G.R. No. 79965. May 25, 1994
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. PABLO RODRIGUEZ Y COTARIAN, ACCUSED-APPELLANT.
QUIASON, J.:
This is an appeal from the decision of the Regional Trial Court,
Branch XVIII, Tabaco, Albay, in Criminal Case No. T-1374, finding appellant
guilty beyond reasonable doubt of violating Section 4, Article II of the
Dangerous Drugs Act of 1972 (R. A. No. 6425 as amended by B. P. No. 179).
I
The Information charged appellant as follows:
“That on or about the 21st day of June, 1984, at 3:30 o’clock
(sic) in the afternoon, more or less,
at the ground floor of the Tabaco Bus Terminal, Municipality of
Tabaco, Province of Albay, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, without being authorized by law or
any government agency, did then and there willfully, unlawfully, feloniously
and with deliberate intent to violate the law had in his possession and control
dried Marijuana leaves and seeds, sell, deliver and distribute sticks of
Marijuana” (Rollo, p. 13).
On May 7, 1985, appellant assisted by his counsel, pleaded not
guilty to the information.
On July 8, 1986, the trial court rendered its decision, finding
appellant guilty beyond reasonable doubt of delivering, distributing and
selling marijuana. The dispositive
portion of the decision reads as follows:
“WHEREFORE, judgment is hereby issued, sentencing the accused,
Pablo Rodriguez y Cotarian, to the penalty of life imprisonment, to pay a fine
of P20,000.00 and with costs” (Rollo, p.
32).
Hence, this appeal.
II
The facts, as found by the trial court and presented by the
Solicitor General, are as follows:
“On July 21, 1981, at about 3:00 o’clock (sic) in the
afternoon, the Tabaco Police Station received a report from an unidentified
telephone caller that somebody was selling marijuana inside the Wonder Dog
Circus. Forthwith, Pats. Rogelio
Gonzales and Benito Bongalos proceeded to the Wonder Dog Circus near the public market of Tabaco, to verify
the report. Arriving at the place, they
spotted appellant Pablo Rodriquez and Gregorio Abrera acting suspiciously. Abrera was putting marijuana inside his
pocket (tsn., June 11, 1985, pp. 3-4).
Accordingly, Pats. Gonzales and Bongalos approached appellant and
Abrera and, after introducing themselves as police officers, placed the two
under arrest. Pat. Gonzales found a
small packet containing marijuana (Exhibit “B”) inside the right side
pocket of appellant’s pants (tsn., June 11, 1985, pp. 4-5). Upon the other hand, Abrera voluntarily
handed over a plastic tea bag containing marijuana (Exhibit “C”) to
Pat. Gonzales (tsn., October 15, 1985, pp. 6, 8).
Appellant and Abrera were then brought to the police station where
they, as well as the items confiscated from them, were turned over to Cpl.
Santos Colarina, Chief Investigator of the Tabaco Police Station (tsn., June
11, 1985, p. 5).
When investigated, Abrera voluntarily admitted having possessed the
marijuana confiscated from him but pointed at appellant as the one who gave him
the marijuana and blamed appellant for it (Exhibit “D”). Even as appellant heard Abrera making said
statements, appellant kept silent and failed to react (tsn., October 15, 1988,
p. 41).
Lt. Lorlie Arroyo, Forensic Chemist of the PC Crime Laboratory,
Camp Bagong Ibalon, Legaspi City, conducted an examination on the items seized
from the appellant and Abrera and found them to be positive of marijuana (tsn.,
May 7, 1985, pp. 11, 28).
Consequently, appellant was charged with violating Section 4,
Article II, of R. A. No. 6425, as amended. Abrera, upon the other hand, was not similarly charged presumably
because he was a user. Anyway, it was
allegedly the Station Commander of the Tabaco Police Station who opted not to press charges against
Abrera (tsn., October 15, 1985, pp. 19-20)” (Brief for Plaintiff-Appellee,
pp. 3-5; Rollo, p. 96).
On the other hand, appellant gave the following version of the
incident:
“xxx. On June 21, 1984
at about 3:30 o’clock in the afternoon, he and a certain Rogello
“Lilio” Cardano were at the “Wonder Dog Cirus” at the bus
terminal of Tabaco, Albay, as they were selling an amplifier. Suddenly, they were searched by Patrolman
Gonzales and Bongalos, without any warrant, due to alleged information that
they were selling marijuana (TSN, May 12, 1986, p. 4). But the policemen did not find any
marijuana. Instead, they found in his
bag three (3) fifty-peso bills (P150.00), the price of the amplifier, which was
already in the possession of the buyer, the owner of the circus (TSN, id., p. 5). Pat. Gonzales took the amount and returned it to the operator of the
circus (TSN, id., p. 7). Subsequently,
the accused and Abrera were brought to the Police Station, where the accused
was locked-up and mauled inside the prison cell (TSN, id., p. 5). While in prison, the accused was approached
by Pat. Gonzales, who told him that he also had marijuana for sale at P200.00
which he showed him (TSN, id., p. 6). However, the accused refused the offer (TSN, id., p. 7). The amplifier was brought to the police
station and returned to the accused by investigator Colarina (TSN, id., pp.
