THIRD DIVISION
[ G.R. No. 181249, March 14, 2011 ]PEOPLE v. BAIDA SALAK Y BANGKULAS +
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. BAIDA SALAK Y BANGKULAS, ACCUSED-APPELLANT.
DECISION
PEOPLE v. BAIDA SALAK Y BANGKULAS +
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. BAIDA SALAK Y BANGKULAS, ACCUSED-APPELLANT.
DECISION
VILLARAMA, JR., J.:
On appeal is the Decision[1] dated February 21, 2007 and Resolution[2] dated July 3, 2007 of the Court of Appeals (CA) in CA-G.R. CR.-H.C. No. 01740, which affirmed the Decision[3] of the
Regional Trial Court (RTC), Branch 103, of Quezon City in Criminal Case No. Q-01-100879. The RTC found Baida Salak y Bangkulas guilty of illegal sale of a regulated drug in violation of Section 15,[4] Article III of Republic Act (R.A.) No. 6425 or the
Dangerous Drugs Act of 1972, as amended by R.A. No. 7659.[5]
The Information dated May 25, 2001 filed against appellant reads:
When arraigned, appellant pleaded not guilty.
On September 25, 2001, following the failure of prosecution witnesses to attend scheduled hearings for the fifth consecutive time despite the issuance of subpoenas, the trial court orally ordered the provisional dismissal of the case.[7] Shortly after the order was given, however, the prosecution witnesses from the National Bureau of Investigation (NBI), Special Investigators Edgardo Kawada, Sr. and Raoul Manguerra, arrived. Hence, the order was recalled.[8] Trial then ensued.
The prosecution presented two witnesses: NBI Special Investigator Kawada, who acted as the poseur-buyer in the buy-bust operation, and Supervising Agent Dominador Villanueva III, who acted as backup during the NBI operation. Their version of facts is as follows:
In the morning of May 23, 2001, the NBI Special Task Force (STF) received information from one of their assets that a certain "Baida" is engaged in selling shabu at Litex Market in Commonwealth Avenue, Quezon City. Immediately, NBI-STF agents formed a team composed of Atty. Cesar Bacani, Supervising Agents Rommel Vallejo and Dominador Villanueva III, Special Investigators Raoul Manguerra, Job Gayas, Charlemagne Veloso, Eric Isidro, Eduardo Villa, Rolan Fernandez and Edgardo Kawada, Sr. to conduct a surveillance operation.[9] A briefing was held at around 12:00 noon[10] before the team proceeded to Litex Market. At 2:00 p.m., they arrived thereat.[11]
There, the NBI agents waited in strategic locations so they could see their asset while the latter talked with appellant. After a brief conversation with appellant, the asset informed the NBI team that appellant was in possession of shabu and was willing to make a transaction.[12] Thus, a clearance to conduct a buy-bust operation was issued by the Chief of the NBI-STF, Atty. Max Salvador, and a poseur-buyer was designated in the person of Special Investigator Kawada.
The asset then told appellant that he has a buyer. Appellant instructed the asset to go to Greenwich Pizza Parlor in Fairview, Quezon City with the buyer.[13] As instructed, the asset and Kawada, followed by the rest of the team, drove to Greenwich Pizza, but appellant later called the asset on the latter's cellular phone and instructed the latter to go instead to McDonald's restaurant, which was just across Greenwich Pizza. Kawada and the asset obliged.[14] After an hour, appellant arrived, accompanied by two men, whom she later introduced to Kawada and the asset as her husband, Karim Salak, and a certain Boy Life.[15]
The asset introduced Kawada to appellant and the two discussed the terms of the transaction. Kawada agreed to pay P60,000 per 100 grams of shabu, or a total of P180,000 for the 300 grams which appellant will supply. Kawada suggested that the exchange be made at the parking lot of Ever Gotesco Mall along Commonwealth Avenue, but appellant insisted that the venue be at Litex Market.[16] Kawada agreed so appellant boarded his vehicle with the NBI asset, and the three proceeded to Litex Market.
Upon arriving at Litex Market, appellant alighted and left to retrieve the drugs. She returned 30 minutes later, followed by Karim and Boy Life, this time carrying a plastic bag. Appellant entered Kawada's car, while her two companions stood guard outside.[17]
Inside the car, appellant showed Kawada three small heat-sealed plastic sachets packed inside a bigger plastic bag. Appellant gave the plastic bag containing the three heat-sealed sachets to Kawada who, in turn, gave P180,000 in genuine bills[18] to the former. The money was mixed with three one-hundred peso bills earlier marked with "ECK 5/23/01"[19] representing Kawada's initials and the date of the entrapment operation. While appellant was busy counting the money, Kawada identified himself as an NBI operative and arrested appellant. Meanwhile, outside Kawada's vehicle, appellant's two male companions, perhaps sensing that something was amiss, instantly took off and mingled with the crowd at Litex Market as other NBI agents rushed towards the location of Kawada's vehicle.[20]
Appellant was brought to the NBI office,[21] while the three heat-sealed plastic sachets, marked as "REM 1," "REM 2," and "REM 3," were submitted by NBI Agent Raoul Manguerra, upon Kawada's endorsement, to the NBI Forensic Chemistry Division for chemical analysis at 7:15 in the morning of the following day, May 24, 2001.[22]
A Certification[23] dated May 24, 2001 was issued by NBI Forensic Chemist II Juliet Gelacio-Mahilum stating that the white substance contained in the three heat-sealed plastic sachets, marked "REM 1," "REM 2" and "REM 3," with a total weight of 305.4604 grams, yielded positive results for methamphetamine hydrochloride or shabu, a regulated drug.[24]
The defense, for its part, denied the charges and presented the following version of facts:
In the morning of May 23, 2001, while appellant and her husband Zaldy Pinorac were busy tending their stall at Manggahan Market in Commonwealth Avenue corner Litex Road, Quezon City, an acquaintance named Mila arrived. Mila was accompanied by two companions, one of whom was introduced as Aminola Kawada. The group talked to Zaldy while appellant busied herself in their store. Thereafter, Zaldy asked appellant if she could accompany Mila's group to McDonald's in Fairview as Mila's group wanted to buy VCD from Boy Life,[25] who, according to appellant, is her second cousin and whose real name is Karim Salak.[26] Appellant complied.
