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Updated Special Penal Laws: By: Judge Oscar B. Pimentel Regional Trial Court, Branch 148, Makati City
Updated Special Penal Laws: By: Judge Oscar B. Pimentel Regional Trial Court, Branch 148, Makati City
APPLICATION OF INDETERMINATE
SENTENCE LAW EXPLAINED
2
six (6) months and one (1) day to four (4) years and two (2)
months . . ."
(People v. Saley; GR 121179, July 2, ’98)
3
their technical terms, hence with their technical
signification and effects. In fact, for purposes of
determining the maximum of said sentence, we have
applied the provisions of the amended Section 20 of said
law to arrive at prision correccional and Article 64 of the
Code to impose the same in the medium period. Such
offense, although provided for in a special law, is now in
the effect punished by and under the Revised Penal Code.
(People v Martin Simon)
4
NATURE OF PENALTY
OF RECLUSION PERPETUA
5
WHICH IS MORE BURDENSOME LIFE IMPRISONMENT OF
RECLUSION PERPETUA
6
ACCUSED WHO IS SENTENCED TO RECLUSION PERPETUA IS
STILL ENTITLED TO EITHER FULL OR ¾ OF HIS PREVENTIVE
IMPRISONMENT
If, during the trial, the accused was detained but, after
trial, he was meted the penalty of reclusion perpetua, he is
still entitled to the full credit of his preventive imprisonment
because Article 29 of the Revised Penal Code does not
distinguish between divisible and indivisible penalties.
(People -vs- Rolando Corpuz,
231 SCRA 480)
QUALIFIED THEFT
7
Under Article 309 of the Revised Penal Code, the maximum of
the penalty for qualified theft is prision mayor to reclusion
temporal. However, under Article 310 of the Revised Penal
Code, the penalty for the crime shall be two (2) degrees
higher than the specified in Article 309 of the Code. Under
Article 74 of the Revised Penal Code, the penalty higher by
one degree than another given penalty, and if such higher
penalty is death, the penalty shall be reclusion perpetua of
forty (40) years with the accessory penalties of death under
Article 40 of the Revised Penal Code. The accused shall not be
entitled to pardon before the lapse of forty (40) years.
(People -vs- Fernando Canales, 297 SCRA 667)
PURPOSES OF PROBATION:
8
Likewise, the filing of a petition for probation shall be
deemed a waiver of the right to appeal and in case an appeal
is made immediately after conviction, a filing of petition for
probation still within the period to appeal, that is within
fifteen days from date of promulgation shall be deemed a
withdrawal of the appeal.
9
It will also include the psychological and social information
regarding the probationer; evaluation of the petitioner;
suitability for probation; his potential for rehabilitation; and
may include the program for supervision and suggested terms
of conditions of probation and a recommendation either to
deny or grant the probation.
10
RULES ON OUTSIDE TRAVEL
OF PROBATIONER
CONFIDENTIALITY OF RECORDS
OF PROBATION
11
Sec. 29, PD 968: VIOLATION OF CONFIDENTIAL NATURE
OF PROBATION RECORDS. The penalty of imprisonment
ranging from six months and one day to six years and a
fine ranging from hundred to six thousand pesos shall be
imposed upon any person who violates Section 17 hereof.
MODIFICATION OF CONDITION
OR PERIOD OF PROBATION
PERIOD OF PROBATION
12
AMENDMENT TO SECTION 4 OF PD 968:
JURISPRUDENCE
13
PROBATION IS NOT A RIGHT
BUT A PRIVILEGE
14
ORDER DENYING PROBATION NOT APPEALABLE,
REMEDY CERTIORARI
15
relation to Art. 25 of The Revised Penal Code, and not
necessarily those who have been convicted of multiple
offenses in a single proceeding who are deemed to be less
perverse. Hence, the basis of the disqualification is principally
the gravity of the offense committed and the concomitant
degree of penalty imposed. Those sentenced to a maximum
term not exceeding six (6) years are not generally considered
callous, hard core criminals, and thus may avail of probation
VIOLATION OF RA 6425,
A VALID CAUSE FOR DISMISSAL
IN SERVICE IN THE GOVERNMENT
DESPITE PROBATION
16
that unlike pardon probation does not obliterate the crime of
which the person under probation has been convicted. The
reform and rehabilitation of the probationer cannot justify his
retention in the government service. He may seek to reenter
government service, but only after he has shown that he is fit
to serve once again. It cannot be repeated too often that a
public office is a public trust, which demands of those in its
service the highest degree of morality. (OCA v. Librado 260
SCRA 624, 8/22/96)
17
Court of final discharge, terminating the probation. If the
accused violates the condition of the probation before the
issuance of said order, the probation may be revoked by the
Court (Manuel Bala v. Martinez, 181 SCRA 459).
Santos v. Cruz-Pano, 1/17/83
18
defamed the four (4) private complainants on four (4)
different, separate days, he was still eligible for probation, as
each prison term imposed on petitioner was probationable.
(Francisco vs. CA 4/15/1995)
ANTI-FENCING LAW
OF 1979 (PD NO. 1612)
DEFINITION
19
"Fencing" is the act of any person who, with intent to
gain for himself or for another, shall buy receive, possess,
keep, acquire, conceal, sell or dispose of, or shall buy and
sell, or in any other manner deal in any article, item, object
or anything of value which he knows, or should be known to
him, to have been derived from the proceeds of the crime of
robbery or theft. A "Fence" includes any person, firm,
association corporation or partnership or other organization
who/ which commits the act of fencing.
20
the property involved is more than 200 pesos
but not exceeding 6,000 pesos;
21
in the buying and selling used secondhand
articles, as defined in paragraph hereof;
22
2. Those who wish to secure the permit/clearance,
shall file an application with the Station Commander
concerned, which states:
23
articles enumerated in the notice, the Station Commander
shall issue the clearance or permit sought.
PRESUMPTION OF FENCING
ELEMENTS
24
disposes, or buys and sells, or in any manner deals in any
article, item, object or anything of value, which has been
derived from the proceeds of the said crime;
3. The accused knows or should have known that the said
article, item, or object or anything of value has been
derived from the proceeds of the crime of robbery or theft;
and
25
stolen goods. The approximate total value of the jewelry were
held to be at P20,000.00, and Norma having bought it from
Crisilita for only P2,700. The court also considered the fact
that Norma engage in the business of buying and selling gold
and silver, which business is very well exposed to the practice
of fencing. This requires more than ordinary case and caution
in dealing with customers. As noted by the trial court:
On the same vein, the third element did not exist in the
case of D.M. Consunji, Inc. (Consunji v. Esguerra, 07/30/96)
where the subject of the court action are the alleged stolen
phelonic plywood owned by D.M. Consunji, Inc., later found to
be in the premises of MC Industrial Sales and Seato trading
Company, owned respectively by Eduardo Ching and the
spouses Sy. Respondents presented sales receipts covering
their purchase of the items from Paramount Industrial, which
is a known hardware store in Caloocan, thus they had no
reason to suspect that the said items were products of theft.
26
The last element is that there is intent to gain for
himself or for another. However, intent to gain need not be
proven in crimes punishable by a special law such as the Anti-
Fencing Law. The crimes punishable by special laws are called
"acts mala prohibita". The rule on the subject is that in acts
mala prohibita, the only inquiry is that, has the law been
violated? (in Gatdner v. People, as cited in US v. Go Chico, 14
Phils. 134) When the act is prohibited by law, intent is
immaterial.
DISTINCTION BETWEEN
FENCING AND ROBBERY
27
The law on fencing does not require the accused to
have participation in the criminal design to commit or to have
been in any wise involved in the commission of the crime of
robbery or theft. Neither is the crime of robbery or theft
made to depend on an act of fencing in order that it can be
consummated. (People v De Guzman, GR 77368).
28
Disqualifications - (a) Those sentenced by final judgement for
an offense involving moral turpitude..."
On the same vein, the third element did not exist in the
case of D.M. Consunji, inc. (Consunji v. Esguerra, 07/30/96)
where the subject of the court action are the alleged stolen
phelonic plywood owned by D.M. Consuji, Inc., later found to
be in premise of MC Industrial Sales and Seato Trading
Company, owned respectively by Eduardo Ching and the
spouses Sy. Respondents presented sales receipts covering
their purchase of the items from Paramount Industrial, which
is a known hardware store in Caloocan, thus they had no
reason to suspect that the said items were products of theft.
