SECOND DIVISION

G.R. No. 95902 February 4, 1992

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
DON RODRIGUEZA, accused-appellant.

The Solicitor General for plaintiff-appellee.

Public Attorney's Office for accused-appellant.

REGALADO, J.:

On appeal before us is the decision of the Regional Trial Court of Legaspi City,
Branch 10, finding accused-appellant Don Rodrigueza guilty beyond reasonable
doubt of violating Section 4, Article II of the Dangerous Drugs Act of 1972
(Republic Act No. 6425, as amended) and sentencing him to suffer the penalty of
life imprisonment and to pay a fine of P20,000.00 and costs.1

However, the Solicitor General, deviating from his conventional stance in the
prosecution of criminal cases, recommends the acquittal of appellant for the
reasons stated in his Manifestation for Acquittal (In Lieu of Appellee's Brief) filed
with the Court. We have reviewed and analyzed the testimonial and documentary
evidence in this case and we find said recommendation to be well taken.

The information, dated July 10, 1987, charges Don Rodrigueza and his co-accused,
Samuel Segovia and Antonio Lonceras, with allegedly having in their custody and
possession 100 grams of marijuana leaves and for selling, in a buy-bust operation,
said 100 grams of dried marijuana leaves for a consideration of P200.00. 2

During the arraignment, all the accused pleaded not guilty to the charge against
them. At the trial, the prosecution and the defense presented several witnesses after
which the court a quo rendered judgment acquitting Samuel Segovia and Antonio
Lonceras but convicting and penalizing herein appellant as hereinbefore stated.
The following facts are culled from the decision of the trial court and the evidence
presented by the prosecution.

At around 5:00 o'clock in the afternoon of July 1, 1987, CIC Ciriaco Taduran was
in their headquarters at the Office of the Narcotics Regional Unit at Camp Bagong
Ibalon, Legaspi City, together with S/Sgt. Elpidio Molinawe, CIC Leonardo B.
Galutan and their commanding officer, Major Crisostomo M. Zeidem, when a
confidential informer arrived and told them that there was an ongoing illegal traffic
of prohibited drugs in Tagas, Daraga, Albay. Major Zeidem formed a team to
conduct a buy-bust operation, which team was given P200.00 in different
denominations to buy marijuana. These bills were treated with ultraviolet powder
at the Philippine Constabulary Crime Laboratory (PCCL). Sgt. Molinawe gave the
money to Taduran who acted as the poseur buyer. He was told to look for a certain
Don, the alleged seller of prohibited drugs. Taduran went to Tagas alone and,
while along the road, he met Samuel Segovia. He asked Segovia where be could
find Don and where he could buy marijuana. Segovia left for a while and when be
returned, he was accompanied by a man who was later on introduced to him as
Don, herein appellant. 3

After agreeing on the price of P200.00 for 100 grams of marijuana, Don halted a
passing tricycle driven by Antonio Lonceras. He boarded it and left Taduran and
Segovia. When he came back, Don gave Taduran "a certain object wrapped in a
plastic" which was later identified as marijuana, and received payment therefor.
Thereafter, Taduran returned to the headquarters and made a report regarding his
said purchase of marijuana. 4

Based on that information, Major Zeidem ordered a team to conduct an operation

to apprehend the suspects. In the evening of the same date, CIC Galutan and S/Sgt.
Molinawe proceeded to Regidor Street, Daraga, Albay and arrested appellant,
Antonio Lonceras and Samuel Segovia. The constables were not, however, armed
with a warrant of arrest when they apprehended the three accused. The arrestees
were brought to the headquarters for investigation. 5

Thereafter, agents of the Narcotics Command (NARCOM) conducted a raid in the

house of Jovencio Rodrigueza, father of appellant. Taduran did not go with them.
During the raid, they were able to confiscate dried marijuana leaves and a plastic
syringe, among others. The search, however, was not authorized by any search
warrant. 6
The next day, July 2, 1987, Jovencio Rodrigueza was released from detention but
appellant was detained. An affidavit, allegedly taken from and executed by him,
was sworn to by him before the assistant city prosecutor. Appellant had no counsel
when his sworn statement was taken during that custodial investigation. The
arrestees were also examined by personnel of the PCCL and were found positive
for ultraviolet powder. 7

The three accused presented different versions of their alleged participations.