7-8). The accused was detained for
one-and-a-half months, while Abrera was not (TSN, id., p. 6)” (Appellant’s
Brief, pp. 9-10).
Appellant contends that the trial court erred in convicting him
of the offense charged. He assigns the
following errors:
THE TRIAL COURT ERRED IN CONVICTING THE
ACCUSED BASED ON THE CONJECTURAL AND CONFLICTING TESTIMONIES OF THE
PROSECUTION.
THE TRIAL COURT ERRED IN CONVICTING THE
ACCUSED BASED ON THE MARIJUANA SEIZED BY THE ARRESTING OFFICERS WITHOUT
WARRANT.
THE TRIAL COURT ERRED IN CONVICTING THE
ACCUSED BASED ON HIS SILENCE.
THE TRIAL COURT ERRED IN ADMITTING IN
EVIDENCE THE SWORN STATEMENT OF GREGORIO ABRERA, WHO DID NOT TAKE THE WITNESS
STAND, DESPITE HAVING BEEN LISTED AS ONE OF THE PROSECUTION WITNESSES.
THE TRIAL COURT ERRED IN CONVICTING THE
ACCUSED BASED ON THE PRESUMPTION THAT OFFICIAL DUTY HAS BEEN REGULARLY PERFORMED.
III
In his brief, the Solicitor General agreed with appellant’s
posture that the prosecution failed to establish the act of unlawfully selling,
distributing and delivering marijuana as alleged in the Information (Brief for Plaintiff-Appellee, p. 7; Rollo;
p. 96). But he claimed that the
prosecution’s evidence indubitably established that appellant, having been
caught in flagrante delicto in possession of marijuana committed the
crime of illegal possession of marijuana under Section 8, Article II of R. A.
No. 6425, as amended (Brief for Plaintiff-Appellee, p. 9; Rollo, p. 96).
We agree with the Solicitor General’s assertion that the
prosecution failed to establish that appellant sold, distributed and delivered
marijuana.
The records show that the two prosecution witnesses did not
actually see appellant transact any business dealing with marijuana. On cross examination, Pat. Gonzales
testified as follows:
ATTY. GONZAGA:
“Q You
mentioned of an investigation. There
was actually no selling or transacting of marijuana. Is that right?
A I did not see them actually
transacting. However we saw them acting
suspiciously.
Q But
you did not see Pablo Rodriguez giving any marijuana to Abrera?
A I
did not. But when we were getting near
them (accused), they started to leave. (TSN, June 11, 1985, p. 10; underscoring supplied).
Pat. Gonzales, upon further questioning by the trial court, said
that:
COURT:
“Q But
you did not see actually (sic) Rodriquez giving the marijuana to Abrera?
A. No,
Your Honor, I did not”
(TSN, June 11, 1985, p. 10, underscoring supplied).
Pat. Bongalos also could not say whether appellant was selling,
distributing or delivering marijuana to Abrera when he was placed under arrest.
The person, who is in the best position to testify whether appellant
sold marijuana or not, was Abrera, as he was the person whom appellant
allegedly dealt with. We are placed at
a quandary as to why Abrera was not prosecuted together with appellant nor was
he made to testify for the prosecution when he was named as one of the its
witnesses. As testified to by the
prosecution witnesses, Abrera was not similarly charged with appellant because
Abrera, when investigated, pointed to appellant as the person who gave him the
marijuana. The reliance made by the
police investigator on Abrera’s word is simply puzzling.
We have held that “xxx,
when a party has it in his possession or power to produce the best
evidence of which the case in its nature is susceptible and withholds it, the
fair presumption is that the evidence is withheld for some sinister motive and
that its production would thwart his evil or fraudulent purpose (Ching Sui Yong
v. Intermediate Appellate Court, 191 SCRA 187 [1990]).
The sworn statement executed by Abrera, (Exh. D) pointing to
appellant as the person who gave him a tinfoil of marijuana is inadmissible in
evidence and has no probative value. The failure of the prosecution to present Abrera in court although he was named as one of the prosecution
witnesses deprived the accused the opportunity to cross-examine his
accuser. “xxx [C]ross-examination is an indispensable instrument of
criminal justice to give substance and meaning to the constitutional right of
the accused to confront the witnesses against him and to show that the
presumption of innocence has remained steadfast and firm” (People v. Pido,
200 SCRA 45 [1991]).
Having held that appellant is not guilty of the offense charged
under Section 4, Article II of the Dangerous Drugs Act, we shall now dwell on
the question whether appellant is guilty of possession of marijuana under
Section 8, Article I of the same Act.
