PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. RUDY DEKINGCO, ACCUSED-APPELLANT.

In an information dated September 30, 1988 and filed with the
Regional Trial Court, Branch 3, at Kalibo, Aklan, accused-appellant was charged with violation of
Section 4  (Sale of Prohibited Drugs) and
Section 8 (Possession of Prohibited Drugs) of Republic Act No. 6425, as
amended, otherwise known as “The Dangerous Drugs Act of 1972,”
allegedly committed during the period from September 20, 1988 to September 25,
1988 at Poblacion, Kalibo, Aklan.^[1]

At his arraignment on October
13, 1988, appellant, through counsel, offered to plead guilty to a
violation of the aforesaid
Section 8 of the law, but the
said offer was not accepted by the prosecution hence appellant entered a plea
of not guilty.^[2]
The prosecution presented as its
witnesses Barangay Captain Allen Alcedo,
Sgt. Dionisio Magwale,
Forensic Chemist P/Lt. Zenaida Sinfuego
and T/Sgt. Rizaldo Labitan,
Jr. The defense consists of the testimonies of appellant himself and his
cousin, Alejandro Aquino, and are limited to denials
of the charges.

The evidentiary facts, upon which the judgment of the trial court
are based, show;

“That on September 20, 1988, because
of a previous tip, NARCOM agent Dionisio Magwale, accompanied by Rizaldo Labitan and a certain Valeria, in civilian clothes and
pretending to be ordinary persons, conducted a `test-buy’ operation, and was
able to buy five (5) sticks of marijuana cigarettes
(Exhibits `A-1′ to `A-5′) at the price of P5.00 per stick or a total of P25.00,
from the accused Rudy Dekingco in his store.  Assured now that Rudy Dekingco
was selling prohibited drugs, the NARCOM agents applied for, and were granted a
search warrant by Kalibo Municipal Trial Judge
Francisco Ureta (Exh. `B’).

“It was further established that when the NARCOM agents
conducted a raid in the house of Rudy Dekingco at
about 5:00 o’clock early morning of September 25, 1988, armed with the search
warrant, they were able to confiscate twenty-eight sticks of marijuana
cigarettes (Exhibit `C’), a weighing scale (Exhibit `G’) used for weighing
cocaine, and P34.00 placed inside a plastic bag (Exhibit `H’).  The raid was conducted in the presence of the
Municipal Mayor of Kalibo, Aklan,
Mayor Allen S. Quimpo, the Barangay
Captain of Poblacion Kalibo,
Allen Alcedo, who is also a radio announcer, several
policemen and army soldiers.

“The five sticks of marijuana cigarettes, and the other twenty-eight
sticks, were all sent to the Crime Laboratory Service in Iloilo
City for chemistry examination, and
were found to be positive for marijuana (Exhibit `E’).”^[3]

After trial, judgment^[4]
was rendered finding appellant
guilty beyond reasonable doubt of selling marijuana and sentencing him to reclusion
perpetua with all the accessory penalties
provided by law and to pay the costs.^[5]

In the present appeal, appellant faults the court a quo
with the following errors:

1. The trial court made a grave and serious error in finding the
accused-appellant guilty beyond reasonable doubt of the crime of violation of
Section 4, Article II, of the Dangerous Drugs Act of 1972 (Republic Act 6425).

2. The trial court erred in holding that the twenty-eight (28)
sticks of cigarettes allegedly taken from the house of the accused are
marijuana leaves.

3. There is no showing that the marijuana leaves allegedly taken
from the house of the accused belongs to him.^[6]

According to appellant, it is rather disturbing, if not
intriguing, why he was not arrested by Sgt. Dionisio Magwale during the “test-buy” operation when the
latter knew fully well that he was selling marijuana cigarettes.  He claims that said sale was never reported
to the police authorities for entry in the police blotter.  Furthermore, he disputes the report of P/Lt. Zenaida Sinfuego as unreliable,
it having emanated from a person whose expertise on prohibited drugs has
allegedly not been adequately established.

The appeal is devoid of merit.

Appellant was correctly convicted of selling five (5) sticks of
marijuana cigarettes.  In order to
sustain conviction for selling prohibited drugs, the element of sale must be
unequivocally established.^[7]
Also, what the law proscribes is not only the act of selling but also, albeit
not limited to, the act of delivering.^[8]
The commission of the offense of illegal sale of marijuana requires merely the
consummation of the selling transaction. 
What is important is that the poseur-buyer received the marijuana from
the accused.^[9]
Sgt. Dionisio Magwale, who
acted as poseur-buyer during the “test-buy” operation, categorically
asserted that he paid P25.00 to appellant in exchange for five (5) sticks of
marijuana cigarettes.^[10]
This was corroborated by T/Sgt. Rizaldo Labitan, Jr. who also attested to the fact of sale.^[11]
Prior to the “test-buy’ operation, appellant was under close surveillance.^[12]
This operation, conducted by the NARCOM operatives on September 20, 1988,
confirmed the veraciousness of the information earlier gathered by the former
that appellant was engaged in illicit drug activities.

