PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ROMEO CUACHON Y SOLER, ACCUSED-APPELLANT.

Accused-appellant ROMEO CUACHON Y SOLER was charged in Crim. Case
No. 1118, together with Ezra King, Alberto Maniego, Jaime Sylvestre, Danilo
Mumar, Carlos Garcia and Michael McMurray, with having violated Sec. 27, Art.
IV, of R.A. 6425 (The Dangerous
Drugs Act of 1972), as amended, before the Regional Trial Court of
Makati. The Information alleged that on
20 November 1988, the accused, in conspiracy with one another, willfully,
unlawfully and feloniously smoked and sniffed methylamphetamine hydrochloride
(commonly known as shabu), a regulated drug.^[1]

In Crim. Case No. 1119, accused-appellant and Ezra King were
charged with violating Sec. 15, Art. III, of the same law. The Information alleged that on the same date and place the
accused, in conspiracy with one another, willfully, unlawfully and feloniously
sold, gave away, distributed and delivered to another methylamphetamine
hydrochloride without the corresponding license.^[2]

Upon the filing of the two (2) Informations, the trial court
issued warrants for the arrest of all the accused, but only accused-appellant
was arrested; thus he alone stood trial in both cases.

At the arraignment on 20 October 1989, accused-appellant pleaded
not guilty to both charges. Thereafter,
a joint trial was held. On 16 August
1991, the trial court adjudged him guilty as charged. In Crim. Case No. 1118 he was imposed a prison term of twelve
(12) years and ordered to pay a fine of P12,000.00, while in Crim. Case No.
1119 he was sentenced to life imprisonment and fined P30,000.00.^[3]

Accused-appellant now pleads for reversal of his conviction.

The antecedents: On 20 November 1988, at about three
o’clock in the afternoon, a confidential informant reported to the headquarters
of the Southern Police District that there was rampant selling of shabu in the residence of accused-appellant located at 7301 J. Victor
Street, Barangay Pio del Pilar,
Makati. Forthwith, a team of
police officers was formed to conduct a buy-bust operation against
accused-appellant. Designated as leader
of the team was Pfc. Norman Reyes, with Pfc. Jeofrey Bacani, Pat. Eduardo Ugaddan,
Pat. Roy Cantilang, Pfc. Elpidio Lajom and Pat. Esmeraldo de Felipe as
members. During the planning stage of
this operation, Pfc. Reyes assigned Pat. Ugaddan to act as poseur-buyer. Pfc. Reyes gave Pat. Ugaddan two (2) P100.00-bills to be utilized as
buy-bust money, which the former had photocopied earlier, and instructed the
latter and the informant to go to the residence of accused-appellant to carry
out the operation. Pfc. Reyes and his
team would serve as backup for Pat. Ugaddan and the informant. Pfc. Reyes instructed Pat. Ugaddan that in
the event he would be able to buy shabu
from accused-appellant, he (Pat. Ugaddan) should join them where
they were positioned and report on their mission.

After the briefing, Pfc. Reyes and his team proceeded to J. Victor Street. As planned, Pat. Ugaddan and the informant
proceeded to the residence of their quarry while Pfc. Reyes and the other
members of the team posted themselves in strategic places. After a few minutes, Pat. Ugaddan, together
with the informant, reported to Pfc. Reyes that he had succeeded in buying shabu from appellant worth P150.00
at the same time presenting the merchandise to Pfc. Reyes. After determining that it was shabu, Pfc. Reyes and his men
immediately proceeded to the residence of appellant. Pfc. Reyes and his men entered the house of appellant which was
open and went up to the second floor. In one of the rooms, they found several men seated around a table,
engaged in pot session. One of those in
the room was appellant although he was not smoking/sniffing shabu or marijuana. Pfc. Reyes saw burnt marijuana leaves and shabu in aluminum foil, and three
(3) tin foil wrappers containing shabu,
among other things. The
paraphernalia he saw consisted of a still lighted improvised lamp or burner,
sniffing tube or tooter, improvised water pipe, disposable lighter, improvised
cutter, and needle with handle. Pat.
Ugaddan pointed accused-appellant and Ezra King to Pfc. Reyes as the persons
who earlier sold shabu to
him. Thereupon, Pfc. Reyes frisked
accused-appellant and found in his person the two (2) P100.00-bills he gave to
Pat. Ugaddan as buy-bust money and a quantity of shabu contained in a plastic bag.