At McDonald's restaurant, appellant found Boy Life already waiting for them as Zaldy notified Boy Life over the phone. Appellant introduced Mila's group to Boy Life, and was asked to order some food. Appellant ate with the group and thereafter excused herself and returned to their store.[27]
At the store, Zaldy told her that Boy Life called him on the cell phone and disclosed that he sold 100 grams of shabu to Mila and her companions. Appellant claims that she got angry with Zaldy for putting her in such a precarious situation.[28]
Around seven o'clock that evening, Boy Life dropped by appellant's store, but appellant ignored him. An hour later, she heard a gunfire. She looked outside her store and saw Boy Life being chased by two men. When the men failed to apprehend Boy Life, they went to her stall accompanied by Aminola Kawada. Aminola Kawada's group grabbed Zaldy, but Zaldy resisted and ran. He was chased by Aminola Kawada's group but the latter also failed to arrest him so they returned to appellant's store and forcibly took her. Mangayao Angne, a fellow vendor who tried to intervene and help appellant, was also arrested. They were both brought to the NBI office in Taft Avenue, Manila,[29] but Angne was released the following day.[30]
Zaldy testified that he returned to their store almost an hour after the incident and learned from his fellow vendors that his wife and Angne were arrested. On May 24, 2001, he received a call from Aminola Kawada demanding information about Boy Life's whereabouts. Kawada also allegedly asked for P300,000 in exchange for his wife's release, but when he told Aminola that he does not have that much money, Aminola reduced the amount to P100,000.[31]
Two more witnesses, Mangrose Ampaso and Macapintal Angne corroborated appellant's testimony. Both men also own market stalls at Litex Market and claimed that they were present near the vicinity of appellant's store when the NBI operatives nabbed her on the night of May 23, 2001.
On October 11, 2001, the defense filed a motion requesting for a quantitative or purity analysis on the shabu specimen allegedly confiscated from the appellant.[32] The RTC granted the said motion and directed NBI Forensic Chemist Juliet Gelacio-Mahilum to conduct the necessary tests.[33] A Certification, albeit dated August 1, 2001, was thereafter issued by NBI Forensic Chemist Gelacio-Mahilum stating:
On February 18, 2002, the RTC promulgated its decision finding appellant guilty beyond reasonable doubt of the crime charged. The dispositive portion of the trial court's decision reads:
Appellant appealed her conviction to the CA, but the CA affirmed the RTC decision in toto.[36] The CA also denied appellant's motion for reconsideration for lack of merit.[37] Hence this appeal.
Appellant alleges that:
The appeal lacks merit.
Appellant assails the continuation of the trial against her notwithstanding the order of provisional dismissal earlier issued by the trial court following the repeated failure of the prosecution witnesses to attend scheduled hearings. Specifically, appellant argues that the case should not have been revived without the proper motion from the prosecution.
Appellant's contention is without merit. A careful perusal of the records shows that the provisional dismissal, which was declared in open court by the judge on September 25, 2001, was never reduced into writing after Special Investigators Kawada and Manguerra appeared at the last minute of the said hearing.[39] Moreover, it appears that the said issue was brought up by appellant's counsel in the next hearing and was settled when the trial court judge issued an order, again in open court, recalling and setting aside the September 25, 2001 order provisionally dismissing the case.[40]
It bears emphasizing that an oral order has no juridical existence until and unless it had been reduced into writing and promulgated, i.e. delivered by the judge to the clerk of court for filing, release to the parties and implementation.[41] In fact, even if it had been written and promulgated, or even if it had already been properly served on the parties, it is still plainly within the power of the judge to recall it and set it aside because every court has the inherent power, among others, to amend and control its process and orders so as to make them conformable to law and justice.[42]
Appellant likewise faults the trial court in convicting her despite the prosecution's alleged failure to establish the integrity of the shabu confiscated from her and presented in court. She points out that the NBI-STF team did not comply with the requirement that a physical inventory and photograph of the confiscated drugs be taken,[43] as provided in Dangerous Drugs Board Regulation No. 3, Series of 1979, as amended by Dangerous Drugs Board Regulation No. 2, Series of 1990. Neither did the prosecution present the buy-bust money. These shortcomings, according to her, create reasonable doubt.
The Office of the Solicitor General, meanwhile, counters that the failure of the NBI-STF operatives to comply with the documentation and reportorial requirement, even if true, does not affect the actual conduct and regularity of the buy-bust operation itself because of the presumption of regularity in the performance of official functions which should be upheld here in the absence of evidence militating against its application.[44]
Appellant's assertion fails.
Dangerous Drugs Board Regulation No. 3, Series of 1979, as amended by Dangerous Drugs Board Regulation No. 2, Series of 1990 reads:
The records do not show that the NBI-STF team complied with the aforementioned procedure. Nevertheless, such failure is insufficient ground to acquit appellant.
