My Lecture Notes on RA 9165

MY LECTURE NOTES ON REPUBLIC ACT NO. 9165 BY: Executive Judge PABLO CABILLAN FORMARAN III

What is Republic Act No. 9165? This Act is known as the “Comprehensive Dangerous Drugs Act of 2002,” which was passed into law on June 7, 2002, overhauls the 30-year old Dangerous Drugs Act of 1972 (R.A. 6425). The new law increases the penalties for drug related offenses while placing more emphasis on the rebuilding of lives through rehabilitation and treatment.1 When did it take effect? This law was enacted on June 7, 2002, and was published in two newspapers of general circulation (namely, the Manila Times and Manila Standard) on June 19, 2002 and in the Official Gazette (Vol. 98 No. 32 page 4325) on August 12, 2002. It became effective fifteen (15) days from their publication.2 What are the acts punished under the law? The law penalizes the following unlawful acts: 1. Importation of Dangerous Drugs and/ or Controlled Precursors and Essential Chemicals – the penalty is life imprisonment to death and a fine ranging from P500 Thousand – P10 Million for dangerous drugs; for controlled precursors and essential chemicals, the penalty is 12 years and 1 day to 20 years and a fine ranging from P100 Thousand to P500 Thousand. 2. Sale, Trading, Administration, Dispensation, Delivery, Destribution and Transportation of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals – the penalty is life imprisonment to death and a fine ranging from P500 Thousand – P10 Million for dangerous drugs; for controlled precursors and essential chemicals, the penalty is 12 years and 1 day to 20 years and a fine ranging from P100 Thousand to P500 Thousand. 3. Maintenance of Den, Dive or Resort – the penalty is life imprisonment to death and a fine ranging from P500 Thousand – P10 Million if dangerous drug is used or sold in any form; if controlled precursor and essential chemical is used or sold, the 1 A Primer on the Dangerous Drugs Act by Congressman Antonio V. Cuenco (Principal Sponsor of R.A. No. 9165), p. 2. 2 Section 102, Republic Act 9165

My Lecture Notes on R.A No. 9165

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penalty is 12 years and 1 day to 20 years and a fine ranging from P100 Thousand to P500 Thousand. 4. Employees and Visitors of a Den, Dive or Resort – the penalty is 12 years and 1 day to 20 years and a fine ranging from P100 Thousand to P500 Thousand. 5. Manufacture of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals – the penalty is life imprisonment to death and a fine ranging from P500 Thousand – P10 Million if dangerous drug is manufactured; if controlled precursor and essential chemical are manufactured, the penalty is 12 years and 1 day to 20 years and a fine ranging from P100 Thousand to P500 Thousand. 6. Illegal Chemical Diversion of Controlled Precursors and Essential Chemicals – the penalty is 12 years and 1 day to 20 years and a fine ranging from P100 Thousand to P500 Thousand. 7. Manufacture or Delivery of Equipment, Instrument, Apparatus, and other Paraphernalia for Dangerous Drugs and/or Controlled Precursors and Essential Chemicals – the penalty is 12 years and 1 day to 20 years and a fine ranging from P100 Thousand to P500 Thousand. 8. Possession of Dangerous Drugs – the penalty is life imprisonment to death and a fine ranging from P500 Thousand – P10 Million ( Note: Depending of the quantity of any dangerous drugs enumerated). 9. Possession of Equipment, Instruments, Apparatus and Other Paraphernalia for Dangerous Drugs – the penalty is from 6 months and 1 day to 4 years and a fine ranging from P10 Thousand – P50 Thousand. 10. Possession of Dangerous Drugs During Parties, Social Gatherings or Meetings – the penalty is life imprisonment to death and a fine ranging from P500 Thousand – P10 Million, regardless of the quantity and purity of such dangerous drugs. 11. Possession of Equipment, Instruments, Apparatus and Other Paraphernalia for Dangerous Drugs During Parties, Social Gatherings or Meetings – the maximum penalty is 6 months and 1 day to 4 years and a fine ranging from P10 Thousand – P50 Thousand. 12. Use of Dangerous Drugs – the penalty is 6 months in rehabilitation center for the first offense; for the second offense – 6 years and 1 day to 12 years and a fine ranging from P50 Thousand – P200 Thousand. 13. Cultivation or Culture of Plants Classified as Dangerous Drugs – the penalty is life imprisonment to death and a fine ranging from P500 Thousand – P10 Million. 14. Failure to Maintain and Keep Original Records of Transactions on Dangerous Drugs and/or Controlled Precursors and Essential Chemicals – the penalty is 1 year and 1 day to 6 years and a fine ranging from P10 Thousand to P50 Thousand. 15. Unnecessary Prescription of Dangerous Drugs - the penalty is 12 years and 1 day to 20 years and a fine ranging from P100 Thousand to P500 Thousand.


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16. Unlawful Prescription of Dangerous Drugs – the penalty is life imprisonment to death and a fine ranging from P500 Thousand to P10 Million. 17. Attempt3 or Conspiracy4 to commit importation of dangerous drug and/or controlled precursor and essential chemicals, sale, trading, administration, distribution and transportation of any dangerous drug and/or controlled precursor and essential chemicals, maintenance of den, dive or resort where any dangerous is used in any form, manufacture of any dangerous drug and/or controlled precursor and essential chemical, and cultivation or culture of plants which are sources of dangerous drugs – the same penalty of the unlawful acts. 18. Criminal Liability of a Public Officer or Employee for Misappropriation, Misapplication or failure to account for the confiscated, seized and/or surrendered dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, instruments/paraphernalia and/or laboratory equipment including the proceeds or properties obtained from the unlawful act committed - the penalty is life imprisonment to death and a fine ranging from P500 Thousand to P10 Million. 19. Planting of Evidence – the penalty is death. 20. Violation of any Regulation Issued by the Dangerous Drugs Board – the penalty is 6 months and 1 day to 4 years and a fine ranging from P10 Thousand to P50 Thousand as well as administrative liability. 21. Issuance of False or Fraudulent Drug Test Results – the penalty is 6 years and 1 day to 12 years and a fine ranging from P100 Thousand to P500 Thousand. 22. Violation of Confidentiality of Records – the penalty is 6 months and 1 day to 6 years and a fine ranging from P1 Thousand – P6 Thousand. 23. Failure or Refusal to Testify in Proceedings Involving Offenses under this law – the penalty is 12 years and 1 day to 20 years and a fine of not less than P500 Thousand. 24. Delay and Bungling in the Prosecution of Drug Cases the penalty is 12 years and 1 day to 20 years, without prejudice to his/her prosecution under pertinent provisions of the Revised Penal Code. Who is the User penalized under this law? 3 There is an attempt when the offender commences the commission of a felony directly by overt acts, and does not perform all the acts of execution which should produce the felony by reason of some cause or accident other than his own spontaneous desistance – Art. 6, Revised Penal Code. 4 A conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it – Art. 8, Revised Penal Code.


