was tampered or meddled with to overcome a presumption of regularity in the handling of exhibits by public officers and a presumption that public officers properly discharged their duties.46 PO2 Herrera identified the sachets in court, and more importantly, accused-appellant had the opportunity to crossexamine 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,47 we held: After a thorough review of the records of this case, we find that the chain of custody of the seized substance was not broken and that the prosecution did not fail to identify properly the drugs seized in this case. The non-presentation of witnesses of other persons such as SPO1 Grafia, the evidence custodian, and PO3 Alamia, the officer on duty, is not a crucial point against the prosecution. The matter of presentation of witneses by the prosecution is not for the court to decide. The prosecution has the discretion as to how to present its case and it has the right to choose whom it wishes to present as witnesses. In connection with this, it must not be forgotten that entries in official records made by a public officer in the performance of his duty are prima facie evidence of the facts therein stated.48 If it is now a requirement that all persons who came into contact with the seized drugs should testify in court, what will now happen to those public officers (e.g., person who issued request for examination of drugs or those who tested the drugs) who issued documents regarding the seized drugs? Shall they be obligated to testify despite the fact the entries in the documents they issued are prima facie evidence of the facts therein stated? We do not think so. Unless there is proof to the contrary, the entries in the documents are prima facie evidence of the facts therein stated and they need not testify thereon. The dissenting opinion likewise faults the prosecution for failing to disclose the identity of the person who submitted the item that was examined. The answer to this question can easily be seen from the stamp made in the request for drug analysis. There being no question by the accused on this matter, the entry thereon made by the public officer is definitely sufficient, same being an entry in official records. On the credibility of the witnesses Prosecutions involving illegal drugs depend largely on the credibility of the police officers who conduct the "buy-bust" operation.49 In cases involving violations of the Dangerous Drugs Law, appellate courts tend to heavily rely upon the trial court in assessing the credibility of witnesses, as it had the unique opportunity, denied to the appellate courts, to observe the witnesses and to note their demeanor, conduct, and attitude under direct and cross-examination.50 This Court, not being a trier of facts itself, relies in good part on the assessment and evaluation by the trial court of the evidence, particularly the attestations of the witnesses, presented to it.51 Thus, this Court will not interfere with the trial court’s assessment of the credibility of witnesses considering there is nothing on record that shows some fact or circumstance of weight and influence which the trial court has overlooked, misappreciated, or misinterpreted. Unless compelling reasons are shown otherwise, this Court, not being a trier of facts itself, relies in good part on the assessment and evaluation by the trial court of the evidence, particularly the attestations of witnesses, presented to it. As this Court has held in a long line of cases, the trial court is in a better position to decide the question, having heard the witnesses themselves and observed their deportment and manner of testifying during the trial. Accused-appellant casts suspicion on the means or methods by which the police officers conducted the operation and claims to be the victim of a frame-up. According to accused-appellant, the trial court relied heavily on the police officers’ testimonies that what had actually transpired was a 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 52 In the case at bar, the testimonies of the prosecution witnesses are positive and convincing, sufficient to sustain the finding of the trial court and the Court of Appeals that accused-appellant’s guilt had been established beyond reasonable doubt. First, the testimony of PO2 Raul Herrera was spontaneous, straightforward and categorical. Second, PO1 Reyno Riparip, the back-up police operative of PO2 Herrera, corroborated the latter’s testimony on material points. Appellant’s defense of frame-up and self-serving assertion that he was mistakenly picked up by the police operatives for a carnapping case cannot prevail over the positive and straight-forward testimonies of the police operatives who have performed their duties regularly and in accordance with law, and have not been shown to have been inspired by any improper motive or to have improperly performed their duty.53 To reiterate, Bayani de Leon’s testimony that the accused was being taken as a carnapping suspect only further weakened the defense, considering it was totally out of sync with the testimony of accused-appellant vis-à-vis the positive testimonies of the police officers on the events that transpired on the night of 24 August 2002 when the buybust operation was conducted. The arrest of accused-appellant was made in the course of an entrapment, following a surveillance operation, normally performed by police officers in the apprehension of violators of the Dangerous Drugs Act. The Court so holds that in the absence of proof of any odious intent on the part of the police operatives to falsely impute such a serious crime, as the one imputed against accused-appellant, it will not allow their testimonies to be overcome by the self-serving claim of frame-up. Even assuming arguendo that the presumption of regularity in the performance of official duty has been overcome because of failure to comply with Section 21(a), same will not automatically lead to the exoneration of the accused. Said presumption is not the sole basis for the conviction of the accused. His conviction was based not solely on said presumption but on the documentary and real evidence, and more importantly, on the oral evidence by prosecution witnesses whom we found to be credible. It is to noted that one witness is sufficient to prove the corpus delicti – that there was a consummated sale between the poseur buyer and the accused -- there being no quantum of proof as to the number of witnesses to prove the same. In the case at bar, the selling of drugs by accused was established. The dissent likewise argues that the ponencia cannot impose on the defense the burden of proving that the police had an improper motive in charging him because of the absence of the presumption of regularity. We find this untenable. It is settled that if the testimonies of the prosecution witnesses are not impugned, full faith and credit shall be accorded them. One impugns the testimony of witness during cross-examination. Did the defense satisfactorily impugn the testimonies of the prosecution witnesses when he said that he was a victim of hulidap and that the policemen were extorting money from him? Said declaration is definitely not sufficient to impugn the testimonies of the prosecution witnesses. His mere say so that he was victimized without clear and convincing evidence to support such claim does not suffice. If what he claims was indeed committed by the policemen, he should have sued or charged them. This, he did not do. Such inaction runs counter to the normal human conduct and behavior of one who feels truly aggrieved by the act complained of.54 From the foregoing, We are fully convinced that the accused is guilty as charged. We thus hold that accused-appellant’s guilt has been established beyond reasonable doubt. This Court shall now determine the proper penalties to be imposed on him.

An examination of the Information reveals that accused-appellant was charged with the unauthorized sale and delivery of dangerous drugs consisting of twenty-five hundredths (0.25) gram of methylamphetamine hydrochloride (shabu). From the testimonies of the prosecution witnesses, only one sachet55 was sold and delivered to the poseur-buyer, PO2 Herrera. The two other sachets56were not sold or delivered, but were found by PO2 Herrera inside the right pocket of accused-appellant’s pair of shorts upon frisking, after the latter was caught in flagrante delicto during the buy-bust operation. Accused-appellant could have been charged with the possession of dangerous drugs57 on account of the second and third sachets. This was not done. He cannot then be convicted of possession of dangerous drugs, without being properly charged therewith, even if proved. Accused-appellant, however, is still guilty, as charged in the Information, of selling and delivering one sachet to the poseur-buyer. Under Republic Act No. 9165, the unauthorized sale of shabu carries with it the penalty of life imprisonment to death and a fine ranging from Five Hundred Thousand Pesos (P500,000.00) to Ten Million Pesos (P10,000,000.00). Pursuant, however, to the enactment of Republic Act No. 9346 entitled, "An Act Prohibiting the Imposition of Death Penalty in the Philippines," only life imprisonment and fine, instead of death, shall be imposed. We, therefore, find the penalty imposed by the trial court, as affirmed by the Court of Appeals – life imprisonment and a fine of P500,000.00 – to be proper. WHEREFORE, premises considered, the Court of Appeals Decision in CA-G.R. CR No. 01994 dated 31 August 2007 is AFFIRMED. SO ORDERED.

Republic of the Philippines Supreme Court Baguio City FIRST DIVISION

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

G.R. No. 186141 Present:

- versus -

JESUSA FIGUEROA y CORONADO, Accused-Appellant.

LEONARDO-DE CASTRO, Acting Chairperson, BERSAMIN, DEL CASTILLO, and VILLARAMA, JR., REYES,* JJ. Promulgated:

April 11, 2012 x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

LEONARDO-DE CASTRO, J.: This is an appeal from the Decision[1] of the Court of Appeals in CA-G.R. C.R.-H.C. No. 02348 dated October 25, 2007 affirming the conviction of accused-appellant Jesusa Figueroa in Criminal Case No. 04-2433 for violation of Section 26, Article II of Republic Act No. 9165. There were originally two Informations filed against accused-appellant: Criminal Case No. 04-2432 That on or about the 2nd day of July 2004, 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 have in her possession, direct custody and control a total weight of nine point fourty [sic] two (9.42) grams of Methylamphetamine Hydrochloride (shabu) which is a dangerous drug, in violation of the above-cited law.[2] Criminal Case No. 04-2433 That on or about the 2nd day of July 2004, in the City of Makati, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, without the corresponding license or prescription, did then and there willfully, unlawfully and feloniously attempt to sell, give away, distribute and deliver four point sixty (4.60) grams of Methylamphetamine Hydrochloride (shabu) which is a dangerous drug, by then and there agreeing to sell and deliver the said dangerous drug to the proposed buyer PO3 JOSEFINO CALLORA, thereby commencing the commission of the crime of sale of dangerous drugs, but which nevertheless failed to consummate the said sale by reason of causes other than her own spontaneous desistance, that is she got frightened by the presence of police officers at the scene of the crime.[3]

Accused-appellant pleaded not guilty to the crimes charged. Thereafter, the Regional Trial Court (RTC), Branch 64 of Makati City proceeded with the trial of the aforementioned charges. The versions of the prosecution and the defense of what transpired on July 2, 2004, as concisely summarized by the Court of Appeals, were as follows: Version of the Prosecution In the evening of June 20, 2004, an informant came to the office of P/Supt. Nelson T. Yabut (P/SUPT. YABUT), Chief of the Special Operation Unit 1 of PNP Anti-Illegal Drugs Special Operations Task Force (PNP AIDSOTF) at Camp Crame, Quezon City and informed him of the drug pushing activities of a certain Baby, later identified as accused-appellant FIGUEROA. P/SUPT. YABUT instructed PS/Insp. Pepito Garcia (PS/INSP. GARCIA), PO3 Josefino Callora (PO3 CALLORA) and PO2 Rogie Pinili (PO2 PINILI) to conduct discreet surveillance operation to verify the information. On June 23, 2004, at about 8:00 p.m., PO3 CALLORA, together with the informant, met with accused-appellant FIGUEROA at the parking area of SM Bicutan in Taguig, Metro Manila. The informant introduced PO3 CALLORA to accused-appellant FIGUEROA as the one who was willing to regularly buy shabu from her should her sample be of good quality. Accused-appellant FIGUEROA, however, told them that she had no stock of shabu at that time, but she promised to inform PO3 CALLORA through the informant once she already has supply of good quality shabu. In the morning of the following day, the Special Operation Unit 1 of the PNP AIDSOTF requested the PNP Crime Laboratory to dust with ultra-violet powder the two (2) pieces of P500.00 bills with serial numbers FG403794 and MY883243 to be used in the planned buy-bust operation against accused-appellant FIGUEROA. On July 2, 2004, at about 12:00 noon, the informant called the Desk Officer of the Special Operation Unit 1 of PNP AIDSOTF, who in turn relayed to P/SUPT. YABUT that accused-appellant FIGUEROA had informed him that she already had a stock of good quality shabu and asked how much shabu would be bought by PO3 CALLORA.P/SUPT YABUT instructed the informant to tell accused-appellant FIGUEROA that P10,000.00 worth of shabu would be bought from her. Later on the same day, the informant made another telephone call and relayed the information that accusedappellant FIGUEROA had agreed to deliver the shabu worth [P10,000.00] in front of the 7-Eleven Convenience Store at the corner of M. Almeda and M. Conception Avenues, San Joaquin, Pasig City at about 4:00 p.m. of that day. A team, composed of P/SUPT. YABUT, PS/INSP. GARCIA, PO2 PINILI and PO3 CALLORA, was then formed to conduct the buy-bust operation, with PO3 CALLORA designated as the poseurbuyer. The buy-bust money was prepared. The genuine two (2) pieces of P500.00 bills were placed on top of boodle money to make them appear asP10,000.00. At about 4:00 p.m. of July 2, 2004, the team proceeded to the agreed meeting place. PO3 CALLORA arrived in the vicinity of 7-Eleven on board a car driven by PS/INSP. GARCIA and met with the informant. PO3 CALLORA and the informant waited for accused-appellant FIGUEROA, who after a few minutes, arrived driving a Toyota Revo with Plate No. XPN 433. Seeing the two, accusedappellant FIGUEROA waived at them and drove towards them. Stopping near them, accusedappellant FIGUEROA rolled down the window of her car and asked where the money was. On the other hand, PO3 CALLORA asked for the shabu. At that juncture, accused-appellant FIGUEROA opened a Chowking plastic bag and showed a plastic sachet containing white crystalline substance. When PO3 CALLORA was about to hand over the buy-bust money to accused-appellant FIGUEROA, the latter sensed the presence of police officers in the area, so she sped away towards the direction of Kalayaan Avenue and C-5 road. The other occupants of the car were Susan Samson y Figueroa, sister-in-law of the accused, Margie Sampayan y Garbo, Fe Salceda y Resma and Christian Salceda y Resma, a nine[-]year[-]old boy. PO3 CALLORA immediately boarded the car being driven by PS/INSP. GARCIA and gave chase. PO2 PINILI, who was driving another vehicle, joined the chase. Accused-appellant FIGUEROAs vehicle was finally blocked at Kalayaan Avenue near the intersection of C-5 road. At that time, PS/INSP. GARCIA saw Christian Salceda y Resma alighted from

