533 Phil. 227
CALLEJO, SR., J.:
That on or about August 13, 2001, in the Municipality of Gonzaga, province of Cagayan, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously have in his possession and under his control and custody one (1) brick of Marijuana fruiting tops weighing 831.91 grams wrapped in a newspaper which gave POSITIVE results for the tests of marijuana, a prohibited drug, the said accused knowing fully well and aware that it is prohibited for any person to, unless authorized by law, to possess or use any prohibited drug.Upon the other hand, the accusatory portion of the Information in Criminal Case No. 08-1344 for violation of Section 16, Article III of the same law reads:
CONTRARY TO LAW.
That on or about August 13, 2001, in the Municipality of Gonzaga, province of Cagayan, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously have in his possession and under his control and custody two (2) small heat-sealed transparent plastic sachets containing white crystalline substances with a total weight of 0.26 gm. which substances gave POSITIVE results to the tests for Methamphetamine Hydrochloride, a regulated drug, commonly known as Shabu, the said accused knowing fully well and aware that it is prohibited for any person to possess or use any regulated drug without the corresponding license or prescription.The two (2) criminal cases were jointly tried at the Regional Trial Court (RTC) of Aparri, Cagayan, Branch 8. Dexter pleaded not guilty to both charges.
CONTRARY TO LAW.
SPECIMEN SUBMITTED:On December 5, 2002, the prosecution formally offered its exhibits, which included the brick of marijuana leaves and fruiting tops weighing 831.91 grams (Exhibit "A"); and the shabu which weighed 0.26 grams (Exhibits "B" and "B-1"). Thereafter, the prosecution rested its case.Exh "A" - one (1) brick of suspected Marijuana fruiting tops with weight of 831.91 grams wrapped with newspaper print and masking tape with markings and further placed in one (1) brown long envelope with description. xxxExh "B-B1" - Two (2) small heat-sealed transparent plastic sachets wrapped with masking tape with markings, containing white crystalline substances with total weight of 0.26 gm and further placed in one (1) cellophane with description. xxx
PURPOSE OF LABORATORY EXAMINATION:To determine the presence of prohibited and/or regulated drugs. xxx
F I N D I N G S:Qualitative examination conducted on the above-stated specimen gave the following results:Exh "A" - gave POSITIVE result to the test for Marijuana, a prohibited drug. xxxExh "B-B1" - gave POSITIVE result to the test for Methamphetamine Hydrochloride, a regulated drug. xxx
C O N C L U S I O N:Exh "A" - contains Marijuana, a prohibited drug. xxxExh "B-B1" - contains Methamphetamine Hydrochloride, a regulated drug. xxx
WHEREFORE, the Court finds accused Dexter Torres y De La Cruz "GUILTY" beyond reasonable doubt in both cases and is hereby sentenced to suffer the penalty of Reclusion Perpetua and a fine of Five Hundred Thousand (P500,000.00) Pesos in Criminal Case No. 08-1334 and, the indeterminate prison term of six (6) years, one (1) day of prision mayor, as minimum, to twelve (12) years and one (1) day of reclusion temporal, as maximum, and a fine of Five Hundred Thousand (P500,000.00) Pesos in Criminal Case No. 08-1344.The trial court rejected the defense of alibi cum frame-up of the accused and upheld in favor of the prosecution the presumption of regularity in the performance of official duties.
The appeal was transferred to the CA for appropriate action and disposition per Resolution of this Court dated April 6, 2005, in accordance with the ruling in People v. Mateo.I
THE COURT A QUO GRAVELY ERRED IN FINDING THAT THE SEARCH WARRANT ISSUED AGAINST HEREIN APPELLANT WAS VALIDLY AND LAWFULLY IMPLEMENTED..II
THE COURT A QUO ERRED IN FINDING THAT THE GUILT OF THE ACCUSED-APPELLANT FOR THE CRIME CHARGED HAS BEEN PROVEN BEYOND REASONABLE DOUBT.
