VOL.

515, FEBRUARY 8, 2007 187

People vs. Nicolas

*
G.R. No. 170234. February 8, 2007.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.

BERNARDO F. NICOLAS, accused-appellant.

Criminal Law; Comprehensive Dangerous Drugs Act of 2002 (R.A. No.

9165); Buy-Bust Operations; The absence of a prior surveillance or test-buy
does not affect the legality of the buy-bust operation—there is no textbook
method of conducting buy-bust operations.—Settled is the rule that the
absence of a prior surveillance or test-buy does not affect the legality of the
buy-bust operation. There is no textbook method of conducting buy-bust
operations. The Court has left to the discretion of police authorities the
selection of effective means to apprehend drug dealers. A prior surveillance,
much less a lengthy one, is not necessary especially where the police
operatives are accompanied by their informant during the entrapment.
Flexibility is a trait of good police work. In the case at bar, the buy-bust
operation was conducted without need of any prior surveillance for the
reason that the informant accompanied the policemen to the person who is
peddling the dangerous drugs.

Same; Same; Same; The fact that the team leader and the other
members of the team did not discuss or talk about the marked money does
not necessarily mean that there was no buy-bust operation.—

_______________

* THIRD DIVISION.

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188 SUPREME COURT REPORTS ANNOTATED

 People vs. Nicolas

From the records, it is clear that it was PO2 Damasco who prepared the
marked money as shown by his initials on the top right corner of the
P500.00 bill that was used in purchasing the shabu from appellant. The fact
that the team leader and the other members of the team did not discuss or
talk about the marked money does not necessarily mean that there was no
buy-bust operation. As explained by SPO2 Zipagan, since PO2 Damasco
was the designated poseur buyer it was the latter’s discretion as to how to
prepare the marked money. It is not required that all the members of the
buy-bust team know how the marked money is to be produced and marked
inasmuch as they have their respective roles to perform in the operation. As
this Court sees it, the other members of the team left the matter of the
marked money to one person—the poseur buyer—because it was he who
was to deal directly with the drug pusher.

Same; Same; Same; The employment of pre-arranged signal, or the

lack of it, is not indispensable in a buy-bust operation.—As to the absence
of a pre-arranged signal, same is not fatal to the cause of the prosecution.
The employment of a pre-arranged signal, or the lack of it, is not
indispensable in a buy-bust operation. What determines if there was, indeed,
a sale of dangerous drugs is proof of the concurrence of all the elements of
the offense. A buy-bust operation is a form of entrapment which has
repeatedly been accepted to be a valid means of arresting violators of the
Dangerous Drugs Law. The elements necessary for the prosecution of illegal
sale of drugs are (1) the identity of the buyer and the seller, the object, and
consideration; and (2) the delivery of the thing sold and the payment
therefore. What is material to the prosecution for illegal sale of dangerous
drugs is the proof that the transaction or sale actually took place, coupled
with the presentation in court of evidence of corpus delicti.

Same; Same; Same; Frame-Ups; Frame-up, like alibi, is generally

viewed with caution by the Supreme Court, because it is easy to contrive
and difficult to disprove.—Frame-up, like alibi, is generally viewed with
caution by this Court, because it is easy to contrive and difficult to disprove.
Moreover, it is a common and standard line of defense in prosecutions of
violations of the Dangerous Drugs Act. For this claim to prosper, the
defense must adduce clear and convincing evidence to overcome the
presumption that government officials have performed their duties in a
regular and proper manner. In the case at bar, the presumption remained
uncontradicted because the

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 VOL. 515, FEBRUARY 8, 2007 189

People vs. Nicolas

defense failed to present clear and convincing evidence that the police
officers did not properly perform their duty or that they were inspired by an
improper motive.

Same; Same; Same; Witnesses; Prosecutions involving illegal drugs

largely depend on the credibility of the police officers who conducted the
buy-bust operation.—Prosecutions involving illegal drugs largely depend on
the credibility of the police officers who conducted the buy-bust operation.
Considering that this Court has access only to the cold and impersonal
records of the proceedings, it generally relies upon the assessment of the
trial court, which had the distinct advantage of observing the conduct and
demeanor of the witnesses during trial. Hence, factual findings of the trial
courts are accorded respect absent any showing that certain facts of weights
and substance bearing on the elements of the crime have been overlooked,
misapprehended or misapplied. We have no reason to deviate from this rule.
We affirm the factual findings of the trial court as affirmed by the Court of
Appeals. The evidence presented by the prosecution proves to a moral
certainty petitioner’s guilt of the crime of selling dangerous drugs.

