Republic of the Philippines

PROVINCE OF ISABELA
Municipality of Tumauini
PEOPLE’S LAW ENFORCEMENT BOARD (PLEB)

HERO MONDRAGON,
Complainant,

-versus-

P/CI NOEL MAGBITANG,

PSI JOJO G. TURINGAN,
SPO2 CANDIDO CARANTO,
PO3 REDENTOR CAGURANGAN,
PO2 REYNANTE PINUGU,
PO3 ARNEL BAQUIRAN,
PO2 DINDI BAQUIRIN,
Respondents.
x------------------------------------------x

ADMIN CASE NO. 18-001

For: Grave Misconduct

POSITION PAPER
(For the Respondents)

The undersigned counsel for the RESPONDENTS in the above-

entitled case, most respectfully submit this POSITION PAPER, and avers:

PREFATORY STATEMENT
(In Tagalog)

Ang Pulis, kami ang inyong nilalapitan, hindi man

kami PULITIKO nagbibigay kami ng tulong galing sa
 POSITION PAPER
Mondragon vs. PCI Magbitang, et al.
Page 2 of 12
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aming bulsa. Hindi man kami nasa DENR ngunit

hinuhuli namin ang mga lumalabag sa kalikasan.
Hindi man kami DSWD ngunit sa amin dinadala ang
mga batang lansangan at mga may kakulangan sa pag-
iisip. Hindi man kami mga DIVERS ngunit kami ang
sumisisid kapag may nalulubog o nalulunod. Hindi
man kami nasa PAGASA ngunit kami ang nagbibigay
sa tao ng mga babala. Hindi man kami mga BFP ngunit
tinatawagan pa rin kami pag may sunog. Hindi man
kami BJMP ngunit sa amin ang mga tao
magpapatulong kung may gustong ipakulong lalong di
man kami nasa MERALCO ngunit tinatawagan kami
kapag may natumbang mga kawad ng kuryente. Hindi
man kami DOCTOR ngunit tinatawagan kami pag may
naaksidente. Hindi rin kami MUTANTS ngunit 24/7 po
ang paglilingkod namin at ni minsan hindi po kami
nagsara ng aming Himpilan. Wala kaming
tinatalikuran kahit saan, kahit ano basta may
kinalaman sa trabaho.

STATEMENT OF THE CASE

This administrative complaint stemmed from the allegations of the

complainant that herein respondents under the guise of the current drive
of the government against the proliferation of dangerous drugs, with
malice afterthought and evident criminal design, planned to arrest the
complainant, without securing the necessary judicial warrant, nor under
the circumstances of a valid warrantless arrest.

The complainant averred that in the afternoon of 17 February 2018,

while he and his friends were at the race track for motocross somewhere in
San Pedro, Tumauini, Isabela, he was arrested by the respondents and
eventually when he was brought to the Tumauini Police Station, he was
accused by the respondents of having sold marijuana to a police poseur-
buyer. Moreover, he averred that his personal belongings were forcibly
taken from him by the respondents and that the latter committed perjury
and falsification of several documents if only to facilitate the filing of a
criminal action against him.

Not contented with the filing of this instant administrative

complaint, the complainant also instituted a criminal action against all the
respondents with the Office of the Provincial Prosecutor of Isabela for

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Illegal Arrest, Violation of Section 29, R.A. 9165, Falsification of Office

Documents, Perjury and Robbery.

On the other hand, respondents and the PDEA instituted a criminal

action against the complainant for Violation of Section 5, Article II of R.A.
9165 with the Office of the Provincial Prosecutor of Isabela.

When complainant was brought for inquest before the Prosecutor’s

Office, he waived his rights under Article 125 of the Revised Penal Code.
The Prosecutor’s Office eventually issued a resolution recommending the
filing of an Information against the complainant since it found probable
cause. Consequently, the complainant was charged before the Regional
Trial Court of Cabagan, Isabela, Branch 22 of the crime of Violation of
Section 5, Article II of R.A. 9165.

In answer to the charge of Grave Misconduct, respondents claim

that the arrest of the complainant was a result of a thorough validation of
the information relayed to them to the effect that the complainant was
involved in peddling illegal drugs. His eventual arrest was a legitimate
buy bust operation and that this police operation is properly and regularly
documented in accordance with what is required by law.

ARGUMENTS AND DISCUSSIONS

The charge of grave misconduct

was made by the complainant to
get even with the respondents.