Samuel Segovia testified that he was in their house in the evening of July 1, 1987
listening to the radio. Later, he ate his merienda and then went out to buy cigarettes
from the store. While he was at the store, a jeep stopped behind him. Several
armed men alighted therefrom and ordered him to get inside the jeep. He refused
but he was forced to board the vehicle. He was even hit by the butt of a gun. 8

He was thereafter brought to Camp Bagong Ibalon where he was investigated and
was repeatedly asked regarding the whereabouts of Rodrigueza. He was
manhandled by the NARCOM agents and was detained while inside the camp. He
was then made to hold a P10.00 bill treated with ultraviolet powder. When he was
taken to the PCCL and examined he was found positive of the ultraviolet powder.
He was also made to sign some papers but he did not know what they were all
about. 9

Appellant, on the other hand, testified that on said date he was in the house of his
aunt in San Roque, Legaspi City. He stayed there overnight and did not leave the
place until the next day when his brother arrived and told him that their father was
taken by some military men the preceding night. Appellant went to Camp Bagong
Ibalon and arrived there at around 8:00 o'clock in the morning of July 2, 1987.
When he arrived, he was asked if he knew anything about the marijuana incident,
to which question he answered in the negative. Like Segovia, he was made to hold
a P10.00 bill and was brought to the crime laboratory for examination. From that
time on, he was not allowed to go home and was detained inside the camp. He was
also tortured in order to make him admit his complicity in the alleged sale of
marijuana. 10

In the assignment of errors in his brief, appellant contends that the trial court erred
in (1) admitting in evidence the sworn statement of appellant which was obtained
in violation of his constitutional rights; (2) convicting appellant of the crime
charged despite the fact that the 100 grams of dried marijuana leaves allegedly
bought from him were not properly identified; (3) convicting appellant of the crime
charged despite the fact that the evidence for the prosecution is weak and not
convincing; and (4) finding appellant guilty beyond reasonable doubt of selling or
at least acting as broker in the sale of the 100 grams of marijuana to CIC Taduran
late in the afternoon of July 1, 1987, despite the failure of the prosecution to prove
his guilt beyond reasonable doubt. 11

We rule for the appellant and approve the recommendation for his acquittal. In
disposing of this case, however, we feel that the issues raised by appellant should
properly be discussed seriatim.

1. A buy-bust operation is a form of entrapment employed by peace officers to trap

and catch a malefactor in flagrante delicto. 12 Applied to the case at bar, the term in
flagrante delicto requires that the suspected drug dealer must be caught redhanded
in the act of selling marijuana or any prohibited drug to a person acting or posing
as a buyer.

In the instant case, however, the procedure adopted by the NARCOM agents failed
to meet this qualification. Based on the very evidence of the prosecution, after the
alleged consummation of the sale of dried marijuana leaves, CIC Taduran
immediately released appellant Rodrigueza instead of arresting and taking him into
his custody. This act of CIC Taduran, assuming arguendo that the supposed sale of
marijuana did take place, is decidedly contrary to the natural course of things and
inconsistent with the aforestated purpose of a buy-bust operation. It is rather absurd
on his part to let appellant escape without having been subjected to the sanctions
imposed by law. It is, in fact, a dereliction of duty by an agent of the law.

2. The admissibility of the sworn statement allegedly executed by appellant was

squarely placed in issue and, as correctly pointed out by the defense, said sworn
statement is inadmissible in evidence against appellant.