29
Likewise, dolo or deceit is immaterial in crimes
punishable by special statute like the Anti-Fencing Law. It is
the act itself which constitutes the offense and not the motive
or intent. Intent to gain is a mental state, the existence if
which is demonstrated by the overt acts of the person. The
mental state is presumed from the commission of an ulawful
act. (Cunlao v. CA) again, intent to gain is a mental state,
the existence of which is demonstrated by the overt acts as
person, as the keeping of stolen items for subsequent selling.
ACTS PUNISHABLE:
30
that he does not have sufficient funds in or credit with the
drawee bank, for the payment of such check in full upon its
presentment, which check is subsequently dishonored by the
drawee bank for insufficiency of funds, or credit, or would
have been dishonored for the same reason had not the
drawee, without any valid reason, ordered the bank to stop
payment.
NOTICE, AN INDISPENSABLE
REQUISITE FOR PROSECUTION OF BP 22
31
The drawee bank has the duty to cause to be written,
printed or stamped in plain language thereon, or attached
thereto the reason for the drawee’s dishonor or refusal to pay
the same. If the drawee bank fails to do so, prosecution for
violation of BP 22 may not prosper.
The drawee bank has not only the duty to indicate that
the drawer stopped the payment and the reason for the stop
payment. The drawee bank is further obligated to state
whether the drawer of the check has sufficient funds in the
bank or not.
AGREEMENT OF PARTIES
REGARDING THE CHECK
IS NOT A DEFENSE
32
the check is issued, delivered or uttered in the Philippines,
even if the same is payable outside of the Philippines (De Villa
v. CA)
33
amount of the check if presented within a period of 90 days
from the date appearing thereon, for which reason, it is
dishonored by the drawee bank.
34
drawer, without valid reason, ordered the bank to stop
payment. (Uy v Court of Appeals, GR 119000, July 28, 1997)
JURISDICTION IN
BP 22 CASES
35
credit with the drawee bank . . . shall fail to keep sufficient
funds or to maintain a credit to cover the full amount of the
check if presented within a period of ninety (90) days from
the date appearing thereon, for which reason it is dishonored
by the drawee bank," "knowledge" is an essential ingredient
of the offense charge. As defined by the statute, knowledge,
is, by itself, a continuing eventuality, whether the accused be
within one territory or another. This being the case, the
Regional Trial Court (now, MeTC) of Baguio City has
jurisdiction to try Criminal Case No. 2089-R (688).
36
payment of which was subsequently refused for insufficiency
of funds. It is important to stress, however, that this is not a
conclusive presumption that forecloses or precludes the
presentation of evidence to the contrary. (Lim Lao v CA;
6/20/97)
37
THE PENALTY OF IMPRISONMENT IN CASES OF
VIOLATION OF B.P. 22 WAS NOT DELETED.
A
word on the modified penalty imposed by the RTC. Contrary
to its reasoning, the penalty of imprisonment in cases of
violation of B.P. 22 was not deleted. As clarified by
Administrative Circular 13-2001, the clear tenor and intention
of Administrative Circular 12-2000 is not to remove
imprisonment as an alternative penalty, but to lay down a
rule of preference in the application of the penaltie provided
for in B.P. 22.
(Bernardo vs. People, G.R. No. 166980, April 3, 2007)
In
Wong v. Court of Appeals, the Court ruled that the 90-day
period provided in the law is not an element of the offense.
Neither does it discharge petitioner from his duty to maintain
sufficient funds in the account within a reasonable time from
the date indicated in the check. According to current banking
practice, the reasonable period within which to present a
check to the drawee bank is six months. Thereafter, the
check becomes stale and the drawer is discharged from
liability thereon to the extent of the loss caused by the delay.
(Arceo, Jr. vs. People, G.R. No. 142641, July 17, 2009)
VIOLATION OF B.P. 22
38
worthless checks, nonetheless, courts should not apply the
law strictly or harshly. Its spirit and purpose must be
considered.
39
RICARDO SUAREZ VS. PEOPLE OF THE PHILIPPINES,
G.R. 172573, June 19, 2008
40
procedural due process requires that a notice of dishonor be
sent to and received by the petitioner to afford the
opportunity to avert prosecution under B.P. Blg. 22.
41
any other person, in connection with any contract or
transaction between the Government and any other part,
wherein the public officer in his official capacity has to
intervene under the law.
42
(i) Directly or indirectly becoming interested, for personal
gain, or having a material interest in any transaction or
act requiring the approval of a board, panel or group of
which he is a member, and which exercises discretion in
such approval, even if he votes against the same or does
not participate in the action of the board, committee,
panel or group.
Interest for personal gain shall be presumed against those
public officers responsible for the approval of manifestly
unlawful, inequitable, or irregular transaction or acts by
the board, panel or group to which they belong.
UNEXPLAINED WEALTH,
MEANING
MEANING OF
“CAUSING UNDUE INJURY”
43
The act of giving any private party any unwarranted
benefit, advantage or preference is not an indispensable
element of causing any undue injury to any part, although
there may be instances where both elements concur.
(Santiago vs Garchitorena, et al., 2 Dec. 93).
44
(e). Causing any undue injury to any party, including
the Government, or giving any private party any unwarranted
benefits, advantage or preference in the discharge of his
official administrative or judicial functions through manifest
partiality, evident bad faith or gross inexcusable negligence.
This provision shall apply to officers and employees of offices
or government corporations charged with the grant of
licenses or permits or other concessions.
45
SUSPENSION UNDER R.A. 3019 MANDATORY
BUT COURTS ARE ALLOWED TO DETERMINE
WHETHER INFORMATION IS VALID OR NOT
46
SCRA 1292, that "The ruling, therefore, that 'when the people
have elected a man to office it must be assumed that they did
this with knowledge of his life and character and that they
disregarded or forgave his faults or misconduct if he had been
guilty of any' refers only to an action for removal from office
and does not apply to a criminal case"
47
PRE-CONDITION OF SUSPENSION
(PREVENTIVE) UNDER SEC. 13, RA 3019
GUIDELINES TO BE FOLLOWED
IN PREVENTIVE SUSPENSION CASES
48
(c) By way of broad guidelines for the lower
courts in the exercise of the power of suspension from
office of public officers charged under a valid
information under the provisions of Republic Act No.
3019 or under the provisions of the Revised Penal
Code on bribery, pursuant to section 13 of said Act, it
may be briefly stated that upon the filing of such
information, the trial court should issue an order with
proper notice requiring the accused officer to show
cause at a specific date of hearing why he should not
be ordered suspended from office pursuant to the
cited mandatory provisions of the Act. Where either
the prosecution seasonably files a motion for an order
of suspension or the accused in turn files a motion to
quash the information or challenges the validity
thereof, such show-cause order of the trial court
would no longer be necessary. What is indispensable
is that the trial court duly hear the parties at a hearing
held for determining the validity of the information,
and thereafter hand down its ruling, issuing the
corresponding order of suspension should it uphold
the validity of the information or withhold such
suspension in the contrary case.
49
finds the ground alleged in the quashal motion not to
be indubitable, then it shall be called upon to issue the
suspension order upon its upholding the validity of the
information and setting the same for trial on the
merits.' (Segovia v. Sandiganbayan)
(Llorente v. Sandiganbayan;
GR 122166, Mar. 11, 1998)
50
"Bad faith does not simply connote bad judgment or
negligence; it imputes a dishonest purpose or some moral
obliquity and conscious doing of a wrong; a breach of sworn
duty through some motive or intent or ill will; it partakes of
the nature of fraud. (Spiegel v Beacon Participations, 8 NE
2nd Series 895, 1007). It contemplates a state of mind
affirmatively operating with furtive design or some motive of
self interest or ill will for ulterior purposes (Air France v.
Carrascoso, 18 SCRA 155, 166-167). Evident bad faith
connotes a manifest deliberate intent on the part of the
accused to do wrong or cause damage."
51
2) Said officer has neglected or has refused to act
without sufficient justification after due
demand or request has been made on him;
(Llorente v. Sandiganbayan)
SUSPPENSION (PREVENTIVE) OF
LOCAL OFFICIALS SHALL ONLY
BE FOR 60 DAYS
52
fixed or indefinite period, may be cancelled or shortened at
will by the incumbent. (Doromal v. Sandiganbayan; GR 85468,
Sepr. 7, 1989)
ELEMENTS
ESSENTIAL ELEMENTS
53
3. He either:
a. Intervenes or takes part in his official capacity in
connection with such interest; or
b. Is prohibited from having such interest by the
Constitution or by law.
