G.R. No.

99026

QUIASON, J.:

This is an appeal from the judgment of the Regional Trial Court, Branch 164, Pasig, in Criminal
Case No. 1106-D, finding appellant RAFAEL BAGARES y MENDOZA guilty beyond reasonable
doubt of violation of Section 15 of the Dangerous Drugs Act (R.A. No. 6425, as amended).

In said criminal case, RAFAEL BAGARES y MENDOZA and IMELDA SANTOS y LOPEZ were
accused of violating the Dangerous Drugs Act, committed as follows:

"That on or about the 15th day of January, 1990, in the Municipality of Marikina, Metro Manila,
Philippines above-named accused, conspiring and confederating together and they mutually
helping and aiding one another, without being authorized by law, did then and there willfully,
unlawfully and feloniously sell to poseur buyer 0.06 grams of white crystalline substance
wrapped in a piece of aluminum foil; 0.10 grams of white crystalline substance placed in four (4)
transparent plastic bags and in consideration of P400.00, positive to the test for
methamphetamine hydrochloride (shabu), which are regulated drugs, in violation of the
above-cited law" (Records, p. 10).
Both accused pleaded not guilty to the information (Records, p. 24).

On February 7, 1991, the trial court rendered its judgment, acquitting Imelda Santos but
convicting Rafael Bagares of the crime charged. The decretal portion of the judgment reads as
follows:

"In view of all the foregoing circumstances, the Court finds the accused Rafael Bagares y
Mendoza GUILTY beyond reasonable doubt of illegally selling and/or dispensing shabu or
methamphetamine hydrochloride, as regulated drugs, in violation of Section 15 of the
Dangerous Drugs Act as amended as charged and therefore, hereby imposes upon him to
suffer the penalty of life imprisonment and to pay a fine of P20,000.00, as well as to pay the
costs.
On the other hand, the Court finds the accused Imelda Santos y Lopez NOT GUILTY of the
present charge in conspiracy of (sic) the other accused Rafael Bagares and therefore, hereby
acquits her of the same.
The Branch Clerk of this Court is hereby directed to forward the subject shabu as soon as
practicable (sic) to the Dangerous Drugs Board for whatever proper disposition that Board may
take under the premises" (Rollo, p. 19).
I

On January 12, 1990, a telephone call from an unidentified party was received by P/Sgt. Jimmy
Navarro, Officer-in-charge of the Marikina Police Station (TSN, March 28, 1990, p. 14),
regarding a shabu pusher operating at Sixto De la Paz St., Sta. Elena, Marikina, Metro Manila
(TSN, ibid., p. 3).
At about 9:30 A.M. of said date (TSN, ibid., p. 26), a team, composed of Pvt. Harrison Amanon
as team leader, Pvt. Melanio Valeroso, and Pats. Victor Azurin, Ruel Cenesa, and Herminio
Caligagan as members, was formed to conduct a surveillance at said place (TSN, ibid., pp. 3,
14-15).

The surveillance on January 12 lasted from 4:00 P.M. until about 10:00 P.M. In this span of time,
they discovered the identity of the person selling shabu in that vicinity. The surveillance
continued for three days. They observed that appellant regularly came out to do business in the
street at about 8:00 P.M. (TSN, ibid., p. 17).

On January 15, at around 9:30 P.M., the police team conducted a buy-bust operation with Pvt.
Valeroso acting as poseur-buyer (TSN, ibid., p. 4). He approached appellant and pretended to
be a buyer of shabu. At the same time, he handed to appellant the marked four
one-hundred-peso bills (TSN, ibid., p. 3). Appellant entered an alley and after a few minutes
returned and handed to Pvt. Valeroso two packets of shabu - one wrapped in an aluminum foil
and the other one in a plastic bag. After appellant handed over the shabu, Pvt. Valeroso
arrested and frisked him. Pvt. Valeroso was able to confiscate the four one-hundred-peso bills
from appellant (TSN, ibid., p. 4).

After apprehending appellant, the members of the team brought him to the police headquarters
for investigation and in the course thereof, he named accused Imelda Santos y Lopez as his
source of the shabu (TSN, ibid., p. 10).

The police team, together with appellant, proceeded to the residence of accused Santos, who
surrendered to them four plastic bags of shabu (Exhs. "F", "F-1", "F-2" and "F­-3"). They then
arrested her (TSN, ibid., pp. 10-11).