the backdoor of the Toyota Revo and threw the Chowking plastic bag to the pavement, which was about two steps from the backdoor. PS/INSP. GARCIA picked it up and saw a heat sealed transparent plastic sachet containing white crystalline substance inside. PO3 CALLORA and PO2 PINILI introduced themselves as police officers. The Toyota Revo was checked by PS/INSP. GARCIA and PO2 PINILI, which was witnessed by PO1 Alvarado and PO3 Basa of the Makati Police PCP No. 7, MMDA Traffic Enforcers Gonzales and Salvador and a reporter/press photographer of Manila Star named Eduardo Rosales. Retrieved under the floor matting of the Toyota Revo were two heat sealed transparent plastic sachets of undetermined quantity of white crystalline substance. Accused-appellant FIGUEROA was informed of her violation and was apprised of her constitutional rights. She was brought to the office of Special Operation Unit 1 of PNP AIDSOTF for investigation. The items recovered from the crime scene were brought to the PNP Crime Laboratory, where they were tested positive for Methylamphetamine Hydrochloride.

Version of the Defense Accused-appellant FIGUEROA denied that she met and transacted with PO3 CALLORA regarding the sale of shabu. She likewise denied knowledge of the plastic sachets of shabu that were recovered under the floor matting of the car she was driving as well as the plastic sachet of shabu inside a Chowking plastic bag found on the pavement of Kalayaan Avenue corner C-5 road. She alleged that between 1:00 and 2:00 p.m. of July 2, 2004, she was driving a Toyota Revo with Plate No. XPN 433 on her way to the house of her elder brother at Eco Center, Barangay Calsada, Taguig City to get their mothers allowance. Their mother stays with her at her residence at Better Living Subdivision, Paraaque City. With her as passengers were Susan Samson y Figueroa, Fe Salceda y Resma, and the latters nine[-]year[-]old son, Christian Salceda y Resma, and Margie Sampayan y Garbo, accused-appellant FIGUEROAs laundrywoman. They stayed at her brothers house for about twenty (20) minutes. From her brothers house, she proceeded to Tejeron, Sta. Ana, Manila to bring Susan Samson y Figueroa to the latters house. The other passengers remained in the car.Accused-appellant FIGUEROA then continued driving, taking the C-5-Kalayaan Avenue route. When she was about to proceed after the traffic light turned green at the junction of Kalayaan Avenue, a navy blue car blocked her path. P/SUPT YABUT alighted from said car and was shouting that he was a police officer while approaching accused-appellant FIGUEROA. He ordered accused-appellant FIGUEROA to roll down her car window. Accused then asked, Bakit po mister? P/SUPT YABUT reiterated that he was a police officer and ordered accused-appellant FIGUEROA to get down from her car as they would be searching the same. Accused-appellant FIGUEROA and her companions were made to stay at the sidewalk for about thirty (30) minutes. They were asked to turn their backs and were told not to do anything while the search was going on. P/SUPT. YABUT later said, Aantayin muna natin sila. For another thirty minutes, they stayed at the sidewalk until other persons referred to by P/SUPT. YABUT arrived at the scene. After the search, accused-appellant FIGUEROA and her companions were ordered to board the same Toyota Revo, which was driven to Camp Crame by one of the persons who arrived at the scene.[4] On May 18, 2006, the RTC rendered its Decision[5] acquitting accused-appellant in Criminal Case No. 042432, but convicting her in Criminal Case No. 04-2433. The dispositive portion of the Decision states: WHEREFORE, in view of the foregoing[,] judgment is rendered as follows: 1. In Criminal Case No. 04-2432[,] the accused Jesusa Figueroa y Coronado is ACQUITTED of the charge for violation of Sec. 11, Art. II RA No. 9165 for lack of evidence. The two plastic sachets of containing Methylamphetamine Hydrochloride or shabu with a combined weight of 9.42 grams are

forfeited in favor of the Government. Let the custody thereof be turned over to the Philippine Drug Enforcement Agency (PDEA) for its appropriate disposition. 2. In Criminal Case No. 04-2433, the accused Jesusa Figueroa y Coronado alias Baby is found guilty beyond reasonable doubt of the offense of violation of Sec. 26, Art. II, RA 9165 and is sentenced to suffer life imprisonment and to pay a fine of Five Hundred Thousand (P500,000.00). Let the one plastic bag labeled Chowking containing one (1) heat sealed plastic sachet with 4.60 grams of Methylamphetamine Hydrochloride be turned over to the PDEA for its appropriate disposition. The period during which the accused is detained at the City Jail of Makati shall be considered in her favor pursuant to existing rules.[6]

Alleging that the foregoing decision was contrary to law and unsupported by the evidentiary records, accusedappellant sought a review of the same with this Court through a Notice of Appeal, which the RTC gave due course. However, in accordance with our ruling in People v. Mateo,[7] we remanded the case to the Court of Appeals for intermediate review. On October 25, 2007, the Court of Appeals issued the assailed Decision affirming the conviction of accusedappellant. The dispositive portion of the Decision states: WHEREFORE, premises considered, appeal is hereby DISMISSED and the assailed Decision, dated May 18, 2006, in Criminal Case Nos. 04-2432 and 04-2433, of the Regional Trial Court of Makati City, Branch 64, is hereby AFFIRMED. Pursuant to Section 13 (c), Rule 124 of the 2000 Rules of Criminal Procedure as amended by A.M. No. 00-5-03-SC dated September 28, 2004, which became effective on October 15, 2004, this judgment of the Court of Appeals may be appealed to the Supreme Court by notice of appeal filed with the Clerk of Court of the Court of Appeals.[8] Accused-appellant appealed to this Court anew. Accused-appellant filed a Supplemental Brief,[9] wherein she highlighted the fact that the Court of Appeals did not discuss the first error assigned in her Brief with said appellate court. In the aforementioned Brief[10] with the Court of Appeals, accused-appellant submitted the following assignment of errors:

First THE TRIAL COURT ERRED IN NOT HOLDING THAT THE ALLEGED BUY-BUST OPERATION CONDUCTED BY THE SPECIAL OPERATION UNIT 1 OF THE PHILIPPINE NATIONAL POLICE ANTI-ILLEGAL DRUGS SPECIAL OPERATIONS TASK FORCE WAS IRREGULAR BECAUSE OF LACK OF PRIOR COORDINATION WITH THE PHILIPPINE DRUG ENFORCEMENT AGENCY (PDEA). Second THE TRIAL COURT SERIOUSLY ERRED IN HOLDING THAT THERE WAS A PRIOR AGREEMENT BETWEEN PO3 JOSEFINO CALLORA AND ACCUSED REGARDING THE ALLEGED SALE OF SHABU. Third THE TRIAL COURT SERIOUSLY ERRED IN GIVING WEIGHT AND CREDENCE TO THE CONFLICTING AND CONTRADICTORY TESTIMONIES OF PO3 JOSEFINO CALLORA AND P/INSP. PEPITO GARCIA THAT HAVE DIRECT BEARING ON THE ELEMENTS OF THE OFFENSE CHARGED.

Fourth THE TRIAL COURT SERIOUSLY ERRED IN FINDING ACCUSED GUILTY OF THE OFFENSE OF ATTEMPT TO SELL SHABU AS PROVIDED UNDER SECTION 26, ART. II OF R.A. 9165.[11]

Lack of Prior Coordination with the PDEA

In both the Appellants Brief with the Court of Appeals and accused-appellants Supplemental Brief before this Court, the main defense proffered by accused-appellant was the alleged violation of Section 86[12] of Republic Act No. 9165, requiring that the Philippine National Police (PNP) maintain close coordination with the Philippine Drug Enforcement Agency (PDEA) on all drug related matters. Accused-appellants contention is unmeritorious. It is settled that Section 86 of Republic Act No. 9165 does not invalidate operations on account of the the law enforcers failure to maintain close coordination with the PDEA. Thus, in People v. Berdadero,[13] the Court noted that Section 86, as well as the Internal Rules and Regulations implementing the same, is silent as to the consequences of the failure on the part of the law enforcers to seek the authority of the PDEA prior to conducting a buy-bust operation. This Court consequently held that this silence [cannot] be interpreted as a legislative intent to make an arrest without the participation of PDEA illegal or evidence obtained pursuant to such an arrest inadmissible.[14] The same conclusion was reached by this Court in People v. Roa,[15]People v. Mantalaba[16] and People v. Sabadlab.[17] Alleged lack of prior agreement between accused-appellant and PO3 Callora.

Accused-appellant argues that the alleged sale transaction borne out by the evidence of the prosecution was not between Police Officer 3 (PO3) Josefino Callora and accused-appellant Figueroa, but was instead between the latter and the unnamed informant. Accused-appellant concludes that the testimony of PO3 Callora regarding the alleged sale transaction is purely hearsay, and therefore inadmissible and without probative value, as it was the informant which is competent to testify on the alleged agreement to sell drugs.[18] We disagree. Under the doctrine of independently relevant statements, we have held that the hearsay rule does not apply where only the fact that such statements were made is relevant, and the truth or falsity thereof is immaterial.[19] In the case at bar, the testimony of PO3 Callora as regards the conversations between the informant and accused-appellant is admissible insofar as it established that said information led the police officers to prepare for and proceed with the buy-bust operation. The conversation between the informant and the accused-appellant was not necessary to prove the attempted sale of shabu, as said attempt to sell was already clear from accused-appellants actuations on July 2, 2004, which were all within the personal knowledge of PO3 Callora and testified to by him, to wit: (1) when accused-appellant arrived at the scene, she waived at the informant and PO3 Callora and approached them while driving her Toyota Revo;[20] (2) upon reaching PO3 Callora and the informant, accused-appellant asked PO3 Callora where the money was, while the latter asked for the shabu;[21] (3) accused-appellant showed PO3 Callora a Chowking plastic bag containing a sachet of white crystalline substance;[22] (4) when PO3 Callora was about to give her the money, accused-appellant sensed that there were police officers around the area, and drove away;[23] (5) PO3 Callora and the informant boarded the car of PS/Insp. Garcia, and they chased her to C-5 Road corner Kalayaan Avenue.[24] Under the Revised Penal Code, there is an attempt to commit a crime when the offender commences its commission directly by overt acts but does not perform all the acts of execution which should produce the felony by reason of some cause or accident other than his own spontaneous desistance.[25] This definition has essentially been adopted by this Court in interpreting Section 26 of Republic Act No. 9165. Thus in People v. Laylo,[26] we affirmed the conviction of the appellant therein and held that the attempt to sell shabu was shown by the overt act of appellant therein of showing the substance to the poseur-buyer. In said case, the sale was aborted when the police officers identified themselves and placed appellant under arrest.

