THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ALLEN BASILGO Y CANONIGO, ACCUSED-APPELLANT.

Accused-appellant Allen Basilgo y Canonigo was accused of
violation of Article II, Section 4 of Republic Act 6425, otherwise known as the
Dangerous Drugs Act of 1977, filed before the Regional Trial Court of Cebu –
Branch 28, Mandaue City, in an Information which reads as follows:

“That on or about the 24th day of November, 1991 in the City
of Mandaue, Philippines and within the jurisdiction of this Honorable Court,
the aforenamed accused, with deliberate intent and without being authorized by
law, did then and there wilfully, unlawfully and feloniously sell, deliver and
give away to another or act as a broker in selling, delivering and giving away
to another one hundred (100) gms. of marijuana dried leaves with buds, seeds
and stalks, a prohibited drug.

CONTRARY TO LAW.”^[1]

Upon arraignment, Basilgo entered a plea of not guilty to the
charge. Thereafter, trial ensued.

On June 5, 1992, a decision^[2] was
rendered by the court a quo finding the accused guilty beyond
reasonable doubt of the offense charged, sentencing him to life imprisonment
and to pay a fine of P20,000.00 with subsidiary imprisonment in case of
insolvency and to pay the costs. Being
a detention prisoner, the accused was credited with the full time of his
preventive imprisonment.

The evidence for the prosecution established that the accused was
arrested in a buy-bust operation conducted by the agents of NARCOM in Lahug,
Cebu City on November 24, 1991.

Agent Johnny Arriesgado testified that, upon instructions from
Major Essa Hassan to verify the reports that marijuana was being sold in
Mandaue City, he conducted a surveillance on one named Allen Basilgo on
November 21, 1991. On November 22, 1991
in Fatima Valley, Arriesgado proposed to buy marijuana from Basilgo. Both agreed that Basilgo would sell the
marijuana worth P250.00 to Arriesgado if the latter would return on the 24th.

After a briefing on the conduct of the operation, Arriesgado
arrived at Fatima Valley, Pagsabungan, Mandaue on November 24, 1991. The rest of the team composed of Sgt.
Alejandro Biñan, Sgt. Frank Sevillano and Sgt. Ibrahim Said, positioned
themselves about five (5) meters away from where the transaction was to take
place at a vantage point where they could observe everything without being
noticed. Arriesgado approached
Basilgo’s house. Upon seeing him,
appellant invited him to get inside the fence surrounding the house and to sit
on the bamboo bench located just outside the door of appellant’s house.^[3]
Without wasting any time, Arriesgado reminded Basilgo of their agreement two
days before, to which the appellant responded that he had the order
covered. He then went inside and came
out within minutes with a packet containing the marijuana. After receiving the marijuana,^[4]
agent Arriesgado gave to appellant the marked money consisting of two (2)
P100.00 bills and one (1) P50.00 bill, all initialed by Sgt. Biñan,^[5] making the pre-arranged signal of touching
his head. The team then quickly
approached Basilgo and arrested him after introducing themselves
as NARCOM agents and announcing the reason for his arrest. Sgt. Biñan then asked that Arriesgado
surrender his remaining stocks of marijuana to them, which the accused did by surrendering
to them a cement-wrapper of buds, seeds and dried marijuana leaves.^[6]
All the confiscated marijuana were sent to the PNP Crime Laboratory for
examination, after which Chemistry Report No. C-593-91 was issued by Police
Inspector Myrna Areola, who found the confiscated goods positive for tetra
hydrocannabinol.

The accused, a 26-year old family man who worked as a rattan
decorator and piece-worker in different rattan factories like Interlude, High
Craft, Cancio and Select Art, and earned a minimum of P800.00 a week, testified
in his behalf. He alleged that on
November 24, 1991, which was a Sunday, at around 4:45 p.m., he was at his
residence in Fatima Valley together with his family, getting ready for church
services, when Arriesgado arrived and inquired whether he was Allen Basilgo;
that when he answered in the affirmative, around eight of Arriesgado’s
companions rushed inside his house, handcuffed him and searched his dwelling;
that they asked his wife for “the gun;” that when there was none,
they all went out bringing along with them the appellant to the nearby NARCOM
headquarters; that they persisted on knowing the identity of “the woman
who always delivered marijuana to him” despite his denial of any
association with her; that the investigating agent got a red weighing scale and
after placing a cement-wrapper, commanded that he unwrap the bag; that when he
refused to obey the order, he was boxed on the nape; that he was forced to
unwrap the cement bag which contained “grass” that weighed 100 grams;
and finally, that he denied having smoked marijuana or having engaged in any
transaction involving the same.

On April 22, 1992, the
RTC – Branch 28 of Mandaue City rendered judgment in Criminal Case No. DU-2626,
finding the accused guilty beyond reasonable doubt of violation of Section 4,
Article II of R.A. 6425 as amended, sentencing him to life imprisonment and a
fine of P20,000.00 plus costs.

