THIRD DIVISION

[G.R. No. 99050. September 2, 1992.]

PEOPLE OF THE PHILIPPINES , plaintiff-appellee, vs. CONWAY B.

OMAWENG , accused-appellant.

The Solicitor General for plaintiff-appellee.

Joel C. Obar for accused-appellant.

SYLLABUS

1. CRIMINAL LAW; DANGEROUS DRUG ACT; ILLEGAL POSSESSION OF PROHIBITED

DRUGS; PROOF OF OWNERSHIP THEREOF BY THE ACCUSED NOT REQUIRED. — The
accused contends that the prosecution failed to prove that he is the owner of the
marijuana found inside the travelling bag which he had in his vehicle, a Ford Fiera. Proof of
ownership is immaterial. Accused was prosecuted for the dispatching in transit or
transporting of prohibited drugs pursuant to Section 4, Article II of R.A. No. 6425, as
amended. This section does not require that for one to be liable for participating in any of
the proscribed transactions enumerated therein, he must be the owner of the prohibited
drug. This section penalizes the pusher, who need not be the owner of the prohibited drug.
The law defines pusher as "any person who sells, administers, delivers, or gives away to
another, on any terms whatsoever, or distributes, dispatches in transit or transports any
dangerous drug or who acts as a broker in any of such transactions, in violation of this Act.
[Section 2 (m), R.A. No. 6425, as amended.] In People vs. Alfonso, [186 SCRA (1990)]
where the accused was charged with the unlawful transportation of marijuana under the
aforesaid Section 4, this Court ruled that ownership is not a basic issue.
2. REMEDIAL LAW; EVIDENCE; CIRCUMSTANTIAL EVIDENCE COMBINATION
THEREOF; WARRANTS A CONVICTION BEYOND REASONABLE DOUBT. — The facts, as
proven by the prosecution, establish beyond cavil that the accused was caught in the act
of transporting the prohibited drug or, in other words, in flagrante delicto. That he knew
fully well what he was doing is shown beyond moral certainty by the following
circumstances: (a) the prohibited drug was found in a travelling bag, (b) he is the owner of
the said bag, (c) he concealed the bag behind a spare tire, (d) he was travelling alone, and
(e) the Ford Fiera in which he loaded the bag was under his absolute control, pursuant to
Section 4, Rule 133 of the Rules of Court (on circumstantial evidence), the combination of
all these circumstances is such as to produce a conviction beyond reasonable doubt. Such
circumstances, unrebutted by strong and convincing evidence by the accused, even gave
rise to the presumption that he is the owner of the prohibited drug. [Section 3(j), Rule 131,
Rules of Court.]
3. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST UNREASONABLE
SEARCH & SEIZURE; WHEN DEEMED WAIVED. — Accused was not subjected to any search
which may be stigmatized as a violation of his Constitutional right against unreasonable
searches and seizures. [Section 2, Article III, 1987 Constitution.] If one had been made, this
Court would be the first to condemn it "as the protection of the citizen and the
maintenance of his constitutional rights is one of the highest duties and privileges of the
Court." [Rodriguez vs. Villamiel, 65 Phil. 230 (1937).] He willingly gave prior consent to the
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 search and voluntarily agreed to have it conducted on his vehicle and travelling bag. Thus,
the accused waived his right against unreasonable searches and seizures. As this Court
stated in People vs. Malasugui: (63 Phil. 221, 226 [1936]. See also Vda. de Garcia vs.
Locsin, 65 Phil. 689 [1938]; People vs. Donato, 198 SCRA 130 [1991]; People vs.
Rodrigueza, 205 SCRA 791 [1992].) ". . . When one voluntarily submits to a search or
consents to have it made of (sic) his person or premises, he is precluded from later
complaining thereof (Cooley, Constitutional Limitations, 8th ed., vol. I, page 631.) The right
to be secure from unreasonable search may, like every right, be waived and such waiver
may be made either expressly or impliedly." Since in the course of the valid search forty-
one (41) packages of drugs were found, it behooved the officers to seize the same; no
warrant was necessary for such seizure. Besides, when said packages were identified by
the prosecution witnesses and later on formally offered in evidence, the accused did not
raise any objection whatsoever.

