PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE,VS. FERDINAND CERCADO Y MOZADA, ACCUSED-APPELLANT.

This is an appeal assailing the Decision of
the Regional Trial Court of
Urdaneta, Pangasinan, Branch 46, finding appellant Ferdinand Cercado y
Mozada
guilty of violating Section 4, Article II of Republic Act (R.A.) No.
6425, as
amended by R.A. No. 7659, and sentencing him to suffer the penalty of
Reclusion Perpetua and to pay a fine of
P1,000,000.00 without any
subsidiary penalty.

Appellant is charged under the following Information:

“That on or about November 5, 1999, in the evening, at Barangay
Calipangpang
(sic), Pozorrubio, Pangasinan, and within the
jurisdiction of this
Honorable Court, the above-named accused, did then and there wilfully,
unlawfully and feloneously (sic) sell one (1) brick (of) marijuana dried
leaves,
a prohibited drug, wrapped in a white plastic bag and weighing one (1)
kilo,
without the necessary permit or authority to do so.

CONTRARY to Sec. 4, Art. II, R. A. No. 6425, as amended by R.
A. No.
7659.”^[1]

Upon arraignment, appellant pleaded “Not Guilty” and then
underwent
trial.

The prosecution presented the testimony of the following
witnesses: PO2 Edgar
C. Torres, PO2 Teogenes N. Perez, P/Supt. Theresa Ann Bugayong-Cid, and
P/Sr.
Inspector Christopher N. Abrahano.

PO2 Edgar C. Torres testified that he was one of the elements
of the First
Regional Narcotics Office, Philippine National Police (PNP) Narcotics
Group who
arrested appellant by acting as poseur-buyer in a buy-bust operation on 5

November 1999 at Brgy. Alipangpang, Pozorrubio, Pangasinan. He recounted
that
while he was in his office at San Fernando City, La Union in the morning
of 5
November 1999, a civilian confidential informant reported that he could
buy one
(1) kilo of marijuana from a certain “Alyas Imok” (who later turned out
to be
appellant Ferdinand Cercado y Mozada) of Brgy. Alipangpang, Pozorrubio,
Pangasinan. He relayed this information to his Team Leader, P/Insp.
Christopher
N. Abrahano, who evaluated the report and ordered a buy-bust operation.
P/Insp.
Abrahano designated PO2 Torres as poseur-buyer and gave him the boodle
money
consisting of one (1) P1,000.00 bill^[2]
and two (2) P500.00 bills.^[3] P/Insp.
Abrahano, PO2 Rolando C. Navarette and PO2 Teogenes N. Perez were to act
as
back-up arresting officers. He narrated that the team thereafter
proceeded to
the PNP Pozorrubio Station to coordinate with the local police in charge
with
the narcotics operations in the area. He presented a Memorandum^[4] addressed to the Chief
of Police of
Pozorrubio to prove that they in fact coordinated with the latter. After
the PNP
of Pozorrubio entered the Memorandum in the blotter, the team proceeded
to the
house of appellant at around 5:00 o’clock in the afternoon. Upon
reaching the
house of appellant, the confidential informant introduced PO2 Torres to
“Alyas
Imok” as an interested buyer of one (1) kilo of marijuana which
appellant priced
at P2,000.00 per kilo. Appellant told PO2 Torres and the confidential
informant
to wait for him and left the house. They waited in front of the house of

appellant for about four (4) hours. When appellant arrived at around
9:00
o’clock in the evening, he handed a plastic bag to PO2 Torres and
demanded for
the payment. PO2 Torres, in turn, gave appellant the P2,000.00 boodle
money.
After having ascertained that the material inside the plastic bag was
marijuana,
PO2 Torres lighted a cigarette, the pre-arranged signal, and his back-up

arresting officers rushed to arrest the appellant. PO2 Perez recovered
the
boodle money and the brick of marijuana from appellant. After the
arrest, the
team, together with appellant, went back to the PNP Pozorrubio Station
to
blotter the case. Subsequently, they proceeded to their sub-office in
Nancayasan, Urdaneta City for proper investigation. The Booking
Sheet,^[5] Arrest
Report, Affidavit of Arrest^[6] and other documents relevant to the filing
of the case were prepared in this office.^[7]