The identity of the white crystalline substance was furthermore established by the testimony of PS/Insp. Garcia, who likewise testified as to the following matters based on his own personal knowledge: (1) after the chase, PS/Insp. Garcia saw a boy (later identified as Christian Salceda) alight from the vehicle and threw a Chowking plastic bag two to three meters from the vehicle;[27] (2) PS/Insp. Garcia picked up the Chowking plastic bag from the sidewalk ad found a sachet of shabuinside the same;[28] (3) PS/Insp. Garcia later proceeded with the other police officers to their office, where they requested for a laboratory examination of the white crystalline substance; [29] PS/Insp. Garcia identified the Chowking plastic bag and the sachet containing white crystalline substance in court. He identified the mark PEG-1 on the sachet as his initial and testified that he was the one who marked the same.[30] The prosecution presented as its Exhibit B an Initial Laboratory Report. The report states that the heat-sealed transparent plastic bag with the marking PEG-1 inside a Chowking plastic bag was found to contain 4.60 grams of white crystalline substance. The latter specimen was found positive for methylamphetamine hydrochloride.[31] In light of the foregoing testimonial and documentary evidence, which were found credible by both the trial court and the Court of Appeals, the crime of attempt to sell a dangerous drug under Section 26 of Republic Act No. 9165 was sufficiently proven beyond reasonable doubt. As for the purported inconsistencies in the testimonies of the prosecution witnesses, we agree with the pronouncement of the Court of Appeals that discrepancies referring to minor details, and not in actuality touching upon the central fact of the crime, do not impair [the witnesses] credibility[32] nor do they overcome the presumption that the arresting officers have regularly performed their official duties.[33] In sum, this Court finds no cogent reason to disturb the rulings of the lower courts in the instant case. WHEREFORE, the Petition is DENIED. The Decision of the Court of Appeals in CA-G.R. CR.-H.C. No. 02348 dated October 25, 2007 affirming the conviction of accused-appellant Jesusa Figueroa in Criminal Case No. 04-2433 for violation of Section 26, Article II of Republic Act No. 9165 is herebyAFFIRMED. SO ORDERED.

EN BANC G.R. No. 157870

November 3, 2008

SOCIAL JUSTICE SOCIETY (SJS), petitioner vs. DANGEROUS DRUGS BOARD and PHILIPPINE DRUG ENFORCEMENT AGENCY (PDEA),respondents. x-----------------------------------------------x G.R. No. 158633

November 3, 2008

ATTY. MANUEL J. LASERNA, JR., petitioner vs. DANGEROUS DRUGS BOARD and PHILIPPINE DRUG ENFORCEMENT AGENCY, respondents. x-----------------------------------------------x G.R. No. 161658

November 3, 2008

AQUILINO Q. PIMENTEL, JR., petitioner vs. COMMISSION ON ELECTIONS, respondents. DECISION VELASCO, JR., J.: In these kindred petitions, the constitutionality of Section 36 of Republic Act No. (RA) 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002, insofar as it requires mandatory drug testing of candidates for public office, students of secondary and tertiary schools, officers and employees of public and private offices, and persons charged before the prosecutor's office with certain offenses, among other personalities, is put in issue. As far as pertinent, the challenged section reads as follows: SEC. 36. Authorized Drug Testing. - Authorized drug testing shall be done by any government forensic laboratories or by any of the drug testing laboratories accredited and monitored by the DOH to safeguard the quality of the test results. x x x The drug testing shall employ, among others, two (2) testing methods, the screening test which will determine the positive result as well as the type of drug used and the confirmatory test which will confirm a positive screening test. x x x The following shall be subjected to undergo drug testing: xxxx (c) Students of secondary and tertiary schools. - Students of secondary and tertiary schools shall, pursuant to the related rules and regulations as contained in the school's student handbook and with notice to the parents, undergo a random drug testing x x x; (d) Officers and employees of public and private offices. - Officers and employees of public and private offices, whether domestic or overseas, shall be subjected to undergo a random drug test as contained in the company's work rules and regulations, x x x for purposes of reducing the risk in the workplace. Any officer or employee found positive for use of dangerous drugs shall be dealt with administratively which shall be a ground for suspension or termination, subject to the provisions of Article 282 of the Labor Code and pertinent provisions of the Civil Service Law; xxxx

(f) All persons charged before the prosecutor's office with a criminal offense having an imposable penalty of imprisonment of not less than six (6) years and one (1) day shall undergo a mandatory drug test; (g) All candidates for public office whether appointed or elected both in the national or local government shall undergo a mandatory drug test. In addition to the above stated penalties in this Section, those found to be positive for dangerous drugs use shall be subject to the provisions of Section 15 of this Act. G.R. No. 161658 (Aquilino Q. Pimentel, Jr. v. Commission on Elections) On December 23, 2003, the Commission on Elections (COMELEC) issued Resolution No. 6486, prescribing the rules and regulations on the mandatory drug testing of candidates for public office in connection with the May 10, 2004 synchronized national and local elections. The pertinent portions of the said resolution read as follows: WHEREAS, Section 36 (g) of Republic Act No. 9165 provides: SEC. 36. Authorized Drug Testing. - x x x xxxx (g) All candidates for public office x x x both in the national or local government shall undergo a mandatory drug test. WHEREAS, Section 1, Article XI of the 1987 Constitution provides that public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty and efficiency; WHEREAS, by requiring candidates to undergo mandatory drug test, the public will know the quality of candidates they are electing and they will be assured that only those who can serve with utmost responsibility, integrity, loyalty, and efficiency would be elected x x x. NOW THEREFORE, The [COMELEC], pursuant to the authority vested in it under the Constitution, Batas Pambansa Blg. 881 (Omnibus Election Code), [RA] 9165 and other election laws, RESOLVED to promulgate, as it hereby promulgates, the following rules and regulations on the conduct of mandatory drug testing to candidates for public office[:] SECTION 1. Coverage. - All candidates for public office, both national and local, in the May 10, 2004 Synchronized National and Local Elections shall undergo mandatory drug test in government forensic laboratories or any drug testing laboratories monitored and accredited by the Department of Health. SEC. 3. x x x On March 25, 2004, in addition to the drug certificates filed with their respective offices, the Comelec Offices and employees concerned shall submit to the Law Department two (2) separate lists of candidates. The first list shall consist of those candidates who complied with the mandatory drug test while the second list shall consist of those candidates who failed to comply x x x. SEC. 4. Preparation and publication of names of candidates. - Before the start of the campaign period, the [COMELEC] shall prepare two separate lists of candidates. The first list shall consist of those candidates who complied with the mandatory drug test while the second list shall consist of those candidates who failed to comply with said drug test. x x x SEC. 5. Effect of failure to undergo mandatory drug test and file drug test certificate. - No person elected to any public office shall enter upon the duties of his office until he has undergone mandatory drug test and filed with the offices enumerated under Section 2 hereof the drug test certificate herein required. (Emphasis supplied.)

Petitioner Aquilino Q. Pimentel, Jr., a senator of the Republic and a candidate for re - election in the May 10, 2004 elections,1 filed a Petition for Certiorari and Prohibition under Rule 65. In it, he seeks (1) to nullify Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 dated December 23, 2003 for being unconstitutional in that they impose a qualification for candidates for senators in addition to those already provided for in the 1987 Constitution; and (2) to enjoin the COMELEC from implementing Resolution No. 6486. Pimentel invokes as legal basis for his petition Sec. 3, Article VI of the Constitution, which states: SECTION 3. No person shall be a Senator unless he is a natural - born citizen of the Philippines, and, on the day of the election, is at least thirty - five years of age, able to read and write, a registered voter, and a resident of the Philippines for not less than two years immediately preceding the day of the election. According to Pimentel, the Constitution only prescribes a maximum of five (5) qualifications for one to be a candidate for, elected to, and be a member of the Senate. He says that both the Congress and COMELEC, by requiring, via RA 9165 and Resolution No. 6486, a senatorial aspirant, among other candidates, to undergo a mandatory drug test, create an additional qualification that all candidates for senator must first be certified as drug free. He adds that there is no provision in the Constitution authorizing the Congress or COMELEC to expand the qualification requirements of candidates for senator. G.R. No. 157870 (Social Justice Drugs Board and Philippine Drug Enforcement Agency)

Society

v.

Dangerous

In its Petition for Prohibition under Rule 65, petitioner Social Justice Society (SJS), a registered political party, seeks to prohibit the Dangerous Drugs Board (DDB) and the Philippine Drug Enforcement Agency (PDEA) from enforcing paragraphs (c), (d), (f), and (g) of Sec. 36 of RA 9165 on the ground that they are constitutionally infirm. For one, the provisions constitute undue delegation of legislative power when they give unbridled discretion to schools and employers to determine the manner of drug testing. For another, the provisions trench in the equal protection clause inasmuch as they can be used to harass a student or an employee deemed undesirable. And for a third, a person's constitutional right against unreasonable searches is also breached by said provisions. G.R. No. 158633 (Atty. Manuel Drugs Board and Philippine Drug Enforcement Agency)

J.

Laserna,

Jr.

v.

Dangerous

Petitioner Atty. Manuel J. Laserna, Jr., as citizen and taxpayer, also seeks in his Petition for Certiorari and Prohibition under Rule 65 that Sec. 36(c), (d), (f), and (g) of RA 9165 be struck down as unconstitutional for infringing on the constitutional right to privacy, the right against unreasonable search and seizure, and the right against self incrimination, and for being contrary to the due process and equal protection guarantees. The Issue on Locus Standi First off, we shall address the justiciability of the cases at bench and the matter of the standing of petitioners SJS and Laserna to sue. As respondents DDB and PDEA assert, SJS and Laserna failed to allege any incident amounting to a violation of the constitutional rights mentioned in their separate petitions.2 It is basic that the power of judicial review can only be exercised in connection with a bona fidecontroversy which involves the statute sought to be reviewed.3 But even with the presence of an actual case or controversy, the Court may refuse to exercise judicial review unless the constitutional question is brought before it by a party having the requisite standing to challenge it.4 To have standing, one must establish that he or she has suffered some actual or threatened injury as a result of the allegedly illegal conduct of the government; the injury is fairly traceable to the challenged action; and the injury is likely to be redressed by a favorable action.5 The rule on standing, however, is a matter of procedure; hence, it can be relaxed for non - traditional plaintiffs, like ordinary citizens, taxpayers, and legislators when the public interest so requires, such as when the matter is of transcendental importance, of overarching significance to society, or of paramount public interest.6 There is no doubt that Pimentel, as senator of the Philippines and candidate for the May 10, 2004 elections, possesses the requisite standing since he has substantial interests in the subject matter of the petition, among other preliminary

