Case Digest: People vs. Nuque, G.R. No. 175319, January 15, 2010

                          Rule 115: Rights of the Accused  | Criminal Procedure

                        Right to be Informed of the Nature and Cause of the Accusation

Facts:

Joselito Noque was charged with the sale of 2.779 grams and 2.729 grams of "shabu" (methamphetamine hydrochloride), a regulated drug. He was also charged with the possession of 679.215 grams of "shabu" without the corresponding license or prescription.

A buy-bust operation was conducted, during which Noque was caught selling and possessing "shabu." The seized substances were examined and confirmed to be ephedrine, a precursor of methamphetamine.

Noque pleaded not guilty and presented a defense of denial and frame-up.

The trial court found Noque guilty of both charges, while the Court of Appeals affirmed the decision.

RTC: While the Informations alleged methamphetamine hydrochloride as the drug seized from the appellant, the drug actually confiscated which was ephedrine, is a precursor of methamphetamine, i.e., methamphetamine is an element of, and is present in ephedrine. Ephedrine is the raw material while methamphetamine is its refined product. Both drugs have the same chemical formula except for the presence of a single atom of oxygen which when removed by means of chemical reaction changes ephedrine to methamphetamine. Thus, the trial court ruled that the appellant can be convicted of the offenses charged, which are included in the crimes proved. The trial court further held that under Section 4, Rule 120 of the Rules of Court, a variance in the offense charged in the complaint or information and that proved shall result in the conviction for the offense charged which is included in the offense proved.

CA: While the allegations in the Informations refer to unauthorized sale and possession of "shabu" or methamphetamine hydrochloride, and not of ephedrine, the allegations are however immediately followed by the qualifying phrase "which is a regulated drug." Stated differently, the CA held that the designations and allegations in the informations are for the crimes of illegal sale and illegal possession of regulated drugs. There being no dispute that ephedrine is a regulated drug, pursuant to Board Resolution No. 2, Series of 1988, issued by the Dangerous Drugs Board on March 17, 1988, the CA ruled that the appellant is deemed to have been sufficiently informed of the nature of the crime with which he is accused. The fact that the chemical structures of ephedrine and methamphetamine are the same except for the presence of an atom of oxygen in the former strengthens this ruling.

Issue:

WON Joselito Noque conviction for the sale and possession of shabu, despite the fact that what was established and proven was the sale and possession of ephedrine, violated his constitutional right to be informed of the nature and cause of the accusations against him since the charges in the Informations are for selling and possessing methamphetamine hydrochloride.

Held:  NO.

We agree with the findings of the CA and the trial court, as well as the testimony of the forensic chemical officer, that the drug known as ephedrine has a central nervous stimulating effect similar to that of methamphetamine. In fact, ephedrine is an important precursor used in the clandestine synthesis of methamphetamine, which in crystallized form is methamphetamine hydrochloride.

Thus, on March 17, 1988, pursuant to Section 20(8) of RA 6425, as amended, the Dangerous Drugs Board in its Board Regulation No. 2, S. 1988, classified as regulated drug all raw materials of ephedrine, as well as preparations containing the said drug. The chemical formula of ephedrine is C10 H15 NO, whereas that of methamphetamine is C10 H15 N. The only difference between ephedrine and methamphetamine is the presence of a single atom of oxygen in the former. The removal of the oxygen in ephedrine will produce methamphetamine. With ephedrine containing fifty percent (50%) of methamphetamine hydrochloride if the oxygen content in the former is removed, the nearly 680 grams of ephedrine seized from the appellant contains about 340 grams of methamphetamine hydrochloride.

Moreover, as correctly observed by CA, the offenses designated in the Informations are for violations of Sections 15 and 16 of RA 6425, which define and penalize the crimes of illegal sale and possession of regulated drugs. The allegations in the Informations for the unauthorized sale and possession of "shabu" or methamphetamine hydrochloride are immediately followed by the qualifying phrase "which is a regulated drug". Thus, it is clear that the designations and allegations in the Informations are for the crimes of illegal sale and illegal possession of regulated drugs. Ephedrine has been classified as a regulated drug by the Dangerous Drugs Board in Board Resolution No. 2, Series of 1988.

The CA correctly ruled that Sections 4 and 5, Rule 120 of the Rules of Court, can be applied by analogy in convicting the appellant of the offenses charged, which are included in the crimes proved. Under these provisions, an offense charged is necessarily included in the offense proved when the essential ingredients of the former constitute or form part of those constituting the latter. At any rate, a minor variance between the information and the evidence does not alter the nature of the offense, nor does it determine or qualify the crime or penalty, so that even if a discrepancy exists, this cannot be pleaded as a ground for acquittal. In other words, his right to be informed of the charges against him has not been violated because where an accused is charged with a specific crime, he is duly informed not only of such specific crime but also of lesser crimes or offenses included therein.