SECOND DIVISION
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PEOPLE
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G.R. No. 175319 |
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Appellee, |
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Present: |
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CARPIO, J.,
Chairperson, |
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BRION, |
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ABAD, and |
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PEREZ, JJ. |
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JOSELITO NOQUE y GOMEZ, |
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Promulgated: |
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Appellant. |
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January 15, 2010 |
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D E C I S I O N
The
illicit trade and use of dangerous drugs destroys the moral fiber of society.
It has eroded and disrupted family life, increased the transmission of sexually
related diseases, resulted in permanent and fatal damage to the physical and
mental health, and wasted dreams, opportunities and hopes for a better
future. As an ardent sentinel of the people’s
rights and welfare, this Court shall not hesitate to dispense justice on people
who engage in such an activity.[1] The commitment to this end is exemplified in
this appeal.
The Charges
The
appeal stems from two Informations filed before the Regional Trial Court (RTC) of
That on or about January 30, 2001, in the City of Manila, Philippines,
the said accused, not having been authorized by law to sell, dispense, deliver,
transport or distribute any regulated drug, did then and there willfully,
unlawfully and knowingly sell or offer for sale, dispense, deliver, transport
or distribute 2.779 (two point seven seven nine grams) and 2.729 (two point
seven two nine grams) of white crystalline substance known as ‘shabu’
containing methamphetamine hydrochloride, which is a regulated drug.
Contrary to law.[2]
On the
other hand, the Information in Criminal Case No. 01-189459 contains the
following accusatory allegations for violation of Section 16, Article III in
relation to Section 2 (e-2) Article I of RA 6425 as amended by Batas
Pambansa (BP) Bilang 179 and as further amended by RA 7659:
That on or about January 30, 2001, in the City of Manila, Philippines,
the said accused without being authorized by law to possess or use any
regulated drug, did then and there willfully, unlawfully and knowingly have in
his possession and under his custody and control (six seven nine point two one
five grams) 679.215 grams of white crystalline substance known as ‘shabu’
containing methamphetamine hydrochloride, a regulated drug, without the
corresponding license or prescription thereof.
Contrary to law.[3]
During
his arraignment on
Version of the Prosecution
At
Senior Police Officer 4 (SPO4) Norberto Murillo, went to
Police Station No. 4 of the Western Police District (WPD) to tip off on the
drug trafficking activities of the appellant in Malate,
The
buy-bust team, together with the informant, proceeded to the aforementioned
address and upon arrival thereat, positioned themselves outside the appellant’s
house. PO1 Balais and the informant
thereafter called out the appellant, who welcomed the two and brought them to his
bedroom. The informant asked the
appellant if he had P1,000.00 worth of methamphetamine hydrochloride or
“shabu” then pointed to PO1 Balais as the actual buyer. When PO1 Balais handed the marked money to
the appellant, the latter brought out from under a table a “pranela” bag
from which he took two plastic sachets containing white crystalline granules
suspected to be shabu. The informant slipped out of the house as the
pre-arranged signal to the buy-bust team that the sale had been consummated.
After
seeing the informant leave, the team entered appellant’s house. SPO4 Murillo frisked the appellant and
recovered the buy-bust money. He also confiscated the “pranela” bag that
contained a large quantity of crystalline granules suspected to be shabu. The two persons who were in a “pot session”
with the appellant at the time of the raid were likewise arrested and brought to
the WPD Station No. 9 for investigation.
The
seized articles were taken to the police station and submitted to the crime
laboratory for examination to determine the chemical composition of the
crystalline substance. Police Inspector (P/Insp.)
and Forensic Chemical Officer Miladenia Tapan examined one self-sealing
transparent plastic bag with markings “JNG” containing 679.215 grams of white
crystalline granules; and two heat-sealed transparent plastic sachets each
containing white crystalline substance, pre-marked “JNG-1” weighing 2.779 grams
and “JNG-2”weighing 2.729 grams. The
qualitative examinations yielded positive results for ephedrine, a regulated
drug.
Version of the Defense
The appellant
gave a different version of the events that transpired. He testified that he was in his house in the
evening of
Ruling of the Regional Trial Court
In its Decision[4] dated
The
trial court also held that while the Informations alleged methamphetamine
hydrochloride as the drug seized from the appellant, the drug actually
confiscated which was ephedrine, is a precursor of methamphetamine, i.e., methamphetamine
is an element of, and is present in ephedrine. Ephedrine is the raw material while
methamphetamine is its refined product. Both
drugs have the same chemical formula except for the presence of a single atom
of oxygen which when removed by means of chemical reaction changes ephedrine to
methamphetamine. Thus, the trial court ruled that the appellant can be
convicted of the offenses charged, which are included in the crimes
proved. The trial court further held
that under Section 4, Rule 120 of the Rules of Court, a variance in the offense
charged in the complaint or information and that proved shall result in the
conviction for the offense charged which is included in the offense proved.
