FIRST DIVISION

[G.R. No. 99838. October 23, 1997.]

PEOPLE OF THE PHILIPPINES, plainti-appellee, vs. ERNESTO
ENRIQUEZ y ROSALES and WILFREDO ROSALES y YUCOT,
accused-appellants.

The Solicitor General for plaintiff-appellee.

Public Attorney's Office for accused-appellants.
SYNOPSIS
Enriquez and Rosales were convicted for violating Section 4, Article II, of RA. No.
6425. According to the prosecution, on 05 June 1990, Sgt. Pedro Cerrillo, Jr., Ocerin-Charge of the Intelligence and Drug Law Enforcement Unit of Police Station No.
2, of the Western Police District, was in the vicinity of North Harbor routinely
scouting for information from his civilian informants. "Danny," a porter and a
member of the Anti-Drug Abuse Movement ("ADAM") informed Sgt. Cerrillo that a
freelance porter a.k.a. "Bulag," was looking for prospective buyers of marijuana.
Having in mind a buy-bust operation, Sgt. Cerrillo instructed Danny to tell "Bulag"
that he (Danny) had come across a buyer. The plan was broached to Patrolwoman
Maramot. Using his own jeep, Sgt. Cerrillo went to his house, procured 10 pieces of
one hundred peso bills to be used in the projected buy-bust operation and had them
xeroxed showing their serial numbers. He handed the buy-bust money to Pat.
Maramot. Since there were no other operatives available, Sgt. Cerrillo sought the
assistance of ADAM members Mendoza, Betita and Trinidad. The group proceeded to
Pier 10 at North Harbor. Pat. Maramot and Mendoza, posing as a couple, waited for
"Danny" who fetched "Bulag" while the others pretended to be bystanders. Danny
arrived with accused Rosales alias "Bulag" who talked with the poseur-buyers. Then,
they walked and entered an alley until they reached a house. A man, later identied
to be accused Enriquez, asked Pat. Maramot if she has the money. Pat. Maramot
showed the marked money to Enriquez and they were allowed to enter the house.
Sgt. Cerrillo followed the group and saw them exit through the back door with
Rosales who was carrying a plastic bag. Sgt. Cerrillo's group followed them until Pat.
Maramot announced that she was a policewoman. Sgt. Cerrillo held Rosales and
took the bag containing marijuana wrapped in plastic. Sgt. Cerrillo also "picked up"
Enriquez for investigation. The trial court, giving credence to the evidence of the
prosecution, found both accused guilty beyond reasonable doubt of the crime
charged.
ACcDEa

The Court held that it found no justication for holding dierently from the ndings
made by the trial court.

SYLLABUS
1.
REMEDIAL LAW; EVIDENCE; WITNESSES; CREDIBILITY; FINDINGS OF TRIAL
COURT, RESPECTED. The evaluation made by the trial court on the credibility of
witnesses is viewed with respect. The trial judge, who has the distinct advantage of
being able to observe closely the demeanor and deportment of witnesses on the
stand as well as the manner in which they testify, undoubtedly can better
determine than anyone else if such witnesses are telling or are not telling the truth.
He is in an ideal position to weigh conicting testimonies and unless, as so
repeatedly said, he has obviously discarded or missed certain facts of substance and
signicance that, otherwise, would have altered his judgment, an assessment on
credibility made by him should indeed deserve approbation by an appellate court.
DETACa

2.
ID.; ID.; DRUG CASES; USUAL DEFENSE OF FRAME-UP AND EXTORTION
REQUIRES CLEAR AND CONVINCING EVIDENCE. In drug related cases,
particularly in a buy-bust operation, the contention that the accused has merely
been framed up by law enforcement personnel for selsh motives is quite often
raised by the defense. For this claim to prosper, the evidence adduced must be clear
and convincing in order to overcome the presumption that government ocials
have performed their duties in a regular and proper manner. Appellant, regrettably,
has miserably failed to substantiate his allegations in this respect. And like an
alleged frame-up, a supposed extortion by police ocers has, too, been a standard
defense in drug cases. Appellant's failure to offer evidence, independently of his bare
claim of extortion, suggests that this defense could either be a fabrication or an
afterthought. If, truly, the arresting police ocers have tried to extort money from
him, it should have behooved appellant to come forward with the proper charges
against the erring police officers.
3.
ID.; ID.; ALIBI; A WEAK DEFENSE. Alibi is denitely a weak defense
although it may occasionally prove to be a good plea. In order to be eective,
however, this defense requires proof that it would be physically impossible for the
accused to be at the locus criminis at the time of the commission of the crime.
Where there is even the least chance for the accused to be present at the crime
scene, the alibi seldom will hold water. Most signicantly, the defense of alibi
crumbles in the face of a positive identification of the malefactor.
4.
CRIMINAL LAW; DANGEROUS DRUGS ACT (R.A. 6425); DELIVERY OF
PROHIBITED DRUGS, INCLUDED. Section 4, Article II, of R.A. No. 6425, as
amended, penalizes not only the sale but also the delivery of prohibited drugs.
Selling is only one of the acts covered by the statutory provision. The law denes
the word "deliver" as "a person's act of knowingly passing a dangerous drug to
another personally or otherwise, and by any manner with or without consideration."
"Delivery," although not incidental to a sale, is a punishable act by itself; while
"sale" may involve "money or any other material consideration," "delivery" may be
"with or without consideration."
5.
ID.; ID.; SUBJECTIVE PHASE IN COMMITTING A CRIME, NOT APPLICABLE.
The subjective phase in the commission of a felony is that portion of its execution

