This is an appeal interposed by the accused George Agustin (accused for short) from the decision^[1] of the Regional Trial Court, First Judicial Region, Branch III, Baguio City, in Criminal Case No. 5283-R finding him guilty beyond reasonable doubt of violating Section 4, Article II of Republic Act No. 6425 otherwise known as the Dangerous Drugs Act and sentencing him to suffer the penalty of life imprisonment and to pay a fine of P20,000.00, with subsidiary imprisonment in case of insolvency.

On January 25, 1988, the Assistant City Fiscal filed an information charging the accused with violation of Section 4, Article II of the Dangerous Drugs Act committed as follows:

"That on or about the 20th day of December 1987, in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, and without any authority of law, did then and there willfully, unlawfully and feloniously sell and distribute dried marijuana leaves weighing about 90 grams, more or less contained in a plastic bag, for P300.00, Philippine Currency, knowing fully well that said leaves of marijuana is a prohibited drug, in violation of the above-mentioned provision of law.

CONTRARY TO LAW."^[2]

On March 4, 1988, the accused, assisted by his counsel, pleaded "not guilty" to the information.

After trial on the merits, the trial court rendered its decision finding the accused guilty beyond reasonable doubt of the crime charged, the dispositive portion of which reads:

"WHEREFORE, premises considered, it is this Court's findings that the prosecution has proven its case against the accused George Agustin beyond reasonable doubt, and therefore, adjudges him GUILTY as charged under Section 4 of Republic Act No. 6425, as amended, which reads:

"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. x x x x x x x."

Section 2(e) of the same Act reads:

"Dangerous Drugs" refers to either: (1) "Prohibited Drug", which includes x x x Indian hemp and its derivatives;"

Section 2(i) of the same Act reads:

"Indian hemp" otherwise known as "marujuana (sic); x x x."

(underscoring supplied).

The death penalty not being imposable at this time, the Court sentences the accused to life imprisonment and to pay a fine of twenty thousand pesos (P20,000.00), with subsidiary imprisonment in case of insolvency. With costs against the accused.

IT IS SO ORDERED."^[3]

From the judgment of conviction, the accused appealed, assigning the following as the errors^[4] allegedly committed by the trial court:

I

THE TRIAL COURT ERRED IN REJECTING THE DEFENSE OF THE ACCUSED THAT THE MARIJUANA AND P100-BILL RECOVERED BY THE NARCOM AGENTS WERE 'PLANTED' EVIDENCE.

II

THE TRIAL COURT ERRED IN NOT CONSIDERING AS INSTIGATION THE ALLEGED 'BUY-BUST' OPERATION CONDUCTED BY THE NARCOM AGENTS AGAINST THE ACCUSED.

III

THE TRIAL COURT ERRED IN NOT ACQUITTING THE ACCUSED ON THE GROUND OF THE ABSOLUTORY CAUSE OF INSTIGATION.

The Solicitor General summarized the People's version thus:

"At about noon of December 20, 1987, in Baguio City, Maj. Antonio Nañas, of the PC Narcotics Command of Region I, received information from a civilian informer that a certain George was involved in the illegal sale of marijuana. Forthwith, Maj. Nañas organized a team with him as leader and Sgts. Oscar Parajas and Godofredo Fider as members, to conduct a "buy-bust" operation and effect the arrest of the suspect. Sgt. Parajas was designated to act as poseur-buyer and was handed three (3) one hundred peso bills to be used as purchase money (tsn., August 18, 1988, pp. 3-6).

Sgt. Parajas and the civilian informer then rode on the former's motorcycle and proceeded to the Oro Theater along Magsaysay Avenue. Maj. Nañas and Sgt. Fider followed them not too far behind in a car. At the Oro Theather, the civilian informer led Sgt. Parajas to appellant George Agustin and introduced him (Sgt. Parajas) as an interested buyer of marijuana. Sgt. Parajas then conveyed his desire to buy P300.00 worth of marijuana and handed appellant the three (3) hundred peso bills (tsn., June 29, 1988, pp. 4-5).

Accepting the amount, appellant led Sgt. Parajas on board the latter's motorcycle towards San Carlos Heights. Maj. Nañas and Sgt. Fider inconspicuously followed them from behind. When Sgt. Parajas and appellant reached the junction of Naguilian Road and San Carlos Heights, appellant made Sgt. Parajas wait while he went up San Carlos Heights to get the marijuana (tsn., June 29, 1988, pp. 5-6).

