Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 109250 September 5, 1997

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, 

vs.
NORIEL LACERNA y CORDERO & MARLON LACERNA y
ARANADOR, accused.

MARLON LACERNA y ARANADOR, accused-appellant.

PANGANIBAN, J.:

The unrelenting and pervading war against illegal drugs has absorbed the
attention of all branches of government, both national and local, as well as
media, parents, educators, churches and the public at large. This case is one
more intrepid battle in such all-out war. Herein appellant seeks acquittal on
the ground that his acts did not constitute the crime of "giving away prohibited
drugs" penalized by Section 4 of Republic Act No. 6425, as amended (The
Dangerous Drugs Act). Nonetheless, he cannot escape the law because the very
same deeds, which appellant admits to have performed, show his culpability
for "illegal possession of prohibited drugs" — penalized in Section 8 of R.A.
6425, as amended — which is necessarily included in the crime charged in the
Information.

Statement of the Case

This ruling is explained by the Court as it resolves this appeal from the
Decision,1 dated February 24, 1993, of the Regional Trial Court of Manila,
Branch 16,2 convicting Appellant Marlon Lacerna y Aranador "of violation of
Section 4 of Republic Act No. 6425, as amended . . . ."

Asst. City Prosecutor of Manila Juan O. Bermejo, Jr. charged appellant and
Noriel Lacerna in an Information, 3 dated September 16, 1992, which reads as
follows:4

The undersigned accuses NORIEL LACERNA Y CORDERO and

MARLON LACERNA Y ARANADOR of a violation of Section 4 Art. II,
in relation to Section 21, Art. IV of Republic Act 6425, as amended
by Presidential Decree No. 1675, . . .

That on or about September 12, 1992, in the City of Manila,

Philippines, the said accused, not being authorized by law to sell,
deliver or give away to another or distribute any prohibited drug,
did then and there wilfully, unlawfully and jointly sell, deliver or
give away to another the following, to wit:

Eighteen (18) blocks of marijuana

 flowering tops — weight — 18.235 kilograms

which is a prohibited drug.

When the case was called for arraignment on October 7, 1992, appellant and
his co-accused appeared without counsel but they alleged that they had
engaged the services of a certain Atty. Kangleon. Thus, the trial court
provisionally appointed Atty. Rodolfo P. Libatique of the Public Attorney's Office
as counsel de oficio, in case Atty. Kangleon did not appear for the arraignment
on October 28, 1992.5 Because the alleged counsel de parte failed to show up
during the arraignment on that date, Atty. Libatique assisted the accused who
pleaded "not guilty."6

After trial on the merits, the court a quo promulgated the assailed Decision, the
dispositive portion of which reads:7

WHEREFORE, PREMISES CONSIDERED, judgment is hereby

rendered:

I. The guilt of the accused Marlon Lacerna having been established

beyond reasonable doubt for the crime of violation of Section 4 of
RA 6425, as amended, he is found guilty of the same, sentencing
him to life imprisonment and to pay a fine of P20,000. With costs.

II. The guilt for the crime charged of accused Noriel Lacerna not
having been established beyond reasonable doubt he is hereby
ACQUITTED. The warden of the Manila City Jail is ordered to
release his person, unless held on other charges.

The evidence seized in this case is to remain in the custody of the

NBI Director as Drugs Custodian of the Dangerous Drugs Board.
(RA 425, Sec. 36; Supreme Court Circular No. 9 dated July 18,
1973) to be properly disposed of after the final disposition of this
case.

Hence, only Marlon Lacerna (his co-accused having been acquitted) interposed
this appeal direct to the Supreme Court in view of the life penalty imposed. 8

The Facts

Version of the Prosecution

The prosecution presented the following witnesses: PO3 Carlito P. Valenzuela,

Forensic Chemist Aida A. Pascual, and PO3 Rafael Melencio. Their testimonies
are summarized by the Solicitor General in the Appellee's Brief as follows: 9

On September 12, 1992, Police Officer 3 (PO3) Carlito P.

