Accused Crisanta Sanchez y Abatilo was convicted for violation of Section 4, Article II of Republic Act 6425. She was sentenced to suffer the penalty of life imprisonment, to pay a fine of twenty thousand pesos (P20,000.00) and to pay the costs.^[1]

The prosecution evidence established that on June 7, 1989, the Anti-Narcotics and Vice Division of Cagayan de Oro received a report from a confidential informant that a suspect has been peddling marijuana along Burgos Street and Abellanosa-del Pilar Streets, Cagayan de Oro. On the basis of this information, narcotics agents Jose Duallo and Eldegardo Gacuz were tasked to conduct a surveillance of the area to determine the identity of the person involved in the distribution of marijuana.^[2] Their surveillance activities, particularly the reports they gathered from the residents of the area, established that accused Crisanta Sanchez was engaged in the sale and distribution of marijuana.^[3]

To confirm these reports, two (2) test-buy operations were undertaken by the agents of the Anti-Narcotics and Vice Division. The first was conducted on June 29, 1989 at about six o'clock in the evening. Narcotics agents Duallo and Gacuz positioned themselves at about ten (10) to fifteen (15) meters from the residence of accused Sanchez. They instructed their decoy to go to Sanchez's house and act as the poseur-buyer. Accordingly, the agents saw their decoy purchase one (1) lid of marijuana from Sanchez for fifty (P50.00) pesos. The marijuana was then turned over to agent Gacuz who kept it in a cabinet in the Anti-Narcotics office.^[4]

Another test-buy operation was conducted by agents Duallo and Gacuz on August 8, 1989. At about six o'clock in the evening of that day, they again positioned themselves at approximately ten (10) to fifteen (15) meters away from accused Sanchez's house. Again, they saw their decoy purchase one (1) lid of marijuana (Exhibit "N") from the accused for fifty (P50.00) pesos at the latter's residence.^[5] This one (1) lid of marijuana was kept in the custody of agent Gacuz.^[6] The results of both test-buy operations were recorded by agent Gacuz in his logbook/record book (Exhibits "M" and "G").^[7]

Thereafter, agents Duallo and Gacuz returned to their office and executed a sworn statement detailing the result of their test-buy operations. Consequently, a team of narcotics agents headed by Sgt. Rico Cariño and Sgt. Velez, and composed of agents Duallo, Gacuz, Anthony Eblacas and Rebecca Ng applied for a search warrant on August 9, 1989 to get the bulk of marijuana from accused's house.^[8] The search warrant was duly issued by MTC Judge Downey Valdevilla on the same day.^[9]

Armed with a search warrant, the narcotics agents stopped by the house of barangay captain Samson Nagac at about one o'clock in the afternoon. They requested Nagac to accompany them to accused's house for the service of the warrant.^[10]

The narcotics agents arrived at accused's house at around three o'clock in the afternoon. A certain Emilio Dimagnaong, who likewise resided in accused's house, informed them that accused Sanchez was not around. The narcotics agents decided to wait for the arrival of Sanchez. However, after the lapse of fifteen (15) minutes, Sgt. Velez ordered his agents to proceed with the search.

The search yielded the following: 17 lids of marijuana lying on top of accused's bed, covered by an orange jacket;^[11] three (3) lids of dried marijuana leaves on the wall or house post in the living room; a sling and dart; a wallet containing a marijuana cigarette; and plastic cellophanes used for packing marijuana on top of a table in the living room.^[12]

After the search, Sgt. Cariño issued a receipt (Exhibit "E") for the articles seized from accused's house. The receipt was signed by Dimagnaong and barangay tanod Nagac who were both present during the search. Later that evening, the agents saw accused Sanchez at the Operation Kahusayan at Kalinaw in Cagayan de Oro City where the accused reported that her house was ransacked by robbers. Whereupon, the agents arrested Sanchez and brought her to the Narcotics Office.^[13]

Consequently, Crisanta Sanchez y Abatilo was charged with the sale of marijuana, a prohibited drug, in violation of Section 4, Article II of R.A. 6425, as amended. The Information reads:

"That on or about August 9, 1989, at about 3:00 o'clock in the afternoon, at Burgos-del Pilar Streets, Cagayan de Oro City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there wilfully, unlawfully and feloniously, without authority of law, sell, deliver, distribute and give away to the public twenty (20) lids of dried marijuana leaves, and one (1) stick (of) marijuana cigarette which is a prohibited drug, and knowing the same to be a prohibited drug which was then in her possession, custody and control.

