THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ALLAN SARMIENTO Y LARGO AND ALBERTO MOORE, ACCUSED. ALLAN SARMIENTO Y LARGO, ACCUSED-APPELLANT.

The Court will have to affirm the decision of the lower court
sentencing the accused-appellant to the penalty of reclusion perpetua,
for violation of the Dangerous Drugs Act.  We do this with a heavy
heart for he was less than sixteen years old when he committed the crime on
September 20, 1984, and even
now he is still a minor.^[1] But the law
is the law.  As judges, we have the duty to apply it, for all its
seeming harshness, notwithstanding considerations of compassion that can at best
only mitigate but not entirely condone the punishment.

The case is simplicity itself.  On the above date,
the accused-appellant was arrested at a billiard hall in the City of
Tagbilaran
by agents of the PC Narcotics Command shortly after passing four marijuana
sticks to a PC informant who was posing as a buyer.  The
accused-appellant had obtained the cigarettes from Albert Moore, to whom he also
gave the marked money paid by the buyer. 
Moore escaped although he was
apprehended later.  Sarmiento was taken
to the NARCOM headquarters for investigation, and there he signed a confession
that he was subsequently to repudiate at his trial.^[2]

The accused-appellant originally pleaded guilty to the charge
against him, but upon rearraignment on motion of his
new counsel, he changed his plea to not guilty.^[3] Moore, his co-accused, was not tried
because he was found to be a drug dependent.  In accordance with
Section 31 of R.A. No. 6425, he was committed to the NBI Treatment and
Rehabilitation
Center on recommendation of an
accredited doctor of the Dangerous Drugs Board.^[4]

The prosecution established the basic facts as narrated above
through the testimony of Sgt. Renato Remetiera, NARCOM detachment commander, Sgt. Alejandro Biñan, and Agent Teodosio Rosaroso.^[5] It also
introduced the PC Crime Laboratory chemistry report, admitted by the defense at
the pre-trial conference, that the cigarettes seized by the arresting officers
at the time of the accused-appellant’s arrest were positive for marijuana.^[6] In addition to the said cigarettes and
other exhibits, the sworn confession signed by the accused-appellant was also
offered in evidence against him.^[7]

Testifying as the lone witness for the defense, the
accused-appellant practically admitted, on both direct and cross examination,
that he had been approached by a person he identified as John Tagalog for marijuana cigarettes; that he said he would ask
Moore; that he got the narcotics from Moore after paying him the money he got
from Tagalog; and that he then gave the four sticks of
marijuana to Tagalog.  The rest of his
testimony sought to show that he had been forced to sign his confession; that he
did not know its contents; and that at the time it was taken he did not have the
assistance of counsel or even his parents.^[8]

Although there is no evidence of the physical maltreatment of the
accused-appellant, we nevertheless will reject the said confession because the
record shows that it was obtained from Sarmiento without advice of counsel.^[9] Despite the reservations of some members
of this Court, including the writer of this opinion, the ruling doctrine still
requires that the waiver of the assistance of counsel should be made with the
assistance of counsel.^[10]

But such rejection notwithstanding, the Court believes that the
other evidence presented by the prosecution, not to mention Sarmiento’s own testimony, is sufficient to establish his
guilt beyond reasonable doubt.  The narration by the prosecution
witnesses of the actual commission of the crime has not been refuted but was in
fact supported by the defendant himself.^[11]

Significantly, the argument of the accused-appellant in his brief
is limited to a little more than one double-spaced page only and does not deny
the allegation that he actually passed the four sticks of marijuana from Moore
to the poseur-buyer.^[12] His disclaimer
of criminal responsibility is based on the argument that a) he did not benefit
from the transaction; b) none of the sticks was found in his possession; c) the
marked money was never presented in evidence; and d) the buyer was not called to
testify.^[13]

The applicable provision of the Dangerous Drugs Act is as
follows:

“Sec. 4. 
Sale,
Administration, Delivery, Distribution and Transportation of Prohibited
Drugs.  — The penalty of life imprisonment to death and a
fine ranging from P20,000.00 to P30,000.00 shall be imposed upon any person who,
unless authorized by law, shall sell, administer, deliver, give away to another,
distribute, dispatch in transit or transport any prohibited drug, or for acting
as a broker of any such transactions.  If the victim of the offense
is a minor or should a prohibited drug involved in any offense under this
section be the proximate cause of the death of victim hereof, the maximum
penalty herein provided be imposed (as amended by PD 1675 dated Feb. 17, 1980).”