In People v. Gonzaga,[46] wherein the very same issue was raised, we explained that:
Moreover, non-compliance with the said regulation is not fatal to the prosecution as it does not render appellant's arrest illegal or the seized items inadmissible in evidence. What is of utmost importance is the preservation of the integrity and evidentiary value of the seized drugs as the same would be utilized in the determination of the guilt or innocence of herein appellant.[48]
A thorough review of the records of this case shows that despite the NBI-STF's non-compliance with said regulation, the integrity and evidentiary value of the confiscated drugs was nonetheless preserved. Evidence shows that the three heat-sealed plastic sachets of shabu, after being confiscated from appellant on the night of May 23, 2001, were duly marked by poseur-buyer Kawada as "REM-1," "REM-2" and "REM-3" using his own codename.[49] That same night, at the NBI-STF office, Kawada prepared the disposition form with file number DD-010480 indicating the transmittal of the same three heat-sealed sachets of shabu for laboratory examination. The said disposition form was duly noted by NBI-STF Chief Atty. Max Salvador.[50] The following day, the confiscated drugs including the disposition form Kawada prepared, were delivered and submitted by Agent Raoul Manguerra to the NBI Forensic Chemistry Division at 7:15 in the morning and were duly received by NBI Forensic Chemist Gelacio-Mahilum.[51] As indicated in her Certification dated May 24, 2001, the three plastic sachets marked "REM-1," "REM-2," and "REM-3" were still heat-sealed when she received them. She also certified that the three sachets have a total weight of 305.4604 grams and gave positive results for methamphetamine hydrochloride or shabu.[52] When presented during the trial, these specimens were also positively identified by Kawada as the very same sachets which were handed to him by the appellant.[53]
It is also worthy to note that appellant never alleged that the drugs presented during the trial have been tampered with. Neither did appellant challenge the admissibility of the seized items when these were formally offered as evidence. In the course of the trial, the seized shabu were duly marked, made the subject of examination and cross-examination, and eventually offered as evidence, yet at no instance did the appellant manifest or even hint that there were lapses in the safekeeping of the seized items as to affect their admissibility, integrity and evidentiary value. It was only during her appeal that she raised the issue of non-compliance with the said regulation. Settled is the rule that objections to the admissibility of evidence cannot be raised for the first time on appeal; when a party desires the court to reject the evidence offered, he must so state in the form of objection. Without such objection, he cannot raise the question for the first time on appeal.[54]
It should also be noted that appellant failed to present evidence to show that the NBI-STF team was impelled by improper motives to testify against her. She merely gave the bare assertion that she was arrested by the NBI operatives to be used as leverage in pressuring her husband to divulge the whereabouts of alias Boy Life.
It must be stressed that the shabu confiscated from appellant weighed 305.4604 grams with 87.99% average purity. To the Court, the difficulty and enormous risk of obtaining such huge amount of regulated drugs, with a street value of at least P180,000, only for the purpose of incriminating and extorting money from an individual who was not shown to be of good financial standing and business importance, renders the allegation highly improbable.[55] If the NBI-STF operatives indeed wanted to frame-up appellant and extort money from her or her relatives, a small quantity of shabu would have been sufficient to cause her arrest.
Finally, as to appellant's argument that she should have been acquitted since the prosecution failed to present the buy-bust money used during the operation, again, the argument is without merit. Failure to present the buy-bust money is not indispensable in drug cases since it is merely corroborative evidence, and the absence thereof does not create a hiatus in the evidence for the prosecution provided the sale of dangerous drugs is adequately proven and the drug subject of the transaction is presented before the court. Neither law nor jurisprudence requires the presentation of any money used in the buy-bust operation.[56]
In crimes involving the sale of illegal drugs, two essential elements must be satisfied: (1) identities of the buyer, the seller, the object and the consideration, and (2) the delivery of the thing sold and the payment for it.[57] These elements were satisfactorily proven by the prosecution beyond reasonable doubt through testimonial, documentary and object evidence presented during the trial.
WHEREFORE, the appeal is DISMISSED. The Decision dated February 21, 2007 and Resolution dated July 3, 2007 of the Court of Appeals in CA-G.R. CR.-H.C. No. 01740, affirming the Decision of the Regional Trial Court (RTC), Branch 103, of Quezon City in Criminal Case No. Q-01-100879 is AFFIRMED.
With costs against the accused-appellant.
SO ORDERED.
Carpio Morales, (Chairperson), Bersamin, Abad,* and Sereno, JJ., concur.
* Designated additional member per Special Order No. 940 dated February 7, 2011.
[1] Rollo, pp. 3-22. Penned by Associate Justice Marina L. Buzon, with Associate Justices Edgardo F. Sundiam and Monina Arevalo-Zenarosa, concurring.
[2] CA rollo, pp. 158-159.
[3] Records, pp. 103-111. Dated February 18, 2002. Penned by Judge Jaime N. Salazar, Jr.
[4] SEC. 15.Sale, Administration, Dispensation, Delivery, Transportation and Distribution of Regulated Drugs. -The penalty of reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos shall be imposed upon any person who, unless authorized by law, shall sell, dispense, deliver, transport or distribute any regulated drug.
x x x x
[5] The Death Penalty Law.
[6] CA rollo, p. 6.
[7] Records, pp. 33, 42, 45-49, and 52-55.
[8] Id. at 56; See TSN, October 2, 2001, p. 2.
[9] TSN, Special Investigator Edgardo Kawada, Sr., October 2, 2001, pp. 8-10.
[10] TSN, Supervising Agent Dominador Villanueva III, October 9, 2001, p. 4.
[11] TSN, Special Investigator Edgardo Kawada, Sr., October 2, 2001, p. 11.
[12] Id. at 13.
[13] Id. at 14.
[14] Id. at 15-17, 40-41.
[15] Id. at 17-18.
[16] Id. at 18-20.
[17] Id. at 21-22, 24.
[18] Id. at 23.
[19] Records, p. 9 and reverse unnumbered page.
[20] TSN, Special Investigator Edgardo Kawada, Sr., October 2, 2001, pp. 22-25.
[21] Records, pp. 13-14.
[22] Id. at 7-8.
[23] Id. at 8.
[24] See also Dangerous Drugs Report No. DD-01-480 dated May 31, 2001 issued by NBI Forensic Chemist II Juliet Gelacio-Mahilum containing the same information and result. (Records, p. 118, Exh. "C".)
[25] TSN, Baida Salak, November 27, 2001, pp. 6-10.
[26] TSN, Baida Salak, December 4, 2001, p. 2.
[27] TSN, Baida Salak, November 27, 2001, pp. 11-13.
[28] Id. at 14-15.
[29] Id. at 16-28.
[30] Id. at 32.
[31] TSN, Zaldy Pinorac, December 18, 2001, pp. 24-25.
