FIRST DIVISION
PEOPLE OF THE
PHILIPPINES,
Appellee,
G.R.
No.
141532
April 14, 2004
-versus-
GATUDAN BALAG-EY
AND EDWIN
ALIONG Y SUNGOT,
Appellants.
D E C I S I O N
PANGANIBAN,
J.:chanroblesvirtuallawlibrary
Those who engage in the
illicit trade of dangerous drugs and who prey on misguided members of
society
must be caught and put behind bars. To do this, however, the
prosecution
must prove their guilt beyond reasonable doubt. Without such
proof,
acquittal is the only recourse. The Case
Gatudan Balag-ey and
Edwin Aliong appeal the October 20, 1999 decision[1]
of the Regional Trial Court (RTC) of Baguio City (Branch 6) in Criminal
Case No. 16100-R, in which they were found guilty of illegal possession
and attempted sale of prohibited drugs. The dispositive portion
of
the assailed Decision reads:
"Wherefore, the Court
finds accused Gatudan Balag-ey and Edwin Aliong guilty beyond
reasonable
doubt of the offense of illegal possession of and attempt to sell
marijuana
with a total weight of 18,352.82 grams in violation of Section 21,
Article
IV in relation to Section 4, Article II of Republic Act 6425, as
amended
by Republic Act 7659 as charged in the Information which is included in
the offense of sale or delivery of marijuana proved and hereby
sentences
each of them to the penalty of Reclusion Perpetua and to pay the fine
of
P500,000.00 each, without subsidiary imprisonment in case of
insolvency,
and to pay the costs.chanrobles virtuallaw libraryred
“The accused Gatudan
Balag-ey and Edwin Aliong, being both detention prisoners, are entitled
to be credited 4/5 of their preventive imprisonment in the service of
their
sentence in accordance with Article 29 of the Revised Penal Code.cralaw:red
“The 18,352.82 grams
of bricks of marijuana contained in the cigarette box with the marking
Philip Morris are forfeited in favor of the State to be destroyed
immediately
in accordance with law.”[2]
(Citations omitted)chanrobles virtuallaw libraryred
Appellants were charged
in an Amended Information[3] dated December 9, 1998, as follows:
“That on or about the
28th day of September, 1998, in the City of Baguio, Philippines, and
within
the jurisdiction of this Honorable Court, the above-named accused,
conspiring,
confederating and mutually aiding x x x each other, without any
authority
of law, did then and there willfully, unlawfully and feloniously have
in
their possession and attempt to sell twenty (20) bricks of dried
marijuana
leaves/fruiting tops, a prohibited drug, weighing about 18,352.82 grams
(actual weight) more or less, to SPO1 DANILO P. NATIVIDAD, a member of
the Philippine National Police, 14th Narcotics Regional Office, who
acted
as poseur buyer, for P1,000.00 per kilo, in violation of the aforecited
provision of law.”[4]
During their respective
arraignments on December 21, 1998[5]
and January 21, 1999,[6]
appellants, with the assistance of their counsels de parte,[7]
pleaded not guilty to the charge. After trial in due course, the
court a quo rendered the assailed Decision. It also denied
appellants’
Motion for Reconsideration.[8]
The Facts
Version of the
Prosecution
In its Brief, the Office
of the Solicitor General (OSG) presents the prosecution’s version of
the
facts as follows:chanrobles virtuallaw libraryred
“About 10:30 in the
morning of September 28, 1998, the 14th Narcotics Regional Office
(NARCOM)
with office at DPS Compound, Baguio City, received a confidential
information
from Roger Imasa that a certain Gatudan of La Trinidad, Benguet, was
engaged
in the sale of marijuana. He was allegedly looking for
buyers.
Police Senior Inspector Rodolfo Castel formed a team for the possible
arrest
of Gatudan. SPO1 Danilo Natividad was designated as poseur buyer
with SPO1 Pedro Rabago and PO2 Emerson Lingbawan as back-up. SPO1
Natividad was given the boodle money.cralaw:red
“Later in the morning
of the same day, SPO1 Natividad and Imasa were able to locate Gatudan
at
the Universal Martial Arts Gym along Zandueta Street, Baguio
City.
Imasa introduced SPO1 Natividad to Gatudan as a friend and a drug
user.
After a brief conversation, Gatudan agreed to sell to SPO1 Natividad
all
of his available marijuana, about 20 kilos in all, at P1,000.00 per
kilo.
They agreed to meet at five in the afternoon in front of Jollibee at
the
Session Road. The buy-bust team was alerted and briefed.cralaw:red
“About 4:30 in the afternoon
of the same day, Imasa, SPO1 Natividad, SPO1 Rabago and PO2 Lingbawan
proceeded
to Jollibee Session Road on board a taxi. SPO1 Rabago and PO2
Lingbawan
positioned themselves in the vicinity while SPO1 Natividad proceeded to
wait in front of Jollibee.cralaw:red
“Not long after, Gatudan
alighted from a Tamaraw FX Taxi. His companion, co-accused
Aliong,
remained inside the taxi with the cigarette box marked Philip Morris at
the back compartment of the taxi. After seeing Gatudan, SPO1
Natividad
approached him and inquired about the deal. Gatudan told him that
the stuff was ready and opened the [back] compartment of the
taxi.
He noticed the plastic straw and opened the cigarette box containing
the
marijuana bricks. After confirming the contents, SPO1 Natividad
gave
the pre-arranged signal by removing his bull cap.chanrobles virtuallaw libraryred
“SPO1 Rabago and PO2
Lingbawan rushed to the scene. After identifying themselves as
police
officers, they arrested Balag-ey and Aliong. They (Balag-ey and
Aliong)
were informed of their constitutional rights. The box was
confiscated
and SPO1 Natividad put his initials on it for identification.
