People v. Balag-ey : 141532 : April 14, 2004 : J. Panganiban : First
Division : Decision
[G.R. NO. 141532.
April 14, 2004]
PEOPLE OF THE
PHILIPPINES, Appellee, v.
GATUDAN BALAG-EY and EDWIN ALIONG y
D E C I S I O N
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.
Gatudan Balag-ey and Edwin Aliong appeal the October 20, 1999
Decision1 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.
dispositive portion of the assailed Decision reads:chanroblesvirtua1awlibrary
"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.
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.
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) chanroblesvirtuallawlibrary
Appellants were charged in an Amended Information3 dated December 9, 1998, as follows:chanroblesvirtua1awlibrary
That on or about the 28thday 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, 14thNarcotics Regional Office, who acted as poseur buyer, for
P1,000. 00 per
kilo, in violation of the aforecited provision of law.4 cralawred
During their respective arraignments on December 21, 19985 and January 21, 1999,6 appellants, with the assistance of their counsels de parte,7 pleaded not guilty to the charge.
trial in due course, the court a quorendered the assailed Decision.
denied appellants Motion for Reconsideration.8
Version of the Prosecution
In its Brief, the Office of the Solicitor General (OSG) presents
the prosecutions version of the facts as follows:chanroblesvirtua1awlibrary
About 10:30 in the morning of September 28, 1998, the 14thNarcotics 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.
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.
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
P1,000. 00 per kilo.
agreed to meet at five in the afternoon in front of Jollibee at the Session
The buy-bust team was alerted and
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.
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.
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
After confirming the
contents, SPO1 Natividad gave the pre-arranged signal by removing his bull cap.
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
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.
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.
Preliminary findings of Alma Margarita Villaseor, 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) chanroblesvirtuallawlibrary
Version of the
Vehemently denying that he was arrested during the alleged buy-bust
operation, Appellant Balag-ey states his version of the facts in this manner:chanroblesvirtua1awlibrary
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.
policemen immediately handcuffed him, and brought him to the NARCOM
Upon [his] arrival at the
NARCOM office, he saw Roger Imasa and accused-appellant Edwin Aliong in
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
However, the NARCOM agents
persisted and continued to inquire for the identity of the alleged supplier of
He was even threatened
that he will rot in jail, if he failed to disclose the identity of the
During his custody,
accused Balag-ey was never informed of his constitutional rights and he was not
provided with any counsel.10 cralawred
For his part, Appellant Aliong narrates the facts in this wise:chanroblesvirtua1awlibrary
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;chanroblesvirtuallawlibrary
2. He knows one Roger
Imasa, a known asset of the
x x x NARCOM,
his kumpadreand one of the Martial Arts
instructors at the Universal Martial Arts Organization;chanroblesvirtuallawlibrary
3. Likewise, he knows his
co-accused, Gatudan Balag-ey.
Balag-ey is his friend way back during the 1980s;chanroblesvirtuallawlibrary
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;chanroblesvirtuallawlibrary
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.
6. He then told Gatudan
that he hates that kind of job.
advised Gatudan to avoid that kind of job because that is difficult;chanroblesvirtuallawlibrary
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;chanroblesvirtuallawlibrary
8. Roger Imasa then told
him to introduce him to Gatudan.
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;chanroblesvirtuallawlibrary
9. In the afternoon of
September 28, 1998, Roger Imasa, the NARCOM [a]sset, convinced him to tell
Gatudan to go somewhere.
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];chanroblesvirtuallawlibrary
10. Roger then loaded the
[carton] in an [FX] Taxi. [Thereafter,] Roger told the taxi driver to bring
them to the DPS Compound.
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]
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;chanroblesvirtuallawlibrary
11. After the men who
introduced themselves as police officers came inside the taxi, Roger Imasa was
nowhere to be found.
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;chanroblesvirtuallawlibrary
12. He was thereafter told
to just relax.
Lingbawan then convinced him to testify that Gatudan Balag-ey was with him
inside the taxi.
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;chanroblesvirtuallawlibrary
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;chanroblesvirtuallawlibrary
14. He was then made to
stay at the NARCOM Office.
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) chanroblesvirtuallawlibrary
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. 82grams to the poseur-buyer
-- SPO1 Natividad.
In the case of Balag-ey, the court a quo found it difficult to believe that police operatives would
plant evidence against him.
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).
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-eys marijuana transaction.