starting from the point where the oender begins by overt acts to pursue the crime
until he is prevented, against his will, by some outside cause from performing all of
the acts which would produce the oense. If the subjective phase has not yet
passed, then the crime is only attempted. If that phase has been done but the
felony is not produced, the crime is frustrated. The crime is consummated if,
following the subjective phase, the last of the elements of the felony meets to
concur. These rules are inapplicable to oenses governed by special laws. Here, the
crime with which appellant is being charged is penalized by a special law. The
incomplete delivery claimed by appellant is thus inconsequential. The act of
conveying prohibited drugs to an unknown destination has been held to be
punishable, and it is immaterial whether or not the place of destination of the
prohibited drug is reached.
6.
ID,; CONSPIRACY; PRESENT IN CASE AT BAR. The sale and delivery of
marijuana constituted punishable acts under Section 4, Article II, of R.A. No. 6425,
as amended. Appellants Enriquez and Rosales evidently confederated towards the
common purpose of selling and delivering marijuana. Conspiracy could be inferred
from the acts of the accused, whose conduct before, during and after the
commission of the crime would show its existence. It was appellant Rosales who
brought the poseur-buyer to appellant Enriquez for the purchase of marijuana. It
was upon the instruction of appellant Enriquez, apparently to retain control of the
unpaid portion of the six-kilogram contraband, that appellant Rosales was to carry
the sack to the supposed residence of the poseur-buyers. In conspiracy, the act of
one conspirator could be held to be the act of the other.
7.
ID.; DANGEROUS DRUGS LAW (R.A. 7659); APPLICABLE PENALTY. R.A. No.
7659, amending the Dangerous Drugs Law, now provides that if the quantity of
drugs involved in any of the punishable acts is more than any of the amounts
specied in the law, the penalty of reclusion perpetua to death must be imposed.
Considering that the marijuana involved here weighed more than 750 grams, the
maximum specied amount for marijuana, appellants, ordinarily, are to be meted
that penalty. An amendatory law, however, may only be applied retroactively if it
proves to be benecial to the appellants. In this case, it would not be that favorable
to them; hence, the Court could only impose the penalty of life imprisonment upon
appellants. The penalty of reclusion perpetua would mean that the accused would
also have to suer the accessories carried by that penalty, as well as the higher ne,
provided for by R.A. No. 7659. Appellants must, accordingly, still bear the penalty
imposed on them by the trial court.
DECISION
VITUG, J :
p

Ernesto Enriquez y Rosales and Wilfredo Rosales y Yucot were charged with having
violated Section 4, Article II, of Republic Act ("R.A.") No. 6425 (Dangerous Drugs Act
of 1972), as amended, in an information that read:

"That on or about June 5, 1990, in the City of Manila, Philippines, the said
accused, conspiring and confederating together and mutually helping each
other, not being authorized by law to sell, deliver, give away to another or
distribute any prohibited drug, did then and there wilfully and unlawfully sell
or oer for sale six (6) kgrms of dried owering tops of marijuana stued in
a plastic sack, which is a prohibited drug.
"Contrary to law." 1

The antecedent facts leading to the ling of the information, according to the
prosecution, are hereunder narrated.
At around eleven o'clock in the morning of 05 June 1990, Sgt. Pedro I. Cerrillo, Jr.,
the Ocer-in-Charge of the Intelligence and Drug Law Enforcement Unit of Police
Station No. 2 (located in Tondo, Manila) of the Western Police District, was in the
vicinity of North Harbor routinely scouting for information from his civilian
informants. Near the gate fronting Pier 10, "Danny," a porter and member of the
Anti-Drug Abuse Movement ("ADAM"), approached and informed Sgt. Cerrillo that a
free-lance porter at the North Harbor, a.k.a. "Bulag," was looking for prospective
buyers of marijuana. Sgt. Cerrillo instructed Danny to say that he had come across a
couple who would be interested in buying the prohibited drug. Sgt. Cerrillo had then
in mind a possible buy-bust operation.