Valenzuela, a member of the Mobile Patrol Division of the Western
Police District (WPD), was assigned to man the checkpoint and
patrol the area somewhere along the sidestreets of Radial Road
near Moriones Street. The assignment to monitor strategic places
in the city and barangays of Manila was a direct order from
General Nazareno. Thus, he and his companion PO3 Angelito
Camero went about cruising the area in their Mobile Patrolcar,
with PO3 Valenzuela at the helm. At about 2:00 p.m., appellant
and co-accused, who were aboard a taxicab, passed by PO3
Valenzuela's place of assignment, which was then heavy with
traffic, looking suspicious (t.s.n., PO3 Valenzuela, Nov. 11, 1992,
pp. 3-4; Nov. 20, 1992, pp. 2-7).

Appellant was seated beside the taxi driver while co-accused was
seated at the left back seat of the taxi. When PO3 Valenzuela
looked at the occupants of said taxi, the latter bowed their heads
and slouched, refusing to look at him. Feeling that something was
amiss, PO3 Valenzuela and his companion stopped the vehicle,
signalling the driver to park by the side of the road (t.s.n., PO3
Valenzuela, Nov. 11, 1992, pp. 3-4).

PO3 Valenzuela and his co-police officer asked permission to

search the vehicle. As the occupants readily agreed, the police
officers went about searching the luggages in the vehicle which
consisted of a knapsack and a dark blue plastic grocery bag. They
asked appellant what the contents of the plastic bag were. Co-
accused Noriel Lacerna immediately answered that the bag
contained his vomit (t.s.n., PO3 Valenzuela, Nov. 11, 1992, pp. 4-
5).

Skeptical of what appellant and co-accused disclosed as regards

the contents of the plastic bag, PO3 Valenzuela made a hole in the
bag and peeped inside. He found several blocks wrapped in
newspaper, with the distinct smell of marijuana emanating from it.
PO3 Valenzuela opened one of the boxes and saw dried marijuana
leaves. He told appellant and co-accused that the contents of the
bag were marijuana, which co-accused readily affirmed. According
to both Lacernas, the bag was a "padala" of their uncle.
Specifically, they claimed that the bag was sent by their uncle, who
happened to be in Baguio City, for shipment to Iloilo (t.s.n., PO3
Valenzuela, Nov. 11, 1992, pp. 5-7; Nov. 20, 1992, pp. 8-10).

Appellant and co-accused, and the plastic bag containing blocks of

marijuana were brought by PO3 Valenzuela and PO3 Camero to
the WPD Headquarters on UN Avenue, Manila. 10 At about 9:00
p.m. of the same day, both appellant and co-accused were turned
over to PO3 Rafael Melencio for investigation while the blocks were
turned over to Lt. de Soto (tsn., PO3 Melencio, Dec. 11, 1992, pp.
3-5, 20).

Lt. de Soto counted the blocks of marijuana, numbering eighteen

(18) in all. Each block was wrapped in newspaper. After seeing
what the contents of the blocks were, the specimens (Exhs. "B" to
"B-19) were brought to the National Bureau of Investigation (NBI)
for further examination. 11 On the other hand, PO3 Melencio
investigated appellant and co-accused, informing them of their
constitutional rights during a custodial investigation. Thereafter,
he prepared the Affidavit of Apprehension and the Booking Sheet
and Arrest Report (Exhs. "A", "G", List of Exhibits, pp. 1, 15; tsn.,
PO3 Melencio, Dec. 11, 1992, pp. 15-24).