[32] Records, pp. 66-68.
[33] Id. at 69.
[34] Id. at 120, Exh. "E". The said Certification was also noted in the Minutes of the Trial, id. at 71.
[35] Id. at 111.
[36] CA rollo, p. 141. The dispositive portion of the Court of Appeals' February 21, 2007 Decision reads:
[37] Id. at 158.
[38] Id. at 40.
[39] Records, p. 56.
[40] TSN, October 2, 2001, pp. 2-5, the pertinent portion of which reads:
ATTY. SAVELLANO:
If your Honor please, may we ask for the implementation of the Order, your Honor, of Sept. 25 for the dismissal of this case because the accused was encarcerated (sic) in the City Jail.
COURT:
But last [September] 25, the police (sic) arrived, although after we have already dismissed the proceeding orally, that is why we ask[ed] them to write in the minutes and I have to recall the oral order.
ATTY. SAVELLANO:
I don't know of the recall order, I was not furnished a copy. [A]t [a]ny rate, may we ask that this Police Officer (sic) or this, whoever the complainant be made to explain why they failed to arrive on so many dates and why they arrived too late when this case was called?
COURT:
Fiscal, it is your fault, you have to ask your witness to explain.
FIS. CEDILLO:
Yes, your Honor, after this witness's testimony.
ATTY. SAVELLANO:
If your Honor please, we are asking ... (Interrupted).
x x x x
COURT:
The dismissal [was] set aside before I [left] on that same day. Anyway, that is my order, I [have] set [it] aside because the police (sic) arrived.
x x x x
COURT:
Anyway, the court will hear the witness.
The Order of Sept. 25 for provisional dismissal is hereby recalled and set aside, without prejudice to whatever the defense would want to file by way of Motion regarding this matter.
[41] Echaus v. Court of Appeals, G.R. No. 57343, July 23, 1990, 187 SCRA 672, 674 and 679.
[42] Id. at 679-680.
[43] See CA rollo, pp. 42-43.
[44] Id. at 83-84.
[45] As cited in People v. Kimura, G.R. No. 130805, April 27, 2004, 428 SCRA 51, 69 and People v. Magat, G.R. No. 179939, September 29, 2008, 567 SCRA 86, 95-96.
[46] G.R. No. 184952, October 11, 2010.
[47] Id. at 19. Emphasis supplied.
[48] People v. Hernandez, G.R. No. 184804, June 18, 2009, 589 SCRA 625, 645.
[49] TSN, Special Investigator Edgardo Kawada, Sr., October 2, 2001, pp. 27-29.
[50] Records, p. 7.
[51] Records at 7 and 8.
[52] Id. at 8.
[53] TSN, Special Investigator Edgardo Kawada, Sr., October 2, 2001, pp. 27-29, to wit:
FIS. CEDILLO:
Q. Now, you said in the deal Baida Salak gave you the shabu. What was the appearance of that shabu that was given to you?
WITNESS:
A. It was already in three (3) separate plastic sachet[s].
COURT:
What was the appearance of that?
WITNESS:
A. White crystalline substance. Three (3) plastic sachet[s], in separate.
FIS. CEDILLO:
Q. Was that given to you in fair or wrapped in plastic?
WITNESS:
A. It was wrapped in a plastic bag, but when she presented to me, she brought that out from the plastic.
FIS. CEDILLO:
I am showing to you [a] brown envelope consisting or rather containing the three (3) plastic sachet[s]. Will you please take a look at the plastic sachet and tell us the relation of that to the one as you said accused was given (sic) to you?
WITNESS:
A. These are the same plastic sachet we confiscated from the accused.
FIS. CEDILLO:
Q. Why do you say that is the very item?
WITNESS:
A. Because we placed a marking[,] sir.
FIS. CEDILLO:
Q. What marking?
WITNESS:
A. Remington[,] sir, my code name.
FIS. CEDILLO:
Q. How about this one REM 1, 2, 3?
WITNESS:
A. That's the marking.
FIS. CEDILLO:
It has already [been] marked, the envelope as Exhibit D and the contents as D-1, D-2 and D-3[,] respectively.
[54] People v. Araneta, G.R. No. 191064, October 20, 2010, p. 13; and People v. Domado, G.R. No. 172971, June 16, 2010, 621 SCRA 73, 84, citing People v. Hernandez, supra note 47.
[55] See People v. Uy, G.R. No. 129019, August 16, 2000, 338 SCRA 232, 252.
[56] People v. Gonzaga, supra note 45 at 17.
[57] People v. Razul, G.R. No. 146470, November 22, 2002, 392 SCRA 553, 560.
The Information dated May 25, 2001 filed against appellant reads:
That on or about the 23rd day of May, 2001, in Quezon City, Philippines, the said accused, conspiring, confederating with other persons whose true names, identities and personal circumstances have not as yet been ascertained and mutually helping each other, not having been authorized by law to sell, dispense, deliver, transport or distribute any regulated drug, did, then and there wilfully and unlawfully sell or offer for sale 305.4604 grams of methamphetamine hydrochloride (shabu) which is a regulated drug.
CONTRARY TO LAW.[6]
When arraigned, appellant pleaded not guilty.
On September 25, 2001, following the failure of prosecution witnesses to attend scheduled hearings for the fifth consecutive time despite the issuance of subpoenas, the trial court orally ordered the provisional dismissal of the case.[7] Shortly after the order was given, however, the prosecution witnesses from the National Bureau of Investigation (NBI), Special Investigators Edgardo Kawada, Sr. and Raoul Manguerra, arrived. Hence, the order was recalled.[8] Trial then ensued.