WHEREFORE, in view of the foregoing, the joint decision of the Regional Trial Court, Branch 08 of Aparri, Cagayan in Criminal Cases Nos. 08-1334 and 08-1344 is hereby AFFIRMED WITH MODIFICATIONS. Accused-appellant Dexter Torres y Dela Cruz is hereby found GUILTY of violating Sections 8 and 16 of Republic Act No. 6425, as amended by Republic Act No. 7659, and is hereby sentenced to suffer:Dexter sought reconsideration, which the CA denied.
(1) the penalty of reclusion perpetua and a fine of Five Hundred Thousand Pesos (P500,000.00) in Criminal Case No. 08-1334; and
(2) an indeterminate sentence of 6 months of arresto mayor to 4 years and 2 months of prison correccional in Criminal Case 08-1344.
SEC. 8. Search of house, room, or premises, to be made in presence of two witnesses. ' No search of a house, room, or any other premise shall be made except in the presence of the lawful occupant thereof or any member of his family or in the absence of the latter, two witnesses of sufficient age and discretion residing in the same locality.Appellant argues that Henny is not a "lawful occupant" of the house as contemplated in the above section. And even if she is one, her presence did not cure the illegality of the search since she was prevented by the police from actually witnessing the search as it was being conducted. He points out that her sister was confined by the police in one of the rooms of the house while the simultaneous search was going on in the other portion thereof. Moreover, though the raiding party had summoned two barangay kagawads as witnesses, the police were already through searching the house when Kagawad Ernesto arrived. In other words, the latter, too, had failed to witness the search.
FISCAL :PO2 Pascual's above testimony was corroborated by SPO1 Jessie Liwag, likewise a member of the raiding team that searched the house of the appellant. Besides, Henny and Kagawad Ernesto, were not the only witnesses to the search; Kagawad Edward Sagnep was also present during the entire search. This is evinced by the testimonies of PO2 Pascual and the certification signed by the two Kagawads.
Q. What did you do when you arrived at the house of the accused at Salvanera St. Paradise, Gonzaga, Cagayan?
A. SPO4 Lasam, the officer on the case who was handling the Search Warrant, informed the persons present at that house of the purpose of the members, Sir.
Q. By the way, was the accused present?
A. Dexter Torres was not present, Sir.
Q. Who were in their house at that time?
A. His sister, Henny Gatchalian and some of his children, Sir.x x x
Q. And after informing the sister of the accused of your purpose, that is to serve the search warrant against her brother, what did you do?
A. In the presence of the barangay kagawad and the sister of the accused, we began to search the house, Sir.
Q. And were you able to discover anything inside the house of
A. Yes, Sir.
Q. What were you able to find out inside the house?
A. During the conduct of the search, we were able to recover one brick form of dried marijuana wrapped in a newspaper, placed inside a wooden cabinet particularly at the second deck of the wooden cabinet, Sir.
Q. Aside from that, what did you see inside the house?
A. While conducting the search, we recovered two transparent plastic sachet containing, which we believe to be shabu and some other materials such as lighter, aluminum foils, Sir.x x x
Q. Where was Henny Gatchalian at the time of the search?
A. Always beside us, Your Honor.
Q. You mean Henny Gatchalian was also inside the house?
A. Yes, Your Honor.
Q. So there were five of you inside the house?
A. Yes, Sir.
Q. You, Liwag, councilmen Sagnep and Vivit and Gatchalian?
A. Yes, Sir.
We note, however, that her credibility is adversely affected by the inconsistencies in her statements. She could not even exactly say where she was staying before the police arrived to conduct the search. Thus, the transcript of her testimony provides as follows:Consistent with the trial court's own findings as between the testimony of Gatchalian and the testimonies of the police officers, this Court finds the testimonies of the police officers more credible. Aside from the principle that testimonies of police officers deserve full faith and credit given the presumption that they have performed their duties regularly, we note that the prosecution witnesses gave consistent and straightforward narrations of what transpired on August 13, 2001. The police officers have consistently testified that Gatchalian was then in the house of the accused- appellant when they arrived thereat, and that she was with them when they conducted the search inside the house.