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As can be deduced from the definition of use, a User is a person who engages in “any act of injecting, intravenously or intramuscularly, of consuming, either by chewing, smoking, sniffing, eating, swallowing, drinking or otherwise introducing into the physiological system of the body, any of the dangerous drugs.”5 SECTION 15. USE of Dangerous Drugs Any person apprehended or arrested, who is found to be positive for use of any dangerous drug, after a confirmatory test6 and who is a first-time offender, shall be committed to a minimum of six (6) months of rehabilitation in a government center, subject to Article VIII of the law. If apprehended using any dangerous drug for the second time, he/she shall then suffer criminal liability of imprisonment from 6 years and 1 day to 12 years and a fine ranging from P50,000 to P200,000. The person referred to herein is a natural person, because, obviously a juridical person cannot be held liable of this offense. Take note the second paragraph of Section 12, because it is very relevant in the prosecution of Section 15. The provision reads: “The possession of such equipment, instrument, apparatus and other paraphernalia fit or intended for any of the purposes enumerated in the preceding paragraph shall be prima facie evidence that the possessor has smoked, consumed, administered to himself/herself, injected, ingested or used a dangerous drug and shall be presumed to have violated Section 15 of this Act.”

However, where the person tested is also found to have in his/her possession such quantity of any dangerous drug provided for under Section 11 of this law, the provisions therein on POSSESSION of Dangerous Drugs shall apply. It is committed by any person, who, unless authorized by law, shall possess any dangerous drug, regardless of the degree of purity thereof: (1)Opium (10 grams or more)7 (2)Morphine (10 grams or more) (3)Heroin (10 grams or more) (4)Cocaine or cocaine hydrochloride (10 grams or more) 5 Section 3(kk), Ibid. 6 Section 3(f), ibid. “Confirmatory Test” is an analytical test using a device, tool or equipment with a different chemical or physical principle that is more specific which will validate and confirm the result of the screening test. 7 The penalty is life imprisonment to death and a fine ranging from P500 Thousand to P10 Million.


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(5)Methamphetamine hydrochloride or “shabu” (50 grams or more) (6)Marijuana resin or marijuana resin oil(10 grams or more) (7)Marijuana (500 grams or more) (8)Other dangerous drugs such as, but not limited to, methylenedioxymethamphetamine (MDMA) or “ecstasy”, paramethozyamphetamine (PMA), trimethoxyamphetamine (TMA), lysergic acid diethylamine (LSD), gamma hydroxybutyrate (GHB), and those similarly designed or newly introduced drugs and their derivatives, without having any therapeutic value or if the quantity possessed is far beyond therapeutic requirement, as determined and promulgated by the Board. (10 grams or more)

When found to be positive for dangerous drugs use during drug testing by accredited laboratories or centers, the following persons8 shall be subject to the provisions of Section 15 of this law on Use of Dangerous Drugs: (a) Applicants for driver’s license; (b) Applicants for firearm’s license and for permit to carry firearms outside of residence; (c)Students of secondary and tertiary schools, whether public or private, who underwent random drug testing; (d) Officers and employees of public and private offices, whether domestic or overseas, who underwent random drug tests pursuant to the company’s work rules and regulations; (e) Officers and members of the military, police and other law enforcement agencies who underwent annual mandatory drug tests; (f) All persons charged before the prosecutor’s office with a criminal offense having an imposable penalty of imprisonment of not less than six (6) years and one (1) day who underwent mandatory drug test; and (g) All candidates for public office whether appointed or elected both in the national or local government who underwent mandatory drug test. It should be mentioned that in the consolidated cases of Social Justice Society (SJS), Atty. Manuel J. Laserna, Jr. vs. Dangerous Drugs Board and the Philippine Drug Enforcement Agency and Aquilino Q. Pimentel, Jr. vs. Commission on Elections,9 the Supreme Court En Banc declared as unconstitutional Section 36 (f) and (g) or the provisions requiring mandatory drug test to all persons charged before the prosecutor’s office with a criminal offense with an imposable penalty of imprisonment of not less than six (6) years and one (1) day and the required mandatory drug test for all candidates for public office whether appointed or elected both in the national or 8 Section 36, ibid. 9 G.R. Nos. 157870, 158633, 161658, November 3, 2008.