The buy-bust plan was broached to Patrolwoman Shirley Maramot who was
manning Police Station No. 2. Fellow police ocers were at the time on duty at the
U.S. Embassy where a "rally" by certain activists was in progress. Using his own
owner-type jeep, Sgt. Cerrillo repaired to his house at 727 Moriones St., Tondo,
Manila, to procure ten (10) pieces of one hundred peso bills 2 to be used in the
projected buy-bust operation. 3 He thereupon had, at a store near the police station,
xerox copies made of the bills that can readily show the serial numbers which he
had also noted down in his personal notebook. 4
cdpr

Back at the police station, Sgt. Cerrillo handed the buy-bust money to Pat. Maramot.
Since there were no other "operatives" at the station available for the operation,
Sgt. Cerrillo sought the assistance of ADAM members Joseph Mendoza, Amado
Betita and Alex Trinidad. The team, including "Danny," were briefed by Sgt. Cerrillo.
The plan called for Pat. Maramot and Mendoza to pose as the couple interested in
buying marijuana and for Trinidad, Betita and Sgt. Cerrillo to act as the "back-up"
men. Pat. Maramot was to nod her head as soon as the sale was consummated. 5
At about 11:35 a.m., the group, using two vehicles, proceeded to the vicinity of Pier
10 at the North Harbor. At the corner of Moriones Street and Radial Road 10, Pat.
Maramot and Mendoza sat on a bench by a store to wait for the return of "Danny,"
who had meanwhile left to fetch "Bulag," while Sgt. Cerrillo, Trinidad and Betita
strategically positioned themselves at a billiard hall, mingling with spectators and
pretending to be bystanders. The billiard hall was only about ten meters away from
Pat. Maramot's group, and it afforded a good view of the place. 6

Moments later, Danny arrived with accused Wilfredo Rosales, a.k.a. "Bulag." Rosales
talked with the poseur-buyers. After about ve minutes, the poseur-buyers, Rosales
and the informant entered an alley, walking along shanties, until they reached a
house numbered 1349.
A half-naked man in green shorts emerged from one of the doors of the house. The
man, later identied to be accused Ernesto Enriquez, a.k.a. "Nene," asked Pat.
Maramot in Visayan accent, "Dala mo ba ang pera?" Pat. Maramot took out from her
pocket the bundle of the marked money and showed it to Enriquez. The latter
allowed Maramot's group to enter the house. 7 Minutes later, as so pre-arranged,
Sgt. Cerrillo followed and proceeded to house No. 1349. Finding the door closed, he
went around the house. Sgt. Cerrillo saw Pat. Maramot, Mendoza and the informant
exit through the back door. Rosales, carrying a plastic bag, was with them. Again,
Sgt. Cerrillo's group followed Pat. Maramot and Rosales until the latter reached a
nearby waiting shed for jeepney passengers. At this point, Pat. Maramot announced
that she was a policewoman. Sgt. Cerrillo held Rosales and took his bag. Sgt.
Cerrillo opened the sack, and inside it was another sack containing marijuana
wrapped in plastic.
The group hurriedly returned to house No. 1349 only to nd that Enriquez had by
then left the premises. The team boarded the police service jeep and moved on to
Kagitingan Street at the Lakandula detachment. Sgt. Cerrillo interviewed Rosales.
Upon being informed that Enriquez would usually visit the Pier 10 area, Sgt. Cerrillo
proceeded to the place. After scouring the area, a security guard supervisor at the
pier, who accompanied the group, spotted Enriquez walking near the pier. Sgt.
Cerrillo "picked up" Enriquez and brought him to the Lakandula detachment for
investigation. Later, Minda, the wife of Enriquez, arrived. Someone, at the request
of Enriquez, had fetched her to "bring the money." Enriquez told her to return the
amount to Sgt. Cerrillo. She took out from her wallet its contents three of which
were the 100-peso marked bills. 8 Minda became hysterical. She embraced Sgt.
Cerrillo and begged him to forgive her husband. Sgt. Cerrillo told her to instead see
the station commander. 9
Sgt. Cerrillo apprised Enriquez and Rosales of their constitutional rights. Sgt. Cerrillo
advised Enriquez, in front of the latter's wife, that he should look for a lawyer so
that his statement could be taken. Sgt. Cerrillo prepared the request for the
examination of the evidence taken from the accused and the adavit 10 of the
latter's arrest. 11
On the evening of 05 June 1990, Minda and other relatives of Enriquez approached
Sgt. Cerrillo for the possibility of "settling" the case. During the trial, another
relative, a senior supervising agent of the Napolcom, also approached and requested
Sgt. Cerrillo to help out. 12
Patrolwoman Shirley Maramot, 37 years old, assigned at Police Station No. 2,
corroborated Sgt. Cerrillo. She testied that she was requested by Sgt. Cerrillo to be
the poseur-buyer in the buy-bust operation conducted in the morning of 05 June
1990 along Alinian Street, Tondo, Manila. After Sgt. Cerrillo had conducted a