Same; Same; The provisions of the Revised Penal Code no longer

apply to the provisions of the Drugs law except when the offender is a
minor.—Section 98 of Republic Act No. 9165, however, provides for the
limited application of the provisions of the Revised Penal Code on said law.
This Section reads: SEC.98.Limited Applicability of the Revised Penal
Code.—Notwithstanding any law, rule or regulation to the contrary, the
provisions of the Revised Penal Code (Act No. 3815), as amended, shall not
apply to the provisions of this Act, except in the case of minor offenders.
Where the offender is a minor, the penalty for acts punishable by life
imprisonment to death provided herein shall be reclusion perpetua to death.
(Italics supplied.) With the aforesaid section, the provisions of the Revised
Penal Code shall no longer apply to the provisions of the Drugs law except
when the offender is a minor. Thus, Article 63(2) of the Revised Penal Code
shall not be used in the determination of the penalty to be imposed on the
accused. Since Section 98 of the Drugs Law contains the word “shall,” the
non-applicability of the Revised Penal Code provisions is mandatory,
subject only to the exception in case the offender is a minor.

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190 SUPREME COURT REPORTS ANNOTATED
People vs. Nicolas

APPEAL from a decision of the Court of Appeals.

The facts are stated in the opinion of the Court.
     The Solicitor General for appellee.
     Public Attorney’s Office for appellant.

CHICO-NAZARIO, J.:
1
Assailed before Us is the decision of the Court of Appeals in CA-
G.R. CR-H.C. No. 01191 dated 23 August 2005 which affirmed in
2
toto the decision of the Regional Trial Court (RTC) of Pasig City,
Branch 164, in Criminal Case No. 11566D, finding accused-
appellant Bernardo Felizardo
3
Nicolas, a.k.a. Bernie, guilty of
violation of Section 5, Article II of Republic Act No. 9165,
otherwise known as Comprehensive Dangerous Drugs Act of 2002.
In an Information dated 7 August 2002, accused-appellant
Bernardo Felizardo Nicolas, a.k.a. Bernie, was charged with
Violation of Section 5, Article II of Republic Act No. 9165, the
accusatory portion thereof reading:

“On or about August 6, 2002, in Pasig City and within the jurisdiction of
this Honorable Court, the accused, who is not being authorized by law, did,
then and there willfully, unlawfully and feloniously sell, deliver and give
away to PO2 Danilo S. Damasco, one (1) heat-sealed transparent plastic
sachet containing 0.42 gram of white crystalline substance which was found
positive to the test for methamphetamine hydrochloride (shabu), a
4
dangerous drug, in violation of the said law.”

_______________

1 Penned by Associate Justice (now Presiding Justice) Ruben T. Reyes with

Associate Justices Josefina Guevara-Salonga and Fernanda Lampas-Peralta,
concurring. Rollo, pp. 100-118.
2 Records, pp. 89-94.
3 Sale, Trading, Administration, Dispensation, Delivery, Distribution and
Transportation of Dangerous Drugs and/or Controlled Precursors and Essential
Chemicals.
4 Records, p. 1.

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VOL. 515, FEBRUARY 8, 2007 191

 People vs. Nicolas

The case was raffled to Branch 164 of the RTC of Pasig City and
docketed as Criminal Case No. 11566-D.
When arraigned on 30 September 2002, appellant, 5
assisted by
counsel de oficio, pleaded “Not Guilty” to the charge. The Pre-Trial
Conference of the case was terminated on the same day. Thereafter,
the case was heard.
The prosecution presented two witnesses: PO2 Danilo S.
6 7
Damasco and SPO2 Dante Zipagan, both members of the Station
Drug Enforcement Unit of the Pasig Police Station.
The testimony of Police Inspector Delfin A. Torregoza, Forensic
Chemical Officer, Eastern Police District Crime Laboratory Office,
was, however, dispensed with after both prosecution and defense
8
stipulated that the specimen submitted in court is the same 9
one
mentioned in the Request for Laboratory 10
Examination and in
Chemistry Report No. D-1501-02E, and that same was regularly
examined by said forensic chemical
11
officer.
For the defense, appellant took the witness stand together with
12
his common-law
13
wife, Susan dela Cruz Villasoto, and brother, Jose
Nicolas.
The diametrical versions of the People and the accused are
narrated by the trial court as follows:

VERSION OF THE PEOPLE

“On August 6, 2002, at about 9:30 o’clock in the evening, a confidential

informant stepped inside the office of the Station Drug Enforcement Unit of
the Pasig Police Station, Pasig City and in

_______________

5 Id., at p. 16.
6 TSN, 16 December 2002 and 3 February 2003.
7 TSN, 3 March 2003.
8 Exhibit “E-1.”
9 Exhibit “B-1”; Records, p. 52.
10 Exhibit “C-1”; Records, p. 54.
11 TSN, 26 May and 29 May 2003.
12 TSN, 7 July 2003.
13 TSN, 15 September 2003.