They
were brought to the NARCOM office in the same Tamaraw FX taxi driven by
Vicente Garbo.cralaw:red
“At the NARCOM office,
they issued a receipt of the property seized, prepared the booking
sheet
and arrest report of Gatudan. SPO1 Natividad executed his
Affidavit
regarding the buy-bust and arrest of Gatudan and Aliong as well as the
Joint Affidavit of the back-up team.cralaw:red
“Preliminary findings
of Alma Margarita Villaseñor, forensic chemist of the PNP Crime
Laboratory in Camp Bado Dangwa, La Trinidad, Benguet, found the bricks
to be positive for marijuana. A more detailed laboratory
examination
embodied in Chemistry Report No. D-011-98 confirmed the findings about
the 20 bricks of marijuana with a total weight of 18,352.82 grams.”[9]
(Citations omitted)
Version of the
Defense
Vehemently denying that
he was arrested during the alleged buy-bust operation, Appellant
Balag-ey
states his version of the facts in this manner:
“x x x [Balag-ey] was
surprised when policemen in civilian [clothes] suddenly arrested him at
around 5:00 p.m. of September 28, 1998, at the Universal Martial Arts
Gym.
The policemen immediately handcuffed him, and brought him to the NARCOM
office. Upon [his] arrival at the NARCOM office, he saw Roger
Imasa
and accused-appellant Edwin Aliong in handcuffs.chanrobles virtuallaw libraryred
“The NARCOM agents interrogated
him and insisted that he divulge the name of the supplier of marijuana
from Sagada. Accused Balag-ey retorted that he had no knowledge
of
the matters being asked of him and that he was merely a student at the
Universal Martial Arts Gym. However, the NARCOM agents persisted
and continued to inquire for the identity of the alleged supplier of
the
marijuana. He was even threatened that he will rot in jail, if he
failed to disclose the identity of the marijuana supplier. During
his custody, accused Balag-ey was never informed of his constitutional
rights and he was not provided with any counsel.”[10]
For his part, Appellant
Aliong narrates the facts in this wise:
“1.
[Aliong] is a martial arts instructor teaching kick boxing, combat
aikido,
boxing, among others at his gym at No. 49-B, Zandueta Street, Baguio
City.
His gym is known as the Universal Martial Arts Organization;
“2.
He knows one Roger Imasa, a known asset of the x x x
NARCOM,
his kumpadre and one of the Martial Arts instructors at the Universal
Martial
Arts Organization;
“3.
Likewise, he knows his co-accused, Gatudan Balag-ey. Gatudan
Balag-ey
is his friend way back during the 1980’s;
“4.
Sometime in 1997 and again in 1998, Gatudan Balag-ey visited him at his
gym. Considering that they are friends, he allowed Gatudan to
practice
in his gym;
“5.
One time, x x x Gatudan Balag-ey asked him if he would like to have
money.
He asked how and Gatudan said that he knew of somebody who was looking
for a buyer of marijuana.chanrobles virtuallaw libraryred
“6.
He then told Gatudan that he hates that kind of job. He even
advised
Gatudan to avoid that kind of job because that is difficult;
“7.
He mentioned his conversation to his friend, Roger Imasa, the NARCOM
asset.
Roger then told him that if he likes, they would cause the arrest of
Gatudan;
“8.
Roger Imasa then told him to introduce him to Gatudan. Roger told
him that he introduced him as someone who knows a buyer.
Thereafter,
he introduced Roger Imasa to Gatudan Balag-ey and when the two were
introduced,
they talked to each other;
“9.
In the afternoon of September 28, 1998, Roger Imasa, the NARCOM
[a]sset,
convinced him to tell Gatudan to go somewhere. Gatudan
refused.
He and Roger Imasa then went to the Hangar Market. Roger then
went
out and when he came back, he was carrying one [carton box]. He
never
saw the contents of the [carton];
“10. Roger
then loaded the [carton] in an [FX] Taxi. [Thereafter,] Roger told the
taxi driver to bring them to the DPS Compound. However, they
dropped
by at the Jollibee Session Road. Roger then went out of the taxi
and then told him to wait. Thus, he just sat down inside the F[X]
Taxi. After 5 minutes, a man who introduced himself as a police
officer
went inside and sat down. He was told to sit at the front
seat.
About 4 men who introduced themselves as police officers went near the
taxi;chanrobles virtuallaw libraryred
“11. After
the men who introduced themselves as police officers came inside the
taxi,
Roger Imasa was nowhere to be found. Then they proceeded to the
NARCOM
Office at DPS Compound, where someone -- later to be identified as
Police
Officer Lingbawan -- asked his companions[:] ‘Kumusta?’ (How is it?),
to
which one of his companions answered. ‘Palpak’ (It was a
failure).
The one who answered ‘it was a failure’ was the alleged poseur buyer,
Police
Officer Natividad;
“12. He
was thereafter told to ‘just relax.’ Police officer Lingbawan
then
convinced him to testify that Gatudan Balag-ey was with him inside the
taxi. Thereafter, Officer Lingbawan convinced him that if he
would
cooperate, he will become an asset and that if he refuses to cooperate,
he will be implicated just the same. Thus, he agreed to become an
asset and [he said] that ‘Gatudan Balag-ey was with him inside the
taxi.’
For this reason, he was made to sign [an] Affidavit.