The failure of Sgt. Dionisio Magwale to arrest appellant during the “test-buy”
operation was adequately explained by him. 
He felt the need to secure a search warrant as part of their standard
operating procedure.^[13]
Judge Francisco M. Ureta would not have issued the
search warrant^[14]
had he not been satisfactorily convinced that a probable cause exists therefor.  Moreover,
the NARCOM operatives were not under a specific mission order to conduct a
“buy-bust” operation.  The
“test-buy” operation was intended only to confirm the report
submitted to them by their confidential informant that appellant was engaged in
such an activity.^[15]

Their decision to apply for a search warrant did not turn out to
be fruitless.  The search conducted in
the house of appellant yielded other prohibited drugs and paraphernalia used by
appellant in his illicit trade activity, that is, twenty-eight (28) sticks of
marijuana and a weighing scale used for weighing cocaine.  The evidence thus recovered certainly
bolsters the prosecution’s case as it incontrovertibly shows that appellant had
a ready supply of marijuana for sale and disposition to anyone willing to pay
the price asked for the prohibited material.

The legality of the search was never questioned by appellant, and
in fact he consented to the search when the search warrant was shown to him,^[16]
hence, the aforesaid incriminating evidence may be considered against him.  However, since possession of marijuana is generally inherent in the crime of
selling them and as the conviction for both offenses is not feasible,^[17]
especially under the formulation of the particulars in the indictment filed in
this case, the court below committed no error in convicting appellant only of
selling prohibited drugs.

It is apparent that
the NARCOM operatives had no known motive or reason to falsely impute a serious
and unfounded charge against appellant. 
Their testimonies, therefore, carry the presumption of regularity in the
performance of official functions.^[18]
Nor should the insinuation that said drugs and weighing scale belonged to the
raiding team merit any consideration.  In
fact, appellant himself postulated the possibility that the prohibited drugs
retrieved from his house may have been brought by the other members of his
family and by his visitors.^[19]

Finally, appellant tries to discredit the testimony of P/Lt. Zenaida Sinfuego, the forensic
chemist, on the ground that she lacks the necessary knowledge to qualify as an expert
in the field subject of her testimony. 
This submission is untenable.  The
rule is that an expert must have made the subject upon which he gives his
opinion a matter of particular study, practice, or observation, and he must
have particular and special knowledge on the subject.  However, there is, no exact standard by which
to determine the degree of skill or knowledge which a witness must possess in
order that he may testify as an expert.

We are satisfied that the
unrebutted recital of P/Lt. Sinfuego’s qualifications and duties as a forensic chemist
since 1980, her having conducted professional examination of marijuana leaves
in more than a thousand cases, and her explanation of the procedure followed in
examining the drugs in question resulting in her official conclusion,^[20]
bespeak sufficient expertise on her
part and warrant judicial acceptance of her testimony.

As to the kind of proof necessary to determine whether a certain
substance offered in evidence is a prohibited drug or not, we have held in United States vs. Sy
Liongco^[21]
that a chemical analysis is not an indispensable prerequisite to the
establishment of an allegation of this kind and that “the ability to
recognize these drugs can be acquired without a knowledge to such an extent
that testimony of a witness on the point may be entitled to great weight.  Such technical knowledge is not required, and
the degree of familiarity of a witness with such drugs only affects the weight
and not the competency of his testimony.” In the case at bar, the trial
court has opted to give weight to the testimony of P/Lt. Zenaida
Sinfuego and, in the absence of abuse of such
discretion or grave misapprehension of the facts, we find no cogent reason to
disturb the findings of the trial court in this regard.  Moreover, appellant failed to refute the
expertise of this witness on the matter of her testimony.

The court a quo imposed the penalty of reclusion
perpetua with all the accessory penalties
provided by law and to pay the costs. 
This deviates from the penalty of life imprisonment to death and a fine
ranging from P20.000.00 to P30,000.00 provided by Section 4, Article II of
Republic Act No. 6425, as amended.  The
penalty imposed on appellant should have been indicated as, and it is hereby
declared to be, life imprisonment.  A
fine in the amount of P30,000.00 is also hereby imposed on accused-appellant,
without subsidiary imprisonment.

WHEREFORE, with the foregoing modifications,
the judgment appealed from is hereby AFFIRMED
in all other respects.

SO ORDERED.

Melencio-Herrera, (Chairman), Paras, Padilla, and Sarmiento, JJ., concur.

^[1]
Original Record, 16.

^[2]
Ibid., 29-30.

^[3]
Ibid., 129.

^[4]
Per Judge Sheila Martelino-Cortes.

^[5]
Ibid., 131.

^[6]  Brief for Accused-Appellant, 2.

^[7]
People vs. Ramos, G.R. Nos. 85401-02, June 4, 1990.

^[8]
People vs. De la Cruz, et al., G.R. No. 83260, April 18, 1990.

^[9]
People vs. Fernandez, et al., G.R. No. 80481, June 27, 1990.

^[10]
TSN, December 7, 1988, 6.

^[11]
TSN, January 5, 1989, 4.

^[12]
TSN, December 7, 1988, 3.

^[13]
TSN, December 8, 1988, 7; January 5, 1989, 11.

^[14]
Exhibit B, Folder of Exhibits, Criminal Case No. 2722.

^[15]
TSN, December 7, 1988, 3-4.

^[16]
TSN, December 7, 1988, 11.

^[17]
People vs. Ramos, supra.

^[18]
People vs. Paco, 170 SCRA 681 (1984); People vs.
Estevan, G.R. No. 69676, June 4, 1990; People vs.
Borja, G.R. No. 71838, February 26, 1990.

^[19]
Brief for Accused-Appellant, 6.

^[20]
TSN, December 13, 1988, 2-9.

^[21]
33 Phil. 53 (1915).