"Contrary to law." (Original Records, p. 11)

At the trial, accused Sanchez denied having sold marijuana to anyone.^[14] She claimed that in the early part of June 1989, she allowed Dimagnaong to stay in her house for free, in return for which, Dimagnaong agreed to render massage services to her son who was afflicted with polio. Dimagnaong's services were recommended to her by a neighbor, Rosario Tabuada.^[15] Sanchez explained that while Dimagnaong stayed in her house, she had occasion to observe him receive visitors in her house who would talk to him in whispers. She would then see Dimagnaong sell these leaves to his visitors packed or wrapped in plastic. She insisted that the marijuana lids found in her house belonged to Dimagnaong for she had previously seen these leaves in his possession. However, at that time, accused claimed that she did not know that these were marijuana leaves. Once, when she inquired from Dimagnaong about the leaves, the latter told her that they were just herbs and medicinal plants. Accused further disclaimed ownership of the brown wallet, orange jacket, darts and slings and several plastic bags seized from her house.^[16]

Accused further claimed that when the search was conducted by the narcotics agents, she was in Lapasan, Cagayan de Oro City and was rendering manicure services in the house of a certain Moises. Her husband was then at work and her four (4) children were in school. When accused returned to her house that night, she saw all her things in disarray. She then discovered that she lost three thousand five hundred pesos (P3,500.00). Dimagnaong was nowhere to be found. Thinking that she was robbed, she reported the incident to the Operation Kahusayan at Kalinaw where she was subsequently arrested by the narcotics agents.^[17] After her release from detention, she exerted efforts to locate Dimagnaong to no avail.^[18]

Accused's testimony was corroborated by Rosario Tabuada. She testified that Emilio Dimagnaong stayed at her house for some time before the latter resided at accused's house on June 1989. She further declared that while Emilio stayed at her house, Emilio brought with him a green bag and an orange jacket.^[19]

After the trial, a decision was rendered by Judge Anthony E. Santos^[20] finding the accused guilty beyond reasonable doubt of the crime charged.

Hence this appeal.

Accused-appellant contends that:

I.

THE LOWER COURT ERRED IN CONVICTING THE ACCUSED FOR AN OFFENSE SHE HAD NOT COMMITTED AND HAD NOT BEEN PROVED.

II.

THE LOWER COURT FAILED TO CONSIDER THE SIGNIFICANCE OF THE MEN'S WALLET, MEN'S (ORANGE) JACKET x x x, DART AND SLING BELONGING TO EMILIO DIMAGNAONG WHICH ARE INDICATIVE ALSO OF THE OWNERSHIP OF THE PROHIBITED DRUG SUBJECT OF THE CASE BY EMILIO DIMAGNAONG.

III.

THERE IS GRAVE AND SERIOUS DOUBT AS TO THE GUILT OF THE ACCUSED WHICH THE LOWER COURT FAILED TO APPRECIATE AS TO ENTITLE THE ACCUSED TO AN ACQUITTAL.

We find the appeal meritorious.

First. The Information against the accused-appellant charged that on or about August 9, 1989 at 3 p.m., she wilfully and unlawfully sold to the public twenty (20) lids of dried marijuana leaves.

The evidence of the prosecution, however, failed to establish the allegations in the Information. By its evidence, the Anti-Narcotics and Vice Division conducted two (2) test-buy operations against accused-appellant. The first was undertaken on June 29, 1989 at 6 p.m. The second was on August 8, 1989, also at 6 p.m. In both instances, the agents positioned themselves at a distance of 10 to 15 meters from the residence of accused-appellant. Allegedly, they saw accused-appellant sell one (1) lid of marijuana for P50.00 to their decoy on each occasion. The sale took place inside the house of accused-appellant. It is thus clear that the test sales took place not on August 9, 1989 but on June 29, 1989 and August 8, 1989. Neither did the sale happen at 3 p.m. but at 6 p.m. Likewise, the sale only involved one (1) lid of marijuana on June 29, 1989 and another lid of marijuana on August 8, 1989. They did not involve twenty (20) lids of marijuana leaves and one (1) stick of marijuana cigarette as alleged in the Information.

On the other hand, the event that transpired on August 9, 1989 was not a sale of any marijuana but the seizure of twenty (20) lids of marijuana leaves and one (1) stick of marijuana cigarette in the room of accused-appellant as a consequence of the service of a search warrant. Accused-appellant could not have sold any marijuana on that occasion for she was not in her house when the search warrant was served. Obviously, the allegations in the Information mistook the search that happened on August 9, 1989 with the test sales conducted on June 29 and August 8, 1989. The result is fatal to the prosecution. The two test sales are not the subject of the Information charging accused-appellant with violating Section 4, Article II of R.A. 6425. The evidence adduced to prove these two test sales is not material to prove the Information as the latter relates to the yield of the search conducted on the house of accused-appellant on August 9, 1989.

Second. Even assuming arguendo that the Information relates to the test sales of June 29 and August 8, 1989, we find the evidence of the prosecution inadequate to establish the charge. The prosecution story suffers from fatal incredulities. It is not explained why two (2) test-buy operations had to be conducted against accused-appellant. One test-buy operation would have been sufficient to confirm her alleged illicit activity. Further, it would have been more in consonance with regular police tactics if the second test-buy operation was used to entrap accused-appellant in flagrante delicto.