Incidentally,
it was the NARCOM officers who prepared the said affidavit and they
merely
told him to sign the same;
“13. For
the record, he never saw the contents of the box and it was only at the
NARCOM Office that he was informed of its contents;
“14. He
was then made to stay at the NARCOM Office. The next day,
September
29, 1998, he was released. And he was released because he was
totally
innocent of the transaction between Gatudan Balag-ey, the ‘CI’ Roger
Imasa
and the alleged poseur buyer, Police Officer Danilo Natividad.”[11]
(Citations omitted)
Ruling of the
Trial
Court
Disregarding the defenses
proffered by appellants, the trial court ruled that they had been
caught,
in flagrante delicto, selling or delivering 20 bricks of marijuana
weighing
18,352.82 grams to the poseur-buyer -- SPO1 Natividad.cralaw:red
In the case of Balag-ey,
the court a quo found it difficult to believe that police operatives
would
plant evidence against him. It also discredited his claim that he
had been arrested at the Universal Martial Arts Gym along Zandueta
Street,
rather than at a Jollibee fast-food restaurant chain along Session Road
(“Jollibee-Session Road”).cralaw:red
With regard to Aliong,
the RTC held that he, together with Balag-ey, had loaded a cigarette
box
containing marijuana in a taxi, brought it to Jollibee-Session Road,
and
delivered it to the poseur-buyer. Thus, the trial court brushed
aside
the claim of Aliong that he had no knowledge of Balag-ey’s marijuana
transaction.chanrobles virtuallaw libraryred
Hence, this appeal.[12]
The Issues
Appellant Balag-ey raises
the following supposed errors for our consideration:
“I
The trial court
erred
in giving full weight and credence to the testimonies of the arresting
officers despite glaring inconsistencies and improbabilities.
“II
The trial court
erred
in finding that the guilt of Accused-appellant Gatudan Balag-ey for the
crime charged has been proven beyond reasonable doubt.”[13]
Appellant Aliong, on
the other hand, alleges the following errors:
“I
Whether or not the
honorable
trial court was correct in convicting the accused despite the
conflicting
testimonies of the prosecution witnesses. The police officers
testified
that accused and Gatudan Balag-ey rode together in the FX taxi while
the
alleged driver testified that it was herein Accused-appellant Aliong
and
another person who rode in the said FX Taxi.
“II
Whether or not the
honorable
trial court is correct in convicting the accused despite the
testimonies
of the police officers that herein accused-appellant has no knowledge
of
the alleged buy-bust operation. The testimonies of the police
officers
[show] that it was the accused, Gatudan Balag-ey, who owned the
marijuana
delivered to the alleged poseur-buyer, Danilo Natividad. Thus, it
is incorrect for the honorable trial court to hold herein
Accused-appellant
Aliong in conspiracy with Gatudan Balag-ey.
“III
Considering the
peculiar
facts obtaining in the case at bar, whether or not the honorable trial
court is correct in convicting the accused appellant despite the fact
that
the alleged cooperating individual (‘CI’), Roger Imasa, was not
presented
as a witness.
“IV
Whether or not the
honorable
trial court is correct in convicting the accused despite clear and hard
evidence that no buy-bust operation was actually conducted as shown by
the fact that no money changed hands between the alleged poseur buyer
and
the accused, Gatudan Balag-ey. This is further shown by the fact
that no ‘marked money’ was produced and marked in court as evidence.”[14]
In short, appellants
question (1) the credibility of the prosecution witnesses, (2) the
sufficiency
of the prosecution evidence, and (3) the existence of the buy-bust
operation.
The Court’s Ruling
The appeal is meritorious.cralaw:red
First Issue:
Credibility of
the Prosecution Witnesses
Appellant Balag-ey impugns
the veracity of the testimonies of the arresting officers that he was
caught
in the act of selling marijuana at Jollibee-Session Road. He
maintains
that he was arrested at the Universal Martial Arts Gym located on
Zandueta
Street.cralaw:red
As a rule, the trial
court’s findings of fact and conclusions on the credibility of
witnesses
are accorded high respect[15]
and due weight,[16]
unless it has overlooked material and relevant points that would have
led
it to rule otherwise. In the present case, however, the RTC
committed
glaring factual oversights that impel us to depart from this general
doctrine.[17]
The witnesses of Balag-ey
-- Diosdado Mapala[18]
and Angie Liza Ladiwan[19]
-- testified that on the afternoon of September 28, 1998, they saw
appellant
in handcuffs, being led by police officers downstairs at the Universal
Martial Arts Gym. Hence, they had the impression that he was
arrested
there. Nonetheless, the trial court ruled that their testimonies
were consistent with the fact that the arresting officers had brought
appellant
to the gym after his arrest in this wise:
“Seventh, the testimonies
of Diosdado Mapala and Angie Liza Ladiwan cannot be given weight by the
court to show that Gatudan was arrested at the Universal Martial Arts
Gym
at Zandueta Street.cralaw:red
“Diosdado Mapala was
not inside the Universal Martial Arts Gym at that time and so he could
not say what happened inside the said Gym [or] if Gatudan was really
arrested
there. Mapala himself said that he was outside the Gym in front
of
a certain grocery and was crossing the road when he noticed Gatudan in
handcuffs being accompanied by male persons coming from the direction
of
Universal Martial Arts Gym.chanrobles virtuallaw libraryred
“This does not establish
[with] certainty that Gatudan was arrested inside the Universal Martial
Arts Gym, [b]ecause it could happen that Gatudan was arrested in
Jollibee
Session Road and then brought back to the Universal Martial Arts by the
police and when he was coming out that was the time and occasion when
Diosdado
Mapala saw Gatudan in handcuffs.”[20]
(Italics supplied)
There is no evidence
on record, however, that the arresting officers did bring Balag-ey to
the
gym after his arrest. Quite the contrary, SPO1 Natividad
categorically
averred that Gatudan had not been brought to the Universal Martial Arts
Gym at any time after his alleged arrest. The police officer
testified
on direct examination as follows:
“Prosecutor Vergara
[to SPO1 Natividad]:
Q
Aside from physical examination, did you bring him anywhere else?
A
No more, sir.cralaw:red
Q
He was not brought back to the gymnasium, Mr. Witness.cralaw:red
A
No sir.”[21]
(Italics supplied)
Moreover, Garbo, the
taxi driver, categorically said that when his taxi was hailed on the
afternoon
of September 28, 1998, Balag-ey was not Aliong’s companion. Garbo
likewise testified that the police officers had not gone to the
Universal
Martial Arts Gym after that incident. Pertinent portions of his
testimony
are herein quoted:
“[Atty. Molintas]
Q
You mean you do not know the identity of the person who was with Aliong
at that time he was arrested?