For the purpose of conducting the appropriate investigation, Pfc.
Reyes and his men brought accused-appellant and his companions to the
headquarters together with the confiscated items. Pfc. Reyes then prepared a receipt of the property seized and
gave it to accused-appellant for his signature. Accused?appellant signed it but only after personally
canceling out the items designated in said receipt as items “C”^[4]
and “D”^[5]
because according to him, those were not taken from him nor from his
residence. Thereafter, Pfc. Reyes and
his men executed a joint affidavit of arrest and prepared a letter to the NBI
requesting for laboratory examination of the confiscated items. He ordered Pfc. Bacani to hand-carry the
same and the evidence mentioned therein to the NBI, which the latter did.

On 21 November 1988, Forensic Chemist Ma. Carina Javier issued a
certification stating that she had found a
number of the evidence positive for marijuana.^[6] On 23 November 1988, she issued
another certification stating that she had found the remaining evidence positive for methylamphetamine hydrochloride (shabu).^[7]

Pat. Ugaddan confirmed the testimony of Pfc. Reyes with regard to
his participation in the buy-bust operation which their team conducted on 20
November 1988. However, on the witness
stand, he was unable to identify the buy-bust money and the shabu which he purchased from
accused-appellant because of the length of time, according to him, that had
elapsed.

Accused-appellant presented a different version of the incident
which transpired on 20 November 1988. According to him, between eight and eight-thirty in the evening, he was
in one of the rooms of his apartment having dinner with his family. In the other room were his friends Ezra
King, Alberto Maniego, Jaime Sylvestre, Danilo Mumar, Carlos Garcia and Michael
McMurray, who were drinking beer. All
of a sudden, he heard a commotion outside his apartment. When he looked out, he saw several men
chasing a man who was then running towards the side of his apartment. Then he resumed eating. After a while, he heard footsteps going up
the stairs of his apartment. When he
went out of his room to find out what it was all about, he saw in the other
room about ten (10) men, including his friends. The other men, who introduced themselves as police officers, were looking for a certain
“Elcid.” When they failed to locate “Elcid,” they started
to search the place. He protested but
the policemen ignored him. Over his
protestations, the policemen brought him and his companions to the police
headquarters. The policemen also took
the P1,000.00 of his wife.

The accused denied the testimonies of Pfc. Reyes and Pat. Ugaddan
that he sold shabu to the latter. He also denied the testimony of Pfc. Reyes that he (Pfc. Reyes) found in
his person two (2) P100.00-bills and a quantity of shabu contained in a
plastic bag. He admitted that he signed
the receipt of property seized but did not read its contents because the police
officers poked guns at him and threatened that something would happen to him if
he refused to do so.

The errors assigned in this appeal refer mainly to the
credibility of the prosecution witnesses and the circumstances surrounding the
illegal arrest of accused-appellant and the warrantless search of his house.

The appellant alleges that while Pfc. Reyes claims to have
confiscated a plastic bag containing shabu
from him, this was never corroborated by any witness. Neither was the claim of Pat. Ugaddan that
he bought shabu from him
and Ezra King worth P150.00 corroborated by any other witness. There was no testimony about the P50.00
change. Pat. Ugaddan was even unable to
identify on the witness stand the buy-bust money and the shabu. The policemen admitted
having no warrant of arrest or search warrant when they arrested
accused-appellant and searched his room. No lawyer assisted him during the custodial investigation, especially
when he was made to sign the receipt of property seized.

We affirm the conviction of accused-appellant.