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local government. But in the same case, the Supreme Court declared as constitutional paragraphs c and d of Section 36 of Republic Act No. 9165, which pertain to random drug testing of students of secondary and tertiary schools, whether public or private, and the officers and employees of public and private offices, whether domestic or overseas. This case is significant because persons charged before the prosecutor’s office with a criminal offense with an imposable penalty of imprisonment of not less than six (6) years and one (1) day could no longer be required to undergo a mandatory drug test. What was the reason proffered by the Supreme Court? First, let us know the principal issues of the case, and they are as follows: (1) Do Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 impose an additional qualification for candidates for senator? Corollarily, can Congress enact a law prescribing qualifications for candidates for senator in addition to those laid down by the Constitution? and (2) Are paragraphs (c), (d), (f), and (g) of Sec. 36, RA 9165 unconstitutional? Specifically, do these paragraphs violate the right to privacy, the right against unreasonable searches and seizure, and the equal protection clause? Or do they constitute undue delegation of legislative power? Just to give you an idea with respect to the case of Senator Pimentel, his contention is this, “that Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 illegally impose an additional qualification on candidates for senator. He points out that, subject to the provisions on nuisance candidates, a candidate for senator needs only to meet the qualifications laid down in Sec. 3, Art. VI of the Constitution, to wit: (1) citizenship, (2) voter registration, (3) literacy, (4) age, and (5) residency. Beyond these stated qualification requirements, candidates for senator need not possess any other qualification to run for senator and be voted upon and elected as member of the Senate. The Congress cannot validly amend or otherwise modify these qualification standards, as it cannot disregard, evade, or weaken the force of a constitutional mandate, or alter or enlarge the Constitution.” The Supreme Court sustained the contention of Senator Pimentel and declared Section 36 (g) unconstitutional. On the other hand, in upholding the constitutionality of the provision on random drug testing for students of secondary and tertiary schools, the Supreme Court held: “In sum, what can reasonably be deduced from the above two cases and applied to this jurisdiction are: (1) schools and their administrators stand in loco parentis with respect to their students; (2) minor students have contextually fewer rights than an adult, and are subject to the custody and supervision of their parents, guardians, and schools; (3) schools, acting in loco parentis, have a duty to safeguard the health and well-being of their students and may adopt such measures as


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may reasonably be necessary to discharge such duty; and (4) schools have the right to impose conditions on applicants for admission that are fair, just, and non-discriminatory. Guided by Vernonia and Board of Education, the Court is of the view and so holds that the provisions of RA 9165 requiring mandatory, random, and suspicionless drug testing of students are constitutional. Indeed, it is within the prerogative of educational institutions to require, as a condition for admission, compliance with reasonable school rules and regulations and policies. To be sure, the right to enroll is not absolute; it is subject to fair, reasonable, and equitable requirements.”

In upholding also the constitutionality of the provision on the random drug test for officers and employees of public and private offices, the Supreme Court held: The first factor to consider in the matter of reasonableness is the nature of the privacy interest upon which the drug testing, which effects a search within the meaning of Sec. 2, Art. III of the Constitution, intrudes. In this case, the office or workplace serves as the backdrop for the analysis of the privacy expectation of the employees and the reasonableness of drug testing requirement. The employees’ privacy interest in an office is to a large extent circumscribed by the company’s work policies, the collective bargaining agreement, if any, entered into by management and the bargaining unit, and the inherent right of the employer to maintain discipline and efficiency in the workplace. Their privacy expectation in a regulated office environment is, in fine, reduced; and a degree of impingement upon such privacy has been upheld. xxx “xxx In the case of students, the testing shall be in accordance with the school rules as contained in the student handbook and with notice to parents. On the part of officers/employees, the testing shall take into account the company’s work rules. In either case, the random procedure shall be observed, meaning that the persons to be subjected to drug test shall be picked by chance or in an unplanned way. And in all cases, safeguards against misusing and compromising the confidentiality of the test results are established.” xxx “To reiterate, RA 9165 was enacted as a measure to stamp out illegal drug in the country and thus protect the well-being of the citizens, especially the youth, from the deleterious effects of dangerous drugs. The law intends to achieve this through the medium, among others, of promoting and resolutely pursuing a national drug abuse policy in the workplace via a mandatory random drug test. To the Court, the need for drug testing to at least minimize illegal drug use is substantial enough to override the individual’s privacy interest under the premises. The Court can consider that the illegal drug menace cuts across gender, age group, and social- economic lines. And it may not be amiss to state that the sale, manufacture, or trafficking of illegal drugs, with their ready


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market, would be an investor’s dream were it not for the illegal and immoral components of any of such activities. The drug problem has hardly abated since the martial law public execution of a notorious drug trafficker. The state can no longer assume a laid back stance with respect to this modern-day scourge. Drug enforcement agencies perceive a mandatory random drug test to be an effective way of preventing and deterring drug use among employees in private offices, the threat of detection by random testing being higher than other modes. The Court holds that the chosen method is a reasonable and enough means to lick the problem. Taking into account the foregoing factors, i.e., the reduced expectation of privacy on the part of the employees, the compelling state concern likely to be met by the search, and the well-defined limits set forth in the law to properly guide authorities in the conduct of the random testing, we hold that the challenged drug test requirement is, under the limited context of the case, reasonable and, ergo, constitutional. Like their counterparts in the private sector, government officials and employees also labor under reasonable supervision and restrictions imposed by the Civil Service law and other laws on public officers, all enacted to promote a high standard of ethics in the public service. And if RA 9165 passes the norm of reasonableness for private employees, the more reason that it should pass the test for civil servants, who, by constitutional command, are required to be accountable at all times to the people and to serve them with utmost responsibility and efficiency.

And lastly, in declaring Section 36 (f) as unconstitutional, the Supreme Court held: “Unlike the situation covered by Sec. 36(c) and (d) of RA 9165, the Court finds no valid justification for mandatory drug testing for persons accused of crimes. In the case of students, the constitutional viability of the mandatory, random, and suspicionless drug testing for students emanates primarily from the waiver by the students of their right to privacy when they seek entry to the school, and from their voluntarily submitting their persons to the parental authority of school authorities. In the case of private and public employees, the constitutional soundness of the mandatory, random, and suspicionless drug testing proceeds from the reasonableness of the drug test policy and requirement. We find the situation entirely different in the case of persons charged before the public prosecutor’s office with criminal offenses punishable with six (6) years and one (1) day imprisonment. The operative concepts in the mandatory drug testing are “ randomness” and “suspicionless.” In the case of persons charged with a crime before the prosecutor’s office, a mandatory drug testing can never be random or suspicionless. The ideas of randomness and being suspicionless are antithetical to their being made defendants in a criminal complaint. They are not randomly picked; neither are they beyond suspicion. When persons suspected of committing a crime are charged, they are singled out and are impleaded against their will. The persons thus charged, by the bare fact of being haled before the prosecutor’s office and peaceably submitting themselves to drug testing,


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if that be the case, do not necessarily consent to the procedure, let alone waive their right to privacy. To impose mandatory drug testing on the accused is a blatant attempt to harness a medical test as a tool for criminal prosecution, contrary to the stated objectives of RA 9165. Drug testing in this case would violate a persons’ right to privacy guaranteed under Sec. 2, Art. III of the Constitution. Worse still, the accused persons are veritably forced to incriminate themselves.