A
No sir.cralaw:red
Q
You cannot describe him to be a short person who is with dark
complexion?chanrobles virtuallaw libraryred
A
Somewhat dark and short, sir.cralaw:red
Q
When Edwin Aliong was arrested in Session [R]oad, was this companion of
his not brought to the NARCOM office?
A
No sir.cralaw:red
Q
Do you know where he went after Aliong was arrested?
A
No sir.cralaw:red
Q
Aside from the NARCOM officers and Edwin Aliong whom they brought to
the
NARCOM office, were there other companions of the NARCOM officers who
followed
you in another vehicle towards the NARCOM office?
A
None, sir.cralaw:red
Q
You said you went to Hilltop with the NARCOM officers. From the
Hilltop
where you went, have you seen this Universal Martial Arts Gym?
A
No x x x, sir.cralaw:red
Q
Anyway, the NARCOM officers told you to wait and after some time, they
came back, is that your testimony?
A
Yes sir.cralaw:red
Q
When they came back and boarded your vehicle, they have another person
or they arrested another person, is that correct?
A
I did not notice, sir.chanrobles virtuallaw libraryred
Q
This person you mentioned a while ago who identified himself as Gatudan
Balag-ey, you said that you saw him at the Fiscal’s Office when you
were
investigated, would that be correct?
A
Yes sir.cralaw:red
Q
That was the first time you saw him, would that be correct?
A
Yes sir.cralaw:red
Q
You did not see him at that time of the arrest of Edwin Aliong?
A
Inside the taxi sir, no sir.cralaw:red
Q
You mean when Edwin Aliong was arrested, Gatudan Balag-ey was not
inside
the taxicab?
A
No x x x, sir.cralaw:red
Q
And in fact, Gatudan Balag-ey could not be the companion of Edwin
Aliong
because Gatudan Balag-ey is quite tall and fair in complexion while the
companion of Edwin Aliong was quite dark and short, would that be
correct?
A
Yes sir.cralaw:red
COURT:chanrobles virtuallaw libraryred
The court would like to be clear on that. You are telling this
court
then that the two persons who boarded that box in your taxi, one of
whom
was Aliong but the other is not Balag-ey, is that what you are telling
the Court?
A
No, sir. But his features, it is not like him.cralaw:red
COURT:
Continue
Atty. Molintas:
Q
In fact, you testified on this matter before Fiscal Vergara when you
were
investigated in his office, would that be correct?
A
Yes sir.cralaw:red
Q
Could you tell the Court who prepared that Affidavit which you
identified
earlier as your Affidavit?
A
It was prepared at the NARCOM office.cralaw:red
Q
After they prepared that, they released you on the same date on
September
28, 1998, would that be correct?
A
Yes sir.cralaw:red
Q
In other words, you were made to sleep at the NARCOM office on
September
28, 1998?
A
I did not sleep there, sir.chanrobles virtuallaw libraryred
Q
So where did you sleep on the night of September 28, 1998?
A
In our house, sir.cralaw:red
Q
At the NARCOM office, you said earlier that you never met Gatudan
Balag-ey,
would that be correct?
A
Yes sir.cralaw:red
Q
In your Affidavit, a name Gatudan Balag-ey was indicated, do you know
who
included this name Gatudan in your Affidavit?
A
The person who investigated me whose name I do not know wrote that, sir.cralaw:red
Q
Because the truth is, you never knew Gatudan Balag-ey and you never met
him on September 28, 1998, correct?
A
Yes sir.”[22]
x x
x
x x
x
x x x
“[Atty. Dumawing]
Q
So the 6th paragraph of your Affidavit which states and I quote, ‘That
when we arrived in front of Jollibee, one male alighted from the taxi
and
proceeded inside the Jollibee and when they returned he has already one
male companion and they went near my taxi and his (Gatudan) male
companion
checked the contents of the box and later announced that he is a
Narcotics
agent until other members of the Narcotics agents arrived and arrested
my passengers and proceeded to Narcotics Office at DPS Compound, Baguio
City x x x’ is not entirely correct, is it not, Mr. Witness?
A
Yes sir because when I was relating, they were typing it.chanrobles virtuallaw libraryred
COURT:
Q
Now, the Court wants to be very clear on that, so that there will be no
mistakes about it. You are telling us then that it was not
Gatudan
Balag-ey who alighted from your taxi, then came back with another
companion
to check the contents of the box in the taxi?
A
No sir.”[23]
Even Aliong said in
his testimony that for fear of being implicated, he was forced to
declare
that Balag-ey had been arrested with him at Jollibee-Session
Road.
He testified thus:
“[Atty. Dumawing]
Q
So, after you arrived at the NARCOM Office at the DPS Compound, what
happened,
if any?
A
They told me, ‘Edwin, just relax.’ Then they talked to each other.cralaw:red
Q
Do you know what they were talking about?
A
No, sir, because I went out.cralaw:red
Q
What happened after that?
A
After they talked, Li[ng]bawan called me.cralaw:red
Q
Do you remember for how long they were talking?chanrobles virtuallaw libraryred
A
About more than 5 minutes, sir.cralaw:red
Q
And where were you during all these 5 minutes that they were talking?
A
I was outside, sir.cralaw:red
Q
Outside of?
A
Outside of the NARCOM office, sir.cralaw:red
Q
So, when this Li[ng]bawan finally called you, what did he tell you, if
any?
A
Li[ng]bawan was convincing me to testify that Gatudan Balag-ey was with
me inside the taxi.cralaw:red
Q
What did you say to his proposal, Mr. Witness?
A
I refused because I told him Gatudan Balag-ey was not my companion.cralaw:red
Q
What was the response of Li[ng]bawan when you refused?
A
He talked to me and even hit my conscience. He told me to think
it
over because I should think of the number of persons who could be
destroyed
by that box of marijuana, that it might include my children or even my
relatives. And he told me that it was already confirmed that
Gatudan
Balag-ey is a pusher and he asked me to cooperate.cralaw:red
Q
What else did he tell you, if any, in order to convince you?chanrobles virtuallaw libraryred
A
He told me that if I cooperate, I will be officially included as an
asset.cralaw:red
Q
What else?