Section 27, Art. IV, of R.A. 6425 for violation of which
accused-appellant and six (6) others stand charged in Crim. Case No. 1118,
provides:

Sec. 27. Criminal
Liability of Possessor or User of Dangerous Drugs During Social Gatherings. – The maximum of the penalties provided for
in Section 8, Article II and Section 16, Article III of this Act shall be
imposed upon any person found possessing or using any dangerous drug during a
party or at a social gathering or in a group of at least five persons
possessing or using such drugs.

Pfc. Reyes testified that accused-appellant was seated among six
(6) male persons who were engaged in a pot session inside the room.^[8]
However, his testimony is contradicted by Pat. Ugaddan who testified that
accused-appellant was not a participant in the pot session
because he was in the adjoining room.^[9] We
therefore disagree with the finding of the trial court that:

x x x x Pfc. Norman Reyes and Pat. Eduardo Ugaddan had
categorically testified that x x x at the time he (accused-appellant) was found
in possession (of methylamphetamine hydrochloride) he was seated with his six
co-accused around a table, inside one of the rooms of his apartment, with his
said companions smoking/sniffing marijuana/methylamphetamine hydrochloride.^[10]

Nevertheless, the inconsistency does not
absolutely free accused-appellant from criminal liability. We consider the other explicit testimonies
of Pfc. Reyes and Pat. Ugaddan that accused-appellant was found in possession
of a quantity of methylamphetamine hydrochloride,^[11]
in which case he is guilty of violating Sec. 16, Art. III, of R.A. 6425 which
provides:

Sec. 16. Possession or Use of Regulated Drugs. – The
penalty of imprisonment ranging from six years and one day to twelve years and
a fine ranging from six thousand to twelve thousand pesos shall be imposed upon
any person who shall possess or use any regulated drug without the
corresponding license or prescription.

Section 16 of R.A. 7659 (An Act to Impose the Death Penalty on
Certain Heinous Crimes, Amending for that Purpose the Revised Penal Code, as
Amended, other Special Penal Laws, and for other Purposes), which took effect on 31 December 1993,
amended the aforementioned provision which now reads:

Sec. 16. Possession or Use of Regulated Drugs. – The
penalty of reclusion perpetua to death and a fine ranging
from five hundred thousand pesos to ten million pesos shall be imposed
upon any person who shall possess or use any regulated drug without the
corresponding license or prescription, subject to the provisions of Section
20 hereof (underscoring on amendments supplied).

On the other hand, Sec. 15, Art. III, of R.A. 6425 for violation
of which accused-appellant and Ezra King were charged in Crim. Case No. 1119
provides:

Sec. 15. Sale,
Administration, Dispensation, Delivery, Transportation and Distribution of
Regulated Drugs. – 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, dispense, deliver, transport or distribute any regulated drug. x x x x

Section 14 of R.A.
7659 likewise amended the aforementioned provision making the penalty equally
severe as that for possession or use of regulated drugs. Section 15 now reads:

Sec. 15. Sale,
Administration, Dispensation, Delivery, Transportation and Distribution of
Regulated Drugs. – The penalty of reclusion
perpetua to death and a fine ranging from five hundred thousand pesos to
ten million pesos shall be imposed upon by any person who, unless
authorized by law, shall sell, dispense, deliver, transport or distribute any
regulated drug x x x (underscoring
on amendments supplied).

Relying on the straightforward testimonies of Pfc. Reyes and Pat. Ugaddan that the latter
purchased from appellant a quantity of shabu
which he subsequently gave to the former and the object of the sale
having been certified as such by the Forensic Chemist, appellant is likewise
guilty of having violated the aforementioned provision. The prosecution witnesses may have failed to
mention the P50.00 change but that by itself does not diminish their
credibility because what is relevant is that the sale has been established with
certainty.