brieng and provided her with the buy-bust money, Pat. Maramot went with
Mendoza, who portrayed the role of her husband, and the informer to Radial 10 at
Pier 14. When Wilfredo Rosales turned up, he asked if she had cash with her. After
being shown the money, Rosales led her to a house numbered 1349. The poseurbuyers were made to wait momentarily while Rosales talked to Ernesto Enriquez.
Rosales later signaled Pat. Maramot, who was around four (4) meters away, to
again show her money. Forthwith, Pat. Maramot was led to the house of Enriquez.
Once inside a small room, Enriquez locked the door. Enriquez asked Pat. Maramot
how much money she had. She replied that she only had P1,000.00 since she was
not sure that she could get as much as the one-half sack of the contraband shown to
her. Pat. Maramot was told she could get the lot for P4,500.00. She said she was
willing to get the lot if she could be trusted with the balance of the price. Enriquez
agreed. Pat. Maramot handed over the P1,000.00 to Enriquez. The latter was about
to hand over the marijuana when he decided to, instead, have Rosales personally
deliver the marijuana.
cdasia

Pat. Maramot followed Rosales until Maramot nally introduced herself as a

policewoman. Rosales posthaste attempted to board a passing passenger jeep but
Pat. Maramot and Sgt. Cerrillo, who had rushed in, were able to timely get hold of
Rosales. 13
NBI Forensic Chemist George J. de Lara issued, on 06 June 1990, a certication to
the eect that the specimen submitted to him was positive for marijuana. 14 Sgt.
Cerrillo prepared a case report 15 and the respective booking sheet and arrest report.
16 The ocial report of the NBI forensic chemist, dated 07 June 1990, disclosed the
following findings:
"Weight of
examination)

specimen

6.00

kilograms

(before

5.999 kilograms (after examination)

Microscopic, chemical and chromatographic examinations
made on the above-mentioned specimen gave POSITIVE
RESULTS for MARIHUANA." 17

On the same day, Station Commander Benjamin de Jesus endorsed the case against
Enriquez and Rosales to the City Prosecutor for further proceedings. The inquest
scal recommended 18 that the two accused be charged with violation of Section 4,
Article II, Republic Act No. 6425, as amended.
The defense gave a different version of the incident.
Accused Rosales testied that he had come from Bohol to Manila in April of 1990
and stayed with accused Enriquez, his cousin, while working as an extra porter of
William Lines. At around 11:30 in the morning of 05 June 1990, he was on his way
home from work when a male person whom he recognized only by face sought his
assistance in carrying a sack to a place where jeepney commuters would take their
ride. The sack was colored white and emitted the smell of dried sh. He was

