PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. EFREN MALAKAS, ACCUSED-APPELLANT.

This is one of those cases prosecuted under the Dangerous Drugs Act
where a buy-bust operation leading to the arrest of the accused does not
withstand the requisite proof beyond reasonable doubt to put the accused
justifiably behind bars.

The version of the prosecution is that on 21 April 1989, at about
11:00 o’clock in the morning, a civilian informer went to the headquarters of
the Narcotics Command (NARCOM), Region IV, stationed in Lucena City, and
reported that a certain Efren Malakas was selling prohibited drugs in Bgy.
Guadalupe, Phase Two, San Pablo City. Immediately, a team composed of 2Lt. Rodolfo Ricomono, T/Sgt. Iluminado
Evangelista, Sgts. Elpidio Anasta, Dominador Cruz and Rico Atienza, and Pfc.
Felipe Maderazo was organized and dispatched to effect the arrest of the
reported drug pusher. Sgt. Anasta, who was
given a marked P50-bill by Lt. Ricomono, was designated as the poseur-buyer who
was to approach the suspected pusher, pretend to buy marijuana from the latter,
then raise his left hand to indicate that the illegal sale had already been
consummated.^[1]

The team left Lucena City about 12:00 noon. At around 3:00 o’clock that afternoon, the
buy-bust team, together with the informant, arrived in Guadalupe, Phase Two,
San Pablo City where a basketball game was in progress. Sgt. Anasta alighted from their service jeep
and proceeded to the small store beside the basketball court where the
confidential informer pointed to the accused who was among the many spectators
of the game while the other agents observed from a distance. Sgt. Anasta then approached the accused
saying: “Pare, mayroon ba tayo
diyan, may kumpromiso ako sa aking barkada?”^[2]
Without uttering a word, the accused left and returned to Sgt. Anasta after two
minutes, and thereupon handed to him a plastic bag containing forty (40) sticks
of marijuana cigarettes with inscription “Super Langka.”^[3]
Sgt. Anasta gave the P50-bill and casually raised his left hand.^[4]
After around two minutes, the NARCOM agents moved in and arrested the accused
who just stood in front of Sgt. Anasta.^[5] The
accused was then brought to the NARCOM Headquarters in Lucena City^[6]
and later back to the San Pablo Police Headquarters.

Lt. Ricomono transmitted the seized marijuana to the Philippine
Constabulary Crime Laboratory in Camp Crame, Quezon City, where the Forensic
Chemist confirmed the specimen to be marijuana.

The accused however totally denies the accusation and points to a
certain Virgilio “JR” Villamin, allegedly a known drug pusher in
their area, as the one who was actually approached by the NARCOM agents. The accused avers that on 21 April 1989 he,
together with basketball teammates Menandro de Silva, Edilberto Salcedo and
others, was in Guadalupe Subdivision for a basketball game scheduled at
4:00’clock that afternoon.^[7] At
around 3:00 o’clock, while watching the game scheduled ahead of theirs, he
noticed Virgilio “JR” Villamin in conversation with two persons
unknown to him (accused). After one of
them handed money to Villamin, the latter left. Immediately thereafter, however, someone shouted: “PC! PC!” This triggered a commotion
causing people around to flee, including the accused.^[8]
However, the two unidentified persons, who later turned out to be NARCOM
agents, got hold of him. As one of them
frisked him, the other tried to give him something wrapped in plastic. The accused then pleaded to the agents to
spare him: “Huwag ninyo akong
subuan, hindi naman ako pusher,” but the agents nevertheless persisted and
dragged him. He was able to extricate
himself and escape but only to trip and fall down after running several meters,
whereupon his pursuers overtook him. He
was beaten up, made to board a tricycle, blind-folded, transferred to a waiting
jeep, and brought to Lucena City.^[9] The
following day, he was brought back to the Police Headquarters in San Pablo
where he was detained.