54
'is not reasonably knowable' is unacceptable, as it
provides an interpretation that defeats or negates the
intent of the law, which is written in a clear and
unambiguous language and thus provides no room for
interpretation but only application.
JURISPRUDENCE:
55
Marcos cronies. Accordingly, the preliminary investigation
conducted by the PCGG leading to the filing of the first
information is void ab initio, and thus could not be considered
as having tolled the fifteen (15)-year prescriptive period,
notwithstanding the general rule that the commencement of
preliminary investigation tolls the prescriptive period. After
all, a void ab initio proceeding such as the first preliminary
investigation by the PCGG could not be accorded any legal
effect by this Court.
56
decided within the period; otherwise, it will continue for
ninety (90) days.
57
in the instant case], he, the stranger, is sheltered by the
same roof and protected by the same intimacy of life it
affords. It may not be his house, but it is, even for a brief
moment, "home" to him. He is entitled to respect even for
that short moment." (People v. Alfeche)
58
application of the mandatory death penalty to the rape of a
12-year old victim by the common-law husband of the girl's
grandmother. The Court said:
59
recognized and protected by the state and a citizen with the
duty to serve the common weal and defend and preserve
society.
60
DEATH PENALTY WAS NOT
ABOLISHED BUT MERELY SUSPENDED
61
(8) Destructive arson if what is burned is (a) one or
more buildings or edifice; (b) a building where
people usually gather; (c) a train, ship or airplane
for public use; (d) a building or factory in the
service of public utilities; (e) a building for the
purpose of concealing or destroying evidence Or a
crime; (f) an arsenal, fireworks factory, or
government museum; and (g) a storehouse or
factory of explosive materials located in an
inhabited place; or regardless of what is burned, if
the arson is perpetrated by two or more persons
(Sec. 10);
(9) Rape attended by any of the following
circumstances: (a) the rape is committed with a
deadly weapon; (b) the rape is committed by two
or more persons; and (c) the rape is attempted or
frustrated and committed with homicide (Sec. 11);
(10) Plunder involving at least P50 million (Sec. 12);
(11) Importation of prohibited drugs
(Sec. 13);
(12) Sale, administration, delivery, distribution, and
transportation of prohibited drugs (id.);
(13) Maintenance of den, dive or resort for users of
prohibited drugs (id.);
(14) Manufacture of prohibited drugs (id.);
(15) Possession or use of prohibited drugs in certain
specified amounts (id.);
(16) Cultivation of plants which are sources of prohibited
drugs (id.)
(17) Importation of regulated drugs
(Sec. 14);
(18) Manufacture of regulated drugs (id.);
(19) Sale, administration, dispensation, delivery,
transportation, and distribution of regulated drugs
(id.);
(20) Maintenance of den, dive, or resort for users of
regulated drugs (Sec. 15);
(21) Possession or use of regulated drugs in specified
amounts (Sec. 16);
(22) Misappropriation, misapplication or failure to
account dangerous drugs confiscated by the
arresting officer (Sec. 17);
(23) Planting evidence of dangerous drugs in person or
immediate vicinity of another to implicate the latter
(Sec. 19); and
(24) Carnapping where the owner, driver or occupant of
the carnapped motor vehicle is killed or raped (Sec.
20).
(People v. Echegaray)
62
WHAT ARE THE MANDATORY
CRIMES PUNISHABLE BY MANDATORY
DEATH PENALTY UNDER RA 7659
63
xxx xxx xxx
64
the maximum penalty [of death] herein provided shall be
imposed." (Sec. 13)
65
(9) Drug offenses if convicted are government officials,
employees or officers including members of police agencies
and armed forces
(11) In all the crimes in RA. No. 7659 in their qualified form
66
Thus, construing R.A. No. 7659 in pari materia with the
Revised Penal Code, death may be imposed when (1)
aggravating circumstances attend the commission of the
crime as to make operative the provision of the Revised Penal
Code regarding the imposition of the maximum penalty; and
(2) other circumstances attend the commission of the crime
which indubitably characterize the same as heinous in
contemplation of R.A. No. 7659 that justify the imposition of
the death, albeit the imposable penalty is reclusion perpetua
to death. (People v. Echegaray)
67
than the acts which invoke it. Yet the mounting zeal for its
abolition seems to arise from a sentimentalized
hyperfastidiousness that seeks to expunge from the society
all that appears harsh and suppressive. If we are to preserve
the humane society we will have to retain sufficient strength
of character and will to do the unpleasant in order that
tranquillity and civility may rule comprehensively. It seems
very likely that capital punishment is a . . . necessary, if
limited factor in that maintenance of social tranquillity and
ought to be retained on this ground. To do otherwise is to
indulge in the luxury of permitting a sense of false delicacy to
reign over the necessity of social survival." (People v.
Echegaray)
68
Constitution, to apply them. And for the guidance of the
members of the judiciary we feel it incumbent upon us to
state that while they as citizens or as judges may regard a
certain law as harsh, unwise or morally wrong, and may
recommend to the authority or department concerned, its
amendment, modification, or repeal, still, as long as said law
is in force, they must apply it and give it effect as decreed by
the law-making body. (People v. Veneracion)
69
involving heinous crimes, the Congress hereafter provides for
it. Any death penalty already imposed shall be reduced to
reclusion perpetua" (Emphasis supplied) only the penalty of
reclusion perpetua could be imposed by the trial court. Hence,
the attended aggravating circumstances in this case had no
impact upon the determination of the proper penalty by the
trial court. By Republic Act No. 7659 (effective 31 December
1993), Congress re-imposed the death penalty for certain
heinous crimes, including robbery with homicide and robbery
with rape. By the same statute, Article 294 of the Revised
Penal Code was amended to read as follows: "Any person
guilty of robbery with the use of violence against or
intimidation on any person shall suffer: 1. The penalty of
reclusion perpetua to death, when by reason or on occasion
of the robbery, the crime of homicide shall have been
committed, or when the robbery shall have been
accompanied by rape or intentional mutilation or arson. . . .
(Emphasis supplied) Article 294 of the Revised Penal Code, as
amended by R.A. No. 7659, however, cannot be applied
retroactively in this case. To do so would be to subject the
appellant to the death penalty which could not have been
constitutionally imposed by the court a quo under the law in
effect at the time of the commission of the offenses. (People
v. Timple)
70
something against his or her will, be it right or
wrong;
71
paragraph of the amended Section 20 and also as the
maximum of the penalty where the quantity of the dangerous
drugs involved is less than those so specified in the first
paragraph. (3) Considering that the aforesaid penalty of
prision correccional to reclusion temporal shall depend upon
the quantity of the dangerous drugs involved, each of the
component penalties thereof — prision correccional, prision
mayor, and reclusion temporal — shall be considered as a
principal imposable penalty depending on the quantity, such
that the quantity of the drugs enumerated in the second
paragraph should then be divided into three, with the
resulting quotient, and double or treble the same, as the
bases for determining the appropriate component penalty. (4)
The modifying circumstances in the Revised Penal Code may
be appreciated to determine the proper period of the
corresponding imposable penalty or even to effect its
reduction by one or more degrees; provided, however, that in
no case should such graduation of penalties reduce the
imposable penalty lower than prision correccional. (5) In
appropriate instances, the Indeterminate Sentence Law shall
be applied and considering that R.A. No. 7659 has
unqualifiedly adopted the penalties under the Revised Penal
Code with their technical signification and effects, then the
crimes under the Dangerous Drugs Act shall now be
considered as crimes punished by the Revised Penal Code;
hence, pursuant to Section 1 of the Indeterminate Sentence
Law, the indeterminate penalty which may be imposed shall
be one whose maximum shall be within the range of the
imposable penalty and whose minimum shall be within the
range of the penalty next lower in degree to the imposable
penalty. With the foregoing as our touchstones, and it
appearing that the quantity of the shabu recovered from the
accused in this case is only 0.0958 gram, the imposable
penalty under the second paragraph of Section 20 of R.A. No.
6425, as further amended by Section 17 of R.A. No. 7659,
should be prision correccional. Applying the Indeterminate
Sentence Law, the accused may then be sentenced to suffer
an indeterminate penalty ranging from six (6) months of
arresto mayor as minimum to six (6) years of prision
correccional as maximum.
72
(1) The time when the offender determined to commit
the crime; (2) an act manifestly indicating that the offender
had clung to his determination; and (3) sufficient lapse of
time between the determination and the execution to allow
the offender to reflect on the consequences of his act. (PP
-vs- ROGELIO GALAM, Accused-Appellant. G.R. No.