NBI Forensic Chemist Aida A. Pascual examined the eighteen (18)

confiscated blocks which tested positive of containing marijuana
(Exhs. "C", "F" to "F-9". List of Exhibits, pp. 2-14; tsn., A. Pascual,
Dec. 2, 1992, pp. 2-5).
 Version of the Defense

Appellant sets up the defense of denial, alleging that the blue plastic bag was
owned by his uncle who requested him to bring it to Iloilo. He also denied
knowing that it contained marijuana. In his Brief prepared by the Public
Attorney's Office, he narrated his version of the factual circumstances of this
case, as follows: 12

On September 12, 1992, at about 2:00 P.M., accused Marlon and

Noriel Lacerna were riding in a taxicab on their way to (the) North
Harbor to board a boat bound for Iloilo City. While plying along
Pier 15 their taxicab was flagged down by a patrol mobile car.
Accused Marlon Lacerna (appellant herein) was sitting in front
while accused Noriel Lacerna was at the back of the taxicab. The
accused carried two bags. One bag contained their personal
belongings and the other bag contained things which their uncle
Edwin Lacerna asked them to bring along. When their taxicab was
stopped, the two policemen in the Mobile car requested them that
they and their baggage be searched. Confident that they have not
done anything wrong, they allowed to be searched. During the
(search), the two accused were not allowed to alight from the
taxicab. The knapsack bag which contained their clothes was first
examined in front of them. The second bag was taken out from the
taxi and was checked at the back of the taxicab. The accused were
not able to see the checking when the policemen brought the
plastic bag at the back of the taxi. After checking, the policemen
told them it’s "positive". The accused were (asked) to alight and go
to the patrol car. They were brought to the WPD Headquarters at
United Nations. While there, they were brought inside a room.
They asked what wrong they have done but the policemen told
them to wait for Major Rival. At about 8:00 o'clock P.M., Major
Rival talked to them and asked them where the baggage came from
and they answered that it was given to them by their uncle. Then
Major Rival asked them to hold the marijuana and pictures were
taken. Later, they were brought inside the cell where they were
maltreated by the "Kabo". The "Kabo" forced them to admit
ownership of the marijuana. Noriel was boxed on the chest,
blindfolded and a plastic (bag) was placed on his neck and was
strangled. The mauling took place for about 30 minutes inside the
toilet. They refused to sign the Booking and Arrest Report but they
impressed their fingerprint on a white bond paper. They were
brought by Melencio to the Inquest Prosecutor at the City Hall. On
the way to the Inquest Prosecutor, Melencio told them to admit the
charge against them before the Inquest Fiscal, because if they will
deny, something (would happen) to them in the afternoon and
Melencio even uttered to them "vulva of your mother." Because
they were apprehensive and afraid, they admitted the charge before
the Inquest Fiscal.

(Appellant) Marlon Lacerna first met his uncle Edwin Lacerna at

Munoz Market. The second time was on September 11, 1992, when
his uncle went to his brother's house in Caloocan City and
requested him to bring his (uncle) personal belongings upon
learning that he (Marlon) is leaving for Iloilo city the next day,
September 12, 1992. He told his uncle to bring his personal
belongings either in the evening of that day or the following day at
 the (Grand) Central (Station), Monumento because he was going to
buy a ticket for Noriel as he intend (sic) to bring the latter with him
in going home to the province. His uncle already gave a ticket for
him. When he and Noriel (arrived) at the Grand Central at about
10:00 o'clock A.M. on September 12, 1992, their uncle was already
there. The latter placed the plastic bag besides their baggages.
They no longer inspected the contents of the bag as the same was
twisted and knotted on top. After getting a ticket from the office of
Don Sulpicio Lines, Marlon told Noriel to hail a taxi and then they
proceeded to the pier.

(Appellant's) purpose in going home to Iloilo was to get all the

requirements needed in his application to enter the Marines.