We have once again to reiterate and emphasize that Article III of the 1987
Constitution provides:

Sec. 12 (1). Any person under investigation for the commission of an

offense shall have the right to be informed of his right to remain silent
and to have a competent and independent counsel preferably of his
own choice. If the person cannot afford the services of counsel, he
must be provided with one. These rights cannot be waived except in
writing and in the presence of counsel.

xxx xxx xxx

 (3) Any confession or admission obtained in violation of this or
section 17 hereof shall be inadmissible in evidence against him.

An examination of said sworn statement shows that appellant was informed of his
constitutional right to remain silent and to be assisted by counsel during custodial
examination. He was also asked if he was waiving his right to be assisted by
counsel and he answered in the affirmative. However, while the rights of a person
under custodial investigation may be waived, such waiver must be made not only
voluntarily, knowingly and intelligently but also in the presence and with the
assistance of counsel. 13 In the present case, the waiver made by appellant being
without the assistance of counsel, this omission alone is sufficient to invalidate said
sworn statement. 14

3. Corollary to this, we take cognizance of the error of the trial court in admitting
in evidence against appellant the articles allegedly confiscated during the raid
conducted in the house of Jovencio Rodrigueza.

As provided in the present Constitution, a search, to be valid, must generally be

authorized by a search warrant duly issued by the proper government
authority. 15 True, in some instances, this Court has allowed government authorities
to conduct searches and seizures even without a search warrant. Thus, when the
owner of the premises waives his right against such incursion; 16 when the search is
incidental to a lawful arrest; 17 when it is made on vessels and aircraft for violation
of customs laws; 18 when it is made on automobiles for the purpose of preventing
violations of smuggling or immigration laws; 19 when it involves prohibited articles
in plain view; 20 or in cases of inspection of buildings and other premises for the
enforcement of fire, sanitary and building regulations, 21 a search may be validly
made even without a search warrant.

In the case at bar, however, the raid conducted by the NARCOM agents in the
house of Jovencio Rodrigueza was not authorized by any search warrant. It does
not appear, either, that the situation falls under any of the aforementioned cases.
Hence, appellant's right against unreasonable search and seizure was clearly
violated. The NARCOM agents could not have justified their act by invoking the
urgency and necessity of the situation because the testimonies of the prosecution
witnesses reveal that the place had already been put under surveillance for quite
some time. Had it been their intention to conduct the raid, then they should,
because they easily could, have first secured a search warrant during that time.
4. The Court further notes the confusion and ambiguity in the identification of the
confiscated marijuana leaves and other prohibited drug paraphernalia presented as
evidence against appellant.

CIC Taduran, who acted as the poseur buyer, testified that appellant sold him 100
grams of dried marijuana leaves wrapped in a plastic bag. Surprisingly, and no
plausible explanation has been advanced therefor, what were submitted to and
examined by the PCCL and thereafter utilized as evidence against the appellant
were the following items:

One (1) red and white colored plastic bag containing the following:

Exh. "A"—Thirty (30) grams of suspected dried marijuana fruiting

tops contained inside a transparent plastic bag.

Exh. "B"— Fifty (50) grams of suspected dried marijuana leaves and
seeds contained inside a white colored plastic labelled "Robertson".

Exh. "C"— Four (4) aluminum foils each containing suspected dried
marijuana fruiting tops having a total weight of seven grams then
further wrapped with a piece of aluminum foil.

Exh. "D"— Five (5) small transparent plastic bags each containing
suspected dried marijuana fruiting tops having a total weight of
seventeen grams.

Exh. "E"— One plastic syringe. 22

Evidently, these prohibited articles were among those confiscated during the so-
called follow-up raid in the house of Jovencio Rodrigueza. The unanswered
question then arises as to the identity of the marijuana leaves that became the basis
of appellant's conviction. 23 In People vs. Rubio, 24 this Court had the occasion to
rule that the plastic bag and the dried marijuana leaves contained therein constitute
the corpus delicti of the crime. As such, the existence thereof must be proved with
certainty and conclusiveness. Failure to do so would be fatal to the cause of the
prosecution.