Complainant wants to make hay of his baseless charge that

respondent police officers have committed grave misconduct in effecting
his arrest through a buy bust operation. He attempts to deflect the strong
evidentiary basis of his arrest - i.e., that he was caught in a buy bust
operation red-handed in the act of selling marijuana. This is a convenient
excuse that has been discredited by case law,[1] thus -

In any criminal prosecution, the defenses of

denial and frame-up, like alibi, are considered weak
defenses and have been invariably viewed by the
courts with disfavor for they can just as easily be
concocted but are difficult to prove. Negative in
their nature, bare denials and accusations of frame-

1
People v. Nathaniel Pasion, G.R. No. 203026, 28 January 2015.

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up cannot, as a rule, prevail over the affirmative

testimonies of truthful witnesses.

The foregoing principle applies with equal, if

not greater, force in prosecutions involving
violations of [R.A. No.] 9165, especially those
originating from buy-bust operations. In such cases,
the testimonies of the police officers who conducted
the buy-bust operations are generally accorded full
faith and credit, in view of the presumption of
regularity in the performance of public duties.
Hence, when lined up against an unsubstantiated
denial or claim of frame-up, the testimonies of the
officers who caught the accused red-handed are given
more weight and usually prevail.

In order to overcome the presumption of

regularity, jurisprudence teaches us that there must
be clear and convincing evidence that the police
officers did not properly perform their duties or that
they were prompted with ill motive. (Emphasis and
underscoring ours)

Here, the considerable consistency in the sworn statements of the

respondent police officers as to the conduct of surveillance and the
eventual buy bust operation against complainant Hero C. Mondragon
provides a veritable wall that has proved impregnable by the bare
accusations of frame-up by the latter. Absent a showing that there is a
conscious doing of a wrong or an intentional and repeated violation of an
established rule or procedure, there is no grave misconduct. Imperial, Jr.
v. GSIS[2] decided by the High Court en banc, finds relevance -

Flagrant disregard of rules is a ground that

jurisprudence has already touched upon. It has been
demonstrated, among others, in the instances when
there had been open defiance of a customary rule; in
the repeated voluntary disregard of established rules
in the procurement of supplies; in the practice of
illegally collecting fees more than what is prescribed
for delayed registration of marriages; when several
violations or disregard of regulations governing the
collection of government funds were committed; and
when the employee arrogated unto herself

2
G.R. No. 191224, 04 October 2011, citing Narvasa v. Sanchez, Jr., G.R. No. 169449, 26 March
2010; Roque v. Court of Appeals, G.R. No. 179245, 23 July 2008; Bulalat V. Adil (537 SCRA 44,
49); and Valera v. The Ombudsman, G.R. No. 167278, 23 February 2008.

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responsibilities that were clearly beyond her given

duties.  The common denominator in these cases
was the employee’s propensity to ignore the rules as
clearly manifested by his or her actions. (Emphasis
in the original)

There is here a clear dissonance between the high bar set by the law
on what constitutes the administrative offense of grave misconduct and
the obvious hairsplitting arguments put forward, rather unconvincingly,
by the complainant. Juxtaposed with Hero’s unmistakable violation of the
penal laws against the illegal sale of prohibited drugs, the assailed acts of
herein respondent public officers - impressed as they are with the
presumption of regularity in the performance of official duty - are far from
constituting any misconduct, much less one that can be characterized as
grave. As to what specific acts of the respondents show their propensity
“to ignore the rules as clearly manifested by his or her actions” the
complainant does not categorically say. Indeed, it would be the height of
underhandedness to penalize these upright officers of the law on the basis
of a scattershot charge that finds no basis even in complainant’s allegations;

Verily, how the regular carrying out of a legitimate buy bust

operation by police officers trained precisely to affect the same can
constitute misconduct of any sort should beguile any reasonable mind.
The fact that it is being raised by a party who himself has been caught in
the same regular operation is patent nitpicking - absent any concrete
averment as to the particular acts constituting gross or intentional
violation of an established rule or procedure;

The Office of the Provincial

Prosecutor of Isabela dismissed the
criminal charges that complainant
instituted against the respondents.

As previously stated, the complainant herein instituted a criminal

action against the respondents founded on the same set of circumstances
now the subject of this administrative case. The pertinent portion of the
resolution[3] is hereunder quoted:

“It is true that in some cases, law enforcers

resort to the practice of planting evidence in order
to harass, nevertheless the defense of frame-up in
drug cases requires strong and convincing
evidence because of the presumption that the

3
Annex “1” hereof.

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police officers performed their duties regularly

and that they acted within the bounds of their
authority.[4]
It is in the Rules of Court[5] that:
“The following presumptions are
satisfactory if un-contradicted, but may be
contradicted and overcome by other evidence:

xxxx

m. The official duty has been regularly

performed;”

(emphasis supplied)