A
No more, sir.cralaw:red
Q
He did not threaten you?
A
He told me that if I don’t cooperate, I will be implicated just the
same.cralaw:red
Q
So, what was your response to Li[ng]bawan when he said that?
A
I told him that Gatudan Balag-ey might take revenge against me.cralaw:red
Q
When you told that to Li[ng]bawan, what did he say, if any?
A
He told me not to worry because they will take care of me.cralaw:red
Q
So, what followed next, Mr. Witness?
A
When he told me that, I agreed to be an asset [and] to say that Gatudan
Balag-ey was with me inside the taxi.cralaw:red
Q
Why did you finally agree to testify falsely against Gatudan Balag-ey?chanrobles virtuallaw libraryred
PROS. VERGARA:
Already answered.cralaw:red
COURT:
May answer.cralaw:red
WITNESS:
A
Because Li[ng]bawan told me that Gatudan Balag-ey is a confirmed
pusher.
So, because as I said I hate that kind of activity, I agreed.cralaw:red
Q
Mr. Witness, you executed an [a]ffidavit earlier marked by the
prosecution
as Exhibit ‘H.’ Who prepared this [A]ffidavit?
A
The NARCOM officers, sir.cralaw:red
Q
Who particularly among the NARCOM officers?
A
What I know is it was Li[ng]bawan who prepared it because he was the
one
talking to me and he was the one who showed it to me.cralaw:red
Q
Did you understand all the contents of this [A]ffidavit of yours?chanrobles virtuallaw libraryred
A
No sir, only the first part.cralaw:red
Q
What particular part of this [A]ffidavit did you understand, Mr.
Witness?
A
Only that portion which says that Gatudan Balag-ey was with me inside
the
taxi. And when I saw that, I did not mind the rest anymore.cralaw:red
Q
By the way, what is your highest educational attainment, Mr. Witness?
A
Second year high school, sir.cralaw:red
Q
Now, Mr. Witness, are the contents of this [A]ffidavit true as far as
you
know?
A
No, sir.cralaw:red
Q
Now, Mr. Witness, despite knowing that the contents of this [A]ffidavit
are not true, why did you sign it?
A
Because the NARCOM officer told me that if I will not sign it, I will
be
implicated.cralaw:red
COURT: (to witness)
Q
Did you realize that by your testimony now you have actually implicated
yourself because in your testimony you are the one who brought the box
of marijuana to Jollibee Restaurant in that taxi?chanrobles virtuallaw libraryred
A
What I agreed with Roger Imasa was to bring that carton of marijuana to
the NARCOM office, sir.cralaw:red
COURT:
Continue.cralaw:red
ATTY. DUMAWING:
Q
Mr. Witness, have you seen the contents of that box?
A
No, sir.cralaw:red
Q
Did you ever personally hold that box?
A
No, sir.cralaw:red
Q
Now, Mr. Witness, you finally agreed to testify against Gatudan
Balag-ey.
What did Li[ng]bawan do, if any, after that?
A
He told me to call up the gym and inform them that a NARCOM officer
will
go to the gym and that they should show that officer who Gatudan is.cralaw:red
Q
What did you do after that?chanrobles virtuallaw libraryred
A
I called my wife by phone and relayed to her what Li[ng]bawan told me,
that when they arrive at the gym they will point Gatudan to them.cralaw:red
Q
So, after you called your gym, as instructed by Li[ng]bawan, what did
the
NARCOM people do, if any?
A
I told Lingbawan that I made a call. After that, they talked for
a while and then they left.cralaw:red
Q
Do you know where they proceeded to?
A
What I know is they proceeded to the gym because that is where they
asked
me to make a call.cralaw:red
Q
So, what happened after they left?
A
After 30 minutes, they came back with Gatudan Balag-ey, sir.”[24]
(Italics supplied)
Because of the vacillating
statements of Aliong, the trial court regarded his testimony as dubious
and highly suspect. Still, it should not have been dismissed
outright,
as he had been able to give an adequate explanation for his testimonial
change. Besides, he had nothing to gain from testifying that
Balag-ey
had not been with him during the alleged buy-bust operation.cralaw:red
The foregoing points
show the lack of credibility of the prosecution’s claim that Balag-ey
was
arrested while in the act of selling marijuana at Jollibee-Session Road.cralaw:red
Balag-ey also protests
the denial of his right to counsel during his custodial
investigation.
Section 12 of Article III of the Constitution provides that any person
under custodial investigation for the commission of an offense should
have
a right to independent and competent counsel at every phase of the
investigation
-- from its inception to its end.[25]
Both PO1 Natividad and
PO3 Emerson Lingbawan affirmed that Balag-ey had not been assisted by
counsel
at any stage of the investigation. During cross-examination, they
testified as follows:chanrobles virtuallaw libraryred
“Atty. Molintas [to
PO1 Natividad]:
Q
How about Gatudan, did you provide him [with] a lawyer at that time?
A
We did not provide him because he did not give his affidavit or any
confessional
statement?
Q
Is that your procedure? You only get a lawyer to assist him if you
intend
to get his confession?
A
Yes sir.cralaw:red
Q
You do not provide him a counsel so that …
A
We apprised [him of] his constitutional rights but …
Q
Yes. The question is -- you do not find it necessary or you do
not
know that the law require[s] that you provide him a lawyer?
A
But he did not require any lawyer.chanrobles virtuallaw libraryred
Q
Maybe you did not ask him to give any but do you know that the law
requires
you as a detaining officer to provide him a lawyer?
A
Yes, your Honor, we told him but …
Q
The question is, do you know that you are required to provide him a
lawyer
immediately after his arrest?
A
Yes sir.cralaw:red
Q
And despite that, you did not provide him any lawyer?