Accused Noriel just arrived in Manila three days before September

12, 1992 to look for a job and was staying with (appellant) at
Caloocan City. In the evening of September 11, 1992, (appellant)
requested him to come . . . with him to Iloilo and assured him that
he (would) be the one to pay for (Noriel's) fare. (TSN., January 6,
1993, pp. 3-23; January 8, 1993, pp. 2-12; January 11, 1993, pp.
2-18; January 20, 1992, pp. 2-6; January 22, 1993, pp. 2-14)

Ruling of the Trial Court

The court a quo observed that appellant could not be convicted of "delivering"

prohibited drugs because the Information did not allege that he knowingly
delivered marijuana. Neither could he be convicted of "transporting or
dispatching in transit" such prohibited drugs because these acts were not
alleged in the Information. The trial court mused further that appellant could
not be convicted of "selling" marijuana because the elements constituting this
crime were not proven. However, the Information charged appellant with "giving
away to another" prohibited drugs, a charge which was different from "delivery"
defined under Section 2 (f) 13 of RA. 6245, as amended. Citing People vs. Lo Ho
Wing, 14 the trial court ruled that "giving away" to another is akin to
"transporting" prohibited drugs, a malum prohibitum established by the mere
commission of said act. Thus, the court a quo convicted appellant of "giving
away" marijuana to another on the following premise: 15

It is not denied by (appellant) that he did give to his co-accused

cousin Noriel Lacerna the bundled 18 blocks of marijuana who
thereupon seated himself at the rear of the taxi with the
marijuana. His claim that he did not know the contents of the blue
plastic bag can hardly be believed because it is within judicial
notice that the marijuana contents readily emits a pungent odor so
characteristic of marijuana as what happened when the 18 blocks
were displayed in open Court. But as stated, guilty knowledge is
not required by the phrase "GIVE AWAY TO ANOTHER" (Sec. 4).
It was clearly established that he gave the stuff to another, that is,
to his co-accused Noriel Lacerna. The law does not distinguish as
to whether the word "another" refers to a third person other than a
co-accused or to a co-accused. The information, as in the case at
bar, need not allege guilty knowledge on the part of Marlon
Lacerna in "giving away" to another the marijuana. (Appellant)
should, therefor be found culpable for violating Section 4 of RA
6425, as amended, as charged for "giving away to another" the
marijuana.
Accused Noriel Lacerna, on the other hand, was acquitted for insufficiency of
evidence. The court a quo reasoned that "it cannot be said that he did 'give
away to another' the marijuana for it was (appellant) who gave the marijuana to
(Noriel)." Besides, unlike appellant who was urbanized in mannerism and
speech, Noriel Lacerna manifested probinsyano traits and was, thus, unlikely
to have dealt in prohibited drugs.

The Issues

Appellant objects to the trial court's Decision and assigns the following
errors: 16

The lower court erred in making a sweeping statement that the act
of "giving away to another(') is not defined under R.A. 6425
specifically requiring knowledge what intent one (sic) is passing is
a dangerous drug, as contradistinguished from the term "deliver;
where knowledge is required.

II

The lower court erred in not giving credence to the assertion of

accused-appellant that he had no knowledge that what were inside
the plastic bag given to him by his uncle were marijuana leaves.

III

The trial court erred in convicting accused-appellant despite failure

of the prosecution to prove his guilt beyond reasonable doubt.

The Court's Ruling

After meticulously reviewing the records of the case and taking into account
the alleged errors cited above and the argument adduced in support thereof,
the Court believes that the issues can be restated as follows:

(1) Was appellant's right against warrantless arrest and seizure violated?
(2) Was the trial court correct in convicting appellant for "giving away to
another" 18 blocks of marijuana? and
(3) May the appellant be held guilty of "illegal possession" of prohibited drugs?
The Court answers the first two questions in the negative and the third in the
affirmative.

First Issue: Appellant's Right Against

Warrantless Search and Seizure

The defense argues that the bricks of marijuana were inadmissible in evidence
as they were obtained through illegal search and seizure. Appellant alleges that
at the time of the search and seizure, he and his co-accused were not
committing any crime as they were merely riding a taxicab on the way to Pier
15, North Harbor in Manila. Hence, the precipitate arrest and seizure violated
their constitutional right and the marijuana seized constituted "fruits of the
poisonous tree."
The Solicitor General disagrees, contending that the search and seizure were
consistent with recent jurisprudential trend liberalizing warrantless search and
seizure where the culprits are riding moving vehicles, because a warrant
cannot be secured in time to apprehend the mobile target.