114740, Feb. 15, 2000)
73
proclamation of amnesty. (PP -vs- CHARITO ISUG
MAGBANUA, G.R. No. 128888, Dec. 3, 1999)
74
President to grant executive clemency under Section 19,
Article VII of the Constitution. (Sec. 4)
75
machinery, tool or instrument used or intended to
be used in the manufacture of any firearm or
ammunition: Provided, That no other crime was
committed.
76
licensed firearm outside his residence without
legal authority therefor."
77
violating the provisions of the preceding
paragraphs."
78
permit to possess the same. (People v. Castillo,
325 scra 613)
79
Illegal possession of firearm is a crime punished by
special law, a malum prohibitum, and no malice or intent to
commit a crime need be proved. (People v. Lubo, 101 Phil.
179) To support a conviction, however, there must be
possession coupled with intent to possess (animus
possidendi) the firearm. (Supra)
80
There is no law which renders the use of an
unlicensed firearm as an aggravating circumstance in
homicide or murder. Under an information charging
homicide or murder, the fact that the death weapon
was an unlicensed firearm cannot be used to
increase the penalty for the 2nd offense of homicide
or murder to death (or reclusion perpetua under the
1987 Constitution). The essential point is that the
unlicensed character or condition of the instrument
used in destroying human life or committing some
other crime, is not included in the inventory of
aggravating circumstances set out in Article 14 of the
Revised Penal Code.
ACTS PUNISHABLE:
81
similar firepower, part of firearm, ammunition, or machinery,
tool or instrument used or intended to be used in the
manufacture of any firearm or ammunition”
MALUM PROHIBITUM
82
principle is the undesirability of the proliferation of
firearms and their free traffic and possession. This is clear
from the first two “whereas” clause of P.D. 1866. It is then
clear that illegal possession, etc. is a malum prohibitum.
For purpose of simplicity we will confine our analysis to
“possession”, although what we will discuss hereunder
applies to manufacture, dealing in, acquiring or disposing
as well.
83
b.)Animus possidendi may also be inferred from the fact
that an unlicensed firearms was under the apparent
control and power of the accussed. (People v.
Verches, 33 SCRA 174)
84
the presumption of animus possidendi. To
convict, the court needs proof beyond
reasonable doubt of animus possidendi.
85
he has no permit to carry it outside his
residence (Pastrano v. Court of Appeals, 281
SCRA 287). A fortiori, the use of a licensed
firearm by one not licensed or permitted to
use it would still be illegal possession.
86
2.2. It is also clear that where either homicide or
murder is committed with the use of an unlicensed
firearm, such use shall constitute an “aggravating
circumstances”. It is well known that R.A. 8294 was
initiated by Senator Ramon Revilla as a favor to his
friend Robin Padilla who was then serving sentence
for illegal possession. It was therefore meant to be
more benevolent, as it is in the penalties it impose.
Senator Revilla, however, could not see far enough
(and regrettably neither could other legislators) and
the effect at least in the case of murder is that it
may send the accused to the lethal injection
chamber where otherwise he would not be meted out
the death penalty. People v. Montinola, G.R. 131856-
57 (July 1, 2001) with the Chief Justice himself as
ponente illustrates the complication the law has
introduced. In this case, the accused had been
charged with two offenses: robbery with homicide
and illegal possession of firearms. During the
pendency of the case, the amended law came into
force. The court then held that insofar as R.A. 8294
was favorable to the accused in that it spared him
from separate prosecution for illegal possession, the
charge for illegal possession was dropped. Insofar,
however, as it increased the penalty for robbery with
homicide, the aggravating circumstances of the use
of unlicensed weapon could not be appreciated. Rule
110, Section 9 of the Revised Rules of Criminal
Procedure will apply: As an aggravating
circumstances, the use of the unlicensed weapon
must be alleged in the information.
87
19, 2000) provides the answer in the distinctively
clear language of Justice Panganiban: “The law is
clear: the accused can be convicted of simple illegal
possession of firearms, provided that “no other crime
was committed by the person arrested’. If the
intention of the law in the second paragraph were to
refer only to homicide and murder, it should have
expressly said so, as it did in the third paragraph.
Verily, where the law does not distinguish, neither
should we.” In brief, where the accused commits a
crime other than those enumerated with the use of
an unlicensed weapon, no separate charge for such
use will be brought against him. Consistent with this
is the disposition by the Supreme court decreed:
“Accordingly, all pending cases for illegal possession
of firearms should be dismissed if they arose from
the commission” of crimes other than those indicated
in Section 1 and 3 of R.A. 8294.
88
animus possidendi or an intent to possess on the part of the
accused.
89
(People -vs- Victor Macoy, GR No.
126253, August 16, 2000)
90
In the light of "People -vs- Martin Simon," 234 SCRA
555, and Articles 13 and 14, in relation to Article 63, of the
Revised Penal Code and the Indeterminate Sentence Law for
violation of the Revised Penal Code may now be applied for
violation of PD 1866, as amended, and Republic Act 6425, as
amended.
91
If a constabulary soldier entrusted his gun to the accused for
safekeeping and later the accused found in possession of the
gun, the accused is guilty of possession of unlicensed firearm.
To exculpate himself, the accused must prove absence of
animus possidendi.
(People -vs- Perlito Soyang, et al., 110 Phil. 565, 583)
92
firearm be considered as an aggravating circumstance as it
will be less favorable to the accused. If the accused used a
sumpak to kill the victim, the prosecution must prove that he
had no license or permit to possess the sumpak.
(People -vs- Cipriano de Vera,
G.R. No. 121462-63, June 9, 1999)
93
that the use of an unlicensed firearm to commit murder is
only a generic aggravating circumstance is no longer true.
94
each crime. Based on the facts of the case, the crime for
which the appellant may be charged is homicide,
aggravated by illegal possession of firearm, the correct
denomination for the crime, and not illegal possession of
firearm, aggravated by homicide as ruled by the trial
court, as it is the former offense which aggravates the crime
of homicide under the amendatory law.
95
merely bolsters the case for the prosecution but does not
stand as proof of the fact of absence or lack of a
license." (emphasis supplied) (PP -vs- JULIAN CASTILLO Y
LUMAYRO, G.R. No. 131592-93, Feb. 15, 2000)
96
UNDER R.A. 8294 A SEPARATE CONVICTION FOR ILLEGAL
POSSESSION OF FIREARMS AND FOR HOMICIDE IS NOT
ALLOWED
JURISPRUDENCE:
97
People vs Reynaldo Cruz, G.R. No. 76728, August 3,
1988
98
unlicensed firearm. To exculpate himself, the accused must
prove absence of animus possidendi.
99
commonly known as a dictaphone or dictagraph or
dectaphone or walkie-talkie or tape recorder, or however
otherwise described:
LISTENING TO CONVERSATION
IN EXTENSION LINE OF TELEPHONE
IS NOT WIRE-TAPPING
100
be moved from place to place within a radius of a kilometer or
more. A person should safely presume that the party he is
calling at the other end of the line probably has an extension
telephone and he runs the risk of a third party listening as in
the case of a party line or a telephone unit which shares its
line with another.
Purpose:
101
Meralco’s employees. That the ERB representative was
allegedly present when the meter was examined in the
Meralco laboratory will not cure the defect.
102
WHEN SEXUAL HARASSMENT IS COMMITTED:
103
(3) When the sexual favor is made a condition to
the giving of a passing grade, or the granting
of honors and scholarships or the payment of
a stipend, allowance or other benefits,
privileges, or considerations; or
JURISPRUDENCE:
104
In this case, it was held that: “In grave misconduct,
the elements of corruption, clear intent to violate the law, or
flagrant disregard of established rule must be manifest. The
act of petitioner of fondling one of his students is against law,
RA 7877, and is doubtless inexcusable. The particular act of
petitioner cannot in any way be construed as a case of simple
misconduct. Sexually molesting a child is, by any norm, a
revolting act that it cannot be categorized as a grave offense.
Parents entrust the care and molding of their children to
teachers, and expect them to be their guardians while in
school. Petitioner has violated that trust. The charge of
grave misconduct proven against petitioner demonstrates his
unfitness to remain as a teacher and continue to discharge
the functions of his office.”
