PEOPLE OF THE PHILIPPINES, PLAINTIFF/APPELLEE, VS. JOSERIEL RIGODON Y RESTON AND EFREN TORREJANO Y APARICIO, ACCUSED, JOSERIEL RIGODON Y RESTON, ACCUSED/APPELLANT.

Appellant Joseriel Rigodon y Reston and accused Efren Torrejano y
Aparicio were charged with violation of Section 4, Article 2 of the Dangerous
Drugs Act of 1972 (Republic Act 6425, as amended) before the Regional Trial
Court of Bohol, Branch II, allegedly committed as follows:

“That on or about the 31st day of July, 1992, in the
municipality of Clarin, province of Bohol, Philippines, and within the
jurisdiction of this Honorable Court, the abovenamed accused conspiring,
confederating and mutually helping each other, with intent to gain, did then
and there willfully, unlawfully, feloniously and knowingly have in their
possession and control 15 sticks of handrolled marijuana cigarettes and
thereafter did then and there willfully, unlawfully and feloniously sell, push,
deal, dispense, deliver and give away 5 sticks thereof for a consideration to a
poseur-buyer; to the damage and prejudice of the Republic of the Philippines.

“Acts committed contrary to the provisions of Sec. 4, Art. 2
in relation to Sec. 2(a), par. 1, Art. 1 of R.A. No. 6425 Otherwise known as
the Dangerous Drugs Act of 1972, as amended.” (Rollo, p. 4).

Upon arraignment, the accused pleaded not guilty to the crime
charged.

The trial court’s findings were reproduced in the Appellee’s
Brief as follows:

“PO3 Abundio Vistal, witness for the prosecution, declared
that on March 23, 1992 he was assigned by the Station Commander of the NARCOM
Detachment, as Intelligence Section of the Jagna Police Station. His duties were to conduct surveillance and
follow-ups, buy-bust operation and effect arrest (pp. 3-5, tsn, Oct. 21, 1992).

“That in the month of July 1992 he was in his office of the
NARCOTIC Command, Tagbiliran City. He
conducted surveillance at Clarin, Bohol as ordered by the Detachment Commander
Ranulfo Villamor. They received from
the then Confidential Agents PO3 Hercules Chatto and Fulgencio Claro reports
that transactions of marijuana were rampant. The corresponding surveillance was conducted which yielded positive
result. They reported the matter to the
Detachment Commander (pp. 6-7, supra).

“That in the afternoon of July 30, 1992 there was a report
that a drug pusher was selling marijuana. They decided to conduct a buy-bust operation. The Detachment Commander PO4 Ranulfo Villamor, assembled them and
formed a team which was composed of PO3 Hercules Chatto, PO3 Fulgencio Claro
and himself (pp. 8-9, supra).

“They went and arrived at Tubigon and proceeded to Clarin
between 6:30 to 7:30 o’clock in the evening of July 31, 1992 (p.5, tsn, Oct.
23, 1992) where they met their confidential agent. He approached a person near a building shop and told him that he
would buy five pieces of marijuana for P30.00 (pp. 11-13, tsn, Oct. 21, 1992). His companion (sic) served as a
back-up. He was able to buy from
Joseriel Rigodon and Efren Torrejano. It was the accused Joseriel Rigodon who handed to him the five sticks of
marijuana for which he paid P30.00 Philippine currency consisting of two
ten-peso bills and two five-peso bills (p.14, supra). He then examined the five sticks of
marijuana and smelled them and found the same to be marijuana (p.15, supra). At this juncture he
signaled to his companions by taking off his Piercing (sic) cap. His companions immediately effected the
arrest of the two accused Joseriel Rigodon and Efren Torrejano and recovered
the money he paid. The bills paid were
initialed by their Detachment Commander (pp. 15-17, supra). There were ten more marijuana sticks taken
from the accused Joseriel Rigodon. The
two accused were brought to Clarin (pp. 18-19, supra).

“The prosecution offered in evidence the following exhibits,
to wit:

“Exh. A & A1,                        Marked
money of two ten-peso bills

B & B1,            Another marked money of two
five-peso bills

C,                                Complaint
(pp. 2-3, tsn, Nov. 5, 1992).” (Rollo, pp. 42-44)

On the other hand, appellant Rigodon’s and accused Torrejano’s
versions of the events which led to their arrest were summarized by the trial
court as follows:

“Joseriel Rigodon, one of the accused in the instant case,
declared that at 7:00 o’clock in the morning
of January 31, 1992 he was at the store of Norma Torrejano located at
Poblacion Centro, Clarin, Bohol, located along the national highway to buy
gillet (sic) blade because somebody came to him to have a haircut. He was not able to buy for the owner of the
store was busy. While waiting for the
storekeeper there was an unusual incident. Somebody approached and asked him if he knew Dondong Aleman which he
answered in the affirmative. As
requested he went to the house of Dondong Aleman. It turned out that the person who requested him to go to the house of Dondong Aleman was
Patrolman Vistal.