Both contentions are inaccurate. In the recent case of People vs.

Cuison, 17 this Court reiterated the principles governing arrest, search and
seizure. To summarize, let us begin with Section 2, Article III of the 1987
Constitution which provides:

Sec. 2. The right of the people to be secure in their persons,

houses, papers, and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall be
inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by the
judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly
describing the place to be searched and the persons or things to be
seized.

The Constitution further decrees that any evidence obtained in violation of the
provision mentioned is inadmissible in evidence:

Sec. 3. . . .

(2) Any evidence obtained in violation of . . . the preceding section

shall be inadmissible for any purpose in any proceeding .

However, not being absolute, this right is subject to legal and judicial
exceptions. The Rules of Court, Section 12 of Rule 126, provides that a person
lawfully arrested may be searched for "dangerous weapons or anything which
may be used as proof of the commission of an offense, without a search
warrant."

Five generally accepted exceptions to the rule against warrantless arrest have
also been judicially formulated as follows: (1) search incidental to a lawful
arrest, (2) search of moving vehicles, (3) seizure in plain view, (4) customs
searches, and (5) waiver by the accused themselves of their right against
unreasonable search and seizure. 18

Search and seizure relevant to moving vehicles are allowed in recognition of the
impracticability of securing a warrant under said circumstances. In such
cases, however, the search and seizure may be made only upon probable
cause, i.e., upon a belief, reasonably arising out of circumstances known to
the seizing officer, that an automobile or other vehicle contains an item, article
or object which by law is subject to seizure and destruction. 19 Military or police
checkpoints have also been declared to be not illegal per se as long as the
vehicle is neither searched nor its occupants subjected to body search, and the
inspection of the vehicle is merely visual. 20

In the case at bar, the taxicab occupied by appellant was validly stopped at the
police checkpoint by PO3 Valenzuela. It should be stressed as a caveat that the
search which is normally permissible in this instance is limited to routine
checks — visual inspection or flashing a light inside the car, without the
occupants being subjected to physical or body searches. A search of the
luggage inside the vehicle would require the existence of probable
cause. 21

In applicable earlier Decisions, this Court held that there was probable cause
in the following instances:

(a) where the distinctive odor of marijuana emanated from the plastic bag
carried by the accused; 22

(b) where an informer positively identified the accused who was observed to
have been acting suspiciously; 23 

(c) where the accused fled when accosted by policemen; 24 

(d) where the accused who were riding a jeepney were stopped and searched by
policemen who had earlier received confidential reports that said accused
would transport a large quantity of marijuana; 25 and

(e) where the moving vehicle was stopped and searched on the basis of
intelligence information and clandestine reports by a deep penetration agent or
spy — one who participated in the drug smuggling activities of the syndicate to
which the accused belonged — that said accused were bringing prohibited
drugs into the country. 26

In the case at hand, however, probable cause is not evident. First, the radio
communication from General Nazareno, which the arresting officers received
and which they were implementing at that time, concerned possible cases of
robbery and holdups in their area. 27 Second, Noriel Lacerna's suspicious
reactions of hiding his face and slouching in his seat when PO3 Valenzuela's
car passed alongside the taxicab might have annoyed the latter, or any other
law enforcer, and might have caused him to suspect that something was amiss.
But these bare acts do not constitute probable cause to justify the search
and seizure of appellant's person and baggage. Furthermore, the Claudio
ruling cannot be applied to this case because the marijuana was securely
packed inside an airtight plastic bag and no evidence, e.g., a distinctive
marijuana odor, was offered by the prosecution.