The prosecution presented two witnesses: NBI Special Investigator Kawada, who acted as the poseur-buyer in the buy-bust operation, and Supervising Agent Dominador Villanueva III, who acted as backup during the NBI operation. Their version of facts is as follows:
In the morning of May 23, 2001, the NBI Special Task Force (STF) received information from one of their assets that a certain "Baida" is engaged in selling shabu at Litex Market in Commonwealth Avenue, Quezon City. Immediately, NBI-STF agents formed a team composed of Atty. Cesar Bacani, Supervising Agents Rommel Vallejo and Dominador Villanueva III, Special Investigators Raoul Manguerra, Job Gayas, Charlemagne Veloso, Eric Isidro, Eduardo Villa, Rolan Fernandez and Edgardo Kawada, Sr. to conduct a surveillance operation.[9] A briefing was held at around 12:00 noon[10] before the team proceeded to Litex Market. At 2:00 p.m., they arrived thereat.[11]
There, the NBI agents waited in strategic locations so they could see their asset while the latter talked with appellant. After a brief conversation with appellant, the asset informed the NBI team that appellant was in possession of shabu and was willing to make a transaction.[12] Thus, a clearance to conduct a buy-bust operation was issued by the Chief of the NBI-STF, Atty. Max Salvador, and a poseur-buyer was designated in the person of Special Investigator Kawada.
The asset then told appellant that he has a buyer. Appellant instructed the asset to go to Greenwich Pizza Parlor in Fairview, Quezon City with the buyer.[13] As instructed, the asset and Kawada, followed by the rest of the team, drove to Greenwich Pizza, but appellant later called the asset on the latter's cellular phone and instructed the latter to go instead to McDonald's restaurant, which was just across Greenwich Pizza. Kawada and the asset obliged.[14] After an hour, appellant arrived, accompanied by two men, whom she later introduced to Kawada and the asset as her husband, Karim Salak, and a certain Boy Life.[15]
The asset introduced Kawada to appellant and the two discussed the terms of the transaction. Kawada agreed to pay P60,000 per 100 grams of shabu, or a total of P180,000 for the 300 grams which appellant will supply. Kawada suggested that the exchange be made at the parking lot of Ever Gotesco Mall along Commonwealth Avenue, but appellant insisted that the venue be at Litex Market.[16] Kawada agreed so appellant boarded his vehicle with the NBI asset, and the three proceeded to Litex Market.
Upon arriving at Litex Market, appellant alighted and left to retrieve the drugs. She returned 30 minutes later, followed by Karim and Boy Life, this time carrying a plastic bag. Appellant entered Kawada's car, while her two companions stood guard outside.[17]
Inside the car, appellant showed Kawada three small heat-sealed plastic sachets packed inside a bigger plastic bag. Appellant gave the plastic bag containing the three heat-sealed sachets to Kawada who, in turn, gave P180,000 in genuine bills[18] to the former. The money was mixed with three one-hundred peso bills earlier marked with "ECK 5/23/01"[19] representing Kawada's initials and the date of the entrapment operation. While appellant was busy counting the money, Kawada identified himself as an NBI operative and arrested appellant. Meanwhile, outside Kawada's vehicle, appellant's two male companions, perhaps sensing that something was amiss, instantly took off and mingled with the crowd at Litex Market as other NBI agents rushed towards the location of Kawada's vehicle.[20]
Appellant was brought to the NBI office,[21] while the three heat-sealed plastic sachets, marked as "REM 1," "REM 2," and "REM 3," were submitted by NBI Agent Raoul Manguerra, upon Kawada's endorsement, to the NBI Forensic Chemistry Division for chemical analysis at 7:15 in the morning of the following day, May 24, 2001.[22]
A Certification[23] dated May 24, 2001 was issued by NBI Forensic Chemist II Juliet Gelacio-Mahilum stating that the white substance contained in the three heat-sealed plastic sachets, marked "REM 1," "REM 2" and "REM 3," with a total weight of 305.4604 grams, yielded positive results for methamphetamine hydrochloride or shabu, a regulated drug.[24]
The defense, for its part, denied the charges and presented the following version of facts:
In the morning of May 23, 2001, while appellant and her husband Zaldy Pinorac were busy tending their stall at Manggahan Market in Commonwealth Avenue corner Litex Road, Quezon City, an acquaintance named Mila arrived. Mila was accompanied by two companions, one of whom was introduced as Aminola Kawada. The group talked to Zaldy while appellant busied herself in their store. Thereafter, Zaldy asked appellant if she could accompany Mila's group to McDonald's in Fairview as Mila's group wanted to buy VCD from Boy Life,[25] who, according to appellant, is her second cousin and whose real name is Karim Salak.[26] Appellant complied.
At McDonald's restaurant, appellant found Boy Life already waiting for them as Zaldy notified Boy Life over the phone. Appellant introduced Mila's group to Boy Life, and was asked to order some food. Appellant ate with the group and thereafter excused herself and returned to their store.[27]
At the store, Zaldy told her that Boy Life called him on the cell phone and disclosed that he sold 100 grams of shabu to Mila and her companions. Appellant claims that she got angry with Zaldy for putting her in such a precarious situation.[28]
Around seven o'clock that evening, Boy Life dropped by appellant's store, but appellant ignored him. An hour later, she heard a gunfire. She looked outside her store and saw Boy Life being chased by two men. When the men failed to apprehend Boy Life, they went to her stall accompanied by Aminola Kawada. Aminola Kawada's group grabbed Zaldy, but Zaldy resisted and ran. He was chased by Aminola Kawada's group but the latter also failed to arrest him so they returned to appellant's store and forcibly took her. Mangayao Angne, a fellow vendor who tried to intervene and help appellant, was also arrested. They were both brought to the NBI office in Taft Avenue, Manila,[29] but Angne was released the following day.[30]
Zaldy testified that he returned to their store almost an hour after the incident and learned from his fellow vendors that his wife and Angne were arrested. On May 24, 2001, he received a call from Aminola Kawada demanding information about Boy Life's whereabouts. Kawada also allegedly asked for P300,000 in exchange for his wife's release, but when he told Aminola that he does not have that much money, Aminola reduced the amount to P100,000.[31]
Two more witnesses, Mangrose Ampaso and Macapintal Angne corroborated appellant's testimony. Both men also own market stalls at Litex Market and claimed that they were present near the vicinity of appellant's store when the NBI operatives nabbed her on the night of May 23, 2001.