In
determining the quantity of methamphetamine hydrochloride upon which the proper
imposable penalty on the appellant must be based, the trial court gave credence
to the testimony of prosecution witness, P/Insp. Tapan that a gram of ephedrine
would produce ½ gram of methamphetamine when refined.[5]
Conformably,
the methamphetamine contents of 5.508 grams[6] of
ephedrine in Criminal Case No. 01-189458 would be 2.754 grams. Moreover, the methamphetamine contents of
679.215 grams of ephedrine in Criminal Case No. 01-189459 would be 339.6075
grams.
The dispositive portion of the Decision of the trial
court reads:
WHEREFORE, judgment is rendered:
In Criminal Case No. 01-189458, pronouncing accused JOSELITO NOQUE y
GOMEZ guilty beyond reasonable doubt of selling a net quantity of 2.754 grams
of methamphetamine hydrochloride without
authority of law, penalized under Section 15 in relation to Section 20 of
Republic Act No. 6425, as amended, and sentencing the said accused to the
indeterminate penalty ranging from four (4) years and two (2) months of prision correccional, as minimum,
to six (6) years and one (1) day of prision
mayor, as maximum, and to pay the costs.
In Criminal Case No. 01-189459, pronouncing the same accused JOSELITO
NOQUE y GOMEZ guilty beyond reasonable doubt of possession of a net quantity of
339.6075 grams of methamphetamine hydrochloride without license or
prescription, penalized under Section 16 in relation to Section 20 of Republic
Act No. 6425, as amended, and sentencing the said accused to the penalty of reclusion perpetua and to pay a
fine of P5,000,000.00, plus the costs.
In the service of his sentences, the full time during which the accused
had been under preventive imprisonment should be credited in his favor provided
that he had agreed voluntarily in writing to abide with the same disciplinary
rules imposed on convicted prisoner.
Otherwise, he should be credited with four-fifths (4/5) only of the time
he had been under preventive imprisonment.
Exhibits “B” and “C” are ordered confiscated and forfeited in favor of
the government. Within ten (10) days
following the promulgation of this judgment, the Branch Clerk of this Court, is
ordered to turn over, under proper receipt, the regulated drug involved in
these cases to the Philippine Drug Enforcement Agency (PDEA) for proper
disposal.
SO ORDERED.[7]
Ruling of
the Court of Appeals
The CA affirmed the trial court’s judgment. It held that the designations in the Informations
are for violations of Sections 15 and 16 of RA 6425 that define and penalize
the crimes of illegal sale and illegal possession of regulated drugs. While the allegations in the Informations refer
to unauthorized sale and possession of “shabu” or methamphetamine
hydrochloride, and not of ephedrine, the allegations are however immediately
followed by the qualifying phrase “which is a regulated drug.” Stated differently, the CA held that the
designations and allegations in the informations are for the crimes of illegal
sale and illegal possession of regulated drugs.
There being no dispute that ephedrine is a regulated drug, pursuant to Board
Resolution No. 2, Series of 1988, issued by the Dangerous Drugs Board on
However, the CA modified the penalty imposed by the trial
court in Criminal Case No. 01-189458. It
held that in the absence of any mitigating or aggravating circumstances in this
case, the penalty should be imposed in its medium period, ranging from six
months of arresto mayor, as minimum,
to two years, four months and one day of prision
correccional, as maximum. Thus, the
dispositive portion of the Decision of the CA reads:
WHEREFORE, premises considered, the February 28, 2003 Decision of the
Regional Trial Court of Manila, Branch 35, is hereby AFFIRMED with the
MODIFICATION that in Criminal Case No. 01-189458, accused-appellant is hereby
sentenced to suffer the indeterminate penalty of six (6) months of arresto mayor, as minimum, to two (2)
years, four (4) months and one (1) day of prision
correccional, as maximum.
SO ORDERED.[9]
Our Ruling
The
appeal is bereft of merit.
The prosecution’s evidence satisfactorily proved that appellant is
guilty of illegal sale of a dangerous drug.
The
prosecution successfully proved that appellant violated Section 15, Article III
of RA 6425. The prosecution’s evidence
established the concurrence of the elements of an illegal sale of a dangerous
drug, to wit: (1) the identity of the buyer and seller, object, and
consideration; and (2) the delivery of the thing sold and the payment therefor.[10]
In the
instant case, the police officers conducted a buy-bust operation after
receiving confirmed surveillance reports that the appellant was engaged in the
illicit sale of dangerous drugs at P1,000.00
worth of white crystalline substance alleged to be shabu. The police officer received this illegal
merchandise after giving the appellant the marked money as payment. Undoubtedly, the appellant is guilty of
selling a dangerous drug.
