PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. EFREN ASIO Y MOLINTAS, ACCUSED-APPELLANT.

Efren Asio y Molintas was charged with violation of Sec. 21 (b), in
relation to Sec. 4, Article II of Republic Act No. 6425, as amended, otherwise
known as the Dangerous Drugs Act of 1972.  The Information reads:

“The undersigned accuses EFREN ASIO Y MOLINTAS for VIOLATION OF SEC. 21(b) in relation to SEC. 4 of
ART. II of REPUBLIC ACT No. 6425, AS AMENDED by Batas Pambansa
Bilang 179 (Sale,
Administration, Delivery, Distribution and Transportation of Dangerous Drugs),
committed as follows:

“That on or about the 4th day of December, 1985, in the City
of Baguio, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused, not authorized by law, did
then and there willfully, unlawfully and feloniously attempt to sell, deliver, distribute, dispatch in
transit or transport 3,500 grams of dried marijuana leaves, knowing fully well
that said leaves are marijuana leaves, a prohibited drug, in violation of the
above mentioned provision of law.” (At p. 1, Original Record)

Upon arraignment on January 7, 1986, the accused, assisted by counsel,
pleaded not guilty to the crime charged.

The trial court, however, upon careful evaluation of the
evidences presented, found the accused guilty of the crime charged.  The dispositive
portion of its decision reads:

“WHEREFORE, the accused, Efren Asio y Molintas, is found guilty
beyond reasonable doubt of delivery of marijuana, a prohibited drug, without
authority of law, under Section 4, Article II of Republic Act No. 6425, as amended, and hereby sentences him to suffer
life imprisonment, as well as to pay a fine of Twenty Thousand Pesos (P20,000.00) without subsidiary imprisonment, in case of
insolvency.  He shall be credited with
the preventive imprisonment undergone by him, subject to the conditions
prescribed by Article 29 of the Revised Penal Code, as amended.

“The subject marijuana leaves are confiscated in favor of the
government.” (At pp. 184-185, Original Records)

The People’s summary of the prosecution’s evidence is as follows:

“On December 4, 1985,
at about 3:00 o’clock in the
afternoon, an informant went to the office of the First Narcotics Regional Unit
in Baguio City.  The informant gave information that selling
of marijuana was rampant in Wright Park,
Baguio City
(pp. 4-8, TSN, February 26, 1987)
and that appellant was involved
in said trafficking of marijuana (p. 3, TSN, December 23, 1987).

“Acting on the information given by the informant, Captain
Emmanuel O. Manzano formed a team composed of Sgt.
Alexander Cao, Pat. Maximiano Peralta and A2FC Freddie
Cartel.  They were instructed to
conduct a ‘buy-bust operation’ against appellant.  Cartel was designated to pose as buyer.  Sgt. Cao
and Pat. Peralta would serve as the back-up of the team (pp. 8-9, TSN, February 26, 1987; p. 4, TSN, December 23, 1987).

“After the team was formed and the members were assigned their
specific functions, they went to Wright
Park.  They reached Wright
Park at about 3:30 o’clock in the afternoon (p. 4, TSN, September 23,
1987).  They saw appellant conversing
with somebody in front of a little store in Wright
Park.  Cartel and the informant approached appellant
while Sgt. Cao and Pat. Peralta stayed about 15
meters away.  While Cartel and appellant
were conversing, Sgt. Cao and Pat. Peralta then moved
closer until they were only about 4 to 5 meters away from Cartel and appellant
(pp. 4-6, TSN, ibid).

“After about 10 minutes of conversation, appellant left, going
towards the north (p. 6, TSN, ibid).

“At about 4:30 o’clock
in the same afternoon, appellant returned
to Cartel.  He was carrying with him two
small sacks.  Upon
appellant’s arrival, Sgt. Cao and Pat. Peralta
rushed to where Cartel and appellant were. 
They identified themselves as
NARCOM agents, confiscated the two bags and arrested appellant (pp. 9-12, TSN, ibid).  They brought appellant to the police station
where he was investigated.  Appellant was
charged the following day (p. 13, TSN ibid).