DECISION

DAVIDE, JR. , J : p

Accused Conway B. Omaweng was originally indicted for the violation of Section 4, Article
II of Republic Act No. 6425, otherwise known as the Dangerous Drugs Act of 1972, as
amended, in a criminal complaint filed with the Municipal Trial Court of Bontoc, Mountain
Province on 12 September 1988. 1 Upon his failure to submit counter-affidavits despite
the granting of an extension of time to do so, the court declared that he had waived his
right to a preliminary investigation and, finding probable cause against the accused,
ordered the elevation of the case to the proper court. 2
On 14 November 1988, the Office of the Provincial Fiscal of Mountain Province filed an
Information charging the accused with the violation of Section 47 Article II of the
Dangerous Drugs Act of 1972, as amended. The accusatory portion thereof reads: Cdpr

"That on or about September 12, 1988, at Dantay, Bontoc, Mountain Province, and
within the jurisdiction of this Honorable Court, the above-named accused, without
being authorized by law, did then and there willfully, unlawfully and feloniously
dispatch in transit or transport in a Ford Fiera, owned and driven by him, 10 1/4
kilos of processed marijuana in powder form contained in al plastic bags of
different sizes which were placed in a travelling bag destained (sic) and intended
for delivery, disposition and sale in Sagada, Mountain Province, with full
knowledge that said processed marijuana is (sic) prohibited drug or from which
(sic) prohibited drug may be manufactured.
CONTRARY TO LAW." 3

The case was docketed as Criminal Case No. 713.

After his motion for reinvestigation was denied by the Provincial Fiscal, 4 the accused
entered a plea of not guilty during his arraignment on 20 June 1989.
During the trial on the merits, the prosecution presented four (4) witnesses. The accused
did not present any evidence other than portions of the Joint Clarificatory Sworn
Statement, dated 23 December 1988, of prosecution witnesses Joseph Layong and David
Fomocod.
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 On 21 March 1991, the trial court promulgated its Judgment 5 convicting the accused of
the crime of transporting prohibited drugs penalized under Section 4, Article II of R.A. No.
6425, as amended. The dispositive portion of the decision reads:
"WHEREFORE, judgment is hereby rendered imposing upon the accused herein the
penalty of life imprisonment and a fine of Twenty Five Thousand Pesos.

Pursuant to Sec. 20, Art. IV of the aforecited special law, the drugs subject of the
crime are ordered confiscated and forfeited in favor of the Government.
Accordingly, it is further directed that such drugs so confiscated and forfeited be
destroyed without delay per existing rules and regulations on the matter.

Costs against the accused.

SO ORDERED." 6

Hence, this appeal.

In the Appellant's Brief, accused imputes upon the trial court the commission of the
following errors.
"I
. . . IN CONVICTING THE ACCUSED DESPITE INSUFFICIENCY OF
EVIDENCE TO PROVE HIS GUILT BEYOND REASONABLE DOUBT.
II
. . . IN NOT CONSIDERING THE JOINT CLARIFICATORY STATEMENT
OF THE ARRESTING OFFICERS TO THE EFFECT THAT THE ACCUSED IS
NOT THE OWNER OF THE PROHIBITED DRUG SUBJECT OF THIS CASE.
III
. . . IN NOT RULING THAT THE CONTRABAND SUBJECT OF THE
INSTANT CASE IS INADMISSIBLE IN EVIDENCE FOR HAVING BEEN
OBTAINED IN VIOLATION OF THE CONSTITUTIONAL RIGHT OF THE
ACCUSED AGAINST UNREASONABLE SEARCH (sic) AND SEIZURE." 7

The appeal is without merit. The decision appealed from must be upheld.
After a careful review and evaluation of the evidence, We find to have been fully proven the
following facts as summarized by the Solicitor General in the Brief for the Appellee. 8
"In the morning of September 12, 1988, Joseph Layong, a PC constable with the
Mt. Province PC Command at Bontoc, Mt. Province proceeded with other PC
soldiers to Barrio Dantay, Bontoc and, per instruction of their officer, Capt. Eugene
Martin, put up a checkpoint at the junction of the roads, one going to Sagada and
the other to Bontoc (TSN, November 9, 1989, pp. 3-4). They stopped and checked
all vehicles that went through the checkpoint (TSN, April 5, 1990, p. 12).