A
No more sir.cralaw:red
Q
In fact you have a very big Memorandum in your office regarding
Republic
Act 7438?
A
Yes sir.chanrobles virtuallaw libraryred
Q
And you allowed Garbo to get in touch with a lawyer and submit an
affidavit
and in fact you did not recommend that he be prosecuted?
A
Because he gave a voluntary affidavit that is why when the investigator
took it after reading the affidavit he conferred with his own lawyer.cralaw:red
Q
And that affidavit was prepared by your investigator?
A
Yes sir.cralaw:red
Q
And likewise you did not recommend the prosecution of
Aliong because he also gave his affidavit?
A
Yes sir.”[26]
x x
x
x x
x
x x x
“Atty. Dumawing [to
PO3 Lingbawan]:
Q
Between 5:00, a little past 5:00 and until the afternoon of September
29,
1998, these two accused were under your custody?
A
Yes sir.chanrobles virtuallaw libraryred
Q
And while they were under your custody they were not assisted by
counsel?
A
None sir.cralaw:red
Q
Notwithstanding the fact that you informed them of their constitutional
rights?
A
We only informed their relatives sir.”[27]
The violation of Balag-ey’s
right to counsel during his custodial investigation excludes, from the
ambit of the trial court’s evidence, his alleged extrajudicial
admission
that he was the owner of the seized marijuana.[28]chanrobles virtuallaw libraryred
Second Issue:
Sufficiency of
Prosecution Evidence
Balag-ey and Aliong
were charged with violation of Section 4 in relation to Section 21 of
RA
6425, as amended by RA 7659[29]
-- an offense they allegedly committed by “conspiring, confederating
and
mutually aiding each other, without any authority of law, [and by]
hav[ing]
in their possession and attempt[ing] to sell twenty (20) bricks of
dried
marijuana leaves/fruiting tops, a prohibited drug x x x.”
The aforementioned Section
4 penalizes “any person who, unless authorized by law, shall sell,
administer,
deliver, give away to another, distribute, dispatch in transit or
transport
any prohibited drug, or shall act as a broker in any of such
transactions.”
This provision is violated by the commission of any of the acts
specified
therein or a combination thereof.[30]
Moreover, the prevailing doctrine is that “possession of prohibited
drugs”
is a necessary element in the offense of selling them, except
where
the seller is also found in possession of another quantity of
prohibited
drugs not covered by or included in the sale and which are probably
intended
for some future dealings or use by the seller.[31]
On the other hand, the
aforecited Section 21 punishes an attempt or a conspiracy, among
others,
in the “[s]ale, administration, delivery, distribution and
transportation
of dangerous drugs.” This is one of the few instances when the
law
specifically punishes mere conspiracy.[32]chanrobles virtuallaw libraryred
Having charged the accused
with conspiracy, it was incumbent upon the prosecution to prove that
Balag-ey
and Aliong had come to an agreement concerning the possession and the
sale
of marijuana and had decided to execute the agreement.[33]
Furthermore, in a prosecution
for the sale of dangerous drugs, it is material and indispensable (1)
to
prove that the accused sold and delivered the prohibited drug to
another,
as well as to present in court the corpus delicti as evidence; and (2)
to prove that the accused knew that what was sold and delivered was a
dangerous
drug.[34]
The attempt to sell the drugs may be established by overt acts showing
that the accused knowingly commenced the commission of the crime.[35]
The flaws and the insufficiency
of the evidence against Balag-ey have been discussed earlier. We
shall now take up the sufficiency of the evidence against Aliong.cralaw:red
Aliong was not identified
by the entrapping police officers as one of those who had offered to
sell
marijuana to SPO1 Natividad. It was neither alleged nor
established
that the two had been in contact prior to the supposed buy-bust
operation.
It was not shown that the former had, at any time, known that the
contents
of the Philip Morris cigarette box were prohibited drugs. It was
not he, but his companion, who loaded the box into the baggage
compartment
of the taxi,[36]
according to the testimony of Garbo, the taxi driver. As to who
the
companion of Aliong had been was not adequately proven. When the
testimonies of the latter and of Prosecution Witness Garbo are taken
together,
it becomes reasonably doubtful that the companion referred to was
Balag-ey.cralaw:red
Hence, except for the
fact that Aliong was on board the taxi from where the box of marijuana
was seized, and that he was the one who paid extra fare to the driver
while
they waited for the return of the former’s companion, there is no
evidence
that Aliong conspired with Balag-ey and attempted to sell the
prohibited
drugs. The rule is settled that, without any other evidence, mere
presence at the scene of the crime is not by itself sufficient to
establish
conspiracy.[37]chanrobles virtuallaw libraryred
After questioning Aliong,
even the entrapping police officers initially cleared him of
complicity.
Indeed, they found no reason to indict him together with Balag-ey in
the
original Information.[38]
SPO1 Natividad, in particular, testified as follows:
“Atty. Molintas (to
PO1 Natividad):
Q
About Aliong, when was he released?
A
He spent the night in our office and then he was released after the
investigator
said that he has no knowledge of the marijuana.cralaw:red
Q
Your investigator says that he has no knowledge but this time you are
the
poseur-buyer. What was the participation of Aliong when the
negotiation
was being made?
A
According to Aliong, he only accompanied the suspect Gatudan sir.cralaw:red
Q
The question is, during the negotiation the first time you went to the
Universal Martial Arts [Gym], the truth is, he was not there?
A
He was not there sir.chanrobles virtuallaw libraryred
Q
You only saw him at Session Road?
A
Yes sir.cralaw:red
Q
Inside the taxicab?
A
Inside the taxicab sir.cralaw:red
Q
When you met Gatudan at Session Road, did Aliong alight from the
taxicab?
A
No sir.cralaw:red
Q
Did you ask the taxi driver who paid the taxi fare at that time?
A
No sir.cralaw:red
Q
Until now you do not know?