With such pronouncement of the Supreme Court, does it mean that persons who are apprehended or arrested for violation of Republic Act No. 9165 could no longer be subjected to drug test? The answer is no. This has been clarified in the case of Jaime Dela Cruz vs. People10 wherein the Supreme Court speaking thru Chief Justice Sereno held: First, "[a] person apprehended or arrested" cannot literally mean any person apprehended or arrested for any crime. The phrase must be read in context and understood in consonance with R.A. 9165. Section 15 comprehends persons arrested or apprehended for unlawful acts listed under Article II of the law. Hence, a drug test can be made upon persons who are apprehended or arrested for, among others, the "importation," "sale, trading, administration, dispensation, delivery, distribution and transportation", "manufacture" and "possession" of dangerous drugs and/or controlled precursors and essential chemicals; possession thereof "during parties, social gatherings or meetings"; being "employees and visitors of a den, dive or resort"; "maintenance of a den, dive or resort"; "illegal chemical diversion of controlled precursors and essential chemicals" ; "manufacture or delivery" or "possession" of equipment, instrument, apparatus, and other paraphernalia for dangerous drugs and/or controlled precursors and essential chemicals; possession of dangerous drugs "during parties, social gatherings or meetings" ; "unnecessary" or "unlawful" prescription thereof; "cultivation or culture of plants classified as dangerous drugs or are sources thereof"; and "maintenance and keeping of original records of transactions on dangerous drugs and/or controlled precursors and essential chemicals." To make the provision applicable to all persons arrested or apprehended for any crime not listed under Article II is tantamount to unduly expanding its meaning. Note that accused appellant here was arrested in the alleged act of extortion.

Who is a Pusher? A Pusher is any person who sells, trades, administers, dispenses, delivers or gives away to another, on any terms whatsoever, or distributes, dispatches in transit or transports dangerous drugs or who acts as a broker in any such transactions, in violation of this Act.11 The unlawful act applicable to pusher is Section 5. SECTION 5. SALE, TRADING, ADMINISTRATION, DISPENSATION, DELIVERY, DISTRIBUTION and TRANSPORTATION of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals. 10 G.R. No. 200748, July 23, 2014. 11 Section 3(ff), Ibid.


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This act is committed by any person, who, unless authorized by law, shall sell12, trade, administer13, dispense14, deliver15, give away to another, distribute, dispatch in transit or transport any dangerous drug, including any and all species of opium poppy regardless of the quantity and purity involved, or shall act as a broker in any of such transactions. It may also be violated by any person who, unless authorized by law, shall so sell, trade, administer, dispense, deliver, give away to another, distribute , dispatch in transit or transport any controlled precursor and essential chemical, or shall act as a broker in such transactions. Any person who acts as a “protector/coddler” of any violator of Section 5 shall also be punished. What Circumstances Qualify the Imposable Penalty to its Maximum? I.

If the sale, trading16, administration, dispensation, deliver, distribution or transportation of any dangerous drug and/or controlled precursor and essential chemical transpires within one hundred (100) meters from the school17.

12 Section 3 (ii), ibid. “Sell” refers to any act of giving away any dangerous drug and/or controlled precursor and essential chemical whether for money or any other consideration. 13 Section 3 (a), ibid. “Administer” refers to any act of introducing any dangerous drug into the body of any person, with or without his/her knowledge, by injection, inhalation, ingestion or other means, or of committing any act of indispensable assistance to a person in administering a dangerous drug to himself/herself unless administered by a duly licensed practitioner for purposes of medication. 14 Section 3 (m), ibid. “Dispense” refers to any act of giving away, selling or distributing medicine or any dangerous drug with or without the use of prescription. 15 Section 3 (k) ibid. “Deliver” refers to any act of knowingly passing a dangerous drug to another, personally or otherwise, and by any means, with or without consideration. 16 Section 3 (jj), ibid. “Trading” refers to transactions involving the illegal trafficking of dangerous drugs and/or controlled precursors and essential chemicals using electronic devices such as, but not limited to, text messages, email, mobile or landlines, two-way radios, internet, instant messages, and chat rooms or acting as a broker in any of such transactions whether for money or any other consideration in violation of RA 9165. 17 Section 3 (gg), ibid. “School” refers to any educational institution, private or public, undertaking educational operation for pupils/students pursuing certain


II.

III. IV. V.

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If the offender is a drug pusher who uses minors or mentally incapacitated individuals as runners, couriers and messengers, or in any other capacity directly connected to the dangerous drugs and/or controlled precursors and essential chemicals trade. If the victim of the offense is a minor or a mentally incapacitated individual. If a dangerous drug and/or controlled precursor and essential chemical involved in any offense under this Act is the proximate cause of death of a victim thereof. If the offender organizes, manages or acts as a “financier” of any of the illegal activities prescribed in Section 5 of the law.

In every prosecution for illegal sale of shabu under Section 5, Art. II of Republic Act No. 9165 or the “Comprehensive Dangerous Drugs Act of 2002,” the following elements must be sufficiently proved: (1) the identity of the buyer and the seller, the object and the consideration; and (2) the delivery of the thing sold and the payment therefor.18 Usually, Section 5 is enforced thru a buy-bust operation. In People vs. Tecson Lim, et al.,19 the Supreme Court explained the concept of a buy-bust operation, to wit: “Primarily, a buy-bust operation is a form of entrapment whereby ways and means are resorted to for the purpose of trapping and capturing lawbreakers in the execution of their criminal plan. Unless there is clear and convincing evidence that the members of the buy-bust team were inspired by any improper motive or were not properly performing their duty, their testimonies on the operation deserve full faith and credit. When the police officers involved in the buy-bust operation have no motive to falsely testify against the accused, the courts shall uphold the presumption that they have performed their duties regularly. The courts, nonetheless, are advised to take caution in applying the presumption of regularity. It should not by itself prevail over the presumption of innocence and the constitutionally protected rights of the individual. Thus, this Court discussed in People v. Doria the "objective" test in buy-bust operations to determine the credibility of the testimonies of the police officers involved in the operation: We therefore stress that the "objective" test in buy-bust operations demands that the details of the purported transaction must be clearly and adequately shown. This must start from the initial contact between the poseur-buyer and the pusher, the offer to purchase, the promise or payment of the consideration until the consummation of the sale by the delivery studies at defined levels, receiving instruction from teachers , usually located in a building or a group of buildings in a particular physical or cyber site. 18 People vs. Bertha Presas y Tolentino, G.R. No. 182525, March 2, 2011. 19 G.R. No. 187503, September 11, 2009.