“Upon his return from the house of Dondong Aleman, Patrolman
Vistal requested to accompany him which he consented. They then rode in a jeep. He did not know the person during the ride in the jeep. The person at his side was SPO4
Villamor. There were many persons at
the back of the jeep. Upon reaching the
house of Dondong they disembarked from the jeep. He accompanied them to the house of Dondong Aleman. While at the house of Dondong he saw
Villamor and Dondong talking. Then they
left. Upon arrival at Tubigon they were
made to go to the police headquarters. In the police headquarters, his companions were Efren, Villamor, Vistal
and Claro. From Tubigon they rode in a
passenger bus for Tagbilaran together with Efren, Claro and Vistal. At the office of the NARCOM they were
escorted by Vistal.

“Efren Torrejano, accused in the instant case, declared that
in the morning of July 31, 1992 he was at Poblacion Centro, Clarin, Bohol. That his house is located below the public
market of Clarin. He is a carpentry
helper. On July 31, 1992 he had a
work. Before he went to work he went to
the store of Norma Torrejano to buy cigarettes. He was then bringing a paleta, an instrument used in mixing
cement and sand. He was held and
required by Mr. Claro to ride in a jeep with several policemen from
Tubigon. He complained but was told not
to ask questions. The jeep stopped at
the house of Dondong Aleman. The
accused Joseriel Rigodon and Villamor alighted from the jeep. They went to the municipal building of
Clarin. From Clarin they were brought
to Tubigon, then to Tagbilaran. He told
his mother that he was maltreated.

“The defense offered in evidence the following exhibits, to
wit:

“Exh. 1,                                 Complaint

1-A & 1-D,                   Portion
on Exhibit 1

1-B & 1-C,                   Withdrawn”
(Rollo, pp. 15-16)

The defense also presented Cecilio Bayal who testified that he was
constructing a new house and accused Torrejano was one of the carpenters; said
construction began in 1991 and ended on July 31, 1992 (Rollo, p.15).

After assessing the evidence adduced at the trial, the trial
court found appellant Joseriel Rigodon guilty beyond reasonable doubt of the
offense charged and sentenced him to suffer the penalty of reclusion
perpetua and to pay a fine of P20,000.00, without subsidiary imprisonment
in case of insolvency, and to pay the costs (Rollo, p.18). Torrejano, on the other hand was
acquitted. The dispositive portion of
said decision reads as follows:

“PREMISES CONSIDERED, the court finds the accused Joseriel
Rigodon guilty of the crime of Violation of Sec. 4, Art. 2 of Republic Act No.
6425 and hereby sentences him to suffer an imprisonment of Reclusion Perpetua
and a fine in the amount of P20,000.00 without subsidiary imprisonment in case
of insolvency (Par. 3 of Art. 35 Revised Penal Code) with the accessories of
the law and to pay the costs.

“The sticks of marijuana cigarettes which are the subject
matter of the instant case are hereby ordered confiscated in favor of the
government.

“It appearing that the accused Joseriel Rigodon has undergone
preventive imprisonment, he is entitled to the full term of his preventive imprisonment
to be deducted from his term of sentence if he has executed a waiver,
otherwise, he will only be entitled to 4/5 of the time of his preventive
imprisonment to be deducted from the term of his sentence if he has not
executed a waiver.

“The accused Efren Torrejano is hereby acquitted of the crime
as charged, with costs de oficio.

“SO ORDERED.” (Rollo, p.18)

In assailing the trial court’s decision, appellant assigns the
following errors allegedly committed by the court a quo:

“1. The Honorable Judge of the Regional Trial
Court of Bohol, Branch Two (2) erred in overlooking the principle of conspiracy
where the guilt of one is the guilt of all; and the acquittal of one in the
conspiracy is also the acquittal of the other.

“2. The Honorable
Judge of the Regional Trial Court of Bohol, Branch Two (2) erred in convicting
Joseriel Rigodon despite the fact that there is no evidence against him. That he should have been acquitted like
co-accused Efren Torrejano, because the role played by Joseriel Rigodon was
actually for the pointing out of the dwelling and person of the big time
supplier of marijuana in Bohol. That
his conviction is an irony.

“3. That the Honorable Judge of the Regional
Trial Court of Bohol, Branch Two (2) erred in convicting Joseriel Rigodon
despite the fact that the prosecution completely failed to present the alleged
15 sticks of marijuana, completely failed to present any laboratory analysis,
completely failed to present their named chemist. What was presented was only the complaint and the two (2) ten
peso bills and two (2) five peso bills claimed as marked which can easily be
produced by anybody.” (Appellant’s Brief, pp. 1-2)

On the other hand, the Solicitor General submitted, in lieu of brief, a Manifestation and
Motion praying for the acquittal of appellant.