promised P20 in exchange for his help. At a junction, a security guard whom he later
identied to be Homer Ciesta, blocked and pushed him inside a vehicle where he
was promptly handcued. During the commotion, the owner of the sack
disappeared. 19 Rosales was brought to a house near the slum area in Parola where
P20,000 was quoted for his release by Sgt. Cerrillo. 20 When Rosales did not heed
the demand, he was brought rst to the Lakandula detachment and then to Station
No. 2 of the Western Police District.
On his part, Enriquez, a resident of 1349-C Alinian Street, Tondo, Manila, claimed
that he was in the business of purchase and sale of oil at the North Harbor, under
the business name of Nie-Men R. Enriquez Enterprises, 21 being the grantee of a
permit to operate an oil sludge collection service. 22 He was under contract by the
Lorenzo Shipping Corporation from January 1983 to April 1984. He was also the
Vice-President of the "Kapisanan ng Maralitang Naninirahan ng Tondo , Inc." a civic
organization and a recipient of a certication of merit from the National Steel
Corporation. 23
Recounting his whereabouts in the morning of 05 June 1990, Enriquez said he left
his house at around 11:45 a.m. for Pier 10 of the North Harbor, barely a thirtyminute walk away from his residence, to meet his brother, Victor Enriquez, at the
pier. He had with him P2,000 in P100 denominations stacked in his wallet.
Robinson Lumbis, a neighbor who was road testing his cab along North Harbor, saw
and greeted Enriquez. 24 Betty Quimbo, another neighbor, later saw Enriquez with
his brother. 25 Appellant took his lunch at home and thereafter hurriedly returned to
the pier. He was not able to spend the night in his house. The following day, 06 June
1990, at around two o'clock in the afternoon, Enriquez went to the maintenance
section of the Lorenzo Shipping Lines to pay for the oil he had obtained from its
vessels. Homer Ciesta, the oce-in-charge of the security guards of the shipping
line, invited Enriquez, and the latter agreed, to join him (Ciesta) earn some "extra
money." The two left for the squatter's area in Parola and, once there, Ciesta told
Enriquez to approach a certain person, later identied to be Sgt. Cerrillo, who
instantly handcued him. Sgt. Cerrillo demanded P20,000 in exchange for his
freedom. When he refused to give in to the demand, Enriquez was brought to the
Lakandula detachment where the P2,000 he had in his wallet was taken and
presented in evidence as the amount used in the buy-bust operation. He was
brought to Station No. 2 of the WPD for investigation. 26 Homer Ciesta went to tell
Arminda, the wife of Enriquez, to bring some money to the Lakandula police
detachment. Arriving at the detachment, someone approached Arminda and asked
her whether she had the money. She replied in the armative. The person then
grabbed her wallet, took its contents and later returned the empty wallet. 27

On 24 January 1991, the trial court, giving credence to the evidence submitted by
the prosecution, found both accused guilty beyond reasonable doubt of the crime
charged and sentenced each of them to life imprisonment and to pay a ne of
P30,000.

In their appeal to this Court, Rosales and Enriquez have filed separate briefs.
Appellant Enriquez insists on his innocence and faults the trial court for giving too
much credence to the testimony of Sgt. Cerrillo and Pat. Maramot who, Enriquez
asserts, have merely framed them up for selsh motives. He theorizes that it would
seem incredible for either Pat. Maramot or Sgt. Cerrillo to have left and abandoned
Station No. 2 considering that the Station Commander and his men have all been
posted in the then on-going rally at the U.S. Embassy. He downgrades the
prosecution's asseveration that Pat. Maramot, being unarmed, could not eect his
immediate arrest, and that Sgt. Cerrillo has so used his personal funds as marked
money. Enriquez also questions the six-day delay in the filing of the information.
The Court is scarcely impressed.
Simply said, appellant Enriquez would assail the credibility of the two prosecution
witnesses. Almost always, the evaluation made by the trial court on the credibility
of witnesses is viewed with respect. The trial judge, who has the distinct advantage
of being able to observe closely the demeanor and deportment of witnesses on the
stand as well as the manner in which they testify, undoubtedly can better
determine than anyone else if such witnesses are telling or are not telling the truth.
He is in an ideal position to weigh conicting testimonies and unless, as so
repeatedly said, he has obviously discarded or missed certain facts of substance and
signicance that, otherwise, would have altered his judgment, an assessment on
credibility made by him should indeed deserve approbation by an appellate court. 28
The Court, in the case at bench, has scrutinized the records, and it nds no
justification for holding differently from the findings made by the trial court.
In drug related cases, particularly in a buy-bust operation, the contention that the
accused has merely been framed up by law enforcement personnel for selsh
motives is quite often raised by the defense. For this claim to prosper, the evidence
adduced must be clear and convincing 29 in order to overcome the presumption that
government ocials have performed their duties in a regular and proper manner. 30
Appellant, regrettably, has miserably failed to substantiate his allegations in this
respect.
Enriquez questions the six-day delay in the ling of the information against him
which he attributes to an extortion attempt made on him. Like an alleged frame-up,
a supposed extortion by police ocers has, too, been a standard defense in drug
cases. Appellant's failure to oer evidence, independently of his bare claim of
extortion, suggests that this defense could either be a fabrication or an
afterthought. If, truly, the arresting police ocers have tried to extort money from
him, it should have behooved Enriquez to come forward with the proper charges
against the erring police ocers. 31 No criminal or administrative charges appear to
have been led by him. It is equally strange that the supposed extortions neither
appeared in appellant's counter-adavit 32 nor in his adavit 33 both prepared by
his counsel of choice. In any event, the Court does not see any real undue delay on
the part of the police. The station commander led the case with the prosecutor on
07 June 1990, the same day that the NBI forensic chemist's ocial report was

released. The transmittal letter, 34 of the station commander, bears the

recommendation, likewise dated 07 June 1990, of the inquest scal nding a
violation of Section 4, Article II, of R.A. No. 6425.
Appellant Enriquez surmised that it was strange for Sgt. Cerrillo and Pat. Maramot
to have left the police station unmanned just to conduct a buy-bust operation. Sgt.
Cerrillo explained that, being the Intelligence Ocer in Station No. 2, he would
spend most of his duty hours in the eld. 35 He chose Pat. Maramot to be the
poseur-buyer because she was not well known in the place of operation. While she
had a desk job she could also be assigned elsewhere when the situation would
demand. Furthermore, the buy-bust operation was conducted in an area not far
from the police station (testied to be at an approximate distance of between the
Manila City Hall and the Luneta Park 36 ).
cda

