THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. NORMANDO DEL ROSARIO Y LOPEZ, ACCUSED-APPELLANT.

Normando del Rosario was charged before Branch 17 of the Regional
Trial Court of the Fourth Judicial Region stationed in Cavite City with Illegal
Possession of Firearm and Ammunitions in Criminal Case No. 236-91 and Illegal
Sale of Regulated Drugs in Criminal Case No.
237-91, under two informations reading, respectively, as follows:

Criminal Case No. 236-91

That on or about September 4, 1991, in the City of Cavite, Republic
of the Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, without legal authority, did, then and there, willfully,
unlawfully, feloniously and knowingly have in his possession and control a
homemade (paltik)

caliber 22 revolver with three (3) live
ammunition.

Contrary to law.

Criminal Case No. 237-91

That on or about September 4, 1991, in the City of Cavite, Republic
of the Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, without legal authority, did, then and there, willfully,
unlawfully, feloniously and knowingly sell to a poseur buyer an aluminum foil
containing Methamphetamine Hydrochloride also known as “Shabu”, a
regulated drug.

Contrary to law.

(pp. 20-21, Rollo.)

Upon arraignment, accused-appellant pleaded not guilty to both
charges, and after joint trial of the two cases, the court a quo rendered a decision, the dispositive portion of
which reads :

WHEREFORE, in view of the foregoing, the Court finds the accused
Normando del Rosario y Lopez guilty beyond reasonable doubt in the
above-entitled cases and he is hereby sentenced to undergo imprisonment: in Crim. Case No. 236-91 for Violation of
P.D. 1866 of Seventeen (17) years, Four (4) months and One (1) day of reclusion
temporal, as minimum to Twenty (20) years of reclusion temporal,
as maximum and in Crim. Case No. 237-91 for a Violation of Section 15, Article
III of Republic Act 6425, as amended of life imprisonment and to
pay a fine of P30,000.00, without subsidiary imprisonment in case of insolvency
and to pay the costs in both cases.

The shabu, the One Hundred Peso bill and other paraphernalia are
hereby ordered confiscated in favor of the government.

(pp. 28-29,
Rollo.)

From said decision, the instant appeal has been interposed.

The prosecution’s version of the case, as set forth in appellee’s
brief, is as follows:

Upon application of SPO3 Raymundo Untiveros of the Philippine
National Police (PNP) of Cavite City, Regional Trial Court Judge Arturo de Guia
issued in the morning of September 4, 1991 a search warrant (Exh. T, p. 50,
Rec.- Crim. Case No. 237-91) authorizing the search and seizure of an
“undetermined quantity of Methamphetamine Hydrochloride commonly known as
shabu and its paraphernalias” in the premises of appellant’s house located
at 828 R. Basa St., San Roque, Cavite City. However, the search warrant was not implemented immediately due to the
lack of police personnel to form the raiding team (pp. 4, 7, tsn., Feb. 4,
1992).

At about 9 o’clock in the evening of that day, a raiding team was
finally organized. SPO3 Untiveros
headed the raiding team with PO3 Rogelio Francisco, SPO1 Eduardo Novero, SPO3
Reynaldo de la Cruz, PO1 Carlito Barbuco, PO3 Onrubio and SPO2 Villegas as
members (pp. 5, 10, tsn., Feb. 4, 1992; p. 7, tsn., Dec. 11, 1991).

In the final briefing of the raiding team at the police station, it
was agreed upon that PO1 Venerando Luna will buy shabu from appellant and after
his return from appellant’s house, the raiding team will implement the search
warrant (p. 10, tsn., Feb. 4, 1992; pp. 17-18, tsn., Dec. 11, 1991). A marked money consisting of a P100 bill
bearing serial no. PQ 329406 (Exh.
P, p. 51, Rec.) was given by the
Station Commander to PO1 Luna and entered in the police logbook (p. 12, Feb. 4,
1992). PO1 Luna with a companion
proceeded to appellant’s house to implement the search warrant. Barangay Capt. Maigue, Norma del Rosario and
appellant witnessed the search at appellant’s house (p. 10, tsn., Dec. 11,
1991). SPO3 de la Cruz and PO3
Francisco found a black canister containing shabu, and aluminum foil, a paltik
.22 caliber (Exh. O) atop the TV set, three used ammunitions in a cup and three
wallets (Exhs. Q, R, S), one containing the marked money (Exh. P; pp. 11-12, tsn., Dec. 11, 1992). SPO1 Novero found inside a show box aluminum foils, napkins and a
burner (p. 9, tsn., March 11, 1992). SPO3 de la Cruz turned over the wallet containing the marked
money to PO3 Onrubio (p. 8, tsn., Jan. 7, 1992). The seized items were photographed thereat by Fred Agana and then
turned over to PO3 Onrubio (pp. 8, 32, tsn., Jan. 7, 1992). SPO3 Untiveros issued receipts (Exhs. V, V-1, pp. 53-54, Rec.) for the seized items
with Barangay Capt. Maigue and appellant’s sister Norma as signing
witnesses. He also made a return (Exh.
U, p. 52, Rec.) of the seized
items to the court (pp. 11-155, tsn., Feb. 18, 1992).

