Accused-appellant Rita Labriaga, 31, was sentenced by the trial court to life imprisonment and fined P20,000.00 for pushing marijuana and her younger brother, Joel Labriaga, 28, imprisonment from 6 YEARS AND 1 DAY TO 8 YEARS^[1] and fined P6,000.00 for illegal possession of marijuana.

The facts of the case as found by the lower court based on the testimonies of AIC Lucio Flores, Pat. Romeo Velasco, AIC Riza Galvan, and Lt. Ma. Rosa Armovit, and the exhibits presented, are as follows:

Last January 28, 1988, there was a report received by their headquarters about illegal drug trafficking in Daraga, Albay.  The names mentioned by their informer were that of Joel and Rita Labriaga.  AIC Flores, who talked with the informer, referred the latter to the Commanding Officer of NARCOM, Major Crisostomo Zaidem, who requested the informer to make test buy operation, giving the latter P20.00.  The three of them were the back up of the test buy.

They therefore proceeded to the PNR site of Daraga, Albay for the mission.  As the informer proceeded to the house of Rita Labriaga to buy the prohibited merchandise, the 3 back up men stayed behind, hiding themselves about 300 meters away.

About 5 minutes later, they met with the informer at the Daraga Church.  The informer said he was able to buy one tea bag, so they again proceeded to the headquarters to make the report, According to the informer, he bought the tea bag from Rita Labriaga herself and that Joel Labriaga was there.

Major Zaidem forthwith ordered another agent, Elpidio Molinawe to apply for search warrant, which was granted by Executive Judge Wenceslao Villanueva of the RTC of Legazpi.

Another test buy was arranged by Major Zaidem in the afternoon.  The team was composed of Major Zaidem himself, C1C Galvan, A1C Lucino Flores, Pat. Romeo Velasco, Sgt. Felipe Codilla, and Sgt. Elpidio Molinawe.  But before they went on their mission, a briefing was conducted first, then at about 4:00 p.m. they proceeded to the place.

A1C Riza Galvan was the one who was made the posseure (sic) in the second test buy, with instruction to see if Joel and Rita were there.  Marked money in 4 five peso bills were also given to Riza Galvan who was told to make signals by brushing his hair twice if both Rita and Joel were present in the house.

According to Riza Galvan, he went direct to the store and was able to talk to Rita.  He told Rita he wanted to buy marijuana, after which, upon receiving his (sic) money, Rita went inside the room.  When she went out, she was already with Joel, and was carrying a plastic bag.  When he opened the plastic bag, it contained the tea bag.  He therefore went near the window and signalled his team by brushing his hair twice.  In no time, Major Zaidem and the rest of the team arrived.

The NARCOM team immediately surrounded the subject house and secured it because they were told that Joel was armed with a .38 caliber pistol.

Joel was about to escape through the back door but was apprehended by Pat. Velasco, who immediately searched him and found the 3 grams of marijuana plus one P5.00 marked bill and four P100.00 peso bills.

No firearm was however found on Joel who was then drinking with Jesus Mape outside the house, but within the fence of the Labriaga house when the search was made.

The search warrant was shown to Joel, after which, Major Zaidem, Molinawe and Tuzon went inside and searched the house in the presence of a radioman, neighbor of the Labriaga, who is Tony Impig, who acted as the disinterested witness.

The result in the search inside the house was negative.  The raiding team found nothing inside the house, so, they left Tony Impig and Camilo Labriaga, the father of the accused who is a barangay councilman, sign papers stating that the search was conducted orderly, and that nothing was found inside the house.

The team was however suspicious of Rita who was in jogging pants but had bulges between her thighs.  Rita was not therefore allowed to go to the comfort room pending search on her body.

As the search was going on, the mother of Rita fainted.  She was therefore brought to the Ago Hospital in Albay, in company with Rita, Joel, Molinawe and some other NARCOM men.