At about 9:15 A.M., Layong and his teammate, Constable David Osborne
Famocod (sic), saw and flagged down a cream-colored Ford Fiera bearing Plate
No. ABT-634 coming from the Bontoc Poblacion and headed towards Baguio
(TSN, November 9, 1989, pp. 4-5, 8). The vehicle was driven by appellant and had
no passengers (TSN, November 9, 1989, pp. 4-5).

Layong and his companions asked permission to inspect the vehicle and
appellant acceded to the request. (TSN, November 9, 1989, pp. 4-5). When they
peered into the rear of the vehicle, they saw a travelling bag which was partially
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 covered by the rim of a spare tire under the passenger seat on the right side of the
vehicle (TSN, November 9, 1989, pp. 6, 10, 11). LibLex

Layong and his companions asked permission to see the contents of the bag
(TSN, November 9, 1989, p. 6). Appellant consented to the request but told them
that it only contained some clothes (TSN, November 9, 1989, p. 6). When Layong
opened the bag, he found that it contained forty-one (41) plastic packets of
different sizes containing pulverized substances (TSN, November 9, 1989, pp. 7,
9).
Layong gave a packet to his team leader, constable David Osborne Fomocod,
who, after sniffing the stuff concluded that it was marijuana (TSN, November 9,
1989, p. 16).

The PC constables, together with appellant, boarded the latter's Ford Fiera and
proceeded to the Bontoc poblacion to report the incident to the PC Headquarters
(TSN, November 9, 1989, pp. 7-8) The prohibited drugs were surrendered to the
evidence custodian, Sgt. Angel Pokling (TSN, November 9, 1989, pp. 7-8).

Major Carlos Figueroa, a PC Forensic Chemist at Camp Dangwa, La Trinidad,

Benguet, who has conducted more than 2500 professional examinations of
marijuana, shabu and cocaine samples, conducted two chemistry examinations
of the substance contained in the plastic packets taken from appellant and found
them to be positive for hashish or marijuana (TSN, October 24, 1990, pp. 3, 5-81)."
9

Anent the first assigned error, the accused contends that the prosecution failed to prove
that he is the owner of the marijuana found inside the travelling bag which he had in his
vehicle, a Ford Fiera. Proof of ownership is immaterial. Accused was prosecuted for the
dispatching in transit or transporting of prohibited drugs pursuant to Section 4, Article II of
R.A. No. 6425, as amended. This section does not require that for one to be liable for
participating in any of the proscribed transactions enumerated therein, he must be the
owner of the prohibited drug. It simply reads:
"SEC. 4. Sale, Administration, Delivery, Distribution and Transportation of
Prohibited 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, administer, deliver, give away to
another, distribute, dispatch in transit or transport any prohibited drug, or shall act
as a broker in any of such transactions. If the victim of the offense is a minor, or
should a prohibited drug involved in any offense under this Section be the
proximate cause of the death of a victim thereof, the maximum penalty herein
provided shall be imposed."