Nonetheless, we hold that appellant and his baggage were validly searched, not
because he was caught in flagrante delicto, but because he freely consented
to the search. True, appellant and his companion were stopped by PO3
Valenzuela on mere suspicion — not probable cause — that they were engaged
in a felonious enterprise. But Valenzuela expressly sought appellant's
permission for the search. Only after appellant agreed to have his person and
baggage checked did the actual search commence. It was his consent which
validated the search, waiver being a generally recognized exception to the rule
against warrantless search. 28

We are aware that this Court in Aniag, Jr. vs. COMELEC outlawed a search

based on an implied acquiescence, because such acquiescence was not consent
within the purview of the constitutional guaranty, but was merely passive
conformity to the search given under intimidating and coercive
circumstances. 29 In the case before us, however, appellant himself who was
"urbanized in mannerism and speech" expressly said that he was consenting to
the search as he allegedly had nothing to hide and had done nothing
wrong. 30 In his brief, appellant explicitly, even if awkwardly, reiterated this:
"Confident that they [the accused] have not done anything wrong, they allowed
to be searched." This declaration of appellant is a confirmation of his intelligent
and voluntary acquiescence to the search. The marijuana bricks were,
therefore, obtained legally through a valid search and seizure. They were
admissible in evidence; there was no poisonous tree to speak of.

Second Issue: Did Appellant

"Give Away" the Prohibited Drug?

The trial court justified the conviction of appellant for "giving away to another"
the prohibited drugs, because he literally handed to Noriel the plastic bag
containing marijuana, manually transferring the plastic bag from the front seat
to the backseat of the taxicab. We hold, however, that this is not the act
penalized by the Dangerous Drugs Act of 1972.

Section 4 of R.A. 6425, as amended, the violation of which is charged in the

Information, penalizes "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."

The phrase "give away" is commonly defined as "to make a present of; to
donate, or to make a sacrifice." 31 As used in a statute making it an offense to
"sell, give away, or otherwise dispose of" liquor without a license, this phrase
was construed as extending only to a disposition in ejusdem generis with a sale
or a gift. 32 It is synonymous with "to furnish," a broad term embracing the acts
of selling and giving away with the intent of transferring ownership. Selling by
itself is one distinct mode of committing the offense, and furnishing is intended
only to include other modes of affording something to others besides selling
it. 33

As distinguished from "delivery," which is an incident of sale, "giving away" is a

disposition other than a sale. It is, therefore, an act short of a sale which
involves no consideration. The prohibited drug becomes an item or
merchandise presented as a gift or premium (giveaway), where ownership is
transferred.

According to appellant, he gave the plastic bag and the knapsack to Noriel
because the latter got into the taxicab first and because there was more room
in the backseat than in the front. By handing the plastic bag to Noriel,
appellant cannot be punished for giving away marijuana as a gift or premium
to another. In Cuison, 34 this Court acquitted an accused of carrying and
transporting prohibited drugs because the act per se of handing over a
baggage at the airport cannot in any way be considered criminal.

Further, adopting the trial court's interpretation would lead to absurd

conclusions. Following the trial court's line of reasoning, Noriel should have
been held liable for the same crime when he gave the plastic bag to PO3
Valenzuela for the latter's inspection. And yet, the trial court inexplicably
acquitted him. Valenzuela would similarly be criminally culpable, as he
testified that he turned over the plastic bag to his superior, Lt. de Soto. It is a
well-settled rule that statutes should receive a sensible construction so as to
give effect to the legislative intention and to avoid an unjust or an absurd
conclusion. 35
 Third Issue:
May Appellant Be Convicted
of Illegal Possession?

Appellant's exoneration from giving away a prohibited drug to another under

Section 4 of the Dangerous Drugs Act does not, however, spell freedom from all
criminal liability. A conviction for illegal possession of prohibited drugs,
punishable under Section 8 of the same Act, is clearly evident.