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of the illegal drug subject of the sale. The manner by which the initial contact was made, whether or not through an informant, the offer to purchase the drug, the payment of the "buy-bust" money, and the delivery of the illegal drug, whether to the informant alone or the police officer, must be the subject of strict scrutiny by courts to insure that law-abiding citizens are not unlawfully induced to commit an offense. Criminals must be caught but not at all cost. At the same time, however, examining the conduct of the police should not disable courts into ignoring the accused's predisposition to commit the crime. If there is overwhelming evidence of habitual delinquency, recidivism or plain criminal proclivity, then this must also be considered. Courts should look at all factors to determine the predisposition of an accused to commit an offense in so far as they are relevant to determine the validity of the defense of inducement.”

Corollary to this, it is important to know the distinction between instigation and entrapment. In the case of People vs. Victorio Pagkalinawan20, the distinction of the two was explained in this wise: “Instigation is the means by which the accused is lured into the commission of the offense charged in order to prosecute him. On the other hand, entrapment is the employment of such ways and means for the purpose of trapping or capturing a lawbreaker. In People v. Lua Chu and Uy Se Tieng, the Court laid down the distinction between entrapment and instigation, to wit: ENTRAPMENT AND INSTIGATION.--While it has been said that the practice of entrapping persons into crime for the purpose of instituting criminal prosecutions is to be deplored, and while instigation, as distinguished from mere entrapment, has often been condemned and has sometimes been held to prevent the act from being criminal or punishable, the general rule is that it is no defense to the perpetrator of a crime that facilities for its commission were purposely placed in his way, or that the criminal act was done at the `decoy solicitation' of persons seeking to expose the criminal, or that detectives feigning complicity in the act were present and apparently assisting in its commission. This is true especially in that class of cases where the offense is one of a kind habitually committed, and the solicitation merely furnishes evidence of a course of conduct. Mere deception by the detective will not shield defendant, if the offense was committed by him, free from the influence or instigation of the detective. The fact that an agent of an owner acts as a supposed confederate of a thief is no defense to the latter in a prosecution for larceny, provided the original design was formed independently of such agent; and where a person approached by the thief as his confederate notifies the owner or the public authorities, and, being authorized by them to do so, assists the thief in carrying out the plan, the larceny is nevertheless committed. It is generally held that it is no defense to a prosecution for an illegal sale of 20 G.R. No. 184805, March 3, 2010.


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liquor that the purchase was made by a `spotter,' detective, or hired informer; but there are cases holding the contrary. One form of entrapment is the buy-bust operation. It is legal and has been proved to be an effective method of apprehending drug peddlers, provided due regard to constitutional and legal safeguards is undertaken.”

Who is the Manufacturer contemplated in this law? As can be deduced from the definition of manufacture,21 a Manufacturer is any person who is engaged in the production, preparation, compounding or processing of any dangerous drug and/or controlled precursor and essential chemical, either directly or indirectly or by extraction from substances of natural origin or independently by means of chemical synthesis or by a combination of extraction and chemical synthesis, and shall include any packaging or repackaging of such substances, design or configuration of its form, or labelling or relabeling of its container; except that such terms do not include the preparation, compounding, packaging or labelling of a drug or substance in the course of his/her professional practice including research, teaching and chemical analysis of dangerous drugs or such substances that are not intended for sale or for any other purpose. The unlawful act applicable to manufacturer is SECTION 8 – MANUFACTURE of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals This is committed by any person, who, unless authorized by law, shall engage in the manufacture of any dangerous drug and/or any controlled precursor and essential chemical. Any person who acts as a “protector/coddler” of any violator of Section 8 shall also be punished. The presence of any controlled precursor and essential chemical or laboratory equipment 22 in the clandestine laboratory23 is a prima facie proof of manufacture of any dangerous drug. It shall be considered an aggravating circumstance. 21 Section 3(u), ibid. “Manufacture” refers to the production, preparation, compounding or processing of any dangerous drug and/or controlled precursor and essential chemical, either directly or indirectly or by extraction from substances of natural origin or independently by means of chemical synthesis or by a combination of extraction and chemical synthesis, and shall include any packaging or repackaging of such substances, design or configuration of its form, or labelling or relabeling of its container; except that such terms do not include the preparation, compounding, packaging or labelling of a drug or substance in the course of his/her professional practice including research, teaching and chemical analysis of dangerous drugs or such substances that are not intended for sale or for any other purpose.


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What Circumstances Qualify the Imposable Penalty to its Maximum? I.

If the clandestine laboratory is undertaken or established under the following circumstances: (a) Any phase of the manufacturing process was conducted in the presence or with the help of minor/s. (b) Any phase or manufacturing process was established or undertaken within one hundred (100) meters of a residential, business, church or school premises. (c)Any clandestine laboratory was secured or protected with booby traps. (d) Any clandestine laboratory was concealed with legitimate business operations. (e) Any employment of a practitioner 24, chemical engineer, public official or foreigner.

II.

If the offender organizes, manages or acts as a “financier” 25 of any of the illegal activities prescribed in Section 8 of the law.