5. It is accepted that, as a rule, minor inconsistencies in the testimony of a witness

will not affect his credibility. It even enhances such credibility because it only
shows that he has not been rehearsed. 25 However, when the inconsistencies pertain
to material and crucial points, the same detract from his overall credibility.
The exception, rather than the rule, applies in the case at bar. As correctly pointed
out by the Solicitor General, the testimonies of the prosecution witnesses are
tainted with serious flaws and material inconsistencies rendering the same
incredible. 26

CIC Taduran, in his testimony, said that they had already been conducting
surveillance of the place where the buy-bust operation was to take place. It turned
out, however, that he did not even know the exact place and the identity of the
person from whom he was to buy marijuana leaves. Thus:

FISCAL TOLOSA

Q What place in Tagas were you able to go (to)?

WITNESS

A I am not actually familiar in (sic) that place, in Tagas,

although we occasionally passed there.

Q Now, upon your arrival in Tagas, what did you do that

afternoon?

A I waited for the suspect because previously, we have

already been conducted (sic) surveylance (sic) in the
vicinity.

Q Upon arrival in Tagas, were you able to see the

suspect?

A By the road, sir.

Q Who was the first person did you see (sic) when you
arrived at Tagas?

A The first person whom I saw is Samuel Segovia.

Q Were you able to talk with this Samuel Segovia?

A According to him, we could get some. 27

The same findings go for the testimony of witness Galutan. In his direct
examination, he declared that they arrested the three accused all at the same time
on the fateful night of July 1, 1987. But, in his cross-examination and as
corroborated by the Joint Affidavit of Arrest 28 submitted by him and Molinawe, it
appeared that Lonceras and Segovia were arrested on different times and that
appellant Don Rodrigueza was not among those who were arrested. Instead, it was
Jovencio Rodrigueza, Don's father, who was picked up at a much later time.

With said inconsistencies in sharp focus, we are constrained to give more

credibility to the testimony of appellant Rodrigueza. While it is true that appellant's
defense amounts to an alibi, and as such is the weakest defense in a criminal
prosecution, there are, nonetheless, some evidentiary aspects pointing to the truth
in his testimony. Firstly, the Joint Affidavit of Arrest corroborates his testimony
that he was not among those who were arrested on the night of July 1, 1987. His
co-accused Segovia also testified that appellant Rodrigueza was not with them
when they were apprehended by the NARCOM agents.

Secondly, the apparent motive of the NARCOM agents in prosecuting the accused
was also revealed during the trial of the case. Rebuttal witnesses Gracita Bahillo,
sister of appellant, and Hospicio Segovia, father of Samuel Segovia, testified that
Sgt. Molinawe, who has since been reportedly dismissed from the service, asked
for P10,000.00 from each of them in exchange for the liberty of the
accused. 29 This allegation was never refuted by the prosecution. Hence, the rule
laid down by this Court that the statements of prosecution witnesses are entitled to
full faith and credit 30 has no application in the case at bar.

Finally, the Court has repeatedly ruled that to sustain the conviction of the accused,
the prosecution must rely on the strength of its own evidence and not on the
weakness of the defense. 31 As clearly shown by the evidence, the prosecution has
failed to establish its cause. It has not overcome the presumption of innocence
accorded to appellant. This being the case, appellant should not be allowed to
suffer for unwarranted and imaginary imputations against him.

WHEREFORE, the judgment of conviction of the court below is hereby

REVERSED and SET ASIDE and accused-appellant Don Rodrigueza is hereby
ACQUITTED of the crime charged. It is hereby ordered that he be immediately
released from custody unless he is otherwise detained for some other lawful cause.

SO ORDERED.

Melencio-Herrera, Paras, Padilla and Nocon, JJ., concur.