FISCAL NELJOE CORTES: You do not own a house in Gonzaga?
Witness GATCHALIAN: We only stay in the house of my parents-in-law, Sir.
Q: You stated while ago that you were then in your house when they conducted the search?
A: Yes, Sir.
Q: And you likewise stated that your house is situated beside the house of Dexter Torres
A: Yes, Sir.
Q: The house of your father is situated about 200 meters away from the house of Dexter Torres, is it not?
A: Yes, Sir.
Q: And according to you at that time, you were staying in the house of your father-in-law?
A: I was not staying in the house of my father, Sir.
Q: Because you were then staying in the house of Dexter Torres?
A: Yes, Sir.
Q: And as a matter of fact, you were in the house of Dexter Torres when the police arrived, is it not?
A: I was in the house of my father, Sir.
Q: So you now agree with me that in August 2001, you were staying in the house of your brother Dexter Torres?
A: No, Sir.
Q: Did you not state a while ago that you are staying in your brother's house?
A: Yes, Sir, but when the police conducted the search, I was in the house of my father.
Q: Again, you seem not to be telling the truth?
A: Why not, Sir.
Q: A while ago also you stated that you are staying in the house of your father-in-law, which is about 200 meters away?
A: Yes, Sir.
Q: So at that time you were staying in three houses, in the house of your brother, in the house of your father-in-law and in the house of your (father)?
A: I am not staying in the house my father-in-law, Sir.
Q: So your statement earlier that you are staying in your father-in- law's house is not correct?
A: No, Sir.
Q: So the house that you are referring to in your direct examination is actually the house of your father or the house of Dexter?
A: (I) was only told by Dexter that I will just clean the house if he leaves the place, Sir.
FISCAL NELJOE CORTES: You were required to sign a confiscation receipt?
A: Yes, sir.
Q: You were told that the document that you were asked to sign is a Confiscation Receipt, meaning, the items you enumerated therein were actually taken as a result of the search?
A: Yes, sir.
Q: And you signed that document because you know for a fact that the items were actually recovered inside the house of the accused?
A: Yes, sir.
Q: And that is the truth?
A: Yes, sir.
As correctly pointed out by the trial court:
The afore statements of this defense witness clearly established the fact that, there was nothing irregular in the execution of the search warrant. It also establishes the material fact that, what was claimed to have been recovered, seized and confiscated from the cabinet located in one of the rooms of Dexter's house, to wit: dried marijuana, two (2) plastic sachets of shabu, lighter, match box, and aluminum foils are true. True, because Ernesto Vivit, a witness to the search and a barangay councilman signed the confiscation receipt voluntarily because he knew for a fact that said items were actually recovered from the house of the accused."
Even defense witness Henny Gatchalian mentioned in her testimony that Ernesto Vivit was with the policemen when they conducted the search.More importantly, it is now too late in the day for appellant to object to the admissibility of the evidence seized pursuant to the search warrant. Though he seasonably objected after the prosecution formally offered its evidence, his objection was not based on constitutional grounds, but rather on the ground that he was not in actual possession of the premises at the time the search was conducted.
At any rate, objections to the legality of the search warrant and to the admissibility of the evidence obtained thereby were deemed waived when no objection to the legality of the search warrant was raised during the trial of the case nor to the admissibility of the evidence obtained through said warrant.Indeed, the right to be secure from unreasonable searches and seizures, like any other right, can be waived and the waiver may be made either expressly or impliedly.