From the hospital, Joel and Rita were brought to the NARCOM headquarters at Camp Bagong Ibalon for investigation, and while there, the NARCOM agents observed that Rita was very restless.  So, a female nurse, Lt. Ma. Rosa Armovit, was asked to search the body of Rita inside a private room.

When the nurse came out of the room, she was already carrying a bag containing 115 grams of marijuana dried leaves (Exhibit C).

All the marijuana leaves were turned over to the PC Crime Laboratory for examination whereby the result (Exhibit C), was positive that they were marijuana.

Lt. Ma. Rosa Armovit, a military nurse of the PC assigned at Camp Bagong Ibalon also testified.  She said she just arrived in her quarters, overlooking the NARCOM in Camp Bagong Ibalon at about 5:00 p.m. of January 28, 1988 when she was sent for by Sgt. Villanueva to the NARCOM Headquarters.  She obliged.  The persons in the NARCOM office were Major Zaidem, and Juvy Ladislao, their psychologist.  She was told to conduct body search on Rita Labriaga, so she requested for a private room.  Juvy Ladislao was invited by her to go inside the room to act as witness in the search.

Inside the room, Lt. Armovit told Rita to undress but Rita was reluctant to remove her loose (lawlaw) pants.  But according to Lt. Armovit, she insisted so Rita obeyed.

Lt. Armovit said she found plastic bag tacked outside the pants of Rita, which was wrapped in cellophane.  She therefore asked Rita to remove the bag but the later refused, so she removed it herself.  Whereupon, Rita told her "Huwag mo na lang sabihin maynakitang balutan sa panty ko.  Magbabayad na lang ako, kung magkano ang gusto mo." According to Lt. Armovit, she said it cannot be because she (Rita) had already ruined the lives of so many young ones.  Lt. Armovit told Rita to dress up and when they went out, she gave the bag to Major Zaidem.^[2]

Captain Lorlie Arroyo, the Forensic Chemist of the PC/INP Crime Laboratory at Camp Bagong Ibalon, Legazpi City, examined one tea bag, one plastic bag weighing 115 grams, and one bag containing 3 grams of suspected marijuana leaves.  She conducted the internationally recognized standard tests for suspected marijuana leaves, namely, duquenois levine and thin layer chromatographic examinations, the results of which confirmed the suspicion that the subjects of examination were leaves of the marijuana plant, which are covered by the Prohibited Drug Act.

The versions of the accused-appellants are as follows:

Rita narrated that:

x x x she was in her father's house at PNR Site, Daraga, Albay, last January 28, 1988, together with her brother Joel, her mother Amalia, her daughter, and a friend of Joel, Jesus Mape when NARCOM agents came and surrounded their house.  The NARCOM agents presented a search warrant to Joel who read it.  When Joel asked why, he was spanked on both ears by Sir Moliñawe.  Then the search warrant was also shown to her father Camilo Labriaga.  Mr. Impig was there as witness.

The NARCOM people found nothing in their house.  Nothing was also found in the possession of Joel.  "God knows," according to Rita, that Exhibits B and C were not found in the possession of Joel." But during the search, her mother fainted and was brought to the hospital by 3 NAR- COM agents with her and Joel accompanying.

While her mother was being treated, Rita said Sir Moliñawe was forcing her to go with them already to the NARCOM Headquarters.  At first, she refused to leave her mother but she was practically dragged by Moliñawe to the car and brought to the NARCOM Headquarters at Camp Bagong Ibalon.

At NARCOM office, she and Joel were made to sit on a bench.  Then, a woman arrived.  After 10 minutes, she was made to enter a room where there were stoves.  The two women also entered the room and ordered her to undress.  They found nothing on her.  Afterwards, they told her to put her clothes on.

When she came out, the two women were already carrying a plastic bag.

A little later, she was brought to the office of the provost marshall where her blood pressure was taken which was found to be normal.  At that moment, according to Rita, Sir Moliñawe and Pat. Velasco arrived and whispered to her to give money.  She asked, "What for?" when she had not done anything wrong?  Both said they will give the money to Major Zaidem.