RELIGIOUS INSTRUCTION
105
TERMINATION OF RIGHTS OF PARENTS
Prohibited Acts:
106
SUSPENSION OF SENTENCE AND COMMITMENT
OF YOUTHFUL OFFENDER
PD 1210
ARTICLE 191 OF PD 603 IS HEREBY
AMENDED TO READ AS FOLLOWS
107
custody of his parents or other suitable person who shall be
responsible for his appearance whenever required. However,
in the case of those whose cases fall under the exclusive
jurisdiction of the Military Tribunals, they may be committed
at any military detention or rehabilitation center.
PD 1210
ARTICLE 192 OF PD 603 AS AMENDED IS FURTHER
AMENDED TO READ AS FOLLOWS:
108
punishable by death or life imprisonment or to one who is
convicted for an offense by the Military Tribunals.
PD 1179
APPEAL
RA 7610
CHILD ABUSE LAW
109
The penalty of reclusion temporal in its medium period to
reclusion perpetua shall be imposed upon the following:
ATTEMPT TO COMMIT
CHILD PROSTITUTION
110
pension house, apartelle or other similar establishments,
vessel, vehicle or any other hidden or secluded area under
circumstances which would lead a reasonable person to
believe that the child is about to be exploited in prostitution
and other sexual abuse.
CHILD TRAFFICKING
ATTEMPT TO COMMIT
CHILD TRAFFICKING
111
(c) When doctor, hospital or clinic official or
employee, nurse, midwife, local civil registrar or
any other person simulates birth for the purpose
of child trafficking;
OBSCENE PUBLICATIONS
AND INDECENT SHOWS
112
other conditions prejudicial to the child's development
including those covered by Article 59 of Presidential Decree
No. 603, as amended, but not covered by the Revised Penal
Code, as amended, shall suffer the penalty of prision mayor
in its minimum period.
113
(2) Act as conduit or middlemen in drug
trafficking or pushing; or
(3) Conduct any illegal activities, shall suffer
the penalty of prision correccional in its
medium period to reclusion perpetua.
114
(c) Delivery of basic social services such as
education, primary health and emergency relief services shall
be kept unhampered;
115
shall commit such child to the custody or care of the
Department of Social Welfare and Development or to any
training institution operated by the Government, or duly-
licensed agencies or any other responsible person, until he
has had reached eighteen (18) years of age or, for a shorter
period as the court may deem proper, after considering the
reports and recommendations of the Department of Social
Welfare and Development or the agency or responsible
individual under whose care he has been committed.
CONFIDENTIALITY
116
RA 7658
EMPLOYMENT OF CHILDREN
117
Labor and Employment which shall ensure observance of the
child.
118
productive and law-abiding citizen. Caution, however, is given
to the trial court. To begin with, the youthful offender is not
to be tried anew for the same act for which he was charged.
The inquiry is not a criminal prosecution but is rather limited
to the determination of the offender's proper education and
rehabilitation during his commitment in the Training Center
and his moral and social fitness to re-join the community.
(Pp. V. Galit; GR 97432, 3/1/94)
119
had lost his reason or was demented prior to or during the
perpetration of the crime. (Pp. v. Cordova, supra.)
120
well as Art. 197) he was no longer entitled to suspension of
sentence. (Villanueva v. CFI; GR L-45798, 12/15/82)
JURISPRUDENCE:
121
More importantly, AAA cannot be considered a child
under Section 3(a) of R.A. No. 7610 which reads:
122
offender cannot be accused of both crimes for the same act
because his right against double jeopardy will be prejudiced.
A person cannot be subjected twice to criminal liability for a
single criminal act. Likewise, rape cannot be complexed with
a violation of Section 5(b) of RA 7610. Under Section 48 of
the Revised Penal Code (on complex crimes), a felony under
the Revised Penal Code (such as rape) cannot be complexed
with an offense penalized by a special law.
123
annual percentage rate; 2) annual and other fees; 3) and
balance calculation method; 4) cash advance fee; and 5))
over the limit fee.
124
The Court said notwithstanding the fact that the
contract of the parties is a contract of adhesion the same is
valid. However, if the same should include terms difficult to
interpret as to hide the true intent to the detriment of the
holder, holding it void requires no hesitation. Thus, contracts
which provide for ambiguous terms of payment, imposition of
charges and fees may be held void invoking the principle of
the contract of adhesion.
125
access device is written not in the ordinary course of the
possessor's business; or d) any genuine access device, not in
the name of the possessor.
126
In this case, two employees of the Asian-Pacific
Broadcasting Co,. Inc. (ABCI) applied for nineteen (19( credit
cards with Citibank using different names other than their real
names. The Citibank approved the applications and the credit
cards were delivered to them for use. However, this case
involves an illegal dismissal case where a Citibank employee
was found guilty of gross negligence for effecting the delivery
of the credit cards. Her dismissal was affirmed in this case.
127
On the other hand, a holder or mere possessor of a
counterfeit fraudulently applied for access device may be
convicted and be made to suffer imprisonment and fine.
JURISPRUDENCE:
PD 704
THE PHILIPPINE FISHERIES CODE (R.A. 8550)
Objectives:
128
c. Improvement of productivity of aquaculture within
ecological limits;
d. Optimal utilization of offshore and deep-sea resources;
and
e. Upgrading of post-harvest technology.
129
O.G. 4269), expressly punishes electro fishing in fresh water
and salt water areas.
ILLEGAL RECRUITMENT
JURISPRUDENCE:
130
Illegal recruitment is committed when two elements
concur, namely: (1) the offender has no valid license or
authority required by law to enable him to lawfully engage in
the recruitment and placement of workers; and (2) he
undertakes any activity within the meaning of “recruitment
and placement” defined under Article 13(b) of the Labor
Code. Recruitment and placement is “any act of canvassing,
enlisting, contracting, transporting, utilizing, hiring or
procuring workers; and includes referrals, contact services,
promising or advertising for employment, locally or abroad,
whether for profit or not: Provided, that any person or entity
which, in any manner, offers or promises for a fee
employment to two or more persons shall be deemed
engaged in recruitment and placement.”
131
under Article 39(c) of the Labor Code. Corollarily, where
the offense is committed against three or more persons, it is
qualified to illegal recruitment in large scale which provides a
higher penalty under Article 39(a) of the same Code.
(Emphasis supplied.)
132
fee to the complaining witnesses to warrant his conviction for
illegal recruitment.
xxxx
133
To sustain a conviction under this provision, the
prosecution needs to establish sufficiently the identity of the
buyer, seller, object and consideration; and, the delivery of
the thing sold and the payment thereof. What is material is
proof that the transaction or sale actually took place, coupled
with the presentation in court of the substance seized as
evidence. The commission of the offense of illegal sale of
dangerous drugs requires merely the consummation of the
selling transaction, which happens the moment the buyer
receives the drug from the seller. Settled is the rule that as
long as the police officer went through the operation as a
buyer and his offer was accepted by appellant and the
dangerous drugs delivered to the former, the crime is
considered consummated by the delivery of the goods.
134
drug, were identified and offered in evidence. There is also
no question that appellants knew that what they were selling
and delivering was shabu, a dangerous drug.
135
The essential elements of the crime of illegal possession
of regulated drugs are the following: 1) the actual possession
of an item or object which is identified to be a prohibited
drug; (2) such possession is not authorized by law; and (3)
the accused freely or consciously possessed the said drug.
136
mind, may be determined on a case-to-case basis by taking
into consideration the prior or contemporaneous acts of the
accused, as well as the surrounding circumstances. Its
existence may and usually must be inferred from the
attendant events in each particular case.
137
signification and effects. In fact, for purposes of determining
the maximum of said sentence, we have applied the
provisions of he amended Section 20 of said law to arrive at
prision correctional and Article 64 of the Code to impose the
same in the medium period. Such offense, although provided
for in a special law, is now in the effect punished by and
under the Revised Code.
CULTIVATION
JURISPRUDENCE:
CHAIN OF CUSTODY
138
PEOPLE OF THE PHILIPPINES VS. ROSALES, G.R. NO.
177220, APRIL 24, 2009
139
“by the very nature of anti-narcotics operations, the need for
entrapment procedures, the use of shady characters as
informants, the ease with which sticks of marijuana or grams
of heroin can be planted in pockets of or hands of
unsuspecting provincial hicks, and the secrecy that inevitably
shrouds all drug deals, the possibility of abuse is great. Thus,
courts have been exhorted to be extra vigilant in trying drug
cases lest an innocent person is made to suffer the unusually
severe penalties for drug offenses.” Accordingly, specific
procedures relating to the seizure and custody of drugs have
been laid down in the law (R.A. No. 9165) for the police to
strictly follow. The prosecution must adduce evidence that
these procedures have been followed in proving the elements
of the defined offense.
