PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. PEDRO ESTILLERO Y ABESA, DEFENDANT-APPELLANT.

To a charge of drug-pushing,
in violation of Republic Act 6425, otherwise known as the Dangerous Drugs Act,
the appellant pleaded not guilty upon arraignment on February
4, 1987 in Criminal
Case No. RTC ‘87-1530, entitled “People of the Philippines vs. Pedro Estillero,
Jr.” in the Regional
Trial Court of Naga City.

Based on information
given to the Naga City police by a police informant, Amelita Catolico, that marijuana
was being sold at the public market, police lieutenant Tomas Rentoy, Officer-in-Charge of the Anti-Narcotics Unit,
together with patrolmen Rodolfo Imperial, Benjamin Navarro, Jr. and policewoman
Lorna Fernandez, decided to conduct a “buy-bust operation” (p.
18, Rollo) on January 21, 1987.  The informant, Amelita
Catolico was to pose as a buyer, using marked money
in the amount of Twenty Pesos (P20.00),
consisting of two (2) five-peso bills bearing Serial Nos. KL973450
and BM563678 and a ten-peso bill bearing Serial Number AB238388.  The policemen had the paper bills xeroxed before they proceeded to the Naga City
public market at 7:30 in the evening of January 21, 1987. 
Acting according to plan, the policeman stayed beside the Regina Dry
Goods Store while Amelita Catolico proceeded to the open patio, which was five to seven meters
away, where the accused was loitering at the time.  Upon approaching the accused, Catolico handed the marked money over to him.

When Lt. Rentoy and his
group saw that the accused “already gave something” (p. 19, Rollo) in
a silver-colored cigarette foil to Amelita, they approached the accused and announced that
they ware arresting him.  The accused
took to his heels but the policemen gave chase until they caught him.  He was immediately brought to the police headquarters, where he was subjected to search and
investigation.  The marked money was seized from him by Rentoy.  Amelita Catolico turned over to Lt. Rentoy the marijuana cigarette
she bought from the accused.  It was subjected to the Duquanois Levine
Regent System test.  At Camp Bagong Ibalon Crime Laboratory in Legaspi City,
the dried leaves were also subjected to a phine layer
promotographic examination.  Both tests proved that the confiscated stuff
was marijuana which weighed approximately three (3) grams.

The accused denied having
sold a marijuana cigarette to Catolico
(whom he did not know personally) or received P20 from the latter.  He alleged that
he was the victim of a frame-up by the police. 
He testified that at around 7:30 o’clock in the evening of January 21,
1987, he was in the open patio of the
Naga City public market, waiting for his employer
Ramon Agubang to pay him his daily wage as a carinderia
helper, when Patrolman Navarro, in the company of some other policemen, arrived
and upon seeing him, called him to ask about the whereabouts of a certain
“Kilas.” When he answered that he did not
know “Kilas” he was brought to the police
headquarters and placed inside the jail. 
They threatened to charge him with possession of marijuana if he refused
to tell them the whereabouts of “Kilas,” but they promised to set him free if he gave
them the information they wanted.  He
insisted that he did not know “Kilas.” His
employer Ramon Agubang testified that when he
returned to his carinderia at around 8:00 p.m., he learned that the accused, whom he had not yet paid his wages had been apprehended by
the police and incarcerated.

On April 18, 1988,
the trial court rendered judgment finding the accused guilty beyond reasonable
doubt of the crime charged and sentenced him to suffer the penalty of reclusion
perpetua, to pay a fine of P20,000,
and the costs.

The accused appealed to this Court, alleging that the lower court
failed to consider the following material facts:

1.     The
failure of the prosecution to rebut his testimony that he was the victim of a
frame-up by the arresting officers.

2     
The failure of the prosecution to present in court the alleged poseur-buyer Amelita Catolico who was the
principal participant in the
entrapment of the accused.

3.     That
the sale of marijuana allegedly took place in the patio of the public market in
full view of many persons and the apprehending officers.

We find merit in the
appeal.  The appellant’s guilt has not
been proven beyond a reasonable doubt.

Firstly, his denial of the charge of drug-pushing and his
allegation that he was framed by the policemen because he could not give them
information regarding a certain “Kilas” was
not rebutted by the prosecution.  The
presumption that official duty had been regularly performed cannot prevail over
the Constitutional presumption of innocence
enjoyed by an accused person particularly when the prosecution’s
evidence is weak.

It is unbelievable that the appellant would have sold marijuana
leaves openly in the patio of the public market, to a complete stranger like Catolico.  Even if he
was engaged in that business, it is improbable that he would have risked
getting caught and spending the rest
of his life behind bars for the pittance of P20 supposedly proferred
to him by Catolico.

The failure of the prosecution to present the supposed
poseur-buyer, Amelita Catolico,
was fatal to its case.  Without her
testimony identifying the accused as the supposed drug-pusher, there was no
proof that she bought and he sold the marijuana to her.  The prosecution failed to explain why it
could not present her.  The presumption
is that her evidence would have been adverse if produced (Rule 131, Sec. 5[e], Rules of Court).

In People vs. Laureano Fernando, 145
SCRA 151, this Court harked back to “the fundamental precept that the
prosecution carries the burden of proof to establish the guilt of the accused
beyond reasonable doubt for it is not incumbent upon the accused to disprove
his guilt.” Hence, without the testimony of the poseur-buyer, the Court
found no convincing evidence pointing to the accused as having feloniously sold
and delivered the marijuana cigarettes.

The Solicitor General, in his brief for the People, recommended
the acquittal of appellant Estillero on the ground
that his guilt had not been demonstrated beyond a reasonable doubt.  We agree.

WHEREFORE, as recommended, the judgment of the trial court
is reversed and set aside, and the accused Pedro Estillero,
Jr. y Abesa is acquitted of the crime charged.  Costs de oficio.

SO ORDERED.

Narvasa, (Chairman), Cruz, and Gancayco, JJ., concur.

Medialdea, J., on leave.