SECTION 19. Section 24 of Republic Act No. 6425, as amended, known as the Dangerous Drugs Act of 1972, is hereby amended to read as follows:
The incantation of frame-up is nothing new. It is a common and standard line of defense in most prosecutions for violation of the Dangerous Drugs Law. While such defense cannot and should not always be considered as contrived, nonetheless, it is generally rejected for it can easily be concocted but is difficult to prove. Police officers are, after all, presumed to have acted regularly in the performance of their official functions, in the absence of clear and convincing proof to the contrary, or that they are motivated by ill-will.Sec. 24. Penalties for Government Officials and Employees and Officers and Members of Police Agencies and the Armed Forces, "Planting" of Evidence. - The maximum penalties provided for [in] Sections 3, 4(1), 5(1), 6, 7, 8, 9, 11, 12 and 13 of Article II and Sections 14, 14-A, 15(1), 16 and 19 of Article III shall be imposed, if those found guilty of any of the said offenses are government officials, employees or officers, including members of police agencies and the armed forces.
Any such above government official, employee or officer who is found guilty of "planting" any dangerous drugs punished in Sections 3, 4, 7, 8, 9 and 13 of Article II and Sections 14, 14-A, 15 and 16 of Article III of this Act in the person or in the immediate vicinity of another as evidence to implicate the latter, shall suffer the same penalty as therein provided.
x x x This crime is mala prohibita, and as such, criminal intent is not an essential element. However, the prosecution must prove that the accused had the intent to possess (animus posidendi) the drugs. Possession, under the law, includes not only actual possession, but also constructive possession. Actual possession exists when the drug is in the immediate physical possession or control of the accused. On the other hand, constructive possession exists when the drug is under the dominion and control of the accused or when he has the right to exercise dominion and control over the place where it is found. Exclusive possession or control is not necessary. The accused cannot avoid conviction if his right to exercise control and dominion over the place where the contraband is located, is shared with another.In the instant case, appellant failed to present any evidence to rebut the existence of animus possidendi over the illicit drugs and paraphernalia found in his residence. His claim that he was not aware that such illegal items were in his house is insufficient. We have time and again ruled that mere denial cannot prevail over the positive testimony of a witness. Mere denial, just like alibi, is a self-serving negative evidence which cannot be accorded greater evidentiary weight than the declaration of credible witnesses who testify on affirmative matters. As between a categorical testimony that rings of truth on one hand, and a bare denial on the other, the former is generally held to prevail. Moreover, his defense of frame-up, as we said, is a common and standard line of defense which is invariably viewed with disfavor, it being capable of easy concoction and difficult to prove. Considering that no clear and convincing evidence was presented to prove such allegation, the presumption of regularity in the performance of official duty, as well as the principle that findings of the trial court on the credibility of witnesses, especially when affirmed by the CA, are entitled to great respect and are accorded the highest consideration, must prevail over the appellant's imputation of ill-motive on the part of the policemen who conducted the search.
Thus, conviction need not be predicated upon exclusive possession, and a showing of non-exclusive possession would not exonerate the accused. Such fact of possession may be proved by direct or circumstantial evidence and any reasonable inference drawn therefrom. However, the prosecution must prove that the accused had knowledge of the existence and presence of the drug in the place under his control and dominion and the character of the drug. Since knowledge by the accused of the existence and character of the drugs in the place where he exercises dominion and control is an internal act, the same may be presumed from the fact that the dangerous drugs is in the house or place over which the accused has control or dominion, or within such premises in the absence of any satisfactory explanation.
ART. 22. Retroactive effect of penal laws. - Penal laws shall have a retroactive effect insofar as they favor the persons guilty of felony, who is not a habitual criminal, as this term is defined in Rule 5 of Article 62 of this Code, although at the time of the publication of such laws a final sentence has been pronounced and the convict is serving the same.The same law also changed the penalty for illegal possession of 500 grams or more of marijuana to life imprisonment to death, and a fine ranging from P500,000.00 to P10,000,000.00. Obviously, the amendment of the penalty from reclusion perpetua to life imprisonment to death in R.A. No. 9165 cannot, likewise, be applied retroactively to the present case since it would also be unfavorable to appellant.