considerations. Regarding SJS and Laserna, this Court is wont to relax the rule on locus standi owing primarily to the transcendental importance and the paramount public interest involved in the enforcement of Sec. 36 of RA 9165. The Consolidated Issues The principal issues before us are as follows: (1) Do Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 impose an additional qualification for candidates for senator? Corollarily, can Congress enact a law prescribing qualifications for candidates for senator in addition to those laid down by the Constitution? and (2) Are paragraphs (c), (d), (f), and (g) of Sec. 36, RA 9165 unconstitutional? Specifically, do these paragraphs violate the right to privacy, the right against unreasonable searches and seizure, and the equal protection clause? Or do they constitute undue delegation of legislative power? Pimentel Petition (Constitutionality of Sec. 36[g] of RA 9165 and COMELEC Resolution No. 6486) In essence, Pimentel claims that Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 illegally impose an additional qualification on candidates for senator. He points out that, subject to the provisions on nuisance candidates, a candidate for senator needs only to meet the qualifications laid down in Sec. 3, Art. VI of the Constitution, to wit: (1) citizenship, (2) voter registration, (3) literacy, (4) age, and (5) residency. Beyond these stated qualification requirements, candidates for senator need not possess any other qualification to run for senator and be voted upon and elected as member of the Senate. The Congress cannot validly amend or otherwise modify these qualification standards, as it cannot disregard, evade, or weaken the force of a constitutional mandate,7 or alter or enlarge the Constitution. Pimentel's contention is well - taken. Accordingly, Sec. 36(g) of RA 9165 should be, as it is hereby declared as, unconstitutional. It is basic that if a law or an administrative rule violates any norm of the Constitution, that issuance is null and void and has no effect. The Constitution is the basic law to which all laws must conform; no act shall be valid if it conflicts with the Constitution.8 In the discharge of their defined functions, the three departments of government have no choice but to yield obedience to the commands of the Constitution. Whatever limits it imposes must be observed.9 Congress' inherent legislative powers, broad as they may be, are subject to certain limitations. As early as 1927, in Government v. Springer, the Court has defined, in the abstract, the limits on legislative power in the following wise: Someone has said that the powers of the legislative department of the Government, like the boundaries of the ocean, are unlimited. In constitutional governments, however, as well as governments acting under delegated authority, the powers of each of the departments x x x are limited and confined within the four walls of the constitution or the charter, and each department can only exercise such powers as are necessarily implied from the given powers. The Constitution is the shore of legislative authority against which the waves of legislative enactment may dash, but over which it cannot leap.10 Thus, legislative power remains limited in the sense that it is subject to substantive and constitutional limitations which circumscribe both the exercise of the power itself and the allowable subjects of legislation.11 The substantive constitutional limitations are chiefly found in the Bill of Rights12 and other provisions, such as Sec. 3, Art. VI of the Constitution prescribing the qualifications of candidates for senators. In the same vein, the COMELEC cannot, in the guise of enforcing and administering election laws or promulgating rules and regulations to implement Sec. 36(g), validly impose qualifications on candidates for senator in addition to what the Constitution prescribes. If Congress cannot require a candidate for senator to meet such additional qualification, the COMELEC, to be sure, is also without such power. The right of a citizen in the democratic process of election should not be defeated by unwarranted impositions of requirement not otherwise specified in the Constitution.13

Sec. 36(g) of RA 9165, as sought to be implemented by the assailed COMELEC resolution, effectively enlarges the qualification requirements enumerated in the Sec. 3, Art. VI of the Constitution. As couched, said Sec. 36(g) unmistakably requires a candidate for senator to be certified illegal - drug clean, obviously as a pre - condition to the validity of a certificate of candidacy for senator or, with like effect, a condition sine qua non to be voted upon and, if proper, be proclaimed as senator - elect. The COMELEC resolution completes the chain with the proviso that "[n]o person elected to any public office shall enter upon the duties of his office until he has undergone mandatory drug test." Viewed, therefore, in its proper context, Sec. 36(g) of RA 9165 and the implementing COMELEC Resolution add another qualification layer to what the 1987 Constitution, at the minimum, requires for membership in the Senate. Whether or not the drug - free bar set up under the challenged provision is to be hurdled before or after election is really of no moment, as getting elected would be of little value if one cannot assume office for non - compliance with the drug - testing requirement. It may of course be argued, in defense of the validity of Sec. 36(g) of RA 9165, that the provision does not expressly state that non - compliance with the drug test imposition is a disqualifying factor or would work to nullify a certificate of candidacy. This argument may be accorded plausibility if the drug test requirement is optional. But the particular section of the law, without exception, made drug - testing on those covered mandatory, necessarily suggesting that the obstinate ones shall have to suffer the adverse consequences for not adhering to the statutory command. And since the provision deals with candidates for public office, it stands to reason that the adverse consequence adverted to can only refer to and revolve around the election and the assumption of public office of the candidates. Any other construal would reduce the mandatory nature of Sec. 36(g) of RA 9165 into a pure jargon without meaning and effect whatsoever. While it is anti - climactic to state it at this juncture, COMELEC Resolution No. 6486 is no longer enforceable, for by its terms, it was intended to cover only the May 10, 2004 synchronized elections and the candidates running in that electoral event. Nonetheless, to obviate repetition, the Court deems it appropriate to review and rule, as it hereby rules, on its validity as an implementing issuance. It ought to be made abundantly clear, however, that the unconstitutionality of Sec. 36(g) of RA 9165 is rooted on its having infringed the constitutional provision defining the qualification or eligibility requirements for one aspiring to run for and serve as senator. SJS Petition (Constitutionality of Sec. 36[c], [d], [f], and [g] of RA 9165) The drug test prescribed under Sec. 36(c), (d), and (f) of RA 9165 for secondary and tertiary level students and public and private employees, while mandatory, is a random and suspicionless arrangement. The objective is to stamp out illegal drug and safeguard in the process "the well being of [the] citizenry, particularly the youth, from the harmful effects of dangerous drugs." This statutory purpose, per the policy - declaration portion of the law, can be achieved via the pursuit by the state of "an intensive and unrelenting campaign against the trafficking and use of dangerous drugs x x x through an integrated system of planning, implementation and enforcement of anti - drug abuse policies, programs and projects."14 The primary legislative intent is not criminal prosecution, as those found positive for illegal drug use as a result of this random testing are not necessarily treated as criminals. They may even be exempt from criminal liability should the illegal drug user consent to undergo rehabilitation. Secs. 54 and 55 of RA 9165 are clear on this point: Sec. 54. Voluntary Submission of a Drug Dependent to Confinement, Treatment and Rehabilitation. - A drug dependent or any person who violates Section 15 of this Act may, by himself/herself or through his/her parent, [close relatives] x x x apply to the Board x x x for treatment and rehabilitation of the drug dependency. Upon such application, the Board shall bring forth the matter to the Court which shall order that the applicant be examined for drug dependency. If the examination x x x results in the certification that the applicant is a drug dependent, he/she shall be ordered by the Court to undergo treatment and rehabilitation in a Center designated by the Board x x x. xxxx Sec. 55. Exemption from the Criminal Liability Under the Voluntary Submission Program. - A drug dependent under the voluntary submission program, who is finally discharged from confinement, shall be exempt from the criminal liability under Section 15 of this Act subject to the following conditions:

xxxx School children, the US Supreme Court noted, are most vulnerable to the physical, psychological, and addictive effects of drugs. Maturing nervous systems of the young are more critically impaired by intoxicants and are more inclined to drug dependency. Their recovery is also at a depressingly low rate.15 The right to privacy has been accorded recognition in this jurisdiction as a facet of the right protected by the guarantee against unreasonable search and seizure16 under Sec. 2, Art. III17 of the Constitution. But while the right to privacy has long come into its own, this case appears to be the first time that the validity of a state - decreed search or intrusion through the medium of mandatory random drug testing among students and employees is, in this jurisdiction, made the focal point. Thus, the issue tendered in these proceedings is veritably one of first impression. US jurisprudence is, however, a rich source of persuasive jurisprudence. With respect to random drug testing among school children, we turn to the teachings of Vernonia School District 47J v. Acton (Vernonia) and Board of Education of Independent School District No. 92 of Pottawatomie County, et al. v. Earls, et al. (Board of Education),18 both fairly pertinent US Supreme Court - decided cases involving the constitutionality of governmental search. In Vernonia, school administrators in Vernonia, Oregon wanted to address the drug menace in their respective institutions following the discovery of frequent drug use by school athletes. After consultation with the parents, they required random urinalysis drug testing for the school's athletes. James Acton, a high school student, was denied participation in the football program after he refused to undertake the urinalysis drug testing. Acton forthwith sued, claiming that the school's drug testing policy violated, inter alia, the Fourth Amendment19 of the US Constitution. The US Supreme Court, in fashioning a solution to the issues raised in Vernonia, considered the following: (1) schools stand in loco parentis over their students; (2) school children, while not shedding their constitutional rights at the school gate, have less privacy rights; (3) athletes have less privacy rights than non - athletes since the former observe communal undress before and after sports events; (4) by joining the sports activity, the athletes voluntarily subjected themselves to a higher degree of school supervision and regulation; (5) requiring urine samples does not invade a student's privacy since a student need not undress for this kind of drug testing; and (6) there is need for the drug testing because of the dangerous effects of illegal drugs on the young. The US Supreme Court held that the policy constituted reasonable search under the Fourth20 and 14th Amendments and declared the random drug - testing policy constitutional. In Board of Education, the Board of Education of a school in Tecumseh, Oklahoma required a drug test for high school students desiring to join extra - curricular activities. Lindsay Earls, a member of the show choir, marching band, and academic team declined to undergo a drug test and averred that the drug - testing policy made to apply to non athletes violated the Fourth and 14th Amendments. As Earls argued, unlike athletes who routinely undergo physical examinations and undress before their peers in locker rooms, non - athletes are entitled to more privacy. The US Supreme Court, citing Vernonia, upheld the constitutionality of drug testing even among non - athletes on the basis of the school's custodial responsibility and authority. In so ruling, said court made no distinction between a non - athlete and an athlete. It ratiocinated that schools and teachers act in place of the parents with a similar interest and duty of safeguarding the health of the students. And in holding that the school could implement its random drug testing policy, the Court hinted that such a test was a kind of search in which even a reasonable parent might need to engage. In sum, what can reasonably be deduced from the above two cases and applied to this jurisdiction are: (1) schools and their administrators stand in loco parentis with respect to their students; (2) minor students have contextually fewer rights than an adult, and are subject to the custody and supervision of their parents, guardians, and schools; (3) schools, acting in loco parentis, have a duty to safeguard the health and well - being of their students and may adopt such measures as may reasonably be necessary to discharge such duty; and (4) schools have the right to impose conditions on applicants for admission that are fair, just, and non-discriminatory. Guided by Vernonia and Board of Education, the Court is of the view and so holds that the provisions of RA 9165 requiring mandatory, random, and suspicionless drug testing of students are constitutional. Indeed, it is within the prerogative of educational institutions to require, as a condition for admission, compliance with reasonable school rules and regulations and policies. To be sure, the right to enroll is not absolute; it is subject to fair, reasonable, and equitable requirements.