“The two bags were endorsed to Sgt. Bugtong,
the Chief of the Narcotics Division of the Baguio
City Police Station, who, in turn, sent the same to the PC INP Crime Laboratory Service at Camp Dangwa, La Trinidad, Benguet
(p. 14-15, TSN ibid).

“The forensic chemist Carlos V. Figueroa found that the 2 bags
contained ‘marijuana’ flowering tops’ (p. 5, TSN, November 7, 1986).” (At
pp. 3-6, Brief for the Appellee, Rollo,
p. 85)

The accused-appellant now raises before us the following
assignments of errors:

I

“THE TRIAL COURT ERRED IN HOLDING THAT
THE SCHEME EMPLOYED BY THE NARCOM AGENTS WAS MERELY AN ENTRAPMENT OPERATION AND
NOT ONE WHICH INDUCED THE ACCUSED TO A COMMISSION OF AN OFFENSE, THE LATTER
BEING AN ABSOLUTORY CIRCUMSTANCE;

II

“THE TRIAL COURT ERRED IN CONVICTING
THE ACCUSED ON THE BASIS OF EVIDENCE OBTAINED IN VIOLATION OF SECTION 2,
ARTICLE III OF THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES;

III

“THE TRIAL COURT ERRED IN CONVICTING
THE ACCUSED OF AN OFFENSE DIFFERENT FROM THAT CHARGED IN THE INFORMATION AND
DESPITE THE PRESENCE OF CIRCUMSTANCES WHICH GIVE RISE TO REASONABLE DOUBT AS TO
HIS GUILT.” (At pp. 43-44, Rollo)

Appellant’s contention that the scheme used by the NARCOM agents
was instigation and not entrapment is without merit.  This is a bare allegation not borne by
evidence on the part of the accused.

As seen from the facts, the operation conducted by the police
officers was clearly one of entrapment. 
The case of People v. Valmores, 122 SCRA 922
[1983] clearly elucidates the difference between entrapment and
instigation.  “In an entrapment,
ways and means are resorted to for the purpose of trapping and capturing the law breakers in the execution of their
criminal plan; whereas in instigation, the instigator practically induces the
would-be defendant into the commission of the offense and he himself becomes a
co-principal.” There is no such inducement in the case before us.  In the first place, the police officers did
not know the petitioner beforehand. 
There is no reason for the NARCOM agents to induce appellant to violate
the law.  There is nothing in the records
which could explain why the prosecution witnesses would fabricate their
testimonies and implicate appellant in such a serious crime (People v. Rodante Bautista, 147 SCRA 500 [1987]).  The principal prosecution witnesses are all
law enforcers, and are therefore, presumed to have regularly performed their duty
in the absence of proof to the contrary (People v. Neil Tejada,
G.R. No. 81520, February 21, 1989; People v. Carlito
de Jesus, 145 SCRA 521 [1986]; People v. Alvarez, G.R. No. 70446, January 31,
1989).

On the contrary, what is evident from the records is the criminal
resolve of the accused even before the NARCOM agents met him.  It was precisely on the basis of a report
that there was rampant drug trafficking at Wright
Park that the buy-bust operation
was conducted.  The accused was already
pushing marijuana.  The agents simply
waited for appellant to ply his trade and then trapped him.

The existence beforehand of such unlawful trade is evident from
the fact that the accused-appellant had a ready supply of marijuana to meet the
buyers’ demands.  He might not have had
it right at the time the initial transaction took place but he was readily able
to produce the desired quantity.  In
fact, it took him only a few minutes to produce the marijuana.  If it were really true that he was induced
into looking for marijuana, it would have taken him a considerable length of
time to look for a source.  The fact that he returned shortly after the transaction shows that
he already had contacts from whom he could readily get the marijuana.