Who is a Protector/Coddler? A Protector/Coddler refers to any person who knowingly and wilfully consents to the unlawful acts provided for in RA 9165 and uses his/her influence, power or position in shielding, harbouring, screening or facilitating the escape of any person he/she knows, or has reasonable grounds to believe on or suspects, has violated the provisions of said Act in order to prevent arrest, prosecution, and conviction of the violator.26 22 Section 3(t), ibid. “Laboratory Equipment” refers to the paraphernalia, apparatus, materials or appliances when used, intended for use or designed for use in the manufacture of any dangerous drug and/or controlled precursor and essential chemical, such as reaction vessel, preparative/purifying equipment, fermenters, separatory funnel, flask, heating mantle, gas generator, or their substitute. 23 Section 3(e), ibid. “Clandestine Laboratory” refers to any facility used for the illegal manufacture of any dangerous drug and/or controlled precursor and essential chemical. 24 Section 3(dd), ibid. “Practitioner” refers to any person who is a licensed physician, dentist, chemist, medical technologist, nurse, midwife, veterinarian or pharmacist in the Philippines. 25 Section 3 (q), ibid. “Financier” refers to any person who pays for, raises or supplies money for, or underwrites any of the illegal activities under this Act. 26 Section (ee), Ibid.


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What unlawful acts of a protector/coddler are penalized under RA 9165? 1. Importation of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals (Sec. 4); 2. Sale, Trading, Administration, Dispensation, Delivery, Distribution and Transportation of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals (Sec. 5); 3. Maintenance of a Den, Drive or Resort (Sec. 6); 4. Manufacture of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals (Sec. 8); and 5. Cultivation or Culture of Plants Classified as Dangerous Drugs or are Sources Thereof (Sec. 16). The penalty to be imposed to any person who acts as a “protector/coddler” under any of the Sections of RA 9165 mentioned above is imprisonment of 12 years and 1 day to 20 years and a fine ranging from P100 Thousand to P500 Thousand. If a “protector/coddler” is a government official or employee, the maximum penalties of the unlawful acts mentioned above shall be imposed, in addition to absolute perpetual disqualification from any public office. This can be deduced from Section 28 (Criminal liability of Government Officials and Employees) of RA 9165. What is Planting of Evidence? “Planting of Evidence” refers to the wilful act by any person or maliciously and surreptitiously inserting, placing, adding or attaching directly or indirectly, through any overt or covert act, whatever quantity or any dangerous drug and/or controlled precursor and essential chemical in the person, house, effects or in the immediate vicinity of an innocent individual for the purpose of implicating, incriminating or imputing the commission of any violation of RA 9165. [Section3(cc)] Under SECTION 29 of RA 9165 (PLANTING of EVIDENCE), any person found guilty of “planting” any dangerous drug and/or controlled precursor and essential chemical, regardless of quantity and purity thereof, shall be liable under this law, and the penalty is DEATH. At this juncture, let us now discuss Section 21 of RA 9165, a provision which provides for the proper handling and preservation of confiscated, seized and/or surrendered dangerous drugs. In the case of People vs. Salvador Sanchez y Espiritu, 27 the Supreme Court, speaking through Justice Arturo D. Brion, said that complying with the standard safeguards set forth under Section 21 and/or the “Chain of Custody Rule”, - which requires that the “marking” of the seized items – to truly ensure that they are the same items that enter 27 G.R. No. 175832, October 15, 2008.


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the chain and are eventually the ones offered in evidence – should be done (1) in the presence of the apprehended violator (2) immediately upon confiscation, is a step which initiates the process of protecting innocent persons from dubious and concocted searches, and of protecting as well the apprehending officers from harassment suits based on planting of evidence under Section 29 and on allegations of robbery or theft. The required procedure on the seizure and custody of drugs is embodied in Section 21, paragraph 1, Article II of R.A. No. 9165, which states: 1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof. [Emphasis ours]

This is implemented by Section 21(a), Article II of the Implementing Rules and Regulations of R.A. No. 9165, which reads: (a) The apprehending officer/team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof: x x x Provided, further that noncompliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items. [Emphasis supplied]

What is the effect of failure to comply with the requirements of Section 21 of RA 9165? In the said case of People vs. Sanchez, the Supreme Court answered the question in this manner: “We recognize that the strict compliance with the requirements of Section 21 of R.A. No. 9165 may not always be possible under field conditions; the police operates under varied conditions, many of them far from ideal, and cannot at all times attend to all the niceties of the procedures in the handling of confiscated evidence. The participation of a representative from the DOJ, the media or an elected official alone can be problematic. For this reason, the last sentence of the implementing rules provides that “non-compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and


P a g e 17

custody over said items.” Thus, non-compliance with the strict directive of Section 21 of R.A. No. 9165 is not necessarily fatal to the prosecution’s case; police procedures in the handling of confiscated evidence may still have some lapses, as in the present case. These lapses, however, must be recognized and explained in terms of their justifiable grounds and the integrity and evidentiary value of the evidence seized must be shown to have been preserved.” In the same case of People vs. Sanchez, the Supreme Court extensively discussed the “Chain of Custody Rule” and its application, to wit:

“Under Section 5, Article II of R.A.. No. 9165, the elements

necessary in every prosecution for the illegal sale of shabu are: (1) the identity of the buyer and the seller, the object and the consideration; and (2) the delivery of the thing sold and the payment therefor. Implicit in all these is the need for proof that the transaction or sale actually took place, coupled with the presentation in court of evidence of corpus delicti - the body of the crime whose core is the confiscated illicit drug. Proof beyond reasonable doubt demands that unwavering exactitude be observed in establishing the corpus delicti: every fact necessary to constitute the crime must be established. The chain of custody requirement performs this function in buy-bust operations as it ensures that doubts concerning the identity of the evidence are removed. In a long line of cases, we have considered it fatal for the prosecution to fail to prove that the specimen submitted for laboratory examination was the same one allegedly seized from the accused. Black’s Law Dictionary explains chain of custody in this wise: In evidence, the one who offers real evidence, such as narcotics in a trial of drug case, must account for the custody of the evidence from the moment in which it reaches his custody until the moment in which it is offered in evidence, and such evidence goes to the weight not to admissibility of evidence. Com. V. White, 353 Mass. 409, 232 N.E.2d 335.