On October 11, 2001, the defense filed a motion requesting for a quantitative or purity analysis on the shabu specimen allegedly confiscated from the appellant.[32] The RTC granted the said motion and directed NBI Forensic Chemist Juliet Gelacio-Mahilum to conduct the necessary tests.[33] A Certification, albeit dated August 1, 2001, was thereafter issued by NBI Forensic Chemist Gelacio-Mahilum stating:
THIS CERTIFIES that representative samples taken from DD-01-480 specimen marked "REM-1", "REM-2" and "REM-3", when subjected to quantitative analysis using HIGH PRESSURE LIQUID CHROMATOGRAPHY (HPLC) gave the following result:
x x x x
NET WEIGHT "REM-1" = 114.5932 grams "REM-2" = 97.0434 grams "REM-3" = 93.8238 grams
Total Net weight of specimen = 305.4604 grams
Average % Purity = 87.99%[34]
On February 18, 2002, the RTC promulgated its decision finding appellant guilty beyond reasonable doubt of the crime charged. The dispositive portion of the trial court's decision reads:
ACCORDINGLY, judgment is hereby rendered finding BAIDA SALAK OR SADAK, GUILTY beyond reasonable doubt as principal in the sale of methylamphetahmine (sic) hydrochloride or shabu weighing 305.4604 grams[,] in violation of RA 6425 as charged, and she is sentenced to suffer a jail term of reclusion perpetua and to pay a fine of P500,000.00. Cost versus accused.
SO ORDERED.[35]
Appellant appealed her conviction to the CA, but the CA affirmed the RTC decision in toto.[36] The CA also denied appellant's motion for reconsideration for lack of merit.[37] Hence this appeal.
Appellant alleges that:
THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED OF THE CRIME CHARGED WHEN THE RIGHT OF THE ACCUSED TO DUE PROCESS WAS VIOLATED; AND
THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED WHEN THE EVIDENCE OF THE PROSECUTION WAS NOT SUFFICIENT TO COMPLY WITH THE QUANTUM OF EVIDENCE REQUIRED BY LAW FOR A CONVICTION AND WHEN THE EVIDENCES OF THE PROSECUTION WERE INCONSISTENT AND CONTRARY TO COMMON HUMAN EXPERIENCE.[38]
The appeal lacks merit.
Appellant assails the continuation of the trial against her notwithstanding the order of provisional dismissal earlier issued by the trial court following the repeated failure of the prosecution witnesses to attend scheduled hearings. Specifically, appellant argues that the case should not have been revived without the proper motion from the prosecution.
Appellant's contention is without merit. A careful perusal of the records shows that the provisional dismissal, which was declared in open court by the judge on September 25, 2001, was never reduced into writing after Special Investigators Kawada and Manguerra appeared at the last minute of the said hearing.[39] Moreover, it appears that the said issue was brought up by appellant's counsel in the next hearing and was settled when the trial court judge issued an order, again in open court, recalling and setting aside the September 25, 2001 order provisionally dismissing the case.[40]
It bears emphasizing that an oral order has no juridical existence until and unless it had been reduced into writing and promulgated, i.e. delivered by the judge to the clerk of court for filing, release to the parties and implementation.[41] In fact, even if it had been written and promulgated, or even if it had already been properly served on the parties, it is still plainly within the power of the judge to recall it and set it aside because every court has the inherent power, among others, to amend and control its process and orders so as to make them conformable to law and justice.[42]
Appellant likewise faults the trial court in convicting her despite the prosecution's alleged failure to establish the integrity of the shabu confiscated from her and presented in court. She points out that the NBI-STF team did not comply with the requirement that a physical inventory and photograph of the confiscated drugs be taken,[43] as provided in Dangerous Drugs Board Regulation No. 3, Series of 1979, as amended by Dangerous Drugs Board Regulation No. 2, Series of 1990. Neither did the prosecution present the buy-bust money. These shortcomings, according to her, create reasonable doubt.
The Office of the Solicitor General, meanwhile, counters that the failure of the NBI-STF operatives to comply with the documentation and reportorial requirement, even if true, does not affect the actual conduct and regularity of the buy-bust operation itself because of the presumption of regularity in the performance of official functions which should be upheld here in the absence of evidence militating against its application.[44]
Appellant's assertion fails.
Dangerous Drugs Board Regulation No. 3, Series of 1979, as amended by Dangerous Drugs Board Regulation No. 2, Series of 1990 reads:
Subject: Amendment of Board Regulation No. 7, series of 1974, prescribing the procedure in the custody of seized prohibited and regulated drugs, instruments, apparatuses, and articles specially designed for the use thereof.
x x x x
SECTION 1. All prohibited and regulated drugs, instruments, apparatuses and articles specially designed for the use thereof when unlawfully used or found in the possession of any person not authorized to have control and disposition of the same, or when found secreted or abandoned, shall be seized or confiscated by any national, provincial or local law enforcement agency. Any apprehending team having initial custody and control of said drugs and[/or] paraphernalia, should immediately after seizure or confiscation, have the same physically inventoried and photographed in the presence of the accused, if there be any, and/or his representative, who shall be required to sign the copies of the inventory and be given a copy thereof. Thereafter the seized drugs and paraphernalia shall be immediately brought to a properly equipped government laboratory for a qualitative and quantitative examination.
The apprehending team shall: (a) within forty-eight (48) hours from the seizure inform the Dangerous Drugs Board by telegram of said seizure, the nature and quantity thereof, and who has present custody of the same, and (b) submit to the Board a copy of the mission investigation report within fifteen (15) days from completion of the investigation.[45]
The records do not show that the NBI-STF team complied with the aforementioned procedure. Nevertheless, such failure is insufficient ground to acquit appellant.
