SECOND DIVISION

PEOPLE OF THE PHILIPPINES,

G.R. No. 175319

Appellee,

Present:

CARPIO, J., Chairperson,

- versus -

BRION,
DEL CASTILLO,
ABAD, and
PEREZ, JJ.

JOSELITO NOQUE y GOMEZ,

Promulgated:

Appellant.

January 15, 2010

x-------------------------------------------------------------------------x

DECISION

DEL CASTILLO, J.:

The illicit trade and use of dangerous drugs destroys the moral fiber of society. It
has eroded and disrupted family life, increased the transmission of sexually related
diseases, resulted in permanent and fatal damage to the physical and mental health, and
wasted dreams, opportunities and hopes for a better future. As an ardent sentinel of the
peoples rights and welfare, this Court shall not hesitate to dispense justice on people who
engage in such an activity.1[1] The commitment to this end is exemplified in this appeal.

The Charges

The appeal stems from two Informations filed before the Regional Trial Court
(RTC) of Manila, which were subsequently docketed as Criminal Case Nos. 01-189458
and 01-189459, and raffled to Branch 35 of said court. The Information in Criminal Case
No. 01-189458 charging appellant Joselito Noque y Gomez with violation of Section 15,
Article III in relation to Section 21 (e), (f), (m), (o), Article 1 of Republic Act (RA) No.
6425, as amended by Presidential Decree (PD) No. 1683 and as further amended by RA
7659 reads:

That on or about January 30, 2001, in the City of Manila, Philippines, the said
accused, not having been authorized by law to sell, dispense, deliver, transport or
distribute any regulated drug, did then and there willfully, unlawfully and knowingly sell
or offer for sale, dispense, deliver, transport or distribute 2.779 (two point seven seven
nine grams) and 2.729 (two point seven two nine grams) of white crystalline substance
known as shabu containing methamphetamine hydrochloride, which is a regulated drug.
Contrary to law.2[2]
1

[1]

See People v. San Juan, 427 Phil. 236, 247-248 (2002).

[2]

Records, p. 2.

On the other hand, the Information in Criminal Case No. 01-189459 contains the
following accusatory allegations for violation of Section 16, Article III in relation to
Section 2 (e-2) Article I of RA 6425 as amended by Batas Pambansa (BP) Bilang 179
and as further amended by RA 7659:

That on or about January 30, 2001, in the City of Manila, Philippines, the said
accused without being authorized by law to possess or use any regulated drug, did then
and there willfully, unlawfully and knowingly have in his possession and under his
custody and control (six seven nine point two one five grams) 679.215 grams of white
crystalline substance known as shabu containing methamphetamine hydrochloride, a
regulated drug, without the corresponding license or prescription thereof.
Contrary to law.3[3]

During his arraignment on July 23, 2001, appellant pleaded not guilty to both
charges. Pre-trial conference was conducted and upon its termination a joint trial ensued.

Version of the Prosecution

At 9 oclock in the evening of January 30, 2001, a confidential informant of

Senior Police Officer 4 (SPO4) Norberto Murillo, went to Police Station No. 4 of the
Western Police District (WPD) to tip off on the drug trafficking activities of the appellant
in Malate, Manila. SP04 Murillo immediately directed Police Officers (POs) Christian
3

[3]

Id. at 3.

Balais (Balais) and Dionisio Borca (Borca) to conduct surveillance in the area mentioned
by the informant. The surveillance confirmed appellants illegal operations being
conducted at No. 630 San Andres Street, Malate, Manila. Thereafter, SP04 Murillo
formed and led a buy-bust team with POs Balais, Borca, Ramon Pablo, Roberto Godoy,
Edgardo Book, Bernard Mino, Rodante Bollotano, and Melchor Barolo as members.
PO1 Balais was designated as poseur-buyer and was provided with 10 pieces of 100 peso
bills as buy-bust money.

The buy-bust team, together with the informant, proceeded to the aforementioned
address and upon arrival thereat, positioned themselves outside the appellants house. PO1
Balais and the informant thereafter called out the appellant, who welcomed the two and
brought them to his bedroom. The informant asked the appellant if he had P1,000.00
worth of methamphetamine hydrochloride or shabu then pointed to PO1 Balais as the
actual buyer. When PO1 Balais handed the marked money to the appellant, the latter
brought out from under a table a pranela bag from which he took two plastic sachets
containing white crystalline granules suspected to be shabu. The informant slipped out of
the house as the pre-arranged signal to the buy-bust team that the sale had been
consummated.
After seeing the informant leave, the team entered appellants house. SPO4 Murillo
frisked the appellant and recovered the buy-bust money. He also confiscated the pranela
bag that contained a large quantity of crystalline granules suspected to be shabu. The two
persons who were in a pot session with the appellant at the time of the raid were likewise
arrested and brought to the WPD Station No. 9 for investigation.