PO2 Teogenes N. Perez, also a policeman assigned at the First
Regional
Narcotics Office, testified that he was one of the back-up arresting
officers
who arrested appellant. He corroborated the testimony of PO2 Torres on
material
points. From his position as back-up arresting officer, he recounts that
he and
his teammates strategically positioned themselves at a store near the
house of
appellant. From where he was, he saw appellant, PO2 Torres and the
confidential
informant talking with each other. At around 9:20 o’clock in the
evening, or
after an interval of about four (4) hours, PO2 Torres lit a cigarette,
their
pre-arranged signal. They rushed to apprehend appellant, conducted a
body search
and found the P2,000.00 boodle money in his possession. He also
identified the
brick of marijuana that they confiscated from appellant as the same
brick of
marijuana on exhibit and likewise identified one of the signatures in
the
wrapper of the marijuana as his own.^[8]

P/Supt. Theresa Ann Bugayong-Cid, a Forensic Chemist at the PNP
Regional
Crime Laboratory Office of San Fernando City, La Union testified that
they
submitted to her one (1) white plastic bag with markings containing one
(1)
brick of suspected dried marijuana leaves and seeds, weighing 905.3
grams. Based
on a Physical Science Report, the specimen was found positive for the
presence
of marijuana, a prohibited drug.^[9]

P/Sr. Inspector Christopher N. Abrahano, the Team Leader of the
Narcotics
Group on the buy-bust operation, testified and corroborated the
testimonies of
PO2 Torres and PO2 Perez. He added that they arrived at the scene of the

buy-bust operation at around 5:30 o’clock in the afternoon. He also said
that he
saw appellant leave and proceed at the back of his house. After waiting
for more
or less three (3) hours, he saw PO2 Torres light a cigarette, their
pre-arranged
signal. He and his men proceeded to apprehend the appellant, informed
him of his
constitutional rights and found in his possession the boodle money and a
brick
of marijuana which he identified as the same ones on exhibit. He further
stated
that they were only able to know the identity of appellant after he was
apprehended. After the arrest, they brought appellant to their
sub-office in
Nancayasan, Urdaneta City for proper documentation. They also requested
for
medical and physical examination and made necessary receipts for the
confiscated
items. The confiscated brick of marijuana was subjected to a field test
using
the Narcotics Test Disposakit Identification which gave positive result
to the
test for Tetre Hydrocanabinol (THC). He identified the Certification of
Field
Test on exhibit.^[10] After conducting the
field test, they indorsed the marijuana for laboratory
examination.

The defense presented the sole testimony of appellant. He
testified that on 5
November 1999, the time the alleged incident took place, he was inside
his house
at Brgy. Alipangpang, Pozorrubio, Pangasinan. At around 7:00 o’clock in
the
evening, three (3) unidentified men allegedly entered and ransacked his
house.
He was then with his wife and two (2) children. He narrates that the
three (3)
men had guns and one of them was carrying a bag. Appellant asked for
their names
but got no reply. After searching the whole house without presenting any

warrant, the three men brought appellant outside and asked him to admit
possession of the marijuana inside the bag that one of them was
carrying. They
likewise asked appellant to give them P5,000.00. When he refused to
admit and
give them money, the three (3) men beat him up and later brought him to
the
“barangay”.^[11] He
later learned that one
of them was PO2 Perez. He never knew the names of the two (2) others,
except
that he remembers they have ID’s and thinks that they are policemen. On
cross-examination, appellant maintained that the brick of marijuana was
merely
planted by the police operatives.^[12]

The court a quo found appellant guilty as
charged. Hence, this
appeal.

In his Brief, appellant assigns the following
errors:

“I

THE TRIAL COURT ERRED IN GIVING WEIGHT AND CREDENCE TO THE
TESTIMONIES OF
PROSECUTION WITNESSES PO2 EDGAR TORRES, PO2 TEOGENES PEREZ AND P/SR.
INSPECTOR
CHRISTOPHER NORTES ABRAHANO.