A
Yes sir.cralaw:red
Q
So, what we are made to understand is, after doing your part as
poseur-buyer,
you did not participate anymore in the investigation of the case?
A
I assisted the investigator when we inventoried the marijuana sir.chanrobles virtuallaw libraryred
Q
That’s it[?] Nothing more?
A
Nothing more sir. The investigation and the documentation, I did
not participate [therein] anymore.cralaw:red
Q
[Do you] suggest, Mr. Witness that the person you actually met at the
Universal
Martial Arts Gym and [with whom you] negotiated about the [sale] of
marijuana
was a certain Edwin Aliong?
A
No sir, Gatudan.cralaw:red
Q
[Do you] also suggest that Gatudan was not there in the morning?
A
He was there sir. The only [one] I knew is Gatudan.cralaw:red
Q
[Do you] also suggest, Mr. Witness, that at Session Road, in front of
the
Jollibee, the persons riding the taxicab were Roger [I]masa, Edwin
Aliong
and Gatudan was not there?
A
No sir, Gatudan and Aliong.”[39]
x x
x
x x
x
x x xchanrobles virtuallaw libraryred
“Atty. Dumawing [to
SPO1 Natividad]:
Q
Now, Mr. Witness, is it not a fact that before you conduct a buy-bust
operation
you subject the person or a suspect to surveillance?
A
Yes, sir.cralaw:red
Q
And in this particular case, Mr. Witness, you never subjected accused
Edwin
Aliong to surveillance?
A
No, sir.cralaw:red
Q
You also know what they call an Order of Battle. Will you tell
the
Honorable Court what that is?
A
It is a NARCOM watch list of persons who are engaged in the traffic of
drugs.cralaw:red
Q
And is it not a fact that the name of Edwin Aliong does not appear in
your
Order of Battle?chanrobles virtuallaw libraryred
A
Yes, sir.cralaw:red
Q
Mr. Witness, when this case was filed by your office with the
Prosecutor’s
Office, you only charged Gatudan Balag-ey?chanrobles virtuallaw libraryred
A
Yes, sir.cralaw:red
Q
You did not initially includ[e] Edwin Aliong?
A
Yes, sir, because to our knowledge, after the investigation was
finished
in our office, Roger Imasa revealed to us that Edwin Aliong is his
sub-agent.cralaw:red
Q
So that is the reason why you did not include him initially in the
charge,
is it not?
A
That is one reason, sir.”[40]
(Italics supplied)
The above admissions,
taken together with the acts of Aliong -- prior to, contemporaneous
with,
and subsequent to his arrest -- fail to establish any conspiracy.cralaw:red
Even the charge of illegal
possession of prohibited drugs was not established beyond reasonable
doubt.
The elements of this offense are the following: (1) the accused is in
possession
of an item or object, which is identified to be a prohibited drug; (2)
such possession is not authorized by law; and (3) the accused freely
and
consciously possessed the drug.[41]
Admittedly, the third requisite was not convincingly established by the
prosecution.chanrobles virtuallaw libraryred
In view of the lapses
in the prosecution’s case, the quantum of evidence needed to convict
Aliong
and Balag-ey -- proof beyond reasonable doubt -- has not been
adequately
established by the prosecution. Our minds cannot rest easy on
their
supposed guilt. We reiterate the conventional wisdom that it is
better
to free ten guilty persons than to convict an innocent one.[42]
Third Issue:
Buy-Bust Operation
Both appellants argue
that no buy-bust operation took place on September 28, 1998, as shown
by
the inability of the prosecution to present in court the alleged police
informant and the marked money. Likewise, they point out that
even
the prosecution’s witnesses testified that money had not changed hands
during the alleged transaction.cralaw:red
Well-established is
the rule that the presentation of a confidential informant in a
buy-bust
operation is not always required,[43]
especially when the sale was actually witnessed and adequately proved
by
other prosecution witnesses.[44]
This rule admits of exceptions, however, as when the appellant
vehemently
denies selling prohibited drugs; and when there are material
inconsistencies
in the testimonies of the arresting officers.[45]chanrobles virtuallaw libraryred
For like reason, the
presentation of the buy-bust money[46]
and proof of its actual payment[47]
-- pieces of evidence that are otherwise not indispensable -- become
necessary
if the constitutional presumption of innocence is to be overcome.
In the present case, the material inconsistencies in the testimonies of
the prosecution witness and the non-presentation of the buy-bust money
raise reasonable doubts about the occurrence of a buy-bust operation.chanrobles virtuallaw libraryred
The unrelenting drive
against illegal drugs is indeed commendable. Those who engage in
the illicit trade of marijuana and who prey on the misguided members of
society must be caught and prosecuted properly. While courts are
committed to assist the government in its campaign against illegal
drugs,
a conviction under the Dangerous Drugs Law will prosper only after the
prosecution discharges its constitutional burden to prove guilt beyond
reasonable doubt. Otherwise, this Court is likewise duty-bound to
uphold the constitutional presumption of innocence.cralaw:red
WHEREFORE, the appeal
is GRANTED, and the assailed Decision REVERSED. Appellants
Gatudan
Balag-ey and Edwin Aliong y Sungot are hereby ACQUITTED on reasonable
doubt.cralaw:red
Let them be immediately
released from their place of confinement, unless there is any other
legal
or valid cause to detain them further. The director of the Bureau
of Corrections shall report to this Court, within ten (10) days from
notice
of this judgment, on his action in obedience to this directive.
No
costs.cralaw:red
SO ORDERED.cralaw:red
Davide, Jr., C.J., (Chairman),
Ynares-Santiago, Carpio, and Azcuna, JJ., concur.
____________________________
Endnotes:
[1]
Penned by Judge Ruben C. Ayson.chanrobles virtuallaw libraryred
[2]
Assailed Decision, pp. 14-15; rollo, pp. 37-38.chanrobles virtuallaw libraryred
[3]
Signed by Prosecutor I Rolando T. Vergara and approved by City
Prosecutor
Erdolfo V. Balajadia.