Accused likewise claims that it was not
Sgt. Anasta who arrested him as he saw the latter only after he was brought to
Lucena City.^[10]
He also asseverates that while he was under detention, Pfc. Maderazo told
him: “Pasensiya ka na, at ikaw ang
nahuli. The PC will not go home without
any apprehension.”^[11]

On 14 December 1989, the court a quo,^[12]
giving more credence and respect to the version of the prosecution, found Efren
Malakas guilty beyond reasonable doubt of violating Sec. 4 of R.A. 6425, as
amended, and “sentenced him to suffer the penalty of reclusion perpetua
(life imprisonment) and to pay a fine of P20,000.00 x x x x”^[13]

In this appeal, the accused maintains that he was never the
subject of any buy-bust operation. In
fact, he asserts that the testimonies of the prosecution witnesses hardly show
that an entrapment ever took place. There was barely any conversation between the poseur-buyer and the
suspected drug pusher, if the version of the prosecution were to be
believed. He also cites the failure of
the poseur-buyer to respond to the prosecutor during the direct examination on
how much was paid for the prohibited drugs and other improbabilities and
inconsistencies which put the credibility of the apprehending officers in
serious doubt.

We agree with the accused. If we were to believe the account of the prosecution, it would seem that
there was no agreement whatsoever as to the sum of money to be paid and the
amount of prohibited drugs to be purchased. The alleged poseur-buyer testified that he merely asked the suspected
drug peddler: “Pare, mayroon ba
tayo diyan, may kumpromiso ako sa aking barkada,” and the accused, without
saying a word, left and returned with forty sticks of marijuana cigarettes, for
which the poseur-buyer paid with a P50-bill. This is highly unlikely. Even
regular buyers and users inform, impliedly or expressly, the drug merchant on
the quantity they are buying so that he will know how much to deliver. Although the actual negotiation need not be
lengthy nor is there a need for haggling on the price, the drug peddler should
be given the slightest hint at least on the quantity and the cost of the drug
being purchased. Thus, in People v.
Uson,^[14]
where the Court acquitted the appellant, we said: “Furthermore, the matter of the monetary consideration for
the drug was never taken up during the meeting x x x x They never discussed
that Casino was to purchase P100.00 worth of ‘shabu’ from appellant, as Casino
would have this Court believe otherwise in his affidavit.” And in People
v. Quetua,^[15]
we ruled: “The evidence for the
prosecution appears confined merely to
buyer-told-seller-of-intention-to-buy-marijuana, and
seller-handed-over-stuff-while-buyer-gave-P10.00-as-payment. But how could appellant, as seller, have
known what quantity to bring when from the testimony he did not even have the
slightest idea of how much marijuana Sgt. Reyno, as buyer, was interested in
purchasing?”

Indeed, the seller has first to be apprised of how much is being
purchased before he could deliver. The
poseur-buyer could do this by expressly disclosing how much he is buying or by
simply giving the marked money for the seller to have a hint of how much worth
the buyer is interested to acquire. A
survey of cases where a buy-bust actually transpired shows that the
poseur-buyer would either first ask, “[t]iene ba quita alli?” (Do you
have anything there?), and the suspected pusher would answer, “[t]iene
acqui valor de P5.00 lang de marijuana” (I have here worth only P5.00 of
marijuana), afterwhich the poseur-buyer would reply, “[s]aca yo se, compra
yo conose” (I will take that, I will buy it);^[16]
or the poseur-buyer would simply hand to the suspected pusher the marked money
and wait;^[17]
or the poseur-buyer would casually approach the suspected pusher and tell the
latter “[t]atlong piso lang, pare,” meaning, in their peculiar lingo,
P300.00 worth of “shabu;”^[18] or
conversations of similar import, the bottom-line being that the suspected
pusher is informed of how much worth of prohibited drugs is being purchased
before he actually delivers the goods.