Hence, this appeal.12
Appellant Balag-ey raises the following supposed errors for our
The trial court erred in giving full weight
and credence to the testimonies of the arresting officers despite glaring
inconsistencies and improbabilities.
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 cralawred
Appellant Aliong, on the other hand, alleges the following
Whether or not the honorable trial court
was correct in convicting the accused despite the conflicting testimonies of
the prosecution witnesses.
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.
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
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
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
Roger Imasa, was not presented as a witness.
Whether or not the honorable trial court is
correct in convicting the accused despite clear and hard evidence that no buy-bust operation
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 cralawred
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 Courts Ruling
The appeal is meritorious.
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
that he was arrested at the Universal Martial Arts Gym located on Zandueta
As a rule, the trial courts findings of fact and conclusions on
the credibility of witnesses are accorded high respect15 and due weight,16 unless it has overlooked material and relevant points that would have led it to
In the present case, however,
the RTC committed glaring factual oversights that impel us to depart from this general
The witnesses of Balag-ey -- Diosdado Mapala18 and Angie Liza Ladiwan19 -- 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
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:chanroblesvirtua1awlibrary
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.
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.
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)cralawlibrary
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
The police officer testified on
direct examination as follows:chanroblesvirtua1awlibrary
Prosecutor Vergara [to SPO1 Natividad]:chanroblesvirtua1awlibrary
QAside from physical
examination, did you bring him anywhere else?chanroblesvirtualawlibrary
ANo more, sir.
QHe was not brought
back to the gymnasium, Mr. Witness.
No sir.21 (Italics supplied)cralawlibrary
Moreover, Garbo, the taxi driver, categorically said that when
his taxi was hailed on the afternoon of September 28, 1998, Balag-ey was not
testified that the police officers had not gone to the Universal Martial Arts
Gym after that incident.
portions of his testimony are herein quoted:chanroblesvirtua1awlibrary
QYou mean you do not know
the identity of the person who was with Aliong at that time he was arrested?chanroblesvirtualawlibrary
QYou cannot describe him
to be a short person who is with dark complexion?chanroblesvirtualawlibrary
ASomewhat dark and short,
QWhen Edwin Aliong was
arrested in Session [R]oad, was this companion of his not brought to the NARCOM
QDo you know where he went
after Aliong was arrested?chanroblesvirtualawlibrary
QAside 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?chanroblesvirtualawlibrary
QYou said you went to
Hilltop with the NARCOM officers.
the Hilltop where you went, have you seen this Universal Martial Arts Gym?
ANo x x x, sir.
QAnyway, the NARCOM
officers told you to wait and after some time, they came back, is that your
QWhen they came back and
boarded your vehicle, they have another person or they arrested another person,
is that correct?chanroblesvirtualawlibrary
AI did not notice, sir.
QThis person you
mentioned a while ago who identified himself as Gatudan Balag-ey, you said that
you saw him at the Fiscals Office when you were investigated, would that be
QThat was the first
time you saw him, would that be correct?
QYou did not see him at
that time of the arrest of Edwin Aliong?
AInside the taxi sir,
QYou mean when Edwin
Aliong was arrested, Gatudan Balag-ey was not inside the taxicab?chanroblesvirtualawlibrary
ANo x x x, sir.
QAnd 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?chanroblesvirtualawlibrary
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
But his features, it is not like him.
QIn fact, you testified on
this matter before Fiscal Vergara when you were investigated in his office,
would that be correct?chanroblesvirtualawlibrary
QCould you tell the Court
who prepared that Affidavit which you identified earlier as your Affidavit?chanroblesvirtualawlibrary
AIt was prepared at the
QAfter they prepared that,
they released you on the same date on September 28, 1998, would that be
QIn other words, you were
made to sleep at the NARCOM office on September 28, 1998?chanroblesvirtualawlibrary
AI did not sleep there,
QSo where did you sleep on
the night of September 28, 1998?chanroblesvirtualawlibrary
AIn our house, sir.
QAt the NARCOM office,
you said earlier that you never met Gatudan Balag-ey, would that be correct?
QIn your Affidavit, a
name Gatudan Balag-ey was indicated, do you know who included this name Gatudan
in your Affidavit?
AThe person who
investigated me whose name I do not know wrote that, sir.
