FACTS:

VERSION OF THE PROSECUTION:

Police officer Luciano instructed his informer to buy drugs from gesmundo at Cocoland
Hotel. During the said transaction. He actually saw the accused selling marijuana to his
civilian informer by the door outside the house of the accused. Immediately thereafter,
that same day Luciano applied for a search warrant.
He, together with a raiding police team armed with Search Warrant No. 10 issued by
Hon. Judge Atanacio ,went to the residence of the Brgy. Capt. Angel Capuno for
them to be accompanied by him in serving the said warrant at the residence of
Gesmundo
The accused led the team into her kitchen and she pointed to a metal basin on top of
a table as the hiding place of the dried marijuana flowering tops contained in a plastic
bag marked ISETANN.
The police also recovered from a native "uway" cabinet dried marijuana flowering tops
wrapped separately in three (3) pieces of Komiks paper.
After the discovery, the accused was photographed together with the confiscated
items. Thereafter, accused was made to acknowledge in writing that the dried
marijuana flowering tops were taken from her possession and control inside her
residence. Brgy. Capt. Capuno also affixed his countersignature thereto.
"The police forthwith brought the accused to the police station
"the NBI Forensic Chemist Salud Manguba issued a Certification with a finding that per
preliminary examination which she made, the confiscated items gave positive results
for marijuana (
GESMUNDOS VERSION
While inside her house, a jeep with policemen on board arrived and Sgt. Yte was
invited by accused appellant to enter the house while PFC Luciano was left in the jeep
that was parked near the house. (TSN, p 4, ibid).
While seated at the sala, Sgt. Yte was showing to accused-appellant something which
he claimed to be a search warrant when someone uttered the following words "ito na"
coming from the direction where the kitchen of the house is.
She, together with Sgt. Yte proceeded to the kitchen and saw PFC Luciano holding a
plastic bag with four other companions who entered the house through the back door
which was opened at that time.
Luciano handed the bag to Sgt. Yte who, after examining the contents, confronted
the accused-appellant and insisted that the plastic bag came from her.
She vehemently denied the accusation of Sgt. Yte and told him that she does not
know anything about it.
But Sgt. Yte persisted and accused-appellant, who was then seven (7) months on the
family way, was seized by abdominal pains which made her cry. Then she was made
to sign a prepared document with her name already printed on it.
Under extreme pressure and promised that they will just talk with her at the City Hall,
accused-appellant was constrained to sign said document. Afterwards, she was
brought to the police station and detained.
That before the incident in question, Sgt. Yte asked help from accused-appellant to
testify against one Warner Marquez, son of her former landlord, for drug pushing.
Accused refused, reasoning out that it would be unfair since she is totally unaware of
this thing. But Sgt. Yte remained undaunted and was forcing her for the second time to
testify against Marquez. Spurned, Sgt. Yte left word that she, accused, should be
careful as she might be the next to be charged with drug pushing. (TSN, pp. 11-13,
ibid)."
TC: CONVICTED
ARGUMENTS
the evidence presented were illegally seized and or planted evidenced.
There were variance and material contradictions in the testimony.
ISSUE: Whether or not Gesmundo should be convicted?
HELD: Judgment reversed, appellant is acquitted of the crime charged.
RATIO:

The accused-appellant's conviction by the lower court is anchored on the marijuana

seized in her possession and control by virtue of a Search Warrant issued by Judge
Atanacio.
Her arrest did not result from a "buy-bust" operation supposedly conducted by police
officers.
The controversy centers on the allegation by the accused-appellant that the
marijuana supposedly seized by the raiding police team in her possession, was
planted by the police officers.