Rita denied that marijuana was found between her thighs.^[3]

Joel likewise testified that:

x x x NARCOM agents went to their house at PNR Site, Daraga, Albay, about 3:00 in the afternoon of January 28, 1988.  Pat. Romeo Velasco and Sgt. Moliñawe were among the NARCOM team.  Only he, his mother Amalia, and sister Rita were in the house at that time.

His father Camilo Labriaga however arrived a little later, together with a radioman named Tony Impig.  The search warrant was therefore presented to his father.

Joel denied possessing marijuana that afternoon.  He however said he was spanked twice by Sgt. Moliñawe on both ears.  But despite the fact that the agents did not find anything in his possession, he was still brought to the PC Headquarters at Camp Bagong Ibalon for nine (9) days.

On the evening of their arrest, his father went to them to give food but was refused by Major Zaidem on the pretext that they may be poisoned.  He was even made to identify the P5.00 and P100.00 bills which came from his father, which he did not identify but nevertheless, was not returned by the agents anymore.

Joel said that on their way to the Camp, Pat. Romeo Velasco allegedly demanded P10,000.00 for his liberty, plus another amount from his sister, but that they refused because the amount was too much.  He was therefore told by Pat. Velasco that he had to be detained because he is facing another drug case in another court.  But Rita may be released.

Although Pat. Velasco tried to extort money from them, he did not file a case against the former because they have no witnesses.  The guard at the Provost Marshall's Office who overheard the conversation refused to testify for them.^[4]

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Only one grossly inadequate brief was filed for both accused-appellants and assigned only the following error:

That the trial court erred in holding that accused Rita Labriaga was a pusher, having sold (two) 2 tea bags of marijuana on two test buy operations on January 28, 1988.

The main defense of Rita is that the trial court can not use a particular piece of evidence to convict her if the evidence was never presented in court.  There were allegedly two (2) test buy operations and two (2) tea bags of marijuana bought from her.  Since the first tea bag of marijuana which was the product of the first "buy-bust" operation was not presented and identified by the civilian informer and poseur-buyer, accused Rita should be acquitted, the defense counsel submits.

This contention is without merit.

We have repeatedly held that the appreciation of evidence and the assessment of the credibility of witnesses rest primarily with the trial courts.^[5]

The failure to present as evidence the first confiscated tea bag is not fatal to the prosecution's case.  Nor would it impair the essential integrity of the prosecution's evidence as to the second "buy-bust" operation.

Significantly, the corpus delicti of the second entrapment of Rita on January 28, 1988, as shown in Exhibit "B" and the combined testimonial evidence presented, is the real and direct proof of Rita's culpability.  We hold that this suffices to sustain a judgment of conviction.

The testimonies of the prosecution witnesses disclose that Rita was caught in a "buy-bust" operation conducted by officers and men of the Narcotics Command in Albay, selling a tea bag of marijuana leaves and possessing a plastic bag containing 115 grams also of marijuana leaves.  These articles are described in the records and can not be denied.

The pertinent portions of the testimonies on this score are as follows:

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Testimony of AIC Riza Galvan, Assistant Investigator -?

Q.  Alright.  When you saw Rita Labriaga standing in their store inside their residence, what did you do?

A.   I talked to her and I told her that I was going to buy marijuana.^[6]

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Q.  What did Rita tell you if any when you told her that you wanted to buy from her marijuana?

A.   I gave her P20.00 bills and she entered the house.

Q.  Which P20.00 bill did you give to Rita?

A.   The marked money.^[7]

Q.  Now, then what happened after Rita came out from the room?

A.   When she came out of the room she was already carrying a plastic bag and when I opened it, it contained a tea bag.

Q.  After you learned that what was given to you by Rita Labriaga was a tea bag of marijuana, what did you do then?

A.   When I was able to confirm that it contained marijuana I executed the pre-arranged signal.^[8]

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Testimony of Lt. Ma. Rosa Armovit, military nurse --

Q.  Did Rita oblige when you requested Rita to remove her clothings?

A.   At first she did not want but again I convinced her to do it and then she did it and I found in between her thighs this tea bag of dried marijuana and it was pinned beneath the panty.

