G.R. No. 175319; January 15, 2010
People of the Philippines, Appellee vs. Joselito Noque y Gomez, Appellant

FACTS

Two Informations were filed against appellant Joselito Noque y Gomez before the Regional Trial Court (RTC) of Manila. In Criminal Case No. 01-189458, he was charged with the illegal sale of 2.779 grams and 2.729 grams of methamphetamine hydrochloride (shabu) in violation of Republic Act (RA) No. 6425. In Criminal Case No. 01-189459, he was charged with illegal possession of 679.215 grams of shabu. The prosecution’s evidence established that on January 30, 2001, a buy-bust operation was conducted at appellant’s house in Malate, Manila. PO1 Christian Balais acted as poseur-buyer and purchased two plastic sachets of suspected shabu from appellant using marked money. Upon the consummation of the sale, the buy-bust team entered and arrested appellant, recovering the buy-bust money and a “pranela” bag containing a large quantity of suspected shabu. Forensic examination by P/Insp. Miladenia Tapan revealed the seized substances were positive for ephedrine, a regulated drug, not methamphetamine hydrochloride as alleged in the Informations. The defense claimed frame-up, alleging he was arrested without a buy-bust operation. The RTC convicted appellant for both charges, ruling that ephedrine, a precursor of methamphetamine, was included in the offenses charged. It calculated the methamphetamine content by crediting testimony that a gram of ephedrine yields half a gram of methamphetamine, resulting in 2.754 grams for the sale and 339.6075 grams for possession. The Court of Appeals affirmed the conviction but modified the penalty for the sale charge. Appellant appealed to the Supreme Court.

ISSUE

Whether the Court of Appeals erred in affirming appellant’s conviction for illegal sale and possession of dangerous drugs despite a variance between the drug alleged in the Informations (methamphetamine hydrochloride) and the drug proved (ephedrine).

RULING

The Supreme Court affirmed the decision of the Court of Appeals. The Court held that the variance between the allegation and the proof did not violate appellant’s constitutional right to be informed of the nature of the accusation. The Informations specifically alleged violations of Sections 15 and 16 of RA 6425, which penalize the sale and possession of regulated drugs. While the Informations referred to “shabu” or methamphetamine hydrochloride, they were immediately qualified by the phrase “which is a regulated drug.” Ephedrine is a regulated drug pursuant to Dangerous Drugs Board Resolution No. 2, Series of 1988. The Court ruled that the offense charged (sale/possession of methamphetamine) necessarily includes the offense proved (sale/possession of ephedrine) because all essential elements of the former constitute the latter. Applying Sections 4 and 5, Rule 120 of the Rules of Court, an accused can be convicted of the offense proved which is included in the offense charged. The Court found the elements of illegal sale and illegal possession of regulated drugs were duly proven. The defense of denial and frame-up could not prevail over the positive testimonies of the police officers, and the integrity and evidentiary value of the seized drugs were preserved. The penalties imposed by the Court of Appeals were affirmed: for illegal sale (2.754 grams of methamphetamine), an indeterminate penalty of six months of arresto mayor as minimum to six years and one day of prision mayor as maximum; for illegal possession (339.6075 grams of methamphetamine), reclusion perpetua and a fine of P500,000.00.