On cross-examination, Pat. Maramot explained why she could not arrest Enriquez
when he received the money. She testified:
"ATTY. ESMERO:
"During the time that you were in that room together with Enriquez and you
said that Enriquez took up a half sack of marijuana under the table, did it not
occur to your mind to arrest him immediately during that time and
introduced yourself as a policewoman together with your husband?
"WITNESS:
"If you will place yourself in my situation, I am so small to arrest a person
and I am not so big so I have to wait for my companions, sir.
"INTERPRETER:
"Witness pointed to the Accused.
"ATTY. ESMERO:
"How about your supposed husband?
"WITNESS:
"Besides we did not bring anything even a gun because they are outside, sir.
"ATTY. ESMERO:
"You could have immediately went (sic) out of the door and after that
contacted Cerrillo. You could have told him immediately because he was
about seven (7) meters from that room?
"WITNESS:
"The door was locked, sir.
"ATTY. ESMERO:

"You could have knocked at the door if you want to call him?
"WITNESS:
"It could not be heard because in that alley there were adjacent rooms, sir,
'kuwarto-kuwarto.'
"ATTY. ESMERO:
"Now, you said that you went out through the back door. Who was together
with you when you went out at the back door?
"WITNESS:
"Joseph, the one who pretended to be my husband, sir.
"ATTY. ESMERO:
"How about Rosales?
"WITNESS:
"He passed through the front door together with the informant, sir.
"ATTY. ESMERO:
"And the front door was where Pat. Cerrillo was positioned?
"WITNESS:
"No, sir. Cerrillo was positioned at the side. He could not meet them
immediately because when you go out at that door, it is already a street." 37

The use of Sgt. Cerrillo's own money in the buy-bust operation could be expected.
Police Station No. 2 was "not logistically funded." 38 In the buy-bust operation, only
three 100-peso bills of the marked money were recovered which, unfortunately,
were lost to thieves when Sgt. Cerrillo had momentarily parked his jeep within the
vicinity of the police station on 11 July 1990. 39 He reported this loss along with the
loss of an ammunition belt pack with six (6) live cal. .38 bullets and his Parker
ballpen. 40 At any rate, the non-presentation of the buy-bust money could not
adversely affect the case against appellants. 41

Alibi is denitely a weak defense although it may occasionally prove to be a good

plea. In order to be eective, however, this defense requires proof that it would be
physically impossible for the accused to be at the locus criminis at the time of the
commission of the crime. Where there is even the least chance for the accused to be
present at the crime scene, the alibi seldom will hold water. 42 Most signicantly,
the defense of alibi crumbles in the face of a positive identication of the
malefactor. 43
In his case, appellant Rosales argues that to sustain a conviction for the crime of
selling marijuana, the sale must be clearly established which, he asserts, the

prosecution has failed to do.

The Court cannot sustain the argument.
Under Section 4, Article II, of R.A. No. 6425, 44 as amended, the law penalizes not
only the sale but also the delivery of prohibited drugs.
"Section 4.
Sale, Administration, Delivery, Distribution and Transportation
of Prohibited Drugs . The penalty of life imprisonment to death and a ne
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 oense is a minor, or should a prohibited drug involved in any
oense under this Section be the proximate cause of the death of a victim
thereof, the maximum penalty herein provided shall be imposed." (Emphasis
supplied.)

Selling is only one of the acts covered by the statutory provision. The law denes
the word "deliver" as "a person's act of knowingly passing a dangerous drug to
another personally or otherwise, and by any manner with or without consideration."
"Delivery," although not incidental to a sale, is a punishable act by itself; while
"sale" may involve "money or any other material consideration," 45 "delivery" may
be "with or without consideration."
Appellant Rosales contends that while criminal intent need not generally be
proved in crimes that are mala prohibita, knowledge that the sack in his
possession contained a prohibited drug must nevertheless be established. Indeed,
Section 2(f) of the Dangerous Drugs Law requires that a person who delivers a
prohibited drug must "knowingly" pass such contraband to another person. Thus,
in one case, the Court has said:
". . . While it is true that the non-revelation of the identity of an informer is a
standard practice in drug cases, such is inapplicable in the case at bar as the
circumstances are dierent. The would-be buyer's testimony was absolutely
necessary because it could have helped the trial court in determining
whether or not the accused-appellant had knowledge that the bag contained
marijuana, such knowledge being an essential ingredient of the oense for
which he was convicted. The testimony of the poseur-buyer (not as an
informer but as a 'buyer') as to the alleged agreement to sell therefore
became indispensable to arrive at a just and proper disposition of this case."
46