The prosecution’s evidence satisfactorily proved that appellant
illegally possessed a dangerous drug.
The
prosecution was also successful in proving that appellant violated Section 16,
Article III of RA 6425. It adduced
evidence that established the presence of the elements of illegal possession of
a dangerous drug. It showed that (1) the
appellant was in possession of an item or an object identified to be a
prohibited or regulated drug, (2) such possession is not authorized by law, and
(3) the appellant was freely and consciously aware of being in possession of
the drug.[11]
The
police buy-bust team apprehended the appellant for the sale of a white
crystalline substance then proceeded to search the premises. They found a large quantity of the same
substance inside the bag that contained the two sachets of the regulated drug
sold to PO1 Balais. Appellant did not
offer any explanation why he is in custody of the said substance. Neither did the appellant present any
authorization to possess the same. “Mere
possession of a regulated drug per se constitutes prima facie evidence of knowledge or animus possidendi sufficient to convict an accused absent a
satisfactory explanation of such possession – the onus probandi is shifted to the accused, to explain the absence of
knowledge or animus possidendi.”[12] With the burden of evidence shifted to the
appellant, it was his duty to explain his innocence on the regulated drug
seized from his person. However, as
already mentioned, he did not offer any excuse or explanation regarding his
possession thereof.
There is no evidence showing that the police officers are actuated by
ill motives.
Likewise
to be considered against the appellant is his failure to present evidence
imputing evil motive on the part of the police officers who participated in the
entrapment operation to testify falsely against him. “Where there is no evidence that the
principal witness of the prosecution was actuated by ill or devious motive, the
testimony is entitled to full faith and credit.”[13]
Appellant’s right to be informed of the nature and cause of the
accusations was not violated.
The only
issue raised by the appellant in this petition is that his conviction for the
sale and possession of shabu, despite the fact that what was established
and proven was the sale and possession
of ephedrine, violated his constitutional right to be informed of the nature and
cause of the accusations against him since the charges in the Informations are
for selling and possessing methamphetamine hydrochloride.
We agree with the findings of the CA and the trial court,
as well as the testimony of the forensic chemical officer, that the drug known
as ephedrine has a central nervous stimulating effect similar to that of methamphetamine. In fact, ephedrine is an important precursor
used in the clandestine synthesis of methamphetamine, which in crystallized form
is methamphetamine hydrochloride.
Thus, on
Moreover, as correctly observed by CA, the offenses
designated in the Informations are for violations of Sections 15 and 16 of RA
6425, which define and penalize the crimes of illegal sale and possession of
regulated drugs. The allegations in the Informations
for the unauthorized sale and possession of “shabu” or methamphetamine
hydrochloride are immediately followed by the qualifying phrase “which is a
regulated drug”. Thus, it is clear that
the designations and allegations in the Informations are for the crimes of
illegal sale and illegal possession of regulated drugs. Ephedrine has been classified as a regulated
drug by the Dangerous Drugs Board in Board Resolution No. 2, Series of 1988.
The CA
correctly ruled that Sections 4 and 5, Rule 120 of the Rules of Court,[14] can be
applied by analogy in convicting the appellant of the offenses charged, which are
included in the crimes proved. Under
these provisions, an offense charged is necessarily included in the offense
proved when the essential ingredients of the former constitute or form part of
those constituting the latter. At any
rate, a minor variance between the information and the evidence does not alter
the nature of the offense, nor does it determine or qualify the crime or
penalty, so that even if a discrepancy exists, this cannot be pleaded as a
ground for acquittal.[15] In other words, his right to be informed of
the charges against him has not been violated because where an accused is
charged with a specific crime, he is duly informed not only of such specific
crime but also of lesser crimes or offenses included therein.[16]
The
Penalties
In
Criminal Case No. 01-189458, appellant is found guilty of violation of Section
15, Article III of RA 6425, as amended.