The seized articles were taken to the police station and submitted to the crime
laboratory for examination to determine the chemical composition of the crystalline
substance. Police Inspector (P/Insp.) and Forensic Chemical Officer Miladenia Tapan
examined one self-sealing transparent plastic bag with markings JNG containing 679.215
grams of white crystalline granules; and two heat-sealed transparent plastic sachets each
containing white crystalline substance, pre-marked JNG-1 weighing 2.779 grams and
JNG-2weighing 2.729 grams. The qualitative examinations yielded positive results for
ephedrine, a regulated drug.

Version of the Defense

The appellant gave a different version of the events that transpired. He testified
that he was in his house in the evening of January 23, 2001 when six policemen led by
SPO4 Murillo entered and arrested an unidentified occupant of the room next to his. The
arresting team returned after 30 minutes and apprehended another person. When they
came back the third time, they took him with them to WPD Station No. 9 where his
wallet, belt and shoes were taken. While under detention, SPO4 Murillo ordered him to
admit selling illegal substances but he refused. He was released on January 26, 2001 only
to be rearrested at around 9 oclock in the evening on January 30, 2001 when SPO4
Murillo and his team returned to his house and took him at gunpoint to the police station
where he was detained for 24 hours. Police officers presented him later to Mayor Lito
Atienza and General Avelino Razon for a press conference.

Ruling of the Regional Trial Court

In its Decision4[4] dated February 28, 2003, the trial court convicted the appellant
of both charges. It declared that the evidence adduced by the prosecution established with
moral certainty his guilt for committing the crimes in the manner narrated in the
Informations. The testimonies of police officers that they caught appellant in flagrante
delicto of selling and possessing a dangerous drug are clear and positive evidence that
deserve more evidentiary weight than appellants defenses of denial and frame-up, which
are mere negative and self-serving assertions unsubstantiated by clear and convincing
evidence. The trial court also ruled that it cannot deviate from the presumption of
regularity in the performance of duty on the part of the police officers since no ill motives
were ascribed to them that would entice them to testify falsely against the appellant.

The trial court also held that while the Informations alleged methamphetamine
hydrochloride as the drug seized from the appellant, the drug actually confiscated which
was ephedrine, is a precursor of methamphetamine, i.e., methamphetamine is an element
of, and is present in ephedrine. Ephedrine is the raw material while methamphetamine is
its refined product. Both drugs have the same chemical formula except for the presence
of a single atom of oxygen which when removed by means of chemical reaction changes
ephedrine to methamphetamine. Thus, the trial court ruled that the appellant can be
convicted of the offenses charged, which are included in the crimes proved. The trial
court further held that under Section 4, Rule 120 of the Rules of Court, a variance in the
offense charged in the complaint or information and that proved shall result in the
conviction for the offense charged which is included in the offense proved.
4

[4]

Id. at 140-153; penned by Judge Ramon P. Makasiar.

In determining the quantity of methamphetamine hydrochloride upon which the

proper imposable penalty on the appellant must be based, the trial court gave credence to
the testimony of prosecution witness, P/Insp. Tapan that a gram of ephedrine would
produce gram of methamphetamine when refined.5[5]

Conformably, the methamphetamine contents of 5.508 grams 6[6] of ephedrine in

Criminal Case No. 01-189458 would be 2.754 grams. Moreover, the methamphetamine
contents of 679.215 grams of ephedrine in Criminal Case No. 01-189459 would be
339.6075 grams.

The dispositive portion of the Decision of the trial court reads:

WHEREFORE, judgment is rendered:

In Criminal Case No. 01-189458, pronouncing accused JOSELITO NOQUE y
GOMEZ guilty beyond reasonable doubt of selling a net quantity of 2.754 grams of
methamphetamine hydrochloride without authority of law, penalized under Section 15 in
relation to Section 20 of Republic Act No. 6425, as amended, and sentencing the said
accused to the indeterminate penalty ranging from four (4) years and two (2) months of
prision correccional, as minimum, to six (6) years and one (1) day of prision mayor, as
maximum, and to pay the costs.
In Criminal Case No. 01-189459, pronouncing the same accused JOSELITO
NOQUE y GOMEZ guilty beyond reasonable doubt of possession of a net quantity of
339.6075 grams of methamphetamine hydrochloride without license or prescription,
penalized under Section 16 in relation to Section 20 of Republic Act No. 6425, as
5

[5]

TSN, October 11, 2002, p. 15.