This section penalizes the pusher, who need not be the owner of the prohibited drug. The
law defines pusher as "any person who sells, administers, delivers, or gives away to
another, on any terms whatsoever, or distributes, dispatches in transit or transports any
dangerous drug or who acts as a broker in any of such transactions, in violation of this Act.
10

In People vs. Alfonso, 1 1 where the accused was charged with the unlawful transportation
of marijuana under the aforesaid Section 4, this Court ruled that ownership is not a basic
issue. LexLib

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 The facts, as proven by the prosecution, establish beyond cavil that the accused was
caught in the act of transporting the prohibited drug or, in other words, in flagrante delicto.
That he knew fully well what he was doing is shown beyond moral certainty by the
following circumstances: (a) the prohibited drug was found in a travelling bag, (b) he is the
owner of the said bag, (c) he concealed the bag behind a spare tire, (d) he was travelling
alone, and (e) the Ford Fiera in which he loaded the bag was under his absolute control,
pursuant to Section 4, Rule 133 of the Rules of Court (on circumstantial evidence), the
combination of all these circumstances is such as to produce a conviction beyond
reasonable doubt. Such circumstances, unrebutted by strong and convincing evidence by
the accused, even gave rise to the presumption that he is the owner of the prohibited drug.
12

The second assigned error is devoid of merit. The declaration in the joint clarificatory
sworn statement executed by the apprehending officers, that the marijuana subject of the
case was surreptitiously placed by an unknown person in the bag of the accused, is not
supported by evidence. Said sworn statement cannot be used as a basis for exoneration
because the very same officers who signed the same reiterated on the witness stand their
statements in their original affidavit implicating the accused, both the criminal complaint
before the Municipal Trial Court of Lontoc and the information in this case were based on
this original affidavit. No probative value could be assigned to it not only because it was
procured by the defense under questionable circumstances, but also because the affiants
therein merely expressed their personal opinion. The trial court's correct exposition on this
point, to which nothing more may be added, deserves to be quoted, thus:
"From the portions of the 'Joint Clarificatory Sworn Statement- of prosecution
witnesses Layong and Fomocod cited (Exhs. "I" to "I-C"; p 155, Record), the
defense would want this Court to draw the inference that the accused Conway
Omaweng is innocent as confirmed by no less than the persons who
apprehended the suspect in flagranti (sic). In other words, that the said accused is
not the owner of the contraband confiscated but someone else; that to (sic)
mysterious individual placed the prohibited articles inside the travelling bag of the
accused without the knowledge and consent of the latter; and that the identity of
this shadowy third person is known by the PC/INP investigators. The isolated
declarations, albeit under oath are much too asinine to be true and do not affect
the credibilities of the witnesses — affiants and the truth of their affirmations on
the stand. As gleaned from parts of the record of the reinvestigation of this case
conducted by the Provincial Fiscal (Exhs "G" and "D"; pp. 158 and 161, Record), it
appears that Layong and Fomocod were prevailed upon to affix their signatures
to (sic) the document styled as 'Joint Clarificatory Sworn Statement' by interested
persons in a vain ploy to extricate the accused from the morass he got himself
into. Testifying in open court, the same witnesses maintained the tenor of their
original affidavit supporting the filing of the criminal complaint in the lower court
(Exh. "C"; p. 2, Record) No additional information was elicited from said witnesses
during their examination from which it can reasonably be deduced that a third
person instead of the accused is the culprit and that the suspect is being framed-
up for a crime he did not commit. Nonetheless, granting arguendo that the
declarations of Layong and Fomocod now the bone of contention, are on the
level, the same are but mere opinions and conclusions without bases. Any which
way, to believe that any person in his right mind owning several kilos of hot
hashish worth tens of thousands of pesos would simply stash it away in the
travelling bag of someone he has no previous agreement with is a mockery of
common sense. And to think further that the PC/INP agents know of such fact yet
they kept the vital information under 'confidential Status' (whatever that means in
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 police parlance) while an innocent person is being prosecuted and practically in
the shadow of the gallows for the offense would be stretching human credulity to
the snapping point. By and large, the fact remains as the circumstances logically
indicate that the accused Conway Omaweng has knowledge of the existence of
the contraband inside his vehicle and he was caught red-handed transporting the
hot stuff." 1 3

The third assignment of error hardly deserves any consideration. Accused was not
subjected to any search which may be stigmatized as a violation of his Constitutional right
against unreasonable searches and seizures. 1 4 If one had been made, this Court would be
the first to condemn it "as the protection of the citizen and the maintenance of his
constitutional rights is one of the highest duties and privileges of the Court." 1 5 He willingly
gave prior consent to the search and voluntarily agreed to have it conducted on his vehicle
and travelling bag. Prosecution witness Joseph Layong testified thus: llcd

"PROSECUTOR AYOCHOK:
Q When you and David Fomocod saw the travelling bag, what did you do?