In the instant case, the prosecution tries to impress upon the
Court that no negotiation whatsoever took place but a mere exchange of goods
and money. The accused merely delivered
the prohibited goods in an amount he thought best the poseur-buyer needed, for
which a P50-bill was automatically paid. This is precisely what prosecution witness Pfc. Maderazo, a member of
the buy-bust team who allegedly observed the consummation of the illicit
transaction, said: “[i]t was Efren
Malakas who handed (at) first; when it was verified by Sgt. Anasta, that was
the time he handed the P50.00, sir.”^[19]

How could the accused have known the quantity of the prohibited
drug Sgt. Anasta was going to buy, and conversely, how could the latter have
known how much worth the accused was going to deliver? In one case^[20]
where we said that “[u]nlike in other buy-bust operations where the
apprehending team is unaware of the exact value of the illegal drug the
suspected pusher would be going to sell and thus has to play it by ear, it
appears here that the entrapment team had already pre-determined the worth of
the goods to be sold by preparing beforehand the precise amount it had to
pay,” this Court acquitted the accused.

Furthermore, Sgt. Anasta’s testimony that it took the
apprehending officers two whole minutes from the time he raised his left
hand, the pre-arranged signal indicating that the transaction has been
consummated, to move in and arrest the accused who was just standing in front
of him,^[21]
is highly unnatural and improbable considering that they were allegedly only
ten (10) meters^[22]
more or less away from where the transaction took place. Actual buy-bust operations are conducted
swiftly and expeditiously, to prevent the escape of the suspect. The dillydallying of the arresting officers
negates the existence of a bona fide buy-bust operation.

Even the testimony of Pfc. Maderazo, one of the two officers
alleged to have first responded to the signal of Sgt. Anasta, is not totally
undoubtful. During his direct
examination, he said that he did not see the actual exchange, but only the
signal given by Sgt. Anasta.^[23] On
cross-examination, however, he asserted that he actually saw the accused first
hand the plastic bag of marijuana after which Sgt. Anasta paid with the
P50-bill.^[24]
This puts into serious doubt whether an actual sale indeed took place.

What is more perplexing is the claim of Sgt. Anasta that he could
not recall how much he paid the accused for the forty (40) sticks of marijuana
cigarettes he had purchased.^[25]
Considering that he is the star witness, having supposedly acted as the
poseur-buyer, it puzzles us no end that in such a short span of time, from 21
April 1989 when the alleged buy-bust operation took place, until he took the
witness stand on 13 July 1989, he had already forgotten the incident which led
to the arrest of the accused. This to
our mind belies the actual occurrence of a buy-bust operation.^[26]

We take exception to the finding and rationale of the trial
court, thus –

The accused further claims that if the military officers arrested
him, it was because Pfc. Maderazo told him that the PC officers would not want
to return to their camp without catching somebody. We refuse to swallow this. We cannot believe that public officers like the military officers in
this case who are sworn to perform their duties in accordance with law would be
so callous and insensitive to the rights of the accused as to accuse him of so
grave an offense on the basis of their fabricated evidence. Let it be remembered that the accused is
not known to the apprehending officers. That was the first time they saw him. There is no reason whatsoever shown to show that they were
motivated by any evil or sinister design in arresting the accused. On the contrary, it can be said that they
were in lawful pursuit of their own duties and the presumption is that they
have discharged their duties faithfully and regularly (underscoring ours).^[27]

A cursory reading of the transcript of stenographic notes reveals
that, contrary to the finding of the trial court, the accused was known to Pfc.
Maderazo, a member of the buy-bust team that arrested the accused. The following dialogue between counsel for
the accused and Pfc. Maderazo is enlightening –

(ATTY. ALCANTARA:)

Q     According to you, you are personally known
to Efren Malakas for quite a long time?

(PFC. MADERAZO:)

A
     Yes, sir.

Q     How long?

A     Two
(2) years before I was assigned at Lucena City, sir.

Q    In
your own knowledge, do you have personal intervention where Efren Malakas has
been charged for possession of prohibited drugs aside from this?

A     I
cannot recall but I used to see him in the capitol building, sir, in some cases
filed against him but not marijuana, sir.^[28]

From the foregoing, it is quite obvious that the premise of the
trial court that the accused was not known to the apprehending officers is
erroneous. In fact, from the testimony
of Pfc. Maderazo it can be inferred that he even knew that the accused had a
criminal record. For, indeed, the
accused has a criminal record^[29]
which, contrary to the view of the prosecution, does not signify anything, much
less imply habituality in committing crimes. It does not necessarily mean that because the accused was previously
convicted of various offenses, he should likewise answer for the present
charge. This is a fallacy; it is
non-sequitur.