QBecause the truth is,
you never knew Gatudan Balag-ey and you never met him on September 28, 1998,
Yes sir.22 cralawred
x x x
QSo the 6thparagraph 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,
AYes sir because when I
was relating, they were typing it.
QNow, 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?
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
He testified thus:chanroblesvirtua1awlibrary
QSo, after you arrived at
the NARCOM Office at the DPS Compound, what happened, if any?chanroblesvirtualawlibrary
AThey told me, Edwin,
Then they talked to each
QDo you know what they
were talking about?chanroblesvirtualawlibrary
ANo, sir, because I went
QWhat happened after that?chanroblesvirtualawlibrary
AAfter they talked, Li[ng]bawan
QDo you remember for how
long they were talking?chanroblesvirtualawlibrary
AAbout more than 5
QAnd where were you during
all these 5 minutes that they were talking?chanroblesvirtualawlibrary
AI was outside, sir.
AOutside of the NARCOM
QSo, when this Li[ng]bawan
finally called you, what did he tell you, if any?chanroblesvirtualawlibrary
convincing me to testify that Gatudan Balag-ey was with me inside the taxi.
QWhat did you say to his
proposal, Mr. Witness?chanroblesvirtualawlibrary
AI refused because I told
him Gatudan Balag-ey was not my companion.
QWhat was the response of
Li[ng]bawan when you refused?chanroblesvirtualawlibrary
AHe 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
And he told me that it was
already confirmed that Gatudan Balag-ey is a pusher and he asked me to
QWhat else did he tell
you, if any, in order to convince you?chanroblesvirtualawlibrary
AHe told me that if I
cooperate, I will be officially included as an asset.
ANo more, sir.
QHe did not threaten
He told me
that if I dont cooperate, I will be implicated just the same.
QSo, what was your
response to Li[ng]bawan when he said that?chanroblesvirtualawlibrary
AI told him that Gatudan
Balag-ey might take revenge against me.
QWhen you told that to Li[ng]bawan,
what did he say, if any?chanroblesvirtualawlibrary
AHe told me not to worry
because they will take care of me.
QSo, what followed next,
AWhen he told me that, I
agreed to be an asset [and] to say that Gatudan Balag-ey was with me inside the
QWhy did you finally agree
to testify falsely against Gatudan Balag-ey?chanroblesvirtualawlibrary
ABecause 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.
QMr. Witness, you executed
an [a]ffidavit earlier marked by the prosecution as Exhibit H. Who prepared
AThe NARCOM officers,
QWho particularly among
the NARCOM officers?chanroblesvirtualawlibrary
AWhat 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.
QDid you understand all
the contents of this [A]ffidavit of yours?chanroblesvirtualawlibrary
ANo sir, only the first
QWhat particular part of
this [A]ffidavit did you understand, Mr. Witness?chanroblesvirtualawlibrary
AOnly 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
QBy the way, what is your
highest educational attainment, Mr. Witness?chanroblesvirtualawlibrary
ASecond year high school,
QNow, Mr. Witness, are the
contents of this [A]ffidavit true as far as you know?chanroblesvirtualawlibrary
QNow, Mr. Witness,
despite knowing that the contents of this [A]ffidavit are not true, why did you
ABecause the NARCOM
officer told me that if I will not sign it, I will be implicated.
COURT: (to witness)
QDid 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?chanroblesvirtualawlibrary
AWhat I agreed with Roger
Imasa was to bring that carton of marijuana to the NARCOM office, sir.
QMr. Witness, have you
seen the contents of that box?chanroblesvirtualawlibrary
QDid you ever personally
hold that box?chanroblesvirtualawlibrary
Witness, you finally agreed to testify against Gatudan Balag-ey.
What did Li[ng]bawan do, if any, after that?
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.
QWhat did you do after
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.
QSo, after you called your
gym, as instructed by Li[ng]bawan, what did the NARCOM people do, if any?chanroblesvirtualawlibrary
AI told Lingbawan that I
made a call.
After that, they talked
for a while and then they left.
QDo you know where they
AWhat I know is they
proceeded to the gym because that is where they asked me to make a call.
QSo, what happened
after they left?
AAfter 30 minutes,
they came back with Gatudan Balag-ey, sir.
24 (Italics supplied)cralawlibrary
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
The foregoing points show the lack of credibility of the
prosecutions claim that Balag-ey was arrested while in the act of selling
marijuana at Jollibee-Session Road.
