THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. QUEROBEN POLIZON Y ACLA, ACCUSED-APPELLANT.

People versus Polizon

The Case

This is People versus Polizon, a criminal appeal from a conviction for selling marijuana under the Dangerous Drugs Act. The accused, Queroben Polizon y Acla, was charged with violating Section 4, Article II of Republic Act Number 6425, as amended, for allegedly selling one tea bag of dried marijuana leaves for ten pesos in a buy-bust operation at Ramonal Village, Cagayan de Oro City, on the evening of August 20, 1986. The case matters because it draws the dividing line between entrapment, which does not bar conviction, and instigation, which does — and because it shows how the failure to present the poseur-buyer, and the failure to explain why the supposed source of the drug was allowed to walk away, can destroy the prosecution's case.

Procedural History

Polizon was charged before the Regional Trial Court of Misamis Oriental, Branch 18. After trial on the merits, the trial court rendered judgment finding him guilty beyond reasonable doubt of selling and delivering marijuana, sentencing him to life imprisonment, imposing a fine of twenty thousand pesos, and ordering the confiscation and forfeiture of the marijuana in favor of the Government. Polizon appealed to the Supreme Court, assigning three errors: that the trial court erred in holding that there was entrapment rather than instigation; that it erred in giving weight and credence to the uncorroborated testimony of the prosecution witness, M/Sgt. Dominador Pascua; and that it erred in convicting him despite the failure of the prosecution to prove his guilt beyond reasonable doubt. The Court reduced these to the single issue of entrapment or instigation, and reversed.

Facts

At about nine thirty in the evening of August 20, 1986, M/Sgt. Dominador Pascua of the Tenth Narcotics Regional Unit, together with S/Sgt. Edgardo Dagoc, a civilian poseur-buyer named Boy Lim, and a driver, went to Justo Ramonal Village in Cagayan de Oro City on a buy-bust operation. The poseur-buyer, a former boxer, met and conversed with the accused on the street while Pascua watched from about four meters away and Dagoc hid behind a parked truck about five meters away. Moments later the accused walked to a parked motorized tricycle where Manuel Laudiana was seated, then returned to Boy Lim and handed him something in a plastic wrapper. The agents closed in, identified themselves, and arrested the accused. The stuff turned out to be dried marijuana flowering tops inside a plastic wrapper, known in police parlance as a tea bag, and the forensic chemist found the specimen, weighing 0.8602 gram, to be positively marijuana.

The defense told a different story. The accused testified that while he was watching a dart game, Pennol Amareli called him from across the street, and as he walked toward Pennol, Boy Lim approached and asked about anyone selling marijuana. The accused pointed to the house of Virgilio Adoran, whose upper floor was occupied by Manuel Laudiana. Boy Lim then asked the accused to buy marijuana for him, saying he was afraid and cautious because of the people nearby. The accused refused but was prodded, and knowing Boy Lim to be a boxer, he agreed. He called Laudiana, who signalled him to come, and there he handed two five-peso bills given earlier by Boy Lim to Laudiana, who handed him a tiny plastic packet of marijuana. He gave it to Boy Lim, who put it in his pocket, then embraced him, told him "You are a pusher," and bodily lifted him to where Sgt. Pascua stood with a revolver pointed at his face.

On appeal, the Court noted that the prosecution presented no evidence that the accused was searched or frisked, or that the money or the marijuana was found in his possession; the prosecution admitted the money could not be found in his pockets. Neither Pascua nor Dagoc went after Laudiana, who was allowed to get away — and with the money. Boy Lim, the poseur-buyer, was never presented.

Issues

• Whether or not there was entrapment or instigation employed by the NARCOM agents on the accused-appellant.
• Whether or not the failure to present the poseur-buyer, Boy Lim, weakened the prosecution's evidence.
• Whether or not the guilt of the accused was proven beyond reasonable doubt.

Applicable Provisions

Section 4, Article II of Republic Act Number 6425, as amended, the provision charged and applied, provides:

Section 4. Sale, Administration, Delivery, Distribution and Transportation of Prohibited Drugs. — The penalty of life imprisonment to death and a fine ranging from twenty thousand to twenty-five thousand pesos 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 shall act as a broker in any of such transactions.

This is the offense of sale of a prohibited drug, and it is the crime for which the accused was convicted below and acquitted on appeal.

Rule 131, Section 5, paragraph e, of the Rules of Court, on the presumption that evidence willfully suppressed would be adverse if produced, is invoked by the Court in its quoted ruling:

Sec. 5. Disputable presumptions. — The following presumptions are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence: x x x (e) That evidence willfully suppressed would be adverse if produced.

This presumption is the reason the non-presentation of the poseur-buyer counted against the prosecution.

Ruling

On the first issue, the Court agreed with the appellant that there was instigation, not entrapment. It restated the dividing line:

In entrapment, the entrapper resorts to ways and means to trap and capture a lawbreaker while executing his criminal plan. On the other hand, in instigation the instigator practically induces the would-be defendant into committing the offense, and himself becomes a co-principal. Entrapment is no bar to prosecution and conviction while in instigation, the defendant would have to be acquitted.

The accused was not looking for a marijuana buyer when Boy Lim asked him to buy the stuff, and he was not in possession of marijuana. The criminal intent originated in the mind of the instigator, Boy Lim, and the accused was lured into the commission of the offense so that he could be prosecuted.

On the second issue, the Court held that the non-presentation of Boy Lim, the alleged poseur-buyer, weakened the prosecution's evidence. Sgt. Pascua was not privy to the conversation between Lim and the accused; he merely watched from a distance and saw only their actions. Since the appellant insisted he was forced by Lim to buy the marijuana, it was essential that Lim be presented to rebut his testimony. The Court quoted its recent ruling that the person who could provide the most accurate account of the transaction is the poseur-buyer, and that when the inculpatory facts are capable of two or more explanations, one consistent with innocence and the other with guilt, the evidence does not fulfill the test of moral certainty and is not sufficient to support a conviction. The failure to present the poseur-buyer gave rise to the presumption that evidence willfully suppressed would be adverse if produced.

On the third issue, the Court held that the guilt of the accused was not proven beyond reasonable doubt. The conviction of an accused must not rest on the weakness of the defense but on the strength of the evidence presented by the prosecution, and that standard was not met.

Doctrine

First, entrapment is no bar to prosecution and conviction, while instigation requires acquittal. In entrapment the lawbreaker is already executing his criminal plan and the entrappers merely trap and capture him; in instigation the instigator practically induces the would-be defendant into committing the offense and himself becomes a co-principal. Second, the poseur-buyer is the best witness to a buy-bust transaction; where the accused's version is a total denial and the accounts diverge, the prosecution must present the poseur-buyer, and its failure to do so raises the presumption under Rule 131, Section 5, paragraph e, that evidence willfully suppressed would be adverse if produced. Third, where the inculpatory facts are capable of two or more explanations, one consistent with innocence and the other with guilt, the evidence does not fulfill the test of moral certainty. Fourth, conviction must rest on the strength of the prosecution's evidence, not on the weakness of the defense.

Disposition

The Supreme Court reversed the decision of the Regional Trial Court of Misamis Oriental, Branch 18, and acquitted the accused-appellant on reasonable doubt.

Remember This

Memorize the line: entrapment is no bar to conviction, but instigation requires acquittal, because in instigation the criminal intent originates in the mind of the instigator. Examiners use this case to test the entrapment-versus-instigation distinction and the effect of the prosecution's failure to present the poseur-buyer in a buy-bust operation.