After sometime, appellant came back bringing a pink plastic bag. Sgt. Parajas examined the bag and finding that it contained marijuana, rolled up the sleeves of his jacket, the pre-­arranged signal that the sale has been consummated. Whereupon, Sgt. Fider rushed in and introducing himself as a Narcom operative, arrested appellant (tsn., June 29, 1988, pp. 6-8; tsn., November 10, 1988, p. 11).

Sgt. Fider frisked appellant and found inside the latter's pocket one (1) one hundred peso bill, which was one of the three (3) one hundred peso bills that Sgt. Parajas gave appellant as purchase money. Sgt. Fider also found marijuana wrapped in an old newspaper (tsn., November 10, 1988, pp. 12-­14).

Appellant was then brought to the office of the PC Narcotics Command at the Agrix Building, Bokawkan Road, where he was investigated (tsn., August 18, 1988, p. 11).

Meanwhile, the seized marijuana were sent to the PC Crime Laboratory at Camp Dangwa for examination (tsn., November 10, 1988, p. 17). Marietta Bien, a forensic chemist, subjected the seized items to microscopic and chromatographic examination and found them to be positive for marijuana (tsn., August 18, 1988, pp. 18-20)."^[5]

Upon the other hand, the accused claimed that he was a victim of a frame-up. He testified that at around 8:30 in the morning of December 20, 1987, he was fixing a window in their house located at No. 282 Magsaysay Avenue, Baguio City when a stranger who introduced himself as Jun came looking for his neighbor, a certain Fred. Not finding Fred, Jun invited him and Rudy Salazar, another neighbor, to drink the Andy Player that Jun was carrying.^[6] When the bottle of Andy Player was about to be consumed, two friends and co-employees of Jun arrived. Jun requested them to buy some more drinks. These two newly arrived persons agreed and bought a case of Beer Grande and the group continued drinking. While the group was conversing, Jun asked him (the accused) if he knew somebody selling marijuana and he answered in the negative. This conversation was heard by his father who scolded him not to deal with such drugs because people dealing with the same are arrested.^[7] After sometime, Jun left the group and returned at about noon riding on a motorcycle and rejoined the group in its drinking bout. Jun again asked him where they can get marijuana and the latter answered that he really does not know anything about marijuana.^[8]

After consuming the drinks that have been bought, Jun requested the accused to accompany him in collecting from his (Jun's) debtors, to which he agreed. Before leaving, Jun handed to him a P100-bill with which to buy some more drinks upon their return.^[9] He and Jun then rode the latter's motorcycle and proceeded to Irisan where at a corner store Jun left him to watch over the motorcycle. After thirty (30) minutes, Jun came back and ordered some more drinks at the corner store. They then proceeded to Baguio City but were stopped at a checkpoint along Naguilian Road manned by PC soldiers. One of the soldiers, whom he came to know later as Sgt. Parajas, ordered that he and Jun be frisked. A companion of Sgt. Parajas frisked him and recovered from him the P100-bill previously given by Jun. Jun then handed the key of the motorcycle to Sgt. Parajas who unlocked the back compartment thereof and found a plastic bag containing marijuana. Upon questioning by Sgt. Parajas, Jun pointed to him as the owner of the plastic bag of marijuana.^[10] Sgt. Parajas then left on board the motorcycle of Jun. After a while, he came back with several companions in a car. The accused was ordered to board the car and was brought to the NARCOM office at the Agrix Building where he was investigated by Sgt. Fider.^[11]

The accused pleads instigation as a defense. He contends that the operation conducted by the NARCOM agents was not a 'buy-bust' or entrapment operation whereby there is simultaneous giving of the marked money by the poseur-buyer and handing over of the dangerous drugs by the 'pusher' or seller.^[12] Hence he should be absolved from criminal liability.

The distinction between entrapment and instigation was explained by this Court in the case of People v. Gatong-o,^[13] to wit:

"Entrapment is the employment of such ways and means for the purpose of trapping or capturing a lawbreaker. Oftentimes it is the only effective way of apprehending a criminal in the act of the commission of the offense. x x x A criminal is caught committing the act by ways and means devised by peace officers.

It must be distinguished from inducement or instigation wherein the criminal intent originates in the mind of the instigator and the accused is lured into the commission of the offense charged in order to prosecute him. The instigator practically induces the would-be accused into the Commission of the offense and himself becomes a co-principal. In entrapment ways and means are resorted to for the purpose of capturing the lawbreaker in flagrante delicto. In entrapment, the crime had already been committed while in instigation, it was not and could not have been committed were it not for the instigation by the peace officer."