Consequently, oftentimes it is said that the defense of the
accused assumes importance when faced with the uncertainties and
inconsistencies in the prosecution’s evidence.^[30] The
defense then of the accused that he was arrested after the real pusher slipped
away merits serious consideration. Indeed, he was a convenient fall guy the NARCOM agents could easily
frame-up due to his previous criminal cases. For even if we consider the defense to be weak, the prosecution is even
weaker as its evidence is laden with inconsistencies and improbabilities. Accordingly, we cannot presume that official
duty was regularly performed by the apprehending officers, for it cannot by
itself prevail over the constitutional presumption of innocence accorded the
accused.^[31]

However, the argument of the accused that it would be highly
improbable for him to sell marijuana to a complete stranger whom he has just
met for the first time, and with so many people around, must be rejected. In People v. Roldan,^[32]
we said that it does not appear far-fetched at all that marijuana and other
drugs would be brought and sold by spectators at a municipal or barangay
basketball court. In that case, we
cited People v. Paco^[33]
where we said –

“Drug pushing when done on a small level as in this case
belongs to that class of crimes that may be committed at any time and at any
place. After the offer to buy is accepted
and the exchange is made, the illegal transaction is completed in a few
minutes. The fact that the parties
are in a public place and in the presence of other people may not always
discourage them from pursuing their illegal trade as these factors may even
serve to camouflage the same. Hence, the Court has sustained the conviction of drug pushers caught
selling illegal drugs in a billiard hall (People v. Rubio, G.R. No. 66875, June
19, 1986, 142 SCRA 329; People v. Sarmiento, G.R. No. 72141, January 12 1987,
147 SCRA 252), in front of a store (People v. Khan, supra), along a street at
1:45 p.m. (People v. Toledo, G.R. No. 67609, November 22, 1985, 140 SCRA 259)
and in front of a house (People v. Policarpio, G.R. No. 69844, February 23,
1988) (underscoring supplied).”

Likewise, the contention of the accused that the failure to put
the confidential informer on the witness stand is fatal, must fail. What can be fatal is the non?presentation
of the poseur-buyer if there is no other eyewitness to the illicit transaction,^[34]
not the non?presentation of the informant whose testimony under certain
circumstances would be merely corroborative or cumulative.^[35]

And, inasmuch as the
prosecution has miserably failed to prove that a buy-bust operation which led
to the arrest of the accused actually occurred, the Court deems it unnecessary
to resolve the issue of whether the marijuana leaves examined by the Forensic
Chemist were the ones bought and seized from the accused.

Finally, it should be emphasized, perhaps to the point of
triteness, that life imprisonment is not synonymous with reclusion perpetua.^[36]
The penalty prescribed by the Dangerous Drugs Act, as amended, for the offense
charged is life imprisonment, not reclusion perpetua as the trial court
put it. Thus, Administrative Circular
No. 6-A-92 issued 21 June 1993, amending Administrative Circular No. 6­-92
dated 8 October 1992, ordains that –

“For the guidance of all concerned, the admonition by the
Court on the subject in People v. Penillos, January 30, 1992 (205 SCRA
546), is reproduced hereunder:

‘As noted from the dispositive portion of the challenged decision,
the trial court imposed the penalty of reclusion perpetua or life
imprisonment. Evidently, it
considered the latter as the English translation of the former, which is not
the case. Both are different and
distinct penalties. In the recent case
of People v. Baguio, (April 30, 1991, 196 SCRA 459), this Court held:

‘The Code (Revised Penal Code) does not prescribe the penalty of
life imprisonment for any of the felonies therein defined, that penalty being
invariably imposed for serious offenses penalized not by the Revised Penal Code
but by special law. Reclusion
perpetua entails imprisonment for at least thirty (30) years after which
the convict becomes eligible for pardon. It also carries with it accessory penalties, namely: perpetual special disqualification,
etc. It is not the same as ‘life
imprisonment’ which, for one thing, does not carry with it any accessory
penalty, and for another, does not appear to have any definite extent or
duration.’