We explained in People
v. Isnani[17] that:
Under Section 15, Article III in relation to the second
paragraph of Sections 20 and 21 of Article IV of Republic Act No. 6425, as
amended by Section 17 of R.A. No. 7659, the imposable penalty of illegal sale
of a regulated drug (shabu), less
than 200 grams, as in this case, is prision
correccional to reclusion
perpetua. Based on the quantity of
the regulated drug subject of the offense, the imposable penalty shall be as
follows:
QUANTITY IMPOSABLE
PENALTY
Less than one (1) gram
to 49.25 grams prision correccional
49.26 grams to 98.50 grams prision mayor
98.51 grams to 147.75 grams reclusion temporal
147.76 grams to 199 grams reclusion perpetua
The quantity of shabu
involved is 0.060 grams. Pursuant to
the second paragraph of Sections 20 and 21 of Article IV of R.A. No. 6425, as
amended by Section 17 of R.A. No. 7659 (for unauthorized sale of less than 200
grams of shabu) and considering our
ruling in the above case, the imposable penalty is prision correccional.
Applying the Indeterminate Sentence Law, and there being
no aggravating or mitigating circumstance that attended the commission of the
crime, the maximum period is prision
correccional in its medium period which has a duration of 2 years, 4 months
and 1 day to 4 years and 2 months. The
minimum period is within the range of the penalty next lower in degree which is
arresto mayor, the duration of which
is 1 month and 1 day to 6 months. Hence,
appellant should be sentenced to 6 months of arresto mayor, as minimum, to 2 years, 4 months and 1 days of prision correctional in its medium
period, as maximum.
In
Criminal Case No. 01-189458, the quantity of the prohibited drug seized from
appellant is 2.754 grams. Accordingly,
the Court of Appeals correctly modified the penalty imposed by the trial court
to six months of arresto mayor, as
minimum, to two years, four months and
one day of prision correccional, as
maximum.
As
regards Criminal Case No. 01-189459, Section 16, Article III of RA 6425, as
amended, provides for the penalty of reclusion
perpetua to death and a fine ranging from P500,000.00 to P10
million upon any person who shall possess or use any regulated drug without the
corresponding license or prescription.
Section 20 of RA 6425, as amended, further provides that the penalty
imposed for the offense under Section 16, Article III shall be applied if the
dangerous drug involved is 200 grams or more of shabu. In this case, the
appellant was found in illegal possession of 339.6075 grams of prohibited
drug. Therefore, both the trial court
and the Court of Appeals correctly imposed the penalty of reclusion perpetua and a fine of P500,000.00 to appellant.
WHEREFORE, the
Decision of the Court of Appeals in CA-G.R. CR-H.C. No. 00684 is AFFIRMED.
SO ORDERED.
MARIANO C.
Associate Justice
WE
CONCUR:
ANTONIO T. CARPIO
Associate Justice
Chairperson
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ARTURO D. BRION Associate
Justice |
ROBERTO A. ABAD Associate
Justice |
JOSE P. PEREZ
Associate Justice
ATTESTATION
I attest that the
conclusions in the above Decision had been reached in consultation before the
case was assigned to the writer of the opinion of the Court’s Division.
ANTONIO T.
CARPIO
Associate Justice
Chairperson, Second Division
C
E R T I F I C A T I O N
Pursuant to Section 13,
Article VIII of the Constitution, and the Division Chairperson’s attestation,
it is hereby certified that the conclusions in the above Decision had been
reached in consultation before the case was assigned to the writer of the
opinion of the Court’s Division.
REYNATO S. PUNO
Chief
Justice
[1] See People v.
[2] Records, p. 2.
[3]
[4]
[5] TSN,
[6] 2.729
grams plus 2.779 grams.
[7] Records, pp. 152-153.
[8] CA rollo, pp. 109-110.
[9] Records, p. 17.
[10] People v. Lee Hoi Ming, 459 Phil.
187, 193 (2003).
[11] People v. Tiu Won Chua, 453 Phil.
177, 186 (2003).
[12] People v. Tee, 443 Phil. 521, 551 (2003).
[13] People v. Bocalan, 457 Phil. 472, 482
(2003).
[14] Sec. 4. Judgment in case of variance between allegation and proof. – When
there is a variance between the offense charged in the complaint or
information, and that proved, and the offense charged is included in or
necessarily includes the offense proved, the accused shall be convicted of the
offense proved which is included in the offense charged, or of the offense charged
which is included in the offense proved.
Sec. 5. When an offense includes or is included in
another. – An offense charged necessarily includes the offense proved when
some of the essential elements or ingredients of the former, as alleged in the
complaint or information, constitute the latter. An offense charged is necessarily included in
the offense proved, when the essential ingredients of the former constitute or
form part of those constituting the latter.
[15] People v. Bunsol, 159 Phil. 846, 851
(1975).
[16] See People v. Villamar, 358 Phil.
886, 894 (1998).
[17] G.R. No. 133006, June 9, 2004, 431 SCRA 439, 456-457, citing People v. Tira, G.R. No. 139615, May 28, 2004, 430 SCRA 134.