INCONSISTENCIES IN THE TESTIMONY (where marijuana was found)

The Investigation Report prepared by Pfc. Jose V. Luciano During the search we
discovered a hole at the backyard of the house of the suspect with a big biscuit can
inside the hole and on top of the cover a flower pot was placed wherein the
marijuana were kept. Confiscated were more or less 100 grams of dried marijuana
leaves and three rolls of magazine newspaper containing marijuana which is ready for
disposal."
On direct examination, however, Pfc. Luciano said that the marijuana leaves
contained inside the plastic bag covered by a basin weighed about 800 grams since
he himself weighed them on the weighing scale found in the accused-appellant's
house; and he also saw other marijuana wrapped in a komiks magazine found in an
uway cabinet or rattan cabinet.
Sgt. Bayani Yte, on the other hand, affirmed the investigation report when he testified
that during the search, they found dried marijuana leaves, more or less 100 grams on
top of the dining table, placed inside a plastic bag and covered by a metal basin.
In all their testimonies, there was no mention of any marijuana obtained from a flower
pot placed on top of a biscuit can inside a hole at the backyard of the accused's
house as stated in the investigation report.
It would seem that the raiding party "could not put their act together", as to how much
marijuana was recovered and where.
The trial court held that the fact of discovery of the hole at the backyard was merely
for the purpose of reporting the hiding place of the marijuana. But how, it may be
asked, could one conclude that it was the hiding place, if no marijuana was actually
seen inside?
INCONSISTENCY (FOUND OR WERE GIVEN?)
Pfc. Luciano pointed out during his direct examination that it was the accusedappellant who actually gave the marijuana leaves to Sgt. Yte in the kitchen, and that
he (Pfc. Luciano) was asked by Sgt. Puhawan to come inside the house and they saw
the other marijuana leaves wrapped in a magazine located at the uway cabinet.
Unfortunately, Sgt. Yte contradicted Pfc. Luciano's testimony.
During his cross examination, Sgt. Yte asserted that the marijuana leaves were
surrendered by the accused-appellant to Pfc. Luciano upon the presentation of the
search warrant and before the search was actually conducted.
When asked to explain why their inconsistent statements, Sgt. Yte merely answered:
"That was the testimony of Pat. Luciano that accused personally . .
We do not agree with the trial court in its conclusion that these discrepancies are trivial.
We must be absolutely convinced that marijuana was actually surrendered by the
accused-appellant and not planted as claimed by her
SEARCH WARRANT CONDUCTED INVALIDLY
Furthermore, the claim of the accused-appellant that the marijuana was planted is
strengthened by the manner in which the search was conducted by the police
authorities.
The accused-appellant was seated at the sala together with Sgt. Yte when they heard
someone in the kitchen uttered "ito na".
Apparently, the search of the accused-appellant's house was conducted in violation
of Section 7, Rule 126 of the Rules of Court which specifically provides that no search of
a house, room or any other premise shall be made except in the presence of the
lawful occupant thereof or any member of his family or in the absence of the latter, in
the presence of two (2) witnesses of sufficient age and discretion residing in the same
locality.
This requirement is mandatory to ensure regularity in the execution of the search
warrant.

Violation of said rule is in fact punishable under Article 130 of the Revised Penal Code.
19

PAGPAPATUNAY OBTAINED IN VIOLATED OF HER RIGHTS

It is true that the police were able to get an admission from the accused-appellant
that marijuana was found in her possession but said admission embodied in a
document entitled "PAGPAPATUNAY" previously prepared by the police, is inadmissible
in evidence against the accused-appellant for having been obtained in violation of
her rights as a person under custodial investigation for the commission of an offense.
The records show that the accused-appellant was not informed of her right not to sign
the document; neither was she informed of her right to the assistance of counsel and
the fact that the document may be used as evidence against her.
NO PROOF OF THE EVIDENCE SAME MARIJUANA
The accused-appellant also contends that the prosecution failed to present evidence
to prove that the marijuana marked as exhibit in court are the same marijuana
allegedly confiscated by the police from her. The contention is well taken
He is required to deliver the property seized to the judge who issued the warrant,
together with a true and accurate inventory thereof duly verified under oath.
Again, these duties are mandatory and are required to preclude substitution of the
items seized by interested parties.
Having made no return or inventory to the warrant-issuing court, there is no proof that
the police really found marijuana in the house of the accused.
ALSO
-

Undisputedly, the accused-appellant was not caught in the act of selling marijuana.
Sgt. Yte himself testified during cross-examination that accused-appellant was not
actually dispensing marijuana when the search warrant was served.
Neither was the marijuana, object of the supposed sale, presented in court to support
the allegation of the prosecution that accused-appellant was engaged in the sale of
marijuana.