In People vs. Tabar, 36 the Court convicted appellant of illegal possession under

Section 8 of said Act, although he was charged with "selling" marijuana under
Section 4, Article II thereof. 37

The prevailing doctrine is that possession of marijuana is absorbed in the

sale thereof, except where the seller is further apprehended in possession
of another quantity of the prohibited drugs not covered by or included in
the sale and which are probably intended for some future dealings or use
by the seller. 38

Possession is a necessary element in a prosecution for illegal sale of prohibited

drugs. It is indispensable that the prohibited drug subject of the sale be
identified and presented in court. 39 That the corpus delicti of illegal sale could
not be established without a showing that the accused possessed, sold and
delivered a prohibited drug clearly indicates that possession is an element of
the former. The same rule is applicable in cases of delivery of prohibited drugs
and giving them away to another.

In People vs. Manzano, 40 the Court identified the elements of illegal sale of

prohibited drugs, as follows:

(1) the accused sold and delivered a prohibited drug to another, and

(2) he knew that what he had sold and delivered was a dangerous drug.

Although it did not expressly state it, the Court stressed delivery, which
implies prior possession of the prohibited drugs. Sale of a prohibited drug can
never be proven without seizure and identification of the prohibited drug,
affirming that possession is a condition sine qua non.

It being established that illegal possession is an element of and is necessarily

included in the illegal sale of prohibited drugs, the Court will thus determine
appellant's culpability under Section 8.

From the penal provision under consideration and from the cases adjudicated,
the elements of illegal possession of prohibited drugs are as follows: (a) the
accused is in possession of an item or object which is identified to be a
prohibited drug; (b) such possession is not authorized by law; and (c) the
accused freely and consciously possessed the prohibited drug. 41

The evidence on record established beyond any doubt that appellant was in
possession of the plastic bag containing prohibited drugs without the requisite
authority. The NBI forensic chemist's identification of the marijuana or Indian
hemp was conclusive.

Appellant protests the trial court's finding that he knew that the plastic bag
contained marijuana. The lower court ruled that appellant could not have
possibly missed the pervasive pungent smell emitted by marijuana which was
duly noted when the marijuana was exhibited in open court. This reasoning,
however, is not supported by the evidence; the plastic bag, at the time of the
search and seizure, was "twisted and tied at the top," and thus airtight. PO3
Valenzuela did not even notice this pervasive characteristic smell until he
poked a hole in the plastic bag and unwrapped the newspaper covering one of
the marijuana bricks.

It is well-settled that criminal intent need not be proved in the prosecution of

acts mala prohibita. On grounds of public policy and compelled by necessity,
courts have always recognized the power of the legislature, as "the greater
master of things," to forbid certain acts in a limited class of cases and to make
their commission criminal without regard to the intent of the doer. 42 Such
legislative enactments are based on the experience that repressive measures
which depend for their efficiency upon proof of the dealer's knowledge or of his
intent are of little use and rarely accomplish their purposes; besides, the
prohibited act is so injurious to the public welfare that, regardless of the
person's intent, it is the crime itself. 43

This, however, does not lessen the prosecution's burden because it is still
required to show that the prohibited act was intentional. 44 Intent to commit
the crime and intent to perpetrate the act must be distinguished. A person may
not have consciously intended to commit a crime; but if he did intend to
commit an act, and that act is, by the very nature of things, the crime itself,
then he can be held liable for the malum prohibitum. 45 Intent to commit the
crime is not necessary, but intent to perpetrate the act prohibited by the
special law must be shown. In Bayona, the Court declared: 46

. . . The law which the defendant violated is a statutory provision,

and the intent with which he violated it is immaterial. . . . . The act
prohibited by the Election Law was complete. The intention to
intimidate the voters or to interfere otherwise with the election is
not made an essential element of the offense. Unless such an
offender actually makes use of his revolver, it would be extremely
difficult, if not impossible, to prove that he intended to intimidate
the voters.