Frame-up, like alibi, is generally viewed

with caution because it is a shop-worn defense of
the accused in drug-related cases, the allegation
being easily concocted or contrived. [6] For this
claim to prosper, the defense must adduce clear
and convincing evidence to overcome the
presumption of regularity of official acts of
government officials.[7] Jurisprudence teaches us
that there must be clear and convincing evidence
that the police officers did not properly perform
their duties or that they were prompted with ill
motive.[8]
In the present complaint, the respondents
are able to satisfactorily establish the following:
(1) They conducted prior surveillance as early as
2 January 2018 per Information Report submitted
to the Provincial Director of the PNP; (2) Prior to
the conduct of the joint buy-bust operation
against herein complainant, there was proper
coordination by the PNP of Tumauini, Isabela
with the PDEA as evidenced by the coordination
Form with Control No. 1000-022018-0053; (3)
There was briefing and tasking as regards the
joint buy-bust operation; (4) After the buy-bust

4
Chan v. Secretary of Justice, G.R. 147065, 14 March 2008, 548 SCRA 337, 353; Dades v. People,
G.R. No. 171487, 14 March 2008, 548 SCRA 643, 658.
5
Sec. 3, Rule 131, Rules of Criminal Procedure.
6
Susan Esquillo v. People, G.R. No. 182010, August 25, 2010.
7
Ibid.
8
People v. Pasion, G.R. No. 203026, January 28, 2015.

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and apprehension of complainant, the inventory,

marking and photographing immediately ensued
at the police station in the presence of herein
complainant, as well as a barangay official and a
representative of the DOJ; (5) The sub-confirmed
to be a dangerous drug per Chemistry Report No.
IDD-19-2018; (6) The relevant events as regards
the buy-bust operation involving complainant
were duly recorded in the police blotter; (7)
complainant was brought to the Office of the
Provincial Prosecutor for inquest; and (8) There
was a finding of probable cause by the
inquest/investigating prosecutor to indict herein
complainant for violation of Section 5, Article II of
R.A. No. 9165.

All the foregoing are indicia that herein

respondents indeed performed their duties ith the
requisite regularity.

Complainant insists that he was merely

framed up by the lackey of respondent
Magbitang who was in possession of the planted
evidence when he was arrested by the police. He
posits therefore that this so called frame up was
with the knowledge and conspiracy of herein
police officers involved in the alleged buy-bust
operation resulting in his apprehension.
However, complainant failed to proffer
convincing proof of the alleged ill-motive of
herein respondents to pin him down for a crime
he claims he did not commit. He has not shown
that respondents were impelled by unlawful and
dubious motives or that they have tried to extort
money from him except that these police officers
were motivated to reach their quota involving
dangerous drugs cases. This allegation is mere
speculation underserving of any merit. Moreover,
such conjecture still does not answer the question
why it was complainant who was targeted by
respondents.

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It also bears stress that per Rough Sketch

provided by herein respondent shows that the
place of transaction is about thirteen (13) meters
across Bariud Farms which incidentally is
relatively near the entrance or “bukana,
labasan/pasukan” of the racetrack per Judicial
Affidavit of complainant himself. There is thus no
substantial variance in the place where
complainant claims he was picked up by the
police and the place where the buy-bust was
conducted. In any case, to establish alibi,
respondent must prove (a) that he was present at
another place at the time of the perpetration of
the crime, and (b) that it was physically
impossible for him to be at the scene of the crime.
[9 ]
Physical impossibility “refers to the distance
between the place where the accused was when
the crime transpired and the place where it was
committed, as well as the facility of access
between the two places.”[10] In the present
complaint, respondent does not deny the fact that
he is in fact in San Pedro, Tumauini, Isabela.

Complainant also claims that he knows

respondent Cagurangan as a police officer.
However, he failed to establish the circumstances
under which he came to know or his familiarity
with said respondent. This Office cannot lend
credence to such bare claim as anyone could just
make such claim.

As to the affidavits of complainant’s

friends, suffice it to say that they have every
reason to aid their friend. Their bare testimonies
still do not prove ill-motive on the part of herein
respondents. Moreover, this Office notes the
recantation of one of complainant’s witnesses in
the person of Rafael Franco, who allegedly
witnessed certain events at the police station
when complainant was brought there and that he
just signed his previous affidavit without reading
it because complainant’s mother was rushing him
9
People v. Saban, 319 SCRA, 36, 46 (1999); People v. Reduca, 301 SCRA 516, 534 (1999).
10
People v

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to sign the same. He was likewise offered by

complainant’s mother the amount of Php2,000.00
in exchange of his testimony favorable to his son,
which he refused because he claims he did not
witness anything.

With respect to the allegation that

complainant had no reason to deal in drugs as
they have legal source of income and in fact he
has Php17,000.00 in his possession at the time of
his arrest is immaterial. Motive is not an element
of the crime of illegal sale of dangerous drugs.