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192 SUPREME COURT REPORTS ANNOTATED
People vs. Nicolas

formed SPO4 Numeriano S. De Lara, Officer In-Charge of that unit, that a

certain alias Bernie was selling shabu at his place along Santiago Street, in
Barangay Bagong Ilog, Pasig City. Immediately, SPO4 De Lara organized a
team to conduct a surveillance operation and the entrapment of alias Bernie,
if warranted by the situation. The team was composed of PO2 Danilo S.
Damasco, PO2 Montefalcon, PO2 Orig and SPO2 Zipagan who was the
team leader. PO2 Damasco was designated to act as poseur-buyer in the
buy-bust operation while the other police officers would serve as his back-
ups to assist in the possible apprehension of alias Bernie. After a short
briefing, the team of police operatives, including the confidential informant,
proceeded to the target place at Santiago Street, Bagong Ilog, Pasig City.
SPO2 Dante Zipagan, the team leader, instructed the confidential informant
to first check and look for the whereabouts of alias Bernie. The informant,
after five minutes, returned and informed the team that he found alias Bernie
in front of his house and the team decided to proceed with the planned
entrapment of alias Bernie. PO2 Damasco and the informant then walked
towards the house of alias Bernie while the back-up police officers placed
themselves strategically in different positions where they could see PO2
Damasco and the informant in the act of negotiating with alias Bernie. PO2
Damasco and the informant saw alias Bernie conversing with a male person
in front of his house. After the informant greeted alias Bernie, he introduced
PO2 Damasco to alias Bernie whose real name is Bernardo Nicolas, the
accused herein, as a user of shabu and would like now to buy some
Php500.00 worth of the substance from him. Alias Bernie, responded that he
still had one piece of that stuff and was willing to sell it to poseur-buyer
Damasco. Accused asked for the money which was pre-marked by Damasco
with initials DSD (Exh. “D-1”) which stands for the name of Danilo S.
Damasco. Damasco then handed the five hundred peso bill (Exh. “D”) to
accused who accepted it. Accused, in return, gave Damasco one plastic
sachet containing white crystalline substance which looked like that of
shabu. For a moment, PO2 Damasco examined the plastic sachet and its
content and then announced to the accused he was a police officer and
arresting him for violation of the drugs law. Accused Bernardo Nicolas alias
Bernie got shocked and surprised. As Damasco was holding the accused, the
back-up officers arrived and assisted him in handling the accused. Damasco
recovered the buy-bust money and the police team took him away to their
station, where he was turned over to a police investigator together

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People vs. Nicolas

with the small plastic sachet of suspected shabu that Damasco had
purchased from the accused. SPO4 Numeriano S. De Lara sent the small
plastic sachet containing white crystalline substance which was then marked
with EXH.-A BFN/080602 to the Eastern Police District Crime Laboratory
Office at St. Francis St., Mandaluyong City, as per his letter memorandum
dated August 6, 2002 (Exhs. “B” and “B-1”). The specimen was received at
the EPD Crime Laboratory office by P/Insp. Delfin Torregoza, a Forensic
Chemical Officer, who weighed and examined the specimen which he found
to contain 0.42 gram of white crystalline substance which was tested
positive for methamphetamine hydrochloride as per his Chemistry Report
No. D-1501-02E (Exhs. “C” and “C-1”). Accused Bernardo F. Nicolas was
consequently charged with Violation of Section 5, Article II of R.A. 9165.”

VERSION OF DEFENSE

“x x x x
[Appellant] testified that on August 6, 2002 at about 10:00 o’clock in the
evening, he was outside of his house conversing with his brother, Jose
Nicolas, and a friend named Arnold Mendez. He had just came (sic) out of
his house in order to close the billiard salon that he owned. As they were
then huddled in animated conversation, two motor vehicles stopped in front
of his billiard parlor, a car and a van. The passengers of the van alighted and
one of them pointed a gun at him. As accused was not familiar with the
men, he could not recognize them. He learned, later on, that the man who
poked a gun at him was PO2 Danilo Damasco who was accompanied by
other persons numbering about four or five of them. Damasco warned him
not to move, holding and waiving in his hand a plastic sachet which
Damasco said he bought from accused Bernardo Nicolas. The police officers
then proceeded to put handcuffs on the hands of the accused, in spite of his
protest denying anything to do with the plastic sachet of alleged shabu being
displayed by Damasco. The police officers also handcuffed and arrested
Arnold Mendez. Jose Nicolas did not allow himself to be arrested and
handcuffed. When he sensed that he would be handcuffed, he immediately
fled and ran into his house, locking himself in. Luckily for him, the police
officers did not pursue him any longer. He just watched the incident by
peeping through the window of his house. Accused Bernardo Nicolas alias
Bernie and Arnold Mendez, were then forced into the police vehicle and
taken to

194
194 SUPREME COURT REPORTS ANNOTATED
People vs. Nicolas

the police station, although Nicolas showed resistance which forced the
police officers to physically carry him into their vehicle. Accused Bernard
Nicolas was then charged with Violation of Section 5, Article II, R.A.
9165.”