The determination of the credibility of the law enforcement
agents who conducted the buy-bust operation is addressed to the sound
discretion of the trial court. This
case presents no reason to disturb the rule that the findings of the trial
court on the issue of credibility of the witnesses’ testimonies are accorded
great weight and respect on appeal because the trial judge had firsthand opportunity
to examine and observe the conduct and demeanor of the witnesses when they gave
their testimonies.^[12] He
was placed in a more competent position to discriminate between the true and
the false.^[13]
Thus, we adopt the finding of the trial court that the prosecution’s witnesses
are credible –

It is established in our jurisprudence that in case of divergence
in the testimonies of the prosecution witnesses and of the defense witnesses,
the Court should accord greater weight to the testimonies of the former (People v. Patog, 144 SCRA 129)
Obviously, this rule finds application in this case. For here, the Court is confronted with the conflicting
testimonies of Pfc. Reyes and Pat. Ugaddan, on one hand, and the testimony of
the accused, on the other x x x x

The court looked far and wide into the records of these cases, but
found nothing that would place in discredit the testimonies of Pfc. Reyes and
Pat. Ugaddan. On the other hand x x x x there are reasons for the Court
not to accept as gospel truth the testimony of accused Romeo Cuachon. It is
thus inevitable for the Court to rely on the testimonies of the
prosecution witnesses, and conclude that accused Romeo Cuachon is guilty of the
offenses charged in the informations.^[14]

Although accused-appellant attempts to discredit the testimonies
of the peace officers by claiming lack of corroboration, he has not shown any
improper motive why they testified in the manner that they did. The presumption of regularity in the
performance of official duties has not been overthrown.^[15]
Besides, the testimony of a lone prosecution witness will suffice if positive
and sufficiently shows that the accused committed the offense charged, as in
this case.^[16]

Admittedly, Pat. Ugaddan failed to identify on the witness stand
the dangerous drug sold and the two (2) P100-bills. Nevertheless, such failure is insignificant because those items
were identified in court by Pfc. Reyes who was competent to do so. The records show that after buying shabu from
accused-appellant, Pat. Ugaddan immediately gave it to Pfc. Reyes^[17]
who was only a block away^[18] from
the locus criminis. It
was the same shabu which was sent by Pfc. Reyes to the NBI for
laboratory examination. As regards the
buy-bust money, Pfc. Reyes personally recovered it from accused-­appellant.^[19]
Moreover, accused-appellant’s argument only concerns failure to identify
the buy-bust money. In several cases
involving failure to present the buy-bust money, this Court held that
the presentation in evidence of the buy-bust money is not indispensable for the
conviction of an accused provided that the sale is adequately proved by the
prosecution.^[20]
Otherwise stated, the absence of marked money does not create a hiatus in the
evidence for the prosecution so long as the dangerous drug given or delivered
by the accused was presented before the court and the accused was clearly
identified as the offender.^[21]

As for the absence of warrant of arrest and search warrant at the
time the accused-appellant was arrested, Sec. 5, Rule 113, of the Rules on
Criminal Procedure enumerates the instances when arrest without warrant is
considered lawful –

Sec. 5. Arrest without
warrant; when lawful. – A peace
officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be
arrested has committed, is actually committing, or is attempting to commit an
offense; (b) When an offense has in fact just been committed, and he has
personal knowledge of facts indicating that the person to be arrested has
committed it x x x x

On the basis of the foregoing provisions, the policemen were not
only authorized but also under the obligation to apprehend accused-appellant
even without a warrant of arrest.^[22] Pat.
Ugaddan witnessed the illegal act of selling shabu on the occasion of the buy-bust operation in front of
the room of the accused. Culled from
the testimony of Pat. Ugaddan, he did not make the arrest right then and there
because there were only himself and the informant as against the different male
and female voices he heard emanating from both rooms of appellant’s house. Additionally, Pfc. Reyes instructed Pat.
Ugaddan that after the consummation of the sale he should report thereon and
afterwards they would all go to where the transaction took place.^[23]