The Court can take judicial notice of the proliferation of prohibited drugs in the country that threatens the well - being of the people,21 particularly the youth and school children who usually end up as victims. Accordingly, and until a more effective method is conceptualized and put in motion, a random drug testing of students in secondary and tertiary schools is not only acceptable but may even be necessary if the safety and interest of the student population, doubtless a legitimate concern of the government, are to be promoted and protected. To borrow from Vernonia, "[d]eterring drug use by our Nation's schoolchildren is as important as enhancing efficient enforcement of the Nation's laws against the importation of drugs"; the necessity for the State to act is magnified by the fact that the effects of a drug - infested school are visited not just upon the users, but upon the entire student body and faculty.22 Needless to stress, the random testing scheme provided under the law argues against the idea that the testing aims to incriminate unsuspecting individual students. Just as in the case of secondary and tertiary level students, the mandatory but random drug test prescribed by Sec. 36 of RA 9165 for officers and employees of public and private offices is justifiable, albeit not exactly for the same reason. The Court notes in this regard that petitioner SJS, other than saying that "subjecting almost everybody to drug testing, without probable cause, is unreasonable, an unwarranted intrusion of the individual right to privacy," 23 has failed to show how the mandatory, random, and suspicionless drug testing under Sec. 36(c) and (d) of RA 9165 violates the right to privacy and constitutes unlawful and/or unconsented search under Art. III, Secs. 1 and 2 of the Constitution.24 Petitioner Laserna's lament is just as simplistic, sweeping, and gratuitous and does not merit serious consideration. Consider what he wrote without elaboration: The US Supreme Court and US Circuit Courts of Appeals have made various rulings on the constitutionality of mandatory drug tests in the school and the workplaces. The US courts have been consistent in their rulings that the mandatory drug tests violate a citizen's constitutional right to privacy and right against unreasonable search and seizure. They are quoted extensively hereinbelow.25 The essence of privacy is the right to be left alone.26 In context, the right to privacy means the right to be free from unwarranted exploitation of one's person or from intrusion into one's private activities in such a way as to cause humiliation to a person's ordinary sensibilities. 27 And while there has been general agreement as to the basic function of the guarantee against unwarranted search, "translation of the abstract prohibition against ‘unreasonable searches and seizures' into workable broad guidelines for the decision of particular cases is a difficult task," to borrow from C. Camara v. Municipal Court.28 Authorities are agreed though that the right to privacy yields to certain paramount rights of the public and defers to the state's exercise of police power.29 As the warrantless clause of Sec. 2, Art III of the Constitution is couched and as has been held, "reasonableness" is the touchstone of the validity of a government search or intrusion.30 And whether a search at issue hews to the reasonableness standard is judged by the balancing of the government - mandated intrusion on the individual's privacy interest against the promotion of some compelling state interest.31 In the criminal context, reasonableness requires showing of probable cause to be personally determined by a judge. Given that the drug - testing policy for employees-and students for that matter--under RA 9165 is in the nature of administrative search needing what was referred to inVernonia as "swift and informal disciplinary procedures," the probable - cause standard is not required or even practicable. Be that as it may, the review should focus on the reasonableness of the challenged administrative search in question. The first factor to consider in the matter of reasonableness is the nature of the privacy interest upon which the drug testing, which effects a search within the meaning of Sec. 2, Art. III of the Constitution, intrudes. In this case, the office or workplace serves as the backdrop for the analysis of the privacy expectation of the employees and the reasonableness of drug testing requirement. The employees' privacy interest in an office is to a large extent circumscribed by the company's work policies, the collective bargaining agreement, if any, entered into by management and the bargaining unit, and the inherent right of the employer to maintain discipline and efficiency in the workplace. Their privacy expectation in a regulated office environment is, in fine, reduced; and a degree of impingement upon such privacy has been upheld. Just as defining as the first factor is the character of the intrusion authorized by the challenged law. Reduced to a question form, is the scope of the search or intrusion clearly set forth, or, as formulated in Ople v. Torres, is the enabling law authorizing a search "narrowly drawn" or "narrowly focused"?32 The poser should be answered in the affirmative. For one, Sec. 36 of RA 9165 and its implementing rules and regulations (IRR), as couched, contain provisions specifically directed towards preventing a situation that would unduly

embarrass the employees or place them under a humiliating experience. While every officer and employee in a private establishment is under the law deemed forewarned that he or she may be a possible subject of a drug test, nobody is really singled out in advance for drug testing. The goal is to discourage drug use by not telling in advance anyone when and who is to be tested. And as may be observed, Sec. 36(d) of RA 9165 itself prescribes what, in Ople, is a narrowing ingredient by providing that the employees concerned shall be subjected to "random drug test as contained in the company's work rules and regulations x x x for purposes of reducing the risk in the work place." For another, the random drug testing shall be undertaken under conditions calculated to protect as much as possible the employee's privacy and dignity. As to the mechanics of the test, the law specifies that the procedure shall employ two testing methods, i.e., the screening test and the confirmatory test, doubtless to ensure as much as possible the trustworthiness of the results. But the more important consideration lies in the fact that the test shall be conducted by trained professionals in access - controlled laboratories monitored by the Department of Health (DOH) to safeguard against results tampering and to ensure an accurate chain of custody.33 In addition, the IRR issued by the DOH provides that access to the drug results shall be on the "need to know" basis;34 that the "drug test result and the records shall be [kept] confidential subject to the usual accepted practices to protect the confidentiality of the test results."35 Notably, RA 9165 does not oblige the employer concerned to report to the prosecuting agencies any information or evidence relating to the violation of the Comprehensive Dangerous Drugs Act received as a result of the operation of the drug testing. All told, therefore, the intrusion into the employees' privacy, under RA 9165, is accompanied by proper safeguards, particularly against embarrassing leakages of test results, and is relatively minimal. To reiterate, RA 9165 was enacted as a measure to stamp out illegal drug in the country and thus protect the well being of the citizens, especially the youth, from the deleterious effects of dangerous drugs. The law intends to achieve this through the medium, among others, of promoting and resolutely pursuing a national drug abuse policy in the workplace via a mandatory random drug test.36 To the Court, the need for drug testing to at least minimize illegal drug use is substantial enough to override the individual's privacy interest under the premises. The Court can consider that the illegal drug menace cuts across gender, age group, and social - economic lines. And it may not be amiss to state that the sale, manufacture, or trafficking of illegal drugs, with their ready market, would be an investor's dream were it not for the illegal and immoral components of any of such activities. The drug problem has hardly abated since the martial law public execution of a notorious drug trafficker. The state can no longer assume a laid back stance with respect to this modern - day scourge. Drug enforcement agencies perceive a mandatory random drug test to be an effective way of preventing and deterring drug use among employees in private offices, the threat of detection by random testing being higher than other modes. The Court holds that the chosen method is a reasonable and enough means to lick the problem. Taking into account the foregoing factors, i.e., the reduced expectation of privacy on the part of the employees, the compelling state concern likely to be met by the search, and the well - defined limits set forth in the law to properly guide authorities in the conduct of the random testing, we hold that the challenged drug test requirement is, under the limited context of the case, reasonable and, ergo, constitutional. Like their counterparts in the private sector, government officials and employees also labor under reasonable supervision and restrictions imposed by the Civil Service law and other laws on public officers, all enacted to promote a high standard of ethics in the public service.37 And if RA 9165 passes the norm of reasonableness for private employees, the more reason that it should pass the test for civil servants, who, by constitutional command, are required to be accountable at all times to the people and to serve them with utmost responsibility and efficiency.38 Petitioner SJS' next posture that Sec. 36 of RA 9165 is objectionable on the ground of undue delegation of power hardly commends itself for concurrence. Contrary to its position, the provision in question is not so extensively drawn as to give unbridled options to schools and employers to determine the manner of drug testing. Sec. 36 expressly provides how drug testing for students of secondary and tertiary schools and officers/employees of public/private offices should be conducted. It enumerates the persons who shall undergo drug testing. In the case of students, the testing shall be in accordance with the school rules as contained in the student handbook and with notice to parents. On the part of officers/employees, the testing shall take into account the company's work rules. In either case, the random procedure shall be observed, meaning that the persons to be subjected to drug test shall be picked by chance or in an unplanned way. And in all cases, safeguards against misusing and compromising the confidentiality of the test results are established.

Lest it be overlooked, Sec. 94 of RA 9165 charges the DDB to issue, in consultation with the DOH, Department of the Interior and Local Government, Department of Education, and Department of Labor and Employment, among other agencies, the IRR necessary to enforce the law. In net effect then, the participation of schools and offices in the drug testing scheme shall always be subject to the IRR of RA 9165. It is, therefore, incorrect to say that schools and employers have unchecked discretion to determine how often, under what conditions, and where the drug tests shall be conducted. The validity of delegating legislative power is now a quiet area in the constitutional landscape.39 In the face of the increasing complexity of the task of the government and the increasing inability of the legislature to cope directly with the many problems demanding its attention, resort to delegation of power, or entrusting to administrative agencies the power of subordinate legislation, has become imperative, as here. Laserna Petition [f], and [g] of RA 9165)

(Constitutionality

of

Sec.

36[c],

[d],

Unlike the situation covered by Sec. 36(c) and (d) of RA 9165, the Court finds no valid justification for mandatory drug testing for persons accused of crimes. In the case of students, the constitutional viability of the mandatory, random, and suspicionless drug testing for students emanates primarily from the waiver by the students of their right to privacy when they seek entry to the school, and from their voluntarily submitting their persons to the parental authority of school authorities. In the case of private and public employees, the constitutional soundness of the mandatory, random, and suspicionless drug testing proceeds from the reasonableness of the drug test policy and requirement. We find the situation entirely different in the case of persons charged before the public prosecutor's office with criminal offenses punishable with six (6) years and one (1) day imprisonment. The operative concepts in the mandatory drug testing are "randomness" and "suspicionless." In the case of persons charged with a crime before the prosecutor's office, a mandatory drug testing can never be random or suspicionless. The ideas of randomness and being suspicionless are antithetical to their being made defendants in a criminal complaint. They are not randomly picked; neither are they beyond suspicion. When persons suspected of committing a crime are charged, they are singled out and are impleaded against their will. The persons thus charged, by the bare fact of being haled before the prosecutor's office and peaceably submitting themselves to drug testing, if that be the case, do not necessarily consent to the procedure, let alone waive their right to privacy.40 To impose mandatory drug testing on the accused is a blatant attempt to harness a medical test as a tool for criminal prosecution, contrary to the stated objectives of RA 9165. Drug testing in this case would violate a persons' right to privacy guaranteed under Sec. 2, Art. III of the Constitution. Worse still, the accused persons are veritably forced to incriminate themselves. WHEREFORE, the Court resolves to GRANT the petition in G.R. No. 161658 and declares Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 as UNCONSTITUTIONAL; and toPARTIALLY GRANT the petition in G.R. Nos. 157870 and 158633 by declaring Sec. 36(c) and (d) ofRA 9165 CONSTITUTIONAL, but declaring its Sec. 36(f) UNCONSTITUTIONAL. All concerned agencies are, accordingly, permanently enjoined from implementing Sec. 36(f) and (g) of RA 9165. No costs. SO ORDERED.

SECOND DIVISION

MICHAEL PADUA, Petitioner,

G.R. No. 168546 Present: QUISUMBING, J., Chairperson, CARPIO MORALES, TINGA, VELASCO, JR., and BRION, JJ.

- versus -

PEOPLE OF THE PHILIPPINES, Respondent.