Balag-ey also protests the denial of his right to counsel during his
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 everyphase
of the investigation -- from its inception to its end.25 cralawred
Both PO1 Natividad and PO3 Emerson Lingbawan affirmed that
Balag-ey had not been assisted by counsel at any stage of the
cross-examination, they testified as follows:chanroblesvirtua1awlibrary
Atty. Molintas [to PO1 Natividad]:chanroblesvirtua1awlibrary
QHow about Gatudan, did
you provide him [with] a lawyer at that time?chanroblesvirtualawlibrary
AWe did not provide him
because he did not give his affidavit or any confessional statement?chanroblesvirtualawlibrary
QIs that your procedure?
You only get a lawyer to assist him if you intend to get his confession?chanroblesvirtualawlibrary
QYou do not provide him a
counsel so that
AWe apprised [him of] his
constitutional rights but
The question is -- you do not find it
necessary or you do not know that the law require[s] that you provide him a
ABut he did not require
QMaybe 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?chanroblesvirtualawlibrary
AYes, your Honor, we told
QThe question is, do you
know that you are required to provide him a lawyer immediately after his
QAnd despite that, you did
not provide him any lawyer?chanroblesvirtualawlibrary
ANo more sir.
QIn fact you have a very
big Memorandum in your office regarding Republic Act 7438?chanroblesvirtualawlibrary
QAnd 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?chanroblesvirtualawlibrary
ABecause he gave a
voluntary affidavit that is why when the investigator took it after reading the
affidavit he conferred with his own lawyer.
QAnd that affidavit was
prepared by your investigator?chanroblesvirtualawlibrary
QAnd likewise you did not
recommend the prosecution ofAliong
because he also gave his affidavit?chanroblesvirtualawlibrary
AYes sir.26 cralawred
x x x
Atty. Dumawing [to PO3 Lingbawan]:chanroblesvirtua1awlibrary
QBetween 5:00, a little
past 5:00 and until the afternoon of September 29, 1998, these two accused were
under your custody?chanroblesvirtualawlibrary
QAnd while they were under
your custody they were not assisted by counsel?chanroblesvirtualawlibrary
QNotwithstanding the fact
that you informed them of their constitutional rights?chanroblesvirtualawlibrary
AWe only informed their
relatives sir.27 cralawred
The violation of Balag-eys right to counsel during his custodial
investigation excludes, from the ambit of the trial courts evidence, his alleged
extrajudicial admission that he was the owner of the seized marijuana.28
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 765929 -- 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 cralawred
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 cralawred
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
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 delictias 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 cralawred
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.
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
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.
testimonies of the latter and of Prosecution Witness Garbo are taken together, it
becomes reasonably doubtful that the companion referred to was Balag-ey.
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 formers 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 cralawred
After questioning Aliong, even the entrapping police officers
initially cleared him of complicity.
they found no reason to indict him together with Balag-ey in the original
Information.38 SPO1 Natividad, in particular, testified as follows:chanroblesvirtua1awlibrary
Atty. Molintas (to PO1 Natividad) :chanroblesvirtua1awlibrary
QAbout Aliong, when was he
AHe spent the night in
our office and then he was released after the investigator said that he has no
knowledge of the marijuana.
QYour 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?chanroblesvirtualawlibrary
AAccording to Aliong, he
only accompanied the suspect Gatudan sir.
QThe question is,
during the negotiation the first time you went to the Universal Martial Arts
[Gym], the truth is, he was not there?
AHe was not there sir.
QYou only saw him at
QInside the taxicab?
AInside the taxicab
QWhen you met Gatudan
at Session Road, did Aliong alight from the taxicab?
QDid you ask the taxi
driver who paid the taxi fare at that time?chanroblesvirtualawlibrary
QUntil now you do not
QSo, 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?chanroblesvirtualawlibrary
AI assisted the
investigator when we inventoried the marijuana sir.
QThats it[?] Nothing
ANothing more sir.
The investigation and the documentation, I
did not participate [therein] anymore.
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
ANo sir, Gatudan.
Q[Do you] also suggest
that Gatudan was not there in the morning?chanroblesvirtualawlibrary
AHe was there sir.
The only [one] I knew is Gatudan.