[6]

2.729 grams plus 2.779 grams.

amended, and sentencing the said accused to the penalty of reclusion perpetua and to pay
a fine of P5,000,000.00, plus the costs.
In the service of his sentences, the full time during which the accused had been
under preventive imprisonment should be credited in his favor provided that he had
agreed voluntarily in writing to abide with the same disciplinary rules imposed on
convicted prisoner. Otherwise, he should be credited with four-fifths (4/5) only of the
time he had been under preventive imprisonment.
Exhibits B and C are ordered confiscated and forfeited in favor of the
government. Within ten (10) days following the promulgation of this judgment, the
Branch Clerk of this Court, is ordered to turn over, under proper receipt, the regulated
drug involved in these cases to the Philippine Drug Enforcement Agency (PDEA) for
proper disposal.
SO ORDERED.7[7]

Ruling of the Court of Appeals

The CA affirmed the trial courts judgment. It held that the designations in the
Informations are for violations of Sections 15 and 16 of RA 6425 that define and penalize
the crimes of illegal sale and illegal possession of regulated drugs. While the allegations
in the Informations refer to unauthorized sale and possession of shabu or
methamphetamine hydrochloride, and not of ephedrine, the allegations are however
immediately followed by the qualifying phrase which is a regulated drug. Stated
differently, the CA held that the designations and allegations in the informations are for
the crimes of illegal sale and illegal possession of regulated drugs. There being no dispute
that ephedrine is a regulated drug, pursuant to Board Resolution No. 2, Series of 1988,
issued by the Dangerous Drugs Board on March 17, 1988, the CA ruled that the appellant
7

[7]

Records, pp. 152-153.

is deemed to have been sufficiently informed of the nature of the crime with which he is
accused. The fact that the chemical structures of ephedrine and methamphetamine are the
same except for the presence of an atom of oxygen in the former strengthens this ruling.8
[8]

However, the CA modified the penalty imposed by the trial court in Criminal Case
No. 01-189458. It held that in the absence of any mitigating or aggravating circumstances
in this case, the penalty should be imposed in its medium period, ranging from six
months of arresto mayor, as minimum, to two years, four months and one day of prision
correccional, as maximum. Thus, the dispositive portion of the Decision of the CA reads:

WHEREFORE, premises considered, the February 28, 2003 Decision of the

Regional Trial Court of Manila, Branch 35, is hereby AFFIRMED with the
MODIFICATION that in Criminal Case No. 01-189458, accused-appellant is hereby
sentenced to suffer the indeterminate penalty of six (6) months of arresto mayor, as
minimum, to two (2) years, four (4) months and one (1) day of prision correccional, as
maximum.
SO ORDERED.9[9]

Our Ruling

The appeal is bereft of merit.

[8]

CA rollo, pp. 109-110.

[9]

Records, p. 17.

The prosecutions evidence satisfactorily

proved that appellant is guilty of illegal
sale of a dangerous drug.

The prosecution successfully proved that appellant violated Section 15, Article III
of RA 6425. The prosecutions evidence established the concurrence of the elements of an
illegal sale of a dangerous drug, to wit: (1) the identity of the buyer and seller, object, and
consideration; and (2) the delivery of the thing sold and the payment therefor.10[10]

In the instant case, the police officers conducted a buy-bust operation after
receiving confirmed surveillance reports that the appellant was engaged in the illicit sale
of dangerous drugs at No. 630 San Andres Street, Malate, Manila. PO1 Balais, the
designated poseur-buyer of the buy-bust team, personally identified the appellant as the
person who volunteered to sell to him P1,000.00 worth of white crystalline substance
alleged to be shabu. The police officer received this illegal merchandise after giving the
appellant the marked money as payment. Undoubtedly, the appellant is guilty of selling a
dangerous drug.
The prosecutions evidence satisfactorily
proved that appellant illegally possessed
a dangerous drug.

10 [10]

People v. Lee Hoi Ming, 459 Phil. 187, 193 (2003).