Appellant denies the charge. He insists that there was no buy-bust

operation and that the shabu (methamphetamine hydrochloride)
allegedly sold by him to the poseur buyer was planted evidence. He
claims that the trumped-up charge is a way of getting even with him
because he, together with his wife, had filed a case before the
National Police Commission (NAPOLCOM) for grave misconduct
against several policemen (PO2 Joel Tapec, PO1 Christopher
Semana and five John Does) assigned at the Station Drug
Enforcement Unit of the Pasig Police Station, for entering and
robbing their house on 5 February 2002. He further claims that the
policemen who arrested him for allegedly selling shabu were the
John Does mentioned in the complaint he and his wife filed with the
NAPOLCOM.
In its decision dated 8 October 2003, the trial court found
appellant guilty beyond reasonable doubt of the crime charged and
sentenced him to life imprisonment. The dispositve portion of the
decision reads:

“WHEREFORE, the court finds accused BERNARDO F. NICOLAS

GUILTY beyond reasonable doubt, as principal of violation of Section 5,
Article II, R.A. 9165 and hereby imposes upon him the penalty of life
14
imprisonment and a fine of five hundred thousand pesos (P500.00), with
15
the accessory penalties provided under Section 35 thereof.”

From the decision, appellant filed a Notice of Appeal informing the

16
court that he is appealing the same to the Court of Appeals.
Though the Notice of Appeal specified that the

_______________

14 Should read P500,000.00.

15 Records, p. 93.
16 Id., at p. 96.

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 VOL. 515, FEBRUARY 8, 2007 195
People vs. Nicolas

decision is being appealed to the Court of Appeals, the trial court

nonetheless forwarded the records of the case to the Supreme
17
Court
pursuant to Section 3, Rule 122 of the Rules of Court.
On 22 November 2004, appellant filed an appellant’s brief before
the Supreme Court. On 31 March 2005, the Office of the Solicitor
18
General filed the People’s brief.
Since the penalty imposed by the trial court was life
imprisonment, the case was remanded to the Court of Appeals for
appropriate
19
action and disposition pursuant to our ruling in People v.
Mateo.
On 23 August 2005, the Court of Appeals rendered its decision
20
affirming in full the decision of the trial court. Appellant filed21a
Notice of Appeal assailing the decision before the Supreme Court.
With the elevation of the records of the case to the Supreme
Court, the parties were required to submit their respective
22
supplemental briefs, if they so desire, within 30 days from notice.
The parties opted not to file supplemental briefs

_______________

17 SEC. 3. How appeal taken.—

xxxx
(c) The appeal to the Supreme Court in cases where the penalty imposed by the Regional
Trial Court is reclusion perpetua or life imprisonment, or where a lesser penalty is imposed but
for offenses committed on the same occasion or which arose out of the same occurrence that
gave rise to the more serious offense for which the penalty of death, reclusion perpetua, or life
imprisonment is imposed shall be by filing a notice of appeal in accordance with paragraph (a)
of this section.

18 Rollo, pp. 70-92.

19 G.R. Nos. 147678-87, 7 July 2004, 433 SCRA 640.
20 Rollo, p. 118.
21 Id., at p. 125.
22 Id., at p. 22.

196

196 SUPREME COURT REPORTS ANNOTATED

People vs. Nicolas
on the ground that 23
they have fully argued their positions in their
respective briefs.
Appellant assigns as errors the following:

I.

THE TRIAL COURT GRAVELY ERRED IN GIVING FAITH AND

CREDENCE TO THE UNRELIABLE TESTIMONIES OF THE
PROSECUTION WITNESSES AND IN TOTALLY DISREGARDING
THE VERSION OF THE DEFENSE.

II.

THE TRIAL COURT GRAVELY ERRED IN FINDING THE

ACCUSED-APPELLANT GUILTY OF THE CRIME CHARGED
DESPITE FAILURE OF THE PROSECUTION TO PROVE HIS GUILT
BEYOND REASONABLE DOUBT.