140
R.A. No. 9165 had placed upon the law enforcers the
duty to establish the chain of custody of the seized drugs to
ensure the integrity of the corpus delicti. Thru proper exhibit
handling, storage, labeling and recording, the identity of the
seized drugs is insulated from doubt from their confiscation
up to their presentation in court.
PD 705:
JURISPRUDENCE:
141
(2) Possession of timber or other forest products without
the legal documents required under existing forest
laws and regulations.
JURISPRUDENCE:
142
Amado Taopa, vs. People of the Philippines, G.R. No.
184098, November 25, 2008
143
THE CRIME OF LAUNDERING
(REPUBLIC ACT NO. 9160)
Purpose:
144
f) To apply before the Court of Appeals, ex parte, for the
freezing of any monetary instrument or property alleged
to be the proceeds of any unlawful activity as defined in
Section 3(i) hereof;
COMPOSITION OF AMLC
145
officers and private persons who are in conspiracy with such
public officers shall be under the jurisdiction of the
Sandiganbayan. (Sec. 5, RA 9160)
JURISPRUDENCE:
146
day cannot be deemed “habitual”, as it does not amooffiunt
to a customary practice or use”.
DEFINITION OF TERMS
147
payment, remittance, and transfer companies
and other similar entities, and (iv) other
entities administering or otherwise dealing in
currency, commodities or financial derivatives
based thereon, valuable objects, cash
substitutes and other similar monetary
instruments or property supervised or
regulated by Securities and Exchange
Commission.(Sec. 3-a, RA 9160)
148
8. Any transactions that is similar or analogous to
any of the foregoing. (Sec. b-1, RA 9160 as
amended by RA 9194)
149
(11) Violations under Republic Act No. 8792,
otherwise known as the Electronic Commerce Act
of 2000;
150
P.D. 533 OR ANTI-CATTLE RUSTLING LAW
Definition
151
provision which is not found in the decree, but which could
not have been intended to be discarded or eliminated by the
decree. Article 64 of the same Code should, likewise, be
applicable x x x.
JURISPRUDENCE:
Purpose:
152
Its purpose is to prevent the increasing number of
deaths due to hazing and other forms of initiation rites.
Purpose:
153
exhaustion (Samar Mining Co. vs. Arnado, GR No. 22304, July
30, 1968) and finding multiple petitions or complaints for
cause that has been previously rejected in the false
expectation of getting favorable action. (Gabriel vs. Court of
Appeals, G.R. No. 43757, July 30, 1976, 72 SCRA 173;
Ramos vs. Potenciano, G.R. No. 27104, Dec. 20, 1976, 74
SCRA 345; Macias v. Uy Kim, G.R. No. 31174, May 30, 1972,
45 SCRA 251) Acts of this or similar nature are grounds for
disciplinary action.”
JURISPRUDENCE:
Enrile vs. Hon. Amin, (G.R. No. 93335, Sept. 13, 1990)
RA NO. 6539:
AN ACT PREVENTING AND PENALIZING
CARNAPPING
154
application for credit card, without informing the credit card
company of the place where he could actually be found, if at
the time of such abandonment or surreptitious leaving, the
outstanding and unpaid balance is past due for at least ninety
(90) days and is more that ten thousand pesos (P10,000.00),
shall be prima facie presumed to have used his credit card
with intent to defraud.
155
Under Section 2 of RA 6539, carnapping is the taking,
with intent to gain, of a motor vehicle belonging to another
without the latter’s consent; or by means of violence against
or intimidation of persons; or with the use of force upon
things . . . RA 7659 introduced three amendments to the last
clause of Section 14: (1) the change of the penalty from life
imprisonment to reclusion perpetua, (2) the inclusion of rape,
and (3) the change of the phrase “in the commission of the
carnapping” to “in the course of the commission of the
carnapping or on the occasion thereof. “The Court has held
that the third that the third amendment clarifies the intention
of the law to make the offense a special complex crime, in the
third amendment clarifies the intention of the law to make the
offense a special complex crime, in the same way, that
robbery with violence against or intimidation of persons is
treated under paragraphs 1 to 4 Article 294 of the Revised
Penal Code (RPC). Hence, the prosecution must prove not
only that the essential requisites of carnapping were present;
but also that it was the original criminal design of the culprit,
and that the killing was perpetrated “in the course of the
commission of the carnapping or on the occasion thereof.” In
the present case, the prosecution had the burden of proving
that 1) appellant took the motorcycle; 2) his original criminal
design was carnapping; 3) he killed Payla; and 4) the killing
was perpetrated “in the course of the commission of the
carnapping or on the occasion thereof”. It is indisputed that
the motorcycle driven by Payla had been taken without his
consent on October 29, 1995, and recovered days later in a
cannibalized condition. The elements of taking and intent to
gain were thus established. The prosecution also proved it
was appellant who had killed him. It failed, however, to
discharge its burden of proving the two other requisites of
carnapping.
156
vehicle is killed or raped in the course of the commission of
the carnapping or on the occasion thereof. Three
amendments have this been made, viz: (1) the change of the
penalty of life imprisonment to reclusion perpetua, (2) the
inclusion of rape, and (3) the change of the phrase “in te
commission of the carnapping” to “in the course of the
commission of the carnapping or on the occasion thereof”.
The latter makes clear the intention of the law to make the
offense a special complex crime, by way of analogy vis-à-vis
paragraphs 1 to 4 of Article 294 of the Revised Penal Code on
robbery with violence against or intimidation of persons. As
such, the killing (or the rape) merely qualifies the crime of
carnapping in an aggravated from. In short, considering the
phraseology of the amended Section 14, the carnapping and
the killing (or the rape) may be considered as a single or
indivisible crime or a special complex crime which, however,
is not covered by Article 48 of the Revised Penal Code.
157
learning how to drive, or enjoying a free ride, takes
possession of a vehicle belonging to another, without the
consent of its owner, he is guilty of theft because by taking
possession of the personal property belonging to another and
using it, his intent to gain is evident since he derives
therefrom utility, satisfaction, enjoyment and pleasure.
Justice Ramon C. Aquino cites in his work Groizard who holds
that the use of a thing constitutes gain and Cuello Calon who
calls it “hurt de uso”. (underscoring supplied; citation
omitted)
In the instant case, Edma did not resort to, or avail or,
any administrative remedy. He went straight to court and
filed a complaint for replevin and damages. Section 8 of
Presidential Decree No. 705, as amended, states that (1) all
actions and decisions of the Bureau of Forest Development
Director are subject to review by the DENR Secretary, (2) the
decisions of the DENR Secretary are appealable to the
President; and (3) courts cannot review the decisions of the
DENR Secretary except through a special civil action for
certiorari or prohibition. In Dy, the Court held that all actions
seeking to recover forest products in the custody of the DENR
shall be directed to that agency – not the courts.
Leonardo Paat, et. al. v. Court of Appeals, et al., G.R.
No. 111107, 10 January 1997)
158
DANGEROUS DRUG ACT OF 2002
(Republic Acts No. 9165)
DEFINITIONS OF TERMS
159
Illegal Trafficking – 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.
160
4. the provisions of the Revised Penal Code have no
suppletory effect except for minors who may be sentenced
to reclusion perpatua.
Methylenedioxymethamphetamine (MDMA) or
commonly known as “Ecstasy”, or its any other name which
refers to the drugs having such chemical composition,
including any of its isomers or derivatives in any form.
Paramethoxyamphetamine (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 in accordance to Section 93, Art XI of this Act of
R.A. 9165.
161
quantity and purity involved, or acting as a broker in any
of such transactions.
162
20) Possession of Dangerous Drugs During Parties, Social
Gathering or Meetings.
163
entity, the partner, president, director, manager,
trustee, estate administrator, or officer who consents
to or knowingly tolerates such violation shall be held
criminally liable as co-principal.
3. The penalty provided for the offense under the Law
shall be imposed upon the partner, president,
director, manager, trustee, estate administrator, or
officer who knowingly authorizes, tolerates, or
consents to the use of a vehicle, vessel, aircraft,
equipment or other facility as an instrument in the
importation, sale, trading, administration,
dispensation, delivery, distribution, transportation, or
manufacture of dangerous drugs, or chemical
diversion, if such vehicle, aircraft, equipment or
other instrument is owned by or under the control or
supervision of the partnership, corporation,
association or juridical entity to which they are
affiliated.