‘As early as 1948, in People vs. Mobe,^[37]
reiterated in PP vs. Pilones^[38] and
in the concurring opinion of Justice Ramon Aquino in People vs. Sumadic,^[39]
this Court already made it clear that reclusion perpetua is not
the same as imprisonment for life or life imprisonment. Every judge should take note of the
distinction and this Court expects that, henceforth, no trial judge should
mistake one for the other. (Italics
supplied).

“Strict compliance with this Administrative Circular is hereby
enjoined.”

WHEREFORE, the decision appealed from is REVERSED
and SET ASIDE. Accused EFREN
MALAKAS y RAFER is ACQUITTED of the crime charged, the prosecution
failing to demonstrate his guilt beyond reasonable doubt.

SO ORDERED.

Cruz, (Chairman), Davide, Jr., and
Quiason, JJ., concur.

^[1]
TSN, 13 July 1989, pp. 4-5, 12.

^[2]
Id., pp. 5-7, 17-20.

^[3]
Id., pp. 7-8, 25-26.

^[4]
Id., p. 28.

^[5]
Id., pp. 29-31.

^[6]
Id., pp. 10, 37.

^[7]
Id., 20 October 1989, pp. 2-3.

^[8]
Id., p. 4.

^[9]
Id., pp. 5-7.

^[10]
Id.

^[11]
Id., p. 23.

^[12]
Judge Bienvenido V. Reyes, presiding.

^[13]
Decision of the court a quo, p. 7.

^[14]
G.R. No. 101313, 5 July 1993.

^[15]
G.R. No. 87667, 21 May 1993.

^[16]
People v. Alejandro, G.R. No. 94644, 17 August 1993.

^[17]
People v. Mortos, G.R. No. 103632, 1 September 1993.

^[18]
People v. Salamat, G.R. No. 103295, 20 August 1993.

^[19]
TSN, 25 July 1989, p. 27.

^[20]
People v. Ambih, G.R. No. 101006, 3 September 1993.

^[21]
TSN, 25 July 1989, pp. 28-30.

^[22]
Id., p. 10; 3 August 1989, p. 4; 26 September 1989, p. 19.

^[23]
Id., 25 July 1989, p. 12-13.

^[24]
Id., pp. 23-27.

^[25]
Id., 13 July 1989, p. 7.

^[26]
People v. Martos, G.R. No. 91847, 24 July 1992, 211 SCRA 805.

^[27]
Decision of the trial court, p. 5.

^[28]
TSN, 25 July 1989, pp. 38-39.

^[29]
The information recites that the accused has been previously convicted in Crim.
Case No. 17782 for simple theft, in Crim. Case No. 17599 for vagrancy, in Crim.
Case No. 18553 for evasion of service of sentence, and in Crim. Case No. 18554
for theft.

^[30]
People v. Viray, G.R. Nos. 87184-85, 3 October 1991, 202 SCRA 320, citing
People v. Padilla, G.R. No. 72709, 31 August 1989, 177 SCRA 129.

^[31]
People v. Martos, supra; Note 26.

^[32]
G.R. No. 98398, 6 July 1993.

^[33]
G.R. No. 76893, 27 February 1989, 170 SCRA 681.

^[34]
People v. Polizon, G.R. No. 84917, 18 September 1992, 214 SCRA 56.

^[35]
People v. Li Wai Cheung, G.R. Nos. 90440-42, 13 October 1992; People v.
Mendoza, G.R. No. 92387, 18 December 1992, 216 SCRA 715.

^[36]
People v. Marcelino, G.R. No. 85247, 30 July 1993; People v. Garcia,
G.R. No. 92269, 30 July 1993, and the litany of cases cited therein; People v.
Salamat, G.R. No. 103295, 20 August 1993, to name a few cases.

^[37]
81 Phil. 58.

^[38]
Nos. L-32754-5, 21 July 1978, 84 SCRA 167.

^[39]
No. L-38163, 27 April 1982, 113 SCRA 689.