At police station, the seized items were taped and initialed by
SPO3 de la Cruz (p. 33, tsn., Jan. 7, 1992). The next day, SPO4 Pilapil, through PO1 Barbuco, forwarded to NBI
Forensic Chemist Mary Ann Aranas for laboratory analysis the aluminum foil
(Exhs. A, J, pp. 37, 46, Rec.) containing suspected shabu bought by PO1 Luna
from appellant in the buy-bust operation
as well as the aluminum foils (Exhs. G, K, pp. 43, 47, Rec.) containing
suspected marijuana which were confiscated by virtue of the search warrant.

The findings of NBI Forensic Chemist Aranas disclosed that all the
specimen submitted to her for laboratory analysis by SPO1 Pilapil, thru PO1
Barbuco, gave positive results for Methamphetamine Hydrochloride (pp. 2-9,
tsn., Dec. 3, 1991; Exh. B, C, H, I, pp. 38, 39, 44, 45, Rec.).

(pp.
102-105, Rollo.)

Carefully evaluating the evidence on record, we believe that the
prosecution has failed to prove the guilt of accused-appellant. Much is to be desired in the manner the
police authorities effected the arrest of accused-appellant and the same
observation may be made with regard to the way the prosecution conducted its
case.

Foremost among the inadequacies of the prosecution is its failure
to call to the witness stand PO1 Venerando Luna, the alleged poseur-buyer. There is, thus, a total absence of evidence
to establish the purported sale of shabu by accused-appellant to Venerando
Luna, the supposed poseur-buyer. The
omission to present the poseur-buyer casts serious doubts that an illegal sale
of a dangerous drug actually took place.

The trial court gave much weight to the testimonies of the police
members of the buy-bust operation. However, the prosecution did not present as witness the supposed
poseur-buyer. Such omission casts
serious doubt on appellant’s guilt because without the testimony of the
poseur-buyer, there is no convincing evidence to show that appellant sold
marijuana. The testimonies of the rest
of the buy-bust operation are hearsay in view of the fact that the poseur-buyer
was never presented at the trial. There
was even no testimony that when the accused-appellant handed the stuff to the
poseur-buyer that the latter in turn handed the marked money. The failure of the prosecution to present
the alleged buyer of the marijuana was a fatal flaw in the case against the accused.

(People vs. Fulgarillas, 212 SCRA
76, 80 [1992])

The testimony of prosecution witness PO3 Rogelio Francisco that
Veneracion Luna, the alleged poseur-buyer, bought shabu from accused-appellant
was derived solely from what Luna supposedly told him (pp. 19-20, tsn.,
December 11, 1991) and, therefore, is patently hearsay evidence, without any
evidentiary weight whatsoever. Likewise, the statements of prosecution witnesses Policemen Reynaldo de
la Cruz, Raymundo Untiveros, and Eduardo Novera, Jr. as to the alleged sale of
shabu are hearsay, without weight, as all of them were not present during the
alleged sale.

According to the version of the prosecution, during the alleged
buy-bust operation, accused-appellant handed over to Veneracion Luna, the
alleged poseur-buyer, a quantity of shabu, and Luna in turn paid
accused-appellant a marked P100 bill and then returned to the police station
and informed the raiding team that he had already bought the shabu from
accused-appellant. Thereupon, the
raiding team proceeded to the house of accused-appellant to implement the
search warrant. The version of the
prosecution is highly incredible. The
record is devoid of any reason why the police officers did not make any attempt
to arrest accused-appellant at the time he allegedly sold the shabu to
Veneracion Luna who was accompanied by another police officer. That was the opportune moment to arrest
accused-appellant. The version foisted
by the prosecution upon this Court is contrary to human experience in the
ordinary course of human conduct. The
usual procedure in a buy-bust operation is for the police officers to arrest
the pusher of drugs at the very moment he hands over the dangerous drug to the
poseur-buyer. That is the very reason
why such a police operation is called a “buy-bust” operation. The police poseur-buyer “buys”
dangerous drugs from the pusher and “busts” (arrests) him the moment
the pusher hands over the drug to the police officer.