164
1. Any elective local or national official found to have (1)
benefited from the proceeds of the trafficking of dangerous
drugs as prescribed in the Law, or has (2) received any
financial or material contributions or donations from natural
or juridical persons found guilty of trafficking dangerous
drug as prescribed in the law, 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 (\sec.27)
ACCESORY PENALTIES
165
AGGRAVATING CIRCUMSTANCES
DRUG RELATED CASES
166
e.) Any employment of a practitioner,
chemical engineer, public official or
foreigner.
167
provisions of Republic Act No. 6981 or the Witness
Protection, Security and Benefits Act of 1991, any person
who has violated Sections 7,11, 12, 14, 15 and 19,
Article II of this Act, who voluntarily gives information
about any violation of Section 4, 5, 6, 8, 13 and 16,
Article II of this Act as well as any violation of the
offenses mentioned if committed by drug syndicate, or of
any information leading to the whereabouts, identities
and arrest of all or any of the members thereof; and who
willingly testifies against such persons as described
above, shall be exempted from the prosecution or
punishment for the offense with reference to which
his/her information of testimony in bar of such
prosecution; Provided, that the following condition
concur:
168
finally, that there is no direct evidence available for the
State except for the information and testimony of the
said informant or witness.
TERMINATION OF THE
GRANT OF IMMUNITY
169
b.)Applicants for firearm’s license and permit to carry
firearms outside of residence. – All applicants for
firearms license and permit to carry firearms
outside of residence shall undergo a mandatory
drug test to ensure that they are free from the
use of dangerous drugs; Provided, That all
persons who by the nature of their profession
carry firearms shall undergo drug testing;
170
submission program, or who was charged for violation of
Section 15 of this Act, shall be covered by Section 60 of this
Act (R.A. 9165). However, the record of a drug dependant
who was not rehabilitated, or who escaped but did not
surrender himself/herself within the prescribed period, shall
be forwarded to the court and their use shall be determined
by the court, taking into consideration public interest and the
welfare of the drug dependant (Sec. 64)
A. Function
B. Composition
171
Under R.A. 6424 as amended, the Dangerous Drug
board was composed of seven ex officio members as
follows: (a) The Minister of Health or his representative;
(b) the Minister of Justice or his representative; (c) The
Minister of National Defense or his representative; (d)
The Minister of Education and Culture or his
representative; (e) The Minister of Finance or his
representative; (f) The Minister of Social Service and
Development or his representative; and (g) The
Minister of Local Government or his representative
(Sec. 35 Art. 8, R.A. 6424)
172
representative; (4) Secretary of the Department of
Finance or his/her representative; (5) Secretary of the
Department of Labor and Employment or his/her
representative; (6) Secretary of the Department of
Interior and Local Government or his/her
representative; (7) Secretary of the Department of
Social Welfare and Development or his/her
representative; (8) Secretary of the Department of
Foreign Affairs or his/her representative; (9) Secretary
of the Department of Education or his/her
representative; (10) Chairman of the Commission of
Higher Education or his/her representative; (11)
Chairman of the National Youth Commission; and (12)
Director General of the Philippine Drug Enforcement
Agency.
A. Functions
Carry out the provision of the Dangerous Drug act of
2002. The Agency shall served as the implementing arm of
the Dangerous Drug Board, and shall be responsible for
the efficient and effective law enforcement of all provisions
of any dangerous drug and/or controlled precursor and
essential chemicals as provided for in the Law. (Sec. 82).
The existing Secretariat of the National Drug Law
Enforcement and Prevention Coordinating Center as
created by Executive Order No. 61 is hereby modified and
absorbed by the PDEA (Sec. 83, R.A. 9165)
173
B. Powers and Duties
174
g.)Recommend to the DOJ the forfeiture of properties
and other assets of persons and/or corporations
found to be violating the provisions of this Act and
in accordance with the pertinent provisions of the
Anti-Money Laundering Act of 2002.
175
m.) Established and maintain close coordination,
cooperation and linkages with international drug
control and administration agencies and
organization and implement the applicable
provisions of international conventions and
agreement related to dangerous drugs to which the
Philippines is a signatory;
176
President himself/herself or as recommended by
the congressional committees concerned.
Note:
PRELIMINARY INVESTIGATION
OF DANGEROUS DRUG CASES
177
The Department of Justice shall designate special
prosecutors to exclusively handle cases involving violations
of the Dangerous Drug Act of 2002 (Sec. 90)
178
During the pendency of the case in the Regional Trial
Court, no property, or income derived thereform, which
may be confiscated and forfeited, shall be disposed,
alienated or transferred and the same shall be in custodio
legis and no bond shall be admitted for the release of the
same.
179
equipment, the same shall be submitted to the
PDEA Forensic Laboratory for a qualitative
examination;
180
sample/s shall be kept to a minimum quantity as
determined by the Board;
SUSPENSION OF SENTENCE OF
FIRST-TIME MINOR OFFENDER
181
An accused who is over fifteen (15) years of age at the
time of the commission of the offense mentioned in
Section 11 of R.A. 9165 but not more that eighteen (18)
years of age at the time when the judgment should have
been promulgated after having been found guilty of said
offense, may be given the benefits of a suspended
sentence, subject to the following conditions:
PROMULAGATION OF SENTENCE
FOR FIRST-TIME OFFENDER
182
Upon promulgation of the sentence, the court may, in
its discretion, place the accused under probation, even if the
sentence provided under this Act is higher than that provided
under existing law on probation, or impose community service
in lieu of imprisonment. In case of probation, the supervision
and rehabilitative surveillance shall be undertaken by the
Board through the DOH in coordination with the Board of
Pardons and Parole and the Probation Administration. Upon
compliance with the conditions of the probation, the Board
shall submit a written report to the court recommending
termination of probation and a final discharge of the
probationer, whereupon the court shall issue such an order.
183
The immediate superior of the member of the law
enforcement agency or any other government employee
mentioned in the preceding paragraph shall be penalized with
imprisonment of not less than two (2) months and one (1)
day but not more than six (6) years and a fine of not less
than ten thousand (P10,000.00) but not more than Fifty
thousand (P50,000.00) and in addition, perpetual absolute
disqualification from public office if despite due notice to them
and to the witness concerned the former does not exert
reasonable effort to present the latter to the court
184
RECORDS TO BE KEPT BY THE
DEPARTMENT OF JUSTICE
185
COST-SHARING IN THE TREATMENT AND REHABILITATION
OF A DRUG DEFENDENT
EXCEPTION TO NECESSITY
OF A SEARCH WARRANT
186
adduced must be clear and convincing. (People v. Girang;
GR 27949, 2/1/95)
BUY-BUST OPERATION
Appellant would next argue that the evidence against him was
obtained in violation of Sections 21 and 86 of Republic Act No.
9165 because the buy-bust operation was made without any
involvement of the Philippine Drug Enforcement Agency
(PDEA). Prescinding therefrom, he concludes that the
prosecution’s evidence, both testimonial and documentary,
was inadmissible having been procured in violation of his
constitutional right against illegal arrest.
187
and other emoluments and privileges granted to their
respective positions in their original mother agencies.
POSEUR-BUYER, GENERALLY
NEED NOT TESTIFY
188
invaluable service to the police. (People v. Girang; GR
97949, 2/1/95)
189
The appellants are now precluded from assailing the
warrantless search and seizure when they voluntarily
submitted to it as shown by their actuation during the search
and seizure. The appellants never protested when SPO3 Jesus
Faller, after identifying himself as a police officer, opened the
tin can loaded in the appellants' vehicle and found eight (8)
bundles. And when Faller opened one of the bundles, it
smelled of marijuana. The NBI later confirmed the eight (8)
bundles to be positive for marijuana. Again, the appellants
did not raise any protest when they, together with their cargo
of drugs and their vehicle, were brought to the police station
for investigation and subsequent prosecution. We have ruled
in a long line of cases that:
190
commission thereof; hence, such use is not an aggravating
circumstance. (People v. Correa)
5. Customs search;
191
In People v. Tangliben, acting on information
supplied by informers, police officers conducted a surveillance
at the Victory Liner Terminal compound in San Fernando,
Pampanga against persons who may commit misdemeanors
and also on those who may be engaging in the traffic of
dangerous drugs. At 9:30 in the evening, the policemen
noticed a person carrying a red travelling bag who was acting
suspiciously. They confronted him and requested him to open
his bag but he refused. He acceded later on when the
policemen identified themselves. Inside the bag were
marijuana leaves wrapped in a plastic wrapper. The police
officers only knew of the activities of Tangliben on the night of
his arrest.