We are not also convinced that narcotic agents Duallo and Gacuz actually saw accused-appellant sell one (1) lid of marijuana to their decoy on June 29 and August 8, 1989. As borne by the records, accused-appellant's house was made of wood, with a small window and a balcony in front. The transactions took place at 6 p.m., and the two (2) agents posted themselves at a distance of ten (10) to fifteen (15) meters from the house of accused-appellant. The sale of marijuana transpired inside the house of accused-appellant. Under these circumstances, it is difficult to believe that they were able to see the sale of one (1) tiny lid of marijuana to their poseur-buyer.

The evidence of the prosecution could have been strengthened by the presentation of the agents' poseur?buyer. It is true that in a number of cases,^[21] we ruled that the testimony of a poseur-buyer is not indispensable to convict an accused for violation of R.A. 6425 as the same is merely corroborative. The necessary premise of these rulings is that said corroborative testimony can be dispensed with considering the clarity of the prosecution evidence establishing the guilt of the accused beyond reasonable doubt. Al contrario, when the totality of evidence of the prosecution is unclear on whether there was an actual sale, as in the case at bench, the testimony of the poseur-buyer becomes critical, if not decisive of the issue. The crime imputed against the accused-appellant carries the penalty of life imprisonment and her conviction cannot rest on weak and anemic evidence.

Third. The Court likewise entertains misgivings with respect to accused-appellant's alleged ownership of the articles seized from her residence. An examination of the records reveals that agent Jose Duallo admitted on cross-examination that the brown wallet containing one (1) lid of marijuana is of a kind or type used by a man.^[22] As to the identity of the orange jacket where the 17 lids of marijuana were found, defense witness Rosario Tabuada testified that when Emilio Dimagnaong initially stayed at her house, the latter brought with him a green bag and an orange jacket.^[23] This testimony was not challenged. We also note that Emilio Dimagnaong sometimes sleeps in the room of accused-appellant. Thus, the latter testified on cross examination, viz:

"Q   Now, your house has a room which serves as your sleeping quarter?

A    Yes, Sir. There is a plastic division.

Q    This serves as your room and that of the immediate members of your family, is that correct?

A    Yes, Sir.

Q    This Emilio Dimagnaong sleeps outside of that room?

A    Emilio Dimagnaong also sleeps there sometimes.

Q     Are you trying to inform this Honorable Court that Emilio Dimagnaong shares that room who (sic) happens to be the sleeping quarter of your family?

A    Yes, Sir.

Q    Are you trying to inform this Honorable Court that the members of your family tolerated the sleeping in your room of Emilio Dimagnaong?

A    Yes, Sir, because during daytime we left (sic) for work and our children also goes (sic) to school.

Q    Even if you are around Emilio Dimagnaong still sleeps sometimes in that room, is that correct?

A    Yes, Sir." (TSN, October 23, 1990, pp. 54-55)

The prohibited items were taken in the room sometimes shared by accused-appellant and Emilio Dimagnaong. The probability therefore that the said items belonged to Dimagnaong is not far-fetched and casts serious doubt on the guilt of the accused-appellant.

IN VIEW WHEREOF, the Decision in Criminal Case No. 89-627 of the RTC of Cagayan de Oro City, Branch 19, convicting accused-appellant Crisanta Sanchez of violation of Section 4, Article II of RA 6425, as amended, is REVERSED and SET ASIDE. No costs.

SO ORDERED.

Narvasa, C.J., (Chairman), Padilla, Regalado, and Nocon, JJ., concur.

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^[1] Decision, Rollo, pp. 48-55.

^[2] TSN, May 17, 1990, pp. 40-41; TSN, September 19, 1990, pp. 74-75.

^[3] TSN, May 17, 1990, pp. 40-41; TSN, September 19, 1990, p. 75.

^[4] TSN, May 17, 1990, pp. 41-44; TSN, September 19, 1990, pp. 75-78.

^[5] TSN, May 17, 1990, pp. 44 and 46; TSN, September 19, 1990, pp. 78-79.

^[6] TSN, May 17, 1990, p. 46.

^[7] TSN, May 17, 1990, pp. 42 & 46; TSN, September 19, 1990, p. 77.

^[8] TSN, May 17, 1990, p. 45.

^[9] TSN, May 17, 1990, pp. 48-49; TSN, September 19, 1990, p. 81.

^[10] TSN, April 4, 1990, pp. 19-20.

^[11] TSN, January 26, 1990, p. 9.

^[12] TSN, August 3, 1990, pp. 21-25.

^[13] TSN, January 26, 1990, pp. 13-16.

^[14] TSN, October 23, 1990, pp. 36 & 46.

^[15] TSN, October 23, 1990, pp. 40-42.

^[16] id., pp. 44-45.

^[17] id., pp. 45-47. The amount was subsequently returned to accused upon order of the trial court.

^[18] TSN, October 23, 1990, p. 43.

^[19] TSN, December 5, 1990, pp. 66-67.

^[20] Rollo, pp. 48-55.

^[21] People vs. Dag-uman, G.R. No. 96548, May 28, 1992, 209 SCRA 407; People vs. Fernandez, G.R. No. 86495, May 13, 1992, 209 SCRA 1.

^[22] TSN, May 18, 1990, p. 67.

^[23] TSN, December 5, 1990, p. 67.