In the case at bar, upon being informed by a civilian informant that a certain George was involved in the illegal sale of marijuana, a team was organized by Major Nañas to conduct a buy-bust operation with Sgt. Parajas as poseur‑buyer. Upon reaching the Oro Theater the civilian informant introduced Sgt. Parajas to the accused. Sgt. Parajas offered to buy P300.00 worth of marijuana. The accused accepted the P300.00 and told Sgt. Parajas that they proceed to San Carlos Heights were he will get the marijuana. Upon reaching the junction of Naguilian Road and San Carlos Heights, the accused told Sgt. Parajas to wait. After one and a half hours, the accused came back with a plastic bag of marijuana. At this point, Sgt. Parajas gave the pre-arranged signal for Sgt. Fider to move in.

From the evidence on record, it is apparent that Sgt. Parajas did not perform any act which in any way induced or influenced the accused to sell marijuana. The accused has been involved in the selling of marijuana and Sgt. Parajas only posed as a buyer. The idea to commit the crime did not originate from the NARCOM Agents who merely employed ways of trapping or catching the accused in flagrante delicto. Thus, the buy-bust operation was not tainted with infirmity which would absolve the accused from criminal liability.

Neither does the claim of the accused that since there was no simultaneous giving of the marked money by the poseur-buyer and the handing over of the dangerous drugs by the pusher or seller, the operation cannot be said to be a buy-bust or entrapment operation. We do not agree.

There is no rule which requires the simultaneous exchange of the marked money and the dangerous drug between the poseur-buyer and the pusher or seller. What is important is that the poseur-buyer received the marijuana from the accused.^[14] Records show that the accused knew where to get the supply of marijuana. The accused needed no prodding or instigation to commit the crime for which he was charged. It has been held that the mere act of selling or even acting as broker in the sale of marijuana and other prohibited drug consummates the crime.^[15]

Lastly, the accused contends that the marijuana and P100-bill recovered by the NARCOM Agents were 'planted' evidence. In other words, he was framed by the NARCOM agents.

The defense of frame-up can undoubtedly be fabricated with facility. It must, therefore, be proved by clear and convincing evidence. Like an alibi, it is a weak defense that is easy to concoct and is difficult to prove.^[16]

Records show that the accused and the NARCOM agents are strangers to each other. There is no reason for the NARCOM agents to induce the accused to violate the law. There is nothing in the records which could explain why the prosecution witnesses would fabricate their testimonies and implicate the accused in such a serious crime.^[17] Moreover, the NARCOM agents are law enforcers who are presumed to have performed their duty regularly.^[18]

We agree with the Solicitor General that the imposition of subsidiary imprisonment in case of failure to pay the fine is erroneous. Under Article 39(3) of the Revised Penal Code, when the principal penalty imposed is higher than prision correccional, no subsidiary imprisonment shall be imposed upon the culprit.

In the light of the foregoing, and under the plain language of the applicable law on the matter, the decision of the trial court is hereby affirmed subject to the modification that no subsidiary imprisonment is imposed in case of failure to pay fine.

SO ORDERED.

Feliciano, (Acting Chairman), Regalado, and Nocon, JJ., concur.
Narvasa, C.J., (Chairman), on official leave.

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^[1] Penned by Judge Marcelino F. Bautista, Jr.

^[2] Rollo, p. 6.

^[3] Rollo, p. 32; Decision, p. 5.

^[4] Appellants' Brief, p. 1.

^[5] Appellee's Brief, pp. 4-7.

^[6] TSN, January 31, 1989, pp. 6-8; TSN, December 12, 1989, pp. 3-6.

^[7] TSN, January 31, 1989, pp. 9-10; TSN, December 12, 1989, pp. 6-8.

^[8] TSN, January 31, 1990, pp. 10-11.

^[9] TSN, December 12, 1989, p. 10.

^[10] TSN, December 12, 1989, pp. 11-14.

^[11] TSN, ibid, pp. 16-17.

^[12] Appellant's Brief, p. 7.

^[13] 168 SCRA 716 (1988).

^[14] People vs. Fernandez, 186 SCRA 830 (1990).

^[15] People vs. Madarang, 147 SCRA 123 (1987).

^[16] People vs. Estevan, 186 SCRA 34 (1990).

^[17] People vs. Bautista, 147 SCRA 500 (1987).

^[18] People vs. Agapito, 154 SCRA 694 (1987).