The Certification of Laboratory Result (Exh. "D") and the Chemical Report (Exhs. "C", "C-1" to
"C-3") prepared by P/Cap. Julita T. De Villa of the PC/INP Crime Laboratory, Camp Crame,
Quezon City showed that the specimens submitted for analysis were found positive for
methamphetamine hydrochloride or shabu (TSN, February 28, 1990, pp. 3-4).

Appellant denied the charges against him. He claimed that at around 9:00 P.M. of January 15,
1990, he was with friends drinking beer in front of his house (TSN, December 5, 1990, p. 2).
Suddenly, two policemen arrived and arrested him. He was brought to the town hall where he
was interrogated regarding his source of shabu. He saw the shabu and four one-hundred-peso
bills on top of the table. He was asked to shell out P30,000.00 so that the case could be settled
but he had no money to comply with the demand. So he was placed behind bars (TSN,
December 5, 1990, p. 5). No investigation was conducted by the Marikina Police in connection
with his arrest (TSN, December 5, 1990, p. 4).

Appellant denied having sold shabu, claiming that what he delivered for his employer, accused
Santos, were ordinary beans (TSN, December 5, 1990, p. 6).
II

In his appeal, appellant claims that the trial court erred: (1) in giving full credence to the
testimony of Pvt. Valeroso; (2) in not acquitting him after the court acquitted his co-accused on
the same evidence presented against him; and (3) in admitting illegally obtained evidence.

Appellant's defense consisted merely of denials and his claim that the shabu presented by the
prosecution as evidence against him was planted by the police.

The issue raised in appellant's first assignment of error is reduced to the credibility of the
witnesses. We have no grounds to reverse the findings of fact of the trial court (People v.
Bautista, 142 SCRA 649 [1986]).

Denials by the accused are as weak as the defense of alibi. They are self-serving evidence and
unless substantiated by clear and convincing evidence, cannot be given weight over the positive
assertions of credible witnesses (People v. Guibao, 217 SCRA 64 [1993]).

As to the claim that appellant was the victim of a "frame-up," we agree with the observation of
the trial court that if the police merely concocted trumped-up charges against him, they would
not have planted a "comparatively sizeable amount of shabu." Moreover, such defense can
easily be fabricated and is commonly used by persons accused of drug pushing (People v.
Agapito, 154 SCRA 694 [1987]).

There is the presumption that police officers in the performance of their official duties do so in a
regular manner and the evidence to overturn such a presumption must be sufficient and
convincing (People v. Marcos, 185 SCRA 154 [1990]). Appellant has not shown any ill-motive on
the part of the lone prosecution witness that may cast doubt on his testimony (People v. Villa,
221 SCRA 661 [1993]).

Appellant's claim that he was entertaining several visitors when the police arrived to arrest him
was intended to blunt the prosecution's evidence that the "buy-bust" operation took place about
ten meters from his house. The thrust of the contention was that appellant never left the place
where he was drinking with his friends in order to transact business with the poseur-buyer.

This contention would not prosper. In the first place, appellant never presented any of his
numerous guests, who could have testified that appellant never left the party to go out in the
street to transact a business deal with the poseur-buyer. In the second place, it was so easy for
appellant to slip away from his guests to sell shabu about ten meters from his house without his
absence being noticed.

In the second assignment of error, appellant claims that the trial court erred in not acquitting him
of the crime charged despite its acquittal of his co-accused Imelda Santos because "the
evidence of the prosecution is common against both and is based on the same factual setting,
arising from the same single incident." Suffice it to say that appellant and accused Santos were
not prosecuted on the basis of the same evidence and that they were arrested under different
circumstances. Appellant was prosecuted for selling prohibited drugs while accused Santos was
prosecuted for illegal possession of prohibited drugs.

Appellant was arrested when caught selling shabu in flagrante while accused Santos was
arrested after a warrantless search on information furnished by appellant himself after his arrest.

The acquittal of accused Santos was based mainly on the grounds of constitutional infirmity and
the unreasonableness of the warrantless search and seizure of the evidence against her.

Finally, appellant urges that the court a quo erred in admitting the prosecution evidence against
him, particularly Exhibits "D", "D-1", "E-1" and "F" to "F-3", which were seized without any
search warrant in violation of his constitutional rights.