In this case, the trouble appears to be that appellant Rosales incorrectly assumes to
be, or gives an impression of being, unaware of the prohibited drug involved in the
questioned transaction with appellant Enriquez; in point of fact, however, it is
suciently shown that Rosales has known all along that the deal between Enriquez
and the poseur-buyers had only to do with marijuana.

Appellant Rosales believes that his act of carrying the sack of marijuana is a mere
attempt to deliver the prohibited drug. In other words, the sack being still within
his control, he could, he states, have easily refused to deliver the item to the
poseur-buyer. Here, he seeks to capitalize on his being supposedly still in the
subjective phase of the crime. Appellant Rosales thus submits that, if found
guilty, he should only be held accountable for attempted delivery of a prohibited
drug.
Article 6 of the Revised Penal Code provides:
"ART. 6.
Consummated, frustrated, and attempted felonies .
Consummated felonies, as well as those which are frustrated and
attempted, are punishable.
"A felony is consummated when all the elements necessary for its execution
and accomplishment are present; and it is frustrated when the oender
performs all the acts of execution which would produce the felony as a
consequence but which, nevertheless, do not produce it by reason of
causes independent of the will of the perpetrator.
"There is an attempt when the oender commences the commission of a
felony directly by overt acts, and does not perform all the acts of execution
which should produce the felony by reason of some cause or accident other
than his own spontaneous desistance."

The subjective phase in the commission of a felony is that portion of its execution
starting from the point where the oender begins by overt acts to pursue the crime
until he is prevented, against his will, by some outside cause from performing all of
the acts which would produce the oense. If the subjective phase has not yet
passed, then the crime is only attempted. If that phase has been done but the
felony is not produced, the crime is frustrated. 47 The crime is consummated if,
following the subjective phase, the last of the elements of the felony meets to
concur. These rules are inapplicable to offenses governed by special laws. 48
Unfortunately for appellant, the crime with which he is being charged is
penalized by a special law. The incomplete delivery claimed by appellant Rosales,
granting that it is true, is thus inconsequential. The act of conveying prohibited
drugs to an unknown destination has been held to be punishable, 49 and it is
immaterial whether or not the place of destination of the prohibited drug is
reached. 50
In sum, the facts proven beyond reasonable doubt in this case were that: (a) Two
police ocers, one of them a woman, conceived of and executed a buy-bust
operation; (b) the operation led to the red-handed apprehension of appellant
Rosales just as he delivered the illegal drug; and (c) appellant Enriquez who had
peddled the same to the poseur-buyer was himself later arrested shortly thereafter.
The sale and delivery of marijuana constituted punishable acts under Section 4,
Article II, of R.A. No. 6425, as amended. Appellants Enriquez and Rosales should
bear the consequences of their triing with the law. The two evidently confederated

towards the common purpose of selling and delivering marijuana. Conspiracy could
be inferred from the acts of the accused, whose conduct before, during and after the
commission of the crime would show its existence. 51 It was appellant Rosales who
brought the poseur-buyer to appellant Enriquez for the purchase of marijuana. It
was upon the instruction of appellant Enriquez, apparently to retain control of the
unpaid portion of the six-kilogram contraband, that appellant Rosales was to carry
the sack to the supposed residence of the poseur-buyers. In conspiracy, the act of
one conspirator could be held to be the act of the other. 52
cdasia

R.A. No. 7659, amending the Dangerous Drugs Law, now provides that if the
quantity of drugs involved in any of the punishable acts is more than any of the
amounts specied in the law, the penalty of reclusion perpetua to death 53 must be
imposed. Considering that the marijuana involved here weighed more than 750
grams, the maximum specied amount for marijuana, appellants, ordinarily, are to
be meted that penalty. An amendatory law, however, may only be applied
retroactively if it proves to be benecial to the appellants. In this case, it would not
be that favorable to them; hence, like in People vs. Ballagan, 54 the Court could only
impose the penalty of life imprisonment upon appellants. The penalty of reclusion
perpetua would mean that the accused would also have to suer the accessories
carried by that penalty, as well as the higher ne, provided for by R.A. No. 7659. 55
Appellants must, accordingly, still bear the penalty imposed on them by the trial
court.
WHEREFORE, the questioned Decision of 21 January 1991 of the Regional Trial
Court of Manila, nding appellants Ernesto Enriquez and Wilfredo Rosales guilty
beyond reasonable doubt of the crime punished by Section 4, Article II, of R.A. No.
6425, as amended, and imposing on them the penalty of life imprisonment and the
payment of the fine of P30,000 is AFFIRMED. Costs against appellants.
SO ORDERED.