We thus entertain serious doubts that the shabu contained in a
small canister was actually seized or confiscated at the residence of
accused-appellant. In consequence, the
manner the police officers conducted the subsequent and much-delayed search is
highly irregular. Upon barging into the
residence of accused-appellant, the police officers found him lying down and
they immediately arrested and detained him in the living room while they
searched the other parts of the house. Although they fetched two persons to witness the search, the witnesses
were called in only after the policemen had already entered accused-appellant’s
residence (pp. 22-23, tsn, December 11, 1991), and, therefore, the policemen
had more than ample time to plant the shabu. Corollary to the constitutional precept that, in all criminal
prosecutions, the accused shall be presumed innocent until the contrary is
proved (Sec. 14(2), Article III, Constitution of the Republic of the
Philippines) is the rule that in order to convict an accused the circumstances
of the case must exclude all and each and every hypothesis consistent with his
innocence (People vs. Tanchoco; 76 Phil. 463 [1946]; People
vs. Constante, 12 SCRA 653 [1964]; People vs. Jara, 144 SCRA
516 [1986]). The facts of the case do
not rule out the hypothesis that accused-appellant is innocent.

At any rate, accused-appellant cannot be convicted of possession
of the shabu contained in a canister and allegedly seized at his house, for the
charge against him was for selling shabu with the information alleging that the
“accused, without legal authority did . . . sell to a poseur buyer an
aluminum foil containing Methamphetamine Hydrochloride. . .”. Sale is totally different from
possession. Article 1458 of the Civil
Code defines sale as a contract whereby “one of the contracting parties
obligates himself to transfer the ownership of and to deliver a determinate
thing, and the other to pay therefor a price certain in money or its
equivalent”, while “possession is the holding of a thing or the
enjoyment of a right” as defined by Article 523 of the Civil Code. Accused-appellant cannot be convicted of a
crime which is not charged in the information for to do so would deny him the
due process of law (People vs.
Despavellador, 1 SCRA 205 [1961]; People vs. Mori, 55 SCRA 382 [1974]).

Neither can accused-appellant
be convicted of illegal possession of firearm and ammunition. The search warrant implemented by the
raiding party authorized only the search and seizure of “. . . the
described quantity of Methamphetamine Hydrochloride commonly known as shabu and
its paraphernalia” (Exh. O, p. 50, original record). Thus, the raiding party was authorized to
seize only shabu and paraphernalia for the use thereof and no other. A search warrant is not a sweeping authority empowering a raiding party to undertake a fishing
expedition to seize and confiscate any and all kinds of evidence or articles
relating to a crime. The Constitution
itself (Section 2, Article III) and
the Rules of Court (Section 3, Rule 126) specifically mandate that the search
warrant must particularly describe the things to be seized. Thus, the search warrant was no authority
for the police officers to seize the firearm which was not mentioned, much less
described with particularity, in the search warrant. Neither may it be maintained that the gun was seized in the
course of an arrest, for as earlier observed, accused-appellant’s arrest was
far from regular and legal. Said firearm, having been illegally
seized, the same is not admissible in evidence (Stonehill vs. Diokno,
20 SCRA 383 [1967]). The Constitution
expressly ordains the exclusion in evidence of illegally seized articles.

Any evidence obtained in violation of this or the preceding section
shall be inadmissible for any purpose in any proceeding.

(Section 3[2], Article III,
Constitution of the Republic of the Philippines).

With the exclusion in
evidence of the illegally seized firearm, there is, therefore, a total absence
of evidence to support the charge of illegal possession of firearm, against
accused-appellant.

The same may be said of
the charge of illegal possession of ammunition.

WHEREFORE, the decision appealed from is hereby REVERSED and accused-appellant is
hereby ACQUITTED in Criminal Case No. 236-91 and Criminal Case No.
237-91.

The immediate release of accused-appellant is hereby ordered
unless there exists a pending valid cause against him.

The shabu, the marked P100 bill, firearm, and ammunition are
hereby ordered confiscated in favor of the government.

SO ORDERED.

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