A When we saw that travelling bag, we asked the driver if we could see the
contents.

Q And what did or what was the reply of the driver, if there was any?
A He said 'you can see the contents but those are only clothings (sic).'
Q When he said that, what did you do?
A We asked him if we could open and see it.
Q When you said that, what did he tell you?

A He said you can see it.

Q And when he said 'you can see and open it,' what did you do?
A When I went inside and opened the bag, I saw that it was not clothings (sic)
that was contained in the bag.
Q And when you saw that it was not clothings (sic), what did you do?
A When I saw that the contents were not clothes, I took some of the contents
and showed it to my companion Fomocod and when Fomocod smelled it,
he said it was marijuana." 1 6

This testimony was not dented on cross-examination or rebutted by the accused for he
chose not to testify on his own behalf.
Thus, the accused waived his right against unreasonable searches and seizures As this
Court stated in People vs. Malasugui: 1 7
". . . When one voluntarily submits to a search or consents to have it made of (sic)
his person or premises, he is precluded from later complaining thereof (Cooley,
Constitutional Limitations, 8th ed., vol. I, page 631.) The right to be secure from
unreasonable search may, like every right, be waived and such waiver may be
made either expressly or impliedly."

Since in the course of the valid search forty-one (41) packages of drugs were found, it
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 behooved the officers to seize the same; no warrant was necessary for such seizure.
Besides, when said packages were identified by the prosecution witnesses and later on
formally offered in evidence, the accused did not raise any objection whatsoever. Thus, in
the accused's Comments And/Or Objections To Offer of Evidence, 1 8 We merely find the
following: LLphil

"EXHIBIT COMMENTS AND/OR OBJECTIONS

"A" The bag was not positively identified to
be the same bag allegedly found inside
the vehicle driven by the accused. The

arresting officers failed to show any

identifying marks; thug, said bag is an
irrelevant evidence not admissible in court;
"A-1" to "A-40" Objected to also as irrelevant as the 40
bags now being offered are not the same

bags alleged in the information which is 41

bags. The prosecution failed to proved (sic)
beyond reasonable doubt that Exhibit "A-1"
to "A-40" are the same bags allegedly taken

from inside Exhibit "A" because what is

supposed to be inside the bag are 41 bags
and not 40 bags."
xxx xxx xxx

WHEREFORE, the decision of Branch 36 of the Regional Trial Court of Bontoc, Mountain
Province of 21 March 1991 in Criminal Case No. 713 finding the accused CONWAY B.
OMAWENG guilty beyond reasonable doubt of the crime charged, is hereby AFFIRMED.
Costs against the accused.
SO ORDERED.
Gutierrez, Jr., Bidin and Romero, JJ ., concur.
Feliciano, J ., is on leave.
Footnotes

1. Original Records, 1.

2. Id., 28-29.
3. Original Records, 30.
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 4. Id., 163.
5. Id., 355-361.

6. Original Records, 361.

7. Rollo, 149.
8. Rollo, 183, et seq.
9. Brief for the Appellee, 4-6.
10. Section 2 (m), R.A. No. 6425, as amended.

11. 186 SCRA 576 [1990].

12. Section 3 (j), Rule 131, Rules of Court.
13. Original Records, 359-360; Rollo, 116-117.
14. Section 2, Article III, 1987 Constitution.

15. Rodriguez vs. Villamiel, 65 Phil. 230 [1937].

16. TSN, 9 November 1989, 6-7.
17. 63 Phil. 221, 226 [1936]. See also Vda. de Garcia vs. Locsin, 65 Phil. 689 [1938]; People
vs. Donato, 198 SCRA 130 [1991]; People vs. Rodriguez, 205 SCRA 791 [1992].
18. Original Records, 344.

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