Likewise, Section 1(b) of Dangerous Drugs Board Regulation No. 1, Series of 2002 which implements R.A. No. 9165 defines “chain of custody” as follows: “Chain of Custody” means the duly recorded authorized movements and custody of seized drugs or controlled chemicals or plant sources of dangerous drugs or laboratory equipment of each stage, from the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping to presentation in court for destruction. Such record of movements and custody of seized item shall include the identity and signature of the person who held temporary custody of the seized item, the date and time when such transfer of custody were made in the course of safekeeping and use in court as evidence,


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and the final disposition.

Although this regulation took effect on October 18, 2002 (or after the commission of the crime charged), it is nonetheless useful in illustrating how the process of preserving the integrity of the chain of custody of the seized drugs is ensured and maintained. That the police failed to approximate these safeguards and the prosecution failed to prove the identity of the specimen allegedly seized and the specimen submitted as evidence during the trial is evident from SPO2 Sevilla himself who testified as follows: FISCAL GIBSON ARAULA: Q:

After informing [the accused] of his constitutional right what happened Mr. Witness?

SPO2 LEVI SEVILLA

did

A:

We brought him to our station.

Q:

How about the transparent plastic sachet, where is it?

A:

It is in my possession.

Q:

How about the buy-bust money in the amount of P100.00?

A:

I recovered it from the right pants pocket.

Q:

Now you said that you brought the accused to the Police Station, what happened to the Police Station?

A:

We turn him over to the Desk Officer.

Q:

What did you turn over?

A:

The accused and the evidences, the plastic shabu sir.

Q:

Before you turn over that plastic sachet Mr. Witness, what you put there?

A:

I put my initial and initial of the accused.

xxxx Q:

By the way Mr. Witness after you turned over to the investigator the plastic sachet, did you happen to know where the brought the plastic sachet?

A:

I gave that plastic sachet first to the table of the Desk

investigator Officer

and the Desk Officer gave it to the investigator. FISCAL GIBSON ARAULA: That would be all for the witness.

Significantly, this was the only testimony in the case that touched on the chain of custody of the seized evidence. It failed to disclose the identities of the desk officer and the investigator to whom the custody of the drugs was given, and how the latter handled these materials. No reference was ever made to the person who submitted the seized specimen to the PNP Crime Laboratory for examination. Likewise, no one testified on how the specimen was handled after the chemical analysis by the forensic chemist. While we are aware that the RTC's Order of August 6, 2003 dispensed with the testimony of the forensic chemist because of the stipulations of the parties, we view the stipulation to be confined to the handling of the specimen at the forensic


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laboratory and to the analytical results obtained. The stipulation does not cover the manner the specimen was handled before it came to the possession of the forensic chemist and after it left his possession. To be sure, personnel within the police hierarchy (as SPO2 Sevilla’s testimony casually mentions) must have handled the drugs but evidence of how this was done, i.e., how it was managed, stored, preserved, labeled and recorded from the time of its seizure, to its receipt by the forensic laboratory, up until it was presented in court and subsequently destroyed – is absent from the evidence adduced during the trial. To repeat an earlier observation, even the time and place of the initial marking of the alleged evidence are not at all certain as the testimony on this point varies. The recent case of Lopez v. People28 is particularly instructive on how we expect the chain of custody or “movement” of the seized evidence to be maintained and why this must be shown by evidence: As a method of authenticating evidence, the chain of custody rule requires that the admission of an exhibit be preceded by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be. It would include testimony about every link in the chain, from the moment the item was picked up to the time it is offered into evidence, in such a way that every person who touched the exhibit would describe how and from whom it was received, where it was and what happened to it while in the witness' possession, the condition in which it was received and the condition in which it was delivered to the next link in the chain. These witnesses would then describe the precautions taken to ensure that there had been no change in the condition of the item and no opportunity for someone not in the chain to have possession of the same. While testimony about a perfect chain is not always the standard because it is almost always impossible to obtain, an unbroken chain of custody becomes indispensable and essential when the item of real evidence is not distinctive and is not really identifiable, or when its condition at the time of testing or trial is critical, or when a witness has failed to observe its uniqueness. The same standard likewise obtains in case the evidence is susceptible to alteration, tampering, contamination and even substitution and exchange. In other words, the exhibit's level of susceptibility to fungibility, alteration or tampering – without regard to whether the same is advertent or otherwise not – dictates the level of strictness in the application of the chain of custody rule. [Emphasis ours]

Where is the venue of physical inventory and photograph requirement under Section 21 vis-a-vis the “marking” of seized evidence? People vs. Sanchez provided the answer, to quote: “While the first sentence of Section 21(a) of the Implementing Rules and Regulations of R.A. No. 9165 states 28 G.R. No. 172953, April 30, 2008 (citations omitted).


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that “the apprehending officer/team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same,” the second sentence makes a distinction between warrantless seizures and seizures by virtue of a warrant, thus: (a) x x x Provided, that the physical inventory and photograph shall be conducted at the place where the search warrant is served; or at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable, in case of warrantless seizures; Provided, further that non-compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items. [Emphasis supplied]

Thus, the venues of the physical inventory and photography of the seized items differ and depend on whether the seizure was made by virtue of a search warrant or through a warrantless seizure such as a buy-bust operation. In seizures covered by search warrants, the physical inventory and photograph must be conducted in the place where the search warrant was served. On the other hand, in case of warrantless seizures such as a buy- bust operation, the physical inventory and photograph shall be conducted at the nearest police station or office of the apprehending officer/team, whichever is practicable; however, nothing prevents the apprehending officer/team from immediately conducting the physical inventory and photography of the items at the place where they were seized, as it is more in keeping with the law’s intent of preserving their integrity and evidentiary value. What Section 21 of R.A. No.9165 and its implementing rules do not expressly specify is the matter of “marking” of the seized items in warrantless seizures to ensure that the evidence seized upon apprehension is the same evidence subjected to inventory and photography when these activities are undertaken at the police station rather than at the place of arrest. Consistency with the "chain of custody" rule requires that the “marking” of the seized items – to truly ensure that they are the same items that enter the chain and are eventually the ones offered in evidence – should be done (1) in the presence of the apprehended violator (2) immediately upon confiscation.”