Promulgated: July 23, 2008

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x DECISION QUISUMBING, J.:

This petition for review assails the Decision[1] dated April 19, 2005 and Resolution[2] dated June 14, 2005, of the Court of Appeals in CA-G.R. SP No. 86977 which had respectively dismissed Michael Paduas petition for certiorari and denied his motion for reconsideration. Paduas petition for certiorari before the Court of Appeals assailed the Orders dated May 11, 2004[3] and July 28, 2004[4] of the Regional Trial Court (RTC), Branch 168, Pasig City, which had denied his petition for probation. The facts, culled from the records, are as follows: On June 16, 2003, petitioner Michael Padua and Edgar Allan Ubalde were charged before the RTC, Branch 168, Pasig City of violating Section 5,[5] Article II of Republic Act No. 9165,[6] otherwise known as the Comprehensive Dangerous Drugs Act of 2002, for selling dangerous drugs.[7] The Information reads: The Prosecution, through the undersigned Public Prosecutor, charges Edgar Allan Ubalde y Velchez a.k.a. Allan and Michael Padua y Tordel a.k.a. Mike, with the crime of violation of Sec. 5, Art. II, Republic Act No. 9165 in relation to R.A. [No.] 8369, Sec. 5 par. (a) and (i), committed as follows: On or about June 6, 2003, in Pasig City, and within the jurisdiction of this Honorable Court, the accused, Edgar Allan Ubalde y Velchez and Michael Padua y Tordel, a minor, seventeen (17) years old, conspiring and confederating together and both of them mutually helping and aiding one another, not being lawfully authorized to sell any dangerous drug, did then and there willfully, unlawfully and feloniously sell, deliver and give away to PO1 Roland A. Panis, a police poseur-buyer, one (1) folded newsprint containing 4.86 grams of dried marijuana fruiting tops, which was found positive to the tests for marijuana, a dangerous drug, in violation of the said law. Contrary to law.[8] When arraigned on October 13, 2003, Padua, assisted by his counsel de oficio, entered a plea of not guilty.[9] During the pre-trial conference on February 2, 2004, however, Paduas counsel manifested that his client was willing to withdraw his plea of not guilty and enter a plea of guilty to avail of the benefits granted to first-time offenders

under Section 70[10] of Rep. Act No. 9165. The prosecutor interposed no objection.[11] Thus, the RTC on the same date issued an Order[12] stating that the former plea of Padua of not guilty was considered withdrawn. Padua was re-arraigned and pleaded guilty.Hence, in a Decision[13] dated February 6, 2004, the RTC found Padua guilty of the crime charged: In view of the foregoing, the Court finds accused Michael Padua y Tordel guilty of [v]iolation of Sec. 5 Art. II of R.A. No. 9165 in relation to R.A. No. 8369 Sec. 5 par. (a) and (i) thereof, and therefore, sentences him to suffer an indeterminate sentence of six (6) years and one (1) day of Prision Mayor as minimum to seventeen (17) years and four (4) months of reclusion temporal as maximum and a fine of Five Hundred Thousand Pesos (P500,000.00). No subsidiary imprisonment, however, shall be imposed should [the] accused fail to pay the fine pursuant to Art. 39 par. 3 of the Revised Penal Code. SO ORDERED.[14] Padua subsequently filed a Petition for Probation[15] dated February 10, 2004 alleging that he is a minor and a first-time offender who desires to avail of the benefits of probation under Presidential Decree No. 968[16] (P.D. No. 968), otherwise known as The Probation Law of 1976 and Section 70 of Rep. Act No. 9165. He further alleged that he possesses all the qualifications and none of the disqualifications under the said laws. The RTC in an Order[17] dated February 10, 2004 directed the Probation Officer of Pasig City to conduct a Post-Sentence Investigation and submit a report and recommendation within 60 days from receipt of the order. The City Prosecutor was also directed to submit his comment on the said petition within five days from receipt of the order. On April 6, 2004, Chief Probation and Parole Officer Josefina J. Pasana submitted a Post-Sentence Investigation Report to the RTC recommending that Paduabe placed on probation.[18] However, on May 11, 2004, public respondent Pairing Judge Agnes Reyes-Carpio issued an Order denying the Petition for Probation on the ground that under Section 24[19] of Rep. Act No. 9165, any person convicted of drug trafficking cannot avail of the privilege granted by the Probation Law. The court ruled thus: Before this Court now is the Post-Sentence Investigation Report (PSIR) on minor Michael Padua y Tordel prepared by Senior Parole and Probation Officer Teodoro Villaverde and submitted by the Chief of the Pasig City Parole and Probation Office, Josefina J. Pasana. In the aforesaid PSIR, Senior PPO Teodoro Villaverde recommended that minor Michael Padua y Tordel be placed on probation, anchoring his recommendation on Articles 189 and 192 of P.D. 603, otherwise known as the Child and Welfare Code, as amended, which deal with the suspension of sentence and commitment of youthful offender.Such articles, therefore, do not find application in this case, the matter before the Court being an application for probation by minor Michael Padua y Tordel and not the suspension of his sentence. On the other hand, Section 70 is under Article VIII of R.A. 9165 which deals with the Program for Treatment and Rehabilitation of Drug Dependents. Sections 54 to 76, all under Article VIII of R.A. 9165 specifically refer to violations of either Section 15 or Section 11. Nowhere in Article VIII was [v]iolation of Section 5 ever mentioned. More importantly, while the provisions of R.A. 9165, particularly Section 70 thereof deals with Probation or Community Service for First- Time Minor Offender in Lieu of Imprisonment, the Court is of the view and so holds that minor Michael Padua y Tordel who was charged and convicted of violating Section 5, Article II, R.A. 9165, cannot avail of probation under said section in view of the provision of Section 24 which is hereunder quoted: Sec. 24. Non-Applicability of the Probation Law for Drug Traffickers and Pushers. Any person convicted for drug trafficking or pushing under this Act, regardless of the penalty imposed by the Court, cannot avail of the privilege granted

by the Probation Law or Presidential Decree No. 968, as amended. (underlining supplied) WHEREFORE, premises considered, the Petition for Probation filed by Michael Padua y Tord[e]l should be, as it is hereby DENIED. SO ORDERED.[20] Padua filed a motion for reconsideration of the order but the same was denied on July 28, 2004. He filed a petition for certiorari under Rule 65 with the Court of Appeals assailing the order, but the Court of Appeals, in a Decision dated April 19, 2005, dismissed his petition. The dispositive portion of the decision reads: WHEREFORE, in view of the foregoing, the petition is hereby DENIED for lack of merit and ordered DISMISSED. SO ORDERED.[21] Padua filed a motion for reconsideration of the Court of Appeals decision but it was denied. Hence, this petition where he raises the following issues: I. WHETHER OR NOT THE COURT OF APPEALS ERRED IN AFFIRMING THE DENIAL OF THE PETITION FOR PROBATION WHICH DEPRIVED PETITIONERSRIGHT AS A MINOR UNDER ADMINISTRATIVE ORDER NO. [02-1-18-SC] OTHERWISE KNOWN AS [THE] RULE ON JUVENILES IN CONFLICT WITH THE LAW. II. WHETHER OR NOT [THE] ACCUSED[S] RIGHT [TO BE RELEASED UNDER RECOGNIZANCE] HAS BEEN VIOLATED OR DEPRIVED IN THE LIGHT OF R.A. 9344 OTHERWISE KNOWN AS AN ACT ESTABLISHING A COMPREHENSIVE JUVENILE JUSTICE AND WELFARE SYSTEM, CREATING THE JUVENILE JUSTICE AND WELFARE COUNCIL UNDER DEPARTMENT OF JUSTICE APPROPRIATING FUNDS THEREFOR AND OTHER PURPOSES.[22] The Office of the Solicitor General (OSG), representing public respondent, opted to adopt its Comment[23] as its Memorandum. In its Comment, the OSG countered that I. THE TRIAL COURT AND THE COURT OF APPEALS HAVE LEGAL BASIS IN APPLYING SECTION 24, ARTICLE II OF R.A. 9165 INSTEAD OF SECTION 70, ARTICLE VIII OF THE SAME LAW. II. SECTION 32 OF A.M. NO. 02-1-18-SC OTHERWISE KNOWN AS THE RULE ON JUVENILES IN CONFLICT WITH THE LAW HAS NO APPLICATION TO THE INSTANT CASE.[24] Simply, the issues are: (1) Did the Court of Appeals err in dismissing Paduas petition for certiorari assailing the trial courts order denying his petition for probation? (2) Was Paduas right under Rep. Act No. 9344,[25] the Juvenile Justice and Welfare Act of 2006, violated? and (3) Does Section 32[26] of A.M. No. 02-1-18-SC otherwise known as the Rule on Juveniles in Conflict with the Law have application in this case? As to the first issue, we rule that the Court of Appeals did not err in dismissing Paduas petition for certiorari.

For certiorari to prosper, the following requisites must concur: (1) the writ is directed against a tribunal, a board or any officer exercising judicial or quasi-judicial functions; (2) such tribunal, board or officer has acted without or in excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction; and (3) there is no appeal or any plain, speedy and adequate remedy in the ordinary course of law.[27] Without jurisdiction means that the court acted with absolute lack of authority. There is excess of jurisdiction when the court transcends its power or acts without any statutory authority. Grave abuse of discretion implies such capricious and whimsical exercise of judgment as to be equivalent to lack or excess of jurisdiction. In other words, power is exercised in an arbitrary or despotic manner by reason of passion, prejudice, or personal hostility, and such exercise is so patent or so gross as to amount to an evasion of a positive duty or to a virtual refusal either to perform the duty enjoined or to act at all in contemplation of law.[28] A review of the orders of the RTC denying Paduas petition for probation shows that the RTC neither acted without jurisdiction nor with grave abuse of discretion because it merely applied the law and adhered to principles of statutory construction in denying Paduas petition for probation. Padua was charged and convicted for violation of Section 5, Article II of Rep. Act No. 9165 for selling dangerous drugs. It is clear under Section 24 of Rep. Act No. 9165 that any person convicted of drug trafficking cannot avail of the privilege of probation, to wit: SEC. 24. Non-Applicability of the Probation Law for Drug Traffickers and Pushers. Any person convicted for drug trafficking or pushing under this Act, regardless of the penalty imposed by the Court, cannot avail of the privilege granted by the Probation Law or Presidential Decree No. 968, as amended. (Emphasis supplied.) The law is clear and leaves no room for interpretation. Any person convicted for drug trafficking or pushing, regardless of the penalty imposed, cannot avail of the privilege granted by the Probation Law or P.D. No. 968. The elementary rule in statutory construction is that when the words and phrases of the statute are clear and unequivocal, their meaning must be determined from the language employed and the statute must be taken to mean exactly what it says.[29] If a statute is clear, plain and free from ambiguity, it must be given its literal meaning and applied without attempted interpretation. This is what is known as the plain-meaning rule orverba legis. It is expressed in the maxim, index animi sermo, or speech is the index of intention.[30] Furthermore, there is the maxim verba legis non est recedendum, or from the words of a statute there should be no departure.[31] Moreover, the Court of Appeals correctly pointed out that the intention of the legislators in Section 24 of Rep. Act No. 9165 is to provide stiffer and harsher punishment for those persons convicted of drug trafficking or pushing while extending a sympathetic and magnanimous hand in Section 70 to drug dependents who are found guilty of violation of Sections 11[32] and 15[33] of the Act. The law considers the users and possessors of illegal drugs as victims while the drug traffickers and pushers as predators. Hence, while drug traffickers and pushers, like Padua, are categorically disqualified from availing the law on probation, youthful drug dependents, users and possessors alike, are given the chance to mend their ways.[34] The Court of Appeals also correctly stated that had it been the intention of the legislators to exempt from the application of Section 24 the drug traffickers and pushers who are minors and first time offenders, the law could have easily declared so.[35] The law indeed appears strict and harsh against drug traffickers and drug pushers while protective of drug users. To illustrate, a person arrested for using illegal or dangerous drugs is meted only a penalty of six months rehabilitation in a government center, as minimum, for the first offense under Section 15 of Rep. Act No. 9165, while a person charged and convicted of selling dangerous drugs shall suffer life imprisonment to death and a fine ranging from Five Hundred Thousand Pesos (P500,000.00) to Ten Million Pesos (P10,000,000.00) under Section 5, Rep. Act No. 9165. As for the second and third issues, Padua cannot argue that his right under Rep. Act No. 9344, the Juvenile Justice and Welfare Act of 2006 was violated. Nor can he argue that Section 32 of A.M. No. 02-1-18-SC otherwise known as the Rule on Juveniles in Conflict with the Law has application in this case. Section 68[36]of Rep. Act No. 9344 and Section 32 of A.M. No. 02-1-18-SC both pertain to suspension of sentence and not probation.

Furthermore, suspension of sentence under Section 38[37] of Rep. Act No. 9344 could no longer be retroactively applied for petitioners benefit. Section 38 of Rep. Act No. 9344 provides that once a child under 18 years of age is found guilty of the offense charged, instead of pronouncing the judgment of conviction, the court shall place the child in conflict with the law under suspended sentence. Section 40 [38] of Rep. Act No. 9344, however, provides that once the child reaches 18 years of age, the court shall determine whether to discharge the child, order execution of sentence, or extend the suspended sentence for a certain specified period or until the child reaches the maximum age of 21 years. Petitioner has already reached 21 years of age or over and thus, could no longer be considered a child[39] for purposes of applying Rep. Act 9344. Thus, the application of Sections 38 and 40 appears moot and academic as far as his case is concerned. WHEREFORE, the petition is DENIED. The assailed Decision dated April 19, 2005 and the Resolution dated June 14, 2005 of the Court of Appeals areAFFIRMED. SO ORDERED.