Appellant observed that (1) the policemen did not conduct

surveillance first; (2) they did not have any agreement as regards the
money to be used in buying the shabu; and (3) they failed to talk
about any signal to inform the back-up policemen that the
transaction has been consummated. He contends that the absence of
these things is unusual and that it made even more doubtful that the
buy-bust operation really took place.
These observations will not purge him of the charge.
Settled is the rule that the absence of a prior surveillance or test-
buy does not affect the legality of the buy-bust operation. There is
no textbook method of conducting buy-bust operations. The Court
has left to the discretion of police authorities the selection of
24
effective means to apprehend drug dealers. A prior surveillance,
much less a lengthy one, is not necessary especially where the police
operatives are accom-

_______________

23 Id., at pp. 23-24, 26-27.

24 People v. Li Yin Chu , G.R. No. 143793, 17 February 2004, 423 SCRA 158, 169.

197

VOL. 515, FEBRUARY 8, 2007 197

People vs. Nicolas

25
 25
panied by their informant26 during the entrapment. Flexibility is a
trait of good police work. In the case at bar, the buy-bust operation
was conducted without need of any prior surveillance for the reason
that the informant accompanied the policemen to the person who is
peddling the dangerous drugs.
Appellant faults the policemen because there was no agreement
or discussion among themselves as regards the marked money and
the pre-arranged signal.
From the records, it is clear that it was PO2 Damasco who
27
prepared the marked money as shown by his initials on the top
right corner of the P500.00
28
bill that was used in purchasing the
shabu from appellant. The fact that the team leader and the other
members of the team did not discuss or talk about the marked money
does not necessarily mean that there was no buy-bust operation. As
explained by SPO2 Zipagan, since PO2 Damasco was the designated
poseur buyer it was the latter’s discretion as to how to prepare the
marked money. It is not required that all the members of the buy-
bust team know how the marked money is to be produced and
marked inasmuch as they have their respective roles to perform in
the operation. As this Court sees it, the other members of the team
left the matter of the marked money to one person—the poseur
buyer—because it was he who was to deal directly with the drug
pusher.
As to the absence of a pre-arranged signal, same is not fatal to the
cause of the prosecution. The employment of a prearranged signal,
or the lack of it, is not indispensable in a buy-bust operation. What
determines if there was, indeed, a sale of dangerous drugs is proof of
the concurrence of all the elements of the offense. A buy-bust
operation is a form of

_______________

25 People v. Gonzales, 430 Phil. 504, 514; 380 SCRA 689, 698 (2002).
26 People v. Cadley, G.R. No. 150735, 15 March 2004, 425 SCRA 493, 500.
27 Exh. “D”; Records, pp. 55-56.
28 TSN, 16 December 2002, pp. 6-7.

198

198 SUPREME COURT REPORTS ANNOTATED

People vs. Nicolas
entrapment which has repeatedly been accepted to be 29
a valid means
of arresting violators of the Dangerous Drugs Law. The elements
necessary for the prosecution of illegal sale of drugs are (1) the
identity of the buyer and the seller, the object, and consideration; 30
and (2) the delivery of the thing sold and the payment therefore.
What is material to the prosecution for illegal sale of dangerous
drugs is the proof that the transaction or sale actually took place,
coupled with the presentation in court of evidence of corpus
31
delicti.
In the case under consideration, all these elements have been
established. The witnesses for the prosecution clearly showed that
the sale of the drugs actually happened and that the shabu subject of
the sale was brought and identified in court. The poseur buyer (PO2
Damasco) categorically identified appellant as the seller of the
shabu. His testimony was corroborated by SPO2 Zipagan. Per
Chemistry Report No. D1501-02E of Police Inspector Delfin A.
Torregoza, the substance, weighing 0.42 gram, which was bought by
PO2 Damasco from appellant in consideration of P500.00, was
examined and found to be methamphetamine hydrochloride (shabu).
We quote the material portions of the testimony of the poseur
buyer that detailed the apprehension of appellant, as follows:

A: And we briefed and after a short briefing we proceeded to the

alleged residence of Bernie and when we reached the place, I
particularly saw the subject person in front of the alleged house.

_______________

29 People v. Corpuz, 442 Phil. 405, 414; 394 SCRA 191, 197 (2002).
30 People v. Adam, 459 Phil. 676, 684; 413 SCRA 293, 299 (2003).
31 People v. Padasin, 445 Phil. 448, 461; 397 SCRA 417, 428 (2003).