We find the explanation of Pat. Ugaddan acceptable if not
satisfactory. In buy-bust operations
where the illegal sale can be witnessed by the other members of the team from
strategic positions, usually the poseur-buyer gives a pre-arranged signal to
arrest the seller. In these cases,
considering that the operation took place inside the house of appellant,
understandably, Pat. Ugaddan and his informant had to get out of the house and
inform their backup that the sale had been consummated. Furthermore, a weighty consideration is the
fact that, as previously stated, Pat. Ugaddan immediately gave the shabu to Pfc. Reyes who was only a
block away and after the latter had determined that it was shabu, which only took a few
minutes,^[24]
they all immediately proceeded to the house of appellant and arrested
him. It was a continuing buy-bust
operation which, as the phrase connotes, commenced with buying shabu and culminated in his
arrest. Since his arrest was lawful, it
follows that the incidental search was also valid.^[25]

The case of People v. Catan^[26] involves factual circumstances similar
to those attending the case at bench. Two (2) members of the buy-bust team, acting as poseur-buyers, bought
marijuana from the accused inside his house while the other members positioned
themselves outside. After receiving the
marijuana, the poseur?buyers immediately went out of the house and gave a
pre-arranged signal to their waiting companions. The other team members them rushed inside the house and arrested
the accused. Immediately after, the
team conducted a search of the premises which yielded several kilos of
marijuana. In this appeal, the accused
asserted that he was illegally arrested and that the search of his premises was
likewise illegal. But we brushed aside
these assertions with this ratiocination –

x x x x Appellant was arrested in flagrante delicto in the
act of selling and delivering marijuana to the poseur-buyers. His case therefore falls under the category
of a valid warrantless arrest (Sec. 5, Rule 113, 1985 Rules on Criminal Procedure). The subsequent search of his house which
immediately followed yielding other incriminating evidence, and which became
the basis of his conviction for possession of a prohibited drug, was a search
contemporaneously made and as an incident to a valid warrantless arrest in the
immediate vicinity where the arrest was made (Nolasco v. Paño, G.R. No.
69803, 30 January 1987, 147 SCRA 509). That is a recognized exception to the general rule that any search and
seizure must be supported by a valid warrant (Manipon v. Sandiganbayan, G.R. No. 58889, 31
July 1986, 143 SCRA 267). The inclusion
of the seized items, therefore, as evidence for the prosecution, was in
conformity with the provision on lawful searches (People v. Castiller, G.R. No. 87783, 6 August
1990, 188 SCRA 376).^[27]

It will serve no purpose to dwell on the argument of
accused-appellant regarding the inadmissibility of the receipt of property
seized since the other evidence on record is more than adequate to sustain his
conviction.^[28]

In cases involving persons accused of violating R.A. 6425, the
defense, almost always, is denial. So
it is in the present case. Yet, the
denial of appellant cannot prevail over the detailed and unshaken testimonies
of the apprehending officers.^[29]

We conclude that the buy-bust operation was not tainted with
infirmity which could absolve accused-appellant from criminal liability. Hence, we affirm his conviction. But his appeal is not altogether futile
because he will, to a certain degree, benefit from it. In view of the amendatory provisions of Sec.
17 of R.A. 7659, which covers violations of Secs. 15 and 16 of R.A. 6425, we
have to modify the penalties imposed on him insofar as the amendments favor
him. Thus –

Sec. 17. Section 20,
Article IV of Republic Act No. 6425, as amended, known as The Dangerous Drugs Act of 1972, is
hereby amended to read as follows: ‘Sec. 20. – Application
of Penalties, Confiscation and Forfeiture of the Proceeds or Instrument of the
Crime. – The penalties for offenses under
Sections 3, 4, 7, 8 and 9 of Article II and Sections 14, 14-A, 15 and 16 of
Article III of this Act shall be
applied if the dangerous drugs involved is in any of the following quantities x
x x x 3. 200 grams or more of shabu or
methylamphetamine hydrochloride x x x x Otherwise, if the quantity involved is
less than the foregoing quantities, the penalty shall range from prision correccional to reclusion perpetua depending upon
the quantity x x x x

Taking into account the total weight of shabu involved in these cases,
which is only 5.2096 grams, the applicable penalty is that provided in the
second paragraph of Sec. 17. Applying
by analogy the ruling in the leading case of People v. Simon^[30], we divide the quantity of shabu below 200 grams or 199 grams
into three (3) as basis for determining the proper imposable penalty, i.e.,
either prision correccional, prision
mayor or reclusion
temporal. The case of People v. Navarro^[31] spearheaded such apportionment as
follows:

Weight of shabu              Imposable Penalty

from 134 to 199 grams    reclusion temporal

from 66 to 133 grams      prision mayor

below 66 grams               prision correccional

Thus, applying the Indeterminate
Sentence Law, and there being neither mitigating nor aggravating circumstances,
the maximum penalty to be imposed on the accused shall be taken from the medium
period of prision correccional, while
the minimum shall be taken from the penalty next lower in degree, which is arresto mayor, in any of its
periods. Consequently, the Court
considers fair and just imposing upon the accused a prison term of four (4)
months and twenty (20) days of arresto mayor maximum as minimum, to four (4) years and two (2)
months of prision correccional medium
as maximum in each of the two (2) cases against the accused.^[32]

WHEREFORE, the judgment of conviction in Crim. Case No.
1118 (G.R. No. 106286) and Crim. Case No. 1119 (G.R. No. 106287) is AFFIRMED, subject to the modification
that accused-appellant ROMEO CUACHON Y SOLER is sentenced in each case to an
indeterminate prison term of four (4) months and twenty (20) days of arresto mayor maximum as minimum,
to four (4) years and two (2) months of prision correccional medium as maximum, to be served
successively by accused-appellant, with costs against him.

SO ORDERED.

Padilla, (Chairman), Davide, Jr., Quiason, and Kapunan, JJ., concur.

^[1]
Records, p. 1.

^[2]
Id., p. 3.

^[3]
Rollo, pp. 91-92.

^[4]
Two (2) foils of suspected dried marijuana leaves; Records, p. 290.

^[5]
Two (2) tin foils of suspected shabu placed
in a clear plastic box; ibid.

^[6]
Records, p. 295.

^[7]
Id, p. 297.

^[8]
TSN, 4 January 1990, pp. 7-8.

^[9]
TSN, 26 February 1990, p. 52.

^[10]
Rollo, pp. 87-88.

^[11]
TSN, 4 January 1990, p. 9; TSN, 26 February 1990, p. 53.

^[12]
People v. Collantes, G.R. No. 97146, 8 May 1992, 208 SCRA 853.

^[13]
People v. Simbulan, G.R.
No. 100754, 13 October 1992, 214 SCRA 537.

^[14]
Rollo, pp. 90-91.

^[15]
People v. William, G.R. No. 93712, 15 June 1992, 209 SCRA 808.

^[16]
People v. Abelita, G.R. No. 96318, 26 June 1992, 210 SCRA 497.

^[17]
TSN, 4 January 1990, p. 5.

^[18]
Id., p. 6.

^[19]
Id., p. 9.

^[20]
People v. Pascual, G.R. No. 88282, 6 May 1992, 208 SCRA 393.

^[21]
People v. Hoble, G.R. No. 96091,
22 July 1992, 211 SCRA 675.

^[22]
People v. Fernandez, G.R. No.
86495, 13 May 1992, 209 SCRA 1.

^[23]
TSN, 26 February 1990, pp. 55-56.

^[24]
TSN, 4 January 1989, p. 5.

^[25]
People v. Blas, G.R. No. 97930, 27 May 1992, 209 SCRA 339.

^[26]
G.R. No. 92928, 21 January 1992, 205
SCRA 235.

^[27]
Id., p. 242.

^[28]
People v. Viente, G.R. No. 103299, 17 August 1993, 225 SCRA 361.

^[29]
People v. Mauyao, G.R. No. 84525, 6 April 1992, 207 SCRA
732.

^[30]
G.R. No. 93028, 29 July 1994.

^[31]
G.R. No. 103394, 2 September 1994.

^[32]
People v. Simon, Note 30, exhaustively discusses the application of
penalties with respect to the peculiar provision of the second par. of Sec. 20, Art. IV, of R.A. 6425, as amended by Sec. 17 of R.A. 7659.