From this judgment of
conviction, the accused filed the present appeal praying for his acquittal,
alleging that the court a quo erred in finding that he sold dried marijuana leaves for P250.00 to
agent Arriesgado but assuming that he did, the trial court erred in not finding
that he did so only upon inducement of the NARCOM team.

Appellant’s contention is
untenable.

Once again, the rule that findings of fact of the trial court on
the issue of credibility of the witnesses are accorded great weight and respect
on appeal, comes to fore.^[7]
“Long settled in criminal jurisprudence is the rule that when the issue is
one of credibility of witnesses, appellate courts will generally not disturb
the trial court’s findings.”^[8] Two
important considerations reenforce the correctness of the findings of the trial
court. Firstly, the testimonies of the arresting officers are positive in character
while that of the accused is negative. Secondly, no improper motive has been imputed to the arresting officers
who are presumed to have regularly performed their official duty in the absence
of any evidence to the contrary.

The accused-appellant was caught in flagrante delicto. His conviction was based on the testimony of
the poseur-buyer, the principal prosecution witness, corroborated by the
testimonies of the other team agents who conducted the buy-bust operation. The stuff bought from him was hidden in his
house and found to be marijuana leaves and fruiting tops. Moreover, the identity of the packet and bag
of marijuana which constitutes the corpus delicti was fully established in
court. Proof of the transaction
suffices.

In People v. Juma,^[9] we
held that:

“Entrapment is the employment of such ways and means for the
purpose of trapping or capturing a law breaker. Oftentimes it is the only effective way of apprehending a
criminal in the act of the commission of the offense x x x A criminal is caught committing the act by ways and means
devised by peace officers.

It must be distinguished from inducement or instigation wherein the
criminal intent originates in the mind of the instigator and the accused is
lured into the commission of the offense charged in order to prosecute
him. The instigator practically induces
the would-be accused into the commission of the offense and himself becomes a
co-principal. In entrapment ways and
means are resorted to for the purpose of capturing the law-breaker in flagrante
delicto. In entrapment, the crime
had already been committed while in instigation, it was not and could not have
been committed were it not for the instigation by the peace officer.”

Clearly, there was no instigation here because when the
poseur-buyer Arriesgado offered to buy marijuana from the accused by handing
over to him the buy-bust money and in exchange therefor, the latter readily
gave him the packet containing P250.00 worth of marijuana, the crime was
already consummated. All that the NARCOM
agents had to do was to apprehend the accused. This procedure, commonly known as a “buy-bust operation,” is a
form of entrapment employed by peace officers as an effective way of
apprehending a criminal in the act of the commission of the offense. Entrapment has received judicial sanction as
long as it is carried out with due regard to Constitutional and legal
safeguards.

We turn,   finally,  to
the determination of the penalty properly imposable upon appellant
Basilgo. Under Sections 15 and 20 of
Republic Act No. 6425, as last amended by R.A. No. 7659, and construed and
applied with retroactive effect in the very recent decision of this Court in People
v. Martin Simon (G.R. No. 93028, 29 July 1994), and given
the circumstances that (a) the “shabu” sold by appellant
Basilgo weighed 100 grams and that (b) no aggravating or mitigating
circumstance was found in the instant case, the penalty properly imposable upon
appellant Basilgo is prision correccional in its medium
period. Applying the Indeterminate
Sentence Law, again in accordance with the majority ruling of this Court in the
Martin Simon case, appellant Allen Basilgo is properly sentenced
to imprisonment for a term ranging from, as a minimum, six (6) months of arresto
mayor to a maximum of two
(2) years and four (4) months of prision correccional in its
medium period.

WHEREFORE, for all the foregoing, the Decision of
the Regional Trial Court of Cebu, Branch 28 in Criminal Case No. DU-2626 dated
April 22, 1992 is hereby AFFIRMED, with the modifications, however, that the
fine of P20,000.00 is deleted, and that appellant shall suffer imprisonment for
an indeterminate period ranging from six (6) months of arresto mayor
as minimum to two (2) years and four (4) months of prision correccional
as maximum. Costs against
appellant.

SO ORDERED.

Feliciano,
(Chairman), Bidin, Melo, and Vitug, JJ.,
concur.

^[1]
Rollo, p. 8.

^[2]
Rollo, pp. 8-12.

^[3]
TSN of February 27, 1992, pp. 24-25.

^[4]
Exh. “B.”

^[5]
Exhs. “E” to “E-2.”

^[6]
Exhs. “C” and “C-1.”

^[7]
People v. Macuto, G.R. No. 80112, August 25, 1989, 176 SCRA 762.

^[8]
People v. Pascual, G.R. No. 88282, May 2, 1992, 208 SCRA 393; People v.
Rumeral, G.R. No. 86320, August 5, 1991, 200
SCRA 194.

^[9]
G.R. No. 90391, March 24, 1993, 220 SCRA 432.