The Court agrees.

This Court has held that the elements necessary for a charge of
illegal sale of marijuana are: (1) the
identity of the buyer and the seller, the object, and consideration; and (2)
the delivery of the thing sold and the payment therefore (People v. Esguerra,
221 SCRA 261 [1993]; People v. Rumeral, 200 SCRA 194 [1991]).

Not all the evidence required for proving the crime charged were presented by the
prosecution. It is indispensable that
the identity of the marijuana which constitutes the corpus delicti must
be established before the court (People
v. Gesmundo, 219 SCRA 743 [1993]).

During the trial, the sticks of marijuana were never presented as
evidence to prove that appellant indeed sold the same during the entrapment
operation. It is an entrenched rule in
our jurisprudence that indispensable in every prosecution for illegal sale of
marijuana, a prohibited drug, is the submission of proof that the sale of the
illicit drug took place between the poseur-buyer and the seller thereof, and
the presentation further of the marijuana, the corpus delicti, as
evidence in court (People v. Pacleb, 217 SCRA 92 [1993]; People v. Labarias,
217 SCRA 483 [1993]).

As elucidated in the case of People v. Gesmundo (supra):

“On the issue of non-delivery of the seized marijuana to the
court, the trial court held that it takes ‘judicial notice of the usual
practice of the San Pablo City police force of retaining possession of
confiscated specimens suspected of being marijuana by immediately forwarding
them to the NBI or to an NBI accredited physician for preliminary examination before filing a case with the city
prosecutor’s office. The mere
tolerance by the trial court of such a practice does not make it right. Clearly, such practice violates the
mandatory requirements of the law and defeats the very purpose for which they
were enacted. Speculations as to the
probability of tampering with the evidence cannot then be avoided.'”(Underscoring
supplied)

The trial court found appellant guilty beyond reasonable doubt despite the fact that
the sticks of marijuana allegedly bought and found in appellant’s possession
were never presented before it. The
court a quo merely relied
on the uneducated opinion of PO3 Abundio Vistal that what he recovered from
appellant were indeed sticks of marijuana.

True, a chemical analysis is not an indispensable requisite to
establish whether a certain substance offered in evidence is a prohibited drug
or not, the reason being that the ability to recognize these drugs can be
acquired without a knowledge of chemistry to such an extent that the testimony
of a witness on the point may be
entitled to great weight (People v. Enrique, Jr., 204 SCRA 674 [1991]).

In this case, the apprehending officer’s declaration that what he
examined and smelled was indeed marijuana is incompetent and inadmissible in
evidence. In People v. Enrique (supra),
the police officer involved therein conducted an immediate field testing called
“Narcotest Disposakit 9” in his office to make sure that the evidence
obtained from the accused was indeed marijuana. This kind of test was declared judicially admissible owing to the
fact that said officer underwent special training for the purpose and whose initial
finding was confirmed by the PC crime laboratory.

As aptly observed by the Solicitor General, the apprehending
officer’s alleged ability to recognize a prohibited drug in the case at bar was
not the product of any training or experience as a narcotics agent. On the contrary, it was based merely on the
alleged briefing given by the detachment commander.

PO Vistal testified as follows:

“Court: Why do you say that they
are marijuana?

“A:   Because
I smelled them your honor.

“Q:  Now,
what was the smell?

“A:   When
I smelled it, the smell was the same as marijuana.

“Q:  Did
you conduct a seminar regarding the identification of marijuana?

“A:   I
have not attended a seminar.

“Q:  What
is the basis of this conclusion that the 5 sticks of marijuana were in fact and
in truth marijuana?

“A:   Because
we were briefed before by our detachment commander.” (Rollo, pp. 46-47)

This Court sustains the rule that police officers in buy-bust
operations are entitled to the presumption of having acted pursuant to official
duty (People v. Cruz, 215 SCRA 339 [1992]). However, this presumption that official duty is regularly performed
cannot prevail over the constitutional presumption of innocence accorded to an
accused (People v. Taruc, 157 SCRA 178 [1988]) especially so where there is no
sufficient evidence to warrant a conviction. It is a settled rule that an accused is entitled to the constitutional
presumption of innocence which may be overcome only with proof beyond
reasonable doubt that he is guilty of the offense charged (People v. Colcol,
Jr., 219 SCRA 107 [1993]). Absent the corpus delicti and its examination as a proof of its
being a prohibited merchandise, the conviction of appellant has no leg to stand
on.

WHEREFORE, appellant Joseriel Rigodon is
hereby ACQUITTED on the ground of
reasonable doubt and is ordered immediately released from detention unless he
is being held for some other legal cause or ground.

SO ORDERED.

Romero, Melo, and Vitug,
JJ., concur.

Feliciano, J., on leave.