II

THE TRIAL COURT ERRED IN NOT HOLDING THAT THE PROSECUTION
MISERABLY FAILED TO
PROVE THE GUILT OF THE ACCUSED BEYOND RASONABLE (sic) DOUBT.”^[13]

On the first assignment of error, appellant contends that the
version of the
prosecution is not credible. He considers it contrary to human
experience and
beyond comprehension that appellant would openly sell marijuana, a
prohibited
drug, to people he hardly knew, to the point of exposing himself to a
possible
arrest. He likewise argues that the failure of the prosecution to
identify and
present the confidential informant weakens the case against him, citing
the case
of People vs. Rojo.^[14]

On the second assignment of error, appellant contends, that
granting
arguendo, he sold one (1) kilo of dried marijuana leaves, the evidence
remains
insufficient to convict him since the prosecution failed to prove that
he had no
legal authority to sell marijuana. Relying on People vs.
Pajenado,^[15] he invokes the
rule that negative allegations need no proof except when such negative
allegation is an essential element of an offense. Hence, in this case,
where the
lack of authority or license to sell marijuana is an essential element
of the
offense charged, the failure of the prosecution to prove this negative
allegation entitles him to an acquittal.

We affirm the conviction of appellant.

The court a quo did not err in according
weight and credence to the
testimonies of the prosecution witnesses. Their testimonies on how the
buy-bust
operation was conducted are free from contradiction or fabrication and
find
corroboration in irrefragable pieces of
evidence.

In contrast, the version of appellant that three (3) men
entered their house
without any search warrant and that he was mauled when he refused to
give them
P5,000.00 is far from persuasive. He was not able to show any evil
motive on the
part of the prosecution witnesses to plant evidence against him, extort
money
from him, or testify falsely against him. His testimony is wanting and
uncorroborated. Not even his wife and his two (2) children came forward
to
corroborate his testimony. The defense of frame-up in drug cases is easy
to
concoct and to be believed, must be supported by strong and convincing
evidence.
Appellant failed to discharge this burden of proof.

Appellant’s submission that it is incredible to engage in open
selling of
marijuana to strangers is rejected. As correctly observed by the
prosecution,
over time, drug pushers have become increasingly daring and openly
defiant of
the law,^[16]
especially where law
enforcement is weak and feeble.

Appellant likewise faults the prosecution for not presenting
the informant.
The presentation of the informant is not per se necessary. There is no
need to
present him if the sale of prohibited drug has been adequately proved by
the
prosecution witnesses. If the elements of the offense have been proved,
the
informant’s testimony would be merely corroborative and
cumulative.^[17]
His non-presentation would not create a
hiatus in the evidence for the prosecution.

We reiterate the case law that material to a prosecution for
illegal sale of
dangerous drugs is the proof that the transaction or sale actually took
place,
coupled with the presentation in court of the corpus
delicti as
evidence.^[18] In
the case at bar, all
these elements were proven. First, there was meeting of the minds
between the
buyer and the seller. PO2 Torres, the poseur-buyer, was willing to buy
marijuana
from appellant at P2,000.00 per kilo. Second, there was consideration
for the
sale, the parties having agreed upon the amount of P2,000.00. Third,
there was
delivery of one (1) kilo of dried marijuana leaves, the subject of the
sale.

We also find no merit in the second assignment of error of the
appellant. The
doctrine in Pajenado has been modified in the case of People
v. de los
Reyes.^[19] In de los Reyes,
we held that the Dangerous Drugs Act applies generally to all persons
and
proscribes the sale of dangerous drugs by any person and no person is
presumed
authorized to sell such drugs. It is the accused, claiming the benefit
of the
exemption, who must prove that he falls under the protective mantle of
the
exemption.