The prosecution was also successful in proving that appellant violated Section 16,
Article III of RA 6425. It adduced evidence that established the presence of the elements
of illegal possession of a dangerous drug. It showed that (1) the appellant was in
possession of an item or an object identified to be a prohibited or regulated drug, (2) such
possession is not authorized by law, and (3) the appellant was freely and consciously
aware of being in possession of the drug.11[11]

The police buy-bust team apprehended the appellant for the sale of a white
crystalline substance then proceeded to search the premises. They found a large quantity
of the same substance inside the bag that contained the two sachets of the regulated drug
sold to PO1 Balais. Appellant did not offer any explanation why he is in custody of the
said substance. Neither did the appellant present any authorization to possess the same.
Mere possession of a regulated drug per se constitutes prima facie evidence of
knowledge or animus possidendi sufficient to convict an accused absent a satisfactory
explanation of such possession the onus probandi is shifted to the accused, to explain the
absence of knowledge or animus possidendi.12[12] With the burden of evidence shifted to
the appellant, it was his duty to explain his innocence on the regulated drug seized from
his person. However, as already mentioned, he did not offer any excuse or explanation
regarding his possession thereof.

There is no evidence showing that the

police officers are actuated by ill
motives.
11 [11]

People v. Tiu Won Chua, 453 Phil. 177, 186 (2003).

12 [12]

People v. Tee, 443 Phil. 521, 551 (2003).

Likewise to be considered against the appellant is his failure to present evidence

imputing evil motive on the part of the police officers who participated in the entrapment
operation to testify falsely against him. Where there is no evidence that the principal
witness of the prosecution was actuated by ill or devious motive, the testimony is entitled
to full faith and credit.13[13]

Appellants right to be informed of the

nature and cause of the accusations was
not violated.

The only issue raised by the appellant in this petition is that his conviction for the
sale and possession of shabu, despite the fact that what was established and proven was
the sale and possession of ephedrine, violated his constitutional right to be informed of
the nature and cause of the accusations against him since the charges in the Informations
are for selling and possessing methamphetamine hydrochloride.

We agree with the findings of the CA and the trial court, as well as the testimony
of the forensic chemical officer, that the drug known as ephedrine has a central nervous
stimulating effect similar to that of methamphetamine. In fact, ephedrine is an important

13 [13]

People v. Bocalan, 457 Phil. 472, 482 (2003).

precursor used in the clandestine synthesis of methamphetamine, which in crystallized

form is methamphetamine hydrochloride.

Thus, on March 17, 1988, pursuant to Section 20(8) of RA 6425, as amended, the
Dangerous Drugs Board in its Board Regulation No. 2, S. 1988, classified as regulated
drug all raw materials of ephedrine, as well as preparations containing the said drug. The
chemical formula of ephedrine is C10 H15 NO, whereas that of methamphetamine is
C10 H15 N. The only difference between ephedrine and methamphetamine is the
presence of a single atom of oxygen in the former. The removal of the oxygen in
ephedrine will produce methamphetamine. With ephedrine containing fifty percent
(50%) of methamphetamine hydrochloride if the oxygen content in the former is
removed, the nearly 680 grams of ephedrine seized from the appellant contains about 340
grams of methamphetamine hydrochloride.

Moreover, as correctly observed by CA, the offenses designated in the

Informations are for violations of Sections 15 and 16 of RA 6425, which define and
penalize the crimes of illegal sale and possession of regulated drugs. The allegations in
the Informations for the unauthorized sale and possession of shabu or methamphetamine
hydrochloride are immediately followed by the qualifying phrase which is a regulated
drug. Thus, it is clear that the designations and allegations in the Informations are for the
crimes of illegal sale and illegal possession of regulated drugs. Ephedrine has been
classified as a regulated drug by the Dangerous Drugs Board in Board Resolution No. 2,
Series of 1988.

The CA correctly ruled that Sections 4 and 5, Rule 120 of the Rules of Court, 14
[14] can be applied by analogy in convicting the appellant of the offenses charged, which
are included in the crimes proved. Under these provisions, an offense charged is
necessarily included in the offense proved when the essential ingredients of the former
constitute or form part of those constituting the latter. At any rate, a minor variance
between the information and the evidence does not alter the nature of the offense, nor
does it determine or qualify the crime or penalty, so that even if a discrepancy exists, this
cannot be pleaded as a ground for acquittal.15[15] In other words, his right to be informed
of the charges against him has not been violated because where an accused is charged
with a specific crime, he is duly informed not only of such specific crime but also of
lesser crimes or offenses included therein.16[16]