Exhibits "D" to "D-1" refer to the shabu contained in the aluminum foil while Exhibits "E" to "E-1",
"F" to "F-3" refer to the plastic tea bags. These incriminating evidence were seized as an
incident and in connection with the arrest in flagrante of appellant.

Under Section 5(a), Rule 113 of the Code of Criminal Procedure, a police officer may arrest a
person even without a warrant, when the person arrested has committed or is actually
committing, or is attempting to commit an offense in his presence. Under Section 12, Rule 126
of the same Code, a person lawfully arrested may be searched for dangerous weapons or
anything which may be used as proof of the commission of the offense, without a search
warrant.

The provisions on penalties under the Dangerous Drugs Act of 1972, R.A. No. 6425, were
amended by R.A. No. 7659 as follows:

"SEC. 20. Application of Penalties, Confiscation and Forfeiture of the Proceeds of Instrument of
the Crime. The penalties for offenses under Sections 3, 4, 7, 8 and 9 of Article II and Sections
14, 14-A, 15 and 16 of Article III of this Act shall be applied if the dangerous drugs involved is in
any of the following quantities:
1. 40 grams or more of opium;

2. 40 grams or more of morphine;

3. 200 grams or more of shabu or methamphetamine hydrochloride;

4. 40 grams or more of heroin;

5. 750 grams or more of indian hemp or marijuana;

6. 50 grams or more of marijuana resin or marijuana resin oil;

8. In the case of other dangerous drugs, the quantity of which is far beyond therapeutic
requirements, as determined and promulgated by the Dangerous Drugs Board, after public
consultation/hearings conducted for the purpose.

Otherwise, if the quantity involved is less than the foregoing quantities, the penalty shall range
from prision correccional to reclusion perpetua depending upon the quantity.
Every penalty imposed for the unlawful importation, sale, administration, delivery, transportation
or manufacture of dangerous drugs, the cultivation of plants which are sources of dangerous
drugs and the possession of any opium pipe and other paraphernalia for dangerous drugs shall
carry with it the confiscation and forfeiture, in favor of the Government, of all the proceeds of the
crime including but not limited to money and others obtained thereby and the instruments or
tools with which it was committed, unless they are property of a third person not liable for the
offense, but those which are not of lawful commerce shall be ordered destroyed without delay.
Dangerous drugs and plant sources of such drugs as well as the proceeds or instruments of the
crime so confiscated and forfeited in favor of the Government shall be turned over to the Board
for proper disposal without delay.
Any apprehending or arresting officer who misappropriates or misapplies or fails to account for
seized or confiscated dangerous drugs or plant-sources of dangerous drugs or proceeds or
instruments of the crime as herein defined shall after conviction be punished by the penalty of
reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million
pesos."
The above provision of R.A. No. 7659 can be applied in the instant case, pursuant to the
principle in criminal law, favorabilia sunt amplianda, adiosa restrigenda (Penal laws which are
favorable to the accused are given retroactive effect). This principle is embodied in Article 22 of
the Revised Penal Code which provides as follows:

"Retroactive effect of penal laws. -- Penal laws shall have a retroactive effect insofar as they
favor the persons guilty of a felony, who is not a habitual criminal, as this term is defined in Rule
5 of Article 62 of this Code, although at the time of the publication of such laws a final sentence
has been pronounced and the convict is serving the same."
The provisions of Article 22 of the Revised Penal Code are applicable even to special laws (U.S.
v. Soliman, 36 Phil. 5 [1917]).

According to the trial court, appellant was caught selling 0.16 grams of shabu. We impose the
penalty of prision correccional considering the small quantity of shabu (0.16 grams) confiscated
from the accused. Applying the Indeterminate Sentence Law, the minimum penalty shall not be
less than the minimum prescribed by Section 1 of R.A. No. 7659.

WHEREFORE, the decision of the Regional Trial Court is AFFIRMED in all respects except as
to the penalty, which is MODIFIED to SIX (6) months and ONE (1) day of prision correccional to
TWO (2) years and ONE (1) day of prision correccional. No pronouncement as to costs.
SO ORDERED.

Cruz, (Chairman), Davide, Jr., Bellosillo, and Kapunan, JJ.,concur.