Q.  Will you describe to us the marijuana which you said was wrapped in a transparent cellophane?  How was it fastened on the person of Rita?

A.   Can I stand?

(At this juncture the witness stands and makes some demonstrations.)^[9]

A.   When she removed her panty down to her knees I saw a bag here (witness pointing in between her thighs) and right that moment I saw it was marijuana.^[10]

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There is also nothing in the records suggesting that the testimonies of the NARCOM AGENTS were motivated by any reason other than the mission to curb drug abuse.  The agents, in fact, acted with prudence in their entrapment of the suspects.  Tipped that Joel had a .38 caliber pistol and that more marijuana was secretly kept in the Labriaga's residence, Major Zaidem applied for and was granted a search warrant on January 28, 1988 by Executive Judge Wenceslao Villanueva of the RTC of Legazpi City.^[11] Major Zaidem then requested Antonio Impig San Miguel, a well-known radio reporter in Daraga, Albay, to witness the search of the house of Rita and Joel Labriaga.  The search yielded nothing.  In fact, in an act of compassion, the agents transported Amalia, Rita's mother, who had fainted in the course of the search, to Ago Hospital.

The defense "disclosure" of the alleged extortion of money by Major Zaidem in the amount of P60,000.00 from Rita's father and by Pat. Romeo Velasco of P10,000.00 from Joel in exchange for Rita and Joel's liberty impresses the Court as mere fabrication, unsubstantiated by any reliable evidence, in order to cloak the appellants' illegal and clandestine activities.

If there was indeed an attempted extortion as the defendants claimed, they should have filed the proper case against the Narcom agents.  But, they did not.

On the other hand, the prosecution demonstrated the culpability of the appellants beyond reasonable doubt and satisfactorily struck down their presumption of innocence.

It must be noted at this juncture, that although the penalties imposed on both accused-appellants are correct, the trial court cited incorrectly the applicable sections of Republic Act 6425.  Accused-appellant Joel Labriaga, found guilty of illegal possession of marijuana or Indian hemp, should be penalized under paragraph II of Section 8, Article II of said act, which provides as follows:

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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.  (As amended by BP Blg. 179, March 2, 1982.)

and not as stated in the decision of the trial court, under Section 9, Article II, of the same Act, which penalizes the cultivation "or culture on any medium Indian hemp, opium poppy (papaver somniferum) or any other plant which is or may hereafter be classified as dangerous drugs or from which any dangerous drug may be manufactured or derived." (As amended by BP Blg. 179, March 2, 1982.)

The court a quo likewise erroneously invoked Section 9, Art. II of same Act as the basis for accused-appellant Rita Labriaga's sentence of life imprisonment.  It should have applied Section 4 of Republic Act 6425, otherwise known as the Dangerous Drug Act of 1972, as amended by Presidential Decree No. 1675, Section 1, which provides as follows:

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 offenses under this Section be the proximate cause of the death of a victim thereof, the maximum penalty herein provided shall be imposed.  (As amended by P.D. No. 1675 which took effect on Feb. 17, 1980)

WHEREFORE, except for the corrections with regard to the provisions of the Dangerous Drugs Act applicable, the Decision dated January 15, 1990 is hereby AFFIRMED.

SO ORDERED.

Melencio-Herrera, (Chairman), Paras, Padilla, and Regalado, JJ., concur.

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^[1] Regional Trial Court (RTC), Branch 10, Legaspi City; Hon. Antonio A. Arcangel, Presiding Judge.

^[2] Rollo, 27-31, Decision.

^[3] Id., 33-34.

^[4] Id., 35-37.

^[5] People v. Anciano, G.R No. 88937, Sept. 13, 1990.

^[6] T.S.N., January 13, 1989, 183-184.

^[7] Id., 185.

^[8] Id., 186.

^[9] T.S.N., January 12, 1989, 158.

^[10] Id., 158-159.

^[11] Decision, 5.