What are the implications of failure to comply with Sec. 21, paragraph 1? People vs. Sanchez held: “In People v. Orteza, the Court had the occasion to discuss the implications of the failure to comply with Section 21, paragraph 1, to wit:


P a g e 21

… In People v. Laxa, where the buy-bust team failed to mark the confiscated marijuana immediately after the apprehension of the accused, the Court held that the deviation from the standard procedure in anti-narcotics operations produced doubts as to the origins of the marijuana. Consequently, the Court concluded that the prosecution failed to establish the identity of the corpus delicti. The Court made a similar ruling in People v. Kimura, where the Narcom operatives failed to place markings on the seized marijuana at the time the accused was arrested and to observe the procedure and take custody of the drug. More recently, in Zarraga v. People, the Court held that the material inconsistencies with regard to when and where the markings on the shabu were made and the lack of inventory on the seized drugs created reasonable doubt as to the identity of the corpus delicti. The Court thus acquitted the accused due to the prosecution's failure to indubitably show the identity of the shabu. [Emphasis supplied]”

Another important provisions of RA 9165 that you should be reminded are: 1) SECTION 27. Public Officer or Employee Liable for MISAPPROPRIATION, MISAPPLICATION or FAILURE to ACCOUNT for the Confiscated, Seized and/or Surrendered Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment Including the Proceeds or Properties Obtained from the Unlawful Act Committed Any public officer or employee who misappropriates, misapplies or fails to account for confiscated, seized or surrendered dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, instruments/paraphernalia and/or laboratory equipment including the proceeds or properties obtained from the unlawful acts shall be liable under this law and shall suffer absolute perpetual disqualification from any public office. The penalty is life imprisonment to death and fine ranging from P500 Thousand to P10 Million. If said offender is an elective local or national official found to have benefited from the proceeds of the trafficking of dangerous drugs, or have received any financial or material contributions or donations from natural or juridical persons found guilty of trafficking dangerous drugs, he shall be removed from office and perpetually disqualified from holding any elective or appointive positions in the government, its divisions, subdivisions, and intermediaries, including government-owned or controlled corporations.


P a g e 22

2) SECTION 91. FAILURE or REFUSAL to TESTIFY in PROCEEDINGS INVOLVING OFFENSES UNDER THIS LAW This is committed by any member of law enforcement agencies or any other government official and employee who, after due notice, fails or refuses intentionally or negligently, to appear as a witness for the prosecution in any proceedings, involving violations of this law, without any valid reason. His criminal liability hereunder is without prejudice to the administrative liability that may be imposed on him by his immediate superior and/or the appropriate body. The penalty is imprisonment of 12 years and 1 day to 20 years and a fine of not less than P500,000.00. The offender’s immediate superior or responsible government officer shall likewise be liable under this law and may suffer perpetual absolute disqualification from public office in the event that: (a) Despite due notice to him and to the witness concerned, he (the immediate superior or government officer) does not exert reasonable effort to present such witness to the court. (b) He (the immediate superior or government officer) does not notify the court where the case is pending of the order to transfer or re-assign the aforementioned member of the law enforcement agency or government employee within twenty-four (24) hours from its approval. The penalty is imprisonment of not less than 2 years but not more than 6 years, fine with accessory penalty of perpetual absolute disqualification to hold public office. 3) SECTION 92. DELAY and PROSECUTION of Drug Cases

BUNGLING

in

the

Any government officer or employee tasked with the prosecution of drug-related cases under this law, who, through patent laxity, inexcusable neglect, unreasonable delay or deliberately causes the unsuccessful prosecution and/or dismissal of the said drug cases, shall be liable hereunder. The penalty is imprisonment ranging from 12 years and 1 day to 20 years without prejudice to his/her prosecution under the pertinent provisions of the Revised Penal Code.

Criminal Forfeiture of the Proceeds and Instruments of the Unlawful Act How are confiscated, seized and forfeited dangerous drugs disposed of?


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SECTION 20. CONFISCATION and FORFEITURE of the PROCEEDS or INSTRUMENTS of the Unlawful Act, Including the PROPERTIES or PROCEEDS Derived from the Illegal Trafficking29 of Dangerous Drugs and/or Precursors and Essential Chemicals Every penalty imposed for the unlawful importation, sale, trading, administration, dispensation, delivery, distribution, transportation or manufacture of any dangerous drug and/or controlled precursor and essential chemical, the cultivation or culture of plants which are sources of dangerous drugs, and the possession of any equipment, instrument, apparatus and other paraphernalia for dangerous drug including other laboratory equipment, shall carry with it the confiscation and forfeiture, in favor of the government, of all the proceeds and properties derived from the unlawful act, including, but not limited to money and other assets obtained thereby, and the instruments or tools with which the particular unlawful act was committed, unless they are the property of a third person not liable for the unlawful act, but those which are not of lawful commerce shall be ordered destroyed without delay. The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition. (Section 21) The Land and/or greenhouses on which plant sources of dangerous drugs are cultivated or cultured shall be confiscated and escheated in favour of the State, unless the owner thereof can prove lack of knowledge of such cultivation or culture despite the exercise of due diligence on his/her part. (Section 16) Moreover, if the den, dive or resort where any prohibited drug is used or sold in any form, is owned by a third person, the same shall be confiscated and escheated in favor of the government. However, the criminal complaint must name the owner of the place as an accused and must specifically allege that said place is intentionally used in the furtherance of the crime. The prosecution must also prove intent on the part of the owner to use the property for such purpose. (Section 6)

29 Section 3(r), ibid. “Illegal Trafficking” refers to the illegal cultivation, culture, delivery, administration, dispensation, manufacture, sale, trading, transportation, distribution, importation, exportation and possession of any dangerous drug and/or controlled precursor and essential chemical.

My Lecture Notes on RA 9165

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