The Penalties

In Criminal Case No. 01-189458, appellant is found guilty of violation of

Section 15, Article III of RA 6425, as amended. We explained in People
14 [14]
Sec. 4. Judgment in case of variance between allegation and proof. When there is a
variance between the offense charged in the complaint or information, and that proved, and the
offense charged is included in or necessarily includes the offense proved, the accused shall be
convicted of the offense proved which is included in the offense charged, or of the offense charged
which is included in the offense proved.
Sec. 5. When an offense includes or is included in another. An offense charged necessarily includes
the offense proved when some of the essential elements or ingredients of the former, as alleged in the
complaint or information, constitute the latter. An offense charged is necessarily included in the
offense proved, when the essential ingredients of the former constitute or form part of those
constituting the latter.
15 [15]

People v. Bunsol, 159 Phil. 846, 851 (1975).

16 [16]

See People v. Villamar, 358 Phil. 886, 894 (1998).

v. Isnani17[17] that:
Under Section 15, Article III in relation to the second paragraph of Sections 20
and 21 of Article IV of Republic Act No. 6425, as amended by Section 17 of R.A. No.
7659, the imposable penalty of illegal sale of a regulated drug (shabu), less than 200
grams, as in this case, is prision correccional to reclusion perpetua. Based on the
quantity of the regulated drug subject of the offense, the imposable penalty shall be as
follows:
QUANTITY

IMPOSABLE PENALTY

Less than one (1) gram

to 49.25 grams

prision correccional

49.26 grams to 98.50 grams

prision mayor

98.51 grams to 147.75 grams

reclusion temporal

147.76 grams to 199 grams

reclusion perpetua

The quantity of shabu involved is 0.060 grams. Pursuant to the second paragraph
of Sections 20 and 21 of Article IV of R.A. No. 6425, as amended by Section 17 of R.A.
No. 7659 (for unauthorized sale of less than 200 grams of shabu) and considering our
ruling in the above case, the imposable penalty is prision correccional.
Applying the Indeterminate Sentence Law, and there being no aggravating or
mitigating circumstance that attended the commission of the crime, the maximum period
is prision correccional in its medium period which has a duration of 2 years, 4 months
and 1 day to 4 years and 2 months. The minimum period is within the range of the
penalty next lower in degree which is arresto mayor, the duration of which is 1 month
and 1 day to 6 months. Hence, appellant should be sentenced to 6 months of arresto
mayor, as minimum, to 2 years, 4 months and 1 days of prision correctional in its
medium period, as maximum.

In Criminal Case No. 01-189458, the quantity of the prohibited drug seized from
appellant is 2.754 grams. Accordingly, the Court of Appeals correctly modified the

17 [17]
G.R. No. 133006, June 9, 2004, 431 SCRA 439, 456-457, citing People v. Tira, G.R. No.
139615, May 28, 2004, 430 SCRA 134.

penalty imposed by the trial court to six months of arresto mayor, as minimum, to two
years, four months and one day of prision correccional, as maximum.

As regards Criminal Case No. 01-189459, Section 16, Article III of RA 6425, as
amended, provides for the penalty of reclusion perpetua to death and a fine ranging from
P500,000.00 to P10 million upon any person who shall possess or use any regulated drug
without the corresponding license or prescription. Section 20 of RA 6425, as amended,
further provides that the penalty imposed for the offense under Section 16, Article III
shall be applied if the dangerous drug involved is 200 grams or more of shabu. In this
case, the appellant was found in illegal possession of 339.6075 grams of prohibited drug.
Therefore, both the trial court and the Court of Appeals correctly imposed the penalty of
reclusion perpetua and a fine of P500,000.00 to appellant.

WHEREFORE, the Decision of the Court of Appeals in CA-G.R. CR-H.C. No.

00684 is AFFIRMED.

SO ORDERED.

MARIANO C. DEL CASTILLO

Associate Justice

WE CONCUR:

ANTONIO T. CARPIO
Associate Justice
Chairperson

ARTURO D. BRION

ROBERTO A. ABAD

Associate Justice

Associate Justice

JOSE P. PEREZ
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the Courts
Division.

ANTONIO T. CARPIO

Associate Justice
Chairperson, Second Division

C E R T I F I C AT I O N

Pursuant to Section 13, Article VIII of the Constitution, and the Division
Chairpersons attestation, it is hereby certified that the conclusions in the above
Decision had been reached in consultation before the case was assigned to the
writer of the opinion of the Courts Division.

REYNATO S. PUNO
Chief Justice