After a careful review of the records and transcript of
stenographic notes, we find that appellant should likewise be acquitted of the
offense of possession of marijuana.
Admittedly, Pat. Gonzales searched appellant without a
warrant. It is contended however that
the warrantless search was incidental to a lawful arrest. The arrest of appellant itself was also made
without a warrant of arrest. In such a
case, the arrest can be justified only if there was a crime committed in the
presence of the arresting officers.
The arresting officers went to the “Wonder Dog Circus” to
verify a telephone call that a person with a knapsack had marijuana in his
possession. Pat. Gonzales admitted that
they arrested appellant because he acted suspiciously.
Part of his testimony is reproduced as follows:
ATTY GONZAGA:
(CROSS EXAMINATION)
“Q You
said that at the premises of the Wonder Dogs circus, you saw the
accused acting suspiciously. Is that right?
A Yes, sir.
Q But you were actually there?
A Yes, sir.
Q And you introduced yourselves as
members of the INP?
A Yes, sir.
Q After which, you frisked Pablo
Rodriquez?
A Yes,
sir.
Q And in fact, you found inside his
pocket this Exhibit “B”. Is
that right?
A Yes, sir.
Q You did the investigation per
instruction from your police headquarters. Is that right?
A Yes, sir.
Q So you acted merely from the
information thru the telephone and the suspicious acting of the accused.
A Yes, sir.
Pat. Bongalos also admitted that he did not personally know
whether appellant was in possession of the prohibited drug. He testified as follows:
FISCAL VILLAMIN: (Continuing)
“Q. For what was he investigated of?
A For
the possession of marijuana.
Q Why
do you know that he was in possession of marijuana?
A Because
from (sic) the information received thru a telephone call that a person with a
knapsack was in possession of marijuana” (TSN, October 15, 1985, p.
11; Underscoring supplied).
There is no
evidence to show that appellant was committing any crime at the time of his
arrest.
The testimony of Pat. Gonzales on the arrest of appellant is
reproduced as follows:
FISCAL VILLAMIN:
(DIRECT EXAMINATION)
“Q How did you effect the apprehension?
A While we were approaching the accused, we
saw them putting something inside a bag.
Q What did you do then?
A We apprehended them.
Q Whom did you apprehend?
A Pablo Rodriquez and Abrera.
Q What procedure did you observe in
arresting Rodriquez?
A Furnished with the necessary
information, we arrested the accused while he was transacting marijuana.
Q While making the arrest, what did you
do?
A I asked the accused what he was
placing inside his pocket, and I found out that it was marijuana” (TSN,
June 11, 1985, p. 4; Underscoring supplied).
To the question of the defense counsel as to whether he saw
appellant selling marijuana, Pat. Gonzales answered:
“I did not see them actually transacting. However, we saw them acting
suspiciously” (TSN, June 11, 1985; p. 10).
To the same question of the trial court, Pat. Gonzales answered:
“No, Your Honor, I did not” (TSN, June 11, 1985, p. 10).
The cardinal rule is that no person may be subjected by the
police to a search of his house, body or personal belonging except by virtue of
a search warrant or on the occasion of a lawful arrest (People v. De la Cruz,
184 SCRA 416 [1990]).
“If a person is searched without a warrant, or under
circumstances other than those justifying an arrest without warrant in
accordance with law, merely on suspicion that he is engaged in some felonious enterprise, and in order to discover
if he has indeed committed a crime, it is not only the arrest which is illegal
but also, the search on the occasion thereof as being ‘the fruit of the poisonous
tree’” (Guazon v. De Villa, 181 SCRA 623 [1990]; People v. Aminnudin, 163
SCRA 402 [1988]; U.S. v. Santos, 36 Phil.
853 [1917]; U.S. v. Hachaw, 21 Phil. 514 [1912]). In that event, any evidence taken, even if
confirmatory of the initial suspicion, is inadmissible “for any purpose in
any proceeding” (Nolasco v. Paño, 147 SCRA 509 [1987]; People v. Burgos,
144 SCRA 1 [1986]).
The marijuana supposedly confiscated from appellant is therefore
inadmissible in evidence for having been taken in violation of his
constitutional right against unreasonable searches and seizures.
WHEREFORE, the Decision of the Regional Trial Court
convicting appellant is REVERSED AND SET ASIDE. Appellant is ACQUITTED of the offense charged for failure of the
prosecution to prove his guilt beyond reasonable doubt.
SO ORDERED.
Davide, Jr., and
Bellosillo, JJ., concur.
Cruz, (Chairman), and
Kapunan, JJ., on leave.