G.R. No. 170234

February 8, 2007

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. BERNARDO F. NICOLAS, Accused-Appellant. DECISION CHICO-NAZARIO, J.: Assailed before Us is the decision1 of the Court of Appeals in CA-G.R. CR-H.C. No. 01191 dated 23 August 2005 which affirmed in toto the decision2 of the Regional Trial Court (RTC) of Pasig City, Branch 164, in Criminal Case No. 11566-D, finding accused-appellant Bernardo Felizardo Nicolas, a.k.a. Bernie, guilty of violation of Section 5,3Article II of Republic Act No. 9165, otherwise known as Comprehensive Dangerous Drugs Act of 2002. In an Information dated 7 August 2002, accused-appellant Bernardo Felizardo Nicolas, a.k.a. Bernie, was charged with Violation of Section 5, Article II of Republic Act No. 9165, the accusatory portion thereof reading: On or about August 6, 2002, in Pasig City and within the jurisdiction of this Honorable Court, the accused, who is not being authorized by law, did, then and there willfully, unlawfully and feloniously sell, deliver and give away to PO2 Danilo S. Damasco, one (1) heat-sealed transparent plastic sachet containing 0.42 gram of white crystalline substance which was found positive to the test for methamphetamine hydrochloride (shabu), a dangerous drug, in violation of the said law.4 The case was raffled to Branch 164 of the RTC of Pasig City and docketed as Criminal Case No. 11566-D. When arraigned on 30 September 2002, appellant, assisted by counsel de oficio, pleaded "Not Gulity" to the charge.5 The Pre-Trial Conference of the case was terminated on the same day. Thereafter, the case was heard. The prosecution presented two witnesses: PO2 Danilo S. Damasco6 and SPO2 Dante Zipagan,7 both members of the Station Drug Enforcement Unit of the Pasig Police Station. The testimony of Police Inspector Delfin A. Torregoza, Forensic Chemical Officer, Eastern Police District Crime Laboratory Office, was, however, dispensed with after both prosecution and defense stipulated that the specimen8 submitted in court is the same one mentioned in the Request for Laboratory Examination9 and in Chemistry Report No. D-1501-02E,10 and that same was regularly examined by said forensic chemical officer. For the defense, appellant11 took the witness stand together with his common-law wife, Susan dela Cruz Villasoto,12 and brother, Jose Nicolas.13 The diametrical versions of the People and the accused are narrated by the trial court as follows: VERSION OF THE PEOPLE On August 6, 2002, at about 9:30 o’clock in the evening, a confidential informant stepped inside the office of the Station Drug Enforcement Unit of the Pasig Police Station, Pasig City and informed SPO4 Numeriano S. De Lara, Officer In-Charge of that unit, that a certain alias Bernie was selling shabu at his place along Santiago Street, in Barangay Bagong Ilog, Pasig City. Immediately, SPO4 De Lara organized a team to conduct a surveillance operation and the entrapment of alias Bernie, if warranted by the situation. The team was composed of PO2 Danilo S. Damasco, PO2 Montefalcon, PO2 Orig and SPO2 Zipagan who was the team leader. PO2 Damasco was designated to act as poseur-buyer in the buy-bust operation while the other police officers would serve as his back-ups to assist in the possible apprehension of alias Bernie. After a short briefing, the team of police operatives, including the confidential informant, proceeded to the target place at Santiago Street, Bagong Ilog, Pasig City. SPO2 Dante Zipagan, the team leader, instructed the confidential informant to first check and look for the whereabouts of alias Bernie. The informant, after five minutes, returned and informed the team that he found alias Bernie in front of his house and the team decided to proceed with the planned entrapment of alias Bernie. PO2 Damasco and the informant then walked towards the house of alias Bernie while the back-up police officers placed themselves strategically in different positions where they could see PO2 Damasco and the informant in the act of negotiating with alias Bernie. PO2 Damasco and the

informant saw alias Bernie conversing with a male person in front of his house. After the informant greeted alias Bernie, he introduced PO2 Damasco to alias Bernie whose real name is Bernardo Nicolas, the accused herein, as a user of shabu and would like now to buy some Php500.00 worth of the substance from him. Alias Bernie, responded that he still had one piece of that stuff and was willing to sell it to poseur-buyer Damasco. Accused asked for the money which was pre-marked by Damasco with initials DSD (Exh. D-1) which stands for the name of Danilo S. Damasco. Damasco then handed the five hundred peso bill (Exh. D) to accused who accepted it. Accused, in return, gave Damasco one plastic sachet containing white crystalline substance which looked like that of shabu. For a moment, PO2 Damasco examined the plastic sachet and its content and then announced to the accused he was a police officer and arresting him for violation of the drugs law. Accused Bernardo Nicolas alias Bernie got shocked and surprised. As Damasco was holding the accused, the back-up officers arrived and assisted him in handling the accused. Damasco recovered the buy-bust money and the police team took him away to their station, where he was turned over to a police investigator together with the small plastic sachet of suspected shabu that Damasco had purchased from the accused. SPO4 Numeriano S. De Lara sent the small plastic sachet containing white crystalline substance which was then marked with EXH.-A BFN/080602 to the Eastern Police District Crime Laboratory Office at St. Francis St., Mandaluyong City, as per his letter memorandum dated August 6, 2002 (Exhs. B and B-1). The specimen was received at the EPD Crime Laboratory office by P/Insp. Delfin Torregoza, a Forensic Chemical Officer, who weighed and examined the specimen which he found to contain 0.42 gram of white crystalline substance which was tested positive for methamphetamine hydrochloride as per his Chemistry Report No. D-1501-02E (Exhs. C and C-1). Accused Bernardo F. Nicolas was consequently charged with Violation of Section 5, Article II of R.A. 9165. VERSION OF DEFENSE xxxx [Appellant] testified that on August 6, 2002 at about 10:00 o’clock in the evening, he was outside of his house conversing with his brother, Jose Nicolas, and a friend named Arnold Mendez. He had just came (sic) out of his house in order to close the billiard salon that he owned. As they were then huddled in animated conversation, two motor vehicles stopped in front of his billiard parlor, a car and a van. The passengers of the van alighted and one of them pointed a gun at him. As accused was not familiar with the men, he could not recognize them. He learned, later on, that the man who poked a gun at him was PO2 Danilo Damasco who was accompanied by other persons numbering about four or five of them. Damasco warned him not to move, holding and waiving in his hand a plastic sachet which Damasco said he bought from accused Bernardo Nicolas. The police officers then proceeded to put handcuffs on the hands of the accused, in spite of his protest denying anything to do with the plastic sachet of alleged shabu being displayed by Damasco. The police officers also handcuffed and arrested Arnold Mendez. Jose Nicolas did not allow himself to be arrested and handcuffed. When he sensed that he would be handcuffed, he immediately fled and ran into his house, locking himself in. Luckily for him, the police officers did not pursue him any longer. He just watched the incident by peeping through the window of his house. Accused Bernardo Nicolas alias Bernie and Arnold Mendez, were then forced into the police vehicle and taken to the police station, although Nicolas showed resistance which forced the police officers to physically carry him into their vehicle. Accused Bernard Nicolas was then charged with Violation of Section 5, Article II, R.A. 9165. Appellant denies the charge. He insists that there was no buy-bust operation and that the shabu (methamphetamine hydrochloride) allegedly sold by him to the poseur buyer was planted evidence. He claims that the trumped-up charge is a way of getting even with him because he, together with his wife, had filed a case before the National Police Commission (NAPOLCOM) for grave misconduct against several policemen (PO2 Joel Tapec, PO1 Christopher Semana and five John Does) assigned at the Station Drug Enforcement Unit of the Pasig Police Station, for entering and robbing their house on 5 February 2002. He further claims that the policemen who arrested him for allegedly selling shabu were the John Does mentioned in the complaint he and his wife filed with the NAPOLCOM. In its decision dated 8 October 2003, the trial court found appellant guilty beyond reasonable doubt of the crime charged and sentenced him to life imprisonment. The dispositve portion of the decision reads: WHEREFORE, the court finds accused BERNARDO F. NICOLAS GUILTY beyond reasonable doubt, as principal of violation of Section 5, Article II, R.A. 9165 and hereby imposes upon him the penalty of life imprisonment and a fine of five hundred thousand pesos (P500.00),14 with the accessory penalties provided under Section 35 thereof.15 From the decision, appellant filed a Notice of Appeal informing the court that he is appealing the same to the Court of Appeals.16 Though the Notice of Appeal specified that the decision is being appealed to the Court of Appeals, the trial

court nonetheless forwarded the records of the case to the Supreme Court pursuant to Section 3, Rule 122 of the Rules of Court.17 On 22 November 2004, appellant filed an appellant’s brief before the Supreme Court. On 31 March 2005, the Office of the Solicitor General filed the People’s brief.18 Since the penalty imposed by the trial court was life imprisonment, the case was remanded to the Court of Appeals for appropriate action and disposition pursuant to our ruling in People v. Mateo.19 On 23 August 2005, the Court of Appeals rendered its decision affirming in full the decision of the trial court.20Appellant filed a Notice of Appeal assailing the decision before the Supreme Court.21 With the elevation of the records of the case to the Supreme Court, the parties were required to submit their respective supplemental briefs, if they so desire, within 30 days from notice.22 The parties opted not to file supplemental briefs on the ground that they have fully argued their positions in their respective briefs.23 Appellant assigns as errors the following: I. THE TRIAL COURT GRAVELY ERRED IN GIVING FAITH AND CREDENCE TO THE UNRELIABLE TESTIMONIES OF THE PROSECUTION WITNESSES AND IN TOTALLY DISREGARDING THE VERSION OF THE DEFENSE. II. THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY OF THE CRIME CHARGED DESPITE FAILURE OF THE PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT. Appellant observed that (1) the policemen did not conduct surveillance first; (2) they did not have any agreement as regards the money to be used in buying the shabu; and (3) they failed to talk about any signal to inform the back-up policemen that the transaction has been consummated. He contends that the absence of these things is unusual and that it made even more doubtful that the buy-bust operation really took place. 1avvphi1.net These observations will not purge him of the charge. Settled is the rule that the absence of a prior surveillance or test-buy does not affect the legality of the buy-bust operation. There is no textbook method of conducting buy-bust operations. The Court has left to the discretion of police authorities the selection of effective means to apprehend drug dealers.24 A prior surveillance, much less a lengthy one, is not necessary especially where the police operatives are accompanied by their informant during the entrapment.25 Flexibility is a trait of good police work.26 In the case at bar, the buy-bust operation was conducted without need of any prior surveillance for the reason that the informant accompanied the policemen to the person who is peddling the dangerous drugs. Appellant faults the policemen because there was no agreement or discussion among themselves as regards the marked money and the pre-arranged signal. From the records, it is clear that it was PO2 Damasco who prepared the marked money27 as shown by his initials on the top right corner of the P500.00 bill that was used in purchasing the shabu from appellant.28 The fact that the team leader and the other members of the team did not discuss or talk about the marked money does not necessarily mean that there was no buy-bust operation. As explained by SPO2 Zipagan, since PO2 Damasco was the designated poseur buyer it was the latter’s discretion as to how to prepare the marked money. It is not required that all the members of the buy-bust team know how the marked money is to be produced and marked inasmuch as they have their respective roles to perform in the operation. As this Court sees it, the other members of the team left the matter of the marked money to one person – the poseur buyer – because it was he who was to deal directly with the drug pusher.