192
warrant requirement. Aruta, on the other hand, was searched
while about to cross a street.
193
be illegal; hence any item seized from Aminnudin could not
be used against him.
194
WHEN SEARCH IS NOT VALID
195
submission or an implied acquiescence to the unreasonable
search. The instant case is similar to People v. Encinada.
(People v. Menguin)
196
search cannot be categorized as a search of a moving vehicle,
a consented warrantless search, a customs search, or a stop
and frisk; it cannot even fall under exigent and emergency
circumstances, for the evidence at hand is bereft of any such
showing.
x x x
197
search warrant; they failed to secure one. There was no
showing of urgency or necessity for the warrantless search,
or the immediate seizure of the marijuana plants. (People vs.
Alberto Pasudag)
JURISPRUDENCE:
198
operation. What determines if there was, indeed, a sale of
dangerous drugs is proof of the concurrence of all the
elements of the offense. (People v. Nicolas, G.R. No. 178876,
June 27, 2008)
Presumption of Regularity
199
In determining the credibility of prosecution witnesses
regarding the conduct of buy-bust operation, the “objective
test,” as laid down in People v. Doria, is utilized. It has been
held that it is the duty of the prosecution to present a
complete picture detailing the buy-bust operation—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 of the illegal subject of sale. The manner by which
the initial contact was made, the offer to purchase the drug,
the payment of the buy-bust money, and the delivery of the
illegal drug must be the subject of strict scrutiny by courts to
insure that law-abiding citizens are not unlawfully induced to
commit an offense. (People v. Ong, G.R. No. 175940, Feb. 6,
2008)
Proof of Buy-Bust
200
poseur-buyer. (People v. Santiago, et.al., G.R. No. 175326,
Nov. 28, 2007)
Presentation of Money Used; Buy Bust Operation
201
Failure to Present Informant
202
punishable offense. (People v. Clemente, et.al., G.R. No.
178876, June 27, 2008)
203
16, 2008; People v. Ruiz Garcia, G.R. No. 173480, Feb. 25,
2009; People v. Cervantes, G.R. No. 181494, March 17, 2009)
204
Section 36 of R.A. 9165 provides:
xxxx
xxxx
205
In addition to the above stated penalties in this Section,
those found to be positive for dangerous drugs use shall be
subject to the provisions of Section 15 of this Act.
206
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.
207
random, and suspicionless drug testing proceeds from the
reasonableness of the drug test policy and requirement.
208
Assuming that Sections 21 and 86 were indeed
breached, appellant should have raised these issues before
the trial court. This, he did not do. Never did he question the
custody and disposition of the items that were supposedly
taken from him. It was only on appeal before the Court of
Appeals that he raised them. This, he cannot do. We held:
Negative Allegation
209
essential element of a crime, the prosecution has the burden
to prove the charge. However, this rule admits of exceptions.
Where the negative of an issue does not permit of direct
proof, or where the …………… onus probandi rests upon him.
Stated otherwise, it is not incumbent on the prosecution to
adduce positive evidence to support a negative averment the
truth of which is fairly indicated by established circumstances
and which, if untrue, could readily be disproved by the
production of documents or other evidence within the
defendant’s knowledge or control. For example, where a
charge is made that a defendant carried on a certain business
without a license (as in the case at bar, whether the accused
is charged with the sale of a regulated drug without
authority), the fact that he has a license is a matter which is
peculiarly within his knowledge and he must establish that
fact or suffer conviction. x x x (italics in the original) (Su Zhi
Shan @ Alvin Ching So, v. People G.R. No. 169933,
March 9, 2007)
210
imprisonment to death provided herein shall be
reclusion perpetua to death.
ACQUITTAL:
211
accused by the apprehending officer; second, the turnover of
the illegal drug seized by the apprehending officer to the
investigating officer; third, the turnover by the investigating
officer of the illegal drug to the forensic chemist for laboratory
examination; and fourth, the turnover and submission of the
marked illegal drug seized from the forensic chemist to the
court. In this case, however, SPO2 Sanchez’ testimony lacks
specifics on how the seized shabu was handled immediately
after the accused-appellant’s arrest. SPO2 Sanchez’
testimony regarding the post-arrest police investigation failed
to provide particulars on whether the shabu was turned over
to the investigator. The pieces of evidence notably fail to
identify the person who personally brought the seized shabu
to the PNP Crime Laboratory. They also fail to clearly identify
the person who received the shabu at the forensic laboratory.
212
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 therof.
213
seized items were handled from the time they left the hands
of PO3 Tougan. PO3 Tougan mentioned a certain Inspector
Manahan as the one who signed the request for laboratory
examination. He did not however relate to whom the custody
of the drugs was turned over. Furthermore, the evidence of
the prosecution did not reveal the identity of the person who
had the custody and safekeeping of the drugs after its
examination and pending presentation in court. The failure of
the prosecution to establish the chain of custody is fatal to its
cause. All told, the identity of the corpus delicti in this case
was not proven beyond reasonable doubt.
214
- Sales v. People, G.R. No. 182296, April 7, 2009
215
any representative from the media and the Department of
Justice, or any elected official had been present during this
inventory, or that any of these people had been required to
sign the copies of the inventory. In addition, while PO1
Garcia duly testified on the identity of the buyer and seller, on
the consideration that supported the transaction, and on the
manner the sale took place, -the prosecution’s evidence failed
to establish the chain that would have shown that the
marijuana presented in court was the very item seized from
Ruiz at the time of his arrest.
216
and photographed at least in appellant’s presence. Even
more telling is the fact that, as elicited from Velasco himself
during his cross-examination, no evidence custodian had been
designated by the raiding team to safeguard the identity and
integrity of the evidence supposedly seized from appellant.
R.A. No. 9165 had placed upon the law enforcers the duty
to establish the chain of custody of the seized drugs to ensure
the integrity of the corpus delicti. Thru proper exhibit
handling, storage, labeling and recording, the identity of the
217
seized drugs is insulated from doubt from their confiscation up
to their presentation in court. While the seized drugs may be
admitted in evidence, it does not necessarily follow that the
same should be given evidentiary weight if the procedure in
Section 21 of R.A. No. 9165 was not complied with. The
Court stressed that the admissibility of the seized dangerous
drugs in evidence should not be equated with its probative
value in proving the corpus delicti. The admissibility of
evidence depends on its relevance and competence while the
weight of evidence pertains to evidence already admitted and
its tendency to convince and persuade. All told, the corpus
delecti in this case is not legally extant.
218
reasonable safeguard, People vs. Del Castillo declared that the
approval by the court which issued the search warrant is
necessary before police officers can retain the property seized
and without it, they would have no authority to retain
possession thereof and more so to deliver the same to
another agency. Mere tolerance by the trial court of a
contrary practice does not make the practice right because it
is violative of the mandatory requirements of the law and it
thereby defeats the very purpose for the enactment.
CONVICTION:
219
buy-bust operation in his presence, or his counsel, a
representative from the media, a representative from the
Department of Justice, or any elected public official. The
Court, however, finds that there was substantial compliance
with the law and the integrity of the drugs seized was
preserved. PO3 Arago seized and confiscated the dangerous
drugs, as well as the marked money, appellant was
immediately arrested; and in that spot where he was
arrested, PO3 Arago marked the sachets of shabu with the
initials of appellant. PO2 Aguinaldo also marked the two (2)
sachets he found in appellant’s person with appellant’s initials.
Appellant was then brought to the police station for
investigation. Immediately thereafter, the plastic sachets
were forwarded to the PNP Crime Laboratory with a request
for examination to determine the presence of any prohibited
drug. As per Physical Science Report No. D-747-03, the
specimens submitted contained methamphetamine
hydrochloride or shabu.
220
trial the safekeeping of the items seized from him. Thorough
review of the records, however, reveals that the chain of
custody of the seized substance was not broken and that the
prosecution did not fail to identify properly the drugs seized in
this case.
221
link in the chain of custody of the seized shabu from the time
they were first discovered until they were brought for
examination.
222
arrest and even though he knew it was against the law to so
possess it in any amount.
223
This Court has held that non-compliance with Section 21,
Article II of R.A. No. 9165 will not render an accused’s arrest
illegal or the items seized/confiscated from him inadmissible.
What is of utmost importance is the preservation of the
integrity and the evidentiary value of the seized items, as the
same would be utilized in the determination of the guilt or
innocence of the accused.
224