In conclusion, the narration of the

incident by law enforcers, strengthened by the
presumption that they have regularly performed
their duties and coupled with lack of dubious
motive, must be give weight and should prevail
over complainant’s and his witnesses’ bare
testimonies.

Considering that all the other charges such

as Illegal Arrest, Falsification of Official
Documents, Perjury and Robbery are anchored
on and are mere by-products of the charge of
“planting of evidence”, this Office thus finds that
the others must necessarily fall in view of the
paucity of evidence to support the complaint for
the latter. As there appears to be a legitimate buy-
bust operation where complainant was caught in
flagrante delicto, the police officers cannot be
held liable for illegal arrest, falsification of official
documents and perjury for complainant’s arrest
and the execution of their respective affidavits
and of the supporting official documents for
purposes of filing charges against complainant
for the crime he committed. In addition, for
failure of complainant to establish the existence of
his iPhone 5 and the identity of the person who
allegedly forcibly took it from him, the charge for
robbery must fail.”

-(underscoring supplied)-

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CONCLUSION

Here, the complainant undeniably has an axe to grind on against

respondents because of his arrest and the criminal charge he is now facing.
What respondents did are in accordance with law as they were not
impelled by any ulterior motive. It was their job plain and simple. Absent
proof to the contrary, a public officer enjoys the presumption of regularity
in the performance of his official functions. Government officials are
presumed to perform their functions with regularity and strong evidence
is necessary to rebut this presumption;[11]

It is basic that in administrative proceedings, the burden of proving,

by substantial evidence, the truthfulness of the allegations on the
complaint rest on the complainant.[12] Only substantial evidence, or that
amount of relevant evidence which a reasonable mind might accept as
adequate to support a conclusion, is required. [13] In this case, the
complainant utterly failed to satisfactorily discharge such burden;

PRAYER

WHEREFORE, it is most fervently prayed of this Honorable Office

to DISMISS this administrative complaint against all respondents there
being no substantial evidence to support the same.

Such other relief and remedy that is deemed just and equitable
under the circumstances are being prayed for.

Santiago City for Tumauini, Isabela, 9 August 2018.

THE LAW OFFICES OF DAMASEN & SUBIA

Unit 5, Mango Suites, Calao East, Santiago City
E-mail: lmdlawoffice@gmail.com
Mobile No.: 09178730405
Tel. No.: (078) 305-2392

By:

11
Tatas vs. Garcia, G.R. No. 114222, 1995.
12
Honorable Ombudsman Simeon V. Marcelo v. L e o p o l d o F. B u n g u b u n g A n d H o n. C o u r t o f
A p p e a l s , G . R. N o. 1 7 5 2 0 1, April 23, 2008.
13
Aranda, Jr. v. Alvarez, A.M. No. P-04-1889, November 23, 2007, 538 SCRA 162.

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ATTY. LUCKY M. DAMASEN

Counsel for the Respondents
MCLE Compliance No. V-008089/06-04-15
PTR No. 2398537/Santiago City/01-03-2018
IBP No. 021276/IBP National Office, Pasig City/01-05-2018
Roll No.37959/07-24-92

REPUBLIC OF THE PHILIPPINES}

SANTIAGO CITY}:s.s.
X----------------------------------------------X

VERIFICATION

I, PCI NOEL C MAGBITANG, of legal age, married, Filipino and a

resident of Reyes Extension, Ugac Norte, Tuguegarao City, Cagayan, of
legal age, married and a Filipino, after having been duly sworn to in
accordance with law, do hereby deposes and states:

1. That I am one the respondents in the above-entitled case;

2. That I have caused the preparation of the foregoing Position

Paper;

3. That I have read and understood all the allegations contained

herein which are true and correct of my own personal knowledge;

IN WITNESS WHEREOF, I have hereunto set my hand this ____

day of August, 2018 at Santiago City.

PCI NOEL C MAGBITANG

Affiant
PNP I.D. No. 16H310514

SUBSCRIBED AND SWORN before me this ____ day of August,

2018 at Santiago City; Affiant exhibited to me his identifying evidence as
required by the Rules; who signed the said instrument in my presence. I

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further certify that I have personally examined the affiant and I am

convinced that the same is his own free and voluntarily act and deed.

Doc. No. ____

Page No. ____
Book No. ____
Series of 2018

Copy furnished:

Atty. Alberto G. Garcia

Counsel for the Complainant
Lalauan, Tumauini, Isabela
/by reg. mail w/ ret. card

EXPLANATION
(Pursuant to Section 11; Rule 13
of the 1997 Rules of Civil Procedure)

Copy of this Position Paper was duly served to Atty. Alberto G.

Garcia via registered mail with return card, instead of personal service,
due to distance, time constraints and lack of personnel to effect personal
service.

RYAN JAY P. BAÑEZ

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