Unnecessary

In the buy-bust operation for the illegal sale of prohibited drugs, is it necessary to present the poseur buyer as a witness and the marked money as evidence to prove the crime? This is the question raised and resolved in this case of Cardo.

The case against Cardo started when a confidential informant went to the office of the Police Drug Enforcement Group (DEG) and told the operatives that he might be able to set up a sale of shabu with a drug pusher in their Barangay. The Police then formed a surveillance team composed of SPO1 Bert, PO1 Rudy, SPO1 Mar and PO1 Alan.

The following day, the informant reported that he was able to arrange the sale of shabu at fast food outlet along the highway near the Bonifacio Monument in Caloocan. So the same surveillance team was formed into a buy-bust team with SPO1 Bert acting as poseur buyer, while SPO1 Mar and PO1 Rudy acting as lookouts. SPO1 Bert was then issued P8,400 marked money and was led by the informant to the place followed by SPO1 Mar and PO1 Rudy who took strategic positions to observe the transaction.

PO1 Rudy then saw Cardo who talked to the informant and SPO1 Bert and then the three boarded a vehicle and proceeded to a street in Malabon. PO1 Rudy and SPO1 Mar followed them discreetly. Along the street, PO1 Rudy saw Cardo meet a teenager carrying a child and then pulled out two sachets from the child’s diaper and handed the sachets to SPO1 Bert who in turn gave the marked money. Thereafter, PO1 Rudy and SPO1 Mar approached Cardo, arrested him and retrieved the two sachets which turned out to be shabu. SPO1 Mar recovered the marked money from Cardo. Then the three police officers informed Cardo of his constitutional rights and proceeded to his residence where they retrieved a large package containing shabu from a hole dug into the stairway of his house.

On November 22, 1999, Cardo was charged with illegal sale and illegal possession of shabu. At the trial, only PO1 Rudy and SPO1 Mar were presented as witnesses because SPO1 Bert was already assigned in the Visayas. PO1 Rudy testified on the exchange of the two sachets of shabu and marked money between SPO1 Bert and Cardo. SPO1 Mar testified that he was the one who recovered the marked money although it was not presented in court as evidence.

After trial the RTC convicted Cardo of both crimes charged. On appeal the Court of Appeals (CA) affirmed the conviction for illegal sale but acquitted Cardo of the crime of illegal possession because the search conducted on Cardo’s residence was without warrant.

Cardo still questioned this CA decision. He contended that he should also be acquitted of the crime of illegal sale since SPO1 Bert the poseur buyer was not presented as witness and the marked money was not presented as evidence to prove that such sale really happened. Was Cardo correct?

 No. A buy-bust operation is a form of entrapment whereby ways and means are resorted to for the purpose of trapping and capturing the lawbreakers in the execution of their criminal plan. For the successful prosecution of the illegal sale of shabu, the following elements must be established: (1) the identity of the buyer and the seller, the object of the sale and the consideration; and (2) the delivery of the thing sold and its payment. What is material is that the sale actually took place coupled with the presentation in court of the corpus delicti as evidence. Thus, the delivery of the illicit drug to the poseur buyer and the receipt by the seller of the marked money consummate the buy bust transaction.

The failure of the SPO1 Bert the poseur buyer to testify is not fatal to the prosecution. The testimonies of PO1 Rudy and SPO1 Mar who saw the illicit transaction as both of them positioned themselves at a strategic location were enough to prove that the sale took place. Cardo was caught in flagrante during the buy-bust operation as testified by both. Unless there is clear and convincing evidence that they were inspired by any improper motive or were not performing their duty, and none has been adduced by the defense, their testimonies deserve full faith and credit. The identity of Cardo also cannot be doubted as he was caught in flagrante.

The failure to present the buy-bust money is likewise not fatal. The marked money is not indispensable but merely corroborative in nature. Its absence does not create a hiatus in the evidence for the prosecution as long as the sale of the dangerous drugs is adequately proven and the drug subject of the transaction is presented in court (Cruz vs. People, G.R. 164580, February 6, 2009).

Note: Books containing compilation of my articles on Labor Law and Criminal Law (Vols. I and II) are now available. Call tel. 7249445.

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