Republic of the Philippines

SUPREME COURT 
Manila

SECOND DIVISION

G.R. No. 175319 :: January 15, 2010

PEOPLE OF THE PHILIPPINES, Appellee vs. JOSELITO NOQUE y

GOMEZ, Appellant.

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 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

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

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 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 hadP1,000.00 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-
2"weighing 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 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.

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

Conformably, the methamphetamine contents of 5.508 grams 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 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

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 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

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
Our Ruling

The appeal is bereft of merit.

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

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.

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

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 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.

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

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 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 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 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

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 v. Isnani17 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 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

CERTIFICATION

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

Endnotes:
1
 See People v. San Juan, 427 Phil. 236, 247-248 (2002).
2
 Records, p. 2.
3
 Id. at 3.
4
 Id. at 140-153; penned by Judge Ramon P. Makasiar.
5
 TSN, October 11, 2002, p. 15.
6
 2.729 grams plus 2.779 grams.
7
 Records, pp. 152-153.
8
 CA rollo, pp. 109-110.
9
 Records, p. 17.
10
 People v. Lee Hoi Ming, 459 Phil. 187, 193 (2003).
11
 People v. Tiu Won Chua, 453 Phil. 177, 186 (2003).
12
 People v. Tee, 443 Phil. 521, 551 (2003).
13
 People v. Bocalan, 457 Phil. 472, 482 (2003).
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
 People v. Bunsol, 159 Phil. 846, 851 (1975).
16
 See People v. Villamar,  358 Phil. 886, 894 (1998).
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.