In People v. Gonzaga,[46] wherein the very same issue was raised, we explained that:
While it appears that the buy-bust team failed to comply strictly with the procedure outlined above, the same does not overturn the presumption of regularity in the performance of their duty. A violation of the regulation is a matter strictly between the Dangerous Drugs Board and the arresting officers and is totally irrelevant to the prosecution of the criminal case since the commission of the crime of illegal sale of a prohibited drug is considered consummated once the sale or transaction is established and the prosecution thereof is not undermined by the arresting officers' inability to conform to the regulations of the Dangerous Drugs Board.
Further, the integrity of the evidence is presumed to be preserved, unless there is a showing of bad faith, ill will, or proof that the evidence has been tampered with.[47]
Moreover, non-compliance with the said regulation is not fatal to the prosecution as it does not render appellant's arrest illegal or the seized items inadmissible in evidence. What is of utmost importance is the preservation of the integrity and evidentiary value of the seized drugs as the same would be utilized in the determination of the guilt or innocence of herein appellant.[48]
A thorough review of the records of this case shows that despite the NBI-STF's non-compliance with said regulation, the integrity and evidentiary value of the confiscated drugs was nonetheless preserved. Evidence shows that the three heat-sealed plastic sachets of shabu, after being confiscated from appellant on the night of May 23, 2001, were duly marked by poseur-buyer Kawada as "REM-1," "REM-2" and "REM-3" using his own codename.[49] That same night, at the NBI-STF office, Kawada prepared the disposition form with file number DD-010480 indicating the transmittal of the same three heat-sealed sachets of shabu for laboratory examination. The said disposition form was duly noted by NBI-STF Chief Atty. Max Salvador.[50] The following day, the confiscated drugs including the disposition form Kawada prepared, were delivered and submitted by Agent Raoul Manguerra to the NBI Forensic Chemistry Division at 7:15 in the morning and were duly received by NBI Forensic Chemist Gelacio-Mahilum.[51] As indicated in her Certification dated May 24, 2001, the three plastic sachets marked "REM-1," "REM-2," and "REM-3" were still heat-sealed when she received them. She also certified that the three sachets have a total weight of 305.4604 grams and gave positive results for methamphetamine hydrochloride or shabu.[52] When presented during the trial, these specimens were also positively identified by Kawada as the very same sachets which were handed to him by the appellant.[53]
It is also worthy to note that appellant never alleged that the drugs presented during the trial have been tampered with. Neither did appellant challenge the admissibility of the seized items when these were formally offered as evidence. In the course of the trial, the seized shabu were duly marked, made the subject of examination and cross-examination, and eventually offered as evidence, yet at no instance did the appellant manifest or even hint that there were lapses in the safekeeping of the seized items as to affect their admissibility, integrity and evidentiary value. It was only during her appeal that she raised the issue of non-compliance with the said regulation. Settled is the rule that objections to the admissibility of evidence cannot be raised for the first time on appeal; when a party desires the court to reject the evidence offered, he must so state in the form of objection. Without such objection, he cannot raise the question for the first time on appeal.[54]
It should also be noted that appellant failed to present evidence to show that the NBI-STF team was impelled by improper motives to testify against her. She merely gave the bare assertion that she was arrested by the NBI operatives to be used as leverage in pressuring her husband to divulge the whereabouts of alias Boy Life.
It must be stressed that the shabu confiscated from appellant weighed 305.4604 grams with 87.99% average purity. To the Court, the difficulty and enormous risk of obtaining such huge amount of regulated drugs, with a street value of at least P180,000, only for the purpose of incriminating and extorting money from an individual who was not shown to be of good financial standing and business importance, renders the allegation highly improbable.[55] If the NBI-STF operatives indeed wanted to frame-up appellant and extort money from her or her relatives, a small quantity of shabu would have been sufficient to cause her arrest.
Finally, as to appellant's argument that she should have been acquitted since the prosecution failed to present the buy-bust money used during the operation, again, the argument is without merit. Failure to present the buy-bust money is not indispensable in drug cases since it is merely corroborative evidence, and the absence thereof does not create a hiatus in the evidence for the prosecution provided the sale of dangerous drugs is adequately proven and the drug subject of the transaction is presented before the court. Neither law nor jurisprudence requires the presentation of any money used in the buy-bust operation.[56]
In crimes involving the sale of illegal drugs, two essential elements must be satisfied: (1) identities of the buyer, the seller, the object and the consideration, and (2) the delivery of the thing sold and the payment for it.[57] These elements were satisfactorily proven by the prosecution beyond reasonable doubt through testimonial, documentary and object evidence presented during the trial.
WHEREFORE, the appeal is DISMISSED. The Decision dated February 21, 2007 and Resolution dated July 3, 2007 of the Court of Appeals in CA-G.R. CR.-H.C. No. 01740, affirming the Decision of the Regional Trial Court (RTC), Branch 103, of Quezon City in Criminal Case No. Q-01-100879 is AFFIRMED.
With costs against the accused-appellant.
SO ORDERED.
Carpio Morales, (Chairperson), Bersamin, Abad,* and Sereno, JJ., concur.
* Designated additional member per Special Order No. 940 dated February 7, 2011.
[1] Rollo, pp. 3-22. Penned by Associate Justice Marina L. Buzon, with Associate Justices Edgardo F. Sundiam and Monina Arevalo-Zenarosa, concurring.
[2] CA rollo, pp. 158-159.
[3] Records, pp. 103-111. Dated February 18, 2002. Penned by Judge Jaime N. Salazar, Jr.
[4] SEC. 15.Sale, Administration, Dispensation, Delivery, Transportation and Distribution of Regulated Drugs. -The penalty of reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos shall be imposed upon any person who, unless authorized by law, shall sell, dispense, deliver, transport or distribute any regulated drug.
x x x x
[5] The Death Penalty Law.
[6] CA rollo, p. 6.
[7] Records, pp. 33, 42, 45-49, and 52-55.
[8] Id. at 56; See TSN, October 2, 2001, p. 2.
[9] TSN, Special Investigator Edgardo Kawada, Sr., October 2, 2001, pp. 8-10.