As to the absence of a pre-arranged signal, same is not fatal to the cause of the prosecution. The employment of a pre-arranged signal, or the lack of it, is 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. A buy-bust operation is a form of entrapment which has repeatedly been accepted to be a valid means of arresting violators of the Dangerous Drugs Law.29 The elements necessary for the prosecution of illegal sale of drugs are (1) the identity of the buyer and the seller, the object, and consideration; and (2) the delivery of the thing sold and the payment therefore.30 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.31 In the case under consideration, all these elements have been established. The witnesses for the prosecution clearly showed that the sale of the drugs actually happened and that the shabu subject of the sale was brought and identified in court. The poseur buyer (PO2 Damasco) categorically identified appellant as the seller of the shabu. His testimony was corroborated by SPO2 Zipagan. Per Chemistry Report No. D-1501-02E of Police Inspector Delfin A. Torregoza, the substance, weighing 0.42 gram, which was bought by PO2 Damasco from appellant in consideration of P500.00, was examined and found to be methamphetamine hydrochloride (shabu). We quote the material portions of the testimony of the poseur buyer that detailed the apprehension of appellant, as follows: A: And we briefed and after a short briefing we proceeded to the alleged residence of Bernie and when we reached the place, I particularly saw the subject person in front of the alleged house. Q: You said we, whom are you referring to as those who went with you to the house of Bernie? A: The confidential informant. Q: After reaching the house of Bernie, what happened there? A: I saw the subject person infront of his alleged house talking to another male person. Q: What was the general condition of that place outside the house of Bernie when you saw him? A: Dim light, sir. Q: After you first saw Bernie talking with somebody else, what did you do? A: The confidential informant greeted alias Bernie and after greeting said person the other male person he was talking to went farther from us and they conversed. Q: And after that conversation between your informant and Bernie, what happened? A: The confidential informant introduced me as a shabu user and as a customer. Q: How far were you from Bernie when you were introduced? A: Only two (sic) away. Q: Less than a meter? A: Yes, sir. Q: What was the response of Bernie as you were introduced as a shabu user? A: He checked my personality first and he asked me if I will get the stuff, he asked me in tagalog, kukuha ka ba? Q: And what did you tell him?

A: I answered him, kung mayroon kukuha ako. Q: And what was his answer? A: He answered me that, mayroon kaya tamang-tama kasi isa na lang itong natitira sa akin panggamit ko sana. Q: At that very moment, after you were told by Bernie isa na lang ang natitira, what did you? A: I asked him kung puwede pang bilhin and then he told me, isa na lang ito panggamit ko, magkano ba ang kukunin mo? Q: What was your answer? A: I told him, P500.00 worth. Q: And what is [his] reply? A: Okay, ibibigay ko na lang sa inyo. Q: And what happened next? A: He asked my payment first. Q: And what did you do after he asked your payment? A: I gave him the pre-marked money. Q: What (sic) that bill made off? A: P500.00 bill. Q: Where did you put that marking in that bill? A: I put the marking on the upper right portion of the bill inside the 500. Q: What are the markings did you put there? A: I put my initials DSD. Q: Now after you gave him that P500.00 marked money, what else happened? A: After he received the pre-marked money then he gave me one (1) plastic sachet containing white crystalline substance after receiving said I examined the plastic sachet. Q: After that examination of yours, what did you do? A: After a brief examination immediately I introduced myself as a police officer and subsequently, arrested alias Bernie. Q: After you introduced yourself as a police officer, what was the reaction of alias Bernie? A: He was shocked, sir. Q: Did he tell you anything? A: None, sir.

Q: And what did you do after arresting him immediately? A: After informing his constitutional right I recovered the pre-marked money. Q: You mean, you frisked him, Mr. Witness? A: Yes, sir. Q: What else did you recover from him aside from the mark money? A: Nothing more.32 Appellant tries to discredit PO2 Damasco and SPO2 Zipagan by showing an inconsistency in their testimonies regarding the condition of the scene of the incident. He points out that PO2 Damasco stressed that the place was dark while SPO2 Zipagan said that the area was well-lighted.33 After going over the testimonies of the two police operatives, we find no inconsistency in their testimonies. When asked about the general condition of the place outside the house of appellant, PO2 Damasco answered "dim light."34 On the other hand, SPO2 Zipagan said the place was "a lighted area."35 PO2 Damasco did not say that the place was dark nor did SPO2 Zipagan say that the place was well-lighted. What is clear is that the place was lighted. Thus, since both witnesses said that the place was lighted, the inconsistency is more apparent than real. Even assuming ad arguendo that this can be considered an inconsistency, same is trivial to adversely affect their credibility. We now go to appellant’s contention that the policemen who arrested him were impelled by improper motive. He argues that he was merely talking to his brother and a friend when the policemen suddenly arrived and insisted that he had sold shabu to PO2 Damasco. He claims that the charge against him was driven by the policemen’s desire to get even with him for filing a case for grave misconduct against the said policemen with the NAPOLCOM. He added that the trial court should have considered the motive as to why he was charged and that the possibility of vengeance is not remote. We find appelant’s imputation of ill motive on the police officers to be unsubstantiated by clear and convincing evidence. We agree in the trial court’s ruling when it said: The evidence does not show that Damasco and Zipagan were moved by ill-will in testifying against the accused. There was no ill feeling or personal animosity existing between the police officers and the accused at the time of the latter’s arrest. It is true that accused Bernardo F. Nicolas and his common-law wife Susan Dela Cruz Villasoto filed an administrative case against PO2 Joel Tapec and PO1 Christopher Semana, both of the Pasig City Police Station for grave misconduct before the National Police Commission which is docketed as ADM CASE No. 2003-008 (NCR). But the filing of this case against Tapec and Semana is not enough reason for Damasco and Zipagan to fabricate or plant evidence against the accused. There was absolutely no reason at all for them to risk their lives and career to go and plant evidence against the accused which is in violation of Section 29 of R.A. 9165 that imposes upon any person found guilty of planting any dangerous drug regardless of quantity and purity, the penalty of death. These police officers are presumed to know this law and the court believes that these police officers do not wish to lose their lives by fabricating evidence against innocent individuals. Accused Bernardo Nicolas, naturally, was expected to deny the accusation against him, for admission would automatically result in conviction. The testimony of his common-law wife, Susan Dela Cruz Villasoto is not much of help to the accused’[s] defense. Since she did not witness what transpired when accused went out of the house in the evening of August 6, 2002. All that she substantially testified to was that she heard shouting outside of their house and saw three persons forcibly carrying her husband to the other side of the road. (TSN, July 7, 2003, p. 4). Witness Jose F. Nicolas, to the mind of the court is not a credible witness. He claimed he was present at the time accused was arrested. He said he fled in order to avoid being handcuffed and arrested by the police when his brother alias Bernie was arrested. He did not even visit his brother in jail. He talked to him only on August 25, 2003 to discuss with him his testimony in court. (TSN, September 15, 2003, p. 13). Being accused’s close relative, Jose Nicolas is expected to testify favorably in behalf of the accused whose testimony, of course, is not sufficient to overthrow the strength and weight of the testimonies of the police officers Damasco and Zipagan.36

We likewise find appellant’s declaration that the policemen who arrested him were the very same ones who robbed his house on 5 February 2002 to be a mere afterthought in order that he may justify his claim of improper motive on the part of the policemen. How convenient, indeed, it is for him to make such a declaration. From the time of the alleged break-in in his house on 5 February 2002 until the time he was arrested on 6 August 2002 for selling shabu, he never lifted a finger to try and find out the identities of the alleged five John Does mentioned in his complaint with the NAPOLCOM. He could have easily gone to the Station Drug Enforcement Unit of the Pasig Police Station, but this he did not do. Only when he was arrested during an entrapment operation did he make such a claim. The timing thereof renders such declaration very dubious and unreliable. Appellant’s contention that he was framed-up is made even more suspect by the fact that the statement37 of his common-law wife that he had gone out of the house for only two minutes when the policemen arrived and took him away is belied by the statement38 of his brother that he had been outside the house for 30 minutes and was talking with his brother and Arnold Mendez when the policemen arrived. Frame-up, like alibi, is generally viewed with caution by this Court, because it is easy to contrive and difficult to disprove. Moreover, it is a common and standard line of defense in prosecutions of violations of the Dangerous Drugs Act.39 For this claim to prosper, the defense must adduce clear and convincing evidence to overcome the presumption that government officials have performed their duties in a regular and proper manner.40 In the case at bar, the presumption remained uncontradicted because the defense failed to present clear and convincing evidence that the police officers did not properly perform their duty or that they were inspired by an improper motive. Prosecutions involving illegal drugs largely depend on the credibility of the police officers who conducted the buy-bust operation. Considering that this Court has access only to the cold and impersonal records of the proceedings, it generally relies upon the assessment of the trial court, which had the distinct advantage of observing the conduct and demeanor of the witnesses during trial. Hence, factual findings of the trial courts are accorded respect absent any showing that certain facts of weights and substance bearing on the elements of the crime have been overlooked, misapprehended or misapplied.41 We have no reason to deviate from this rule. We affirm the factual findings of the trial court as affirmed by the Court of Appeals. The evidence presented by the prosecution proves to a moral certainty petitioner’s guilt of the crime of selling dangerous drugs. The sale of shabu is penalized under Section 5, Article II of Republic Act No. 9165. Said section reads: SEC. 5. Sale, Trading, Administration, Dispensation, Delivery, Distribution and Transportation of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals. – The penalty of life imprisonment to death and a fine ranging from Five hundred thousand pesos (P500,000.00) to Ten million pesos (P10,000,000.00) shall be imposed upon any person, who, unless authorized by law, shall sell, trade, administer, dispense, deliver, give away to another, distribute, dispatch in transit or transport any dangerous drug, including any and all species of opium poppy regardless of the quantity and purity involved, or shall act as a broker in any of such transactions. Under said law, the sale of any dangerous drug, regardless of its quantity and purity, is punishable by life imprisonment to death and a fine of P500,000.00 to P10,000,000.00. For selling 0.42 gram of shabu to PO2 Damasco, the trial court, as sustained by the Court of Appeals, imposed the penalty of life imprisonment and a fine of P500,000.00 in accordance with Article 63(2)42 of the Revised Penal Code. Section 98 of Republic Act No. 9165, however, provides for the limited application of the provisions of the Revised Penal Code on said law. This Section reads: SEC. 98. Limited Applicability of the Revised Penal Code. – Notwithstanding any law, rule or regulation to the contrary, the provisions of the Revised Penal Code (Act No. 3815), as amended, shall not apply to the provisions of this Act, except in the case of minor offenders. Where the offender is a minor, the penalty for acts punishable by life imprisonment to death provided herein shall be reclusion perpetua to death. (Underscoring supplied.) With the aforesaid section, the provisions of the Revised Penal Code shall no longer apply to the provisions of the Drugs law except when the offender is a minor. Thus, Article 63(2) of the Revised Penal Code shall not be used in the determination of the penalty to be imposed on the accused. Since Section 98 of the Drugs Law contains the word "shall," the non-applicability of the Revised Penal Code provisions is mandatory, subject only to the exception in case the offender is a minor.

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 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 on 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 the accused-appellant. WHEREFORE, premises considered, the instant appeal is DISMISSED. The decision of the Court of Appeals in CAG.R. CR-H.C. No. 01191 dated 23 August 2005 which affirmed in toto the decision of the Regional Trial Court of Pasig City, Branch 164, in Criminal Case No. 11566-D, finding accused-appellant Bernardo Felizardo Nicolas, a.k.a. Bernie, guilty of violation of Section 5, Article II of Republic Act No. 9165, is hereby AFFIRMED. SO ORDERED.