199

VOL. 515, FEBRUARY 8, 2007 199

People vs. Nicolas

Q: You said we, whom are you referring to as those who went with
you to the house of Bernie?
A: The confidential informant.
Q: After reaching the house of Bernie, what happened there?
A: I saw the subject person infront of his alleged house talking to
another male person.
Q: What was the general condition of that place outside the house
of Bernie when you saw him?
A: Dim light, sir.
Q: After you first saw Bernie talking with somebody else, what did
you do?
A: The confidential informant greeted alias Bernie and after
greeting said person the other male person he was talking to
went farther from us and they conversed.
Q: And after that conversation between your informant and Bernie,
what happened?
A: The confidential informant introduced me as a shabu user and as
a customer.
Q: How far were you from Bernie when you were introduced?
A: Only two (sic) away.
Q: Less than a meter?
A: Yes, sir.
Q: What was the response of Bernie as you were introduced as a
shabu user?
A: He checked my personality first and he asked me if I will get the
stuff, he asked me in tagalog, kukuha ka ba?
Q: And what did you tell him?
A: I answered him, kung mayroon kukuha ako.
Q: And what was his answer?
A: He answered me that, mayroon kaya tamang-tama kasi isa na
lang itong natitira sa akin panggamit ko sana.
Q: At that very moment, after you were told by Bernie isa na lang
ang natitira, what did you?

200

200 SUPREME COURT REPORTS ANNOTATED

People vs. Nicolas

A: I asked him kung puwede pang bilhin and then he told me, isa
na lang ito panggamit ko, magkano ba ang kukunin mo?
Q: What was your answer?
A: I told him, P500.00 worth.
Q: And what is [his] reply?
A: Okay, ibibigay ko na lang sa inyo.
Q: And what happened next?
A: He asked my payment first.
Q: And what did you do after he asked your payment?
A: I gave him the pre-marked money.
Q: What (sic) that bill made off?
A: P500.00 bill.
Q: Where did you put that marking in that bill?
A: I put the marking on the upper right portion of the bill inside the
500.
Q: What are the markings did you put there?
A: I put my initials DSD.
Q: Now after you gave him that P500.00 marked money, what else
happened?
A: After he received the pre-marked money then he gave me one
(1) plastic sachet containing white crystalline substance after
receiving said I examined the plastic sachet.
Q: After that examination of yours, what did you do?
A: After a brief examination immediately I introduced myself as a
police officer and subsequently, arrested alias Bernie.
Q: After you introduced yourself as a police officer, what was the
reaction of alias Bernie?
A: He was shocked, sir.
Q: Did he tell you anything?
A: None, sir.
Q: And what did you do after arresting him immediately?
A: After informing his constitutional right I recovered the pre-
marked money.

201

VOL. 515, FEBRUARY 8, 2007 201

People vs. Nicolas

Q: You mean, you frisked him, Mr. Witness?

A: Yes, sir.
Q: What else did you recover from him aside from the mark
money?
32
A: Nothing more.

Appellant tries to discredit PO2 Damasco and SPO2 Zipagan by

showing an inconsistency in their testimonies regarding the
condition of the scene of the incident. He points out that PO2
Damasco stressed that the place was dark while SPO2 Zipagan said
33
that the area was well-lighted.
After going over the testimonies of the two police operatives, we
find no inconsistency in their testimonies. When asked about the
general condition of the place outside
34
the house of appellant, PO2
Damasco answered “dim light.” On the other hand, SPO2 Zipagan
35
said the place was “a lighted area.” PO2 Damasco did not say that
the place was dark nor did SPO2 Zipagan say that the place was
well-lighted. What is clear is that the place was lighted. Thus, since
both witnesses said that the place was lighted, the inconsistency is
more apparent than real. Even assuming ad arguendo that this can be
considered an inconsistency, same is trivial to adversely affect their
credibility.
We now go to appellant’s contention that the policemen who
arrested him were impelled by improper motive. He argues that he
was merely talking to his brother and a friend when the policemen
suddenly arrived and insisted that he had sold shabu to PO2
Damasco. He claims that the charge against him was driven by the
policemen’s desire to get even with him for filing a case for grave
misconduct against the said policemen with the NAPOLCOM. He
added that the trial

_______________

32 TSN, 16 December 2002, pp. 5-7.

33 Appellant’s Brief, p. 10; Rollo, p. 56.
34 TSN, 16 December 2002, p. 5.
35 TSN, 3 March 2003, p. 7.

202

202 SUPREME COURT REPORTS ANNOTATED

People vs. Nicolas
court should have considered the motive as to why he was charged
and that the possibility of vengeance is not remote.
We find appelant’s imputation of ill motive on the police officers
to be unsubstantiated by clear and convincing evidence. We agree in
the trial court’s ruling when it said:

“The evidence does not show that Damasco and Zipagan were moved by ill-
will in testifying against the accused. There was no ill feeling or personal
animosity existing between the police officers and the accused at the time of
the latter’s arrest. It is true that accused Bernardo F. Nicolas and his
common-law wife Susan Dela Cruz Villasoto filed an administrative case
against PO2 Joel Tapec and PO1 Christopher Semana, both of the Pasig City
Police Station for grave misconduct before the National Police Commission
which is docketed as ADM CASE No. 2003-008 (NCR). But the filing of
this case against Tapec and Semana is not enough reason for Damasco and
Zipagan to fabricate or plant evidence against the accused. There was
absolutely no reason at all for them to risk their lives and career to go and
plant evidence against the accused which is in violation of Section 29 of
R.A. 9165 that imposes upon any person found guilty of planting any
dangerous drug regardless of quantity and purity, the penalty of death. These
police officers are presumed to know this law and the court believes that
these police officers do not wish to lose their lives by fabricating evidence
against innocent individuals. Accused Bernardo Nicolas, naturally, was
expected to deny the accusation against him, for admission would
automatically result in conviction. The testimony of his common-law wife,
Susan Dela Cruz Villasoto is not much of help to the accused’[s] defense.
Since she did not witness what transpired when accused went out of the
house in the evening of August 6, 2002. All that she substantially testified to
was that she heard shouting outside of their house and saw three persons
forcibly carrying her husband to the other side of the road. (TSN, July 7,
2003, p. 4). Witness Jose F. Nicolas, to the mind of the court is not a
credible witness. He claimed he was present at the time accused was
arrested. He said he fled in order to avoid being handcuffed and arrested by
the police when his brother alias Bernie was arrested. He did not even visit
his brother in jail. He talked to him only on August 25, 2003 to discuss with
him his testimony in court. (TSN, September 15, 2003, p. 13). Being
accused’s close relative, Jose Nicolas is expected to testify favorably in

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People vs. Nicolas
behalf of the accused whose testimony, of course, is not sufficient to
overthrow the strength and weight of the testimonies of the police officers
36
Damasco and Zipagan.”

We likewise find appellant’s declaration that the policemen who

arrested him were the very same ones who robbed his house on 5
February 2002 to be a mere afterthought in order that he may justify
his claim of improper motive on the part of the policemen. How
convenient, indeed, it is for him to make such a declaration. From
the time of the alleged breakin in his house on 5 February 2002 until
the time he was arrested on 6 August 2002 for selling shabu, he
never lifted a finger to try and find out the identities of the alleged
five John Does mentioned in his complaint with the NAPOLCOM.
He could have easily gone to the Station Drug Enforcement Unit of
the Pasig Police Station, but this he did not do. Only when he was
arrested during an entrapment operation did he make such a claim.
The timing thereof renders such declaration very dubious and
unreliable.
Appellant’s contention that he was framed-up is made even more
37
suspect by the fact that the statement of his commonlaw wife that
he had gone out of the house for only two minutes when the
38
policemen arrived and took him away is belied by the statement of
his brother that he had been outside the house for 30 minutes and
was talking with his brother and Arnold Mendez when the
policemen arrived.
Frame-up, like alibi, is generally viewed with caution by this
Court, because it is easy to contrive and difficult to disprove.
Moreover, it is a common and standard line of defense in
39
prosecutions of violations of the Dangerous Drugs Act. For this
claim to prosper, the defense must adduce clear and con-

_______________

36 Records, pp. 92-93.

37 TSN, 7 July 2003, pp. 13-14.
38 TSN, 15 September 2003, p. 3.
39 People v. Eugenio, 443 Phil. 411, 419; 395 SCRA 317, 323 (2003).

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204 SUPREME COURT REPORTS ANNOTATED

People vs. Nicolas
vincing evidence to overcome the presumption that government
officials have performed their duties in a regular and proper
40
manner. In the case at bar, the presumption remained
uncontradicted because the defense failed to present clear and
convincing evidence that the police officers did not properly perform
their duty or that they were inspired by an improper motive.
Prosecutions involving illegal drugs largely depend on the
credibility of the police officers who conducted the buy-bust
operation. Considering that this Court has access only to the cold
and impersonal records of the proceedings, it generally relies upon
the assessment of the trial court, which had the distinct advantage of
observing the conduct and demeanor of the witnesses during trial.
Hence, factual findings of the trial courts are accorded respect absent
any showing that certain facts of weights and substance bearing on
the elements of the crime have been overlooked, misapprehended or
41
misapplied. We have no reason to deviate from this rule. We affirm
the factual findings of the trial court as affirmed by the Court of
Appeals. The evidence presented by the prosecution proves to a
moral certainty petitioner’s guilt of the crime of selling dangerous
drugs.
The sale of shabu is penalized under Section 5, Article II of
Republic Act No. 9165. Said section reads:

“SEC. 5. Sale, Trading, Administration, Dispensation, Delivery,

Distribution and Transportation of Dangerous Drugs and/or Controlled
Precursors and Essential Chemicals.—The penalty of life imprisonment to
death and a fine ranging from Five hundred thousand pesos (P500,000.00) to
Ten million pesos (P10,000,000.00) shall be imposed upon any person, who,
unless authorized by law, shall sell, trade, administer, dispense, deliver, give
away to another, distribute, dispatch in transit or transport any dangerous
drug, includ

_______________

40 People v. Zheng Bai Hui, 393 Phil. 68, 135; 338 SCRA 420, 478 (2000).
41 People v. Ahmad, G.R. No. 148048, 15 January 2004, 419 SCRA 677, 685.

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People vs. Nicolas

ing any and all species of opium poppy regardless of the quantity and purity
involved, or shall act as a broker in any of such transactions.”
Under said law, the sale of any dangerous drug, regardless of its
quantity and purity, is punishable by life imprisonment to death and
a fine of P500,000.00 to P10,000,000.00. For selling 0.42 gram of
shabu to PO2 Damasco, the trial court, as sustained by the Court of
Appeals, imposed the penalty of life imprisonment and a fine of
42
P500,000.00 in accordance with Article 63(2) of the Revised Penal
Code.
Section 98 of Republic Act No. 9165, however, provides for the
limited application of the provisions of the Revised Penal Code on
said law. This Section reads:

“SEC. 98. Limited Applicability of the Revised Penal Code.—

Notwithstanding any law, rule or regulation to the contrary, the provisions of
the Revised Penal Code (Act No. 3815), as amended, shall not apply to the
provisions of this Act, except in the case of minor offenders. Where the
offender is a minor, the penalty for acts punishable by life imprisonment to
death provided herein shall be reclusion perpetua to death.” (Italics
supplied.)

With the aforesaid section, the provisions of the Revised Penal Code
shall no longer apply to the provisions of the Drugs law except when
the offender is a minor. Thus, Article 63(2) of the Revised Penal
Code shall not be used in the determination of the penalty to be
imposed on the accused.

_______________

42 ART. 63. Rules for the application of indivisible penalties.

xxx
In all cases in which the law prescribes a penalty composed of two indivisible penalties, the
following rules shall be observed in the application thereof:
xxx
2. When there are neither mitigating nor aggravating circumstances in the commission of
the deed, the lesser penalty shall be applied.

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206 SUPREME COURT REPORTS ANNOTATED

People vs. Nicolas

Since Section 98 of the Drugs Law contains the word “shall,” the
non-applicability of the Revised Penal Code provisions is
mandatory, subject only to the exception in case the offender is a
minor.
In the imposition of the proper penalty, the courts, taking into
account the circumstances attendant in the commission of the
offense, are given the discretion to impose either life imprisonment
or death, and the fine as provided for by law. In light, however, of
the effectivity of Republic Act No. 9346 entitled, “An Act
Prohibiting the Imposition of Death Penalty in the Philippines,” the
imposition of the supreme penalty of death has been prohibited.
Consequently, the penalty to be meted on appellant shall only be life
imprisonment and fine. Hence, the penalty of life imprisonment and
a fine of P500,000.00 were properly imposed on the accused-
appellant.
WHEREFORE, premises considered, the instant appeal is
DISMISSED. The decision of the Court of Appeals in CA-G.R. CR-
H.C. No. 01191 dated 23 August 2005 which affirmed in toto the
decision of the Regional Trial Court of Pasig City, Branch 164, in
Criminal Case No. 11566-D, finding accusedappellant Bernardo
Felizardo Nicolas, a.k.a. Bernie, guilty of violation of Section 5,
Article II of Republic Act No. 9165, is hereby AFFIRMED.
SO ORDERED.

          Ynares-Santiago (Chairp erson), Austria-Martinez and

Callejo, Sr., JJ., concur.

Appeal dismissed, judgment affirmed in toto.

Notes.—A “buy-bust” operation has long received judicial

sanction as long as it is carried out with due regard to constitutional
and legal safeguards. (People vs. Herrera, 247 SCRA 433 [1995])
The receipt for property seized purportedly signed by the accused
cannot be accepted as proof that the sticks of mari-

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People vs. Piliin

juana cigarettes, as well as the two P5.00 bills, were seized from him
where the prosecution failed to prove that he was assisted by counsel
at the time he signed such receipt. (People vs. Lacbanes, 270 SCRA
193 [1997])

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