[10] TSN, Supervising Agent Dominador Villanueva III, October 9, 2001, p. 4.
[11] TSN, Special Investigator Edgardo Kawada, Sr., October 2, 2001, p. 11.
[12] Id. at 13.
[13] Id. at 14.
[14] Id. at 15-17, 40-41.
[15] Id. at 17-18.
[16] Id. at 18-20.
[17] Id. at 21-22, 24.
[18] Id. at 23.
[19] Records, p. 9 and reverse unnumbered page.
[20] TSN, Special Investigator Edgardo Kawada, Sr., October 2, 2001, pp. 22-25.
[21] Records, pp. 13-14.
[22] Id. at 7-8.
[23] Id. at 8.
[24] See also Dangerous Drugs Report No. DD-01-480 dated May 31, 2001 issued by NBI Forensic Chemist II Juliet Gelacio-Mahilum containing the same information and result. (Records, p. 118, Exh. "C".)
[25] TSN, Baida Salak, November 27, 2001, pp. 6-10.
[26] TSN, Baida Salak, December 4, 2001, p. 2.
[27] TSN, Baida Salak, November 27, 2001, pp. 11-13.
[28] Id. at 14-15.
[29] Id. at 16-28.
[30] Id. at 32.
[31] TSN, Zaldy Pinorac, December 18, 2001, pp. 24-25.
[32] Records, pp. 66-68.
[33] Id. at 69.
[34] Id. at 120, Exh. "E". The said Certification was also noted in the Minutes of the Trial, id. at 71.
[35] Id. at 111.
[36] CA rollo, p. 141. The dispositive portion of the Court of Appeals' February 21, 2007 Decision reads:
WHEREFORE, the Decision appealed from is AFFIRMED in toto.
SO ORDERED.
[37] Id. at 158.
[38] Id. at 40.
[39] Records, p. 56.
[40] TSN, October 2, 2001, pp. 2-5, the pertinent portion of which reads:
ATTY. SAVELLANO:
If your Honor please, may we ask for the implementation of the Order, your Honor, of Sept. 25 for the dismissal of this case because the accused was encarcerated (sic) in the City Jail.
COURT:
But last [September] 25, the police (sic) arrived, although after we have already dismissed the proceeding orally, that is why we ask[ed] them to write in the minutes and I have to recall the oral order.
ATTY. SAVELLANO:
I don't know of the recall order, I was not furnished a copy. [A]t [a]ny rate, may we ask that this Police Officer (sic) or this, whoever the complainant be made to explain why they failed to arrive on so many dates and why they arrived too late when this case was called?
COURT:
Fiscal, it is your fault, you have to ask your witness to explain.
FIS. CEDILLO:
Yes, your Honor, after this witness's testimony.
ATTY. SAVELLANO:
If your Honor please, we are asking ... (Interrupted).
x x x x
COURT:
The dismissal [was] set aside before I [left] on that same day. Anyway, that is my order, I [have] set [it] aside because the police (sic) arrived.
x x x x
COURT:
Anyway, the court will hear the witness.
The Order of Sept. 25 for provisional dismissal is hereby recalled and set aside, without prejudice to whatever the defense would want to file by way of Motion regarding this matter.
[41] Echaus v. Court of Appeals, G.R. No. 57343, July 23, 1990, 187 SCRA 672, 674 and 679.
[42] Id. at 679-680.
[43] See CA rollo, pp. 42-43.
[44] Id. at 83-84.
[45] As cited in People v. Kimura, G.R. No. 130805, April 27, 2004, 428 SCRA 51, 69 and People v. Magat, G.R. No. 179939, September 29, 2008, 567 SCRA 86, 95-96.
[46] G.R. No. 184952, October 11, 2010.
[47] Id. at 19. Emphasis supplied.
[48] People v. Hernandez, G.R. No. 184804, June 18, 2009, 589 SCRA 625, 645.
[49] TSN, Special Investigator Edgardo Kawada, Sr., October 2, 2001, pp. 27-29.
[50] Records, p. 7.
[51] Records at 7 and 8.
[52] Id. at 8.
[53] TSN, Special Investigator Edgardo Kawada, Sr., October 2, 2001, pp. 27-29, to wit:
FIS. CEDILLO:
Q. Now, you said in the deal Baida Salak gave you the shabu. What was the appearance of that shabu that was given to you?
WITNESS:
A. It was already in three (3) separate plastic sachet[s].
COURT:
What was the appearance of that?
WITNESS:
A. White crystalline substance. Three (3) plastic sachet[s], in separate.
FIS. CEDILLO:
Q. Was that given to you in fair or wrapped in plastic?
WITNESS:
A. It was wrapped in a plastic bag, but when she presented to me, she brought that out from the plastic.
FIS. CEDILLO:
I am showing to you [a] brown envelope consisting or rather containing the three (3) plastic sachet[s]. Will you please take a look at the plastic sachet and tell us the relation of that to the one as you said accused was given (sic) to you?
WITNESS:
A. These are the same plastic sachet we confiscated from the accused.
FIS. CEDILLO:
Q. Why do you say that is the very item?
WITNESS:
A. Because we placed a marking[,] sir.
FIS. CEDILLO:
Q. What marking?
WITNESS:
A. Remington[,] sir, my code name.
FIS. CEDILLO:
Q. How about this one REM 1, 2, 3?
WITNESS:
A. That's the marking.
FIS. CEDILLO:
It has already [been] marked, the envelope as Exhibit D and the contents as D-1, D-2 and D-3[,] respectively.
[54] People v. Araneta, G.R. No. 191064, October 20, 2010, p. 13; and People v. Domado, G.R. No. 172971, June 16, 2010, 621 SCRA 73, 84, citing People v. Hernandez, supra note 47.
[55] See People v. Uy, G.R. No. 129019, August 16, 2000, 338 SCRA 232, 252.
[56] People v. Gonzaga, supra note 45 at 17.
[57] People v. Razul, G.R. No. 146470, November 22, 2002, 392 SCRA 553, 560.