Davide, Jr., Bellosillo and Kapunan, JJ ., concur.

Footnotes

1.

Rollo, p. 7.

2.

Exhs. E-1 to E-10, Records, p. 40.

3.

Sgt. Pedro I. Cerrillo, Jr., TSN, 22 August 1990, pp. 13-19.

4.

Exh. J, Records, p. 47.

5.

TSN, 22 August 1990, pp. 20-25.

6.

Ibid., pp. 26-35.

7.

Ibid., pp. 36-41.

8.

TSN, 26 September 1990, pp. 4-7.

9.

Ibid., p. 13.

10.

Exh. F, Records, p. 41.

11.

TSN, 26 September 1990, pp. 16-17.

12.

Ibid., 23-24.

13.

TSN, 31 October 1990, pp. 4-21.

14.

Exh. B, Records, p. 38.

15.

Exh. H, Records, p. 45.

16.

Exhs. I & M, Records, pp. 48 and 52.

17.

Exh. C, Records, p. 39.

18.

Exh. K, Records, p. 50.

19.

TSN, 17 December 1990, pp. 36-42.

20.

Ibid., pp. 43-44.

21.

Exh. 4, Records, p. 115.

22.

Exh. 7, Ibid., p. 118.

23.

Exh. 5, Ibid., p. 116.

24.

Exh. 9, Ibid., p. 120.

25.

Exh. 8, Ibid., p. 119.

26.

TSN, 26 November 1990, pp. 7-12.

27.

Ibid., pp. 21-23.

28.

See People vs. Gabris, 258 SCRA 663.

29.

People vs. Lua, 256 SCRA 539.

30.

People vs. Jain, 254 SCRA 686.

31.

People vs. Doroja, 235 SCRA 238.

32.

Exh. O, Records, p. 121.

33.

Exh. P, Ibid., p. 62.

34.

Exh. K, Ibid., p. 50.

35.

TSN, 24 October 1990, p. 3.

36.

TSN, 31 October 1990, pp. 28-31.

37.

TSN, 31 October 1990, pp. 43-45.

38.

TSN, 24 October 1990, p. 9.

39.

Ibid., p. 11.

40.

Exh. N, Records, p. 53.

41.

People vs. Ang Chun Kit , 251 SCRA 660; People vs. Ganguso , 250 SCRA 268;
People vs. Herrera, 247 SCRA 433; People vs. Nicolas , 241 SCRA 67.

42.

People vs. Bracamonte, 257 SCRA 380; Enriquez himself admitted that his
residence was only half a kilometer away from Pier 10 and negotiable by a bare
thirty-minute walk (TSN, 26 November 1990, p. 15).

43.

People vs. Compendio, Jr., 258 SCRA 254.

44.

The offense was committed prior to the effectivity of R.A. No. 7659.

45.

Sec. 2(f), Art. I, Dangerous Drugs Act.

46.

People vs. Libag, 184 SCRA 707, 715.

47.

U.S. vs. Eduave, 36 Phil. 209.

48.

See AQUINO, THE REVISED PENAL CODE, Vol. I, 1987 ed., p. 97 citing U.S. vs.
Basa, 8 Phil. 89 and People vs. Ngan Te, 62 Phil. 588.

49.

People vs. Leangsiri, 252 SCRA 213.

50.

People vs. Lo Ho Wing, 193 SCRA 122.

51.

People vs. Leangsiri, supra.

52.

People vs. Alberca, 257 SCRA 613; People vs. Leangsiri, supra.

53.

Secs. 4 and 20 of Rep. Act No. 6425 as amended by Rep. Act No. 7659.

54.

247 SCRA 535.

55.

One of the reasons pointed out in the Ballagan case for the imposition of life
imprisonment and not reclusion perpetua is the now abandoned ruling in People
vs . Lucas (232 SCRA 537) xing the duration of reclusion perpetua at twenty (20)
years and one (1) day to forty (40) years. On 09 January 1995, however, the
Court issued a Resolution in the Lucas case clarifying that reclusion perpetua is
not a divisible penalty considering that Congress did not amend Arts. 63 and 76 of
the Revised Penal Code (240 SCRA 66).