This is clearly not a case where an innocent person is induced to
commit a crime.  This is simply a trap to
catch the criminal.

The accused-appellant further questions the non?presentation
of the informant.  This allegation is of
no moment since it is up to the Fiscal to present his witnesses.  The absence of the informant as witness is
not fatal (People v. Cerelegia, 147 SCRA 538
[1987]).  Moreover, there is a need to
protect the identity of informers to enable them to help in the identification
of drug traffickers.

The non-presentation of the poseur-buyer, Cartel, was likewise
assailed by the defense.  This was,
however, satisfactorily explained by the prosecution.  Cartel’s whereabouts are unknown because he was
already discharged from the service.  But
even in the absence of the testimony of said poseur-buyer, the evidence against
the accused remains strong.  Sgt. Cao and Pat. Peralta’s
testimonies corroborate each other regarding the delivery of marijuana by Asio to Cartel.

The second issue raised by the accused is the absence of a warrant
of arrest or search warrant when the two (2) bags were seized from him and he
was arrested.

The rule that a search and seizure must be supported by a valid
warrant is not an absolute one.  There
are recognized exceptions to the rule among them, 1) a search incidental to an
arrest; 2) a search of a moving vehicle; and 3) the seizure of evidence in
plain view (Mariposa, Jr. v. Sandiganbayan, 143 SCRA
267).  Par. a, Sec. 6, Rule 113 of the Rules of Court specifically states:

“A peace officer or a private person may, without a warrant
arrest a person:

“a) when the person to be arrested has committed, is actually
committing, or is about to commit an offense in his presence x x x.”

A search and seizure without a warrant is allowed in buy-bust
operations, the circumstances being among those which can be considered
exceptional.

The accused, in this
case, was caught red-handed while pushing marijuana.  Hence, he could be lawfully arrested and
searched.

Lastly, the accused-appellant alleges that he was convicted of an
offense different from that charged in the information.  According to him, he was charged under Sec. 21(b) in relation to Sec. 4 of Art. II of the Dangerous
Drugs Act, which states:

“Sec. 21.  Attempt and Conspiracy –
The same penalty prescribed by this Act for the commission of the offense shall
be imposed in the case of any attempt or conspiracy to commit the same in the
following cases:

x x
x              x
x x                 x x x

“b) Sale,
administration, delivery, distribution and transportation of dangerous
drugs;”

His conviction was, according to him, based on a different
provision.  That is Sec. 4 of the same Article which provides:

“The penalty of life imprisonment to death and a fine ranging
from twenty thousand to thirty 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.  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 a victim thereof, the
maximum penalty herein provided shall be imposed.  (As amended by PD No. 1675, February 17,
1980)”

There is nothing inconsistent about the two provisions, they
referring to one and the same offense and carrying with it the same
penalty.  Sec. 21(b) of RA 6425 merely
specified the manner of violation of the prohibited acts mentioned in Section 4
of the same Article.

The accused-appellant further argues that the Information does
not charge only one offense.  The
contention is without basis.  There is
only one offense charged – the
violation of Sec. 4 of RA 6425.  The
words “sell, deliver, distribute, dispatch in transit or transport merely
describe the specific acts constituting the violation of Section 4.  Moreover, the alleged defect has become
academic at this point.  It should have
been properly raised in a motion to quash before the appellant pleaded
to the Information.  Failure to do so is deemed a waiver in
accordance with Section 8, Rule 117 of the 1985 Rule on Criminal Procedure.

There is one other important reason why this appeal should be
dismissed.  After the records of this
case were transmitted from the Court of Appeals on July 26, 1988
where they were erroneously forwarded, the accused-appellant escaped from
detention.  His own lawyer says he could not contact the appellant.

On that basis alone, the appeal may be dismissed.

WHEREFORE, premises considered, the decision of the trial
court is AFFIRMED in toto.

SO ORDERED.

Fernan, C.J., (Chairman), Feliciano, Bidin, and Cortes, JJ., concur.