[4]
Records, p. 18.chanrobles virtuallaw libraryred
[5]See
Order dated December 21, 1998; records, p. 25.
[6]
See Order dated January 21, 1999; id., p. 35.chanrobles virtuallaw libraryred
[7]
Atty. Jose Molintas for Balag-ey and Atty. George M. Dumawing Jr. for
Aliong.
[8]
See Order dated December 7, 1999; records, pp. 182-191.
[9]
Appellee’s Brief, pp. 3-5; rollo, pp. 276-278.chanrobles virtuallaw libraryred
[10]
Brief for Appellant Balag-ey’s, p. 6; id., p. 191.chanrobles virtuallaw libraryred
[11]
Brief for Appellant Aliong’s, pp. 8-10; id., pp. 231-233.chanrobles virtuallaw libraryred
[12]This
case was deemed submitted for decision on June 5, 2003, upon receipt by
the Court of appellee’s Consolidated Brief, signed by Assistant
Solicitor
General Carlos N. Ortega and Associate Solicitor Phrincess Marloween A.
Bajarias. Appellant Balag-ey’s Brief -- signed by Attys. Amelia
C.
Garchitorena, Marvin R. Osias and Beatriz Teves-de Guzman of the Public
Attorney’s Office (PAO) -- was received by this Court on February 3,
2003;
while Aliong’s Brief, signed by Atty. Bartolome L. Baldas Jr.,
was
filed on February 11, 2003. The filing of a reply brief was
deemed
waived, as none was filed within the reglementary period.chanrobles virtuallaw libraryred
[13]
Brief for Appellant Balag-ey, p. 9; rollo, p. 194. Original in
upper
case.chanrobles virtuallaw libraryred
[14]
Brief of Appellant Aliong, p. 10; id., p. 233. Original in upper
case.chanrobles virtuallaw libraryred
[15]
People v. Corre Jr., 363 SCRA 165, 176, August 15, 2001; People v.
Templa,
363 SCRA 291, 298, August 16, 2001.
[16]
People v. Doctolero Sr., 363 SCRA 404, 413, August 20, 2001.chanrobles virtuallaw libraryred
[17]
People v. Alilin, 379 SCRA 647, 650, March 21, 2002; Abuyen v. People,
371 SCRA 521, 527, December 5, 2001; People v. Nicolas, 381 Phil. 753,
758, February 4, 2000.
[18]
TSN, July 12, 1999, pp. 25-26 and 30.chanrobles virtuallaw libraryred
[19]
TSN, July 13, 1999, pp. 3-7.chanrobles virtuallaw libraryred
[20]
RTC Decision, p. 13; rollo, p. 36.
[21]
TSN, May 19, 1999, p. 22.
[22]
TSN, June 7, 1999, pp. 21-24.
[23]
Id., pp. 25-26.chanrobles virtuallaw libraryred
[24]
TSN, July 20, 1999, pp. 17-21.chanrobles virtuallaw libraryred
[25]
People v. Felixminia, 379 SCRA 567, 576, March 20, 2002.
[26]
TSN, May 19, 1999, pp. 28-29.chanrobles virtuallaw libraryred
[27]
TSN, June 15, 1999, p. 29.
[28]
TSN, May 19, 1999, p. 21.
[29]
Effective December 31, 1993.chanrobles virtuallaw libraryred
[30]
People v. Montilla, 285 SCRA 703, 715, January 30, 1998.chanrobles virtuallaw libraryred
[31]
People v. Lacerna, 344 Phil. 100, 120, September 5, 1997; People v.
Angeles,
218 SCRA 352, 364-365, February 2, 1993; People v. Catan, 205 SCRA 235,
243, January 21, 1992.
[32]
People v. Zheng Bai Hui, 338 SCRA 420, 481, August 22, 2000.chanrobles virtuallaw libraryred
[33]
The elements of conspiracy are as follows: 1) two or more persons came
to an agreement; 2) the agreement concerned the commission of a felony
or an offense; and 3) the execution of the felony or offense was
decided
upon. (People v. Lago, 411 Phil. 52, 59, June 6, 2001). See also
Article 8 of the Revised Penal Code.chanrobles virtuallaw libraryred
[34]
People v. Lacerna, supra, p. 121, citing People v. Manzano, 227 SCRA
780,
785, November 16, 1993; People v. Uy, 338 SCRA 232, 241-242,
August
16, 2000; People v. Montano, 337 SCRA 608, 618-619, August
11, 2000.chanrobles virtuallaw libraryred
[35]
Article 6 of the Revised Penal Code.chanrobles virtuallaw libraryred
[36]
TSN, June 7, 1999, p. 27.chanrobles virtuallaw libraryred
[37]
People v. Absalon, 350 SCRA 287, 297, January 25, 2001.chanrobles virtuallaw libraryred
[38]
Signed by Prosecutor II Victor I. Dizon and approved by City Prosecutor
Erdolfo V. Balajadia; records, p. 1.
[39]
TSN, May 19, 1999, pp. 30-32.chanrobles virtuallaw libraryred
[40]
TSN, May 26, 1999, pp. 3-4.
[41]
People v. Lacerna, supra.chanrobles virtuallaw libraryred
[42]
People v. Obrero, 387 Phil. 937, 956, May 17, 2000; People v.
Comesario,
366 Phil. 62, 69, April 29, 1999; People v. Geron, 346 Phil. 14, 17,
October
17,1997.
[43]
People v. Doria, 361 Phil. 595, 622, January 22, 1999.chanrobles virtuallaw libraryred
[44]
Ibid.chanrobles virtuallaw libraryred
[45]
Ibid.
[46]
People v. Fabro, 382 Phil. 166, 177, February 10, 2000; People v. Khor,
366 Phil. 762, 794, May 19, 1999; People v. Cueno, 359 Phil. 151,
162, November 16, 1998.
[47]
People v. Cuba, 336 SCRA 389, 396, July 24, 2000. |