In People v. Manalo,^[20] we
explained the rationale for the modification of the rule,
thus:

“The general rule is that if a criminal charge is predicated on
a negative
allegation, or a negative averment is an essential element of a crime,
the
prosecution has the burden to prove the charge. However, this rule
admits of
exceptions. Where the negative of an issue does not permit of direct
proof, or
where the facts are more immediately within the knowledge of the
accused, the
onus probandi rests upon him. Stated
otherwise, it is not incumbent
on the prosecution to adduce positive evidence to support a negative
averment
the truth of which is fairly indicated by established circumstances and
which,
if untrue, could readily be disproved by the production of documents or
other
evidence within the defendant’s knowledge or control. For
example, where a
charge is made that a defendant carried on a certain business without a
license
(as in the case at bar where the accused is charged with the sale of a
regulated
drug without authority), the fact that he has a license is a matter
which is
peculiarly within his knowledge and he must establish the fact or suffer

conviction (29 Am. Jur., 2d 184). Even in the case of Pajenado, this
Court
categorically ruled that although the prosecution has the
burden of proving
a negative averment which is an essential element of a crime, the
prosecution,
in view of the difficulty of proving a negative allegation, “need only
establish
a prima facie case from the best evidence obtainable. (Supra,
at p.817) x x
x ”^[21]

In the case at bar, it is clear that appellant had no authority
or license to
sell marijuana leaves. He was caught selling the prohibited drug in
front of his
house. He himself delivered the drug to the poseur-buyer and accepted
the
buy-bust money. He did not protest his arrest on the ground that he has
authority to sell the drug. Until now, he has not produced any authority
by way
of defense.

Finally, we hold that the trial court correctly imposed the
penalty of
reclusion perpetua. Under Sec. 20 of R.A. No. 6425,
as amended by R.A.
No. 7659, if the dangerous drug involved is 750 grams or more of indian
hemp or
marijuana, the penalty to be imposed shall be reclusion
perpetua to
death and a fine ranging from P500,000.00 to P1,000,000.00. In this
case, the
brick of marijuana weighs over 750 grams. Hence, the penalty of
reclusion
perpetua and payment of a fine of P1,000,000.00 is within the
ambit of the
law.

WHEREFORE, premises considered,
the appealed decision is
AFFIRMED in toto. Costs against
accused-appellant.

SO ORDERED.

Panganiban,
Sandoval-Gutierrez, and Carpio,
JJ., concur.

---

^[1] Original
Record (OR), pp. 18-19.

^[2] With
Serial No. AA672159 and
marked as Exhibit “A-1”.

^[3] Both
bills bear the Serial No.
BS134317 and are marked as Exhibits “A-2” and “A-3”.

^[4]
Exhibit “B”; Folder of Exhibits,
p. 9.

^[5]
Exhibit “C”; Folder of Exhibits,
p. 6.

^[6]
Exhibit “D”; Folder of Exhibits,
p. 3.

^[7] TSN,
PO2 Edgar C. Torres, 17
February 2000, pp. 1-9 and 6 March 2000, pp. 19-22.

^[8] TSN,
PO2 Teogenes N. Perez, 22
February 2000, pp. 1-9 and 6 March 2000, pp. 16-18.

^[9] TSN,
P/Supt. Theresa Ann
Bugayong-Cid, 6 March 2000, pp. 1-4.

^[10]
Exhibit “I”; Folder of Exhibits,
p. 4.

^[11] TSN,
Ferdinand M. Cercado, 11
April 2000, p. 6.

^[12] Id.,
11 April 2000, pp. 1-7 and 9
May 2000, pp. 1-4.

^[13]
Brief for Accused-Appellant, p.1;
Rollo, p. 42.

^[14] 175
SCRA 119 (1989).

^[15] 31
SCRA 812 (1970).

^[16]
Brief for Plaintiff-Appellee, p.
11; Rollo, p. 84.

^[17]
People v. Valdez, 304 SCRA 140,
153 (1999), citing People v. Salazar, 266 SCRA 607, 621
(1997).

^[18]
People v. Boco, 309 SCRA 42, 56
(1999).

^[19] 229
SCRA 439 (1994), citing U.S.
v. Chan Toco, 12 Phil 262, at 269-270 (1908).

^[20]
People v. Manalo, 230 SCRA 309
(1994).

^[21]
Ibid., pp. 318-319.