The rule is that in acts mala in se there must be a criminal intent,

but in those mala prohibita it is sufficient if the prohibited act was
intentionally done. "Care must be exercised in distinguishing the
difference between the intent to commit the crime and the intent to
perpetrate the act. . . . (U.S. vs. Go Chico, 14 Phil., 128).

In illegal possession of prohibited drugs under Section 8 of the Dangerous

Drugs Act, the prosecution is not excused from proving that possession of the
prohibited act was done "freely and consciously," which is an essential element
of the crime.

In the case at bar, appellant was found to have in his possession a plastic bag
containing 18 kg of marijuana formed into 18 bricks which were separately
wrapped. His possession thereof gives rise to a disputable presumption under
Section 3[j], Rule 131 of the Rules of Court, 47 that he is the owner of such bag
and its contents. His bare, unpersuasive, feeble and uncorroborated disavowal
— that the plastic bag was allegedly given to him by his uncle without his
knowing the contents — amounts to a denial which by itself is insufficient to
overcome this presumption. 48 Besides, this defense, unless substantiated by
clear evidence, is invariably viewed with disfavor by courts, for it can just as
easily be concocted. Verily, it is a common and standard defense ploy in most
prosecutions involving dangerous drugs. 49

Further, the trial court did not give credence to appellant's denial. It is
axiomatic that appellate courts accord the highest respect to the assessment of
witnesses' credibility by the trial court, because the latter was in a better
position to observe their demeanor and deportment on the witness
stand. 50 The defense failed to present sufficient reasons showing that the trial
court had overlooked or misconstrued any evidence of substance that would
justify the reversal of its rejection of appellant's defense of denial.

Appellant is, therefore, liable for illegal possession of prohibited drugs under
Section 8 of the Dangerous Drugs Act. 51

WHEREFORE, the assailed Decision is hereby MODIFIED. Appellant is

CONVICTED of illegal possession of prohibited drugs under Section 8 of R.A.
6425; SENTENCED, in accordance with the Indeterminate Sentence Law, to
eight (8) years as minimum to twelve (12) years as maximum; and ORDERED
to pay a fine of twelve thousand pesos (P12,000.00). Costs de oficio.

SO ORDERED.

13 "(f) "Deliver" — refers to a person's act of knowingly passing a

dangerous drug to another personally or otherwise, and by any
means, with or without consideration;

18 People vs. Fernandez, 239 SCRA 174, 182-183, December 13,

1994. In the same case, J. Puno proposed a sixth exception:
exigent circumstances, as a catch-all category that would
encompass a number of diverse situations where some kind of
emergency makes obtaining a search warrant impractical, useless,
dangerous or unnecessary.

37 From the civil law point of view, however, sale is totally different

from possession. Article 1458 of the Civil Code defines sale as a
contract whereby "one of the contracting parties obligates himself
to transfer the ownership of and to deliver a determinate thing,
and the other to pay therefor a price certain in money or its
equivalent," while "possession is the holding of a thing or the
enjoyment of a right" as defined by Article 523 of the Civil Code.

41 David G. Nitafan, Annotations on the Dangerous Drugs Act,

1995 ed., p. 226. The adjudicated cases include those decided
under the old Opium Law which required that before an accused
can be convicted of illegal possession of opium, there must be a
demonstration of: (1) the occupancy or possession and (b) the
intent to possess opium.

47 Sec. 3. Disputable presumptions. — The following

presumptions are satisfactory if uncontradicted, but may be
contradicted and overcome by other evidence:

xxx xxx xxx

"(j) That a person found in possession of a thing taken in the doing
of a recent wrongful act is the taker and the doer of the whole act;
otherwise, the things which a person possesses, or exercises acts
of ownership over, are owned by him;".

51 Since the crime was committed on September 12, 1992, or prior

to the effectivity of RA. 7659, the applicable law is R.A. 6425, as
amended by B.P. 179, which provides that:

x x x           x x x          x x x

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, unless authorized by law, shall possess or use Indian
hemp