It is obvious from the above-quoted section that criminal
liability shall attach to any unauthorized person who shall “sell, administer,
deliver, give away to another, distribute, dispatch in transit or transport any
prohibited drug, or for acting as a broker of any such transaction.” No
pecuniary advantage need be proven.  Actual physical possession at
the time of arrest is not necessary and is in fact incompatible with the various
acts punished, which involve precisely a transfer of possession.

It was not necessary either to present the marked money because
Sarmiento had already admitted receiving the same from
the poseur-buyer and giving it to Moore, who had escaped.^[14] As for the non-presentation of the buyer,
the Solicitor General correctly observed that the defense had every right to
call such witness if it wanted to and could not now fault the prosecution for
not doing so.^[15] For its part, the
prosecution had the right to present its case as it saw fit.

It is ironic that Albert Moore, who actually owned and sold the
marijuana cigarettes, has been spared the severe penalties of the law, and this
because he was a drug dependent.  His own addiction saved him from
a prison term.  By contrast, the accused-appellant, who is not a
drug addict, must face the consequences of his act which has condemned him to
imprisonment for life.  The theory is that, having better control
of his will, the violator who is not a drug dependent cannot claim the
tenderness extended by the law to the latter.

There seems to be something unfair in the situation of Sarmiento, who was not yet sixteen when he was arrested, but
as we remarked at the beginning of this opinion, dura lex, sed lex.  In these
circumstances, this youthful offender, who on top of everything is not entitled
to suspension of his life sentence under the Child and Youth Welfare Code, as
amended,^[16] can only hope for the grant
to him of executive clemency if and when he can show he deserves it.

Drug addiction is an international problem that, unfortunately,
has not spared our country and in fact has victimized not an inconsiderable
number of our people, especially the youth.  That problem is far
from contained and indeed may even get worse unless adequate steps are taken to
prevent it from spreading even wider.  It is for this reason that
our government is taking serious measures, including severe penalties not
normally permitted but for the gravity and proliferation of this terrible
offense.  Against this affliction that has irretrievably destroyed
the future of millions of persons who could otherwise have been useful members
of society, we must take a united and determined stand.

WHEREFORE, the decision of the trial court is affirmed,
without any pronouncement as to costs.  It is so ordered.

Yap, (Chairman), Narvasa, Melencio-Herrera, and Feliciano, JJ.,
concur.

^[2] TSN, Aug. 5, 1985, pp. 33-34.

^[3] Rollo, p. 12.

^[4] Ibid., pp.
11-12.

^[5] Id., pp. 14-16.

^[6] Exh.
G.

^[7] Exhs.
C and C–1.

^[8] August 5, 1985, pp. 30-38.

^[9] Exhs.
C and C-1, supra.

^[10] Morales v. Ponce
Enrile, 121 SCRA 538; People v. Galit, 135 SCRA 465, reiterated in
People v. Hon. Luis Sison, 142 SCRA 219, People v.  Quizon, 142 SCRA 362, and People v.
Pecardal, G.R. No. 71381, November 24, 1986.

^[11] Rollo, pp. 17-18.

^[12] Brief for the Appellant, pp.
3-4

^[13] Ibid., pp. 2-4.

^[14] TSN, August 5, 1985, p. 32.

^[15] Brief for the Appellee, p. 10.

^[16] Art. 192, last
par. P.D. 603, as amended by P.D. 1179.