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?chanroblesvirtualawlibrary
ANo sir, Gatudan and
x x x
Atty. Dumawing [to SPO1 Natividad]:chanroblesvirtua1awlibrary
QNow, Mr. Witness, is it
not a fact that before you conduct a buy-bust operation you subject the person
or a suspect to surveillance?chanroblesvirtualawlibrary
QAnd in this particular
case, Mr. Witness, you never subjected accused Edwin Aliong to surveillance?chanroblesvirtualawlibrary
QYou also know what they
call an Order of Battle.
Will you tell
the Honorable Court what that is?chanroblesvirtualawlibrary
AIt is a NARCOM watch
list of persons who are engaged in the traffic of drugs.
QAnd is it not a fact that
the name of Edwin Aliong does not appear in your Order of Battle?chanroblesvirtualawlibrary
QMr. Witness, when this
case was filed by your office with the Prosecutors Office, you only charged
QYou did not initially includ[e]
AYes, 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.
QSo that is the reason why
you did not include him initially in the charge, is it not?chanroblesvirtualawlibrary
AThat is one reason,
sir.40 (Italics supplied)cralawlibrary
The above admissions, taken together with the acts of Aliong --
prior to, contemporaneous with, and subsequent to his arrest -- fail to
establish any conspiracy.
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
In view of the lapses in the prosecutions 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
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
prosecutions witnesses testified that money had not changed hands during the
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 cralawred
For like reason, the presentation of the buy-bust money46 and proof of its actual payment47 -- 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.
The unrelenting drive against illegal drugs is indeed
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
Otherwise, this Court
is likewise duty-bound to uphold the constitutional presumption of innocence.
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.
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.
(Chairman), Ynares-Santiago, Carpio, and Azcuna, JJ., concur.
Penned by Judge Ruben C. Ayson.
Assailed Decision, pp. 14-15; rollo, pp. 37-38.
Signed by Prosecutor I Rolando T. Vergara and approved by City Prosecutor
Erdolfo V. Balajadia.
Order dated December 21, 1998;
records, p. 25.
Order dated January 21, 1999; id
Atty. Jose Molintas for Balag-ey and Atty. George M. Dumawing Jr. for Aliong.
Order dated December 7, 1999;
records, pp. 182-191.
Appellees Brief, pp. 3-5; rollo
, pp. 276-278.
Brief for Appellant Balag-eys, p. 6; id
Brief for Appellant Aliongs, pp. 8-10; id
case was deemed submitted for decision on June 5, 2003, upon receipt by the
Court of appellees Consolidated Brief, signed by Assistant Solicitor General
Carlos N. Ortega and Associate Solicitor Phrincess Marloween A. Bajarias.
Appellant Balag-eys Brief -- signed by
Attys. Amelia C. Garchitorena, Marvin R. Osias and Beatriz Teves-de Guzman of
the Public Attorneys Office (PAO) -- was received by this Court on February 3,
2003; while Aliongs
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.
Brief for Appellant Balag-ey, p. 9; rollo
, p. 194.
Original in upper case.
Brief of Appellant Aliong, p. 10; id
p. 233. Original in upper case.
17 People v. Alilin
379 SCRA 647, 650, March 21, 2002; Abuyen v. People
SCRA 521, 527, December 5, 2001; People v. Nicolas
, 381 Phil. 753, 758, February 4, 2000.
TSN, July 12, 1999, pp. 25-26 and 30.
TSN, July 13, 1999, pp. 3-7.
RTC Decision, p. 13; rollo, p. 36.
TSN, May 19, 1999, p. 22.
TSN, June 7, 1999, pp. 21-24.
TSN, July 20, 1999, pp. 17-21.
TSN, May 19, 1999, pp. 28-29.
TSN, June 15, 1999, p. 29.
TSN, May 19, 1999, p. 21.
Effective December 31, 1993.
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.
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
Article 8 of the
Revised Penal Code.
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,
618-619, August 11, 2000.
Article 6 of the Revised Penal Code.
TSN, June 7, 1999, p. 27.
Signed by Prosecutor II Victor I. Dizon and approved by City Prosecutor Erdolfo
V. Balajadia; records, p. 1.
TSN, May 19, 1999, pp. 30-32.
TSN, May 26, 1999, pp. 3-4.
41 People v. Lacerna
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,
43 People v. Doria
, 361 Phil. 595, 622,
January 22, 1999.
46 People v. Fabro
, 382 Phil. 166, 177,
February 10, 2000; People v. Khor,
762, 794, May 19, 1999; People v. Cueno
, 359 Phil. 151, 162,
November 16, 1998.
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